Paul v State of New South Wales

District Court of NSW|2023-06-09

Background

Stress has been recognised as potentially debilitating to police officers since the late 1970s (Exhibit 1 pp. 1452-1460; Exhibit G, pp.40 - 69). As policing has changed over the decades, the adequacy of the assistance put in place to support them in the performance of their duties has been repeatedly tested. Those changes have involved not only the subject matter of their work but also the sheer size of the criminality involved (not only in terms of number of offenders and offences, but geographically) but also the technology required to cope with what were often vast amounts of documentation and new means of communication such as mobile phones which meant that police were contactable on an almost constant basis.
The duty of care owed to police officers is helpfully summarised by Macfarlan JA in S v State of New South Wales [2009] NSWCA 164 at [58] - [60] and by Sackville AJA in Sills v State of New South Wales at [114] - [117]. The parties' submissions as to how the court should determine this duty are set out in detail below. It is agreed that, when addressing whether the Defendant has breached the duty of care it owed to the Plaintiff, regard should be had to the system of work, the provision of warnings and notices and the circumstances of particular kinds of employment such as police work (Kozarov v Victoria (2022) 273 CLR 115; [2022] HCA 12 at [6] and [19] per Kiefel CJ and Keane J and at [27] - [28] per Gageler and Gleeson JJ; many of their Honours' observations on workload and work system-related stress are also apposite).

The Royal Commission

Institutional physical and sexual abuse of young and/or vulnerable persons became more widely known about and discussed in the mid to late twentieth century. As evidence of widespread abuse became better known, thanks to new methods of communication and changes to policing, calls for inquiries were made, not only in Australia at State and Commonwealth level, but in other countries, such as New Zealand and Canada. This resulted, in Australia, in the setting up of The Royal Commission into Institutional Responses to Child Sex Abuse on 15 November 2012. A final report on 15 December 2017 included a total of 57 separate case studies: https://www.childabuseroyalcommission.gov.au/; hereafter "the Royal Commission") and there were 2,575 referrals to authorities (including police) which resulted in a series of criminal prosecutions. The evidence was reported in the media on a very regular basis and the importance of this landmark investigation and its final report is widely accepted.
Case Study number 7 was a public hearing which examined the experience of persons who had been sexually abused as children for the period 1950-1974 at The Parramatta Girls' Training School and The Institution for Girls in Hay. This investigation was referred to the Plaintiff, as the officer in charge (Defendant's submissions, paragraph 23), in February 2014. Strike Force Bilvo (hereafter "Bilvo") was set up for the purpose of investigating historical sexual abuse claims, mostly at the Parramatta Girls' Training School, and this took the Plaintiff away from his other policing work for some years (Tcpt, 29 May 2023, pp 34 - 35).
When the Plaintiff was put in charge of Bilvo, it was thought that there would be only a few victims, but by its end Bilvo had uncovered 70 victims (Tcpt, 29 May 2023, p 34) at the hands of a total of eleven perpetrators, all but two of whom were by now deceased. Criminal proceedings against those two perpetrators resulted in lengthy criminal trials followed by convictions (see R v Valentine [2019] NSWDC 201). Shortly after the second of these criminal trials the Plaintiff went on leave and, on medical advice, has not returned to work since.
The Strike Force Bilvo leadership was the final major police work carried out by the Plaintiff, although he played an important role in investigating a series of stress-triggering incidents while at the Tuggerah Police Station. Some of the events described by the Plaintiff in his career prior to working on the Royal Commission (i.e. in 2014) are conceded to be traumatic (see incidents [22] and [73] as set out in the statement of claim (Exhibit A, pp.108-109)). The vast majority of the evidence, however, relates to the Bilvo investigation.

The procedural history of the claim

These proceedings were listed for five days and were completed in seven days, with a two-day hiatus as a result of witness availability problems.
From the first day, there were, in relation to the Defendant, difficulties in terms of the witnesses to be called, subpoenae issued late and documents asserted to be belatedly produced. Since these are Work Injury Damages proceedings, where all the relevant material should be contained in the Pre-Filing documentation, this was unexpected. The late gathering of documentary material was a particular problem. The Defendant completely replaced all the witnesses who had been under subpoena with witnesses called at short notice of, at best, a few days. Some of these witnesses had had little time to reflect on the events in question, some or even all of which these witnesses confessed they had since forgotten. This had an impact on the reliability of their evidence.
It was unclear why these witnesses only came to light at short notice, given the many thousands of pages of material put before the Court. This seems to be a feature of cases of this kind. In Benic v New South Wales [2010] NSWSC 1039 ("Benic") at [145]ff, Garling J commented on the tender of "quite voluminous material to which little if any detailed reference was made in the course of submissions" (at [146]) and to the absence of cross-examination of a number of the witnesses. By contrast, in State of New South Wales v Briggs at [110], the Court noted that, unlike Benic, there was a paucity of material. In the present case, both these problems are evident; there is voluminous material but the vast bulk of it was not referred to at all, and most of the material relating to the WellCheck system, including the evidence of Ms Freeland and Ms Clark, was not in statement form or in the courtbook at all, and only obtained at the last minute.
Given these problems, I have been guided by Garling J's approach in Benic and have endeavoured to take a practical approach to the complete recasting of the Defendant's case (and, to a lesser extent, that of the Plaintiff) during the hearing. I am, however, at a much greater disadvantage than his Honour was, for three reasons.
The first is that in Benic, Garling J had the benefit of cross-examination of the medical witnesses (including a conclave), whereas all medical material was simply tendered by both parties. In addition, the Defendant's medical evidence was of a limited nature, in that its expert witness, Professor Tennant, never saw the Plaintiff; his report consists of a summary of the Plaintiff's medical reports and the occasional pungent critique. That is the way that Professor Tennant has given evidence before, but he is generally cross-examined (Sills v State of New South Wales at [289]), in circumstances where there is cross-examination of other experts (Doherty v State of New South Wales [2010] NSWSC 450 at [235]).
The second reason is that, although the psychologist who treated the Bilvo officers was called and cross-examined, no report from her was served and the reliance upon her evidence is that of a lay, not an expert, witness. However, as a lay witness, she was of little assistance on non-expert issues as she had no recollection of the Plaintiff or of his team, as well as no relevant documentation.
The third reason is that very late production (during the hearing) of relevant documentation by the Defendant and the circumstances in which Ms Clark and Ms Freeland were only located at the time of or shortly after Inspector Yapp, the Plaintiff and his wife had given evidence meant that material contained in their evidence could not be put to the Plaintiff or Inspector Yapp, such as whether they understood that the assistance provided was not actually a WellCheck referral, whether it was an EAP referral, or whether it was something else. Mr Morris SC has not taken any Browne v Dunn (Browne v Dunn (1894) 6 R 67) points, but the result of these late changes in the evidence is that there is much inconsistent evidence to be considered, in circumstances where the case the parties ran deviated from the pleadings and, in the case of the Defendant, included an unpleaded defence of vicarious liability reliant upon recent English authority which is not part of the law in Australia.
The cumulative effect of these factors has been that, as was feared in Benic, a long judgment has been necessary in order to set out all the evidence in detail and how this evidence came to change during the hearing. Regrettably, this judgment is also highly repetitious. I am conscious of the Court of Appeal's warnings in Digi-Tech (Australia) v Brand [2004] NSWCA 58 at [282]-[291] and George Mkari by his Next Friend Youssef Mkari v Daniel Meza [2005] NSWCA 136 about the undesirability of lengthy judgments, particularly at inferior court level, but the manner in which the case was presented by the Defendant requires a degree of repetition of explanation because of the factors set out above.

The claim for negligence

As noted above, the parties are agreed as to the relevant principles of law.

The nature and scope of the duty of care

The duty of care must be identified as precisely as is possible, but too much precision can lead to "unrealistically precise findings" (Horne v J K Williams Contracting Pty Ltd [2023] NSWCA 58 at [8] and [35] per Basten AJA).
The Plaintiff has carefully delineated that nature and scope of the duty of care in his written submissions (paragraphs 7-23) and sets out the duty owed as follows: 1. The Defendant has a duty to identify traumatic incidents that may be capable of causing psychological harm, recording that incident and providing advice to a police officer about the signs and symptoms of psychological stress or psychiatric injury, so they are better educated to seek help if they need it. 2. The Defendant ought specifically to respond to complaints or disclosures of ill health that may be consistent with psychological or psychiatric injury brought about by the nature and conditions of the officer's work given the obvious exposure to trauma. 3. The Defendant owed an ongoing duty to identify and record critical or traumatic events so as to provide a baseline for psychological assessment. 4. In the present case, the Defendant ought to have recognised the particular risk of psychological injury posed by an enquiry into historical sexual abuse at a government institution of the massive proportions clearly likely from the announcement of the inquiry. The Defendant should have considered not only whether existing resources were available but also should have ensured that the following systems, already in use for other officers at high risk, were instituted: 1. Psychological screening; 2. Psychometric testing; 3. Quarterly WellChecks (being one on one assessments with a psychologist); and 4. Three-yearly rotation. 1. The particular risk referred to in (d) above was known to the Defendant as a consequence of its own internal reviews as to the risks of psychological injury to officers posed by duties such as those that the Plaintiff was performing (Exhibit M, p.26, "10.2 Staff based risks") and in particular noted:

Psychological injury to staff as a result of over exposure to material of a confronting or distressing nature.
Psychological injury to staff as a result of excessive workload or burnout.
Inability to provide an adequate level of response to child abuse due to reduced availability of staff as a result of workplace injuries such as those outlined above.
The "tipping point" scenario - staff going off sick because staff are going off sick.
Where there is insufficient capacity to replace absent staff the work burden on remaining staff increases, resulting in burn out and further abstention from work.
Inexperience of staff, inadequate supervision and limited mentoring to improve standards. 1. The Defendant owed a duty to provide adequate training and instruction, or take appropriate steps to avoid the psychological stress brought about by over work which could be an additional psychological stressors, and to ensure the police office had sufficient time for psychological recovery. 2. The Defendant owed a duty not to introduce further traumatic events when the police officer was already under psychological distress from a prolonged and public investigation into institutional abuse and increasing workload. 3. The Defendant had an obligation to respond to reports of psychological distress by the officer, or excessive sick leave without a medical certification.

If the duty is put at this level of precision, the dangers warned of in Horne v J K Williams Contracting Pty Ltd of unrealistically precise findings requiring to be made is apparent. As was the case in Horne v J K Williams Contracting Pty Ltd, the Defendant submitted the criteria provided by the Plaintiff at paragraphs 7 -12 of the statement of claim (and, by inference, as set out in the submissions above), were "far too extensive and inconsistent with authority" (written submissions, paragraph 1).
However, definition of duty proposed by the Defendant erred on the other side, in that they were of undue breadth. Fortunately this can be accommodated, as Mr Baran submitted that the duty in question should be determined, in factual terms, on the basis that "this case really is only about whether or not the duty of care that was owed to the Plaintiff was discharged during Strike Force Bilvo, and nothing else" (paragraph 3). This makes the determination of the issue of duty much easier as it relates to a clear and narrow band of evidence of the system set up following the Plaintiff's suggestion of WellCheck; in this regard, the duty is similar to the special and narrow facts in S v State of New South Wales. This is important because, in relation to the numerically large body of police officers, breach of duty of care must be assessed in light of a postulated system that should have been devised, or a general instruction which should have been given, and which would probably have prevented the psychological injury (State of New South Wales v Briggs at [8], [31], [64]-[68], [96], [138]-[139] and [151]-[153]).
This means that I can determine the duty of care model proposed by the Defendant as well as the question of its discharge during Strike Force Bilvo, while factoring in the Plaintiff's state of mental health some time prior to as well as at the commencement of Strike Force Bilvo, as well as at and after its conclusion. This enables me to approach the question of breach in similar terms, as the Defendant submits that, both before and after the Strike Force Bilvo work and subsequent trials, the Defendant, although acknowledging that policing gives rise to a foreseeable risk of psychological injury (New South Wales v Fahy (2007) 232 CLR 486 at [60]; Benic v State of New South Wales at [17] - [20], [23] and [55] - [56]), discharged that duty to the Plaintiff and exercised reasonable care to guard against the risk of injury or of exacerbating pre-existing injury, but with particular regard to the Plaintiff's duties during Strike Force Bilvo.
As to the nature and extent of that duty, I make these findings in the context of the observations of Basten AJA in Horne v J K Williams Contracting Pty Ltd, but also noting the special category of foreseeability in relation to duty of care for police officers as set out in Kozarov v Victoria, in the passages identified above.

The Plaintiff's police career up to Strike Force Bilvo

The Plaintiff was an outstanding member of the Police from the time of his commencement of duties. He was highly thought of by his commanders (Exhibit G, pp 72, 77, 79, 82, 84, 103, and 104). He does not, however, have a spotless record. He was convicted of domestic violence offences arising from the circumstances in which, in 2003, his former wife came to the matrimonial home and had a confrontation with the Plaintiff and his girlfriend (who would later become his wife). This is a serious matter and I have given it the weight it deserves.
From the earliest days of his career, the Plaintiff was regularly exposed to distressing crime scenes. An early example of the confronting crime scenes he saw related to an incident in 2001: "Q. If I can just hand you a copy. A. Yep, just reading it. That pretty much sums up the event. I did have a physical altercation with the male after he took the knife out of his stomach when he was putting his hand into his wound and throwing blood and stuff at me. Aside from that, I guess, it sort of outlines what happened. Q. You say that you found the events to be very disturbing in paragraph 31. A. Yes. Q. Do you have any recollection today what happened to you that you found disturbing? A. I found the whole incident disturbing. I also found when I came back to the station - I was covered in blood, obviously, and I was told to write a statement about what had just occurred. Q. And did you have - both people survived the event, didn't they? A. Yes, they did. Q. And were you given a commendation for your performance? A. Yeah. Yes, I was. Q. Do you recall what that was? A. I think it was just a Local Area Commander's award for saving their lives, essentially." (Tcpt, 29 May 2023, p 28(20)-(43))
After this incident he had trouble sleeping and flashbacks. He began drinking increasing amounts of alcohol, but claimed he had received no advice about dealing with this incident or indeed others of a similar kind: "Q. Just before you go on, you said you got a commendation from the commissioner? A. I think it was just a local area commander. Q. So what discussion, if any, did you have with other police about this, and what advice, if any, was given to you? A. I wasn't given any advice, and I didn't have any discussion other than the incident itself. HER HONOUR: All right. Please continue, Mr Morris. MORRIS: Thank you, your Honour. WITNESS: Yeah, I remember that incident in paragraph 32. A farmer had shot himself in the head, and I had his two sons attend the morgue to do an identification, and one of the sons ran towards his father lying on the gurney and raised his fist to punch him, punch his father, and I had to restrain him before he hit his deceased father. MORRIS Q. And how did that make you feel? A. None of these things make you feel good. Imagine the worst trauma you've ever had in your life, and then do it for 20 years. I can't really explain how horrible it is. Q. And did anybody speak to you, any police officer speak to you or give you any advice after that incident? A. No." (Tcpt, 29 May 2023, p 29(19)-(47))
The Plaintiff was clearly deeply distressed by retailing these events and there was a short adjournment. When he was well enough to continue, Mr Baran said (Tcpt, 29 May 2023, p 30(43)): "BARAN: Your Honour, thank you for the time, just for the purpose of the transcript, can I just say this, that so far as the Defendant is concerned, up until 2016, subject to anything your Honour has to say about it, we don't require the Plaintiff to prove each and every traumatic incident and give evidence about it, so to speak."
I inquired if this would relate to issues in the Royal Commission, and Mr Baran stated that the first eighteen months of that period would be included in this concession. This spared the Plaintiff having to give hours of evidence of the series of events which were distressing (Tcpt, 29 May 2023, p 28). Even so, the Plaintiff became distressed again (Tcpt, 29 May 2023, p 48). Significantly, in my view, what had distressed him had been having to recount evidence that he had not received any assistance or advice in relation to these events: "Q. With these incidents that we talk about at these investigations you were going to, do you recall after any of them whether you spoke to anybody from the police force and were given any advice to do anything in relation to them? BARAN: Your Honour, I observe the - HER HONOUR: Beg your pardon? BARAN: I observe the witness is quite distressed." (Tcpt, 29 May 2023, p 48 (37))
The 2001 incident was the first real test of the Plaintiff, in that he contemplated resigning (Tcpt, 29 May 2023, p 29(10)). However, he continued to perform his duties at a high level, including time he spent as part of the Highway Patrol (Exhibit G, p.1 and 35 - Highway Patrol Officer of the Month Award 32) and later in the Drug Squad (Exhibit G, p.1).
Although he sought help during the period of time when he was under suspension and being charged in relation to the domestic violence issues in 2003, the Plaintiff did not thereafter seek counselling or other assistance over this time. He said that he thought he was coping. He continued to work while having problems sleeping and regularly consuming alcohol, but was also happily married and enjoying family life. He was able to complete his duties without difficulty, and to do so at a high level, which led to him being offered the very responsible task of heading one of the Strike Forces set up to investigate historic child sex abuse crimes for the Royal Commission.

Strike Force Bilvo is set up

After the Plaintiff set up Strike Force Bilvo in April 2014, the Plaintiff developed a rapid and observable change in his behaviour. By August 2014 he was exhibiting signs of aggression and social isolation that his wife, and later himself, observed. After a discussion with his wife in early August, he decided to approach his supervisor, Inspector Yapp, about counselling: "Q. At some point you made an approach to your supervisor, the crime commander, by the name of Yapp- A. Yes. Q. - is that correct? A. Yes. Q. What caused you to make that approach to him? A. I was having a bit of an argument with my wife one evening, and, you know, obviously, I wasn't reacting very well to certain things. I was angry and - a lot of the time. And she mentioned to me that the work I was doing was similar to what they did at sex crime squad, and she had these WellChecks and she thought we should have them too. She said to me, I think you should be doing the same thing, you're doing the same work. So, the next day I went and saw Mr Yapp and said, do you think we should be having these WellChecks. And he agreed and I guess he took it up from there. Q. When you spoke to your wife about it, had you been having difficulties in your marriage? A. More so than usual, we have - we have a good relationship, but yeah, it was a bit of a - a bumpy road, due to my behaviour, I guess. Q. Can you tell her Honour about what you remember about your behaviour at that time? A. I would - I would get angry very quickly. I'd prefer to sort of withdraw myself from - from the family in the house and I'd go sit in the garage or just spend time on my own. I sort of moved away from - from friends and any other sort of relationships. Yeah, I became quite withdrawn. Q. What about sleep? A. Yeah, sleep, I might get an - if I got two hours like in a row, that was a good night. I often woke up during the night. I'd walk around the house, checking all the doors were locked. I'd go back to bed. I would be up 40 minutes later doing the same thing. Yeah, I didn't sleep very well. Q. Were there times when you wouldn't go back to bed? A. Yeah, I wouldn't go back necessarily to - to my bedroom. I would lie on the couch or lie on the chair or something just on my own. Q. Do you recall any issues with dreams and so forth? A. One of the things I've never suffered from is nightmares, but I - cause I don't sleep, I think it's just constantly in my mind. I describe them as daymares in - my mind never stops in regards to things I've seen and things I've done. Maybe I don't sleep enough to get to the dream stage, I'm not sure, but I - I - one of the symptoms I don't have is nightmares. Q. Is what you're saying to her Honour that you're awake, but things are going through your mind. A. Yeah, my mind never stops, and to this day I - I still don't sleep. I - I still don't suffer nightmares, but when I'm awake, that's - that's when it's the hardest. Q. This discussion you had with your wife about WellChecks, had you ever heard of them before? A. No, no." (Tcpt, 29 May 2023, p 37(46) - p 38(43))
The Plaintiff raised all these matters of his own initiative with Inspector Yapp, including the behaviour at home which led his wife to make the suggestion. These frank disclosures had a powerful effect on Inspector Yapp, who immediately sent the following memorandum (Exhibit B) on 5 August 2014 recommending referrals of the whole Bilvo team to WellCheck: "ISSUE: Request for officers attached to Strike Force Bilvo (investigation into historical sexual abuse) attached to Parramatta Local Area Command to participate in the WellCheck program. BACKGROUND: WellCheck is a monitoring program involving a one on one session with a police psychologist on a regular basis including an annual psychometric assessment. It does not preclude a participant from accessing EAP or Trauma services. Investigators attached to SF Bilvo are involved in a protracted investigation involving historical sexual assault and abuse. The investigators have prolonged contact with the victims, and in the future it is anticipated also with offenders. In some cases the victims are divulging matters to Police that they have never spoken of previously. The Command understands the frequency of these sessions is every three (3) months and indicate that it will be mandatory for our nominated investigators to attend. COMMENT: The Command agrees that by our SF Bilvo Investigators participating in the WellCheck program, we are responsible for monitoring their attendance and assisting in co-ordinating appointments. The Strike Force staff are currently working from an office in the Ferguson Building adjoining the North West Metropolitan Region Office in Parramatta. The investigators are seconded from three different LACs, however the investigation and oversight is directly via Parramatta LAC. RECOMMENDATION: It is recommended that Parramatta Local Area Command Investigators listed below, participate in the WellCheck program. I nominate the Investigations Manager Detective Sergeant FENWICK to be the contact for appointments and to monitor attendance."
The Plaintiff's initiative in setting up this counselling scheme for Bilvo team members is confirmed by contemporaneous accounts he prepared of his workplan: "Early on in the investigation I became aware of the nature and extent of the sexual abuse that investigators were being exposed to whilst completing statements of complaint with victims. I deemed it appropriate to have SF Bilvo investigators receive 'wellness' checks on a regular basis. I presented my thoughts on the issue to the Crime Manager in a logical discussion and sought a commitment from him to have a counsellor made available to assess the psychological welfare of staff involved in the investigation. The Crime Manager took up the cause and each SF Bilvo staff member now has a psychological 'wellness' check every three months. My leadership qualities, presentation of facts and focus on the 1391 situation inspired the Crime Manager to have confidence in, and agree with my opinion relating to staff welfare. With the Crime Manager's assistance the common goal of ensuring staff welfare is kept in focus and monitored was achieved." (Defendant's Court Book Exhibit 1, pp 376-377)
No one had given any prior thought to counselling of the team or of the Plaintiff, and there was no assessment or other recommendation for assistance of the Plaintiff or his team members even after they commenced work on Bilvo.
WellCheck was approved by Dean R Smith, the Operations Manager in the North West Metro Region NSW. He sent an email to Inspector Yapp and Wayne Cox of 5 August 2014, the same date as Inspector Yapp's report (Exhibit B), raising the same concerns: "Det Insp Yapp, Given the nature of the Investigation and possible length of time officers may be involved, it may be prudent to schedule or register our Officers involved in Strike Force Bilvo in the WellCheck program. Can you please consider this as part of the Management and oversight of this Strike Force. I am happy to assist with registering the Investigators. Thanks Dean Smith"
As was the case with Mrs Paul, Mr Smith had picked up on the two key features of Bilvo: the "nature" of the investigation and the size ("length of time"). A reply from Mr Cox confirmed that "Steve is setting this up" (Exhibit G, p. 54).
Inspector Yapp wrote to Pamela Freeland, the EAP manager, on 5 August 2014 as follows: "Hi Pam, I would like to discuss inclusion of some investigators in the WellCheck program. They are on a SF investigation historical sexual assault and abuse, stemming from the Royal Commission. Could you please give me a call to discuss at your convenience? Thank you Steven"
Inspector Yapp wrote the same day to Mr Cox and Mr Smith, confirming he had spoken to "the Psych unit", submitted a report and organised liaison with the director.
Ms Freeland replied the following day: "Hi Stephen, Further to our telephone conversation, I have spoken with Greg Prescott, DTC Trauma Manager and he will confirm with me but either himself or Tahnee Schulz, another psychologist experienced in the area of abuse, will be in attendance on August 20. After people have been seen, we will then assess a frequency from there and that may vary depending on what is happening with their investigations at the time. The group will be addressed as a group and then seen one on one. Can you please advise the address and who the contact will be on the day-is that yourself? Does this meet your needs?"
What did this involve? According to the Child Abuse Squad Welfare Framework, WellCheck normally included tests even before officers were included in the team, so that their suitability for recruitment could be tested (Exhibit G, p. 58). This would include psychometric testing and face to face interview. It was clearly too late for that, and for the workplace induction process (p. 58), as Bilvo was already some months into full operation. However, it was not too late for the eight early intervention and prevention tests (set out at p. 58) to be deployed, namely: 1. Consent Form signed by the officer regarding limits of confidentiality prior to entering WellCheck process to ensure appropriate workplace support. 2. Quarterly WellChecks with all officers attached to the CAS; based on interview and assessments. 3. WellCheck psychologists may schedule an interim WellCheck as required. 4. Annual psychological assessment included in the WellCheck process. 5. Call by WellCheck psychologist to the Zone Manager to provide psychologist with relevant information prior to the WellCheck. 6. WellCheck attendance monitored through the Command Management Framework (CMF). 7. Development of self-care plans. 8. Feedback to Command by psychologists as required.
This program was supported by a number of "other support strategies" (Exhibit G, p. 59), such as rotation, flexible work practices such as part time work to ensure work/life balance and the like. It was an important program, as the evidence of Mrs Paul, a participant because of her sex crime policing duties, made clear.

