Woollard v SAS Trustee Corporation

The plaintiff's background

1. The plaintiff is a scion of the British Empire. He was born in 1961 in the country currently known as Malaysia. His late father was an Englishman. His father married a local lady who is ethnically Chinese. The plaintiff was the middle of five children born to his parents. He has two brothers and two sisters. In his early days, he was fluent both in a Chinese language and in Malaysian. When the plaintiff was a lad, his family left the rubber plantation where his father was the manager and went back to the United Kingdom. The plaintiff and probably all of the members of his family found there a rather severe, cold climate. The family then migrated to Australia in 1968 and settled in Sydney. The plaintiff lived initially in the northern suburbs of Sydney and then in the outer western suburbs. He attended Epping Public School and then Penrith High School where he obtained the Higher School Certificate. In 1984 when he was 23, he joined the NSW Police. He was attested as a probationary constable of police on 7 December 1984 and became a contributor to the Police Superannuation Fund established under the Act.
2. On the day after his attestation as a probationary constable, he was appointed to perform general duties at Parramatta. He went on to perform general duties at Granville. On 10 July 1988, he was attached to the State Intelligence Group, initially in the Gaming Squad. On 28 October 1990, he moved within the State Intelligence Group to the Surveillance Section. In early 1996, there was an investigation into the activities of the Surveillance Section of the State Intelligence Group by the then Royal Commission into the NSW Police being conducted by Wood J. On 6 March 1996, the plaintiff was required to give evidence to the Royal Commission. Either immediately prior to that time or immediately after that time, the plaintiff and all other members of the Surveillance Section of the State Intelligence Group were given no work to do because there was some form of suspension of the activities of the Surveillance Section.

The plaintiff ceases duty

1. On 25 April 1996, the plaintiff consulted Dr Winfried Sedhoff at the Peninsula Medical Centre on Old Barrenjoey Road, Avalon. The plaintiff was then living in that suburb. The notes made on 25 April 1996 at the medical centre are quite unintelligible. However, it was thought that the plaintiff had some form of disease. Blood tests were ordered. The plaintiff returned to the Peninsula Medical Centre on 23 May 1996 and, again, saw Dr Sedhoff. In a report dated 20 November 1996, part of exhibit DDD, Dr Sedhoff said this: "Senior Constable Woollard presented to this practice on 23/05/96 and was seen by myself. Over this and subsequent visits, a history was obtained of four years of debilitating, often severe, lethargy that was affecting concentration and the abilities of Senior Constable Woollard to perform his duties as a police officer. He gave a further history of having had multiple tick bites at Avalon, Clareville, Taree and at several places he claims he was visiting up and down the east coast as part of his duties as a drug enforcement officer over that time. There is no history of any precipitating viral illness or any prior illness or exposure that would account for his symptoms. Other symptoms mentioned on further questioning included arthralgia of several joints (without swelling), easy fatigability, poor concentration, paraesthesia of the soles of the feet with intermittent pains. There were also occasional chest pains, muscular pains and paraesthesia of his left arm without a history of trauma." The report then sets out the doctor's findings on examination on 23 May 1996 and continues thus: "In view of his history, Lyme Disease Serology and numerous other biochemical and haematological tests were performed. Lyme Disease serology tested at Westmead Hospital, collected on 25/04/96 was subsequently reported as negative. Lyme serology collected on 23/05/96 and sent to Newcastle showed a 2+OspA to Borrelia garinii but no other reaction." In the next paragraph of his report, Dr Sedhoff referred to other blood test results but pointed out that three of the results were consistent with a low grade, inflammatory process. Based on the results thus far obtained, the plaintiff was provided with a provisional diagnosis of Lyme Disease. That diagnosis was made on 28 June 1996. On that day, the plaintiff went onto sick report and was never to return to work as a senior constable of police. The plaintiff's initial treatment was the provision of antibiotics.
2. The plaintiff was referred by Dr Sedhoff to Dr Bernie Hudson at the Royal North Shore Hospital. Dr Hudson is an infectious diseases physician and microbiologist. The plaintiff first saw Dr Hudson on 5 September 1996 and, whist the plaintiff remained under Dr Hudson's care, Dr Hudson certified him unfit to perform any form of work. Dr Hudson's first report of 5 September 1996 is addressed to Dr Sedhoff. After setting out some of the plaintiff's background, Dr Hudson referred to the blood tests that had been performed thus far and then pointed this out: "He has lived at his current address [his mother's home at South Penrith] for three days. Prior to that, he lived at 33 Cannes Drive, Avalon for three years, prior to that in Mona Vale for two years, and episodically at Clareville where his in laws live. He was born in Malaysia at Seremban and came to Australia at the age of seven. He lived mostly in Epping and Penrith." The list of places where the plaintiff may have lived and worked is important and one, therefore, can see that I have recounted the plaintiff's background not out of whimsy.
3. Lyme Disease is borne in a spirochaete which is carried by a tick. A spirochaete is a spiral shaped bacterium. There appear to be a number of different spirochaetes. I have already mentioned the spirochaete identified by the blood testing conducted at Newcastle of blood taken from the plaintiff on 23 May 1996 as borrelia garinii. The plaintiff himself believed, no doubt because of what he was told by one medical practitioner or another, that the relevant bacterium was borrelia burgdorferi. However, that is not mentioned by any of the medical practitioners who have provided reports. I do not know whether all spirochaetes carry Lyme Disease or whether it is limited to borrelia burgdorferi or whether it can also be caused by borrelia garinii. However, a report from an expert in infectious diseases, Dr Don Packham, refers generally to borreliosis, and it may be that all or some forms of the genus borrelia can carry Lyme Disease. The important point to note is that Lyme disease can be transmitted by a tick bite which transmits the borrelia bacterium in question into the victim's bloodstream. Accordingly, it is important to note where the plaintiff may have been exposed to tick bites.
4. From what I have just said, one can see that if the plaintiff contracted Lyme Disease, he had to have been infected with the relevant bacterium, the relevant spirochaete or one of the relevant spirochaetes carried by a tick which bit him. The question then becomes what is or are the relevant spirochaetes, whether the relevant spirochaete or spirochaetes are carried by all forms of tick or only certain types of tick and as to where ticks carrying the relevant spirochaete or spirochaetes may be found.

