Melanie Sills v State of New South Wales - [2018] NSWDC 119 - NSWDC 2017 case summary — Zoe

NSWNSWDC

Melanie Sills v State of New South Wales

[2018] NSWDC 119

District Court of NSW|2017-12-14

View original source

At a glance

Source facts

Court

District Court of NSW

Decision date

2017-12-14

Catchwords

Negligence
psychological injury
(1981) 148 CLR 438 Hegarty v Queensland Ambulance Service [2007] QCA 366 Koehler v Cerebos (2005) 222 CLR 44
[2005] HCA 15 March v Stramare [1991] HCA 12

Source

Original judgment source is linked above.

Catchwords

Negligencepsychological injury(1981) 148 CLR 438 Hegarty v Queensland Ambulance Service [2007] QCA 366 Koehler v Cerebos (2005) 222 CLR 44[2005] HCA 15 March v Stramare [1991] HCA 12(1991) 171 CLR 506 Purkess v Crittenden [1965] HCA 34(1960) 108 CLR 148 Wyong Shire Council v Shirt [1980] HCA 12

Judgment (30 paragraphs)

[1]

INDEX PARAGRAPH INTRODUCTION 1 THE DEFENCE 9 THE PLAINTIFF'S EVIDENCE 13 CROSS-EXAMINATION OF THE PLAINTIFF 85 Evidence of Ms Joan Raper 132 Evidence of Ms Patricia De Riviere 147 THE EVIDENCE IN THE DEFENDANT'S CASE 162 Evidence of Chief Inspector Kim Sorenson Evidence of Chief Inspector Rodney Mark Peet 179 Evidence of Chief Inspector Timothy Harold Winmill 195 Evidence of Ms Debra Anne Boswell 209 Evidence of Inspector Chevonne Greene 218 THE PLAINTIFF'S MEDICAL EVIDENCE 222 The Plaintiff's Initial Treatment and Referral to the Police Medical Officer and Police Psychologist The Plaintiff's Closed Period Workers Compensation Claim 229 The Plaintiff's Treatment from 2011 235 THE DEFENDANT'S EVIDENCE 276 THE DEFENDANT'S MEDICAL EVIDENCE 280 FACTUAL FINDINGS 298 FINDINGS ON THE MEDICAL EVIDENCE 299 DEFENDANT'S SUBMISSIONS 301 THE PLAINTIFF'S SUBMISSIONS 339 SUBMISSIONS IN REPLY 363 ISSUES TO BE DETERMINED 366 LEGAL PRINCIPLES 368 DETERMINATION 378 Did the Defendant breach its Duty of Care? 403 Causation DAMAGES 404 ORDERS 410

[2]

Introduction

The plaintiff's claim is for damages for an injury she suffered at work between May 2003 and 7 June 2012, when she was medically discharged from the New South Wales Police Service. The plaintiff served as a police officer during that period. She alleges that in that service she was exposed to numerous traumatic incidents, as a consequence of which, she suffered a psychological and/or psychiatric injury.
By a Further Amended Statement of Claim ("FASOC") filed with leave on the first day of the hearing, the plaintiff has sued the defendant as the entity responsible in law for the tortious acts of the Commissioner for Police and his officers. The plaintiff has pleaded that the defendant owed her a duty of care to avoid exposing her to a foreseeable risk of injury, including the risk of psychiatric or psychological harm, and that such duty was a non-delegable duty. In respect of that duty, the plaintiff further pleaded: "8. The duty referred to in paragraph 7 above required the Defendant to institute and maintain systems of work which would: (a) Identify officers who, as a result of their duties, were at risk of suffering, and were suffering, psychiatric or psychological harm; (b) take steps to ensure that any officer identified as suffering psychiatric or psychological harm as a result of their duties, received appropriate treatment and support to alleviate or lessen the effect of such injury; (c) take steps to ensure that any such officer was not required to perform duties likely to aggravate, exacerbate or perpetuate such injury without appropriate safeguards against such aggravation, exacerbation or perpetuation being in place; (d) to discharge any such officer from their duties pursuant to s 72A of the Police Act 1990 in the event that appropriate safeguards were unable to be implemented and maintained with respect to the performance of such an officer's duties. 9. The duty referred to paragraph 7 above also required the Defendant to: (a) ensure that its officers were adequately educated and trained so as to permit them to identify and take steps to protect officers under the control, command or under their authority (within the meaning of the Police Act) against psychiatric or psychological ham or further psychiatric or psychological harm; (b) draft publish, implement and enforce policies, guidelines, procedures and directives so as to ensure that the duty referred to at 7 above was adhered to by its officers and civilian employees; (c) obtain and maintain accurate records for the purposes of enabling it to take reasonable steps to permit it to perform the duties set out in paragraphs 7 and 8 above; (d) implementing systems to obtain relevant information and records to assist it in performing the duties outlined at paragraph 7 above and that outlined at 9(c); (e) upon the return to work of an injured officer and thereafter, to consult with appropriate persons in the workplace to identify hazards associated with the work environment and the associated systems of work and assess the risks of injury and further injury associated with the aforementioned hazards; (f) to eliminate or control the risks mentioned in paragraph 9(e). 10. The duty referred to in paragraph 7 above also required the Defendant to comply with the provisions on the Occupational Health & Safety Act 2000 and the Work Health & Safety Act 2011 in that as the manager and controller of the Plaintiff's workplace it was to ensure the workplace was safe and without risk of injury to the health and safety of the Plaintiff."
The plaintiff then particularised a number of traumatic incidents which she alleges gave rise to the injuries she sustained. They are referred to in the summary of evidence below.
The plaintiff has pleaded that she was absent for work as a result of the injuries she sustained between 18 August 2006 and 8 September 2006. She returned to work on restricted duties on 24 September 2006, and thereafter returned to general duties when she was again required to attend traumatic and stressful incidents in the course of her employment. They included a number of incidents in 2009, which the plaintiff particularised.
The plaintiff claims that her injury was caused by the negligence of the defendant, particulars of which are as follows: "Particulars of negligence A. Failure to provide, institute and maintain a safe system of work in thecircumstances where the defendant knew or ought to have known of the riskof injury to the plaintiff. B. Failure to devise, institute and/or maintain a safe place of work in thecircumstances with the defendant knew or ought to have known of the risk ofinjury to the plaintiff. C. Failure to devise and have in place a system to adequately and properly warn the plaintiff of the risks of psychological and/or psychiatric injury fromexposure to traumatic incidents, and from the conditions of her workplace. D. Failure to devise and have in place a system to adequately and/or properlyeducate, train and advise the plaintiff in relation to the safe performance of her duties as a police officer so as to avoid the psychological and/or psychiatric effects of exposure to work related traumatic incidents and working conditions, where the defendant knew or ought to have known of the risk of injury to the plaintiff; such education, training and/or advised to include but not be limited to:- (i) Recognition of signs and symptoms of any psychiatric and/or psychological condition; (ii) Upon recognition of signs and symptoms of any psychiatric and/or psychological condition, the necessity to seek appropriate treatment in the nature of debriefing, counselling and other intervention in order to reduce and/or eliminate the condition. E. Failure to devise and have in place a system to screen or assess the plaintiffs suitability in terms of the likely effect upon her psychiatric/psychological condition of her attending traumatic work incidents, being engaged in stressful work conditions, and dealing with threats, deceased persons and those involving the abuse and violence towards children, and dealing with assaults and other traumatic events. F. Failure to devise and have in place a system to adequately and properly monitor the effects of traumatic work incidents and conditions of working and the psychological effect of same upon the health of the plaintiff. G. Failure to disclose and have in place a system to adequately and properly train and supervise the plaintiffs superior officers so as to allow them to monitor the effect of traumatic work incidents upon the plaintiff. H. Failure to heed the complaints made by the plaintiff as to the lack of support as would have facilitated proper detection of the risk of psychiatric and or psychological injury and allowed effective remedial action; resulting in psychiatric and psychological injury to the plaintiff. I. Failure to devise and have in place a system of counselling, debriefing and or other intervention to adequately and properly ensure that the plaintiff had available to her appropriate means of detecting and alleviating the psychological and/or psychiatric effects of traumatic work incidents. J. Failure to provide the plaintiff with any or any adequate respite from her duties. K. Failing to institute a system for educating police officers to counter the existing police culture that to complain of injury, particularly psychological or psychiatric injury; as a sign of weakness and likely to affect an officer's career. L. Failing to act upon recognisable signs of distress and anxiety displayed by the plaintiff. M. Failing to undertake any or any adequate welfare checks of the plaintiff following the plaintiff's reporting of her psychiatric injury. N. Failure to heed the plaintiffs complaints concerning exposure to traumatic events and traumatic material in circumstances where the plaintiff had expressed apprehension concerning same. O. Failing to have the plaintiff properly examined in circumstances where the defendant knew or ought to have known that to expose the plaintiff to further trauma would cause an exacerbation or aggravation of the plaintiffs condition and such an examination would preclude the plaintiff from performing full duties. P. Failing to protect the plaintiff from further exposure to stress in circumstances where the defendant knew or ought to have known the plaintiff was suffering from a psychiatric condition and that the exposure to further stressors would likely result in the plaintiff's incapacity for employment. Q. Returning the Plaintiff to general duties without ensuring that the recommendations of the police psychologist and the police medical officer were complied with. R. Failing to comply with the recommendation of the police psychiatrist and the police medical officer whilst the Plaintiff was continuing to perform general duties. S. Providing the Plaintiff with a redacted copy of the report referred to in paragraph 20 above when it knew or ought to have known that such was likely to: a. aggravate or exacerbate her pre-existing psychological condition, and b. lead the plaintiff to avoid communicating her symptoms andcondition to her superior officers, and c. lead the plaintiff to distrust her superior officers. T. Failing on multiple occasions to grant the plaintiff's request that she be transferred from general duties to other duties including Target Action Group District Anti-Theft Squad or Plain Clothes Duties, such requests have been made to Sergeant Trench, Inspectors Shiels, Sorenson, Eggleton, Peet and Hill. U. In circumstances where Dr Gertler had advised that the Plaintiff would remain at risk of suffering further injury if she were again exposed to the full range of duties of a general duties officer, failing to have the plaintiff's suitability to return to work in December 2008 assessed competently or at all."
The plaintiff further pleads that on 22 February 2010 she was transferred from general duties to the duties of an Exhibits Officer. The plaintiff claims that the defendant knew or ought to have known that she was vulnerable to a risk of psychiatric injury from exposure to further stressors in her duties as an Exhibits officer, and that she suffered aggravation, exacerbation and entrenchment of her pre-existing psychiatric/psychological condition and became incapacitated for employment.
The plaintiff alleges she has suffered a Post Traumatic Stress Disorder ("PTSD"), a Major Depressive Disorder ("MDD"), and an Anxiety Disorder as a result of the defendant's negligence. As the plaintiff's claim is brought as a work injuries damages claim, the damages are restricted to damages for economic loss. She therefore claims damages for loss of her earning capacity from 1 June 2011, together with the loss of other emoluments arising from her employment by way of overtime and shift allowances, together with loss of superannuation benefits.
The plaintiff was born on 17 September 1977 and was 25 years of age when she was attested as a Probationary Constable on 2 May 2003. She was 34 years of age when she was medically discharged on 7 June 2012, and 40 years of age at the time of the hearing.

[3]

The defence

The defendant admits that it owed a common law duty of care which was non‑delegable, "to guard against its employees sustaining foreseeable injury or by exposure to the risk of injury and to have provided adequate safeguards". The defendant admitted it was required to institute and maintain the systems of work referred to in paragraphs 8(a) and 8(b) of the FASOC, but has not admitted the systems pleaded by the plaintiff in paragraphs 8(c) and 8(d) thereof. Further, it did not admit [9] thereof, except for [9(e)]. The defendant pleaded that the duty pleaded against it in [7] of the FASOC does not apply in this case, and the legislation referred to in [10] thereof does not give rise to an independent cause of action at common law for damages in negligence.
The defendant denied that it was negligent, and further pleads that the proceedings are not maintainable pursuant to s 151D of the Workers Compensation Act 1987. The parties agreed that a determination pursuant to s 151D should be made following the hearing, however, the defendant abandoned its reliance on s 151D during the hearing.
Otherwise, the defendant relied on workers compensation payments it had made as a defence, pleaded that the plaintiff had failed to mitigate her loss, and in addition, or in the alternative, pleaded that the plaintiff's psychological condition was caused or contributed to by her own negligence. The particulars of that claim are as follows: "37 In addition or in the alternative the plaintiff's psychological condition was caused or contributed by her own negligence particulars of which are: (a) Failing to report her symptoms at the earliest opportunity prior to 2006. (b) Failing to properly avail herself of counselling, EAP and chaplaincy Services. (c) Failing to report distress to superiors until August 2006. (d) Failing to report any issues of concern or distress whilst at exhibits and seek medical or counselling help. (e) Failing to disclose symptoms at debriefing sessions. (f) Failing to report symptoms as at the date of each incident to team leaders and superiors as pleaded in the Further Amended Statement of Claim. (g) Failing to immediately request a change of duties from exhibits upon symptoms of distress occurring. (h) Failing to seek medical attention prior to August of 2006."
Much of the history of events was not in dispute. The following summary of the evidence therefore contains my findings of facts, unless otherwise indicated. Specific factual findings, on which my determination of issues in the case are based, are referred to below at [298].

[4]

