Harding v SAS Trustee Corporation

The factual background 9The following narration is based on evidence given in the proceedings by the appellant and documentary evidence tendered by both parties, including a number of medical reports. Many of the factual matters were not in issue and I shall be able to deal with them in summary form. 10The appellant has had a distinguished career as a serving police officer, albeit that the termination of his service with the Police Force came about in most unfortunate circumstances. In 1966, he became, for a short period, a member of the then newly formed Armed Hold Up Squad. He then became a detective and in 1969 joined the Special Weapons and Operation Squad (SWOS) in which he remained until 1988. He said, during my time with the SWOS I was involved in numerous incidents involving forced entry into premises, sieges, as well as the arrest of armed offenders in motor vehicle pursuits. He then spent a period back in the Armed Hold Up Squad. In 1985, he was appointed a supervisor within the Regional Crime Squad and had gained promotion within SWOS. He said, I was the primary contract point for the South Region for all issues connected to sieges or high risk situations. For a period approaching approximately 20 years, I was on a 24-hour a day, 7 day a week call-out. In 1985, he was involved in two separate incidents in which he had been forced to shoot offenders. 11Although the appellant has, during his operational career, been involved in many significant and highly stressful incidents, there are a number to which reference needs to be made. 12In April 1979, he was involved in an attempted hijack of a Pan American 747 jet at the International Airport, Mascot. Initially, a hostage had been taken at knifepoint but she had managed to escape. The appellant was forced to deal with an offender who was seated in the aircraft threatening to blow it up with what he alleged were bombs. After some hours of fruitless negotiations, a plan was instigated by the police to resolve the situation. The appellant was forced to shoot the offender. The first shot hit him in the chest and the second in the forehead. The appellant said, I still have a clear recall of this incident and when the projectile struck the offender in the forehead, blood cascaded out of this head like water from a hose. He slumped back into his seat and fixed his eyes on me as I was standing closest to him. The image of his eyes being fixed on me as his life expired is still stark. 13After this incident, the appellant, together with others, was awarded the Commissioner's Commendation For Outstanding Courage. 14On 31 March 1985, the appellant was involved in foiling a robbery. The offender was armed. After a confrontation, the appellant shot the offender in the chest. The appellant said that the offender lived for a short time and during this period I was again placed in a position where a dying man was looking directly at me as his life expired. The appellant said that the deaths of these persons "are memories that I carry to this day. There is not a day that goes by that I do not think of both incidents." 15On 19 December 1985, whilst attempting to foil a hold-up at a hotel, the appellant shot an offender twice. The offender had appeared to be armed. After the incident, the appellant discovered that the pistol that he thought that the offender was carrying was, in fact, a replica. 16The appellant said, Immediately after the incident I felt depressed and anxious about what had taken place. I was concerned that what I had done would not be considered favourably by my superiors and constantly sought reassurance from other people that my actions were justified. I went through a period in which I was unable to sleep after this incident, although this problem gradually subsided over time. I still have vivid memories of this and other incidents, particularly when I see television programs depicting firearms and the like. 17I should stress that there were a number of other violent incidents in which the appellant was intimately involved. I have set out the details of these three incidents because these, on the evidence, continued to be on the appellant's mind and he emphasised their continuing impact upon him whilst being examined by his medical practitioners and by others retained independently for the purpose of providing expert evidence. 18There are medical reports dealing with the appellant's circumstances and which are relevant to these proceedings dating back to 1985. I shall discuss all of the medical evidence later in these reasons for judgment. 19Following the incident in 1985, the appellant asked to be transferred to divisional duties, which occurred in December 1986. 20In 1987, he made application before the Victims' Compensation Tribunal for compensation arising out of the 1985 incident. He claimed compensation on the basis of a number of conditions including stress, depression, anxiety and the like. He was awarded compensation in February 1990. 21During the course of his career, the appellant became involved in the investigation of the activities of a number of high profile persons with criminal records. Included were persons named as Savvas and Arthur "Neddy" Smith. 22As a result ostensibly of certain threats made by Mr Smith, the appellant and his family were forced to move residence and to enter the Witness Protection Scheme. He remained under that program with his family for some 13 months under what he described as "a high level of stress". 23Late in 1988, it appears that Mr Smith made a number of complaints about the appellant to the Independent Commission Against Corruption ("ICAC"). These were the subject of investigations which, obviously, involved the appellant and which he said put him under a great deal of stress in dealing with them. Eventually, the appellant was absolved by ICAC of any wrongdoing. 24The appellant was also subjected to investigations during the course of the Wood Royal Commission. An allegation had been made that the appellant and other police had unlawfully assaulted a person who achieved notoriety as a cat burglar. As a result of the investigations carried out by the Royal Commission, charges were brought against the appellant and others, which were eventually dismissed in March 2001. 25However, in 1996, by which time the appellant had been promoted to Superintendent, the then Acting Commissioner of Police, Mr NO Taylor, issued a notice under s 181B of the Police Act to the appellant in which he indicated that based on information arising out of the Royal Commission, he had formed the opinion ... that you have engaged in corrupt conduct, or any other conduct, constituting an indictable offence and that you are no longer a fit and proper person to hold a position in the New South Wales Police Service. The allegations concerned the assault on the cat burglar by spraying him with mace, an allegation that the appellant had conspired with others to fabricate certain evidence, that the appellant had given false evidence to the Royal Commission, that he had committed perjury and the like. 26Solicitors acting for the appellant wrote to Mr Taylor on 23 August 1996 asking that rather than face up to and deal with the notice, he (the appellant) ought to be permitted to tender his resignation from the Police Force. On 29 August 1996, Mr Taylor declined to accept the appellant's resignation and dismissed him from the Police Force. 