John Murray v SAS Trustee Corporation

APPELLANT Mr M J Walsh of counsel SOLICITORS Oates & Smith (Ms K Smith) LEGAL REPRESENTATIVES: RESPONDENT Mr P Biggins of counsel SOLICITOR Mr B Matthews SAS Trustee Corporation

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: GLYNN J

JOHN MURRAY v SAS TRUSTEE CORPORATION Appeal against the decision of the State Super SAS Trustee Corporation given on 20/11/2000

1 John Murray (the appellant) appeals, pursuant to s 66 [sic] of, the Superannuation Administration Act 1996 (the SA Act) from the decision dated 20 November 2000 of the SAS Trustee Corporation (the respondent). (The appeal proceeds pursuant to s 88 of the SA Act.) 2 The appellant appeals against the respondent's wording of the specified infirmity by the non inclusion of his post traumatic stress disorder. 3 The reason why he appealed is: The specified infirmities are post traumatic stress disorder, adjustment disorder, depression and alcohol abuse in the certificate of medical incapacity pursuant to the Police Regulation (Superannuation) Act 1906 (as amended). 4 He sought an order: 1. That the applicant should be issued with a certificate of incapacity specifying the additional infirmities of the post traumatic stress disorder, adjustment disorder, depression and alcohol abuse pursuant to the Police Regulation (Superannuation) Act 1906. 5 The decision appealed against was set out in a letter dated 20 November 2000 from the SAS Trustee Corporation to Mr Murray's solicitor: I refer to the dispute by your client, former Sergeant John Murray, against the infirmities specified by the Police Superannuation Advisory Committee (PSAC), in a certificate of incapacity issued to Mr Murray on 24 February 1999, within the meaning of sections 8(1) and 10B(1) of the Police Regulation (Superannuation) Act 1906. On 17 November 2000, the Disputes Committee of the SAS Trustee Corporation (STC) determined Mr Murray's dispute, by confirming PSAC's decision and thereby limiting the infirmities which made Mr Murray incapable of discharging the duties of his office for the Police Service, to "Adjustment Disorder, Depression and Alcohol Abuse". 6 The appellant joined the Police Force (as it was then termed) on 20 July 1981. The last day he actually attended for work was 8 October 1997. The appellant went on sick leave on 10 October 1997 and made a Hurt on Duty (HOD) application 17 October 1997. In that claim for hurt on duty benefits the injury claimed by the appellant was "acute stress depression". His second HOD application was made on 5 October 1998, the injury claimed being "depression, post traumatic depression disorder". 7 The appellant was admitted to St John of God Hospital at Burwood on 2 February 1998 and was discharged on 23 February 1998. He continued as an out patient for a further period. 8 On 23 April 1998 he applied for a medical discharge from the New South Wales Police Service. The medical condition then claimed was "post traumatic stress disorder", and the name of his reporting doctor was stated as Dr Selwyn Smith. 9 On 3 March 1999, the Police Superannuation Advisory Committee received the following advice from the Delegate for the [Police] Commissioner: Sergeant John Murray. Decision in terms of Section 10B(3)(a) of the Police Regulation (Superannuation) Act, 1906, (as amended). In terms of Section 10B(3)(a) of the Police Regulation Superannuation Act, 1906, (as amended), I have decided that the suffering by Sergeant Murray of the infirmities of Adjustment Disorder , Depression and Alcohol Abuse , as specified in the certificate of the Police Superannuation Advisory Committee, dated 24 February 1999, were not caused by the member being hurt on duty. Sergeant Murray is being separately advised of my decision and appeal rights. 10 He was granted a medical discharge, for the infirmities of adjustment disorder, depression and alcohol abuse, his last day of service being 4 March 1999. Until he was medically discharged he had received sick pay. The nature of the discharge was such that he did not receive a pension. He lived on the lump sum payment he received from his superannuation fund, a short time after March 1999. As at May 2001 about $4,000 was left. 11 Mr M J Walsh of counsel appeared on behalf of the appellant and Mr P Biggins of counsel on behalf of the respondent. 12 Apart from the appellant himself, other witnesses called on his behalf were Dr Christopher Canaris, psychiatrist, Stuart Anthony Jones, former police officer and colleague of the appellant and Graham Rowland Smith, retired security officer from Bankstown Hospital. 13 A number of medical reports by the following doctors were tendered on behalf of the appellant: Selwyn M Smith, MB BS MD FRCPC FAPA FRC Psych DAB PN DPM, consultant psychiatrist, St John of God Medical Centre, Burwood. The appellant had been under his continual care from the time of his initial referral by his family physician and admission to St John of God on 2 February 1998 and as an outpatient until 11 May 1999. (Report dated 28 June 1999.) Dr Smith was not required for cross examination. Robert D Lewin, MB BS FRANZCP (Report 20 January 2000): not required for cross examination. John Albert Roberts MB BS, FRANZCP (Report 27 April 2000): not required for cross examination. Christopher Aristides Canaris, MB BS, FRANZCP, forensic psychiatrist (Report 14 March 2000): required for cross examination. Dr Canaris saw the appellant on 6 and 14 March 2000. 14 The only witness called by the respondent was Dr Robert Wade, MB BS, FRANZCP, M Psychotherapy, LL M, consultant psychiatrist. Submissions - Appellant 15 The sole issue for the court in this appeal to determine is whether, in relation to the appellant, there exists an infirmity of the body or mind within the meaning of s 8(1) of the Police Regulation (Superannuation) Act 1906 (the PRS Act), that infirmity claimed to be post traumatic stress disorder (PTSD). The relevant date for the Court's determination is 4 March 1999, the date of discharge. 16 It is common ground between the parties that Mr Murray was suffering the following specified infirmities, being infirmities of body or mind within the meaning of s 8 and s 10B, PRS Act: Adjustment Disorder, Depression and Alcohol Abuse. 17 It is also common ground between the parties that Mr Murray was incapable of discharging the duties of his office i.e. as a sergeant of police, within the meaning of s 10B, PRS Act due to the infirmities set out above. 18 In essence Mr Murray seeks the addition of Post Traumatic Stress Disorder (PSD) to those specified infirmities. The matter with which Mr Murray is aggrieved within the meaning of the SA Act s 88, in the determination by STC under s 67 (which relates to disputes including in regard to the PRS Act) is the absence of PTSD from the certificate under the PRS Act which decision was communicated to Mr Murray by letter on 20 November 2000. 19 It is submitted that the evidence establishes that over a period of more than sixteen years Mr Murray was exposed to stressors of an extreme nature which each by itself was a highly significant stressor but in combination the more than thirty-five events fulfil the diagnostic criteria for traumatic events in regard to PTSD within the meaning of DSM-IV. 20 In relation to the appellant's claim to be suffering post traumatic stress disorder, the appellant relied upon the evidence of both the therapeutic and forensic psychiatrists but in particular the evidence of Dr Selwyn Smith who provided reports to assist the Court. 21 The opinion of the treating psychiatrist, Dr Selwyn M Smith which is the therapeutic rather than forensic psychiatric evidence in this matter should it is respectfully submitted be afforded greater weight than other psychiatric evidence. The respondent did not require Dr Smith for cross examination. 22 Dr Canaris also provided assistance to the Court through oral testimony and was cross-examined as to his opinions. Dr Canaris gave evidence that the PTSD was the stem condition from which the other infirmities developed. Relevantly he stated that in his view the confrontation in October 1997 worsened the PTSD even though the circumstances of the event were not a stressor which fitted within the diagnostic criteria of PTSD per DSM-IV. 23 Dr Canaris stated that in his view and the circumstances of the matter the PTSD was the substantial factor causing Mr Murray to be incapable of discharging his duties as a Sergeant of Police as and from October 1997 up to and past 4 March 1999. 24 Further the respondent's psychiatrist, Dr Robert Wade, in his report of 27 August 2000 states as follows: Opinion (i) Mr Murray was suffering from Post Traumatic Stress Disorder/DSM4 Posttraumatic Stress Disorder at the time of his medical retirement on 4 March 1999. 25 Overall it is submitted that the opinions of Dr Smith and Dr Canaris should be preferred to those of the forensic psychiatrists whose opinions are propounded by the respondent. 26 The appellant respectfully submits that given a finding of the existence of PTSD as at 4 March 1999 such infirmity should be added to the certificate as Mr Murray was suffering from such infirmity caused (in the sense of by itself, or alternatively, materially contributed to) Mr Murray to be incapable of performing his duties in part or in whole as a Police Sergeant within the meaning of s 10 PRS Act. 27 That submission is supported by the decision of Daykin v SAS Trustee Corporation (Daykin) [2000] NSWIRComm 7 at paras [45]-[52]. Further, at para [70] the words of Kavanagh J are adopted and in addition it is respectfully submitted that this Court is bound by principles of stare decisis in regard to the Court of Appeal's determination in Sydney City Council v INCE & Anor (1989) 1 NSWLR 690 at 698 in following the line of authority of Doudie. 28 The appellant's primary submission is that the evidence of stressors establishes a significant condition of PTSD which was operative to make Mr Murray incapable of performing his duties as a Sergeant as at 4 March 1999. 29 In the alternative, the appellant respectfully submits that a finding on the balance of probabilities that Mr Murray was incapacitated as at that date from specified infirmities of body and mind, including the existence of PTSD, which was an operative component causing Mr Murray to be incapable of discharging his duties is appropriate on the evidence before the Court. 30 As to that alternative, the appellant sought that the following proposed finding be made: The weight of the evidence supports and makes it more probable than not that in addition to the specified infirmities of Adjustment Disorder, Depression and Alcohol Abuse "Mr Murray was as at 4 March 1999 suffering from the infirmity of the mind of Post Traumatic Stress Disorder". 31 The appellant respectfully submits that on the basis of the evidence before the Court the certificate within the meaning of s 8(1) and s 10B(1) of the Police Regulation (Superannuation) Act 1906 should be amended to specify that Mr Murray was incapable of discharging the duties of his office for the Police Service due to Post Traumatic Stress Disorder, Adjustment Disorder, Depression and Alcohol Abuse. 32 The "duties of the member's office" referred to in s 8(1) of the PR Act were those in which the appellant was employed at the time he went off sick on 10 October 1997. 33 Attempts by Mr Murray to support himself via the K-9 Protection & Training Service and any capacity for work displayed thereby is of little relevance to considering Mr Murray's capability of performing his duties as a Sergeant of Police in command of a unit of up to fourteen men with direction, control and responsibility plus being a member of the State's Police Service with ethical responsibilities and legal duties far distant from tasks such as protecting building sites, BMX tracks or building block walls, which tasks were undertaken by Mr Murray in his K-9 Protection business. 34 The duties of a Sergeant in the New South Wales Police Service and the occasional operator of the K-9 Security Service are so significantly different that even had the security business succeeded, Mr Murray would still be incapable of performing the duties of his office at the time of discharge. 35 Mr Murray's evidence was that the business was necessary to "keep his head above water". Further, the business failed to thrive and eventually the business name was de-registered in 2001 supporting the proposition that Mr Murray was incapable of successfully conducting the K-9 Protection and Training Service business. The period of employment relates to and evidences Mr Murray's attempts to "have a go" from 17 May 1999 until 9 July 2000, ie. after the relevant date. Submissions - Respondent 36 During the course of proceedings it was acknowledged by the respondent that it is beyond argument, that the appellant has been medically discharged and has been found incapable of performing his normal duties, as a consequence of those three conditions which are in the certificate, the alcohol, the adjustment disorder and depression. 37 It is the respondent's case that even if it were accepted that the appellant was experiencing symptoms consistent with a diagnosis of Post Traumatic Stress Disorder, then the effects of that constellation of symptoms was minimal. 38 Consequently, if Post Traumatic Stress Disorder was a correct diagnosis then the appellant was not incapable of discharging the duties of the office of a police officer from that condition alone as required by the statute. 39 The credit of the appellant is seriously in issue. The response of the appellant when asked in cross-examination, why it would be that he had never told the psychiatrists about his company or his work his response was that none of the psychiatrists had asked him. That response given many times in cross-examination, provides a valuable insight into the appellant. The only information provided to the doctors was information that he thought would assist in maintaining an incapacity due to Post Traumatic Stress Disorder. 40 The importance of this issue is not the subjective assessment by the appellant of his capacity to work. The issue is the deception in circumstances where the court is asked to believe the appellant as to the extent of his alleged disability. 41 It is not submitted that all of the tasks completed by the appellant in his capacity as an armed security guard were consistent with all of the tasks of the office of a police officer. What is at issue is whether the court would accept that the appellant was capable of no more than the tasks of a security guard. His case is that he was incapable. However, the court would have considerable reservation in accepting the veracity of the appellant. 42 The decision as to whether Post Traumatic Stress Disorder, as a specific infirmity, has rendered the appellant incapable of discharging his duties is governed by statute, not by common law. 43 The decision in Daykin is wrong. Her Honour Justice Kavanagh did not attempt any statutory analysis other than to look at the meaning of "infirmity". It is submitted that that focus overlooked or misunderstood that the focus had to be upon the meaning of "a specified infirmity". 44 The line of authority represented by Doudie and Ince are useful to the extent that it is possible to contemplate two separate partial incapacities. However, the relevant legislation does not contemplate a member to be incapable of discharging the duties of his office from the operation of two certified partial incapacities. Accordingly, from the perspective of statutory interpretation, common law is of no assistance. 45 The respondent submits that, on balance, the court could not be satisfied that the veracity of the appellant is such that his account of his incapacities could be accepted so as to conclude that the certificate should be amended. Submissions - Appellant - Reply 46 In relation to the issue of credit, the appellant stressed that at no stage did the respondent request particulars from the appellant as to his business or his work. At the last available opportunity the respondent issued a subpoena directly to the appellant and failed to serve same upon the appellant's legal practitioners. 47 Quite contrary to the allegation of deception the contemporaneous evidence of Mr Murray's reports to the doctors manifestly illustrated the lack of significance which the K-9 Security work held for Mr Murray. Further support for this proposition is to be found in the level of earnings over the period of the business' operation and the appellant's input. 48 As to incapability, the appellant maintains the position taken during the course of the trial that the respondent is estopped from denying that Mr Murray was incapable within the meaning of the Act of performing his duties in light of the Certificate which is a part of Exhibit 2. 49 The appellant submits that the decision of Kavanagh J in Daykin is a reasoned analysis applicable to the circumstances of multiple infirmities and that the respondent has the practice of issuing Certificates with more than one source of incapacity. 