Skinner v The State of New South Wales

Skinner v The State of New South Wales - [2021] NSWDC 49 - NSWDC 2021 case summary — Zoe

Judgment A BACKGROUND Overview Issues B THE SECTION 151D WC ACT APPLICATION Procedural context Delay in the hearing of the application for leave The Leave Issue The delay & the explanation for it Attempts to obtain information from former solicitors Suggested prejudice Parties' submissions The plaintiff's submissions The defendant's submissions Consideration The merits Length of Delay Prejudice C FACTS Preliminaries The Chronology Goulburn Police Academy & Newcastle station: October 1992-April 1993 North Sydney station: April - July 1993 Hornsby station: June 1994- November 1996 Waratah command: November 1996 - March 2003 The 'Matthews episode' Commander Shearer Morisset station: April 2003 to September 2007 The Garland MVA fatality - June 2005 'dead man Danny' - October 2005 Commander Clarke Conflict with Commander Clarke regarding GSOs The suicide of Sgt Muir - late June 2007 Suicide of Gray - early September 2007 Toronto station: October 2007 to February 2010 Sgt Boyd's report - October 2007 Explaining to the plaintiff her move to Toronto station The plaintiff's HOD claim - late October 2007 Further troubles with Ms McSweeney Ms Hanna's opinion - January 2008 Attempts to return to work - June 2008 Management of the plaintiff's special sick leave & conflict with Superintendent Rae Circumstances leading to medical discharge Defendant's additional evidence D CREDIT The plaintiff SC Richardson Mrs Shearer Mr Clarke E THE PLAINTIFF'S INJURIES The Plaintiff's medical evidence Dr Alexander Murray Professor Alexander McFarlane AO Report of 30 May 2014 Report of 15 December 2015 Dr Toni Metelerkamp Dr Spruce Martin Peters The Defendant's Medical evidence Dr Vickery The Joint Expert report Consideration F SYSTEMS OF WORK Documentary evidence NSW Ombudsman's 'Officers Under Stress' June 1999 report Critical/Traumatic Incident Standard Operating Procedure for Reporting Lay evidence SC Richardson Commander Clarke Testimonial evidence Statement evidence Gary Odell Murray Lundberg Expert evidence Plaintiff's evidence Professor McFarlane Dr Murray Dr Metelerkamp Defendant's evidence Mr David Mutton Concurrent evidence Victim of nepotism and corruption? Omission to identify - 2005 No monitoring - 2005 Seeing 'dead man Danny' - October 2005 Failure to pass on information at command handover - 2005 Whether the need for welfare was apparent in May 2007? Reaction to the prospect of being sent back 'on the truck': second half of 2007 Influence of budgetary considerations on standard of welfare Not giving the plaintiff the afternoon off after the psychologist appointment Notice of psychological injury - October 2007 & the absence of response Notice of distress - February 2008 The possible withdrawal of entitlement The police psychologist's report of February 2008 (Exhibit E) The plaintiff's personality Assessment of experts Limits on the value of the evidence of the experts G FINDINGS ON DUTY OF CARE & BREACH OF DUTY Duty of care Breach of duty Principles Parties' submissions on breach Plaintiff's submissions The defendant's submissions Consideration Intentional conduct causing psychological injury: 1999 - March 2003 Failing to conduct review - early 2003 Failing to follow up after EAP consultation in May 2017 Failing to arrange debriefing sessions following incidents in 2005 The Garland MVA fatality 'dead man Danny' Not allowing the plaintiff to continue as station manager because of budgetary reasons - May 2007 The decision to send the plaintiff back to Toronto without full mental health assessment The 2005 traumatic events Other events: January - March 2007 May 2007 The May 2007 EAP counselling session The suicides - June - September 2007 Explaining the decision to send the plaintiff to Toronto - October 2007 H CAUSATION Expert evidence Plaintiff's evidence Concurrent evidence of experts Causal effect of intervention in 2005 Problems with 'directing' treatment? Time for diagnosis of PTSD 'Substantially better outcome' Exclusive causes for PTSD? Disentangling events Submissions Plaintiff's submissions The defendant's submissions Findings Failing to review plaintiff in early 2003, before her return to front line duties Failing to conduct debriefings in 2005 Failing to assess the plaintiff's fitness for general duties from May 2007 through to October 2007 The significance of the Hanna assessment -22 January 2008 I DAMAGES General Medical evidence Comparable income Past economic loss Submissions Plaintiff's submissions Defendant's submissions Future loss of earning capacity Submissions Plaintiff's submissions Defendant's submissions Consideration - critical factual findings Credit to defendant for past compensation payments Deduction on DC v State of NSW principles Contributory negligence and failure to mitigate Submissions Consideration Interest Summary Orders

[4]

Overview

The plaintiff is a former member of the New South Wales Police Force ('Police Force'). She worked in multiple stations across different parts of New South Wales over nearly two decades, in the period from October 1992 to February 2010. The plaintiff suffers from debilitating psychological injuries, in the form of Post-Traumatic Stress Disorder ('PTSD') and Major Depression. She brings a 'work injury damages' proceeding against the Defendant, being responsible for the conduct of persons in the Police Force, under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ('WIM Act'). She contends that the Police Force owed her a duty to provide her with a safe workplace and safe system of work and that, over the course of her work, she was exposed to manifold acts of violence, death affecting others, as well as bullying and harassment directed to herself by other members of the Police Force. The plaintiff argues that the Police Force acted negligently in a variety of ways, but fundamentally, she contends that after negligently failing to identify her stress symptoms which caused her eventual psychological injuries, the Police Force should have developed a system in place to mitigate the effects upon the plaintiff in responding to stressful situations. In addition, there is a separate complaint about the adequacy of the Police Force's response to her complaints of persistent bullying and harassment, which jointly or severally contributed to her psychological injuries.
The Defendant accepts that the Police Force owed a duty of care, although it says that the duty was modified in light of the special nature of the plaintiff's service and, as indicated, admits that she has suffered psychological injuries. But the Defendant disputes that the plaintiff's injuries were caused by negligence within the Police Force. Further, the Defendant says that its liability extended no further than the plaintiff continuing to receive statutory benefits under the Workers Compensation Act 1987 (NSW) ('WC Act'). Alternatively, if the plaintiff is entitled to recover work injury damages, the Defendant should receive credit for the statutory benefits that she has already received; the damages should be reduced on account of the plaintiff's own contributory negligence (essentially her own failures to report to the Police Force her own symptoms of stress and seek out medical assistance) which also meant that she failed to mitigate her 'damage', and reduced further on account of other events causing the injuries for which it is not responsible.

[6]

Delay in the hearing of the application for leave

It was curious that for a proceeding of this kind commenced on 17 March 2017, the validity of the proceeding had still not been determined when the hearing commenced in February 2021. At the time the matter came before me for hearing the Court had been supplied with an estimate of over two weeks, and possibly much more, for the length of the hearing.
In her affidavit sworn on 31 July 2018 (filed on 3 August 2018), in support of her application for leave, the plaintiff deposed that consent orders were made on 14 September 2017 for the service of an application for leave to commence the proceeding with supporting evidence by October 2017. That did not occur and in December 2017, further consent orders were made for service of an application, with supporting evidence, by 15 February 2018 and a hearing date on 17 May 2018. These directions were not complied with. Three days before the hearing date, her first solicitors, Carroll & O'Dea had filed a Notice of Intention of Ceasing to Act. This took effect on 22 May 2018. The plaintiff deposed that on 17 May 2018 when she was unrepresented, the proceeding was adjourned.
I was also informed from the Bar table that the application for leave had been brought and prosecuted whilst the plaintiff was formally unrepresented and that in 2019, the application had been adjourned in 2019 to be dealt with by the trial judge.
With respect to those whose decisions have contributed to this result, in circumstances where the defendant has at all times flagged its opposition to the grant of leave, in my opinion this procedural course was misguided in the circumstances. If the plaintiff, as applicant, was not ready, or was disadvantaged by reason of an absence of representation, to bring the application, the preferred course would have been to her to have procured representation (as she eventually did), and then hear the application.
The consequences of the current procedural course was that a motion brought in 2018 has been left unresolved for years, and the parties have subsequently spent substantial time preparing their cases, including presumably significant expense, in the ensuing two years upon a hypothesis that leave might be granted in the hope, at least in the plaintiff's case, that all the preparation will not have been in vein. That said, the plaintiff has sought to exploit this forensic circumstance: she relied upon the joint expert report 'in conclave' dated 14 January 2021 as proof that the Defendant has not been prejudiced.
Once a work injury damages proceeding is commenced in this Court, like other civil proceedings, it is subject to the case management objectives referred to in ss 56-60 of the Civil Procedure Act 2005 (NSW). It is not consistent with those objectives for the leave application to be commenced, then be allowed to fester as long as this one did. Otherwise, if the defendant's opposition is soundly based, it will likely have incurred substantial expense in defending a proceeding not validly commenced. An injured worker is also entitled to know, as soon as possible, whether his or her proceeding should be allowed to proceed.
I do not suggest any inflexible rule to the case management of such applications. Plainly, there are cases which, because of the relatively narrow factual dispute, concurrent hearings of leave applications and the hearing of the proceeding are a more efficient use of the Court's time and the parties' resources. But this case was not one of them. I acknowledge that one of the problems in this case was the status of the plaintiff being unrepresented at important stages. The plaintiff' claim also ranged over matters of some factual dispute over a period of some ten years. But had the defendant's ultimate position - which was not to contest the leave application on the basis of an absence of a sufficiency in merit - been conveyed to the Court at an earlier time, it seems to me that there was no real necessity to have the leave application heard concurrently with the trial of the matter, since the scope for the dispute on the question of leave was considerably truncated. Determining the leave application earlier could (if the defendant succeeded) have brought the proceeding to an end and avoided time and wasted expense. That this result has not come to pass, for reasons I now explain, does not lessen the desirability of that course. For proceedings of this kind and consistently with their obligations under the Civil Procedure Act, parties and their lawyers, should give full consideration and disclose to the judicial officers who manage such proceedings ways in which leave applications can be determined promptly and cheaply without derogation to the interests of justice.

[7]

The Leave Issue

Section 151D(2) of the WC Act provides that a person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.
In the Defendant's written submissions, reference is made to general authorities relating to the Court's power to extend limitation periods. However, in Gower v State of New South Wales [2018] NSWCA 132, White JA (who delivered the leading judgment) said (at [186]) that the limits of the discretion to extend limitations periods are marked by the subject matter, scope and purpose of the relevant legislation. His Honour (at [186]-[187]) said that where a statute imposes barriers against the bringing of claims that result in delay, leading to a loss of evidence, but permits leave to be given for the commencement of proceeding, the proper exercise of discretion is likely to be highly influenced by whether the claim is apparently meritorious and the degree of prejudice to the defendant. It is not imperative to refuse an application to extend the limitation period if the delay has resulted, or is presumed to have resulted, in the loss of evidence that affects the chance of a fair trial. That may, his Honour said, be the consequence in a particular case, but it is not an inevitable rule.
Simpson AJA generally agreed with White JA's analysis in this regard (Basten JA was in the minority on this point). Her Honour emphasised (at [228]-[230]), that on the facts in that case, it was inapposite to say that the applicant had deliberately allowed the limitation period to expire when, due to the absence of evidence as to the relevant degree of Whole Permanent Impairment, the applicant could not realistically commence proceedings within the limitation period.
The observations of the Court of Appeal, in Gower, represent the most recent exposition of the principles by the Court of Appeal that should guide the exercise of my discretion; and are particularly salient when it comes to my consideration of the adequacy of the explanation for delay. It remains the position that the other important remaining considerations concern whether there is any actual prejudice, beyond presumptive prejudice, to the defendant and the merits, such as they appear, of the applicant's case.
The Defendant opposed the application for leave, on two grounds. It says that no reasonable explanation has been given for the delay in commencing the proceeding. Secondly, the Defendant has suffered substantial prejudice because of the delay. As indicated, the Defendant makes no submission that the plaintiff's claim is inarguable or that the plaintiff's claim is so apparently weak that this would be an additional basis for declining the grant of leave. This was one of the factors which led White JA in Gower, when exercising the discretion afresh, to reject the application.
Since there is no challenge to the arguability of the plaintiff's case on the merits, it is unnecessary to descend to the minutiae of all of the incidents set out in the plaintiff's pleading, except to the extent that they generate the complaint of prejudice, in the sense of the Defendant's inability to call evidence.

[8]

The delay & the explanation for it

For this leave application, the plaintiff relied upon multiple 'evidentiary statements' she had prepared for the proceedings generally and an affidavit, all comprised in a 3-volume tender bundle (Ex D on the application).
In the plaintiff's affidavit sworn 31 July 2018 (filed on 3 August 2018), the plaintiff specifically sought to address the delay in the bringing of her claim. Putting the matter very generally, this affidavit, again prepared whilst the plaintiff was unrepresented, presented a narrative featuring the involvement of multiple firms of solicitors.
This began with her representation by John Palmeiri Law Firm in early February 2009, when she says, he commenced to investigate bringing a lump sum workers compensation claim. She deposed to Mr Palmeiri arranging for her assessment by Dr Street. She saw him on multiple occasions and shortly after she became medically discharged from the Police Force, on 18 March 2010, she received a Work Place Injury ('WPI') assessment of 29%. On 10 November 2011, a certificate of determination confirmed a 22% WPI.
On 10 April 2012, notice was given to the Insurer of the plaintiff bringing a claim for work injury damages. The notice claimed that the plaintiff was exposed to various traumatic experiences in her period of employment up to May 2010; although these experiences were not particularised. The notice also contained the allegation of negligence, with generalised particulars, particulars of her impairments (including but not limited to suffering chronic PTSD) and heads of loss.
Towards the end of this notice, reference was made to one of the plaintiff's 'evidentiary statements' being incorporated. The notice observed that the insurer was already in possession of this witness statement. The plaintiff said that she compiled the statement at the request of her then solicitor, in 2010. The statement was about 50 pages in length. Relevantly, the statement identified names of police officers who were privy to the plaintiff's narrative account of events and who the Defendant subsequently contended had been medically discharged and/or were unavailable to give evidence in the trial. Without limitation, this included officers Trott, Shearer, McSweeney, Kenny, Clarke, Sharman, and Boyd.
On 24 April 2012, the Insurer's solicitor responded by requesting particulars. There was no reference to the plaintiff's evidentiary statement and no denial of the correctness of the proposition that the Insurer was in possession of it. A feature of this was to request particulars of the allegation of negligence; however, no particulars per se were requested in connection with the evidentiary statement referred to in the plaintiff's notice - and in the Insurer's possession - regarding the 'traumatic experiences' the plaintiff asserted that she had been exposed to.
There were few objective indications of progress of the claim until March 2013, although reference was made to a request for further particulars on the Insurer's part. The plaintiff referred to suffering the effects of her injury. On 14 March 2013, the employer gave notice declining liability.
Under cross-examination on the leave application, the plaintiff said that she learnt about the existence of a limitation period from a letter from the Insurer in the period in which she retained Mr Palmeiri and that there was some discussion with Mr Palmeiri about it. Although she was not precise about it, she appeared to accept that she learnt about the limitation period proximate in time to the denial of liability, being March 2013.
The plaintiff says that she lost confidence in Mr Palmeiri and the next month, on 9 April 2013, that she engaged a new solicitor, Mr Anthony Hetherington of the firm Whitelaw McDonald Solicitors, at Kotara. On 16 May 2013, Mr Hetherington received the file for the plaintiff from the previous firm.
The plaintiff recalled conferring with Counsel, Mr Edwards, but that occurred in August 2013 and there was no indication as to what had occurred in the preceding 3 months. The next month, solicitors for the insurer and Mr Hetherington had communications regarding the provision of particulars.
In October 2013, the plaintiff was assessed by Professor McFarlane in person. The Court is informed that the plaintiff chased up the expert numerous times in early March and May 2014. Eventually a report was obtained on 30 May 2014. In that report, Professor McFarlane diagnosed the plaintiff as suffering from PTSD and a Major Depressive Disorder.
In June 2014, the plaintiff's Counsel, Mr Edwards passed away. Perturbed by a loss of confidence in Mr Hetherington, the plaintiff sought to terminate his retainer and requested his release of the files, but in August 2014, that request was denied.
Under cross-examination on the application for leave, the plaintiff was referred to email correspondence to Mr Hetherington dated 10 March 2014, in which the plaintiff evinced an understanding of various evidentiary items which were required to prepare the Pre-Filing Statement eventually served in June 2016.
In late August 2014 she contacted new solicitors, Carroll & O'Dea, at that firm's Newcastle branch. In December 2014, a letter of instruction was issued to Mr David Cockburn to prepare a liability report. Aside from this, little happened until March 2015, when Mr Brown advised that a material witness was a close friend. The plaintiff's file was transferred to the firm's Sydney office where it was dealt with by Ms Nadia Baker.
However, as at 4 March 2015, the plaintiff did at least send an email to a range of persons requesting their assistance in procuring the complaint and investigation history of various officers.
The Sydney office of the firm did not request documents within the Whitelaw McDonald files until June 2015.
In July 2015, the plaintiff received request for assessments for a psychiatrist, Dr Vickery and an orthopaedic surgeon, Dr Pillemer.
In late August 2015, Ms Baker received the files from Whitelaw McDonald. Around the same time, Ms Baker received a draft liability report from Mr Cockburn, with the final version only received in October 2015.
On 15 December 2015, Professor McFarlane sent to Ms Baker a supplementary report.
On 31 December 2015, Dr Murray prepared a report. In it, he referred to Professor McFarlane's report of 30 May 2014. Dr Murray considered that by 1995 she was either suffering from an 'Acute Stress' Disorder or PTSD.
On 20 June 2016 the plaintiff's 'Pre-Filing Statement' prepared under s 315 of the WIM Act was served. The covering letter referred to 7 volumes of material that were relied upon. Unsurprisingly (and mercifully) the 7 volumes were not put before the Court. On 15 July 2016, the defendant's Pre-Filing Defence was received. On 25 July 2016, Ms Baker served a sealed copy of an application for a mediation. The mediation occurred on 10 November 2016 but was unsuccessful.
The plaintiff deposed to reading a file note of a conversation between Ms Baker and a person from Whitelaw McDonald on 9 August 2016 from which she inferred that the latter solicitors had not supplied Carroll & O'Dea (Sydney office) with the whole of her file.
The plaintiff commenced this proceeding on 17 March 2017.
In her affidavit of 31 July 2018, the plaintiff stated that from February 2009 to May 2018 she had received 'conflicting legal advice' from different solicitors and barristers. That statement was treated as a submission on the application. The plaintiff went on to state that the gist of the advice she received was that she should not have a Pre-Filing Statement issued until such time as all her evidence had been obtained. She deposed to her reliance upon legal advice at all times, especially the time for filing and service of documentation to support her claim.
She deposed to being aware of 'the time limit' but understood (or perhaps more accurately expected) that it would be extended in circumstances where she took all reasonable and necessary steps to advance her claim. As noted, under cross-examination, she appeared to suggest that she learnt of the limitation period around March or April 2013.
She deposed that at no time after the issue of her notice to make a claim in April 2012 did she ever intend to abandon the claim. She concedes that there have been periods where she had been slow in providing instructions, but believes that at those times she was afflicted by the symptoms of her conditions for which she now seeks compensation.

[10]

Suggested prejudice

The Defendant relied upon two affidavits of Ms Katrina Jenkins, the solicitor for the Defendant, dated 11 January 2019 and 9 February 2021 (the second day of the trial) which was supplementary in nature to the first.
In her first affidavit, Ms Jenkins commenced by noting the serial references in the plaintiff's pleading to other police officers being witnesses to events occurring at the multiple number of police stations in the period that she was a police officer, being from 1992 until 2008.
The plaintiff's statement of claim itemises many incidents involving violence and death which, over the course of time, she says caused her to develop psychological injury. Overlaid with those traumatic events there were incidents of alleged bullying harassment of general mistreatment by her colleagues and/or supervisors or managers.
Ms Jenkins deposed that after the proceeding had commenced, she made inquiries of NSW Police about the status of those police offices and was informed that some of them were no longer serving in the Police Force, some had been medically discharged or retired. She also deposed to attempts to obtain witness statements from these officers, involving the investigative firm QuantumCorp. In September 2017, she received a report from QuantumCorp. A number of officers (Michelle McSweeney and Mark Sharman) declined to be interviewed, whilst others (Inspector O'Dell, Commander Clarke and Superintended Shearer) could not be contacted due to the nature of their personal medical discharges. Ms Jenkins' understanding was that the officers in the latter category were rendered unfit by reason of themselves having the condition of PTSD. Some other potential witnesses had not responded to attempts to contact them.
After receiving the plaintiff's evidence in support of the earlier application for leave (filed in August 2018), Ms Jenkins deposed to further efforts to contact potential witnesses. She stated that most had been discharged by reason of their own psychological conditions. But after receiving details of their last known addresses in October 2018, Ms Jenkins commissioned a further investigation, this time through the agency Procare. Procare prepared a report dated 27 November 2018. That report was updated in December 2018 and again in January 2019.
Ms Jenkins caused subpoenas to attend to be issued to witnesses whose addresses had been located; but investigators could not locate addresses for former Commander Clarke or former Inspector Trott.
Ms Jenkins prepared a supplementary affidavit, attaching communications about witnesses she received in January 2019. The prospective witnesses McSweeney, O'Dell and Sharman have psychiatric conditions themselves which prevent them from giving evidence.

[11]

The plaintiff's submissions

On the aspect of delay, the plaintiff's Counsel argued that she did not deliberately run down the limitation period. The legislative requirements for the claim she was making made it difficult for her to commence the proceeding earlier than she did; and, further, after she had obtained the WPI impairment for psychological injury, there was further delay occasioned by a combination of her own difficulties in handling her condition and difficulties associated with her representation by lawyers.
On the aspect of prejudice, the plaintiff argued that this complaint lacked substance in the context of the plaintiff notifying the Police Force in April 2012 of her intention to bring the claim, at which point the Defendant had in its possession a 50 page narrative account implicating virtually all of the police officers which the Defendant now says are either medically discharged or are 'unavailable'.
From this, the Defendant was able to make inquiries and forensic decisions (including denial of liability) on the basis of the information acquired through the inquiries, before deciding to decline liability. If it took this significant forensic decision without having interviewed the police officers identified in the plaintiff's exhaustive evidentiary statement, that was a matter for the Defendant but it could not now complain that it has been deprived of the opportunity to interview them on account of the plaintiff's delay in commencing the proceeding.
Reference was made to Ms Jenkins' first affidavit indicating that the Defendant had identified relevant witnesses, but many of them had 'psychological conditions'. Some were uncooperative. Any lack of co-operation from these witnesses could not be attributable to delay by the plaintiff. Of the ten witnesses identified, only two, Messrs Clarke and Trott did not have addresses recorded for them. For one of them, an agent of the defendant had spoken to Mr Trott but inexplicably did not obtain contract details. In Mr Clarke's case, near the commencement of this trial, the plaintiff established that he had a prominent social media profile as a corporate director. All but these two witnesses had been issued with subpoenas to attend in 2019, thereby indicating that contact details for witnesses were available, and relevant information could be obtained.
If these witnesses had been medically discharged or had incapacitating psychological conditions presenting an impediment to them giving evidence for the Defendant, than these were circumstances which could not be laid at the plaintiff's feet. With the exception of former officers O'Dell, Clarke, McSweeney and Fielding, all of the officers were medically discharged, and had their respective last days of service even before the plaintiff notified the Police Force of her intention to bring a claim. It could therefore not be said that any delay by the plaintiff in commencing the proceeding resulted in the Defendant being able to try to contact them to ascertain whether they could assist.

