Thomas Flatley v SAS Trustee Corporation

Industrial Relations Commission (NSW)|2004-06-21|Before: Schmidt J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Thomas Flatley v SAS Trustee Corporation [2004] NSWIRComm 171 APPLICANT: Thomas Flatley PARTIES : RESPONDENT: SAS Trustee Corporation FILE NUMBER: IRC 3071 of 2003 CORAM: Schmidt J CATCHWORDS : Police - superannuation appeal - whether or not appellant suffered from post traumatic stress disorder - whether post traumatic stress disorder contributed to incapacity to work - competing medical views - onus met - orders sought granted - costs LEGISLATION CITED : Superannuation Act 1996 SAS Trustee Corporation v Daykin [2002] NSWIRComm 124 CASES CITED : Stankowski v Commonwealth of Australia [2004] NSWSC 198 State of New South Wales v Seedsman [2002] NSWCA 119 Woodlands v SAS Trustee Corporation [2001] NSWIRComm 232 HEARING DATES: 04/14/2004; 04/15/2004; 04/16/2004 DATE OF JUDGMENT: 06/21/2004

APPLICANT: Mr MJ Walsh of counsel SOLICITORS: Oates & Smith

LEGAL REPRESENTATIVES: RESPONDENT: Mr T Ower of counsel SOLICITOR: Mr B Matthews SAS Trustee Corporation

JUDGMENT: - 44 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

THOMAS FLATLEY v SAS TRUSTEE CORPORATION Application by Thomas Flatley to appeal against the decision of the SAS Trustee Corporation given on 5 May 2003

1 These proceedings were brought pursuant to s66 of the Superannuation Administration Act 1996 ('the Act'). The appellant appeals from a decision of the Police Superannuation Advisory Committee ('the PSAC') of 28 February 2002. The appellant had been issued with a certificate specifying that he was incapable, due to the incapacity of major depressive illness of discharging the PSAC's duties of his office.

2 On 6 March 2003, the respondent advised the appellant of that decision. The appellant disputed the decision. On 5 May 2003, the respondent advised that on 2 May, its Disputes Committee had determined the dispute between the appellant and the PSAC by confirming the PSAC's decision. The respondent also advised the appellant of his rights of appeal under s88 of the Act.

3 There were two issues lying between the parties at the hearing. Firstly, whether or not the appellant suffered from post traumatic stress disorder and secondly, if he did, whether it contributed to his incapacity to work. There was no issue that his major depression had made him so incapable.

4 The appellant gave both affidavit and oral evidence. Evidence was also called from Dr Altman, Dr Strum and Inspector Bell.

5 The appellant first joined the Police Service in 1973 at age 31. In 1974, he was required to climb down to a badly battered body at the base of cliffs at Manly. In the following years he attended other gruesome incidents and had to deal with seriously injured individuals and deceased persons. He coped with these events overall, but felt revulsion and horror about what he observed on such occasions.

6 In 1984, he was assaulted by a group of drunken young males while on duty at the Rocks. He sustained various injuries for which he was treated at Sydney Hospital and found the incident frightening. He was later reluctant to approach groups of young men, being fearful of the potential threat of violence.

7 In 1989, he attended the naval base at Mosman where a young sailor's head had been decapitated by a lift. Photos of the incident were in evidence. The appellant twice had to climb into the lift shaft. Once to retrieve the head, which he then had to deal with and again, to search for teeth. The appellant suffered various consequences, including headaches and recurrent dreams which would wake him up. The nightmares have become less frequent but continue. Most days he experiences flashes of aspects of the scene. He saw his General Practitioner, Dr McPherson at the time.

8 The appellant explained in his oral evidence that when he first came onto the scene at the naval base, he froze. He was incapable of doing anything for a while, until he composed himself. Dealing with the body made him sick and gave him an eerie feeling. Driving home afterwards he felt lost. He saw a body lying in the street, stopped and approached and stood frozen by the thought of having to deal with another body. He shook the person, who turned out to be a sleeping drunk, who staggered off. He felt great relief and went home to bed, to later be woken by a dream of the incident. Such dreams continued afterwards, at least once a week, until they tapered off over time, but still continued. The dreams are frightening and wake the appellant up. They leave him feeling drained, it taking about an hour for him to return to sleep. He also experienced flashes of the incident during the day. The thought of it never leaves him. The appellant could not cope with looking at the photos of the incident, he felt terrible inside and weak.

9 The appellant was unable to discuss these experiences at work, given the reaction of other officers.

10 In 1990, the appellant attended a domestic incident involving two neighbours in Mosman. A person was arrested and charged. That person, a lawyer, later lodged complaints about the appellant to the Commissioner of Police, Internal Affairs, the Ombudsman, his local MP and ICAC. These and later complaints, numbering about ten in total, were the subject of various investigations over the next five years, each of which resulted in no adverse findings or any action being taken against the appellant. Allegations made included that the appellant was involved in a car stealing racket and that he had forged documents. The appellant described the ongoing worry these complaints caused he and his family.

11 In 1997, the appellant attended a scene where a badly slashed body was found at the base of a cliff. It was a suicide. The appellant described the horror he felt at the state of the dismembered body and how he felt when he had to advise the family of the deceased man as to what had occurred and to accompany a family member to the morgue when the body was identified. When the appellant thinks about the body or other such events in which he was involved in the course of his duties, he loses control over his emotions and cries. He also continues to have nightmares about this event, as well as flashes and visions during his waking hours.

12 In oral evidence the appellant explained that when speaking to the family of the deceased he broke down, had to leave the room and cried. He continued after composing himself, but felt drained and weak. He was in shock at the morgue. He discussed the incident with only one other officer afterwards and was not offered, nor sought, any counselling. He bottled his feelings up, but began experiencing flashes of this incident, which triggered flashes of the earlier one. They continue, leaving the appellant feeling empty and away. He was later unable to approach the edge of a cliff.

13 It was this event which caused the appellant to begin feeling a lack of confidence in his ability as a police officer. He began to have difficulties carrying out his police duties.

14 On 24 March 1999, he sustained an injury to his left knee, when his leg got stuck when entering a police vehicle between the steering wheel and the floor, because the driver's seat had been moved too far forward. He felt severe pain in his knee, but was able to drive. He saw Dr MacPherson and was referred to a physiotherapist. He made a hurt on duty claim. He was off work from 26 to 31 March and later had a number of flare ups, which necessitated further time off. His knee continues to give him pain. This injury also affected his confidence in his abilities.

15 During 1999, the appellant was troubled with thoughts of the decapitation and suicide earlier mentioned and felt vulnerable, because of his knee injury. He feared having to deal with other gruesome incidents, but as his work was largely supervisory and administrative, was much sheltered from front line duties and did what he could to avoid involvement in them, or discussion of them, at work.

16 In oral evidence the appellant said that while he felt at the time that he was still performing his duties okay, it later became apparent that he was not. He was reluctant and careful in how he dealt with members of the public, conscious that many complaints were made against police officers and because he had become fearful of being the subject of further complaints. His supervisory duties as a Sergeant largely sheltered him from having to deal with gruesome events, such as he had earlier experienced. He felt that he would not have been able to cope with such work, if it arose. He expected that if he had to attend to such an event, that he would break down. He could not even listen if other police officers discussed such events. He had to walk away. It also became apparent to him that his perception of his ability to concentrate was wrong.

17 He had been a reader in the past, but in 1998 and 1999, he found that he could not read a book, because he lost concentration after even a paragraph. Things became very tense at home, with arguments and his marriage became stretched. He walked out once and stopped going to church, because "I've dropped down in my faith'. He did not feel right and did not want to make mistakes in front of young police officers.

18 Later in 1999 the appellant was subpoenaed to give evidence in civil proceedings between the solicitor who had made complaints about him between 1990 and 1995 and that man's neighbour. The appellant became very anxious, fearing that if required to give such evidence, it would only lead to further complaints being pursued against him by the solicitor. He took a number of steps which resulted in him not being required to give that evidence.

19 Around this time police prosecutors began making complaints that the appellant was not doing his job properly. When errors in his work were first drawn to his attention, he did his best, but still kept making errors. He found his mistakes inexplicable and could not account for what was happening.