50 Further, the appellant refers to s 8 of the Interpretation Act 1987 in regard to the expression in singular form including a reference to the word in plural form. Legislation 51 This appeal was brought in accordance with s 88 of the Superannuation Administration Act 1996 (the SA Act): 88 Appeals (1) A person aggrieved by the determination of STC under section 67 (relating to determination of disputes) may appeal against the determination to the Industrial Relations Commission in Court Session (the Commission ). (2) The appeal must be made within 6 months after the appellant is notified of the determination of STC or within such further period as the Commission allows. (3) In dealing with the appeal, the Commission may exercise any function that could have been exercised by STC in making the determination the subject of the appeal. (4) In dealing with the appeal, the Commission is to have regard to this Act and any other relevant provisions regulating the superannuation scheme concerned and such other matters as it considers to be relevant. (5) In dealing with the appeal, the Commission is not bound by the rules of evidence and may inform itself in any manner it thinks fit. (6) The final determination made by the Commission on the appeal is to be given effect to as if it were a determination of STC. 52 The relevant sections of the Police Regulation (Superannuation) Act 1906 are set out below: 8 Determination of members medically unfit (1) A superannuation allowance or gratuity shall not be granted or paid under section 7 or 14 to a member of the police force who: (a) is discharged after the commencement of the Police Regulation (Superannuation and Appeals) Amendment Act 1973, and (b) at the time of the member's discharge is under the age of sixty years, unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from infirmity of body or mind, of discharging the duties of the member's office. (2) STC may certify that a member of the police force is incapable of discharging the duties of the member's office only if the member is incapable of discharging the duties of the office in the police force in which the member is then employed and also any other office in the police force: (a) which is available to the member, (b) which is not lower in rank than the office in which the member is then employed, and (c) in which it would be reasonable to expect the member to be employed. 10B Medical examination of disabled member and determination of whether hurt on duty (1) An annual superannuation allowance shall not be granted under section 10 a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of discharging the duties of the member's office. (2) An annual superannuation allowance shall not be granted under section 10 to a former member of the police force who resigned or retired unless: (a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, (a1) where the regulations so require, the notification was in or to the effect of the prescribed form, and (b) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member would have been incapable, from that infirmity of body or mind, of discharging the duties of the member's office at the time of the member's resignation or retirement. (2A) STC may certify that a member of the police force is incapable of discharging the duties of the member's office only if the member is incapable of discharging the duties of the office in the police force in which the member is then employed and also any other office in the police force: (a) which is available to the member, (b) which is not lower in rank than the office in which the member is then employed, and (c) in which it would be reasonable to expect the member to be employed. (2B) STC may certify that a former member of the police force would have been incapable of discharging the duties of the member's office if the member would have been incapable of discharging the duties of the office in the police force in which the member was employed at the time of the member's resignation or retirement and also any other office in the police force: (a) which was available to the member at that time, (b) which was not lower in rank than the office in which the member was then employed, and (c) in which it would have been reasonable to expect the member to have been employed. … (3) Where a member or former member of the police force is duly certified under subsection (1) or (2), the Commissioner of Police shall: (a) decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be, and the date or dates on which the member or former member was hurt on duty, and (b) give the member or former member written notification of the decision. Interpretation 53 The respondent contended that for the purposes of statutory interpretation the Police Regulation (Superannuation) Act 1906 is a private act in the sense that it is not applicable to the public at large. A private act may be interpreted by either a literal approach or a purpose approach. With the literal approach general words will be given their plain and ordinary meaning unless the contrary is shown (Cody v J H Nelson Pty Limited 74 CLR 629 647). 54 The purpose approach in statutory interpretation is applied most commonly in those cases where an interpretation would render part of legislation meaningless while another approach (having regard to what is to be construed as the purpose) may give it meaning. 55 In this case there may be no basis for interpreting the Police Regulation (Superannuation) Act 1906 by using the purpose approach (although even if one did it would not yield a different result). There is no ambiguity in Section 10B(1) or Section 10B(2) or Section 10(1)(a) and (b) as to the definition of a "disabled member of the police force". 56 Accordingly, using the literal method of construing a statute, the words are to be interpreted in accordance with their ordinary and current meaning. 57 In reply, the appellant submitted, that the correct approach to the interpretation of the relevant legislation is that principles including the attainment of the object of the legislation, i.e. a purposive approach, is appropriate in conjunction with the plain meaning of the statute. There is no ambiguity in regard to the words of the statute and in addition the legislation is beneficial in nature and should be interpreted liberally. 58 In regard to remedial or beneficial legislation the appellant submits that "meticulous literalism is to be avoided": McDermott v Owners of S.S. Tinteretto [1911] AC 35 at 46 referred to with approval by the Court of Appeal in Director General of the Attorney General's Department v District Court of NSW & Stark (1993) 32 NSWLR 409 at 421. 59 Further explanation was given by Mr Matthews, solicitor, instructing Mr Biggins as to this issue: MATTHEWS: The issue goes to the definition of "disabled member of the Police Force" in s 10 that counsel took you to previously. That is probably on page 38. As you can see from this case, just to take an example, there are three conditions specified in the certificate currently - adjustment disorder and two others. As a matter of procedure under the Act, s 10B(iii) then requires that certificate of incapacity to go to the Commissioner of Police. At the top of page 42, "Where a member … hurt on duty," et cetera. In the case where the Commission has three conditions or three infirmities, to use that terminology, in the certificate he may and sometimes does say that one of those is "hurt on duty" and one or two aren't, or a combination of them. When that happens and his decision comes back to the Superannuation Board, as long as he is certified with one of those conditions or infirmities as "hurt on duty", the member is then paid the pension under s 10. The only rationale for that is that that condition or infirmity, by itself without any contribution from the others, is sufficient to render the member incapable of performing the duties of his office. If it was so that those infirmities could be dealt with as a condition - in other words incrementally and taken together - they made him infirm - then when the decision came back from the Police Commissioner to say that one of these was "hurt on duty" and the others were not, the Board would have to enter into another investigation or consideration as to whether that one by itself made in infirm or only a combination of the other which are not "hurt on duty". There is no sanction in the legislation for that further investigation to take place so the only justification for the Board putting those three conditions in the certificate in the first place must be that all of them taken individually - each one renders the person incapable and therefore the difficulty we have with the Daken decision of her Honour is to say that you can add the things together incrementally and have a situation where each one by itself might not make a person incapable but when taken together they do because when the Commissioner separates them out and decides only one of these conditions if "hurt on duty" the Board pays the pension on the basis that that one condition in terms of the definition - it must be that the person was, under the definition of "disabled" - incapable from a specified infirmity of body or mind and if you go to the bottom, "that infirmity being determined pursuant to s 10B(iii) … caused by a member being hurt on duty" then the person gets the pension. We have a difficulty with the argument that if the post traumatic stress disorder only made some contribution towards this member's infirmity, that is enough to permit the certificate. 60 In reply to the above statement, Mr Walsh said: There are just three short matters. The Act does not talk of partial incapacity or total incapacity. It talks of "incapable, incapability". That is the test. The primary submission of the appellant is that the post traumatic stress disorder rendered him incapable of discharging the duties - all the duties of a sergeant of police, including the list in exhibit 17 and also in evidence. In answer to the issues raised by Mr Matthews, the appellant looks to the evidence of Dr Canaris and the stem analogy leading to the other disorders. I hasten to say I do not wish to look down the track at what happens in regard to issues of nexus or causation in another place in the Compensation Court in regard to whether or not the specified infirmities were caused "hurt on duty" or were caused not "hurt on duty". As presently specified, it is stated that they were not caused by the member being "hurt on duty". On the basis of the infirmities alone there is no claim for a pension. The importance of the post traumatic stress disorder, when and if this matter goes on further, is that if Dr Canaris' opinion is accepted that the post traumatic stress disorder led to the other specified infirmities, there may be an argument of causation and nexus in the Compensation Court as to the entitlement. The third point respectfully picks up the Daken judgment at para 59 where her Honour refers to the decision in Harding , a decision of your Honour and your brother judges. Paragraphs 60 to 64 examine the concept of "incapable of discharging duties of office" and examines the same submission put in that case that your Honour has heard from the respondent today. I cannot rise to the eloquence of her Honour and what her Honour says in those paragraphs but I adopt those remarks in support of Mr Murray's application. 61 The respondent contends that even if PTSD was the correct diagnosis, then the appellant was not incapable of discharging the duties of the office of a police officer from that condition alone as required by the statute. (My emphasis) 62 I do not intend to spend too much time on this issue of multiple infirmities, but that is not because I do not accept that the issue is important. It has recently been considered in detail by Kavanagh J in Daykin at [62]-[75] and by Hungerford J in Woodlands v SAS Trustee Corporation (Woodlands) [2001] NSWIRComm 232 at [24]-[42]. In that latter case, Hungerford J, having considered the reasoning and conclusion of Kavanagh J in Daykin, adopted and followed her approach. (I note in respect of Daykin that it is under appeal, and that Woodlands was handed down after decision in this case was reserved.) 63 In this case, the Police Superannuation Advisory Committee (PSAC) decided that, in terms of s 8(1) and s 10B(1) of the PRS Act, the appellant was suffering the infirmities of Adjustment Disorder, Depression and Alcohol Abuse. The PSAC had thus rejected the appellant's claim in his application for a medical discharge on 23 April 1998 that he was suffering from post traumatic stress disorder. 64 I do not intend to reinvent the wheel, but set out extracts from Daykin and Woodlands as to principles that guide the approach I adopt in my consideration of this case: The structure of the Police Regulation (Superannuation) Act 1906 is important. After the member is found, at the relevant time, because of an infirmity of mind or body, incapable of discharging the duties of his office there are a number of further steps to be taken under the Act before certification. It must be determined that the member is incapable of performing any other office not lower in rank which is available to the member and in which it would be reasonable to expect the member to be employed, before a certificate issues. ( Daykin , par 64) … Their Lordships upheld Thompson's Case as reflecting the proper law. Doudie has been consistently followed in New South Wales. As was said in Sydney City Council v INCE & Anor [(1989) 16 NSWLR 690 at 698] per Clarke JA: The principle for which D oudie stands has been continuously applied in this State: S haw v Darling Island Stevedoring & Lighterage Co Ltd [1957] WCR 134; Beaton v Yips & Co [1966] WCR 78; Gatti v Penfolds Wines Pty Ltd [1969] WCR 197 and Holmes v Civil & Civic Pty Ltd (1970) 72 SR (NSW) 583; 92 WN (NSW) 1021. In the latter case the Full Court of the Supreme Court applied Doudie in holding that it was open to the tribunal of fact to make separate awards of compensation in respect of two separate partial incapacities. ( Daykin , par 70) … … On the other hand, a certificate under s 10B relates to the medical qualifying condition for the payment of an annual superannuation allowance under s 10 to a police officer whose discharge was caused by being hurt on duty; … ( Woodlands , par 25) … At the time a certificate is being considered by the respondent for issue to a police officer, the question whether the officer was hurt on duty does not arise unless and until it be decided to issue the certificate concerned on the ground that the officer was incapable, from a specified infirmity of body or mind, of discharging the duties required by the office. (Woodlands, par 26) … … It is necessary first to identify precisely the qualifying condition for the issue of a certificate under s 10B(1). That question has, of course, arisen from time-to-time in the various cases but, apart from Daykin, I am unaware of any authority where it has been considered in the context of multiple infirmities. Nevertheless, a Full Bench of the Court in Boland v SAS Trustee Corporation (1999) 97 IR 127 extensively reviewed the section … (Woodlands, par 34) … Although the present matter did not involve such issues, it is instructive to note the comment of the majority (Marks and Schmidt JJ) in Boland (97 IR at pp 157, 161), as follows: … … The word "incapable", … in the context of the discharging of the member's duties of office, is synonymous with incapacity to discharge such duties in the sense of being unable to carry out the duties or unable to attempt to do so. … it follows that a causal nexus between the incapability and the infirmity of body or mind must be established. ( Woodlands , par 34) … Applying those comments, [by Hungerford J in Boland (dissenting) at 97 IR at 136] it seems to me plain that the essential condition to be satisfied under s 10B(1), in order for a relevant certificate to be issued, is that the police officer must be incapable of discharging the duties of office in the police force and where such incapability is caused by the infirmity concerned. The statutory requirement in s 10B(1) to that effect was analysed by Peterson J in Wooden v State Authorities Superannuation Trustee Corporation (unreported, IRC97/829, 28 July 1998) in this way (at p 20): There are … three relevant elements in the statutory phrase, the first being an incapability, the second an infirmity of mind (or body, as the case may be), and thirdly a connection between the infirmity of mind and the inability to work. That is to say that an infirmity of mind which does not produce an incapacity to work means that the definition or test cannot be satisfied. ( Woodlands , par 36) … … In Adams v State Authorities Superannuation Board (unreported, 90/551, 5 December 1991) Cullen J attended to the use of the word "infirmity" in s 10B(1) and said (at pp 15-16): … In the context of Sections 10 & 16 of the Police Regulation (Superannuation) Act 1906 (NSW) in my opinion, the word "infirmity" refers to a physical or mental condition which prevents a member of the Police Force, for the foreseeable future, from discharging the duties of a police officer. ( Woodlands, par 37) Whilst those above authorities were concerned with a specified infirmity as distinct from multiple infirmities, I have no doubt that s 10B(1) in referring to "a specified infirmity" in the singular would comprehend multiple infirmities: see Interpretation Act 1987, s 8(b). Mr Walsh's submission to that effect was not challenged by Mr Ower . In the result, I accept Mr Ower's submission that any infirmity or infirmities may properly be specified in a certificate, provided that the police officer concerned by reason of the specified infirmity or infirmities was incapable of discharging the duties of office; if a particular infirmity or infirmities do not make the officer so incapable then it is not open under the section to include it or them in a certificate. In other words, it is to be emphasised for present purposes, if an officer has the benefit of an existing certificate with a specified infirmity or infirmities then it is not open to add another infirmity unless that other infirmity itself was causally connected to the incapability to perform duties. ( Woodlands , par 38) The view I have thus expressed as to the construction of s 10B(1) requires further explanation in light of the concession made by Mr Ower that "partial is sufficient", that is, a specified partial infirmity may be included in a certificate where multiple infirmities, as here, exist even though one of the infirmities so specified may itself be insufficient to make a police officer incapable in a total or whole sense of discharging the duties of office. … ( Woodlands, par 39) 65 I respectfully adopt and apply the reasoning of Kavanagh J in Daykin and of Hungerford J in Woodlands. On that basis I reject the contention by the respondent that the PRS Act requires that the appellant be incapable of discharging the duties of a police officer from one condition alone. Evidence - Work Related Incidents 66 There were two documents tendered in relation to the work related incidents to support the applicant's claim to be suffering from post traumatic stress disorder. The second document listed 37 of the 38 incidents contained in the first document, and did not include the paragraphs prior to the heading "1981-1984 etc" of the first document. It was on that second document that the appellant was examined, but he was taken to the thirty eighth incident. 