[12]

The defendant's submissions

The defendant submitted that the significant delay is not satisfactorily explained. At least by 2010, the plaintiff was armed with enough information, after an expert report was obtained from Dr Street. Alternatively, from 2012, when she notified the insurer of the claim, she took a period of another 4 years before serving her Pre-Filing Statement. Although it was true that the plaintiff had changed her solicitors various times in that period, that was only a partial explanation. Although it may also be accepted, for the purposes of the application, that her condition affected her capacity to progress her claim, there were indications in the emails she had sent out in April 2015 and March 2015 to indicate that she knew what needed to be done.
The defendant submitted that 'full and satisfactory explanation' requires full account of the conduct, including the actions, knowledge and belief of the claimant from the date the cause of action accrues until the date of providing the explanation. Further, the extent to which, if at all, conduct by the plaintiff's solicitor is relevant depends upon the circumstances. In Coal & Allied Operations Pty Ltd trading as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271 Ipp JA said (at [35]) that acting on legal advice in letting a limitation period expire may be a significant factor in a grant of leave to commence a proceeding, but that this would require evidence that the advice was misguided or proof that new evidence has been discovered, or perhaps that the claimant may have acted with due diligence. The plaintiff had access to the files of her solicitors to help her assemble evidence. She did not suggest that the content of these files was such as to present an impediment.
The Defendant submitted that the prejudice customarily presumed should not be underestimated: the longer the period of delay, the more likely it would be that the quality of evidence will diminish. In addition to presumptive prejudice, there was also actual prejudice.
The defendant relied upon the Court of Appeal's decision in State of NSW v Donnelley [2004] NSWCA 133 for what the Court had to say on the matter of prejudice. That case carried an unerring similarity to the basal facts in this case. As in this case, so too in Donnelley, the claimant was a police officer, who asserted that over a substantial period of time (over eleven years), the claimant developed psychological injury as a result of exposure to many stressful events, where the alleged negligence consisted of a course of dealing with the Police Force. In particular, as was the case here, part of the negligence in Donnelley concerned complaints with how the Police Force monitored or supervised the claimant's activities as symptoms of psychological injury manifested. Several points from the leading judgment of Giles JA were emphasised. First, because of the nature of the claim, the claim did not exclude from consideration evidence of all of the events generating the stress and that necessarily would require, if the claim was to be fairly defended, opportunity for the defendant to call witnesses ([53]-[54]). Secondly, it was no answer to say that any gaps in the capacity of an opponent to call witnesses could be made good by the availability of records in the opponent's possession. Depending on the nature of the claim and the factual issues generated, they may or may not be adequate to alleviate prejudice sustained because of added memories and lost evidence (at [51] & [54]).
The Defendant relied upon Ms Jenkins' evidence of witnesses who were unavailable.
Separately, the Defendant also relied upon the observation of Handley AJA (with whom Young JA agreed) in GIO General Limited v Love [2009] NSWCA 269 at [36]-[37] regarding the onus of proof of actual prejudice. His Honour noted that although an opponent to the grant of leave may carry an evidentiary onus to establish actual prejudice, the ultimate onus of proving the absence of appreciable prejudice rested upon the claimant.

[14]

Length of Delay

When assessing the adequacy of the explanation for delay, general statements in cases on limitations provisions, regarding the date when the cause of action accrues, made in other statutory contexts must, as White JA determined in Gower, must give way to the considerations applicable to s 151D. Further, as White JA and Simpson AJA (who dissented in the outcome) observed in that case, the particular statutory considerations of note are that for all intents and purposes, until a Pre-Filing Statement has been amassed, a claimant cannot practically commence a proceeding since he or she will not have a 'viable' cause of action. Further still, unless and until a claimant obtains a WPI impairment assessment of 15%, in any proceeding brought, the claimant could not recover damages.
In my view, this means that the most significant period for assessing the length of delay is not so much when the cause of action accrued per se, as might be expected under ordinary limitations provisions, but from the date that a WPI Impairment Assessment was obtained to when the Pre-Filing Statement could have been served.
By November 2011, the plaintiff procured an assessment of WPI impairment indicating an entitlement to bring a claim for work injury damages. In April 2012, she notified the employer of her intention to bring a claim.
The covering letter serving the Pre-Filing Statement indicated that it comprised no less than 7 volumes; not including the 50 page narrative statement. The significance of this was that by then, the Police Force (and any applicable insurer) was on notice of the prospect of its facing a claim that the injury claimed to have been suffered was the result of the negligence of the Police Force. As indicated, virtually all of the names of the witnesses who, the Crown suggested were are 'unavailable' had been identified and, with the benefit of the Police Force's own internal records could have been interviewed before the employer, the Police Force, through its insurer, declared the decision to decline the claim. It was notable that when it had the opportunity to do so, the solicitors for the Insurer did not seek particulars of the variety of traumatic experiences that claimant asserted that she had suffered to give rise to her claim of negligence. In view of the exhaustive nature of the plaintiff's evidentiary statement, that was not surprising. In these respects, the plaintiff is again placed in a more advantageous position than the claimant was in Gower.
The plaintiff's Pre-Filing statement was not served until June 2016. It was not an especially long time between the service of the Pre-Filing Statement and the commencement of the proceeding in March 2017, especially when part of that time was taken up with an unsuccessful mediation.
To my mind, the critical period for assessing delay was from April 2012, when she gave notice of her claim to bring a claim for work injury damages, until June 2016, when she filed her Pre-filing statement.
I did not consider that the length of delay from the time she filed the Pre-filing statement to be unreasonably excessive. I accept that there were periods of months not specifically accounted for. The plaintiff herself accepted that. However the plaintiff gave evidence that, aside from delays caused by changes of solicitor and chasing of experts for evidence, she was debilitated by the psychological injuries which the Defendant accepts she has suffered from. Although the Defendant's Counsel exposed, through brief cross-examination, that the plaintiff had some capacity to give instructions and a consciousness of the evidence she might need to prepare her Pre-Filing Statement, it was not a wholly balanced view of the evidence to pluck out two emails in order to make a submission that she had a capacity herself to progress the claim in this 4 year period sooner than she did.
It needs to be recalled that the expansive scale of the plaintiff's claim covered a period of virtually 20 years of her service. It also needs to be recalled, as was emphasised in Gower, that unlike other statutory frameworks, the particular statutory framework places a high premium upon plaintiffs essentially completing their evidence before they commence a proceeding; to get it all right; lest there be real constraints upon the plaintiff's capacity to adduce evidence after the proceeding has commenced [1] . An illustration of the last point in this proceeding is the Defendant's objection that what is apparently supplementary evidence from the plaintiff's medical experts should not be admitted because of that constraint.
I generally agreed with the submission advanced for the plaintiff that, in addition to the changes of solicitors, the emails identified by the Defendant in March 2014 and March 2015 presented an unusual demonstration of a claimant adopting responsibility for gathering evidence. It was not clear, from the isolated way in which those emails were brought to the claimant's attention, how if at all this circumstance may be attributable to the difficulties that the plaintiff encountered with her respective solicitors. The defendant's Counsel did not, in fairness, seek to overstate this point about the pro-active steps the plaintiff took herself. He fairly acknowledged that it showed a personal level of diligence which was to her credit on the application. His point was that it would be too glib for the plaintiff to blame the 4-year period of delay upon her singular reliance upon different sets of solicitors.
I did not consider that the plaintiff was attempting to do this: her explanation for delay relied upon an amalgam of circumstances: the complexity and scale of her case; the difficulties with multiple firms (including her capacity to retrieve files from them) and the debilitating effects of her condition, which probably waxed and waned, in their intensity, and the consequence for her capacity to progress the bringing of the claim. It is pertinent to reiterate here that the Defendant accepted that she has serious psychological injuries and did not dispute that her condition had been contributed to (in a medical, if not legal, sense) by her exposure to a range of traumatic episodes occurring throughout her career in the service.
To the extent that there are suggestions that this may have been a requirement, in my view, it was unnecessary for this Court, on an application of this kind, to be venturing views upon whether the conduct of the various legal representatives who have acted for the plaintiff over the years was negligent. This was the subject of the plaintiff's 'evidentiary statement' of 16 August 2019. For one thing, those representatives are not on trial in this interlocutory application and it would be unfair to make findings about their conduct without them being heard.
The period of delay was adequately explained.

[15]

Prejudice

I accept that prejudice may be presumed in a general sense, particularly in relation to the quality of the evidence that the Defendant is able to adduce from such witnesses as it proposes to call. But the capacity of witnesses to recall events many years before differs. As later became apparent at the hearing (after the present application had been determined), Commander Lee Shearer, for example had almost no recollection of her dealings with the plaintiff. Commander Clarke, in contrast, had a better recall of his dealings with the plaintiff; especially when documents were brought to his attention. At any rate, the validity of this concern may partly be assessed by reference to the Defendant's capacity to have called evidence which it contended was permanently lost or diminished because of the delay.
That brings me to the real issue, being the question of actual prejudice. I reiterate, in Gower, White JA (with whom Simpson AJA agreed) found (at [188]) that it is not mandatory for an application for extension to be refused if delay has actually or presumably resulted in a loss of evidence affecting the chance of a fair trial.
A difficulty with the position relating to the evidence at the time that the application was heard (the Defendant wanting it to be determined separately and in advance of everything else) the Defendant provided no clear delineation as to the issues that these relevant witnesses may give. Prejudice, in this context, is a relative concept. As Hodgson JA said in ASB-Tech Services Pty Ltd (in liq) v Doeland [2003] NSWCA 167 at [35], it should be measured by reference to the likely issues in the case. There was and is no dispute that there is a causal connection between the plaintiff's service in the Force and her psychological injuries in the medical sense; although there is a hotly contested issue whether it is the negligence of the Police Force which has caused that injury (and also whether the plaintiff's own conduct contributed to it). Further, the evidence of the medical experts who has assessed the plaintiff more or less indicated a consensus that she suffers from a genuine and recognisable psychiatric illness. This was not a case, for example, of any prejudice caused by loss of medical records.
The actual prejudice, if it existed at all, was centred upon what might be described in a composite sense as the 'liability' issues, and in particular what the police did to assist police officers dealing with stress and psychiatric issues and what it could have done.
I am cognisant of what Giles JA said in Donnelley, about the difficulties that can arise for a defendant when a plaintiff belatedly commences a proceeding of a very substantial scale, in terms of the factual matters. But in circumstances where the Defendant accepted that trauma was, to some degree, an inherent or inevitable feature of the service of this plaintiff, and where it was accepted that she had developed a recognised psychiatric illness, proof of every single one of the 30 or so separate trauma-inducing events identified in the plaintiff's pleading, including, for that matter, proof of bullying or harassment, did not need to be positively established to make out a case of liability. The main battleground, as I saw it, at the heart of the leave application, was the responsiveness in the Police Force to dealing with the developing symptoms of psychiatric illness in the plaintiff and whether, its response could be viewed, overall, as reasonable. Although that was a matter about which the plaintiff could give some evidence, generally, it would be expected that the Police Force would have records of what protocols and procedures were and it was not suggested that these were lost or could not readily retrieved because of the delay in the commencement of the proceeding.
There was the suggestion, in particular, that the defendant was unable to identify what 'systems of work' were in place to prevent or mitigate the risk of officers suffering psychological injuries because of exposure to traumatic events. To the contrary, judicial decisions such as Briggs and Sills, considered later in these reasons, indicate the existence of those systems has been a fertile source of personal injury litigation for years. Although this was not known at the time of the leave application, the defendant eventually relied at the trial upon witness statement of officers as far back as 2013.
Nevertheless, a subsidiary issue concerned how the plaintiff herself let her developing symptoms or concerns be known. This was the subject of evidence from the plaintiff in at least one expansive witness statement (which later became Exhibit A) which the Police Force had in its possession from 2012.
The Defendant's Defence (filed on 20 April 2017) indicated that police records were able to pinpoint, with precision, the date ranges where the plaintiff was stationed throughout her career spanning 18 years. I inferred that even if it had not received information from the plaintiff, the Defendant would have been able to ascertain from its records who were the persons responsible for her supervision and management at each of those points. At any rate, from the time that the Defendant was notified of the plaintiff's intention to bring a claim in 2012, and her specific identification of police personnel who were witnesses to the same traumatic events, or participants in alleged acts of bullying or harassment, or who were her supervisors and managers, I inferred that the Defendant had the means of readily identifying who were the plaintiff's supervisors and managers at those various places.
Although Ms Jenkins referred to some difficulties about those witnesses, the issue of actual prejudice needs to arise from the plaintiff's delay in commencing the proceeding itself. Finding, as I did, that the plaintiff had enough information to identify the police officers by at least 2012, the more focussed question was what prejudice did the Defendant sustain as a result of the further 4 year period of delay lapsing with the filing of the plaintiff's Pre-Filing Statement in June 2016.
In the case of Ms McSweeney, who featured prominently in the plaintiff's evidentiary statement of August 2019, she apparently declined to be interviewed. Mr Gary O'Dell also refused to assist. The most recent evidence, that they have psychiatric illnesses, did not alter the inference that the Defendant's inability to call them was not the result of delay by the plaintiff in commencing the proceeding.
Reference was contained in Ms Jenkins' material in January 2019 to former Commander Clarke and Superintendent Shearer, not being contactable because they themselves had been discharged because of their own conditions. At least in the case of Mr Clarke, he appeared well enough to engage in corporate activity. He was active on social media (or at least the LinkedIn platform) and the director of a consulting company so the suggestion that it was not possible to contact him fell away. Ms Shearer's position was not evident two years on down the line at the time of the hearing of the application. In the event, after the Court determined this application, both officers were called by the Police in its case.
Ms Jenkins indicated that for all but two persons, officers Clarke and Trott, subpoenas to attend had been issued for two persons whose addresses had been obtained. If the Defendant had contact addresses for all but two, it was not apparent why, other than because of a refusal to cooperate, they could not give evidence.
As to Mr Trott, there was no evidence of what, if any, further efforts had been made by the Defendant as to his whereabouts in the period of two years since Ms Jenkins prepared her affidavit. He is mentioned, briefly, in the plaintiff's evidentiary statement in the employer's possession as at 2012. No evidence was put before the Court as to what, if any, interviews were conducted on behalf of the defendant of Mr Trott at that time, or thereafter.
In my view also, significance also needed to be given to the scale of the claim. This was not a case of a single incident witnessed by the plaintiff and a single witness for the defendant who is demonstrably unable to call to give relevant evidence. Even if, to take one example, it was impossible for the Defendant to call officer Trott, who, it appears, was at Waratah police station in two discrete periods during the entirety of the plaintiff's 18 year period of service, that circumstance did not, in my view, justify depriving the plaintiff of the opportunity to advance a claim for the entirety of the period.
In view of the notice it had about the plaintiff's claim since 2012, I was not convinced that the Defendant had truly been deprived of the opportunity to assemble evidence and contact witnesses and to enlist their assistance. The fact that ten people were identified by the Defendant and 8 of them were the subject of subpoena suggests that the concern about an inability to call witnesses is overstated. For the remaining two of them, clearly one (Mr Clarke) currently carries a public profile and for the other (Mr Trott), the position was more uncertain. (Ultimately, Mr Clarke was called). It was not altogether clear how material former Officer Trott's evidence might be but, as I have said, the Defendant did not miss out on the opportunity to elicit his response to what was said about him in the plaintiff's evidentiary statement. Further, the circumstance that some of the police witnesses became medically discharged and had left the service, in large measure, were matters that occurred even before the time in 2012, when the plaintiff notified the employer of her claim. It could not fairly be said that any incapacity or unwillingness on the part of those particular persons can be attributable to the plaintiff's delay in commencing the proceeding.
Overall, I did not consider that such prejudice as might be sustained, presumptively attributable to the plaintiff's delay, was of such significance to deprive the Defendant of a fair trial, which is why I determined to grant leave to the plaintiff to commence the proceeding nunc pro tunc on 17 March 2017. Costs of the application for leave are to be costs in the cause.

[16]

Preliminaries

The plaintiff's evidence was constituted primarily by two witness statements (Exhibits A and B). The first was prepared by her in or about 2010 and the second was prepared by her and signed on 19 August 2019. After initial opposition, the defendant did not ultimately press its original objection to her evidence in chief being given in that form. Nor did the defendant press its initial objection to Exhibit B as being evidence sought to be admitted which contravened s 318(1)(d) of the WIM Act.
I intend no criticism of the plaintiff when I say that it was hard to follow her evidence from those statements. Prepared as they obviously were without the assistance or involvement of a lawyer, they were filled with her opinions and perceptions of events and the actions of colleagues, supervisors and managers, which were barely admissible. They were not seamlessly chronological. In some instances, read contextually, it is obvious that she got certain dates wrong. This was unsurprising when one considers when she wrote them. Even the first one, written in either 2009 or 2010, was narrating some events which occurred before the turn of the century.
The focus of much of the plaintiff's evidence was her dealings with her supervisors and managers within the Chain of Command. It is pertinent to describe the Command Structure of the relevant sections of the New South Wales Police Force, as it affected the plaintiff. Annexed to these reasons is a sketch diagram (Exhibit D-2), indicating the command structure during the period of the plaintiff's service, and the personnel who filled the relevant offices.
It is also pertinent to note that the focus of cross-examination of the plaintiff was not upon her detailed description of the events and incidents occurring, whilst she was performing her general duties. No real challenge was mounted about her recollection of those events. To a small degree, that evidence was corroborated by Senior Constable Richardson, who testified of two such events when he served with the plaintiff in 2005. Absent special reason shown to the contrary, I accept the plaintiff's account of incidents of a violent nature which are apt to induce trauma. In these reasons, I propose to use the shorthand description 'traumatic events' to compendiously refer to those events.
The thrust of the inquiry made of her in in cross-examination was her recollections and beliefs upon her dealings with persons within her Chain of Command.
To anticipate things somewhat, where the experts later distinguished between the traumatic events and workplace concerns of bullying, harassment and perceived mismanagement as contributing factors to the plaintiff's development of psychological injuries, the cross-examination almost exclusively focussed on the latter.

[21]

The 'Matthews episode'

Between 21 September 1999 and June 2000, an unpleasant series of events occurred, relating to another police officer, Senior Constable David Matthews, during which, the plaintiff stated, he had made sexually suggestive actions. The plaintiff had narrated that there had been previous tension between her and Matthews. The plaintiff had been in a different rostering 'team' to the one led by Matthews, where the teams had operated in what seems to have been semi-competitive fashion and Matthews was responsible for denying the plaintiff a favour.
The plaintiff reported his conduct to her supervisor, Sgt Robertson (although Sgt Robertson was said to have witnessed Matthews' conduct). She did not, however, make a complaint herself and at that stage went on leave, returning on 14 October 1999. Sgt Robertson took up the matter with Superintendent Trott, Commander of the Waratah LAC, who launched an investigation. But upon her return from leave, the plaintiff understood that Matthews had made a complaint about the plaintiff; and other members of her 'team'. Dissatisfied with Superintendent Trott's lack of response, the plaintiff made a complaint to the Equity and Diversity branch of the police in Sydney. Soon, she was transferred to the Anti-Theft Squad in Newcastle, under Sgt Ian Lovell. Eventually, an internal affairs investigation was conducted; which caused sufficient stress to the plaintiff as to require her to take leave. She felt as if she was the 'person of interest', not the complainant. By the end of this period, she was asked to sign a 'no further action' report, with a view to ending the investigation. This was after being interviewed in 2000 by a psychologist, Mr Agriesti who, on her account, indicated that it was unlikely that any further action would be taken. The plaintiff was dissatisfied with management's response to her report.
The plaintiff's evidence of Matthews' conduct was corroborated by Sgt Robertson, what constituted a complaint addressed to the Police Integrity Commission, which was adduced in the proceeding. But Sgt Robertson's evidence went further and was suggestive of mismanagement. Sgt Robertson accused the Local Area Commander, Commander Trott, of lying. Sgt Robertson also provided a further, more detailed account of SC Matthews' serious misconduct in a written statement. Sgt Robertson's statement also expanded on how the complaint against Matthews snowballed into Matthews bringing his own complaint against Robertson. He also provided other detail of misconduct concerning Matthews.
In September or October 1999, the plaintiff attended a funeral of Bob Williams, at which she was observed to have collapsed. She accepted that she was having increasing difficulty performing her work.
Looking back on the Matthews episode, on 30 January 2002, the plaintiff told a psychologist that she felt guilty and responsible for officers going on stress leave. She felt that her 'unofficial' concerns regarding Matthews' conduct had been mishandled by management.
But returning to the narrative, the plaintiff returned from leave on 14 October 1999 in circumstances which displeased her.
On 17 January 2000, the plaintiff applied for and was denied a position on secondment with the Regional Target Action Group. In April 2000 she requested a secondment to the Regional Anti-Theft Squad. This occurred for some part of that year before she returns to Waratah Station, in a team which was led by James Gill.
On 16 March 2001, the plaintiff had a meeting with Superintendent Lee Shearer. The subject of that meeting was the incidents and events concerning Matthews. The plaintiff said that Officer Shearer had indicated that she was not interested in pursuing the issue and made it clear that she did not wish for people (like the plaintiff) to make waves.

[22]

