May v Commisioner of Police [2001] NSWCC 31

Compensation Court of New South Wales

CITATION : May v Commisioner of Police [2001] NSWCC 31 revised - 04/09/2001 John L May PARTIES : v Commissioner of Police MATTER NUMBER(S) : 02315 of 1998 JUDGMENT OF: Hughes J at 1 CATCHWORDS: Entitlements & Liability :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 20/03/00, 19/06/00, 20/06/00, 21/06/00, 22/08/00, 25/08/00 DATE OF JUDGMENT: 04/19/2001

FOR APPLICANT: Mr P Dailly instucted by Taylor and Scott LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M Jacobs QC and Mr A Kostopoulos instructed by Legal Services Branch

JUDGMENT:

Pleadings 1. By Application for Determination filed on 19/02/1998 the applicant John Leslie May brings before the court for the court to determine whether the determination of the delegate for the Commissioner of Police's finding that the applicant was incapacitated for police duties due to the infirmity of Major Depression and this infirmity was not duty related is correct or that the infirmity was duty related as the applicant maintains. Issues Applicant May

2. Were the applicant's police duties a factor of the certified discharge infirmity of Major Depression? Respondent Commissioner

3. Were the applicants police duties a substantial cause to the certified discharge infirmity of "Major Depression"? Relevant Legislation 4. Hurt on Duty Police Regulation (Superannuation) Act 1906 s1(2) injury NSW Workers Compensation Act 1987 s4(a) & (b)(ii) compensation for psychological injury NSW Workers Compensation Act 1987 s11A. This section came into effect on 1/1/1996 and was repealed on 12/1/1997 and was replaced by the current section 11A which came into effect on 12/1/1997. It applied to injuries suffered after 1/1/1996 and relevantly reads: S11A (1) No compensation is payable under this Act in respect of an injury that is psychological injury unless: the employment concerned was a substantial cause of the injury, and the injury was not wholly or predominantly caused by the reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or the provision of employment benefits to workers. A psychological injury is an injury (as defined in section 4), that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system. A worker's employment is not be regarded as a substantial cause of a psychological injury merely because the employment is a real or actual cause of the injury. The term substantial is used in this sense of real and important. I. This section does not extend the definition of injury in section 4. In particular this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment Question to be Answered 4. Was the police work a factor or a substantial cause of his admitted psychological injury? If a factor only, as s11A applicable at the relevant time? History 5. John Leslie May was a long standing police officer who served in various parts of the police force, as outlined below: 6. Mr May attended school to the School Certificate level. In 1969 he joined the police cadet corp. at the age of 17. He worked at various police stations while a cadet attending to filing, inquiries and administration of duties. 7. 1971 he was sworn in as a probationary constable and attached to the North Sydney Police Station and in Neutral Bay Police Station and after a short period he was transferred to the Pymble Police Station, again in general duties. He remained at Pymble for a number of years and then applied for plain clothes duties with the Chatswood detectives. 8. He was transferred to the #21 Special Squad in 1976 and performed duties at the observation squad on a loan basis. 9. After that period in 1976 he was transferred to the Burwood detectives and shortly after that Eastwood detectives. 10. Whilst he was in the 21 Special Squad, he performed some duties that were then required of policeman to act as provocateurs to homosexuals and then arrest them. He didn't like this duty and felt that having to frequent public toilets and urinate in public and so on, was something he disliked and this kind of duty was called peanutting. 11. By 1980, he was transferred to the Philip Street police station and was asked if he would like to join the observation squad and he was transferred there in early 1980 on probation. He was told that this was under cover work requiring long hours and would interrupt his private life for that reason, and he was on call at unusual times and he had to perform tasks such as control buying of drugs and other illegal property with a view of gaining evidence to convict persons of criminal activity. 12. This was an undercover job where he had to associate with criminals. This was a high risk occupation and he says that he was sometimes lured into dead end streets where he felt he may have been ambushed by criminal elements. A complication of that time was the poor equipment issued to officers and the radio equipment was such that Mr May felt unsafe when calling for backup. He found that the equipment was not reliable enough for him to depend on it when he was in extreme danger. 