McKenzie v SAS Trustee Corporation [2009] NSWIRComm 177 | Case summary

JUDGMENT [2009] NSWIRComm 177 BACKGROUND 1 On 12 February 1990 Detective Senior Constable Anthony McKenzie tendered his resignation from the New South Wales Police Service effective from 11 March 1990. His letter of resignation was directed to the Patrol Commander at Armidale. He said in his letter of resignation that he wished to finish his final year of law studies on a full-time basis. 2 Mr McKenzie commenced working as a police officer in April 1979, being posted to the Maroubra police station. In April 1982 Mr McKenzie was transferred to the Detective's branch and assigned to the Darlinghurst police station where he remained until October 1982. Between October 1982 and March 1985 he worked as a Detective at the Randwick police station. From March 1985 he was transferred to the Detectives at Maroubra police station where he stayed until December 1985. Between January 1986 and March 1987 Mr McKenzie performed duties as a Detective at the Rose Bay police station before transferring to Armidale Detectives in March 1987 where he remained until his resignation. 3 In his 11 years' service as a police officer at these locations, Mr McKenzie witnessed many incidents that he said distressed him and ultimately led him to be unable to perform duties as a police officer. In August 1989 he attended his general practitioner for the treatment of stress and anxiety related symptoms. He was unable to attend work on 9 September 1989 because he believed he was suffering from work related stress. From that date until approximately 20 December 1989 Mr McKenzie remained on sick leave and thereafter he appeared to be on annual leave or leave without pay until the date of his resignation in March 1990. In September 1989 Mr McKenzie filed a Hurt on Duty claim and in late November 1989 was directed to attend an examination by Dr J A Roberts, Psychiatrist. 4 After leaving the Police Service, Mr McKenzie continued his legal studies with the Solicitors' Admission Board and in 1991 was admitted as a solicitor of the Supreme Court of New South Wales. Between July 1991 until December 2003, when he ceased practice, Mr McKenzie worked in a number of firms as an employed solicitor and a solicitor in his own right. After ceasing legal practice, Mr McKenzie mostly stayed at home and did not work again. In 2006 he separated from his wife and in 2008 they were divorced. APPLICATION FOR SUPERANNUATION ALLOWANCE 5 On 12 June 2006 Mr McKenzie made application for a superannuation allowance pursuant to the provisions of s 10B(2) of the Police Regulation (Superannuation) Act 1906. In this application Mr McKenzie claimed that he was hurt on duty whilst a police officer suffering post-traumatic stress disorder and depression. He stated that the reasons for his resignation were stress and an inability to cope with police work. 6 In June 2007 the Police Superannuation Advisory Committee declined to issue a Certificate of Incapacity in respect of the claimed infirmities of post-traumatic stress disorder and major depression rendering Mr McKenzie incapable of performing police duties from the date of his resignation. Mr McKenzie then pursued a dispute against that decision before the Disputes Committee. In July 2008 the Disputes Committee, pursuant to s 67 of the Superannuation Administration Act 1996, determined the dispute by confirming the decision of the Police Superannuation Advisory Committee to decline the application. The Disputes Committee provided the following reasons for this determination: 1. Mr McKenzie was able to complete his legal studies and practice for many years as a solicitor immediately after his resignation. . There is no contemporaneous medical evidence that Mr McKenzie was suffering any diagnosable psychiatric condition at the date of his resignation on 11 March 1990 and in fact, the only evidence is to the contrary. 3. Mr McKenzie did not give any history of stress symptoms arising from exposure to traumatic events when he saw Dr Roberts in 1989 which would give rise to a diagnosis of PTSD at the time of resignation. 4. Mr McKenzie failed to disclose to all subsequent medical practitioners who have examined him the Law Society of NSW investigation and subsequent findings which appear to coincide to some extent with the manifestation of his current symptoms. 5. Having regard to the foregoing, it would be unsafe to accept Mr McKenzie's application. APPEAL 7 In September 2008, pursuant to s 88 of the Superannuation Administration Act, Mr McKenzie filed a superannuation appeal in the Industrial Court of New South Wales seeking to overturn the decision of the Disputes Committee made in July 2008. In that document Mr McKenzie said he was appealing against the decision of the SAS Trustee Corporation declining to issue a Certificate of Incapacity in respect of claimed infirmities of post-traumatic stress disorder and major depression on the basis that, at the date of his resignation on 11 March 1990, he was incapable of performing police duties. The grounds of appeal and the orders sought on appeal were as follows: 1. The Respondent erred in its decision not to issue a Certificate of Incapacity in respect of claimed infirmities of post traumatic stress disorder or major depression or both. 2. The Respondent in reaching its decision considered irrelevant matters, namely: (a) That the Applicant was able to complete his legal studies after his resignation from the NSW Police Force. (b) That the Applicant practised as a Solicitor after his resignation from the NSW Police Force. (c) That the Applicant failed to disclose to all subsequent medical practitioners who have examined him, the Law Society of NSW investigation and findings. 3. Medical evidence, both contemporaneous with the resignation and subsequently, show the Applicant to have a psychological symptom complex as at the date of his resignation from the NSW Police Force sufficient to demonstrate that, at the time of his resignation, he was incapable of performing the duties of his office as a police officer either because of post traumatic disorder or major depression or both. 4. The Respondent failed to give any or any sufficient weight to the fact that the Applicant was attending upon general practitioners and a psychiatrist for the treatment of psychological symptoms and was prescribed Benzodiazepine "Frisium" for the treatment of those symptoms. 5. The Respondent failed to give any or any sufficient weight to the opinions of medical practitioners specialising in psychiatry that, at the time of the Applicant's resignation from the NSW Police Force, he was incapable of performing the full duties of his office due to post-traumatic stress disorder and major depressive disorder. The Orders I am seeking are as follows: 1. That the Court determine that the Applicant at the time of this resignation on 11 March 1990 from the NSW Police Force would have been incapable from the infirmity of body or mind (due to post traumatic stress disorder and/or major depression) of discharging the duties of the Applicant's office at the time of his resignation (s 10B(2) Police Regulation (Superannuation) Act 1906 ). 2. The Respondent to pay the Applicant's costs. THE EVIDENCE OF MR AND MRS McKENZIE 8 Mr McKenzie provided an affidavit and in addition gave oral evidence. He was extensively cross-examined. At the time of giving his evidence he was aged 51 and in that evidence Mr McKenzie outlined his progression at different locations through the Police Service. In April 1979 he was a Probationary Constable and a year later became a Constable. In April 1984 he was made a First Class Constable and in April 1988 he became a Senior Constable. In 1984 he was transferred to the Detectives. 9 In his affidavit evidence, Mr McKenzie provided a number of details of accidents and incidents in which he had been involved and how they had affected him. Those incidents were: · In the early hours on Christmas Day 1980 he attended a car accident in which a female passenger's scalp had been sheared off while leaning her head out of the passenger window of the car. The female passenger's head had hit a telegraph pole. Mr McKenzie and another officer attended the scene for approximately one hour. On the next day, after being informed that the female passenger had died, he attended the station and completed a fatal accident incident and breach reports against the driver. He said he found the incident and its aftermath very distressing and the fact that it was Christmas Day made it worse. The incident was generally upsetting and he stayed at the police station, had a few alcoholic drinks and tried to pretend it did not happen. He was not offered counselling or de-briefing and said that, to this day, the image of the accident scene regularly came to mind. The incident was distressing at the time and continued to be distressing when the image was recalled. · In 1981 Mr McKenzie and another officer came across a road accident in which he found a nurse on the road who looked to be badly injured. The nurse appeared to have been the driver of a van and another car had collided with it. Mr McKenzie observed the driver of the other vehicle to be badly injured and unconscious. An ambulance had been called and Mr McKenzie called for additional police assistance. After the ambulance had removed the nurse and the driver of the other vehicle, Mr McKenzie went to the passenger side of the car and noticed a small patch of bloodied hair under the dashboard. On a closer look he saw part of a human head and realised that the passenger had been forced from the passenger seat and under the dashboard by force of the impact. The passenger was alive but badly injured and Mr McKenzie could not release the passenger from the car so police and fire brigade assistance was called. The driver of the car was charged with culpable driving and convicted and again Mr McKenzie did not receive any counselling or de-briefing. He said the incident continued to haunt him. He and his partner were the first to arrive at the scene of a horrific accident. For three or four days after the accident he constantly thought of it, was very upset and lost a lot of sleep. Over time his recollection became less frequent but continued to be vivid. He continued to be haunted because the passenger was discovered under the dashboard when that the car was about to be towed away with the passenger still inside. If that had occurred the car would not have been examined for an extended period and the passenger could have died. · One afternoon in 1981 Mr McKenzie was the observer in a paddy wagon when it was flagged down by a man who indicated that, in a block of units, his grandmother had just chocked to death. Mr McKenzie radioed for an ambulance then followed the man into a block of units where he observed a woman, aged between 60 - 70 years old, l on the floor who appeared to be dead. She was not breathing so Mr McKenzie gave her mouth-to-mouth resuscitation while his partner gave chest compressions. While he was giving mouth-to-mouth resuscitation he vomited into his mouth but was revived and an investigation into the accident resulted in Mr McKenzie and his partner receiving commendations. He did not receive any counselling or de-briefing in relation to this incident and even now, the incident often intruded into his thoughts. · These incidents occurred while Mr McKenzie was at the Maroubra police station. He said that, since the first incident, he had experienced nightmares and they regularly occurred over the years although their frequency had varied. He often experienced his nightmares in a semi-confused state, feeling that the events were real and were actually happening. When he experienced these nightmares he noticed he was often angry, nervous and "touchy". Once awakened by these nightmares he thought more intensely about the incidents and other incidents he had experienced while working as a police officer and he found himself regularly losing sleep as a result. · While stationed at Darlinghurst in 1992, Mr McKenzie and another officer were directed to attend a fire where children had died. During an inspection of the house, after the fire brigade had left, Mr McKenzie discovered the blackened and charred body of a child in a corner of a room. The child had its arm over its face so as to protect itself against the flames and the child had been burnt to death. The government contractor removed the body to the morgue. Mr McKenzie did not receive any counselling or de-briefing following this incident. He said it was a scene he constantly relived and saw it "in his mind's eye" to the present day. The sight of a child's body remained one of the most shocking sights he had even seen. Memories of the child were often triggered by other events such as seeing news reports of the recent Victorian bush fires - that type of report brought back vivid memories of this incident. As a result he had increased nightmares and became moody, angry and depressed. · In 1995, while stationed at Randwick, Mr McKenzie attended a block of units where he found the body of a 19 or 20-year-old female whose head had been "bashed to a pulp" such that her features were unrecognisable. He remained at the unit with his partner for approximately one hour and then they were told to attend the Remand Centre at Long Bay where they were taken to a cell where Mr McKenzie observed the dead body of a prisoner whose face and body was severely bruised. At the goal Mr McKenzie and his partner interviewed a number of witnesses over a period of some hours and were then directed to attend the morgue and witness the autopsy of the murder victim from the block of units. Mr McKenzie attended the morgue and witnessed the dissection of the body. He did not receive any counselling or debriefing after these two homicides. Mr McKenzie's recollection was that these were the first murders he had attended and they were both gruesome scenes and caused him to have increased nightmares. He said that, over time in recalling these incidents, he lost a significant amount of sleep and experienced nightmares. He remembered the incidents constantly and continued to do so up to the present time. He often found himself thinking about those two particular murders. · In December 1985 Mr McKenzie was working at the Maroubra police station when he volunteered to attend the scene of a shooting in a block of units. On arrival he noticed a garage was open and a male person was lying in the driveway in front of the open garage. The deceased's wife and son were standing near the body. Mr McKenzie checked the body on the ground and noticed a chest wound. The person was unconscious but died before the ambulance arrived. Two other detectives arrived who had not been called to the scene by Mr McKenzie. Those officers determined that there had been a suicide with a home made device and they spent sometime in the garage. They told Mr McKenzie and his partner that they could leave the scene. Mr McKenzie had not gone into the garage and was unaware what the home made device consisted of, as referred to by the other officers who had inspected the garage. Mr McKenzie did not receive any counselling or de-briefing after this incident. · In mid-1987 Mr McKenzie was working with the Armidale Detectives. One day, at approximately 9.am, three officers attended at an address to carry out a search pursuant to a search warrant. Mr McKenzie went into one room inside the house and observed a male person in bed, apparently asleep. He went through the room but did not search the bed or the person in it but searched other rooms at the rear of the house. He then returned to the room where the person was in bed, pulled back the bed sheet and told