Porto v SAS Trustee Corporation - [2014] NSWDC 15 - NSWDC 2013 case summary — Zoe

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Porto v SAS Trustee Corporation

[2014] NSWDC 15

District Court of NSW|2013-10-30|Before: Neilson J, Geraghty J

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Court

District Court of NSW

Decision date

2013-10-30

Before

Neilson J, Geraghty J

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

INTRODUCTION 1The plaintiff, Mr Robert Porto, is a former constable first class of police. He was attested as a probationary constable of police on 27 March 1987 and thereupon became a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906 ("the Act"). On 31 March 1995 the plaintiff submitted his resignation. That resignation took effect on 28 April 1995. The plaintiff withdrew from the Police Superannuation Fund his contributions to that Fund, and applied for, and received, pro rata long service leave. He made no application at that time for a medical discharge. 2He made such an application on 5 August 2008, that application being received by the defendant on 7 August 2008. On 24 September 2009 the Police Superannuation Advisory Committee ("PSAC") established under the Act, acting as delegate for the defendant, determined that at the time that the plaintiff's resignation came into effect he had been incapacitated for the duties of his office on account of an injury to his left knee and post-traumatic stress disorder with depressive features ("PTSD"). On 8 October 2009 the Commissioner of Police determined that the suffering by the plaintiff of the infirmity in his left knee was caused by the plaintiff's having been hurt on duty. However, the Commissioner of Police rejected the allegation that the plaintiff's PTSD was caused by his having been hurt on duty. As a matter of law the determination by the Commissioner of Police on 8 October 2009 concerning the plaintiff's left knee entitled him to a hurt on duty pension ("HOD pension") under the Act. 3By letter dated 14 December 2009 the defendant attempted to advise the plaintiff of his rights and commenced paying the plaintiff's pension to him. I say that the defendant attempted to explain to the plaintiff his rights as the plaintiff says that he did not receive the letter of 14 December 2009, an issue to which I shall in due course return. The plaintiff did not, shortly after 8 October 2009, apply for any increase in his pension entitlement. 4On 25 February 2010 the plaintiff commenced proceedings in this Court against the Commissioner of Police seeking to have the condition of PTSD certified to have been caused by the plaintiff's having been hurt on duty when he was a serving member of the Police Force. At a callover on 8 November 2010 I was told and I noted that the plaintiff's claim against the Commissioner of Police had been settled. On 15 November 2010 a consent order was made by this Court. That consent order contained an erroneous date. It provided as the "deemed date" for the occurrence of the plaintiff's PTSD 30 April 1995, when it ought to have been 28 April 1995. That was later corrected by a consent order filed in the earlier proceedings. However, it can be seen that as at 15 November 2010 the plaintiff had both his knee injury and PTSD classified as hurt on duty. 5On 20 April 2011 the plaintiff signed an application for an increase in his HOD pension. However, that was not received by the defendant until 14 December 2011, nearly eight months later. That delay is completely unexplained. On 26 November 2012 the plaintiff commenced these proceedings alleging that he was aggrieved by the determination of the defendant to increase his HOD pension to 90% of the attributed salary of his office. The relief claimed in these proceedings is an increase of the plaintiff's HOD pension to 100% of the attributed salary of office 6There are a number of irrefragable facts which bind me. The first set of irrefragable facts is that at the time that he resigned the plaintiff was incapable of exercising the functions of a police officer. The second set of irrefragable facts are that the two conditions, the condition of the plaintiff's left knee and his PTSD, were caused by his having been hurt on duty when he was a member of the police force. The next irrefragable fact is that the plaintiff was, at least from the time of the decision of the defendant, namely 26 July 2012, totally incapacitated for work outside the police force. The issue for my determination is the amount that ought be paid to the plaintiff pursuant to s 10(1A)(c) of the Act. The relevant part of the paragraph is this: "if the disabled member is totally incapacitated for work outside the police force and, in the opinion of STC, the member was hurt on duty because the member was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment, an additional amount that is: (i) not less than 12.25 per cent and not more than 27.25 per cent of the member's attributed salary of office, and (ii) commensurate, in the opinion of STC, with the risks to which the member was so required to be exposed, ..." 7The basic HOD pension is 72.75%. A finding of total incapacity increases that pension to 85%. Accordingly, the abnormal risk benefit is any amount between 0.1% and 15% of the attributed salary of office. The current defendant determined to award the plaintiff one-third of the amount available under par (c).

[2]

THE PLAINTIFF'S ALLEGATIONS: 8In the statement of claim as originally filed the plaintiff relied upon three events. The first event occurred on 8 June 1987 at a bottle shop at a hotel in Strathfield. The second event is alleged to have occurred in or around November or December 1987 and occurred at the Redfern Police Barracks when the plaintiff was undergoing a course to qualify to be attested as a constable of police. The course was between 16 November 1987 and 11 December 1987 and, if the plaintiff's recollection as to the timing of the event be correct, the event occurred on 8 December 1987. The third event originally pleaded occurred on 1 October 1992 when the plaintiff was giving chase at Villawood to offenders who had conducted an armed hold-up at the Villawood Bus Depot when the plaintiff was climbing over a fence and fell awkwardly injuring his left knee. 9On the first day of hearing, 23 October 2013, I granted leave to the plaintiff to add three further events. The dates of two of those events needed to be further amended. After those further amendments the three further events are one occurring on 25 June 1988 when the plaintiff attended a house in Auburn and observed the body of a deceased person who had suicided by stabbing himself in the bath. The plaintiff found it necessary to use a coat hanger as a hook to remove the plug from the bath to allow the bloody water to drain from the bath. The next event occurred on 6 January 1989 when the plaintiff was involved in the pursuit and arrest of persons who had attempted an armed robbery at the ANZ Bank at Bankstown. The third additional event alleged was on 24 June 1991 when the plaintiff was involved in the arrest of some offenders at Merrylands. During the course of submissions the plaintiff sought leave to add a further event which occurred on 24 October 1994 on the M4. However, for reasons which I gave at that time, leave to make that amendment was refused. Those reasons have been transcribed. 10As in many cases of this nature I am largely in the hands of the plaintiff in ascertaining the extent to which he was exposed to abnormal risks. In the present case, unlike many others, there has been a serious and concerted challenge to the plaintiff's credibility and reliability. That challenge has been, in many respects, successful. In giving these reasons I shall outline various conflicts of evidence and point to what are many implausibilities in the plaintiff's evidence and contradictions with other evidence and in particular, contradiction with contemporary written records.

[4]

The Strathfield Bottleshop Incident: 8 June1987 13The first event occurred on 8 June 1987. The plaintiff was working at that time with then Senior Constable Alan Leonard Robinson who, after 30 years in the NSW Police, retired in March 2005. Mr Robinson gave evidence in the plaintiff's case. I have no hesitation whatsoever in accepting Mr Robinson's evidence. He was stationed at Flemington between 1980 and 1995. He was unable to recall the time when the event in question occurred but he clearly had a good recollection of it. He and the plaintiff had been sent to the Strathfield CBD in order to obtain meals for prisoners held at the Flemington Police Station. At the commencement of his evidence, Mr Robinson suggested that the event occurred as he and the plaintiff were travelling to collect the prisoners' meals but at the end of his evidence he believed that they had already collected the meals which had gone cold in the back of the police vehicle that they were driving after the event now in question. The plaintiff's recollection is that they had already collected the prisoners' meals before the event occurred. Little turns on that but the probabilities are that the meals had already been collected. 14According to Mr Robinson, he and the plaintiff were travelling on the Boulevard near Strathfield railway station and the Evendon Hotel. He noticed a number of men on the footpath hailing the police. The vehicle was being driven by the plaintiff. The men on the footpath were calling out that there had been a stabbing in the hotel. The plaintiff pulled their vehicle to a halt near the Evendon Hotel. This hotel is on the north side of the Strathfield railway station. On the eastern side of that hotel is a bottle shop. When Mr Robinson and the plaintiff arrived outside the hotel there were a number of people talking at once. He was able to ascertain that a person had been stabbed in the hotel and the offender had left the hotel and gone into the bottle shop. The plaintiff got out of the vehicle with his baton, attaching it to his appointments belt, and was "virtually running towards the bottle-oh" when Mr Robinson found it necessary to call him back a little. According to Mr Robinson he said words to the effect of, "Hang on, wait for me." It is to be recalled that at this time the plaintiff had less than three months actual experience as a working police officer. Senior Constable Robinson then called for backup over the police radio network. He advised that a person had been stabbed and that further police were required as well as an ambulance. 15His evidence continued thus: "A. At that stage when I was satisfied that there was a stabbing I put my baton in my police belt, I withdrew my police revolver from my holster, as did Constable Porto, and went to the bottle shop ... [which is] a drive through bottle shop so its entrance at both sides: entrance and exit. As we got to the bottle shop Constable Porto was just a little bit in front of me. We saw the offender." He recognised the offender both from the description that had been given to him by members of the public and from the blood that was on him and from the knife that he held in his hand. Senior Constable Robinson described the offender as male, slightly built, between 25 and 30 years of age, wearing a flannelette shirt that was open and a pair of denim jeans. He also described him as having blood on his arms and on his shirt. He believed that the offender was holding the knife in his right hand. He described the knife as having a blade which was 20 centimetres long with a wooden brownish handle that could be described as a filleting knife. His evidence continued: "A. I said to him, to the offender, 'There has been a stabbing. You have got a knife in your hand. What is going on?' Q. Before you said that, was there any exchange between you or Mr Porto and the offender? A. Mr Porto just said, 'Stop, police' and that is when he turned around and sort of faced us. He was standing against the stanchion, which holds the roof up obviously, and to his back were cartons of either beer or a wine. I am not sure what ... Q. When you said to him there's been a stabbing and the other words of which you have given evidence, what were you doing with your hands? A. I had my - I am left-handed so my service revolver is in my left hand and I was in what they call a Weaver stance and I was pointing my revolver directly at the centre of mass, which is the centre of his chest. Q. What then happened? A. He said - I can repeat it. He said, 'I am not fucking scared. I'm not fucking scared of you and I'm not fucking scared of your guns.' ... I attempted to engage him in conversation, which I did, with the thought of just getting the knife off of him. He said to me, 'I'll give you the knife if you get - bring my girlfriend over here.' He obviously had some problems. Q. Did you respond? A. I said, 'We both know there's no way that's going to happen. Give me the knife. When we get back to the police station I will talk to your girlfriend and if she wants to come over I will try to make some arrangements.' Q. What was Mr Porto doing at this stage, if you know? A. Well, what - a situation of that type, which is critical, they have what they call a triangle of safety which means that you can be no closer than 3 metres, preferably a little bit more, away from the offender; one to the left or in front and one approximately 2 to 3 metres to the right or left, whichever the situation may be. So you have a triangle, so that if the offender does get one of you he won't get both and that is where Robert was, he was off to my right by about 2 or 3 metres and probably just to the side of me because whilst I was looking at the offender I could still see Robert in my periphery." 16Senior Constable Robinson then said that the plaintiff was to his right and also had his pistol drawn pointed at the offender. He then said that, "a few seconds later two more police arrived and entered the bottle-oh." They were also young men who had their pistols drawn. They also approached the plaintiff and Senior Constable Robinson. They did not go within 3 or 4 metres of the offender. They stayed a little further back with their pistols drawn. Those two police were from Burwood. Burwood is the police station that is closest to the Evendon Hotel and that hotel is physically within the boundaries of the Burwood patrol rather than the boundaries of the Flemington patrol. Mr Robinson then said that the offender became quite agitated and was lunging at the police with a type of stabbing motion. 17He then heard the click of the firing pin of the plaintiff's service pistol being drawn back. At the time the service pistol was a Smith & Wesson .38 calibre pistol containing six rounds. It was a double action weapon. When the Senior Constable heard that click he knew that the plaintiff only needed to apply 2 pounds of pressure to the trigger in order for the pistol to discharge. When he heard that he thought to himself, "oops". That indicated to him that he thought the plaintiff was quite prepared to discharge his weapon at that time. The Senior Constable then made an attempt to have the plaintiff calm himself somewhat by making a patting gesture to indicate not to do anything or to remain calm. 18He described the offender as being very erratic, as being angry and emotional. The Senior Constable thought that the offender was trying to work up the gumption in order to get the police to shoot him. The terminology used by Senior Constable Robinson was vernacular: "I thought he was trying to get the balls to go me so that [I would] shoot him." The offender was expostulating that he and his girlfriend had split up and as a result of that he had lost contact with his child and that life was not worth living anymore and similar sorts of things that the emotionally upset often complain about. The Senior Constable looked the offender directly in the eye and said, "before you can get to me I will shoot you." The evidence continued thus: "Q. Why did you give him that warning? A. Because I thought - you see, the thing is an offender who is 3 or 4 metres away with a knife can get to you in under a second. Q. What made you think he was even contemplating it? A. As I say, at times his demeanour - you just know. In the police when you've been in it for a long time, you get to know people's emotions and you know who will and who won't. Q. What was he doing with the knife while you were watching him? A. He was just - he had it in his right hand. I'm left-handed, so he had it in his right hand, I believe, and he was just thrusting it, clean at us. So he was sort of two and a half metres away and extended the point of the knife. Q. Did he respond to [your] saying, 'I'll shoot you before you get close to me'? A. He just said, 'I'm not scared of you blokes,' and with that, he just turned his wrist over and lifted his arm, turned his wrist and just drew the knife straight across and there was blood." It is common ground that the offender lacerated his left forearm with the knife. As to the effect of this laceration, Senior Constable Robinson said this: "A. The moment he cut himself the blood was just running profusely, like a tap. There was no, you know, pumping a yard in the air like you would imagine with arterial blood but the blood was just running out, like pouring a jug. It was just pouring out." 19The Senior Constable was then asked what was his reaction to this act of selfmutilation and he said this: "A. Before I reacted, the TRG which is the Tactical Response Group, they're the guys who were in black, turned up with a negotiator and the negotiator started talking to the fellow, the offender, and the TRG sergeant directed me out of the semicircle. They formed a semicircle around Bob and I and the offender. I moved. I re-holstered my appointments. I walked backwards between the ... TRG fellows and ... I was thinking, 'How can that guy still be on his feet?' because he had lost so much blood. I thought he would have gone down but he never did." Senior Constable Robinson said that when the TRG arrived they directed him in a very loud voice to, 'get out of here' and he backed off between two of them. He said that the plaintiff did exactly the same thing. The evidence continued thus: "Q. Did you observe what the negotiator then did? A. The negotiator tried to talk him down for a couple of minutes and he just said, 'This ain't working'. I remember that precisely, he got a can of OC spray from inside his pocket, reached across the bonnet of the car because he drove his car in - sorry - alongside where the TRG were and directly to the side of the offender. He reached across and sprayed him. He must have sprayed half the can to his face and then the TRG just jumped on him and disarmed him. Q. Whilst the negotiator was talking to him, was the wound continuing to bleed? A. It didn't stop, not for one second, not from what I could see. Q. What happened when all of this was over? A. When this was over the ambulance came in and attended to the offender. We were asked questions because clearly at this stage it had become a critical incident, very traumatic and we had a number of police turn up. The boss, superintendents, detectives who eventually took the matter over and they just asked us what happened virtually. We gave them some hand written statements, and I don't know, a couple of hours later, I suppose, it would have been an hour, we went back to the station with the cold prisoners' meals and I was talking to Constable Porto about how he was feeling. You know, I was a bit worried about when he put it on double-action and he was a bit nervous maybe. He wasn't quite, you know, threatened or anything like that. He was just a bit overcome by the situation I think because he was very new in the job and it was a very bad situation for someone so young to find themselves involved with so early." The Senior Constable went on to say that as far as he could recollect there was an "unofficial debriefing" at the end of the shift at a local hotel although he could not recall precisely if the plaintiff attended the hotel with him, but there was no evidence from the plaintiff that he did so. 20In his evidence in cross-examination Senior Constable Robinson was quite sure that the offender did not run towards the plaintiff and himself. He agreed that as he was talking with the offender that the offender was waving the knife mainly at Senior Constable Robinson but he did turn to the side and wave it at times at the plaintiff. He said that the two officers from Burwood turned up probably four or five minutes after the commencement of his confrontation with the offender and that from that time onwards he was very confident that the situation was under control. He was unsure as to whether the plaintiff might have been able to see these new arrivals because of the angle at which he was standing to Senior Constable Robinson. When asked whether the plaintiff got any blood on him, Senior Constable Robinson said that he could not say that he noticed any blood on him but he was certain that the plaintiff did not complain of there being blood on him and that he did not notice any blood in the plaintiff's hair. Senior Constable Robinson told the plaintiff on the way back to the police station that he had done his job correctly. The plaintiff did not complain to the Senior Constable about this event on any day after it occurred. Shortly after this event the Senior Constable was assigned to the detectives and did not work with the plaintiff on many other occasions thereafter. He estimated that the confrontation between the offender and the plaintiff and himself lasted 20 minutes. That evidence can be found in the transcript of 30 October 2013 at pp 20 and 21 and that is consistent with the plaintiff's estimate, although he thought it may have been, "At least 20 minutes." 21I turn now to the plaintiff's evidence about this incident. The plaintiff said that he stopped the police vehicle quickly, grabbed his baton, did not wait for his partner and ran towards "the trouble". He gave no evidence-in-chief of his partner, Senior Constable Robinson, calling him back and calling for him to wait. He then said this: "When I approached the bottle shop area and turned the corner, I noticed the bottle shop, I noticed lots of people that looked agitated moving around inside the bottle shop, and immediately a gentleman 23 years of age to 30 years of age ran out of the bottle shop directly towards me brandishing a knife. He seemed to have a blue and white shirt, chequered shirt on, some jeans and had a 20 centimetre serrated knife in his right hand, and the right hand was also covered in blood from the elbow down. The shirt was open and he started running at me with the knife." That evidence of the offender's running towards the plaintiff I do not accept. Later in his evidence-in-chief the plaintiff said that the offender ran towards him from 7 metres away until he got to a point where the plaintiff realised that he was in danger and he put his baton away and drew his firearm. In order to keep a distance between him and the offender he needed to move backwards because the offender was running at him, "full tilt". 22He then gave evidence-in-chief about the offender's mutilating himself and saw "spurting blood". The picture that the plaintiff wanted to paint was of blood spurting from the offender's forearm under pressure; that is, arterial blood. He then went on to say that the offender starting flicking the knife at him and that he was sufficiently close for the offender to spray blood on the plaintiff. He said he had his revolver pointed at the offender's head. He said this of his intention: "My intention was to protect myself and stop him from advancing and stabbing me. We had been trained many times that an offender can run 7 metres before you can react and remove a revolver, and stop that person from stabbing you, and we were well short of that distance at 3 metres and I realised that if he decided to run at me and stab, I had one shot only and it was a head shot to stop him with one shot and kill him dead to protect my own life." 23He then said that Senior Constable Robinson approached the plaintiff and the offender from behind the plaintiff and formed the triangle. He said that Senior Constable Robinson had not drawn his firearm. His firearm was still in its holster and "Senior Constable Robinson's life was in my hands at that stage, I believe." That is completely inconsistent with the evidence of Senior Constable Robinson. 24The plaintiff went on to say that the offender lunged at him "many times over the next 20 minutes". However, he did concede that he was mainly lunging at Senior Constable Robinson who was talking with him. The plaintiff went on to give this evidence: "Q. How did you find keeping yourself in the second-click position for that length of time? A. My stomach was cramped. I had difficulty breathing. I had difficulty keeping the gun on target. I had difficulty staying upright. I kept trying to move my position so there would be no collateral damage if I missed. It was a public area so I tried to keep something hard behind him like a brick wall so other people wouldn't be injured and we kept moving in a position so that if I had to fire there was no chance of me missing, (1), and (2) no chance of any collateral damage obviously from the public. Q. During this 20 minutes how did you feel about the possibility that you may have to shoot this man through the head? A. I certainly didn't enjoy the fact. I was frightened that I might have to do that. I was thinking - 20 minutes is a long time to be in that position and I imagined what it would be like to shoot somebody in the face from that distance. It was quite frightening, and at the time in my service I was so junior I didn't know whether I was justified to shoot or not to shoot, or to shoot or not to shoot, or when to shoot or whether I should be shooting. There was a great conflict going on inside me and I wasn't sure whether I should have shot him in those circumstances or continued to be patient and keep watching. Q. After 20 minutes what happened? A. After 20 minutes I was pushed aside. Somebody grabbed my arm and pulled me off to one side and I realised that the tactical response group had arrived. I was pulled out of the scene and then six police with chain mail gear and gloves and helmets and shields surrounded him from all angles. He was in the centre of the group. Q. What did you do with your weapon? A. With my weapon? I re-holstered my weapon. I couldn't stand. I was having trouble breathing. I walked away and sat down on the kerb. I had my hands on my head and I was just trying to get myself together to just breathe, and cramping was incredible, nothing I've felt before. Q. Why didn't you continue to stand? A. I was unable to, sir. Q. How long was it before you were able to stand? A. It was 15 or 20 minutes before I could get up." Shortly thereafter the plaintiff said that he did not believe what was happening but being a young policeman he watched and observed the aftermath because he wanted to learn what happened in a situation such as the one in which he was then involved. 25His evidence about the confrontation between the offender and the police negotiator is a little more detailed than that given by Senior Constable Robinson as it includes the negotiator offering a cigarette to the offender and bringing out his OC spray can by pretending it was to be another cigarette to be offered to the offender. However, the plaintiff went on to say that the offender passed out and that the offender "stopped breathing" and that it was "quite horrific" and that the offender was taken away in the ambulance with the paramedics "working on him to revive him." There are no such statements from Senior Constable Robinson. It appears to me that the plaintiff has exaggerated the aftermath. 26The plaintiff said that he went home at the end of the shift at 11pm "covered in blood". He said that he had blood sprays through his hair and on the side of his neck. It was also on his shirt which he removed as soon as he got home and washed. He said that after that event he felt a lot of stomach cramping and that it was very difficult to sleep. Indeed, he said that he did not sleep for several days and weeks and he had nightmares and cramping for a number of nights. 27At p 21 of the transcript of 23 October 2013 the plaintiff, in a lengthy answer, said that he was doing what he could to save his Senior Constable's life and agreed with the proposition that the Senior Constable appeared to have the position under control, in that he had not drawn his firearm and was talking calmly to the offender and the offender appeared to be responding to the Senior Constable. In other words, the plaintiff wanted me to believe that at no time did Senior Constable Robinson draw his weapon which is completely inconsistent with the evidence of Senior Constable Robinson. 28The plaintiff was asked in-chief whether he had any time off work after this incident and he was unsure but he appeared to accept that it would have depended on the roster. Eventually the plaintiff was to admit that he did not lose any time from work as a result of this incident. He acceded in-chief to the fact that his colleagues were very supportive and that the Senior Constable thanked him for looking after him and that the Senior Constable had faith in the plaintiff and that the plaintiff had "a reputation as a reliable, level-headed and sensible police officer". The plaintiff's evidence is full of such encomia of his own abilities and performances. In answer to questions put by me the plaintiff said that he did not make any complaint to anybody at the Flemington Police Station of feeling unwell on that night and he did not complain to anybody about having cramps in his stomach. 29In cross-examination by Mr Ower the plaintiff said that Senior Constable Robinson did not come up to his side and form the triangle within a matter of seconds. The plaintiff thought it may have been "approaching a minute". He then agreed, reluctantly, with the proposition that the Senior Constable took over: "Q. He has taken over the situation, has he? A. He got involved, yes. Q. He engaged the offender in conversation? A. Yes. Q. While he was doing that, he was pointing his revolver at the offender? A. No, he wasn't. Q. His revolver was holstered. Is that right? A. Yes, it was. Q. Is it the case that he waved to you in a motion indicating that you should calm down and put your weapon at ease? A. I never looked at him. I never took my eyes off the offender ..." The plaintiff then said that the offender mutilated his left forearm before Senior Constable Robinson came into the triangle. He said that it was only after the mutilation that Senior Constable Robinson came to the scene. That, again, is completely inconsistent with the evidence of Senior Constable Robinson. 30At p 80 of the transcript of 24 October 2013 the plaintiff said that the offender lunged at him five times but at p 84 he said it was perhaps four times. In an answer given on p 81 the plaintiff asserted, unresponsively, that his job was to protect Senior Constable Robinson because he was not armed because he had not drawn his firearm. That, again, is evidence that I cannot accept. At p 82 of the transcript the plaintiff said that when TRG turned up he was grabbed by the arm which startled him. He said he had no warning of their coming up and he initially thought the member of the TRG who grabbed him and pulled him to one side may have been another offender. That appears, with the utmost respect to the plaintiff, to be a gross exaggeration. At p 85 of the transcript the plaintiff likened the action of the offender at flicking him with blood from his knife as if he were a priest distributing holy water in the ceremony known as Asperges. 31At p 87 the plaintiff conceded that he did not have any sick time off work because of this accident. It did not stop him working. He did not go to have a blood test and he did not go to see any doctor. Stressing the point that the plaintiff did not take any time off work, Mr Ower put a similar question to which the plaintiff answered: "I am dedicated, my friend. I love the job." 32The plaintiff was then challenged about the fact that he did not give any history of this incident to Associate Professor Nicholas Glozier who provided a report to the defendant on 6 February 2012, a question that the plaintiff did not answer directly. At p 90 the plaintiff said that the closest police station to the scene of this incident was Flemington which is patently untrue if one merely looks at the street directory, and of course, inconsistent with the evidence of Senior Constable Robinson. The plaintiff even alleged that Flemington Police were responsible for the Boulevard and the Strathfield station area which, again, is inconsistent with the evidence of Senior Constable Robinson.

