Morgillo v The Commissioner of Police [2001] NSWCC 99

Compensation Court of New South Wales

CITATION : Morgillo v The Commissioner of Police [2001] NSWCC 99 PARTIES : Antonio Christopher Morgillo The Commissioner of Police MATTER NUMBER(S) : 2606 of 2000 JUDGMENT OF: Hughes J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 19/04/01 EX TEMPORE JUDGMENT DATE : 04/19/2001

FOR APPLICANT: Mr M J McAuley instructed by Walter Madden Jenkins. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr R G H Keller instructed by Court and Legal Services.

JUDGMENT: 1. In this case Antonio Christopher Morgillo by amended application for determination filed on 24 May 2000 seeks to have the determination dated 3 April 2000 from the delegate of the Commissioner in terms of s 10 B(3)a of the Police Regulation (Superannuation) Act 1906 as amended, reversed. "I have decided that the suffering by former Senior Constable Morgillo of the infirmity of major depressive disorder, post-traumatic stress disorder and generalised anxiety disorder as specified in the certificate of the Police Superannuation Advisory Committee dated 9 March 2000 was not caused by the member being hurt on duty". He seeks to have that overturned by inserting the words "was caused by the member being hurt on duty". The respondent, the Commissioner of Police, of course, seeks to have that decision upheld. 2. Mr Morgillo gave his evidence in a straightforward manner. At times he was distressed by the recalling of events. At my suggestion the parties quite properly substituted Exhibit K for oral evidence that Mr Jenkins had prepared as a particular claim - a detail of the activities that Mr Morgillo had performed as an undercover policeman and as a policeman in activities he was performing back in uniform for the period of 1993 to 1995 at Blacktown when there was a domestic dispute that Mr Morgillo found to be distressing. As I say Mr Morgillo gave his evidence in a straightforward manner. I am satisfied that the evidence he gave was truthful. Mrs Morgillo also gave evidence which supported her husband and I find also that her evidence was truthful and reliable. 3. Mr Morgillo after getting his Higher School Certificate shortly after joined the police force, was for a short while in uniform and then a detective. Relevantly, soon after he was assigned to undercover duties with the CIB in which he had to pose as a person other than the policeman, having given evidence of a different identity, different identity cards - even, he said, his own car which he used all the time in order to cement the impression that he was someone other than a policeman. He was involved in very dangerous and life threatening activities, and Mr Keller reminded me what the Court of Appeal have also commented on: that activities of policemen, especially (and I emphasise this) 'undercover' policemen, are capable of causing the illness to which Mr Morgillo has been found to suffer. However, fortunately for the human condition, not all the policemen who perform dangerous, life threatening duties do suffer from that disability; however, my task is to determine Mr Morgillo's admitted psychiatric condition is as a result of the duties that he performed. 4. I have carefully read the medical evidence and the evidence given by Mr and Mrs Morgillo as to the deterioration in Mr Morgillo's mental health. I am satisfied that this case is one in which Mr Morgillo has suffered a psychiatric illness in about 1988 as a result of his undercover work. I am satisfied that the subsequent events in the police force, that he was transferred to a less stressful job - or at least they seemed to be the same kind of duties as far as I could determine - but it was an attempt to have a less stressful job when he was assigned to the North Western District, although he still had to do the same activities, and Mr Morgillo told me he was in the Central Unit before it was separated into separate areas. Mr Morgillo ended up in Parramatta. There were various other episodes which distressed Mr Morgillo in that time - especially being recognised by persons that he had given evidence against. In 1993 and 1995 he was returned to general duties at Blacktown, as I mentioned early, and his having to attend to these domestic disputes further exacerbated what I now find to be an illness to which he had suffered as a result of his police work from about 1988. 5. Coming to that conclusion I rely on such evidence, firstly, that of a handy summary made by Dr Robert Wade who has perused the medical evidence, most of which I have. He first attended a police medical officer so described by Dr Wade on 7 March 1988. That medical officer was Dr Garrard. He was brought in to see Dr Garrard by a fellow policeman and friend, Peter Young. It was at this time or about this time when Mr Morgillo was having domestic troubles with his first wife but I find that the police duties were the dominant cause of the need for Mr Morgillo to seek treatment at that time. I do that because he first saw Dr Garrard on 7 March 1988, Exhibit B, and on 7 March 1988 Dr Garrard notes "will see LMO a psychiatrist, will ring him next day or two" - and he was given the number of the Western Suburbs Crisis Team. On 21 March 1988 he saw the same doctor who had prescribed to him Sinequan, a drug for anxiety. 6. Dr Garrard notes: Has been to local doctor and shown response to Sinequan. More settled now. Wife is in Glen Innes. Seems able to return to work. Appointment made with Ken McCarthy to discuss future plans. Possibly a transfer to other duties would be very important. Fit to resume duties. I infer from the words "possibly a transfer to other duties would be very important" that Dr Garrard at least had formed the opinion that the police duties that he was currently doing were affecting his mental health. Indeed, the evidence - and Mr Keller pointed this out to me - there is no medical report of either Dr Garrard or Dr Scalzo. However, Dr Scalzo was seen at about the same time, I infer, from Exhibit C. Dr Scalzo certified Mr Morgillo unfit for work on 28 February 1988 to 5 March 1988 as he is suffering from OMG or possibly DMG - no-one at the Bar table nor I was able to work out what those initials stood for. However, a subsequent and medical certificate by Dr Scalzo that immediately follows on, that is from 6 March 1988 to 20 March 1988, found him unfit for work as he is suffering from acute depressive anxiety neurosis. 7. Dr Roxanes, a treating doctor gives a summary which I accept and adopt. There is no doubt about the nexus of the Police work undertaken by Mr Morgillo and the subsequent development of his symptoms and diagnosis. As I mentioned above, symptoms first appeared in 1988 when he became extremely depresses, agitated and angry in conjunction with paranoia and withdrawal. He had to take time off work and although he returned to his usual duties this was the seed for the development of further incapacitating symptoms. The Police Psychologist report (Senior Sergeant Jennifer Lette) of 4th October 1995 expresses th opinion that "ultimately I believe that he will be medically discharged". In her extensive letter she describes him as being paranoid, depressed and withdrawn. She found his emotions swinging between crying and anger and showed difficulty in controlling his rage. 8. I am satisfied that Mr Morgillo's mental health was very low at about that time. His work in the police force subsequent to that only exacerbated, accelerated or resulted in the deterioration of his condition. I am satisfied that by the time he last finished work on 7th September 1995 Mr Morgillo was unfit to form his work as a police officer as a result of being hurt on duty. I am satisfied further that the three, or at least the certificate naming three possible diagnoses of his mental illness, that is a major depressive disorder, post-traumatic stress disorder and generalised anxiety disorder - that is to say the diagnosis of three separate conditions - are also as a result of the applicant, Mr Morgillo, being hurt on duty. 9. Therefore, there will be an award for the applicant. 10. The respondent is to pay the applicant's costs. 11. I set aside the order made by the delegate of the Commissioner of the Police that the applicant was not hurt on duty. 12. I certify a second conference in the sum of $250. MR McAULEY instructed by Walter Madden Jenkins appeared for the applicant MR KELLER instructed by Court and Legal Services appeared for the respondent