Commander Shearer

Before proceeding further, I should note that Mrs Shearer was called as a witness for the defendant. She was in the NSW Police Force between 1987 and 2010. She was the Acting Superintendent of Waratah Station from February 2001. She was the LAC - Waratah.
Mrs Shearer said in her evidence that she became aware of a complaint about officers at Waratah and understood an investigation had been carried out into a number of officers before she took her position. She herself was not involved in the investigation. She identified two 'camps' of personnel who were in conflict with each other. She identified personnel who fell into the camp. She acknowledged that the divisions caused internally from these camps caused 'friction'.
In her capacity as Commander at Waratah, she had no recollection of conversations with the plaintiff, including any discussion about the outcome of any investigation.
On 29 August 2001, the plaintiff stopped work at Wallsend. It appears that her supervisor, Sgt Gill had asked her and her partner to leave a job that they were working on to attend John Hunter Hospital and attend upon a deceased person. The plaintiff complained that she was being '"loaded" up with work. A psychologist who interviewed Sgt Gill recorded the latter saying that the plaintiff had described him as a 'crap supervisor' who made 'crap decisions'. She obtained a medical certificate from Dr Moses, her general practitioner, who noted that when she attended she was stressed, depressed, shaking and teary as a result of conflict at work. He diagnosed her as suffering from depression and anxiety and prescribed an antidepressant and referred her for counselling. At about this point, she started to see Dr Murray Wright, a psychiatrist.
She was subject to a Stress Assessment Report of Ms Meg Campbell-Dowling and Mr Rod Gutierrez.
The plaintiff recalled seeing a treating psychiatrist, Dr Wright, who assessed her as being fit to return to work, on full duties, but on restricted hours. This occurred on 30 October 2001. She presented with symptoms of depression. Dr Wright considered that she had had a major depressive episode, which was responding to antidepressant medication and time away from work.
Dr Wright prepared reports dated 6 December 2001 and 29 January 2002. The plaintiff indicated that she had reached the point where she felt she could no longer function. The former report had been provided to the GIO for the purpose of assisting the plaintiff to make a claim. The latter report featured the finding that the plaintiff was "still unfit for work, review again in a month with a view to return as early as March (2002). Expect she will require six more monthly visits." On 22 February 2002 the plaintiff was notified that her claim had been declined.
In February 2002, she was referred to Rehabilitation Concepts to assist with her return to work. In March 2002, she was offered, but declined, peer support.
The plaintiff recalled that upon her return, Superintendent Shearer asked her why she was away sick. The plaintiff had wanted to return to general duties, on restricted hours, but Commander Shearer wanted to know her reason for taking sick leave before considering her request. When the plaintiff answered "Management", she recalled Superintended Shearer saying "I suggest you seek alternative employment." She returned to work on restricted duties. Mrs Shearer did not recall any discussions with the plaintiff after January 2002 about a return to work.
On 11 March 2002 the plaintiff obtained a number of medical certificates from Dr Wright, which refers to the plaintiff's "work related stress" and "major depression". Dr Wright certified that she was unfit in the period from 27 February 2002 until 17 March 2002. She was expected to be fit for suitable duties from 18 March 2002.
The plaintiff returned to work on restricted duties on 21 March 2002. The plaintiff was referred to the minute of a 'Return to Work' meeting on 19 March 2002. Reference was contained within it to an offer to the plaintiff to have a peer support officer but the plaintiff explained that her preference was to rely upon the support of her friend, SC Watters. The plaintiff was asked in cross-examination about this preference. The plaintiff acknowledged that she knew of the position of peer support officer, but explained that she was not going to discuss to a person in that position about her issues concerning Matthews or Shearer, even one from a different command.
On 15 April 2002, Dr Wright cleared her to work with her only restriction being that she work for half of the usual time.
On 15 May 2002, she attended the PMO (Dr Chern). A referral form prepared by Commander Shearer indicated that the reason for it was doubt about her fitness to undertake duties of a police officer. The plaintiff's behaviour was described as "irrational, aggressive and sometimes abusive". Mrs Shearer had no recollection about the referral when she gave her evidence.
In the PMO's letter to Commander Shearer on 17 May 2002, the plaintiff was reputed to be frustrated about her inability to return to operational duties whilst being directed to remain in the station; especially when her own treating psychiatrist cleared her for a return to full operational duties, albeit with restrictions on hours. The plaintiff was also reputed to have been regretful for what was perceived by others as her aggressive and abusive behaviour. The 'plan' was for her to be subject to continuing restriction and envisaged the need to seek clearance from her treating doctor before there be any further review. A note from the PMO File indicates that the issues that were discussed concerned 'Management' and that discussion concerned whether she had Major depression.
On 20 May 2002 she obtained another medical certificate from Dr Wright, indicating that she was fit for part-time full operational duties from that date to 30 June 2002. She saw the PMO again on 21 May. Dr Chern recommended the plaintiff be returned to full operational duties with certain restrictions: working part-time, working in units of no less than two officers when out on operational duties. She was scheduled for review in two or three weeks. The plaintiff was reviewed by the PMO in June 2002 and again before she was permitted to resume operational duties.
In late May 2002 she returned to the Wallsend station. On 31 May she had a meeting with Shearer. The plaintiff was ordered out of the station, asserting that she was escorted by the Duty Officer in a very public fashion.
On 14 June 2002, the relieving LAC, Waratah (B Liston) tasked both Duty Officer Taylor and Acting Sergeant Shiels with monitoring the plaintiff's disposition in the workplace and, specifically, to record observed incidents where it appeared her anxiety levels had increased. It was observed that she had been treated for depression and anxiety.
On 24 June 2002 the plaintiff returned for review to the PMO. The note on the record refers to her being tearful when confronted with the possibility of remaining on restrictions. It recorded the plaintiff's expressing her belief that she was experiencing the same problem with an attempt to transfer her from the LAC. The note recorded the PMO's inference of a 'Continuation of workplace conflict'. The PMO recommended that she work no longer than 19 hours in units of no less than two officers. A reference was made to EAP ('Employee Assistance Program') counselling being of potential assistance to her.
On 8 July 2002 a letter was sent from the Director of Health Services (G Jackel) to the Senior Police Medical Officer. The letter recorded Superintendent Shearer's concerns about her ability to provide suitable duties to the plaintiff. The LAC Waratah had asked to be fully consulted in relation to the plaintiff's rehabilitation program and particularly before she was found to be suitable for operational duties.
On 29 July 2002 plaintiff was reviewed by Dr Wright. The result of it, relevantly, was to see the plaintiff working at the Lake Macquarie LAC. She was assessed as being fit for operational duties for 8 hour shifts, 3 days each week.
On 13 August 2002, Allan Thompson sent an email to the Lake Macquarie LAC, referring to the plaintiff's conflict with the Command management team about her return to work and referred to a discussion with the plaintiff to complete 3 of 8 shifts whilst on rehabilitation at Morisset. The same day, Sgt Williams sent an email to 11 persons foreshadowing the plaintiff's commencement of work at Morisset, in the station area on 19 August 2002.
On 14 August 2002, Commander Shearer raised concerns with the Acting Regional Commander Northern Region about the plaintiff's mental stability and her suitability to remain in the workplace. Commander Shearer attached two witness statements were made by Ms White (a financial controller) and Ms Fielding (staff administration officer), to the effect that the plaintiff had intimidated the latter with a knife. The plaintiff was asked whether she had ever wielded a knife in close proximity to Debbie Fielding. The plaintiff was dismissive of the suggestion, describing it as "farcical".
On or about 19 August 2002, the PMO (Dr Chern) sent a message to Commander Thompson, indicating that he did not support the plaintiff being re-located to Morriset. He was sceptical of the suggestion, apparently emanating from the plaintiff's psychiatrist, Dr Wright, that she be permitted to work alone in the station.
On 20 August 2002, reports were prepared, respectively, by Leading SC Mark Cousins and Sgt Farmer to LAC, Waratah. Leading SC Cousins noted the plaintiff's negative attitudes towards Commander Shearer and Manager Woodbridge and recorded her perception of her being victimised by both of them in relation to the work program and other (non-specified) issues. Sgt Farmer identified the plaintiff's stress-related illness as occurring 4 years before after the plaintiff's complaints about other officers. The plaintiff was recorded as blaming management for her illness, particularly senior management, and made accusations about corruption. She was perceived as displaying "almost" a hatred of LAC and its manager and showing little interest or motivation at work. Sgt Farmer did, however acknowledge that prior to her illness, she was competent and had a good workplace performance.
On 23 August 2002, the PMO (Dr Chern) reviewed the work performance reports. He found no evidence of any concern with the plaintiff dealing with the public and suggested the restriction upon the plaintiff needing to work with another officer (of same or more senior rank) be lifted.
A Return to Work Plan covering the period 26 August to 30 September 2002 approved the plaintiff for full operational duties for 8 hours, 3 days a week. The document identified the plaintiff as having 'depression/anxiety'. Commander Clarke accepted that if WorkCover certificates indicated a psychological condition, than this should have provided notice to HR about the fact, or prospect of that kind of injury. He agreed, further, that the content of the RTW ('return to work') plan constituted notice in command that she still suffered from depression and anxiety. In re-examination, with reference to multiple health practitioners on the Return to Work Plan form, Commander Clarke noted that it was a rarity to have multiple inputs, such as the PMO (Dr Chern), an officer's private practitioner (here, Dr Wright) and reference to reports by the plaintiff's supervisors.
On 28 August 2002, the plaintiff was examined by the PMO. Notes of that examination recorded that the plaintiff had decided to make a complaint about Shearer and had criticised a few people. With apparent reference to Shearer, the plaintiff had used the expression 'divide and conquer'. She indicated that she was relieved when told that she would be transferred.
This was the subject of a report from the PMO (Dr Chern) to Commander Little, LAC Lake Macquarie, dated 10 September 2002. Dr Chern opined in the report that she was 'overly focused' on management matters which may have detracted from her attention to operational duties. The plaintiff was assessed as fit for operational duties. It was noted that the plaintiff continued to see Dr Murray Wright, her treating psychiatrist, for ongoing assessment and treatment.
Dr Chern informed the Superintendent about the review by email that same day. Later in the day, Ms Shearer indicated that the plaintiff had been moved to Lake Macquarie LAC so no longer presented, at least in the short term, a management issue for the Waratah command.
On 29 August 2002, another confidential report of an assessment of the plaintiff was made by Acting Sergeant Shiels at Waratah station. It appears to have been sent to the LAC and staff administration officer at Waratah. It was very negative in its content: although she met basic organisational needs, the plaintiff was described as having a self-centred attitude and did not function as a team member. She was criticised for having little interest in meeting customer needs.
A performance management report dated 5 March 2003 by the plaintiff's supervisor (Williams) recorded that she was 'working well' and that he was pleased with her efforts and work performance.
But between 13 and 17 March 2003, there were internal email communications between Kenny and Shearer on the subject of her relocation to the Lake Macquarie LAC (Waratah), on the proviso that she could return on full duty. The emails suggested a proposed swap, between the Commands, between the plaintiff and Terry Banks. In one email, dated 14 March 2003, Commander Shearer acknowledged the problem of her being managed in the Command in light of the plaintiff's relationship with her.
Under cross-examination, the plaintiff was asked, in retrospect, what her complaint(s) was or were against Commander Shearer. The plaintiff disputed that it was limited to the latter speaking inappropriately to her, although the plaintiff acknowledged that she did not appreciate being threatened with a transfer. Questioned whether it was the extent of punishment imposed in relation to Matthews, the plaintiff said that she was unaware of what punishment had been imposed: she had not been told and she understood that the result of an administrative inquiry was that no action would be taken. When it was suggested that Matthews had actually been 'paraded' before the Commander (importing a disciplinary aspect) the plaintiff was not aware of this. Questioned whether she resented Commander Shearer for writing to the PMO and requiring her to be examined, the plaintiff indicated that it was not the circumstance of being sent to the PMO that displeased her - it was Commander Shearer being untruthful in latter's referral form, in indicating that she was a lunatic, a threat to herself and the public when there was no basis for her to do so. In response to this, the plaintiff was shown the referral form, which was apparently sent on 6 May 2002 to Sydney. The point of this was to query whether, in retrospect, her view of Commander Shearer's comments in the referral form was unreasonable. The plaintiff maintained that there were inaccuracies in the form.
In her witness statements, the plaintiff complained of ongoing conflict with Commander Shearer. In summary, she believed that she was held back from full duties because of Officer Shearer's report that had been provided to the PMO, that there was a deviation from a return to work plan agreed upon, differences of view as to who should assess her performance and events that she perceived as humiliating. There were difficulties associated with the return of a weapon to her. She was frustrated with systems and processes and a lack of contact with managements and her rehabilitation officer. The plaintiff felt that the rehabilitation officer did not have time for a personal service.

[23]

Morisset station: April 2003 to September 2007

In April 2003, the plaintiff was back 'on the truck'. She began to be exposed to witnessing several deaths.
In October 2003, SC Van Hese recommended that the plaintiff be recognised for her initiative and vigilance in patrol, concerning two arrests for a range of offences and potentially averting a more serious offence. This was recognised by the LAC.
An individual monthly performance review prepared on or about 14 April 2004 was positive. She was described as a highly valued team member by the supervisor, Sgt Williams, and noted her contribution as an OHS committee representative.
In 2004, the plaintiff commenced having a conflict with Michelle McSweeney. Officer McSweeney had come from Toronto. Early in their working relationship, on general duties, the plaintiff felt that McSweeney was incompetent in a number of instances; which led to the plaintiff wanting to avoid working with her. Eventually, after a while, the plaintiff told McSweeney what she thought of her, in terms of her work performance.
This came at a cost, and not just to the plaintiff's relations to McSweeney. The plaintiff noticed that other officers within Morisset station stopped talking to her; leaving her feeling ostracised. In August 2004, the plaintiff said she printed an email she had sent to Sgt Williams and gave it to Commander Kenny. She recalled a discussion with Commander Kenny, who intimated that she might want career advancement and a transfer to Toronto. This overture disappointed the plaintiff: she felt it was being offered as a means to quell the issues at Morisset regarding McSweeney and did not believe he was interested in her side of the story. As it happens, by the end of 2004, it was McSweeney who was moved to Toronto. The plaintiff indicated that she still felt ostracised in her remaining time at Morriset, until her last shift at Toronto. She held McSweeney responsible.
Some of the time that she was at Morisset, she would visit Toronto. The Toronto Local Court house covered matters from Morisset police station. The plaintiff recalled being given the 'cold shoulder' by Toronto personnel. She believed that what she regarded as the personal hostility towards her might come to jeopardise her physical safety and recalled one case of a brawl near Toronto Police Station where she felt that she and her partner, SC Robertson, were deliberately denied backup.
On 10 August 2004, the plaintiff received a letter of congratulations from the Chief Inspector Rae, arising from her investigation into break and steal offences in Morriset.
On 12 August 2004, Senior Constable Ashworth, at Morisset, recorded the appreciation of Morriset hospital staff in which the plaintiff assisted to respond to a report of an armed woman locking herself in her room with a large kitchen knife.
On 23 August 2004, the plaintiff sent a 4-page email to Sgt Hugh Williams. The long email set out the plaintiff's difficulties with a range of colleague. A large part of this concerned 'Trevor'. On the third page, the plaintiff wrote about SC McSweeney and she considered that Bryan and Kathy Petheram were giving her the 'cold shoulder' because of their friendship with McSweeney. A handwritten annotation on the copy of the email in evidence indicates that the plaintiff was rostered to work with Luke Richardson, which suited the plaintiff.
An individual monthly performance review for the plaintiff, dated 10 November 2004 noted her absence on sick leave and her personal problems with Senior Constable McSweeney. Her supervisor, who authored the report, wrote that the plaintiff had spoken about this issue with Superintendent Kenny and was not happy with the outcome.
In December 2004, the plaintiff received an award when assisting in relation to the arrest of a Ms Melissa Hunt.
In January 2005 she was assaulted and sprayed with capsicum spray when attempting to arrest a person of interest. This prompted her to bring a workers compensation claim.
On 22 March 2005, the then Constable Richardson recommended that the plaintiff's leadership skills, demonstrated when executing a search warrant (as Case Officer) and seizing cannabis plants, be recognised and recorded on her file.
Senior Constable Richardson gave evidence in the plaintiff's case. She was his supervisor and was paired with her for over 3 years or so. He has a high regard for her, in terms of her knowledge of policing, her high standard of integrity and her contributions within the police station, by service on the OH&S committee and resolving housekeeping issues.

[25]

'dead man Danny' - October 2005

On October 2005, following a report made to the station, the plaintiff and Constable Richardson attended the grizzly spectacle of seeing a deceased man hung in the bush, with his body badly decomposed with much stench. The plaintiff was involved in the removal of the body and had to clean his body fluids of the contents of his wallet.
Senior Constable Richardson was asked whether, in the aftermath to traumatic incidents of the kind he said he and the plaintiff were exposed in June and October 2005 (and others) he was aware of a critical incident report(s) having been prepared. He said he was not. He said that they had not been offered the services of a psychologist. He did recall that after the suicide of Officer Grey a psychologist had been brought in and supplied a brief session. This appeared to be a reference to October 2005 (see below, in the section concerning 'Systems of Work'). He recalled a queue of about 20 officers wanting to speak with the psychologist. He also recalled the Black Dog presentation (also in October 2005).
On 7 January 2006, Acting Inspector Cook sent the plaintiff a list of duties and responsibilities for the position of station manager. He sent an email calling for expressions of interest for the position on 12 January 2006.
In March 2006, the plaintiff had some interaction with Inspector Cornes. She let him know that earlier in the year, her sister had received a diagnosis of cancer. This induced anxiety in her. The plaintiff was asked, in cross-examination, whether Inspector Cornes had taken deliberate steps to adjust the roster for her benefit. She said she did not recall.
On 9 March 2006, the plaintiff informed Inspector Cornes of her intention to report sick the next day, a scheduled training day, and attend an urgent medical appointment which had been arranged, at short notice. It was suggested that Commander Cornes had indicated that she may not be entitled to take the day off, entirely, as 'sick leave', but that there may be alternatives. The plaintiff disputed this. In an email to Inspector Cornes of 16 March 2016, the plaintiff was very critical of his conduct. In cross-examination, it was suggested that the plaintiff was putting her need to attend to a medical appointment ahead of the needs of command. She disagreed and emphasised that she was only missing a training day. The plaintiff did accept that, with the benefit of hindsight, she may have been somewhat unreasonable in sending the email. Commander Cornes regarded the plaintiff as being insubordinate and her account of his dealings with her as being untruthful.
On 15 March 2006, the plaintiff received a letter of appreciation from Mr Garland and Commissioner Maroney for the plaintiff's expression of sympathy shown in relation to the death of Mr Peter Garland.
On 25 April 2006 the plaintiff sustained a back injury in the course of performing an arrest, whilst she was working alone. She was away from work for about 4 weeks. She saw Dr Gabriel about her back complaint in 2010. She brought a workers compensation claim on 8 May 2006 and she obtained compensation after a finding had been made of some permanent degree of impairment. It was put to the plaintiff, but she disputed, that since 2010, she would not have been fit, in the sense of her physical issues associated with her back, to return to general duties.
After her back injury, the plaintiff did not perform general duties again, but was performing clerical work in the station at Morriset and then (after October 2007) Toronto.
The plaintiff said that she spent most of her rehabilitation whilst occupying the station manager's position at Morisset station, to the knowledge of Commander Clarke.

[26]

Commander Clarke

Commander Clarke was the LAC Lake Macquarie, from December 2005 to February 2008. He had an earlier stint of service at Lake Macquarie, for about 12 months, as a relieving Duty Officer, in 1997. The Morisset and Toronto stations were under his command (as were Swansea, Charleston, Cardiff and Belmont). Amongst other things, Commander Clarke said that by virtue of his position, he chaired HR committee meetings, he estimated monthly, which concerned officers under his command (which he identified as being about 170 in number). During those meetings, he recalled, there was discussion about what officers were the subject of long term sick reports, which officers were subject to restricted duties (and the reason for that) and consideration was given to the options for those officers.
Before proceeding further with the plaintiff's evidence about her interactions with Commander Clarke from 2006 to 2008, it is as well to note that when Commander Clarke was called to give evidence on the defendant's behalf, he said that although he did not dispute interactions with the plaintiff, he had only a very general recollection of their content. His recollection was that although the plaintiff was initially on general duties at Morriset, once she hurt her back in April 2006, she was moved to Toronto on restricted duties. He had no recollection of particular conversations with the plaintiff at Morisset.
In her witness statement (Ex B), the plaintiff indicated that although she had the desire to return to full duties, this put strain on her back. A consequence of being on full duties was wearing an 'appointment belt', which comprised a weapon, handcuffs and capsicum spray, weighing 6-7 kg, but Commander Clarke apparently indulged her in not carrying that load from time to time.
On 15 August 2006, the plaintiff sent an email to Commander Clarke concerning a 'welfare project' he had asked her to do. It appears that it concerned efforts to reduce the effect of stress and physical injury on police officers. Within the 6 page document were many practical suggestions on a range of topics dealing with responses to critical incidents, fatal motor vehicle accidents, corruption and bullying and harassment in the workplace.
On 23 October 2006 a detailed 'Proposed Return to Work Plan 1' was prepared. It dealt with her return to work after her back injury. On 21 November 2006 a 'Proposed Suitable Duties Plan No.2' was prepared, again dealing with her back injury. Another plan of that kind was prepared on 30 November 2006.
In November 2006, the plaintiff was reputed to have had a conversation with Jason Bennett, an administrative officer. It was suggested that she had told him of her desire to get back to work 'on the truck', on full duties, albeit on restricted hours. She accepted that the Police Force was desirous of returning to full duties.
On 8 November 2006, Jason Bennett reported to Cheryl Hudson, a Senior Injury Management Advisor, that the plaintiff was ready to work 'in the truck aka full duties' and inquired as to what she wanted to do to get back to full duties.
On 11 December 2006, Inspector Murray Lundberg sent the plaintiff an email. He complimented her on the condition of the property room in the Morriset police station.
On 13 December 2006, the plaintiff and Commander Clarke exchanged emails. The plaintiff had thanked Commander Cole for the opportunity to work as Station manager. She provided him with some information about some operations (singling out GSO Lara for praise) and informed him that she was to commence annual leave from the next day to New Years' Eve 2006. Commander Clarke responded to this email by thanking her for the update and congratulating her upon her "excellent work".
On 4 January 2007, Inspector Murray Lundberg sent an email to the plaintiff. It noted her interest in the station manager's role. The Inspector indicated that the plaintiff's boss had made it 'known that at the present point in time it is conditional on the status of Max Stevens which effects the status of Neil Davies which effects your status [sic]'. Nevertheless, the email went on: "Should it remain at the current status quo you will go into the position on a full time basis."
From about early 2007 she worked as a Station Manager at Morisset, under Senior Constable Davies. She was dissatisfied with what she regarded as a lack of support provided to her. But, in early 2007 it appeared as though she may be appointed as Station Manager of Morisset, on a full-time basis. In her witness statement, the plaintiff indicated that Commander Clarke did not give a commitment as to when, or even if, her 'trial period' as station manager might be converted into a more permanent position. This left her feeling "overwhelmed and confused".
However from 12 March 2007 the plaintiff took sick leave as a result of "situational stress". She did, however, return to the position of Station Manager. In her witness statement, she said she felt unsupported and made to feel as though she was always in trouble: one day she was rebuked by the Toronto Duty Officer for leaving Morriset station unattended, and she was criticised if, because of her leave requirements, or requirements to be in Court, the roster was disorderly.
Commander Clarke was asked whether he was aware of the plaintiff being off work for 'situational stress' in March 2007. He said he was not aware of what the concept embraced (other than a rudimentary understanding of stress caused by some kind of situation) but he was aware that the plaintiff was absent from work - just not the specific cause.
On 19 April 2007 the plaintiff had brought to that officer's attention, what she referred to as the public dissatisfaction with the lack of police, or the accessibility of the police, in the Morisset area. In her witness statement, she noted that the Morisset police covered a large geographical area, from Wyee to Glendale. She referred to a media report. The email indicated that the plaintiff was very interested to see what could be done to improve the image of the police in that area. It prompted a very civil response from Commander Clarke.

[27]

Conflict with Commander Clarke regarding GSOs

But from May 2007, she fell into dispute with Commander Clarke. In early May 2007 the plaintiff sent and received relatively innocuous emails from Mr Jolly, who performed an administrative role.
On 7 May 2007, Mr Paul Jolly sent an email indicating the decision of Senior Management not to have GSOs ('General Support Officers' - an administrative position) working at Morriset, as other stations needed greater support. About 5 minutes later, the plaintiff sent an email to Mr Jolly about this. The gist of that email appeared that she took that decision with equanimity.
But by the next day, the plaintiff appeared to become dismayed by the decision. On 8 May 2007, at 8:41am she sent an email to Commander Clarke which concerned the Commander's decision in relation to the Morisset station. Commander Clarke sent her a short email, in response, explaining that decision. The email disclosed that the decision not to have a GSO at Morriset was made by the HR team about 6 weeks before, having regard to the comparative resources and needs at other stations (Charleston and Toronto). Commander Clarke said (in re-examination) that he was part of (and apparently Chaired) that meeting.
Under cross-examination, Commander Clarke explained that given its size, relative to other stations (especially Toronto), he could not think why Morisset needed a GSO, having regard to the volume of the work. It was put to him that being a full time station manager without one would have created difficulties for the plaintiff, but Commander Clarke disagreed - other managers had performed the role without a GSO before and since. Commander Clarke added that he had no capacity at the time to deploy additional GSOs: if one was to be moved to Morisset, that would be the result of moving a GSO from somewhere else. When it was suggested that this showed that the budget constrained his capacity forcing him to shuffle resources as best as he could, Commander Clarke agreed that he had finite resources to deal with.
This led to an interesting exchange. It was put that Commander Clarke regarded the plaintiff as being a long term 'budget problem', but that if she was forced to retire, that might free up space for him to recover further resources. This cynical, if not callous, suggestion was rejected: Commander Clarke explained that if an officer was discharged, he would simply get another officer. It was not a case of having extra, unutilised funds to deal with. Commander Clarke said that he always believed that the plaintiff would return to full duties; and his objective was to help her to do so.
The plaintiff sent another email to Commander Clarke on 8 May 2007, at 8:50am, asking for a performance appraisal of her work at Morriset. Commander Clarke responded that he would arrange for this. There was nothing acrimonious about the content of the email exchanges on that day.
In her witness statement (Exhibit A, p 24), the plaintiff gave evidence of conversations with Commander Clarke which suggested that she might stay on as a station manager. However, after a Neighbourhood Watch meeting, Commander Clarke foreshadowed that he wanted to 'put her back on the road', with her rotating her duties between time spent as a Station Manager and time spent 'on the truck'. In response to this, the plaintiff told him that she had been using her time as a station manager to get herself back together, as she had been 'sick of being physically and psychologically injured at work'. The plaintiff was not challenged on her account of this conversation when cross-examined. To the contrary, it was put that this was consistent with other indications given to her that the Police Force wanted her back performing full general duties.
Asked about her interaction with Commander Clarke under cross-examination, the plaintiff said in her evidence that she did not have a problem with him until May 2007 when he threatened to put her 'back on the truck', meaning full general duties, after she had informed him that she was struggling. She did not want to go back to Toronto.
When he was cross-examined on the matter, Commander Clarke did not dispute (though he did not recall) announcing that the plaintiff would serve as station manager and understood that the plaintiff wanted to serve in that capacity. In the hypothetical event that he learnt, in 2005 (from his handover) that the plaintiff had Major Depression, he was questioned whether that circumstance would have affected his decision whether to retain the plaintiff at Morisset, Commander Clarke paused, before stating that such a condition might mean that she would have been better off in the larger station (Toronto), where she could be better supervised and feel less isolated.
On 16 May 2007, an invitation to express interest in the position of Alternate Station Manager at Morisset appeared to come to the plaintiff's attention. That day, the plaintiff sent an email to Inspector Lundberg checking whether she needed to apply.
Between 22 May and 6 June 2007 the plaintiff was again on sick leave due to what was described as "situational stress".
On 16 May 2007, she consulted an EAP counsellor. A record of the consultation recorded that she reported 'acute anxiety and stress with underlying depression from which she is currently receiving treatment with antidepressants.' She was provided with CBT (cognitive behavioural therapy) and solution counselling strategies (Exhibit 7, Tab E).
It was put to her that by consulting the EAP, she was acting on Commander Clarke's advice, but the plaintiff disagreed. She said she went because she was terrified about the prospect of going 'back on the street'. The plaintiff was asked whether she had disclosed to the counsellor any psychological effects from being exposed to trauma. The plaintiff said she did not recall. It was put to her that she did not refer to psychological symptoms of stress associated with exposure to trauma - which the plaintiff identified as rushes of adrenaline, outbursts and a lack of concentration - because as at May 2007, she had not experienced them. The plaintiff denied the proposition. She reiterated, at this time, that she was 'scared' about going 'back on the trucks'. The plaintiff was not cross-examined about the matter of follow-up referred to in the note of the EAP consultation.
In about the middle of 2007, the plaintiff began to see a psychologist, Warwick Irvine, who was in Gosford. No evidence was adduced to the content of those consultation.
The plaintiff recalled speaking to Inspector Cath Hawkins on 21 May 2007, and informing her that she was having difficulty at work and that Commander Clarke had not only been unsupportive, but was exacerbating her problems.
On 22 May 2007, the plaintiff said that she unexpectedly received a call from Commander Clarke. She recalled him inquiring why she was off sick and reminding him that she was struggling and of her concern that whilst she was using the station manager's position to get herself back together, she thought that he was trying to take it off her and put her 'back on the street'. She recalled Commander Clarke indicating that she was taking too much leave and that this was impacting upon her ability to perform her role. She recalled that part of the exchange involved her mentioning to him the difficult situation within her family (both her father and sister being diagnosed with cancer within weeks of one another) and what she perceived was his unsympathetic response.
She took sick leave from 22 May 2007 to 6 June 2007. The plaintiff indicated that she took umbrage at Commander Clarke's requirement for her to provide medical certificates to support her taking sick leave.
On 26 June 2007, Commander Clarke complimented the plaintiff after the assistance that she had provided to a prosecutor. The prosecutor had sent an email on 19 June 2007.