67 The appellant was taken through each of the incidents in chief and was subject to cross-examination on them. I reproduce the oral evidence only in relation to some of them. 68 What is set out below is, in the main, an otherwise unedited combination of the two documents: TRAUMATIC EXPERIENCES FACED BY SERGEANT JOHN MURRAY NSW POLICE FORCE Set out as follows are incidents which I have attended during my service as a member of the NSW Police Service or incidents which have had a direct impact upon myself. There are many more hundreds if not thousands of incidents which I have attended, such as violent domestics, motor vehicle accidents with serious injury, large brawls, deceased persons and searching for violent offenders, how ever at the time of compiling this report many of these incidents did not come to mind. For the vast majority of my service I have operated as a single unit, such as Highway Patrol duties as a solo cyclist and Police Dog Handler. 1963, DEATH OF MY FATHER In 1963 my father who was deployed as a NSW Police cyclist was struck head on by another motor vehicle, as a result he suffered massive injuries, which resulted in his death several days later, near his 30th birthday and at a time when I was only 10 years old. One of the most vivid memories I have of my father is that of him lying on his death bed in hospital bandaged in agony and with tubes connected to his body. 1981 - 1984 General duties Bankstown 1 Fatal accident Stacey Street, Bankstown attended in first week of employment in the Police Force - deceased was a Police Officer on his way home, massive head injuries after colliding with telegraph pole. 2 Fatal vehicle accident Chapel road, Bankstown two vehicles collided head on. As to that accident he said: Q. Please, as best you can and I realise it is difficult, the sickness that you felt, how long did that last? A. I still have it. Q. Do you ever think about these incidents? A. Regular, probably not a day goes by. 3 Double fatal Henry Lawson Drive, Georges Hall, one deceased dismembered, with his arm 100 metres from his vehicle. The appellant had to retrieve that bloody torn arm still clad in torn shirt pieces and take it back to the car. 4 Serious domestic Condell Park offender while arresting offender he bit me on the [left] thumb which still grows distorted, refused to let go even after being repeatedly punched it was later ascertained he was hepatitis C. 5 Suicide Church Street, Yagoona, male person shot himself. 6 Fatal vehicle accident Wilbur Street, Greenacre, deceased decapitated. Q. The sixth item, fatal vehicle accident Wilbur St, Greenacre deceased decapitated. Would you tell her Honour what you recall about that? A. I was on me way back home from the morgue, I was going back to the station at Bankstown from the morgue from doing a deceased and there was a call for an accident in Wilbur St so I responded. When I got there a young bloke had driven into the back of a truck and the table top of the truck had taken the top of his head right off and there were bits and pieces of him everywhere. So I ended up having to do that accident and the full particulars with it as well and then later that evening I had to go and interview his parents and they wouldn't believe he was deceased and I couldn't convince the mother that the son had died in that accident. 7 Murder Hume Hotel, deceased bled to death during brawl which was still continuing upon my arrival. In relation to incident no 7 (the brawl at the Hume Hotel, during which the victim bled to death while the other participants continued to sing "Happy Birthday") Mr Murray said in chief: I was working with a policewoman at the time and the bloke I had hold of I had to let him go because I was concerned about her. By that time other police had turned up but at this stage there was only two of us there. Q. When that was going on you felt pretty vulnerable? A. Of course, extremely. Q. Did you reflect upon that afterwards? A. Yes, I still have dreams. Q. How often do you dream about that incident, for example? A. I couldn't put a time frame on it because they are always chopping and changing. If I told you once every month it could be once every six weeks. I don't know it is just different incidents. Q. That was a fair while ago? A. A long time ago. 8 Suicide Georges River Reserve, male person shot himself in the head. 9 Suicide Georges Hall, deceased in vehicle for some considerable length of time. 10 Deceased Punchbowl, elderly male located in bedroom floor, flesh crawling with maggots and body juices surround him. I was directed to roll the body over to ascertain if there was any foul play evident. The appellant did not have gloves on: "we weren't issued with those things at that time". 11 Fatal vehicle accident Chullora, vehicle engulfed in flame, male person trapped inside screaming as he burnt to death. Mr Murray's evidence as to incident no 11 was: Q. Incident number 11, a fatal vehicle accident at Chullora, vehicle engulfed in flames, male person trapped inside screaming as he burnt to death? A. That's correct. Q. You were at the scene when it was burning? A. That's correct. Q. Did you see the male person trapped inside? A. I could see him and hear him. Q. What did you hear? A. I could hear his screaming. Q. How did you feel? A. Scared, hopeless. That's one of the bad nightmares. Q. It comes back? A. Regular. 12 Enfield railway shunter pinned between buffers of a goods train, he was talking sensibly then when the carriages were released he died immediately from the massive injuries he sustained. 13 Deceased Bankstown, male in toilet blocks rigormortis set in, he was jammed with his buttocks between the toilet bowl and his head against the door, I had to climb over the top of the cubicle and physically remove the deceased in order to open the door. 14 Suicide Colchein Street, Yagoona, male person shot himself through the head with a high powered rifle. 1984-1989, HIGHWAY PATROL DUTIES 15 Involved in the Bathurst Race riots. 16 Knocked from police motor cycle at Grafton when forced off the road and into a parked vehicle. 17 I was involved in escorting Queen Elizabeth from Sydney to the Richmond Airport Base, I stopped the traffic at an intersection at Baulkham Hills to allow the motorcade to pass, as a result of the traffic being stopped a small truck lost control mounted the kerb and collided with a young girl who at the time was standing on the foot path some 20 feet from my location, I watched as the truck collided with her causing her head to explode. The circumstances of incident no 17 were expanded in chief: Q. Incident number 17 you were performing point duty at Baulkham Hills and a truck collided with a young female pedestrian causing her head to explode. How close were you and what were you doing? A. I was escorting Queen Elizabeth at the time. I was one of the out-riders, there were three of us, and we had to ride out from intersection to intersection at high speed and so we kept the motorcades running. I had to pull up at the intersection and stop all the traffic so that a motorcade had clear passage through and I remember seeing this truck coming towards us along Windsor Road and it mounted the footpath and drove on the footpath for a short distance and there was a young woman that had run out to look at the Queen or to look at whatever the commotion was and this truck has just hit her head on. Q. You were watching that woman at that stage? A. I was because I was watching the truck. Q. What happened? A. Her head just virtually exploded, she hit the ground in front of the truck and the truck kept going. Q. How did you feel? A. That it was my fault. Q. What was the basis for that? A. Because I stopped the traffic. Q. Do you think about that girl? A. Yes. Q. What are your thoughts? A. That was my fault because I stopped the truck. Q. Did you go and assist that girl? A. I had to keep the motorcade going and the truck went across the road into a service station, done a turn there and then heading back towards the motorcade and I still think I am going to have to take off and ram the truck and it hit the embankment and stopped. I was trying to call out what happened on the radio while keeping a position to keep the motorcade going. Q. You did a lot of escort work? A. Yes. … Q. What was your role in regard to escort work if an accident arose? A. My priority was the principal of the escort. I had to ensure they were not stopped. … Q. The motorcade was more important than you? A. Definitely. 18 Thrown from police motor cycle at high speed on the F5 Freeway, when cleared by Police Medical Officer, Doctor Vane, his comment was "It's a wonder your still alive". Mr Murray gave further evidence as to his reaction to incident no 18: Q. You lost a lot of skin? A. I did. Q. What about in your mind, how did you feel about your job at that stage? A. I thought that I was going to die. I remember standing up on my feet three times and rolling back over and I thought I would die but I didn't. Q. When the accident occurred, in the days and weeks after that, what were you thinking? A. I am just too vulnerable and I'm not here for long and I didn't want to know anybody or anything. Q. Did you feel you were performing your duties fully? A. I didn't. I got to the same stage as I was doing. Q. This is less than five years after you entered the force? A. Yes. Q. Did you talk to anybody else about it at that stage? A. No. Q. Why was that? A. I kept everything bottled up, I didn't speak to anybody. Q. How did you feel yourself about discharging your duties in 1985? A. Kept doing it because I loved the police force, it was my life. Q. What, if anything, were you thinking as to your ability to discharge your duties? A. I don't think I had any thought in regard to that, I just kept doing everything. Q. There was not much of a culture of talking and sharing with other officers? A. There was none. 19 Penrith, whilst attempting to stop an offending vehicle whilst on a police motor cycle as I rode adjacent to the drivers window, the driver pointed a [.22] rifle out of the window directly at me. Incident no 19 also involved riding his police motor cycle: Q. Incident number 19, you were at Penrith and whilst attempting to stop an offending vehicle whilst on a police motor cycle, as you rode adjacent to the driver's window the driver pointed a rifle out of the window directly at you? A. That's correct. Q. What sort of speed were you travelling? A. It was fairly slow at that stage. Q. What did you think when you saw the rifle coming out? A. I thought that's it, I'm gone. I pulled the brakes hard on the bike and came back in behind him and he pulled over and I was expecting him to get out the rifle but he never and I arrested him and he was also PCA at the time. Q. You were on which side? A. The driver's side. Q. How far away was the rifle from you? A. Three feet. … Q. What did you think immediately? A. I'm dead. Q. How did you feel after that? A. Shakey. Q. Do you think about it at all? A. Yes, I have nightmares but the nightmares being shot and coming off the bike at the same time. Q. This was after you came off your bike on the F5 Freeway? A. Yes. Q. How did you feel about the bike after that? A. I kept going. Q. How did you feel in yourself? A. I had no confidence. Q. No confidence? A. No. Q. You could not ride flat out anymore? A. No. 20 Fatal accident involving semi trailer and car, Putty Road, Colo. 21 Hit and run fatal accident, Batemans Bay. 22 Knocked from police motor cycle at Windsor when female driver changed lanes. That further cycle incident (no 22) resulted in a neck injury which he still has. What went through his mind at the time was "Dead, again". 23 Attend riots Everleigh Street, Redfern, sustained injuries from missiles, mostly house bricks being thrown. 24 Engadine, pursuit stolen vehicle, wrestled with offender who at the time spat in my face, Hepatitis C carrier. Asked about incident no 24, and whether he was having dreams at this stage, Mr Murray said "I have dreams every night". 25 Police motor cycle accident Georges Hall, vehicle turned right as I was overtaking. 26 Fatal accident Revesby, young child run over by semi trailer, pinned between rear bogie axles. 27 Suicide Yagoona Railway Station. 28 Double fatal William Street, Yagoona, motor cycle collided with tree. 1989, POLICE DOG SQUAD 29 Police vehicle set alight about three feet from bedroom window in the front of my residence in the early hours of the morning at the time I awoke thinking that the house was on fire, it was so traumatic on my young son at the time that he was unable to sleep in his own room for several months. 30 Fatal vehicle accident, hit and run, Auburn. 31 Riot, Tempe, struck by missiles consisting of bottles. 32 Whilst being winched into Polair in mountainous bushland the helicopter started running low on fuel, I was left hanging by the winch rope whilst the helicopter returned to base camp. Incident no 32 actually occurred prior to Mr Murray's involvement in the Dog Squad at a time when Mr Murray was in the Highway Patrol Response Group. He was one of a group of police who had had to be winched in and out of drug plantations located in mountainous terrain and otherwise inaccessible areas. In this particular incident, the crop having been cut down, Mr Murray had to poison the ground before being the last man to be winched out. What then occurred is described in the following extracts from transcript: Q. What was the crop, sir? A. Marijuana, cannabis. So after I had finished poisoning it, the whole area, they started to winch me up. We had already been told if you are ever winched and something is going to happen you will be the first to go, they will cut off so they don't lose the helicopter and other men. You accept that but they started winching me up and all of a sudden took off through the valleys to where they had had a base camp set up. I later found out it was because they were running short on fuel and couldn't hover. While they are hovering they are using up the majority of the fuel. Once they have got me up enough, they have taken off through the valleys. All I can remember is my feet hitting the tops of gum trees and absolutely petrified to what was going on. Q. How far away was the helicopter from you? A. 15, 20 foot. … Q. About the height of this room. Were you stable? A. No, I was swinging around. Q. Spinning? A. Spinning, yes. Q. How long did that last? A. It seemed like forever but I suppose it was five minutes. Q. And what were you thinking as your feet brushed the trees? A. I thought I was going die again. I could also see the observer near the winch cable at the top and I just kept thinking he is going to just cut me off any time. … Q. You thought back to what you had been told you were expendable? A. Yes. If there is any problem I would be the first to go, that's correct. If there is any problem, you are gone. … Q. What happened after the five minutes? A. We had got down near the base, then they winched me back into the helicopter. We landed and refuelled. 33 I have had a monatarff [sic] cocktail bomb thrown at my residence. 34 Lakemba, located male person decamped from a armed holdup, at the time the offender still in possession of replica pistol. 35 Murder, young girl, Lake Gilawarrna. 36 Drowning, Griffith, eleven year old boy and his uncle, assist in removal of bodies from lake. 37 Leichhardt, whilst searching for armed offenders along canal, what I believe to be shots were fired in my direction. 38 Pursuit of offender Bass Hill, at the time the offender was armed with high powered rifles, I pulled the offender from a moving vehicle and a struggle ensued where I was repeatedly punched by the offender until he was subdued. 69 The submission by the respondent that no discomfort was shown by the appellant at any stage in cross-examination is not, on my observation of the appellant, correct. Certainly an adjournment was not required as earlier it had been during examination in chief in relation to incident no 26, (the child killed and pinned between the rear bogie axles), but less overt distress was obvious to me, not only while the appellant was in the witness box, but also while he sat in court behind his legal representatives. 