Robinson v SAS Trustee Corporation

[2016] NSWDC 408

District Court of NSW|2016-12-07

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Court

District Court of NSW

Decision date

2016-12-07

Source

Original judgment source is linked above.

Judgment (2 paragraphs)

[1]

Judgment

HIS HONOUR: The plaintiff, Mr Gregory Stephen Robinson, is a former senior constable of police. He was attested as a probationary constable of police on 11 December 1987, and thereupon became a contributor to the Police Superannuation Fund, established by the Police Regulation (Superannuation) Act 1908 ("the Act").
On or about 29 September 1998, the plaintiff went on sick report. On 4 March 1999, he voluntarily resigned from the NSW Police Force without returning to work. On or about 25 June 1999, the plaintiff made an application, under s 10B(2) of the Act, to be certified to have been capable of performing the duties of his office at the time of his resignation. On 20 March 2000, the Police Superannuation Advisory Committee ("PSAC") determined that the plaintiff had been incapable of discharging the duties of his office at the time of his resignation on account of the infirmity of "post traumatic stress disorder" ("PTSD"). The plaintiff was notified of that decision by letter dated 29 March 2000. The Commissioner of Police then determined that the suffering by the plaintiff, of the certified infirmity, was caused by the plaintiff's having been hurt while on duty.
By an undated application received by the defendant on 25 May 2000, the plaintiff made an application for an increase in his pension to 100% pursuant to s 10(1A)(c) of the Act. On 26 July 2000, PSAC approved an increase in the plaintiff's pension, not to 100% the salary of his office as sought, but to 77% of the salary of his office as at the day of his discharge. The plaintiff was advised of that decision of the defendant on 28 July 2000, and in the same communication the defendant advised the plaintiff of his right to make an application to the Compensation Court of New South Wales if he felt aggrieved by the decision that had been made by PSAC on 26 July 2000. The plaintiff did not make an application to the Compensation Court.
Over 14 years later, by letter dated 26 September 2014, the plaintiff by his solicitors lodged a further application for the increase of his hurt on duty pension, pursuant to s 10(1A). As he had previously, the plaintiff maintained that he was totally incapacitated for all forms of work outside the NSW Police. The defendant received that application on 1 October 2014. On 30 July 2015, PSAC declined to increase the plaintiff's pension beyond the then rate of 77% of the salary of his office. Aggrieved by that decision, the plaintiff made an application to this Court under s 21 of the Act on 27 January 2016.

There are a number of histories which need to be considered. By 1993, the plaintiff was drinking heavily. At that time, he was at Rankins Springs. In a report of 8 October 1999 a consultant psychiatrist, Dr Les Ding, obtained this history: "Subsequently, Mr Robinson was posted at a sole charge station at Rankins Springs. He was very conscious of the fact that the nearest station was 40 kilometres distant. A particular incident which caused him intense distress was the episode of attempting to resuce two men from a waterway under a bridge. He recalled feeling intensely cold with a fear of locating the two bodies to the extend that he was in conflict between working hard at trying to save them and emotionally not wanting to do so. Mr Robinson recalled feeling cold, exhausted and intensely guilty as he was unable to be of any assistance. He then discovered that the woman who was directing him was the partner of one of the victims and that the couple had five children. His sense of guilt caused him intense discomfort when he was placed in the ambulance next to the victim's partner who was suffering intense emotional distress. Following this episode, he had to drive a long distance to reach home. By March 1993 Mr Robinson was drinking very heavily and his marriage deteriorated severely. His wife sought counselling which they both worked at for six months, resulting in a degree of improvement. He felt his heavy alcohol intake numbed his emotions and assisted him to ease his extreme sense of guilt. He experienced difficulty sleeping with a return of the nightmares centering around the double-episode murder [experienced at Mudgee]." I cite that to show that the onset of demonstrable symptoms of PTSD probably occurred in 1993 and the immediate response of those symptoms was for the plaintiff to seek solice in alcohol but that interferred with his relationship with his wife. The evidence discloses that the plaintiff had a long, and sometimes turbulent, but good relationship with a lady who unfortunately he has now divorced.