the occupant to get up and then observed that he was holding a rifle. The rifle was raised and pointed directly at Mr McKenzie who immediately grabbed the barrel and fell onto the person and subdued him. The rifle was loaded and the person was arrested with other occupants of the house. Mr McKenzie said the incident haunted him more than any other traumatic incident in which he had been involved. He blamed himself for going through the room in the first instance without checking the person in the bed. He kept thinking that any of the police officers, including himself, could have been killed and that possibility had never left him. He thought about this incident almost every day and thinking about it distressed him. The incident constantly played on his mind and this incident marked the time when he became very worried about being involved with any form of firearms. He did not receive any counselling or de-briefing after this incident. · In 1989 Mr McKenzie was part of the Armidale Special Weapons Group. The Group was called out by the nightshift to a house in Guyra where a male person was holding a hostage in a farmhouse. There were approximately six members of the Special Weapons Group and they had drawn rifles and bulletproof vests from the armoury. They arrived at the farmhouse in the early hours of the morning when it was still dark and put on their bulletproof vests. They received a radio call that the man had left the house and was driving towards them. Half the officers went to the right hand side of the road and the others went to the left hand side and shooting began. In the confusion each group of police were firing at the other in the mistaken belief that they were under fire. Mr McKenzie, however, did fire at the approaching car and disabled it. The person was removed from the car and pinned to the ground and one officer held his rifle to the man's head. The rifle discharged and missed the man's head by approximately two centimetres. Mr McKenzie did not receive any counselling or de-briefing after this incident. · On approximately 3 September 1989 Mr McKenzie attended an incident in Armidale where a heavily intoxicated male offender had assaulted his girlfriend. The offender was armed with a knife and together with other police, Mr McKenzie arrived at the scene where the person held the knife to his own throat and threatened to kill himself. Mr McKenzie was a trained negotiator and he attempted to placate the offender and disarm him. During the course of the negotiations the offender lunged at him with the knife and was ultimately disarmed. However, during this incident Mr McKenzie felt he was "losing it". During the negotiations with the offender he became very upset, nervous and aggressive towards the offender and was unable to concentrate on negotiations. The more aggressive he became towards the offender, the more aggressive the offender became towards the police. He regarded his actions as contrary to negotiating protocols and training. 10 At this time Mr McKenzie said he was having difficulties with a Senior Detective where, in effect, he had been requested to "fudge the figures" in relation to the crime clean-up rate in the Armidale area. He refused this request and that led to difficulties at work in the form of being rostered for the worst shifts and not being able to attend Detective conferences. This action caused him ongoing stress and anxiety. Also, by the time of the September incident, Mr McKenzie said he suffered from a number of physical and psychological symptoms and was having nightmares. The nightmares always involved aspects of his police work and he had difficulty sleeping. He became distressed, upset and nervous at the thought of going to work and regularly vomited at home prior to beginning a shift. By September this had been going on for several months and he was "ruminating about things". He found he was increasingly short tempered and his capacity to concentrate was reduced. He did not want to deal with jobs at work nor deal with members of the public and, without reason, would become angry with members of the public. He avoided going out of the station on jobs and at one time, being the second-in-charge of the Detectives, he was able to allocate jobs to other more junior officers and was able to stay in the station. He regularly ruminated about the events earlier described and was drinking more frequently and more than usual. 11 In approximately August 1989, Mr McKenzie attended his general practitioner, Dr David Breusch, for treatment for his stress and anxiety related symptoms. He was rostered to work on 9 September 1989 but on the prior evening contacted the station and advised that he was suffering from work related stress and would not be attending for his shift. On 14 September 1989 he completed reports of injuries received whilst on duty stating that he had been receiving treatment from his doctor for work related stress and anxiety. The reports further stated that certain events had occurred which had led him to consult and seek medical treatment and noted that his condition had deteriorated and had resulted directly from working in the Armidale station. The nature of the injuries were identified as "stress and anxiety". From 9 September to 20 December 1989 he remained on sick leave and thereafter was on annual leave or leave without pay until he resigned in March 1990. 12 From 9 September 1999 to the date of his resignation, Mr McKenzie continued to experience the symptoms he had earlier described. He stated that, during that time and up until his resignation, he remained totally unfit for the duties of his office and during the same period he continued to see his general practitioner, Dr Breusch. He saw Dr Breusch twice in October 1989 and once in November 1989 and was prescribed the drug "Frisium", a drug he took for some months. At one point Dr Breusch referred Mr McKenzie to a Tamworth psychiatrist, Dr Michael de Groot. He saw Dr de Groot once in approximately October 1989. At about the same time he spoke on the telephone to the Police Medical Officer. Following the submission of his Hurt-on-Duty claim he was directed to attend an examination by Dr J A Roberts, Psychiatrist in late November 1989. In or about February 1990 Mr McKenzie decided to resign from the Police Service and forwarded a letter of resignation to the Armidale Patrol Commander. 13 In his final years as a police officer, Mr McKenzie had commenced part-time study with the Solicitors Admission Board. In 1990 he completed the New South Wales Joint Examination Board Course and the following year was admitted as a solicitor of the Supreme Court of New South Wales. From July 1991 to approximately September 1992 he was employed with an Armidale firm working principally in family law and crime. He did not cope very well with this type of work and he found difficulty concentrating and dealing with clients. From September 1992 to June 1993 Mr McKenzie was employed as a solicitor in Inverell. This practice was also principally involved with family law and some criminal work and again he had difficulty dealing with the work and clients. He had trouble concentrating and was short-tempered. 14 In 1993 Mr McKenzie purchased a solicitor's practice in Coonamble operating with three partners. There were three offices and Mr McKenzie carried on business from the Coonamble office. At the end of 1993 the partnership was reduced to two and at the end of 1994 that partnership was dissolved and Mr McKenzie carried on business from the Coonamble office as a sole practitioner until January 1998. During these years he had an employed solicitor performing family law, criminal law and personal injury work. Mr McKenzie performed probate and conveying work and he described it as work he was "able to deal with more satisfactorily". The work was more procedural and he found it less stressful. 15 From January 1998 to January 2003, Mr McKenzie practised from his home address in Port Macquarie as a solicitor under the name of Tony McKenzie, Lawyer. He carried out conveyancing and also performed some locum work. in Sydney. In 2002 Mr McKenzie spent approximately four months in charge of a property law department of a Newcastle solicitor. When a solicitor decided to go to the Bar, Mr McKenzie was sent approximately 20 personal injury matters and although he looked at the files he did not know what to do with them and asked for the matters to be given to someone else. In approximately January 2003, Mr McKenzie purchased a solicitor's practice and for that year practised under the name of Allen Duggan Associates at Maclean. Again, his area of practice was mainly conveyancing with some family law as well as Road and Traffic Authority prosecutions. At the end of 2003 he ceased practising as a solicitor. 16 In May or June 2005 another solicitor in Taree informed Mr McKenzie that a Receiver had been appointed to his law practice. At the time he was not carrying on practice as a solicitor and said he was not concerned that the Law Society had appointed a Receiver. In approximately July 2005 a person employed by a firm of Receivers informed him that the Receivers were investigating various transactions in which Mr McKenzie had been involved. Prior to this contact he was not aware of Law Society concerns about those transactions. Mr McKenzie did not renew his Practising Certificate in 2005 and at the time of giving evidence the Law Society investigation was still proceeding. In his affidavit Mr McKenzie said his practice as a solicitor and the matters giving rise to the Law Society's investigation did not impact upon his psychological wellbeing, either at the time of his resignation from the Police Service or at any later time. 17 Mr McKenzie gave evidence about the progress of his psychological symptoms. Since leaving the Police Service he continued to experience difficulties dealing with people and lacked concentration. He continued to have nightmares and experienced flashback type episodes to incidents that had occurred during the course of his career as a police officer. He continued to be anxious and tried to avoid contact with people and going to places that were or could be associated with traumatic events. He continued to experience nightmares and sleeping problems and at times drank to excess. 18 From approximately 2003 the symptoms deteriorated: he had difficulty sleeping; avoided all his friends; avoided going to school functions involving his children unless he could not avoid attending; became short tempered with his children over small things; drank to excess, often drinking a bottle of scotch a night; had difficulty concentrating on his work, and, was making mistakes at work. Generally, he felt depressed and did not wish to meet anyone socially. He cried for no apparent reason on a number of occasions. He frequently thought of committing suicide. He had flashbacks to the traumatic incidents he had earlier described in his affidavit and began waking up sweating in the middle of the night. He awoke at 3.00am worrying about things and always felt down and depressed. He felt terrible when getting up in the morning and during the day he only wanted to be alone. He lost all motivation for work. He was permanently worried, felt sick to the stomach and suffered panic attacks. At the end of 2003 he stopped practising as a solicitor and from the end of 2003 remained at home. His psychological health did not improve and the symptoms described above gradually worsened. He spent most of his days in his room with the blinds drawn. By mid-2004 his wife told him there was something wrong with him, he needed a check-up and should see his doctor. 19 On May 10 2004 Mr McKenzie believed he saw a general practitioner, Dr Stephen Young, in relation to his symptoms. He was prescribed medication and saw Dr Young on a number of occasions between August 2004 and October 2004 in relation to those symptoms. In October 2004 Dr Young referred him to Mr Rudd de Bakker, a Clinical Psychologist located at Port Macquarie. His first appointment with Mr de Bakker was in late November 2004 and he saw him approximately ten times between November 2004 and November 2005. 20 In approximately May 2004 Dr Young referred Mr McKenzie to Dr Klaas Akkerman, Psychiatrist of Forster. Between June 2005 and October 2006 Mr McKenzie saw Dr Akkerman approximately 13 times. He described his symptoms and what he was experiencing and at various times Dr Akkerman provided psychotherapy counselling and prescribed anti-depressant medication. 21 Mr McKenzie said that to the present time he remained depressed and lacked interest in doing things and avoided social engagements. He spent most of his time alone at home and separated from his wife in approximately February 2006. He remained with thoughts of suicide and still suffered from nightmares. He regularly ruminated about events he had experienced during the course of his work as a police officer. 22 At the date of his resignation from the Police Force he was a Detective Senior Constable and was a trained police negotiator. At the date of his resignation and for several months prior to that he was suffering psychological symptoms as detailed in his affidavit. Mr McKenzie said these symptoms made him unfit to perform his duties as a Detective Senior Constable prior to and at the time of his resignation. He had problems dealing with members of the public and police officers. He had substantial difficulties with concentration and his capacity to investigate and report on matters and also his ability to obtain and make statements was affected. He avoided work and avoided conflict with members of the public and fellow police officers. He remained very concerned about how he would react in situations of conflict, including arrested suspected criminals. 23 In oral evidence Mr McKenzie dealt in further detail with each of the incidents mentioned above and the impact those incidencts had upon him at the time of their occurrence and how, over the years, they repeated themselves in is mind. Mr McKenzie recalled an incident that occurred when he was initially transferred to Armidale in 1987. While off-duty, he was called to attend a motor vehicle accident where a young Aboriginal boy had crashed into a tree. When he attended the accident it occurred to him that, while working at Maroubra Station in 1981, it was similar to the mistake he had nearly made where a person was partially hidden under the dashboard. In the Armidale incident the body was on the floor of the car and that brought the Maroubra incident immediately to mind and it did not leave his memory from 1987 until the day he resigned. His attendance at that accident triggered his memory of the first accident and he could not get it out of his mind and thought about it constantly. 24 Mr McKenzie said that, from the mid-1980s in relation to the young child he had seen burnt to death in 1982, the scene returned constantly especially when he was investigating a number of fires. It was not a case of thinking about it - that horrific sight kept replaying in his mind even though he would try to shut it out. 25 In relation to the October 1982 incidents when Mr McKenzie was called to attend two murders on the one day, he said he had started the shift at 8.00am and finished at approximately 2.00am. At the end of that extended shift he felt exhausted because on the one day he attended two "horrific, bad murders". In the first murder the girl had been very badly beaten with her head smashed in but the second murder at the goal was equally as bad. After finishing the shift he joined fellow officers at a Kings Cross pub and got "blind drunk" because he had emotionally "had it". In the following days and weeks he felt upset and explained that he had not been exposed in the lead role in any serious investigation, let alone serious murders. At the time he had to get on with the job and if he had shown any sign of weakness it would have been the end of his career. That night he had to attend the morgue to witness the body being dissected and it was a very unpleasant experience. 