Patrech v State of New South Wales

Court of Appeal (NSW)|2008-11-28|Before: Beazley JA, Campbell JA, Macfarlan JA, Per Beazley JA, MacFarlan JA

Background facts 13 The appellant joined the police service in 1971, at age 22. He progressed through the service, attaining the rank of Senior Sergeant in 1988. He was regarded by his peers as a conscientious and hard-working officer. He was appointed Patrol Commander at Brewarrina in 1985 and was transferred to Tamworth in 1991 as a tactician, and he later became Station Controller. He frequently relieved as Duty Officer. From time to time, the appellant also acted as Relieving Patrol Commander at Tamworth, Armidale and Moree. 14 On 21 September 1995, the appellant, in company with Sergeant McAuliffe, served an Interim Apprehended Violence Order (the AVO) on Laidlaw following a formal complaint by Laidlaw's then de facto wife. She had also informed police that Laidlaw had a large quantity of weapons stored at her home. Laidlaw denied possession of any weapons. However, during a search of the premises at the time of service of the AVO, the appellant and Sergeant McAuliffe located a large weapons arsenal, including firearms, grenades, landmines, booby traps and numerous boxes of police ammunition. A shotgun was also located in Laidlaw's motor vehicle. For reasons of convenience, these events will be referred to in these reasons as "the 1995 events". 15 In early October 1995, the appellant became aware that Laidlaw was making threats against his life. These threats became the subject of a report to superior officers at Tamworth by Senior Constable Bottomley, the Domestic Violence Liaison Officer at Tamworth. The report was based upon a conversation that Senior Constable Bottomley had had with Laidlaw on 25 September 1995 at a hotel. During that conversation, Laidlaw made threats against three officers, including the appellant. He also told Bottomley that he intended to take his own life after carrying out the threats he had made. At the time, Senior Constable Bottomley dismissed the threats as being due to Laidlaw's depression and alcohol consumption. 16 On 10 October 1995, Laidlaw telephoned Senior Constable Bottomley at home, repeating the threats he had made previously at the hotel. On this occasion, the threats were particularly directed against the appellant. In his report of this incident, Senior Constable Bottomley said he was concerned about the threats, although he was doubtful that Laidlaw would carry out any of them, believing them to be "depression related comments only". Nonetheless, he recommended that further attention be given to the matter, by way of a warning to the police officers against whom the threats had been made. He also recommended that a more concerted effort be made to deal with Laidlaw's "obvious state of depression". 17 On 14 October 1995, Chief Inspector Middleton provided Senior Constable Bottomley's report to the appellant, telling him that Laidlaw had been making threats, "that he is going to take your life and his life". He also informed the appellant of threats Laidlaw had made against two other police officers. 18 Shortly after this, the appellant received a telephone call from Sergeant Graham of the Police Welfare Branch, who had accompanied Laidlaw to a psychiatric consultation. Sergeant Graham said that he could not "go into the conversation" that had taken place at the consultation, but warned the appellant "to be careful". 19 Sometime after the AVO had been served on Laidlaw, Inspector Faulkner informed the appellant that he had been speaking to Laidlaw, who had said that "he would make Port Arthur look like child's play". The appellant gave evidence that this conversation made him feel very apprehensive. 20 The appellant was also informed that Laidlaw had "smacked another Police Officer … in the mouth". The officer concerned, Senior Constable Taylor, confirmed to the appellant that this had happened. The appellant said this also gave him cause for concern. However, in his evidence at trial, Senior Constable Taylor said that the incident was a "playful slap on the cheek" which had occurred when both he and Laidlaw were drunk. 21 During the period from 1995 to 1996, the appellant was being harassed by his former de facto wife. By this time, the appellant had re-married and his wife owned a house at Banora Point near Tweed Heads, although she lived in Tamworth. 22 At some stage, charges were laid against Laidlaw following the discovery of the weapons in Laidlaw's de facto wife's house and his motor vehicle. The proceedings relating to those offences were finalised in February 1997, when the offences were dismissed under the Mental Health (Criminal Procedure) Act 1990, s 32. 23 In the period after becoming aware of Laidlaw's threats against him, the appellant suffered a number of physical and emotional reactions. He became "moody and fearful" and "very vigilant". For example, he would: "… not leave home until he had checked that his German shepherd was in the backyard and then would leave via the backyard and go around to check the front door to make sure that the rest of his family was safe to leave." 24 The appellant had trouble sleeping at night; he increasingly consumed alcohol, having earlier developed an alcohol problem; he lost weight and was not eating as well as usual; he started developing rashes when under stress; he became short tempered; and he became more insular, tending to stay at home, rather than mixing with others in social activities. If he did go out, he would position himself so that he could observe people coming or going. He had constant thoughts of Laidlaw. He was reminded of Laidlaw's threats when other police officers would tell him that they had seen Laidlaw, and that he was threatening to take the appellant's life and then his own. 25 A report made by Senior Constable Woods, dated 15 June 1997 was provided to the appellant's patrol commander, Superintendent Phaff. Senior Constable Woods stated in his report that he had observed first hand Laidlaw's "violent and aggressive nature" over a period of seven years. He said he was aware of the threats Laidlaw had made towards police generally and the appellant particularly, including "death, serious injury and the blowing up of Tamworth Police Station". He expressed the opinion that Laidlaw was "quite capable of carrying out the threats he made against Police" and in particular those he had made against the appellant, for whom Laidlaw had "a strong hatred". He stated that it had been shown medically that Laidlaw was "mentally unstable".