[5]

The Redfern Police Barracks Incident: December 1987 33The next event relied upon by the plaintiff is the incident at the Redfern Police Barracks at Bourke Street, Redfern which occurred on perhaps 8 December 1987. There is no documentary evidence concerning this event. It appears that nothing was ever put in writing about it. 34Each day of the four weeks of the training course was divided into a number of classes. The training started at 8am each day. The plaintiff believed that the incident in question happened on the last Tuesday of the four-week period. I know from the evidence of Detective Inspector Nash that the course commenced on 16 November 1987 and concluded on 11 December 1987 so the last Tuesday of the four-week period was in fact 8 December 1987. The plaintiff gave this evidence as to what happened: "A. ... Basically, days before we had a roster for that Tuesday and we were asked to prepare for two lessons in the morning starting at 8am where we were doing a weapons retention class. We were informed that we should arrive to wear certain clothing, which is to take our police uniform off, go to a T-shirt, pair of shorts, keep our police appointments on, all the webbing and handcuffs that we usually do, but the firearm as well, but remove the rounds from the firearm so we could then all, in a similar dress, we could move up to the oval and spend the next two and a half hours doing a weapons retention class. Basically, it was a wrestling situation and an educational situation where we were shown video of prisoners practising running up to other prisoners and trying to disarm them with a fake firearm, and we were shown that criminals practised this in gaol, and that was the reason why we were doing these classes, so if we had an offender run to us, we knew that - we could understand the severity of what would happen if that firearm was removed from our possession. Q. At what time did you first attend the academy that morning? A. At 7.30, but 7.40 I started to dress down. We went into the locker area, which is a large room containing probably 30, 40 lockers, no windows and my locker was adjacent to the other entry into the locker complex, and Sean Preece's was directly next to me on the left. At that stage, I opened my locker. We changed out of our street clothes or our police uniform, and had my shirts, T-shirt on, I had my appointments on and I had my firearm open. The way we had been taught, the firearm opens, we put two fingers around the barrel and then we hit the ejection rod, which is a rod that removes all six rounds at once, that is the accepted way to unload the gun, to push that rod and then the six rounds then are removed and we are all expected to remove all our rounds and be available for the weapons retention class at 8am with unloaded firearms." "Q. Was it a practice for anyone to ask you about your gun at the weapons retention program? A. There was a - yes. When the weapon was actually - when we approached the oval and we all went there with our weapons we were stood in a straight line and asked to produce our weapons, open them and show them, and just hold them out in front of them, and show the instructor, who would inspect each weapon one at a time, and if that weapon was clear of rounds he would tap you on the shoulder, say, 'clear' in a loud voice and then you are allowed to re-holster the weapon. After which point everyone that was physically checked and re-holstered, then we could commence the class. It was a way of making sure that everyone was unloaded." 35The plaintiff then said that on the morning of this Tuesday he was having a conversation with Sean Preece, who had the locker next to his, as to whether the weather was clear enough to go out on the oval and do the lesson. The plaintiff said that it had been raining on and off during that morning. The evidence continued thus: "A. So I turned around and said, 'Is it clear? Do you think we will be out there today?' The next thing I felt was - I was actually looking this way towards Sean Preece, which was on my left, his locker door was open as well and he was doing the same thing I was, undressing, I suspect, and as I turned I felt something snatch out of my hand, which was my firearm, I felt pain to my right hand and then I looked towards him because he pulled quite hard to pull it out of my hand, my body spun to the left a little bit towards him and I saw this arm move and I heard the firearm click and I recognised that click as the firearm clicking when the barrel is closed, and then the next - instantaneously I felt a very hard, like, the end of a broom, if you like, being pushed into my stomach hard and it caused me pain. Q. Was it a broom? A. It wasn't a broom, sir. Q. What was it? A. I assumed immediately that it was my firearm. Q. How did you know? A. Because I had it snatched out of my hand and then I heard that click because that click is, I know that click, and it's my firearm that makes that sound. It's a very distinctive sound, and within half a second of that occurring I felt intense pressure being pushed into the left-hand side of my lower body, in between my hip bone and my belly-button. It pushed in hard. Q. What then happened? A. I thought I was going to die, instantly I knew what was happening, I didn't know why it was happening, but immediately assumed that something horrible was happening and I tried to swivel away and push my hands down. I saw his hands holding it ... Q. Holding what? A. Holding my firearm into my stomach and I put both my hands down to deflect and I sort of turned away but my head went down to take the impact because I thought I was going to be shot and the firearm discharged. I heard a loud bang and it was very loud in that building, in that room, and my ears were ringing, and they still ring to this day as a result of that. The firearm discharged within 30 centimetres of my ear. At that stage, I started pulling my clothes up and feeling around my body with my fingers, and thought I had been shot but couldn't feel it yet, couldn't feel the pain and I was - I stripped my clothes and tore my T-shirt off feeling for a hole and looking at the ground underneath me for blood, and after some seconds of anguish I started - I commenced an absolute hysterical, maniacal laugh which I have never done since, just thinking I was thankful that I was alive and avoided something which to me, was certain death at that range. Q. Where did the bullet discharge to? A. The bullet actually cut through the T-shirt, a ripple in the T-shirt I was wearing. It came very close to my skin. I had a red area, I guess, from the discharge or the flame that would come out of the end of the barrel. There was a hole punched through the front of my metal locker. The bullet penetrated six layers of Antron jacket and went through outer sleeves, inner sleeve jacket, and then punched a big hole in the back of the locker as well. Q. Where did the bullet then exit to? A. The bullet had exited through the back of the locker, punched a hole, and then with the assistance of two other associates or police that were also getting unchanged in the locker room, we pulled out my locker - and it's quite difficult to do, but we found an indentation in the concrete where the bullet directly behind the locker that I was standing at corresponded - the hole corresponded with the hole and the damage in the concrete." The plaintiff went on to say that they found the slug of the bullet broken into several pieces behind his locker on the floor. 36The plaintiff then described Mr Preece as being frozen like a mannequin, that he was white and was "immovable". He went on to give this evidence about Mr Preece: "A. He froze, I looked around and all the other police in there were holding their ears because of the sound that it made in that enclosed room, then within 15 seconds two uniformed dark blue fatigued police that usually have - that have breakfast next door to that locker room, the TRG, that was their breakfast room. I assume that they were in that room and heard the firearm discharge. They came in hurriedly and grabbed him in incredible style. One grabbed him around the shoulder on one side and was almost like arresting an offender, they grabbed his arms, pulled them back and he was removed from that room physically and very forcefully and quickly away from that room. He was unable to move, there was no - well, he didn't move at all. I am saying that he was unable to move, he still appeared in that frozen state. In fact, I watched his feet and he was being dragged out of the room and the toes of his boots were dragging on the ground." The plaintiff was unable to identify either of the officers from the TRG. The plaintiff said that Mr Preece was removed from the class. The plaintiff himself thought that he would be removed from the class at some stage to be questioned but that never occurred. 37At the weapons retention course there were some gibes from other people saying things such as, "you'd better check Porto's gun twice" and after saying such things they would laugh but the plaintiff went on to say that the members of the class were complaining about ringing in their ears. One will note from what I have earlier quoted the plaintiff maintains that he suffers from tinnitus to this day from this event but there is no corroboration for that at all and certainly no evidence of any impediment in the plaintiff's hearing which might account for some tinnitus. 38The plaintiff said that he did not report the incident himself. He did not want to put himself in a position where he could be blamed for its occurring. The plaintiff went on to say that at about 11.30am or noon he and others saw Probationary Constable Preece going home. They saw him walk across the parade ground in full uniform, "hat, tie, the whole shebang, bag over his shoulder" and that in such fashion Probationary Constable Preece left the Redfern Police Barracks and was never seen again by the plaintiff. 39In his evidence-in-chief the plaintiff said that his state of mind was this: "I couldn't believe that I was alive, and I'd never been so scared in my life." After the plaintiff had given that evidence I intervened. I pointed out to him that it appeared to me that either Mr Preece had attempted to murder the plaintiff or that this was some form of practical joke that went wrong. He agreed that the description that he gave of Mr Preece was of his being shocked and mortified. The plaintiff had agreed that the description of the event that he had given sounded like a practical joke that had gone wrong. He agreed that he did realise that because he and Mr Preece had been friends. This evidence was then given: "Q. You were friends. A reason for not making any formal report or complaint is because you wouldn't want it - you, having survived his failed practical joke, didn't want to get your mate into hot water? A. No, I didn't want to get myself involved. I didn't want to be looked at being what caused it because I did use the word 'clear' and I did say, 'Is it clear outside?' and I realised that may have been a contributing factor to him believing that I was using that words and skylarking, but that wasn't my intention. I didn't want to get into trouble and be discharged from the Police Service for something that was misinterpreted by somebody else, I guess." Later this evidence was given: "Q. You see, what concerns me is this. You are complaining to me now about systems not having - no investigation, swept under the carpet, in effect, but if you yourself wanted to sweep it under the carpet so that there was no adverse repercussions for either Preece, your friend, and yourself, then other police might be in exactly the same position and want to sweep it under the carpet, pretend nothing happened and it's all gone away and no-one gets into trouble. Right? Do you understand that? A. Yes." 40At the commencement of cross-examination the plaintiff said that his recollection of this event was "crystal-clear in my mind". He went on to say this: "It was the event that nearly took my life. I will never forget it." He went on to say that he regarded himself as a "dead man walking" ever since the occurrence of this incident. Exhibit 7 is a communication sent by the plaintiff to the defendant on 20 August 2012. After signing and dating the document the plaintiff described himself as "The walking dead man". 41At the re-commencement of cross-examination on the third day of hearing, 25 October 2013, the plaintiff would only concede that this incident "may have been an accident". Later he admitted that he did not take any time off work as a result of this incident, that it did not interfere with his ability to continue to work and that it did not require him to go to see a doctor. 42The plaintiff was then taken to the history of this incident that he had given to Dr Peter Klug, whom the plaintiff saw on two occasions. The first occasion was 4 March 2008. At p 5 of the transcript of 25 October 2013 the following evidence was given: "Q. Dr Klug records that you say he was marched off the grounds. Now, that's not right, is it? A. Well, he marched off the grounds diagonally by himself in full uniform approximately two hours after the incident, including his hat, bag, in full kit. Q. He wasn't accompanied by anyone. Correct? A. No, he wasn't, no." It appears that the plaintiff failed to consider the difference from marching off the grounds and being marched off the grounds. A little later this evidence was given: "Q. ... Dr Klug also records that you were preoccupied with the fact that a sergeant subsequently put in a falsified report about the Preece incident. Q. What sergeant? A. There is no sergeant. To my knowledge, sir, there is no report, and never has been a report in relation to the incident. Q. Did you tell Dr Klug anything like that? A. I would not have told Dr Klug that. The only report that I know is perhaps the report that I gave to Mr Edmunds when we commenced proceedings." However, it is clear that the plaintiff did give Dr Klug the history about which he was cross-examined. It was then suggested to the plaintiff that he was exaggerating the effect of this incident in his own mind. He denied that and said he never exaggerated. I am unable to accept the plaintiff in that regard. 43The plaintiff was then cross-examined about a history that he gave to Dr Edwards. The history is this: "He then told me two specific incidents that particularly troubled him in which he gave me detailed notes concerning one at the police academy when a fellow probationary officer, in a playful mood, pushed a shotgun towards him and it went off. He said he could have been killed, it went through him and he only sustained a burn mark to his body. He said some of the nightmares have tended to persist, like blood flowing across a floor." Clearly a shotgun was not used, only a police service revolver. Furthermore, the plaintiff was not shot as such. A bullet may have gone close to his abdomen and left a burn or scorch mark. The plaintiff denied that he would have used words such as Mr Preece was in a playful mood or that he was mucking around or joking or skylarking. He went on to say that he did not know what Mr Preece was doing but it is clear from what he had already conceded to me when giving evidence-in-chief that he knew that it was a practical joke gone wrong. 44A number of other witnesses gave evidence about this incident. The first was Mr Richard Walter Oakley who, like the plaintiff, was attested as a probationary constable of police on 27 March 1987. He was medically discharged from the police force with injuries to his back and neck in 2001. Those injuries have been accepted as being "hurt on duty". Since 2004 the witness has been employed in the Public Service in the Firearms Registry at Murwillumbah. 45Mr Oakley recalled a gun shot in the locker room at the Redfern Police Barracks. He did not recall whether he was getting changed or what other reason may have taken him to the locker room. He believed Mr Porto was there. The first thing that Mr Oakley knew about the discharge of the gun was hearing the noise of the discharge. Shortly after the noise he saw the plaintiff. He said the plaintiff was quite distraught and upset and appeared to be nervous and frightened. Mr Oakley noted a hole in a locker. Mr Oakley performed an elementary police cover up. He placed a bumper sticker over the hole in the locker. His recollection of other events is somewhat vague. For example, he only believed the course was for two weeks when it was for four weeks. He recalled the name of Sean Preece but did not recollect anything of him. Mr Oakley believed that it was the plaintiff's gun that had discharged. He said this: "He was quite concerned about the incident, very worried that he would be in trouble." That is a clear reference to the plaintiff. In answer to a question I put, this evidence was given: "Q. You might remember this. To me hearing what I have heard about this incident that you are giving evidence about, Mr Oakley, there are only two possible variations. One is an attempted murder. The other is a practical joke gone wrong. A third possibility is just an accidental discharge while someone was trying to [unload] their gun. When this occurred, what was the atmosphere? Was it shock and horror, shock and awe, or unbridled mirth? A. Unbridled mirth." He did not know who had caused the discharge of the firearm but from what he had heard he did not suspect that it was the plaintiff. 46Evidence was also given by Detective Inspector Terry Stewart Nash who is currently the Professional Standards Manager for the Dubbo region. He was also attested as probationary constable of police on 27 March 1987. He told me of class 225 and group E and brought with him to court a contemporaneous record showing the secondary training course commencing on 16 November 1987 and concluding on 11 December 1987. Detective Inspector Nash was in group 225 E, as was Mr Preece. The first thing that alerted the then Probationary Constable Nash to the discharge of a firearm was the noise of it. He was in a stairwell about 15 to 20 metres away and he heard the shot coming from the locker room. He was going up the stairs away from the locker room. On the evidence before me, the stairs going up from the locker room lead to classrooms and not to the oval where a weapons retention course was to be held. Probationary Constable Nash did not report this incident but he said that he was not interviewed afterwards. In cross-examination he confirmed that he was going up the stairs to the lecture rooms. 47The next witness to give evidence about this event was Senior Constable Sean Presgrave who is stationed at Lismore. He is also a member of class 225 E. He was in the locker room when he heard a loud bang. Those who were also in the locker room were the plaintiff, Sean Preece and Steve Pitman. When he heard the bang he looked around and ran. He saw the plaintiff and Mr Preece but he was not sure if Mr Pitman was there or not. He ran out lest there be any further discharge of the firearm. He did not know whose weapon had been discharged and he did not see where the bullet had gone. All he had a definite recollection about is that he was in uniform as were the others. He said that after the discharge of the firearm he did not go back into the locker room. He did not recall anyone laughing about this incident. Once he realised that no-one had been injured the general thought was that it was hoped that no-one would get into trouble. 48The other witness to give evidence about this event is Mr Sean Preece. Like the others, he was attested as Probationary Constable of Police on 27 March 1987 and there is no doubt that he was a member of group 225 E. After being attested as Probationary Constable of Police he was stationed at Rose Bay Police Station. He told me that he completed the four week training to be a constable at the Redfern Police Barracks. In his evidence-in-chief he said that he did not handle anyone else's firearm, that he was unaware of a discharge of Mr Porto's firearm at Redfern and that he did not take and fire the plaintiff's gun. He told me that he completed the four-week training course, was attested as a constable of police and served a further nine months, that is, 18 months all told, at Rose Bay Police Station. He then was stationed at Paddington for nine months and he then went to the Maroubra Police Station for two and a half years where he was a member of the Highway Patrol. In 1992 he resigned from the Police Force and took up alternative employment. At the time of giving evidence he was the Chief Operating Officer for a finance and investment company. 49In cross-examination Mr Preece told me that after completing the constables' course at Redfern that he went back to the Redfern Police Barracks while still stationed at Rose Bay to perform a course to assist the TRG. He recalled training in the use of police dogs, training in respect to gases and sprays, training for improved defence, training for "pressure points" and being put in a suit and being chased by one of the police dogs. He readily accepted that he could remember very little, if anything, of the training at the constables' course but remembered the training with the TRG because that was something that he enjoyed, which cemented it in his memory. In crossexamination he said this: "Q. If a gun discharged in the locker room, you wouldn't recall it at the constables' course? A. That would be a significant event and I think I would recall that." When cross-examined about the plaintiff's allegations, Mr Preece told me that if such had occurred he would remember it. This evidence was given: "Q. Do you remember being startled, stunned, in shock at any time in the locker room? A. No, I don't. To the best of my recollection, sir, I went through my training without incident. I passed all of my training. I had no blemish on my record with respect to any incident occurring so something like that, if it occurred, the normal practice would have been for it to be reported and for me to be - would have went through a process of being either reprimanded or dealt with in some way, and none of that occurred. Q. Can you recall two members, two uniformed police officers - not probationary constables; experienced seasoned policemen coming into the locker room and dragging you out? A. Absolutely not. Q. If that had occurred would you remember it? A. Yes, I would have." 50I formed a favourable impression of Mr Preece and do not believe that he tried to mislead me. Equally, I believe that he would have admitted what the plaintiff alleged if what the plaintiff alleged were true. However, it is clear from the evidence of Mr Oakley, Detective Inspector Nash and Mr Presgrave that there was a discharge of a firearm in the locker room at some stage and I am prepared to accept that it was the plaintiff's firearm which was discharged. The only inference to be drawn was that the discharge was clearly accidental. I am even prepared to accept that the gun was discharged by someone other than Mr Porto in what may have been a practical joke. However, at the time the evidence about this event was given, almost 25 years had passed. Memories grow dimmer and more vague with the passage of time, especially when no contemporaneous document was ever made. 51The identification of Mr Preece as the discharger of his gun may be an erroneous identification. For example, I cannot accept that Mr Preece was dragged out of the locker room by two members of the TRG, was sent home early that day and did not complete the constables' course, which would have prevented him being attested as a constable of police. Mr Preece gave evidence about his subsequent career in the police force and was not challenged in that regard. The inference from what the plaintiff asked me to believe is that he did not complete the constables' course and could not, therefore, have reached the position of Constable of Police and was under some disciplinary cloud of which there is not a scintilla of evidence. For reasons which will be clearer as I give further reasons, I believe that the plaintiff has grossly exaggerated this event, both as to what happened and as to the effect of it on his psyche.