26 While at Armidale Mr McKenzie said that the role of a Detective in the country area like Armidale was different to a city Detective as there were less resources available and there were fewer uniformed police to whom he could delegate tasks. That meant that he had to do most of the investigating work himself. While at Armidale he took on two additional roles, becoming a member of the Special Weapons Group and a police negotiator. The mid-1987 incident where he was searching premises and a man pointed a loaded rifle at him particularly haunted him more than other traumatic incidents because of his slackness and not following procedure by not searching the man when he first found him: he nearly killed himself and other police officers. That incident continued to play on his mind every day and reminded him of just how close he came to being killed and killing some of his workmates. That incident was one of the reasons he could not sleep and most nights when in bed he continued to think about the incident. Sometimes when watching television and seeing an item about firearms (before he left the Police Service) it would disturb him. As a direct result he began avoiding firearms and went to work without taking his gun. If an issue arose involving firearms he would not respond and would send junior officers. 27 In further elaboration of the siege incident at Guyra, Mr McKenzie explained the circumstances in which an armed man driving a car began shooting at police officers situated on either side of the road and how, in the confusion of the event, the police officers returned fire and some of them were actually firing at each other. He spoke of his fear as bullets were whizzing around him. He also described the action he took in stopping the vehicle by shooting the armed man and while the man was restrained, another officer had discharged an Armalite rifle close to his head. Although the bullet missed, it was fired at very close range and had the capacity to remove the man's head. Mr McKenzie described his feeling after the incident as one of intense fear of being shot and he had not previously been in a situation where he had bullets and shotgun blasts whistling all around him. He had an intense fear and a real horror of what was occurring and was very shaken after the incident. That episode was one of the last serious matters he attended and the circumstances stayed with him from that time onwards. Because of the confusion between police officers it was not a matter they wanted to raise with the SWAT team in Sydney because there was a "big error of judgment" in that incident. Mr McKenzie knew an officer in Army Reserve and made arrangements for that person to give the officers training days to instruct them on what to do in a siege situation. 28 In relation to the September 1989 incident where a drunk man armed with a knife was assaulting his girlfriend, Mr McKenzie said the SWAT team were in attendance. He was not part of that team but had been called in as a negotiator. He had little practical experience as a negotiator but he was aware of the strict protocol and procedure to be followed to get the offenders on side and basically become their friend. He managed to talk his way into the house but then "completely lost it". He then acted in a way that was against every rule for negotiation and became argumentative with the man which was the last thing that should have occurred. Mr McKenzie said he was provoking the man instead of settling him down and when the man came at him with the knife Mr McKenzie retreated from the house and the SWAT team went in to subdue him. That was the last piece of police work he performed. He said that he "lost it" - he had nearly put police lives at risk again by making the man more aggressive and ruined the situation that should have had a good outcome. After that incident Mr McKenzie said he walked away saying that he could never do police work again. 29 During his time at Armidale Mr McKenzie had come into conflict with the head detective who had directed him to misrepresent the crime clean-up rate which Mr McKenzie knew was illegal and contrary to police regulations. He told the head detective that he would not do what was asked of him but the head detective proceeded to make life very difficult for him. The head detective would allocate jobs and Mr McKenzie was given jobs that nobody else wanted. The head detective made sure Mr McKenzie worked Friday and Saturday nights and if there was a Detectives' Conference to be held, he was made to stay back and clean up while the others went out and partied. He said the head detective made sure his life was not a happy one. That situation continued until the day he left. Because of this situation he hated to attend work because he knew the head detective was going to make working life difficult for him. It was at this time that he began vomiting before going to work and he would avoid work when the head detective was present. The shifts were organised such that they did not coincide so hopefully for eight days in a fortnight, Mr McKenzie would not have to see the head detective. The head detective continually complained to the District Office in Tamworth that Mr McKenzie was not pulling his weight. 30 From the end of 1988 and until he left in 1990, all these incidents in which he was involved came back to him and he began having serious trouble sleeping. He was physically sick before going to work and had trouble concentrating with paperwork. He ended up with 100 miscellaneous major files with exhibits that had not been entered and he just kept ignoring them and hoping they would go away. Mr McKenzie said that, as a young detective, he regarded himself as having a knack of talking to offenders and getting them on side but during 1989 he found he could not talk to offenders and get them onside, was unable to elicit information from them and was losing his people skills. He also lost his ability to deal with victims and told some of the victims to sort out their own problems. This happened throughout 1989 when he was second-in-charge. He would delegate jobs to others and avoid going out to see victims and defendants. He was avoiding them because he was too nervous and did not want to talk to anybody about police work. He reached the point where he began to hate the police because of how it was making him feel. 31 In relation to his sleep difficulties, Mr McKenzie said he just could not get to sleep and would lie in bed thinking about all the incidents and replaying them in his mind. He would get up at 2.00am or 3.00am knowing he had to be up again at 6.00am to start work and to get himself to sleep he began drinking again. His vomiting in the morning occurred before he began his 8.00am shift. He hated the thought of going to the station. That continued through the second half of 1989 right up until he left and even after he left the Police Service in 1990. 32 In August 1989, because of the way he was feeling, he saw Dr Breusch. Dr Breusch was the Government Medical Officer and Mr McKenzie thought he should see him. At that time he was upset and nervous about going to work and he was becoming very short-tempered at home and with other police officers. He was withdrawing from mixing with other police, including the Detectives, although in a country town police tended to socialise together. He was short-tempered and his concentration was reduced. He was not doing any of his paperwork nor was he finishing briefs for Court. On one occasion he took sick leave rather than go to Court and had another officer deal with the case for him - he was just avoiding going out on jobs. The further the year advanced in 1989 the more problems Mr McKenzie said he was having, especially with lack of concentration, not doing his paperwork, not sleeping and his vomiting attacks were increasing. He reached the point of seeing Dr Breusch because could not handle it any more. He felt he had to do something about what was going on in his life. At some stage he began seeing Dr de Groot in Tamworth who was a psychiatrist and he gave Mr McKenzie Frisium tablets. He did not get any relief from them. He had seen Dr Breusch several months before he resigned and felt he was not getting any better. 33 When he was rostered for duty on 9 September 1989 Mr McKenzie felt a build up of pressure until he made the telephone call saying he would not go into work. He was thinking he could not do the work and he was getting himself into such a state he could not face going back to police work. He was vomiting again, he was upset and shaking and in the end told himself he had to make the call as he could not face doing the work. On 14 September 1989 he completed a report of sickness or injury on duty and completed two forms in almost identical terms but Mr McKenzie said he did not know why he filled out two forms. His sick leave ran out on approximately 20 September 1989 and therefore he remained off work until he resigned either on leave, without pay or annual leave. 34 Mr McKenzie was asked why he made no mention of these difficulties in his letter of resignation: he replied that he had severe problems all through 1989 and he thought if he walked away from police work, all those problems would disappear and it would all be finished. At the time of his resignation he had been undertaking studies for several years with the Solicitors Admission Board. It took him one six-month semester to complete the course and if all went according to plan, he would finish the Diploma by September 1990. There was nothing he could have done by resigning in March 1990 to finish the course more quickly. When he resigned he had no other employment arrangements. Having completed the Solicitors Admission Board course late in 1990, he was then required to attend the College of Law and was ultimately admitted as a Solicitor of the Supreme Court of New South Wales in June 1991. 35 On the final day of his employment in March 1990, Mr McKenzie said he felt "at rock bottom". He said he could not face police work anymore and he was seriously affected by the incidents that had occurred over the years. Things that happened nine to ten years earlier were affecting him and it was bad for his wife and family and he was also drinking too much. He had withdrawn from all his friends and had nothing to do with them and he could not do police work anymore. He stayed away from firearms, he could not interview people, victims or offenders and only went to work because he had to. In relation to police work he had completely lost his grip and he just could not face police work any more. That was also true of his paperwork. He had a build-up of files and was not attending to any paperwork, court briefs or anything. When he mentioned the College of Law studies in his letter of resignation, Mr McKenzie said he did so because the Police Regulations stated that when he resigned he had to state a reason. 36 He had met his wife-to-be in approximately 1989 and they went out for a number of months before commencing to live together and continued to do so until his resignation. He was married on 3 February 1990 after he was off on sick leave and while on leave without pay or annual leave. They went to Yamba for three or four days following the wedding and Mr McKenzie described those three days as being good as he had only just married and they spent the days sitting on the beach. 37 After leaving the Police Service and commencing legal practice, Mr McKenzie said he initially had a great feeling of relief that it was all over but it started slowly coming back again although not as chronic as it later became. He still had not overcome the symptoms he had before he left the Police Service. He thought the cure would be working away from the Police Service but that did not happen and the suffering and symptoms he had described remained with him. A great load had been lifted from his shoulders when he resigned and finished his studies. The six months at the College of Law was not challenging and was "fairly easy" but he had not lost all the symptoms and the events continued to recur. 38 After his resignation and during the 1990s, Mr McKenzie did not seek any treatment for his psychological symptoms until approximately May 2004 and thereafter. In 2003 Mr McKenzie said he felt his life was starting to spiral out of control, his concentration was a real difficulty and he was arguing with his children for no reason, becoming very angry and then acting nicely. The children did not know where they stood and in order to sleep at night he again began drinking to excess. During 2003 he said he reached the same point he was at with the police 1989: he had clients coming in and he was telling them to go away and sort out their own problems. He was letting the legal practice run down and was virtually closing the practice at lunchtime. In 2003, when it got to that point, he finished practising as a solicitor and stayed home for months. He did not do anything or go anywhere and that is when his wife told him that there was something wrong and he should see a doctor. It was at this point that it all jelled for him and he consulted Dr Young and was referred to Mr de Bakker, a psychologist. He was treated by Mr de Bakker and saw him approximately ten times between November 2004 and November 2005. 39 Dr Young had told him that he thought Mr McKenzie may have some depression issues and was therefore sending him to a psychologist. The Government had a free ten-week programme for people in his situation. Mr McKenzie completed that programme with Mr de Bakker who then recommended a further programme. During that period Mr de Bakker spoke to Mr McKenzie about different issues and raised the possibility of post-traumatic issues and was referred to Dr Akkerman. When Mr McKenzie first saw Dr Young he was prescribed a sleeping tablet called Temaze because at that time he was having tremendous difficulty sleeping. He was also given sample packs of anti-depressants and for some time he was taking Mozon. The difficulty he then had with sleep was going to bed and finding he was doing police work all over again and just could not sleep - he would be lying there until 2.00am or 3.00am in the morning. Dr Young also placed Mr McKenzie on Luvox which he understood to be an anti-depressant. He had explained his symptoms, what he was experiencing and feeling and had told Dr Young the truth about these matters. 40 On 13 occasions between June 2005 and October 2006 Mr McKenzie saw a psychiatrist, Dr Akkerman He told Dr Akkerman what was wrong with him and what difficulties he was experiencing and there was a change of anti-depressant medication to Avanza. Mr McKenzie said he was now taking three Avana at night and one Effexor. He was still taking three Temaze tablets at night - taking two when he went to bed and he would take a third tablet when he woke up at 3.00am worrying about things and past incidents. He separated from his wife in February 2007 and the divorce was made absolute in May 2008. 