Applications for transfer 26 On 23 April 1997, the appellant applied for a transfer from Tamworth to Tweed Heads. He advanced two reasons for requesting the transfer. The first related to Laidlaw's threats, including the appellant's knowledge that Laidlaw had expressed an intention to kill him. He drew attention to the dismissal of the charges under the Mental Health (Criminal Procedure) Act, s 32, and the fact that Laidlaw had been "boarded out" from the police force as medically unfit. The appellant stated that he had expected that after Laidlaw had been dealt with by the Local Court and the police service in this way, Laidlaw's aggression towards him would cease. However, Laidlaw continued to reside within the Tamworth patrol area. The appellant said that he had seen Laidlaw on one occasion and it was obvious to him that the aggression had not ceased. 27 The second reason proffered by the appellant for the transfer related to the difficulties he had experienced with his former de facto wife. He stated that although this "second incident" was "not worth relating", it was "impacting" on himself, his family and the police at Tamworth. It appears that his former de facto wife, in what the appellant saw as acts of harassment towards him, was in contact with members of the Tamworth police, including the Action Patrol Commander. The appellant said that his former de facto wife also made numerous attempts to defame and embarrass him within the Tamworth community. His former de facto wife had been subject to action under the Mental Health Act 1990. 28 The appellant indicated in his application that as his wife had a home at Banora Point, a transfer to Tweed Heads police station would cause the least financial difficulty for his family. He pointed out that he and his wife had two children residing with them, a daughter aged 5 years and a son aged 16 years. 29 The appellant's application for transfer was supported by Inspector Hardwick, the Commander at Tamworth. Inspector Hardwick spoke highly of the appellant's professional conduct and stated that he would be an asset to any command. Inspector Hardwick said that he was aware of the reasons for the application and he confirmed that the matters advanced by the appellant in support of the transfer were accurate. Likewise, Inspector Faulkner recommended the appellant's application "on 'compassionate' grounds". He also confirmed that the appellant was "a most energetic and dedicated member of the Service". 30 The application was rejected by Chief Inspector Delamont, State Transfers Coordinator. The Chief Inspector accepted that there was substance in the request, but said that at that time there were no vacancies at any centre within that part of the Northern Rivers District for officers at Sergeant or Senior Sergeant level. In addition, he said that the police service was "undergoing a major restructure". In the meantime, it was unknown how many Duty Officer positions there would be within the final Local Area Command. He indicated that when the restructure was finalised, the appellant might be "competitive in applying" for one of the positions in the area. Chief Inspector Delamont recommended that the appellant be informed that there were no vacancies at the centre nominated, but that upon the finalisation of the restructure, he would be eligible to apply for one of the Duty Officer positions within the "New Northern Region". This recommendation was approved on 9 May 1997 by the Commander, Establishment Control Branch. Formal notification of this was given to the appellant at some stage after 13 May 1997. 31 The appellant became distressed after his application for a transfer was refused. He started to view himself as a "victim" and considered that the police service would not help him. He said that he then took what he believed to be "the only steps open to him" and on 28 January 1998, applied to the Internal Witness Support Unit for assistance. 32 Shortly prior to that application, the appellant became aware that Laidlaw had made a complaint against him in relation to the service of the AVO and the laying of charges relating to the weapon offences. The appellant stated that he saw this complaint as being the start of reprisals by Laidlaw and believed that Laidlaw was "capable of carrying out his previous threats". He said that he made a number of previous requests for assistance, but did not know whether his concerns had been taken seriously. He sought a transfer on compassionate grounds and said he was "prepared to go to Lismore or any station north of that". He concluded that the Internal Witness Support Unit appeared to be his only "avenue for assistance" and that his problems stemmed from the fact he had the "intestinal fortitude to deal with an Officer who was a real problem". 33 This application, which was dealt with by Senior Constable Rodney Ormes, was also refused. Senior Constable Ormes documented the action he took in refusing the application, including speaking to the appellant on 30 January 1998. In that conversation, he suggested that the appellant examine the possibility of taking out an AVO. It would appear that the appellant dismissed that suggestion somewhat bitterly. They also discussed the underlying objective of the application, which was to obtain a transfer, in particular to a Northern Rivers location. Senior Constable Ormes advised the appellant that that was not possible, because the Internal Witness Support Unit was not responsible for transfers. Senior Constable Ormes also contacted Superintendent Phaff and "strongly recommended" that he "conduct a complete risk assessment" on the appellant. Superintendent Phaff informed Senior Constable Ormes that he was aware of the situation and "would deal with it accordingly". 34 Shortly after the application to the Police Internal Witness Support Unit was rejected, the appellant was called to Superintendent Phaff's office. Superintendent Phaff said to him, "How dare you go above my head by going to the Internal Witness Support Unit?". After a heated exchange, Superintendent Phaff and the appellant spoke about the appellant's request for a transfer. Superintendent Phaff asked the appellant to provide him with any supporting documentation. The appellant then became aware that no entry had been made in the COPS system recording the threats made against him. The appellant was stunned by this omission. He provided Superintendent Phaff with a copy of Senior Constable Woods' report of 15 June 1997 and told him that Senior Constable Bottomley had also produced a report. The appellant was directed by Superintendent Phaff to create the relevant COPS entry. He did this on 30 January 1998. 35 On 18 March 1998, the appellant was contacted by Sergeant Murray, who required him to provide a comprehensive report relating to the 1995 events. Sergeant Murray was acting upon a complaint from Laidlaw made to the Ombudsman. The appellant was then subjected to an internal inquiry in relation to those matters. 36 On 23 March 1998, Superintendent Tamlyn, Staff Officer Personnel, South West Region, provided a reference for the appellant, recommending him for a position at Byron Bay. In April 1998, the appellant was transferred to Byron Bay. That transfer was "over-strength". 37 I have earlier referred to the requirement that the appellant give evidence in the 2001 court case. The case involved an application by Laidlaw for an increased pension. The appellant had resisted giving evidence, as he was terrified of doing so. He was eventually provided with assistance, such as being accompanied to and from court. In addition, the proceedings were listed at a courthouse which had electronic security arrangements in place. 38 Prior to having to attend the 2001 court case, the appellant's symptoms had subsided and he had "started to become his old self again". He had not sought medical attention before that time. The first treatment he obtained was on 10 December 2001, when he saw Mr Bayliss, psychologist and hypnotherapist, at Byron Bay. Mr Bayliss referred the appellant to a general practitioner, Dr Hounslow, whom he saw on 11 December 2001. Dr Hounslow, in turn, referred the appellant to a psychiatrist, Dr Johns, whom the appellant first saw on 13 December 2001. 39 The appellant went on sick report on 16 January 2002 and did not return to duty until 18 April 2002, when he was placed on restricted duties. He went off work again on 16 June 2002 on sick leave. On 27 March 2003, the Police Superannuation Advisory Committee, on behalf of State Super, certified that the appellant was "medically unfit" due to PTSD. The appellant was medically discharged from the police force on 5 April 2003 and on 7 April 2003 a delegate of the Commissioner of Police certified the appellant's PTSD was due to him being "hurt on duty".

Police practice in relation to stress conditions 40 On 30 September 1992, Task Force Alpha produced Report No.5, entitled "Physical risks in policing: research report". The primary focus of the report was the management of high-risk operations; the management of physical trauma; and the strategic assessment of violence. The task force ascertained that officers wanted support from the police service in respect of the stress they experienced in the performance of their duties. There was significant complaint that the support then being provided within the police service was inadequate. As one officer described it to the task force, the existing counselling services were a "mockery". Police officers identified a need, not only for specialist support services, but also for support from within the police service hierarchy. One officer noted that the latter was the more important. The report noted that such support should be institutionalised, so as to minimise the possibility that individuals needing that support would be regarded as deficient in some way. 41 On 27 June 1994, following the Task Force Alpha Report the Commissioner of Police issued a set of "Formal guidelines for the reporting of threats against police" (the guidelines). The guidelines stressed the importance of recording all threats, even those which seemed insignificant. Threats were to be reported "at the first available opportunity to the patrol or unit commander as a matter of urgency". The report was to be by way of a Field Information Report containing details of the offender, the victim, the motivation for the threat and its nature. The Field Information Report was to be submitted to the Patrol/Region Crime Squad/Task Force Intelligence Officer. The Intelligence Officer was to notify the commander, who was to decide what action was to be taken. In addition, the guidelines stated that the Witness Security Unit was developing risk assessment procedures for use by local commanders in determining the status of a threat. 42 In April 1997, the police service issued the "Commander's guide to security when staff are threatened". Under the heading, "Responsibilities of commanders and supervisors who are advised of a threat against a member of the police service", commanders and supervisors were directed to make an immediate assessment of the credibility of the threat. They were to identify services that might be available, either with the police and other government departments or authorities and make the necessary advice or information available to the officer reporting the threat. There was also a direction to employ qualified criminal investigators or intelligence analysts in any investigation or analysis of the threat.

The trial judge's findings 43 The trial judge rejected the appellant's case on two bases. First, he was not satisfied that any injury was occasioned to the appellant's health by reason of the Laidlaw threats. In reaching that conclusion, his Honour relied upon the evidence of the medical practitioners other than Dr Klug, as providing a: "… consistent picture … on the account given to them by the [appellant] … that prior to November 2001 he did not suffer in his view from any symptoms which could be described as being symptoms of PTSD." 44 His Honour continued: "The consistent picture was that it was the [2001 court case] which caused the breakdown in his health." 45 The appellant's case that the Laidlaw threats contributed to his PTSD was supported by Dr Klug. Dr Klug was of the opinion that the threats were "particularly stressful" and that the appellant had "received no appropriate support from the police service". Dr Klug considered that the "[2001 court case] was the final precipitant for his full blown symptoms". 46 Having regard to the difference between the opinions expressed by the other medical practitioners and Dr Klug, his Honour considered it was necessary to consider Dr Klug's evidence with some care. He eventually rejected Dr Klug's opinion on the basis that Dr Klug had become "partisan" and that his conclusion was inconsistent with the history given to the other medical practitioners and, in particular, was inconsistent with the history given to Dr Johns. His Honour thus rejected Dr Klug's evidence about any injury to the appellant occurring in relation to the Laidlaw threats. His Honour also rejected any evidence from the appellant upon which Dr Klug's view was based. 47 Having rejected that the appellant suffered any relevant injury relating to the Laidlaw threats, the question of breach of duty did not strictly arise. Nonetheless, his Honour considered whether the police service had breached its duty of care towards the appellant in connection with the Laidlaw threats: "I am not satisfied there were any other steps that the police service should realistically have taken. There was nothing to suggest that [the appellant] required any particular medical attention or formal counselling and in my judgment all that was required to be done to deal with the situation was done. It is said that he should have been transferred much sooner than in fact he was. The evidence satisfied me that appropriate steps to achieve an appropriate transfer were taken and in particular Inspector Faulkner reassured [the appellant] that his transfer would take place. It is clear that [the appellant] became frustrated that it wasn't happening as soon as he would like but the urgency in my judgment was not that desperate because [the appellant] restricted his area of interest to the Northern Rivers in particular anywhere north of Lismore. Had he felt a pressing need or under a pressing threat then I would have expected him to say that he wished to be transferred anywhere not just to the Northern Rivers which it was common knowledge was a highly sought after area. Accordingly I reject the various allegations made on behalf of [the appellant] in relation to [the police service's] conduct after the threats made by Mr. Laidlaw, I find no basis upon which to criticise [the police service], no breach of duty and no act of negligence."

