State of New South Wales v Doherty

Decision of primary judge 46The primary judge recounted the history of Mr Doherty's career in crime-scene investigation (pars [14]-[85]) and his subsequent history (pars [86]-[97]). He discussed the psychiatric and psychological evidence before him, including that of a psychiatrist Professor McFarlane, who gave evidence for Mr Doherty, and Professor Tennant and Dr Brown, psychiatrists who gave evidence for SNSW (pars [98]-[133]); and considered Mr Doherty's credit (pars [134]-[139]) finding him overall to be a genuine witness. 47The primary judge then considered when was the onset of Mr Doherty's psychological injury (pars [140]-[149]), finding that it began in 1994. 48The primary judge considered SNSW's duty of care (pars [150]-[160]) finding that it had a non-delegable duty to take reasonable care to avoid exposing Mr Doherty to unnecessary risks of injury, including a duty not merely to provide a safe system of work but to maintain and enforce such a system. 49The primary judge considered whether there was relevantly a foreseeable risk of injury (pars [161]-[167]); and found there was a foreseeable risk of psychological injury to Mr Doherty from his work of crime-scene investigation; and that the probability of psychological injury to him was of a high order and the psychological injury was likely to be serious. 50The primary judge then considered the system that had been in place to deal with the risk (pars [168]-[174]). 51He then considered whether SNSW's duty was breached before 2003 (pars [175] to [202]). The primary judge had earlier referred in par [164] to a memorandum dated 12 May 1999 by Ms Lette and Mr Mutton to Dr Raymond, Director Forensic Services, recommending annual review of crime-scene examiners by way of interview, use of psychometric tests, site visits by psychologists and brief annual feedback about each employee to their Commander; and the primary judge gave his conclusion as to breach before 2003 as follows: 202 A reasonable person in the position of the police force would not have partially implemented the Lette and Mutton recommendations. The recommended system of annual reviews of each crime scene investigator by way of an interview and psychometric testing was a reasonable response to the high risk of psychological injury to them. Without an annual review by way of an interview with a psychologist, the systems which the police force had in place were not a reasonable response to the high risk of psychological injury. This was one way in which the defendant breached its duty of care to the plaintiff in 2003. Another way was in 2001 by failing to act upon the indications of under-reporting in the plaintiff's 2001 MMPI-2 assessment. In these circumstances, a reasonable person in the position of the police force would have ensured that the plaintiff was clinically interviewed by a psychologist. The third complaint of breach of duty is, in my opinion, established. The breaches of duty, which I have identified fall within the particulars of negligence quoted at [3] above. 52Next, the primary judge considered whether SNSW's duty was breached during 2003 (pars [203]-[213]). He reviewed the submissions of counsel, and then continued: 207 As has been recounted at [41-42] above, the plaintiff had been referred through the EAP [Employee Assistance Program] to Ms Bloom. The psychologist rang Dr Harvey who saw him on 27 May 2003. Dr Harvey diagnosed depression and prescribed Cipramil. The plaintiff was placed off work from 20 May 2003 until 4 June 2003. On the day before he returned to work, Dr Harvey considered the plaintiff's mood was "6/10" and his depression was getting better. The plaintiff then returned to crime scene investigation work but was taking Cipramil which had been prescribed at 20mg once a night. The plaintiff next consulted Dr Harvey on 17 June 2003 whose diagnosis was "depression better" but the dosage of Cipramil increased from one 20mg a night to one and a half 20mg a night. The dosage of Cipramil was reduced to one 20mg a night by Dr Harvey on 29 October 2003 who recorded that the "depression [was] going okay". It seems that, other than these consultations with his general practitioner, the plaintiff's diagnosed depression was not otherwise monitored. The plaintiff was not reviewed by Ms Bloom until May 2004 nor was there any communication between Dr Harvey and the police force. 208 Although there was discord between Professor McFarlane and Professor Tennant upon whether the plaintiff should have been returned to crime scene work whilst on medication, all of the experts agreed that his prognosis should have been closely monitored. Dr Brown opined that she probably would have trialled him back at work but would have kept "a very close eye on him because of the concern that he might relapse". Very careful monitoring after May 2003 involved reviewing him regularly probably once a month or a fortnight. She considered that, as depression increased vulnerability to the effects of exposure to gruesome scenes, his return to work should have been on restricted duties for several months before he trialled himself on crime scene attendance. In this respect there was little difference between the opinions of Dr Brown and Professor McFarlane who considered that the plaintiff could return to work full-time "but for a period of time he should have been withheld from crime scenes." 209 Whilst Professor Tennant was of the view that the plaintiff could return to work with some symptoms, he said the general practitioner, psychologist and police force would be aware of "keeping a close eye on him." 210 The plaintiff had not fully recovered when he returned to work on 4 June 2003. It is of no consequence, in my view, that the cause of the diagnosed depression may have been considered to be as a consequence of his marital difficulties. The plaintiff was in fact experiencing nightmares and flashbacks of "jobs that he had been to previously" but he had not told his general practitioner of them. A significant degree of triggered distress remained. He was vulnerable to relapse and at the very least required close monitoring. He was neither psychometrically tested nor clinically interviewed by a psychologist from the Police Psychology section or elsewhere. He was not referred to the PMO. 211 It is evident that the police force was aware of the increased risk of psychological injury by returning FSG officers who had developed psychological symptoms to crime scene investigation work. Superintendent Philip Flogel states (ex 31): "Crime Scene officers suffering from psychological symptoms who are supported by their treating doctors in returning to work, are wherever possible, provided with restricted or alternative duties within FSG." 212 No consideration, it appears, was given to placing the plaintiff on restricted duties. 213 The guideline for annual psychometric testing was not followed at all in 2003 in the plaintiff's case. Superintendent Flogel gave evidence that if an officer was unavailable to be tested for reasons such as court duty or leave, the officer would be followed up to ensure that the annual test was undertaken. The evidence does not disclose why the plaintiff was not tested. I do not accept Mr Menzies's submission that the plaintiff had been diagnosed with depression and as a consequence the screening test was otiose. As the plaintiff had developed psychological symptoms from which he had not fully recovered and was vulnerable to relapse and psychological injury, reasonable precautions against the foreseeable high risk of psychological injury included placement on restricted duties, psychometric testing and a clinical interview by a psychologist before he was returned to crime scene investigation duties. Upon his return to these duties, the plaintiff should have been closely monitored. Unfortunately, he was not. In these circumstances, a reasonable person in the position of the police force would have taken those precautions and in failing to do so, the police force breached its duty of care to the plaintiff. The breaches of duty which I have identified fall within the particulars of negligence quoted at [3] above. 53The primary judge then considered whether SNSW's duty was breached during 2004 (pars [214]-[237]); and he found a number of breaches:

1. Dr Li's use in 23 November 2004 of a DASS screen (a test for depression and anxiety disorders) to test Mr Doherty, rather than a PCL test (a test for detection of post-traumatic stress disorder);
2. Dr Li's failure to refer Mr Doherty for an independent review by a psychiatrist;
3. Failure to bring the contents of Ms Lette's email of 1 November 2004 to the attention of Dr Li; and
4. Failure to closely monitor Mr Doherty after Dr Li certified him as fit for full operational duties. 54The primary judge then considered the question of causation (pars [238]-[253]). Having referred to the Civil Liability Act 2002 s 5D and the submissions of the parties, he continued: 242 I am not at all persuaded by the defendant's submission that psychometric testing and an interview by a psychologist would not have revealed anything due to the plaintiff's reticence to disclose his symptoms. During the interview with Ms Bloom on 19 May 2003, the plaintiff had partially disclosed issues he was having at work which, regrettably, was not followed up by another psychological interview before he was further exposed to crime scenes. 243 In the circumstances of this case, it is unnecessary to attempt to resolve the disagreement between Professors McFarlane and Tennant on the concept of kindling. But for the breaches of duty during 2003 the plaintiff would not have returned to crime scene work on 4 June 2003. He was traumatically confronted with the death by suicide of the girl at Chevalier College and the death of the elderly pedestrian in November 2003 at a time when he was experiencing nightmares and anxiety. I am satisfied on the balance of probabilities that these traumatic exposures would not have occurred but for the plaintiff's return to crime scene work and but for the defendant's failure to closely monitor him after he had returned to work. 244 There was no disagreement between Professors McFarlane and Tennant as to the impact that exposure to traumatic events might have upon the plaintiff who had prior symptoms of PTSD. Professor Tennant referred to "chronicity." Re-exposure to more and more traumatic events meant that initial symptoms would not recover, they were likely to get worse and become chronic. Professor McFarlane on this topic gave the following evidence (T 261 L 17-29): "Q. Is it your opinion that him continuing in crime scene investigation work after May 2003 has played a part in his current condition? A. Yes. Q. What sort of part? A. In my opinion, his subsequent relapse occurred for exactly the reasons that I have suggested previously. He was obviously exposed to events in their own right which could cause post traumatic stress disorder, but because he had previously been disordered and equally had major depression, these events simply undid the benefits that he gained from treatment. They reinstituted the disorder of affect and arousal which he was experiencing previously." 245 I accept Professor McFarlane's view that the plaintiff would still be working full-time if he had been taken out of crime scene investigation work in the middle of 2003 and had been provided with appropriate treatment. I find as a matter of fact that the identified breaches of duty in 2003 significantly contributed to the chronicity and severity of the plaintiff's PTSD and major depression. I find that it is appropriate for the scope of the defendant's liability to extend to "the harm so caused." 246 But for the defendant's breaches of duty during 2004, I am satisfied on the balance of probabilities that the plaintiff would not have been certified as being fit for full operational duties in November 2004. I find that it is more likely than not that an independent psychiatric assessment of the plaintiff and testing for PTSD by use of the PCL would have disclosed that he was unwell and suffering from PTSD. The plaintiff was traumatically confronted with the murder-suicide at Oak Flats on Anzac Day 2005 and within a few weeks thereafter the apparent suicide of a young man in bushland near Berry at a time when he was experiencing nightmares and anxiety. But for the plaintiff's return to crime scene work and but for the defendant's failure to closely monitor him after his return to work, I am satisfied on the balance of probabilities that these traumatic exposures would not have occurred. I accept Professor McFarlane's opinion that had the plaintiff been removed from the FSG in November 2004, his outcome would have been different and that he would still have the capacity for employment, probably within the police force. I find as a matter of fact that the identified breaches of duty during 2004 substantially contributed to the chronicity and severity of the plaintiff's PTSD and major depression. I find that it is appropriate for the scope of the defendant's liability to extend to "the harm so caused." 247 There is no merit in the defendant's contention that the precipitant for the PTSD in May 2004 was not work-related and as a consequence there was no breach. This submission was founded upon Ms Bloom's notes on 28 May 2004 of a loss of "2 friends in a car crash on Friday" and Dr Brown's opinion that "possibly the incident of the cousin's suicide and possibly the incident of the friend's motor vehicle accident were causally related to the plaintiff's PTSD". The notation that follows the entry of the 'car crash' in Ms Bloom's notes, however, records that the plaintiff was "feeling lousy since 12 months - been trying to make it like he's allright (sic)." Dr Brown, furthermore, testified that it was difficult to be definitive about this issue and that there was a long list of traumatic exposures during the course of the plaintiff's work over the years outlined in the statement of claim. I accept Professor McFarlane's evidence that there were multiple traumatic events that contributed to the plaintiff's PTSD and it is not possible to identify a single event. I have no doubt that the traumatic exposures in November 2003 contributed to his PTSD and depression. 248 The defendant's breaches of duty before 2003, in my opinion, also contributed to the occurrence of the plaintiff's PTSD and depression. I do not accept that if the defendant had acted upon the indications of under-reporting in the plaintiff's 2001 MMPI-2 assessment and ensured that he was clinically interviewed by a psychologist that nothing would have been revealed. As I have previously observed, the plaintiff made a partial disclosure of work-related issues to Ms Bloom in May 2003 and I have little difficulty concluding that it is more probable than not that a clinical interview by a police psychologist conversant with the 2001 MMPI-2 assessment would have uncovered the plaintiff's traumatic memories, nightmares and sleep difficulties. Professor McFarlane expressed the opinion that an appropriately trained clinician would be likely to see through expressions of wellness by a police officer. Police psychologists were well aware of the tendency of police officers to minimise their symptoms and, in my view, it is unlikely that a police psychologist would have been confuted by the plaintiff's reticence to disclose his psychological problems. But for the defendant's breach of duty in 2001, the plaintiff would not have been further exposed to traumatic crime scenes without having undergone psychological treatment. 