Johnson v SAS Trustee Corporation

The issue in dispute

1. Considering himself aggrieved by that decision, the plaintiff filed a statement of claim in this Court in the Special Statutory Compensation List on 8 February 2019. Under the heading "Relief claimed" the statement of claim contains this matter: "2. As a person aggrieved, the Plaintiff, in terms of s 21(4) of the Act, applies to the District Court to have the decision of the Defendant set aside, and for that decision to be replaced by a different decision made by the District Court. Particulars of the decision by which the Plaintiff is aggrieved: By letters dated February 2018, and 11 October 2018, the defendant decided, in terms of s 10B(2) of the Act, to not certify that the Plaintiff would have been incapable from a special [sic] infirmity of mind of discharging the duties of the Plaintiff's office as at 28 February 2002 being the time of the Plaintiff's resignation from the NSW Police Force. 3. The plaintiff applies, pursuant to s 21 and, in particular, s 21(4) of the Act, for a determination by the District Court, in terms of s 10B(2) of the Act, that the Plaintiff at the time of the Plaintiff's resignation from the NSW Police Force (28 February 2002) would have been incapable from a specified infirmity of mind (namely either one or both of chronic post traumatic stress disorder and major depression) of discharging the duties of the Plaintiff's office at the time of the Plaintiff's resignation." That pleading was quite inappropriate. Learned counsel for the plaintiff supplied me with an outline of submissions at the commencement of the hearing, which have been marked for identification 2. According to [5] of those submissions, the plaintiff seeks this relief: "(i) the Plaintiff at the time of the Plaintiff's resignation from the NSW Police on 28 August 2002, was incapable from an infirmity of mind of discharging the duties of the Plaintiff's office at the time of the Plaintiff's resignation, that infirmity of mind being either one or more of: (a) (Chronic) Post-traumatic stress disorder; (b) Major depressive disorder; (c) Such other infirmity of mind as determined by the Court; and (ii) The Plaintiff notified the Commissioner of Police before the Plaintiff's resignation from the NSW Police and within six months of receiving the injury which has caused the Plaintiff's infirmity of mind of that injury." Again, that relief is inappropriate.
2. Perhaps the best expression of the relief sought is contained in the affidavit of the Plaintiff sworn on 5 July 2019 which is exhibit A. [10] of that affidavit is this: "I ask this Court, in terms of s 21(4) [of the Act] to set aside the decision of the Defendant made 28 February 2018 and replace it with a different decision, namely: (i) That I did, while a member of the NSW Police Force, notify the Commissioner of Police before my resignation, and within six months of receiving the injury that caused the claimed infirmities of chronic post-traumatic stress disorder and major depression of that injury; and (ii) That in terms of s 10B(2) [of the Act], that I would have been incapable, from an infirmity of mind, namely, either one or both of post-traumatic stress disorder and major depressive disorder, of discharging the duties of my office at the time of my resignation from the Police Force." For reasons which I shall now discuss, that is a more appropriate form of relief, albeit, it should not be expressed in the first person.
3. Section 10B of the Act, as in force at the date of the plaintiff's resignation, provided in subs (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, and (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." In the current case the defendant made a decision under s 10B(2)(a) of the Act. The defendant has yet to make any decision under s 10B(2)(b) of the Act.
4. The relief sought in the statement of claim and in the plaintiff's outline of submissions is therefore misconceived. The only determination made by the defendant concerns the giving of notice, and it is only an appeal from that decision that the Court can entertain. This Court is granted jurisdiction by s 21 of the Act. The relevant parts of s 21 are these: "(1) A person who considers himself or herself aggrieved by: (a) a decision made by STC on a matter that arises under this Act by reason of a member of the police force being hurt on duty, or …………………………………………… may, within the period of 6 months after the person is notified of that decision, apply to the District Court for a determination in relation to that decision. (4) The District Court, after considering an application under this section, may make a determination that the decision of STC… or in respect of which the application was made: (a) be confirmed, or (b) be set aside and replaced by a different decision made by the District Court. (5) The District Court shall not make a decision referred to in subsection (4)(b) unless STC… could pursuant to this Act make that decision." I can only make a determination about a decision that has been made by the defendant. I cannot make a determination about a decision which the defendant has not made. As I pointed out to Counsel for the plaintiff during addresses, if the plaintiff wished the defendant to make a decision under s 10B(2)(b) the appropriate relief was to seek mandamus from the Supreme Court. The plaintiff has not attended to that.
5. However I express the view that it would have been preferable if the defendant could have made a decision under s 10B(2)(b) as well as its decision under s 10B(2)(a), because it may have shortened the length of this litigation and may have obviated a further piece of litigation should this litigation be successful, in the sense that the plaintiff obtain the relief that he seeks and the defendant then makes another decision by which the plaintiff felt aggrieved, there would be a further application to this Court. Furthermore it is not uncommon for decisions of the defendant to be made which do not accord entirely with an application made to it by a former member of NSW Police Force and, if such should occur, the plaintiff would then have an opportunity of seeking to establish whether an appropriate notice had been given of some other certified infirmity, resulting from some other injury of which the plaintiff may have given notice.
6. As I said in Page v Commissioner of Police (No 2) [2012] NSWDC 137 at [119]: "There is before me an irrefragable fact. I perhaps ought to have said that there are before me two irrefragable facts but only one of them is presently relevant. The first irrefragable fact is that the plaintiff has the condition of PTSD. The second irrefragable fact, the one not presently relevant, is that at the time that he left the Police Force the plaintiff was incapable of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act 1990. The second irrefragable fact comes regularly before me in applications under s 10(1A) of the Act where the STC, rather than the Commissioner of Police, is the defendant. I have had cause to observe over the best part of 18 years that sometimes one or both of those irrefragable facts is completely erroneous or completely contrary to the weight of the evidence."
7. For the purpose of deciding the current application, I must presume that the plaintiff will be successful in obtaining a finding from the defendant that the plaintiff would have been incapable from either chronic PTSD or major depression, or both, of discharging the duties of his office at the time of his resignation from the NSW Police Force.
8. The plaintiff relies upon two documents which could be said to be the relevant notice. The first is a "Claim for Hurt On Duty Benefits", being a P124, signed by the plaintiff and dated 27 September 1994. That is a four page document, albeit that the fourth page is completely blank. It is exhibit V. The document, like many, many documents in these proceedings, is also annexed to the plaintiff's affidavit (exhibit N to his affidavit), which is exhibit A, and also forms part of one of the many annexures to exhibit TT, the claim for the hurt on duty pension. The second document relied upon by the plaintiff as notice is a report by Inspector G M Winson, the duty officer at the Wagga Wagga Police Station, dated 11 August 1997, which is headed, "Support for police following attendance and action at fatal motor vehicle accident, Yerong Creek on 9 August 1997". That is exhibit QQ and is annexure Q to the plaintiff's affidavit which is exhibit A. It is also, of course, an annexure to exhibit TT.

Plaintiff's background

1. The plaintiff was born in September 1960. He is currently 59 years old. He grew up in the Illawarra. He attended East Corrimal Primary School until year 6. He then attended Dapto High School, completing year 12 and obtaining the Higher School Certificate in 1978. He then obtained an apprenticeship as a motor mechanic with a Holden dealership in North Wollongong. He completed is apprenticeship in 1982. He then became a qualified motor mechanic, and describes himself in his affidavit as an "automotive engineer". I appreciate the significance of that terminology, as my late father was a motor mechanic and was also a longstanding member of the Association of Automotive Engineers.
2. After completing his apprenticeship the plaintiff stayed on with his master until June 1983 when he was retrenched owing to a downturn in business. He then obtained work with a Nissan dealership in Albion Park. In February 1985 he obtained work as an assistant manager with Dwyers Pty Ltd trading as South Coast Tyre and Retreading, which he held until September 1986. On 29 September 1986 he commenced training at the New South Wales Police Academy at Goulburn, leading to his attestation as a probationary constable of police on 19 December 1986.

Police career

1. His first appointment was to the Engadine Police Station in the Sutherland Police District, where he performed general duties until being appointed to the Highway Patrol on 7 August 1988. The Sutherland District Highway Patrol was in fact stationed at the Engadine Police Station, so the plaintiff remained at Engadine after his transfer to the Highway Patrol. In essence, the plaintiff worked in the Highway Patrol in one way or another at all material times after 7 August 1988.
2. On 9 December 1990 he took up a position at the Heavy Vehicle Unit in the Illawarra. That was formally known as the Highway Patrol at Dapto. However, the Heavy Vehicle Unit operated out of the Unanderra Police Station. The plaintiff was essentially appointed to the Heavy Vehicle Unit because of his qualifications as a motor mechanic. One of the documents annexed to exhibit TT is a communication from the commander of the Southern Region to the Transfer Coordination Committee concerning an application for transfer by the plaintiff from Engadine Highway Patrol to the Wollongong District Highway Patrol. An Assistant Commissioner of Police said this: "Whilst I appreciate the Sutherland District Highway Patrol is currently under strength, action is being taken to advertise these vacancies. With the formation of the Heavy Vehicles Unit at Dapto, I see this as an initiative that needs total support, Constable Johnson is a qualified automotive engineer and can provide the necessary expertise. I recommend the following transfer take effect on 9 December 1990…" He then formally records a transfer of the plaintiff from the Sutherland District Highway Patrol at Engadine to the Heavy Vehicle Unit at the Dapto Highway Patrol.