First issue: did the appellant give an inconsistent history to Dr Klug as compared to the history given to the other medical witnesses? 48 The appellant challenged his Honour's finding that he had given Dr Klug a history of having symptoms of PTSD arising from the Laidlaw threats which was inconsistent with the history given to all other medical practitioners, including his treating doctors. He also challenged the finding that he had no such symptoms until the 2001 court case. 49 The appellant contended that the trial judge misapprehended the medical evidence and incorrectly criticised Dr Klug's evidence as being "partisan". The partisan aspect of that evidence, as found by his Honour, was in Dr Klug's statement that the appellant had not received appropriate support from the police service. 50 These issues require a detailed review of the evidence. 51 The appellant submitted that it was necessary to have regard to the circumstances in which each medical practitioner was consulted and the purpose of the consultation, in determining first, whether an incorrect history had been given and, secondly, whether there may be some explanation for such different history, if any.

Mr Bayliss 52 As earlier indicated, the appellant first sought medical treatment for his psychiatric state from Mr Bayliss on 10 December 2001. Mr Bayliss provided a report to State Super on 6 December 2002. In "Details of history furnished", Mr Bayliss referred to the Bathurst incident and the Laidlaw threats. Mr Bayliss recorded a history that in early 1997 (sic 1998), the appellant had moved to the Ballina area, hoping he would be safer, but that he continued to feel anxious about Laidlaw. He also recorded a history of the 2001 court case. Mr Bayliss recorded that at the time of the 2001 court case, the appellant felt "extremely stressed, anxious and unsupported and not protected by the Police Service". 53 The appellant reported to Mr Bayliss that, shortly after his appearance in the 2001 court case, "violent nightmares relating to the Bathurst [incident] and to Mr Laidlaw resumed". As recorded by Mr Bayliss, the appellant reported to him: "… feeling stressed most of the time with … nightmares, frequent insomnia, tearful episodes, social withdrawal, alcohol and occasional gambling abuse". 54 The appellant told Mr Bayliss that he was unpredictably irritable and angry. He also expressed anger towards the police service, because of its lack of support for him. He reported that accounts of violence or suicide in the media would "bring back memories of Mr Laidlaw and of Bathurst". He had flashbacks on a daily basis relating to both the Bathurst incident and the Laidlaw threats. 55 Mr Bayliss diagnosed the appellant as having PTSD, which he considered to be both chronic and severe. He considered the appellant had probably suffered from this condition for about 17 years. He was of the opinion that the experience with Laidlaw had "undoubtedly exacerbated" the appellant's condition. He concluded that the severity of the PTSD was such that the appellant was unable to perform operational policing duties. Mr Bayliss said: "… [the appellant's] PTSD has clearly been caused by and arisen in the course of his employment in the … Police Service. Most likely, the PTSD stems from his involvement in policing at the Bathurst [incident] but the episodes with Mr Laidlaw in Tamworth and [the 2001 court case] have exacerbated his condition." 56 Mr Bayliss provided a second report, dated 13 April 2006, in response to a request from the appellant's solicitors. He said that since his earlier report, he had seen the appellant on a further 45 occasions. Under the heading "Details of history furnished", Mr Bayliss stated that over the course of the appellant's treatment, further details of his history with the police service had emerged, but those details had not altered the clinical picture that he had earlier formed in any significant way, but had merely confirmed it. 57 The trial judge accepted that the general thrust of Mr Bayliss' view was that originally the appellant had suffered PTSD as a result of the Bathurst incident and that the Laidlaw threats and the 2001 court case had exacerbated his condition. His Honour stated that he did not regard the history given to Mr Bayliss as being at odds with that given by Dr Johns.

Dr Hounslow 58 It will be recalled that on 10 December 2001, Mr Bayliss referred the appellant to Dr Hounslow, whom he saw the following day. Dr Hounslow provided two reports, the first dated 26 March 2002 to the police service's Health & Workplace Services. That was a short report, in which Dr Hounslow stated that he saw the appellant on 11 December 2001, at which time he was "exhibiting classical symptoms of severe [PTSD]". The symptoms were of such severity as to warrant immediate referral to a local psychiatrist and then to a psychologist. Dr Hounslow suggested that the police service contact Dr Johns, to whom he had referred the appellant, for more details of the appellant's condition and history. 59 In his second report dated 14 February 2006, addressed to the appellant's solicitors, Dr Hounslow recorded the commencement of his treatment of the appellant, and stated he had subsequently seen the appellant on 62 occasions, mostly for problems arising from severe PTSD. The report was brief and did not record a history of the appellant's complaints.

Dr Johns 60 Dr Johns reported to Dr Hounslow on 9 January 2002. The report was a short report of five paragraphs, in which Dr Johns recorded that the appellant had told him: "… what had transpired in relation to another police officer while he was stationed in Tamworth and how he finally transferred to Byron Bay where he thought he would be free from the threats and intimidation. This has not been the case and [the appellant] has suffered a number of stress-related symptoms including chest pain, a facial rash, poor sleep, nightmares, episodes of tearfulness, and social withdrawal." 61 There was also a brief reference to the Bathurst incident. Dr Johns commented that the appellant might well be "experiencing a reactivation of PTSD in relation to that occasion". 62 On 8 May 2002, Dr Johns reported to the police service's Workers Compensation Section. At that time, he had seen the appellant on seven occasions. It is necessary to set out significant portion of this report: "[The appellant] told me he had not previously had psychiatric treatment. He said that he had been well up until November 2001. In 1995 he served an AVO on a Police Officer in Tamworth for domestic violence. [Laidlaw] was a Vietnam Veteran and had an arsenal of firearms and ammunition at his home, had a history of violence, and threatened to kill [the appellant] and then to take his own life. On 27.11.01, [the appellant] went to [the 2001 court case] in connection with this matter and 2 days later began to experience nightmares about [Laidlaw], began to have episodes of tearfulness, and also began to dream and have vivid memories of being set on fire during the [Bathurst incident].

[The appellant] described mood swings, irritability, vivid images of [Laidlaw], insomnia, tearfulness, inability to cope with his work, and apprehension over his future. At interview, [the appellant] was obviously distressed, wept when discussing his symptoms, and his mood was depressed with feelings of hopelessness and frustration.

My diagnosis was that [the appellant] was suffering from a Depressive Disorder directly related to his experiences with [Laidlaw]. During the course of our further discussions, it appeared that [the appellant] was suffering from Post Traumatic Stress Disorder due to his experiences [during the Bathurst incident], as well as other traumatic events during his career as a Police Officer, and this condition had been reactivated by these more recent traumatic events ." (Emphasis added) 63 Dr Johns reported that his management approach had been "a combination of supportive psychotherapy together with anti-depressant medication". He also commented that the appellant was seeing Mr Bayliss for "specific treatment aimed at attempting to resolve his symptoms through hypnotherapy and behavioural techniques." 64 On 26 August 2003, Dr Johns provided a report to the police service's Medical Entitlements Team, Legal Services Division. In the report, he stated that the appellant was under his care and was suffering from chronic PTSD, "directly due to traumatic events to which he was exposed during the course of his duties as a Police Officer". 65 The trial judge, other than setting out portions of Dr Johns' reports, including the passages to which I have referred above, made no comment, or finding, apart from stating that in the report of 26 August 2003, Dr Johns expressed his agreement with the views of Dr Persley on p 6 of that doctor's report dated 28 February 2003. Furthermore, his Honour did not regard the history given to Mr Bayliss as being inconsistent with that given to Dr Johns.