249 Another issue requires consideration. The defendant argued that whilst there was a risk of potential exacerbation or aggravation of PTSD by further exposure to traumatic events, there is no evidence that the duration of the pre-existing disorder influences the post-treatment outcome. This is the issue of "entrenchment" which has been discussed at [129(ii)] above. On this topic, Professor Tennant said (T 416 L 33-42): "Now, once treatment is implemented, there is no evidence that the exposure to those previously recurring events affects your ability to respond to treatment. Nor does the chronicity, pre-treatment chronicity affect whether you get better or not. Now, that's the literature I have provided to you about, does duration of pre-treatment chronicity affect final treatment outcome. The literature says - I can't find any literature that does support that and I have provided that review, so the Court - and indeed I think Professor McFarlane - will - will get confused between treatment resistance and chronicity and will keep talking about more events make you chronic, they do, but once treatment begins you either are the sort of person who is a treatment responder or you are not." 250 Professor McFarlane was on the other hand of the view that as the disorder becomes entrenched, the underlying neurobiological abnormalities become progressively inflexible and unresponsive to treatment. 251 Whilst there is some research which supports Professor Tennant's views on entrenchment, the issue is far from settled. I have difficulty accepting in the plaintiff's circumstances that the delay in his treatment has not impacted upon his treatment outcome. In any event, it seems to me that it makes little difference which of the opinions on entrenchment is accepted. According to Professor Tennant a person is either a treatment responder or is not. Dr Durrell, the plaintiff's treating psychiatrist, was not of the opinion that his patient fell within the group of persons who are treatment non-responders. He said this (T 351 L 24-30): "Q. In relation to the treatment that you have been providing to him, has he improved? A. He - I note there's been talk of him not responding. My understanding is that my treatment has been effective in containing his symptoms to a degree and, without treatment, I would anticipate an escalation and a deterioration so in a sense we're holding the line and I consider that to be a treatment response." 252 Dr Brown did not consider the plaintiff to be a treatment non-responder. She was of the opinion that there remained a number of treatment opportunities for the plaintiff and his prognosis was not as grim as it would currently seem to be. The question of his prognosis is considered at [304-305] below. 253 Having made these findings, I consider it to be unnecessary to consider the asserted breaches of statutory duty. 55I note that the reference in par [243] to a disagreement on the concept of "kindling" concerned the nature and degree of circumstances required to sensitise (provide "kindling" for) a person to respond adversely to a later traumatic event, leading to PTSD. Having regard to the highly traumatic nature of the scenes and events to which Mr Doherty was exposed over his whole career as a crime scene investigator, the primary judge said he did not have to resolve this particular disagreement; and there is no challenge brought on that matter. 56The primary judge then considered the question of contributory negligence (pars [254]-[270]). He found that Mr Doherty was guilty of contributory negligence: 264 The plaintiff, however, told Ms Bloom during the consultation on 28 May 2004 that he had been feeling "lousy for 12 months" and had been trying to make it look as if he was alright. In cross-examination, he accepted that he knew that there was something wrong with him but continued with his work. I find that when the plaintiff returned to work on 4 June 2003 he was aware that he was continuing to experience nightmares and flashbacks, all of which were work-related, but he failed to tell his general practitioner, Ms Bloom, Detective Sergeant Hodder or the police psychologists of these problems. I accept that he did not do so because he enjoyed his work, was fearful that he may lose his position in the FSG and furthermore did not wish to let his colleagues down. The plaintiff disguised the fact that he was unwell so that he could continue to work. I am satisfied on the balance of probabilities that the plaintiff, in all the circumstances, knew there was a risk that his psychological problems would intensify if he continued with crime scene investigation work. After all, he had endeavoured to cope for some years but his nightmares and flashbacks had become more frequent. The risk of serious harm was not insignificant. 265 Although one might initially be sympathetic to the plaintiff's motivation in not exposing his symptoms, it is, as I have pointed out at [201] above, of fundamental importance to the criminal justice system that a crime scene investigator carries out his important functions without being affected by psychological injury. The shortcuts that the plaintiff ultimately found himself taking demonstrate the potential difficulties that might arise. I am satisfied on the balance of probabilities that, in the circumstances, a reasonable person in his position would have disclosed his psychological problems. This was a precaution that the plaintiff could simply have taken particularly when he consulted Dr Harvey in June and October 2003 or by arranging to see Ms Bloom or a police psychologist. In failing to do so, he failed to take reasonable care for his own mental health. 266 I should add that the plaintiff's experience of nightmares and flashbacks commenced well before he saw Dr Harvey on 25 February 2002. In the passage of evidence I have quoted at [34] above, he testified that he was "having nightmares and stuff like that" but said nothing about his difficulties to the doctor. It is unnecessary, in my view, for the plaintiff to have known of the nature and extent of PTSD. He could not have understood that his nightmares and other difficulties were otherwise than work related. In failing to tell Dr Harvey of his psychological problems, the plaintiff failed to take reasonable care for his own mental health. 267 The submission that regard should be had to the 'police culture' has, in my opinion, no merit. The initiatives undertaken by the police force to overcome the reticence of police officers to disclose their psychological difficulties included the peer support program and the Welfare Focus Group. The plaintiff had himself encouraged his fellow officers to discuss their problems. I, furthermore, reject Mr Doherty's contention that the plaintiff had in reality no choice but to accept the circumstances in which he had to work. 268 By failing to reveal his psychological problems, the plaintiff exposed himself to crime scenes after he returned to work in 2003 when he knew he was unwell. The traumatic exposures which followed would not have occurred but for his conduct. 