Peter Steven Benic v State of New South Wales [2010] NSWSC 1039 | Case summary | Zoe

NSWNSWSC

Peter Steven Benic v State of New South Wales

[2010] NSWSC 1039

Supreme Court of NSW|2010-07-14|Before: Garling J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2010-07-14

Before

Garling J

Source

Original judgment source is linked above.

Judgment (233 paragraphs)

[1]

CITATION : Peter Steven Benic v State of New South Wales [2010] NSWSC 1039

[2]

CATCHWORDS : NEGLIGENCE - Duty of care - Police service - Statutory framework of the NSW Police Force -Commissioner of Police owes non-delegable duty to members of NSW Police Force - Duty owed by Commissioner of Police is in the nature of an employer's duty in common law - Duty to provide safe system of work for members of the NSW Police Force - The Crown is liable for conduct of the Commissioner of Police and his delegates - The State of NSW as defendant in proceedings against the Crown. - NEGLIGENCE - Breach of duty - Where the plaintiff was a police officer assigned to providing protection to the Premier of NSW - Where the plaintiff received serious death threats in the course of his duties - Where the superior officers made inquiries of the plaintiff's wellbeing - Where the plaintiff informed his superior officers that he was fine - Where the superior officers did not refer the plaintiff to psychiatric or psychological assessment - Where the plaintiff later developed post traumatic stress disorder (PTSD) - The test under s 5B of the Civil Liability Act 2002 - Whether the superior officers knew or ought to have known of the risk of the plaintiff suffering psychiatric injury - Whether the risk was non insignificant - Whether in the circumstances the superior officers acted in a manner less than was reasonable in failing to refer the plaintiff to psychiatric or psychological assessment. - NEGLIGENCE - Causation - The test under s 5D of the Civil Liability Act 2002 - Whether the plaintiff would have developed PTSD but for the failure of his superior officers to refer him for psychiatric or psychological assessment - Whether the evidence establishes that early intervention in the treatment for PTSD in the plaintiff would, on the balance of probabilities, have prevented his present injury. - DAMAGES - Assessment of damages for personal injury - Where there is evidence that the plaintiff would have continued in the NSW Police Force at the rank of an inspector - Whether the plaintiff is fit for other forms of employment outside of personal protection - Assessment of non-economic loss - Assessment of future economic loss under s 13 of the Civil Liability Act 2002. - EVIDENCE - Applicable principles where there has been a lack of cross-examination on disputed facts - Importance of contemporaneous documents and records.

[4]

Abalos v Australian Postal Commission (1990) 171 CLR 167 Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 Ainsworth v Levi (Court of Appeal, 30 August 1995, unreported) Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 Bulstrode v Trimble [1970] VR 840 Chapman v Hearse (1961) 106 CLR 112 Chappel v Hart (1998) 195 CLR 232 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Czatyrko v Edith Cowan University (2005) 214 ALR 349 Doherty v State of NSW [2010] NSWSC 450 Drinkwater & Ors v Howarth [2006] NSWCA 222 Duysellshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Erwin v Iveco Trucks Australia (2010) 267 ALR 752 Fabre v Arenales (1992) 27 NSWLR 437 Fox v Percy (2003) 214 CLR 118 Griffiths v Haines [1984] 3 NSWLR 653 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 Hamod v State of NSW (No.12) [2009] NSWSC 242 Harriton v Stephens (2006) 226 CLR 52 HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 Kondis v State Transport Authority (1984) 154 CLR 672 Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 M & EM Holt Pty Ltd v Thompson [2001] NSWCA 359 CASES CITED : McDonald v State of NSW [2001] NSWCA 303 Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 NSW v Williamson [2005] NSWCA 352 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Law Rep 403 Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 Patrech v State of NSW [2009] NSWCA 118 Pearce v The State of NSW Police Service of NSW v Honeysett (2001) 53 NSWLR 592 Reeves v State of NSW [2010] NSWSC 611 Rhodes v Lake Macquarie City Council [2010] NSWCA 235 RTA v Dederer (2007) 234 CLR 330 RTA v Refrigerated Roadways Pty Limited [2009] NSWCA 263 S v State of NSW [2008] NSWSC 933 S v State of NSW [2009] NSWCA 164 Scott v Davis (2000) 204 CLR 333 Shaw v Thomas [2010] NSWCA Sociètè d'Avances Commerciales (Sociètè Anonyme Egyptienne) v Merchants' Marine Insurance Co (The 'Palitana') (1924) 20 Lloyds Law Rep 140 State of New South Wales v Fahy (2007) 81 ALJR 1021 State of NSW v Fahy (2007) 232 CLR 486 State of NSW v Seedsman [2000] NSWCA 119 State of NSW v Seedsman [2000] NSWCA 119; (2000) 217 ALR 583 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 Stojan v Kenway [2009] NSWCA 364 Swain v Waverley Municipal Council (2005) 220 CLR 517 Waverley Council v Ferreira [2005] NSWCA 418 Waverley Council v Lodge [2001] NSWCA 439 Woolworths Ltd v Strong [2010] NSWCA 282 Wyong Shire Council v Shirt (1980) 146 CLR 40

[12]

The Proceedings 5 The plaintiff, who was born on 24 November 1963, joined the NSW Police Force on 5 January 1987. On 13 September 1992, the plaintiff joined the Special Branch of the NSW Police Force as part of a protective security group which is now known as the NSW Police Counter Terrorism Coordination Command (CTCC). From that time onwards, the plaintiff worked in the area of close personal protection engaged in looking after various dignitaries and politicians. 6 In February 1995, he was selected to work as a member of the personal security team which was allocated to the then Leader of the Opposition Mr Robert Carr MP. Mr Carr was elected Premier on 4 April 1995 and the plaintiff continued in that role of providing close personal protection until Mr Carr's resignation on 3 August 2005. The plaintiff worked as one of the three close personal protection officers dedicated to taking care of the Premier of NSW. 7 For a period of three weeks after Mr Carr's resignation as Premier, the plaintiff worked for his replacement, Mr Morris Iemma MP. He was then seconded to work for the former Premier, Mr Carr, on 24 August 2005. He continued in that job until early March 2006, when he went off for a period of sick leave because of a right heel injury. 8 The plaintiff has not returned to work with the NSW Police Force since that time. On 2 February 2007, the plaintiff was discharged from the NSW Police Force on the basis that he was medically unfit to continue in the role of being a police officer. He had by that stage (21 December 2006) commenced these proceedings, initially in the District Court of NSW. 9 The plaintiff's claim against the State of NSW (the State) for negligence was based upon the proposition that it was liable for the negligence of the Commissioner of Police in his capacity as controlling and managing the NSW Police Force. 10 The State admits that the plaintiff was owed a duty of care. I will describe the nature and content of that duty in due course. The State disputes that there was any negligence and disputes that any negligence has caused any damage to the plaintiff. 11 Additionally, there is a significant dispute as to the plaintiff's capacity for work and what his career path would have been had his post traumatic stress disorder not intervened.

[13]

Witnesses Names 12 In this judgment it will be necessary to refer to a number of individuals who were police officers at the time of the various events with which this case is concerned. Some of them were promoted during the course of these events and accordingly had different ranks depending upon the particular date. Some, during the course of this period of time, acted in more senior positions and hence held different ranks depending upon what they were doing. By the time evidence was given before me, some of the police officers had retired from the NSW Police Force, and others had been promoted and bore a different rank. 13 In order to avoid confusion in the judgment, I will not refer to them by rank but simply by their surname. Where the position they held or else their rank was of importance in the specific context of my judgment, that will be addressed. It will be convenient if I set out below a table of those witnesses from the NSW Police Force who provided evidence: Name Full name rank/title at relevant time Role (December 2003 - April 2006) Benic Peter Steven Benic, Senior Constable, Acting Inspector Assigned to provide close personal protection for Mr Carr. Donohue David Donohue, Sergeant Acting Inspector at Maroubra Police Station in December 2003. Involved in arresting Hussein on 26 December 2003. Kirgiz Ishmail Kirgiz, Senior Constable, later Acting Inspector Benic's friend. Based at the Water Police until May 2004, and then transferred to CTCC and assigned to provide close personal protection for Mr Iemma. Macfarlane Glen MacFarlane, Senior Sergeant Staff officer to the Commander of the CTCC. Magdapoulos Dennis Magdapoulos, Chief Inspector Formerly part of the Special Branch (predecessor of the CTCC), but transferred to general duties before Benic entered the unit. Retired in 2006. Murchie Joel Murchie, Acting Inspector Duty Officer at Maroubra Police Station in December 2003. Reeves Christopher Ronald Reeves, Detective Sergeant Member of the CTCC. Acting Commander of the CTCC in December 2003. Scarcella Royce Angelo Scarcella, Constable Based at Maroubra Police Station. Took initial statement from Benic on 25 December 2003. Slattery Andrew Peter Slattery, Detective Inspector Head of the Dignitary Protection Unit, within the CTCC. Benic's immediate superior. Smith Carolyn Joy Smith, Detective Chief Superintendent Operations Commander of the Counter Terrorism Coordination Command (CTCC). Benic's ultimate superior. Walsh Peter Walsh, Senior Assistant Commissioner Retired on 5 September 2003. Has known Benic for 15 years.

[14]

Duty of Care: Statutory Framework of the NSW Police Force 14 In State of NSW v Fahy (2007) 232 CLR 486 at [18], Gummow and Hayne JJ emphasised the necessity for any inquiry, such as exists in this case, dealing with the liability of the State, to begin by consideration of the statute which governs the plaintiff's service as a police officer and the statute which regulates claims against the State. 15 Regrettably, the plaintiff in this case did not turn his attention to this analysis. However, it is necessary that this Court does so. I will commence by considering the statute which governs service as a police officer. 16 The NSW Police Force is established by s 4 of the Police Act 1990. This Act was formerly known as the Police Service Act 1990. 17 Section 6 of the Police Act provides that the mission of the NSW Police Force is "… to work with the community to reduce violence, crime and fear". One of the services which is provided by the police (s 6(3)(b) of the Police Act) is: "The protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way". 18 Section 8 of the Police Act is in these terms: " Commissioner to Manage and Control NSW Police Force (1) The Commissioner is, subject to the direction of the Minister, responsible for the management and control of the NSW Police Force. (2) The responsibility of the Commissioner includes the effective, efficient and economical management of the functions and activities of the NSW Police Force. (3) The Commissioner may classify the various duties that members of the NSW Police Force are required to perform and allocate the duties to be carried out by each such member. (4) The Commissioner may issue (and from time to time amend or revoke) instructions to members of the NSW Police Force with respect to the management and control of the NSW Police Force. …" 19 Section 64 of the Police Act, subject to one exception irrelevant to this case, gives to the Commissioner the power to appoint all police officers "… whether by way of transfer or promotion or otherwise …". 20 Under the Police Act, the Commissioner, in addition to his powers in s 8, has the following specific powers:

[27]

(e) The Commissioner is given by the Police Act sufficient statutory power to do all things which he regards as appropriate to fulfil the obligation referred to in (d) above. 24 Subject only to the direction of the Minister, in every practical respect the Commissioner is entirely able to, and does control all aspects of the constitution, make up and undertaking of the functions of the NSW Police Force. Whilst there is some restriction upon the Commissioner with respect to some aspects of the NSW Police Force Senior Executive Service, those restrictions do not in my view, affect this conclusion. As well, they are not directly relevant to this case. 25 Interestingly, but not directly determinative of the issue in these proceedings, s 134 of the Occupational Health & Safety Act 2000 provides that, for the purposes of that Act, a police officer is an employee of the Crown. That section is specifically limited to, and does not travel outside of, that Act and accordingly is not of any influence in the determination of the appropriate common law duty. The provisions of s 32 of the Occupational Health & Safety Act puts that issue beyond doubt. 26 As I have indicated earlier, the Commissioner is at the top of a hierarchical and disciplined police force. 27 Having regard to the nature and functions of the NSW Police Force, it is clear that many of his powers, particularly those related to the day to day functioning of routine matters are delegated by him to various officers in the hierarchy or chain of command. Each of those officers is a member of the NSW Police Force and each has obligations which may involve the management of officers inferior in rank to them who form part of their particular unit, branch, squad or division. In carrying out their role, each of those officers is obliged to comply with the orders and instructions of the Commissioner. In so acting, each of these officers is the delegate of the Commissioner. 28 The next step in understanding the nature and content of the duty relevant to this case, is to examine the pleadings. 29 It must be said that the pleading by the plaintiff of the nature and content of the duty of care is sparse. It is therefore appropriate to notice each of the paragraphs of the amended statement of claim filed on 5 July 2010 which relate, whether directly or indirectly, to the issue of the nature and content of the duty of care owed. They are as follows: "1. The Plaintiff brings his claim against the Defendant pursuant to the provisions of the Crown Proceedings Act 1988 (NSW) in respect of the acts, omissions and conduct of the Crown in whose service the Plaintiff was engaged.

[31]

Particulars of Negligence (a) Failure to provide the Plaintiff with a copy of the pamphlet entitled "Information Guide for Officers who are Threatened"; (b) Failure to advise the Plaintiff of welfare services available through the NSW Police; (c) Failure to refer the Plaintiff to the Police Psychology Unit for psychological and/or psychiatric assessment and monitoring; (d) Failure to ensure that the Plaintiff was made aware of the early signs and symptoms of any psychiatric and/or psychological condition that might eventuate from a threat such as that made by Hussein and to inform the Plaintiff of the appropriate steps to be taken upon recognition of such signs and symptoms including seeking appropriate assessment and/or treatment from the Police Psychology Unit or other suitably qualified persons; (e) Failure to ensure that the Plaintiff's psychological and/or psychiatric welfare was adequately monitored and kept under review; (f) Failure to carry out an assessment of security arrangements at the Plaintiff's home; (g) Failure to provide the Plaintiff with appropriate respite from his work as a police officer and security guard for Mr Carr following the threat referred to above; (g) Failure to maintain a safe system of work. (h) Failure to provide appropriate security measures to ensure that the plaintiff was and felt protected." 30 Although paragraph 19 of the amended statement of claim does not directly address the question of duty of care, the particulars of negligence by their terms, seem to provide a clue to the nature and content of the duty which is alleged. 31 It is to be observed that the amended statement of claim included two subparagraphs identified by the letter (g). The second of those subparagraphs asserts as a particular of negligence: "failure to maintain a safe system of work". I do not regard this as anything more than a statement of a breach of a duty of care said to have arisen on the pleaded facts. It does not particularise the breach of duty, it merely states it. In further analysis, I will ignore this subparagraph and refer to particular (g) as being the first mentioned subparagraph. 32 The particulars articulate allegations which suggest that the plaintiff was entitled to be provided with a "safe system of work" and that he was entitled to have measures taken to protect him from psychological harm caused by his work as a police officer. Such allegations are apt to describe the obligation of an employer to an employee. 33 At the conclusion of hearing, the plaintiff's submission was that the State owed him a non-delegable duty of care to prevent him from suffering harm. Again, the use of the term non-delegable duty is commonly used to describe the obligation of an employer to an employee. 34 That the plaintiff was entitled to the benefit of a duty of care was not put in issue by the defendant. However, the defendant did put in issue the nature and content of the duty owed to the plaintiff which, it submitted, was "informed by, inter alia, its statutory obligations under the Police Act 1990". Again, this statement relating to this issue is characterised by imprecision. No doubt that reflects the vagueness of the commencing point of the plaintiff's claim, namely the amended statement of claim. 35 In light of these submissions, the nature and content of the duty is something which the Court is obliged to resolve. 36 As I have pointed out, the Commissioner sits at the head of and is in charge of the mission, function and operation of the NSW Police Force. The NSW Police Force is an ordered and disciplined one. Although the relationship of employer and employee, and hence the strict obligations of master and servant, does not exist, the issue is whether the Commissioner rather than the State of NSW would owe like obligations to all members of the NSW Police Force. 37 The genesis of the common law duty of care owed by an employer to an employee is the exclusive responsibility which the employer has for the safety of the system of work, the place of work, and the equipment used for the work which his employees carry out. In respect of these matters, an employee has no practical choice but to accept and rely upon the employer's provision and judgment: Kondis v State Transport Authority (1984) 154 CLR 672 at 687-688 per Mason J. 38 In Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 345, Dawson J identified the principle in this way: "… where the duty of the employer to provide a safe system of work is non-delegable, the employer has the sole control over the system to which he subjects the employee and the employee must put up with it ." (emphasis added). 39 Where in such circumstances, an employee effectively entrusts his safety into the hands of his employer, then the employee is entitled, reasonably, to expect that reasonable skill and care will be taken: Kondis, per Mason J at 688. 40 In this area of discourse, the central element in determining the existence of a duty of care is the right to control and the exercise of actual control: Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 at 24 per Mason J; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 98 [277] per Hayne J, and at 116 [357] per Callinan J. 41 In the Law of Torts (9th ed), Professor Fleming describes "managerial control" as the basis for an employer being obliged to provide a safe system of work in this way: "Managerial control over organisation exacts a corresponding responsibility for such matters as the coordination of activities, layout of equipment, method of using machines and carrying out particular processes, safety instruction of personnel, provision of safety devices and encouragement of their use; in addition to the residual task of planning and supervising the general conditions under which the work is carried out. It requires protection not only against physical injury from accidents, but also against impairment of health …" (p 563). 42 The classic description of the content of a duty owed to an employee is that the employer must take reasonable care for the safety of the employee to avoid exposing the employee to unnecessary risk of injury: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J. The reasonable care which an employer is obliged to take may require devising a system of work or method of operation which eliminates the risk, or else which provides adequate safeguards against the risk: Czatyrko v Edith Cowan University (2005) 214 ALR 349 at [12]. 43 The duty of an employer to an employee is one within the recognised categories of non-delegable duty: Kondis at 679-680 per Mason J. A non-delegable duty has also been described as being "more stringent" than the usual duty because its content is one to ensure that reasonable care is taken: Kondis at [686] per Mason J; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 at [6] per Gleeson CJ, Crennan J agreeing. 44 As I have indicated earlier, the allegation in this case centres upon the managerial and organisational response to the very serious threat made to the plaintiff in the course of, and arising out of, his ordinary duties as a police officer. 45 The Commissioner was determined by the Police Act to be the person responsible for the management and control of the NSW Police Force. The Commissioner has exclusive responsibility for this. Particularly in the area of an organisational system of work, I would hold that a member of the NSW Police Force would be entitled to expect that the Commissioner would take reasonable care and skill for their safety. 46 Although the Commissioner, in fact, delegates to other police officers within the hierarchical structure, and is permitted so to do by the Police Act, the daily tasks of management and control, that is no reason to hold that the Commissioner does not owe to each member of the NSW Police Force a duty. On the contrary, it suggests strongly that the duty exists and ought be considered to be a non-delegable one, so that even if an officer lower in the hierarchy is careless in discharge of their duties, the Commissioner will still, at common law, be liable for that conduct. 47 The analogy with the duty which an employer owes to an employee is a good one. I would hold the Commissioner owes to the plaintiff an obligation which is the same as that at common law which an employer owes to an employee. 48 In all practical respects, there is no real difference between the role of the Commissioner and that of the ordinary employer. Although a police officer will have and may exercise the common law powers of a sworn constable, that is no reason to deny the existence of the duty owed by the Commissioner. Those powers affect the manner and extent to which police officers go about their task as members of the NSW Police Force. 49 The position of a police officer, having regard to the statutory regime, has been described as an employee: NSW v Williamson [2005] NSWCA 352 at [7] per Basten JA; Police Service of NSW v Honeysett (2001) 53 NSWLR 592 at [22] and [30] per Priestley JA. 50 This result is consistent with the result reached, although sometimes without argument and sometimes by different paths, by the Court of Appeal and by other Judges of this Court in recent times:

[40]

(1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function: (a) is in the course of the person's service with the Crown or is an incident of the person's service (whether or not it was a term of the person's appointment to the service of the Crown that the person perform the function), or (b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown. …" 60 Whilst s 213 of the Police Act provides for an exemption from liability for any member of the NSW Police Force (including the Commissioner) acting in the course of their duties providing that the exercise of a function is undertaken in good faith, the provisions of s 10 of Vicarious Liability Act have the consequence that the Crown may nevertheless be vicariously liable in respect of a tort committed by a member of the NSW Police Force even though that member, whilst acting in good faith, is exempt from any personal liability. 61 For completeness, I should note that there is no suggestion that any of the conduct by the Commissioner, his subordinate officers or any member of the NSW Police Force in this case was not in good faith. Accordingly, each of them would be personally exempt, to the extent that they were exposed to liability, but the Crown would remain exposed to a finding of liability because of its vicarious liability. 62 By reason of the provisions of the Vicarious Liability Act, the Crown is vicariously liable for the conduct of the Commissioner. That is because where a defective system of work is alleged, as is the case here, then the liability of the Commissioner arises out of his performance in the discharge of his statutory function which necessarily means that the Commissioner is acting in the course of his service with the Crown and that his conduct is directed to the carrying on of an activity of the Crown. Accordingly, s 8 of the Vicarious Liability Act has the consequence that the Crown is vicariously liable for the conduct of the Commissioner. 63 But the question then is how does the plaintiff bring proceedings against the Crown. 64 The answer to this question lies in the second statute, namely, the Crown Proceedings Act 1988. 65 This is a permissive Act which enables a person who has a lawful entitlement to bring proceedings against the Crown by suing as the named defendant, the State of New South Wales. 66 Section 5(1) is in the following terms: " 5. Crown may be sued

[46]

