Wilson v SAS Trustee Corporation

District Court of NSW|2023-06-27

Judgment Background Plaintiff's background Early police career Exposure to psychic traumata in early police career Blacktown general duties Left knee injury 26 July 1994 Exposure to psychic traumata at Blacktown A. SIDS B. Dismembered body C. Elderly lady in bath D. Body of young woman split in half F. Double murder and suicide G. Murder of sexual assault victim H. Murder and suicide at Prospect J. Attempted hanging in police cells K. Attempt to resuscitate a heart attack victim L. Hanging at Quakers Hill M. Suicide of Cons SB N. Industrial accident O. Incident at Crows Nest Attendances on Police Psychology Unit - 1991 9 July 1991 10 July 1991 16 July 1991 23 July 1991 8 August 1991 17 October 1991 Evidence of Vicki Ann Wilson Evidence of Mr Gary Raymond Significance of the Plaintiff's seeing psychologist in 1991 Attendances on Police Psychology Unit in 1993 24 November 1993 Positives Action 22 December 1993 Significance of the Plaintiff's seeing psychologists in 1993 Attendances on Police Psychology Unit in 1996 and 1997 7 November 1996 8 January 1997 Significance of Plaintiff's seeing psychologist in 1996/97 Transfer to Kings Cross Knee injury 30 December 1997 Attendance on Police Psychology Unit from 1998 Medical Discharge Treatment after PSAC certification S12D gratuities Subsequent employment to 2012 October 1999 - September 2000 January 2000 - May 2000 June 2000 - November 2000 January 2001 - June 2001 June 2001 - October 2001 January 2002 - March 2004 March 2004 - March 2005 October 2005 - November 2005 December 2005 - March 2006 May 2006 to May 2008 20 October 2008 to 17 July 2009 3 August 2009 to 16 September 2011 The Plaintiff is bullied at WSC Treatment after WSC declined liability When was PTSD more recently diagnosed? No contest on the existence of PTSD Plaintiff's workers compensation claim Employment history after WSC Kmart Australia Ltd Hudson Global Resources (Aust) Pty Ltd Fire Administration Services Pty Ltd Life without Barriers GFC Rutherford Pty Ltd Peoplefusion Pty Ltd Steve Wilson Heart 'n' Head PT Services Poolwerx Long Jetty NSW Health Service: Central Coast Local Health Service: Gosford Hospital Salary of the Plaintiff's office PLAINTIFF'S SECOND APPLICATION Plaintiff's psychic symptoms 1998 to 2010 Scheme of the Act Consideration Can PSAC's certificate of 29 March 2006 be amended? Notice The "limitation" issue Appropriate relief PLAINTIFF'S FIRST APPLICATION What would the Plaintiff be earning if uninjured? What could the Plaintiff earn in his injured state? Backdating Orders Matter No RJ 258 of 2019 Matter No RJ 171 of 2020 Associate's note

Background

HIS HONOUR: The Plaintiff is a former sergeant of police. He was attested as a probationary constable of police on 2 April 1982 and thereupon became a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906 ("the Act"). On 29 March 2000 the Police Superannuation Advisory Committee ("PSAC"), established under the Act, acting as a delegate of the Defendant, certified that the Plaintiff was incapable of discharging the duties of his office due to the infirmity of "chondromalacia patellae (of the) left knee". On 4 April 2000, the Commissioner of Police, by his delegate, decided that that infirmity was caused by the Plaintiff's being "hurt on duty" ("HOD") by an injury that occurred on 30 December 1997. On 6 April 2000 the Plaintiff was medically discharged from the NSW Police Service ("NSWP"). He thereupon became entitled to a superannuation allowance, or pension, based on 72.75% of the salary of his office, from time to time, ever since.
There are before me two applications. The first, that of 2019, is for an increase in that pension entitlement since the date of his discharge. The Defendant granted an increase to 77.11% of the salary of the Plaintiff's office on 22 February 2019 but the Plaintiff alleges that that is not commensurate with the Plaintiff's incapacity for work outside the NSWP and seeks an increase to the maximum permitted under s.10(1A)(b) of 85%. This is relatively straightforward.
The second application, that of 2020, is not. On 18 November 2019, the Plaintiff made an application for "HOD pension by a former member of NSWP under s10B(2) of the Act". That was received by the Defendant on 21 November 2019, but it declined to entertain the application. In a letter dated 3 December 2019 it said this to the Plaintiff's solicitor: "Section 10B(2) is only applicable to a 'former member' of NSWP 'who has resigned or retired'. We note that your client neither resigned nor retired from NSWP. Although the term 'retired' as defined in s10 includes discharged as referred to in section 7 or 14, we note that your client was discharged under s10B(1). It is therefore clear that his purported application under s10B(2) is invalid. STC [the Defendant] has no power to deal with it". By letter sent by email on the same day, 3 December 2019, the Plaintiff's solicitor asked the Defendant to "amend our client's s10B(1) certificate to include the infirmity of 'post traumatic stress disorder'". Post-traumatic stress disorder ("PTSD") was the subject of the application under section 10B(2). By another letter dated 4 December 2019, the Plaintiff's solicitor drew the attention of the Defendant to certain provisions of the Act and the Superannuation Administration Act 1996. The Defendant responded to both of the Plaintiff's solicitor's letters of 3 and 4 December 2019 by letter of 4 December 2019 which said this: "With regard to your request for your client's s10B(1) certificate to be amended, I regret to advise that the [Defendant] has no power to grant your request as it is functus officio in regard to your client's application under s10B(1). As you know, PSAC's decision pursuant to s10B(1) was made on 29 March 2000 and your client was notified of that decision by letter dated 29 March 2000. Your client was subsequently legally represented by Taylor & Scott, who did not cavil with that decision. To be clear, [the Defendant] having made its decision (via its delegate) on 29 March 2000, has no power to make a further decision pursuant to s10B(1)."
Paragraphs [10] to [13] of the Amended Statement of Claim in the 2020 matter (upon which I granted the Plaintiff leave to proceed on 18 October 2021) are these: "10. The Plaintiff is aggrieved of the Defendant's decisions of 29 March 2000, 3 and 4 December 2020. Particulars (1) The Defendant has failed to give real and genuine consideration to the Plaintiff's application for a certificate of incapacity and/or amendment of his certificate of incapacity. (2) The Defendant has failed to investigate the Plaintiff's application for a certificate of incapacity and/or amendment of his certificate of incapacity. (3) The Defendant is not functus officio. (4) The Plaintiff's applications are not invalid. (5) The Defendant has the power to amend the Plaintiff's certificate of incapacity issued on 29 March 2000 or, alternatively, to issue a certificate of incapacity pursuant to s10B(2) of the Act. (6) The Plaintiff notified the Commissioner of Police of his suffering from the infirmity of post traumatic stress disorder within 6 months and prior to his resignation. (7) The Plaintiff was incapacitated for the duties of his office on 29 March 2000 as a consequence of suffering from the infirmity of post traumatic stress disorder. 11. The Plaintiff brings these proceedings pursuant to s.21 of the Act. Particulars The Plaintiff is aggrieved of a decision made by the Defendant on a matter that arises under the Act by reason of his being hurt on duty. SAS Trustee Corporation v Rossetti [2018] NSWCA 68 12 The Defendant's decision was not made under s67 of the Superannuation Administration Act 1996. Particulars Section 67(5) SAS Trustee Corporation v Rossetti [2018] NSWCA 68 13. The Plaintiff seeks an order pursuant to s.21(4)of the Act that the decisions of the Defendant dated 3 and 4 December 2019 be set aside."

Plaintiff's background

The Plaintiff was born in September 1959. Dr Michael Diamond, Consultant Psychologist, interviewed the Plaintiff on 5 August 2021. Part of his history is this: "Developmental and family history Mr Wilson is the eldest of five brothers. They are closely spaced in age. His youngest brother is now aged fifty five. They were born and raised within an intact marriage. He was raised at Ryde in Sydney. His father is now deceased. He died at the age of seventy six after a cancer diagnosis. His father was a qualified electrician who worked at Garden Island and then for Sydney City Council continuously until his retirement. He described his father as a traditionalist. He said he was a good provider sufficient to send all the brothers to private Catholic schools. His mother is alive and well, aged eighty three. He noted that she has recovered from cancer of the breast, bowel and thyroid over the years and is doing well. He described family life in positive terms. He described a happy family environment where they went on holidays, celebrated Christmas and birthdays and where family members still remain close. I mentioned to Mr Wilson that I had read that there was some tension in his relationship with his parents documented in some of the psychology notes while he was in the Police. He said he was close in age to his next brother who turned out to be a high achiever earlier on. Mr Wilson said he was compared with him when they were younger. He commented that he did his achievement later on in his life. When he was younger he said he was not as focused or as compliant as his brother and they clashed. Over the years this had settled down. He said he was strong-willed and was quite comfortable to do things his way. He commented that his father had views about the boys not being university material. He said his father was slow to acknowledge their academic and intellectual abilities. Nevertheless, he grew up knowing that his father was proud of him and his brothers. His social history as a child was of a settled, confident boy. He was part of his peer group at school and made long term friendships. He was close to his brothers and remains so. He grew up as a sports-loving youth and continued throughout his adult life to be involved with sports. He was comfortable amongst females growing up." He attended St Charles Primary School at Ryde and the Holy Cross College in the same suburb, leaving with the school certificate in 1974. According to a history recorded by Prof. James Bright on 23 October 2017 the Plaintiff "hated [high] school and did not like the Christian Brothers. He was best at maths and worst at spelling. He represented his school in rugby league." Until relatively recently, the Plaintiff was an active sportsman. He was very much involved with the Parramatta Eels R.L.F.C. when he was living in Sydney.
After leaving school, the Plaintiff commenced and completed an apprenticeship as a sheet metal worker, attending Granville TAFE. He completed his apprenticeship in 1981, according to Prof. Bryant's history. On 11 January 1982 he entered the Police Academy (then at Redfern) which led to his being attested as a Probationary Constable on 2 April 1982. He was then 22 years old.
The Plaintiff first married at the age of 17. His first wife's name was Rita. She bore him a daughter whom they named Jaime Louise. They separated and divorced when the Plaintiff was aged 21 years.

Early police career

On 3 April 1982, the Plaintiff commenced general duties at Redfern Police Station. On 26 September 1982 he was transferred to Mascot Police Station. Whilst at Mascot, he started working in criminal surveillance. Exhibit 3, the Plaintiff's "Service Summary" shows a transfer to "Administration" at Mascot on 10 April 1983 and to criminal "Investigation" on 3 June 1984. In his oral evidence the Plaintiff referred to this work as being in the surveillance unit of the CIB. All told, he thought he did this work for about three years. He described this work as "doing recordings, doing stuff like taping people, following people….. Bugging houses, offices, those sorts of things…. Basically the undercover work…. Maybe sitting at the bar just watching someone, following somebody in a car, those sorts of things, going to houses and…. drilling holes and putting bugging devices in".
On 31 May 1987, having reached the rank of Constable First Class on 2 April 1987, he was appointed to the Police Academy as a fitness instructor, weapons instructor and defensive tactics instructor. On 17 April 1988 he was transferred to "Youth Clubs", initially to Bankstown PCYC, then Hornsby PCYC, then briefly to Canterbury PCYC on 13 March 1989 before being transferred to Blacktown PCYC later in 1989.
When the Plaintiff was at Bankstown PCYC, he met Ms Martha Jabour who was President of the Sudden Infant Death Association and the Plaintiff working with her in Sudden Infant Deaths ("SIDS").
In 1985, the Plaintiff commenced a relationship with Vicki, whom he married. Their first child, a son Matthew, was born in December 1989. They later had a second son, Daniel, born in July 1993.

Exposure to psychic traumata in early police career

Within the first six months of his service, the Plaintiff was exposed to his first trauma, probably at Mascot. This was his description of the event: "A. The first time I was exposed to any incident was a motor vehicle accident on Botany Road where a motorcyclist had gone underneath a truck and he was decapitated which was at night. At the time we were trying to search for his, his head, his decapitated head. And back in those days the railway line on the, on the, the side of the railing, upon inspecting, I found his helmet. At that time I didn't know his head was in it so I picked up the helmet and saw his head in the helmet." Another event that he recalled during his first period of general duties was when a V6 Volkswagen's brakes caught fire on Qantas Drive between the International and Domestic Air terminals. The Plaintiff's evidence was this: "A. At the time I observed the person in the car, it appeared to me that the person was trying to get out of the car, but the car was on fire and, yeah. We couldn't get, we couldn't get close enough to the car to, to get him out. MORRIS Q. And I take it that the person was lost? A. He was, yeah." He also recalled attending a backyard toilet at Botany in which a teenager had hanged himself. The Plaintiff lifted his body up in order to be able to cut it down, but the deceased "defecated all over me". The Plaintiff appeared to me to be more concerned with being soiled than with the lifting of the teenager's body.
Whilst in the surveillance unit he did work in relation to the Milperra Massacre. In relation to the Anita Cobby murder he was involved in taping prison calls. He was also involved in surveillance in the Janine Balding murder, which he found "disturbing". He also gave evidence about surveillance work he did in respect of the death of a young lady who had been set on fire: "… we did night time surveillance on the cemetery where she was set alight because they had information that the offender was continually going back to the cemetery, and we did night time surveillance on…. the cemetery." Although this was eerie, there was "no blood or gore" involved.

Blacktown general duties

According to Exhibit 3, the Plaintiff was transferred to Blacktown general duties on 18 February 1990, although it is possible that he started in that role earlier, from Blacktown PCYC, and the official records were late in catching up to the reality. I have come across this phenomenon often in dealing with cases such as this. However, the first recorded event at Blacktown, of which I am aware, occurred on 9 March 1990. On that occasion, other police had arrested a drunken man outside Tiffany's Night Club for offensive language. He was being escorted by them, on foot, back to the Blacktown Police Station but was resisting them. During a scuffle at the police station, the Plaintiff was thrown backwards and landed on his left side on the ground of the courtyard. He fractured his left fifth metacarpal. The Plaintiff is left handed. He was taken to Blacktown Hospital. He later came under the care of Dr M.D. Johnston and was referred to Dr John Bosanquet (orthopaedic surgeon). His dominant left hand was placed in plaster. This was accepted as HOD. The Plaintiff was off work for at least 10 days. This injury is, of course, irrelevant to the current issues. However, all the records kept by the NSWP were tendered. The volume of those records is to be contrasted with the complete lack of other records of other events which are alleged to be of great moment.

Left knee injury 26 July 1994

On 26 July 1994 the Plaintiff was involved in arresting an offender who had assaulted his sister. The offender kicked the Plaintiff in the left knee causing him to lose balance and to fall heavily on to the edge of a concrete verge at the rear of the premises where the assault occurred. The Plaintiff's occurrence pad entry contains this: "As a result I felt severe pain in my left knee making it difficult to work without pain. I attended Blacktown Hospital where they X rayed the knee and found there were no breaks. The Doctor treated the injury stating that there was severe bruising underneath the knee cap and has issued me a certificate for 3 days commencing on 27/7/94 and concluding on 29/7/94. Dr Fabian has advised that I attend my local physician for further treatment to the injury."
The Plaintiff's GP was Dr Michael D. Johnston of Westmead. He initially referred the Plaintiff to the late Dr John Harrison, orthopaedic surgeon. On 10 August 1994, Dr Harrison carried out an arthroscopy at the Hills Private Hospital. The operation report contains this: "Pathology found: He had a stable range of movement in that left knee with a slight effusion and perfectly normal medial and lateral compartments and cruciate ligament complex. At the patella-femoral joint he had an area of chondral damage of Grade II configuration with a fissure through the margins of the central facet on the posterior aspect of the patella involving an area of about 1cm to 1.5cms across combined with fissuring in a vertical cleavage pattern down through the trochlear area more to the medial than the lateral side of the trochlear area in the intercondylar region which was again of Grade II configuration. Operative approach & technique: Through standard portals the knee was examined. An arthroscopic chondroplasty to smooth the affected area on the central facet on the posterior aspect of his patellar was performed but nothing other than photographic documentation of the lesion to the trochlear was done as it has the capacity to repair itself although part of fissure extended down to bone. After a thorough washout the wounds were closed with steri-strips and a padded bandage applied."
However, the Plaintiff's symptoms persisted and Dr Michael Johnston then referred the Plaintiff to Dr Michael Johnson, another orthopaedic surgeon. In a report of 25 May 2000, Dr Johnson recorded this: "When I saw him on the 13 December 1994 he was complaining of pain and giving way. Clinically he had marked retro-patellar crepitus and a positive Osmond Clark test and a further arthroscopy was advised in view of the increasing symptomology. He agreed to the arthroscopy and it was carried out at the Mater Hospital at Crows Nest on the 18 January 19[9]5. At this arthroscopy he was found to have considerable chondral damage to the patella as evidenced by the video print outs which he has in his possession, and a surrounding synovitis. These areas were dealt with arthroscopically. Following this he had further physiotherapy. He was reviewed on the 31 January 1995 when he said he had improved but he still had some pain with contraction of his quadriceps and physiotherapy continued. He was seen on the 28 February 1995 and he told me that he was good. Cycling was giving him no trouble but there was still some slight crepitus and quadriceps wasting which he needed to build up further. At his request a certificate to return to work on light duties was provided. He was next seen on the 4 May 1995. He said his left knee was good. When sprinting for a bus on one occasion he had had some pain. His knee had given way on one occasion going up steps. Clinically there was then slight crepitus, slight discomfort with Osmond Clark test and normal quadriceps. He was fit to continue at work. Anti-inflammatories were advised to continue whilst he continued building up his muscles."
This knee injury was accepted by NSWP as HOD and the Plaintiff's absences from work were compensated as were his treatment expenses.

Exposure to psychic traumata at Blacktown

The Plaintiff gave oral evidence about 14 different topics or events which he relies upon that occurred whilst he was stationed at Blacktown. I shall assign to each of those a capital letter to make subsequent identification of the event easier. I give them in the order that they were given in evidence, but I doubt that this is a chronological order. Very few events can be actually dated.

A. SIDS

Because it became known at Blacktown that the Plaintiff had worked with Ms Jabour in relation to SIDS, "every time" a child's death occurred its investigation was assigned to the Plaintiff as he was called in to assist those who were investigating it. On any such occasion he was exposed to both the deceased child and to the child's grieving parents. This evidence was given: "HIS HONOUR Q. Of course one of the problems with that is that sometimes you had to look upon the parents as potential suspects because for all anyone knew, the child could have been suffocated? A. That's correct your Honour and that was one of the things that came out very much from the stuff that we worked or that I worked with Martha Jabour on was the fact that many of these instances the parents were being treated as criminals and they shouldn't have been. They should have been treated with compassion, empathy, and they were not being treated that way. So my, my role there was to assist other police in terms of treating the parents with respect. We eventually got bassinets put into ambulances instead of putting baby in a body bag. Q. It was affecting a cultural change in the way that the emergency services responded to SIDS, isn't it. A. That's correct your Honour, yes. One of those particular ones was I got called to a young child by the ambulance that appeared to be - have bruises over her body. We got to the hospital, and was begging the - because the parents were quite distressed and I was begging the doctors to let them into the emergency surgery or emergency so they could spend the time with their child. The child passed away. It was then discovered that the child had meningococcal. That I was done your Honour. Q. Were you-- A. I was completely done. I was - I sat in the gutter with the parents and just burst into tears. I'd had enough." When working at Blacktown the Plaintiff always had a young son, although he appears to have ceased cohabitation with Vicki in 1990. This evidence was given: "Q. Did you notice anything during this period about your relationship with Vicki? A. Yeah, it wasn't good. I was irritable, nasty. Quite often I'd be withdrawn. She would ask me questions. I wouldn't answer her. I slept with my hand on my baby, on Matthew. Every time he stirred I, I was awake. Q. How was your sleep during this period? A. Maybe an hour, two hours. Q. What was the problem? A. I couldn't, I couldn't sleep. Every time Matthew stirred, I'd be awake. If he murmured, I'd be awake. I was so worried that he'd, he'd pass away, I just had to be alert the whole time. Q. Did you have any difficulty or did you have any issue with nightmares or anything like that at that time? A. Yes, I did. Other things started to, to pop up. Such as the, the other incidents that I'd been to. I didn't want to tell Vicki, that wouldn't be fair to her. I didn't want to expose her to what I'd been exposed to."

B. Dismembered body

A man who had been drinking walked in front of a train between Doonside and Rooty Hill railway stations, spreading his body parts over a distance of some 500m in the vicinity of an overbridge. The Plaintiff and an ambulance officer walked along the railway tracks "picking up body parts". When they returned to the train, a fireman directed their attention to the deceased's entrails "hanging underneath the train." The Plaintiff and the ambulance officer then collected these and put them in the body bag. The next morning, at the morgue, the examining doctor pointed out that the deceased's "rib cage" was missing and they ("we") had to go back to the scene and collect the missing body part. It seems likely to me that only some part of the rib cage was missing - a whole rib cage is too large to "miss".

C. Elderly lady in bath

The Plaintiff was called to the suspected suicide of an elderly lady at Prospect. She had "taken a load of pills" and then got into a bath filled with water. She had been in the bath "for some time". The Plaintiff went to pull her from the bath: "I've basically degloved her. I've grabbed her arms and I can still feel her hands coming off… in my hands".

D. Body of young woman split in half

A young man, with his girlfriend next to him, was speeding, whilst driving a Toyota Celica in Doonside. He lost control and the car left the carriageway and "wrapped round a telegraph pole". The car was split into two parts. One part of the young lady was in one part of the car, and the other part of the young lady was in the other part of the car.

E. Death of pregnant women in MVA

A young woman had only very recently told her family that she was pregnant. She was driving a car on Prospect Road. Her sister was her passenger. She was stationary at traffic lights. A "hit and run driver" had collided with the woman's car. She died and miscarried because of her injuries. Her foetus did not survive. Her sister was injured and taken by ambulance to Blacktown Hospital. The Plaintiff said in evidence: "I opened up the car door and she was already pronounced dead and obviously she miscarried after the accident…. I remember putting my hand on her knee or her leg, just saying I'll look after [you], and then I had to go around and tell the parents… they were just beside themselves".

F. Double murder and suicide

This event is best described by the Plaintiff himself: A… I'm not quite sure of the date but it was certainly after Daniel was born. There was an incident where I - myself and another senior constable went to a domestic where a father had not returned his two girls. We spent some time investigating that particular incident. We'd visited the, the Lalor Park Hotel where we discovered that he'd actually bought a gun and then we started searching for them. That was the morning shift. We went back to the police station and spoke to Inspector Bennet where he told us we could actually continue on searching for them. At 2am of that morning we got a call to say that there was a - which we'd caught them down that street, Bessemer Street, a thousand times. But we got a call that there was a strange car and that a neighbour had heard a couple of bangs; didn't know what they were. When we got to the scene, he'd shot his two daughters who were about eight and nine years old; they were twins, I'm not quite - I can't remember now. But then he shot himself. When - we left him in the car and obviously did what we were required to do but when the coroner turned up who happened to be - or the pathologist turned up, Peter Ellis, told us that the girl near the door had been alive for some time. I remember myself and the other senior constables said that we'll take them out of the car. We weren't going to go anywhere near the father, we just--. So, I remember pulling the, the first child out of the car and I can still remember the smell; there was a strong whiff of strawberries. I can still remember it; I can still see it putting her in the, in the bag, she had purple lips. And then we got the other child out and put her in the, in the body bag as well while scientific, at that stage, did what they were required to do; taking photographs."

G. Murder of sexual assault victim

At one time the Plaintiff was working as a domestic violence officer. A lady attended the police station, seeking that an AVO be taken out against her "boyfriend". When talking with her, the Plaintiff noticed a "fairly substantial cut" on the right side of her neck. He questioned her about that and she "broke down". She admitted that she had been sexually assaulted by her "boyfriend". The Plaintiff took a statement from her and referred her to detectives. Whilst the lady was with the detectives, the Plaintiff attended Blacktown Court House and spoke with a Magistrate and obtained an AVO. He then arranged for the lady to go to a women's refuge in Blacktown but the lady refused to go there as she wanted to stay at home with her elderly parents for whom she cared as part of her Asian culture. The Plaintiff's evidence continued in this way: "I spent quite a bit of time with this young lady and she ended up been murdered, disembowelled. I heard that on the news. I was driving my own car as I was driving to work. I got to work. Obviously I knew where she lived and I just knew it was her and I jumped in the car and went straight around there and saw the deceased on the front yard on the, on the, on the front footpath. She had been disembowelled. And the same knife that disembowelled her was the one that cut her throat earlier. Q. What was your reaction to that? A. A sense of guilt, a major sense of guilt. I still to this day say to myself I should have just picked her and thrown her in the car and taken her to the refuge, to this day, to this very moment. I didn't do enough. I didn't protect her which was my job. It's just a waste. I'm sorry. Q. After that incident did you approach [peer support officer], do you recall? A. I can't recall at that stage approaching the [peer support officer]. I know, I can you that some - at that time I can't recall. But I do recall going to a conference 12 months or approximately 12 months later in Goulburn. Prior to that I'd been around and saw the Crown in relation to that murder, and they wanted me to identify the deceased. They showed me photographs of the deceased. Not long after that they told me I would also be required to give evidence because obviously I had spoken to her. At the peer - I went down to a peer support conference. I think that was in the November, from memory. And I broke down at the peer support when they - I got a message to say that I would no longer be required to attend court that he had pleaded guilty and that I wasn't required. When I got that message I came back into the room with a whole lot of other people there and they had been discussing various things and I just broke down in the room. I just burst into tears. Q. Can you tell his Honour what triggered that? A. Again, it was just a sense of, a sense of loss, a sense of guilt. Just the fact that I couldn't protect her. I was feeling very, very distressed, I didn't know why I was, why I was crying, I had no idea. Inf act I had no idea why I was, why I was so emotional at the time."
According to a history recorded by a police psychologist on 7 November 1996, this event occurred "in 1995" but that seems unlikely as the offender's trial for murder was due to start on 6 November 1996. It is possible that the psychologist intended to write 1993. If the psychologist did that, or if the psychologist recorded an incorrect history, then the notes of another police psychologist referred, perhaps, to this event on 24 November 1993. I shall discuss the police psychology notes later.

H. Murder and suicide at Prospect

A couple who had been living together at Prospect separated, the children remaining with their mother. One morning, the man took their children to school, returned to the family home and stabbed his estranged wife, the children's mother, to death, and then committed suicide. The Plaintiff gave this evidence about the effect of this event on him: "A. That had a great impact on me in terms of the fact that I had two children, and basically this selfish to be honest with you, this selfish bastard had robbed the children of both parents. I remember her - seeing her lying on the floor in the foetal position holding her stomach, I can still see that and the kids saying, 'Well where's mum and where's dad?' I remember that. Then myself and a detective, I think it was Dallas.. (not transcribable).. from memory, went round to the house and we found him in the bath, he was in a - in like a spa bath and he'd cut his wrists and just sat in a warm bath."

J. Attempted hanging in police cells

Highway patrol police had arrested a drunken man. He was "screaming and yelling and carrying on" in his cell for some time but suddenly he became silent. The Plaintiff thought that was unusual so he went to the cell and found the man hanging in his cell. He screamed out for assistance, entered the cell and held the man up until another constable was able to cut the man down. The Plaintiff performed CPR on the man and he started to breathe. An ambulance was called. The man survived. The Plaintiff said that he was "emotionally shaken" from performing the CPR. This event was followed by an Internal Affairs ("IA") investigation, as one might expect, but there was no suggestion that any wrongdoing was alleged against the Plaintiff.

K. Attempt to resuscitate a heart attack victim

The Plaintiff gave this evidence of this event: "The only other incident I can remember at Blacktown one night on night shift an Asian gentleman had a, had a heart attack in front of the, the police station. When I got to the scene I said to the other constables, 'What are you doing,' and they, and they said, 'Oh, no, we've called an ambulance,' so I got down and started performing CPR and then another senior constable turned up and he started doing obviously CPR until the ambulance turned up. I remember as I was giving him CPR, in particular the cardiac compressions, I could feel the ribs breaking underneath my hands. When the ambos turned up they just said, 'Keep going, keep going, don't stop,' and then they started to ventilate him. They ventilated him and then they could see it was struggling from doing the cardiac compressions and then they, they said, 'It's okay, we'll take over,' so then they started taking over the cardiac compressions until another ambulance turned up and they could get him on board to take him to Blacktown."

L. Hanging at Quakers Hill

After further prompting by Counsel, the Plaintiff recalled this event: "A. There was a hanging at, at Quakers Hill. Father had, had hung himself in the garage. What distresses me the most about that was when I went to cut him down, considering I did one at Botany, I wasn't going to let - I remember putting on a raincoat to make sure that he didn't defecate on them. The other constable, sergeant actually, cut down and then as we got him down we turned around and his two kids were standing at the front of the garage. Q. What, watching? A. Watching us. I don't know where they came from. They certainly weren't in the house at the time when we spoke to the wife. They must've been out somewhere and then returned."

M. Suicide of Cons SB

In answer to a leading question, the Plaintiff then gave evidence concerning the suicide of Cons SB. The Plaintiff had worked with this officer and knew where he lived at Greystanes. The Plaintiff, it seems to me, heard a call on police radio identifying the address. Police from Merrylands had responded prior to the Plaintiff's arrival there. They had tried to talk the officer out of committing suicide, but he used his service revolver to shoot himself dead.

N. Industrial accident

In answer to another leading question, the Plaintiff gave this evidence of this event: "A. Yeah. There was a gentleman that was drilling into a brick wall, into a concrete wall and he had one of those - it was about 1 and a half inches in diameter and when he was drilling into the wall it kicked back on him and went into his stomach and we were the first car on the scene and I remember ripping my shirt off and holding his guts together, with the drill. Q. Did that have an effect on you? A. Yes. I remember having blood on my hands and after that I, I, I washed my hands and every time I looked at my hands I, I could still see the blood. No matter how many times I washed them, I could still see the blood. I could smell it, smell the copper smell. Q. Did you speak to anybody about that? A. No, I didn't."