269 When the plaintiff returned to work on 8 September 2004 on reduced hours he had been previously diagnosed with PTSD. Upon returning to work, he struggled to cope and was physically sick before attending work. I find that he knew that he had not recovered from PTSD but deliberately chose to hide his symptoms. He misled his general practitioner and commanding officer. The information which he gave to Dr Li was intentionally untrue. The plaintiff could neither have honestly held the belief that he could cope with exposure to crime scene materials without impact on his psychological condition nor understood that he was not having problems after his return to full operational duties. He could not have lacked insight or have been mistaken about these matters. I am satisfied on the balance of probabilities, notwithstanding the plaintiff's desire to remain at work, that in the circumstances a reasonable person in his position would have disclosed his psychological problems to his general practitioner, PMO or commanding officer. This was a precaution he simply could have taken. He failed to take reasonable care for his own mental health. 270 By failing to reveal his true position and by being misleading the plaintiff made it particularly difficult for the medical practitioners, psychologists and supervisors to help him. The plaintiff negligently exposed himself to crime scenes in 2003 and 2004. The traumatic exposures which followed would not have occurred but for this conduct. I find as a matter of fact that his negligence contributed in a significant way to the chronicity and severity of his PTSD and major depression. Nevertheless, I am not satisfied that the plaintiff's contribution to the harm that he has suffered is more than that of the defendant. I do not propose to retell here the defendant's breaches of duty save to say that one consideration is that the defendant knew of the reluctance of crime scene investigators to reveal personal psychological difficulties which might arise from their work and the plaintiff's reticence to disclose his symptoms was reasonably foreseeable. I assess the extent of the reduction in damages by reason of the plaintiff's contributory negligence to be thirty five per cent. 57The primary judge considered whether Mr Doherty's claim was statute-barred (pars [271]-[283]); and he ordered that the limitation period be extended up to and including 13 March 2008, the date on which the statement of claim was filed. 58The primary judge then considered damages (pars [284]-[341]). He rejected the contention of SNSW for deduction of that proportion of damage which SNSW had not caused, noting that the percentage deduction for vicissitudes in assessment of future economic loss included the chance that Mr Doherty would have suffered his illness in any event (par [287]). He reviewed Mr Doherty's disabilities and his prognosis, and assessed his non-economic loss at 37 percent of a most extreme case, giving $175,000 (par [306]). 59The primary judge awarded past wage loss in accordance with Mr Doherty's claim at $178,771.04 (pars [317], [324]); and future economic loss on the basis of $1,404 net per week for 13 years less 15 percent vicissitudes, giving $599,449 (par [325]). He allowed $21,877.25 for past loss of superannuation benefits, $74,055.35 for future loss of superannuation benefits, $15,021.15 for past treatment expenses, $83,892.12 for future treatment expenses and $11,436.95 for interest. The total damages of $1,159,502.86 were then reduced by 35 percent for contributory negligence.

Issues on appeal 60SNSW relies on the following grounds of appeal:

1. His Honour's finding that the appellant was in breach of its duty during and from 2003 was wrong in that his Honour erred: (a) in fact in not finding that the Respondent had been screened and interviewed during 2003; and (b) in finding that it was not reasonable to return the Respondent to work in 2003 whilst still symptomatic and using prescribed antidepressants; and (c) in finding that there was a failure to closely monitor him upon his return to work in June 2003.
2. His Honour's finding that the Appellant was in breach of its duty during and from 2004 was wrong. His Honour erred: (a) in not finding that the failure to provide Dr. Li (PMO) with an email from a police psychologist (Lette) was not unreasonable; and (b) his Honour applied a test which was too onerous, namely, that a reasonably competent police force, by its PMO, Dr Li, would have referred the Respondent to a psychiatrist; and (c) in not finding that it was not unreasonable to return the Respondent to crime scene work as at September 2004 in the circumstances; and (d) in not finding that the psychological monitoring of the Respondent was not unreasonable.
3. His Honour was wrong to find that the concept of a non-delegable duty of care was relevant in determining breach.
4. His Honour was wrong to find that any breach by the Appellant caused the Respondent's psychological injury. His Honour should have found that: (a) his injury was materially contributed to by the Respondent's duties but not in circumstances where the Appellant was in breach of duty to the Respondent; and (b) insofar as the Respondent's injury developed, it did so not because of any breach of duty by the Appellant but because of the Respondent's failure to take care of his own safety.
5. In the alternative to 4 , his Honour's finding on contributory negligence that the extent of the respondent's contribution was 35% was wrong. His Honour should have found that the respondent's contribution because of his own contributory negligence was 100% or a figure approaching that.
6. His Honour erred in not resolving the issue of whether repeated exposure to traumatic events resulted in entrenchment of the disorder because the resolution of that issue was a necessary pre-condition to deciding whether delay in treatment affected outcome.
7. His Honour's finding that delay in treatment affected outcome was wrong. His Honour should have found that delay in treatment: (a) had no effect upon the outcome for the Respondent; and (b) delayed any effect of treatment but did nothing more than that.
8. ....
9. His Honour's finding that the respondent's psychological injury/ disorder would have been detected by a psychiatrist had he been referred to a psychiatrist was wrong. Such a finding was glaringly improbable in the light of his Honour's findings of contributory negligence.
10. His Honour's finding as to damages was wrong in as much his Honour should have allowed for the fact that part of the Respondent's psychological injury was not caused by any breach of duty by the appellant and would have existed regardless of that breach of duty.
11. In light of his Honour's findings on contributory negligence, his Honour was wrong to find that it is appropriate for the scope of the Appellant's liability to extend to the harm so caused.
12. His Honour was wrong not to increase the allowance for adverse vicissitudes to take account of the Respondent's pre-existing psychological injury. 61Mr Doherty relies on the following grounds of cross-appeal: 1 His Honour's finding of contributory negligence (35%) was wrong. His Honour ought to have found no contributory negligence on the part of the cross-appellant. 2 Alternatively, if there was any contributory negligence it was much less than 35%. 3 His Honour erred in finding that the traumatic exposures would not have occurred "but for" the respondent's conduct. 4 His Honour erred in applying the "but for" test in determining the issue of contributory negligence. 62I will consider in turn the following issues: (1) Finding of negligence (appeal grounds 1 - 3). (2) Causation (appeal grounds 4, 9 and 11). (3) Not resolving contested medical evidence (appeal grounds 6 and 7). (4) Not allowing for uncaused damages (appeal grounds 10 and 12). (5) Contributory negligence (appeal ground 5, cross-appeal).

