George v State of New South Wales

Date of orders: 06 August 2025

Decision date: 06 August 2025

Jurisdiction: Civil

Before: Catsanos SC DCJ

Decision: (1) Judgment in favour of the plaintiff in the sum of $953,244.
(2) I reserve the questions of costs and interest if claimed.
(3) If orders for costs and/or interest are agreed, the parties are to provide my Associate with proposed Short Minutes of Order within seven days. To the extent there is an absence of agreement, I direct the parties to confer and approach my Associate within seven days for the purpose of re-listing the matter for argument, with an agreed timetable for the service of evidence if considered necessary.

Catchwords: WORKERS COMPENSATION – work injury damages – negligence – psychiatric injury – bullying and harassment – scope and content of employer’s duty of care – whether employer vicariously liable for conduct of superior officer – whether duty breached – whether breach causative of injury
DAMAGES – competing causes of incapacity – whether tortious injury causative of loss of earning capacity – proper approach to the assessment of damages – discount to be applied to take account of unrelated causes of incapacity
STATUTORY INTERPRETATION – whether loss of superannuation benefits subject to cap under s 151I Workers Compensation Act 1987 (NSW)

Legislation Cited: Civil Liability Act 2002 (NSW), s 5B
Law Reform (Vicarious Liability) Act 1983 (NSW), s 8
Superannuation Guarantee (Administration) Act 1992 (Cth)
Workers Compensation Act 1987 (NSW), Pt 5, ss 151D, 151G, 151I, 151IA

Cases Cited: Allianz Australia Ltd v Sim [2012] NSWCA 68
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Campton v Centennial Newstan Pty Ltd [2015] NSWSC 410
Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14
DNM Mining Pty Ltd v Barwick [2004] NSWCA 137
Duffin v Mount Arthur Coal Pty Ltd [2020] NSWSC 229
Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1284
Government Insurance Office (NSW) v Rosniak (1992) 27 NSWLR 665
Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60
Kempsey District Hospital v Thackham (1995) 36 NSWLR 492
Keogh v CPB Contractors Pty Ltd & Ors (No 2) [2024] NSWDDT 9
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15
Kozarov v Victoria (2022) 273 CLR 115; [2022] HCA 12
McGoldrick v Dendrobium Coal Pty Ltd [2022] NSWSC 1341
Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377
Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344
State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4
Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

Category: Principal judgment

Parties: Ralph George (Plaintiff)
State of New South Wales (Defendant)

Representation: Counsel:
R Sheldon SC / E Welsh / W Lidden (Plaintiff)
D Stanton / N Hogan (Defendant)
Solicitors:
Brydens Lawyers (Plaintiff)
Bartier Perry Lawyers (Defendant)

File Number(s): 2023/00120433

Publication restriction: Nil

JUDGMENT

The Claim

1. The plaintiff brings a claim in negligence for damages in respect of psychiatric injury allegedly caused as a result of bullying and harassment in the course of his employment as a police officer.

2. As the defendant correctly points out, strictly speaking, the office held by the plaintiff does not make him the defendant’s employee as such (see State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 at [44]). However, the defendant admits that the plaintiff was at all times in a position analogous to that of an employee and accepts it owed him a duty of care. It is common ground that the plaintiff’s claim is regulated by Pt 5 of the Workers Compensation Act 1987 (NSW). Accordingly, damages are limited to economic loss only.

3. The defendant denies breach of duty, or alternatively, denies any causal connection between breach and damage. Beyond that, the defendant disputes the quantum of the plaintiff’s damages. While pleaded, defences of failure to mitigate and contributory negligence were not pressed in the running of the case.

4. The defendant also raised a defence under s 151D of the Workers Compensation Act, namely, that the proceedings had been commenced more than three years after the alleged date of injury without the Court’s leave. That was dealt with as a preliminary matter, and in a separate judgment at the commencement of the trial I determined that the plaintiff was entitled to a grant of leave under s 151D, nunc pro tunc.

The Evidence

5. To understand the issues thrown up in this case, it is necessary to consider the factual evidence as it unfolded before me. What follows is not an exhaustive account of that evidence but rather a summary of some of the more significant matters informing the disposition of the plaintiff’s claim.

The Plaintiff’s Evidence in Chief

6. The plaintiff gave evidence over three days, punctuated by breaks due to his expressed difficulty in coping. I make the observation that the plaintiff impressed me as a genuine and straightforward witness, and I formed the view that he did his best to answer questions honestly and was struggling with his emotions at times.

7. The plaintiff was born in 1979. After finishing high school he obtained a Bachelor of Computer Science and then in 2002 joined the NSW Police Force, commencing general duties as a Probationary Constable in May 2003. He undertook numerous roles over the years that followed, eventually being promoted to the rank of Detective Constable in 2007 and Detective Senior Constable in 2008. In 2009 the plaintiff commenced working with the Terrorism Investigation Squad before being promoted to the rank of Detective Sergeant.

8. There was no issue that between 2002 and 2009 the plaintiff was exposed to numerous distressing events in the course of his work as a police officer performing general duties.

9. In December 2012 the plaintiff injured his lower back when arresting a suspect. This led to time off work, surgery and ongoing treatment, with the plaintiff being placed on restricted duties, which predominantly reflected the fact that he was not able to carry a gun.

10. In February 2014 the plaintiff, by then a Detective Sergeant, commenced working with the Professional Standards Command (PSC). At that time the plaintiff was still having treatment for his lower back and was taking part in a pain management programme being run by Dr Wood. He was also seeing a back specialist, Dr Bentivoglio. The plaintiff described taking pain medication and sometimes having cortisone injections. He was also participating in a return-to-work programme aimed at getting him back to unrestricted duties.

11. The plaintiff gave evidence that when he started at the PSC he was working full-time hours plus a little bit of overtime, performing internal investigations in connection with police corruption and misconduct. The plaintiff said that in his first few months at the PSC his back “wasn’t good, but it was bearable”.

12. At the PSC the plaintiff came under the supervision of Detective Inspector Robert Duncan (DI Duncan). He had not known DI Duncan before, although they had a common acquaintance in a fellow police officer, Anthony Beckett.

13. The plaintiff said initially his working relationship with DI Duncan was good. In his words:

“He liked me, because Anthony Beckett put a good word in for me, and he treated me really well and worked all my cases, and I worked all his cases” (Tcpt 31.13 – 31.15).

14. The plaintiff described DI Duncan as being like his partner. He said:

“so every time we went out, we went out together. If my matter needed any follow-up, he’d help me with it, if any of his matters needed following up, I’d help him with it” (Tcpt 31.19 – 31.22).

15. Over his time at the PSC the plaintiff continued having treatment for his back. He changed from seeing Dr Bentivoglio to Dr Parkinson but continued seeing Dr Wood at the Prince of Wales Hospital.

16. The plaintiff was asked whether he saw his doctors during work hours and said:

“I would just – like everybody else, I would just tell Inspector Duncan that I’ve got a doctor’s appointment, and then I would just go to it, and then come back to work” (Tcpt 32.39 – 32.41).

17. The plaintiff said he would use a police vehicle to attend those appointments.

18. The plaintiff described a seminal event in March 2015, concerning a police motor vehicle which had been detected speeding by a speed camera (the speeding incident).

19. According to the plaintiff, up to the time of the speeding incident his relationship with DI Duncan had been “perfect” and he was continuing to see his doctors for treatment in an arrangement which he described as very flexible.

20. The plaintiff explained that there was uncertainty as to who had been driving the police vehicle at the time of the speeding incident. He said from the beginning DI Duncan kept saying it was either the plaintiff or another officer, Senior Constable Moore. According to the plaintiff, DI Duncan would approach him and Senior Constable Moore saying that one of them had been responsible and they should work it out and let him know who was driving.

21. Although the plaintiff checked his duty book, he was unable to determine if he had been driving the vehicle at the time.

22. The plaintiff said he could tell the incident upset DI Duncan, who appeared fraught and frustrated.

23. At one point, DI Duncan said to the plaintiff:

“You probably had a doctor’s appointment. I wouldn’t be surprised if it was you… You need to take responsibility for it” (Tcpt 35.38 – 35.40).

24. The plaintiff says to this day he does not know if he was the person responsible but, in the circumstances, he paid the speeding fine within weeks of it having been issued.

25. The plaintiff described how everything changed after the speeding incident. Whereas before, DI Duncan had communicated with the plaintiff verbally, afterwards, communications were by email. When the plaintiff arrived at work in the morning he was no longer greeted by DI Duncan, unlike before the speeding incident when DI Duncan would invite the plaintiff into his office to talk socially and have what the plaintiff described as a “small chitchat”.

26. As the plaintiff put it:

“The friendly Robert Duncan wasn’t there anymore. He was purely professional, so, everything was done by email” (Tcpt 36.43 – 36.44).

27. The plaintiff’s evidence as to the events which followed the speeding incident and their effects on him included the following:

28. On one occasion DI Duncan called the plaintiff into his office and told him he was no longer allowed to see his doctors in work hours and he would have to see doctors in his own time (the meeting with DI Duncan). DI Duncan also told the plaintiff “he had [an] issue with my back injury and me being restricted, and that I may be removed from the command” (Tcpt 37.23 – 37.24). This left the plaintiff feeling anxious and confused.

29. Following the meeting with DI Duncan the plaintiff went back to his desk and wrote an email to DI Duncan, copying in his Injury Management Officer and his Superintendent, Kerry Lewis (the email in response).

30. Following DI Duncan’s directive the plaintiff stopped attending his medical appointments, saying:

“I stopped, because I wasn’t able to see them before work or after work or during work. My flexible roster was taken away from me and I was locked into a start time and a finish time that – where I just – they’re all specialists; I can’t see them on weekends, so I stopped seeing doctors” (Tcpt 38.12 – 38.15).

4. The whole command was on a flexible roster which enabled people to adjust starting times, go home early, or work only four days a week, provided they worked a designated 38-hour week. However, after the meeting with DI Duncan the plaintiff no longer had that flexibility. There were “plenty” of other officers having medical treatment during work hours and the plaintiff was not aware of any other person in the PSC who had their flexible roster removed. He was the only person not permitted to see medical practitioners during work hours.
5. This made the plaintiff feel hopeless and captive of DI Duncan. As he put it:

“I felt, ultimately, everything rested in his hands and, by making me start at 8am every morning, I couldn’t make an appointment before work, I couldn’t make an appointment after work, I couldn’t see him during work, I couldn’t take part in the recon program, [1] and I didn’t know what to do” (Tcpt 38.45 – 38.48).

28. Although the plaintiff did not think the change in his roster and the interruption to his medical treatment caused his back problem to get worse, he said it definitely did not get better and the progress he had been making stopped.

29. The plaintiff said that after he sent the email in response a meeting was arranged involving Superintendent Lewis, DI Duncan, the plaintiff’s Injury Management Officer, the Human Resources Manager, and a support person, Detective Sergeant Ralph (the meeting with Superintendent Lewis). That meeting took place within a week of the meeting with DI Duncan.

30. The plaintiff gave evidence that when he attended the meeting with Superintendent Lewis, he felt attacked by DI Duncan who continually brought up the speeding incident. The plaintiff was told he should cut his work hours and see doctors, effectively, during time which would be paid by the workers compensation insurer. The plaintiff understood that to mean he would be working less than 38 hours a week and would be paid the shortfall by the workers compensation insurer, which would enable him to see his doctors.

31. The plaintiff described how following the meeting with Superintendent Lewis, DI Duncan called a team meeting which included all of the Detectives and Senior Constables that reported to the plaintiff, as well as the other Detective Sergeants. In that meeting DI Duncan said the plaintiff would be working less hours, he would no longer take on any cases and would be an assistant to the Detective Senior Constables. Instead of reporting to DI Duncan, the plaintiff would now report to another Detective Sergeant.