Claim for HOD benefits

1. Shortly after going onto sick report, the plaintiff lodged a form P124, a claim for hurt on duty benefits. The claim was dated by the plaintiff on 2 August 1996 and was endorsed by the acting commander of the Dee Why patrol on 8 August 1996. That provided a date of injury of 15 October 1990. It was alleged that the plaintiff was bitten by a tick infected with Lyme Disease. It was claimed by the plaintiff that that was the reason for his being off work since 28 June 1996. The plaintiff provided this narrative: "On 15 October 1990, I was attached to the surveillance branch. Part of my duties whilst attached to this unit was physical surveillance in country regions. My present condition is caused from a tick bite which was infected by borrelia burgdorferi. It was not uncommon during my surveillance duties that I enter areas where I have been bitten by insects and ticks, however at the time these bites were of a minor incident and did not warrant reporting or medical attention. It now appears that sometime later as my condition has gotten worse, that a blood test has revealed my ailment, unfortunately I am not able to be specific as to the exact time or dates of my injury being received." There is no explanation given for the date 15 October 1990 in that claim form.
2. Subsequently, the plaintiff was supported in his allegations by a workmate, Senior Constable WJ Avery. On 6 July 1997, Senior Constable Avery wrote this report: "On 8 March 1994, Senior Constable Woollard and I were rostered to perform duty with the Drug Enforcement Agency, Plantation Unit, at a location in the Taree area. On that day we commenced duty at 4.30am and were driven by D.E.A. members to a location about one hour north west of Taree. The vehicle was parked and with members of the D.E.A. we walked into a location in the bush. After sometime we located and moved a number of plants and returned to the vehicle and then to Taree. After completing our duties we returned to the room that Woollard and I shared. Before Senior Constable Woollard had a shower he showed me a number of red marks on his back. I had a close look at the marks, they were about 15 to 20 bites, they were about 1 cm across, red in colour and raised, similar to a mosquito bite only larger. I took off my shirt and I had bites as well. The bites were very itchy but did not cause any major discomfort at the time. Comment. I recall that incident well and recall talking to members of the D.E.A. Plantation Unit on the afternoon about the bites Senior Constable Woollard and I received." That document is exhibit S. Senior Constable Avery wrote a similar report bearing the date 8 August 1997 which became exhibit U. Exhibit U is a little fuller than exhibit S but, in essence, contains the same matter. Taree, of course, is on the Manning River in the Manning Valley.
3. I return to the histories recorded and comments made by Dr Hudson. When Dr Hudson first saw the plaintiff, he thought the plaintiff possibly had Lyme Disease and that it "would certainly fit with his symptoms." He recommended further investigations. They were essentially negative. When he saw the plaintiff on 10 October 1996, Dr Hudson said that despite the negative serology, it was reasonable to provide the plaintiff with a provisional diagnosis of Lyme Disease. Dr Hudson saw the plaintiff again on 10 October 1996 and wrote a short report of 23 October 1996 addressing it to the NSW Police. The report says this: "I reviewed this man recently. He has positive blood tests for Lyme Disease. His illness is a multi-system disorder that is compatible with Lyme Disease. He has difficulty with his short term memory and his ability to think clearly and concentrate are impaired. I do not think he is fit to give evidence in court. A full report can be made available if necessary, but a fee is generally charged for this." It appears to me that when the doctor was referring to the positive blood test, he was referring to the result of the blood test performed at Newcastle following blood being taken from the plaintiff on 23 May 1996. There is no suggestion that any subsequent blood test has been positive for Lyme Disease. Dr Hudson reviewed the plaintiff on 12 December 1996, 6 February 1997 and 8 May 1997. On 8 May 1997, Dr Hudson noted that the plaintiff's symptoms were much the same as they had ever been despite the massive treatment of the plaintiff by injections of penicillin and oral antibiotics.
4. On 20 May 1997, Dr Hudson wrote a report to the NSW Police. In the first substantive paragraph of that report, Dr Hudson referred to the differential diagnosis of chronic fatigue syndrome. In the second substantive paragraph, the doctor said this: "He could have been diagnosed as having CFS [chronic fatigue syndrome], but untreated Lyme is one of the diagnoses that must be excluded in order to diagnose CFS. Accordingly, he was treated for possible Lyme Disease when no alternative diagnosis for his symptoms were found. The only slightly abnormal tests were elevated haptoglobulins and ferritin, both consistent with a low grade inflammatory process including that associated with Lyme Disease. The existence of Lyme Disease in Australia is controversial, nevertheless, I have seen a number of people with the condition, acquired in Australia, I believe. As it is a tick borne bacterial infection, and he has had multiple tick bites at Avalon, Clareville, Taree and many places up and down the east coast of NSW, when he would often go 'trekking' through the bush with is DEA job over an eight year period. As I have seen a number of patients who I believe have acquired the infection on the northern beaches of Sydney, it would be impossible to say whether he acquired the infection there or in the course of his work with the DEA. [my emphasis] Certainly, the best evidence for isolation of the bacteria (a spirochaete or spiral shaped bacteria) that could cause Lyme disease is from the Manning River region, where I understand Phillip has worked for the DEA in the bush, sustaining tick bites. To attempt to resolve this, one can often review the first occurrence of the classic skin lesions of Lyme Disease, erythema migrans (EM). In 1994 or 1995 Phillip had a large lesion which was erythematous at the site of a tick bite over his left hip which lasted a few weeks but he's uncertain how long it took to come up after the tick removal. It was at least 15 cm in diameter, elongated and did not have central clearing. It was very itchy. It could have been EM or simply a local reaction to the tick bite. Unfortunately, Phillip could not remember its exact temporal occurrence with respect to his work in the bush with the DEA. Despite a number of courses of antibiotics, both oral and parenteral, Phillip has made only slow progress. He therefore has a condition that is compatible with Lyme Disease or Chronic Fatigue Syndrome. Unfortunately, Lyme Disease is associated with progression to CFS, and one can never be certain whether Lyme Disease is still active or whether the CFS like illness is part of the prolonged convalescence from Lyme Disease. There is no test that will unequivocally determine whether a patient does or does not have Lyme Disease, short of isolating the spirochaete usually from the classic EM skin lesion. The positive blood test for Lyme Disease at Newcastle could also be just a false positive result and unrelated to his current illness, however, once again, this is also difficult to determine." The doctor then goes on to comment about whether the plaintiff was fit for light duty work or not.
5. The plaintiff was reviewed again by Dr Hudson on 14 August and on 11 December 1997. As at 11 December 1997, the plaintiff was still having monthly injections of Bicillin, a form of penicillin, in addition to an initial 12 week course of such injections. As I understand it, he was also taking oral antibiotics. On 11 December 1997, Dr Hudson organised repeat biochemistry and haematological investigations: that is, further blood tests. I have no report about those blood tests before me, but it appears likely that they, again, revealed no abnormality. The plaintiff continued under Dr Hudson's care, at least until the time of his medical discharge.

Events after ceasing duty

1. I return now to recite of the course of events after the plaintiff completed his initial claim for hurt on duty benefits. In 1996, the plaintiff was married to Senior Constable Lisa Hewitt, and the couple had two young children. Senior Constable Hewitt was serving at Pittwater. Prior to going off on sick leave, the plaintiff had been transferred from the Surveillance Section of the State Intelligence Group to general duties at Dee Why which he commenced on 5 May 1996 but, clearly, only performed for less than two months prior to going off on sick report. As alluded to in one of the quotations I have made from Dr Hudson's reports, the plaintiff moved with his two young children to his mother's residence at South Penrith to remove himself from the northern beaches of Sydney where he might be exposed to further tick bites, living, as he had been, at Avalon. This caused undoubted hardship for both the plaintiff, his wife and their children.
2. On 14 October 1996, the plaintiff was seen by Mr Cesar Melendez of the NSW Police Rehabilitation Branch. Mr Melendez noted the plaintiff was suffering from at least six conditions which he lists as arthritis, muscular pains, dizzy spells, confusion, memory loss and chronic fatigue. He noted at that time that the plaintiff had an appointment to see "Mr Ahmed" who was a psychologist for "stress management." The evidence otherwise refers to a Dr Nazeer Ahmed, a special psychiatrist, at Penrith or in that area of greater Sydney. It is important to realise that a patient with a chronic condition that has a major effect on a person's wellbeing, livelihood and place of living can easily develop symptoms of a psychiatric nature relevant to the chronic underlying condition. It is not uncommon for persons, for example, with bad back pain which persists for a long time to become "stressed" about it and to be referred to a psychiatrist for assistance. That does not mean that the back pain is mediated by the psyche but, rather, that the somatic effects of back pain interfere with the patient's psyche and cause the need for from some secondary psychiatric treatment. It is clear from the oral evidence of Mr Woollard, which I have no hesitation in accepting, is that he was "stressed" after moving with his children to South Penrith, that he required assistance for symptoms of "stress" which he believed were secondary to the Lyme Disease from which he thought he was suffering. There is no suggestion that Dr Ahmed did anything to disabuse him of that belief. Unfortunately, there are no reports available from Dr Ahmed and his notes can no longer be found. No doubt the plaintiff would have been questioned about them if anything could be found from such notes or records that was inconsistent with the plaintiff's case.
3. As at the end of 1996, the Workers' Compensation/HOD section of the NSW Police was still considering the plaintiff's application for hurt on duty benefits. Since going on sick report, the plaintiff had used up his sick leave. In a report of 19 November 1996, the plaintiff said this: "I will exhaust my Annual Leave (118 hours) Additional leave (two days) and R.L.D. (four hours) leave entitlements on 2 December 1996. I am aware that all of this leave must be used before any Special Sick leave may be issued." The plaintiff then made a formal application for special sick leave and that was granted to him. It appears to have been paid to him up until the time of his medical discharge. However, the special sick leave was only granted for certain periods of time, and the plaintiff would have to make a further application at the expiry of the period of time which the special leave was granted. I have been provided with a number of applications for special leave and a number of determinations made in respect of such applications. In an application bearing date 8 May 1997, which is exhibit O, the plaintiff again applied for special sick leave, pointing out that he hoped to return to work in the future but he was then unable to indicate an exact date for when he might be able to return. He also pointed out that he was still waiting for a determination of his claim for hurt on duty benefits.
4. In May 1997, perhaps after that application for continued Special Sick Leave, the plaintiff was visited at his mother's home at Penrith by Sergeant Basedow who was from the Police Welfare Branch. He visited the plaintiff bearing an application for medical discharge. The sergeant advised the plaintiff that it was the policy of the NSW Police not to have any members on long term or extended sick leave and that the appropriate procedure was for him to apply for medical discharge. The sergeant gave the plaintiff the appropriate form to complete. The plaintiff said that he felt "shattered" by the information conveyed to him by Sergeant Basedow, but nevertheless, he acceded to the advice that had been given to him. He completed the application for medical discharge. It is exhibit P. It bears the date 27 May 1997. The plaintiff sought medical discharge on account of the condition of "Lyme Disease" which the form tells me the plaintiff claimed as being "HOD."
5. It is clear that the plaintiff was persisting with his claim to have the Lyme disease recognised as "HOD" because Senior Constable Avery submitted his reports on 6 July and 8 August 1997. However, on 22 August 1997, the plaintiff completed a report which became exhibit W. The report is this: "Issue Request by Senior Constable P Woollard...for the withdrawal of Hurt on Duty application (Lyme Disease). Background On 28 June 1996 I reported off duty on sick report suffering from Lyme Disease. As a result of this condition an application to have this condition recognised as Hurt on Duty was submitted and is currently being processed. Comment I have reconsidered my position at this point in time and have decided to have my Hurt on Duty application withdrawn. I have also at present a application for Discharge (Medically Unfit) from the service and wish for this to still be processed. Recommendation That my Hurt on Duty application for Lyme Disease be withdrawn whilst my application for discharge from the service, Medically unfit, be processed." That application was agreed to by the NSW Police.

