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 This section came into effect on 1/1/1996 and was repealed on 12/1/1997 and was replaced by the current section 11A which came into effect on 12/1/1997.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 34. The witnesses for the applicant were mainly policemen who testified as to the work the applicant did, the difficulties with the bureaucracy and the poor lines of communication. . There was also evidence of the rather poor system of accounting for overtime before recent changes, the effect of the Wood Royal Commission and the effect of being put back on the beat given that the applicant who had previously worked in the area performing undercover or surveillance duties. Much of the courts time was taken up in distinguishing the latter two tasks but in the end the respondent conceded that there was a blurring of the duties. 35. In addition, the applicant's divorced wife Mrs Lander gave evidence concerning the effect of the police work on the marriage, together with some details of their financial position during the marriage and the dissolution of it. 36. For the respondent there was an attack on the applicant's credit. There was evidence for the differentiation of undercover work and surveillance work, a view of the seriousness of the old system of overtime and the attempt to paint a picture of the applicant's marriage difficulties and related financial questions as being a very important stressor in the applicant's admitted major depression. 37. As I have mentioned, the applicant's evidence was given in a manner that was both matter of fact and convincing. He was, as I mentioned to both Counsel, of necessity an expert liar and had to be in order to survive the very dangerous under cover work that he undertook. Nevertheless, I am not moved by the respondent's submission that I should doubt the credit of the applicant. I have not mentioned all the witnesses by name as many are still involved in undercover work and I have reread their evidence from the transcript. Medical 38. Applicant Dr. Derek Lovell Dr John Robert Strum Dr. Elliott Resnekov 39. Respondent Dr James Patrick Maguire Evidence 40. There was a deal of documentary evidence concerning Mr. May's work from the files of the Police service. Findings 41. I find that the applicant was exposed to many stressors in his life as a policeman, many of which were capable of causing the injury of which he suffers. 42. I find that the applicant was expected to resume duties as a uniformed officer in an area where he had worked as an undercover and surveillance policeman. 43. I find that the accumulation of all the stressors from his work were a substantial cause of the Major Depression from which he suffers. 44. I find that the transfer to a uniform beat in an area where he had previously worked as an undercover and surveillance policeman was in itself a substantial cause of his Major Depression 45. I reject the submission that the appearance before the Wood Royal Commission was a substantial cause of his Major Depression. Reasons 46. The history given on oath indicates a gradual deterioration in the applicant's physical and mental health over the long period he was working in surveillance/undercover work. 47. I have read all the reports of the doctors and I accept the final paragraph of the treating doctor Dr.Strum on 16 June 1999 as being an apt summary of Mr. May's condition: I believe that Mr. May is permanently damaged. I have no doubt, as I have said in my previous reports, that the traumas connected with working as an under-cover police officer have caused (my emphasis) Mr. May to become severely depressed and that the Depressive Illness has lingered. I believe that Mr. May is certainly unfit for police duties. 48. Dr. Lovell interviewed Mr. May on 16th November 1998 and essentially agreed with the treating doctor Dr. Strum. His opinion was 49. Mr. May was frequently vulnerable in dangerous situations. His long work hours led to the demise of his marriage. His profile prior to undercover work was that of a "loner" which made him suitable for the nature of the work. 50. He found the work disorientating and alienating and finally could manage it no longer. He has decompensated with a loss of identity and a Major Depression. I would agree with Dr.Strum that the situation for undercover police is very different to those involved in general duties and I would regard Mr. May's infirmity of Major Depression as being causally (my emphasis) related to his duties as a police officer. I would consider him to have been hurt on duty. 51. Nothing that was asked in direct examination of these two doctors by way of the history or conduct of Mr. May caused these doctors to change their opinions. Nor did anything put to them in cross examination cause them to alter or resile from their opinion. 52. Dr. Glass (11/3/96 to 26/6/96 on six consultations) believed that Mr. May was suffering from Depression that clearly relates to work issues. He also found him fit for duty. This latter opinion was later overtaken by the ruling of the employer that he was incapacitated for police duties. Dr. Maguire (20/11/1996) for the respondent seemed to be equivocal in his opinion. 53. In summary therefore if one accepts Detective Sergeant May's view that his years as an undercover officer have caused him to become depressed then if follows that his mood disorder has been substantially caused by the nature of his work. 54. However, for the reasons discussed in this report, I incline to the view that his depression is a reaction to the disbandment of the surveillance unit and his possible anticipation that this might happen, as he may have known by December 1995, he was going to have to appear before the Royal Commission 55. Much was made in examination and cross examination of the doctor about the police Royal Commission. 56. I reject the submission that the appearance before the Royal Commission caused Mr. May's injury. 57. Firstly, because he said it did not overly concern him and as I said I accept him as a truthful witness. 58. Secondly, the transcript of the commission reveals a relatively minor transgression involving a tow truck spotter's fee that Mr. May did not take part in but failed to report when he was a young probationary constable. The second incident, also many years ago, involved a crediting and taking time in lieu of overtime which was the common practice among detectives who had to work irregular hours. (Inspector Howlatt testified to the common practice and gave evidence that as a result of the Royal Commission a new system of overtime for detectives was introduced.) 59. Thirdly, I can infer that whoever disciplines policemen also regarded these transgressions as relatively minor since no further action was taken and Mr. May was cleared to resume duty. 60. In addition, Dr. Maguire's assumption that the disbandment of the surveillance unit would have affected Mr. May, is hard to place much importance on as Mr. May for many years had been seconded to Task Force Oak. 61. As I mentioned earlier, I accept the diagnosis of the treating doctor Dr. Strum who has had the opportunity of many sessions with Mr. May and has the concurrence of Dr Lovell. I do not accept the opinion of Dr. Maguire. 62. I do not have to decide whether or not s11(A) of the Act applies since I find that the applicant's police duties were a substantial cause to the certified discharge infirmity of Major Depression, using substantial to mean weighty or big and substantial cause to mean real and important. I also take substantial cause to include the weaker factor. 63. In addition, even if the section applied I find that the action of the Respondent in transferring the applicant to uniform beat duties in an area where he had previously worked undercover and in plain clothes, unreasonable. Or to use the words of Ex Detective Inspector Michael Patrick Drury it is a formula for disaster, it is pathetic management, it is just a formula for disaster and I (t) would suggest to me it is management that totally lacks the morality of the welfare by the supervisors of the employee. Judgement 64. Verdict for the applicant. 65. I order that the decision of the delegate of the Commissioner of Police be set aside. 66. I find that the Applicant was hurt on duty. 67. I order that in terms of Section 10B93)(a) of the Police Regulation (Superannuation) Act 1906 the suffering by Mr. May of the infirmity of Major Depression as specified in the Certificate of the Delegate of the Commissioner of Police dated 21 January 1998, is duty related. 68. I order that the Respondent pay the Applicants costs. Mr. P. Dailly instructed by Taylor and Scott appeared on behalf of the Applicant. Mr. M. S. Jacobs QC. With Mr. A. Kostopoulos instructed by the Legal Services Branch appeared on behalf of the respondent. 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.