32. The plaintiff felt he had been unofficially demoted. In his words, he felt “belittled, embarrassed, anxious, really stressed and hopeless” (Tcpt 40.40 – 40.41).

33. After this, the plaintiff had no involvement with DI Duncan. He considered it had been implied in the team meeting that he would no longer have any more cases. The plaintiff described feeling punished, in trouble and not trusted.

34. Whereas DI Duncan had been involved in ongoing investigations with the plaintiff prior to the speeding incident, those investigations were subsequently reallocated to other Detective Sergeants and the plaintiff was not told why that was done. Again, to quote the plaintiff:

“As a Detective Sergeant, he stripped me. I felt any authority that I had was gone. I felt boxed in. I just felt like there was no hope, like there’s nothing I can do about this” (Tcpt 41.45 – 41.47).

35. The plaintiff said he had been physically able to cope with the investigations he had been doing prior to the reallocation. He had been completing all of his work, including during the weeks when he attended medical appointments.

36. The plaintiff said the email in response included a request to see a psychologist. He described how after this DI Duncan came to the plaintiff’s desk and flicked a copy of the email in response at him, saying, “How dare you. I disagree, but you can go” (Tcpt 42.32). The plaintiff said that, as a result, he was shaking, scared, and extremely anxious. He was also embarrassed because everyone around heard what had been said.

37. The plaintiff interpreted DI Duncan’s comments of “How dare you” to be a reference to the plaintiff going over DI Duncan’s head and bringing the matter to the attention of Superintendent Lewis. The plaintiff felt that DI Duncan did not want him to go see a psychologist, but because it had been put in writing, he was forced to let the plaintiff go.

38. The plaintiff’s evidence was that after the meeting with Superintendent Lewis, while on reduced hours he did manage to see some treating doctors but he would also have to see them on his rostered days off and sometimes had to move his roster around.

39. This could be problematic. As the plaintiff described it:

“So I’d make a doctor’s appointment, but the roster would roster me on the same day, so I would need to do a shift change. So to do that, I had to go and ask Duncan, and he’d either approve it or not approve the shift change. Then I’d have to go through the rosters. A lot of it was put in writing, and the whole process became very complex” (Tcpt 43.29 – 43.34).

40. The plaintiff was no longer allowed to use police vehicles when he went to appointments during work hours. Again, he said the restrictions imposed on him in relation to seeing doctors during work hours did not apply to other officers in the PSC.

41. The plaintiff described how DI Duncan would also demand to know what doctors he was seeing:

“He would – so on my day off, he would write me an email and say, ‘where did you go yesterday; which doctor, where is his phone number?’, and I took that he wanted to check that I actually had a doctor’s appointment on my day off” (Tcpt 43.39 – 43.42).

42. The plaintiff felt this was unnecessarily intrusive. It felt like a whole new low and his anxiety went “through the roof”. He said:

“I didn’t want to come into work anymore. I’d wake up – I remember waking up to my alarm every morning and I’d be like not this again, I don’t want to go in anymore” (Tcpt 43.46 – 43.48).

43. In the weeks and months which followed the meeting with DI Duncan the plaintiff’s communications with DI Duncan were purely by email. This made him feel unworthy of being spoken to. As he put it:

“I wasn’t worthy of even being spoken to. I was dead wood, I was useless. I was unofficially demoted. I remember a lot of anxiety, I remember a lot of anxiety. I just didn’t want to be there anymore” (Tcpt 44.10 – 44.13).

44. The plaintiff contrasted this treatment of him by DI Duncan with other officers in the unit. He described seeing DI Duncan speaking with other officers in a casual way, saying:

“Yeah, they’d go into his office and talk about the footy and stuff that continued. I wasn’t allowed to do – to do that anymore. He’d never come to my desk and talk socially about the weekend, or anything of that; that’s completely stopped. He wouldn’t make eye contact with me. If I tried to make eye contact and say hello, he wouldn’t respond, or he’d – he’d give me an angry look. I was so uncomfortable being there. I was paranoid about everything that I did because I was getting reprimanded for everything, even stuff that was unreasonable” (Tcpt 44.20 – 44.27).

45. The plaintiff described how following the meeting with Superintendent Lewis he had taken a month off work, describing his anxiety as “through the roof” and “uncontrolled” (Tcpt 45.31). The plaintiff said it was nothing like he had felt before in his life. He was withdrawn and did not want to talk to anyone or be around anyone.

46. The plaintiff described his time off work for that month of stress leave following the meeting with Superintendent Lewis in the following terms:

“I was always worried about when I had to go – when I eventually had to go back. And that made the anxiety worse, or it was a month of my brain not stop thinking. It was just like a CD on repeat, and my brain would just be reliving everything that I had experienced beforehand. My brain just wouldn’t stop” (Tcpt 45.46 – 45.50).

47. The plaintiff also spoke of his sleep being disturbed at that point, of not being able to achieve deep sleep, and “reliving work stuff in my head. It’s like my brain didn’t even stop during my sleep” (Tcpt 46.05). He described nightmares in which he was arguing with DI Duncan or other people at work. These, he said, occurred on a weekly basis, sometimes a few times a week.

48. The plaintiff spoke of his fear of being reprimanded and removed from the PSC. That fear, he said, was always present.

49. Within a few months of his meeting with Superintendent Lewis, the plaintiff started feeling that nothing had changed so he would have to leave.

50. It is fair to say the timelines became somewhat blurred during the plaintiff’s evidence. This is perhaps understandable given the emotional content of the evidence and the effluxion of time since the events in question. Nonetheless it is clear that the speeding incident, the meeting with DI Duncan and the meeting with Superintendent Lewis provide points of reference for the plaintiff’s allegations.

51. The plaintiff gave evidence of seeing Dr Jacobs, psychiatrist, who prescribed him Prozac, although he was unsure when he first saw Dr Jacobs.

52. At a point a few months after the events involving DI Duncan the plaintiff went to Goulburn to undertake a course. Whilst on that course, the plaintiff said the problematic disc in his lower back ruptured. He described having surgery at the hand of Dr Parkinson on 13 April 2016, which he believed was the next day. Following that the plaintiff had a period of recovery at home, during which he continued to see his psychiatrist, Dr Jacobs. On 18 July 2016 the plaintiff eventually got back to work with the PSC on restricted duties. The plaintiff said that when he returned to work nothing changed so far as his relationship with DI Duncan was concerned.

53. It is clear the plaintiff has misremembered timeframes, as that surgery occurred more than 12 months after the speeding incident and the records indicate that DI Duncan last worked in December 2015 (see Exhibit DX-18).

54. In any event, having pursued other positions following his decision to find alternative work, the plaintiff eventually found a position with the Australian Criminal Intelligence Commission (ACIC). This was an executive management position which involved the plaintiff undertaking investigations and carried a rank equivalent to Detective Inspector. Whilst working at ACIC the plaintiff took leave without pay from the NSW Police Force.

55. The plaintiff started at ACIC in November 2016. He described his back at that time as not being 100% “but was very manageable”. He was working full-time plus overtime and said he had no problems working.

56. When asked how he was feeling emotionally before starting at ACIC, the plaintiff said:

“Not good. Things changed after the speeding thing. Everything changed after that, and it never got better” (Tcpt 49.05 – 49.06).

57. The plaintiff had been working at the PSC until the time he started at ACIC. He was unable to remember when he last worked under DI Duncan who at some point suffered a stroke. As noted earlier, DI Duncan last worked in December 2015. In any event, the plaintiff said that up until the time DI Duncan last worked there was no change in his relationship with DI Duncan or the way that made him feel.

58. Whilst working for ACIC the plaintiff was operational and carried a gun. He had other investigators reporting to him. He continued to see doctors, including Dr Jacobs, and described his anxiety as “still there”, as was his paranoia. The plaintiff was unable to explain what he was anxious about, saying he got to the point where he had extreme anxiety all the time which never went away. That anxiety, he said, had started after the speeding incident.

59. Eventually the plaintiff ceased working at ACIC in circumstances where his security clearance became an issue. This arose towards the end of 2018 when Dr Jacobs sought approval from the defendant’s workers compensation insurer for the plaintiff to have electroconvulsive therapy (ECT). Eventually this, and the fact that the plaintiff was having suicidal thoughts, filtered through to the plaintiff’s supervisor at ACIC. In short, having spoken to his supervisor the plaintiff understood that if the extent of his psychiatric problems were documented, he would never obtain another security clearance anywhere. This led the plaintiff to resign from ACIC rather than run that risk.

60. At the point of his resignation from ACIC the plaintiff remained on unpaid leave with the NSW Police Force. However, he said he could not bring himself to go back to work there. In his words:

“I did not want – the thought of going back to Duncan – I was having – I was going to – having, like, a nervous breakdown. I just – the anxiety just – it’s like someone put petrol on my anxiety, and going back and being known as the person that’s suicidal now, I didn’t want to face anyone” (Tcpt 52.14 – 52.17).

61. The plaintiff described feelings of profound hopelessness at that point. With no employment options he worried how he was going to provide for his family and meet his responsibilities. He described significant anxiety which he could not escape and felt his career was at an end. The plaintiff has not worked since leaving ACIC.

62. After the plaintiff left ACIC he went to the Sydney Clinic where he underwent the ECT treatment recommended by Dr Jacobs. He felt his psychological condition got worse following that treatment.

63. The plaintiff gave evidence that, as well as working as a police officer, since 2015 he had been a councillor on the Campbelltown City Council. He said he gave that position up after two or three years because he could not function properly as a result of his anxiety. When asked as to his aspirations, the plaintiff said he had intentions of working his way up to mayor or “maybe something bigger” if the opportunity arose.

64. In describing his current state, the plaintiff said he cannot be around anyone, including his children and his wife. He and his wife sleep in separate rooms and he is in his room in bed all the time because he does not want to talk to anyone. The plaintiff said that, except for two good friends who have stuck by him, he has lost all his friends. He described his children, aged 13, 11, and 5, coming into his room and said:

“I can’t even talk to them for more than a minute/minute and a half, and then I say, ‘Sorry, baba needs to go to the toilet’, so I cut the conversation short and I pretend to go to the toilet, when I don’t need to” (Tcpt 55.03 – 55.05).

65. When asked about the possibility of going back to police work, the plaintiff said:

“I struggle to even leave my bedroom, let alone the house. I’m sedated most of the time, sleep in three-hour blocks. I struggle to be around people or talk to anyone” (Tcpt 55.14 – 55.16).

66. The plaintiff continues to take medication for his psychological problems as well as medication for his back. He said his back problems are bearable and managed with medication. They would not have stopped him working with ACIC, nor the PSC, nor as a councillor or mayor.

Cross-Examination of the Plaintiff

67. The plaintiff was challenged as to what was said to be an inconsistency between his professed anxiety and his ability to give evidence for periods of over an hour in relation to things he found distressing. This, it was suggested, highlights the exaggeration embedded in the plaintiff’s evidence that he could only talk to his children for a minute or a minute and a half when they came into his room. In response, the plaintiff said he had massive anxiety as a result of giving evidence but “pushed through”. He maintained that whilst he might be able to last long enough to talk to his children for five minutes, the time he could spend talking to them was nonetheless to be measured in minutes only.

68. Deliberate exaggeration was also said to underlie the plaintiff’s evidence as to loss of opportunity to be a councillor or mayor on the Campbelltown City Council. It was put to the plaintiff that he was only elected to the Council because he had aligned himself with the Liberal Party and was on their ticket, whereas when he previously ran in his own right, he only received 30 or 40 votes from the 80,000 voters. In 2016 when he was elected, it was put that he received only 16 primary votes.