20 On Saturday 20 November, the appellant was rostered as Supervisor for the shift at Mona Vale Police Station, but because the station was short staffed, was also performing the duties of custody officer. It was a busy day and at one stage, two prisoners were brought in and the situation was rowdy. The appellant feared that he might be confronted physically and that his safety might be at risk. Inspector Bell also spoke to him again about his work performance. He became anxious and tense, feeling that he could not continue. After that day, he did not attend work again.

21 On 6 December, the appellant spoke to a Police Service welfare officer. He was referred to a psychologist, Dr Kennedy and saw her on three occasions. Dr MacPherson also referred him to a psychiatrist, Dr Altman, who he first saw in April 2000. Dr Altman saw the appellant on five further occasions up to August 2000 and prescribed Prozac, which led to side effects which the appellant was unable to tolerate. In oral evidence the appellant explained that he told Dr Altman about all of his difficulties and was truthful in what he told him and the other doctors who he later saw.

22 The appellant felt unable to return to work, as he did not feel able to perform his job. Intruding thoughts of the deaths he had witnessed and fears of complaints being made against him continued. He largely confined himself to his home. He later tried to resume his former golfing activities, but found himself unable to do so. He kept no social company and was eventually medically discharged in March 2003, aged 60.

23 The appellant's nightmares still continue now, though less frequently than immediately after the events. They now occur about once a month. In oral evidence he described the nature of the dream and how he wakes when he dreams that he has hit the ground in the lift shaft. He wakes with a start, perspiring. Fleeting visions still occur most days and he has a sense of sadness and helplessness, although in cross examination the appellant explained that this was really intrusive thoughts, which he described as flashbacks.

24 There were numerous medical reports in evidence. The various accounts given in those reports of the appellant's experiences and symptoms, differed in a number of respects to the evidence which the appellant gave in these proceedings. The appellant's affidavit evidence also differed somewhat from that given orally and his evidence in cross examination.

25 For example, while referred to in some reports, it emerged in his oral evidence that in October 1999 the appellant had been subpoenaed to give evidence in the civil proceedings against the complainant in October 1999. This caused him great anxiety. He feared that it would generate further unwarranted complaints about him. He resisted giving evidence at the trial scheduled for 15 October. On 14 October, he learned that he would not be required.

26 In this period a series of complaints about poor work performance emerged. The complaints emanated from police prosecutors, the appellant having not included relevant material in Court briefs. These matters were raised with him by his superiors.

27 His last day of work was 20 November. The station was short staffed. He was rostered for a 12 hour shift. He was informed of a further complaint which had been made about his work. He did not attend work the next day and refused to see his supervisor, who approached him about his absence. It was on 9 December that the appellant was referred to Ms Kennedy by the Police Services' Welfare officer, Ms Turnbull.

28 In cross examination, the appellant confirmed that he had not sought treatment from a psychiatrist for the flashbacks for which he suffered, before ceasing work in 1999, although he continued seeing his general practitioner. He took no time off in relation to that problem or the incidents which caused them. His duties were largely supervisory and indoors and he believed he was performing them adequately, until he began making mistakes in 1999, of which he was not even aware.

29 The appellant was also cross examined as to what he told various doctors. He could not remember all that he had been asked and did not understand some of the terms used in the doctor's reports. He agreed that he told Dr Kaplan, a consultant psychiatrist, that the most upsetting thing which had happened to him was the complaints which were made. He agreed that he was not as jumpy than as he was before, but explained that he felt removed from the events surrounding him, staying at home and not getting involved.

30 He also agreed that he told Dr Dyball, a consultant psychiatrist, that the major issue, from a psychological point of view, was the complaints made against him and the service of the subpoena, which he described as the final straw. He did not however, agree that the majority of his discussion with Dr Altman were about the complaints. He agreed that he had thought about them every day since 1989. He could not say that it was this which had made him unable to perform his duties. He thought it was probably all of his problems. He believed that the mistakes which manifested in 1999 had started before he was served with the subpoena. He was unsure whether Inspector Bell first spoke to him before or after the subpoena was served. He agreed, however, that he told Dr Wright, a consultant psychiatrist, that he was extremely distressed as a result, coming close to tears and avoiding people at work. He made more mistakes at work and lost interest in activities he normally enjoyed. It was this which tipped the balance and made him unable to continue.

31 Ms Kennedy saw the appellant on 8, 10 and 17 December. She gave the Police Service a report in January 2000. She noted that 'his main complaint is an inability to cope psychologically with the work expected of him in the course of normal duties as a police officer.' She noted the contributing factors to be the volume and nature of the work, with few staff and little back up to manage sudden and unpredictable workload increases, plus demands from the public.

32 Ms Kennedy referred to the assault of the appellant in the late 1980s, and the incident at the naval base, which had resulted in nightmares. She observed that 'Mr Flatley is able to recount the accident scene in detail and show and discuss the photos of the scene and the body without distress. He considers such matters are likely to drop into a police officer's lap at any time. He has used the police photos of the accident scene to brief young officers working under him. The accident still intrudes upon his dreams 1-2 times per year'.

33 Ms Kennedy noted the series of unsubstantiated complaints made against the appellant and his feelings of victimisation. She also noted the suicide at Mona Vale, which triggered a 'temporary decompensation'. She noted that the appellant had appeared to cope reasonably well until October 1999, when he was subpoenaed to give evidence in the case brought against the complainant. She noted that, 'This reactivated and intensified his sense of vulnerability to complaints and appears to have triggered his current anxiety. The workload of 20/11/99, of which he has provided me with a written account, has clearly triggered another acute stress reaction and he has been off work since that time'. Ms Kennedy concluded that the appellant had become conditioned to respond with anxiety to complaints, which had resulted in anxiety and vigilance. He had been programmed to pick up signals of possible trouble and was now highly sensitised. Work stresses were too much for him in this state.

34 In February 2000, Dr Philip Kemp, Police Medical officer, advised Ms Turnbull that he had seen the appellant and that Mr Flately did not satisfy a diagnosis of 'Acute Stress Disorder' and '[t]here is not enough evidence to diagnose Depression as a psychiatric illness'. He expected the appellant to be fit to return to work within a few weeks. I note that this opinion was at odds with that of all other the doctors.

35 In April 2000, the Police Service Workers Compensation Claims Coordinator sought information from those to whom the appellant reported, in relation to the hurt on duty claim made by the appellant. Advice was sought as to the 'main issue' just prior to the appellant reporting off duty and the circumstances of his 'performance and demeanour' prior to reporting off duty. A response was provided by Inspector Bell, who noted that in his view, the main issue was the necessity for him to counsel the appellant about inadequate work performance, after four complaints from police prosecutors. The appellant was one of a number of Command Staff identified and spoken to about this problem. Inspector Bell noted the appellant's inability to offer any explanation for his failure to follow the applicable procedures he had earlier been counselled about and his concern as to how this would reflect upon his high standard of work and reputation.

36 Inspector Bell also provided a statement outlining what had transpired on the appellant's last day at work and how he had reported off duty on work related sick report with stress, the following day. In cross examination, Inspector Bell said that he had received a file about the matters raised by the Police prosecutors in relation to the appellant's work, in mid to late October. They concerned matters which had arisen before that time. Inspector Bell had to deal with similar concerns raised in relation to a number of other supervisors apart from the appellant. He did not believe that anything he had said to the appellant that day had caused him to take sick leave, given the minor nature of the matters involved. No one else whom he had counselled about these matters took sick leave. He agreed that it was a busy Saturday and that the station was short staffed, but he had satisfied himself that the appellant was coping with the resources at hand that day.

37 In August 2000, Ms Kennedy gave another report to the appellant's solicitors. She described his major complaints when she saw him and his history. Her clinical findings and diagnosis were: Clinical findings : Assessment consisted of interview, Beck Depression Inventory and Speilberger State-Trait Inventory. He also completed a PTSD structured interview (unvalidated). Results indicate he is on the cut-off point between borderline and moderate clinical depression, and anxiety levels were significantly elevated. There was nothing to indicate that he was in any way irrational or misperceiving events. His condition appeared directly work-related.