[6]

The suicide discovered on 25 June 1988 52The third event that the plaintiff relies upon is the event of 25 June 1988. This concerned the suicide of Mr Ivan Berezutsky who was aged 79 at the time. An occurrence pad entry was made for this event. That became exhibit F. There was also a report to the coroner which became exhibit G. With some abbreviations and omissions of unnecessary information the following is the content of the occurrence pad report: "At 4.30pm this day Mr Michael T of ... Auburn attended the station and informed myself and Constable Clarke of his concern for the welfare for an old workmate of his. A short time later, in company with that person, attended premises at ... Lidcombe. It was ascertained that the door was not being answered and that entry was to be made. The rear door was then forced by police and a short search of the house revealed that a male was stretched out in the rear bathroom, bath filled with both water and blood. Contact was then made with Senior Sergeant Garrod [who] attended at 5.40pm. A short search of the house followed, and a suicide note written in Russian was located on the kitchen table ... Detective S Jones was then notified and attended at 6.50pm. Scientific was also summonsed [sic] and similarly attended at 7.20pm. ... Government contractors attended the scene at 8.20pm and conveyed the body to Westmead Mortuary and life was pronounced extinct at 9.03pm ... The bathtub was drained and a 30 centimetre knife was located under the body. It was also noted that both arms were deeply cut on the inner side of his elbows ranging from slashes to puncture wound on the arm. It was further noted that current bank books and lottery tickets were torn and discarded into the rubbish bin, in the kitchen. According to neighbour ... he had attempted to approach the deceased at 4.20pm the previous day but the deceased told him, 'Shut the door ... I just want to go to sleep ...' The deceased had a multitude of illnesses including [cirrhosis] of the liver, bowel cancer, asthma, varicose veins in the oesophagus and water in the abdomen. According to neighbours, his spirit had been low for a period of some two weeks where the deceased, Berezutsky, consistently refused company and just "forgot to eat". NO SUSPICIOUS CIRCUMSTANCES." The report to the coroner was made by the plaintiff. 53Such scenes are always distressing for whoever is involved. The only further detail the plaintiff gave of this event in his evidence-in-chief was the need for him to draw the plug from the bathtub for which purpose he used a wire coat hanger suitably bent into position and required the plaintiff to push the deceased's body forward so that he could get access to the plug. 54This event was not the subject of any cross-examination by the defendant. However, no mention of it was made by the plaintiff to any of the medical practitioners who examined him for his psychiatric condition, namely Dr Peter Klug on 4 March 08 and also on 12 July 2011, Dr Graham Edwards who saw the plaintiff for the defendant on 2 March 2009, Dr Doran Samuell who saw the plaintiff for the Commissioner of Police on 20 July 2009 and Associate Professor Glozier who saw the plaintiff on or about 6 February 2012 for the current defendant. There are also reports before me from Dr Anna Popova who saw the plaintiff some time in late 2008 for treatment and by Ms Fiona MacCallum, a clinical psychologist whom the plaintiff first saw on 1 March 2010 but this event was never mentioned by either of them. There is no suggestion that the attendance upon the scene of this death caused the plaintiff the need to take time off work or to see a medical practitioner or to make any complaint to anybody in authority or to otherwise suggest that it had made him ill.

[7]

The attempted robbery of 6 January 1989 55On 17 November 1988 the plaintiff joined the Highway Patrol at Bass Hill. The fourth incident which occurred was the plaintiff's involvement in the arrest of persons who had attempted to rob the ANZ Bank at Bankstown on 6 January 1989. The occurrence pad entry for this event is exhibit H. The offenders were named Mercer and Foley. The first part of the occurrence pad entry is this: "About 2.35pm on 6-1-89 the above two offenders were sighted acting suspiciously in a confirmed stolen Ford Falcon ... outside the ANZ Bank ... Bankstown. At the time the offenders were sighted with a sawed-off rifle, dressed in blue overalls and with black balaclavas. A call was made to the 000 switch by a local shopkeeper and Bankstown District vehicles responded. A short time later Constable First Class Smith and Constable Thorn of "Bankstown 1" arrived at the bank and sighted the offenders about to leave the stolen vehicle and enter the bank. The stolen vehicle, driven by Mercer, then accelerated to high speed and a Police pursuit ensued to a block of units at Dellwood Street, Bankstown where the offenders abandoned the stolen vehicle in a car park under the units. Numerous other police arrived shortly thereafter and a search of the car park was carried out. The two offenders were sighted by Senior Constable Thompson and Constable Porto of Bass Hill Highway Patrol, hiding behind a Ford Cortina station wagon ... owned by Foley. This vehicle had been parked at the units as the second get-away vehicle. Located on the ground, also behind the vehicle, were the two pairs of blue overalls, two pairs of gloves and the keys to the stolen Falcon. The offenders were arrested without incident." The occurrence pad entry is very long because these two offenders had been involved in at least four earlier armed robberies. The occurrence pad entry concludes with this matter: "It is worthy of note that Constable First Class Smith and Constable Thorn displayed an impressive dedication to their duties in, not only preventing an armed robbery occurring, but successfully pursuing these armed offenders to their ultimate arrest, leading to a clear up of a number of most serious criminal offences. Also Senior Constable Thompson and Constable Porto should be commended for their thoroughness and attention to duty in effecting the arrest of the offenders who, at the time were armed with a loaded firearm, cocked with a bullet in the breach, ready to fire. All these constables should also be commended for their bravery in an armed and dangerous situation." 56In his evidence-in-chief the plaintiff said that he and Senior Constable Thompson entered the car park from the opposite direction to the police from Bankstown. That was to prevent the offenders doubling back to the vehicle in which they had arrived in the car park and leave. Before entering the car park the plaintiff had been notified that the offenders were armed. He and his partner split up. They were between 5 and 10 metres apart. As he was unable to see the offenders, the plaintiff decided to lay down flat on the surface of the car park looking underneath the cars to see if he could see any feet or movement from somebody who was crouching. When he did that he realised that he had just walked past a vehicle that was now two cars away from him and he could see sets of feet and some human activity at the front of that vehicle parked against the wall. He was in very close proximity to it. The plaintiff said that he was frightened and scared. He said that adrenalin was rushing through his system. He described "fear", "adrenalin" and "excitement" all being rolled up within him. The plaintiff then started yelling at the offenders and demanded that they stand up and put up their hands. At that time he also stood up at a position a car away from the offenders and took up a shooting stance, as had his partner. The offenders then stood up and put their hands up in the air. The police from Bankstown then ran down to where the offenders had surrendered themselves and assisted in their arrest. 57They found one .22 calibre rifle with a bullet in the breach and five further bullets in the clip. The rifle was cocked and ready to fire. However, when the offenders stood up to surrender they did not have that firearm in their hands. By the time they stood up with their hands in the air the plaintiff knew that they were no longer offering him any danger. He said shortly after the offenders surrendered the Armed Hold-up Squad also attended the scene. He acknowledged that both he and Constable Thompson were given commendations for this job. Again, this was the subject of barely any cross-examination. However, it is clear that it did not cause the plaintiff to take any time off work, to see any medical practitioner and again, was not the subject of any history given to any psychiatrist examining him.

[8]

The arrest of the offenders at Merrylands: 24 July 1991 58The fifth event occurred on 24 July 1991. For the purposes of a prosecution the plaintiff prepared a statement bearing date 5 July 1991. It became exhibit J. Commencing at [3] of the statement is this: "3. On Sunday 23 June 1991 I was rostered as the observer of Merrylands 1, between 10pm and 6.30am, 12 June 1991 with Constable Hiscox as the driver. At about 10.12am Monday 24 June we responded to a radio message to attend the car park servicing the block of units at number 25 St Anne Street, Merrylands to assist Senior Sergeant Stevens, who allegedly had four males under observation in a vehicle there. 4. A short time later both Constable Hiscox and myself attended that location. Upon arrival I maintained observations upon four male persons seated in a silver Holden Commodore ... At this point, other police vehicles also attended and also contained those persons within the vehicle. Sergeant Stevens then left the immediate area and had a short conversation with Detectives Clarke and Neale. I continued to observe the vehicle for a short time. Sergeant Stevens then approached me and told me something. I then left the immediate area and spoke to Mr LWA, a resident from that block of units. He then told me something. After speaking to LWA I then returned to the Holden Commodore and noticed that the rear tailgate to the vehicle had been opened. As I approached I saw a firearm with a long barrel with an orange magazine attached. I also saw several woollen balaclavas on the floor of the parcel section of the station sedan. I then remained at the rear of the station sedan and continued to observe the four males, which were now standing outside the vehicle, each person positioned at each corner of the Commodore. A short time later, Senior Sergeant Stevens approached me and told me something. Constable Hiscox and myself then placed an Aboriginal male, wearing a beanie on his head, in the rear of the police vehicle. This was the person I know now as AR. After arriving at the Merrylands Police Station he was handed over to Detectives Clarke and Neale for further investigations to be conducted. Those are the facts relating to this matter to the best of my recollections." 59The plaintiff told me in his evidence-in-chief that whilst standing at the rear driver's side wheel of the station wagon that he had his revolver drawn and trained at the heads of the men in the vehicle. He could see the rifle in the back of the station wagon and he was concerned that one of the men in the back seat could reach back and grab the rifle and start firing it towards police. The plaintiff said that there was a ten-minute period when he and Constable Hiscox were alone with the four men in the vehicle whilst the sergeant was on a radio contacting the local station in order to get some back-up in the form of a caged truck in which anyone to be arrested could be detained. 60The plaintiff, when challenged about what was written in exhibit J, said that his memory was defective in that he did not remember a detective being present. He went on to say although by that stage of his life he was having sleeping difficulties and firearms were being included in his dreams. However, again, there is no suggestion that the plaintiff reported any adverse psychiatric reaction to anybody. There is no suggestion he took any time off work. There was no suggestion that he saw any medical practitioner or any other person who might have received a complaint about his psychiatric condition and this event was not mentioned by the plaintiff to any of the psychiatrists that interviewed him for the purpose of his obtaining his HOD pension.

[9]