69. The plaintiff was asked about the support structure that existed for police officers and the fact that in 2008 and 2009, after attending a fatal accident involving a child, he had availed himself of the Employees’ Assistance Program which provided access to psychologists. The plaintiff remembered the incident and whilst he did not dispute the availability of such assistance, he did not recall having used it.

70. The plaintiff was cross-examined in detail about consultations with his general practitioner, Dr Tang. The thrust of those questions was to advance the proposition that the plaintiff’s emotional problems in 2013 and thereafter were a byproduct of frustration and stress associated with his back problems.

71. Whilst it was not controversial that the traffic offence which gave rise to the speeding incident occurred on 3 March 2015, it was put to the plaintiff that the meeting with DI Duncan was in June 2015, not March 2015. This is relevant to the defendant’s submission that the timeline, when married with clinical records and complaints to doctors, establish the source of the plaintiff’s psychiatric condition to lie in his back problems rather than his interactions with DI Duncan.

72. In that vein, the plaintiff was cross-examined about seeing Dr Parkinson in late 2014 and Dr Wood in February 2015. The plaintiff was also asked about a consultation with Dr Tang in January 2015 when, according to the clinical notes, he told the doctor about his lower back pain being unbearable and causing poor sleep. Similarly, the plaintiff was asked about records indicating he told Dr Tang he was becoming frustrated and depressed because of his back becoming bad, and a history to Dr Wood in February 2015 that his problems were affecting his sleep, mood, and energy.

73. The plaintiff was then taken to March 2015 and a history to Dr Tang that, in conjunction with some medication he was taking, he was suffering extreme anxiety. At that time, it was put the plaintiff had given a history of back pain being nine out of ten.

74. The plaintiff was asked about an entry in the clinical notes of Mr Kearney, psychologist, on 11 June 2015 referring to recent work conflict and stress. The plaintiff agreed that this was a reference to the meeting with DI Duncan.

75. The plaintiff also accepted that on 13 June 2015 he probably told Dr Tang about “the new commander” wanting him to attend various doctors and see physicians in his own hours. The plaintiff accepted that the “new commander” he referred to was probably Superintendent Lewis.

76. The plaintiff accepted that on 23 June 2015 he told Dr Wood he had reduced his hours on advice from his employer in order to attend medical appointments, that his depressive symptoms were increasing, and that he was due to see Dr Jacobs.

77. It was put to the plaintiff that on reduced hours he was able to see doctors and physiotherapists as needed. However, the plaintiff, much as he had said in chief, described encountering difficulties in arranging medical appointments. He went on to say that he had been “reprimanded” by DI Duncan for starting late or finishing early while on restricted duties.

78. The plaintiff was taken to what was said to be his first consultation with Dr Jacobs on 24 June 2015, and was reminded that in his evidence in chief he had described his anxiety at that time as being “through the roof”. The plaintiff was reluctant to accept that it was June 2015 when he first saw Dr Jacobs, however he accepted he would have told the doctor about his back when he first saw him. The thrust of the proposition put to the plaintiff was that at his first consultation he complained to Dr Jacobs predominantly about his back problems, and that the emotional problems he described to Dr Jacobs had started after he hurt his back in 2012. The plaintiff said:

“Look, when I hurt my back, I do have to admit there was a psychological component. It wasn’t all physical. I didn’t feel like a man. I couldn’t do things at home and stuff like that. But that was nothing compared to after the incident, the speeding ticket incident. It’s two different things” (Tcpt 106.07 – 106.10).

79. The plaintiff rejected the proposition that his description to Dr Jacobs of the effects of the meeting with DI Duncan reflected the fact that any upset caused by that meeting was short lived. Again, the plaintiff accepted he had experienced some mood problems before the speeding incident as a result of his back, however he said it was “chalk and cheese” when compared to problems suffered after the speeding incident.

80. The plaintiff was taken to clinical entries of Dr Tang on 10 July 2015 suggesting he had been told to take time off work following the meeting with Superintendent Lewis because of problems with his back. The plaintiff firmly rejected that proposition, saying Superintendent Lewis had told him to take time off work because he was “clearly stressed”.

81. Similarly, the plaintiff was asked about a medical certificate issued by Dr Tang dated 10 July 2015, on the face of it, putting him off work until 10 August 2015 because of lower back pain, without reference to any psychological injury. The plaintiff however remained steadfast in the position that his psychological problems were incapacitating him at that time.

82. The plaintiff was asked about clinical entries made by Dr Jacobs in July 2015 which refer to flashbacks and nightmares associated with traumatic scenes experienced much earlier in the plaintiff’s employment. It was put to the plaintiff that he never told Dr Jacobs of nightmares involving DI Duncan.

83. The plaintiff became somewhat confused with the dates and had difficulty recalling what was said at specific consultations. However, he maintained that he had complained to Dr Jacobs about stress and nightmares associated with the events involving DI Duncan.

84. Whilst the plaintiff was generally prepared to accept propositions based on Dr Jacobs’ notes, he questioned whether those records were a summary rather than a verbatim account of what he said.

85. In response to questions exploring causation and the duration of stress associated with DI Duncan, the plaintiff agreed that in January 2016 he sat what was known as the ROSA test in order to become operational and wear a gun. The plaintiff passed that test and accepted that by January 2016 he was back working full duties and full hours. He could not recall telling Dr Tang on 19 March 2016 that he was managing full duties but had experienced some recent flare-ups of back pain.

86. The plaintiff was asked about the episode of back pain whilst doing a course at the Police Academy in April 2016. He could not remember telling Dr Tang on 30 May 2016 he had suffered depression since that injury and had withdrawn from friends and family. Nonetheless, the plaintiff generally accepted the accuracy of the doctor’s records.

87. The plaintiff agreed he underwent psychological screening and assessment on 23 August 2016 in order to join ACIC which, he assumed, was to determine whether he was psychologically fit for that work.

88. For the purposes of that assessment, the plaintiff disclosed problems with his back. It was put to the plaintiff that he told the examiner during the assessment he had no issues relating to interpersonal difficulties, work performance or conflict, although he did disclose a situation where he had been targeted by some colleagues for confronting them about bullying a female supervisor. The plaintiff, however, could not remember what he told the examiner. Specifically, it was put to the plaintiff that he did not make any reference to DI Duncan during the assessment. Again, the plaintiff was unable to remember. In respect of those disclosures, the plaintiff said:

“I know that I was honest, but at the same time I didn’t want to minimise my chance of getting in” (Tcpt 123.07).

89. Whilst the plaintiff was prepared to accept that when he undertook the psychological assessment for ACIC he made no reference to the significant anxiety he described in his evidence before me, he nonetheless rejected the proposition that he was not suffering from anxiety as a result of his interactions with DI Duncan. The plaintiff also accepted that he might have disclosed becoming depressed because of his back injury.

90. The plaintiff was directed to a Health Declaration which he had completed on 24 October 2016 as part of his application to join ACIC. In that declaration the plaintiff was required to address pre-existing injuries, diseases or conditions which could be exacerbated by his work, or which might prevent or restrict him from carrying out his duties. The only disclosure made was the plaintiff’s back injury of December 2012.

91. The plaintiff explained these apparent omissions by saying the back injury was the only “WorkCover” injury claim he had made. The cross-examiner pointed out that the document was not limited to WorkCover injuries, and it was put to the plaintiff the reason he made no disclosure of his psychological problems is because there were in fact no psychological problems at that time. Whilst the plaintiff disagreed with that proposition, he agreed that he may have wished to keep it from ACIC. In any event, the plaintiff said he did not feel his psychological problems would have prevented him from carrying out his duties at that time.

92. This was a matter which in due course was the subject of some focus in submissions, with the defendant arguing the plaintiff was prepared not to tell the truth in order to achieve his end or, at the very least, that the absence of reference to DI Duncan in the document is powerful evidence that the conduct of DI Duncan was not significant in the plaintiff’s mind.

93. On this issue, the plaintiff in submissions drew attention to an allied document, being a Pre-Placement Medical Assessment which was completed on 26 October 2016 as part of the ACIC employment process. In that document the plaintiff did disclose a history of anxiety and depression. However, I observe that on the face of the document, the plaintiff did not associate any anxiety and depression with causes other than his back injury.

94. The plaintiff was then taken to his time with ACIC. He agreed he was working there full-time and enjoyed the work. Specifically, he accepted that any physical or psychological problems did not stop him from performing that work.

95. The plaintiff could not remember whether he was continuing to see Dr Tang while at ACIC but accepted he was. He could not recall telling Dr Tang about a flare up of lower back pain which occurred in August 2017, and similarly, could not remember whether he had suffered left sciatic pain at that time, or whether there had been an increase in medication for his back problems.

96. The plaintiff did recall that he continued to see Dr Jacobs whilst at ACIC, as he still does. He was asked about telling Dr Jacobs in November 2017 of increased anxiety, which Dr Jacobs put down to the interaction between the analgesia and anti-depressants the plaintiff was taking. The plaintiff could not remember that. He could not remember telling Dr Jacobs about work related stress and politics at ACIC, nor reporting that he had some suicidal thoughts. In the way the questions were answered, I took the plaintiff to be unable to remember precise details, rather than being unable to recall the fact that he was suffering problems at that time. As the plaintiff put it, “The dates and what words I – what conversation I had with him I can’t remember” (Tcpt 127.33).

97. The plaintiff accepted he had flare ups of his back pain, which in general was “up and down” while he was working full-time at ACIC. He accepted he was possibly “withdrawn and isolated” at work and at home in February 2018 and accepted he told Dr Jacobs at that time he was having some self-harm thoughts.

98. The plaintiff agreed that in 2018 things started going downhill for him and Dr Jacobs wanted to admit him to hospital for treatment, in circumstances where the plaintiff was having suicidal thoughts. It was around this time that the plaintiff resigned from ACIC to protect his security clearance, as he had explained in his evidence in chief.

99. The plaintiff accepted that before he underwent the ECT treatment recommended by Dr Jacobs, he obtained a second opinion from Dr Edema, although he could not in fact recall seeing that doctor. Notwithstanding his inability to recall those consultations, the plaintiff was firm in rejecting the proposition that the problems he was suffering in 2018 were an extension of long-term psychological problems associated with his back condition. In response to questions put, he gave the following evidence:

“Q. And that the depression emerged in the context of a back injury. That’s what you told him [Dr Edema] wasn’t it?

A. I can’t remember that.

Q. That was the truth, wasn’t it?

A. No. Actually, there was a little bit of mood change when I had my back injury, but that was nothing. That was bearable.

Q. Nothing?

A. Compared to the Duncan thing, oh, it was nothing.” (Tcpt 135.04 – 135.13)

100. The plaintiff described how following the ECT treatment he struggled for some months. As he put it:

“For a few months after the ECT, you’d ask me about something that happened yesterday, and I couldn’t tell if that had happened or not, or if it was a dream, or – I struggled to tell what was reality for a little while” (Tcpt 136.33 – 136.35).

101. The plaintiff was asked about his ongoing back problems and restrictions which had affected his ability to do household chores and outdoor maintenance. It was put to the plaintiff he has regarded himself as unfit for work because of his back since November 2018 and had claimed workers compensation payments accordingly. However, the plaintiff believed that his entitlement to compensation for those problems would have expired in 2017. He agreed he had been assessed as having a 27% whole person impairment because of his back problems. The plaintiff was shown medical certificates and accepted that he has, until the present time, continued to present certificates to the workers compensation insurer certifying that his 2012 back injury prevents him from performing any work. The plaintiff said this was “technically” correct. As he explained:

“What prevents me from working is my psychological, and you will find that – that the date that Dr Tang changed the capacity of employment from, ‘has a capacity of some type of employment’, and it changed to, ‘has no current work capacity of employment’, would have been exactly the same date that he issued my first psychological certificate of capacity, so they don’t contradict each other” (Tcpt 142.08 – 142.13).