[28]

The suicide of Sgt Muir - late June 2007

On 28 June 2007 being Sgt Ian Muir suicided, by hanging himself.
After the latter's death, it was suggested that a psychologist, Ross Leemburgen, attended Toronto police station, at the initiative of Commander Clarke. The plaintiff agreed with that. The plaintiff said she spoke to him twice, though not in any private capacity, and she did not regard the interactions to be helpful.
The plaintiff stated that around this time, she was called to respond to the death of a man at Martinsville who had lost control of a motorcycle. After this, she was soon confronted by the news that a colleague, SC Richardson, had been bitten by an assailant.
On 25 July 2007, the plaintiff sent an email to Jason Bennett on the subject of stress on officers of the Police Force and sought some statistics from him. Mr Bennett referred her message to Mr Jolly, another administrative officer the next day. But Mr Jolly sent a message back to the plaintiff on 30 July 2007, baulking at providing a substantive response, claiming that the matter fell outside the OHS committee's area of concern. The plaintiff persisted in her interest in this area, and continued to meet with resistance.
On 30 July 2007, the plaintiff sent a response to Mr Jolly. Although expressed politely, she did take the opportunity to state that every time she had mentioned factors relating to the management of stress in OH&S meetings, she felt as though she had been 'strenuously opposed' on the basis that this was an issue for management. She implicitly suggested that she should receive the support of the OHS committee.
SC Richardson, who was called by the plaintiff, testified to the plaintiff telling him about her experience about being 'shut down' by the committee when she promoted psychological support for officers.
On 17 August 2007, the plaintiff received an X-ray which revealed that she had broken a finger in her right hand from a horse-riding accident. Eventually she had an operation in relation to the finger.
On 26 August 2007, Inspector Lundberg sent a message to the plaintiff and others, titled a 'monthly review' in which, amongst other things, he commended the staff at Morriset station for its 'excellent' results; reflected in the lack of customer service complaints.

[29]

Suicide of Gray - early September 2007

On 6 September 2007, another colleague and friend, LSC Scott Gray suicided.
That day, the plaintiff was directed back to Toronto station. In anticipation that McSweeney would be there, the plaintiff sought a mediation with that officer, through Sgt Boyd. Ms McSweeney apparently declined to participate in such mediation.
The plaintiff recalled that by September 2007, on management's initiative, a psychologist arrived at the station each Friday, for four weeks. This was Mr Ross Leemburgen. Having regard to Commander Clarke's evidence, the plaintiff's timing for the arrival appeared awry. Mr Leemburgen appeared to come in October.
The plaintiff said she met with that psychologist twice. The first time appears to have been on 5 October 2007. She recalled being upset in both meetings. She took the opportunity to express to him what she regarded as the incompetence of the Police Force in identifying officers with psychological injury and thereafter protecting them from further harm.
The plaintiff identified herself as having a "breakdown" on 5 October 2007 (her birthday). She recalled feeling distraught after speaking with Ross Leemburgen, about the officer's recent death the previous Friday. She thought that Sgt Boyd was dismissive about her having that consultation, being an excuse to avoid finishing a shift at Morisset.
On 5 October 2007, the plaintiff said she had a dispute with her supervisor, Sgt Boyd, resulting in her leaving Toronto station earlier than usual. She made a 'struggling disclosure' in an email in which she referred, amongst other things, to her difficulties dealing with the deaths of officers Muir and Gray. She apologised to Sgt Boyd, ostensibly for what she described as 'bad manners', for what she explained was a lack of professionalism, in crying in a police station. It was suggested that Sgt Boyd later told the plaintiff that he did not like her behaviour but the plaintiff did not recall that being mentioned to him. She did not know whether she told him that she thought she could return to full duties after a 'Rehab shoot'.

[31]

Sgt Boyd's report - October 2007

Meanwhile, on 8 October 2007, the plaintiff spoke with Sgt Boyd and an unnamed person who was an 'association representative'. She did not know it on that day, but thereafter Sgt Boyd wrote a report about her to Commander Clarke. It appears that she only read the report later. The report followed her completion of her shift at Morriset Station.
The report referred to the plaintiff's distress indicated on 5 October 2007. It noted the plaintiff's apology on 8 October and reported upon the content of a subsequent conversation (lasting 90 minutes) with the plaintiff after that apology.
Commander Clarke was asked for his opinion as to the fairness of the content of the report. He said he did not recall receiving it, but after he was shown the report in cross-examination, he said it was reasonable for the station manager to raise and issue and request an 'intervention'. He agreed that an 'intervention' was necessary at the point that Sgt Boyd saw that the plaintiff was crying. He also accepted that Sgt Boyd's report made no reference to the plaintiff's welfare. He did not regard Sgt Boyd's report as amounting to a complaint against the plaintiff. He said that at the time of reading Sgt Boyd's report, he believed that the plaintiff was on 'Restricted Duties' and was being driven from Morriset to Toronto. The restriction on the plaintiff's driving was attributable to incapacity because of her back injury.
As at 11 October 2007, the plaintiff was still unaware of the report. That afternoon, the plaintiff sent an email to SGT Boyd. It was complimentary in its tone. The plaintiff stated that she was unaware of the content of the report at that point.
After reading it, the plaintiff felt that the report was unbalanced. Its focus was upon the plaintiff's need to moderate her behaviour and avoid friction with other staff. Sgt Boyd promised to monitor her performance in whatever way he could to assist Command.
She foreshadowed an appointment with an orthopaedic surgeon, to deal with her back injury. She commented upon her frustration with the lack of support the plaintiff felt she was receiving from the OHS committee to promoting welfare issues in the work environment. It made a reference to her 'first hand' experience of stress stemming from her experience at Waratah. She also signalled a willingness (at that point) to work with Michelle McSweeney.

[32]

Explaining to the plaintiff her move to Toronto station

In the middle of October 2007, the plaintiff was notified by Inspector Odell that she would be transferred to Toronto, for General Duties. She sought explanation from Inspector Odell, who, she said, was unable to supply it.
On 15 October 2007 the plaintiff saw Dr Hutabarat in relation to her finger injury. Commander Clarke was unaware of this appointment.
On 16 October 2007, the plaintiff sent an email to Commander Clarke reiterating her request for reasons for her transfer from Station Manager at Morisset to (Team 2) General Duties at Toronto and for her performance appraisal. Another email that sent to Commander Clarke explained that the doctor had placed her on restricted duties until 19 November 2007, based upon the injury to her right little finger.
On 22 October 2007, Commander Clarke sent an email in response to the plaintiff's email of 16 October. He indicated that he wanted to meet her at 6:30am the next day, but took the opportunity, in the meantime, to provide a short explanation. The gist of this was that the role of Station Manager was not permanent and that she should not treat her move to Toronto as being permanent either.
Commander Clarke said he could not recall these email communications with the plaintiff on 16 and 22 October 2007; although he assumed that he had had them. In re-examination, he said that when he sent the email on 22 October 2007 he did so in the understanding that the plaintiff had the capacity to return to full duties. He added, with reference to her later application to join the Mounted Police, that she needed to be fully fit to be transferred to that branch.
In cross-examination, it was put to Commander Clarke that the email was the first time he had suggested that the role of station manager was not a permanent position. He disagreed with that. He acknowledged that he was indicating by the reference to 'operational', he was referring to general duties. But that did not equate, in his mind, to her being put back 'on the truck'. It was also put, in effect, that it was inconsistent for him to say that he had had 'regular' contact with her and then express, as he did in his email, that it was "very difficult for him to review" the plaintiff's performance.
At the meeting early on 23 October 2007, the plaintiff stated that Commander Clarke supplied her with a performance work appraisal. Commander Clarke did not recall this event, though he did not dispute it. The plaintiff had sought this back in May. The plaintiff was upset with the review. Her performance, when overseeing Morriset station, was described as being only satisfactory and described the extent of her leave as unsatisfactory. Her performance with regard to performing operations was described as unsatisfactory. The plaintiff was notified that the subject of her sick leave was under review.
The plaintiff says that during the meeting, and notwithstanding what was said in the email, Commander Clarke told her that she would be moving to Toronto permanently and would not be returning to a station manager's role. She said that she reiterated that she could not cope with operational duties anymore and said that his response was that he could only offer her fully operational general duties. He added that there were no restricted duties positions, other than to assist station. She said that she reminded him that she could not cope with 'going back on the road' and stated that Commander Clarke's response was to try her luck at another LAC if she did not want to be 'on the road'.
In his evidence, Commander Clarke recalled his involvement in the decision to move her from Morisset to Toronto. His recollection was that she had earlier been sent to Morriset to connect with the community (in different ways), but ultimately he was advised that she was arriving late and sometimes left early to be with her horses and he thought it appropriate for her to return to Toronto. He elaborated that Toronto was a busier station than Morisset and she was likely to receive more supervision and indicated that there may be more flexibility in shifts for her there, rather than at Morisset. Asked whether he believed that his 'relationship' with the plaintiff had broken down after her return to Toronto, Commander Clarke recalled one phone call where she was angry, but did not accept that there had been any 'breakdown'.
As to the meeting on 23 October, under cross-examination, he disputed the plaintiff's account of telling her to 'get back on the street'. He recalled advising her that she would be moved to Toronto on restricted duties.

[34]

Further troubles with Ms McSweeney

On 18 November 2007, at Toronto, the plaintiff had a physical altercation and verbal exchange with Officer McSweeney.
On 28 November 2007, the plaintiff sent an email to Inspector Kath Hawkins regarding her problems with McSweeney, and seeking her advice as to how to alleviate an 'untenable' situation. She said she did not recall receiving a response from Ms Hawkins, verbal or otherwise. The plaintiff appeared to accept that eventually the concern abated when Ms McSweeney was moved to Charleston police station in either late 2007 or early 2008.
The plaintiff accepted under cross-examination that whereas she had made complaints against Matthews and Commander Shearer, she had not made a complaint, in formal terms, about McSweeney.
Around Christmas in 2007, the plaintiff was asked to relieve as station manager at Toronto to replace Sgt Boyd, when he took his leave. She did this for three weeks, but perceived that her performance was being sabotaged by being placed on shift work and rostered to perform the station manager's role, as well as assisting the station. She indicated that she did not think she was helped by her Toronto supervisor asking her to attend Charleston station to assist its station officer. She did not indicate what followed from that.
On 8 January 2008, Mr Ross Smithers, an Equity Officer from within the Police Force, sent an email to Inspector Hawkins on the subject of the dealings between the plaintiff and Michelle McSweeney. Mr Smithers noted that Ms McSweeney refused (in the latter's conversation with him on 11 December 2007) to participate in a mediation, or even try to negotiate undertakings as to future behaviour. The plaintiff told Smithers (on 7 January 2008) that she regarded mediation as being pointless. The content of the message indicated that the plaintiff knew that McSweeney had been transferred to Charleston by that point so the problem was solved. If the situation occurred where they had to work together again, the plaintiff indicated that she would cross that bridge when she came to it. Mr Smithers considered that resolution of their issues had not been achieved.
In cross-examination, the plaintiff was asked whether Mr Smithers, suggested a mediation with McSweeney and it was suggested that the plaintiff had told him that she thought that would be pointless as McSweeney had previously declined. Although she doubted whether she actually said this, the plaintiff acknowledged that it would be pointless if McSweeney declined to attend. She did not disagree when it was suggested that her response, when Smithers asked her what she would do if she had to work with McSweeney again, was to say that she would cross that bridge when she came to it.
On 15 January 2008, the plaintiff saw the PMO. The reason for this was that the plaintiff, who had a long-standing interest in horses, was interested in applying for a position with the Mounted Police. Her application required her to complete a questionnaire. The plaintiff was closely cross-examined about some of her answers to the questions. In particular, question 17 asked her if she had ever suffered from PTSD. Unlike virtually every other answer, the plaintiff did not tick either of the 'yes' or 'no' boxes. She did, however, indicate that she was taking an anti-depressant, cipsomil, each day. It was put to the plaintiff that she did not affirmatively state that she had PTSD since she did not think she had the symptoms characteristic of that disorder. The plaintiff explained that she was unsure whether she had the symptoms of PTSD or not.
Notes taken by a PMO nurse, on 15 January 2008, Ms McDevit noted that the plaintiff was still medicated and her issues were not totally resolved.

[35]

Ms Hanna's opinion - January 2008

On 22 January 2008, the plaintiff underwent an assessment by the police psychologist, Dianne Hanna, for her fitness to join the Mounted Police. A note prepared by Ms Hanna recorded that she was initially calm and friendly in her presentation, until she started to describe her history; which caused her to become tearful. The description of her history referred to events at Waratah and Macquarie. She was recorded as remaining optimistic as to her on-going position in the organisation. The plaintiff recalled, however, that she was not accepted for a position within the Mounted police, not having passed a physical ('beep') test. She was found fit for operational duties, and fit to have access to a firearm. No diagnosis of any psychiatric condition was made. Indeed, Ms Hanna opined that she did not appear 'symptomatic' at the time.
However, on 23 January 2008, the plaintiff consulted an EAP counsellor. No record exists of this consultation.
On 24 January 2008, Ms Hanna sent an email to Commander Clarke that the plaintiff was operationally fit for full duty. The next day, Commander Clarke on-sent that email to the Duty Officer O'Dell, who, in turn, on-sent it to Jason Bennett on 31 January 2008.
On 30 January 2008, the plaintiff sent an email to Duty Officer Hawkins. This was expressed as a follow up to her email of 28 November 2007. The subject was discussing options to deal with her problems with Officer McSweeney. She noted that she felt as though she had been slandered by McSweeney and was anxious to receive a response from management, having heard that the latter had been transferred to Charleston.
On 5 February 2008, she saw Dr Benney, who certified her as having a diagnosis of anxiety and depression because of 'situational stress'. The same day, and on the plaintiff's behalf, Jason Bennett notified an injury, attributable to 'situational stress'.
On 13 February 2008, the plaintiff again consulted an EAP counsellor, and did so again on 20 February 2008.
On 15 February 2008, Inspector Hawkins prepared an Accident/Incident Investigation report, which attached a formal report of the plaintiff's incident with Ms McSweeney the previous November.
Between February and September 2008 the plaintiff underwent various periods of total incapacity and partial incapacity.
Asked in cross-examination whether the plaintiff felt 'supported' at Toronto, the plaintiff strongly disagreed: she felt that Command had not supported the staff, that it did not offer to help her in her dealings with Ms McSweeney and that the message was conveyed to her that she had to 'go back on the truck' as her only viable option. She felt that she was made to feel as if she had done something wrong.
On 11 March 2008, Dr Peter Briggs prepared an 'intervention' report.
On 19 March 2008, an external personal manager, Mr Andrew Folwell prepared a 'Return to work report'. Within that report, reference was made to the plaintiff initially experiencing symptoms of depression "in late 2007" and that by February 2008 she had 'had enough' and felt unable to attend the workplace. Her RTW goal was to return to pre-injury duties as a police officer. Mr Folwell did not consider that she was fit for duties requiring contact with the public.
Whilst on sick leave, on 22 April 2008, the plaintiff was called out to attend a motor vehicle accident and, in particular, came into contact with a large amount of the driver's blood.
On 29 April 2008, Mr Folwell, sent a letter to the Police Force (Sue O'Hara) to summarise her occupational rehabilitation programme. A return to work goal was not established in view of the declinature of her workers compensation claim. Recommendations were made that she attend counselling sessions with management of her condition and attempt a graduated return to work.
On 5 May 2008 a report of Dr Spruce, to Dr Benney, recorded that the plaintiff presented with a mixture of depression and trauma which required more evaluation. The plaintiff went to see him off her own volition because of work. The record contained some significant features. First, the plaintiff perceived in herself some of the 'genetic' qualities of her father, who Dr Spruce believed probably had Bipolar Disorder. She referred to her sense of victimisation, which, to her mind was what caused her transfer to Morisset (2003). She referred to conflict with her advocacy of welfare issues at OH&S committee meetings after the suicides of two officers (late 2007); her emotional reaction to a roadside death. Dr Spruce commented upon a 'compound' of 'depression and anxiety' resulting in her stopping work. He noted that she was frequently distressed and tearful, with fluctuating mood, but emphasised that it would take two or three more assessments before he could indicate what management was appropriate for her. As Counsel for the defendant later noted, no diagnosis of PTSD was made at that time or, indeed, later by Dr Spruce in 2009.
Dr Spruce diagnosed a Major Depressive Disorder and expressed the opinion that she was unfit for employment, from 5 May 2008 to 19 May 2008. He provided a medical certificate.
The plaintiff saw Dr Spruce again on 21 May 2008. Another report from Dr Spruce, dated 23 May 2008, referred to the plaintiff reporting upon her depressive symptoms also have been experienced from 1999. She had described herself as a 'whistle-blower' against corruption in the station. In another report of Dr Spruce, dated 30 May 2008, the practitioner opined that it may be in her best interest to leave the Police Force. There was enough evidence to grant medical retirement given the level of her depression and dysfunction in association with that, with the unlikelihood of that improving with antidepressant medication and psychotherapy to the point where she could resume her former position. He prescribed a trial period of Efexor.
The plaintiff did not recall telling Dr Spruce that she may want a medical discharge. When it was suggested to her that she may have told Dr Spruce that she was unlikely to return to work because of her anxiety, the plaintiff responded that she had wanted to return to work.
The plaintiff returned to see Dr Spruce on 28 May 2008. By this time, other problems were occurring in her life: her partner had gambled away the sum of $35,000. The plaintiff also reported that her sister attempted to commit suicide two weeks before. She was upset, apparently, at the Briggs report of 11 March 2008. Brigg's report was based upon several statements from other persons. The report referred to the plaintiff in very unflattering terms, which distressed her even more. Dr Spruce had suggested she increase her medication, which she did.
Under cross-examination, the plaintiff said that she did not tell her colleagues that she was seeing Dr Spruce. Asked to compare the effectiveness of the treatment she received from Dr Spruce and Dr Murray, who was her treating psychiatrist, she opined that the latter was much better.

[37]

Management of the plaintiff's special sick leave & conflict with Superintendent Rae

On 3 September 2008, the plaintiff put in an application for 'special sick leave', which was granted. She received 'special sick leave' from 8 September to 15 December 2008.
This sick leave was interrupted in early November 2008 when the plaintiff was informed in a telephone call from Uyen Maxell, an injury management adviser, that she either had to upgrade her capacity for work or lose her entitlement to special sick leave due to the requirements of her new commander, Craig Rae.
The plaintiff saw Dr Spruce on 28 October 2018. He suggested she increase her medication and return to work in 2 weeks. Dr Spruce noted the plaintiff describing that she felt 'forced' to be at work and was still depressed with the 'background' making a 'major contribution'.
On 7 November 2008, the plaintiff spoke to Commander Rae. Under cross-examination, the plaintiff generally agreed that Commander Rae, who had occupied the position for only a week or so, had indicated that he knew a little bit about her from a handover that he had received from the previous Commander, that he had a number of issues to deal with, that he needed to take advice which would consider her files. It was suggested that her taking affront at Commander Rae's approach was unreasonable. The plaintiff disagreed. She accepted that there was a discussion about reference being made to a rehabilitation file, but from her point of view, there was not much of a file to speak of. She said that she was put off when Commander Rae 'yelled' at her. She accepted that she had proposed that future conversations between them be recorded but he informed her that this would be illegal.
That day, she saw Dr Benney and received a certificate. By now, the plaintiff felt that her position was "untenable". She was challenged about the reasonableness of her expectations of Commander Rae.
In a witness statement of Superintendent Rae, tendered by consent, the officer explained his view that on the basis of his reading of her file, she did not satisfy the criteria for special sick leave and, on the basis of that belief, warned her that the special sick leave provision was 'basically going to come to an end'. This prompted what Superintendent Rae described as abusive conversation.
The plaintiff did not recall returning to work on 10 November 2008. Records indicate that this was her last day of work.
A letter addressed to the plaintiff from Commander Rae, dated 10 November 2008 was shown to her in cross-examination. The plaintiff indicated that it was sent to an old address, so she did not receive it.
She consulted Dr Spruce on 11 November 2018. Dr Spruce's note that day recorded her sense of having had a 'hostile and uncooperative' exchange with Superintendent Rae. Dr Spruce reported that she came away 'crying and depressed and suicidal for a day and then it clicked that it was never going to change'. The plaintiff was reported as contacting her solicitor to work on a way out.
On 28 November 2008, a clinical note of Dr Spruce recorded that the plaintiff was back at work, part-time, but felt forced to be there. Superintendent Rae did not recall her attending work at all.
A workers compensation claim form was lodged on 3 December 2008.
In a pre-liability assessment, dated 12 December 2008, Dr Raymond Field, a psychologist, recorded the findings of his assessment of the plaintiff which occurred on 27 November. He assessed the plaintiff as meeting the criteria for a diagnosis of a Major Depressive Disorder, being moderate to severe in degree, without psychotic features. Dr Field opined that this condition was present on 10 November 2008. Dr Field noted that the plaintiff had been diagnosed with mild depression in March 2008 (an adjustment disorder with depressed mood), but her condition since then have markedly deteriorated; reflected in her current diagnosis of major depression with prominent anxiety related symptoms.
The plaintiff was put on extended leave from 16 December 2008. She did not resume work after that time.
On 16 December 2008, the plaintiff saw Martin Peters, a consultant psychologist. He diagnosed 'Major Depression'. In his later report dated 13 July 2009, Mr Peters identified the complaints that the plaintiff made at that point about the Police Force as comprising:

her sense of being ostracised and harassed by management in response to her advocacy of OH&S issues and the welfare of officers;
her sense of being ostracised following the Matthews episode, whilst at Wallsend, and her sense of devastation when she agitated to Commander Shearer to have the investigation re-opened; and her on-going conflict with Commander Shearer, who she considered harassed her.

