Q. Is it something that you imagine that you would have remembered, had it occurred?
A. I probably would have remembered because if that was the case she would have been offered the option to leave the unit if she wanted to or she would have been referred to the psychologist to consult him."
230 The preceding review of the evidence does not include a reference to every witness who gave evidence in court or provided a statement that was tendered by one or other of the parties. None of those witnesses who were not called, but whose statements were nevertheless relied upon, gave any evidence in significant or relevant contradiction of the evidence of the other witnesses that I have reviewed. Many of these witnesses, however, gave further evidence in support of one proposition or another. Reference to some of the evidence given by these other witnesses is made below in the course of the disposition of the issues that follow.
Discussion
231 Although for reasons outside the control of the parties the evidence about the precise period that the plaintiff worked as an undercover officer following her initial period attached to the undercover unit is not entirely satisfactory, it would appear to have been in the order of something approaching a total of two years. That was ultimately the plaintiff's submission (T 10, 14 April 2008). Between April 1991 and June 2000, when not specifically carrying out undercover duties, the plaintiff was required to carry out additional part-time undercover work. There is no dispute in this case that the plaintiff's assessment is an appropriate estimate, even though precise records of this work were either not kept or are presently unavailable.
232 It was submitted on the plaintiff's behalf that when she started out at Kings Cross as "a twenty-one year old girl" she "knew nothing about drugs and so on and that must have seemed like a great adventure at the time and she turned out, perhaps to her own detriment, to be very good at it, and that in turn led to the situation where eventually she was a prized resource with significant experience and capacity and such that she was called back over and over again". That summary is also not apparently contested. In any event I find as a fact that the plaintiff was indeed an outstanding undercover operative, if not an outstanding police officer generally, driven by a strenuous ambition to perform well in her job and possessed of what I have referred to as conspicuous intelligence and capacity. By her own admission, the plaintiff made no complaint about whatever problems she was having, for to do so was considered to be inimical to the progression and promotion she desired and to which she aspired. In the course of this highly promising career prematurely truncated by work related injury, did the defendant breach the duty it owed the plaintiff in any of the ways that she alleges?
Failure to provide the plaintiff with adequate training to perform her duties
233 The plaintiff's submission became principally a submission that she had received little formal training, which may or may not have been adequate, rather than that she received no training at all. Furthermore, the allegation is necessarily limited to the time when the plaintiff initially joined and worked for the undercover unit. The evidence clearly supports the fact that the plaintiff attended the undercover course at a later stage.
234 The burden of the submission is that the plaintiff received "on-the-job" training but that, almost by definition, that system resulted in the plaintiff being exposed to undercover work before training occurred. Other witnesses, such as Timothy Seirlis, Martin Brown and Robert Ridley, spoke of receiving no pre-operational undercover training and of being trained, in the first instance at least, by fellow officers or by the simple expedient of an exposure to the very work they were required to perform in that capacity. There was no formal course of the type later developed and conducted by Mr Drury when the plaintiff commenced this work.
235 A formulation of part of her case, as an obligation to train in a way that was adequate for the plaintiff to perform her duties, rather indicates that she was unable to perform them at some relevant time. This would suggest the availability of examples of the plaintiff having incorrectly performed her undercover work or having performed it contrary to proper procedures about which she should have been previously instructed but was not. No such examples are in evidence. Indeed, the evidence suggests that the training that was received, although limited to the language and mythology of the drug trade and its participants, was more than adequate for her purposes. There is an apparent, although not necessary, tension between the success that the plaintiff demonstrated as an undercover operative and the consequent high demand for her services on the one hand, and a complaint that her training was so deficient that it did not adequately arm her with the skills or knowledge to perform such work on the other hand. The sophistication in training methods that later emerged cannot be used as the benchmark for training when the plaintiff joined the undercover unit unless the plaintiff had sought to make a case that the defendant had wrongfully failed to implement its course at an earlier time. No such case is maintained. The training that the plaintiff received would appear self-evidently to have been adequate for her purposes and those of the defendant. The description of her as "a prized resource with significant experience and capacity" is a proposition that the defendant has not sought to contest.
236 Nor, purely by way of example, is the fact that the plaintiff entered a vehicle (with Ms Crowe) "apparently in breach of protocol" an instance of inadequate training. The relevant proscription was upon doing so in the absence of backup or surveillance. That was intended to be part of the operation. The fact that the plaintiff and Ms Crowe entered the vehicle unobserved and unprotected was a failure of an operational matter rather than anything to do with training.