The next piece of history which should be considered is one obtained by a psychologist Dr Ron Farmer, who examined the plaintiff on 24 September 1998. Part of Dr Farmer's report says this: "SC Robinson related that he had not been happy for a long time, even though he was by nature a happy person. I gained the impression that he was already feeling weighed down by the emotional toll that his work duties placed on him, even prior to his wife becoming pregnant with their fifth child in March/April 1997, at which point she became depressed. After the birth in December 1997, his wife was diagnosed as having postnatal depression and glandular fever. SC Robinson took three months' long service leave to help his wife. Their relationship struggled to survive during the next few months, during which time they both saw counsellors. In the past few months, SC Robinson has 'fallen apart'. He stated that he began experiencing panic attacks and a growing [sense] of anxiety that seemed to follow him everywhere. He found himself beginning to cry easily at small frustrations, to struggle to carry out ordinary tasks, and to get caught up in indecisiveness and confusion when even simple decisions had to be made. He reported that 'recently' there were two tragic deaths, one involving a truck and the other a suicide, which resulted in a totally flat, non heightened emotional response. His sleeping had deteriorated steadily, and work-related nightmares had become a regular occurrence. In one such nightmare, he was stabbed many times, and his wife died. In another, he pulled his gun to defend himself, and it would not shoot. The nightmares arrest his breathing which adds to his fear upon being propelled into wakefulness, with vivid recall intruding into his daytime activities. He reported that he felt suicidal at times, but knows that he would not act on the impulse. In keeping with the general pattern of a person experiencing 'nervous breakdown' SC Robinson has lost almost all of his confidence and has developed a number of fears or phobias. For example, he does not want to be near anybody who knows him, and feels apprehensive about going to bed alone. His difficulty in dealing with conflict is illustrated by a recent event in which he had to get a violent drunken man out of a hotel. Unable to deal with him, he let him go and felt guilty, ashamed and a failure that he had done so, because of his concern that the man could then go and harm somebody. He was reluctant to take stress leave because of his concern that a stigma would be attached to him by his work colleagues, and that he would be judged to be 'a dud'. I urged him to take time off and am pleased to see that he did."

By the time that Dr Ding saw the plaintiff, he was sleeping reasonably well, not experiencing nightmares and felt reasonably refreshed each morning. His alcohol intake was no longer heavy and his relationship with his wife and children had improved remarkably since the time he went off work. At the time Dr Ding saw the plaintiff, he was able to mix in a crowd and attend functions and was beginning to feel more comfortable in dealing with other people. He told Dr Ding that he is capable of being reasonably outgoing socially. However, there were still elements of hypervigilance left, referable to all aspects of police work. Under the heading Mental State Examination, Dr Ding said this: "Mr Robinson attended the interview comfortably, although when experiencing a build up of emotional tension his face became quite red. He is pleased with his decision to resign from the police service and is now able to experience a degree of optimism regarding his joinery trade. He is also optimistic in terms of the significant improvement achieved in the family relationship. He indicated that he is able clearly to see the relationship between his symptoms and the traumatic aspects of his work. In the earlier stages, he was preoccupied with putting these aspects behind him and starting a new life, but now that he realises the connection, he feels justified making a claim [for HOD benefits]. Although Mr Robinson is annoyed at the lack of support, I did not find him consumed with resentment or cynicism." The last comment that I have quoted clearly refers to the plaintiff's perceived lack of support from his local area commander. Dr Ding diagnosed PTSD. He went on to say this about causation: "Mr Robinson gave a history of significant change in his day to day behaviour which included alcoholism, as well as behaviour that would have contributed to marital difficulties. It would appear that he suppressed his emotions. He was determined to apply himself to his duties but found himself becoming increasingly distressed, anxious, bothered by insomnia due to recurring nightmares and emotionally detached in situations requiring compassion. By 1998, his symptoms were becoming more explicit and the connection between the symptoms and the traumatic events became much clearer to him. This would have been further facilitated by his professional consultation. However, it is gratifying that Mr Robinson has shown initiative in terminating his employment in order to utilise his skills as a joiner to refocus his life. To his disappointment and distress, he discovered that the exposure to police matters through a workmate questioning him regarding him becoming a police officer was sufficient to reintensify his symptoms." The latter comment refers to one aspect of the plaintiff's recent experience which appears to have had but a transitory effect. Dr Ding expressed the view that it was the work related factors which caused the plaintiff's PTSD. In their absence he would not have developed the condition. Dr Ding expressed the view that the plaintiff was permanently incapacitated for returning to police duties. He thought it unlikely that the plaintiff would fully recover from his symptoms, but he thought the plaintiff's condition should improve sufficiently to enable him to perform well in the joinery profession and maintain good family relationships.

"Kitchen alterations
Kitchen renovations
Advertise business
Build client base and maintain working relationship
Work with other contractors, such as plumber and electricians
Keeping records for bookkeepers
Hiring and work with casuals
Main workers with family members
Trained and supervised workers." Contemporaneous histories give some indication of the viability of this business. In a letter to the defendant bearing date 11 April 20011, tendered by the plaintiff in his own case as exhibit K, the plaintiff wrote to the defendant asking for a partial commutation of his hurt on duty pension. In that letter, the plaintiff said this: "In October 2003, I tried starting my own business carrying out minor alterations or repairs to kitchen cabinets. This started out as part time and was also plagued by my unreliability. I have stuck with this business which is developed into a modest, small family business which employs our eldest son Nathan, a part time bookkeeper and my wife who is on an unpaid basis. The past two years have seen a massive decline in the business due to the general decline of the building industry and economy. I had sought financial advice on how to manage the business during this time. This turned out to be extremely bad advice which did not work and actually put us further into debt." After referring to debts that had been incurred, the plaintiff went on to say this: "The positive side of all of this is that we are still trading whilst many similar businesses have been forced to close. Recently there has been a shift in the industry and work is picking up. Apart from the debt, I also need working capital to continue with this business. To walk away now would mean I cannot pay off the debts and therefore face more problems in the future." It is clear that the plaintiff's business in 2011 was affected by the global financial crisis. It is clear that although other similar businesses were forced to close the plaintiff's business stayed viable, and as at 11 April 2011 business was increasing. The tone of the plaintiff's letter to the defendant of 11 April 2011 is positive. The plaintiff provided certain financial advice to the defendant which has not been put before me. On 8 June 2011 the defendant paid a net commutation sum to the plaintiff of $163,790.19. From the initial amount of the commutation, tax amounting to just over $9,000 had been deducted. The defendant had approved a commutation of $550 per fortnight from the plaintiff's police pension pursuant to s 10C of the Act.