Medical discharge

1. However, that did not mean that the plaintiff's application for medical discharge would be processed swiftly. Exhibit Z is a submission dated 13 October 1997 on behalf of the NSW Police to the defendant. That contains this matter: "Whilst Senior Constable Woollard is not suspended from duty, he is the subject of a current disciplinary/complaint inquiry. This matter stems from his previous duties as a surveillance operator and the activities of the Surveillance Branch were the subject of investigation at the Police Royal Commission. In the circumstances, the Service does not recommend the certification of this officer as permanently unfit, at this time." That submission clearly caused the defendant to put the plaintiff's application for medical discharge on hold. Eventually, however, the NSW Police must have advised the defendant that the plaintiff's medical discharge could proceed and a document which I shall quote later on indicates why that occurred. The plaintiff's application for medical discharge was put to a meeting of the Police Superannuation Advisory Committee ("PSAC") held on 25 February 1998. A recommendation was made to PSAC that, in essence, the plaintiff was incapable of discharging the duties of his office on account of Chronic Fatigue Syndrome. Nevertheless, as that was not suggested to be a "HOD" injury, it was not necessary for PSAC to certify the nature of the infirmity causing his inability to discharge the duties of his office. At its meeting on 25 February 1998, PSAC issued a certificate under s 8(1) of the Act certifying that the plaintiff was incapable of discharging the duties of his office and any other office in the NSW Police Force.
2. As the plaintiff had not completed 20 years' service as a member of the NSW Police, he was not entitled to a superannuation pension. He was, however, entitled to a "gratuity" under s 14(1) of the Act of a lump sum payment of two years pay. That entitled him to a lump sum of $92,649.18. That was paid into his superannuation account on or about 6 May 1998. Because of the certification of the plaintiff under s 8(1) of the Act on 25 February 1998, the plaintiff was discharged from the NSW Police on 5 March 1998.
3. It is instructive to consider the advice that had been tendered to PSAC for its consideration. There was a report of Dr Phillip Sharp, a specialist surgeon, who was a Police Medical Officer. That report is exhibit X. It bears the date 27 August 1997. It sets out matters concerning Lyme Disease to which I have already referred. It is clear that Dr Sharp accepted the symptoms of which the plaintiff told him were true, and Dr Sharp supported the plaintiff's application for medical discharge. He supported it on the basis of either Lyme Disease or Chronic Fatigue Syndrome. It is clear to me that Dr Hudson's report of 20 May 1997, which I have quoted extensively already, would also have been before PSAC. PSAC also sought advice from the government medical officer, Dr H Gapper. Dr Gapper recommended the plaintiff be referred to a specialist in the field, Dr Don Packham, who was the Staff Specialist in Infectious Diseases at the Westmead Hospital and in the Department of Infectious Diseases at Sydney University. In the final paragraph of his report of 30 January 1998, which is exhibit GGG, Dr Packham said this: "The diagnosis of Lyme disease is not established in my opinion on the evidence available to me. The organism responsible for Lyme disease has not been isolated in Australia, and interpretation of the serological tests based on the organisms causing Lyme disease in Europe and the USA is uncertain. Mr Woollard gives no history of exposure to ticks in an area where Lyme disease is known to be endemic in the northern hemisphere. The symptoms Mr Woollard complains of do occur in Lyme disease but are entirely non-specific. The absence of any documentation of the original skin lesion and the absence of the more severe complications of this infection such as meningitis, encephalopathy, inflammatory arthritis, or cardiac disease which are known to be associated with Lyme borreliosis provide little support for this diagnosis. This does not detract from the diagnosis of chronic fatigue syndrome for which there is often no diagnosed precipitating cause." That was followed by a further report on behalf of Dr Gapper, essentially, reiterating the advice provided by Dr Packham. One can understand, therefore, the plaintiff's being medically discharged and although it was not necessary to certify the infirmity which rendered him incapable of discharging the duties of his office, it is clear that PSAC must have been convinced, as was the submission made to it by the defendant, that the plaintiff was unable to carry out his work as a senior constable of police because of Chronic Fatigue Syndrome.

Why did the plaintiff withdraw his HOD claim?