70 The effects on Mr Murray as at 1989 of various incidents were described: Q. By this stage, towards 1989, you had been exposed to at least twenty eight incidents in the course of your employment? A. It would be a lot more. Q. At that stage in 1989 were you conscious of any effect they had upon you? A. Yes, I wasn't sleeping and I was having nightmares. Q. When did you last get a good night's sleep? A. I can't remember, too long to remember. Q. Would it be one year ago? A. No. Q. Two years ago? A. No, it would be more than ten years ago. Q. More than ten years ago? A. Yes. Q. What happens when you go to bed? A. Mostly I have nightmares and I wake up and I go and smoke cigarettes and drink coffee. Q. In the last ten years has your sleeping pattern changed at all? A. It has got worse. Q. Ten years ago how much sleep would you get in a night? A. I don't know, it would always be broken, I might get five or six hours but broken sleep. Q. How would you wake up in the morning? A. A lot of the time I just felt lethargic. Q. Would you just like in bed? A. No, I would never stay in bed, always get out. Q. Back in 1989 what, if any, effect did that sleep pattern have upon your ability to discharge the duties of your office? A. I really had no - I put everything into it. Q. You gave evidence you could not ride flat out? A. No. Q. What else is there that you could not do that you could do when you joined in 1981? A. I definitely didn't have the confidence of dealing with the people that I did. I could see myself becoming a bit more aggressive and didn't have the patience. Q. What thoughts did you have about your own safety and well being? A. Everyone was an enemy and they were going to get me. Q. Around about that time you sought a transfer or you were given a transfer? A. That's correct. Q. Would you tell us what occurred? A. In 1989 I had enough of the Highway Patrol and motor bikes and went and applied for the dog squad and was accepted there and went through training. Q. Why was that? A. I have always loved dogs and I could still do my job and have a dog at the same time. Q. What about your current duties before going to the dog squad. How did you feel about your ability on highway patrol? A. I could no longer ride the bikes like I was. I was always working one out nearly the entirety of my shift. At least with the dog I was getting back up. … Q. Insofar as the discharge of your duties on the highway patrol and on the motor cycle what was your opinion of your capacity to do that in 1989? A. I was starting to get a nick name and I think I had very little compassion or whatever towards anyone. Q. What was that nick name? A. Murray the Mongrel. Q. You were driving yourself, weren't you, forcing yourself to do your job? A. I did. Consideration - Work Related Incidents 71 The appellant was taken by his counsel through some thirty eight incidents advanced to support the appellant's claim, and was cross examined in relation to them. I have set his oral evidence in relation to some of those incidents, but his recollection of almost all incidents included being scared and sick in response to his contact with dead and injured persons in accidents, the retrieval of body parts and the knowledge from attendance at violent incidents that it was so easy for someone to hurt or injure him. 72 When he had sat down to recall the incidents set out, they had not been hard to recall - "it flowed out". The preparation of the document was so upsetting "I got back on the booze halfway through it". 73 A constant theme in the appellant's evidence was that later incidents in which he was involved would bring to the fore of his mind his reactions to similar previous incidents, for instance, incidents nos 19, 22 and 25 brought back the feelings of vulnerability he felt after being thrown from his police motor cycle at high speed (incident no 18), compounded in incident no 19 by the fact that the driver of a car pointed a rifle at him from three feet away. 74 When he was caught up with the Dog Squad in riots at Tempe (incident no 31), all the other riots he had been involved in came back, including Bathurst (incident no 15) and Everleigh Street Redfern (incident no 23). 75 The appellant's evidence as to his abilities to perform his duties as at March 1999 was that he had become very depressed, he was breaking down, sleeping only one or two hours, and that was broken by nightmares about the incidents set out earlier. He woke up in cold sweats and nervous. His level of fitness had been gradually going downhill over the period 1981 until 1999. 76 In cross-examination he said that sometimes those dreams "were there without being asleep. I could be talking to you now and see flash backs of them". Pressed as to why he had not told Dr Roberts about the things troubling him, his evidence was: Q. When he asked you what it was that was troubling you, why didn't you tell him? A. Probably because, just trying to shield it up, I don't know. That didn't come out until I had spent quite a considerable time in St John of God Hospital. Q. But the evidence you gave this morning was that this is what you had been experiencing, unless I misunderstood the evidence, on a day to day basis for years? A. True and l hate admitting it now that I tried to keep it in myself. I should have let it go maybe, I don't know. There was no one there to let it go to. 77 He had been asked: Q. Do you ever dream of that incident? [ie the Kempsey helicopter incident] A. Occasionally. Q. Not that often though? A. No. Q. Your dreams are more focused to what incidents? A. The blood and the, those things, the injuries. Q. Coming off your bike? A. Coming off the bike but different other ones you have already mentioned. 78 Counselling was not provided to the appellant in relation to the incidents in the eighties. He was not aware if any counselling was available. The following evidence shows how the appellant dealt with his reactions to events: Q. How were you after that [incident no 32]? A. I was nervous but I didn't show it, I just had to put on the big brave front again. Q. That was the culture, wasn't it? A. Always has been. 79 And later he gave evidence that: Q. Did you ever show your emotions when these things happened? A. No, I do now but I never did. Q. What about at night when you are in bed? A. I would have nightmares. … Q. How did you feel then [after No 24]? Did you know more about hepatitis C? A. Yes, but I kept working. Q. Were you having dreams at this stage? A. I have dreams every night. Q. If you cast your mind back to the eighties, what if any consumption of alcohol were you partaking in in the eighties? A. Social drinking. Sometimes there was drinks after I had certain incidents, where I felt like a drink. Q. Would you and your fellow officers, after those incidents, have drinks? A. Yes. Q. And would you have one drink or many drinks? A. No, more than one drink. What the usual go was, everybody would start drinking after those incidents. Q. Was that a way you and your fellow officers tried to deal with the situation? A. I think so. There was nothing else for us. Q. Did that continue in the nineties, in the Dog Squad? A. Yes, not as much because you didn't work with other officers as such, you were more on your own all the time. 80 I have no reason to doubt the evidence given by the appellant, either as to the traumatic events described or as to the reactions he said he had to them, and I accept it. Indeed, on my understanding the occurrence of the events themselves was not contested. Medical Evidence 81 Reference was made during the psychiatric evidence to the discussion of Posttraumatic Stress Disorder in the "Diagnostic and Statistical Manual of Mental Disorders", 4th ed 1994 (DSM-IV) published by the American Psychiatric Association, Washington DC. (In that Manual the term used is "Posttraumatic Stress Disorder". In evidence the term, and consequent abbreviation, most used was "Post Traumatic Stress Disorder" (PTSD). Both terms are used, as appropriate, in this judgment. On a similar basis "DSM-IV" appears as DSM-4 or DSM4.) 82 The DSM4 diagnostic criteria (at pages 427-429) for Posttraumatic Stress Disorder include: A The person has been exposed to a traumatic event in which both of the following were present: 1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate (Criterion A1); (at p 424) 2) the person's response involved intense fear, helplessness, or horror. B The traumatic event is persistently re-experienced in one (or more) of the following ways: 1) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. 2) recurrent distressing dreams of the event. 3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). 4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event 5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. C Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following: 1) efforts to avoid thoughts, feelings, or conversations associated with the trauma 2) efforts to avoid activities, places, or people that arouse recollections of the trauma 3) inability to recall an important aspect of the trauma 4) markedly diminished interest or participation in significant activities 5) feeling of detachment or estrangement from others 6) restricted range of affect (eg, unable to have loving feelings) 7) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span) D Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following: 1) difficulty falling or staying asleep 2) irritability or outbursts of anger 3) difficulty concentrating 4) hypervigilance 5) exaggerated startle response E Duration of the disturbance (symptoms in Criteria B, C, and D) is more than one month. F The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. Specify if: Acute: if duration of symptoms is less than 3 months Chronic: if duration of symptoms is 3 months or more Specify if: With Delayed Onset: if onset of symptoms is at least 6 months after the stressor 83 Dr Canaris saw the appellant twice. The oral evidence of Dr Canaris as to the diagnostic criteria to which he turned in relation to PTSD included the following statements: Q. In regard to the infirmity post traumatic stress disorder, what are the diagnostic criteria to which you turn? A. Well, first of all, post-traumatic stress disorder is a diagnosis, is a condition that has been around for generations. It has been identified under various names as far back as the American Civil War, if not earlier. In fact you can see references to it in the Viking stage and so forth, so it's not a new condition that has suddenly appeared on the scene. However, over the years we have a process of trying to define the boundaries of this condition. Now DSM4 has produced certain guidelines, and I think it has to be emphasized that these are guidelines, that's are not criteria written in stone, but they are useful guidelines. Now these are, firstly, that the person was exposed to events involving, in general, serious threats to his own physical integrity, or the physical integrity of others with - and that he responded to those events with a sense of fear, helplessness or horror. Secondly, that the individual experiences anxiety thoughts, fearful thoughts of reliving of those events. That can happen in a number of ways. That can happen, classically in flashbacks and nightmares, but could also occur, for example, by the experience of anxiety when you are in the vicinity of where such events occurred. Thirdly, you have a problem with hyper-arousal which means you are hyper-vigilant. You tend to be jumpy, irritable. You don't sleep very well. You are looking over your shoulders, as it were, all the time, and in lay parlance you are a bit paranoid. Now I say in lay parlance because that's very different from what a psychiatrist means by that parlance. Fourthly, you show what is called effective numbing, which is a sense of loss or absence of feelings, a sense of foreshortened future, a sense of life perhaps being meaningless or purposeless or that, you know, nothing good will really come in my life; and also phobic avoidance behaviour. In other words, the anxiety associated with the traumatic events causes the person to take active steps to avoid exposing themselves to situations reminiscent of the trauma. Now, most post-traumatic stress disorder sufferers will experience varying combinations of these in varying degrees of intensity at various times and a lot of those people also develop alcoholic abuse and alcohol dependency as largely a form of self medication of this disorder. Now some people say that you should add a diagnosis of alcohol dependency. Some people just leave it just as post traumatic stress disorder, you know, complicated by alcoholism. There are different ways of talking about it. A large percentage of these people also become very depressed simply because that is a very debilitating and demoralizing condition to have. Now some people again make a separate diagnosis of a depressive illness, which is a major depression, or adjustment disorder with depressed mood. Other people are happy enough to just say he is a man with post-traumatic stress disorder and depression and see the depression as part and parcel of PTSD. Q. Sir, in regard to that last issue, in your experiences as a psychiatrist, is it possible that an individual can derive PTSD from adjustment disorder, depression or alcoholism? A. Can those conditions cause them, you mean? [Objection to material being raised at this time dealt with.] Q. In essence, the question is, as an expert, is it more probable that adjustment disorder, depression and alcohol abuse arose from a condition of post-traumatic stress disorder, or the reverse? A. Which is the chicken and which is the egg, basically. Q. I would have put it that way? A. Yes, okay, I think it is substantially more likely that the adjustment disorder, depression and alcoholism are the consequences of post-traumatic stress disorder, but that, upon their emergence, they will of course aggravate the post-traumatic stress disorder further. So that's the stem condition, in my opinion, and I think I did state that, at least, implicitly in my report, is that the stem condition is the post-traumatic stress disorder. Q. And the other disorders are, using your analogy, branches from the post-traumatic stress disorder? A. Branches from, which complicate the matter further and which worsen the post-traumatic stress disorder. Q. And are you able to assist the Court as to the foundation for your opinion? A. Yes, I am looking at the chronology of the very list - first of all I am looking at two things, the chronology of this man's exposure to traumatic events. Now he has been exposed to a multiplicity of traumatic events, any single one of those events would have sufficed to precipitate a post-traumatic stress disorder, and I mean the list of the events is prodigious. Secondly, if your client history is correct, if it is accurate, he has in fact been experiencing most symptoms suggestive of a contained post-traumatic stress disorder for many many years. Now the precise number of years is not specified, but it would be clear to me from the interview that it well predated his transfer out of the Dog Squad, the physical departure from the workforce. So the post-traumatic stress disorder was certainly established but he was handling it. Subsequent events caused him no longer to handle that post-traumatic stress disorder and he fell apart and remains, as far as I can see, fallen apart. (Emphasis mine) 84 Dr Wade saw the appellant once for a period of thirty minutes on 27 July 2000. Dr Wade had also been asked to review other medical reports provided to him. 85 In his report, Dr Wade noted and commented on the reports that had been provided to him, those reports being: Dr A Michael to the employer, 10 February 1998; Treating Psychiatrist Dr J Roberts, to the employer, 25 March 1998; Treating Psychiatrist Dr S Smith, to the employer, 25 May 1998 and 4 June 1998; Police Medical Officer Dr J Pearce, 13 July 1998; Senior Co-ordinator Rehabilitation/Welfare Section Rae Doak, 17 July 1998; Occupational Physician Dr G Locke to Superannuation Administration Authority, 26 August 1998; Treating Psychiatrist Dr S Smith, to solicitors, 28 June 1999; Occupational Physician Dr A Christie, to State Super, 29 October 1999; Reporting Psychiatrist Dr R Lewin, to State Super, 20 January 2000; Reporting Psychiatrist Dr C Canaris, to lawyers, 14 March 2000; Oates & Smith, solicitors, to Police Superannuation Advisory Committee, 8 June 2000. (Not all of the reports listed above were before the Court.) 86 In relation to the appellant, Dr Wade shared the diagnosis by Dr Canaris of post traumatic stress disorder. They differed as to the stressor that could worsen the PTSD and as to the contribution of PTSD to the appellant's incapacity to work. 87 In his report dated 27 August 2000, Dr Wade expressed the following opinion: 1. Mr Murray was suffering from Post Traumatic Stress Disorder/DSM4 Posttraumatic Stress Disorder at the time of his medical retirement on 4 March 1999. 2. His DSM4 Posttraumatic Stress Disorder, of itself, would not have rendered Mr Murray incapable at that time of undertaking the duties of his office or any other office in the Police Service. Incapacity arose from the mix of emotions, attitudes and behaviours, some not warranting diagnosis (such as much of his anger at the employer), and some arising from Posttraumatic Stress Disorder, and other disorders (including a Major Depressive Episode). There is no compelling reason to believe that any inherent incapacity from Posttraumatic Stress Disorder was any significant component of incapacity after October 1997. 88 Dr Wade thought that the evidence he had heard the appellant give as to the K-9 and other work done by him, confirmed that opinion. 