27The appellant instituted reinstatement proceedings in the Industrial Relations Commission of New South Wales. These were resolved and a consent order was made to the effect that the appellant would be reinstated in his employment effective on and from 29 August 1996 on the understanding that he would tender his resignation, which he did on the date that the settlement was effective, namely 14 November 1996. 28Eventually, all of the charges brought against the appellant arising out of the Royal Commission and, as I have said, the ICAC proceedings were dismissed. 29On 25 January 2005, the appellant wrote to the Commissioner of Police seeking reinstatement or compensation in lieu. He did that in conjunction with applications made by himself and three other former police officers, all of whom had been involved in the sequelae of the proceedings arising out of the Royal Commission. The letter set out in some detail the reasons why it was said that the information and evidence upon which any adverse proceedings had been instituted was false. 30It was put to the appellant in cross-examination in the proceedings that he did not mention in the course of this long document any medical condition from which he was suffering that was indicative of any complaint that he had an infirmity of the mind. The appellant responded by saying that that particular letter had been written for a particular purpose and was written in conjunction with applications made by three other former police officers. Accordingly, any mention of any medical or other conditions would have been irrelevant. Having perused this letter, I accept the appellant's explanation. 31For completeness, I note that the appellant transferred to "Strategy and Review" in September 1994 and did not thereafter become involved in operational duties. Consequent upon the issue of the s 181B notice, the appellant was dismissed from the police service on 29 August 1996. Thereafter, he obviously did not perform any duties as a police officer, despite his reinstatement and concurrent resignation on 14 November 1996. 32In oral evidence, the appellant clarified his circumstances within the Police Force. He said that the two incidents in which he had killed offenders had remained on his mind, particularly as both had fixed their eyes on him as they expired. The incident where he shot an offender whose firearm turned out to be a replica also caused the appellant concern because he feared that he had shot him needlessly. However, by 1987 when he had been transferred out of the SWOS work and was performing general duties at Campbelltown, he said that he adapted to his concerns and the memories of these events by focussing upon his work and by working intently. He said that he did not take any time off work because he didn't want to give in to these problems. However, the problems that he encountered with the ICAC investigation and the proceedings instituted as a result of that investigation, and also the Royal Commission, "accelerated everything". These were accompanied by intense feelings of humiliation at the thought that he was being caught up in these proceedings. At that stage, by 1996, he said that he was "already damaged goods". 33In 1996, he was working in a staff position and continued to do so until he was suspended from duty upon service of the 181B notice. 34In cross-examination, it was put to the appellant that if he had not been forced out he would have remained in the Police Force as a Superintendent. He denied this. He said that after speaking with Dr Spragg, his psychiatrist, and Dr Guest, his general practitioner and taking into account how he felt, he said that: I had already determined that I would not be able to carry on as a police officer. But I wanted to leave under my terms, and I had the mistaken belief that I could not initiate that action while I had these matters hanging over my head. 35The appellant also said that throughout 1995 and 1996, he had lost confidence in his ability to perform his duties and he felt that his integrity as a member of the police force was an issue. Furthermore, these pressures remained in fact until 2001 when the last trial was concluded and the appellant was acquitted. 36The appellant was asked about his current circumstances. He said that he remained affected by his past including the particular incidents, and the impact upon him of the enquiries and proceedings arising out of the ICAC investigation and the Royal Commission. He also felt that he had been treated unfairly and that that feeling of unfairness had never left him. 37In cross-examination, the appellant repeated that having consulted Dr Spragg "I just didn't feel as if I could carry on as an operational police officer." When pressed about his application for reinstatement made in January 2005, he said that the purpose of seeking reinstatement was to enable him to leave under more acceptable terms. He amplified this by saying: To clean the slate. To balance out the unfairness that had been meted out to us. I had no intention of going back. It would have been a tabletop exercise of reinstatement and retirement.

The medical evidence 38The earliest medical report is that of Dr Rob Milton, a psychiatrist to whom the appellant was referred by the Police Medical Officer following the shooting incident on 31 March 1985 when the appellant had fatally wounded an offender. In a report dated 12 April 1985, Dr Milton said, in part, that the appellant showed an appropriate response to the event. He was not pleased at having been responsible for the death of [the offender], but it is clear that he had no alternative and he accepts it as a fact of life in the course of his life as a police officer. He was able to let off steam with his colleagues that evening and had a somewhat restless night. There had been no emotional problems referrable to the incident since. 39Dr Warren Argall, a psychiatrist, examined the appellant on 31 December 1985, the appellant having been referred to him by the Police Medical Officer following the shooting incident on 19 December 1985. Dr Argall commented that he was impressed by the proficiency of the appellant, especially in his leadership role. He thought that there had been "no discernable negative impact on his family life or his emotional life at this point and I would be surprised if any developed." However, Dr Argall then said: Probably the most stressful aspect of this incident is that it is the second time within 12 months that he has had to fire at an offender, the first being on 31 st March 1985, when the offender was killed. Whilst not depressed about having found himself in a similar situation within a relatively short period of time, he was disappointed that it had fallen to him to have to do this. 40Finally, Dr Argall commented: I think that even with as senior and experienced an officer as Harding, it is valuable to go through these follow-up interviews because over an extended number of incidents cumulative stress could become important, although at the present time I do not see him as being in any way impaired by his experiences. 41Dr Argall subsequently examined the appellant on 30 November 1987. 