Mrs Paul's evidence about WellCheck

Mrs Paul was not only the Plaintiff's wife, but a detective working in sex abuse crimes areas in a specialist unit (Tcpt, 30 May 2023, pp 145 and 147). Her evidence contains valuable insights which would have, and should have, been apparent to other police officers involved in the setting up of the selection of police for work in relation to the Royal Commission. The first of these related to her observations of immediate changes to the Plaintiff after starting work on Bilvo: 1. First, she observed that the work the Plaintiff was doing was comparable, in terms of subject-matter, to the work of sex crimes investigators such as herself. 2. Second, she saw that the Plaintiff had been given what she called "a job of that enormity", telling words to use about the Royal Commission in general, and the Plaintiff's work in particular. 3. Third, she saw changes to the Plaintiff almost straight away after his appointment, and it was those changes which led her to talk to him about WellCheck.
Mrs Paul knew about WellCheck because she was herself a participant in this scheme. Although she had not been screened prior to her permanent position, when she was assigned to the team she was sent for psychometric testing and a consultation with a psychologist (Tcpt, 30 May 2023, p 146).
Mrs Paul gave corroborative evidence about her husband's positive reaction to her raising the need for a referral to WellCheck: "Q. Did you say anything to him about work? A. When you're saying work, are you talking about Bilvo? Q. Yeah. About the time of Bilvo. A. Yeah, we spoke a lot about Bilvo. Q. Did you say anything to him about doing something - raising something with his commanders at Bilvo? A. Well, I've - I didn't think it was fair that he had - he had been given a job to that enormity and not being offered what we were given on the floor. Q. What was that? A. WellChecks. Q. WellChecks. A. Yeah." (Tcpt, 30 May 2023, p 150(25) - (40))
Mrs Paul thought it was unfair, given the enormity of the task, that her husband was not being offered what she was being given "on the floor", namely the WellCheck system. She observed her husband receiving telephone calls from victims, some of them distressed to the point of being suicidal, and she observed the Plaintiff bringing his work home with him. Although her suggestions initially "fell on deaf ears a lot" (Tcpt, 30 May 2023, p 150), the Plaintiff did respond relatively quickly, in that he raised the WellCheck system with Inspector Yapp early in August 2014.

WellCheck

What was "WellCheck", how did it come to be set up, why had it not been put in place before Task Force was set up, and was it put into place at all?
To answer the first two of these questions, the police system of work evolved over the decades, a progression covered by the material tendered in the Defendant's Court Book (Exhibit 1, pp. 1452-1859) and in the Plaintiff's Non-Medical Court Book (Exhibit G, pp. 156 - 159). It was as an extension of these services, according to the Police Weekly of 30 January 2006, (Exhibit G, p. 32), that WellCheck was introduced, as an outgrowth from the earlier Employee Assistance Program (EAP), an external program, to ensure that officers exposed to "a higher risk of psychological harm" could receive specific assistance from the selection process onwards. From 2006 onwards it was to be provided to those at "the highest risk of injury" and was compulsory for all officers working in participating commands. These are listed on p. 115 of the Police Weekly; for example, one of these groups is the Child Protection & Sex Crimes Squad and another is the education services staff who teach courses.
What were the systems in place at and before WellCheck was put into place? Mr Morris SC has set this out at paragraphs 24 - 32. There is also a helpful summary in the report of A/Prof Michael Robertson of the systems for stress management in the police at paragraphs 47- 54: "47. Awareness of the effects of traumatic stress on the mental health of first responders has been well-recognised and subject of intervention since the late 1980s or early 1990s. In 1990, police psychologist Jan Westerink devised an operational manual for the provision of critical incident stress debriefing, although the literature in the field would later indicate that debriefing did not offer any actual protection against the development of post-traumatic stress disorder. 48. Following on from the NSWPF's own Task Force Alpha in 1992, in March 1997a document entitled "Occupational Stress in the NSW Police Service" recommended, inter alia: "That the principles and practice of trauma management be incorporated in all courses concerned with the supervision and management of staff in operational areas". This was clearly an imperative to improve mental health literacy within the Police Force. 49. In June 1999 the NSW Ombudsman tabled a report to the NSW State Parliament that identified the issue of traumatic stress exposure and recommended that the Police Force implement a system to ensure appropriate support be offered to all officers exposed to traumatic incidents and "as a matter of urgency" develop mechanisms and guides for managers to obtain reports about officers who exhibit signs that they are not coping and ensure that the information is used to assist and support officers. 50. This injunction seemed to make clear that there existed a framework to argue a reasonable standard of care towards the mental health of police officers on the part of the NSWPF existed. Specifically, to devise and implement a monitoring system of the psychological welfare of officers. 51. The NSW Ombudsman highlights the potential utility of a provision in the1990Police Act that enabled the NSWPF to direct police officers to compulsory medical assessments by the police medical officer (PMO) that might provide more expert advice as to the risk an officer faced from traumatic stress exposure encountered in the course of their duties. 52. In general terms, prevention of psychological injury, particularly post-traumatic stress disorder, falls into categories of primary prevention (reducing number of new cases), and secondary prevention (reducing severity and duration of established cases). 53. There is an assumed risk in all occupations that first responders acknowledge, and to any reasonable person there would seem little to be done to prevent exposure to traumatic events that are in the nature and conditions of operational policing. 54.On the issue of primary prevention, the scientific evidence is clear. The Cochrane Review into debriefing or psychological interventions following traumatic stress exposure demonstrates that there is no evidence that such interventions prevent the onset of PTSD1. This, in combination with the assumed risk most police officers take in entering this line of work, renders the concept of primary prevention as being almost impossible in the current circumstances."
How did this lead to WellCheck? According to the pamphlet distributed to potential participants and supervisors (Exhibit G, p. 25), WellCheck forms an integral part of the overall Health Support Program and has been introduced to help reduce the risk of psychological harm faced by employees working "in areas with the highest risk of injury." It involved participants in "a one-on-one session with an EAP Psychologist on a 3 or 4 monthly basis" to discuss their work, emotional reactions to their work and its interaction with family and personal life and the like. It was preventive strategy, not therapy; if more assistance than three-monthly counselling sessions was needed, this was provided via other programs, such as the general EAP counselling. This service was to be offered to all staff attached to specialist areas. Each command was to have an appointed officer to make sure that everyone attended the first session. The compulsory nature of attendance was laid out carefully and clearly.
As a result, WellCheck provided a "check" system of a directive nature, in that officers needing assistance were required not only to attend but to continue to attend: 1. Psychological screening including tests which determined suitability before duties were commenced; 2. Psychometric testing where necessary; 3. Quarterly WellChecks (being one on one assessments with a psychologist); 4. Three-yearly rotation of staff; and 5. Requirements for a supervising officer to monitor the system.
The WellCheck system was intended to be an advance, not a mere repackaging of earlier services, as its special features (set out below) make clear. The Plaintiff provided a list at paragraph 24 of the submissions, which I reproduce, with some additional references: 1. Stress for police officers had been identified as debilitating since the late 1970s (Exhibit 1, pp. 1452 - 1460; Exhibit G, pp 40 - 69). I would add that the increasing complexities in policing arising from changes to work methods and new approaches to criminal law issues has made a significant contribution, and that police failures to investigate sex crimes on juveniles in institutions was one of the reasons the Royal Commission was set up. 2. The inability for a police officer under stress to identify or admit problems must be taken into account (Exhibit 1, pp 1456, 1472, 1543, 1546, 1669, 1857; Exhibit G, p. 47, evidence of Ms Freeland at Tcpt, 7 June 2023, p 311 and of Inspector Yapp at 233). This is why WellCheck makes attendance obligatory and includes regular checkups at regular and frequent intervals, as well as requiring supervisors to keep an eye on how the service is being used. 3. The link between stress or psychological injury and exposure to trauma for police officers has been recognised not only by the Defendant but also by courts. This means that police supervisors such as Inspector Yapp have a special role to play and part of the system would need to be the inclusion of such information to supervisors such as Inspector Yapp. It was clear from his evidence that he had never received this information. In addition, there needed to be a coordinator for the counselling, a task Inspector Yapp assigned to Mr Fenwick, but which he acknowledged Mr Fenwick never carried out; the Plaintiff had to step into the breach and do this himself. 4. Systems such as WellCheck evolved from the longstanding need to have the signs of psychological stress identified by qualified persons (Exhibit 1, pp. 1455 - 1456, 1469 and 1718). Systems such as peer support or advice from a chaplain are different in nature in that they are supportive, and not diagnostic. I note that use of these services does not form part of WellCheck.
Mr Morris SC submits that the system sought in the memorandum of 4 August 2014 recognised the high risk of psychological harm to which the following other police system documents attest: 1. SCC Rotation Policy - Implementation at JIRT NSWPF 1 January 2005 (p 22, Exhibit G); 2. WellCheck - What you need to know NSWPF May 2005 (p 24, Exhibit G); 3. Police Weekly Article: WellCheck - for higher risk psychological harm Police Weekly 14 November 2005 (p 28, Exhibit G); 4. Police Weekly Article: Wellbeing Check-Up for high risk areas Police Weekly 30 January 2006 (p 32, Exhibit G); 5. The 2013 Human Resources Review of the Child Abuse Squad addressed not only the nature of the work undertaken but the workload. Page 21 of the review observed the average CAS officer carried 29 cases whilst the recommended amount was 15. This would immediately attract the attention of persons such as Inspector Yapp as it indicates the sheer volume of the workload.
To answer the third part of the question, while it would seem logical that the work of the Royal Commission investigations would fall within the parameters of WellCheck, that was not the case.
Although put into effect after the Strike Force had been set up, it would still have been possible for the officers in the team to have pre-assignment assessments. No such assessment was done. This in itself is asserted to be a breach of duty, in that an important feature of WellCheck is that the officer is assessed before commencing the duties in question. The Plaintiff argues that this failure means that his already high stress levels (which may have required special managing or even his removal as Team Leader) were not picked up at or shortly after the time when he began the Bilvo investigation.
An additional problem was the desultory and infrequent nature of the services provided by Ms Clark. She was the person who had to be chased up, and not the initiator of the regular checks required by WellCheck. Even in relation to those few sessions she provided, Ms Clark treated the Plaintiff like a colleague rather than a patient. She appears to have seen him alone once only. Over the following three to four years, there were several phone calls and emails, generally to arrange another appointment for the Bilvo officers.
The evidence shows that, while Inspector Yapp wrote the necessary request for the services, he knew little about it and did not fulfil the supervisory role required by the WellCheck system.
There was, however, a more fundamental problem, namely that the Plaintiff and the Bilvo team had never been included in WellCheck at all. Whatever Inspector Yapp knew or did not know about the program, he was certain in his evidence of one thing - that he had asked for the Bilvo officers to be included in WellCheck, and that he had received what appeared to be a positive reply.

The counselling provided was not WellCheck

The Defendant's case is that some counselling was provided, that whether it was WellCheck or some other service is irrelevant and that it was the Plaintiff's fault for not attending the Chaplain, seeking Peer Support help and/or further assistance from the EAP if Ms Clark's services were unsatisfactory.
The mere provision of a counselling or other psychiatric intervention service to be availed of does not discharge an employer from its duty of care to take reasonable steps to ensure a safe system of work is in place. In State of NSW v Coffey [2002] NSWCA 361, the Plaintiff was afforded a one-hour counselling session only, although could have asked for more. At [13], Meagher JA (with whom Heydon and Ipp JJA concurred) stated: "A psychologically injured worker often either does not know of his condition or else is too tired to ask for it. Moreover, there is High Court authority that merely to provide a service to be availed of at the will of the worker does not absolve one from performing one's duty of care to take reasonable steps to ensure that a safe system of work is in place: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301."
In State of NSW v Coffey, the Plaintiff was not a police officer but an employee of the Department of Housing, whose job involved exposure to violence, including murders. Even where there is no exposure to horrific events of the kind that the police are exposed to, the employer's obligation is to establish, maintain and enforce accident prevention, as this is the employer's responsibility: Unver v Liftronic Pty Limited [1999] NSWCA 275. This is all the more the case where the risk of psychiatric injury is acknowledged to be foreseeable, as is the case with police officers.

Inspector Yapp's role in asking for "WellCheck" support

Mr Yapp was particularly well-placed to assist the Plaintiff with work stress issues. Not only was he the direct supervisor of the Plaintiff, whom he saw on a daily basis (Tcpt, 1 June 2023, pp 198-200) but he had a degree in psychology and an understanding of the issues that were relevant to the unique kind of strike force that had to be set up because of the enormity of the investigation. It became apparent to him that there was "too much investigation, too much to manage on the floor of the office" and that the investigation had to be "rolled into something separate that they could concentrate on with extra resources"; this was what led to the creation of the strike force known as Bilvo (Tcpt, 1 June 2023, p 200).
What he did not do (until the Plaintiff approached him with the idea) was to include some form of welfare counselling as part of this plan. He told the Court that, as the Plaintiff's supervisor, if he had observed something that raised particular concern, what he would have done would be to speak to the Plaintiff and to follow a protocol of referral to the EAP service. Inspector Yapp said he knew about the police psychology and EAP services, as well as the peer support officers and the chaplain, and considered the Plaintiff would have known about these as well (Tcpt, 1 June 2023, p 201).
When asked the difference between WellCheck and EAP, Inspector Yapp said that EAP was not a service as such but just "a general reference that encompasses a range of resources" while WellCheck was "something that actually provided for the allocation of a psychologist that could actually meet individually with the staff" (Tcpt, 1 June 2023, p 204). It was because of his knowledge of these matters that, after the Plaintiff raised the idea, Inspector Yapp went "a step beyond" what he called "just the general availability of the welfare EAP program" (Tcpt, 1 June 2023, p 202) in the circumstances of Bilvo and specifically sought the assistance of WellCheck. This was because Bilvo was "delving into allegations of historical sexual abuse", "a prolonged investigation", dealing with victims with "trauma from the past" and other "problematic" matters (Tcpt, 1 June 2023, p 203).
Did the Plaintiff suggest WellCheck? In examination-in-chief, Mr Baran asked Inspector Yapp at Tcpt, 1 June 2023, p 204(33): "Q. In the circumstances of this particular strike force, these well-checks [sic] as I think you've described them, came about from a request by the officer in charge of the investigation. Mr Paul. A. I don't recall how it first arose."
However, the contemporaneous documentation from the Plaintiff makes it clear that the suggestion to employ WellCheck really did from the Plaintiff, and that it was only following this that Inspector Yapp wrote the request. Inspector Yapp, despite his knowledge of policy psychology services, had not thought of it (or of an EAP referral) before the Plaintiff spoke to him.
Inspector Yapp was asked why it was not possible for him simply to direct a police officer to go to EAP (Tcpt, 1 June 2023, p 204). He replied that assistance could be offered, and the officer could ring up a psychologist, but the only way for direction to attend to occur was for the WellCheck system to be put into place.
This line of questioning was part of Mr Baran's argument that the Plaintiff could go off on his own to counselling, or to see the chaplain or a support officer. However, there is a compelling reason why the Plaintiff going off for counselling or peer support on his own (either at his own behest or that of Inspector Yapp), and that is because the Plaintiff was not just seeking counselling assistance for himself but for his whole team. Mr Baran's failure to address the need for team counselling (which was a feature of WellCheck group sessions, where they were a precursor to the one on one sessions) is a major gap in terms of the Defendant's understanding of the Plaintiff's case. As the evidence of Mrs Paul and Ms Freeland confirmed, WellCheck was used to counsel groups of officers working together as well as for individual sessions. There is no evidence of any other counselling in the EAP offering a service of this kind.
Inspector Yapp was also asked about other resources, such as an email mass bulletin board called Nemesis which he described as having "thousands, tens upon thousands" of messages on it; he was unable to recall any particular message about EAP. He agreed that there was a work health and safety committee (or occupational health and safety committee) at Parramatta Command but knew little about it (Tcpt, 1 June 2023, p 206). There is no evidence that any of these resources could have assisted a team of police officers who needed group followed by individual counselling.
Out of all of the resources available - chaplains, peer support officers, ringing up a healthcare professional, occupations health and safety committee members - it was clear to Inspector Yapp, with his uniquely qualified background, that the WellCheck scheme was the way forward. That was the way that he took. On 5 August 2014 (after, I am satisfied, a conversation where the Plaintiff initiated this proposal), Mr Yapp wrote to Ms Freeland, who was the relevant contact for such a request: "Hi Pam, I would like to discuss inclusion of some investigators in the WellCheck program. They are on a SF investigation historical sexual assault and abuse, stemming from the Royal Commission. Could you please give me a call to discuss at your convenience?"
On 6 August 2014, Ms Freeland replied: "Hi Stephen, Further to our telephone conversation, I have spoken with Greg Prescott, DTC Trauma Manager and he will confirm with me but either himself or Tahnee Schulz, another psychologist experienced in the area of abuse, will be in attendance on August 20. After people have been seen, we will then assess a frequency from there and that may vary depending on what is happening with their investigations at the time. The group will be addressed as a group and then seen one on one. Can you please advise the address and who the contact will be on the day - is that yourself? Does this meet your needs?" (Emphasis added)
Inspector Yapp replied on the same date: "Hi Pam, Thank you for arranging that. I will be the contact on the day, my mobile is [redacted] (on the intranet) The location is Level 10, Ferguson Building Parramatta. If the attending pyschologist [sic] contacts me, I can sort out access/parking etc either there or at Parramatta Station. Just in case, an alternate contact is D/Sgt Tim PAUL (EN 79115), the team leader for the Strike Force, and is situated in the Ferguson building office."
Addressing the words highlighted above, Inspector Yapp was the contact person, and the Plaintiff was an "alternate" and the counselling was to be for the team, not just the Plaintiff.
Was this usual? Inspector Yapp was asked whether Ms Freeland was designing a customised WellCheck system or implementing the formal policy, but was unable to comment (Tcpt, 1 June 2023, p 229(41)).
The decision of Inspector Yapp to recommend the WellCheck system, and for it to be run in a manner analogous with officers in CAS or sex crimes was shortly thereafter affirmed by the following documents: 1. Child Abuse Squad Welfare Framework NSWPF 28 August 2014 (p 58, Exhibit G); 2. Endorsement NSWPF Rotation and Secondment Policy for CAS Detective A/Superintendent Andrew Waterman 7 January 2015 (p 60, Exhibit G); 3. Rotation and Secondment Policy for the Child Abuse Squad NSWPF - State Crime Command 11 February 2015 (p 63, Exhibit G).
Police counselling assistance provided a wide range of services. Was there anyone apart from Inspector Yapp who could have assisted, and were there any other resources that the Plaintiff should have been aware of?
According to Inspector Loneragan, the Inspector of Parramatta Local Area Command, there were also booklets and information. It is unclear whether this is part of WellCheck or not. On 6 August 2014, he sent the following email to his colleagues: "Colleagues, I have a limited number of C.A.R.E. (Career & Resilience Education Program) packages which include the following booklets: •Dr Kevin Gilmartin's book on "Emotional Survival for Law Enforcement" •Family Support Booklet - PANSW •Managing Psychological Fitness Handbook - PANSW •Know Your Rights & Obligations - PANSW •Social Media for Police - PANSW •Pre 88 HOD Procedures & Entitlements - PANSW •Pre 88 Medical Discharge Procedures & Entitlements - PANSW •Post 88 Workers Compensation Procedures & Entitlements - PANSW Feedback so far has been very positive. If you wish to have one of these packages they are on a first in best dressed basis. Either see me or send me an email and I will forward through internal mail. When all these stocks are exhausted I will attempt to procure more."
Mr Yapp replied on the same date: "If there is one spare I would like to place it in the SF Bilvo office...."
The relevance of some of this material to stress counselling (for example, social media and family support) is unknown. There was no evidence led of publications on stress being specifically provided to officers likely to be in need, other than these booklets which came in a package, and they were not tendered. There was no cross-examination of the Plaintiff about the desirability of reading these. There was no evidence about them from Inspector Yapp. The publications the Plaintiff was cross-examined about were articles in the Police Weekly and on the police intranet, but these were not part of WellCheck either.
Essentially, as the evidence shows, what Inspector Yapp was seeking was the best solution by far: a group session followed by, for individual officers, a one-on-one counselling session, to which the officers could be directed to go. There is no suggestion that the WellCheck program was not all-inclusive, or only available to the Plaintiff. As Inspector Yapp said, the context was "appropriate" (Tcpt, 1 June 2023, p 211).
Inspector Yapp told Ms Freeland that he was the supervisor. He had to make the recommendation and get it approved and then supervise its implementation.
Inspector Yapp said that the WellCheck manager and psychologists then had to determine how that system would be structured (Tcpt, 1 June 2023, p 211). It was not up to Inspector Yapp (or, for that matter, the Plaintiff) to say how it should be set up. Inspector Yapp said: "To my understanding the system was essentially the provision of a psychologist. Who would then go and meet with the investigators. And that was the essence of the well-check [sic] program. Yes. To my understanding. Yeah." (Tcpt, 1 June 2023, p 212(01)-(04)) (Emphasis added)
Even in the witness box, Inspector Yapp still thought that WellCheck was being offered.
In fact, as the previous section of this judgment sets out, WellCheck was able to offer much more than Inspector Yapp knew about. This included preliminary assessment for suitability for the role, rotations and the like. Looking at the list of features, Inspector Yapp agreed that this was "the kind of support that I would have wanted" (Tcpt, 1 June 2023, p 213). This included screening for all police officers on the strike force (and not just the officers under the Plaintiff's command), checking to ensure that ongoing assessment nipped problems in the bud, sessions every three to four months where a group session was followed by individual sessions and with particular emphasis on the Plaintiff, who was the first point of contact for the victims, and for a welfare officer to ensure that officers attended their first appointment. Inspector Yapp noted, in relation to this last step, that he had arranged for Sergeant Fenwick to fulfil this role, but that this did not occur (Tcpt, 1 June 2023, p 214).
This was the first of many gaps in the assistance which was proffered to the Bilvo taskforce. The next was the failure to provide a detailed overview about the officers so that the psychologist had some knowledge of what was involved. Mr Baran is critical of the organisation tasked with providing answers to documents under subpoena for failure to produce material, but this document would have been a police document, not a counselling document, and moreover one which I suspect that, although the proper officer would have been Inspector Yapp, could not have been prepared without the Plaintiff's assistance. Inspector Yapp agreed in cross-examination that if he had been aware of the need for this step he would have complied with it (Tcpt, 1 June 2023, p 215). He also agreed that, if he had been aware that attendance was compulsory and regular meetings required, he would have seen to these as well (Tcpt, 1 June 2023, p 215). He was not aware of these features when he sent the memorandum.
Despite having proposed the scheme, was the Plaintiff reluctant to participate in the counselling, whether it was WellCheck or not? This was a point to which Mr Baran often returned in his questioning and submissions.
In his statement, Inspector Yapp said that he noticed a degree of reluctance by the Plaintiff to attend "arising from, maybe, telephone conversations where I asked if they had a meeting or if staff were rostered to meet with the allocated psychologist" (Tcpt, 1 June 2023, p 216). However, he acknowledged that he had not made any reports to the command that anybody was not engaging in the spirit of the meeting. He did recall the Plaintiff's concern when Philip Marino had shown up to a counselling session dressed as a priest, that "quite possibly" this could have been a red flag for both Mr Marino and the Plaintiff (Tcpt, 1 June 2023, p 217), as the Plaintiff was complaining that the counselling session was being treated as a joke, rather than a sign that the Plaintiff was reluctant to attend counselling. There was no other evidence of conduct by the Plaintiff amounting to reluctance to attend or to participate in counselling.
In addition, if problems of this kind had occurred, Inspector Yapp had obligations as a supervisor, according to the WellCheck scheme, but he did not do anything. This was, as he admitted, in part because he did not know about these obligations. At Tcpt, 1 June 2023, p 217(8)-(31) he was asked: "Q. The problem you've got, Mr Yapp, and I appreciate it was, you didn't know about this. A. About? Q. You didn't know about the details of this WellCheck program. A. Specifically this - no. Yeah. Q. You'd heard the name, you recognised its importance, and you sort of delegated it upwards for somebody else to implement. Is that correct? A. I sorted out, would be the phrase I would use. Yeah. Q. You sorted out rather than having the responsibility of designing it. Correct? Designing the process. A. Yeah, no. I have - correct. Yes. Q. Or actually implementing the process. Correct? A. Yes. Q. And so far as you were concerned, so long as a psychologist was turning up, you were comfortably satisfied that the process you'd requested had been implemented. Correct? A. Yes. And my understanding was that that was what the appointment of the psychologist was for. Was to assist in providing the program and whatever was associated with it."
This lack of knowledge was despite his knowledge of the risk: "Q. I take it that in your position as Crime Commander, you were well aware of the risk of psychological harm caused by exposure to trauma. Is that correct? A. Generally? Q. Yes. A. Yes. Q. And specifically, correct? A. Yes. Yes." (Tcpt, 1 June 2023, p 217(33)-(41))
This was in addition to other gaps in the counselling procedure generally: "Q. If you go to exhibit G page 36. A. Yep. Q. That's headed Standard Operating Procedures. This is Lake Macquarie Local Area Command, and you'll see it's dated September 2000. I take it that you were not at Lake Macquarie Local Area Command at any stage? A. No. Q. Looking at this document - and feel free to read it to yourself - did you ever have equivalent protocols or procedures at the Parramatta Command when you were there? A. Equivalent procedures? Q. Yes. A. I - I haven't seen this type of form before. Q. What about the process of traumatic incident debrief report? Did you ever serve in any command where you had an obligation of a duty officer or team leader to register a traumatic incident form with regards to specific or general traumatic incidents that might cause psychological distress for officers? A. Certainly. Yes. Q. In terms of that process, at the other commands where you served, was that basic system that you would either talk to officers or review the COPS report that was generated and make a decision that this incident was of such a traumatic nature that it ought to be logged in order to enable some reference point for psychological help that any particular officer might suffer in the future? A. That's a fair summary. Q. If we go to page 42, this is a standard operating procedure. Are you familiar with this document? A. No, not this particular one. Q. This is dated 2007, take it from me. But just have a look at it. You see under the heading Procedure, it says, "The duty officer or team leader to attend all traumatic incidents where the welfare of staff might be in issue". A. Yes. Q. "The duty officer or team leader is to make an assessment to the best of their ability of the wellbeing of any officers and make a decision about interventions". You see that? A. Yes. Q. And that at the end of it, before the end of the shift, you've got to complete a critical or traumatic incident debrief form. A. Yes." (Tcpt, 1 June 2023, p 217(43) - p 218(38))
In other words, Inspector Yapp, in a position of management, had a role to play which he failed to take: "Q. You're familiar, in your experience with leadership positions, that this is a necessary part of looking after the safety of officers who have attended traumatic events, correct? A. Yes. Q. You, yourself, I take it, have had experience of attending traumatic incidents after they've occurred, speaking to the officers, and making a decision about whether they should head off to EAP, for instance? A. Whether it's recorded as a - a traumatic incident? Q. Yes. A. Yes. Q. But you, in a position of management, would, in your ordinary course and certainly since 2014, speak to officers and make a decision as to whether you might suggest they go and see the EAP, correct? A. Yes. Q. That you might suggest to them that they might like to see their GP or something like that if they're suffering from any problems. Correct? A. That may be something that comes up in a conversation, generally. Yes. Q. You'd have to use your judgment, wouldn't you? A. Of course. Of course. Q. Or, if you were actually concerned about their behaviour, you had the power to direct the officer, give a lawful direction of the officer to the PMO, correct? A. Through the commander. Yes. Q. You'd delegate. You'd speak to the commander and discuss the matter. A. That would be a delegated matter to the commander. Yes. Yeah. Q. Would you say to officers, in the course of such a conversation - and I'm talking from 2014 to date - would you say to officers something along the lines of, "Look, this is a traumatic event. If you notice, you know, ongoing nightmares or distress or anxiety or problems drinking and stuff, I suggest you go off and get some help". Something like that? A. Something like that might be part of a conversation and that conversation is one where the provisions of EAP would be generally made known, usually following a particular traumatic incident. Yeah. Q. But what you'd do is, in your ordinary course, they might not recognise as problems, but you'd give them some examples, like nightmares, insomnia. Stuff like that so they could recognise it for themselves and take themselves off for some help, correct? A. Sure. If that was part of the conversation, that would seem reasonable. I don't recall myself specifically talking to anybody about nightmares. But I certainly agree with the context of what you're putting, that you would have a conversation with someone about the circumstances and the incident and maybe how they're feeling and make options known to them in the first instance. Yeah. Q. You'd tell them a couple of red flags in order to let them make a decision. Rather than interfering with them, you'd give them a description of some of the red flags, which might help them decide whether they need help or not. Wouldn't you? A. Sure. Q. In your opinion, and in your experience as a manager, that would be a prudent step to take in order to assure the psychological wellbeing of officers under your command, correct? A. Yes." (Tcpt, 1 June 2023, p 219(5) - p 220(17))
In addition, Inspector Yapp acknowledged that some of the counselling services promoted in the Police Weekly as being available had in fact never been put in place at Parramatta: "Q. This is an extract from the Police Weekly of 20 August 2007. And in particular, what I'd like to do is to take you to page 45. And I'd like you to go to the second column on page 45. Down to where it says "stress and conflict management". Do you see that? A. Yes. Q. Could I get you to read from there down to the heading in the next column, "raising training standards". And just let me know when you're finished. A. Down to where, sorry? The next column. Q. Onto the next column, to the heading "raising training standards". A. Yep. Q. Do you see that? A. (No verbal reply) Q. You'll see that refers to a program that refers to a program that was proposed to be unveiled in 2007 called "addressing psychological distress in the workplace". Do you see that? A. Yes. Q. By reference to the dates of 2014 to 2017, which is when you were at Parramatta command, did you ever undertake any program called "addressing psychological distress in the workplace"? A. No. Not that I recall. Q. Or did you attend any similar training program with the black dog institute? A. No." (Tcpt, 1 June 2023, p 222(15) - (42))
As an experienced senior police officer and as a person with a degree in psychology, he had considerable personal experience to draw on if he saw another police officer who appeared to be in trouble while not realising or accepting it, and he was aware that he had power to do something about it, but did not do so: "Q. It's the case, isn't it, that that regulation has changed from time to time, but the power of a commander to direct somebody to the PMO has been a power that is available to a commander for somebody who refuses to acknowledge they're suffering from psychological problems, correct? A. Yes. Q. And if they don't attend in accordance with the direction, they can be disciplined for failing to comply, correct? A. As to the outcome for that, I don't know. By disciplined, I - I would expect if someone failed to comply with a direction in that regard that they would be removed from operational duty as a first step if they weren't already. But we're talking about theoretical scenarios here. Q. Of course. A. Yes. Q. I'm more looking at the power. A. Yep. Q. The power you've got as a commander. Do you see what I mean? A. The - the commander of the - the command would have that authority, yes. Yes. Q. So in this circumstance, if you were the crime manager, if you had a concern, you'd refer it up to the Local Area Commander and that step would be taken by him or her? A. That's so." (Tcpt, 1 June 2023, p 224(12)-(38))
He was aware of red flags and specifically referred to his psychology qualifications on this issue: "Q. We were talking about red flags before lunch. Red flags that you might discuss with an officer to help them identify whether they were having problems after a critical incident. Can I take you to page 50? I'm not suggesting that these are the red flags you might raise with every officer and that you'd raise every one of them, because presumably, you don't have any training as a psychologist, is that right? A. Um. Q. Let me withdraw that. You've got no training as a psychologist, is that right? A. I'm not a psychologist. I actually did complete a psychology degree amongst other things. Q. Did you? A. Yes. HER HONOUR Q. Tell us about that. A. Before joining the police, your Honour. Q. Where did you do it? A. Macquarie University. Q. Did you do all three years or one year? A. Three and a bit with a major in statistics, primarily. HER HONOUR: Thanks. What's next? MORRIS Q. We were talking about the red flags that you might raise with an officer. If you go to page 50, you see there's a list of bullet points. A. Yes. Q. Are those the sorts of things you might raise with an officer in order to assist and identify whether they're suffering from psychological distress? A. Yes, that's reasonable. Q. Certainly, if anybody raised any of those problems with you, you would take steps with an officer after such critical incidents to assist them in perhaps getting some psychological help or some sort of psychological review? Is that correct? A. Yes." (Tcpt, 1 June 2023, p 224(40) - p 225(33))
Inspector Yapp was also aware that the Plaintiff was working very long hours in circumstances of stress: "Q. And if an officer in addition to their 38 week, was taking work home to complete their work at night, is that something that would give you a concern as to whether they were coping with the workload? A. Yes, it may do. Yeah. Q. I want to add to that: were you aware that many of the victims in Strike Force Bilvo had Mr Paul's mobile telephone number? A. I'm aware they were contacting him. Yes. Q. So you're aware that they were contacting him. Were you aware that they were contacting him on the mobile telephone number? A. I would assume so. Yeah. Q. I take it that you considered that that was an appropriate thing to have happen, because the victims that we were dealing with, some of them had extensive psychological or psychiatric problems. Is that right? A. Many of the victims had traumatic backgrounds. Q. And they were often very interested in the progress of the investigation. And would want an update from time to time. A. I can only assume so. That's normal. Q. And that they might also with to talk to Mr Paul about some of their personal difficulties? A. Sure. Q. And were you aware that Mr Paul was taking telephone calls from these people on his way home from work? Sometimes for an hour or more on the phone? A. Not specifically, no. Q. And were you aware that these people would often ring him at all hours of night, talking about their personal problems with him? A. No. Q. If you were aware of that, that can I suggest, would have given you a concern as to whether that sort of exposure could cause psychological distress to Mr Paul. A. Yes. Q. And that it was probably inappropriate in the circumstances. A. It would have been something that would have needed to be managed, yes. Q. And what sort of steps would you have put in place had you been aware of it? What sort of steps would you have put in place to try and manage that problem? A. Speaking theoretically, the first thing that comes to my mind is the use of a work phone to limit the - limit the contact and to be able to control the hours of contact. Yeah. Q. Because you would recognise that could give rise to potential psychological distress for the officer concerned, correct? A. It could." (Tcpt, 1 June 2023, p 231(40) - p 232(43))
On the subject of red flags to other police officers, he was asked whether the Plaintiff's conduct in about 2017 while at Tuggerah indicated that he was struggling: "Q. Okay. At that time, there was an acting Local Area Commander David Waddell. And there was also Acting Inspector Conroy. A. That name is not familiar to me. Yeah. MORRIS: I've got to withdraw those last questions. I've made a mistake. BARAN: Sorry, which ones? MORRIS: The last three questions about Conroy and Waddell. HER HONOUR: Is that all wrong? MORRIS: No, the issue is that this was Tuggerah Lake Command. Not Parramatta Command. HER HONOUR: I see. MORRIS: So I don't want to create any confusion. Q. Can you just forget the last two or three questions? A. Yep. No problem. Q. I'll try again. If you had an officer on a high-risk duty such as Operation Bilvo and you observed that they had taken in the last six months, greater than 80% of their annual sick leave, would that be something that would concern you about whether they may have been suffering from some form of psychological distress? A. It may do. Q. And particularly if they were unable to produce medical certificates to identify any physical injury that would justify the taking of that sick leave. A. Perhaps so. Q. And if somebody was reporting to you that they were suffering physical and mental health problems over work, is that something that would cause you concern about their psychological state? A. Yes, may do. Yes. Q. And is that the sort of thing that - regardless of the over-work - you as a responsible manager would advise them to go and see their doctor or go and see the police psychologist? A. It would depend on the circumstances. But it may be something that might come up. Yes. Q. But you would be concerned if you got a report like that, putting aside the workload and adjusting the workload. You would be concerned that such a report might give rise to a risk of psychological harm for that officer. Correct? A. A report of - of sick leave? Q. No. Let's go back. A report by the officer themselves that they were concerned about their physical and mental health and wellbeing. A. Yes. Q. You couldn't have a clearer red flag that somebody is struggling psychologically than that, could you? A. Sure. Q. During the time that you were crime manager and he was at Parramatta, I want you to assume that Mr Paul was rostered to work 38 hours a week. All right? That's the base assumption. But I want you to assume that he was taking work home and working from home as well, on the investigation. All right? Were you aware of that? A. No." (Tcpt, 1 June 2023, p 230(03) - p 231(15))
Inspector Yapp also admitted that, at the time of his August 2014 recommendations, he was not familiar with a review in about January 2013 of the protocols relating to psychological harm within the Child Abuse Squad.
Inspector Yapp was the only viva voce witness called by the Defendant who did not come into the case at the last minute. He provided a statement at an earlier stage of the proceedings, and has had time to reflect and consider the issues about which he would be called to give evidence.
The picture painted is one of a diligent but preoccupied police officer in command who, at the request of his subordinate, the Plaintiff, puts a plan in action for counselling without really looking at what is involved, keeping an eye on how it was going or taking action where there were red flags. He was unaware of the obligations the WellCheck system imposed on him. He was unaware that WellCheck had not in fact been set up (although this is an inference I have to draw, as he was not asked this directly). He was aware that the Plaintiff was working longer and longer hours and that his transfer to Tuggerah was also causing difficulty. He had the advantage of a degree in psychology which should have made him more responsive to the red flags coming from the counselling sessions, such as the police officer turning up dressed as a priest, but took no action.
I do not have any evidence that the Plaintiff was aware that Inspector Yapp had a degree in psychology. Whether he knew this or not, it is clear from his evidence that the Plaintiff respected Inspector Yapp and followed his directions. He was entitled to rely upon Inspector Yapp and to assume that if Inspector Yapp said or did nothing, that it was not up to him to take any further steps to arrange additional counselling through the EAP. He was left with the impression that he was in the WellCheck program when this was not the case, as Ms Freeland would later say in her evidence.
The failure of Inspector Yapp to take any supervisory or managerial role was exacerbated by Ms Clark's response to the Plaintiff, namely to treat him as being outside the whole process. He was the person she made arrangements with for counselling, not one of her patients. As is set out below, her very brief contact with him consisted of a meeting with Ms Clark in September 2014 (the contents of which, as set out in Exhibit 3, consisted of general chat), some phone calls to arrange visits from time to time by Ms Clark to the other officers and little or no assistance after the Plaintiff was rostered to Tuggerah, even though he continued to work on Bilvo and to assist in relation to the two trials.
The biggest failure was, however, the Plaintiff's supervisors' failure to ascertain whether the Plaintiff and his team were in WellCheck at all. This is not a failure of Inspector Yapp, Mr Smith or Mr Fenwick, but of the EAP. As Ms Freeland disclosed in her evidence at the end of this hearing, they had never been included at all. They had no entitlements to assessments, rotations and the like. They had simply been allocated a psychologist as part of the EAP and there was no checking up either on how often she went or what she did.