O. Incident at Crows Nest

For this even the Plaintiff received a Commissioner's Commendation for Bravery. The Plaintiff described it thus: "A. I had gone to a friend's place for dinner. On my way home, I got to the Five Ways at Crows Nest. I saw two police officers in the distance opposite the fire station and they were stepped out of the car, they had their revolvers out pointing at a car. While I was sitting at the lights, I could see another Asian man coming up the road and walk - going to walk around the corner. He had a rifle in his hand. I flew across the road. I informed the fire station officers to call emergent duty to us as I obviously didn't know what the Asian man was going to do. I identified myself to the other two police officers. One was a young constable that had only been in the job a couple of months. The other one was - had been in the job 18 months. I took control of the situation. I asked the other young constable that was shaking to give me his revolver, which he did. I stepped from behind the car - I know this sounds very police-y but this is what happened. I walked up to the Asian man. I had - I was behind cover. I told him to put the rifle down. He got on his knees, put the rifle down. I approached him, came out from cover, approached him, he picked up the gun and pulled the trigger, and it didn't go off. And to this day I have no idea why I didn't shoot him. That sticks with me." The Plaintiff thought that this occurred in 1992, when he was stationed at Blacktown.

Attendances on Police Psychology Unit - 1991

During the evidence concerning events A to N, Counsel sought to introduce evidence to the Plaintiff's attending on police psychologists in what Mr Morris SC and Mr O'Neill considered to be a chronological order but I am not persuaded about that, as they appeared to believe that the Plaintiff commenced at Blacktown general duties earlier than I accept he actually did, on 18 February 1990. Whilst I did not record that finding at [14] above, there is really no evidence to the contrary such as e.g. the Plaintiff's telling me of only a very short appointment at Blacktown PCYC or of his being urgently seconded to Blacktown general duties because of some crisis or unexpected shortage of staff.
The Plaintiff first attended the Police Psychology Unit on 9 July 1991 i.e. some 16 months after his transfer to Blacktown general duties. He saw Dr Jan Westerink. (There are many different misspellings of her surname in the transcript) The Plaintiff saw her on 6 occasions in 1991, the last being on 17 October 1991. The notes made I set out below.

9 July 1991

Referred by District Commander [Superintendent Bill Galvin/ Inspector Bennett] Steve handed in his gun - feared he may suicide. Being counselled today and overnight by Det. Sgt Gary Raymond [PSO and Salvation Army Officer] Married. Difficulties for some time. Steve worked 3 jobs - wife 2 - have a young son now 18 months. Arguing++. Met Tanya through Youth Club. Has known her socially about 2 years - She has children and is separated from her husband. Left wife and moved into a house with Tanya 5 [or 8] weeks [ago]. Trouble since then. [She is] manipulative,? pathological jealousy, threats etc. She has said she will "get him" - will use IA, ombudsman or anything. Steve described her vindictive behaviour re her husband. Steve attempted to make this relationship work and spoke to her father about it. He advised him to leave her - saying that she was nasty and twisted. Steve angry with himself and with her. His wife says "She is still there for him." Overnight accommodation arranged by Det Sgt Gary Raymond. Police friends helping him move his gear. Will ring to see me 10 July.

10 July 1991

Steve came in again. Calmer but still angry with Tanya and trying to understand her motives and behaviour. Spent time with Vicki last night. Has 2 children (18 month boy and 13 year girl from a first marriage at age 17). To begin to look to future and manage practicalities (money etc). Further appointment made 1 week.

16 July 1991

Steve much improved. Headaches gone. Sleeping better. Concentrating on practicalities. Appeared more relaxed and cheerful. He had some contact with Tanya by phone. Discussed differences. Tanya claimed he got it wrong. He couldn't bring himself to fully sever relationship - thought it kinder to let it slowly die. We discussed 1. reality of her changing her personality, 2. how she has sought things from him - self centred (this hurt him) 3. Vicki was concerned for him, 4. the kindness of breaking relationship and letting Tanya get on with her life. [Plan] Later to discuss "secretive" - lying to loved ones. He will ring for an appointment when he knows his rosters.

23 July 1991

Still thinking about Tanya. Seems to be trying to decide whether to go back. Vicki said he should talk about: 1. parents helped him for 3 years when he was 21 when he separated from his first wife. Found wife in bed with a male. 2. went into police and parents did not come to passing out parade. 3. mother and father used to always tell him that he was "never good for anything." He recognises he looks for approval ever since, Brother Philip was favourite "Why can't you be like Philip." - Pointed out parents younger/busy etc then. Long term counselling can't come from here [Psychology Unit of NSWP] - Discussed different need with relationships [Diagram] Is Tanya a child and he an adult.

Also did Gestaltt [therapy] - "Wife Steve" standing behind chair talking to "disobedient Steve": "Wise Steve" told him to end the relationship with Tanya. See in 2 weeks.

8 August 1991

Tanya is seeing a psychiatrist (Dr Smith) and seems to have changed a lot - she tried to get them back together. Steve feels a bit guilty about not giving her a chance - but thinks it is ended. Vicki (wife) is still around and may want to get back with him. Spending more time with her Mother interested in coming in - to find out more about policing. Steve has decided he needs some "space" - agreed to take time before he decides about Vicki.

17 October 1991

Steve phoned Tanya has taken out charges against him

served [with] papers yesterday and he is to appear in Penrith Court this morning re threats to her on 9 July 1991. Anxious re outcome - needed reassurance. Later - Steve rang. Solicitors and parties agreed to a pre-hearing agreement so case was not heard. He has agreed to stay away from Tanya.

Evidence of Vicki Ann Wilson

Before turning to the argument about that evidence, the evidence of the Plaintiff's former wife, Vicki, and of Mr Gary Raymond, needs to be considered. When Vicki first met the Plaintiff he was engaged in undercover surveillance duties i.e. prior to 31 May 1987. She thought that they met in 1984 or 1985, when she was in her late 20s. They married probably a year later (1985 or 1986). Vicki said that she noticed a change in the Plaintiff "after he went to Blacktown general duties" (T145.26). She also said this, commencing at T150.33: "he was happy before he went to Blacktown. We had a really great relationship and intimate and before I had Matthew of course… and no indication whatsoever that there was…. [any] problems and we were happy." When she first met the Plaintiff he was a "happy, sporty, lovely man". She said that the Plaintiff changed "over a period of months" after he started general duties at Blacktown: "His demeanour changed. He…. wasn't his happy self… he came home angry, he came home unhappy, he came home sad, he came home upset". She went on to say this: "A... I don't remember the exact dates but I remember that he went to Blacktown general duties and that's when he started to change. When he was working at the Police Boys Club and the - when he was working undercover he was fine, like he's - that's the dates. But when he went to Blacktown, after he was at Blacktown for a little while that's when things started to change in our relationship, and his demeanour towards me, towards everything, that I can remember. MORRIS Q. And you said that he got angry. Can you just explain what that change was like? What happened? A. Well he'd come home not happy, and I would ask him what was wrong. You know like you know normal general questions, how his day, and he, he, he didn't, he wasn't happy to answer and he was angry. I - there was one, only one occasion, another occasion that I can remember that he got easily aggravated, you know. I can remember distinctly, this I can remember distinctly, driving along a main road and he got - and I think I put this in my statement, I know I put this in my statement 'cause I can remember it. We were driving along the highway and normally he wouldn't be, it wouldn't be a problem. But somebody cut off, cut us off and he got angry and it wasn't like him to get angry like that, and then he was going to chase the guy, like try and go and get him, and I said 'Stop', you know, like 'Wake up'. Anyway he just got his number plate. I said 'Get his number plate and report him you know, yeah. But don't do anything', you know. But it - and that wasn't like him. He would never have done that before."
Initially Vicki thought that it was her fault that the Plaintiff was changing but she had no idea why. A little later she gave this evidence: "Q. Did you start having problems in your relationship at some point? A. Well I didn't think, well I didn't think we had any problem in our relationship. Only that he was changing. You know like his, everything, his demeanour towards to me was changing, he was working a lot more than I thought maybe he should, but I didn't know what sort of hours of what shifts or anything, because I knew nothing about really what his work was, especially when he was in undercover, I wasn't allowed to know anything. So I never asked a lot of questions. But he was away a lot. He was - he wasn't affectionate to me, he wasn't - it was if he was distancing himself from me. He was moving away from me. That's what I felt. And I felt a little bit that it could have been my fault, but I really don't think that it was my fault." Mr Ower, for the Defendant, did not cross-examine this witness. I have no reason whatever to doubt her veracity. She has remained loyal to her former husband. She bore his second son, conceived after their separation, when the Plaintiff was visiting Vicki and Matthew, evidence of her continued loyalty to the Plaintiff. They had remained good friends, despite the Plaintiff's subsequent relationships.

Evidence of Mr Gary Raymond

Mr Gary Ernest Raymond was called in the Plaintiff's case. Before joining NSWP he had been trained as a paramedic by NSW Ambulance Service, He was attested as a probationary constable on 27 March 1972. He retired from the NSWP on 13 December 2005, having served as a police officer for over 33 years. In addition, he became a Salvation Army Officer in 1980. Since his retirement from the NSWP he was made a chaplain of his Police Post-trauma Support Group in 2007 and in 2008 was made a chaplain of NSW Ambulance Paramedics. In NSWP he was also a Peer Support Officer ("PSO"), and by the time he commenced working at Blacktown Police Station he was a Senior PSO. He gave this evidence about the role of a PSO: "Q. Could you just tell us what your role was as a peer support officer? A. Yes. It was known that the first contact of a traumatised or depressed officer was their peers because we had day-to-day contact, so our training included just the recognition of officers having difficulties and then referring them. Q. Did you undertake any diagnostic activity in that role? A. No diagnostic activity. Just simply recognising the recognition of officers that you knew and worked with was the key to peer support and then referring them on. They taught us basic mental health and - but not certainly as clinicians or counsellors. We simply were to recognise and refer. Q. I think Mr Morris wants to know, what were you taught to recognise in a fellow officer? A. Yes. Things like depression, anxiety, antisocial behaviour, detachment. Things of that nature where you noticed that the officer had changed in their behaviour. Had changed in the way they were interacting with their peers or their superiors. How they reacted at the scenes of critical incidents, particularly in recognition of the sensory stimuli. The sight, sound, smells and touches. We were taught to recognise suicidal ideation and so they were the main..(not transcribable).. taught to recognise and to enquire."
Mr Raymond served at Blacktown between 1983 and 1993. He reached the rank of sergeant and the position of detective in 1991. He gave this evidence of his interaction with the Plaintiff: "Q. When did you come to first meet Steve Wilson? A. It was around 1991. Q. Was that professionally or was it socially that you came to meet him? A. Just around the station environment and out on police calls and crime scenes or emergency scenes. Q. When you first met Mr Wilson, what was your observation of him in terms of the way he communicated and performed his roles? A. He was a good solid character and personality, eh wasn't introverted or extroverted. He was quite normal, a good listener and a good talker, took instructions from me and other senior police quite readily and quite effectively, and effectively, he was a very good police officer. Q. Over the time that you had dealings with him, did you notice any change in his demeanour or personality? A. Yes, I remember clearly, he's becoming very quiet and very I suppose you could term reserved, and he wasn't communicating as readily. He was getting crankier - I wouldn't describe it as angry, but he was just not tolerant and, and I noticed too that he was increasingly becoming depressed and what, what I call detached. That is, just not with it sometimes. Q. Did you make those observations at the Blacktown Police Station? A. Yes, I did, and out on calls as well. He became a little less responsive to directions and sometimes we'd have to reinforce a direction. Q. Did you notice any issues with focus and concentration? A. Yes, I did. I, I distinctly remember walking into the meal room, and he was sort of in a, I suppose describe it as a daydream and, and just looking sort of outwards and occasionally downwards and I had to say - I said to him, you know, words like, 'Steve, you all right?' and he sort of - he got startled and looked around and said, 'I don't know' and so I noticed that he was becoming more isolated from the team as in normally the meal room's not occupied during the day unless meal times because they're - people are investigating and out on patrol and doing other functions, and then they - so, Steve - I wondered why he gravitated to the meal room outside of meal times. Q. Do you recall any specific conversations you had with him at this time? OWER: I'd ask my learned friend to isolate the time, if he can? MORRIS: Okay. Q. At the time that you observed a change in demeanour, do you recall any specific conversations you had with him? A. Yes, I do. I would enquire one - on, on one occasion, I enquired, I said, 'How's things in your life, Steve?' and he sort of said, 'Okay', and I said, 'Is everything okay at home?' and I remember distinctly him saying, 'Not really.' He said his wife was - didn't understand the things he was going through, didn't understand the things he was going through, didn't understand he was emotionally and said he couldn't open up to her and talk to her at all, and I remember saying to him, 'Well, do you think you can go to your GP with your wife?' and he wasn't sure. Because in those days, there was no help by the police force in families. It was only serving officers or unsworn officers so you couldn't refer the family members to police psychologists, only serving police and so the GP was the only referral pathway that we could really do that. Q. After that conversation, did something happen that caused you to do something in terms of referral, and could you just tell his Honour about that? A. At one time, I said to him - I said, 'You look depressed, you know, you're down', and he, he said, 'Yes' and I said, 'Are you suicidal?' and he welled up with tears in his eyes and he said, 'Yes, Gary, I am.' And so then I said to him, 'Well you know, mate, you'll have to, you know, give me your gun and - because I don't want you using that to take our own life', and I recall either he handed it to me and I took it down and double locked it downstairs, put a normal padlock on and then a red padlock on top of that one. So - and then referred him to the police psychologist, Dr Westerink and - yeah. So that was - and other times, I just noticed he was quite in a depressive mood or melancholy, a sadness and, and he was reluctant to do a lot of duties although in those days, the culture was, you know, if you don't cope with the heat, get out of the kitchen or if you don't want to work here, we'll put you into an office somewhere doing exhibits or things like that." After that referral to Dr Westerink, Mr Raymond occasionally saw the Plaintiff "around the station environment" but in late 1993 was transferred elsewhere to work on the Gyles Royal Commission in the Building Industry Task Force. In cross-examination, Mr Raymond said that he first started to notice the change in the Plaintiff in 1991 (T168.41).
I have no reason at all to doubt either the honesty or accuracy or reliability of Mr Raymond's evidence.

Significance of the Plaintiff's seeing psychologist in 1991

One could be forgiven for thinking that the need for the Plaintiff to attend upon Dr Westerink in 1991 was because of the breakdown of his marriage with Vicki and his attempt to commence a new relationship with Tanya, which proved not only unsuccessful but also disastrous. Dr Michael Diamond was called in the Plaintiff's case. Mr Ower, for the Defendant, commenced his cross-examination of the Doctor in this way: "Q. Marriages can break down in the absence of any underlying post-traumatic stress disorder by either party, can't they? A. Of course. Q. And marriage breakdowns are themselves intrinsically capable of causing emotional upset, correct? A. Yes. Q. And indeed when you add to the mix infidelity in the relationship, that can cause great upset can't it? A. Yes."
However, the Plaintiff's case is that his relationship with Vicki broke down because of his suffering the symptoms of PTSD. In chief, Dr Diamond gave this evidence: "Q. The second question I have is if an officer is experiencing such symptoms and is continuing to be exposed to traumata, is their ability to engage in ordinary domestic relationships impaired, usually? A. We've got - and a strong association between the global performance of the injured police officer, including their engagement in domestic responsibilities and relationships, that come from the expense of trauma-related illness, such as post-traumatic stress disorder, because it goes to the direct issue of emotional shutdown, the pursuit of emotional numbing, behaviours that are designed to distance that person from engagement and emotional experience of all... (not transcribable).. including domestic interactions. The, the clinical picture is often one where spouses will complain that their partner doesn't relate to the family, is distant from family, is reluctant to engage in family activities, is not interested in the physical relationship; there's a whole host of symptoms that arise as a result of the trauma-related illness that is often observed, and often leads to breakdown of relationships or marital problems, and a whole series of other complications such as self-treatment with alcohol, being one example." In cross-examination the Doctor said this: "Q. But if you leave aside the history you received from Mr Wilson and you just looked at the bare record of the five consultations and the two telephone calls with Jan Westerink in 1991, that emotional upset leading to suicide can be equally explained in terms of domestic upheaval, can't it? A. It could be explained by domestic upheaval, but in the rawest context looking at the longitudinal history, I wouldn't support that view because what it really does do is it signals the outset and then it is confirmed subsequently by a whole lot of further information from Mr Wilson himself but also as it turns out in the transcript of the evidence from others that he was suffering significant psychiatric symptoms linked with post traumatic stress disorder in the subsequent years. So, to simply put the question that in 1991 it could've meant he was just responding to marital crisis, I'll agree that he could've been but looking at the whole picture, I think that's a less likely interpretation in the, in the context of the longitudinal history. Q. Isn't that looking at 1991 and the records through the prism of what happens later? A. Well, what else can we do? I mean, I wasn't there in 1991. I mean, it's always fair to be through the prism of the retrospect, but there is evidence of what did occur, and one can map the presence and the worsening of those symptoms as they deter themselves. Q. In November 1996-- HIS HONOUR: Excuse me, Mr Ower. Before we leave 1991, I just want to ask the doctor a question about this because it intrigues me. Q. You say that one of the effects of PTSD is that it causes emotional numbing, and that emotional numbing can cause essentially an estrangement between husband and wife in the breakdown of a relationship. Correct? A. Yes, your Honour. Q. If one reads the notes taken on 9 July 1991 by Ms Westerink, why if he is emotionally numb does he start having an affair with another woman causing him to leave his wife? A. Your Honour, the emotional numbing is to numb against the unpleasant traumatic distressing feelings and finding comfort in the arms of another woman is the antidote to those feelings. So, it's a pursuit of distraction, numbing behaviour, anything to distance from the distress. Numbing doesn't mean simply global numbing. It's, it's to do with numbing against the distressing underlying emotions and it's not uncommon at all for distressed injured traumatised individuals to distract themselves with other relationships or sexual activities or gambling or other very engaging activities but that nevertheless cause an emotional numbing." Essentially Dr Diamond's opinion was that Dr Westerink was only dealing with the crisis at hand, rather than its underlying cause which, with the benefit of hindsight could only have been PTSD.
Having carefully examined the evidence of Vicki Wilson and Mr Raymond, I am persuaded that Dr Diamond's opinion ought be accepted. The Plaintiff appears to have left Vicki and moved in with Tanya in early June 1991 or mid May 1991, having been working at Blacktown in general duties for either 15 or 14 months. Vicki noticed the change after "a little while", "over a period of months" from 18 February 1990. I accept therefore, that when the Plaintiff first presented to Dr Westerink he was suffering from a then undiagnosed PTSD precipitated by traumatic events to which he was exposed in Blacktown after 18 February 1990.

Attendances on Police Psychology Unit in 1993

In 1993, the Plaintiff attended the Psychology Unit twice. On the second occasion he saw Dr Westerink, but whom he saw on the first occasion is unknown to me. The coversheet for these notes tells me that the Plaintiff referred himself to the Unit because of an IA enquiry. I now set out these notes:

24 November 1993

Several sources of current stress:
- exams (now over)
- IA enquiry re sexual assault at Blacktown re statement - charge of misconduct laid.
- moved house last week.
- ex wife Vicki - 4 year old and 4 month old boys - misses them, sense of loss… family/kids
- number of SIDS incidents recently.
- poor relationship with parents

Positives exercising talks to friends or a PSO support from boss

Action counselling; issues "fairness"; loss and grief away from family. Will re contract if needed. Case closed.

22 December 1993

can't sleep, wakes around 3.00am and can't sleep, wakes with headache believes his hands are not as steady becomes angry very easily. Blood pressure up 145/80 Irritable most of the time (frustration) re work Misconduct charges Many critical incidents in few years doesn't feel like going to work - feels tired most of the time, overeating a lot, sometimes feels like crying, appetite up weight up Considering leaving Force - been in since 1982 1. will reapply for management course and 2. will take a wait and see attitude to jobs. 3. Continue working on settling down with Vicki/stability 4. Start eating properly. 5. To gently blow his own trumpet about his successes.

Significance of the Plaintiff's seeing psychologists in 1993

As to "exams", it is to be noted that the Plaintiff was studying externally and completed a number of courses between 1993 and 2000. He completed a number of courses thereafter, but these are not currently relevant. The relevant courses were: 1993 Certificate of Management Blacktown TAFE 1998 Master of Commerce, Workplace Relations University of Western Sydney 1999 Certificate SAP/R3 Integrated Business Symptoms University of Western Sydney 2000 Statement of Attainment Workplace Training University of Technology 2001 Master of Business Administration Charles Sturt University
As to the "IA enquiry", I raised this issue at [27] above in reference to event G, murder of a sexual assault victim. In his oral evidence, the Plaintiff only mentioned one specific sexual assault, event G. A briefer description of this incident is recorded by Dr Jeff Bertucen, Consultant Psychologist in his report of 31 October 2019, p. 3, and a description of it was also recorded by Dr. Michael Diamond in his report of 30 August 2021, in the second and third paragraphs of p10. Neither doctor, however, linked the event to an IA investigation. However, Dr Diamond does record a history of another allegation of sexual assault linked to an IA Investigation. On p8 of his report, the following is recorded: "He went on to tell me about the incident involving the Internal Affairs investigation of him. He was investigated for allegedly telling an untruth and influencing the outcome of an investigation of an allegation of sexual abuse by a civilian worker within the police environment. There was no basis to these allegations but they held up his promotion for a period of over three years. The outcome was delayed to the extent that it caused him added trauma over and above the effects of many other traumas that he had experienced in the course of his duties. The experience significantly undermined his ability to trust his employer and especially his senior officers. Mr Wilson then spoke about being approached by a senior officer, Christine Nixon (who went on to become a Deputy Commissioner in NSW and subsequently Commissioner of Police in Victoria) who contacted him about the wrongful charge and that he was in a position where he could have sued the employer. Her approach was to support him in gaining additional tertiary qualifications. She said she would place him in a specialist environment and support him in pursuing tertiary qualifications in human resources studies." On p 9 he recorded this: "During these years in about 1990, Mr Wilson was subjected to the Internal Affairs inquiry. He described how this occurred. He was working at Blacktown where it was alleged that a police officer had sexually assaulted a civilian worker who was an employee. This was said to have occurred at a party. Mr Wilson said he was asked for information about the woman who had made the allegations. He had described her as being 'a bit loose'. He was then charged with telling a lie. The case was dismissed by the Judge but there was no ultimate resolution for about three to four years. The significance of this experience was explained by Mr Wilson. It left him feeling insecure and unsafe within the police environment. There was no overt support of him and no acknowledgement that he was subjected to the prolonged stress of the unresolved investigation. It did however result in support from Ms Nixon who assisted him with an alternate career pathway at that time." Under Evidence Act 1995 s 60, those histories are some evidence of the facts recorded in them. No objection was taken on behalf of the Defendant as to the admissibility of any parts of Dr Diamond's report, nor was any qualification of their use sought. I have reached the conclusion that the better view is that the histories recorded by the Dr Diamond relating to the IA Investigation should be accepted, rather than linking that investigation to event G.
The complaints recorded by the police psychologists in 1993 are consistent with the Plaintiff's continuing to be exposed to psychic traumata ("number of SIDS incidents recently", "many critical incidents in few years") and suffering symptoms consistent with PTSD.

Attendances on Police Psychology Unit in 1996 and 1997

The Plaintiff attended upon a third police psychologist in late 1996 and early 1997. I now set out the notes made then:

7 November 1996

Steve Wilson approached me in a disturbed state at the PSO Conference [held at the Police Academy, Goulburn]. In 1995 he had been handling a sexual assault complaint and had been arranging an AVO for the victim. The offender had made threats to the victim. Steve had sent her home after doing the paperwork, but hadn't told the Shift Supervisor of the threats. That night the offender murdered the victim by disembowelling her. The offender was apprehended and placed on trial in November 1996. Steve had no apparent reaction to the incident until a month before the trial date, at which he expected to give evidence. In the event, the offender pleaded guilty and was convicted on 6 November 96 without Steve having to appear. Steve reported that for the last month he had been having recurring, intrusive thoughts about the murder. He vividly sees the victim sitting before him and shaking as she relives the circumstances of the sexual assault and her fear of her life. He also continues to see the photos of her disembowelled body. He has migraines about the killing and wakes with an anxiety response and is unable to return to sleep. He feels that he could have done more to protect her and perhaps that would have saved her. He didn't tell his Shift Supervisor of the threat and feels that if he had, then perhaps random patrols past the girls' home may have warned off the killer before he could harm her. He has also recently been suffering from study pressures and exam anxiety, Encouraged him to ventilate/tell his story, with validation where appropriate. Reassured him that he was not going mad and advised him about PTSD symptoms. Challenged the "if only" self talk. Educated him in stress/anxiety techniques, response management, relaxation/breathing techniques and sleep techniques. Will follow up in 3 weeks

8 January 1997

Contacted Steve by phone. He has only had one dream since I last saw him and that was a mild one. He no longer has problems with recurrent thoughts of the murder. No further action.

Significance of Plaintiff's seeing psychologist in 1996/97

The first thing to note is what I discussed at [27] and [55] above. If I be correct in my conclusion at [55] then the history recorded by the psychologist on 7 November 1996 conflates two different events. My difficulty in fact-finding has been compounded by the Plaintiff's agreeing to almost all of what was recorded on 7 November 1996 and 8 January 1997 at T37.17 to T39.31. Despite that concern, I find it completely understandable that the psychologist recorded on the coversheet for those notes merely "PTSD".

Transfer to Kings Cross

The cover sheet which I just mentioned records, erroneously, that the Plaintiff was working in the Prospect Patrol of the North West Region, indicating some confusion on the part of the psychologist or his administrative assistant. On 3 February 1996 the Plaintiff had been promoted to the rank of sergeant and was posted to Kings Cross as a general duties shift supervisor. At some stage whilst the Plaintiff was stationed at Kings Cross, he was seconded to Police Headquarters to do some work for Assistant Commissioner Christine Nixon in "human resources" in connection with the Wood Royal Commission. That is referred to by Dr Diamond in the histories I set out at [55] above. For how long that secondment lasted is unclear. In a curriculum vitae current in 2009 the Plaintiff recorded this: "NSW Police Force Human Resources Planning @ Policy Project Manager January - December 1997." However, he was performing General Duties on 30 December 1997.

Knee injury 30 December 1997

On Tuesday 30 December 1997, the Plaintiff again injured his left knee in the course of his duty. His claim for hurt on duty benefits dated 30 December 1997 describes the event thus: "Chasing an offender after a break enter and steal. Whilst patrolling Darlinghurst road offender [redacted] ran into Victoria Street and then up the stairs in the Capitol Hotel Mall as I got to the top of the stairs. I fell heavily onto my left knee causing sever[e] pain. I got up and continued the foot pursuit and then assisting Cons. Blanchard with the arrest of one offender. Upon returning to Kings Cross Police Station the pain became worse and I attended Sydney Hospital and was treated by Dr Virgona who advised that I attend my local doctor."
His local doctor remained Dr Michael Johnston (see [16] and [17] above). He again referred the Plaintiff to Dr Michael Johnson. The further treatment afforded to the Plaintiff by Dr Johnson is summarised thus in his report of 25 May 2000: "He was next referred back to see me on the 22 January 1998 by the same referring doctor. He was then aged 38. He had a fall in the course of his duties at work on the 30 December 1997 landing directly on his left knee. It was very painful, swollen and bruised in front of the patella. His General Practitioner arranged physiotherapy. He improved by 60% only. He was still working at light duties only when he was referred complaining then of pain and increasing since the injury, worse on steps, clicking with associated sharp pain. Clinical examination of the left knee then revealed marked patella-femoral crepitus in a swollen knee with a markedly positive Osmond Clark test. An arthroscopy and lateral release of his knee was carried out on the 24 February 1998. At this arthroscopy he had marked chondral damage to the lateral facet of the patella and lateral patella subluxation and compression. These areas were dealt with arthroscopically along with a lateral release. Post-operatively he continued with physiotherapy and was reviewed in March, May and June 1998. His symptoms had plateaued. They were not then further improving. A bone scan showed moderately active patella-femoral arthropathy with a synovitis in the rest of his knee. Anti-inflammatories and physiotherapy continued. During this period he remained unfit for work and continued unfit for work until he had a further arthroscopy in November 1998 which showed increasing degenerative change on the medial side of his patella and the medial femoral condyle, This pathology developed since his injury and since the last arthroscopy. Video print outs on both occasions are in the patient's possession. Appropriate arthroscopic debridement was carried out. Further physiotherapy then continued. In view of the femoral condylar damage and his lack of progress during 1999 he came to an arthroscopy and mosiacplasty in June 1999 with transfer of normal bone cartilage to fill the defect in the medial femoral condyle. Video print outs of that procedure and pathology are also in the patient's possession. Post-operatively he developed a DVT which had to be treated. He continued to see me through the rest of 1999 in the months of July, August, September and October. He continued physiotherapy. His symptoms are gradually decreasing though they would fluctuate. Muscle wasting took a long time while to improve and also the effusion in his joint took a long while to settle down. An MRI of his knee in October 1999 sowed that the mosiacplasty graft was taking well. He still had some cartilage loss of the retro-patellar surface." Dr Johnson further treated the Plaintiff in 2000 i.e. after his medical discharge from NSWP. That treatment will be discussed later.
After the operative treatment on 24 February 1998, attempts were made to have the Plaintiff return to restricted duties. The Plaintiff came under the overview of Ms Beverly Ryan, a Rehabilitation Officer of the Rehabilitation Section of NSWP's Health Services. On 7 July 1998, Ms Françoise Cleret, Manager of Kings Cross LAC advised Ms Ryan that her LAC could provide to the Plaintiff a "long term non-operational position" to the Plaintiff: "The position will involve the collection, recording, storage and culling of briefs of evidence for the… LAC. This position will not involve custodial duties, will provide the opportunity for Sergeant Wilson to sit or stand as decided and will not involve first response work In addition we have been able to provide a parking-spot for Sergeant Wilson during his rehabilitation period."
On 17 September 1998, Ms Ryan told Dr Johnston, GP, about this restricted work. Dr Johnston wrote this reply on 2 October 1998: "Thank you for your letter dated 17 September regarding this patient. Steven is concerned about the lack of future prospects and development with regards to the position offered, and feels the duties are demeaning. For an officer with over nineteen years operational experience, who has a masters Degree and is a university graduate who has been involved in teaching etc. As you know, the physical, and mental wellbeing of the patient are equally important, and I feel we need to do as much as possible to maintain Stevens self esteem, confidence & enthusiasm. He also gave me permission to document that he requires further arthroscopic surgery on his left knee next month, and is unlikely to return to operational duties due to limitations with regards to walking & stairs etc. We are therefore looking at a long term position(s) within the force involving non operational duties, hopefully one that's able to extend him mentally, and make use of his varied skills and experience. He mentioned a co-ordinators position within the OH&S Section which sounded like a more suitable position given his skills and experience, and I would appreciate your thought in Stevens situation." The Plaintiff was cross-examined about this job offer and agreed with Dr Johnston that this position was infra dignitatem suam (T83). NSWP appears to have accepted that and he remained in the police payroll.