[48]

Report of 30 May 2014

In his first report, Professor McFarlane commented upon his personal assessment of the plaintiff on 24 October 2013 and interview with her on 24 January 2014. He noted that he took a history from her in the sense only of asking her about her events and reactions. He also reviewed a range of treating medical reports in relation to the plaintiff, going back to the latter part of the 1990s and also, importantly, the plaintiff's witness statement which became Exhibit A - the plaintiff's more contemporaneous narrative account of the events.
In his examination of the plaintiff's mental state, he perceived that the plaintiff tended to avoid her traumatic exposures and concentrated upon discussion of her 'administrative and procedural issues'. He also observed that she had limited insight into her disability - she had a defensive strategy to deal with her feelings of vulnerability, manifested by a strong moral sense of right and wrong which could bring her into conflict with others. This, Professor McFarlane opined, was driven by an inner sense of traumatisation. But the plaintiff could not understand how this impacted upon her patterns of communication and behaviour.
Professor McFarlane diagnosed chronic Major Depressive Disorder and PTSD. Professor McFarlane indicated that he had not seen the PMO's files, or the NSW Police Force psychology file. But with that reservation, Professor McFarlane went on to construe the plaintiff's difficulties in dealing with her management. He considered that she was someone who championed the causes of others who were in difficulty as a way of dealing with her own distress; which explained why her history was dominated by reflections about her dealings with command, rather than her symptoms and difficulties. He also noted that irritability and interpersonal difficulties were significant accompaniments of PTSD. A problem was that those difficulties with management - regardless of whether her perceptions were objectively grounded in reality - produced a vicious cycle whereby her distress and agitation increased as a consequence of her conflicts with her colleagues. Professor McFarlane opined that the impact of the traumatic events whilst the plaintiff was a general duties officer played a substantial role in contributing to her condition. He believed that the consequence of her symptoms was manifest in her propensity to take strong positions in relation to a number of work related matters, but added that this was more a 'sign of her disorder rather than the cause.'
Asked whether it was possible to single out any particular events which, individually or in combination, caused injury, Professor McFarlane pointed to traumatic events at the beginning of her career and in 2005 and 2006. But his general point was that the later events strengthened the conditioned link between her traumatic memories and her fear and horror memories, which are central to PTSD.
Asked whether it was possible to pinpoint a time when symptomatology of a psychiatric injury was sufficiently evident to her employer of a risk of injury, or a risk of further injury, Professor McFarlane noted Dr Steele's report (21 September 2011) which had identified 2005 as the date of onset of her symptoms, after a series of traumatic exposures, being especially the episode concerning 'dead man Danny'. (Dr Steele's report was not referred to by either party during the trial and did not appear to be in evidence). He also alluded to the plaintiff's suffering of a back injury, resulting in a prolonged absence of work and likely to exacerbate her anxiety and distress. Professor McFarlane initially identified the back injury as occurring in 2005 but later corrected himself and referred to it occurring in April 2006. On that basis, he thought the end of 2005 was the point where there was sufficient symptomatology warranting concern. Later however, he appeared to correct himself by saying that her return to work, after ANZAC Day 2006, marked the 'critical turning point'.
Professor McFarlane also added that NH&MRC Treatment Guidelines for PTSD published in 2007 (based on evidence available in 2006) noted that one of the known presentations for PTSD was an individual presenting in prolonged periods of 'numbing and increased interpersonal insensitivity .. manifest as inappropriate … conflict with supervisors.' Further, for emergency personnel, a person's anger is an emotion associated with increasing severity of PTSD.

[53]

Dr Vickery

Dr Vickery is a psychiatrist and pain management consultant. He first saw the plaintiff on 30 April 2010 for the purpose of an independent medico-legal examination. He prepared a report the same day (Exhibit 1). He noted as part of the plaintiff's history her view that "things went downhill" after her attendance at a fatal motor vehicle accident in 2005. He noted that she had put in HOD forms in October 2006 and 2007.
At the date of this report, at least, Dr Vickery found no clinically significant anxiety or depression or diagnosable psychiatric injury. As will become apparent, Dr Vickery changed his position on this.
Dr Vickery saw the plaintiff again on 6 July 2011 and reported the same day (Exhibit 2). He noted that the plaintiff was 'belligerent, negative and resented' the assessment. At that point, he maintained that her current condition and disabilities were not consistent with any work-related incident. Whilst he did not regard her as exaggerating of feigning her complaints, he considered that she had 'Obsessive Compulsive Personality', being obsessed with a quest for vindication and compensation in relation to her criticisms of the Police Force. She had an 'Obsessional Personality Type.' He accepted, however, that she was not fit for Police duties or other duties. He considered that her prognosis was poor.
Dr Vickery prepared a further report on 30 July 2015, following a further assessment (Exhibit 3). He noted that she had made a claim for psychological injury in 2001 and lodged claims on 25 October 2007 and 21 April 2008. He noted that she had been treated for antidepressant medication since 2001.
Dr Vickery referred to a referral form supplied by A/SOA Debbie Fielding in the middle of 2002, where concern had been expressed about the plaintiff being 'irrational, unpredictable and uncooperative'. He also referred to a claims intervention report of 11 March 2008 noting that the plaintiff had spoken to Dr Benney in negative terms about her Commander, and other things. Dr Vickery did not identify PTSD symptomology. Dr Vickery then quoted at length, the psychologist, Mr Peters' report of 13 July 2009. From this, he opined that psychological services had been supplied to the plaintiff, however the plaintiff was intent on 'blaming' the Police Force which he regarded as being consistent with her 'lack of insight'.
Nevertheless, Dr Vickery adjusted his previous diagnosis and in his 2015 report, diagnosed a Chronic Adjustment Disorder with Anxiety and Depressed Mood on the background of a Personality Disorder (type B). He did not find any indication of Major Depression.
He believed that her Chronic Adjustment Disorder, from 2001 was aggravated and exacerbated in 2007, 2008 and 2010. He estimated that the aggravation and exacerbation associated with claims in 2007, 2008 and 2010 accounted for 80% of her current disability (Exhibit 3, p 13). He did not regard her as exhibiting any PTSD symptomology. He thought that her prognosis would significantly improve after her claim was finalised.
Dr Vickery prepared a final report dated 3 November 2020, following an assessment in October 2020 (Exhibit 4). He noted that the plaintiff was 'tense, frustrated and hostile' at times and was 'fixated' on her negativity. He reported no change since his previous assessment (p 5).

[54]

The Joint Expert report

Professor McFarlane, Dr Murray, Dr Vickery and Mr Mutton met, in conclave. The results of that were contained in a Joint Expert Report dated 14 January 2021 (Exhibit W). There was significant common ground, although a qualification to that is that in the absence of his personal assessment of the plaintiff, Mr Mutton felt disabled from venturing certain opinions.
First, the experts agreed that the plaintiff suffered from PTSD and a Major Depressive Disorder.
Secondly, they at least agreed that her PTSD had arisen in direct consequence of the cumulative trauma exposures she endured in the course of her career as a police officer. More often than not Major Depressive Disorder is a comorbid condition, although it may also arise as an independent condition. They agreed, in short, that her PTSD was caused by her service within the Police Force.
The extent of the disagreement is as follows. Professor McFarlane and Dr Murray also attributed her Major Depressive Disorder, primarily, as a consequence of her exposure to traumatic episodes. Although they acknowledged that the plaintiff had an 'adaptational' or 'attributional' style, which could cause difficulties with management, this circumstance did not negate the centrality of her trauma exposure as the primary cause of her condition.
Dr Vickery, in contrast, considered that the plaintiff's Major Depressive Disorder was contributed by her own attributional style and her service. Mr Mutton reasoned to similar effect.
Thirdly, they agreed that the 'traumatic exposures' which were only made possible through her service were critically relevant to the causation of her PTSD. There were some, relatively minor, differences in opinion between the experts as to the significance of other 'occupational stressors' on her developing that condition. This was complicated, in the plaintiff's case, by reason of the circumstances that led to her being transferred from Wallsend to Morriset and the 'pre-emptive' complaint made by Inspector Matthews against her. The experts agreed that these events diminished her resilience to traumatic events and contributed to the Major Depressive Disorder.
Fourthly, they agreed that no singular event contributed to her psychiatric condition. There was a series of traumatic events, but also occupational factors that affected her functioning.
Fifthly, the experts agreed that it is not an 'inevitability' for a police officer to develop psychiatric injury as a consequence of his or her service.
Sixthly, it could not be precisely pinpointed when the plaintiff's psychiatric condition incapacitated her for service with the Police Force. Police officers with conditions of this kind often 'fluctuate' in relation to their condition: there may be periods where the condition is severe, and requires time off; during which treatment might be effective; leading to the officer returning to work on restricted duties. This was the case with the plaintiff: she had an initial psychiatric injury in 1999, and had another absence from work in 2002. But she was capable of returning to duties as a station manager at Morisset; where she was not performing front-line general duties. This implied a residual partial capacity to work, but only partial incapacity to perform the entire spectrum of roles generally expected of front-line officers.
But after she returned to Toronto (late 2007), her further traumatic exposures, along with a back injury (in 2006) resulted in total incapacity.

[59]

Testimonial evidence

Between December 2005 and February 2008, Commander Clarke was the LAC Lake Macquarie. He gave evidence that he tried to be accessible to officers; trying, for example, to get around to each station within the region and talking directly to officers about their issues. Commander Clarke had formerly been at Lake Macquarie, but only for a brief period prior to the above stint. He was challenged, early in his cross-examination, as to whether he had oversight of the effectiveness of policies to ameliorate police stresses whilst he was away elsewhere. Commander Clarke indicated, in re-examination, that the policies were, or were intended to, uniformly applied to the Police Force. He added that it is the Human Resources section, or branch, of the Police Force which was responsible for the development of such policies.
During that particular tenure, he gave evidence of the following services available for officers to assist them with their welfare. He referred to the EAP, the presence of police chaplains, and the existence of a psychological branch in which officers could participate in 'critical incident debriefs'. There was also the PMO, whose psychologists were available to assist officers. There were also psychologists in Sydney who officers might see as a 'psych shoot'.
Commander Clarke accepted that it was only after the suicides in 2007 that he took steps to try to bring about the introduction of a psychologist. He was challenged upon the adequacy of the Police Force relying upon PSOs, who were not trained psychologists and the extent of promotion or promulgation of the availability of EAP. He did not recall the situation referred to by LS Richardson of any queues to see a psychologist.
He identified, as the goal of this support, getting officers back to full duties. If that could not be achieved, officers were to be found suitable, restricted duties. If no suitable restricted duties could be found, officers would have to be medically discharged. He said that officers were subject to case management, in which a range of sources, including but not limited to the PMO, were utilised to determine what might be done.
Under cross-examination, it appeared to be suggested, that upon his assumption of command, and through what he learnt in human resources committee meetings, he would have come to learn who were the personnel who had histories of being off work and the reasons for them and was asked about the long term plan for such persons. Commander Clarke said that his objective was to have them return to full-time duties, but if that could not be achieved, he would try to seek suitable duties, with long-term permanent restrictions. In re-examination, he said he could not ever recall placing an officer with long term permanent restrictions. Technically, it was not his decision whether someone would be medically discharged, though he accepted his recommendation carried significant weight.
It was put to Commander Clarke that the psychological branch had ceased to function in 2005, but the witness disputed this: he said command still used the branch to assist with strategic advice.
Commander Clarke was asked whether, given the significant change as to the understanding of responding to traumatic exposure since he started in the Police Force (in 1978), he understood that in some commands some persons might adopt a blunt approach, in effect, admonishing officers evincing signs of upset to 'suck it up'. Commander Clarke said that that was not his experience.
Commander Clarke was asked about the power of lower-level supervisors, upon seeing officers in distress and whether they were empowered to 'get off the truck', ie stop frontline duties. Commander Clarke said that, in his view, this was for a station manager, but was not necessarily limited to that person. It could be any senior manager. Whilst, ideally, the station manager might re-direct a distressed officer into alternative duties, he or she might direct the officer to go home and advise him or her to see a doctor. To vary the hypothetical, if the station manager was aware of the officer's background, that might affect the outcome (as an absence of awareness might).
It was suggested that in circumstances (like the plaintiff) where a serving offer had had his or her claim declined, the system was such that the officer had to bear the cost of treatment and use up sick leave entitlements before having to go, cap in hand as it were, to prevail upon the commander to approve special sick leave. I understood Commander Clarke's evidence to be that he could not recall an instance where such application for approval would be declined. Otherwise he did not substantially disagree.

[63]

Professor McFarlane

In Professor McFarlane's first report (30 May 2014), the expert noted that he had not seen the police records appraising her fitness for duty. Nevertheless, he ventured certain general observations. First, it would have been appropriate to define the potential hazards and risks to her and define a series of career alternatives which maximised her continued capacity and prevent further injury. This would, if necessary, have required a detailed psychiatric assessment including a characterisation and definition of stressors and workplace exposures in the workplace as significant contributors. Professor McFarlane alluded to the plaintiff's workplace conflict in 2007 in this regard. He also alluded to the plaintiff's requests and issues about her role as a station manager as these were indicative of her psychological condition.
Asked what would have occurred if the steps had occurred, Professor McFarlane noted that after her back injury, she was not placed on general duties. On the basis of that understanding, she faced ongoing employment stresses. He considered that if appropriate assessment was conducted and she was provided with appropriate treatment, including assisting her to secure an appropriate permanent position in the Police Force, she would not be permanently disabled. Whilst she might have some residual symptoms of PTSD, the chance of a better outcome would be in the order of 60% (Exhibit R, p 25).
In his first report, Professor McFarlane considered that the plaintiff's requests that she not notify the relatives of the deceased or jobs should have identified her as being at risk. Further, or perhaps alternatively, upon her return from her back injury, her emerging conflict as to her placement(s) and duties should have led to her supervisors having a psychological assessment conducted, which would indicate the plaintiff's symptoms and complaints. This should have led to a return to work program that had a significant degree of certainty and recognised her limitations.
Asked what sort of intervention would have been appropriate for the plaintiff, the plaintiff indicated that she would have benefited from an educational program, helping her to understand how psychological difficulties can manifest themselves in conflict with supervisors. Professor McFarlane emphasised that during the course of his assessment with her, the plaintiff reconsidered her behaviour when asked certain questions. He perceived that on occasions through her career she had been 'fighting for her own needs and rights by addressing the predicament of others'.
In terms of the implementation of such intervention, Professor McFarlane suggested that general duties officers should be subject to ongoing and regular screening, directed to identify officers with significant symptoms. In particular, the consequences of symptoms should be ascertained in terms of their relationships with colleagues and supervisors. The NSW Ombudsman's Officers Under Stress Report (1999) had highlighted the failure for longitudinal monitoring of officers after significant trauma exposures.
Professor McFarlane considered that general duties officers should be screened, at a minimum, on a 5-year basis. They should receive a planned career structure, addressing the progressive limitations that may emerge in the course of an officer's career. He explained that after a decade or more of experience, the repeated exposures of officers to traumatic events had the cumulative impact of increasing the development of psychiatric illness. Combined with any physical injury, and the ageing process, a person's resilience and capacity to withstand the challenges presented was likely to decline. This did not factor in also the possibility of a decline in an officer's general health.
If, and when, they are identified as having a psychological impairment, Professor McFarlane believed that officers should be provided with treatment, and also be sustained within the workplace in a role consistent with limitations arising as a consequence of their injuries.
In Professor McFarlane's second report, dated 15 December 2015, the expert reviewed the police psychology file. Having reviewed it, he thought it was strange that there appeared to be missing any assessment of the plaintiff after the 2005 'dead man Danny' event as to whether she had PTSD. He further observed that there did not appear to be any point where the hazards and risks of the plaintiff performing her policing duties appeared.
In the second report, Professor McFarlane reiterated his view from his first report that the plaintiff would have benefitted from 'psycho-education' programs and that the Police Force should have put in place a comprehensive program for identifying and managing the risks of the probability of officers developing PTSD. He elaborated, further, that there should have been a comprehensive system for officer training, including training for supervisors, and regular screening and a careful assessment of the risks on return to work for an officer like the plaintiff.

[64]

Dr Murray

Similar to Professor McFarlane, in his first report, Dr Murray also opined that with appropriate training of staff and awareness of mental issues, interventions could have been made at various points of time, being in 1995, in 2001 and 2005. Although there were some differences as to the content of the intervention at these intervals, to take 2005 (the time when Professor McFarlane opined there was a need for intervention), Dr Murray mentioned that the intervention should have consisted of:

assessment by the PMO;
encouragement to lodge a P902;
encouragement of a nominated treating doctor and, at that doctors discretion, referral to a treating specialist and/or psychologist;
time off;
eventual graded return to work under a properly constructed RTW Plan, including relevant medical restrictions, probably including a period of rest from front-line duty;
proper injury management, including protection from ongoing injury in line with medical restrictions, establishing an ongoing relationship between the plaintiff and a suitable 'Police Injury Management Advisor', allocation to suitable duties, allocation to permanently restricted duties, encouragement to and facilitation of ongoing medical treatment; and
ongoing medical surveillance.

Dr Murray referred more generally about what he called 'primary and secondary prevention' by emergency services, in relation to PTSD. This featured:

more selective psychological screening of recruits;
advice or training about the emotional, moral, existential and spiritual issues that they will inevitably confront;
referral for assessment and treatment immediately after exposure to a traumatic incident;
rostering and redeploying officers, after their exposure to incidents, with regard to individual risk management;
picking up psychological warning signs (declining performance in early symptoms);
directing symptomatically personnel to specialist assessment and treatment; and
facilitating and 'normalising' screening, referral and treatment; and
monitoring the impact and efficacy of policy around the risks.

[66]

Mr David Mutton

Mr Mutton is a forensic psychologist. He served as a Senior and, ultimately Chief, Psychologist in the Police Psychology section of the New South Wales Police Force between 1990 and 2001. He did not personally assess the plaintiff, but he read a range of reports. They did not include reports from the plaintiff's experts.
Mr Mutton reported from the perspective of someone whose responsibility was to develop and implement policies to recognise and address the impact of stress on serving police officers. His intent was not to address the specifics of the plaintiff's complaints.
Mr Mutton identified a number of support services for officers during the plaintiff's career in the Police Force from 1992 until 2010, all managed within the safety command. These were:

a Police Psychology section;
drug and alcohol counsellors;
Peer Support officers (estimated to be 1000);
a contracted Employee Assistance Program (EAP)

Mr Mutton also identified two further services.
First, there was a state-wide Chaplaincy service, comprising full-time chaplains to provide counselling and pastoral care.
Secondly, a 'WellCheck' service was implemented in the mid-2000s to help screen personnel psychologically for employees in 'high risk' areas. Officers were interviewed four times a year by a police psychologist with regard to their coping. Mr Mutton described this group as being in a state of evolution.
The psychology section served to provide critical incident stress management services and individual counselling for officers and family members. From the late 1990s, Mr Mutton explained that the section could refer personnel to external private providers at an overall cost to the Police Force about around $600,000. This was to supplement the services performed by internal psychologists.
The psychology section also provides stress management lectures to police officers on topics such as recognising the symptoms of stress, potential causes of stress and how to deal with them and how to access support services within the organisation.
In 2001, he said that the EAP was established in 2001. Mr Mutton explained that the model provided a state wide network of registered psychologists who could guarantee a 2 hour response. Officers were entitled to access 6 sessions over 2 years. Staff were assured confidentiality in the sense that the police organisation was only supplied statistics. (For officers who needed more, they were encouraged to see their general practitioner and receive a referral for a psychologist or psychiatrist.) Mr Mutton explained that the EAP was promoted in various ways, with a phone number advertised in a range of publications, pamphlets and notices in various locations and, more recently, over the police intranet. Since 2005, it has been only external psychologists who have supplied direct counselling, or a critical incident debriefing service.
A Peer Support officer program was piloted in the Psychology section which went state-wide in 1992. The aim was to educate and select serving police officers and public servants to act as immediate support agents who could identify, refer and support colleagues identified as being distressed (for whatever reason). PSOs undertake a three-day training program to teach personnel how to recognise and respond to fellow officers in need of help. Awareness of this program was promoted by face to face lectures at certain locations, posters and brochures, police newspapers and, latterly, the police intranet.

[82]

Assessment of experts

I was most impressed by Professor McFarlane. His credentials in this field were unmatched. Many times other experts, and not just Dr Murray, agreed with his views to the point of deference. He listened very closely and his answers made it clear that he was only responding to the assumptions contained within the questions.
Dr Murray, not surprisingly, agreed and, I perceived, deferred to Professor McFarlane's views on general clinical matters. He had the advantage over other experts of having the closest association with the plaintiff. I noted that Professor McFarlane deferred to Dr Murray's views as to specific matters pertaining to the position of the plaintiff. But reading Dr Murray's reports, I detected such closeness in his association with the plaintiff, and especially such sympathy for her predicament, as to wonder whether he might have been too close to her such as to affect his professional objectivity, so I view his evidence with some care having regard to that reservation.
I found Mr Mutton's policy-based perspective to be useful but it had its limits where most of the questioning was directed to the particular context of the plaintiff and her circumstances. To his credit, during the course of the concurrent evidence, Mr Mutton expressly refrained in certain instances from venturing opinions about the plaintiff's circumstances, even when invited to do so. I consider that he was balanced and open-minded.
I was less impressed with Dr Vickery. I formed the impression that he had certain inflexible views, reinforced by his adverse impressions of the plaintiff from assessments of her, that the Police Force were blameless for her predicament. I apprehended that he was particularly influenced by the negative views, in written reports, of the plaintiff's personality expressed by personnel, for example, within the PMO and he was put off by what he regarded as the plaintiff's abrasive style during his assessments of her. It did not appear that he ever considered whether that abrasive style was itself partly a reflection of underlying psychological distress or injury in the plaintiff, an approach which, in a psychiatrist, I regard as narrow-minded. Sometimes, as indicated, his position was an outlier position, (such as his view of her having obsessive compulsive disorder ('OCD') or personality disorder) compared to Mr Mutton, which I considered reflected a degree of intransigence. He appeared during the process of concurrent evidence to chafe at questions raised of him by the plaintiff's Counsel, given the limited nature of the assumptions. Whilst that was understandable, Counsel for the plaintiff had not by then had the opportunity to ask questions of him, which eventually happened. This led to the result that some of his answers were non-responsive; and on such occasion, I sensed that his evidence was veering towards advocacy on the part of the Police Force.

[83]

Limits on the value of the evidence of the experts

Although I derived assistance from and taken into account what the experts said when they gave evidence concurrently, I wish to indicate that I did not overstate the weight of their evidence, not through any fault of the experts.
Most of the concurrent evidence was in response to questioning by Counsel for the plaintiff. Many of Counsel's questions were premised upon a range of hypothetical assumptions (naturally given without notice), necessarily limited, and upon which the experts were asked to opine upon whether conduct of the Police Force fell below the 'standard of care'. There were inherent difficulties with evidence given in response to questions of that kind. First, as indicated, the assumptions were narrowly framed. That itself was no insuperable problem, since it would have been open to Counsel for the defendant to put other assumptions if he wished and elicited possibly different evidence. Secondly, the technique carried several tendencies which the Court has to be astute to assess.
The first of those is the danger of hindsight bias. There was a danger that these experts were being asked, in retrospect, including information they possessed at the trial but which was not in possession of decision-makers at the time, to evaluate conduct when the test for breach is prospective. The second tendency was that the technique was apt to elicit what the experts, from their psychological or psychiatric perspectives, would have wanted to have happened. But the test for negligence is what was, or were, the reasonable response, or responses, in the position of the plaintiff's supervisors or commanders in the light of an assessment of risk. As authorities in this area (which I refer to below) indicate, issues of breach have to take into account the exigencies of a police officer's service in an inherently hazardous workplace where responsibilities and statutory obligations are owed to the community in general. A third tendency, associated with the second, is that the question on breach is not whether something else that was not done could have been done which might have produced a different outcome, but whether the failure to take that step was unreasonable. To take an example. A prominent theme throughout Professor McFarlane's written and testimonial evidence was to emphasise that in his experience associated with the Australian Defence Force, and possibly other organisations, formalised steps were taken to ensure that certain members receive mandated monitoring for their mental welfare at discrete intervals. He believed those steps would also be appropriate for the New South Wales Police Force. Reasonable minds may differ as to whether that policy is desirable, and there is no question about Professor McFarlane's suitability to express view, but a question, not seriously addressed in the evidence or submissions, is whether any omission to institute such policy at an organisational level was unreasonable. Plainly that would involve cost and also have other implications for the distribution of resources. But if it was not unreasonable at an organisational level, it would be easy for a proponent of such policy, like Professor McFarlane, to consider that at a unit level, or even more narrowly, in the case of an individual supervisor, the policy should have been implemented. However, the issue remains the same, even at the lower level: the question is whether the failure to take a suggested step was unreasonable.