89 After further discussion in his report as to the DSM4 criteria for Posttraumatic Stress Disorder, Dr Wade opined that: Mr Murray had significant symptoms of a Posttraumatic Stress Disorder prior to October 1997, and I would be comfortable is [sic] making that diagnosis for some years prior to October 1997. There is abundant evidence that having that disorder was quite compatible with working very well indeed. Despite symptoms, there was no apparent incapacity for his demanding duties (the employer may have different views on this aspect) . (My emphasis) I don't think there is any scientific or medical reason to regard the emotional upheaval from the confrontation in October 1997 as constituting any part of any Posttraumatic Stress Disorder. I think statistically it is most likely to be an Adjustment Disorder and Major Depressive Episode than any onset or worsening of a Posttraumatic Stress Disorder. The symptoms of those disorders clearly overlap those of Posttraumatic Stress Disorder, but there is no compelling reason to regard those symptoms as arising from any Posttraumatic Stress Disorder. Mr Murray's reaction to the workplace conflict is commonplace and predictable; I don't think it is useful (medically) or meaningful to attribute all such reactions to Posttraumatic Stress Disorder (or other pre-existing disorder). Each situation would need to be assessed on its merits. 90 Dr Wade also said: The absence of rehabilitation effort by the employer presumably arises from certified unfitness to return to work. 91 Having commented on each of the reports supplied to him, Dr Wade concluded his report with the following "Other Comments": Can Posttraumatic Stress Disorder be worsened by an apparently unrelated stressor? Mr Murray's functioning after the confrontations in October 1997 is dramatically different from that prior to that time. There are prominent depressive features which aren't prominent components of a Posttraumatic Stress Disorder. It may be asserted that the deterioration is merely an exacerbation of a pre-existing Posttraumatic Stress Disorder, presumably an exacerbation caused by the October 1997 events. This would be a phenomenon akin to that seen in other disorders where an event worsens a pre-existing disorder (eg where a schizophrenia worsens closely following even an apparently good event). I don't think there is good support for this happening in Posttraumatic Stress Disorder unless the event is already the type responsible for Posttraumatic Stress Disorder (eg another road crash), or the event is simply an occasion for a particular Posttraumatic Stress Disorder symptom (eg exposure to something resembling the initial relevant traumas, or to a news item about a relevant trauma). Is there any evidence that Posttraumatic Stress Disorder prior to October 1997 caused any incapacity? The materials provided report some of the employer's complaints against Mr Murray, whereas Mr Murray's own account of his work performance is that of working at a very high, creative level. The complaints against him appear not to have arisen through any symptom of a Posttraumatic Stress Disorder. Of the three listed by Dr Lewin (from Mr Murray's account to Dr Lewin), the first (failing to do a computer check on his staff) could arise from Posttraumatic Stress Disorder (eg if that failure arose through "difficulty concentrating" where that "difficulty concentrating" was reasonably connected with a Posttraumatic Stress Disorder). The other two complaints listed seem quite inconsistent with any incapacity from Posttraumatic Stress Disorder acquired as a police officer. The employer may have other information supporting some incapacity from Posttraumatic Stress Disorder. 92 Dr Canaris was taken by counsel for the appellant to those final comments by Dr Wade: Q. The final page, page 18, other comments: "Can post-traumatic stress disorder be worsened... unrelated stressor" - WALSH: Your Honour, this is document 4 in Exhibit 10. Q. What, if anything, do you say in regard to that? A. Well, with respect to Dr Wade, he says that he believes that it cannot be worsened. He says it cannot be worsened by an unrelated stressor unless it is a stressor very like the events that produced the post traumatic stress disorder in the first place. Now, with respect to Dr Wade, I disagree reasonably strongly with that. I have encountered numerous people, police officers in particular, who have had what I would call a contained post traumatic stress disorder that they have been managing or battling with for quite a number of years and who are thrown into disarray by an apparently unrelated stress. Now that stressor might be a transfer. It might be some conflict with a fellow officer. It might be a conflict with a superior. It can be any one of a range of things, but it becomes an event which undermines their capacity to cope and in the process the post traumatic stress disorder, instead of being contained, becomes latent and sufficiently severe, not only to cause major problems of the quality of life, but also to disable them for police work. Now I have seen this in a lot of police officers, but I will add that I have seen this not only in police officers, I have seen this in other emergency personnel you see across a range of situations. This is well documented in military situations where if frontline troops feel unsupported by their hierarchy, that that perceived lack of support then translates into a very high level of psychiatric casualties. Q. Sir, in your report, on page 6, in "Conclusions" you note that, in paragraph 5: "His transfer away from the Dog Squad... cause of his illness." In terms of the words "unrelated stressor", you would regard that - you would stand by your opinion expressed there? A. Yes, yes. I mean that is not in itself a stressor that would cause post traumatic stress disorder, however, if a man with a compensated post traumatic stress disorder, a man with a post traumatic stress disorder which he is able to contain and handle, a stressor like that can essentially, well, knock him to the ground. I mean we have seen an analogy of that sort in physical medicine where a person might have a particular illness and it is not - and they develop another illness theoretically unrelated, but then to in conjunction form a very destructive combination. This is what appears to have happened in this man's case. Q. Finally, sir, in regard to Dr Wade, if you would turn to page 9, under "Opinion", number 2? A. Right, I would have to come to that, if you would bear with me. Q. Number 2 is "DSM4 post traumatic stress disorder would not have rendered... in the police service"; and he goes on to speak of incapacity and no compelling reason to believe inherent incapacity. What, if anything, do you have to say about your colleagues' comment in that paragraph? A. Well, I disagree with those opinions. We are talking about his incapacity, at what date? I am sorry, I need to have a clarification as to precisely the time frame we are talking about as to the period of incapacity. Q. You will use the test, the relevant notion of time being 4 March 1999, and the test being that he was incapable of discharging the duties of a sergeant in the police force? A. As of 4 March 1999? Q. Yes? A. Well, my answer is I believed he was not capable of discharging those duties at that time. That is based on his reported symptoms and the reported distress they were causing him as well as associated behaviours flowing from those symptoms. Q. Yes, that is not in dispute, sir, but I will take you to the last sentence in that opinion, paragraph 2: "There Is no compelling reason to believe that any inherent incapacity from post traumatic stress disorder was any significant component of his incapacity after October 1997", what do you say in regard to that, please? A. I don't agree. We are talking about a man who is at that point badly troubled by nightmares, who talks about persistent agitation and anxiety and who worked as a sergeant of police with all the responsibility that entails, which includes the carrying of a weapon. Frankly, he would have been a danger to himself and to the public. I mean people like this are hyper-vigilant and they have an exaggerated startle response. They do not concentrate well. They make mistakes and I think to have a man in that condition "on the street", as it were, would just be an untenable situation, I would think. Q. Thank you, doctor, but specifically addressing his incapacity or him being incapable of discharging his duties and addressing Dr Wade's comment that any such incapability or incapacity, and the relation of the same to post traumatic stress disorder is given, he is incapable, what do you say in regard to that? A. I am saying that post traumatic stress disorder is the cause of his incapacity because it is the source of a number of the symptoms that I have just listed, which are part and parcel of the post traumatic stress disorder I diagnosed. 93 In the course of cross-examination, the following exchange occurred: Q. Sir, may I ask you if you would agree with a general proposition, which is that, it just doesn't follow as a matter of course that a person who has made complaints that are consistent with the diagnosis of post traumatic stress disorder is incapacitated for work? A. No, and there are certain police officers and emergency workers out there right now suffering from post traumatic stress disorder who are working. Now these people are able to work for a range of reasons. It may have to do with the severity of their symptoms. It may be, you know, the severity of their symptoms is somehow contained. It may have to do with the fact that they are receiving appropriate treatment and psychological support. There may be a whole number of reasons why they are still working. No, it's not a case of diagnosis. It was incapacity. If that were the case, then probably 30 per cent of the population would be incapacitated for work, not just from post traumatic stress disorder, but from all psychiatric conditions generally. However, you will have to look at incapacity as it presents to you in this individual for a certain type of work, bearing in mind what opportunities that person has for other kinds of work, what transferrable skills he has. So it's a global judgment based on a whole complex series of factors. WALSH: If I could assist my learned friend, it's my recollection of the evidence that there were fourteen units referred to with dogs and ten policemen and that there was rostering, budgets, shift returns, Internal Affairs investigation on duty seven days a week, budget to run the units. That is as much as I can get. Now it is not complete unfortunately. That is all that I can assist my friend. BIGGINS: Q. Sir, taking into account those last matters as well? A. Umm-umm. Q. Now I don't suggest to you, and I can't suggest to you, that every aspect of his work with his business equated to working as a sergeant? A. Yes. Q. But, nonetheless, there were significant tasks that he did in his own business and in the responsibility as a security guard which had significant similarities to his work as a police officer, would you agree with that? A. Look, the answer is yes, I would, and what flows from that that then is the question why he did not keep on doing it, why did it somehow peter out. Now I don't know the answer to that because I haven't asked the plaintiff, you know, why did it end up finishing and I don't know what his evidence has been. I have earlier suggested that it may be a failed attempt to get back into the workforce, but that's speculation on my part. So really while the answer is "yes", it's a qualified "yes" and the qualification is I would have to know why the business didn't prosper and flourish. Was it because there was an economic downturn and there wasn't demand for his services, or was it that he in fact found it too difficult to carry on with? And then if that is the case, was the finding of it too difficult to carry on with in fact related to the ongoing post traumatic stress disorder and underlying symptoms? Now I don't know the answer to that. It really depends on the evidence that is before the Court, but they are the kind of hypotheses that your question raises. Q. Firstly - I am not going to deal with one matter. Sir, may I ask you, can a person with post traumatic stress disorder ever develop another psychiatric disorder as a result of stress? A. Of course. Q. Like what? A. Well, I have spoken of complications of post-traumatic stress disorder, such as major depression, such as alcohol dependence. Some people would regard them as separate psychiatric disorders; some people regard them as part and parcel of the PTSD picture. Obviously, post-traumatic stress disorder does not protect you against vulnerability to others quite unrelated psychiatric disorders which may be stress related like bi-polar disorders, or schizophrenia. Yes, there is certainly a range of possibilities. Yes, they can develop subsequent adjustment disorders. They can develop major depression secondary and unrelated stress disorders. Q. If it be the case that it could develop, for example, adjustment disorder, could it be the case that this man had for a number of years been displaying symptoms more consistent with post-traumatic stress disorder whilst he was at work-- A. Yes. Q. And not disabling him? A. Yes. Q. Which in fact developed into an adjustment disorder as was diagnosed by Dr Roberts? A. Not on the history that he gave me because the history he gives me is of a fairly massive flare up of post traumatic stress disorder symptoms at that time. So I will disagree with Dr Roberts on that one. Q. That's the decompensation that you were referring to, being an incident that occurs, in this case the incidents at work? A. Yes. Q. The incident with the Dog Squad which brings to a head matters which previously weren't there? A. Which is? Q. I am sorry, that's badly expressed, which brings forth, so to speak, matters which had been previously--? A. Contained. Q. Contained within. A. Yes. Q. But doesn't it also work in reverse, that is the longer that you are away from the stressor, or the firm that you move from, the decompensatory incidents, the less likely that you are to continue to exhibit symptoms of post traumatic stress disorder? A. Unfortunately not in that, really generally, and you note I say "generally" because there is always exceptions to the rule, but in general that's not true of people who have had chronic, constant traumatic exposure. And I have treated such people long after they have retired on medical grounds and their post-traumatic stress disorder continues unabated, perhaps in a more contained form with time, but nevertheless it's post traumatic stress disorder and, you know, if you look for it, if you scratch the surface it flares up. 94 Dr Wade was taken by counsel for the respondent to evidence of Dr Canaris and to Dr Wade's own report: Q. Are you able in either a general sense or a point sense to deal with any of those matters raised by Dr Canaris in which he was in disagreement with you? A. To my mind for no good reason he allocates complaints and symptoms to a diagnosis of post traumatic disorder when there is no necessity to do so and when it is a less satisfactory explanation for those complaints and symptoms; and secondly he does not draw a precise connection between any complaints or symptoms and incapacity for all work. I think it is too broad to reach those conclusions. Q. You heard in particular a question put and I think I have the gist of it, when he was asked whether it was probable that an adjustment disorder, depression and alcohol abuse arose from post traumatic disorder or the reverse and his answer was yes, in his view these infirmities arose from post traumatic disorder. Do you have a view of that matter? Is that a matter you have considered? A. When you say "Arose from" I do not think it could be argued the existence of post traumatic stress disorder led to or caused those other three diagnoses. … there is ample explanation for the other diagnoses without having to suggest it arose as a consequence of post traumatic stress disorder. There is plenty of evidence to suggest Mr Murray was doing very well with his post traumatic stress disorder. Q. When you say doing very well, what time frame are you putting on that, do you mean after his medical discharge or prior to? A. Prior to for most of that decade and I do not think there is any good scientific reason to assume the post traumatic stress disorder suddenly worsened after the stressors he went through in 1997. Q. Would you turn to page 18. You see the paragraph that you have there "Other comments" and you will recall Dr Canaris was asked a question about that paragraph or a number of questions. That paragraph as I understood it is designed to illustrate you opinion that in the absence of a person being subjected once again to similar types of stressors there is no need for continuation of the post traumatic stress disorder? A. Post traumatic stress disorder can be of indefinite duration. I do not think there is any good evidence that a pre-existing post traumatic stress disorder is worsened by an unrelated stressor as distinct from some other disorder or emotion following that new stressor. Q. The stressors in this case being what is referred to by Dr Canaris as decompensating in the work related incidents which occurred in October 1997 concerning the Dog Squad? A. I accept that as a stressor. Q. Could you explain what your view is of the significance of that? A. Mr Murray had a variety of stressors of the type presently required for post traumatic stress