The plaintiff's evidence

The plaintiff gave evidence that she was born on 17 September 1977. After leaving school in year 12, she commenced work in a bank as a customer service officer in 1995. She married her first husband in 2000, and there were two children of that marriage.
In October 2002, the plaintiff applied to join the New South Wales Police Service. She commenced training at the Police Academy, at first in Richmond for three months, and then in Goulburn for a further six months. On 2 May 2003 she completed her training and was attested as a Probationary Constable. When asked what had made her join the Police Force, she answered: "A: I'd always wanted to. I always wanted to try and help people. I just had a passion for just the fast pace type of job, being outdoors."
The plaintiff was posted to Tuggerah Lakes Local Area Command ("TLLAC"). She remained there throughout her police service and worked at police stations at Wyong, Toukley and The Entrance.
The plaintiff commenced police work on 6 May 2003. On the first day she was required to attend the scene of a suicide. As the most junior officer present, she was directed to speak to some of the family of the deceased. She also assisted government contractors in putting the body of the deceased into a body bag. When picking the body bag up, one of the contractors lost her grip and dropped the deceased onto the ground, causing some distress to the family who were present. The plaintiff was asked: "Q: What affect did it have on you on that day? A: I was upset cause I had never seen a dead body before. I think it was more traumatising that the contractors had dropped him in front of the family."
In June 2003, the plaintiff gave evidence she attended another suicide, in this case, that of an elderly female who had taken an overdose of opiates. The deceased's husband was distraught and the plaintiff described it as a difficult job in which she had to remove the clothing of the body to assist a crime scene officer to identify whether anything suspicious had occurred.
In September 2003, the plaintiff attended the scene of an attempted suicide of a mother of three, and attended a number of motor vehicle accidents.
In October 2003, the plaintiff attended a domestic dispute in which a male offender had left the house they attended, but was located under a vehicle parked in the driveway, and was armed with a firearm, which he was pointing at police. She described this event as "stressful".
In December 2003, she attended a job in a caravan park where a person had overdosed in a caravan and the body had been there for a couple of weeks. That event she described as "traumatising".
The plaintiff gave evidence that in the first part of 2004 she continued to attend motor vehicle accidents, stabbings and the like. On 26 July 2004, she was on duty in a police vehicle when she and her partner got a call to attend a house fire at Doyalson. When they arrived at the premises, she was approached by a female who was frantic, and screamed at her that her child was in the house. The house was well alight and the plaintiff and her partner ran to the rear of the premises but were unable to break in. After the fire was extinguished, the body of a young child was found. During the fire, one of the fire officers was taken away, having collapsed inside the house when trying to get upstairs to rescue the child. He later passed away.
The plaintiff was tasked with interviewing neighbours and recording details of the their accounts as to what occurred. She was told by some of the neighbours that they had heard the woman screaming out, that they had come to the house and could hear the child calling out to his mother from the top story. She described that following that she was feeling "traumatised". She later learnt that the fire had been lit by the woman downstairs and the child had called out to her. She went upstairs to help him, and while she was upstairs the fire had spread. She went down to see where smoke was coming from, and the bottom storey of the premises was alight and she was unable to get back up the stairs to the child. The plaintiff gave evidence that by using the word "traumatised", she felt "physically sick", she was crying and stressed.
When she arrived home that evening, she threw away every candle, oil burner and matches in her house.
Within a day or so of that incident, the plaintiff was given a direction by Acting Superintendent Max Mitchell, that she should go and see the EAP, an acronym for the Police Employees Assistance Program. She had been given a brochure about that program at the Goulburn Academy and also attended a short talk on the EAP there.
The plaintiff gave evidence that she attended an EAP appointment with a female person in Newcastle where she was asked questions about the event, but not about how she was feeling. She left after half an hour and thought it was a complete waste of time. She did not feel any better for it and in fact, felt worse.
The plaintiff gave evidence that she refused to go back to EAP thereafter. She continued her normal duties which involved attending scenes which caused her some distress. In November 2004, she attended a cot death. This was the first occasion she had attended a cot death. She knew the mother of the child to be a drug addict who she had previously arrested. When police arrived, the mother was holding the baby, which was wrapped in a blanket, and she resisted giving the baby up to police. When the mother eventually handed the baby over, the plaintiff was asked by the crime scene officer to undress the baby while he took photographs of her, following which, she redressed the baby. When asked what affect that had on her, she answered, "It was upsetting, stressful, and I had numerous flashbacks from it".
When asked what the subject of her flashbacks were, she answered: "A: Just images of the body - of the trauma that I had seen, the deceased, the first job I went to, the male, would have nightmares and just see his face. Flashbacks in that I'd seen him lying there, but with one of my children - being one of my children, that's the best I can describe it."
After the fire at Doyalson on 26 July 2004, the plaintiff gave evidence that she would go to sleep and wake up believing that her house was on fire. She would run to her children's rooms and check on their welfare.
This started to affect her sleep and the plaintiff gave evidence that she was too scared to go to sleep, so she would drink alcohol in order to get to sleep. Her level of drinking increased over time. She also gave evidence of having nightmares during her sleep, which were different from flashbacks, which could occur at any time.
The plaintiff had started seeing Dr Abery, a general practitioner, in 2004 and in May 2005 she was then prescribed with an anti-depressant, Talohexal, and Zoloft. Those medications helped her. She became less teary, felt calmer and was not as anxious and agitated. She did not take Zoloft for long.
In December 2005, the plaintiff attended a scene at Blue Bay where a young man had drowned in a resort swimming pool. She and her partner provided CPR until an ambulance arrived. There was a group of young males present who became aggressive when they learnt that the young man had died, and she feared that she was going to be assaulted.
On 11 March 2006, the plaintiff was directed to a car park at Norah Head where a vehicle was alight with a male person inside. There was a large group of teenagers present in the car park area who witnessed the man setting himself on fire inside the vehicle. She had to assist in removing the deceased from the vehicle, during which, his clothes mostly melted away from him, or were stuck to the seat of the vehicle. She could smell burning flesh which stayed with her for a while.
Prior to that, in February 2006, the plaintiff had been spat on in the course of arresting a known drug addict. She became concerned about the possibility of contracting HIV and had regular blood tests for some time.
After the incident at the Norah Head car park, the plaintiff gave evidence that she suffered heart palpitations and had difficulty breathing at times. She became selective in the jobs that she undertook, turning off the police radio in the vehicle at times. Further, her drinking escalated. Before August 2006, she spoke to Sergeant Fred Trench and asked for a transfer to another area. Her purpose was to get "off the truck", which meant off general duties. He said: "A: You just put in your application as per protocol and see how you go."
The plaintiff did that by way of what was known as a "Godfrey Report".
In 2006 the plaintiff had formed a relationship and she planned to marry on 9 September 2006. In late July or early August 2006 she applied for leave for two weeks following the marriage, from 11 September 2006.
On 17 August 2006, the plaintiff suffered a panic attack whilst driving to work. She started having difficulty breathing and became very emotional. She had slept badly the night before and stopped her journey for about 15 minutes. During her shift she felt the same feelings of heart palpitations and panic, and began crying. She was approached by Sergeant Trench who asked her if she was okay. She told him that she was not, that she had been feeling nauseous and uptight about coming to work, and had suffered a panic attack on the way to work.
Sergeant Trench told her that she needed to go home and that she needed to see her doctor. She saw Dr Abery on 18 August 2006, and was given a certificate to be off work. A few days later she completed an Incident Notification Form, which became Ex A2.
The plaintiff was off work for a three week period prior to her wedding, however, there was no improvement in her condition. Her nightmares and flashbacks remained the same during the time she was off work and she continued to suffer them following her wedding.
On 26 September 2006, she returned to work following her leave, and found that her appointments had been double padlocked. The plaintiff was told by a senior officer that she was to have a "psych shoot" before she obtained her appointments back.
The plaintiff made a claim for workers compensation for the time that she had been off work dated 26 September 2006. From 27 September 2006, she performed duties inside the station.
On 9 October 2006 the plaintiff attended appointments with a police psychologist and a Police Medical Officer ("PMO"). Whilst on restricted duties she had seen a counsellor named Cheryl Roberts of the Hills Street Group, which was an injury management company. She had been given a book by Cheryl Roberts on relaxing, and attended two or three sessions with her. She felt better following that treatment, and on 20 October 2006 returned to full duties. At that time she was spoken to by a Chief Inspector, who may have been Chief Inspector Long, who told her that she could reduce her hours, however, she would not be guaranteed to stay with her existing team. That affected her however, because she had built up a rapport and friendship with the people who she had worked with. The reason for asking for a reduction in hours was because she did not want to do nightshift, which was when most of the traumatic incidents occurred.
Following her return to work, she was spoken to by Sergeant Chevonne Greene who told her she was a peer support officer. She had been put in charge to mentor the plaintiff in relation to the time she had off work.
The plaintiff then described an incident when she walked into the meal room at The Entrance Police Station, and Sergeant Greene was discussing with another senior constable personal details relating to another officer. The plaintiff believed that was not appropriate, given that she was a peer support officer. On the next occasion the plaintiff spoke to her, she had no discussion with Sergeant Greene about how she was feeling.
The plaintiff continued working in general duties from 20 October 2006 until she fell pregnant in May 2007.
In February 2007, the plaintiff attended a scene where an elderly man had been run over by a steamroller. She was not involved in the management of that scene, but took details from two men who were there, one of whom she believed to be his son.
In late March 2007, the plaintiff was directed to deliver a death message to some parents, and remembered them becoming upset.
The plaintiff was assigned light station duties when she was pregnant from May or June 2007, doing station duties. She was not exposed to any traumatic events during that period of time. Her baby was born in January 2008.
After the plaintiff made a claim for workers compensation for the time she had off in 2007, she was contacted by a Mr Briggs, who told her he represented the insurer. He interviewed her at The Entrance Police Station in about November 2006. She answered his questions about the time she had off. She subsequently received a letter from Treasury Managed Fund (Ex A15).
The plaintiff had received a document in her pigeon-hole at work, which was referred to as a 'Pre-liability Assessment Report". The document had the names of two police officers blacked out. The author of the document had stated that those officers were highly suspicious of her workers compensation claim. The plaintiff was upset by that, and held the document up to the light to discover that the names of those officers were Sorenson and Shields. The first was a Chief Inspector, who she had trusted and respected. The other officer was Sergeant Shields, who was one of her team leaders. He was also a person she trusted, looked up to and had sought advice from on occasions.
The plaintiff then sought legal advice about her workers compensation claim. She was examined by Dr Gertler in August 2007. At that time she was still having nightmares and flashbacks. She commenced 12 months maternity leave in December 2007.
The plaintiff gave evidence that she felt betrayed by Inspector Sorenson and Sergeant Shields. She had burst into tears when she read the document. At that time she was in the presence of a colleague, Senior Constable Trish De Riviere.
Whilst she was on maternity leave, the plaintiff had decided to return to full time duties and then put in an application for part-time work. She was hoping to be assigned to the Target Action Team, or the District Anti-Theft Team. They were groups that did proactive work, but were not required to respond to attend jobs over the police radio.
Her application was signed off by her team leader. She had a number of applications which were signed by different officers. None of her applications were successful. She then spoke to Inspector Evalton and Sergeant Trench to make representations to Inspector Hill, who queried why she wanted to leave the team.
Following the plaintiff's return to work in 2009, she attended a motor vehicle accident in the early hours of the morning where a vehicle was on its side with two persons inside it. She believed both persons to be deceased, but in the course of moving the vehicle, she saw one of the persons move. Emergency personnel and ambulance arrived and ambulance personnel pronounced the driver to be deceased. The plaintiff was assisting ambulance personnel in treating the passenger by holding a drip. At that time, she saw the driver, who was under a blanket, move, and he was not deceased, but died later in hospital. Following that incident, the plaintiff gave evidence that her nightmares and flashbacks began to increase and became as severe as they had been in 2006. At the same time, namely, in mid-2009, her marriage was under some stress, she had become irritable and agitated again. In addition, her husband, who had been in the police force and had a significant problem in relation to leaving the police force, told her he had a gambling problem. He had not paid taxes in respect of a fencing business which had become insolvent. She consented to become a director of the company. She and her husband received some counselling in respect of his gambling, but she did not raise with the counsellor her mental health problems.
The plaintiff gave evidence that she made numerous appointments to a counselling service called AusPsych, but did not attend. Rather, she spoke to a friend in the police force, Trish De Riviere. She recalled receiving an email from a superior officer, Mr Long, in May 2009, and gave evidence that if he had directed her to go to an EAP counsellor, she would have gone if directed. That email referred to her being involved in five critical incidents whilst working at TLLAC. She understood "critical incidents" to mean traumatic incidents.
The plaintiff gave evidence that in June 2009 she attended premises at San Remo in response to a request for police to check on the welfare of a resident. She and her partner discovered a man hanging in the premises. It was apparent he had been deceased for some time and they called in detectives.
The plaintiff also gave evidence, out of chronological order, that in April 2009 she had attended a fatal motor accident at Wyong Road in which a 17 year old girl was killed. The highway patrol were already at the scene when she arrived, however, the body was still in the vehicle. She was asked by the highway patrol vehicle to keep people away from the scene, but was then asked by Inspector Winmill to drive to the parents' premises to deliver the death message. That task was particularly difficult for her because she had been at the actual scene of the accident. She gave evidence that she asked Inspector Winmill if there was another car crew that could go and deliver the message "because it's traumatic enough going to the actual scene, let alone then driving to the relatives' house and then telling them that one of their loved ones has passed away". She was asked: "Q: You said that to Mr Winmill and what did he say? A: Too bad." Inspector Winmill denied this conversation, see [208] below. The plaintiff was then asked: "Q: You went and did it? A: Yeah. Q: What was it that was particularly difficult about it? A: The, the deceased's brother come to the front door initially and wouldn't allow us to come in until we told him why we were there and it's protocol you don't tell anyone that someone's passed away unless they let you into the premises in the, in - that's what we were taught at the academy. So it took a little bit of persuasion to get him to open the door which was distressing because he knew that something was wrong."
The deceased's mother was at home and the plaintiff informed her that her daughter had passed away and she broke down. The plaintiff then had to wait at the premises until the deceased's father returned from work. When he eventually arrived home, he collapsed when he heard the news and the plaintiff's partner requested an ambulance. The ambulance was then cancelled as they sat the father on the lounge and he was screaming and yelling, which was very upsetting for the plaintiff and her partner.
While at the scene, she received a phone call from Inspector Winmill who told her to return to the station because it was the end of her shift. She told him they were staying until the father returned, as requested by the mother, and he complained about overtime. When she returned to the station, she spoke to him, but gave evidence that he said "he wasn't overly impressed".
The plaintiff gave evidence that on 3 July 2009 she attended a house fire on Hargreaves Street, in which an elderly man died. When she and her partner arrived at the scene, they attempted to kick the front door in to save the man. The fire brigade arrived and began extinguishing the fire, and when they entered, they found a body inside. She was outside the premises near the front door and could see the body which was lying near the door. She was asked: "Q: What did you notice in particular about him? A: Well he was naked and he had - there was a walking frame or similar close by and he had $50 notes stuck to his body."
The plaintiff gave evidence that in the second half of 2009 she was still having nightmares and flashbacks. There were certain things that triggered some of her distressing recollections. When asked to give examples, she gave the following evidence: "A: Cooking barbeques, eating chicken or having chicken, I avoided that, driving around and if there was a dead animal on the side of the road, the smell would normally cause me to go into some sort of a very anxious state. Anything sort of to do with, I guess it was all sort of orientated around, you know, the fires, and things that I'd been into. I avoided cooking, I avoided anything to do with anything like that."
The plaintiff gave evidence that at that time her concentration levels also were not "that great", and she would avoid doing work on her computer. She believed that she was not as efficient as she used to be, or diligent. She was taking sick leave in excess of her entitlements, and was spoken to in relation to that.
In early 2010 she became aware that there was a position available in the Exhibits Office at Wyong, away from general duties. She successfully applied for that position, and in February 2010 commenced work there. She was hoping that it would improve her symptoms and she had also applied for part-time work which involved three 12 hour day shifts per week. That application was granted, and she worked Monday, Tuesday and Wednesday.
Whilst working in the Exhibits Section, a position she job-shared, a number of things occurred that caused the plaintiff stress. On Monday mornings, exhibits were left for her to process. Not all were properly bagged, and some had to be sent off for analysis. On one occasion she came to work and there was a soiled nappy placed in a plastic bag that had come from a child suffocation case. There was also a pillow. Because there was no ventilation in the room, she described it as "horrendous". She complained to her superior officer and detectives attended and took it away.
On another occasion, following a cot death, there was a baby's bottle in a plastic bag which had tipped over, leaving baby's formula on her desk. Whilst picking it up, it went "all over her", and smelt.
On another occasion a vegetable, either a zucchini or cucumber, had been left in a paper bag in the exhibit fridge, following a sexual assault charge. Again, it had gone bad and spoilt the fridge. She complained to Inspector Winmill. After that complaint, a memorandum was forwarded to members of the LAC, and the plaintiff gave evidence that she "felt like I'd basically dobbed in colleagues". Other items which were delivered to her at the Exhibits Office for cataloguing, which had a deleterious effect on her, were a nail gun, where a man had shot himself in the head numerous times in an attempt to commit suicide; tubing from a car gassing, another attempted suicide; and blood‑stained clothing, together with weapons with blood on them. The plaintiff gave evidence that these items had some effect on her, but not the same sort of effect as the nappy or cucumber incidents referred to above.
In March 2010 the plaintiff gave evidence that she moved to a 100 acre property at Ellalong because she wanted to get away from people. She was not coping with living in a suburb as she felt it was too close to people.
On 16 November 2010 the plaintiff was involved in a motor vehicle accident. As she was going around a bend, a vehicle came towards her on the incorrect side of the road, and she had to take evasive action. She veered off the road and went down an embankment and hit a telegraph pole. She was taken to hospital but not admitted, and suffered symptoms in her neck, shoulders, back and shoulder, as well as suffering migraines. She gave evidence that she was off work for three to four months and continued to suffer from those injuries.
A couple of weeks following that motor vehicle accident, the plaintiff gave evidence that she tried to take her own life. She had been drinking, and drove the quad bike to a tree at the rear of the neighbour's property where she was staying, and placed a rope around a branch. She put the rope around her neck and stood up on the back of the quad bike. She stepped off the quad bike, however, the knot gave way. Initially she did not tell anyone about this incident, but eventually told Dr Abery, some months later.
In 2011 the plaintiff applied to transfer to the Central Hunter LAC at Cessnock, which was declined. She then returned to work at Wyong Exhibits Office two days per week. There was no improvement in her psychological condition, and by late May she described it as "fairly bad". The nightmares and flashbacks she suffered had continued and were more regular than they had been six months before. On either 30 May or 1 June 2011, the plaintiff again attempted to hang herself. Again she was unsuccessful and she saw Dr Abery who provided her a certificate, certifying that she was unfit for work. Dr Abery also arranged for an urgent referral to a psychologist, Kevin Wallace in Newcastle, who she saw on a few occasions.
Dr Abery also prescribed anti-depressants and on 3 August 2011 referred the plaintiff to a consultant psychologist, Roger Peters, who is experienced in police matters. He gave her a book on how to deal with symptoms, which she read, and it assisted her. She saw Mr Peters on a few occasions and he then referred her to a psychiatrist, Dr Alexander Murray, who she consulted on 2 September 2011.
The plaintiff gave evidence that she was embarrassed about being classified as "hurt on duty" because she was not coping as a police officer. She had continued under the care of Dr Murray since December 2011. He prescribed for her Prozac and Edronax which assisted her. Over the first three or four months of his treatment, she noticed some improvement. She noticed that she was not agitated or angry, and did not have panic attacks. Further, the flashbacks and nightmares that she suffered were not as severe and they became less regular.
Dr Murray changed her medication at that time, and in late 2012 he prescribed Dexamphetamine. She noticed that her concentration improved and it gave her the energy and motivation that she had lacked. She was also prescribed an anti-depressant, Voldovan. By early 2013, in the morning, she would feel good as a result of her medication. By the afternoon she would start feeling down and her mood would drop. She would then commence to drink heavily. Throughout 2011 and 2012 she had widened her circle of friends.
The plaintiff was examined by Dr Akkerman on behalf of the police service on 28 November 2011. In February 2012 she became aware that her commander at TLLAC wanted her to be considered for medical discharge. When asked how that made her feel, she said: "A: It made me feel relieved but very upset in the same time." When asked to explain that answer, she said: "A: It made me feel relieved because I knew I couldn't go back to being a police officer, but sad because of the effort I'd gone to get into the police force and how much I enjoyed it."
The plaintiff gave evidence that in March 2012 she separated from her second husband. She was medically discharged from the police service on 7 June 2012. She then consulted her then solicitor, who referred her to Dr Mason, consultant psychiatrist, whom she saw on 22 February 2013. Her solicitor discussed with her making a claim for a lump sum benefit for whole person impairment, which she referred to as "a section 66 claim". She instructed them to make that claim and was then sent to be examined by Dr Christopher Bench in September 2013, on behalf of the insurance company.
In September 2013, she consulted her present solicitor, Mr Grey. The initial consultation was in regard to a claim on a superannuation policy she had with Metlife. She then asked Mr Grey to take over her s 66 claim from her previous solicitor, and that occurred in March 2014. In the same year, she got back together with her second husband, but separated after seven months. He moved into a caravan on the property, and the plaintiff had to report to liquidators of his company. In March 2014, he had threatened to kill her, and was arrested.
The plaintiff gave evidence that she would see Dr Murray for treatment whenever her symptoms started to become more severe. When asked what she meant by the word "severe", she said: "A: I thought about suicide again." Otherwise her mood was good. Her dreams had become less intrusive, although she still had what she described as "burning nightmares" and other nightmares involving her children.
The plaintiff's s 66 claim was resolved in May 2014, following which, she received advice from her solicitor about a claim in negligence in June 2014. She gave evidence that her former solicitor had never discussed with her a claim in negligence against the police service, and Mr Grey's advice in relation to that was the first that she had heard of the idea of suing for negligence.
In October 2014 she was referred by Dr Murray to a psychologist named Melinda Richards-Horder, however, she did not attend because she did not want to go through every job she had attended and relive it all again. In June 2015 she was examined by Dr Diamond, psychiatrist, at her solicitor's request. She was also examined by Dr Vickery at the request of the insurance company.
The plaintiff gave evidence that having taken her meds, she would normally work outside on the property during the morning. In the afternoon, if she did not go out, she would normally sit and have a few drinks. She felt she had no motivation and no drive.
Dr Murray had tried to alter her medication so that she could take some at lunch time, however, it had affected her blood pressure and sleep. She had been referred to a cardiologist as a result of high blood pressure from two of the medications. She gave evidence that she still got anxious and uptight, but could not increase her present medication
The plaintiff gave evidence that she had sworn an affidavit concerning her application to extend time for bringing the proceedings. There was no objection to that affidavit.
The plaintiff gave further evidence that, since 2012, her mother had been living with her. She had rendered some assistance in terms of daily activities, including collecting her mail and paying bills for her. She had also been sent to two rehabilitation providers, neither of whom had arranged any sort of work trial for her.

[5]

Cross-examination of the plaintiff

The plaintiff was cross-examined at length. She had no recollection of undergoing a course on stress management and employee support in the workplace on 8 October 2003, when she was at the TLLAC. In relation to the incidents outlined in [11] of the plaintiff's Further Amended Statement of Claim, about which she had given evidence, the plaintiff agreed that each caused her terrible distress and the majority were deeply disturbing, however, between 2002 and 2004, she did not seek any medical attention at all. She was, however, having flashbacks and nightmares during that period relating to the suicides she attended, and in particular, a suicide at Toukley.
The plaintiff said her sleep was disturbed, which meant that she would wake up having a dream or nightmare about one of the jobs she had attended. She first attended the EAP after the incident at Doyalson on 26 July 2004.
The plaintiff gave evidence that she commenced seeing Dr Abery in May 2005. Dr Abery was the first doctor to prescribe her an anti-depressant. She did not tell anyone at the police as at May 2005 that for the very first time in her life she had been prescribed medication for her mental health. The plaintiff gave evidence that she did not see a need to inform the police of that fact.
The plaintiff agreed that in Dr Abery's clinical notes at that time there was no note of her suffering from flashbacks or nightmares, however, in relation to a notation "not sleeping at all', the plaintiff said that she was sleeping, but she was having difficulty sleeping. She did not tell Dr Abery that she was having nightmares and flashbacks as she thought it was all part of being a police officer.
The plaintiff had told Dr Abery that she was having mini anxiety attacks, felt as if she had knots in her stomach and was crying all the time. She put that down to the breakup she had experienced with a police officer she was seeing at the time. She had never had those symptoms before in her life and was concerned, but not extremely worried about them. She described the mini anxiety attacks as her experiencing heart palpitations and feeling anxious.
The plaintiff understood that the anti-depressant medication prescribed for her in May 2005, namely, Zoloft and Talohexal, was to help her with her mood. She did not speak to anyone at the police about her mental state between 2002 an 2005, except for one occasion when she went to EAP and saw a counsellor. When asked why not, she answered: "A: Because it's not in the culture to discuss your mental health with other police officers. You get laughed at and spoken about." She was asked as follows: "Q: Was that the position all the way through until you put in your incident notification form in August of 2006? A: It was always frowned upon within the police to speak up about if you were struggling so, yes. Q: You're saying it was frowned upon in the police, what do you mean by that? A: I would often hear other officers making fun of people that have gone off on stress leave, or - they were basically just made fun of by saying they were what's called booey or mad or a head case."
The plaintiff agreed that she could have seen an EAP counsellor in 2005, but did not. She agreed that in August 2005 she had expressed interest in street level undercover work as a police woman. She underwent psychometric testing to undertake that type of work, but did not disclose taking anti-depressant medication on her assessment form. When asked why, she said: "A: I may not have been on it at that time."
The plaintiff gave evidence that she met her second husband, Mr Sills, in November 2005. She agreed that she was feeling much better in early 2006. Whilst doing undercover work, the first thing that happened when she returned to the station was she was given a questionnaire to fill out.
The plaintiff gave evidence that she was aware of the EAP program between 2003 to 2006 because she had been handed a brochure. She was not aware of peer support officers during that period, nor did she ever feel like she could access the police chaplains to talk about anything. She was not exactly aware of their role. The plaintiff regarded a critical incident to mean, a "highly stressful, traumatic incident" like a fire or a motor vehicle accident involving a fatality.
The plaintiff disagreed with the proposition that from 2003 until the time she left the police force in 2011, that she was well aware there was an ongoing list of peer support officers who she could talk to at any time, if she had an issue.
The plaintiff gave evidence that she applied for annual leave before her wedding to Mr Sills on 9 September 2006. That leave was to begin on 8 September and she returned on 24 or 25 September.
The plaintiff was asked about the incident when she had a panic attack on the way to work, which she reported to Sergeant Trench. She said she was suffering physical symptoms involving panicking, anxiety and having trouble breathing. She agreed that in August 2006 she had a hen's night and she agreed that it was a great night. She did not agree that there was a great deal of preparation that she had to undertake before her wedding.
The plaintiff did agree that when she spoke to Sergeant Trench, he was very caring and understanding of her situation. She agreed that he did not say anything to make her feel in any way bad or weak because she had come forward.
The plaintiff agreed that on 18 August 2006 Dr Abery referred her to a private psychologist, Cheryl Roberts. Following her incident notification form dated 17 August 2006, her employer referred her to a case officer. As at August 2006, the plaintiff had not told any superior officer about her problems because she felt it would be shameful to do so or weak. Except for one occasion, she had never had a discussion with her duty officer about the effect of attending critical incidents had on her.
The plaintiff could only remember having a discussion with the team leader following a critical incident on 26 July 2004. On that occasion she was spoken to by Inspector Tim Winmill, who asked each of the police attending "Are we okay?". Everyone present said "Yes" and they left. The plaintiff disagreed that a debriefing took place on numerous occasions, and she also disagreed with the proposition that the debriefing was not as short as she had put it. She described the debriefing process as follows: "A: There would be small talk about the actual event and, as sick as it sounds, some police officer would make a joke and lighten it, and then we would leave." Q: After each and every one of these critical incidents you've identified, from 2002 through to 7 July 2006, it was the case, wasn't it, that whether it was a duty officer, a team leader, or someone more superior to you, somebody would come and have a discussion with you to see if you are feeling alright? Do you agree or not? A: No. Q: On each and every one of those occasions from 2002 through to 2006, it was the case, wasn't it, that someone superior to you, be it a duty officer or a team leader, would come and have a discussion with you about the Employees Assistance Program, and that it was there for your assistance? A: No. Q: Lists of peer support officers would be supplied to you? A: No. Q: If there was any issue regarding you having any trauma, you were required to fill out an incident notification form? A: No.
The plaintiff agreed that she was placed on restricted duties when she returned from her honeymoon in September 2006. Those restricted duties were counter enquiries. She also did administration work at The Entrance which involved paperwork and filing. She agreed that she was not happy being on restricted duties and wanted to get back to general duties.
The plaintiff was referred to the PMO, Dr Kirychenko, on 9 October 2006. The plaintiff had no recollection of seeing Dr Kirychenko. It was put to her that she had told Dr Kirychenko that she was now well and had no more dreams. She gave evidence that she wanted to get back to work at that stage so that she "may have just played it down". She was asked: "Q: Why would play such a serious issue as your psychological health down? A: Because I wanted to get my appointments back. Q: I want to suggest to you that when you saw Dr Kirychenko you knew you had to tell him the truth, and when it came to whether or not you were still having bad dreams, you told him the truth? A: No. Q: So was this the case, you went to Dr Kirychenko and you were still having nightmares and flashbacks? A: Possibly. Q: Graphic ones? A: Possibly. Q: Do you accept that if the police receive this report when it says that you were not having any more dreams, there was no other way except for your superiors to know that you hadn't told the truth to Dr Kirychenko, correct? A: No."
The plaintiff gave evidence that she did not really remember seeing a police psychologist, Ms Cimino. She did recall that she was referred to a mental health practitioner before being put back on general duties and that her functioning had improved since going on leave. She agreed that Ms Cimino had recorded that she had told her that her dreams had ceased and her mood had improved. Further, she had recorded "no disturbance in sleep". The plaintiff's explanation for those entries was that she wanted to get her appointments back and get away from filing, however, she did not want to return to general duties.
The plaintiff agreed that if she had told Ms Cimino that her sleep was no longer disturbed, that would have been false. She said that her concentration and sleep were still disturbed when she saw Ms Cimino on 9 October 2006, however, she wanted her appointments back, including her service revolver. At that time her drinking was under control and she had no thoughts of self‑harm or suicidal tendencies. She did not, however, believe that she could cope with general duties work at that time. The plaintiff gave evidence that there was no discussion with Dr Kirychenko, nor Ms Cimino, about a way forward, in terms of how she would approach her work and what signs to watch out for if her condition would deteriorate. She did not receive a copy of Ms Cimino's report, nor did anyone explain to her that report or that of Dr Kirychenko.
The plaintiff gave evidence that after the Doyalson fire incident, Superintendent Mitchell had rung her advising her to go to the EAP, which she did. She did not recall any conversation with him after she had been, and did not recall him instructing her to go back. Notwithstanding that, Dr Wayne Mason, who she saw in February 2013, had recorded, "She said her superintendent telephoned her and told her she had to go back, but again she refused" (meaning back to EAP). She denied that that conversation took place, and denied that any superior officer had told her she must go back to the EAP. She agreed that she would not have gone back to the EAP because she was dissatisfied with that service.
In respect to her appointment with Dr Kirychenko, the plaintiff agreed that she had told him certain things because she wanted her appointments back. She was asked: "Q: Is it the case that as at the time you saw Dr Kirychenko, if it had been offered to you to be medically retired out of the police force, you would have said no? A: Yes." It was further put to her: "Q: If Dr Kirychenko had said to you it's in your best interest for you to regularly see a psychiatrist at the expense of the police and for reports to be sent back to the police to monitor your psychiatric well-being, I take it you also would have said no to that? A: Not necessarily. Q: Just so its abundantly clear, that would have been the case too, I take it, as at the time you saw Dr Kirychenko in terms of having to see a police psychologist or a psychologist on a regular basis, with the reports going back to the command? A: If the command had have organised it or directed me to do it, I probably would have done it, but not on my own. Q: If they said to you it was a matter entirely up to you, you would have said it was unnecessary? A: I wouldn't have probably gone."
The plaintiff denied that Mr Briggs had introduced himself to her as a psychologist. He said he was from the insurance company. She had disagreed with what he ultimately concluded and made a claim for workers compensation for a closed period.
In respect of the meal room incident where she overheard Sergeant Greene the plaintiff could not remember the exact words used, however, she had overheard Sergeant Greene talking to Senior Constable McGurren. She believed that Sergeant Greene was discussing personal particulars about an officer that was inappropriate, and her belief was that it was a breach of confidentiality. She did not report this incident to any superior officer. When asked whether overhearing that conversation made her very upset, she said: "A: I just lost all trust in speaking to anyone." She was asked: "Q: Why didn't you complain to someone on a private and confidential basis? A: Because you would outcast in the police if you complained about another police officer in such a manner."
She disagreed that she could have made a complaint on a private and confidential basis with her name not to be disclosed. Nor did she confront Sergeant Greene with what she had heard as she was a superior officer and it would have been disrespectful. Nor did she attempt to find another peer support officer to assist her with her emotional problems.
The plaintiff gave evidence that she never held a meeting with a duty officer at the end of a shift, nor was she ever encouraged to come forward at the end of a shift if there was a critical incident which she attended and was distressed about it.
It was put to the plaintiff that following an incident in February 2007 when a man had been caught under a piece of industrial machinery, such as a steamroller, she was approached by a superior officer, Mr Winmill, and directed to go to a debriefing and to the EAP. She disagreed with both propositions. She was shown a critical incident form dated 2 February 2007, however, she did not remember attending a debriefing on that day. She denied that whenever there was a critical incident involving serious matters such as death, fires involving death, and the kinds of matters that she referred to in her FASOC, that she would be sent to a debriefing session. The TLLAC Critical Welfare Incident Debrief became Ex 2.
It was put to the plaintiff that she was never instructed by Mr Winmill to deliver the death message that she referred to in her evidence in chief. She was not aware that he was a person that was actively involved in debriefing and said that she was forced to deliver the death message. Further, it was put to the plaintiff that the debriefings did not occur in the way in which she had described in her evidence in chief. She denied that. She could only recall attending one debriefing, which took place in 2004 after the house fire in which a three year old child perished.
The plaintiff denied attending a debriefing on 1 April 2009, after attending a fatal motor vehicle accident involving a 17 year old girl. When a memorandum was put to her, she had no recollection of receiving it. She denied that if she had received the memorandum she would have gone to the EAP, a counsellor, a psychologist, a psychiatrist, or to peer support. Her understanding of the memorandum was that its purpose was for the "bosses to cover their own arse".
The plaintiff agreed that in 2007 she was counselled for taking too much sick leave. When asked why, she said: "A: Because I didn't want to go to work because I didn't want to get worse in my symptoms." Those symptoms were nightmares and reliving the jobs that she had been to. When asked why she had not reported her symptoms to her superior officer, she said: "A: As I said, you don't speak about things like that within the police force, you get frowned upon, and people talk about you, and it's not in the culture to do so."
At the time she saw Dr Gertler, the plaintiff agreed that her overall level of anxiety had decreased. She had attributed that to being on restricted duties and her nightmares had become less frequent. She acknowledged that after she married her second husband, she found out that he had a gambling problem. He had not paid taxes and had his bank accounts garnisheed. She was shocked, but not very distressed. She was informed that her husband's company was to go into liquidation, however, it was not going to impact on her.
A new company was formed and she became a director of it. Before she did so, the plaintiff gave evidence that she informed her husband that she would be a director as long as her sister, who was doing bookkeeping for him and was in charge of the business banking side of the business, was involved. She was not aware of whether he had declared bankruptcy. During 2012, the plaintiff discovered that the company had outstanding debts, and that her ex‑husband and her sister had borrowed money from her mother to purchase fencing materials. In 2012 she learnt that her sister had not been truthful to her about what was being done with the company's money. When she learnt that the company would go into liquidation, the plaintiff agreed that it caused her stress. A total of $180,000 had been borrowed from her mother and the full amount had not been paid back. The plaintiff gave evidence that that had not caused problems so far as her relationship with her mother was concerned, because her mother knew that she was not responsible for the loans. However, she no longer spoke to her sister.
The plaintiff was asked about a course she attended on 14 April 2009 on mental health. She believed it was done online. At that time she applied for a transfer out of general duties to the Target Action Group ("TAG"). She also applied for a transfer to liquor licencing and anti-theft squads. Her application was to be determined by Chief Inspector Julie Hill, who the plaintiff believed had a bias against appointing women police officers. It was put to her that her evidence in respect of Inspector Hill was made up, which she denied. The plaintiff was asked why she did not make a complaint anonymously that she was being discriminated against because she was a woman, and her answer was: "A: You can't make a complaint in the police anonymously. Q: That's nonsense. You know that don't you? A: No, it isn't, unfortunately. Q: If your applications for TAG would have been accepted, you would have stayed on in the police, is that right? A: More than likely, yes. Q: You'd be there now? A: Possibly. Q: You never sought any review of these decisions that you say were made adversely to you by Chief Inspector Hill? A: They weren't adversely to me, it was just to females in general."
The plaintiff gave evidence that she remembered submitting four applications for transfer and on each occasion was recommended by her superior officer. She believed that Chief Inspector Hill had a bias against her because she was a woman.
On 11 May 2009, the plaintiff gave evidence that she did not recall a debriefing taking place after a critical incident in which a man had committed suicide. She gave evidence that she felt upset following the incident. The incident form became Ex 3. Exhibit 4 comprised two documents concerning a critical incident on 2 April 2009 in which a 17 year old girl died in a motor vehicle accident. She had not sought any help, counselling or otherwise, following the receipt of that memorandum.
In respect of the memorandum dated 22 May 2009, the plaintiff was asked why she was critical of it. She answered: "A: I believe its impersonal and irresponsible of the command just to send out a copy and pasted email to officers who are going from job to job, and yes, they're involved in lots of critical incidences and then have to come back to the station to do paperwork, read this, it's insulting.' Q: What way do you say they should have approached this situation involving you going to a cluster of critical incidents and any response the command ought to have provided? A: First of all, it should be a matter of you being able to trust your superiors in relation to - being able to approach them and tell them that you might need help. Within the police force, there isn't a great deal of trust, because if you tell someone something, then during my time in the police force, it's been known not to be confidential.'
She nominated, in addition to Sergeant Greene, Inspector Sorenson and Trevor Shiels as officers who had betrayed her confidence and who she would not trust.
The plaintiff was not aware that prior to 2009 a database had been created at the LAC which recorded officers who had attended critical incidents. She had spoken to a friend, Trish De Riviere, who was a Detective Senior Constable, but not a peer support officer, about symptoms she was having. She described those symptoms as flashbacks and nightmares that were still continuing. At the end of 2009, she went on a cruise and was feeling better.
It was put to the plaintiff that by 1 July 2010, she was still actively involved in her police work in general duties and did not have any problems. She agreed with that, and also that she wanted to increase her hours by 5 July 2010. By that stage she was in the Exhibits Office. She agreed that her work was well regarded. The plaintiff was questioned about her work in the Exhibits Office and the procedures used there.
On 16 November 2010 she suffered significant physical injury in a motor vehicle accident and was off work for a significant period of time, approximately 41 weeks. She was paid workers compensation for that period. She returned to restricted duties in the Exhibits Office.
The plaintiff agreed that up until the time she left work in 2011, if she had been offered medical retirement she would have refused it. Between 2006 and 2011, if she had been told by police that they wanted her to be regularly monitored by a psychiatrist, the plaintiff gave evidence that she would have agreed. She was asked: "Q: If they directed you to do so, with reports going back to the command, would you have agreed to that direction? A: If I was directed, yes."
She agreed that during that period she was seeing Dr Abery, and was able to get her own psychiatric help. When asked whether she could do any work now, the plaintiff said "No". When asked: "Q: Why not? A: Because I have no ability, I don't believe, at the present state."
The plaintiff gave evidence that she enjoyed gardening and could possibly work at a nursery, depending on what day of the week it is. She had never attempted drug and alcohol counselling.
In respect of the plaintiff's attempts at suicide, it was put to her that there was a combination of factors which made her upset, which he denied. She agreed that her husband's gambling had sometimes made her upset, but not financial problems. She had not attempted part-time work, or work in the mornings. When asked why she could not work in a clerical position, or a part-time clerical position, the plaintiff answered: "A: I have issues with concentration and avoidance issues with anything really to do with paperwork. As I have said before, my mum would go through all my mail and pay a lot of my bills for me, so I don't think I could sit and do an admin role. Q: You say there's absolutely no job you could do? A: I'm not saying there's no job I could do, I'm just unaware of one that would want to employ someone like me."
The plaintiff agreed that she had a Facebook account on which she had from time to time posted images to do with her work with the police. She was asked: "Q: Doesn't that cause you any problems? A: No, I'm quite proud of what I've done." She then gave evidence that she was able to go to social functions but had to be intoxicated to do so.
In re-examination, the plaintiff was asked: "Q: When you returned to work in 2006, having had time off work and having seen the police medical officer, were you told by any of your superior officers what the police medical officer's recommendations in relation to the conditions upon which you should return to work were? A: No." She gave further evidence that at no time did any senior officer approach her, following her return to work, to explore how she was feeling at that time. Even after attending five or more critical incidents, no senior officer approached her to ask her how she was dealing with it.
The plaintiff gave evidence that she was still in receipt of workers compensation payments. She was asked: "Q: What is it that leads you to conclude that you have no ability to work? A: Firstly because of the medication I'm on, it depends on - as I've said, I don't think anyone would employ me to work a couple of hours a day. And as I said before, I have no concentration, I avoid taking my kids to appointments, so I don't know how I would go turning up for work. That's why I don't think I've got the ability to actually go to work."
Following her return to work, the plaintiff gave evidence that she continued to have anti-depressants prescribed for her, for which she paid.