1. I return to the issue of why the plaintiff withdrew his claim to have Lyme Disease certified as "HOD." The plaintiff told me that what prompted his withdrawal of his application was a telephone call from a gentleman at the Workers' Compensation/HOD Section of the NSW Police who advised him that his application would ultimately be unsuccessful and that it would expedite his medical discharge if he withdrew the application to have "Lyme Disease" accepted as a HOD injury. I admitted that evidence reluctantly under s 60 of the Evidence Act 1995. At common law, the evidence would have been admissible not to prove the contents of what was communicated to the plaintiff by the caller but only as evidence of something which prompted the plaintiff to take a certain course of action. However, under s 60 of the Evidence Act, what was communicated to the plaintiff becomes some evidence of the truth of what was said. Nevertheless, when one looks at all of the evidence on this issue, it becomes abundantly clear that the likely outcome of pressing on with seeking to establish that "Lyme Disease" was caused by the plaintiff's having been hurt on duty would have been unsuccessful.
2. Although Dr Hudson believed that the spirochaete in question might be found on the northern beaches of Sydney and in the Manning Valley, Dr Packham would not accept that, and it appears that the opinion of Dr Hudson had not been verified on any epidemiological basis. Before acceding to the advice given to him by the gentleman from the Workers' Compensation/HOD Section, the plaintiff took advice from Dr Hudson who told the plaintiff that he could not establish or prove that the plaintiff contracted Lyme Disease because of a tick bite in the course of his service as a member of the NSW Police. Even if Dr Hudson's opinions were accepted over those, for example, of Dr Packham, the fact remains the plaintiff lived on the northern beaches; he could have received the relevant tick bite in the course of normal life rather than the course of his duty. Furthermore, the definitive test, which was referred to by Dr Hudson in his evidence and is also referred to by Dr Sharp in his report, could not be carried out because the lesion on the plaintiff's left hip had long since gone away, and there was no subsequent recurrence of what might have been erythema migrans.
3. I accept that the plaintiff did not want to withdraw the claim, but on the advice that he was given, it was appropriate that he do so and, clearly, the plaintiff was anxious to resolve his financial position. Special sick leave would not be paid to him indefinitely and medical discharge, whether hurt on duty or not, would certainly lead to a financial payout. It should be noted that up until this date - that is, the date of the plaintiff's medical discharge from the NSW Police no one had offered to the plaintiff any diagnosis other than Lyme Disease or Chronic Fatigue Syndrome. No alternative or differential diagnosis had been supplied by Dr Sedhoff, no differential diagnosis by Dr Hudson, no differential diagnosis by Dr Sharp, the Police Medical Officer, no differential diagnosis by Dr Gapper or Dr Packham. The only differential diagnoses offered to the plaintiff were either Lyme Disease or Chronic Fatigue Syndrome. There is no evidence that Dr Ahmed provided the plaintiff with a primary diagnosis of some psychiatric illness, but if he thought that if there was some psychiatric disturbance, it was only secondary to the primary diagnosis of either Lyme Disease or Chronic Fatigue Syndrome.
4. Exhibit EEE is a confidential "Private Medical Attendance Report" provided by one of the plaintiff's treating doctors to Commonwealth Financial Services. It was probably for the purposes of some financial accommodation being sought by the plaintiff from the Commonwealth Bank. The form has been completed by Dr R Phillips of the Peninsula Medical Centre. That doctor was not one of the plaintiff's normal treating doctors. The third question asked of the practitioner was whether the plaintiff ordinarily enjoyed good health. The answer given was "no." The reason given was this: "Prolonged vague chronic fatigue illness investigated with equivocal Lyme disease serology results." Question 11 asked for any special information. Special information was provided concerning Lyme Disease and the plaintiff's general health. It was this: "Clinical chronic fatigue syndrome was attributed to Lyme disease and full medication applied with no beneficial effect. Personally I don't believe he ever had Lyme disease. I understand (personal contact) he has greatly improved since leaving the Police Force." When questioned in oral evidence about Dr Phillips' telling the plaintiff that he doubted whether the plaintiff ever had Lyme Disease, the plaintiff said he could not recall any such advice being given to him by Dr Phillips.
5. In the medical evidence, there is a gap between the end of 1998 and 2004. There are handwritten records from the Peninsula Medical Centre for 6 May 1999, 8 March 2000, 9 October 2002 and 12 July 2003. However, there is a computerised record for 9 October 2002. On that occasion, the plaintiff saw Dr Michal Forfa. The plaintiff went to see Dr Forfa again on 18 August 2004. The computerised record records this: "Feeling lethargic last several weeks." The record continues to outline areas which were not causing the plaintiff any problems. Dr Forfa prescribed a large number of blood tests. The plaintiff told me that in 2004, he had a relapse or recurrence of symptoms or the worsening of symptoms of what he thought was his Lyme Disease. That prompted the consultation with Dr Forfa on 18 August. The plaintiff returned to see Dr Forfa on 20 October 2004 to obtain the results of the blood tests. Those, essentially, were all negative. There was, again, no positive result for anything to do with Lyme Disease. On this occasion, the plaintiff was referred by Dr Forfa not back to Dr Hudson but to Dr Michael Diamond, a specialist psychiatrist.