Dr Persley 66 Dr Persley saw the appellant on 24 February 2003. It is apparent that the report was commissioned by or obtained for the purposes of the appellant's superannuation status. In his report to State Super dated 28 February 2003, Dr Persley, under the heading "Presenting complaint", stated that the appellant: "… reported that he experienced the onset of depression with suicidal thoughts towards the end of 2001." 67 Dr Persley recorded symptoms of the type referred to by Dr Johns. Dr Persley, at para 1.5 of his report, recorded that the appellant believed that "the onset of his symptoms" had been "precipitated by his involvement in giving evidence" against Laidlaw in the 2001 court case. Dr Persley recorded a history relating to Laidlaw at Tamworth, including his known reputation for aggression, the subsequent charges against him and his discharge under the Mental Health (Criminal Procedure) Act, s 32. At para 1.6 of his report, Dr Persley recorded that Laidlaw had made a number of death threats to the appellant. He also stated that the appellant had become terrified when giving evidence in the 2001 court case. 68 At para 1.7, Dr Persley recorded the appellant's presenting complaints in these terms: "… [the appellant] described the onset of a preoccupation with fear for his life and constantly reliving events associated with Laidlaw's death threats as well as the activation of intrusive memories of distressing and traumatic events that he had encountered during his police service." 69 Dr Persley said that "some of the examples provided during the interview" were the Bathurst incident, together with distressing events which he had attended during the course of his police service, including attending the scenes of train accidents, attending upon the deaths of children and being fired upon on two occasions while working with the Tactical Response Group. 70 Dr Persley, under the heading "Prognosis", diagnosed the appellant as suffering from chronic PTSD which was "very unlikely to improve". The doctor was of the opinion that due to the severe nature of the appellant's condition, he was incapable of discharging the duties of a police officer. He added, at para 16.2: "Furthermore this condition is clearly related to [the appellant's] long-term experience as a police officer encountering life threatening and distressing situations. In particular he has been set on fire twice and hit in the face with a brick. These earlier experiences were reactivated when he was required to give evidence against [Laidlaw] during which time he has received death threats which he has taken seriously. As a consequence he has feared for his life and has become immobilised by his anxiety."

Dr Persley concluded that the appellant was " incapable of performing any work outside of the police force ", but that there was " a minimal chance that with further treatment " he might improve. 71 The opinions of Dr Persley as to the appellant's fitness for employment as a police officer and fitness for work outside the police force, were the matters with which Dr Johns agreed in his report of 26 August 2003. As I have indicated above, his Honour considered there was no difference in the opinion of Dr Johns in this regard: see [65] above.

Professor Morris 72 The final medical report was that of Professor Morris, dated 3 December 2003 and provided to State Super at its request. Professor Morris' report recorded that the appellant was medically retired, having been hurt on duty and that his diagnosis was PTSD. The succeeding paragraphs of Professor Morris' report dealt with the appellant's condition at the time of consultation. The only comment made in relation to the appellant's past psychiatric history was that there was "no psychiatric history prior to the onset of his PTSD". Professor Morris did not record any history relating to the onset of PTSD, nor make any analysis of when the onset occurred. 73 Professor Morris' mental status examination was also directed to the manner in which the appellant presented at interview. Professor Morris recorded that the appellant had experienced episodes of "depressed mood", but said they did not "qualify for a diagnosis of major depression or another depressive diagnosis". It was noted that the appellant episodically abused alcohol, but that his alcohol abuse was in remission at the time of consultation. 74 Professor Morris was of the opinion that the appellant was "not capable of returning to any police or security based work dealing with the general public in situations where he could be threatened". He considered that the appellant would continue to have chronic symptoms of PTSD for the indefinite future, which were likely to vary in intensity, if circumstances were "stressful", or if his drinking returned to the level of "alcohol abuse". Professor Morris commented that his report had answered questions 1-6 in State Super's letter of referral. That letter was not in evidence. 75 None of these doctors gave oral evidence.

Was his Honour's finding in relation to the medical reports correct? 76 The first question which arises for consideration is whether the finding made by his Honour that the "consistent picture" given by the appellant to these doctors was that the breakdown in his health had been caused by the 2001 court case, is available on the evidence. 77 There is an ancillary question as to whether it is relevant for a patient, particularly a patient with a psychiatric illness, to identify that he or she was suffering from anything that person would regard as an illness. 78 An examination of the medical reports (that are summarised above) reveals the following. Dr Hounslow did not record any history in either of his reports. That does not mean he did not take a history. He treated the appellant on a frequent basis over approximately five years. It may be that he did not take a detailed history at the first consultation, given that the degree of the appellant's disability at that time was so severe as to warrant an immediate referral to a psychiatrist. However, given that Dr Hounslow does not set out any history in either of his reports, they could not provide a basis for his Honour's conclusion. Nor could those reports provide a basis for his Honour's conclusion that prior to 2001, the appellant did not suffer, "in [the appellant's] view", from symptoms that could be described as symptoms of PTSD. 79 Dr Johns' first report to Dr Hounslow, dated 9 January 2002, had, after an initial greeting to Dr Hounslow, an opening statement that the appellant had told him about the Laidlaw threats. Dr Johns referred to the appellant's transfer to Byron Bay and recorded that the appellant thought that there "he would be free from the threats and intimidation". Dr Johns noted that this was not the case and that the appellant had since suffered a number of stress-related symptoms. 80 Dr Johns did not confine those symptoms to having arisen after the 2001 court case. Indeed, there was no reference to the 2001 court case in the first report, although there was a reference to the Bathurst incident. 81 Dr Johns' report to the Workers Compensation Section of the police service, dated 8 May 2002, referred to the 2001 court case. Dr Johns recorded that the appellant told him that he "had been well up until November 2001". Immediately following that comment, Dr Johns made reference to the circumstances of serving the AVO on Laidlaw in 1995. Dr Johns then referred to the appellant's report of symptoms: see second para, set out at [63] above. Dr Johns did not specify when those symptoms started. 82 Dr Johns next recorded his diagnosis of a Depressive Disorder which he said was "directly related to [the appellant's] experiences with [Laidlaw]". Dr Johns also considered that the appellant was suffering from PTSD due to the Bathurst incident, "as well as other traumatic events" during the appellant's career as a police officer. Dr Johns did not confine his diagnosis of either the Depressive Disorder or PTSD to the 2001 court case. Rather, over the course of the appellant's treatment from December 2001 to May 2002, it is apparent that Dr Johns had obtained a history and made a diagnosis that related to the whole of the appellant's police service, including the Laidlaw threats. 83 There is one sentence in Dr Johns' report of 8 May 2002 which may provide some support for the view that the appellant did not suffer symptoms of PTSD prior to the 2001 court case. Dr Johns' recorded that the appellant said he "had been well up until November 2001". That sentence, however, has to be read in context. It could not have been an accurate statement, otherwise Dr Johns could not have made the diagnosis of both a Depressive Disorder and PTSD in the terms he did. The comment about being "well" immediately followed the history that the appellant had not previously had psychiatric treatment. It is not apparent from the report what questions Dr Johns had asked to elicit a reply to enable him to make the comment that he did. It is, in any event, a generalisation and, as I have said, does not accord with the subsequent diagnosis. Nor does it accord with his Honour's own finding relating to the history given to Mr Bayliss, which his Honour considered was not at odds with that given to Dr Johns. 84 Dr Johns' third report, dated 26 August 2003 and directed to the Legal Services Division of the police service, was quite general in nature. It did not contain any history, but stated that the appellant was suffering from chronic PTSD "directly due to traumatic events to which he was exposed during the course of his duties as a Police Officer". Dr Johns then commented upon the appellant's capacity for work both with and outside the police service. 85 The next report of relevance to this analysis is that of Dr Persley, dated 28 February 2003. In the part of his report headed "Presenting complaint", Dr Persley reported of "the onset of depression with suicidal thoughts towards the end of 2001". He then recorded that the appellant had an inability to concentrate and that his "suicidal thoughts occurred in the context of emotional lability with depression, tearfulness and irritability". Clearly, the reference to "the context of emotional lability" was Dr Persley's assessment of the appellant's emotional state. Dr Persley recorded, as set out above at [67], that the appellant "believed that the onset of his symptoms were (sic) precipitated by his involvement in giving evidence" in the 2001 court case. Dr Persley also recorded that the appellant had not attended for psychiatric treatment before 2001. Interestingly, under the heading "Alcohol and substances", Dr Persley recorded that the appellant admitted he had: "… a binge pattern of alcohol abuse extending over 10-12 years. [The appellant] believes that this has been a way of dealing with his stressors." 86 Dr Persley's opinion as to the appellant's fitness for employment is set out above at [70]. That comment unequivocally connected the appellant's PTSD to his experiences as a police officer, "encountering life threatening and distressing situations". In particular, reference was made to the Bathurst incident, as well as to the Laidlaw threats, which the appellant took seriously. It was Dr Persley's view that the earlier experiences arising out of the Bathurst incident "were reactivated when [the appellant] was required to give evidence [in the 2001 court case]". In short, Dr Persley's opinion was that the causes of the appellant's condition were numerous and included his fear of Laidlaw, arising out of the Laidlaw threats. 87 Finally, there is the evidence of Professor Morris. As I have already indicated, Professor Morris' report was directed to the appellant's current status and did not record the history which gave rise to his psychiatric condition. In particular, the report made no reference to any of the three significant events the subject of discussion in the other medical reports. 88 In my opinion, the above analysis demonstrates that the "consistent picture" that his Honour concluded emerged from the medical reports, that the 2001 court case (and no earlier incident or experience) caused the breakdown in the appellant's health, is not supported by the medical evidence. It is apparent that in reaching his conclusion his Honour failed to have regard to the purposes for which the particular reports were prepared. The purposes of the reports were various. Apart from the report of Mr Bayliss dated 13 April 2006, which was in response to a request for a report from the appellant's solicitors, none of these medical practitioners provided medical reports for the purposes of the appellant's negligence proceedings against the police service. There were also reports between the referring doctor and the treating specialist. Other reports were to the police services' Health and Workplace Services and to the Workers Compensation Section for the purpose of assessing the appellant's condition for discharge. Again, others were to State Super, to determine the appellant's superannuation status. 89 A trial judge is required to analyse the evidence. That analysis can only be properly undertaken if the evidence, in this case the medical evidence, is considered in its proper context. The trial judge's assessment of the medical evidence may have been unassailable had the medical reports been medico-legal reports, including medico-legal reports of treating doctors, prepared for the purposes of trial or prepared for the purposes of similar or associated proceedings, such as workers' compensation proceedings. 90 That was not the case here. Although Dr John's report dated 8 May 2002 was directed to the police service's Workers Compensation Section, the appellant did not at that time have any proceedings on foot. It is apparent from the terms of the report that it was directed to his entitlement to ongoing workers compensation at that time. The report is significant, however, because it not only referred to the Laidlaw threats, but directly connected the appellant's condition with his experiences with Laidlaw. The relevant portions of the report are set out at [62] above and demonstrate that his Honour, quite apart from failing to analyse the medical reports in their proper context, misconstrued evidence that expressly linked the Laidlaw threats with the appellant's psychiatric illness. 91 Having concluded that the appellant must succeed on the first issue, it is not necessary to consider the ancillary question, that is, whether his Honour erred in considering that the appellant himself needed to understand or believe his symptoms constituted a mental illness. I would only comment that it is unlikely that could be a relevant consideration. The true question for determination in a case such as this was whether the person was suffering symptoms, which properly diagnosed, constituted an illness.