Service in the HVU

1. In [49] of his affidavit, the plaintiff told me that the members of the Heavy Vehicle Unit, or Heavy Vehicles Unit (HVU) based at Unanderra were Senior Constable David Benes, Constable, 1st Class, Mark Morrow and himself, under the supervision of Senior Sergeant Dennis Cronberger, who was the Wollongong District Highway Patrol coordinator based at the Wollongong Police Station. The HVU was later joined by Senior Constable William Harvey, who gave evidence in these proceedings. The plaintiff said in his affidavit that the HVU was "handpicked," and I accept that. He also said that the members of the unit were referred to as "the Untouchables," and that, from what I have read, appears to be an entirely appropriate appellation because the members of the HVU appear to have conducted themselves in a dedicated and exemplary fashion.
2. Paragraph [51] of the plaintiff's affidavit is this: "The HVU was formed because of a concern that had developed as to the safe operation of heavy vehicles in the Illawarra area. In particular, though not exclusively, the concern developed because of the number of serious and sometimes fatal accidents involving heavy vehicles (particularly coal trucks) going down Mt Ousley on the Mt Ousley Road. The concerns were as to mechanical safety of the vehicles, the overloading of vehicles and the speed at which the vehicles travelled. While initially the unit worked mainly within the Illawarra area, ultimately our operations expanded and took us as far south as Albury and along the south coast as far as Bega." Both in his affidavit and orally, the plaintiff told me that initially the activities of the HVU focused strictly on enforcing the law relating to heavy vehicles, in particular the laws relating to the speed of trucks on the Mt Ousley Road. Only later in its life did the HVU extend its activities to an educational role. The need for the HVU, although it has long since been disbanded, is easily understood as death and serious injury on Appin Road, the Picton Road and the Princes Highway at Mt Ousley continue to be a problem. There are often many motor vehicle accidents leading to fatalities, some of which I have had to deal with in the exercise of this Court's criminal jurisdiction.
3. The plaintiff's affidavit went on to tell me this: "56. During that first six months of the operation of the HVU, the rules and regulations in relation to heavy vehicles were vigorously and regularly enforced. This caused substantial concern within the industry in the area. 57. The consequences of our operations included the slowing down of heavy vehicles and, in particular, the slowing of coal trucks transporting coal from the collieries at Appin and Bulli to the coal loader at Port Kembla. This impacted upon the profitability of the transporting of coal both from the perspective of the owners of the transport operation and also from the drivers. The drivers were paid 'trip money' and their earnings were directly dependent upon the number of trips they did per 12 hour shift. 58. Consequently, the unit was the subject of considerable hostility both from the owners of the truck haulage operations and the drivers. Initially, the unit was also the subject of considerable hostility by the local branch in the Transport Workers Union, who represented the drivers affected by the Unit's operations. This was highlighted by regular representations made by the union either to the NSW Police Force or direct to the local Commanders throughout the Illawarra District and also the HVU direct in regards to action taken against union drivers." The plaintiff then annexed a number of documents to his affidavit which are also otherwise in evidence. They are exhibits K, L, M, N and O.
4. Exhibit K concerns an operation known as "Convoy," which was carried out in the Albury Police District. On 20 February 1992, the plaintiff obtained some information about the attitude of truck drivers to that operation whilst he was patrolling the Mt Ousley Road. Exhibit L concerns an event which occurred on 1 April 1992. The plaintiff had recovered "very reliable information," from a friend who was involved in the heavy vehicle industry of a plan by a small group of truck drivers that could result in serious injury to or death of members of the HVU. In particular, they were out to get a member of the HVU who used an unmarked maroon commodore sedan. Exhibit M concerns an event on 25 June 1992 when intelligence was obtained that there was a threat made to Constable, 1st Class, Morrow, about his personal safety. Not only was a threat to Constable 1st Class, Morrow, but there was also a threat to his "mates," and "associates," which obviously was directed to, inter alios, the plaintiff.
5. Exhibit N concerns intelligence gathered by the plaintiff on 26 June 1992 when it was ascertained that a general support officer, a lady known as Roz, who worked at the Warilla Police Station may have been providing "insider information" about the operations of the HVU to heavy vehicle users. This was an indirect threat to all members of the HVU. Exhibit O concerns the stopping by the plaintiff of a South Australian heavy vehicle on Stoney Creek Road at Bexley, which the driver had driven from Albury to Bexley without any break at all, over a period of some 14 and a quarter hours, at an average speed of 120 kilometres per hour. Despite what was contained in the driver's log book, the truth of the matter could be ascertained from the vehicles tachograph, and the plaintiff was providing general information that whenever police stopped a heavy vehicle, the tachograph of the vehicle must be examined, as well as the driver's log book.
6. A document of a similar nature is a handwritten note made by the plaintiff which is exhibit F and bears the date 11 May 1991. The plaintiff listened to a broadcast by a heavy vehicle driver over the CB radio network, about a threat to Constable Morrow, expressed in this colourful language: "That blond haired cunt I'm going to go my hardest with the Ombudsman and try and get the cunt pissed off, I've got nothing to lose. Cunt dropped one of these mystery speeds on me, one of these ones where someone else saw me and he booked me." Although there were at least two recorded threats made against Constable 1st Class Morrow, the plaintiff was unable to give any evidence of any direct threat to himself.
7. Not only were the members of the HVU concerned with enforcing the laws and regulations concerning the use of heavy vehicles, they also came to be engaged in monitoring the transportation of illicit drugs by heavy vehicles, and also the use of illicit drugs by heavy vehicle drivers. In [63] of his affidavit the plaintiff said that it was not uncommon to prosecute drivers for possession of illegal substances and to convey them to hospitals for mandatory blood and urine testing as a result of coming under notice in respect of the manner of their driving. The plaintiff made it clear that during the daylight hours, members of the HVU initially worked alone, increasing the perceived threat to each member of the unit from aggressive and disgruntled heavy vehicle drivers. That, according to Mr Harvey, led to the members of the HVU working in pairs at night time and eventually during the day time.
8. The plaintiff's affidavit contains this matter: "67. As part of the job, I would attend the offices and depots of local transport companies. This was part of a program attempting to educate the companies and their drivers as to various aspects of regulations which governed their industry. When I attended, and in private conversations with local transport managers on a number of occasions, I was told to 'watch my back'. I was told by the transport managers that some of their drivers knew the make, model and registration number of my private car. I was told that the drivers knew that when I was on duty, my private car was parked in the rear yard of the Unanderra Police Station. 68. In addition to these warnings, my personal details and home address were accessible through the police computer system. 69. I feared that comments made by truck drivers threatening to cause harm would materialise through a serious crash between a heavy vehicle and either our unmarked police vehicle or police motorcycle. I feared that I may be deliberately forced off the road by a heavy vehicle operator or involved in a serious crash caused by the deliberate actions of a heavy vehicle operator which would either kill me or leave me with serious injuries. 70. This fear of being deliberately injured or killed, either in a motor vehicle collision or whilst standing on or near a carriageway, as a result of my duties, caused me to become obsessively aware of my surroundings and personal safety at all times. 71. If I was driving a police vehicle or standing on or near a carriageway, I used to constantly assess what was happening around me and whether or not there existed a potential threat to my safety. I frequently experienced a feeling of nausea and anxiety low in my stomach and I was conscious of an acceleration in my breathing. 72. I felt that the actions of any heavy vehicles nearby appeared out of the ordinary, such as sudden lane changes or drifting towards the centre of a carriageway or towards an edge line where I may have been standing, I would instantly plan an escape route and expect the worst-case scenario to occur such as being hit by the heavy vehicle. My sense of being threatened in this way became more frequent over my time with the HVU."
9. The HVU was disbanded on 11 September 1993. The plaintiff's affidavit was sworn on 5 July 2019, over 25 years later. However similar allegations were made by the plaintiff in a Statutory Declaration which supported exhibit TT, his application for a hurt on duty pension, which Statutory Declaration was affirmed on 30 August 2016, some two years earlier. However the time gap between the plaintiff's experience in the HVU and the recording of the matters which I have just quoted, is particularly long and one must be extremely careful of what might be reconstruction, albeit it unconscious. For example I find, from what I will soon describe, it difficult to accept that the plaintiff when performing his normal duties with the HVU was suffering from nausea or any symptom of anxiety, such as stomach ache or the like, or any problem with his respiratory system. That is, I find it difficult to accept that there were physical signs of some psychic stress.
10. However I accept that there were threats either explicit or implicit made to members of the HVU by disgruntled heavy vehicle drivers. However many threats are made to those who enforce the law, in particular members of the Police Force. Even Judges are exposed to threats. There is no dispute that in 1992 Senior Sergeant Cronberger went to the Unanderra Police Station and told members of the HVU that there was intelligence available that some harm might come to any of the four members of the HVU and that Senior Constable Cronberger advised the members of the HVU to take their firearms home with them at the end of the shift, in order to protect themselves and/or the members of their family. That is attested to also by Mr Harvey and by the plaintiff's wife. I accept that that would be disconcerting.
11. Whether that caused somatic symptoms of psychic distress is another question. The mere utterance of the word "stress" does not mean that a person is injured. Stress is something that our bodies and our minds experience daily and stress is often a way in which both the body and the mind grow and learn. What becomes stressful on one day can become commonplace within weeks when one learns to cope with it. It is not necessarily pathological.
12. In [84] of his affidavit the plaintiff said that when he was working at the HVU his sleep patterns were affected and were "broken", and they have remained so to this day. There is some corroboration of that allegation by Mrs Johnson, but again those observations are made many, many years after the plaintiff was working in the HVU.
13. There are a number of specific allegations which are entirely relevant. Between 29 March and 1 April 1991 the plaintiff participated in an operation which had the code name "Homebrew". That required him to perform Highway Patrol duties within the Milton Police Patrol, with a Constable Paul Jones, who was from the Corrimal Highway Patrol. The purpose of "Operation Homebrew" was to address a drink driving problem within the Milton, Mollymook and Ulladulla areas. At about 2.05am on 31 March 1991 Constable Jones signalled a white Toyota Tarago van to stop for the purpose of random breath testing. The plaintiff approached the driver's side of the vehicle, and as he did so he saw the driver produce a police identification badge and show it to him. The driver said, "Don't come near me with that thing, you're not testing me, I work here." The plaintiff inquired whether the driver worked at Milton. He replied "Yes", and then drove off. This led to the plaintiff making a written report on 1 April 1991. That is annexure G to the plaintiff's affidavit.
14. On 5 April 1991 the plaintiff was required to submit a formal statement to the Commander of the Wollongong Police District about that event. That is annexure H to the plaintiff's affidavit. On 6 June 1991 the plaintiff received a Directive Memorandum from Chief Inspector Crick to submit a comprehensive report of his knowledge of "Operation Homebrew". The plaintiff referred Chief Inspector Crick to the report that he had made to his Police District on 5 April 1991. On the same day he was interviewed by Chief Inspector Crick commencing at 12.10pm. The transcript of the interview is annexure J to the plaintiff's affidavit. In essence, the plaintiff merely confirmed other matters about which he had already provided information. The driver of the white Tarago van was a detective sergeant from the Milton Police Patrol, and he had a passenger who was the wife of a senior constable attached to the Milton Police Station. The detective sergeant was charged departmentally.
15. On 15 January 1992 the plaintiff received a telephone call from a person who identified himself as an investigating officer with the ICAC. He was told that he had been issued a summons to appear and give evidence before the ICAC. He gave evidence from the witness box at the ICAC for about one hour on 19 January 1992. He found the whole process "distressing". He returned to the ICAC on 31 January 1992 when a solicitor acting for him made submissions. He learnt that the Commissioner proposed to make no adverse finding against him. Annexure K to the plaintiff's affidavit is a letter from Messrs Cohen Ajaka and Walter in which the Mr Ken Madden, solicitor, advised the plaintiff that he would hear no more of the matter which took him before the ICAC. From the plaintiff's affidavit it appears that the ICAC inquiry concerned the driving whilst intoxicated by the detective sergeant of the Milton Police Station.
16. The next incident of which there is evidence concerns an occasion when members of the HVU were asked to assist local police at public holiday times on the South Coast to deal with the members of the public. On 1 January 1992 the plaintiff and Constable 1st Class Morrow, and Senior Constable Benes were asked to travel to Sussex Inlet to carry out normal traffic duties. During that period, they stopped a motor vehicle being driven by an elderly gentleman to whom I shall refer merely as SH. He failed a roadside breath test. The plaintiff arrested SH and together with Constable 1st Class, Morrow, he conveyed SH to the Sussex Inlet Police Station in order to undergo breath analysis. He found the station closed. Either Constable Morrow or the plaintiff called the station officer, Senior Constable MK to open the police station and to conduct the breath analysis. Apparently SH resided in the building next door to the Sussex Inlet Police Station and he and Senior Constable MK were friends. Instead of requiring SH to blow into the breath analysis machine, Senior Constable MK blew into the machine, such that it recorded a negative result. When the plaintiff observed that, he followed Senior Constable MK out of the breath analysis room and asked him what he was doing. He demanded that Senior Constable MK get SH to provide a sample of his breath so that his blood alcohol level could be analysed. The reading which SH returned was 0.135. That is a mid-range reading. SH was charged with a mid-range PCA and allowed to leave the police station. When the plaintiff and his HVU colleagues returned to the Unanderra Police Station they spoke with their superior, Senior Sergeant Cronberger and that led to a police internal affairs investigation which eventually caused Senior Constable MK to be charged with attempting to pervert the course of justice. The trial of Senior Constable MK commenced on 12 September 1994. I shall return in due course to that trial.