The Plaintiff's experience with Ms Clark

The Plaintiff described how the counselling was set up and proceeded as follows: "Q. You spoke to Mr Yapp, and he thought it was a good idea and made it‑‑ A. Yeah. Q. Do you recall whether you saw anybody? A. There was a - a lady who came around, she was a sort of blonde, attractive, lady, youngish, maybe in her twenties or something. I remember Q. Could I just stop you there, was that a pre-arranged meeting, do you recall? A. Yeah, nothing I arranged, I guess it came from Mr Yapp or - or someone else at the police station who arranged for her to come and speak to my Strike Force Bilvo team." (Tcpt, 29 May 2023, p 38(50) - p 39(11))
By this stage, there were already five officers under the Plaintiff's command in Bilvo, all of whom were to be included.
The Plaintiff's evidence was as follows: "Q. Do you have any recollection, today, of any of the occasions when this young woman came to visit you? A. I can remember we worked off site, we didn't work at Parramatta Police Station, so I - initially we worked out of the Ferguson Centre in Parramatta. I recall her coming to the Ferguson Centre once or twice, and then later on we moved to a - a police station, an unused police station at Ermington and I think she came once or twice there and that's before I left in 2016. Q. Do you recall whether the discussions you had with her, that you participated in, were they group or one on one? A. They were group, the ones I was involved in. Q. Do you have any recollection of any one-on-one communication with this woman? A. Myself? Q. Yes. A. No. Q. Do you recall whether seeing other of your junior officers going off for one-on-one communication? A. Yes. Q. So just tell her Honour how that worked? A. Generally she would come in and we'd sort of all sit around in a group and then sometimes she would just go to the individuals and speak to them and then would come back to me and ask what I thought, how they were going and how the investigation was going. Q. To your observation, in the group sessions that you had, what sort of things were discussed, do you recall? A. There's a couple of things. I mean, it was very light-hearted, the group discussions. There wasn't - I remember a couple of instances. One time, Detective Marino came dressed as a priest. He was dressed all in black with the white priest collar. Q. He didn't normally dress like that? A. No, I'd never seen him before dressed like that. Q. What did you take this to be? A. It was just a huge laugh really. I think everyone thought that that's what this was all about. There was another instance where one of my staff doctored some printouts, some photographs. There's one I remember - there was some sort of perhaps Papua New Guinean or tribe warriors running across a river dressed in, you know, traditional garments, I guess, wearing not very much and they doctored this particular photo with Detective Marino's head and a large pair of testicles and there was probably half a dozen or so photos that they handed to the counsellor who had a great laugh at it all and that's sort of the nature of these group meetings. Q. Your perception of it, did it appear to have a health related aspect to it? A. No, it didn't. It seemed like a waste of time to be quite frank. Q. Did you deal with other issues like cooperation, working together, etcetera, teamwork, that sort of thing? A. No, no. Q. Do you recall any documentation? Did you ever get a report from her or anything like that? A. No, I don't really remember her taking any notes. Q. Did she at any time tell you about behaviour or experiences that might be a concern for or a flag for psychological stress? A. No. Q. Do you ever recall Mr Yapp being present? A. No. Q. Or any other superior officer? A. No. Q. Do you ever recall being spoken to by any superior officer about what went on at these meetings? A. No. Q. Were you ever - you said that you thought it was a bit of a joke, you told her Honour that, were you ever told that, in fact, this was a serious clinical step? A. If it was a serious clinical step, it didn't resemble anything like it. Q. Did that start, do you recall, when, towards the end of 2014 or the following year or do you recall? A. I can't say for sure. I can't recall when we moved from the Ferguson Centre to the other place so I - I don't honestly know when it started. Q. At this time you were under Parramatta Command? A. Yes. Q. Did you ever receive any advice or training in relation to your behaviour or anything like that? A. No." (Tcpt, 29 May 2023, p 39(41) - p 41(31))
As is set out in the analysis of her evidence below, Ms Clark had only received minimal information about Bilvo and the officers working on it (Tcpt, 2 June 2023, p 258(16)-(24)). There was an initial meeting in September 2014 of an introductory nature at which it appears, from Ms Clark's later email, that only the Plaintiff was present, and the other team members had to be followed up by phone (Exhibit 3).
On 13 October 2014, Ms Clark wrote to the Plaintiff: "Hi Tim, Hope you're well. It was lovely meeting you in September. Hopefully this month the detectives working on the Royal Commission are more available for an on-site catch up. How is the calendar roster looking? Is there a good date and time for me to make a visit over to check in with you all in the next coming days or weeks?"
The Plaintiff replied on 14 October 2014: "Morning Tahnee, Thanks for the email. Apart from Phil who is on annual leave, the rest of us will be in the office today (14/10), tomorrow and Thursday this week, and then Monday 20th and Tuesday 21st October next week. We are flexible with times, so whatever suits you we can work around. If these dates are not suitable with you I can look a bit further forward and find another time. Let me know what suits. Talk to you soon."
There is a reference in Exhibit 3 to a session on 29 October 2014 being planned, but there is no evidence that it occurred. Whether or not there was a meeting in October 2014, there was then a long gap. Counselling for the Plaintiff and his team was supposed to be a monthly occurrence, according to Ms Clark's emails with Ms Freeland (Exhibit 3) but it is clear that this did not happen. The lateness with which this material was produced was a significant difficulty in terms of putting this material to the witnesses.
On 30 April 2015, Mr Smith (not Ms Clark) wrote to the Plaintiff, but his inquiries related only to work issues: "Tim, Since your team have moved out I have been neglectful in terms of contact and progress. I hope all is going well and you are getting close to putting these individuals in the dock. When you get a chance can you send me a copy of the latest progress report. Speak soon."
The Plaintiff replied as follows: "Sir, We are out of sight - out of mind! Come down to Ermington for a visit in your best South Sydney gear or tracksuit and you will fit right in. You might have to knock a couple of your front teeth out though...different world down here!! We are ticking along completing a legal advising report as our main priority in the hope to have some charges preferred against one of our crooks (VALENTINE) and will then work on the legal advising in respect of our other crook GREENAWAY. The report has taken the past month to put together with all the required documents we have on hand. I will be completing a progress report next week and will make sure you get a copy. Sex Crimes have been really good and getting heaps done for us. Ma'am HOWLETT'S initial 4 week period of assistance ended nearly a month ago, but at this point the team from Sex Crimes are keen to stay involved so we are just continuing along until we are told otherwise. (If you don't say anything I certainly won't!!) Will talk to you soon and ensure the progress report is on your desk next week."
On 11 November 2015, Inspector Yapp wrote to Ms Clark: "Good morning Tahnee, I wonder if you would be able to provide me with an update on the welfare checks for SF Bilvo staff? I would like to confirm they are ongoing, (especially given the duration of the investigation, changeover of one of the team members), and also to ensure that they are all participating amongst other things. Fee [sic] free to give me a call if that is easier, or I can give you a ring at your convenience."
Ms Clark replied on 13 November 2015: "Hi Stephen, Lovely to hear from you. Yes this investigation is coming up to 2 years now. The team have participated and been engaged in onsite check in visits throughout the time. At each onsite I provide psycho-education related to themes relevant at the time followed by 1:1 private check ins. The themes include such topics as stress reactions, values, travel and self-care, pressure to achieve a certain result for their clients, the passing of clients. I have my next onsite on 16 November which is this Monday. Tim Paul has been a great leader during this time and has been very helpful when organising dates to be onsite (working around the teams travel roster) and providing thorough updates. Please let me know if you have any questions. I hope you have a great Friday."
If the Plaintiff had indeed been reluctant to assist or participate in the counselling, this was Ms Clark's chance to raise it. To the contrary, she is full of praise for his help (the Plaintiff's "thorough updates" to her have not been produced by the Defendant or Ms Clark's employer). The arrangements for counselling appointments were clearly expected by everyone to be made by the Plaintiff, not by Mr Fenwick; this is corroborated by the email the Plaintiff sent to Ms Clark on 13 September 2016: "Hi Tahnee, Believe it or not we are still going strong on this investigation and I have been reminded by my manager that we are overdue for a 'well-check'. Could you please get in contact with me so we can arrange a suitable time over the next few weeks. We are still working out of the salubrious accommodation of Ermington Police station and would require an on-site visit please. I look forward to speaking with you soon. Many thanks."
On 20 September 2016, Ms Clark replied: "Hi Tim, Very sorry for the late reply. I've been off work for 2.5 weeks. I'll is [sic] better now. How does this Friday 23rd from 10.30am suit?"
The Plaintiff wrote: "Hi Tahnee, Friday wont [sic] work but we will all be here next week Mon - Thurs with the exception of Tuesday morning 8am - 1130am. Do any of these times work for you?"
Ms Clark then asked: "Let's do Monday the 26th. What is the address?"
A notation in the Plaintiff's chronology is made to the effect that on 26 September 2016 Ms Clark attended the Parramatta offices for group counselling. There are no other counselling dates set out in the exhibits or the chronology. It appears no counselling or even telephone contact occurred thereafter, certainly for the Plaintiff, and probably for the rest of the group. A subpoena issued to Benestar days before these proceedings commenced (on 23 May 2023; Exhibit G) suggests there was no further counselling: "Benstead has undertaken a further search with the additional information provided, ie badge number for Timothy Paul (Client), and has located a case number(N570062) which includes a reference to Timothy Paul dating back to August 2014.The case number relates to Critical Incident Management support organised for a wider team of individuals within the NSW Police Force. This type of support is generally provided following an incident in the workplace and is requested by the employer rather than individuals themselves. Group sessions are usually held onsite with individual WellCheck sessions to follow should an individual require additional support. Clinical records of WellCheck sessions form part of an overall Critical Incident Management Report that is sent to the employer. As noted above we do, have a record of Tim Paul accessing Benestar services as part of a Critical Incident relating to the Royal Commission into Child Abuse. We set out details below which have been extracted from the Benestar client profile database. Client presented on the following dates: 1. 20/08/2014 Initial support face to face 2. 03/09/2015 3. 11/11/2015 Phone 4. 16/11/2015 Phone 5. 29/09/2016 Phone Unfortunately, we cannot locate any individual records for the Client with respect to the presentations noted above. To date we have also undertaken the following extensive searches of the Benestar databases: 1."Penelope" case management records-we have no record of the Client accessing individual counselling. Searched from June 2017 when Benestar onboarded the Penelope database system. 2.CIMR spreadsheet used for reporting to NSW police-Critical Incident Management Reporting 2014-2018 3.N-Drive for NSW Police 2014-2016-unable to locate any records. 4.Called and rechecked Iron Mountain (Benestar's records and data management provider) lists of case notes. As at today's date Benestar has been unable to locate Case file report N570062inrecords stored with Iron Mountain. Please note that Benestar ceased providing services to the NSW Police Force in April 2019. In addition, Benestar is attempting to access and search its historical inboxes for further information relating to this particular Critical Incident. Please note however, that this will take some time as it is not easily accessible following the sale of the Benestar business in November 2022, and the search will require an individual to manually search through disks to locate information relating to the particular case. Whilst all care is taken by staff to ensure records are accurately filed and best endeavours have been made to locate the records, it is regrettable that in this case Benestar has been unable to locate any other information. On behalf of Benestar, I would like to apologise that we have not been able to satisfy your request fully."
I have included the whole of the letter of explanation from the company officer answering the subpoena as Mr Baran was critical of their inadequate response. Given the very short notice for the documents, they did well to find anything. What they did find corroborates the Plaintiff and DSC Henkel's evidence that there were three or four (probably three, given the above information) sessions during the three and a half years that DSC Henkel was in Bilvo, and nothing thereafter.
DSC Henkel was called by the Defendant to describe what happened in the counselling sessions he attended.

The evidence of Detective Senior Constable Henkel

Detective Senior Constable Henkel was called as a witness at short notice (Tcpt, 30 May 2023, p 155). Mr Morris SC sets out, in his submissions at paragraph 55, that his evidence was disclosed by the Defendant on 25 May 2023, three days before the hearing of these proceedings was to start.
DSC Henkel described his participation in the Bilvo team, where the Plaintiff was in command and Philip Marino was the second in command (Tcpt, 31 May 2023, p 160). He had no assessment prior to joining Bilvo. During the three and a half years he remained in the Bilvo strike force, he saw the psychologist three or four times (Tcpt, 31 May 2023, pp 160-162). This consisted of a general talk amongst the officers, followed by a session in which he would see Ms Clark alone.
The content of these private meetings was, if his description is accepted, superficial, and the period of time for such sessions was brief: "Q. What was the nature of the group discussions to your recollection? A. From memory, I think we just discussed where we were up to in terms of the investigation, how it was going, what we were doing since the last meeting, and if we had any issues. And then, I think, it was just a general discussion and then we would move on to our individual meetings with the psychologist. Q. How long did the group session take? A. I think they varied, but I don't think it would be any longer than 20 minutes. Q. In terms of the individual assessment, how long do you recall them taking? A. For me personally, about 20 to 30 minutes. Q. What sort of questions were you asked? A. I think, again, how - how I was coping with the job, the workload, I think if I had any issues personally or if I had any feelings about the work. But that was pretty much about it. Q. Did you recall the psychologist making any notes? A. I think she might've. I'm not - I couldn't say yes or no. I couldn't be certain. Q. Did you ever get any report back from the psychologist personally? A. No. I don't believe so. Q. After any of these group sessions, were you ever contacted by a senior commander about the results of the meeting with the psychologist? A. No." (Tcpt, 31 May 2023, p 162(30) - p163(05))
He did not recall being told to seek medical or psychological help. He recalled Philip Marino (whom he described as a practical joker) dressing up as a priest for one of the sessions, but thought it was just a joke and to lighten the mood (Tcpt, 31 May 2023, p 168). He did not observe the Plaintiff to be in any state of distress or otherwise displaying anger; he simply thought the Plaintiff was "tired", a word he used more than once (Tcpt, 31 May 2023, pp 166,168 and 169). He said the Plaintiff was supportive of the team and provided help when asked.
DSC Henkel was asked about the Nemesis emails, the peer support system and the chaplain's availability. He agreed he was aware of these and had used the peer support system. He was not asked, however, about the system in use which had resulted in him receiving the three or four sessions of counselling that he had over the three and a half years he was attached to Bilvo. For example, he was not asked if he understood that this counselling was provided as part of WellCheck or some other service (and if so, which).
DSC Henkel's description of the nature and frequency of the attendances and the contents of the meeting discussion, with one exception, corroborates that of the Plaintiff. He describes an ad hoc and informal process of discussions, three or four at most, over the three and a half years that he was attached to Bilvo, where the nature of the discussion was superficial. He also corroborated that, whatever system was in place in relation to the screening and testing of officers involved in Bilvo, it was not that described by Exhibit B. Nor was it that which was described in Annexure G to the Final Report of the Royal Commission (vol 1, Appendix G: Supporting staff wellbeing; Exhibit G, pp 99 - 101).
There was one area of evidence where the Plaintiff and DSC Henkel did not agree. DSC Henkel thought that Philip Marino was playing a practical joke of a harmless nature by dressing up as a priest (the point of the joke is, however, obscure, as there were no priests involved in the Bilvo investigation). The Plaintiff took a different view and I am satisfied that his was the correct view. I am also satisfied that he spoke to Inspector Yapp about it, saying that the counselling process was being made a joke.
I consider the Plaintiff was right to complain as it was concerning behaviour. Unfortunately, his complaint was not followed up either by Ms Clark (who must have seen it) or Inspector Yapp. Mr Marino, who was in fact struggling with health issues, left the Bilvo team and the Police on sick leave in April 2017 and never returned.
The Plaintiff's response to this asserted joking behaviour is another sign of his awareness of the importance of the counselling, his attempts to make it work and his willingness to participate, not only on his own behalf, but on behalf of his team. DSC Henkel's evidence corroborates his complaints that these sessions were few and far between as well as superficial in nature.