Attendance on Police Psychology Unit from 1998

On 21 January 1998, whilst off duty on account of his knee injury the Plaintiff was visited at home by police psychologist Ms Wendy McCartney. The coversheet for her notes has this synopsis: "Domestic Relationship Issues". In 1995, the Plaintiff appears to have commenced a relationship with a lady named Jayne. That relationship persisted until 2018. She had four children from an earlier relationship. The Plaintiff became their "step father". There was some tension in the relationship between the Plaintiff and Jayne and between the Plaintiff and her children at times. The psychologist recommended counselling therapy. There are some other undated notes about the same issues. They shed no particular light on the subject of PTSD, other than speculation as to whether any symptoms of that condition may have affected the relationship.

Medical Discharge

On 27 October 1999 the Plaintiff made an application to NSWP for secondary employment. That application succinctly sums up what occurred after 30 December 1997. After describing the Plaintiff's left knee injury on that day, the application continues thus: "As a result of the injury it was discovered that I had dislocated my knee and required surgery to repair cartilage and ligament damage to the knee. This occurred on the 24 February 1998, rehabilitation commenced shortly thereafter. In November 1998 my treating surgeon stated that further major surgery to the knee was necessary to correct a fault within the knee this required the cutting of a major tendon within the knee and further surgery on cartilage this occurred on the 13 November 1998. Unfortunately due to continuing problems with the knee a third major operation was necessary to graft bone and cartilage in an attempt to repair the injury. As a result of this operation I developed complications in the form of a deep vascular thrombosis (blood clot) which required a lengthy stay in hospital and constant medication and monitoring by way of blood test every second day. These tests continued for three months and at present I am still required to attend for regular checkups by my local G.P Doctor Johnstone. During this process I had constant contact with the Beverley Ryan of the rehabilitation unit informing her of the progress of my surgery and treatment. On the 19 June 1998 I attended the Police Medical Officer Doctor Sharp for a review of the progress. As a result of this consultation I was advised that due to the extensive damage to the knee and that further surgery maybe necessary, it was suggested that I find a non operation position suitable to my experience and qualifications (Masters Degree in Commerce). If a position were unavailable he would recommend a medical discharge hurt on duty. This was noted on my medical file. I then had a further consultation with Doctor Sharp on the 2 March 1999 where he noted the problems associated with the knee and stated that I would not be returning to operational duties. This has also been stated and recorded by my local GP Doctor Michael Johnstone, my Orthopaedic Surgeon Doctor Johnson and an independent Orthopaedic Surgeon Doctor James Sullivan. After the surgery in June of 1999 Beverley Ryan informed me that I would most probably be discharged from the service medically unfit hurt on duty due to the injuries sustained and consequent surgery to the knee and the fact that I was to be classified as permanent non operational. In mid August 1999 Ms Ryan informed me that the Service had commenced proceedings in relation to discharging me from the service. On the 27 August 1999 I received official correspondence informing me that the Police Service were lodging an application for medical discharge, I signed the appropriate notification of application this was then returned by way of fax to the service. I then received further correspondence dated the 14 September 1999 formally informing me that the Service had accepted the opinion of the medical officers and that arrangements were in progress for me to be medically discharged. COMMENT: As a consequence of the consultation with the PMO Doctor Sharp in June 1998 I applied for three positions within the service these being with the Assessment Centres, the Occupational Health and Safety Unit and the Human Resources and Development SAP/R3 project. Unfortunately I was unsuccessful with two positions and received no correspondence about the third. Upon being informed in August 1999, that I was to be medically discharged I commenced to search and apply for positions outside of the Police Service. The positions applied for were in the areas of human resource office administration, and training. In September 1999 I gained an interview with an organisation in the maintenance and construction of railways within Australasia. In late September 1999 I was informed that I had been successful with the interview and that I would be required to attend an assessment centre in early October 1999. As a result I was successful at the assessment centre and was offered a position as a Human Resource Administrator. I now wish to formally apply for secondary employment approval whilst waiting to be medically discharged. I fully understand that until the finalisation of this process I am still a member of the Police Service and will adhere to my obligations whilst a member. I have contacted Senior Sergeant Joe Mey Human Resource Manager for the Officer of the Assistant Commissioner who is aware of my situation. Sergeant Mey has informed me that there are two possible options whilst awaiting discharge. The first is to allow me to take all my annual leave the second is to allow me to take leave without pay. I have also contacted the Police Association and spoken to Cheryl Malouf in relation to this matter."
In early 1999, the Plaintiff consulted solicitors, Messrs Taylor and Scott. He saw Mr Ray McClenahan, a Personal Injury Accredited Specialist. On 8 April 1999 Mr McClenahan wrote to NSWP enclosing an application by the Plaintiff under the Freedom of Information Act 1989 requesting the provision of "All medical reports, certificates and Personal file" of the Plaintiff, and the Plaintiff's cheque for $30. The information was provided by NSWP on 3 May 1999. On 9 July 1999 Mr McClenehan wrote to "Workers Compensation Claims Section" of NSWP a letter the substance of which is this: "We would like to put you on notice that our client intends making a claim pursuant to Section 12D of the Police Regulations Superannuation Act in respect of injuries that he suffered to his left knee whilst in the course of his employment as a police officer in 1992 [sic, scil. 1994] and again on 28 December 1997. Our client has recently undergone surgery and we are therefore not able at this stage to quantify this claim. We simply wish to record the fact a claim will be brought, we anticipate a little later on this year."
On 6 August 1999, Ms Ryan prepared a "Submission for Medical Discharge" of the Plaintiff and sent it to the Medical Discharge Coordinator. The substance of the document is this: "Sergeant Wilson was initially referred to the Rehabilitation Section on 5.8.94 following an injury to his left knee on 27.7.94 when he was kicked by an offender - an arthroscopy and chondroplasty was performed. The officer returned to work on full time non operational duties commencing 16.10.94 following review with Dr Sharp, Police Medical Officer, on 16.9.94. The officer underwent further surgery on 18.1.95 and a further attempt to return to work on full time non-operational duties from 20.2.95. The Police Medical Officer certified the officer fit for full operational duties, effective from 29.1.96 and his Rehabilitation file was closed. A second referral to the Rehabilitation Section was received on 26.2.98. The officer was complaining of increasing pain to the left knee and further surgery was organised by his treating doctor for 24.2.98. As a result of the surgery Sergeant Wilson underwent extensive daily physiotherapy over several weeks. Following review with the surgeon, Dr Johnson, on 11.5.98, Sergeant Wilson was certified unfit to return to work following ongoing problems with the healing process. Physiotherapy continued. The Police Medical Officer certified him permanently non-operational on 02.03.99. Sergeant Wilson's treating doctor is of the same medical opinion. Duties were identified at Kings Cross Local Area Command for the officer whilst on long term restricted duties. However, Sergeant Wilson's treating doctor continued to certify him unfit for any police duties. Several more surgery procedures have been performed between November 1998 and June 1999. Further medical complications were experienced, the last being a blood clot to the left leg. Medical discharge options have been discussed. The officer is classified as 'long term sick'. Sergeant Wilson states he is happy for the Service to submit him for medical discharge. The officer states that he has made the necessary inquiries with the Police Association in relation to his entitlements resulting in being boarded out medically unfit as a result of being injured whilst on duty. Sergeant Wilson continues to be monitored on a regular basis by his treating practitioners and has been medically certified to 26.08.99. He has an appointment with Dr. Tomlinson, Vascular Surgeon on 16 September 1999. Rehabilitation intervention is not considered appropriate at this stage."
The Plaintiff signed and dated a "Notification of Application for Medical Discharge" on 27 August 1999. The substance of this document is this: "I acknowledge that an application for my discharge from the Police Service, on medical grounds, is being lodged with the Police Superannuation Advisory Committee by the Police Service. I have been advised by the examining Police Medical Officer that the following clinical conditions are relevant to this application. Those I claim as duty related are indicated. Clinical Condition APPLICANT TO INDICATE 'CLAIMED' OR 'UNCLAIMED AS DUTY RELATED. Left Knee CLAIMED AS HOD NO: 20149/3 DUTY RELATED"

The Plaintiff admits that he signed and dated this document and provided in his own hand other identifying details and printed full name, registered number, contact address and telephone number (T46.09). He said (at T46.23) that the matter "Claimed as HOD No 20149 duty related" might be his writing. He denied that the handwritten words "Left Knee" were his handwriting. However he also said, in cross-examination, that he signed a "blank form" (T75.40) but that could not be correct if he inserted "Claimed as HOD etc" as appears to me to be likely. In any event, the Plaintiff went on to say this: "Q. But you knew at the time you signed that document that the only condition that was being considered for your being discharged was your knee condition, correct? A. That's correct, your Honour, yes."

The next document, in chronological order, is the Plaintiff's application for secondary employment which I quoted at [67] above. That application was approved. The date of one of the two approving signatures is 8 November 1999. One of the documents exhibited in these proceedings is a submission by Mr Arthur Crellin, the then Medical Discharge Coordinator, inter alia, that records that the Plaintiff had been on sick report since February 1998 and that the Police Medical Officer ("PMO") certified the Plaintiff as being permanently non-operational on 2 March 1999.
On 29 March 2000 PSAC certified that the Plaintiff was incapable of discharging the duties of his office as sergeant of police on account of the infirmity of "chondromalacia patellae left knee". One of the documents exhibited is a summary of decisions made by PSAC on 29 March 2000 in relation to medical discharge. Some of the other conditions certified by PSAC for other members or former members of NSWP included: Adjustment disorder with anxiety and depression PTSD Recurrent symptoms of anxiety and depression Adjustment disorder PTSD Major Depression Generalised anxiety disorder, major depression disorder Adjustment disorder with anxiety and depression Major depression disorder, PTSD and generalised anxiety disorder Generalised anxiety disorder and Major depressive disorder PTSD
On the same day, the Defendant wrote to the Plaintiff advising him of the decision of PSAC and providing this "advice": "You may dispute this decision under section 67 of the Superannuation Administration Act 1996. If you want to dispute the decision please let me know in writing within 28 days of the date of this letter, I will then refer your dispute to the trustee's disputes committee with any other relevant material that you want it to consider." That "advice" was incorrect: SAS Trustee Corporation v Rossetti [2018] NSWCA 68. The correct advice was that if the Plaintiff considered himself aggrieved by the decision of PSAC he could, within 6 months of notification of the decision make an application to the Compensation Court of NSW. The Plaintiff, although represented by a specialist solicitor, made no application to the Defendant's disputes committee, nor to the Compensation Court, whose jurisdiction under the Act has now been transferred to this Court.
As I mentioned in [1] above, on 4 April 2000 the Commissioner of Police, by his delegate, certified that the suffering by the Plaintiff of the infirmity certified by PSAC was caused by his having been HOD, a term defined in sec. 1(2) of the Act. He was then medically discharged on 6 April 2000. He commenced to receive the basic HOD pension on 7 April 2000. The salary of the Plaintiff's office on 7 April 2000 was $57,693.00. 72.75% of that is $41,971.66. However, there was an annual benefit reduction rate for post 1 July 1988 service which reduced the pension to $40,721.07 which is 69.72% of the salary of the office of sergeant of police. The Defendant advised the Plaintiff of the quantum of his police pension by letter dated 18 April 2000. That letter drew the Plaintiff's attention to s10(1A) of the Act, which provided for increases in the basic police pension. The Plaintiff did not avail himself of that provision until his application under s10(1A) which the Defendant received on 27 March 2017.

Treatment after PSAC certification

The Plaintiff attended upon Dr Michael Johnson for review of his left knee in 2000. The final part of his report of 25 May 2000 is this: "He continued to see me in this century in January, March and May. He had been boarded out of the police service in the Christmas New Yeah period. He still had some discomfort and swelling in the knee with walking and on steps and eleven months since his knee mosaicplasty he still has some pain controllable with Naprosyn. There is slight retro-patellar crepitus but one inch persisting quadriceps wasting. A muscle building programme is to continue during the rest of this year. COMMENT This patient has had several injuries to his knee all at work. The incident in 1997 is the main culprit as far as the current disability goes as his main pathology over recent months is related to the medial patella facet and femoral condyle. He does have a permanent disability in this knee. Degenerative changes could develop further as the years go on. His disability at present amounts to a 25% loss of function of the left lower limb at and above the knee. He is permanently unfit to be a policeman."
A report of Dr Robin Mitchell, occupational physician, qualified by the Defendant, dated 23 August 2017 refers to certain records which might point to treatment of the Plaintiff between his medical discharge and Dr Mitchell's examining him on 17 August 2017 re his left knee injury on 30 December 1998. Those records are: 2 March 2010 cervical spine X ray 17 February 2012 lumbar spine MRI 14 February 2012 report of W. Ambrose, chiropractor 23 February 2012 report of Dr C. Forsyth, haematologist 29 April 2014 report of B. Webster, exercise physiologist 17 July 2014 report of L Kippist, chiropractor None of those reports or associated records are in evidence.
On 28 October 2009 the Plaintiff commenced to attend upon the Wyong Family Practice for treatment. Prior to 13 December 2010, the Plaintiff attended upon that practice on these occasions for these reasons: 29 October 2009 - runny nose, sneezing, coughing but generally well. A nasal spray was prescribed and blood test ordered. 11 November 2009 - "Lump(s); neck - long standing sore throat…. Chronic cough." An ultrasound of the anterior neck was ordered. 2 March 2010 - trapezius strain after hyperextending his neck in a gymnasium 3 weeks earlier. This led to an order for a cervical X ray, probably that referred to in [76] above. 25 March 2010 - skin check up a history of a diagnosis of a basal cell carcinoma in the right ear "removed about 10 years ago". The records also say "1997". The trapezius strain on the right side was also mentioned. 19 May 2010 - Skin tags in both axillae. These were excised by cautery. Other than records relating to the assessment of the loss of efficient use of the Plaintiff's left knee, there is no other medical evidence before me in respect of the period 6 April 2000 (medical discharge) and 12 December 2010, a period of ten and a half years.

S12D gratuities

Section 12D of the Act provides for the payment of "gratuities" to police officers who were contributors to the Police Superannuation Fund, equivalent to benefits available to injured workers under Workers Compensation Act 1987 ss 60, 66 and 67. By letter dated 20 July 2000, Mr McClenahan of Messrs Taylor & Scott made a claim on behalf of the Plaintiff for: "$18,750 - 25% permanent loss of the left leg at or above the knee $15,000 for pain and suffering representing 30% of the [sic] most extreme case." These claims were referred by the Defendant to PSAC. On 29 November PSAC approved a payment for 22.5% loss of the left leg at or above the knee. On this occasion, the Defendant advised the Plaintiff of the correct "appeal" mechanism in its letter of 20 December 2000, which enclosed a cheque for $16, 875.00. That letter enclosed a questionnaire which it asked the Plaintiff to complete regarding his claim for pain and suffering.
The completed questionnaire was sent to the Defendant which received it on 12 April 2001. The document is 3.25 pages long and closely typed. I shall only reproduce three of its sections: "Has my self esteem been affected by my injury: During this process, I had constant contact with the Beverley Ryan of the rehabilitation unit informing her of the progress of my surgery and treatment. On the 19 June 1998 I attended the Police Medical Officer Doctor Sharp for a review of the progress. As a result of this consultation I was advised that due to the extensive damage to the knee and that further surgery maybe necessary, it was suggested that I find a non operational position suitable to my experience and qualifications (Masters Degree in Commerce). If a position were unavailable he would recommend a medical discharge hurt on duty. This was noted on my medical file. I then had a further consultation with Doctor Sharp on the 2 March 1999 where he noted the problems associated with the knee and stated that I would not be returning to operational duties. This has also been stated and recorded by my local GP Doctor Michael Johnstone, my orthopaedic Surgeon Doctor Johnson and an independent Orthopaedic Surgeon Doctor James Sullivan. As a consequence of the consultation with the PMO Doctor Sharp in June 1998, I applied for three positions within the service these being with the Assessment Centres, the Occupational Health and Safety Unit and the Human Resources and Development SAP/R3 project. All of these positions were advertised positions. Unfortunately, I was unsuccessful with two positions and received no correspondence about the third. At this point, I was informed that I had no skills, which the service could use anymore despite the fact I had a Masters degree in Human Resources and had commenced a Masters degree in Business Administration. At this point my self-esteem was severely affected to the point whereby my G.P Doctor Michael Johnston on the 2/10/98 wrote to Beverly Ryan my rehab officer informing her of the need to maintain my self-esteem, confidence and enthusiasm and the need to find a suitable position requisite to my level of experience and qualifications. During this time I would say that I was very depressed at the situation of being discharged from the service and that my skills, experience, knowledge and qualifications were not considered important enough to be of any assistance to the service this as already stated was very distressing. I had spoken to my G.P on a number of occasions about this. … Quality of life: Since the injury has occurred my whole quality of life has changed I am no longer as active as I once was and I in actual feel as if I have become old before my time even though I do try and attempt to be active. Being only forty one and having been an active person all my life I am finding it extremely difficult to adjust to not being able to do the things I was able to do even three years ago. On occasions I get depressed at not being a Police Officer anymore as this was to coin a phrase 'my life' it was who I was for eighteen years. Personal Relationships: To a certain extent the injury has affected my personal relationships. This comes in form of depression at no longer being in the Police Service. As a consequence I tend to become reclusive and won't talk or I tend to argue. This has caused a great strain upon my relationships not only with my partner but also with friends who try and help." The Plaintiff then gave the names and addresses of both Dr Michael Johnston and Dr Michael Johnson.
Despite what the Defendant's "Received" stamp indicates, on 30 March 2001 the Defendant approved the Plaintiff's claim of $15,000 for pain and suffering and forwarded a cheque for that amount to Messrs Taylor & Scott, advising them of the correct "appeal" mechanism. The Plaintiff made no application to the Compensation Court.

Subsequent employment to 2012

In 2009 the Plaintiff made an application to Wyong Shire Council ("WSC") for the position of Workforce Development Manager. That application was comprised on a 1 page covering letter, an 8 page detailed application, and a 6 page curriculum vitae. The latter document enables one to document chronologically the Plaintiff's employment history after his career in NSWP.

October 1999 - September 2000

Rail Services Australia: Construction and Maintenance. Workforce Planning Major Operations This was the job which the Plaintiff received permission from NSWP to undertake whilst he was still a member of NSWP. The Plaintiff was made redundant when Rail Services Australia amalgamated with another organisation.

January 2000 - May 2000

Campbelltown TAFE Contract Teacher. This job was obviously concurrent with the job at Rail Services Australia. The Plaintiff was teaching in areas of "Human Resources"

June 2000 - November 2000

Australia Graduate School of Management in conjunction with Granville TAFE This was work as a tutor (T51.08)

January 2001 - June 2001

University of Western Sydney Contract Lecturer This work was in Employment Relations

June 2001 - October 2001

Fairfax Community Newspapers Group Human Resources Manager. The Plaintiff was required to work with Fairfax staff in NSW and Victoria. The Plaintiff claimed that he made these "Achievements" in this employ: "- Successfully negotiated Media, Entertainment and Allied Arts Union (MEAA) enterprise agreements for New South Wales and Victoria. Effectively negotiated disputes ensuring dispute avoidance procedure were followed and complied with State and Federal Awards Successfully implemented recruiting strategies ensuring consistent and equitable selection procedures across the group. Introduced salary review methodology and budgeting for staffing through workforce planning Successfully introduced Occupational Health & Safety and Workers Compensation Policies and Procedures establishing environmental risk management methodology. Successfully redesigned salary system to ensure retention and equity."

January 2002 - March 2004

Central Sydney Area Health Service Director of Human Resources The Plaintiff was dealing with the Royal Prince Alfred Hospital campus, Balmain Geriatric Hospital and the Department of Forensic Medicine at Glebe. The Plaintiff claimed these achievements: "- Redesigned recruitment and selection procedures ensuring performance were interlinked with performance management tools, as well as reducing recruitment time by 12% - Successfully developed budget planning for departments reducing overall costs by 6% - Successfully restructured Food Services reducing staff by 25, with no industrial action- reduced costs %500K per annum. - Developed and implemented strategies to reduce overtime by 20% - Reduced Casual staff by 5% overall saving $600,000. - Reduced advertising expenditure by $90,000 to targeted advertising utilising internet and overseas agencies. - Introduced Job Evaluation Form with Job Performance Criteria, which correlated with performance appraisals. - Introduced salary review methodology. - Successfully integrated Nursing and Medical Human Resources into mainstream Human Resources creating consistency with human resource processes. - Implemented Human Resource reporting systems identifying key Performance Indicators allowing for Strategic Executive decisions. - Successfully implemented Human Resource file management system in compliance with Privacy Act, and New South Wales Government Regulations. - Introduced performance management scheme. - Introduced budget reporting systems for managers reducing overall costs."

March 2004 - March 2005

Virgin Blue Airlines Sydney Human Resources Manager.

October 2005 - November 2005

WorkCover NSW Contract Employee Relations Officer

December 2005 - March 2006

Northern Sydney Central Coast Area Health Service Contract Human Resources Consultant/Change Agent

May 2006 to May 2008

Owens Illinois, ACI Glass Packaging Manufacturing Human Resources Manager This employer's plant was at Penrith (T52.16). The Plaintiff claimed these achievements: "- Facilitated the effective industrial relations move to Dual Trades - Introduced HR filing system to comply with standards. - Developed recruitment process to ensure timely effective recruitment - Implemented strategic focused recruitment - Won WSIA in People Management - Reduced sick leave to below national average of 2.8% - Developed metrics reporting and resourcing behaviours - Managed and facilitated training competencies in conjunction with training needs analysis and needs analysis with the identification of attached KPI's. - Developed succession planning model in conjunction with training needs analysis - Effectively negotiated disputes ensuring dispute avoidance procedures were followed and complied with State and Federal Awards" From Exhibit E, it appears that the Plaintiff's salary was based on these figures: Initial salary $105,000 per annum From 1 March 2007 $108,360 per annum From 1 April 2008 $113,127.84 per annum.

20 October 2008 to 17 July 2009

Mars Food Australia and New Zealand Contract People and Organisation Manager. This job was located at Wyong. The Plaintiff's contract of employment is contained in Exhibit E. This was a temporary but full-time position whilst another was a maternity leave for a period of 15 months ending on 31 January 2010 (despite an obvious error in the contract ending it on 31 January 2008 i.e. before it began). The Plaintiff's salary was calculated on two concepts: ROTA (explained below) and GTB, a good timekeeping bonus at the rate of 10% of the base salary for good timekeeping, and was payable according to the company's standard practice. The contract contains this: "Remuneration ROTA (Return On Total Assets) is a business performance measure and your pay is linked to the achievement of ROTA bands. The minimum ROTA point for the business is <15% and as such: Your minimum Pay at <15% ROTA would be $97,864 pa(without GTB)* Your minimum Pay at <15% ROTA would be $107,651 pa (with GTB) At present the business is at 18-22% ROTA and as such: Your minimum Pay at 18-22% ROTA is $101,818 pa (without GTB) Your minimum Pay at 18-22% ROTA is $112,000 pa (with GTB) In addition to your salary, for 2008 you will be eligible to participate in a variable pay scheme based on the achievement of agreed Business measures as set out in the 2008 Mars Food Australia Pay Plan. This will be paid on a pro rata basis depending on when you join the business. The decision to make this payment will be at the discretion of the Mars Food Australia Management Team and will take into consideration the business conditions at the time." The Plaintiff's payslips from this employment are also found in Exhibit E.

3 August 2009 to 16 September 2011

Wyong Shire Council Workforce Development Manager This is the job for which the Plaintiff applied, to which I referred in [81] above. All of the documents sent by the Plaintiff to WSC to which I have referred need to be considered. However, the nature of those documents can be gleaned from the "Achievements" which I have quoted above and from the short covering letter: "I am a seasoned HR Professional with over 18 years of experience in the discipline of human resources covering all areas of human resources/employment relations. The experience has been gained within the public service and the private sector in manufacturing and the service industry. I am an enthusiastic person with a strong business background who has a pragmatic and warm nature and a passion for people. This has enabled me to combine a business approach to people management ensuring that needs of the organization and the person are met. I firmly believe that my enthusiastic personality and passion gives me a unique ability to gain the trust and respect of those I work with. This enabled them to fully realise their potential in supporting the organisational business goals and their own future aspirations. I would welcome the opportunity to apply my skills, knowledge and experience within your organization. I firmly believe my experience mixed with my educational background has enabled me to realise the connection between conceptual and theoretical thought and practical implementation giving me a unique blend, which would be advantageous to your organization. What's most important is that I want to work hard, have fun and make a difference by using my considerable expertise in a positive environment. Please find attached a copy of my resume. I look forward to your reply and speaking with you in the near future."
To obtain his job the Plaintiff was required to undergo a medical examination. For that purpose, the Plaintiff completed a medical questionnaire which had to be reviewed by the medical examiner. The examiner was Dr Corne Kriek of the Wyong Family Practice on 9 July 2009. Some of the questions and answers given by the Plaintiff I set out below. Any matter preceded by "CK" is a notation made by Dr Kriek: Have you ever been an in patient in a Hospital? Yes Knee Op CK L. reconstruction 2000 Have you ever had an operation? Yes Knee Op CK No problems CK: R. putty platt at 19 no problems Are you receiving any medical treatment or taking any medication regularly? No Does any health problem restrict your daily activities? No
Have you ever suffered from, or do you now suffer from any of the following? …….. Psychiatric Illness No
Do you drink alcoholic beverages? Yes If YES please indicate amount of beer per week and or wine per week and of spirits per week Social: CK 1-2 nocte The declaration at the end of the document, signed by the Plaintiff is this: "I declare that the above statements are correct and I understand that any statement falsely declared may result in the termination of my employment." The document has been countersigned by the medical examiner. I assume that Dr Kriek dated the document as the number 7 was written in the continental manner. I am persuaded that what I have attributed to Dr Kriek on the form itself is what the Doctor added for 3 reasons: two different hands have written on the form; putti platt is a surgical procedure on a shoulder - if the Plaintiff had written anything it would have been "Shoulder op"; the use of Latin; 'aet' short for anno aetatis suae: in the year of his own age and "nocte": at night.
The Plaintiff obtained this appointment, obviously sought in anticipation of the job with Mars Food ending on 31 January 2010. His first pay period commenced on 3 August 2009. A summary of his earnings in this employment is found in Exhibit E pp 77-79.