42In that report, Dr Argall referred to his previous report in which he mentioned that cumulative stress "would become an important problem in officers who are exposed to a number of such incidents." He referred also to the earlier incident in 1979 at Sydney Airport where the offender had been fatally wounded by the appellant. Dr Argall referred to the manner in which these incidents had impressed themselves upon the appellant's mind and the consistent way in which he had coped with them. He referred to the appellant's narration of the regular recurring memories of these incidents, and the fact that the appellant had transferred to divisional duties in September 1986. 43Dr Argall concluded by expressing the view: [A] correct clinical assessment of the impact on Detective Sergeant Harding of the shooting incidents in which he has been involved is that he has made an adaptive adjustment to the presence of recurrent unpleasant memories. His adjustment is adaptive in that it results in him being unimpaired in his performance of his duties as a police officer. This adjustment is however made at personal psychological and emotional cost to him and it is clear that he will have to maintain that adjustment on a long term basis, certainly throughout the rest of his active police career. 44Dr Milton examined the appellant again on 15 January 1987. In a report of 19 January 1987, Dr Milton referred to the subsequent shooting incident, referred to the later incident and to what the appellant described as "an increasing level of apprehension in the past year whenever he has to deal with or direct major operations ... ". He noted that the appellant was not "keen to admit it to himself." 45Dr Milton said in his report that even though he did not think that there would be any serious emotional consequences as a result of the incident, and that that had proven to be the case, "There has, however, been an increase in the level of apprehension he feels when directing operations of this nature now." Dr Milton referred to the fact that regular exposure to stressful events gradually creates a certain apprehension for individuals even though they continue to perform their duties satisfactorily. Dr Milton concluded that this "indicates that his experiences have had a perceptible effect upon him and will predispose him to the effects of future incidents." 46The appellant was referred to Dr Onsy Mattar, a consultant psychologist, by solicitors acting for him in connection with a workers' compensation claim. Dr Mattar reported on 16 June 1987 that the appellant, after referring to a number of specific stressful incidents, complained that he was, or was observed to be, suffering from stress, depression, anxiety, a sense of guilt feeling, insomnia, phobic reaction and nervousness. Dr Mattar diagnosed the appellant as suffering from "acute depression, stress and a severe sense of guilt" as a result of the incidents that occurred in 1985. He noted that the appellant was "receiving psychotherapy treatment and counselling to help overcome his psychological condition." 47Dr Mattar thought that the appellant would require long-term psychological treatment and counselling, "to help overcome his fears and anxiety, and alleviate the guilt feeling. It is therefore my opinion the Mr Harding's obvious future prognosis should be guarded." 48After ICAC commenced its investigations into the appellant, he was referred by his general practitioner, Dr Phillip Guest, to Dr GS Spragg, a psychiatrist. The appellant first saw him on 10 March 1994. In a report dated 29 March 1994, Dr Spragg commenced by saying: This is an extremely stressful time for Superintendent Harding which he is enduring with considerable fortitude. None the less it has affected him deeply and, as you suggest, he is unlikely to be able to serve in the New South Wales Police Force again. Mr Harding brought with him a resume of his police service which indicates that he has always been in the most active and dangerous of sections and has performed in a most efficient and courageous way, gaining two commendations for bravery. His experiences with the criminal world have been traumatic in a physical sense but having, in the past, the support of the Service and the legal system he has borne these without visible effect. The stress he is under at the moment is different. Suddenly he feels unsupported and in fact attacked from behind. 49Dr Spragg then went on to relay the circumstances that attended the ICAC investigation, as told to him by the appellant, including in particular allegations made by Mr Smith, and an allegation that in some way the appellant had lied about a conversation with a fellow police officer. Dr Spragg observed that when the appellant was exonerated, about which he expressed some confidence, "what will be left will be the remnants of a brilliant career." 50Dr Spragg then set out in his report some background information about the appellant and proceeded to detail some information made available to him by the appellant's wife. In his report, Dr Spragg said: Interviewed separately Mrs Harding, a small resolute lady who appeared to be exercising considerable self control under which the tension and anxiety was evident, confirmed the effect events over the past four years have had on her husband and herself. She described his great strengths which have always sustained the family in adverse situations and how even under the present extreme conditions he has managed to maintain his equilibrium, although the signs of stress are evident to her. His police career has always featured physical dangers from his dealings with the criminal world, not the least of which involved Neddy Smith and his associates, especially Savvas. Considerable anxiety surrounded events leading up to the conviction of Savvas. This began in 1988 with a huge bribe offer and then death threats which resulted in the family having to change their domicile and take protection. Having to sell there [sic] house in this move involved them in a substantial monetary loss from which they have not recovered. She feels acutely the gross injustice now being heaped upon them by an indifferent legal system against which her husband has to defend himself. When the ICAC hearings began in 1992 Brian Harding showed the first outward signs of losing control over his emotions. He began to drink heavily whereas previously he never drank at home alone and confined his drinking to a Friday night or social functions. After a day at an ICAC hearing he would come home feeling let down. He would sit in the lounge room pre-occupied with his problem, she would call him from another room and he would not hear. He fatigues easily and sleeps badly, awaking at 3am. He worries over his loss of sexual drive, though she is supportive in this. She was very proud of his police record even though it meant the family had to take second place. Now she just wants him out of the Force. 51In a later report, dated 8 September 1995, Dr Spragg informed Dr Guest that the appellant had continued to see him "on an irregular and ad hoc basis" up until the date of the report. 