237 The plaintiff gave no evidence that she was ever confronted at some stage in her career with a situation or circumstance with which she was, for want of adequate training or experience, unable to deal. There was no evidence from any other source that such a thing occurred. I recognise immediately that the absence of examples of problems caused by inadequate training is not necessarily coextensive with an absence of inadequate training in fact. However, if only as a matter of common sense or common experience, the highly specialised nature of the work of the undercover operative described by the plaintiff does not sit comfortably with trouble-free (as opposed to stress-free) performance of such work in the absence of proper training.
238 In my view, there has been no relevant failure by the defendant adequately to train the plaintiff. It is in my view incorrect to conflate training that may have been basic, ad hoc, unstructured and unsophisticated with no training at all. The adequacy of the training that the plaintiff received was reflected in her success. The stressful nature of the work when encountered by inexperienced operatives for the first time should not be confused with a proposition that it would not have been so with training of a different kind. The work was inherently stressful whatever the officer's level of training and experience might have been. It is not insignificant that Mr Drury did not voice an opinion that there was inadequate training of the plaintiff prior to her deployment in undercover work. It is also difficult to accommodate the plaintiff's allegations with Mr Drury's opinion that around 1991 the plaintiff "possessed advanced skills at the highest level as an undercover operative": see par [169] above.
Failure to provide the plaintiff with any or any adequate psychological and/or other counselling and/or psychological or psychiatric treatment
239 There is no evidence to support this allegation even though there is evidence about it. It seems clear that in about 1991 the system introduced by the defendant provided for psychological examination or assessment prior to entry into the undercover unit and also on leaving with six-monthly reviews during the time in between. The evidence is not that this was a therapeutic regime. That system was recognition of the fact that it could not be expected or assumed that undercover officers would come forward with their problems or "self-analyse". Mr Mutton said it worked "as well as a system like that could work". This was presumably a reference to the widespread disinclination of officers to reveal problems and was in fact an attempt to overcome that tendency.
240 The police service had a welfare unit or psychology unit that was available for use by officers in need of its assistance. The plaintiff's contention is not that such facilities were not available to her at all but that she was not ordered or otherwise required to attend for counselling so that whatever might have been troubling her could have been recognised and treated. I have accepted that undercover work carried with it a risk of psychiatric injury that was foreseeable and that the defendant actually knew of that risk. This therefore brings into sharp focus the question of what the defendant should reasonably have done by way of response to the risk.
241 When consideration is given to such things as the magnitude of the risk, the gravity of the harm, the cost and practicability of preventing it, and the end to be achieved, the simple expedient of introducing active reviews of employees engaged in work that was known to have recognised potential risks to health may not seem to be an unreasonable requirement to impose in response to that risk. If the size and scope of the employer's operation is relevant, there could be little to say against the proposition that what was introduced in 1991 could have been introduced earlier. If the interests of other employees are relevant, then the reasonable response favours the plaintiff given the operational dangers associated with undercover work. If one of the issues is that an employer can only be expected to take steps that are likely to do some good, the defendant's adoption and retention of a system of six-monthly reviews arguably gives some actual indication that some benefit has resulted. The fact that officers generally, or the plaintiff in particular, may not have been helped by this system because of some cultural reluctance of police to complain, or because of the plaintiff's idiosyncratic resilience, are matters relevant to the issue of whether any loss may have been caused by the breach (as to which see below) and do not derogate from the importance of factors supporting or tending to support a finding of breach in the first place.
242 However, the defendant's duty has to be formulated by reference to factors that include the incidents of her employment. That employment exposed the plaintiff to a foreseeable risk that she might suffer psychiatric harm. Whilst the defendant may have been required to take reasonable steps to reduce or eliminate that risk, the provision of some form of counselling regime or non-specific psychological or psychiatric treatment going beyond the maintenance of a readily available and accessible welfare unit was not called for and exceeds what ought to be regarded as a reasonable response. The question is one of extent and degree. The question has to be assessed prospectively and not through the prism of hindsight. The plaintiff's allegation is formulated in terms of adequacy, but the plaintiff's development of a psychiatric injury does not automatically produce the answer to whether or not the defendant took adequate steps for the plaintiff's safety in fact. Adequate steps are not to be equated with perfection. The defendant was required to do what was reasonable. In my opinion it did so. The defendant has not breached its duty of care in the circumstances.