disorder in the American scheme. The stressor he describes in 1997 is not at all of that type and I do not think there is good scientific foundation to way an unrelated stressor like that would worsen a pre-existing post traumatic stress disorder. Post traumatic stress disorder has so many symptoms in connection with emotional states, not psychiatric disorder, that there is an error in assuming those worsened symptoms or emotions must be the pre-existing post traumatic stress disorder. Q. If indeed there were complaints of worsening symptoms, what would you contribute that to? A. You need to look in detail at the person's situation. Mr Murray - on all the material it was clear following a messy workplace conflict and other matters and I understand there was even some allegations of misconduct, there was a serious stressor not connected with post traumatic stress disorder. (My emphasis) 95 In relation to stressors, Dr Wade's evidence included the following: Q. Is it your opinion as an expert to the court that any individual is susceptible to post traumatic stress disorder, the only issue being the severity of the stressor? A. I think that is not the case, the majority of people exposed to such stressor do not develop post traumatic stress disorder. Q. Is it the case that stressors can become cumulative in regard to post traumatic stress disorder in terms of the severity of the condition? A. The more such stressors the worse the condition? Q. Yes. A. I'm not sure that happens absolutely, but I don't think it is a general rule. Q. It does happen? A. I'm sure it does. Q. Returning to the concept of a recovery environment, is it the case the absence from an environment where an individual is subjected to stressors gives an individual a greater opportunity to recover from post traumatic stress disorder? A. I think that is unclear. For some people it turns out that way, yes. For other people, no. Q. I suggest to you - not in regard to Mr Murray - but in regard to an individual - there is a staggeringly large number of stressors within the meaning of post traumatic stress disorder, Exhibit 1, would you agree? A. I'm not sure. I suspect most New South Wales Police Officers would have a similar history. Q. You are not looking at a police officer but an individual person? A. This is more than what most people would experience, yes. Q. In terms of DSM-4 which you are familiar with from your report, most if not all of these incidents would qualify as stressors would they not? A. There are other qualifications. They are absolutely the type of stressor the DSM-4 authors envisaged, yes. Q. You agree most of them would fit into that categorisation? A. Yes. … Q. In the case of Mr Murray it is more probable than not that these stressors caused his PTSD? A. By definition, yes. Q. Looking at this extract, page 427 lists the diagnostic criteria for post traumatic stress disorder at the foot of the page and that speaks of the person being confronted with an event or events which involve threatened death and other matters including serious injury or threat to physical integrity to self or others? A. Yes. Q. There is the concept of re-experiencing the stressor is there not? A. Yes. Q. That is over the page at (b) and that includes what has been referred to as flash backs? A. That is an example of re-experiencing. Q. Nightmares are another example? A. Yes. Q. Mr Murray has recounted to you those examples has he not? A. He referred to flash backs and gave an example of nightmares, yes. Q. In the 1980s for example that would be a diagnostic basis for concluding he was suffering from post traumatic stress disorder at that time? A. That would be insufficient, he would need a variety of other symptoms and complaints to add up to an American post traumatic stress disorder. But it is consistent with it. Q. If they were coupled with a sense of exposure or helplessness or fear that would also be consistent with the diagnosis during the 1980s? A. I don't understand the first one, sense of exposure. Q. A vulnerability. If Mr Murray was feeling helpless in the 1980s that would be a basis for diagnosing with others -- not all. These things qualify the person's reaction to the stressor. The fact you experience them may mean nothing at all. Q. If he felt the traumatic events were occurring you agree that would be an indication. A. That is a symptom of post traumatic stress disorder, yes. Q. If he felt he had distress and exposure to fresh events that resembled the traumatic event that would be a symptom would it not? A. You have to look very carefully at that. For example, if he attended another horrific thing you would expect a reaction but that emotion should not be regarded as part of his personal mental illness. Q. It could be both, it could be both a stressor and manifestation of an existing condition? A. I do not see it as a stressor, I was talking about an emotional reaction to a fresh stress which could be seen as a symptom of a pre-existing disorder, yes. Q. A fresh event could exacerbate the existing post traumatic stress disorder, could it not? A. Yes. Q. Mr Murray could manifest symptoms which were horror at the fresh event? A. Yes. Q. And those symptoms could be magnified by the underlying condition? A. Yes. Q. Other symptoms might include sleep difficulty? A. Yes. Q. Hyper vigilance? A. Yes. Q. Anger or irritability? A. Yes. Q. Difficulty with getting on with fellow workers? A. Yes. Q. Inability to complete his work tasks during the allocated time? A. You need to look at what caused that inability. Q. Dysfunctional activities - it is not DSM-4 jargon is it? A. They are not specific enough for this diagnosis. Q. DSM-4 in some respects is a recipe book, you tick off the boxes to get the diagnosis, is that not right? A. There are specific warnings against doing that but often it is used that way, yes. Q. You have to deal with the individual have you not? Psychiatry is an uncertain science is it not? A. In some respects yes; others no. You can use DSM-4 for huge populations or individuals. Q. And there is a warning against using it as a tick the box type diagnosis? A. Yes. Q. It is an aid to diagnosis, not a diagnosis in itself is it? A. I think they are reputable diagnoses well founded in scientific literature but there are certain warnings against ticking boxes, yes. Q. It requires two human elements there, the use of DSM-4. It requires the patient and it requires the practitioner to make use of DSM-4? A. Broadly, yes. Q. And the use of DSM-4 is a subjective matter for the practitioner? A. It is highly objective. Q. In his assessment of the patient? A. Yes. Q. In that regard the accuracy of the history that you take is important? A. Yes. Additional Medical Evidence 96 Relevant extracts from the reports of doctors, who were not required for cross-examination, as to their opinions, are set out below: 97 Dr Robert D Lewin, MS BS, FRANZCP, in a report dated 20 January 2000 stated: Prior to 1997 Mr Murray experienced distress in the context of a range of unpleasant experiences in the line of his duty. He had some post traumatic symptoms. However, a diagnosis of Post Traumatic Stress Disorder would not explain his reaction to the problems in October 1997, nor does it explain his period of dysfunction leading to his medical retirement in May 1999. In my opinion the correct diagnosis is Adjustment Disorder, anxiety and depressive symptoms in a vulnerable individual. There was a period of alcohol Abuse, but this had remitted during 1998. There had been two minor recurrences and I do not diagnose a more severe Alcohol Disorder such as Alcohol Dependence syndrome. His current complaints and the symptoms which probably existed in March 1999 are of depressive symptoms, anxiety symptoms and an intense angry reaction to his current predicament. These symptoms are understandable in terms of his emotional reaction of what happened to him in October 1997 and how his case has evolved since then. One could argue that Mr Murray has some clinical features of Post Traumatic Stress Disorder. However in my opinion his case does not fulfil diagnostic criteria for that disorder. At this stage it appears that a treatment focus upon his current coping, how he deals with his current predicament and an intervention in regards to the family situation is the most likely to be of benefit to Mr Murray. 98 Questioned as to Dr Lewin's report, Dr Canaris said: Q. In regard to Dr Lewin's report, Dr Lewin's report in summary argues that there were clinical features of post traumatic stress disorder in early 1997, but he wouldn't have given a diagnosis of same. What do you say in regard to that? A. I find his opinion difficult to understand. I mean the plaintiff reports symptoms which are all classically associated with the diagnosis. I mean it is true they were not symptoms unique to the diagnosis of post traumatic stress disorder. No symptom in psychiatry is unique to any condition, but I found his opinion difficult to square with my own experience and understanding of his condition. 99 Dr Selwyn Smith, the appellant's treating psychiatrist, advised the appellant's solicitors on 28 June 1999: In summary, therefore, it is my opinion that Mr John Murray has definable psychiatric illness including Major Depressive Disorder, Alcohol Abuse and Post-Traumatic Stress Disorder. His symptomatology, in my opinion, is more serious than that of an Adjustment Disorder. Detailed further exploration has confirmed that Mr Murray has been exposed to traumatic events of a significant kind that have been indelibly imprinted on him. The diagnosis of an Adjustment Disorder is more in the format of a transitory or transient disorder associated with stress which, of course, in my opinion is not the case with Mr Murray. Furthermore, to make the diagnosis of an Adjustment Disorder, one must not find the presence of other psychiatric illnesses such as depression and alcohol abuse, which of course is not the case with Mr Murray. Accordingly in my opinion, the more accurate diagnosis is that of Post-Traumatic Stress Disorder associated with Major Depressive Disorder and Alcohol Abuse. 100 Dr John Albert Roberts, MB BS, FRANZCP, provided two reports (25 March 1998 and 27 April 2000) on Mr Murray. Extracts from Dr Roberts' Summary and Opinion in the second report were: At the time of my preparation of my previous report to you dated 25th March 1998 I considered that Sergeant John Murray was suffering from an Adjustment disorder and I believed that on grounds of probability his condition would remit when resolution is achieved or at the latest within six months of the date of resolution of such problems. It is regrettable that resolution has not been achieved - although Sergeant Murray has been retired on Medical grounds from his place of work, his condition has remained chronic. He is now being treated for Post-traumatic stress disorder based on a belief by his current treating psychiatrists that his condition arose as a result of exposure to multiple trauma during the course of his work. In terms of a diagnosis I would prefer the diagnosis of an Adjustment Disorder but would consider that appropriate diagnosis would be that of a Chronic Adjustment disorder, namely a recognised psychiatric illness, a definition of which is appended and would consider that the circumstances which have been described as giving rise to Mr Murray's condition in my first report, since they have remained in Mr Murray's mind unresolved, have resulted in a perpetuation of complaints. I am of the view that his current dysfunction in terms of my speciality, assuming his account his true and accurate and I have no reason to doubt his account, is having profound effects upon his quality of life, his relationships with others and his level of dysfunction would lead me to the view that he would [sic] classified as a level 4 level of impairment using the text Guides to the Evaluation of Permanent Impairment as published by the American Medical association 3rd edition. The classification of Mr Murray as being a Level IV implies impairment levels that significantly impede useful function in activities of daily living, social functioning, concentration and adaptation and would on the basis of the symptom complex asserted, render him unemployable. Unless his mode of function is able to be altered by treatment, his capacity to interact normally with his family and to make a new life for himself appears to be very severely compromised. 101 Dr Canaris had not seen the report by Dr Roberts, but the comment by Dr Canaris as to that opinion of Dr Roberts was: Q. If I could summarize Dr Roberts' opinion as a preferred diagnosis of adjustment disorder, but considering a diagnosis of chronic adjustment disorder? A. Yes. Q. What would you say in regard to that opinion? A. Well, the notion of adjustment disorder implies a stressor that you are adjusting to, or rather failing to adjust to, and basically once the stressor dissipates, then the adjustment disorder goes away within a period of some weeks or months. DSM4 gives an arbitrary period of six months, but, I emphasize, that is arbitrary. I mean if someone tells me they got better after seven months, that wouldn't alter my diagnosis of adjustment disorder. Now that's manifestly - well, if the history I am given is correct, that is the man tells me it's not the case with this man. The other thing is he reports quite a number of symptoms which really are pretty well unique to post-traumatic stress disorder and are not part of what we call adjustment disorder, which is a little bit of a - I mean, I don't want to underestimate the severity of the concept of adjustment disorder, because some adjustment disorders can be very severe, but adjustment disorders are, by their nature, transient, by their nature they go away, unless the stressor is chronic, and by their nature they tend to be collections of symptoms which don't readily fit other established diagnoses in psychiatry. 102 Dr Wade, in his report on 27 August 2000, commented as to the report by Dr Roberts: Dr Roberts' diagnosis was reasonable and probably applies today, for at least some symptoms. DSM4 Adjustment Disorder requires an expectation on the part of the person making the diagnosis that the disturbance will subside after the stressor abates. The disturbance can be indefinite in duration where the stressor doesn't abate. (Footnote: Criterion E is: Once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional 6 months. Comprehensive Textbook of Psychiatry on CD-ROM , Kaplan H and Sadock B (eds), 6th edition, Williams & Wilkins, Baltimore, 1996) . Workplace conflict remains a prominent stressor for Mr Murray, and improvement can still be anticipated when/if the stressor is ever resolved to his satisfaction. Dr Roberts comments that Mr Murray was preparing a case [presumably against the employer]. That is the type of stress which can frequently perpetuate psychiatric disorders [a similar observation appears to be made by Dr Canaris: page 6]. Consideration - Medical Evidence 103 As can be seen from the extracts of the medical evidence, oral and documentary, set out earlier, all of the reporting doctors, whose reports were before the Court, either supported a diagnosis of PTSD at some period or recognised some of the symptoms displayed by the appellant as being associated with PTSD. 104 Doctors Canaris, Smith and Wade agreed as to a diagnosis of PTSD. 105 Dr Wade agreed that the diagnosis of both himself and Dr Smith was that of PTSD, but Dr Wade believed that Dr Smith had placed a much greater emphasis on PTSD than Dr Wade thought was usual. 106 Dr Lewin's opinion was that the correct diagnosis is Adjustment Disorder, anxiety and depressive symptoms in a vulnerable individual. 107 Dr Wade was surprised that Dr Lewin did not diagnose PTSD. 108 Dr Roberts said he would consider that appropriate diagnosis would be that of Chronic Adjustment Disorder. 109 Dr Wade said that Dr Robert's report had been made much earlier, and he may not have had the history consistent with PTSD. To some extent that latter supposition was supported by the appellant's evidence: On each occasion I saw Dr Roberts I was fairly affected by alcohol and to my recollection I never told him of any of those incidents. Q. Do you say that explains why you would not have told Dr Roberts about these distressing experiences? A. No, I can't explain that because that's just what happened, it didn't come out. 110 Dr Canaris and Dr Wade agreed that the condition of the appellant as at the date of his medical discharge on 4 March 1999 warranted a diagnosis of PTSD. They differed as to whether that diagnosis contributed significantly to incapacity as at that date, Dr Canaris holding that it did, Dr Wade that it did not. 111 Dr Wade agreed with Mr Walsh that in essence Dr Wade had said that the PTSD alone was not the source of the appellant's incapacity, nor did it contribute significantly to it, but was a contributing factor to his incapacity to work in the Police Service as a sergeant of police. Dr Wade also agreed that the appellant was incapable of performing the duties of a sergeant as at 8 October 1997 and 3 March 1999. He accepted that the appellant was unfit for work around the time of the stressor confrontation in October 1997. 112 It was a submission on behalf of the appellant that more credence should be given to the diagnosis by the therapeutic or treating psychiatrist of incapacity to work because of PTSD than to the diagnosis of a forensic psychiatrist disagreeing with that conclusion. 