Service in Wollongong HWP

1. In the meantime, however, the HVU was disbanded and the plaintiff applied for and was transferred to the Highway Patrol at Wollongong. The Highway Patrol at Wollongong comprised 16 to 18 police officers. It was supervised by a senior sergeant and had five marked highway patrol sedans, two marked motor cycles, one unmarked vehicle, and two police trainee motorcycles.
2. On 7 September 1994, the plaintiff was directed to attend the Unanderra Police Station by Chief Inspector McLoughlin from internal affairs. Before attending the interview, the plaintiff heard on "the grapevine" that the members of the former HVU were under investigation in relation to allegations of falsifying departmental records. At the Unanderra Police Station on 7 September 1994, the plaintiff was interviewed by Chief Inspector McLoughlin for a period of about six hours. Paragraph [118] of the plaintiff's affidavit says: "During the course of the interview, I understood that the allegations being made were that members of the HVU (including myself) had falsified departmental overtime records for financial gain. These allegations were simply untrue. I was devastated by them." There is the contemporaneous evidence that the plaintiff's psyche was adversely affected by those allegations. Whether the allegations could be described as "devastating," is difficult to discern so many years after the event occurred, namely 25 years later. If the allegations were patently and blatantly untrue, as the plaintiff's affidavit says, then one can hardly believe that an innocent person would be "devastated." The fact is that no matter how ludicrous some allegations are, the law requires that they all be investigated. One could easily infer that the allegations were made by those who had been dissatisfied with the operation of the HVU and who were glad that it had been disbanded and sought to inflict hurt upon those whom they perceived may have inflicted hurt on them.
3. The trial of Senior Constable MK at the District Court at Wollongong commenced on 12 September 1994, as I have said, and lasted two days. According to the plaintiff, the jury found the accused not guilty. The plaintiff recorded that the presiding judge complimented members of the HVU for bringing the matter forward. The plaintiff it is clear, and his former colleagues in the HVU, were disgruntled by the action of the Crown Prosecutor whom they perceived did not adequately pursue the allegation which they were there to support. Paragraph [123] of the plaintiff's affidavit is this: "However, the fall out for myself and other members of the HVU involved in the matter was immense. We were ostracised by a lot of our peers. This added to my already high levels of stress and anxiety."
4. One can understand that there would have been disgruntled members of the police force because the plaintiff and his colleagues of the former HVU had broken what was perceived as "police culture" by "dobbing in their mates." That form of "police culture" led to the Royal Commission into the NSW Police Force conducted by Wood J. The plaintiff's affidavit continues, thus: "124. The day following the conclusion of the [MK] trial, I underwent an interview conducted by officers of the ICAC. I attended Wollongong Police Station and was there interviewed by two officers of the ICAC. Allegations were put to me of improperly accessing confidential information in the police computer system. I had not improperly accessed such information and told the ICAC officers that I had not done so. I heard nothing more about the matter. However, the interview and the allegations again, caused me substantial anxiety and upset. 125. On the morning of 15 September 1994, Constables Morrow, Benes and I were called to the office of Acting Regional Commander in Wollongong, Superintendent Dave Care. We attended together. 126. Superintendent Care had, at that meeting, some green transfer forms. The transfer forms were colour coded with green being the form for transfer out of a particular region. 127. Superintendent Care talked to us about the [MK] trial. Superintendent Care said words to the effect: 'Find a place to go. You'll never be welcome back here again.' 128. Superintendent Care then handed each of the three of us a green transfer form. I took a form and left Superintendent Care's office." After attending the superintendent's office, the plaintiff went to the Lake Illawarra Police Citizen Boys Club to attend the annual Dry Fire and Weapons Training. He did so with Senior Constable Harvey. The training session was to last for two days. At about lunchtime on 15 September, the plaintiff walked into the office area where Senior Constable Harvey was talking with other police. He removed his appointments and put them on the desk in front of Senior Constable Harvey and said words to the effect that he could not continue to carry on and that he was going to see his doctor. According to Mr Harvey, it was Mr Harvey who suggested to the plaintiff that he see his doctor. The plaintiff did so.
5. On the afternoon or evening of 15 September 1994, the plaintiff attended upon Dr Paul Money whose practice was at 42 The Princes Highway, Unanderra. One can infer that the plaintiff had been seeing Dr Money for some time because on 20 July 1992 the plaintiff lacerated the back of his right index finger when he was placing a video camera case on the top shelf of a metal locker at his work at either Dapto or Unanderra Police Station and his right index finger was caught on a sharp edge at the top of the locker. That he made a claim for hurt on duty benefits I know from documents annexed to exhibit TT. On that occasion he consulted Dr Money on 21 July 1992 because there is reference to an account from Dr Money being paid. On 15 September 1994 Dr Money issued a certificate certifying the plaintiff was unfit for duty between 15 September and 26 September 1994. The diagnosis provided on the doctor's certificate was "acute stress reaction." Before me is a further certificate from Dr Money certifying the plaintiff as fit to resume his normal duties on 27 September 1994. The plaintiff made it clear that he saw Dr Money prior to 27 September 1994. The second certificate from Dr Money repeats the diagnosis of "acute stress reaction."
6. Dr Money's report of 8 December 1994 to the Police Force says this: "Russell has been a patient of mine since September 1986. I have seen him on several occasions during that time, and also when he has brought his children into the surgery. He has been suffering, especially over the last six months, from work related stress. His symptoms in September were aggravated by his appearance in Court, as a witness to a fellow police officer. Also, these were magnified by internal affairs investigating Russell's previous Police Station. He reported sleep difficulties, mood swings, and difficulty coping. He felt that there was a risk of him [sic] having a breakdown and on talking to him for some time, I felt that his best option was to have a break from his police duties before he 'snapped.' My treatment was mainly in counselling and listening and thus, giving him help, a [sic] opportunity to vent his feelings and help him to give priority to his future needs regarding his work and home life. He was off work from 15th to 27th September, after which he was due to have holiday leave. Russell has good coping skills and I am sure, once the situation at work settles, his prognosis is good for a full recovery." That report contains no diagnosis, however one must accept that what Dr Money diagnosed was a "acute stress reaction." The plaintiff either returned to work or did have leave.
7. For the purposes of his hurt on duty claim made at that time, to which I shall return, the police force sent the plaintiff to see the late Dr Kenneth Henry Dyball, a consultant psychiatrist. Dr Dyball was initially due to see the plaintiff on 19 January 1995, but at that time the plaintiff was on leave and the appointment was rescheduled to Wednesday 8 February 1995. The relevant part of Dr Dyball's history is this: "He moved to the Wollongong area in 1990 and was with the then Heavy Vehicle Unit. He was one of the four officers in this. He describes them as being dedicated and efficient and he said, in effect, that their work was 'too good.' He said that there were some local police involved in trucking and coach businesses, and they did not want the Unit to be as efficient as it was. He said that he had to fight every inch of the way to get something done. He got sick of this and transferred out of the Unit in September of 1993, and the Unit has subsequently been disbanded. He went into Highway Patrol. Everything went along normally until around the end of August 1994. He was then involved in a court case that had come about as a result of an incident in 1991. He and another Police Officer had seen a Policeman breathe into a breath-analyser in the place of someone actually driving the vehicle who was a friend of his. This case came to Court in September of 1994. The jury did not accept the version of the patient and the other Police Officer and the fellow got off. This upset him and he said he had, in any way, been aware of resentment by fellow police officers at times over the preceding two to three years and that it had taken this case to come to Court. The very next day after the court case, he was interviewed by ICAC Officers, this over an allegation that had been made two and a half years previously of taking information from Police computers. It had been alleged he was involved. He had been interviewed two and a half years before and nothing had come of it, but then immediately after this court case, he was interviewed again. Nothing came of this [this] time either but he was upset over this fact. Five days later he was interviewed by internal affairs for six hours. This over allegations that he learnt had been made about the Heavy Vehicle Unit where it was alleged that the members of this Unit had falsified shift rosters to gain financial advantage and taken free lunches, et cetera. This interview, he said, really staggered him. These three events happening within days of one another proved too much for him. He said he just did not know which way to go or what to do. He saw a senior police officer and was advised to take time off and see a doctor. He consulted Dr Money, his local Practitioner. He was given ten days off. He saw a police psychologist, Mr Mutton, in the same time. He has settled down within a very short space of time. That is, even before the ten days, and returned to work. When he returned to work, he did rosters for three months, and then normal outside duties. He has been fine since being back at work. Nothing has come of the allegations about the Heavy Vehicle Unit and he has settled down." A history later recorded again speaks of the plaintiff's returning to duty rostering work for about three months shortly after taking leave in September 1994. With the passage of time, it is unclear whether the plaintiff went immediately from sick leave to some other form of leave, or whether he went and did some rostering before going on leave, which he obviously took in January of 1995.
8. In any event, the plaintiff made no complaint to Dr Dyball of any ongoing problems. Dr Dyball's report commences with his recording that the plaintiff told him that there was nothing wrong with him at the time of interview, 8 February 1995. The plaintiff also told Dr Dyball that he took no medication and was not under medical care. He also told the doctor that he had no problem at work and that he liked his job. He was actively involved in sport and played competitive squash. His sleeping and appetite were both "good." Dr Dyball also recorded the plaintiff liked his work and saw his future as being in the police force. The plaintiff told the doctor that he never regarded himself as an anxious or emotionally distressed person. The plaintiff told the doctor that there was no family psychiatric history and that he had never been an abuser of alcohol.
9. Dr Dyball went on to say this: "I do not believe that this man was intrinsically psychiatrically ill in September of 1994, though it is not always easy retrospectively to judge this situation, but on the history as given and on his presentation today, I think that Constable First Class Johnson was suffering situational distress as distinct from intrinsic psychiatric illness. It would hardly be surprising, given the combination of events that he describes, that he should be anxious and upset over three incidents of some note within days of one another and all be potentially adverse for him. It does not seem unreasonable that he should have had a short period of time off work. I have no evidence of other factors involved in his state at that time. He has of course fully recovered from the situational stress that he experienced. He required no treatment, aside from a brief period of time off work to regroup his resources. He should not have any restriction in terms of his future police career, and told me that he did not consider himself in any way limited and he has a very positive outlook on his future work as a policeman. A report from Dr Money that you have sent me confirms that this man was suffering situational stress as distinct from intrinsic psychiatric illness." My reading of Dr Dyball's report is that the plaintiff was upset and destabilised for a short period of time by the situation that he found himself in between the commencement of the District Court hearing at Wollongong on 12 September 1994 and going off work on 15 September 1994. Dr Dyball accepted the plaintiff would have been suffering from anxiety, which raises the possible diagnosis it was some anxiety issue.
10. Much more recently, two psychiatrists have diagnosed the problem at this time as being an adjustment disorder. The terminology used by both Dr Money and Dr Dyball was not in conformity with DSM, but that was not strictly necessary at that time. Section 11A of the Workers Compensation Act 1987 was inserted by Act number 89 of 1995 and came into force on 1 January 1996. Subsection (7) of s 11A currently provides this: "In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker's condition, accepted medical terminology and not only terminology such as 'stress' or 'stress condition'." I realise that that is not the terminology of the original subs (7) because clearly, it had to be amended following the enactment of the Workplace Injury Management Act and Workers Compensation Act 1998. However, to my recollection, the original s 11A(7) required the use of "accepted medical terminology," and not merely use of words such as, "stress" or "stress condition."
11. The first of the two psychiatrists who have described what occurred in 1994 as an "adjustment disorder," is Dr Joseph Dunn, a consultant psychiatrist retained by the defendant who has only provided an opinion based on his reading of the documentary evidence and never interviewed the plaintiff. In his report of 12 September 2017 Dr Dunn said this: "In today's psychiatric terminology, the patient may well have passed through something like an adjustment disorder [in 1994]. Even then, the understandable nature of the emotional reaction and his subsequent rapid improvement would call into question whether any psychiatric diagnosis was warranted at that time."
12. That merely mirrors what Dr Dyball himself said: that he found it hard to accept that the plaintiff was suffering from any diagnosable psychiatric illness. The same opinion as to what occurred in 1994 is given by Professor Alexander McFarlane, an eminent psychiatrist practising in Adelaide who was qualified by the plaintiff's solicitors, and examined him for almost four hours on 21 July 2016. On p 1 of his report of 3 November 2016, there is a summary. In it, Professor McFarlane said this: "In the course of his policing career, he was first identified as suffering from psychological symptoms of an adjustment disorder in 1994 following investigations and Internal Affairs inquiries relating to the behaviour of other officers that Mr Johnson had reported. One of these matters had led to a trial for perverting the course of justice, which Mr Johnson believed was not adequately prosecuted by the Crown Prosecutor…" Professor McFarlane, in the summary, goes on to record that when the plaintiff went to the highway patrol, either at Wollongong or Wagga Wagga, the plaintiff's, "mental state significantly improved."
13. On p 13 of his primary report Professor McFarlane said this: "In 1994, he had a period of two-weeks' sick leave that was accepted as hurt-on-duty. Whilst he had a range of symptoms consistent with post-traumatic stress disorder, it is unclear whether he reached the diagnosis at that time. Initially, there was some lessening of his distress when he transferred to Wagga Wagga because he found this a supportive environment. However, progressively he was exposed to a number of fatal accidents and serious incidents. In retrospect, by 1997 he developed a full-blown post-traumatic stress disorder in the aftermath of the accident that he attended where he was unable to resuscitate a three month old infant. Other incidents further exacerbated his symptoms, such as a highspeed chase where he was nearly killed near Tarcutta." On p 34 of his primary report Professor McFarlane said this: "Mr Johnson first developed significant psychiatric symptoms in the setting of his period of service with the Heavy Vehicle Unit at Wollongong. As set out in his personal statement at that time in the justification for his hurt on-duty claim, there were a series of issues relating to the behaviour and ethical standards of other officers. The statements of other officers that were sought in the investigation of his hurt-on-duty complaints indicate that he had symptoms of increasing irritability and reactivity. Whilst Dr Dyball in his report dated 8 February 1995 does not indicate a specific diagnosis as to Mr Johnson's distress, it is my opinion that Mr Johnson's presentation at the time was consistent with a diagnosis of an adjustment disorder. He has also been subject to significant threats and intimidation as set out in the State Intelligence Network Field information sheets. Hence, there were both circumstances of an interpersonal nature in regards to his working relationship with his colleagues about their alleged unethical behaviour, and direct personal threats against him. His reactivity at this time meant that he was at greater risk in the future of the development of post-traumatic stress disorder. These circumstances were indicative of him [sic] having developed subsyndromal symptoms and being at risk of exacerbation with further traumatic exposures, as well as him [sic] working in an environment where he felt there was little social support, a further risk factor for post-traumatic stress disorder…" With the utmost respect to the learned professor, to refer to the symptoms experienced in September 1994 as being subsyndromal symptoms of PTSD is intellectually untenable. Either the symptoms establish the syndrome or they did not. To say that the symptoms were "subsyndromal" merely states that they were inadequate or insufficient to establish the diagnosis of PTSD. For reasons to which I shall turn in due course, the doctor's opinion as to other stressors that may have been involved in 1994 must be approached extremely cautiously.
14. The matters which the plaintiff complained of to Dr Money and Dr Dyball appear to be events of early September 1994: the trial in the District Court of Senior Constable MK, the ICAC investigation and the Internal Affairs investigation as well as perhaps the plaintiff's being advised by his superior at Wollongong to seek a transfer because other officers were upset with the plaintiff and his former colleagues in the HVU because of their giving evidence that led to the trial of Senior Constable MK. However, it is to me beyond little doubt based upon the contemporaneous evidence, and what the two psychiatrists say at the present time, that in September 1994 the plaintiff developed an adjustment disorder from which he appears to have rapidly recovered.