The plaintiff sees a psychiatrist

1. The referral letter from Dr Forfa is exhibit HHH which prompted Dr Diamond to write a report dated 24 November 2004 to Dr Forfa following his initial assessment of the plaintiff on 16 October 2004. The plaintiff appears to have then stayed under the care of Dr Diamond. After the initial consultation on 16 November 2004, the plaintiff provided Dr Diamond with a "comprehensive written account of many experiences whilst serving as a police officer." That was provided to Dr Diamond on 4 January 2005. That consultation prompted Dr Diamond to write a short report to Dr Forfa dated 11 January 2005. The substance of that report is this: "In the interim he has provided me with a comprehensive written account of many experiences whilst serving as a police officer. Despite the fact that he was diagnosed with Lyme's disease and his symptomatology was attributed to that condition, it is very clear to me that he has all the features consistent with chronic post traumatic stress disorder that has never been addressed or treated. Whilst the treatment component is difficult at this stage because of the entrenched nature of the symptomatology and the avoidant behaviours that he exhibits, it is also significant that nothing has been done about obvious work related illness and the consequences. I have advised him to discuss his legal position with his solicitors with the understanding that it is my view that he has a work related injury that has disabled him. He proposes to do this in the near future and once this has been addressed by his solicitors, the issue of treatment can be further pursued. I think the actual process of pursuing his obvious entitlement in this regard will be therapeutic in its own right. The residual symptomatology can be addressed in the context of clinical consultation as we proceed." This is one of the very rare occasions in which I have cause to read a medical report that suggested that the process of making out a claim which could well involve litigation would be therapeutic rather than detrimental to a patient's health.
2. The next report I have from Dr Diamond is a medico legal report dated 20 June 2005. It has 15 pages, although the final page only contains the doctor's signature. It is a very lengthy report. It is unnecessary for me to set out all the history. However, some excerpts must be noted. On p 3 of the history, the doctor said this: "A further complication was that Lyme disease is not generally recognised as an entity in Australia and the diagnosis was challenged when he sought discharge from the Police Service on medical grounds." Clearly, that falls under the heading of history, and it can only be taken as that. However, there is nothing in Dr Diamond's report which indicates that he disagreed with the proposition that Lyme Disease was not generally recognised as a condition that could be contracted in Australia. One would have thought that if he had a view to the contrary, he would have expressed it.
3. Dr Diamond's history makes reference to a number of specific events which need to be noted. The first is an incident when the plaintiff was a member of the gaming squad. The history recorded by the doctor is this: "He spoke of an incident aboard a ferry on the harbour. The vessel was called the MV Proclaim and was used as a venue for illegal betting on the 18 foot skiff races on the harbour. He had infiltrated the betting operation as a punter and was to be present during a Gaming Squad raid and arrest. The timing of the raid was problematic, and the arrest was done before reinforcements could get aboard. The two officers effecting the arrest were set upon by about 200 people on the boat. There were threats to throw them overboard. Mr Woollard had to declare his presence as a police officer. He was fearful for his life. He is not a good swimmer. He had visions of being thrown under the propellers. He was pushed and shoved and spat upon. He feared for his life. They were finally rescued by the arrival of the backup group. Although he was armed, no firearms were produced. He was trying to reason with intoxicated people who were enraged by what was happening." The report goes on to record some symptoms that the plaintiff developed at that time. Another interesting incident is set out at the foot of p 5 of this report of Dr Diamond. It is this: "Mr Woollard was transferred from the Gaming Squad to the Physical Surveillance Branch (PSB) in October 1990. As part of that unit he was involved in a number of high profile operations as part of various task forces at the time. One such task force was Task Force Magnum, which dealt with a spate of armed holdups against armoured vehicles at the time. The target offenders were known for their violence. The level of secrecy and isolation of task force members was paramount to the success of the operation. It was mandatory that their surveillance cover was not leaked. In the course of the operation there was an attempted shooting of one of the detectives on the task force. For all members involved it became evident that the targets were aware of the home addresses of members of the task force. For a number of months Mr Woollard and his wife, a serving police officer at the time, slept with loaded weapons under their pillows and a shotgun under their bed. He describes this as a time of heightened arousal and fear. They became very sensitively attuned to any noise around the house at night. They had sensor lights installed around their home. The situation persisted for a number of months. His hyper arousal symptoms persist."
4. The circumstances concerning the plaintiff and the Police Royal Commission are also set out at length in Dr Diamond's medico legal report. The report says this: "Mr Woollard described his experience during 1996 when the physical surveillance branch became a focus for the activities of the Wood Royal Commission. Although there was some reason to target this group since there was alleged corruption amongst some members of the group. The tactics involved in dealing with the entire unit meant that all personnel were dragged into the investigation. Mr Woollard said most of the irregularities in the unit related to work practice and industrial and management procedures. It had to do with granting of time in lieu for work done on overtime. On-call allowances were not paid but time in lieu was issued. These practices did not accord with administrative procedures and technically they constituted improper conduct at some level. Mr Woollard reached a critical point in his career when he felt that he was placed in a position where he was made out to be "a criminal, a cheat and a liar". He says he felt shattered. He said it was devastating to be thought of by fellow members in the police and by the public as a criminal. Whilst they remained operational he felt added pressures because he felt their every move was being monitored and that any alleged impropriety would be prosecuted. He found this to be additionally stressful over and above the normal stresses of his operational work. Soon after that the entire unit was made non-operational when their covert offices at Eastgardens were closed down and their equipment was seized. Together with other officers they had to sit in the office awaiting the outcome of the Royal Commission. This occurred over a period of weeks. Members were called in to the Royal Commission to give evidence. Their vehicles were seized. They were directed not to discuss anything with fellow officers or their wives. He felt betrayed and very distressed at that time. When he attended the Royal Commission hearings to listen to evidence given by other members of the PSB, it became clear to him that the Commissioner was not prepared to listen to anything other than allegations of corruption. No explanation would suffice and it was not accepted that the practices of the entire unit were at the behest of senior management. He felt threatened and was overwhelmed. Whereas severe corruption was alleged he believed that any wrongdoing was essentially as a result of taking shortcuts with regard to industrial matters rather than corrupt behaviour. He felt isolated and abandoned. There was no ability to speak to anyone about what was appropriate behaviour at the time. He was threatened with the probability of criminal charges being laid. He feared that he would go to gaol. On 9/2/96 he attended the Royal Commission and was represented by a legal representative assigned to him by the Royal Commission. This individual, John Leslie, assisted in his application for amnesty and an application for resignation. He found this particularly difficult to do. He said he knew that he had done nothing wrong, yet because of the hysteria surrounding the Royal Commission, the Police Department and the media he had to throw away his career, his reputation and his integrity. His situation was made worse by the fact that on the day he was at the Royal Commission, Mr Leslie informed him that he (Mr Leslie) had been out celebrating his birthday. He says Mr Leslie smelled of alcohol and had slurred speech. He felt this was the ultimate betrayal. This was an officer appointed by the Royal Commission and was behaving in a highly inappropriate fashion in his role on the day. There was no criticism of Mr Leslie by the Royal Commission. His sense of betrayal was heightened. By the time he gave his evidence to the Royal Commission on 6/3/96 he said he could no longer be bothered trying to justify his actions as a member of the PSB but simply admitted to any wrongdoing alleged and stated only that he was not aware of doing anything that was wrong at the time he did it. The bitter irony was that later in March 1996 it was determined that the use of the amnesty was resulting on the wrong police officers being forced to use the amnesty and exit the Police Service. As a result of this amnesty the resignations of the PSB officers were withdrawn. Mr Woollard became more overtly symptomatic and distressed. The longstanding illness became disabling. He continued in his career as a police officer and was transferred to Dee Why Police Station to commence general duties. He says that during that period his health continued to decline. He described the symptoms at the time as feeling constantly fatigued, detached and being aware of significant memory lapse. He had to write notes to himself in order to concentrate on each task at hand. His level of disassociation worsened."
5. Additionally, I should mention that the plaintiff was served with a summons to appear before the Downing Centre Local Court to answer a charge of giving false and misleading information to the Police Royal Commission. Dr Diamond records that the plaintiff was informed of the issue of the summons on 23 July 1996 and that it required him to appear in the Downing Centre Local Court in September 1996. The plaintiff told me that he, himself, did not appear because he was ill. That appears to me to be corroborated by the first report in exhibit DDD, a manuscript report of Dr Sedhoff dated 29 August 1996 which says this: "This letter is written to state that Philip Woollard is suffering from a medical condition that would make him unfit to attend court on 3 September 1996." However, the plaintiff did appear through by a solicitor and, eventually, the charges were withdrawn.
6. There are two relevant passages in Dr Diamond's medico legal report concerning the diagnosis of Lyme Disease and the alternative diagnosis of Chronic Fatigue Syndrome. At the foot of p 8, Dr Diamond said this: "The possible diagnosis of Lyme disease was seen as a simple solution to a highly complex problem. The suggestion that this could offer him a dignified way of exiting the Police Service as a result of a work related injury cannot be underestimated. It should also be noted that at the time, in the mid-nineties, there was a much greater interest in difficult to diagnose illnesses such as Lyme disease and chronic fatigue syndrome. These are essentially conditions where there is no definitive pathology to identify other than to assess for evidence of certain types of infective illness and to treat this speculatively with a variety of antibiotic drugs. The interest in these conditions at that stage was far higher than it is now." From my work as a judge of the Compensation Court in the late 1990s, I can wholly accept the validly of what Dr Diamond there says. The only thing he failed to include was a further alternative diagnosis of Multiple Chemical Sensitivities. On p 14 of his report, Dr Diamond said this: "I specifically asked Mr Woollard why this [the failure to make the diagnosis of a psychiatric condition] had happened. He explained to me, as discussed earlier in the report, that the suggestion by the general practitioner he had suffered a disease as a result of exposure to tick bites was a great relief to him at the time. Not only was the suggestion acceptable to him but also was followed by referral to an expert and investigation and treatment provided some hope that his diverse symptoms could be cured. Mr Woollard went on to tell me that for many years his life as a covert operational officer meant that he was most reluctant to divulge any of his policing activity to anyone. For years he was accustomed to saying little about what he did. Furthermore, he was unwell as a result of long standing chronic post traumatic stress disorder. His way of coping with this was to remain distracted and focused on specific tasks. He was not accustomed to talking about his emotions and was most reluctant to display these to anyone."
7. Later opinions were obtained from Dr Anthony Dinnen, a consultant psychiatrist retained by the plaintiff's solicitors, and from Dr Robert Lewin, a forensic psychiatrist retained by the defendant. On the same issue, Dr Dinnen said this in his report of 25 January 2011: "This case classically features the difficulties of diagnosing post traumatic stress disorder because of two main reasons the reluctance of those who have been traumatised to acknowledge the impact of those experiences, or even to be aware of that impact, mainly because of the coping strategy of avoidance and suppression of traumatic memories and experiences which are central to the condition. The second factor is that the diagnosis often escapes those who are not particularly skilled and experienced in diagnosing and treating the condition, and is mistaken for other conditions such as depressive disorder or alcohol abuse. Indeed, the co-morbid association of post-traumatic stress disorder and substance abuse or dependence, and depression, is in the order of 50% for each." On this issue, Dr Lewin had this to say in his report of 24 June 2009: "Mr Woollard described a conflict of medical opinion as to the nature of his symptoms which were initially attributed to Lyme Disease. At an earlier stage, Mr Woollard was also considered to have "Chronic Fatigue Syndrome." The symptoms could reasonably be attributed to a psychiatric condition in the absence of a defined medical explanation of a physical nature. It is common for the patient to seek a physical diagnosis at an earlier stage of proceedings and for the diagnosis to be changed to a psychiatric diagnosis once more is understood of the case. On the basis of the available information, those symptoms which were attributed to Chronic Fatigue Syndrome in the 1990s may well represent part of the diagnosed psychiatric condition described above."
8. Dr Lewin did not accept the diagnosis of post-traumatic stress disorder but diagnosed a partially treated major depressive episode. Whatever the correct psychiatric moniker for what the condition be, it is accepted by both the plaintiff's psychiatrists and the defendant's psychiatrist that the symptoms that were diagnosed back in 1996, 1997 and 1998 as either Lyme Disease or Chronic Fatigue Syndrome were, in effect, the symptoms of a disabling psychiatric condition. With the benefit of hindsight, with the benefit of repeated negative testing, it is now obvious that the diagnosis provided to the plaintiff in 1996 under which he laboured until 2004 was on incorrect diagnosis for his condition. He did not have a physically determined condition that could be treated physically as was being done by Dr Hudson, but he had a psychiatrically determined illness which needed to be treated in the appropriate fashion, not with prescription of antibiotics and the like.