13. The danger was added to by the unreliability of the equipment. He gives an instance following a surveillance in the Minto area, he arrived at an address where a fellow arrived in a stolen vehicle. Mr May was unable to communicate with support police and he and another policeman had a rifle aimed at them and when Mr May chased the offender, the offender attempted to stab him. Mr May shot the offender in the legs. He had bad dreams after that from the incident and, subsequent to that he received death threats and was harassed by the family of the offender he had shot and indeed his wife and children were also threatened and had to relocate to other premises. He did not receive counselling or support following this incident and to this day it still causes him concern. He was called unflattering names by his fellow policeman over that incident. 14. In 1982 the observation squad was amalgamated with the Bureau of Crime Intelligence, which worked with a team concept rather than individually. Mr May had to gain intelligence of criminal activities involving the Hell's Angels motorcycle gang. He had to photograph them and was accosted by the members after they asked him whether he was in the police, which he denied. 15. Incidentally, I mentioned during the running of this case, that Mr May had to be a practiced liar to do this line of police work. He was having to constantly deny he was a policeman and had to be very convincing if he was to make them believe him. Mr May says that during this period he became agitated and had insomnia and was constantly worried that the Hell's Angels were attempting to find him and do him harm. 16. At this time he also had to do control purchasing of drugs and other, as I said, unlawful property and once again he had to work in control buys where he had to feign he was a drug user or dealer. Mr May would then buy drugs in order to gain evidence to convict the criminals. He said this feeling of paranoia continued and further distanced him from his wife and family. He did not want to discuss the dangerous situations he was in, in case it affected his relationship with his wife. 17. In the 1980's and 1990's he had to deliver extortion monies during the Woolworth's extortion and other extortions attempts. A majority of the exchanges of money would occur in isolated areas where he waited for the offenders to approach him. This was a very frightening experience and he was never sure whether the extortionists were going to kill him and take the money or, what the outcome could be. It was an extremely dangerous and frightening situation. He said he became withdrawn and had scary dreams. He again did not tell his wife of these dreams or what was causing them. 18. In about 1985 Mr May was involved again in undercover work by pretending to be part of a criminal element. However, at the time that this occurred, he also was dismayed to find that he was followed by criminals who had computer printouts with the registration numbers of the different vehicles that he was driving to meetings. He thought that this must have resulted from a corrupt policeman in the force supplying the criminals with the registration numbers and he became very alarmed. He describes himself as becoming paranoid and that he was worried that he would come to harm to himself or his family because of the activities of the police who he believed to be corrupt. 19. He was also from time to time placed in police cells as feigning to be arrested and trying to gather information for the police investigations by overhearing conversations by criminals who were in the police cells. In particular, he was looking for a criminal, in one instance, called Russell Cox. He spent up to 12 hours in the cells with other prisoners. He was approached by a prisoner at one stage who wished to have anal sex with him and he declined but the criminal masturbated himself. He was fearful at the time that he would be recognised by police who were not in the know about these undercover operations and that he would be sexually assaulted or bashed by prisoners. He had dreams at the time of these activities; he does not now in hindsight believe that these paranoid fantasies were factually based. 20. In 1984 he had to go undercover to the bikie races at Mount Panorama to try and establish himself with the hoodlum element . He was there to gather intelligence about firearms and so on. He attended these race meetings from 1984 to 1988 and at these annual races had to stay in their camp which was up on the mountain for four days. He had to also adopt the lifestyle of the bikie gang, drinking to excess, joining in the fights, he was also the object of homosexual approaches by members of the bikie gang and he was able to fight them off. However, in 1985 a very serious riot occurred which involved the police having to try and separate a fight between the bikie gangs. Cars and motorbikes were burnt and in one incident, Mr May had a bottle of American whisky smashed over his head which required several stitches. 21. These violent activities he says caused him emotional concern and he has had flash backs, sleeplessness and nightmares, causing him a loss of appetite. 