Second issue: was it open to his Honour to find that Dr Klug was " partisan "? 92 The appellant challenged the trial judge's assessment of Dr Klug's evidence as "partisan". 93 Dr Klug provided two medico-legal reports to the appellant's solicitors dated 30 August 2004 and 21 December 2005. In his first report, Dr Klug set out a detailed history, including the Bathurst incident and the Laidlaw threats and the appellant's transfer to Byron Bay. Dr Klug recorded that the appellant said that at Byron Bay, "he began to feel more relaxed", until he received a telephone call informing him he was required to give evidence against Laidlaw. Dr Klug provided a history relating to the appellant's appearance in the 2001 court case. That history included the following: "In the middle of [the appellant's] evidence, Laidlaw got up, stared at him and then walked out. [The appellant] said '… and I could see him (imagine him) walking back with a gun'. Laidlaw then went to the toilet (unbeknown to [the appellant] at the time) and then returned to the courtroom. [The appellant] said 'I just couldn't believe they'd let him out of the courthouse without an escort and that brought me undone '. He became grossly symptomatic from that time. He developed marked depression of his mood, suicidal thoughts and markedly diminished concentration. He also experienced marked hypervigilance about Laidlaw, a marked preoccupation with Laidlaw, a conviction that Laidlaw would 'go out (die) very physically - he's not just going to go out with a heart attack - if something happens to him he'll take me with him - he'll just end up standing by my bed one night'. It was not long after this that [the appellant] went on sick leave." (Emphasis added) 94 Dr Klug recorded a history of symptoms after the Bathurst incident of "recurrent nightmares", "sleep disturbance", "excessive anxiety" and "probable depression" of the appellant's mood. He recorded the appellant as believing that he "had no overt PTSD symptoms until about the mid 1990's but he 'suffered stress at times'". He noted that the appellant had said that the symptoms returned in "full force by late 2001", after the 2001 court case. 95 Dr Klug recorded the appellant as saying that even though he had been "stressed by the Laidlaw matter" between 1995 and 1997, he "continued to cope", although his symptoms were exacerbated when the police service was "unsupportive and 'stepped away from me'". There was then a reference to the dispute he had with the "the boss at Tamworth" about not being granted a transfer. This was clearly a reference to the incident with Superintendent Phaff (see [34]). 96 Dr Klug expressed the opinion that the appellant had suffered chronic psychiatric symptoms over many years and diagnosed chronic PTSD that at times had been in partial remission. He believed the first bout of PTSD had probably been as a result of the Bathurst incident. Dr Klug stated: "The Laidlaw matter which was particularly stressful and for which he received no appropriate support from the Police Service whatsoever was the final precipitant for his full-blown symptoms which continue to date." 97 Dr Klug concluded: " In summary , he has suffered from a chronic post-traumatic stress disorder, alcohol abuse and possible dependence and superimposed depressive symptoms probably in the form of a major depressive disorder . These are substantially in response to work-related stresses. His prognosis is, at best, fair and possibly poor. He should remain under psychiatric care. He may benefit from in-patient treatment." (Original emphasis) 98 In his second report, dated 21 December 2005, Dr Klug did not re-engage with the appellant's history, but referred to his previous report. The focus in the report was upon the appellant's condition at the time of consultation. Dr Klug stated that his opinion was unchanged and that the appellant suffered chronic PTSD with a superimposed major depressive disorder, although there had been some amelioration of some symptoms. 99 Dr Klug gave oral evidence. In his evidence in chief, Dr Klug was asked whether he considered the PTSD which the appellant suffered was a new illness or was the re-emergence of an illness from which he had been suffering since 1985. Dr Klug responded that he considered the PTSD the appellant developed around the mid-1990s to be a new illness, although he said the appellant was to be regarded as having had a predisposition, given his symptoms in the mid-1980s. There was then a short examination on the voir dire, in which Dr Klug was asked what the cause of the new illness was. Dr Klug responded: "The threats by Laidlaw and … [the appellant's] perception that he had been grossly unsupported by the Police Service."