Notice of 27 September 1994

1. Since the claim for hurt-on-duty benefits that the plaintiff submitted referable to his absence from work in September 1994 is relied upon by the plaintiff in these proceedings as being notice of PTSD and/or major depression, it is necessary to consider that claim. As I indicated yesterday, the claim for hurt-on-duty benefits dated 27 September 1994 is exhibit V in these proceedings and is annexure N to the plaintiff's affidavit which is exhibit A. The injury claimed in the document is in accordance with the diagnosis provided by Dr Money, "acute stress reaction." In answer to the question, "how did the injury/illness occur?" the plaintiff has merely inserted "work-related matters." The fourth page of the document which allows the plaintiff to make additional comments has been left blank. At the time the plaintiff submitted that claim for hurt-on-duty benefits, Sergeant DK King, the relieving district traffic coordinator for the Illawarra District, prepared a "Register of Injuries" form, a P454, and dated it 27 September 1994. In answer to this direction, "Comments (What Conditions may have contributed to this incident? What action has been/can be taken to prevent recurrence?)" the Sergeant has inserted this matter: "IA [Internal Affairs] investigation. Trial of [MK]. Re-interviewed by ICAC."
2. The plaintiff's claim was eventually accepted by letter of 18 August 1995, a copy of which is exhibit PP. One can observe the usual alacrity with which a claim for ten weeks' leave of absence was dealt with - 11 months. Reports were requested in connection with the plaintiff's claim. The plaintiff's report comprises two and a half pages and was dated 2 November 1994. It is exhibit DD. The first thing to which the plaintiff referred was the act or default of Senior Constable MK at the Sussex Inlet Police Station on 1 January 1992. The plaintiff then referred to the incident at Sussex Inlet on New Year's Day 1992 as following upon an investigation by the Ombudsman in 1991 of the police officer at Milton who refused to be breathalysed. The plaintiff then said this: "Both of these incidents, and subsequent investigations, caused me a great deal of emotional stress. There were occasions when my duties required my shifts to be carried out in the Shoalhaven Police District and the reception I received by some police, merely because I was not prepared to tolerate what amounted to criminal corruption, was total ignorance." The plaintiff went on to record that because of those incidents, he felt he received "little support from the Police Department." He then made a complaint about the conduct of the trial of MK by the Crown Prosecutor. He then went on to state this: "I had been tormented enough by the very fact that the incident had occurred in the first place, and to have such a negative approach from the Crown was extremely disheartening." The plaintiff then recorded that the events of January 1992, when he received summons to give evidence at the ICAC, which related to the alleged unauthorised release of confidential government information from police computers. He recorded that he was subsequently cleared of any wrongdoing and thought that that was the end of the matter.
3. However his report continues thus: "After the trial in September, 1994, I was again re-interviewed by staff from the ICAC in respect of evidence I had given in 1992. Although there were no allegations levelled at me on this occasion, I still found the situation stressful and unpleasant." The plaintiff then recorded being interviewed on 7 September 1994, by a Chief Inspector who was conducting an internal police investigation into a complaint about the Heavy Vehicle Unit. The plaintiff went on to say: "A record of interview was conducted over a period of some six hours. The allegations and inferences which arose during the interview were stunning and nothing short of caustic. During my time in the Heavy Vehicle Unit I, as with every member, worked extremely hard. Much work was carried out in our own time and to have allegations levelled at the unit of the type that came out in the record of interview was absolutely devastating. Combined with matters that have occurred previously, the impact on myself and on my family was quite substantial." The plaintiff then said that he reached a point in September 1994 when he was unable to cope with any further pressures leading to the time he took off work.
4. Again, one will note that what was recorded are all internal police matters that I have previously discussed, namely the misconduct of Senior Constable MK, the ICAC investigation and the internal affairs investigation and there was no mention in that report, or indeed to Dr Dyball or Dr Money of, for example, death threats being made to him because he was a member of the Heavy Vehicle Unit or that such threats had been made to him when he was a member of the Heavy Vehicle Unit. That does not mean, of course, that no such threats were made, but what it does mean is that they were not operating adversely on the plaintiff's psyche when that he took time off work in September 1994.
5. A report was also made by then Senior Constable Harvey, which is also dated 4 November 1994. At that time, he was the relieving supervisor in the Illawarra District Highway Patrol. He pointed out that he had been working with the plaintiff since February 1991. The report commences with a statement as to the integrity of the plaintiff, both as a man and as a police officer, and as to his ability to work with his peers and his superiors. Senior Constable Harvey said that since July 1994, he had witnessed two or three incidents when the plaintiff was short with other police in the Highway Patrol, which Mr Harvey thought was definitely out of character, and he considered was stress related. He then speaks about the stress of the trial of MK and his own disappointment with the performance of the Crown Prosecutor. He also then spoke about the complaint that had arisen about members of the HVU and of the investigation that had not, at that time, been completed. This would appear to be the allegation of a misuse of overtime. The report then continues, thus: "In September, 1994, I became concerned in relation to the Constable's attitude to members of the public and his peers. The Constable lost all [patience] and had become short tempered. I discussed this matter with the Constable and as a result of that discussion, I advised him to seek assistance from his doctor. I am aware that Constable Johnson took this advice. Had he not taken this advice, I would have contacted the Employee Assistance Branch myself, because I felt that the constable was in need of help due to stress." Mr Harvey then added this: "I am aware of several incidents which may have caused stress for Constable 1st Class Johnson, other than those mentioned above. Working in the Heavy Vehicle Unit was generally stressful. Members of the Unit dealt with professional drivers and in many cases, the driver's livelihood was taken away with his or her licence. Persons dealt with by way of infringement notice, breach report, and charge regularly became extremely angry and aggressive towards Police. I believe that Constable 1st Class Johnson was affected by this continual exposure to aggression, as were the other members of the Unit." That may have been Mr Harvey's opinion at that time, but the plaintiff himself mentioned no such stressor in his report of 2 November 1994, nor to Dr Money, nor to Dr Dyball. The report of Senior Constable Harvey then goes on to discuss the event at Sussex Inlet at Easter 1991 and of the plaintiff's being summoned to give evidence before the ICAC in relation to the inquiry into the police releasing restricted information. Mr Harvey concluded his report with this matter: "Constable, first class, Johnson is a valuable member of the police service, not only for his knowledge and ability, but for the example that he sets for other members. He has suffered numerous incidents causing stress over the past four years and I believe that the cumulative effect of his stress caused the illness that is the subject of this claim."
6. There was also a report made by Senior Constable PT Lyth, Highway Patrol Tactician of the Illawarra District Highway Patrol. Senior Constable Lyth's report is dated 24 October 1994. He refers to some outbursts between the plaintiff and other members of the police force, in particular, superiors which he thought were out of character. That again is something to which is referred by Mr Harvey. He then speaks of his knowledge of investigations by the ICAC and by the investigation of Senior Constable MK, and presumably his trial. Hs report says this: "During the course of these investigations I observed similar symptoms to which I have described in the latest investigation, that of agitation, being despondent and lacking in his normally positive drive." Again, according to Mr Lyth's report, it appears to be the various Internal Affairs or ICAC investigations and the affair involving Senior Constable MK that led to the period off work as far as Mr Lyth could ascertain.
7. Whether one consults DSM-IV-TR or DSM-5, the primary criterion for the diagnosis of PTSD is that 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 that person's self or others. That is the relevant formulation in DSM-IV-TR. The formulation in DSM-5 is this: "Exposure to actual or threatened death, serious injury or sexual violence in one (or more) of the following ways: 1. Directly experiencing the traumatic event(s). 2. Witnessing, in person, the event(s) as it occurred to others. 3. Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental. 4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse)." None of the precipitating events for the plaintiff's absence from work in September of 1994 satisfies the first diagnostic criterion for PTSD; that is, none of the Internal Affairs investigations, the ICAC investigations or the conduct of MK's criminal trial, nor, indeed, having it suggested to him that he transfer out of the Wollongong District is a stressor which would satisfy the requirements of any version of DSM for PTSD. There is no suggestion by anybody in this case that the events that led to the plaintiff's absence from work for ten days in September 1994 was an episode of major depression.
8. When the Commissioner of Police did accept the plaintiff's absence from work in September 1994 as being hurt-on-duty, it sent to the plaintiff the letter of 18 August 1995, which is exhibit PP. That letter says, inter alia, this: "If you wish to claim any future absence as being directly related to your injury you will need to submit a report to this office through your Commander, as soon as you report off sick, setting out the relationship between the absence and the injury. This report will, of course, need to be supported by workcover medical certificate." That letter came from the Assistant Manager of the Workers Compensation Section of the NSW Police Service. The plaintiff conceded in cross-examination that he made no further claim in respect of the hurt-on-duty injury that he reported and that was accepted in September 1994.
9. Before leaving this event, I should make comment on the plaintiff's attendance on the police psychologist, Mr David Mutton, at this time. The first thing to note is the plaintiff had seen Mr Mutton on 12 August 1994. That was in respect of a sexual assault upon a close family member that had happened two weeks previously. Mr Mutton noted that the plaintiff felt, "helpless to do anything in a personal or police basis," to assist his close family member. Mr Mutton interviewed the plaintiff and his wife at their home on 27 September 1994, the day that the plaintiff was certified as being fit to return to work. The referral to Mr Mutton was made by the now Inspector Cronberger. A note made by Mr Mutton is this: "Russell plus three other former colleagues under investigation because of former role with Heavy Vehicle Unit at Wollongong. They and their commander Dennis Cronberger stepped on various toes during their work - affecting vested interests in other police involved in trucking industry. They were also involved in a court case involving another officer. They felt that they are being dealt with in this way also because of other petty jealousies, etc. He is experiencing many stress-related issues. Feels especially disillusioned about Police Service; feels not worth, 'doing the right thing,' cannot trust his colleagues et cetera. Has tendency to become a little extreme in his thinking which his wife attempts to moderate. Review on request." The plaintiff conceded that he made no further request of Mr Mutton for interview either by him or other members of the Police Psychologist Branch.
10. It ought be clear from what I have just quoted that the plaintiff's concerns were not about external threats to him but of internal police issues; that is, issues that other police may have been making unfounded allegations against members of the former HVU to "Get even" because of the good work which members of the HVU had done which adversely affected some members of the Police Force. In other words, there was no mention to Mr Mutton of anything that could satisfy the primary criterion for post-traumatic stress disorder, nor do the plaintiff's complainants to Mr Mutton speak of a depressive illness, but rather, of anger and disillusionment which are inconsistent with a depressive disorder.

Move to Wagga Wagga

1. The plaintiff remained working in the Highway Patrol at Wollongong until being transferred to Wagga Wagga in effect on 11 September 1995. In other words, in rough terms, he worked on for a further year at Wollongong before going to Wagga Wagga. I have already quoted the statements recorded by Dr Dyball of the plaintiff's returning to work with the Highway Patrol and of not suffering from any ongoing problem. That is also consistent with the prognosis offered by Dr Money in his report of 8 December 1994.
2. The plaintiff applied on two occasions for transfer to Wagga Wagga. The first occasion was on 31 October 1994; that is, shortly after returning to work after his absence in September 1994. The application bears the date 31 October 1994 and gives the following background: "On Monday 31 October 1994 vacancies for Highway Patrol Constables, SDA 0584, were advertised in the New South Wales Police Service Weekly. I am desirous of making application for the vacancy existing at Wagga Wagga." The plaintiff prepared a four-page document on 31 October and submitted it. The first part of the report outlines his, "Appropriate Policing Experience." The second part outlines his Qualifications. The third part is headed, "Traffic Act and Regulations," and speaks again of the plaintiff's knowledge and ability with the relevant law. The fourth section is headed, "Motor Vehicle History," and speaks about his driver's licence history. The next section is headed, "NSW Police Corporate Plan," and states that the plaintiff is aware of the provisions that exist in the Police Department's Corporate Plan Summary, and more significantly, the Department's Key Result Areas, and there are further sections concerning Road Safety, Property Theft and Street and Personal Safety, and finally, of EEO Principles of which the plaintiff was aware. That application was not successful.
3. However, he made a further application on 21 June 1995. That application was supported by a much shorter and more succinct report, also dated 21 June 1995. That application was successful, leading to the plaintiff's being transferred to Wagga Wagga, with effect on 11 September 1995. It is of interest to note that in the same month he made the application, the plaintiff was promoted to the rank of Senior Constable, but prior to 21 June 1995. In other words, the plaintiff's work with the Highway Patrol had been acknowledged because he received the promotion to Senior Constable while still working the Highway Patrol at Wollongong.
4. It is of further note that by the time that he made the second application for transfer to Wagga Wagga the plaintiff's friend - and I use that word advisedly - the former Senior Constable Harvey, had been promoted to sergeant and was in fact one who had been formally offered and accepted a position as one of two sergeants at Wagga Wagga in charge of the Highway Patrol in that Command. It is clear from Mr Harvey's evidence that he put in a good word for the plaintiff, which may have been part of the reason that the plaintiff's application for transfer to Wagga Wagga was successful. Mr Harvey made it clear that he thought the plaintiff to be an excellent Highway Patrol officer and a person whom he could trust, being now a senior constable, and therefore more senior than some others in the Highway Patrol.
5. Neither of the plaintiff's applications to transfer suggest that he was labouring under any difficulty in working in the Highway Patrol. Rather, they speak of a man who was interested in working in that field and keen to obtain a transfer to work in the Highway Patrol at Wagga Wagga. The plaintiff accepted that in cross-examination. There is evidence other than the history given to Dr Dyball which essentially confirms that the plaintiff was doing well in the Highway Patrol at Wollongong and, when he went to Wagga Wagga, was also initially performing very well.
6. In support of his application for hurt-on-duty pension the plaintiff submitted a statement of Mr William Harvey which bears dated 15 August 2016. It is an annexure to exhibit TT. As I understand it, it commences on p 102 of that exhibit. In his statement, Mr Harvey said this: "14. In July 1995 I transferred to the highway patrol at Wagga Wagga on receiving a promotion to the rank of Sergeant. Before I took up my new position I became aware that a vacancy existed in Wagga Wagga Highway Patrol for a senior constable. I spoke with Russell and encouraged him to apply for the position. Russell agreed and submitted his transfer application which was successful. He transferred to Wagga Wagga highway patrol in September 1995. 15. I encouraged Russell to apply for the transfer because I held a high opinion of him as a highway patrol officer and as an officer of the highest integrity. To my observation working with Russell in the HVU and later in Wollongong highway patrol he was a knowledgeable and competent officer. He was also, to my observation, an enthusiastic officer. He got along very well with colleagues and members of the public. He was very helpful to younger officers, encouraging them and tutoring them where he could. 16. From when Russell arrived in Wagga Wagga in September 1995 to his resignation in August 2002, I was his supervising sergeant (except for a short period in 2000 when I was rotated to general duties for three months and subsequently went to Sydney to take up policing duties at the Sydney Olympics). However, apart from these short periods, I had frequent and often daily contact with Russell. 17. In his early years at Wagga Wagga Russell worked as he had in the HVU and Wollongong, that is, with energy and enthusiasm. He interacted well with other officers and with members of the public. He was also, to my observation, a courageous officer. I recall one New Year's Eve at Wagga Wagga in about 1996/1997 there was a lot of disturbances in the CBD. There were a number of violent brawls during the night and into the early morning the following day. At one particular brawl in Baylis Street, Wagga Wagga I recall observing Russell sprinting after one offender and tackling him to the ground. 18. From about early 2001 I noticed a change in Russell. He was no longer as cheerful as he used to be. He was no longer as enthusiastic. He became more reserved and introverted. He did not react as well with fellow officers. Also, the standard of his policing deteriorated in that he appeared to be just 'going through the motions' rather than the keen officer he had formerly been. These changes did not appear all at once but developed throughout 2001 and 2002. Over time, I came to the view that Russell was troubled mentally." In his viva voce evidence Mr Harvey said that this could have been from early 2000 rather than early 2001. The important point is not when the change started but the fact that when the plaintiff went to Wagga Wagga he was functioning normally as far as Sergeant Harvey was concerned. He was working with energy and enthusiasm and was getting on well with other members of the police force and with members of the public.
7. The other sergeant at Wagga Wagga was Sergeant Darrell Hunt. Sergeant Hunt also provided a statement dated 12 September 2016 which is an annexure to exhibit TT. As I understand it, it commences on p 99 of that exhibit. The relevant portions of Mr Hunt's statement are these: "7. In about 1996 I obtained a promotion to sergeant at Wagga Wagga Highway Patrol. I remained as sergeant in Wagga Wagga Highway Patrol until 2006 when I was medically discharged from the NSW Police Service. 8. I first met Russell Johnson ("Russell") in 1996 after I took up duty as Sergeant of the Highway Patrol in Wagga Wagga in 1996. Russell was then Senior Constable in the Highway Patrol at Wagga Wagga and one of the officers under my supervision. 9. I quickly formed a high view of Russell's policing capability. To my observation, he was very enthusiastic about his work and keen in the performance of his duties. He used to arrive early for duty and appeared to enjoy his work. He was also a very competent and trustworthy officer. 10. However, Russell's demeanour and attitude changed over time. The change commenced sometime after he and I attended a motor accident in which one adult died and an infant was fatally injured. 11. This accident happened in August 1997. Russell and I attended the accident together. We were the first responders and arrived even before ambulance officers." Mr Hunt's statement continues to describe the motor vehicle accident I have just mentioned but I prefer at this stage to take up the relevant narrative from what the plaintiff said in his evidence.

