See v Commissioner of Police - [2017] NSWDC 6 - NSWDC 2015 case summary — Zoe

NSWNSWDC

See v Commissioner of Police

[2017] NSWDC 6

District Court of NSW|2015-02-26|Before: Whether P, Sackville AJ

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At a glance

Source facts

Court

District Court of NSW

Decision date

2015-02-26

Before

Whether P, Sackville AJ

Source

Original judgment source is linked above.

Judgment (50 paragraphs)

[1]

Brooker v Thomas Borthwick and Sons (Australasia) Ltd [1933] AC 669; [1933] NZLR 1118 Callary v Wyong Shire Council (unreported, 27 August 1998, No 10194 of 1997) Charnock v Department of Corrective Services (1993) 25 NSWCCR 193 Clover, Clayton & Co Ltd v Hughes [1910] AC 242; (1910) 3 BWCC 275 (HL) Commissioner for Superannuation v Scott (1987) 71 ALR 408 COP v Minehan [2003] NSWCA 239; (2003) 1 DDCR 57 Commonwealth v Hornsby (1960) 103 CLR 588 COP v Ombudsman (9 September 1994, unreported, Sackville AJ, NSWSC Administrative Law Division) Da Ros v Qantas Airways Ltd [2010] NSWCA 89 Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 Darling Island Stevedoring & Lighterage Co Ltd v Hussey (1959) 102 CLR 482 Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; (2001) 22 NSWCCR 46 Department of Education & Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206 Dew v Maher (1996) 14 NSWCCR 56 Dive v COP (1997) 15 NSWCCR 336 Dotzauer v Strand Palace Hotel, Ltd (1910) 3 BWCC 387 (CA) Dunn v Department of Education & Training (2000) 19 NSWCCR 475 Favelle Mort Ltd v Murray (1976) 133 CLR 580 Flanagan v Ackers Whitley & Co (1926) 19 BWCC 399 Gannon v COP (2004) 1 DDCR 380 Guardians of the Parish of Brighton v Guardians of Strand Union [1891] 2 QB 157 at 167 Hallet v COP (2004) 1 DDCR 580 Hockey v Yelland (1984) 157 CLR 124 Holovinsky v COP (No 2) (2006) 4 DDCR 122 Hood Construction Pty Ltd v Nicholas and Anor (1987) 3 NSWCCR 45 Humphry Earl Ltd v Speechley (1951) 84 CLR 126 Hunt v Department of Education & Training (NSW) (2003) 24 NSWCCR 642 Innes v COP (1995) 13 NSWCCR 27 Irwin v Direction General of School Education (unreported, 18 June 1998, No 14068 of 1997) Ismay, Imrie & Co v Williamson [1908] AC 437; 1 BWCC 232 Jackson v Work Directions Australia Pty Ltd (1998) 17 NSWCCR 70 James Patrick & Co Pty Ltd v Sharpe [1955] AC 1; [1954] 3 All ER 216 Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 "K" v NSW Ombudsman & Anor [2000] NSWSC 771 Kavanagh v Commonwealth (1960) 103 CLR 547 Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; (2000) 200 CLR 286 Kooragang Cement Pty Ltd v Bates (1999) 35 NSWLR 452; 10 NSWCCR 796 Kushwaha v Queanbeyan City Council [2002] NSWCC 25; (2002) 23 NSWCCR 339 Lander v British United Shoe Manufacturing Co Ltd (1933) BWCC 41 Larson v COP [2004] NSWCA 126; (2004) 3 DDCR 365 Lochgelly Iron & Coal Co Ltd v Walkenshaw [1935] SC(H.L.) 35; (1935) 28 BWCC 231 Manly Pactific International Hotel v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181 Maras v Broken Hill South Ltd [160] WCR 164 Maskery v Lancashire Shipping Co Ltd (1914) 7 BWCC 428 (CA) McCarthy v Department of Corrective Services [2010] NSWWCCPD 27 McFarlane v Hutton Bros (Stevedores) Ltd (1920) 20 BWCC 222 (CA) Mercer v ANZ Banking Group Ltd (2000) 20 NSWCCR 70 MGH Plastic Industries Pty Ltd v Zickar (1996) 187 CLR 310; (1996) 71 ALJR 32; (1996) 13 NSWCCR 680 Murray v COP [2004] NSWCA 365; (2004) 2 DDCR 31 Muscat v Woolworths Ltd [2000] NSWCC 16; (2000) 20 NSWCCA 283 Northern NSW Local Health Network v Heggie [2013] NSWCA 255; (2013) 12 DDCR 95 O'Neill v Lumbey (1987) 11 NSWLR 640; (1987) 3 NSWCCR 139 Partridge Jones & John Paton Ltd v James (No 2) (1932) 25 BWCC 328 Partridge Jones & John Paton Ltd v James [1933] AC 501; [1933] All ER 316; (1933) 26 BWCC 277 Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346 Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 Read v John Lysaght (Aust.) Pty Ltd [1962] WCR 217 Saad v COP (1996) 12 NSWCCR 70 Schinnerl v COP (1995) 11 NSWCCR 278 Slazengers (Australia) Pty Ltd v Burnett [1951] AC 13 (PC) Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504; [1934] WLR 15 Smith v COP (No 2) (2000) 20 NSWCCR 27 Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130 Stewart v NSW Police Service (1998) 17 NSWCCR 202 Stewart v NSW Police Service [1998] NSWCC 57 Stojkovic v Telford Management Pty Ltd (1998) 16 NSWCCR 165 Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd [2008] NSWWCCPD 96 Treloar v Falmouth Docks & Engineering Co Ltd (1932) 25 BWCC 247 (CA) Treloar v Falmouth Docks & Engineering Co Ltd [1933] AC 481; [1933] All ER 298; (1933) 26 BWCC 214 Watson v Qantas Airways Ltd [2009] NSWCA 322; (2009) 75 NSWLR 539 Whittle v Ebbw Vale, Steel, Iron and Coal Co Ltd [1936] 2 All ER 1221; (1936) 29 BWCC 179 Wicks v Dowell & Co. Ltd [1905] 2 KB 225 Wilson v Chatterton [1946] KB 360; [1946] 1 All ER 431; (1946) 39 BWCC 39 Texts Cited: Annotated Civil Liability Act 2002 (NSW), 2nd Edition, 2013 Blakiston's Gould Medical Dictionary, 4th edition (1979) From Strict Liability to Workers Compensation, [2003] 36 N.Y.U.J. Int'l. L & Pol 53 Principles of the Law of Workers Compensation, 1981, Law Book Co Ltd Schmidt's Attorneys' Dictionary of Medicine, (1996) Shorter Oxford English Dictionary, 5th Ed, Vol 2 Taber's Cyclopedic Medical Dictionary, 12th edition, 5th printing (1975) Willis's Workmen's Compensation Acts 1925 to 1943, 37th Edition, July 1945 (Butterworths) Workers Compensation (New South Wales) 1969, 1st Ed (Butterworths) Workers Compensation (New South Wales) 1979, 2nd Ed (Butterworths) Category: Principal judgment Parties: Steven Andrew See (Plaintiff) Commissioner of Police (NSW) (Defendant) Representation: Counsel: Mr P O'Rourke (Plaintiff) Mr M Hutchings (Defendant)

[6]

Overview

The plaintiff was attested as a probationary constable on 25 June 1979. He thereupon became a contributor to PSF. On 29 July 2010 PSAC determined that he was incapable of personally exercising the functions of a police officer by the infirmity of "chronic post-traumatic stress disorder with associated major depression." On 5 August 2010 the defendant, by his delegate, determined that the suffering by the plaintiff of that infirmity was not caused by his having been HOD. The plaintiff was medically discharged form NSWPF on 19 August 2010. A dispute arose between the parties as to the nature of the infirmity certified by PSAC. On 7 August 2014 the STC Disputes Committee certified the infirmity as "chronic major depressive disorder". On 29 August 2014 the defendant, by his delegate, determined that the suffering by the plaintiff of that infirmity was not caused by his having been HOD. These proceedings had been commenced on 17 November 2010, challenging the defendant's determination of 5 August 2010. Following the second determination of the defendant, the proceedings were amended to challenge the defendant's second determination. Accordingly, the issue for my determination is whether the infirmity of "chronic major depressive disorder" was caused by the plaintiff's having been HOD.
The facts alleged by the plaintiff to be the cause of the certified infirmity are pleaded thus in SOC: "a. On 2 March 1997 he was rostered as a supervisor at Lithgow Police Station. He was alone at the station. He was not allowed to leave the prisoner unattended at the station. He had a member of the public in custody with a charge of prescribed concentration of alcohol. Whilst the person was in custody he received two calls regarding the welfare of a female in the Lithgow area. Subsequently the woman was found to have been murdered. b. The murder was the subject of extensive internal and external investigation and the Plaintiff was involved in same. A supervising officer told him that the best way he could assist in the investigation was to hang [himself] and indicated a hanging point and told him where to get rope from the local volunteer rescue squad. Later in that day the patrol [tactician] asked him why he had not yet [hanged] himself as he had access to ropes. The Plaintiff was devastated. He felt powerless to have prevented the murder. The Plaintiff was overwhelmed by the enormity of the tragedy and that if there had been sufficient staff at the station he could have prevented the death. c. The murder on 2 March 1997 attracted a lot of media attention as to whether it was preventable. The Plaintiff felt under threat and defenceless. The questions of staffing at the station had not been within his power to control. d. An internal investigation was conducted by Superintendent Amy. The Plaintiff was reprimanded regarding two telephone attendances from the person who was concerned for the female's welfare, as the Plaintiff had compressed the calls into one telephone call in his account of the incident. The Plaintiff was of the opinion that the internal investigation was fair and the outcome was reasonable. e. An ombudsman enquiry ensued and in approximately October 1997, the Commissioner of Police Mr Ryan and the State Ombudsman, Ms Moss, held a press conference and stated words to the effect "there was no reason why the prisoner held for PCA couldn't have been locked away and processed with at some later time". This was contrary to Police protocol and the findings of the internal investigation. f. Shortly after the press conference the Plaintiff was directed to a meeting where he was met by Assistant Commissioner Dick Adams and interviewed by Deputy Commissioner Lawson. She reiterated the statements of the Ombudsman to him. He said that he was required to remain with the prisoner. The Plaintiff was devastated that he was blamed for the death of the woman and his action following Police practice and procedure on 2 March 1997 was not supported by his superior officer. g. The Plaintiff did not return to full duties. In or about 1998 the Plaintiff transferred to Katoomba Police Station and remained on restricted duties whilst obtaining treatment from 1997 for a psychological injury of chronic major depressive disorder." In general, the Defence does not admit those facts: "(a) The defendant does not admit the particulars alleged in paragraph 6(a) of the Statement of Claim. (b) The defendant admits that the murder which took place on or about 2 March 1997 was the subject of investigations and that the plaintiff was involved but does not admit the balance of paragraph 6(b). (c) The defendant does not admit the particulars alleged in paragraph 6(c) of the Statement of Claim. (d) The defendant does not admit the particulars alleged in paragraph 6(d) of the Statement of Claim. (e) The defendant does not admit the particulars alleged in paragraph 6(e) of the Statement of Claim. (f) The defendant does not admit the particulars alleged in paragraph 6(f) of the Statement of Claim. (g) The defendant admits that the plaintiff transferred to Katoomba Police Station in or about 1998 but does not admit the balance of paragraph 6(g) of the Statement of Claim." Paragraph 5 denies that the plaintiff's "employment" was "a substantial contributing factor" to the infirmity as required by WCA section 9A. "Additionally or in the alternative", the defendant in par 6 of the Defence relies on WCA s 11A alleging that the infirmity was wholly or predominantly caused by reasonable actions taken by or on behalf of the defendant with respect to "transfer, demotion, performance appraisal and discipline." The Defence then provides these particulars: "(a) Following the murder of a girl in Lithgow on or about 2 March 1997 a number of internal and external investigations were conducted involving the plaintiff. (b) On 6 March 1997 the Patrol Commander informed the plaintiff that he would be spoken with about a complaint following the murder of Ms Lewis. (c) The conduct of initial enquires into the complaint by Chief Inspector Leacy from 6 March 1997 to 8 May 1997. (d) All actions of the defendant with respect to the NSW Ombudsman's enquiry into the police investigation following complaints from Mr Tink, MP and Mrs Gay Gee. (e) Managerial counselling of the plaintiff on 16 March 1997. (f) Transfer of the plaintiff, at his request, from Lithgow to Katoomba in March 1997. (g) Managerial counselling by Deputy Commissioner Lawson on 29 August 1997." Of the four matters referred to in s 11A pleaded in par 6, ultimately the defendant only relied on "discipline" within the meaning I ascribed to it in Kushwaha v Queanbeyan City Council [2002] NSWCC 25; (2002) 23 NSWCCR 339, although there may be some overlap with "performance appraisal".
WCA s 9A commenced on 12 January 1997. It is relevant to all the facts alleged by the plaintiff in these proceedings. Consequential amendments were made to s 4 at the same time. The plaintiff bears the onus of proving that the work he did was a substantial contributing factor to the certified infirmity. WCA s 11A commenced on 1 January 1996. It was amended by the legislation that enacted s 9A, but merely to remove a duplication which would otherwise have occurred. It is relevant to the facts alleged by the plaintiff. The onus of proof of establishing any of the matters under s 11A lies on the defendant: Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346 at [48]; Northern NSW Local Health Network v Heggie [2013] NSWCA 255; (2013) 12 DDCR 95 at 59. The relevant parts of the definition of "injury" in WCA s 4 at the relevant times were: "In this Act: Injury: (a) means personal injury arising out of or in the course of employment, (b) includes: (i) a disease which is contracted in the course of employment and to which the employment was a contributing factor, and (ii) the aggravation, acceleration or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, …"
Leaving to one side the issue as to whether the certified infirmity is "injury" simpliciter or a "disease" and replacing the word "employment" with "service", the issues can be expanded thus:

[9]

The plaintiff's background

The plaintiff was born on 5 May 1960. At the beginning of March 1997 he was 36 years old. At the time of his medical discharge he was 50 years old. At the time of giving evidence he was 55 years old. He completed the Higher School Certificate at Galston High School in 1978. On 19 February 1979 he commenced as a trainee with NSWPF. As stated in [3] he was attested as a Probationary Constable on 25 June 1979. Policing has been his only career. He has always worked in general duties, i.e. uniformed police work.
His first posting was to North Sydney Police Station. He was appointed as a Constable of Police on 25 June 1980. On 23 November 1980 he was transferred to Hornsby. According to his evidence he became a part-time member of a police rescue squad at Hornsby, but his service register (exhibit C) suggests that he did so when he was at North Sydney. On 11 October 1981 he was transferred to Pennant Hills. He remained a part-time member of a police rescue squad. On 29 August 1984 he was promoted to Constable First Class. On 1 July 1985 he was transferred to Lithgow. At Lithgow he joined the Lithgow Volunteer Rescue Association. He still occasionally trained with the police rescue squad. He remains a member of the Lithgow Volunteer Rescue Association. He has been its captain and its training officer. The volunteers train every Tuesday night for at least 2 hours. On 29 August 1988 the plaintiff was promoted to the rank of Senior Constable. He had no further permanent promotion.
The plaintiff married his wife, Anne, in 1984. Recently, the plaintiff and his wife "bought his wife's family home in Lithgow, which is on a 12 acre property outside of Lithgow" - report of Dr Peter Klug, 5 December 2011, p1 - part of exhibit FF. The plaintiff's wife is a "Lithgow girl" and one can see that the plaintiff's transfer to Lithgow on 1 July 1985 would have been welcome to both the plaintiff and his wife. Their relationship has been almost universally described as close and supportive although the plaintiff's difficulties, which are the subject of these proceedings, have caused strain at times. The plaintiff and his wife have four children. Based on three different medical histories and the plaintiff's evidence (T6.34) the children and their years of birth are: James born 1989 Andrew born 1990 Caroline born 1992 David born 1994 This information is relevant to bear in mind as, when the plaintiff's difficulties began in March 1997 he had four young children and the effect of his difficulties on his children was one cause of his distress and concern. It is also relevant to the plaintiff's motivation.
The plaintiff had aspirations. As a senior constable, the plaintiff would often be a shift supervisor, i.e., in the absence of a sergeant, the senior officer at the Lithgow Police Station on a shift. He considered himself "a good supervisor" and believed he had a good chance of being promoted to the rank of sergeant. He completed the First Line Commander's Course at the Goulburn Police Academy on 2 October 1990, the Management Development Course for Supervisors on 26 April 1994, the Incident and Emergency Management Course (Levels 1 and 2) on 6 September 1995 and the Safe Custody Course on 12 February 1997. He commenced a Diploma of Applied Policing at Charles Sturt University in 1996. Subjects that the plaintiff studied in that year and his results were: Critical Issues in Policing High Distinction Operational Communication Credit Community Safety and Police Role Credit

[13]

Night shift: Saturday 1 March to Sunday 2 March 1997

The shift supervisor started the night shift at 6pm, ceasing the next morning at 6am. The car crews, according to the plaintiff, commenced work at 7pm and concluded their shift at 7am. At 6pm on Saturday 1 March 2007 the plaintiff commenced a 12-hour shift as the supervisor. Rostered to work with him, commencing at 7pm were: Cons Peter Foran (Lithgow) PC Mark Hilton Hevers (Lithgow) Cons M L Thornberry (Wallerawang) Cons Christopher M Sinclair (Portland) Messrs Foran and Hevers were theoretically the crew of police car identified as Lithgow 1 or Lithgow 10 and Messrs Thornberry and Sinclair were the crew of police car identified as Wallerawang 1. At the commencement of the night shift there was also a civilian administrative officer on duty but he or she finished work at approximately 11pm. Despite the generalised evidence given by the plaintiff concerning the shift structure, it is clear that the crew of Wallerawang 1 were rostered for duty from 6pm to 4am. Furthermore, the statements of Const Foran and PC Hevers also suggest that their shifts commenced at 6pm.
That evening a Debutante Ball was being held in the Crystal Theatre at Portland for a charity. According to a report made by Cons Sinclair (exhibit S2): "the organisers of that Ball had requested a high police profile due to numerous incidents in previous years when that Ball had been held. Sgt Campbell [Portland Sector Supervisor] further requested that we remain in Portland when the Ball was due to end at about 2am until the hall was cleared and the patrons had disappeared from the street." This event in effect kept Wallerawang 1 out of Lithgow for the entire shift.
Messrs See, Foran and Hevers shared their duties. Those duties were as driver, as observer in the car and as officer in the police station. The evidence enables me to establish this arrangement: Period 6pm to 10pm 10pm to 2am 2am to 6am Driver PC Hevers Cons Foran Cons Foran Observer SC See SC See PC Hevers Station Cons Foran PC Hevers SC See The plaintiff's statement (exhibit M) has this slightly wrong. He thought that Cons Foran was the first driver and PC Hevers was the second driver but the statements of the other two are consistent with what I have just found.

[14]

A drink-driving arrest

At 12.46am on Sunday 2 March 1997 the Lithgow car left the Police Station to patrol the Lithgow CBD and, in particular a nightclub known as the "Nitespot". In accordance with Liquor Licensing requirements it closed at 1am. The police officers observed patrons departing from the nightclub. At 2.11am the Lithgow car returned to the police station and SC See and PC Hevers swapped roles. At 2.35 the Lithgow car again left the police station and patrolled areas where there had been "recent incidents". The statement of Cons Foran of 12 March 1997 (exhibit P2) continues the narrative: "I drove the vehicle east along Lett Street to Eskbank Street, where I turned it left into Eskbank Street and travelled towards Mort Street. As I approached Mort Street, I saw a brown coloured Ford utility travelling west along Mort Street at what appeared to be a speed above the sign posted speed limit. I followed this vehicle west along main street and as I passed Lithgow Police Station, the vehicle was not in sight. I turned left into Lithgow Street and observed the vehicle stationary in the left turn lane, waiting to turn left into Main Street. This vehicle was stopped by the control of a red phase traffic control signal. The vehicle moved off when a green left arrow appeared and I followed the vehicle west along Main Street. As we approached the intersection of Main Street and Ferro Street, I observed the vehicle to accelerate harshly and pull to the right side of the roadway, where it overtook a slower moving vehicle which appeared to be an older model [Ford Falcon] station wagon. I followed this vehicle by overtaking the slower vehicle and [engaged] the red and blue flashing lights of the Police vehicle. The utility continued west along Main Street and to the left kerb about 20 to 30 metres east of the intersection of Main Street and Laurence Street. This was outside the hardware store. I got out of the Police vehicle and approached the utility where the driver ([ARG]) got out and walked to the rear of his vehicle. I explained that he was stopped for the purpose of a breath test. The driver submitted to the breath test which returned a positive reading. The time of this offence was 2.56am on [2] March 1997." A large number of exhibits record the time of ARG's offence at 2.56am, e.g. exhibit E (Lithgow Patrol Taskings, p 4), exhibit 6 (NSW Police Radio Log), part of exhibit H (Escorting/Arresting Officer Questionnaire, plus a copy of Cons Foran's notebook), and the records also show the time of his arrest as 2.57am. At 2.59am the Radio Log indicates that a call was made by the Lithgow car to the Police Station advising that an offender had been arrested after a positive road-side test. The Lithgow car arrived at the Police Station at 3.00am (exhibit E).
The breath analysis machine at the police station was turned on at 3.02am. The operator was Cons Foran. The plaintiff explained the significance of this: "the breath analysis operators were instructed as soon as they're … introduced [to the person to be tested] to press a function key and report the time that the person walks into the breath analysis room. And that key stroke is recorded at 3.02" (T22.16). I can readily accept that the car arrived at the station at 3.00am and that by 3.02am ARG had been escorted from the car into the station and into the room housing the breath analysis machine. The Escorting/Arresting Officer Questionnaire (part of exhibit H) records the 15 minute period of observation as commencing at 3.02am.The same form tells me that ARG admitted that he had been drinking at the Lithgow Hotel. He said his first drink was at 10pm and his last drink was at 1.45am. He admitted to drinking an unknown number of middies of Tooheys New beer. During that period he had not consumed any food. Cons Foran completed an "Observations" form (part of exhibit H). The relevant observations are these: "Attitude: Cooperative; cocky. Actions: Restless Eyes: Eyelids drooping; pupils pinpoint Balance: Unsteady; swaying; staggering …at scene and station Movements: Appeared normal Opinion: Moderately affected due to liquor." (The underlined matter has been added by Cons Foran, unprompted by the form.) There is then a heading "Contemporaneous Notes: under which Cons Foran has recorded seven matters. The final three matters are: "Arrested at scene: [he said] "Bloody women" Middies - "Spent about $35, … if that" Food: "Aa, I had tea before I went out. I had tea about half 8." In the "Fact Sheet" (also part of exhibit H) that he prepared that morning Cons Foran also recorded that whilst he was speaking with ARG his breath smelt of intoxicating liquor. In that document he attributed the words "Bloody women" used by ARG as the explanation for his drinking. At 3.16am ARG commenced to blow into the analyser. At 3.18am the analyser returned a reading of 0.095 grams of alcohol per 100 millilitres of blood. The last two times as well as the time of 3.02am must be taken as accurate as they have been generated by the analyser itself. When Cons Foran advised ARG of the reading, he recorded ARG as saying, "Not much you can say about it, ay" and that he then shrugged his shoulders.
Cons Foran's statement then states this about his further involvement with ARG: "I then completed the appropriate entries in the Breath Analysis Data Record book. I attempted to [operate] the printer attached to the B.A.S machine without success. I then had to complete the section 4E certificate in writing. [ARG] was then taken to the charge room and placed in the lexen dock for preparation of charging and processing. I remained in the B.A.S. room, where I made inquiries on COPS as to [ARG]'s licence details (whether licence was cancelled etc) and criminal history. I then began a COPS event to obtain the COPS number, where I exited COPS and began the Fact Sheet relative to the P.C.A. offence. I was printing the completed Fact Sheet when I was approached by Senior Constable SEE, who informed me that two females had been assaulted near the Lithgow swimming pool. He then informed me that both females had been picked up by a taxi driver and conveyed to Lithgow Hospital for treatment of the injuries sustained in the assault. About 4.18am on 2 March 1997, I left Lithgow Police Station with Probationary Constable HEVERS, where we travelled directly to Lithgow District Hospital to obtain details of the assault. …" It is clear from PC Hever's statement (exhibit Q2) and from his record of interview with Super J G O'Neill on 12 March 1997 (exhibit Q3) that PC Hevers stayed in the breath analysis room with ARG whilst the plaintiff and Cons Foran were "coming in and out". He confirms that after Cons Foran advised ARG of the result of the test, ARG was escorted to the charge room and charged with mid-range PCA at "approximately 3.35am". PC Hever's statement continues thus: "[ARG] was then fingerprinted and photographed by myself. While I was doing this I was informed by Constable FORAN that we had a job at the hospital. I said to Constable FORAN "What's the Job?" He said "I think it's an attempted sexual assault." I said "Fair enough". That was at about 3.50am. After I fingerprinted and photographed [ARG], Senior Constable SEE entered the charge room and then continued with the charging and bailing of [ARG]. At approximately 4.10am Senior Constable SEE, read the bail conditions to [ARG] and had his property returned to him. [ARG] was then released from custody, at 4.14am. Constable FORAN and I then got the sedan out of the van dock at the rear of the station and proceeded to Lithgow District Hospital."
ARG's matter was the subject of the then "On-line Charging" system. The charge sheet says that ARG was charged at 3.35am. The plaintiff's evidence is that this was the "commencement" of the charging process. There is some confirmation for this on the document itself as ARG acknowledged receipt of a copy of the charge sheet at 4.10am. Because of his arrest at the police station, ARG's personal effects were handed to the police. Property Docket No 0000841 has a time endorsed on it of 3.53am and ARG timed the return of his property to him at 4.05am. The time of 3.53am is not the time of either the commencement of or completion of the form, but rather the time that it was printed (T203.33 to 203.37). Before his release from custody ARG was, obviously, granted police bail. The grantor of the bail was the plaintiff. At T126.24 (in cross-examination) the plaintiff admitted that he "would have made the decision [to grant bail] about the time he commenced the on-line charging process" i.e. 3.35am as by then "[a]ll the relevant checks would have been completed." but he then vacillated about that (T126.42). However, I accept that it would have been the last thing to be done before ARG was released from custody. The "relevant checks" would have been ARG's licence details and criminal history, enquiries made by Cons Foran.
I can accept that, shortly after 3.18am when breath analysis was completed and then, after Cons Foran made the entry in Breath Analysis Data Record book and completed a section 4E certificate in handwriting, ARG was taken to the charge room. He had to be fingerprinted and photographed by PC Hevers and then the plaintiff commenced the charging process at 3.35am. There had to be completed: 1. the charge sheet; 2. the property docket; 3. the bail form; 4. the Facts Sheet (by Cons Foran, on a different computer program to that used in On-Line Charging (T125.30)); and 5. the On-Line Charging/Prisoner Cover Sheet (by PC Hevers, but whether at this stage or not is quite unclear). I also accept that these documents, together with the Questionnaire completed by Cons Foran, if not completed by the plaintiff, had to be checked by him. Whether this occupied all the time between 3.35am and 4.14am when, according to PC Hevers, ARG was released from custody is not only a moot point, much debated in these proceedings, but one which remains quite unclear - the only direct evidence on it was given by the plaintiff, 18 years after the event.

[15]

Assaults on young women

Mrs Barbara Louise Morrison was (and may well still be), I infer, a long-time resident of Lithgow. In March 1997 she was working for another lady as a casual taxi driver. She undertook a shift of 12 or 13 hours commencing at 4pm on Saturday 1 March 1997. At a time that she estimated to be 2.45am on Sunday 2 March 1997 she was parked on the southern side of Main Street, Lithgow near Fossey's hoping to obtain a fare from a customer leaving one of the nearby hotels. She saw two young women, Ms Melanie Spillane (aged 23 years) and Ms Kerry Anne Tonkin (also aged 23 years) leave the Lithgow Hotel and start to walk west along Main Street towards the nightclub "Nitespot". She did not see where they went from there. Mrs Morrison then obtained a fare and drove to the western end of Lithgow. After dropping off her passenger she drove back towards the centre of the town. Paragraph 5 of her statement of 4 March 1997 (exhibit T1) contains this: "5. … I was then driving East in Main Street when I came to the intersection of Main Street and Ferro Street. While I was nearing this intersection I saw a female in the middle of the street waving at me with both arms outstretched to stop. I then realised it was [Melanie] SPILLANE. When I stopped [s]he got into the front seat of the taxi next to me. She said, "Can you please ring the Police, I've been attacked. Kerry is still down there and I'm worried about her." I said, "Calm down, your [sic] safe now." I then pulled over and I rang the Police. I don't know what time this was, but I am sure it was between 3am and 3.30am. I said, "It's Barbara MORRISON. I am driving a taxi and I've just been hailed down by a girl that is very distressed. Her and her friend have been attacked down near the swimming pool. Her friend is still down there, can you send a police car." The officer said, "I can't help you, I will have to call one from Portland." I said, "I will have to go down there then, it's not good enough. 6. I then turned around and drove back to George Coates Drive and turned under the viaduct and then right into James Street. I then drove to the car park in Conran oval which looks over Conran Oval and Watsford oval. I then shone the car lights over the ovals and I saw Kerry out in the middle of Watsford oval which is the bottom one. [Melanie] was calling out to her and she came over to the taxi and hopped into the passenger side. I then contacted the Police Station again and spoke to the Police and I said, "It's Barbara MORRISON again, I've found the other girl and one of them is bleeding from the back of the head. Would you prefer me to take them to the Hospital? He said, "Yeah if you don't mind." 7. I then drove back down James Street to George Coates drive. … 8. I then drove back under the viaduct and turned into Main Street and drove the girls to the hospital. I then stayed with the girls until the nursing sister came down and saw them. While I was with them at the hospital [Melanie] asked me to contact her parents for her and get them to come to the hospital. She then said to me, "I am worried about Allison." I said, "Who's Allison?" She said, "Allison Lewis. She lives in Park Parade, can you please ring her parents. She was supposed to meet us down at the pool. I'm worried about her." I said, "No I think I should go back down to the Police, I don't think I should ring her parents." I was then about to leave and said, "I'll ring your parents and I'll go back down to the Police. Don't worry about her." I got into the taxi and tried to ring [Melanie's] parents on the mobile but I couldn't get a signal, so I moved the taxi down to near the old nurses quarters and rang [Melanie's] parents and spoke to her mother as I was driving back along Bridge Street. 9. I then drove to the Police Station where I saw Constable See and I said, "Steve there [is] another girl down there and the girls are worried about her safety. They were supposed to be meeting at the pool. They want me to ring her parents up to see if she was home." Steve said, "You can't do that. Leave it with me. I said, "It's pretty serious Steve." I then left the Station and drove back up to the rank. I was at the rank for about five or ten minutes and it got the better of me thinking about what happened and I went home. When I left the rank it was 4.15am."
There is no dispute that, in each of the calls identified in pars 5 and 6 of that statement, Mrs Morrison spoke to the plaintiff who was also the person to whom she spoke at the police station. Mrs Morrison's telephone records were obtained in the police investigation. Her first call to the plaintiff was made at 3.18am and lasted 52 seconds. Her second call was made at 3.22am and lasted 26 seconds. The telephone call which she made to Ms Spillane's parents, identified in par 8 of that statement, was made at 3.32am and lasted 42 seconds. Ms Spillane's parents are Mr Kevin William Gee and Mrs Gai Gee. Mr Gee also provided a statement to the police. That statement corroborates Mrs Morrison's evidence that she called Mrs Gai Gee and spoke to her about Ms Spillane. Mr and Mrs Gee and their other daughter then went to the hospital to see Ms Spillane.
Mrs Morrison made another statement to investigating police on 12 March 1997 (exhibit T3).That provides further detail: "4. As I left the hospital I rang Melanie's mum, Gai, and informed her that Melanie had hurt her head, and she was at the hospital and wanted her to come up and see her. I was at the intersection of Bridge Street and Mort Street when that conversation finished. I continued on down to the Police Station and parked in the five minute zone out front. 5. I entered the Police Station, where an officer came over and asked me what I wanted. I asked him was he the gentleman I spoke to and he interrupted me and said something that I didn't take in. I interrupted him and said, "I'm the taxi driver that picked [up] the two girls that were attacked, and I'd like to see who I spoke to on the phone.' He said to hold on and he would get him. 6. Steven (Steve SEE, I know him) walked out and he knew that I had rang. I said, 'Steve, the attack on the girls was serious. There's another girl down there. The girls (Melanie and Kerry) were really worried about her because she was on her own and meeting them down there. They want me to ring her parents up and find out if she got home.' Steve said that I couldn't do that, so I gave him the piece of yellow paper from my notepad in the taxi with her name and street (Park Parade) on it. I asked him if he could please do something about it, and I said, 'Steve, it's pretty serious.' I was at the Police Station only a short time; about a minute or a minute and a half. Then I left. 7. I would describe the first officer I saw when I came to the Police Station as slight build, about 5'10" and with close cropped reddy or light coloured hair. He was in regular uniform. I had never seen him before. I don't know his name. 8. When I left, I went back around to the cab rank. 9. I didn't do any more jobs, and then I thought about what had happened and decided to go home a bit early. I should have worked until five, but I went home at 4-15am. I took that time from the taxi's clock." There is no dispute that the policeman identified in par 5 of this statement and described in par 7 is Cons Foran, who described himself similarly to par 7 in his record of interview (exhibit P3, A18) and denied that any other policeman on duty that evening could be so described. Unfortunately, when interviewed Cons Foran could not recall speaking to any woman at the police station.
Further inquiries were subsequently made by the Ombudsman in an attempt to establish the correct chronology. On p 16 of the Ombudsman's report of 20 August 1997 (exhibit Y) the following matters are stated: "The following evidence was obtained through inquiries by this Office: Lithgow Hospital records state that Melanie and Kerry were seen by a doctor at 3.40am. Their actual time of arrival at the hospital was not recorded, but advice from the Area Health Service states" When the women arrived, the switchboard operator advised the night manager who then admitted the girls to the Emergency Department. The doctor was called at 3.35am. The night duty supervisor was Sister Dianne Muldoon. Her recollection is that Mrs Morrison "came into the Department with the girls, but then went outside and out of her sight." The doctor, Dr Celeste Spamer, says that she looked at the kitchen clock when the phone rang and that the clock showed 3.35am. Dr Spamer says that the parents of one of the girls drove up to the casualty door at the same time as Dr Spamer entered casualty. This was at approximately 3.45am. The girls were alone with Sister Muldoon at this time. Dr Spamer says she was with the girls for 30-35 minutes. She was with the girls for the whole time, part of which was spent in the "minor ops" theatre, where she stitched one of them. At this stage Sister Muldoon was at the reception desk in casualty. Dr Spamer says there was no one with the girls during the period they attended casualty other than Sister Muldoon and Melanie's parents, Mr and Mrs Gee. Mrs Gee says that, when Mrs Morrison rang "around 3.30am", Mrs Morrison said that she had left the girls at the hospital. She thinks that Mrs Morrison said she was on the way to the police station. Mrs Gee says that she, her husband and their daughter, Nicole, arrived at the hospital at 3.45am. Following a conversation with Melanie and Kerry. Mrs Gee says that Mrs Morrison was not at the hospital at any time while Mrs Gee was there. The following evidence should also be noted: In a statement provided to Senior Constable [See], Mr Len Ashworth, managing editor of the Lithgow Mercury, says that Mrs Morrison rang him on 4 March 1997.He says that she told him the casualty block was closed when she arrived at the hospital and after making contact through an intercom it took about 10 minutes before a nurse arrived to open up. Senior Constable [See] stated that the drive from Lithgow Hospital to Lithgow police station takes 'between one and two minutes'." In his statement to the police Mr Gee states that he left the hospital with his other daughter to make a search of the area of the swimming pool (corner of James Street and George Coates Avenue) where he was at about 3.50am and that is not inconsistent with his reaching the hospital at 3.45am.
There can be no dispute that the times of Mrs Morrison's three calls, recorded by Telstra and provided to the police, are accurate. At the time of Mrs Morrison's first call to the plaintiff, 3.18am, Mrs Morrison had already rescued Ms Spillane. After speaking to the plaintiff, she went in search of Ms Tonkin. On or before 3.22am she had rescued Ms Tonkin before making her second call to the plaintiff at 3.22am over a period of 26 seconds. Travel time to the hospital would not have been much greater than 2 minutes. Exhibit J is a map of central Lithgow on which have been marked the then site of the hospital, the police station, the swimming pool area and the area where Ms Allison Lewis was found. Travel times between any relevant places could not exceed 3 minutes, bearing in mind travel conditions in the early hours of a Sunday morning, within Central Lithgow, not involving the Great Western Highway. However Mrs Morrison did interrupt her journey to the hospital to speak with two other taxi drivers (in one cab) to tell them what had happened (she had previously alerted other cab drivers to Ms Tonkin's being "missing" by radio message) but that interruption would not have taken any longer than one minute. Accordingly, I accept that Mrs Morrison would have arrived at the hospital at approximately 3.26am. Mrs Morrison must have left the hospital by 3.32am at the latest to commence her call to Mrs Gee during that minute. When she left the hospital she did so after the two young ladies had been admitted into the hospital. According to Mrs Morrison's statement (quoted at [23] above) "the nursing sister came down and saw them". The Ombudsman's report refers to "the night manager" admitting the two young women to the hospital and then to the "night duty supervisor" who was Sister Muldoon. It seems likely to me that the "night manager" and the "night duty supervisor" are both descriptions of Sister Muldoon's role. I conclude therefore that by at least the beginning of 3.32am the two young women had entered the hospital building and were in the care of Sister Muldoon. Such a finding is not inconsistent with her taking a brief history, making a brief examination of each young woman and then calling Dr Spamer at 3.35am. Of course between 3.26am and 3.32am there can only have been 6 minutes or less, which is not consonant with the estimate of "10 minutes" provided by Mrs Morrison to Mr Ashworth but, firstly, that is hearsay, and, secondly, when one is waiting time passes very slowly and estimates of time spent waiting are often, unconsciously, exaggerated. The question then becomes: when did Mrs Morrison reach the police station and speak to the plaintiff? Even allowing 2 minutes to travel from the hospital to the police station and then parking the cab, entering the police station and speaking to Cons Foran, Mrs Morrison must have spoken to the plaintiff at 3.35am or 3.36am. The Ombudsman concluded that Mrs Morrison arrived at the police station at "about 3.35am". Unfortunately, no re-enactment of Mrs Morrison's journey from the hospital to the front counter of the police station was made. My conclusion on the evidence before me is that Mrs Morrison's meeting with the plaintiff was somewhere during the period between 3.35.00 and 3.36.59am.