41 Through the 1990s and up until December 2003, Mr McKenzie continued practice as a solicitor. In December 2003 or early January 2004 he sold the Maclean practice. He kept a Practising Certificate to finish off an estate matter and dealt with a small number of conveyances for a friend who was a builder but his Practising Certificate, however, was not renewed after June 2005. In mid-2005 Mr McKenzie was contacted by Mr Mitchell on behalf of the Law Society who wished to discuss certain transactions that had occurred during 2004. Those matters related to an estate, a matter in which Mr McKenzie first took instructions in 1998. Mr Mitchell raised the matter of certain transfers from the trust account dated back to August 2002. A number of transactions after that date were also raised with Mr McKenzie. It was not until Mr Mitchell contacted Mr McKenzie in mid-2005 that he was aware of any interest by the Law Society. Prior to that conversation Mr McKenzie had not been anxious about the estate transactions and did not regard concerns about the estate had affected his psychological wellbeing. The matter remained under investigation. In February 2000 a further matter relating to a loan evidenced by a Deed was raised with the Legal Services Commissioner and that was resolved amicably some year or two later. Mr McKenzie did not perceive those dealings as impinging on his psychological state and said the nightmares were attributed to the police matters and he never had concerns or worries about the Law Society matters. The nightmares relating to his work as a police officer recurred during the 1990s up until the present time and had never left him. 42 In cross-examination, Mr McKenzie said that he learned from his sister about his ability to make a claim under the Police Regulations (Superannuation) Act: she was a serving police officer some years ago and was discharged with a back injury caused by dropping a typewriter. His sister was married to the officer in charge of the Police Welfare branch who had told her that police might claim, sometimes years later after being processed, so she passed that information on to Mr McKenzie. Mr McKenzie then got in touch with the SAS Trustee Corporation and asked them to send him information. Mr McKenzie said he first became aware of the term post-traumatic stress disorder when Mr de Bakker told him he was being referred to Dr Akkerman because he might be suffering a post-traumatic distress disorder. 43 It was accepted by Mr McKenzie that, up until 1989, his leave record showed that he had no cause to take time off as a police officer due to any emotional upsets. In September 1989 he began a period of sick leave on the basis of stress. 44 While Mr McKenzie accepted that he felt uncomfortable going to work and that he was greatly concerned by the pressure of the head detective over the crime clean-up figures, he denied he hated the job because of that incident. He had started vomiting before going to work not because of the problem of confronting the head detective but in 1989 he was feeling that way. The vomiting was most severe at the end of 1989 and probably for the last four to five months of 1989 but was occurring prior to the middle of 1989. He saw Dr Breusch about that problem in August 1989 and by that time the head detective had asked him to fudge the crime figures and Mr McKenzie perceived it as part of the problem. The two injury reports made while on duty referred to work related stress and anxiety and certain events that had occurred leading him to seek medical treatment. This referred to all the incidents he had observed as well as the difficulties with the head detective but they did not mention anything about the traumatic incidents, flashbacks or nightmares. Although his memory of what he told Dr Breusch was not totally clear, he believed he mentioned all the incidents as well as the difficulties with the head detective. 45 The claim for Hurt-on-Duty and seeking special sick leave from 9 September 1989 onwards was refused and Mr McKenzie was aware of that result. He thought, however, that he was being paid up to the date of resignation and his Hurt-on-Duty and claim for special sick leave was supported by three medical certificates from Dr Breusch. He received no further medical certificates from Dr Breusch after the end of November 1989. 46 In the three months thereafter and before his resignation, Mr McKenzie believed that he was emotionally damaged and he could not face police work. It was his belief that this condition was related to psychological damage that happened to him over the years as a police officer but over that three-month period he did not submit a medical or retirement claim. He denied not seeking a medical discharge because he thought he would be unsuccessful and he had never enquired into the details of medical discharge because all he wanted to do was leave the Police Service. He could not recall telling Dr Roberts in November 1989 that the only way out of his current situation was to resign but he was not after a pension and in the past he had wished for a career in the Police Service. 47 Mr McKenzie had gone on sick leave after his Solicitors Admission Board examinations in September 1989, his last examination being the night after the siege at Guyra. By the beginning of 1990 he had not stopped seeing Dr Breusch as he was the family doctor and was seeing him continuously until three years later when Mr McKenzie left Armidale. However, after late 1989 he did not ask Dr Breusch for any more medical reports. Mr McKenzie rated the Guyra incident as being very important and in close proximity to the time he left the Police Service. When he submitted his statutory declaration to the SAS Trustee Corporation there was no mention of the September 1989 Guyra incident. Mr McKenzie denied that, at the end of 1989, the things bothering him involved the head detective. 48 As at November 1989, Mr McKenzie was of the view that he could not do a great deal as a police officer yet he had told Dr Roberts that the effect of his condition in terms of what he could and could not do was that there was not a great deal he could not do and that it did not affect him a great deal. Mr McKenzie agreed that, by reference to his 1989 sick leave record, there was little reference to taking any stress leave but there were times when, because he did not want to go to work, he went on sick leave. Mr McKenzie also accepted that he mixed socially and enjoyed himself at his wedding and that was shortly before he resigned. It was a happy time in his life. 49 Studying law was not a new career path and Mr McKenzie undertook that study so he could gain promotion within the Police Service. He did not see the head detective and the bad relationship as preventing his promotion. He told Dr Roberts that, because he had submitted a report about his superior and although his superior did not know about the report, he had formed the view that he had no future in the Police Service. He accepted that his wife had never liked him being in the Police Service. 50 It was put to Mr McKenzie that, as at November 1989, he was not having any incapacitating symptoms of an emotional or psychiatric nature but he denied that proposition and asserted that the way he felt reflected these problems. He knew what he was suffering and going through. When he spoke to Dr Roberts he had made enquiries of other officers and was told that Dr Roberts was a gun for hire and he would get no relief for his Hurt-on-Duty claim. Thereafter, Mr McKenzie said there was no point in telling Dr Roberts about all his problems and that was the attitude he took into the consultation. He was not there for assessment or treatment. At the time of the first consultation with Dr Roberts, Mr McKenzie said he did have a problem with his concentration and his energy and interests were impaired. He was not attending to his paperwork as a Detective and he was not properly interviewing suspects - there were nearly 100 files that he had not attended to. 51 In relation to his resignation, Mr McKenzie said initially it only contained one sentence stating that he wished to tender his resignation effective from 11 March 1990. He was advised by another police officer that he had to provide a reason for leaving. When given that information Mr McKenzie said he put the document back into the typewriter and put in another reason, namely, that he wished to complete his final year of law studies on a full-time basis. In fact, that is what he did. That document was not accurate because he did not mention having concentration problems, flashbacks, nightmares and vomiting or that he was unable to perform his duties. 52 Between May 1990 and September 1990 Mr McKenzie did not seek any medical treatment. Although recently married and his wife was pregnant, he denied it was a fairly happy period in his life. Between September 1990 and undertaking study at the College of Law in January 1991, Mr McKenzie stayed at home. His first child to his then wife was born in early November 1990 and he was spending time with his wife and new child but denied that this was a happy period in his life. 53 From July 1991 Mr McKenzie obtained work with an Armidale firm of solicitors. During his employment with that firm he did take time off for emotional upsets but did not seek any medical treatment although he felt impaired in some way and was still having problems. In 1993 he had purchased a practice in Coonamble and socialised with his wife and tried to make friends. He did not think he was socialising twice a week but more like once a fortnight. He became the Treasurer of the Jockey Club because nobody else wanted the job. He denied that he was happy and doing well in Coonamble. He was unhappy because he could not handle the work and therefore did not like it and it had started to slide downhill within six months of purchasing the practice. By 1998 Mr McKenzie's money worries led him to file for bankruptcy but he denied that the status of bankruptcy worried him. He then moved to Port Macquarie and worked from home doing mainly locum work after he had decided that he did not wish to go back into a legal practice with a full office staff. He took some matters with him, including a matter of some complexity regarding the estate of Campbell, but he denied that difficulties associated with that matter caused him any concern. He did not suffer any emotional upset because of that matter. He found working as a locum easy work and was able to handle it. He did have one issue of competence in approximately 1996 - 1997 where he did not properly complete a lease leading to an $80,000 Law Cover claim. In an estate matter he sold the wrong shares leading to a large claim being made in relation to that matter. There was also a further issue about the lease of a hotel at Coonamble and these were examples of his lack of concentration. In February 2002, Mr McKenzie had supplied a very detailed reply to the Legal Services Commissioner concerning a complaint lodged against him. There was nothing in the reply to indicate he was having difficulty concentrating or that he had any emotional or psychiatric problems, 54 In 2002 when he moved to Port Macquarie, Mr McKenzie denied that he had a busy practice - he was doing locum work and had to travel to perform the work. At that time there was participation in many school activities with a lot of socialising and making new friends but he denied it was a happy time in his life because he was still having "massive" problems. He said he was cruel to the children and was still having problems associated with his previous police work and he could not get away from them. He said he was not socialising once or twice a week. He did not realise the gravity of his problems but he knew he was not happy. It was only when his wife told him that there were serious problems that he sought medical advice. He did not realise that they extended to serious psychological problems. 55 In January 2003, he bought the Maclean practice while still living in Port Macquarie. He was working three days per week but approximately mid-way through 2003 it became apparent that this venture would not work. At about the same time his mood markedly deteriorated and his mental health was in a serious decline from mid-2003. Up until then he had been able to do the work but in the early part of 2003 he was unhappy about the practice. He denied telling Dr Roberts in 2008 that the practice was "fantastic". It was a practice that did not require a great deal of legal work and was strictly a conveyancing practice where a secretary did everything and he would turn up and "go through the motions". There was another professional complaint arising from a lease but he denied that was a source of worry to him. 56 Mr McKenzie first consulted Dr Young in mid-May 2004 because he was having psychiatric problems and was prescribed some tablets. He told Dr Young about the problems he was having and that they were much more severe than before mid-2003. In November 2004 he was sent to see Mr Rudd de Bakker, a psychologist. The treatment he received from Mr de Bakker did not assist him at all. 57 Mr McKenzie denied that any issue arising out of his legal practice caused him worry or concern. In 2005 he was unexpectedly interviewed about his Trust accounts and an Inspector examined his books and in July 2005 he did not renew his practising certificate. Mr de Bakker referred him to Dr Akkerman. On his first visit to Dr Akkerman he did not tell him about any problems with the legal practice because he had no concerns about those problems. Mr McKenzie's view was that the practice was fine but he could not cope with the work. Mr McKenzie accepted that he could not explain why he had such a significant deterioration in mid-2003. He was having some financial difficulties about a home loan in 2005 and when he saw Dr Akkerman in mid-2005, he said he felt his life was spiralling out of control. He also told Dr Akkerman that his symptoms had been present for four or five years meaning they commenced in approximately 2000 - 2001. He was now saying that his symptoms commenced earlier than that, in 1989. He did not mention that date to Dr Akkerman. Mr McKenzie had not mentioned professional complaints about his legal practice or his bankruptcy when he saw Dr Akkerman because the only things on his mind were the problems he was having with police work. 58 Mr McKenzie said he had frequent flashbacks about the incidents that occurred during his police career and by mid-2003 he was having suicidal thoughts. Mr McKenzie had commenced proceedings in the Supreme Court and although a number of incidents occurring during his service as a police officer were mentioned, there was no reference to the September 1989 incident in which he acted as a negotiator. He accepted that was a dramatic incident that upset him and was the reason he decided never to go back to police work but he had no explanation why that event was not part of his Statement of Claim. 59 At one point Mr McKenzie had written to Dr Akkerman asking him to consider a diagnosis of his condition as post-traumatic disorder rather than depression but Mr McKenzie could not recall why he did that. It was Mr de Bakker who first told Mr McKenzie he might be suffering from post-traumatic stress and that Mr McKenzie satisfied the criteria for that condition. 60 Mr McKenzie accepted that his family and professional life in the early days at Port Macquarie were satisfactory but he did not regard himself as working hard although he was capable of performing work as a solicitor. The Maclean practice he had purchased was not very big but in 2003 it provided him with an income. Things were wrong leading up to 2003 but it started to go seriously wrong from then onwards. In the early part of 2003 there were no problems with work, the practice just "kicked along" and he was functioning as a solicitor. Although he was unhappy things were functioning in a satisfactory sense with married life, family and professionally. After the sale of the Maclean practice and after Christmas 2004, Mr McKenzie became involved in importing marble. He imported one load of marble, set up a business account but the venture lost money. 