Diagnosis : From the psychological point of view, he has been in a situation over the past 9 years where anxiety has been conditioned. With respect to the Mosman complainant there has been intermittent reinforcement (complaints) of a conditioned response (anxiety about complaints). This has resulted in further anxiety and vigilance. Essentially he has been programmed to pick up signals of possible signals of trouble and is now highly sensitised. Current work stresses are simply too much for him in this state.

38 The appellant saw Dr Altman, consultant psychiatrist, for treatment on six occasions, in April, May, June, July and August 2000. In cross examination, the appellant explained that he stopped seeing Dr Altman because he could not afford his fees. The appellant was again seen by Dr Altman at his lawyer's request in 2003.

39 In a report to the appellant's solicitors in October 2000, Dr Altman advised of his diagnosis that the appellant had suffered from a severe chronic Post-traumatic Stress Disorder (with associated Major Depression). This had resulted from 'a number of traumatic incidents that Mr Flately was exposed to' during the course of his service and was aggravated by 'a subsequent stressful series of incidents with a lawyer'.

40 Dr Altman referred to the incident at the naval base, which had led to recurring nightmares, in which the appellant relived the incident and which disrupted his sleep. The appellant often thought about this incident when awake and it was foremost in his mind, when he heard of serious things in the police force. He found it hard to talk to other police officers afterwards and his wife had found him not as carefree. Dr Altman also referred to the Mona Vale suicide. The result was that thinking of this incident, brought the other to mind. The appellant was also unable to participate in normal police conversation, when the subject of death came up, he had to leave the room.

41 Dr Altman also referred to the assault and the appellant's fear for his life and his subsequent reluctance to approach groups. As to the solicitor's complaints, he noted that the result was that when subpoenaed in 1999 to go to court, he expected more complaints to be made. As a result he felt unable to deal effectively with his work, expecting these complaints. He began making mistakes at work, which resulted in work complaints about him. He felt unable to deal further with the public and took sick leave. Dr Altman noted that the appellant was then still taking Prozac.

42 In his evidence, Dr Altman explained his diagnosis of post traumatic stress disorder as: 1. He suffers from nightmares - "yes - I get nightmares one or two a month". The nightmares usually wake him and he stated that "I then find it hard to go back to sleep - I feel kind of uptight and afraid. I am usually perspiring". He stated that his wife is aware of these nightmares. He stated that the content of the nightmares is usually about "the headless body - the lift one". These nightmares began "about a year after I joined the police - I joined in 1973 - after the North Head one (episode)".

He has recurrent intrusive distressing thoughts about his traumatic experiences and in this regard he stated "I cannot forget them they are always there and they keep coming up - every day".

In terms of trying to avoid these distressing thoughts he stated "I cannot do much about them - if I try and get rid of them they are always there".

He becomes distressed when talking about these events and in this regard he stated "I get kind of moist - I feel edgy".

He generally feels detached from others - as if there is a barrier between him and others on occasions.

He suffers from sleep disturbance and in this regard he stated "I wake up at lease four or five times a night - every night".

He is generally hypervigilant and he stated for example when sitting in a room he will tend to sit "in a corner where I can see all entrances - the wife knows that".

43 The diagnosis for major depression was explained as: In addition to presenting with a work-related chronic Post-traumatic Stress Disorder, Mr Flatley presented with features indicative of a Major Depression. He presented with low mood, sleep disturbance, diminished energy, low libido, impaired concentrations, low confidence and motivation, he had stopped enjoying most activities to a large extent and he was making big issues out of relatively minor issues. There was no suicidal ideation.'

44 The appellant's evidence was put to Dr Altman. It did not affect his diagnosis. He noted that it included steps taken to avoid reminders of the events which had led to his post traumatic stress disorder. This was consistent with the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, ('DSM-IV') diagnostic criteria. Dr Altman also explained how he went about eliciting information which was relevant to his assessment of the presence or absence of such diagnostic criteria, as a part of his clinical assessment of patients. Dr Altman also explained that the appellant's ongoing dreams were consistent with his diagnosis of post traumatic stress disorder. They were not a symptom of a depressive illness.

45 Dr Altman explained that his major diagnosis was post traumatic stress disorder, with a co-morbid major depression. He believed the appellant was incapable of discharging his duties as a result, when he treated him in 2000. The position was unchanged when he saw him again in 2003.

46 Dr Altman also explained his view that a psychiatrist was able to make a more accurate assessment of a patient's condition, when having the opportunity to see the patient for more than a one hour consultation. This was so in the case of the appellant, given the complexity of his history. There was a lot of information to gather in a short time, as well as the other information relevant to the psychiatric assessment.

47 In cross examination, Dr Altman also explained that in his experience, a diagnosis of post traumatic stress disorder was quite often missed at general practitioner level. Referrals were often made using general terminology such as depression or stress at work. That was consistent with the reference he had received, in this case. He also explained that Prozac was an effective treatment for both depression and post traumatic stress disorder, which Dr Wright confirmed in his evidence.

48 In cross examination, Dr Altman also explained that when he saw the appellant in 2000, he had not reported suffering from any flashbacks, although he noted other symptoms which doctors who later examined the appellant had not noted. Dr Altman explained the difference between flashbacks, which were sudden onset vivid images, which make the person feel like they are reliving the event while they are awake and recurrent intrusive distressing thoughts rather the images. He explained that he had treated the appellant over six sessions in 2000 and had seen him again in 2003. He had not noted that the appellant was suffering from flashbacks, although it was a difficult symptom to elicit from someone. The absence of this symptom did not mean that the appellant was not suffering from post traumatic stress disorder. It was but one of five criteria in the DSM-IV, of which it was necessary to be suffering from three, for the diagnosis to be made. The appellant had all of the others in that category.

49 Dr Altman also explained that differences in symptoms taken by different doctors could have resulted from a number of factors, including the time spent with a patient; what the patient was asked or volunteered and how a doctor interpreted what was said. In his view, given the range of factors affecting the appellant and contributing to his conditions, it would be difficult to take a complete history and make a thorough diagnosis in an hour.

50 Dr Altman described the appellant as conscientious and a perfectionist. The fact that he remained at work up to 1999, in his view did not reflect that he was necessarily coping as well as he should be. It was often conscientious, meticulous people of integrity who got post traumatic stress disorder. The fact that the appellant had taken no sick days was not necessarily a sign that he was not sick, but a reflection of his nature, that he would not take a sick day, unless he was really extremely unwell.

51 Dr Altman was asked in cross examination to read the reports of other doctors who had not diagnosed post traumatic stress disorder. He observed in relation to the report of Dr Kaplan that the history taken differed from that which he took and that this did not necessarily reflect that the appellant had presented his history differently, but that it had been interpreted differently. In this respect, Dr Altman found it relevant that Dr Kaplan had also diagnosed a major depressive illness, as well as another disorder.

52 Dr Altman also noted that a diagnosis of major depression was not one which could be made together with a diagnosis of adjustment disorder, under the DSM-IV diagnostic criteria. He was therefore surprised that Dr Kaplan had diagnosed these two conditions, if indeed he had. He did not read Dr Kaplan's report as necessarily saying so. In Dr Altman's view, the appellant's symptoms did not fit a diagnosis of adjustment disorder, given the length of time that the symptoms had persisted and that factors which Dr Kaplan had relied upon to discount post traumatic stress disorder were in one case, flashbacks, not a symptom upon which his own diagnosis had rested. Another symptom identified, arousal, was a term which in Dr Altman's view had no obvious meaning, it could mean several things; no hyper-vigilance or jumpiness, which Dr Altman understood to mean exaggerated startle reaction. These were both symptoms which Dr Altman had found. No 'depersonalisation', to which Dr Kaplan also referred, was not a symptom of post traumatic stress disorder in any event. Dr Altman disagreed with this aspect of Dr Kaplan's diagnosis.

53 In re-examination, Dr Altman also explained that the length of time that the appellant's symptoms had persisted, made a diagnosis of adjustment disorder unlikely. Dr Kaplan appeared to suggest that the stressor in question was the complaints, but if that were so, if the disorder was adjustment disorder, the symptoms should have dissipated within six months of exposure to the stressor ceasing. That did not occur.