[16]

The plaintiff's response

In discussing the response to Mrs Morrison's two telephone calls and her short meeting with the plaintiff on this Sunday morning. I am required to consider what the plaintiff did but I approach what he has said about it circumspectly for good reasons. The plaintiff completed his shift that morning at 6.45am. Ms Lewis was still missing at that time and a search was underway to find her. About 2.30pm on that Sunday Ms Lewis' body was found, buried in a long jump pit at the Jim Monaghan Athletics Oval (not far from the swimming pool) in Lithgow. She had been murdered. When the plaintiff went home, he went to bed. He was woken by his wife in the afternoon. She advised the plaintiff of the discovery of Ms Lewis' body. The plaintiff worked another shift commencing at 6pm on Sunday 2 March 1997. His next rostered shift was on Thursday 6 March commencing at 8am. In the interim there was, predictably, media coverage of this major crime. The plaintiff's wife's aunt rang the plaintiff's wife to advise that Mrs Morrison was going to make a complaint about the police response and, to that purpose, had attended the hospital to obtain faxes from A Current Affair. This upset him. He noticed that when he went "shopping people would look at [him] and turn to people they were with and mutter things". That made him "very uncomfortable". When he returned to work on 6 March comments were made by other police officers. He saw Mrs Morrison at the police station that afternoon and saw her enter Ch. Insp. Leacy's office. The next day he was too ill to work. "The media circus descended on town". On the evening of 11 March 1997, A Current Affair commented on the poor response of police to the report that Ms Lewis was missing and the times of Mrs Morrison's calls as recorded by Telstra were broadcast. The plaintiff heard all this. On the following day at 10.16am he was served with a directive memorandum (exhibit L) requiring him to prepare a report. He was interviewed on that day, after making his report, by Super. O'Neill. There was another interview on 13 March 1997 between 9.30am and 11.15am. There was a third interview on 14 March 1997 with Ch. Insp Leacy for 37 minutes. There was an extensive police investigation, then an investigation by the Ombudsman after a complaint by a parliamentarian and then a public report by the Ombudsman, with continuing media coverage which the plaintiff believed was biased and unfair to him. The plaintiff has "lived" with the effects of "this" to this day. I would naturally expect him to be defensive and that his recollections of what occurred to be affected by his experience and therefore to be unreliable.
Mrs Morrison said that the plaintiff's response to her first call to him was, "I can't help you, I will have to call one from Portland." In his report in response to the directive memorandum given to him on 12 March 1997. The plaintiff said this: "At 3.18am I received a telephone call from Barbara Morrison a taxi driver. She informed me that she had been hailed by a woman who had been attacked. She further stated that a friend that she had been with at the time was missing. I immediately called Portland by police radio and informed them to come to Lithgow to attend to this incident. They replied that they were prepared to come in and advised me that it they were to attend the job it would involve overtime being incurred. My exact words to them was "If it has to be. It has to be." They replied that they were responding immediately." In his statement (exhibit R2) Cons Thornberry said: "We were called, at around 3.35am to an assault that had occurred at Lithgow. We were making our way to Lithgow when we informed SC Steve See that we finished at 4.00am and not 4.30am and we would probably incur overtime […] At around 3.40am, we had travelled to half way between Portland and Wallerawang when SC See informed us that we would not be required to attend the assault in Lithgow." In his statement (exhibit S2) Cons Sinclair gives the same estimates of time but a little further detail: "… about 3.35am when we received a call from Senior Constable SEE via the Police Radio that a female had been assaulted in an area near the Lithgow Swimming Pool. He further stated Lithgow 1 was off the air with a P.C.A Charge and the job was ours. I said, 'We will do it but you realise we will be on overtime.' He said, "When [do] you finish?" I said, '4.00am'. He said, 'Can't be helped, the job is yours.'" Constable THORNBERRY and I then left the young people and started to drive to Lithgow. About 3.40am we received a second call via the radio from Senior Constable SEE saying, 'Disregard the job. The girls are at Lithgow Hospital and Lithgow 1 will attend and take a report'. I acknowledged the call and we did a U-Turn and returned to Portland where we did a short Patrol." Clearly, the estimates of time of Cons Thornberry and Cons Sinclair are wrong. Mrs Morrison's first call to the plaintiff was at 3.18am and her second call to him was at 3.22am. Each of Cons Thornberry and Cons Sinclair state that there were two calls made by the plaintiff: the first had to be before 3.22am and the second call after that time. There were about 4 minutes between Mrs Morrison's two calls and each of the constables gives an estimate of 5 minutes between each call which is consistent in my assessment.
The plaintiff's record keeping was poor. There is no record in the NSW Police Radio Log (exhibit G) of either call to Wallerawang 1. The General Station Pad record (exhibit F) either conflates Mrs Morrison's two telephone calls or records only the second call and provides an incorrect time. The entry on the Station Pad is: Date, Time and Action Required Particulars Police in Charge, Action/Result, Time, Date, Signature and Rank of Police Involved 2/3/97 3.31am WOMAN IN DISTRESS From: Barbara MORRISON I have just picked up a girl from behind the Lithgow pool. She is distressed and told me that she had been attacked. She is bleeding. I will take her to hospital Lithgow 1 FORAN/HEVERS Lithgow Radio Taxis. Ph: [provided]

[17]

There is no dispute that in response to her second call to the plaintiff, Mrs Morrison was told to take the girls to the hospital (see [23] above). The plaintiff's statement of 12 March 1997 says this: "At 3.22am I received another telephone call from Barbara Morrison. She informed me that she had located the other woman and told me that there was no further immediate concern for her welfare. She also said that one of the women was bleeding. She asked me whether she should take them to the Police Station or the Hospital. I told her that they should get immediate medical attention so she should take them to the Hospital and I told her that I would arrange for our car crew to see them there as soon as they were available. As I was informed that there was no longer any immediate danger I called Portland 1 and informed them that they were no longer required."
I have already found that Mrs Morrison attended the police station and spoke to the plaintiff at 3.35 or 3.36am. At that time it is now common ground that both Cons Foran and PC Hevers were in the police station, involved in the charging of ARG. The Radio Log confirms that the Lithgow car went "off the air" at 4.19am, so the car must have left the station at 4.17 or 4.18am. Exhibit E (Lithgow Patrol Taskings p4), a record of the Lithgow car crew, tells me that the Lithgow car left the police station ("Time Out") at 4.18am. I accept that to be accurate. What did the plaintiff do between 3.35/3.36am and 4.18am? He merely told Cons Foran of a new "job". In [20] above I quoted what Cons Foran said in his statement. He was interviewed on the day he made that statement, 12 March 1997. The seventh answer recorded in that interview (exhibit P3) is this: "I was in the BAS room attached to the Lithgow Police Station where I was completing associated paperwork for the processing of the PCA offender when SC See entered the room and informed me of an assault upon two females which had taken place previously and they had been conveyed to Lithgow Hospital." Unfortunately, Cons Foran was not asked to give an estimate of the time that the plaintiff informed him of the assault on the two young women. However, he made it quite clear that the plaintiff did not advise him about a missing person. Questions numbered 34 and 35 and his answers to them are these: "Q34. When did you first hear the name Alison Lewis? A. The first time I heard that name was upon my arrival at the hospital when I believe one of the other victims mentioned her. Q35. Is there anything you wish to add to this Constable Foran? A. The first time I had any knowledge of the involvement of a third person as a victim was when I was informed by the victims I spoke to at the hospital. I obtained brief details verbally from those victims and made my way directly to the vicinity of the Lithgow Swimming Pool."
I have quoted in [20] above what PC Hevers said in his statement, of the communication he received from Cons Foran. He was also interviewed on 12 March 1997. The seventh answer he gave, contained in exhibit Q3, is this: "To the best of my recollection I was in the charge room watching [ARG] and Cons Foran came in and told me there was a possible sexual assault or an assault on a couple of girls." He was not asked anything about the time of this conversation with Cons Foran, but there is nothing to challenge and no reason to doubt his estimate of about 3.50am. I have no hesitation in finding that shortly prior to 3.50am the plaintiff told Cons Foran, in the breath analysis room, of the new "job" and later at about 3.50am Cons Foran told PC Hevers about it in the charge room.
In his report of 12 March 1997, in response to the directive memorandum, the plaintiff said this: "About the time that Lithgow 1 arrived at the Hospital Barbara Morrison arrived at the front counter at Lithgow Police Station. She handed me a yellow post-it note with a lot of writing on it. She informed me that the women at the Hospital are concerned about another woman they had planned to meet near the Lithgow Pool. I could just [read] the name Alison Lewis on the note. A short time later Lithgow 1 called back on from the Hospital and they informed me that they were going to search the area around the pool for another missing person. They also informed me that the women would be attending the Police Station to give statements." The plaintiff was questioned on the same day. Part of that interview is this: "Q11. What time did the crew of Lithgow One leave the station to go to the hospital? A. I'm not sure of the exact time. But it would have been very shortly after 4.10 am, which is when the person signed for his property. Q12. Could it have been ten minutes or longer? A. No. As I recall on the radio log they called off at the hospital at 4.19 Q13. How long does it take to drive from Lithgow Police Station to the Lithgow Hospital? A. To drive directly there would take between one and two minutes. Q14. You say that Barbara MORRSION arrived at the front counter of Lithgow police Station and handed you a note. How long did she remain at the Police Station? A. It would have been less than one minute. Q15. Did you have any conversation with her? A. She handed me the note and said this is the name of the girl, to the best of my recollection, who they were going to meet there and they were worried about her. I took the note. It was very hard to read, but I managed to make out the name "Alison LEWIS". I said, "Thank you for that information, I'll pass it on." Q16. Is this the first time you became aware of a third person being involved? A. Yes. Q17. Do you recall what time this was? A. No, I don't. But it was about the time the crew of Lithgow One were at the hospital."
The plaintiff was again interviewed on 13 March 1997. The record of that interview is exhibit N2. I must quote it in extenso: "Q5. You recount that Mrs. Morrison, the taxi driver, came to the police station. Did you meet her directly at the station counter as she came into the Police Station? A. Yes Q6. Is it not the case that another police officer met her at the counter and came and told you that this woman was there to see you? A. Not that I recall. Q7. It is possible this could have been the case? A. Yes, it is possible, but to my recollection I met her. Q8. Can you tell me again, and you have your notes to refer to, the time as near as accurately possible, Mrs Morrison entered the Lithgow Police Station on the morning of the second March, 1997.? A. To the best of my recollection, it was about the time the crew of Lithgow One called off at the hospital. It may have been that they were about to leave the station to go up there, but it was about the time they were going up there to do the job. It may have been the car crew was still at the station, but just about to leave. Q9. I put it to you and please give this careful consideration, Constables Foran and Hevers were still at the police station when Mrs. Morrison came and spoke with you. What do you say about that? A. I've tried to remember this I've agonised over this. I just can't be sure whether they were about to leave or whether they had already left. It is quite possible they were still there. Q10. Please refer to your notes. Is there anything you wish to add or subtract from your stated conversation with Mrs. Morrison when she came to the police station.? A. In my answer to Question 6, I said I believe I was told the offender had run away. I can't recall whether she had said that, but - INTERRUPTED BY O'NEILL - I'm referring when Mrs. MORRISON came to the Police Station. By SEE, No that was the conversation as I remember it. Q11. Therefore, would I be correct in saying, following your short conversation with Mrs. Morrison at the Police Station you were aware that a female, Alison Lewis, was also regarded as missing? A. Yes. But all I had at that stage was a name. I had no description and as far as I know no other inquiries had been made to ascertain her whereabouts at that stage. Q12. Did you convey to Constables Foran and or Hevers this information regarding Lewis? A. As far as I recall I did. But as there was no supporting information at that stage, I requested them to attend the hospital and find more information. Q13. From what you have just told me is it then likely that Constables Foran and Hevers were in fact still at the station when Mrs. Morrison spoke with you briefly? A. Yes, it is possible. As I said before. I've tried to remember and agonised over this, but I'm not sure. Q14. I'll ask you again. Did another officer come and tell you that there was somebody to see you at the front of the police station and here I'm referring to your meeting and conversation with Mrs. Morrison? A. They may have. From what you are saying obviously the car crew was still at the station, preparing to leave so obviously Q15. I am not saying the car crew was at the station. I'm asking you to carefully recall all the circumstances as the events of that morning unfolded, so as that I can accurately and truthfully obtain a sequence of events. Do you understand this? A. Yes, I understand that. As I've said, I've given this a lot of thought. I'm still just not sure whether [it] was the police it may have even been the cleaner, who met Mrs. Morrison at the inquiry counter. I'm sorry I've tried my best to remember. Q16. Do you wish to reconsider your statement regarding the times Mrs. Morrison came to the Police Station on that Sunday morning? A. As I've said a few times, I have tried to remember exactly what was happening when Barbara Morrison arrived I just can't be sure whether the car crew was still there or whether they had left and I was tidying up the records in the charge room. Q17. Is it possible that Mrs. Morrison may have come to the police station as early as 3.35am on that Sunday morning? A. No. If I had that information at that time I would have called the police from Portland in again. Q18. Are you sure of your answer here? A. To the best of my recollection, Yes. Q19. What time does the cleaner commence duties at this Police Station on a Sunday? A. I'm not sure, I think about 4. Q20. I've been informed that Mrs. Morrison entered this police station and spoke with a police officer who is described as having very short fair hair. This person referred her to you. What do you say about this? A. From that description I would assume that was Constable Foran and that may have been the case. I just can't be sure. I'm sorry but I've tried my best. Q21. I've been informed that Mrs. Morrison asked you whether she should call the parents of Lewis. What do you say to that? A. I don't recall her saying that at all. Q22. I've been informed by Mrs. Morrison that she attended this police station and spoke to two police officers one being yourself prior to 3.40am on Sunday Morning the second of March. What do you say about that? A. As far as I recall it was later than that. But all I had as I said was a name when she arrived at the police station. And I felt it important to get information from the other two girls, before worrying the family. To find out what she was going to do and even at the completion of my shift at 6.30am we were still unsure as to whether she had actually gone to that location. Q23. What do you rely on to aid your recollection that this all took place later than 3.40am? A. I'm trying to remember what I was doing at that time and I believe, I know I was in the charge room. I'm trying to remember what I was doing but I'm not sure as to whether I was just tidying up the records or in the final stages of bail. I've tried. I know you consider it important. I just can't remember. Q24. You referred in your answer to Question 22, in part "before worrying the family". Why would this have been a consideration specifically at this time? A. Well, I thought it important to eliminate other possibilities before possibly causing needless concern for her family. Obviously it wasn't needless, that's in hindsight." Clearly the plaintiff attempted to maintain his original story but vacillated in light of questions which suggested that there might be evidence to the contrary.
In the interview conducted on 14 March 1997 by Ch Insp Leacy, the plaintiff said this: "Q6. Do you recall me asking you if you could have been confused about the time Mrs. MORRISON attended the police station and spoke to you? A. Yes, I do. Q7. Would you now recount that conversation, please? A. I've tried my best to remember the time Mrs. MORRISON, but I suppose I have suffered a deal of psychological stress and that has blanked a lot of it from my memory. I can't be sure of my times, but if she came to the station about twenty to four, or about that time, then I know my training would have had me calculate the time it would have taken the Portland Car to get into town compared to how long it would take to complete the processing of the prisoner or to recall and get other police to the station to attend the incident. I consider there would have been very little difference in the response time of any of those three alternatives. This would be the normal process any supervisor would have considered in these circumstances and usually follow this sort of reasoning. Q8. Would you have followed that "sort of reasoning" on the morning of the second of March, 1997.? A. Well, as I said, I haven't got that independent recollection of the sequence of events, but I'm sure that I would have followed that calculation in reasoning on that morning. Q9. Are you saying that the timing sequence by Mrs. MORRISON was correct? A. No, what I am saying is that I'm not sure. I just can't remember. What I am conceding is that if her timing was correct, then I would have followed this course of action. Q10. Would it have been reasonable, given all the circumstances of the incident, to have followed that course of action? A. Yes, with the information available, which was that there was no danger to the two girls who had been assaulted and that the offender had decamped. Then I was given information that Alison LEWIS had arranged to meet the two girls near the pool. They were unsure whether she had really decided to stick to those arrangements or made other plans. They were very upset and it was very hard to get information from them. I got the opinion they were keeping some things back as if they were trying to cover their own backsides, probably that they were going to sneak a swim at the pool. Q11. With the value of hindsight, would you have taken the same course of action? A. Yes, given the same information and resources available. I feel so sorry for what the family is going through and disgusted at the effect the media has had on the whole community, but in the examination of the facts, I am confident that I acted professionally, under these circumstances. Q12. Is there anything more you want to say? A. Again, I am prepared to assist this inquiry in any manner whatsoever. I have nothing to hide and I am sorry that I haven't got the precise memory of the sequence of events you want, but I have given a scenario of what have occurred if MRS. MORRISON['S] times are correct." The same phenomenon is clear in this interview, but it sets out arguments used subsequently by the plaintiff to justify what he did not do.
It ought be clear that between 3.35/3.36am and 4.18am when the Lithgow car departed the police station to go to the hospital that the only thing that the plaintiff did do was to advise Cons Foran of the intelligence Mrs Morrison had conveyed to the plaintiff at 3.22am and assign to the Lithgow car crew the task of attending the hospital and interviewing the victims. It is clear that the plaintiff did not do the following: 1. tell Cons Foran that there was a third young woman thought to be missing; 2. tell Cons Foran her name or the name of the street in which she lived (the plaintiff admitted in his sworn evidence that Mrs Morrison's note did contain the name of Ms Lewis' street T156.31); 3. hand to Cons Foran the note on yellow paper handed by Mrs Morrison to the plaintiff; 4. tell Cons Foran of Mrs Morrison's perception of the seriousness of the situation; 5. ask Cons Foran and/or PC Hevers to expedite the processing of ARG; 6. tell Cons Foran and PC Hevers to stop processing ARG, attend to that himself and instruct the car crew to make urgent investigations forthwith; 7. ring up Ms Lewis' parents as he said he would, as recounted in Mrs Morrison's statement or, if he gave no such undertaking, making a decision to ring Ms Lewis' parents and inquire if she were at home or, for example, that she had gone to the home of a relative or friend and had been safely accounted for; 8. call Wallerawang 1(which did not go off duty until 4.00am) to Lithgow either with or without expedition, to undertake a search or otherwise assist; 9. call Ch Insp Leacy at that stage for advice or assistance as he did at 5.20am; 10. in the alternative to (f), the breath analysis of ARG being complete, release ARG forthwith and post to him later a CAN ("future CAN") freeing up the Lithgow car crew; 11. go straight to the hospital himself, make enquiries of Ms Spillane and Ms Tonkin about Ms Lewis; 12. leave ARG in custody under the supervision of PC Hevers and go with Cons Foran straight to the hospital to make inquiries of the two victims there. Further permutations can be envisaged as to what the plaintiff could have done after his meeting with Mrs Morrison at 3.35/3.36am.

[18]

Police action

Once the Lithgow car crew interviewed Ms Spillane and Ms Tonkin there was prompt action. PC Hevers' statement (exhibit Q2), with some corrections continues (from that quoted in [20] above): "At … 4.19am Cons Foran and I called in at the Hospital. We were met at the front door of the casualty department by two women whom I now know as Melanie [Spillane] and Kerry Anne Tonkin. Cons Foran said to the two girls, "Are you the ones who called the police?" They said "Yes". Cons Foran said, "Can you tell me what happened?" Melanie said, "Well we were walking towards the pool to meet our cousin after we left the Nitespot. We got to the intersection of James Street and George Coates [Avenue]. That's when Kerry was hit, then I was hit." Kerry said, "Once I was hit I just started to run. I ran up and around the pool, and I could hear Melanie screaming." Melanie said, "After I was hit, the person started to grab the strap of my handbag, then started to pull me into the oval. I put my foot on the gutter to stop him from dragging me any further, then the strap on my handbag broke and I got away. We were supposed to meet our cousin down at the pool but when were there we did not see her. We are a bit worried about it, because of what happened to us." Cons Foran and I had a quick look at the girls' injuries. Cons Foran said to the girls, "if you go down to the police station we will go down to the pool and have a look for her now. Then we will come back and get a couple of statements off the pair of you."
The narrative of what then occurred is best described by Cons Foran in his statement (exhibit P2): "Probationary Constable HEVERS and I then left the hospital, calling back on at 4.25am, where we drove directly from Lithgow District Hospital, to the vicinity of Lithgow Pool. I drove the vehicle west along Main Street, turned right into James Street and travelled under the via-duct. I then followed James Street to the left to travel parallel to the railway line. When I reached the intersection of James Street and Albert Street, I drove the police vehicle onto the dirt area of the carpark attached to the baseball field. I engage the alley light of the roof bar and caused them to shine over the playing field area. I then noticed a red Holden utility parked in the carpark area. I drove towards this vehicle and observed a male person seated behind the steering wheel. As I got closer to this vehicle, I saw a female sit upright in the passengers' side. This female appeared to be laying down and across the bench seat. I stopped next to the vehicle and spoke to the driver and female. I asked if they had seen any persons around the area or heard any altercations. The male stated that they had only been there a short time and haven't seen anyone or heard anything. I then left these persons. Upon my approach, I formed the opinion that they were engaged in a personal act and were not in distress or imminent harm. I then patrolled the cricket field adjacent to the baseball field, where I again caused the alley lights of the police vehicle to shine onto the field. I observed no persons or property on the field. I continued to drive along James Street, where I turned right into George Coates Ave, and travelled past the pool, where again the alley lights were caused to shine into the pool area. I patrolled the vicinity of the pool where I made slow patrols of George Coates Ave, James Street, Wylde St, Fred Burley Drive, Longworth St, Hughes St and Barton St. We concentrated our search from the intersection of Longworth St and Barton St, down to the via-duct over George Coates Ave and over James St. We patrolled these areas slowly and made as many observations and searches as possible. We did not observe any person or persons in these areas. I drove the Police vehicle into the showground area and patrolled the building areas of the main grounds. No persons were seen in this area. We travelled out of the showground and when at the intersection of Barton St and George Coates Ave (near showground entrance), we parked the vehicle on the footpath facing the storm water drain. We got out of the Police vehicle and inspected the storm water drain with torches. I entered the storm water drain and walked along it for about 100 to 150 metre[s]. I walked along the boundary of the showground, searching for any evidence of Lewis (clothing, blood etc) or the handbag of Spillane. This search met with a negative result. About this time, I observed a male person who was identified as [name, address, date of birth]. This person was asked why he was in the area where he replied that he was a horse trainer at the showground and he started work at 4.00am every morning. This male appeared to be aggressive and hostile towards Police. He attempted to walk away on a number of occasions and was called back by us. He freely gave his name, but was not interested in hanging around while Police made inquiries. This person['s] details were given to Detective Sergeant Carter later on 2 March, 1997, along with his demeanour. Probationary Constable HEVERS and I then walked along the eastern kerb area of George Coates Ave, from the showground entrance to the James Street in an attempt to find an[y] evidence. This was also unsuccessful. About 5.00am on 12 March, 1997, Probationary Constable Hevers and I returned to Lithgow Police Station to obtain statements and details of the incident. Upon our return, I spoke with Senior Constable SEE in the B.A.S. room and discussed the potential seriousness of the missing persons (Lewis). A decision was then made to telephone Lithgow Patrol Commander, Chief Inspector Leacy. After this phone call where Senior Constable See spoke with the Patrol Commander, Detective Senior Constable G. Kennedy was contacted and recalled to duty. I then invited Kerry Tonkin through to the B.A.S room where I obtained a statement in relation to her assault. Probationary Constable Hevers was also present. During the time I was obtaining the statement, I attempted to gain as much details from Ms Tonkin by use of cognitive interviewing methods. In many areas, this proved unsuccessful, as she stated that she did not even know to be able to assist. I also attempted to establish if Lewis left the Nitespot with another persons [sic] and if so, who this person was. This also proved unsuccessful. I further attempted to establish if Lewis had actually attended the vicinity of the pool. This was unable to be confirmed. I established a time frame of events in my mind through speaking with Tonkin, where I attempted to pre-empt any movements of Lewis and the offender/s. I was, however, unable to confirm the direct movements of Lewis and could only assume she either attended the pool area, where there were concerns for her welfare, or that she did not attend the pool and met a friend outside the Nitespot and had gone to another location. Both Tonkin and Spillane had their injuries photographed by Senior Constable SEE prior to our return to the station and he was also obtaining a statement from Spillane."
The plaintiff's statement continues (after that quoted in [34] above): "The two women arrived at the Police Station sometime later. I am not sure of the time they arrived. When they arrived they requested the use of the telephone to locate their friend. I instructed them on the operation of the telephone and allowed them to use the telephone on the enquiry counter. I commenced to take a statement from one of the women. I also photographed their injuries. Whilst taking the statement Lithgow 1 returned to the station and commenced to take a statement from the other woman. Whilst I was taking the statement one of them informed me that they had a number of telephone calls in an attempt to locate their friend and they were concerned for her. I then immediately telephoned Chief Inspector Leacy at this home about 5:10am and informed him of the concerns. Chief Inspector telephoned me back about 5:20am. He informed me that he had given the matter consideration and told me to recall a detective to handle the matter. I eventually contacted the on-call detective Senior Constable KENNEDY. I appraised [sic] him of the situation and the concerns. He stated that he would [require] a lift to get in and that he would be ready for the lift in about fifteen minutes. I then continued the taking of the statement and completed it. Detective Kennedy was up and arrived at Lithgow Police Station about 5:55am. I briefed him on the situation and handed him the statements which had been obtained. He told me that he required nothing further from me or other police involved and that he would deal with the matter from there. I completed my duties and left the police station about 6:45am. At that time I was concerned that I would be criticised for over reacting to the information received at that time."
The Station Pad (exhibit F) entries recorded after that quoted in [30] above are these (allowing the handwritten corrections made by the plaintiff): 2/3/97 5.25am Assault & Rob To Chief Inspector Leacy Ch Insp Leacy informed of details of assault and rob involving SPILLANE and TONKIN. Also informed of fears for missing person from same incident. By Him "Call the detectives out and let them handle it." RECORD At home 2/3/97 5.25am DETECTIVE KENNEDY CALLED OUT RECORD To Detective Garry Kennedy at home Given details of assault and rob and concerns for missing person from same incident and direction from Patrol Command to attend and handle incident. Reply "I'll be ready in about 15 minutes."

[20]

Events on subsequent shifts

In [28] above I set out, briefly, some of the events which occurred after the completion of the plaintiff's shift at 6.45am on 2 March 1997. As stated there, the plaintiff's next shift commenced at 6pm the same evening. The evidence suggests that, as far as general duties police were concerned, there was only a car crew and a supervisor on duty that evening. The plaintiff would have been the supervisor, again. The plaintiff went on to say this about that shift: "I think that the detectives were still there and I would have asked them what they required from me to help their investigations. If they wanted me to prepare a statement or submit a report and they said, "Nothing at this stage, we're too busy." What the plaintiff noticed, and how he felt prior to the commencement of his next shift on Thursday 6 March 1997 I have recounted in [28] above.
The plaintiff's next shift commenced at 8am on that day. The plaintiff was due to attend court on a completely different matter at 9am. He encountered DSgt Carter on the staircase at the back of the police station, leading to the car park. DSgt Carter was in company with DSC Kennedy and SSgt Mark Minehan. There was a conversation. The plaintiff gave this evidence about it: "Q. Doing the best you can now, could you relate to the Court what that conversation was? A. I said, "You can't still be that busy that you can't tell me what you need. What do you want from me? So I can help, what can I do? Do you want a statement or do you need me to do a report. Just let me know and I'll get it done while it's still fresh." Detective Carter said, "The best thing you can do to help is hang yourself." Q. Was there any further conversation? A. They all had a laugh and said, "You're on the rescue squad, surely you can get a rope. The rescue squad is just near the Court, while you're there, grab one." Q. How did you react to that? A. I was upset because I'm trying to help and being told there's nothing I can do to help. Obviously a complaint was coming in and I wasn't aware of the substance of the complaint and they thought the easiest way to deal with it is to take me out of the way." The plaintiff spent most of the day at the courthouse. He then returned to the police station and had another conversation with SSgt Minehan. This evidence was given: "… he just said, "Haven't you got that rope yet?" He indicated and pointed to the back yard a big external light. He said, "There's a good hanging point." Q. How did you feel after those conversations, that is the one in the morning with Mr Carter and the one in the afternoon with Mr Minehan? A. I'm trying to help and they're not helping me to help or allowing me to help. I felt terrible." A little later, the plaintiff gave this evidence of further events on this afternoon: "Q. Did somebody enter the police station? A. Yes, yes. Yes, I saw Barbara Morrison come into the police station. She went directly to Inspector Leacy's office. Q. And did you observe her to leave or not? A. Yes, I did. Q. And after she left what did you do? A. I then went to Chief Inspector Leacy's office and said, "Was she complaining about me?" And he said, "Yes." I said, "Can we sort it out here and now?" And he said, "No, the complaint's still coming in and I want to get home to my family at Newcastle. Q. Was there any further conversation with Mr Leacy at that stage? A. Not that I recall. Q. And then was that towards the end of your shift that day? A. Yes, it was. Q. And going home from the shift that day how were you feeling? A. I felt terrible. The first time I'd experienced this where you're aware of a complaint but can't do anything about it. I had a massive headache, knot in gut. Yeah, nauseous, I couldn't sleep that night. I just felt terrible. Q. Is it the case then that the next day namely 7 March 1997 HIS HONOUR: Hang on just a minute. I'm just trying to get the symptoms down. Q. Any other physical symptoms? I know you felt terrible. You told me about you had a massive headache, you had a knot in the guts. You felt nauseous, that is you felt like vomiting? A. Yes. Q. And you couldn't sleep that night so you were A. I couldn't sleep and I was crying. Q. You were crying? All right, good, any other physical symptoms? A. I was shaking, that's all I can remember at this stage sir." He went on to say that he had never felt like that before. The extent of the plaintiff's distress following the events of this day was the subject of cross-examination (T109.39 to T111.17). The effect of that questioning was to highlight the extent of that distress, the seriousness of the complaint relating to murder and to establish that the plaintiff's "next most dramatic physical response" occurred on 12 March 1997. Mr Hutchings, for the defendant, stressed only the making of the complaint by Mrs Morrison to Ch Insp Leacy and not the interaction between the plaintiff and his colleagues. He was correct to do so. It is clear that the plaintiff did not believe shortly afterwards that the comments made by his colleagues were either serious, malicious or designed to annoy him, such that they would cause him any continuing distress.
In his report in answer to the directive memorandum of 12 March 1997 the plaintiff said at its end: "On my next rostered shift I asked as to what would be required of me to assist in the investigations. I was told that the best way I could assist the investigation would be to get a noose and hang myself. I feel that the police involved in this initial investigation have performed correctly and should be praised for our actions and not criticised. The only support has been from colleagues who are aware of the information supplied and [the] following actions." It ought to be noted that there may be a conflation of times in the beginning of this statement. The plaintiff did ask how he might assist the investigation on the shift commencing 6pm 2 March 1997 but the suggestion of his hanging himself arose on the shift after that, on 6 March 1997. It ought also be noted that there was no criticism of anyone who worked on the shift commencing at 6pm on 1 March 1997 other than the plaintiff, although "police" generally may have been referred to in the media. The plaintiff was questioned about his allegations against his colleagues on 12 March. His record of interview on that day contains these statements: "Q25. I draw your attention to lines two and three of your second last paragraph, specifically the words, 'the best way I could assist the investigation would be to get a noose and hang myself.' Who directed that comment to you? A. There were a few police who said that to me. I believe they meant it in jest. But I didn't take the criticism well. Q26. I ask you again, who were those police? A. Senior Sergeant Mark Minehan, Detective Sergeant Carter and Detective Senior Constable Kennedy. Q27. Why do you consider this comment was criticism? A. I knew then and I still know that everything I did was correct and took that as a criticism on the incidents leading up to the location of the body of Alison LEWIS. Q28. What incidents do you specifically refer to? A. I took that to mean I should have done more at the time. … Q31. Is there anything further you wish to say? [A]. Yes, a few things. The police I mentioned before about making that comment to me have since that day been very supportive of me when they became aware the pressure I was under. I really appreciate the support of all the police at this station, for their support. And then I'd like to say, I still firmly believe that I acted well with the information received and the resources available at the time. I deny any wrong doing and I'm more than willing to assist with any further inquiries."
The plaintiff was cross-examined about this. He was questioned about seeing Dr Leonard Lee, a psychiatrist, "in or about early 1998". No report from Dr Lee made its way into evidence. The plaintiff agreed that he told Dr Lee that the remark concerning hanging himself was said in jest. The plaintiff saw Dr James Maguire, psychiatrist, on 1 February 1999 for the defendant. His report, exhibit SS, has this history: "On the day after the media "circus" came to town he again approached the detectives and asked whether they wanted a statement. They told him a complaint had been made about the manner in which he handled the notification of the missing girl. It was suggested he "get a rope and hang yourself." His 'interpretation' of the detectives [sic] statement in relation to the rope was that their life would be made easier if he was not around. He realised they meant the statement as a joke but his peer support officer continued with the joke all day which caused him to be distressed." However the same history makes it clear that the major stressor was the complaint made by Mrs Morrison to Ch Insp Leacy: "Later that day he saw the female taxi driver at the station and have a meeting with the Inspector. He then approached the Inspector and asked what the taxi driver had been saying but the Inspector said he would talk to him later. By this time Senior Constable See "crashed" and felt acutely distressed. He described: A constant knot in his stomach. Severe headache. Being tearful and 'in a mess'."
The plaintiff's next rostered shift was to commence at 6pm on Friday 7 March 1997. The plaintiff told me that on this day he contacted the Police Welfare Branch, but not at what time. At 4.40pm the plaintiff telephoned the police station and left a message with Cons A Croker. Cons Croker recorded the message on the Station Pad thus: "SICK REPORT - SENIOR CONSTABLE SEE I will not be in for work tonight as I have a severe migraine. My rostered shift was 6pm. I believe that this illness is due to stress. I was told by Inspector LEACY yesterday that there is a complaint about me in relation to the murder on last Saturday night. However he refused to discuss the matter with me. He told me that he was leaving the area and that he would speak to me about the matter on Monday the 10/3/97. I have spoken to the Welfare Branch and I will be attending the Hospital tonight to get a medical certificate. My registered number is [supplied]." At 5.32pm, he presented to Lithgow District Hospital Emergency Department and complained that he was "stressed out" and wanted to see a doctor. He was seen by Dr Mark Roebuck at 6pm. The hospital records are exhibit NN. Dr Roebuck noted that the plaintiff presented with anxiety and stress. His history, as best I can decipher it, is this: "Involved in local murder investigation past few days. Public complaints have been made against patient re aspects of police investigation. Feeling very "stressed"." On examination the doctor noted that the plaintiff was emotionally very upset. He was tearful, but denied suicidal ideation. The doctor provided the plaintiff reassurance, a certificate and analgesia, "BZDs", for headache and anxiety. I assume "BZDs" mean benzodiazepam. He offered to contact the mental health worker but the plaintiff declined that assistance. Dr Roebuck offered the plaintiff "ongoing support".
The plaintiff told me (T44.13) that he needed that weekend shift off work so he could go back to work on the next weekday and "sort it out". He did return to work on Monday 10 March. He had a meeting and a conversation with Ch Insp Leacy. He was called into Ch Insp Leacy's office. Whatever the conversation was it was recorded but the recording was not produced (T45.46) The Chief Inspector called in Sgt Crew to act as a witness. The plaintiff said: "… he pressed record on his voice recorder or cassette deck and said, "I'm recording this for your protection and mine, and from my memory I just broke straight down in tears and said I couldn't understand why Barbara was being so horrible. I knew her through the Church." Despite this the plaintiff did his full, normal duties on this day.
On this day, the plaintiff completed a "Claim for Hurt on Duty Benefits" (part of exhibit BB). The date and time of the incident relied upon is 6 March 1997 at 6.30pm. The injury claimed is "migraine". The plaintiff provided this description of the incident: "Aware that complaint had been received of actions involving initial investigation resulting in [Jay William] SHORT being charged with murder. Patrol Commander informed me that he would speak to me in relation to complaint in four days. Following this unable to eat or sleep. Developed migraine headache and depression and anxiety." This claim was made because the plaintiff was absent from duty between 7 and 9 March 1997.
On Tuesday 11 March 1997 the plaintiff spoke with Mr Busby, a psychologist, from the Police Welfare Branch who attended upon the plaintiff in Lithgow. That evening on A Current Affair comments were made about an allegedly poor response by police in connection with Ms Lewis' murder (exhibit Y, p 1).
Wednesday 12 March 1997 was another significant, stressful day for the plaintiff. Ch Insp Leacy served directive memoranda on: the plaintiff at 10.16am Cons Thornberry at 10.24am PC Hevers at 10.25am Cons Foran at 11.27am Cons Sinclair at 12.15pm Super J G O'Neill interviewed four of these policemen: Cons Thornberry ending at 1.10pm the plaintiff ending at 2.06pm PC Hevers ending at 6.08pm Cons Foran ending at 8.25pm Ch Insp Leacy was present when the plaintiff was interviewed and it seems likely that he was the typist (as occurred on the following day) and it is also likely that the same procedure was adopted at all the interviews on 12 March. The plaintiff told me this about how he was feeling on 12 March during his interview: "I was still feeling uptight and I still had the headache and the knot in my gut. I wasn't feeling the best but I wanted to do my best to help and finalise the matter quickly."
On Thursday 13 March 1997, the plaintiff was again interviewed by Super O'Neill and Ch Insp Leacy acted as the typist and the Patrol personnel officer, Insp I H Lovell, was also present. The plaintiff was interviewed between 9.30 and 11.15am. Later the same trio of officers interviewed PC Hevers between 3.22 and 3.52pm. That afternoon, or evening, the plaintiff was interviewed at his home by Sgt Signorelli of the Police Welfare Branch. Indeed, at the end of his earlier interview the plaintiff volunteered that the Police Welfare Branch was then at his home, presumably interviewing Mrs See.