The Plaintiff is bullied at WSC

On Monday 13 December 2010 at 5:13pm the Plaintiff attended the Wyong Family Practice and spoke with Dr Corne Kriek for nearly 62 minutes. The Doctors notes contain a heading "Anxiety with depression." They are these: "He has been working in his current situation for the past 18 months. It is my impression that over the last six months he has been the victim of workplace bullying: His direct boss is not giving him clear direction, speaks to him in a demeaning way, makes him feel inadequate by frequently telling him that his performance is unsatisfactory, but without being able to substantiate why. He has been threatened with dismissal on a number of occasions and has been told that he doesn't fit with the organisation in front of other people. He rarely has positive feedback. He has developed clinical symptoms of depression. DASS21 Depression: 34 (Extremely Severe); DASS21 Anxiety : 20 (Extremely Severe); DASS21 Stress: 28 (Severe) He has had self harm thoughts. Thought about driving into a tree, cutting his wrist. He doesn't have any concrete plans and doesn't feel that he would do it. Assessment: He is subjected to work-place bullying, causing severe depression and anxiety. Plan: Psychologist review - he is booked into the READ clinic in Gosford in 4 days time. Emergency numbers - Crisis line, our number here at the practice, His partner, Jayne is very supportive, she is a nurse. I suggested booking him off work - he didn't want to drop his colleagues, has meeting with his boss' supervisor tomorrow afternoon, will take union representative with him. Review tomorrow and in 1 week. Discussed antidepressants - not keen at present." The Plaintiff returned to see the Doctor on the following date at 10:01am for over 18 minutes. Relevant parts of the Doctors notes are these: "Broke down at home and again at work - unable to be at work. Sever depression - I recommended off work for 2 weeks, started on Cipramil with advice. Seeing the psychologist…. Gaye Colwell tomorrow." The Doctor prescribed 20mg of Cipramil once daily. The Plaintiff has been on Cipramil ever since (T105.35). The Doctor's referral letter to Ms Colwell is found on p 62 of Exhibit G.
The Plaintiff saw Ms Colwell on 15 December 2010. Whilst Exhibit G is supposed to be a complete copy of her records, I am not at all confident that it is and it has been arranged in the style known as "a complete dog's breakfast". To understand it I have tried to put it back together in chronological order, in the normal medical way i.e. backwards. Ms Colwell's note of 15 Dec 2010 is this: "Met with Steve for an hour. Steve reported that he was experiencing bullying and harassment from a colleague at work. He stated he has not been coping. That is affecting everything. Steve reported lack of motivation or interest in anything and anger towards colleague and 'what he feels she has done.' Session was about information gathering and allowed Steve to talk. Next session To write letter to person without showing to anyone to get his emotions out and to allow processing of anger in more productive way."
The first page of that letter is at p50 of the Exhibit. It is certainly not complete. The colleague whom the Plaintiff alleges bullied him is a lady whom I shall identify merely as MK. The first page of the letter is: "OK, I am required to write why I am angry. For me the anger is not really anger it is frustration and disappointment. For 20 years I have been I would say a person who can see both sides. This episode has taught me not to really trust anybody. In regards to [MK] to some extent I do feel betrayed by somebody who is to me an evil person. I have now got to the stage where I just want all this behind me. I can't believe still how much this has changed me. This person has managed to deceive everybody and nobody has had the intestinal fortitude to say anything otherwise and she is still behind the scenes pulling the strings. Having said this my stomach turns actually writing this. Although I don't really feel the anger now. Kharma always comes back to bite people like her. In regards to my workmates I was often told that I was a good bloke. Interestingly, the only person to ring to find how I am going has been Ian Clarke (nice guy) my former supervisor. I have no doubt that".
On Monday 20 December 2010, the Plaintiff returned to see Dr Kriek for over 45 minutes. The notes contain this: "Long talk - he is experiencing flashbacks from his time in the Police force. Dreams about events he witnessed. He constantly thinks about the person at work and develops anxiety when he thinks about her or the circumstances at work. He has seen Gaye [Colwell] last week and again tomorrow. No self harm risk - has excellent support at home. Has Gaye's phone number." The Doctor went on to record that the Cipramil was helping the Plaintiff sleep better. He also noted that meetings called at WSC and that it appeared that "the situation is being addressed."
On 21 December 2010, the Plaintiff had his second session with Ms Colwell. It lasted an hour. They further discussed work concerns. Her notes continue: "Steve continued as previous session with his frustration and anger Discussed techniques to deal with anger but also discussed how it was affecting him and how or if he could or wanted to change this. Next session: Talking to partner about how he was feeling and put feelings into place to gain control over emotions." The Plaintiff's absence from work at WSC was being treated by it as a workers compensation claim. Dr Kriek was supplying certificates of incapacity using WorkCover forms.
On Christmas Eve, Dr Kriek wrote a short note to the Insurance Controller of WSC. It is recorded in the Wyong Family Practice notes thus: "In response to your letter about Mr Wilson dated 22 December 2010: Mr Wilson is the victim of workplace bullying and developed major depression and anxiety as a result. 1: He can return to work by 31 January. I recommend that he does not work with the person who is responsible for the bullying. 2: I am not aware of any previous stressors that may have triggered the condition. 3 and 4: Yes, he is receiving counselling and medical therapy. 5: Mr Wilson's prognosis is excellent, depending on how the factors at work are addressed."
The Plaintiff next saw Dr Kriek on 29 December 2010, his notes contain this: "Feels calmer, seeing Gaye earlier his morning. Increase Cipramil to 40mg. Counselling abt MX [? Emotions]. No self harm risk". On the same day, the Plaintiff had a one hour session with Ms Colwell. They discussed Christmas and whether the Plaintiff's thoughts about work impacted on that day. The Plaintiff said he used thought challenging techniques to block out thoughts of MK and of his being able to focus on Christmas day. The Plaintiff was given home work to start developing realistic goals to build his motivation. The Plaintiff had a further one hour session with Ms Colwell on 11 January 2001. The discussion was mainly about trying to place the Plaintiff's emotions under control so that he could return to work with the WSC.
The Plaintiff saw Dr Kriek again on 17 January 2011. He noted the Plaintiff's upcoming appointment and then recorded: "We will not be able to return him to work until a strategy is in place to interact in a more structured environment with [MK]." He also noted that the Cipramil appeared to be effective.
On the same day the Plaintiff was interviewed by Ms Donna Hextell, an occupational therapist of Konekt Australia Pty Ltd for some form of WorkCover assessment. She generated a report dated 18 January 2011, addressed not to any insurer but to WSC. In this report the letters NTD, which I believe stand for "Notified Treating Doctor", is a reference to Dr Kriek. The diagnosis which she accepted appears to be that notified to WSC by Dr Kriek in his note of 24 December 2010: see [101] above. Ms Hextell's history is this: "Mr Wilson reported that he is employed in a 5 year contract position with Wyong Shire council as manager of workforce development in the Human Resources Department. Mr Wilson reported that he has been off work with a diagnosis of major depression attributed to workplace conflict. Mr Wilson reported that his condition has arisen following bullying and harassment from his direct manager ([MK]). Mr Wilson reported that the major incident which precipitated his current psychological condition was a confrontational meeting with his manager where he felt that she treated him inappropriately and threateningly in front of other staff members. Mr Wilson reported that this incident occurred following a history of a difficult working relationship. Mr Wilson reported feeling that his manager was constantly finding fault and treating him rudely and arrogantly. Mr Wilson reported that following the confrontation on 6/12/[2010] he saw his GP but was not certified unfit for work. Mr Wilson reported that he was getting ready for work the following day and broke down crying and felt he could not go in to work. He did attend work however reporting that he did not want to let his offsider down in relation to a report that needed to be completed. Mr Wilson reported however, that when he arrived at work he was advised that he was to have a meeting with his manager and again broke down and was unable to stay at work or meet as requested. Ms Wilson advised the relevant personnel at Council and attended his NTD who certified him unfit for work." A little later in her report Ms Hextell recorded this: "Mr Wilson has been diagnosed…. with major depression. Mr Wilson denies that he has had similar previous psychological conditions. He reported that he has previously worked in the police force and has been involved in critical incidents but has had no significant negative psychological issues following usual debriefing". That part of Ms Hextell's history I am now asked to accept is untrue.
On 24 January 2011, the Plaintiff had another consultation with Ms Colwell. They discussed the Plaintiff's returning to work with WSC. The Plaintiff said that such conversation triggered significant anxiety. Ms Colwell "did further arousal reduction techniques" and allowed the Plaintiff "to… talk and be heard". On 25 January Dr Kriek received a telephone call from Ms Hextell and he advised her that the Plaintiff "should be fit to return to work under another manager."
On 31 January 2011, the Plaintiff saw both Dr Kriek and Ms Colwell. The appointment with Dr Kriek was at 9.42am, so I assume that the Plaintiff saw him first. His notes are these: "Steven had an interview as part of the investigation last week and has another this afternoon and on Wednesday. He also has an appointment with the psychologist at 5 this afternoon. Plan: Ongoing Psychologist review. Continue on antidepressant medication - Cipramil. On review today it is clear that it will not be possible for Mr Wilson to return within the next fortnight. We will not be able to return him to work until a strategy is in place to interact in a more structured environment with the person involved." Ms Colwell's notes about her session with him are: "Steve spoke about how he was feeling towards work issues, stating he was frustrated and angry at what happened. Working through emotions again working towards building confidence in himself which he reported losing. Steve also reported possible return to work just under a different area."
On 14 February 2011, the Plaintiff had two consultations with Dr Kriek. The first, at 8:58am, concerned his workers compensation claims, and the second, at 9.29am, was a dermatological check up. Dr Kriek's notes of the first consultation are these: "Management Plan: Mr Wilson requires ongoing Psychologist review. Continue on antidepressant medication - Cipramil. As there is a clear trigger for Mr Wilson's current condition, Mr Wilson will not be fit to return to normal or partial duties until a proper management plan is in place. We will not be able to return him to work until a strategy is in place to interact in a more structured environment with the person involved."
WSC sent to Ms Colwell a form headed "Psychological/Counselling Management Plan" which she completed and sent to WSC which received the completed form on 9 February 2011. It can be found at pp 63 to 67 of Exhibit G. It recommended continued Cognitive Behaviour Therapy, Acceptance and Commitment Therapy and Solution Focussed Therapy and "Psycho education". Sessions were to be held fortnightly. WSC accepted "provisional liability" for this plan on 21 February 2011.
On 18 February 2011 Dr Kriek recorded this in his notes: "I received a fax from Donna from Konekt. The RTW plan includes a third person involved in all 1:1 meetings between [MK], with no unsupervised 1:1 meetings for the first two weeks. All emails will be CCed to Mr Jacks. Mr Jacks will review work loads and ensure realistic performance expectations. Mr Wilson will attend usual group/management team meetings. I have a few concerns with the RTW plan. Firstly, the investigation report has not yet been received and to return to the work place without the final report is undesirable. Furthermore, the RTW plan places the emphasis on Mr Wilson, with work loads and performance expectations to be reviewed. In addition to this the 1:1 weekly review meetings have been suspended for the first two weeks only. I understand that the investigation report has not yet been completed, however, the RTW plan does not include any long term plans to reduce the likelihood of future work place bullying, such as interventions regarding [MK] attending, or having attended a personnel management course for supervising and people skills."
On 28 February 2011 the Plaintiff again consulted Dr Kriek. The relevant parts of his notes are these: "Anxiety with depression The report was completed, with several very personal statements from [MK], including that Mr Wilson was in a 'sexless marriage', although he is adamant that he never discussed anything of this nature with her and never used those words. If this is the case, it illustrates further intimidation and bullying by [MK]. As doctor this places me in a difficult position, as I now have two conflicting sides of a story. I recommended that he has a discussion with his union and seeks legal advice. From a medical point of view he is still suffering from significant anxiety and I do not feel that it is reasonable to return to work. I need to reiterate that work place bullying can be extremely subtle and is not always physically threatening. I recommend ongoing medical treatment and psychological support." The Plaintiff also reported chest symptoms which the Doctor thought could be influenza. A chest X-ray was ordered. Later that day, a radiologist telephoned Dr Kriek to advise him that the X-ray detected a pulmonary embolism. Dr Kriek directed Jayne to take the Plaintiff to Wyong Hospital Emergency Department which led to the Plaintiff's being admitted to hospital. He was discharged from hospital on 3 March 2011 on warfarin and clexane, both blood-thinning medications. For this condition, Dr Kriek saw the Plaintiff on 4, 6, 8 and 11 March 2011.
On 4 March 2011, WSC advised Ms Colwell that it had declined liability for the Plaintiff's workers compensation claim: see Exhibit G p69. Dr Kriek's notes for 11 March 2011 record this: "Also: WCwas declined He has been working in his current situation for the past 18 months. It is my impression that over the last six months he has been the victim of workplace bullying: His direct boss, [MK], was not giving him clear direction, speaks to him in a demeaning way, makes him feel inadequate by frequently telling him that his performance is unsatisfactory, but without being able to substantiate why. He has been threatened with dismissal on a number of occasions and has been told that he doesn't fit with the organisation in front of other people. He rarely has positive feedback. He has developed clinical symptoms of depression. The report into work place bullying was completed, with several very personal statements from [MK], including that Mr Wilson was in a 'sexless marriage', although he is adamant that he never discussed anything of this nature with her and never used those words. If this is the case, it illustrates further intimidation and bullying by [MK]. As doctor this placed me in a difficult position, as I now have two conflicting sides of a story. I recommended that he has a discussion with his union and seeks legal advice. From a medical point of view he is still suffering from significant anxiety and I do not feel that it is reasonable to return to work. I need to reiterate that work place bullying can be extremely subtle and is not always physically threatening. I recommend ongoing medical treatment and psychological support. Redid DASS: DASS21 Depression: 30 (Extremely Severe); DASS21 Anxiety: 14 (Moderate) DASS21 Stress: 20 (Moderate) The Patient Report GP Mental Health Plan 2710 was produced. The Patient Report A Medical Cerificate was produced."

Treatment after WSC declined liability

The purpose of this section of these reasons is to record relevant complaints by the Plaintiff that might be attributed to PTSD, until that diagnosis is clear. Dr Kriek's Mental Health Care Plan was sent to Ms Colwell. The diagnoses made by Dr Kriek in that plan is "Depression and anxiety". The heading it provides (Exhibit G, p29) is referable solely to the Plaintiff's troubles commencing at WSC. The Plaintiff commenced seeing Ms Colwell under that plan on 15 March 2011. The Plaintiff saw Ms Colwell on twelve occasions up to 20 September 2011. On 21 September 2011 Ms Colwell wrote a report to Dr Kriek, the substance of which is this: "Steve has discussed numerous issues and occurrences of feeling bullied and harassed and has been working hard to overcome his emotions, anger and frustration in order to be able to return to work and move on with his life. The sessions have been working off a Cognitive Behavioural Therapy basis and have been developing coping strategies as well challenging his thoughts and emotions. He has been responding well to sessions and had a more proactive role in implementing behavioural changes discussed in sessions also. He is working hard to manage his anxiety associate with workplace and we are hoping to work further on workplace return and interactions with particular parties within workplace. He is currently having great difficulty feeling heard and feels that no one believes him which he is having difficulty coping with. The coming sessions will address this further and also continue to develop resilience and ability to cope with returning to work. Current Status: I would like to recommend that Steve continue with therapy to further assist him with his current situation and ongoing mental health. Are you able to please review Steve's GP Mental Health plan so he is able to continue to access the Medicare rebate."
The Plaintiff was still attending on Dr Kriek regularly. The Doctor's notes of 23 June 2011 record this: "Anxiety with depression Mood OK, I am considering the possibility of PTSD. He develops psycho motor [agitation] when we talk about the person involved. He is not to work under the supervision of the person against whom the bullying complaint was made and not to work in the… same environment as the person against whom the complaint was made. If his current employer is unable to provide an environment where he is not in contact with the person involved he is allowed to perform duties elsewhere. In view of his dire financial situation he has sought employment with K-mart and starts in July." The "possibility of PTSD" is not linked to NSWP service but, semble, to [MK]. The Plaintiff commenced working with K Mart on 4 July 2011.
On 21 July 2011 Dr Kriek noted that the Plaintiff's new work was "going really well". On 1 September 2011, Dr Kriek provided a diagnosis of "Depression", He noted that the Plaintiff's worker's compensation case was going to arbitration. His note continues: "Long talk about mood - needs ongoing psychologist input. Things are going well at K-Mart, he was recently promoted and gets excellent feed back. He is doing well in an environment where he is not around the person that was involved in the work-place bullying while at Wyong Council." On 29 September 2011, Dr Kriek noted that the Plaintiff's workers compensation case was settled.
On 13 November 2011, the Plaintiff flew to Thailand for a for a holiday. For the purpose of that trip he consulted Dr Kriek on 18 October and 11 November, but started to experience chest symptoms, similar to those when he was diagnosed with his pulmonary embolism on 26 November. Those symptoms caused him to contact Dr Kriek on 29 November. Throughout the rest of 2011, 2012 and the first half of 2013 the Plaintiff was regularly seeing Dr Kriek. Dr Kriek maintained the prescription of Cipramil and provided further referrals to Ms Colwell but the first note of psychic symptoms was on 29 August 2013: "His anxiety and depression are fluctuating, he still has panic attacks". Another Mental Health Plan was then made and sent to Ms Colwell.
On 1 April 2012, Ms Colwell generated a further report to Dr Kriek after a further 6 treatment sessions. The substance of her report is this: "Treatment has focused on the following issues: Steve has been working through ongoing issues associated with reported bullying from his previous employer. He is also currently going through court proceeding with relation to this issue which is causing him even further stress and increase symptoms of depression and anxiety. Steve has reported that he is feeling low in mood and that he is anxious about his current situation and about having the confidence and strength to return to workplace and feel like he is capable. Our sessions have focussed on building his confidence and self worth and also working on his conflict resolution skills. Current Status: Given Steve's ongoing stressful situation and erratic moods, I would like to recommend that Steve continue with therapy to further assist him with his current situation and ongoing mental health. Are you able to please review Steve's GP Mental Health plan so he is able to continue to access the Medicare rebate."
On 13 September 2012 after a further 6 treatment sessions, Ms Colwell wrote this report to Dr Kriek: "Treatment has focused on the following issues: Steve has been working through a number of personal issues over the past few months. He has reported being in a strained relationship that he is not sure if he even loves his wife anymore, given that he feels she treats him more like a flat mate than a partner. We have been addressing Steve's responsibilities in the marriage and what he can look at doing to change the situation. This includes communicating his needs more and being more independent with relation to his life and his behaviours. Current Status: Steve is really struggling to manage his moods about his marriage and feels very alone and isolated and confused. Therefore, I would like to recommend that Steve continue with therapy to further assist him with his current situation and ongoing mental health. Are you able to please review Steve's GP Mental Health plan so he is able to continue to access the Medicare rebate."
On 14 August 2014, the Plaintiff commenced to see Dr Senthil Govindaragan at the Wyong Family Practice. On 29 August 2014, Ms Colwell wrote to Dr Govindaragan: "Thank you again for referring Steve to Your Strengths Psychology for psychological therapy sessions. Steve has attended 6 treatment sessions since his last review dated 29/08/2013, for your records and to ensure continued assistance for Steve, I am now providing feedback and recommendations for you to complete a review of his GP mental Health plan so we can consider ongoing therapy. Treatment has focused on the following issues: Steve has been working through a number of issues since last referral. He reported being unemployed and started a fitness course to become a personal trainer. He also reported significant issues within his marriage which cause him ongoing stress and anxiety. Steve has been able to complete his personal training course and is working on gaining employment in this area. This has given him a boost with relation to his confidence and he is positive about his future in this area. He continues to have difficulties with in his marriage which we continue to work through and building strategies to assist him to cope with in therapy. Current Status: Given Steve's ongoing instability in his environment, I would like to recommend that he continue with therapy. Are you able to review his GP Mental Plan so that Steve is able to continue to access the Medicare rebate." On the same day, Dr Govindaragan sent a fresh Mental Health Care Treatment Plan to Ms Colwell.
On 24 November 2014, Ms Colwell made these notes: "[Money] came through from super[annuation]. Feels great about it. Still looking into leaving Jayne and if this is really what he wants. Talked about new system coming out recognising that PTSD affects Police. Steven then stated has been having bad/weird dreams about killing people and bodies that move."
On 3 August 2015 Dr Govindaragan's notes record this: "Mood discussed - bad time recently…. Mum diagnosed as having breast [cancer] and had removal and needs [chemotherapy]. Also discussed about his time while in the Police Force - PTSD and his Depression. Decide to leave him a cipramil 40mgs daily for long term." Nevertheless, there is no further note about the Plaintiff's psychic state until 13 September 2016, by which time the Plaintiff was seeing Dr Richard Morrow. This note of 13 September is this: "Needs repeat of medications. Has been taking cipramil 40mg for some years, major depression, PTSD formerly in Police".
Ms Colwell's note for 28 April 2016 is this: "Feeling agitated and demotivated. Feels like he has no real focus - always feeling anxious at the moment. Doesn't know why. Report experiencing nightmare about past incident at police where he had to attend trauma scene but in the dream crocodile popped in - made no sense. Stated spoke to another ex police officer [who] also had PTSD and was on pension. Said similar effects as what Steve has. He also going for a rise in pension payment. Suggested Steve does this and submits PTSD diagnosis and effect. Jane in separate room. Looking at selling house to pay off debts. Business slow and not motivated to build it at the moment as moods affecting him."
There was never a referral by a doctor at the Wyong Family Practice to a Psychiatrist - the only referrals ever made by doctors at the practice were to Ms Colwell. On 28 May 2019, Dr Howard Oxley at the Wyong Family Practice noted that the Plaintiff had seen a doctor at the St. John of God Hospital. That was Dr Jeffrey Bertucen, a consultant psychiatrist, to whom the Plaintiff was initially referred by Mr Stuart Gray, Solicitor, of Messrs Cardillo Gray. Dr Bertucen first saw the Plaintiff on 9 May 2019, and thereafter took over the psychiatric care of the Plaintiff who had no treating psychiatrist.
However, Dr Bertucen was not the first psychiatrist to interview the Plaintiff. The Plaintiff made an application to increase his HOD pension, which was received by the Defendant on 27 March 2017. For the purpose of that application, the Defendant sent the Plaintiff for examination by Dr Robin Mitchell, occupational physician on 17 August 2017. In his report of 23 August 2017, Dr Mitchell recorded this "Past History": "Mr Wilson said that he was currently suffering from PTSD. He said that he had a history of previous pulmonary embolism, without a primary blood clot or thrombus found. He was apparently found to have a prothrombin genetic mutation condition. He also said he had intermittent lower back pain." In his "Employment Potential Report" of 16 pages, Prof. Bright recorded this: "Mr Wilson outlined the following medical problems unrelated to his Hurt on Duty discharge. He said he was diagnosed with PTSD in 2009 by psychologist Gaye Colwell. He said he takes Cipramil for his condition. He suffered from a pulmonary embolism in 2010 and had been taking Warfarin since then until recently when the Warfarin was replaced by Xarelto. Additionally, he reported some pain in his back which required physiotherapy."
That caused the Defendant to write to the Plaintiff's solicitors on 16 January 2018 a letter containing this: "After reviewing your client's application and medical reports we have obtained following examinations of your client (copies enclosed), it appears that there is some medical evidence that your client may suffer from an infirmity, in relation to his incapacity for work outside the Police Force, that was not included on the s.10B incapacity certificate issued with respect to your client (an uncertified infirmity). In this case, the uncertified infirmities are Post Traumatic Stress Disorder, lower back pain and a prothrombin genetic mutation condition (blood clotting). The law relating to your client's application was recently considered in the decision of the NSW Court of Appeal in Miles v SAS Trustee Corporation [2017] NSWCA 86 (Miles) on 4 May 2017. The effect of that decision is to require STC to take into account any uncertified infirmity when assessing an application under s.10(1A)(b) of the Act for an increase to a PSS HOD pension. However, the High Court of Australia has granted STC special leave to appeal the decision of the Court of Appeal in Miles. At this point we do not have a definite indication of when the appeal will be heard by the High Court. In light of this, we ask that you advise us in writing that your client wants any of the above mentioned uncertified infirmities taken into account in the assessment of the application. If this is the case, STC will ensure that your client's application under s.10(1A)(b) of the Act for an increase to his PSS HOD pension will be assessed and determined by the Police Superannuation Advisory Committee (PSAC) in accordance with the decision of the Court of Appeal in Miles. If PSAC determined to grant your client an increase under s.10(1A)(b) of the Act to his PSS HOD pension on the basis at least in part of an uncertified infirmity, and STC is successful in its appeal to the High Court (ie if the Court of Appeal decision in Miles is overturned or otherwise varied) then STC may re-assess PSAC's determination." The view of the law stated by the Defendant is incorrect. The Court of Appeal had, by majority, overturned my decision in Miles v SAS Trustee Corporation [2016] NSWDC 56, but the High Court of Australia, unanimously, restored my decision: SAS Trustee Corporation v Miles [2018] HCA 55. However, Cardillo Gray obviously gave a positive response to the Defendant's enquiry leading to further medical examinations on behalf of the Defendant.
On 18 June 2018, the Plaintiff was interviewed by Dr Matthew Jones, forensic psychologist, who prepared a report dated 30 July 2018. The relevant part of Dr Jones' history is this: "Mr Wilson said that after he was medically discharged in April 2000 he said within about twelve months he had his first job. He said now he is too old, 'can't get a job' and he said he does not want one. He said when he deals with people he 'get[s] the shits.' Mr Wilson said he has seen a psychologist, Gaye Colewell, in Wyong. He said he sees her now only when he is not coping, but he used to see her every month. He said his General Practitioner, Howard Oxley, prescribes medications and he takes Cipramil 40mg which seems to work for him. He said he has been taking it for a long time, since about 2009/2010. I asked Mr Wilson why he started taking antidepressants around that time and he said that he was seeing Dr Kreik at the time and he ended up having a breakdown when he was at Wyong. He said that his family had always said that he was distant and angry and he always used to get angry and wanted to be alone. He said he was very ambivalent and would want to go out and not want to go out. He said he would want to be alone and not want to be alone. Mr Wilson said when he was working at Wyong Council there was a woman he worked with whose husband was a police officer. He said that she would bring up stuff that he had been involved in and he 'crashed and burned.' He said he started having more flashbacks, which he had had previously. He said since talking to Gaye around 2009 'all the stuff came out from the cops.' He said he has not been hospitalised and his only medications have been antidepressants. He said he has not seen a psychiatrist for treatment, but his doctor suggested that he should choose one. With respect to recent symptoms, Mr Wilson said he had been 'up and down.' He said some days were good some days were bad and some days were very bad. He said the last week or so had been bad and he had a trigger of talking to a woman in the gymnasium who was an ambulance officer and talking about a deceased person in a bath. Mr Wilson became upset talking about this and talked about skin coming off in his hands. He said he was sick of having dreams and nightmares and not being social. He said he gets in a dark place and he has dark thoughts. He said he has two ambulance officer friends and an ex-cop friend to whom he can reach out. He said he tried to suicide when he was in the police in Campbelltown in the early nineties and said he had his 'gun in [his] hand.' He also said in 2009 he 'pointed the car at a tree.' Mr Wilson said in the early nineties he spoke to a psychiatrist attached to the New South Wales Police. He was not given any medications or had any time off duty but was put in the domestic violence section. He said he had done a lot of hits previously. He said he looked into protocols for dealing with SIDS and he became the unofficial SIDS investigator and investigated nine of them in one three-month period. He said it included some particularly bad cases. He said not long after that he also experienced a double murder suicide and he found the perpetrator who had shot two girls and himself. Mr Wilson said he cannot watch various movies but can watch fantasy or Sci-Fi, for example Star Wars, but with other movies that are too realistic he has to leave the room. He said he has unpredictable triggers." As to the third paragraph of that quotation, there is no evidence to support the Plaintiff's allegation about what members of his family always said of him, for example, after his medical discharge from NSWP up until the time of his adverse reaction to his interaction with MK at WSC. The Plaintiff told Dr Jones that he was living with his wife Jayne, with whom he had been for 25 years, and who was working as a community nurse. The Plaintiff's relationship with Jayne dated back to 1993. As to the fourth paragraph, the records of Ms Colwell do not establish that "all the stuff came out from the cops" from 2009. The Plaintiff first saw Ms Colwell on 15 December 2010. There is no mention of earlier NSWP service or PTSD in Ms Colwell's notes until 24 November 2014 - see [117] above. As to the sixth paragraph, the reference to a psychiatrist in "the early nineties" appears to be a reference to Dr Westerink, a psychologist. As to the final paragraph, the evidence does not tell me when this inability to watch various movies first manifested itself.
Dr Jones expressed this opinion: "From a psychiatric perspective, Mr Wilson reported a narrative and presented at assessment consistent with a Chronic Post Traumatic Stress Disorder with associated mood and anxiety symptoms. This is in partial remission currently and Mr Wilson is managing many of the symptoms, but some are interfering with his day-to-day functioning. Symptoms have been noticeable for up to ten years for Mr Wilson and he is currently receiving antidepressant medication and seeing a psychologist. Mr Wilson lacks motivation, particularly for working and indicated he had most difficulty dealing with people. Despite this, Mr Wilson maintains some psychiatric employment capacity, up to half-time in an appropriate suitable role. This is approximately consistent with his current level of activity given his part-time occupational pursuits. He indicated he is stressed when working in the Dementia Unit and it would be likely if this were a full-time position, this would have a detrimental effect on his mental health. Mr Wilson should continue to see his general practitioner regularly, take antidepressant medication regularly and see his psychologist when required. There is no other specific need for therapy for Mr Wilson." Later in the report, in answer to a question asked of him by the Defendant, Dr Jones said this: "It would appear that Mr Wilson started having symptoms of significant impact around 2009 when he experiences flashbacks and intrusive memories, traumatic police work, triggered by conversations with a colleague." This appears to be a reference to the history recorded in the fourth paragraph quoted in par [125] above, but that history is not borne out in this evidence - in fact it is denied: T106.03 to T106.31. However, Dr Jones' opinion appears to be that "significant symptoms" only occurred when the Plaintiff started seeking treatment in December 2010, which was after being bullied at WSC.
On 27 September 2016, the Plaintiff was re-examined by Dr Robin Mitchell for the Defendant. Dr Mitchell was examining the Plaintiff for the condition of his left knee. Dr Mitchell expressed this view of the Plaintiff's work capacity at that time: "Mr Wilson has, in my opinion, a current capacity for suitable work that would avoid any aggravation of the reported HOD symptoms and, providing the following precautions were available, he should be able to manage such work for 40 hours each week. Prolonged walking, particularly over uneven or sloping ground surfaces should be avoided, as should running, frequent step climbing, kneeling and crouching actions. Static standing should be avoided by ensuring regular movement. Due to his non-HOD low back condition he should undertake all physical activities below shoulder height and close to the body trunk to avoid aggravating his lower back that it would be reasonable that he avoided manual handling beyond 10 kg on a regular basis. He should also avoid fixed and awkward spinal postures, and ensure regular posture change throughout the day to avoid aggravating his lower back."

When was PTSD more recently diagnosed?

Dr Kriek's initial diagnosis was "Anxiety with Depression" - see [96] above. Dr Kriek noted symptoms consistent with PTSD on 20 December 2010 but did not raise the diagnosis of PTSD at that time. In his note of 24 December 2010, Dr Kriek raised the diagnoses of major depression and anxiety - par [101] above. In his first referral to Ms Colwell, Dr Kriek diagnosed "severe depression and anxiety" (exhibit G, p62). Subsequent referrals were for "Depression and anxiety": Date Reference 11-3-2011 Exhibit G p 29 29-8-2013 Exhibit G p 40, p 36 Those diagnoses were comtinued by Dr Govindaragan on 29 August 2014 (Exhibit G p 22 and p 19) and, perhaps, on 14 January 2015 (Exhibit G pp 14 and 16). The only other similar correspondence to Ms Colwell is from Dr Howard Oxley on 29 January 2018. A covering letter (Exhibit G p 10) refers to "Anxiety with Depression" but the Mental Health Care Treatment Plan refers to "PTSD". However, the notes of the Wyong Family Practice show that Dr Govindaragan raised the diagnosis of PTSD on 3 August 2015 and that Dr Richard Morrow raised that diagnosis on 13 September 2016 - see par [120] above. I accept that although the Plaintiff may have had some symptoms consistent with PTSD, about which he told Dr Kriek on 20 December 2010, PTSD as such was not diagnosed until 3 August 2015 by Dr Govindaragan. The first relevant specialist to diagnose PTSD was Dr Jones who interviewed the Plaintiff on 18 June 2018.