22. In 1987 the infiltrating of the bikie gang was stopped. During the 1980s he was also involved in a surveillance operation in an extortion attempt by the offender to get money from Coles. During the surveillance operation, the offender was shot by police after an attempt was made to arrest him. He also during the 80's had to follow known criminals and to detect and gather information on their criminal activities for there was a spate of armed robberies on banks, service stations and shops. He did not have any two-way radio contact or he had no or inadequate radio contact and could only make contact with the arresting police by public telephone. 23. In 1990, he commenced surveillance investigating the North Shore Granny Killers in the Mosman area. This involved very long hours of work, 12 - 14 hours a day for a period of six months. He became exhausted and asked for assistance from more police but this was denied. Sometimes he had to work for a full day at a stretch and became tired and angry with his family. During this period also, his wife became so concerned that she contacted the police welfare branch for assistance and counselling. He was restrained from attending his wife and children at this time because of threats he made to his wife and in the end the marriage broke up. 24. He began to drink heavily to anaesthetise himself from his troubles and to forget his past. He moved into a unit at Mosman so that he could keep up his surveillance of the suspects in the granny killer. He had to do various dangerous things, including putting tracking devices on suspect's vehicles. He was not sleeping properly and his weight dropped dramatically. He was particularly disturbed when he was following a suspect who entered a residence and killed an elderly lady and then attempted to kill himself. He was sitting outside the house waiting for the suspect to leave and the suspect was found in the bathtub with an overdose of drugs and the old lady dead with her head bashed in. He blamed himself for the death of the elderly woman because he did not intervene when the suspect was in the house. 25. He has subsequently had dreams and nightmares following this incident with that as a feature. He tried to have a reconciliation with his wife but found that this did not work. He became dissatisfied with the way the police ignored proper work practices and did not properly attend to him as he believed his health was deteriorating. 26. Following this operation, he was transferred from the Surveillance Branch to Task Force Oak, investigating Asian crime and this, he gave evidence, was very demanding and dangerous. It required him to enter gaming houses and brothels and to deliver extortion money. 27. He was also working extremely long hours on the Dr Victor Chang murder, he was disgusted with the ruthlessness he thought of Asian criminals. On several occasions Asians committed armed robberies and viciously assaulted the victims, stole their belongings and left. 28. In November 1994 he requested to be transferred back to ordinary detective work at Cronulla Police Station. He found the work very unsatisfactory. He believes that the other Detectives thought he was some kind of a plant for the police investigation branches. 29. He was back at Taskforce Oaks in 1995. He became very upset and was working in the Gamesman murder. He believes his health became so bad and he had to follow suspects on motor bikes at high speeds and he believes he became ruthless and was not properly in control of himself. He believes he was over worked and was not getting enough sleep, especially during the Christmas period of 1995. Soon after two other policemen were assigned to help him after he complained about the lack of assistance. 30. In March 1996 he was required to appear before the Police Royal Commission. He gave evidence and the evidence he gave is in an exhibit in transcript form. He says that the appearance before the Royal Commission did not particularly worry him. He gave evidence that he has heard nothing from the Royal Commission since that time. 31. On the 5th March 1996 he visited Dr Resnikov who referred him to a psychiatrist, Dr Glass who issued a medical certificate. He applied to the police for rehabilitation and in response the police asked, "Did he want a medical discharge?" He believes he should have had proper rehabilitation. 32. He then applied to the City of Sydney Detectives but he believed that he was to be transferred to uniformed duties in which case those criminals to whom he had appeared as an undercover person, would recognise him and his life would be in danger. He received information that he had been transferred to uniformed duty at Surry Hills (which is in the City of Sydney Police District and includes China Town). He says that made him very depressed and he became frightened, crying and scared and in view of the horrific treatment by Asian criminals of their victims. He thought that suicide would be a better option than being murdered by Asian criminals. He spoke to the police at Surry Hills to see if there was a mistake. He began to think that he was set-up to be killed or injured by his assignment to Surry Hills. 33. On the 12th June, 1996, Dr Strum advised him that he should not be starting any rehabilitation programme nor should he return to work. Witnesses Lay