[6]

Evidence of Ms Joan Raper

Ms Raper attended the Police Academy with the plaintiff and was attested around the same time, and commenced at TLLAC in about May 2003, where she remained until 2008. She then transferred to Mt Druitt and the balance of her service was spent away from TLLAC. While she was there, however, she was not in the same team as the plaintiff. She regarded herself as a work colleague of the plaintiff, but did not socialise with her out of work. During her police training, she gave evidence that a number of subjects were studied.
Ms Raper gave evidence that she attended a number of traumatic incidents. She was asked about the system in place at TLLAC, and whether when they returned to the station, did she have to make a report about the incident. She gave the following evidence: "A: Not a report, no. We would - we - other colleagues and myself would come back to the station, generally have to finish or prepare statements and a duty officer or Sergeant on duty would basically just, through standard operating procedure, just provide information about an EAP if we needed to go and see one and that was pretty much it."
She was never required to attend at EAP, but she did attend on two occasions. On each occasion she went to Gosford and spoke to a psychologist towards the end of 2005 and the start of 2006. She had attended three incidents that occurred pretty close together. She gave the following evidence: "Q: The first time you saw someone at EAP, how long were you with them? A: Five minutes. Q: Did you find that useful or? A: Useless, completely useless. Q: Why did you go back the second time? A: We were - it was made - we were made to feel like we needed to before we could actually go back to work to perform out duties. Q: What was your experience on the second occasion? A: Worse than the first. Q: How was it worse? A: Because the psychologist told me that the best course of stress relief for me would be to go home and have sex with my husband, so I called him an idiot and I left. Q: How long were you with him on that occasion? A: As long as it took him to say that, five minutes."
Ms Raper was shown a standard operating procedure document and asked whether, having attended EAP, was there ever a follow-up check after one week. She answered "No". She was then asked whether there was a follow‑up again three to four weeks after the incident, and she said that never happened.
Ms Raper gave the following evidence: "Q: After you went to EAP the second time, and you've told us how you found that, did you make any other complaints after that, concerning your emotional state? A: No. Q: Why not? A: It was very much the culture of keeping that to yourself, you didn't air that stuff, because you were perceived as weak, especially being female."
The standard operating procedures documents were admitted as Ex E and Ex F.
In cross-examination, Ms Raper gave evidence that she was not directed by a memorandum to go the EAP. Information was given by a sergeant or duty officer at the time of a particular incident. After the first EAP session, which she gave evidence about, she was asked as follows: "Q: Did you go back to the command and complain to anyone that the EAP consultation you had was useless? A: Yes Q: Who did you complain to? A: It wasn't a - an official complaint, it was just to my - and I can't remember again if it was my team leader or the duty officer, about that experience, it wasn't an official complaint. Q: Did you make an unofficial complaint to someone that you can recall? A: That's when I spoke to the team leader or - the sergeant or the duty officer, and I can't remember which one, about what happened. Q: What year are we talking about? A: 2007, 2008."
The witness gave evidence that she found that the comment made by the psychologist on the second occasion she went for EAP counselling very offensive and absolutely absurd. She was asked: "Q: Did you go and tell anyone at TLLAC or anyone in the police force about that incident? A: Yes I did. Q: Who? A: Again, it would have been the team leader or duty officer at the time, and I do recall writing it somewhere - it was written, but I can't remember the specifics."
When asked whether when she worked at TLLAC there were debriefings, she said that there were conversations that were not a formal debrief. Those conversations were not of assistance to her. Generally, the debrief concerned police involved sitting around completing their task, including statements, after the event of an incident. The Chaplain was present on only one occasion. There was never anyone from the police psychology unit present.
Ms Raper recalled posters on the wall of the staffroom at the police station stating the words, "peer support". She did not approach any of the peer support officers about her concerns regarding EAP. She eventually sought her own independent help regarding her involvement in traumatic incidents.
Ms Raper gave evidence that she never received any memorandum following her involvement in a critical incident, identifying that she had been involved in such an incident. Nor did she receive any email to that effect. She was asked what she had been taught at the Police Academy regarding trauma in police work. She answered: "A: It was more information about what you're likely to be exposed to. They did talk about supports that would be in place. Again, I don't remember the specifics."
It was put to Ms Raper that Chaplains would come to the police station where she was working on a regular basis. She disagreed, saying that they came on a very occasional basis. She had been medically discharged in July 2010 from the New South Wales Police Service due a psychiatric illness, being PTSD.
When she worked at TLLAC, she denied having to speak with the duty officer at the end of each shift for the purposes of a handover. Nor was she aware of any system in place to record the names of officers who had been to critical incidents.
On each occasion she attended EAP, it followed a critical incident where it was suggested to her that she go because she had been involved in two incidents close together. The team leader had made the suggestion. She gave evidence that she had no discussions with the team leader about welfare.
Ms Raper conceded that she knew from her training that the EAP services were always available, the Chaplaincy service was always available, and the peer support officers were always available if she needed them. She agreed saying: "A: Yes, again, information was provided to all staff"

[7]

Evidence of Ms Patricia De Riviere

Ms De Riviere was a police officer between 21 December 1999 and 21 August 2011. In 2003, she was attached to the Joint Investigation Response Team ("JIRT"). Between 2003 and 2009 she was required to take compulsory rotation out of JIRT to other duties, and in 2006 she went to TLLAC to general duties. At that time she met the plaintiff. They worked in the same team, however, Ms De Riviere was a field training officer, so they did not work side‑by‑side. They did attend jobs together, however, and became friendly as work colleagues. She gave the following evidence: "Q: Did the plaintiff ever tell you anything about how she was feeling? A: Almost every, every contact that we had, yes. Q: What sort of things did you talk about with the plaintiff? A: We talked about chain of command, how poorly we were treated. I mean we both vented to each other. We - yeah, we talked about jobs that we attended. Melanie talked about being angry and - I mean, when she did talk to me physically, it was over the - it was over the phone or face‑to‑face. When it was face-to-face or over the phone, she would be, I could hear her crying, or I could see her crying."
Ms De Riviere gave evidence that on one occasion the plaintiff had received something in her pigeon hole in the muster room, and showed her the piece of paper with blackouts throughout the document. They had a conversation about the document and she observed the plaintiff to be upset, and she was crying. The document was a report from a practitioner and one of the names that had been redacted was that of Kim Sorenson. She identified Ex C as being a copy of the document.
In 2009, Ms De Riviere secured a permanent position in general duties at TLLAC. She spoke to the plaintiff thereafter a couple of times a week and they were close friends. She was not in the same team as the plaintiff following her return in 2009, however, following a period of three weeks sick leave, she was given restricted duties in the Exhibits Section. Ms De Riviere had suffered PTSD and she was asked how she found doing duties in the Exhibits Section. She described them as "very confronting" and was asked: "Q: Why is that? A: I encountered exhibits, the very exhibits I was having - these incidents that I was having nightmares about, there were you know, items that were bloodied or - yeah, just - it was, it was confronting, it was causing myself - I was causing myself - it was causing grief, because these - my name were on these exhibits and yeah, that's - yeah. Q: What can you tell us about the handling of exhibits in terms of how they were packaged? A: Well some of them were packaged poorly by other officers, but depending on the size of the exhibit, whether it was bagged, in a clear bag or a paper bag, yeah, it was, it was a variation of things. Sometimes only a knife would be just placed in the exhibit room without any - without it being secured."
The witness remained in the Exhibits Section from April 2009 until December 2009 when she was transferred to the domestic violence unit within TLLAC.
She gave evidence that in May 2009 she was shown emails by the plaintiff, and in particular, an email from Mr Long, an Acting Commander, about counselling and critical incidents. The plaintiff spoke to her about the email and showed it to her. It concerned the plaintiff attending five critical incidents. She gave evidence that the plaintiff was angry about receiving it, and she was too. When asked why, she answered: "A: Only because it's not a person that I would approach." meaning the Acting Commander. The plaintiff told her that she would not approach Mr Long or anyone in the chain of command because they were not to be trusted. Nobody cared about confidentiality. The witness was asked as follows: "Q: Whilst you were at Tuggerah in general duties, what can you tell us about the system, if any, of going to traumatic incidents? Was there any welfare system in place that you can tell us about? A: I didn't experience anything myself. Q: Were you approached by a duty officer at any stage? A: Not at all. Q: Were there enquiries as to your welfare? A: Just one email from Inspector Long."
The witness gave evidence that she remained in contact with the plaintiff throughout 2010. Whilst the plaintiff was working in the Exhibits Section, she had conversations with the witness about exhibits she encountered from jobs that she had attended. They included a bloodied t-shirt and soiled nappies.
In cross-examination, Ms De Riviere gave evidence that she first felt symptoms of emotionally not feeling well in 2008. She understood that the basis of her being unwell was due to exposure to trauma at work. She reported that to her team leader, Sergeant Rachel Morrison, and was given advice to transfer out of the JIRT section. She was not given any reasons as to why it would be best for her to transfer out, nor did she consult the EAP program. She did, however, have private therapy from a psychologist. When she transferred to the TLLAC, she did not have to tell the people there that she was suffering from emotional problems. She first worked in 2009 at Toukley police station and did not recall any posters there about peer support officers. Nor were there Chaplains there. She understood that there was a chaplaincy service, and an employee assistance program.
As a field training officer, she would take probationary constables out on general duties and advise them that if they were traumatised, they could seek services that were available. However, she said she would not have recommended EAP to anybody.
Ms De Riviere was asked about an incident involving the plaintiff and Sergeant Greene where the plaintiff had overheard Sergeant Greene talking to other police officers about the plaintiff. She had been friendly with the plaintiff since 2006, and was aware of personal problems in her life outside the police force, including that her husband was a gambler. She also was able to observe that the plaintiff was upset about her husband's business going into liquidation and that her sister had been involved in some sort of fraudulent activity within the business.
She also gave evidence that she had socialised frequently with the plaintiff and that they had travelled to Bali together on two occasions. For the most part she had observed the plaintiff to be a reasonably happy person, but there were times when she would be upset about things. The plaintiff had confided in her about her matrimonial breakdown in 2012.
The witness was questioned at some length about the procedures in the Exhibits Section that were designed to preserve the integrity of evidence kept there. She herself had made complaints about the manner in which exhibits had been left there, for example, a knife that had not been properly secured. She did not tell anyone at the command that she felt emotionally upset because of the exhibits that she was handling. When asked why, she answered: "A: I don't know who I would tell, I didn't trust anyone in the - in the hierarchy. Q: You didn't trust anyone in the hierarchy, why not? A: Because nothing was treated confidentially. Q: Have you ever met Mr Long? A: Yes. Q: Do you say you couldn't trust him? A: Nope. Q: Why not? A: Because he - he never looked at me in my - in my face when I talked to him, he would look at my breasts. Q: Did you believe that Chief Inspector Long was leering at you? A: He did it to everybody, other - other females, not just myself. Q: Did Ms Sills ever tell you that she had such an encounter with Mr Long? A: Yes, we talked about it."
Ms De Riviere gave evidence that she never attended any debriefing sessions at the TLLAC. She had received some kind of memorandum recommending the EAP, after she had attended a critical incident.
She had continued to see Ms Sills on a regular basis after she left the police force, however, she had not seen her since October 2016. On occasions when they did go out, they drank heavily together. She was aware that the plaintiff had suffered injuries in a car accident in 2010. She was also told by the plaintiff that, at one particular time, she formed the urge to take her own life. She gave this evidence: "Q: Did she tell you the reason why she did that? A: She'd had enough and that no - nobody was believing her. Q: Believing her about what? A: Things that were happening to her. The nightmares that she was having, the things she was going through. Yeah. Q: Did she tell you her second attempt that she made, or just the one? A: Just the one."
In re-examination, Ms De Riviere was asked why she did not tell anyone that she had been experiencing emotional problems while she was in JIRT when she transferred to TLLAC. She gave this answer: "A: Because I didn't think that I could gain a permanent transfer if another LAC knew I was going through some - you know I didn't know I had PTSD back then, but that I was going through all of this. I didn't think - I just didn't want to be looked upon as not being able to cope, I suppose, in doing my, my duty. So it was - I didn't disclose that in my application to transfer."
The witness was also asked why she gave evidence that she would not advise probationary constables to use the EAP services, and she answered: "A: Cause I've used them and they were, they weren't effective."