[86]

Principles

As noted, the Court need not concern itself with ss 5B or 5C of the Civil Liability Act 2002 (NSW), however, it is concerned with the so-called 'Shirt calculus'. The reasonable response, by the Police Force, to the foreseeable risk of its general duties officers suffering psychiatric injury through their exposure to traumatic incidents requires consideration of the "magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have [5] .
I consider that there is virtually unarguable that the probability of the risk that front line officers exposed to traumatic incidents over the course of a career in the Police Force would suffer psychiatric injuries is high (the same may be said for other emergency services, such as the ambulance service). The general issue is the response of the Police Force to that risk.
The considerations adverted to in Shirt, and especially the consideration of 'other conflicting responsibilities' are to be tailored to the responsibilities operating on the Police Force and individual officers, especially in relation to the requirements for obedience to lawful orders and the carrying out of lawful duties [6] . Further, in assessing the adequacy of response to the risk, the focus needs to be on how police officers should have been instructed to perform their work. The task is to identify the system of work that was, or should have been, prescribed in response to the risk of psychiatric injury [7] .
With reference to the special character of the service of police officers, in Briggs, Leeming JA (with the agreement of Ward JA) also observed (at [67]-[68], with reference to the views of Callinan and Heydon JJ in Fahy (at [208]-[212], that the appropriate response, by way of formulating a system of work, necessarily had to recognise the 'inevitability' of officers encountering traumatic events and pay close attention to practical consequences of the posited response, including, for example, the finite nature of police resources and command requirements for the adaptable deployment of officers.
His Honour also emphasised (at [69]-[71]) that it is erroneous, in determining the question of breach, to reason from the circumstance that a suggested step could have been taken to reduce the risk of injury to the result that there was a breach of duty in failing to take it. An associated point is that an omission to take a step is not negligent simply because it would eliminate the risk of harm. It is negligent because it is unreasonable not to take the step ([166]).
In that case, what needed to be identified, and what the officer in that case was unable to identify, was some different, specified system of work which, had it been implemented and maintained across the whole of the Police Force, would have been a reasonable response to the foreseeable risk of psychiatric injury.
Further, his Honour emphasised (at [117]-[131] and [168]-[169] [8] ) that when assessing the adequacy of the systems, consideration needed to be given to certain values, such as respect for individual autonomy, privacy and the protection of confidentiality and the likely efficacy of intervention by an 'employer' in the face of those values, without a 'paternalistic' approach being adopted. For example, a requirement directing an employee to attend counselling may infringe such values; and/or could be counter-productive.
Nevertheless, his Honour acknowledged that the significance of respecting an officer's autonomy or privacy is reduced where the Police Force knows that the officer has actually suffered psychological or psychiatric harm (at [177]) [9] .
Briggs was a case where a police officer failed because of his failure to identify a system of work which was not, but allegedly should have been, in place. By contrast, the Court of Appeal's decision Sills, upon which the plaintiff relied, did not challenge the adequacy of the system of work itself, or argue that it was negligent not to have had a better system of work. It was the failure of the Police Force to properly implement with its system of work, in relation to its dealings with the officer, who was known to suffer from PTSD, which gave rise to the breach. In that case, the breach of duty was partly established by the Police Force's failure to act upon recommendations of the PMO and a police psychologist, generally, relating to providing protective strategies and the appointment of a mentor to help and monitor the officer to deal with the stress. It was also partly established by its failure to respond to the knowledge that the officer had accumulated exposure to multiple incidents within a short period.
In assessing the adequacy of the implementation of the system of work to any individual officer, it is trite that attention needs to be given to the circumstances concerning the officer that the Police Force knew, or should have been known to it: Sills at [129].

[87]

Plaintiff's submissions

The plaintiff centrally contends that it was negligent for the Police Force not to direct her into the care of treatment providers until after the PTSD condition was entrenched. This, it was said, was contrary to what was 'mandated' by the Commissioner of Police's Circular, 'Major Incidents Policy' and the NSW Ombudsman's report of 1999, which introduced the Critical Incident Management Guidelines. I note, however, that the Circular referred to by the plaintiff was not in evidence.
In his oral submissions, Counsel for the plaintiff identified the following breaches of duty: 1. 'targeting the plaintiff' in 2002. This was alleged to cause her depression and anxiety; 2. Commander Shearer's interfering with the plaintiff's move from the Waratah Command to the Lake Macquarie Command; 3. The failure to pass on the plaintiff's history and depression at the switch of command from Waratah to Lake Macquarie; 4. not allowing the plaintiff to continue as a station manager at Morisset because of budgetary reasons when there was a holding out that the plaintiff could continue in that capacity; 5. not following up the plaintiff after her EAP counselling session in May 2007; 6. putting the plaintiff 'back on the truck' in late 2007, after the suicides of two officers who were close to the plaintiff after 'disclosures' had been made about her psychological symptoms. These 'disclosures' were identified as having occurred: 1. in June 2005, at the point of the plaintiff's exposure to the fatality (Mr Garland) in the motor vehicle accident; 2. on 15 October 2005, after the 'dead man Danny' incident; 3. the plaintiff's taking sick leave in March 2007 and 22 March 2007; 4. her expressed resistance to Commander Clarke's allusion to the prospect of her going back to general duties, after a Neighbourhood Watch meeting in May 2007. 5. not following up with the plaintiff after the EAP counselling session on 16 May 2007; 6. the suicides of officers the plaintiff's reaction to the psychologist briefing after the suicides of colleagues in 2007; and 7. notifications given by the plaintiff on 25 October 2017 and 5 February 2008.
These were much more specific, or focussed, complaints than the particulars of negligence identified (at paragraph 8) of the plaintiff's pleading. Counsel for the plaintiff submitted orally that these breaches were not only established through expert opinion evidence, but also by admissions by Commander Clarke about a non-compliance with protocol. As I understood him to submit, this was not a Briggs-type case where it was suggested that some different, and better system, should have been in place, but represented departure from established protocols. This was where admissions of Commander Clarke became relevant.
Counsel for the plaintiff elaborated his submissions on breach of duty, identified at [461], as follows. As to (a) Matthews conduct, it was said that the actions of Matthews and his superiors, to which the plaintiff was exposed, was to 'protect' Matthews. Reliance was placed upon the unchallenged witness statements of LS Robertson and Mr Cousins (Exhibits L & M). It was said that the plaintiff was "targeted" in the sense of herself being made subject of an inquiry simply because she was a 'whistleblower'. This fell below the Police Force's standard of care.
As to (b), the interference by Commander Shearer, the plaintiff identified this interference as comprising an unnecessary 'firearm shoot' before she was released to move to the Lake Macquarie command; and also acting upon a complaint received by Ms Fielding. These were things which, as I understood the plaintiff's Counsel to submit, meant that there was unnecessary delay in the plaintiff moving away from Waratah command and towards Lake Macquarie.
Pausing at this point, as I noted during the course or argument, the first two of these suggested breaches do not amount to negligence at all but rather amounted to intentional conduct. Counsel for the plaintiff did not disagree, but submitted that the allegations had been adequately pleaded and the point was that, whether the conduct was intentional or not, as the conduct was engaged in during the scope of the service, the State remained vicariously liable for it.
As to (c), the failure to pass on information to LAC Lake Macquarie, it was said that PMO documentation indicated that the plaintiff was incapacitated by anxiety and depression. Further, the command at Lake Macquarie knew, or should have known, that she was to return to work on antidepressant medication and with the diagnosis of anxiety and depression. It was said that she should have been reviewed prior to her return to front line duties.
As to (d), the plaintiff serving as station manager at Morisset, it was said that this role was taken off her and that she was 'put back on the truck'. This was done for budgetary reasons, including the demands for GSO support elsewhere.
This, it was said, (f)(i) and (ii)) exposed the plaintiff to the traumatic incidents in June 2005 (the MVA fatality) and October 2005 ('dead man Danny'). On both occasions, it was said, the plaintiff conducted herself in a way which placed the Police Force on notice of psychological symptoms which should have, but did not, cause Command to exercise care for her welfare. Initially, the supervisor was required to notify HR and thereafter, it was argued, HR would have engaged the range of services which were available for officers. Instead, it was suggested, the plaintiff was directed by her supervisor to undertake duties which, so it appeared to be suggested, contributed to the onset of PTSD. Reliance here was placed upon what was said to be Commander Clarke's evidence that if (a) he had been Commander at the time (he only became LAC Lake Macquarie in December 2005); and (b) he had known of the plaintiff's history of anxiety and depression, he would not have wanted the plaintiff's supervisors to act in the way that they did in relation to both of these incidents.
Another part of the plaintiff's case, arising from these two incidents in 2005, is that both could be characterised as 'critical incident' cases of the kind identified in the NSW Ombudsman's 1999 report, which should have, but did not, necessitate 'mandatory' debriefing session.
As to sick leave (f)(iii) taken in May and then June 2007, reliance was placed upon the plaintiff's disclosure to Commander that she was on sick leave on the basis of situational stress, and had told both Commander Clarke and the Duty Officer that this was due to work. It was said that this should have triggered a 'welfare' response and it was suggested that Commander Clarke admitted that Command's response fell below acceptable standards.
Then, it was said the absence of any welfare response to the suicides of officers in June and September 2007 fell below standard. The provision of a psychologist at Toronto, encouragement to use EAP and organisation of a single Black Dog Institute presentation was not enough. Criticism was made of Sgt Boyd for insisting that she resume her shift one afternoon after seeing the plaintiff in tears; in the aftermath to her session with the psychologist.
Further, it was suggested that the plaintiff's difficulties with management, through her advocacy of OH&S issues in 2007, manifested her emotional state. This had to be seen also in the context of notifications to Command (in October 2007).
It was argued that putting to the plaintiff the prospect of a return to general duties was inappropriate. Reliance was placed here upon what Commander Clarke admitted and what the experts accepted.
The plaintiff submitted that the presence of overt symptoms, whether depression or stress related disorders, was the trigger for the response of a reasonable Police Force knowing what it did about the plaintiff. That required the Police Force to have directed the plaintiff to modified or no operational duties, and come under therapeutic care from 2005.

[88]

The defendant's submissions

The defendant characterised the plaintiff's claim as being that the nature and conditions of the plaintiff's service exposed her to repeated trauma with the result that she developed PTSD and comorbid depression. It also characterised the plaintiff's case, on breach, as being that the welfare system provided, or which was available to, the plaintiff was ineffective to prevent injury. But the question was whether the Police Force took reasonable steps to prevent or at least minimise the risk of injury in light of the nature of the service.
The defendant argued that there were reasonable systems in place to assist the plaintiff to deal with the exposure. The plaintiff knew and, at least in one instance (in 2007), attended an EAP. She attended her general practitioner for psychiatric assistance from as early as 1998 (Dr Spruce) or 2001 (Dr Wright).
The defendant identified the plaintiff's case as raising the point that because it was on notice of her attendance upon psychologists in 2001 or (I would add) because if knew of a prior diagnosis in August 2002 of anxiety and depression, the Police Force was on notice that she was at real risk of sustaining psychiatric injury if she was exposed to trauma after that date. But to even accept that did not amount to articulation as to what steps the plaintiff's supervisors or commander should have taken in response to any of the many traumatic events to which she was exposed. The plaintiff needed to establish the steps that could have been taken by the Police Force which would have minimised or eliminated the risk of injury in the circumstances.
The defendant submitted, with reference to what was said in Briggs, that to the extent that it was suggested that the plaintiff be required to undertake counselling, or debriefing, following a traumatic incident, the argument is problematic. It could not be the case that the Police Force was subject to an ongoing and continuous enquiry of an officer regarding her mental state.
As I understood him, Counsel for the defendant submitted that the early indications of anxiety or depression in 2002 were not a harbinger of her developing PTSD. Dr Spruce recorded in 1998 that the plaintiff was suffering reactive depression because of a relationship breakdown. Dr Wright recorded in 2001 that she had a major depressive episode from work-related stressors, but also noted that this episode had resolved as a result of her antidepressant treatment and time away from work. Dr Wright wrote on 29 January 2002 that she was fit to resume work in March 2002.
By reference to some medical reports in 2008, they did not indicate that the plaintiff was at risk of developing PTSD. At its highest, the medical reports indicated she might have an Adjustment disorder because of her workplace conflict. That she had some psychological symptoms did not mean that she should not be exposed to trauma. (The plaintiff's Counsel in argument eschewed the suggestion that it was the plaintiff's case that the Police Force negligently required her to perform front line duties). No medical practitioner, within or outside the service, suggested she be removed from general duties. There never was any medical opinion to the effect that she could never return to work in a particular place or in a particular circumstance.
Further, the plaintiff did not 'disclose' symptoms to anyone within the service which served to put the Police Force on notice that they were indicative of PTSD:

The plaintiff could not state when her symptoms of PTSD (as she understood them to be) commenced;
The medical evidence did not indicate post-traumatic symptoms during the period of her service;
SC Richardson's evidence indicated that, to a lay observer/colleague, she was capable of performing general duties;
The circumstance that she did not resume traumatic work after sustaining her back injury (ANZAC Day 2006) indicates that any failure to monitor her at that time was irrelevant.

As to the plaintiff's complaint about her treatment after her back injury after 2006, when she ceased general duties, until October 2007, when he decided to transfer her to Toronto, Commander Clarke acted reasonably. He was informed by supervisors that she was not performing her duties appropriately. She was, in this period, working restricted hours, incapacitated by her back and also, to some (lesser) degree, a broken finger; and also a driving restriction. Commander Clarke arranged for her to be medically examined on 15 October 2017 (by Dr Hutabarat); which resulted in her remaining on restricted duties.
As to the bullying/harassment allegation, although the plaintiff made complaints about Matthews and, indeed, Shearer, such complaints did not, expressly or impliedly, suggest that her attempts to perform the duties required of her were putting, or put, her (mental) health at risk [10] . The Police Force had no reason to suspect risk to the plaintiff's health.
Further, regard had to be had to the circumstance that in any organisation, (it might be added) especially a hierarchical one, there is a risk that an employee might be harassed or bullied by someone else. Nevertheless, a complainant must show that the situation s/he is subjected to requires intervention. The risk of psychiatric harm through bullying or harassment, which calls for a response, must be more than far-fetched. It was incumbent upon the plaintiff to communicate that she was experiencing difficulties in the course of performing her duties and that such difficulties were impacting upon her health.
Here, it was said, the evidence indicated that the plaintiff was difficult to manage. It was submitted that her evidence was unreliable in many respects. It was not put to Mrs Shearer, when she gave evidence, that she had bullied and harassed the plaintiff. The contemporaneous documentary evidence indicated that, not unreasonably, Commander Shearer arranged for her to be assessed by the PMO before permitting her to return to general duties.

[89]

Intentional conduct causing psychological injury: 1999 - March 2003

Taking the plaintiff's submitted breaches ([461] above) in order, I will deal with the first two breaches (a) and (b) together. Counsel for the plaintiff accepted that although bullying and targeting and other like concepts were rolled up in the plaintiff's pleading about negligence, they were species of intentional conduct; and not negligent conduct.
That being so, there are real difficulties for the plaintiff attending both allegations.
The first is the principle of law attending this charge. No breach of any statutory provision was identified. In the absence of negligence, it seems to me, although the principle was not articulated by the plaintiff's Counsel as such, that she was relying upon the principle derived from Wilkinson v Downton [1897] 2 QB 57 where liability can sound if a person engages in conduct calculated to cause harm to another, including mental distress [11] . When I say 'calculated', it is sufficient to establish reckless indifference to that result: [12] that is where the defendant knew or ought to have known that the conduct is likely to have alarmed the victim in some way. Nevertheless, the intention must be to cause harm in a normal person, unless the defendant is aware of the victim's peculiar susceptibility to distress. Further, the conduct must be accompanied by substantial harm: mere anguish and fright would not do [13] .
The second is the higher standard of proof required to prove the conduct than would be available in an action in negligence (s 140(2)(a) and (c) of the Evidence Act 1995 (NSW). In the absence of contemporaneous statements or other indications as to what was operating in the minds of the personnel concerned, the elements of intention is not easy to prove. The task is not made easier because some of these personnel were not called. The rule in Jones v Dunkel (1959) 101 CLR 298 cannot be used to fill obvious gaps in the plaintiff's case (101 CLR 298 at 312, 321).
The third concerns the facts. I find that the Matthews episode did not involve any intended 'targeting' of the plaintiff. Contrary to the plaintiff's (unsourced) belief and her Counsel's submission, I am not satisfied that a complaint ever was made against her, which was the primary fact relied upon to sustain the conclusion that she was targeted. Detective Inspector Hore wrote in February 2001 that Matthews complained about officers, but did not complain about the plaintiff [14] . There was, indeed, precious little articulation by Counsel for the plaintiff as to what such 'targeting' consisted of.
In my view, the position at Wallsend in 2001-2 was that there were factional or 'camp' differences, in which Matthews was a prominent leader in one camp and Robertson was a leader of another. Both seem to have been protagonists. On the evidence before the Court, Matthews was regarded as having engaged in serious misconduct. Complaint was made. It appears that Sgt Matthews made a counter-complaint. An investigation was inevitable. It seems to me that it was also inevitable that the plaintiff would be interviewed during the course of that investigation. She was upset and appears to have taken umbrage at the tone and content of the interview (though the contents of it were not before the Court). She was even more upset with the result, which she, and Sgt Robertson believed amounted to maladministration by superiors, including Superintendent Trott. It appears that she thought that nothing of note came from her complaint to the Equity and Diversity cell in Sydney. She was dissatisfied with the results of these processes. Indeed, even worse, she thought they were the product of insidious nepotism or even corruption.
Sgt Robertson, in his witness statement (Exhibit L) reported receiving a call from the plaintiff about Duty Officer Jefferson pressuring her not to make a complaint about Matthews herself, as would involve Robertson being dragged into an investigation and charged with untruthfulness for what the latter had reported to Superintendent Trott. Though not objected to, that evidence was hearsay and needs to be treated with some scepticism.
But assuming (which may be large assumption) that all of these facts were true, and all of her perceptions were reasonably based, I am not satisfied, to the requisite standard of proof (on the balance of probabilities), that any conduct of the officers in question in connection with that investigation was intended to cause harm to the plaintiff, in the sense that the conduct was likely to instil substantial psychological injury in a reasonable serving officer or that those involved in the conduct knew (at the time) that the plaintiff was susceptible to psychological injury.
As to the plaintiff's complaints against Commander Shearer, I accept that there was ongoing conflict between the plaintiff and her commander. But the facts which Counsel for the plaintiff identified as constituting harassment or bullying by Commander Shearer - acting upon a complaint by Ms Fielding or requiring the plaintiff to undergo an unnecessary 'firearm shoot' and demanding a fit and functional replacement for the plaintiff - were facts all said to the result of a delay her move to Lake Macquarie Command, do not make out this action. In my opinion, all of these actions of Commander Shearer, can be viewed, objectively as the actions taken by a Commander in the exercise of her powers of command. It is absurd to think that a commander would not initiate some kind of inquiry upon receiving a complaint from a person under her command that another person under command has wielded a knife in close proximity. Conduct of that kind as alleged would reasonably give rise to a concern in a commander about the mental fitness of the person alleged to have wielded the knife. And a concern about mental fitness of an officer would also give rise to a consequential concern about whether it was appropriate for the person to have access to a firearm. I am not persuaded that it has been established that Commander Shearer has acted in any way other than in a good faith exercise of her powers. At any rate, I am not persuaded that any conduct by Commander Shearer was engaged in with the intent of causing mental harm to the plaintiff.
The plaintiff has not made out these complaints on the facts. But a fourth problem is the plaintiff's omission to complain, within the Police Force, of the impact of these events on her mental health. I agree with the defendant's submission in this regard.
This relieves me of considering the far from straightforward issues associated with the question whether the defendant could be vicariously liable for intentional conduct of its agents or officers in the course of their 'employment' [15] .

[93]

The Garland MVA fatality

In relation to the plaintiff's involvement in the attempted rescue of Mr Garland in the 2005 motor vehicle accident, it is arguable whether the plaintiff's assistance would satisfy the concept of 'prolonged' rescue work; but I do not consider that the Police Force would treat the concept in an unduly narrow version, so I accept that the plaintiff's conduct would fall within the definition.
That being so, in my opinion, and upon the reasonable assumption that I make, that the plaintiff's involvement was described in detail to the station manager, Sgt Sharman, a critical incident debriefing should have occurred. I accept SC Richardson's evidence that it did not and there was no explanation as to why not. Critical incident debriefings serve the function of assisting with the discharge of one aspect of the duty I referred to earlier (at [448(b)]), of helping officers to receive the support and (if appropriate) treatment that they may need to deal with their response.
I consider that this omission to comply with an extant practice amounted to a breach of duty.
The Ombudsman's report noted that one of the issues associated with critical incident teams is who is responsible for activating them. Although there was no evidence of specific practice at Morisset station, I can (just barely) make out from the copy of the standard operating procedure in evidence (Exhibit X) that it was either the Duty Officer or Team Leader whose responsibility it was for activating the team, though the precise procedural steps were largely obscured in the copy of the relevant document tendered to the Court.
In making such finding, I do not consider it necessary to address the other part of the plaintiff's complaint about being required to deliver death notices to family members of the deceased. Nevertheless, I consider this was an incidental, albeit distressing, aspect of the plaintiff's duties in responding to the call of a motor accident. Although the plaintiff indicated that she did not wish to do this, Sgt Sharman said words to the effect that he acknowledged that these were "not nice to do, but it was our job to do it anyway". Without more, I do not treat that indication by the plaintiff as an obvious signal to Sgt Sharman that there was a substantial risk that she might suffer psychological harm from performing these duties. I note LS Richardson (as he was at the time) said that he observed the plaintiff to be crying, but this was only after Sgt Sharman asked the plaintiff to attend to the duties and there was no evidence to indicate that he saw her crying. Indeed, he said that the crying occurred when they were back in the car. At its highest, therefore, in my view, Sgt Sharman would have viewed the plaintiff as evincing a not unnatural reluctance to perform this necessarily unpleasant, but incidental aspect of the work of a frontline officer, but there were no tangible signs of vehement opposition from her (ie bordering on insubordination) that might reasonably have triggered in his mind such a concern as to lead to a question about her fitness to undertake this task.
It makes no difference to this conclusion even if it is posited that Sgt Sharman should have known that in August 2002, the plaintiff was diagnosed with anxiety and depression and/or was treated with an antidepressant, and/or should have known that the plaintiff should have been, but was not reviewed in early 2003. That was a considerable period of time before June 2005 and, as indicated, the indications were that in 2004 and through the early part of June 2005, she was capable of performing frontline duties well.
There was no breach of duty in Sgt Sharman directing the plaintiff to deliver the death notices.

[95]

Not allowing the plaintiff to continue as station manager because of budgetary reasons - May 2007

The plaintiff complains that her promised role as a station manager was 'taken' off her and she was directed back on to the truck because of budgetary reasons, and not because of proper consideration for her welfare, needs to be unpacked. Though the plaintiff's submissions did not make this clear, I infer that the conduct complained of occurred in May 2007.
There are multiple problems with this argument on breach. First the factual premises are doubtful. When Commander Clarke was asked about budgetary considerations, it was only in connection with the matter of whether GSO support would be supplied to Morriset station when the plaintiff was acting as station manager. This was discussed in May 2007. It was not the reason that Commander Clarke gave for her transfer to Toronto in October 2007.
Secondly, whatever undertakings or promises are held out to officers in the New South Wales Police Force cannot be taken to be irrevocable. The requirements upon commanders and supervisors cannot reasonably be fettered. It so happens that, on one view, an undertaking of sorts may have been made to the plaintiff that she was likely to continue as a station manager in late 2006, or in early January 2007. But serving Police Force officers, no differently to employees in any sort of organisational hierarchy, cannot dictate to their supervisors or managers where they work; even on the basis of prior undertakings.
Thirdly, I accept Commander Clarke's evidence that for operational purposes, it was appropriate for the plaintiff to be transferred to Toronto and, that he honestly believed that, in light of the information he had about the plaintiff at the time, this would yield the incidental benefit of putting the plaintiff under closer supervision and monitoring than if she remained at Morisset. It was not an illegitimate let alone irrelevant consideration for Commander Clarke to take into account 'budgetary reasons' for allocating personnel to certain places even if that was the reason, or a reason, for the transfer. At any rate, the expression 'budgetary reasons' was ill-defined. As I understood his evidence, Commander Clarke only had so many officers under his command, and needed to, and did, assess where they should be allocated; according to a whole host of reasons which would not be easy to recite. He mentioned, incidentally, that if a telephone call went into Morriset but was unanswered, it would go automatically, to Toronto Station; which was larger. The Court is not in a position to, and it is therefore not appropriate, to second-guess an operational decision of that kind.
I do not accept that this alleged breach of duty, in this regard, is established. Nevertheless, I will now turn to a separate but related suggested breach, also arising out of the plaintiff's dealings with Commander Clarke, in May 2007.