The evidence of Ms Clark

Ms Clark, the "blonde" (Tcpt, 29 May 2023, p 39) described by the Plaintiff as the psychologist who came to see the Bilvo officers, gave evidence in difficult circumstances.
First, she no longer had any recollection of the events in question (Tcpt, 2 June 2023, p 254, 273) and the lateness with which she had been located and asked to give evidence also applied to the issuing of a subpoena to the organisation which employed her. She acknowledged the importance of keeping notes from interviews (Tcpt, 2 June 2023, pp 252 - 253, 257) but, if she did keep notes, these are no longer available. The notes were not hers to keep and she had not made any inquiry for the paper file that she said would have been created in relation to the Bilvo consultations (Tcpt, 2 June 2023, pp 265 - 6).
Although she sought to do her best to answer questions about the assistance she provided to the Plaintiff and the other Bilvo officers, her lack of recollection meant that she was essentially giving evidence of systems rather than of factual events; the word "would" featured prominently in her answers (for example Tcpt, 2 June 2023, pp 281-282).
An example of the interweaving between lack of memory and events which took place during her sessions with the Bilvo officers is the evidence about the circumstances in which Philip Marino came to one of these sessions and the circulation of photographs of native tribesmen with Mr Marino's genitals added. She remembered neither incident, but nevertheless expressed views. Mr Baran submits that she "explained plausibly" that "there may be a number of reasons for that but she was trained sufficiently enough by that time to detect when these kinds of behaviours were merely avoidance as opposed to trying to lighten the situation" (submissions, p. 65), adding that "the detailed evidence" that Ms Clark gave as to her practice and procedures with police should be preferred" to the Plaintiff's criticisms of these.
This submission is without merit. First, Ms Clark cannot recall these events, so her evidence is of the "would have" variety as opposed to what actually occurred. Second, it is not in contest that Philip Marino was in fact invalided out of the police with stress-related problems in April 2017, after these events, and never returned to work, leaving the Plaintiff to run Bilvo with little or no assistance. Given that this was what really occurred, there is more than a hint of self-exculpation in Ms Clark's attempts to minimise the seriousness of Mr Marino's conduct, while at the same time claiming not even to remember it. Third, dressing up as a priest and/or circulating photographs of black tribesmen with a colleague's face and outsized genitals attached is not conduct to be viewed good-humouredly as "trying to lighten the situation", but conduct which the Plaintiff was right to complain to Inspector Yapp about and to be seen as a "red flag", as Inspector Yapp effectively acknowledged (Tcpt, 1 June 2023, p 217).
Second, the shortness of time meant that no report or statement had been prepared and Ms Clark had had little time to think about or process the factual background and history of the Plaintiff's work (for example, she was unaware of his work on Bilvo for the Royal Commission: Tcpt, 2 June 2023, p 266). While no objection was taken to the evidence given by Ms Clark on issues that were medico-legal rather than factual, the effectiveness of her evidence was diminished by its manner of presentation. This included an apparent lack of familiarity with the opinions of experts who had provided medico-legal reports. This lack of familiarity worked both ways; the experts retained by the Plaintiff had no opportunity to comment on her description of treatment methods and the like.
Third, she only saw the Plaintiff person-to-person once, although this was followed up by some telephone calls up to September 2015, as the documents under subpoena confirm. In the course of these encounters, she appears to have viewed the Plaintiff, not as someone needing her assistance, but as the facilitator of her meetings with the officers under his command, rather than as a patient.
The real problem was, however, that Ms Clark had "two clients" (Tcpt, 2 June 2023, p 280) - the Plaintiff and the police. If the Defendant was not prepared to provide a WellCheck service for the Plaintiff and his team, there would have been nothing Ms Clark could do.
In short, the WellCheck program was a "preventive strategy" (Exhibit G, p. 25) and not therapy, although if more counselling was required it could be provided. The Plaintiff and his team were never provided with this preventive strategy or the "more intense counselling" (Exhibit G, p. 25). None of the follow-ups applicable for a system like this were provided.

The Plaintiff seeks assistance from his general practitioner

In March 2015, the Plaintiff consulted his general practitioner, Dr Raya Grishina-Gunn about feeling "run down and stressed" and "finding it difficult" and specifically identified the trigger as being the "child sexual abuse case" [sic] for the Royal Commission" (Exhibit A, Medical Book, p.1).
Those notes state: "Date: Thursday, 12/03/2015 1:20 PM Presenting Problem: Prescription(s) Provider: Dr Raya Grishina-Gunn History: [redacted] has been run down and stressed. working on child sexual abuse case for the royal cpmossion [sic]. finding it difficult. has lesion on the right forehead. would like it removed. Mx: [redacted] will come back Thursday for an excision, r/v then seing councellor [sic] for work. will continue. not suicidal. nil other problems. will come here if gets concerned or if feeling very unwell Plan: Sofradex 0.5mg/5mg/0.05mg per ImL Ear drops 2-3 drops qid ('^l packs mL^ R2) consultation Recorded by: Sr Jane Parker Visit date: 12/03/2015 Recorded on: 11/12/2021"
The Plaintiff consulted his general practitioner again on 12 April 2016 at 9:41 AM. On this occasion, his work problems were the sole topic of discussion: "Presenting Problem: Provider: Dr Raya Grishina-Gunn History: Long discussion today about his work. working for Royal commission [sic] into child sex offenders, lots of pressure. not sleeping not able to switch off. MxL discusison [sic] about sleep and some positive experiences, needs to find something relaxing to do. sleep hygine discussed. Wiil [sic] stop tea and coffe [sic] after midday circadin if no improvement, r/v in 2-3 weeks"
The Plaintiff consulted his general practitioner again on 14 March 2018 and his work difficulties were the sole topic of discussion: "Presenting Problem: Provider: Dr Raya Grishina-Gunn History: Not sleeping stress at work MX: try sleep hygiene [sic] try temazepam prn r/v post above"
The Plaintiff was not cross-examined about these consultations, in the course of which he gave frank and self-critical information about the problems he was having. I regard the Plaintiff's proffering of this information as indicative of the kind of information he would have provided to a police counsellor if he had had confidence in that counsellor.

The Plaintiff seeks to change his work duties

The Plaintiff's discussions of these issues with his general practitioner over this period suggests that he was not resolving his stress issues by using work resources.
He also sought other ways to resolve his difficulties by reducing his travelling time and changing his other duties. His workload in Strike Force Bilvo meant that a significant stressor was the amount of travelling between the Bilvo office in Parramatta and his home. These drives were themselves stressful because even on the road the Plaintiff could not stop working; while travelling between Sydney and their home, he was constantly receiving calls, sometimes, according to his wife and himself, for the entire trip (Tcpt, 29 May 2023, p 36(39) - p 37(37)). The Plaintiff said: "Q. Did you keep in contact with the victims from time to time? A. Daily, I would probably speak to half a dozen victims a day. They would ring me with problems they had. I had a victim ring me once who was about to step in front of a bus. Yeah, I had all sorts of phone calls with victims. Q. How would they contact you? A. They had my mobile phone number. Q. Did these calls come during business hours? A. Oh, they came at any time of the day. They'd ring me at night at home, early mornings, yeah, and during working time. Q. I think you were living up the coast and travelling down to Parramatta - A. Yes. Q. - daily. A. Yeah. … Q. Can you give an estimate per week, how many sorts of afterhours calls you might get from people? A. Oh, it'd be daily. I could leave work and have a call that lasted my entire journey home, an hour and a half in the car, with a victim. Yeah, I - I couldn't put a figure on how many hours outside of working hours I did, I'm sorry. Lots. Q. Did you drive to and from Parramatta with your wife from time to time? A. Yes. Q. Did you have Bluetooth in the car? A. Yes."
Mrs Paul gave similar evidence at Tcpt, 30 May 2023, p 150(50) - p 151(30).
In September 2015, the Plaintiff began a series of lateral transfer applications (Exhibit G, pp.70-84) to move closer to his home on the Central Coast. He continued to work very long hours: "Q. Were you proud of the work you were doing in Strike Force Bilvo? A. Very. Q. How would you describe your dedication to the job? A. I was a hundred percent dedicated to the victims. I wanted to - I wanted to see the job through and I - I wanted to do my absolute best for them to try and get them some justice. Q. To that extent, were you dedicated to investigating this to the best of your ability so as to secure convictions of these two men? A. Without a doubt. I was 100% committed to it." (Tcpt, 29 May 2023, p 42(02) - (16))
As the number of complainants increased, the Plaintiff worked even longer hours, starting each day at 6 am after driving from his home and working well past the 4 pm rostered hours, as there was a looming deadline: "Q. Did you make claims for overtime and other allowances? A. Usually not while we're away. Sort of just thought it was par for the course that and we just had to get it done. We only had a specified amount of time to be away so we had to finish it in that time period." (Tcpt, 29 May 2023, p 42(32) - (35))
In addition to having trouble sleeping and having arguments with his wife, he began to have arguments at work and with members of the community, such as one of the parents at the school soccer match (Tcpt, 29 May 2023, p 43) and a neighbour (Tcpt, 29 May 2023, pp 43 - 44). Although the causes for anger were trivial, these were serious arguments where it was the Plaintiff, and not the other parties to these conversations, who was angry (Tcpt, 29 May 2023, pp 41 - 42).
The Plaintiff was struggling with his workload, his travel time and the Royal Commission deadlines. These struggles increased as Bilvo came towards its conclusion. Ms Clark's sporadic sessions with the Bilvo officers accorded him little assistance and his discussions with his general practitioner had not led to any referrals or medication. His attempts to obtain a work transfer had not assisted either.
As his role in Strike Force Bilvo changed, he put some of this down on paper.

The Plaintiff's role Strike Force Bilvo changes

On his last day as the Officer in Charge of Bilvo, which had now come to an end in that the report had been compiled and all that was left were the prosecutions, the Plaintiff composed a letter to all those concerned (pp 85-6 of Exhibit G): "Today is my last day of duty attached to the Parramatta LAC, and hence my last day as the OIC of SF Bilvo. I still have carriage of the current matters before the Court concerning our 2 POI's and 12 complainants, and any future new charges involving those POI's I will also take carriage of, so I am not completely absolving my responsibilities to this investigation just yet. I do feel though that I would be neglecting some of my responsibility if I did not provide you with some facts and insight into this investigation which I believe may assist the decision making processes going forward. Since this investigation commenced some 2 years and 8 months ago I have personally been involved with all 70+ complainants that have to date been referred or presented themselves to SF Bilvo. I have listened to their complaints of being sexually and physically abused as children some 40 and 50 years ago by authority figures tasked to look after them. These same complainants, in nearly all of our cases have never told anyone else of this abuse, including family, and are now putting their trust in another authority figure, initially on the end of a phone who they have never met. The complainants in this matter are not unique [sic] to the policing environment. They are former drug addicts, prostitutes and criminals. What they do have in common is that they were sexually abused as children inside a State controlled juvenile detention centre at Parramatta. The impact of this abuse and how it has played a part in defining the outcome of their lives is not an issue I have any authority or expertise to discuss. I do believe though I now have sufficient experience and expertise to discuss how this abuse is investigated. Prior to SF Bilvo I had never investigated a historical child abuse case. I think it would be fair to say now that in the past 2 years and 8 months I have probably investigated more than most non-specialist child abuse Police would investigate in an entire career. I have learnt on the run. I think it would be fair to say my team here has as well. Of the six of us involved in this investigation only myself and DSC Marino had over 10 years Policing experience. Two of my staff have commenced and completed their Designation while attached to SF Bilvo. To say we were collectively an inexperienced group of child abuse investigators is an understatement. However, we have managed over 70 complainants and placed 2 accused persons before the Court facing 45 separate charges. We have done this without any immediate and direct oversight, supervision, management or investigative directions from Senior Officers at Parramatta LAC. We have also managed this investigation without raising a single complaint from a complainant, stakeholder or accused person. Given the difficulties we have faced this is testament to the fact that we must be doing something right."
Mr Morris SC submits that this email is a cry for help, in terms of setting out the distressing nature of the work, the huge workload, and the devotion of the team. Mr Baran describes it as merely a report on "costs and budget" issues (Submissions in reply, paragraph 2). Mr Morris SC is correct; reading between the lines, the Plaintiff is clearly struggling with the enormity of his task while remaining committed to finishing it.
One of the results of the change of roles for the Plaintiff is that the other officers who had been assisting him had all gradually been reassigned. Although the Plaintiff's relocation to Tuggerah Lakes Local Area Command ("TLLAC") occurred in November 2016, he continued to work long hours on Bilvo with an increasingly small team, having to work to a deadline for the report plus the necessary work for the two criminal trials. Although continuing to perform duties as part of Bilvo meant that ongoing and needing counselling while doing so, this did not occur. In the meantime, he was having sleep, anger, drinking and obsessional behaviour problems. He said that if there had been counselling, he would have given honest answers to anyone who asked in such an interview about his sleep problems, his stress habits such as constantly checking the house doors were locked, his anger outbursts his nightmares and his reliance on alcohol (Tcpt, 30 May 2023, p 140(35) - p 141(13)). I accept this evidence.
All of this became even more unmanageable after Philip Marino went on sick leave in April 2017. The Plaintiff's next solution to his problems, now that he had no officers to assist, was to ask for an officer to be seconded to help him in Mr Marino's place.

The Plaintiff asks for an officer to assist him

The Plaintiff made a request for assistance (Exhibit C) as follows: "ISSUE Requested by Detective Sergeant Tim PAUL (rego 34408) attached to Tuggerah Lakes PD, for assistance to be provided by the Parramatta PAC in the ongoing investigation, management and Court requirements concerning Strike Force BILVO. BACKGROUND Strike Force (SF) BILVO was established by the then Parramatta LAC in April 2014 to investigate the allegations of historical child abuse and sexual assault concerning Officers at the Parramatta Girls Training School. The allegations had arisen out of the Royal Commission into Institutional Responses to Child Sexual Abuse which conducted a public hearing in February 2014 titled Case Study 7 which heard evidence of multiple allegations of child abuse centring [sic] around Parramatta Girls Training School and the Hay Institution for Girls. When SF BILVO was established in April 2014 it was led by D/Sgt PAUL with support of 2 Parramatta LAC detectives. The investigation grew over the following months, and subsequently became a North West Metropolitan Region (MWMR) [sic] investigation in July 2014 where it was still led by D/Sgt PAUL and consisted of a Parramatta LAC investigator, DSC MARINO and four other NWMR investigators seconded on a full-time basis. The investigation moved out of Parramatta LAC at this time and was run out of the NWMR Office in Parramatta until moving to Ermington Police Station where it operated from 2015 until 2017. During the investigation over 70 individual complainants presented to SF BILVO. As a result, two accused persons, Noel GREENAWAY (H527030591) and Frank VALENTINE (H62063116 & H124523801) were charged with over 50 child abuse related offences. D/SGT PAUL is the informant on these matters, supported by the 2IC DSC MARINO. In December 2016 D/SGT PAUL transferred to the Tuggerah Lakes LAC, as it was then known. SF BILVO continued to investigate matters, through liaison with D/SGT PAUL, but was now under the supervision of DSC MARINO. By March 2017, the NWMR staff seconded to SF BILVO had returned, bar one, to their respective Commands. About April 2017 DSC MARINO went off work on sick report and has never returned. D/SGT PAUL has solely managed the ongoing Court and investigative requirements of SF BILVO since this time. COMMENT The 9-week trial of Noel GREENAWAY was set to commence at Downing Centre District Court on 20 August 2018, however was vacated by the Defence on 17 August 2018 and has now been set down for 20 May 2019. The 9-week trial for Frank VALENTINE is due to commence on the 4 February 2019 at Downing Centre District Court. There have been many requisitions called for by the ODPP in respect of both matters. The requisitions concerning GREENAWAY were completed by D/SGT PAUL with the assistance of two previously seconded SF BILVO staff prior to the trial being vacated. The requisitions concerning VALENTINE are yet to be completed. There have been subpoenas issued by both Defence teams and parts of these subpoenas have been objected too by D/SGT PAUL and are currently the subject of ongoing hearings where the Crown Solicitors Office has carriage. The subpoenas have been onerous, and required thousands of pages of documents to be prepared by D/SGT PAUL and filed at Downing Centre District Court. There remains thousands of pages of documents still outstanding. As of 5 September 2018, the Defence of VALENTINE have become aware that the investigation of SF BILVO was managed on e@glei and has requested all documents. Advice for the Crown Solicitors is that these documents will now need to be prepared by D/SGT PAUL. These documents are contained within approximately 1053 individual e@glei products, and will need to be printed, redacted and filed at Court. Both accused in this matter are known to communicate with each other, and their respective Defence teams have run their defences to date almost identically. It is only a matter of time before the Defence of GREENAWAY also issue a subpoena for e@glei products and a further 1000 - 2000 individual e@glei products will need to be prepared. The ongoing management of this investigation and Court proceedings has now reached a point that I can no longer continue to solely manage SF BILVO and my own individual workload at Tuggerah Lakes PD. The ongoing stress and workload associated with managing this matter on my own for the past 18 months has had a very real and negative impact on my ability to successfully fulfil my role that I currently occupy at Tuggerah Lakes PD, and on my physical and mental health and wellbeing. Assistance in managing SF BILVO is now requested from Parramatta PAC, and a 2IC will have to be appointed. It is requested that a 2IC be of sufficient investigative experience that they can be brought up to speed on an investigation that spans 4 1/2 years, work unsupervised and produce required requisitions to professional standards in short timeframes, liaise with ODPP, OGC, Crown Solicitors and multiple complainants and witnesses, and be relied upon to assist in the management of two separate District Court trials that will span 18 weeks between February 2019 and July 2019. It is envisaged that a 2IC will be required on a full-time basis, such is the workload of this matter. RECOMMENDATION It is respectfully requested that I be provided with ongoing assistance by Parramatta PAC to continue with the management of SF BILVO." (Emphasis added)
The Plaintiff made it clear that he needed a skilled 2IC as a replacement for Philip Marino, who had gone on stress leave. The Plaintiff had had to resume his former position at Bilvo after this, and that he was not coping with these two jobs. Mr Morris SC says that this was another cry for help. Mr Baran responds that the Plaintiff was seeking assistance "belatedly", adding (submissions in reply, para 5): "Even if it be held that it was a cry for help the cry was answered and the Defendant discharged its duty to the Plaintiff by providing competent and ongoing assistance with Mr Carr."
It was because the Plaintiff had lost his 2IC, Philip Marino, and because the workload after that time, with or without Mr Carr, was impossible, that he made the request. What is more, the Plaintiff's request was strongly supported by his supervisors.
The Plaintiff was offered the assistance of a female officer with no background in sex crimes or other relevant areas of expertise of the kind set out in his long and careful memorandum. What is more, this officer was someone already known to the Plaintiff and considered by him to be incompetent and difficult to work with. When he refused the help of this officer, he was left to complete his work on these long and difficult trials by himself. It was shortly after the second trial was completed that he left his employment and was considered by his doctors to be unfit to return.

The evidence of Pamela Freeland

Ms Freeland has a management qualification, but no training or skills in terms of being a mental health clinician (Tcpt, 7 June 2023, p 302). She is a manager, not a counsellor, and made it clear that she deferred to the chief psychologist. The chief psychologist was not a witness in this case, although he or she appears to have made important decisions such as the nature and extent of the counselling to be offered to the Plaintiff and his team.
As to her role in police counselling services, Ms Freeland was identified by Inspector Yapp as "the coordinator that I had to direct the report through to an area of the police health and wellbeing for - to seek the approval for the program" (Tcpt, 2 June 2023, p 204) and he confirmed an exchange of correspondence (set out above) for this purpose. Inspector Yapp was, however, unable to comment as to whether Ms Freeland followed up his request by specially designing a course, or implementing a formal policy (Tcpt, 2 June 2023, p 209), or indeed what she was doing at all. This was the very limited extent of his interaction with her.
The Plaintiff had no interaction with her and was not asked any questions about her.
Ms Clark knew Ms Freeland as the coordinator of referrals but only "very, very vaguely" (Tcpt, 2 June 2023, p 249) any contact about officers in the Royal Commission being referred. Ms Clark did, however, recall that reports from counselling sessions were sent to Ms Freeland (Tcpt, 2 June 2023, pp 285 - 286). These scant references were all that was provided to the court in relation to the evidence of Ms Freeland before she was called as a witness.
Ms Freeland told the court that between 2014 and 2019 she was conducting two separate services, the EAP and WellCheck, where services were provided from sources outside the police: "A. So I also look after the, during that time and still do, look after the Employee Assistance Program and all the services that go with that. So that includes what we now call incident support. Possibly in 2014 we called it Trauma Response. So that's a service where a clinician can come on site, can be phone[d] as well, but come on site to provide support to employees in relation to specific events or cumulative exposure. Q. Would that be through an external provider? A. That's correct. Q. The mandatory WellCheck program, was that done through an external provider? A. It was for a period of time but then we were given funding to recruit psychologists employed by New South Wales Police to deliver that program." (Tcpt, 7 June 2023, p 295(40) - p 296(03))
Her role under the EAP included dealing with complaints and monitoring compliance of the performance of the provider (Tcpt, 7 June 2023, p 295). In other words, if the EAP services were not being provided to the persons who needed it in a satisfactory way, or the performance of the provider was not up to standard, it was her job, as the person receiving their reports or seeing their progress, in the manner described by Ms Clark, to do something about it.
Ms Freeland was asked whether, when a unit was not involved but officers were exposed to trauma which might cause injury, what the process was. She replied that the service would use the incident support program so that there was external onsite connection with a clinician (Tcpt, 7 June 2023, p 296). It should be noted, however, that at all relevant times Inspector Yapp sought, and thought he had obtained, inclusion of Bilvo in the WellCheck program, not the incident support program.
Ms Freeland did remember Bilvo and that a request was made for assistance for the officers: "Q. Do you recall what involvement you had with the Strike Force, and in particular the psychological health aspect of it? A. So my role was - I was contacted by an individual from Strike Force Bilvo to arrange support for the officers working on that Strike Force, which is what I did. Q. What was the nature of the support that was provided? A. So regular on site attendance by a psychologist and that psychologist was Tahnee Schulz. Q. Was this the implementation of the WellCheck program or - sorry, the mandatory WellCheck program or something else? A. No, it wasn't part of the WellCheck program, no." (Emphasis added) (Tcpt, 7 June 2023, p 296(36)-(48))
Ms Freeland looked at the correspondence from Inspector Yapp and her replies. It is obvious from these documents that Inspector Yapp was asking for WellCheck to be provided and that her answers do not, in any terms, say that this is not available and that something else would be offered instead. The recipient of the letter would have been none the wiser that the request had been refused. Inspector Yapp said as much. She was not asked why she had not explained this at the time.
Ms Freeland said that Ms Clark was contracted, which I note, from her answers above, meant that she was contracted through a company conformably with EAP practice. Ms Freeland said, however, that she did not receive any reports from Ms Clark, or indeed generally. She only received information "of a general nature and advising when the next dates will be" (Tcpt, 7 June 2023, p 297). I interpret the "and" as being date-related information only; this is confirmed by the nature of the correspondence in Exhibit 3, which covers only a few short months in 2014. She said that if she had received a report from Ms Clark, she would have escalated it to the Chief Psychologist.
Although Ms Freeland started confidently in her description of the psychological and counselling services available, her description of a well-organised structure for assistance quickly began to unravel: 1. It was never explained why, if there was a specific request for inclusion in WellCheck, this was not done (although budgetary constraints appear to have been a factor, as the chief psychologist would consult to see if "we" had the capacity to take them on (Tcpt, 7 June 2023, p 302)). Nor was it explained why Inspector Yapp was not told that while he had asked for WellCheck, a source from an entirely different service (EAP) of a much lesser nature was all that could be offered. 2. There were no procedures for noting when the services began to be provided or when services ceased (and why). For example, if an officer was invalided out of the police, no record of this change of status was kept. This was the case in relation not only to the Plaintiff but also, it would appear, to Philip Marino. 3. There appear to have been a number of inconsistent arrangements even for those who qualified for the WellCheck program. For example, officers working full-time in a unit would get psychometric testing but not officers in Strike Forces, and Ms Freeland did not know what the reason for this was (Tcpt, 7 June 2023, p 301). As to officers in the sex crime unit, she deferred to the chief psychologist as to why some would have mandatory psychometric testing but not others (Tcpt, 7 June 2023, p 303). She thought that some officers engaged in sex crimes investigations outside the sex crime unit or the child protection unit were not part of the WellCheck but part of the EAP, although there was a capacity to provide a report for these officers (Tcpt, 7 June 2023, pp 311 - 312). The concessions the Defendant had made in a series of admitted facts, which included an acceptance that the Bilvo investigation was the same kind of work, were read to Ms Freeland (Tcpt, 7 June 2023, pp 307 - 309) and she was unable to explain it.
Some of the inconsistencies resulting from these haphazard arrangements were put to Ms Freeland as follows: "Q. You tell her Honour that the WellCheck system was only applicable to commands. Is that correct? A. With the exception of the role of DVLO, and later on some other duty types, for example, a regional dog handler would get WellCheck, but not a dog handler in Metropolitan Sydney. Q. Although the risks of psychological injury remain more or less the same because they're doing exactly the same duties; is that correct? A. Except one is in isolation and metropolitan are not. Q. Let's just put that to one side, her Honour is to understand that officers tasked to a strike force do not get the benefit of the mandatory WellCheck system, even though they may be performing the same or similar tasks to officers in a specific squad or command; is that what you're saying? A. That's correct. Q. And so what happens with officers tasked to investigate historic sex crimes under Strike Force Bilvo is that this process is administered under the EAP scheme; correct? A. Under the incident support arm of the Employee Assistance Program, yes. Q. And that process is a deployment of a contracted company providing psychological services; is that correct? A. That's correct. Q. And that's the DTC organisation? A. It was at the time, yes. Q. And "at the time", we're talking about 2014 through to when? A. I, I think it changed in 2019, I'd have to check that. Q. But certainly 2014 through to about 2018/2019, it was DTC providing that service; is that correct? A. Davidson Trahaire Corpsych, and they changed their name toward the end of that to Benestar, yes. Q. So is what you're telling her Honour that it was a change of name rather than change of underlying corporate management? A. That's correct." (Tcpt, 7 June 2023, p 310(06)-(44))
She acknowledged that, despite the similarity of their work to officers entitled to WellCheck, the Bilvo officers did not have the benefit of mandatory counselling, referral if they failed to attend, or reporting (Tcpt, 7 June 2023, p 311).
At the end, Ms Freeland said that she essentially consulted with the Chief Psychologist (Tcpt, 7 June 2023, p 316). There is no suggestion, however, that the chief psychologist, or indeed any psychologist, was consulted as to the actual needs of the Bilvo team, although it is clear from the request that the supervisors of Bilvo stressed that: "Supported officers wellbeing/health will need to be monitored due to this investigation."
Who was responsible for this decision being put into effect? Ms Freeland assured the court that it was not her responsibility: "Q. So, is her Honour to understand that if you'd gone to the police psychologist and asked the police psychologist whether Strike Force Bilvo should be included in the mandatory WellCheck programme, you would have written that communication under your name, signed, and dated it? A. No. That's not a fair assumption. And that's not the proper chain of command. So, I'm the last on the chain of command, 2, 3, and 4. And the chief psychologist, as [sic: should be "at'] a minimum, should be in front of me. But I can tell you, with all confidence, that I will never, have never made that decision. That is not my decision to make." (Tcpt, 7 June 2023, p 317(19)-(27))
The net effect of Ms Freeland's evidence is that, although it was obvious Inspector Yapp had asked her for the Bilvo officers be put in the WellCheck program, a step taken with the approval of other superior officers, in an inquiry of an obviously large and stressful nature, this was not done. Being unqualified herself, she should have sought confirmation from the chief psychologist but there is no evidence beyond Ms Freeland's that either the chief or any other psychologist was consulted, in any formal (or informal) way, about the request to join WellCheck. Ms Freeland had then replied to Inspector Yapp in terms which effectively said that his request for the officers to go into WellCheck had been accommodated, when this was not the case. Thereafter, there was no supervision by her of what was occurring.
Ms Freeland spoke glowingly of the Tuggerah Lakes police station system as being the "gold standard" but agreed in cross-examination that the Plaintiff appeared to have fallen through the net even there, in that very few of the stressful events he referred to had in fact been recorded or dealt with in any meaningful way.
Ms Freeland consistently represented herself as being the last in the chain of command, saying that the chief psychologist should be heard from "before me" (which I infer means that he should have been in court). Her evidence clearly shows that some unknown person or persons in the Defendant's employ and/or their counterparts in the police psychology unit made decisions not only to refuse WellCheck but to fail to provide services of an analogous nature.