The plaintiff makes a further application

1. Armed with Dr Diamond's medico legal report of 20 June 2005, the plaintiff's solicitors wrote to the defendant on 26 July 2005 a letter which became exhibit PP. The letter says this: "We confirm that at the request of the Police Association of New South Wales, we act on behalf of former Senior Constable Philip Woollard who was medically discharged from the New South Wales Police Service in March of 1998. We have received instructions from Mr Woollard that he wishes to make an application to [PSAC] seeking amendment to the infirmities that are presently contained in the Certificate that brought about his medical discharge from the Police Service. In light of our client's instructions, we would request that you forward to us the necessary forms presently being utilised by the Committee to determine such matters so they can be completed and the application made on behalf of our client. We therefore await the supply of the necessary forms so a s 10B(2) Application can be made to the Committee." The defendant replied appropriately on 22 August 2005. Generously, the defendant in that letter said this: "To ensure Mr Woollard is not disadvantaged with respect to the "date of application", the relevant date of application in respect of him will be 28 July 2005, i.e. the date of receipt by Pillar Administration [the defendant's agent] of your letter dated 26 July 2005." That led to the submission of the application for superannuation allowance under s 10B(2) to which I have earlier referred. That clearly was received by the defendant on 15 November 2005. However, no decision was reached by the defendant until 10 February 2010, over four years later. Even then, nothing then occurred until 24 June 2015 when the Commissioner of Police made a decision, almost ten years after the plaintiff made his application under s 10B(2).

Delay

1. Shortly before I adjourned last Friday afternoon at approximately 4.30pm, I had reached the stage where the defendant had received the plaintiff's application for a superannuation allowance pursuant to s 10B(2) of the Act on 15 November 2005. When the plaintiff's solicitors forwarded that application to the defendant under cover of letter of 11 November 2005, the plaintiff's solicitors also provided to the defendant a copy of Dr Diamond's report of 20 June 2005. In a letter of 28 November 2005 (which is exhibit TT), the defendant pointed out to the plaintiff's solicitors that Dr Diamond had not addressed certain issues, and the defendant asked for a further report from Dr Diamond. In a letter of 17 January 2006, the plaintiff's solicitors raised a question about the defendant's request for the further report. That met a response on 31 January 2006 from the defendant (which became exhibit VV). In it, the defendant pointed out that it anticipated certain amendments being made to the Act, and until those amendments came into force, PSAC would not consider any pending matters. The defendant apologised in advance for any delay but pointed out that in accordance with earlier correspondence, the plaintiff's application would be seen to have been received on 28 July 2005.
2. In a letter of 7 March 2006, the defendant requested from the Commissioner of Police whether the plaintiff had advised the Commissioner of Police of any injury referable to his suffering from either post-traumatic stress disorder [PTSD] or from depression. On 8 May 2006, the defendant advised the plaintiff that it was still awaiting an amendment to the Act but it was still making preliminary investigations of all aspects of the plaintiff's claim under s 10B(2). On 22 May 2006, the Commissioner of Police advised the defendant that the Commissioner of Police did not consider that the plaintiff had complied with the provisions of the Act that required him to notify the Commissioner prior to his retirement and within six months of the injury occurring of any injury referable either to depression or PTSD.

Certification of the relevant infirmity

1. What happened thereafter is, as far as I am concerned, a mystery. However, I do know from exhibit A that on 10 February 2010, the defendant's Disputes Committee certified that the plaintiff had been incapable of discharging the duties of his office on account of the infirmity of "Major Depressive Episode." That infirmity appears to have been accepted by the Disputes Committee on its acceptance of Dr Lewin's opinion expressed in his report of 24 June 2009 (which is exhibit LLL). It is clear from that report that Dr Lewin was qualified by the defendant in order that his advice be provided to the Disputes Committee. That is because his report is addressed to not only the defendant's solicitor but also the Manager of Disputes and Appeals of the defendant. On the issue of diagnosis, Dr Lewin said this: "You ask me to consider questions regarding psychiatric diagnosis. Mr Woollard described a complex of reactive symptoms of depression and anxiety, clearly evident from the mid-1990s onwards. Some symptoms were present from the 1980s onwards. The symptom complex included post traumatic symptoms of anxiety and depressive symptoms as well as a pattern of abuse of alcohol. The long-term pattern was one of a mixture of anxiety and depressive symptoms. I note that Dr Diamond concluded that Mr Woollard suffered Chronic, Post-Traumatic Stress Disorder. Upon the basis of the history reported by Mr Woollard, that is a reasonable diagnosis. On the other hand, I note that Mr Woollard described a predominant pattern of depressive symptoms complicated by panic symptoms which are anxiety symptoms. Upon that basis I diagnose a Major Depressive Episode. At various times Mr Woollard was abusing alcohol as well. When the available data is considered, either diagnosis could reasonably apply. On the same basis there is no reasonable, physical diagnosis to account for these symptoms. Whether the formal diagnosis is [PTSD] or Major Depression, it is clear that Mr Woollard was suffering from a recognised psychiatric condition over a period of several years during the relevant period. That condition was evident at the time he left the Police Service in March 1998. By the time I came to examine Mr Woollard, the problems relating to alcohol use had remitted. Mr Woollard reported some residual depressive symptoms, including lassitude, whilst other features, such as sleep disturbance and difficulty with concentration, had settled. The current diagnosis is a partially treated Major Depressive Episode. The condition is now considered to be almost in remission."

Proceedings elsewhere

1. It is clear that the plaintiff was not enamoured of the diagnosis of an episode of Major Depression as determined by the defendant's Disputes Committee on 10 February 2010. On 28 July 2010, the plaintiff filed an application for leave to appeal from the decision of the defendant's disputes committee with the Industrial Relations Commission of New South Wales. That application was allocated to Haylen J. It appears to have become apparent to his Honour early in the proceedings before him that a critical issue was the proper application of the decision of the Full Bench of the Commission in SASTC v Hazlewood [2009] NSWIRComm 157; (2009) 188 IR 174. Haylen J, accordingly, referred the matter to the President of the Commission pursuant to s 193 of the Industrial Relations Act 1996 for consideration as to whether a Full Bench of the Commission should be constituted to consider five questions. On 27 May 2011, the President determined that a Full Bench should deal with the questions referred by Haylen J.
2. The hearing before the Full Bench occurred on 2 December 2011. The Full Bench gave its decision on 25 June 2012: [2012] NSWIRComm 51. The formal decision made by the Full Bench was that the matter be delegated to a Member of the Full Bench to take evidence in advance of further hearing before the Full Bench which would then determine the matter in accordance with the decision published on 25 June 2012. The person to whom the matter was allocated to take evidence was the President, Boland J.The President took the oral evidence and any written evidence on 25 and 26 October 2012. There was then a further hearing before the Full Bench on 8 February 2013, and the Full Bench published its reasons on 8 March 2013: [2013] NSWIRComm 16.
3. The current defendant was not enamoured of that decision of the Full Bench. The current defendant commenced proceedings in the Court of Appeal seeking an order in the nature of certiorari. That application was heard by the Court of Appeal on 1 October 2013. The decision of the Court of Appeal was given on 28 March 2014: SAS Trustee Corporation v Woollard [2014] NSWCA 75. The Court of Appeal quashed the decision of the Full Bench made on 8 March 2013 and ordered that the matter be remitted to the Industrial Court to be dealt with according to law. The principal judgment of the Court of Appeal was given by Bathurst CJ with whom Tobias AJA concurred. The matter which was agitated in the IRC and in the Court of Appeal concerned the proper interpretation of the requirement that notice be given of an injury prior to the medical discharge of the member of the Police Superannuation fund.
4. Succinctly, Bathurst CJ said this: "[67] In circumstances where it was stated in the Second Reading Speech in respect of the Amendment Act that the intention was to confer benefits in circumstances where a worker would be entitled to workers' compensation benefits (see par [21] above) it seems appropriate and consistent with the workers' compensation legislation, to include a psychiatric disease within the definition of 'injury'. That also enables s 10B(2) and s 10B(3) of the Act, which incorporate the concept of 'hurt on duty', to be read harmoniously. [68] Whilst that may lead to some awkwardness of construction of s 10B(2)(b) of the Act in circumstances where the injury and infirmity of mind are identical, that does not in my opinion alter the position. The same consequences could follow from a physical injury, for example, with the loss of a limb, both the injury and the resulting infirmity are the loss. [69] Therefore CPTSD can be an injury under the Act. However, it was not notified. What was notified was there were symptoms which may have been consistent with the disease. The underlying cause of these symptoms was either not diagnosed or misdiagnosed at the time of Mr Woollard's retirement and only diagnosed some years later as symptomatic of post-traumatic stress disorder. It does not seem to me that these symptoms could be described as the relevant injury for the purpose of s 10B(2)(a) of the Act. [70] In this regard it is important that for the purposes of s 10B(2)(a) of the Act, the relevant injury must be causative of the infirmity of body or mind. The symptoms reported may have been the result of the infirmity but they could not be said to be the cause of it. [71] It follows in my opinion that the majority in the first decision erred in concluding that notice of the injury, giving rise to the infirmity of CPTSD was given." Basten JA (obiter dictum) believed that the jurisdiction to determine the issue of the giving of notice was with this Court rather than the IRC but that reasoning was not considered by the majority.