The plaintiff clearly made an application for a further commutation in April 2012. Part of exhibit 6 is the defendant's letter to the plaintiff of 19 April 2012, advising him of what further lump sum could be provided by way of commutation. The defendant advised that there was available to him an amount of $235,338.84 after tax. The plaintiff applied to obtain that lump sum. In this letter of 3 May 2012, exhibit 4, the plaintiff said this: "In 2003, we started a family-operated kitchen and cabinet company on the Gold Coast in Queensland. At present, the building industry is still struggling to recover from the global financial crisis. However, there are indications of improvement. "On April 1 2011, I created a renovation company with two other businessmen, joining forces to create more business opportunities. Unfortunately, this did not work out, and I resigned from the company on 28 October 2011. This experience has left me with considerable debt, which I am unable to continue to carry. "The positive side to all of this is that we continue to receive much interest from all facets of the industry, both private and commercial. This gives us much hope that the business will keep improving and growing." After providing financial details, the plaintiff said this: "My concerns are that if I cannot rectify this financial situation, there will no doubt be ramifications in the near future, and we will be at risk of creditors taking action against us. "Apart from clearing all outstanding debts, I wish to use the remainder of the commutable amount (approximately $100,000) to assist in working capital, business growth, marketing and advertising. "I therefore am requesting that the remainder of the commuted [commutable] lump sum amount of $248,349.64 be released to me." The balance of the commutable amount of the plaintiff's pension was paid to him, leaving him with a fortnightly gross pension of $635.49 a week. The import, of course, of all of that is that, as at 3 May 2012, the plaintiff was still positive in his approach to his business and that this business was receiving "much interest" from both private and commercial sources who needed services of the suppliers of kitchens and other carpentry products. However, there was clearly a deterioration in the condition of the plaintiff's business.
I have earlier discussed the medical evidence available to me up to the year 2000. The only medical evidence available before 4 April 2014 is a report from a specialist in sleep apnoea. The letter bears the date 12 March 2008 and is by a sleep specialist, Dr Michael Thompson. It is exhibit 3. Dr Thompson pointed out that he had diagnosed the plaintiff as having significant obstructive sleep apnoea. For that condition, Dr Thompson had prescribed a Continuous Positive Airway Pressure therapy which is, in essence, a machine. Dr Thompson referred to the plaintiff's obstructive sleep apnoea as OSA. The report continues thus: "OSA of this severity is associated with significant symptoms of daytime sleepiness and increased incidences of motor vehicle accidents. In addition, there is an increased incidence of high blood pressure, heart disease and stroke. I would urge you to reconsider your decision not to proceed to CPAP therapy." The plaintiff said, on receiving that advice from Dr Thompson, he consulted with his GP, Dr Fisser, whom I know, from Dr Thompson's report on 12 March 2008, practises at Carrara. He would not accept the diagnosis of sleep apnoea but underwent surgery to remove polyps in his nose, or sinuses, or back of his throat. He also referred to the removal of his adenoids.
On 4 April 2014, the plaintiff commenced to see Associate Professor Leon Petchkovsky. I trust that the learned Associate Professor will forgive me if I merely refer to him as "Doctor", which is the title that I am most used to using. The plaintiff was referred to Dr Petchkovsky by Dr John Leventhorpe of Nerang. No medical evidence has been put before me from Dr Leventhorpe. In a letter of 4 April 2014, Dr Petchkovsky noted he had been asked to treat the plaintiff for "PTSD and associated symptomatology". The doctor went on to say this: "He presents as extremely hyper aroused, with hypertension, an accelerated pulse rate, and a marked startle response, as well as the usual range of long standing PTSD symptoms. I have started him on anti depressants (mirtazapine) and will be engaging him in some neurofeedback programs (Heart Rate Variability and SNR training) via my Psychologist colleague, Dr Jonathan Dwyer (12 20 sessions) for hyper arousal. I will also be doing some EMDR training with him to address the PTSD symptoms. (20 to 40 sessions over the next 12 months). I expect this will give him significant symptom relief and increase his general functionality." It should be clear that antecedent to this time the plaintiff had not been on antidepressants and clearly had not been having any treatment. The next communication that I have from Dr Petchkovsky is a letter to the plaintiff's wife. In it, he referred to the present being a difficult time for both the plaintiff and the addressee of the letter, his wife. He noted that they were undergoing marriage counselling and he suggested that the plaintiff's wife give the plaintiff a regular, gentle, 15 minute back massage each evening.