61 Mr McKenzie agreed that, since 1989, although he had a list of difficulties previously mentioned including flashbacks, sleeping problems and excessive drinking, he did not seek any medical treatment for these problems from the end of 1989 to 2004. Mr McKenzie said he did not think he had the problems that he actually had and did not understand the diagnosis that he subsequently received. He disagreed that the symptoms were not serious and that was the explanation for not seeking medical treatment. 62 Mr McKenzie understood that he was being seen by Dr Roberts in late 1989 in relation to his own Hurt-on-Duty claim. That claim was later rejected. He did not take action to pursue that claim but decided that he would leave the Police Service because of the problems. He rejected the suggestion that he did not have any problems at that time which incapacitated him for work. He did have a problem with the head detective and he told Dr Delaforce that the problem with the head detective was the catalyst for him leaving - he did not say it was the 3 September 1989 incident. Nevertheless, the 3 September 1989 incident was when he decided he would never return to police work. He did tell Dr Breush that problems with the head detective were very important to his Hurt-on-Duty claim. 63 Mrs Tania McKenzie, the former wife of Mr McKenzie, provided an affidavit for the purposes of these proceedings. She first met Mr McKenzie in June 1988 in Armidale and her first impression was that he was a very sociable, outgoing type of person, very compassionate and considerate of those he knew and had an ability to relate well with people from all types of backgrounds, either in the course of his job or socially. They lived together from approximately September 1988. In the early years of their relationship they went out socially once or twice per week, mostly involving meeting other police friends or socialising with her work colleagues. There were visits to Mrs McKenzie's parents in Glenn Innes. Mr McKenzie was charming and very personable, appeared at ease with people and readily engaged in conversation. They were married in February 1990. 64 In late 1989 and early 1990 Mr McKenzie took sick leave from the Police Service. He did not talk to her about what he did at work but he was not as easy going as usual. He told her he was under great pressure at work and he was not feeling at all well. During the six months before he left the Police Service he appeared "very highly strung" and was drinking more than usual. He would drink to excess two to three times per week, often to the point of passing out and was very moody and short tempered. Once he left the Police Service he was more relaxed and reduced his drinking. 65 After Mr McKenzie left the Police Service in March 1990, he qualified as a solicitor in 1991 and from July 1991 worked for a firm of solicitors in Armidale. During this time he appeared to be enjoying his new profession and they socialised approximately once a week with his friends. After their first child was born in November 1990, they did not socialise as much but still went out "frequently". While in Armidale they made a number of new friends. Their second child was born in mid-June 1992 and in September 1992 Mr McKenzie took up a position with solicitors in Inverell. It was hoped that he would become a partner in the firm and that the family would follow him to Inverell. In the meantime they remained in Armidale with Mrs McKenzie working full-time with two young children. Mr McKenzie came home to Armidale every weekend or every second weekend and they did not go out much when he was home. 66 In 1993 Mr McKenzie purchased a practice in Coonamble and he moved there in either May or June 1993. Approximately one month later Mrs McKenzie moved to Coonamble with their two children and they purchased a house shortly after their arrival. Mr McKenzie joined the Coonamble Jockey Club and in the early years appeared to be enjoying his work and they made a number of friends and went out socially "a lot". Mr McKenzie appeared to enjoy the lifestyle and the company of people they had come to know very well. They were both quite active in the community and were involved in their children's pre-school and school. Everyone knew each other in such a small community and Mr McKenzie was working and mixing socially with his clients and seemed to thrive on the work and challenge it offered. Their third child was born in June 1994. 67 After approximately three years in Coonamble, Mr McKenzie began to change and did not appear as relaxed. He drank excessively at home. Since they first met, Mr McKenzie was a regular drinker and would drink at least twice a week but by 1996 he started to go out more often and frequently came home very intoxicated. He also appeared to be very dissatisfied with Coonamble and with the people and did not want to mix with their friends. He used to say he hated it and did not want to be in Coonamble anymore. He reduced the amount of work he was performing and stopped doing work after hours. In the early years at Coonamble he performed a lot of work after hours and was very generous with his time, offering to seeing clients at their home or at Mr McKenzie's home if that was more convenient for them. He then became withdrawn from people and preferred to stay at home rather than go out and socialise. He used to say to her that he did not want to go out to work or have to face anybody on a particular day and did not want to deal with people. He did not want to have to deal with anything. He also appeared to become paranoid and told her that, if someone knocked on the door or the telephone rang, she was not to answer it on the basis that it might be somebody he had locked up and had found out where he now lived and was coming after the family. 68 By the end of 1996 and the beginning of 1997 Mr McKenzie was becoming increasingly "hateful" of the town and the people and he put pressure on Mrs McKenzie to leave. She was in no hurry to leave Coonamble but Mr McKenzie decided to move to Port Macquarie and in January 1988 they did move to Port Macquarie. The family left Coonamble without saying goodbye to many good friends because Mr McKenzie wanted to leave as soon as possible saying that he had enough of Coonamble and he just wanted to get out of there. 69 In Port Macquarie, Mr McKenzie carried on practice as a solicitor from their home address and Mrs McKenzie assisted as his secretary in the practice. After moving to Port Macquarie his mood appeared to improve significantly and he became more outgoing. They were again more active in children's pre-school and school activities because he wanted to make good friends and have a good life. They made a lot of new friends and enjoyed the process and socialised a lot, about once or twice a week and this pattern continued until early 2003. From that time Mr McKenzie's mood appeared to become depressed and he became more impatient and intolerant of the children. He became very moody and they would never know if the day was to be a happy day for him or a quite, sullen day. He became withdrawn from people, drank to excess at home on two or three nights per week and his mood steadily deteriorated throughout 2003. At the end of 2003 and early 2004, Mr McKenzie would tell her that he did not want to see or talk to anybody, that he was sick of dealing with people, dealing with telephone calls and dealing with other peoples problems. 70 Over the years since late 2003, Mr McKenzie did not improve. He again drank more often at home and on the odd occasion that they did go out, he would drink to excess and continue to drink at home until he passed out. Once or twice a week, at the very least, he drank until he became unconscious. He became very unsociable and refused to go out socially unless absolutely necessary. He would attend functions for the children if that was necessary or she insisted that he attend. On one occasion at an end of year concert, he drank to the point that his daughter said that he was embarrassing and had asked Mrs McKenzie why he drank so much. 71 Over the past few years the children had commented on how Mr McKenzie had been cranky and angry all the time and they asked why he drank so much. He did not like to help at school functions as he had done previously and she observed that he was no longer able to hold a conversation with any of their friends. At a barbeque she observed Mr McKenzie walk away from people and stand by himself. It was obvious to her, by his mannerisms, that he was very uncomfortable in the company of other people and appeared to want to go home. He would stand or sit by himself and gaze into space or actually move away from the group. When friends directed conversation to him, sometimes she would have to get his attention and repeat the conversation because he had not been listening. When she asked him about his apparent rudeness, he would say that he did not find the conversation very interesting and did not appear interested in what others had to say whereas previously he had been so personable. 72 While Mr McKenzie was at home, he would keep the doors and the blinds closed so that he could not see out and no one could see inside the house. He told here that if it was up to him he would keep the house in darkness all the time because he felt safe and he would not have to deal with anyone. Mrs McKenzie said that her husband's depressed mood, his continuous drinking and being short tempered with the children eventually placed so much strain on the marriage that she decided to separate. They separated in February 2007 and divorced in May 2008. 73 Mrs McKenzie gave oral evidence. Mrs McKenzie said that, in late 1989 and 1990, she observed him to become more withdrawn and seemed much more distressed. She described him as appearing to have the weight of world on his shoulders and he was quite aggressive, appeared uneasy and was short tempered a lot of the time. In late 1989, early 1990, he started going to bed much later than usual. With the changes of location over the years there seemed to be a cycle - after the move he would improve but after a while he would return to his old ways. When she challenged him about his behaviour he told her that he could not face people any more and could not deal with them and he was concerned that incidents from his past were going to catch up with him. He did not know whether, when walking down the street, he may come across somebody he had contact with while a police officer. In the early days of their relationship he would not tell her very much about his work as a police officer. He used to say that he was not proud of a lot of things that had gone on and what he had seen as a police officer or things he had observed others doing and was really concerned that some of those things would come back and catch up with him. 74 In cross-examination Mrs McKenzie said that her husband was still personable when they were in Armidale in 1988 and 1989 and that continued when they moved to Coonamble in the early stages. Things seemed to change between 1996 and 1998. At that stage there were only minor family financial worries. Mr McKenzie declared himself bankrupt in 1998 and she thought it was possible he was under financial stress at the time but he did not talk much to her about that matter. She had encouraged him to leave the Police Service and when he resigned, he pursued his legal studies. She regard the first three or four years of their marriage as being a happy time and her husband appeared to be happy with what he was doing. That changed in the latter part of their stay in Coonamble. She did not regard his discharge from bankruptcy in 2001 as being a great relief and they just seemed to "flow on". Between 2001 and 2003 she observed that things appeared to be going well with the family and at work for Mr McKenzie and he did not complaint about not being able to concentrate or do his work. He was unhappy about being away from home and servicing the Maclean practice and he did not particularly like doing law any more but it was just a means of supporting the family. That changed in the latter part of 2003 with her husband's emotional stability deteriorating. In 2004 she advised him to see a doctor because of these changes. The changes that occurred between 2003 and 2004 were not of the same degree that she had seen before. At that stage he was having nightmares and he told her about them. He had not told her about nightmares before that but he had been protective of her throughout their relationship and only told her of things he thought she should know. 75 In April 2004, Mr McKenzie became involved in an importing business, importing marble, but that business did not last very long. Initially, he was enthusiastic about the business and thought he could make money out of it but he was not terribly disappointed when it did not work out. Mr McKenzie was not disappointed when the Maclean practice did not meet his expectations because ultimately they did not see that as a place to take the children. Her husband was happy enough to sell that practice. There had been some money worries during 2005 and 2006 and her husband was concerned about the welfare of his family. At this stage Mr McKenzie did not tell her whether his money worries were more significant than at other times during their marriage but he did not tell her much about what was going on. At the time of his resignation from the Police Service, she knew he was having issues with his superior officer at the Station but he did not tell her a lot about the issues. He did not tell her about anything else that was worrying him at that stage. Mr McKenzie told her that he thought his career was over because of complaints he had made about his superior officer. She thought there were "a lot of issues" that prompted his resignation and guessed that was one of them. MEDICAL EVIDENCE 76 Dr Nikolaas Ackkerman is a specialist psychiatrist practicing in Forster. Dr Akkerman had seen Mr McKenzie on 39 occasions between 22 June 2005 and August 2009. He provided nine medical reports concerning Mr McKenzie. In June 2005, he reported to Dr Young (the referring general practitioner) that Mr McKenzie had told him that he had been a police officer between 1979 and 1990 when he resigned and he then worked as a solicitor until approximately two or three years ago. Mr McKenzie advised him that he started having symptoms about four to five years ago and that they had spiralled out of control. He was "now not capable of working" and although he was taking medication and feeling somewhat better, he was still significantly impaired. Dr Akkerman then stated: He definitely suffers from a major depression, complaining of the following symptoms: · he has initial insomnia; · He has middle insomnia; · his concentration is impaired; · his short term memory is impaired; · he has no energy; · his level of interest in things has decreased; · his libido is down (he blames the Lovan for this); · he is particularly irritable; · he is tearful; · he has flashbacks; · he has nightmares; · he binge drinks. ... Mr McKenzie continues to have many psychological issues regarding his service in the Police Service. 