[21]

First resolution of complaint against the plaintiff

Friday 14 March 1997 was an RDO for the plaintiff. Nevertheless he was required to attend a further interview with Ch Insp Leacy which commenced at 9.27am and concluded at 10.04am. This interview appears to be the final investigation made by NSWPF into Mrs Morrison's complaint. Two documents were generated on this day by Super O'Neill: a 6 page report addressed to the Deputy Commissioner for Field Operations re "Delay in Police Response to the Investigation of an Assault on Two Females and a Missing Person at Lithgow during the early hours of 2 March, 1997" and an "Executive Summary" which was reviewed by Ch Super D S Graham, commander of the Western Region on the same day. Both of those documents are contained in exhibit CCC. The "issue" distilled from Mrs Morrison's complaint to Ch Insp Leacy of 6 March 1997 was that "Police failed to act properly on information supplied by a member of the public (taxi driver) about an assault on two females and possible missing female in the early hours of 2 March, 1997, in the Lithgow township." This issue was "not sustained". The executive summary says this: "In the absence of a direct admission of inaction by the Police involved the weight of the available evidence is against Senior Constable See's recollection. His case is further weakened by his lack of accurate recording on the station pad and radio log (attachment 2, p9. And attachment 3, p25) and specifically, the general station pad entry, entry 3/21, which is 13 minutes in conflict with Telstra records of Morrison's first call to the Police Station. However, in reviewing all the information available now, I am unable to find adversely in relation to the actual response by Police. At the first opportunity, having discharged their responsibilities in respect of their prisoner, Police attended Lithgow Hospital, interviewed the two victims, Spillane and Tonkin, and then did all in their power, without delay, to locate Lewis. I find this issue NOT SUSTAINED." Super O'Neill identified two matters arising from the police investigation: the inadequacy of the plaintiff's record keeping and S Sgt Minehan's making "inappropriate comments". For his failing Super O'Neill elected to "managerially counsel" the plaintiff and for his failing Super O'Neill determined that S Sgt Minehan be managerially counselled by Ch Insp Leacy.
In the main report, Super O'Neill made this general comment: "I have considered the involvement of Senior Constable Sinclair, Portland Police Station, and Constable Thornberry, Wallerawang Police Station, and consider their involvement peripheral and in no way blame-worthy. I have taken this matter no further. This investigation can be viewed from two possibilities. The first scenario is that Constable See, whilst busy with the PCA prisoner, is confronted in the Station by Morrison with the information about the third missing girl about 3.35am and has failed to attach any urgency at this time and further he has failed to communicate the fact of this missing girl to Constables Foran and Hevers who have subsequently gone to the hospital to be there told about the missing girl. In this scenario there is a time gap of 35 minutes till they charge their prisoner, bail him and then an additional 8 minutes from 4.10 allowing them to prepare to leave the Station and to drive to the hospital which would take a time of several minutes. Given the correctness of this scenario, the Lithgow car could not have responded to the hospital prior to the time they did. Had they been informed of the third missing girl, the details were sketchy and it was not confirmed that she was, in fact, missing. Only by speaking with the two victims of the assault could they clarify the hasty message of Morrison. At this time had Constable See recalled the Wallerawang car they would not have responded in much shorter time than the Lithgow car would have arrived at the hospital. The second scenario is that following the 3.32 phone call by Morrison to one of the parents of the assault victims and her arriving at the Police Station shortly thereafter, according to her, is incorrect. She may have engaged in some other activity, perhaps searching again as she had done when trying to locate the second girl earlier, before going to the Police Station. If this were the case, she may have arrived about the same time as Senior Constable See recalls Lithgow 10 going off the air at the hospital. Whilst there is limited evidence for both scenarios, the probability exists that the first scenario is the more correct. In the absence of any admissions by any party which deviates from their original interviews, I am unable to determine the exact truth. During this inquiry and on uncovering the deficiencies in record keeping I managerially counselled Senior Constable See. Discussions were had with Senior Constable See regarding his lack of supervisory skill. In consultation with the Constable and Inspector Lovell, the Central West Staff Officer Personnel, it was agreed by the Constable that he would seek a transfer to a larger Station where his supervisory skills may be enhanced and cultivated by more senior police. To this end Senior Constable See is to be transferred to the Katoomba Patrol from 16/3/1997." In the body of his main report Super O'Neill said this: "There is no doubt from the documentary evidence that the crew of Lithgow 10, Constables Foran and Hevers, were in fact engaged, in accordance with Commissioner's Instructions, with a prisoner between the hours of 2.56am and 4.10am…" Super O'Neill had no reason to question the pace at which ARG was being processed at the Lithgow Police Station on the morning of 2 March 1997, nor had any reason to question whether two police officers needed to be involved in that process.
On this day the plaintiff had a meeting of about 10 minute's duration with Super O'Neill in Ch Insp Leacy's office. He was managerially counselled for his inaccurate record keeping. The plaintiff told me (T49) that he told the Superintendent that he wanted to be transferred out of Lithgow to the Katoomba Patrol which would enable his family to remain in Lithgow and his young children could remain in their then present school. However the evidence suggests that his transfer could have been discussed earlier, in particular when Insp Lovell, the personnel officer, was present which was on 13 March. The plaintiff was then asked in his evidence to explain how he felt at the time of that interview with Super O'Neill and why he sought a transfer to Katoomba: "Q. How did you feel at that time, that is, at the end of that conversation you had with Mr O'Neill? A. I was relieved it was over and I could just start afresh at Katoomba. I was still a bit uptight, still suffering a few headaches and a knot in the gut but I knew I'd get over that in a short amount of time with a fresh start at Katoomba. Q. You said a moment ago that you asked Mr O'Neill for a transfer to Katoomba? A. Yes. Q. You wanted to get out of Lithgow? A. Yes. Q. Why? A. Because of the media. Lithgow is relatively a small town and everyone knows everyone - not everyone but most people know everyone, where you live and all your kids and just when I would go shopping with my wife you'd have people look at you and see you and then turn away and make comments. It was obvious what they were talking about. The rescue squad training before that, the Tuesday before, I was approached by one of the members of the rescue squad and he laughed and said, "Who's going to get the sack over this thing" and I had to explain to him that it was me but I'm not going to get the sack. I didn't go into too much detail with him but these sorts of comments around town it was just hard to stay working there. Q. Had you observed any media, up until this point, on 14 March? A. Yes. Q. What did you observe? A. It was on all the news reports, on every channel, but not the local news because it was on the national news, the local didn't cover it and, yes, just that a complaint was going in. The media were interviewing people in the street and getting their opinions which weren't true, they were mistaken in a lot of the things they were saying. Q. These mistakes you say they were saying, did you observe this in the media or not? A. Yes, I saw an interview of a man who works in a local hardware store and saying that the police were breath testing the main street at about 4am. That wasn't true. He was saying, "Why are they breath testing when a girl is getting murdered." Just untrue things like that." It should be observed that the "Tuesday" when the plaintiff was approached by a member of the Rescue Squad was the evening when A Current Affair broadcast criticisms of the police response to Ms Lewis' disappearance. A little later in his evidence, the plaintiff told me that he considered managerial counselling to be the end of the matter and that he could make a fresh start in his career at another station, that the matter was "completely resolved". He started working at Katoomba Police Station on Monday 17 March 1997, performing full, unrestricted duties.
On the same day the COP, Mr Peter Ryan, expressed his satisfaction with the police investigations. Ex 2, tendered by the defendant, is a clipping from the Lithgow Mercury of 18 March 1997, page 2. The heading is "POLICE DID ALL POSSIBLE IN MURDER INQUIRY". Below that headline is this: "Police Commissioner Peter Ryan said yesterday he was totally satisfied with police investigations into the murder two weeks ago of Lithgow girl Alison Lewis. The Commissioner was responding to criticism in a TV current affairs program last week. The program referred to police shortages on night shifts in Greater Lithgow and quoted criticism of the length of time allegedly taken for an investigation to be launched into the disappearance of Alison Lewis. Commissioner Ryan was questioned on the matters when attending a Safe Seniors Seminar at North Ryde yesterday. He said he was convinced police did all that they could at the time to respond to the incident. "Police did everything they could, given the information available to them at the time," he said. The Commissioner said there was no reason for any disciplinary action arising from the inquiry into the incident."
On 14 March the plaintiff had seen Mr Adrian Robinson, a psychologist practising in Lithgow. There are in exhibit PP two reports of Mr Robinson dated 10 July 1992 and 20 November 1997. The first of those reports refers to Mr Robinson's seeing the plaintiff on 14 March, 27 March, 11 April, 7 May and 18 June 1997. The last two of those occasions is after a further stressor. The second report refers also to a consultation on 2 September 1997 after further stressors. Mr Robinson's list of symptoms, his diagnosis and his opinion as to causation are all contained in the second report. In these circumstances, his reports can only speak as to the plaintiff's condition on 2 September 1997 and not earlier. However it is clear that the reason for the plaintiff's seeing Mr Robinson was the complaints made against him. According to Mr Robinson's second report, the history given by the plaintiff on 14 March included that Mr Joe McGinnis (a local identity and former Mayor of Lithgow) and Mr Mick Clough (the local MLA) had, together with Mrs Morrison, made a complaint to an Assistant Commissioner of Police, but the rest of the evidence is silent about any such complaint. If true, it attests to the level of opprobrium that the plaintiff must have felt at the time.

[22]

The Ombudsman becomes involved

On 7 August 1997, Mr Andrew Tink MLA, Shadow Minister for Police, made a complaint to the Ombudsman about the police response to Ms Lewis' disappearance. He sent further correspondence on the issue to the Ombudsman on 18 April and 26 May 1997. There was further media coverage. The plaintiff referred to further coverage on A Current Affair and to Mr Tink's appearing on television. The plaintiff said that this upset him: he believed that it was all over and wondered why the media were still in pursuit of the issue.
Exhibit GG was originally MFI4 on 23 February 2015. It was tendered on 26 February 2015 when, having read it I found that it was highly probable that it was, as indicated by learned counsel for the plaintiff, the preliminary report of the Ombudsman (T250.32). A covering letter bearing date 1 May 1997, addressed to the plaintiff at Katoomba Police Station, is headed "Complaint by Mrs Gee and Mr Andrew Tink MP about your conduct." The substance of the letter is this: "As you are aware, there has been an investigation of this matter by the Police Service under the Police Service Act. The Police Service has sent a report on its investigation to this Office. It is now the responsibility of this Office to prepare its own report on the matter. Enclosed is a Statement of Provisional Findings and Recommendations with respect to the matter. The purpose of providing you with that Statement is to give you the opportunity to make any submissions on the matter that you consider appropriate. If you wish to make any such submissions, please do so within 14 days from the date of this letter. If this Office does not hear from you within that period, it will be assumed that you do not wish to make any submissions, and this Office will proceed to prepare its final report on the matter. The Statement sets out the evidence and reasons relied upon to reach the provisional findings. However, I have also included the investigation report provided to this Office by the Police Service. I should advise you that the acting region commander, North West, has been sent a copy of the Statement and given the opportunity to make submissions. After I have considered any comments and submissions on the Statement, I will prepare my report on the complaint. In the event that any adverse finding by this Office is made against you, the report must be sent to the Minister of Police. You should not discuss any information in respect of this investigation with any person that you know, or have reasonable cause to suspect, is a witness or otherwise in this investigation. This particularly applies to Constable Foran and Probationary Constable Hevers." The Statement of Provisional Findings and Recommendations is also dated 1 May 1997. After canvassing the evidence the document says this: "When the taxi driver's first phone call was received at 3.18am, the breath test had been completed. All that remained to be done once the prisoner was charged at 3.35am were various administrative procedures to do with bail and the prisoner's property. It appears that Constable See was incapable of understanding the significance of what he was being told, particularly when Mrs Morrison came to the station and told him there was another girl missing who was going to the pool. From this information it should have been clear that Alison Lewis may have been in imminent danger. Having examined both the police version of events and that of the taxi driver, I prefer her version, which is extremely detailed and corroborated by the evidence of the mobile phone calls and the known facts leading up to her attendance at the police station. Accordingly, I believe that she reached the police station around 3.35am and certainly well before the police car left to go to the hospital (ie after 4.10am). I also accept her evidence that she saw another police officer at the station. Her description of the officer was found to fit that of Constable Foran. This means that the car crew were at the station when she told Constable See about the third girl who was still missing, yet both Foran and Hevers say that See did not tell them about Alison Lewis. See's comments about not having any information about Alison except her name show an inappropriate response to the situation. A girl was missing and there were fears for her safety. I note Constable Foran says that when he was told about Alison Lewis at the hospital, he went straight to Lithgow Swimming Pool. Given my view of the evidence I am of the opinion that Constable See should have ensured a prompt response by police in following up the information which Mrs Morrison had provided to him at around 3.35am. In light of the serious concerns which had been expressed by Mrs Morrison, there was no reason why a Lithgow car crew could not have been quickly sent to investigate the matter. One step Constable See could have taken was to attempt to promptly contact Alison's parents, as Barbara Morrison says she asked him to do. On this issue, See only refers to having Alison's name, whereas Mrs Morrison says she gave him the name and the address. I don't need to decide this possible conflict in the evidence, since even if he had only been given the name, then by inquiries with Mrs Morrison or by ringing the hospital and speaking with the girls, he could have promptly obtained the address. The call had a critical investigatory function, to find out if Alison was at home or not, and if therefore there was a reason to fear for her safety. Instead, it was left to Mrs Gay Gee, the mother of Melanie Spillane, to ring Alison's parents at approximately 4.30am when she arrived at the Police Station from the hospital. Mrs Gee found the phone number in the phone book. Another example of civilian response standing in stark contrast to police inaction is that Mr Gee drove from the hospital to the swimming pool at about 3.50am, almost 40 minutes before police arrived. Though the Police Service has found that police did not fail to respond promptly, I note that managerial action has been taken to address Constable See's 'lack of supervisory skill.' In my opinion the Police Service has failed to openly admit the errors made in this matter. Constable See's poor supervisory skills form only one part of his lack of professionalism in this case. I am particularly concerned about the version of events Constable See provided on critical issues in seeking to explain his conduct. This further demonstrates that Constable See has failed to give a reasonable account of vital issues relating to his own performance in this matter. His handling of the initial incident and his lack of clarity in his responses during the police investigation raise real questions as to his competence and appreciation of his responsibilities as a police officer. Of even greater concern is the lack of preparedness by the Police Service to appropriately acknowledge the full extent of police misconduct in this matter. Mr Andrew Tink, in his letter of complaint to this Office on 7 April 1997, raised the question of whether more flexibility could be introduced into the system prioritising calls for assistance. The Police Service should consider this suggestion. However, I consider that even within the present system, any reasonable officer would have been aware that the matters reported by Mrs Morrison required urgent action and would have acted accordingly. Recommendations: 1. That Senior Constable See's performance be reappraised in view of this report. 2. That the Police Service apologise to the parents of Alison Lewis for their lack of prompt action. I regard this as being of real importance." The document was prepared by Mr Steve Kinmond, Assistant Ombudsman (Police).
The above were either left for the plaintiff in his pigeonhole at Katoomba Police Station or handed to him. When that occurred is unclear. Again the plaintiff was "very upset". He believed the provisional report contained "a lot of inaccuracies" and was contrary to a "lot of important issues, especially relating to custody." Up until this time he had been improving, "getting better". This made him worse, "probably worse" than he was on 6 March. He had headaches, nausea, a knot in his gut. He was tremulous and tearful. He could not go shopping and he avoided going outside. He referred to the "Channel 7 Helicopter … buzzing over my house." He was again anxious and depressed. It could be that his consultation with Mr Adrian Robinson on 7 May 1997 was shortly after his receipt of this material. The plaintiff found it difficult to cope, but worked on.
On 22 April, the Acting Commander of North West Region, CH Super Shears had arranged for Super O'Neill's report to be delivered to the Ombudsman. At that time Ch Super Shears added this advice: "On considering the evidence generated by the investigation process, I agree … that the issue … cannot be regarded as being sustained and therefore propose no disciplinary action against any police officer involved." On 27 May 1997 Ch Super Shears provided to the Ombudsman submissions on behalf of NSWPF. The Ombudsman's final report does not state that those submissions are inconsistent with the NSWPF's stance thus far. On 30 May 1997 the plaintiff caused his solicitors, Messrs Oates and Smith, to provide submissions to the Ombudsman. A copy of those submissions is exhibit W. The "highlights" of those submissions are these. Firstly: "… Commissioner's Instructions and Police educators when, dealing with people being held in custody, emphasise the need not to leave prisoners alone with a single police officer. Furthermore, it was not a viable option for the prisoner to be temporarily held in a cell, bearing in mind the danger to which a prisoner would be exposed by such a course. On this end there is not more tragic, or graphic example of Angus Rigg. It was in just such circumstances as this, where police left the station to attend to another job, that Angus Rigg attempted suicide in the exercise yard of Milton Police Station. The only possible scenario beyond calling for assistance from Portland 1 was to have either Constable Foran or Probationary Constable Hevers attend the assault "one out" but such action had been strictly prohibited by the Local Patrol Commander, Chief Inspector Barry Leacy. Directive memoranda and reports to that effect, under the hand of Mr Leacy, are enclosed. Mr Leacy's decree stemmed from his concern, for the safety of his officers. The critical shortage of staff at Lithgow had led to a situation where officers working "one out" were in jeopardy and/or danger." Secondly: "We note your very critical comments that our client was "incapable of understanding the significance of what he was being told particularly when Ms Morrison came to the station and told him that there was another girl missing who was going to the pool. From this information it should have been clear that Alison Lewis may have been in imminent danger". With the greatest of respect, while such a conclusion may recommend itself in retrospect, being seized, as you are of the entire factual circumstances of the matter, including the tragic death of Ms Lewis, our client was not so fortunate. With respect to the first incident, our client had reacted appropriately by adhering to the Commissioner's instructions (safety of station staff vis a vis prisoners and safe custody of those prisoners), the specific directives of his Patrol Commander (Lithgow 1 is not to be worked "one out") and operational procedures by immediately calling another car as he estimated that Portland 1 would be able to respond earlier than Lithgow 1." Thirdly: "We also note your criticism that our client acted inappropriately by not telephoning Mr and Mrs Lewis as, in your view, the call had a "critical investigatory function". Again, that conclusion benefits from being made at a time when the entire situation is known. Senior Constable See did not have that luxury and at the time he made the decision not to call Mr and Mrs Lewis but rather make more inquiries about Alison Lewis at the hospital, he genuinely believed that was the more appropriate course as he did not wish to concern, unnecessarily, the Lewis family. This was not a situation where there was a definite complaint, as with Ms Spillane and Ms Tonkin, that an assault had occurred, rather it was a situation where a young woman was supposed to meet her friends but had not done so. Bearing in mind the casual nature of the intended rendezvous and the rapidity with which such social arrangements may alter, it is not difficult to accept that Constable See did not act inappropriately." Fourthly: "Even should your view of the evidence remain the same, we submit that Constable See, operating within the operational parameters in existence at Lithgow Police Station at that time and incorporating such things as the Commissioner's instructions, Patrol Commander's directions and, most importantly depleted staffing levels, did not act inappropriately. Our client cannot and should not be held responsible for management and staffing decisions made by Senior Police. In the recent past Lithgow Police Station was visited by Deputy Commissioner Jarret in his role as the Commander of North West Region. The visit was partially prompted by the acute shortage of staff at Lithgow Police Station and the effect that staff shortages were having upon the capacity of the Police to provide an adequate Policing service to the community. Of particular concern to the local community, as reflected in articles in the Lithgow Mercury and stories on Prime news, was the dearth of Police performing night duty." Fifthly: "Operational decisions are, by their very nature, made at the time an event is occurring and depend upon information to hand at that time. While reflection upon incidents might allow observers to formulate a better hypothetical response, Constable See did not have that benefit."

[23]

The Ombudsman's report:

The Ombudsman's report is under a cover of a letter dated 20 August 1997 addressed to the presiding officer of each House of Parliament. It lists as the complainant Mr Andrew Tink MP. Mrs Gee, for a reason unknown to me, is no longer stated to be a complainant. The only new evidence which the report cites is that I quoted in [26] above. The gist of the criticism in the report is this: "In my view, any reasonable police officer would have been aware that the matters reported by Mrs Morrison required urgent action and would have acted accordingly. Senior Constable [See] could and should have ensured a more prompt response by police. In light of the serious concerns which had been expressed by Mrs Morrison, there was no satisfactory reason why two police officers could not have been quickly sent to investigate the matter. The breath test and charging of the suspected PCA offender had been completed. All that remained to be done were various administrative procedures, such as dealing with bail and the property of the suspected offender. These could have been performed by one police officer. In the alternative, the handling of the outstanding administrative procedures could have been put on hold while two police attended to the concerns about Alison Lewis' safety. It has not been suggested that the suspected PCA offender was violent or in any way uncooperative. And such a course of action would not have contravened an existing direction by the Lithgow patrol commander that car patrols should always be constituted by two police officers. One step Senior Constable [See] could have taken was to attempt to promptly contact Alison Lewis' parents. Senior Constable [See] refers to having only Alison Lewis' name, whereas Mrs Morrison says she gave him the name and the address. I do not need to conclusively decide this possible conflict in the evidence. Even if Senior Constable [See] had only been given or could only read the name, he could have promptly obtained the address by inquiries with Mrs Morrison or by ringing the hospital and speaking with Melanie and/or Kerry. He could then have obtained the telephone number of Alison Lewis's parents from the telephone book, as Mrs Gee later did at the police station. The call had a critical investigatory function, to find out if Alison was at home or not, and therefore if there was a reason to fear for her safety. I am also prepared to conclude that Senior Constable [See] did not provide any information to Constables B and C about the concerns held for Alison Lewis' safety. Senior Constable A's account includes, at best: 'Q12 Did you convey to Constables B and or C this information regarding Lewis? A As far as I recall I did. But as there was no supporting information at that stage, I requested them to attend the hospital and find more information.' However, according to Constable B, Senior Constable [See] only advised him of 'an assault upon two females which had taken place previously (who) had since been conveyed to Lithgow Hospital'. Constable B also said: 'The first time I had any knowledge of the involvement of a third person as a victim was when I was informed by the victims I spoke to at the hospital'. Constable C said that Constable B told him that they 'had a job at the hospital' about 'a possible sexual assault or an assault on a couple of girls'. He, too, denied that he was aware at the police station that Alison Lewis might be missing and said that his first knowledge of this was obtained at the hospital. In light of that evidence and my general reservations about the adequacy of Senior Constable [See]'s evidence, I am not satisfied that Senior Constable [See] did advise Constables B and C of the concerns for Alison Lewis' safety. I am particularly concerned about the adequacy of the responses which Senior Constable [See] provided on critical issues in seeking to explain his conduct. In my view, Senior Constable [See] has failed to give reasonable account on vital issues relating to his own performance in this matter. In summary, Senior Constable [See]'s handling of the matter and his response during the police investigation raise real questions as to his competence and appreciation of his responsibilities as a police officer. This is not simply a matter involving Senior Constable [See]'s 'inaccurate record keeping' and 'lack of supervisory skill', as suggested by the Police Service. Finally, I must express my concern about the lack of preparedness by the Police Service to appropriately acknowledge the full extent of unsatisfactory conduct by Senior Constable [See] in this matter, as identified by this Office in the discussion above." The first three of the Ombudsman's four recommendations are these (the fourth concerns a communication system problem of no present moment): "1. That the Police Service apologises to the parents of Ms Alison Lewis for the lack of prompt police action. I regard this recommendation as being of real importance. In this respect, the family of Ms Lewis wishes to note that, apart from the problems outlined in this report, the family is of the view that the Police Service properly handled in inquiries into the matter. 2. This Office acknowledges the initiative and bravery shown by Mrs Morrison in this matter. This Office considers that the Police Service should make a similar acknowledgement. 3. That Senior Constable [See]'s conduct be reappraised in view of the concerns discussed in this report."
A copy of this report was provided in advance of its publication to the plaintiff. He received it in a large envelope in his pigeonhole on the muster room of Katoomba Police Station on 14 August 1997. He anticipated what the envelope contained. He dealt with the other paperwork in his pigeonhole and took the report out to read it in the van dock, with a cup of coffee and a cigarette. The plaintiff deposed to his reactions to the report thus: "Q. And did you read it? A. Yes, I did. Q. And how did you react to it? A. Badly. I was hopeful that sense would prevail in the final report and just appeared to be completely ignored. Q. What were you concerned in relation to the content of the document, what concerned you about that? A. Many things but prisoner handling. The ombudsman was critical of me for not doing certain things which from experience you can't do anyway. And it was just so wrong the safe custody. And I'm sure the ombudsman had been involved in deaths in custody and injuries in custody and just seemed to ignore all the advice. I was devastated. Q. How did you perceive your reaction after reading that document to how you'd been previously? A. This was the worst I think. I was just hopeful that it would be reasonable and as I saw it was completely unreasonable. I just couldn't understand how they could do that. Q. What time of the day was this? A. I was on afternoon shift and at Katoomba they don't at that stage they didn't work 12 hour shifts so I would have commenced work at 3pm so it would have been about 4pm or thereabouts when I read it." The plaintiff was unable to continue working. He went to the Blue Mountains hospital. He was seen for triage by a registered nurse at 4.26pm. The nurse recorded this: "Since April a lot of stress, pressure at work. Today further bad news and complaint of anxiety, stress-migraines. Counselling with police force - but not recently." He was seen by the registered medical officer at 4.45pm. The doctor recorded this history: "Stress at work since April '97. Involved in police murder case - some criticism of his actions. Received another condemning report this afternoon [leading to] migraine, stress, lack of concentration etc. so reported sick to Accident and Emergency under care of Dr [sic] Robinson, psychiatrist [sic] [at] Lithgow. Has supply of Valium and Panadeine Forte at home. Also sees Dr Kan, LMO. No alcohol use." The doctor examined the plaintiff. He or she noted 'red eyes' from the plaintiff's having been crying. The plaintiff's mood was objectively anxious. Subjectively the plaintiff described himself as "knocked out". The doctor thought the plaintiff had excellent insight. The diagnosis made was an acute stress reaction. The plaintiff was told to see his LMO and Mr Robinson and was certified as unfit to work for one week.
On the following day, the plaintiff saw his LMO, Dr Siva Kanagaratnam. This gentleman has been almost universally given the moniker of Dr Kan and I trust the doctor will forgive me if I continue this practice. Dr Kan's notes are these: "Involved in a murder case (A Lewis) on 2 March 1997 [leading to] stressed by accusation of police incompetence. Seeing A. Robinson (psychologist). Intermittent periods of stress. Ombudsman report of police handling of case came out yesterday, highly critical of patient's action [leading to] acute stress reaction. Teary/upset/ Not coping with work. [Prescribe] Aropax 20mg. Workers Compensation [certificate for period 14 August to 29 August 1997 (exhibit MM).] Counselling A Robinson. Diagnosis of acute depression and anxiety attack.
The plaintiff was on sick report when the Ombudsman's report was formally published on 20 August 1997. There was media coverage as a result of its publication. Exhibit BBB is a DVD containing the coverage of this matter on the 7pm bulletin of ABC TV news. My Associate made a transcript of it which counsel have agreed is accurate. It is this: "PRESENTER: (00:00) The Police Commissioner took the rare step today of publicly apologising to the family of murdered Lithgow teenager Alison Lewis. Spurred by a damning report from the Ombudsman, Commissioner Peter Ryan has admitted that officers were wrong not to respond faster to the emergency. More than that, the Commissioner said that the police investigation which cleared the officers involved was rushed and produced an incorrect finding. NARRATOR: (00:26) Forty crucial minutes may have been the difference between life and death for nineteen year old Alison Lewis. That's how long it took for Lithgow Police to respond to a report she was alone in a park where two of her friends had already been assaulted, one seriously. Alison's naked body was later found, partially buried in a sandpit. COMMISSIONER RYAN: (00:45) I'm embarrassed on behalf of the Service. We could have acted better and I'm apologising for the fact we didn't act better. NARRATOR: (00:52) It was State Ombudsman Irene Moss who instructed the Police Commissioner to make the apology after rejecting the official police explanation which cited poor recordkeeping and staffing problems. OMBUDSMAN MOSS: (01:03) That is almost laughable. I mean the deficiencies are much more serious … NARRATOR: (01:10) The State Ombudsman describes the way police handled the incident as disappointing and inept. The criticism extending to the police's own internal investigation into the matter which initially cleared the officers involved of any wrongdoing. (01:23) Commissioner Ryan admits the internal investigation was seriously flawed. COMMISSIONER RYAN: (01:27) [Indiscernible] … It was rushed, we were under enormous pressure to come up with a response. JOHN HANNAFORD: (01:31) This report indicates that the police culture hasn't changed. It clearly indicates that where the police have stuffed up they try to cover up. NARRATOR: (01:41) A view shared today by the dead girl's parents. PAT LEWIS: (01:44) I think there may have been … a cover up really but it was … that they were just too complacent on the night. NARRATOR: (01:53) Disciplinary action against the officers involved is now under review. The man charged with the murder, twenty-two year old Jay William Short will stand trial in the Supreme Court on a date still to be fixed." I believe it appropriate to note that one would expect even more critical (of the plaintiff) coverage on other media platforms.
The plaintiff did not take this media coverage well. He sought permission from the Police Welfare Branch to leave his home at Lithgow, to leave the Lithgow area and to move his whole family to his parents' residence at Lake Macquarie. He went on to say this in evidence. "Q. Why did you do that? A. Just to get away. Q. Get away from what? A. Get away from everyone who knew me, and, yes, I would have been, sorry, I wouldn't have left the next day, it was after the ombudsman's report went on national TV. Q. Do you recall how soon after you received your copy of the ombudsman's report that, to use your words, it went on national TV? A. I think it was that night, or the next day, very soon. Q. And when you say it went on national TV, what did you in fact see? A. I clearly remember a press conference with Irene Moss, State Ombudsman and Peter Ryan, the Commissioner of Police. I recall Irene Moss saying there's no reason why police couldn't have left that prisoner in the cell and dealt with him later. Of course, there's a reason why we couldn't do that. I recall Commissioner Peter Ryan there, I don't recall too much of what he said, I just remember the ombudsman saying that. And soon after that, I received a phone call from my sister at Lake Macquarie saying she'd just seen my name on national TV, and soon after that, a phone call from my friend in Adelaide, saying I just saw your name on national TV, tell me about. I just said, I can't talk about it. Q. So, did you tell the Court that within a short time of seeing that on television, the press conference, that you and your family went to Lake Macquarie? A. Yes. Q. Can I ask you then, using going to Lake Macquarie as fixing your mind on, how were you then, psychologically? A. I was terrible. The massive headaches were back, very depressed, very anxious, I was really anxious as to what could happen next. Q. What else? A. No sleep, I couldn't eat. And I really tried hard to put on a good front for my children's sake. It was hard. Q. When you said you were anxious and you used the words "what could happen next" did you think about what was going to happen next? A. I just thought everything's going bad what else can happen, I had no idea. Q. Did those feelings and those symptoms stay with you after you went to Lake Macquarie? A. Yes. Q. Did they get better, get worse, or stay the same? A. It was good to be away, and I could get out, I could take my family out to the shops and no one knew who I was. And so it was helpful to get away." Before he moved to Lake Macquarie on 21 August, the plaintiff saw Dr Kan. The doctor's contemporaneous notes are these: "Very agitated with panic/anxiety attacks today following release of Ombudsman's report and COP's response to the report. Patient feels this report and Commissioner's response goes against everything he has been taught and instructed as a police officer in the past." Dr Kan reiterated the treatment prescribed on 15 August.
On 26 August, the plaintiff received a telephone call from Super Percy, the Patrol Commander at Katoomba. The plaintiff and his family were still at Lake Macquarie. The plaintiff was advised that he had to attend Police Headquarters on 29 August, despite his being on sick report. Before attending Police Headquarters the plaintiff returned to his home in Lithgow, the plaintiff thought to visit his LMO but also to gather documents to take with him to Police Headquarters. They were 'documents from the Safe Custody course and Critical Issues in Policing' that he believed supported his position and contradicted the Ombudsman, "all the danger signals and anything to do with custody and the time frames, the age range and all the facts and figures and details to actually prove it."
On 29 August, the plaintiff was driven to the Police Headquarters in College Street, Sydney by his father-in-law. He was also accompanied by his father. The plaintiff did not drive himself as he had taken Valium. Shortly after the plaintiff arrived on the ground floor of the Headquarters he was met by AC Adams. The plaintiff's evidence then continued: "… And so we went up in the lift and I remember him saying just after he got in the lift, he said, "I can't understand why you didn't just lock him away and forget about him, we used to do that all the time in the bush." That's maybe you could years ago but not since the Royal Commission into Aboriginal Deaths in Custody. I didn't reply to him because I just thought I'm not up to date with the current procedures. He then made me a cup of coffee. Q. So that conversation you had with Mr Adams was that in a lift going up or in an office or A. No, it was just walking from the lift to Deputy Commissioner Lawson's office. Q. And this is on the 11th floor of the headquarters is it? A. Yes. We were outside her office and he made me a cup of coffee. I was feeling very uptight. I took another Valium with that coffee and waited. I didn't talk much to Assistant Commissioner Adams because of that comment he made. And after some time he took me into Deputy Commissioner Lawson's office and we just sat down there and it was just Assistant Commissioner Adams, myself and Deputy Commissioner Lawson. Q. Before you go any further, had you met Assistant Commissioner Adams previously? A. No. Q. Had you met Deputy Commissioner Lawson previously? A. No. Q. Had you ever been in a command where either one of those have been superior to you in rank? A. No. Q. Yeah, go on, please. A. And she said to me there was a lot of conversation, I can't remember all of it. I remember her saying to me, "He was just a PCA, why didn't you lock him away and forget about him?" And I said: "I have all the facts and figures here, all the statistics from university, I'll show them to you if you want. He was affected by alcohol, he's within the age range where they self harm and suicide. He's affected by alcohol which goes without saying and his reply to why were you drinking and driving was, 'Bloody women,' which indicates straight away relationship problems which has a much higher risk." She just said, "Apart from the relationship problems he's just a PCA. There's still no reason why you couldn't have just locked him away and forgotten about him." And she refused to see any of my documentation, statistics. I'm not sure what other conversation there was. This one really sticks in my mind and she said the managerial counselling Q. Just before, I'll stop you there. Was there conversation about one police officer attending? A. I think there may have been but we couldn't do that because of the directive from Inspector Leacy. You couldn't work one out at night. And I asked her about is, "What you're suggesting I do is contrary to all the Commissioner's instructions about safe custody." And her reply was, "The Commissioner's instructions are only guidelines, you don't worry about them." It was at that point I gave up arguing or trying to make any sense of my case. That's when she said she's going to engross first, sorry. She said, I could either accept a serious reprimand and do it the way she's agreed that I should have done it the way the ombudsman said, or, if I still say I did it right, contrary to the ombudsman, she'll arrange a 181D dismissal. I didn't have a choice. It's all I've done since school, had a family to support, so I opted for the serious reprimand. Q. Did Ms Lawson tell you that you were receiving a serious reprimand? A. Yes, she said serious reprimand, and it would appear on my service register. Q. What happened after that? A. I said the last thing on my service register is a bravery award, so hopefully they'll cancel each other out. Q. And after that, what happened? A. I left and … Q. Where did you go? A. Well I immediately went downstairs and met my father and father in law, and they asked me how it went. I said not well. Then I went home again. Q. And after that meeting, how were you feeling? A. I was really down before, and that just, that was just the final straw. I was feeling lousy. I was depressed, and anxious, cause, as I said before, what else could go wrong, what on top of this can go wrong, getting worse and worse. So, yes, the crying, everything just came back, just even worse. Massive headaches, but not in the gap that wouldn't go. I was grinding my teeth in my sleep, waking my wife up. When I was at my parents' house, the kids would hear it and they copied it, and I heard them grinding their teeth, terrible." Unfortunately, by April 2002 DC Lawson had died (T119.26). I have only two sources for what passed between DC Lawson and the plaintiff on 29 August, the plaintiff's evidence and a report dated 10 September 1997 made by DC Lawson and initialled as read by the COP himself on 15 September 1997. The plaintiff said he had made an almost contemporaneous account of this meeting and sent it to the Police Association representative at Katoomba, Darren Middlebrook, but he had lost his copy of the document. No attempt was made by any curial process to obtain the Police Association's copy, if it still had it.
DC Lawson's report of 10 September 1997 is in response to the Ombudsman's Report concerning the current matter. Its substance is this: "On Monday 25 August 1997, I visited Mr and Mrs Lewis at Lithgow and in their home extended a sincere apology on behalf of the New South Wales Police Service for not having provided a more prompt response to a report of females assaulted in the park adjacent to the Lithgow Pool and the possibility of a third female being at risk. I indicated openly to Mr and Mrs Lewis that we, the Police Service, could have done better and that we have learned by this unfortunate incident. Mr and Mrs Lewis were naturally upset but nonetheless received me warmly and thanked me. I then visited the home of Ms Barbara Morrison, the taxi driver who assisted the two victims, Melanie Spillane and Kerry Tonkin, and in the presence of her sister, I thanked her for her actions on the early morning of 2 March 1997, which undoubtedly saved at least the second victim, Kerry Tonkin from more serious injury. I indicated that I felt she had, in the interests of citizen safety, placed herself at some risk. I also acknowledged her persistence with this case which has subsequently been a salutary lesson for the Police Service. On Friday 29 August 1997, Region Commander Adams presented Senior Constable See to my office where I walked him through the incident and discussed all the options which were available to him at the time and upon which to make his decisions. He admitted that he made an error of judgment in not giving greater consideration to the information supplied by Mrs Morrison when she reported that a third female was at risk. The Senior Constable was obviously distressed by this incident and recognised that he should have deployed the response car more promptly. Having consideration for the seriousness of the incident and the fact that the Senior Constable had been previously counselled for inadequate record keeping and subsequently transferred to a larger Local Command (Katoomba) where closer supervision was provided, I determined that the level of management action appropriate to this case had to be elevated. I reprimanded Senior Constable See in the strongest terms for his lack of empathy and caring in these circumstances and re-enforced with him the need to give first consideration to his sworn duty of 'protection of life and property' and that in future his response to community needs must be first driven by this principle. I also indicated that Region Commander Adams would monitor his performance at Katoomba and I also expected to see significant improvement in that regard. Senior Constable See gave an assurance of this and indicated that this had been an enormously stressful and yet steep learning curve for him. I have spoken with Superintendent O'Neill regarding his report in response to the Ombudsman's draft report and indicated that future investigation reports should be expressed objectively and give consideration to all possible decisions which could have been made at the time, rather than subjectively being persuaded towards a Police point of view. I am satisfied that neither Constables Foran nor Hevers was aware of a third person being involved until they attended the Lithgow Hospital at 4.19am on 2 March 1997. I am, however, not satisfied with Constable Foran's claim that he was unable to recall [Mrs] Morrison attending the station. I have written to Constable Foran advising him that on the balance of information available I accept that he was the first officer to whom Ms Morrison spoke. On the morning of 25 August 1997, I also addressed all available staff from Lithgow/Portland/Wallerawang Stations (approximately 18 staff in total) expressing the view that 'we could have done better' and sought their co-operation in providing appropriate responses to community calls for assistance." DC Lawson also prepared a letter to pass under the hand of the then Minister of Police, the Hon. Paul Whelan MLA addressed to the Ombudsman outlining the response to the NSWPF to her report of 20 August 1997.