Failure to establish and maintain good and recognised procedures for the re-integration of undercover police officers in the position of the plaintiff into mainstream policing duties
243 Consideration of this particular of negligence requires precise identification of what are said to be the "good and recognised procedures" for which the plaintiff contends. The formulation of the question is easier than production of its answer. In general terms there is evidence supporting the fact that the nature of undercover work is not only all embracing but has a tendency to isolate officers who perform it from others of their colleagues in more traditional roles. This is because of the need to protect the identity of undercover officers, and open professional relationships with ordinary police are contraindicated for that reason at least. Secondly, undercover officers are in many respects out of touch with the day-to-day aspects of ordinary policing and some period of readjustment is often required. Thirdly, irrational suspicion has sometimes attached to officers known to have worked undercover and discrimination and isolation often results. Fourthly, undercover duties have a tendency to interrupt what is the usual or expected career milestones and progression, thereby impeding or postponing promotion to higher ranks.
244 The plaintiff gave evidence that she was in effect unceremoniously told to pack her bags and find a new job at the end of her initial term with the undercover unit. Neither party supported the proposition that this was appropriate although the precise nature of what occurred is in dispute. Mr Mutton agreed that the plaintiff should have been given an opportunity to "downscale", which presumably means reduce the undercover workload in an ordered and timely way in preparation for return to normal police duties. He spoke in terms of adjusting "back into the police persona".
245 These strategies are no doubt good common sense and the promotion of them well intentioned. I am wholly doubtful, however, that it is possible or accurate to elevate them as a matter of law to the level of a minimum requirement for employers such as the defendant in order to avoid liability for work related injuries. The defendant conducted a police force. Not unlike all manner of large-scale employers, the range of work falling for assignment to employees from time to time is large and not necessarily easily accommodated under a single or unified category. A desk sergeant in Molong will not ordinarily do the same work as a member of a tactical response team in Sydney. There is no structural impediment to a police officer moving in either direction between such roles as a matter of career development. Many other examples can be imagined. It strikes me as impossible to identify "good and recognised" procedures for removing all manner of disruption that may arise as a result of such movement. As Mr Mutton observed, the simple expedient of making enquiries about other jobs within the police service at the end of an undercover campaign was, in terms of reintegration, "reasonably appropriate from [his] perspective".
246 I am not satisfied that the plaintiff has established what so-called good and recognised procedures for reintegration of undercover officers are or indeed whether they exist as a known combination of factors at all. There seems to me to be no substance in the allegation that the defendant breached its duty to the plaintiff by failing to do some recognisable or identifiable thing when the time came for her to return to "mainstream policing". The plaintiff was an adult of full capacity employed in a large organisation with a multitude of different types of work. It would be an extraordinary thing if such an employer were to be liable to its employee if it failed to eliminate the prospect of emotional and physical disruption when that employee changed tasks. In my opinion, this head of negligence is not made out.
Failure to devise, institute and maintain a proper or adequate system for the flagging of police officers involved in numerous critical incidents as being productive of cumulative stress
247 The plaintiff alleges that the defendant failed to identify her as such a person. Did this amount to a breach of its duty? In my opinion it did not. The defendant has conceded that it recognised and understood that undercover work was capable of producing stress and psychiatric injury. It is also apparent that it failed to recognise or identify that condition in the plaintiff. However, the plaintiff has failed to provide any content to the particular of negligence alleged. What should the defendant have done to discover a condition that the plaintiff would appear not to have identified herself at any time prior to Operation Rhino? What could the defendant have done when the plaintiff made no complaint or report of anything untoward at all? What possible filter could the defendant have devised that would have identified the plaintiff in a way that called up the need for some form of action?
248 The evidence suggests that the defendant did have such a system and it applied to members of the undercover unit after about 1991. It did not apply to members of the police service who performed ad hoc undercover work from time to time from positions outside that unit. The plaintiff was such a person. The real issue is presumably whether or not the defendant breached its duty to the plaintiff by failing to identify her as a person who had been involved in numerous critical incidents that may have combined to produce a psychiatric illness.
249 Professor McFarlane gave some evidence about this as follows:
"Q. So that if the officer chose to not reveal they were suffering any stress reaction at all and, B, did not manifest any change to those about them it would be extraordinarily difficult, wouldn't it, to be able to identify that person as a person who needed help, isn't that right?
A. That's correct, if all that was in place was the system that you have described. I mean, you asked me to comment on matters that you believe I set out in my report. I did actually set out some other matters which we haven't got to but I believe that given the matters that you have so far led me to, it would be difficult if an individual did not complain and did not change in their behaviour to identify them.