[99]

May 2007

I accept the plaintiff's evidence of her expressed opposition to Commander Clarke informing her of his desire for her to return to general duties in May 2007. She explained that she had had enough of psychological injuries sustained through service. As indicated, in the chronological narrative, her evidence was not contested. I also accept the plaintiff's evidence that Commander Clarke was aware of her perspective that she had been promised (by or on 4 January 2007) the on-going position of being a station manager. It matters not, for present purposes, whether it was reasonable for her to think that the promise was unconditional or irrevocable. The issue, for present purposes, is the foreseeable effect on her state of mind in being informed that, contrary to the expectation forged by the earlier promise, she was now being informed of Command's desire to return her to general duties.
The plaintiff was on sick leave, for situational stress, had been on sick leave in March 2007 for situational stress.
I accept the plaintiff's evidence she had also rung Inspector Hawkins about her difficulties at about the same time. When they gave evidence concurrently, Professor McFarlane, Dr Murray and also Mr Mutton agreed that by May 2007, she was in psychological 'need.'
In my opinion, once a subordinate non-commissioned officer informs her Commanding officer that she has "had enough" of psychological injuries and has manifested resistance to returning general duties, Commander Clarke was on notice that holding out the prospect of her performing general duties to her was likely to give rise to the high risk in her of causing psychological injury. The plaintiff's highly sensitive reaction -bordering on insubordination - was, objectively, a clear indication that she was not mentally well, which required further assessment.
The reasonable response of a commander in Commander Clarke's position, to the circumstances that he knew or (if there was a functioning system in place for the dissemination of relevant information to Command) should have known, was to take steps to reasonably satisfy himself that the plaintiff was mentally fit to return to operational duties. This was the reasonable response that should have been taken both in response to the plaintiff's reaction, in May 2007, to the prospect of returning to frontline duties, and continued up to the execution of the decision, from mid-October 2007.
Only in this way could the Police Force discharge one incident of the duty of care owed to the plaintiff, which was identified in [448(a)] above. This state of 'reasonable' satisfaction required him to arrange for a full diagnostic assessment of her within the Police Medical Office. The Commander had the power to do so. In this regard, by May 2007, it was not enough, in my view, for there to be a generalised assessment of mental fitness, in the sense of a capacity to serve on the frontline. By this point, Command had or should have had a corpus of records indicating concerns about the plaintiff's history suggestive of mental problems. It needed to get to the bottom of the underlying cause(s). As was recommended in the NSW Ombudsman's Report, commanders bore some responsibility relating to the power to direct the assessment of an officer's psychological well-being, and, even as at 1999, it was suggested that it should not be confined to instances of responding to workers compensation claims and medical discharge applications. I do not infer that the circumstances in which such directed referral was any more restrictive in 2007 than it was in 1999. Commander Shearer's referral of the plaintiff to the PMO in 2002 indicated that it was not. Indeed, his position was not dissimilar to that of Commander Shearer when the latter referred the plaintiff to the PMO in May 2002, albeit that the reasons for inquiring into the plaintiff's mental health were different.
In my opinion, the concern of respecting privacy and autonomy of the kind emphasised by Leeming JA in Briggs was not compelling at this time, given clear signs of the plaintiff having mental issues and her history, which was known (or should have been known).
I would add that the risk was not only personal to the plaintiff. I accept the view of Mr Mutton that, acting reasonably, the commander had to think of the broader implications of the risk of an officer expressing psychological concerns being forced to general duties carrying the inherent risk of exposure to trauma: he had to consider the Police Force's duty of care 'to the community' (T 481.39) and, I would add, to her colleagues serving with her in the course of performing general duties. Commander Clarke could only discharge these complementary responsibilities by having visibility of the results of the assessment.
Pending such assessment being performed, the plaintiff should have been advised, from May and up to October 2007, that no transfer to that position would occur unless and until she received full assessment. Once it fell within the purview of the PMO, in my opinion there should have been at least a diagnostic assessment by an internal psychologist or, preferably, the plaintiff should have been encouraged to obtain a referral from her general practitioner to a psychiatrist, for such assessment. My view is not dissimilar to that of Dr Murray [381] although I differ from him on the timing. Dr Metelerkamp also endorsed the reaction of referral to the PMO ([384]). As to which of these routes should have been taken, the plaintiff should have been consulted about her opportunity to have an external specialist perform such assessment; rather than simply present an internal psychologist within the Police Force itself. This is not to cast any aspersion upon the competence or care of the internal psychologist, but reflects the circumstance that the plaintiff's previous history with the PMO was, from her perspective, unsatisfactory; given the inputs of colleagues and supervisors which, again from her point of view, were unbalanced and fed in her a mistrust of the process. I do not understand that these possibilities were not available in 2007, having read Mr Mutton's report.
Subject to my consideration of the significance of the plaintiff undergoing an EAP counselling session on 16 May, Commander Clarke's omissions to do these things were, in my opinion, in prima facie breach of the duty of care to the plaintiff. As will be seen, they set in train a sequence of events which exacerbated the plaintiff's psychological condition throughout 2007 and beyond, until her ultimate medical discharge.

[100]

The May 2007 EAP counselling session

This session occurred on 16 May. The note of the session (Exhibit 7, Tab E) not only indicated the plaintiff' acute anxiety, stress and underlying depression, but indicated a 'requested follow up face to face counselling'. There is no evidence to indicate that a follow up occurred and, if it did not, why it did not. As I have noted, the plaintiff gave evidence, but was not asked about the absence of follow up and was not cross-examined, on the issue. I do not speculate as to the matter.
Counsel for the defendant submits that the Court should infer that the plaintiff only attended at the suggestion of Commander Clarke. The plaintiff denied the proposition and Commander Clarke did not give evidence about it (either in Court or in his written statement, being Exhibit 6, p 204). I am unable to infer that she attended the EAP counsellor in May 2007 because of any recommendation by Commander Clarke.
But even if she did, in my opinion, any such recommendation by Commander Clarke, even if well-intentioned, was not an adequate response to the risk of the plaintiff developing psychological harm after being informed of the prospect of her returning 'to the truck'. This is because of the systemic weaknesses or flaws in EAP counselling sessions. Mr Mutton explained that the EAP network consists of external registered psychologists, so it is not clear what responsibility or in what circumstances, information can be passed on to command. The disadvantage of the procedure was alluded to by the NSW Ombudsman in her 1999 report. Command had no visibility of the result of it.
As I noted above (at [407]-[408]) in response to being shown the note of the EAP consultation of 16 May, Dr Vickery could not assent to the proposition that the plaintiff needed her welfare managed because it was not privy to what the plaintiff told the counsellor. This evidence proves the point. My impression of the EAP service was that it was, and is, most useful in terms of dealing with short term issues, such as responding to critical incidents, where personnel can respond quickly to address concerns. The plaintiff's problem, in May 2007 and thereafter, viewed prospectively (ie with the benefit of information about the plaintiff that was, or should have been, available), should have been regarded as more deep-seated. Any recommendation, or reference, by Commander Clarke that the plaintiff to the EAP could not assist Commander Clarke to understand what was the plaintiff's underlying concern. A mere recommendation to the EAP service was not the exercise of responsibility by Command to identify a risk of harm, but, in effect, the abdication of responsibility. If it was the case that Commander Clarke was, in effect, telling the plaintiff to go and help herself, he had no means of knowing whether anything that the plaintiff did (or did not do) was effective.
In the circumstances that occurred, the note of the EAP counselling session (and it is unknown how it was obtained) was, in my view, material to the decision-making process as to whether the plaintiff should be transferred into a position whereby she would be performing general duties. The materiality of the evidence was in illuminating what her condition actually was and how it may have been exacerbated by subsequent events throughout 2007. That goes to the causation inquiry considered below.

[101]

The suicides - June - September 2007

The late sergeants Muir and Grey were friends of the plaintiff.
For a person in her position, the risk that the plaintiff might suffer psychological harm, or alternatively, aggravation of a pre-existing psychological injury was not only foreseeable but high, upon hearing the news of the suicide of a fellow officer and friend. She was, or should have been, identified as an officer at risk.
Some effort was made by Commander Clarke, by arranging for the psychologist Leemburgen to be accessible on a weekly basis. This occurred in October 2007, and the plaintiff availed herself of this particular facility. Further, the Commander arranged a Black Dog Institute presentation, which occurred on 31 October 2007, at which, apparently, psychologists were present.
Were these responses by command, individually, or collectively, a reasonable response to the risk that the plaintiff who was, or who should have been, identified as being at risk of psychological harm? In my view, on balance, they were not. The evidence from SC Richardson indicated that such psychological assistance as was rendered from October 2007 appeared to be generic, without being tailored to the personal needs or circumstances of officers. SC Richardson alluded to officers lining up in a queue or queues. The Police Force did not adduce evidence of what topic, or topics, were covered in any psychological consultation in which the plaintiff participated in or about 5 October 2007 to dispel such inference, despite tendering the plaintiff's psychological file (Exhibit 7). There was no reference, in particular, to any follow up session to monitor the plaintiff's psychological progress. It is also unclear what, if any, input the psychologist, Mr Leemburgen, supplied to command about the plaintiff's fitness to return to general duties. As it happens, the plaintiff was observed to be in significant distress after her psychological consultation on 5 October 2007. One inference that might be drawn was that this might have signified that the consultation was cathartic for her. The inference which I draw is that the plaintiff left the consultation with a psychologist whom she had not met before and who, apparently, had a queue of other officers waiting to attend him, and that the experience was unsatisfactory for the plaintiff.
The Black Dog Institute presentation may have been helpful to a degree, to officers generally, but again, was pitched at a generic level, and not tailored to the personal circumstances of officers, like the plaintiff, who was, or who should have been identified as being at risk of suffering psychological harm. I accept the plaintiff's evidence that she did not regard the session as beneficial to her.
I am unable to find that command could reasonably have formed the view that the plaintiff was fit to return to general duties after the two suicides, as a result of these initiatives.
In my view, it is unnecessary to characterise the omission to conduct a full, independent assessment of the plaintiff's mental health after the suicides in June and September 2007 as distinct breaches of the duty, or merely as events which aggravated the plaintiff's psychological condition flowing from the existing breach of duty from May 2007. But I think the better view is the latter. There was little evidence of objective signs in the plaintiff which, specifically, alerted the plaintiff's colleagues or supervisors to distress after the suicides. In retrospect, her strident advocacy of OH&S issues might, as the plaintiff's experts have done, been interpreted as such a sign, but only if the persons observing the plaintiff's behaviour been qualified to construe her conduct in that way.

[102]

Explaining the decision to send the plaintiff to Toronto - October 2007

I touched upon the plaintiff's criticism of the decision to transfer the plaintiff to Toronto for 'budgetary' reasons earlier. But the plaintiff attacked the decision to send her to Toronto to do general duties - to be 'back on the truck' - on the merits. The plaintiff emphasised circumstances stretching back to the two traumatic events in 2005, the suicides of colleagues in 2007, her taking sick leave in March and May 2007 and an incident notification in October 2007.
As I noted in my formulation of an incident of the duty of care (at [448(c), above), part of it was that once an officer was, or should have been, identified as being particularly susceptible to suffering psychological harm, and especially once an officer had returned from sick leave, steps should be taken to identify hazards in the officer's environment, and the risks of further injury.
I prefer the evidence of the plaintiff over Commander Clarke as to the stated reason for the transfer to Toronto, or, at least the way in which it would have been reasonably understood by the plaintiff. It was not, as Commander Clarke portrayed it, simply to allow the plaintiff to be monitored or supervised by other personnel performing station duties in a busier station. In his email to the plaintiff on 22 October 2007, he had used the word 'operational' duties and accepted that this could be interpreted as a reference to performing "full duties". There was no qualification of condition expressed. He said, in re-examination, that he believed that she had the capacity to return to full duties. I find that the plaintiff understood, and reasonably so, that she was to be returned to operational duties. This was so despite her belief, encouraged at least at an earlier point (late 2006 - early 2007), that she could continue on performing restricted duties as a station manager. This was what, I consider, the plaintiff dreaded after the indication supplied to her by Commander Clarke back in May.
This decision to move the plaintiff into a position where she was potentially exposed to traumatic incidents associated with being a frontline officer was undertaken without Commander Clarke having reasonably satisfied himself about the plaintiff's capacity to deal with the pronounced risks of exposure to traumatic events of general duties officers and the likelihood of such risks causing, or exacerbating, psychological injury in the plaintiff. As I have said, the question of her psychological fitness to return to general duties should have been assessed in May 2007. There was nothing in the evidence to suggest that anything that had happened thereafter through to mid-October 2007 would have signalled to Command that such precaution was no longer appropriate.
To the contrary, as I have indicated, subsequent events through to October 2007 made the precaution more imperative. In particular, by early October 2007, Commander Clarke received Sgt Boyd's report. Commander Clarke acknowledged the plaintiff's interactions with Sgt Boyd required 'intervention' but he still took no step to assure himself of her mental fitness to proceed to return to frontline duties.
Mr Mutton and Dr Vickery did not believe that the plaintiff's supervisors or commanders would send her back to general duties if there were 'serious concerns' about her. No reasonable basis existed for them to make such assumption in the absence of a proper assessment in the circumstances I have described.
Although the matter is to be viewed prospectively, it is notable that, only a few days after the decision was conveyed, on 25 October 2007, the plaintiff reported psychological injury in an Accident/Incident Notification Form. From October 2007, looking, as I must, prospectively, how was the plaintiff likely to cope with threats of that kind to herself, or to colleagues in whose company such threats were faced? On the evidence before me, I consider there was a high risk that she might suffer psychological harm upon receiving information that contrary to her expectations, partly fostered by the Police Force, she faced the prospect of a return to frontline duties.
To reiterate, the reasonable response to that high risk was to convey to the plaintiff that no decision would be taken to transfer her to general duties until Commander Clarke had reasonably satisfied himself that she was mentally fit to perform that role. What I said about the situation in May 2007, had not materially changed (for the better) by mid-October 2007, a reasonable precaution in response to the risk of exacerbation of psychological injury was to refer the plaintiff to the service identified by Mr Mutton, ie to the police medical officer where the officer could be offered the services of an external provider. The circumstance that this did not occur leads me to conclude that the Police Force was in breach of its duty of care to her as a result of this omission.
It was not an unduly burdensome response to unilaterally determine the plaintiff's mental capacity to perform duties of that kind, set against that risk. What the plaintiff needed, in my view, after the first suicide, if not also the second suicide, was the sort of full-blown psychological assessment of the kind exhibited in her opening up to Dr Spruce in May 2008, incorporating the taking of a personal history, a review of documents on her medical or psychological profile (such as they were or should have been) and the considered application of such diagnostic criteria, such as the DSM-V criteria, to her condition.
I find that by failing to conduct an assessment of the plaintiff's fitness to return as a general duties officer prior to or at October 2007, there was no proper basis, consistent with its obligation of care, for the decision to return the plaintiff to general duties. This was so, irrespective of the relevant consideration that the plaintiff might have received closer supervision at Toronto decision. The decision to return her to general duties, without the Commander satisfying himself as to her mental or psychological capacity to perform front line duties, was in breach of the Police Force's duty of care.

[104]

Plaintiff's evidence

In his first report, Professor McFarlane opined that if appropriate assessment had been made as of April 2006, when she sustained her back injury, and if she had been supplied with appropriate treatment - including assisting her to secure an appropriate permanent position on restricted duties, the plaintiff would not have subsequently become permanently disabled.
In his second report, Professor McFarlane opined that if the strategies he believed should have been employed in the period from 2005 to 2008, she could have continued to have worked in a non-operational (that is 'not in the frontline') role in the Police Force. If she had been provided with effective treatment, the severity and chronicity of her condition would not have increased. Further, he opined that if the plaintiff had decided to leave the Police Force, she would have had a residual capacity for employment in a range of roles; although he acknowledged that he was not an occupational therapist.
Dr Murray said in his first report that if the intervention he prescribed in 2005 been followed, this was likely to have had a significant and beneficial impact on prognosis, in terms of her disorder and of her employability. He elaborated that psychiatric decline can accelerate exponentially. The last two years of her service with the Police Force went rapidly from bad to worse. He considered that under the pressure of PTSD and depression, in those years, she was 'destroying herself and her life'. Appropriate intervention at that stage would have moderated or avoided the workplace conflict and emotional damage that ended up occurring and meaningfully improved her prognosis.
In his report of 7 December 2020 (being the part which was admitted) Dr Murray opined that even by October 1999, she had a chance of developing PTSD, but her prognosis would have been less severe and, because of her anger, less disabling. With a 'supportive' employer, he said he thought that the plaintiff would still have been employed.
In the psychologist, Dr Metelerkamp's opinion, had the steps been taken which the plaintiff says should have been taken, her 'trajectory' would have improved.

[113]

Findings

In light of the consensus amongst the experts, there is no serious doubt, and I find, that the plaintiff's exposure to the series of traumatic events in the course of her duties as a general duties officer contributed to her suffering from PTSD and a Major Depressive Disorder. However, conduct which contributes to psychological injury, or the risk of injury, although necessary, is not sufficient proof of causation. The plaintiff needs to establish the link between the negligent conduct and the psychological injury.
To reiterate, and in paraphrase, the breaches of duty against the Police Force that I have identified are: 1. omitting to review the plaintiff's capacity in April 2003; 2. omitting to conduct debriefings after the plaintiff's exposure to the traumatic incidents in June and October 2005, respectively; 3. Commander Clarke failing to satisfy himself, through direction that the plaintiff undertake a thorough assessment, that the plaintiff was mentally fit to return to operational duties from May 2007 until the decision was made in October 2007;
In all instances, factual causation or what, under the common law is regarded as the 'but for' test, needs to be satisfied. This directs attention to counterfactuals. A complicating feature, as will be shown below, is where the counterfactuals require consideration not just of what the plaintiff herself would have done, but what third parties would have done.
A further complication arises where, as here, the plaintiff argues a case (either primarily, or in the alternative) that the loss or damage is the lost opportunity to obtain a better outcome than that which occurred. The plaintiff's case was that had she been properly assessed, between 2005 and 2007, she would have been identified as not being suitable to perform the duties of a general officer and, further, had the decision been taken to ensure that she did not perform such duties, the severity or chronicity of her condition would not have been as bad as it eventually became.
This brings into question the status, in law, of the principle that the loss of an opportunity to obtain a better outcome, in the context of an action for damages for personal injury, is available. The defendant argues that the principle does not exist and has been foreclosed by the High Court's decision in Tabet v Gett (2010) 240 CLR 537 The plaintiff argues that Tabet v Gett does not extinguish the principle where the opportunity, or chance, is greater than 50%, that is, the opportunity of a more beneficial outcome is more probable than not.
In Tabet, symptoms of a brain tumour in the plaintiff, when only 6 years of age, were undiagnosed, which meant that medication (steroids) could not be prescribed, or other treatment (the insertion of an intracranial drain) administered. The trial judge held that the plaintiff could not establish that brain damage could have been avoided absent negligence. But the trial judge determined that, on the balance of probabilities, the plaintiff lost a valuable opportunity of a more favourable outcome. The opportunity was valued at 40% of the total damages that were recoverable in the event that she was able to prove that the brain damage would have avoided. The decision was overturned in the Court of Appeal and the appeal was dismissed by the High Court.
In the High Court, the leading judgment was that of Kiefel J (as her Honour then was), with whom Hayne and Bell JJ, and Crennan J concurred. Gummow ACJ delivered a judgment also concurring in the result, but for his Honour's own reasons. Heydon J did not decide the question of principle. Kiefel J determined that in common law actions for damages for personal injury, it is not appropriate to dispense with the requirement for proof of causation and substitute a test that breach has occurred before going on to quantify the value that a better outcome could have been obtained than that which has occurred.
Although it is true that Gummow ACJ (at [68]-[69]), with whom Hayne and Bell JJ agreed (at [68]-[69] decided the case on the basis that the plaintiff could establish (at trial) no more than a 40% chance of a better outcome, his Honour's latter reasons (at [46]-[62]) align with Kiefel J's view as a matter of principle, that in actions for damages for personal injury, where it cannot be proved that negligence caused the personal injury, the notion that recovery can be based upon loss of a chance to obtain a better outcome cannot substitute as the test for causation.
My researches have disclosed at least one instance, in the medical negligence context, where loss of a better outcome has been sustained where the chance has been assessed at greater than 50%. In Coote v Kelly [2013] NSWCA 357 a patient sued his medical practitioner for failure to diagnose a melanoma in his foot, before it had metastasised. The case ran by the executrix was that but for the negligence early diagnosis would have increased the chances of a better outcome. In the Court of Appeal, Leeming JA (with whom Basten and Hoeben JJA agreed) held that Tabet v Gett did not stand in the way of the finding of causation. With reference to statistics showing that if it had been diagnosed sooner, the melanoma would not have grown to the extent that it eventually did, and had metastasised, and the survival rates would have been higher. In other words, it was not a case where the defendant's negligence left unaltered the risk of the patient suffering harm (at [64]).
By contrast, in Carangelo v State of New South Wales [2016] NSWCA 126, another case of a police officer who suffered psychiatric injury as a result of years of accumulated stress in the Police Force, Emmett AJA (Macfarlan and Gleeson JJA agreeing) at [80] framed the question of causation being whether the claimant's psychiatric Injury would have been prevented or, possibly, alleviated to a significant degree by the actions which the defendant, through its officers was bound to take. The claimant in that case was unable to prove causation since the claimant could not demonstrate, on the balance of probabilities, that the acts which should have been taken would have resulted in any relevant difference, insofar as the claimant's psychiatric injury was concerned. Macfarlan JA, in his concurrence (with whom Gleeson JA also agreed), noted (at [2]) that what the claimant must establish is that an adverse difference in the claimant's condition, caused by the negligence.

[115]

Failing to conduct debriefings in 2005

Whether or not a critical incident debriefing was 'mandatory' or needed to be 'considered', the NSW Ombudsman's report indicated that the debriefing required the voluntary participation of the serving officer. For the debriefing to be effective, then, two (related) things were required: first, the consent of the officer to participate; and secondly, the preparedness of the officer to genuinely and honestly participate in the provision of relevant information.
Further, it is necessary to posit what consequences would likely flow from the debriefing. Questions would arise as to what treatment the plaintiff would require, whether the plaintiff would be assessed as fit to undertake further general duties, and if not, what steps the Police Force might take; before a comparison is made with the situation that actually occurred.
I find that it is more likely than not that had the debriefings been proposed for the plaintiff after each incident in 2005, the plaintiff would have consented to participate and she would have provided an honest account of her difficulties. Although it is true that she evinced a level of hostility towards Dr Vickery, that was in the context of prospective litigation. I also accept that she was less than fully forthcoming to Ms Hanna, a matter I return to below on the section in these reasons concerning contributory negligence. My impression of the plaintiff, however, was that when assessed by someone who she considered sympathetic, or at least empathetic, towards her, the plaintiff was someone who opened up and did so in an honest fashion. This is not the type of case where doubt may attend the efficacy of treatment on account of the circumstance of an officer feeling 'forced' to participate, which concerned Leeming JA in Briggs.
I am, unable, however, to determine what difference it would have made if the plaintiff did receive a thoroughgoing psychological assessment in 2005. SC Richardson did not notice any ongoing behavioural concerns about the plaintiff in 2005. The chronologies of the parties do not indicate any significant event occurring in the plaintiff's service from October 2005 until April 2006, when the plaintiff sustained a back injury. As I noted earlier, in the period from 2004 to June 2005, the plaintiff appeared to be travelling well at work, at least in the performance of her duties, save for her dispute with Officer McSweeney.
In his first, and main report, at section 4, pp 23-24, (Exhibit R), Professor McFarlane placed emphasis upon that back injury - and the manner in which it was suffered, being when the plaintiff was assaulted - and resultant psychological vulnerability as being a point where assessment should have occurred. He explained that the physical injury, and the consequential delay from work, also affected her 'psychological morbidity'. He did mention the incidents in 2005 in passing, but did not identify, and could not identify, what it was about her symptomology in 2005 that was likely to lead to a diagnosis of psychiatric illness, such as PTSD. At section 8 (p 25), Professor McFarlane even more explicitly identified the back injury on ANZAC Day 2006 as marking the 'critical turning point'. In his first written report, Dr Murray adopted Professor McFarlane's view about the onset of PTSD, which he (apparently) erroneously identified as being in 2005 (Exhibit T, p 27).
However, when the experts gave their evidence concurrently, there appeared something of a switch. Professor McFarlane said he adopted Dr Murray's opinion as to the point when diagnosable symptoms of PTSD were present since Dr Murray had a closer association with the plaintiff. Dr Murray did not explain what effect the effect of exposure to the events altered the risk of the plaintiff suffering from PTSD.
However, in her submissions, the plaintiff did not argue, as a breach of duty, the conduct of the Police Force after the plaintiff's back injury suffered in April 2006.
Accepting, as I do, that it was the exposure to a large range of incidents over a long career which contributed to the PTSD, in my view, the plaintiff has not proven that the negligence in the Police Force in its lack of response to the two incidents in June and October 2005, respectively, altered the risk of her suffering psychiatric illness, or alleviating the severity of that condition in 2005. I consider that the position is the same in relation to her condition of Major Depression.
However, the omission to conduct critical incident debriefings was procedurally significant and had consequences for causation findings on other breaches of duty that I have found, occurring in 2007. In the NSW Ombudsman's Report (Exhibit Y), an area of concern that was mentioned (at p 17) in connection with critical incident debriefings was an absence of record-keeping and documentation. Although, as I have said, the version of the standard operating procedure (Exhibit X) in evidence was of poor quality, it did appear that subsequent to the Ombudsman's Report, provision was made for the documentation of such an incident, at least in respect to the filling out of a form and the making of a COPS event on the police system.
That being so, had the critical incident debriefings occurred, as I consider that they should have, there would (or should) have been a record for those health practitioners of the plaintiff having endured the incidents that she had in relation to the Garland MVA and 'dead man Danny', which would (or should) have been accessible for any health practitioner assessing her in 2007, and thereafter. Records of her exposure and, at least, some identified reaction to traumatic incidents would, in my view, have been relevant evidence for a health practitioner considering her mental health in 2007.