That evidence became part of the evidence in the proceedings. 100 In cross-examination, senior counsel for the police service clarified that Dr Klug was of the view that what caused the appellant to decompensate in 1995 was "his perception of how he was being treated by his employer". 101 Dr Klug expressed dissatisfaction with the use of the term "decompensation" that had been used by trial counsel for the police service in his questioning and it was agreed between counsel and Dr Klug that it was appropriate to refer to "the development of his symptoms". Dr Klug was then asked to assume that the appellant had not taken up any concerns he had for his wellbeing with the welfare services of the police service. He was asked whether he agreed that was consistent with the sort of personality the appellant was, that is, a person unlikely to "unburden himself", unless it was to someone with whom he was in a "close and trusting relationship". Dr Klug answered: "That might be part of the answer but I believe that the police service does not encourage it and does not provide a good framework for [the] care of [the] mental health of police officers and that it's often against the interests of a police officer to acknowledge a psychiatric problem." 102 Dr Klug was then asked to assume that such services had been offered to the appellant, but that he had declined them. It was suggested that would be inconsistent with Dr Klug's understanding of the appellant's personality. Dr Klug responded: "Except - but one also has to take into account the culture that exists in the police service with respect to care of police officers and the heavy stigmatisation that I believe occurs in the police service with respect to psychiatric illness." 103 After setting out Dr Klug's evidence that the PTSD the appellant developed around the mid-1990s was a new illness, the trial judge recorded that the transcript would reveal that he had asked Dr Klug to explain why he was now expressing the opinion that this was a new illness, given the passages in his report, dated 30 August 2004, and, in particular the comment that the appellant's symptoms were "exacerbated" in 1997 when he perceived the police service was unsupportive and stepped away from him. 104 As it appears that his Honour was influenced by the adverse view of Dr Klug on this question, it is appropriate to set out that portion of his evidence in some detail. "[HIS HONOUR]: Doctor, I'd like your help please. Going back to your August report, starting at the foot of page 3, the final paragraph starts, 'With respect to his symptom progression, [the appellant's] history is complex.' Now, symptoms of what? A. Well, he has primarily suffered from anxiety based symptoms, which includes a PTSD.

Q. But when you're referring to symptom progression, are you meaning to convey specific symptoms of a specific injury or condition or are you talking about symptoms generally? A. Well, he - it would have to be symptoms generally in the sense that he--

Q. All right, general symptoms. A. Yes.

Q. His history's complex? A. Yes.

Q. Why do you say that? A. Because he, I believe, had a bout of severe anxiety disorder, probably PTSD, at the time of the Bathurst [incident].

Q. All right. Just pausing there. There was a PTSD condition [that] occurred around about 1985 as a result of Bathurst? A. Yes.

Q. Right, so that's the first time this particular condition can safely be diagnosed, you think? A. Yes, although I must qualify it by saying I don't have a full history of a PTSD at that time and on the basis of the symptoms that I've recorded here, one can't diagnose a full PTSD--

Q. But you did just say you think he did suffer from that-- A. Yes.

Q. --in 1985? A. Yes, that's right.

Q. All right. Now, then you say, and perhaps this is part of the reason, 'He developed a number of things', that you enumerate, four things, now they are consistent with PTSD? A. Three are consistent, the first three.

Q. Yes? A. Depression of the mood is not a PTSD symptom--

Q. No, but concomitant with it-- A. Yes, concomitant." 105 The trial judge asked Dr Klug whether the appellant knew what PTSD symptoms were. Dr Klug said that by the time he interviewed the appellant, he had a reasonable understanding of PTSD. In response to a further question by the trial judge, Dr Klug said he would take "with a grain of salt" a patient "expressing views about symptoms of a psychiatric disorder from the patient's personal point of view". However, he said that patients well-educated about the nature of their symptoms could retrospectively give "a reasonable view" about the past and present nature of those symptoms. 106 Still under questioning by the trial judge, Dr Klug said he believed the appellant's symptoms waxed and waned in the mid-1990s. 107 The trial judge continued with his questioning: "Q. We've now established, this is coming back to [p 6 of Dr Klug's report] that you're of the view [the appellant] suffered PTSD in 1985 as a result of [the Bathurst incident]. You've also told us today that in your view the events of mid-1995 caused a fresh PTSD situation? A. Yes.

Q. How does that fit in with describing the original [PTSD in 1985] as in partial remission and secondly the way you've phrased your opinion on page 6."

The opinion to which his Honour was referring was expressed by Dr Klug on p 6 of his report in the following terms: "There is little doubt that [the appellant] has suffered chronic psychiatric symptoms over many years. These have essentially been anxiety based and I believe he has suffered from a chronic post-traumatic stress disorder . This has at times been in partial remission" (Original emphasis). 108 Dr Klug responded to his Honour's question as follows: "… I believe that his PTSD after the Bathurst [incident] was probably an acute PTSD, that is, it was relatively short-lived and that he had an extended period of his symptoms being in remission. He functioned normally for a decade and there was, from the history I've obtained, no indication that he was - no clear indication that he was psychiatrically unwell during that period. In the mid-1990s I believe he developed PTSD symptoms probably full syndrome, which then waxed and waned over time, I think with his transfer it went at least into partial remission and - but that he was functioning in a compensated [state] most of that time. In other words he had a lot of symptoms that had personality assets which allowed him to continue to function, but that with the situation of the [2001 court case], he became overwhelmed with his symptoms and became profoundly unwell in terms of his behaviour and his ability to function in normal day to day situations." 109 His Honour then asked the following three questions: "Q. All right, so whatever [the Bathurst incident] caused, its cleared up and it's gone away? A. That's what I believe, yes, your Honour.

Q. That's what you believe. Then mid-1995 have the impact on him that you described, but he's able to continue functioning and indeed after his transfer things improve? A. Yes, your Honour.

Q. Is it your view that, and forgive me if I seem to fall into the vernacular, but what pushed him over the edge was the [2001 court case]? A. That's correct." 110 It is relevant to note that before the trial judge commenced his consideration of Dr Klug's evidence, he had already reached his conclusion as to the "consistent picture" that emerged from the reports of the other medical professionals. 111 His Honour had also noted that the appellant said that he had been truthful with the doctors in giving his history. His Honour then commenced his consideration of Dr Klug's evidence with the comment: "In the light of that it is necessary to consider with some care the evidence of Dr. Klug who was called as a witness in the case." 112 I will return to Dr Klug's evidence in a moment, but I pause to reiterate that I have already explained, at [88] above, why the "consistent picture" his Honour found emerged from the medical reports was not an available finding. Accordingly, to the extent his Honour rejected Dr Klug's evidence on the basis that the appellant gave the doctor an inconsistent history in relation to symptoms in 1995 and 1996, his Honour's conclusion is not supported by the evidence. 113 Initially, when Dr Klug gave evidence, he said that one of the reasons the appellant developed symptoms was because of the appellant's perception of how the police service was treating him. Dr Klug readily accepted that that could have been the appellant's opinion, regardless of whether it was objectively the case. However, as Dr Klug's oral evidence progressed, he expressed his belief that the police service in fact did not encourage and provide support for the mental health of police officers and that there was a culture of heavy stigmatisation within the police service with respect to psychiatric illness. 114 Dr Klug was not cross-examined as to whether such views were baseless, or exhibited a bias, either against the police service or in favour of the appellant. Nonetheless, it was open to his Honour to consider that Dr Klug accepted complaints made by the appellant as established fact and that Dr Klug had formed his opinion on that basis. Strictly, for the purposes of an assessment of the appellant's medical condition, it was irrelevant whether the appellant had or had not been supported by the police service. An unfounded perception that he had been unsupported may have been as damaging to his mental health as would be the case if that was the fact. However, the question presently under consideration is whether his Honour erred in finding that Dr Klug was "partisan". If he was partisan, then there was a basis for his Honour to reject Dr Klug's opinion. 115 It is apparent that his Honour's finding that Dr Klug had become "partisan" was based upon his rejection of the appellant's claim that he had been "grossly unsupported" by the police service. However, there was evidence that supported Dr Klug's opinion as to the culture within the police force. Indeed, the evidence in this regard pointed in one direction. I have already referred to comments recorded in the 1992 Task Force Alpha Report (at [40]). Admittedly, that was old material. Inspector Faulkner agreed that the culture within the police service was that if someone went off on stress leave, they were regarded as a "wimp". He said that "it was changing but it had been the culture". That evidence is perhaps equivocal as to whether it was the culture in the period 1995 to 1997. However, any doubt about that is resolved by the evidence of Senior Constable Bottomley. Senior Constable Bottomley was stationed at Tamworth from about 1991 until his retirement in 2001. He said that the culture amongst the police officers at Tamworth was that if an officer took time off for stress leave, they were regarded as a "wimp". 116 In my opinion, the trial judge's findings that Dr Klug had become partisan and was accepting views expressed by the appellant as established fact, were against the other evidence in the case. The task of primary fact finding, including questions as to the admissibility of evidence, is particularly within a trial judge's province. Even without finding that Dr Klug was "partisan", his Honour could have rejected his evidence, although he would have had to explain his reasons for doing so. However, where evidence is rejected on a basis that is dubious, or where the trial judge does so without having regard to other relevant evidence in the case, the rejection calls for scrutiny. 117 It is possible that Dr Klug, in his professional capacity, did not have the necessary knowledge to enable him to make the comments he did as to the lack of support given by the police service to their employees with mental health issues. Nonetheless, there was evidence that validated his belief. A more satisfactory basis upon which to assess Dr Klug's evidence would be first to consider it in conjunction with the other medical evidence and then to have regard to the other evidence in the case. 118 I have already concluded that his Honour erred in his assessment of the other medical evidence. His Honour also did not consider the other evidence relating to the culture within the police service. Accordingly, I am of the opinion that the basis of his Honour's rejection of Dr Klug's evidence as "partisan" was flawed.