52This report of Dr Spragg is the nearest in point of time of any medical report to the date of the appellant's retirement. Accordingly, the observations of Dr Spragg are of great significance. On the evidence, the appellant would have had no inkling of any move by the Assistant Police Commissioner to remove him from the Police Force, which did not occur until August 1996, and there was no suggestion at that stage that the appellant would be making any claim of the kind which is the subject of these proceedings. It cannot be said, therefore, that any complaints made by the appellant to Dr Spragg were of a self-serving kind. Furthermore, the material contained within this report contains observations of behaviour that are manifestly inconsistent with any suggestion that the appellant was coping with the stresses and strains that had been visited upon him in the course of his employment within the Police Force. Accordingly, I set out below a substantial extract from this report because it encapsulates the appellant's circumstances as at 8 September 1995. He has continued to suffer an anxiety reaction but has largely sought to deal with it himself, often making an appointment and then having to cancel due to some commitment at work. His symptoms have been exacerbated over the past few months by his involvement in the ICAC investigations of the allegations made by criminal Neddie [sic] Smith. Smith has now been completely discredited as a witness and the reason for investigating Supt Harding has been demonstrated to be groundless. However, the authorities continue to pursue him on the technical matter of conversing with another witness outside the hearing. The matters discussed did not relate to the case but this seems not to matter. Given the atrocious handling of fabricated cases against other honest police Brian Harding feels he has reason not to feel completely secure. He stated that he is "in a permanently anxious state of mind, never off thinking what has happened over the past five and a half years, especially going into witness protection." This was because of death threats made by criminals Neddy Smith and Savvas. A complete relocation was made of him and his family which was very traumatic and disruptive for them, quite apart from the very serious threats. This was followed by very questionable methods by Counsel Assisting the ICAC which have resulted in charges being made against him. He sleeps poorly, falling asleep without difficulty when he is exhausted but lying awake and ruminating over events at other times. Invariably he awakes at 3am and continues to churn over in his mind recent events as well as past traumata. Thoughts that return to trouble him involve two men he killed and to a less extent two others whom he wounded in the course of duty. In 1979 he was called to the attempted hijack of a Pan Am jet at Sydney Airport by Dominico Speranya. A Federal policeman had managed to free Speranya's hostage before Harding arrived. Speranya was at this stage positioned in the aircraft above the petrol tank which was half filled making it highly dangerous. He was about to light a fuse to a bomb when Harding fired at short range, hitting him in the chest and as the man continued with his efforts Harding was obliged to fire again, this time hitting him in the mid forehead. He has vivid recall of the man slumping back in the chair and of his head falling back so that he looked at Harding as he died with blood pumping from the wound. In the second occasion, in 1985, Harding was one of a group of police conducting a "stake-out" on a house in Bankstown when Toni Edwards, their quarry, arrived. As Harding attempted to arrest him Edwards drew a gun and Harding was obliged to shoot him at a distance of two or three feet with a shot gun. The entry wound was small but severe internal damage resulted. As Edwards died he looked in exactly the same way that Speranya had done, bringing the whole experience back to Harding. During this present time of pressure he has begun to relive these episodes. He has bad dreams which feature the above deaths and more often the hearing by ICAC. In these his family, whom he had barred from attending the hearing, is seated in the public gallery. He is most distressed over the very traumatic effect these matters are having on his family and of the loss of prestige they have all suffered among their friends and neighbours. Because of the press coverage he has undergone significant humiliation and feels he has lost creditability within the Police Force. But the most hurtful part is the impact on his family. He has brief periods of dissociation when he does not know, momentarily, where he is. He often loses concentration and has almost run into the back of cars which shocks him as he often has his daughter's baby in the car. I understand his blood pressure is elevated and that you are concerned about the weight he has gained. It is often a feature of anxiety that sufferers take to food to bring some comfort. This is a very sorry case. The great tragedy is that Brian Harding has had a very fine career and men of his calibre are badly needed in the Police Service today. I feel I should continue to be available to see him on an ad hoc basis until the matter is cleared up. 53The last report available from Dr Spragg is dated 2 November 2004 and was written after Dr Spragg had retired from active practice. The appellant had seen him on an irregular and ad hoc basis from time to time, including a period when Dr Spragg was residing in retirement villages on the central coast. 54In that report, Dr Spragg describes the appellant as suffering from chronic Post Traumatic Stress Disorder "with frequent acute episodes in response to continuing, unexpected traumatic experiences." 55The report touches upon the court case that resulted from the ICAC investigation in which, after several weeks, the appellant was found not guilty by a jury and proceedings that were instituted against the appellant arising out of the Royal Commission in which, again, the appellant was cleared of any wrongdoing. 56The report then deals with a number of symptoms including difficulty in sleeping, a regression into past events, mood swings and the like. 57Much of this particular report appears to me to be coloured by the late Dr Spragg's contempt for the lack of support that he perceived to be given to worthwhile police officers by both the legal system and the Police Force. The report is of primary interest for the pronouncement of the condition of chronic Post Traumatic Stress Disorder, albeit many years after the appellant has retired. 58The appellant was referred by solicitors to two consultant psychiatrists, Drs Peter Klug and Anthony Dinnen. 59Dr Klug reported on 17 November 2005, after interviewing the appellant on 6 and 22 July 2005. 60The appellant complained to Dr Klug about a number of symptoms that he said "started in about 1992 in the context in what he regarded as the humiliation of the ICAC investigation and the allegations by Neddy Smith." The symptoms as noted included insomnia, "a high level of vigilance" in connection with concerns about noise, possible surveillance, suspicion of strangers and the like, "a preoccupation with events that occurred at work", short-temperedness, excessive alcohol consumption and three bad panic attacks in the mid-1990's. Those symptoms were said to have "built to a crescendo in 1992 and 1993" and worsened again during the Police Royal Commission. 