The pursuit at Villawood: 1 October 1992 61The sixth and final event relied upon occurred on 1 October 1992. I have three contemporaneous documents about this event. All of those contemporaneous documents were made by the plaintiff. They describe the event somewhat laconically. The first is exhibit K, an occurrence pad entry. It was made at 11.55am on 1 October 1992. It is headed, "Constable First Class R Porto injured whilst on duty". The narrative is this: "At 9.15am this date, in response to an URGENT call to assist the Fairfield Detectives who were in foot pursuit of an offender in Mandarin Street, Villawood. A short time later I received information from a resident that a male person was hiding in their yard at number 20 Normanby Street, Villawood. Whilst climbing the fence at the rear of that yard I jumped to the ground and my left foot came into contact with a pot plant, losing my balance, causing me to fall, striking my left knee against a large river stone. I then felt immediate pain to my left knee and left ankle. I was then taken to Fairfield Hospital for examination. This examination revealed that I had suffered torn ligaments to my left knee cap and left ankle. There appears that a minor hairline fracture is present to the ankle." Notations on the right-hand side of the occurrence pad entry refer to a number of forms having been completed, to those involved and the vehicles involved and of a certificate being obtained from Dr Bing of Fairfield Hospital and of the plaintiff's being unfit for duty until at least 8 October 1992 and of the sick book having been endorsed. 62The next document is exhibit 11 and is a claim for hurt on duty benefits (P124). The narrative of how the plaintiff came to tear ligaments in his left knee and left ankle at 9.15am on Thursday 1 October 1992 is this: "Whilst scaling a fence between two residential properties I lost my balance while striking a ceramic pot plant on the ground. This caused me to lose balance and fall heavily, onto and twisting my left knee. The knee then struck a large river stone embedded in the garden, causing acute pain to that area." Like the occurrence pad entry, that document records that the plaintiff was working with Constable A Velovski and also that Sergeant McEvoy was involved after his arrival at the scene. 63The final document is the plaintiff's police notebook for this event which became exhibit 9. The police notebook records the plaintiff's commencing duty at 7am. At 9.15am there is reference to Crown Lane, Villawood. If one consults the street directory, exhibit R, one can see that behind one section of Normanby Street, Villawood is Crown Lane. Normanby Street turns into Crown Street and they appear from the street directory to be the one street but I note that Crown Lane was probably on the same alignment as Crown Street but Normanby Street has curved to the right as one looks north to join up with the northern section of Crown Street. Crown Lane may originally have been the southern alignment of Crown Street. The narrative contained in the plaintiff's police notebook is this: "Pursuing stolen Holden HX. Two males on board. Assisting John Paccione - males on foot - residents tell police one male decamped over fence adjacent number 11. I climbed 6-7 foot Colorbond fence after male, left heel struck pot plant, causing me to lose balance falling to the left side, knee buckled and collided with a large river rock in the garden against fence - sharp intermediate pain to the left knee. Cracked heard. Male offender apprehended by myself - assisted by Velovski-Wood plus Sergeant McEvoy. Later conveyed to Fairfield Hospital by Velovski. Unable to support own weight on left knee. Fairfield Hospital casualty - wheelchair - Dr Bing examined ankle - not knee. Advised x-rays arranged - taken - given eight days' leave WorkCover to 8-10-92 - crutches. Occurrence pad, P124, submitted 2pm 1 October 1992." The document then gives the name of the witness to this event, Sergeant McEvoy. Entries on the rest of exhibit 9 indicate the plaintiff was absent from work until 8 October 1992 and thereafter he either did station work or took additional leave or rest leave until resuming normal duties on 18 October 1992. 64These three documents indicate a fairly routine event where the plaintiff fell whilst trying to get over a fence injuring his left knee. The plaintiff's evidence about this event, however, is much more involved. In his evidencein-chief the plaintiff told me about working with Constable Velovski who was junior to him. He was "just a tag-along". As a Highway Patrolman the plaintiff generally worked alone but Constable Velovski was there to see how things were done in the Highway Patrol. His evidence continued thus: "We were monitoring the radio for calls as we do and we heard one of the detective vehicles called on, that they were following a vehicle, following or pursuing a vehicle with two males on board following an armed hold-up at the Villawood Bus Depot. They gave us instructions over the radio that these two gentlemen were both armed with black pistols, they are Arabic or Middle Eastern in appearance and they also had pistol-whipped and assaulted two ladies at the Bus Depot and were in possession of a payroll of the bus depot. Being the fast response vehicle in the area and the only one on, we started to head towards the location and the streets that they were travelling upon at speed. The detectives were having trouble keeping up with the vehicle, either through the type of vehicle or driver skill and were loosing that vehicle and the vehicle was getting away. I managed to catch up to the rear of the detectives vehicle. I went around the vehicle ... having a fast car and then pursued that vehicle at close range for a period of 20 minutes ... Q. How fast were you travelling? A. The areas that we were travelling are very suburban back streets and at stages we reached speeds of 140 kilometres an hour and above, with sirens and a fully marked Police vehicle which was quite frightening. Q. How long were you engaged in this pursuit? A. It was a period of 20 minutes at least." 65I interpolate at this time that if speeds of 140 kph were being exceeded then an average speed might be somewhere in the order of 100 kph. In 20 minutes one would travel over 30 kilometres at an average of 100 kph, yet the hold-up was at the Villawood Bus Depot and the pursuit on foot of an offender occurred in Villawood. It is hard to imagine any suburban street having over 30 kilometres of streets which could be traversed in the fashion the plaintiff asked me to believe. Furthermore, there is not any mention whatsoever in any of the three contemporaneous documents of any police pursuit at speed and at length. 66In his evidence-in-chief the plaintiff went on to say that the vehicle ended up in what is obviously Crown Lane, a cul-de-sac. The plaintiff said that the offenders stopped their vehicle up against a fence that was either 2 or 3 metres high. He agreed it was a Colorbond fence but the height of it in the contemporaneous documents was only 6 or 7 feet. The offenders then used their vehicle as a ladder to climb over the fence. The offenders were a little bit ahead of the plaintiff and Constable Velovski. The plaintiff's evidence continued thus: "I could see they both had something black in their hands which I assumed were pistols and I immediately jumped from the car with the sirens, lights and everything still going. I got out of the car. I didn't remove my firearm at that stage because I needed to jump a fence which was immediately in front of me. I jumped on the bonnet of the police car and then saw them. As I got on the bonnet of the car I saw them both running across the back yard towards a rear garage and they were probably in the middle of the backyard when I was at the top of the fence. I was watching them intently. Although I was very affected by adrenalin I knew that when I was on top of the fence climbing that I don't have anything to protect myself and they were already in a firing position. They could have turned and bang, shot at me from close range or both of them while I was negotiating the fence and having both my hands on the fence. By watching them do that I saw one of them stop, hesitate. The other chap continued to run and secreted himself behind the corner of the garage. I saw that momentary slowing down of one of the offenders and in my mind I believed that I was vulnerable at that stage so I leapt away from where I was off the top of the fence behind a couple of trees that were immediately to my left just on the other side of the fence. I jumped to the left to try to avoid being targeted if I was being shot at. At that stage I had taken my eyes off the offenders and I was looking for a place to land. Q. Did you jump onto their side of the fence or the road side of the fence? A. Yes. I jumped from the road side of the fence onto their side of the fence. I was already committed to the jump. I was at the top of the fence when I realised that one of them had slowed. Q. Jumped over the fence and to your left? A. I then continued the fence and went over the other side. I tried to use the two trees that were on the left-hand side of me as cover if one of them did - if he continued to raise the firearm or to shoot at me, at least I was behind a tree of some kind. There was no other cover inside the rear yard, to my knowledge, between us and them but the two trees that were on my left. As I jumped off the top of the fence behind the trees, to use the trees as cover, the heel of my left boot got caught. I didn't see. There was a large concrete pot that was probably half a metre around with a large plant in it and as I jumped down to try and put my feet on the ground the heel of my left boot got caught inside the pot and that isolated my foot. My foot didn't move at that point and the weight of my body continued down and compressed down and obviously I fell onto the ground from over 2 metres or two and a half metres, 2 metres or so from the top of the fence. That caused my knee and my leg to be in a fixed position while my body was falling. Q. That's your left? A. Yes, my left. My leg was stationary. My body weight came down and my knee hit my sternum." In his next answer the plaintiff said that he heard a loud crack at the time, presumably from either twisting his knee or from his knee striking his sternum and that sounded like "a gun shot". The plaintiff said that at that time he was laying prone on the ground "screaming bloody murder". He told me that he had never felt so much intense pain in his life. 67The plaintiff went on to say this: "I could see them watching me and I was unable to move at that stage. I was just swearing loudly and holding my leg. I was in fear that they would shoot me there and then. I was the only policeman in the backyard and my support was still trying to work out what was going on and still sitting in the car. Constable Velovski, from memory, heard ... Q. Just a minute. Were you in a position to escape if they did fire upon you? A. No, sir, I wasn't able to move at that stage." The plaintiff then made it clear that at one stage one of the offenders who had been running across the backyard stopped and hesitated and the plaintiff believed that he was about to raise his arm and fire a pistol at him. He believed that they would turn around and "execute me at the top of the fence" to prevent the plaintiff chasing after the offenders. He then made it clear that there was nothing to impede a direct shot at him and that the plaintiff was "damn lucky that they didn't". The plaintiff then went on to say this: "I think Constable Velovski came over the fence. Look, I can't remember whether he fired a shot. The sirens were still going. I had lost track of what was happening. My focus changed totally to selfpreservation. Look, after that, I can't remember the exact details as to what happened but I remember getting up when I think Constable Velovski came over the fence. Then we arrested those two gentlemen." However, on 25 October 2013 the plaintiff admitted in crossexamination that he did not arrest anybody. That can be found on p 14 at line 25. 68On p 23 of the transcript of 24 October 2013, that is in evidence given shortly after the lengthy evidence I have just quoted, the plaintiff gave evidence alleging injuries to his knee and ankle but then went on to say that he also sustained damage to two discs in his lumbar spine which he identified as L4 and L5 but they are clearly not discs but vertebrae. The plaintiff went on to say that these discal injuries in the lumbar spine were later documented on an MRI. I am unaware of any MRI scan of the plaintiff's lower back but there is a CT scan of 15 June 2007 of the lower back. There is a long time between 1 October 1992 and 15 June 2007, a period of nearly 15 years. Exhibit O before me are the records of the practice at which Dr Sofia Yusuff and others that treated the plaintiff since 3 January 2005. On 6 February 2006 a medical practitioner noted that the plaintiff had had lower back pain for the previous eight weeks. He gave a past history of having a left knee pain after an operation. The consultation suggests that the onset of the lower back pain was recent. On 8 February 2006 there was a direction that there needed to be a referral for a CT scan of the lumbar spine. On 14 February Panadeine Forte was prescribed for lower back pain. In his evidence-in-chief, after telling me of the damage to his back, the plaintiff said that he also had some "gentlemanly mis-function" and I note that on 29 February 2008 the plaintiff commenced to complain of erectile dysfunction occurring since November 2007. Clearly the plaintiff wanted me to accept that the lower back complaint and the erectile dysfunction were somehow related to a knee injury when the symptoms of the back pain and erectile dysfunction came on at least a decade after the injury to the plaintiff's left knee. I am unable to accept that. Furthermore, there is no suggestion in the medical evidence that there is any causal relationship and one has not been sought, for example, from PSAC. 69Mr Ower commenced to cross-examine the plaintiff about the event of 1 October 1992 on 25 October 2013 commencing at the foot of p 7 of the transcript. The plaintiff confirmed that on 1 October 1992 and indeed throughout that month he made no complaint to anybody about any emotional consequence of the incident on 1 October 1992. It was then suggested to the plaintiff that he did not complain to anybody about that event having any emotional influence upon him until 2009. The plaintiff agreed with that proposition. He agreed that his complaint about it was more physical. 70The plaintiff was then taken to exhibit K and said that when he said in that document that a male resident gave him certain information that that did not occur. He went on to say that nobody pointed out to where the offenders were, which is inconsistent with what is contained not only in exhibit K but also in exhibit 9. The plaintiff agreed that there was nothing in the contemporaneous document about a car chase and there was nothing in the contemporaneous document about seeing offenders armed with guns. He also agreed that in exhibit K there was no mention of his apprehending the offenders, although I note in exhibit 9 there is reference to his assisting in apprehending one offender. 71On p 11 the plaintiff admitted that there were some anomalies between what he had said in the contemporaneous documents and he accepted that his memory of events back in 1992 would be better than his memory of the events in 2013. The passage of 21 years would dim any memory. It would have been churlish of the plaintiff to have suggested otherwise. The plaintiff had not given any history to Dr Peter Klug or Dr Graham Edwards about the event of 1 October 1992 having any adverse psychological effect on him. On 25 October 2013 the plaintiff gave this further evidence in cross-examination: "Q. Your specific complaint is one about being in a position of danger? A. Yes. Q. And that you were frightened? A. Yes. Q. You were particularly frightened because you thought you were going to be shot. Correct? A. Yes. Q. You don't complain to Dr Klug about those circumstances, do you? A. I can't recall the exact report at all. Q. You also didn't complain to Dr Edwards about those circumstances, did you? A. I can't agree or disagree." It is clear from both exhibit K and exhibit 9 that although there were two offenders initially being pursued, only one offender climbed over the fence. It is that offender that the plaintiff sought to pursue. No mention is made in any contemporaneous document of the offender's being armed or the offender's having in his hand a pistol or the plaintiff in any way feeling threatened by this event. 72The plaintiff adduced no evidence from anyone who treated him, for example at the Fairfield Hospital on 1 October 1992 or from any general practitioner that he was seeing at that time or from anyone who may have assisted him after 1 October 1992, of any complaint of the plaintiff's psyche being affected. I am afraid that as far as I can assess, that event has been grossly exaggerated by the plaintiff.

[10]

The events of 24 October 1994 73The final event which the plaintiff sought leave to rely upon, and for which leave was refused, occurred on the M4 on 24 October 1994. The plaintiff's counsel, Mr Perrignon led this event as occurring on 27 October 1994 but that is as a result of a misreading of a document which became exhibit 1. On 24 October 1994 the plaintiff was patrolling the M4 motorway near the Homebush area. The plaintiff gave some histories of this to three medical practitioners. On 4 March 2008 the plaintiff told Dr Peter Klug of an instance when he had marked emotional over-reactivity. This was, "A routine incident when he gave a motorist a ticket. He turned around on the road and fell because of his knee symptoms - he was, however, profoundly upset that this had occurred." The plaintiff consulted Dr Endrey-Walder, a general surgeon, on two occasions because of the condition of his left knee at the request of the plaintiff's solicitors, Messrs Baker and Edmunds. On 14 March 2008 Dr Endrey-Walder obtained this history: "On 27 October 1994 while on duty he had occasion to stop a motorist on the M4 motorway. When he returned to his car, 'I fell on the roadway' when the knee gave out on him, and he was rather disturbed by this. He continued on duty, 'but I was not coping well'." Associate Professor Glozier who examined the plaintiff on or about 6 February 2013 has this history: "One day in late 1994, he was driving as a single unit and felt that he 'could not take it any more' and 'just went home'." 74The evidence given by the plaintiff in-chief about this "routine incident" was much more colourful than those histories suggest. The evidence is this: "A. ... I was patrolling the M4 motorway near the Homebush area, watching how other vehicles were reacting to other vehicles, just general traffic surveillance, and I noticed a vehicle that was travelling very close to the rear of a second vehicle. The vehicles were travelling at speed. I deemed that to be dangerous and unnecessary. HIS HONOUR Q. Tailgating, as it was called? A. Tailgating very close at a speed that I would estimate could have been 100 kilometres an hour. I then moved behind that vehicle and activated the lights and sirens and stopped that vehicle on the side of the road, on the shoulder of the roadway there against the concrete barrier. I then approached the vehicle and then had some discussion with the driver. We had a discussion. I cannot recall whether it was a warning on the run or a traffic infringement notice that I issued to the driver but I remember after that, the exchange we had, I actually turned to my right. Obviously being on the side of the motorway there are many cars moving very quickly and fairly close by. I then - as I turned to go back to the car I collapsed on the roadway. My left knee stopped working and I fell over onto the ground. I was in full uniform and I realised where I had fallen was actually partially into lane 1 of the motorway. Then the next vehicle that came past was a large vehicle. I believe it was a truck and all the gravel and grit and the vehicle debris that accumulates along the edge of the roadway all blew up into my eyes and my face and my clothing, and I was unable to see for a period of time. It went into my eyes and I rolled towards the vehicle where I believed the vehicle, my police vehicle, was and away from the traffic in order to stop myself from being hit by one of those vehicles because I couldn't see physically where it was. So I rolled towards the vehicle and hit the front wheel I believe, and then I pulled myself up the side of the car and tried to remove the grit from my eyes and sat in the vehicle, in the police vehicle, again and I just tried to clear my eyes, so I could see and operate the vehicle again and I started crying. I had a little breakdown, I believe you call it, at the time. PERRIGNON Q. Please describe that to his Honour? A. I just started crying and started thinking of the many requests for assistance that I had actually asked in writing to repair that knee and how I was never given the opportunity to have it corrected and how I was expected to continue work as a single unit in a vehicle and pursue people without that correct being made. I realised at that stage there was something very wrong with my log or my body and I basically had a little cry on the side of the road. The driver in front of me drove off as usual and it took me some time to clear my eyes and stop crying, and then I continued down the road and I just drove around aimlessly for a while. I was no longer looking for offenders or any traffic problems. Basically I was just trying to get myself together and clear my eyes and get back to work. I realised after a period of time the police radio was talking and talking and talking and it caused me some distress with the way I was feeling, and to protect myself I turned it off. I shut the police radio off. I couldn't listen to it anymore. It was like a conflict. I was thinking things and talking at the radio, it was just all too much. I shut the radio off and I drove around for ten minutes and I was wondering why I was driving around in a police vehicle without a radio and I felt guilty that I was, you know, neglecting my duties and I was unable to continue working. Something possessed me to drive back to the police station. I knew I was unfit for duty, hung the keys up in the station and packed up and went home. I didn't tell anybody. I still had been, you know - my eyes were still red and obviously I had been crying and I didn't want to confront anyone in that state and I just quietly went home." 75The plaintiff then said he took his appointments home with him, meaning, in particular, his firearm. He went on to say this: "I went home and felt guilty for abandoning my duties. I felt worthless and neglected because I hadn't - you know, my pleas for assistance seemed to have been neglected and I was suffering an increasing amount of, you know, distress and at one stage I didn't think anyone cared whether I was dead or alive and I put the firearm in my mouth and I was going to shoot myself twice. I had it in my mouth. I was at home with the family and knew it was inappropriate to be doing things like that but I got to the point where I just didn't think anyone cared and I didn't want to be a burden. Obviously it seemed that my requests for assistance were unreasonable. Someone decided it was an unreasonable thing and I was worthless and not worthy of assistance." 76After giving further evidence of his contemplating suicide the plaintiff said that because of his feelings of guilt for stopping work he called Fairfield Police Station and spoke to the station sergeant, Sergeant Adrian Blackburn, and made a plea to him for assistance, pointing out to Sergeant Blackburn that he was contemplating shooting himself and asking the Sergeant to take his firearm away from him. The plaintiff said that he expected, within a very short period of time, moments, for the police to arrive at his home to take away his appointments but he went on to say that he, "didn't see anybody or hear from anybody from the Police Service for 22 days". The plaintiff said that he stayed at home with his firearm, not on this occasion with his family, but alone for 22 days feeling "neglected, forgotten, insignificant and just a burden because I could no longer discharge my duties and no-one seemed to care whether I was dead or alive." 77It is extremely difficult to know how much of any of this is true. It is clear that no-one was told prior to the plaintiff's giving evidence, of a large vehicle coming close to the plaintiff, throwing gravel, grit and debris upon his person, temporarily blinding him causing this little breakdown. That reeks of recent invention. That there was some breakdown on or about 24 October 1994 is clear. It appears however that the plaintiff has grossly exaggerated the aftermath. 78Exhibit 1 is a report made by the plaintiff at 5pm on 27 October 1994 following upon the event on the M4 that occurred on 24 October 1994. It is this: "Over some period of time, I have been experiencing an increasing level of emotional discomfort and stress culminating in myself contacting Sergeant Blackburn on the evening of the 24th for assistance. I was redirected to Senior Sergeant Heckle from the welfare unit who directed that I attend police welfare on the morning of the 25th. On that date I spoke to Michelle Fisher representing the 'police employee assistance branch'. During much discussion she deduced that both myself and my partner should attend Marriage Guidance. At no time did any suggestion of difficulty from this area arise. There is no problem in this area. To this date assistance sought by the police service has been appalling and has only added to the problem. It is very obvious to me that the Department has no real interest in persons approaching them, in need. On two occasions previous I have sought their assistance and none was supplied. I have been provoked by the service's non-action. I have lost faith in the Police Department's supposed concern for me. It is time to correct the matter by my own methods, as it appears the only avenue left to pursue. I am reporting off sick until such time I have sufficiently recovered from my difficulty, so that I may again correctly discharge my duties. I have no further interest in interacting with Police Welfare. Both Sergeant Adrian Blackburn and Senior Sergeant Paul Heckle should be congratulated for their genuine concern shown towards myself." On the righthand side of the report a number of notations have been made. The first is that Supervising Sergeant Hereth was informed. The second is that the station custody officer, Sergeant Blackburn, was informed. There are then directions that the officer in charge of Highway Patrol was to note the report, as was the patrol commander. This matter then appears: "Police appointments taken possession of by Sergeant Blackburn and placed in the station safe." That has been signed by Sergeant Blackburn. The first thing to note is that the plaintiff was given assistance by Sergeant Blackburn and Sergeant Heckle. The next thing to note is that he did go and see Michelle Fisher, the police psychologist, who advised that the plaintiff and his 'partner' should attend marriage counselling. The next thing to note is that Sergeant Blackburn took possession of the plaintiff's appointments, including his pistol, and placed it in the station safe. 79The plaintiff asked me to accept that after attending upon Michelle Fisher the plaintiff was given back his appointments almost immediately after having surrendered them, but that is not consistent with the notation made on exhibit 1 by Sergeant Blackburn and, if true, raises this problem: why would the Sergeant give back to the plaintiff his appointments unless the plaintiff asked for them and unless the Sergeant had obtained some form of approval from, for example, Michelle Fisher? 80Exhibit 13 is a short report written by Ms Michelle Fisher, a clinical psychologist employed by the Employee Assistance Branch of the NSW Police. That confirms that she saw the plaintiff on 24 October 1994. According to exhibit 13, the plaintiff had previously been seen by other psychologists Dr Jan Westerink and Mr David Taylor, but the evidence does not establish what complaints the plaintiff may have made to Dr Westerink and Mr Taylor. The short report of Ms Fisher continues thus: "Mr Porto had a number of problems at the time of our session, the most pressing of which was a marital problem. As a result I referred him to marriage counselling." 81The further evidence of the plaintiff in-chief about what happened at this time commences at p 28 of the transcript of 24 October 2013. It is this: "A. As soon as I returned to work the sergeant that was on at the time happened to be Adrian Blackburn, the same sergeant that I asked for help with. He immediately removed my appointments and took them into custody. He wrote a note on the side of the actions list and backdated the entry and said that my appointments had been removed 22 days earlier, when they hadn't, and I was then - I grabbed the keys and was told to go and get myself to the welfare branch. He at this point told me that I was unable to drive and my certification had been removed and I was going to be driven there by a junior constable; I was no longer trusted to drive a car. Being a highway patrolman it's - all I wanted to do in the job was drive the car; so that was another blow to my self-esteem and it was very hurtful. So I was drove [sic] to the police welfare branch and I sat down. I was introduced to a female called Michelle Fisher. I sat down and I wasn't in the habit of being a very emotional person prior to that. I certainly never cried very much before that, and when I was in there and she wanted to know what was happening, I knew that she was the only person who could help me. I believe, being in a welfare role, I thought I should be frank with everything that was happening to me and I was frank with her, and told her that I was having nightmares, recurring nightmares, dreams. At this stage I had been occasionally wandering around in public with a loaded firearm. I was trying to instigate violent situations with groups of men. I wasn't in a very good state of mind. I don't know what I became in that 22 days. I was - I turned into some crazed vigilante, walking around looking for trouble. I told her that I had, it was happening to me, that the firearm was loaded. I couldn't sleep. I'd scream in the middle of the night, sweating. I cried. I told her about the injuries that I had again and again and again were required to be surgically you know, surgically repaired and that was ignored. I told her that I had been shot at the academy and nobody cared, nobody even said how I was, and it was covered up. I basically just cried and told her everything that I knew. I did that to be frank, because I wanted her to know everything so she could, in order for her to help me in some manner. Q. What was the upshot of all that? A. After two and a half, two hours of crying and putting my heart on the table and telling her everything and crying like I am now, she told me that obviously, 'Mr Porto', she said, 'your marital situation is affecting your work performance'. She says, 'I suggest you leave that at home', that she was going to organise some marriage counselling for me and that would make everything feel a little better. Q. What was your reaction to that? A. I was outraged. I had a girlfriend that I had been seeing off and on, it was actually a customer, not a customer, a member of the public that her home was burnt down and we had a friendship, no more than a friendship at that stage. Q. So you weren't married at all, is that what you're saying? A. Sorry? Q. Were you not married at all? A. No. No, I was certainly unattached and just had a female acquaintance and no more than that. There was no - she didn't ask me what my marital status was, there was no discussion of whether I was married, single, divorced or otherwise, no discussion in relation to that whatsoever during the whole conversation, and I was appalled at the way that she came to that deduction. I immediately got angry, because I realised that she was - she had fabricated something just to again deny me of any help. When I had been crying and been honest with her for the last two and a half hours, and she stood there and looked at looked me in the eye and lied, and that made me outraged. I punched the table and said, 'You are not going to get away with that. That's just not the way it is. That's ridiculous. I came to you for help and that's what you come up with.'" 82This evidence is very difficult to accept. I find it very difficult to accept that a clinical psychologist, even one employed by the NSW Police, would behave in the way that the plaintiff asks me to believe that she did. 83One will note from what I have just quoted the plaintiff's protestations that he merely had a "female acquaintance" and that he was unattached and there was no more to that relationship. I am afraid that those protestations are blatantly untrue. The first thing to note is that in exhibit 1 the plaintiff referred to his "partner" by which I assume he meant his "life partner". The nature of the plaintiff's relationship with this lady was the subject of crossexamination. On 25 October 2013, commencing at p 18, the plaintiff's attention was drawn to the statement in exhibit 1 that Ms Fisher decided that the plaintiff and his partner should attend marriage guidance. Mr Ower suggested to the plaintiff that his "partner" was in fact his fiancee. The plaintiff then said that she was not, that "we were living together." In answer to some of my questions the plaintiff told me that he was married to that lady by a police chaplain in 1995. The evidence continued thus: "Q. ...the time you saw Michelle Fisher, you were living with this lady. A. That's correct, yes. Q. No doubt as husband and wife? A. No sir. Q. As husband and wife? A. No sir. I wasn't married until... Q. Were you having any form of intimate relationship? A. Yes. Q. To put it bluntly, you were having sex. Correct? A. Yes sir, we were... Q. Yes so you were living together as man and wife. A. Sure, we were. Q. Yes. And indeed to one of the medical practitioners referred to this lady with whom you were living as your fiancée, didn't you? A. She was, yes, at some stage; yes between her being my fiancée and the marriage was a very short period, it was a 12 month period, and it happened, yes, sometime during 1994, I ask her to marry me." The plaintiff was then taken to a history recorded by Dr Graham Edwards when he saw the plaintiff on 24 February 2009. The plaintiff had described his lady friend to Dr Edwards as his fiancée. On p 20 of the transcript of 25 October 2013 the plaintiff accepted that the lady friend may have been his fiancée at the time he was interviewed by Ms Fisher. 84On 20 August 2012 the plaintiff sent an email to PSAC; in other words, to the defendant. That eventually became exhibit 7. In exhibit 7 the plaintiff said this: "I attended the police welfare and after asking for help crying for nearly two hours, it was deducted that I had a marital problem, and spousal assistance courses was promised. I was single at that time and I was not even aligned with any female. A deliberate attempt by the NSW police and state super to deliberate [sic] deny me any help, probably just to save some money, at my life's expense." Of course, neither the defendant nor PSAC had anything to do with the plaintiff in 1994. The important thing to note is the protestation made by the plaintiff that he "was not even aligned with any female" when he went to see Ms Fisher. The plaintiff was crossexamined about that statement on 30 October 2013. This evidence was given: "Q. You then go on and say, 'I was single at the time, was not even aligned with any female.' That's a lie, isn't it? A. We were living together with an associate - my then to be fiancée. We were looking at forming a relationship and then moving towards being married. At that stage there was no engagement. There was no marriage. We are just living together. We had purchased a house together in commitment to each other. I believe that to be true. HIS HONOUR Q. Excuse me, Mr Porto. On Friday you told me, or one day last week ... 'We were living together, yes.' That you were living together. You were having an intimate sexual relationship with each other? A. Yes. Q. And that you and she had both engaged upon the mortgage? A. That's correct, yes. Q. You bought the house together in other words? A. That's correct, sir. Q. And yet you are saying in this letter, 'I was single at the time. Was not even aligned with any female'? A. To my point, it certainly wasn't legally aligned. There was no official engagement between us. We were not married. There were no arguments between us. The only link we had was the mortgage. Q. Being aligned with a female means being married to her, is that what you want to tell me? A. Well, being married or being promised - or promised to marry her. Q. Being aligned with a female might just mean you are keeping company with somebody. You were seeing them. You were boyfriend and girlfriend. I don't mean having sex. I just mean that you were courting each other. A. We were like two bachelors who happened to move in together who had similar things. The love and the intention to marry didn't come until much later." No matter what piece of "spin" the plaintiff wants me to put on his evidence about his relationship with this lady, the fact is they were living together in a property they had bought together. They were in an intimate sexual relationship. They may have been affianced at the time. The engagement lasted for 12 months and the couple were married by a police chaplain in 1995. The plaintiff clearly was telling untruths in the communication he made to PSAC on 20 August 2012 and clearly distancing himself from the advice that was given to him by Michelle Fisher when she saw him on 24 October 1994. 85There is no evidence before me as to how long the plaintiff was off work. There is no evidence before me in the hearing. There is some evidence in an exhibit on an interlocutory application, exhibit A-A, but that was never tendered in the substantive proceedings. Whether the plaintiff was off work for 22 days or not I do not know. 86The plaintiff was to confirm in cross-examination what he had said inchief about roaming as a vigilante with his pistol but whether that actually occurred, again, I do not know. I am completely in the hands of the plaintiff. If the plaintiff was doing that it does not appear to be consistent with a diagnosis of PTSD.