Third issue: did his Honour fail to consider causation? 119 The appellant complained that his Honour failed to consider, or give adequate consideration to, the evidence that tended to establish a causal relationship between the Laidlaw threats, and the appellant's ultimate condition in 2001. 120 The appellant's argument did not extend beyond the express terms of the relevant ground of appeal (ground 8) and accordingly the argument can be disposed of briefly. His Honour's finding on the medical evidence was that there was no injury in the period 1995 to 1997. It follows, therefore, that his Honour did not deal with this aspect of the appellant's case. Having succeeded on the first and second issues, the appellant must also succeed on this issue.

Fourth issue : did his Honour err in his approach and conclusion in relation to breach? 121 The resolution of the first, second and third issues on the appeal in favour of the appellant leaves the question whether the appellant established that the response of the police service in dealing with his application for transfer was reasonable in the circumstances. This issue raises the question whether the police service breached its duty of care to the respondent. 122 A reminder of basic principle is appropriate: see Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 where Mason J (Stephen and Aikin JJ agreeing), at [14] 47-48, said: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff ... If the answer be 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." 123 The trial judge held that the police service "cannot be regarded as being liable for any threats made by Laidlaw". The appellant did not assert otherwise. However, it is relevant to understand the context in which that finding was made. In the passage immediately preceding this finding, his Honour made his findings on the medical evidence. In particular, he rejected Dr Klug's evidence about any injury occurring in 1995 or 1996. His Honour then said that the evidence of Inspector Faulkner did not establish that the appellant's health was injured as a result of any breach of duty by the police service. The appellant complained that these findings demonstrated that his Honour misapprehended his case on liability. His case was that the police service breached its duty of care by failing to respond to his reports of the Laidlaw threats and his anxiety about such threats being carried out. The appellant contended that his Honour's misapprehension of his case was of itself sufficient error and that further analysis of this ground of appeal was unnecessary. 124 That may oversimplify the position. Although his Honour's finding related to breach, it is important to understand the basis upon which the law will recognise a duty of care in the case of psychiatric injury. In Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 McHugh, Gummow, Hayne and Heydon JJ said, at [35]: "The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable … [T]hat invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned." (Original emphasis) (Citations omitted)

As I discuss more fully below, there was evidence that the appellant was demonstrating observable signs of severe stress. 125 His Honour reiterated that there was "no basis upon which to criticise the [police service], no breach of duty and no act of negligence". In coming to that conclusion, his Honour made the following findings, each of which the appellant challenged: "I am not satisfied there were any other steps that the police service should realistically have taken"; "all that was required to be done to deal with the situation was done"; and "I reject the various allegations made on behalf of [the appellant] in relation to [the police service's] conduct after the threats made by Mr Laidlaw". 126 I have already referred to the portion of the passage in which these findings were made (see [47] above). However, having regard to the specific challenges to these findings, it is appropriate to revisit the passage in its entirety. It contains his Honour's reasons why there had been a sufficient response to the particular harm that the appellant alleged he suffered as a result of the Laidlaw threats. The passage was as follows: "After the service of the AVO threats to kill [the appellant] and other officers were reported in particular to Chief Inspector Middleton the senior officer at Tamworth and [the appellant] was made aware of them. The evidence, which I accept, was that these threats were discussed with [the appellant]. He was asked if he wished an AVO be taken out against Laidlaw. He rejected that suggestion. It was agreed that the situation would be kept under continuous review and [the appellant] indicated that he would exercise appropriate caution in going about his work and his private affairs. The evidence is that he did so. He said that he nailed up his windows at the house in which he lived, he always faced a doorway when he went out on social occasions and always checked outside his premises when he was leaving. I do not find any of that unusual. In the light of what he had been told they were in my view sensible and realistic steps to take. I am not satisfied there were any other steps that the police service should realistically have taken . There was nothing to suggest that [the appellant] required any particular medical attention or formal counselling and in my judgment all that was required to be done to deal with the situation was done. It is said that he should have been transferred much sooner than in fact he was. The evidence satisfied me that appropriate steps to achieve an appropriate transfer were taken and in particular Inspector Faulkner reassured [the appellant] that his transfer would take place . It is clear that [the appellant] became frustrated that it wasn't happening as soon as he would like but the urgency in my judgment was not that desperate because [the appellant] restricted his area of interest to the Northern Rivers in particular anywhere north of Lismore. Had he felt a pressing need or under a pressing threat then I would have expected him to say that he wished to be transferred anywhere not just to the Northern Rivers which it was common knowledge was a highly sought after area. Accordingly I reject the various allegations made on behalf of [the appellant] in relation to [the police service's] conduct after the threats made by Mr. Laidlaw, I find no basis upon which to criticise [the police service], no breach of duty and no act of negligence ." (Emphasis added) 127 The steps that his Honour characterised as a sufficient response by the police service were steps that the appellant himself undertook: he nailed up his windows; he kept his back to the wall when he was in social situations ("always faced a doorway"); and he checked outside his premises as he was leaving home. His Honour stated that he did not find "any of that unusual". Even if such steps were "not unusual", that would only be so in respect of a person who was in real fear for his personal safety. Further, even if those steps could be viewed as appropriate intermediate steps until some better response to the threat could be put in place, such a conclusion does not address the negligence alleged by the appellant, namely, that the police service breached its duty of care by negligently delaying in transferring him from Tamworth. The appellant complained that the trial judge failed to address the evidence that related to that case.

Evidence relating to transfer 128 Inspector Faulkner was the Staff Officer, Personnel for the Peel Police District in the period from July 1994 to July 1997 and was based at Tamworth. He said that during the period from 1995 to 1997, when the Laidlaw issue was in focus, he observed that the appellant was: "… certainly showing signs of stress in that he was … quite agitated. He was … not able to sit still, he was … moving around and raising a matter about Laidlaw constantly." 129 Other police officers observed changes in the appellant. Senior Constable Woods had heard Laidlaw make serious threats of harm including to take out the police station with a rocket launcher. He told the appellant that Laidlaw had a strong hatred for the appellant and wanted to kill him. He also told the appellant that it seemed that that Laidlaw still had a large cache of guns. Senior Constable Woods said that he observed a change in the appellant, that he seemed to have lost confidence in himself and was "not the open man that he used to be". 130 Chief Inspector Hardwick gave evidence that the appellant had expressed concerns to him for his own safety. He agreed that he had supported the appellant's application for transfer because he considered that would help the appellant's "general overall feelings about the matter". 131 Inspector Faulkner said that the appellant spoke to him on almost a daily basis about his concerns relating to Laidlaw, as well as his concerns about his former de facto wife and his desire to relocate. Inspector Faulkner said, however, that the appellant's work was not affected and that he was still focussed quite strongly on the objectives he had to achieve. 132 Inspector Faulkner said he had considered whether the appellant needed some sort of professional help, but had not taken any steps in that regard, as he "was very much assuming the role [himself] as a sounding board" for the appellant. Inspector Faulkner said that for that reason, he didn't think any external steps needed to be taken and that he believed he was helping the appellant considerably. In addition, there were one or two other trained peer support officers at Tamworth and between those persons and himself, support was provided. He commented that the appellant was "such a strong character" and that he seemed to be handling matters reasonably well, particularly with the prospect of relocation. 133 Inspector Faulkner said that the appellant was frustrated when his transfer was rejected, as he wanted to go "sooner rather than later". He added: "But at no point was … it ever not going to happen. It was always going to be approved and take place … one way or another …" 134 Inspector Faulkner emphasised that he had told the appellant that he would be transferred and he was very confident that approval for that would be forthcoming. He said, however, that there was "some work to be done … [to find] a suitable vacancy and [proceed] with it". He agreed, however, that it should not have been necessary to find a suitable vacancy, and if there were genuine reasons for a transfer, such as a police officer fearing for his safety, the police service had a capacity to transfer whether there was a vacancy or not. Inspector Faulkner said that often happened, although a little later in his evidence he said it was extremely rare to transfer a person unless there was a vacancy. In explanation of this last answer, he said that it was not uncommon for a local region to have a problem with central command approving a transfer. He said that he was not, therefore, "fazed" by the refusal of the transfer because he "was confident that we would subsequently identify a suitable vacancy and transfer [the appellant]". 135 Inspector Faulkner considered the appellant was showing signs of stress sufficient to cause him concern, notwithstanding that the appellant was "a very strong man". Inspector Faulkner formed the view that if the appellant were transferred it would significantly lessen the stressors. He was also of the opinion that if it was determined that the appellant should remain in Tamworth for any prolonged period of time, then his condition could get worse. 136 Inspector Faulkner left Tamworth in July 1997. He said at that time, he was reasonably confident that the appellant would obtain a transfer and that it was far preferable that he be transferred, than remain in Tamworth. 137 Inspector Faulkner was asked what he would have done, had he remained in a senior position at Tamworth and become aware that the appellant was not to be transferred. He said that in the circumstances which prevailed then, if the appellant was to remain, he thought that: "… the whole matter would have had to have been stepped up a level. If he was to remain in Tamworth I think that further steps would have to be taken if he was not to be relocated."