[8]

Evidence of Chief Inspector Kim Sorenson

Mr Sorenson joined the New South Wales Police in 1986 and was promoted to Chief Inspector at TLLAC in 2003. He gave evidence that at that time there was a pattern of police officers succumbing to PTSD and he, together with a police psychologist, devised a system for the purpose of early intervention prior to PTSD setting in. That system comprised a spread sheet, together with treatment actions to identify police officers who had attended a number of traumatic incidents over a two year period. The data was derived from a form submitted by the police officers' supervisors, following police officers attending a traumatic incident. The supervisors were given training, however, if they failed to fill in the form, Chief Inspector Sorenson gave evidence that the duty officer would ensure that the attending police officers' names were placed on the register.
In addition to that register, there were injury management meetings held, although Chief Inspector Sorenson was not a regular attendee at those. He also gave evidence that posters were placed within the police stations advertising the EAP. In addition, posters also listed the peer support officers.
Chief Inspector Sorenson gave evidence that in 2006 he knew the plaintiff and she had never made any complaints to him about emotional problems she was having with her police work. He was aware she made a claim for workers compensation in August 2006, and he provided a statement to the investigator, Mr Briggs. In his statement he said that he was suspicious of her claim, but he never said or did anything regarding that opinion to the plaintiff. He saw her on a regular basis at the police station and described her demeanour as being "a bubbly, happy personality, a lovely girl to have around actually".
Chief Inspector Sorenson was asked about the accumulative effect of traumatic incidents being placed on the register, and he was asked: "Q: Would the officer come into contact with someone such as yourself about that?A: Yes, the immediate supervisors would - would normally make observations of the - the officer. In the past, not necessarily with this officer, but I've certainly had contact with people as a result of the numbers accumulated on the spreadsheet, and basically checking that they were okay, and - and making a notation on the spreadsheet to the effect that I had had a conversation with them, so there was a record there. However, that record of course would - would fall off after two years, because that was the - the whole way that the spreadsheet operated, was to have this two year cumulative effect, because otherwise it would just fill up, and it'd be - there would be no point in the colour schemes that were there."
Chief Inspector Sorenson gave evidence as to what occurred at the end of each shift within the TLLAC. A shift report was compiled by the supervisors and the duty officers would do a handover. Part of the shift report concerned "welfare issues". He gave this evidence: "Q: Could you tell the court about that? A: Well that was if anything had happened during the shift where an officer had been involved in something out of the ordinary that could impact on their psychological, physical welfare. We would - we would put it in this report so it was translated to all the other senior management members, and - and we would then keep an eye on the officer, and make sure that - that they were travelling okay. And that particular thing, there would also be one of those place from where the initial sheet I spoke of, the manual form used to populate the spreadsheet, this would be one of the areas where we'd pick up whether or not one of those had been submitted."
The shift report became Ex 5.
Chief Inspector Sorenson left the TLLAC in 2006.
In cross-examination, Chief Inspector Sorenson gave evidence that at the time he prepared his statement for Mr Briggs on 10 October 2006, the plaintiff had returned to work and he was aware that she had been referred to the PMO. He did not have the PMO's report, which was dated 9 October 2006, when he prepared his statement. He knew he was making that statement for the purposes of the plaintiff's workers compensation claim. He was suspicious of her claim because she had later told him on 5 October 2006 that she was not really sick but just wanted the time off. He did not see that as a cry for help and did not ask her anything more about it. A sergeant was present when the plaintiff said that to him; he did not know now who the sergeant was.
Chief Inspector Sorenson agreed that the plaintiff was an exemplary police officer and in the early part of her career he was very impressed with her. He was asked: "Q: When did that stop? A: She - towards the end of my being there, when she - it was a gradual slide, so it's hard to sort of put an actual time on it, but her sick leave became a bit of a concern. Q: Excessive sick leave could be indicative of somebody who is struggling with a mental problem, couldn't it? A: Well it could be yes."
Chief Inspector Sorenson had received from the PMO the all clear for the plaintiff to have her firearm back, prior to writing his statement.
Chief Inspector Sorenson gave evidence that he did not know about the report of Dr Kirychenko dated 9 October 2006, and his recommendation that as she will be exposed to further traumatic cases, a course of psychological counselling would be appropriate to teach her strategies to deal with her past and future traumatic events. Had he known about that recommendation, he gave evidence that he would have spoken to the plaintiff and suggested that she take that up, first with the EAP, and then through the psychology branch. Her immediate supervisor would not have access to that document because of the need for confidentiality of medical information.
Chief Inspector Sorenson gave evidence that the obligation fell on the command for referring the plaintiff back to the PMO and police psychologist if any changes occurred in her condition. He was the duty officer for her team from time to time.
Chief Inspector Sorenson agreed that there was no reference in the spreadsheet, Ex E, of the plaintiff attending the house fire at Doyalson on 26 July 2004. A number of other officers were identified by name as attending that traumatic incident. Her attendance was, however, entered in a document entitled "Critical Incident History" as attending that fire (Ex G). Chief Inspector Sorenson could provide no explanation for why that attendance did not appear on the register of traumatic incidents, nor was an incident where the plaintiff was exposed to bodily fluids when she was spat at by an offender on 6 February 2006, causing her to be concerned. Chief Inspector Sorenson was asked: "Q: Can you explain why that wasn't added to the spreadsheet? A: Look, the spreadsheet is only as good as the supervisors that drive it, and that's probably the bottom line. If the supervisor doesn't put it in, or if - if the officer doesn't bring it to the attention of the supervisor in the first place, the supervisor doesn't put it in, there are several areas where a spreadsheet like this can fall down. This was purely developed because we had nothing to start with, and it was the best I could do with what I had - with my limited understanding of - of computer programming."
Chief Inspector Sorenson gave evidence that once a police officer had five or more incidents mentioned on the register, he would ring the EAP hotline and suggest that they give the police officer a call. He could not direct the police officer to attend psychological counselling.
Chief Inspector Sorenson also gave evidence of the standard operating procedure dated 16 August 2007 (Ex F). At that time, a follow up was required by the team leader or duty officer within a week, and again after three or four weeks, following a traumatic incident. He agreed that once a police officer got five or more traumatic incidents registered within the space of two years, that would be a red flag to his superior officers. Chief Inspector Sorenson said, in those circumstances: "A: Absolutely, and, and probably the way that I would have addressed it myself had I been there at that point in time, I would have sat down with, with Ms Peden or Sills, and spoken privately with her and asked her how she was travelling, then I would be guided by what she would confide in me.
He went on to give evidence that there was provision in every command for officers to go on permanent restricted duties.
Chief Inspector Sorenson was asked by the court about the evidence given of a culture that existed at the relevant period of time at TLLAC, of a reluctance to report emotional psychological problems, arising from police work, because it would be interpreted as a sign of weakness by the chain of command. He was asked for his comment in relation to that, and answered: "A: Yes, I certainly think that that's a, that's a total falsehood. We encourage people to be open with us, because we recognise the fact that the only way we can help is if we know and that was the reason why this spreadsheet was developed, was to make sure that we had the best chance possible to know and take early intervention and thus prevent people getting PTSD."

[9]

Evidence of Chief Inspector Rodney Mark Peet

Mr Peet joined the New South Police in 1990 and was posted to the TLLAC in 2004. His current rank was that of Chief Inspector. In 2004 he was a duty officer overseeing the general management and operational management of the command, which was comprised of three stations.
He gave evidence that in 2005 and 2006, there were a number of procedures undertaken by the command for dealing with traumatic events. The first was a peer support officer program, and the second was the EAP. In 2005, the TLLAC commenced a program called "Traumatic Incident Register and Response", which involved identifying a category of incidents that were above normal policing response which may invoke a degree of trauma.
That register involved a variety of responses. He gave the following evidence: "A: First was notifying the command management that an officer had been involved in one of those incidents. That would then trigger a response where the officer was sent an individual email and that email reminded them firstly of who our EAP provider was. Secondly, that the command would support them in contacting the EAP provider and the command would assist in that process as well. There was also an offer in that email that if the officer wished so, their contact details could be forwarded to the EAP provider so that contact could be initiated from the provider to the officer concerned. In addition, that officer - that would be placed on a register, the fact that that officer had been involved in a traumatic incident response, and that would be captured on a spreadsheet, and then we'd also monitor the number of incidents officers were involved in. When it reached the level of five traumatic incidents within 12 months, there was a debrief process that took place as well. In addition to that, if I'm on duty and someone's involved in something traumatic, something I'd find traumatic, or something I think they may find traumatic, personally I will contact people, I will ring them in my own time, I make follow up phone calls to just check that officer's okay, offer support and assistance and go beyond what a simple policy tries to capture."
Chief Inspector Peet gave evidence about the forms of debriefing available at TLLAC. The first was an onsite response from the psychology branch, who would despatch counsellors to the workplace. The duty officer would also include reference to attendance at traumatic incidents in the end of shift report (Ex 5).
He was asked to describe his working relationship with the plaintiff and stated: "A: I quite like Mel. She was a good worker, she was a fun person to be around, she had quite an effervescent personality. She could certainly do her job to the requisite standard and beyond that. I had many interactions with her, formally and informally, we established quite a rapport with her, I believe."
When asked whether she had ever said anything to him about problems she was having with her emotional state up until August 2006, Chief Inspector Peet could not recall specifically if she had told him she had a welfare issue. He gave evidence that he had discussions with her at various stages about relationships she was involved in, some family issues and some geographic issues around where she was living, but whether additional welfare things were mentioned he was not "one hundred per cent sure".
Chief Inspector Peet was asked what procedure would have been undertaken by him if the had discussed the emotional trauma she was suffering arising out of her work. He stated: "A: I would have to firstly minimise the risk and harm to the employee, fulfil my WHS obligations in protecting them from further harm, and most certainly from a personal perspective too, I don't want someone in a position where it's going to inflict further harm on them, so my response would be to remove them from that position to seek alternate duties and if that would have been expressed to me that those duties for Mel Peden were not manageable and they were causing her harm, then without hesitation, I would sought alternate duties for her."
He also gave evidence about the process for applying for transfers, for example to the Target Action Group ("TAG"), and that such applications were determined by a panel. He had sat on that panel many times.
When asked about a stigma in the TLLAC up until 2011, so far as coming forth and claiming emotional trauma, he answered: "A: I - I found the process quite receptive to it and I found that quite a number of people in the workplace, and who progressed through the workplace who had undergone emotional trauma, and were either in a limited capacity to work or in no capacity to work. At one stage in 2011, there were 28 officers unfit for duty, due to trauma related incidents. It was certainly well known in the command that that was a challenge we were facing, and certainly it was hugely topical, and to the point that it was readily discussed. I'd discuss it readily with people, I've been through the process myself, I've had issues with anxiety, depression, I've worked through them in the workplace, I've discussed that with other staff members quite openly, and that's really the - the culture we've tried to maintain in the workplace."
He gave the following evidence of the observations he made of the plaintiff between 2009 and 2011, when he saw her on a reasonably regular basis. He gave this evidence: "A: She was doing well when I spoke to her, she was still extremely pleasant to engage with, and still quite an effervescent personality. But there were some discussion I had in relation to some matters outside of work, that, from my perspective, I could see were having an impact on her."
Chief Inspector Peet gave evidence that there were selective duties available for someone who was affected emotionally by general duties. They included working at the NSW Call Centre for police.
In cross-examination, Chief Inspector Peet conceded that he could not recall the substance of all the discussions he had had with the plaintiff during 2009 and 2010. When she worked at the Exhibits Section in 2010, he was not her immediate supervisor, but did take her out to lunch on occasions. There were 228 people employed in the command. He identified the standard operating procedure for traumatic incidents (Ex F) as at 16 August 2007.
He gave evidence that attending traumatic incidents was not a unique experience within the command, but a constant in policing work.
He was asked about the recommendation of the PMO, but was not aware of whether the plaintiff had a course of psychological counselling. He said that his normal response would be to have "a one-on-one engagement with (the officer) that might commence with taking them out to lunch or taking them out to coffee, then building a relationship from there where I can assist them and support them in that process".
Chief Inspector Peet gave the following evidence about Dr Kirychenko's second recommendation: "Q: In terms of the last mentioned recommendation, a referral back to the PMC or police psychologist if any changes occur in the condition, I take it that would alert someone like yourself to monitor the situation so that if there was a problem there would be that referral; is that correct? A: There certainly would. So there's a series of ways that's monitored too. There's, firstly, the support officer in the workplace, then the senior management team and direct supervisors are aware of it, but then the injury management panel as well, there's doctors reporting to them. We review medical certificates. We have case conferences. So we actually go to the doctor with the workers and have those active consultations. We talk about duties, availability of alternate duties. I bring a list of 162 different jobs that we can offer these people and things like that. So we're quite engaged in this monitoring process and working with doctors in that respect. So that's part of the management process. It's not just ad hoc in the workplace that 'Oh maybe if I hear something we'll do something'. There's quite a formalised process where we monitor this and we address it." Q: It wasn't done in Mrs Sills' case was it? A: I can't see why there would be an exception in her case when this is quite an entrenched process, quite a defined process. It's, it's not something we take lightly and certainly not something we choose to ignore for one officer."
Chief Inspector Peet gave evidence about the protocol in the Exhibits Office. He gave evidence to the effect that if the duties involved in working in that section presented a threat or an increased risk, and it was posing a problem for the officer, then management would do a review with the doctor to determine whether the type of duty was appropriate.

[10]

Evidence of Chief Inspector Timothy Harold Winmill

Mr Winmill joined the New South Wales Police in 1989 and moved to the TLLAC in 2005 at the rank of Senior Constable. He was promoted to the rank of duty officer in 2006 and was a duty officer in 2009. By reference to contemporaneous notes he made, he gave evidence concerning the fatal motor vehicle accident on 1 April 2009 on Wyong Road, Tuggerah, which he attended. He did not see the plaintiff at the scene. Those notes included a reference that the plaintiff and another police officer had delivered a death message to the family, who were referred to Lifeline. He was asked about his recollection of any conversation with the plaintiff on the day after that accident, and answered as follows: "A: Yep and, and my next notes, if I could read that, it goes, 'Senior Constable Peden asked what school - which I asked her if she knew what school the deceased girl had gone to and the answer was 'unknown''. That says 'POSS', but possibly the Entrance High School or, 'The Entrance High' I've written. And I have a vague recollection of receiving a, a call from the Principal of the school asking - saying he'd heard a rumour that one of his students had died and he wanted to put something in place for the following day. But I'm not 100% certain, but I, I was specifically asked that question, so there was a reason for me to ask what school the young girl who had passed away had gone to. Q: Certainly. A: And then I've written, ' Peden spoken to re welfare'. Q: What did that mean? A: That I was a - my - I write that regularly, which means I've spoken to the officer in regard to, in this case, her welfare; how she was travelling after attending that job. In this case the - delivering the death message. And I honestly can't remember if, if she had delivered or she was still in the process of delivering it. I believe I've written there, 'delivered'. So, I think it had been done, but I don't recall. Q: Doing the best you can, do you recall the substance of what you had said to Senior Constable Peden about her welfare? A: Yeah, I've - I do this almost, you know, if not every shift, close to it if I have a concern for someone's welfare and I just basically ask, 'How are you going?', 'Are you alright?'."
The witness conceded he could not recall the exact words he used.
The witness was asked about Ex 4, a document entitled "Critical Welfare Incident Debrief", in respect of the fatal motor vehicle accident on 1 April 2009. It listed the 13 officers who had attended that incident, including the plaintiff. It recorded that an email was sent to the plaintiff on 2 April 2009, being a memo re debriefing. The columns adjacent to the plaintiff's name demonstrate that she did not respond to that email.
Chief Inspector Winmill's duty book extract became Ex 6.
Exhibit 7 was a shift report completed at the end of the shift on 1 April 2009. That report included, under the heading "Welfare Issues", a number of entries, including a reference to the plaintiff, notifying the family of the deceased of the Lifeline facility. Chief Inspector Winmill gave evidence that this section of the report was to highlight any welfare issues identified during the shift for the information of the senior management team, including the commander, the crime manager and local area manager. He gave evidence that any matter affecting the health and wellbeing of police officers was included in that section of the report.
Exhibit 8 was a bundle of traumatic welfare incident documents. It included a number of emails forwarded to the plaintiff following her attendance at traumatic incidents on 9 February 2007, (following her attendance at the incident where a worker was crushed to death under an excavator); 26 March 2009, (following her attendance at a fatal motor vehicle accident); 2 April 2009, (the fatal motor vehicle accident referred to above); and 12 May 2009, (following her attendance on a suicide). The emails provided information about the services of the EAP and confirmed that attendance on such a debrief was voluntary.
Chief Inspector Winmill gave evidence that the same procedure of recording welfare issues at the end of the shift was in place prior to 2009. He denied ever being dismissive of a police officer when an officer had complained to him about any stressful situation. He was asked whether to his knowledge there was any stigma or reluctance to police officers coming forward to report emotional issues regarding trauma at work at TLLAC, and gave the following evidence: "A: No, as - there is a constable and there's a sergeant and as an inspector, I would say it's the best command I've worked at for welfare and support of staff. And I myself have suffered mental health issues. I've spoken openly to many staff about that and I've made myself available at any time for someone. Most of the staff have my personal mobile number to ring me if they've got any concerns. I know I - as I've said, I've only recently transferred to another command and I found that I think it's significantly lacking the support of the staff."
In cross-examination, Chief Inspector Winmill gave evidence that he had never been in charge of team 2 at TLLAC, of which the plaintiff was a member. He confirmed that on 1 April 2009, he had not seen the plaintiff at the scene of the fatal motor vehicle accident. He had telephoned her after his return to the police station. He denied directing the plaintiff to deliver the death message. He gave evidence that he rang her to clarify what school the deceased went to, and also spoke to her about her welfare. He had no recollection that the plaintiff told him that she and the other police officer were staying at the home of the deceased, awaiting the arrival of her father. He conceded that that certainly could have been the case. He denied expressing concern to the plaintiff about over-time, saying "it was not an issue".
Chief Inspector Winmill gave evidence that he had spoken to the plaintiff over the phone about her welfare, asked how she was going, and if she needed any support.
The witness was then shown Ex H, and taken to the boxes on the first page of that exhibit, outlining the appropriate responses according to the number of traumatic incidents attended by a police officer. He was asked to assume that in May 2009 the plaintiff had received an email from Mr Long, stating in terms that she had been exposed to five traumatic incidents and she would think about going to see the EAP. Chief inspector Winmill gave evidence in respect of that as follows: "… An email would be sent as well, but I don't know if Tony Long met with Mel Peden or if, if Rod Peet did, or anyone else did. I don't, I don't know. An email would, would generally be sent as well, but I don't - yeah, as I said, if, if an email wasn't sent then yes, I, I would - in my opinion, that, that wouldn't be done properly. But it - my understanding is that it's not an email, it's a meeting. It's to go and sit down with the person and, and talk to them about it. But you would follow it up with an email. Q: The appropriate course is to actually meet with them, correct? A: I think so, yep."
Chief Inspector Winmill was asked about the incident on 2 February 2007 where the plaintiff attended a man who was crushed to death by an excavator. He gave this evidence: "Q: Was that the sort of incident after which you would expect the officers to receive some personal counselling? A: It's up to the officers. So we can offer. Some officers would have no issue with attending that and others would. So that's - the point is to offer it to them and we can't make them go to counselling. The whole point is to make it available. Some police would be quite upset, others wouldn't be in the slightest bit concerned by it. But clearly the Acting Sergeant was concerned enough to come and report it to me, and then I've reduced it to this so that action could be taken." The witness was referring to Ex 2, the Critical Welfare Incident Debrief document in respect of that incident.
Chief Inspector Winmill gave evidence that any recommendations made by the PMO would be the subject of discussion of the injury management panel which generally involved the commander, an HR duty officer, an injury management adviser and the local area manager, together with the general administrative officer. Information given to the police psychology unit remained confidential, however, the PMO's recommendations were dealt with by the injury management panel on a regular basis. He was asked: "Q: So if there was a recommendation by the police medical officer to say further training to be given to an officer to inform them about the way to handle going to traumatic events, say, that would be carried out, correct? A: I would suggest it would. I certainly wouldn't be going against that advice. But I can't give you the advice unless I was on the panel and have access to the notes. But my suggestion, if I was involved, I wouldn't going against a recommendation from a police medical officer, especially if it's to give more training. Q: Any recommendation from the police medical officers, so far as the future health concerns of an officer is concerned, that's something the panel would generally accept? A: That's their role, is to look after the welfare of the staff and to get them back to their duties. That's their job. Q: Also if there was a recommendation by a psychiatrist and an officer would be at risk to go back to general duties from a restricted duties position, that's something also the panel would take on board? A: Yep."
Chief Inspector Winmill was asked about the standard operating procedure dated 16 August 2007 (Ex F). He said that over time the procedure was improved. He was asked about that part of the document which required a duty officer or team leader to conduct a follow up check, one week, and then again three to four weeks after a traumatic incident. He regarded that type of follow up as not "a very workable" procedure. When asked why, he said it was definitely not realistic for team leaders to be required to follow up welfare issues relating to incidents. Rather, the spreadsheet in Ex H was the effective document for recording the number of traumatic incidents. However, he gave evidence that for a team leader to follow up staff exposed to traumatic incidents after one week would be a common practice, and to follow that up at three to four weeks was also not unreasonable. However, the spreadsheet (Ex H), did not record the follow up.
Chief Inspector Winmill denied the conversation about which the plaintiff gave evidence following the fatal motor vehicle accident on 1 April 2009, in which she said it was unfair for her to deliver the death message when she had attended the scene of the accident, and he replied "Too bad". There was no re‑examination.

[11]

Evidence of Ms Debra Anne Boswell

Ms Boswell was first employed in an administrative role with the New South Wales Police Service in 1990. In 2006 she was the local area manager at the TLLAC. Her duties comprised three major functions, namely, human resources, finance and injury management. She gave evidence that there were two databases kept for injury management. The first comprised records of those officers on workers compensation or sick leave. Separate to that, was a database tracking officers who had attended traumatic incidents. Exhibit H was an example of that type of database.
Ms Boswell gave evidence that an injury management team met monthly to discuss various HR issues concerning all the injured and ill police officers. She gave evidence of a system whereby if an officer had attended a traumatic incident, she or another officer would contact that officer and ask them whether they were in need of the EAP, or any other assistance.
Ms Boswell gave evidence that there was a procedure in place where a police officer went off work with a psychological injury and returned to work sooner than normal. In that situation, to ensure there were no concerns, that officer would be referred to the PMO and would also have to see the police psychologist. That is what in fact occurred to the plaintiff here.
She was shown the report of Dr Kirychenko and taken to his recommendations. She did not have a specific memory as to whether those recommendations were implemented. She gave the following evidence about the two systems in place for injured officers, namely, those who were off sick or in the workers compensation system, or part of the injury management system, and were discussed at monthly meetings. Otherwise the second system was that of tracking officers who went to traumatic events. Once they got to two or three such incidents, "then we would proactively follow them up". That involved getting the shift supervisor or duty officer to touch base with the police officer to see if they were okay, to see if they needed the EAP or any other help.
In the case of a workers compensation related matter, the insurance company had case officers who would work with the injured police officer. Where restricted duties were recommended, that was discussed at the monthly meetings of the injury management panel, and depending on what duties were available, those positions would be allocated.
In cross-examination, Ms Boswell gave evidence that there was an occasion before the plaintiff was referred to the PMO when she came into Ms Boswell's office and was upset and crying. She gave evidence that there were systems in place to ensure that any officers suffering a psychiatric injury were identified and received appropriate treatment. The database which identified the number of traumatic incidents attended by police officers, started very soon after she commenced work at the TLLAC. Her work also involved discussions with the Treasury Managed Fund ("TMF") regarding claims made by injured officers under the workers compensation scheme. She agreed that the Police Service was obliged to ensure that when an injured officer returned to work, appropriate persons would identify any hazards that he or she may encounter in the workplace that could cause further injury. She could not remember whether the PMOs' recommendations regarding the plaintiff had been implemented. When asked about the recommendation that the plaintiff be provided with a course of psychological counselling to teach her strategies to deal with her past and future traumatic events, the witness answered: "A: I think on reading that, we would have referred her to the EAP system. I can't tell you - I don't remember exactly whether that is what happened, but on reading it and knowing what we did as a usual practice, I would - I would think we would have ensured that she had access to EAP because that's where our psychological counselling would come from. And there was - there was a kind of favourite psychologist down there that a lot of people used from EAP, I can't remember his name now, but just from reading that, that's what I think would have happened, but I specifically - I cannot remember in this particular case."
Ms Boswell agreed that it was entirely optional for a police officer to attend the EAP.
The witness was asked about the report of Dr Gertler and his psychiatric assessment undertaken on 1 August 2007. She gave evidence that that report would go to the regional injury management adviser and would have been brought to the injury management meeting if there were any concerns with it.
In re-examination, the witness gave evidence that she doubted whether Dr Gertler's report would have come before the panel, as it was prepared for the purposes of a closed period workers compensation claim. She gave further evidence that if the plaintiff was receiving counselling through the workers compensation insurer, no records would come to the injury management panel. They would assume that she was getting the correct treatment.