The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies: (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions, (b) the general allocation of those resources by the authority is not open to challenge, (c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), (d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate." 77 The common law test for a breach of duty of care is firmly established. The classic statement of a common law breach of duty is to be found in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 per Mason J (Stephen and Aickin JJ agreeing): "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have." 78 The High Court of Australia recently determined that Shirt's case ought not be reconsidered as the appropriate common law test: Fahy at [7] per Gleeson CJ, [78] and [133] per Kirby J, [213] per Callinan and Heydon JJ, [241] per Crennan J. 79 The question remains whether the provisions of the Civil Liability Act have introduced a different test for breach of duty and whether Shirt's case has any remaining work to do. 80 An analysis of the Civil Liability Act commences with an acknowledgement that there are a number of separate steps which must be taken to establish a breach of duty under the Civil Liability Act. 81 The first step is that a plaintiff must identify "a risk of harm" against which he (or she) alleges a defendant would be negligent for failing to take precautions. Section 5 of the Civil Liability Act defines "harm" as meaning "harm of any kind, including … personal injury or death, damage to property and economic loss". 82 It is essential in considering the first step to carefully identify the particular risk of harm to which the later steps will be applied. As the judgment of Gummow J clearly demonstrates in RTA v Dederer (2007) 234 CLR 330 at [59]-[61], it is only through the correct identification of the risk that an assessment of the reasonable response can be made. 83 At this stage of the inquiry, and before any consideration of causation as provided for in s 5D of the Civil Liability Act, it is sufficient if the risk of harm is described as a class of injury, as distinct from the particular injury actually suffered by the plaintiff. This approach accords with the traditional common law approach: Chapman v Hearse (1961) 106 CLR 112 at 115; Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 at 390 per Barwick CJ, at 403 per Windeyer J, at 414 per Walsh J. 84 Although the plaintiff's pleadings and submissions did not address this question with the precision which is required, I would regard the risk of harm in this case as properly to be described in this way: the risk of the plaintiff without appropriate early intervention suffering psychiatric injury as a result of receiving a serious death threat. 85 In this case, the plaintiff identified, and the parties proceeded on the basis that the actual harm which was suffered by the plaintiff was PTSD. That harm was suffered as a consequence of receiving a threat from Hussein. But it was said that it could have been prevented by early intervention. 86 The next step is to address the three elements in s 5B(1) of the Civil Liability Act. 87 Section 5B presupposes the existence of the law of negligence and operates against its background: RTA v Refrigerated Roadways Pty Limited [2009] NSWCA 263 at [173] per Campbell JA (McColl JA agreeing). However, the statute requires that a trial judge must be satisfied that each of the elements in s 5B(1) are satisfied before a finding of a breach of duty can be made. Refrigerated Roadways at [442]-[444] per Sackville JA. 88 The three separate elements in s 5B(1) represent the concepts of foreseeability, probability and reasonableness of precautions: see the Ipp Report, para 7.11. These concepts are each represented in the common law, and are often conflated in the term "reasonable foreseeability" but the statute now makes it clear that each must be separately addressed. 89 I do not read the caution of Basten JA in Drinkwater & Ors v Howarth [2006] NSWCA 222 at [21] as contradicting this approach of addressing these provisions of the Civil Liability Act separately. 90 The first element is that a plaintiff must establish that the risk of harm was foreseeable to the defendant. Foreseeability is described in the statute differently from the common law description. In the Civil Liability Act, s 5B(1)(a) describes a foreseeable risk as a risk of which the defendant knew or ought to have known. A plaintiff must establish either actual knowledge in the defendant of the risk of harm, or else constructive knowledge (ie. the defendant ought to have known) in the defendant of the risk of harm. 91 The Ipp Report was the source of the provision of the Civil Liability Act under discussion. In para 7.10, the following remarks were made: "Whereas probability is a scientific concept, foreseeability is a matter of knowledge and inference. For instance, no matter how likely it is that something will occur, it is foreseeable by a person only if that person knows or ought to know that it might occur. (Knowledge must be judged as at the date of the alleged negligence and not at a later date; that is, without the benefit of hindsight and ignoring subsequent increases in knowledge about the risk and its consequences." 92 In my opinion, the plaintiff must satisfy the Court that the defendant, at the date of the alleged negligence, knew of the alleged risk of harm, or else, by reference to other facts, matters and circumstances ought to have known it. Those other matters will vary from case to case but may include such things as the common knowledge and experience of others in the similar position of the defendant, public notoriety of a particular risk of harm, publications and academic knowledge which might be expected to be read by people in the defendant's position and the obviousness or the likelihood of the event happening when using common sense. 93 The second element, which is cumulative on the first, is whether the alleged risk of harm was "… not insignificant". This must also be judged from the perspective of a reasonable person in the defendant's position, and in prospect not retrospect: Stojan v Kenway [2009] NSWCA 364 at [136] per McColl JA. 94 There have been a number of decisions of the Court of Appeal which have considered this phrase. It is fair to say that the phrase "not insignificant" has not yet been the subject of any comprehensive detailed analysis. In Waverley Council v Ferreira [2005] NSWCA 418 at [69], Ipp JA (with whom Spigelman CJ and Tobias JA agreed) held that the particular risk was not insignificant but there was no discussion of why that was so. Similar findings, without discussion, were made in Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 at [92]ff per Beazley JA, and in Rhodes v Lake Macquarie City Council [2010] NSWCA 235 at [42] per Hodgson JA (with whom Macfarlan JA and Handley AJA agreed). 95 In Refrigerated Roadways, Campbell JA (with whom McColl JA agreed) at [186] raised, but did not decide, a question of whether there was any difference in substance between the common law test of a risk coming to fruition as being "… not far-fetched or fanciful" and the statutory test "… not insignificant". 96 In Shaw v Thomas [2010] NSWCA 169, Macfarlan JA (with whom Beazley and Tobias JJA agreed) said at [44] that the statutory test was more demanding than the common law test, "but … not by very much". 97 Kirby J in Harriton v Stephens (2006) 226 CLR 52 at 94 [136]-[138], noted that the Civil Liability Act made "… substantial alterations to the [common law] principles of reasonable foreseeability …". His Honour also noted that the Civil Liability Act was fundamentally restrictive and that "… obstacles for plaintiffs seeking damages in tort, especially where the damages are sought in respect of personal injury, have been considerably increased". 98 The Ipp Report at para 7.15 described the recommended change in this way: "The Panel favours the phrase 'not insignificant'. The effect of this change would be that a person could be held liable for failure to take precautions against a risk only if the risk was 'not insignificant'. The phrase 'not insignificant' is intended to indicate a risk that is of a higher probability than is indicated by the phrase 'not far fetched and fanciful', but not so high as might be indicated by a phrase such as 'a substantial risk'. The choice of double negative is deliberate. We do not intend the phrase to be a synonym for 'significant'. 'Significant' is apt to indicate a higher degree of probability than we intend". 99 On this aspect of the Act, the Premier of NSW said in his Second Reading Speech when debating the Bill: "We have adopted the approach in the Ipp Report to the duty of care and causation. A risk has to be not insignificant before a court can find that it was reasonably foreseeable. This will send a clear message to the courts that, under the current common law, liability for insignificant risk is too easily imposed. Our new formulation will emphasise the community's reasonable expectation that people should have to guard only against risks that are a real possibility." 100 Spigelman CJ speaking extra judicially at Lincoln's Inn, London on 16 June 2004, said of the phrase "not insignificant" this: "The not 'far fetched or fanciful' test for foreseeability has been replaced by a test that a risk be 'not insignificant' which, despite the double negative, is of a higher order of possibility." 101 I will now attempt to draw together this variety of sources to state what approach, in my opinion, is the appropriate one to interpreting the phrase "not insignificant":

[51]

(e) Whether a risk is "not insignificant" must be judged from the defendant's perspective and must be judged on a broader base than a mere reductionist mathematical formula. 102 The third element of s 5B(1) which requires attention is the conduct of a reasonable person. This element is perhaps the one which most closely reflects the common law: Refrigerated Roadways at [177] per Campbell JA. Any consideration of this element also requires attention to the provisions in s 5B(2) of the Civil Liability Act. 103 Section 5B(2) provides a non-exhaustive list of factors which a court is required to take into account in deciding if this step is made out: Refrigerated Roadways at [173] per Campbell JA; [445] per Sackville AJA; Erwin v Iveco Trucks Australia (2010) 267 ALR 752 at [81] per Sackville AJA (Basten and Campbell JJA agreeing). 104 Section 5C, in part, casts light upon the non-exhaustive list of factors in s 5B(2). In particular, s 5C(a) notes that the burden of precautions is not to be narrowly construed but must have regard to the burden of taking precautions against other similar risks of harm. This reflects the remarks of Bryson J in Waverley Council v Lodge [2001] NSWCA 439 at [35]-[36]. 105 Section 5C(b) seems also to reflect the remarks of Handley JA in Ainsworth v Levi (Court of Appeal, 30 August 1995, unreported). His Honour there held that the mere fact that there was an alternative method of undertaking the relevant conduct did not furnish any evidence of negligence let alone demonstrate that it was, thereby, established for a failure to take the alternative course. 106 Although s 42 applies to the Commissioner, in light of the way in which these proceedings were conducted, and the nature of the particular allegations of breach of duty, the issues to which s 42 directs attention are not relevant. 107 I should also note, having concluded a review of the legal principles applicable to a duty of care and breach of that duty, that there are specific statutory provisions in the Civil Liability Act dealing with mental harm. 108 In particular, s 31 limits liability to only those conditions recognised as psychiatric illnesses. Section 32 also provides that no duty of care is owed unless a person of normal fortitude might suffer a recognised psychiatric illness without reasonable care being taken. 109 In this case, the particular harm was PTSD, which is a recognised psychiatric illness. 110 In this case, the defendant did not submit that a person of normal fortitude would not have suffered PTSD in the circumstances before the Court. 111 Accordingly, no issue falls for consideration in this judgment about the application of these sections.

[52]

The Central Undisputed Facts 112 In November 2003, the plaintiff arrived at the Premier's home at Maroubra and observed a Chubb security guard sleeping in the driver's seat of his Chubb security vehicle. 113 A conversation ensued, a little later outside the Premier's home, in which the plaintiff confronted the security guard Hassan Hussein ("Hussein") about his sleeping on duty. Hussein denied it. 114 The plaintiff then proceeded with the Premier to drive to the city so that the Premier could attend his daily appointments. About five minutes after leaving the Premier's house the plaintiff received a call on his private mobile telephone from Hussein. The following exchange occurred: Hussein: "Are you going to report me? Plaintiff: You know that you are not allowed to sleep while you are on duty. Hussein: I was not sleeping." 115 Shortly prior to Christmas, the plaintiff reported this matter and also a further incident of Hussein being asleep, which had relayed to him by Sergeant Donohue of Maroubra Police Station, to the relevant officers of the Premier's Department. 116 At about 1.30pm on Christmas Day, the plaintiff received a call on his private mobile phone (which was the same mobile phone upon which he had been contacted in November 2003). He recognised the caller's voice as that of Hussein. In the plaintiff's statement of evidence for these proceedings (Ex E) at para 12, the following conversation is recorded as having occurred: Hussein: "Peter this is Hassan" (He was yelling and his tone was immediately aggressive and abusive). Plaintiff: Is everything okay? … Hussein: What have you done you son of a bitch. I will get you. I will put a bullet in the back of your head you cunt. You made me lose my job, you son of a bitch. You watch your back cause I will put three bullets to the back of your head, you son of a bitch. You don't know what you're talking about. I wasn't sleeping on the job. You made me lose my job. I will kill you, you copper cunt." 117 Immediately, after the conversation finished, the plaintiff made some handwritten notes of what was said. The handwritten notes were later handed to Mr Scarcella of the Maroubra Police Station and were attached (by way of photocopy) to the statement which Mr Scarcella made for the purpose of these proceedings which became Ex 16. Those handwritten notes which were finished being written at 1.39pm on 25 December 2003 record this as being said: "1.30pm Thursday 25/12/03. Hassan called said 'What have you done you son of a bitch?' I will get you. I will put a bullet in the back of your head, you cunt. You made me lose my job, you son of a bitch. Just watch your back, because I will get you. I will put a bullet to the back of your head you son of a bitch. You don't know what you are talking about. I wasn't sleeping on the job. You made me lose my job. I will kill you, you copper cunt . Then terminated the call. I was unable to get a word in the conversation. Hassan terminated the call 15-20 seconds later." 118 After making the notes, the plaintiff telephoned Maroubra Police Station and reported the threat. At about 3pm on that day the plaintiff attended at the Maroubra Police Station and made a statement in relation to the phone call from Hussein. 119 According to the NSW Police Force COPS record, Event Reference: E19303464 ("the COPS record"), which is part of Ex U, the plaintiff told the officers at the Maroubra Police Station that: "… he found the phone call offensive, intimidating and threatening. He also expressed concerns regarding his safety as he believes that given the opportunity the defendant would attempt to assault him ... The defendant is a personal security guard with the NSW police and as a result of this work has contact with Chubb security guards. The defendant was working with Chubb Security and had his employment terminated due to misconduct. He was seen by the victim asleep, when his duties required him to be constantly observant. As a result of this misconduct his employment was terminated." 120 A little later, in the same COPS record, is the following entry: "At 1.30pm Thursday 25 th of December 2003 the victim received a phone call on his private mobile, number … The victim, having spoken to the defendant numerous times on the phone and in person, recognised the defendant's voice immediately. The defendant said, 'Peter, this is Hassam'. The victim states that the defendant was yelling and that his tone was immediately aggressive. The victim said, 'Is everything OK?' The defendant said, 'What have you done you son of a bitch. I will get you. I will put a bullet in the back of your head you cunt. You made me lose my job you son of a bitch. You watch your back cause I will put three bullets to the back of your head, you son of a bitch. You don't know what you're talking about. I wasn't sleeping on the job. You made me lose my job. I will kill you, you copper cunt'. Before the victim could say anything, the defendant terminated the call. The victim immediately made notes of the conversation and contacted Maroubra Police Station." 121 Clearly the sequence of events, supported by the COPS Record, was that at about 1.30pm on Christmas Day, Hussein telephoned the plaintiff and made the threats which are recorded. The call was terminated before the plaintiff could respond to the threats. The plaintiff immediately made handwritten notes. He then telephoned the Maroubra Police Station and reported the event and within a relatively short time thereafter attended the Maroubra Police Station in person, provided a comprehensive report, and made a formal statement. 122 In a duty book entry (Ex 3), which was probably completed on the evening of 25 December 2003 or, at the latest, the next day, the plaintiff records the following with respect to the events of 25 December 2003: "Receive threatening call from Hassan Hussein. 1.30pm TD. Received call from Hassan Hussein on private mobile … and said, I am going to kill you you cunt. You made me lose my job. Why did you lie about me that I was sleeping on the job. I wasn't sleeping and you got me sacked. I am going to fucking kill you, you cunt. I will put three bullets to the back of your head and I will cut your throat off. I have the Lebanese gang working with me and you're dead." 123 The whole of the entry up to the words "… and said" is written in black ink as is the entry for the previous page of Monday, 20 December 2003 and the following six pages up to and including Wednesday, 31 December 2003. The words following "and said" in the 25 December 2003 entry are written in entirely different pen, and in a blue ink, rather than black ink. 124 There are some differences between these accounts which the defendant submitted were significant and it will be necessary in due course to resolve those differences. It is sufficient, at this stage, to note that a very serious threat was made by Hussein to the plaintiff. The defendant did not suggest otherwise. 125 On 26 December 2003, according to the police COPS record, officers from Maroubra Police Station attended at Hussein's address where he was arrested and taken to Maroubra Police Station. He was charged and bail was refused. 126 Two features of what occurred during that arrest are important. They are both recorded in the COPS record which is part of Ex U. Those entries are as follows: "While retrieving some clothing the defendant spoke to attending police. The defendant said, 'Those threats were not a joke. They were real. He is going to get it. He fucken lost me my job. I am going to fucken stab him in the neck. You're from Maroubra? You're all corrupt'." 127 After he had been taken to Maroubra Police Station and introduced to the custody manager, Hussein was asked if he wished to make any further comment. According to the COPS record, he said: "Yes I do. The call I made still stands. He lost me my job. He will not get away with it." 128 Again, according to the COPS record, the plaintiff was notified by Mr Scarcella of the fact of Hussein's arrest and the fact that he had been refused bail. There is no record of the plaintiff being informed of what Hussein had told the arresting police or else the custody manager. 129 Hussein was charged with two offences. The first was an offence contrary to s 60(1) of the Crimes Act 1900 alleging that he had intimidated a police officer whilst the officer was executing his duty. The second was an offence contrary to the now repealed s 85ZK(1)(b) of the Crimes Act 1914 (Cth) alleging that he had used equipment connected to a telecommunications network in relation to the commission of an offence against the law of the State, namely to intimidate police. 130 On 30 December 2003, Hussein's application for bail came before the Parramatta Local Court. Bail was refused by that court and the matter was adjourned to the Waverley Local Court on 6 January 2004. 131 According to the evidence of Mr Reeves who attended at the Parramatta Local Court on 30 December 2003, he telephoned the plaintiff after the bail application had been dealt with and had a conversation with him in which he said words to the following effect: "Bail was refused. He doesn't know where you live. I have just listened to the family as they left court and they have not made any threats. You don't need to worry." 132 The plaintiff challenged the accuracy of part of the contents of this conversation. It was his evidence that at no time was he told by Mr Reeves about the fact he didn't have any need to worry. This difference will need to be resolved. 133 The matter next came before the Waverley Local Court on 6 January 2004. On that day, although Hussein was in custody, an Apprehended Violence Order was sought by Mr Scarcella in order to protect the plaintiff. It is not entirely clear what happened on 6 January 2004. However, the records of the Waverley Local Court indicate that on 13 January 2004, it made an Interim AVO for the protection of the plaintiff against Hussein. The orders, which were in their usual form, restrained Hussein from engaging in conduct which intimidated the plaintiff or any other person having a domestic relationship with the plaintiff, restrained him from stalking the plaintiff, restrained him from going within a kilometre of the plaintiff's place of residence or place of work, and restrained him from making contact with the plaintiff. 134 Ultimately, on 18 February 2004, when Hussein was sentenced an AVO was made for a period of two years which restrained Hussein from engaging in conduct of the kind described above. It added a further condition which was that Hussein was not to go within 100 metres of the Maroubra Police Station. 135 Hussein made an application for bail to the Supreme Court of NSW. That application was heard on 21 January 2004. The Court granted bail on quite strict conditions including twice daily reporting, residing at a designated residence, and not leaving that residence between 5.30pm and 8.30am except in an emergency. As well, it was a condition of his bail that he (Ex Z): "(f) … not contact in any way whatsoever or cause to be so contacted Acting Inspector Peter Benic of the NSW Police or any member of his family; (g) … not be at any time at any place within a radius of two miles of the Maroubra Post Office or the Coogee Local Court (except to attend Waverley Local Court) or upon any part of the Governor Macquarie Tower in Elizabeth Street, Sydney or the NSW State Parliament House." 136 It appears that Hussein was released on the following day, 22 January 2004. After an appearance at the Waverley Local Court on 28 January 2004, Hussein appeared before the Waverley Local Court on 18 February 2004, where he pleaded guilty to the charges. The presiding magistrate sentenced him to six months imprisonment but suspended that sentence upon him entering into a recognizance to be of good behaviour for a period of six months. 137 The presiding magistrate had before her a Probation and Parole Service Report dated 18 February 2004 (part of Ex 27) which included the following: "Mr Hussein acknowledges that he made the phone call when he was angry at what he saw as an unfair dismissal from a much valued job. He felt the police did not care about his predicament and has stated that he had no intention of carrying out any threat but that he had simply 'spat the dummy'. He expressed his remorse, stating that he knows 'that it was wrong' and that he 'should not have done it'." 138 The presiding magistrate was also provided with a report from a clinical psychologist, Mr Tom Jones dated 17 February 2004 (part of Ex 27). This report included the following about Hussein: "As an adult, he has characteristics of gambling disorder and a problem of anger control. Recommendations I do not consider him to be likely to actually carry out an act of physical aggression. I recommend that he undergo psychological treatment aimed at helping him to control anger and gambling. I recommend that he refrain completely from consumption of alcohol." 139 The presiding magistrate also had a letter written to her by Hussein (part of Ex 27). That letter included the following: "Words cannot express as to how remorseful I am for what I have done and if I could turn back time I would have expressed my feelings in a way that would not have been in a threatening manner when I spoke to Inspector Peter Benic … The day I phoned Inspector Peter Benic I was very angry as I felt I was unfairly dismissed. I consumed some alcohol that day as it was Christmas Day and as I have not drank alcohol before as my family do not drink and of course I could not tell them, I feel the drink had made matters worse and it all got out of hand. I have never been physically aggressive towards anyone in my life, even towards for my family except for abuse when I was angry but I do not want to be like this and I do not do it intentionally but I am misunderstood many a time because of this. … I am not a dangerous person and after consulting the psychologist Tom Jones, he feels that I need psychological treatment for my anger management and gambling which I am very eager to do and at the same time I do need to work to help with my family and I hope, that in the light of the above, you will give it your full consideration before sentencing me." 140 The evidence is not precise as to when the plaintiff was told about the sentence which Hussein received. The evidence does not suggest that the plaintiff received copies of the material to which I have just referred and which was before the sentencing magistrate. 141 Except for a coincidental meeting on 8 April 2006 to which it will be necessary to refer later, the plaintiff has not seen or had any contact with Hussein again.

[56]

Lack of Cross-Examination: The Principles 145 The trial was fixed for hearing for a period of over ten days. It in fact occupied seven. The parties conducted the trial with commendable efficiency. However, as is plain from what follows, on a number of disputed issues, witnesses were not cross-examined, or else if they were, their attention was not specifically directed to particular information contained in documents which were later tendered and which might have cast light on their recollections or else the reliability of their evidence. 146 As well, counsel were content to tender, for the court to read, some quite voluminous material to which little if any detailed reference was made in the course of submissions. 147 I do not intend, by these remarks, to be critical of counsel involved in the presentation of their respective cases. However, this method of proceeding has meant that these reasons are perhaps longer than they otherwise might have been, have taken longer to prepare than is desirable, and it has been necessary to approach some of the disputed issues of fact without the benefit of full submissions from counsel. 148 As I have said, in this matter both parties tendered statements of witnesses who were not cross-examined. As well, although some witnesses were called to give oral evidence in chief in addition to their statements, they were not cross-examined on some important parts of their evidence. 149 Because some of the witnesses were not cross-examined, or even directly challenged about their evidence, what, if anything, the Court can conclude from the lack of cross-examination or direct challenge is a matter which will apply to the evidence of quite a number of the witnesses who were called, or whose statements were tendered. 150 Although Harrison J has cogently analysed this issue recently: Hamod v State of NSW (No.12) [2009] NSWSC 242 at [176], it is convenient if I set out my understanding of the authorities which bind me on this issue. 151 It is not a principle of law that a witness's evidence must be taken to be true if it is not the subject of cross-examination: Fabre v Arenales (1992) 27 NSWLR 437 at 451D per Mahoney JA (Priestley and Sheller JJA agreeing); Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587C-588A per Samuels JA (Meagher JA agreeing). However, where a witness, whether expert or not, is not cross-examined, then, prima facie, the court ought to accept the unchallenged evidence: Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [112] per Tobias and McColl JJA. 152 However, such evidence is not necessarily to be accepted where:

[61]

Contemporaneous Documents: The Principles 155 In attempting to resolve disputed issues of fact, or conflicting evidence, one traditional method has been to examine the demeanour of the witness, and the manner of the witness giving evidence both in chief and when being cross-examined. In this case, many of the witnesses who gave oral evidence were serving or retired police officers. Each of them was very experienced at giving evidence. It was a part of their experience to be able to give evidence without allowing their true feelings, and hence their demeanour, to be an obvious factor which might influence the Court on the issue of the acceptability of their evidence. 156 Gleeson CJ in Fox v Percy (2003) 214 CLR 118 noted the caution that the trial judge should take in relying solely or principally on demeanour as a method of rational decision making. At [31] he said: "Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical." 157 Thirty-five years earlier, Lord Pearce, in his speech in the House of Lords in Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Law Rep 403, said at 431: "It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance." 158 However, it remains the position that in resolving factual conflict between witnesses, one cannot ignore or overlook the subtle influence of demeanour, even if not expressly acknowledged: Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179 per McHugh J. 159 In this judgment, I will proceed upon the basis that to give priority to contemporaneous documents, and to make comparison of evidence with known facts is the preferred method of proceeding: see Atkin LJ in Sociètè d'Avances Commerciales (Sociètè Anonyme Egyptienne) v Merchants' Marine Insurance Co (The 'Palitana') (1924) 20 Lloyds Law Rep 140 at 152; Fox v Percy at [30] per Gleeson J.