54 Dr Altman also disagreed that it was possible that the appellant was suffering from both post traumatic stress disorder and a major depressive illness, but that it was only the latter which had made it impossible for the appellant to work. In his view, the post traumatic stress disorder was of longstanding duration and while the appellant had coped with his work while suffering from the disorder, the events which had led to his major depressive condition had also exacerbated the post traumatic stress disorder, so that it, too, had led to his incapacity to work. The co-existence of a major depression with severe, well entrenched post traumatic stress disorder, was extremely high.

55 In Dr Altman's view, in the appellant's case it was the depression which was associated with the other illness, post traumatic stress disorder, which was the primary diagnosis. In his view, it was very difficult to try to work out when the depression started and when different criteria manifested. Such an assessment had to be done retrospectively; it was based on memory and with post traumatic stress disorder typically being a fluctuating disease, symptoms could be present, go away and return. Dr Altman found the exercise of identifying when particular symptoms began, difficult and in his view, one which was of little worth in diagnosis.

56 In cross examination, Dr Altman accepted that it was possible that the appellant had a major depressive illness and that the existence of post traumatic stress disorder could be discounted, because all of the elements of that disease were not there. That happened not infrequently in his experience. He was, nevertheless, satisfied that in this case, the appellant had a clear cut and well entrenched post traumatic stress disorder. He also accepted, however, that the disorder was an area of special interest for him; that he was attuned to seeing it and that it was an area of psychiatry where different practitioners had different views and perspectives.

57 Dr Altman further explained that people suffering from post traumatic stress disorder coped less well with stress generally. This made it more likely that the appellant would not have coped well with the stress generated by the complaints made against him. Persons suffering from post traumatic stress disorder often worried about making mistakes. It was not an unusual situation that a subsequent stressor, which itself could not lead to post traumatic stress disorder, aggravated that condition. Dr Altman also explained that in his own approach to diagnosis, he had looked for symptoms of depression, because psychiatrists generally checked for that condition, as well as suicide and other factors. Given the history of traumatic events recounted by the appellant, it was also sensible to ask him about the criteria for post traumatic stress disorder, especially when there is such a strong association of co-morbidity between that condition and depression. This was reflected in the approach outlined in his first report.

58 When cross examined as to there being no history of the appellant's inability to perform his duties prior to 1999, Dr Altman explained that there was evidence of avoidance behaviour before that time, such as not talking about traumatic events and feeling distressed if he had to. Dr Altman said: 'Sometimes you'll avoid it if you can and other times you can't, until sometimes eventually you avoid it completely. To answer your question, some avoidance behaviour. If he's working and he doesn't want to work anymore, that's avoidance'. Dr Altman viewed the stress which flowed from the complaints made against the appellant which led to his depressive condition, as having also caused his post traumatic stress disorder to deteriorate.

59 As to Dr Dyball's report, Dr Altman disagreed that he had spent the majority of his time with the appellant dealing with the consequences of the complaints. In the case of Dr Strum, Dr Altman noted that some of the symptoms of post traumatic stress disorder had been found, but the conclusion was that they were not incapacitating. He disagreed.

60 The appellant's general practitioner also provided the appellant's solicitor with a report in October 2000. He had treated the appellant since 1989. Dr MacPherson noted that he had seen the appellant in May that year, after the naval base incident, when the appellant was suffering from nightmares four to five times a month and headaches. He saw him in 1991, stressed by the complaints being made against him. Over the next five years the appellant complained of persistent nightmares and headaches. These were exacerbated by the Mona Vale incident. Dr MacPherson noted that the subpoena served in 1999 to give evidence in the civil proceedings 'compounded his stress levels to such an extent that he became morbidly depressed.'

61 In Dr Altman's opinion, given in cross examination, the general practitioner's report confirmed the existence of symptoms of post traumatic stress disorder, as early as 1989, continuing thereafter, consistent with the history he had taken from the appellant.

62 Dr Wright gave the appellant's solicitors a report in September 2000, having seen the appellant that day. The appellant had at that time been on sick leave since November 1999. Dr Wright recounted a history taken, which dated back to the lift incident at the Naval base, the suicide at Mona Vale and the resulting dreams. He also referred to the solicitor's complaints and the subpoena in 1999. He described the appellant as saying thereafter 'I became a wreck ... I made lots of mistakes at work ... I couldn't cope with it ... I couldn't talk about it ... I was close to tears at times, and avoided some people at work'. He also described other consequences.

63 Dr Wright also diagnosed post traumatic stress disorder, exacerbated by the complaints, which increased the appellant's distress and anxiety, causing his condition to flare up. He noted an improvement in the condition with medication and treatment and expected further gradual improvement, if the appellant was not required to return to work. He did not expect a complete resolution of the symptoms, given that they had been present for 10 years.

64 In November 2003, Dr Wright provided a further report, having seen the appellant again. He noted that the appellant remained unwell. He recounted the appellant's symptoms at that time, including bad dreams, intrusive thoughts up to six times a day, isolation from others, feelings of irritation and reduced concentration, energy levels and motivation which were affecting his marriage, amongst other symptoms. He had also suffered a mild stroke. Dr Wright concluded that the appellant still suffered residual symptoms of post traumatic stress disorder and major depression. He noted that 'These conditions often occur together, and both are likely to have arisen as a result of Mr Flately's work-related stresses previously described'. Dr Wright also answered various questions, which were not, however in evidence.

65 In his oral evidence, Dr Wright explained that in his view the DSM-IV criteria were important in clinical practice as well as research. They had evolved over several decades by the American Psychiatric Association and assisted in diagnosis, planning appropriate treatment and communicating information between practitioners. It helped codify conclusions and provided a reference point, from which differences of opinion could be discussed. Dr Wright also explained that, in his view, seeing an individual over a number of occasions over a period of time, gave greater validity to the opinions which a psychiatrist derived. Dr Wright disagreed that the appellant could have been suffering from a major depressive illness and an adjustment disorder at the same time. Such a diagnosis was inconsistent with the DSM-IV criteria.

66 In cross examination, Dr Wright explained that he did not agree with all aspects of the DSM-IV criteria. Some diagnoses were more controversial than others; for example dissociative identity disorder. He confirmed, however, that he was comfortable with his diagnosis in this case, having seen the appellant twice over, several years. He also agreed that sometimes a treating doctor got too close to a case and that a forensic psychiatrist could then bring his or her expertise to bear. That opinion could be more valid.

67 When Dr Wright first saw the appellant he had seen none of the other reports; although he was aware of Dr Altman's diagnosis and treatment. He agreed this would have influenced his opinion, by clarifying whether his own diagnosis was valid. The other reports were provided for his second review.

68 Dr Wright was cross examined about the presence of various symptoms of post traumatic stress disorder. He explained that some symptoms were symptoms of that disorder and depression and that it: '... is quite difficult to make a causal link call because it as clear to me that the period of, we will call it harassment, exacerbated his condition. Whether I can say that the depression was directly and only related to that harassment and not to the traumatic work experiences, that is not a conclusion that I can comfortably draw. It is possible that the depression and the PTSD both related to his work related exposure to trauma, but it was clear that those conditions, whether it be just the PTSD or PTSD and major depression, were worse as a result of that harassment experience.'

69 Dr Wright explained that when he saw the appellant again, clear symptoms of a depression persisted, as well as symptoms of post traumatic stress disorder. He did not expect the latter to resolve, given that withdrawal from potential exposure to recurrent events and anti-depressant medication were both treatments for that disorder. Dr Wright also explained that the appellant had endured his symptoms for a long time and had attempted, but failed, to continue normal life. His symptoms were fairly continuous in the early 90s and deteriorated in the late 90s. Post traumatic stress disorder impacted on a person's capacity to deal with every day stress. The re-emergence of the harassment stressors in 1990 contributed to the appellant's major depression and that two had a significant overlap in terms of disability impairment. In his experience, both disorders can impact on concentration and decision making capacity, which can affect work performance. He believed both disorders caused the appellant not to be able to work effectively any more. He thought it improbable that it was the depression alone which had this result in the appellant's case.

70 Dr Wright also found it insignificant that the appellant had not sought treatment before 1999. Dr Wright had treated a number of police officers suffering from both these conditions, who had been very reluctant to access treatment, despite having an awareness of the impact upon them. He said: The failure to take time off or access treatment doesn't mean it wasn't effecting him. I'm a bit uncomfortable about making an assumption that until a particular date, despite having those symptoms, it didn't impact on him.