No contest on the existence of PTSD

There is no medical contest that the Plaintiff has been suffering from PTSD. His diagnosis is accepted by Dr Matthew Jones, by Dr Jeff Bertucen who first saw the Plaintiff on 9 May 2019, and then took over the Plaintiff's treatment, and by Dr Michael Diamond who interviewed the Plaintiff on 5 August 2021. The Defendant has qualified Dr Martin Allan, consultant psychiatrist, but Dr Allan has not had the advantage of interviewing the Plaintiff. His report has a sub-heading "File Review" - his opinion is based on his reading of the material sent to him as listed on p 2 of his report. Dr Allan answered two questions put to him by the Defendant's solicitor. Those questions and his answers are these: "1. What medical infirmity/ies did Mr Wilson have on his last day of service with the Police Force? Please assume that Mr Wilson's last day of service was in February 1998. Physical infirmities are out of my area of expertise and will need to be addressed by another specialist. It is evident that he had stopped working due to physical issues at that time. There are references to psychological symptoms present prior to that time but he had not apparently been incapacitated by any psychological distress prior to going off work. Assuming that his last day of services was in February 1998, there is no contemporary evidence that appears to support that he met criteria for a diagnosable posttraumatic stress disorder at that time. He had issues, including sleep problems and irritability in part due to personal circumstances during the 1990s and it is possible he may well have met criteria for an adjustment disorder with depressed and anxious mood at that point, but I fell that the evidence provided does not adequately support, during the 90s, him meeting criteria for a posttraumatic stress disorder. That is not to say that he may have had subsyndromal symptoms and the adjustment disorder symptoms that he was experiencing would appear, based on the history provided, to have evolved over time to become a posttraumatic stress disorder with its origin in the exposure to trauma during his time with the New South Wales Police Force. At the time of his medical discharge, due to his physical issues, I do not believe he was incapacitated from work due to any psychiatric reason. The posttraumatic stress disorder, which developed later, appears to significantly have its origin in the recurrent exposure to trauma following a long career in frontline policing, but I do not believe he was incapacitated from a psychiatric perspective as of February 1998. 2. Was Mr Wilson psychiatrically incapacitated for the actual duties of his office on the last day of his service with the Police Force? If so, how was this apparent? Please assume that Mr Wilson's last day of service was in February 1998. I do not regard Mr Wilson as having been psychiatrically incapacitated for the actual duties of his office on the last day of his service. I note that his last day of service had been associated with his physical injury. I believe he would have returned to work thereafter if he had recovered from his physical injury, which of course he did not. Assuming his last day of service was February 1998, I am of the opinion that he had capacity to work at that time from a psychiatric perspective. I regard his posttraumatic stress disorder that he has gone on to develop as being intrinsically based in the recurrent exposure to trauma over his time within his career. His posttraumatic stress disorder had delayed onset, in my opinion, based on the history provided but to be clear, he was not psychiatrically incapacitated, in my opinion, for the duties of his position within the police force on his last day of service, that being February 1998."

Plaintiff's workers compensation claim

After WSC denied liability for the Plaintiff's workers compensation claim, the Plaintiff sought and obtained legal advice and proceedings were commenced in the second Workers Compensation Commission ("WCC"). The Plaintiff's solicitors on that occasion were Messrs White Barnes (Parramatta Office) - see Exhibit G p 51. Ms Lyn Goodman of Counsel was retained by them to appear for the Plaintiff (T113.04). The arbitration hearing was set down on 16 September 2011. The Plaintiff's claim was settled (T113.13). I do not know how the matter was settled. Neither redemption nor commutation of a worker's entitlements was available in the WCC. A record of payments made to the Plaintiff by WSC (Exhibit E pp 77-79) shows a gross payment to the Plaintiff of $32,305.41, a net payment of $17,482.41 for the week ending 16 October 2011. That payment may reflect the settlement.

Kmart Australia Ltd

On 4 July 2011, the Plaintiff started to work for Kmart as a Manager in Training at its Woy Woy store. His Total Fixed Compensation ("TFC") package was $55,000 per annum, the elements of which were:

cash salary
superannuation
vehicle There were also an Incentive Program and a Point of Sale discount at Coles Group businesses.

On 1 December 2011, the Plaintiff entered into a new contract with Kmart. He was made the Store Manager at Erina. His TFC for this role was $95,000 per annum, made of the same three elements. The Incentive Program and Point of Sale discount were still available to him. He did this work for "8 months or so" (T58.25). His services were terminated after he had a verbal altercation with a female manager subordinate to him and he lost his temper with her (T58.13). He was paid a lump sum of $7,307 on 2 March 2012 as a "termination payment".

Hudson Global Resources (Aust) Pty Ltd

This employment was never mentioned in oral evidence. Exhibit E (bundle of financial records in a lever-arch binder) was only tendered after all the oral evidence was completed, so the Plaintiff could not be cross-examined about it. This employment is disclosed in the Plaintiff's Income Tax Return ("ICTR") for 2012. That discloses that the work was "labour hire". The gross payment was $23,056 from which tax of $5,805 was withheld. The Plaintiff's 2013 ICTR also shows earnings from this source of $13,400 gross from which $3,323 was withheld as tax.

Fire Administration Services Pty Ltd

This employment was never mentioned in oral evidence. The Plaintiff's 2013 ICTR shows gross earnings of $26,093 from which $5,415 was withheld as tax. This employer also paid "allowances, earnings, tips, director's fees etc" of $712. There is nothing in evidence which tells me anything about this job.

Life without Barriers

On 4 July 2013 the Plaintiff commenced work for this charity as "National Senior Human Resources Consultant" based at Newcastle, on a salary of $110,000 per annum, plus superannuation at 9% per annum. He was paid a redundancy allowance on 14 March 2014 of $3,267 of which $1,029 was withheld as tax. The Plaintiff described this job thus: "I was forensically analysing shift patterns for fraud with a number of workers that were working for Life Without Barriers…. I could do it from home. I had rosters, I had payslips.. - most of the people that worked for them at that time were contractors and my role was to discover when they were… putting in… payment slips and where they were at the time. It was discovered a number of contractors were putting in payslips and they weren't at work when they were doing it." He occasionally attended an office in Newcastle. I understand that the Plaintiff was laid off when government funding for his work "dried up" (T111.24).

GFC Rutherford Pty Ltd

This employment was not mentioned in evidence. It is disclosed in the Plaintiff's 2015 ICTR. His total earnings in this employment were $1,701. What the Plaintiff did for this company is unknown to me.

Peoplefusion Pty Ltd

This employment is in exactly the same category as the last mentioned employment. The Plaintiff's total earnings were $600 which indicates no more than one week's work.

Steve Wilson Heart 'n' Head PT Services

This is self employment. The Plaintiff gave evidence that, commencing some time before 2012, he was doing some boxing and weight training and that persisted throughout his work at Life Without Barriers. He was paying for this training. This had been suggested to him by both his general practitioner and his psychologist as a form of therapy. Whilst at Life Without Barriers, he was training for 3 days per week, one hour each day before work. When his work at Life Without Barriers ended, he became a personal trainer himself (T110.42 to T111.26). Exhibit E contains invoices (pp 116-147) showing services being rendered by the Plaintiff between 6 October 2015 and 27 June 2018. The invoices describe the work as "Provision of PT services Supervising Boxing Class" at the rate of $40 per class, with these exceptions: 22 August 2015 Fill in Reception Duties for 4 hours $80.00 12 September 2016 Fill in Reception Duties for 4 hours $80.00 6 July 2017 Provision of PT services Supervisory Youth Class $40.00 10 July 2018 Provision of PT services Supervisory Youth Class $80.00

These invoices, however, do not represent all the work which the Plaintiff did in self-employment. His 2015 ICTR shows this for this business: Gross Trading Income $8,801 Expenses $30,062 Total Loss $21,261 There may be some "creative accounting". The expenses include these: Motor Vehicle expenses $12,620 Advertising and promotion $1,500 Electricity $326 Printing and Stationary $3,490 Rent on land and buildings $6,370 Telephone $921 Deferred prior losses $21,261
The Plaintiff's 2016 ICTR shows this for this business: Gross Trading Income $11,760 Expenses $42,022 Total Loss $30,262 The expenses include: Motor Vehicle Expenses $12,982 Electricity $432 Printing and Stationary $647 Rent in land and buildings $3,334 Telephone $921 Deferred prior losses $21,261
The Plaintiff's 2017 ICTR shows this for the businesses: Gross Trading Income $4360 Expenses $50,149 Total loss $45,789 The expenses include: Motor Vehicle Expenses $13,617 Cleaning and Rubbish Removal $150 Electricity $216 Printing and Stationary $200 Rent on land and buildings $3,858 Telephone $672 Deferred prior losses $30,262
The Plaintiff's 2018 ICTR shows this for this business: Gross Trading Income $21,108 Expenses $69,961 Total Loss $48,853 The expenses include: Motor Vehicle Expenses $13,597 Advertising and Promotion $200 Bank Fees and Charges $240 Electricity $216 Protective clothing etc $534 Rent on land and buildings $4,083 Replacements (tools etc) $877 Telephone $3,841 Deferred prior losses $45,789
The Plaintiff's 2019 ICTR (the last one provided to me) shows this for this business: Gross Trading Income $1,630 Expenses $6,074 Total Loss $4,444 The expenses include: Advertising and promotion $200 Bank fees and charges $120 Cleaning and rubbish removal $50 Electricity $160 Hire of rent of plant, equip. $246 Printing and Stationary $331 Protective clothing etc $240 Rent on land and building $800 Telephone $380 Seminars and education $400 Deferred prior losses $0 Motor (set rate) $2,773
The Plaintiff said this about this business: "I most probably had two or three clients, maybe four clients at the most and then every now and again… I'd do boxing training. My role there was not to get involved in the training itself. My role there was to instruct and just tell people what they should be doing". The Plaintiff said that he stopped this work, "I think it was in 2018" (T111.42). However, the Plaintiff had again taken paid employment in the financial year ending 30 June 2017.

Poolwerx Long Jetty

This is another employment which was not mentioned at all at the hearing. The Plaintiff's gross earnings from this employment, disclosed in the Plaintiff's 2017 ICTR were $4,169.

NSW Health Service: Central Coast Local Health Service: Gosford Hospital

The Plaintiff's 2017 ICTR discloses his employment at Gosford Hospital. The ICTR shows gross income from his source of $3,582 from which $446 was withheld by the employer for income tax. When the Plaintiff commenced this employment, I do not know. It must have been well before 30 June 2017 to be included in the 2017 ICTR. The earliest payslip available to me in Exhibit E, from this source is for the fortnight ending 1 August 2021. His gross earnings for that fortnight were $792.80. Assuming that his earnings before 30 June 2017 were the same (which is improbable) $3,582 divided by $792.80 indicates that he was employed by this employer for 4.5 fortnights prior to 30 June 2017 i.e. from at least 28 April 2017, which was a Friday. This suggests that the Plaintiff probably commenced this part-time work in mid-April 2017.
However, the Plaintiff appears to have been reluctant to disclose this: 1. the records of the Wyong Family Practice extend to 10 January 2020, but make no mention of this employment; 2. the Plaintiff saw Dr Robin Mitchell on 17 August 2017, but the latest employment mentioned in the Doctor's report of 23 August 2017 is work as a personal trainer; 3. the Plaintiff was interviewed by Prof James Bright, Vocational Psychologist, on 23 October 2017 and the most recent work disclosed is this: "Since 2012 Mr Wilson has focused on his interests in personal fitness completing training up to Certificate IV level as a personal trainer. He likes teaching people to box and coaching in weight training. He started off working in this capacity at Genesis Gym in Rutherford. Then a friend recruited him to Mick Moss's Gym in Erina. This is where he currently works undertaking approximately six hours of work a week. He said he has an hour boxing class on a Monday and on a Tuesday every second week as well as a boxing class on a Wednesday. In addition he has private clients. Mr Wilson said he is coping with this work and has reduced his hours due to problems with his knee." 1. the Plaintiff saw Dr Matthew Jones, psychiatrist, on 18 June 2018, but no mention of this work is recorded in his report of 30 July 2018; 2. the Plaintiff saw Dr Robin Mitchell on 27 September 2018 but there is no mention of this employment in his report of 23 October 2018; 3. the Plaintiff first saw Dr Bertucen on 9 August 2019. On 1 June 2019, Dr Bertucen's handwritten notes record this: "Does occ. ward clerk work at local hospital (10 days/mth x 4 hrs)". The notes for 27 June 2019 record "still working several shifts/week"; 1. the Plaintiff was seen by Assoc. Prof. Paul Miniter, Orthopaedic Surgeon, on 28 September 2020, and his report of 28 October 2020 records this: "He is working at Gosford Hospital and does so as a ward clerk. He works only four hours per day…."; 1. the Plaintiff was interviewed by Dr Michael Diamond on 5 August 2021 and his report of 30 August 2021 records this: "He is currently employed in a part time capacity. He has worked at Gosford Hospital since 2017. He works as a ward clerk where he has limited duties and responsibilities conducted during four hour shifts. He works twenty hours per fortnight. He has an alternating roster where he works on Mondays and Tuesdays for one week and then similar shifts on Mondays, Tuesdays and Wednesdays for the following week. His duties are in the cancer/renal unit." That last history confirms my initial deduction as to when it is likely that the Plaintiff commenced this work. Why he did not disclose it until 2019 is quite unclear. Of all these histories taken, the Plaintiff's correct employment history would be most pertinent to Prof. Bright, but it appears that he was misled.
The Plaintiff's evidence in chief about this work is consistent with Dr Diamond's history (T66.37 to T68.04). In cross-examination, the Plaintiff said that he worked afternoon shifts, from 3.30pm to 7.30pm (T113.36). This employment is continuing.
The Plaintiff's gross earnings from this employment as disclosed in his ICTR's were these: 2017 $3,582 2018 $20,616 2019 $25,420 The Plaintiff's payslip for the fortnight ending 1 August 2021 shows that he worked 24 hours at the rate of $29.13132 per hour and was paid is penalty allowance of 12.5% for working the afternoon shift. He was also paid a minor of sum of $6.29 for laundry. This payslip for the following fortnight is similar but shows his working 16 hours and receiving sick leave for 4 hours. There was no penalty payment for the sick leave, and the laundry allowance decreased to $5.24. The payslip for the fortnight ending 29 August 2021 showed that the hourly rate increased to $29.72553, and that increase was backdated to 5 July 2021. In that fortnight the Plaintiff worked for just under 22 hours. In the fortnight ending 12 September 2021 he worked for 28 hours, in the fortnight ending 20 September 2021 for 20 hours, and in the fortnight ending 10 October 2021 for 16 hours with 4 hours paid as sick leave. Those are all the payslips from this employment in Exhibit E.

Salary of the Plaintiff's office

Relevant to one issue in the Plaintiff's first application is the extent of the Plaintiff's ability to earn outside the NSWP if he had not been injured. Relevant to that issue is what the Plaintiff would have been earning, if he had remained in NSWP as a general duties' sergeant. That can be calculated by taking the Plaintiff's HOD pension (gross) as disclosed in his ICTRs and, taking it to represent 69.72% is the salary of that office (see [74] above) to convert it to the gross salary of office. That provides me with this table: ICTR Gross Pension Salary of Office $ $ 2010 51,212 73,454 2011 54,535 78,220 2012 54,483 78,145 2013 55,514 79,624 2014 56,814 81,489 2015 58,405 83,771 2016 59,791 85,759 2017 60,496 86,770 2018 61,634 88,402 2019 67,265 96,479 The figures in the third column have been rounded to the nearest whole dollar. The "reduction" between 2011 and 2012 is probably explained by the number of pension payments in those years not being the same.

PLAINTIFF'S SECOND APPLICATION

It is convenient to deal with the Plaintiff's application re PTSD prior to considering his application to increase his current HOD pension.
The way in which the evidence was presented in this case raised an innuendo or suggestion that, in some way, the Plaintiff was taken aback or was surprised by the determination of PSAC of 29 March 2000. Any such innuendo or suggestion must be dismissed. In my opinion, the Plaintiff well knew what was going on and, if he had wished, had the means available to him to change or alter the process. These facts lead me to that view: 1. As a result of the knee injury of 30 December 1997, the Plaintiff attended upon Dr Sharp, Police Medical Officer ("PMO") on 19 June 1998. The Plaintiff was advised that because of the damage to this knee and the likelihood of further surgery, the Plaintiff should try to find a non-operational role in NSWP, but, if none were available, the PMO would recommend a HOD medical discharge. 2. In another visit to the PMO on 2 March 1999, the PMO advised the Plaintiff that he would not be returning to operational policing. The same advice had been given to him by his general practitioner, Dr Johnstone and his treating orthopaedic surgeon, Dr Johnson. See [67] and [71] above. 3. In June 1999 Ms Beverley Ryan, Rehabilitation Officer told the Plaintiff he would most probably be medically discharged, HOD, as a result of his knee injury and its sequelae. 4. In mid-August 1999, Ms Ryan told him that NSWP had commenced the process relating to discharging the Plaintiff, in this regard see [67] above. 5. In her submission of 6 August 1999 (see [69] above) Ms Ryan advised that the Plaintiff was "happy" for the NSWP to process his medical discharge and that he had made enquiries with his trade union, the Police Association, in relation to his "entitlements". See also T76.24. 6. On 27 August 1999 he signed and dated the "Notification of Application for Medical Discharge": see [70] above. 7. On 14 September 1999, the Plaintiff received correspondence "formally informing" him that NSWP had accepted the opinion of medical reports that he was unfit for operational policy and that arrangements were in progress for his medical discharge: see [67] above. 8. On 27 October 1999, the Plaintiff made his application for secondary employment: see [67] and [71] above. 9. From early 1999 the Plaintiff had available to him expert legal advice: see [68] above and T77.05, and T77.19. 10. If the Plaintiff wished to do so, or was so advised by his solicitor and/or trade union, he could have inserted into the "Notification or Application for Medical Discharge" words such as "psychological condition", or "anxiety" or "depression" or "PTSD" - there was adequate space to enable him to do so - see [70] above. 11. When being questioned in chief about the Defendant's letter of 29 March 2000, notifying him of the decision of PSAC, the Plaintiff have this evidence: "Q. And you, although you accepted that you had a bad knee at that point? A. Yes. Q. Did you consider that you were capable of performing general duties at that time? A. I thought my knee may get better. But as for as I was concerned I was hoping to accept the pension" [my emphasis].

Plaintiff's psychic symptoms 1998 to 2010

In [66] above I commented on records of the Police Psychology Unit, the first of which is dated 21 January 1998. I referred to other undated notes. I ought expand on that observation. The relevant coversheet has clearly been made by Ms Wendy McCartney, who dated and signed notes on 21 January 1998. On one numbering system they are marked pages 0297 of 1564 to 0299 of 1564. On another numbering system the coversheet has no number but the two subsequent pages are numbered 15 and 16. The next page is numbered 0290 of 1564 on the first system and numbered 7 on the second system but is clearly out of order. On both numbering systems it would place the pages between entries made on 17 October 1991 on the coversheet for the entries commencing on 24 November 1993. It refers to personal relationships and refers to an engagement in September 1997 and a "blow up over $" in November 1997. Hence, I placed it immediately after Ms McCartney's notes of 21 January 1998, but the document is not complete and its source is unknown. On my arrangement of the records the next two pages are numbered on the first system as pages 0300 and 0301 of 1564 and as 17 and 18 in the other system, i.e. immediately following Ms McCartney's notes on each system. These 2 pages of notes only refer to the Plaintiff's relationship with Jayne and her children. They give for the Plaintiff the same home phone numbers and the same "work phone" numbers recorded by Ms McCartney on her cover sheet. An inference must be drawn that these last 2 pages of Police Psychology Unit notes were made whilst the Plaintiff was still attached to Kings Cross Police, probably when he was still working there or expected to return there soon e.g. in February 1998.
There is no record of the Plaintiff's having psychic symptoms referable to his work from that time until his medical discharge on 6 April 2000. However, he was seeing doctors about his knee during that period, in particular his general practitioner Dr Michael Johnstone but there is no medical report from him, his notes were not tendered, he was not called to give evidence and no attempt was made to explain the absence of the doctor's records, reports, or person. The Plaintiff's position was that he had symptoms from time to time but the evidence is unclear about the frequency, the duration and the severity of any symptoms and as to how they may have discommoded the Plaintiff or interfered in his functioning in his work life, his family life, or his recreational activities.
An example of this is found in the Plaintiff's oral evidence. He was questioned about the history recorded on 8 January 1997 (see [58] to [60] above) by a police psychologist. This evidence was given: "Q. And on 8 January 97 the psychologist telephoned you to catch up with you, remember that? A. Not specifically your Honour but yes. Q. You told the psychologist you'd only had one dream since the last interview with him and that was a mild one, remember telling him that? A. That's possible your Honour yes. Q. You said you no longer had problems with recurrent thoughts of the murder. A. That's possible. Q. According to the psychologist notes, you only developed problems about this murder about a month before you were due to give evidence at the trial and once he pleaded guilty your problems appear to have gone away within a couple of months? A. Your Honour the problems - the issues in relation to that matter have never gone away. They've always been with me." What does the last answer mean? Does it mean that the memory has not gone away, or does it mean more than that? Does it mean that sometimes he had dreams about it? Or nightmares? Or intrusive thoughts? Or backflashes? Or any combination of these symptoms? If so, how often? For how long? Of what intensity? These questions have not been asked, let alone answered.
This paucity of evidence continues from the time of the Plaintiff's discharge until 28 October 2009 (see [77] above). When the Plaintiff was giving his evidence in chief, I asked these questions and the Plaintiff gave these answers: "Q. …. have you ever been treated by a psychiatrist between when you were medically discharged on 6 April 2000 up until the time you applied to work for [WSC]? Ever had any…. A. Never Q. … psychiatric treatment? A. Never Q. ….Ever told in that period of time any general practitioner about mental health problems that you might have had? A. No, I've never spoken to a GP".
In cross-examination, the Plaintiff gave this evidence: "Q. I think from the time of your medical discharge up to the time you got your job with Wyong Council, you didn't seek any orthopaedic treatment in relation to your left leg, did you? A. No, occasionally, I went to a physiotherapist to have some work put on it. Q. And in that period of time also, you never had an occasion to have any psychological treatment; is that the case? A. Sir, I didn't." Later this evidence was given: "Q. In terms of the jobs that you're able to hold down since your medical discharge from the NSW Police Force, you agree, as you agreed with his Honour yesterday, that you never were required - well you never sought psychiatric treatment over the period 2000 to 2009, did you? A. No, sir, I didn't." and after an objection by Mr Morris SC: "Q. Whatever symptoms you may have had during that period, you didn't think they were serious enough to have medical treatment for, is that right? A. That's correct, sir. May I explain?" and shortly thereafter: "Q. And over that period 2000 to 2009, you've already agreed with the proposition that you didn't seek medical attention for any psychological problem, correct? A. Correct."
The Plaintiff was questioned about the medical questionnaire he completed to join WSC - see [94] above. In chief he gave this evidence: "Q. -where it says, 'Psychiatric illness.' A. Yes. Q. Now just tell his Honour what view you had as at 9 July 2009 with respect to that question? A. I, I knew I had issues in terms of my former policing career in terms of restlessness, irritability and nightmares or dreams and things like that, but from my point of view I didn't have a psychiatric problem. I had other issues. It wasn't until later on that I've now discovered that I've, that I've had psychiatric issues. Q. Right. Had you been assessed - by July 2009 had you ever been assessed by a psychiatrist. A. Never. Q. Or been given a diagnosis by a psychiatrist? A. Never." That evidence was immediately followed by that which I quoted in par [156] above. In cross-examination, this evidence was given: "Q. When you ticked that box saying no psychiatric illness, you indeed didn't think at the time you did have a psychiatric illness, did you? A. No, I had, I had - from my point of view, sir, I had psychological issues. But from my recollection of people with psychiatric issues, I wasn't certified or anything of that nature which I know over my policing career from my point of view, you know, I'd taken people to a psychiatric hospital, and I didn't have those issues. I wasn't seeing spiders on walls or trying to kill people or trying to kill myself at that time. I had, from my point of view, psychological issues, but at that point not psychiatric issues. Q. The psychological issues that you think you had at that time, you now think, you would now classify as psychiatric issues, would you? A. I suppose-- MORRIS: I object. HIS HONOUR: No, I'll allow the question. I understand why you've objected, Mr Morris, but the question he's being asked is not anything to do with expertise, but it merely is a matter of characterisation. I allow the question. WITNESS: Sorry, Mr Ower, could you repeat the question? HIS HONOUR: Repeat the question, Mr Ower. OWER Q. The psychological issues that you say you had then, you would now classify in your own mind, in your understanding, as psychiatric issues, would you? A. What I know to be now from speaking to a number of psychiatrists, yes. Q. You would accept that you have psychiatric issues now, is that right? A. I do, sir. Q. What I want to put to you is this, that the answer that you gave yesterday that I just read out to you-- A. Yes, sir. Q. -was an answer that basically telescopes your problems now to what you think they might have been back then. What do you say about that? A. That's not true, sir. I always had the problems in terms of irritability, being withdrawn. I always had those issues. They never, ever, went away. Never." I am prepared to accept the distinction made by the Plaintiff between psychiatric and psychological symptoms, but the distinction, I believe, has been drawn with the benefit of hindsight, a form of ex post facto reasoning. Of course, the Plaintiff is suggesting that being irritable and socially withdrawn are symptoms of PTSD and they might be. DSM-5 PTSD Criterion D6 is "Feelings of detachment of estrangement from others", and Criterion E1 is "Irritable behaviour and angry outbursts (with little or no provocation) typically experienced as verbal or physical aggression toward people or objects", but I find it difficult to accept that the Plaintiff could hold down the jobs he had between October 1999 and December 2010 if he were suffering such symptoms at any meaningful level, for any meaningful period. Irritability and social shyness could merely be character traits.
The Plaintiff's primary written submissions, MFI-4, contain this: "56. Thereafter the Plaintiff undertook a number of HR jobs. He now claims to have still suffered symptoms but was able to function with minor stresses and difficulties with his tolerance and temper from time to time. He states he was unaware he was suffering from a psychiatric condition. 57. Accordingly, when he completed his application form for Wyong Shire Council, he did not disclose the existence of psychiatric illness. Further, when he was away from the NSWPF (and inferentially away from trauma and conflict, but for a few occasions), he did not suffer significantly disabling psychiatric disturbance. He had an incident at Virgin Airways where he was threatened by a union official which caused him disturbance, and he was irritable and angry on occasions and intolerant." The incident at Virgin Blue Airlines arose in this fashion on the evidence which went on to describe what occurred: "Q. Now from the time you left the police force to the time you started that job at the council, you had a number of HR roles as his Honour has taken you through. A. Yes. Q. Just describe - can you tell his Honour the extent to which those riles involved face to face conflict resolution or other tasks, would you just explain to his Honour? A. Sure. Most of the face to face roles were like Virgin Blue, Royal Prince Alfred Hospital, with Fairfax. There were some roles such as the roles I had with WorkCover, with - the role with the Northern Sydney Central Health Service where I was - and also Life Without Barriers where I was left alone, mainly because I was dealing with putting together job descriptions, so a lot of the time I would work from home, so I had no real interactions with people during that time. The other roles I've had definitely involve conflict. A good one would be Virgin Blue airlines where I was threatened by a TWO member, he threatened to kill me and my family, he rang me late one night while I was working with them and threatened to kill me and that, that unsettled me very much so during that time as a result of the threat to kill me. That was reported to the TWU and the general manager at the time had a discussion with the - a senior member or actually the TWU president or whoever he was at that particular time and that particular gentleman was removed but because of that indigence that totally unsettled me and I didn't feel comfortable working there anymore. Q. So what did you do? A. I left, I resigned. HIS HONOUR Q. Well why didn't you report it to the police? If somebody threatens you with death that's a criminal offence isn't it? A. Yes your Honour but at that particular time the general manager and the TWU - and the company sorted it out themselves. Q. But nothing stopped you from reporting it to the police? A. No your Honour." A death threat, particularly to one's family, by someone who is angry or enraged, would be unsettling for anyone and could provoke symptoms of anxiety and psychic stress, it does not follow that if the Plaintiff were upset by this event, he must have been experiencing symptoms of PTSD.
As the tribunal of fact, I must take guard against ex post facto reasoning and reconstruction. It must be recalled that in 2021 the Plaintiff was giving evidence about events spanning the period from his commencement in Blacktown general duties policing on 18 February 1990 to his attendance upon Dr Kriek on 13 December 2010, after being bullied by MK, a period of 21 years, that ended 11 years earlier. We are all aware of the frailty of human memory and the impulse to reconstruct to tell a story from the part. This aspect of this case is highlighted by this exchange in cross-examination: "Q. So, you'll agree with me - as you've agreed with his Honour - that it's really only about your left knee that you were getting medically discharged and you knew that at the time, didn't you? A. I knew that at the time, sir. I had no idea that I had any other issues at the time. Q. Well, what I'm putting to you is this; that you didn't have any other issues at the time. Do you agree with that or not? A. No, I don't agree with that."