[62]

Duty Book 160 One of the principal contemporaneous records which featured in the proceedings was the plaintiff's duty book for the period from October 2002 to February 2004. It became Ex 3. 161 The plaintiff, whilst giving his evidence, used it as a reminder of when he had spoken to various people, and on occasions, of what he had said or what he had been told. Upon careful examination, the entries, or the detail which accompanied them, were idiosyncratic, and did not follow any identified guidelines. Some entries were routine and banal. Other entries were of significance. It was not possible to tell why some of the entries were included. 162 Initially, the plaintiff in his evidence in chief said that the duty book entries contained a complete record of everything which occurred on any given day. He said that the entries were accurate and were generally made at about the time they occurred. 163 In cross-examination, he agreed he was not required to maintain a duty book once he was promoted to the rank of Acting Inspector. He said that, nevertheless, he (T106.45): "… recorded everything that I thought was necessary to go into my duty book." 164 The plaintiff gave evidence (T108.24ff) that in late 2003 and 2004 there were no guidelines which laid out what he was, or ought to, record in his duty book. He said that the only instruction he received was one relating to the recording of some details about the movements of the Premier. I had the impression that this was an instruction given to him by the Premier's Department rather than the Commissioner for Police, or his delegate. 165 At another time in his cross-examination (T109.12ff), the plaintiff said that no-one had told him what to record in his duty book, but that he recorded "… anything which was relevant to [my] work or [myself]". This he said would include major or minor injuries, and I would infer and their effects on him. 166 Still later, he said that in so far as Hussein's threats were concerned (T129.12) "… I was writing down what I was experiencing and the symptoms I was having due to the threat by Hussein …". He did that so there was a record of it (T129.22). I would infer that the necessity for a record was against the possibility of a later claim of some kind for compensation. 167 However, Ex 3, the duty book, for the period from 25 December 2003 through to 18 February 2004 (when this book finished), seems to include a rather confusing cocktail of facts, matters and circumstances which in some cases were relevant and which in other cases seems to be completely peripheral and irrelevant. 168 On the basis of the plaintiff's evidence, and the nature of the entries made, I am satisfied that, whatever else may be said about the entries in the duty book, particularly in terms of their logic, I should infer that, if the plaintiff felt that anything was untoward about his own health, including his mental health and wellbeing, or that any relevant event occurred relating to Hussein and the threats which he had made, there would be a reference to it in his duty book. 169 From this I conclude that I can be confident in finding that, where there is in the duty book no note at all of any symptoms, or feelings of concern, anxiety, depression or the like, and no note of the plaintiff being involved in any activity relating to Hussein or his threats, then on those days nothing of relevance or importance occurred, and the plaintiff was not feeling in any distress or suffering any sleep disturbance of any material. 170 I have not made, nor do I make, any finding that every entry in the duty book is completely accurate. In particular, as will become apparent, I do not accept in its entirety the accuracy of the entry for 25 December 2003. That is because of differences between it and other contemporaneous evidence of the event in question. 171 However, in general terms, the entries in the duty book, being contemporaneous, are entitled to significant weight and I would regard them as more likely to be accurate than the unaided recollection of a witness many years later.

[63]

Other Duty Books 172 No duty books covering the period from February 2004 to April 2006, when the plaintiff ceased any active duty with the NSW Police Force, were tendered in evidence. 173 Neither party commented on the failure of the other party to tender those duty books. Neither party submitted that the conventional inference ought to be drawn on this issue: see Jones v Dunkel (1959) 101 CLR 298. 174 In those circumstances, I merely note that the evidence about various events, which may have affected the plaintiff between February 2004 and April 2006, including his feelings and the effects of Hussein's threat upon him, such as anxiety and interrupted or inadequate sleep, are uncorroborated by any contemporaneous note or record. Factual Chronology: Some Disputed Issues 175 There are a number of factual issues thrown up by the chronology of facts to which I have earlier referred. 176 What words were spoken by Hussein: The first issue relates to what Hussein said to the plaintiff in the first phone call on 25 December 2003, and in particular whether Hussein said, as is recorded in the plaintiff's duty book, "… I will cut your throat off …" and "I have the Lebanese gang working with me and you're dead …". 177 I observe that on the evidence of what Hussein told the arresting police officers, he made a threat to stab the plaintiff. However, the suggestion contained in the plaintiff's duty book, that the threat included that Hussein was to cut the plaintiff's throat, was not noted in the handwritten notes made immediately after the phone call, nor in the account which the plaintiff gave to Maroubra Police, nor in the account which he gave in his statement prepared for evidence in this court. He gave no oral evidence at all about this part of the threat. 178 Although this particular phrase, is probably not significant, because the defendant accepts, and the evidence clearly demonstrates, that the threat which Hussein made was a very serious one, I cannot be satisfied that this first part of the threat was in fact uttered by Hussein, principally because the contemporaneous documents, except for the plaintiff's duty book, do not record it, and because the words in themselves make no sense at all. 179 The second disputed phrase, which related to the association of Hussein with a Lebanese gang, and the inference that the gang would do his bidding for him, was a phrase which assumed a far greater degree of importance in the proceedings. 180 A little background is necessary. As the former Premier, Mr Carr notes in his statement (Ex QQ), in 2002 and 2003 there was an increase in violence in certain areas of Sydney which included murders and drive by shootings of police stations. That, together with Mr Carr's public stance on law and order, led to an increase in the level of visible security provided at his private home in Maroubra. That was how Hussein came to be carrying out the role of a static guard in uniform at the time of his confrontation with the plaintiff. 181 The plaintiff's evidence, before me, was that the increase in violence was associated with the conduct of a number of Lebanese criminal gangs (T102.48). One of the fears, which the plaintiff said he felt in the weeks after the threat had been made to him, but whilst Hussein was still in custody, was that his safety was still threatened. That was because of the association between Hussein and the Lebanese criminal gang of which the plaintiff said he had been told by Hussein. 182 As can be observed from the contents of the contemporaneous documents which I have recounted, there was no mention of this phrase in the plaintiff's own handwritten notes of the conversation, nor in the COPS Records at the Maroubra Police Station. 183 In addition to that discrepancy, in a statement signed by the plaintiff on 25 December 2003 at the Maroubra Police Station, which was intended to be used for the purpose of evidence against Hussein, the plaintiff made no reference to, or any mention of, Hussein's association with a Lebanese criminal gang. 184 As well, the plaintiff made a further statement on 5 January 2004 at the Maroubra Police Station, which although limited in purpose to the identification of the voice of Hussein on the telephone, made no reference to anything being said about Hussein's connection with a Lebanese criminal gang. Whilst the absence of such a reference from this statement might be explained by the limited purpose for which the statement was being obtained, the visit to the police station and the conversation which the plaintiff had with Mr Scarcella provided the plaintiff with an opportunity to inform Mr Scarcella that this material had been said to him, but had been omitted from his original statement. Such an exchange did not occur. 185 In his evidence, and in the presentation of this case, the plaintiff clearly regarded the use of these words as being a matter of significance because it was a factual element upon which the plaintiff relied to explain, and perhaps justify, the way in which he later behaved. 186 I am not satisfied that there was in the threat made by Hussein any reference to his connection, or association, with a Lebanese criminal gang. If such a matter had been said, given its significance I would have expected it to have been recorded in the contemporaneous notes taken immediately after the phone call, or at least in those notes prepared at the Maroubra Police Station later that afternoon when the plaintiff had to recount to Mr Scarcella what Hussein had said to formalise his statement. In addition, the fact that the plaintiff did not refer to the matter when he revisited the police station on 5 January 2004 serves to confirm that it is unlikely that these words formed part of Hussein's threat. 187 As well, having regard to the significance which this phrase held for a number of the submissions made in this case, I regard it as most surprising that no mention is made of this disputed phrase in the plaintiff's evidentiary statement (Ex E: para 12). This omission strongly fortifies the conclusion which I have just expressed. 188 That is not to say however that the plaintiff may not have made such a connection in his own mind without the need for Hussein to have said anything specific on the subject. The matter was addressed in cross-examination. The plaintiff gave this evidence (T116.21ff): "Q. So far as the existence of the threat was concerned, for ever so long as Mr Hussein was in prison, bail refused, he wasn't a threat, was he? A. That's not correct.

[71]

WITNESS: Correct." 189 It seems to me that although no specific mention was made by Hussein in the course of his threats that he was connected with a Lebanese criminal gang, the fact that Hussein had a name which most people would associate with a person of Arabic or Lebanese background, the nature of the violence communicated in his threats, and the context to which I have earlier referred about the general violence being perpetrated by Lebanese criminal gangs, would no doubt have created a fear in the mind of the plaintiff as to what might happen if there was such a connection. I think the plaintiff has translated this fear into specific words which he wrote in his duty book, thereby incorrectly recording the precise terms of the conversation. 190 Whether or not the words were said, and I am not satisfied that they were, I am nevertheless satisfied that the plaintiff had a genuine fear for his own safety during the period of a few weeks immediately after the threats, even though Hussein was in custody. 191 Aggravating conduct by Hussein: A further disputed issue was whether Hussein engaged in any conduct either to the arresting police or else in court which aggravated his initial threats, and whether this conduct which I will call the aggravating conduct, became known to the plaintiff. 192 As I have described earlier in this judgment at paragraphs 126 and 127, when Hussein was arrested at his house on 26 December 2003 he made comments which might reasonably be taken as affirming his original threat. Again, when brought before the custody manager, he made some further comments which indicated that he stood by his threats. 193 The detail of this aggravating conduct was recorded by the arresting officers and can be found in the Facts Sheet dated 27 December 2003 which forms part of Ex 28. A more concise, but nevertheless, adequately detailed version appears in the four page document, Ex V, which formed part of the "Complaint & Summons - Apprehended Violence" which Mr Scarcella made to the Waverley Local Court on 5 January 2004. 194 The plaintiff said that he was given a copy of Ex V by Mr Scarcella at Maroubra Police Station. Although he did not specify when that happened, I note that the plaintiff attended the Maroubra Police Station on 5 January 2004 in order to complete a second statement which addressed a question as to his capacity to identify the voice of Hussein. I think that the probabilities are that he received the document, Ex V, on that occasion. 195 The plaintiff gave an account in his statement (Ex F, para 20) that Mr Murchie had informed him that Hussein had engaged in this particular aggravating conduct. Mr Murchie's statement (Ex 14) makes no specific reference to this. It is entirely possible that Mr Murchie did make some reference to this conduct when speaking to the plaintiff and that this conversation would amount to a second source confirmatory of the material in Ex V from which the plaintiff became aware of this aggravating conduct. 196 It is therefore clear from the evidence that this aggravating conduct occurred and the plaintiff knew about it. 197 The plaintiff gave evidence of knowing, because he had been told, of some further aggravating conduct by Hussein, namely that Hussein had repeated before a court on more than one occasion the threats which he had made to the plaintiff. He said that he had been informed of this conduct by both Mr Murchie and Mr Scarcella. The plaintiff's evidence was (T114.25): "Q. Repeating his threats, Mr Hussein repeating his threats to a Judge or Magistrate was a significant matter in assessing the seriousness of his threat? A. Yes.

[76]

Q. Who told you that? A. I - at the time I - I received calls from Inspector Joel Murchie and Detective Senior Constable Scarcella from Maroubra Police Station." 198 Neither Mr Murchie nor Mr Scarcella gave any evidence of being present and hearing these threats being made in any court, or in the presence of any presiding magistrate. 199 A copy of the court file at Waverley Local Court, which became Ex 27, does not contain any transcript of what occurred on the various occasions that the matter was listed. However, none of the documents in the file contains any reference to the fact of any such threats being made or repeated. Since the making or repetition of such threats would be a very serious matter, and would be relevant to the issue of bail or else to the ultimate sentence, I would have expected to have seen reference in the court file to any threats being made in the presence of the magistrate. I would also have expected to see reference to the making of the threats in the police and Crown submissions on the bail application (Ex W) because the making of them, particularly in a public forum, would be a significant reason for the Supreme Court to have refused bail. There was no such reference in those documents. 200 Mr Reeves attended the Local Court at Parramatta on 30 December 2003. He did not give evidence of hearing Hussein making any threat in court. It was not suggested to him in cross-examination that he had heard such a threat. His relatively contemporaneous note of what occurred makes no mention of any threat being made by or repeated by Hussein (T452.23). His evidence, to which I have earlier referred, was that he informed the plaintiff that he had no need to worry about his safety from what was said by Hussein's family. That is inconsistent with any threat being made by Hussein in Mr Reeves' presence at court. I have no doubt that, if a threat was made, Mr Reeves would have heard it, and passed it on not only to the plaintiff but also to Mr Slattery and Ms Smith. Those things did not happen. Nor in my opinion did the threat at Parramatta Local Court on 30 December 2003 occur. I accept the evidence of Mr Reeves on this issue. 201 As I have earlier said, Mr Murchie, who was not required for cross-examination, gave no evidence of knowing that the suggested aggravating conduct occurred, nor of telling the plaintiff about it. Again, as he was the senior officer at Maroubra Police Station overseeing this investigation, I have no doubt that he would have given evidence of the threat and its communication to the plaintiff if it came to his attention. Given the importance these threats had in the plaintiff's case, it is surprising that Mr Murchie was not cross-examined about them. 202 There is some evidence in the cross-examination of Mr Scarcella which the plaintiff relies upon to support his own evidence that Hussein engaged in this form of aggravating conduct and that Mr Scarcella so informed the plaintiff. 203 That evidence discloses that at no time was Mr Scarcella present in court when any threats were made. His own statement (Ex 16, para 16) makes it clear that he did not personally attend at any of the hearings, which were the occasions when, it was suggested, this additional aggravating conduct occurred. His recollection of receiving and passing on information, which he gave in his cross-examination (T493.46), was so vague, in my opinion, as to be unreliable. I would not be disposed to accept, contrary to all of the other material to which I have referred, that he had in fact learnt of and then passed on to the plaintiff any specific suggestion that any threat was made in court by Hussein against the plaintiff. 204 In the result, I am not satisfied that the aggravating conduct of Hussein, being the making of threats about the plaintiff in court during any hearing, ever occurred. I am not satisfied the plaintiff was ever told of such threats. I do not accept the plaintiff's evidence about this subject matter.

[87]

Conversations with Mr Murchie 218 Mr Murchie, a very experienced police officer, was an Acting Inspector and the Duty Officer at Maroubra Police Station on 25 December 2003. He was the officer who received the phone call from the plaintiff on 25 December 2003. He advised the plaintiff to come to the Maroubra Police Station to make a formal report. He provided the plaintiff with the mobile telephone number of the duty officer at Maroubra Police Station who would be available at all times. He was informed by the plaintiff that the plaintiff had a police portable radio and he responded to that information by informing the plaintiff about the relevant communication channel for the local area. He informed the plaintiff that if the plaintiff sought help via the radio he would arrange for police to attend immediately. He also informed the plaintiff that he would arrange for local police to carry out additional car patrols of his house and he would ensure that his home address did not appear in any of the police records. 219 According to his statement (Ex 14, paras 24 and 25), on a number of occasions between 25 December 2003 and the end of January 2004, Mr Murchie had a telephone conversation with the plaintiff. Each telephone conversation was either initiated by Mr Murchie to inform the plaintiff what was happening, or else was a call received by him from the plaintiff inquiring as to what was occurring. Mr Murchie recalls that in at least one of the telephone conversations in that period he asked the plaintiff the following: "How are you going? Just checking to see how you are?". The plaintiff replied "I am fine". 220 Mr Murchie also said in his statement that at no time did the plaintiff ever express to him that he had any concerns for his safety or that of his family, and did not convey to him any anxiety and distress. Senior counsel for the plaintiff did not require Mr Murchie to attend for cross-examination on this evidence. This decision to not require Mr Murchie for cross-examination was announced to the Court after the plaintiff's evidence was concluded, and as appears from the paragraph below, at a time when the plaintiff's contradictory evidence was clear. 221 In cross-examination (T159.43ff), the plaintiff initially denied that Mr Murchie's evidence was correct with respect to what he had told the plaintiff he would either do, or else have done for the plaintiff. On further exploration, it seemed to me that the plaintiff largely agreed with Mr Murchie's account of what was said, but could not remember some parts of it. 222 However, the plaintiff firmly denied that he had not expressed any concerns to Mr Murchie about his or his family's safety. On the contrary, in cross-examination (T162.45) he asserted that he had told Mr Murchie about his anxiety and distress, and that he had expressed concerns about this safety. 223 I am satisfied that I should accept Mr Murchie's evidence, that at no time did the plaintiff ever express to him any concerns for the safety of himself or his family and that when asked, the plaintiff informed Mr Murchie that he was fine. 224 There are a number of reasons for this:

[92]

Conversations with Mr Reeves 226 Mr Reeves remained on duty as the plaintiff's acting supervisor until 4 January 2004. During that period of time, Mr Reeves attended at the Parramatta Local Court when Hussein's matter was heard there on 30 December 2003. Bail was refused by that court. Mr Reeves gave evidence in his statement (Ex 6, para 13) that he communicated that information to the plaintiff with words to the following effect: "Bail was refused. He doesn't know where you live. I have just listened to the family as they left court and they have not made any threats. You don't need to worry." 227 In cross-examination (T164.1-29) the plaintiff denied that he had been told that he had no need to worry. 228 This part of the conversation was challenged in cross-examination. I think that the probabilities are that the version of it given by Mr Reeves is correct. Mr Reeves had travelled to Parramatta Bail Court specifically to do what was possible to have Hussein kept in custody. Mr Reeves was aware of the concern of the plaintiff about his safety. He had been in contact with the plaintiff, according to the plaintiff's oral evidence (T47.13ff), on 25, 26 and 27 December and then on 30 December 2003. Mr Reeves was acting in the position of the plaintiff's immediate superior. He had every reason to observe carefully what happened at court on that day and report back to the plaintiff particularly any material which would have been reassuring. This is what he was doing in the conversation part of which is under challenge. 229 Given that the content was reassuring, Mr Reeves had no reason to withhold it, and every reason to make that statement. 230 I think it most likely that he would have not only provided a summary of the reassuring facts and circumstances to the plaintiff but that he would also have given reassurance to the plaintiff as well. I am satisfied that Mr Reeves' evidence is correct and I accept it. 231 My conclusion is fortified because Mr Reeves also said that, between 25 December 2003 and 3 January 2004, he telephoned the plaintiff on more than one occasion to check on him. In his statement (Ex 6) at para 15, Mr Reeves said this: "During the course of at least one of these telephone conversations I said to him words to the following effect: 'Are you all right? Are things good?' to which Benic replied 'I'm fine." 232 As I have indicated above, the plaintiff agreed that he had a number of conversations with Mr Reeves on the dates recorded by him in his duty book. The duty book does not record any content of the conversations. In his evidence in chief, the plaintiff gave this evidence of these conversations (T47.6): "Q. Can you recall anything you said to him? A. Yes, I expressed my concerns." 233 The plaintiff made no express denial of, or reference to, Mr Reeves' evidence that he had asked the plaintiff about his welfare, and that he had received a positive response. Mr Reeves, although called to give evidence and challenged in cross-examination about the conversation dealing with the events at Parramatta Local Court, was not challenged about the evidence in para 15 of his statement which I have set out above. 234 In those circumstances, I am left with the clear impression that Mr Reeves, behaving diligently as the Acting Commander of the CTCC, was concerned about the plaintiff's welfare. That he would say to the plaintiff that he had no need to worry, a comment being made by way of reassurance, would be the natural and appropriate thing to do. I am satisfied that this is what in fact happened. 235 I do not accept the answer given by the plaintiff in cross-examination, to which I have made reference in paragraph 232 above. It was unconvincing. It was imprecise, was not reflected in contemporaneous documents, particularly the duty book (Ex 3), was lacking in any detail, and was not given in the plaintiff's evidence in chief, either orally or in writing.

[93]

Conversations with Mr Slattery 236 From the time of these events until the plaintiff ceased work as a police officer, Mr Slattery was the plaintiff's immediate supervisor at the CTCC. He was the leader of the Dignitary Protection Unit. His duties included the overall and the day-to-day management of the protection teams. One of those teams for which he was responsible was the team designated for the protection of the Premier of NSW. Although the daily administration of the officers protecting the Premier of NSW was undertaken by the Premier's Department, Mr Slattery was informed of when the plaintiff was absent, whether on leave or for other reasons, and of any need for additional security personnel and measures necessary for the protection of the Premier. 237 Of the officers in the NSW Police Force who would be responsible for the wellbeing of the plaintiff, it was Mr Slattery who had the role in an immediate sense. In so acting, he was the delegate of the Commissioner. 238 When the threat occurred on 25 December 2003, Mr Slattery was on leave. Although on leave, he was telephoned by Mr Reeves and informed of the threat. Upon his return to work on 5 January 2004 he received a briefing from both Mr Reeves and Ms Smith as to what had happened. 239 His evidence is that he telephoned the plaintiff on that day and had a conversation with him to the following effect (Ex 5, para 20): Slattery: "I've just come back to work and have found out what's been going on. Are you okay? Plaintiff: Peter is fine, I'm at work. Slattery: I understand that Hussein has been charged- where is the matter up to? Plaintiff: He is in custody, bail refused. He made further threats while in Court and this is why he was refused bail." 240 In cross-examination (T151.16ff) the plaintiff denied "absolutely" that he had told Mr Slattery that he was fine and at work. He agreed that he may have had a conversation to the effect of what is recorded in Mr Slattery's statement but not about how he was feeling. The plaintiff agreed that he may have from time to time adopted the third person as a manner of speech but denied that he did so on this occasion. He did not give evidence of having used that manner of speech to Mr Slattery, or in his presence, or any other occasion. 241 In paragraph 25 of his statement (Ex 5), Mr Slattery says that he spoke with the plaintiff on a number of occasions in January 2004 over the telephone with the purpose of checking on his welfare. He said that the conversations in January 2004 were generally to this effect: Slattery: "How are you? What is going on? Have you been speaking to the police at Maroubra? Plaintiff: Yeah I am fine and I have been speaking with the police at Maroubra." 242 The plaintiff again denied in cross-examination (T152.47ff) that he had told Mr Slattery, during conversations which occurred in January 2004, that he was fine. Although he took Mr Slattery to these conversations in the course of cross-examination (T311.49-T312.8), senior counsel for the plaintiff did not suggest that Mr Slattery's evidence about them was either incorrect or untrue. I think that this failure to challenge Mr Slattery, in the context in which it occurred, suggests an acceptance by senior counsel for the plaintiff of Mr Slattery's evidence. For this reason, and also because of the matters I refer to below, I accept Mr Slattery's evidence that in his conversations with the plaintiff he was reassured about the plaintiff's well being. 243 The plaintiff gave evidence that, whilst he had spoken to Mr Slattery on a number of occasions during January 2004, what he had said to him was to this effect (T153.12): "That I feared for my safety and that I was stressed, and I informed him of my inability to sleep properly. I just expressed my concerns, my fears for my safety and my family's safety." 244 The communication by the plaintiff to Mr Slattery of concerns and fears of the kind described in his evidence, was, so it seems to me, a matter of the utmost importance to Mr Slattery and I would expect he would:

[113]

COUNSEL: Let us get one thing clear, Ms Smith, I am not disputing that if you became aware of any problems that Mr Benic was suffering that you would have done something more. That is not in issue here. What I am concerned about is exploring - it doesn't matter, I won't make that comment." 262 I was in any event disposed to accept the evidence of Ms Smith for a number of reasons, but principally because her background in establishing, in 1995, the Internal Witness Support Unit, and then in overseeing its operations through to 1997, meant that she was a person who was attuned to and understanding of issues relating to stress, anxiety and the wellbeing of those being supported. She was a person with a demonstrated history of ensuring that care was taken for the welfare of the police officers suffering from stress. 263 However, it seems to me that the concession made by senior counsel for the plaintiff means that I can more confidently accept her evidence, because senior counsel, no doubt acting properly and on instructions, did not seek to challenge, but rather accepted, that Ms Smith was not aware of any specific concerns at all about the plaintiff's wellbeing. 264 It follows that I reject the plaintiff's evidence, to which I have earlier referred at para 256, to the effect that he fully communicated to Ms Smith his own concerns about his safety and wellbeing. 265 Ms Smith did not speak directly to the plaintiff about his welfare after the first three conversations. However she gave evidence that (Ex 15, para 17), as part of normal operational duties, she would speak to Mr Slattery. She says that she recalls during January 2004 asking about the plaintiff's welfare and being told by Mr Slattery the following: "I have spoken to Benic a number of times to check on his welfare. He is fine." 266 I see no reason to reject this evidence. It is corroborated by the contemporaneous behaviour of Ms Smith about which there is no challenge. As well, I have already accepted Mr Slattery's evidence that this was the effect of his communications with the plaintiff. It is logical that he would report accurately to his superior officer. I accept that he did so.