Quite typically people who have having (sic) recurrent nightmares and are ruminating about traumatic incidents; firstly, the nightmares effecting their sleep; they have difficulty getting back to sleep, they are sleeping poorly, they are usually tired. If they are tired this is effecting their concentration and that effects their work performance. Ruminating about incidents, worrying about recurrent incidents also is distracting for people and can effect their concentration and work performance.

They don't necessarily make a connection between these things and what is happening with their work, but when it is brought to someone's attention that they have made mistakes, then sometimes people say that is when the problems began, when in effect the problems began quite some time before that. I'm just uncomfortable with that assuming that the lack of access to treatment or time off meant that he wasn't impaired.

71 In August 2001, Dr Kaplan provided a report to the SAS - Police Department, having seen both the appellant that day, as well as his wife and having been referred the reports of Dr MacGregor, Dr Altman and Dr Wright. Dr Kaplan was not required for cross examination. He too took a history of the incident at the naval base, the incident at Mona Vale, the problems with complaints between 1990 and 1995, with a change in mood and attitude after 1997 and his problems becoming worse in 1999. He described them as he being 'flat, apathetic, unmotivated, sleeping badly, preoccupied with his past problems, irritable, withdrawn and not attending properly to work. As a result he was making mistakes in his job which were noticed.' Dr Kaplan noted Dr Altman's diagnosis and treatment and the cessation of medication, as the result of negative side effects. He also noted that: Strongly associated with this is a sense of helplessness and failure because he is not working. He looked forward to working until he was at least 60 and did not "plan" for being at home like this. He has given up golf since he hurt his knee. He has little else to do except watch television sport. He has no difficulty seeing news programs with traumatic scenes.

Activities away from the house are limited to going out shopping and seeing his doctor every few months for renewal of certificates. He and his wife go out once a month with his brother-in-law for a meal. He is in contact with his daughter in Canberra, but the relationship is a little distant. He has no other social activities.

72 Dr Kaplan noted that the appellant was always thinking about his problems, but that his thoughts were dominated by the complaints and that he brooded about the naval base and Mona Vale incidents. He did not have flashbacks, he was not phobic, did not depersonalise or have hypervigilance, arousal or emotional numbing. Dr Kaplan's opinion was: This presentation is problematic. While there is no doubt that Sergeant Flatley experienced traumatic events which recur on a daily basis, this does not necessarily constitute PTSD. He is lacking the essential features of hypervigilance, jumpiness, exaggerated startle reflex, phobic avoidance of public situations, depersonalisation and emotional numbing. On that basis, his symptoms are, on the balance of probabilities, consistent with an Adjustment Disorder with anxiety, chronic".

An Adjustment Disorder is a condition which occurs in response to a known external stressor, settles with removal of the stressor, counselling and the passage of time. Adjustment Disorders may persist to become chronic, requiring medication or more intensive treatment. As a rule, an Adjustment Disorder can be regarded as a less severe form of PTSD but, in practice, the treatment approach is much the same.

The most significant feature of this presentation, however, his Sergeant Flatley's obvious depression. He has sleep disturbance with early morning wakening, possible diurnal mood swing, flatness of mood, loss of enjoyment of life, poor concentration and memory, possible psychomotor retardation and a tendency to brood on his problem. At interview he looked distressed and his wife believes he has not been happy for some years.

73 Dr Kaplan concluded that the appellant was partially and temporarily disabled and that with treatment, he would be able to return to police work 'even if on a restricted basis, away from operational duties.'

74 Dr Dyball gave a report to the SAS in January 2002, having then seen both the appellant and his wife. He was unavailable for cross examination. His history recounted that the appellant 'felt by far the major issue from a psychological point of view resulted from an arrest he made in 1989,' which led to the series complaints pursued against him. He noted the subpoena to give evidence in 1999, the appellant's distress and problems at work and his resulting medical attention and treatment. Dr Dyball noted that the appellant said, 'the majority of the discussion with Dr Altman centred on the problems he had with the barrister to whom I have referred'. Dr Altman disagreed entirely with this analysis in his cross examination.

75 Dr Dyball also noted the naval base and Mona Vale incidents, which like other serving policemen, the appellant had to cope with. He noted that the appellant did not dwell upon them in the same way as the problems which had flowed from the complaints.

76 Dr Dyball diagnosed a major depressive illness, with probable onset in 1995/1996 and gradually increasing severity. The illness did not respond to treatment and the appellant was psychiatrically unemployable anywhere and was incapable of discharging the duties of his office.

77 In January 2003, Dr Strum, consultant psychiatrist, also saw the appellant and provided a report. He had seen the reports of Ms Kennedy, Dr MacPherson, Dr Wright, Dr Altman, Dr Kaplan and Dr Dyball. He too took a history, noting that the appellant, like other policemen had suffered traumatic experiences which had left their mark upon him. He mentioned the naval incident, the Mona Vale incident and the complaints, without going into the detail recorded in other reports.

78 Dr Strum described the naval incident as not having resulted in depression, but upset, sleep disturbances, nightmares, no flashbacks, rumination and no avoidance behaviour, although in his oral evidence he accepted that there was some avoidance behaviour. The appellant had some difficulty feeling his emotions and was a bit distant and withdrawn. He took no time off work and sought no treatment. The effect of the Mona Vale incident was to bring back memories of the first incident, again with nightmares and ruminations but no flashbacks. He felt distant and aggressive with young policemen and withdrawn at home. There was no avoidance behaviour and again, no time off work and treatment.

79 Dr Strum described the complaints as leading to depression, annoyance, irritation, rumination, avoidance behaviour and a deterioration of the appellant's ability to work. The appellant became ill in November 1999; there were mistakes at work; his concentration was affected and depression resulted, as well as loss of motivation; some personality changes and his family wearing the brunt of crankiness. At the time of interview the appellant was still depressed, feeling negative, sleeping normally apart from the odd nightmare, thinking about various incidents which led to anxiety, but no palpitations, dyspnoea or sweating. His concentration was still affected. His wife reported some improvement.

80 Dr Strum noted the various reports and diagnosis and concluded: It is always difficult with police officers to equate the nature of the very traumatic experiences to which they have been subjected with the illness of Post-traumatic Stress Disorder. Of course, these incidences are stressful and quite often they do cause sleep disturbances, nightmares, flashbacks and ruminations, but in the case of Mr Flatley these have obviously not been severe enough to warrant treatment or to cause absences from work. Although he may have had some features which equate to acute stress disorders which have gone beyond the incidents he described, I do not believe that he was severely disabled and I do not believe that the diagnosis of Post-traumatic Stress Disorder can be sustained. Certainly, there was no evidence of it when I saw him, despite the occasional nightmares and ruminations.

81 In his oral evidence, Dr Strum explained that he found that the appellant was stressed by these events and that there were some symptoms of post traumatic stress disorder, but not enough to make that diagnosis, at the time the experiences occurred. Dr Strum found it particularly relevant that the appellant did not then take time off or seek treatment. He kept functioning. Dr Strum also explained the difficulty psychiatrists encountered in taking a history of symptoms and directly asking about what preceded the symptoms. Dr Strum explained that in his experience, incapacitation was an important feature of post traumatic stress disorder, although some people pushed on. The same could occur with depression.

82 Dr Strum noted the appellant's obsessional personality traits and how they helped and hindered his performance of police work. The complaints made against him had made him particularly vulnerable to a depressive illness and he concluded that the appellant suffered from elements of both Adjustment Disorder and Major Depression, rather than a diagnosis of Post-Traumatic Stress disorder. Dr Strum concluded with a diagnosis of Chronic Major Depression, which even with treatment would never make the appellant well enough to return to work. In his view, the cause of this depressive illness was the appellant's dealings with the complainant, which was 'part and parcel of his police work' and that he was hurt on duty.

83 Dr Strum was cross examined as to his diagnosis in the context of the applicable DSM-IV criteria, which indicated that a diagnosis of Depression and Adjustment Disorder would not be made together. He explained that he disagreed with the use made of these criteria in some cases. In his view, it was not 'a Bible of psychiatric diagnosis'. Psychiatrists must also use their training and experience when making a diagnosis. Dr Strum also explained that he disagreed with this aspect of the approach adopted in the DSM-IV criteria and that in his clinical experience, depression and adjustment disorder could sit together. In this respect, he agreed with Dr Kaplan's approach, but nevertheless strongly disagreed with Dr Kaplan's view that Adjustment Disorder was a lesser form of post traumatic stress disorder.