[24]

Irregularity

Counsel addressed me about the interaction of the Ombudsman Act 1974 and the Police Act 1990. I was provided with a copy of the Ombudsman Act 1974 reprinted as at 10 April 1997 and the Police Service Act 1990 (as it was then called) as in force at 2 January 1997 (including all amendments up to Act No 121 of 1996), in order that I have the Acts as close as could be to relevant times. The Ombudsman's Report of 20 August 1997 purports to have been made pursuant to s 31 of the Ombudsman Act and the covering letter draws the attention of the Presiding Members of the Houses of Parliament to section 31AA(2). That subsection at the relevant time provided this: "If a report includes a recommendation by the Ombudsman that the report be made public forthwith, the Presiding Officer of a House of Parliament may make it public whether or not that House is in session and whether or not the report has been laid before the House." The covering letter did request that the report be publicised forthwith. That obviously occurred.
However, the Ombudsman's' power did not appear to me to arise under s 31. Section 21 commenced thus: "Right to Complain (1) Subject to this section, any person (including a public authority) may complain to the Ombudsman about the conduct of a public authority unless: (a) the conduct is of a class described in Schedule 1, …" Schedule 1, clause 14 was this: "Conduct of a police officer when exercising the functions of a police officer with respect to crime and the preservation of the peace." Section 13(1) was this: "Where it appears to the Ombudsman that any conduct of a public authority about which a complaint has been made under section 12 may be conduct referred to in section 26, the Ombudsman may, whether or not any person has complained to the Ombudsman about the conduct, make the conduct the subject of an investigation under this Act." Part 4 of the Act was headed "Reports". It commenced with s 25A and concluded with s 31AB. Accordingly, s 31 was within Part 4. Section 25A provided: "This part, section 29 excepted, does not apply to or in respect of the investigation under this Act of police conduct." "Police conduct" was defined in s 5(1) to mean "conduct of a police officer within of Part 8A of the Police Service Act 1990." Section 29 of the Ombudsman Act merely provided for the provision to complainants of reports made by the Ombudsman. This analysis leads me to the view that the Ombudsman did not have power to investigate a complaint about the plaintiff and his colleagues under the Ombudsman Act 1974 or to make a report under that Act. The Ombudsman's powers must be found in the then Police Service Act 1990.

[25]

Power to investigate police conduct

Part 8A of the PA at the relevant time commenced with section 121 and concluded with s 172D. The scheme established appears complex but that is because there are many ways in which a complaint may be made against a police officer and three investigatory bodies: COP, the Ombudsman and the Police Integrity Commission ("PIC"). Police "conduct" was defined very broadly in s 121 to mean "any action or inaction (or alleged action or inaction) of a police officer." Section 127 provided that a copy of any complaint received by COP be sent to either PIC, if it were grave enough ("Category 1") or to the Ombudsman if it were within a class which the COP and Ombudsman had agreed did not require such notification. Division 5 of Part 8A provided for the investigation of complaints by COP and the Ombudsman. Section 144 provided for the Ombudsman to monitor investigations conducted by COP. Section 147 provided this: "147 Report etc to be sent to Ombudsman (1) The Commissioner must, as soon as practicable after being satisfied that an investigation has been concluded and a report of the investigation has been finalised: (a) send to the Ombudsman a copy of the finalised report and copies of all statements taken in the course of the investigation and of all other documents on which the report is based, and (b) provide the Ombudsman with such comments on the report and statements as the Commissioner thinks fit, and (c) specify what action should, in the opinion of the Commissioner, be taken as a result of the investigation. (2) After receiving that material and information, the Ombudsman may require the Commissioner and any police officer who investigated the complaint to provide such additional information as the Ombudsman considers is necessary to enable the Ombudsman to determine whether the complaint was properly investigated."
The following provisions should also be noted: "151 Further investigation if Ombudsman not satisfied about conduct of investigation (1) If, after receiving the material and information referred to in section 147, the Ombudsman is not satisfied that a complaint was properly investigated under this Division, the Ombudsman may advise the Commissioner accordingly, specifying what are, in his or her opinion, the deficiencies in the investigation. (2) The Commissioner is, on receipt of the Ombudsman's advice, and if required to do so, to cause a further investigation to be conducted in order to remedy the deficiencies referred to in the advice. (3) The further investigation is to be conducted within such period (if any) as the Ombudsman specifies. (4) This Division (including this section, but excluding sections 140A, 141, 141A and 141B) applies to and in respect of a further investigation under this section in the same way as it applies to an initial investigation. 152 Further consideration if Ombudsman not satisfied about outcome of investigation (1) If, after receiving the material and information referred to in section 147, the Ombudsman is not satisfied with the outcome of an investigation (whether because of the quality of the investigation or report or for any other reason), the Ombudsman may request the Commissioner to reconsider the action that the Commissioner proposes should be taken as a result of the investigation. (2) If the Ombudsman makes such a request, the Commissioner may revise the police report or may decide not to alter it. (3) Instead of or in addition to making such a request, or after consideration of a revised police report, the Ombudsman may prepare a report that contains such of the matters referred to in section 156 (1) (a)-(e) as appear to the Ombudsman to be relevant. (4) The Ombudsman is to provide a copy of the report under subsection (3) to: (a) the complainant (if identified), and (b) the Minister, and (c) the Commissioner. (5) The Commissioner is then to provide a copy of the report under subsection (3) to the police officer whose conduct was the subject of the complaint. (6) The issue may be the subject of a special report to Parliament by the Ombudsman under section 161. 153 Investigation under Ombudsman Act 1974 (1) The Ombudsman may, if satisfied that it is in the public interest to do so, make a complaint, any investigation of the complaint, and any related issues, the subject of an investigation under the Ombudsman Act 1974. (2) The Ombudsman may act under this section before the commencement of an investigation under this Division, during the progress of any such investigation or after the consideration by the Ombudsman of a report by the Commissioner under section 147 or 151. (3) The Ombudsman must notify the Commissioner of any action under this section. (4) On being so notified, the Commissioner is to discontinue any investigation under this Division. (5) This section has effect despite anything to the contrary in this Part. 156 Report following Ombudsman's investigation (1) The Ombudsman must, at the conclusion of an investigation under the Ombudsman Act 1974 of a complaint, prepare a report that: (a) gives appropriate details of the investigation, and (b) states the result of the investigation, including any adverse findings against any police officer, and (c) recommends the appropriate action to be taken (where relevant): (i) to correct unacceptable conduct, or (ii) to prevent a recurrence of unacceptable conduct, or (iii) to punish unacceptable conduct, and (d) identifies any unsatisfactory aspects of any report into the complaint prepared by a police officer under this Part, and (e) includes any other comments that the Ombudsman considers appropriate. (2) The Ombudsman is provide a copy of the report to: (a) the complainant (if identified), and (b) the Minister, and (c) the Commissioner. (3) The Commissioner is then to provide a copy of the report to the police officer whose conduct was the subject of a complaint. 157 Recommendation in report under section 156 In a report under s 156, the Ombudsman may (where relevant) recommend: (a) that the conduct to which it relates be considered or reconsidered by the police officer whose conduct it was, or by any person in a position to supervise or direct that police officer in relation to the conduct or to review, rectify, mitigate or change the conduct or its consequences, or (b) that action be taken to rectify, mitigate or change the conduct or its consequences, or (c) that reasons be given for the conduct, or (d) that any law of practice relating to the conduct be changed, or (e) that any other action be taken. 158 Notification of proposed action on reports (1) The Commissioner must, as soon as practicable after receiving a report under this Division, notify the Ombudsman of the nature of the action (if any) proposed to be taken by the Commissioner as a result of the report. (2) The nature of the action that the Commissioner may propose in the notification includes: (a) that the police officer be admonished, or (b) that a departmental charge be preferred against the police officer, or (c) that consideration be given to the police officer being charged with a criminal offence. The notification may contain particulars of any penalty proposed to be imposed. (3) Where the Ombudsman has given a copy of a report under section 156 to the Commissioner and the Ombudsman is of the opinion: (a) that the Commissioner has unreasonably delayed notifying the Ombudsman under this section with respect to the report, or (b) that the nature of the proposed action notified under this section by the Commissioner is, in the circumstances of the case, unreasonable or inadequate, or (c) that the Commissioner has unreasonably delayed taking action as a result of the report, The Ombudsman is to advise the Commissioner accordingly by notice in writing served on the Commissioner. (4) If the Ombudsman and the Commissioner do not, within 28 days, resolve any issue the subject of a notice under subsection (3), either or both of them may notify the Minister that the issue is unresolved. The issue may be the subject of a special report to Parliament by the Ombudsman under section 161. 159 Notification of action taken on report (1) The Commissioner must, as soon as practicable after taking action as the result of a report under this Division (being action with respect to a police officer whose conduct is the subject of a complaint), notify the Ombudsman of the nature of the action so taken. (2) The notification must, if the action taken consists of or includes the imposition of a penalty, contain particulars of the nature and quantum of the penalty imposed. (3) The Ombudsman is to determine whether, in the circumstances of the case, action so notified was, in the opinion of the Ombudsman: (a) appropriate, and (b) taken within a reasonable time. 160 Report to complainant The Ombudsman may from time to time report to the complainant (if identified) on the progress of an investigation under Division 5 into a complaint. 161 Special report to Parliament (1) The Ombudsman may, at any time, make a special report to the Presiding Officer of each House of Parliament and must also provide the Minister with a copy of the report on any matter arising in connection with the exercise of his or her functions under this Part. (2) The Ombudsman may include in such a report a recommendation that the report be made public as soon as practicable."
The evidence before me does not establish a report by COP to the Ombudsman, complying with s 147. Rather, the evidence tells me that the Ombudsman had to request the police investigation papers from the NSWPF. The Ombudsman conducted her own investigations in addition to those conducted by the NSWPF. There was no compliance with section 151, and no mere reconsideration pursuant to s 152. It appears to me that, in effect, the Ombudsman must be seen as proceeding under s 153 and her report must be seen as being a "special report to Parliament" under s 161. It should be noted that pursuant to ss 158 and 161 that any impasse reached between COP and the Ombudsman was left for Ministerial and Parliamentary consideration. To put this last proposition in very blunt, brutal terms, such an impasse would be either directly or indirectly resolved by the political process, swayed, as it often is, by public opinion or the media's perception of that opinion.

[26]

DC Lawson's actions

One can appreciate the position in which the then COP, Mr Peter Ryan, was when the Ombudsman's report was published. Until then he had publically supported (on 17 March 1997) the findings and recommendations made by Super O'Neill endorsed by Ch Super D S Graham and supported by Ch Super Shears. Nevertheless there had been continuing criticism and now the Ombudsman's report. Whatever the merits of his decision, I can understand the strain he must have felt, the need to resolve the matter without a potential imbroglio and the need to retain the public's respect and support for the NSWPF. Once the COP had decided to acquiesce to the Ombudsman's recommendations, then the actions taken by DC Lawson were inevitable. There would have been no possibility of her hearing the plaintiff's arguments as to why he had done nothing that could be criticised and herself deciding the matter de novo in the plaintiff's favour. The die had been cast by COP on 20 August 1997. In these circumstances I can accept that DC Lawson may have been unwilling to hear the plaintiff's case, to have given him "short shrift" although the plaintiff was not being absolved. I can readily accept that this was a very unhappy event for the plaintiff, leaving him with a sense of grievance. Whether there were a threat of a s181D dismissal is another question, one which I do not need to decide. However, the plaintiff did mention such a threat to Dr Tony Mastroianni under whose care he came on 12 January 1998.
The evidence which I quoted in [67] above was given in 23 February 2015. The plaintiff give further evidence about his interview with DC Lawson on the following morning: "Q. You told his Honour late yesterday afternoon about being before the Deputy Commissioner on 29 August 1997 and in fact you related a conversation that you and the Deputy Commissioner had at the time? A. Yes. Q. You now tell his Honour that you remember more of the conversation? A. Yes. Q. Do you want to relate that please? A. Soon after the introductions and when we sat down, Deputy Commissioner Lawson said to me that -- he said, "We find generally that police with your amount of service don't care." I was very upset by this remark and HIS HONOUR Q. "Police with your amount of service don't care."? A. Don't care. I was very upset by this remark and I said don't you dare tell me I don't care. You won't find many people who care more than I do and it was the end of that subject. During the discussions I said to her how does what you're suggesting I should have done on that night differ from what happened at Port Macquarie only a few months earlier in November last year when a prisoner died in custody? She said, "In that case all the police left." I said so the prisoner was the only person in the police station and she said, "Yes." I said, sorry, I wasn't aware of that, didn't mention that anymore. When she suggested that the prisoner should be put away and dealt with by the next shift, I asked her how does the words of the judge in the High Court of Australia in the Williams case affect this matter, where the judge said, "Any detention that does not involve bringing the person before the next available magistrate is unlawful and therefore actionable." She replied to that one, "That's not relevant." The plaintiff said that after the interview he made further inquiries about the Port Macquarie death in custody. He received from the Coroner's Office a coronial report about that case. He gave this evidence on that subject: "… it would appear from that, that the deputy Commissioner had been mistaken; untruthful or wrong in that case. It still hadn't solved my question on how what I did was wrong, and Port Macquarie as wrong. They can't both be wrong in my view and I felt unjustly dealt with and I just couldn't get it from my mind, so I was down." In exhibit BB, p 18, part of a report made by the plaintiff on 29 April 2009 as a part of a claim for hurt on duty benefits, the plaintiff said this: "Some time later I obtained a copy of the Coroners summing up in relation to the death in custody at Port Macquarie which I had previously mentioned to the Deputy Commissioner. I found that the Deputy Commissioner had not been truthful. The police involved in that incident were severely criticised by the Coroner for not complying with Commissioner's Instructions in relation to custody procedures." It was not suggested to the plaintiff that either there was no such death in custody or that he had not obtained the coronial report or that he misrepresented that report. In these circumstances I accept that the plaintiff did raise this "precedent" with DC Lawson and that in some fashion she dismissed its significance. This has lead the plaintiff to believe that she was untruthful and even to allegations of corruption, but I treat such allegations with extreme circumspection and leave them to one side.

[27]

Treatment and return to work

The plaintiff saw Dr Kan again on 1 September 1997, the following Monday. The doctor noted "still stressed/depressed. Not coping." He provided the plaintiff with another certificate establishing unfitness for work until 19 September 1997. On the following day he saw Mr Robinson and completed a Symptom Inventory Checklist, based on which he diagnosed a Severe Adjustment Disorder with Mixed Anxiety and Depressed Mood. He expressed his prognosis: "I believe SC See's prospects for a full recovery are good. This is not a guaranteed outcome however, and anything that can be done to minimise his ordeal should be done. The longer the difficulties he is exposed to last, the greater the chance of long term consequences for his mental health." Unfortunately, the plaintiff's future career in the NSWPF brought him constant reminders of the difficulties though which he had travelled this far.
The plaintiff saw Dr Kan again on 16 September and obtained another certificate, certifying total incapacity until 21 September 1997 and partial incapacity thereafter until 22 October 1997. On 19 September the plaintiff was visited at his home by a PMO, Dr Janne Seletto. The doctor was accompanied by Sgt Ross Signorelli of the Police Welfare Branch. Although the plaintiff was still symptomatic he was keen to return to work. Dr Seletto thought that the plaintiff was fit to return to work on restricted duties. The restrictions proposed were: 1. Station duties only 2. Only to work day shift 3. No first response 4. Not to deal with prisoners/intoxicated persons 5. No contact with members of the public 6. Not to work alone at the station 7. May wear uniform outside of police station 8. May drive marked police vehicles. Initially it was proposed that the plaintiff work 5 hours per day, 4 days per week. The plaintiff returned to work on this regime on 23 September 1997. Eventually the plaintiff returned to working 8 hour shifts and a normal number of hours per week. However, in essence, he remained on some form of restricted duties till his medical discharge on 19 August 2010.

[28]

Further HOD claim

On 19 September 1997, the plaintiff made a claim for police HOD benefits. He provided as the date of his injury 14 August 1997, the day he received the Ombudsman's report. On page 3 of Form P124 the plaintiff provided these comments: "On 2 March 1997 an incident occurred involving the murder of a young woman in Lithgow. As supervising officer on that night I have maintained and continue to maintain that I acted in good faith and in accordance with police instructions when dealing on that night. I have been subjected to numerous investigations. Unfortunately an ombudsman's report suggested that I should have prioritised my work differently which would have allowed a more rapid response. It is my contention however that to follow the Ombudsman's recommendations would be to contravene police instructions, ignoring both the findings and the recommendations of the Royal Commission into Aboriginal Deaths in Custody. Having studied these reports and attained qualifications in this field I could not in good faith ignore this information. I am now feeling uncertain as to how to respond and am anxious that even if I follow proper procedure it may be perceived as incorrect. I have found it necessary to consult with a clinical psychologist and have been prescribed medication to assist me to cope with the circumstances and recommendations I perceive as unjust. Note: This incident has been widely publicised in the media for the last six months with my name appearing on Nationwide television which has also been a cause of great anxiety and depression for not only myself but my family. I have medical documentation noting the effect on my wife. All of this has been as a result of my participation in a work related incident. Symptoms I have presented are:- Severe headaches, nightmares, sleeplessness, shaking, nausea, facial spasms, less able to cope with loud noises, isolating from public, unable to watch news or listen to radio, loss of libido, knot in the gut, feelings of tearfulness, occasional memory loss - long & short term, subconscious fidgeting, lack of appetite & weight loss, giddiness." At some stage, the defendant denied liability for further HOD benefits. When that occurred I do not know. A further claim was also made 10 April 2002, as well as one 24 September 2009 shortly after the plaintiff last physically served as a police officer, but there was then litigation pending between the parties in GREAT over HOD matters. However, a history recorded by Dr Mastroianni, which I shall quote soon, strongly suggests that liability for HOD benefits was declined for this claim.

[29]

1998 to 2008

During this period there were a few developments, intermittent treatment and a number of medical opinions. On 5 January 1998 Dr Kan referred the plaintiff to Dr Tony Mastroianni, a psychiatrist at St Leonards. Dr Mastroianni first saw the plaintiff on 12 January 1998 and remained under his care until November 1999. Dr Mastroianni's first report to Dr Kan was made on 24 March 1998, after at least seven consultations. That report contains these observations: "Mr See presented as a well kempt, well spoken man who was pleasant and co-operative. His mood was anxious and depressed, and is affect (the external expression of his mood) was highly anxious. His speech was of normal rate. His ideas flowed logically and sequentially, with no evidence of psychosis. His thought content was preoccupied with describing his resentment about the perceived injustice of his treatment by police, the Ombudsman, the media and the Workers' Compensation Board. His thoughts were otherwise of negative themes concerning his negative view of his future job prospects, his mistrust of the Police Service, and pessimism concerning his functioning and wellbeing. Mr See has a diagnosis of Chronic Adjustment Disorder with depressed and anxious mood. This disorder is in response to the ongoing abovementioned stressors. To understand his presentation, one needs to consider that Mr See is a man with a premorbid personality of being a perfectionist with high expectations of himself and others and a need to please others. As a result, he has found it extremely difficult to cope with the perceived unfair criticism of his duties (which he believes he performed to the highest police standard and regulations). The resultant anger from his perceived injustice has caused significant personal distress, anxiety and somatisation of his emotional suffering. I took the liberty of adding the antidepressant medication, Sinequan 25 mg tds, to the Zoloft 100mg man already prescribed by you. Intensive cognitive therapy to assess underlying unresolved issues such as his expectations, rigid thinking style and alternative career path planning have assisted the medications in improving his symptoms over recent weeks. He has now been unable to reduce the Sinequan to 25mg daily. It would be appropriate for Mr See to recommence his public work duties to help desensitise him from the anxiety surrounding those activities which he has avoided due to fear of criticism over the past six months." Dr Mastroianni's observation of the plaintiff's "rigid thinking style" is apt and is mirrored in comments by other medical practitioners.
Dr Mastroianni prepared a report dated 6 April 2005 about his treatment of the plaintiff over this two year period. After recording the plaintiff's history the doctor said: "In his capacity as a Police Officer, Snr. Constable See was unable to publicly dispute the biased media frenzy that portrayed the missing girl's death as Snr. Constable See's fault. He described the onset of nightmares in which he relived his traumatic interview with the Deputy Police Commissioner, as well as the Ombudsman's and other identities' damning television interviews about his alleged negligence (which he strongly disputes). Despite the good social support from his wife, family, work, colleagues and the Police Association, Snr. Constable became depressed in mood and suffered reduced energy and interest in all his usual activities. His thought content was preoccupied with ruminations about the negative consequences to his family and his career. He perceived that through no fault of his own, the system he had served so conscientiously had turned against him to appease the media. He believed that all his hard work as a policeman and at university would still result in failure of his own and his wife's expectations for a successful career in the Police Force." The doctor then described how the plaintiff came to see him, his earlier treatment and work regime in February 1998 and then the report continues thus, outlining developments in 1999: "Unfortunately, the Police Department's alleged refusal to accept his illness as being work-related served only to escalate Snr. Constable See's anxiety symptoms. Feeling compelled to remain at work or else lose his pension entitlements and being prohibited from working with a government agency again, he persevered working throughout 1998 and 1999 despite his ongoing distress. Therapy was aimed at addressing his fears and teaching him strategies to contain his anxiety. He remained avoidant of returning to fulltime work until November 1998 because of his fears of being exposed to future criticism or reprimand irrespective of how meticulously he would carry out his police duties. He described several incidences to me when he over-reacted to calls regarding missing persons during late 1998, one of which he delegated to a colleague because he had become overwhelmed with distress and left for home early. Although Snr. Constable See's anxiety symptoms appeared manageable during 1999, they were largely kept so due to his medications. In January 1999, he reported to me how his dreams and reliving of experiences with the Deputy Police Commissioner had recurred when he trialled himself off the Neulactil tranquilising medication. He remained distressed that the negative media attention and his own psychological distress had severely impacted on his family. His wife had also become depressed by these events and reportedly required anti-depressant medication. He also informed me that his son's stutter had significantly deteriorated since March 1997 in tandem with his parents' ongoing distress. Socially, the negative reaction of local townsfolk resulted in he and his family no longer attending their local church, to avoid any possible negative reactions. Financially, the lack of shift work and penalty rate income necessitated Snr. Constable See working longer hours in a second job selling computers. He did not report problems with anxiety, concentration, motivation or interest when undertaking his computer sales work, nor did he experience such symptoms when socialising with his family on weekends. Snr. Constable See's headaches and abdominal symptoms escalated by September 1999 after he was reportedly found medically unfit and was earmarked for discharge from the Police Force. He told me that the rationale was that he was not progressing with rehabilitation. Again, he was frustrated and angered at this perceived unfair dismissal because the rehabilitation was not being provided and besides Katoomba Police reportedly wanted him to stay on at their station. We discussed his options to contest his dismissal through the correct channels rather than becoming demoralised and overwhelmed once more (as he had experienced during 1997 and 1998). I last reviewed Snr. Constable See in November 1999 when he informed me that he was not going to be dismissed and, in fact, was due to commence fulltime duties in early 2000. He had been able to sufficiently contain his anxiety to enable him to go out with a car crew up to two days per week. His psychological distress had significantly ameliorated. As a result, it was mutually decided that his psychiatric care could be handled back over to his general practitioner who could seek the assistance of a local psychiatrist if required (rather than travelling to Sydney to see me). I have neither assessed nor heard about Snr. Constable See's progress or otherwise since November 1999."
Dr Mastroianni diagnosed Chronic Adjustment Disorder with Anxiety and Depressed Mood. He expressed the view that the Disorder was precipitated and perpetuated by seven "chronic work-related stressors": "(1) The media reaction and perceived unjust criticism received immediately following the death of the missing girl. (2) The Ombudsman's preliminary and final reports which were critical of his handling of the missing girl's case. Snr. Constable See perceives this criticism as unjust and against the police regulations that he was taught at university and in a past Ombudsman's report recommendations. (3) Perceived unjust interview of him and ultimatum by the Deputy Police Commissioner in 1997. (4) The ongoing lack of validation by the Police Department and especially its rejection of his HOD claim. (5) His service reprimand which he perceives as being unjust and designed to appease the media. (6) The effect of the above stressors on himself and his family, especially his wife and son. (7) The financial restrictions caused by lack of shift work and penalty rate payments, as well as the constant threat that he would lose all his pension entitlements if he was medically discharged prior to his 20 years of service."
The plaintiff saw Dr James Maguire for the defendant on 1 February 1999. Dr Maguire expressed this opinion: "Senior Constable See developed an episode on acute anxiety which could be termed a brief "adjustment disorder" from 7 March 1997 as a result of the intense media scrutiny of his actions on the night of 2 March 1997, compounded by his perception of a lack of support by fellow officers at the time. However, the more significant range of symptoms which I would describe as an Adjustment Disorder with anxiety and depressed mood developed in August 1997 directly in response to the Ombudsman's report, which was very critical of his actions, and the media attention which included having his name highlighted on the television programme 'A Current Affair'. Senior Constable See's disorder was further aggravated by his interview with the Deputy Police Commissioner whose approach to him and these events he found threatening and demoralising. I do not believe his disorder related to him being transferred nor was it a specific reaction to being counselled over the telephone entries. However, I believe Senior Constable See's disorder has been prolonged by the rejection of his HOD claim since in his mind he was carrying out his duties on the basis of regulations as he understood them at the time. I have read the extracts from the Commissioner's press conference and it would appear to me that the Commissioner's statements are consistent with the beliefs expressed by Senior Constable See. I do not believe there are any personal or private matters that have played a part in Senior Constable See's disorder. While he continues to have symptoms I believe they are being adequately controlled by medication since they do not interfere with his ability to carry out his current duties nor do they interfere with his interpersonal relationships, his ability to participate in a number of pleasurable and recreational activities and his ability to do some part time work in a computer business. Since Senior Constable See's emotional disorder followed directly on his involvement in the incident on 2 March 1997 when he was working as a police officer it would appear to me that the disorder has been brought about as a result of his employment as a police officer. However, at the end of the day this remains a legal question rather than a medical one. I agree with Dr Kanagaratnam that Senior Constable See's long term prognosis 'depends on how the case is handled and depends on if Mr See feels the outcome is a 'just' outcome'." The diagnosis of Dr Maguire is the same as that of Dr Mastroianni, but he omits the adjective "chronic".
On 25 February 1999 Dr Seletto expressed the opinion that the plaintiff was fit "to upgrade to some operational duties at the discretion of his commander". On 29 October 1999, the plaintiff had an unprovoked "minor panic attack" at Katoomba Police Station. He attended the Blue Mountains Hospital but by the time he saw the doctor the attack had "resolved". The doctor provided a certificate of unfitness for that day's shift.
On 17 December 1999 the plaintiff was playing volleyball when he was injured, fracturing his right patella. On the following day he went on sick report. He underwent surgery at Orange under Dr Meachin on 20 December 1999: the patella was wired together using two pins. On 15 January 2000, however, he fell whilst using crutches and there was a further fracture. Further surgery was practised at Bathurst on 16 January 2000 by Dr Bosanquet. On 18 February 2000, Dr Seletto, PMO, cleared the plaintiff to return to suitable duties. However, the plaintiff did not return to duty until 7 April 2000, and further surgery needed to be practised in December 2000. The plaintiff said in his evidence that a PMO and David Busby from the Police Welfare Branch advised him that the best thing that he could do it to "get rid of excess adrenalin" was to take up sport, and so he took up playing volleyball (T85). Whether that advice is sufficient to make the plaintiff's knee injury compensable is a moot point: see for example, Hood Construction Pty Ltd v Nicholas and Anor (1987) 3 NSWCCR 45 (CA). It is clear from a report made by the plaintiff on 24 April 2002, contained in exhibit BB, that the plaintiff was pressing such a claim. The first sentence of the report is this: "About fourteen months has lapsed since the Workers Comp Branch has received my claim for that injury." This claim is not, and could not be, before me in these proceedings as the plaintiff was not medically discharged on account of his knee injury, but there is a mechanism available to the plaintiff which would allow this Court to determine this claim.
On 18 May 2000, Dr Kan referred the plaintiff to Dr JR Strum, psychiatrist. By 7 August 2000, when he wrote his first report, Dr Strum had seen the plaintiff "on several occasions". Dr Strum stated that by 7 August 2000 his symptomatology was this: "His present symptoms are still those of insomnia, mainly restless sleep, nightmares, panic attacks. His appetite varies, his weight is reasonable. He is not drinking excessive alcohol. His sex drive comes and goes. He has problems with short term but his concentration is reasonable [sic]. He says that he is not cranky or irritable. There are no homicidal thoughts but he is resentful about the Ombudsman and the Police Department. He is anxious. He ruminates with the unfairness of the report. He suffers from shakes, diarrhoea, headaches, abdominal churning." He then said this about diagnosis: "I have seen Dr Mastroianni's report. He diagnoses a Chronic Adjustment Disorder with Depressed and Anxious Mood. He says that Mr See is a man with a premorbid personality, of being a perfectionist with high expectations of himself and others. He says that he has resultant anger from a perceived injustice. He treated him by way of medication and cognitive behavioural management. I agree with Dr Mastroianni's diagnosis. Mr See is suffering from Chronic Adjustment Disorder with Anxiety and Depressed Mood but he also has symptoms of Post-Traumatic Stress Disorder in that he has anxiety, nightmares, flashbacks, avoidant behaviour and is phobic about the Police Department. I agree with Dr Mastroianni about the fact that he has an Obsessional Personality Disorder. It often happens when people with Obsessional Personality Disorders find themselves in the situation which they consider grossly unfair and from which they cannot escape that they decompensate into an Atypical Depressive Illness which is difficult to treat." The doctor went on to express a guarded prognosis: "He has been sick for a long time and he will be sick for a long time." And so it came to pass. Whether the "rigid thinking style" identified by Dr Mastroianni ought be classified as an Obsessional Personality Disorder or merely an obsessional personality trait is an interesting question.
In a short report dated 18 September 2000, Dr Strum said this to Dr Kan: "I am continuing to see Mr See. I think that in some ways he is better but really he wants to get out of the Police force and is agitated that there is now a letter from his solicitor to which I haven't yet replied. I think that once he is away from the situation he will feel better. I don't think he will ever come to terms with what has happened to him." I believe the verb "wants" in the second sentence to mean not "desires" but rather "needs". In a report dated 16 November 2000, Dr Strum said this: "In October 2000 he was faced with a similar situation to that in 1997, in that he had to take a report about a missing girl. Unlike 1997, this girl [has] survived her experiences. She had been sexually assaulted. The effect of him was to increase the severity of his symptoms. He is now severely depressed and is suffering from nightmares and flashbacks. He is finding it difficult to cope with work." The plaintiff gave no evidence about this event, but it is pleaded. However, it would appear to represent a transient aggravation of the plaintiff's underlying psychiatric condition, as well as being a manifestation of it.
Over time, the plaintiff's "restricted duties" changed. Initially he was doing "administrative duties", and then he was put in charge of exhibits. The plaintiff described that as a "big job". Then, for about 12 months, he performed duty as the Court process officer, based at Katoomba Police Station and the Katoomba Court House. Sometime in either 2000 or 2001 Sgt Signorelli from the Police Welfare Branch told the plaintiff that the COP wanted police "on full duties or out". An attempt was made to return him to full duties. If he were assigned to a car crew, the plaintiff was required to work with an experienced officer. He only worked day shift. However he was returned to restricted duties as he was "too anxious". This may have been around the time of the incident just mentioned.
On 20 March 2002 the plaintiff had a breakdown at work, early in the morning. He went to the Blue Mountains Hospital where he arrived at 7.15am. He was seen by the triage nurse at 7.30am. At 8.30am he complained of a thumping sensation in his chest. An ECG was performed. A cardiologist was called in. At 9am he saw a "Mental Health" doctor. His or her notes are: "41 year old man, police officer at Katoomba. PTSD symptoms since incident at work in 1997. Today attended work but was overwhelmed by anxiety/panic symptoms. Has seen private psychiatrist Bob Strum in past and psychologists also. Now coming to realization that may be unable to continue working in [NSWPF]. No psychotic symptoms. PTSD symptoms: - persisting nightmares and memories of events, - anxiety at work, fearful of becoming involved in cases, falling behind in duties - some depressive symptoms, low mood, fearful, feels burden to family and workmates No suicidal ideation. Has stated he would like to be killed whilst on duty, then family would be financially secure - denies any intention to harm himself. - describes family as very supportive/good relationship with kids. Impression - PTSD/Adjustment disorder Plan - (1) Will follow up with own [LMO] re possibility of medication and referral to Dr Strum - (2) Medical certificate to end of week." The plaintiff left the hospital at 10.30am. The bundle of medical certificates before me, exhibit MM, does not contain a certificate from the hospital doctor, but a certificate Dr Kan certifying unfitness for work from 20 March to 28 March 2002. The plaintiff could not recall the trigger for this breakdown, but there is a possibility that it was related to the fifth anniversary of the events commencing on 2 March 1997.
On 10 April 2002, the plaintiff completed another P 124, another claim for hurt on duty benefits. He nominated Wednesday 20 March 2002 as the date of the injury. He provides this narrative of the injury occurred: "Following what I believe [sic] to be a politically corrupt investigation into an incident at Lithgow 2/3/97. A Deputy Commissioner was put in a position where they had to tell me untruths and made demeaning accusations to support the corrupt investigation. I am constantly re-living those false accusations and untruths. My anxiety levels have gradually increased and on arriving to work on 20/3/02 I broken down, constantly crying and unable to complete my rostered shift." This document could constitute a complaint about the conduct of a former police officer, the late DC Lawson. The Patrol Commander Super R Filewood assigned Det Insp M A Howe to inquire of the plaintiff whether he was pressing such a complaint. Det Insp Howe made this report (ex CC) on 10 August 2002: "1. I have perused the P.124 document submitted by Senior Constable See and accordingly, at 12.50pm this date, I made telephone contact with the officer and ascertained that:- The "… … politically corrupt investigation" referred to within the claim details section of the report relates to his belief that investigations conducted by staff from the Ombudsman's Office were politically motivated, flawed and corrupt; With respect to the assertion that, "… a Deputy Commissioner was put in a position where they had to tell me untruths and made demeaning accusations to support the corrupt investigation …" Constable See relates here to a meeting between himself and former Deputy Commissioner Bev Lawson (deceased). The officer informs me that he complained of the actions/comments relative to Ms. Lawson and his complaint was processed by the Police Integrity Commission, however, Deputy Commissioner Lawson passed away prior to any formal inquiry was commenced; and, The "… corrupt investigation" as referred to above, also relates to an investigation conducted by officers from the Ombudsman's Office. 2. In essence, Senior Constable See indicated to me that he has no complaint, either formal or informal, with respect to the Internal (Police) Investigation relative to his actions/in-actions, which arose as a result of an incident at Lithgow on the 2 March 1997, and desired no action with respect to the issue involving former Deputy Commissioner Lawson. 3. Accordingly, I recommend no internal action/inquiry regarding the matters raised by Senior Constable See within his Hurt On Duty Claim Form, as outlined within the 'Claim Details" Section of that document."
On 30 April 2002, the plaintiff again saw Dr Janne Seletto, PMO. The plaintiff was still on restricted duties because of his psychiatric condition and because of his right knee condition. The PMO did not believe the plaintiff was fit for operational duties and recommended review in a further six months. That review, however, did not take place until 9 December 2002. It was conducted by another PMO, Dr Inglis Chern. The substance of the report is this: "Steven reports to have achieved some improvement to both his psychological and right knee conditions since his last review on 30 April 2002. With respect to his psychological condition, he has commenced on a new anti-depressant that has helped his psychological symptoms. He still displays moderate levels of anxiety and depression. He sees his GP Dr Kanagaratnam for follow up on about a six-month basis, which correspond approximately with the length of his prescription. He is not seeing a psychiatrist as his regular psychiatrist no longer attends the area and because of the added financial strain that would be impose[d]. He does not want to see an Employee Assistance Program psychologist as it would involve going through a lengthy recount of what has occurred. He is hopeful of taking undisclosed action that will somehow help correct the injustice that has been done to him. He is optimistic about a positive outcome. He acknowledged that the outcome is beyond his control and despite believing that if the outcome were favourable he would handle it very poorly, it was an action he feels compelled to take. The action was related to part of an ongoing issue over the past 5 years, and when or if a resolution of this action was likely to occur was indeterminate. A more direct area of potential concern is that his work in exhibits present opportunities to have access to firearms. He did contemplate using the firearm in June of this year. He denies any further suicidal ideation since. He enjoys his role in exhibits and wants to remain in this role. Although he does not pose a suicide risk at present, the lack of ongoing psychiatric treatment and this undisclosed action means that he could become a suicide risk in the future. He may remain in exhibits if his access to firearms there can be restricted. With respect to his right knee he has undertaken activities to improve strength and flexibility. He is now going on bush walks. He is unable to run, jump, lift heavy items or stand for prolonged periods without knee pain. He states that he saw orthopaedic surgeon Dr. Peter Gray a few days ago and was to continue in a restricted capacity until reviewed in 6 months. Dr. Gray was guarded about long term prognosis and eventual return to operational duties. He is not cleared for either psychological or knee condition to resume operational duties. Despite showing some improvement, he would need to demonstrate substantial further improvement prior to him being considered fit for operational duties. Both conditions potentially could preclude him from returning to operational duties in the long term. He wished to return to operational duties but knew that he is not ready at this time and it is unclear as to when and if he will ever return. Until there is indication from his orthopaedic surgeon of a good prognosis for his knee and a substantial improvement in his psychological condition, the likelihood is that he will remain on restricted duties in the long-term. Recommendations Not fit for operational Police duties. The restrictions are: No access to firearms Not to wear appointments Not to wear uniform outside the police station Not to work alone in public areas of the station Not to drive marked Police vehicles Not to deal physically with offenders or intoxicated persons He follows medical restrictions as guided by his treating doctors. This currently include no heavy lifting and standing for prolonged periods. He sees a psychiatrist on a regular basis. If the psychiatrist was able to monitor his psychological condition and considers him fit to have access to a firearm, further consideration can be given to lifting this restriction prior to his next review. He is reviewed by the Police Medical Officer in approximately 6 months' time. He provides for the review, reports from his treating doctors with respect to his psychological condition and his knee." On or about 19 March 2003 the plaintiff was placed on permanent restricted duties ("PRD"). He remained at the Katoomba Patrol but his new work place was at Springwood where he was to work in Exhibits, all exhibits collected at Katoomba were transferred to Springwood, perhaps making one depository for the whole Patrol.
The plaintiff was next reviewed by a PMO, again Dr Inglis Chern on 20 October 2003. He arranged for him to be referred to Dr Maxine Walden, psychiatrist. She assessed the plaintiff on 6 November 2003. No report from Dr Walden is before me but Dr Chern's report of 3 December 2003 comments on her opinion. She diagnosed recurrent episodes of anxiety and depression which had subsided but there was a risk of relapse if there were reminders of the murder of Ms Lewis or if events did not go as the plaintiff wished in "his appeal for his time off to be classified" as HOD. Dr Walden thought that the plaintiff was unfit for operational duties and unfit to handle firearms. In essence, Dr Chern agreed with Dr Walden and again imposed the restrictions he imposed on 9 December 2002.
For the years 2004 to 2008 there is no contemporary documentary evidence before me, except of 4 attendances upon Dr Kan. The plaintiff gave this evidence about this period: "Q. I want you to if could please and I want you to try your best to give his Honour the complete picture in the years leading up to April 2009, if we start it from about, say, 2003 or 2004, I want you to describe to his Honour how you perceived yourself to be from a psychological perspective? A. Ups and downs. There were still times where I've had triggers. I can't remember what all the triggers were, but I just at work in tears, headaches, shaking. But I'd stay at work, continue doing my work and try to compose myself. Generally I did my best to perform my job to the best of my ability, but yes, there were ups and downs. Q. What do you mean by that? How do you remember yourself as being when you were down? A. Very anxious. It was always in the back of my mind was the ombudsman and the deputy Commissioner, the effect this has had on my whole family and just fear that something else can go wrong then. Yeah, fear, anxiety and depression, total loss of self esteem, self worth, thinking my family might be better off without me. Q. You have told his Honour earlier in your evidence that at times you had difficulty with sleeping. Did those problems continue? A. Yes. Q. In what way did they continue? A. I would have nightmares while I'm trying to rest. All the flashbacks would occur. Q. Flashbacks to what? A. To the ombudsman and the deputy Commissioner."