The statement evidence

Statements from former Detective Superintendent Ben Feszczuk provided a statement dated 5 July 2021 and former Superintendent Gralton provided a statement dated 29 July 2021.
Mr Feszczuk was the Plaintiff's Local Area commander when he was at Penrith in the Highway Patrol. He retired in 2013 and could give only a very general overview of what systems were in place to address the risk of psychological harm from operational policing. His evidence is, however, consistent with the evidence of Inspector Yapp and Ms Freeland that a training program "Addressing Psychological Distress in the Workplace", although asserted by the Defendant to have been delivered to the target audience of "all senior commanders down to the rank of Superintendent" (Exhibit G, pp 40 and 44) had not been delivered at all before he left. Nor was he able to recall receiving any training to inform him on how to spot red flags or other signs of psychological injury. Apart from this corroboration, his evidence was of little relevance.
Mr Gralton served in the police for 34 years. He knew the Plaintiff from December 2017. He said that the Plaintiff had not shown any symptoms or unusual behaviour of the kind to put him on notice, and that he considered the Plaintiff was merely frustrated with a perceived lack of support. This is inconsistent with the tone of the Plaintiff's memorandum of 6 September 2018 and the forthright statements of Ms Boon and Ms Richards in support and also with Mr Gralton's own comments when he signed the memorandum on 15 September 2018. The Plaintiff is stating frankly that he cannot do the work and I am satisfied that it is a cry for help. Mr Gralton's evidence is also in contradiction of the Plaintiff's work history, as he was having such frequent sick leave that he had been told all sick leave must be accompanied by a doctor's certificate.
Although Mr Gralton referred to resources concerning peer support and a procedure for referral to a psychologist, the Plaintiff's superiors were not alerted by his frequent sick leave to inquire further. Mr Gralton referred to training seminars for supervisors on how to spot injury, but there is no evidence that he attended any. The Defendant did not lead any evidence concerning the training seminars referred to by Mr Gralton.
Mr Gralton said there was a "traumatic incident register" which would generate an email with the offer of assistance through the EAP automatically, but no such email was tendered in relation to incidents involving the Plaintiff.
Given the generalised statements made by Mr Gralton, I consider that there is a degree of reconstruction in his statement and that where his evidence and contemporaneous documentation differ, the latter should be preferred. The contemporary documentary material supports the descriptions of events put forward by the Plaintiff, and the "traumatic incident register" (Exhibit 1, p. 36, paragraph 24), said to pick up incidents and offer counselling through EAP, did not include material about known stress events involving the Plaintiff and did not result in any referrals for him.
Mr Feszczuk and Mr Galton were either not reading material provided by the Defendant about symptoms of psychological injury or they were not understanding what they read. Police officers should be well aware of what stress-related conduct is like because recognising that a particular individual is stressed (such as a victim) may be an important part of detective work. The failure of the Plaintiff's senior officers to realise that he needed help is a fault of the system, not of these individual witnesses, and demonstrates the breach of duty of care arising from the failure to act on the evident signs of the Plaintiff's psychological harm (Kozarov v Victoria at [85]) and a search for obvious signs was unnecessary to establish a duty of care (Bersee v State of Victoria [2022] VSCA 231 at [88]).

The Plaintiff ceases work

The Plaintiff has served a series of reports from the Plaintiff's treating doctors and from an expert who has seen the Plaintiff. These reports describe the stress that built up and caused the Plaintiff to leave work.
In his report of 22 October 2019, Dr Metelerkamp, in the course of giving his diagnosis, describes the Plaintiff as having carriage of "a 5 ½ year case that culminated in 2 x 10 weeks court trials that [he] participated in", adding that "it was the culmination of the trials that rendered him entirely unfit for work" (Exhibit G, p. 31). He makes the following observations: "3. What events led to the development of that diagnosis? Mr Paul has worked in child sexual abuse for many years now. The recent matter that has caused him difficulty is a case where there are 70 victims of sexual assault and Mr Paul has had carriage of this matter for several years. For this matter, Mr Paul participated in a 10-week trial earlier this year for one of the accused and then another 10-week trial more recently for another accused. It was after the second 10 week trial that Mr Paul felt entirety overwhelmed and unable to remain at work. 4. Are there any other non-work-related conditions, including any pre-existing condition, contributing to the workers condition or that may affect recovery? There are no non work-related factors or conditions that are contributing to Mr Paul's condition. A DSM-5 PTSD diagnosis requires exposure to life throating situations or actual death and the client's previous life experiences do not include incidents that elicited PTSD symptoms proximal to the symptom development. I am also not aware of any pre-existing conditions that would better explain Mr Paul's current symptoms other than exposure to repeated events of sexual abuse as a police officer investigating sexual abuse crimes."
Dr Metelerkamp's letter of 20 October 2019 (pp. 27 - 8 of Exhibit G) goes on to state: "Tim is, as you know, somewhat stoic but is surprised that since being off work he feels worse. This is of course exactly what typically happens because when officers have time to reflect and are able to drop the mask they begin to recognise what they actually feel, which is usually pretty awful. Tim's wife was in session recently and she asked if I would please see him weekly because she sees him deteriorating between his fortnightly sessions with me. I will see him weekly for now. Tim remains unfit for work and is unlikely to be fit for work until his mood improves significantly and his hyperarousal reduces significantly."
Dr Alexander Murray's report of 16 November 2019 similarly confirms the nexus between the end of the trials and the Plaintiff going off work: "For the most recent more than 5 years of his service he had been involved in investigating and prosecuting a case of historical institutional sexual abuse involving 70 victims. This job had been progressively exhausting. For the last few years he stayed at work only out of commitment to see the trial to conclusion. After his oral evidence was finished, he went back to work the next day, but realised he couldn't go another day after that. He's been off work since August 2019."
On 1 March 2020 Dr Metelerkamp recommended the Mindfulness program (p. 43). He received a subpoena to attend the Supreme Court for a criminal matter but Dr Murray considered he was too ill to attend (p. 47).
The Plaintiff has remained off work since that time. The expert evidence tendered on his behalf remains consistent in stating that the Plaintiff is unable to work.

Evidentiary Issues

The way in which these proceedings were conducted by both parties is of material relevance to the evidence in these proceedings. These include: 1. The failure to call certain witnesses under subpoena: each of the parties asks me to draw inferences pursuant to Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. 2. Objections reliant upon the operation of s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). 3. Although no defence was pleaded (Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") Pt 14 r 14), a defence based on the absence of liability for the Defendant for the acts of an independent contractor was raised. 4. The circumstances in which the Defendant had to issue urgent subpoenae for all but one of its witnesses either days before or during the hearing as well as giving notice of a subpoena for EAP records just before the hearing started, in circumstances where the Defendant had refused to answer certain questions on this topic in an answer to particulars.

Jones v Dunkel and the failure to call witnesses

The Defendant issued subpoenae to four witnesses on 7 December 2022 and another three in May 2023. Three of those witnesses (Ms Richards, Ms Boon and Mr Feszczuk) are current serving police officers. The Defendant failed to call any of the witnesses under subpoena, including two medical practitioners required for cross-examination. There is no suggestion any of them was unavailable.
Mr Morris SC asks me to draw an inference in relation to the three police officers' evidence and also the evidence of another police officer, Mr Conroy, who was under subpoena issued by the Plaintiff when a document he authored was challenged.
The Defendant submits that the "major material witnesses" (submissions in reply, paragraphs 14 and 15) were called in this case and the other witnesses to which reference has been made in the Plaintiff's written submissions do not reach the level so as to enliven the exercise of the discretion. That discretion should not be exercised having regard to the tangential role that those witnesses played as opposed to the material witnesses who the Defendant called.
The relevant principles are set out in Galea v Bagtrans Pty Ltd [2010] NSWCA 350, where the situation of a witness technically available to both parties is set out. In the present case, apart from Mr Conroy, the interests of the parties do not align.
Each of these police officers had dealings with the Plaintiff in circumstances where he called for help and assistance before Bilvo, during the Bilvo investigation and/or after his secondment to Tuggerah. I will deal with them in chronological order.

Mr Feszczuk

Mr Feszczuk was the Plaintiff's commander in 2004 when the Plaintiff was involved in a serious domestic violence attack on his former wife. The Plaintiff's former wife came to the home after separation and kicked in a door seeking to gain access to a bathroom in which a female (who is now the Plaintiff's wife) was present. The Plaintiff grabbed his former wife from behind and carried her downstairs. There were extended suspensions of the Plaintiff from his duties and he was charged with domestic violence matters. He was convicted and appealed but later withdrew his appeal.
Mr Feszczuk's evidence would only relate, as I understand it, to this period. He signed a statement on 2 July 2021 about these events and describing the counselling on offer to the Plaintiff. That statement went into evidence without objection (Exhibit 1, p. 27).
I am of the view that the events in which he was involved, which occurred more than a decade before the Plaintiff was assigned to Bilvo, play only a very small role in this case. The Plaintiff is still happily married to his second wife and they have a family and, in the absence of evidence to the contrary, appears to have put these matters behind him. That is not to say that the domestic violence incident should not be regarded seriously, and that it is not a black mark on his character and credit. He appears to have had medical treatment at the time, although some of it may have been with reluctance. The sole relevance of these 2004 incidents is, in my view, that when his wife raised issues of his behaviour at home after the Plaintiff was put in charge of Bilvo, he accepted her advice and recommendations to seek WellCheck placements not only for himself but for his team. His subsequent conduct puts his previous conduct into a whole new light.
I agree with Mr Baran that his evidence is tangential. I do not propose to draw a Jones v Dunkel inference in relation to Mr Feszczuk.

Ms Richards

The Plaintiff asked Ms Richards for help in getting his work done after he transferred to Tuggerah, and she endorsed his request for assistance in no uncertain terms, as is evident from her comments on Exhibit C. However, I do not consider the inference should be drawn.

Ms Boon

Ms Boon was an officer to whom the Plaintiff complained about refusals to permit police giving evidence during the Bilvo criminal trials by being able to have lunch allowances on court days due to the lack of court facilities. The Plaintiff was given a meal allowance but the other police officers were told to go to the nearest police station and ask permission to eat their lunch there.
Mr Baran dismissed the Plaintiff's complaints as "industrial" (Tcpt, 8 June 2023, p 352(11)). I do not accept this characterisation. This particular issue is but one example of the Plaintiff seeing his role as a team leader to look after his team on all matters, no matter how small.
Throughout these proceedings, the Defendant has consistently overlooked the fact that the Plaintiff was the head of a strike team who all needed counselling (and one of whom suffered psychological injury) where at all relevant times he sought to support that team. For example, it was put to him that he was so much in denial about his stress and mental health problems that he spent his last day or days at work arguing about "industrial" meal claims for police witnesses in the criminal trials: "HER HONOUR: Well, you say, "industrial matters", but I don't know what you mean by that. So were they to do with this business of meals and how if 30 there's no meal room they're supposed to go to the local police station and have it there? BARAN: Yes. That was one issue. Correct. HER HONOUR: That's down the bottom of 302. WITNESS: Yeah. Meal claims. Yes. Is that what you're talking - HER HONOUR: You [Mr Baran] call them industrial. What would you [the Plaintiff] call them, sir? Would you call them industrial or some other term? WITNESS: I just thought it was - yeah. Industrial doesn't come to mind. I just thought it was cops getting a fair go. … WITNESS: …I can't recall what my last day of service - like, last day before I went off was. But yes, I did - I did make a claim for staff and police that were - that were giving evidence on the trial to be awarded meal claims. Q. That was the very last communications as best you recall in writing with the Command? A. I don't know if it was my last communication or not. I can't say. It was obviously at the latter stages, yeah - given the date. Q. So you were paid a meal allowance while it was in the John Maddison Tower? A. Yes. Q. And there was a problem, was it, with the Darlinghurst Court? A. Yeah. There was no police facilities at all. So I was - Q. I see. So what they were saying was you should to the police station and these other people with the meal allowances - they should go there as well? A. That's - well, they were saying I could have a meal allowance. But they weren't allowing other police that came there to have one. Like, they - that was a bit of hypocrisy." (Tcpt, 30 May 2023, p 128(28) - p 129(38))
I do not regard the Plaintiff's concern about witnesses in a difficult criminal trial being given adequate assistance such as a meal allowance while they were giving evidence as an "industrial" matter, but that is irrelevant.
Mr Morris SC's submission is that if Ms Boon were to be called to give evidence about these matters, her evidence, even though related to a very limited topic at the very end of the Plaintiff's career, namely a demonstration of the Plaintiff asking for help and not receiving it was such that the failure to call her gave rise to the inference. I consider her evidence to be tangential at best and do not draw the inference.

Mr Conroy

The Plaintiff also issued a subpoena at short notice during the hearing. This was addressed to a police officer, Mr Conroy, after the Defendant took objection to Exhibit C (in which his handwriting appeared). After the objection to the tender was withdrawn, the Plaintiff no longer needed to call Mr Conroy. Mr Baran submitted that a Jones v Dunkel point may arise nevertheless. Mr Morris SC responds that any Jones v Dunkel inference arising out of the failure to call Mr Conroy would lie against the Defendant, as Mr Conroy could have given evidence concerning the following: 1. The contents of Exhibit C, where Mr Conroy expressed concern as to the impact of the ongoing investigation of so many historic offences on the Plaintiff's physical and mental health and the Plaintiff's subsequent difficulties at Tuggerah. The Plaintiff shared an office with him and said that he had many discussions with him about the increasing stress over this period. Mr Baran submitted that during these conversations the Plaintiff "was still denying that there's anything wrong" (Tcpt, 8 June 2023, p 350). 2. The matters set out at paragraphs 100, 101 and 120(f)(g) and (v) of the statement of claim. 3. The evidence given by the Plaintiff of his interactions with Mr Conroy and Ms Richard (who was also not called): Tcpt, 8 June 2023, p 376. Ms Richards sent a report stating that the Plaintiff's duties were extremely onerous, and that it was impossible for him to continue without assistance (Tcpt, 8 June 2023, p 376).
It was open to the Defendant, since Mr Conroy was a witness under subpoena, to call him. Mr Baran points to Mr Conroy's concluding opinion in the memorandum, after these conversations with the Plaintiff, that there was nothing wrong with the Plaintiff.
Mr Conroy is not a medical expert and his opinion should be read in that light. The real importance of his evidence is that the Plaintiff willingly opened up to him about his workload, stress and physical and mental health issues, whereas Mr Baran painted a picture (as did Professor Tennant) of the Plaintiff has someone who kept denying symptoms and refusing counselling referrals. Accordingly I draw an inference in relation to the Defendant's failure to call him.

Mr Fenwick and the Chief Psychologist

Although the Plaintiff's submissions do not refer to Mr Fenwick as a witness to whom the inference should apply, Mr Morris SC made observations during the hearing about the Defendant's failure to call him. The relevance of his evidence is that Inspector Yapp states in his email to Ms Freeland that Mr Fenwick was to be in charge of arranging the counselling dates. Inspector Yapp acknowledged that this had not been done. Ms Clark's emails refer to the organising of counselling as having been done by the Plaintiff. However, the Plaintiff should have been treated as a patient, not as an organiser, which was why Inspector Yapp had put Mr Fenwick in this role. I am prepared to infer that his evidence would not have assisted the Defendant.
Mr Baran has the following to say about the (unnamed) Chief Psychologist: "The evidence of Ms Freeland was important in a number of respects, Firstly, she identified the clear distinction between the mandatory well-check [sic] program as opposed to the various programs run through EAP. Her evidence should be accepted that it was her standard practice and still is her standard practice never to initiate any well-check program unless and until it had been cleared by the chief psychologist. Thus, the rational inference should be drawn that the well-check program which was implemented for Strike Force Bilvo not only was being undertaken by Ms [Clark] but also had the approval of the chief psychologist."
I should correct Mr Baran's assertion that WellCheck was "implemented", as Ms Freeland stated categorically that the assistance provided to the Plaintiff and his team was not the WellCheck program but an EAP program, and quite separate. She did, however, state in an equally categorical way that decisions of this kind were made by the Chief Psychologist and not by her. In fact, she said that she was "the last" in the chain of command (Tcpt, 7 June 2023, p 317(19)-(27)), meaning that the Chief Psychologist was the person who should be answering these questions rather than her.
Where a witness tells the court that they were following orders made by their superior in this kind of forthright language, and that superior is not called, there may be grounds for a Jones v Dunkel inference to be drawn. Where neither of the parties asks the court to do so, the court is in a difficult position.
In the circumstances, while I feel I should be constrained by the parties' submissions and not draw an inference, I consider that Ms Freeland's evidence of a system of referral where important decisions are made in this shadowy manner is evidence of a system that is itself negligent, whether the Chief Psychologist is called or not.
The relevant of both of these witness's evidence would have been significant. Inspector Yapp's request for WellCheck should have been given the careful consideration it deserved, and the failure to do so, as well as the failure of the management team of which Mr Fenwick was the appointed person, both amount to breaches of the Defendant's duty of care to the Plaintiff.

Section 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the WIM Act")

The Plaintiff seeks to recover damages from his employer for an injury asserted to be caused by its negligence, and his claim is therefore subject to s 318 of the WIM Act. This restricts the parties from leading evidence in subsequent court proceedings. Its purpose is to encourage the early identification of issues and early resolution of matters without court proceedings (Paper Coaters Pty Ltd v Jessop [2009] NSWCA 1 at [11]).
In his opening remarks (Tcpt, 29 May 2023, pp 7 and 77), Mr Morris SC advised that there would be "considerable" dispute as to the Defendant's entitlement to lead most of its evidence, including a report of Professor Tennant, emails and other materials about the WellCheck program and the evidence to be given by Inspector Yapp. He provided a schedule of these objections, which were very substantial.
What is more, these objections had to be added to in relation to documents produced during the hearing. After the Plaintiff's cross-examination, Mr Baran advised that further documents and witnesses had been located and submitted that this evidence, as well as the evidence to which objection had already been taken, should be led because it was not reasonably available during the pre-trial mediation process (Tcpt, 31 May 2023, p 172), calling upon the principles as discussed in Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 (where the material in question was surveillance evidence) and Australian Winch and Haulage Company Pty Ltd v Collins [2013] NSWCA 327 (where the question was whether quantum items such as management fees not sought earlier could be claimed).
Mr Baran told the Court (Tcpt, 29 May 2023, p 24) that, because his client was a model litigant, it did not intend to object to any evidence led by the Plaintiff on the basis of failing to rely upon evidence not previously exposed. There was little evidence falling within this category for the Plaintiff, but a substantial part of the Defendant's case (such as the report of Assistant Professor Tennant) was either not served as all or (in the case of Ms Clarke and Ms Freeland) led from the witness box or tendered during the hearing. Mr Baran submitted that this evidence should be permitted as well, noting the approach taken by the Court of Appeal in Kubovic v HMS Management Pty Ltd, where McColl JA stated at [104]: "While I accept that the scheme of the pre-filing regime is intended to reduce costs and favour out of court settlements, the availability of adducing further material albeit subject to a grant of leave, demonstrates that the legislature recognises that despite that, purpose, reports or other evidence not disclosed may be relevant to the ultimate outcome. Not all elements of the forensic battleground have been abandoned. However, clearly a trial judge will be careful about testing the issues posed by an application for s 318 leave conscious of the purpose of the legislative scheme but, too, recognising the necessity to consider what is necessary to serve the interests of justice."
Mr Baran sought to rely upon material attached to the affidavit of Mr Gardner, his instructing solicitor, setting out, inter alia, why this material had not been available before. That affidavit provides no satisfactory explanation as to why the Defendant would not have been aware of the counselling provided to the Plaintiff and his fellow officers when the claim was first brought, or the names of those involved in arranging this service and carrying it out, or other evidence about WellCheck that was clearly available at the time. Nor was there any satisfactory explanation as to why Professor Tarrant's report could not have been served earlier.
In his oral submissions, Mr Baran's principal submission was not so much that the evidence in breach of s 318 was not available, but that s 318's "unfortunate language" (Tcpt, 31 May 2023, p 182) was contrary to fairness in case management.
This argument was put in three ways: 1. First, Mr Baran submitted that the s 318 timetable was unduly strict and the Defendant had insufficient time to find material, as the affidavit of Mr Gardner demonstrated. This amounted to a call on the overarching purpose of s 56 of the Civil Procedure Act 2005 (NSW), although this legislation was not referred to by him in strict terms. 2. Second, as is set out in his outline of submissions dated 1 June 2023 (paragraphs 2 - 9), Mr Baran argues that the barest of references to a document or event (such as warning, within the pre-filing period, that an expert report would be filed) would be sufficient to comply with pre-filing requirements. He referred to McKay v Palmers Removalist Storage Pty Ltd [2010] NSWCA 83, where a bare reference in the documentation to driving heavy vehicles and interstate transport (not part of compensation proceedings, or even the trial evidence, but raised in closing submissions) was sufficient for the Court of Appeal to set aside the findings and remit the proceedings to the District Court for mediation (at [32]), without reference to the s 318 issue, although noting that the compulsory mediation required under the WIM Act had taken place. Mr Baran submitted that the same kind of largesse should be applied to the report of Professor Tennant. 3. Third, although not put in direct terms, there was the inference that s 318 was a restrictive form of legislation where the interpretation of McColl JA (namely that courts should apply the exception provisions liberally) should be given the widest possible interpretation.
Section 318 is one of a wide range of compulsory processes prior to commencement of proceedings which are designed to promote negotiation prior to commencement of proceedings and/or ensure fairness. Such provisions are not restricted to s 318 work injury claims (cf ss 26B and 26BA of the Civil Liability Act 2002 (NSW): Michael v State of New South Wales [2011] NSWSC 231 at [73]), but can be found in legislation for other torts such as defamation (ss 12A and 12B) as well as in Federal legislation such as the Sex Discrimination Act 1984 (Cth).
Pre-commencement procedures of this kind have many opponents, and their grounds for complaint generally include attacks on what Mr Baran called "unfortunate language" in terms of the asserted unsatisfactory language of the statute and unfair restrictions. The submissions and rulings in Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FedCFamC2G 323 are apposite, as they involve claims with two different causes of action (brought under Commonwealth and State legislation), each of which had separate pre-commencement steps. The first was an action brought under the Sex Discrimination Act 1984 (Cth), which required the filing of a complaint with the Australian Human Rights Commission for the purposes of investigation and reconciliation and an eventual finding on these issues before proceedings could be commenced (at [26] - [27]). The applicant was prepared to, and did, comply with these procedures, although they took some months, but was not prepared to issue a concerns notice for the other cause of action, a claim for defamation, although all that was involved was the sending of a letter compliant with ss 12A and 12B of the Defamation Act 2005 (SA), answering any request for particulars and then waiting the required 28 days before commencing proceedings. The applicant sent a notice only after commencing proceedings, and then argued that the concerns notice procedure under the Defamation Act was inconsistent with section 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), which created the concept of the Court's overarching purpose and which directs the Court, in the application of its practice and procedure, to facilitate the just resolution of disputes according to law, as quickly, inexpensively and efficiently as possible. Striking out a defamation action for failure to comply with mandatory pre-commencement steps was argued to be contrary to that overarching process.
Although Ms Hooper's argument was unsuccessful and her defamation claim was struck out, this was not the case in Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726, where the applicant's failure to file a concerns notice compliant with ss 12A and 12B of the Defamation Act 2005 (Tas) for all relevant publications and to amend the statement of claim to plead imputations inconsistent with those in the concerns notice led to a similar application to strike out the proceedings. McElwaine J described the Defamation Act as a "legislative morass" (at [16]), which is simply a less polite way of describing legislation couched in "unfortunate language", rejected the defendants' complaints (including an additional defendant not party to the concerns notice) and granted leave.
Mr Baran relied upon similar grounds to ask the court to disregard non-compliance, although he had the added advantage of s 318 actually permitting exceptions with leave, as opposed to a mandatory requirements of the other legislation referred to above. As was the case with Ms Hooper and Dr Cooper, he claims that his client has more or less complied, or tried to comply, and that if his client has fallen short, allowance should be made because of the undue restrictiveness of the WIM Act's "unfortunate language".
Fortunately, it was not necessary for me to determine the long list of objections provided by Mr Morris SC, as the parties told the Court (Tcpt, 31 May 2023, p 196) that they had largely agreed on s 318 issues and these matters were not raised in closing submissions. I have, however, set out the arguments put forward by Mr Baran as these would appear to be the basis of this acquiescence. I would however note that, had I been asked to rule on these issues, I would not have found this an easy task, particularly in relation to the late production of the WellCheck evidence .