84 I note at this point, by way of contrast, Dr Altman and Dr Wright both agreed with the approach adopted to these matters in the DSM-IV criteria and were of the view that the diagnosis of a depressive illness, upon which all of the doctors agreed, precluded a diagnosis of adjustment disorder. In their opinion, the DSM-IV criteria had greater value than that which it had in Dr Strum's opinion. Nevertheless, they each agreed that the DSM-IV criteria were but a tool, utilised in a clinical setting where a doctor had to bring has clinical skills to bear.

85 In cross examination, Dr Strum explained that his diagnosis of adjustment disorder was as the result of a reaction to the complaint stressor, not the previous incidents at Mona Vale or the naval base.

86 In cross examination, Dr Strum was shown the photographs in evidence of the naval base incident and had the appellant's evidence put to him. His evidence in cross examination was: I agree that the photographs were horrendous. It is a difficult, very difficult situation for anyone to deal with. It is part of policing. It is one of the things that people in the Police Force do deal with. However, having said that, it is a subjective criteria and what affects him rather than what would be expected in general. Yes, it was a horrendous experience, I agree with that.

Q. Without wishing to interrupt the flow, could I ask you, you would agree in term of a stressor? A. It is a stressor.

Q. It is an extreme end though? A. Yes, it is pretty bad, pretty bad.

87 Dr Strum explained in cross examination that while the appellant had 'one or two' symptoms of post traumatic stress disorder, he did not suffer from that illness. In his opinion, illness existed when three things were present, change from the person's normal condition; loss of function and suffering, such as pain, anxiety or depression. He could not find the appellant clinically ill, prior to his depressive illness. In further cross examination, he noted that the appellant continued working, despite his unpleasant nightmares and avoidance behaviour and despite contracting a major depression in 1991 - 1995. It remained Dr Strum's opinion that it was the depressive illness in 1999 which caused his incapacity, although he accepted that it might have impacted upon the appellant's earlier symptoms and made them unbearable.

88 In December 2003, Dr Altman provided a further report, having seen the appellant again in August. He confirmed his earlier diagnosis; noted that the appellant was still suffering symptoms of both disorders and expressed the view that the appellant 'is totally and permanently unfit to do either full duties or light duties and that he is incapable of doing any (regular) work outside the Police Service as a result of the above mentioned work-related psychiatric disorders alone'.

89 In March 2004, Dr Strum saw the appellant and his wife again and provided a further report. Dr Strum revisited his earlier report and noted that the appellant believed that it was the complaints which had led to his depression. He noted that the appellant remained morose, not going out, withdrawn, cranky and fighting with his wife. There were personality changes. He had ongoing nightmares which stressed him and some ruminations. There were no flashbacks, increased startle response, panic attacks with palpitations, dysopnoea or sweating. The appellant slept reasonably but woke each night and was constantly dreaming about the naval base incident. Noises woke him, he was cranky, and kept to himself. He had short term memory problems, as well as some concentration problems. He could not read or watch television and had no motivation.

90 Dr Strum took the view that his earlier diagnosis was correct While the appellant had traumatic experiences, he had never lost time off work or required treatment. While he had some symptoms of post traumatic stress disorder, it was Dr Strum's opinion that he did not develop the full gamut of symptoms, which make up such a diagnosis.

91 The DSM-IV criteria for post traumatic stress disorder and adjustment disorder were: Diagnostic criteria for 309.81 Posttraumatic Stress Disorder

A. The person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others (2) the person's response involved intense fear, helplessness, or horror. Note : In children, this may be expressed instead by disorganized or agitated behaviour.

B. The traumatic event is persistently reexperienced in one (or more) of the following ways: (1) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. Note : In young children, repetitive play may occur in which themes or aspects of the trauma are expressed. (2) recurrent distressing dreams of the event. Note : In children, there may be frightening dreams without recognizable content. (3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). Note: In young children, trauma-specific reenactment may occur. (4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event (5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event

C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following: (1) efforts to avoid thoughts, feelings, or conversations associated with the trauma (2) efforts to avoid activities, places, or people that arouse recollections of the trauma (3) inability to recall an important aspect of the trauma (4) markedly diminished interest or participation in significant activities (5) feeling of detachment or estrangement from others (6) restricted range of affect (e.g., unable to have loving feelings) (7) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)

D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following: (1) difficulty falling or staying asleep (2) irritability or outbursts of anger (3) difficulty concentrating (4) hypervigiliance (5) exaggerated startle response

E. Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month.

F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

Specify if: Acute : if duration of symptoms is less than 3 months Chronic : if duration of symptoms is 3 months or more

Specify if: With Delayed Onset : if onset of symptoms is at least 6 months after the stressor

A. The development of emotional or behavioral symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).

B. These symptoms or behaviours are clinical significant as evidenced by either of the following: (1) marked distress that is in excess of what would be expected from exposure to the stressor.

(2) significant impairment in social or occupational (academic) functioning

C. The stress-related disturbance does not meet the criteria for another specific Axis I disorder and is not merely and exacerbation of a preexisting Axis I or Axis II disorder.

E. Once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional 6 months.

Specify if: Acute : if the disturbance lasts less than 6 months Chronic : if the disturbance lasts for 6 months or longer

Adjustment Disorders are coded based on the subtype, which is selected according to the predominant symptoms. The specific stressor(s) can be specified on Axis IV.

309.0 With Depressed Mood 309.24 With Anxiety 309.28 With Mixed Anxiety and Depressed Mood 309.3 With Disturbance of Conduct 309.4 With Mixed Disturbance of Emotions and Conduct 309.9 Unspecified

The parties' respective cases 92 Mr Ower of counsel for the respondent argued that the issues between the parties were narrow. Firstly, whether the appellant suffered from post traumatic stress disorder and if he did, whether it was causally connected with his undoubted inability to perform duties. In this respect, the test was that discussed by the Full Court in SAS Trustee Corporation v Daykin [2002] NSWIRComm 124 at [25]: What, then, is the position where an applicant has more than one condition which affects the capability to work? The answer lies in the words of the relevant sections, namely ss.8 and 10B. The member must be incapable, from infirmity of body or mind, from discharging the duties of the office (s.8). This does not require that the infirmity be attributable to a single condition; whether it is, or whether there are in existence other features which, taken together or separately, mean that the member has the necessary incapability, is a question of fact to be determined in each case.

93 It was submitted that if the opinions of Dr Strum, Dr Kaplan and Dr Dyball were preferred, the appeal must be dismissed. If the opinions of Dr Altman and Dr Wright were accepted, the second question arose for consideration.

94 Dr Altman's report and his cross examination treated both conditions he had diagnosed as being inextricably interlinked. The problem with that approach, it was submitted, was that the doctor had conceded that he was approaching the matter from his own interest in post traumatic stress disorder. As a result, he was attuned to finding the condition, which put into context his findings of the symptoms of the condition.

95 The evidence showed however, that the symptoms on which the diagnosis was based, were not sufficient to have incapacitated the appellant for the ten years that he had suffered from them. His incapacity arose in November 1999. It was relevant that the appellant had conceded that it was the depression which had then rendered him unfit for work. It followed that on any commonsense view of causation, the depression had resulted from the re-emergence of the problems with the complaints which had earlier been pursued against the appellant had created.

96 It was noted that there was great consistency in the history given by the appellant to all the doctors, which had led them all to diagnose a depressive condition. The evidence showed that in terms of incapacity, the intrusive thoughts about the earlier incidents which then re-emerged were not incapacitating. It was the depression which had resulted from the complaints which led to the incapacity and that was what Dr Altman treated the appellant. Prozac was prescribed and counselling given.

97 It was also relevant that Dr Altman had not considered when the depressive symptoms started. The evidence was consistent with symptoms of post traumatic stress disorder being present, but not disablingly so. Disablement did not result until another condition, depression, emerged. The respondent did not cavil with the horrific features of the incidents with which the appellant had to contend. There was no issue that they could have led to post traumatic stress disorder, but the evidence showed that they had not and even if they had, the condition had not led to incapacity. It was also relevant that it was common ground amongst the various doctors, that the complaints were not a kind of stressor which could have led to post traumatic stress disorder.