102. Amongst the medical certificates upon which the plaintiff was cross-examined was a certificate from Dr Tang certifying him unfit during December 2018 and January 2019 because of what is said to have been a psychiatric condition resulting from the plaintiff dealing with distressing and stressful scenes in the course of his work as a police officer.

103. It was put to the plaintiff that on his claim form to the workers compensation insurer he had disclosed his problems up to November 2016 as arising from distressing and stressful events in dealing with offenders and investigating crimes. The plaintiff disavowed that proposition and pointed out that the document, which never found its way into evidence, was not signed by him.

104. The parties took opposing positions in relation to what ought be made of the many, arguably inconsistent, medical certificates issued over the years. I will come to that evidence when I consider questions of causation and damages. It is of little, if any, assistance for present purposes in understanding the factual narrative.

Re-Examination of the Plaintiff

105. In re-examination, the plaintiff clarified the position in relation to his role as a councillor and his aspirations to become mayor.

106. In short, the plaintiff said his brother-in-law had been a long-time Liberal Party councillor on the Campbelltown Council and when he decided to retire, there was an agreement supported by the members of the Liberal Party branch in Campbelltown that the plaintiff would take his brother-in-law’s spot. Accordingly, as part of this succession plan, the plaintiff was put on the ticket in what he descried as a winnable position, so his brother-in-law could teach him. They would then both serve as councillors for a term and the plaintiff would replace his brother-in-law as number one on the ticket. From there, the plaintiff believed he could have become mayor.

107. The plaintiff described how his emotional problems changed those plans, and he could not remain on the Council. As a result, his brother-in-law could not retire as planned and had to stay on for one more election. His brother-in-law was in fact elected and was then made mayor for four years. According to the plaintiff, had it not been for his psychological problems, he would have replaced his brother-in-law and gone on to become mayor. The reasoning behind the plaintiff’s conclusions is that the path to being mayor was galvanised by the fact that the Council had a lot of independents who threw their support behind the plaintiff’s brother-in-law and would have, had it been the case, supported the plaintiff.

Evidence of Francine Ralph

108. The plaintiff called Francine Ralph, a Sergeant in the NSW Police Force who worked with him at the PSC. She was unable to fault the plaintiff’s work, describing him as professional and honest. In terms of his demeanour, she said:

“Just a really nice guy. Big, happy, gentle bloke. Just, you know, really helpful. Not a bad word to say about it to be honest. He’s a lovely bloke” (Tcpt 163.47).

109. Sergeant Ralph was also under the supervision of DI Duncan. She was asked whether she observed anything about the relationship between the plaintiff and DI Duncan and said that whilst there did not appear to be any issues at first, as time went on “there certainly were issues between the two of them” (Tcpt 164.25). She described this in the following terms:

“Well, it was mostly what – well, mostly what sort of – the feedback I was getting from Ralph in terms of issues he was having around Rob and management, he had obviously got a back injury at some stage. I don’t know whether he brought that in with him or whether he – I don’t know how that injury came about. But I do know that after a certain period of time whilst at PSC it was – it was quite – his back was quite poor. And I believe the deterioration in the relationship happened around that back injury and around his medical requirements and needs” (Tcpt 164.30 – 164.37).

110. Sergeant Ralph was generally aware that there had been an issue involving the plaintiff and another officer in relation to a traffic infringement notice issued for a police vehicle.

111. She was asked about her experience in relation to police officers attending appointments during working hours at PSC and said:

“In my experience at PSC there was flexibility in going to medical appointments and doctor’s appointments, but it was at the discretion of the Commander” (Tcpt 165.25 – 165.27).

112. Sergeant Ralph confirmed that she was the plaintiff’s support person at the meeting with Superintendent Lewis. As Sergeant Ralph recalled it, the plaintiff had attended the meeting wanting some clarity around what doctors’ appointments he could attend, if any. She said that at the meeting there was a list of all the doctors the plaintiff was seeing, including rehabilitation and physiotherapists, and her recollection was that the plaintiff was told the only appointments he could attend during work hours were with the police rehabilitation or to see a police doctor. Sergeant Ralph recalled that after the meeting the plaintiff had heightened anxiety and it was, in her view, apparent he was finding it more and more difficult and was becoming increasingly stressed. She said:

“He was, you know, teary and upset. He was, you know, just a lot of conversation around not being able to attend his appointments and how stressful that was going to be. What was he going to do, how was he going to get to them, the logistics of how he manages these appointments” (Tcpt 166.28 – 166.32).

113. Sergeant Ralph was clear in her view that the plaintiff had become quieter, more reserved and less communicative. She recalled that the plaintiff and DI Duncan became less able to communicate.

114. According to Sergeant Ralph, Sergeants might work on each other’s jobs if an officer is on leave or otherwise not available. Usually, Sergeants would report to the Inspector except if the Inspector was on leave and was being relieved by a Sergeant. She said that generally all Sergeants would have been allocated their own investigations.

115. Nonetheless, Sergeant Ralph accepted that the division of work was very much at the discretion of the Commander and Inspectors.

Liability

116. Against that background I turn to consider the question of liability.

The Duty of Care

117. For reasons to which I will come, I am satisfied that the plaintiff suffered a recognised psychiatric illness, namely the significant exacerbation of an existing depressive condition, caused by the conduct of DI Duncan. Given the complexities involved, those reasons are best explained when considering the interrelated questions of factual and medical causation which I must determine in the assessment of the plaintiff’s damages, irrespective of the outcome of the liability dispute.

118. The starting point in the inquiry as to liability is to articulate the duty of care resting upon the defendant.

119. As was earlier noted, it is common ground that the duty the defendant owed to the plaintiff was analogous to that owed by an employer. Although not presently relevant, there may be a departure from that duty having regard to the nature of the office and the responsibilities held by police officers (see State of New South Wales v Briggs at [44] – [61]).

120. At a level of generality, the duty of an employer has been said to be an obligation to take reasonable care to avoid unnecessary risk of injury. [2]

121. However, as was made clear by the High Court in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 at [33] – [35], an employer’s duty of care is owed to each employee, and in the present context the relevant duty is engaged if psychiatric injury to the particular employee is foreseeable, in the sense that it was not far-fetched or fanciful.

122. As the High Court pointed out in Kozarov v Victoria (2022) 273 CLR 115; [2022] HCA 12, it is a misconception of the ratio in Koehler when considering foreseeability to suggest that an employer has no responsibility to guard against psychiatric injury unless on notice that the employee is manifesting evident signs of the possibility of such injury.

123. At the end of the day, the scope and content of the employer’s duty will depend upon the prevailing facts and circumstances of the particular employment relationship. However, as the High Court points out, the obligation of an employer in the performance of its tortious duty to maintain a safe system of work is to exercise reasonable care to avoid a foreseeable risk of psychiatric injury to a class of employees. [3]

124. Justice Edelman made the following observations on the question of duty in Kozarov (at [103] – [104]) (citations omitted):

“[103] … the employer’s duty to ensure the ‘protection of mental integrity from the unreasonable infliction of serious harm’ is imposed by law and is not dependent upon any undertaking by the employer. In this sense, it is no different from the employer’s duty to protect an employee’s physical integrity from the unreasonable infliction of harm. It has long been recognised that psychiatric injury ‘is just as really damage to the sufferer as a broken limb … and equally ascertainable by the physician’. It was this imposed duty that Ms Kozarov’s case was based upon, with her plea that the respondent’s liability arose as a consequence of the ‘reasonably foreseeable risk of Ms Kozarov suffering psychiatric injury whilst undertaking her employment duties’.

[104] Because there is no negligence ‘in the air’, the imposed duty to take reasonable steps to avoid allocating work, or creating a workplace, that causes or exacerbates psychiatric injury to an employee will only be ‘engaged’ when there is a reasonably foreseeable risk of psychiatric injury to the employee of the general kind that occurred. Whether a risk of psychiatric injury is reasonably foreseeable will depend upon (i) ‘the nature and extent of the work being done by the particular employee’ and (ii) any ‘signs given by the employee concerned’.”

125. In the context of the potential for bullying to cause psychiatric injury, Spigelman CJ in Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377 at [23] observed:

“It may well be the case that it is now well established that workplace stress, and specifically bullying, can lead to recognised psychiatric injury.”

126. In my view, as the proliferation of legislative protections and workplace policies attest, it is now a matter of common acceptance, knowledge and experience that there is a risk of psychiatric injury occurring as a result of what has generally come to be described as bullying and harassment.

127. Nonetheless, as the defendant points out, “bullying and harassment” is a general description and not a term of art, making it necessary to consider the nature and quality of the conduct in question in order to determine the question of foreseeability.

128. The defendant contends that the decision made to require the plaintiff to attend medical appointments outside work hours was consistent with standard operating procedures in relation to injury management within the NSW Police Force. Similarly, it is contended the fact DI Duncan had a discretion as to when and how the plaintiff could attend medical appointments is a matter of which the plaintiff must be taken to have been aware when commencing at the PSC, having regard to his prior experiences of injury management over many years. The defendant argues that the conflict generated by the plaintiff believing he was entitled to attend doctors during work hours and being directed otherwise, was a product of reasonable and necessary management decisions and were far from bullying or harassment. This, it is said, is particularly so when one has regard to the fact the plaintiff was allowed to reduce his work hours while being paid workers compensation for time off work to give him the opportunity to attend medical appointments.

129. The defendant says the reassignment of the plaintiff’s workload whilst he was on restricted duties was, as Sergeant Ralph confirmed, unremarkable.

130. Likewise, the defendant contends the inability to use a work vehicle to attend medical appointments in the plaintiff’s own time could hardly be regarded as bullying and harassment. These were command decisions which the defendant says were not unreasonable in the circumstances.

131. Finally, the defendant argues that if DI Duncan was bullying and harassing the plaintiff as pleaded, Sergeant Ralph would have been expected to be able to give evidence regarding that behaviour, which she did not.

132. The defendant encapsulated its position in the proposition that the events complained of simply represent “the ebb and flow of normal work interaction surrounding a person’s work and the expectations of the Command of such a person in returning to work with rehabilitative assistance”.

133. The plaintiff, unsurprisingly, sees it quite differently, and points out that the allegations underpinning the claim are based upon a course of conduct by DI Duncan. It is said the restrictions on the plaintiff attending medical appointments or using police vehicles ought not be seen as stand-alone stressors, but are illustrative of a bigger picture of bullying perpetrated by DI Duncan.

134. There is considerable force in the plaintiff’s submissions on this point. The Statement of Claim articulates 14 particulars of the behaviour said to constitute bullying and harassment. It is, in my view, too simplistic to say that the plaintiff’s psychological problems were a product of him being unable to see doctors during work hours, or being prevented from using a police vehicle, or having his workload and work practices modified when on restricted duties. Alone, each may potentially be regarded as unremarkable. However, they may be seen very differently when considered as components of a course of conduct.

135. The plaintiff’s case is effectively that after the speeding incident his work environment changed dramatically and became quite toxic.

136. DI Duncan and Superintendent Lewis did not give evidence, and whilst the parties agreed that there would be no Jones v Dunkel inference drawn as a result, the fact remains that the plaintiff’s allegations as to the behaviour of DI Duncan are not contradicted.