[30]

The plaintiff ceases work

On 29 July 2008, Messrs Oates and Smith, acting for the plaintiff, wrote to Messrs Henry Davis York, acting for the COP, in proceedings between the parties in GREAT. This is the substance of that letter: "We refer to the above matter and confirm this matter is listed on 14 August 2008 for the appellant to show cause why the matter should not be struck out. Our client now instructs us to offer to discontinue all of the above proceedings on the basis that he be re-credited 578 hours of annual leave and 934 hours of sick leave taken by him between 7 March 1997 and 31 May 1999. Our client would agree to this offer being accepted on a "without liability basis". We enclose herewith by way of service upon you our client's leave history and report of Dr Mastroianni dated 6 April 2005. We confirm that our client will forego his claim regarding any sick leave or annual leave taken outside of the above period and agrees to discontinue all of the above G.R.E.A.T matters, including HOD 478 of 02 and [36] of 03 which relate to our client's right knee injury. We confirm our client's treatment expenses have been satisfied by the NSW Police Force arising out of a settlement in District Court proceedings RJ953 of 2003. We enclose a copy of the Short Minutes of Order which were handed up in Court on 8 May 2006. This offer remains open for seven days only." That letter drew this reply from the defendant's then solicitors: "We refer to the above appeals and to your letter to us dated 28 July 2008. We have been instructed by our client to reject the offer contained in that letter. We confirm that at the mention in GREAT on 12 June 2008 that Registrar Demetriou listed the appeals for a section 47A strike out hearing on 14 August 2008. Please ensure the appellant is represented on that occasion." Each of these pieces of correspondence related to four appeals before GREAT: 187 of 1997, 47 of 1998, 478 of 2002 and 36 of 2003. What exactly happened on 14 August 2008 is not clear but it appears from the intitulment of subsequent correspondence that none of these appeals was struck out.
On 24 February 2009, Messrs Oates and Smith sent this letter to the plaintiff about his "appeal to GREAT": "We refer to the above and you might recall in August 2008 we received your instructions to offer to settle your above GREAT proceedings on that basis that your annual leave in the amount of 578 hours be re-credited and you would forgo any claim for sick leave. The respondent has now inquired whether this offer is still on the table and we seek you instructions accordingly. It is our advice that if you were to be re-credited 578 hours of annual leave this would be a good result in all the circumstances. Should you be in agreement with our advice we enclose an authority for you to sign and return. We confirm the agreement would be on a 'without liability basis'." The plaintiff gave his then solicitor further instructions. They sent this communication to Messrs Henry Davis York on 31 March 2009: "We refer to the above and confirm our client maintains his previous offer as follows. Our client will discontinue all of the above proceedings on the basis that he be re-credited 578 hours of annual leave. We confirm our client will forego 934 hours of sick leave taken by him between 7 March 1997 and 31 May 1999. Our client would agree to this offer being accepted on a 'without liability basis'." This offer was rejected by the defendant. That information was conveyed to the plaintiff by an email on 8 April 2009. The same email produced this short piece of advice: "You must now either run your matter in GREAT (not advised) or make an application for medical discharge." The email went on to invite the plaintiff to telephone the sender, should he wish to discuss things. This email was sent to the plaintiff at 9.48am in response to his enquiry at 8.03am as to what had happened on the previous day, perhaps when there was an appearance before GREAT.
At 11.03am on that day, 8 April 2009, the plaintiff presented to the Blue Mountains Hospital Emergency Department triage nurse who recorded this history: "Patient states he has a history of anxiety. Has had stressful news today and has had anxiety problem. Not seeing anyone about this at this time. Usually deals with this himself with minor difficultly." At 12.03pm he saw a medical practitioner, Dr Sean Nicholson. Dr Nicholson noted that the plaintiff was "keen to organise treatment and management" through his LMO. The plaintiff told the doctor that he attended the Hospital because he was instructed to do so by his "employer". The doctor issued a certificate of incapacity for the period 8 April to 24 April 2009.The plaintiff never returned to duty.
Dr Kan's computer-generated notes (included in exhibit KK) indicated that the plaintiff attended upon him on 21 April 2009 at 10.00am. However, a report dated 9 September 2009 (part of exhibit OO) contains this: "His last presentation was on 20 April 2009 when he presented with worsening anxiety and depression symptoms with flare up about 10 days prior to 20 April 2009. Mr See claimed that the current flare up was due to his claim being "knocked back" again … He felt he was not coping at work and felt he could not cope with returning to work …" On 29 April 2009 Dr Kan completed a questionnaire sent to him by an Injury Management Advisor to the NSWPF. Dr Kan provided a diagnosis of "Depression/Anxiety Disorder". He said this was triggered by an "Aggravation of pre-existing condition following his workers compensation claim being declined again." He described the plaintiff's symptoms thus: "depression with poor sleep, agitation, anxiety attacks, worse since the most recent stressor but present for a long time." In addition to medication, Dr Kan advised that the plaintiff should have counselling with a psychologist. The plaintiff commenced counselling with Ms Penelope Walk of 1 May 2009. Dr Kan said that he did not believe that the plaintiff was likely to return to his "pre-injury duties" and that it was best for him to be medically retired so that he could seek employment in an "unrelated field". He was asked what factors were prohibiting the plaintiff from returning to work on "suitable duties" and Dr Kan replied, "(h)e feels [he] has been treated unjustly and feels he wants OUT and would like to start afresh!" Dr Kan, in subsequent answers made it clear that he agreed with the plaintiff's own assessment.
The plaintiff submitted a claim for further HOD benefits on 29 April 2009. He supported that application with a lengthy report of the same date, providing a synopsis of events since 2 March 1997. The relevant portion of that report is this: "On 8th April 2009, I was carrying out my duties as the Exhibit Officer at Katoomba Police Station when I received an email from my solicitors that work on behalf of the Police Association. The email read, "Surprisingly the offer has been rejected by the Commissioner. You must either run your matter in GREAT (not advised) or make an application for medical discharge. As a result of this information the emotions and memories of that incident returned. I broke down crying and was unable to complete my duties. I am still suffering anxiety symptoms." His Commander, a Superintendent, endorsed this on that application of 1 May 2009: "The officer has been involved in long and protracted litigation with the NSWPF concerning a previous HOD decision. The officer has continued to return to work in a non-operational role. He is a valuable member of the Command. On the 8-4-09 he received an email from his solicitor from the Police Association advising him he should put in for medical discharge. The officer was visibly upset and unable to complete his shift. This has been a matter that has dragged on for nearly 11 years. The officer has attempted to move on however this email correspondence has undone all his forward progress. I have been advised the officer cannot return to work with NSWPF. I have continued to support this officer. He has been on a number of RTW programs. I do not think he will return to duties."
The plaintiff had five sessions with Ms Walk between 1 May 2009 and 18 August 2009. Ms Walk provided Cognitive Behavioural Therapy (CBT). Dr Kan also referred the plaintiff back to Dr Tony Mastroianni who saw him on 15 July 2009. Dr Mastroianni supported the plaintiff's being treated with CBT. In a medico-legal report of 24 May 2010, Dr Mastroianni said this: "Snr. Constable See re-presented to me for psychiatric care in July 2009. He reported a several month history of a recurrence of depressed mood, recurrent nightmares (of past, work-related traumatic experiences), insomnia (relieved by using the sleeping tablet temazepam at least several times per week), reduced motivation, reduced self-confidence, heightened anxiety, an inability to trust himself with any tasks that required him to assume responsibility, and frustrated rumination about the perceived injustice of his treatment by the New South Wales Police Department. His general practitioner, Dr Kanagaratnam, had prescribed the antidepressant medication citalopram. Citalopram did not significantly improve Snr. Constable See's mood, however, it resulted in numerous side effects which exacerbated his problems. The exacerbation of Snr. Constable See's depressed mood in 2009 was reportedly precipitated by a letter from his solicitor received on 18 April 2009, informing him that the Government Related Employee Appeals Tribunal would not offer him any chance of validation concerning his dispute with the New South Wales Police Department. Snr. Constable See's treatment since July 2009 has included a change of medication from citalopram to prazosin. Prazosin has been reported in the medical literature to have assisted people with post-traumatic stress-related psychological disorders. He has also benefitted from cognitive and behaviour therapy techniques aimed at diffusing post-traumatic experiences and challenging his cognitive framework surrounding his work-related trauma and their sequelae. Although, Snr. Constable See's psychological symptoms have improved since July 2009, he remains anxious in mood at most times, with depressive bouts when contemplating any return to work and when re-exposed to work-related issues. Other life stressors (e.g. his recent concern about his son's temporary ill health) reportedly destabilised his fragile mood recovery, resulting in chronic fatigue, headaches and emotional over-reactivity to situations." In a handwritten treating report to Dr Kan Dr Mastroianni said this on 14 July 2010: "As you know, the issue of whether he will be granted medical discharge from the Police Force remains a chronic aggravating stressor for Mr See. His perceived vulnerability and helplessness, coupled with his underlying anger and frustration at the perceived injustice of his situation, depressed mood when certain exposures to stressors occur on a daily basis. Fortunately, he is not exposed to such stressors when away from work and his anxiety episodes are less frequent." Dr Mastroianni went on to discuss with Dr Kan changes in the plaintiff's medication regime and the need for continued treatment.

[31]

Medical opinions

The vast majority of the remaining medical reports before me provide medico-legal or the like opinions, i.e. opinions obtained to be presented to PSAC. It must be borne in mind, as I said in [3] above, that the issue for my determination is whether the infirmity of "chronic major depressive disorder" was caused by the plaintiff's having been HOD. Not all the medical practitioners agree on the diagnosis.
Dr Ben Teoh, consultant psychiatrist, examined the plaintiff on 16 November 2009 at the request of the administrator of the PSF. He accepted that the plaintiff was not fit to work as a police officer. He diagnosed a chronic Post-Traumatic Stress Disorder (PTSD) with co-morbid Major Depression. He expressed this opinion as to causation: "It is my opinion that Mr See's condition is caused by the event in relation to his work whilst he was on duty in 1997, and possibility the accumulative traumatic experiences preceding that event (my emphasis)." Considering both Dr Teoh's own history and that which I have canvassed thus far in these reasons, I am confident that the gerundive "preceding" should be read as "succeeding". Later in his opinion Dr Teoh expressed the view that the plaintiff's condition had deteriorated since he was seen by Dr Mastroianni in 2005.
Dr Tony Mastroianni in his report to the administrator of the PSF of 24 May 2010 expresses this opinion: "It is my medical opinion, within reasonable medical certainty form the information available to me, that Snr. Constable See has met the criteria for a diagnosis of Post-Traumatic Stress Disorder. He has comorbid Major Depressive Episodes, triggered by events that are related to the original Index stressors and which overwhelm and demoralise him because of the perceived threat to his personal or financial integrity. Given that Snr Constable See had not had any known history of psychiatric difficulties prior to March 1997, the known evidence suggests that his post-traumatic psychological distress was precipitated and has been perpetuated over the years by the well-documented work-related stressors. I note that there may appear to be a discrepancy between the diagnoses given to Snr. Constable See by various psychiatrists over the years. The diagnosis of Chronic Adjustment Disorder with Anxiety and Depressed Mood, diagnosed by psychiatrist Dr James Maguire and by me after our assessments of Snr. Constable See in 1999, is a psychological condition that occurs after a traumatic event and describes the psychological distress that persists after such a trauma. My reluctance to use the diagnosis of Post-Traumatic Stress Disorder at that time was due to the diagnostic rigour imposed by the Diagnostic and Statistical Manual of Psychiatric Disorders (DSM-IV). The DSM-IV stresses that the criteria for a definition of a 'trauma' must include the person experiencing 'an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others'."
Dr Peter Klug, Forensic Psychiatrist, was qualified by the plaintiff's current solicitors. He interviewed the plaintiff on 11 and 18 October 2011 and prepared a report dated 5 December 2011. He provided a supplementary report of 25 February 2013. He was the only expert who gave oral evidence. In his first report Dr Klug said this: "His history of psychiatric problems bear a clinical and temporal relationship to work-related events in 1997, as noted in the body of my report. It appears he was placed in an extremely difficult situation at work concerning what eventuated as the rape and murder of a young woman. I will not reiterate these details in my "opinion" and I refer you to the history in my report above. He described the criticism from the bureaucracy and the reports from the Ombudsman's office as unjustified and focusing on his actions at the time. From the description he provided I could understand his dilemma and dismay. The symptoms he developed included: severe depression of his mood; marked loss of appetite; marked loss of weight; intermittent suicidal ideation; a marked preoccupation with the relevant events and the Ombudsman's reports; marked anxiety about leaving home; a marked sense of shame; marked anhedonia; loss of libido; constant headaches; severe bruxism; phobic anxiety about and phobic avoidance of reminders of the incident. He became chronically unwell. His psychiatric symptoms are easily compatible with a chronic and severe major depressive disorder. His symptoms bear a close clinical and temporal relationship to the events of 1997. He subsequently went on restricted duties and never returned to full duties. Although he has a history of recurrent right patellar injuries, there is no prior history of psychiatric problems. There is nothing to suggest a predisposition to psychiatric illness. He is happily married and had four adult children, all of whom live with him. He is very relieved to be out of the New South Wales Police and continues to enjoy work with the Volunteer Rescue Squad, which acts as a strong support network for him. At interview he was a forthright, articulate and intelligent man who was distressed at times about the actions of the police and the Ombudsman's office. He described a marked lack of trust in the integrity of the process he has been exposed to. He described intermittent and persistent depression of his mood, which is, nevertheless, improving. On documentation review it was clear that other mental health professionals have regarded him as suffering from a variety of psychiatric illnesses, including chronic adjustment disorder and a chronic post-traumatic stress disorder. I note his treating psychiatrist, Dr. Tony Mastroianni, regards his psychiatric problems as being precipitated and perpetuated by the events of 1997 and their consequences. It is my opinion that Mr See has suffered from a chronic major depressive disorder, which is now in partial or substantial remission. It probably fluctuates in severity over time. I do not regard him as suffering from a chronic post-traumatic stress disorder, which is an anxiety-based disorder. It is my opinion that this condition has been directly caused by the events of 1997 and their consequences. From the description of Mr. See and also from what I have noted in the report of Dr. Tony Mastroianni, his psychiatric condition is work-related." Dr Klug's supplementary opinion of 25 February 2013 was made after he saw further reports from Dr Mastroianni. He then expressed this opinion: "Dr. Mastroianni's diagnosis of a chronic major depressive disorder is compatible with my own. I am aware that Dr Mastroianni has given great consideration in arriving at his other diagnosis of a chronic post-traumatic stress disorder. With great-respect, it is not my view that Mr See suffers from this condition. The symptomology he described to me is not compatible with this, although Mr. See does suffer from some symptoms along that spectrum. It is also my view that the type of stressors to which he was exposed, giving rise to his severe symptomology, and bearing a close temporal relationship to it, were not traumatic in nature. This is not to deny that there were severe stresses but qualitatively these do not, in my view, qualify for the rubric of a traumatic stress. This is essential for the diagnosis of a post-traumatic stress disorder, which I believe, consequently, cannot be considered in his case for this reason alone. Consequently these further documents do not alter my opinion."
Dr Jonathan Phillips, consultant psychiatrist, was qualified by the solicitors acting for the defendant in the current proceedings, Messrs McCabe Terrill. Dr Phillips saw the plaintiff on 10 January 2012 and 15 February 2012 and prepared a report dated 18 May 2012. He also prepared a supplementary report dated 22 January 2015. It is, in my view, important to note that Dr Phillips noted Dr Strum's opinion that the plaintiff had an obsessional personality disorder. At [111] of his primary report he continued thus: "He made the point that a person with such a disorder (including the plaintiff) was likely to decompensate psychologically in any situation perceived to be grossly unfair and where there was no escape. He noted that the most likely outcome in the circumstances would be the development of an atypical depressive illness. I agree with Dr Strum's observations, and agree also that the plaintiff had at least some obsessional personality traits at the time, and they continue currently. It can reasonably be accepted that the plaintiff felt let down and hurt by administrative counselling carried out by the police hierarchy, offended by the opinion of the Coroner [sic, scil. Ombudsman], and distressed by media exposure. It was these matters which caused him to decompensate psychologically sometime after the incident of 2 March 1997." Nevertheless, at [97] of the same report, Dr Phillips expressed the view that the plaintiff was, prior to 2 March 1997, a man of "normal emotional fortitude". He went on to express the view that, if the plaintiff's history were reliable, he was "exposed to psychological trauma at/following the incident of 2 March 1997". Dr Phillips then provided a short synopsis of the history of events on 2 March 1997 and continued thus: "100. Rightly or wrongly, Mr See was later to face criticism from the Ombudsman when she carried out an investigation into the incident, and there was a public statement made jointly by the Ombudsman and the Commissioner, which he felt was a personal attack on him. The situation was made worse by media interest in the incident, and that he was identified both in the written press and on television. Additionally, fellow police officers seemingly became annoyed when he wished to contribute to the investigation, and he was told on one occasion to hang himself, and on another occasion was questioned why he had not hanged himself. 101. The evolution of Mr See's psychological symptoms is interesting. On the history, the plaintiff decompensated psychologically following the incident of 2 March 2007 but only when he perceived himself to have been unfairly criticised, and when he was identified and painted in a bad light by the media. 102. Mr See developed an admixture of anxiety spectrum symptoms and depression spectrum symptoms over a period of time but following the incident of 2 March 1997. The plaintiff lost confidence and his esteem deteriorated, he experienced an anhedonic mood state with episodic suicidal thoughts (but no suicidal action), he had general anxiety, he lost libido, he ruminated about the welfare of his children, he developed a fear of being in public places, he became hypervigilant and he was lethargic. The plaintiff developed a number of psycho-physiological symptoms additionally, these including constant headache, impaired appetite with 4 stone weight loss, a knot within his abdomen, and shaking of his hands and legs. 103. The above group of symptoms developed over a period of time but following the incident of 2 March 2007. The symptoms were relatively typical of an adjustment disorder with mixed anxiety and depressed mood DSM IV TR 309.28. Adjustment disorder can nevertheless be disabling on occasions. 104. While some of Mr See's symptoms pointed towards a diagnosis of post traumatic stress disorder, that diagnosis could not have been made because the principal trauma criteria for the disorder did not apply, and his symptoms in general would have failed to satisfy DSM IV criteria for the disorder." Dr Phillips then comments on the records/reports of Dr Kan, Dr Mastroianni and Mr Robinson and then says this: "110. Taking the comments of all three professionals who treated Mr See in the years after 1997, it seems that there is unified opinion that the plaintiff's reaction was not the direct result of the incident of 2 March 1997, but that the plaintiff's mental health symptoms (in whatever form they took) were more likely to have arisen as a consequence of the plaintiff feeling emotionally hurt by administrative action taken by the police hierarchy, and in response to criticism of him by the [Ombudsman], and unwelcome exposure by the media." A little later, Dr Phillips said this on the questions of diagnosis and causation: "112. It is hard to be certain about Mr See's diagnosis so many years after the incident of 2 March 1007. However, I accept that the plaintiff probably developed trauma based anxiety symptoms following the incident of 2 March 1997, rather than being triggered by the incident itself. I accept that the plaintiff eventually developed symptoms which pointed to a diagnosis of post traumatic stress disorder. It is unlikely that the diagnosis of post traumatic stress disorder would have been made initially, as the plaintiff failed to reach the trauma criterion as set out in DSM IV nosology. I accept that Mr See probably had suffered depression spectrum symptoms at least from 2000, as reported by Dr Kanagaratnam and that he required medication from that time with anti-depressant agents. 113. Standing back a bit, it is likely that, in keeping with specific personality characteristics, and in the context of managerial counselling and external criticism, Mr See moved from a situation of overtly normal mental health, to a situation where he became symptomatic. 114. However, in noting the above, it is important to accept that Mr See may legitimately have required managerial counselling for his actions (or lack of actions) while he was officer in charge at the Lithgow police station on the night of 2 March 1997. Additionally, the Coroner [sic, scil. Ombudsman] had reached an adverse opinion regarding the plaintiff's professional performance at that time. The involvement of the media was inevitable and beyond the plaintiff's control. … 116. For the record, it may assist also to offer a DSM IV TR multi-axial diagnosis. The following will apply: Axis 1 No current diagnosis. However, the plaintiff probably suffered an admixture of anxiety spectrum symptoms and depression spectrum symptoms in the context of perceived injustice following the incident of 2 March 1997. Axis 2 No personality disorder. Some obsessional personality traits. Axis 3 No relevant physical pathology. Axis 4 Perceived injustice of a personal type following the incident of 2 March 1997, including administrative counselling by the police hierarchy, the findings of the Coroner, and press/television material released about him. Axis 5 Global Assessment of Functioning Score (GAF) 71-80, verifying the occurrence of transient emotional symptoms potentially at times of stress. 117. At this point in time, it would be hard to justify any specialised treatment for Mr See. He should continue to attend his general practitioner on the basis of need however. 118. Mr See has proved that he has a good prognosis. Whilst I do not doubt that the plaintiff experienced anxiety spectrum and depression spectrum symptoms in the past and in the context of perceived injustice, he has made a satisfactory recovery with very few residual psychological symptoms. The plaintiff is leading a busy and relatively normal life in his retirement. His prognosis will continue to be good in the future." The doctor had been asked certain questions by the defendant's solicitors. There were a number of questions directed to the question of causation. The doctor excluded any stressor prior to 2 March 1997. The murder of Ms Lewis itself did not directly cause the plaintiff's mental health problems. He went on to say: "The clinical evidence available to me suggests strongly that the plaintiff reacted badly to media attention following the murder of Ms Lewis, with this including the press, radio and television. He had been personally identified in the media coverage … I accept that the plaintiff would have become emotionally distressed when informed by the Patrol Commander on 6 March 1997 that there had been a complaint about his actions (or lack of actions) on 2 March 1997 and that he would be counselled … The plaintiff perceived the police investigation and associated police conduct to have been unfair. This is of central importance and it would explain in major part why the plaintiff decompensated psychologically … The plaintiff is entitled to his beliefs in relation to the investigation carried out by the Ombudsman. It does not matter whether he was right or wrong in his perception of the investigation. His perception of wrongfulness and corruption at the time of the investigation will have been a causal factor leading to his psychological decompensation … [T]he plaintiff has his own perception of the action and comments made by DC Lawson. The perception that she told him "untruths" and this became a causal factor leading to his psychological decompensation … I accept that the plaintiff is aggrieved that his HOD claims were rejected by NSWPF. The psychological hurt will have been a causal factor leading to his psychological decompensation." Later in the report Dr Phillips was asked whether the plaintiff's then certified infirmity "arose out of or in the course of his employment with NSWPF." His answer included this: "In my opinion, it was the plaintiff's perception that managerial intervention by the police hierarchy had been improper and injust, and his perception in relation to adverse findings made by the [Ombudsman], and his exposure to the media, which caused him to undergo a psychological decompensation." Shortly thereafter the doctor's report poses these questions and provides these answers: "ii) Whether the plaintiff's employment with the NSWPF was a substantial contributing factor to the infirmity; I do not think that it could be stated that the plaintiff's employment per se by NSW Police was a substantial contributing factor to his infirmity. It would be correct to state that at most times the plaintiff had enjoyed his police career. iii) Whether the plaintiff's infirmity was aggravated, accelerated, exacerbated or deteriorated as a result of his duties as a police officer; As already stated, I accept that repeated exposure to stressful situations in the course of a police career will lead to an erosion of psychological resilience. However, there was nothing to suggest that the plaintiff developed any recognisable or diagnosable psychiatric disorder prior to the events which followed the incident of 2 March 1997. It can reasonably be stated that the plaintiff's infirmity was triggered and aggravated by his personal perception that he had been unfairly treated by police hierarchy after the incident of 2 March 1997. It could not be stated, however, that his infirmity is related to his reasonable duties as a police officer."
Dr Jonathon Phillips' supplementary report is one prepared by the doctor on the basis that the plaintiff was suffering from a chronic major depressive disorder, as diagnosed by Dr Klug, and which, of course, is now the relevant certified infirmity. Dr Phillips did not accept this diagnosis. He believes the most probable diagnosis is of an adjustment disorder with depressed mood. At [11] of his report of 22 January 2015, he states that the majority of persons who suffer from major depressive disorder have a genetic pre-disposition to the disorder, but "existential matters can be significant in the triggering of an episode of the disorder." The final paragraph if this report is this: "(a) Whether the plaintiff's infirmity of "chronic major depressive disorder" (i) arose out of or in the course of his employment with the NSWPF; It cannot be said with any confidence that Mr See's chronic major depressive disorder (as assumed) arose out of or in the course of his employment with the New South Wales Police. The plaintiff may have gone on to suffer depression spectrum symptoms whether or not there were stressors in his personal life, noting that he had almost certainly suffered a major depressive disorder in the past, this usually being a genetically determined mental health disorder. (ii) whether the plaintiff's employment with the NSWPF was a substantial contributing factor to the infirmity; Mr See's police career may have been a substantial contributing factor to his major depressive disorder, but obviously only after the events related by him which proved stressful in the course of his professional career. (iii) whether the plaintiff's infirmity was aggravated, accelerated, exacerbated or deteriorated as a result of his duties as a police officer; or In accepting that major depressive disorder is usually a genetically determined mental health problem, it is possible that Mr See's infirmity was aggravated as a result of his job as a police officer. (iv) whether the plaintiff's infirmity was caused by non work related factors. The most powerful causal agent leading to Mr See having a major depressive disorder (as assumed) would be his genetic constitution. Genetic matters would exist irrespective of work related factors. Simply, the greater part of the plaintiff's major depressive disorder (as assumed) would have been caused by non-work related factors."
Dr Tony Mastroianni prepared a lengthy medico-legal report dated 27 January 2015, for the purposes of which he appears to have interviewed the plaintiff again on 11 November 2014. After summing up the plaintiff's lengthy history, and his own treatment of the plaintiff's condition Dr Mastroianni said this: "Summary and Opinion The history available to me shows that Mr See has not suffered any psychiatric difficulties prior to March 1997. Since that time, he has suffered chronic and fluctuating psychiatric symptoms consistent of depressed mood, chronic anxiety and hyper vigilance, sleep disturbances, physical symptoms known to be associated with anxiety (e.g. headaches and abdominal symptoms), and an intense distress when confronted by stimuli that are similar to or remind him of his Index stressors. From a psychiatric perspective, Mr See's infirmity causing incapacity of Chronic Major Depressive Disorder has been perpetuated by his comorbid Post-Traumatic Stress Disorder (PTSD). His psychiatric presentation is consistent with his PTSD being precipitated and perpetuated by the following work-related stressors: 1. The local media reaction and the perceived unjust criticism from local townspeople due to his role as a police officer at the time of the death of the missing girl. 2. The State Ombudsman's preliminary and final reports which were critical of Mr See's handling of the missing girl's case. Mr See has perceived this criticism as unjust and against the Police Protocol that he was taught at university, against the Police Department's internal investigation findings, and against the Ombudsman's own recommendation in reports related to other cases. 3. The perceived unjust and traumatic interview of him and the reported ultimatum by Deputy Police Commissioner Bev Lawson in 1997. 4. The Ombudsman's and Police Commissioner's media statements and Mr See being named on national television and in the New South Wales State Parliament. 5. The ongoing lack of validation by the Police Department, especially its rejection of his HOD claim. 6. His inability to be promoted in the Police Department after Index Events despite his lengthy and conscientious dedication to service and his academic success in his Diploma of Applied Policing at university. 7. The financial restrictions caused by lack of shift work and penalty rate payments due to his change of duties after the Index Events, as well as the chronic threat that he would lose his pension entitlements if he was medically discharged prior to his 20 years of service. 8. The effect of the above stressors on himself and his family and their social circle in a small country town. The absence of any premorbid psychiatric history, the absence of any other non-police related stressors that would better account for his symptoms, and the history of his presenting symptoms (that is consistent with the known natural course of his psychiatric infirmity), are all factors that suggest that Mr See's employment with the New South Wales Police Force was a substantial contributing factor to the suffering by him of this infirmity. Mr See's obsessive-compulsive (perfectionistic) personality style, of meticulous adherence to detail and protocol and high expectations of himself, would have predisposed him to experiencing a major psychological blow when confronted with the abovementioned stressors that were either: (a) directly work-related; or (b) that he would not have otherwise been exposed to were it not for his role as Senior Constable in the New South Wales Police Force."
Dr Peter Klug gave evidence on 26 February 2015. At T218 the doctor said that certain parts of the history he obtained, which were incorrect, would not cause him to change his opinion, given the correct history. After referring to the plaintiff's transfer from Lithgow to Katoomba on 17 March 1997, this evidence was given: "Q. Assuming that that was the end of it, would you perceive that the episode of major depression would probably have resolved? A. Would have more, - yes, your Honour, I think so." The doctor went on to say that the plaintiff's receipt of the preliminary findings of the Ombudsman on or shortly after 1 May 1997 was "likely to be crucial. That the matter was unresolved and that he was, he felt that he would likely … come under very close scrutiny and criticism." As to what occurred to the plaintiff, as described in the plaintiff's evidence, between 14 August and 20 August 1997 Dr Klug said this: "I think it's very significant. He clearly felt intensely criticised and felt that it was unjustified and that he was being scape-goateed and I think it had a very deleterious effect on his mental state." After an objection was raised and discussed, the following evidence was given: "HIS HONOUR: I think we can approach it this way. Q. Doctor, a major depressive disorder is a condition which can be episodic? A. Yes, your Honour. Q. It is a condition which can be precipitated by external stressors? A. Correct, your Honour. Q. Made worse by external stressors? A. Yes. Q. On one view of it, if, after the initial police inquiry which finished about 14 March 1997, the plaintiff believed that he would recover - and it is your opinion that you thought that was likely if there was no further stressor - but if there was an ongoing stressor from adverse media publicity and then the complaint by the Member of Parliament to the Ombudsman, then the Ombudsman's preliminary inquiry of which he is informed on 1 May and then further inquiries by the Ombudsman, of his being required to put in submissions and then the finding out what the final result of the Ombudsman's inquiry is, then he appears to be informed of the Ombudsman's findings of 14 August and the report was published to the President of the Legislative Council and the Speaker of the Legislative Assembly on 20 August and, presumably, that's when the media got hold of it and then there would have been more publicity A. Yes, your Honour. Q. - that whole sequence of events starting with the complaint to the Ombudsman on or about 7 April 1987 could either represent a further episode of major depression or, if he hadn't fully recovered from the initial episode of major depression, would certainly make the initial episode worse and perhaps perpetuate it? A. Yes, your Honour. Q. Is that fair? A. Yes. I agree with that. Q. Either it was a fresh episode or an aggravation of the earlier episode? A. Yes, your Honour." Mr O'Rourke then attempted to ask the doctor whether the condition evident on 20 August 1997 persisted to the time of his medical discharge, 19 August 2010. The evidence then continues thus: "HIS HONOUR Q. It depends upon persistence of symptoms and no other relevant stressor. A. Yes, your Honour, it is complicated though I believe. But certainly stressors play a - there is close association with significant stresses and the onset of major depressive disorder, as well as the perpetuation of it, as well as with respect to recurrent episodes. And the factors that are associated with those processes are complicated. But in a general sense I believe that even though external stresses can be regarded as causative in an episode of a major depressive disorder; that that depressive disorder then has the capacity to take on - to be a continuing process, even in the situation where the stressor no longer exists so that the brain changes, essentially. And the neuro-chemical balance in certain parts of the brain alters, and then that person may suffer from a continuing chronic major depressive disorder and even if he were to recover and go into full remission, would then be far more predisposed to further episodes of major depressive disorder than he would have been otherwise. So in a nutshell that's probably the best I can do I think. O'ROURKE Q. So the ongoing impact of the original stressor events is what, in that process? A. Is that you have altered brain equilibrium, if you like, that gives rise to ongoing depressive problems. Q. That altered equilibrium is brought about by the stressful events? A. The stressful events play a substantial role. That then leads into the whole issue of what has been called the diathesis of stress hypothesis of mood disorders of a major depressive disorder whereby the assumption is that there is an inherited or genetic aspect to a proportion of people who develop a major depressive disorder whereby they are more interactive with stressors that occur that would then give rise to a depressive illness. But it is not the case with everybody. HIS HONOUR Q. Essentially a major depressive disorder is due to a chemical imbalance in the brain? A. Yes, your Honour. Q. And what you're telling me is that if it becomes chronic it permanently alters the brain chemistry? A. It does. It either permanently alters it or creates permanent vulnerability. O'ROURKE Q. The significance, or the degree, to which a stressor might be seen as causative, is it relevant then to consider other matters other external factors in a person's life, or indeed family history and the like? A. It is. Q. Is the absence of a family history of mental disorder something that would allow you to put greater weight on the stressful events? A. I don't know the answer to that, and I'm not sure that anyone knows the answer to that. HIS HONOUR Q. And it all depends how far you go back with the family history? A. That is correct. Your Honour if a person has a first degree relative who has a history of a major depressive disorder then there is a greater chance he will develop a major depressive illness by the factor of about two - four times."
Mr Hutchings' cross-examination of Dr Klug mirrored his cross-examination of the plaintiff: to emphasise that the relevant stressors were the making of complaints and the ways in which they were resolved. The doctor agreed that the plaintiff's learning of Mrs Morrison's complaint on 6 March 1997 would have raised questions about the plaintiff's reputation, job security, ability to derive income, ability to support his family, self-esteem, self-worth and job prospects. When asked directly about the significance of 6 March 1997, Dr Klug said this: "I can just say it was a significant stressor and then there was an apparent resolution to that stressor." He also agreed that this stressor was likely to make him more vulnerable to further psychological/psychiatric insult. The doctor also agreed that the meeting with DC Lawson at Police Headquarters at College Street on 29 August 1997 (date incorrectly put at T232.10) had "a dramatic effect" upon the plaintiff. Shortly thereafter this evidence was given: "Q. I want you to accept that Mr See, other than in relation to an error in documentation, believes today and has always believed since 2 March that what he did was correct. Do you assume that for me? A. Yes. Q. That the consequence of the police inquiries into his conduct was that what he did was incorrect? A. Are you asking me to accept that? Q. Yes? A. Yes. Q. That the Ombudsman also made a finding that what he did was incorrect? A. Yes. Q. His inability to be able to have the police reach his point of view would be a cause of stress? A. Yes. Q. Particularly in the context of the history he gave you? A. Yes. Q. His inability to control what others were thinking of him is a significant stressor for this man, isn't it? A. Yes. Q. Because one of his great anxieties as a result of 2 March is he cannot control what will happen next in relation to his reputation or his career. Do you agree with that? A. Yes. Q. He is concerned about that lack of control, that powerlessness, and that is one of the things that causes him all of these physical manifestations? A. Yes. Q. They are merely physical manifestations of the anxiety he is experiencing? A. Yes, I agree with that. Q. In the history he told you about - at page 4 - he told you about words that were said to him about going and hanging himself and the like. Do you recall being asked about that before? A. Yes. Q. You were told that he understood at the time that those things were communicated to him in jest. Do you remember being asked that? A. Yes, I remember that. Yes. Q. Then you were asked whether that changed your opinion and you said it did not? A. Yes. Q. Why doesn't - why isn't it important? A. I think that the crucial stressors for him were the original complaint at the time that that occurred, the preliminary finding by the Ombudsman, the ultimate finding by the Ombudsman and the episode with Bev Lawson. Q. Isn't the very significant issue for him the fact that the police aren't looking after him in this inquiry? A. I think that is one of the factors, yes. Q. In fact, it is one of the most significant factors, is it not? A. It is yes, I agree with that." Dr Klug reasserted the eventual proposition contained in his evidence at T239.15 and T240.07. Ms Hutchings then put this question and the doctor gave this response: "Q. This question was put to him yesterday: "If you had gone and seen Deputy Commissioner Lawson and she said to you 'Your note keeping on the night wasn't great, but otherwise we fully support your actions' you would have felt absolutely fine, wouldn't you?" And he responded, "Yes". That is significant, isn't it? A. That is significant, yes." The evidence previously given by the plaintiff can be found at T161.30.