113 The Court was invited to place more weight on the conclusions of Dr Smith than on those of Dr Wade as to incapacity. Dr Smith was the appellant's treating psychiatrist. The appellant had been under Dr Smith's continued care since his initial referral by the appellant's family physician and the police welfare officer. That encompassed the appellant's admission as an in patient to the St John of God Hospital on 2 February 1998 until his discharge on 23 February 1998, and the close monitoring of him by Dr Smith as an outpatient from then until 11 May 1999. 114 In this case the Court has before it the oral and documentary testimony of Dr Canaris, who had seen the appellant twice and Dr Wade, who had seen the appellant once, and the written reports of Drs Smith, Roberts and Lewin. All five doctors have in common their basic medical degrees and are Fellows of the relevant Royal College. (Some doctors have further qualifications.) 115 It seems to me that it would be proper to regard all five psychiatrists as having specialised knowledge. What does the Court do when such witnesses differ in their opinions? I find assistance in the decision in Holtman v Sampson ( (1985) 2 Qd 472 at 474) where it was said: … it is a primary tribunal's duty to find ultimate facts, and, so far as it is reasonably possible to do so, to look not merely to the expertise of the expert witness, but to examine the substance of the opinion expressed. But that is not to say that a tribunal may not accept the opinion of an expert witness. In cases where the experts differ, the lay tribunal will apply logic and commonsense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted. … It was later said: … Commonly the acceptance of the evidence of an expert witness, particularly one who is a member of a profession, does not involve the same approach on questions of credit and credibility as that of an ordinary witness. But it would be wrong to say that questions of credit and credibility are not applicable in the evaluation of an expert's evidence. … 116 In response to the applicant's general submission that more reliance should be placed on the diagnosis of the treating psychiatrist than on that of a forensic psychiatrist disagreeing with that diagnosis, I simply say that each case would be decided on the evidence before the Court, but, as a general approach, I could see merit in conferences, outside the court situation, with a specialist uninvolved in the on-going treatment. 117 In relation to the use of DSM4, there are specific warnings against ticking off the boxes, as it were, in using it as a diagnostic tool. 118 The term "DSM-4" in itself is indicative of a work in progress. It identifies the fourth edition of that particular publication. I would understand that in respect of such publications each new edition takes account of new research and of the experience of the profession as made known through such means as learned papers, seminars, conferences etc. 119 I do not understand that each new edition would be taken as putting forth the final word on any subject dealt with in it. 120 In this case, I use it in conjunction with the evidence of the medical witnesses and their acceptance that DSM-4 provides useful, but not set in stone, guidelines to the diagnosis of PTSD. 121 I find that the condition of the appellant as at 8 October 1997 and 3 March 1999 warranted a diagnosis of PTSD. 122 I also find that the condition of PTSD was an infirmity of mind which contributed significantly to causing the appellant to be incapable, in terms of s 8(1)(a) and S 10B(1) of the PRS Act, of discharging the duties of his office as a sergeant of police or, in terms of s 8(2) and s 10B(2A), other office in the police force. Consideration - Effect of October 1997 event as stressor 123 The appellant gave the following evidence as to the event in October 1997 which precipitated his departure from the Police Service; and its immediate consequences: Q. Now, in 1997 you had the meeting with the superintendent, he was the Regional Commander, was he? A. That's correct. Q. And what happened as a result of that? A. I was so devastated by the transfer out of the Dog Squad that I did break down. I broke down there and then in the room next door with Inspector Budge. Q. When you broke down what, if anything, flashed through your mind? A. All the work I have ever done and everything I had achieved and what was going to become of my dog. Q. And these incidents that you have told her Honour about? A. Yes, all those. I have those flashbacks all the time, of those incidents. Q. And what happened after that? A. I went off sick and I just couldn't stay around any people at all because I kept breaking down. It is something I had never done and it happens all the time, so I had a little place in Ulladulla and I just took off down there and I started hitting the grog bad and the Police Welfare Unit came down and saw me and they put me straight into St John of God Hospital. Q. Do you recall when that was? A. That was in late January 1998. 124 Dr Wade accepted the October 1997 incident of transfer from the Dog Squad as a stressor, and protested he did not seek to trivialise it, but expressed the view that that incident was not the type of stressor presently required to worsen a pre-existing PTSD in the American scheme. 125 Taken by counsel for the respondent to various points in the evidence of Dr Canaris, Dr Wade said: … Post traumatic stress disorder can be a chronic disorder compatible with work and achievement. There are also sub-clinical forms of it. A person has post traumatic stress disorder symptoms but not enough in the present diagnostic scheme to warrant the diagnosis and symptoms in conflict throughout a person's life. Q. Would you agree with Dr Canaris, simply because a person has a constellation of symptoms consistent with post traumatic stress disorder it says nothing about their capacity for work? A. It may not, depending how the points were added up to reach the diagnosis. It may be they warranted the diagnosis because they have subjective distress without any impairment of function at all. Q. If indeed it were the case Mr Murray could have been diagnosed with post traumatic stress disorder prior to October 1997 would there be any reason to imagine why he would not be able to continue managing that constellation of symptoms in the future just the same as he did prior to October 1997? A. Overwhelmingly people get better with the passage of time. He was doing well in his career as I understand it. That most likely would have continued. 126 Dr Wade said his understanding was that, prior to the meeting of 8 October 1997, Mr Murray was working well. The facts that Mr Murray was not sleeping well, was sleeping under a billiard table, was having flashbacks and taking fourteen or more hours to perform the duties of an eight hour shift would not change that understanding unless the employer thought Mr Murray was not working well. 127 However, it would seem that the employer did not think that Mr Murray was working well. The appellant said that Superintendent Michaelis, at the meeting on 8 October 1997, told the appellant that the Superintendent had lost confidence in the appellant's management ability and that he had been transferred back to general duties for a period of twelve months. 128 Dr Wade agreed that the confrontation with Superintendent Michaelis regarding the appellant's transfer from the Dog Squad was an extremely serious stressor. However, he said that it was not the type of stressor that DSM4 post-traumatic stress disorder requires. It was quite typical of the sort of stress that occurred in the community which are followed by post-traumatic stress disorder like symptoms that cannot be diagnosed as post-traumatic stress disorder because of that exclusion in DSM4. 129 Dr Canaris disagreed "reasonably strongly" with Dr Wade's view that PTSD could not be worsened by an unrelated stressor. 130 When one examines the evidence as to the way the appellant functioned personally, socially and professionally over the period from 1981 to 1999, it is plain that that functioning deteriorated on all counts in those years. The PTSD may have been contained, but, in my view, that containment was achieved at considerable cost to the appellant in his private and professional life. The PTSD continued to be contained until the interview on 8 October 1997. 131 It was on that occasion that the containment which the appellant had managed to achieve to that stage, without counselling, with only minimal support of colleagues, for instance, in drinking together, and in immersing himself in work, fell apart. 132 The catalyst was the proposed transfer of the appellant from the Dog Squad back to general duties. No other event was advanced as being involved. 133 Understanding Mr Murray's reaction in October 1997 to the advice that he was being transferred from the Dog Squad to general duties, is assisted by the following evidence: Q. And other than the tasks that I have described to you or you have given evidence as to your duties, what other work did you do in regard to the Dog Squad and its facility in the early nineties? A. When we first went back together we were at Bass Hill police station and we had some 14 units there and all we had for the dogs was a little kennel complex which had three tiny little kennels in it and the whole complex was probably 12 foot by 12 foot in diameter. So I set about - and there was a vacant attachment of land next to the police station. I went around to a lot of different companies in the area, Cyclone Fencing, Boral Concrete, security people for security lighting and on my days off I would go down and poured concrete and put all new fencing up and made a huge big training area for the dogs, at no cost to the Department. HER HONOUR: Q. Could I clarify something here? Mr Murray referred to 14 units. Are you talking about 14 dogs? A. 14 dogs and 14 handlers. It would be one dog per handler, your Honour. WALSH: Q. Did you consult with your superiors on what you were doing? A. Yes, I did. Q. What feedback did you get from them? A. The squad was issued with citations for good work. The Commissioner of Police at that time, Mrs Lauer and the Commissioner had an official opening of the complex and there was awards and presentations given to the members of the public that donated products for the erection of this kennels and training facility. Q. What was Mrs Lauer's role? A. She was patron of the Dog Squad, which I was responsible for. Q. Did you inform your superiors of the hours you were working? A. No, but they knew because they were paging me all odd hours. 134 Mr Murray's work with the Dog Squad was described: Q. Now sir, in 1989 there was a decentralisation of the Dog Squad, wasn't there? A. That's correct. Q. Into districts? A. Yes. Q. And you were placed as a Team Leader for the Inner West District Dog Squad? A. That's correct. Q. That covered Glebe, Leichhardt, Parkville, Newtown, Balmain and Petersham? A. That's correct. Q. (Consent to leading) As Team Leader you were responsible for supervising and rostering personnel? A. That's correct. Q. Complying with district budget requirements, compiling statistics on crimes and liaising with other commanders? A. That's correct. Q. You also had to build the Dog Squad from scratch, didn't you? A. Yes, in that district. What occurred virtually as soon as I became an Operational Unit, I was given that position because it was broken down into district levels. We were there for some 12 months and the whole thing was not working. We were not covering the whole region. We didn't have dogs on night work and people were missing out on training days, so I put a submission together for the reunification of the Dog Squad to a region level and that was taken up and I was given the job to put it back together at a region level, which I did so. And everything increased - the arrest rate, the overtime reduced, the whole management side of it, it worked. … Q. What sort of work, what sort of hours did you do in the early nineties in regard to the Dog Squad? A. Well, I was on call 24 hours, seven days a week and the pager at that time, because they wouldn't give us a telephone but the pager never stopped going off. The workload was just unbearable. The amount of hours, I couldn't even begin to think what they were. Q. Well, in the early nineties, do you recall what the normal shift was, in terms of hours, for a police officer of your rank? A. It was 8-hour shifts. … Q. Did you work 8-hour shifts in the early 1990s? A. Never. 135 As to the hours he worked in the Dog Squad, he said: Q. Yes? A. I was carrying out those duties above what I would have to do. Q. What sort of hours were you working? A. At least 12, 14 a day, if not more. Q. Was it the case that you were unable to perform your duties within the 8-hour shift you have mentioned earlier? A. That's correct, there wasn't enough hours in the day. 136 That evidence as to the hours the appellant worked and the extra duties attaching to the Dog Squad was supported by the evidence of Mr Jones. 137 Dr Wade said that there was plenty of evidence to suggest that Mr Murray was doing very well with his post traumatic stress disorder for most of the decade prior to his medical discharge. 138 However, I do not think that the evidence as a whole that is before the Court does suggest that Mr Murray was doing very well with his PTSD. 139 As a lay person, and taking into account the conflicting medical opinions, I look at the evidence before the Court as to the changes in the way Mr Murray had functioned personally and professionally over the previous fifteen or so years. 140 During the early 90s Mr Murray took work home. At that time an extension had been built on to his house intended to be used as a family room and was referred to by Mr Murray as "the billiard room" because it had a small billiard table in it. In that room, which could be locked off from the rest of the house, Mr Murray later had a desk and computer set up and worked there. He said he was doing most of the paperwork required for his operational role there outside his shifts "so I could keep ahead of it all and everything else that had to go on with the Squad, to keep the Squad going". 141 He also used to keep the breeding dogs at his home and other pups that were going to be trained up. 142 Mr Stuart Jones, currently a casual post officer worker, trained as an electrician and was a member of the Police Service from 1987 until 1998, being a member of the Dog Squad from about 1990. He worked continuously with the appellant until the latter went off on sick leave in 1997. 143 Mr Jones had helped build the extension and he described how the use of that room had evolved from its original purpose: Q. And were you aware of the purpose that room served? A. The room was a family room. I saw it over the ensuing years; it became a partial dog squad office, sleeping quarters for John and living quarters for John. Q. What do you mean by "living quarters", sir? A. Quite often I would have to go to John Murray's house in relation to training, talking over different dog squad matters about, any of the handlers. You would walk in, the pool table was in the middle of the room; it was totally covered with mainly work related equipment; files, paperwork, everywhere. There was a hat stand with all his overalls, boots, socks; everything taken off and put there. Quite often his gun belt hung over the hat ring. There was a mattress. Q. Where was the mattress? A. Under the pool table. John had told me he had been sleeping on the mattress. 144 In the early nineties the appellant had arranged a mattress under the billiard table and most nights slept there because: I just felt I was more comfortable under there, I was more confined, nothing could get at me and it was most of the time also that I just keep working and working all night long or whatever. That is when I also just climbed under there and laid down. 145 In 1996, he was not sleeping very well at all and most of the time would be sitting out the back, smoking cigarettes and drinking coffee. He was asked by his counsel: Q. And if you did go off to sleep what, if anything, happened? A. I would have nightmares. Q. And how would you wake up? A. Cold sweats, scared. A lot of the times I thought I had been shot, I would wake up feeling for blood. Q. And the nightmares, what subject would they relate to? A. Just about everything that we have already gone through in this report here. [i.e. the incidents set out earlier.] 