61The appellant informed Dr Klug that he had been "made non-operational in 1994, with the release of the ICAC report. He was never fully operational again." This is consistent with the appellant's own evidence to the effect that thereafter he was given staff positions to perform. 62After reviewing the history given to him by the appellant and a great deal of documentary evidence including the medical reports to which I have referred, Dr Klug expressed the opinion that the appellant was suffering from "an Adjustment Disorder with features of anxiety." 63Dr Klug summarised his opinion in the following terms: In summary, Mr Harding has suffered from an intermittent Adjustment Disorder with features of anxiety which at times has probably been a chronic Adjustment Disorder. He has also suffered from isolated panic attacks. Whether he achieved full inter-episode remission up to the time of his resignation in 1996 is uncertain. It appears that he continued to suffer from significant symptoms after his resignation but currently appears to be functioning normally. I believe that his Adjustment Disorder is now in remission. He has also suffered from alcohol dependence. Alcohol dependence is common amongst police officers and to some extent Mr Harding has probably used it as a form of self-medication with a socially available drug. In response to your specific enquiries, it is my view that he has suffered from a psychological condition that would have made him incapable of performing the duties of his office at the time of resignation because of the risk a return to duties of his office would have represented to his mental health, given the stresses he had been exposed to. The stresses took the form of exposure to extremely traumatic situations but also to what he regards as extensive and unjust investigations with respect to his integrity as a police officer. Currently, in a hypothetical sense, if Mr Harding were to attempt to return to police work this would represent a significant risk to his mental health. It is my view that, on the balance of probabilities, his recurrent chronic Adjustment Disorder with features of anxiety was substantially caused by his policing duties. It is possible that his alcohol dependence has played a role in perpetuating his symptoms but I do not regard his alcohol dependence as a primary problem with respect to his presentation. 64Dr Anthony Dinnen's report is dated 11 October 2010. He also related, at some length, the appellant's personal history and his symptoms as well as referring to a great deal of documentation including the medical reports to which I have referred. 65Dr Dinnen expressed his opinion in the following terms: If ever there was a case of chronic post traumatic stress disorder, this must be it. It is intriguing to me that only Dr Spragg sought fit to make that diagnosis. The more broadly based diagnosis of chronic adjustment disorder made by the other psychiatrists is just as applicable. The patient's preoccupation with the many traumatic incidents during his lengthy Police Service speak for themselves, as does his ability to have coped with those traumatic events through the years. His resistance to acknowledging the impact of these experiences, as evidenced by Dr Prior's report, exemplifies his long term coping strategy so well described by Drs Milton and Argall in the mid to late 1980's. There is no doubt however that the stress of the inquiries challenging his integrity and providing a threat of criminal prosecution and conviction disturbed this balance, and led to the development of frank ongoing psychiatric symptoms from 1992 onwards. Those symptoms are still evident at interview, although it is quite obvious that his main coping strategy, a signal feature of post traumatic stress disorder, of avoidance, is an effective and indeed a major element of his ability to cope through the years. It is my view that he was permanently incapable of performing police duties as at the day of his resignation from the NSW Police Force on 16 November 1996, because of chronic post traumatic stress disorder (alternatively diagnosed as chronic adjustment disorder). I might add that I am very much influenced by the reports from the late Dr Griff Spragg, who was known to me as a professional colleague, and was a man of great integrity and capacity. His view of this patient's reaction to the inquiries, and his description of this exemplify problems that he had encountered with other police, is very powerful in my view. His assessment of Mr Harding's character is one that I would value over any other such expert opinion. 66The appellant was examined by Dr Michael Prior, a consultant psychiatrist, at the request of the respondent and reported to the respondent on 23 March 2007. 67Because the respondent relied heavily on the opinion of Dr Prior, it is important that I spend some little time reviewing it. 68Dr Prior had been provided with a number of medical reports, including those to which I have referred, which were available as at March 2007. He also took what he called a "brief history associated with exit date". In that brief history, Dr Prior relayed the following: He reported that he was "dismissed in August 1996". He reported that he appealed this dismissal. He was reinstated "on the proviso that I resign on 14.11.96". When asked to describe the situation leading up to his dismissal in August 1996, he reported that a criminal that he had arrested had told the ICAC that he had given him the "green light" for armed robberies. He stated that this was a false accusation. He stated that he and the arrested criminal were "sworn enemies". He reports that as a result of this accusation he was summonsed to ICAC. He eventually "stood trial" over the incident but stated that the "charges were thrown out". In 1996 he was called to the Royal Commission involving another incident involving an armed robber who was also a "child molester". He reported that this Royal Commission was "under the full glare of publicity". As a result of this he was "dismissed". He reported that his involvement with the ICAC had "knocked me about and destroyed me". He reported that "the Royal Commission came on the back of this". When asked whether he was hurt on duty at the time of his dismissal, he stated that he was not. When asked about what specific injury was associated with the exit date, 14 November 1996, he reiterated that he had been dismissed in August 1996 and had been reinstated on the proviso that he resign on 14 November 1996. He did not describe a specific injury associated with this date. 69The above passage contains a reference to a question, presumably asked by Dr Prior of the appellant, as to whether he was "hurt on duty at the time of his dismissal" and Dr Prior reported that he replied in the negative. Dr Prior was not called to give evidence and I am unsure precisely what this reference to being "hurt on duty at the time of dismissal" means. The appellant was asked in cross-examination some general questions about the truthfulness of what was contained in Dr Prior's report. He indicated that he did not accept everything that was said by Dr Prior and that Dr Prior had reported erroneously about a number of matters. However, the appellant was not asked to specify what those matters were. 70The report of Dr Prior then deals with a number of items that were in response to "specific questions" posed by the respondent in its letter of referral. These included a clinical history with a number of subsets dealing with psychiatric symptoms, psychiatric diagnoses, psychiatric treatment and the like. The psychiatric diagnoses are those that were contained in the various medical reports to which I have previously referred. 