77 In September 2006, Dr Akkerman supplied a medical report to the State Super SAS Trustee Corporation ("SAS Trustee Corp"). In that report he noted that Mr McKenzie was applying for a s 10B(2) Hurt-on-Duty pension under the Police Superannuation Scheme and that he had been provided with a list of questions to be addressed in order to have the claim proceed. Dr Akkerman noted that, in that report, Mr McKenzie's reasons for resigning in 1990 were due to "stress and an inability to cope with police work". In answering the specific questions Dr Akkerman stated that, in his opinion, Mr McKenzie was not medically capable of performing his duties as a police officer and his incapacity related to his psychiatric condition of "major depression". Mr McKenzie's present condition was directly attributable to an injury and he developed major depression as a consequence of the work he was doing. Mr McKenzie's incapacity was solely related to the injury incident earlier described. His current incapacity had not been brought about or affected by the passage of time or ageing process. His condition deteriorated in early 1990. Dr Akkerman said he could support this date with some confidence and his opinion was supported by the fact that Mr McKenzie left the Police Service at that time as he was no longer able to cope with the duties of his office. He expressed the view that Mr McKenzie would be incapacitated for the foreseeable future and the condition was chronic. 78 On 31 October 2006, Dr Akkerman supplied a further report to the SAS Trustee Corp amending his earlier report. In this report his opinion was that Mr McKenzie was not medically capable of performing duties as a police officer and that his incapacity was related to his psychiatric conditions, namely, major depression and post-traumatic stress disorder. Post-traumatic stress disorder was a psychiatric condition added to the earlier report that identified only major depression. Dr Akkerman then stated that Mr McKenzie's present condition was directly attributable to an injury. He developed major depression as a consequence of the work he was doing. He identified three issues "in particular": during a SWAT operation a man in farmhouse, near Armidale, opened fire on them when they were not prepared and they eventually caught the man. One of his fellow officers kept a gun at the assailant's head and the gun was accidentally discharged. As coincidence would have it, the assailant had just moved his head and avoided injury; there was no search warrant on a house and Mr McKenzie went into a room where he saw a man in bed. He decided he was innocent and did not pursue this further. Later they found he had a gun under the sheet and he could have killed all the police officers; once he was in a house waiting for an armed robber to return and was very scared. Mr McKenzie's incapacity was wholly related to the injury and incidents just described. 79 In July 2008, Dr Akkerman supplied a report to Mr McKenzie's solicitors. He had been provided with his previous September and October 2006 reports and a submission to the Police Superannuation Advisory Committee. In that submission it was suggested that Mr McKenzie may not have informed Dr Akkerman and Dr Delaforce of his professional misconduct and that may have led them to assessing him as being incapable in terms of s 10B(2) of the Act when they otherwise may not have made that assessment. Dr Akkerman was asked whether, in view of the professional conduct complaint against Mr McKenzie, that complaint caused him to vary the opinion he had expressed in his two earlier reports and if so, in what way had his opinion changed? Dr Akkerman then reported that, having knowledge of these two complaints, did not lead him to alter his opinion in any way as those stresses were relatively minor compared to the others to which he had been exposed. His diagnosis remained unchanged although Mr McKenzie had improved but he was still quite impaired in spite of ongoing treatment and as a consequence, prognosis was guarded. 80 On 26 March 2009 Dr Akkerman provided a further report to Mr McKenzie's solicitors. He referred to his earlier reports and noted that he had been provided with documents, including those describing the duties of a New South Wales police officer. Based on the history given by Mr McKenzie and recorded in Dr Akkerman's report he was asked whether, in his opinion, Mr McKenzie was fit for the duties of his office as a police officer at the date of his resignation in March 1990? Dr Akkerman said that was a very difficult issue and he had not met Mr McKenzie until 2005. He suffered from post-traumatic distress disorder and major depression and in the doctor's opinion this was related to his duties in the Police Service. Because of the history obtained from Mr McKenzie and Dr Akkerman's understanding of the disorder (post-traumatic distress disorder), he stated his belief that Mr McKenzie's condition was related to his employment with the Police Service and he believed that, more likely than not, he was incapable of working as a police officer from 1990 onwards. 81 In oral evidence, Dr Akkerman said that he did not change his diagnosis by adding post-traumatic disorder in his report of late October 2006 - he had added to his diagnosis. At the very first consultation, Mr McKenzie told him of symptoms that were consistent with post-traumatic distress disorder. Those matters included flashbacks and nightmares but Dr Akkerman did not believe that he had sufficient symptoms to reach the full threshold for post-traumatic distress disorder and that is why he did not diagnose it at the time. As Dr Akkerman got to know him better, Mr McKenzie was telling him more and additional symptoms came out and the doctor realised that he did not just have symptoms of post-traumatic stress disorder but he had reached the full criteria sufficient to sustain the full diagnosis. Mr McKenzie did not give a lot away and in the doctor's experience there were a number of people with post-traumatic stress disorder who did not like to talk about their symptoms or their issues. As the treating doctor it was his responsibility to make him better not worse and quite often when people were forced to talk about stressful things, it would make them worse. Dr Akkerman tended to let the patient decide when they talked about stressful things and Mr McKenzie did that from time-to-time but not all the time. 82 In September 2006 when Dr Akkerman advised the SAS Trustee Corp that Mr McKenzie's condition deteriorated in early 1990 and that he could support that date with some confidence., that was when he left the Police Service and was no longer able to cope with the duties of the office. That statement was made about a time when he was not treating Mr McKenzie and so he relied on his history. He had seen Mr McKenzie a number of times by the time he had made his September 2006 report to SAS Trustee Corp and his history was that he had consistent problems, had time off work, had some medical attention and Dr Akkerman came to accept his version of events. Dr Akkerman was then asked to assume a number of events that had occurred during Mr McKenzie's life as a police officer and a number of the problems he had complained of from time-to-time and to give his opinion based on those assumptions. Dr Akkerman stated that those issues were internally consistent with the conclusions he came to, particularly the diagnosis of major depression but there were indications of post-traumatic stress disorder. From 1989 to March 1990 when Mr McKenzie said he could not do police work any more, could not interview people, including victims or offenders and was avoiding firearms, he was avoiding jobs and was aggressive on the job, hated the police work and was unable to do associated paperwork, then those matters and difficulties were consistent with the symptom complex that Dr Akkerman had described. They were consistent with Mr McKenzie being unfit for police work at the time of his resignation. That was because of the depression diagnosis and the possible post- traumatic distress disorder at the time. 83 In considering the Hurt-on-Duty reports concerning the injuries complained of by Mr McKenzie while he was still a police officer, Dr Akkerman noted that he was able to convince a general practitioner that he was unwell because of a psychiatric illness and that occurred 20 years ago. In those days country general practitioners had a low level of knowledge in this area and he did not know Dr Breusch but that combination of matters suggests that, at the time, Mr McKenzie was quite unwell. Dr Akkerman also thought it was quite significant that, at that stage, Mr McKenzie was reporting his problems - his experience with police officers around that time was that they wished to be tough and admitting psychological problems was not part of their image. This was especially so in country towns where word got around when people were seen in the waiting room. 84 In cross-examination, Dr Akkerman was questioned about his diagnosis having regard to the standards set out in the Diagnostic Statistical Manual, DSM-IV-TR. Dr Akkerman accepted that, in the case of both conditions, they needed to reach a level of clinical significance before they could be properly diagnosed. An indicator of clinical significance or otherwise was discomfort or interference with significant roles in life, including relationships at work. A major depression occurred where a person generally functioned at a normal level and then had a discrete period when their mood dropped. They were like that for a while and then went back to whatever level of function they had previously. That was to be distinguished from a low-grade depression which was considered to be part of a personality. The major depressive episodes that Dr Akkerman was able to describe were those set out in his June 2005 report where he said that Mr McKenzie suffered from major depression - he had poor sleep, initial and middle insomnia, poor concentration, poor memory, no energy, no interest in things, poor libido, and was irritable and tearful. In 2005 Mr McKenzie had told him that these were the matters he suffered over the past four or five years. 85 Dr Akkerman agreed that it was possible for someone to have post-traumatic symptoms without having the full-blown disorder. A patient could suffer from depression and some symptoms of post-traumatic stress disorder but not sufficient to meet the threshold for a diagnosis. It was possible for someone to have the symptoms ultimately developing into the disorder but have the disorder develop at a later period of time. When asked if that was what happened to Mr McKenzie, Dr Akkerman said that was a difficult question. He had not examined him in late 1989 and early 1990. He had symptoms of post-traumatic stress order then but from those descriptions, he could not tell whether he had the full blown syndrome because some of the more important symptoms were not described by him, by his wife, Dr Breusch or Dr Roberts. That exact issue was the reason his own diagnosis was delayed. Post-traumatic stress disorder could fluctuate in severity depending on what was happening in the person's life. It was possible that at times Mr McKenzie would have satisfied the criteria for pos-traumatic stress disorder and at other times his condition would ameliorate and he would not reach the criteria and later deteriorate again and so it could continue. 86 Dr Akkerman was asked what occurred between his reports in September 2006 and late October 2006 that led him to add the extra diagnosis of post-traumatic stress disorder. Because it happened three years ago, Dr Akkerman could not remember exactly what occurred but thought it was likely to be a combination of Mr McKenzie telling him something further and spending some more time thinking about the issues. On a review of his file, Dr Akkerman acknowledged that Mr McKenzie had sent him a number of letters. On 17 October 2006, Mr McKenzie had written to clarify a previous letter and noting that, at the time of his resignation, he was on sick report for stress. The letter said Mr McKenzie did not mention it in his letter of resignation and therefore it was only "the post-traumatic disorder that I am clarifying with you". Dr Akkerman could not recall the circumstances of receiving that letter but it suggested that he reviewed his symptoms and asked Mr McKenzie more specific questions and as a consequence, decided that he did meet the criteria rather than having symptoms of it. By that stage he was satisfied that Mr McKenzie met all the criteria for that diagnosis although that was not apparent to Dr Akkerman when he first saw Mr McKenzie. When that diagnosis was added it spoke of the situation at that time. Dr Akkerman was still not sure whether Mr McKenzie met the DSM-1V-TR criteria for post-traumatic disorder in 1989 but after revision, he concluded that he did reach it in late October 2006. He remained confident that he had reached the diagnostic criteria for major depressive disorder at an earlier stage. In relation to the symptoms experienced by Mr McKenzie within the last four to five years (that is, approximately 2000 - 2001) Dr Akkerman said it was quite common for patients to have poor recall of events and it was quite common for people to tell him part of the story at first and later after they have thought about it or talked to someone else, they realise that actually it had been present for much longer. Mr McKenzie had a major depressive disorder when he resigned in 1990 and that was more than simply feeling "down". 87 Dr Akkerman was asked if Mr McKenzie had experienced a number of traumatic events as a police officer, did it make sense that he would not have complained about those traumatic events in November 1989 when seen by Dr Roberts. Dr Akkerman's view was that it made a lot of sense and that one of the diagnostic criteria for post-traumatic stress disorder was avoidance. Patients could go to extraordinary lengths to achieve avoidance and they did not generally like telling their doctor about what happened to them and often preferred not to talk about it. In Dr Akkerman's medico-legal work, one of the indicators that a patient might be telling him an exaggerated story was when they told him in great detail about the trauma they had experienced. People tended to avoid that and that is what happened with Mr McKenzie. Mr McKenzie did not tell him much about those experiences. 88 Mr McKenzie had informed Dr Roberts of the difficult situation that had arisen with a senior officer but Mr McKenzie had not given that history to Dr Akkerman if regard was had to his reports. Dr Akkerman said he knew about that incident but could not recall how he knew about it - whether or not he had been told or had read it somewhere. Dr Akkerman could not recall when he became aware of Mr McKenzie's problem with a senior officer. Dr Akkerman accepted that, if a police officer was asked to do something unethical and it had reached the stage where he did not want to go to work, hated work, vomited before leaving for work and generally avoided the person and felt that his future in the Police Service was not looking bright, it may possibly lead to a person feeling a bit depressed and it was possible that such a background would be consistent with a conscious decision to leave the Police Service. 89 At Dr Robert's initial consultation there was a relatively confined number of symptoms described by Mr McKenzie but Dr Akkerman noted that a mental status examination was not conducted in that report. There was a record of the history given by Mr McKenzie but Dr Roberts did not outline his opinion regarding mood, concentration, memory, whether or not he was cheerful - these things were not dealt with in the report. A mental status examination involved observing a person and making judgments based on experience and observation of that person. Dr Akkerman regarded that as an extremely important part of a psychiatric examination. In the absence of that approach there was insufficient reason for Dr Roberts to confirm or deny that there was a diagnosis. 