137. As indicated earlier, I found the plaintiff to be a straightforward witness. He has an impressive work history and over the years demonstrated a commitment to return to work despite adversity. I found no reason to doubt his genuineness and I reject the propositions challenging his honesty. Nonetheless, for the reasons which will be developed in due course, I have come to the conclusion that the plaintiff is inaccurate in some respects in terms of timelines, and his evidence is unreliable in some instances as to the relative causal impact of the stressors occurring before and after the interactions with DI Duncan of which he complains. These shortcomings, I am satisfied, reflect the failings in memory which arise as a result of the passing of time, as well as the effects of the plaintiff’s emotional problems and a focus on the significance of the speeding incident and its aftermath, which has gained importance in his mind.

138. The point is well made in the plaintiff’s written submissions that the plaintiff’s evidence demonstrates a stark difference between DI Duncan’s treatment of the plaintiff before and after the speeding incident.

139. I accept the plaintiff’s description of what was a collegiate, pleasant and satisfying work environment prior to the speeding incident. I accept that the plaintiff worked closely with DI Duncan, as he described it, effectively as “partners” working each other’s cases and helping each other out.

140. Similarly, I accept the evidence of the plaintiff that before the speeding incident DI Duncan was friendly towards him and would, for a simple example, invite him into his office for a chat.

141. I do not doubt the plaintiff’s unchallenged evidence that there was a dramatic change in his work environment after the speeding incident. This saw DI Duncan continue to speak with other officers in a convivial way, talking socially in his office, whereas the plaintiff was excluded from those interactions. I am satisfied that, as the plaintiff described, DI Duncan would no longer acknowledge him when he said hello, or otherwise would give him angry looks, with communication being largely by email. The plaintiff’s description about feeling uncomfortable is, in my view, entirely understandable and I have no difficulty in accepting this could have taken an emotional toll on the “happy, gentle bloke” described by Sergeant Ralph, as would the threat that he would be removed from the PSC.

142. It was in this context that the plaintiff was no longer allowed to attend medical appointments during work hours, nor use a police vehicle for that purpose. They were far from stand-alone command decisions.

143. The evidence makes it clear that DI Duncan had a discretion, and if he chose to, he could have allowed the plaintiff to continue with the flexible rostering arrangements he had enjoyed prior to the speeding incident. I accept that unlike the plaintiff, DI Duncan allowed other officers to attend medical appointments during work hours after the speeding incident. I find that for those reasons, the plaintiff was singled out, discriminated against and treated differently to other officers.

144. I accept that the new regime introduced by DI Duncan directly impacted on the plaintiff’s ability to obtain treatment in the way he had before the restrictions were introduced and that this caused him stress and upset, exacerbated by the fact that he alone had been targeted with those restrictions by DI Duncan.

145. Similarly, I accept the plaintiff was stripped of his own cases and was required to report to those who did not have a superior rank to him. This came without any forewarning or explanation and is to be distinguished from changes in roles which might occur when officers are on leave or otherwise not available.

146. As the defendant points out, Sergeant Ralph said the plaintiff was upset by the decision that he had to attend doctors in his own time, but she did not give evidence of conduct on the part of DI Duncan that would amount to bullying or harassment, other than referring to things between he and the plaintiff being strained.

147. However, I consider the absence of details of bullying and harassment from Sergeant Ralph is not significant given there is no evidence that she was directly involved in the communications and interactions between the plaintiff and DI Duncan which underpin the plaintiff’s complaints. Importantly however, Sergeant Ralph does corroborate the plaintiff showing outward signs of being teary and stressed at the relevant time.

148. The conduct which I have accepted was perpetrated by DI Duncan, I am satisfied, reflects what can be termed bullying and harassment of the plaintiff.

149. Obviously, I have no way of knowing what was operating in the mind of DI Duncan, and given the agreement between the parties, I draw no inference from his failure to give evidence. However, the evidence establishes there was a change in DI Duncan’s behaviour after the speeding incident. Whether the two were connected, I can’t know for certain. However, from the plaintiff’s evidence there is a strong inference that the speeding incident had something to do with the fairly dramatic change in DI Duncan’s attitude towards the plaintiff.

150. The behaviour of DI Duncan on any reasonable view of the evidence was a deliberate course of conduct by him.

151. In my view, psychiatric injury to the plaintiff as a result of DI Duncan’s treatment of him was not far-fetched or fanciful but was a tangible potential consequence to be anticipated from the conduct in question.

152. As was pointed out by Spigelman CJ in Naidu at [25] – [28], beyond reasonable foreseeability, it is also necessary in formulating the duty of care to consider the probability that the risk of psychiatric injury may occur if the risk of injury is foreseeable.

153. For the reasons discussed, I consider the risk of injury was not insignificant in the circumstances of the case.

154. Accordingly, I find the defendant was under a duty of care to the plaintiff to take reasonable care to avoid the risk of psychiatric injury from bullying and harassment of the type perpetrated on him by DI Duncan.

155. The question then becomes one of breach.

Breach

156. The defendant argues that the plaintiff will not establish breach of duty unless he proves he communicated to his employer both the difficulties he was experiencing with DI Duncan and the impact those difficulties were having upon his health. This is said to be a proposition supported by the decision of the High Court in Koehler. I do not accept that proposition for the reasons since made clear in Kozarov, as discussed earlier. Ultimately, each case is fact sensitive and whilst in Koehler the employer had no notice, it is also significant that the Court was not satisfied that the potential for psychiatric injury was otherwise foreseeable. In the present case, for the reasons I have explained, the defendant ought have foreseen the potential for DI Duncan’s conduct to cause the plaintiff psychiatric injury.

157. At the level of breach, the defendant also argues there was no evidence it was on notice about the actual bullying, if that is how DI Duncan’s behaviour is characterised. It was put that it is not sufficient if matters are reported to fellow officers, and for the defendant to be on notice it must be “reported to a superior or someone higher up the chain”. In support of that submission the defendant relies upon what was said by Spigelman CJ in Naidu at [9] – [41].

158. I do not accept the proposition that the defendant was not on notice. DI Duncan was after all a relevant superior, unquestionably being responsible for the supervision and management of the officers under his command. Were bullying between officers under his supervision reported to DI Duncan, the defendant could not realistically argue it was not on notice of that conduct. The defendant, effectively being a corporation or inanimate legal person, only obtains its knowledge constructively through its managerial and supervisory personnel. On the facts of this case that included DI Duncan. Consistent with the reasoning in Naidu at [40] – [44], I consider the defendant was necessarily on notice of the bullying perpetrated by its managerial staff.

159. This leads to another layer of the defence raised, namely if proven to be conduct in breach of the defendant’s duty to the plaintiff, whether the defendant is vicariously liable for the actions of DI Duncan.

160. In that context, the defendant raised s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW) (Law Reform Act) and argues that if impugned, DI Duncan’s behaviour was not committed in the performance or purported performance by DI Duncan of a function of the NSW Police Force.

161. The plaintiff, however, argues that s 8 of the Law Refor**m Act is not available to the defendant as a defence because of a failure to plead it.

162. For present purposes, I consider s 8 of the Law Reform Act adds little, if anything, to the common law where it is well settled that vicarious liability attaches to conduct of an employee who performs an authorised act in an unauthorised way. [4]

163. The defendant’s core point here is that if DI Duncan is found to have bullied the plaintiff, gratuitous bullying is not, in any way, the business of the defendant and so when he bullied the plaintiff, DI Duncan was not performing a function on behalf of the police.

164. Such an approach is too narrow and fails to distinguish between the behaviour and the task being performed.

165. DI Duncan was charged with responsibility for supervising, directing and controlling the activities of the officers within his team. The bullying, which I have found, occurred in the course of that supervision. It was an inappropriate and unauthorised way of regulating and controlling the plaintiff’s work activities.

166. Whether it be pursuant to s 8 of the Law Reform Act or viewed in terms of the common law, in my view the defendant is vicariously liable for the conduct of DI Duncan.

167. Accordingly, for those reasons the plaintiff has established negligence on the part of the defendant.

Causation

168. As the earlier narrative suggests, questions of medical causation for the purposes of assessing damages arising from the defendant’s negligence are complex given the multi-factorial nature of the plaintiff’s problems.

169. As this claim stands outside the operation of the Civil Liability Act, one looks to common law concepts in determining causation. This engages principles discussed in Bonnington Castings Ltd v Wardlaw [1956] AC 613. [5] Essentially, to establish causation the plaintiff must show that the defendant’s negligence made a material contribution to the psychiatric injury he suffered.

170. As is apparent from the narrative of evidence outlined earlier in this judgment, the plaintiff suffers from a significant problem with his back, which has its roots in the work-related injury suffered in December 2012. Those back problems have led to surgery and on any view of it, continue to affect the plaintiff.

171. In terms of medical causation, the defendant’s short point is that any psychological conditions suffered by the plaintiff were not caused by his interactions with DI Duncan. Alternatively, it argues that those interactions caused no more than a temporary exacerbation of pre-existing psychiatric problems. Beyond that, the defendant contends that the plaintiff’s back problem in itself impairs the plaintiff’s earning capacity, as would the psychological problems associated with that back condition, independently of any psychological injury suffered by reason of the defendant’s negligence. The defendant argues that there is also an independent psychiatric condition in the form of post-traumatic stress disorder (PTSD) caused by the plaintiff’s general exposure to traumatic events in the course of his employment. These unrelated factors, says the defendant, must be brought to account in the assessment of any damages awarded to the plaintiff.

172. The plaintiff, again in short form, argues that the Court would be satisfied DI Duncan’s behaviour made a material contribution to the plaintiff’s psychiatric condition which is, if not the only, then the overwhelming cause of the plaintiff’s loss of earning capacity.

173. I have considered the detailed arguments put by the parties in support of their respective positions, however it is unnecessary for me to recite them at length. Rather, the reasons which follow demonstrate how I have resolved that contest.

174. It is clear from the records of the Complete Medical Centre that the plaintiff was seeing, predominantly, Dr Tang regularly for not insignificant problems with his back in the years which followed the 2012 injury, albeit with variability in his symptoms.

175. The plaintiff’s circumstances in early 2015 warrant close attention given the interactions which occurred with DI Duncan following the speeding incident in March 2015.

176. I am conscious of the care which must be exercised when drawing conclusions from clinical notes and other medical records. However, given the plaintiff’s general, though not absolute, acceptance of the reliability of the medical records upon which he was cross-examined, they seem to me to provide a useful source of information to understand and contextualise the various problems the plaintiff has suffered over the years.

177. The caution which I exercise in considering those records acknowledges observations in fact made by the plaintiff during the course of his evidence, that the records are not necessarily a direct quote of what he told doctors. I can readily accept that there may be instances where the notes do not record everything the plaintiff said or perhaps place a gloss on what the doctor was told.

178. The clinical notes of Dr Tang chronicle the plaintiff’s complaint of back problems in early 2015 and an increase in pain to the point of being unbearable. Dr Tang recorded, on 15 January 2015, that the plaintiff was having poor sleep and referenced the plaintiff becoming frustrated and depressed.

179. On 16 February 2015 Dr Tang recorded:

“Seen Jordan & thinks depression is a problem. Engaged physio & psychol & cortisone injection. Pt not keen with anti-D. Awaiting insurance approval for pain treatment. Scripts provided.”

180. That entry is consistent with a report of Dr Wood to the workers compensation insurer dated 9 February 2015.

181. On 7 March 2015 Dr Tang records that the plaintiff had undergone a cortisone injection by Dr Wood the day before, noting that Dr Wood believed the plaintiff was depressed as well.

182. I accept, as was put to the plaintiff in cross-examination, that in March 2015 he was having ongoing problems with his back and related emotional sequelae.

183. On 30 March 2015, the plaintiff saw Mr Kearney, psychologist, making various complaints about depressed mood, but on the face of it, made no mention of problems associated with his interactions with DI Duncan.