The medical evidence

It is asserted by the Defendant to be beyond argument that the Plaintiff did not disclose to Ms Clark, his general practitioner, or any work colleague, any information about his erratic behaviour at home, his increased alcohol consumption, poor mood, insomnia and other significant features. In his submissions, Mr Baran points to the following conduct by the Plaintiff: 1. During his visits to his general practitioner in 2015 and 2016, the Plaintiff is asserted to have failed to tell his general practitioner anything about how he was coping emotionally with Bilvo, even though the general practitioner on two occasions expressed concerns and mentioned the word 'suicide': Defendant's submissions, paragraph 293. 2. The Plaintiff is asserted to have hidden his symptoms from everyone at work, denied that anything was wrong and to have failed to make use of the services of Ms Clark at all times.
The Defendant submits that the counselling the Plaintiff appeared to be seeking, namely WellCheck, would have made no difference if provided, by reason of the Plaintiff's recalcitrant attitude. Even if the Plaintiff had been dealt with as if he were about to embark on work in a specialist CAS unit, he would not have disclosed what he ultimately disclosed to Professor Robertson, Dr Bertucen and Dr Anand. He would not have disclosed that he had previous traumatic incidents or alternatively would have played them down. He would not have disclosed, for example, that in 2004 he was diagnosed with anxiety and depression (Defendant's submissions, paragraph 293).
The Plaintiff's workload complaints to fellow officers and supervisors in 2018 (described in submissions as "belated"), although focused on administrative matters, are argued to strengthen what the Defendant calls "the significantly high percentage" that must be apportioned against the Plaintiff for contributory negligence for having delayed for such a significant period of time in failing to even make the slightest complaint or giving any indication that he had concerns and even then it was only because of the lead up to the trials and not before when looked at in its proper context (Defendant's submissions, paragraph 12).
The Plaintiff's medical evidence sets out the context for the Plaintiff's conduct and points to factual errors concerning the Plaintiff's willingness to attend counselling.

The Plaintiff's medical evidence

The Plaintiff had a long history of dealing with deeply stressful work-related events which gave him a hardened attitude prior the changes which occurred after he began working in Strike Force Bilvo. Dr Bertucen explained how the Plaintiff's current medical care was set up in his report of 14 September 2020 at p. 74 of Exhibit A. Both Dr Bertucen and Dr Anand set out how the Royal Commission had been, effectively, the last straw. Dr Murray issued a concurring report (p. 62 of Exhibit A). Dr Metelerkamp's report, after setting out similar observations, described the Plaintiff's condition as "guarded".
Dr Jeff Bertucen provided a report dated 14 September 2020 (Exhibit A, p. 78): "There is no evidence that suggests that Mr Paul was suffering from any pre existing or psychiatric condition at the time of commencement of his employment with the NSW Police Force in 2000. Likewise, there were no extraneous or non work stressors (aside from the charges in 2003) which may have contributed to the psychological condition. Consequently in my opinion Mr Paul's former duties with the NSW Police Force were the substantial contributor to the psychiatric conditions outlined above and remain so to date."
Associate Professor Robertson confirms that, while the Plaintiff was impacted by stress issues before he joined Bilvo, the real problem was the failure to provide WellCheck or regular monitoring during this period, and that this failure was a continuation of the earlier failures: "Psychological Interventions After Trauma 38. Mr Paul was not subject to so-called 'WellChecks' or regular monitoring in his mental state, even during the high volume of work through his senior role in Task Force Bilbo [sic]. 39. He reported that there was no psychological intervention provided or attempts to assess his mental state following critical incidents including the 2001 domestic violence incident, several 'horrendous' MVAs. 40. At no point during the evolution of Mr Paul's psychological injury, was he referred to the police medical officer (PMO) or to external review by a psychiatrist or clinical psychologist for review of his mental health, fitness for full duties or suitability for modified duties. 41. Mr Paul commented of the workplace culture and level of mental health literacy that he was frequently witness to senior officers making disparaging remarks or exhibiting prejudicial attitudes towards psychologically injured officers, including referring to them as 'mortgage busters'. He reported hearing senior officers referring to police with psychological injuries as being 'off work sad', 'gone booey' or were sent to 'the gimp squad' when placed on non-operational duties."
Associate Professor Robertson stressed the need for early intervention at paragraphs 60 - 62 but specifically draws attention to the failure to set up mandatory quarterly WellChecks in his report of 31 May 2021, when he answered a question to this effect as follows: "[Q] Had the Plaintiff been required to undergo mandatory quarterly well checks, and annual psychological reviews during his tenure with the strike force, on the balance of probability do you consider that he would have been identified as an officer at risk, or indeed as suffering, from psychological harm? [A] Had regular, properly conducted mandatory quarterly well checks, i.e., a combination of clinical and psychometric monitoring been implemented, it is more likely than not that an exacerbation of Mr Paul's extant work-related psychological injury would have been detected and appropriate interventions implemented, including his removal from the traumatic stress exposure and the provision of timelier psychiatric or psychological treatment."
Mr Baran is critical of the two reports of Associate Professor Michael Robertson on a number of grounds: 1. He disputes the correctness of the statement at paragraph [38] that the Plaintiff was "not subject to so called well-checks or regular monitoring…even during the high volume of work…in Task Force Bilvo". Mr Baran submits that the evidence "of course reveals that this is wrong" because of the evidence of Ms Clark and Mr Henkel. However, this evidence is correct, in that the Plaintiff was not in WellCheck at all, but having counselling on an ad hoc basis which ceased in about 2016 at a time of high volume of work on Bilvo. 2. He disputes the use of the term "first responder", saying this is not a correct description of the Plaintiff's role, but does not explain why. Whether the Plaintiff was a first responder or not, he sought, and it was agreed by his supervisors that he was entitled to, the use of the WellCheck system. This was not what was provided. 3. He states that the early incidents demonstrating disturbed behaviour were all "reactive to personal stressful situations" such as the domestic violence incident in 2004. Other incidents, including an argument in a bar, were "reactive" (submissions, paragraph 266). He concludes by submitting that the Professor's opinion "suffers terribly from an inaccurate assumption that the doctor was asked to make" in that he does not appear aware that the Plaintiff saw a psychiatrist in 2004. This is a counsel of perfection to the Professor's report; the real question is what was provided when Bilvo was set up.
As noted above, the Professor's report correctly states that the Plaintiff was not provided with the WellCheck program. This is information he would have received from the Plaintiff, based on his own observations of what he was offered. The benefit to the Professor of being able to discuss these matters with the Plaintiff is obvious. That benefit was not available to the Defendant's expert, Professor Tennant.

The Defendant's medical evidence

The Defendant tendered medical evidence which referred to specific conduct by the Plaintiff indicating that the Plaintiff, despite being provided with a diversity of welfare resources, well-advertised and easily accessible, had failed to avail himself of them, repeatedly denied his symptoms, refused to consider or consult medical assistance and generally been responsible for his own illness. This medical evidence does not refer to the fact that the Plaintiff, of his own initiative, did seek to avail himself of the WellCheck system after Strike Force Bilvo was set up. Mr Baran does not explain why, in those circumstances, the Plaintiff should continue to shop around for other welfare resources as well as seeking WellCheck program counselling. There is no expert evidence to the effect that multiple counselling sources can be more effective, or quicker, than counselling from one source.
The only medical report served by the Defendant is the report of Professor Tennant. Mr Baran summarises its contents at paragraphs 271 - 291, although without directly quoting any of its contents. At paragraph 292 of his submissions, Mr Baran makes the following submission: "It is submitted that Professor Tennant, who advances a very straightforward evidence-based opinion, should be preferred and that there was a significant interplay between aggressive behaviour on the one hand as opposed to the plaintiff's apparent normality at the command on the other. The plaintiff was not a person who ever disclosed to Mr Yapp that he was not well or to anyone else for that matter until after he submitted his P902, indeed in 2021. In those circumstances and even with the intervention of EAP the plaintiff on the balance of probabilities continued to disclose that he was travelling well and had no issues."
Before answering this submission, I must analyse what Professor Tennant actually said, and include direct quotations instead of the summarising technique employed by Mr Baran.
Professor Tennant starts his report by setting out the relevant judicial decisions he has studied. He endorses State of New South Wales v Briggs, saying that it "relates to "screening"" (I was unable to find this word in the judgment, but it may be a reference to the "vigorous debate" about PTSD prevention at [122]). He adds that this judgment is consistent with State of New South Wales v Seedsman [2000] 217 ALR 583 (which also does not refer to "screening" as such). He then endorses "the High Court judgement [sic], Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15, addressing issues of duty of care and breach", which he states must involve a recognisable injury that is reasonably foreseeable; the Defendant should act as a "reasonable person" (his report predates the High Court's decision of Kozarov v Victoria). He concludes his analysis of the legal issues by stating that "In this regard. [sic] I understand these judgments are based on the balance of probabilities" (paragraph 5 of the report of 9 November 2011).
After these references to how the court should deal with the fact-finding process, Professor Tennant's report turns to criticism of Associate Professor Robertson's asserted incompetence and dishonesty. For example, he says Associate Professor Robertson "does not understand" the role of the general practitioner, "misleads" the court in his discussion of body handling, is "not familiar with important literature", that he has "misquoted" a reference he has provided and that his report "is inconsistent with Makita v Sprowles [sic]" (although, regrettably, not exposing his reasons for this opinion, or indeed any of the other criticisms he makes of Associate Professor Robertson).
Experts provide reports to assist the court, not to attack the opposing expert in rhetorical language of this kind: Ali v Caton & Anor [2013] EWHC 1730 (QB) (at [198]). In Siegel v Pummell [2014] EWHC 4309 (QB) the Court stated at [229]-[230]: "[229] I have reviewed the evidence of Dr Walton in detail at 183 - 198 above. In the course of that review I have identified the numerous occasions in the course of his cross-examination where Dr Walton was obliged to withdraw or qualify important and unjustifiable observations in the written reports. In my judgment, having identified early on that there were apparent inconsistencies in Jubair's presentation, Dr Walton lost the objectivity that is essential for a witness who is requested to provide independent expert evidence to the court. Particularly damaging, in my view, was his willingness to enter into areas where he lacked any valid expertise. This included his mistaken questioning (in his May 2012 report) of the validity of Dr Bradley's views about Jubair's hearing of voices, and his progressive hardening of view on the question whether Jubair would have been able to obtain and maintain a career in the police force. Equally damaging was that, although he asserted that a neuropsychologist could not express any reliable opinion in the light of Jubair's response to the SVTs and appeared to dismiss the value of clinical observations as a basis for clinical judgment, he was prepared to express his opinions in terms which left no room for doubt that Jubair was a malingerer (in the broad and pejorative sense of being someone who was knowingly feigning the his disabilities in order to promote a fraudulent claim). [230] Viewed overall, I preferred the measured and cautious approach of Dr Powell to the more dogmatic and frequently unjustifiable approach of Dr Walton."
Conformably with his obligations as an expert, Professor Tennant needs to expose the reasoning behind his allegations of misleading and misquoting, and failure to do so will materially undermine the value of his findings as well as of his expert opinion. Professor Tennant says that he has complied with his obligations to expose his reasoning by putting the relevant material "in my appendices". There are 11 Appendices consisting largely of lists of further dogmatic statements, indigestible references to material to which I have no access such as "Data from the UK military" (Court Book p. 117), references to medical articles which are not provided, references to the police "intranet" (for example, Court Book p. 117; is this a reference to Nemesis?) and references that have to be cross-referenced with other references in order to find out what these are.
I also note factual errors and omissions: 1. His report focuses almost entirely upon the matrimonial assault and subsequent charges which occurred in 2004. The circumstances in which the Plaintiff proposed, and Inspector Yapp initiated, a request for him and his team to join the WellCheck program at the commencement of Bilvo a decade later, and where the Plaintiff liaised with Ms Clark for several years while working on Bilvo, as well as what the Plaintiff's told his own general practitioner, are not referred to at all. 2. He appears to have overlooked the years of work the Plaintiff did for the Royal Commission entirely, although this (and the trials that followed) was said by the Plaintiff's medical experts to have been the trigger. The Plaintiff's work for the Royal Commission is not even mentioned. 3. He refers (at paragraphs 66 and 67) to the services of EAP being readily available if a report is written by a supervisor, without acknowledging that this was in fact what happened. The questions he should have answered were whether the Plaintiff participated in this counselling willingly, why the team was not accepted into the WellCheck program and whether the desultory services provided were sufficient. 4. He notes that peer support and EAP would "ordinarily recommend consultation with a GP", the inference being that the Plaintiff would have received this advice if he had sought assistance from the EAP. In fact, although the Plaintiff was having EAP consultations, he was not given this advice, but he nevertheless saw his own general practitioner of his own initiative in 2015, 2016 and 2018. 5. He is clearly unaware of the mandatory provisions in the WellCheck program which postdates the Ombudsman's 1999 report to which he refers at paragraph 59 (see his similar denial of mandatory referrals in paragraph 63). It would appear he is entirely unaware of the WellCheck program, although it has been available for over two decades. 6. He states (at paragraph 64; see also paragraph 31) that the general practitioner who is consulted by a police officer must "importantly, communicate with the employer" and is critical of the Plaintiff's general practitioner for not doing so. I was not addressed as to any legislation requiring medical practitioners to take such a step when consulted by a police officer. 7. He refers to resources about which I have heard nothing. He states that there were "regular operational debriefs" for the Plaintiff at work, although the only debriefs referred to in the evidence, apart from the 3 - 4 group sessions conducted by Ms Clark, were the Plaintiff's meetings with his own men. He states that there was "good psycho education" provided without stating what this is. He asserts that the Plaintiff "would have been aware of welfare services" but did not use them, when in fact the Plaintiff initiated the proposal for WellCheck to be put in place. 8. If what Professor Tennant is asserting (at paragraph 44) is that the Plaintiff never disclosed to Inspector Yapp or indeed anyone that he was not well, that is not what I have found from the evidence.
Professor Tennant's opinions about the Plaintiff's medical condition appear inconsistent. In some parts of the report he claims that the Plaintiff does not have any problems at all (paragraphs 65, "no apparent problems" at paragraph 26; "not suffering" at paragraph 37; "no signs of psychological illness" at paragraph 108, although this may possibly be a repetition of an opinion from Superintendent Gralton). In other parts he says the Plaintiff does have PTSD but as a delayed onset injury in 2019 (paragraph 53; I assume, since this comment is in brackets, that it is Professor Tennant's view and not the view of the author of the report that he is criticising). He says that the Plaintiff had PTSD in 2004 but that it was all his own doing.
Professor Tennant concludes his report as follows: "There has been no omission or commission by the employer such as to case [sic] any lots [sic] of chance or opportunity for a better outcome. There has been no negligence and I do not believe there is any liability."
The role of the expert is to assist the court. This report does not do so. It is an angry response to reports from another expert with whose expertise and knowledge Professor Tennant has taken issue and where the reasoning is not exposed. It fails to refer not only to the WellCheck and GP visits initiated by the Plaintiff, but also to the Royal Commission work and its nature. It is internally inconsistent in terms of both fact and opinion.
In addition, this is a report which merely summarises other reports (and documentation which is largely described as "noted" or merely listed) and where the Plaintiff has not been interviewed. While it will not always be the case that courts prefer such reports to the reports of experts who have had a consultation with the person about whom they are writing a report, it is a relevant factor.
The style and manner of presentation makes the report difficult to read. There is much underlining and commenting in bold (sometimes both), use of larger and smaller font and confusing numbering coupled with letters of the alphabet. Sometimes this process is reversed and the feature to be emphasised is not put in bold, while the rest of the sentence is. The report is written as if Professor Tennant has picked up his Dictaphone and started dictating notes to himself, resulting in incomplete sentences.
Professor Tennant's report is of little or no value. In those circumstances, the expert reports of the Plaintiff must be preferred.

Conclusions concerning the evidence

The Plaintiff was an impressive witness who answered questions frankly, making concessions where appropriate. His evidence was not only internally consistent but was consistent with contemporaneous documentation, both externally (in terms of records kept by others such as EAP) as well as police records (such as the emails about the setting up of the counselling request after the Plaintiff raised this with Inspector Yapp). He conceded where he did not have any recollection of events and did not seek to embellish his answers or to be argumentative. His evidence was supported by that of his wife and each of them corroborated the evidence of the other.
The Plaintiff's evidence was that, from early in his time in the police, he had attended numerous traumatic and/or gruesome crime scenes, following which he had suffered stress-related health problems such as sleeplessness and began drinking heavily. He contemplated resigning in 2001 but did not do so. His marriage broke down in 2003 and this contributed to his stress. His conduct in 2004 in assaulting his former wife when she came to the former matrimonial home resulted in criminal charges and suspension from the police service. It is to his credit that he managed to rehabilitate himself, both personally and professionally. He married again and had children and has a stable homelife.
I find that his professional life would have continued along the same trajectory and not spilled over into illness, despite a degree of PTSD being present, if he had not been chosen to set up and run Strike Force Bilvo, a job which initially looked like involving about three victims of historic sex abuse but which quickly grew to enormous proportions, and which had an immediate observable effect on him, according to his wife. Whatever the Plaintiff's prior track record in relation to seeking and accepting counselling for stress-related behaviour, he did not make that mistake again, and it is to his credit that he did so.
Stripped of the surplusage of documentation which has been put before me by the Defendant, this is a straightforward case of a hardworking police officer who, unexpectedly finding that an inquiry he was working on has gone from a couple of victims to dozens and become a high-profile investigation, is given some excellent advice by his wife, herself a career officer in a specialised sex crimes unit and familiar with the stresses of sex crime investigation. That advice was to point out to her husband that his behaviour was changing and that he needed to have the same counselling of the same kind as had been provided to her, namely the WellCheck program.
The Plaintiff put his wife's proposal to his supervisor, Inspector Yapp, an officer who not only understood what Bilvo was likely to entail, but possessed academic qualifications which would have been of material assistance in assessing the viability the Plaintiff's request. He wasted no time in obtaining the enthusiastic support of other senior police and in immediately contacting Ms Freeland of EAP, who emailed him back straight away with a proposal.
Regrettably, however, Ms Freeland did not reveal that someone else, possibly the Chief Psychologist, had decided that the Bilvo team would not be included in WellCheck. Without making this clear, she did offer a kind of one-off program of group sessions followed by one-on-one sessions, for an unspecified period and the reality is that the sessions were further and further apart and increasingly perfunctory. The reasons for this were never explained. I am satisfied that none of the senior police who had supported this proposal, and certainly not the Plaintiff, were ever told that the specific request for WellCheck was being refused.
In the meantime, the Plaintiff had also wasted no time in putting the counselling sessions in place. He arranged and attended the group sessions to Ms Clark's satisfaction, including having one private session. As noted above, however, according to the evidence of both the Plaintiff and DSC Henkel, these sessions, far from being of the WellCheck variety, were meetings of a superficial nature. Additionally, it is clear from the correspondence and from the Plaintiff's evidence that Ms Clark treated the Plaintiff as an organiser, and not as a patient.
The Plaintiff became dissatisfied with how counselling was going and complained to Inspector Yapp that one of his officers had turned one session into a joke by showing up dressed as a priest. Others were circulating joke photographs. There was no follow-up and no recognition by anyone that this sort of conduct could be a "red flag".
In 2015 and 2016, the Plaintiff visited his general practitioner several times and describes his symptoms frankly and in some detail. He was given medication but not a referral, most probably because he has told his doctor that he was having work counselling, as his doctor noted this. The Plaintiff was not cross-examined about the contents of the general practitioner's clinical notes.
The Plaintiff also sought to cope with stress by changing physical aspects of his employment, such as making applications for a transfer. He obtained a transfer to Tuggerah, where he shared an office with Acting Inspector Mark Conroy and Senior Sergeant Samantha Richards. This made little difference to his workload or stress as he, as well as these other police officers, continued to be exposed to traumatic incidents at Tuggerah (see, for example, Exhibit D, pp. 3 and 4) while he continued to work on Bilvo. He consulted his general practitioner in March 2018 complaining of insomnia and work stress, but no diagnosis was recorded. He was, however, counselled by Acting Inspector Conroy and advised to provide a medical certificate for all work absences, which he did.
As Bilvo drew to a close, the experienced officers working with him were gradually reassigned and the counselling sessions stopped. The Plaintiff was left to run the prosecutions arising from the investigations himself after Philip Marino went on sick leave in April 2017. He asked for a properly trained "2IC" and received a strong recommendation from Ms Richards. He was offered an assistant with no experience and with whom he had a poor working relationship and, when he refused to accept her, no more help was offered. It is clear from his evidence that he was discussing his problems with his peers and supervisors as well as his general practitioner. However, he was never directed to the police psychologist or to a police medical officer (Tcpt, 30 May 2023, p 140).
As the criminal trials arising from Bilvo started, the Plaintiff was struggling to assist the prosecution on his own. One problem he had was looking after police witnesses where there was a lack of proper court facilities during the lunch adjournment. He asked for assistance, but it was refused.
The Plaintiff went on leave after the offenders were convicted and his doctors quickly established that he was not fit to continue working. He has not worked since.
As is set out above, the Plaintiff relies upon a series of medico-legal and treating doctors' reports where those doctors have not been required for cross-examination. Aside from the comments made by Professor Tennant (which, for the reasons set out above, I have rejected) and the challenges to accuracy in Associate Professor Robertson's report made by Mr Baran, no assertion is made that these reports in any way offend the principles relevant for reports to the court.
In contrast, the Defendant's witnesses either do not recall what happened at all (as is the case with Ms Clark), or denied being part of the decision-making process about counselling (as is the case with Ms Freeland), or had only a very general recollection of the events (as was the case for the Defendant's other witnesses). In those circumstances, the importance of the contemporaneous documentation (all of which supports the Plaintiff) is increased.
Notwithstanding these drawbacks, Mr Baran submits that the Plaintiff's evidence should not be accepted because he was fully aware he had been exposed to trauma, yet he did not disclose to the command or to anyone that by 2015 he was suffering from significant behavioural issues at all such as chronic insomnia, heavy drinking, anger outbursts and other behaviour which so concerned Mrs Paul that she advised him that he ought to ask for the WellCheck program to be put in place.
This is not correct. When the Plaintiff went to Inspector Yapp with his idea of the team enrolling in the WellCheck program, he made a point of telling him that it was his wife's idea. I am prepared to infer that he would have included, in that conversation, that she had been motivated by his behaviour. I consider Inspector Yapp would have been less likely to have made such a recommendation if the Plaintiff had assured him that he was fine and had no problems. That would be consistent with the openness with which the Plaintiff was prepared to discuss his problems with his general practitioner and with Acting Inspector Conroy.
I do not accept Mr Baran's submissions that, unlike the frankness the Plaintiff demonstrated with his general practitioner as well as to Inspector Yapp when he passed on his wife's proposal of WellCheck, he would have, and did, hide these problems from Ms Clark. He was seeing Ms Clark at the same time as he was seeing his general practitioner, and was likely to have given the same information to both. The real problem was not the Plaintiff, but the inadequacies of the counselling process. First, some of the team started turning the counselling into a joke but nothing was done, even after the Plaintiff complained to Inspector Yapp. Second, although the Plaintiff did not know it, the reason he was not having WellCheck counselling in the same way as his wife was that he and his team were not in WellCheck. In those circumstances, his criticisms of Ms Clark are understandable.
Mr Baran submits that the practical steps the Plaintiff took to try to improve his work situation were simply work arrangements, not a cry for help. He made similar observations about the Plaintiff's concerns over police witnesses not being given meal allowances. Implicit in many of his submissions was the suggestion that the Plaintiff had brought this on himself by not complaining to anyone, while at the same time inferring that his work duties for Bilvo were not sufficiently distressing to warrant inclusion in the WellCheck program at all.
The Plaintiff has taken an important procedural step to counter this argument, namely to seek notices to admit to the effect that the duties of the Plaintiff and his team were the same or similar to those police officers such as the Plaintiff's wife who were members of sex crime units. Mr Baran's attempt to go behind this admission and to seek to argue that WellCheck was not really warranted in the first place accordingly fail.
Mr Baran's argument justifying the refusal of WellCheck came to the fore when he objected to a question asked by Mr Morris SC: "Q. Are you saying that for officers engaged in a sex crime investigation of considerable duration, outside the sex crime squad or the child protection and sex crime squad, they had no access to a WellCheck program? A. They were not part of the WellCheck program, that's correct. Q. And so despite the fact that they were exposed to exactly the same traumatic material, and for a considerable duration, they would not be psychologically assessed for their suitability to perform those tasks prior to their deployment; is that correct? BARAN: I object. HER HONOUR: On what basis? BARAN: There's a false assumption built into that question, namely that the duties were precisely the same, they were not-- HER HONOUR: No, they're same or similar. BARAN: Well, your Honour, with great respect, one unit, namely, the CAS, is looking at imagery and that kind of thing. This particular unit are investigating by access to taking statements from individual adults. The evidence was clear in this case that there was no exposure whatsoever to anything else, but to one-on-one statement taking. It's a very-- HER HONOUR: Is your point that some people are looking at pictures and others are taking statements? BARAN: Yes, to look at a video of a child being raped at a very, very young age, as opposed to having a discussion and then taking a statement with an adult victim-- HER HONOUR: Where do I find the evidence of that? BARAN: I don't think there was an issue, your Honour, that in Strike Force Bilvo, there was no imagery, nothing. HER HONOUR: No, where do I find the evidence that taking the statements of, for say, 70 witnesses who repeat graphic details and perhaps break down and weep and things like this is not the same kind of stress as looking at children being sexually abused; where do I find-- BARAN: I'm not saying it's not the same kind of stress, I'm saying it's a different kind of event, or a different kind of act that is being performed. HER HONOUR: Where do I find the evidence of this? BARAN: Well, your Honour doesn't find from the evidence, but-- HER HONOUR: Well, in that case, Mr Morris can ask the question can't he - unless there is some specific evidence that interviewing up to 70 people who tell the most terrible and graphic stories is somehow less or different to seeing - having to look at videos and things like that or having to clean crime scenes after sexual assaults have occurred or whatever it is that's the stressor. BARAN: I'm not saying it's less, your Honour. Obviously. What I'm saying is, that there is a different kind of exposure. HER HONOUR: But there's no evidence of that, Mr Baran, now, is there? BARAN: I would have thought, your Honour, just an inference that your Honour can draw." (Tcpt, 7 June 2023, p 306(02) - p 307(13))
I then sought Mr Morris SC's assistance in finding the relevant admission: "HER HONOUR: I'm not going to draw inferences like that. I'm not going to do anything unless there's expert evidence. Mr Morris, can you help me out, here? MORRIS: Yes, your Honour. Exhibit A, which is the pleadings court books, p 158. HER HONOUR: Yes, go on, 158. MORRIS: These are admitted facts. Paragraphs 15 and 16. HER HONOUR: I thought that was the case. MORRIS: And 17. Now, that's the way we've been proceeding in this case." (Tcpt, 7 June 2023, p 307(15)-(28))
The effect of these admissions being made is that the circumstances in which the Plaintiff and his team were denied access to the full WellCheck program when they fitted what the Defendant admits was the criterion for such services was a negligent act in itself, as well as being part of a negligent system of referrals whereby decisions of this kind were not only made arbitrarily but not communicated either to the Plaintiff or to Inspector Yapp. The failure to provide WellCheck when it was sought was compounded by Ms Freeland and the EAP's negligence in not informing Inspector Yapp of what they had decided and why, as well as the inadequacy of Ms Clark's counselling.