[32]

Conclusions on the medical evidence

The word "stress" has many meanings, as a resort to Shorter Oxford English Dictionary, 5th Ed, Vol 2 p3060 shows. Schmidt's Attorneys' Dictionary of Medicine gives this specialised meaning: "A condition of strain on one's emotions or a state marked by a series of stimuli of an unpleasant nature which tend to distort the normal coordinated physiological and mental processes of the body. The distortion affects the automatic relations between the various organs and glands. When the stimuli are sufficiently strong and persistent, the harmonious coordination of the organs breaks down and the results are comparable to the effects of a physical injury. It may lead to disability, disease, or even death." Some people use the word "stress" to indicate some actual psychopathological state which has a physiological element and could therefore be categorised as an injury. I do not use the words "stress" or "stressor" in that sense, but in the sense that a stress or stressor is a stimulus of an unpleasant nature which has the potential to create a physiological change, to create psychopathology. For what constitutes a psychological or psychiatric injury (there is no difference) see Stewart v NSW Police Service (1998) 17 NSWCCR 202 at [6].
I am bound to accept the infirmity ultimately certified as the cause of the plaintiff's incapacity to exercise the functions of a police officer. I am bound to accept that the plaintiff has been on and from the time of his medical discharge suffering from a "chronic major depressive disorder": Saad v COP (1996) 12 NSWCCR 70 at 75F; Innes v COP (1995) 13 NSWCRR 27; Dive v COP (1997) 15 NSWCCR 336; Gannon v COP (2004) 1 DDCR 380; Hallett v COP (2004) 1 DDCR 580; Larson v COP [2004] NSWCA 126; (2004) 3 DDCR 365; cf Murray v COP [2004] NSWCA 365; (2004) 2 DDCR 31. The advocate for this diagnosis is Dr Klug. "Depression" forms part of the opinions of Mr Adrian Robinson (psychologist), Dr Kan (LMO), Dr Mastroianni (treating psychiatrist), Dr James Maguire, Dr Strum, Dr Walden, Dr Teoh and Dr Phillips (all psychiatrists). Dr Teoh, who was qualified by the administrator of PSF, explicitly conjoined to the diagnosis of PTSD, the condition of Major Depression, which is another way of saying major depressive illness and added to his diagnoses the adjective "chronic", i.e. leaving aside the diagnosis of PTSD, Dr Klug and Dr Teoh are id idem. Dr Klug has supported his opinion on affirmation. I formed a favourable opinion of him in the witness box - he made very appropriate concessions and appeared to answer questions candidly. I have no reason not to accept his evidence and good reasons to accept it. I readily accept Dr Klug's formulation in this case.
In summary, my findings on the evidence as I have canvassed it above, and bearing in mind Dr Klug's opinion, are: 1. the plaintiff, prior to the afternoon of Thursday 6 March 1997 had a number of unpleasant experiences, stressors, but these were insufficient to cause injury: news of Ms Lewis' death of which he was told by his wife when he awoke on the afternoon of Sunday 2 February; ensuing media coverage of the crime; the news conveyed to him through his wife's aunt that Mrs Morrison was going to make a complaint and was in contact with A Current Affair; people talking behind his back or looking at him when he was out and about in the town (these events are discussed in [28] above); his interactions with D Sgt Carter and S Sgt Minehan on 6 March (see [43] above); 2. the first stressor which could constitute injury (and did so) was his seeing Mrs Morrison's entering Ch Insp Leacy's office on the afternoon of 6 March and then his learning from Ch Insp Leacy that she had made a complaint and that the complaint could not be "sorted out" then and there (see [43] above). This stressor caused incapacity for work commencing when the plaintiff was to commence work the next day (see [46] above); 3. the next stressor which was sufficient to cause injury was the commencement of the police investigation on Wednesday 12 March 19997 which would have very forcefully drawn to the plaintiff's attention the seriousness of the complaint: these events are described in [50] above and also see [43]; 4. events on and between 14 March and 17 March 1997 led to an alleviation of the plaintiff's distress and his return to work on 17 March 1997. I accept that if nothing further had occurred, which directly affected the plaintiff, his psychiatric pathology would have been transient; 5. events between 7 April 1997 (when Mr Tink MLA complained to the Ombudsman, leading to further media coverage) and the plaintiff's being served on or shortly after 1 May 1997 with the provisional report of the Ombudsman up until 14 August 1997 (when the plaintiff received the Ombudsman's final report of 20 August 1997), whilst they caused no fresh injury, prevented the plaintiff's recovery from his earlier injury or, in other words, prolonged the psychiatric condition or prevented the plaintiff's recovery; 6. the plaintiff's reading of the Ombudsman's report was another injury to his psyche, causing immediate decompensation and incapacity for work; 7. the release of the Ombudsman's report on 20 August 1997, the ensuing media coverage, the interview given to the media by both the COP and the Ombudsman and the ensuing furore constituted further injury to the plaintiff's psyche; 8. the plaintiff's interaction at Police Headquarters with both AC Adams and, in particular, DC Lawson and the results of that interview constituted further stressors which were injuries to the plaintiff's psyche; 9. the plaintiff's symptoms have not fully abated and he has remained partially incapacitated for all forms of work and it is now accepted that he is no longer capable of performing the duties of a police officer even though he had worked as such between 23 September 1997 and 8 April 2009; the events of 8 April 2009, together with the histories given to most medical practitioners, indicate the reasons for the worsening of the plaintiff's condition on 8 April 2009 and a, or perhaps, the reason why there was no recovery was because there was a running sore or open wound: the dispute between the plaintiff and the defendant about his entitlement to HOD benefits, a dispute, seen by the plaintiff as the defendant's maintaining that the plaintiff had "done wrong", a proposition the plaintiff cannot accept; this has perpetuated the condition. There is no "hard" evidence to support the proposition that the plaintiff had a genetic predisposition to developing the certified infirmity. However, if he did so, it would not be a relevant consideration as vulnerability is irrelevant in causation in workers compensation: Kooragang Cement Pty Ltd v Bates (1999) 35 NSWLR 452; 10 NSWCCR 796, per Kirby P (as he then was) at p 463G/p 810D. Even if there were a genetic predisposition, the facts of this case were clearly that the disposition was activated by the aftermath of the events of 2 March 1997.

[33]

Principles

Before turning to the task I set myself in [6] above, it is important to consider some basic principles. Workers compensation is, in theory, a "no-fault" scheme. It was first introduced by the Chancellor of the German Empire ("the Second Reich") Otto von Bismarck on 6 June 1884: "Accident Insurance Law." There was a perceived need to lure German workers from their bucolic jobs into the German cities to assist in industrialisation and to ensure wage levels and thus inhibit emigration to the New World. The following has been attributed to him at the time of the adoption of this legislation: "The real grievance of the worker is the insecurity of his existence; he is not sure that he will always have work, he is not sure that he will always be healthy, and he foresees that he will one day be old and unfit to work. If he falls into poverty, even if only through a prolonged illness, he is then completely helpless, left to his own devices, and society does not currently recognize any real obligation towards him beyond the usual help for the poor, even if he has been working all the time ever so faithfully and diligently. The usual help for the poor, however, leaves a lot to be desired, especially in large cities, where it is very much worse than in the country." This Law placed the burden of insurance on employers. Benefits included up to two-thirds of wages earned by a worker who was totally incapacitated and the repayment of medical expenses. It is accepted that this legislation was the origin of the British legislation of 1897 which was the progenitor of workers compensation legislation in the UK and in Australia: Hill and Bingeman, Principles of the Law of Workers Compensation, 1981, Law Book Co Ltd p1. See:whttp://www.businessinsurance.org/the-rich-history-of-workers- compensation, and From Strict Liability to Workers Compensation, [2003] 36 N.Y.U.J. Int'l. L & Pol 53.
Since workers compensation is a "no-fault" scheme, an injured worker does not need to prove negligence, nuisance or any other tort committed by his employer, or by another person for whom his employer is vicariously liable, nor need he prove breach of his contract of service or e.g. breach of any industrial award or agreement which might govern his employment. An injured worker needs only to prove an injury arising out of or in the course of his employment and, since 1 January 1997, that his employment was a substantial contributing factor to the injury. A corollary of this general proposition is that it is no defence to the injured worker's claim that he has himself been guilty of (contributory) negligence, nuisance or other tort (including some deliberate torts) or of breach of contract or of his industrial award or agreement. If the worker prove what he must, then the only defences are those provided by the statute: in this case sections 9A, 11A, and 14 ("Conduct of worker etc"/serious and wilful misconduct/wilfully self-inflicted injury). No defence was pleaded under s 14, nor argued: cf Holovinsky v COP (No 2) (2006) 4 DDCR 122 commencing at [339]. A defence of "serious and wilful misconduct" is defeated if the worker prove that as a result of the injury he suffered "serious and permanent disablement".
Some of the case law suggests that "gross misconduct" can defeat a claim for workers compensation. However, this is but a short hand way of saying that the worker's act or conduct took him outside the course of his employment and/or that the injury was not causally related to the employment. Some examples of these situations are: 1. a worker injured in an altercation with his work colleague, instigated by the injured worker, for a reason unconnected with his employment: the injured worker took himself outside the course of his employment: Stojkovic v Telford Management Pty Ltd (1998) 16 NSWCCR 165; 2. a worker who was injured after he and his supervisor made a bomb to throw as a prank to frighten other workers but the bomb accidentally exploded before it was thrown causing injury to the worker and his supervisor: the worker "in using the employer's explosives for a purpose entirely foreign to his employment … remove[d] him from that employment": Dew v Maher (1996) 14 NSWCCR 56 (CA) at p 63E; 3. a prison officer deliberately touched the breast of a female colleague, an act that could be described as both sexual harassment and indecent assault. The lady made an official complaint and there was a departmental inquiry which led to the male prison officer's developing a psychological injury: as the male officer's injury was casually related to his sexual harassment it did not arise out of his employment and he took himself out of the course of his employment to commit the act: Charnock v Department of Corrective Services (1993) 25 NSWCCR 193; 4. a member of the NSWPF and of the PSF was medically discharged on account of anxiety/depression. It was held that this infirmity arose out of circumstances in which, under instructions from his superior officer, he lied to the Internal Police Security Unit about a drug investigation and seizure in which he was involved. Geraghty CCJ (as he then was) held that the member's lying and the maintenance of his lie subsequently took the member outside the course of his service and did not arise out of his service: Schinnerl v COP (1995) 11 NSWCCR 278.

[34]

Did the certified infirmity arise out of the plaintiff's service?

It ought to be clear from my findings in [110] above, that all that occurred to the plaintiff from 2 March 1997 onwards is causally related to the shift that the plaintiff completed at approximately 6.35am on that day. The complaints made by Mrs Morrison and Mr Tink MLA are about what the plaintiff did, and in particular, did not do on that shift. There is no suggestion that the complaints were about the plaintiff's doing something which he was not "required, expected or authorised to do" to carry out his work: the "Humphry Earl Ltd v Speechley" test (1951) 84 CLR 126 at p 133 per Dixon J. There is no suggestion that the plaintiff was on a "frolic of his own" when he received information from Mrs Morrison at the police station and failed to take any immediate action on it. It is to be recalled that Super O'Neill, who conducted the police enquiry, distilled the issue as "police failure to act promptly on information supplied by a member of the public (taxi driver) about an assault on two females and a possible missing female in the early hours of 2 March 1997 in the Lithgow township" and, as far as the Ombudsman was concerned, the issue relating to the plaintiff was "whether police promptly responded to the concerns for the safety of a young woman who was possibly missing…" There is no suggestion that the plaintiff failed to act because he was "doing his own thing" - a modern way of saying "on a frolic of his own" e.g. wanting to watch a late movie on television, having an extended tea break, finishing reading his novel, listening to the radio, tinkering with his car or having a nap. The plaintiff's position was that he was attending to other duties and the circumstances existing at the time (ARG's being in custody), police resources at the time and the Patrol Commander's direction not the work "one out" at night, prevented him from pursuing any course other than that on which he was then engaged. The essence of the allegations made is that the plaintiff had his priorities wrong, not that he was not engaged in his duties. Allegations of inefficiency, of inadequate response, of incorrect decision-making, of lack of timeliness, of indecision or of negligence are all allegations about how the plaintiff was carrying out his duty and arise out of that duty. There is the necessary causal relationship. The adverse media coverage is also causally related to what the plaintiff did or did not do.
I have found that the certified infirmity results not from what occurred on 2 March 1997 ending at 6.35am but from the subsequent complaints and enquiries and the outcome of those enquiries. However those relate to what occurred on the shift which I have just discussed: the factual situation is completely analogous to that which existed in Charnock v Department of Corrective Services (supra) but that which triggered the enquiries in the present case is very different to what triggered the enquiry in Charnock's case.

[35]

Did the certified infirmity arise in the course of the plaintiff's service?

Between 6pm Saturday 1 March 1997 and 6.35am on Sunday 2 March 1997, the plaintiff was rostered for duty at Lithgow Police Station. He attended the shift and worked during this period. He was at the police station, or in the police car, in his uniform doing things which he was required, expected or authorised to do to carry out his duty. What took him outside the course of his service? The simple answer is: nothing. None of the allegations made against the plaintiff could be seen as taking him outside the course of his employment. One can envisage situations which might do so, but none is available in the current matter. Such an allegation might be that the plaintiff knew Ms Lewis or her family and had a personal animus against her or them and deliberately chose not to act on Mrs Morrison's information because of that animus: that would amount to a dereliction of duty for personal reasons which could take the plaintiff out of the course of his employment. The facts of the current matter do not disclose anything which suggests that the plaintiff abandoned the course of his service, that, so to speak, he "took time off from the job" for a personal reason, or for a reason unconnected with his duty.
The plaintiff was in the course of his employment on 6 March when he saw Mrs Morrison enter Ch Insp Leacy's office and a little later learned from Ch Insp Leacy that she had made a complaint about the plaintiff's conduct. 12 March was an RDO but the plaintiff was required by his superiors to attend the police station to make a report and to be interviewed. In attending to this requirement the plaintiff returned to his duty, put himself back in the course of that duty. On or about 1 May 1997 when he received the provisional Ombudsman's report the plaintiff was on duty at Katoomba Police Station. The same occurred on 14 August 1997 when he received the Ombudsman Report. On each occasion the plaintiff was in the course of his employment. On 29 August 1997 the plaintiff was on sick report but, in obeying the direction to attend Police Headquarters, he placed himself on duty and was in the course of his employment. On 8 April 2009 when he received his solicitor's email at work, the plaintiff was in the course of his employment: he was at work, dealing with a work-related matter, a matter which was incidental to his service as a police officer, a causal element which could not take him out of his employment. The various injurious events which caused the plaintiff's certified infirmity all arose in the course of his service as a police officer.

[36]

Substantial contributing factor

At [6] above I set out the issues in the case, the issues which must be established by both the plaintiff and the defendant. Thus far I have found issues (i)(a), (i)(b), and (i)(c) in favour of the plaintiff. The remaining issue that the plaintiff must prove is identified as (i)(d): that the plaintiff's service as a police officer was a "substantial contributing factor" to the certified infirmity. Section 9A as enacted, and as it was throughout 1997 until amended in 1998, provided: "9A No compensation payable unless employment substantial contributing factor to injury (1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. (2) The following are examples of matters to be taken into account the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination): (a) the time and place of the injury, (b) the nature of the work performed and the particular tasks of that work, (c) the duration of the employment, (d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment, (e) the worker's state of health before the injury and the existence of any hereditary risks, (f) the worker's lifestyle and his or her activities outside the workplace. (3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following: (a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment, (b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury. (4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies." In subs(1), the words "a … contributing factor" have always been understood to import some causal relationship between the employment and the relevant injury but a causal relationship less than "arising out of the employment".: Favelle Mort Ltd v Murray (1976) 133 CLR 580 per Mason J at 598 and see also Barwick CJ at 585 and Stephen J at 594. (Leave to appeal to the Privy Council was refused.) As to the meaning of "substantial" RP Meagher JA said in Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; (2001) 22 NSWCCR 46 at [16]: "Many judges have spent a great deal of time and difficulty analysing and pondering the meaning of the word "substantial". But this word is a plain English word which is understood by anyone who is not a judge. Nor have the endless judicial lucubrations on the word contributed to anyone's understanding of it. And nobody in their senses would regard a cause which could be correctly categorised as very 'minor' as 'substantial'." I am, perhaps, a principal lucubrator: see Stewart v NSW Police Service [1998] NSWCC 57; (1998) 17 NSWCCR 202 between [68] and [81]. I maintain the position that "substantial" has two usages one a qualitative one and the other a quantitative one. In what I have quoted from Meagher JA it is clear that his Honour was applying the quantitative use of the adjective. The Court of Appeal has, however, enjoined the use of synonyms. The present law on this topic is contained in the joint judgment of Allsop P, Beazley and McColl JJA in Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; (2009) 75 NSWLR 503; (2009) 7 DDCR 75 at [82]: "First, and perhaps most importantly, the word 'substantial', must be given effect. It is a word of ordinary English meaning. It is a word of evaluative concept. The word substantial has been said to be not only susceptible of ambiguity, but also to be a word calculated to conceal a lack of precision. Which of the various possible shades of meaning the word bears is determined by the context: IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14; 83 ALJR 585 at [154] 617 per Gummow, Hayne and Heydon JJ. Here, the concept and purpose of the introduction of s 9A was to remove the possibility of compensation for injury with only a 'remote or tenuous connection with work'. This was the purpose the amendment: see the Second Reading Speech at [34] above. We would endorse the separate comments of Meagher JA and Davies AJA in Dayton v Coles Supermarket. As Meagher JA said, something which is minor is not substantial, or, as Davies AJA said, 'substantial' as it appears in s 9A means "in a manner that is real and of substance" and does not apply where, as a matter of practical reality, the contribution of the employment to the injury was of, or had, 'little substance'. We agree with his Honour that it is not useful to search for or use other terms, such as 'large', or 'weighty', or by way of further example, other concepts such as 'predominant'. We consider that to do so may carry the vice of introducing concepts with different nuances from the words used by the legislature and which would take the meaning of the word beyond that needed to fulfil the purpose of the provision in its legislative context. In this respect, we prefer the views of Davies AJA in Dayton to the views in the extempore judgment in Bulga, which did not refer to Dayton and to the views of Mason P in Mercer. The words of the statute should be adhered to: 'a substantial contributing factor'. The 'proper link' in the legislative context was a causal connection expressed by the words 'a substantial contributing factor', meaning one that was real and of substance. Given the conflict in the existing authority (Mercer, Bulga and Dayton), we think it important to clarify this issue."
At this time I can leave aside the content of subs(2). Subs(3) is very poorly drafted. It would have been better drawn thus: (3) A worker's employment is not to be regarded as a substantial contributing factor to the worker's injury merely because: (a) (i) the injury arose out of the worker's employment, or (ii) the injury arose in the course of the worker's employment, or (iii) the injury arose out of and in the course of the worker's employment, or (b) the worker's incapacity for work [etc] resulted from the injury. See Muscat v Woolworths Ltd [2000] NSWCC 16; (2000) 20 NSWCCR 283 at [15]. Prior to the decision of the Court of Appeal in Mercer v ANZ Banking Group Ltd [2000] NSWCA 138; (2000) 48 NSWLR 740; (2000) 20 NSWCCR 70, a number of my then colleagues and I were of the view that this subsection again required that the injury must again always arise out of the employment (ibid at [11]). Mercer was eventually overruled in Badawi's case (supra) at [83], [113], and [141]. Badawi was upheld in Watson v Qantas Airways Ltd [2009] NSWCA 322; (2009) 75 NSWLR 539 and in Da Ros v Qantas Airways Ltd [2010] NSWCA 89. The plurality in Badawi said this: "83 Secondly, we respectfully disagree with Mason P's observation (notwithstanding that Beazley JA agreed with it at the time) that the causal requirement in s 9A is less stringent than that in s 9 (as read with s 4). If it were, there would be no point in s 9A extending to both limbs of the definition of injury. We have explained the source of Mason P's views in the comments in Favelle Mort on a different phrase ("a contributing factor"). As Mason P observed in Mercer, there is an incongruity in having a double causation test, one in s 9 and one in s 9A. However, the legislature, in seeking to remedy the lack of causal connection with employment that the second limb of s 4 has, that is, "in the course of employment", must be taken to have seen the need to ensure that the connection of the employment with the injury under either limb was "substantial". Had it restricted the s 9A requirement to "the course of employment" limb, it is possible that the required connection with the employment would have been different, depending upon which limb of s 4 was engaged. Notwithstanding that the legislative consequence is cumbersome to a degree, the intention is clear. 84 Mason P's observation in this regard is also inconsistent with the Second Reading Speech in which the Attorney-General referred to the test in s 4 as being "the weaker test", although, as we have said, whether that is so in a particular case will depend on the facts. This is not to use the Second Reading Speech to formulate the meaning of words used by Parliament. Sufficient strength and utility comes from the Second Reading Speech in its identifying the mischief to which s 9A was directed: the confining of the causal relationship from "arising out of" or "in the course of" by requiring employment to be "a substantial contributing factor". 85 It should be said, however, that there may be circumstances where the factors considered necessary and sufficient to satisfy the test "arising out of employment" for the purposes of s 9, are sufficient to satisfy the test in s 9A. Whether that is so will depend on the facts. Both are factual questions. The question under each section is differently expressed and must be considered separately. It is not sufficient to find that injury arose out of "employment" and to thereby be able to conclude that the employment concerned was a "substantial contributing factor". Such a reasoning process is expressly proscribed by s 9A(3)."
Section 9A concerns causation. The employment must be a substantial causative factor to the injury. Applying the terms of PRSA, the police officer's service must be a substantial cause of the certified infirmity. When I ask myself what non-work cause is identified in the current matter, I can only point to factors personal to the plaintiff. I turn now to consider those factors.

[37]

Factors personal to the plaintiff

On 2 September 1997, Mr Robinson administered a Symptom Inventory Checklist to the plaintiff. The only complaints that it records the plaintiff having prior to Ms Lewis' murder were: 1. Not being able to express or show my feelings: very often or practically all the time. 2. Extreme sensitivity to noise: often or sometimes. The latter complaint is irrelevant for present purposes.
At [79] above, I quoted part of Dr Mastroianni's first report to Dr Kan made on 24 March 1998 after at least seven consultations. Dr Mastroianni refers in what I have quoted to the plaintiff's "premorbid personality of being a perfectionist with high expectations of himself and others and a need to please others." I also pointed out his reference to the plaintiff's "rigid thinking style". As a result of the personality trait which Dr Mastroianni identified, he believed the plaintiff found it extremely difficult to cope with what he perceived to be unfair criticism of his actions on 2 March 1997 resulting in anger from the perceived injustice.
At [82] above I quoted the opinion of Dr James Maguire who saw the plaintiff for the defendant in 1 February 1999. Dr Maguire did not believe that there were any personal or private matters that played a part in the plaintiff's psychiatric disorder.
At [85] above I quoted from Dr Strum's report of 7 August 2000. I then explained the view that whether the matters identified by Dr Mastroianni ought be classified as Obsessional Personality Disorder or merely as an obsessional personality trait was "an interesting question." That is a question which I am now called upon to consider.
At [103] above, I commenced to discuss the opinion of Dr Jonathan Phillips. Dr Phillips was of the opinion that the plaintiff had some obsessional personality traits but was, nevertheless, a man "of normal emotional fortitude." I also quoted par 116 of the Doctor's report in which he specifically stated that there was no personality disorder.
Dr Klug did not identify any obsessional personality traits, let alone an Obsessional Personality Disorder and when he gave evidence was not questioned about such matters.
Every human being has a personality. Blakiston's Gould Medical Dictionary, 4th edition (1979) provides this definition of, or explanation of, "personality": "1. The totality of traits and the habitual modes of behaviour of the individual as they impress others; the physical and mental qualities peculiar to the individual, which have social connotations. Regarded by psychoanalysts as the resultant of the interaction of the instincts and the environment." Taber's Cyclopedic Medical Dictionary, 12th edition, 5th printing (1975) provides this: "The unique organisation of traits, characteristics, and modes of behaviour of an individual, setting him apart from other individuals and at the same time determining how others react to him. Personality refers to the mental aspects of an individual in contrast to physique." Schmidt's Attorneys' Dictionary of Medicine provides this definition: "The sum total of the qualities, defects, type of reaction to stimuli (e.g. annoyances), moods, sense of humour, etc which distinguish a particular person from others." We all have personality traits. Some people can distrust or be suspicious of others, but that does not mean that they are suffering from a paranoid personality disorder. Some people have a restricted range of emotional expression, but that does not mean they have a schizoid personality disorder. Some people disregard the rights of others, but that does not mean they have an anti-social personality disorder. Some people seek attention from others, but that does not mean they suffer from a histrionic personality disorder. Some people have great pride in themselves and scant regard for others, but that does not mean they are suffering from a narcissistic personality disorder. Some people are socially inhibited, or feel inadequate at times, or are sensitive to criticism, but that does not mean they suffer from avoidant personality disorder. Some people are submissive, or like to cling to another or others, or want to be taken care of, but that does not mean they have a dependent personality disorder. Some people exhibit patterns of preoccupation with their jobs or hobbies or particular projects, or can be described as perfectionists, or seek to control others, but that does not mean they suffer from obsessive-compulsive personality disorder. Indeed, some personality traits are thought to be highly desirable for some occupations. Over the last 22 years I have heard many psychiatrists tell me from the witness box that obsessive compulsive personality traits can be found in many barristers and most judges!
In the current matter I do not accept that the plaintiff has ever suffered from an Obsessional Personality Disorder. That was a formulation of Dr Strum that has not been accepted by any other psychiatrist in these proceedings: Drs Mastroianni, Maguire, Teoh, Klug, and Phillips. There is no suggestion that such a diagnosis was made by Dr Walden (see [91] above) and I know from Dr Phillips report of 18 May 2012 that Dr L Lee, psychiatrist, prepared a medico-legal report dated 27 February 1998 and that Dr Lee did not make any psychiatric diagnosis (par 73). I do, however, accept that the plaintiff has some obsessive-compulsive personality traits as identified by Dr Mastroianni and Dr Phillips, but I also accept Dr Phillips' formulation that the plaintiff was a man of normal emotional fortitude, that is, his obsessive-compulsive personality traits did not render him susceptible to develop the certified infirmity, the same infirmity could have been suffered by another who did not have such traits, if the other were subjected to the same stressors. I am wholly cognisant of the likelihood that Dr Phillips included his view of the plaintiff's emotional fortitude because of the provisions of the Civil Liability Act 2002, section 32, which provides: "32 Mental harm-duty of care (1) A person ("the defendant" ) does not owe a duty of care to another person ("the plaintiff" ) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff." Guidance as to the meaning of the concept of "normal fortitude" can be found in the judgment of Gleeson CJ in Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 where his Honour said; "Furthermore, there may be something about the vulnerability or susceptibility of a particular plaintiff that makes it unreasonable to require a person to have in contemplation the kind, or perhaps the degree, of injury suffered. In the context of remoteness of damage, it is established that a tortfeasor must take a victim as the victim is found; but we are presently concerned with whether there is a duty of care, and whether a tort has been committed. Putting to one side cases where a defendant knows, or ought to know, of the peculiar susceptibility of a plaintiff, the law has established what Brennan J described in Jaensch v Coffey as "an objective criterion of duty". The variety of degrees of susceptibility to emotional disturbance and psychiatric illness has led courts to refer to "a normal standard of susceptibility" as one of a number of "general guidelines" in judging reasonable foreseeability. This does not mean that judges suffer from the delusion that there is a "normal" person with whose emotional and psychological qualities those of any other person may readily be compared. It is a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of harm to them, or to expect strangers to take care to avoid such harm. Such people might include those who, unknown to a defendant, are already psychologically disturbed. That idea is valid and remains relevant, even though "normal fortitude" cannot be regarded as a separate and definitive test of liability." It should be noted, as far as the last statement of the Chief Justice is concerned, that the Civil Liability Act 2002 received the Royal Assent on 18 June 2002 and commenced on 2 March 2002 (section 2), but sec 32 was inserted by Act No 92 of 2002 which received the Royal Assent on 28 November 2002 and commenced on 6 December 2002, and the judgment in Tame was delivered on 5 September 2002. The process that led to Act No 92 of 2002 (Civil Liability Amendment (Personal Responsibility) Act 2002) started long before the judgment in Tame: see Villa, Annotated Civil Liability Act 2002 (NSW), 2nd Edition, 2013 p10 et seqq. The concept of a "person of normal fortitude" is to identify a person with a susceptibility to developing a psychiatric illness in response to a particular stressor. Persons of normal fortitude may react in different ways to a particular stressor, based on their personality traits, e.g. with guilt, depression, anxiety, anger etc. However, the matter can be approached in another way, and I shall do so in due course. However, it is instructive to consider how workers compensation law dealt with personal susceptibility prior to the enactment of section 9A.

[38]