[11]

THE PLAINTIFF'S RESIGNATION 87On 31 March 1995 the plaintiff gave notice of his resignation. That notice is exhibit 2. The substance of the document is this: "I hereby wish to give notice of resignation from this date, being 31 March 1995. I understand that a 30-day period must expire after the submission of written notification, that being the situation, my final date of duty would fall on 30 April 1995. My reasons are of a personal difficulty arising from the Police lifestyle, and other associated social disadvantages I have endured since the commencement of duty with this service. I do not wish to further disadvantage myself by remaining in this situation. I have enjoyed my service and have no immediate grievances with the New South Wales Police Service." That document has been endorsed by, it would appear, the acting patrol commander at Blacktown with this notation: "Noted and accepted after extensive conversation with Constable Porto." The plaintiff never explained what he meant by "difficulties arising from the police lifestyle" and "other associated social disadvantages". The usual social disadvantages are the need to perform lengthy and alternating shifts which disrupt one's lifestyle. Working for the police is not an eight-hour day, five days per week, with a fixed weekend. Long and rotating shifts often interfere with familial relationships. 88Although the plaintiff believed that his notice of resignation would take effect on 30 April 1995, in fact, it took effect on 28 April 1995. As I mentioned at [1], after resigning the plaintiff applied for and received the contributions that he had made to the Police Superannuation Fund and also applied for and received pro rata long service leave. His application for the pro rata long service leave bears date 5 April 1995 and is exhibit 3. The substance of that document is this: "BACKGROUND On Friday 31 March 1995, I tendered my resignation from the New South Wales Police Service. This largely has been the result of a pressing domestic situation in which I have little or no success in being able to stem. This situation has become intensified to the point that through no choice of my own, I must leave this course of employment. This situation caused me to be unable to discharge my duties at all, and I placed myself on sick report in a state of anxiety and stress from 27 October 1994. As a result, I attended the Police Welfare Section on 17 November and was consulted by a Dr Grey there. He then suggested that I be counselled by a psychologist, Michelle Fisher. This matter may be verified. As a result, I was directed along with my then future spouse to attend marriage crisis counselling. Since that date, I have attempted to make good this situation but the nature of my duties disallow me to correct this situation, so the difficulties have escalated to the point where I cannot continue. COMMENT As a result of this information, I have resigned not through choice but I have concluded that I must take this course of action to eliminate this problem. I have contacted the Police Association through a Mr Andy Wright who advised me of this course of action." The document then goes on to make the formal application. 89That application was supported by a report from Inspector McFadden, the staff officer for the Prospect District in which he refers to the plaintiff's "ongoing domestic situation" and to which he attached the short report of Michelle Fisher of 26 April 1995 which I have earlier quoted in [80]. Exhibits 2 and 3, the report of Inspector McFadden exhibit 12, and exhibit 13, all point to the reasons for the plaintiff's resigning from the Police Force being some domestic upset which was being made worse by the nature of the plaintiff's work habits. 90The plaintiff was cross-examined about this by Mr Ower. With reference to his application for pro rata long service leave, this question and answer was recorded: "Q. What is the pressing domestic situation that you refer to in this document? A. Okay, when I originally responded to going to welfare, they decided it was some sort of marital issue. Now, when it got to the point of asking in this document that we are talking about now where I have actually asked for the pro rata payment so I could survive when I left, this was not the time or place to raise other issues, the previous issue again, and go into the non-assistance and why I felt ignored, and this was not the place for that. I wanted to get through this process easily, quickly and expediently so I could have moneys released to me for my pending release. Now, the only pressing situation, sir, was that my wife was reminding me that, 'You have tried many times to be assisted. They don't care about you. Please look after yourself. Do the right thing and leave them because you are only going to get worse, you are only going to get damaged worse' and she was concerned about my welfare." I am afraid I am unable to accept that evidence without corroborative evidence being given by the plaintiff's wife. It is significant that such evidence was not called. 91The plaintiff was challenged about why, at the time of his resignation, he did not seek to be medically discharged and seek to obtain a HOD pension. In-chief this evidence was given: "Q. Did you apply for a hurt on duty pension at that stage? A. No, I had no intention of doing that at all. Q. Why? A. I'm not about money. Not about money. I'm about - it was just about getting my knee fixed and I couldn't get my knee fixed, so I left the job and just considered my injuries as collateral damage and never expected to be compensated, to have an operation. I was escaping with the injuries that I had and expected to have those for the rest of my life, and walked away from the job copping that on the chin. I didn't expect anything from the Police from that point on because I knew I had asked for it and none was ever given, so I expected nothing from them. I was lucky just to be away from the damage and the influx of problems just to try and settle myself down personally." In other words, what the plaintiff was saying was that he left because, in particular, the problem with his knee had not been "fixed". However, the problem with the plaintiff's knee was not attended to until some eight years later. Exhibit N is a report of Dr Robert Elliott dated 28 April 2013 addressed to Dr Ranasinghe of Blacktown. There is no evidence before me from Dr Ranasinghe. The report of Dr Elliott commences thus: "Thank you for your letter concerning this patient whom I saw today. He has had a problem with his left knee since he fell jumping over a fence in 1992 when he was in the Police Force. He felt something crack in the right knee and he later saw an orthopaedic surgeon who recommended an arthroscopy with a view to repairing his anterior cruciate ligament. Due to various factors he did not proceed with the abovementioned surgery and has now left the Police Force. He still has problems with his right knee with occasional giving way, clicking. There is some discomfort on descending stairs but he is unable to run or play sports. His general health is good. He takes no medication." After examining the plaintiff's left knee Dr Elliott expressed the view that he should undergo arthroscopy with a view to carrying out a reconstruction of the anterior cruciate ligament. That was performed on 25 November 2005 with further surgery being practised on 25 August 2006. There are no operative reports from Dr Elliott but the surgery is summarised on p 3 of the report of Dr Endrey-Walder of 14 March 2008. 92What caused the delay between the plaintiff's first seeing Dr Elliott on 28 April 2003 and the surgery that was first practised on 25 November 2005? The reason for the delay appears to me to be because the plaintiff applied to the NSW Police for the Force to cover the costs of the surgery proposed. Exhibit L is a letter from a claims officer of the Workers Compensation Section of the NSW Police to the plaintiff bearing date 12 September 2005. The letter commences thus: "I refer to your claim for Hurt on Duty benefits for a left knee and left ankle strain, sustained on 1 October 1992 and to your appointment with Dr Pillemer on 27 June 2005. Please be advised that Dr Pillemer found: (1) Your ongoing symptoms in the left knee are the result of the work incident on 1-10-92. (2) It is in order for this section to meet reasonable costs for an anterior cruciate ligament repair. In light of the above this section will consider any written request by your treating specialist for surgery." The letter goes on to request the plaintiff to complete medical authorities so that the Workers Compensation Section of the NSW Police could gather the appropriate clinical notes. When the plaintiff did apply to the Police Service to have his knee treated, the Police Service admitted liability for it and appears to have paid for it. 93The first orthopaedic surgeon to whom the plaintiff was referred, who is mentioned in the report of Dr Elliott which I have earlier quoted, is Dr Harrison whom I assume to be the well-known Dr John Harrison. According to the history obtained by Dr Endrey-Walder the plaintiff was referred to Dr Harrison who diagnosed a tear of the anterior cruciate ligament and recommended surgical reconstruction. Dr Endrey-Walder's history continues thus: "After due consideration Mr Porto decided against surgical repair because of the expected prolonged post-operative recovery and rather elected to do his own strengthening exercises in a regular and sustained fashion. On 7 June 1994 he had a day off work 'due to the previous evening's manipulation of the knee'. He wrote (4 July 1994) to his superiors, by 'manipulation', referring to his own vigorous exercises. He remarked that, 'Occasionally I would have a day off here and there' on account of symptoms at the knee." Dr Endrey-Walder's report then continues with a description of the incident on the M4 on 24 October 1994. One can see, therefore, the delay in the treatment of the plaintiff's knee was caused by the plaintiff's initial decision not to undergo operative treatment by his electing to do his own strengthening exercises and then by delaying to do anything after resigning for a period of some eight years. Further delay was caused when the Police needed to assess whether the plaintiff's knee condition was still compensable, but clearly the Commissioner of Police decided that the condition was compensable and it appears that the surgery practiced by Dr Elliott was paid for.

[12]