[114]

Conversations with Officers of the Premier's Department 267 As mentioned earlier, the plaintiff's day-to-day work took place at the Premier's Department and at the Premier's Office, rather than at a police station or the offices of the CTCC. His work necessitated close liaison with senior officers of both the Premier's Department and also the Premier's Office. 268 It appears from Ex 3, the duty book, that the plaintiff spoke to Mr Col Wedderburn, the Premier's Chief of Staff, on 27 and 30 December 2003. He attempted to make contact on 28 December 2003 but was unsuccessful. There is no evidence as to what the contents of these conversations were. The only clue is the entry of 30 December which records that Mr Wedderburn "… stated not to worry about incident". 269 If the plaintiff was concerned for his safety and welfare, and was having little sleep or nightmares and other consequences from Hussein's threat, Mr Wedderburn was an obvious person to whom the plaintiff could have spoken. There is no evidence that he did so after 30 December 2003. The absence of such evidence tends to tell against the plaintiff having any significant ongoing concerns after the initial few days of December 2003. It does not support the existence of a long term reaction to the threat. 270 The plaintiff also records that he spoke to Mr Walt Secord, who was a member of the Premier's personal staff responsible for dealing with the media, on 26, 27, 28 and 30 December 2003. There is no evidence of, or any note recording, any further conversation with Mr Secord. 271 Again, the absence of any ongoing note does nothing to corroborate the plaintiff's claims that he was having long term effects from Hussein's threat, which he says he was regularly revealing to his supervisors or those with whom he worked. 272 Since the plaintiff was on duty during January and February 2004, he would have had an opportunity on frequent occasions to raise any concerns, either with Mr Wedderburn or Mr Secord. Neither Mr Wedderburn nor Mr Secord was called to give evidence of any complaint being made to them, nor of any expression of concern by the plaintiff with respect to his safety and well being. The plaintiff gave no oral evidence of any such conversations whether during January 2004, February 2004, or any other later date. 273 In those circumstances, I infer that there were no such conversations. I also infer that whatever the plaintiff's feelings were, whether about himself, or the apparent complete lack of response of his superior officers to his many expressions of concern, they were not of sufficient importance or concern to him to raise them with Mr Wedderburn, Mr Secord or any other officer of the Premier's Department or the Premier's Office.

[116]

Mr Kirgiz 274 The plaintiff was friendly with Mr Kirgiz. They had met in 1997 and had become good friends. Mr Kirgiz saw the plaintiff regularly between 2003 and 2005. The often went running together. 275 Mr Kirgiz said that he observed that the plaintiff was quite concerned about the threat after he received it. He said (T443.36): "We would talk about it regularly, especially soon after the threat was made, and, yes, I could see that he was very concerned". 276 Exhibit 3, the duty book, records regular interaction between Mr Kirgiz and the plaintiff on 26, 27 and 31 December 2003, and on a number of occasions in the first part of January 2004 277 In December 2003, and early January 2004, Mr Kirgiz offered to sleep over at the plaintiff's house on a number of occasions. The offers were declined by the plaintiff. When asked about the reason for that, Mr Kirgiz said (T443.49): Q. "Did he tell you the reason he declined, that he did not think it was fair on you because you were working a full shift with the water police? A. That was one of the reasons and I guess - well, that's the reason he gave but I thought there might be more to it." 278 Mr Kirgiz was not asked to expand on this last answer. But he was pressed as to his observations of the plaintiff in the period after the threat. He said that (T444.9): "A. He joked around a little bit less than what he used to, yes. And when we would have conversations, at times he would sort of lapse into moments of inattention and I would have to repeat things to him. We spoke about the incident a lot, so I knew it affected him quite a bit. Q. He expressed to you that he was in real fear of Mr Hussein? A. He never said [so] in as many words, but I could tell he was genuinely worried." 279 Mr Kirgiz, also at the plaintiff's request, made inquiries of a clinical psychologist about Hussein's possible behaviour and his "psychological profile". 280 It is clear from the evidence that Mr Kirgiz, although he knew the plaintiff well, did not draw any matter of concern about the plaintiff's condition to any superior officer. Since Mr Kirgiz had previously served in the CTCC, I have no reason to doubt that he knew who the relevant officer was to speak to about any concerns which he may have had about the plaintiff's wellbeing or any need for assistance. 281 As well, I would have little doubt that, as part of their meetings and conversations over the period, Mr Kirgiz would have inquired of the plaintiff how he was feeling or how he was getting along. Whatever answers he received did not lead to any specific evidence being adduced before me, in particular, there was no evidence of the expression of any concern by Mr Kirgiz' about the plaintiff's health and well being at the relevant time, nor any evidence that Mr Kirgiz took the matter any further. 282 From this I conclude that if the symptoms were, at that time, those now complained of by the plaintiff, he concealed them from Mr Kirgiz and did so reasonably successfully. Another available conclusion is that after the initial period of symptoms which appeared to Mr Kirgiz to be at a relatively low level and not requiring reporting, the plaintiff made no further complaint to Mr Kirgiz, and Mr Kirgiz could detect no further difficulties with the plaintiff. 283 This second conclusion is the one which on the probabilities, I accept, as being the most likely.

[117]

Mr Magdapoulos 284 Chief Inspector Magdapoulos, who is now retired, gave evidence (Ex NN) that by 2003 he had known the plaintiff for about 17 years. He said that whilst the plaintiff was working for the Premier of NSW he saw him from time to time. He said that when the plaintiff told him about the threat which he had received (at para 7ff): "… he was nervy, tense and on edge. It was also the first time that I have known him to look frightened. … I can remember after the threats made by Hussein, Peter's general demeanour changed completely. He became obsessed by Hussein and when I saw him that's all he wanted to talk about. When we had a coffee he would insist on sitting facing towards the street. He was constantly looking around. If a car pulled up, he would turn to check out the occupants. He was on edge all the time, which in turn made me feel ill at ease. I would look at Peter when we met up and there were times when he looked tired and drained. He would tell me he hadn't been sleeping well … I noticed too that he had lost some weight, which added to his drawn appearance." 285 Mr Magdapoulos was not required for cross-examination. 286 This evidence, which is really in summary form, provides some general corroboration for evidence about the plaintiff's behaviour, which fell within the description "hypervigilant" applied by the expert psychiatrists. The evidence of Mr Magdapoulos is, however, not precise about the time at which the observations were made, which makes it difficult to know whether he is referring to events within the first four weeks after the first threat was received or else before or after the plaintiff's second meeting with Hussein in April 2006, or at some other time. 287 One question which this evidence raises, which is not answered, is why Mr Magdapoulos, who had formerly served in that part of the Special Branch which was the predecessor of the CTCC, did not draw his observations of the plaintiff's demeanour and behaviour to the attention of the senior officers in the CTCC. In the absence of any explanation of this being advanced in the evidence, I would infer that Mr Magdapoulos did not have any concern for either the capacity of the plaintiff to do his job, or for the plaintiff's well being, which was sufficient for him to intervene in the way I have raised. In other words, he did not himself have any sense that the plaintiff needed to be referred for medical, psychological or psychiatric care, because of his reaction to the threats made by Hussein. 288 The evidence of Mr Magdapoulos also does not suggest that he gave any advice himself to the plaintiff encouraging the plaintiff to seek expert help. Again, in the absence of any further explanation being forthcoming, I would infer that he was not sufficiently concerned by what he was seeing to cause him to advise the plaintiff to seek expert help. 289 I do not intend that these remarks be taken as any criticism of Mr Magdapoulos. Rather, they suggest only that his lack of conduct to positively seek help for the plaintiff, or else advise the plaintiff to seek help, provides a reasonable measure of his assessment of how serious the plaintiff's condition was. 290 Whilst I accept the evidence of the observations made by Mr Magdapoulos, given the matters to which I have referred above, the evidence is of little weight, and I do not regard it as satisfactory corroboration of all, or even most of, what the plaintiff says.

[118]

Mr Laggas 291 Mr John Laggas also gave evidence by statement (Ex PP). He said that he first met the plaintiff in 1996 and developed a close relationship of friendship with him. He also engaged in undertaking real estate developments with the plaintiff. He recounted that he had been informed by the plaintiff of the threats. He then said this (para 7ff): "Peter seemed very tense and uneasy while talking to me but at the same time he seemed very angry that by simply doing his job, he and members of his family were placed in potential personal danger. It would have been from late 2004 that I began to notice a difference in Peter and his general demeanour. It was at this time that Hassan Hussein was granted conditional bail. From then on Peter was on edge and nervy every time I saw him. … I can remember when Peter and I had discussions at the Kogarah site he would insist on standing, facing the street so he could see any passers by. Also when we went out, even for a coffee, he would insist on sitting where he would face oncoming traffic and passers by. Previously this had never been an issue for him. Peter would talk about Hassan Hussein almost every day I saw him. I can remember one day we were putting up some cornices and he said to me something like 'If Hussein or any member of his family comes anywhere near my family I will have no option other than to kill him'." 292 I note that Mr Laggas puts the date of his observations as being in late 2004. I think that this is a mistake and he was referring to a period in late 2003 to early 2004, up to when Hussein was released from custody. That is because it is this event with which Mr Laggas's associate the plaintiff's behaviour. 293 Mr Laggas went on to recount that he observed that the plaintiff had become short tempered with his parents, with some of the contractors working on site, and he observed that the plaintiff appeared to be having difficulty sleeping. 294 Mr Laggas does not give any evidence that he advised the plaintiff to seek any expert help for his concerns. Nevertheless, his evidence, which I accept, provides corroboration for some of the evidence which the plaintiff gave about his concerns for his safety and some components of his "hypervigilant" behaviour. That corroboration I am satisfied largely relates to the first four weeks or so after Hussein first made his threat.

[119]

The Honourable Bob Carr 295 The former Premier, the Honourable Bob Carr, gave evidence by statement (Ex QQ). Mr Carr does not give any evidence about his observations of the plaintiff immediately after the threats were made, and records his observations of a change in the plaintiff's condition only after 6 August 2005 when he, Mr Carr, retired from being Premier of NSW. In that period after his retirement, in the latter part of 2005, Mr Carr records that he noticed that the plaintiff was subject to despondency and distraction and there were often periods when his spirits appeared quite low. He said (para 13): "He still maintained an extremely professional persona and did not discuss his personal fears or concerns with me. I would say despite his low mood I felt safe and secure at all times that Peter was with me." 296 I accept the evidence of Mr Carr. However, I do not regard it as relevantly corroborating any of the complaints now being made by the plaintiff. 297 The defendant's submissions pointed to a number of reasons why the plaintiff may have expressed despondency and low spirits in the latter part of 2005 and into the early part of 2006. The first and most obvious one was the change which occurred when Mr Carr ceased to be Premier of NSW in August 2005, and the plaintiff was faced with the need to make a series of decisions about his choice of work positions. The second was that the nature of his job significantly changed as he continued to provide personal protection for Mr Carr after he ceased being Premier. The third was that he was physically unwell during September and October 2006 when he consulted Dr. J. Proctor at Cremorne, with the result that in late 2005 and into 2006, he took himself off work. 298 Indeed, the evidence provides support for the defendant's submissions that, as the plaintiff was able to carry out his duties for the Premier at the highest level of functioning, to the complete satisfaction of the Premier, it is unlikely that he was then suffering in the way he now describes.

[120]

Ms Jackson 299 Ms Avril Jackson, the plaintiff's partner and the mother of his two children gave evidence. She said that she first met the plaintiff in February 2004 in circumstances where he attended with the Premier of NSW to visit the project upon which she was working. The plaintiff said to her that he recognised her from the gym and introduced himself. 300 She said (Ex GG, para 7) that their friendship developed over time and in April 2004 they commenced going out together "…as boyfriend and girlfriend". She said that she found that the plaintiff was "interesting, friendly and approachable with a good memory". She said that she noticed he always appeared to be on his guard and looking around. Not long after they commenced going out together the plaintiff informed her of the threat which had been made against him by Hussein. She said that this knowledge did not deter her but: "… it explained his previous behaviour at the gym and when we had gone for coffee of always wanting to sit in the corner and looking around constantly". 301 She became aware that he was carrying his police pistol with him at all times. 302 She then gave evidence about a routine which the plaintiff followed at a time which must have been after April 2004, but quite when is not at all clear. She said this, which was not challenged: "The first time we went back to his home I remember that he did not drive straight into the carport but rather he drove around the block and then drove into the carport where he made me sit in the car for some minutes before we got out during which time he took out his pistol and when we got out he went ahead of me telling me to follow behind. When we got to the front door I noticed that he took a piece of paper from the edge of the door which was wedged between the front door and the door frame and once he did this he then opened the door and checked the alarm. Once we were inside the house he went through the house checking the rooms before we did anything else. When we went to bed almost invariably I had to go first and he would turn out all the other lights and it was sometime before he came to the bedroom. When he came into the bedroom he placed his pistol under the pillow and put a torch near the bed along with a police radio. Then he took a large knife out of the bedside table and put it on top of the table next to where he slept. The plaintiff continued with this ritual every time I stayed overnight with him and after we commenced living together in 2005 it did not change and it has not changed up until the present day." 303 Ms Jackson gave her evidence in a straightforward and undemonstrative way. Senior counsel for the State did not cross-examine her, nor did he submit that I should not accept her evidence. She provides corroboration for, and additional evidence about, the nature of the plaintiff's behaviour largely from 2005 onwards, after she and the plaintiff commenced cohabitating. 304 Her evidence also indicates that, notwithstanding his concerns for his own safety, the plaintiff was able to develop a relationship with Ms Jackson, to the extent that they now live together and have two children. As well, her evidence indicates that, with the plaintiff, she has been able to travel overseas on at least three occasions, once to Hawaii and twice to Europe. 305 It is her observation that the plaintiff is more relaxed when travelling overseas than he is whilst at home. 306 She described the plaintiff as a good father, and did not suggest that she had any concerns about his interaction with his children. 307 She gave no evidence of having any concern about the plaintiff's mental wellbeing, which led her to take any action herself, or else to advise the plaintiff to seek medical or psychiatric help, or return to his GP, Dr Placanica, for assistance.

[121]

Dr Placanica 308 During the initial period of about four weeks after the threat and prior to Hussein's release from custody, the plaintiff attended at and consulted with his general practitioner, Dr Placanica. In his report (Ex X) of 13 June 2008, Dr Placanica records that on 23 January 2004 he was consulted by the plaintiff. He notes his consultation in these terms: "Alleged he had been troubled by a 'stalker' he confronted at work in the course of his police duties. Now anxious and hypervigilant, unable to sleep at night. The stalker made verbal threats stating that he would shoot Peter three times in the head and then slit his throat. Diagnosed with anxiety and insomnia and prescribed Stilnox (sleeping tab) one at night for short term use." 309 The typed extract of his handwritten notes, which is to be found in Ex 4, records contemporaneous notes to the same effect as the contents of this report Dr Placanica was not challenged about the accuracy of either Ex X or Ex 4. 310 The plaintiff consulted Dr Placanica on four further occasions in 2004. He did not on any of those occasions make any complaint about, nor describe any symptoms, consistent with those which he had described in January 2004. He did not seek any further prescription medication to assist with his sleep, nor did he seek any medication or other treatment referable to any mental health condition such as anxiety, depression, stress or the like. He was not on those occasions prescribed any such medication. 311 As I have earlier said, the plaintiff's duty book continues through until 27 February 2004. The plaintiff then commenced a new duty book. There is no further note in the duty book (Ex 3) after 23 January 2004, when the plaintiff saw Dr Placanica regarding his difficulty sleeping as a consequence of the threat he received. On Friday, 20 February 2004 there is a record of difficulty sleeping but it seems to me to directly relate to a back pain problem which the plaintiff had as a result of an injury which he sustained on Thursday, 12 February 2004, and for which he sought treatment from a chiropractor. 312 As I have said earlier, for the balance of 2004, the plaintiff saw Dr Placanica on four occasions, none of which related to any difficulty sleeping, or any other somatic causes. Dr Placanica was satisfied that on each occasion the plaintiff consulted with him that there was a physical cause giving rise to the pain and symptoms. 313 In 2005, the plaintiff consulted with Dr Placanica on four occasions, each of which related to a particular physical problem that he was suffering. None of those occasions related to any issue concerned with his mental state, or any issue relating to anxiety, inability to sleep, or work-related stress. 314 On seven occasions up until 13 April 2006, in the course of the first part of the 2006 year, the plaintiff again consulted with Dr Placanica about various physical problems. Each of those problems was clearly associated with an identified physical problem and none was somatic in origin. 315 The effect of the evidence of Dr Placanica and his contemporaneous clinical notes is that on no occasion after 23 January 2004 and through to 31 March 2006 did the plaintiff make any complaint or give any history worthy of note by Dr Placanica relating to his inability to sleep, any condition of anxiety or depression and any sense of stress related to the threat from Hussein. No medication was prescribed for him by Dr Placanica throughout this period.

[122]

Records in the Duty Book 316 According to his duty book (Ex 3), the plaintiff resumed duty on 3 January 2004. He then attended to his ordinary duties on 4 January 2004 as required. With the exception of an injury which he sustained to his back on 12 February 2004, for which he required chiropractic treatment, according to his duty book he was able to carry out his duties without interruption or difficulty. 317 In Ex 3, the last note which relates to Hussein and the threats he delivered appears on 23 January 2004. The note records the fact of, and details about, the visit which the plaintiff made to Dr Placanica's surgery, including his receipt of a prescription for sleeping medication. It also records what the plaintiff's sister told him regarding information she was receiving within the Croatian community about what had happened to the plaintiff. 318 Of significance, there is no note of any fact or circumstance relating to the sentencing of Hussein and the making of the final apprehended violence order on 18 February 2004 at the Waverley Local Court. Although there is a reference to the plaintiff being unable to sleep on 20 February 2004, as I have said I am satisfied that this related only to a back injury which the plaintiff had sustained on Thursday, 12 February 2004, and which had no connection with Hussein. 319 I conclude from the lack of entries in the duty book that, after the visit to Dr Placanica on 23 January 2004 and up to 18 February 2004, the plaintiff did not suffer from any symptom which was relevant, or caused him any disability and which related to the threats he received from Hussein. I infer, from the fact that the duty books in which the plaintiff made entries after 18 February 2004 were not tendered, that there is no corroboration from that source of the history which the plaintiff has given to the Court. 320 The other matter of relevance which arises from a reading of the duty book is that it appears that the concerns and symptoms of the plaintiff, including difficulty with sleeping for lengthy periods or through the night, occurred progressively, seemingly approaching a high point on 22 January 2004 when the plaintiff for the first time attempts, unsuccessfully, to see Dr Placanica. It was on this day that Hussein was released from custody. The plaintiff attends Dr Placanica on the following day and receives a prescription for Stilnox, as I have earlier recorded. Thereafter, the recording of concerns and symptoms evaporates. This picture is consistent with the plaintiff suffering for a short period of time with symptoms which did not persist after his visit to Dr Placanica and after the consumption of the medication with which he was provided by way of treatment.

[123]

Evidence of the plaintiff's other reactions (and lack of reactions) to the initial threat from Hussein 321 As indicated earlier, the plaintiff had a reaction to the threats which Hussein made on 25 December 2003. He recorded, apparently contemporaneously, his feelings in his duty book, together with his own reactions. On 27 December 2003, the plaintiff spoke with Mr Kirgiz to ask him to make an inquiry of a relative, who was a clinical psychologist at the Cumberland Psychiatric Hospital, with respect to Hussein. It is to be recalled that at this point in time, Hussein was in custody and bail had been refused. 322 In his evidence in chief, the plaintiff said that Mr Kirgiz reverted to him about his friend the clinical psychologist. According to that evidence he said this to the plaintiff (T29.36): "Senior Constable Kirgiz informed me that his relative informed him that Hussein was in a position to carry out the threat to kill me. He was also violent. He had a gambling habit, and that he was in financial debt." 323 In further examination in chief, it became apparent that the clinical psychologist to whom Mr Kirgiz had spoken had never met or treated Hussein but was merely attempting to provide something which the plaintiff understood to be "psychological profiling", and which was not based on any personal knowledge of, or interview with, Hussein. 324 Another reaction of the plaintiff to the threat was that, in late December 2003 or early January 2004, the plaintiff telephoned Mr Scarcella and said that he "needed to know what Hussein's family attitude was and whether they thought that Hussein would carry out his threat to kill me". 325 Mr Scarcella apparently contacted a member of Hussein's family and reported back to the plaintiff information which he had received from the family which was in this form (Ex E, para 24): "Hussein had been kicked out of the house in the past …. he has had mental problems from the age of six, ,,, he had a gambling problem, was $40,000 in debt and is aggressive by nature". 326 The plaintiff also recorded his reactions in his duty book. They included the following:

[134]

(k) Friday, 23 January 2004: The plaintiff in his duty book records his visit to Dr Placanica in these terms: "Informed Dr Placanica unable to sleep. He said 'clearly you are concerned and worried'. He said sleeping pills may not be good cause will crash out and maybe not hear anything …." (l) The duty book records the plaintiff receiving a prescription for a sleeping tablet. 327 Although not proved to be a reaction to the initial threat as the plaintiff claimed, I do note that in September and October 2005, the plaintiff consulted Dr J.D. Proctor, a general practitioner of Cremorne, complaining, according to the plaintiff's statement (Ex F, para 43) of "being tired, having breathing problems, nausea and a feeling of being stressed". He apparently was referred for blood tests and an x-ray. The blood tests were clear and the plaintiff did not have the recommended x-ray. No report from Dr Proctor was in evidence and it is unclear to me what the cause of the symptoms was which led to the plaintiff attending at Dr Proctor's rooms. There is no suggestion that Dr Proctor prescribed any medication for the plaintiff, or provided or recommended any other form of treatment. In the absence of any report from Dr Proctor, or the proffering of any reason why getting a report was not possible, I infer that Dr Proctor's evidence would not have assisted the plaintiff's case, in particular, that this was an episode of illness which was related to PTSD associated with Hussein's threat. 328 The plaintiff also gave evidence (Ex F, para 45) that in September 2005 he found that he had commenced grinding his teeth, and that he attended and obtained a night mouth splint from the HCF Dental Clinic. The plaintiff's partner, Ms Jackson, in her statement (Ex GG, para 16) noted that the plaintiff's grinding of teeth had been going on for some time before he went and obtained the night splint. She does not give any estimate of that period of time. 329 The plaintiff gave evidence that ever since the threats were made he has had trouble sleeping on each night, unless he has had medication. However, there is no record in Ex 4 (the notes of his GP, Dr Placanica) that the plaintiff at any time up to April 2006 sought any medication to assist him with sleeping except on 23 January 2004. There is no evidence that the plaintiff attended at any other general practitioner's surgery or else attended at any medical centre, and obtained a prescription for medication to assist him to sleep. 330 It is convenient to note as well, what reactions the plaintiff did not have. The plaintiff gave evidence that he had not asked for the provision of any additional security, or other enhanced security provision. In particular, he confirmed in his evidence in chief that:

[139]