There are then a number of communications addressed to the plaintiff's solicitor. The first bears date 5 September 2014 and answers a question about incapacity for work. Dr Petchkovsky said this: "Mr Robinson is totally incapacitated for work outside the NSW Police Force, and his PTSD was the result of being exposed to risks which members of the general workforce would normally not be required to be exposed to during the course of their employment. Thus he meets the test requirements: for 100% of the salary at the time of discharge for a superannuation allowance." A further communication to the plaintiff's solicitor is dated 11 September 2014, and is in essence the psychiatric report. On p 2 of that report, Dr Petchkovsky said this: "Greg decided to start his own cabinet making business in October 2003 on the grounds that he would have much more control over his workplace and work activities. Because of continuing, and gradually worsening symptoms, his levels of energy and mental capacity fluctuated so much that his performance was consistently unreliable, causing the business to fail. By the time Greg had come to see me on 4 April 2014, his PTSD now included a Major Depression Component. The symptomatology was so severe that he was tormented by continuing flashbacks and episodes of an extreme anxiety and rage. His insomnia had worsened to the point where he was going several nights in a row without any sleep at all. He was grossly anhedonic, unable to enjoy anything at all. His capacity to concentrate was grossly deficient, and his energy levels were very low. Suicidality features began to emerge." A little further on the doctor said that the plaintiff was chronically handicapped and unable to return to any work at all. In providing a diagnosis, the doctor provided the five axes required by DSM 5. The first axis was "PTSD with severe Depressive feature and/or a comorbid depressive disorder". At the end of the diagnosis, Dr Petchkovsky provided a GARP rating. I do not know what that is, however the doctor went on to say that the plaintiff had a 64% psychiatric disability, but that was over 70% when combined with physical comorbidities. What the plaintiff's physical comorbidities might be has never been explained and is clearly not a part of the reason the plaintiff is in receipt of a hurt on duty pension.
It is clear from that history that prior to 4 April 2014 the plaintiff's business had failed. The plaintiff was seen by Dr Bradley Ng, a psychiatrist for the defendant, on the 19 November 2014 at Currumbin. The relevant part of Dr Ng's history is this: "Mr Robinson then started working by himself between 2003 to April 2013. What originally started off as small cabinet work developed into a renovation company doing kitchens and bathrooms. The last year's turnover was $500,000. At most, he had eight staff in the business. This was, at its height, over three years ago. He stated that he was the boss of the company, doing quotes and liaising with clients, and doing contracts and signing. It was based on the Gold Coast. He then stated 'it was never successful'. He stated that he relied on a lot of other people's skills. He had to hire a manager three and a half years ago. He stated that his family carried him. He recalled not sleeping at the time, continuing to have anxiety and vomiting and distress around time frames. Between 2003 and 2013, Mr Robinson initially stated that he had not sought mental health treatment; he stated that he did not seek any mental health treatment because he felt he did not need to. However, after the assessment, he sent me an e mail stating that he had sought mental health treatment six to eight times over the last ten years for depression, anxiety, vomiting and insomnia. He stated in this e mail he was prescribed anti depressants and sleeping tablets. He only started seeking mental health treatment recently when his business failed. He stated: 'I'd gotten so bad, I couldn't go to work anymore.' He did not believe that post-traumatic stress disorder was having a big effect on him, and then one night he stated, 'Light bulb moment, the PTSD is still having a big effect.' In 2014, he started engaging with a psychiatrist and psychologist, and he has been seeing those clinicians on a weekly basis. He was seeing Dr Leon Petchkovsky, psychiatrist, who was prescribing medications and EMDR. He was seeing a psychologist for neurofeedback and supportive therapy." If the plaintiff did seek mental health treatment in the period between 2003 and 2013, evidence of such treatment has not been put before me, even though the plaintiff said he was under the care of Dr Fisser. Everything points to the plaintiff's business failing between 2013 and 2014 and of the plaintiff's developing far greater symptoms than he had in the period between 2000 and 2013, requiring significant treatment under the care of Dr Petchkovsky.
At the time the plaintiff saw Dr Ng, he was temporarily residing with his brother at Bathurst. His brother is the officer in charge of the Bathurst Police Station and perhaps of the local area command. According to the history given by the plaintiff to Dr Ng, he wanted to have time away from the routines of ordinary life when he was staying with his brother. The plaintiff said that he had a reasonable relationship with his wife, and there had been no discussion about separation. The plaintiff and his wife have five sons. At the time the plaintiff saw Dr Ng, four of those sons were still living at home.
However, it is clear that shortly thereafter, when the plaintiff returned to the Gold Coast, his marriage broke down. The plaintiff said that that occurred on Valentine's Day, 14 February 2015. The plaintiff and his wife are now divorced. It would appear from the medical histories that the plaintiff also had difficulties in his relationships with his sons, but those appear to be now returning to some sort of normalcy. However, none of the plaintiff's sons are living with him. The plaintiff now lives with his parents. The former matrimonial home has been sold. No doubt there has been some form of property settlement under the Family Law Act 1975.
The plaintiff told Dr Ng that until recently he had, for between 12 and 18 months, been consuming 2 litres of white wine per night. That is almost three bottles of white wine or some 21 standard drinks. That is a fairly large amount of alcohol. Dr Ng diagnosed PTSD which was chronic and of moderate severity. He also diagnosed an alcohol abuse disorder which was then in remission. It was in remission because the plaintiff had stopped drinking 2 litres of white wine each evening. After providing that diagnosis, Dr Ng went on to say this: "It is interesting that the diagnosis of an alcohol abuse disorder has not been raised before. Mr Robinson clearly drinks excessively over periods of time, much to the detriment of his mental state and possibly to his family relationships. This has been clearly documented in previous reports. He has cut down at times and then it has increased in times. I do note that he had an increase of alcohol consumptions int he last 12 to 18 months. Consuming 3 [sic] litres of alcohol per day and running your own business would appear on the surface to be incompatible. His alcohol use may have a significant role in Mr Robinson's decision to wind up his business."