THE PLAINTIFF'S SUBSEQUENT EMPLOYMENT 94After leaving the police force the plaintiff joined a friend of his who had a "windscreen business" and the plaintiff assisted him, it would appear, mainly as a driver. However, he had a falling out with that gentleman. The plaintiff said this: "I wanted to try and break out and we were going to try and expand the business but I'm a particularly - I happen to have a very good skill at business. I'm usually fairly good with people. This other chap that I was working with doesn't have any. He has got the skills of a zoo animal when it comes to dealing with people, so we had some disagreements as far as business went and we parted company in the year 2000 which was five years after I resigned ..." 95The next action of the plaintiff is completely inconsistent with the finding that the plaintiff had PTSD and was incapacitated by it at the time that he resigned from the NSW Police with effect on 28 April 1994. After the falling out with the gentleman who had the windscreen business the plaintiff applied to re-join the Police Force. The plaintiff gave fairly consistent evidence about this. The plaintiff told Dr Klug, when he saw him for a second time on 12 July 2011, this: "He had applied in about 2000 to re-enter the police and got to the stage of being fitted out for a uniform. However, his knee injury interfered with his return to work as a police officer." Associate Professor Glozier, who saw the plaintiff on or about 6 February 2012, obtained this history: "In 1999 he reapplied to join the Police Force. He described this as his 'one true love', but even having been re-accepted, did not show up for the medical because of his 'busted knee.'" In chief, the plaintiff said this: "I reapplied to join the police service in the year 2000, five years after I left. At that stage they were encouraging re-joinees, and I moved away from the windscreen business and reapplied to come back to the police to which I was accepted. I passed the IQ test and all the regular tests. It got to the stage where I was given an appointment to come in and do the medical, full medical with a medical examiner, at a particular time and I realised that I was never going to pass that test because my knee was loose and would fail, and I wasn't in a state to go to the academy or do running or jump. So I left a nice long a message on their answering machine that morning, explaining why I couldn't come back, because I was wasting everyone's time because I wasn't in a fit and proper physical state at that stage to go back to my police duties which really hurt me. It's all I ever wanted to do." The plaintiff then went on to point out that his family had a long history of being involved in policing in Sicily. 96In cross-examination about this the plaintiff gave this evidence: "A. After a period of time I started to - well, it was a five-year period, and then I reapplied to join the police service in the year 2000. Q. Could it have been the year 1999 rather than 2000? A. It could have been. I believe it was the 2000 mark. Q. In any event, when you did reapply, you didn't turn up to the medical because as far as you were concerned your left leg was no good, it was busted. A. I knew my application was going to be stopped at that stage and I was wasting everyone's time. Q. There was nothing at that stage that stopped you from going to that medical because of a psychological problem, was there? A. No. It was.. Q. Because.. A. Physical at that stage." There were then some objections to questions, and the plaintiff agreed that the medical examination he failed to turn up to was a full physical examination. He also admitted that he was not getting any psychological treatment at that time, and then went on to say that after 2000 he worked on in his own business until he underwent knee surgery. 97The plaintiff's re-applying to join the NSW Police is completely inconsistent with the presentation he made to me and that he made to medical practitioners who have examined him psychiatrically. For example, Associate Professor Glozier said this in his report of 6 February 2012: "I am of the opinion that the gross disturbance in interpersonal relationships, inability to tolerate other people, poor concentration, difficulty focusing and aggression would currently render Mr Porto completely unemployable in the open [labour] market." Under the heading, Mental State Examination, Associate Professor Glozier recorded this: "He was initially highly irritable, bordering on the aggressive. He stated that he was testing me and that he had suggested to his wife that if things did not go right he would be brought home in handcuffs and there would be 'blood everywhere'. This threatening stance diminished during the interview and he attributed his initial irritation, in part, to his perceived treatment by Dr Samuell. Throughout the interview his affect was labile, ranging from anger, expressions of wanting vengeance to spending much of the time being tearful and anxious. He described a pervasive dysphoria, anger, middle insomnia with panic, anhedonia, lack of motivation, reduced energy, poor concentration, no change in appetite, recurrent thoughts that the world would be better off if he was not around, but no frank suicidal ideation, rumination about the way he feels he has been treated, social avoidance, at times intrusive thoughts and images of incidents in the Police Force. He has numerous negative and angry cognitions dominated by feelings that he wants vengeance against the Police Force. He has a degree of paranoia which was not delusional and I could not elicit any hallucinations. In terms of outcome, he needs people to understand how seriously his life has been affected. He wants there to be recognition of what has happened to him, for things to go back to the way they were before and some degree of reckoning for his wife. He describes his life as a 'mission' designed to achieve these. Conversely, he also knows that it is highly unlikely that he will receive any formal apology or satisfactory outcome and that the only way he can 'hurt them' is through money. He describes this in a rather fixated and obsessive fashion." That is hardly the description of a man who applied to rejoin the Police Force in the year 2000 and satisfactorily passed the IQ test but did not proceed with his application because of the condition of his knee. There was something that clearly changed in the plaintiff after his knee had been surgically repaired by Dr Elliott. 98The observation which I have just made is inconsistent with the irrefragable facts. I cannot made any finding inconsistent with the irrefragable facts. The point I wish to make is that the change in the plaintiff's evidence between his re-applying to join the Police Force in 2000 and his presentation to Associate Professor Glozier in February 2012 makes it very difficult for me to accept what the plaintiff says about himself prior to 2000. 99As I have earlier mentioned, the plaintiff then embarked upon a business. He gave this evidence in chief: "What I did was I realised I wasn't able to go back to those duties [police duties]. That wasn't the time or place or the forum to go discussing the problems that I had previously, so what I did was I went back to what I learned from the previous employer doing that windscreen trade and I picked up - I organised myself a little job where I could advertise a particular windscreen to be replaced and then I would take the calls and then get other people to do the job and I would work on a commission basis where I could be paid but not have to do any physical work in order to get by. I did that continuously until I couldn't walk and was having trouble and limping heavily - I think it was halfway through 2004 where one of my friends, Sergeant Stephens [?Stevens] now, he mentioned to me that I didn't need to suffer with that injury that I should have been repaired and the police were responsible for the injury to be repaired. So I was getting older and the injury was impacting on me. I was limping heavily. There was more pain and I decided to then approach the Police Service just to have an operation. It was just to get the operation. I actually called the Police Service and told them, basically, on the phone what I needed. She said to me, 'I can't believe that occurred'. She said, 'You go and get yourself..'" The plaintiff then went on to admit that what he was saying was hearsay. 100In late 2005, perhaps October or November, he sold that business. The plaintiff volunteered that he "virtually gave it away". The timing of the sale of that business is of course consistent with the performance of the arthroscopic reconstruction of the plaintiff's left knee by Dr Elliott on 25 November 2005. 101On Monday, 3 January 2005 the plaintiff had come under the care of Dr Sofia Yusuff, a general practitioner who he was to see thereafter on many occasions. The records of Dr Yusuff and of the colleagues in her practice are exhibit O. It is clear that Dr Yusuff was to refer the plaintiff back to see Dr Elliott, who was to perform the surgery at the end of that year and also in 2006.

[13]

THE PLAINTIFF'S APPLICATION UNDER THE ACT 102In September 2007 the plaintiff went to see Mr Edmunds who is the plaintiff's present solicitor. Mr Edmunds, of Messrs Baker and Edmunds, is a regular practitioner in the Special Statutory Compensation List. In other words he is a gentleman who has expertise in litigation under the Act. The plaintiff conceded in chief that the process of applying for a HOD pension and the resulting litigation made his condition worse. On 24 October 2013 in his evidence-in-chief the plaintiff said this: "The investigations exacerbated stress and sleeplessness, irritation and aggression. The process has exacerbated the feelings that I had because of the constant reliving and revisiting and revisiting and revisiting. It brings it all back and it makes it all very vivid. I guess in 2009 there was a lot of that going on." 103On 5 August 2008 the plaintiff made an application for medical discharge benefits for a former member of the police force, pursuant to s 10B(2) of the Act. That application was received by the defendant on 7 August 2008. In that application the plaintiff referred to his being shot in the stomach, when clearly he was not shot in the stomach. A bullet may have approached close to his abdomen, but did not penetrate his body. The plaintiff, in that application, made no complaint about fearing an offender shooting at him in the event on 1 October 1992. When crossexamined about that the plaintiff agreed that he did not make any such mention, but he said that there were "a myriad of other incidents". Mr Ower then crossexamined the plaintiff about the three incidents which were added to the statement of claim on the first day of hearing and he agreed that after each of those he did not seek medical assistance or counselling and that he took no time off work. 104It is clear from the material before me that the plaintiff supported his application for a medical discharge with support from Dr Peter Klug of 16 June 2008, and of Dr EndreyWalder of 14 March 2008. The defendant sought a medical opinion from Dr Graham Edwards, who, based on the history given to him by the plaintiff, agreed with the diagnosis of a posttraumatic stress disorder with associated depressive features. There was no contest, it would appear, about the fact that the plaintiff's knee injury and the need for subsequent surgery had caused an incapacity to do police work. It would appear that the decision of PSAC made on 24 September 2009 concerning the plaintiff's left knee injury was based on the opinion of Dr EndreyWalder and the finding of posttraumatic stress disorder with depressive features was based on the opinions of Drs Klug and Edwards. 105As I mentioned at the commencement of these reasons, on 8 October 2009 the Commissioner of Police accepted that the suffering by the plaintiff of the infirmity in his left knee was caused by his having been hurt on duty. The defendant then sent to the plaintiff a letter bearing date 14 December 2009. That became exhibit 5. The plaintiff initially said that he could not recall receiving the document and then later denied receiving the document, but why he did not receive it has never been adequately explained, nor is there any evidence that it was returned to the defendant. The letter itself indicates that the pension benefits were being deposited in the plaintiff's Westpac account. He had such an account. The details of that account must have been previously given by the plaintiff or his solicitor to the defendant. At the foot of the second page of the document is a heading "Increased pension benefits". It commences thus: "As the injury relating to your discharge occurred after the 21 November 1979, you are advised of the provisions of s 10(1A) of the Police Regulation (Superannuation) Act 1906 as set out hereunder". The letter then sets out the terms of the subsection and continues in this fashion: "Should you desire to lodge a claim for payment of additional pension as set out above, it will be necessary for you to submit to us the completed PSS form - Application Form for an Increase in an 'hurt on duty' invalidity pension: s 10(1A). Please contact Customer Service for a copy of this application form, which will include explanatory notes and a fact sheet." It is important to bear this in mind because of the plaintiff's application for backdating of his pension. In any event, the terms of s 10(1A) of the Act would have been well known to the plaintiff's solicitor. The letter of 14 December 2009 (exhibit 5) contains an error. It refers to the plaintiff's pension as having commenced on 29 April 1995. It did not. A letter of 10 February 2010 which became exhibit 6 shows the pension commencement date as being 7 August 2008, the date on which the defendant received the plaintiff's application for medical discharge. The plaintiff admitted in his evidence that the letter of 10 February 2010 was because he rang up the defendant and spoke to a lady to clarify the commencement date of the pension. In cross-examination on 25 October 2013 the plaintiff said at p 49 line 36: "You queried the amount that was paid into that [Westpac banking account] by giving State Super a call, didn't you? A. I did. I believe it was a call, yes. On the following page this evidence was given: "Q....it couldn't be right if the commencement date was April 1995. That's why you queried it and that's why you got this confirmatory letter correcting the date. Do you accept that? A. Sure." Exhibit 6 was then tendered, the letter of 10 February 2010. That is a clear admission by the plaintiff that he had in fact received the letter of 14 December 2009 which was exhibit 5. I cannot accept the plaintiff's averment that he did not receive exhibit 5. 106Rather than applying for an increase in the pension that had become payable to him as a result of the certificate of the Commissioner of Police of 8 October 2009, the plaintiff decided to commence proceedings against the Commissioner of Police, seeking a finding that the suffering by the plaintiff of the infirmity of post-traumatic stress disorder with depressive features was caused by his having been hurt on duty. The statement of claim was dated by Mr Edmunds 21 February 2010 and was filed on 25 February 2010. As I have earlier mentioned, consent orders concerning that application were filed in this Court on 15 November 2010. 107On 20 April 2011 the plaintiff signed an application for an increase in his pension benefits. However, that was not received by the defendant until 14 December 2011. The defendant considered that application on 26 July 2012 and determined to increase the plaintiff's pension to 90% of the salary of his office. That decision was advised to the plaintiff's solicitor in writing by registered letter dated 27 July 2012. The decision of the defendant was to only pay the increased pension from 14 December 2011, which is the date on which the application for the increased pension was received.

[14]