90 In Dr Akkerman's view there needed to be a record made of observable signs of conditions: in major depression that would be looking for depressed moods, poor concentration, poor memory, irritability and tearfulness and with post-traumatic distress disorder there were four main observable symptoms, namely, getting upset when stresses were described, preferring to avoid reference to stresses, being easily startled and being hypervigilant. There were other things that could not necessarily be seen such as lack of sleep or poor sleep and the patient's word had to be taken on those matters. In relation to Dr Robert's report there was no history given of traumatic events but Dr Akkerman stated that those traumatic events were recorded yet Mr McKenzie did not mention them and that was a form of avoidance. It could mean that they were not troubling him at that time but that is why the medical practitioner had to record observable signs and comment because there were several explanations why those traumatic experiences were not discussed. In fact, Mr McKenzie did not discuss those traumatic events with Dr Akkerman for some time and so he had a very good inkling why Mr McKenzie did not tell Dr Roberts about them. Mr McKenzie did not want to talk about them because when he talked about them he became upset and it hurt him. The reference to difficulties with his senior officer may have been the matter that was worrying Mr McKenzie at the time. In making a retrospective diagnosis of what may have been the diagnosable psychiatric condition as at 1990, he was relying upon what Mr McKenzie told him he was feeling. Dr Akkerman was aware that there were some problems since 1990 with Mr McKenzie's career as a solicitor. 91 Dr Akkerman was shown a lengthy letter written to the Legal Services Commissioner by Mr McKenzie in 2002 concerning inquiries being conducted into his practice. Dr Akkerman proceeded on the basis that he was being asked to address a serious matter. He noted that poor concentration was an issue when the person was doing things that were not of great importance. The more important the matter, the more emotional significance something had then the better a person could concentrate and remember things. This was a serious matter being responded to by Mr McKenzie but Dr Akkerman could not tell from reading the letter whether his concentration at the time was temporarily normal or normal all the time. He could not tell from that letter whether Mr McKenzie was suffering from a clinically significant major depressive disorder. Nor could he tell if he was suffering clinically significant post-traumatic stress disorder by reference to this letter. 92 It was put to Dr Akkerman that Mr McKenzie was dealing with a number of difficulties in his legal practice, losing money and possibly had money and family worries. Against that background Mr McKenzie had said he was spiralling out of control, as described when Dr Akkerman saw him for the first time, yet had been able to function at some level for approximately 14 years up to that time: was this more likely than not to be the cause of his spiralling out of control, namely, something that happened reasonably close to that time? In dealing with that question, Dr Akkerman said it was possible and was also impossible. He did not know whether the symptoms continued while he worked as a solicitor or came back at a lower level so as not to justify a full diagnosis but these things were not known but eventually the issues did return. Mr McKenzie had already suffered from a psychiatric condition and therefore his vulnerability did develop a second, third or fourth episode, if that is what happened, and would be much greater. The problems in his professional and family life or a combination of them could lead to him becoming unwell again, if he had become well prior to that, but Dr Akkerman did not know whether that was the case or not. He accepted that it was difficult to gauge whether or not Mr McKenzie was incapacitated for police work as at 1989 or 1990, especially because Dr Akkerman was not present then. In making his own diagnosis one issue was the accuracy and honesty of Mr McKenzie's symptoms over a period of time and another issue was internal inconsistency and the other information that existed. namely, that he reported the matter, he saw a general practitioner, he told Dr Roberts about quite a few symptoms and although Dr Roberts decided they were not important, Mr McKenzie had still complained about them and these were all consistent with him being unwell at the time. At the time his general practitioner thought that these symptoms were clinical in nature and gave him time off work. At this stage he had been prescribed Frisium and that could be prescribed for general anxiety. 93 Dr Akkerman did not regard his two reports to the Superannuation Trustees as medico-legal reports because he had see Mr McKenzie on numerous occasions. When a person was seen for a medico-legal consultation, a number of questions were asked and it could be quite confrontational. However, when seeing a patient for the first time a doctor tried to develop a rapport and that was not achieved by asking a number of questions which indicated that they were not being believed. A treating doctor therefore slowly and gradually worked through these things in developing a bond with the patient and that was very important. If a patient did not like you or trust you as a doctor, you were not going to get anywhere with them. 94 It was not until October 2006 that Dr Akkerman took a history of the traumatic incidents in which Mr McKenzie was involved. He assumed that time scale because that it when he received letters from Mr McKenzie and he assumed there was some legal reason for that but until then Mr McKenzie had been keeping those things from him and he assumed he was avoiding them. There may have been some legal reason why he wanted those issues to be addressed and Mr McKenzie may have wanted to ascertain whether or not he was suffering from post-traumatic stress disorder. He was then asked whether he had been exposed to severe stresses. Dr Akkerman's habit was to ask for the three worst examples and any of them, in his opinion, could lead to a clinical post-traumatic disorder or delayed onset. There was, however, insufficient information to say that had occurred here. Mr McKenzie at the time definitely had symptoms of post-traumatic distress disorder but there was not enough information to say whether or not he had reached the DSM-1V-TR criteria. There was a technical issue that arose: if a person developed a symptom immediately but did not reach the full-blown disorder until later, was that to be described as delayed on-set or not? If they had the symptoms and it just got worse, was that delayed on-set? It was just a question of semantics. 95 When asked whether the major clinical dysfunction, in terms of not being able to function in society or work, actually occurred in 2003, Dr Ackerman said that, if it was accepted that Mr McKenzie was capable of giving a reliable history, the answer was yes but he strongly suspected that he was unwell for a long time but being a high functioning person was still able to function reasonably well but not to his normal level of functioning. He thought that Mr McKenzie was impaired all the time that he worked as a solicitor but he was still capable of doing some work. If he had not had the illness he would have been able to do much more. 96 Dr S G Young saw Mr McKenzie on 16 occasions from mid-May 2004 until mid-March 2006. He supplied two reports dated June 2006 and August 2007. Dr Young stated that he first treated Mr McKenzie for post-traumatic stress disorder in approximately mid-October 2004 just after his third consultation. He was treated with medication and assessed for psychological treatment and referred to a psychologist for management of his problems. He had several sessions with the psychologist with some improvement and then was referred to Dr Akkerman, Psychiatrist, for medication adjustment. As at June 2006 it was recorded that he was still seeing Dr Akkerman and would need to see both Dr Akkerman and Dr Young on a long term basis. Dr Young expressed the view that Mr McKenzie's current problem was directly caused by his police work. 97 In his second report, Dr Young stated that he believed Mr McKenzie was suffering from post-traumatic stress disorder, noting that he had a long history of working in the Police Service and experiencing traumatic events. He had not received any counselling after these events and the culture at the time was to "get on with things". He noted that it was felt to be an unacceptable weakness if Mr McKenzie was upset by these incidents. He had received treatment with various anti-depressants and counselling and had seen a psychiatrist, Dr Akkerman, on a regular basis. He continued to have symptoms and had recently suffered a marriage breakup. Mr McKenzie would require ongoing psychological support and medication. Given the length of time he had suffered from post-traumatic disorder and the optimal response to treatment so far, Dr Young was not optimistic that his prognosis would be favourable. At the date of that report, Dr Young could not, at least in the foreseeable future, see Mr McKenzie able to return to his previous occupation or one that suited him. Dr Young was not required for cross-examination. 98 Mr Rudd de Bakker was a clinical psychologist who had provided two reports dated August 2007 and October 2007. In the first report Mr de Bakker said that he had seen Mr McKenzie from late November 2004 on 10 occasions until mid-November 2005. He stated that Mr McKenzie had cancelled appointments on a regular basis because of financial reasons and possibly to avoid confrontation with his traumas. He was stressed, anxious and felt suicidal. This had to be addressed to stabilise his emotions. This course was necessary to be able to cope with an extensive cogitative de-sensitisation behavioural treatment for post-traumatic distress disorder. He recorded Mr McKenzie's resignation for the Police Service in March 1990 and the fact that, during SWAT operations, Mr McKenzie was exposed to events that involved possible threatened death or serious injury. Mr McKenzie had clearly remembered a few specific events, including a shooting near Armidale where a gun pointed near the head of an assailant had accidentally discharged. He also referred to finding a man in bed with a gun under the sheets during a house search who could have killed the police officers present. Mr de Bakker stated that "it seems" that, in early 1990, Mr McKenzie could no longer cope with his duties in the Police Service and as a consequence, resigned. 99 In Mr de Bakker's professional opinion, at the time he was seeing Mr McKenzie, he was suffering from major depressive order and post-traumatic stress disorder, chronic, as described in the Diagnostic and Statistical Manual of Mental Disorders, 4ed, text revised (DSM-IV-TR). It was known that depressive symptoms and disorders were very common in people who suffered from post-traumatic stress disorder. The diagnosis was based upon Mr de Bakker's clinical observations and Mr McKenzie's complaints. It was noted that Mr McKenzie suffered from recurrent thoughts and recollection of events and that sometimes he felt he was reliving those events. Mr McKenzie was anxious and tried to avoid contact with people or places that were or could be associated with his traumas. He was not interested and felt no motivation to go to his job and felt he could not cope with any form of stress or time pressures. He had severe sleeping problems, difficulty concentrating and was irritable and also described suicidal thoughts. Medication prescribed by his general practitioner, did not appear to have the desired results. Mr de Bakker advised Mr McKenzie to see a psychiatrist and was referred to Dr Akkerman. Mr McKenzie stopped seeing Mr de Bakker after beginning treatment with Dr Akkerman. 100 In relation to prognosis Mr de Bakker said that the symptoms of PTSD and the relative predominance of re-experiencing avoidance and hyperarousal symptoms could vary over time and many PTSD sufferers had symptoms for longer than 12 months after the trauma. Symptoms could intensify in response to reminders of the original trauma, life stressors or new traumatic events. During their lifetime individuals experienced a waxing and waning of their symptoms. Mr de Bakker said that, if Mr McKenzie still suffered from PTSD at the present time, then in his opinion the prognosis was very negative. There was a possibility he would suffer from the symptoms during his lifetime. Chronic PTSD reacted, in his experience, only marginally to any form of psychological treatment. He noted that he had not seen Mr McKenzie for nearly two years. In his October 2007 report, Mr de Bakker expressed the opinion that Mr McKenzie was medically incapacitated to perform the duties of a police officer and that his incapacity was related to his major depression and more so to his PTSD. Mr McKenzie had resigned from the Police Service in March 1990 and Mr de Bakker's opinion was that his condition had deteriorated in early 1990. He resigned as he was no longer able to cope with the duties of his office. Mr McKenzie would be incapacitated for the foreseeable future and his PTSD was chronic. Mr de Bakker was not required for cross-examination. 101 Professor Alexander McFarlane provided three reports to Mr McKenzie's solicitors commencing with an October 2007 report followed by April 2009 and May 2009 reports. Professor McFarlane completed his specialist training in psychiatry in 1980 and since 1983 his area of particular speciality had been the effect of traumatic stress. Amongst his roles, he was the Senior Adviser in Psychiatry to the Australian Centre for Post-Traumatic Mental Health and the Australian Defence Force. In relation to medico-legal experience, the Professor had provided written reports for the United Nations about the compensation commission for the Iraq occupation of Kuwait, had been engaged by the Ministry of Defence in the United Kingdom relating to Falkland Island, Gulf War and Northern Ireland veterans and acted as a special advisor for the Department of Veteran Affairs. The Professor had published over 250 articles and chapters on PTSD and related topics. 102 In July 2007 he had interviewed Mr McKenzie for three hours. Mr McKenzie gave a history of his work in the Police Service at various locations stating that he had decided to leave the Police Service as the stress was getting to him and he had conflict with the head of detectives in Armidale about the falsification of crime statistics. He had commenced studying law and then worked in a number of law firms. He bought a conveyancing practice in Maclean in January 2003 and then his mental state began to decline and he could not concentrate and made mistakes so he sold the practice after his wife noticed his declining performance. Late in 2004, after six months off work, he saw a doctor. His difficulty in focusing and organising himself, combined with his increasing avoidance of clients and irritability led his general practitioner to diagnose depression and he was referred to a psychologist. The psychologist diagnosed post-traumatic stress disorder and suggested that Mr McKenzie see a psychiatrist, Dr Akkerman. 