Events in Wagga Wagga

1. This was a particularly traumatic event. However, it was not the only event that may be referable to PTSD. The first event that occurred in Wagga Wagga was an event that occurred on 11 May 1996. The plaintiff attended a motor vehicle accident on the Coolamon Road, Wagga Wagga near the rear entrance to the Agricultural TAFE. A vehicle had overturned. The plaintiff's affidavit continues thus: "I got down on my hands and knees in the dirt at the side of the vehicle near the passenger's front window. I observed that there were two male persons in the vehicle. I later learnt that their names were Terence Gilchrist and Nathan Westaway. One of them was squashed and compressed down and he was looking directly into my eyes. I could hear him groaning and he appeared to be in great pain. I spoke to him and told him that he's going to be okay, to hang on as the rescue squad were going to get them both out. Over the next few minutes, I kept talking to him and I watched the life get squashed out of him. His eyes appeared to go black and he was no longer responsive but he kept staring at me." Apparently the two gentlemen in the car had been speeding and the car had been stolen. The driver lost control. The vehicle became airborne and then crashed into a "clump of trees."
2. The next traumatic event deposed to by the plaintiff in his affidavit is one that was adverted to by Mr Harvey as evidence of the plaintiff's courage. According to the plaintiff, the events in question occurred on New Year's Eve 1996, that is, on 31 December 1996 and continued on into the morning of 1 January 1997. Perhaps through lack of prescience, only six officers were rostered for duty at Wagga Wagga over the evening of 31 December 1996 and the morning of 1 January 1997.
3. A report was heard on the police radio of a group of young people walking through the streets in and around the Wagga Wagga central business district, members of which were assaulting people at random using a small wooden truncheon similar to an old style police truncheon. The plaintiff responded albeit that he was in the Highway Patrol. This is common. According to the plaintiff's affidavit, the police were overwhelmed by the volume and level of violence that was occurring. There was a violent disturbance at the intersection of Baylis Street and Edward Street. The plaintiff's affidavit continues thus: "171. Senior Constable Ian Hardinge and I attended that location with all available Police. When Senior Constable Ian Hardinge and I arrived, I observed a male person standing on the western footpath of Baylis Street. He was bleeding heavily from his face and head. He appeared to have been slashed with a sharp instrument such as a piece of glass or a broken bottle. 172. I was unable to offer immediate assistance to that male person because of a serious assault that was being perpetrated on Senior Constable Elizabeth Reeks nearby. I observed that she was bent over and being held in a headlock and repeatedly punched in the face by a male Offender. Before I was able to render assistance, Senior Constable Red Mineham went to her assistance. The offender ran off. Senior Constable Mineham chased and arrested him, near the Astor Hotel on Edward Street. I was also involved in physical altercations at that location, attempting to arrest and assist the arrests of Offenders. As a result of the assault upon her, Senior Constable Reeks sustained trauma and long term damage to her spine. She had to resign from the Police Force. 173. At about 4.50am, in company with Senior Constable Ian Hardinge, I then went to the intersection of Edward Street and Station Place on the footpath outside the Astor Hotel where a young male was lying on the footpath unconscious and bleeding from serious head injuries. He was being treated by paramedics, but at that time, there were no ambulance vehicles available to transport this young victim because all available ambulances were in use in conveying other victims to Wagga Wagga Base Hospital. 174. The riot that had occurred in the vicinity of Edward Street and Baylis Street that morning was extremely violent at points and placed the small number of police in attendance in a great deal of physical danger. 175. At about 6am on 1 January 1997, Senior Constable Hardinge and I were informed of the location of the main offender believed responsible for the assaults in Wagga Wagga CBD the evening before. He was a person known to me as Christopher James Hoerler. Senior Constable Hardinge and I went to the location a short distance from the Astor Hotel. We approached Hoerler who was verbally abusive. We arrested him and handed him over to general duty officers who put him [in] a caged truck and conveyed him to Wagga Wagga Police Station. 176. The events of 31 December 1996 and 1 January 1997 left me being shocked and overwhelmed by the high level of violence exhibited during this period." The plaintiff did not say that he chased and tackled one offender, but that may well have occurred and the exact details had escaped from the plaintiff's memory. In any event, this was a traumatic event and I accept the plaintiff may have felt threatened by it.
4. However, the much more serious event is the motor vehicle accident of August 1997 that was referred to by Mr Hunt in his statement. On Saturday 9 August 1997, the plaintiff was working with Sergeant Hunt. They were rostered for duty between 3 and 11.30pm. They were at the police station at Wagga Wagga at 9pm completing the charging of an offender when an urgent job was broadcast over police radio. It related to a serious motor vehicle accident on the Olympic Way approximately 5 kilometres south of the village of Yerong Creek. Yerong Creek is approximately 45 minutes' drive south of Wagga Wagga on the Olympic Way. The plaintiff and Sergeant Hunt responded to this urgently and proceeded to the accident scene with lights and sirens activated.
5. The plaintiff's affidavit continues thus: "178. We arrived at the accident location and parked our highway patrol vehicle. I got out of the front passenger door and walked towards the centre of the bitumen carriageway. There was a heavy vehicle stopped in the northbound lane with its headlights and engine running, along with the emergency service vehicles and civilian vehicles. 179. A male person, who was the driver of a heavy vehicle, was walking towards Sergeant Hunt with a young infant in his arms and drawn into his chest. The male driver was crying. I saw the infant was wrapped in a bunny rug and the driver said words to the effect: 'I can't look at her. I think she's dead. Can you look at her please?' 180. I walked towards the driver and said words to the effect: 'It's all right, pass her here.' 181. I took the infant from him and cradled her in my arms. I lowered the bunny rug from her face and saw she was pale and unconscious. I could not detect any sign of breathing, nor could I find a pulse. I looked at Sergeant Hunt and said, 'Come on Darrell.' I ran to the rear of the highway patrol sedan and I laid her on the right-hand side with the boot lid on her back. I later learned her name was Elizabeth April Dixon and that she had been born on 26 April 1997. I removed the bunny rug from around her face and again took a moment to feel for a pulse, and to try and ascertain if she was breathing but I could find no sign of life. I saw that she had an amount of blood coming from an area of her right ear and nose. 182. Sergeant Hunt and I then commenced CPR on Elizabeth, with Sergeant Hunt performing rapid chest compressions. I placed my mouth over her nose and mouth and began breathing for her. We continued CPR for some time and stopped momentarily to check for any signs of life. We then continued with CPR. During the time that I was breathing for Elizabeth, with my mouth over her nose and mouth, I was aware that I had been swallowing fluid which had a bitter and slightly salty taste. I was unaware of the seriousness of her injuries at the time. I later learnt that she suffered major trauma to her head, which had fractured her skull, allowing brain fluid to seep out by her nose and mouth area. 183. Ambulance Paramedics arrived and instructed us to continue CPR while they set up advanced life support equipment to assist her. After a period of time, the Paramedics were ready to transfer Elizabeth to Wagga Wagga Base Hospital. Monitors attached to her at the time showed that she did have a heartbeat and I felt encouraged at the work that Sergeant Hunt and I had done may have helped her."
6. Because the two ambulance officers were working on the child, the plaintiff drove the ambulance to the Wagga Wagga Base Hospital. However they were met along the way back to Wagga Wagga by a team sent by the Hospital. He stopped the ambulance on the side of the Olympic Way near Uranquinty while the doctors from hospital and the ambulance officers sought to assist the child. Eventually, the journey to the Wagga Wagga Base Hospital continued with the plaintiff driving the ambulance.
7. Before the plaintiff left the hospital, he saw the child's mother who had been the driver of the vehicle in which the child was injured sitting in an open cubicle in an emergency room with a white hospital blanket wrapped around her, cradling the child in her arms. The plaintiff said in his affidavit he felt an overwhelming level of grief, loss, and extreme sadness for the lady and her daughter. The plaintiff was taken from the hospital, back to the Wagga Wagga Highway Patrol office by general duties police. The plaintiff's affidavit continues: "I went home and I remember sitting in my loungeroom, crying and extremely distraught. My wife was asleep and I did not wish to disturb her at that stage."
8. The plaintiff was able, however, to attend his next rostered shift on Sunday 10 August 1997. He was the sole member of the Highway Patrol rostered for duty at 11am on that Sunday. The plaintiff's affidavit deposes to his continuing level of sadness and states that he remained in the Highway Patrol office doing paperwork until about 2pm when his level of grief was such that he decided to go to the Wagga Wagga Police Station and talk to general duties police concerning the accident. There, he became extremely emotional and began to cry uncontrollably. He said that he was in that state when he spoke to the duty officer at the time, Inspector Winson. He finished work that day early. Not only did the child die, but so did the child's father. The driver of the vehicle, the child's mother, and two of the child's siblings were all injured as well.
9. This was clearly a very tragic event and one can understand the event staying in the plaintiff's mind because of his intimate association with the deceased child. Inspector Winson prepared a report which bears date 11 August 1997. It is exhibit QQ and annexure Q to the plaintiff's affidavit. The report commences with a heading, "Issue," and then occurs the following: "Support for police following attendance and action at fatal motor vehicle accident, Yerong Creek 9 August 1997." Then follows a description of the accident and a list of police who attended. They were Acting Inspector Keith, the duty officer at Wagga Wagga at the time, Sergeant Sorensen, the shift supervisor at Wagga Wagga, Constable Bray, a general duties officer, Sergeant Evans from Culcairn Police Stations, Detective Senior Constable Coleman from the Physical Evidence section at Wagga Wagga; Senior Constable Mitchell from The Rock Police Station, who was the officer in charge of the investigation, as well as Sergeant Hunt and the plaintiff. After listing those police who attended, there is a heading, "Comment," and then follows this: "All police who attended the scene have been emotionally traumatised to varying degrees. This is particularly the case with Sergeant Hunt and Senior Constable Johnson, who were the first on the scene, and each of whom spent some time administering CPR to the baby, before she finally succumbed to her dreadful injuries. This date, I have contacted the Police Welfare Branch and spoke to Mr David Mutton, chief psychologist, and provided him with details of the incident and home telephone numbers of both Sergeant Hunt and Constable Johnson. I have also spoken to Robyn Kelleher, Grief Counsellor attached to the Wagga Wagga Base Hospital. Ms Kelleher has had many dealings with police over the years, is highly qualified and has proven to be very supportive of our staff in traumatic situations. Ms Kelleher has undertaken to contact Mr Mutton with a view to being registered with the welfare branch as a local resource at Wagga Wagga. Arrangements have also been made to have Ms Kelleher contact each of the police who attended the accident scene, and will be speaking to them in person in the near future." The report then outlines the arrangements that had been made with Ms Kelleher. Relevantly, arrangements had been made with her to interview the plaintiff on the afternoon of 11 August 1997. The report was forwarded to the local area commander at Wagga Wagga. That gentleman has endorsed this beneath his signature: "Please note trauma on personnel records." He also directed that a copy of the report be sent to the Staff Officer who endorsed, "Noted," on the document. Presumably it was up to the Staff Officer to note the "trauma" on the personnel records of the police involved.
10. The plaintiff was interviewed by Ms Kelleher. That is deposed to in [194] of the plaintiff's affidavit. The plaintiff deposed to Ms Kelleher asking the plaintiff how he was coping and she asked the plaintiff to meet with the child's mother, to which he agreed. Ms Kelleher arranged the meeting with the mother and other family members at the Wagga Wagga Base Hospital. The plaintiff attended at the meeting at the Wagga Wagga Base Hospital. In [195] of his affidavit, the plaintiff said this: "The meeting was extremely emotional. Mrs Dixon wanted to know what part Sergeant Hunt and I played in trying to assist Elizabeth and I recounted our actions to her. I found this a very emotionally painful experience." In the following paragraph of his affidavit the plaintiff said that apart from a visit to his home by Ms Kelleher, he did not otherwise receive any psychological assistance or counselling concerning the death of the child.
11. However, that is inconsistent with records tendered in the plaintiff's case, records of the New South Wales Psychology Service, which are exhibit UU. They record that the plaintiff and also Sergeant Hunt were visited on 14 August 1997 at the Highway Patrol office in Baylis Street, Wagga Wagga, by Mr Stan O'Brien and Mr Alan McCloskey. That obviously escaped the plaintiff's recall when he swore his affidavit some 22 years after the event. That is completely understandable.
12. In [197] to [200] of his affidavit, the plaintiff deposed to enduring memories and recollections of this event and of driving past the accident scene on a number of occasions and, for example, leaving flowers at the accident scene at various times. The plaintiff was provided with a photograph of the deceased child by the child's grandmother through Senior Constable Mitchell of The Rock, the investigating officer. In [199] of his affidavit, the plaintiff said that he has kept the photograph of the child with him at all times since it was provided to him. He still experiences the taste of what may well have been a mixture of cerebrospinal fluid and blood. The plaintiff said that in order to try to rid himself of this phantom taste he consumes alcohol, at times to excess. There were a large number of other traumatic events to which the plaintiff deposed in his evidence and which have been mentioned to a psychiatrist. In reciting the other traumatic events to which the plaintiff was exposed after the motor vehicle accident of 9 August 1997, I shall attempt to be succinct. The next event that occurred was in either 1997 or 1998. The plaintiff and a colleague attended the Glenfield Road Animal Shelter in Wagga Wagga. There was a report of shots being fired. When the matter was investigated the plaintiff and his colleague found that a female council ranger had committed suicide by using two .22 calibre rifles to kill herself by shooting each of the rifles into her head. According to the plaintiff's affidavit, most of the woman's face and skull had been blown away and there was blood and brain tissue scattered throughout the demountable building in which the suicide occurred. The plaintiff described the scene as "horrific" and one can understand that.
13. The next traumatic event to which the plaintiff deposed was negotiating with an armed offender at Turvey Park on 17 January 1998. The incident occurred at the Turvey Tavern Hotel. The offender was holding a carving knife in one hand and a large cleaver in the other hand. By the time the plaintiff arrived at the scene the offender had smashed both glass doors which provided entry into the hotel. The offender was drunk or appeared to be, as far as the plaintiff was able to ascertain, and was inviting the police to shoot him. Eventually the plaintiff was able to persuade the offender to give up his weapons allowing him to be arrested. The ploy used by the plaintiff was to offer the offender a cigarette.
14. In either 1998 or 1999 the plaintiff attended a further fatal motor vehicle accident on the Olympic Way in an area known as Old Junee. Initially the plaintiff was directed by VKG to go to the Junee Hospital and collect a medical practitioner whom he was to transport to the accident scene. The person injured in the motor vehicle accident, a lady who died, was a nurse who was employed at the Junee Hospital and was on her way home after completing a rostered shift. She had been working with the doctor whom the plaintiff was transporting to the accident scene in order to treat her. Unfortunately, efforts to extricate the lady from the vehicle in which she was and which had collided with another vehicle were unsuccessful and she died.
15. The next event which happened in either 1999 or 2000 involved a collision on the Hume Highway 20 kilometres south of Tarcutta. There had been a collision between a utility truck being driven by a male who was intoxicated. He had struck a Mitsubishi Magna being driven by an elderly man and in which his wife was a passenger. When the plaintiff arrived at the scene, he found that the elderly couple were being treated at the time by what he thought were members of the public, but were in fact two medical interns on their way back to Albury Base Hospital where they worked. The elderly couple died. In [228] of his affidavit, the plaintiff said this: "On the night of the accident, the weather conditions were fine, but as it was winter, the air temperature at the accident was around minus 6 degrees. I remember standing at the front of the Magna and looking at the elderly couple. The air was so cold that ice had started to form over their faces and bodies, as well as over the vehicles. Watching the ice particles form over their deceased bodies only worsened my sense of sadness, sorrow and hopelessness." Eventually, ambulance rescue personnel were able to extract the bodies of the deceased from their vehicle and transport them away.
16. The final traumatic event occurred in 2001. There was a report that a soldier from the Holsworthy Army Barracks was wanted in relation to a double murder. He was attempting to escape from police who were in pursuit. There was a high speed police chase. The offender had driven through Gundagai where he had managed to evade the police and he was then being followed by members of the Gundagai Highway Patrol.
17. All available highway patrol officers from Wagga Wagga were directed to make their way to the Hume Highway to intercept the offender. The plaintiff drove to the village of Tarcutta. He had been told that the offender was driving south towards Tarcutta and that he was driving on the incorrect side of the carriage way at speeds of up to 200 kph. As most motorists who travel the length of the Hume Highway know, there is a bridge near or in Tarcutta which takes traffic over Tarcutta Creek. The plaintiff's affidavit continues thus: "I travelled to a point on the carriageway about 50 metres south of the double lane bridge at Tarcutta and parked my highway patrol sedan at roughly 90 degrees to the carriageway and in the centre of the roadway. 236. I left the emergency roof bar lights and headlights in my police vehicle activated and the engine running. I exited the vehicle and began directing northbound traffic to stop and get off the carriageway. I observed that Senior Constable Michelle Steele from Tarcutta Police Station, was approximately 100 metres south of my location with her police departmental vehicle, was also trying to stop northbound traffic and get them off the carriageway. I was attempting to force civilians to drive down a grass embankment, which was on their western side to put as much distance as possible between them and the offender whom I believed at that stage had entered Tarcutta from the northern side and was travelling at high speed on the incorrect side of the carriageway in the direction of my location. 237. I ran up to a small red sedan driven by a female and ordered her in a loud voice to drive her vehicle off the carriageway and down the grass embankment at once for her own safety. Her vehicle was stationary in the single northbound lane and just as she moved the vehicle to the gravel edge of the carriageway, I could hear a loud roar from the engine of a vehicle as he came onto the bridge at Tarcutta. I believed it was the soldier's vehicle. I turned to my left and looked behind me and towards the bridge and saw a white ute travelling at a speed I estimated to be between 140 and 160 kph. I froze momentarily and looked directly at the offender, and he was looking directly at me. As he came off the bridge, I saw his hands rotate the top of the steering wheel to the right and drive the utility directly at me. 238. At that moment, I believed I was about to be hit and killed by the utility. I screamed loudly, and somehow managed to move close to the driver's side of the red car that I had been trying to move off the carriageway. I had no other place or time to retreat. I turned my head and saw the front of the utility collide with the front offside of my highway patrol sedan which caused a loud explosion. Debris began flying off my police vehicle and the offender's utility. I watched as the offender lost control of the utility and he passed within millimetres of my legs and torso. As he travelled past my legs, I felt the heat coming off the engine and exhaust. I watched the offside front and rear wheels of the utility begin lifting into the air and the utility travelled across the carriageway to the southbound lane. The driver had lost complete control of the vehicle as a result of the high speed impact with my patrol sedan. 239. I remember thinking that the offender was not going to survive the impact. The utility continued across the carriageway, crashing through farm fencing and rolling down an embankment. A number of uniformed police and detectives ran after the vehicle and arrested the offender who escaped with minor injuries."
18. In [241] the plaintiff relates that his symptoms including shaking, buzzing in his ears, tinnitus, a feeling of extreme weakness in his legs and feeling cold and clammy. He said that he was extremely frightened by what had just happened, and he realised that if the utility had collided with him, he would not have survived such a collision. One can wholly accept that that was a life threatening situation, and one can readily accept the plaintiff actually feared for his safety, especially when he initially perceived that the offender was driving directly at him before the offender collided with his police vehicle.