[13]

The plaintiff's initial treatment and referral to the Police Medical Officer and police psychologist

Following the plaintiff reporting her anxiety attack on her way to work on 17 August 2006 to Sergeant Trench, she completed an incident notification form which described the incident as "stress/work related", and she consulted Dr Abery, her GP, who provided a Work Cover NSW medical certificate in which the doctor's diagnosis was recorded as "Post Traumatic Stress Disorder". It was her doctor's opinion that the worker's employment was a substantial contributing factor to that injury, and the management plan was for the plaintiff to be referred to a psychologist. She was certified as unfit for work from 18 August to 25 August 2006. A further medical certificate was provided for the period 1 September 2006 to 8 September 2006, based on the same diagnosis.
The plaintiff married on 9 September 2006 and was on previously approved annual leave until she returned to work on 24 September 2006. On her return, she found her police weapon had been double padlocked and she was placed on restricted duties. She was then referred to the New South Wales police psychologist and the PMO, both of whom examined her on 9 October 2006. The purpose of those examinations was to determine her fitness to return to full time duties.
The police psychologist, Ms Cimino, recorded that the plaintiff at that time did not present as anxious or depressed. Under the heading "Presenting Issues", she noted that the plaintiff had started having dreams about her eldest son burning and her youngest lying dead in bed. She also noted: "∙ Associated symptoms with critical incidents she has been exposed to throughout her employment with the police. Identified the following incidents: child and firefighter burnt to death in a house, guy set on fire in a car, cot death, fatal accidents, suicides and crime scene logs for murders. Betrayed little emotion when discussing these incidents. ∙ Reported after she attended a house fire, initiated contact with a EAP psychologist, however, did not find it beneficial. Said upon going off sick made contact with her GP who referred her to a private psychologist. Said she had a one-off session, however, could not afford further sessions. Said she maintains contact with her GP. ∙ Reported an improvement in functioning since going on leave. Said dreams have ceased and mood has improved. No disturbance in sleep, concentration or appetite. Identified a good support network, i.e. husband and colleagues … ∙ Denied excessive alcohol use. Said she might have one and half glasses of wine a night. Said there are nights she won't drink. ∙ Denied self-harm/suicidal ideation. ∙ Said she has returned to work on restricted duties and is a little apprehensive returning to GD's. Said she will cope with nature of the work, however, unable to identify protective factors to alleviate the impact of critical incidents."
Ms Cimino noted that she was prescribed anti-depressant medication a few years ago, but did not provide any details. Under the heading "Impressions", she recorded: "Symptoms consist of PTSS. Appear her time away from work has been beneficial in alleviating symptoms. Advised PMO, Dr Val Kirychenko, of the outcome of assessment. Expressed my concerns that Melanie has not had sufficient psychological intervention to protect her should she again encounter a traumatic incident at work. Recommended that she should undergo CBT to develop protective strategies to help her manage traumatic stress. Recommend she be closely monitored in the workplace."
Dr Kirychenko provided a report to Ms Boswell, dated 9 October 2006. She took a history that the plaintiff was then aged 29 years and had been working as a police officer for three and half years performing general duties. She had attended a number of very traumatic cases, including a child who was burned to death, a suicide by fire in a car, cot deaths and other suicides. She had started to experience dreams which showed her own children being burned or finding them dead, and had become anxious about going to work and having to confront further traumatic situations.
Dr Kirychenko recorded that the plaintiff stated "She is now well and has no more dreams". Assessment by way of psychometric testing demonstrated no condition which would prevent her from returning to full operational duties. Under the heading "Recommendations", Dr Kirychenko stated: "Return to full operational duties. As she will be exposed to further traumatic cases, a course of psychological counselling would be appropriate to teach her strategies to deal with her past and future traumatic events. Arrange a mutually acceptable officer to mentor and monitor her welfare and be a source of support. She should be referred back to the PMO/police psychologist if any changes occur in her condition."
The plaintiff's return to full duties was supervised by the workers compensation insurer, through a rehabilitation provider known as "Hill Street Group". They had a return to work plan which described the nature of her injury as "Post Traumatic Stress Disorder". Upon her return to work on 26 September 2006, she was on restricted duties which involved station duties only. Following clearance from the PMO, she returned to full operational duties on 10 October 2006.

[14]

The plaintiff's closed period workers compensation claim

As set out above, the plaintiff made a work claim for a closed period of workers compensation for the time she had off work from 25 August 2006 to 8 September 2006. Notwithstanding that the claim was later paid, it was initially refused on the basis of a report from a Mr Peter Briggs, a clinical psychologist. After some delay, which Mr Briggs attributed to the plaintiff engaging in avoidance behaviour, he interviewed the plaintiff. The plaintiff denied that he disclosed that he was a psychologist, but gave evidence that he said he was an investigator employed by the workers compensation insurance company.
Mr Briggs, in his report dated 6 November 2006, expressed some reservations about the genuineness of the plaintiff's reported symptoms. He also interviewed Acting Superintendent Kim Sorenson on 10 October 2006, who provided a statement in which he stated that he was suspicious of her claim. Acting Superintendent Sorenson said that in a conversation with the plaintiff on 5 October 2006, she had said words to the effect that she was not really sick during her time off, she was just tired of general duties and wanted some time off. He recorded that a sergeant was also present when she said this, however, he could not recall the name of the sergeant when he gave evidence at the trial. Acting Inspector Trevor Shiels was also interviewed on 10 October 2006. He stated that the plaintiff had been taking excessive sick leave. She had been trying to transfer to Newcastle region on compassionate grounds, however, her application for compassionate transfer was declined shorty before she went on leave. Mr Shiels had expressed some suspicions about her application for transfer. He had also told the investigator that the plaintiff had married a police officer who: "… as with his brother, has a dubious attitude regarding stress claims. He wonders whether her deteriorating performance over the last year is because of their influences."
Mr Briggs had concluded that although the plaintiff had reported a number of symptoms, they were not of sufficient severity to meet the criteria for a classifiable disorder. He reported reservations about the genuineness of her reported symptoms and noted that senior staff were suspicious of her claim. He recorded that at the time of the assessment she was fit for full pre‑injury duties. He described the plaintiff's symptoms as "relatively minor", and in the absence of a diagnosable psychological condition, he opined that her employment had not been identified as a substantial contributing factor.
By letter dated 29 November 2006, the workers compensation insurer advised the plaintiff that it was discontinuing provisional payments on her claim based on Mr Briggs' report.
The plaintiff sought legal advice in respect of her claim and was referred to Dr Robert Gertler who examined her on 1 August 2007. In his report dated 2 August 2007 (Ex B), Dr Gertler set out an attenuated history of the plaintiff's employment in the New South Wales Police Force from May 2003 and her exposure to numerous traumatic incidents. He noted that at that time, since her return to work in mid-September 2006, she had remained on restricted duties within the police station. Dr Gertler's opinion was that over the previous year the plaintiff's symptoms had slowly resolved, but she, nevertheless, remained with ongoing complaints. She still at that time had occasional nightmares and occasionally felt depressed and was on a small dose of anti-depressant. It was Dr Gertler's opinion that she was suffering from a chronic Post-Traumatic Stress Disorder which was partially resolved and was consistent with the history she provided. Dr Gertler opined as follows: "The prognosis for the Post-Traumatic Stress Disorder is fair. Symptoms which Ms Peden continues to experience are slowly diminishing with the passage of time. Given however that she is in a more controlled work environment which assists her in overcoming the symptoms of the Post‑Traumatic Stress Disorder, she would remain at risk for a worsening of her symptomatology if she were again exposed to her previous full range of duties. Her prognosis would also be improved if she were able to have a further 6-8 sessions of counselling by an appropriately qualified psychologist."
The plaintiff's closed period workers compensation claim was subsequently resolved by the workers compensation insurer paying, without an admission of liability, her statutory weekly benefits for the period claimed, i.e. 18 August 2006 to 8 September 2006.

[15]

The plaintiff's treatment from 2011

Following her second attempt at suicide on or about 1 June 2011, the plaintiff consulted Dr Abery who provided her with a certificate certifying that she was unfit for work. As set out in [71] above, she was also referred to a psychologist, Kevin Wallace, who she saw on several occasions. On 14 June 2011 she submitted a further incident notification form to her employer. It recorded a psychological injury and under the heading "How did the Injury Occur?", contained the following entry: "On 14/06/2011 attended a gp as was having suicidal thoughts as a result of numerous jobs that had attended while on duty such as drownings, fatalities and other serious incidents. Was referred to psychologist at a clinic GP Access Psychology King Street Newcastle. GP and psychologist have deemed unfit for duty." The plaintiff's treating psychologist was noted to be Dr Roger Peters.
In a report dated 3 August 2011, Dr Peters recorded that injuries she suffered in the motor vehicle accident in November 2010 continued to trouble her with migraine headaches and continuing pain. However, she reported to him the recurring symptoms of PTSD, namely, "hypervigilance, anxiety, a level of depression, tearfulness and an inability more generally to cope".
Dr Peters reported to Dr Abery that there are numerous triggers for people who have suffered from PTSD which could lead to relapse, and that PTSD is also a condition that is prone to "recovery and remission, but as … she had experienced a major relapse in recent times and this raises a spectre of doubt about her continuing service in the New South Wales Police Force".
Dr Peters referred the plaintiff on to a psychiatrist, Dr Murray.
Dr Peters also reported to Mr David Crossdale, Injury Management Advisor, New South Wales Police Force, a letter dated 19 October 2011. In that letter he informed the plaintiff's employer that his diagnosis was PTSD with Major Depression which he believed had been "an accumulative form". He was of the opinion that she was totally unfit now, and even if she was well sometime in the future, to engage in operational police duties, he recommended medical discharge from the Police Force.
Dr Peters also referred to her treatment by Dr Murray, psychiatrist, which he referred to as "optimum although she had not recovered from her PTSD".
Dr Murray wrote to Dr Abery on 2 September 2011, reporting: "Melanie is desperately embarrassed at being Hurt on Duty (HOD) and that, and the injury itself, brought significant loss of composure at the first session." At that time he had assessed her on two occasions. He diagnosed Post‑Traumatic Stress Disorder and Major Depression, and certified her as currently unfit for her usual work.
In a report dated 20 October 2011, Dr Murray described the plaintiff as "dangerously unwell". He stated: "The main reason for this is that Melanie hates being unwell, keeps most things about her injury a secret and quite often would rather be dead than be psychologically sick. One day NSWPF may understand that endemic stigmatisation of psychological HOD is the main reason police suicide and the main reason they present for treatment so late that there is generally little hope of getting them back to work. Instead, the fact that so few get back to work creates on the one hand cynicism (victims are weak/looking for a payout) and on the other hand fear (it will be the end of my career) - these views guarantee that police will continue to present late, if at all."
In a further report dated 8 November 2011, Dr Murray confirmed his diagnosis of PTSD resulting from years of service with the New South Wales Police Force and opined that the plaintiff was unfit to perform both operational and non-operational duties, and that this state of affairs was permanent and she should be discharged on medical grounds.
The plaintiff remained under the care of Dr Murray throughout 2012 and in a report dated 16 November 2012, he added to his previous diagnoses of PTSD and Major Depression in partial remission, an unrelated diagnosis of ADHD. Under the heading "Long Term Prognosis", Dr Murray opined: "PTSD is a chronic disorder and Melanie is likely to continue to experience symptoms at some level for the remainder of her life."
In a report dated 11 May 2013, Dr Murray recorded that he had seen the plaintiff on 30 occasions as at that date. At that time, Dr Murray was of the opinion that the plaintiff was unfit for work of any sort and unfit for occupational rehabilitation. She was unlikely to be fit for work or for occupational rehabilitation within the foreseeable future.
Dr Murray, in a report dated 22 August 2015, confirmed his diagnosis of PTSD and Major Depression with a pre-existing life-long diagnosis of ADHD. The symptoms of PTSD, relevant to his diagnosis when he assessed the plaintiff on 17 July 2015, included: "Marked difficulties with repeated, disturbing, and unwanted memories of trauma; significant difficulties with repeated, disturbing dreams of trauma; significant difficulties with immersive reliving of traumatic experiences; marked difficulties with emotional upset with reminders of trauma; marked difficulties with strong and unpleasant physical reactions to reminders of trauma; marked tendency to avoid memories, thoughts, and/or feelings related to trauma; extreme tendency to avoid external reminders of the traumatic events; significant trouble remembering important parts of the stressful experience; significant preoccupation with negative and/or nihilistic ideas; marked unreasonable preoccupation with a sense of guilt for traumatic events; marked difficulties with strong negative feelings (such as fear, horror, anger, guilt, or shame); marked loss of interest in previously enjoyable activities; extreme disruption of the normal sense of human connectedness; marked difficulty feeling positive emotions; marked problems with irritable, angry or aggressive behaviour; some disregard for personal safety; marked hypervigilance; marked tendency to startle; extreme impairment of concentration and extreme insomnia."
It was Dr Murray's opinion that the plaintiff was unlikely to work again because of the severity and treatment resistance of her psychiatric symptoms and associated disability.
In a further report dated 14 September 2017, Dr Murray confirmed his opinion that the plaintiff was unfit for work. He noted that she had made very slow progress, suggesting a poor prognosis.
Finally, in a report dated 3 October 2017, Dr Murray stated that he agreed with the opinions expressed by Dr Diamond in his reports dated 14 September 2016 and 5 July 2015.
The plaintiff also relied on a report of Dr K Akkerman dated 28 November 2011. Dr Akkerman examined the plaintiff on 25 November 2011, on behalf of the defendant, to provide the defendant with an expert opinion as to whether she should be medically discharged. He was qualified with the reports of Dr Peters and Dr Murray, which were then available, and confirmed the diagnosis of Post-Traumatic Stress Disorder and Major Depression, to which he added a diagnosis of "Alcohol Abuse". He opined that she was not capable of working as either an operational or non-operational police officer, nor did she have the capacity to work external to the New South Wales Police Force, due to the severity of her symptoms. In Dr Akkerman's opinion, the plaintiff has "a total and permanent disablement".
The plaintiff also relied on the report of Dr Wayne Mason, consultant psychiatrist, dated 25 February 2013. Dr Mason examined the plaintiff on 22 February 2013 and took a detailed history of her exposure to traumatic incidents during her employment in the Police Force. It was Dr Mason's opinion that the plaintiff suffered from "very severe psychiatric problems". Diagnoses of Post-Traumatic Stress Disorder and Major Depressive Disorder were substantially caused by her employment with the New South Wales Police Force, which was "beyond doubt". With regard to her employability, he opined that the plaintiff was "totally impaired and cannot work at all".
The plaintiff also relied on a report of Dr Christopher Bench, psychiatrist, dated 9 September 2013. He assessed the plaintiff on behalf of "EML Sydney" and set out a detailed history. He opined that she met the diagnostic criteria for Major Depressive Disorder and PTSD. Given the severity of her symptomatology, he recommended that she be medically discharged from the New South Wales Police Force. Otherwise, his opinions were largely in accordance with those provided by Dr Mason. Where they diverged, was that Dr Bench was of the opinion that she had not as yet reached maximal medical improvement.
Dr M Diamond provided three reports to the plaintiff's solicitors dated 5 July 2015, 1 September 2015 and 14 September 2016 respectively. Following a direction from the court for a conclave to take place between Dr Diamond and the psychiatrist relied on by the defendant, Professor C Tennant, that a joint report be provided identifying areas of agreement and disagreement between the two expert witnesses, a further report of Dr Diamond dated 24 February 2018 became Ex J. In that report, Dr Diamond noted that both agreed that at the time of her discharge from the New South Wales Police Force, the plaintiff suffered PTSD in its chronic form and there was no dispute that she also suffered a Major Depressive Disorder and a Substance Dependence Disorder. The opinions of Dr Diamond and Professor Tennant diverged, in that Professor Tennant's position was that the plaintiff was fit to return to work in 2006, whereas Dr Diamond was of the opinion that her injury and impairment remained chronic and worsened over time following her return to work in 2006. Thus, the issue became whether the plaintiff's current diagnoses were as a result of an ongoing existence of work-related trauma‑based illness or not.
Dr Diamond examined the plaintiff on 12 June 2015 over a period of three hours and 15 minutes. He took a comprehensive personal and medical history and was qualified with various medical reports from Drs Peters, Murray, Mason and Bench, referred to above. On mental state examination, Dr Diamond reported that the plaintiff described clear features of ongoing chronic PTSD, including re-experiencing phenomena such as nightmares and flashbacks. She displayed and described avoidance behaviour extending across most of her activities and demonstrated hyper-arousal with agitation. She showed some depression, anxiety and agitation.
Dr Diamond was of the opinion that the reports of her treating psychiatrist, Dr Murray, were that they clearly described the severity of the plaintiff's illness and the disability caused by her psychiatric illness, together with the causation of that illness being work-related trauma and importantly, the fact that the plaintiff presented late in the course of the development of her illness. As set out above, Dr Murray had reported the very strong reluctance associated with avoidant behaviour on the part of the plaintiff to escape further censure about workplace injury and to avoid the humiliation of being identified in the work environment as suffering from a psychological injury. Under the heading "Diagnosis" Dr Diamond reported as follows: "Ms Sills has a major diagnosis in her case of Chronic PTSD in keeping with DSM1V-TR diagnostic criteria. She has all the features consistent with a diagnosis including many experiences of exposure to overwhelming and awful incidents in the course of her police work. She has persistent hyper-arousal. She has ongoing symptoms associated with reliving the trauma. She has intrusive flashback experiences and also disturbing nightmares that persist. She is highly avoidant in her behaviour generally and focusses herself by attempting to keep busy and to set herself challenging tasks." He also diagnosed a Major Depressive Disorder and Substance Abuse Disorder in relation to alcohol.
Dr Diamond described the plaintiff as having a poor prognosis, having suffered illness for over a decade following her impairment prior to 2006. He opined: "She attempted to self-manage her illness largely through avoidant behaviour and self-treatment with alcohol that she used as a sedative. Her condition worsened over time until she was so dangerously unwell with repeated suicide attempts that she came into treatment finally in 2011."
Dr Diamond was of the opinion that the plaintiff should have been monitored by the NSW Police Force, having been clearly identified as an officer at risk by the PMO in 2006. Such monitoring that was actually undertaken thereafter he described as "facile and inappropriate", leading to her not being provided with timely psychological treatment. The deterioration of her condition was, in his opinion, "very much affected by her return to general duties work", particularly after she had signalled her wish not to be in that environment.
In his report dated 1 September 2015, Dr Diamond opined that the plaintiff suffered incapacity for employment as a result of her psychological injury. In his opinion, the plaintiff was "not likely to ever be engaged for employment for which she has training, skills and experience".
In his report dated 14 September 2016, Dr Diamond set out his expertise as a specialist psychiatrist, and his familiarity with the responsibilities and work environment of police officers, having work operationally with the NSW Police and other Police Forces for many years. In response to a number of questions asked of him in that report, he expressed the following opinions: "(i) The severity of the plaintiff's psychological injury from a clinical perspective was sufficiently observed and documented at the time the assessment of her workplace injury in 2006 occurred and thereafter. From that point onwards the plaintiff was identified as a police officer who suffered psychiatric injury as a result of workplace trauma. (ii) The existence of obvious PTSD would have been confirmed by an appropriately qualified psychiatrist at or around 9 October 2006 when the plaintiff was examined by the PMO. (iii) The report of Mr Briggs in respect of her claim for workers compensation benefits for a closed period lacked inquiry as to the background of the possible sources of trauma suffered by the plaintiff. (iv) By the time of the receipt by the plaintiff of an email from Inspector Long in 2009 identifying the plaintiff as an officer who had been exposed to more than five critical incidents, the appropriate step for a senior officer to address the plaintiff confidentially and personally to discuss the possible effects on her health. (v) At the time of that email, the plaintiff's vulnerability had been flagged both by her 2006 notifications, and her attendance at more than five critical incidents. (vi) The plaintiff's service within the NSW Police Force materially contributed to the worsening of her injury between August 2006 and 7 June 2011. (vii) Had the plaintiff been afforded an opportunity to work in a more protective environment and to have received appropriate treatment and not been exposed to additional workplace trauma, she would now have had a greater capacity for employment outside the Police Force than she now has.
Dr Diamond was required for cross-examination. An objection was taken to his reports initially on the basis of his qualification, and Counsel for the defendant was given the opportunity to ask questions on a voir dire as to his qualifications. Following the voir dire, the objection was withdrawn and an order made that the evidence on the voir dire become evidence in the proceedings. That evidence demonstrated amply the qualifications, expertise and practical experience Dr Diamond had garnered over many years in dealing with police workplace trauma and psychological injury arising therefrom.
In cross-examination, Dr Diamond gave evidence that he had examined many police officers over a number of years, both in respect of workers compensation and damages claims, but also many more in the context of treatment. When asked whether he would agree that it was a common feature with police officers that they are reluctant to come forward when feeling some kind of emotional problem at work, because they might feel there is a stigma attached, he answered: "A: Police officers vary a great deal in, in their willingness to come forward depending on the work environment and how they perceive that to be. There are some officers who are quite comfortable to come forward because they feel that they are supported. There are other officers who feel very threatened and feel that their position would be undermined."
Dr Diamond agreed it would be beneficial for the employer to have a method of ascertaining whether officers had been present at a traumatic incident, as it would enable the employer to take a proactive stance and initiate dialogue with police who were exposed to trauma.
He agreed that the type of system instigated by Chief Inspector Sorenson in 2004, as evidenced in Ex 8, was an appropriate course for the police service to take.
Dr Diamond was shown the email from Inspector Long to the plaintiff dated 22 May 2009, and her response, stating "I'm seeking counselling outside of work". When asked whether the employer should have done anything more, he answered, "Yes I do". He gave the following evidence: "Q: His response was that she should go and see her doctor and take time off. A: Yes. Q: Was that an appropriate response? A: Yes. Q: You know from what you've read that she did go and see her doctor? A: Yes. Q: And she was prescribed treatment? A: Yes, that's what she told me. Q: And in between that time she had her wedding and a honeymoon? A: That's correct. Q: When she came back from the honeymoon and eventually came back to work you know, don't you, that she was not permitted to carry her gun? A: Yes. Q: And you know, don't you, that when she was told she couldn't have her appointments which included her service revolver that she was angry about that? A: I know what she told me at interview. It wasn't so much angry about it. It was she wanted to preserve her face within the command. She wanted to be able to not have to show vulnerability and I think at that time she had already been assessed by Mr Briggs and had her claim rejected. Is that incorrect?"
Dr Diamond agreed that the response of Sergeant Trench on 18 August 2006 after seeing the plaintiff crying and very upset, and advising her to see her doctor and take time off work, was an appropriate response.
Dr Diamond also agreed that having seen the police psychologist and PMO when she returned to work, she was not placed directly back on general duties and that was an appropriate response. It was only when she had successfully completed the rehabilitation program that she went back on to general duties.
Dr Diamond gave evidence that part of the plaintiff's PTSD was a very strong manifestation of avoidant behaviour which was a strong symptom of the condition. He was asked: "Q: Those steps, the acceptance of the complaint, the referral to the police medical officer, the police psychologist, rehabilitation, objectively seen were all reasonable responses to what this officer claims she had suffered, correct? A: Well, I don't mean to be difficult but the police medical officer gave a very qualified view about her vulnerability, her state at the time and I think the police psychologist did a very similar thing. It wasn't an unequivocal clearance for work. It was acknowledging the work-related injury at the time and it was to recommend certain things be done in order to bolster the support that she would need as they foreshadowed and so it was qualified so I can't simply agree with what you've put to me because I think there was clearly acknowledgment that she was unwell. Q: But did you find anything in the materials that were supplied to you that could have possibly alerted the employer to the fact that despite the plaintiff suggesting that she wanted to go back to general duties, the employer ought to have done something different and stopped her? A: Well, they should have talked to her, that's my point. Q: Well, you'd say that the police psychologist having a consultation with her is talking to her, correct? A: Well, no. The consultation that she had was very much a purpose-driven interaction. She was there for clearance; that was why she went there. She wasn't there for treatment. She wasn't there for assistance. She was there to be able to return to work, to retain her position because that was a primary driver on her part and she wanted that police clearance. She wanted to be able to go back to work, so in that environment, she came back from her period of leave, sick leave and recreational leave, and my understanding is that she then fronted up intent on saying, "I'm much better now. My symptoms are less and I want to go back to work." If you read those documents, they are a bit uncertain and they are a bit qualified, and they talk about a need for support and they talk about observation, and they talk about access to somebody to support her in the work environment. So it's a very qualified clearance that occurred at that time and I don't think those warnings were properly heeded. I think the documentation is sensible to alert her and say these are things that could be helpful but I don't think it was followed through with any sufficient purpose or responsibility. Q: But given the responses that the employer has engaged in immediately in 2006 - and I'm focusing now on that period of August 2006 to October 2006, is it your opinion that irrespective the plaintiff should have been medically discharged? A: No, no. No, no, I think she should have been spoken to in a way a manager would talk to a subordinate and really want to elaborate a bit more, 'Well, how are you and what do you feel you're capable of doing?' Q: If officers had been speaking to her and asking her how she was and she was giving the same response, namely, she's fine but actually wasn't, you accept that there's nothing more the employer could have done? A: Yes. I think if she was spoken to in that way and we knew that that occurred I think that the employer would have taken their responsibility a step further."
In relation to the plaintiff's alcohol dependence, Dr Diamond was asked as follows: "Q: The plaintiff has given evidence that she is not undertaking any drug or alcohol counselling. Do you believe that drug and alcohol counselling would assist her in terms of her issue with alcohol? A: Well, I think you have to understand the claimant's alcohol-related illness. My assessment of her was that she had no alcohol-related illness before she joined the police and before she became psychiatrically affected by the work she did and it's very very common, almost more common than not, for individuals such as police officers who have been traumatised to attempt to sedate themselves and self-treat using a readily available sedative which is alcohol. Her development of alcohol-related problems is in my mind a comorbid and secondary manifestation of her post-traumatic stress disorder so it's not simply the case to say, well, here we have somebody who's drinking unwisely or has a love of alcohol or is associating alcohol with other reckless behaviour. She's actually dependent on alcohol as a substance in an attempt to try and lessen the effects of her post-traumatic stress disorder. Q: I'm not suggesting to the contrary, doctor. I think we might be at cross‑purposes. A: Right. Q: I'm saying would she benefit - assuming that this is the extension of her post-traumatic stress disorder, would she benefit from drug and alcohol counselling to either minimise or try and get off the alcohol or replace it with something that is more beneficial? A: Yes, I think she would benefit if she could do it."
When asked whether he would agree that the plaintiff would have been "nowhere near as vulnerable to psychological injury or aggravation to her psychological injury if she did exhibit work", Dr Diamond gave evidence that the environment of working with the exhibits was "actually quite treacherous" because officers with the reservoir of trauma that was very easily triggered and the exhibits are often the triggering entity that cause exacerbation of the illness.
It was put to Dr Diamond that the employer would have to have some kind of notice, either by her behaviour or something she wrote, that the work in exhibits was causing her trauma, to which he answered: "A: Well to an extent, but I think the employer is also in a position where they could simply call her in and say 'Well, how's the change going? Are you managing? What's been happening?'. You know, there's a conversation to be had in my mind that would be a reasonable management of an injured officer."
Dr Diamond was cross-examined about the external stressors in the plaintiff's life at relevant times, including financial difficulties brought about by her husband's gambling. He was asked: "Q: But in terms of any capacity to work properly what role do they play if they were quite acute as opposed to the PTSD? A: I don't think you can, you can separate the two. I think if somebody has chronic post‑traumatic stress disorder which is the way I understood the illness I think external stressors can be relevant in exacerbating the illness and can I just explain that because it's necessary? Q: Yes. A: Individuals with chronic post‑traumatic stress disorder are not only susceptible to identifiable trauma related to the previous trauma, their vulnerability is about the abnormal state of arousal that they are left with as a result of the chronic post‑traumatic stress disorder. So if they didn't have post‑traumatic stress disorder and they had a gambling husband and they were suffering financial hardship they could react to that, but for somebody with post‑traumatic stress disorder it could make the post‑traumatic stress disorder more difficult, so they were a more vulnerable person. Q: So you make it more difficult in terms of treatment or management? A: Well just in terms of the propensity to feel out of control, to have concerns about not being on top of one's life or responsibilities and feeling vulnerable as a result of that and that would go into post‑traumatic stress disorder nexus."
Dr Diamond was then asked whether the episode involving the ex-husband being violent towards the plaintiff played a role in the plaintiff's mental health: "Q: You can't say, can you, that these kinds of external stressors played no role in the plaintiff's psychological state of mind? A: No, I said they do, but all I'm saying is from a causative perspective she already had the condition, that's the important point."
In re-examination, Dr Diamond said, based on his experience, when police officers are invited to avail themselves of services in assistance for emotional problems, they are far more often not taken up for reasons to do with the reluctance of officers to reveal their vulnerability in a workplace where there is a perceived stigma or where their job may directly be under threat.
Dr Diamond also gave evidence that the recommendations of the PMO and the psychologist for the plaintiff to be mentored and closely monitored, may have been valuable if that had been provided by someone the officer trusted. He was also asked about her avoidant behaviour and Dr Murray's comment that she was desperately embarrassed about being unwell. He was asked: "Q: Does it also make it harder to get her back to work? A: Yes. Q: Yes. A: The avoidance symptom of post-traumatic stress disorder is particularly disabling because what avoidance does is that whenever there is the potential to have a heightened response in terms of intensification of distress or intensification of re-experiencing trauma, by avoiding there's an immediate relief so the short term effect of the avoidance is spectacularly successful. Unfortunately, it has a very powerful learning component so that it teaches you to avoid further. So whenever you get the propensity to become depressed or distressed by an external event the first reaction is to avoid and that avoidant behaviour becomes really entrenched and adds to compounding disability. And one sees that, for example, with the alcohol, the emotional numbing effect of the alcohol is often a manifestation of the post-traumatic stress disorder symptom of avoidance because it shuts off the emotions."
I then asked Dr Diamond: "Q: Just pause before you answer this less there be an objection but in terms of the mentoring system there's a self-evident flaw in any such system the fact that the mentors are not psychologically trained. Can you answer that? A; The mentors are often officers who are well meaning. They are also officers who might be seen to be a bit more psychologically sensitive or amenable but very often they are not particularly skilled and they don't have sufficient training to provide the crucial input at the crucial time. And I've experienced times with patients that I treat where in fact the advice given is almost the opposite of what is needed so the skill levels are not high."