103 In relation to psychological problems, Mr McKenzie was not sleeping, abusing alcohol and felt depressed. In 2003 the situation declined at a rapid rate with a good day consisting of drawing the blinds and spending the day alone. He could not understand what was happening because he had an easy job and a good business. He was very withdrawn, avoiding going to school functions and was cranky with his children over petty matters. He avoided his friends and knew there was something wrong because he was sitting up until 1.00am and drinking a bottle of scotch by himself. It was not until he began discussing his emotional state with Dr Young that he became aware of how he was feeling. Since leaving the Police Service he had intermittent memories, thinking back to situations and the fact that he was "mad" to have done some of the things he had done. He began to wake up in the middle of the night sweating, a problem that began in 2003. He had not slept well since that time and did not understand what triggered his symptoms that year. He was permanently worried and felt sick about every bad scenario with everything that was going on. He was worrying about his marriage, his children, his work and his finances. The incidents that played on his mind were not the ones that were the greatest threat to him but he remembered a house search in Armidale where he had failed to detect that a sleeping man had a loaded rifle under the sheet and he had fallen on to the barrel and pushed it into the bed and feared that this could have cost him and the other officers their lives. He said this scene was like a movie that went over and over in his mind. He also mentioned the inadequate search at a motor vehicle accident in Sydney where an injured person could have been left in the car and towed away and not been detected for months. Those memories came to mind during the day and night for no reason and he was unable to identify any triggers other than newspaper reports of shootings or serious car accidents. He spoke of the hostage situation at Guyra and the discharging of a rifle and how the incident began playing on his mind before he left the Police Service. One incident causing real nightmares was discovering the burnt body of a child. 104 In relation to his personality, Mr McKenzie said that he previously saw himself as "joyful and laid-back". He was very sociable organising fundraisers and school golf days etc. In relation to his personal history, he said he was well cared for and he had no other traumatic experiences in his life. 105 In relation to his mental status examination with Professor McFarlane, he said that Mr McKenzie's behaviour at the interview was co-operative and generally unremarkable except that he became overtly tearful when he was describing the incident where he had found the burnt body of a young child. On other occasions his body language graphically depicted his behaviour in particularly traumatic environments. His description of his symptoms was colloquial and given in an individual manner rather than professional language. Professor McFarlane said that was an important observation as it indicated that his description of his symptoms were not contrived, learnt or indicative of medical jargon which he had adopted in the course of his treatments. He now had insight into the nature of his difficulties and appreciated his professional relationship with his treating psychiatrist. Nevertheless, he was amused by his lack of reflectiveness and understanding of his symptoms prior to his wife suggesting that he should seek medical attention several months after he gave up his last business. Mr McKenzie thought the assessment he had with the psychiatrist in 1990 while on sick leave left him with the impression that he did not have a diagnosable condition although he only saw himself as being depressed at the time. When Professor McFarlane queried him about his knowledge of these matters, Mr McKenzie said that he had, at a professional level, performed little personal injury work and had concentrated on conveyancing, criminal law and commercial matters. 106 In his diagnostic assessment, Professor McFarlane stated that, on the basis of the history he obtained, he was of the view that Mr McKenzie had suffered from post-traumatic distress disorder, major depressive disorder and intermittent binge alcohol abuse. There was also a question of whether he satisfied the diagnostic criteria for obsessive, compulsive disorder. The longitudinal course of his symptoms had involved periods where the symptoms of one condition had tendered to dominate over another: for example, in 2003 when Mr McKenzie ceased working his symptomatology appeared to have come to the fore. His post-traumatic stress disorder did not appear to relate to a particular incident but rather to a number of experiences he had endured in the course of his career as a police officer. Referring to the incidents recounted to him, Professor McFarlane said those incidents particularly filled him with a sense of threat, fear and horror - at various times during the day he had spontaneous recollections of them. He also had dreams that were trancelike states where the events or incidents would play on his mind and he would awake in a state where he found it difficult to separate his current situation from the dream. There were particular triggers for those memories such as hearing news stories about police shootings or major motor vehicle accidents. His avoidance was manifested in several ways. The distress associated with his traumatic recollections made him actively try to shut out or avoid those recollections. There were a number of circumstances or situations where he would not go because they brought back memories: for example, when going to Sydney he avoided the eastern suburbs where he worked as a detective and would not go back to Forster where he had been confronted by a criminal after his release and threatened in a hotel. 107 Mr McKenzie referred to a general sense of detachment in his relationships and a sense of emotional numbing and no longer having the same range of emotions as previously. He had become significantly more socially withdrawn. He had a foreshortened sense of the future and actively contemplated suicide. He satisfied the criteria of having six of the seven avoidance and estrangement criteria when only three were required to satisfy this component according to DSM-IV. He had a significant problem with his memory and concentration and they were a major factor in leading to the cessation of his legal practice. He had significant difficulties with increased irritability and was having marked hypervigilance. He had an exaggerated "startled response" and significant sleep disturbance. Those symptoms had been present for more than one month and were a significant cause for distress and disability. 108 Mr McKenzie also had significant major depressive symptoms and they were an important contributing factor to his initial presentation to Dr Akkerman. He had a disturbance of mood with associated despondence and loss of motivation which lasted more than two weeks. He had associated suicidal thinking, disturbances of sleep and problems with memory and concentration. He appeared to have had intermittent symptoms of depressed mood dating back to 1990. There had been a greater degree, therefore, of fluctuation of his mood disturbance than of his underlying post-traumatic symptoms. On this basis a diagnosis of major recurrent depressive disorder was diagnosed. He also had episodes indicative of panic attacks but a separate diagnosis was not warranted. The majority of panic attacks occurred in the context of specific environmental triggers, including public places where he may meet individuals with whom he had contact during his police career. His current pattern of alcohol consumption was not indicative of a pattern of abuse and this condition was currently in remission. 109 Professor McFarlane then directed his attention to Mr McKenzie's Statement of Claim filed in other proceedings and the incidents he had experienced while serving in the Police Service. In that context he was then asked to comment upon a number of medical reports that had been provided in relation to Mr McKenzie's condition. Professor McFarlane noted a number of facts recorded as part of Mr McKenzie's history and make other comments about the reports. In relation to Dr Akkerman's reports of 21 September 2006 and 31 October 2006, Professor McFarlane noted that those reports were brief and did not contain aspects of the history upon which the opinion was based. In relation to Dr Robert's report of 30 November 1989, he commented that the report demonstrated that a detailed psychiatric assessment of certain symptomology was taken by Dr Roberts. However, he did not take a specific history of Mr McKenzie's traumatic incidents. Dr Roberts came to the conclusion that Mr McKenzie's nausea and vomiting had no psychiatric origin but it was clear that Mr McKenzie was not suffering from some other disorder which had subsequently been diagnosed to explain those symptoms. In Professor McFarlane's view, combined with his intermittent abdominal pain and diarrhoea, it was probable that those symptoms were part of the general complex of irritable bowel disorder. At the time Mr McKenzie had a depressed mood albeit with a lack of pervasive mood disturbance associated with vegetative features. He did complain of shortness of breath and sleep disturbance but Dr Roberts did not take into account that, at the time of his assessment, Mr McKenzie was being treated with Benzodiazepine. That drug was likely to have affected his symptomology at that time and it was noteworthy that Mr McKenzie's hyperarousal symptoms in conjunction with his fluctuating depressed mood continued in the absence of the work environment. 110 Professor McFarlane then made the following comments on Dr Robert's report: Dr Roberts erroneously concluded that the continuance of his mood and anxiety symptoms when he did not attend work meant that the work environment could not have been the cause. What his reasoning fails to take into account is that a psychiatric condition which involves disturbance of mood and hyperarousal is not necessarily reactive to external stimuli. These disturbances take on an endogenous or internal quality where the illness itself drives the symptoms and that is not a simply reactive factor to the external environment. Objectively, these symptoms remained in the setting of the interview with Mr McKenzie having a pulse of 96 and moist palms which are consistent with a pattern of hyperarousal. Whilst Dr Roberts conducted a detailed review of some anxiety symptoms, he did not systematically examine the symptoms of posttraumatic stress disorder. Some symptoms were reported such as sleep disturbance, decreased sense of optimism about the future, a pattern of increased arousal and physiological distress when exposed to circumstances that remind him of traumatic incidents namely his work environment and disability, namely inability to attend work. However, his memory and concentration were not significantly affected and he had been able to continue studying for a Law Degree. In my view, the underlying hyperarousal that is associated with a posttraumatic stress disorder is likely to have been manifest at this time. This relationship is well documented in literature (McFarlane, "Stress-related Musculoskeletal pain: Best Practice & Research Clinical Rheumatology, 2007, Vol 21, pp 549-565). There is a relationship between irritable bowel syndrome and post-traumatic stress disorder, with a similar underlying mechanism of sensitisation. Therefore, whilst Dr Roberts' report contains important factual information, it does not assess symptoms of posttraumatic stress disorder and as a consequence, the nature of the link between Mr McKenzie's symptoms and his workplace was not defined. Posttraumatic stress disorder was included in DSM-111 in 1980 and considerable attention had been brought to this disorder in the intervening years in the psychiatric literature. 111 In relation to Dr Robert's second report dated 30 November 1989, Professor McFarlane made the following comment: Dr Roberts further states that "whilst it is well recognised that external environmental circumstances may give rise to psychiatric illness, these external stressors need to be major. I append the definition of a posttraumatic neurosis which gives some indication as to the magnitude of forces which need to impinge upon an individual to produce an 'illness'. · Comment This entry is noteworthy because it demonstrates that Mr McKenzie was not behaving in such a way as to exaggerate or over emphasise his symptoms in the workplace, although he had complained to his medical practitioners about this. Mr McKenzie was being told as a consequence of his consultation with Dr Roberts that he had not been exposed to events of the type that could lead to " posttraumatic neurosis". This also demonstrates that Dr Roberts was aware of this condition. However, it appears that he failed to specifically enquire from Mr McKenzie as to the nature of his exposures to events of the type that could lead to this condition. 112 Professor McFarlane was then asked to address the relationship between Mr McKenzie's employment and his current condition. It was noted that Mr McKenzie had presented a history of increasing symptomatic distress while working as a police officer and was becoming increasingly nauseated and distressed, particularly in the morning. It had already been recorded that he had a range of associated symptoms and they arose in the setting where Mr McKenzie had experienced specific traumatic events. His anxiety symptoms and sleep disturbance at this time indicated that he had a pattern of significantly increased arousal and this had an anticipatory component to it, namely, it was triggered by Mr McKenzie "moving to his workplace". The existence of his subsequent distressing and intrusive recollection, including the nightmares focusing on the body of a burnt child in a house fire, indicated his hyperarousal was specifically associated with traumatic memory structures arising from his work environment. In relation to this matter, Professor McFarlane continued as follows: This history is in keeping with a pattern of sensitisation (see Attachment 1) where his reactivity to potential threats or distressing memories was progressively increasing during the course of his police service. This is in keeping with the aetiology of posttraumatic stress disorder where the individual develops a conditioned fear response upon exposure to a horrific or distressing event that does not progressively distinguish with time. Rather, the amplitude of Mr McKenzie's reactivity progressively increased with exposure to reminders and was further reactivated by him having to contend with other distressing events in the course of his police work. It is also known that stresses interact with posttraumatic stress disorder and will increase the amplitude of an individual's anxiety. At the time Mr McKenzie saw Dr Roberts, he had chosen to take a position on the alleged falsification of statistics by a senior officer. For an individual officer to take such actions, an individual such as Mr McKenzie is placed at the risk of approbation of his colleagues and seniors. In so doing, the social support that he is provided with in the workplace is likely to be undermined. Social support is an important protective factor in the aftermath of traumatic events. Therefore, Mr McKenzie's history demonstrates how he had developed a series of traumatic memories that were directly a consequence of his exposure to these accidents, crimes scenes and incidents. No steps were taken by the NSW Police Force to provide assistance or treatment to deal with his increasing symptomatic distress other than the referral to Dr Roberts which did not lead to any appropriate intervention. In this regard, his exposures and the failure of any intervention by the NSW Police Force have initiated his condition and led to its chronicity.

McKenzie v SAS Trustee Corporation

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