Resignation

1. The plaintiff continued in his affidavit describing how his ability to work as a police officer deteriorated. That is consistent with what was observed by Sergeant Harvey. The plaintiff also gave evidence in his affidavit of how he sought to avoid work if he could. One instance he gave of seeking to avoid work was when he was called to a break and enter in progress at an address in Thompson Street, Wagga Wagga. When he arrived at the scene, he believed that the offender was in the house and had access to weapons, which he thought included knives. The plaintiff did not seek to enter the house and confront the offender, but allowed him to escape from the house after a period of ten to 15 minutes. He was avoiding interaction with the offender.
2. Because of his perception of how he was feeling and his attempts to avoid work and because of other psychic symptoms, he decided to resign. In [283] of his affidavit, the plaintiff said this: "By the time [of] my resignation, I had constant feelings of intense sadness, numbness, fear, nervousness and anxiety. I was conscious of substantial mood swings. At times I felt light headed. I was drinking too much alcohol. I could no longer cope with the duties of a police officer. In the months leading up to my resignation I often found myself not wanting to be involved in any aspects of policing. From having to deal with correspondence for hearing jobs broadcast over the police radio either in a police vehicle or in the office, my reactions were always similar, my heart rate increased, my legs started to feel weak, I started to feel sick, I started taking slow, deep breaths to try and calm myself. Most of the time nothing serious was going to happen. 284. These symptoms often were magnified if I found myself fatigued from shift work or extended working hours. I waited for other police to acknowledge jobs first before indicating that I was responding. In the months leading up to my resignation, I found it difficult to think clearly and quickly. I could form rough plans of actions whilst on route to a job but I was finding it difficult to put those plans into effect in an orderly and calm manner once I arrived."
3. Eventually, the plaintiff resigned. He submitted a report giving his resignation. That report is annexure S to the plaintiff's affidavit and exhibit SS in the proceedings. The operative part of the document is this: "I wish to tender my resignation effective the 28th of August, 2002. I would like to acknowledge the efforts of management and staff at the Wagga Local Area Command for their support and friendship over the past six years and I wish everyone associated with the Wagga LAC success wherever their careers take them." The Local Area Commander accepted that resignation and indicated that it should be acted upon by the Staff Officer.
4. In his statement of 15 August 2016 Mr Harvey said this: "20. Sometime in late 2002 or in the first half of August 2002 Russell told me he had submitted his resignation. I recall that we had about two conversations concerning his resignation before he left. I said to him words to the effect: 'Are you sure about this? Are you sure you are doing the right thing? You are walking away from what's been your life. I understand you are not as keen as you were. Do you want to do something different than highway patrol?' 21. I was concerned that Russell was leaving the police rather than seek some psychological help. I feared that if he just resigned he would not seek the help which I thought he needed. I didn't think Russell was aware of the assistance he could get in the police, which was fairly limited, but I feared that if he just left he would not seek any psychological assistance." It appears that Mr Harvey's view was correct because there is no evidence that following upon or at any relevant time the plaintiff sought psychological assistance. By, "relevant time," I mean at some time shortly after his resignation.
5. In his statement of 12 September 2016 Mr Hunt said this: "15. I recall Russell telling me in about mid 2002 that he and his wife had purchased a fresh chicken business and that he was leaving the Police Service to work in that business. At that time I considered that Russell was leaving to get away from policing. I thought he was no longer mentally fit to carry out many aspects of his duties, especially attending fatal motor accidents. I believe [if] Russell had to attend further such incidents he may have suffered serious psychological harm. 16. I told Russell he should consider looking into getting out on a pension. I did not go into details of what I believed he should do but I do recall thinking that Russell could well be eligible to get medically retired on psychological grounds and receive a hurt-on-duty pension. 17. However, Russell appeared to want to get out of the police as fast as possible and simply resigned and left the Police Force in August 2002."
6. Having been dealing with these matters on the bench for over 25 years now, I can accept that if the plaintiff had applied to be medically retired the delay involved would have been in the order of 12 months. That the plaintiff had the option of seeking to retire on medical grounds cannot be doubted. It clearly was brought to his attention by Mr Hunt. Furthermore, at the time that he resigned the plaintiff was required to complete a Separation Questionnaire. He was given the options of resigning, of optional retirement (55 years and over) of disengagement (50-55 years), of being medically discharged HOD or being medically discharged (not HOD). He opted for a simple resignation. The reason that he gave to the police was, "Other employment considered more attractive." That was the Lenard's Chicken franchise business which the plaintiff and his wife had purchased in 2001. At the time of his resignation the plaintiff made an Application for Resignation or Dismissal Benefits. The current defendant paid to him $52,327.07 after tax and deferred his basic superannuation benefit of $21,336.09.