[16]

The defendant's evidence

The defendant tendered a witness bundle comprising 157 items and 331 pages (Ex 9). It included numerous consultation notes of Dr Abery for the plaintiff, documents relating to the plaintiff's workers compensation claim, debriefing questionnaires, the reports of Dr Kirychenko, PMO, referred to above, and Ms Renata Cimino, police psychologist, and documents relating to her employment in the Police Force.
The consultation notes of Dr Abery dated 18 August 2006, confirmed, at that time, the diagnosis of PTSD. The notes included the following: "Supervisor told pt to come here. Was a wreck last night, for no reason. Does not like to show it at work. Told him a bit about having - long story - went to a suicide where guy burnt himself in a car. Also 2 years ago attended another fire, where little 3 year old boy and fireman died. Went to counselling. In charge of this recent matter with car fire. Having dreams of self and boys burning alive. Mainly about fire. Not sleeping well, putting on front to go to work. Last night it came out. Also bad run of "deceaseds", and in highway patrol last week. Went to EAP with police force last time. Was crappy. Was made to go after house fire. Elliott was exactly same age as boy who died. Does not feel depressed. Loves being at home. Driving to work recently, was petrified going in to work. Pulled over had a bawl, wanted to go home, went to work, no-one knew anything. All of a sudden things have got to pt. Took couple of annual leave days. Boss recommended WC, not annual leave. EAP - police have contract with these people in Darby St. Actions: Letter Created - re. PTSD to WC. Was not very happy with lady Psychologist - she just asked what happened, like media, without asking how pt was. Did not seem experienced. Walked out of there. Boss made pt go there. Nightmares since the incident in March 1st, the fire. 10 deceased and couple of suicides since then. Children are suffering, mother is moody, over-protective. They do not care, just tell pt to go to EAP - badly run organisation. 0 if can"t cope. Lots of people suffer in silence - some have been there 10 to 15 years. Pt there 3 and 1/2 years. Office work is not OK at present - last night was in office, was in toilet in tears all night, which is not pt, and then boss knew something wrong. Working next 5 days straight from Thursday. Will have those days off, and see where is. Chestnut oil from naturopath. Not normal what one sees. Domestics where kids suffer, lowest society daily, and other horrible stuff one sees. Has changed pf's way of thinking."
Included in Ex 9 was a rating report of the plaintiff as a probationary constable by the duty officer, Kim Sorenson. He stated: "I have had the opportunity to observe Melanie at work on many occasions. My impression of her is that she is a consistently high achiever who performs at a level far higher than her short time as a police officer would suggest she should be able to do. In addition to my observations of her present work performance, I've also formed the opinion that she is the type of person who will continue to work at a very high level should she be allowed to stay at her location of preference."
Exhibit 9 also included several six-monthly debriefing questionnaires completed by the plaintiff in 2007. She had for a time worked as an undercover police officer and the questionnaires were a pro-forma document completed by the plaintiff in which she acknowledged that the Police Service offered numerous areas where officers could seek assistance with regards to personal matters, including peer support officers, Employee Assistance Program, Police Chaplain, workplace supervisors, all undercover supervisors, undercover branch personnel, and the psychology branch.

[17]

The defendant's medical evidence

The defendant relied on two reports of Dr Graham Vickery, psychiatrist, dated 30 June 2015 and 27 March 2017. Dr Vickery examined the plaintiff on 30 June 2015, at which time he was qualified with the following documents: "(1) Section 282 Notice by Harris Wheeler Lawyers dated 12 September 2014 (2) Request for further and better particulars dated 23 September 2014 (3) Response to request for further and better particulars dated 2 April 2015 (4) Police medical file (5) Police medical discharge file (6) Police promotion transfer and selections file (7) Police rehabilitation file (8) Desktop investigation by Lee Kelly dated 17 December 2014"
Dr Vickery found no evidence of psychiatric incapacity in the plaintiff on clinical examination. On the basis of the private investigators' report, he opined that there was no objective evidence of any diagnosable DSM-1V psychiatric injury or condition and that she was currently fit for work without any restrictions.
In his report dated 27 March 2017, Dr Vickery recorded that he examined the plaintiff again on 27 March 2017. On this occasion he was qualified with the reports of Dr Diamond, Dr Bench and a Medical Assessment Certificate of Dr Rose dated 8 May 2014. Dr Vickery set out the history of presenting complaints and his findings on mental state examination. Without providing an opinion as to his diagnosis, he stated: "The prognosis is guarded." His opinion was that she was fit for work up to four hours a day, three days a week and was able to undertake sedentary employment with an alternate employer. Under the heading "Any Other Issue you Deem Relevant", he stated: "Ms Sills reported a deterioration in her psycho-pathology which is likely to be associated with an increase in her alcohol abuse and the break-up of her two year heterosexual relationship."
The defendant also relied on a report of Professor Christopher Tennant dated 9 November 2015. Professor Tennant did not examine the plaintiff. In his report he set out the phases of the development of any stress related psychiatric disorder and some suggestions for screening of employees who are at risk of developing PTSD.
Professor Tennant then summarised a number of documents with which he was qualified. These included the pre-liability assessment of Mr Briggs dated 2 November 2006, various legal and investigative documents, reports of Dr Murray, Dr Mason, Dr Bench and Dr Diamond, as well as the Police Medical file, the PMO report dated 9 October 2006, and the report of Dr Akkerman dated 28 November 2011.
Professor Tennant concluded that there were no omissions or commissions relevant to the duty of care of the defendant and that the plaintiff had been "less than responsible in her own care".
In his report, following his meeting with Dr Diamond (Ex 14), Professor Tennant referred to the general practice records of Dr Abery, which he described as "a critical document". He noted that depressive symptoms were first identified on 3 February 2005, and over the next 12 months there were 12 consultations without evidence of psychological problems. He then referred to the examination on 18 August 2006 in the following terms: "On 18/8/06 an observant supervisor referred her to the GP and she was identified as having nightmares and poor sleep. She was not depressed. The supervisor recommended, the EAP in addition. A letter was provided noting PTSD for workers compensation. She saw a private psychologist. She had several weeks off work. There were personal problems in her marriage of some significance." (The consultation notes, which are set out in [277] above for 18 August 2006 exam do not bear this out).
Professor Tennant noted that the plaintiff returned to work in late September 2006 on restricted duties. Over the next two years she had 24 consultations with her GP, and spent 12 months on maternity leave. There was no report of any psychiatric disturbance until 6 October 2010. Professor Tennant then refers to the motor vehicle accident in which she suffered soft tissue injuries on 17 November 2010. Over the next six months she was reviewed on 15 occasions without reports of psychiatric problems.
On 25 May 2011 her GP Dr Abery raised the possibility of depression and the plaintiff was treated with an anti-depressant. There were nine further consultations and she was eventually referred to Dr Murray. Professor Tennant states that "the diagnosis PTSD and depression is made after she has left the workplace". He disagreed with Dr Diamond, as he could not agree that she has a chronic PTSD with onset in 2006, continuing to the present time.
Professor Tennant was required for cross-examination and gave evidence by telephone. By leave, he gave evidence in chief that the protocols he had in mind when providing an opinion regarding screening and monitoring of police employees was an Ombudsman's report in relation to the practical screening of police officers, recording the frequency of traumatic events and the screening of "particularly high risk positions".
In cross-examination, Professor Tennant gave evidence that generally what happens with all trauma responses is that after the trauma ceases, there is a resolution of symptoms over time. The perpetuation or chronicity becomes more apparent if there are repeated ongoing traumas of any type. He agreed that his opinion diverged from that of Dr Diamond because he took the view that as at 2006 the plaintiff was not suffering from chronic PTSD. He agreed that he did not have the opportunity of examining the plaintiff, nor the opportunity of obtaining from her a history of the development of her symptoms. He agreed that a significant matter he had regard to in expressing his opinion was that Dr Abery had never diagnosed the plaintiff as suffering a chronic PTSD as at 2006. He acknowledged that at that time Dr Abery did diagnose PTSD. The symptoms that Dr Mason described the plaintiff suffering in 2006 of "sleeplessness, nightmares, anxiety, panic attacks, tearfulness, excessive alcohol intake and avoiding jobs" were far more likely to be symptoms of a depressive disorder than a chronic PTSD. However, he did not doubt that the plaintiff had a significant disorder as at 2006.
Professor Tennant gave evidence that the history recorded by Dr Mason and Dr Bench in respect of the plaintiff would amount, if anything, to a delayed onset PTSD in 2011. Professor Tennant repeated his opinion that the plaintiff had no PTSD when she returned to work in September 2006. The notation by the police psychologist that she suffered "symptoms consistent with PTSS" referred to the plaintiff suffering Post-Traumatic Stress symptoms, which did not equate to a diagnosis of PTSD.
Professor Tennant gave evidence that there were four documents upon which he relied heavily to reach his conclusion that she was not suffering chronic PTSD as at late 2006. They included Mr Briggs' report, the report of the police psychologist and PMO, and the GP's clinical notes.
Professor Tennant was aware that in May 2007 Dr Gertler had diagnosed the plaintiff with a chronic PTSD which had partially resolved. He did not refer to Dr Gertler's opinion in either of his reports. He gave evidence that the history provided to Dr Gertler was not consistent with the contemporaneous record of the plaintiff's GP at the time.
Annexure 5 to his report entitled "New South Wales, Police Forces Resources for Education, Monitoring, Assessment and Management of Occupational Mental Health" was a limited history of the evolution of the police processes for dealing with psychological conditions. It contained expressions of his opinion as to what an employee should do, including the following words: "An employee or individual has some responsibility for recognising their own distress, upset or sadness, and putting their hands up to seek help."
Professor Tennant gave evidence that the patient was quite aware of her emotional distress and had demonstrated that she could act upon it. He stated: "It's therefore very surprising that she would go from 2006 through to 2011 with, for your proposition, significant distress and do nothing about it. That's, that is the guts of the matter."
It was put to Professor Tennant that in no less than nine places in his report he had expressed opinions that were not medical opinions. It was fairly put to Professor Tennant that he was advocating in those multiple entries the position of the New South Police Service, rather than assisting the court impartially on matters relevant to his area of expertise.
In re-examination, Professor Tennant was asked whether there was any difference between PTSS or PTSD diagnosed pursuant to DSM-1V. The difference was that PTSS are symptoms which are normal stress responses, and they do not predict later development of PTSD.

[18]

Factual findings

As set out above, the chronological history of events is not in dispute. Each of the witnesses who gave evidence in the proceedings did so candidly, and no adverse findings as to credit were advocated by the parties in respect of any of them. The plaintiff was a witness of truth who gave her evidence with a flattened effect and did not embellish any aspect of her evidence at all. Having regard to all of the evidence, I make the following findings of fact: 1. From the time she was attested as a police officer in 2003, until she was diagnosed with PTSD in 2006, the plaintiff was a committed, hard‑working police officer, well regarded by her peers and superior officers at the LLAC. 2. Between 2003 and 2005, the plaintiff attended a number of traumatic incidents, including suicides, motor vehicle accidents, stabbings and other violent events. On 26 July 2004 she attended the house fire at Doyalson, in which a young child perished. 3. Following that incident, the plaintiff attended an EAP psychologist, following which, she felt worse. 4. The plaintiff suffered both nightmares and flashbacks of traumatic events attended by her, including the Doyalson house fire and a cot death she attended in November 2004. She commenced to drink heavily to enable her to get to sleep. 5. The plaintiff consulted a GP, Dr Abery, in 2004 and in 2005 was prescribed anti-depressant medication for the first time by Dr Abery. 6. In 2005 and 2006 the plaintiff attended a number of traumatic incidents including the drowning of a young man in a resort swimming pool at Blue Bay in December 2005, and the death by self-immolation of a man in his car at Norah Head in March 2006. 7. The plaintiff thereafter suffered symptoms of anxiety, that is heart palpitations and difficulty breathing at times. Her drinking escalated and her work was affected. She applied for a transfer out of general duties to avoid attending further traumatic incidents, but her application was unsuccessful. 8. On 17 August 2006 the plaintiff suffered a panic attack on her way to work. Having disclosed this to her team leader, Sergeant Trench, she accepted his advice and went home and saw her GP. 9. The plaintiff was examined by Dr Abery on 18 August 2006. The notes of that examination are set out in [277] above. Those notes amply demonstrate the plaintiff suffering a psychological reaction to her work, which Dr Abery characterised as PTSD. 10. On her return to work on 26 September 2006, the plaintiff found her appointments double padlocked and was referred to the PMO and to the police psychologist. 11. The police psychologist, Ms Cimino, expressed concern that the plaintiff had not had sufficient psychological intervention to protect her should she again encounter a traumatic incident at work. She recommended the plaintiff "undergo CBT to develop protective strategies to help her manage traumatic stress", and that "she be closely monitored in the workplace". 12. The plaintiff did not undergo any such treatment, and was not monitored closely in the workplace. 13. The PMO, Dr Kirychenko, recommended the plaintiff return to full time operational duties. His recommendation was qualified as set out in [227] above, to the effect that she required a course of psychological counselling to teach her strategies to deal with her past and future traumatic events, and that a mutually acceptable officer be appointed to mentor and monitor her welfare. 14. The plaintiff underwent no course of counselling as recommended. I accept the plaintiff's evidence that Sergeant Greene was selected to mentor her, however, for the reasons outlined by the plaintiff, that did not eventuate. In so finding, I make no adverse finding regarding Sergeant Greene's evidence to the contrary. Given the passage of time, and the fact that no mentoring took place at all, her lapse of memory was understandable. 15. In February 2007 the plaintiff attended a scene where an elderly man was run over and killed by a steamroller. She had to deliver a death message to his family. 16. In May 2007 the plaintiff was pregnant and was assigned to station duties. 17. To support her workers compensation claim, the plaintiff was examined by Dr Gertler, psychiatrist, on 1 August 2007, who diagnosed a chronic PTSD that was partially resolved, but that she remained at risk of a worsening of her symptomatology if she were again exposed to her previous full range of duties. He also recommended a course of counselling, which she did not receive. 18. The defendant was aware of Dr Gertler's diagnosis and recommendations. 19. The plaintiff was on maternity leave for most of 2008. Following her return to work, she attended a number of traumatic incidents involving fatal motor vehicle accidents, and, on 3 July 2009, a house fire in which an elderly man died. She continued to suffer nightmares, flashbacks and distressing recollections about these events. 20. On 22 May 2009 the plaintiff received an email from Tony Long advising that she had been identified as an officer who had attended in excess of five critical incidents, and asking her to advise if there is any assistance that could be offered to her regarding her welfare. 21. On the same day, the plaintiff advised that she was receiving counselling outside work. 22. The plaintiff in fact received no counselling, and at no time advised Mr Long or anyone at TLLAC that she had not received counselling. 23. In February 2010, the plaintiff transferred to the Exhibits Section at Wyong Police Station, however, a number of incidents in that workplace had a deleterious effect on her during 2010. 24. On 16 November 2010 the plaintiff was involved in a motor vehicle accident in which she suffered injuries to her neck, shoulders and back, and was off work for three to four months. 25. When she returned to work at the Exhibits Office, the plaintiff's psychological condition did not improve. She suffered from nightmares and flashbacks which became more regular than they were six months before. At the end of May 2011, she had her second unsuccessful suicide attempt, following which, she saw Dr Abery, who referred her first to Mr Peters, psychologist, and then to Dr Murray, psychiatrist. She has remained under his care ever since.