(A) British case law

The British case law is found in three different places in Willis's Workmen's Compensation Acts 1925 to 1943, 37th Edition, July 1945 (Butterworths): (i) commencing at p18 when discussing whether death or incapacity arose from a disease or the worker's employment; (ii) commencing at p127 when discussing successful claims in proving that there was an accident causing death, injury or industrial disease; and (iii) commencing at p240 when discussing whether the death or incapacity "results from" the injury. There are a number of cases which need to be considered. 1. Wicks v Dowell & Co Ltd [1905] 2 KB 225. This was a claim under the Workmen's Compensation Act 1897 (UK). The worker was employed in the unloading of coal from a ship. He was required to stand on a wooden stage close to the edge of a hatchway through which the coal was being brought up from the hold. He was required to look down into the hold and regulate the descent and ascent of the bucket within the hold by using a long pole and by giving hand signals to the crane driver. He had an epileptic fit and fell from the wooden stage into the hold and sustained very serious injuries. He was refused compensation by the Greenwich County Court, but was successful on appeal. The worker was required to establish that he sustained "injury by accident arising out of and in the course of his employment", the same test as under the Workmen's Compensation Act 1925 (UK). The issue debated was whether the injury arose out of the worker's employment. Collins MR said: "Then did the accident arise out of the man's employment? When we get rid of the confusion caused by the fact that the fall was originally caused by the fit and the confusion involved in not dissociating the injury and its actual physical cause from the more remote cause, that is to say, from the fit, the difficult arising from the words "out of employment" is removed. How does it come about in the present case that the accident arose out of the employment? Because by the conditions of his employment the workman was bound to stand on the edge of what I may style a precipice, and if in that position he was seized with a fit he would almost necessarily fall over. If that is so, the accident was caused by his necessary proximity to the precipice, for the fall was brought about by the necessity for his standing in that position. Upon the authorities I think it is clear: an accident does not cease to be such because its remote cause was the idiopathic condition of the injured man; we must dissociate that idiopathic condition from the other facts and remember that he was obliged to run the risk by the very nature of his employment, and that the dangerous fall was brought about by the conditions of that employment." Cozens-Hardy LJ said: "It seems plain to me on the authorities that what happened here was an "accident." It is also plain, and indeed is not contested, that the accident happened in the course of the employment; the only difficulty is whether it arose "out of" the employment; on the whole I am of opinion that it did. If I could adopt the view that has been pressed upon us, that the employer Is not liable for the remote consequences of a disability which the workman brings with him to his work, I should come to a different conclusion; but I think the truer view is that a man always brings some disability with him: it may be a disability arising from age; it may be of some other nature. A workman who is put in a dangerous position in order to do his work is more liable to an accident by reason of the disability which he brings with him than he would otherwise be. Again, an old man is inherently more likely to meet with an accident than a young one, but an employer could not excuse himself on the ground of the man's age. The same consideration applies to a tendency to illness or to a fit, and if a man with such a tendency is told to go to work in a dangerous position and there meets with an accident, the accident none the less arises out of his employment because its remote cause is to be found in his own physical condition." 1. Clover, Clayton & Co Ltd v Hughes [1910] AC 242; (1910) 3 BWCC 275 (HL). On 9 March 1909, Edward Hughes was assisting in the construction of a condenser bath. He was tightening a nut with a spanner and pressing down on the spanner. His left foot slipped forward and he fell backwards. He tried to recover from the fall, made an exclamation and fell on his back, striking his head. He had died. At post mortem it was found that there was a very large aneurysm of the aorta, which had burst. The County Court Judge held that the aneurysm was so advanced that a very slight exertion or strain would have been sufficient to bring about the rupture. Nevertheless, he found that the strain put upon the worker by the exertion of tightening the nut caused the rupture of the aneurysm. He awarded compensation to Hughes' dependents. An appeal to the County Appeal was unsuccessful as was the appeal to the House of Lords. Lord Loreburn LC said at p245/p279: "It seems to me enough, if it appears that the employment is one of the contributing causes without which the accident which actually happened would not have happened; and if the accident is one of the contributing causes without which the injury which actually followed, would not have followed." Lord McNaughten said, at 3 BWCC 282,: "The fact that the man's condition predisposed him to such an accident seems to me to be immaterial. The work was ordinary work; but it was too heavy for him. It must be taken on the finding of the learned County Court Judge that the accident was unexpected by the workman. It can hardly be supposed that he intended to kill himself. The fact that the result would have been expected, or indeed contemplated as a certainty, by a medical man of ordinary skill if he had diagnosed the case, is, I think, nothing to the purpose." 1. Flanagan v Ackers Whitley & Co (1926) 19 BWCC 399. Lord Hanworth MR (with whom Warrington and Scrutton LJJ concurred) delivered this judgment: "This is a case which, like many others of the same class, gives rise to the question of whether or not there has been an accident within the meaning of the Act, and whether that accident was the one which caused the death. The facts are quite short and simple. A man working with his son down in the mine finds that the back wheels of a tub left the rails; he assists his son by lifting up first one wheel and then the other of the tub, which at the time contained something like 12 cwt. of coal. The son was pushing the tub at the time. As soon as the tub had been put on the rails by the deceased man and run along, the son came back to his father, the son being in charge of the tub, and when he came back - or indeed at the very moment when he used this exertion - he put his hand up to the right side of apparently either his stomach or breast and complained of some pain. He went home that day (he was working on the night shift), and he did not eat much breakfast. He slept all right during the day, he went to work in the night shift on the following night, and did not work as well as he usually did during that shift; at the conclusion of the shift he walked home, and in the course of transit to his home he had to cross over a bridge, which meant he had to go up some slight incline. On this second occasion, going home, he tumbled down dead, or was found dead. It was discovered on the post-mortem that his heart was in bad condition, that the walls were steadily and increasingly becoming thinner, and that death was due to the fact that the right auricle had burst owing to the walls becoming as thin as they had. What was the evidence, not unnaturally ask the respondents, of any accident? No doubt it is true that in the course of working away with these tubs, which contained coal, which run on lines, you have not infrequently to replace the wheels. That is hardly treated by any one as an accident, but at any rate it is a fortuitous event; no one can say when the wheels will run off, the whole run off and that is a fortuitous happening calling for the exercise of increased energy and some exertion on the part of the deceased man. Then we have the evidence of one of the doctors who says this: "The dilation of the right auricle is due often to lung trouble; I think the heart had been gradually thinning for years; any strain would cause it to go. Lifting a weight might seriously distend it so as to make the previous condition more critical. He might then drop down." Now, as I understand, the learned County Court Judge has found the heart was brought into a more critical condition by reason of this fortuitous happening of the wheels coming off the line; we have got what appears to be an accident within the interpretation which is put upon such circumstances in Fenton v Thorley & Co., [1903] A.C. 443; 5 W.C.C. 1; in Stewart v. Wilsons & Clyde Coal Co. (1902), 5 F. 120; and two cases to which we have referred, namely, Clover Clayton & Co. v Hughes, [1910] A.C. 242; 3 B.W.C.C. 275, and a case to which Lord Justice Scrutton has drawn my attention, Treasure v The Cardiff Collieries Co., Ltd. (1920), 13 B.W.C.C. 28, where Lord Sterndale makes observations very relevant to this case on pp. 30 and 31. It appears to me, after considering those authorities and paying attention to the argument which has been fairly enough presented to us by Mr. Greaves Lord, that we have got a case which falls within those decisions to which I have referred, a case in which there was evidence before the Country Court Judge on which he could come to the conclusion he did; and that being so, there is no appeal from his decision which is open to us. The facts are to be found and determined by him. He has found those facts and he has determined, quite within the limits of his province, that there was an accident which was the cause of the death of the deceased man. In these circumstances the appeal must be dismissed with costs." 1. Dotzauer v Strand Palace Hotel Ltd (1910) 3 BWCC 387 (CA). The headnote contains the relevant facts: "Dotzauer (the applicant) was employed by the respondents as a washer-up at the Strand Palace Hotel, at a wage of 18s a week and his board. On October 9, when he commenced his employment, he arrived at the hotel at about mid-day and was put to wash up greasy dishes and plates in a tank. The hot water he was given had in it a quantity of washing soda and soft soap. He felt a tingling in his fingers, and blisters appeared on them. He went on washing that day until mid-night, and on the following day, a Sunday, he started washing up between 11 and 12 noon. He found the work hurt his fingers, and on asking for a lighter job he was given another tank at which to wash up tea-cups and saucers; finding that his fingers were still hurting, he changed the water. On the Monday he came to work, but as he could not continue to do so he was dismissed by the respondents' foreman. It appeared from the medical evidence that the applicant had an abnormally sensitive skin, and that his fingers had become much inflamed from washing up in the hot water with soda and soap. His nails came off, and the County Court Judge found that he was incapacitated for four and a half months. The County Court Judge at Westminster found for the respondent but the scullion's appeal to the Court of Appeal was allowed. Cozens-Hardy MR said at p389: "The principle which applies to all cases of this kind has been very often stated in words, which I am almost ashamed to repeat, that the workman in these cases carries a disability with him, and the mere circumstance that a particular man, in doing work arising out of and in the course of his employment, meets with an accident which a perfectly healthy man would not have met with, is no answer at all. He takes his disability with him, and it is none the less an accident on that account. Now here this man was a washer-up in the scullery of a hotel. He was unaware of the fact, if fact it was, that he was the subject of rather an obscure disease which affected his skin in the sense of making it extremely sensitive. He was washing up crockery of some kind, in hot water no doubt, but not in unduly hot water, in which there was soft soap and caustic soda; and in the course of that, after he had been an hour or two engaged in this work, his hands became greatly inflamed. He changed this work the next day, I think, but the consequence was that there was great inflammation in his hands, his nails came off, and for upwards of four months and a half he was completely disabled from doing his work. Was that an accident? I should have thought that in every popular sense of the word it was an accident. This man on a particular day, by putting his hands, in the course of his business, into this hot water, in which soft soap and caustic soda were used, got an inflamed hand, resulting in the loss of his nails and got it immediately after putting his hands in the water. That was an accident, I should have thought, in every sense of the word. I cannot draw any distinction in principle between this case and the stoker case in the House of Lords, that of Ismay, Imrie & Co. v Williamson, [1908] A.C. 437; 1 B.W.C.C 232. Indeed, I think this is a stronger and easier case to deal with than that case. There, the man, by exposing his head to the heat of a furnace, met with a heat-stroke, when an ordinary man would not have suffered anything serious from what he did. If that was an accident arising out of and in the course of his employment, this seems to me to be still more so. … I think there was something in the course of this work which was injurious to this man - not to an average man, but to this man - and there was something in the nature of the employment in which this man was engaged which exposed him to danger." Buckley LJ through this case was governed by Ismay, Imrie & Co v Williamson (supra), as had Cozens-Hardy MR. Kennedy LJ concurred with both their Lordships. 1. Maskery v Lancashire Shipping Co Ltd (1914) 7 BWCC 428 (CA). Maskery was 19 years old when he signed on as fourth engineer on the SS Egremont Castle. He joined the ship at Algiers on 17 April 1913. The ship was bound for Singapore. At 2pm on 28 April, when the ship was in the southern portion of the Red Sea he was on duty in the engine room, when he collapsed with heat stroke. The temperature in the engine room was 114°F. He was carried on deck and treated medically, but died. He had been on duty for an half hour when he collapsed. The captain of the ship considered that, judging by his outward appearance, he was physically unfitted to stand the heat normally encountered "on the Eastern trade". The County Court Judge made an award of compensation to Maskery's mother. Cozens-Hardy MR and Swinfen Eddy and Pickford LJJ dismissed the appeal. Their Lordships applied the same reasoning applied in Ismay, Imrie & Co v Williamson (supra) 2. McFarlane v Hutton Bros (Stevedores) Ltd (1920) 20 BWCC 222 (CA). The relevant facts are set out at the commencement of the judgment of Lord Hanworth MR: "This is an appeal from the learned County Court Judge, who has before him the problem which has caused difficulty in many cases besides the present one. The man McFarlane was employed as a stevedore, and he was working in the after-hold of the ship. At that time they were engaged in unloading the ship of some iron ore which was in the hold that had to be unloaded by a big tub which was lowered into the hold; it was carried on a chain, and then had to be deflected from the perpendicular in order to avoid the top of the tunnel which covered the shaft of the propellers; it had to be deflected in order that it might be lowered right down to the place where the iron ore was. The height of the tunnel was, I think, ten feet, and there was therefore a certain point in the transit of the tub from the deck of the ship down to the bottom of the hold, during which the men who were handling the tub had to exercise a certain amount of energy in deflecting the tub so that it cleared the tunnel. The man was working with some colleagues in doing this. As well as deflecting the tub when it was resting in proximity to the iron ore it was their business with shovels to put the iron ore into the tub. They began work at an early hour in the morning, and they were working in the ordinary course. This workman was a regular man, able to do his work, and apparently enjoyed his work. He never ailed, his wife said, and he worked sometimes three shifts and sometimes five, and he never complained of his work. We know from subsequent events that he was at the time suffering from a disease of the arteries what is called the disease of the coronary arteries of the heart, which at some time or other, sooner or later, will bring on a sudden attack and cause death to the man who is suffering from it. Now, as the facts are reported, the man, while he was engaged in pushing or pulling the tub into the right position, suddenly felt ill, and he said, "Oh!" which the learned County Court Judge thought, and I think rightly, was attributable to the fact that he had a heart attack. Upon having the heart attack he ceased work for a moment, and either stood or sat at the side, but presently, recovering himself somewhat, he endeavoured to put three or four shovelfuls of the iron ore into the tub. Again he stopped, and felt ill. Then the man had to go up a ladder on to the top of the tunnel, and there he say more or less huddled together, but obviously in distress, if not in pain. Eventually he was laid into a recumbent posture, with some clothing under his head, but apparently he seemed to be dead at the time that that was done, or in the act of dying. At any rate by the time the doctor arrived it was found that he was dead. At the most the space of time that passed between the first expression of "Oh!" and his being found dead was not more than half an hour." At p227, his Lordship said: "The true fact appears to be this: that if there is an unexpected personal injury arising from some physiological condition set up in the course of the work, that may be described as an accident even although there is at the moment nothing unusual or particular which sets it up. That is the basis of the principle or authority which we have to apply" Later, at p229 his Lordship said: "It appears to me that the evidence given before the learned County Court Judge was this: that there may be a strain which can cause sudden death - even a small strain - and that with the condition in which the man's arteries were he might have fallen dead at any moment, and one doctor says that he would have expected if any sudden strain occurred beyond the physiological limit, then the heart would be unable to get enough blood, and the man would die, and he says that the whole of the morning's work, and the work of the days before, contributed to the death. Another doctor thinks that a sudden exercise brings on death with the disease. It appears to me upon that evidence, rightly directing one's mind in law, that it is unnecessary to find a sudden strain exterior to the causes which effected the death. The evidence before the learned County Court Judge was such that he would have and must have found in favour of the dependant if he had directed himself aright, and if he had not sought to find what it was unnecessary to find." Atkins and Lawrence LJJ agreed, each giving their own reasons for doing so. 1. Treloar v Falmouth Docks & Engineering Co Ltd (1932) 25 BWCC 247 (CA) affirmed Treloar v Falmouth Docks & Engineering Co Ltd [1933] AC 481; [1933] All ER 298; (1933) 26 BWCC 214. The worker was a dock labourer. He was 46 years old and of small stature. He was engaged in loading the SS Highland Castle at Falmouth. He began work at 6am on 25 May 1931. He was discharging bags of sugar and also loading bags of china clay which weighed from one to two cwt. They were lifted by two men, when they were lifted, to a height of 3 feet or 4 feet. The worker lifted 2 or 3 of those bags. There was a break for "breakfast" from 8.30 to 9.00am. After the break the worker was engaged in removing and packing large bags swung into the hold by a crane. The loads swung in by the crane weighed between 11 cwt and 1 ton. When these loads were swung into the hold it was necessary for the labourers to steady them. This was usually done by 3 men. The worker did one such steadying job by himself and was "jerked", pulled by the load but not off his feet, as he let the load go. A quarter of an hour later there was a pause in the work, and the worker lay down on some sacks. He raised his hand above his head and, with a hook, stuck it in a sack to put that sack in a particular place. As he was doing so, his hook fell and he fell face forward onto the place where the sack was to be placed. He had died. There was no post-mortem. The death certificate certified that the worker's death was due to "myocarditis and syncope." The certifying doctor died before the hearing. The differential diagnoses as to the cause of death were "myocarditis" leading to some derangement of the muscles of the heart [which we would now probably call myocardial infarction], a rupture of an aortic aneurysm, angina pectoris [which would also probably lead to infarction] and dyspepsia. Because of the elapse of about 15 minutes between the "jerking" incident and the worker's death, the County Court Judge did not accept that it was the cause of the worker's death. He went on to say this: "With regard to the second accident, if the mere raising of the hand with the intention of striking a sack which is said to constitute it can properly be described as an accident, which I doubt, I have still to find that death resulted from it. It seems to me to be no more than a physical movement which a man might make at any time whether he was working or not, and that there was nothing fortuitous about it. But supposing that was an accident, I do not think it can be said to have been proved affirmatively that death resulted from it when it might equally well have resulted from a number of other causes, e.g. indigestion, or even from the natural course of the disease. I come to this conclusion with regret, because the applicant has lost her husband, on whom she was totally dependent…" The widow appealed to the Court of Appeal, which found in her favour. Lord Hanworth MR relied on the dictum of Lord Loreburn LC in Clover, Clayton & Co Ltd v Hughes which I have quoted above, and also on McFarlane v Hutton Bros (Stevedores) Ltd to which I have referred. Slessor and Romer LJJ agreed, giving their own reasons. The employer appealed to the House of Lords but that appeal was dismissed. Lord Buckmaster said: "If a man who is engaged in doing work, and as part of that work and in the course of it does something which he might do outside, but which, none the less, happens in the course of and arising out of his work and it causes his death, the accident has arisen out of and in the course of his employment. I put to counsel in the course of this case an illustration which appears to me perfectly sound: Supposing a workman is engaged in putting books on the library shelves, owing to the fact that the action of lifting his arm causes a strain upon his heart which his heart cannot bear and he falls down dead, none the less the accident arises out of and in the course of his employment." Lord Warrington of Clyffe, Lord Tomlin and Lord Wright concurred. Lord Russell of Killowen agreed with the Court of Appeal. 1. Partridge Jones & John Paton Ltd v James (No 2) (1932) 25 BWCC 328, affirmed Partridge Jones & John Paton Ltd v James [1933] AC 501; [1933] All ER 316; (1933) 26 BWCC 277. This was yet another case of an underlying infection-caused, cardiac condition where the worker's death occurred 10 minutes after he stopped performing work ("drossing") that was described as "laborious" and causing greater strain than his usual work. The widow's medical evidence stated that had this work not been done, the worker might have lived "for some years". The employer's medical evidence was that he could have died at any moment but he might have lived longer if he had not worked on the day of death, but that might have been only one hour longer. A County Court Judge sitting at Pontypool found for the widow and her three children. The same Court of Appeal as sat is Treloar's case dismissed the employer's appeal on the day after it dismissed that appeal. The same House of Lords which heard the appeal it Treloar's case affirmed the Court of Appeal decision four days after its decision in Treloar's case. Exactly the same principles were applied at each appeal level as in Treloar's case. 2. Yet another case, a Scots case, to the same effect, based on the same principles in Lochgelly Iron & Coal Co Ltd v Walkenshaw [1935] SC(H.L.) 35; (1935) 28 BWCC 231. 3. Whittle v Ebbw Vale, Steel, Iron and Coal Co Ltd [1936] 2 All ER 1221; (1936) 29 BWCC 179 is, perhaps, an even more extreme case. The worker was aged 61 years. He was a "grease boiler". On 20 January, earlier than the date of the worker's death, he had complained to this doctor of pain in the region of his heart and the doctor came to the conclusion that the worker's heart was "in a bad state" and he advised the worker to rest. The worker rested for a few days and then insisted, against his doctor's advice, on returning to work. He resumed work on a shift commencing at 7pm and was found dead at a place he was required to perform his work at 5.40am. In cross examination the doctor said: "He might have died at any moment; he might have died in the street or in bed. Strain or stress would be the likeliest exciting cause. Stooping was very prejudicial to him. Any work would affect him in that condition. … Work was prolonged exertion, and he was not fit for work of any kind." The County Court Judge found for the widow. The employers appeal was dismissed by Slessor LJ with whom Mackinnon and Goddard LJJ agreed. The reasoning adopted was the same as in Treloar's case and James' case. 1. Wilson v Chatterton [1946] KB 360; [1946] 1 All ER 431; (1946) 39 BWCC 39. The facts appear in the first paragraph of the Court of Appeal's judgment which was given by Scott LJ: "In the present case the deceased workman met with an accidental death by drowning. At that moment he was on his employer's premises doing his employer's work in accordance with his duty. He was working in a beet field. There had been wet weather and the furrows in the field had become filled with water. He was an epileptic. This was known to his employer but we do not think that knowledge increases, or that ignorance would diminish the employer's liability. He had an epileptic fit and fell face downwards at a place where there was a rut half full of water. His death was due to asphyxia. No doubt owing to his fit he was unable to move his face out of the water. The place was dangerous to him, though there would have been no danger to a normally healthy person." The County Court Judge found for the employer following a decision of the Court of Appeal (Lander v British United Shoe Manufacturing Co Ltd (1933) BWCC 41) which this Court of Appeal (Scott and Somervell LJJ and Vaisey J) said should now be considered bad law. At 434D of the All England Report, Scott LJ said this: "The statutory language contains no words which qualify its absolute generality. Any person, man, woman or child, who is a workman, if employed is entitled to compensation for injury accidentally caused, which arises out of and in the course of the employment. There is no pre-requisite of a medical examination to qualify him for admission to the benefit of the Act. There is no hint of an exclusion from these benefits of any person because at the moment of injury he is suffering from disease, or any physical or mental disability which may render him more prone to accidental injury arising out of his employment." His Lordship went on to say: "What the court has to interpret is the whole of the complex conception expressed in the first two and a half lines of sect 1(1), and in our view it is dangerous and misleading to break that substantive provision up into bits, then to attempt to ascertain the meaning of each bit, and finally to add - or fail to add - the bits together in order to get the meaning of the whole. We infer that sick men and partially unfit and partly disabled men in employment were intended by Parliament to get the benefits of the Act just as much as the hale and hearty and perfectly fit men; for any intention of Parliament to exclude them must have found expression, and there is not a hint of it." It is of interest to note that the High Court of Australia declined to follow Lander's case in 1933 (see below).

[39]

(B) Australian case law

The late, learned Prof. CP Mills in the first edition of his work "Workers Compensation (New South Wales)" 1969 (Butterworths) collected a number of cases concerning "Personal susceptibility to risk" in a note [33] commencing on p153. In the second edition (1979) that was continued, the note now numbered [52] commencing on p91. When the second edition was replaced with the current loose-lead service that note was numbered [2015.51] but that has long since been removed and placed in a binder entitled "Superseded Annotations to the Workers Compensation Act 1987". The following authorities seem to be pertinent: 1. Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504; [1934] WLR 15. Like the first and last of the British cases I have cited, this case involved an injury from a fall caused by a "seizure". The law of this State at the time contained the conjunctive test ("arising out of and in the course of the employment"). The worker had been employed for over 16 years as the minder of wool-carding machines. He was a diabetic and for about three years prior to the fall his diabetes was controlled by twice daily, self-administered insulin injections. On 17 June 1932, the worker had an insulin injection. An "insulin reaction" caused him to fall at work. He came into contact with iron guard rails which were part of one of the wool-carding machines he minded, causing fractures to two ribs and scalp and lip wounds. The worker was incapacitated by those injuries for 5 weeks. Perdriau J awarded compensation ([1934] WCR 1), the Supreme Court (Street CJ, Davidson and Halse-Rogers JJ) allowed the employer's appeal but the High Court (Gavan Duffy CJ, Rich, Starke, Dixon, Evatt and McTiernan JJ) allowed the worker's appeal. The Privy Council refused leave to appeal from the decision of the High Court: [1934] WCR 23. Gavan Duffy CJ, Rich, Dixon, Evatt and McTiernan JJ delivered a joint judgment. At 511 they said: "The workman was a diabetic, and his faint arose solely from his diabetic condition. When he fainted he was walking, as his employment required him to do, between some wool-carding machines along a platform protected on each side by iron guard rails. He fell against one of the guard rails and fractured two ribs. Upon these facts it is undeniable that he received personal injury arising in the course of his employment. The controversy is whether it arose out of the employment. The New South Wales statute, unlike the British statute, does not require that the injury shall be by accident: the condition is that the injury, not "an accident," shall arise out of and in the course of the employment. It is, therefore, unnecessary to inquire if the fall was an accident. Further, the precise question is not whether the fall arose out of the employment, but rather, whether the injury sustained in falling arose out of the employment. In fact his ribs were broken because when he fell he struck the guard forming a part of the plant at which he was set to work. If the question were asked: "Why was the workman injured when he fell?" the answer would be: "Because his body struck part of the plant at which he was at work." The nature and extent of the hurt he suffered was thus determined by the fact that he was at work and that his work brought him into proximity with a particular structure capable of inflicting the injury, a structure which is not part of the ordinary surroundings of daily life but is part of the equipment of the employer's manufacturing premises, and is distinctively industrial. The conditions which combined to bring about his injury, therefore, include the existence, configuration and situation of the particular piece of equipment, and the workman's presence near it. These were conditions which the employment established. The true question appears to us to be whether these conditions of the employment so materially contributed to the injury that it can be said to have arisen out of the employment." After reviewing relevant authorities, in particular the Napier earthquake case (Brooker v Thomas Borthwick and Sons (Australasia) Ltd [1933] AC 669; [1933] NZLR 1118) and declining to follow Lander's case, they said: "We think that if an additional element or consideration is needed before it can be said that a workman's injury arises out of his employment when the injury is occasioned by his falling, through causes personal to himself, against some physical object where he is at work, that additional element or consideration is to be found, not necessarily in risks of injury inherent in the place, but also in the character of the thing, physical contact with which causes the injury. If the workman's fall brings him into contact with something which, like plant or machinery, is peculiar to the work or occupation, and is not common both to industrial and private life, then the reason for his suffering includes the important circumstance that but for doing the particular piece of work which he was in fact performing he would not have experienced that particular sort of injury. We think that the reasoning disclosed by the citations we have made from Lord Sumner, Lord Haldane and Lord Atkin requires the conclusion that, because the form, nature and extent of the injury sustained when the appellant fell were determined by a characteristic feature of the premises where he was obliged to work, a feature, in this case, characteristic of the conditions of employment and not to be found in ordinary life, the employment materially contributed to the injury, which accordingly arose out of it." This was characterised at the time as a "locality risk". 1. James Patrick & Co Pty Ltd v Sharpe [1955] AC 1; [1954] 3 All ER 216. In December 1950, the worker, whilst travelling between his place of abode and his place of employment in Melbourne suffered auricular fibrillation as a direct result of which he died. His widow claimed compensation. The Victorian Act at the time made compensation payable for "any employment personal injury by accident arising out of or in the course of employment." A relevant journey injury by accident was deemed to arise out of or in the course of employment. The Workers Compensation Board stated a case for the Supreme Court. The Full Court (Herring CJ, Lowe and Scholl JJ) found that the worker suffered an "injury by accident": [1953] VLR 206. The appeal to the Privy Council was dismissed. In the Supreme Court, Herring CJ said at p210: "The Board made no finding as to the nature of the auricular fibrillation that caused the worker's death, but a reference to standard medical works shows that auricular fibrillation is a disorder or disturbance of the heart function, a functional failure of the heart muscle. And whether such a disorder or failure can properly be regarded as an "injury" under the Act is a question with regard to which no assistance can, in my opinion, be desired from the decision in Willis's Case for such a disorder or failure is a very different thing from the lesion that occurred in that case. The matter is, however, concluded in my opinion against the respondent by the definitions contained in the Act. For the word "injury" by definition means, inter alia, "any disease", and "disease" by definition includes "any physical … disorder defect or morbid condition". And I think it is clear that the auricular fibrillation suffered in this case is comprehended by the words "physical disorder"." The advice of the Board was delivered by Lord Reid. His Lordship concluded the advice thus: "Then the appellant founded on Hetherington v Amalgamated Collieries of W.A. Ltd, a case from Western Australia, where, as in Victoria, it is necessary to prove injury by accident but the injury need only arise out of or in the course of the employment. In that case it was found that the man's exertion at his work had contributed to his death and so there was an external event, and the point at issue in the present case was neither decided nor specifically considered. But the judges of the High Court made an elaborate examination of the authorities, and it was pointed out for the appellant that, if they had thought that an external event was unnecessary and that a sudden physiological change by itself could be an injury by accident, it would have been much easier to decide the case on this ground. That may be true, but their Lordships cannot infer from it that any of the learned judges had formed a definite opinion that a sudden physiological change by itself could not be injury by accident. Evatt J pointed out (62 CLR at p 337) that the appeal could be disposed of merely by reference to the accepted principles laid down in the English cases, and that, where it was necessary, the introduction of the disjunctive form of expression would require further consideration, but in that case this was not necessary. In that case, there was nothing accidental about the event which led to the man's death occurring when it did. His disease was such that ordinary exertion at his work led to his death. The only thing which could be said to be accidental or unexpected was his sudden death at that particular time. On that matter, Dixon J said (ibid, at p 332): "Surprising as it may seem, such a cause of death falls within the definition of injury by accident arising out of the employment. As a matter of common speech, the expression 'injury by accident' appears inappropriate and inapplicable. But a long course of judicial decisions has extracted from the expression latent implications which make the test of the employer's liability independent of such things as external mishap, traumatic injury and unusual or unexpected incidents of work or duty." The appellant accepted that passage as stating the law accurately. It was admitted that in Victoria it is now unnecessary to have an external event of an accidental or unexpected character, or an event connected with the man's work or, in a case to which s 5(5) applies, connected with his journey. But it was argued that it is still necessary to have an external event of some kind without which the physical breakdown would not have occurred when it did. It was admitted that the event need only have been the last straw and, indeed, counsel for the appellant ultimately admitted that it may not be necessary always to prove just what the event was. If the man has died and there is no direct evidence of what happened just before the physical breakdown, it was admitted that it would be enough if the Workers' Compensation Board were satisfied by medical evidence that in all probability the breakdown would not have occurred at that particular time unless something external had happened to cause it to occur then. That being so, it is very difficult to suppose that it could have been intended to retain the need to prove some external event in every case, and their Lordships would only be prepared to accept the appellant's contentions if the words used by the legislature compelled that conclusion. But, far from compelling that conclusion, in their Lordships' judgment the terms of the statute point almost irresistibly to the opposite conclusion. The first case in which it was necessary to decide the present question was Willis v Moulded Products (Australia) Ltd. In that case, the worker died as a result of cerebral haemorrhage which occurred while he was travelling to his work. His physical condition was such that the strain of his normal living or activity of any kind was likely to cause such a haemorrhage, but its occurrence at the time when it did occur was unexpected. It was argued that there could be no injury by accident unless there was shown to be some agency or some circumstance extraneous to the worker which brought about the injury but the Full Court held that the employer was liable to pay compensation. That case is indistinguishable from the present case, and the present case was brought before the Full Court with the object of having the decision in Willis' case reconsidered. But the court decided to follow the decision in Willis' case. In both Willis' case and the present case the authorities were fully reviewed particularly by Sholl J and their Lordships agree with the decisions. Their Lordships will, therefore, humbly advise Her Majesty that this appeal should be dismissed. The appellant must pay the costs of the appeal." 1. Kavanagh v Commonwealth (1960) 103 CLR 547. The worker was a storeman employed in the stationery section of the Postmaster-General's Department in Melbourne. He was a Commonwealth employee. On 14 January 1958, a Tuesday, after about half an hour's work packing stationery, he left his work place to go to the convenience. When he returned to his work place he said he felt ill and had diarrhoea. Suddenly he vomited. He was taken home and, on the journey, seemed to collapse. It was found that he had ruptured his oesophagus in the violent vomiting and that rupture led to his death on 20 January 1958. His widow claimed compensation under the Commonwealth Employees' Compensation Act 1930. That Act provided compensation for "personal injury by accident arising out of or in the course of employment." The County Court of Victoria refused to award compensation but the High Court allowed the widow's appeal. At p553 Dixon CJ said: "The first question is whether the rupture of the gullet in these circumstances is to be considered an injury by accident. In my opinion it must be so considered. It is a sudden destruction of tissue by force or pressure. It is true that the force or pressure was not exerted from without the body, but that I think makes no difference nor does it make any difference if it occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection: Clover Clayton & Co. Ltd. v. Hughes (1910) AC 242 , per Lord Loreburn L.C. (1910) AC, at p 246 , per Lord Macnaghten (1910) AC, at p 249 , per Lord Collins (1910) AC, at pp 255, 256 ; McArdle v. Swansea Harbour Trust (1915) 113 LT 677 ; Flanagan v. Ackers Whitby & Co. (1926) 19 BWCC 399. But this is not the real difficulty in the case. The real difficulty lies in the question whether the accident consisting in the rupture of the gullet arose in the course of the employment. Clearly it occurred during hours of work and at a point of time when Kavanagh, having desisted from his actual task to go to the convenience, had returned and was apparently undecided whether he could resume the performance of his work or was unfit to do so. The expression "course of the employment" in the law of workmen's compensation covers an incident such as that of the employee's retiring in obedience to a call of nature and of momentarily standing by considering his capacity to resume his duties. In one sense of the word "in" therefore the injury by accident occurred "in the course of the employment". But there was no connexion, or at all events no known connexion, between the employment and the fit of vomiting or the failure of the gullet to relax or expand to discharge the vomitus. It might have occurred just as well at any other time, at any other place and in any other immediate external conditions." After postulating some causal connection less than "arising out of the employment", his Honour went on to say: "But for myself I think that the words "arising in the course of the employment" do not connote or imply even so slender a causal connexion. It is possible that those who substituted "or" for "and" were not alive to the consequences of the change and in particular to the manner in which the alternative "or in the course of the employment" might operate to compensate sufferers from injuries unconnected with industry if and only if the injuries occurred during working hours." Fullagar and Menzies JJ reached the same conclusion. 1. Many of the cases in which a worker had a pre-existing personal susceptibility to injury concern cardiac conditions ("heart attack cases") including the rupture of aortic aneurysms and cerebral conditions ("strokes") including the rupture of cerebral aneurysms. In this country they are generally dealt with under the "disease provisions" of the relevant State's Act. The authorities are legion. It is not necessary to review their development. The position ultimately reached in this State prior to the enactment of sec 9A was laid down in MGH Plastic Industries Pty Ltd v Zickar (1996) 187 CLR 310; (1996) 71 ALJR 32; (1996) 13 NSWCCR 680. The worker was 21 years old when, shortly after his lunch break, he collapsed at work. He was taken to hospital where he was diagnosed as having had the rupture of a cerebral aneurysm which caused an intracerebral clot and the occlusion of the right anterior cerebral artery (a cerebro-vascular accident or "stroke"). Thompson CCJ held that this was injury simpliciter within par (a) of the definition of injury in WCA, and that the rupture was not a disease. A majority of the Court of Appeal (Meagher and Powell JJA) allowed an appeal by the employer: (1994) 34 NSWLR 617; (1994) 10 NSWCCR 543. There was a strong dissenting judgment given by Priestley JA. The majority held that the event in question was a "disease" injury and that, therefore, the worker must prove that his employment was a contributing factor to the event, which had not been considered by Thompson CCJ. The worker's appeal to the High Court was allowed by majority (Toohey, McHugh, Gummow and Kirby JJ). Toohey, McHugh and Gummow JJ delivered a joint judgment. At p329 their Honours said: "The layout of the definition in s 4, which differs from its predecessor, certainly suggests that the first inquiry is whether there has been personal injury, a term which itself is not defined and which therefore must be understood according to ordinary concepts. For present purposes, par (c) can be put to one side. That exclusion is explained by the existence of other legislation dealing expressly with dust disease. That par (a) begins with the word "means" and par (b) begins with the word "includes", suggests that par (b) is designed to give an extended meaning to "injury" by going beyond personal injury and to a disease in the circumstances prescribed. In particular, there is no rule of construction which requires inclusive words to be read as exclusive of any elements which otherwise fall within the meaning of the word or expression being defined, and no occasion with this legislation for the imposition of such a construction. It is clear, at least since Kavanagh v The Commonwealth, that there may be injury by accident although the injury is not attributable to any external agency but results from some force or pressure exerted from within the body. The Act with which we are concerned does not require that there be an accident, only that there be injury." Their Honours then considered Kavanagh's case and then Commonwealth v Hornsby (1960) 103 CLR 588 and continued: "In Hume Steel Ltd v Peart, Latham CJ said: "There is a distinction, according to the common use of language, between getting hurt and becoming sick. The former would be described as an injury and the latter would generally not be so described. But it requires little analysis to show that an injury may be either external or internal. It appears to me to be difficult to draw any satisfactory distinction between the breaking of a limb and the breaking of an artery or of the lining of an artery. One is as much an injury to the body, that is, something which involves a harmful effect on the body, as the other. Each is a disturbance of the normal physiological state which may produce physical incapacity and suffering or death. Accordingly, in my opinion the detachment of a piece of the lining of the artery in the present case should be held to be an injury." The personal injury upon which the appellant relies is the rupture of the arterial wall. There can be no doubt, having regard to the medical evidence and the authorities to which we have referred, that this event constituted personal injury and it is not in dispute that what occurred took place in the course of the appellant's employment. Equally it is not in issue that the aneurism itself, that is the swelling of the blood vessel, was a disease from which the appellant was suffering prior to the rupture. Does the existence of this disease take the matter into par (b) of the definition so that the appellant must show his employment to have been a contributing factor?" They then considered Hockey v Yelland (1984) 157 CLR 124 and the cases referred to therein, to Darling Island Stevedoring & Lighterage Co Ltd v Hussey (1959) 102 CLR 482, to Favelle Mort Ltd v Murray (1976) 133 CLR 580, Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 and O'Neill v Lumbey (1987) 11 NSWLR 640. They then said: "In Accident Compensation Commission v McIntosh [1991] 2 VR 253 the Appeal Division of the Supreme Court of Victoria held that it was open to the Accident Compensation Tribunal to find that the sudden rupture of blood vessels and consequent cerebral haemorrhage, arising from an arteriovenous malformation, was a "physical injury" under the relevant Victorian statute. Murphy J, with whom Crockett and Cummins JJ agreed, pointed out that there was general agreement that if some external agency precipitates a rupture, it is a physical injury. But, as his Honour observed: "If the rupture is due to blood pressure, arteriosclerosis, arteriovenous malformation, or any other congenital or diagnostic aetiology, it is nonetheless a rupture - something quite distinct from the defect, disorder or morbid condition, which enables it to occur." We respectfully agree with this observation and, in our view, nothing in Hockey v Yelland or in any other decision of this Court precludes its acceptance. We would allow the appeal, set aside the decision of the Court of Appeal and dismiss the appeal to that Court." Kirby J thought that Slazengers (Australia) Pty Ltd v Burnett [1951] AC 13 (PC), Hussey's case (supra) and Hockey v Yelland (supra) ought be overruled. His Honour expressed this conclusion: "The result is that this Court should reject the reasoning adopted by the Privy Council in Slazengers. Subsequent authorities which have accepted that reasoning should be reconsidered. If leave is required, it should be given. No longer is there a dichotomy between "personal injury" in its full sense and "disease injury" within the additional part of the definition. A worker is entitled to succeed if he or she can bring a claim within either head of recovery. Logically, the first question to ask, including in cases which might otherwise be classified as manifestations of a "disease", is whether, notwithstanding that manifestation, the case falls within the primary definition of "injury" as a "personal injury arising out of or in the course of employment". In that context, the word "injury" should not be given a narrow meaning. It should have an ample application, in no way read down because Parliament, additionally, has provided a separate head of recovery for cases of work-related diseases. It is not to the point to complain that this will lead to adventitious outcomes depending upon the nature of the precise "injury". That is inherent in the definitions contained in the 1987 Act. As Powell JA pointed out in the Court of Appeal, it has been a feature of workers' compensation law virtually since the first statute was enacted. The approach to the definition of "injury" which I favour does not necessarily mean that every catastrophe connected with a progressive disease will fall within the definition of "personal injury", primarily so defined. Whether, in the case of a progressive disease, leading inevitably to a sudden or identifiable pathological change, it can be said that such change constitutes a "personal injury" can be left to determination on a case by case basis. It must be assumed that Parliament intended the extended definition, enacted to cover cases of "disease" within s 4(b) of the 1987 Act, to have some operation. Whatever may be that operation in other cases, the facts of the present case sustain the conclusion of Judge Thompson that the worker suffered a "personal injury". The sudden tear which caused the haemorrhage and the clot constituted a "personal injury". It was no less so because it was internal. It is enough that the "injury" took place in the course of the employment. It is not necessary to show that it arose "out of" such employment. The suggestion that it was necessary to establish a causal connection represented a judicial attempt to set back the clock to a time before Parliament made the phrase disjunctive." It ought be noted that in ANZ Banking Group Ltd v Mercer [2000] NSWCA 138; (2000) 48 NSWLR 740; (2000) 20 NSWCCR 70, Mason P (with whom Meagher and Beazley JJA agreed) said at [10] to [12] that the reason for the enactment of s 9A was this decision. 1. Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; (2000) 200 CLR 286. This is the most recent (as far as I am aware), authoritative application of the principle established in Zickar. The worker collapsed on 9 September 1992 whilst working as a cleaner. Medical evidence established that a series of pathological events had occurred which resulted in a stroke. For some years before this event she had been diagnosed as suffering from rheumatic mitral valve disease. The medical evidence was unanimous that he employment was not a contributing factor to the contraction of that disease and that it had not aggravated or accelerated the underlying condition. A magistrate held that she was entitled to compensation, but an appeal to the Supreme Court (Crispin J) was allowed. An appeal to the Full Court of the Federal Court (Higgins Finn and Merkel JJ) restored the original award: (1998) 87 FCR 526. The High Court affirmed the decision of the Full Court. The ACT legislation mirrored that of this State but included a definition of injury: "any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development" and "the aggravation, acceleration, or recurrence of a pre-existing disease." That definition is consistent with the meaning of "disease" given of the case law: see O'Neill v Lumbey (1987) 11 NSWLR 640 at 645G; (1987) 3 NSWCCR 139 at 146 per Kirby P (as he then was). 2. Read v John Lysaght (Aust.) Pty Ltd [1962] WCR 217. The worker suffered from Paget's disease (osteitis deformans) which causes a deterioration in the bone structure, rendering the bones more susceptible to fracture than ordinary bone. Some nine years earlier the same leg fractured when he was on his way to work. On 6 August 1961 he was walking from the watchman's office to the electrical compound in the normal course of his work. The worker "went down" and knew that his leg had fractured. Wall J said: "The evidence, to my mind, establishes the fact that, in this instance, the fracture was caused by the physical act of making a forward step with the affected leg, that is, that the bone broke, not solely because it had been eaten away, as it were, by the Paget's disease, but because it was weakened by this disease so that the physical act of taking an ordinary step caused it to break." His Honour accepted that "upon first principles" this was an injury arising in the course of employment. He distinguished Lindeman Ltd v Colvin (1946) 74 CLR 313. He also pointed out that if his view was erroneous, the worker was entitled to succeed under Kavanagh's case.