146 The evidence of Mr Jones as to how the appellant's approach to his life and work developed in the period 1992 until 1997 is contained in the following extract from transcript: Q. Sir, what did you observe Sergeant Murray to do in regard to the discharge of his duties as sergeant of the unit? A. As the sergeant of the unit, Sergeant Murray took on just about every responsibility of the unit. Q. What sort of hours did he work? A. Continually would be the easiest word. Q. What do you mean by that? Q. [sic] Unless Sergeant Murray was asleep he was pretty much involved with every facet of the dog squad. Q. Tell me what you observed about Sergeant Murray's work practices in terms of the hours that he kept and issues of that kind, just what you saw. A. What I saw a lot as the operational trainer, I would try and have Sergeant Murray rostered for training days. He was on the operational team as well. He might be rostered for 4pm training shift with me. I would have phone calls from the office where John Murray would contact the office saying he couldn't attend the training. He would be at the office all day working that shift. Later that afternoon he might ring up and say, "Where are we training?" He would come to training so he would still be going through till midnight. I might have a day shift to do training and the next day at 7 in the morning John Murray would get to the office. I would ask him, "When did you get here?" He might say he was up at 4, out to the kennels and went to the office. Q. You observed him to be there with those sorts of hours once or more than once? A. No, that was very regular. Q. Regular? A. Yes. Q. What did you observe about his appearance during the course of the 1990's, in terms of his fitness or weight? A. His weight, he gained a lot of weight, probably the subject of a lot of jokes within the squad due to the amount of weight he did put on. Q. In terms of his freshness, his vigour? A. Very ragged, very red, puffed cheeks. I never observed him to eat well at all. Q. What about his demeanour or temper? A. His demeanour, I noticed from the first times I met Sergeant Murray, his demeanour changed a lot. Q. How was he when you first met him by comparison to later on? A. A very open man, very easy to get along with, worked very hard the whole time when I knew him. The quicker I got to know him, the quicker I realised how much he did work. My family became close to his family, his wife and kids and my wife and kids. We did have occasional social gatherings together; they diminished entirely. The way I saw it, I used to do a lot of jobs with John, just such as building his back room on his house. I would give him a hand. … Q. Thank you, sir. In regard to your observations of John in 1997, that is, before October 1997, what are your recollections of his demeanour and his general behaviour in the discharge of his duty as a sergeant? A. His demeanour carried on, 1997, from 1998, from 1996, from 1995, he just - he was totally engrossed with what he done within the dog squad but, in himself, he just became a lot more distant from everyone around him. Q. Did he socialise? A. At that stage, very little socialising. Q. You had previously done family things together? A. The family things, I saw him grow apart from his family and his kids. 147 As to that last point, the appellant said that in the last couple of years an unamicable separation from his wife has become permanent. He has two children, one aged 22, the other 20. Since 1997 they have all drifted and the appellant has not had much contact at all. That presents quite a different picture from the family outings in the 80s. 148 The picture was confirmed by Mr Graham Smith, retired security officer, who first met the appellant when the latter joined the Police Service in 1980. They became friends and, having children about the same age, attended barbeques and went fishing together. Mr Smith said that in the mid-80s as opposed to earlier in the 80s, the appellant was not the same bubbly sort of fellow he used to be. He was quiet and kept things to himself. When the appellant had first joined the police force he used to talk about work, but not as he went on. He became very quiet. 149 Mr Smith had seen less of the appellant in the 90s but when he did see him later in the 90s the appellant was a different man: "Quiet, wouldn't come out and play with us like he used to". He said that after the appellant's motor bike accident he had changed, becoming withdrawn and attending far fewer functions at Mr Smith's home and doing much less fishing. He said: Q. Wouldn't go fishing? A. Wouldn't go fishing, no. I would have gone fishing with him now I would say a couple of times in six years and he is at Ulladulla too. It is a perfect spot to go fishing. 150 The appellant's own views as to his ability to perform his duties as a sergeant of police in October 1997 were that: Same as I feel now, there is no way in the world that I could do it. I can't get on, I can't talk with people, I don't want to be near people, I just don't want to know anything, I just want to be on my own. Q. And what, if any, purpose does Ulladulla serve in that regard? A. I can stay on my own. I just walk on the beach with my dog. 151 Those subjective views, in my opinion, were in line with the more objective evidence of Mr Jones and Mr Smith. 152 I find that the events of October 1997 were a stressor that led to the worsening of the PTSD suffered by the appellant to the extent that he was, by reason of that disorder, incapable of discharging his duties as a sergeant of police as and from October 1997 and up to, and past 4 March 1999. Consideration - Credit 153 The respondent relied heavily on the work that the appellant had undertaken for Roden Security after he had registered his business as showing that he did not suffer the condition of post traumatic stress disorder that rendered him incapable of discharging his normal duties as a sergeant of police and that he had deliberately deceived the doctors reporting on him in relation to his undertaking such work. 154 In my view, the evidence shows that that reliance was misplaced. 155 The following extracts from the transcript, not in sequence, as to cross-examination going to the period of the appellant's intention to commence a business and registration of the business name are instructive as to his then state of mind: Q. But why would you have gone to the trouble of thinking up and registering the business name if it was not your intention to commence the business? A. I didn't commence the business and I wish I knew why I did start it at that point but as I said, I had a lot of things I didn't know why I was doing them. … BIGGINS: Q. … What I am suggesting to you is, that for a period of time well prior to the registration of the business name, you had intended to register a business name, hadn't you? A. At some time prior to, did you say? Q. Yes? A. Might have been a week, two weeks, I don't know. I can't recall. Q. Or longer? A. No, it wouldn't have been much longer. Q. Why do you say it wouldn't have been longer? A. Because I didn't want to start that then, I didn't want to do that then. I had a lot of people telling me, "you have got to do something, you have got to do something", just other members of the Police Department, doctors, everybody, counsellors - "you have got to do something with your life. Got to do something. Got to get back on track". I could only do what I have been doing for the last 10 years, what I thought I could do. As it turned out, I couldn't even do that. 156 In order to try to get himself together as he said and to do something and because his money was starting to run out and he had to keep paying the mortgage, he started working for himself from home after 9 April 1998 doing some security work and dog training because that is what he knew, in a business called K9 Protection and Training. He was the only employee, sometimes working with a dog. He did some work for mates, turning over a gross amount of $34,374 or $11,600 net, in the following two years, but not doing any security work for the last twelve months. He could see himself getting into trouble doing such work because he got aggressive and lost his temper. He tried to train some dogs, but because he lost his temper with them, failed to do so. 157 The security work undertaken by the appellant for Roden at the block of town houses called Napoli, involved him being present with his dog, within the fenced off site for up to fifteen and one half hours after the workmen left the site in the afternoon and until they returned the next morning. He used to tie the dog up to the bumper bar and the dog would let him know if anyone was coming. He was basically just sitting there watching the premises. "In comparison to a police sergeant there is nowhere near like it, none whatsoever". He had not been involved in any physical confrontation with intruders, his belief being that the dog's barking had been enough to keep them away. 158 He wore no uniform apart from a Roden sticker and his only equipment was his own mobile telephone. 159 With the approval of the Police Service he had done some security work, guarding property over a couple of days, while still a serving police officer. It was from that time that he already had a pistol licence and he carried a pistol on some of the work he did in connection with his business. (The fact that the appellant had been armed caused Dr Canaris some concern when he learned of it in cross-examination.) He had had no occasion to use it, his work, both during the day and at night, consisting of sitting and watching a particular area or site. 160 He said that probably one of the reasons he had not continued this line of work was because he was not sure that if the occasion had arisen, he could have engaged in physical confrontation with an intruder. 161 In the course of operating his business the appellant obtained an ABN, used a computer, prepared invoices and time sheets and operated a special bank account, including cheque facilities. However, he did not advertise. The work that came to him was offered by friends and he took it up when he felt able to. Even in that respect he moved away from security work to doing brickwork and paving and the periods he worked in the eighteen months from May 1999 became shorter and spaced further apart. 162 He had not completed and supplied Business Activity Statements since July 2001 because he had not done any work. On some of his invoices for work done he had included GST as required, amounting only to maybe $12, but "I couldn't take the stress of the whole thing". The business has folded now. The cessation certificate was only issued a short time ago to the Registry. He no longer holds a business name. He could not afford it. 163 The functions of the sergeant's role that he said he would have been required to perform in October 1997 included supervision (possibly ten on a shift at Bankstown), supervision and assistance of junior police, dealing with the public and superior offices, and gathering information. Over and above those duties were those he performed while in the Dog Squad, his work occupying up to fourteen hours a day. As to that latter work he said: A. I was in charge of the entire South-West Region Dog Squad which had the 14 units. I was responsible for rostering the personnel, for deploying those personnel, for carrying out the fortnightly overtime and returns, I also had to carry out internal affairs investigations on my own people. As I said before, I was on call 24 hours a day, seven days a week and I had to make decisions as to the deployment of those people and I had to supply the annual budget and work out what it was going to cost to run that unit for the year as well as performing operational shifts at the same time. 164 The following question and answer appear in the re-examination of Dr Canaris by Mr Walsh: Question three, the last question, you were asked a hypothetical question in regard to his work over a period of time from 3 May 1999 until 9 July 2000. You wished to have further knowledge as to the nature of the work that he was performing. In regard to, and if I could ask you to assume that in regard to the period 3 May 1999 until 16 May 1999 he was with a security dog inside a cyclone style of fence at some unfinished units as a security guard for fifteen hours all the time and that the work that he performed in there is in a security capacity on his own or with the dog over that period of time from 3 May 1999 until 9 July 2000 was approximately forty days, or less, and that he was by himself and not supervising others, and that his net earnings for the period were in the order of $11,597, what, if anything, would you say in regard to the opinion you gave as to the similarity of the tasks that he was performing as opposed to his tasks and his capabilities to perform or to discharge his duties as a sergeant of police? A. I think there is a vast difference. With respect to Mr Murray, who is sitting here in court, in one instance he was a qualified watchdog assisted by his dog with whom he had a very strong tie, he is on his own, he had minimal interaction with the public; in the other instance he performed the work of a very high order of complexity. I don't like saying these things in front of Mr Murray, but I think they have to be spelt out for clarity. There is a vast difference in the order of work as described to me by yourself. 165 I accept that opinion of Dr Canaris, which indeed is supported by the evidence as a whole. 166 I do not accept the suggestion put to the appellant by counsel in cross-examination that the nature of the work the appellant was undertaking at the Napoli, or other units, was similar to that he would have been performing as a sergeant of police, that being the rank held by the appellant in October 1997 and in March 1999. 167 The appellant was cross examined at length as to why he had not advised a number of doctors, Drs Smith, Canaris, Roberts, Lewin and Wade, that he had registered his own business and was working as a security officer. 168 The appellant said he had not been trying to hide those activities from the doctors. He had either not been asked or did not consider it important that he had done some security work or registered his own business. For him the work was not a significant matter in terms of being a rehabilitation attempt, but had been a means of trying to keep his head above water financially. He had advised Dr Smith that he had undertaken some security and some landscaping work. 169 Dr Canaris confirmed that while he would have asked the appellant when he last worked as a policeman, he did not ask specifically when the appellant had last worked. Dr Canaris did ask him how he spent his time, but said that, frankly, in the state the appellant had been, he did not appear like a man capable of working. He was dishevelled, agitated, stinking of cigarette smoke: "He looked a bloody mess". More than that, however, was the appellant's overall mental state, the agitation and anxiety displayed during the two interviews with him, combined with the history of critical incident exposure combined with the reported symptoms, which led Dr Canaris to conclude: A. At 4 March 1999, well, based on the symptoms he is reporting over the period from October 1997 through to March 1999 and subsequently, then I think he was not fit to work as a police sergeant at that stage. 170 The appellant's evidence as to his interviews with various doctors suggest reasons as to why those doctors did not always receive information helpful to them in making an informed assessment of the appellant's condition. He said that when he saw Dr Roberts he was fairly affected by alcohol. 171 The appellant's recollections of his interview with Dr Lewin included: I was pretty upset with that whole interview with Doctor Lewin and quite honestly I can't even remember most of what went on. I was emotionally distraught during the majority of that. … A. Well, I didn't. [ie mentioned his security work.] As I said to you, and I distinctly remember my interview with Doctor Lewin and it was heart wrenching and gut wrenching, the whole interview. 172 He had seen Dr Wade once only for about half an hour at the most, and said that Dr Wade did not draw as much out of him as what others doctors did. 173 It must be kept in mind that the appellant was a man in relation to whom the Delegate for the Commissioner on 3 March 1999 accepted was suffering the infirmities of Adjustment Disorder, Depression and Alcohol Abuse. 174 I do not find anything adverse to the appellant because of the fact that PTSD was not raised until 1998. It was not until he was a full time patient in St John of God that he was the subject of twenty four hour per day observation. The existence of such a disorder was raised by Dr Smith, the appellant's treating doctor at St John of God. I reject the attack on the appellant's credit.

Conclusion 175 It was not suggested by the respondent that there was any other office in the police force in terms of s 10B(2A) that the appellant was capable of discharging. Indeed, the certificate of incapacity issued to the appellant by the PSAC already accepted that he was incapable of discharging the duties on the basis of the infirmities named on it. 176 The Court finds that as at 4 March 1999: (1) the appellant, John Murray, was suffering the condition of post traumatic stress disorder; and (2) because he suffered the condition of post traumatic stress disorder, (a) the appellant was incapable, within the terms of s 8(1) and s 10B(1) of the Police Regulation (Superannuation) Act 1906, of discharging the duties of his office as a sergeant of police; and (b) he was incapable of discharging the duties of any other office in the police force in terms of s 10B(2A) of that Act. 177 The Court makes the following orders: 1. The appeal is allowed. 2. The determination made by the respondent on 17 November 2000 confirming the decision of the Police Superannuation Advisory Committee to exclude the condition of post traumatic stress disorder from the appellant's certificate of incapacity issued pursuant to s 8(1) and s 10B(1) of the Police Regulation (Superannuation) Act 1906 is set aside. 3. The certificate of incapacity issued by the respondent in respect of the appellant on 24 February 1999, in accordance with the decision of the Police Superannuation Advisory Committee, is amended from that date by the addition thereto of a specified infirmity of "post traumatic stress disorder". 178 The issue of costs was not addressed. If the respondent does not agree that the usual course that costs follow the event is appropriate, the Court is to be advised within seven days of such disagreement. Otherwise, the respondent is to pay the appellant's costs as agreed or assessed. ____________________________

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