The Commissioner of Police makes a decision

1. It would appear that when the matter returned to the IRC, the plaintiff withdrew his appeal to the IRC. In the meantime, in the normal course of events, after the defendant's Disputes Committee reached its decision on 10 February 2010, it had asked the Commissioner of Police to make a decision as to whether the suffering by the plaintiff of the episode of Major Depression was caused by his having been hurt on duty. The Commissioner on 14 October 2010 decided that question adversely to the plaintiff.

Earlier proceedings in this Court

1. In accordance with s 21 of the Act, the plaintiff commenced proceedings in this Court on 7 October 2010 seeking the Court's decision on the issue that had been determined by the Commissioner of Police. The proceedings in this Court were regularly called over by me and by other judges between 7 February 2011 and 4 May 2015. Once the plaintiff had abandoned his appeal to the IRC, he was required to prosecute his appeal in this Court. Happily, I was told on 4 May 2015 that the matter had been settled in principal. On 28 May 2015, a consent order was filed in this Court setting aside the decision of the Commissioner of Police made on 14 October 2010 and determining that the suffering by the plaintiff of the infirmity of "Major Depressive Disorder" was caused by the plaintiff's having been hurt on duty on 5 March 1998. The Commissioner of Police then did what is in my view an otiose thing: he issued a fresh determination on 24 June 2015 revoking his decision of 14 October 2010 and then making a decision that this Court had made by consent on 28 May 2015.
2. I have a problem with the consent order made on 28 May 2015 when the Court seal was attached to the consent order by the Registrar. The problem is with the "deemed date of injury." 5 March 1998 was the day on which the plaintiff was discharged from the NSW Police. The "deemed date of injury" has to be the day on which the plaintiff last physically worked. It is not clear what that day was. I know that on 28 June 1996, the plaintiff saw Dr Sedhoff and went on to sick report. It appears to me unlikely that he worked on that day. The question is: what is the day on which he last worked? 28 June 1996 was a Friday. It may well be that the date the plaintiff last physically worked was 27 June 1996. If that be correct, that is the correct deemed date of injury. However, at the current time, nothing turns on this "irregularity."
3. Following upon the Commissioner of Police accepting that the suffering by the plaintiff of an episode of Major Depression was caused by his having been hurt on duty, the defendant became liable to pay to the plaintiff his superannuation allowance pursuant to s 10B(2) of the Act. However, on 30 July 2015, PSAC on behalf of the defendant determined that the plaintiff's pension entitlement would commence on 28 July 2005 being the date initially indicated to the plaintiff's solicitor by the defendant in the defendant's letter to the plaintiff's solicitors of 22 August 2005. It is that decision which is the subject of the current proceedings.