[40]

Application of s9A to the decided cases

I believe it to be instructive to apply section 9A to the cases that I have just reviewed to observe how they might have fared had section 9A been in force when they were decided. Some of these cases can be conveniently considered together: (a) Wicks v Dowell & Co Ltd Wilson v Chatterton Smith v Australian Woollen Mills Ltd The worker in each of these cases had an underlying condition (epilepsy or diabetes) which rendered him liable to fall after a fit or a faint (vaso-vagal syncope). Each was required to work in a place which offered a particular danger to him. In Wicks and Smith any worker who, for any reason, fell ran the risk in question, of falling into the hold or falling onto machinery or plant which offered a particular risk. They might still recover. However, a person in Wilson's position who was not affected by epilepsy would not have suffered any harm from falling into a pool of water in a furrow in a field. In that case, s9A(2)(e) would be invoked: "the workers state of health before the injury and the existence of any hereditary risks". The substantive risk run by Wilson was his epilepsy, not his work. (b) Clover, Clayton & Co Ltd v Hughes MGH Plastic Industries Ltd v Zickar Kennedy Cleaning Services Pty Ltd v Petkoska Whether the aneurysm is in the aorta or other cardiac artery or in a cerebral artery, it is difficult to see any such case succeeding under section 9A. In Hughes, the County Court judge held that the aneurysm was so advanced that a very slight exertion or strain would have been sufficient to bring about the rupture and the found exertion was the tightening of a nut. In Zickar, the worker did not have to prove any exertion, i.e. prove that his condition arose out of the employment. It is now difficult to see how he could. These cases would fail under s9A(2)(d) and (e). (c) Flanagan v Ackers Whitley and Co McFarlane v Hutton Bros (Stevedores) Ltd Treloar v Falmouth Docks and Engineering Co Ltd Partridge Jones and John Paton Ltd v James (No 2) Lochgelly Iron & Coal Co Ltd v Walkenshaw Whittle v Ebbw Vale, Steel, Iron & Coal Co Ltd James Patrick & Co Pty Ltd v Sharpe These are all cardiac cases. Almost all of them would fail to satisfy the provisions of s9A. Whittle's case would not be arguable: he was unfit to do any work but he went to work and some exertion there precipitated his death. Any exertion may have precipitated his death: s9A(2)(d) clearly applies. In Sharpe's case no causal link was provided between the actual journey and the death, let alone the employment and the death. Although s9A does not apply to journey cases (section 10), there is a special provision regarding such cases: sec 10(1D). In Treloar the relevant exertion was found to be reaching above head height with a hook to snag a sack, a normal incident of the worker's every-day job, and reaching above head height was something he could do outside his employment, in every-day life. This case would be unsuccessful because of s9A(2)(b), (d) and (e). In James, the cardiac condition was caused by infection (syphilis) so s9A(2)(e) looms large. However, it is instructive to consider the medical evidence adduced by each party. If the County Court Judge accepted the worker's medical evidence (but for the exertion or "drossing" 10 minutes before his death he might have lived "for some years"), s9A(2)(d) is not a relevant consideration, but if the judge accepted the employer's medical evidence (but for the exertion preceding his death, he might have lived for an hour or so longer), it would be almost impossible to argue that the employment was a substantial contributing factor to James' death. (d) Dotzauer v Strand Palace Hotel Ltd Dotzauer's skin was clearly sensitive to the chemicals used in washing up. His case would now fail: s9A(2)(b),(c) and (e). Aliter if he had worked for a number of years and his work caused sensitization of his skin to the chemical(s) in questions. Industry caused dermatitis is not uncommon. (e) Maskery v Lancashire Shipping Co Ltd Temperatures of 114°F (45.5°C) are not uncommon in Australia. Travel by ship through the Red Sea was common prior to the 1970s. Most migrants came to Australia through the Suez Canal and the Red Sea, a route also taken by ships of the Royal Australian Navy during World War I and World War II and by the 1st and 2nd AIF. There was no medical evidence adduced at the hearing and it is hard to see how the captain's lay opinion of the worker's fitness was admissible other than as an admission by the employer by whom he might have been employed. (f) Kavanagh v Commonwealth Read v John Lysaght (Aust) Pty Ltd Neither of these cases established any causal relationship between the worker's "injury" and his employment. Neither case could satisfy s9A.

[41]

Applying s9A to this case

Applying s9A(3) to the present case it is insufficient that the plaintiff's certified infirmity arose out of and in the course of his employment and that it resulted from his service as a police officer: see [119] above. At the end of [110] above I cited Kooragang Cement Pty Ltd v Bates (1999) 35 NSWLR 452; 10 NSWCCR 796 for the proposition that vulnerability to injury is irrelevant in causation in workers compensation law. The fact that s9A(3) does not permit such causation to establish a substantial contributing factor again points to vulnerability (or susceptibility) being a relevant matter to consider when determining whether the employment be a substantial contributing factor in any particular case.
Section 9A(2) provides a non-exhaustive list of matters to be considered in determining whether the worker's employment be a substantial contributing factor. I turn to that list of considerations: 1. the time and place of the injury: See my findings at [110] above. The plaintiff's seeing Mrs Morrison's entering Ch Insp Leacy's office on the afternoon of 6 March 1997 and then his hearing from Ch Insp Leacy that Mrs Morrison had made a complaint about the plaintiff but it was not to be sorted out then and there occurred at Lithgow Police Station. Relevant events on and between 14 and 17 March 1997 occurred at the same place. The plaintiff's receiving the provisional report of the Ombudsman of 1 May 1997 and the final report on 14 August 1997 occurred at Katoomba Police Station. The stressors identified at 110 probably occurred when the plaintiff was at home on sick report. The plaintiff's interaction with both AC Adams and DC Lawson occurred at Police Headquarters. The final stressor on 8 April 2009 occurred at Springwood Police Station. 2. the nature of the work performed and the particular tasks of that work: Since his attestation as a probationary constable on 25 June 1979, the plaintiff has only performed general duties i.e. uniformed police work. He was appointed as a Constable of Police on 25 June 1980. On 29 August 1988 he was promoted to the rank of Senior Constable. In short, the plaintiff had prior to 2 March 1997 worked as a uniformed police officer for over 17 years. He had held the rank of Senior Constable for more than eight and a half years as at 2 March 1997. As a senior constable, the plaintiff sometimes worked as shift supervisor/acting sergeant. The relevant evidence is this: "Q. As the years went by when you were a senior constable would there be times when there would be a sergeant on and then times when you would be the senior general duties police officer on? A. Yes. Q. Would you be in charge of the other general duties police officers when there was no sergeant? A. Yes. Q. Could that be for a shift, or a week, or a month? A. It could be for a week or two, it could be a month, or it could be a shift of two at the time. HIS HONOUR Q. There's always a shift supervisor in other words? A. Yes. Q. So either the senior sergeant, or if there's no senior sergeant the most senior senior constable? A. Exactly." 1. Earlier the plaintiff said, when asked about his ambitions: "Well the next logical step would have been sergeant, so I believed I was a good supervisor and I stood a good chance of becoming a sergeant in the near future" 1. I formed the view on the evidence before me that the plaintiff was working fairly regularly as a shift supervisor prior to 2 March 1997 and probably during most of the period that he was Senior Constable. The duration of his service and the type of work he was performing support a finding of substantial contributing factor: he was regularly doing this work and coping with its demands. 2. the duration of the employment: I have considered this in my consideration of par (b). 3. the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment: There is no evidence which could support such a finding. In fact, the evidence points in the opposite direction. The factual matrix which confronted the plaintiff on 2 March 1997 resulted from the concatenation of unusual circumstances: 1. normally there would be two car crews (2 cars each manned by two officers) plus the shift supervisor on a Saturday night in Lithgow: "Q. Was there a standard number‑‑ A. Yes. Q. ‑‑coming into March 1997 of the number of general duties police officers that would be rostered on on a Saturday night? A. Yes there were, it was two car crews plus a supervisor. Q. How many in a car crew? A. Two. Q. There would normally be five general duties police officers on? A. Yes. Q. Would they all necessarily be from Lithgow? A. No, one car crew could be from ‑ made up from our stations, Wallerawang and Portland would make out the second car crew. Q. Would they come and be used effectively in Lithgow? A. They would be in Lithgow until three or four in the morning. I think 3.30 was the time they could head back to knock off at four." 1. However, on this night there was the annual Debutante Ball being held at Portland, which kept one car crew out of Lithgow: see [16] above; 2. three young ladies, Melanie Spillane (aged 23), Kerry Anne Tonkin (aged 23) and Alison Lewis (aged 19) made an informal arrangement to meet at the local swimming pool in the early hours of the Sunday morning; 3. a malefactor, Jay William Short, motivated probably by lust, but harbouring homicidal tendencies, intercepted them. There is no evidence as to the incidence of murder in Lithgow, but one would expect it to be rare; and 4. very shortly before Mrs Morrison spoke with the plaintiff at 3.35 or 3.36am, the one available car crew in Lithgow had arrested another offender and were processing him for a PCA offence at Lithgow Police Station. 1. the worker's state of health before the injury and the existence of any hereditary risks: there is no suggestion that the plaintiff was suffering from any psychiatric or psychological illness prior to 2 March, and indeed 6 March, 1997. There is no family history of psychiatric illness. I have already canvassed the question of the suggestion of personal susceptibility. I do not accept that there was any. I accept that he was a person of normal fortitude. The only thing which should be considered here is the nature of the certified infirmity, "chronic major depressive disorder." This disorder is due to a chemical imbalance in the brain (T223.35). It can be precipitated by an external stressor (T226.50). It can be made worse by an external stressor (T222.03). An external stressor can perpetuate the condition (T222.25). An external stressor or stressors can permanently alter the chemistry within the brain (T223.39). It may be heritable - see the last passage of Dr Klug's evidence which I quoted in [106] above. That is the only thing which might suggest an hereditary risk but if that be a risk, the plaintiff had lived successfully with it for 36 years, doing police work for 17 years. 2. the worker's lifestyle and his or her activities outside the workplace: there is nothing in this case to suggest that either of these matters is relevant in this case. The only thing which might be relevant is the plaintiff's membership of the Lithgow Volunteer Rescue Association - see [8] above, but there is no evidence of his encountering difficulties there or having problems coping with his duties there. As both captain and training officer, the plaintiff would have to interact with other members and there is no suggestion that the plaintiff had any problems interacting with other members or other bodies engaged in similar tasks or in dealing with members of the public. I know of one actual case in which such matters loomed large: a worker had a very degenerate right shoulder; she was right handed; she claimed that her work, which required use of both her arms, caused, contributed to or aggravated, exacerbated etc her right shoulder condition; however, the left shoulder joint was completely normal; the condition of her right shoulder could have been explained the fact that she was a champion darts player. 3. any other matter: the cause of the plaintiff's infirmity is not what he did or did not do on 2 March 1997, but, as I set out at [110] above, the initial complaint made against him and its aftermath. However, complaints can be made against many types of workers and many types of holders of offices of profit under the Crown. It is to be recalled that a constable of police is not a "worker" at common law but the holder of an independent office of profit under the Crown and both "workers" and office-holders can be the subject of complaint, as can be the providers or services: e.g. (workers) sales staff, waiters, cooks and chefs, cleaners, nurses, school teachers; (office holders) police, parliamentarians, magistrates and judges; (providers of services) tradesmen, doctors, dentists, physiotherapists, repairers, builders, bankers etc. There is the necessary causal nexus between the plaintiff's conduct on 2 March 1997, the complaints made and the subsequent investigations.
I have no hesitation in finding as a fact that the plaintiff's service as a Senior Constable of police was a substantial contributing factor to the certified infirmity. I said at the end of [128] that there was another way of approaching the present matter other than considering susceptibility to injury. It is this, and I have alluded to this when considering s9(2)(d): the plaintiff was confronted on 2 March 1997 with an unusual concatenation of events. When confronted by a situation which had the potential to conflict with established practices and procedures he elected to follow the path he knew, the one in which he had been trained, to follow established practices and procedures. After Mrs Morrison's visit to the police station at 3.35 or 3.36 he did not recall Wallerawang 1 as he thought Lithgow 1 would become free before Wallerawang 1 would reach town. He did not have the benefit of hindsight. He did not know whether Ms Lewis was in harm's way, she could have been if she was making her rendezvous with her friends, but she could have abandoned that plan and gone home, or to a party, or met a new or old friend and decided to spend early Sunday morning at such a party or with such a friend. The plaintiff may have made the wrong choice, he may have failed to appreciate all the possibilities, he may have been negligent, he may have been grossly negligent, but he did not abandon his service. In my assessment of the evidence, the plaintiff's service or work as a senior constable of police was the only factor which caused the certified infirmity. At [6] above I identified the issues. The plaintiff has proved the issues he must prove. Before leaving this subject I ought record that I considered two further issues which might have been relevant: (i) whether the plaintiff's training was adequate for his role; and(ii) whether the plaintiff had been promoted one level beyond his own competence (the so-called "Peter principle")? As to the plaintiff's training see [10] and [11] above. As to the plaintiff's experience as a shift supervisor see [10] and 133. Neither of these considerations was raised by Mr Hutchings and one can understand why: the provision of training and the granting of promotions was the employer's, the defendant's, responsibility. The raising of that consideration clearly shows that those two considerations may be appropriate to consider on the question of fault but s 9A concerns causation, not fault.

[42]

Causation by action taken by the defendant?

I turn now to the issues which the defendant must prove to defeat the plaintiff's claim. The first of those issues is whether the certified infirmity was wholly or predominantly caused by action taken or proposed to be taken by the defendant. The relevant stressors commenced when Mrs Morrison made her complaint to Ch Insp Leacy. The defendant, as the person responsible for NSWPF, was required to investigate that complaint. This complaint had initially to be processed by the person to whom it was made, Ch Insp Leacy. At [93] above, I quoted the evidence given by the plaintiff about his interaction with Ch Insp Leacy after Mrs Morrison left either his office or the police station: "I then went to Chief Inspector Leacy's office and said, "Was she complaining about me?" And he said, "Yes." I said, "Can we sort it out here and now?" And he said, "No, the complaint's still coming in and I want to get home to my family at Newcastle."" It is not clear what the Chief Inspector meant by "the complaint's still coming in" but it could relate to a request by him to Mrs Morrison to put her complaint in writing. The plaintiff was clearly upset that the complaint was not dealt with there and then on 6 March 1997. His reaction the next day, seeking medical attention and taking time off work (see [46] above) clearly indicates that. The next interaction between the plaintiff and Ch Insp Leacy was on 10 March 1997 - see [47] above. The formal police investigation of the complaint commenced on 12 March 1997 - see [50] above. That investigation concluded with what I have described as the "first resolution of the complaint against the plaintiff" - see [52] to [56]. At 110 I concluded, on the available evidence, that events on and between 14 March and 17 March 1997 led to an alleviation of the plaintiff's distress and his return to work on 17 March 1997 at Katoomba. I accepted that, if nothing further had occurred, which directly affected the plaintiff, his psychiatric pathology would have been transient.
Was the only stressor during this period (6 to 17 March 1997) the actions taken by the NSWPF? The answer to this question must be "no". An important stressor throughout this period was the media. I first raised the subject of "media coverage" at [28] above. The plaintiff also had drawn to his attention that Mrs Morrison was going to make a complaint and had been in contact with A Current Affair. That was prior to 6 March. About this time "the media circus descended on town". I recited what was reported on A Current Affair on 11 March 1997. The comments made to the plaintiff by DSgt Carter, DSC Kennedy and SSgt Minehan on 6 March, discussed at [43] to [44] clearly indicate that, as far as those work colleagues were concerned, there was adverse media commentary on the police response to Mrs Morrison's report of Ms Lewis' being missing which was being attributed to the plaintiff. When the plaintiff saw Dr Mark Roebuck at Lithgow District Hospital on 7 March 1997, the plaintiff gave a history that "public complaints have been made against patient re aspects of police investigation." The use of the adjective "public" by Dr Roebuck clearly indicates that the complaints were in the public domain, obviously in the media. One must also consider what I recorded at [56] above. A countervailing consideration is that the plaintiff received and acknowledged throughout this period the support of his work colleagues at Lithgow. Nevertheless, I am not persuaded that the plaintiff's mental condition during this period was caused wholly or predominantly by the actions taken by Ch Insp Leacy and then the investigation conducted by Super O'Neill.
The involvement of the media during this period and its effect on the plaintiff's psyche exclude the defendant's actions as "wholly" causing the plaintiff's condition: the defendant's actions could not be the only cause. The adverb "predominantly" was considered by Walker CCJ in Jackson v Work Directions Australia Pty Ltd (1998) 17 NSWCCR 70 at [109] to [112]. At [111] his Honour said: "The adverb "predominantly" appears to me to be used in the sense that the s11A(1)(b) cause was stronger and prevailed over other causes." His Honour relied on the meaning assigned to the verb "predominate" by the Macquarie Dictionary. The new edition of the Oxford English Dictionary provides these definitions: 'predominant': (1) having ascendency, power, influence or authority over others; superior, ascendant, prevalent; (2) more vaguely, more abundant as an element; more frequent; prevailing, prevalent. 'predominantly': in a predominant manner or degree; with superior influence; preponderatingly. The Shorter Oxford English Dictionary (5th edition, 2002) gives these meanings to the adverb: "in a predominant manner or degree; preponderatingly; chiefly."
There is a line of authority in the present Workers Compensation Commission. In Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 Handley ADP said at [24]: "In my view, the ordinary meaning of the words "predominantly caused" in this context is that of mainly or principally caused: see, for example, The Macquarie Concise Dictionary and The Concise Oxford Dictionary." This was followed by Roche DP in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd [2008] NSWWCCPD 96 at [79], by Snell ADP (as he then was) in Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130 at [31], by Roche DP again in McCarthy v Department of Corrective Services [2010] NSWWCCPD 27 at [157] and by O'Grady DP in Allen v Department of Community Services [2010] NSWWCCPD 78 at [88]. It is attractive to gloss the adverb "predominantly" to mean the same as "mainly". However, such presents a problem of construction. It is a rule of construction that, where in the same Act of Parliament and in relation to the same subject matter, different words are used, the Court must see whether the legislature has not made the alteration intentionally, and with some definite purpose: prima facie such an alteration would be considered intentional: per Lord Esher in Guardians of the Parish of Brighton v Guardians of Strand Union [1891] 2 QB 157 at 167. In shorter form, different words in the same statute should be given different meanings. Workers Compensation Act 1926 section 9(1)(b) provided additional weekly payments to a totally incapacitated worker for a wife and/or children who were "totally or mainly dependant for support on the worker". There was very little learning on the meaning of the word "mainly". In the second edition of his work, the late, learned Prof Mills drew attention to Maras v Broken Hill South Ltd [160] WCR 164 and in the supplement to that work in the companion loose leaf service to Commissioner for Superannuation v Scott (1987) 71 ALR 408 in which the Full Court of the Federal Court (Fisher, Spender and Pincus JJ) was called upon to interpret the words "wholly or substantially dependant" and held that "substantially" meant "in the main or essentially". The same test "totally or mainly dependant" was found at WCA s37(4) until its replacement by Act No 53 of 2012 with effect from 1 October 2012. In other words, from 1 January 1996 until 30 September 2012 both "predominantly" and "mainly" were found in WCA.
Having reviewed the dictionaries and these authorities, I prefer to gloss "predominantly" with the adverb "chiefly". To me it means much more than merely 51%, which is where "mainly" usually leads. To predominate something must eclipse each other factor and all other factors. Applying this test to what occurred between 6 and 17 March 1997, I am not satisfied that the defendant's actions, through Ch Insp Leacy and Super O'Neill, was the predominant cause of the plaintiff's mental condition.
The stressors between 7 April 1997 and 19 August 1997 (the day before the release of the Ombudsman's final report) were not caused by any action taken by the defendant. The actions during this period are attributable not to the plaintiff's "employer", the defendant, but to Mr Tink MLA, perhaps Mrs Gee, the mother of Kerry Ann Tonkin, the Ombudsman and the media. By 14 August 1997 the plaintiff was again totally incapacitated: see 110 and (f). Some time was spent in addresses in considering whether the Ombudsman might be considered an "organ" of the defendant but, on reflection, that argument is untenable. It would lead to the proposition that any body having oversight of employer-employee relationship becomes part of that relationship, which might include unions, tribunals, courts and even the police force itself (in other "industries"). Learned Counsel for the plaintiff, Mr O'Rourke, in his written submissions (MFI 7) drew my attention to the case law which points out that the Ombudsman is independent of any body he or she may investigate: Ainsworth v The Ombudsman (1988) 17 NSWLR 276 at 283; COP v Ombudsman (9 September 1994, unreported, Sackville AJ, NSWSC Administrative Law Division); Botany Council v Ombudsman (1995) 37 NSWLR 357 at 367-368 per Kirby P, with whom Sheller and Powell JJA agreed; "K" v NSW Ombudsman & Anor [2000] NSWSC 771 (Whealy J) at [25]-[26].
The next stressor or stressors occurred on 20 August 1997 - see 110. What the Ombudsman did, and what the media did, are not the actions of the defendant. The defendant acquiesced in the recommendations of the Ombudsman publically. Again, I am not satisfied that the stressors of this day were caused wholly or predominantly by the action of the defendant. Absent the acquiescence of the COP, the publication of the Ombudsman's report would have probably generated the same media interest, the same furore as actually occurred. I must return to the event of this day again, when considering another topic, the reasonableness of the defendant's action(s).
The remaining stressors, the events at Police Headquarters on 29 August 1997 and the defendant's handling of his claims for HOD benefits, I accept were wholly caused by actions taken on behalf of the defendant.

[43]

Was the certified infirmity in respect of discipline or performance appraisal?

In Kushwaha v Queanbeyan City Council [2002] NSWCC 25; (2002) 23 NSWCCR 339, I was required to consider what fell within the concept of "discipline" between [147] and [154]. I gave it a wide meaning. There was some fraternal disagreement between Walker CCJ and me about the meaning of "discipline" but that disagreement was only whether the worker's conduct should be seen as a breach of his employment contract or of some industrial award or agreement or, for example, a breach of a rule, regulation of by-law that governed the work being done: Hunt v Department of Education and Training (NSW) (2003) 24 NSWCCR 642. In the current case, there is no argument that what the defendant did in answer to the complaint made by Mrs Morrison was "discipline" as, in effect, her complaint was an allegation of dereliction of duty by the plaintiff. "Discipline" was discussed by Spiegelman CJ in Department of Education & Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206 at [35] and by Sackville AJA in Northern NSW Local Health Network v Heggie [2013] NSWCA 255; (2013) 12 DDCR 95 at [52] but in neither case was the content of what falls within "discipline" discussed.
If I be wrong in categorising what was occurring to the plaintiff (as far as the defendant was concerned) as "discipline", it may fall within the extended meaning of "performance appraisal" provided by Geraghty CCJ (as he then was) in Irwin v Direction General of School Education (unreported, quoted by me in Bottle v Wieland Consumables Pty Ltd [1999] NSWCC 32; (1999) 19 NSWCCR 135 at [31]) and by O'Meally CCJ in Callary v Wyong Shire Council (unreported, quoted by me in Bottle at [34]-[35]) and by Geraghty CCJ in Dunn v Department of Education & Training (2000) 19 NSWCCR 475. In Brady v COP (2003) 25 NSWCCR 58, Armitage CCJ was of the view that adverse criticism of a police officer in a Royal Commission could amount to both "performance appraisal" and "discipline". In the present case, it was not submitted that what was happening between the plaintiff and the defendant up until 29 August 1997 was neither "discipline" nor "performance appraisal".
However, the way the defendant has dealt with the plaintiff's HOD claims can not be said to be either "discipline" or "performance appraisal". The swift answer to this issue is the outcome of these proceedings: if the plaintiff be unsuccessful but the defendant's actions in this regard were justified, they were reasonable. If the plaintiff be entitled to succeed otherwise in these proceedings, the defendant's actions in this regard were unjustifiable and, therefore, unreasonable.

[44]

Were the defendant's actions reasonable?

In Manly Pactific International Hotel v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181, Davies AJA pointed out that s11A was concerned with the process adopted by the employer: "The criterion of s 11A(1)(b) is "reasonable action taken ... by or on behalf of the employer". The words "with respect to" are of wide application. Transfer, demotion, promotion, etc may be the subject of the action or proposed action taken by or on behalf of the employer or matters with respect to which that action or proposed action is connected or may themselves constitute the action or a part of the action. However, the provision does not speak of an injury caused by the transfer, demotion, promotion, etc of a worker but of an injury caused by action taken or proposed to be taken by or on behalf of the employer with respect to such a matter. The words "performance approval, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers" all clearly refer to matters other than the performance by a worker of his duties. The paragraph is thus looking to the worker's response to the employer's action or proposed action, not to the worker's response to employment conditions encountered after a transfer, demotion, promotion, etc. Senior counsel for Mr Doyle put the matter well when he submitted that the section was looking to the process of transfer, demotion, promotion etc rather than those acts per se." The test of reasonableness is an objective one. This was authoritatively established in COP v Minehan [2003] NSWCA 239; (2003) 1 DDCR 57. That was an appeal from a decision of Campbell CJCC given on 15 November 2002. His Honour adopted dicta of Geraghty CCJ and Truss CCJ to that effect. Those dicta can be found at [27] of the reasons of Foster AJA in Minehan. At [42] Foster AJA said: "For my part, I am not prepared to adopt this view of the operation of s 11A. I am satisfied that the legislature did not intend to restrict its operation in this way. I prefer the construction which has been accorded to it in the decisions in the Compensation Court referred to in this judgment and in his Honour's judgment. The words "reasonable action", in a statute dealing with Workers Compensation rights of employees should be given a broad construction, unfettered by considerations as to whether the employee can or cannot also bring an action at common law against the employer, founded upon breach of a duty of care." Sheller and Santow JJA agreed with Foster AJA. See also Jeffery v Lintipal Pty Ltd [2008] NSWCA 138.
I shall now consider whether the defendant's actions with respect to stressors identified at 110, (c) and (d) above were reasonable. Whilst some criticism can be levelled at some steps over this period, e.g. Ch Insp Leacy's initial failure to outline Mrs Morrison's complaint to the plaintiff on 6 March 1997 and his then delaying the processing of this complaint during his 4 RDOs when he attended to family business at Newcastle, it appears to me, objectively that the process during this period was reasonable. I do not understand Mr O'Rourke, for the plaintiff, to have submitted otherwise. Furthermore, the plaintiff himself made no complaint to me about the investigation which was being conducted by Super O'Neill or its outcome. He was "relieved" (see [54] above). In any event, the pleadings admit that the plaintiff formed the opinion that this investigation "was fair and the outcome was reasonable": see SOC par 6(c) quoted in [4] above. Whilst criticism might be levelled at some steps in the process, it is the entirety of the defendant's actions which needs to be considered: in Department of Education & Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206, Spigelman CJ (with whom Hodgson and Bryson JJA concurred) said at [96]: "Furthermore, the case before Sheahan J primarily focused on the whole course of Departmental conduct as constituting the relevant "substantial contributing factor" for purposes of s9A. His Honour appeared to approach the s11A issue on the same basis. This is an appropriate course to adopt in a context concerned, and concerned only, with psychological injury arising from matters such as "demotion, promotion, performance, appraisal, discipline, retrenchment or dismissal". Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context the "whole or predominant cause" is the entirety of the conduct with respect to, relevantly, discipline."
The remaining stressors which I need to consider under this heading are those of 20 and 29 August 1997 which are causally related and ought be considered together. At the heart of the reasonableness of the defendant's actions is the final report of the Ombudsman (exhibit Y). An attempt was made by the Ombudsman to protect the plaintiff's identity by describing him as "Senior Constable A". This was a futile exercise as the media were aware of his identity and his name was publicly broadcast: see the evidence quoted in [65] above. The plaintiff's complaint about the criticism levelled at him by the Ombudsman concerns the contents of the second paragraph of that part of the report which I quoted in [61] above. That expanded, somewhat, this view provided in the preliminary report (quoted more extensively in [58] above): "Given my view of the evidence I am of the opinion that Constable See should have ensured a prompt response by police in following up the information which Mrs Morrison had provided to him at 3.35am. In light of the serious concerns which had been expressed by Mrs Morrison, there was no reason why a Lithgow car crew could not have been quickly sent to investigate the matter." In short, the final report sought to grapple with, or engage with, the requirements of the Police Force as to dealing with prisoners. The Ombudsman's report did not seek to circumvent the Patrol Commander's directive that at night car patrols should always be constituted by two officers.
The first thing to note about the Ombudsman's view is that it is incorrect to say that the charging of ARG "had been completed" at 3.35am. The charging process began at 3.35am: see [21] and [22] above. The plaintiff maintained that the COP's instructions and his recent training (see [11] above) required that a young, intoxicated male, with a relationship problem, arrested for the first time had to be in the care of two members of the NSWPF and could not be left in a police cell where there was only one officer at the police station and that he could not merely release him from custody without the necessary formalities being observed.
The relevant COP's Instructions (or as near to them as Counsel could provide) are exhibit XX. They comprise twelve pages. The relevant parts of the Instruction "Screening Prisoners" are: 1. "When arresting, transporting, investigating, charging or confining persons in custody it is vital that you detect which prisoners are potentially dangerous to either themselves or other people. Preventing deaths, injury, or illness of prisoners requires identification of those at particular risk. The Prisoner Admission Management Form (PAMF) makes reference to prisoners who show any obvious pain, illness or injury, intoxication and suicide signs. ... You must be conversant with the custody questions in the PAMF which must be conscientiously completed every time a prisoner is to be placed in a cell or detained at a police station." 2. "Screening prisoners upon admission is considered the most important aspect of assessing illness or suicide potential." 3. "There are some fairly obvious warning signs regarding potential for suicide which can be identified. These warning signs may be direct statements while others may be indirect. They may be made to police, relatives, friends or other persons. Prisoners planning to commit suicide often speak about their plans and feelings. It is crucial that these indicators not be ignored. In particular, the screening process makes reference to prisoners who:• have medical problems• are severely agitated or aggressive• are under the influence of drugs or alcohol• are excessively despondent or guilty• have neck or wrist scars suggestive of previous self-inflicted injury• are irrational or mentally ill• have a history of suicidal behaviour• are arrested and placed in a cell for the first time" 4. "… the important thing to remember is if you recognise any signs, steps should be taken to prevent the opportunity for the persons to inflict self-injury or suffer illness." 5. "The prisoner's personal difficulties and background information, if available, can be a valuable contribution to the prisoner assessment." 6. "AccountabilityPolice Generally:You are accountable if you disobey instructions or fail to properly discharge your duty of care towards prisoners. You are expected to reasonably foresee what might happen when certain signs and symptoms exist." 7. Part 1.01 of the Instructions is headed "Apprehending officer's prisoner assessment". It contains this:"Personal difficulties and background informationYou may be in a position to provide information that would not be available to the custody officer that is of benefit to that officer's assessment. Inform the custody officer if you are aware of any of the following details about the prisoner:• no prior arrests• suicidal thoughts• psychiatric history• history of suicidal behaviour• history of drug and alcohol abuse• has experienced a significant loss• lacks close family or friends in the community• family or friend has attempted or committed suicide• rejected by close friends (especially relevant to child offenders)• is very worried about major problems other than the arrest• holds position of respect in community and/or alleged offence causes public outcry• feelings of loneliness, worthlessness, helplessness or hopelessness …"
Whilst the plaintiff was not the arresting officer, as the station officer at the time that ARG was taken to the Lithgow Police Station, and also as shift supervisor, the plaintiff was the custody manager, or, as the title was at the time, custody officer (T18.37). The plaintiff was concerned about ARG's age, 33 years old ("the end cusp of a high risk age range for a prisoner to self-injure and attempt suicide" - T20.13) his intoxication (BAC 0.095) and that he had a "relationship problem ("Bloody women"). That expression, used by ARG to explain his drinking, is capable of bearing multiple inferences, and therefore multiple explanations, and could be interpreted in the way the plaintiff said he did. The plaintiff regarded this as "a high risk factor for people in custody" (T20.05). As to the number of police required for processing an offender such as ARG, the plaintiff gave this evidence: "Q. In terms of the number of police officers that might be required to look after the prisoner in those sort of circumstances, is there a number? Do we need two, do we need three? A. Generally two for officer safety. It's not a good idea to have a prisoner behind you. And when you are a breath analysis operator you have to face the instrument, the keyboard, and it ‑ someone has to be watching the person in custody to make sure he doesn't put anything in his mouth or there's no risk. Q. Before we get more specific, in general terms, were there any rules at the time in relation to what probationary constables could or could not do? A. Generally, just ‑ probationary constables could not work outside alone, one out. Q. Was there any particular directive under which the constables and yourself were working that particular night in terms of patrolling after dark in Lithgow? A. Yes, there was an instruction from Inspector Leacy about police were not to work one out after dark. Q. From the background that you described earlier, and from your own years of experience, was there any particular necessity in terms of the number of police officers that should be in the police station when there is a prisoner in the police station? A. The bare minimum would be the two. But that would leave the front counter and the phones unanswered, so I would say three. Q. Why would it leave the front counter and the phones unattended? A. Cause the e breath analysis room is away from the front counter, and you wouldn't know if ‑ when people walk in. Q. Once that process is done, is there any reason why the prisoner couldn't go into the dock or into a cell? A. The prisoner did go into the dock, but ‑ for the initial part of the process, but then, all prisoners are fingerprinted, so he's removed from the dock for the fingerprinting process. Q. To take the point of the evidence that you were giving earlier about you perceived fellow to have elements of a high risk prisoner, what did that do as far as what you and the other two constables had to do? A. It just meant that we had to closely monitor him and gauge his demeanour." The thrust of the defendant's case on this issue is whether the plaintiff genuinely held at the time these views as to ARG's risk factors or whether they were ex post facto rationalisations. The plaintiff's evidence given to me was given nearly eighteen years after the events in question and after the plaintiff had been pre-occupied with these events "for years". However, the issues does not appear to arise at any time prior to the Ombudsman's intervention. Neither the plaintiff, Cons Foran or PC Hevers were questioned in Super O'Neill's investigation about ARG's risk factors, their obligations to ARG or the time spent at Lithgow Police Station processing ARG from the time he returned a positive breathalyser finding of 0.095 BAC until his discharge from the Police Station at 4.14am. Super O'Neill accepted that Lithgow car crew were despatched to the hospital "at the first opportunity" and that there was "no doubt from the documentary evidence that the crew of Lithgow 10, Constables Foran and Hevers, were in fact engaged, in accordance with the Commissioner's Instructions with a prisoner between the hours of 2.56am and 4.10am" (see [53] above). As I have pointed out at [60] above, Super O'Neill's findings were supported by Ch Super Shears on 22 April 1997, as they had been by COP Ryan on 17 March 1997 (see [55] above). They had also been "reviewed" by Ch Super Graham (see [52] above).
The plaintiff's position on this issue was provided to the Ombudsman by the plaintiff's solicitors on 30 May 1997 - see [60] above, in the first "highlight" that I made of those submissions. Opinions on these matters can differ but, to my mind, the Ombudsman has not adequately grappled with the considerations that the plaintiff was required to make at the time. A prisoner might not be violent or uncooperative but could still be suicidal. If the plaintiff were required to choose between competing priorities, which priority should he ignore - COP's Instructions or the Patrol Commander's direction? To my mind it would be safer for a member of the NSWPF to disobey a direction from his immediate supervisor rather than COP's Instructions. The plaintiff could have left Cons Foran and PC Hevers to deal with ARG and driven to the hospital - travel time "not much greater than 2 minutes" (see [27] above). There would have been no risk to him from working alone with Melanie Spillane, Kerry Anne Tonkin, Sister Muldoon and Dr Celeste Spamer. He could have interviewed the two young ladies, obtained Ms Lewis' details and her proposed plan, returned to the Police Station, telephoned Ms Lewis' parents and Ms Lewis' friends, advised Cons Foran of what was happening and had the car crew out looking for Ms Lewis as soon as the processing of ARG was completed. Alas, that did not occur, but that is not what the Ombudsman found. The Ombudsman found that the plaintiff should have dealt with ARG otherwise than "in accordance with the Commissioner's Instructions", to use the terminology of Super O'Neill. To this finding of the Ombudsman, COP Ryan appeared to acquiesce: see [64] above.
At [74] above, under the heading DC Lawson's actions, I expressed a view about Mr Ryan's decision. I did not make any comment about the merits of that decision at that time. However, I am now called upon to determine whether that action was "reasonable" in the circumstances, that is whether it was reasonable action taken by the then Commissioner of Police with respect to discipline of the plaintiff. The Commissioner was in effect acquiescing to the Ombudsman's finding as to what the plaintiff ought to have done which, in his own earlier opinion, and in the opinions of Ch Super Shears, Ch Super Graham, Super O'Neill and the plaintiff was contrary to COP's Instructions. The defendant bears the onus of proof on this issue. In my view, that onus of proof has not been discharged. Furthermore, some support to that conclusion can be found in what subsequently occurred, in some of the actions of DC Lawson.
As I observed at [74] once the Commissioner had, himself, acquiesced in the report of the Ombudsman, his Deputy's actions were inevitable. Perhaps naively, the plaintiff went to the meeting with DC Lawson armed with documentary evidence to support the position that he had espoused, through his solicitors on 30 May 1997, a position which had not been formerly challenged by anyone in NSWPF except Mr Ryan on 20 August 1997. As recorded in [67] above, both AC Adams and DC Lawson told the plaintiff, according to him, that he ought to have dealt with ARG by "locking him away" to be dealt with later. According to the plaintiff DC Lawson refused to hear the plaintiff's arguments about his obligations when there was a person such as ARG in custody. In [67] I set out the plaintiff's view of what occurred on 29 August 1997 and in [68] I quoted the substance of DC Lawson's report. Did the plaintiff tell me the truth as he perceived it? There is a witness who could have rebutted what the plaintiff said, Mr Adams, then Assistant Commissioner and Regional Commander, but he was not called by the defendant nor was his absence from the witness box explained. If the plaintiff went to this meeting perhaps naively bearing documentary evidence, why should the plaintiff admit, implicitly, such naivety when, as I said at [74] the die had been cast, to anyone who appreciated the consequences of Mr Ryan's volte-face, perhaps an agonising decision that he had to make. I am prepared to accept the plaintiff's evidence on this issue. It follows, in my view, that the actions of DC Lawson were unreasonable actions with respect to the discipline of the plaintiff - her action was inevitable in response to Mr Ryan's concession and on an acceptable view of it, amounted to a denial of natural justice, a denial of not only observing the audi alteram partem rule but also heeding it.
My finding at [75] above is also pertinent to this issue. I there accepted that the plaintiff did raise with DC Lawson a death in custody at Port Macquarie but that in some fashion she dismissed its significance. The Ombudsman criticised the police investigation into Mrs Morrison's complaint. One will note in [68] that which DC Lawson said to Super O'Neill. However, neither Ch Super Graham nor Ch Super Shears was given any "counselling". DC Lawson's reprimand to the plaintiff does not appear to have been recorded on the plaintiff's service register: see T327. Finally, I ought not leave the issue of "reasonableness" without pointing out that the Ombudsman's report and the subsequent acquiescence with it and DC Lawson's actions very much suggest fact-finding based on that wonderful advantage, the benefit of hindsight. No allowance appears to have been made for the possibility that Ms Lewis was not "missing" and in harm's way but merely that her whereabouts were unknown to her two friends and that there might be valid reasons for not causing anxiety or concern for her parents. Nor was any allowance made for the possibility that, left unsupervised in a police cell, ARG may have come to harm.