[116]

Failing to assess the plaintiff's fitness for general duties from May 2007 through to October 2007

I noted that on 16 May 2007, an EAP counsellor identified the plaintiff's "acute" stress, anxiety and depression. Less than a month later, a close friend and colleague had suicided. This followed tangible signs of distress following the suicides of colleagues, sick leave for situational stress earlier in the year (March and May).
I find, first, that if referred to the police medical officer in May 2007 for a proper assessment (internally, or externally) of her psychological health, as a precondition to her return to general duties, the plaintiff would have consented to such assessment. If the referral was mandated, I do not see that the plaintiff's attitude would have been different.
I find, secondly, that it is more probable than not that if an assessment had been conducted, it would have disclosed that the plaintiff was suffering depression. The best, and contemporaneous, evidence for this is the EAP consultation note about which, as I have said, Command had no visibility. As indicated in the section on breach, at least the experts McFarlane, Murray and (apparently) Mutton consider it was likely that she was depressed at that point.
If that diagnosis was made, then the plaintiff was not fit to continue general duties and the apprehension and dread felt by her from May through October 2007, which only exacerbated that depression, would have been avoided and, in that way, would have alleviated her symptoms. Further, until medical or psychological assessment was made to the contrary, she continued to remain unfit for general duties.
This was likely to present a choice for the Command at LAC - Lake Macquarie. If Command was unable to accommodate an officer who could not perform general duties, then, in my opinion, which was accepted by Professor McFarlane, the duty of care of the police force was to see to it that the plaintiff received the treatment she needed and discharged for medical reasons. I understood Commander Clarke gave evidence to the same effect.
This did not occur. Instead, although she did not actually serve in the capacity as a general duties officer, the prospect of her doing so hung over the plaintiff's head and in my view caused psychological injury from May 2007 and was exacerbated with the events in 2007 which I have described: the suicides and the difficulties with colleagues in October 2007, including Sgt Boyd, until 25 October 2007, when the plaintiff submitted a psychological injury report due to work-related stress. She was experiencing frustration with what she regarded as a lack of support for her advocacy in OH&S committees. Thereafter in November, she received further unwelcome exposure to Ms McSweeney, with whom she had previously had a bad workplace history and, throughout late 2008, she had her dispute the Superintendent Rae.
There were multiple indications, subsequent to the last of those suicides, that for the balance of October 2007, the plaintiff had sustained a severe aggravation of a pre-existing susceptibility to depression. Mr Folwell, in his report of March 2008, referred to the plaintiff's experiencing of symptoms of depression "in late 2007"; notwithstanding her attempts to work through to February 2008. In May 2008, Dr Spruce diagnosed Major Depressive Disorder. It was notable that the psychologist, Mr Peters, in his report of 2009 (following assessment of the plaintiff in December 2008), spoke almost entirely in terms of the plaintiff's depression; without express reference to traumatic symptoms. In his first report, Professor McFarlane noted symptoms of depression, explicable by her despair about the inability or unwillingness of others to resolve her difficulties in her workplace; which might have triggered a 'propensity to overreact'. This tendency to over-react, I think, was manifested in October 2007 with her abrasive interpersonal dealings with colleagues, especially, towards Sgt Boyd and apparent frustration from the lack of support the perceived she was receiving from the OH&S committee in her advocacy for officer welfare. On the latter point, I consider that Professor McFarlane made an insightful observation (Exhibit R, p 20) about the plaintiff championing the causes of officers in difficulty 'as a way of dealing with her own distress'.

[117]

The significance of the Hanna assessment -22 January 2008

The defendant cites Ms Hanna's assessment of her in January 2008 as signalling a view that she was fit to be transferred to the Mounted police which necessarily entailed fitness to perform general duties. In my opinion, however, in January 2008, the plaintiff did not undergo the type of rigorous assessment of the kind that she should have received from May 2007 and continuing up to October 2007.
I accept the evidence of Professor McFarlane and Dr Murray that it cannot be inferred that a diagnosis assessment was performed. As Mr Mutton observed, she was not referred for assessment of a disorder. I accept the evidence of Professor McFarlane and Dr Murray that there is nothing, on the face of Ms Hanna's report to indicate what, if any, diagnosis had been taken, or whether any consideration had been given to her mental health history of the plaintiff. There is nothing to suggest that she did anything more than simply ask questions, without reference to her medical and psychological record (such as that was, or should have been). Even the taking of the history was recorded as eliciting tears from the plaintiff but, to my mind, incongruously, Ms Hanna concluded that she had no symptoms at all.
Ms Hanna noted that the plaintiff had seen an EAP psychologist in the past, but her report of the assessment indicates that she made no follow up inquiry of the plaintiff as to whether, or what steps that may have led to in the plaintiff's on-going assessment and treatment.
As Mr Mutton - in one of the few occasions in which he ventured comment on the plaintiff's personal circumstances - noted, the context for Ms Hanna's assessment was the plaintiff's application to join the Mounted Police. From late October 2007, she wanted to get away from performing frontline duties out of Toronto Station. Hence her various expressions of interest in other positions, including the Mounted Police. The plaintiff wanted to put her 'best foot forward'. That is not to say that she would have been dishonest in answering questions, but it was understandable if she wanted to 'accentuate the positive' in her interaction with Ms Hanna such a way as to make it difficult for Ms Hanna to perform a clinical diagnosis. (I address later in these reasons the significance of the plaintiff's conduct on the issue of contributory negligence).
Granted that Ms Hanna was entitled to take into account the plaintiff's expressions of optimism and motivation, this was only one of a range of considerations that she needed to take into account, for a proper assessment to have occurred.
I consider, further, that at the time, it was passing strange that Ms Hanna could not identify any symptomatology when, the very next day (23 January 2008), the plaintiff consulted an EAP counsellor again, and saw another EAP Counsellor on 13 February 2008; and yet again, on 20 February 2008.
For these reasons, I do not regard the content of the police psychologist's assessment as being a reliable indicator of her then mental condition.
In my opinion, Commander Clarke's omission to reasonably satisfy himself about the plaintiff's mental capacity to return to frontline duties before deciding to transfer her to Toronto by arranging proper assessment, did lead to a worse outcome in exacerbating her depression. The plaintiff was left in a vulnerable state, unable to manage or cope with the prospect of a return to general duties and unable to cope with tensions in the workplace that eventually boiled over in her dealings with Sgt Boyd. She was also unable to cope with the advice that she would be moved to Toronto, to be put on general duties contrary to her expectation, facilitated by the Police Force (late in 2006 or early 2007), that she would remain on station duties, in Morriset. It caused stress to her to face the prospect, again, of dealing with officer McSweeney. Eventually, also, she was unable to cope with the distress occasioned (inadvertently) when Superintendent Rae threatened to revoke her special sick leave in 2008. Her responses to all of these events were, in my opinion, consistent with an officer with deep-seated depression and that, if properly investigated, before the decision to transfer her in October 2007, the added distress would have been avoided.
The negligence, more probably than not, did alter the risk of the plaintiff suffering from major depression. In this sense factual causation to contribution to Major Depressive Disorder is established.
In contrast, however, I am not persuaded that if a thorough (diagnostic) assessment of her mental health had been undertaken in 2007, it altered the risk of the plaintiff suffering Post-Traumatic Stress Disorder, or the chronicity or severity of that particular disorder. There were no further traumatic incidents of the kind identified in Dr Murray's report (Exhibit T, p 25) to which the negligent failure to perform a thorough psychological assessment left the plaintiff exposed, after 2007. She had been insulated from frontline duties since ANZAC Day 2006.
As I have found, had the 'systems of work' been functioning as they should have been, critical incident reports about the plaintiff arising from the 2005 incidents involving the MVA fatality and 'dead man Danny' would have been accessible to the health practitioner. But it is speculative to consider how, if the plaintiff was asked about those events during an assessment in 2007, she might have responded in a way that might have been significant.
There are several problems in attributing a likely diagnosis of PTSD in 2007 even with the information that was, or which should have been, available. The first is that one of the symptoms, as identified by Professor McFarlane, is a sufferer's likely natural (if unintended) avoidance of discussion about the traumatic events. A second is that any diagnosis of PTSD was affected not only by what a patient disclosed (or did not disclose) but other intrinsic matters such as a sense for how the patient presented. A third and related problem is that some of the symptoms of PTSD overlap with other comorbid conditions, such as here, major depression, or an anxiety disorder of some kind. A fourth, in this plaintiff's case, was the omission to refer to symptoms which do distinctively mark out PTSD: nightmares and flashbacks. The evidence before the Court was to the effect that these symptoms were not evident until after the plaintiff was medically discharged.
All of the contemporaneous medical evidence, including evidence of a psychiatrist (Dr Spruce) and psychologists made no reference to the sort of symptoms associated with PTSD until after the plaintiff's medical discharge from the Police Force. Although it is true that her witness statements are filled with vivid details of the traumatic episodes, it was not until those statements that the plaintiff identified symptoms consistent with that particular disorder. Professor McFarlane identified the plaintiff's back injury as being a turning point, in April 2006. But the psychological consequences of that event contributed to the discrete psychiatric illness of depression; and not, in my view, to PTSD.
In so concluding, I acknowledge the opinion evidence of Professor McFarlane and Dr Murray to the contrary. But their evidence as to the likelihood of PTSD being diagnosed, whilst strongly asserted, did not persuade me how or why the disorder could have been identified in 2007 and accordingly I am not persuaded that it is more probable than not that the PTSD would have been diagnosed in 2007.
That being so, in my opinion, it is unnecessary to assess the vexed question of whether any negligence of the Police Force, at any time, increased the risk or the severity or chronicity of her suffering PTSD.

[125]

Consideration - critical factual findings

I find that the plaintiff has no residual earning capacity on the open market, as substantially agreed by the experts.
I do not consider that the evidence is sufficient to find that the plaintiff would, but for the negligence of the Police Force, have gone on to become a Level 1 Inspector up to trial, or beyond. In particular, no evidence was adduced as to the requirements, other than the length of service, to attain such position. Being an Inspector is a pronounced step beyond the rank of a senior non-commissioned officer. Different qualities are required and although SC Richardson spoke highly of the plaintiff himself, there was no objective evidence that spoke of her compatibility with a leadership position of that kind, whatever her industriousness and enthusiasm might have suggested throughout her career. Further, progress to that position would be affected by a range of other variables including vacancies and the extent of competition for positions. For the purpose of assessing past loss, I prefer the defendant's submission that she would have risen no higher, in rank, than Senior Constable Level 6.
I do not accept the defendant's submission that on account of comparables, that she was bound to retire by the age of 60, for which there is no evidence.
I do not consider that any prediction could be made about any improvement in the plaintiff's capacity on the basis of the determination of this litigation. That is simply too speculative.
On the other hand, in relation to future loss of capacity, notwithstanding a relative paucity in the evidence, I assess that there was a not insubstantial prospect, which I assess at 30%, that for the duration of her career, she would eventually have become a Level 2, Leading Senior Constable. Unlike the rank of Inspector, it does not seem to me that the possibility of attaining that rank was out of reach if, as the defendant contended, she was capable of obtaining the rank of Senior Constable Level 5, Step 2 virtually 11 years ago.
In terms of the duration of her career, as will become apparent, I have accepted that a greater than usual discount should be given for vicissitudes. Doing the best I can, I consider that her career was likely to end by the age of 60. If, as I find, by 2007, prior to any negligence causing her loss or damage, she was only fit for restricted duties in a station, because of her back injury, technological developments being what they likely would become, it may be problematic that a police officer could continue in the capacity.
In the light of these findings on the damages, the parties should try to reach agreement on the components for past economic loss (including past loss of superannuation, and the Fox v Wood component) and future economic loss (including future superannuation).

[127]

Deduction on DC v State of NSW principles

The defendant submits that the plaintiff's total award should be reduced further by 80%, in accordance with DC v State of New South Wales [2016] NSWCA 198 ('DC') for the effects of the plaintiff's injury flowing from a multiplicity of psychiatric causes, including events for which the defendant is not responsible. That is, the defendant should only be liable for the psychiatric harm suffered from, and not before, the date of breach of duty. This submission was based upon Dr Vickery's assessment in his 2015 report.
There is evidence of a predisposition to depression and anxiety. It was actually diagnosed in August 2002; even though it appeared that the plaintiff went into remission. Dr Spruce, in his May 2008 report, believed, on the basis of the history given by her that depression first was evident in 1999. There was a suggestion, not fully developed in the evidence, or submissions for that matter, that the plaintiff self-identified with certain genetic traits of her father, who Dr Spruce believed had bipolar disorder. Then in 2006, the plaintiff became terribly distressed to learn that her sister and one of her parents received diagnoses of cancer. Her father also died in January 2007.
The plaintiff submitted that the defendant could not rely upon DC in circumstances where there was earlier conduct, prior to 2005, contributing to her overall condition, for which the defendant was liable.
In DC, Ward JA expressly endorsed the following proposition from Professor Luntz: "…the plaintiff must prove on the balance of probabilities that the defendant's negligence did contribute materially to the present symptoms (this is the legal onus that rests on the plaintiff). Once that is satisfied, there is an evidential onus on the defendant of proving that the alleged pre-existing or subsequent natural condition did exist and that this condition in its natural progression would have produced similar symptoms. If the defendant is unable to satisfy the evidential burden, the court will reduce the plaintiff's damages for contingencies to no greater extent than in the ordinary case. If, however, the defendant shows that there was a real chance that the plaintiff would have developed similar symptoms from a natural condition attaching to the plaintiff, the court will make a greater reduction than normal to reflect this increased chance."
Sackville AJA, in his concurrence, noted that it can be difficult, in the realm of psychiatric injury, to identify with reasonable precision the pre-existing injury which has been exacerbated by a defendant's negligence, echoing (at [393]) the point raised by Basten JA in State of New South Wales v Burton [2006] NSWCA 12 at [76], that precision in such cases, at least in relation to aetiology, "tends to be an aspiration rather than a reality".
In my opinion, care needs to be exercised when seeking to elevate the observations of Ward JA into a binding principle of new law. Basten JA, who admittedly was in dissent, noted (at [158]) that it was 'contestable' to reduce a damages award by the proportional discount imposed by the trial judge in that case. Basten JA's reservations have subsequently been noted, with approval, in subsequent cases at first instance in the Supreme Court of New South Wales [18] .
Sackville AJA expressly indicated (at [402]) that there was room for debate about how damages should be assessed following the circumstance of it being established that the plaintiff had a pre-existing disability. His Honour referred to the High Court's earlier decisions in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164.
In Purkess v Crittenden, Barwick CJ, Kitto and Taylor JJ referred to Watts v Rake and said at 168-169: "We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial... it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence. In the present case the evidence accepted by the learned trial judge by no means established with any reasonable degree of precision the extent of the appellant's pre-existing affliction or what its future effects, apart from the result of the defendant's negligence, were likely to be. That being so we think it was proper for him to deal with the case on the basis that the defendant's negligence was the cause of the appellant's permanent disability and, accordingly, we propose to deal with this appeal on the same basis." (emphasis supplied)
Both decisions of the High Court were reconsidered by Ipp JA in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, a decision of the Court of Appeal post-dating the High Court's decision in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. As his Honour said at [106], at the point when the Court is considering the assessment of damages (as distinct from causation), the possibility of a pre-existing condition giving rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury is relevant to considering the vicissitudes; as do, other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition.
His Honour was conspicuously reinterpreting the High Court's earlier decisions in Watts and Purkess in the light of Malec principles. However, in my opinion, the principle articulated by Ipp JA is consistent with the line of authority going back to the High Court's decision in Wilson v Peisley (1975) 7 ALR 571 at 574 per Barwick CJ, being that although there was a fair chance that some precipitating cause other than the defendant's act would have brought the plaintiff to the same state, this would not necessarily have occurred, the court must evaluate that chance and discount the damages accordingly [19] . I do not understand Ward JA in DC v State of New South Wales as espousing any different principle. To the extent however, that the defendant invites me to engage in some extensive computation and apportionment of all the causes, other than the negligence, contributing to the plaintiff's ultimate condition, I do not understand Ward JA to suggest that such course is mandatory. Rather, in a common law claim for damages for personal injury where the injury is psychiatric in nature, in my view, the Court is entitled to adopt a robust approach in evaluating the contributions as a whole.
The defendant submitted that it discharged its evidentiary onus of proving that there were multiple causes of the plaintiff's PTSD resulting in the need for an apportionment of damages. Professor McFarlane said that there was a substantial contribution to the PTSD from events occurring before 17 June 2005. Dr Murray also referred to conflict between the plaintiff and her workplace.
The plaintiff submitted that it was for the defendant to disentangle the causes of her condition, which it did not do. The Police Force continuously engaged in negligent conduct which caused the discharge and her incapacity on the open market.
Here, it is likely that the plaintiff had a predisposition to a psychiatric illness, like depression. Professor McFarlane (Exhibit R, p 22) and Dr Spruce (in his report of 5 May 2008) thought so. But notwithstanding her pre-disposition to depression, which flared in 2002, given the medication prescribed for her, the plaintiff had managed the condition to such a degree that it went into remission. But in 2006, close family members received diagnoses of cancer, which affected the plaintiff's mental health and her father died in January 2007. In my opinion, the fear and sense of dread at the prospect of returning to the frontline and then the suicides of colleagues in 2007 had a very profound and debilitating effect upon the plaintiff, probably greater than she realised at that time. The failure to assess and treat her reaction to the deaths of her colleagues had spin-off effects. It galvanized, in particular, what others might have regarded as her strident advocacy for the welfare of officers in a way that caused conflict with her colleagues and only worsened her condition and substantially diminished her capacity to meet, with something approaching equanimity, the prospect of her returning to general duties. I accept the plaintiff's evidence that, in late October 2007, she reasonably interpreted her treatment in a way that suggested to her that the Police Force did not see a role for her other than to be 'on the truck' and consider that this filled her with dread. This accelerated further her condition. I accept her evidence that after informing Commander Clarke that she could not cope with operational duties anymore, the latter's response was that he could only offer her operational duties; a response that, although honest and possibly well-meaning, was detrimental to her mental health.
I do not accept Dr Vickery's view that the plaintiff has OCD contributing to her incapacity. That opinion was a medical outlier.
To the extent to which any 'apportionment' of causes should be assessed, the probable effects of the plaintiff's pre-existing disposition to depression had been managed for a significant period of time and could, with proper assessment and treatment, continued to be managed in a way that did not destroy her capacity to work on the open market, which occurred onwards from about February 2008 and which, I have found, was caused by the Police Force's negligence, for which the defendant is responsible.
I take into account, in addition to the plaintiff's pre-existing disposition to psychological injury, the plaintiff's back injury, which is unrelated to the defendant's negligence, as I have found it, and has also diminished the plaintiff's capacity to work on the open market. I note here the absence of other qualifications obtained by the plaintiff since she left school, which would necessitate substantial re-skilling. I accept that a not insubstantial part of the plaintiff's depression is based upon a retrospective narrative of the events that occurred during her period of service prior to 2007. Other than the back injury, however, to the extent that it is possible to distinguish in symptomology between disorders, it is the symptoms of depression which account for the lion's share of contribution to incapacity to work.
I would make a greater allowance for the contingencies, to reflect the chance that the pre-existing disposition and other circumstances for which the Police Force were not responsible would have achieved the same result. I assess that deduction at 40%.

[130]

Consideration

The compensable damage, as I have found, was caused by the negligence was the plaintiff's Major Depression, established by the failure of the Police Force to have her properly assessed from May 2007.
Contrary to the defendant's submissions, which were pitched at a rather abstract level, I do not accept that, as a generalisation, the plaintiff concealed her psychological issues from command. In May 2007 she told Commander Clarke that she could not cope. Around the same time, she availed herself of the EAP facility which all the experts accepted was a reasonable step for her to take in her own interests. At one point, she had also seen a Chaplain. She saw the psychologist in late October 2007. She may not have used the 'Peer Support Officer' facility, but Mr Mutton's evidence indicated to me that this was, with no disrespect to him or anyone else within the Police Force, probably the weakest of the services supplied to general duties officers, from personnel whose training consisted, apparently, of not much more than a 3-day training program. In this regard, the plaintiff's concerns were with workplace colleagues and conflict with them, and her supervisors. It is very doubtful if peer support officers would have assisted her to lessen the psychological harm she sustained through the workplace from 2007.
This particular plaintiff was not the sort who, by nature, concealed matters that were troubling her. She was seen to cry on occasions, certainly in and from 2005. She was no 'shrinking violet' when asking her supervisor to be excused from delivering death notices. Nor was she reticent in making workers compensation claims; having made a few of them during the period of her service and lodging WorkCover certificates to assist her to do so.
Her 'adaptational' or 'attributional' style, resulting in conflict with colleagues, supervisors and managers, was on display in the early part of the century which, unsurprisingly, resulted in one of her earlier commanders, Commander Shearer, making a referral for her assessment. One surprise amongst many is that after the plaintiff's transfer to the Lake Macquarie Command, there was little or no follow up; despite Commander Clarke's concession that, had he known of the plaintiff's history, that might have had some bearing upon his decision-making.
Given that I have found that the damage she suffered psychologically was occasioned by conduct amounting to a failure to assess, save for a qualification, I adopt the observation made by Sackville AJA in not dissimilar circumstances in Sills (at [172]) that it would be unjust for the plaintiff to be found contributorily negligent by reason of conduct which was the product of the very condition the Police Force should have detected and addressed.
The qualification is this. I consider that the plaintiff was depressed when she saw the police psychologist, Ms Hanna in late January 2008. Although I acknowledge that she had an interest in applying for a new position within the Police Force and a natural incentive to minimise her condition, had she been more forthcoming than she was with Ms Hanna, far from averting the situation of her being assessed as fully fit for general duties (including having access to a firearm), and had a truer picture of her psychological condition emerged, I consider it probable that some of the later stress occasioned to her arising, for example, from the looming withdrawal of her special sick leave by Superintendent Rae may have been avoided. Nevertheless, I consider that her own contribution to her psychological condition to be small, relative to that of the Police Force. As I have indicated, Ms Hanna's assessment in January 2008 was inherently inadequate for her needs at that time, and before. For someone with this officer's history, which was known or which should have been known, I consider it appropriate that there be a 10% deduction in her damages award because of contributory negligence. When comparing culpability and causative effect, it is not being excessively paternalistic to expect the Police Force to have acted upon multiple triggers to ensure an officer at high risk of significant psychological injury was properly assessed at the times I indicated here.

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Judgment (135 paragraphs)

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