Negligence 63A very general submission made by Mr Menzies QC for SNSW was that it was extremely difficult to detect the onset of a problem like PTSD with someone who is not being frank, with the wish of continuing employment; that the liability of SNSW found by the primary judge in substance lay in SNSW's failure to recognise that Mr Doherty was deceiving it; and that Mr Doherty's injury was in substance caused by his own negligence, that being what caused him to be exposed to the traumatic crime scenes which caused his PTSD. This general submission was relevant to the question of negligence (Mr Menzies in effect said that the primary judge required too high a standard of SNSW, in expecting it to have recognised Mr Doherty's deception of it); to the question of causation; and to the question of contributory negligence. 64SNSW did not suggest that there was error by the primary judge in his finding at par [202] of breaches prior to 2003, although it did contend that this was not causative of any damage. 65As regards the findings of negligence in 2003, Mr Menzies submitted that it was not a breach in 2003 not to screen and interview Mr Doherty. This was because his need for monitoring had been picked up and, to SNSW's knowledge, he was seeing Dr Harvey and Ms Bloom; and, contrary to the primary judge's view, he did not need to be put on restricted duties, he did not need psychometric testing, and a clinical interview with a psychologist before returning to crime scene investigations was unnecessary because of his interview with Ms Bloom in May 2003. Furthermore, any need to be closely monitored was not suggested by Dr Harvey or Ms Bloom, against whom no complaint is made (particularly in circumstances where the substantial problem identified was on the domestic front rather than being work-related, and it was not shown that SNSW knew of the diagnosis of depression). However, Mr Menzies did concede that SNSW should have known of this diagnosis, through the monitoring by a psychologist reporting to SNSW that should have occurred. 66As regards findings of negligence in 2004, Mr Menzies submitted that, in circumstances where Dr Li was aware that Mr Doherty had been diagnosed with PTSD, the email from Ms Lette would not have provided him with any relevant information. It was not a breach of duty for Mr Li not to have referred Mr Doherty to a psychiatrist, as he was himself a medical practitioner who well understood the circumstances in which police officers in the FSG worked, and the risks of psychological injury including PTSD. Mr Doherty's own expert Professor McFarlane did not consider such referral necessary, and Dr Brown considered that Dr Li's conduct was reasonable. There was nothing unreasonable in the way Mr Doherty was admitted back to work, and he was sufficiently monitored on his return. 67Mr Menzies submitted that the fact that SNSW's duty was non-delegable had no relevance to the case. 68I accept that last submission, but I do not think there was any consequent error by the primary judge. 69In my opinion, no error has been demonstrated in the findings of breach by the primary judge. In my opinion the primary judge was correct to hold that SNSW should have foreseen a significant risk of psychological injury to officers involved in crime scene investigation; that it should have foreseen that this psychological injury could be very serious indeed; and that a reasonable response required a high standard of monitoring such officers, which took into account that some of them would be likely to be seeking to disregard or minimise any symptoms in order to continue to fulfil their commitments. 70In those circumstances, it was in my opinion well open to the primary judge to find breach by SNSW in failure to follow up the under-reporting finding of April 2001, and breaches before 2003 and in 2003 in not providing an annual review by a psychologist reporting to SNSW: indeed, ultimately this was not disputed. Accordingly, it was well open to the primary judge to find that the duty to provide such a review was not discharged by Mr Doherty's consultations with his GP Dr Harvey or with Ms Bloom: those persons were not particularly attuned to the need to address the possibility of psychological harm arising from crime scene investigations, and they did not report to SNSW. The diagnosis of depression made in respect of Mr Doherty, at least, would have been known to SNSW if it had provided appropriate psychological review; and this would have been enough to require monitoring of Mr Doherty and, if that monitoring suggested it, restriction of his duties. 71As regards breaches in 2004, in my opinion it was well open to the primary judge to find that Ms Lette's email should have been provided to Dr Li. Mr Doherty had already been diagnosed with PTSD, and even if he did not at that time satisfy the criteria for a present diagnosis of PTSD, at the very least his previous diagnosis of PTSD meant that he was susceptible to its onset and was likely to have been sensitised. In those circumstances, it was open to the primary judge to find that a reasonable employer would have recognised that it was important for Dr Li to have the benefit of the opinion of a psychologist who had some familiarity with Mr Doherty and who was recommending that he see a psychiatrist. 72In addition, in my opinion it was open to the primary judge to find negligence in that Dr Li used the screening test DASS and not the PCL test, the former being a good test for depression and anxiety disorders and the latter being a good test for detection of PTSD - particularly in circumstances where Mr Doherty's work as a crime scene investigator was high risk for PTSD and Mr Doherty had, to Dr Li's knowledge, previously been diagnosed as suffering from that disorder. 73Although Professor McFarlane did not say that Dr Li should have referred Mr Doherty to a psychiatrist, and Dr Brown expressed a view that Dr Li's examination and advice were not negligent, in my opinion it was open to the primary judge to accept the view of another psychiatrist Dr Canaris, given in a report to Mr Doherty's solicitors, and to hold that Dr Li (particularly with the benefit of Ms Lette's email) would as a reasonable practitioner have referred Mr Doherty for assessment by a psychiatrist, or at least a psychologist; and also to hold that SNSW was in breach of duty in permitting Mr Doherty to return to work, without assessment by a psychiatrist or at least a psychologist, and without careful monitoring and/or other steps with a view to ensuring that his duties did not exacerbate his condition. 74Accordingly, grounds 1 - 3 fail. There is a Notice of Contention in which Mr Doherty relies on the Occupational Health and Safety Act 2000 (OHS Act) and the Occupational Health and Safety Regulation 2001 (OHS Reg): it is not necessary to consider this here, although it could be relevant to contributory negligence.