OTHER MATTERS RELATING TO THE PLAINTIFF'S CREDIT 108There are some further matters concerning the plaintiff's credibility which need to be considered. The first is his resort to cannabis. The plaintiff was first examined by Dr Klug on 4 March 2008. The doctor's report bears the date 16 June 2008. On p 5 of that report is this: "There is no history of alcohol or other recreational drug use or dependence, apart from having tried cannabis in his youth." Many people experiment with cannabis in their youth. That is hardly a remarkable history. The plaintiff saw Dr Endry-Walder on 14 March 2008, but that Doctor did not obtain any history about the plaintiff's consumption of cannabis. In 2008 the plaintiff had been sent by Dr Yusuff to Dr Anna Popova, a consultant psychiatrist. The plaintiff admitted to Dr Popova a "past history of smoking cannabis". One could be forgiven for thinking that the plaintiff had given up taking cannabis in the past. The plaintiff was seen by Dr Graham Edwards on 24 February 2009. The Doctor's report bears the date 2 March 2009. That Doctor recorded a history that when the plaintiff was "younger" he used cannabis. That is consistent with the history recorded by Dr Klug. On 20 July 2009, the plaintiff saw Dr Doron Samuell for the Commissioner of Police. Dr Samuell's report bears date of 23 July 2009. Dr Samuell obtained his history: "Mr Porto told me that he does not drink or smoke. He said, though, that he 'tries cannabis occasionally'. He said that he last took cannabis three days ago." Dr Klug saw the plaintiff for a second time on 12 July 2011. The plaintiff told Dr Klug that he did not use any hypnotics to help him with his sleep apart from a herbal preparation. The plaintiff also told Dr Klug that he did not use alcohol or any other recreational drug including tobacco. The plaintiff was seen by Associate Professor Glozier on or about 6 February 2012. Associate Professor Glozier obtained this history: "Mr Porto stated that he uses cannabis on a fairly frequent basis to calm him. He used some this morning. He stated that he wanted to be honest about these. He denied any other illicit drug use." Of course, if the plaintiff wished to be honest, he would tell all the medical practitioners the same thing. What he told Associate Professor Glozier might be consistent with what he told Dr Samuell, but is inconsistent with what he told Dr Klug and Dr Edwards. In evidence on 4 February 2014, the plaintiff told me that he smoked cannabis for pain relief and because it improved his mood. He was crossexamined about the history given to Dr Glozier of daily use. In reexamination the plaintiff told me that in 2008 he sometimes took cannabis in order to enable him to sleep. He also said that he took cannabis to relax. He also told me that he took cannabis to give him a better mood and to make him more amiable. 109However, a better clue to what the effect of the cannabis had on the plaintiff can be obtained from the records of Dr Yusuff and her partners which are exhibit O. On 30 April 2007, the plaintiff saw Dr Yusuff and told her about having a knee reconstruction 18 months previously, and of having low back pain for a year. She recorded that the plaintiff was taking Mersyndol and also cannabis. The notes record that the plaintiff was depressed secondary to his cannabis use, and that he was suffering from palpitations and anger and was hyperactive, secondary to cannabis withdrawal. The Doctor noted that she wished to review the patient later in the week concerning his medications. She gave him an information sheet concerning cannabis. There was a consultation on 4 May 1997 when the plaintiff told Dr Yusuff that he was unable to take Mersyndol as he was addicted to it, according to him. The plaintiff complained of palpitations and of being aggressive. The Doctor advised the plaintiff to take Panadeine Forte. On 11 May 2007, Dr Yusuff recorded that the plaintiff had stopped smoking cannabis two weeks previously and that he had no withdrawal symptoms over the last seven days. On 21 May 2007, Dr Yusuff recorded that it was necessary to increase the plaintiff's dose of Xanax as the plaintiff had been on cannabis for "two years". She made a diagnosis of substance abuse. The next occasion that cannabis is mentioned is on 2 October 2009. On that occasion the plaintiff saw Dr Yusuff and gave a history of taking two cones of cannabis a week. The next consultation in which the subject of cannabis is mentioned was on 17 November 2012 when the plaintiff told the doctor that he was "off cannabis". Based merely on those records, one could see that the plaintiff had been taking cannabis for two years prior to 21 May 2007. That is from May 2005 onwards, that as a result of his cannabis ingestion, he was suffering from depression, hyperactivity and anger, and when he sought to withdraw from that, had withdrawal symptoms for a week, but he subsequently relapsed and, according to associate Professor Glozier's history, was still, in February 2013, a frequent user of it on an almost daily basis. 110Histories given by the plaintiff to Dr Klug and Dr Edwards clearly are inaccurate, and the evidence of the plaintiff about his consumption of cannabis is, quite frankly, "all over the shop". It is clear that his cannabis ingestion was so extensive that he had withdrawal symptoms, and that the cannabis itself could lead to symptoms of anger, depression and paranoia. 111Other parts of the plaintiff's history are also likely to be inaccurate. In general the plaintiff told most medical practitioners that he had an uneventful childhood and upbringing and did socially well at school. However, Dr Anna Popova records that his father had anger problems, and anger problems are something the plaintiff currently suffers. Furthermore, the plaintiff told Associate Professor Glozier that he was bullied at school because of his short stature, and that must be contrasted with, for example, Dr Samuell's history that the plaintiff had, "no social difficulties," when he was at school. 112Another fact which has to be borne in mind in assessing the extent of the risks to which the plaintiff was exposed in the course of his Police Service are other reasons why the plaintiff left the Police Force. In crossexamination on 25 October 2013 the plaintiff volunteered this: "I resigned when the COPS system came in, I had some trouble understanding the concept of using it, and it was also one of the factors that made me not want to continue doing the job, it made every report three times the length to report and it made things very difficult for us, in the early days at least." In other words, the introduction of the COPS system made the plaintiff's duties more onerous, and that is something that he took into account when he submitted his resignation on 31 March 1995. 113I have earlier drawn attention to the findings on mental state examination of Associate Professor Glozier and part of his opinion. Another part of the Professor's opinion is contained in his "Summary." It is this: "Mr Porto describes the onset of psychological symptoms over the late 1980s and early 1990s that would certainly have met the criteria for a Major Depressive Disorder (he has both cardinal features of depression with at least four other features) and possibly a Post-Traumatic Stress Disorder (he has at least one criterion A and has intrusive and avoidant, but no hyper-arousal phenomena). These symptoms and associated psycho-social impairment have continued since that time. There have been varying levels of severity but now he continues to present with symptoms and impairment that would continue to meet the diagnostic criteria for Major Depressive Disorder, but not fully for PTSD currently. He has received virtually no treatment: very short exposure to an antidepressant, although a longer exposure to a short-acting benzodiazepine for his high levels or arousal, irritability and anxiety. It is likely the degree of pain and associated sleep disturbance perpetuate his disorder. The primary perpetuating factor appears to be his sense of retribution and vengeance towards the police force and the anger associated with that. This prevents him from undertaking any treatment." That the plaintiff has had extremely little treatment is undoubted. The plaintiff has been prescribed various medications for his psychiatric condition but appears not to persist with taking them. 114The extent to which the plaintiff seeks retribution and vengeance can be seen in various complaints that he has made over time. It is clear that in making these complaints, the plaintiff has grossly exaggerated certain things and made statements which are patently untrue. The plaintiff can be seen to be quite "loose with the truth." The plaintiff has made complaints to the Commissioner of Police, the Minister for the Police, to the defendant, the Police Association, the Police Integrity Commission, and the Independent Commission Against Corruption. The plaintiff referred to his having sent "at least a dozen letters" of complaint. 115To one letter addressed to the Minster for Police he received a response. The plaintiff said this in cross-examination: "I had an automated response after letter number nine, because I claimed he was a coward and he didn't have the decency to reply to me, and I was going to mention it in future media matters that I was going to raise if I wasn't listened too. There had been a history of me not being listened to time and time and time again, and I felt that everything that I was - every contact I had made with him was either falling on deaf ears, shredded, ignored, or just plain thrown away. The only way I got a reaction from them was the one automated message on email number nine and I think email number 13. I wrote a letter to the Police Minister, Mr Gallaeher, and called him a faggot and a coward, just to get somebody's attention. I don't know whether anyone was even reading my emails, sir. After that I got eight police attending my home and had me forcibly removed to try and have me scheduled to try and discredit me." It appears that on 26 June 2012 the plaintiff was taken by police to Bungarribee House at Blacktown Hospital, pursuant to Schedule 2 of the Mental Health Act 2007. The plaintiff could not even describe this event without including in it self-serving hyperbole. The plaintiff said this on 25 October 2013 at p 54 of the transcript: "They removed me from my house and attempted to schedule me. I explained at length to the gentleman there at Bungarribee House what had occurred to me, and after 40 minutes he put his arm around me and said, 'Sir, you're the most rational, reasonable, and patient man I have ever spoken to in this building'. He put his arm around me and encouraged me to put my head down and work hard, because he heard the story that I had been telling him many, many times before. I actually lectured all eight police that were standing in a semi-circle around me about my circumstances and how I was going to be somebody who was going to stand up for this cause, and I was doing it all for their benefit. They were all post-89 folk and they were very junior police, and at the end of that lecture, sir, none of them can look me in the eye; they were all staring at the tips of their shoes, but they took me anyway, because they were under instruction by police minister." The reference to the "post-89 folk" is a reference to the fact that the Police Superannuation Fund closed on 1 April 1988 and those who joined the police force from 1 April 1988 are not entitled to superannuation or other benefits under the present Act. I doubt very much that any medical officer at a psychiatric institution would describe someone who was brought there by police as, "the most rational, reasonable, and patient man" that he had seen, and the plaintiff did not present to me as either rational, reasonable, or patient at all. I suspect that the police who took the plaintiff to Bungarribee House were probably tired of listening to one of his tirades. 116The nature of the plaintiff's complaints to various public authorities can be seen in exhibit 7, an email sent on 20 August 2012 to the defendant, and in particular to PSAC. It is worth consideration: "Your recent determination on 26 July 2012 is both grossly inadequate, and will do nothing to hide your exposure to the Australian media and subsequent parliamentary and ombudsman enquiries, which would arise from your poor attempt to put a lid on this deliberate and senior police directed neglect. Your client, the police service, probably failed to inform you of several things mostly stemming from their deliberate denial, to duty of care, of suicidal and seriously injured (physical and mental) member of the police force. Senior police covered up my police shooting in police time whilst the offender was disciplined. I still carry the burn mark to my stomach when I almost died, which will be shown to the Australian public if you force me to escalate: senior police thought my life wasn't worth even an "Are you OK?" response ... a cowardice and deliberate act. I became a police hero by arresting two armed males after they smashed two elderly females across the face, and escaped with a bus company payroll, but during which I had a firearm levelled at me, so I jumped from my unprotected and prone position to save my life. Causing a serious surgical injury, which again after three written official requests were dismissed as unnecessary, and so I was forced to continue to work as a single unit, with a seriously damaged left leg, and nobody gave a damn. After feeling suicidal and frustrated that I kept on collapsing at work, the last time I was almost run over on the M4 motorway, with zero assistance or help from police. I attended the police welfare and after asking for help, crying for nearly two hours, it was deducted that I had a marital problem, and spousal assistance courses was promised. I was single at that time and was not even aligned with any female. A deliberate attempt by the NSW police and State Super to deliberate deny me any help, probably just to save some money, at my life's expense. Now throwing money at it doesn't heal the cunning and deliberate denial, I have had to suffer because of your greed and culpability of both of your organisations. Your operations are both corrupt and transparent and I intend to expose both of you, and open a Pandora's Box, and invite any other police who also suffered this deliberate police and State Super corruption when I appear on media programs and radio media investigations in perhaps before the end of the year, definitely in the near future. Thanks for not considering all of the circumstances. Very soon you will have to publicly explain why your determination was self-serving and corrupt, and I will not stop until both you and the police take full responsibility for your corrupt and systemic denial of police duty of care. It seems the old adage "a stitch in time saves nine" is true when you consider that some assistance, given at the right time, especially when I had a breakdown at work psychologically, and with a neglected legitimate police knee injury, which has now through your client's neglect and denial of what is written in law, has reduced my life to a disabled and crippled body and mind, with no friends no health and no future prospects of doing anything worthwhile. I'm just now imprisoned sitting here in my house waiting to die ... as a direct result of yours and the corrupt police service's denial of that which is just and rightfully mine. Settling the psych issue, starting a payment from the December 2011 is self-serving and corrupt seeing that I have suffered the same injuries, documented and true, since 1992. Twenty years of neglect, seemingly suitable to compensate someone for a molested, denied and wasted life, which you all condone. I have decided to make this my life's work to uncover both police denial of any duty of care, and the way in which police are lied to and disrespected, in order to save money. PSAC has become nothing but a corrupt puppet of senior police, who directed this neglect and will be exposed along with your poor attempt to fix this with a miniscule amount of $5,000. Are you guys kidding?? ... a transparent and self-serving $$ saving exercise. Shame on you all. I wonder how any of you sleep at night, trying to deny heroes and hard-working worn out and deliberately destroyed police of their rights. Your corrupt associates have been keeping very important information from you because they are embarrassed and know that their deliberate non-action, is now going to cost you a shit-load, not to mention the public exposure you will endure. I suggest you get all the information which has been held back from you as a direct result of their deliberate non-assistance. It looks like they dropped the ball, and you guys are going to have to pay for it. I will never forget what you guys didn't do for me. Hell, it may even motivate others to come out of the woodwork. You all deserve what's coming to you unless you fully comply and suggest realistic compensation for mine and my family's wasted lives." There follows the plaintiff's signature, the date, and his subscription, "The walking dead man." 117Despite what the plaintiff said in the second paragraph of this missive, there is no medical evidence that the plaintiff has actually had suicidal ideation. True it is that he told me that in October 1994 he put a pistol into his mouth twice, but there is only his evidence of that and no corroboration for it. 118In the third paragraph there is a clear reference by the plaintiff to his having been shot, when he was not. There is also reference to his alleged shooter, Mr Preece, being disciplined, but he was not. There is also reference to senior police covering up this alleged shooting, but there is no evidence that any of them did, because there is no evidence that any junior person reported the discharge of the plaintiff's firearm to any senior person. The plaintiff admitted in crossexamination that he still did not carry the burn mark on his skin which he could show to the Australian public. He told me that the burn mark went away after six years. With the utmost respect, anyone with a scintilla of knowledge of physiology would know that a superficial burn mark or scorch mark would go away within a matter of a year or less. 119The plaintiff admitted in crossexamination, as far as the fourth paragraph is concerned, that he did not arrest either of the alleged robbers of the Villawood Bus Depot, and it is clear from the contemporaneous documents that he was only in pursuit of one offender. The plaintiff admitted that at no time did that offender level a firearm at him, the plaintiff merely thought that might occur, but again there is no contemporaneous record of the plaintiff even having such a perception at the time. The plaintiff's referring to himself as a hero is clearly self-serving. 120In the fifth paragraph there is an allegation of having been almost run over on the M4 motorway, but as I pointed out earlier, there is no history of such an occurrence given to any medical practitioner. 121As to the seventh paragraph, I have already pointed out to the fact that the plaintiff was living with and sexually involved with a lady who may well have been his fiancé. At the time marriage counselling was suggested to him, and for the plaintiff to say that he was "not even aligned with any female" is nothing but a blatant lie. 122The tenth paragraph, again, ignores the fact that in exhibit 1, the plaintiff thanked Sergeant Adrian Blackburn and Senior Sergeant Paul Heckle for their genuine concern shown to him and that the plaintiff was sent to Police Welfare and was seen by a police psychologist, Michelle Fisher, and that before the plaintiff saw Ms Fisher, he had also seen two other psychologists from the Employees Assistance Branch, Dr Jan Westerink, and Mr David Taylor. 123The defendant on 30 October 2013 sought to put into evidence another missive sent by the plaintiff to the defendant's lawyers bearing date 11 October 2013. I rejected the tender pursuant to s 135 of the Evidence Act 1995 on the basis that the tender of it would be unfairly prejudicial to the plaintiff because its probative value was essentially outweighed by the danger that it would cause unfair prejudice to the plaintiff. I described the missive as being able to be described, most charitably, as an ill-informed and poorly argued attempt to reach a settlement with the defendant. 124One exchange in crossexamination essentially acknowledges that the plaintiff was grossly exaggerating. On 30 October 2013 the following question and answer are recorded on p 30 of the transcript: "Q. 'I still carry the burn on my skin when I almost died which will be shown to the Australian public if you force me to escalate.' A. Sir, this is probably one of 12 letters that were ignored and never replied to and I guess during the course of these letters I became more enraged and more angry and.. Q. And lied more? A. And maybe a little bit less reliable out of just being plain ignored, sir." The plaintiff himself admitted that these were "letters of venom and outrage". 125This behaviour again has to be contrasted with the plaintiff's behaviour in the year 2000 when he applied to rejoin the NSW Police. Something occurred which has caused the plaintiff to ruminate as to what had happened to him, develop a sense of outrage, a sense of entitlement, and it appears to me that, as he has mulled things over in his mind with his constant ruminations, he has built up, reconstructed, what happened to him in the past and such reconstruction is inherently unreliable. 126Earlier at [91] I quoted the proposition put by the plaintiff in his evidence-in-chief that he did not apply for the HOD pension at the time that he submitted his resignation because he was "not about money". This issue has been visited a number of times in evidence. Towards the end of his evidence-in-chief this evidence was given: "Q. Do you recall when you became aware, if you ever did, of your right to apply for an increase in that pension? A. I was notified by Tom [Mr Edmunds]. He would just tell me that we were applying for an increase. It was never anything I asked for. It seemed to be an automatic thing that he was following some guidance or guidelines and he would let me know what was happening and when it was happening. I never asked for more money. It was never about money for me. It is not what I am about.. HIS HONOUR Q. Why are you here then? It is only about money. PERRIGNON Q. It is about money for you, Mr Porto? A. I guess at the end of the day it's about things, you know, things, you know, being made right. Q. What do you mean by that? A. I'm here to make sure that the truth is told. I want to tell my story and expose certain inequities, maybe deliberate or otherwise. The reason I approached Tom Edmunds was to take action against the police service for the way I have been treated." One will note in the email of 20 August 2012 the plaintiff's complaint about "a minuscule amount of $5,000". That is a reference to the arrears of the plaintiff's pension after the defendant recouped from the plaintiff's pension entitlement the amount that the plaintiff had withdrawn from the Police Superannuation Fund at the time of his resignation. Essentially the plaintiff was, amongst other things, complaining about money. 127This was also a subject that was raised in the email of 11 October 2013 that the plaintiff sent to the defendant's lawyers. This evidence was given about that communication: "Q. You told us before that you had never tried to influence these proceedings and you're not after money, but I want you to read that letter and tell me again if you're not after just that. A. Sir, I don't need to read the letter. I know it very well in my own mind. My intention when I approached Mr Tom Edmunds was to bring the two people to justice who treated me badly, one being a Michelle Fisher and number two is to be Mr Preece. Q. Can I just stop you there? A. Money never came into the conversation, ever. Q. Can I just stop you there? Do you agree with me that this email and the attached letter is addressed to the defendant in these proceedings? A. Yes. Q. And in fact the whole purpose of that attached letter is to obtain the settlement that you wanted of your application in these proceedings, is it not? A. I did. Yeah, I believed that was a very reasonable figure that where I would deem that you'd been suitably punished and walk away from the matter. Q. So leaving aside what ever you told your solicitors, or what ever your reasons were for going to solicitors? A. Yeah. Q. You're talking about this letter attached to that email? A. Yes. Q. And you were trying to get the result from the defendant? A. Yes. Q. And it was all about money, wasn't it? A. Sir, I've got no other option to seek justice." 128I cannot leave this passage of evidence without observing that the plaintiff appears to have expressed over many, many years a grievance against Ms Michelle Fisher. However no such grievance was expressed against Mr Preece to any extent until Mr Preece gave the evidence that he did, which I have quoted at [48] - [49]. 129I have come to the view that I cannot accept the plaintiff as an accurate, reliable or, for that matter, honest witness. I found his evidence to be grossly exaggerated and at times wilfully exaggerated, and I have little confidence in much of what he has told me. Everything points to a massive reconstruction of events and a depiction of those events with much greater emphasis on the threat to the plaintiff than the plaintiff actually would have experienced at the time.

[17]

(b) The risk on 8 December 1987 134I turn now to the issue of the event of probably 8 December 1987, the event at the Redfern Police Barracks. The provision in question, s 10(1A)(c) requires me to consider whether the plaintiff, "was required to be exposed to risks." It is to be noted that the paragraph does not require me to consider whether the plaintiff "was exposed to risks"; the plaintiff must be required to be exposed to risks. Mr Ower for the defendant submitted that the plaintiff, in the event in the locker room, was not required to be exposed to a risk. The only case law which I can find that is relevant to this issue is my decision in Grech v Commissioner of Police (2004) 1 DDCR 242. There I was considering an application under s 216A of the Police Act 1990. Section 216(3) was in the following terms: "The Commissioner must not make a payment under this section unless the police officer concerned was, in the opinion of the Commissioner, hurt on duty because the police officer was required to be exposed to risks to which the members of the general workforce would normally not be required to be exposed in the course of their employment." One will note that this verbiage appears to have been based on the verbiage of s 10(1A)(c) of the present Act. I pointed that out in [7] of my reasons. The facts can be gleaned from the headnote. That is this: "The plaintiff was a former member of the NSW police who was injured in Byron Bay. He was a member of the Special Technical Investigation Branch of the police trained to enter premises covertly and install listening devices. He was in Byron Bay with other members of the Branch to assist detectives in a surveillance operation. The Branch members were housed in the ground floor of a block of apartments while the detectives were housed on the top level of that block. On the last day of the operations, the senior member of the Branch tried to throw some money placed in an otherwise empty cigarette packet to the detectives on the top level to pay the rent of the rooms occupied by the Branch members. The attempt failed and the packet lodged on the balcony in the middle level. The plaintiff tried in vain to gain the attention of the balcony's occupants, and then volunteered to try to recover it by climbing onto the balcony. The plaintiff slipped and fell and was injured. He was 'hurt on duty' within s 216(6) of the Police Act 1990. However, to receive the special benefit under that section, the commissioner must be of the opinion that the police officer was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment." In that case the former police officer was unsuccessful. I said this: "21 Again, I must restate the question: the question is whether the plaintiff's injury occurred because he was: 'required to be exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment.' The Court is very familiar with the dictum of Dixon J, as he then was, in Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 in which his Honour said that for an injury to arise out of the employment, a worker must be doing something which he is 'required, expected or authorised to do'. 23 Section 216(3) does not offer the alternatives of 'required, expected or authorised'. It merely states that the injury must be caused by the police officer's being 'required' to be exposed to special risks in the course of his or her employment. 24 Mr Keller for the plaintiff has very helpfully and vigorously pursued some submissions on his client's behalf. One of his first submissions was that the plaintiff acquired his expertise in scaling walls, fences and the like because of his experience in the Special Technical Investigation Branch, and that in doing what the plaintiff did when he was injured, he was merely using his acquired skills, and that therefore there was a nexus between the plaintiff's injury and his special skills acquired because of his status as a policeman in the Special Technical Investigation Branch and the special skills to which he was exposed in that role. However, the mere use of special skills acquired in the course of police service is not, in my view, sufficient to raise the requirement that the policeman's use of such skills would expose him to special risks. For example, the plaintiff, instead of being at Byron Bay in the execution of his duty, may have gone there on holiday with his family. If, for example, he had rented an apartment on the third floor of this block of units and a towel had fallen from the railing of the apartment on the third floor onto the balcony of the apartment of the second floor, he may have done in those circumstances what he attempted to do on 25 September 1997. His using his specialist skills would not mean that he was hurt on duty. The use of special skills does not, in my view, change the status of an injury from one which is not hurt on duty to one which is hurt on duty, and furthermore cannot make one which might be hurt on duty to one in which he was required to be exposed to risks when there might be no such requirement. 25 Mr Keller also submitted that members of the Branch of which the plaintiff was a member might unthinkingly use their special skills in carrying out other tasks, and that such use of special skills would be the common expectation not only of the officers in question, but also of their employer, the Commissioner of Police. However, in my view, an expectation is not a requirement. 26 When one consults the Shorter Oxford English Dictionary, third edition, revised to 1978, one will note that 'require' means, 'to ask for something or some person authoritatively or imperatively or as of right'. It also means, 'to demand, to insist upon'. Transitively, it can be used to mean, 'to demand as necessary or essential or in order to comply with some regulation'. Intransitively, it can mean, 'to be requisite or necessary'. Requirement carries the overtone of compulsion. If Mr Grech had been ordered or even directed by his superior, Senior Sergeant Parker, to do what he did, one could postulate that there was a requirement that he do what he did to carry out a duty in the course of his employment. However, here, on the plaintiff's own evidence, there was no such requirement, he merely volunteered to do what he did." 135In the following paragraphs of my reasons I pointed out that the provision, namely s 216(3) of the Police Act 1990 must be construed in the same way as s 10(1A)(c) of the current Act. I then refer to earlier decisions under this Act, and in particular to the decision of Geraghty J in Thoms v SAS Trustee Corporation and Bennie v SAS Trustee Corporation. At [36] I said this: 36 "Relying on the concepts of immediacy and urgency that are referred to by his Honour Judge Geraghty in Thoms's case, Mr Keller made much of the fact that the current plaintiff and his colleagues were outside their accommodation, on the lawn, expecting an immediate call to duty, that therefore time could not be wasted, the fact the detectives were also leaving their accommodation at the same time, thus making it impossible for them to wait around until the occupant of the apartment at the middle level to where the cigarette packet had fallen might return and allow them ordinary access to the balcony. 37 However, there was sufficient time for the plaintiff himself to climb the stairs to the middle level of the threestorey block, knock at the door and wait in vain, and then return to the ground level and seek to climb the cement pillar. If there were urgency, one could see that the quickest way of getting the money to the third level of the building safely would have been for the plaintiff to take the two flights of steps (that is from the ground to the middle level) and then from the middle level to the top level with the money in his hand, hand it over to the detectives, and then to return to the ground level. All that would have taken much less time than the operation that eventually occurred." At 38 I pointed out that the injury which befell the plaintiff in that case was not caused by any abnormal risk, that is, it was caused by a risk to which members of the general workforce would normally be exposed. 136There was much argument as to the meaning of the words "required to be exposed". I maintain the view that I expressed in Grech's case. Mr Perrignon for the plaintiff did not suggest that Grech had been incorrectly decided. Rather, he used Grech to point to the work to be done by the words "was required to be exposed" in the paragraph now in question, that it ruled out a policeman voluntarily assuming a risk. The plaintiff's argument is this: the plaintiff was required to change his clothing. For that purpose he went to the locker room and used his locker. When in the locker room he was exposed to interaction with another member of the police force who in some fashion accidentally discharged the plaintiff's firearm. Everything the plaintiff did, he was required to do by his duty: to enter the locker room, to open the door, to remove clothing and hang it up, to don other clothing, to wear his appointment belt, to unload his firearm, and whilst he was doing that another member of the Police Force for some purpose of his own grabbed the plaintiff's service pistol and caused it to accidentally discharge close to the plaintiff's abdomen. The plaintiff was doing what he did in the course of his employment, and therefore he was required to be exposed to the risk of a misbehaving coworker. 137There is force to that submission. For example, a policeman might be assigned the job of guarding the entrance to a bank when there is some fear that a bank may be held up. Whilst standing on duty at the front of the bank, the policeman sees occurring nearby an assault upon a member of the public say, for example, by a young man on an old lady, perhaps assault with intent to rob.The policemen leaves his assigned place of duty, rushes to the assistance of the lady being assaulted, and in the course of that activity sustains injury, for example, by being punched or stabbed by the offender. The plaintiff was not ordered to do what he did, but his clear duty at common law was to prevent the assault upon the old lady. His duty called him to undergo or to experience the risk which actually led to his being injured whilst assisting the old lady. One could in those circumstances see that such a policeman was exposed to a risk and that his duty required him to be exposed to the risk, even though his assigned duty was to guard the bank. I therefore accede to the submission of Mr Perrignon that the plaintiff was in fact required to be exposed to the risk of the accidental discharge of a firearm in the locker room. 138It may have been otherwise, of course, if the plaintiff had engaged in some act of mutual skylarking or if, for example, the plaintiff decided to play a game of Russian roulette with another member of his class. Such, of course, are not the facts of the present case. There is a risk in any practical joke that it could go wrong. The practical joke appears to have gone wrong because the plaintiff had not unloaded his revolver and may have indicated something to the other probationary constable which led that other probationary constable to believe that he had in fact unloaded his pistol. The risk of course is unusual and may have been contributed to by the plaintiff himself. 139I would again categorise the risk as moderate. The extent to which this risk may have had in the aetiology that the plaintiff's PTSD is in fact another question entirely. The question that then arises is the risk in the locker room at the Redfern Police Barracks, a risk to which the members of the general workforce would normally not be required to be exposed. Young men in locker rooms often play the goat. Even on television these days one sees advertisements in which young men are flicking towels at each other, and one often hears of practical jokes being played in locker rooms such as filling boots with shaving cream or something of that nature. Young men tend to "muck up" in locker rooms. However members of the general workforce do not carry pistols into locker rooms. It is the pistol which creates the abnormal risk.