Scheme of the Act

The earliest available electronic copy of the Act available to me is as at 10 August 2001. I have available in Chambers hard copies of the Act as at 29 July 1985 and 25 March 2003. The relevant time to consider the Act is on 6 April 2000, the date of the Plaintiff's medical discharge. Comparing the versions of the Act available to me, I believe that the electronic version as at 10 August 2001 is, in substance, the relevant version, The relevant provisions of the Act appear to me to be these: "7 Superannuation allowance except where member hurt on duty (1) The annual superannuation allowance for a member of the police force who has served 20 years or more of equivalent full-time service and retires on or after attaining the age of 60 years or, being under that age, is discharged after being certified under section 8 (1) to be incapable, from infirmity of body or mind, of discharging the duties of the member's office, is an amount calculated in accordance with the following formula: P = Y x ESR where: P represents the amount of the annual superannuation allowance payable. Y represents a percentage of the member's attributed salary of office at the date of the member's retirement or discharge equal to the sum of: (a) the percentage specified in the Second Column of the Table to this subsection opposite the total number of years of both full-time and part-time service specified in the First Column of that Table that has been completed by the member, and (b) in the case of a person who has completed less than 30 years of equivalent full-time service, one-twelfth of 2.425 per cent for each month of full-time or part-time service that has been completed by the member after the last completed year of service referred to in paragraph (a), ESR represents the equivalent service ratio of the member as at the date of the member's retirement or discharge. First Column Second Column Completed years of both full-time and part-time service of member Amount per centum 20 48.500 21 50.925 22 53.350 23 55.775 24 58.200 25 60.625 26 63.050 27 65.475 28 67.900 29 70.325 30 or more 72.750

(2) An annual superannuation allowance under subsection (1) shall not be payable to a member of the police force to whom an annual superannuation allowance is payable under section 10. (3) If STC has made a determination under section 14AA in relation to an annual superannuation allowance payable under subsection (1), the amount of the allowance is reduced by the amount specified in STC's determination. 7AA Superannuation allowance on early retirement (1) (Repealed) (2) Subject to subsection (2B), the annual superannuation allowance for a member of the police force who retires on or after reaching the age of 55 years and before reaching the age of 60 years is the amount calculated in accordance with the following formula:

where: P represents the annual superannuation allowance payable. S represents the member's attributed salary of office at the date of retirement. V represents the total number of months of both full-time and part-time service that has been completed by the member (subject to a maximum of 360 months of equivalent full-time service). A represents the age of the member at the date of retirement (expressed in months). ESR represents the equivalent service ratio of the member as at the date of the member's retirement. (2A) For the purposes of V in the formula in subsection (2), if the total number of months of both full-time and part-time service is not a whole number of months, any part of a month is to be disregarded. (2AA) For the purposes of A in the formula in subsection (2), a part of a month of age is to be disregarded. (2B) If STC has made a determination under section 14AA in relation to an annual superannuation allowance payable under subsection (2), the amount of the allowance is reduced by the amount specified in STC's determination. (3) An annual superannuation allowance under subsection (2) shall not be payable: (a) (Repealed) (b) to a member of the police force to whom an annual superannuation allowance is payable under section 7 or 10. … 8 Determination of members medically unfit (1) A superannuation allowance or gratuity shall not be granted or paid under section 7 or 14 to a member of the police force who: (a) is discharged after the commencement of the Police Regulation (Superannuation and Appeals) Amendment Act 1973, and (b) at the time of the member's discharge is under the age of sixty years, unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from infirmity of body or mind, of discharging the duties of the member's office. (2) STC may certify that a member of the police force is incapable of discharging the duties of the member's office only if the member is incapable of discharging the duties of the office in the police force in which the member is then employed and also any other office in the police force: (a) which is available to the member, (b) which is not lower in rank than the office in which the member is then employed, and (c) in which it would be reasonable to expect the member to be employed. (3) In this section: medical advice means the advice of: (a) 2 members of the Police Medical Board, or (b) any one or more medical practitioners nominated by the STC. … 10 Superannuation allowance where member hurt on duty (1) In this section: attributed salary of office means: (a) in relation to a member of the police force who is discharged - the member's attributed salary of office at the date of the member's discharge, or (b) in relation to a former member of the police force who resigned or retired - the member's attributed salary of office at the date of the member's resignation or retirement. disabled member of the police force means: (a) a member of the police force who is discharged after being certified, pursuant to section 10B (1), to be incapable, from a specified infirmity of body or mind, of discharging the duties of the member's office, or (b) a former member of the police force who resigned or retired and who, according to a certificate given pursuant to section 10B (2) at any time after the member's resignation or retirement, would have been incapable, from an infirmity of body or mind, of discharging the duties of the member's office at the time of the member's resignation or retirement, that infirmity being determined, pursuant to section 10B (3) or on appeal, to have been caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be. retired includes discharged as referred to in section 7 or 14. (1A) Subject to this section, the annual superannuation allowance for a disabled member of the police force is: (a) an amount that is equal to 72.75 per cent of the member's attributed salary of office, (b) except where paragraph (c) applies, an additional amount that is: (i) not more than 12.25 per cent of the member's attributed salary of office, and (ii) commensurate, in the opinion of STC, with the member's incapacity for work outside the police force, and (c) if the disabled member is totally incapacitated for work outside the police force and, in the opinion of STC, the member was hurt on duty because the member was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment, an additional amount that is: (i) not less than 12.25 per cent and not more than 27.25 per cent of the member's attributed salary of office, and (ii) commensurate, in the opinion of STC, with the risks to which the member was so required to be exposed, multiplied by the equivalent service ratio of the member as at the date of the member's discharge, resignation or retirement. (1AA) If STC has made a determination under section 14AA in relation to an annual superannuation allowance payable under this section, the amount of the allowance is reduced by the amount specified in STC's determination. (1B) An annual superannuation allowance may be granted under this section to a disabled member of the police force whatever the member's length of service. (1C) Where a former member of the police force who resigned or retired is granted an annual superannuation allowance under this section, the allowance shall, at the time it first becomes payable, be increased or reduced, as the case may require, by the total amount (if any) that it would have been increased or reduced under Division 2 or any other provision of this Act if it had been granted when the former member resigned or retired. (1D) STC may: (a) make a determination at any time of an additional amount of a superannuation allowance under this section, and (b) vary any such determination at any time, and may direct that the determination or variation take effect from such date as STC considers appropriate. (2) An annual superannuation allowance under this section shall not be payable to a former member of the police force who: (a) commuted under Division 3 a superannuation allowance that previously became payable to the former member under this Act, or (b) has been paid a disengagement benefit under section 8A. (3)-(7) (Repealed) … 10B Medical examination of disabled member and determination of whether hurt on duty (1) An annual superannuation allowance shall not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of discharging the duties of the member's office. (2) An annual superannuation allowance shall not be granted under section 10 to a former member of the police force who resigned or retired unless: (a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, (a1) where the regulations so require, the notification was in or to the effect of the prescribed form, and (b) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member would have been incapable, from that infirmity of body or mind, of discharging the duties of the member's office at the time of the member's resignation or retirement. (2A) STC may certify that a member of the police force is incapable of discharging the duties of the member's office only if the member is incapable of discharging the duties of the office in the police force in which the member is then employed and also any other office in the police force: (a) which is available to the member, (b) which is not lower in rank than the office in which the member is then employed, and (c) in which it would be reasonable to expect the member to be employed. (2B) STC may certify that a former member of the police force would have been incapable of discharging the duties of the member's office if the member would have been incapable of discharging the duties of the office in the police force in which the member was employed at the time of the member's resignation or retirement and also any other office in the police force: (a) which was available to the member at that time, (b) which was not lower in rank than the office in which the member was then employed, and (c) in which it would have been reasonable to expect the member to have been employed. (2C) In this section: medical advice means the advice of: (a) 2 members of the Police Medical Board, or (b) any one or more medical practitioners nominated by the STC. (3) Where a member or former member of the police force is duly certified under subsection (1) or (2), the Commissioner of Police shall: (a) decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be, and the date or dates on which the member or former member was hurt on duty, and (b) give the member or former member written notification of the decision. … 14 Gratuity for discharged members not hurt on duty (1) Where a member of the police force: (a) has served for a period less than 20 years of equivalent full-time service, (b) is discharged after being certified, pursuant to section 8 (1) or on appeal, to be incapable, from an infirmity of body or mind, of discharging the duties of the member's office, and (c) is not entitled to be granted an annual superannuation allowance under section 10, STC shall, subject to subsection (3), pay to the member a gratuity of 24 months' pay at the rate of the member's attributed salary of office at the date of the member's discharge. (2) Where a former member of the police force who, after the member's discharge, received the gratuity payable under subsection (1) is thereafter entitled to an annual superannuation allowance or a gratuity by reason of having been hurt on duty when he or she was a member of the police force, the amount of the gratuity paid under subsection (1) shall be deducted from the annual superannuation allowance or gratuity in such instalments and at such times as STC may determine. (3) If STC has made a determination under section 14AA in relation to a gratuity payable under subsection (1), the amount of the gratuity is reduced by the amount specified in STC's determination. … 21 Determination by Compensation Court (1) A person who considers himself or herself aggrieved by: (a) a decision made by STC on a matter that arises under this Act by reason of a member of the police force being hurt on duty, or (b) a decision made by the Commissioner of Police under section 10B (3) (a), 12C (1), 12C (2) or 12D (4) (a), may, within the period of 6 months after the person is notified of that decision, apply to the Compensation Court for a determination in relation to that decision. (2) Notification of a decision under subsection (1) is to be given in writing. (3) STC or the Commissioner of Police, as the case may be, is entitled to be represented at the hearing of an application under this section. (4) The Compensation Court, after considering an application under this section, may make a determination that the decision of STC or the Commissioner of Police, as the case may be, in respect of which the application was made: (a) be confirmed, or (b) be set aside and replaced by a different decision made by the Compensation Court. (5) The Compensation Court shall not make a decision referred to in subsection (4) (b) unless STC or the Commissioner of Police, as the case may be, could pursuant to this Act make that decision. (6) Where the Compensation Court makes a decision referred to in subsection (4) (b), that decision shall, for the purposes of this Act, be deemed to be made by STC or the Commissioner of Police, as the case may be, and shall be carried into effect. (7) (Repealed) (8) The Compensation Court, after hearing an application under this section, may assess the costs of the successful party to the application (including costs of representation and witness expenses, if any) and order that the costs so assessed or any part of them be paid to the successful party by any other party within a time specified in the order. (9) The Compensation Court shall not order the payment of costs under subsection (8) by the applicant for a determination under this section unless satisfied that the application was frivolous or vexatious or was made fraudulently or without proper justification. (10) Where costs assessed under subsection (8) are not paid within the time specified in the order made under that subsection in respect of them, the person in whose favour the order was made may recover the costs in a court of competent jurisdiction as a debt due to that person by the person against whom the order was made. (11) In this section: Compensation Court means the Compensation Court of New South Wales constituted under the Compensation Court Act 1984."

The basic qualification for receiving a superannuation allowance (popularly called a "pension") was service for at least 20 years and attaining the age of 60 years. If a member had served for 20 years but he had not yet reached the age of 60 years he could still obtain a superannuation allowance if he were "discharged after being certified under s8(1) to be incapable, from infirmity of mind or body, of discharging the duties of the member's office": s 7(1). If the member were so discharged but had less than 20 years service he was entitled to "a gratuity" under section 14, of 2 years' salary of office as at the date of discharge. Section 7AA dealt with "earl retirement". Section 7AA(2), as in force on 29 July 1985, commenced thus: "The annual superannuation allowance for a member of the police force who- (a) has served for 30 years or more; and (b) retires upon or after attaining the age of 55 years and before attaining the age of 60 years, …" The original 30 years service requirement can be seen in the "360 months" in the Letter V in the formula.
Section 8 reiterates the requirement that neither a superannuation allowance under s 7 or a gratuity under s 14 is to be paid to a member who is discharged under the age of 60 years unless the Defendant, "having regard to medical advice on the condition and fitness for employment of the member" certifies that the member "to be incapable, from infirmity of body of mind, or personally exercising the functions of a police officer" that are referred to in the Police Act 1990. Such certification is usually delegated by the Defendant to PSAC pursuant to section 2J of the Act.
Section 10 obviously deals with the superannuation allowance where the member was HOD. Where such an allowance is payable, the member is not entitled, in addition, to the (lesser) superannuation allowances provided for in section 7 (s7(2)) or s7AA (s 7AA(3)) or the gratuity under s 14 (s14(2)).
In the definition of "disabled member of the police force" in s10(1) one must note that paragraphs (a) and (b) are disjunctive and that there is a disjunction in paragraph (b). The definition distinguishes: 1. a member … who is discharged after being certified, pursuant to s 10B(1), to be incapable from a specified infirmity of body or mind, of discharging the duties of the members office; 2. a former member who resigned who, according to a certificate given pursuant to s10B(2) after the member's resignation would have been incapable, from an infirmity of body or mind of discharging the duties of the members office at the time of the member's resignation; 3. a former member who retired and who, according to a certificate given pursuant to s10B(2) after the member's retirement would have been incapable, from an infirmity of body or mind, of discharging the duties of the member's office at the time of the member's retirement. The Plaintiff falls into the first of those 3 categories. He neither resigned nor retired. He does not fall into either the second or third category. He can not be granted a superannuation allowance under s10B(2), as he sought to do at one time.

Consideration

The Plaintiff's submissions conflate a number of concepts. A diagnosis is not an infirmity. A man can attend upon his general practitioner for a "check-up" perhaps at the request of his wife, life partner or employer. His GP detects raised blood pressure and routine blood testing reveals high levels of "bad" cholesterol. The man is provided with diagnoses of hypertension and hypercholesterolaemia and prescribed appropriate medication. However, the man is able to go about his normal activities both at work, at home and in the recreational field. The provision of a diagnosis does not establish an infirmity.
Equally, the existence of symptoms, especially if they be intermittent, does not establish an infirmity. Prior to the COVID-19 pandemic it was very common for employees to go about their normal work with a cough, a cold, a sore throat or a mild headache. The self-employed often show a greater propensity to do so. Many people who have sedentary or clerical jobs perform their duties with backache or neckache, or with osteoarthritic knees or hips. Symptoms of such chronic conditions can be uncomfortable, painful but may cause no incapacity for the sufferer's normal activities and therefore no disability.
A vulnerability to the onset of a medical problem is not a disability. Workers compensation legislation requires that death or incapacity "results from" an injury. The locus classicus for the meaning of these words is Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796. Kirby P (as he then was), with whom Sheller and Powell JJA agreed, discussed the "abiding problem of causation" commencing at NSWLR 461B: "In Morris v George [1977] 2 NSWLR 552, Glass JA (at 579) observed that 'few subjects … have inspired so much legal exegesis as causation'. Unfortunately, the courts have not spoken with an entirely clear voice on this subject. Doubtless this is because the notion of causation (whether expressed in terms of the verb 'caused' or the formula 'results from'), is itself inherently uncertain. I called this to attention in Pirelli Ericsson Cables Ltd (formerly Conqueror Cables Pty Ltd) v Spadina (Court of Appeal, 24 April 1986, unreported): 'The problems presented to the law by issue of causation are well known. They have agitated philosophers as well as lawyers. In the common law context, light has been cast by the publication in 1959, by H L A Hart and A M Honoré of their analytical text Causation in the Law. That book exposed the defects which had appeared in earlier legal analysis of causation. It submitted the notion of causation in the legal context to clearer analysis. For example, it was made plain by Hart and Honoré that what appears to be a single question 'really involves two distinct issues'. The first is whether the subject injury would have occurred if the conduct complained of had not taken place. The second is whether there is any principle which precludes treatment of the injury from being taken to be as consequence of the conduct, for legal purposes. These issues were recently considered by the Court in Brocker v Roscoe Transport Pty Ltd (Court of Appeal, 22 October 1985, unreported).' The phrase 'results from', which is the formula to be applied both under the 1926 and 1987 workers compensation statutes, involves the use of ordinary English words. Dictionaries suggest that it means 'to arise as a consequence … to end or conclude in a specified manner'. The expression is not a term of art. It is an ordinary English phrase. But in its application in the present context, it is appropriate to take into account the reflections of distinguished judges. Unfortunately, those reflections have not always been consistent. It is also appropriate to take into account the fact that the phrase appears in a compensation statute. Such a statute should not be construed narrowly, for it provides benefits which are extremely important to those affected. By the same token, the statute may not be construed unrealistically so as to stretch unreasonably the burdens imposed upon employers and their insurers. Those burdens require a relevant employment connection, as defined in the statutes, before compensation will be held payable. From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate. Thus, in Dunham v Clare [1902] 2 KB 292, the medical evidence was that a condition of erysipelas set in about six days after 'the introduction of the germ which leads to the disease'. It set in fifteen days after the date of the accident, so that it was(1994) 35 NSWLR 452 at 462 acknowledged that it could not have resulted from the accident alone. In Ystradowen Colliery Co, Ltd v Griffiths [1909] 2 KB 533, Buckley LJ, explaining Dunham (at 537) said: 'The suggestion of the medical evidence was that the wound had probably been reopened, this being possibly caused by the deceased walking to and from the hospital. There was there, therefore, a disease produced, not by the accident alone, but by something else which would not have existed but for the accident - there was a wound in the man's foot which probably he reopened by walking to and from the hospital, wearing possibly a dirty stocking.' The worker recovered in Dunham. The facts in Ystradowen v Griffiths were (at 537): 'The man sustained a severe injury to his knee by accident, and thereby his vitality and his powers of locomotion were reduced. He had to go home. He was taken part of the way home by some workmen; he had to go about another mile alone, and he travelled that mile with great difficulty, and, I suppose, in great pain. He took something like a couple of hours to cover that mile, crawling along as best he could. He caught a very bad cold. That cold may have resulted not merely from his exposure to weather, but from his being so exposed when his vitality was diminished by the shock of the accident, and by his being exposed for a longer time by reason of his reduced state of muscular activity. The cold may have resulted from the accident and from something else which would not have existed but for the accident, that is to say, from his having to walk with excessive slowness in cold weather. All that, I think, is included in the words 'results from the injury'. All that the learned county court judge did here was to come to the conclusion that the condition was not the natural result of the injury. I do not think he put the proper question to himself when he put that question.' The English Court of Appeal unanimously sent the matter back to the County Court judge. Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act. For a time, a view was propounded that the formula 'results from' involved some notion of a proximate relationship between the relevant injury and the subsequent incapacity or death. This view can possibly be traced to dicta of Taylor J in Commonwealth v Butler (1988) 102 CLR 465 at 476. It certainly influenced the opinion of Moffitt P and Priestley JA in Pickersgill v Freightbases. In a sense, it was a harkening back to the notion which had led the County Court judges in England in Dunham v Clare and Ystradowen v Griffiths to reject the workers' claims as beyond the connotation of something which 'results from the injury'. Certainly, for a time following Pickersgill v Freightbases, the Compensation Commission effectively required that to recover, the worker (or in a death claim, the dependants) should have to show that the work injury was the causative factor which precipitated immediately the consequences leading to injury or death. Unfortunately, when Pickersgill v Freightbases was decided by this Court, the Court was not referred to the decision of the High Court in Conkey and (1994) 35 NSWLR 452 at 463; Sons Ltd v Miller (1977) 51 ALJR 583; 16 ALR 479. In that case, Barwick CJ (at 585; 485), giving the judgment of a unanimous High Court (Gibbs, Stephen, Jacobs and Murphy JJ concurring), reverted to the dicta of Taylor J in Commonwealth v Butler and said: 'The case does not decide any principle of law. The statute requires the death to result from work-caused injury: whether it does or does not is a matter of fact. Doubtless, in applying the concepts of causation, a statement by an eminent judge such as I have quoted is entitled to respect by those who have themselves to decide a question of fact upon the evidence of the case before them. But its persuasion rises no higher; and certainly does not bind in point of precedent. … I see nothing in anything said by the Justices in The Commonwealth v Butler or in the ultimate decision of that case which requires the conclusion that the evidence in this case did not support the award or that the Commissioner's findings were inadequate to do so.' Murphy J specifically indicated his disagreement with the reasoning of the decision in Butler's case. If it had stood there, the law would simply have corrected the Butler/Pickersgill aberration. It would have returned to the principle of dealing with each case simply as a matter of fact. However, as McHugh JA pointed out in Woolworths Ltd v Allen (at 14), some of the remarks of Lord Keith of Kinkel in Bushby v Morris, appear to approve the dicta in Commonwealth v Butler. Furthermore, to complicate the matter, Deane J in National and General Insurance Co Ltd v South British Insurance Co Ltd (1982) 149 CLR 327 at 336, cast doubt upon other remarks in Bushby v Morris to the effect that the common law principles of causation are applicable to workers compensation legislation. He referred, in this regard, to Commonwealth v Butler. These complications led McHugh JA to proffer this advice: 'Until either the High Court or this Court deals with the matter of causation in the Workers' Compensation Act authoritatively, it is my view that judges in the Compensation Court would be well advised to simply apply the words of the Act, without any of the glosses or explanations which can be found in cases such as Butler, Pickersgill and Bushby v Morris.' My own opinions in Woolworths Ltd v Allen, Pirelli and Australian Electrical Industries Pty Ltd v Marlborough (Court of Appeal, 16 June 1989, unreported) have been to the same effect. Certainly, the notion that 'results from' imports an idea of causation limited to the immediate proximate cause of incapacity or death, has been disapproved. In Australian Electrical Industries v Marlborough, my opinion to this effect was agreed in by Meagher JA. The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase 'results from', is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death 'results from' a work injury. What is required is a commonsense (1994) 35 NSWLR 452 at 464 evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death 'results from' the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death 'resulted from' the work injury which is impugned." [my emphasis]
The same subject was discussed, obiter, by Clarke JA (Priestley JA and Hunter AJA agreeing) in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87; 17 NSWCCR 716, commencing on the last line of NSWLR 95. His Honour discussed Morris v George [1977] 2 NSWLR 552 and went on to say: "When Morris v George went to the Privy Council (Bushby v Morris [1980] 1 NSWLR 81) that court endorsed the view that the test of causation under the workers compensation legislation was for all practical purposes the same as that applied in the field of tort (at 87) and their Lordships rejected the notion that incapacity could not result from more than one injury". His Honour then referred to March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 and to National and General Insurance Co. Ltd v South British Insurance Co. Ltd (1982) 149 CLR 327 and Woolworths v Allen (1988) 4 NSWCCR 99 (C.A.). His Honour then said: "My own inclination is to express my concurrence with the views of Hope JA and Glass JA and the Privy Council, and I am emboldened in the view by the recent decision of the High Court in Accident Compensation Commission v C E Health Underwriting & Insurance (Aust.) Pty Ltd (1994) 68 ALJR 525". His Honour then quoted the learned judgment of Brennan J in that case. His Honour then discussed Kooragang Cement Ltd v Bates and then said this: "I agree with those observations, but would add that in light of the judgment in Accident Compensation Commission v C E Health, I do not think there is any impediment to my acceptance of the view that the common law test applied and that the relevant inquiry directs attention to whether the injury caused or materially contributed to the incapacity. Accordingly, the approach evident in Morris v George, which reflected the restrictions imposed by the search for a proximate or direct cause, should, in my view, no longer be regarded as sound." The point I am seeking to make is that is not suggested that the common law test of causation in tort does permit vulnerability to be a substantive cause.
I turn now to consider Dr Bertucen's evidence concerning causation. His report of 31 October 2019 contains this history: "At the time of Mr Wilson's medical discharge in early 2000 he was convalescing in hospital. Sometime earlier he had been working in an administrative role with Ms Christine Nixon in the Policy & Procedures Unit. Nonetheless he stated that he had been directed to return to operational work that year by a Superintendent, whom he had accused several years earlier of engaging in corrupt conduct. The career ending knee injury occurred directly as a result of his re-engagement in operational police work. By the time of his withdrawal from police work however he claims that he was still experiencing symptoms of post traumatic stress disorder including avoidance of media triggers (TV news or horror movies) intrusive daytime unwanted memories of many previous traumas, sleep disturbance with hyper arousal and graphic nightmares. Nonetheless Mr Wilson received no psychiatric treatments at all over the next 9 years following his withdrawal from the Police Force and he preferred to concentrate on 'getting on with life outside the Police'. He recalls however being an isolative and frequently prickly individual and his condition fluctuated. He commenced psychotropic medication (Cipramil 40 mgs) and therapy with Ms [Colwell] following his most recent significant regression in 2009. He continues to use Cipramil to the present. The features of sleep disturbance, emotional isolation, affective dysregulation, reclusiveness and irritability have persisted to this day despite low frequency psychiatric treatments." The first line of the history I have just quoted is obviously erroneous. At the time of his medical discharge the Plaintiff was working for Rail Services Australia and as a contract teacher at Campbelltown TAFE: see [82] and [83] above. The symptoms recorded by Dr Bertucen that the Plaintiff had at that time are matters of history only, not contemporaneous medical complaint, as Dr Bertucen first saw the Plaintiff, at the request of his solicitor on 9 May 2019, nineteen years later. Furthermore, the Plaintiff gave no evidence of having those complaints at that time. I assume that the "most recent significant regression" was the Plaintiff's interaction with MK which lead to his attendance upon Dr Kriek on 13 December 2010. Dr Bertucen's opinion contains the following: "5. In my opinion Mr Wilson (and by his own recollection) Mr Wilson was almost certainly suffering from symptoms of post traumatic stress disorder at the time of his withdrawal from the police force on 29 March 2000 (including the aforementioned symptoms of sleep disturbance, nocturnal hyperarousal, affective dysregulation, intrusive daytime unwanted recollections of previous traumas, emotional sensitisation (and avoidant behaviour) dissociation and emotional numbing. 6. While Mr Wilson was incapacitated from operational duties at this time, primarily on the basis of his physical injury, I am of the view that if he had returned to operational duties he would have almost certainly succumbed to his psychological condition within a short space of time. As such, I am of the opinion that Mr Wilson was incapacitated for his pre-injury duties as a consequence of his suffering from post traumatic stress disorder. 7. If Mr Wilson had returned to operational duties after the 29th of March 2000, it is almost certain that he would have experienced further emotional decompensation (similar to his suicidal episode in 1991) at some future stage. It is possible however that Mr Wilson may well have been able to progress hic career in a non operation role (such as the Police and Procedures Unit) however, this is speculative." Par [5] of that opinion is based on an incorrect history and a history not proved in evidence. Par [6] is in fact speculation. The Plaintiff could not have returned to operational policing because of the condition of his left knee. It appears that no suitable work could be found for him in NSWP and the type of work which he was seeking may not have been available for police officers. Dr Bertucen's report completely elides the impact on the Plaintiff's psyche of his interaction with MK.
Dr Bertucen gave oral evidence. He appears to have been required for cross-examination by the Defendant. Mr Ower took the Doctor to that part of his report that I quoted at the beginning of the last paragraph and the questioning continued in this way: "Q. Notwithstanding that history, what was your view on his ability to maintain a high level of employment between 2000 and 2009? A. The fact that he - Mr Wilson was able to maintain a reasonably high standard of responsible employment is not altogether incompatible with having a diagnosis of chronic post-traumatic stress disorder. Chronic PTSD as workers in the field will tell you is a long-term fluctuating condition. Symptoms can go into relative remission and then can relapse at various junctures due to particular triggers or sometimes even spontaneously. So, the fact that he had withdrawn from frontline police work and from 2000 to 2009 was working in an entirely different field, it may well have been a welcome change for Mr Wilson not being exposed in a routine basis to horrific policing traumas and despite the fact that he had certain residual symptoms, it is in my opinion not unlikely or not fanciful that he would've been able to maintain responsible employment of an alternative nature despite having a modicum of persisting PTSD symptomology. Q. Is it more likely than not that there could be some symptoms of PTSD without the fully blown diagnostic disorder? A. Well, correct. So, either a, a, a relatively remitted level of PTSD symptomatology or a, a certain we could maybe say subthreshold constellation of symptoms which would've been there and would've been present but not necessarily disabling. Q. Could you also label that as subsyndromal? A. Well, possibly. Possibly. Not, not-- Q. If I could-- A. Sorry. Q. No, go on. A. I was just saying again relying on - for example, I was relying on Mr Wilson's recollections and personal history, but I don't believe I had access for example to GP notes from 2000 to 2009 which may have made mention of symptoms of depression and anxiety. Q. I want you to assume that he didn't consult any medical practitioner over the period of time in relation to his symptoms. Is it, in those circumstances, more likely than not that he didn't have the full constellation of symptoms to warrant a diagnosis of PTSD over that time? A. I wouldn't say that he would not necessarily have warranted the diagnosis. I, I consider that the diagnosis would still have been active throughout that decade, but the severity of symptomatology was obviously at a level which although present was clearly not disabling and, and permitted him to engage in other employment." A little later the Doctor said this: "I believe from the history that Mr Wilson had already certainly been diagnosed with post-traumatic stress disorder and had suffered the symptoms even until the mid 90s and in my opinion, the more likely scenario is that the condition which had emerged in the mid 90s went into relative remission after 2000 and was reactivated rather than a delayed onset which implied that it was a first episode. I believe that the more likely case would've been that it was a remission of post-traumatic stress disorder which was then reactivated in 2009 due to the effects of the trigger as mentioned." At the completion of Mr Ower's cross-examination I asked the Doctor some questions. This evidence was given: "Q. Initial history recorded by the general practitioner on 13 December, 2010, right? 'He has been working in his current situation for the past 18 months. It is my impression that over the last six months, he has been the victim of workplace bullying. His direct boss is not giving him clear direction, speaks to him in a demeaning way, makes him feel inadequate by frequently telling him that his performance is unsatisfactory, but without being able to substantiate why. He has been threatened with dismissal on a number of occasions and has been told that he doesn't fit in with the organisation in front of other people. He rarely has positive feedback, has developed clinical symptoms of depression.' The general practitioner administered DASS 21 and found extremely severe depression, extremely severe anxiety and severe stress. He appears to have diagnosed, either on that day or shortly thereafter, a depressive illness. A. Mm-hm. Q. Now is that sort of event something that could cause recurrence of PTSD symptoms? A. Well precisely your Honour. In fact many of the, many symptoms, the examples of bullying and harassment that you, that you related to seem to me very, very similar, very congruent to the conditions of Mr Wilson's exit from the police in 2000. In my report, your Honour, he was brusquely informed that 'we have no requirement for your skills in the New South Wales Police Force anymore', despite having obtained a Masters degree in commerce, workplace and relations and working as a - almost finishing a Master of Business Administration. So Mr Wilson's sense of rejection or actually eviction from the police force, despite feeling that he was a very capable person and had a lot to offer, and being effectively summarily rejected I think is very, very congruent with the scenario that you mentioned your Honour, which recurred in 2010. In fact I would say that would be just the precise kind of trigger that one would expect that would have reactivated memories of his very bitter exit from the police force ten years earlier and prompt a regression of his PTSD." A large part of the last answer amounts, in my view, to advocacy on the Doctor's part or, perhaps, the Doctor's being unaware of the circumstances of the Plaintiff's medical discharge. There was no evidence given to me about any brusque statement that NSWP had no need for the Plaintiff's skills, or of any rejection or eviction of the Plaintiff by NSWP. Indeed the grant of permission to undertake secondary employment speaks in the opposite direction.
Clearly Dr Bertucen accepted that any symptoms the Plaintiff may have had between medical discharge and 13 December 2010 were "not disabling", that his PTSD was "in relative remission" until there was a further trigger, a further trauma which caused a "relapse" or recurrence, a "re-occurring" of the PTSD.
Dr Diamond diagnosed PTSD, a co-morbid Major Depressive Disorder and Alcohol and Gambling Disorders. The inability of psychiatrists to apply Ockham's razor when providing a diagnosis (or diagnoses) has always bewildered me. Dr Diamond is the only medical practitioner to suggest that the Plaintiff had or has a problem with either alcohol or gambling, two topics not otherwise raised in the evidence. I leave them to one side. An episode of a Major Depressive Disorder is often diagnosed with PTSD, but takes the question of causation no further. Dr Diamond was asked a number of questions by the Plaintiff's solicitor. The answer he gave to the tenth question was this: "Mr Wilson did not see a suitably qualified expert prior to his discharge from the NSW Police Force. In my opinion is it not possible that Mr Wilson's underlying psychological injury would have gone into remission in the absence of further triggering stressors. By the stage that his police career ended, he was significantly and severely disable by the effects of the existing psychological injuries consistent with a diagnosis of Post Traumatic Stress Disorder and the other comorbid conditions. The severity of his existing psychiatric conditions meant that at later times when he was exposed to external stressors, the already existing psychiatric disorders were exacerbated giving rise to acute relapse of the psychiatric disorders that arose in the course of his service as a police officer and continued as existing conditions in the chronic form. In my opinion the exposure to external triggering events that occurred subsequent to discharge from the NSW Police Force would not have caused significant or sever Post Traumatic Stress Disorder in their own right. The exacerbation of psychiatric illness that did occur in the face of external stressors relied upon the existing underlying chronic psychiatric disorders that had their origin in the course of his service as a police officer."
Like Dr Bertucen, Dr Diamond gave oral evidence. In chief he was asked this question which erroneously dated the Plaintiff's difficulties with MK at WSC to 2009: "Q. In terms of the absence of - this gentleman left the police force in 2000, and it seems that it wasn't until 2009 that he ended up with a psychiatric stressor. He's told his Honour that the dreams and disturbed sleep and irritability continued but he was able to function at a fairly high level in a number of jobs, and it wasn't until he was at Wyong Shire Council that he ended up in conflict with his employer. Is the absence of complaint in that intervening nine year period a matter which causes you concern with respect to your diagnosis or not? And can you tell his Honour why? A. Well it doesn't cause me concern about my diagnosis. It's quite consistent with Mr Wilson's history, because one shouldn't only think of post-traumatic stress disorder as being manifested as the overt symptoms of nightmares, flashback experiences, panic attacks, anxieties. Very often individuals who have the illness as an entrenched chronic illness and who are capable people will work out ways to mask the illness or to distract themselves from the effects of the illness. And being busy, having goals, pursuing objectives, exercising skills in other areas, but also less helpful activities such as consuming large amounts of alcohol, often in injured female police officers there are eating disorders or very severe excessive exercises, that operate as a distraction and displacement activity that aims towards emotional numbing, and that often gives quiescent periods where the overt symptoms are not at the forefront but the vulnerability persists until there is over trigger. And so the history of Mr Wilson is consistent with that mechanism, and it's consistent with many injured police officers that I have treated over the years." In cross-examination, the Doctor explained that answer in this way: "his existing PTSD was triggered subsequently in the workplace conflicted state for reasons that were triggering of an old injury. Not the cause of a new one". Of the Plaintiff's employment history from 1999 to 2010 was "one of sequential failures… he worked to the limits of his capability and then he failed, in each case". There is no evidence before me that supports those assertions. The history recorded by Dr Diamond at pages 13 and 14 of his report can be construed to support his assertions, but such major assertions must, in my view, be supported by the Plaintiff's sworn evidence or other evidence either documentary or testimonial.
I have to apologise to Dr Diamond. I put some questions to him using the word "quiescent" which I attributed, erroneously, to him. The transcript proves that he did not. He gave his evidence by AVL as I have obviously misheard him. I asked the Doctor some questions. They included these: "Q. It's likely isn't it that this quiescence was in place between say - well he started working outside the Police Force in 99, and in fact before he left the police force, between 99 and 2009, and then came to the fore again when he had difficulties at Wyong Shire Council? A. Yes, I understand that. Q. So another medical practitioner, another psychiatrist, has referred to the condition as being subsyndromal, and now I have difficulty in trying to ascertain the difference between quiescent and subsyndromal, but it's really saying the same thing that the illness was persisting but at a level insufficient to require treatment because he was using his own methods of coping, and then eventually his own methods of coping failed and - is that another way of looking at it? A. I think that's reasonable your Honour, I think that that's what occurred." Mr Ower then resumed his cross-examination: "Q. It would also be the case that when the triggering event at Wyong Shire Council occurred that that triggering event caused a delayed onset PTSD condition? A. No, I don't think delayed onset is the right word; I don't think it was delayed onset. I think it was the triggering through the re-experiencing of being in the situation of being bullied, feeling helpless, overwhelmed and it exacerbated the underlying vulnerabilities. Q. But you accept don't you that it wasn't properly diagnosed until after that triggering of the event, correct? A. Yes it, that's not uncommon. I mean triggering is a part of PTSD and often the diagnosis in PTSD is not made when it first began, it's made in response to triggering events." Eventually at T188.49 Dr Diamond expressed the view that the "triggering entity" i.e. the trigger was the bullying of the Plaintiff by MK. At T189.49 the Dr said that the symptoms of PTSD became "overt" in the context of the Plaintiff's being bullied. At T191.31, the Doctor admitted that he used the word "incapacity" to mean "having a relevant symptom that interferes with function" of a patient, rather than having a disability that causes an inability to work.
I have already pointed out that there is in evidence a report of Dr Matthew Jones, Forensic Psychiatrist, or 30 July 2018. Dr Jones was qualified by the Defendant. His report was tendered by both the Plaintiff and the Defendant (Exhibit B item 5 and exhibit 2 item 5). However, it does not grapple with the issue with which I am currently concerned.
As I have already stated the Defendant qualified Dr Martin Allan, Consultant Psychiatrist, who did not examine the Plaintiff but merely reviewed the documents sent to him. In his report of 7 October 2021, he answered two questions sent to him by the Defendant's solicitor: "1. What medical infirmity/ies did Mr Wilson have on his last day of service with the Police Force? Please assume that Mr Wilson's last day of service was in February 1998. Physical infirmities are out of my area of expertise and will need to be addressed by another specialist. It is evidence that he had stopped working due to physical issues at that time. There are references to psychological symptoms present prior to that time but he had not apparently been incapacitated by any psychological distress prior to going off work. Assuming that his last day of services was in February 1998, there is no contemporary evidence that appears to support that he met criteria for a diagnosable posttraumatic stress disorder at that time. He had issues, including sleep problems and irritability in part due to personal circumstances during the 1990s and it is possible he may well have met criteria for an adjustment disorder with depressed and anxious mood at that point, but I feel that the evidence provided does not adequately support, during the 90s, him meeting criteria for a posttraumatic stress disorder. That is not to say that he may have had subsyndromal symptoms and the adjustment disorder symptoms that he was experiencing would appear, based on the history provided, to have evolved over time to become a posttraumatic stress disorder with its origin in the exposure to trauma during his time with the New South Wales Police Force. At the time of his medical discharge, due to his physical issues, I do not believe he was incapacitated from work due to any psychiatric reason. The posttraumatic stress disorder, which developed later, appears to significantly have its origin in the recurrent exposure to trauma following a long career in frontline policing, but I do not believe he was incapacitated from a psychiatric perspective as of February 1998. 2. Was Mr Wilson psychiatrically incapacitated for the actual duties of his office on the last day of his service with the Police Force? If so, how was this apparent? Please assume that Mr Wilson's last day of service was in February 1998. I do not regard Mr Wilson as having been psychiatrically incapacitated for the actual duties of his office on the last day of his service. I note that his last Day of service has been associated with his physical injury. I believe he would have returned to work thereafter if he had recovered from his physical injury, which of course he did not. Assuming his last day of service was February 1998, I am of the opinion that he had capacity to work at that time from a psychiatric perspective. I regard his posttraumatic stress disorder that he has gone on to develop as being intrinsically based in the recurrent exposure to trauma over his time within his career. His posttraumatic stress disorder had delayed onset, in my opinion, based on the history provided but to be clear, he was not psychiatrically incapacitated, in my opinion, for the duties of his position within the police force on his last day of service, that being February 1998." In a supplementary report dated 18 October 2021, the Doctor answered a further question: "I kindly request that you provide a supplementary report commenting n the report of Dr Bertucen and whether this report causes you to change your opinion as expressed in your earlier report. I have reviewed treating psychiatrist, Dr Jeff Bertucen's report, dated 27.04.2021 and I agree with Dr Bertucen that Mr Wilson's posttraumatic stress disorder has its origin in accumulative exposure to trauma experience during his time with the NSW Police Force. I note Dr Bertucen's response to Question 4 in his recent report, dated 27.04.2021, in which he states, 'In view of my experience with Mr Wilson, I remain of the view that Mr Wilson was suffering from disabling psychiatric symptomatology at March 2000 which led to his incapacity (from that date) to exercise his functions effectively as a Police Officer'. There is clearly no doubt as to the severity of Mr Wilson's ongoing mental distress but with regards to the specific questions that I was asked in my first report, I should reaffirm that I did not observe significant evidence to support suggestion that he was incapacitated due to his posttraumatic stress disorder at the time in question. I was specifically asked about his level of incapacity on his last day of service in February 1998. I did not observe any contemporaneous history to indicate that he was psychiatrically incapacitated at that point. I felt the information indicated the presence of significant physical issues, which led to him being unable to work. I am very respectful of Dr Bertucen's opinion but I did not feel there was other evidence to support the assertion that Mr Wilson was incapacitated from psychiatric reasons at the time of going off work in the late 1990s."
In answering the first question put to him, quoted in the report of 7 October 2021, Dr Allan used the words "subsyndromal symptoms". I assume he means by those words to convey the concept of symptoms insufficient to establish the diagnosis of PTSD. DSM 4 criterion F is this: "The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning". The same criterion appears in DSM 5 as criterion G. Whilst I accept that the Plaintiff may have had some symptoms from time to time after his medical discharge and prior to the Plaintiff's being bullied by MK at WSC, they could only have been, at most, mild. There is no evidence of any clinically significant distress in the period from 6 April 2000 to 12 December 2010 that impaired the Plaintiff in his relationship with his then wife, Jayne, or in other social areas, or in his various occupations or, indeed, in any other field. I am not persuaded on the balance of probabilities that the Plaintiff was disabled by the infirmity of mind known as PTSD immediately prior to or at the time of his medical discharge from NSWP on 6 April 2000. Such a disability can be seen as arising when PTSD was again diagnosed by Dr Govindaragan on 3 August 2015, but this recurrence of PTSD appears on the evidence to have been caused by the destabilisation of the Plaintiff's psyche caused by his having been bullied by MK at WSC in 2010.
The Plaintiff's written submissions, MFI-4, almost concede this point: "64. It is clear from the clinical records the bullying at Wyong Council gave rise to a recrudescence of the Plaintiff's psychiatric symptoms that were previously not seriously disabling or interfering with his capacity to work in the HR field. So much is clear from the records of Dr Kriek and Gaye Colwell. 65. It was from that time the Plaintiff was placed on Cipramil (an antidepressant) and treated by Ms Colwell in relation to the workplace bullying. This is set out in her report at Exhibit D, p 112. The Plaintiff was also seen by Dr Kriek from time to time. 66. It is likely the Plaintiff's symptoms oscillated but there was a further deterioration in his functioning, and he was unable to procure work in management positions and drifted towards part-time work in a gymnasium, and working as a hospital ward clerk. This is described by Dr Diamond in his report. The Plaintiff ascribed his difficulties as being irritability, persistent sleep problems and motivational issues. 67. All of these symptoms were attributed by each of the psychiatrists by whom he was examined (Dr Jones, Dr Diamond, Dr Bertucen) as being due to his PTSD. Dr Allan inferentially accepts them on his document review." "Recrudescence" is an alternative way of saying "re-occurrence".