184. Notably, in May 2015 Dr Tang records that the plaintiff’s pain was stable, that he was managing work and was off Tramal [a strong pain killer] completely. The notes record:

“PT keen to try to go back to FD now that the situation seems to have stabilised. Counselled. Suggest case conf with RTW co-ordinator.”

185. Dr Tang next records on 1 June 2015 that the plaintiff had aggravated his back and left leg pain three days before.

186. As earlier noted, it was put to the plaintiff that the meeting with DI Duncan was either in, or very close to, June 2015.

187. That proposition gains considerable force when one has regard to the clinical entry of Dr Tang dated 13 June 2015:

“Seeing Police Rehab & physio & OT/psychol & gym etc. New commander wants him to attend those people at own hours. Cortisone inj starting to fade. Mood still up & down. More stress with work changes. Feeling isolated. Not communicating with family. Counselled.”

188. As mentioned earlier, the reference to “commander” was accepted by the plaintiff to be a reference to Superintendent Lewis.

189. It will be recalled that the plaintiff said he attended the meeting with Superintendent Lewis within a week of the meeting with DI Duncan.

190. When that is married with Dr Tang’s clinical notes, it seems to me highly probable that the meeting with DI Duncan occurred around early June 2015. This also sits comfortably with the proposition that there was a period after the speeding incident first became known when DI Duncan was attempting to have someone take responsibility for it. It is also entirely consistent with the plaintiff’s consultation with Mr Kearney on 11 June 2015 where the plaintiff is recorded by Mr Kearney as having reported “a recent onset of work conflict and stress”.

191. This timeline is important because it highlights the fact that in the period prior to June 2015, the plaintiff was having not insignificant emotional problems related to causes other than his interactions with DI Duncan.

192. Having said that, the report of Mr Kearney, to which I’ve just referred, also evidences the fact that the plaintiff’s “work conflict” had, to use the words of Mr Kearney, “impacted negatively on his mood”.

193. The plaintiff first saw his current treating psychiatrist, Dr Jacobs, on 24 June 2015. When giving evidence, the plaintiff believed he saw Dr Jacobs on the day of the meeting with DI Duncan but, as the chronology of events to which I’ve just referred makes clear, he was mistaken in that view.

194. According to the report which Dr Jacobs sent to Dr Wood on 9 November 2015, the plaintiff’s experience of lower back problems in the years leading up to the consultation had left him “very flat”. The plaintiff is said to have provided a history that he had become socially withdrawn and would sit in a bedroom away from his family and wondered “when it was all going to end”.

195. Notably, Dr Jacobs records:

“He said they have left him alone at work, although things had changed over the previous two months. One of his officers had overturned a decision to let him see doctors in his normal work hours and he was upset about that…”

196. Dr Jacobs records in the same report a consultation with the plaintiff three weeks later when he notes the plaintiff being “a bit flat”, noting -

“that his commander, a female, was very sympathetic. She was concerned about him, and he then took a month off. He said there were plenty of triggers at work that increased his anxiety. Occasionally he had flashbacks, about once a month. These were flashbacks of dead bodies, and he could smell these dead bodies. He said he had put up with it over the years….”

197. Before me, it was put to Dr Jacobs in cross-examination that the significant matter in terms of psychological problems, as evidenced by the history he recorded, was the plaintiff’s low back injury. Dr Jacobs’s position was that his report was not a verbatim account of events. Effectively, as I understood his evidence, Dr Jacobs had focussed more on pain because he was reporting back to a pain specialist. Dr Jacobs considered that the plaintiff’s back was a significant factor in his presentation.

198. Dr Jacobs resisted the proposition that his description of issues in the workplace and the decision to prevent the plaintiff from seeing doctors had been something he did not think was capable of causing psychological distress. The cross-examination suggested that describing his response as being “upset” fell short of being psychological distress. However, as Dr Jacobs put it, “saying he was upset is psychological distress”.

199. Dr Jacobs confirmed the plaintiff had described “plenty of triggers at work” that increased his anxiety, including flashbacks of dead bodies. Dr Jacobs accepted that the plaintiff’s description of those flashbacks were symptoms of PTSD which were in existence for a number of years before the plaintiff consulted with Dr Jacobs.

200. Dr Jacobs was asked about the causal contribution made to the plaintiff’s psychological problems by the difficulties he was experiencing as a result of his back injury. Dr Jacobs accepted that issues associated with the plaintiff’s back problems had caused the plaintiff to become depressed. As he put it, “that’s all part of it”. Dr Jacobs, as I understood his evidence, saw that depression and the plaintiff’s pre-existing PTSD as being compounded by the bullying which the plaintiff described to him.

201. In cross-examination Dr Jacobs was questioned as to his understanding of the bullying. He described it as not being allowed to obtain proper treatment. Dr Jacobs described how in his very first consultation with the plaintiff he had recorded “officer overturned decision to let him see doctors in work hours”. The doctor said the plaintiff had told him on many occasions, although he had not necessarily recorded them everywhere, that he had not felt supported at work. Dr Jacobs described the plaintiff telling him that a number of cases had been taken away from him without full explanation and that he felt he had been isolated.

202. My impression was that Dr Jacobs, as the treating psychiatrist, had noted various complaints during his consultations with the plaintiff, perhaps not as a compendious exposition of the plaintiff’s complaints at particular times, but more as notes to accommodate his working knowledge of the plaintiff’s problems. Nonetheless, from Dr Jacobs’s evidence I am satisfied that the plaintiff had complained to him of the behaviour of DI Duncan.

203. In his report to the plaintiff’s solicitors dated 16 September 2022, Dr Jacobs described the behaviour to which the plaintiff was subjected as “bullying, denigration and humiliation”, which I take to be a summary of his understanding of the behaviour described to him by the plaintiff.

204. It was clear from Dr Jacobs’s evidence, as reflected in his report to the plaintiff’s solicitors, that he saw the bullying behaviour as causing what he described as a severe exacerbation of the plaintiff’s pre-existing psychological problems.

205. Dr Jacobs accepted that the PTSD suffered by the plaintiff is in itself incapacitating, however as the doctor pointed out, the plaintiff’s incapacity for employment is not straight forward and is a combination of PTSD, the effects of his back pain, and the bullying of which the plaintiff complains.

206. Dr Jacobs did not accept that what he described as the triggering effects of the bullying, were short-lived. When superimposed on the PTSD, the effects of the bullying, in Dr Jacobs’s opinion, never went away.

207. In testing that proposition, the doctor was cross-examined about a history to Dr Edema, who saw the plaintiff as a precursor to the ECT treatment, which included reference to PTSD associated with deaths witnessed in the workplace and worsening of his psychological problems following his back injury, but with no reference to bullying.

208. Whilst interpreting histories said to have been given to someone else is potentially fraught, Dr Jacobs did not accept that the absence of a history of bullying to Dr Edema undermined the causal significance of those events, citing the variability in accounts given by patients, particularly in the case of cumulative events.

209. Ultimately, as he confirmed in his evidence before me, Dr Jacobs is of the view that the plaintiff suffers PTSD and a major depression. The major depression, in a causative sense, he saw as resulting from chronic back pain and the bullying he suffered in the workplace.

210. Other than Dr Jacobs, the predominant evidence addressing the question of causation from a medical perspective is the report of Dr Teoh to the plaintiff’s solicitors dated 15 September 2020. Dr Teoh obtained a history of chronic back pain, multiple traumatic events experienced during the plaintiff’s time as a police officer and bullying in the workplace which was described as not being allowed by his supervisor to see a doctor. Dr Teoh’s opinion as to causation sits comfortably with that of Dr Jacobs, namely a diagnosis of chronic PTSD and a Major Depressive Disorder causally related to the history of events recounted by the plaintiff.

211. The defendant argues that the opinion of Dr Jacobs, so far as it implicates the bullying conduct of DI Duncan, is unreliable because the doctor “has not grappled with the true import of events that took place at work” and the history he obtained did not enable him to understand the prevailing circumstances.

212. I do not accept that submission. It seems to me, for the reasons outlined, that Dr Jacobs did obtain a history of relevant events sufficient for him to understand the nature of the stressors imposed upon the plaintiff by the conduct of DI Duncan. To that extent, his opinion, in my view, is based on a firm foundation of factual assumptions.

213. Otherwise, the defendant argues that the bullying and harassment case advanced by the plaintiff has not been made out, so the Major Depressive Disorder found by Dr Jacobs can only relate to the effects of the plaintiff’s chronic back pain.

214. On the findings I have made, I reject that submission.

215. Finally, the defendant argues that any exacerbation caused by the conduct of DI Duncan was temporary in nature and should be regarded as short lived. I do not accept that proposition, particularly because:

216. The plaintiff was working seemingly productively, albeit navigating the effects of his back pain, in the lead up to the speeding incident.

217. Sergeant Ralph attested to a change in the plaintiff’s demeanour and observing him to be teary and upset in relation to changes in arrangements to accommodate his medical treatment. She also recalled there appeared to be a change in the communications between the plaintiff and DI Duncan.

218. It was in this context that the meeting with Superintendent Lewis saw the plaintiff go off work in what I accept was a response to his emotional condition at that time.

219. It was around this time that the plaintiff first saw Dr Jacobs and provided a history of the various factors affecting his emotional health, including the bullying and harassment.

220. The escalation in the plaintiff’s emotional problems is contemporaneous and consistent with the effects of DI Duncan’s conduct in the aftermath of the speeding incident.

221. For the reasons I have outlined and those to which I will come, I consider Dr Jacobs’s evidence establishes that the continuation and deterioration of those emotional problems after the plaintiff left the PSC and during his time at ACIC was materially contributed to by continued heightened emotional symptoms resulting from the exacerbation of the plaintiff’s depressive condition caused by the conduct of DI Duncan.

222. Whilst the plaintiff continued to work at ACIC for some time, I accept that the deterioration which ultimately led to the ECT treatment and ongoing incapacity was inextricably linked to the bullying and harassment he suffered.

223. The defendant argues that the opinion of Dr Teoh does not establish causation because it does not differentiate between the stressors to which the plaintiff was exposed. Otherwise, it is contended that to the extent Dr Teoh assumed the bullying was causative, it was based on a history not established by the plaintiff’s evidence.

224. Dr Teoh does not articulate proportionate contribution of the different stressors. However, it is clear in my view, he considered the bullying and harassment to be a relevant factor, and his report is not inconsistent with the opinions expressed by Dr Jacobs.

225. In its submissions the defendant places emphasis on the psychological assessment conducted at the time when the plaintiff joined ACIC and the fact that there was no disclosure of any difficulties experienced as a result of the plaintiff’s interaction with DI Duncan, nor did the plaintiff disclose any psychological problems which would prevent him from performing work with ACIC.

226. I accept that the plaintiff when applying for a position would be reluctant to volunteer psychological restriction for fear of jeopardising his application, particularly in circumstances where he was looking to obtain work in a new environment and didn’t feel his problems would prevent him from doing that work.

227. It is to be observed, as was pointed out on behalf of the plaintiff, that in his health assessment the plaintiff did in fact disclose a medical history of anxiety and depression. However, as noted earlier, that did not include disclosure of his interactions with DI Duncan. Again, that might be explained by a reluctance to disclose the circumstances of those psychological problems.

228. At the end of the day, I do not draw any adverse conclusions from the plaintiff not disclosing psychological problems associated with bullying and harassment by DI Duncan in the assessments conducted when he joined ACIC. As I’ve outlined, it is clear enough that the plaintiff was giving a history of those matters to his treating psychiatrist prior to joining ACIC and on the evidence of Dr Jacobs, it continued to be a source of focus for him.