98 While it was the view of Dr Wright and Dr Altman that the depression which those complaints had led to, had aggravated the post traumatic stress disorder, it was submitted that the more balanced view was that there were two conditions and only one had led to incapacity.

99 Mr Walsh of counsel for the appellant explained that the primary submission was that the appellant suffered from post traumatic stress disorder and that consistently with the treatment which he had received from Dr Altman, it was that disorder of the mind which was the primary disorder and that depression was a related, but integral component of the mental illness from which the appellant suffered and which led to his incapacity.

100 As at the date of discharge, 7 March 2002, it was agreed that the appellant was incapable of discharging the duties of his office due to some psychiatric illness. The Court was forced to choose between the views which the various doctors presented. In that context, it was relevant that those called for the respondent conceded that there was something more present than a depressive illness. There was no contest as to the factual matters which gave rise to the illness. It was argued that assistance in a resolution of the issues lying between the parties would be provided by regard being paid to the front line of medical treatment provided by Dr MacPherson, who attested to the symptoms first reported to him by the appellant after the naval base incident in 1989 and subsequently. The hurt on duty claim made in 1999 further attested to the illness then suffered, although a patient with a psychiatric illness was not well placed to diagnose his own problems.

101 The reports of Ms Kennedy in early 2000 also attested to the presence of a co-morbid condition of post traumatic stress disorder. She came to the view that the appellant was unable to work. Dr Altman and Dr Wright had each given evidence as to the advantage which a treating doctor had. Those views would be preferred to the approach of Dr Strum. The views of Dr Wright and Dr Altman were unshaken by testing cross examination. Their views of the utility of DSM-IV, a tool used by both psychiatrists and the legal profession, to allow effective comparison of opinions held by psychiatrist, would also be accepted. Reliance was also placed upon the approach of O'Keefe J in Stankowski v Commonwealth of Australia [2004] NSWSC 198 and the Court of Appeal in State of New South Wales v Seedsman [2002] NSWCA 119. This, it was submitted, must lead to a rejection of the conclusion that the appellant was suffering from an adjustment disorder.

102 It was also argued that in so far as Dr Strum did not have before him the factual matrix here before the Court in the evidence, the Court and he were in a much different position. That evidence was analysed and it was argued, confirmed the diagnosis of Dr Altman. The appellant's evidence and demeanour in the witness box, also confirmed that diagnosis. In the circumstances, the support which Dr Altman's views received from Dr Wright, meant that their views should be preferred, despite the other doubts thrown upon the diagnosis by Dr Strum.

103 Even on Dr Strum's evidence, the stressors to which the appellant had been subjected could have led to post traumatic stress disorder. He conceded that the appellant suffered at least some of the symptoms of that disorder. In those circumstances, it was inappropriate to attempt to strand out the two conditions from which the appellant undoubtedly suffered and to seek to identify which of them was operative, at the time of discharge, in leading to the incapacity which it was agreed then existed. Account would also have to be taken of the different times at which the various diagnoses were made.

104 It was also submitted that the evidence of Inspector Bell provided but little assistance, particularly given that all of the file to which his evidence referred had not been tendered.

105 In reply Mr Ower submitted that the appellant was challenged in cross examination as to what he had told various doctors at different times. It was accepted that he was disarmingly honest in conceding that his affidavit should have contained certain things and that he also made concessions in relation to his capacity to perform work. It followed that the appellant was not challenged as to his credit, but his concessions had to be considered.

106 As to Dr Strum, it was submitted that his views should be given particular weight, because he had available to him all of the other medical reports and had regard to those opinions, which differed from his own.

107 The parties were agreed that the appellant suffered from a depressive illness which rendered him incapable of performing the duties of his office. The preponderance of the medical opinions was that the appellant also suffered from various symptoms of post traumatic stress disorder, but there was disagreement as to whether he had in fact ever developed that illness. Whether or not he had must now be determined, having regard to all of the evidence led in the proceedings.

108 The differences in the histories taken by the various doctors will undoubtedly have been impacted by various factors, including the time at which each doctor saw the appellant, the state of his health at the time, the questions that they asked and the answers which he gave and how they were recorded. In the case of Dr Altman, the fact that he saw the appellant on seven occasions, rather than one or two, will also have had an undoubted impact.

109 There can be no doubt that the evidence given by the appellant in these proceedings was more consistent with the histories taken in 2000 by Dr Altman and Dr Wright, than with those later taken by Dr Strum, Dr Dyball and Dr Kaplan. Both Dr Strum and Dr Wright were of the view that on occasions treating doctors got too close to a patient's problems and that the perspective which a forensic psychiatrist brought to bear, can be of assistance in proper diagnosis. In this case, of course, Dr Strum and Dr Wright came to different conclusions as to the correct diagnosis. It was also the respondent's case that Dr Altman's diagnosis had been influenced by his own professional interest in post traumatic stress disorder. On the evidence, I am unable to come to such a view.

110 In these proceedings there was no attack upon the appellant's credit, although some aspects of his evidence was challenged. In this respect, I note that the appellant gave evidence of suffering from flashbacks, a symptom which none of the doctors noted when they interviewed the appellant, including Dr Altman, who explained how it was easy to mistake intrusive thoughts for flashbacks, which involve a visual element, rather than merely involuntarily thinking about something. Both Dr Strum and Dr Altman explained the care which needed to be taken when eliciting symptoms and a history from a patient, in order to ensure that a psychologist does not suggest the presence of symptoms to the patient. In this respect, it must be noted, that part of the appellant's evidence in chief was put on by way of affidavit prepared with the assistance of a solicitor. The report of the appellant's general practitioner Dr Macpherson, also did not refer to this symptom being suffered, although he confirmed the presence of nightmares, headaches and intrusive thoughts, commencing in 1989 and becoming more aggravated over time.

111 In light of all of the evidence, I have had to conclude that at the relevant time, that is the date of issue of the certificate in question, the appellant was not suffering from flashbacks. That, nevertheless, does not lead to the conclusion that the diagnosis of the treating doctor, as to the existence of post traumatic stress disorder, was inaccurate. Dr Altman had not found that flashbacks were then occurring. He, nevertheless, concluded that the disorder existed. This was consistent with the relevant DSM-IV criteria, which does not require that all of the various identified criteria be present.

112 It was Dr Altman's view that a post traumatic stress disorder had existed for in excess of 10 years, even though it had not incapacitated the appellant prior to November 1999. Dr Strum confirmed that while incapacity and seeking medical treatment were a common indication of the existence of that disorder, there were people who continued, even while suffering the disorder. It was not necessarily always incapacitating. Dr Wright expressed similar views. It follows that consideration must be given to whether the appellant was one of those individuals.

113 There was no issue between the parties that certain of the stressors to which the appellant was exposed, were such that they could have resulted in the disorder. The evidence put that beyond doubt. As Dr Strum explained, the work which police officers are called upon to perform, expose many of them to such stressors, but post traumatic stress disorder does not necessarily result for all such officers. This is because stressors affect people differently and whether or not a disorder results, depends upon the particular individual concerned. It was also Dr Strum's evidence that there are some people who contract a disorder such as depression, which then causes earlier stresses which they had previously been able to adequately control or deal with, to resurface. This does not mean that such people were earlier suffering from another undiagnosed illness.

114 On Dr Strum's approach, an important question in clinical assessment is to determine whether a stressor has resulted in illness. There was no doubt that after 1989 the appellant suffered symptoms of post traumatic stress disorder, for example ongoing nightmares, which seriously disturbed his sleep. All of the doctors agreed about this. The question, as Dr Strum posed it, was whether or not the symptoms had resulted in an illness. On his approach, many people, including police officers are exposed to stressors which may even cause nightmares, but they do not result in illness. Dr Strum explained illness as involving change from a person's normal condition, loss of function and suffering.

115 As I noted earlier, Dr Strum was not, however, of the view that post traumatic stress disorder could only be present if it caused incapacity. This was consistent with Dr Wright's evidence and the DSM-IV criteria for that disorder. In Dr Wright's experience, people suffering from this disorder, and others such as depressive illnesses, sometimes continue to deal with the symptoms of this disorder, without seeking medical attention or taking time off. Often they hope that the symptoms will go away. This does not, however, mean that the disorder was not being suffered.