The Medical Evidence 333 It is convenient, whilst dealing with the plaintiff's reactions to the initial threat, to examine the evidence of the medical and psychiatric experts to see if any light is cast upon the various factual matters to which I have referred. 334 It will be necessary to return and deal with this expert evidence more fully in due course. 335 The medical evidence in this case consisted of the notes and reports of Dr Placanica together with his oral evidence, the expert evidence of Dr Jonathon Phillips, a consultant psychiatrist, of Dr Lisa Brown, a consultant psychiatrist, and of Dr Keith Mayne, a psychiatrist who had been involved in treating the plaintiff. 336 The General Practitioner: Dr Placanica was called to give evidence orally. He impressed me as a careful and caring general practitioner who had a long standing clinical relationship with the plaintiff which commenced well prior to the events of December 2003. He impressed me as a person who had developed a good clinical and therapeutic relationship with the plaintiff. Dr Placanica's view was that the plaintiff was not a person who resisted coming to see him when he had a problem. I accept this view. 337 Dr Placanica gave evidence that one problem with which he was regularly confronted in the course of his general practice (which has now subsisted for over 30 years) was that patients would come to see him with apparent physical problems but for which there was in truth some underlying psychological or psychiatric disorder such as anxiety, depression or the like. He said that he was well familiar with the treatment of anxiety and depression, which was an integral part of general practice. All of that evidence seems to me to accord with common sense and I have no difficulty in accepting it. 338 Dr Placanica agreed that, between 24 January 2004 and 13 April 2006, the plaintiff did not present to him with any symptom of anxiety or depression but rather had presented with an array of symptoms for which there was a wholly sufficient physical basis. Dr Placanica rejected any suggestion that at the time of any consultation he had not addressed adequately the existence of any mental health issue. Further re-examination did not result, as I see it, in any different substantive conclusion. 339 I am satisfied that I should accept the evidence of Dr Placanica. As I have said earlier, he was a highly experienced general practitioner. He had reasonable notes of his consultations, he knew the plaintiff well, and was a person with whom the plaintiff had no difficulty communicating. In the manner in which he gave evidence, I thought he was careful and considered. In my opinion, general practitioners are well capable, and Dr Placanica in particular was well capable, of diagnosing underlying psychological or psychiatric causes of presenting symptoms. If the plaintiff had been suffering from an observable or detectable somatic cause of the symptoms with which he attended Dr Placanica's rooms in 2004 (after 23 January), through to 2006 (prior to 13 April), then Dr Placanica would have detected it, made a note about it and either treated it himself, or else referred the plaintiff for treatment. 340 The Expert Psychiatrists: The evidence of the three psychiatrists was taken concurrently. The commencement point of that concurrent evidence was the production of a joint expert psychiatric report by Dr Phillips and Dr Brown. Because Dr Mayne had not been invited to participate in the expert conference underlying that joint report, when he commenced his evidence I asked whether there was anything in that report with which he disagreed. He said that there were no matters of significant disagreement that he had with the agreed opinions which Dr Phillips and Brown had jointly expressed. This process has meant that a good deal of the difference of opinion has been reduced. 341 I will attempt to encapsulate the agreed portions of the psychiatrists' evidence. 342 The psychiatrists agreed that the type of threat which was made to the plaintiff in December 2003 would be expected to give rise to some anxiety symptoms in most individuals. There was disagreement between the psychiatrists as to whether in the period immediately after the initial threat the plaintiff had developed Post Traumatic Stress Disorder. I will need to return and consider this issue. 343 The psychiatrists were agreed that after the coincidental meeting between the plaintiff and Hussein on 8 April 2006 at the Maroubra Fruit Market (which I describe in detail later in this judgement), it would be appropriate to diagnose the plaintiff as suffering from Post Traumatic Stress Disorder with a co-morbid condition of depression and anxiety symptoms. 344 All psychiatrists were agreed that the plaintiff's personality type was an important feature in understanding the plaintiff's behaviour. Dr Mayne described his personality type in this way (T371.38): "His personal characteristics are a high degree of obsessionality, conscientiousness and self-discipline …". 345 Dr Phillips (T372.23) described his personality in this way: "… the personality that he came into the world with and which was probably further developed over a period of years … as having significant obsessional traits in his personality. Those traits, of course, are commonly noted in people who are highly successful. He was highly successful in his police career. It is also well known by our discipline that people with obsessional personalities commonly will push on as best they can with all aspects of their life and try and convince others that there is nothing wrong and, indeed, try and convince themselves that there is nothing wrong". 346 Dr Brown was asked to express a view on this subject which she did at T372.44. She said: "I would agree with my colleagues unreservedly about the qualities they have delineated in Mr Benic's personality style. I would also agree that those very qualities may have allowed him to function better than someone else with anxiety symptoms … … To me the confusion comes in the area of severity of symptoms. I believe that the symptoms were milder during this period of time. They did not impair functioning as a result of Mr Benic's obsessional personality traits probably protected him during this time from actually developing a worse psychological outcome". 347 An adjunct to the issue of the plaintiff's personality was the issue relating to what lengths he may go to conceal his symptoms. 348 When being asked about the ability of general practitioners to detect psychological or psychiatric symptoms, Dr Phillips volunteered this (at T375.17): "The only comment I would make is that the highly obsessional person, such as Mr Benic, will quite commonly truncate and rather hide the psychological issues and present with whatever is the immediate problem and won't … - does not want to show any psychological weakness. For some reason, which I don't understand, psychological weakness still seems to be worse than a physical weakness." 349 I took up that issue with Dr Phillips in the following way (at T375.26): "His Honour: … Accepting what you have said Dr Phillips, you are saying, as I read it, that that can sometimes make it difficult for a GP to detect that there is an underlying psychological condition, that sort of denial and that sort of behaviour? Phillips: Yes, I believe so. His Honour: It would make it next to impossible wouldn't it, for a non-medically or psychologically trained person to detect the existence of underlying psychological symptoms? Phillips: I think it would fair to say that you may get highly psychological, but untrained people in the community, who do that, have that sense to pick it up as a generality. His Honour: The ordinary person in the community is not going to detect that Mr Benic, as an example, is in fact psychologically ill, distressed, in that sort of circumstance? Phillips: Given his personality, I think Mr Benic could have fooled - if I could use that word - most of the population. I think in terms of expertise and bring out the psychological, the clinical psychologist and the consultant psychiatrist probably has an advantage by training …". 350 A little later Dr Brown returned to this subject and said (at T377.20): "I would like to comment on Dr Phillips' view point. I concur with him that Mr Benic would have been able to fool the average person about his psychological complaints, but I don't believe that he did or would have chosen to do so with his general practitioner. In fact, the evidence, as I understand it, is that he presented not long after the threat and he complained of psychological symptoms, he didn't deny them, he asked for some help." 351 As I have earlier indicated, I do not accept Dr Phillip's view that General Practitioners as a group, and Dr Placanica in particular, are unable to detect the existence of any psychological symptoms in a patient such as the plaintiff. I accept that a specialist practitioner may be able to do so with greater precision and more speedily, particularly when such consultation is often after a referral from a primary practitioner, such as a general practitioner. 352 Dr Mayne did not ultimately disagree with the proposition that the plaintiff was capable of concealing his feelings. 353 This review of aspects of the medical evidence assists in providing some rational explanations for what occurred. In particular, the agreement of all the psychiatrists that features of the plaintiff's personality were such that he would "truncate and hide" his psychological problems, or he would tend to "convince others that there is nothing wrong", point strongly to the high likelihood that he did not make any complaints to his superior officers and that, when asked by them, he denied any psychological problems. 354 This evidence adds additional support for the various findings which I have made about the acceptance of evidence as to whether or not the plaintiff made complaints to his superiors. The Plaintiff's Real Estate Dealings 355 The plaintiff had a history of engaging in the purchase and sale of real estate. Commonly, but not universally, the plaintiff would purchase a property either alone or in partnership with his parents or Mr Laggas, and then undertake renovations and alterations to the property. On some occasions the property was subdivided and two separate dwellings were built. On other occasions dual occupancies were created without a sub-division occurring. 356 The typical modus operandi of the plaintiff was that he would attend at the project site during the seven days per fortnight when he was not on duty. It is to be remembered that the plaintiff essentially worked seven days on and seven days off whilst providing close protection for the Premier of NSW. During the time he was on the real estate project site he would engage in undertaking construction labouring work, he would attend to dealing with contractors who were to be employed to undertake work on the site, attend to obtaining all of the necessary planning approvals and then arrange for the properties to be marketed and sold. 357 At the same time as this was being undertaken, it was necessary for the plaintiff to deal with financiers in aspects relating to the purchase and renovations of the properties, and to the financing of the project. 358 As well, from time to time the plaintiff retained ownership of the properties and they were rented out. The plaintiff made all of the relevant arrangements with respect to the rental of the properties including maintenance of the property and collection of the rental. 359 The projects upon which the plaintiff engaged seemed to have commenced in July 1984 with the purchase of a property at Monterey. From that time up until late 2003 the plaintiff had purchased and disposed of four properties by way of sale or transfer. The precise details of these purchases and transfers can be found in Ex A in the proceedings. In light of the Court's privacy policy, I do not propose to set out the title details and addresses of each of these properties in the judgment. 360 By late 2003, in addition to those properties which the plaintiff had purchased and sold in circumstances of the kind I have described above, the plaintiff also, in addition to his own home at South Coogee, owned five further properties. Four of those were leased, and one at Sans Souci was being redeveloped from a single property into two separate dwellings. Another, a property at Kogarah, was being redeveloped in partnership with Mr Laggas. Although it was being rented as at December 2003, in 2004 redevelopment of the site was undertaken and successfully completed. The property was then retained and ultimately sold (at least the plaintiff's share of it) in July 2008. 361 According to Ex AA, by late 2003 the plaintiff's position so far as real estate was concerned was that he had a little under $2.6M in mortgage loans referrable to the properties which he owned, and that he was receiving annual rents of about $133,000. His total annual loan repayments as at that time was in the order of $155,000 but he had savings on hand of about $300,000 which he was using to ensure that he could repay the loans. 362 The precise capital position of the values of these properties was not the subject of any evidence, except that the plaintiff said that the capital value of the properties well exceeded the mortgage sum. 363 The detail in the plaintiff's joint chronology (Ex A), suggests that the capital value of the properties was probably in excess of $4M. The precise value does not need to be determined. What is clear is that the plaintiff's property portfolio and dealings were extensive, time consuming and quite sophisticated. 364 In the period between December 2003 and 8 April 2006, the plaintiff did not sell any of the properties but continued to oversee the development of them, and the administration and management of the properties which were rented. 365 There is no evidence that the plaintiff was adversely affected in any significant way in undertaking these projects. As I have recorded earlier, Mr Laggas recounts some difficulties which he observed with the plaintiff with respect to the property at Kogarah in which he was in partnership with the plaintiff. 366 However, there is no evidence otherwise with respect to the other portions of the plaintiff's property portfolio which gives rise to any suggestion of any inability on his part, or any difficulty, with respect to the ongoing management of those properties during this period, and to the conduct of any transactions and dealings.

[153]

The knowledge of NSW Police Force about Post Traumatic Stress Disorder resulting from a threat of violence 369 It can be and was readily accepted by the NSW Police Force that police officers by the very nature of their work may be subjected to threats of violence. By at least June 2002, if not earlier, the NSW Police Force had introduced and publicised a document (Ex H) which was entitled "Threats Against NSW Police Employees". The document (at p 4) defines a threat as including: "a threat against a member of the NSW Police, whether sworn or unsworn, their spouse and/or children or other immediate family, and includes former members, which has eventuated as a direct result of that member's duty with the NSW Police". 370 The document is described as a NSW Police Policy. It provides for the establishment of a Threats Review Panel which is to be convened on an as needs basis. 371 Relevantly, in the circumstances of this case, the policy provides that the protective security group is responsible for the administration and review of the policy and also responsible for providing advice to police generally in relation to the policy. The protective security group was a part of the CTCC of which the plaintiff was a member. 372 The policy, which did not come to the attention of the plaintiff, according to his evidence, until some years after the first threat made by Hussein, requires that specific people undertake specific actions once a threat has been notified. 373 The starting point of those actions is the obvious necessity for a member of the NSW Police Force who receives the threat to report it at the first opportunity to his or her commander or supervisor. 374 There is no doubt that in this case that is what the plaintiff did. 375 However, the contents of this policy do not directly, in terms, address the risk of harm to the plaintiff which is at the core of these proceedings. That risk of harm is that the plaintiff could develop a discrete psychiatric illness, Post Traumatic Stress Disorder, as a result of a lack of early intervention to address that psychological condition which might be foreseeable as a consequence of the receipt of a threat. 376 At p 25 of the NSW Police Policy, commanders, managers and supervisors are informed that: "The welfare of a threatened member is of paramount importance. Commanders, managers and supervisors should take appropriate steps to support the threatened member from the time they are notified of the threat … In particular, some members and their families may experience concern over their safety or that of their family. Commanders should consider referring a threatened member to the Police Psychology Section, Health Services Directorate, Human Resource Services, if that member is experiencing problems over a threat received." 377 The readers of the policy are also reminded of the existence of the NSW Police Employee Assistance Program, and the availability of short term counselling assistance. 378 Whilst there is not a clear acknowledgement that psychiatric harm can eventuate from the receipt by a police officer of a threat, I am satisfied that the extract to which I have just referred must have been based on such a premise, because of the advice proffered about referring a threatened officer for professional help. 379 There was other evidence from which I would be entitled to conclude that the NSW Police Force, and the Commissioner, were aware that a serious threat of violence or death made to a police officer could result in that officer developing in a psychiatric illness, including PTSD. 380 On 30 September 1992, the research report entitled "Physical Risks in Policing: Research Report" was provided to the NSW Police Force by its own Task Force Alpha. That report, which was no. 5, became Ex LL in the proceedings. Task Force Alpha was established during February 1992 to analyse the NSW Police Force's management of violence related hazards operating within the police environment. 381 The report was not known to Ms Smith, the Commander of CTCC, although many of the concepts which it discussed were familiar to her. 382 The plaintiff relied upon the report and its contents as indicating that for a period of time well before the threat was made to him in December 2003, the NSW Police Force was aware of the fact that police officers, who received threats of the kind that the plaintiff did, may be subjected to stress and other influences which may cause psychiatric harm. 383 The research report stated at p 23 that Jan Westerink, who was a psychologist, then part of the NSW Police Force, had examined the stress and coping mechanisms in young police officers in NSW. It recorded that one of the "most traumatic" events included an incident in which an offender had threatened the police officer with potentially deadly force. 384 Although this description is particularly apt to describe an armed confrontation, it seems to me that, in the context of the report of Task Force Alpha, it is also apt to include the circumstances which occurred in this matter, namely, a verbal threat, delivered by a private communication, which included the threat of death or serious violence against the police officer's life. 385 The report, when considering the issue of PTSD, records this at p 80: "The kinds of events which trigger Post Traumatic Stress Disorder are usually powerful events, not routine incidents, and they lie outside the range of experiences that individuals are able to deal with … Following such an experience, many PTSD-affected individuals tend to relive the memories for years, or even for life, as other events trigger the trauma of the past. … The nature and intensity of the stressors, especially the threat to life, exposure to grotesque death and feeling helpless, are particularly important in determining the likelihood of post traumatic stress disorder occurring." 386 The report of Task Force Alpha identified, as sources of stress which are inherent in police work, at least the following:

[154]

(b) the constant presence of a gun. 387 However the report went on to note that stress which stems from the nature of the police organisation and its administrative practices "… appears unambiguously to have a far greater impact than other sources of stress". 388 I pause to note at this point that the plaintiff does not claim in this case that his present condition of PTSD was in any way derived from or related to organisational stress. It is his case that his current condition derives from and was caused by the threat delivered to him by Hussein and that the NSW Police Force was negligent because it failed to provide him with early intervention which would have had the effect of remediating the usual consequences of such a traumatic event. 389 At p 14, the following is recorded: "The degree to which officers become stressed depends on factors such as the amount and type of stress, the meaning to them of police work, their past history, their personality, their personal coping capacity, and the amount of support they receive. Put differently, the sources of stress are individual, demographic, organisational and situational, and the amount of stress that is subjectively felt by each person will depend on various combinations of all of these factors." 390 The report discusses possible events which may give rise to stress, including how police officers rank those. At page 28, it contains the following: "Whatever the relative input of the various sources of stress, the consequences for individuals include the development of physical disorders, emotional and personal problems, and impaired work performance." 391 When referring to physical disorders the report nominates obvious physical disorders such as serious heart disease, digestive disorders and problems with the circulatory systems. In so far as physical effects are concerns, it nominates a range of muscular or other like aches or pains including hyperventilation. 392 When considering emotional and personal problems, the report refers to issues such as whether suicide, divorce, alcoholism and other trauma, which it calls post-shooting trauma, are related to stress. None of these is relevant in this circumstance. 393 The report also discusses the relationship of impaired work performance to stress. It says: "Among the effects of stress are impaired work performance and low morale … Absenteeism is another possible consequence, though it is difficult to be conclusive about its relationship to stress …". 394 The report balances the role of stress with research and suggests that stress over relatively short periods of time may be beneficial to work performance. 395 A summary of the chapter on stress contains this paragraph (at p 34-35): "Negative consequences of stress, however, can include the development of physical disorders, impaired work performance and low morale … Police officers may present a self-confident image, but they often find themselves unable to speak to fellow officers or to anyone else, and they tend to distance themselves from situations which they define as stressful. Stress control efforts such as these are introverted and unhealthy, and often increase rather than decrease stress. Whether or not police officers cope with the problems they face depends on factors such as knowing and being able to put into practice a range of stress management techniques, and gaining support from their social networks both within and outside the organisation." 396 The contents of this document would be sufficient to satisfy me that the occurrence of PTSD, as a consequence of the receipt of a threat of violence or physical harm, was a risk which was known to NSW Police Force and the Commissioner. 397 My conclusion is strengthened by the evidence of Ms Smith (the relevant delegate of the Commissioner) on this subject which was to this effect (T460.50ff): "Q. Generally speaking, you were aware, as at the relevant period, that a significant source of stress for a police officer would be a death threat? A. Yes.

[166]

(g) Annexure 91: An extract of the Police Weekly of 16 February 2004. Spread over many pages are references to stress but in particular at p 6 the following occurs: " Some of the more common types of stress 1. Post traumatic stress disorder: The type of stress that can occur during, shortly after or some time after being exposed to or involved in a critical incident. …". The publication also includes in large bold type reference to the Employee Assistance Program and the availability of free confidential counselling. 402 The plaintiff sought to dismiss this material on the basis that the findings of Gibson DCJ in Pearce v The State of NSW (District Court of NSW, 29 September 2005) are applicable. Her Honour said at [89]: "References to the availability of counselling were few, and were generally expressed to be for clear-cut trauma incidents. It is my finding that the quality of these publications was superficial to the point of being largely useless". 403 At para [99] her Honour said: "It is thus my finding that the publications relied upon by the defendant are so few in number and so superficial in content that the plaintiff would have had no idea of his entitlement to have counselling if he wanted to seek it. What little documentation there is speaks of counselling being available after significant incidents, and with the approval of the Commander …". 404 It was submitted to me that I ought accept these findings as being directly applicable to Ex 10. I do not. A finding of fact by a District Court Judge is not a precedential finding which binds any other court. As well, given that it is a finding of fact, it necessarily depends upon the facts that were adduced. I do not know whether the material in evidence before me is the same as that which was proved before her Honour, nor would it be profitable to inquire. It is my task to make findings upon the basis of the evidence with which I have been provided. The decision of Gibson DCJ provides no assistance in the disposition of the issues in this case. 405 My review of Ex 10 is that there were many instances where advice was provided to members of the NSW Police Force that counselling was freely and confidentially available 24 hours a day, 7 days a week, for any incident, including, in particular, any work related incidents which gave rise to stress, including PTSD.

[172]

(d) establishing a Peer Support Scheme which was intended to be widespread throughout various police stations and work locations in NSW. The purpose of this scheme was, inter alia, to provide immediate support to officers exposed to traumatic events and, if appropriate, to refer them through to the Employee Assistance Program or the Police Psychology Unit. 414 This evidence satisfies me that, from the defendant's perspective, the risk was not insignificant. It might affect up to one third of officers exposed to traumatic events, and it was seen by the Commissioner as sufficient to warrant the expenditure of monies on the unit, program and scheme to which I have referred. I doubt that the Commissioner would have taken these steps if the risk was an insignificant one. 415 The final element required by s 5B(1) is s 5B(1)(c), being the consideration of whether a reasonable person in the position of the Commissioner would have taken precautions against the risk of harm. In determining this, I remind myself that I must consider the matters set out in s 5B(2) of the Civil Liability Act as well any other relevant facts or circumstances. 416 As well, in considering this element, the most recent statement of claim and the conduct of the trial by the parties establish the specific precautions which fall for consideration in this particular case. 417 It is also appropriate to note by way of introduction that it is not alleged by the plaintiff that the Commissioner was negligent in failing to prevent the threat by Hussein occurring. Nor is it alleged that the Commissioner was negligent after the occurrence of the chance meeting between the plaintiff and Hussein in April 2006. The particulars concentrate on the failure of the Commissioner, in the period between December 2003 and April 2006, to provide a safe system of work, which the plaintiff says would have provided for early intervention for him. 418 It will be necessary to separately consider whether the failures particularised and relied upon caused, in the sense required by s 5D of the Civil Liability Act, the plaintiff's PTSD. 419 The issue is whether a reasonable person in the position of those for whom the defendant is responsible would have taken the pleaded precautions. As I have said, in answering that question, the court is obliged to have regard to the items listed in s 5B(2), which include the following: "(a) The probability that the harm would occur and the likely seriousness of the harm." 420 There are other matters to which the section refers, including the burden of taking precautions to avoid the risk of harm and the social utility of the activity that creates the risk of harm, but I do not think that they have any particular relevance in this circumstance. There was no undue burden in referring the plaintiff for early intervention. The system existed to permit that to happen and there is no evidence at all that it would have been impossible, or difficult, or burdensome, so to do. The defendant did not rely upon these latter provisions to excuse any failure to take action. 421 The relevant question in this matter however is to identify the circumstances which were known or ought to have been known to the Commissioner or the plaintiff's supervisors, and to ask whether, having regard to the probability that the harm would occur, and the likely seriousness of the harm, a reasonable person in their position would have taken relevant precautions. 422 I have earlier described the legal requirements for the proof of a breach of a duty of care. It is now appropriate to proceed to the application of those principles to the facts and circumstances which I have found. 423 It is important to note at the outset of the review of these particulars, that the plaintiff did not seek to make out a case, and specifically disavowed any case based upon the proposition that there should have been a system of work which ensured that all police officers who received a serious death threat should be automatically referred for early intervention, once they had received such a threat. 424 It is necessary to examine what the precautions are which the plaintiff contends ought to have been taken. The starting point of this exercise is the pleadings and particulars of negligence, which I have earlier set out. In final submissions for the plaintiff, counsel indicated that particulars (a) and (g) were no longer pressed. 425 Particular (b) was in these terms: "Failure to advise the plaintiff of welfare services available through the NSW Police." 426 The plaintiff gave evidence that he was entirely unaware of the welfare services. 427 I do not accept that evidence. It is clear that the Commissioner's Instructions, a copy of one part of which was contained within the Police Weekly and to which I have referred in paragraph 401 above were compulsory reading for police officers. The plaintiff was a diligent and careful police officer. I think it likely that he read about the existence of welfare services and knew about them in a relevant way. As well, the plaintiff knew of the existence of Peer Support Officers (T206.1ff). Those officers were a part of the NSW Police Force organisation and were able to provide for the welfare of various fellow officers. The plaintiff gave evidence that he did not know what Peer Support Officers did. I do not accept this evidence. There are two reasons for this. First, the very name given to these officers identifies clearly what they do and what their role is. Secondly, their existence and their role was widely advertised and circulated. 428 Even if I be wrong in making these findings about the plaintiff's knowledge, the real thrust of this particular is not necessarily what the plaintiff actually knew, but rather whether the Commissioner took reasonable steps to advise the plaintiff of available welfare services. 429 I am satisfied that the Commissioner did take reasonable steps to so advise the plaintiff. 430 First, the material in Ex 10, extracts of which I have already referred to, demonstrate that there was material published and circulated within the NSW Police Force which brought to the attention of all police officers over a period of years, the existence of welfare services available to the NSW Police Force. 431 Secondly, the steps which were taken were sufficient for Ms Smith and Mr Slattery to be aware of the existence of counselling and the like services, and they had the ability to invite, or encourage the plaintiff to attend in the appropriate circumstances. 432 Thirdly, in the factual circumstances which I have found, and in particular, in light of the plaintiff's denial of the existence of any stress, or any condition needing the existence of welfare services, in the face of direct enquiry, it was not unreasonable of those for whom the Commissioner was liable to refrain from specifically giving advice to the plaintiff about the availability of welfare services. 433 Fourthly, given the plaintiff's length of service as a police officer, his achieving the requisite qualifications for promotion to Sergeant in 2002, and the nature of the work which he was doing, it would not have been unreasonable of his superior to take the view that he would have been well aware of the welfare services available, and in the absence of their attention being drawn to an unfulfilled need in the plaintiff for such services, to have done nothing. 434 Accordingly, on any one or more of these bases, I am not satisfied that there has been a failure by the Commissioner to advise the plaintiff of the relevant welfare services. There has been no failure of the Commissioner to act reasonably. The plaintiff has not proved that the Commissioner was negligent in respect of this particular. 435 Particular (c) refers to a failure to refer the plaintiff to the Police Psychology Unit for psychological and/or psychiatric assessment or monitoring. It is the particular at the centre of the plaintiff's claim. 436 The plaintiff's case was not that, because he had received a serious threat, he ought automatically have been referred to the Police Psychology Unit, but rather that having regard to the nature of the threat, his particular personality and all of the surrounding circumstances, it was unreasonable for his superiors not to have referred him to the Police Psychology Unit for psychological and psychiatric monitoring, by way of early intervention. 437 His case is that had such referral occurred, he would have been properly assessed by a mental health professional, his condition diagnosed and early treatment provided, which, on the balance of probabilities, would have prevented him from developing a chronic PTSD. 438 One of the curiosities of the plaintiff's case was that whilst it was argued that early intervention should have happened at the behest of the plaintiff's superiors, no specific tune or occasion was pointed to, as being the time when such referral ought to have happened. 439 Rather, it seemed to have been argued that the referral for early intervention should have been a response to the plaintiff's ongoing complaints, so that the referral ought to have happened at least by January 2004, if not earlier. 440 I have sufficiently described the nature of the 25 December 2003 threat. It was a serious one, amounting to a crime, and one which was taken very seriously by the NSW Police Force. 441 Senior counsel for the plaintiff submitted that the plaintiff's superior officers needed to have regard to the plaintiff's particular personality traits when considering if he should be referred for psychological or psychiatric assessment and monitoring. 442 The plaintiff did not submit that his particular personality was known to his superiors. Rather, he submitted that, having regard to the qualities which were identified as necessary, or at least desirable, for candidates to successfully qualify for close personal protection duties, his superiors were sufficiently on notice of what his personality features were likely to be. 443 The basis for that submission was a part of a confidential exhibit, Ex 1, which included on p 10 a list of attributes which a close personal protection officer, such as the plaintiff, "should possess". The particular attribute to which the plaintiff's submissions pointed was, so it seems to me, that a CPP officer needed the "ability to work for long periods without showing signs of stress or loss of composure". 444 From this statement of a generally desirable common attribute for a CPP officer, the plaintiff argues that his superiors knew, or else ought to have known, that he, in fact, had such a personality attribute. 445 In short, the plaintiff argued that his superiors knew or ought to have known that the plaintiff was unlikely to complain about any difficulty he was having, he was likely to suppress his emotions and that any sign of stress or anxiety would not have been obvious. Hence, it was argued, there was a need for early intervention by way of a referral to a mental health professional, initially to the Police Psychology Unit and from there, if necessary, to a psychiatrist. 446 As well, the plaintiff pointed to all of the facts and circumstances which I have referred to earlier in this judgment, as providing the entire context for such a response. In particular, the plaintiff pointed to the evidence of his hypervigilent behaviour and his inability to sleep satisfactorily resulting in his attending his general practitioner. 447 Whilst my findings have accepted that these features were present, at one time or another, and to some degree or another, those features alone do not represent a balanced view of the facts and circumstances, as they presented themselves to the plaintiff's supervisors. 448 As I have earlier pointed out, the expert opinion of the psychiatrists was that the plaintiff was well capable of concealing his symptoms and still continuing to operate effectively in his job, which is precisely what occurred in this case. 449 From the perspective of the plaintiff's superior officers, the fuller picture with which they were presented included the following matters:

[179]

(g) the plaintiff made no request for relief from his position, for a period of sick leave or any other assistance when he was spoken to. 450 In short, the picture presented by the plaintiff to his superior officers, and which they could ascertain upon making reasonable enquiries, was that he was fine, working well, and required nothing of them to counteract any effects of the Hussein threat. 451 The Hon. Bob Carr, with whom he worked closely and consistently, did not detect any problems with the plaintiff. The plaintiff's colleagues in the Premier's Office and Department did not observe, nor were they told, that anything was untoward. 452 Leaving aside any suggestion of an automatic referral system, there was no reason to be derived from what they knew or could establish for the plaintiff's superiors to refer him to the Police Psychology Unit, or for any other form of early intervention. 453 On analysis the plaintiff's submissions on this aspect really mean that the plaintiff's superiors should have referred him because of the nature and seriousness of the threat, and because he was a member of the CTCC engaged in close personal protection duties. 454 In my opinion, the conduct of the plaintiff's superiors in not referring him to the Police Psychology Unit for an expert mental health assessment or any other form of early intervention was not unreasonable. Put in another way, I do not think that a reasonable person in the position of the plaintiff's superiors would have taken this precaution. In short, although a reasonable person would have been aware of the not insignificant risk of a psychiatric illness developing from the threat which the plaintiff received, in light of the plaintiff's denials that he was affected in any way, when asked how he was, his regular attendance at work, his ability to discharge his duties without any observed inadequacy, and his ability to undertake successfully his promotion qualifications when considered without the thought of hindsight, it was reasonable to refrain from making a referral of the plaintiff to the Police Psychology Unit or other form of early intervention. 455 I am therefore not satisfied that this particular (c) has been proved by the plaintiff against the Commissioner, or the plaintiff's superior officers for whom the Commissioner was liable. 456 Particular (d) is an allegation that there was a failure to ensure that the plaintiff was made aware of the early signs and symptoms of any psychiatric and/or psychological conditions that may eventuate. It is unnecessary to consider this particular further because, in the joint report of the psychiatric experts (Ex 19) at p 4, it is recorded that: "Both experts concurred that there was a possibility that Mr Benic's symptoms would have become contaminated by him being provided with information and education about all of the possible psychological outcomes which might eventuate. They did not concur with the proposition outlined in the Statement of Claim in this regard." 457 In light of this unanimous view, I do not think that, on any basis, it can be properly argued that a failure to inform the plaintiff as is alleged in particular (d) was unreasonable. In fact, the joint opinion suggests that it was appropriate not to inform him. I am not satisfied that this particular has been made out. 458 Particular (e), which relates to a failure to ensure that the plaintiff's psychological and/or psychiatric welfare was adequately monitored and kept under review, is one which relates, as I understand it, to an allegation that the plaintiff's superiors, Mr Slattery and Ms Smith, in particular, did not ensure that adequate monitoring of the plaintiff's welfare occurred. 459 The effect of this particular is that, in addition to referring the plaintiff to the Police Psychology Unit, to which particular (c) relates, there ought to have been a system in place which kept the plaintiff's mental health and welfare under review by the plaintiff's superiors themselves monitoring and checking with the plaintiff how his mental health and welfare was. 460 It is appropriate to note that senior counsel for the plaintiff, in his opening (T12.34), made it clear that it was not any part of his case that the NSW Police Force ought to have had in place a system which automatically monitored every police officer who had received a threat, or which automatically referred every police officer for a psychiatric or psychological assessment. 461 If such an allegation had been made, then the provisions of s 42 of the Civil Liability Act would have become important, both to have been addressed by evidence and also to be considered in this judgment. 462 In light of that concession by senior counsel for the plaintiff, it has not been necessary in this judgment to give any attention to the meaning of, and consequence for this case of, the evidence given by the expert psychiatrists about the demonstrated lack of a broad positive benefit being derived from "critical incident debriefing", which is a form of automatic counselling for everyone involved in a "critical incident". 463 Instead, it was submitted that the particular circumstances surrounding the plaintiff's condition were such that his superior officers ought to have, and did not, ask him in a formal way how he was and whether he was adequately coping with the consequence of the threat. The "formal way" which it was said ought to have been used was not identified with any real precision. 464 It seemed that two possibilities were suggested to the witnesses. The first was that conversations should have taken place in person in a formal interview environment rather than over the telephone, or informally when a personal encounter occurred. 465 The second possibility was that a mental health expert should have been asked to undertake a formal interview to see if what the plaintiff had told his superior officers was accurate or not. 466 For the same reasons I have expressed earlier, in dealing with particular (c), I am not satisfied that it was unreasonable of the plaintiff's superiors to have refrained from involving a mental health professional. 467 As I have earlier found, the plaintiff was asked about his health and welfare by his superiors on a number of occasions. On each such occasion, the plaintiff gave answers which were reassuring and conveyed the impression that he was coping well. 468 There was no evidence which proved to my satisfaction that, had a different method of interviewing the plaintiff been adopted, such as the first possibility suggested above, a different response would have been forthcoming from the plaintiff. 469 But on the question of whether any one or more of these approaches was likely to have been more successful, and that this ought to have been known to the Commissioner, or his officers Ms Smith and Mr Slattery, the evidence was silent. 470 Everyday experience does not support the proposition that an individual will respond more fully, and openly, in a formal interview with a superior officer, than a response given in the course of a less formal, more friendly discussion. There was no expert evidence which suggested that this was the case. 471 A number of witnesses, including Mr Slattery, were asked whether they could have engaged in a more formal interview with the plaintiff than the informal conversational approach which they took. As was obviously the case, it was open to have adopted a different approach. 472 I am not satisfied that asking the question in a more formal or other different way would have made any difference to the responses received. It was not unreasonable of the plaintiff's superiors to have failed to engage in this conduct. 473 I reject this allegation of breach of duty. 474 Particular (f) relates to a failure to carry out an assessment of security arrangements at the plaintiff's home. It can be considered together with particular (h) which also relates to the adequacy of security measures. 475 There is no question that the NSW Police Force policy (Ex H) allowed for an assessment to be made of whether the private residences of officers who had received threats had adequate security enhancements. Relevantly, the policy included the following (at pp 6-7): "Additional measures available to threatened members may take the form of advice on personal security, the conduct of a security review of premises, suppression of personal records, and for sworn members, the approval for carrying … [a] fire arm whilst off duty. … Where a serious threat has been established, a member may be eligible to have security enhancements made to their primary private residence. It should be born in mind, however, that such enhancements represent only one response available to the member's wellbeing. Such security enhancements provide no guarantee of safety. Some of the most successful measures to ensure personal safety are often those precautions members can take themselves. The provision of security enhancements to a member's home, should be employed only when circumstances, such as the seriousness of the threat, dictate such action. Prior to deciding the type and extent of any enhancements, Commanders/Managers should consider requesting the Protective Security Group to conduct a formal residential Security Review of the threatened member's residence. Such review is undertaken by suitable qualified officers and provides recommendations regarding enhancements to the member's home security commensurate with that threat." 476 One thing that is plain from the evidence of the plaintiff is that he was well qualified to judge for himself the extent and adequacy of the security enhancements on his private residence. At the time the threat occurred, the existing enhancements were already quite extensive. They included an alarm and a number of security cameras. 477 The plaintiff himself did not seek to upgrade the existing security precautions at his private home. The evidence did not suggest that he was unable to do so if he had wanted to. Nor did he raise any issue with his superiors or else the officers at Maroubra Police Station about having the security at his private home enhanced. 478 I have found that immediately after reporting the threat to the Maroubra Police Station, some security action was taken to assist with the protection of the plaintiff. This included, at the plaintiff's request, obtaining permission from the Commissioner for him to carry his weapon whilst off duty. It also included the plaintiff being informed by Mr Murchie of the appropriate radio channel to be used to get assistance from the local police if required. I have also found that Mr Murchie told the plaintiff that he would arrange for additional car patrols of the plaintiff's house to take place. 479 The plaintiff gave no evidence about asking any of his superiors for any different, or improved, security arrangements. The plaintiff gave no evidence that he had asked for his security arrangements, including both personal protection or else enhancements to his home, to be changed or upgraded. Given the nature of his employment, and his skill and experience, it would be surprising if there was a significant deficiency which was felt by the plaintiff in his security arrangements, and which he did nothing about. 480 The plaintiff himself gave no evidence of any specific security precaution which he knew or reasonably thought was necessary, or else appropriate, to enhance the security of his home. Equally, there was no evidence that such security enhancements as did exist were inadequate, and needed to be upgraded. 481 There is no evidence that the taking of any security precautions at the plaintiff's home would have had, or else would reasonably likely have had, any ameliorating effect on the plaintiff's mental state. It was certainly not suggested that any relevant officers knew of any likely beneficial effect for the plaintiff if such precautions were taken. 482 In short, the plaintiff had arranged his own security prior to the threat, he requested and received additional security precautions, he was offered and received the benefit of additional security patrols and he asked for nothing more. He was an expert in the area of protection and the assessment of the adequacy of security measures. 483 In all of those circumstances, I am not persuaded that it was unreasonable for the Commissioner not to have taken any further additional steps as alleged by particulars (f) and (h). 484 As well, the joint report (Ex 19) of the psychiatrists does not identify any benefit to the plaintiff's mental health which might have been gained by additional security enhancements. 485 The plaintiff pleads in particular (g) that he ought to have been provided with respite from his work following the threat which he received. 486 Although it is possible that this was the particular which was abandoned by the plaintiff in his final submissions, since there were pleaded two subparagraphs with the letter (g) as particulars, it is appropriate that I express my views about those obligations. 487 The plaintiff did not need to provide protection duties for Mr Carr on each and every day between 25 December 2003 (after receiving the threat) and 27 February 2004. That was because, on a number of those days, he was either not rostered for duty, because Mr Carr was overseas and did not require the plaintiff's protection, or else he was having rostered days off. 488 According to Ex 3, during this period of 64 days, the plaintiff was not rostered for duty on 35 days and the plaintiff worked for only 29 days. 489 To the extent that the particular suggests that respite should have been provided for the plaintiff in the first period of eight to nine weeks, the number of days worked does not suggest respite was needed. The plaintiff was entitled to sick leave which was able to be taken on full pay. He did not take any sick leave in that period. 490 The plaintiff did not ask for sick leave or else say he was unfit for work. Any failure to provide respite for the plaintiff during that short time period was not in any way unreasonable. 491 If the particular refers to some respite being provided to the plaintiff in the longer term (after the first period of nine weeks or so), then there is no evidence sufficient to prove any failure to provide necessary respite, let alone evidence that such failure was unreasonable. 492 The plaintiff's case also suffered from the lack of any definition of what period of respite was appropriate and when it ought to have been provided. 493 The plaintiff, I have found, was asked about his health. He was consistently in attendance at work. He did not ask for any respite. He did not take any leave for any problem related to Hussein's threat. 494 I am not satisfied that his superiors (and ultimately the Commissioner) could be said to have acted unreasonably. I reject this particular of negligence. 495 Having now considered each of the particulars, and acknowledging that the nature and content of the duty of care is analogous to that of an employer, namely, a non-delegable duty, I am not satisfied that there has been any breach of duty. The standard of the Commissioner demanded by the plaintiff, in the way in which his case has been argued, has exceeded what was in all the circumstances reasonable. 496 It is as well to recall the importance in the law of negligence of the central concept of reasonableness. As Gleeson CJ said in Swain v Waverley Municipal Council (2005) 220 CLR 517 at [5]: "In legal formulations of the duty and standard of care, the central concept is reasonableness. The duty is usually expressed in terms of protecting another against unreasonable risk of harm, or of some kind of harm; the standard of conduct necessary to discharge the duty is usually expressed in terms of what would be expected of a reasonable person, both as to foresight of the possibility of harm, and as to taking precautions against such harm. Life is risky. People do not expect, and are not entitled to expect, to live in a risk-free environment. The measure of careful behaviour is reasonableness, not elimination of risk. Where people are subject to a duty of care, they are to some extent their neighbours' keepers, but they are not their neighbours' insurers." 497 The plaintiff's case demanded something more than what was reasonable on the issue of breach of duty. It cannot be upheld.

[183]

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party." 501 Neither party submitted that this case was an exceptional one to which the provisions of s 5D(2) applied. There are no features which I can discern which would enable that description to be given to this case. I will not give any further consideration to that subsection. 502 The terms of s 5D require immediate attention to the identification of the "particular harm" which it is said the plaintiff has suffered and which is the subject of the proceedings. 503 At this stage of inquiry, the phrase "particular harm" is quite different from the phrase "risk of harm" used in s 5B of the Civil Liability Act and to which I have given attention earlier. 504 What is necessary at this stage of analysis is to identify the "particular harm" suffered by the plaintiff and to ask whether that was caused by the offending negligence. 505 Here, the plaintiff claimed that the harm which he suffered was a recognised psychiatric illness, post traumatic stress disorder, which he would not have suffered had he been referred for early intervention. 506 As earlier indicated, the substance of the plaintiff's claim is that the negligence of the Commissioner was in failing to take any, or any sufficient, steps in the way variously particularised, to cause the plaintiff to receive early intervention from a mental health specialist in order to prevent any stress or anxiety associated with Hussein's threat having such an effect on the plaintiff as to amount to PTSD. 507 It is essential for the plaintiff to prove that the negligence, which I will refer to in summary as a failure to provide a safe system of work, was "… a necessary condition of the occurrence of the [PTSD]". This is defined as factual causation (s 5D(1)(a)). 508 It is important to note that a finding that implementing a safe system of work, ie a change of the circumstances which it was said existed, might have made a difference does not alone prove factual causation: Adeels Palace at [50]. What is required in this case is for the Court to be satisfied that the plaintiff would not have suffered from PTSD had he been referred, at an early stage, for assessment, review and treatment, by a mental health professional, either a psychologist in the Police Psychology Unit, or else a psychiatrist. 509 At common law, it was sufficient for causation to be satisfactorily proved by a plaintiff if a material contribution to a particular injury had occurred: Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 311 per Mason P: "It is sufficient for a plaintiff to establish that his or her injuries were 'caused or materially contributed to' by the defendant's wrongful conduct: March v E&MH Stramere Pty Ltd (1991) 171 CLR 506 at 514."

[184]

See also Duysellshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 417A per Gibbs J; Chappel v Hart (1998) 195 CLR 232 at [27] per McHugh J. 510 Although s 5D, rather than the common law, sets out the test for causation, that does not mean that the common law does not have any work to do, in an understanding of the section. 511 Section 5D(1) uses the phrase "… negligence caused particular harm …" when describing the determination which must be made by a court. At common law, and in common legal usage, the term caused would ordinarily be understood to include the words "… caused or materially contributed to …". 512 Section 5D(2) uses the phrase when considering an exceptional case: "… in accordance with established principles …". The context and meaning of this phrase, used in this subparagraph, acknowledges so it seems to me, that traditional understanding of causation as including not just a cause but also a material contribution. 513 As well, the two part test posed by s 5D(1) and also the exceptional case test, posed by s 5D(2), bear close resemblance to the analysis favoured by McHugh J in March at 530 and 531. It was an integral feature of that discussion, that the law regarded a material contribution as sufficient to amount to a cause. 514 As McHugh J said in March at 529: "… the common law has been forced to reject the application of scientific and philosophical theories of causation … Lawyers, and particularly academic lawyers, however, have modified [John Stuart] Mill's theory of causation and adopted it for legal purposes. The adaptation of Mill's theory holds that every necessary member of the set of conditions or relations which is sufficient to produce the relevant damage is a cause of that damage …". 515 Without binding authority, I would not be prepared to conclude that s 5D(1) ought be interpreted so as to exclude from that section, the existence of the common law concept of material contribution, where it uses the phrase "caused". 516 I feel constrained to express with great respect my profound disagreement with the obiter dicta of the Court of Appeal when it recently expressed the view that the statutory requirement of s 5D for "factual causation" and "scope of liability" do not include the common law concepts of material contribution or increase in risk: Strong at [47]-[48] per Campbell JA (Handley AJA and Harrison J agreeing). 517 Although he was not prepared to embrace the "but for" (causa sine qua non) test as the exclusive test for causation in negligence cases, Mason CJ in March, particularly at 516, highlighted difficulties with the "but for" test when applied to situations in which there are multiple acts or events leading to the plaintiff's injuries, but he did not express any opinion that the "but for" test was incapable of application in such circumstances. The significance of the absence of this conclusion in the current context is Mason CJ's earlier remarks linking the concept of "… material contribution …" to the existence of concurrent or successive tortious acts which caused injury or damage: March at 514. 518 The judgments in March, particularly those of Mason CJ and McHugh J, do not tell against the co-existence of the concept of material contribution and the case of the "but for" test for establishing causation. 519 It is necessary then to concentrate on proof, on the balance of probabilities, by reference to the "but for" test that the defendant's failure caused the plaintiff's injury. In so doing, I am not prepared to, and do not, ignore the concept of material contribution. 520 Expressed differently to this case, what I must decide is whether but for the failure of the Commissioner to provide a safe system of work which included referral of the plaintiff for early intervention, the plaintiff would not have suffered PTSD. 521 Accordingly, the factual steps which the plaintiff was obliged to prove on the balance of probabilities (see s 5E of the Civil Liability Act) were these:

[204]

Q. How did you feel about this contact with Mr Hussein after it? A. Very disturbing." 529 His reaction to this incident was explored in cross-examination. He agreed, with senior counsel for the State, that at the time Hussein went to shake his hand, there was something, which he could not identify, in Hussein's hand. The following exchange then took place (T146): "Q. Therefore I think it follows, doesn't it, that you can't exclude that the fact he didn't shake your hand was because he was holding something and he was just offering his forearm which was the best he could do, is that right? A. I don't agree with you. Q. Why? What's wrong with that? A. He could have put it in his left hand as well. Q. I beg your pardon? A. He could have put it from his right to his left hand. Q. Mr Benic, there is nothing, can I suggest to you, necessarily sinister about what occurred, is there? A. I found it very unusual so … Q. Alright. That event having occurred. You reported it? A. That's correct. Q. And you reported it, do I take it - well, why did you report it? A. Because it highlighted my concerns about Hussein and with the conversation that I had had with him, it further proved that he wasn't genuine about not saying that he didn't mean the threats, and further - further I became suspicious when he said that he is on medication and he is okay, he is alright, words to the effect 'for the time being', or he is okay." 530 This encounter, accepting the plaintiff's description, appears to be an entirely innocent one. Neither Hussein nor the plaintiff planned for it to happen. There was no motive for either of them to want to arrange a meeting. The fact that the plaintiff met Hussein caught him entirely by surprise, he did not even recognise him. 531 The apology and explanation proffered by Hussein, together with the expression of his feelings, did not suggest that he had, let alone had been continuing to, harbour since December 2003 any violent intentions towards the plaintiff. 532 Hussein's attempt to signify his peaceful feelings by offering his hand in a form of handshake was an objective indication to all of his attempts to apologise and to be remorseful for what had happened. 533 That is the way in which I interpret what happened. That is the way which any reasonable minded person would interpret what happened. Yet, the plaintiff's evidence, and his account to his treating psychiatrist and the other expert psychiatrists, consistently maintained that the episode had far more sinister connotations. It was also apparent that this episode led to the further appearance of symptoms of stress, and PTSD, which led to the plaintiff staying away from work and his ultimate retirement from his position as a police officer. 534 The expert psychiatrists all agreed in the opinion that, at the time the incident occurred, the plaintiff was sensitised in the psychiatric sense, so that he was likely to react far more adversely to an incident such as this than anyone else would. 535 The psychiatrists were unanimous in their view that the plaintiff's reaction was directly connected to the cumulative effects of the first threat in December 2003 and the surprise of the second meeting. They accepted that the plaintiff's account was demonstrative of symptoms of PTSD, and hence explained by it. 536 I accept their evidence. The appropriate way in which to review this episode when looking at the plaintiff's reaction, is to regard it as a product of his PTSD. 537 As I have earlier recounted, the joint report of Drs Phillips and Brown was prepared without the report of Dr Mayne. But he expressed his agreement with the views in it. That report expressed an opinion about the relevance of the second incident and the proper interpretation of the plaintiff's reaction to it. 538 Their joint report included this statement which is of importance (Ex 19, p 3): "Because of the clinical impression that the second threat in April 2006 was much less significant than the December 2003 threats, both experts considered that there was a sensitising effect from the initial threats and which were, in this context, interpreted more seriously than may have been warranted at the time of the plaintiff's meeting with Mr Hussein in April 2006. Both experts agreed that the second threat, despite its seemingly less severe nature, was the precipitant for Mr Benic having developed more significantly severe symptoms from mid 2006 onwards. The experts also agree that Mr Benic's policing work throughout his service career did not contribute in any fashion to his ultimate development of a PTSD/depressive type condition. … In further considering issues related to causation both experts concur that Mr Benic's obsessional personality style is likely to be of relevance in understanding his overall clinical presentation. Personal traits were considered likely to have led to some rigidity and inflexibility in Mr Benic's response to the threats against him and were also considered likely to have influenced his difficulties in engaging any treatment and his poor response to treatment to date. Both experts concurred that it was not possible to exclude the commencement of litigation and its ongoing nature as having been a further factor which has contributed to the persistence of the plaintiff's psychological complaints in recent years."