71After setting out his findings "on comprehensive clinical examination", Dr Prior dealt with "psychiatric history associated with his exit date". After referring to the shooting incidents, the ICAC hearing and the Royal Commission and his subsequent dismissal, Dr Prior said: He reported the onset of affective symptoms in 1985 associated with the two shootings. He reported that these were maximum around 1996. He reports that they diminished after leaving the Police Service to some extent they had been present in a fluctuating form since." 72There is some clue given to the previous reference in the report to the appellant's dismissal and whether he was hurt on duty at the time when Dr Prior described the appellant's current psychiatric status and his "current functioning". He said: He reported that he ceased work on the date that he was dismissed. When asked why he ceased work on that date, he reported that it was because he was dismissed. 73In commenting on how the appellant's present "presentation compares to the medical reports and other materials sighted", Dr Prior said: I am in general agreement with the report of Dr P Klug. I do not believe that he suffers chronic Post-Traumatic Stress Disorder but rather a chronic Adjustment Disorder With Anxious and Depressed Mood. 74Dr Prior was then, obviously, asked to provide, by way of conclusions, his opinion in relation to the appellant's condition by way of diagnosis, causation and "rationale for opinion". In terms of diagnosis, Dr Prior said: I believe that he suffered from a chronic Adjustment Disorder with Anxious and Depressed Mood in the context of obsessive compulsive personality traits at the time of his exit date. He currently still suffers from this. 75The reference to "obsessive compulsive personality traits" is the first occasion in which I have elicited any specific characterisation of the appellant's symptoms as expressed in this manner. Dr Prior does not state what those personality traits are with any specificity. In the context of the diagnosis made and the observations that the appellant still suffers from it, it is probably unnecessary to pursue this matter further. 76In terms of causation, Dr Prior said: The cause of his chronic Adjustment Disorder with Anxious and Depressed Mood was the situation in the Police Service around the time of his dismissal, particularly associated with his appearances before ICAC and the Royal Commission. 77In describing his rationale for this opinion, Dr Prior said: I have based my opinion upon his mental state examination, the history elicited, a reading of the background material provided, the fact that he historically and currently fulfils diagnostic criteria for an Adjustment Disorder but fails to fulfil diagnostic criteria for any competing differential diagnostic possibilities. In addition, there were no causes outside the situation in the Police Service, particularly those associated with the ICAC hearing and the Royal Commission that were associated with his symptoms. 78Dr Prior's report then deals finally with "specific schedule of questions" some of which appear relevant to these proceedings, but many are not. 79Dr Prior expressed the opinion, albeit briefly, that the appellant was not suffering any incapacity at the time of his exit date because the reason for him leaving the Police Force was the fact that he was dismissed. In indicating "whether the applicant was incapable of discharging his or her duties of office at exit date" Dr Prior said: "He specifically stated to me that he ceased his duties because he was dismissed rather than for any medical or psychological cause." Further on, Dr Prior again describes the appellant as having been dismissed in August 1996 and this being the reason he ceased work. The exit date was agreed upon. He reports that he appealed his dismissal and agreement was made that he be reinstated on the proviso that he resign on 14 November 1996. He did not describe being incapable of discharging his duties around that time. 80It seems to me, from reading the report of Dr Prior, that he has focussed his attention on the reason for dismissal rather than providing any analysis or opinion as to whether, in fact, the appellant was suffering from an infirmity of mind on 14 November 1996, which is the task that should have been provided to him. Furthermore, in focussing attention on the appellant having been dismissed from work on that date, he did not focus his attention on the fact that, firstly, the appellant had not worked since August 1996 and that for some time the appellant had been undertaking administrative duties only and had not performed any operational role. Dr Prior did not address the need to consider the appellant's duties in terms of an operational police officer as is required by the Act, this being a matter to which I shall refer later in these reasons for judgment. 81In making these observations, I should not be seen to be critical in any way of the manner in which Dr Prior has expressed his opinion. Unfortunately, Dr Prior was bound to answer those specific questions asked of him by the referring officer within the respondent's organisation. Whilst some of those questions may have been relevant, they were not expressed in terms required by an application of the provisions of the Act and some of the questions were clearly irrelevant. This makes the task of analysing Dr Prior's opinion that much more difficult. Nevertheless, the opinion of Dr Prior is useful in that he diagnoses the appellant as suffering from a chronic adjustment disorder with anxious and depressed mood, consistent with some of the other medical opinions to which I have referred.

Infirmity of mind 82The appellant contended that his incapability stemmed from an infirmity of the mind, which he asserted was Post Traumatic Stress Disorder ("PTSD"). The respondent submitted, without conceding that the appellant was suffering from any incapability as contemplated by s 10B, that any infirmity of the mind from which the appellant suffered was an adjustment disorder. Before considering these competing contentions, it is necessary to consider what is meant by an infirmity of the mind. In Ford, Roger v the State Authority Superannuation Board [1994] NSWIRComm 217, I noted that the words "infirmity of mind or body" appeared in the 1850 Colonial Police Act . They appear to have continued to be used by the legislature to the present day, presumably without concern as to their meaning in modern times. After reviewing such decided cases as may have assisted in understanding what might be characterised as an "infirmity of mind" and dictionary definitions, I concluded that: In the context of a reference to the mind, infirmity connotes an abnormality in the sense that it can be said that judged by community standards there is some abnormality of behaviour as a result of the function of the mind. This is not necessarily equivalent to a recognised psychiatric state but is more than a mere idiosyncrasy or unusual conduct. There must also be an enduring element.