[19]

THE AMOUNT COMMENSURATE WITH THE RISKS 141Having made those findings I am required to do what the STC did and to reach a conclusion to either confirm the decision of the defendant or to set it aside and replace it by a greater determination. I am required to find whether the plaintiff was hurt on duty because he was required to be exposed to risks to which members of the general workforce would normally not be required to exposed to in the course of their employment, and award an additional amount that is commensurate with the risks to which the member was so required to be exposed. The amount rewarded must be commensurate with the risks. 142There was considerable debate in the course of submissions about the methodology adopted by me in Conway v SAS Trustee Corporation [2012] NSWDC249; (2012) 11DDCR232 applying what fell from my colleague, Truss DCJ in Byrne v SAS Trustee Corporation (unreported, No RJ 416 of 2007, 16 May 2008). I said this in Conway: 36 "I now turn to the argument put forward by Mr Ower about a 'part of a part' of the 15%. Mr Ower is quite correct in his submissions that it flows as both a matter of logic and from the decision of Truss DCJ in Byrne, that where only part of the certified infirmity or only a large number of certified infirmities carries a special risk that there must be some apportionment. In [10] her Honour said this: "In my view, the plaintiff is only entitled to rely upon risks which were causative of the infirmities certified in respect of which the pension was granted, and not upon risks which arise out of his police service, generally. Paragraph makes reference to the member being hurt on duty because the member was required to be exposed to risks." 37 Commencing at [20], her Honour said this (at [20]-[22]): "As stated earlier, for the purposes of the subsection, the risks relied upon are causally relevant only to certify infirmity elements of chronic Post Traumatic Stress Disorder. The defendant stated that subs (1A)(c) does not envisage a member being certified hurt on duty, as a consequence of more than one infirmity, and submitted that the event of certification of multiple infirmities where the infirmity relied upon is not, of itself, totally incapacitating, the member has no entitlement. The plaintiff does not contend that he is totally incapacitated as a consequence of the elements of PTSD, but says this does not preclude entitlement. I do not consider that the wording of s 10(1A)(c) supports the defendant's submission. In my view the relevant events required to establish prima facie entitlement are total incapacity for work outside the police service, and the member being hurt on duty. Once established, the Court then needs to determine: ● whether there was exposure to any causally relevant risks; ● if so, the additional amount which is commensurate with those risks." 38 Mr Ower was gracious enough not to repeat the submission that he obviously made to her Honour that is the subject of [21] of her Honour's reasons, and obviously now accepts that what her Honour said was correct and indeed what has been the practice for the nearly 20 years that I have been on the bench dealing with claims under this Act. 39 Here there are a large number of what I refer to as 'orthopaedic conditions', as well as the psychological condition and the hearing-loss and the resulting tinnitus. The defendant submits that I should attribute two-thirds of the incapacity to the orthopaedic injuries, because they, in effect, are more incapacitating than the plaintiff's psychological condition." What occurred in both Byrne and Conway was caused by there being multiple conditions suffered by a plaintiff, only some of which carried a risk which could be categorised as an abnormal risk and where part only of the incapacity could be referrable to the condition which was the subject of the abnormal risk. 143This led me to raise in submissions the proposition of what part of the incapacity should be attributed to the knee injury and what part of the incapacity should be attributed to the psychiatric condition; and having so apportioned the incapacity, to apply some proportion to each part of the incapacity, and then to add those proportions together to come up with the overall assessment of the commensurate benefit. This approach was opposed vigorously by Mr Perrignon, but his opposition, based on what he said the Act meant, would not provide the Court with an ability to do what was done in both Byrne and Conway. However, here the only two certified infirmities are each the subject of an abnormal risk. The risks in respect of the PTSD, I have categorised as moderate; the risks in respect of the plaintiff's knee injury, I have considered to be moderate. 144Here it is patently clear that the plaintiff stopped working because of, in essence, his knee condition and perhaps his matrimonial difficulties, and it is clear that the plaintiff became totally incapacitated because of the condition of his knee. In crossexamination on 25 October 2013 the following evidence was given: "Q. But, the reason that you had given up work two or three years beforehand was more to do with your leg than anything else, wasn't it? A. Yes, the leg and the subsequent operation and the recovery from that point." However, it is clear that the knee condition is now only partially incapacitating. In his more recent report Dr Endry-Walder said this: "He would, in my opinion, be fit from the physical point of view of working in an essentially sedentary type of work situation, some clerical or administrative-type of employment in which he has the freedom to get up and move about when his knee gets stiff with prolonged sitting." Immediately preceding that, Dr Endry-Walder said this: "In March 2008 I wrote that, 'Mr Porto remains with functional restrictions in any work situation in which he has to be on his feet for prolonged periods of time, run, squat, negotiate uneven ground or stairs on account of the left knee injury, and nothing much has changed in the meantime except that perhaps he has even more pain at the knee than was reported previously." Of course whether the plaintiff actually had more knee pain depends on his credibility. As Mr Perrignon rightly submitted, there is nothing to suggest that, as far as the knee itself is concerned the plaintiff, could not do work other than clerical or administrative work, such as working as a forklift driver or bench work, assembly work, or work on a process line where he could sit or stand at will. However it is now clear that the plaintiff is accepted by both Dr Klug and Associate Professor Glozier as being totally incapacitated by his psychiatric condition. In the circumstances I believe that I need not apply the principles adopted by Truss J in Byrne or by me in Conway. One finding is sufficient to answer both conditions. 145Having assessed a moderate risk for each condition what amount is commensurate with the risk to which the plaintiff was required to be exposed? The defendant assessed the appropriate ratio as three in ten. The plaintiff asks me to assess it as essentially ten out of ten. Clearly I do not accept that. It must be remembered that these are judicial proceedings and this is a hearing de novo. The plaintiff bears the onus of proof. The plaintiff must establish his case on the balance of probabilities. In my view a ratio of three to ten represents a moderate risk. In my view the plaintiff has failed to discharge the onus which is upon him of persuading me on the balance of probabilities that the risk to which he was exposed entitled him to a sum of greater of 17.25% of his attributed salary of office. My inability to accept the plaintiff's evidence makes it difficult, and makes it very difficult, for me to accept the extent of the abnormal risk in any great detail. In those circumstances the plaintiff's claim for an increase in his superannuation allowance fails. 146Before moving on to the question of backdating, I should point out that in connection with the arguments concerning whether the plaintiff was required to be exposed to risk in connection with the incident in the locker room I have consulted the relevant speeches in both the Legislative Assembly and the Legislative Council for the passage of the Police Regulation (Superannuation and Appeals) Amendment Act 1979 which largely cast the Act into its present form. The speech in the Legislative Assembly was given by Mr Hills, the Minister for Industrial Relations, inter alia. On p 1845 of Hansard for 16 October 1979 one can find the following: "The bill would provide a statutory minimum superannuation allowance of 72.75 per cent of salary. A member of the police force whose disability also causes incapacity for work outside the police force would be paid an amount in addition to the disablement allowance. The additional amount would not exceed 12.25 per cent of the salary of office and be commensurate with the extent of incapacity. In such cases the maximum annual allowance would therefore be 85 per cent of salary. However, in cases of total incapacity associated with exposure to exceptional risk, the additional amount would be no less than 12.25 per cent and no more than 27.25 per cent - the maximum allowance being therefore 100 per cent of salary. The result would be that hurt-on-duty pensions could reflect the degree of incapacity suffered and also any exceptional risk undertaken." The words "also any exceptional risk undertaken" do not assist to any extent in interpreting the words "was required to be exposed to risks". The speech in the Legislative Council was given by Mr D P Landa. At p 2346 of the same volume of Hansard the following is contained in Mr Landa's speech of 30 October 1979: "In cases where the disability also causes incapacity for work outside the police force there will be paid an amount in addition to the disablement allowance. The additional amount will not exceed 12.25 per cent of the salary of office and will be commensurate with the extent of incapacity. The maximum annual allowance will be, therefore, 85 per cent of salary. However, where there is total incapacity associated with exposure to exceptional risk the additional amount will be no less than 12.25 per cent and no more than 27.25 per cent. The maximum allowance is, therefore, 100 per cent of salary. By these means hurt-on-duty pensions could reflect the degree of incapacity suffered, and also any exceptional risk to which a totally incapacitated member of the police force was exposed." Again, that speech gives me no assistance in interpreting the words "was required to be exposed to risks".

[20]

DATE OF COMMENCEMENT OF PENSION 147The remaining issue concerns the date from which the increased pension ought to be paid. The relevant provision is s 10(1D) which is in the following terms: "STC may: (a) make a determination at any time of an additional amount of a superannuation allowance under this section, and (b) vary any such determination at any time, and may direct that the determination of variation take effect from such date as STC considers appropriate." That provision must be contrasted with s 9A(4) which provides this: "An annual superannuation allowance granted under s10 to a former member of the police force who resigned or retired is, subject to this Act, payable as from: (a) the date the former member lodged the application for the allowance that was determined by STC certifying the matters referred to in s10B(2)(b), or (b) such earlier date as STC may determine if STC is satisfied that there are exceptional circumstances that merit STC doing so." In the Act "STC" is the abbreviation for the current defendant. Authorities relevant to the interpretation of s 9A(4) are Swift v SAS Trustee Corporation [2010] NSWCA 182 and SAS Trustee Corporation v Cox [2011] NSWCA 408. Here of course the pension entitlement arose at the time of the plaintiff's resignation, 28 April 1995. On one view of the matter the plaintiff's pension ought to have commenced on 29 April 1995. However, the plaintiff did not seek that the pension commence at that time, but at the time he sought his medical retirement, namely 5 August 2008, or on the date on which it was received by the defendant on 7 October 2008. 148The plaintiff's increased pension was only granted from 14 December 2011, the time that the defendant received the plaintiff's application for his increased pension benefit. That is clear from exhibit B. There are a number of unreported authorities which may be relevant. The first is my decision in Tanks v SAS Trustee Corporation (1 September 2004, RJ894/03), Pinkerton v SAS Trustee Corporation (Truss J, 10 August 2007, RJ319/06), Wheatley v SAS Trustee Corporation (Robison J, 3 August 2011, RJ424/10), Hoffman v SAS Trustee Corporation (Ashford J, 15 May 2013, RJ512/12) and Murphy v SAS Trustee Corporation (Ashford J, 15 May 2013, RJ516/12). 149In Tanks I said commencing at [28]: "28. I am told, without objection, that the plaintiff only made an application under s 10(1A)(c) on 16 June 2003. As I earlier stated, relying on the defendant's notice of grounds of defence, the plaintiff was discharged from the Police Force on 27 February 1997. He was granted a superannuation allowance for total incapacity under paragraph (b) on 27 August 1997. I am told, again without objection, that the defendant's policy is to backdate any increased allowance to the date of the original grant provided that it is made within twelve months. One can accept therefore that the plaintiff has received 85 per cent of the salary of his office since 27 February 1997. However, it was not until more than six years later on 16 June 2003 that the plaintiff made an application under paragraph (c). He clearly made an application under (b) at some time prior to 27 August 1997 and one would infer within six months of being medically discharged. Clearly the plaintiff's delay ought not provide him with a windfall or the defendant with a detriment. Like my retired colleague, his Honour Judge Burke, I agree that there is much in Matthew Chapter 7, verse 7: 'Ask, and it shall given you; seek, and you shall find; knock, and it shall be all opened unto you.' 29. If the plaintiff fails to ask or fails to seek or fails to knock he ought not, in my view, have the benefit of his failure. It appears to me that the appropriate date from which the increased superannuation allowance ought be paid should be from 16 June 2003." Strictly speaking, that dictum is obiter. It is clear from [27] of my reasons that I made that observation to obviate further litigation between the parties in those proceedings. 150In Pinkerton the plaintiff was medically discharged as hurt on duty on 12 August 1993. He was granted the basic pension of 72.75% of the salary of his office at the date of discharge. On 23 September 2005, over twelve years later, he applied for an increase. By letter dated 25 January 2006 the defendant advised that PSAC had approved an increase to 84% of the applicable salary at the date of discharge, payable on and from the date of application, namely 23 September 2005. On 7 March 2006 the plaintiff's solicitors wrote to the defendant applying for the pension to be backdated to the date of medical discharge, namely 12 August 1993. At [10] her Honour said this: "The defendant relies upon a judgment of Neilson DCJ in Tanks v SAS Trustee Corporation...and says that if a plaintiff does not seek certain relief he ought not be entitled to complain if the he does not get it. In Tanks the plaintiff's pension commenced from his date of discharge, 24 February 1997. An increase was approved six months' later and he applied for a further increase on 16 June 2003, in respect of which Judge Neilson allowed the appeal and ordered an increase from the date of application. His Honour referred to the plaintiff's delay, which he said ought not provide him with a windfall or the defendant with a detriment. In this present case the delay was some 12 years. It was submitted on behalf of the plaintiff that Tanks is of limited assistance because the issue arose as an afterthought and was not properly argued. However, having regard to the judgment I am satisfied that the matter was properly considered by his Honour." In that case her Honour dismissed the application. It appears clear to me, as it appeared to Mr Ower who drew the decision of Pinkerton to my attention, that her Honour essentially agreed with the reasoning which I had expressed in Tanks. 151The other three decisions to which I have referred in my view state no matter of principle. Indeed Wheatley may contain arguments which are inconsistent with principles adopted by the Court of Appeal in Swift and in Cox. In Wheatley Robison DCJ said on p 6 this: "I repeat, the defendant is not an insurance company, it has a position of trust and should act accordingly. That is, of course, not to say that everybody who seeks benefits pursuant to the legislation or an increase in benefits or whatever the case may be should automatically be entitled to such benefits simply because of a relationship between the trustee and the potential beneficiary. That, of course, is not the case and could not possibly be so, every case needs to be determined on its own circumstances." In essence his Honour relied upon the facts of that case. The same reasoning process appears to have been adopted by her Honour Judge Ashford in Hoffman and Murphy, which were both delivered on the same day. It is clear from the decisions in Swift and Cox that delay is a relevant consideration. 152Here the plaintiff's entitlement to his pension crystallised on 8 October 2009 when the Commissioner of Police accepted that the infirmity in the plaintiff's left knee was caused by his having been hurt on duty. On 14 December 2009 the present defendant advised the plaintiff of his entitlement to seek an increased pension. However, he did not do so until his application was received by the defendant on 14 December 2011, two years later. There was a delay of two years in seeking an increased pension entitlement. As I have already pointed out, I do not accept the plaintiff's evidence that he did not receive the letter of 14 December 2009. Even if he did not, it is clear that he was relying upon the services of a solicitor and the advice of a solicitor with expertise in proceedings under the present Act. Initially I was drawn to the argument that it was proper for the plaintiff's solicitor to refrain from seeking an increased pension until the question of whether his PTSD was caused by the plaintiff's having been hurt on duty. That in essence was conceded by the Commissioner of Police on 15 November 2010. Nevertheless, there was still a delay of over a year before the plaintiff sought an increased pension benefit. 153Mr Ower for the defendant properly pointed out that it was common for former members of the NSW Police to apply for an increased pension, even if there were still outstanding proceedings such as occurred in the current case. Assuming that the current defendant maintained the policy to which I referred in [28] of Tanks then the plaintiff could have applied for an increased pension by 8 October 2010, and if granted it would have been backdated to 7 August 2008. If an increased pension had been sought within that timeframe, it probably would not have amounted to 85% of the salary of the plaintiff's office, but would most probably have been greater than 72.75% following upon the decision of the Court of Appeal in the Lembcke v SAS Trustee Corporation (2003) 25 NSWCCR 464. 154Assume for the moment that the defendant agreed to increase the plaintiff's pension to 80%, and had the application been made on or before 8 October 2010, it would have been backdated to 7 August 2008. Once the Commissioner of Police had accepted that the plaintiff's PTSD was caused by his having been hurt of duty, as he did on 15 November 2010, the plaintiff could have made a further application for an increased pension within one year of that date, and the defendant could well then have increased the pension to its current level of 90%. In those circumstances, given no undue or unexplained delay and the plaintiff's applications falling within the defendant's admitted policies, it would have been proper to backdate the increase to 90% to the date of application for medical discharge, 5 August 2008, or the date on which it was received by the defendant, two days later. Should there have been no relevant delay I would have so determined. 155However, the plaintiff elected not to seek an increased pension promptly after the decision of the Commissioner of Police of 8 October 2009, and indeed did not seek an increased pension promptly after the decision of the Commissioner of Police, embodied in the consent made by this Court on 15 November 2010, but delayed making any application to the defendant until 14 December 2011. Given this unexplained delay it appears to me that I should follow the principle which I enunciated in Tanks, which has the approbation of my more senior colleague, her Honour Judge Truss. 156Mr Perrignon for the plaintiff made much emphasis in his submissions on the plaintiff's protestations that he knew nothing about his ability to apply for an increased pension and relied wholly on his solicitor. However, a solicitor acts for a litigant and the solicitor is the litigant's agent. Not to attribute the solicitor's failure to advise the plaintiff to apply for an increased pension promptly denies the principle underlying the whole of the law of agency: qui facit per alium, facit per se: who acts through another acts himself. In these circumstances I am unable to make a determination that is other than the determination made by the defendant on 26 July 2012, as set out in exhibit B, the letter of the defendant of 27 July 2012. Accordingly the current application must fail. 157I have no doubt that the plaintiff will be sorely and perhaps vociferously aggrieved by my decision. However, with the utmost respect to him, I would point out that he should consider himself to be the very fortunate beneficiary of a very generous scheme. Were it not for irrefragable facts and were the matter before me as res integra, I would have found that in 1994 the plaintiff had an episode of a Major Depressive Disorder. A Major Depressive Disorder is a biochemical abnormality of the brain, which is not caused by any external stressor. However, an episode of a Major Depressive Disorder can be triggered by an external stressor. The only external stressor which is objectively pointed to by the evidence in 1994 is some difficulty between the plaintiff and his then partner, his present wife. It is clear that by the year 2000, when the plaintiff sought to rejoin the NSW Police, that that episode of a Major Depressive Disorder had gone away. That is that the plaintiff had recovered from that episode of Major Depressive Disorder. However, a Major Depressive Disorder can reappear, its path is cyclical. It appears to me that the plaintiff's Major Depressive Disorder was triggered off again in 2007 or thereabouts. It may not have been triggered off by any external stressor at all. If it were, I would not attribute any such external stressor to the plaintiff's service in the New South Wales Police, which ceased on 28 April 1995. A potent stressor could have been the plaintiff's cannabis habit and the symptoms that he experienced when he sought to withdraw from the use of that substance. Again, stressing the point that I am bound by the irrefragable facts, I point out what the evidence to me suggests. Were I seized of the fact finding matters in the current case I would only accept the plaintiff's knee condition as being caused by his having been hurt on duty, and that only causing a partial incapacity for work. As to the diagnosis of a Major Depressive Disorder, I would point to the summary contained in the report of Associate Professor Glozier of 6 February 2012, which I quoted at [113]. 158For these reasons I confirm the decisions of the defendant made on 26 July 2012, communicated to the plaintiff's solicitors by letter dated 27 July 2012.