116 So approaching the evidence, it must be concluded that the appellant has met the onus falling upon him in these proceedings to establish that he suffered from post traumatic stress disorder. While not all of the doctors elicited the same history or symptoms, account must be taken of the different times at which the histories were taken and the way in which they were taken. Dr Dyball, for example, elicited few symptoms consistent with the diagnosis of post traumatic stress disorder. All others elicited at least some symptoms consistent with that diagnosis.

117 I am satisfied on the evidence, that such symptoms were present to such a degree at the relevant time, that it must be concluded that the appellant was ill, as Dr Strum described it and that he was suffering from post traumatic stress disorder. Even Dr Kaplan, who diagnosed adjustment disorder expressed the view that: This presentation is problematic. While there is no doubt that Sergeant Flatley experienced traumatic events which recur on a daily basis, this does not necessarily constitute PTSD. He is lacking the essential features of hypervigilance, jumpiness, exaggerated startle reflex, phobic avoidance of public situations, depersonalisation and emotional numbing. On that basis, his symptoms are, on the balance of probabilities, consistent with an Adjustment Disorder with anxiety, chronic".

118 On the evidence, some of the essential features of post traumatic stress disorder which Dr Kaplan did not find were present, were not consistent with the symptoms of that disorder. Dr Altman and Dr Wright found other of those symptoms present, consistently with the evidence in these proceedings. I am satisfied that the symptoms from which the appellant suffered included intrusive thoughts and nightmares; avoidance of stimula associated with the trauma, including work of that kind, or even discussing similar incidents; as well as having an effect upon his ability to concentrate. For example, the appellant gave up reading for leisure as a result, in 1998. There were also his anxieties impacting upon his relationship with his wife; his reduced involvement with others, as well as in the social activities in which he had formerly engaged. The appellant also had difficulty sleeping and struggled with feelings of irritability. In my view, these symptoms appear to put beyond doubt Dr Altman's diagnosis, as confirmed later by Dr Wright, particularly when attention is paid to the DSM-IV criteria.

119 I accept that account must be taken of those criteria in those proceedings. I note Dr Strum's reservations about their accuracy and utility in all cases. Undoubtedly, they are no substitute for proper clinical assessment. Nevertheless, given the evidence and the competing views expressed as to adjustment disorder, how it can be diagnosed when a depressive illness is suffered and whether or not it is a less severe form of post traumatic stress disorder, I am satisfied that the proper approach is to give significant weight to the DSM-IV criteria, accepted as it has been in many of the other authorities to which I was referred. In this respect, I particularly note the observations of the Court of Appeal in Seedsman at [114] to [122].

120 I am also satisfied that the appellant did not suffer from adjustment disorder. In this respect it is relevant to note that Dr Kaplan appeared to take the view that adjustment disorder had resulted from stressors other than the complaints made against the appellant. Dr Strum, however, regarded these complaints as the relevant stressor. Dr Wright and Dr Altman were of the view that there was no adjustment disorder. In light of all of the evidence, I am satisfied that their views must be preferred.

121 I am satisfied that adjustment disorder is a different illness to post traumatic stress disorder and given the length of time that the appellant's symptoms persisted, such a diagnosis was not properly here available. This is confirmed by the common views of all the doctors, that the appellant suffered from major depression.

122 The appellant was, undoubtedly unwell throughout the 1990s, even though he continued to work. He then felt unable to discuss his problems with other police officers, although he raised them with his general practitioner, who does not appear to have offered him any treatment for his symptoms, even though they persisted for many years. The appellant's ability to cope undoubtedly reduced over time, exacerbated by the harassment at work to which he was subjected, for a period of five years from 1995. Dr Strum was of the view that the appellant contracted a depressive illness in the course of this harassment. Other doctors were of the view that the appellant contracted this illness in 1999, when the appellant perceived the threat of further harassment arising, with the possibility of his involvement in the civil proceedings involving his harasser.

123 Whichever view be correct, the evidence showed that this development further exacerbated his problems. The appellant then found himself inexplicably making mistakes at work, for which he was counselled. He could not himself explain why he was making such mistakes and when they were repeated, again inexplicably, so far as the appellant was concerned, so that further counselling resulted, his ability to cope failed completely. Inspector Bell described the appellant's reaction to his counselling on the last day at work as one of concern, as was the reaction of others who had to be similarly counselled at that time. The appellant was also nervous, consistent with Inspector Bells' experience of him. It was a busy day at work. The station was short staffed. Some aggressive persons had to be dealt with, as well as a series of complaints about a domestic incident. The taking of sick leave for stress arising from work resulting from counselling which Inspector Bell regarded as having concerned a relatively minor matter, which also had to be raised with other officers, was consistent with the appellant's illness. The appellant reacted in an entirely different way to how the other officers, who Inspector Bell had also counselled. No one else took sick leave as a result. Unknown to Inspector Bell, this reaction was consistent with the appellant's illness. The appellant was then referred for medical assistance, which uncovered the illnesses which had led to his difficulties.

124 On the evidence, the opinions of Dr Altman and Dr Wright, that the events which caused the appellant's depressive illness, also affected his ability to continue coping with his post traumatic stress disorder, must be accepted. This is consistent also with Dr Strum's explanation that in some cases, a depressive illness has the result that a person is longer able to cope with their repressive mechanisms which kept earlier traumatic events under control. On the evidence, in this case, the appellant was earlier suffering from the illness of post traumatic stress disorder, even though it was not at that point incapacitating. Incapacity only resulted when the appellant contracted a second disorder, major depression. The real difference between the opinions of these doctors was whether or not the symptoms from which the appellant was earlier suffering had developed fully into a post traumatic stress disorder. I am satisfied that they had and that the views of those doctors who came to that conclusion must be preferred.

125 The question which therefore remains to be determined is whether or not the appellant's post traumatic stress disorder contributed to his undoubted incapacity for work at the relevant time. The Full Court in SAS Trustee Corporation v Daykin [2002] NSWIRComm 124 referred at [28] to the observations of Glynn J in the judgment under appeal, with which the Full Court agreed. There her Honour had followed the approach of Hungerford J in Woodlands v SAS Trustee Corporation [2001] NSWIRComm 232 at [24] - [42]. Her Honour observed: In other words, it is to be emphasised for present purposes, if an officer has the benefit of an existing certificate with a specified infirmity or infirmities then it is not open to add another infirmity unless that other infirmity itself was causally connected to the incapability to perform duties. ( Woodlands par 38).

126 Here, I am satisfied that the views of Dr Altman and Dr Wright must be preferred, namely that the two conditions in question contributed to the incapacity. Not only were those conclusions reached at a closer time to the events in question, than those later reached by the other doctors, particularly in Dr Altman's case, they were conclusions which were consistent with the evidence in this case. The evidence does not properly enable me to reject those opinions in favour of those expressed by Dr Strum and the other doctors to whom I have referred. When the appellant was first treated by Dr Altman, he had not had the benefit of the treatment, which flowed from his visits to Dr Altman. Nor had he received medication, which on the evidence was useful in the treatment of both disorders. Nor had he long been removed from police work, a step which on Dr Wright's evidence, was part of the treatment for his post traumatic stress disorder. Still the symptoms of post traumatic stress disorder, then of long standing, continued.

127 I entirely accept Dr Wright's explanation of how difficult it is to seek to determine which of the two disorders suffered by the appellant led to the resulting incapacity for work. Given the consequences of the symptoms of these two disorders, lack of sleep, tiredness, inability to concentrate, the making of mistakes at work and so on, I am satisfied that it is not possible to conclude that one disorder, rather than the other, led to incapacity. All the evidence rationally points to this having resulted from the symptoms of the two disorders from which the appellant suffered.

128 It follows for all of these reasons that the appellant has made out the onus falling upon him in these proceedings, and that he must here have the orders sought. I order accordingly. It also follows that the appellant must have the usual order as to costs, namely that the respondent pay the appellant's costs, as agreed or assessed. I also make that order accordingly. ------------------------

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Judgment (166 paragraphs)

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Cases Cited (4)