Subsequent medical complaints

1. Despite the fact the plaintiff's resignation took effect on 28 August 2002, the first evidence of any medical complaint is of a complaint made to Dr Daniel Sada of the Morgan Street Healthcare Clinic at Wagga Wagga on 22 October 2012, over ten years later. The plaintiff first attended upon the Morgan Street Healthcare Clinic on 31 January 2009. He again attended there on 22 September 2009, 1 October 2009, 6 November 2009, 27 April 2010, 29 June 2010, 28 May 2011, 29 September 2011, 20 October 2011, 1 November 2011, 11 November 2011, 30 November 2011, 15 December 2011, 19 July 2012 and 4 October 2012. On that occasion, the plaintiff saw Dr Sada and said that his daughter was having a new baby and that the plaintiff needed a vaccination for whooping cough. He told Dr Sada that he was otherwise well. On 22 October 2012 the plaintiff told Dr Sada that he was feeling depressed, that he had irrational fears and that he was suffering from panic attacks. The doctor's notes continue thus: "Has had these episodes over the years. Comes and goes. Recently becoming more pronounced and prolonged and affecting his daily functioning and work. No past medical history or obvious family history of depression but thinks his father might [have] got it."
2. Dr Sada referred the plaintiff to a psychologist, Ms Katrina Andrews. Ms Andrews' report of 31 October 2012 is exhibit 6. The relevant part of her report says this: "Russell initially presented (as per your referral) reporting symptoms of mixed anxiety and depression. Russell was unable to identify any specific precipitating factors for this episode. Apparently maintaining his symptoms are Russell's self-critical thoughts and difficulty in managing stressful situations. These issues exist on a background of what Russell reported as 'lifelong' anxiety and depression, as well as the death of his father in 2009 which Russell stated he still had not dealt with. However, ameliorating these concerns appears to be a supportive marriage relationship, Russell's apparent willingness to engage in treatment, and his recent decision to start his own photography business." Ms Andrews proposed to treat the plaintiff with six sessions of cognitive behaviour therapy and "behavioural activation".
3. The plaintiff remained under the care of doctors at the Morgan Street Healthcare Clinic until 15 July 2015. At times, he made complaints of psychiatric or psychological symptoms and appears to have been treated long term with Lexapro which I understand to be prescribed for psychiatric or psychological symptoms. At one time Dr Nahed Habib of that practice referred the plaintiff to another psychologist, Ms Josephine Cannon. A report of 2 August 2014 says this: "Mr Russell Johnson attended an initial consultation with me on 10 July 2014. Mr Johnson's affect was very flat and his anxiety level was considered high. Mr Johnson told me that he had experienced two panic attacks in the last week. Mr Johnson reported a childhood full of fear and emotional tension within the family and his father was described as being intimidating and overbearing. Mr Johnson stated he has worked in the NSW Police for 16 years and moved to Wagga Wagga in 1995. Mr Johnson stated when he was working in Wollongong in the early 1990s, he had a 'complete breakdown.' The DASS (Depression Anxiety Stress Scales) was administered to Mr Johnson during this consultation. The DASS is a checklist of symptoms resulting in three scores reflecting the client's current depression, anxiety, and stress level. Mr Johnson's test results showed his anxiety was in the moderate range; his depression and stress were both in the normal range. (Mr Johnson said he has been feeling better in the last three days. The DASS results reflected his current mood. That said, there may be under-reporting of symptoms as well.)" The report goes on to discuss future treatment. By 10 December 2014 when the plaintiff completed his treatment by Ms Cannon his depression, anxiety, and stress were all recorded as being "normal."
4. On 15 July 2015 the plaintiff told a doctor at the Morgan Street Healthcare Clinic that he wished his file to be transferred to a medical practice at Estella which was the suburb of Wagga Wagga in which he was then living. He appears there to have come under the care of a Dr Anna Selga. Sometime in December 2015 the plaintiff attended a reunion. A report of Ms Cannon of 25 June 2019 contains this matter: "At a reunion luncheon for past and current serving police in the Sutherland Shire Mr Johnson attended in December 2015, he had a casual conversation with a former work colleague. It was from this conversation that Mr Johnson realised his work-related traumatic experiences and subsequent psychological illness should have deemed him unsuitable for the NSW Police and a medical discharge instead of a resignation would have been a more appropriate process. Mr Johnson was put in contact with yourselves [solicitors] to address this issue."
5. It appears that the plaintiff saw Dr Anna Selga on 11 December 2015 and the DASS scores for depression, anxiety and stress were all extremely severe. That is a remarkable turnabout in a 12-month period. That led Dr Selga to refer the plaintiff back to Ms Cannon who saw the plaintiff again on 7 January 2016. Ms Selga reports that by 17 February 2016 the plaintiff's depression scale was severe, his anxiety scale was still extremely severe, and his stress scale was also severe.
6. As I have mentioned earlier, the plaintiff was sent by his solicitors to see Professor McFarlane in Adelaide on 21 July 2016 and also sent to see Dr Anthony Dinnen, a consultant psychiatrist, at Edgecliff on 18 August 2016. Dr Dinnen's first consultation with the plaintiff lasted an hour and a half.