Dr Ng thought the plaintiff's history of originally not seeking mental health treatment between 2003 and 2013, and what the plaintiff subsequently told Ng by email, represented a major inconsistency in the plaintiff's history. He went on to say this: "It was only in 2013, when his business started struggling, that Mr Robinson started to have problems again and started drinking again, and hence him [sic] seeing a psychiatrist and psychologist this year. If there were problems that were related to post traumatic stress disorder, then clearly the post traumatic stress disorder fluctuates as well. Being able to operate a small business may or may not be related to his post traumatic stress disorder. Just because one cannot work as a small business owner does not mean one cannot work at all. Taking into account all of the above, it is my opinion that Mr Robinson does have a mental illness, namely [PTSD] and an alcohol abuse disorder. This certainly stops him from working as a police officer. However, with treatment it does not stop him from working in any other occupation or an appropriate occupation such as a joiner and carpenter. He may not be able to run a small business, but he could certainly work for someone else on a part time basis." In answer to a specific question, Dr Ng said that the plaintiff was able to work for 20 hours per week.
On 6 February, 2015, Dr Petchkovsky wrote a short report, but it is unclear from the report itself to whom it was addressed. It says this: "The core issue with Mr Greg Robinson's capacity to work is that a decade of PTSD and depressive and anxietal features have damaged his resilience. While he may be able to perform a lot of work tasks, what he cannot guarantee is any consistency or reliability because of unpredictable outbursts of symptoms and unreliable access to attention [,] attention and executive functions." A failing in that assessment is the fact that the doctor ignores the fact that between, in essence, 2000 and 2013 or 2014, the plaintiff spent a lot of time actually working.
On 18 February 2015, the plaintiff was interviewed by Ms Joycelyn Ho, a psychologist, at the request of the defendant's administrator for the purpose of a "vocational assessment". Ms Ho interviewed the plaintiff, commented on the medical evidence that was available to her, which I assume was the medical evidence available to the defendant, and administered certain tests. She generated two reports, one dated 4 March 2015, and a second dated 12 March 2015. In essence, they are the same, but one is an abbreviation of the other. In the report of 4 March 2015, Ms Ho said this: "Depression, Anxiety, Stress Scale (DASS 21) completed on the day of assessment indicated that Mr Robinson was exhibiting extremely severe symptoms of Depression, Anxiety and Stress. He reported he was unable to sleep the night prior to the assessment and had been suffering from stomach upsets and vomiting with the constant thoughts of the assessment. It was observed that Mr Robinson would lose his train of thoughts at times when was providing [a] history of his condition and his employment history and would need reminders to guide him back. Results of the Occupational Search Inventory (OSI - Form 3) indicated that Mr Robinson has no or little interest in any occupations. Based Recovre's observation on the day of assessment, and the results of the assessments, Mr Robinson would likely be unable to engage effectively with work. With ongoing treatment to address his symptoms, Mr Robinson would likely be capable of undertaking the work of a Joiner, Carpenter, Cabinetmaker and Construction Worker in the future." Whilst I accept that plaintiff, at that time, was suffering severe levels of depression, anxiety and stress, the important thing to note is that he had no or little interest in pursuing any occupation at that time.
On 28 April 2016, Dr Petchkovsky wrote a further report. In essence, he maintained the opinion he had earlier expressed and expressed a view that the plaintiff would remain "in the totally and permanently incapacitated category." However, he did express the view that there could be some improvement in his capacity to enjoy life and socialise more, but did not express any favourable prognosis about the plaintiff's ability to return to the workforce.
The plaintiff was reviewed by Dr Bradley Ng on 28 August 2016 at Currumbin. Dr Ng took a further history, which is consistent with the evidence that I have heard. It is this: "After [my] last ... examination, Mr Robinson returned to Bathurst to stay with family. He was there mid-December 2014. He then came back to the Gold Coast and stayed with his sister for one week before returning to the family home, approximately one week before Christmas. It was at this point in time Mr Robinson stated that his [marriage] "fell apart". He stated, 'My wife could not handle my condition, or the symptoms I'd go through.' He stated that she could not handle his anxiety levels. When I asked him to clarify that, he stated that the lawns had not been mowed, the maintenance was not being done. There was no particular incident that led to the separation. He continued to see his psychiatrist. After separation, Mr Robinson went down to Dubbo to stay with his wife's sister and her husband. He stayed there for six months. He tried to do some renovations for them but was not very successful. He tried to fix the bathroom, the windows. It would take ... two to three weeks for him to work up to do something, but then he would only stick at the task for an hour before giving up. He only saw a general practitioner and there were no psychiatric admissions. He did not see an outpatient psychiatrist or psychologist. There were no problems there and he was asked to leave that household. Mr Robinson decided