[19]

Findings on the medical evidence

I make the following findings on the medical evidence which was summarised above: 1. Dr Avery diagnosed the plaintiff as suffering from PTSD and certified her unfit for work in August and September 2006. 2. The plaintiff had not been candid with either the police psychologist, Ms Cimino, nor the PMO, Dr Kirychenko, in disclosing her symptoms at the time of her examination by both of them. This was to ensure that she had her appointments returned to her. 3. Both Ms Cimino and Dr Kirychenko were aware that she suffered symptoms of PTSD, having attended numerous traumatic incidents. Both made recommendations for ongoing treatment to cope with both past and future traumatic events and mentoring in the workplace. 4. On 18 August 2006, Dr Abery confirmed her diagnosis of PTSD. 5. There is no issue that since June 2011 the plaintiff has suffered a chronic PTSD. She has remained under the care of Dr Abery, Dr Peters, and Dr Murray since that time. In October 2011, Dr Murray commented on the fact that the plaintiff kept her condition "a secret", because of the stigmatisation she perceived in the police force to psychological injuries. 6. I prefer the evidence of Dr Diamond to that of Professor Tennant for the following reasons: 1. Dr Diamond examined the plaintiff on 12 June 2015 and was qualified with reports from all of the plaintiff's treating doctors. 2. Dr Diamond's evidence as to his expertise in the area of police officers suffering psychological injury and workplace trauma was highly impressive. 3. Dr Diamond's evidence with respect to stigma in the Police Force was balanced, as was his evidence in respect of mentoring of police officers. 4. Both Dr Diamond and Professor Tennant agreed, at the time of the discharge from the police force, the plaintiff suffered chronic PTSD, a Major Depressive Disorder and a Substance Dependence Disorder. 5. Where Dr Diamond and Professor Tennant diverged, that is, on the question of the plaintiff's fitness to return to work in September 2006, Professor Tennant did not have the benefit of examining the plaintiff and taking a history from her. Rather, he relied on a selection of medical reports with which he was qualified. After meeting with Dr Diamond, he described Dr Abery's clinical notes as a "critical document" in formulating his opinion, in particular, Dr Abery's notes of her examination on 18 August 2006. 6. However, Professor Tennant's interpretation of those notes is not borne out by the actual notes of Dr Abery, which are set out at [277] above. I cannot accept his opinion that the plaintiff did not have a chronic PTSD with onset in 2006, continuing to the present time. Further, Professor Tennant had relied heavily on Mr Briggs's report, which was clearly flawed and detrimental to the plaintiff, and the reports of the PMO and police psychologist, which were both qualified by the recommendations they set out for further psychological treatment and mentoring. 7. Finally, Professor Tennant's report was replete with opinions which clearly were not medical opinions, amounted to advocating the defendant's case and could not be regarded as the impartial assistance required of an expert witness complying with the expert witness code of conduct pursuant to Pt 31 r 23 of the Uniform Civil Procedure Rules.
For these reasons, I prefer the evidence of Dr Diamond to that of Professor Tennant.

[20]

Defendant's submissions

The defendant relied on a written outline of submissions which first focussed on the FASOC filed on 6 December 2017 and relied on by the plaintiff. It was submitted that [7] therefore did not articulate a prospective duty of care with precision, including scope and content; that [8] "sets out an assortment of duties which are retrospective and also lack any precision in terms of the scope and content of the duty"; and the same is to be said of [9] of the FASOC. The defendant further submitted that [10] does not arise, as there is no private action available to bring a breach of statutory duty cause of action in respect of the two statutes identified.
The defendant further submitted that the pleading as to breach contained in [26] and [27] of the FASOC fell "foul" of what Leeming JA observed in State of New South Wales v Briggs [2016] NSWCA 344 at [66].
The defendant submitted that it was for the plaintiff to identify, by way of a specific focus on how police officers should have been instructed to perform their work, not upon what steps the police service should have taken to provide support for officers who had been exposed to traumatic incidents. The system of work needed to be identified, that should have been the system of work that was prescribed in response to the risk of psychiatric injury. The same issue arises in respect of [33] and [34] of the FASOC.
It was submitted that the pleadings do not articulate a cause of action, having regard to the statutory context in which police officers are appointed, and in accordance with how they are required to perform their duties. Thus, "in respect of the scope and duty of a prospective duty and an allegation prospectively made regarding breach, such allegations are absent from the pleadings in accordance with what is required".
The defendant's written submissions then paraphrase the evidence in the trial which has been summarised above. In respect of the plaintiff's evidence of the traumatic incidents she attended, it was noted that the defendant was not in a position to question or otherwise put in issue those attendances.
The defendant's written outline referred to the plaintiff's evidence concerning her receipt of the redacted Briggs report, in respect of her claim for workers compensation. It noted that she felt gutted after reading the report and, having identified the two officers who were suspicious of her claim, namely, Messrs Sorenson and Shields, she no longer trusted those two men.
The outline also referred to the evidence that in mid-2009 the plaintiff's marriage was under stress and that her husband had significant problems with his business. That business had to be liquidated due to unpaid tax and she became the director of a new company after other family members had declined. She also attended counselling with Relationships Australia with her husband regarding his gambling.
The defendant's written outline also referred to the evidence of the plaintiff receiving an email from Tony Long on 22 May 2009. She gave evidence she thought the email was impersonal and inappropriate.
The defendant submitted that in cross-examination the plaintiff gave evidence that she did not accurately tell the PMO and the police psychologist about her condition, and that she lied to the police psychologist. She gave evidence that there was a stigma about mental illness at the LLAC, and that she had never complained about Sergeant Greene, nor had she made any attempt to get another peer support officer to assist her. The plaintiff had maintained that she was unsuccessful in being transferred because Chief Inspector Julie Hill had a bias against women. In respect of her work in the Exhibits Section, she agreed that most of the bags were sealed, and that she took no time off in respect of any of the incidents that occurred while she worked there. The plaintiff also gave evidence that she had no drug and alcohol counselling.
The written outline also summarised the evidence called on behalf of the defendant. It noted inter alia, the evidence of Mr Sorenson saying that the contention that there was a stigma attached to mental health in the Police Force was "a total falsehood", and that the spreadsheet Ex H was developed to take early intervention to prevent PTSD. Rodney Peet gave extensive evidence of the support system at TLLAC, including peer support, EAP, Traumatic Incident Register and Response, Traumatic Incident Response, Command Management, the email system, the register and debrief after traumatic incidents. It was submitted that every duty officer at the end of their shift had to register any issue to do with welfare of officers and shift reports including the welfare section were updated from time to time. He also denied that there was any stigma attached to mental health issues, stating that it was readily discussed and that he had mental health issues himself.
The defendant referred to the evidence of Mr Winmill who had denied the conversation regarding the delivery by the plaintiff of a death message following the motor vehicle accident in which she had contended that he used the words "too bad". He produced his duty book which made references to welfare and was totally inconsistent with the plaintiff's version of events.
The defendant also referred to the evidence of Ms Boswell who sat on the monthly Injury Management Committee, and would monitor the register of officers on workers compensation. She gave evidence that all recommendations from the PMO would have been followed and that the monthly meetings also involved follow-up with supervisors, team leaders and duty officers who were responsible for checking the welfare of the injured worker.
The written outline concluded that: "On the threshold matters of duty and breach, they are not articulated and the defendant has demonstrated beyond argument that the system of work was more than reasonable and incapable of attack. Any psychiatric injuries sustained by the plaintiff could not have been due to a system of work proscribed by the defendant based on the evidence."
In his oral submissions, Counsel for the defendant rehearsed the defendant's submissions as to the deficiencies in pleading of the plaintiff's claim.
It was submitted that the delivery of the redacted Briggs report to the plaintiff by putting it in her pigeon hole at work was in compliance of the workers compensation insurer's obligations pursuant to the Workers Compensation Regulation 203, and was not the responsibility of the Commissioner of Police. It was submitted that her response to receiving that document was not reasonably foreseeable and the Commission could not be liable in accordance with the High Court's decision in Tame v New South Wales (2002) 211 CLR 317.
Counsel then referred to the Court of Appeal's decision in State of New South Wales v Briggs, supra, and Leeming JA's judgment at [66]. It was submitted that the FASOC did not identify with precision the system of work or the general or specific instruction that should have been given to the plaintiff, or a class of police officers of which the plaintiff was a member, to engage breach. Rather, by proper reading the FASOC focussed entirely on the "steps the Police Service should have taken to provide support for officers". It was described as a retrospective document.
The defendant conceded that it owed a duty to the plaintiff to exercise reasonable care to guard against the foreseeable risk of injury and unnecessary risk of injury generally. However, the scope and content of that duty in the case of a psychiatric injury, "were everything". It was submitted that the particulars of negligence pleaded in the FASOC were similar to those pleaded in Briggs, supra. An important policy issue in psychiatric claims was the privacy of the individual as outlined in Hegarty v Queensland Ambulance Service [2007] QCA 366, and also by the High Court in Koehler v Cerebos (2005) 222 CLR 44; [2005] HCA 15. Hegarty was critical to understanding how far an employer can go to advise an employee, particularly a police officer, to seek psychiatric, psychological or counselling assistance.
In the alternative, it was submitted that if the court was satisfied as to the scope and content of the duty of care, breach was to be determined by what was reasonable. It was submitted that the system of work employed by the TLLAC was reasonable. The defendant submitted that the TLLAC was "fanatical about mental health" and that two of the men responsible for administering its response to officers attending traumatic events, were men who had suffered mental health issues themselves, namely, Mr Winmill and Mr Peet.
It was further submitted that for the plaintiff to be successful, she would need to satisfy the court that there was an endemic stigma in the workplace about mental health that explained why the plaintiff would not feel comfortable in coming forward to her superior officers. It was contradicted by the plaintiff's evidence that she told Sergeant Trench of her condition on 18 August 2006, and he had advised her to go home, and to seek medical treatment. Following that, the plaintiff had lodged a formal notification document.
It was submitted that the defendant had devised its response system as demonstrated in Ex H, because there were so many officers going off on sick leave because of stress or emotionally traumatic issues.
It was submitted that by the time the plaintiff submitted a claim for workers compensation, there was no longer any stigma because the plaintiff had been disclosing her PTSD condition. Whilst it was conceded that there were commands within New South Wales that such stigma has occurred, it did not occur in the TLLAC.
The defendant submitted that the court would find that based on the evidence of Sergeant Greene, she was not the appointed peer support officer, nor was she the plaintiff's mentor. The defendant did not submit that the plaintiff was being untruthful on that issue.
The defendant submitted that Dr Gertler assessed the plaintiff as being a person "whose sleep had improved, her level of anxiety had decreased and her mood improved". For the period the subject of her workers compensation claim in 2006, Dr Gertler opined that it more likely than not that the exposure to trauma caused her PTSD. However, she was on restrictions at work which demonstrates that the defendant was exercising reasonable care, namely, by restricting her duties and accepting that she had an emotional illness, "be it PTSD or anything else". It was submitted that there was nothing more the defendant should have been required to do in those circumstances.
With respect to Dr Gertler's recommendation for further counselling, it was submitted on behalf of the defendant that the defendant did not know if those counselling sessions took place. The plaintiff had not asked the TLLAC to pay for a private psychologist and there was an absence of notice for the defendant that she required further treatment at that time
It was submitted that Dr Gertler's report could not be relied on by the plaintiff to demonstrate, that having being diagnosed with PTSD in 2007, that diagnosis was still current in 2011.
The defendant submitted that following her return to work after maternity leave in 2008, the plaintiff was able to undertake police work and was at full capacity to do so. Her applications for transfer were unsuccessful, not because of bias towards her gender, but because others were appointed on a merit based review.
The defendant submitted that following the plaintiff's attendance on a double fatality in early 2009, she did not disclose to the Police Force that she was suffering nightmares and flashbacks. She took no time off work and there was no notice to the defendant. Rather, the plaintiff was internalising that her nightmares and flashbacks became more severe.
On the issue of the plaintiff's matrimonial problems, the chronic gambling of her husband and his business problems, counsel conceded that the principles to be applied in respect of the impact of those matters were in accordance with the High Court's decision in Watts v Rake [1960] HCA 58; (1960) 108 CLR 148, and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.
In relation to the email from Tony Long dated 22 May 2009, the plaintiff had responded in terms, "I'm seeking counselling outside of work. Thanks." There was no evidence tendered on behalf of the plaintiff as to what counselling treatment was provided or by whom. It was submitted that this was an express statement to the TLLAC that the plaintiff was getting counselling outside of work and no further intervention was required. Mr Long had written back and stated: "Thanks Melanie, if the command can assist you at all, please do not hesitate to ask." It was submitted that was an appropriate response, and a proper exercise of reasonable care for the plaintiff's mental health. This evidence also tended to contradict the plaintiff's evidence as to stigma attached to mental health problems at the command.
In relation to the disputed conversation with Inspector Winmill, it was submitted that Mr Winmill had made a contemporaneous note of what happened at the time, which was incontrovertible. The plaintiff's evidence to the contrary, therefore was untrue.
The defendant further submitted that the transfer of the plaintiff to the exhibits Office in 2010 was an appropriate response from the defendant because it had been tried and tested as an appropriate place for people with psychological injury to work, relying on the evidence of Mr Peet. She took no time off work there, and kept working there until November 2010. It was submitted that it was not reasonably foreseeable that a person would suffer from an aggravation or exacerbation of a psychiatric injury as a result of any of the incidents that occurred during her work there. The type of incidents of which she gave evidence, really amounted to mistakes made by police officers in preserving evidence as exhibits.
Counsel also referred to the serious motor vehicle accident in which the plaintiff was injured in 2010, followed by her first suicide attempt. It was submitted that what was significant is that she did not tell Dr Abery about that incident. Her explanation was that she thought she might be taken away from her children. Following her motor vehicle accident, she returned to work at Cessnock, but in April 2011 returned to the exhibits unit at Wyong. Her second suicide attempt occurred on 30 May or 1 June 2011, following which, Dr Abery referred her first to Mr Roger Peters, and then to Dr Murray.
The defendant also relied on the six monthly debriefing questionnaire filled out by the plaintiff in respect of her street level operative work in which she acknowledged the services that were available to police officers undertaking that work. It was submitted that those documents were filled out on a regular basis by the plaintiff, and her evidence in relation to the availability of those services, including that of Police Chaplains, was unconvincing.
The defendant submitted that when the plaintiff returned from a period of leave in September 2006, all of the outward signs indicated that she was no longer unwell and that her symptomatology was substantially diminished. It was submitted on behalf of the defendant that she lied to the PMO, Dr Kirychenko, because she wanted to get her appointments back. It was submitted that the history she gave both Dr Kirychenko and Ms Cimino was fundamentally flawed history, because she told both that her symptoms were subsiding. It was submitted had they been told the truth then, "this case probably never ever would have occurred because it would have been the case that those doctors obviously would have had a different treatment regime for her". It was submitted that the defendant, in the exercise of reasonable care, could not second guess the plaintiff if it was not told the truth. In any event, it was submitted that the defendant followed the recommendations of the PMO and the psychiatrist "to the hilt". They did so by Inspector Sorenson and Chief Inspector Peet monitoring the plaintiff by seeing her on every single shift. Further, she did not need counselling as she was saying that she wanted to be off restricted duties and put back on general duties.
The defendant submitted that the plaintiff was evasive in her evidence about the bankruptcy of her husband. It was submitted that those financial difficulties suffered by her were not trivial, and would have been causative of some emotional trauma to the plaintiff. The following submission was made: "I can't put the submission to your Honour that those matters alone were the cause of the plaintiff's problems in terms of her inability to work, but what we do say is that those matters need to be taken into account in determining causation, because even if what our learned friends say ought to have happened, the plaintiff would still be suffering from the trauma of her personal life as opposed to what happened with the police, on many different levels, and they are identified really by Ms De Riviere."
Counsel agreed, however, that modern causative theory meant that the plaintiff only had to establish her work trauma as a contributing factor to establish causation.
On the question of damages, counsel for the defendant submitted it was a case that warranted a buffer in terms of the plaintiff's loss of earning capacity. It was submitted that the plaintiff had a significant "earning capacity", however, it was unknown as to what degree that had been diminished by her psychiatric injuries as opposed to alcohol. It was conceded there was no question that she could not go back to the Police Force.
The defendant accepted that the plaintiff was entitled to a past claim for economic loss up until the time of trial, but thereafter she would be entitled to "a very modest buffer".

[21]

The plaintiff's submissions

The plaintiff, by her learned Senior Counsel, provided a detailed written outline of submissions. Following lodgement of her claim for psychological injury in 2006, the plaintiff was referred to the PMO and police psychologist who made recommendations in relation to her future duties. Further, the defendant came into possession of the report of Dr Gertler, psychiatrist, obtained for the purposes of her workers compensation claim. Accordingly, it was submitted that in 2006/2007, the defendant had actual knowledge of the plaintiff's vulnerability for further psychological injury and was aware that it should monitor her ongoing mental health. It was submitted: "By failing to fully adopt the recommendations of the PMO, the Police Psychology Unit and Dr Gertler, the defendant breached its duty of care and the plaintiff was further exposed to traumatic events, which aggravated and entrenched her PTSD and caused her ultimate incapacity for work".
The plaintiff then outlined salient facts, which are reflected in the findings of fact outlined above.
Under the heading "Duty of Care", the plaintiff submitted that the defendant owed her a non-delegable duty to "take reasonable care to avoid exposing her to unnecessary risk of injury". It was submitted that in principle, there was no reason why psychological injury should be treated differently to physical injury. The risk of psychological injury is a consequence of exposure to traumatic events in the course of general duties police work was clearly foreseeable, relying on Reeves v State of New South Wales [2010] NSWSC 611, per Schmidt J at [329] to [337]. The TLLAC obviously accepted the foreseeability of psychological injury arising from exposure to traumatic circumstances as it was its primary motivation in establishing a database to record each officer's exposure to traumatic events.
The plaintiff submitted as follows: "23 In circumstances where: (a) the plaintiff had been absent from her employment as a consequence of a claimed psychological injury in 2006; and (b) the nature of the psychological injury had been confirmed by the PMO and police psychologist as being a consequence of her exposure to 'very traumatic cases'; and (c) the PMO had recommended that the defendant take a number of future precautions including monitoring, mentoring, a course of counselling and re-assessment; and (d) Dr. Gertler had reiterated the diagnosis and cautioned against the plaintiff returning to General Duties, the defendant knew that the plaintiff was vulnerable to further psychological injury and had a duty to reasonably respond to the risk of that further injury occurring. 24 The plaintiffs heightened vulnerability was relevant to the content of the defendant's duty of care: Perre v Apand Pty Ltd (1997) 198 CLR 180; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 per McHugh J at [100]. 25 The scope of the defendant's duty of care included taking active measures to avoid the risk of further psychological injury to the plaintiff including: (a) arranging a course of counselling as recommended by the PMO; (b) referring the plaintiff back to the PMO or police psychologist if there was a change or perceived change in her condition (eg as exemplified by excessive sick leave); (c) ensuring that the plaintiff continued working in a 'more controlled environment' and not exposed to full General Duties (as recommended by Dr. Gertler); (d) arranging for the plaintiff to be psychologically evaluated for her fitness to return to General Duties before requiring her to perform such duties; (e) making positive enquiry of the plaintiff as to her welfare in the light of her excessive sick leave, multiple transfer applications and frank admission that she 'wanted to get off the truck'. (f) accurately recording the number of traumatic events to which the plaintiff was exposed and enforcing its own SOP which included specific personal welfare discussions when the plaintiff reached the '5+' level in May 2009. 26 Given the plaintiffs known vulnerability, considerations of her privacy and autonomy were outweighed by the potential risk she posed to the public as an armed operational police officer and to herself in respect of further injury. As Leeming JA observed in State of NSW v Briggs [2016] NSWCA 344 at [177]: 'Obviously, the considerations of privacy and autonomy identified by Keane JA in Hegarty apply with much less force where an employee or officer has already supplied medical certificates: see Box Hill Institute of TAFE v Johnson [2015] VSCA 245 at [67] to [69].'"
Under the heading "Breach of Duty", the plaintiff submitted that none of the steps enumerated in [25] of its submissions outline above were carried out by the defendant. Those steps were neither unreasonable nor impractical. Further, the traumatic injury database in relation to the plaintiff was incomplete, and did not follow the defendant's standard operating procedures. The defendant's own system required the defendant to "discuss welfare with officer and explore need for immediate provision of welfare services". That did not happen.
It was submitted that the email from Inspector Long dated 22 May 2009 was "clearly a pro-forma document that did not comply with the SOP".
It was submitted that had the recommendations of the PMO and Dr Gertler been followed, the plaintiff should not have been required to attend traumatic incidents following her return to duty in December 2008. This clearly constituted a breach of the relevant duty of care - see State of New South Wales v Doherty [2011] NSWCA 225 at [65] - [73].
It was submitted that the evidence of Dr Diamond provided significant support for the plaintiff's case as to breach.
Under the heading "Causation", it was submitted that the defendant's failure to take heed of Dr Gertler's opinion and that of the PMO, meant that the plaintiff was designated unrestricted general duties without any psychological evaluation of her fitness to do so, or any monitoring of her fitness thereafter. But for that negligence, she would have retained a capacity to work on permanent restricted duties within the New South Wales Police Force.
It was submitted that following her identification as an officer with five or more traumatic incidents, a mere email enquiry was inadequate. It was submitted that it was likely that a discussion with the plaintiff would have resulted in her obtaining appropriate psychological treatment in May 2009. Left to her own devices, the plaintiff would not have gone back to EAP, however, if directed by the command to do so, "she probably would have done it".
It was submitted that her attendances following her return to work materially contributed to her psychological condition. Had the plaintiff received timely and effective psychological treatment before mid-2009, the impact of her exposure to traumatic events would have been significantly lessened. The failure by the defendant to initiate such early intervention therefore materially contributed to the plaintiff's psychological injury.
On the issue of damages, the plaintiff tendered the following Schedule of Damages: Past Economic Loss Past wage loss: $455,198.00 Past loss of superannuation: $455,196 x 11% $ 50,072.00 $535,270.00 Fox v Wood $30,000.00 Total claim for Past Economic Loss Future Loss of Earning Capacity Future loss of earnings: Assumptions - (1) Allow three years total loss of earnings to permit some degree of recovery and retraining. $180,318.00 (2) Therreafter assume a residual earning capacity of about $300 net per week. $602,587.00 (3) The Plaintiff would likely have retired from Police Service at age 60. $105,692.00 Total loss of $1,457 net per week for three years (145.6 less 15%) $50,000.00 Loss of $1,157 net per week for 17 years (602.8) defer three years (0.864) less 15% Future Superannuation loss $782,905 x 13.75% Buffer for loss of prospect of promotion (including superannuation): Total claim for Future Loss of Earning Capacity $ 935,597.00 TOTAL $1,470,867.00

[22]

The plaintiff's last day of active duty was 2 June 2011. At the time of her medical discharge on 7 June 2012, she had attained the rank of Senior Constable. She is now 40 years old, and since her medical discharge she had been unemployed.
It was submitted that the preponderance of medical opinion is that the plaintiff has been totally incapacitated for work. She remains under the care of Dr Murray. Further, Dr Diamond, in his report dated 1 September 2015, was of the opinion that for all intents and purposes, the plaintiff was unemployable, and no competing medical evidence had been relied on by the defendant.
It was submitted that at some time in the future the plaintiff may make a partial recovery, and be able to pursue some part-time employment on a limited basis. However, the report relied on by the defendant from Pro-Care proceeded on many flawed assumptions as to the plaintiff's work capacity and ignored the medical evidence. However, in her Schedule of Damages, the plaintiff had made allowance for the possibility of a limited recovery of capacity sometime in the future, otherwise, the Schedule of Damages was self-explanatory.
In his oral submissions, learned Senior Counsel for the plaintiff distinguished the Court of Appeal's decision in New South Wales v Briggs, supra, on the basis that the plaintiff's case in Briggs focussed on a period of employment as a police officer over a period of eight years, during which he suffered a psychological injury which was unknown to him and to others in the Police Force. Here, there was a substantially different consideration, where the plaintiff had been identified as being psychologically ill, and had returned to work on highly restricted duties.
It was submitted that the plaintiff's FASOC appropriately pleaded the plaintiff's case at [8] and [9] which were entirely in accord with the considerations to which Leeming JA referred in Briggs. Further, [8(a) and (b)] and [9(e)] had been admitted by the defendant.
It was submitted that the police evidence here had clearly acknowledged the scope of duty as pleaded, and that what happened to the plaintiff post the diagnosis PTSD in August 2006 amounted to clear evidence of breach of duty and it was a causative breach.
Learned Senior Counsel then rehearsed the chronological order of events and the competing inferences available from the expert medical evidence, which are referred to below.
Learned Senior Counsel submitted on behalf of the plaintiff that the relevance of the evidence concerning the delivery of the redacted report of Mr Briggs was that it made entirely explicable the plaintiff's difficulty entrusting some of her superior officers, and in particular, Mr Sorenson and Sergeant Shiels. He also refuted the contention put on behalf of the defendant that the plaintiff was in fact being monitored by Inspectors Sorenson and Peet.
The plaintiff submitted having returned to general duties at the end of 2008, and having been exposed in the space of six months to not less than five traumatic incidents, no enquiry was ever made of her as to her psychological condition. Regarding the reliance by the defendant on questionnaires completed by the plaintiff following her involvement as a street level operative, the plaintiff submitted that she worked part-time in such operations, the first questionnaire she completed in April 2006, and the second on 28 September 2006, two days after she returned to work on restricted duties. The third questionnaire was completed on 3 April 2007, prior to her commencing station duties. She had had no deployments in the previous six months.
On the question of a stigma being felt by police officers raising mental health problems, it was submitted that the evidence of the plaintiff and Ms Raper would be preferred to that of their senior officers, Mr Sorenson and Mr Peet. Inspector Peet gave no evidence that he spoke to the plaintiff after any of the traumatic incidents she attended. Inspector Winmill was never in charge of her team, and he was not ever the plaintiff's direct supervisor.
The plaintiff submitted that the Court of Appeal's decision in State of New South Wales v Doherty, supra, supported the plaintiff's case on causation, notwithstanding that it was determined pursuant to the Civil Liability Act 2002. It was submitted the reliance of the defendant upon the fact that the plaintiff was seeing a GP, was not sufficient to discharge its duty to the plaintiff, knowing that the plaintiff had suffered psychological injury and was then being re-exposed to traumatic events.
In that case, a finding of contributory negligence was made against the plaintiff because he was an experienced police officer with knowledge in relation to psychological matters. It was submitted that the plaintiff was getting better from her PTSD when she returned to work from maternity leave, however, by returning her to general duties and exposing her to further traumatic incidents, the defendant breached its duty towards her.