229. Nonetheless, I consider the psychological summary which forms part of the ACIC assessment tends to the conclusion that the plaintiff was experiencing and acknowledging ongoing psychological problems as a result of his back injury at that time, albeit indicating that he was considering discontinuing the anti-depressant medication he had been prescribed.

230. The plaintiff’s back problems continued to feature, as can be seen from the report of Dr Jacobs dated 13 August 2018 which focusses on complaints associated with a deterioration in the condition of the plaintiff’s back. Notably, the report of Dr Edema dated 9 November 2018, as discussed earlier, also refers to psychological problems as a result of the plaintiff’s back as well as prior exposure to trauma in the course of employment.

231. These are weighty matters and, on the face of it, provide support for the proposition that the bullying and harassment did not have a role to play in the circumstances leading to the cessation of the plaintiff’s employment with ACIC, his hospitalisation, and the subsequent ECT treatment.

232. However, I consider Dr Jacobs was persuasive in his evidence that patients, when in extreme distress like the plaintiff was, may leave out many aspects of history.

233. In my view there can be no doubt that the plaintiff had an increase in his back pain proximate to the time he finished at ACIC. However, with reports recording histories in relatively short form and a patient clearly in distress, it seems to me the omission of the history of bullying and harassment in some of the records must be treated with caution when drawing conclusions as to causation. This is particularly so in circumstances where a consistent history had been provided in other records and there is evidence from the treating psychiatrist, Dr Jacobs, that the effects of the bullying and harassment were intrinsically embedded in the plaintiff’s psychiatric problems.

234. I accept that the plaintiff’s pre-existing PTSD and the ongoing effects of his troublesome back have played a significant role in the psychological problems from which he suffers. That said, the bullying and harassment by DI Duncan and the ongoing exacerbation of the plaintiff’s other psychological problems which that caused has unquestionably, in my view, made a material contribution to the complex psychiatric injury which has seen him incapacitated for employment.

235. Balancing all the evidence, I make the following findings:

236. The plaintiff suffers from significant physical problems associated with injury to his lower back.

237. The plaintiff suffers PTSD as a result of his experiences in the police force.

238. The plaintiff suffers depression as a result of the emotional sequelae of his back injury.

239. The bullying and harassment of the plaintiff by DI Duncan caused a significant exacerbation of the plaintiff’s PTSD and depressive condition and has made a material contribution to the plaintiff’s ongoing Major Depressive Disorder and resultant incapacity.

Damages

General Considerations

229. Accordingly, I proceed to assess damages in respect of the plaintiff’s Major Depressive Disorder, caused by the bullying and harassment by DI Duncan, in the context of other physical and psychiatric factors impacting on the plaintiff’s capacity.

230. The defendant accepts that all the medical evidence indicates the plaintiff is totally unfit for all forms of employment. However, it is argued that those opinions are coloured by the plaintiff’s so-called exaggeration.

231. The exaggeration that was put to the plaintiff in cross-examination has been discussed earlier in the judgment. I did not form the view that the plaintiff was attempting to overstate his problems in evidence before me. There is no medical evidence that he is ingenuine. I accept that being able to talk to his children for only five minutes sounds implausible in the context of the plaintiff being able to give evidence in Court over a number of days. I expect the plaintiff probably does talk to his children and wife for longer periods. However, in circumstances where all agree the plaintiff is profoundly affected by psychological problems, I see such an overstatement to reflect perception and generality rather than an attempt to mislead.

232. Relying on principles discussed in DNM Mining Pty Ltd v Barwick [2004] NSWCA 137, the defendant argues the plaintiff would, in any event, be totally incapacitated because of his comorbid physical and psychological problems, such that he suffers no economic loss as a result of the defendant’s negligence.

233. The plaintiff points out that, until the cessation of his employment with ACIC, he was performing the physical demands of the job. He argues that consistent with the path of his back problems which had caused variable symptoms over many years, his back would not have stopped him from continuing to work. In the plaintiff’s submission, it is his psychiatric condition which incapacitates him and specifically the restrictions caused by the bullying and harassment by DI Duncan.

234. The plaintiff argues there is an onus on the defendant to disentangle competing causes to make good its submission that other conditions are responsible for the plaintiff’s incapacity.

235. As noted earlier in this judgment, there are a large number of competing medical certificates relied upon by each of the parties. Those certificates, says the defendant, establish that since the plaintiff left work at ACIC up until the present time he has been certified as totally incapacitated as a result of his back injury. The defendant also focusses on the fact that certificates issued by Dr Tang attribute the plaintiff’s psychiatric incapacity to PTSD, which is not the condition associated with the alleged bullying and harassment.

236. The plaintiff on the other hand, argues the certificates are confusing, for example, referring to a significant period of total incapacity because of the plaintiff’s back injury but nonetheless, at the same time, certifying the plaintiff fit for office work.

237. Although the plaintiff is being paid weekly benefits of workers compensation by reason of his back injury, he argues that the defendant’s workers compensation insurer cannot determine causation by the way in which it purports to pay those benefits.

238. Ultimately, I find the medical certificates of little assistance in determining the complex substantive issues as to the roles played by the competing physical and psychiatric conditions in the plaintiff’s incapacity.

239. The plaintiff’s evidence on the point is that, at the time of his ECT treatment in late 2018, leaving aside his psychological problems, his back injury would not have stopped him working at ACIC, nor would it have stopped him performing the duties required at the PSC, or prevented him from working as a councillor or mayor.

240. I observe that the evidence of Dr Habib in a report dated 19 December 2018 to the plaintiff’s solicitors, concludes that the plaintiff, by reason of his lower back problems, was at that time unfit for his pre-injury employment and this was considered permanent. He was also considered permanently unfit for any physically demanding manual jobs. This must be balanced against the plaintiff’s evidence that he would have continued to perform the work he had done as an officer at ACIC and the PSC, and the certificates issued in November 2018 by Dr Tang, which whilst somewhat confusing, on the face of it, contemplate that the plaintiff had the capacity for office duties. In any event, Dr Habib leaves open physical capacity for employment that is not physically demanding.

241. As I’ve said, I accept the plaintiff’s psychiatric problems render him totally incapacitated for employment. I accept he has significant problems in his lower back which also impact on his capacity. It was put to the plaintiff that he had capacity to do some computer work. The plaintiff’s evidence was that his psychiatric problems would effectively prevent him from doing that and, for example, intervened to preclude his attempts to do some volunteer work in the soup kitchen of his church.

242. Whilst they are no doubt significant and incapacitating, I am not satisfied that the plaintiff’s back problems are such as to render him totally incapacitated for all work so as to neutralise the incapacitating effects of his psychiatric problems in the sense contemplated by the defendant’s submissions and the principles discussed in DNM Mining.

243. Similarly, I am not satisfied that the pre-existing psychological problems, namely PTSD and depression, would of themselves have led to the plaintiff’s current level of incapacity in the absence of the effects of exacerbation caused by the bullying and harassment by DI Duncan.

244. Whilst I accept as sound the proposition put by the defendant that a person cannot lose a capacity for employment the person does not otherwise have, I am satisfied on the evidence that although clearly compromised, were it not for the tortiously caused psychiatric injury the plaintiff suffers, he would otherwise retain some capacity for employment.

245. There is force in the proposition that in 2018 it was the plaintiff’s psychiatric problems leading to the ECT treatment which saw him go off work.

246. The plaintiff has, since ceasing work in 2018, been in receipt of weekly payments of compensation in relation to his back problems. At the time of the trial, he was receiving compensation at the rate of $968 net per week. I cannot know what the future will hold for him in terms of ongoing entitlement to workers compensation for those problems, however, clearly the plaintiff’s damages must, so far as possible, avoid double compensation.

247. It is common ground that to avoid double compensation, weekly payments received by the plaintiff in relation to his back injury should be deducted from damages assessed for past economic loss. This is because those payments relate to a different injury than that for which he will recover damages, and thus the plaintiff will have no obligation to repay that compensation.

248. As with the past, the assessment of future economic loss is clearly not straight forward. The defendant argues that there is no reliable prospect for change in the plaintiff’s back problems or his pre-existing PTSD. Accordingly, the defendant says it ought be assumed the plaintiff’s current weekly payments of compensation will continue for the entire period of the claim.

249. The plaintiff argues there is no evidence as to the value of future compensation rights, and one does not know if they will continue, with the workers compensation insurer potentially influenced by the outcome of this litigation. I do not understand the plaintiff to dispute there is nonetheless a theoretical potential for ongoing weekly payments in respect of the back injury.

250. In the course of submissions, reference was made to the decisions in Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 and Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60. Neither case is on all fours with the facts of the present case, but both recognise the need for adjustment of an award of damages to take account of entitlements to compensation for incapacity from a different injury.

251. In considering other contingencies going forward, it seems to me in light of his pre-existing back and psychiatric problems, there must be a serious question as to whether the plaintiff would have worked to normal retiring age, irrespective of the psychiatric injury which grounds his claim for damages.

252. I accept that the defendant bears the burden of disentanglement in the sense discussed in Watts v Rake (1960) 108 CLR 158; [1960] HCA 58 and Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34.

253. However, as Ipp JA pointed out in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, that process does not require the defendant to establish with empirical precision what the plaintiff’s circumstances would have been but for injury. As his Honour said at [104] – [105]:

“104 What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec [Malec v JC Hutton Pty Ltd (1990) 169 CLR 638] has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the ‘disentangling’ evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.

105 Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.”

254. At the end of the day, as the authorities make abundantly clear, the assessment of damages in a case such as the present, with the various contingencies that must be factored in, will inevitably be an exercise of imprecision. [6] Nonetheless, to the extent I am able I should calculate the loss rather than apply a buffer.

255. In approaching the assessment of economic loss, it is appropriate on all the evidence to proceed on the basis that the plaintiff has been totally incapacitated since 2018 and will remain so for the balance of his statistical working life. I am of the view that the appropriate way to assess the plaintiff’s entitlement to damages is to apply a percentage discount to take into account those unrelated physical and mental factors which impact on the plaintiff’s capacity, the tangible potential that the plaintiff may not have otherwise worked to retiring age, and the fact that the plaintiff retains rights to weekly payments of workers compensation of indeterminate duration in relation to his ongoing back problems.

256. In applying a discount, I consider it appropriate in the circumstances to deal with past and future loss differently. As the period from the date of injury to the present time is significantly shorter than the period of future loss, the percentage discount for past ought be less than the future. This is because, given the shorter timeframe, there was necessarily less potential for the unrelated problems to come against the plaintiff in the past as opposed to the future. Additionally, weekly payments of compensation received in respect of the plaintiff’s back injury will be deducted when assessing past economic loss, whereas they are a matter of speculation to be included in the discount for future loss. Similarly, the potential for early retirement because of pre-existing conditions is a discount factor more relevant to the future rather than the past.

257. For those reasons, in all the circumstances I propose to apply a discount of 25% for past loss and 65% for future loss in the assessment which follows.

Assessment of Past Economic Loss

258. The parties have been unable to reach agreement as to the plaintiff’s earnings as a police officer but for injury. I have been provided with supplementary submissions in support of the respective positions. There appears to be two points of contention. The first relates to the appropriate rate of pay for the plaintiff at the time of his incapacity commencing in November 2018, and specifically whether it ought be the rate applicable to a Level 6 Detective Sergeant, as contended by the plaintiff, or a Level 4 Detective Sergeant as contended by the defendant. At the heart of that dispute is the fact that when the plaintiff went to ACIC his progression through the different levels of seniority for a Detective Sergeant within the NSW Police Force stopped. The plaintiff argues that but for the bullying and harassment by DI Duncan he would not have gone to ACIC and therefore he would have progressed to Level 6 by 2018. The defendant argues that one simply looks at the plaintiff’s earnings level at the date of incapacity, which was Level 4. The issue appears to evaporate after 2021 when, on their respective schedules, both parties accept the plaintiff would have been on Level 6, which as best I can ascertain, appears to be the highest pay Level for a Detective Sergeant.