to move on and went to stay with his wife's brother and his partner in Walgett. He stayed on a farm of 8,000 acres. He did not return to the Gold Coast: 'Change of scenery, I suppose ... nice not to see people'. Again, he stated he tried to do a bit of work on that farm and would work for an hour and then stop. Mr Robinson arrived back in the Gold Coast in October/November 2015; 'not doing too well, just mentally'. Since then he had been living with his parents, who were in their mid-late 70s in Burleigh Waters. He stated that he had a good relationship with his parents. They were retired and there was no animosity or dispute. Mr Robinson stated that there had been no communication with his wife since March 2015. He only talked to three of his children. He did not keep in touch with them when he left. That was regrettable. He stated that he was bankrupt now and could not pay his debts. He had $250,000." The plaintiff went on to tell Dr Ng that he had re-engaged with his psychiatrist and his psychologist, meaning, I infer, Dr Petchkovsky and the psychologist to whom Dr Petchkovsky had sent him, Ms Denisia Hockley. Dr Ng asked the plaintiff how he spent his day. He recorded this history: "Mr Robinson stated that he slept until midday. He then had coffee and not much else. He attended appointments on Monday, Wednesdays, Thursdays and Fridays. When he was in the house, he might read the newspaper or watch television. He would borrow DVDs from the library. He would watch MASH. He did not much in the evenings and went to bed at 11pm. He was able to do some housework, including washing the dishes and packing the dishwasher. He did his laundry once a fortnight. He cooked two or three times a week. He left the groceries to his father. He was able to do errands on the way, to and from his appointments." I find it curious that a man, who has complained about poor sleep and nightmares and the like, should confine himself to bed for 13 hours a day. On the same issue, the plaintiff gave this history of symptoms to Dr Ng: "Mr Robinson reported primary insomnia. It was difficult to get to sleep. He would toss and turn throughout the night. He stated that he had nightmares and night terrors every single day. The nightmares consisted of him [sic] being back in the Police Force. He was in high levels of danger. There were graphic images of people shouting. They occurred about two or three times a night. He believed that this contributed to his fatigue." I find it difficult to understand why a man with that history of problems at night, when he was supposed to be sleeping, would spend 13 hours a day in bed. It is inconsistent. At the same time, the doctor recorded that the plaintiff was taking Stilnox and Valium pro re nata - that is, as the need arose. If the plaintiff was prescribed those drugs, he could take them to ease his sleep.
Dr Ng commenced his opinion with this paragraph: "Mr Robinson is a man in search of a disability. He clearly sees himself as unwell and totally and permanently disabled. Not only does he currently see himself now as totally and permanently disabled, he has now come to the conclusion that he has been totally and permanently disabled since 1999. This assertion is in the face of clear evidence that he had some ability to perform some type of work outside the NSW Police Force. It completely defies logic." I must agree with that assessment. Dr Petchkovsky maintains the same view. He maintains a view that the plaintiff is now permanently and totally incapacitated, despite the fact that between 1999 and 2013 or 2014, the plaintiff was, in the main, in employment. That defies common sense and logic. Furthermore, the plaintiff says that he has improved with the treatment provided to him by Dr Petchkovsky, but then the plaintiff and Dr Petchkovsky says, in essence, that nothing has changed since the treatment was provided. That in itself is illogical.
Further, in his opinion, Dr Ng said this: "Finally, it is quite clear that Mr Robinson's reading of his own situation is inaccurate at times. In the last assessment, he declared his marriage as good, yet within six or so months, he had separated from his wife. It is not clear if he made any attempt to salvage his marriage. There was a large degree of avoidance, and again he did not seek treatment, having already engaged with a psychiatrist and psychologist. Again, this behaviour would be inconsistent with someone trying to actively seek treatment and actively get better." It is extremely unfortunate that the plaintiff's marriage failed. From the beginning of these reasons, I have sought to outline the various histories given by the plaintiff to medical practitioners about his endeavours to preserve his marriage, endeavours which he had undertaken from 1993 up until the time of his resignation from the Police Force, which in fact assisted his marriage. The marriage was viable until 14 February 2015, when the couple separated. This would have been a tragedy for a man who had been married to this lady for a very long time and who was the mother of his five sons. Nevertheless, the plaintiff downplayed in his evidence the effect of this separation and divorce. I have little doubt that the plaintiff's PTSD has affected his marriage for many, many years. However, I cannot accept that the breakdown of the plaintiff's marriage did not make his psychic condition worse.
Returning to the issue of treatment being afforded by Dr Petchkosvky, Dr Ng said this, again using the adverb "finally" but using it for a second time: "Finally, I am concerned about the current psychiatric treatment being delivered. Despite engaging with a specialist, Mr Robinson now sees himself as more disabled and sick than ever before. One sees a doctor to get better, not to reinforce disability. There have been no medication changes in almost two years. The dose of Mirtazapine may have been increased. There has also been the use of transcranial direct current stimulation, which is a research treatment and has no evidence base in routine clinical practice, in Australia or overseas. I am very troubled by the use of this experimental treatment in office practice. Furthermore, it is unclear why this treatment is still continuing if Mr Robinson continues to see himself as totally disabled." Dr Ng justified his statement that there was no evidence to support the use of this treatment in clinical practice with references from the Journal of Psychopharmacology and the Australian and New Zealand Journal of Psychiatry. Both the articles were published in 2015. There is force in what Dr Ng says about the treatment being afford to the plaintiff by Dr Petchkovsky.