Can PSAC's certificate of 29 March 2006 be amended?

The Plaintiff has submitted that the Defendant has the power to amend the original certificate of PSAC to include "PTSD", and, therefore, the Court on this application has the like power. The relevant part of the Plaintiff's written submissions are these: "145. The Defendant submits that once certification has taken place, it cannot amend the certificate so as to include another infirmity. The Plaintiff has submitted that if this be correct, then the obligations as to the substance and detail of what is notified is altogether more onerous for the Defendant. 146. However, if there is a capacity to add an infirmity, the notification of decision of the Defendant or its committee the requirement is, perhaps, less onerous. 147. However, this depends on whether the Defendant can add an infirmity once the decision has been made and notified and the six-month time limit has expired. It is this issue to which the following submissions are addressed. 148. Sections 10B(1) and 10B(2) PRS Act couched in terms of 'must not be granted unless' preconditions are met. In this respect, rather than prescribing what the Defendant can do, it prescribes what it must not do. 149. It only relates to the grant of an annual superannuation allowance. The Plaintiff was granted this allowance in 2000. As such, it is arguable the notification provisions are not required on the application for extension. Accordingly, s 10B of the PRS Act is not directly relevant to this dispute. 150. If it is relevant, s 10B of the PRS Act, does not empower the Defendant or prescribe its function. Rather, it imposes caveats on the exercise by the Defendant of its functions. 151. The [heading] of the section is illuminating as to the purpose of the section in that it is entitled 'Medical examination of disabled member and determination of whether hurt on duty'. Read into ss 10B(1) and (2) of the PRS Act, and given the definition of 'Medical advice' in s 10B(2c) of the PRS Act, it is tolerably clear the provisions require STC to obtain medical advice prior to certifying a member as being incapable. 152. In the context of ss 50, 51 and 57 of the Superannuation Administration Act 1996, s 10B of the PRS Act would not be construed as restricting the Plaintiff from seeking either a further certification nor, if it be required, the amendment or supplementation of a previously issued certificate. 153. There is no legislative provision in the PRS Act restricting the Plaintiff to a single certification nor the issuing of a single 'certificate of incapacity'. Indeed, '[t]he word 'certified' is not used in s 10B(1) or (2) as a term of art. The certification is given no special status: cf Workplace Injury Management and Workers Compensation Act 1998 s 326 (medical assessment certificate conclusive evidence on enumerated matters). It does not lead to the issue of a 'certificate', although if it did, absent statutory provision, that would not imbue it with any special lustre. Even when such conclusive certification provisions exist, they are strictly construed: Maurice Blackburn Cashman v Brown [2011] HCA 22; (2011) 242 CLR 647.' 154. There is no legislative provision in the PRS Act or the Superannuation Administration Act 1996 restricting the Plaintiff to a single application for certification or a single certificate. 155. Sections 12D and 10B(3) of the PRS Act contemplate any number of certifications (in response to applications) being issues by the Commissioner of Police. So a constrained approach to s 10B in the context of an application under s 10(1A) would be inconsistent with the statutory intent and the application of that intent. 156. There is no legislative provision in the PRS Act preventing the Plaintiff from applying to the Defendant for an amendment or supplementation to his 'certificate of incapacity', or to have a further infirmity certified. There is no statutory provision constraining the trustee from considering any subsequent application by the injured officer for certification of another medical condition that was notified to NSWPF and potentially determined as 'hurt on duty'. The trustee has the obligation to assess applications as and when they are made. 157. There is no legislative provision preventing the Defendant from amending, supplementing or changing the Plaintiff's previously issued certificated of incapacity as contemplated by ss 8 and 10B(1) of the PRS Act. The very term 'certificate of incapacity' is not a defined term in the PRS Act and is rather a common parlance referring to a letter issued by STC and contemplated by s 10 of the PRS Act in relation to s 10B(2) of the PRS Act. The provisions of s 10(1) and s 10(1A)(b) and (c) of the PRS Act contemplate an assessment which is quite separate from s 10B of the PRS Act - that is an assessment of the capacity to work outside the NSWPF. While this may be limited to only certified infirmities, by necessary intendment, there must be the capacity to add a further infirmity that is affecting capacity in the open labour market that may not have been relevant in the assessment of its impact on the capacity to perform his or her last day of service. 158. The Defendant refused to entertain the Plaintiff's application for pension increase on account of his PTSD condition on grounds that once a certificate has been issued for the purpose of s 10B(1) of the PRS Act, it has no power to make any further decision. 159. In Miles v SAS Trustee Corporation [[2011] NSWLR Comm 15 at [64]], Kavanagh J relevantly observed: It has already been determined (see SAS Trustee Corporation v Daykin [2002] NSWIRComm 124; (2002) 115 IR 172 ('Daykin'), Saad v Commissioner of Police (1995) 12 NSWCCR 70, Murray v Commissioner of Police (2005) 2 DDCR 31 and Day v Commissioner of Police [2009] NSWCCA 222; (2009) 187 IR 338) that while a s 10B(1) certificate is conclusive at the time of issue, other infirmities identified at a later time, can be added to a certificate. The appellant has offered new medical opinion to support the application to amend the 2003 certificate. The statue provides no time limit for additions to a certificate under s 10B(1) (although a certificate under s 10B(2) does have some time limits) and allows very broad time limits for any application either for certification or variation of the superannuation allowance. It follows STC could not thwart the appellant's statutory right to apply for a variation by refusing to consider the application to amend the s 10B(1) certificate. (emphasis added)".
I do not agree. The clear scheme of the Act is that the infirmity of body or mind must exist at the time of the Plaintiff's separation from NSWP, whether it be by medical discharge, resignation or retirement. That is consistent with interpretation of the Act adopted by the Court of Appeal in Day v SAS Trustee Corporation - see [168] above, reflecting its historical origins. If there be any flaw, it is in the Act itself. For example, if the Plaintiff had not been exposed to psychic traumata but, say, to asbestos in the course of his duty, was medically discharged for his knee condition, but 10 years later was diagnosed with mesothelioma, an extremely debilitating condition, he was not disabled by that condition at the time of his medical discharge. The Act makes no provision for latent diseases, as modern limitation statutes do. The concept was probably unknown in 1906. The Court's duty is to apply statute law, not to amend it.

Notice

A large section of the Plaintiff's written submission on this issue concern the requirement to give notice as required by s10B(2)(a) and s10B(2)(a1): MFI 4 [166] to [179]. There is no report in writing made by the Plaintiff himself. The Plaintiff relies on these oral representations: "The Plaintiff notified his injury on several occasions: (a) When reporting his problems to Mr Raymond; (b) When Mr Raymond reported the matter to Inspector Bennett; (c) When Inspector Bennett reported the matter to Superintendent Galvin; (d) When Superintendent Galvin and Inspector Bennett reported the matter to the police psychologist in 1991; (e) When the Plaintiff consulted the police psychologist in 1991; (f) When the Plaintiff consulted the police psychologist in 1993; (g) When the Plaintiff consulted the police psychologist in 1996." By the word "injury" in the chapeau of that paragraph, I assume the Plaintiff's counsel were referring to the symptoms of PTSD, although the Plaintiff said that he was never advised by a police psychologist that he had that condition. The conversations listed above as (b), (c), and (d) are all unknown. Which of the psychic traumata described in the evidence before me, as I set out at [19] to [34] above were actually reported are unknown. In any event, on my construction of the Act and my findings of fact this issue does not arise.

The "limitation" issue

To avoid this thorny issue, I decided to deal with the substance of the Plaintiff's case, rather than to deal with it on this technical issue. This issue is considered at considerable length in the Plaintiff's written submissions (MFI 4) under these headings, in the paragraphs indicated: Heading Paragraphs Comment Jurisdiction [96] to [100] - Validity of Notice of 29 March 2000 [101] to [118] - Plaintiff not aggrieved by Notice [119] to [120] - Letter dated 18 April 2000 [121] to [125] - No notification of Correct Appeal Rights [126] to [131] - Waiver: Notification [132] to [135] - Obligations to Inquire [136] to [144] - Amending PSAC Certificate [145] to [165] See [183] above Notice of Injury and Symptoms [166] See [185] above Law Prior to Rossetti [167] to [174] See [185] above Plaintiff's Notification of Injury [175] to [179] See [185] above