Causation 75It was submitted by Mr Menzies that the question of causation should be considered in the context of the primary judge's finding that Mr Doherty's psychological injury began in 1994, that he had symptoms in 1996 and following years, that by 1998/1999 he was abusing alcohol, and that he had further symptoms in 2001 and 2002, before any proved negligence by SNSW. None of these injuries was caused by SNSW's negligence. Mr Menzies submitted that, even if there had been a follow up of the under-reporting finding of April 2001, the court should not have been satisfied that a psychologist would have detected that Mr Doherty needed to be removed from crime scene investigation or not exposed to traumatic scenes without psychological treatment, especially when it was clear that Mr Doherty would have withheld disclosure of symptoms and would have claimed he was "travelling well". 76Mr Menzies submitted that in any event, the psychometric test in 2002 revealed nothing untoward, suggesting that any problem had resolved; and the 2003 interviews with Ms Bloom did not suggest that a review in 2002 by a psychologist reporting to SNSW would have made any significant difference. 77Similarly for 2003, Mr Menzies submitted, interviews with Ms Bloom did not support the primary judge's finding that a psychologist reporting to SNSW would have uncovered Mr Doherty's traumatic memories, nightmares and sleep difficulties. Even on the evidence of Professor McFarlane and Dr Brown, Mr Doherty was able to return to work full-time in May 2003, albeit that for a period he should have been withheld from crime scenes. In fact, it was not until November 2003 that Mr Doherty was exposed to anything which, on his evidence, caused distress; and even then, this was not such that Mr Doherty felt the need to report it to his medical practitioners. 78As regards 2004, Mr Menzies submitted, the primary judge erred in concluding that a psychiatric examination of Mr Doherty would have precluded his return to work in November 2004. 79Further, Mr Menzies submitted, the findings of causation made by the primary judge were not open, in circumstances where the primary judge did not resolve a conflict in the evidence concerning chronicity and treatment between Professor McFarlane and Professor Tennant: see grounds 6 and 7. Even if the primary judge's views concerning chronicity and treatment were accepted, the cause of Mr Doherty's injuries was his deliberate continuing to expose himself to traumatic events, in circumstances where Mr Doherty well knew that he was ill, that his illness was caused by his exposure to traumatic events, and that continuing exposure would at least continue his illness. 80Finally, Mr Menzies submitted that even if "but for" causation were established, the contributory negligence found by the primary judge was such that the scope of SNSW's liability should not extend to the harm caused to Mr Doherty, within that expression as used in s 5D(1)(b) of the Civil Liability Act . 81In my opinion, it was open to the primary judge to find that, had the under-reporting observation of April 2001 been followed up, by a psychologist with qualifications apt to detect signs of PTSD, the problems then being experienced by Mr Doherty of feelings of extreme fear, helplessness and horror, flashbacks and nightmares, would have been disclosed by targeted questioning, even if Mr Doherty had attempted to withhold disclosure of these things; and this would have meant he would not be further exposed to traumatic scenes without having psychological treatment and being subject to monitoring. 82In my opinion also, it was open to the primary judge to find that but for the breaches in 2003, Mr Doherty would not have returned to crime scene work on 4 June 2003, and (subject to what I say below concerning the conflict between Professor McFarlane and Professor Tennant) that if he had been taken out of crime scene work in mid-2003 and provided appropriate treatment, he would still be working full-time. Again, in my opinion it was open to find to the effect that targeted questioning of Mr Doherty would have disclosed his problems. However, I do note that the primary judge did not explicitly find that Mr Doherty would never in fact have returned to crime scene work, or that PTSD would not in any event have developed at some other time or in some other way than it did; and this has some relevance to grounds 10 and 12. 83In my opinion, it was open to the primary judge to find that, but for breaches in 2004, Mr Doherty would not have been certified as fit for full operational duties in November 2004, that he would not then have been exposed to traumatic events in 2005, and that he would still then have had capacity for some employment within the police force. However, it seems that the primary judge did not quantify the extent of this capacity, and this too has some possible relevance to grounds 10 and 12. 84In my opinion, it is not an answer to these findings that Mr Doherty's own contributory negligence contributed in a "but for" sense to his own injuries; nor in my opinion can it be said in terms of s 5D(1)(b) that Mr Doherty's own contribution was such that SNSW's liability should not extend to Mr Doherty's injuries. The effect of Mr Doherty's contributory negligence is appropriately dealt with by apportionment. 85In my opinion, it was open to the primary judge to find that the negligence of SNSW was, in terms of s 5D(1)(a), a necessary condition for the occurrence of Mr Doherty's injuries, as they occurred after about April 2001, by which time the Lette and Mutton recommendations of May 1999 should have been put into effect, and the under-reporting comment should have been followed up. 86Accordingly, grounds 4, 9 and 11 fail.