The doctor was asked to respond to a number of specific questions. In response to one of them, he said this: "It would appear that the [PTSD] symptoms have not dramatically changed and he continues to have, to some degree, a diagnosis of [PTSD]. There would appear to be an emergence of depressive symptoms which might qualify as a major depressive episode. This would not be a Hurt on Duty injury necessarily. This could be more related to more proximal factors, such as the separation from his wife, the deteriorating relationship with this children and financial stressors." The onset of an episode of a major depressive disorder is exactly the opinion expressed by Dr Petchkovsky. Although Dr Ng identifies three possible factors in the development of major depression, the order in which he provides them is somewhat misleading. The first stressor was the financial stressor. The next stressor was the separation from his wife, and I infer that the third stressor, the deterioration in his relationship with his children, resulted from the separation of the plaintiff and his wife, the second stressor.
The remaining medical opinion before me is one from Dr Catherine Oelrichs, a psychiatrist practising in Brisbane. Dr Oelrichs examined the plaintiff on 17 November 2016. A substantial part of her report was based on a review of the documentation with which she had been provided. The history obtained by Dr Oelrichs is not at all satisfactory. She records that the plaintiff started his own business in 2013, not 2003. She reported that the plaintiff persisted with his business until June 2014 - that is, for a period of some nine months rather than ten years. Like Dr Ng, Dr Oelrichs recorded that the plaintiff had had problems with his relationships with his sons. She specifically quotes the plaintiff as saying that those relations "had been fractured". However, by 17 November last, the plaintiff thought his relationship with his sons was "reasonable". On the subject of alcohol, Dr Oelrichs obtained this history: "Mr Robinson describes a fluctuating history of alcohol usage. He reports, at times, he drinks a bit less. He does report his weekly average lately is one and a half bottle of wine per night and the odd beer. He stated that he has a rare alcohol-free night." Dr Oelrichs' mental state examination is this: "Mr Robinson was a neatly and casually attired man in his early 50s. He was of solid build. His affect displayed a decreased reactivity and range. His mood appeared dysphoric. He expressed no active suicidal ideas or plans, although admitted to intermittent suicidal ideation, but no active plans. His thought possession and form were normal. The content of his thought revealed hopeless themes and anxious concerns surrounding the impact of his condition on his day-to-day functioning. There were no perceptual abnormalities. Cognitively, he appeared of average intelligence. He had a reasonable attention, concentration and memory throughout the interview, fitting with his condition. His psychological insight into his presentation was reasonable. His judgment for day-to-day events appeared intact." Leaving aside the plaintiff's "hopeless themes and anxious concerns surrounding the impact of his condition on his day-to-day functioning", one would find it hard to see, given the rest of the doctor's mental health state examination, why the plaintiff could not perform some work in his trade as a carpenter. Dr Oelrichs' opinion was: "Mr Robinson is a 50-year-old man, a former police officer. He presents with a clear history of chronic [PTSD], secondary to the result of his employment with the NSW Police Force. This diagnosis is likely to have been present at least since 1999, as has been confirmed by reviewed reports. He presents with comorbid secondary depressive symptomatology related to the prominent post-traumatic stress disorder and also an alcohol use disorder." Dr Oelrichs expressed a view that the plaintiff's condition restricted him from taking any paid employment outside the NSW Police. In essence, she accepted the plaintiff was totally incapacitated for work outside the Police Force.
She was asked to comment on the opinion of Dr Ng. She said this: "Dr Ng reported that his condition has not dramatically changed. I note that I would agree with this. I note that Dr Ng reports major depression as a result of more proximal factors such as strained family relationship. I do note that I would agree with this assessment of depression and am of the opinion, however, that the nature of his depressive symptomatology are [sic] secondary to the [PTSD] and also the secondary alcohol usage, and the total impairment incapacitation is related secondarily to the nature of his condition, due to the close link in his symptomatology."
The opinions of each of Dr Petchkovsky, Dr Ng and Dr Oelrichs are that the plaintiff suffers from something more than PTSD, the certified infirmity. He is probably suffering from an episode of a major depressive disorder and/or suffering from an alcohol use disorder. Dr Ng points out that these are not necessarily related to the PTSD. Dr Oelrichs is of a different opinion. Suffice it to say, however, it is not open to me to decide what is the cause of the plaintiff's medical disability. That is a question for PSAC. The plaintiff has not sought to have either an episode of major depression or an alcohol use disorder certified by PSAC as being causally related to the PTSD that has been certified by PSAC. I am bound by the certificate of PSAC. So is the plaintiff. So, for that matter, is the defendant.