Prior to the decision of the Court of Appeal in SAS Trustee Corporation v Rossetti [2018] NSWCA 68 it was thought that a member of the Police Superannuation Fund who was dissatisfied with a decision of the Defendant, or its delegate, PSAC, could take his or her grievance to the Defendant's Disputes Committee and, if aggrieved by its decision, could then make an application to the Industrial Relations Commission of New South Wales in Court session, constituted by a single Judge, and, if still aggrieved, could then apply to a Full Bench of that Court. Rossetti had resigned from NSWP on 6 May 1994. On 27 May 2010 he submitted an application to the Defendant under section 10, for a superannuation allowance. He alleged that he was incapable of discharging the duties of his office at the date of his resignation on account of (a) PTSD and (b) an injury to his right ankle. On 26 July 2012 PSAC declined to issue a certificate of incapacity. The Defendant advised Rossetti that he could apply to its Disputes Committee for, what the Court of Appeal described as, "an internal review." That application was not upheld on 7 August 2014, and the Defendant advised of a right of appeal under s 88 of the Superannuation Administration Act 1996 to the Industrial Relations Commission of Court in Court Session ("the Industrial Court"). Rossetti commenced such an appeal on 17 February 2015. The further procedural history is contained in these paragraphs of the joint judgment of the Court of Appeal (McColl, Basten and Payne JJA): "[11] The matter proceeded at what appears to have been a leisurely pace in the Industrial Court, prior to the abolition of that Court on 8 December 2016. The matter, being then an 'unheard proceeding' for the purposes of the transitional provisions, [9] was transferred to the Supreme Court. [12] The matter was heard in the Common Law Division on 20 March 2017, judgment being delivered on 15 June 2017. The STC filed a notice of appeal on 14 September 2017."
After considering the terms of the Act, and of the Superannuation Administration Act 1996, and its predecessor and its decision in SAS Trustee Corporation v Woollard [2014] NSWCA 75; (2014) 86 NSWLR 367, the Court held that the only right of review under the Act was to this Court, as the successor of the Compensation Court of NSW, the successor of the original Workers Compensation Commission of NSW: "Conclusion [38] As noted in Woollard, and not disputed in this case, there was no right of review or appeal prior to the introduction of s 21 in 1979. According to the narrow reading of s 21(1)(a), an evaluative assessment by the STC (as to the capacity of a claimant to discharge the functions of a police officer, and thus satisfy one step towards the equivalent of a workers' compensation payment), would have been unreviewable, whereas a similar evaluative assessment by the Commissioner (as to whether the infirmity was caused whilst on duty) would have been reviewable. That would be a bizarre result and would not further the purpose of the provision derived from its terms, the legislative history and the relevant second reading speeches. The purpose of s 21(1) was to provide a right of review, by the body responsible for determining workers' compensation claims, of decisions made in the exercise of the compensation functions conferred under the Police Regulation Act. [39] There is no reason to suppose that subsequent changes to the Administration Act were intended to alter the reading of s 21 which would have been appropriate at the time of its enactment. The express effect of s 67(5) of the Administration Act is to exclude decisions reviewable under s 21 from being categorised as decisions under s 67. That includes a decision by the STC under s 10B(2). [40] For these reasons, on 29 March 2018, the Court concluded that the Supreme Court, as the successor to the Industrial Court, did not have jurisdiction to determine the proceedings commenced in the Industrial Court. The appeal was therefore allowed and the judgment below set aside. Costs were ordered in favour of the respondent, both in this Court and in the Common Law Division, on the basis that he had been led to commence proceedings in the Industrial Court, and continue them in the Supreme Court, by the letter from the STC asserting that there was a right of appeal to the Industrial Court under s 88 of the Industrial Relations Act. The STC, again quite properly, did not oppose such an order. [41] An application for indemnity costs by the respondent was rejected. There was no suggestion that the STC had acted otherwise than in good faith, though on a mistaken view of the law. To the extent that the issue had been raised by this Court in Woollard, neither the STC nor the solicitors for the respondent appeared to be familiar with the issue. In these circumstances the Court considered it sufficient that the costs awarded against the STC be assessed on the ordinary basis."
Mr Rossetti then commenced proceedings in this Court seeking the relief he had previously sought in the Disputes Committee, the Industrial Court and in the Common Law Division of the Supreme Court. The Defendanty took no point that Rossetti was "out of time" in this Court. However, he withdrew his application after some withering cross-examination by Mr Geoffrey Watson SC.
In Day v SAS Trustee Corporation [2020] NSWDC 381, Day had been a police prosecutor. He resigned from NSWP on 26 September 1998, having last physically worked until 21 August 1998. At the time of his resignation he was suffering from an "acute anxiety and depressive reaction" secondary to his work duties. However, I was not satisfied that that incapacity persisted after the end of 1998. On 4 June 2008, Day applied for a Medical Discharge Benefit/Superannuation allowance under s10B(2) of the Act. PSAC declined to issue a certificate of incapacity on 30 April 2009. I went on to record this: "[3] A formal notice to that effect was sent by registered mail to the plaintiff's then solicitors, Messrs Baker & Edmunds, on 7 April 2009. That letter contained this erroneous advice; 'Your client may dispute this decision under s 67 of the Superannuation Administration Act 1996. If he wishes to dispute the corporations decision, please advise this office in writing, and we will then refer his dispute to the corporation's Disputes Committee, along with any other relevant material that you may want to consider.' On 9 June 2009, Messrs Baker & Edmunds requested that the matter be referred to the Disputes Committee 'for reconsideration'. [4] In order to pursue such a reconsideration, the defendant arranged to obtain written reports from Dr Antony Christie, and Dr Joseph Dunn, as well as qualifying Dr Peter Snowdon, psychiatrist, to examine and report on the plaintiff's condition. After further correspondence between the defendant and Messrs Baker & Edmunds on 27 January 2010 the defendant wrote this to the plaintiff's then solicitors; 'I have to advise that it is hard to see how the dispute could be determined in your client's favour. Should your client still wish to continue this dispute, please let me know within 21 days of this letter, and whether you will provide further medical evidence to support his claim.' [5] The plaintiff's claim was then being handled by Mr Tom Edmunds. Mr Edmunds retired from practice because of a terminal illness, and his death occurred shortly after his retirement. Mr Stuart Gray, a solicitor then practising with Harris Wheeler, took over the plaintiff's claim. There was then desultory correspondence between the defendant and Mr Gray which was, happily for the plaintiff, affected by the decision of the Court of Appeal in SASTC v Rossetti [2018] NSWCA 68. The Court of Appeal determined that the appeal path which the defendant had advised Mr Edmunds back in 2009 was never the appropriate appeal path and, rather than going to the Disputes Committee and then the Industrial Relations Commission in Court Session, the right of appeal was always to this Court. On 14 January 2019, the defendant wrote appropriately to Mr Gray, now a partner of Cardillo Gray, advising the plaintiff of his right to dispute the decision of PSAC, made on 30 April 2009, by making an application to this court. Accordingly, the plaintiff filed a statement of claim on 2 July 2019. [6] The hearing of this case commenced on Monday 6 July 2020. The hearing was completed on Thursday 9 July 2020 and I told the parties I would give judgment last Friday. Unfortunately I was unable to do so because in my overnight reading I ascertained a major factual discrepancy which caused me need to reread a lot of the evidence. Hence I give this judgment today. I am now deciding a matter which ought to have come before me in 2009. Allowing for the normal lag between the filing of a statement of claim and the giving of a hearing date, I ought to have heard this matter in 2010, a decade ago, about the circumstances surrounding the plaintiff's resignation from the NSW Police which occurred almost 22 years ago. Necessarily, the evidence before me is hardly satisfactory. People have deposed to events occurring many years ago going back over up to a quarter of a century. Much evidence of a documentary nature either has been destroyed, or cannot be found, or was not the subject of a subpoena to produce documents. Plaintiff's background [7] The plaintiff was born in April 1961 at Liverpool Hospital. He is currently 59 years old. In his affidavit, which was affirmed on 25 May 2020, he told me that he grew up on a dairy farm with quite a large 'nuclear' family and the involvement of other relatives in the running of the farm. He told me that he helped his grandparents, his parents, and an aunt on the farm from a young age. I understand that this dairy farm was at Minto. Later the farm was sold off, although the two houses which had been built on the farm remained in the ownership of the plaintiff's wider family. Before working on the farm, the plaintiff's father had been an engineer in the Royal Australian Engineers. The plaintiff's father's advice to him was to apply for officer training by becoming a cadet at the Duntroon Military College. The plaintiff attended a local primary school and the Ingleburn High School. He was a good scholar. In 1978 he commenced to attend the Royal Military College at Duntroon as a cadet officer. He left Duntroon, however, after a period of nine to 10 months because, he said in his affidavit that he, 'realised it was not the right career choice,' for him. The plaintiff has given at least one history of undergoing bastardisation when he was a cadet officer. Before going to Duntroon, the plaintiff had expressed an interest in joining the New South Wales Police. After leaving Duntroon, he worked as a forklift operator and despatch clerk whilst waiting on advice from NSW Police as to whether he would be accepted into the Force. His application was successful and in 1980, he commenced at the Redfern Police Academy. That led to his attestation as a probationary constable of police on 30 June 1980. [8] He was then sent to Liverpool Police Station, at which police station he worked, or at one of its substations, namely the Green Valley Police Station. He appears to have worked at Green Valley for a relatively short time. He was then 'headhunted' into joining the Police Prosecution Branch. The plaintiff was interviewed by Dr Jeff Bertucen, a consultant psychiatrist, on 16 August 2016. The plaintiff gave this history to Dr Bertucen, 'in 1982 he stated that he was 'headhunted' into joining the Prosecutor service. He initially declined, but then found himself faced with the prospect of a transfer to Moree in remote outback New South Wales. He feels in retrospect that this was a deliberate move to either coerce him to join the prosecutor's department or punish him for declining. Mr Day stated that he had another meeting with the Police Prosecutor's Department, as a result of which the transfer to Moree 'evaporated instantly'.' That, like many histories, appears to have been a reconstruction based upon a negative view of the NSW Police. I accept that when faced with the prospect of joining the Police Prosecutor's Branch, or being transferred to Moree, one would accept the former rather than the latter, which essentially is the history the plaintiff gave in his affidavit. However, if the Police Force wished to 'punish' someone, they would transfer that person to Moree without giving him a chance to reconsider his attitude. [9] In his affidavit, the plaintiff told me that he began his training as a police prosecutor not in 1982, but in 1981. He told me that that training was carried out in the Sydney metropolitan area, and as I understand it, he worked for some time at Police Headquarters when that building was in College Street, Sydney. In 1984, the plaintiff received a Distinction pass in the Police Prosecutor's Training Certificate Course." Again, the Defendant did not take the point now taken.
The Defendant's written submissions on this issue (MFI 2) are these: "Justiciable Decision 1. By amended Statement of Claim filed in Court on 18 October 2021, the Plaintiff seeks to set aside the defendant's decision of 29 March 2000 (Ex a p.9) and the alleged decisions of 3 December 2019 (Ex A p.53) and 4 December 2019 (Ex A p.57). In effect, he seeks certification of the condition of Post Traumatic Stress Disorder either under s.10B (2) or alternatively, by way of an amendment to the s.10B (1) certificate dated 29 March 2000. 2. In relation s.10B (1), the defendant's letter dated 4 December 2019 advised that the defendant had no power to alter the decision pursuant to s.10B (1) previously made by it on 29 March 2000. It cannot be construed as containing any additional decision to that which was made on 29 March 2000 (see for example Richardson v SAS Trustee Corporation (1999) 18 NSWCCR [423] at [14] to [16]). Accordingly, the Court has no jurisdiction to entertain an amendment to the s.10B (1) certificate for 2 reasons: a) the application is outside the 6 month time limit imposed by s.21 (1) of the Act and b) the Court could not replace the defendant's decision with its decision because the defendant, being functus officio, had no power to make the amendment (see s.21 (5)). 3. The letter dated 3 December 2019 relied upon by the plaintiff as constituting notification of a decision pursuant to s.10B (2) simply referred to the plaintiff not satisfying the statutory criteria. The Plaintiff was merely advised that he did not qualify because he was not 'a former member who had resigned or retired' within the meaning of s.10 (1) (b) of the Act. Such advice also cannot be construed as a 'decision' that would enliven the Court's jurisdiction pursuant to s.21 of the Act. Paragraph 10 (a) of the Defence - s.10B (2) claim 4. In its terms, s.10B (2) only applied to a 'former member of the police force who resigned or retired'. It is common ground that the Plaintiff neither 'resigned' nor 'retired'. He was medically discharged pursuant to s.10B (1) of the Act. Accordingly, s.10B (2) is inapplicable to his circumstance. Paragraph 10 (b) of the Defence - Notification and time limit under s.21 5. On 29 March 2000 the defendant wrote to the plaintiff advising him of is decision pursuant to s.10B (1) of the Act. The letter provided formal particulars of the defendant's decision. There was no statutory obligation to provide anything more than notification of the decision. However, as a matter of procedural fairness it is common practice for an administrative decision maker to advise the person affected by the decision of steps that person can take if aggrieved by that decision. An advice was proffered in this regard. 6. The letter of 29 March 2000 referred to a dispute mechanism that was then regarded as applicable to the defendant's s.10B (1) decision. The Court of Appeal in SAS Trustee Corporation v Rossetti [2018] NSWCA 68 determined that, on a proper construction of the statutory scheme, a different dispute mechanism was to be preferred (i.e. application pursuant to s.21 of the Act). Nevertheless, the plaintiff did not take any steps to dispute the defendant's decision. 7. Underlying the statutory requirement of formal notification of administrative decisions is the principle of procedural fairness. As observed by Gleeson CJ, [F]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]) 8. There was no procedural unfairness in the circumstances of the present matter for 3 reasons. First, the plaintiff conceded that he probably received the letter dated 29 March 2000 (T… 48.47) and did not avail himself of the dispute mechanism referred to therein. Accordingly, it is unlikely that he would have made an application pursuant to s.21 of the Act even if he had been advised that such a course was open. It follows that there was no practical injustice. 9. Secondly, between 8 April 1999 (Ex1 p.5) and 30 March 2001 (Ex1 p.22) the plaintiff was legally represented by Taylor & Scott, a specialist legal firm in this area of the law, who pursued on his behalf his claims under s.12D of the Act; claims that relied upon the s.10B(3) (a) decision of the Commissioner of Police. A reasonable inference to draw from this is that he would have also received some advice in relation the defendant's s.10B (1) decision, assuming he was aggrieved by it. Again, the plaintiff did not make an application pursuant to s.21 nor did he pursue the dispute process suggested by the defendant. 10. Thirdly, had the plaintiff made an application pursuant to s.21 at that stage, it is likely that his application would have been dismissed by the Court (see Evans v SAS Trustee Corporation (unreported Neilson DCJ 10/12/08 at [8] to [12]). 11. Accordingly, there was no procedural unfairness leading to any practical injustice visited upon the plaintiff by the defendant's notification of its decision contained in the letter dated 29 March 2000. 12. Relying on the decision in Schinnerl v Commissioner of Police [1992] NSWCA 224, the plaintiff argues that the defendant's notification of its decision on 29 March 2000 was fundamentally flawed and, therefore, constitutes no notice for the purposes of s.21 of the Act. Schinnerl is probably distinguishable because of its unusual facts which included reliance upon oral notice and a much shorter limitation period. However, leaving that issue to one side, it is clear that the Court of Appeal in Schinnerl was concerned that the provision of notice should be given in a serious and formal way to enable the person affected to be able to understand the details of the decision made and, if aggrieved, take steps to contest it. Obviously, this is a matter of procedural fairness to ensure that practical injustice is avoided. For reasons already expressed procedural fairness was provided in the present case and no practical injustice was visited on the plaintiff. 13. The plaintiff assumes, without proof, that the (now recognised) technical flaw in the defendant's notification of disputation rights somehow denied the plaintiff procedural fairness whereas, in reality, it did not. 14. It follows from the above that the time limit imposed by s.21 of the Act with regard to the defendant's decision of 29 March 2000 has expired and the Court has no jurisdiction to entertain the plaintiff's claim to amend the s.10B (1) certificate. Paragraph 10 (c) of the Defence - functus officio 15. At common law, there is a general rule that a power conferred by statute is exhausted by its first exercise. That principle was described by Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 as an inconvenient one, which could give away to an interpretation of a statute conferring power that is exercisable from time to time. The power exercised by the defendant pursuant to s.10B (1) or 10B (2) is, on a proper construction of those sections, not a power exercisable from time to time. 16. Where the defendant issues a certificate under either s.10B (1) or s.10B (2), a final decision remains to be made by the Commissioner of Police under s.10B (3) (a) on the issue of causation. Where the defendant declines to issue a certificate, there is no further power to be exercised. In the interests of finality of decision making, the defendant has no implied power to reconsider an application such as to make substantive changes as a result of a change of mind, or to correct substantive errors within jurisdiction, or to accommodate a subsequent change in circumstances. 17. Of course, the defendant can make a further decision in circumstances where an earlier decision was infected by jurisdictional error and, therefore, a 'non-decision' (see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597). In Bhardwaj, the High Court's conclusion that the Refugee Review Tribunal (RRT) had jurisdiction to make a second decision in a particular case was not based on a view that the RRT was not functus officio. The Court cited with approval from a Canadian Supreme Court decision where it was said that as a general rule when a tribunal has reached a final decision in respect of a matter before it, in accordance with its empowering Act, that decision cannot be revisited because the tribunal has changed its mind, or made an error within jurisdiction, or because there had been a change in circumstances[:(2002) 209 CLR 597 at 603 [7] per Gleeson CJ, 615 [52] per Gaudron and Gummow JJ]. 18. In CR1026 v Republic of Nauru (2018) ALR 216 at 232 [60] the High Court explained the significance of the approval in Bhardwaj of the Canadian decision. That is, as a general rule the principle of functus officio applies on the policy ground that favours the finality of proceedings and did not allow a tribunal to seek to make substantive changes to a decision as a result of a change of mind, substantive error within jurisdiction or subsequent change in circumstances. However, CR1026 also affirmed that the principle of functus officio did not prevent a tribunal from issuing a corrigendum correcting a mere textual error akin to a 'slip rule' power. 19. There is no suggestion in the present matter that the defendant's decision of 29 March 2000 is infected by jurisdictional error. The amendment to the certificate sought by the plaintiff is one of substance and not a proposed correction of a textual error. 20. Although s.48 of the Interpretation Act, 1987 ('the 1987 Act') provides for a statutory function to be exercised from time to time that power is subject to a contrary intention appearing in the Act conferring that function ( s.5 (2) of the 1987 Act). As pointed out by Hatzistergos J in Boland v SAS Trustee Corporation [2021] NSWDC 545 at [55], there is nothing in the 1906 Act that specifically displaces the 1987 Act. However, a specific ouster provision is not necessary. A 'contrary intention' can be discerned from the statutory scheme (e.g. the High Court's approach involving equivalent Commonwealth provisions in Minister for Immigration and Border Protection v Makasa (2021) 386 ALR 200 at [50]). 21.It is tolerably clear that the statutory scheme through its focus on prescribing a specific time for incapability of office and a strict time limit for appeal under s.21 does evince a contrary intention to s.48 of the 1987 Act in relation to the function exercised by the defendant under s.10B (2) and, in the circumstances of this case, s. 10B(1) of the Act. 22. Unlike the benefit conferred by s.10 (1A) (b), where the defendant's statutory powers, by virtue of s.10 (1D), are conferred to be exercised from time to time, the text and context of s.10B (1) focus the decision maker on the question of 'incapability' at a specific point in time, i.e. at or before medical discharge (or resignation/retirement in the case of s.10B (2). The 'specified infirmity to be certified is the cause of the incapability. It is consistent with the text, context and statutory scheme (given the latter decision to be made pursuant to s.10B (3) (a)) that the decision made on this issue, once made, is final and cannot be revisited. 23. Given that the decision made by the defendant pursuant to either s.10B (1) or s.10B (2) is then subject to a full merits review by the District Court, it would make a mockery of that scheme to construe that function as being exercisable from time to time. To revisit such decisions would represent an 'unacceptable construction of the statute' as found in Richardson at [16], as it would undermine the statutory purpose of imposing the strict time limit to be found in s. 21 of the Act. 24. It follows that the defendant is functus officio with regard to its decision of 29 March 2000." I find these arguments convincing and they accord with my understanding of the statutory scheme of the Act, to which I have already referred.
Since I reserved my decision in the current matter, there have been relevant decisions: that of Robison DCJ in Pascoe v SAS Trustee Corporation (unreported 15 March 2022) and an unsuccessful appeal from that decision: Pascoe v SAS Trustee Corporation [2022] NSWCA 244. I am aware that on 23 December 2022, Mr Pascoe filed an Application for leave for special leave to appeal to the High Court of Australia, but that application was refused by Gageler and Gleeson JJ on 20 April 2023: [2023] HCASL 69. Their Honours said: "The Court of Appeal's decision was plainly correct." That dictum has no precedential value.
The principal judgment of the Court of Appeal was delivered by Basten AJA, with whom Ward P agreed. Kirk JA agreed with the orders proposed by Basten AJA, but gave his own reasons for his decision. Basten AJA provided this procedural history: "[22] On 31 October 1988 the appellant, Constable Glenn Pascoe, sought a medical discharge from the Police Force on the basis of injuries sustained whilst undertaking police duties. A scheme of compensation for officers who were discharged on medical grounds was provided under Pt 4 of the Police Regulation (Superannuation) Act 1906 (NSW) (Police Regulation Act). Section 10 provided for payment of an annual superannuation allowance, based upon a percentage of the officer's salary, if he or she was a 'disabled member of the police force'. That term was defined in s 10(1) to mean 'a member of the police force who is discharged after being certified, pursuant to section 10B(1), to be incapable, from a specified infirmity of body or mind, of discharging the duties of his office'. [23] Section 10B(1) provided for certification, as required by s 10(1), by the State Authorities Superannuation Board (the Board) as constituted under the Superannuation Administration Act 1987 (NSW). The Board was thus responsible for determining whether the officer was incapable of performing his or her duties. However, to qualify for a superannuation allowance, the officer also had to establish that the infirmity specified by the certificate was caused by the member being 'hurt on duty'. It was the function of the Commissioner of Police to determine that issue, having regard to the infirmity specified by the Board: s 10B(3)(a). [24] Initially, Mr Pascoe fell at the first hurdle. Section 2H in Pt 2A of the Police Regulation Act established a Police Superannuation Advisory Committee (PSAC) to which the Board could delegate any of its functions under that Act: s 2J. The function of certifying that a member was incapable from a specified infirmity of discharging the duties of his or her office was, at the relevant time, delegated to the PSAC. Accordingly, Mr Pascoe's application was provided to the PSAC which, by letter dated 31 October 1989, advised him that it was unable to certify his incapacity in the terms of s 10. The letter notifying him of that decision also advised that he was entitled to have the issue determined by the Board pursuant to s 26 of the Superannuation Administration Act. The letter stated that, should he wish to proceed under s 26, he should within 28 days of the date of the letter advise the PSAC which would refer his application and 'notice of appeal' to the Board. Mr Pascoe took that step. [25] On 27 August 1990 the Board redetermined the claim. On 3 September 1990, an officer of the Board wrote to Mr Pascoe advising that the Board had reversed the decision of the PSAC and was issuing a certificate stating that he was 'incapable, due to the specified infirmity of 'Generalised Anxiety Disorder' of discharging the duties of his office'. [26] Having obtained a favourable ruling from the Board, Mr Pascoe applied to the Commissioner of Police for a ruling that his infirmity was caused by him being hurt on duty. He then failed at this hurdle, the Commissioner responding on 11 October 1990 stating that he was not satisfied that the condition was sustained as a result of him being hurt on duty. [27] Mr Pascoe was dissatisfied with the decision of the Commissioner of Police and exercised his right 'within a period of 90 days after the person is notified of that decision, [to] apply to a workers compensation commissioner under the Workers Compensation Act 1987 for a determination in relation to that decision': Police Regulation Act, s 21(1). [28] Before the application to a workers compensation commissioner was determined, the function of hearing such appeals was transferred to the Compensation Court, established under the Compensation Court Act 1984 (NSW), although the particular functions under the Police Regulation Act were not transferred until 1992. The matter was disposed of by the Compensation Court on 25 June 1993, by affirming the decision of the Commissioner of Police. [29] In the meantime, Mr Pascoe had commenced a challenge to the finding of the Board, on the basis that the specified infirmity was unduly restricted. Evidence had been placed before the Board which suggested a more serious psychiatric condition, namely post-traumatic stress disorder, and various orthopaedic injuries. The letter from the Board of 3 September 1990 had advised Mr Pascoe that he had a right of appeal from its determination under s 27 of the Superannuation Administration Act, such appeal being required to be made to the Industrial Commission, within six months after the date of the determination of the Board, 'or within such further period as the Industrial Commission may allow'. That function of the Industrial Commission was performed by the Industrial Court. [30] In fact, Mr Pascoe filed a notice of appeal with the Industrial Commission of New South Wales on 20 February 1991, comfortably within the six-month limitation period. That application was discontinued on 22 June 1993, that is three days before the determination of the Compensation Court. [31] In the ordinary course of events, that would have been an end to Mr Pascoe's claim for a superannuation allowance under the Police Regulation Act. However, some 30 years after the initial decisions were made, in 2020, he filed a summons in the District Court seeking review of the decision of the Board, pursuant to s 21 of the Police Regulation Act. The respondent submitted that the claim was indeed years out of time. Mr Pascoe's response was that time had not commenced to run. [32] The summons in the District Court was heard in March 2022, with judgment being delivered at the completion of the hearing on 15 March 2022. The judge, Robison DCJ, dismissed the application, primarily on the basis that he had no jurisdiction to consider it, but, in the alternative, if he were wrong in relation to lack of jurisdiction, on the ground that the Board's decision that Mr Pascoe's incapacity was due to a 'generalised anxiety disorder' should be confirmed. [33] The appeal to this Court challenged both the finding as to lack of jurisdiction and the contingent findings as to the merits of the application. The question of jurisdiction must be addressed first and, only if jurisdiction be established, will it be necessary to deal with the contingent findings made by the primary judge as to the merits of the claim."
Since Mr J M Morris SC appeared for the present Plaintiff and for Mr Pascoe in the Court of Appeal, and Messrs Cardillo Gray act for both the present Plaintiff and for Mr Pascoe, I do not need to rehearse the reasons of the Court of Appeal in Pascoe at any length. The Court held that section 21(1) of the Act required the notification of the decision of PSAC/the Respondent, not the appeal rights with respect to that decision. It should not be inferred from the legislation that the purpose of the notification is frustrated where actual notification is accompanied by factually incorrect advice as to the availability of review. The letter of 3 September 1990 provided sufficient notice of the decision that had been made: per Kirk JA at [10]; per Basten AJA at [62], [79]-[80]. The Court also held that the Appellant could not rely on the decision in Rossetti [2018] NSWCA 68 that overturned the previous understanding of the law on which he had relied. The former understanding as to the right of review did not preclude the Appellant from undertaking an appeal to the Industrial Court from a decision of PSAC/the Respondent. The Appellant was unable to show that he would have been prejudiced if his appeal were dealt with by the Industrial Court rather than the Compensation Court. The Court also held that it would be contrary to the interests of justice to allow the Appellant to reagitate medical question some 30 years after the expiring of the time limitations: per Basten AJA at [63], [70], [72]-[74]. Likewise per Kirk JA at [16]-[19].
Finally, I ought address [138] of the Plaintiff's written submissions, MFI 4. It is this: "The Defendant sought and received the employment file and the medical file [relating to the Plaintiff held and kept by NSWP] but not the [Police Psychology Unit] file. It is notorious that police officers are likely to be exposed to trauma and they be referred to the police psychologist. The Defendant failed to seek out this material or insist on its production" [My emphasis]. It is entirely understandable that the Defendant would seek access to the Plaintiff's employment file: it would advise his date of birth, date of attestation, postings, duties and promotions: a skeleton of his employment history. When a member was to be discharged for a medical condition, it is understandable that the Defendant would be assisted by having access to his medical file to show dates of injury, periods of incapacity accepted as HOD or treated only as sick leave. The Plaintiff was to be discharged because of the condition or his left knee. He knew that. He signed the form concerning his application for discharge on that ground. He could have added to it other conditions or another condition but he did not. It is not notorious that every member of NSWP has a file kept by the Police Psychology Unit and that it shows evidence of exposure to psychic traumata. If one have access to such a file, one will often find reference to personal matters unrelated to police work. Here one can find in the Psychology Unit file more references to domestic problems than to work traumata. Unless a member was to be medically discharged for an infirmity of mind, i.e. a psychiatric or psychological grounds, it would be a gross invasion of privacy, of which many a member might complain, to seek access to the Police Psychology Unit file. Such access, unauthorised by the member, could lead to industrial disputation. I am unpersuaded by that submission.

Appropriate relief

Mr Ower, for the Defendant asked me to dismiss matter no. 171/2020. However, such relief would not be consistent with s21(4) of the Act. It appears to me that the appropriate relief is to confirm the decision of the Defendant made on 4 December 2019. The Plaintiff appears, to me, to have acceded to the correctness of the Defendant's decision of 3 December 2019.

PLAINTIFF'S FIRST APPLICATION

On 21 February 2019, PSAC, acting as delegate of the Defendant, determined to increase the Plaintiff's basic pension of 72.25% to 77.11% of the attributed salary of his office, with effect from 27 March 2017, the date of the receipt by the Defendant of the completed application made by the Plaintiff. That represents a finding of 36% incapacity for work outside NSWP. The matter must be determined in accordance with Lembcke v SAS Trustee Corporation [2003] NSWCA 136; (2003) 56 NSWLR 736; (2003) 25 NSWCCR 464. I shall make this inquiry looking at the data available prior to 21 February 2019. In my view, it would be inappropriate to take into account circumstances that occurred after PSAC made its decision: Lenihan v SAS Trustee Corporation [2020] NSWDC 815; (2020) 34 DCLR (NSW) 259.

What would the Plaintiff be earning if uninjured?

The first question which arises is what would the Plaintiff have been earning outside NSWP if he had not suffered his left knee injury? I can only take into account on this issue the certified infirmity not, for example, the supervening PTSD: Miles v SAS Trustee Corporation [2016] NSWDC 56; (2016) 22 DCLR (NSW) 223; SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 92 ALJR 1064. One evidentiary guide to this issue is what the Plaintiff would have been earning in the NSWP but for that injury. From what I set out in [150] above, I know the Plaintiff's annual salary of his office in each of the financial years ending 30 June 2017, 2018 and 2019. Reduced to weekly amounts that gives me this data (rounding to whole dollar): Financial Year Annual Salary Weekly Salary 2017 $86,770 $1,669 2018 $88,402 $1,700 2019 $96,479 $1,855 In numerous judgments over a number of years I have pointed out that police officers who have any lengthy period of service can earn outside the police force a greater salary The reasons for this include: 1. the Crown is a reliable payer of salaries, it is unlikely to fail financially and the work of a police officer is essential to the administration of the State, in short, a more reliable source of income than most others; 2. the personal integrity and self discipline of police officers who have a considerable period of service are highly regarded by employers of the general workforce; 3. there are some perquisites of office available to police officers e.g. the provision of uniforms to general duties officers and, more importantly in recent times, a shift structure which allows for periods of longer than two days between periods of shifts, which enables some officers to take secondary employment and others to spend longer times with their families than workers in the general workforce.
One of the jobs discussed by Prof. James Bright in his Job March Report of 30 October 2017 is that if a security consultant whose market pay rate for full time work was $2,307.00 p.w. He summarised this job in this way: "A Security Consultant advises clients on security requirements, and recommends and designs security specifications. A Security Consultant is included in the job category of Security Officers and Guards. For this occupation some of the tasks performed may include: carries out threat assessments on properties or companies; audits existing security systems; makes recommendations to rectify and improve security; conducts surveillance; designs specifications to meet security requirements; monitors security installations to ensure compliance; may carry out electronic debugging or information security operations; may carry out internal audits or other security functions; may evaluate security system tenders."
The Furzer Crestani Forensic Tables, commonly used in assessing damages in personal injury cases, provide statistics drawn from the Australian Bureau of Statistics. They show these average total earnings of NSW male adults working full time for the periods ending: 2017 May $1,733.80 November $1,768.20 2018 May $1,790.40 November $1,807.80 2019 May $1,861.30 November $1,876.70 They are all higher than the figures I set out in [198] above.
Doing the best that I can, and based on the data above and my knowledge of the wages and salaries paid by NSW employers, I accept that at the end of 2017, and beginning of 2018 the Plaintiff could have earned, uninjured, in the general workforce $2,300 p.w.

What could the Plaintiff earn in his injured state?

Again, I can only take into account the incapacity caused by the certified infirmity: Dr Robin Mitchell, Occupational Physician, in his report of 23 August 2017 expressed this view of the Plaintiff's then capacity for work: "Mr Wilson has, in my opinion, a current capacity for suitable work that would avoid any aggravation of the reported symptoms and, providing the following precautions were available, he should be able to manage such work for 40 hours each week: Prolonged walking, particularly over uneven sloping ground services should be avoided, as should running, frequent step climbing, kneeling and crouching actions. Static standing should be avoided by ensuring regular movement." Dr Mitchell expresses a similar view in his report of 23 October 2018, but in that report Dr Mitchell took into account the Plaintiff's "non-HOD low back" condition.
The Defendant has also qualified Associate Professor Paul Miniter, an orthopaedic surgeon. The Associate Professor's opinion is not succinctly expressed. His report of 28 October 2020, following upon an examination on 21 September 2020, contains these opinions: "There is a definite interference by Mr Wilson's medical condition with his activities of daily living. For instance, he uses a cart to play golf and finds it difficult to walk any significant distances in keeping with significant osteoarthritic change. …….. His capacity for work is not affected, as far as I could determine, by this condition, noting that he is currently working as a ward clerk. Working as a ward clerk, there should be no restrictions placed upon his ability to work as caused by his left knee. ……... The prognosis is poor. He will continued to deteriorate and eventually will need total knee replacement." The Associate Professor's comment about the Plaintiff's capacity to work is clearly related to his current work rather than to his original work as general duty sergeant of police or work in the general workforce, or open labour market.
The Plaintiff advanced no evidence of a surgical nature on the present issue. I accept the restrictions placed upon the Plaintiff by Dr Mitchell that I have quoted above. The Plaintiff believes now that he could not work full time as a ward clerk but there is no medical evidence to that effect. His actions as a ward clerk permit him to sit, to stand when he wishes, to walk corridors of the hospital, and hospitals have lifts to take trolley-bound patients between floors and, for example, staff to push trolleys containing food and hospital supplies to various parts of the hospital. There is, in my view, no surgical reason why the Plaintiff could not now be working full time as a ward clerk.
How ought I value the Plaintiff's ability to earn? Firstly, I do not accept that the Plaintiff has ever been physically fit to perform the job of a security consultant, identified by Prof. James Bright - see [199] above. That job requires some physical agility which is impaired by the condition of the Plaintiff's left knee. For example inspecting properties including factories, warehouses are other business premises to check for security threats or weaknesses might involve climbing flights of stairs (fire exits), climbing ladders to inspect roof cavities or cavities between the ceiling of one floor of a building and the floor of the level above it and perhaps moving about in such spaces, involving crawling through air conditioning ducts. External security features e.g. fencing and the like might involve walking over rough and/or uneven ground or climbing eminences or descending lower levels e.g. to see if access could be gained through a culvert or sewer. Debugging premises could also include such activities, activities which were akin to some of the Plaintiff's activities ("bugging") in his early police career.
Secondly, the employment that the Plaintiff found at Life Without Barriers (see [135] above) is work which he could, in my assessment do, were it still available to him. A salary of $110,000 per annum plus 9% superannuation represents a weekly gross income of $2305.77. That was employment between 4 July 2013 and 14 March 2014. If that work were available to the Plaintiff in 2017/2018 one would expect the Plaintiff to be able to earn much more than $2,300 p.w. However, there is no evidence that such work has been available since 14 March 2014, up until 2020. Recent disquiet about payments being made under NDIS might cause such work to become available but there is no evidence of its being available at the relevant time. The Plaintiff's disclosed earnings in self-employment are not, in my view, a true reflection of his ability to earn. Professor Bright's Jobmate Report of 30 October 2017 provides me with this data: Personal Trainer - $1,113 pw gross Fitness Centre Manager - $1,485 pw gross Weight Loss Consultant - $756 pw gross Training and Development Professional - $1557 pw gross The average of those wages is $1,228 pw gross.
I do know that the Plaintiff has been working as a ward clerk since about mid April 2017 (see [146]-[149] above). In the financial year under 30 June 2018 his gross wages were $20,616 or $396.46 per week on average. However, that was only part-time work, some 20 hrs per week. If he were working full-time each week I believe and accept that he could have earned about $800 per week gross. However, the work the Plaintiff did in self-employment extended into the financial year ending 30 June 2019. In the financial year ending 30 June 2018, the Plaintiff's Gross Trading Income was $21,108 from that source. Doing the best that I can, I accept that at the end of 2017 and beginning of 2018 the Plaintiff was able to earn in some suitable employment $1000 pw.
In Lembcke (see [197] above). Santow JA, with whom RP Meagher and Ipp JJA agreed, pointed out at [48]: "In determining incapacity, one may draw upon well-established principle that a worker's actual earnings are likely to be the measure of incapacity for work outside the police force, unless it is established that the workers actual earnings are not a proper test: see Pira Pty Ltd v Tucker (1996) 14 NSWCCR 26 at 31-32 applying the reasoning in Atkin v Goodyear Tyre & Rubber Co (Australia) Ltd (1945) 46 SR (NSW) 20." Whilst I do not accept in this case that the Plaintiff's actual earnings as a ward clerk are determinative of the issue, they provide some guidance in making the proper finding.
If my mathematics be correct, (2300-1000) ÷ 2300 indicates that the Plaintiff's percentage diminution of capacity is 56.52% which entitles him (with rounding) to 6.92% of the 12.25 available under s10(1A)(b) of the Act such that his superannuation allowance ought to have been increased to (72.75% + 6.92%) 79.67% rather than the 77.11% determined by the Defendant.

Backdating

In his application to the Defendant for an increase in his hurt on duty pension, the Plaintiff answered Q28, "Are you seeking to have the pension increase commence from a date that is earlier than the date of application?" by providing the answer "Yes" and the date 6 April 2000, but gave no reason for seeking that earlier date. The copy of the application that is in evidence does not bear a date but it was received by the Defendant on 27 March 2017. The Defendant commenced the pension increase from 27 March 2017 and advised the Plaintiff of that decision in its letter of 22 February 2019. The Statement of Claim in matter no. RJ258 of 2019 does not seek that the increase sought from the Court be backdated to some earlier time. The Plaintiff's written submissions on this application, MFI 3, do not make any claim for backdating beyond 27 March 2017 nor any submission thereon.

Matter No RJ 258 of 2019

I set aside the decision of the Defendant made on 21 February 2019 by PSAC under delegation by the Defendant. I replace that decision with a determination that the Plaintiff's pension be increased to 79.67% of attributed salary of office at the date of medical discharge. The determination takes effect on 27 March 2017.
I order the Defendant to pay the Plaintiff's costs of this application. For the purposes of costs assessment, I decide that: 1. if this were the only application before the Court the hearing would only have lasted two days; and 2. the retention of Senior Counsel was not justified.

Matter No RJ 171 of 2020

I confirm the decision of the Defendant made on 4 December 2019. Each party shall pay his or its own costs of this application.

Associate's note The hearing of this matter was conducted by AVL during a COVID-19 lockdown period. If two copies of each exhibit were provided then, unfortunately, one of each of those copies has been lost or misplaced. His Honour used the only copies available as his working copies. Necessarily, his Honour discarded duplicate documents or irrelevant documents and rearranged documents: e.g. all medical records have been arranged in chronological order in one book (book 2) and most of the non-medical documentary evidence was placed in another book (book 1). Book 3 contains the Wyong Family Practice Notes and Exhibit 6, the records of Ms Gaye Colwell, Psychologist, but rearranged in chronological order. The index to Exhibit 6 is still available. Exhibit E (economic records of the Plaintiff) is intact in a lever-arch binder. The records available show the Exhibits and MFI's to be these, and an appropriate comment is recorded: Exhibit Description Comment A Plaintiff's Non-Medical Bundle Index on File marked "A" B Plaintiff's Medical Bundle Index on File marked "B" C Plaintiff's Supplemented Non-Medical Bundle Index on File marked "C" D Plaintiff's Supplemented Medical Bundle Index on File marked "D" E Economic Evidence Intact marked "E" F Letter NSWP to Plaintiff 9 June 2021 Intact marked "F" G Records of Gaye Colwell Psychologist Intact but rearranged with original index marked "G"

Exhibit Description Comment 1 Defendant's Non-Medical Evidence Index on file marked 1 2 Defendant's Medical Evidence Index on file marked 2 3 Plaintiff's Service Summary Intact - marked 3 4 Reports of Dr M. Allan 7 October 2021 and 18 October 2021 Intact in Book 2, marked 4

MFI Description Comment 1 Plaintiff's Chronology Intact - marked 1 2 Defendant's Written Submissions Intact - marked 2 3 Plaintiff's Written Submissions (Pension Increase) Intact - marked 3 4 Plaintiff's Written Submissions (PTSD) Intact - marked 4 5 Plaintiff's Supplemental Submissions Intact - marked 5

Book 3 contains, in addition to Exhibit G, a copy of the records of the Wyong Family Practice, which are item 9 of Exhibit 2. Should the matter go further it may be necessary for the parties to resubmit some of the exhibits which are identified by their Indices only. Books 1, 2 and 3 will be kept in Chambers for 6 weeks after delivery of judgment but will be discarded if the Court is not served with a Notice of Appeal in that six-week period.

Conrad Nicholls 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: 29 June 2023

Freedom of Information Act 1989(NSW)

Superannuation Administrative Act 1996(NSW)

Police Regulation Act 1899(NSW)

Superannuation Administration Act 1987(NSW)

Compensation Court Act 1984(NSW)

(2003) 25 NSWCCR 464

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