Inspector Faulkner identified such steps as being a " threat assessment at the very least ". It is at least arguable that that assessment should have been done as soon as the 1997 Commander's Guide came into effect, or at the least, consideration should have been given to undertaking such an assessment, notwithstanding the appellant's application for transfer being extant. 138 Inspector Faulkner's evidence demonstrates that the police service, through its most senior officer in charge of personnel in the Tamworth area, was well aware that the respondent's mental health was being seriously affected by the Laidlaw threats and that there was a risk that his condition would deteriorate if he was not transferred. Inspector Faulkner's belief that the appellant was still able to do his job does not diminish the obligation that the police service had to respond to the harm that the appellant was suffering. Inspector Faulkner described the appellant's behaviour as exhibiting a high level of symptomatology. Whilst Inspector Faulkner described it as "stress", they were symptoms that should have put a reasonable employer on notice that the appellant was at risk of a foreseeable psychiatric injury which called for a reasonable response. 139 The appellant submitted that there was a reasonable response available, as there was a system of transfers that operated to another region notwithstanding there was no specific vacancy. A transfer could be arranged as part of what is known as "over-strength". I will refer to that in a moment. Before doing so however, consideration needs to be given to the application that was made and to the police service's response to it. 140 The application sought a transfer to the position of "duty officer (or other)" in the Northern Rivers Region. I have already set out the basis on which Chief Inspector Delamont rejected the application (at [30]). Chief Inspector Delamont made no reference to the fact the appellant was prepared to transfer to a position other than as "duty officer", which might indicate that the he did not give full consideration to the application. Leaving that aside, it is apparent from the manner in which Chief Inspector Delamont commented upon the application that even if there were vacancies in the Northern Rivers region, the appellant would not have been given a position at that time because of the restructure. 141 It is also apparent that even after the restructure, the appellant's application was not going to be dealt with on the basis of his situation in Tamworth regarding Laidlaw. Rather, he was told that in due course he would be eligible to apply for a Duty Officer position in the area and that such application would be dealt with on its merits. 142 The appellant contended that this was not an adequate response and that the reasonable response would have been to transfer him "over-strength". 143 Evidence of the availability of the practice of "over-strength" transfers was given by Chief Inspector Middleton. At the time of his retirement, Chief Inspector Middleton was the Patrol Commander at Tamworth, but in the months immediately prior to his retirement he was the Acting District Commander at Bathurst. Chief Inspector Middleton described the appellant as "head and shoulders" above the other Senior Sergeants at Tamworth. 144 Chief Inspector Middleton was questioned about the practice relating to transfers in the police service and said that, generally speaking, the availability of positions affected whether officers were able to transfer to another area. There were exceptions, however, which meant that persons could be transferred notwithstanding the absence of a vacancy. This practice was described as an "over strength" transfer. On occasions, a transfer would be approved in anticipation that at some future time a vacancy would be created or become available. He said that an "over strength" transfer could occur for "any number of reasons, family issues, whatever". He recalled that at the time the appellant was transferred to Tamworth, he was transferred "over strength", but with a view to there being pending retirements. 145 Given the terms of Chief Inspector Delamont's response, it is to be inferred that he did not give any consideration to the use of this system in respect of the appellant's application. 146 His Honour considered that Inspector Faulkner's reassurance that the transfer would take place was a sufficient response to the risk of harm to the appellant's mental health. It is a little unclear whether his Honour's reasoning was that Inspector Faulkner's reassurance was itself a sufficient response, or whether he accepted Inspector Faulkner's view that a transfer would take place, so that the police service's response to the application was sufficient. Whichever is the correct interpretation, it does not overcome the basic challenge the appellant makes to the trial judge's reasoning, namely that his Honour failed to deal with that part of the of the appellant's case that there was a reasonable response to his application available to the police service, namely to transfer him "over-strength". I would also add that his Honour failed to assess the underlying basis of any reassurance given by Inspector Faulkner, when he did not have the authority to approve the transfer. 147 One further consideration should be raised in respect of the application for transfer. His Honour stated that if the appellant felt under any pressing need or threat, he would not have confined his application for transfer to the Northern Rivers. The appellant was cross-examined about this and explained that: " … in previous applications by police when they apply for a position of transfer and there's no vacancy available they are told where there are vacancies available."

His Honour made no reference to this evidence, which if accepted, would have been a reasonable refutation of the police service's defensive case on that question. 148 In my opinion, the appellant has established that in concluding that appropriate steps had been taken for his welfare, the trial judge failed to give adequate consideration to the appellant's case on breach and, to the extent that he gave consideration to the evidence relating to the application for transfer, overlooked significant aspects of the evidence that were relevant to that issue. The appellant has therefore succeeded on the fourth issue. 149 The appellant also complained that his Honour discounted certain aspects of his evidence and, in particular, that his Honour had placed emphasis upon the fact the appellant did not say that the events of 1995 to 1997 had caused him to suffer anything the appellant would regard as an illness. Having regard to the conclusions reached on the principal issues on the appeal, it is not necessary to deal with the ground of appeal that raised this complaint (ground 5). As I explain below, there is to be a new trial and all matters of evidence will need to be determined on the rehearing. 150 The appellant sought a new trial on all issues. That result is inevitable. The trial judge did not assess damages, so that matter has to be remitted, in any event. The trial judge also did not deal with certain aspects of the appellant's case on breach and causation. Both those issues raise factual questions in respect of which there were no primary findings of the trial judge. The appellant's credit is central to each of those issues. Dr Klug's credit is also in issue. In those circumstances, the appropriate order is that there should be a new trial: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402. 151 I propose the following orders:

Set aside the verdict for the respondent/defendant;

Order that the matter be remitted to the District Court for rehearing; and

Order that the respondent pay the appellant's costs of the appeal. The costs of the first trial are to abide the outcome of the remitted hearing and are to be in the discretion of the trial judge conducting the remitted hearing. 152 CAMPBELL JA: I agree with Beazley JA. 153 MACFARLAN JA: I agree with Beazley JA. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION: Patrech v State of New South Wales [2009] NSWCA 118

Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 CASES CITED: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

A satisfactory basis upon which a trial judge might assess a medical expert's evidence would be first to consider it in conjunction with the other medical evidence and then to have regard to the other evidence in the case: [118]
A new trial should be ordered where an appellate court finds that a trial judge erred in his or her approach to the evidence and did not deal with certain aspects of a case which raise factual questions in respect of which there are no primary findings: [151] Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402 (cited)

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