[25]

Legal principles

It is common ground that the plaintiff's claim is a work injuries damages claim for an award of modified common-law damages pursuant to part 5 of the Workers Compensation Act 1987 and consequently, the Civil Liability Act 2002 does not apply.
It was also common ground that while a police officer such as the plaintiff is not an "employee", given the statutory nature of the office, the scope of any duty of care or breach thereof, must accommodate the statutory provisions governing police officers.
In State of New South Wales V Briggs, supra, Leeming JA, under the heading, "Duty must be formulated prospectively", stated as follows: "[64] The fact that Mr Briggs' case was wholly founded in negligence meant that the strictures from the High Court concerning the need to formulate scope of duty with requisite precision, and to do so prospectively, applied. Most employees will only rarely face the traumatic situations which are part and parcel of the duties of a police officer, and most employees do not commit an offence if they neglect to obey lawful orders or fail to carry out any lawful duty. Senior Counsel appearing for the State, who had not appeared at trial, emphasised the passages from Fahy reproduced below, which insisted on breach being assessed in light of the postulated system that should, on the plaintiff's case, have been devised or the general instruction which should have been given. First, Gummow and Hayne JJ said in Fahy at [27]: "Police officers are required to undertake tasks of a kind that few, if any, commercial employers could ask of their employees. Police officers must confront death, injury and destruction. It is they who must waken the sleeping household to tell them of the sudden death or serious injury of another. Ms Fahy herself spoke of incidents she had attended in three years of police sercive: a fatal plane crash, a fatal industrial accident, numerous fatal car accidents, overdoses and hangings. And as well as confronting the consequences of folly and accident, police officers must confront the wrongdoer bent upon harm to both the police and members of the public. It is tasks of these kinds that are encapsulated (s 6(2)(a), 3(b)) by the anodyne description of a function of the Police Service as being "the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way'. And it is tasks of these kinds that constitute the duties of a police officer and may be the subject of lawful orders to a police officer. To neglect or refuse either to obey those orders or to carry out those duties was a criminal offence. …But the [safe system of work] that was devised had to be one which did not detract from the effectuation of the statutory purposes and functions of the Police Service. Examination of the facts and arguments in this case will reveal that too little attention has hitherto been given to these considerations. [65] Gummow and Hayne JJ returned to the point … at [71] - [72]: "It is the nature of that work that entails that the risk of psychiatric injury, occasioned by traumatic incidents, cannot be eliminated. It cannot be eliminated because police officers must confront traumatic incidents in the course of their duties. … To perform the tasks that society expects of police, as those tasks were expressed in the Police Service Act, police officers must obey the lawful orders given by their superiors and must carry out their lawful duties. That is why to neglect or refuse either to obey a lawful order or to carry out any lawful duty is a criminal offence. Once the content of the postulated general instruction [namely, for officers to work in pairs and remain together where possible] is identified and set against the requirements of the Police Service Act it is evident that not to give and enforce compliance with such an instruction was not a breach of duty. That is not because the risks of psychiatric injury to police officers were and are not reasonably foreseeable. They are. The response that Shirt requires a court to identify when considering breach of duty is a response which must have regard, in this case, to the responsibilities cast on the Police Service and on individual police officers. They are the 'other conflicting responsibilities' of which Mason J spoke in Shirt and which were to be taken into account in identifying the reasonable response to the risk. In particular, obedience to lawful orders, and the carrying out of lawful duties, is of primary and determinative significance. Why that is so is illustrated by the facts of this case. [66] The need to identify a general instruction which should have been given was put even more clearly by Gummow and Hayne JJ at [62]: "The State submitted that the relevant risk to consider in determining whether Ms Fahy had established that there had been a breach of duty to provide a safe system of work was whether 'a police officer might suffer a psychiatric injury if that officer's partner did not remain to provide support whilst the officer was exposed to trauma whilst assisting a doctor'. For the reasons given earlier, that formulates the relevant risk from the wrong perspective. It seeks to ask, in effect, whether the particular mechanism which led to the injury of which the plaintiff complained was a foreseeable risk. But breach of duty requires consideration of whether the defendant's conduct (which it is to be assumed is identified in this case as the formulation of systems of work for police officers) involved a risk of injury to the plaintiff. And here, there could be no doubt that police work involved a risk of psychiatric injury to police officers. The inquiry that was then to be undertaken was "what a reasonable man would do by way of response to the risk'. The focus must fall upon how police officers should have been instructed to perform their work, not upon what steps the Police Service should have taken to provide support for officers who had been exposed to traumatic incidents. It is necessary, therefore, to identify the system of work that should have been prescribed in response to the risk of psychiatric injury.'"
It is upon this passage the defendant relies for its submission that the plaintiff here has not properly pleaded the scope and content of the duty of care owed by it to the plaintiff. The appeal in Briggs was upheld on the basis that the duty of care and breach thereof were formulated by way of particulars which, in the main, were, in substance, omissions. There was hence no formulation of any general instruction which should have been given within the New South Wales Police Force in order to address the foreseeable risk of mental illness. The particulars omitted any articulation as to how assessment or monitoring was to be effectively carried out. The trial judge had erred by considering what measures could have been taken into account to prevent the injury to the plaintiff, and then taking those measures as a basis for determining the relevant duty, including its scope and content.
I am not persuaded that the pleading of the plaintiff in her FASOC contains the same error. Having pleaded the duty of care generally in [7] thereof, the plaintiff set out in [8] and [9] (see [2] above) the scope and content of the duty.
This was not a case where the system of work employed by the police service, as explained by Leeming JA, was in issue. It was conceded by the defendant that the plaintiff was a committed police officer attending to her duties diligently from the time of her attestation in 2003, until she suffered a psychological injury in 2006.
Further, the defendant accepted, within the TLLAC and at all relevant times, that it was reasonably foreseeable that police officers employed there would suffer psychological injury as a result of exposure to traumatic incidents, and there was no issue in this case that the command established a system of identification of officers at risk, by reference to the number of such incidences attended within a two-year period. On that basis, the reasoning of Leeming JA as set out above, does not apply here. Nor could it be argued that the duty of care has not been formulated prospectively,
Leeming JA went on to refer to the Queensland Court of Appeal decision in Hegarty, supra, and in particular Keane JA's judgement at [41] where his Honour (as he then was) said: "[41] … It must be said immediately that, while an employer owes the same duty to exercise reasonable care for the mental health of an employee as it has for the employees' physical well-being, special difficulties may attend the proof of cases of negligent infliction of psychiatric injury. In such cases, the risk of injury may be less apparent than in cases of physical injury. Whether risk is perceptible at all may in the end depend on the vagaries and ambiguities of human expression and comprehension. … Whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be tendered with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which the employee works. … [43] The area of debate in the present case concerned the extent to which the defendant was duty-bound to ensure that its superior officers should intervene with individual ambulance officers in relation to possible signs of deterioration in their mental health. The private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employee's duty in this respect, must be acknowledged as important considerations. The dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty asserted by the plaintiff. Issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating the plaintiff's problems. [44] … The plaintiff's case means that the employee must be concerned, not only with non-performance by the employee as an employee, but also of possible episodes of unhappiness in the employee's private life. It is not self‑evidently necessary or desirable that employees' private lives should be subject to an employer's scrutiny."
This passage is pertinent here, as is what his Honour said at [45] and [46] as follows: "[45] Issues didn't necessarily arise, however, as to their identification of a sufficient basis for the making of a suggestion by the defendant that the plaintiff seeks psychological assessment and treatment. The resolution of this issue is fraught with difficulties peculiar to cases of psychiatric injury. In cases of apprehended psychiatric injury, unlike cases concerned with the amelioration of physical risk in the workplace, important values of human dignity, autonomy and privacy are involved in the formulation of a reasonable system of identification of psychiatric problems which may warrant an employer's intervention in the making of a decision to intervene. The employee may not welcome intrusion by a supervisor, which suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought, especially if those problems are having no adverse effect upon the employee's performance of his or her duties at work. [46] Employees may well regard such an intrusion as an invasion of privacy. Employees may rightly regard such an intrusion as a gross impertinence by a fellow employee, even one who is in a supervisory position. An employee is known to be at risk of psychiatric injury, prospects of promotion may be adversely affected and questions may arise as to the entitlement, or even obligation, of the employer to terminate the employment. Employees who are ambitious, and eager for promotion, and whose signs of dysfunction might equally be signs of frustrated ambition, might rightly be deeply resentful of suggestions which reflect an adverse assessment of the employee's ability or performance and prospects of promotion. Such employees can be expected to pursue such remedies as may be available for their grievance over the intrusion. Dissatisfaction or resentments of this kind may give rise to industrial relations issues for the employer, as well as defamation issues for other employees. A conclusion that an employee has acted unreasonably in failing to recommend psychological assessment and treatment cannot be made without recognising that the employer's decision must be made in a social, economic and legal context which includes these considerations."
I have had regard to these remarks in determining the issues of breach and causation below.

[26]

Did the Defendant breach its duty of care?

In these proceedings, it was not the system of work employed by the TLLAC which informs the scope and content of the duty of care owed by the New South Wales Police Force to the plaintiff. Rather, the plaintiff's case as particularised, relies on the following failures of the defendant to establish breach of its duty to avoid psychiatric injury to the plaintiff as a result of that system of work, once the plaintiff had been identified as an officer at risk, namely: 1. To follow the PMO and that of the police psychologist's advice in 2006 to ensure the plaintiff undertook a course of psychological counselling, and to appoint a mutually acceptable officer to mentor and monitor the plaintiff's welfare; 2. The failure in 2009 to follow up the TLLAC's own reporting system, and its standard operating procedure, having identified the plaintiff as an officer who had attended five or more critical incidents.
In Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, Mason J said at [47]: "[47] In deciding whether there has been a breach of duty of care, the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have seen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. The answer being in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
The response that Shirt requires a court to identify in considering breach of duty, must have regard to the responsibilities cast on the Police Service and on individual police officers, as set out in the judgment of Gummow and Hayne JJ in Fahy above, in Leeming JA's judgment at [65].
The breach relied upon by the plaintiff is the failure of the defendant to implement the recommendations made by the police psychologist and the PMO who cleared the plaintiff to return to full general duties (and thus regain her appointments). Those recommendations included a course of psychological counselling on a prediction that the plaintiff would be exposed to further traumatic cases to teach her strategies to deal with her past and future traumatic events, together with the appointment of a mutually acceptable officer to mentor and monitor her welfare and be a source of support. The evidence establishes that neither occurred.
The determination of the reasonableness or otherwise of the defendant's response must be determined in the context of what thereafter occurred.
The plaintiff had lied to the PMO by understating her psychological problems, in order to get her appointments back. This was described as being "result driven". She also would not have gone to the EAP at this time, unless directed to do so, and there was no power to direct her to do so.
The plaintiff continued working in general duties from October 2006 until she fell pregnant in May 2007. During that period, she did attend to at least two traumatic incidents, however, she sought no psychological assistance following each. In June 2007 she was assigned to station duties until December 2007, when she went on maternity leave. Her baby was born in January 2008, and she remained on maternity leave until December 2008.
In respect of a three-week period of leave taken by the plaintiff prior to her wedding in 2006, the plaintiff made a claim for workers compensation at the behest of her team leader. It was that claim that led to the investigation by the psychologist, Mr Briggs, who was responsible for the adverse assessment report delivered to the plaintiff at work, with the names of Inspector Sorenson and Sergeant Shiels redacted. The plaintiff does not rely on the receipt of that report as giving rise to a cause of action in negligence, nor could she do so following the High Court's decision in Tame, supra. The plaintiff relies on that incident rather, as the genesis of her mistrust of the two supervising officers who provided adverse reports to the investigator.
It was the plaintiff's decision to return to full-time duties in 2009 and it was in the course of those duties that she attended a number of traumatic incidents in the first half of 2009. While she made a number of applications to transfer away from general duties, none of her applications were successful.
In May 2009, she had been identified as an officer who had attended in excess of five critical incidents whilst working at TLLAC in accordance with the database implemented by the command. She received the email from Tony Long dated 22 May 2009 advising her that she had been identified as an officer at risk and asking whether any assistance could be offered by the command regarding her welfare and support. The email made it clear that its intent was to ensure that "you are aware of the assistance available" and it noted in capitals that "all correspondence would be treated confidentially".
The plaintiff responded to that email by a reply email stating: "I'm seeking counselling outside of work."
I accept her evidence that she made numerous appointments to a counselling service called AusPsych, but did not attend. At no time did she advise Mr Long or anyone else at the command that she was not in fact seeking counselling. Nor did she seek any medical treatment for her psychological problems until June 2011.
The plaintiff continued to work in general duties throughout 2009 and again attended a number of traumatic incidents during that time. It was in mid-2009 that her marriage came under stress and her husband disclosed his gambling problems and the financial problems concerning his company.
I accept that the plaintiff continued to suffer nightmares and flashbacks as a result of her exposure to traumatic incidents during 2009, and it was at this time that she was taking sick leave in excess of her entitlements, and was spoken to in relation to that in late 2009. At that time, she made no disclosure of psychological injury as a result of her police work.
In 2010 the plaintiff successfully applied for and was transferred to the Exhibits Office at Wyong. I accept that a number of incidents occurred in carrying out those duties which caused her distress, however, the plaintiff does not rely on those matters as establishing breach of the defendant's duty of care.
In November 2010 the plaintiff was involved in a motor vehicle accident in which she received serious injuries to her neck shoulders and back as a result of which she was off work for up to 4 months. It was while she was off work that she first attempted to take her life, an event that she told no one about. She returned to work at the Wyong Exhibits Office on a part-time basis in early 2011 and it was after her second unsuccessful suicide attempt that she saw Dr Abery, who certified her as unfit for work.
It is clear that the plaintiff did not make a candid disclosure as to the extent of her psychological problems to the PMO or to the police psychologist in 2006. I accept the submission made on her behalf that that was "result driven", namely, she wanted her appointments back and to return to full-time general duties work. Notwithstanding the recommendations made by both the psychologist and the PMO, the defendant was not aware of the full extent of her psychological condition at that time.
I also accept on the balance of probabilities, that from the plaintiff's perspective, and that of other low ranked officers in the Police Force, there was a stigma attached to disclosing mental health problems. Such disclosure could affect both prospects of promotion and relationships with other officers with whom they had to work. However, the plaintiff had disclosed psychological problems in her workers compensation application in 2006, her claim for closed period workers compensation had ultimately been accepted and she had subsequently been certified as fit to return to full duties by the PMO. At no time thereafter did she report psychological problems arising from her work as a police officer.
I do not accept the submission made on behalf of the plaintiff that, had the recommendations of the PMO and Dr Gertler been followed, the plaintiff should not have been required to attend traumatic incidents following her return to duty in December 2008, and that this clearly constituted a breach of the relevant duty of care, relying on State of New South Wales v Doherty, supra (see [345] above). In State of New South Wales v Doherty the plaintiff had worked for over 10 years in full time duties with the Forensic Services Group, during which time, he was required to attend numerous crime scenes involving death and/or serious injury, including numerous murder scenes. When he commenced to experience psychological symptoms, including flashbacks, he did not report them to the Police Service. He was, however, a Peer Support Officer, and at a time when he was suffering symptoms, an FSG Welfare Committee was created to better organise the welfare of FSG staff and he was part of that group. Thereafter, whenever he was tested or assessed, he under-reported symptoms he was suffering. It was not until after 16 years of working for the FSG he notified them as suffering PTSD, following attendance at multiple traumatic incidents.
The trial judge found that the recommended system of annual reviews for each crime scene investigator, by way of an interview and psychometric testing, was a reasonable response to the high risk of psychological injury to them. Without an annual review by way of an interview with a psychologist, the systems which the Police Force had in place were not a reasonable response to the high risk of psychological injury. That was one way in which the defendant breached its duty of care to the plaintiff. Another way was by failing to act upon indications of under‑reporting following an assessment carried out on the plaintiff. It was held that a reasonable person in the position of the Police Force would have ensured that the plaintiff was clinically interviewed by a psychologist and therefore the defendant was negligent.
Those findings were upheld by the Court of Appeal. Hodgson JA (with whom Whealy JA and Handley AJA agreed) held that there was no error by the trial judge in so finding. At [69] he said: "In my opinion, no error has been demonstrated in the findings of breach by the primary judge. In my opinion, the primary judge was correct to hold that SNSW should have foreseen a significant risk of psychological injury to officers involved in crime scene investigation; that it should have foreseen that this psychological injury could be very serious indeed; and that a reasonable response required a high standard of monitoring such officers, which took into account that some of them would be likely to be seeking to disregard or minimise any symptoms in order to continue to fulfil their commitments."
That was not the case here. In September 2006 the plaintiff had had a short period of time off work in addition to the annual leave she took for her wedding ceremony. She was then certified fit to return to work by the PMO, who made recommendations for her ongoing employment as a police officer. The history outlined above, however, records that she worked on general duties for a relatively short period of time before she was allocated station duties as a result of her pregnancy in mid-2007. She was on maternity leave throughout 2008. During that period, there was no reason for the recommendations of the PMO or the police psychologist to be implemented. Following her return to work, the plaintiff chose to return to general duties police work. By the end of 2008, any need for monitoring, mentoring or counselling for the plaintiff had long since passed.
The plaintiff was aware at all times of the support services available, including the EAP, the peer support and Police Chaplain, but at no time sought out those services. Finally, when identified as an officer at risk in 2009, and having received Mr Long's email, the plaintiff responded that she was seeking counselling outside work. Once she transferred to the Exhibits Office in 2010, notwithstanding that she suffered an exacerbation of her symptoms on occasions, she was no longer required to attend traumatic incidents.
Having regard to that history, I find that it was a reasonable response throughout that period for the defendant to do nothing in relation to the alleged breach identified by the plaintiff, i.e. the failure to implement the recommendations made by the PMO and the police psychologist in 2006. I therefore find that the plaintiff has failed to establish a breach of the duty of care owed to her. The defendant had no way of knowing in 2009 and 2010 that the plaintiff continued to suffer a psychological reaction to her exposure to traumatic incidents. The report of Dr Gertler in 2007 advised that her symptoms were diminishing, and when identified as being at risk in May 2009, the plaintiff responded by advising that she was receiving counselling outside of work. The defendant's system for identifying police officers at risk at that time was a reasonable response, and in the circumstances here, it could have done nothing more by way of response to that risk. Any "meeting" with the plaintiff would have provoked no further disclosure of her problems at work.
Further, the evidence established that the plaintiff was suffering personal problems outside of her workplace. Her marriage had failed and her husband's business failure led to financial pressures being placed on her. For the supervising officers employed by the TLLAC to intervene in respect of those matters would give rise to the difficulties highlighted by Keane JA in Hegarty as set out above. The plaintiff has therefore failed to establish that the defendant has breached its duty of care to her, and there will be a verdict for the defendant. Having regard to that conclusion, the need to deal with the defendant's pleading of contributory negligence does not arise.

[28]

Damages

If I am wrong in finding that the defendant was not negligent, I proceed to assess damages that I would have otherwise awarded to the plaintiff. The defendant conceded there was no question the plaintiff could not go back to the Police Force, and conceded she was entitled to a past claim of economic loss up until the time of trial, but thereafter, only conceded an award of damages for her loss of earning capacity as a "very modest buffer".
On the basis of the medical evidence tendered on behalf of the plaintiff, which I have preferred, the plaintiff has suffered a very serious psychological injury as a result of her exposure to traumatic events during her employment by the defendant. I accept the weight of medical opinion that she is incapable of returning to any type of paid employment and therefore I accept the plaintiff's claim for past wage loss which I have rounded out to $450,000. I also award her loss of superannuation on that wage loss which I have rounded out to $50,000. The plaintiff is also entitled to the payments deducted from her workers compensation payments pursuant to the principal in Fox v Wood [1981] HCA41; (1981) 148 CLR 438 which has been claimed in the sum of $30,000. I therefore would have awarded the plaintiff a total of $530,000 for past economic loss.
I find the assumptions upon which the plaintiff claims future loss of earning capacity, as set out in the table in [350] above, to be reasonable. I find that it would be reasonable to allow three years total loss of earnings to permit some degree of recovery and retraining, and thereafter, I find that she has a residual earning capacity of approximately $300 net per week. I also accept that the plaintiff would likely have retired from the Police Service at age 60. Her future loss of earning capacity therefore would have been calculated as follows: Total loss of $1457 net per week for three years (less 15% for vicissitudes), rounded to $180,000. Loss of $1157 net per week for 17 years, deferred for three years, less 15%, rounded to $600,000 Loss of future superannuation, rounded to $100,000.
I also find that it would have been reasonable to award the plaintiff a buffer for the loss of prospects of promotion during her 20 year career in the Police Force. A fair assessment of that loss, including superannuation, I find is $50,000.
Therefore the plaintiff's damages for future loss of earning capacity would have amounted to $930,000.
The plaintiff's total damages for economic loss would have therefore amount to $1,405,000.

Melanie Sills v State of New South Wales

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (30 paragraphs)

Parties

Cases Cited (20)

Cited By (2)