Negligence

The parties did not address me in relation to the test under s 5B of the Civil Liability Act, but the statutory framework is the starting point for this exercise, and I have been guided by the approach taken by Garling J in Benic.

Negligence - findings concerning breach of duty of care

The evidence demonstrates that the Defendant failed to implement - or to implement properly - the very systems that the Plaintiff, disclosing his home issues as the catalyst for his request, had asked to be put in place. The Plaintiff was already at risk of PTSD from his long history of graphic crime scene, but the tipping point clearly came after the build-up of work from Bilvo began.
Unfortunately for the Plaintiff, the EAP manager (Ms Freeland) failed to explain that the counselling offered was not WellCheck at all; the supervising officer (Inspector Yapp) was unaware of his duties (whether WellCheck or otherwise) and failed to supervise the counselling; the officer in charge of ensuring attendance (Mr Fenwick) never did so; the counsellor (Ms Clark) provided gave such limited assistance as to amount to negligence; the counselling appears to have stopped entirely after the Plaintiff was transferred to Tuggerah in late 2016; and there was no follow-up by his supervisors at Tuggerah when they must have known he was having (or supposed to have) counselling for the duration of Bilvo. In relation to each of these persons, there was no recognition of the "red flag" issues, even after the Plaintiff complained about the incidents involving Mr Marino, and even after Mr Marino himself had to take stress leave.
This was, to use Mr Morris SC's description, a "catastrophic" (at paragraph 165) failure at every level of the system. The breach of duty of care is "the failure by the State to follow its own system in dealing with the appellant" (Sills v State of New South Wales at [2]).
This "system" evidence is as follows: 1. The Plaintiff was already at risk by reason of his former work. He had no way of knowing, when he accepted the managerial role in Bilvo, how big this task would be. The Defendant did. 2. The WellCheck system with its regular interviews and testing would have been of significant assistance to the Plaintiff and his team and they should have been included in it. As Mr Morris SC states in his submissions (at paragraph 111), the failure to include the Plaintiff and his team amounted to a breach of duty of care. It was the only system that could have helped the Plaintiff both for himself and as part of his team, as the other asserted sources of help were either unqualified (such as the chaplain) or the "pitifully inadequate" (Plaintiff's submissions, paragraph 115) articles in back issues of the Police Weekly or one of the thousands of emails on the Nemesis portal. 3. The Plaintiff was particularly vulnerable because he had a long period of employment in the Police Service during which he had not been offered counselling. It is no answer to say that the Plaintiff should have realised he was unwell as avoidant conduct is a common problem to persons suffering from the Plaintiff's illnesses, as Sackville AJA noted in Sills v State of New South Wales. 4. Although the Plaintiff was acknowledged by his superiors to be a person falling within the WellCheck parameters and as needing its structure and content, this did not occur; there was a generalised failure to inquire and he was not obliged to diagnose himself when he had sought this assistance. While Mr Morris SC suggested in his submissions (at paragraph 147) that this was due to Inspector Yapp's lack of knowledge, I would additionally note the evidence of Ms Freeland that the real reason was that the Plaintiff and his team were never enrolled in WellCheck at all. What is more, the Plaintiff was not told about the refusal of his request for WellCheck program entries for himself and his team. 5. After the Plaintiff was sent to Tuggerah, counselling had ceased even though the Plaintiff was still working on Bilvo. His workload grew even larger when Philip Marino went on stress leave in April 2017. At the same time he was expected to carry out often distressing duties at Tuggerah. Neither of his supervisors appears to have made any inquiry of the Plaintiff's dual role. Even if they had, the Traumatic Incident Register at Tuggerah was inadequately kept and recorded only two incidents involving the Plaintiff. 6. The loss of Philip Marino should itself have been a red flag in April 2017. When the Plaintiff sought a competent senior officer to replace him, the "system" let the Plaintiff down again, in that he was offered the services of an officer without the required assistance and known by him to be incompetent. 7. The Notice to Admit Facts of 16 June 2022 confirms that the Defendant was aware of the above, especially in relation to the Bilvo investigation and preparation for trials.
I have rejected the Defendant's claims that the Plaintiff withheld from disclosing his ongoing problems to his superiors. I am satisfied that, at the time the Plaintiff came to realise he needed WellCheck, he gave disclosure to all concerned, and in particular to Inspector Yapp, that he was struggling psychologically and required counselling. Had the Defendant's servants or agents fulfilled their obligations to supervise the Plaintiff and his team, these problems could have been addressed very early.
I am also satisfied that there were other resources which could have been applied to the Plaintiff and his team, such as the Support Database User Guide for the Field, one of two projects approved by Ms Freeland. Despite Ms Freeland knowing the Plaintiff and his team were not on WellCheck, she and her superiors did not look into including them in this program either. I reject the submission of the Defendant that the Plaintiff was to blame for not contacting the EAP; this was a task for Inspector Yapp in any event, as his WellCheck emails confirm. I dismiss the assertions that the Peer Support or Chaplaincy services could have been of assistance; the Plaintiff (and, importantly, the officers in his team) needed psychological counselling, not the assistance of untrained persons.
Each of the above matters is sufficient to amount to a breach of duty of care by the Defendant. Essentially, the Defendant failed proactively to enforce the systems in place, not merely in part, but entirely.

Causation

The relevant principles are set out by Garling J in Benic v New South Wales at [498] - [519] (although with some reservations as to the views in [515] and [516]). His Honour's conclusion, at [520], is that the court must decide whether, but for the failure of the Defendant to provide a safe system of work which included referral of the Plaintiff for early intervention, the Plaintiff would not have developed the problems which have since been diagnosed. The Plaintiff must establish factual causation (at [539]) and that any direct evidence of the Plaintiff is not admissible: s 5D(3)(b) of the Civil Liability Act 2002 (NSW). Having determined this issue, I must then have regard to the medical evidence (at [548]).
The Plaintiff submits causation is established in the following respects: 1. If the traumas early in his career had been identified and marked as a critical or traumatic incident, the Plaintiff would have been provided support and was more likely than not to be referred to the EAP. This would have nipped the problem in the bud. 2. If his symptoms arising from traumas in the years prior to 2014 had been identified (for example, by the kind of psychometric testing offered by WellCheck before an officer took up a position) his ability to take on duties with such a particular risk would have been examined. It may well have been the case that he would not have been put in charge of Bilvo at all. Alternatively, with a program like WellCheck in place, he would have been carefully monitored. Any such examination of the Plaintiff would have included careful attention to the events in 2004 where the Plaintiff was convicted of domestic violence offences against his former wife and would have included education of a specific nature. 3. If WellCheck counselling and checks had been undertaken in accordance with the Plaintiff's own request (and that of Inspector Yapp), these problems would have been picked up very quickly. I would add to the Plaintiff's submissions that if Ms Freeland had explained that WellCheck programs were not in fact being offered, the Plaintiff, his team and Inspector Yapp may well have been proactive in seeking other support systems; as it was, the Plaintiff was given a false sense of security by believing that the welfare checks he saw his wife having were on offer to himself and his team, when that was not the case. 4. If the Plaintiff's memorandum of September 2018 had been properly considered and the concerns of Acting Inspector Conroy and Ms Richards taken into account, the Plaintiff would have been able to be diagnosed and treated earlier.
All of the Plaintiff's treating and medico-legal evidence arises from examination of the Plaintiff, unlike the evidence of the Defendant. Dr Bertucen, Dr Anand and Associate Professor Robertson all state that the Plaintiff's duties from 2014 onwards very materially contributed to the Plaintiff's psychological injury. That injury caused him to cease work on 21 August 2019 and was the basis of the Plaintiff's medical injury.
The Defendant, relying upon Professor Tennant, submits that the Plaintiff is the author of his own misfortunes, in that he did not seek counselling, or disclose to Inspector Yapp that he was having problems at home with which he could not cope. The Defendant also submits that the circumstances of the Plaintiff's marital breakdown and treatment of his children are indications that there are other stressors in the Plaintiff's life such as his domestic violence charges and the disciplinary proceedings which followed.
I accept the Plaintiff's medical evidence and am satisfied that the Plaintiff's duties on Bilvo from 2014 onwards were the catalyst. I do not accept the Defendant's argument that the Plaintiff was still brooding over his divorce from his previous wife more than a decade later. He went on to a happy marriage and fulfilling family life. Perhaps the best indicator of the strength of that family life is that his wife was able to talk to him about his work stresses and make suggestions about counselling, which he took. That is not the conduct of a man still affected by his divorce from his previous wife a decade beforehand or by the consequential suspension from work at that time.
I am satisfied that the Plaintiff's psychological injuries arise from his police duties, and particularly by Bilvo, and not from the circumstances of his divorce or the domestic violence proceedings occurring more than a decade before the events the subject of this application. His successful police career over that ensuing decade confirms this.
I should briefly add some observations about breach of statutory duty, as it is pleaded in the Statement of Claim. I accept Mr Morris SC's submissions as to Regulations 36 - 38 but, given my findings on the other issues in this case and the very limited nature of the submissions of both parties, I see no need to make any formal findings.

Contributory negligence

The following particulars of contributory negligence were pleaded: 1. failing to take proper precautions in all the circumstances for his own safety and wellbeing; 2. failing to disclose to his nominated treating doctor, the full extent of his psychological condition in a timely manner so as to obtain a medical certificate confirming himself to be partially or totally unfit for operation of police duties; 3. failing to disclose to the Defendant the full extent of his psychological condition in a timely fashion or at all, so as to facilitate provision of suitable alternative duties; 4. failing to seek assistance from the Defendant in all of the circumstances; 5. failing to adequately advise the Defendant's health services directorate of the development of any psychiatric and/psychological condition; 6. failing to engage in a timely fashion or at all with the Employee Assistance Program, the Peer Support Program or the Chaplaincy Program; 7. failing to request the Defendant to provide counselling, support and/or debriefing to assist in the management of a psychiatric and/or psychological condition; 8. failing to consult his local medical practitioners in a timely manner in order to obtain guidance, assistance and treatment; 9. failing to adequately advise and/or warn the Defendant that he was unable to perform the inherent requirements of his duties without undue risk of injury.
I make the preliminary observation that the evidence in these proceedings is inconsistent with the facts set out in these particulars. For example, the Plaintiff saw his general practitioner as early as March 2015; he did not fail to request counselling but was in fact its initiator for the whole team; he was in an EAP program; and he did seek assistance, both in terms of counselling and non-counselling help, from the Defendant. The Defendant must have been aware of this but Mr Baran made no application to amend those particulars during the hearing.
Mr Morris SC also submits that the Defendant gave inadequate and unhelpful answers to the Plaintiff's solicitors' request for particulars (Plaintiff's submissions, paragraph 215), such as stating that requests for the names of EAP providers were not a proper request for particulars and then issuing a subpoena to these providers a matter of days before the hearing. What is more, the Defendant then used this information to call one of the psychologists whose identity was not disclosed in the s 78 notice, the Pre-Filing Defence or answers to particulars sought by the Defence.
As is evident from the frequency with which the Chaplaincy is mentioned in submissions, Mr Baran submitted that the failure to consult the Chaplain was a significant and substantial failure. I consider that the Chaplain would have been an inappropriate person for the Plaintiff to consult, as not only was trained professional support, rather than religious assistance, necessary, but the Plaintiff had the rest of his team to consider and include in any such consultation. They could hardly all show up together for a group session followed by individual advice.
The same is the case with the Peer Support scheme. In addition, Mr Morris SC pointed out that there is no evidence of a PSO attached to the commands from where the Plaintiff operated.
Although not referred to in the particulars of negligence, Mr Baran also referred to information available on Nemesis. I accept Inspector Yapp's somewhat disparaging reference to Nemesis as a site churning out hundreds of emails a day (Tcpt, 1 June 2023, p 206) and I note Mr Morris SC's submission (at paragraph 208) that the Defendant has failed, amongst the thousands of documents tendered, to include a single Nemesis document. I do not accept that contributory negligence arose by reason of the Plaintiff using methods such as Nemesis for diagnosing himself; such a submission is little better than asserting that the Plaintiff should have looked up his symptoms on Google.
Mr Baran submits that, if the court finds that throughout the entire process the Plaintiff was inherently unwell to his knowledge yet said nothing and, in effect, engaged in deliberate acts of non-disclosure to Ms Clark and to Mr Yapp (submissions in reply paragraphs 12 and 13), damages should be reduced by 50%.
As Garling J points out in Benic v New South Wales at [625], the provisions of s 5R of the Civil Liability Act are applicable (I note that there is no reference, in the defence, to any provisions of the Civil Liability Act in relation to any issue, and that failure to do so has had adverse consequences for other Defendants - see, for example, Watson v Meyer [2013] NSWCA 243 at [81] - but this decision is something of an outlier on this point).
Mr Baran points to the attribution of 35% contributory negligence in New South Wales v Doherty, submitting that this case is "far worse" because the Plaintiff "elected to hide his symptoms at all times" (submissions paragraph 299). He describes the Plaintiff as demonstrating this pattern of behaviour from a very early stage, where the Plaintiff was offered EAP "on numerous occasions and he simply refused" (submissions, paragraph 300). Mr Baran goes on to state that the Plaintiff "did not disclose anything to Mr Yapp and there is no evidence that he disclosed anything to Ms Clark despite the number of appointments he had with her" (submissions, paragraph 300). Mr Baran adds that Ms Clark's recollection of his presentation was that he fell within the category of persons who "kept saying "I'm fine"" (submissions, paragraph 301) and that her evidence is "clear that she would have given advice and if he was quite unwell would have escalated the matter".
These submissions do not reflect the evidence. Whatever the Plaintiff's past responses to offers of counselling (Mr Baran does not provide transcript references for these asserted admissions, and I could not find them), WellCheck was the Plaintiff's idea and, far from being reluctant, Ms Clark's email to Inspector Yapp makes it clear that the Plaintiff was fulfilling his role as organiser to her satisfaction. The problem was that neither Ms Clark nor Inspector Yapp, despite their academic qualifications, saw the need for more or different assistance following "red flag" indications (Sills v State of New South Wales at [148]), with the result that both the Plaintiff and Philip Marino developed stress illnesses.
In asserting that the Plaintiff's failure to disclose earlier that he had work difficulties and behavioural issues, the Defendant does not take into account that, in Sills at [172], Sackville AJA stressed that an element of PTSD can be a manifestation of avoidant behaviour, and such behaviour is not, in such circumstances, evidence of contributory negligence. I also note the observations of Sackville AJA as to the important role that trust plays in the revelation of such information (at [171]). It is evident from the Plaintiff's evidence that he had lost trust in the counselling process, particularly after nothing was done in response to his complaints about the conduct of team members who him thought were treating the counselling process as a joke. His loss of trust is understandable in that the conduct of these officers, if it had been recognised as problematic at the time, could have, and should have, been treated as avoidant or stress-related conduct.
Mr Baran further submits that the Plaintiff did not disclose his true situation to his general practitioner "who the court should infer would have immediately referred him on for psychiatric help" (submissions, paragraph 302). This is contrary to the evidence. The Plaintiff did consult his general practitioner and described a series of stress-related health problems including problems sleeping and distress from cases at work. On the first of these occasions (12 March 2015), he told the general practitioner that he was seeing a "counsellor" at work. The Plaintiff's general practitioner was entitled to assume that this "counsellor" was a skilled expert who was having appropriate discussions with the Plaintiff, and that the Plaintiff's work stress could be left to this counsellor to deal with, leaving the role of the general practitioner as being that of the prescriber of medication, which is what occurred.
In Benic v New South Wales, Garling J took into account the long history of the Plaintiff failing to give accurate answers to his employers when they asked about his welfare (at [627]). That is not the case here. The Plaintiff was frank with his general practitioner and I accept his evidence that if he had been asked about such matters by Ms Clark he would have responded frankly. This was a team of six police officers who needed regular counselling of a kind comparable to WellCheck, and the Plaintiff appears to have done what was necessary to arrange appointments for all of them. The problem was that, unbeknownst to the Plaintiff and Inspector Clark, they were not in the WellCheck program. The inference I draw from Ms Clark's evidence is that, possibly as a result of this exclusion, she did not take the problems of any of the team members (and not just the Plaintiff) very seriously.
The Defendant's pleading of contributory negligence is not maintainable for the above reasons. The Defendant has failed to discharge its onus in relation to each of the particulars of negligence and as to any additional ground that was put forward without particularisation, such as the asserted failure to consult Nemesis.

Conclusions concerning liability

On the proceedings as pleaded and particularised, and on the evidence as led in these proceedings, the Defendant has failed in relation to liability, causation and contributory negligence.
The Defendant relies upon an additional, but unpleaded, defence. Mr Baran submitted (Tcpt, 8 June 2023, pp 352 - 358) that if the psychological treatment afforded to the Plaintiff by Ms Clark was accepted as being inadequate, the Defendant was not vicariously liable (submissions, paragraphs 304 - 306). Mr Baran submits that if the failure by Ms Clark to discharge her duties led to the deterioration of the Plaintiff's condition without any psychoeducation or proper screening/risk assessments then it is DTC who is vicariously liable for that conduct, not the State of New South Wales, citing Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19 at [33]. He adds, although without discussion, the observations of Lady Hale in Various Claimants v Barclays Bank Plc.
This argument is based on the assertion that "DTC had a contract with police [sic] which was carrying on business in its own right which is fatal to an argument that the conduct of Ms [Clark] could warrant a finding of vicarious liability on behalf of the State of New South Wales" (submissions, paragraph 306; see also Tcpt, 8 June 2023, pp 354 - 355). Mr Baran added that he was obligated to mention, in addition, the decision of Various Claimants v Barclays Bank Plc as the High Court was considering "how [this decision] operates in this country" (at Tcpt, 8 June 2023, p 357). Mr Morris SC, in reply, submitted that it was hard to see how such a decision could detract from non-delegable duty, which meant that there was no power to delegate the duty to anyone else in the first place (Tcpt, 8 June 2023, pp 385 - 386).
The decision of Various Claimants v Barclays Bank Plc is untested in Australia, in that it has been referred to in only four decisions, either briefly in passing (DP (a pseudonym) v Bird [2021] VSC 850 at [179]) or in circumstances where the parties could have, but did not, raise English law as the proper law for the cause of action (Rader v Haines [2021] NSWDC 610 at [5], [103] - [113]). This is an additional reason for treating this unpleaded defence with caution, whether it is being examined by the High Court or not.
The first issue is Ms Clark's asserted negligence in performance of her counselling duties where Inspector Yapp, on behalf of the Plaintiff and his team, sought counselling from the WellCheck service and for such counselling to take place for the duration of the Royal Commission. As Mr Baran concedes at Tcpt, 8 June 2023, pp 354 - 355, the services provided by Ms Clark fell well short of the form and content of the counselling sought by Inspector Yapp and offered by Ms Freeland. However, the reasons for Ms Clark's services falling short of what was requested should not be assumed to arise only from her incompetence. Ms Freeland's evidence is that a psychologist at management and/or expert level of the Defendant's EAP services indicated to her that the request to be included in WellCheck was not to be granted, despite the unambiguously clear approval of it by all of the Plaintiff's superiors, although she appears not to have shared this decision with the Plaintiff and/or Inspector Yapp.
Thus, on the evidence before the Court, the nature and extent of Ms Clark's counselling services is bound up in a series of decisions made by the Defendant on what kind of assistance would be offered. The Defendant, through its servants or agents, made those decisions in circumstances of the duty owed to the Plaintiff; Ms Clark did not make these decisions. The precise degree of interaction would only be clear if there were a pleading of the relevant defence from which particulars could be sought and subpoenae issued. However, on the evidence before me in its limited state, I am satisfied that the failure to include the Plaintiff and his team in WellCheck or to set up the analogous system proposed by Ms Freeland was an integral part of the Defendant's negligence, in which case the issue of vicarious liability concerning Ms Clark would not arise.
There are additional reasons for the rejection of this asserted defence. First, it is not pleaded. Mr Morris SC stated at Tcpt, 8 June 2023, p 383(19)-(39): "…Now, my friend made, I've got to say, some very interesting submissions about the no vicarious liability for an independent contractor. It is an interesting legal point, in my respectful submission, but it's not one that arises in this case because it did not form part of the pre-filing defence, and it did not form part of the defence. HER HONOUR: I didn't see it in the defence; I wondered about that. MORRIS: And I think we're into that territory, and just give me a moment, your Honour, I think it's part 14, rule 14 of the Uniform Civil Procedure Rules."
Having regard to these provisions, I agree that Pt 14 r 14 of the Uniform Civil Procedure Rules 2005 (NSW) is a sound reason for not permitting such a defence even to be put. It is not clear to me whether the s 318 submission had somehow escaped from the parties' agreement not to raise s 318 issues, so I will err on the side of caution and restrict my observations to Pt 14 r 14.
Second, as Mr Morris SC sets out in the Plaintiff's Submissions at paragraph 215, the Defendant refused to provide particulars of the EAP providers in response to the Plaintiff's request, asserting that this was not a proper matter for particulars. The Defendant then used the information about the EAP providers to issue its own subpoena days before the trial and to call Ms Clark at short notice. The Plaintiff was unlikely to have obtained this information under subpoena as the EAP provider had changed its name. The result was that not only was the Plaintiff expected to respond to an unpleaded defence, but he had to do so in circumstances where information had been deliberately withheld from his legal representatives. (I also note that this was not an issue raised in the Pre-Filing material, although Mr Morris SC did not formally challenge this or other failures to serve material later sought to be relied upon at the hearing).
The failure of the Defendant to plead its vicarious liability defence and to provide particulars of information which, if the defence had been pleaded, would have been vital, would both be additional reasons for rejection of the claims for vicarious liability.
However, the principal reason for its rejection is that vicarious liability issues simply fail to arise, both for the reasons enunciated by Mr Morris SC and on the facts of the case as found, including those set out above.

Damages

In Benic v New South Wales, Garling J set out the relevant provisions of s 31 of the Civil Liability Act concerning "recognised psychiatric illness". This has been conceded in the present case.
As to past and future economic loss, the parties have agreed on the method of calculations for past and future earnings. The parties have provided Schedules which are set out at the end of this section of the judgment. I have included these as they contain adjustments such as Fox v Wood payments which, although not the subject of submissions, are relevant when determining quantum.
Mr Baran (submissions, paragraphs 307 - 309) points to only two areas of dispute, namely: 1. The Defendant submits that allowance should be made for residual earning capacity, relying upon the Plaintiff's evidence of his condition of health as having improved. 2. The Defendant submits that no buffer should be awarded and that if one is awarded, it should be for $25,000 and not $150,000.
In Benic, Garling J stated at [663]: "663 In assessing non-economic loss, it is necessary that I have regard to all of the matters to which I have earlier referred about the plaintiff's depression and anxiety, his fear, the need for him to be medicated and to attend at a psychiatrist regularly for consultation and therapeutic assistance. I also need to bear in mind that his fears (whether they be presently regarded as rational or not) lead him to behave in ways which would be regarded as unusual."