PTSD or adjustment disorder? 83It is notorious that psychiatrists use as a diagnostic tool criteria contained within the Diagnostic And Statistical Manual Of Mental Disorders published by the American Psychiatric Association. The current edition is the fourth edition, having been produced in 1994. This work consists of a classification of mental disorders to assist medical practitioners and others for use "in clinical, educational and research settings." (See the Manual at xxiii). 84In seeking to discuss what is a mental disorder and its classification, the Manual contains this caveat: Moreover, although this manual provides a classification of mental disorders, it must be admitted that no definition adequately specifies precise boundaries for the concept of "mental disorder". The concept of mental disorder, like many other concepts in medicine and science, lacks a consistent operational definition that covers all situations. All medical conditions are defined on various levels of abstraction - for example, structural pathology (eg, ulcerative colitis), symptom presentation (eg, migraine), deviance from a physiological norm (eg, hypertension), and etiology (eg, pneumococcal pneumonia). Mental disorders have also been defined by a variety of concepts (eg, distress, dyscontrol, disadvantage, disability, inflexibility, irrationality, syndromal pattern, etiology, and statistical deviation). Each is a useful indicator for a mental disorder, but none is equivalent to the concept, and different situations call for different definitions. (At xxi). 85Furthermore, the manual recognises that which is obvious, namely that there are no scientific means of characterising with exactitude each and every category of mental disorder. For example, at xxii the following is said: In DSM-IV, there is no assumption that each category of mental disorder is a completely discrete entity with absolute boundaries dividing it from other mental disorders or from no mental disorder. There is also no assumption that all individuals described as having the same mental disorder are alike in all important ways. The clinician using DSM-IV should therefore consider that individuals sharing a diagnosis are likely to be heterogeneous even in regard to the defining features of the diagnosis and that boundary cases will be difficult to diagnose in any but a probabilistic fashion. This outlook allows greater flexibility in the use of the system, encourages more specific attention to boundary cases, and emphasizes the need to capture additional clinical information that goes beyond diagnosis. In recognition of the heterogeneity of clinical presentations, DSM-IV often includes polythetic criteria sets, in which the individual need only present with a subset of items from a longer list (eg, the diagnosis of Borderline Personality Disorder requires only five out of nine items). (At xxii). 86Extracts from the Manual were helpfully tendered by the respondent. The opening words of the manual, in describing the "diagnostic features" of PTSD are to the following effect: The essential feature of Post Traumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity; or witnessing an event that involves death, injury or a threat to the physical integrity of another person ... (At 424). 87The "diagnostic features" of adjustment disorders are described in the Manual as follows: The essential feature of an Adjustment Disorder is a psychological response to an identifiable stressor or stressors that results in the development of clinically significant emotional or behavioral symptoms. The symptoms must develop within 3 months after the onset of the stressor(s) (Criterion A). The clinical significance of the reaction is indicated either by marked distress that is in excess of what would be expected given the nature of the stressor or by significant impairment in social or occupational (academic) functioning (Criterion B). In other words, a reaction to a stressor that might be considered normal or expectable can still qualify for a diagnosis of Adjustment Disorder if the reaction is sufficiently severe to cause significant impairment. This category should not be used if the disturbance meets the criteria for another specific Axis I disorder (eg a specific Anxiety or Mood Disorder) or is merely an exacerbation of a preexisting Axis I or II disorder (Criterion C). However, an Adjustment Disorder may be diagnosed in the presence of another Axis I or Axis II disorder if the latter does not account for the pattern of symptoms that have occurred in response to the stressor. The diagnosis of an Adjustment Disorder also does not apply when the symptoms represent Bereavement (Criterion D). By definition, an Adjustment Disorder must resolve within 6 months of the termination of the stressor (or its consequences) (Criterion E). However, the symptoms may persist for a prolonged period (ie longer than 6 months) if they occur in response to a chronic stressor (eg a chronic, disabling general medical condition) or to a stressor that has enduring consequences (eg the financial and emotional difficulties resulting from a divorce). The stressor may be a single event (eg termination of a romantic relationship), or there may be multiple stressors (eg marked business difficulties and marital problems). Stressors may be recurrent (eg associated with seasonal business crises) or continuous (eg living in a crime-ridden neighborhood). Stressors may affect a single individual, an entire family, or a larger group or community (eg as in a natural disaster). Some stressors may accompany specific developmental events (eg going to school, leaving the parental home, getting married, becoming a parent, failing to attain occupational goals, retirement). 88Whilst I might be personally tempted to characterise the sequelae of the various stressors described by the appellant as an adjustment disorder rather than a PTSD upon a lay reading of the diagnostic features of each of them as contained within DSM IV, it would be inappropriate to do so because this is a matter that is clearly the subject of an expert opinion. Unfortunately, the expert opinions that have been expressed in the evidence given in these proceedings do not all accord with each other. 89There is mention in many of the earlier reports of the appellant suffering from anxiety. It is interesting to note that in none of the very early reports is there any specific diagnosis, predominately because prior to 1992 the appellant seems to have coped with his problems. However, subsequently, Dr Spragg diagnosed Post Traumatic Stress Syndrome, as did Dr Dinnen. However, Dr Dinnen in his report was prepared to accept the alternative diagnosis of adjustment disorder. Both Drs Klug and Prior prefer a diagnosis of adjustment disorder. 90The respondent in submissions said that if I were to find that the appellant suffered from any infirmity of the mind, I should use the diagnosis of adjustment disorder. I propose to do so, although I readily concede that the determination of which of the competing diagnoses is to be preferred is not an easy matter and one which, arguably, involves some degree of expertise. Furthermore, there has been no debate between any experts as to why one diagnosis might be preferred to another. 91I prefer the opinions expressed by Drs Klug and Prior to the effect that the appellant is suffering from an adjustment disorder rather than a Post Traumatic Stress Disorder, noting in this regard that Dr Dinnen does not deny the acceptability of such a diagnosis. The opinion expressed by Dr Spragg that the appellant was suffering from a Post Traumatic Stress Disorder was contained in a report issued by him after he had retired, which is quite emotional in character, as I have previously observed. 92The diagnostic features of a Post Traumatic Stress Disorder would certainly accommodate the development of symptoms following exposure to extreme traumatic stressors, which would include the killing of two persons and the wounding of another. No doubt there are many other events that occurred throughout the appellant's career with the police force, which I have not referred to in any detail, that might, in appropriate circumstances, be characterised as stressors for the purpose of a diagnosis of Post Traumatic Stress Disorder. However, the evidence is that there were precipitating events which occurred in 1992 and subsequently that, although extremely stressful for the appellant, may not necessarily be characterised as extreme traumatic events. It is clear from the evidence that there has been on the part of the appellant "a psychological response to an identifiable stressor or stressors that results in the development of clinically significant emotional or behavioural symptoms." The history is one of multiple stressors over a period of time that, in their cumulative effect, have created a condition by which the appellant has been unable to cope with the circumstances of his office as a police officer. 93Consistent then with a substantial body of the medical evidence, I would prefer to characterise the appellant as, at the relevant time for the purpose of these proceedings, namely his exit date, as suffering from an adjustment disorder.