[205]

Causation - Has the Plaintiff Established "Factual Causation" 539 The first step to be proved by the plaintiff was whether the plaintiff would have attended upon expert assistance, to whom he had been sent, or else encouraged to go by his superiors, and cooperated in the process of early intervention and treatment. It is to be remembered that this needs to be considered for the period between December 2003 and April 2006. 540 Any direct evidence which the plaintiff might give on this issue is not admissible: s 5D(3)(b) Civil Liability Act, unless it is against interest. 541 As well, I must determine this aspect subjectively in the light of all relevant circumstances: s 5D(3)(a) Civil Liability Act. This means that it is the plaintiff's reactions which must be determined, and not what a reasonable person in the plaintiff's position would have done. 542 In considering this issue, I note that the plaintiff himself had as a matter of history sought out treatment from Dr Placanica when he thought it would assist him, and, as well, that the plaintiff was a member of a disciplined police force, with no history of any ill discipline. I think that it would be likely that he would do as he was told by his superiors and attend any assessment. 543 Both of these factors support an affirmative answer to the question of whether the plaintiff would have been favourably disposed to early intervention. 544 As against this view, the defendant points to the fact that, as Dr Mayne reported, the plaintiff was resistant to cognitive behavioural therapy provided by Dr Kearney after the second incident in 2006. However, I am satisfied that after April 2006, the plaintiff's psychiatric state was much worse than earlier during 2003 and 2004. I regard the difference in the plaintiff's state to be so significant, as not to provide a suitable guide. 545 I am satisfied that had he been referred for early intervention, that the plaintiff would have been amenable to such treatment and therapy as had been offered. 546 The second step in the factual causation issue is to determine whether, but for the failure to provide early intervention, the plaintiff would not have developed PTSD. 547 In order to determine this question, it is necessary to examine the relevant expert medical and psychiatric evidence.

[207]

Post Traumatic Stress Disorder - When did the Plaintiff's Condition Commence? 552 The experts in this case proceeded to attempt to determine the proper diagnosis of the plaintiff's condition by reference to the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, which is generally known as DSM-IV-TR. This edition was published in 2000. 553 It is necessary to place DSM-IV-TR into its context. The introduction to DSM-IV-TR cautions the reader in this way (at p xxx): "Moreover, although this manual provides a classification of mental disorders, it must be admitted that no definition adequately specifies precise boundaries for the concept of 'mental disorder'. The concept of mental disorder, like many other concepts in medicine and science, lacks a consistent operational definition that covers all situations." 554 The manual also highlights the limitations of the approach. It says (at p xxxi): "DSM-IV is a categorical classification that divides mental disorders into types based on criteria sets with defining features. This naming of categories is the traditional method of organizing and transmitting information in every day life and has been the fundamental approach used in all systems of medical diagnosis. A categorical approach to classification works best when all members of a diagnostic class are homogeneous, when there are clear boundaries between classes, and when the different classes are mutually exclusive. Nonetheless the limitations of the categorical classification must be recognised. … The clinician using DSM-IV should therefore consider that individuals sharing a diagnosis are likely to be heterogeneous even in regard to the defining features of the diagnosis and that boundary cases will be difficult to diagnose in any but a probabilistic fashion." 555 The introduction also cautions clinicians to exercise their clinical judgment. It says (at p xxxii): "DSM-IV is a classification of mental disorders that was developed for use in clinical, educational, and research settings. The diagnostic categories, criteria, and textual descriptions are meant to be employed by individuals with appropriate clinical training and experience in diagnosis. … For example, the exercise of clinical judgment may justify giving a certain diagnosis to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis as long as the symptoms that are present are persistent and severe …". 556 Spigelman CJ expressly refers to the limitations of DSM-IV for use in litigation: State of NSW v Seedsman [2000] NSWCA 119 at [114]-[121]. 557 Noting the limitations and concerns about DSM-IV, it is appropriate to examine some features of post traumatic stress disorder as referred to in the manual. It says (at p 463): "The essential feature of Posttraumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity, … The person's response to the event must involve intense fear, helplessness or horror … The characteristic symptoms resulting from the exposure to the extreme trauma include persistent re-experiencing of the traumatic event … persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness … and persistent symptoms of increased arousal. The full symptom picture must be present for more than one month, and the disturbance must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning." 558 It goes on to record this (at p 464): "The individual has persistent symptoms of anxiety or increased arousal that were not present before the trauma. These symptoms may include difficulty falling or staying asleep that may be due to recurrent nightmares during which the traumatic event is relived … hypervigilance … and exaggerated startle response. Some individuals report irritability or outbursts of anger … or difficulty concentrating or completing tasks." 559 The manual notes that if the duration of symptoms is less than three months it is commonly described as an acute post traumatic stress disorder, but when the symptoms last three months or longer it is described as chronic post traumatic stress disorder. 560 Dr Phillips concluded that in the period 25 December 2003 up to April 2006, immediately before the second episode, the plaintiff was suffering from post traumatic stress disorder. He acknowledged that there was a degree of artificiality in separating out the various disorders, ie anxiety disorder, depression disorder, and post traumatic stress disorder. As I understand his opinion, Dr Phillips is of the view there was evolving evidence of symptoms of, or else those which pointed to and were diagnostic of, post traumatic stress disorder during the period to which I have just referred. 561 Dr Brown accepted that her difference of opinion with Dr Phillips was a matter of degree. She accepted that the plaintiff experienced anxiety symptoms but, because the plaintiff was able to continue to operate and work effectively, particularly having regard to what he told Dr Placanica on 23 January 2004, Dr Brown concluded that this was a period of an adjustment reaction to the threat, with anxiety symptoms, rather than an actual psychiatric disorder. 562 Dr Mayne said that based on symptoms reported to him, which I will list shortly, he had little doubt that he should make a diagnosis of post traumatic stress disorder. The symptoms which influenced Dr Mayne were these:

[211]

(d) Increasing feelings of stress accompanied by difficulties in sleeping. 563 These were the features which led Dr Mayne to reach his conclusion of a diagnosis of post traumatic stress disorder. I did not detect any need for Dr Mayne to be satisfied about the intensity or regularity of the symptoms. The existence of the symptoms were sufficient for him to reach his diagnosis. 564 All doctors were agreed that, assuming it to be correct, the history which the plaintiff gave to the court with respect to his behaviour when he arrived at home, and his behaviour in sitting when outside or in cafes with his back towards the wall, showed symptoms of a condition which could be called hypervigilance, which supported a diagnosis of post traumatic stress disorder. 565 Dr Brown explained that it was her view that, whilst the symptoms may have been present, because the plaintiff was able to operate normally both in his work environment and in his social environment by developing a personal relationship with his now partner, travelling overseas and generally attending to his day to day functioning, she would not have thought his symptoms were sufficiently severe to constitute a psychiatric disorder. 566 As Dr Brown said, the difference between the experts is a matter of degree rather than a matter of principle. 567 I accept that, in the period since December 2003, the plaintiff has intermittently experienced the various symptoms of which he has given evidence. However I do not think that the whole of the evidence enables me to be satisfied that the various symptoms were as serious as the plaintiff suggested, nor that they occurred as frequently as he suggested, nor that they had the regularity which he suggested, except for the period from 25 December 2003 up to, but not after, 23 January 2004, when the plaintiff visited Dr Placanica. 568 Overall, I am satisfied that the plaintiff engaged in hypervigilant behaviour in the sense of what he did when he came home in the evening and in preparing himself for bed. As well, his behaviour in cafes and other public places by sitting with his back to the wall falls within such description. His tendency to anger with Mr Laggas and contractors on the site is also established, and I am satisfied that he displayed those symptoms. But as I have said, whilst I am satisfied that those matters occurred, it was not to the same extent and degree for which the plaintiff contended. It was much less regular and significant. 569 There is certainly evidence, but only really in the first month after Hussein's threat, that the plaintiff had a significant interruption to his ordinary sleep. After that period of time, and in particular after he had completed his first prescription of Stilnox sleeping tablets, I am not satisfied that his sleep was as disturbed as it once was. Certainly there will have been occasions when he did not sleep through the night but I am not satisfied that this occurred on many occasions at all. If they had, I am persuaded that the plaintiff would have returned to Dr Placanica and sought further assistance from him. 570 The fact that he did not seek further medical assistance persuades me that either he was not suffering from any insomnia and the variety of other symptoms at all, or else if he did, it was to a very minor degree, and did not necessitate seeking medical or psychiatric advice and assistance. 571 I draw, from that picture of symptoms and expert opinions, that the probability is that the plaintiff suffered from post traumatic stress disorder or else symptoms which in due course were properly diagnosed as post traumatic stress disorder from an early time, and that this continued, albeit to a relatively mild extent, up until April 2006. After the meeting with Hussein in April 2006, the symptoms became much more significant. 572 I am satisfied that the plaintiff's condition of post traumatic stress disorder was only to a mild extent because the plaintiff was able to function entirely effectively in his job as a police officer. In this period of time, he was also able to function effectively generally, he met and developed a relationship with his current partner and was able to continue to undertake work and dealings with respect to his real estate interests and his physical activities of attending at the gym. 573 Although his disorder seems to have reduced his social interaction, there is no suggestion that he was unable to function socially. As well, he seems to have undertaken overseas travel. 574 All of these things combine to paint a picture of an individual who suffered a significant threat and developed a mild psychiatric illness which became chronic, but remained at a low level until after the incident of April 2006 when it deteriorated. 575 That this condition was caused by Hussein's threat is clear. Senior Counsel for the defendant did not suggest otherwise.

[212]

Effectiveness of Early Intervention 576 A matter upon which the psychiatrists were unable to reach agreement was the matter of preventability. That is to say, would early intervention by way of psychological counselling and/or psychiatric treatment have been effective in the plaintiff's case to prevent his developing the PTSD from which he suffered, and continues to suffer. 577 Dr Phillips expressed the view that it was an axiomatic principle in psychiatry that early intervention and treatment is preferred to late intervention (Ex 91, p 3). In his evidence when asked about the basis for that opinion, Dr Phillips expressed it in this way (T391.18-391.27): "A person … slides into a psychiatric disorder … There is a - let's take there is a stressful situation or something happens and a person then begins to decompensate psychologically and how quickly that happens is a product partly of resilience and personality attributes as we talked about before. It is much easier as a generality to treat symptoms at an early stage when they are not severe and entrenched and have altered the person's lifestyle than later on when symptoms have come to dominate all domains of the person's life and that is why I said it is axiomatic." 578 His further evidence made clear that he was speaking generally of psychiatric conditions, and he said that there was overwhelming evidence "… that early intervention by and large is very much more effective if it is at an early point in the illness spectrum. That goes for a potentially psychotic … disorders, and it goes also for depression spectrum disorders and anxiety spectrum disorders" (T391.50-392.4). 579 Dr Phillips said that there was not a great deal of research which was specific to the effectiveness of early intervention for PTSD. 580 Dr Brown said, in addressing the issue of whether there was adequate research studies on post traumatic stress disorder that would enable a scientific conclusion to the question of whether early intervention would prove effective, that "I think the jury is still out in the psychiatric literature" (T395.2). 581 Dr Brown agreed in general with the broad principle that early intervention is to be preferred to later intervention, but she went on to say this: "I don't think that any doctor would disagree with this, but PTSD may be a different animal. Look at critical incident stress debriefing and how much time, energy and research went into that until its been thoroughly debunked. Intuition would tell us if somebody has had an awful experience we ought to sit them down, get them to talk about it and they will feel better but in fact, … it makes people worse. … And that's why these studies are now being done to go further than critical incident stress debriefing. Is PTSD different to other psychiatric disorders in other ways. Early intervention, from the studies I have seen so far, should make a difference but it doesn't seem to." (T395.19-395.37 ) 582 Dr Mayne did not disagree with either of his colleagues that there was not a huge volume of research on the question of effectiveness of early intervention for PTSD, and that the jury was still out on the question. 583 Both Dr Phillips and Dr Brown accepted that the part of Ex 21, which was the National Clinical Practice Guideline No. 26 entitled "Post Traumatic Stress Disorder": The Management of PTSD in Adults and Children in Primary and Secondary Care" ("NICE guidelines"), published in March 2005 by the National Collaborating Centre for Medical Health, having been commissioned by the National Institute for Clinical Excellence in the United Kingdom, was a publication by the premier group involved with research into conditions such as PTSD and was probably the best currently available information on the subject. 584 It is appropriate to note that the NICE guidelines were not available in December 2003 and January 2004 when the threat was delivered by Hussein. They would not have been published in Australia before March 2005, and may not have first appeared before mid 2005. Whilst the NICE guidelines can be used appropriately in this judgment to examine the scientific basis for the effect of early intervention, they are not available to be used on the question of foreseeability or breach of duty. 585 Some parts of the NICE guidelines deserve careful attention to identify the current state of scientific knowledge on this issue. 586 The NICE guidelines state that they were developed to provide advice to health care professionals on the treatment and management of post traumatic stress disorder. They state that they were developed by a multi-disciplinary team of healthcare professionals after careful consideration of the best available evidence. 587 Paragraph 2.1.3 is in the following form: " 2.1.3 Course and prognosis The onset of symptoms is usually in the first month after the traumatic event, but in a minority (less than 15%; McNally, 2003) there may be a delay of months or years before symptoms start to appear.

[213]

Post-traumatic stress disorder shows substantial natural recovery in the initial months and years after a traumatic event. Whereas a high proportion of trauma survivors will initially develop symptoms of PTSD, a substantial proportion of these individuals recover without treatment in the following years, with a steep decline in PTSD rates occurring in the first year (e.g. Breslau et al, 1991; Kessler et al, 1995). On the other hand, at least a third of the individuals who initially develop PTSD remain symptomatic for 3 years or longer, and are at risk of secondary problems such as substance misuse (e.g. Kessler et al, 1995). This raises the important questions of when treatment should be offered after a traumatic event and how people who are unlikely to recover on their own can be identified. These questions are addressed in the guideline sections on early intervention after trauma (Chapter 7) and screening for PTSD (Chapter 8). One important indicator of treatment need appears to be the severity of PTSD symptoms from around 2-4 weeks after the trauma onwards (eg. Shalev et al, 1997; Harvey & Bryant, 1998). However, it is important to note that symptom severity in the initial days after trauma (up to about 1 week) is not a good predictor of persistent PTSD (Shalev, 1992; Murray et al, 2002). Importantly, evidence suggests that the chances that a PTSD sufferer will benefit from treatment do not decrease with time elapsed since the traumatic event (Gillespie et al, 2002; Resick et al, 2002). 588 Paragraphs 2.6.4, 2.6.5 and 2.6.6 are in the following terms: " 2.6.4 Watchful waiting A significant number of people presenting with acute reactions or established PTSD can be expected to recover within a relatively short space of time (Rothbaum et al, 1992; Bryant, 2003). The rate of remission is higher for those with milder symptoms. For such people some element of brief education, support and advice in the context of their presentation followed by watchful waiting may be most appropriate, with the individual either encouraged to return for further assessment or offered a specific appointment time if there is sufficient concern on the part of the general practitioner or the primary care team member.

[214]

2.6.4.1 Where symptoms are mild and have been present for less than 4 weeks after the trauma, watchful waiting, as a way of managing the difficulties presented by individual sufferers, should be considered by healthcare professionals. A follow-up contact should be arranged within 1 month. 2.6.5 Immediate management of PTSD The immediate management of PTSD in part depends upon the nature of the trauma and the circumstances in which it arose. In the rare event that it arose as part of a major disaster, man-made or natural, specific resources to support individuals involved in this may be available and it will be for the general practitioner and other members of the primary care mental health team to facilitate the individual's access to such services as may be available. More usually, however, the trauma will arise as a result of a smaller-scale incident. In the latter circumstances a number of treatment options are available. For some people relatively low-key brief interventions provided in primary care can offer the appropriate level of intervention. For others, more complex and longstanding interventions are required; inevitably some of these people will be required to wait for treatment, and this will leave the general practitioner and other members of the primary care mental health team with a potentially significant management problem. This might relate to specific PTSD symptoms, for example intrusive recollections or nightmares concerning the event, specific sleep disturbance, social withdrawal, irritability or more generalised distress. In such circumstances strategies such as advice on sleep hygiene, advice to rely on the natural support from their families and others available (including, where appropriate, support groups) and where possible pharmacological interventions (see Chapter 6) should be considered. Depending on the waiting time for appropriate psychological or other specialist interventions, the general practitioner may also consider regular reviewing of individual patients. 2.6.6 Persisting PTSD and chronic disease management Regardless of offers of treatment or actual courses of treatment, a number of individuals with PTSD will achieve negligible or only partial recovery and will continue to suffer from PTSD symptoms for a considerable period. The degree of disability that people with chronic PTSD suffer can be significant and can considerably impair functioning in an individual's personal, social and occupational life. This may be associated with problems such as chronic sleep disturbance and occasionally with alcohol or drug misuse. More often it is characterised by significant social avoidance. In these circumstances the focus of management in primary care may be on the disabling symptoms rather than the underlying PTSD. Advice on sleep hygiene and (where appropriate) pharmacological interventions may have some benefit in dealing with sleep-related problems. An encouragement to engage in structured and supported activities with some facilitation from primary or secondary care mental health staff may also be of value to people with the chronic social avoidance associated with PTSD, as may contact with other individuals who have undergone a similar experience. In some areas support groups exist and individuals should be made aware of these and of national organisations. Chronic disease management models, where the practice identifies and helps individuals develop appropriate coping strategies to cope with their chronic problems, should be considered. Models such as those that have been developed for the treatment of depression (Katon et al, 2001), drawing on previous work for the treatment of chronic physical conditions such as diabetes or arthritis, offer some promise. Regular routine contact, often through members of the primary care staff other than the general practitioner, and regular if not frequent reviews with the general practitioner, offer a real opportunity. 2.6.6.1 Chronic disease management models should be considered for the management of people with chronic PTSD who have not benefited from a number of courses of evidence-based treatment." 589 The NICE guidelines went on to review the position with early intervention for PTSD in adults. 590 Paragraph 7.1 includes the following: "However, given that the prevalence of initial distress following a traumatic event is far greater than that of either acute stress disorder or PTSD, the potential exists to deliver interventions to people whose problems would spontaneously remit. As well as the time commitment required of the traumatised individual, interventions for traumatic stress generally involve confronting aspects of distressing experiences, the emotional cost of which might not warrant early intervention … There is a vigorous debate between those who would provide some intervention for all victims and survivors of traumatic incidents, and those who advocate waiting and targeting interventions at people likely to develop the disabling symptoms of chronic PTSD (Litz et al, 2002)." 591 In looking at the current practice, the guidelines record this in paragraph 7.2: "Both [critical incident stress debriefing] and [critical incident stress management] were designed to try to accelerate recovery before harmful stress reactions have had a chance to damage the performance, career, health and families of victims. However, there is no agreement on the best way to deliver early interventions or indeed whether it is possible to reduce the incidence of PTSD through this route (Litz, et al, 2002). Indeed, the area is hotly contested … These studies led to claims that CISD was an ineffective technique and that it should not be routinely used in supporting people after traumatic incidents … … More recently, there has been significant interest in replicating some of the findings from the treatment of chronic PTSD in an early intervention format with populations identified as at risk of developing chronic PTSD. The belief that cognitive-behavioural therapy is effective for PTSD, the disquiet over debriefing and the desire referred to earlier to limit the duration of disability for sufferers has led to either the adaptation of routine CBT in to shorter variance delivered close to the time of the incident, or the application of more standard CBT within a few months of the incident. Given that the efficacy of CBT for PTSD was only established in the late 1990s, early interventions of this kind are a new development and have only recently been the subject of research." 592 In giving a clinical summary, the guidelines, at paragraph 7.5 say this: "Notwithstanding these methodological reservations, given the evidence that there is unlikely to be a clinically important effect on subsequent PTSD, we do not recommend that systematic, brief, single session interventions focusing on the traumatic incident are provided individually to everyone who has been exposed to such an incident. However, we do recommend the good practice of providing general practical and social support and guidance to anyone following a traumatic incident. Acknowledgement of the psychological impact of traumatic incidents should be part of healthcare and social service workers' responses to incidents. Support and guidance are likely to cover reassurance about immediate distress, information about the likely course of symptoms, and practical and emotional support in the first month after the incident." 593 The NICE guidelines also go on to consider the issue of drug intervention at paragraph 7.9 where the following is included: "Given the small number and scale of studies of early intervention drug treatments, it is not possible to draw strong conclusions. At present, there is no conclusive evidence that any drug treatment helps as an early intervention for the treatment of PTSD - specific symptoms. However, for sufferers who are acutely distressed, and may in particular be experiencing significant sleep problems, consideration may be given to the use of medication." 594 It is appropriate to draw together the material from the NICE guidelines. In so doing, it must be remembered that the guidelines necessarily speak in generalisations. The question of what effect, if any, early intervention would have had on this plaintiff is not a question directly addressed by the guidelines. As well, it is necessary to keep in mind that scientific and legal concepts of causation are different. 595 I draw from the guidelines the following propositions:

[220]