Furthermore, it appears likely to me that the subsequent psychiatric disorder, whether it is an episode of major depression or an alcohol use disorder or both, is causally related to the plaintiff's financial difficulties and the breakdown of his marriage, which itself might be related to the financial difficulties. If the plaintiff now be totally incapacitated for work, and I use the subjunctive mood advisedly, in my view it stems from a supervening psychiatric condition which is not a pensionable condition. In that regard, one must consider my decision in Miles v SASTC [2016] NSWDC 56.
Looking at the matter purely in human terms, my assessment is that the plaintiff has lost his way. No doubt the failure of his business with the debt that resulted was a massive blow to him. The failure of his marriage would also have been a massive blow to him. These have caused him a negative mindset, a negative mindset that was described by Dr Oelrichs as "hopeless themes and anxious concerns surrounding the impact of his condition on his day-to-day function", or as Dr Ng described it, as the plaintiff being "a man in search of a disability." The plaintiff believed himself, in 2000, to be totally incapacitated, and was supported in that regard, for example, by Mr Hohnke, the psychologist seeing him at that time, and perhaps also by Dr Taulke-Johnson. However, shortly after the decision of PSAC, the plaintiff was able to find work, and in essence, work from 2000 until 2013 or 2014.
The best guide, in my view, to the plaintiff's current position is the assessment by Dr Ng. He accepted that the plaintiff had a capacity to work when he saw the plaintiff on 19 November 2014, to carry out work on a part-time basis for 20 hours per week. I infer that he thought the plaintiff could work part-time in his old trade, which he had done for some periods prior to setting up his own business. Dr Ng also expressed a view that the plaintiff probably could not run his own business because of the effect of PTSD on him, as had been shown by the failure of the business in 2013/2014. I accept that to be the case. That is evidenced to some extent by the fact that the plaintiff found it necessary to engage a manager for a period of time to try to run the business, because it may have been beyond him.
The defendant submits, consistently with my decision in Miles v SASTC, that it is incumbent upon the plaintiff to show, since the assessment made of his ability by the defendant in the year 2000, a material change of circumstance, or to provide fresh evidence. In [12] of my reasons in Miles, I referred only to the need to prove a material change of circumstance, but that was in the context of where the initial assessment had been made by the Court rather than by the SASTC. There the Court gives reasons, but the SASTC does not. Here, it is clear that the assessment made by PSAC was made on an ipse dixit by a clerk, and there is no reasoning provided at all.
There is, in any event, in the current matter, a material change of circumstance. One must hazard the observation that it was thought that the plaintiff might be able to run his own business. The defendant went along with that idea, because it enabled a commutation of the various entitlements the plaintiff had in order to prop up the business, which had been under strain because of the global financial crisis. However, it is now accepted by Dr Ng, the defendant's own doctor, that in effect, the plaintiff was not really fit to run his own business. That, in my view, is a material change of circumstance, or if one wants to look at it another way, some fresh evidence as to the nature of the plaintiff's disability.
The inquiry is, in essence, a financial one. That survived the decision of the Court of Appeal in Lembcke v SASTC (2003) 25 NSWCCR 464. The first question is, what would the plaintiff have done uninjured outside the Police Force? What could the plaintiff have earned on the open labour market, given the skills that he had prior to joining the police force, and the skills that he acquired in the police force? In my view, the closest job matched to what the plaintiff could have done uninjured was that of a security adviser or consultant, as set out on page 17 of Ms Ho's report of 12 March 2015. The tasks that a security adviser/consultant is called upon to perform are skills which a senior constable of police, who was in charge of a small police station, ought be able to undertake, especially given his background as a qualified carpenter. In other words, I accept that in 2015, the plaintiff could have earned, as a security adviser/consultation, $1,571 p.w. gross. The earlier report of Ms Ho, that of 4 March 2015, tells me that as a joiner or carpenter, the plaintiff could have been earning in 2015, $1052 p.w., or as a cabinet-maker, $960 p.w. I assume that those are also gross figures. I average those out at $1,000 p.w. Assuming the plaintiff could work for 20 hours p.w. as a carpenter, he could earn $500 p.w. In essence, the plaintiff's earning capacity has been reduced by two-thirds, or 67%.
A reduction in the plaintiff's earning capacity of two-thirds entitles him to a pension benefit of 81% the salary of his office. I take that figure from the conversion table made by Mr Ower for the defendant and commonly used in this List. It is agreed that should the plaintiff be entitled to a pension increase, which he clearly is, that it should commence on 1 October 2014 when the defendant received the plaintiff's application of 26 September 2014. The parties thankfully have agreed not to have a dispute about four days.
Finally I note that the plaintiff submitted that the need to prove a material change of circumstance or provide fresh evidence, which I discussed in between [4] and [12] of my reasons for judgment in Miles v SASTC was wrong, but I maintain, for the sake of consistency, and in accordance with the decisions of my colleagues, that that decision is correct.
For those reasons, I set aside the decision of the defendant made on 30 July 2015, and I determine that the plaintiff's pension be increased to 81% of the salary of his office, commencing on 1 October 2014. I order the defendant to pay the plaintiff's costs.