Was the appellant incapable of personally exercising the functions of a police officer? 94Secton 10B(1) requires certification of incapability of personally exercising the functions of a police officer as referred to in s 14(1) of the Police Act 1990. 95In considering this matter, I take into account the provisions of subsection 2A, which I have earlier set out. I note that subsections (2B) and (2BA) have been repealed so that the reasoning of the Full Bench of this Court in Morley v SAS Trustee Corporation (2007) 162 IR 177 is no longer applicable. The respondent submitted, and I accept, that in considering the appellant's incapacity under s 2A I take into account that the appellant would be expected to carry out all of the duties and functions of a police officer which would include the necessity to investigate any crime and take appropriate measures either to prevent a crime or to apprehend an offender.

Was the appellant incapable as provided for in s 10B on 14 November 1996? 96Again, this question needs to be answered by reference to the available medical evidence. 97As early as 29 March 1994, after the ICAC proceedings, Dr Spragg expressed the opinion that the appellant was "unlikely to be able to serve in the New South Wales Police Force again." This opinion was based on the emergence in 1992 of "the first outward signs of losing control over his emotions." As at 8 September 1995, a report that is closest in point of time to the appellant's exit date, Dr Spragg referred to an exacerbation of symptoms "over the past few months" by reference to the ICAC investigations, the need to go into witness protection with his family and continuing thoughts about the two men whom he had killed and, to a lesser extent, others whom he had wounded in the course of duty. Whilst Dr Spragg does not clearly say in that report that the appellant was at that stage unlikely to be able to serve in the New South Wales Police Force again, it is plain from a reading of that report in association with the comments made in the report of 29 March 1994 that the appellant's condition had substantially worsened over the period of time. 98I would find on the basis of the opinion expressed by Dr Spragg on those occasions that the appellant was on the exit date incapable of personally exercising the functions of a police officer, as referred to in s 14(1) of the Police Act 1990. It is necessary that I state some further reasons for so finding. 99The discussion that follows needs to be prefaced by reference to some earlier opinions expressed about the effect on the appellant of the events of 1985 and 1988. Dr Argall, in his report of 28 January 1986, said that it was important to conduct follow-up interviews with an officer as senior and experienced as the appellant "because over an extended number of incidents cumulative stress could become important ... ". In his later report of 1 December 1987, Dr Argall refers to the appellant's adaptive adjustment to the presence of recurrent unpleasant memories. His adjustment is adaptive in that it results in him being unimpaired in his performance of his duties as a police officer. This adjustment is however made at personal psychological and emotional cost to him and it is clear that he will have to maintain that adjustment on a long term basis, certainly throughout the rest of his active police career. 100As at 19 January 1987, Dr Milton expressed a similar opinion. He referred to the appellant's increasing level of apprehension in the previous year whenever he had to deal with or direct major operations. He referred also to the gradual development of a certain apprehension for events that are stressful to persons who are regularly exposed to them. In the context of the appellant's circumstances, he said that the appellant's increasing level of apprehension and arousal in relation to operations did not then cause strong discomfort or interfere with the performance of his duties "but it indicates that his experiences have had a perceptible effect upon him and will predispose him to the effects of future incidents." Dr Mattar, in his report of 16 June 1987, also referred to a "guarded" future prognosis. 101It might be seen that all of these comments were prescient in the sense that undoubtedly, on the evidence, the appellant was subjected to extreme stressors by reason of the ICAC investigations and subsequent proceedings, the Royal Commission inquiry and subsequent proceedings and the manner in which he perceived himself as having been betrayed by the Police Force and the ignominy that he suffered as a result of his own loss of credibility and the impact that this had had on his family. 102Of course, the appellant was cleared in all proceedings of any wrongdoing of any kind including that which precipitated the then Acting Commissioner of Police to dismiss him from the Force, but this occurred well after his exit. 103In specific terms of incapability, Dr Klug expressed the opinion that the appellant was incapable of performing the duties of office at the time of resignation because of the risk a return to duties of his office would have represented to his mental health, given the stresses he had been exposed to. The stresses took the form of exposure to extremely traumatic situations but also to what he regards as extensive and unjust investigations with respect to his integrity as a police officer. Currently, in a hypothetical sense, if Mr Harding were to attempt to return to police work, this would represent a significant risk to his mental health. 104Whilst the other medical opinions have not referred to this matter in such clear terms, it is inherent in all of the relevant reports. Indeed, it must be a question of common sense that if the appellant were to attempt to perform work in the milieu of the Police Force, he would be exposed to all of the psychological stressors to which so much reference has been made by all of the medical practitioners whose reports are in evidence in these proceedings. Indeed, the report tendered by the respondent on its behalf is to similar effect. As previously quoted, Dr Prior said "I believe that he suffered from a chronic Adjustment Disorder with Anxious and Depressed Mood in the context of obsessive compulsive personality traits at the time of his exit date. He currently still suffers from this." In expressing the cause of this condition, Dr Prior said that it "was the situation in the Police Service around the time of his dismissal, particularly associated with his appearances before ICAC and the Royal Commission." This opinion accords wholly with the opinions of Drs Klug and Dinnen. The only reason why Dr Prior differs in terms of capability is that, for the reasons that I have already set out, he was not specifically asked to address this matter, and proceeded on the basis that the appellant was dismissed and that was the only reason why he was not working. 105For all of these reasons, and based on the medical opinion to which I have referred, I conclude that the appellant was incapable from an infirmity of mind, namely chronic adjustment disorder, of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act 1990 at the time of his retirement from the Police Force, namely 14 November 1996. I so certify. In doing so, I have relied upon the opinions of the following medical practitioners, namely Drs Milton Argall, Mattar, Spragg, Klug, Dinnen and Prior. 106The respondent conceded that there were no other matters of a technical or other nature that the Court needed to consider in dealing with this superannuation appeal. 107If follows, therefore, that the appellant succeeds in the appeal. 108I shall reserve costs with liberty to apply. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2011