Consideration

1. It is obvious from all that I have said already that the plaintiff was unfit to perform the duties of his office from the time of his discharge from the NSW Police on 5 March 1998 until 26 July 2005 by the episode of Major Depression diagnosed by Dr Lewin and accepted by the defendant's Disputes Committee as the relevant infirmity on 10 February 2010. In determining questions concerning "backdating", a critical consideration is whether a plaintiff gives an explanation for the relevant delay. I make that observation based on what fell from Basten JA in Daley v SAS Trustee Corporation [2016] NSWCA 111 at [133]. Here, the explanation has been given, and it is clear. The plaintiff believed on the medical advice available to him that his inability to perform the duties of his office was caused by his suffering either Lyme Disease or Chronic Fatigue Syndrome. Indeed, they were the only diagnoses offered to him by any medical practitioners until the end of 2004 when the plaintiff first consulted Dr Michael Diamond, on 16 November 2004.
2. I quoted the opinions of both Dr Diamond, Dr Dinnen and, indeed, Dr Lewin as to how the practitioners treating the plaintiff commencing in 1996 treated the wrong condition and gave the plaintiff incorrect advice as to the cause of his inability to carry out the duties of his office. The misdiagnosis asserted by the plaintiff in his application to the defendant pursuant to s 10B(2) is clearly established. Although the plaintiff was seen by Dr Nazeer Ahmed, a psychiatrist in Penrith, in late 1996, it is clear from not only what the plaintiff said but also from the observations made by the other practitioners in this case that it was thought that if the plaintiff had any psychiatric difficulty, it was secondary to either Lyme Disease or Chronic Fatigue Syndrome and was not the primary cause of the plaintiff's inability to carry out the duties of his office.
3. The reason for the plaintiff's delay in applying under s 10B(2) is clear. Nevertheless, the defendant criticises the plaintiff's behaviour because he had not persisted in 1997 with his application to have either Lyme Disease or Chronic Fatigue Syndrome accepted as having been caused by his having been hurt on duty. I sought to point out on Friday that if the plaintiff had persisted with such an application, he would have failed. When the plaintiff withdrew his application to have Lyme Disease accepted as having been caused by his having been hurt on duty, he was accepting the inevitable, perhaps goaded on by his financial position at the time to which I also alluded. The plaintiff cannot be criticised for withdrawing his application to have his suffering of either Lyme Disease or Chronic Fatigue Syndrome as being caused by his having been hurt on duty at all. Nor can he be criticised for his conduct at any time between 1997 and 2005 for not applying under s 10B(2) for a hurt on duty superannuation allowance, because he was unaware until late 2004 that his condition was caused by a psychiatric illness or, perhaps, to put it more eloquently: because he did not know that his inability to carry out the duties of his office was caused by a psychiatric illness.
4. The defences of waiver and estoppel by conduct have, in my view, no application to the facts of this case. Mr O'Rourke for the plaintiff referred me to the advice of Lord Bingham of Cornhill in Millar v Dickson (Procurator Fiscal, Elgin) [2001] UKPC D4; [2002] 3 All ER 1041. I was intrigued by that decision as to how the Privy Council had jurisdiction in a matter internal to the United Kingdom. However, it appears that the Privy Council had jurisdiction given to it by the statute devolving power to Scotland. The decision is also topical because it involves a conflict between a law of the United Kingdom and a European convention, a conflict which might not persist much longer. Commencing at [31], his Lordship considered the question of waiver. His Lordship commenced thus: "In most litigious situations the expression 'waiver' is used to describe a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise." His Lordship went on in the remainder of that paragraph and in a number of succeeding paragraphs to apply that observation to the peculiar facts of the matter then before the Privy Council. In the current case, it cannot be said that the plaintiff made a voluntary, informed and unequivocal election not to claim a pension entitlement under s 10B(2). Indeed, it could not be said that the plaintiff made a voluntary, informed or unequivocal election not to claim an entitlement under s 10B. He, at the time he elected not to pursue his hurt on duty claim for Lyme Disease, 22 August 1997, did not know that his inability to perform the duties of his office was caused by a psychiatric condition, nor at that time did he wish to abandon any possible entitlement in futuro to a finding that his inability to perform the duties of his office was caused by his being hurt on duty when one considers the exact words he used in exhibit W: "I have reconsidered my position at this point of time and have decided to have my hurt on duty application withdrawn." [My emphasis.] If he were discharged for Lyme Disease/Chronic Fatigue Syndrome and evidence subsequently became available to him to establish that it was caused by his having been hurt on duty, nothing which he said at that time could amount to a waiver.
5. In referring to the question of waiver, Mr Ower referred me to my decision of Mason v COP [2013] NSWDC 274 at [101] [107]. However, that was a very different case to the present one and is hardly comparable in any way at all. Mr Ower then submitted this: "On one view of the evidence, it could be reasonably inferred that he did not explore the prospects of a stress related infirmity at the time because of his understanding that it would probably be rejected as HOD because it was linked to his involvement with the Wood Royal Commission. It is highly likely that Dr Ahmed would have advised him about the possibility of his depression being quite distinct from his diagnosis [of] Lyme disease." Unfortunately, as I have already pointed out, we do not have anything directly from Dr Ahmed, either a report from him, his note or any viva voce evidence. I do know that the doctor's notes can no longer be found. It is highly unlikely that he would remember anything about the plaintiff if he gave evidence before me in 2016, 20 years after he treated the plaintiff. As I have said, the inference to be drawn from the plaintiff's evidence and the evidence of the other practitioners before me is that it is more probable than not that Dr Ahmed would have advised the plaintiff or proceeded on the basis that the plaintiff's psychiatric symptoms were secondary to either Lyme Disease or Chronic Fatigue Syndrome. In those circumstances, the plaintiff would not have explored the prospects of his infirmity being caused by a psychiatric condition rather than what he thought it was caused by, Lyme Disease.
6. True it is that the plaintiff, if he had been certified as having a "stress related disorder" would probably not have been accepted by the Commissioner of Police as being "hurt on duty" as a matter of policy at the time because it was thought that the stress related not to actual doing of one's duty but to one being embroiled in the Royal Commission into the NSW Police Force at the time. Mr Ower supported the submission which I have quoted by pointing out that the plaintiff admitted that Dr Ahmed was talking to him about stress and that he prescribed an antidepressant which the plaintiff did not take and, therefore, the plaintiff should have been aware that his condition may have been primarily caused by a psychiatric illness. However, in my view, the plaintiff did not have that insight or that appreciation and, on the evidence before me, I would not infer that he ought to have had such an insight or understanding. After all, he was being treated by an eminent physician in the field, Dr Hudson, the infectious diseases physician and microbiologist at the Royal North Shore Hospital.
7. As far as estoppel by conduct is concerned, Mr O'Rourke drew my attention to Handley, Estoppel by Conduct and Election, 2nd edition, 2016. Estoppel by conduct is a phrase which is appropriate to describe a number of different estoppels: they include estoppel per rem judicatam, estoppel by deed, estoppel by convention and estoppel by representation. To establish the estoppel alleged by the defendant, the defendant needs to prove a number of elements. They are these: (i) a statement or other conduct by the representor that constitutes a representation of fact; (ii) the communication of that representation of fact to the representee; (iii) the representee's justifiable belief in the truth of the representation of fact and the representee's alteration of position in that belief; (iv) an attempt by the representor to contradict his representation of fact; (v) prejudice to the representee as a result of the representee's alteration of position if contradiction of the representation of fact were permitted.
8. Exhibit W does not constitute a representation of fact. It is merely a representation by the plaintiff that as at 22 August 1997, he wished to withdraw his claim to have the condition of Lyme Disease determined to have been caused by his having been hurt on duty. It is not a statement that the condition that he had was not caused by his having been hurt on duty but, rather, that he would not press the allegation at that time. Furthermore, that position is completely irrelevant to the fact that the psychiatric illness which was the real cause of his condition, was caused by his having been hurt on duty. Furthermore, the alleged representation was made to the Commissioner of Police, not to the current defendant. The current defendant was only liable to pay a hurt on duty superannuation allowance if the necessary certification was made by PSAC and the Commissioner of Police accepted that the infirmity certified by PSAC was caused by the plaintiff's having been hurt on duty. It appears to me that the person who could raise such a representation as an estoppel is not the current defendant but the Commissioner of Police, and the Commissioner of Police has not done so. Furthermore, no change of position by the defendant, to its detriment, has been established because the defendant has not established exactly what the detriment is. It can hardly be a detriment to the Trustee of a Superannuation Fund to pay out of the fund benefits to which the beneficiary is entitled. In my view, there is no substance in the defence raised by the defendant of estoppel by conduct.
9. A final position taken by the defendant was that if no waiver had been established, nor any estoppel by conduct been established, that such matters could be taken into account by the Court in the exercise of its discretion. Mr O'Rourke, for the plaintiff, headed that part of his written submissions which deals with this issue in this fashion: "Alternative Defence Estoppel and Waiver - it's just the vibe." That may be taking popular language a little too far. I summarised to Mr O'Rourke the defendant's position as being its tabula in naufragio its plank in the shipwreck - a concept well recognised in equity as an ultimate solution to a difficult problem.
10. Nothing done by the plaintiff can, in my view, be seen as disentitling him to the backdating of his pension benefit. He did not know until he was referred to Dr Diamond in late 2004 that the condition which made him unable to carry out the duties of his office was caused by a primary psychiatric condition that could be ascribed to the work he did as a constable of police over many, many years. If the defendant has any substantive complaint to make it is that the plaintiff's condition was misdiagnosed by his treating doctors in 1996, 1997 and 1998, and there was nothing available to the defendant to say otherwise. For example, the report of Dr Sharp, the police medical officer, of 27 August 1997, which is exhibit X, which was clearly available to the defendant, did not raise as a possibility that the plaintiff's condition was caused by some primary psychiatric illness; nor, for that matter, did the independent advice available to PSAC give rise to such a suggestion, the report of Dr Gapper of 11 December 1997, and the report written on behalf of Gapper on 13 February 1998 and the report of Dr Packham of 30 January 1998, all of which appear to suggest that the plaintiff's condition was not Lyme Disease but Chronic Fatigue Syndrome. There was a real dispute at that time as to whether Chronic Fatigue Syndrome was a physical condition or a psychiatric one, but that was not ventilated in the current case at all.
11. One further thing that I ought say about the defendant's submissions is this: the defendant submitted that because of the delay between the plaintiff's ceasing work in 1996 and the ultimate certification of the plaintiff by the Disputes Committee in 2010, the plaintiff obtained the benefit of a more generous test of ability to perform the relevant duty. For example, a s 10B currently imposes the following test: "incapable....of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act 1990." The relevant test at the time can be found in Derrick Boland v SAS Trustee Corporation [1999] NSWIRComm 48. The former member of the NSW Police in that case resigned from the Police Force on 10 April 1995. The statutory test at the time was this: "incapable, from any infirmity of body or mind, of discharging the duties of a member's office at the time of a member's resignation or retirement." In the current matter, the plaintiff would clearly, on my assessment of the evidence, have satisfied either test of incapacity for the duty in question: that is, he would have satisfied either test of "incapability", the word that Mr Ower used, using the statutory language, a word which I eschew using because it appears to me the appropriate noun is "incapacity." However, the point is clear: no matter which test is applied, the plaintiff, in my view, would have satisfied either. In my view, there is no reason at all why the plaintiff's hurt on duty pension should not be backdated to the date of his discharge. It was clearly the cause of his incapacity between 1998 and 2005, and he was clearly disabled during that period, and there is no reason not to backdate the pension. His application in 2005, if it be considered late is wholly explained in the current circumstances.
12. For those reasons, I set aside the decision of the defendant made on 30 July 2015 and determine that the commencement date of the plaintiff's superannuation allowance is 6 March 1998.
13. I order the defendant pay the plaintiff's costs.
14. Exhibits to be returned.
15. I neglected to point out that the relevant statutory provision concerning the ability of the defendant to determine the date from which the pension ought consider was s 9A(4) in its repealed form: "Where an annual superannuation allowance is granted under s 10 to a former member of the police force who resigned or retired, the allowance is payable as from the day determined by the STC for that purpose."
16. The provision in question was amended with effect from 30 June 2006 into the current form of s 9A(4). However, that amendment was not retrospective as determined by the Court of Appeal in SAS Trustee Corporation v Cox [2011] NSWCA 408.

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: 20 September 2016