Past economic loss

The parties have agreed that past economic loss may be calculated as amounting to $388,259.00.

Future economic loss

Section 13 of the Civil Liability Act provides: 13 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.
The Plaintiff has been certified by his treating medical practitioners as being totally unfit for work for the period 21 August 2019 to date and has been paid statutory workers compensation benefits from 21 August 2019 to date as a consequence of being totally incapacitated for work pursuant to s 37 of the WCA (Tab 27, pp.177-237 of Exhibit 1; these payments were current up to the date of the hearing). The Plaintiff ceased work as a consequence of the psychological injury on 21 August 2019.
In awarding future economic loss, the Court disregards any earning capacity of the Plaintiff after the pension age (in this case, 67): s 151IA of the WCA. Future economic loss adopts a discount rate of 5% as there is no prescribed rate in the regulations: s 151J.
The Plaintiff has served reports from his treating doctors which include observations as to his future prospects of rehabilitation to be able to work. Dr Metelerkamp, in particular, viewed this as unlikely. Dr Metelerkamp summarises the prognosis of PTSD in police officers and the hurdles associated with recovery (pp. 66-67 of Exhibit A, Plaintiff's Medical Book): "The prognosis for PTSD is contingent on a number of factors including severity, duration and frequency of exposure to trauma. Police officers typically experience severe, frequent and extended periods of trauma exposure making recovery typically protracted. Although 50% of PTSD cases experience complete recovery within 3 months (APS, 2000) this is unlikely in Police given the severity, duration and frequency of exposure to trauma. Mr Paul has already passed the 3-month mark. More likely now is a waxing and waning of symptoms both during and after trauma-based treatment. Even with treatment, reminders of original traumatic events, life stressors or new traumatic events can trigger PTSD symptoms (APA, 2000). For Police Officers in particular, PTSD symptoms and well-being, are not solely related to exposure but also to available social support and coping methods (Menard & Michael, 2013). In particular, Police work is associated with maladaptive coping (Pasillas, Follette & Perumean-Chaney, 2006) and dissociation (Aaron, 2000). Mr Paul has experienced maladaptive coping, in the form of avoidance behaviours, dissociation, suppression and disengagement and his social support network is exceedingly limited. As a result of both maladaptive coping and poor social support, I'd suggest Mr Paul's prognosis is guarded, at best."
I note that the Plaintiff has had trouble in discussing matters with his psychologist but sees his psychiatrist, Dr Murray, on a weekly basis and intends to continue to do so (Tcpt, 30 May 2023, p 62). He is on a considerable amount of medication, taking 18 pills a day (Tcpt, 30 May 2023, p 62).
Unfortunately, despite all this medication and regular visits to the psychiatrist, the Plaintiff still loses control from time to time even when the stress is minor, such as an encounter with another parent at a school football match. These are very much the kinds of situation described by Dr Metelerkamp as likely to cause the Plaintiff to erupt. Similar views are expressed by Dr Bertucen (p.78 of Exhibit A, Plaintiff's Medical Book), Dr Anand (pp.87, 89, 131, 132, 133 of Exhibit A, Plaintiff's Medical Book) and Associate Professor Robertson (p.105, 106 of Exhibit A, Plaintiff's Medical Book).
The Plaintiff's medical evidence was trenchantly criticised by Professor Tennant, but little of his report deals with the topic of the Plaintiff's likely future recovery, in part because Professor Tennant shifts between saying there is nothing wrong with the Plaintiff and that if there is it is his own fault, recent and trivial. Professor Tennant's report is of no assistance for these reasons.
I have read the vocational assessor's report concerning potential future work opportunities. I consider Mr Erber's report to be of no assistance because it is predicated upon the Plaintiff being able to achieve a stable level of mental wellbeing which the Plaintiff's medical evidence does not support.
The unsatisfactory state of the Defendant's medical evidence means that there is no case to the contrary. Mr Baran submitted that, as the Plaintiff had not been hospitalised, committed or put in gaol for any extreme behaviour, his problems should not be regarded as being such that he can never work again. The Plaintiff has, however, been arrested for aggressive conduct and is leading the life of a hermit to avoid stress. All of the evidence suggests his ongoing disabilities would severely restrict any attempt at employment, even part-time.
As the schedule of damages set out below confirms, the sum for future economic loss for the Plaintiff is calculated upon the Plaintiff taking retirement at the age of 60, not 67. The Plaintiff, who indicated that he would have, but for his medical condition, remained in the police until retirement as well as actively seeking promotion, said he had no intention of seeking early retirement (Tcpt, 30 May 2023, p 104), and I accept this evidence, as I am entitled to do, as the age of retirement is not a certain factor such as a heart attack (Bridge Printery Pty Ltd v Mestre [1999] NSWCA 342).
The Plaintiff was cross-examined about having a Self-Managed Superannuation Fund (SMSF), as if this were a sign that he would be likely to take early retirement. Mr Morris SC submits that it is compulsory to hold superannuation, and that having such a fund is not indicative of when the Plaintiff was likely to retire.
I accept this submission. Any sum for future economic loss should be calculated up to the retirement age of 67. The same is the case for superannuation, the mathematical quantification of which was not challenged by either party.
As to residual earning capacity, for the reasons set out above, I am satisfied by the medical evidence, particularly from Dr Anand, that the Plaintiff is unemployable on the open labour market because of his ongoing difficulties and that this is likely to continue for an extended period of time, if not for the rest of his working career. The Plaintiff's residual earning capacity, even if limited to some form of part-time work with flexible hours and an indulgent employer, is effectively zero; the likelihood of a person with the work skills of the Plaintiff being able to obtain employment of this benevolent kind is remote.
Accordingly, I accept the quantification set out by the Plaintiff in the schedule set out below.

Cap for damages for loss of promotion opportunities

The parties agree that a cap for damages for loss of promotion may be an appropriate manner of assessment, but disagree as to whether one should be awarded at all and, if one is awarded, as to its quantum.
While I have been careful not to read material about (or included in) the Royal Commission's report, as the parties did not address me on this, the Plaintiff's own report on his last day of service set out in some detail both the enormity of the investigation and its unqualified success in terms of both meeting the needs of the victims and in preparation of the material that would result in testimony from these witnesses to the Royal Commission itself and for the purposes of the two lengthy trials of the two accused who were prosecuted (the remaining nine offenders were all deceased).
In addition, Mr Baran tendered the judgment of the Court of Criminal Appeal in Valentine v R [2023] NSWCCA 43, handed down on 10 March 2023. In the course of his detailed and insightful judgment, Basten AJA's analysis of the 35-day (at [13]) judge-alone trial highlights the complexities and difficulties of trials of this nature. It is clear, from his Honour's judgment, that the preparation for both the trial and the appeal has been exemplary. Although his Honour rarely refers to the investigation process (such as referring, at [133], to one police statement having taken three days to prepare), it is clear, from the absence of misunderstandings or factual errors of the kind that might be expected to be found in historic claims such as these, that the investigation work standard must have been of a very high order.
Mr Baran does not appear to challenge the excellence of the work, and submits only that "the evidence simply does not allow a court to make a proper mathematical calculation", adding that the evidence is "sparse" and "speculative" (submissions, paragraph 311), in that there is only "some evidence" from the Plaintiff and Mr Yapp as opposed to "quite clear evidence" of a higher salary being likely (submissions, paragraph 312).
Mr Morris SC submits that the Plaintiff's long and successful career in the police included filling in an "acting up" position on a number of occasions, both before and after the Royal Commission. He was the Senior Sergeant at Tuggerah for periods of time during 2016, 2017 and 2019. He was the recipient of medals and the reports of his supervisors, set out in Exhibit 1, speak in uniformly high terms of his work and work attitude. Inspector Yapp said that the Plaintiff had a potentially bright future in the New South Wales Police Force (Tcpt, 1 June 2023, p 209(17)). To this I would add that the success of his work on Bilvo would have been the crowning achievement.
The Plaintiff was only 47 years old at the time that he went off sick in August 2017 and had another 20 years of working life in the New South Wales Police Force at that time. He said in his evidence that he was going to seek promotion (Tcpt, 30 May 2023, p 59(40)), and Inspector Yapp thought that there was "every opportunity" that this would occur (Tcpt, 1 June 2023, p 210).
The relevant principles may be drawn from State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 at [87]: "In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages. Statements to the contrary such as those made in Allen v Loadsman [1975] 2 NSWLR 787 at 792 are not correct: Baird v Roberts [1977] 2 NSWLR 389 at 397-8 per Mahoney JA; J K Keally v Jones [1979] 1 NSWLR 723 at 732-735 per Moffitt P; Yammine v Kalwy [1979] 2 NSWLR 151 at 154-5 and 156-7 per Reynolds JA and Mahoney JA; Thiess Properties Pty Ltd v Page (1980) 31 ALR 430; see also Radakovic v R G Cram & Sons Pty Ltd [1975] 2 NSWLR 751 at 761 where Samuels JA criticised the "meagre facts" provided but did not say it was not open to the jury to find a substantial sum for diminished earning capacity by the "application of their own knowledge and experience". The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility. The trial judge in substance explained these aspects of the jury's task satisfactorily."
As to quantum of buffers, a buffer of $150,000 was awarded in Thorn v Monteleone; Thorn v Kelly [2021] NSWCA 319 for loss of the chance to become a farm manager or own a farm. However, the size of the buffer would depend upon the facts of each case.
In the present case, it is not in dispute that the role in which the Plaintiff had been acting, without overtime, was $7,000 gross more than his actual final salary. Had he been appointed as an Inspector, this would have gone from $7,000 (the lowest level) to $47,000 gross (if there were progression through increments). In addition, comparable wages for other officers (set out in pp. 85 - 104 of the Plaintiff's financial records) demonstrate significant earnings for "Overtime/Shifts/Penalties", independently of career progression.
While none of the above is actually determinative, doing the best that I can, conformably with the principles set out in State of New South Wales v Moss, I consider that the Plaintiff's likelihood of promotion is well-described by Inspector Yapp and that he would have gone on to a distinguished career, retiring at the end of that time on a significantly higher salary, and that the Plaintiff's estimate of $150,000 should be accepted.

The parties' schedules

In arriving at the figures set out above, I have been guided by the schedules provided by the parties, which are set out below. The Plaintiff provided the following schedule: Past economic loss 45 weeks=$82,464 52 weeks=$99,171 $388,259.00 52 weeks=$100,890 52 weeks=$105,734 Past superannuation loss $388,259.00x 11% $42,708.00 Future economic loss $2,033 x 613.9 x 85% $1,060,849 Future superannuation loss - $1,060,849 x 14.45% $153,292 Fox v Wood $33,754.00 Loss of promotion, overtime, and shift allowance (buffer) $150,000 19 years from 2019 TOTAL $1,828,862

The Defendant provided the following schedule: Past economic loss $1,832.54 net per week 21/8/2019 to 30/6/2020 $1,907.15 net per week 1/7/2020 to 30/6/2021 $388,259.00 $1,940.21 net per week 1/7/2021 to 30/6/2022 $1,982.02 net per week 1/7/2022 to 30/6/2023 Past superannuation loss $388,259.00 x 11% $42,708.00 Future economic loss $2,033.36.00 net per week probable earnings less capacity to earn of $350.00 net per week to age 60 - $1,683.36x 444.1x 85% $635,443.00 Future superannuation loss - $635,443.00 x 14.33% $91,000.00 Fox v Wood $33,754.00 TOTAL $1,191,164.00

The purpose of setting out these schedules is to explain the breakdown of past and future superannuation calculations as well as the Fox v Wood component. I was not otherwise addressed as to either of these aspects of damages, which are mathematically agreed to be correct.

Concluding remarks and costs

The Plaintiff reserves his rights to make further submissions as to interest (s 151M of the WCA) and to seek orders in relation to costs.
Costs should follow the event but I have granted liberty to apply.

Orders

I make the following orders: 1. Judgment for the Plaintiff for $1,828,862, with liberty to apply in relation to any application for interest. 2. Defendant to pay Plaintiff's costs, with liberty to apply. 3. Exhibits retained until further order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 July 2023

Occupational Health and Safety Regulations 2001(NSW)

Work Health and Safety Regulations 2011(NSW)

(Uniform Civil Procedure Rules 2005(NSW)

of Australia Act 2021 (Cth), s 190 Occupational Health and Safety Regulations 2001 (NSW) Uniform Civil Procedure Rules 2005 (NSW), Pt 14 r 14 Work Health and Safety Regulations 2011 (NSW) Workers Compensation Act 1987 (NSW), ss 37, 151D, 151E, 151F, 151G, 151H, 151IA, 151J, 151M Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 318 Cases Cited: Ali v Caton & Anor [2013] EWHC 1730 (QB) Australian Winch and Haulage Company Pty Ltd v Collins [2013] NSWCA 327 Benic v New South Wales [2010] NSWSC 1039 Bersee v State of Victoria [2022] VSCA 231 Bridge Printery Pty Ltd v Mestre [1999] NSWCA 342 Browne v Dunn (1894) 6 R 67 Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726 Digi-Tech (Australia) v Brand [2004] NSWCA 58 Doherty v State of New South Wales [2010] NSWSC 450 DP (a pseudonym) v Bird [2021] VSC 850 Galea v Bagtrans Pty Ltd [2010] NSWCA 350 George Mkari by his Next Friend Youssef Mkari v Daniel Meza [2005] NSWCA 136 Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FedCFamC2G 323 Horne v J K Williams Contracting Pty Ltd [2023] NSWCA 58 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 Kozarov v Victoria (2022) 273 CLR 115; [2022] HCA 12 Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 McKay v Palmers Removalist Storage Pty Ltd [2010] NSWCA 83 Michael v State of New South Wales [2011] NSWSC 231 New South Wales v Fahy (2007) 232 CLR 486 Paper Coaters Pty Ltd v Jessop [2009] NSWCA 1 Rader v Haines [2021] NSWDC 610 S v State of New South Wales [2009] NSWCA 164 Siegel v Pummell [2014] EWHC 4309 (QB) Sills v State of New South Wales [2018] NSWDC 119 Sills v State of New South Wales [2019] NSWCA 4 State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 State of New South Wales v Seedsman [2000] 217 ALR 583 State of NSW v Coffey [2002] NSWCA 361 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19 Thorn v Monteleone; Thorn v Kelly [2021] NSWCA 319 Unver v Liftronic Pty Limited [1999] NSWCA 275 Valentine v R [2023] NSWCCA 43 Various Claimants v Barclays Bank plc [2020] AC 973; [2020] UKSC 13 Texts Cited: Nil Category: Principal judgment Parties: Timothy Paul (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: Mr J Morris SC with Mr E O'Neill (Plaintiff) Mr D Baran (Defendant)

Judgment Judgment The pleadings Background The Royal Commission The procedural history of the claim The claim for negligence The nature and scope of the duty of care The Plaintiff's police career up to Strike Force Bilvo Strike Force Bilvo is set up Mrs Paul's evidence about WellCheck WellCheck The counselling provided was not WellCheck Inspector Yapp's role in asking for "WellCheck" support The Plaintiff's experience with Ms Clark The evidence of Detective Senior Constable Henkel The evidence of Ms Clark The Plaintiff seeks assistance from his general practitioner The Plaintiff seeks to change his work duties The Plaintiff's role Strike Force Bilvo changes The Plaintiff asks for an officer to assist him The evidence of Pamela Freeland The statement evidence The Plaintiff ceases work Evidentiary Issues Jones v Dunkel and the failure to call witnesses Mr Feszczuk Ms Richards Ms Boon Mr Conroy Mr Fenwick and the Chief Psychologist Section 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the WIM Act") The medical evidence The Plaintiff's medical evidence The Defendant's medical evidence Conclusions concerning the evidence Negligence Negligence - findings concerning breach of duty of care Causation Contributory negligence Conclusions concerning liability Damages Past economic loss Future economic loss Cap for damages for loss of promotion opportunities The parties' schedules Concluding remarks and costs Orders

The Plaintiff, a former police officer, brings proceedings against the Defendant conformably with s 5 of the Crown Proceedings Act 1988 (NSW) in respect of acts, omissions and conduct of the Defendant which, by reason of the Defendant's asserted negligence, led to his premature retirement as a result of Chronic Post Traumatic Stress Disorder, a Major Depressive Disorder and Substance Abuse Order. He asserts that the cause of these illnesses has been medically attributed in part due to the cumulative effects of exposure to numerous traumatic incidents encountered over the course of his career but, essentially, by the work he carried out as the officer in charge of one of the 57 case studies undertaken by the Royal Commission into Institutional Responses to Child Sex Abuse which was set up on 15 November 2012.
By reason of the legislative scheme for claims against employers, the Plaintiff's claim is restricted to general damages and past and future economic loss by the Workers Compensation Act 1987 (NSW), Part 5, Division 3; ss 151E(1) and 151F. The parties agree that, although the relationship between the Plaintiff and Defendant is not one of employment in the strict sense, the relationship between them is analogous to employer/employee, as qualified by the operation of the legislation under which police officers carry out their duties (State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 at [56]-[61]), although the scope and content of that duty remains in issue.
Police officers are in a different position to other plaintiffs in that the very nature of their duties is capable of exposing them to the risk of psychological injury (Sills v State of New South Wales [2019] NSWCA 4 at [114] - [117]), in part because they are duty bound to obey and carry out lawful orders in accordance with their statutory obligations (State of New South Wales v Briggs at [126] and [142]).
The Plaintiff has been diagnosed as suffering from Chronic Post Traumatic Stress Disorder, a Major Depressive Disorder and Substance Abuse Disorder involving alcohol, the cause of which has been medically attributed to the cumulative effects of exposure to numerous traumatic incidents encountered over the course of his career.
There is no dispute as to the following: 1. The Plaintiff attained the requisite 15% whole person impairment (WPI) threshold as required pursuant to s 151H of the Workers Compensation Act 1987 (NSW) ("WCA"), with his claim for lump sum compensation benefits having resolved on the basis he suffers from a 19 per cent WPI. The Defendant's workers compensation claims manager, EML, has accepted liability in respect of the Plaintiff's statutory entitlements, and he continues to receive ongoing weekly benefits on the basis he is totally incapacitated for employment, together with the payment of s 60 medical expenses. 2. Leave to commence proceedings out of time was granted pursuant to s 151D(2) of the WCA on 22 November 2022.

The pleadings

The statement of claim filed on 2 March 2022 sets out that the Defendant owed the Plaintiff a non-delegable duty to take reasonable care to avoid exposing him to the foreseeable risk of injury, including the risk of psychiatric or psychological injury. Particulars of that duty are set out at paragraphs 7 - 11. Specific instances of the Plaintiff's police duties are set out at paragraphs 13 - 119 (the particulars in relation to The Royal Commission into Institutional Responses to Child Sex Abuse being at paragraphs 90 - 94). The particulars of breach of duty are set out at paragraph 120 as follows: 1. Failing to provide, institute and maintain a safe system of work in circumstances where the Defendant knew or ought to have known of the risk of injury to the Plaintiff; 2. Failing to devise, institute and or maintain a safe system of work in the circumstances where the Defendant knew or ought to have known of the risk of injury to the Plaintiff; 3. Failing to devise and have in place a system to adequately and properly warn the Plaintiff of the risks of psychological and or psychiatric injury from exposure to traumatic incidents, and from the conditions of his workplace; 4. Failing to devise and have in place a system to adequately and or properly educate, train and advise the Plaintiff in relation to the safe performance of his 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; 5. Failing to devise and have in place a system to screen or assess the Plaintiff's suitability in terms of the likely effect upon his psychiatric or psychological condition of his attending traumatic work incidents, being engaged in stressful work conditions, dealing with threats, deceased persons, and those involving the abuse of, and violence towards, children, as well as assaults and other traumatic events; 6. Failing to devise and have in place a system to adequately and properly monitor the effect of traumatic work incidents and conditions of working and the psychological effect of same upon the health of the Plaintiff such as that instituted by the Tuggerah Lakes Area Command in 2007 which required duty officers to input traumatic events and follow up with officers for which they were responsible; 7. Failing to devise and have in place a system to adequately and properly train and supervise the Plaintiff's superior officers so as to allow them to monitor the effect of traumatic work incidents upon the Plaintiff; 8. Failing to devise and have in place a system of counselling, debriefing or other intervention to adequately and properly ensure that the Plaintiff had available to him appropriate means of detecting and alleviating the psychological and or psychiatric effects of traumatic work incidents; 9. Failing to educate the Plaintiff to recognise signs of psychological injury and, upon recognition, train him to take appropriate action so as to ameliorate or mitigate the symptoms and development of psychological injury; 10. 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, is a sign of weakness and likely to affect a police officer's career; 11. Failing to act upon recognisable signs of stress and distress displayed by the Plaintiff, particularly after signs of psychological decompensation while on duty in 2004, upon his return to work in December 2004, in 2010 after he was criminally charged, whilst working in Strike Force Bilvo and following his argument with Superintendent Patton; 12. Failing to undertake any effective welfare checks of the Plaintiff after the Plaintiff's psychological decompensation 2004, following his return to work in December 2004, 2010 following his being charged and following his argument with Inspector Patton where the Plaintiff's superiors were aware or ought to have been aware of the gravity of the Plaintiff's decompensation; 13. Failing to follow up the lack of communication with the Police Psychologist in 2003; 14. 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 Claimant's condition and such an examination would preclude the Plaintiff from performing full duties; 15. Failing to protect the Plaintiff from further stressors 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; 16. Failing to undertake well checks [sic] of the Plaintiff whilst he was performing duties in Strike Force Bilvo; 17. Failing to properly adhere to, comply and implement the Defendant's policies, procedures and publications in relation to return-to-work, restricted duties and rehabilitation; 18. Failing to identify the Plaintiff as being "at risk" in circumstances where the Defendant ought to have done so; 19. Failing to limit the Plaintiff's exposure to traumatic incidents, in circumstances where it was unnecessary and unreasonable to exposure the Plaintiff to said incidents; 20. Failing to properly counsel and or debrief the Plaintiff after critical incidents including that at Dingo Tops in 2010; 21. Failing to establish and enforce an effective system for early detection and treatment for psychological injury caused by the Plaintiff's cumulative exposure to traumatic events and stressful work conditions; 22. Failing to provide a system of work whereby the Plaintiff was adequately monitored and reviewed and, if necessary, referred for treatment, provided with leave and or transfer to alternative duties so that his psychological illness did not become chronic; 23. Failing to take any, or any appropriate, steps to rehabilitate the Plaintiff back to suitable duties; 24. Failing to provide the Plaintiff with any, or any effective, post event counselling after distressing and stressful incidents; 25. Failing to comply with NSW Police Force Standard operating procedures relating to critical and traumatic incidents; 26. Failing to comply with guidelines for critical incident management of Acting NSW Chief Psychologist J. Lette dated 3 March 2003; 27. Failing to comply with the recommendations of the NSW Ombudsman dated July 1999 relating to the management of critical incident stress management; 28. Failing to ensure that the Plaintiff's supervisors complied with their job stream responsibilities; 29. Failing to put in place a system that psychologically examines the Plaintiff, by a psychiatrist, every three years such as the system undertaken by the Royal Canadian Mounted Police; 30. Failing to publish and provide to the Plaintiff a guide such as those published by the Australian Defence Force directed to educating a person such as the Plaintiff so that they might identify the symptoms of psychological injury, their cause and the avenues available for treatment and help; 31. Failing to provide at all or insufficiently a resilience training program; 32. Failing to require the Plaintiff to undergo a resilience training program; 33. Failing to implement a Mental Health First Aid course such as that implemented by the West Australian Police Force for the identification, triaging and frontline treatment of psychological injury; 34. Failing to provide a system for monitoring the Plaintiff's exposure to traumatic incidents and material traumatic in nature similar to that provided to those involved in the Royal Commission.
Both parties acknowledged that the evidence related largely to Strike Force Bilvo as opposed to the other incidents set out in the particulars, but I was not addressed by the parties as to which of the particulars the Plaintiff still relied upon. The evidence was principally directed to the failure to provide a proper "WellCheck" system of counselling for the Plaintiff and his team after Strike Force Bilvo was set up, which would suggest particulars 1 - 8, 16 and 34 are the most relevant. While the circumstances causing the Plaintiff to be in a heightened state of stress at the time he was put in charge of Strike Force Bilvo are relevant, neither party made reference to the matters in particulars 11 - 13, 20 and 26 - 33 and I have disregarded these.
There are also pleas of breach of statutory duty in relation to the Occupational Health and Safety Regulations 2001 (NSW) (now repealed) and of the Work Health and Safety Regulations 2011 (NSW) and these were referred to only very briefly. By reason of my other findings, I have not made orders on this basis although I have taken into account, in terms of negligence, the relevant regulations.
The Statement of Particulars filed on 28 April 2022 provides particulars of ongoing disabilities resulting from the three psychiatric illnesses diagnosed and particularises the loss of income, both past and future. The parties have supplemented and updated this information in their Schedules of Damages as set out in the schedules at the end of the section of this judgment concerning quantum.
The defence, filed on 14 April 2022, denies paragraphs 13, 19, 20, 35, 41, 53(c), 57-66, 100, 101, 117, 118, 121-124 of the statement of claim. It pleads that any loss or damage was the result of the Plaintiff's contributory negligence. The Defendant also pleads (paragraph 128(c) of the defence) that the Plaintiff's damages should be reduced to take into account non-tortious events upon the Plaintiff's psychological condition (principally the circumstances of his marital breakdown and disciplinary procedures in 2004) although this was but faintly pressed in the hearing. A plea of mitigation was abandoned in closing submissions.
Although there was no pleading to this effect, Mr Baran submitted (Tcpt, 8 June 2023, pp 352 - 358) that, if the psychological treatment afforded to the Plaintiff was inadequate, the Defendant was not vicariously liable (citing Various Claimants v Barclays Bank plc [2020] AC 973; [2020] UKSC 13).
Matters set out in the Reply filed on 12 July 2022 were not pursued at the hearing.

At a glance

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Judgment (48 paragraphs)

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Legislation Cited (13)

Cases Cited (42)