259. The second issue concerns the plaintiff’s progression to the rank of Inspector. The plaintiff argues that from January 2022 he would have been an Inspector and paid accordingly, whereas the defendant contends that the appropriate measure is the plaintiff’s rank at the date of incapacity.

260. Returning to the first issue, namely whether one should assess the plaintiff at the level he was at in 2018 or the level he would have been had he not gone to ACIC. As it turns out, the argument is a somewhat sterile one. In their respective schedules and submissions the parties applied different rates. However, as I understand it, the defendant’s rates set out in the Defendant’s Supplementary Submissions on Earnings are in fact, for most years, higher than those in the Plaintiff’s Submissions on Economic Loss. Accordingly, the loss for a Detective Sergeant until the end of 2021 is actually slightly greater on the defendant’s schedule than the plaintiff’s.

261. Otherwise, in terms of the second issue, there is no evidence to satisfy me that the plaintiff would have progressed to the rank of Inspector. I have no evidence as to the requirements of promotion and the probabilities of the plaintiff being promoted.

262. In the circumstances, I propose to apply the defendant’s submission as to pay rates for the period up to 30 June 2024, which are premised on Award rates. These have since been supplemented by some agreed “comparable earnings” Award rates for the rank of Detective Sergeant for the period since 1 July 2024. I have done the best I can to assimilate the latest information provided to me and have applied the Award rates within that material I understand to be applicable to the relevant pay level for a Detective Sergeant. Against that background, I assess past loss of earnings as a police officer at $684,591 in accordance with the schedule set out below.

| Period | Rates (net per week) | Loss (net per week) | | 6 November 2018 – 31 December 2018 | 8 weeks x $1,662 | $13,296 | | 1 January 2019 – 31 December 2019 | 52 weeks x $1,748 | $90,896 | | 1 January 2020 – 31 December 2020 | 52 weeks x $1,891 | $98,332 | | 1 January 2021 – 31 December 2021 | 52 weeks x $1,940 | $100,880 | | 1 January 2022 – 31 December 2022 | 52 weeks x $1,973 | $102,596 | | 1 January 2023 – 31 December 2023 | 52 weeks x $2,008 | $104,416 | | 1 January 2024 – 30 June 2024 | 26 weeks x $2,043 | $53,118 | | 1 July 2024 – 30 June 2025 | 52 weeks x $2,116 | $110,032 | | 1 July 2025 – 6 August 2025 | 5 weeks x $2,205 | $11,025 | | Total | | $68****4,591 |

263. The plaintiff also claims loss of income as a councillor progressing to the position of mayor, which on a weekly basis would, for the most part, take his earnings above the statutory maximum for calculating loss allowed under s 151I of the Workers Compensation Act. The evidence in support of this aspect of the claim discloses that the plaintiff was elected in 2015 for a four-year term. The plaintiff says he did not see out that term because of his psychiatric problems.

264. The plaintiff advances a substantial claim for loss of allowances as a councillor. However, it is acknowledged that a credit of around $29,000 needs to be allowed when assessing that loss to reflect the fact that allowances were paid to the plaintiff during the period of the claim he makes. Factoring in that credit, on the figures advanced by the plaintiff, the claim for loss of earnings as a councillor probably starts from sometime in 2020.

265. I consider the claim for the plaintiff’s loss of earnings as a councillor to be embedded with a significant amount of speculation beyond 2019, when his term of office would have otherwise expired. The plaintiff being re-elected depended on a succession plan coming to pass and beyond that, depended on him being endorsed and elected as the mayor. Other than the plaintiff’s optimism, I have little to go on.

266. On the figures before me, in rough terms, the plaintiff’s earnings as a police officer generally sat around $350 - $400 below the statutory cap prescribed under s 151I of the Workers Compensation Act. It is that gap which realistically fixes the limit of the weekly amount recoverable for lost earnings as a councillor/mayor. Notwithstanding the speculation involved, I accept there has been a loss of opportunity to pursue elected office. In the circumstances, having regard to the prevailing statutory limits and the period of the claim, I propose to allow $15,000 as a buffer for that loss of opportunity.

267. Accordingly, I would assess the mathematical past economic loss reflecting lost earnings as a police officer ($684,591) and loss of opportunity to be a councillor/mayor ($15,000) to total $699,591.

268. The plaintiff also claims loss of superannuation benefits in respect of his lost earnings as a police officer, but not in respect of lost earnings as a councillor/mayor. The defendant argues that the plaintiff is not entitled to loss of superannuation benefits beyond the cap applied under s 151I of the Workers Compensation Act. In light of the plaintiff’s salary, that effectively means, on the defendant’s argument, he has little entitlement to loss of superannuation benefits.

269. The statutory cap in s 151I is relevantly worded as follows:

“In awarding damages, the court is to disregard the amount (if any) by which the injured or deceased worker’s net weekly earnings would (but for the injury or death) have exceeded the amount that is the maximum amount of weekly payments of compensation under section 34...”

270. The defendant’s argument is that “net weekly earnings” includes superannuation payments. In support of that proposition, the defendant relies upon the decision of Hall J in Campton v Centennial Newstan Pty Ltd [2015] NSWSC 410 at [4] – [7].

271. The plaintiff argues that employer’s contributions under the Superannuation Guarantee (Administration) Act 1992 (Cth) are not contemplated by s 151I of the Workers Compensation Act as being net weekly earnings. The plaintiff says that the decision in Campton is of no utility because in that case the plaintiff conceded that superannuation was caught by the cap and so the matter was not the subject of any judicial determination.

272. I agree that the ratio in Campton does not involve any consideration of the application of the section. The fact that superannuation was considered part of net weekly earnings for the purpose of s 151I was a result of a concession rather than a determination of that issue. The defendant also invokes the decision of Harrison AsJ in Duffin v Mount Arthur Coal Pty Ltd [2020] NSWSC 229 [304] – [306] where her Honour referred to Campton in adopting the same approach. However again, the issue does not appear to have been controversial, and her Honour did not engage in any consideration of the correctness of the agreement which informed the approach taken in Campton*.*

273. The parties did not provide any other authorities on the point.

274. In my view, it is a tenuous proposition to suggest the plaintiff’s net weekly earnings included superannuation, particularly in a case such as the present where the plaintiff was a government employee who was separately paid superannuation benefits. The plaintiff’s net weekly earnings were no doubt received after the application of the applicable tax rates to his gross salary. It is well known that superannuation payments do not form part of actual weekly remuneration and are paid on a gross basis. Superannuation payments are paid into a superannuation fund and are not available to a worker such as the plaintiff until sometime later when the worker qualifies for release of the funds. In my view, net weekly payments do not contemplate superannuation payments in a case such as the present. For that reason, I do not consider the cap under s 151I applies to the plaintiff’s entitlements to lost superannuation benefits.

275. If I am wrong in that conclusion, I note that in Keogh v CPB Contractors Pty Ltd & Ors (No 2) [2024] NSWDDT 9, his Honour Judge Russell SC was also confronted with an argument in relation to the application of the cap in s 151I to loss of superannuation benefits. In dealing with the dispute his Honour referred to the decision in Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1284. In that case, Harrison J did not engage with the submission presently under consideration but concluded that loss of superannuation benefits is not subject to any limitation, having regard to the operation of s 149(1) of the Workers Compensation Act which, inter alia, in sub-s (g) excluded “any sum payable under a superannuation scheme” from the definition of damages. Harrison J said at [11]:

“… In my opinion the definition of damages in that section clearly excluded superannuation from the operation of the modified common law damages regime in Division 3. The availability of superannuation as an unmodified head of common law damages remained.”

276. The reasoning of Harrison J was applied by Garling J in McGoldrick v Dendrobium Coal Pty Ltd [2022] NSWSC 1341 at [156]. As Judge Russell noted in Keogh, it is arguable whether payments out under a superannuation scheme, as described in s 149(1)(g) of the Workers Compensation Act, is in fact synonymous with payments into a superannuation fund by an employer. There may well be other aspects of that part of the decision in Glover which are open to debate.

277. Nonetheless, as a matter of judicial comity, like Judge Russell, I would follow the decision in Glover, which provides further support for the plaintiff’s entitlement to recover damages for loss of superannuation benefits.

278. Accordingly, I assess total past economic loss, before any discount, at $466,741 [7] calculated as follows:

| Past Loss of Earnings as a Police Officer | $684,591 | | Past Loss of Superannuation Benefits at 11.5% [8] | $78,728 | | Buffer for Loss of Earnings as a Councillor/Mayor | $15,000 | | Subtotal | $778,319 | | Less net weekly payments of workers compensation to date in relation to the plaintiff’s back injury, agreed at | $311,578 | | Total | $466,741 |

279. For the reasons explained earlier, I apply a 25% reduction to that loss for contingencies and vicissitudes and award **$**350,056 for past economic loss.

Assessment of Future Economic Loss

280. The plaintiff was born in August 1979. Assuming a retirement age of 67 but for injury, which I do, in conformity with s 151IA of the Workers Compensation Act, the plaintiff has a theoretical employment work life of 21 years. The plaintiff’s current net earnings but for injury are, as detailed earlier, $2,205.

281. Having regard to the plaintiff’s total incapacity and his prognosis, it is appropriate in assessing his total future loss of earning capacity to do so on the basis of total incapacity. Applying a 5% multiplier for 21 years of 685.6, that amounts to $1,511,748. As discussed earlier, the various contingencies and vicissitudes which apply in this case lead me to consider a 65% reduction to be appropriate. This results in a loss of $529,112. Accordingly, I assess the plaintiff’s future loss of earnings by reason of the injury the subject of the defendant’s negligence at $529,112.

282. For the reasons outlined earlier, the plaintiff is entitled to loss of superannuation benefits on that sum which I allow at the agreed rate of 14%, being $74,076.

283. Accordingly, total future economic loss, including loss of superannuation benefits, amounts to **$**603,188.

Summary

284. For the above reasons, I calculate the plaintiff’s total damages as follows:

| Past Economic Loss including Loss of Superannuation Benefits | $350,056 | | Future Economic Loss including loss of Superannuation Benefits | $603,188 | | Total Damages: | **$**953,244 |

Costs and Interest

285. As requested, I will reserve the question of costs and any claim for interest to afford the parties the opportunity to consider their positions in light of the judgment.

Orders

286. I make the following orders:

287. Judgment in favour of the plaintiff in the sum of $953,244.

288. I reserve the questions of costs and interest if claimed.

289. If orders for costs and/or interest are agreed, the parties are to provide my Associate with proposed Short Minutes of Order within seven days. To the extent there is an absence of agreement, I direct the parties to confer and approach my Associate within seven days for the purpose of re-listing the matter for argument, with an agreed timetable for the service of evidence if considered necessary.

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Endnotes

The “recon program” referred to by the plaintiff was a multi-discipline rehabilitation program involving physiotherapy and some gym work, aimed at returning police officers to work

See eg Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20 at [10]; Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14 at [12].

Kozarov at [28].

See State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4.

As expounded in, for example, Allianz Australia Ltd v Sim [2012] NSWCA 68.

See, for example, observations of Kirby P in Government Insurance Office (NSW) v Rosniak (1992) 27 NSWLR 665 at 676.

In assessing damages generally, all figures are rounded to the nearest dollar.

The plaintiff asserts a rate of 12% and the defendant contends it ought be 11%. In the absence of definitive evidence, I have allowed the mid-point.