Consideration

1. At issue is whether the plaintiff's hurt-on-duty claim form, exhibit V, and/or Inspector Winson's report of 11 August 1997, exhibit QQ, satisfy or satisfies the requirements of s 10B(2)(a) of the Act. Perhaps a little background history of the law ought be given. The locus classicus of the entitlement to workers compensation can be found in s 1 of the Workmen's Compensation Act 1925 (UK). Subsection (1) commences thus: "If in any employment, personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the provisions hereinafter contained …" The original test was that there be personal injury by accident arising out of and in the course of the employment. However, it has not, since 1926, been the law in New South Wales, that the injury be by accident. The reason for that is fairly well known. The leading decision is Fenton v Thorley [1903] AC443; (1903) 5WCC1. The word "accident," does not necessarily involve the idea of something fortuitous and unexpected. The word "accident," was used in the legislation in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which was not expected or designed, or as denoting or including "any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence", per Lord Shand at p 451, "or any unintended and unexpected occurrence which produces hurt or loss", per Lord Lindley at 453. "A man might deliberately bend over to pick up a tool but he did not, when he deliberately bent over intend to cause himself a back strain. It was only if the worker intended to cause himself injury that the event could not be described as an accident." In other words, the concept of "injury by accident," amounted to no more than "injury" unless the injury was wilfully self-inflicted. That became the law in New South Wales.
2. In Lyons v Master Builders Association of New South Wales Pty Ltd (2003) 25 NSWCCR 422, I pointed out that the receipt of an injury or the injurious event is to be distinguished from pathology arising from the event. The word "injury" in the Workers Compensation Act 1987 refers to both the event and the pathology arising from it. One can distinguish, therefore, between an event or occurrence and the injury resulting from that occurrence which could be characterised by the use of the synonym "pathology." In the Act with which I am currently dealing, one can distinguish between the event or incident, the pathology resulting from the event or incident and the infirmity which must result from the injury. The real question is, "What is the meaning of the word 'injury'?" as used in s 10B(2)(a).
3. The matter is not without authority. The matter was considered by the Court of Appeal in SAS Trustee Corporation v Woollard [2014] NSWCA 75. That case contains two relevant judgments. The first judgment is that of Bathurst CJ with whom Tobias AJA agreed. The second judgment was given by Basten JA. That case was an application for an order in the nature of a of a writ of certiorari from two judgments of the Industrial Court of New South Wales. At the commencement of his reasons, the Chief Justice pointed this out: "4. In a judgment dated 25 June 2012, Woollard v SAS Trustee Corporation [2012] NSWIR Comm 51 (the first decision), a majority of the Industrial Court concluded that in the case of a psychological illness, where it is a disease of gradual onset, notification of symptomology sufficient to demonstrate the onset of a disease was sufficient to satisfy the above described notice of requirement. 5. In a subsequent judgment delivered on 8 March 2013, Woollard v SAS Trustee Corporation (No. 2) [2013] NSWIR Comm 16 (the second decision), the Industrial Court determined that CPTSD was a disease of gradual onset and that Mr Woollard had notified the Commissioner of Police of symptomology sufficient to demonstrate the onset of the disease, thus complying with s 10B(2)(a) of the Act…" At [32] his Honour said this: "In the first decision, the majority of the Full Bench (the majority) considered that the upon the proper construction of s 10B(2)(a) of the Act, different notification was required in respect of an injury received in what they described as a 'frank incident,' as compared to a disease of gradual onset. In the former case, they said it was necessary to notify an event, an injurious consequence and a connection between the two. By that, their Honour's presumably meant that both the event giving rise to the injury and the injury which resulted had to be notified. However, they stated that in the case of an infirmity of body or mind caused by the gradual onset of disease, notification was sufficient when it was of 'symptomology sufficient to demonstrate the onset of the disease'."
4. At [43] his Honour recorded that both parties to the proceedings in the Court of Appeal agreed that the majority in the first decision were incorrect, in concluding that a different form of notification was required in the case of a physical injury, compared to notification of a disease of gradual onset. Clearly, his Honour believed that there was only one relevant test. Commencing at 63 his Honour said this: 63. However, the infirmity of body or mind referred to in s 10B(2)(b) of the Act is the same infirmity referred to in s 10B(2)(a). Thus, if no notice is given of an injury causing that infirmity there is no infirmity to which s 10B(2)(b) can relate and there is no basis on which the applicant can exercise its powers and functions under s 10B(2)(b). 64. The critical question is thus what is meant by "injury". The parties in my opinion were correct in their submissions that there was no basis for giving the word a different meaning depending on whether the injury is a frank (physical) injury or a disease of gradual onset. In each case what must be notified is an injury. If, contrary to Mr Woollard's submissions, symptoms of a subsequently discovered disease cannot constitute an injury, then irrespective of whether the injury was a physical injury or a disease of gradual onset, the notice requirements would not be satisfied. In concluding in the first decision that it was consistent with the purposes of the Act to give a different meaning to the word "injury" depending on the nature of the injury, their Honours committed the error of imputing to the legislature an intention which they regarded as desirable rather than one which could be derived from the legislation considered in context. 65. It is also important to note that s 10B(2)(a) of the Act does not require notification of the incident which caused the injury. That would be relevant to the task of the Commissioner of Police under s 10B(3) in determining whether the officer was hurt on duty. As I indicated, that is presumably why the form prescribed by the Regulations required notification of the incident which resulted in injury. However, notification of the incident is not a requirement of s 10B(2)(b). 66. There remains the question of what constitutes an "injury". The word "injury", in my view should not be given a narrow construction. It is wide enough to encompass a psychiatric disorder as well as a physical injury. This construction is consistent with the definition of "injury" in the relevant workers' compensation legislation as existed at the time s 10B was introduced into the Act (Workers' Compensation Act 1926 (NSW)) and s 10 being amended to both delete the expression "wound or injury" and add the definition of "disabled member of the police force". The definition of "injury" in the Workers' Compensation Act 1926 was in the following terms: "injury means personal injury arising out of or in the course of employment, and includes - (a) a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor; and (b) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration; but does not, save in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act, 1912, applies, include a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act, 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined." 67. In circumstances where it was stated in the Second Reading Speech in respect of the Amendment Act that the intention was to confer benefits in circumstances where a worker would be entitled to workers' compensation benefits (see par [21] above) it seems appropriate and consistent with the workers' compensation legislation, to include a psychiatric disease within the definition of "injury". That also enables s 10B(2) and s 10B(3) of the Act, which incorporate the concept of "hurt on duty", to be read harmoniously. 68. Whilst that may lead to some awkwardness of construction of s 10B(2)(b) of the Act in circumstances where the injury and infirmity of mind are identical, that does not in my opinion alter the position. The same consequences could follow from a physical injury, for example, with the loss of a limb, both the injury and the resulting infirmity are the loss. 69. Therefore CPTSD can be an injury under the Act. However, it was not notified. What was notified was there were symptoms which may have been consistent with the disease. The underlying cause of these symptoms was either not diagnosed or misdiagnosed at the time of Mr Woollard's retirement and only diagnosed some years later as symptomatic of post-traumatic stress disorder. It does not seem to me that these symptoms could be described as the relevant injury for the purpose of s 10B(2)(a) of the Act. 70. In this regard it is important that for the purposes of s 10B(2)(a) of the Act, the relevant injury must be causative of the infirmity of body or mind. The symptoms reported may have been the result of the infirmity but they could not be said to be the cause of it.
5. I point out that what is not required is notice of the incident or event relied upon by the plaintiff. What is required is notification of the, "injury." Notification of the symptoms of the injury is also not in itself sufficient. So much is clear from his Honour's judgment. It is clear from [69] that his Honour accepted that chronic post-traumatic stress disorder can be an injury but that was not notified by the former member of the New South Wales Police Force in Woollard.
6. As I read the judgment of Basten JA, his Honour agreed with the propositions that it was insufficient to merely notify symptoms of the condition and he also agreed it was not necessary to notify the incident or event upon which the former member of the Police Force was relying. His Honour said this: 89. There may well be a fine distinction to be drawn between the concept of incapacity and that of infirmity, where the statute envisages that the latter will cause the former. It is, however, the infirmity which must be specified by the STC as the cause of an incapacity to perform functions as a police officer (s 10B(1) and (2)(c)) and which must have been caused by the member being hurt on duty, as required to be certified by the Commissioner of Police, pursuant to s 10B(3)(a). Because the concept of "hurt on duty" picks up the definition of "injury" in the Workers Compensation Act, and because the Commissioner must certify the "date or dates" on which the member was hurt on duty (or injured) there is a distinction drawn between the injury and the infirmity. The injury is to be related in some way to the course of police duties; the resultant or consequential infirmity is to be related to the ongoing capacity (or incapacity) to perform police duties. 90. In the case of a physical injury these concepts will usually not give rise to difficulty. The injury could be a broken limb resulting from a motor vehicle accident which, even when healed, leaves the officer with an infirmity (or disability) which precludes the officer personally performing police duties. The same exercise may be undertaken with respect to some psychological injuries, including those which can be related to a specific event or series of events or particular conditions of employment. 91. In some circumstances there may be a significant lapse of time between the injury and the infirmity (or incapacity). For example, a broken joint may heal successfully, but lead to disabling arthritis years later. The problem with psychological injuries is different, because there may be a delayed onset of the injury itself. (The extent to which that is possible with respect to post traumatic stress disorder may be controversial.) The problem in such a case is that the injury and the infirmity or incapacity may be simultaneous, but the event giving rise to the infirmity (which must be identified in order to determine whether the officer was hurt on duty) may be in the past and, because no identifiable injury occurred at the time of the event, the Commissioner will not have been notified until more than six months after the events giving rise to the injury or infirmity. Nevertheless, the requirement of notification "within 6 months of receiving the injury" may be satisfied if the term "injury" can be equated with a diagnosable psychiatric condition. 92. The primary submissions of Mr Woollard were that the word "injury" in s 10B(2)(a) meant either or both of: (i) an event causing symptoms physical or psychological or both; or (ii) the onset of symptoms physical or psychological or both. This language (quite apart from its ambiguity) should not be accepted, unless the symptoms are related to the event in such a way as to demonstrate a causal connection. The purpose of notification within a given period is to allow the Commissioner to determine whether the injury arose out of or in the course of the exercise of police duties. The mere fact that the person was a police officer at the time an injury was suffered does not allow such an exercise to be undertaken. In a practical sense, what must be notified with respect to psychological injuries is, for example, a traumatic event in the course of police duties, followed by symptoms of psychological distress. However, the psychological distress must be sufficient to render the officer incapable of discharging his or her duties of office. Thus, although the certificate may be granted by the STC after the member's discharge, the certificate must state that the member "would have been incapable" of discharging those duties "at the time of the member's resignation or retirement": s 10(1), disabled member of the police force, (b) and s 10B(2)(b). Accordingly, the relevant incapacity cannot arise after the resignation or retirement. 93. In any event, the proposed construction does not assist Mr Woollard, because of the dual requirements of notification, namely that it be before the member's resignation and within six months of receiving the injury. The condition can only be satisfied if the injury had been received during the time he was serving as a police officer. If the injury is to be equated to the onset of disabling symptoms, they must be apparent and notified before discharge. 94. In theory, it is possible that the circumstances constituting the injury could have been notified to the Commissioner within the relevant period, although it was not then properly diagnosed. An officer with the STC appears to have accepted that any "psychological or psychiatric complaint linked to" incidents which occurred in the course of duty and "causative of the alleged infirmity of post-traumatic stress disorder", could constitute a relevant injury, if notified. However, there was no evidence of any sufficient notification in the present case. Accordingly, the requirement was not satisfied.
7. The problem here is that on the plaintiff's case the diagnosis of the plaintiff's illness as PTSD/major depressive disorder was not made until some 14 years, or a bit less, after he resigned his office as a police officer; that is, there is in this case the problem of delay as referred to in [91] of Basten JA's judgment. However, his Honour went on to say that: "Nevertheless, the requirement of notification 'within six months of receiving the injury' may be satisfied if the term 'injury' can be equated with a diagnosable psychiatric condition." However, in [92] his Honour said this: "In a practical sense, what must be notified with respect to psychological injuries is, for example, a traumatic event in the course of police duties, followed by symptoms of psychological distress. However, the psychological distress must be sufficient to render the officer incapable of discharging his or her duties of office."
8. It was submitted by Mr O'Rourke, for the plaintiff, that his Honour did not mean by that that the incapability flowing from the traumatic event giving rise to symptoms of psychological distress must immediately follow but there might be the delay between the two. I accept that submission. However, that is merely an argument that his Honour was rehearsing.
9. Here, the plaintiff himself did report an injury in exhibit V. He reported an, "Acute stress reaction." It is accepted by Professor McFarlane for the plaintiff and by Dr Dunn for the defendant that that is the equivalent of an adjustment disorder. It is not a diagnosis of either PTSD or a Major Depressive Disorder or an episode of Major Depression Disorder. I accept that it is not necessary to provide an actual diagnosis, but something that a layman, such as the Commissioner of Police, should be able to determine was a report of the relevant injury. I went into some detail about what was actually being reported by exhibit V and the accompanying documents because what those documents show is that what was being recorded was of an emotional response to certain events which could not be a cause of PTSD and are not alleged to have been the cause of a Major Depressive Disorder or an episode of a Major Depressive Disorder. I am not satisfied that exhibit V is a relevant notice.
10. That requires me to consider whether exhibit QQ is a relevant notice. It does advise me of an incident or event upon which the plaintiff relies as being causative of his PTSD. So much is accepted by Professor McFarlane and is implicit in what is said by Dr Dinnen. It refers to police being, "emotionally traumatised," but mere emotional upset is not an injury and such is a common human response to certain life events. See Zinc Corporation Limited v Scarce (1995) 12 NSWCCR 566, a decision of the Court of Appeal. The report does say that in particular the plaintiff and Sergeant Hunt were particularly emotionally traumatised. That does not mean that they sustained any injury. True it is the plaintiff was seen by the grief counsellor, Ms Kelleher, and was reviewed by Messrs O'Brien and McCloskey of the Police Psychology Section on 14 August 1997. There is no evidence from any of those three persons that the plaintiff suffered an injury. Without knowing more, one would not know whether the event of 9 August 1997 caused any injury at all to the plaintiff. Merely saying the person is psychologically upset or emotionally disturbed does not mean, as I have said, that they were injured. There is nothing in exhibit QQ to say that the plaintiff was injured, merely speculation on the part of Inspector Winson that the plaintiff might need assistance in dealing with emotional upset.
11. Many of us in our lives are upset by events. Dealing with the death of one's loved ones is emotionally draining and upsetting. Grief is emotionally upsetting but grief and mourning are not injuries. They are normal human reactions. I am not persuaded on the balance of probabilities that exhibit QQ was a notice of injury for the purposes of s 10B(2)(a) of the Act. The document ex facie does not purport to be any such notice nor could in my view Mr Winson give notice of an injury of which he was unaware and of which he had not been told by the plaintiff himself.
12. The matter might be looked at in another way. The evidence before me is clear that the condition of post-traumatic stress disorder is the result of the cumulative effect of traumata. For example, on p 33 of his primary report Professor McFarlane says this: "In summary, studies have shown that the effect of trauma is cumulative, in that previous exposure to trauma signals a greater risk of mental disorder from subsequent trauma such as combat … The impact of cumulative trauma has demonstrated that the number of trauma types experienced is associated with significantly greater probability of disorder … providing evidence about the risk to police of the multiple types of trauma exposure they experience in the course of their duties. With an officer who has a long career, such as Mr Johnson in general duties and highway patrol, the known risks of cumulative exposure to traumatic events are an inevitable consequence …" On p 35 of his report Professor McFarlane said this: "It would appear that his first episode of a full-blown post-traumatic stress disorder was in response to the death of the infant child, Elizabeth, on whom he attempted CPR." A little further on that page the professor said this: "Once he had developed a post-traumatic stress disorder, the further and ongoing stresses that he was exposed to led to the increasing chronicity and entrenchment of his symptomatic distress. These particularly would have included his involvement in accidents such as the death of a nurse on the Olympic Highway in 1998 and a further accident where two elderly people were killed in a head-on collision on a dual carriageway at Tarcutta when a drunk driver drove on the wrong side of the road. The incident where Mr Johnson was nearly hit by a soldier who was wanted for attempted murder who was driving at a very high speed was also an exacerbating factor to Mr Johnson's symptoms." Again, the professor is speaking about the cumulative effect of the traumata to which the plaintiff was exposed.
13. I raise that consideration because of this. If instead of soldiering on as a police officer in the Highway Patrol at Wagga Wagga after the event of 9 August 1997, the plaintiff had resigned, he may well not have gone on to develop PTSD as such. Clearly, Professor McFarlane believes that the plaintiff's experience in August 1997, of which he only learnt from what the plaintiff told him on 21 July 2016, was a full-blown episode of PTSD but it clearly did not affect the plaintiff's ability to work instanter and the plaintiff worked on from August 1997 to August 2002, a period of five years. In other words, it is speculation to an extent as to whether the symptoms which the plaintiff said he developed after the event of August 1997 satisfy the four criteria for PTSD. Those criteria of course include, according to DSM IV TR, "clinically significant distress or impairment in social, occupational, or other important areas of function." However, the DSM-IV-TR refers to the fact that the condition may have a delayed onset if the symptoms are at least six months after the stressor. According to DSM-5, the disturbance must cause clinically significant distress or impairment in social, occupational or other important areas of functioning. DSM-5 does not talk of delayed onset but of "delayed expression" but this appears to be a mere change of verbiage rather than of substance. Again, I point out that if the plaintiff had not been exposed to further traumata in the course of his police work he may not have developed PTSD at all.
14. The final condition that I should discuss of course is the allegation of Major Depression and I am prepared to consider under that the concept of an episode of Major Depressive Disorder. At p 12 of his report, Professor McFarlane said this: "The diagnosis of a major depressive disorder was made because he had periods that had lasted intermittently for more than two weeks when he had an enduring sense of depressed mood and loss of interest in his environment. These periods of mood disturbance lasted throughout the day. At these times his sleep disturbance worsened. He had a significant degree of agitation as well as feelings of fatigue and loss of motivation. At these times his feelings of guilt would become more severe. His capacity to concentrate and focus worsened when his mood was disturbed increasing his degree of indecisiveness. He did not have thoughts of death [or] suicidal ideation. He had tended to significantly gain weight and overeat, having put on some 12 kilograms in the last decade. However, it was unclear that this pattern of weight gain had specifically been related to his mood disturbance. He had recently lost a substantial amount of weight with his regular attendance at the gym. These symptoms were significant because of impairment and occupational function. Only five of the symptoms are required to make the diagnosis of a major depressive episode. He did not appear to have had enduring periods of severe mood disturbance. Hence, his mood disturbance was only of a moderate degree." Even if the plaintiff had reported five of those symptoms at one time, one might diagnose a Major Depressive Disorder. However as the Court of Appeal made clear, the mere reporting of symptoms is insufficient. What must be reported is the injury itself. Furthermore, Professor McFarlane makes it clear that the diagnosis of major depressive disorder is because of the effects of the PTSD. Since the plaintiff did not report PTSD, it cannot be said that he reported a feature of it, the development of a major depressive disorder or an episode of a major depressive disorder.
15. The plaintiff did not report depression at the time, or if he did, there is no evidence of it sufficient to constitute the required notice. Therefore, I am not persuaded on the balance of probabilities that exhibit QQ is capable of giving notice of a Major Depressive Disorder, a Major Depressive Illness or an episode of Major Depression Disorder.
16. No one needs any further reasons, do they? OWER: No, your Honour. O'ROURKE: No, your Honour.
17. HIS HONOUR: I have inquired of counsel for parties for any further reasons for judgment that are required and I am told that none is so required. For those reasons, I confirm the decisions of the defendant referred to in the letters of 28 February 2018 and 11 October 2018 that are annexed to the statement of claim. OWER: May it please the Court. HIS HONOUR: Are those orders sufficient for your purposes? OWER: It is, your Honour. HIS HONOUR: And for yours, Mr O'Rourke? O'ROURKE: Yes, your Honour.

Amendments 09 July 2020 - [30] delete "late" preceding "Mr Ken Madden". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 July 2020