Contested medical evidence 87Mr Menzies submitted that the primary judge erred in pars [249] - [251] of his judgment (set out at [52] above). His written submissions continue: 37. Paragraphs 249 to 251 of his Honour's judgment reveal error. His Honour confused 2 concepts: entrenchment and treatment responder/non-responder. The former concept is concerned with the disorder becoming more difficult to treat because of repeated traumatic exposures, whilst the latter merely describes two broad classes of persons who have the disorder, dividing them between whether they are amenable to treatment or not. 38. The fact that the Respondent was a treatment responder says nothing about whether delay in treatment will affect outcome. Professor Tennant's point was that if one is a treatment responder then, although repeated traumatic exposures would result in chronicity, once treatment is instituted, the outcome would be the same regardless of when the treatment was instituted. Delay in treatment does not affect the ultimate outcome. 39. Professor McFarlane's view, on the other hand, was that repeated exposures would result in a chronic disorder which would be entrenched by repeated exposures. 40. Professor Tennant took no issue with the concept of chronicity, his departure from Professor McFarlane's view related to whether the degree of that chronicity affected later treatment. He said it did not. 41. The resolution of that dilemma (that is, whether repeated exposure resulted in entrenchment) was necessary to answer the question posed by his Honour, namely, did repeated exposures affect the ultimate outcome. His Honour declined to resolve that issue, but without resolution of that he proceeded to conclude that repeated exposures would affect the outcome adversely to the Respondent's health. That was simply wrong and was not open to him without the earlier resolution of that question. 88The disagreement between Professor McFarlane and Professor Tennant can be illustrated by the following material. 89In his evidence in chief, following the passage quoted by the primary judge at par [244] of his judgment (par [52] above), Professor McFarlane said this (1 Black 261P-W): Perhaps if I can just explain one aspect of that. A critical component of post traumatic stress disorder is that people get a conditioned stress response to certain qualities or reminders or characteristics of crime scenes. And as with any form of learning, the more frequent that learning is reinforced, the stronger that link becomes and the more difficult it is to extinguish or unlearn that association. For example, it might be the smell of decaying bodies; it might be the sight of terribly mutilated bodies that will be associated with a fear response and that becomes increasingly entrenched. Normally people can suppress those responses, just as one does in medicine when dealing with patients. Normally our fear responses don't get evoked, but if they do get released they can progressively get strengthened and perpetuated and that is the risk for Mr Doherty when he returns to crime scene work, that this learned association is further strengthened and once it reaches a certain level, it is difficult to extinguish that learning. 90In cross-examination, Professor McFarlane said this (1 Black 336T-337D): Q. Yes. Let it be assumed he has been treated, he goes back to work, he then at some point becomes ill again, the proposition I am putting to you is that - and you have already disagreed with this - I am not putting this proposition again but proceeding from the proposition that further exposure did not cause his problem to be worsened although it may have caused it to recur, what I am suggesting to you is the fact that there was a further exposure and a delay in treatment as a consequence, had the effect - had a deleterious effect upon his symptoms at the time only until treatment reassumed? A. I don't accept that, your Honour, because I believe that if, as we were discussing yesterday, the issues of the underlying mechanisms of this condition, it reinforced the association between his symptoms and the memories and the environment that triggered those symptoms. I mean, it's a basic principle of learning, the longer you practice the piano the better you get at it. You know, the longer you are exposed to this workplace, the more entrenched your symptoms become and the link between your symptoms and those memories is strengthened. 91Professor Tennant, on the other hand, clearly asserted (1) that the duration of pre-treatment PTSD does not affect post-treatment clinical outcome (2 Blue 772M, 773T, 786Y, 787F and 787N, 3 Blue 1242X, 1 Black 416S, 417G-R). Less clearly, he asserted (2) that even when delay is coupled with exposure to further traumatic events, this does not affect post-clinical treatment outcome (2 Blue 789I-N, 1 Black 416Q-S). 92However, Professor Tennant also said: (1) "It is however accepted that if stressors continue through the treatment phase, or after, there may be an adverse effect": 2 Blue 789O. (2) "Multiple acute traumas further increase the risk of PTSD onset or a failure for existing PTSD to resolve": 3 Blue 1242T. (3) "if you have developed symptoms and you are re-exposed over time to more and more traumatic events, those initial symptoms won't recover. They are likely to get worse and become chronic": 1 Black 416O-P. (4) "chronic ongoing stressors ... is likely to perpetuate and make people more chronic": 1 Black 418H. (5) "if you continue stressing them while treatment is going on, that's not going to work": 1 Black 418M. 93It is not clear whether Professor Tennant is claiming that there are no degrees of seriousness or chronicity of PTSD; or that even though there are such degrees, they make no difference to post-treatment outcomes. The former view would appear to contradict his references to symptoms getting worse and people becoming more chronic. The latter view seems highly counter-intuitive. 94The primary judge at least by implication resolved the disagreement between Professor McFarlane and Professor Tennant concerning the second proposition apparently asserted by Professor Tennant. His findings at pars [245] and [246] implicitly adopt Professor McFarlane's views. Although in par [249] and [250], the primary judge seems to suggest he had not resolved the question, in par [251] the primary judge seems only to address Professor Tennant's first proposition, namely that delay in treatment does not affect outcome; and certainly any disagreement about that proposition was not necessary for the primary judge to resolve, because what was involved in this case was not only delay but also, and more importantly, exposure to further traumatic scenes. 95It could be that the primary judge's reasons here are less than fully satisfactory; but, having regard to the primary judge's implicit preference for Professor McFarlane on the crucial issue, and the counter-intuitive character of Professor Tennant's view on that crucial issue, in my opinion this is not a matter that could be considered as causing a miscarriage of justice that would justify a new trial.