Would early intervention have made any difference in the case of the plaintiff? 599 This was an issue upon which the experts were not agreed. The research did not answer the question because "the jury was still out". 600 In undertaking any analysis of this question, it is important to bear in mind that, as the psychiatrists are all agreed, the plaintiff had a complex mix of symptoms and had comorbid conditions with his PTSD symptoms, which included those which are typically seen on both of the anxiety and depression spectrums of disorder, as well as being symptoms of PTSD. 601 The psychiatrists were all of the opinion that early intervention which addressed the symptoms of the other comorbid disorder spectrums was likely to have had some beneficial effect on the plaintiff's psychological wellbeing. 602 However, the disagreement amongst the psychiatrists arose in the area of the likelihood of early intervention having a beneficial effect on the plaintiff's suffering from symptoms reflective of PTSD. 603 It is necessary to note at this point in the analysis a fundamental difficulty in the interaction of the NICE guidelines, the expressed opinions of the experts and the manner in which the plaintiff's case was presented. 604 The short context to be recalled in considering this issue, is that Hussein's threat occurred on 25 December 2003. The plaintiff experienced a variety of symptoms leading up to his consultation one month later with Dr Placanica when he received medications. Thereafter, he neither sought nor received further medical assistance. 605 In the manner in which the plaintiff's case was presented, there was no formulation of precisely when, or at what stage in the plaintiff's reaction to Hussein's threat, it was said that early intervention should have occurred. It was not clear whether it was said that the plaintiff should have been seen by a mental health professional before or after the consultation with Dr Placanica. If before, should it have been in the first, second or third week after the threat was received? If after the consultation, then should it have been after the course of medication finished or before then? 606 The expert opinions similarly did not descend to the detail of when the early intervention ought to have been provided. 607 Since the issue to be determined here involves a comparison between what the plaintiff's course was, with what, hypothetically, his course would have been had early intervention occurred, the plaintiff's case would have been significantly advanced by attention to a greater precision in identification of when, or else the circumstances which were appropriate for, the commencement of early intervention. 608 However, it is necessary, in the absence of any such precision, to take the view that the plaintiff's case encompassed all possibilities for early intervention from immediately after the threat was received until at least six months had passed. 609 I very much doubt that intervention after six months would fall within the contemplation of the experts who gave evidence, or the NICE guidelines, as amounting to "early" for the purposes of assessing effectiveness. 610 Dr Mayne, of all of the practitioners, was perhaps the best placed to make an assessment of the likelihood of the plaintiff benefiting from getting treatment. That is because he had seen the plaintiff on many more occasions than had either Dr Phillips or Dr Brown who had each seen the plaintiff on only one occasion. He had therefore had a much better opportunity to come to know and appreciate the plaintiff's personality. 611 As well, Dr Mayne had attempted to provide the plaintiff with some treatment and was able to observe what effect if any that treatment had. 612 Dr Mayne noted the difficulty which the plaintiff had had in attending to treatment which he recommended, and then said this (T399.39): "I don't think we would have had that sort of difficulty had this treatment been available to Mr Benic at a much earlier stage in the treatment. Obviously the other aspects of treatment, the antidepressant medications and so forth, would have been offered at an earlier stage too. Mr Benic has had, I would have to say, a limited response to the combined treatment that I have been able to offer him at this stage." 613 Dr Phillips expressed the view that the plaintiff would have benefited from earlier treatment. At T400.11 he said: "Having got there, if there had been reason to treat, then I think, like Dr Mayne, I believe that treatment at an earlier stage would have been much to his benefit and indeed protected him significantly against the retraumatising experience which he had in the fruit shop a little later." 614 Dr Brown was not so certain. Although she accepted that there was a possibility that earlier intervention would have given rise to a better outcome, she was not prepared to express a categorical opinion that in the plaintiff's case the symptoms would have been alleviated. 615 The difference between the three experts was effectively where along the spectrum of possibilities they expressed their view. 616 Both Dr Phillips and Dr Mayne expressed their view that it was more than 50% likely, or else more probable than not, that early intervention would have made a difference in this case. Neither of these doctors was able to articulate their basis for that conclusion. I was left with the clear impression that their opinions were really their best guess, rather than scientifically based, or assessed by reference to research and experience. 617 Dr Brown accepted that medication may have assisted with the depression and anxiety symptoms but did not accept that cognitive behavioural therapy would have had any reasonable prospect of success. She said this (T400.43): "The clinical psychologist who sits down with someone in this situation would try to talk to them about where their fears are excessive, and to encourage them to go out into more normal situations and confront the fears. I believe Mr Benic would have had a great deal of difficulty in doing this, because at no stage has he been able to accept that his fears are unrealistic, despite the passage of time and despite nothing having eventuated. So it would be very hard to make use of the type of therapy that is a fundamental part of treatment of obsessive post traumatic stress. Medication may have assisted with the depression, but until the avoidance behaviour and the hypervigilance was addressed, Mr Benic was unlikely to make significant improvement." 618 In cross-examination Dr Mayne expressed some reason for concern as to whether early intervention would have been successful in the case of the plaintiff. But he concluded by expressing this opinion (T408.30) "I would take you back to the issues we discussed earlier of the comorbidity with depression and generalised anxiety. I do think that that symptom complex could have been dealt with by medication at an early stage, and that that would have prevented the PTSD from becoming as entrenched as it has become." 619 This is an area in which it is hard to be dogmatic or certain. There needs to be a degree of professional judgment and experience exercised. 620 I tend to the view with this plaintiff that, had he been treated earlier, it is likely that some of his symptoms, particularly any on the anxiety spectrum, would have been ameliorated. However, that is a very different question to the one which the plaintiff must address which is whether he has proved that but for the failure to provide early intervention he would not have suffered PTSD. 621 The factors which favour the view that early intervention would have been successful include (but are not limited to) the known effectiveness of medication for addressing the plaintiff's symptoms which fell on the anxiety/depression spectrum, and the long experience of Dr Mayne and Dr Phillips that axiomatically it is better to treat psychiatric illness early. 622 The factors which tell against the view that early intervention include (but are not limited to) the absence of any clear pattern emerging from the research that demonstrate a clear beneficial effect, and also the plaintiff's lack of benefit from the cognitive behavioural therapy provided by Dr Kearney. 623 I do not find this question easy of resolution. But the onus falls on the plaintiff to demonstrate, not that early intervention might have been successful, but that, on the balance of probabilities it would have been successful. I cannot be so satisfied. The plaintiff has not provided causation as required by s 5D of the Civil Liability Act.

[223]

Damages 629 It is also appropriate that I deal with the issues raised on damages, even though I have found that the plaintiff will not succeed on liability. In considering what my assessment of damages is, I will have regard to the request by both parties that, in so far as economic loss is concerned, the most efficient course is for me to state my findings and then allow the parties to engage in the relevant calculation which would flow from those findings. 630 The plaintiff's claim for damages is for post traumatic stress disorder and associated psychiatric conditions. 631 Part 3 of the Civil Liability Act which relates to Mental Harm is therefore relevant. In accordance with the definitions in s 27 of the Civil Liability Act, the plaintiff's claim is that he suffered "pure mental harm". 632 Section 31 is of relevance as it is in the following terms: " 31. Pure Mental Harm - Liability Only for Recognised Psychiatric Illness There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness." 633 The terms of s 32, which relates to the nature of a duty of care which may be owed "… not to cause the plaintiff mental harm …", calls up for consideration the issue of what a person of normal fortitude might in particular circumstances suffer by way of recognised psychiatric illness of reasonable care were not taken. 634 Neither party submitted to me that the provisions of s 32 were relevant or applicable in this case. No doubt this was because the parties did not regard this as a case in which it was claimed that the defendant had caused the plaintiff mental harm. Rather the case was put upon the basis that a failure to provide appropriate early intervention did not prevent the harm caused to the plaintiff by the threats of Hussein. 635 Accordingly, before awarding any damages I need to be satisfied that the plaintiff has suffered an injury which consists of a recognised psychiatric illness. As indicated earlier, I am satisfied that the plaintiff's condition is a recognised psychiatric illness and that he suffers from the consequence of it. 636 Part 2 of the Civil Liability Act also applies to the plaintiff's claim for damages. Section 11A(3) forbids a court to award damages contrary to Part 2. 637 Section 16 of the Civil Liability Act provides that there are certain restrictions on the award of damages for non-economic loss. The first (s 16(1)) requires that the severity of the non-economic loss be at least 15 per cent of a most extreme case. The second obligation imposed by s 16 is to have regard to a table therein, which provides for a graduated award of damages depending upon a determination of the severity of the non-economic loss.

[224]

Plaintiff's Medical History 638 As recorded earlier in this judgment, on 23 January 2004 the plaintiff attended Dr Placanica's surgery where he told his general practitioner that he felt anxious, hypervigilent, and unable to sleep at night. Dr Placanica diagnosed anxiety and prescribed a sleeping tablet for short term use. 639 Although there were a number of other occasions over the next two years when the plaintiff sought advice and treatment from Dr Placanica, he made no further complaint of a kind which could be associated with stress or anxiety, until 13 April 2006. On that day he presented to Dr Placanica's surgery with trouble sleeping. Dr Placanica's notes (Ex 4) record: "Says he can't sleep as he bumped into a chap who threatened to kill him years ago. He remained hypervigilant and anxious, irritable, and again was given some Stilnox, for the short term, to help sleep." 640 He returned to see Dr Placanica on 4 May 2006. Dr Placanica noted as follows: "His hypervigilance continues. There is an increase in his agitation and he worries a lot about this 'person' who had previously threatened to kill him. Peter says he carries a gun around most of the time, has had his mailbox vandalised twice recently and is worried this 'person' may attack him. He feels he can't relax, is very worried, can't sleep, feels helpless, and he has reported to supervisors. He was diagnosed with post traumatic stress disorder and advised to get some psychological counselling". 641 About two months later on 7 July 2006, the plaintiff returned to consult with Dr Placanica. Dr Placanica's notes record on this occasion: "Peter says he is off work on stress leave. He is now taking Lexapro at 10milligrams in the morning, and Normison 10milligrams at night. He reports rightsided abdominal pain, no specific relationship to movement or food or meals, and an ultrasound of his abdomen was unremarkable." 642 Lexapro is an antidepressant medication which falls within a group known as Selective Serotonin Reuptake Inhibitors (SSRIs). Normison is medication designed to assist with sleep. 643 Prior to the last visit Dr Placanica, to which I have just referred to, the plaintiff had been referred to Dr Keith Mayne, a consultant psychiatrist, by Dr Placanica on 4 May 2006. He first attended a consultation with Dr Mayne on 8 May 2006. He has continued to see Dr Mayne from time to time for treatment since that date. 644 At that time, Dr Mayne commenced psychiatric treatment with counselling, cognitive behavioural therapy and antidepressant medication. In his report of 23 August 2006 (part of Ex TT), Dr Mayne expresses this opinion: "Mr Benic suffers from Post Traumatic Stress Disorder. He is severely disabled by his condition and is making little progress with treatment. He is not fit for operational police duties. On the balance of probabilities he is unlikely to become fit in the future to perform these duties. His psychiatric condition is directly related to his work as a Police Officer." 645 As I have earlier indicated, I accept, certainly at this time, the diagnosis of Dr Mayne that Mr Benic suffered from a post traumatic stress disorder. This is a recognised psychiatric illness and therefore the relevant threshold has been crossed. 646 In a report of 13 April 2007 (part of Ex TT), Dr Mayne expressed these views about the plaintiff: "Mr Benic has improved to some extent with treatment but is by no means well. Treatment is continuing and further adjustment and changes to his medication and treatment are occurring. His prognosis is uncertain." 647 Dr Mayne expressed the opinion at that point in time that the plaintiff was then unfit for work. 648 In a further report of 3 June 2008 (part of Ex TT), Dr Mayne noted that he had recommended to the plaintiff that he should have a formal course of cognitive behavioural psychotherapy. Of the attempts of the plaintiff to engage with such therapy, Dr Mayne said this: "Such was the severity of Mr Benic's illness, together with his fearfulness and paranoia that he did not feel able to engage with any other therapist either on an individual basis or as part of a group therapy programme". 649 Further on in that report, Dr Mayne noted that Mr Benic had been unable to engage in further therapies which could be of assistance to him but then said that he had referred the plaintiff to see Dr John Kearney, clinical psychologist, in May 2008 for assessment. Of this process he said: "He attended on one occasion with Dr Kearney. Dr Kearney reported to me that 'he was very disturbed by the consultation and may not return'. Hopefully, individual expert help will be of assistance, but I remain very doubtful that Mr Benic will be able to engage in a group therapy program at any stage." 650 I note that no report from Dr Kearney was tendered in evidence before me. 651 It appears from the evidence in the proceedings that the plaintiff has continued to consult with Dr Mayne who informed the court that he had seen the plaintiff on over 50 occasions.

[225]

Prognosis 652 In broad terms the doctors were again agreed on the plaintiff's prognosis, namely that he would require treatment into the future. They thought he would improve with therapy and recommend that he have some. 653 Clearly, the plaintiff has not been able to cope with effective cognitive behavioural therapy. Dr Mayne's evidence and reports make it plain that an attempt was made for the plaintiff to undergo this form of therapy but it was unsuccessful. He has not attempted to revisit the issue because of the difficulties which it created in the past. 654 All experts are agreed that one stressor presently affecting the plaintiff's likelihood of recovery is the existence of this litigation. 655 All doctors were agreed that the plaintiff was unfit, permanently, to go back to work as a police officer, or to do work associated with police work such as security work and other like employment. I accept this assessment. 656 Dr Phillips expressed the view that whilst the plaintiff would be permanently unsuited for any form of work with the NSW Police Force, he thought it possible that he would be suitable for retraining and for some form of relatively non-stressful work in the future. 657 Dr Mayne and Dr Brown thought that the plaintiff was capable of going back to work in the field in which he had been working in addition to his police work, namely organising for and assisting with the carrying out of house renovations or property renovations. All doctors thought that a good outcome, or a sensible suggestion which ought be pursued, was to explore the capacity of the plaintiff to work in a gymnasium either as a trainer or other form of instructor or worker at a gymnasium. 658 On that question, Dr Mayne said "I think it is a very reasonable suggestion and one that ought be pursued". Dr Brown said "I think this would be a good outcome and I think it could have some therapeutic benefits in reducing some of the avoidance behaviours". Dr Phillips said "I like the idea very much, but I am pretty cautious about it" (T417.10-417.24). 659 I have formed the opinion that the evidence satisfies me that once the additional stressor of this litigation is removed by the delivery of judgment, and the plaintiff continues with such treatment as Dr Mayne provides, then it is likely that he will resume a capacity to work fulltime, in a role such as being an instructor in a gymnasium or taking other work associated with the fitness industry. As well, he would be fit to resume undertaking income producing work by means of organising for and assisting with the renovations of domestic properties as he has done in the past. 660 I would provide a period of three years after the conclusion of this litigation before the plaintiff's capacity would be entirely restored to that of exercising his earning capacity as an instructor in a gymnasium. 661 As I have indicated earlier, the diagnosis of the plaintiff with post traumatic stress disorder was, at least after April 2006, agreed to by all of the specialist psychiatrists who gave evidence before me. 662 In evidence, the plaintiff gave very little description about his ordinary activities in the course of a day. It is clear that he now has a stable relationship with his partner, Ms Jackson, and that they have two children. Ms Jackson described the plaintiff as a good father. There is no evidence that the plaintiff's day to day functioning, such as attending to the ordinary things of life, was significantly impeded. The extent of his current hypervigilance was not explored in detail and I was left with the impression that the plaintiff's state was improving albeit gradually. 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. 664 Equally, I need to bear in mind that since the time of the threats the plaintiff has continued to undertake some of his real estate activities, he has continued to attend regularly at the gymnasium and undertake exercise, he has managed to travel oversees on at least two occasions, and he has met and developed a stable domestic relationship with his partner which has been productive of two children. 665 Whilst there does seem to be some disruption of the plaintiff's social life, in the sense that he has not gone out perhaps as much as he once did, the evidence does suggest however that he is still able to engage in social activities, he continues to provide support and friendship to his parents and sister and their families respectively, and his social life continues to exist, albeit in a lesser form. 666 As well, whilst his PTSD is likely to continue, as I have earlier said, I think that the condition will improve over time and become less troublesome. In short, based on the medical evidence which I have heard I think that the plaintiff's worst days are likely to be behind him. 667 The plaintiff is now 47 years of age. On the basis of the life expectancy tables, the plaintiff's life expectancy is about 38 further years. 668 I take all of those matters into account and I assess the severity of the claimant's non economic loss as being one-third of a most extreme case. 669 The appropriate sum in accordance with s 16 of the Civil Liability Act for such an assessment is 33% of a most extreme case which amounts to $165,000.

[228]

(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." 675 In order to make an award of damages for future economic loss, it is necessary for the plaintiff to satisfy me of his most likely future circumstances but for the injury. 676 It is appropriate to sketch the background of the plaintiff. 677 He completed high school in 1980 and then undertook and completed two years of a four year apprenticeship in electronic engineering. 678 He became a member of the NSW Police Force on 5 January 1987. The evidence does not reveal what the plaintiff did in the whole of the time between leaving school and becoming a police officer, with the exception of the years he spent as I have described above. 679 From 1987 through to 1992 the plaintiff spent his time doing general duties and detective work, essentially in the Maroubra and Mascot areas. In 1992, the plaintiff joined the NSW Police Special Branch and following disbandment of that unit in 1995, joined the group which became the CTCC. 680 According to the evidence of Kylie Cannock (Ex 11) the plaintiff was promoted to the rank of senior constable on 10 April 1995. He remained at that rank until he was discharged from the NSW Police Force. He held that rank when took up his position as a close personal protection officer for the Premier, he was a senior constable. 681 On 27 October 2002, the plaintiff qualified with an assessment score of 98% for promotion to sergeant. On 3 September 2004, the plaintiff qualified with an assessment total of 90% for promotion to inspector. 682 Between 1989 and 2002 the plaintiff attended and completed a variety of courses relevant to his occupation. The detail of those can be found in Ex R. 683 However, whilst he was on secondment to the Premier's Department, the plaintiff was appointed temporarily to the rank of inspector pursuant to s 66 of the Police Act. Accordingly, at all relevant times the plaintiff was paid as though he were an inspector with the ordinary incremental progressions available within that rank up to level 4. 684 The details of the police promotion system are fully set out in Ms Cannock's statement and I do not need to describe them here. Ms Cannock was not cross-examined and there is no reason for me to reject any of her evidence. I do not. 685 It is apparent from her evidence that the plaintiff was eligible to be included on a promotion list for substantive promotion up to and including the rank of inspector. He was adequately qualified for that and had received good marks. 686 Whilst ever the plaintiff remained working for Mr Carr, he did not apply for any promotion although there were many advertised positions for promotion to the position carrying a substantive rank of sergeant or inspector. 687 In 2006, when the slightly amended 2002 promotion process was in place, there were about five times the number of applications received than vacancies existed for promotion to sergeant. There were about nine times the number of applications received than vacancies existed for promotion to a substantive position of inspector. 688 In 2007 the position was approximately the same. 689 In 2008, as a consequence of a complete rewriting of the 2002 promotion process during 2007, that position changed drastically. In 2008, there were 77 inspector vacancies filled from 102 candidates on the promotions list for inspectors. There were 176 sergeant vacancies filled from the 251 candidates on the promotions list for sergeant. In 2009, under that process, there were 51 inspector vacancies filled from the 104 candidates on the inspector promotions list and 97 sergeant vacancies filled from the 323 candidates on the sergeant promotion list. 690 What this demonstrated was that under this new promotion system, it was far more likely that an applicant for promotion would succeed, than it was under the 2002 scheme. 691 Mr Peter Walsh, who was a retired senior assistant commissioner, gave evidence (Ex MM) in which he said that he knew the plaintiff for 15 years prior to 2003 when he retired. He said that he had considerable experience in appraising personnel under his command to determine their suitability and potential for advancement and that he had served upon various promotion panels from which position he had to assess candidates and choose the appropriate person for the position being advertised. Of the plaintiff he said this: "… I feel he had the necessary potential and ability to progress to a commissioned rank within the NSW Police". 692 Mr Madgapoulos gave evidence (Ex NN) in which he reasoned that the plaintiff had the potential necessary to succeed in any endeavour which he undertook. He went on to say that his observation of the plaintiff was that he wished to emulate Mr Magdapoulos's career path which involved retiring as a chief superintendent. He also included this statement: "I consider that these various roles give me the experience to make competent assessments and comparisons between different officers to determine an individual's potential for advancement and their likely promotional prospects. Obviously the accuracy of such prediction can only be speculative and it will be influenced by the ambition and determination of the person being assessed. Some officers reach a rank or position in which they feel comfortable and perform well and prefer not to seek promotion or transfer beyond that level." 693 The defendant tendered evidence (Ex 25) which detailed the average age of police officers at the time of retirement, where they had not retired as a result of any medical condition. In the period from 2006 to 2009, the average age varied between 56.45 years and 59.30 years. Across the ten year period from 2000 to 2009, it suggests that the average age of retirement is 57.347 years. 694 Ms Jackson said in her statement (Ex GG) that when she took up a relationship with the plaintiff she anticipated that he would be a career police officer. 695 Although the plaintiff gave no specific evidence on this matter, it seems to me to be likely that his partner's view was influenced by what he had told her. I think it likely that, assuming he had been uninjured, the plaintiff would have remained in the police force until he retired at the current average age of 58. 696 The real debate between the parties centred upon the likely rank at which the plaintiff would have continued to be employed whilst ever he was in the police service. As I have indicated earlier, the plaintiff's substantive rank was that of senior constable. When he commenced working in close protection, he maintained that rank. In addition to his ordinary pay as a senior constable the plaintiff was entitled to be paid overtime for all the work which he did in addition to his standard hours. Having regard to the nature of the job which he was doing, the plaintiff would commonly be entitled to overtime on most, if not all, of the days upon which he worked. 697 During the course of this period, the plaintiff was appointed an acting inspector pursuant to the provisions of s 66 of the Police Act. This appointment meant that his base rate of pay increased significantly above that which he was being paid as a senior constable. However, as an acting inspector, the plaintiff was no longer entitled to overtime and hence received the standard rate of inspector's pay. 698 In re-examination the plaintiff was asked about this issue. This is the evidence he gave (T240.48ff): "Q. I asked you some questions about the pay you were to receive prior to your becoming a temporary inspector? A. That's correct. Q. And you gave an answer about being 20 to $25,000 more than that you were receiving as inspector? A. That's correct. Q. On what basis did you give that answer? A. If you worked the same hours you would be earning between 20 and $25,000 more than the rank of inspector." 699 It seemed to me that the nature of the task of close personal protection, whether of the Premier of NSW or any other person entitled to protection, necessarily meant that whoever was involved in undertaking those duties would work a good deal of overtime. That is because, the person whom they are protecting would usually engage in a full day's work with protection starting at the first time during the course of the day, when the protected person ventured out of their home, and concluding with the return to home of that person in the evening. 700 It seems to me that the likely unfolding of the plaintiff's police career was that, whilst ever he remained in close personal protection, he would have received an income equivalent to the income of an inspector. That is because either he would have been an acting inspector, such as he was when deployed to work for the Premier's department, or else because he would have undertaken duties as a senior constable and received overtime in respect of those duties. An appropriate level of income which reflects the plaintiff's lost earning capacity between the date of his retirement and the date of this judgment is that which would be earned by an inspector. 701 As has earlier been indicated, the plaintiff undertook his promotional exams and returned very good results. Such evidence as there is about the plaintiff's suitability for promotion to a substantive rank of inspector suggests that it is likely at some point in his career he would have reached that rank. 702 The evidence is not sufficient for me to be satisfied that on the probabilities the plaintiff would have proceeded past that rank, at any time prior to his retirement, although there was a possibility that he might do so. 703 However, s 13 of the Civil Liability Act requires me to be satisfied about the claimant's most likely future circumstances but for the injury. 704 In my opinion, the plaintiff was likely at some point to seek promotion to inspector. He was entitled to do so directly because he held the rank of acting inspector. He was a highly regarded individual and I think it likely that he would have reached that rank substantively by the time the proceedings were heard. Accordingly, for the future his most likely future circumstance was that he would have continued to work in the police force to age 58 in the rank of inspector. I would be prepared to make an award of damages for future economic loss based upon that likelihood. 705 I am also required to determine an adjustment to the future economic loss that would have been sustained by reference to the: "… percentage possibility that the events might have occurred but for the injury". 706 At the time of trial the plaintiff was 46 years old. Accordingly, his future period represented about 12 years from the time of this judgment. I need to have regard to the percentage possibility as to the likelihood of the future events, ie, his becoming and remaining an inspector until the age of retirement and of the likelihood of those events occurring had the injury not happened. 707 Conventionally, when addressing future economic loss prior to the introduction of the Civil Liability Act, courts made allowances for 15 per cent for adverse contingencies and vicissitudes of life. Since the introduction of the Civil Liability Act, the appropriate place to make an allowance against future economic loss for such adverse contingencies and vicissitudes is in determining this percentage pursuant to s 13(2) of the Civil Liability Act. 708 It seems to me that an allowance in the order of the conventional sum of 15 per cent would be the appropriate figure in the circumstances of this case. 709 Accordingly, I regard the likelihood of the plaintiff having a full working career, and suffering future economic loss of the kind to which I have referred, had he not been injured, as 85 per cent. 710 The parties have requested that once these findings have been made, that I allow the parties to calculate what sum of money would be reflected by such a loss. 711 I have indicated that it would be appropriate in due course for the parties to bring in short minutes of order reflecting this figure.

Peter Steven Benic v State of New South Wales

At a glance

Court

Decision date

Before

Source

Judgment (233 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (51)

Cited By (45)