Uncaused damages 96I note that although ground 10 is expressed in broad terms, in written submissions SNSW stated that it stands or falls on the correctness of grounds 6 and 7. That position was not changed in oral submissions; and accordingly, although for reasons I will give that ground may have had some success, it need not be considered further. 97Ground 12 refers to the primary judge's rejection at par [287] of his judgment of the contention that damages should be discounted because of the possibility that Mr Doherty's condition would or may have occurred in any event, and to the primary judge's limitation of the discount for vicissitudes in relation to future economic loss to the conventional figure of 15 percent. 98Mr Menzies submitted that, in the light of Mr Doherty's underlying injury which was in existence since 1994, and the nature of which is that it waxes and wanes, the primary judge should have allowed 30 percent for vicissitudes rather than the conventional 15 percent. 99Mr Doherty SC, senior counsel for the respondent Mr Doherty, submitted that there was no evidence that would overcome the evidentiary onus on SNSW to lead evidence to disentangle causes of Mr Doherty's condition: Watts v Rake (1960) 108 CLR 158, Purkess v Crittenden (1965) 114 CLR 164. The primary judge had found that, but for SNSW's breaches, he would have been able to keep working in the police force and been the same as the rest of us. Mr Doherty SC submitted that the considerations addressed in Malec v JC Hutton Pty Limited (1990) 169 CLR 638 had no application. 100As noted in par [81] above, the finding of the primary judge as to the consequences of pre-2003 breaches was to the effect that Mr Doherty would not have been further exposed to traumatic scenes without having psychological treatment and monitoring; and as noted in par [82] above, the primary judge made no finding that Mr Doherty would never in fact have returned to crime scene work but for the 2003 breaches. Prime facie therefore, the primary judge did not by those findings absolutely exclude the possibility that, even if SNSW had not committed those breaches, there would have been further exposure that may have triggered PTSD. 101As noted in par [83], the finding of the primary judge as to the effect of the 2004 breaches did not quantify the extent of the capacity Mr Doherty would have had if those particular breaches had not occurred. 102Plainly, the effect of the primary judge's findings was that, on the balance of probabilities, PTSD as suffered by Mr Doherty and his consequent disabilities were caused by the negligence of SNSW; and although that to some extent involves a finding on the balance of probabilities of a hypothetical fact, namely that Mr Doherty would not have suffered PTSD substantially as he actually did, but for that negligence, those findings must be considered matters of certainty, once they have been made: cf Malec at 642-643, Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 at [136] per Keifel J (Hayne and Bell JJ and Crennan J agreeing). However, although the existence of damage must be established on the balance of probabilities and then treated as certain, these passages show that the assessment of the amount of that damage may have regard to probabilities of varying degrees. 103I accept that the primary judge's finding precludes consideration of probabilities that Mr Doherty may in any event have suffered entrenched PTSD at substantially the same time and in substantially the same way as he actually did. However, in my opinion the findings of the primary judge do not preclude regard being had to probabilities, including probabilities of a low order, that Mr Doherty's long history of psychological damage beginning in 1994, coupled with his determination to keep working and to conceal his symptoms, may have had the result that, even if SNSW had not breached its duty, he may have come to suffer ongoing and disabling PTSD at some time and/or with some causal history substantially different from his actual onset of entrenched PTSD. 104I do not think this is a case where SNSW failed to discharge an evidentiary onus, as in Watts or Purkess . I think the whole of the evidence in the case shows the development in Mr Doherty from 1994 onwards of a severe vulnerability to PTSD, independently of any breach by SNSW of its duties; and it also shows substantial difficulties and uncertainties in the diagnosis, treatment and prognosis of PTSD, particularly in the case of a person determined to keep on working and to conceal symptoms. The ultimate onus is on Mr Doherty to prove the amount of his damages; and in my opinion there are uncertainties concerning what would have happened, even if SNSW had fulfilled its duties, which at the very least justify a significant increase in vicissitudes in the calculation of future economic loss. 105It may be that these considerations would also have justified some discounts of other elements of Mr Doherty's damages; but that was not sought by SNSW. In my opinion it is appropriate to increase the discount for vicissitudes to 30 percent as sought by SNSW.

Contributory negligence 106On the cross-appeal, it was submitted for Mr Doherty that the primary judge erred in finding (par [269]) that Mr Doherty gave information to Dr Li that was intentionally untrue, in circumstances where it had not been put to Mr Doherty that what he told Dr Li was untrue, much less intentionally so. 107Other submissions for Mr Doherty were to the effect that he did give substantial information to Dr Harvey and to Ms Bloom, and that he could not have been expected to arrange for his own testing by a police psychologist; that any lack of information given to these and other people was due to inadvertence or lack of appreciation of his own condition; and that in any event, the information which he did give was sufficient to alert SNSW to the need to take appropriate action. 108It was also submitted that SNSW had statutory duties under the OHS Act and OHS Reg; and that SNSW should have taken into account the well known culture of police not to report and/or to under-report psychological problems. 109It was submitted that Mr Doherty did not contribute to many of the breaches by SNSW; and that he should not have been found guilty of contributory negligence. 110For SNSW, it was submitted that Mr Doherty, by his own conduct, created a risk of psychological injury which would have been avoided if he had been frank with those trying to assist him. 111In my opinion, the primary judge should not have made a finding that Mr Doherty gave information to Dr Li that was intentionally untrue, when this had not been put to him in cross-examination. 112As regards the OHS Act and OHS Reg, in my opinion this makes no relevant difference to assessment of contributory negligence. OHS Reg 11 requires an employer to eliminate or control risks, the latter requirement being relevant here. Reg 5 provides relevantly that an obligation to control a risk is an obligation to minimise the risk "to the lowest level reasonably practicable". The finding of negligence in this case amounts to a finding that SNSW did not do this; but I do not think this different definition of the obligations of SNSW materially affects assessment of the degree of its responsibility for Mr Doherty's damages, either in terms of degree of fault or causal efficacy. 113Other matters raised by both sides were in my view adequately dealt with in the judgment of the primary judge, and no error is shown in the way he did so. 114As regards the finding that Mr Doherty gave information to Dr Li that was intentionally untrue, I am not satisfied that this played such a role in the primary judge's assessment of contribution as to vitiate his decision. In any event, I consider the primary judge's assessment a reasonable one. 115I would reject ground 5 of the grounds of appeal, and I would dismiss Mr Doherty's cross-appeal.

Conclusion 116The figure of $599,449 arrived at for future economic loss and $74,055.35 arrived at for future superannuation benefits represent 85 percent of certain calculated figures; and in my judgment a reduction should be made so that these items represent 70 per cent of those figures. This is achieved by multiplying them by the fraction 70/85, giving figures of $493,663.88 and $60,986.76 respectively. 117This has the effect of reducing the damages before reduction for contributory negligence by ($599,449 plus $74,055.35) minus ($493,663.88 plus $60,986.76), that is, by $118,853.71. This gives reduced damages of $1,040,749.15; and reducing that by 35 percent for contributory negligence, one arrives at a figure for judgment of $676,486.91. 118This result gives some success on the appeal for the State of New South Wales. However, on the main issues raised, SNSW failed; and the ground on which it succeeded was raised only in an amended notice of appeal notified shortly before the hearing. 119In my opinion, the appropriate order as to costs is that each party pay its own costs of the appeal and cross-appeal. 120Accordingly, the orders I propose are: (1) Appeal allowed in part. (2) Verdict and judgment for Mr Doherty for $676,486.91 substituted for the verdict and judgment below, to take effect from 20 May 2010. (3) Appeal otherwise dismissed. (4) Cross-appeal dismissed. (5) Each party to pay its own costs of the appeal and cross-appeal, Mr Doherty to have a certificate under the Suitors' Fund Act 1951 in respect of his own costs of the appeal. 121WHEALY JA: I agree with Hodgson JA. 122HANDLEY AJA: I agree with Hodgson JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2011