Industrial Court of New South Wales CITATION: McKenzie v SAS Trustee Corporation [2009] NSWIRComm 177 This decision has been amended. Please see the end of the judgment for a list of the amendments. PARTIES: Anthony Ronald McKenzie (Applicant) SAS Trustee Corporation (Respondent) FILE NUMBER(S): IRC 1746 of 2008 CORAM: Haylen J SUPERANNUATION - appeal - Superannuation Administration Act 1996 - ss 51, 66, 67, 88 - claim for certification of incapability to perform functions of a police officer because of an infirmity of mind at time of resignation - Police Regulation (Superannuation) Act 1996 - ss 1, 10, 10B - retired police officer claims to have been suffering from post-traumatic stress disorder and major depression at time of resignation in 1990 - claim not made until 2006 - whether other life stressors occurring after resignation from Police Service were the cause of disabling condition - no treatment given or diagnosis made at time of resignation - conflicting medical evidence - preponderance of medical evidence favours existence of condition claimed and incapability of performing police duties - appeal upheld - certificate issued CATCHWORDS: PRACTICE AND PROCEDURE - appeal pursuant to s 88 Superannuation Administration Act 1996 - nature of appeal - role of Court on appeal LEGISLATION CITED: Evidence Act 1995 s 140 Police Regulation (Superannuation) Act 1906 ss 10, 10B(2),51, Superannuation Administration Act 1996, ss 5, 40, 67, 88, 88(3), 88(4) Builder's Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 CASES CITED: Gedeon v First State Super Trustee Corporation [2005] NSWIRComm 62 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 SAS Trustee Corporation v Hazlewood [2009] NSWIRComm 157 HEARING DATES: 19 May 2009, 20 May 2009, 4 September 2009, 14 September 2009, 15 September 2009 DATE OF JUDGMENT: 23 October 2009 Mr P O'Rourke of counsel (Applicant) SOLICTIORS: Fitzpatrick Solicitors LEGAL REPRESENTATIVES: Mr T Ower of counsel (Respondent) JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Haylen J Friday, 23 October 2009 Matter No IRC 1746 of 2008 ANTHONY RONALD McKENZIE v SAS TRUSTEE CORPORATION Application by Anthony Ronald McKenzie to appeal against the decision of the SAS Trustee Corporation given on 3.7.2008 JUDGMENT [2009] NSWIRComm 177 BACKGROUND 1 On 12 February 1990 Detective Senior Constable Anthony McKenzie tendered his resignation from the New South Wales Police Service effective from 11 March 1990. His letter of resignation was directed to the Patrol Commander at Armidale. He said in his letter of resignation that he wished to finish his final year of law studies on a full-time basis. 2 Mr McKenzie commenced working as a police officer in April 1979, being posted to the Maroubra police station. In April 1982 Mr McKenzie was transferred to the Detective's branch and assigned to the Darlinghurst police station where he remained until October 1982. Between October 1982 and March 1985 he worked as a Detective at the Randwick police station. From March 1985 he was transferred to the Detectives at Maroubra police station where he stayed until December 1985. Between January 1986 and March 1987 Mr McKenzie performed duties as a Detective at the Rose Bay police station before transferring to Armidale Detectives in March 1987 where he remained until his resignation. 3 In his 11 years' service as a police officer at these locations, Mr McKenzie witnessed many incidents that he said distressed him and ultimately led him to be unable to perform duties as a police officer. In August 1989 he attended his general practitioner for the treatment of stress and anxiety related symptoms. He was unable to attend work on 9 September 1989 because he believed he was suffering from work related stress. From that date until approximately 20 December 1989 Mr McKenzie remained on sick leave and thereafter he appeared to be on annual leave or leave without pay until the date of his resignation in March 1990. In September 1989 Mr McKenzie filed a Hurt on Duty claim and in late November 1989 was directed to attend an examination by Dr J A Roberts, Psychiatrist. 4 After leaving the Police Service, Mr McKenzie continued his legal studies with the Solicitors' Admission Board and in 1991 was admitted as a solicitor of the Supreme Court of New South Wales. Between July 1991 until December 2003, when he ceased practice, Mr McKenzie worked in a number of firms as an employed solicitor and a solicitor in his own right. After ceasing legal practice, Mr McKenzie mostly stayed at home and did not work again. In 2006 he separated from his wife and in 2008 they were divorced. APPLICATION FOR SUPERANNUATION ALLOWANCE 5 On 12 June 2006 Mr McKenzie made application for a superannuation allowance pursuant to the provisions of s 10B(2) of the Police Regulation (Superannuation) Act 1906. In this application Mr McKenzie claimed that he was hurt on duty whilst a police officer suffering post-traumatic stress disorder and depression. He stated that the reasons for his resignation were stress and an inability to cope with police work. 6 In June 2007 the Police Superannuation Advisory Committee declined to issue a Certificate of Incapacity in respect of the claimed infirmities of post-traumatic stress disorder and major depression rendering Mr McKenzie incapable of performing police duties from the date of his resignation. Mr McKenzie then pursued a dispute against that decision before the Disputes Committee. In July 2008 the Disputes Committee, pursuant to s 67 of the Superannuation Administration Act 1996, determined the dispute by confirming the decision of the Police Superannuation Advisory Committee to decline the application. The Disputes Committee provided the following reasons for this determination: 1. Mr McKenzie was able to complete his legal studies and practice for many years as a solicitor immediately after his resignation. . There is no contemporaneous medical evidence that Mr McKenzie was suffering any diagnosable psychiatric condition at the date of his resignation on 11 March 1990 and in fact, the only evidence is to the contrary. 3. Mr McKenzie did not give any history of stress symptoms arising from exposure to traumatic events when he saw Dr Roberts in 1989 which would give rise to a diagnosis of PTSD at the time of resignation. 4. Mr McKenzie failed to disclose to all subsequent medical practitioners who have examined him the Law Society of NSW investigation and subsequent findings which appear to coincide to some extent with the manifestation of his current symptoms. 5. Having regard to the foregoing, it would be unsafe to accept Mr McKenzie's application. APPEAL 7 In September 2008, pursuant to s 88 of the Superannuation Administration Act, Mr McKenzie filed a superannuation appeal in the Industrial Court of New South Wales seeking to overturn the decision of the Disputes Committee made in July 2008. In that document Mr McKenzie said he was appealing against the decision of the SAS Trustee Corporation declining to issue a Certificate of Incapacity in respect of claimed infirmities of post-traumatic stress disorder and major depression on the basis that, at the date of his resignation on 11 March 1990, he was incapable of performing police duties. The grounds of appeal and the orders sought on appeal were as follows: 1. The Respondent erred in its decision not to issue a Certificate of Incapacity in respect of claimed infirmities of post traumatic stress disorder or major depression or both. 2. The Respondent in reaching its decision considered irrelevant matters, namely: (a) That the Applicant was able to complete his legal studies after his resignation from the NSW Police Force. (b) That the Applicant practised as a Solicitor after his resignation from the NSW Police Force. (c) That the Applicant failed to disclose to all subsequent medical practitioners who have examined him, the Law Society of NSW investigation and findings. 3. Medical evidence, both contemporaneous with the resignation and subsequently, show the Applicant to have a psychological symptom complex as at the date of his resignation from the NSW Police Force sufficient to demonstrate that, at the time of his resignation, he was incapable of performing the duties of his office as a police officer either because of post traumatic disorder or major depression or both. 4. The Respondent failed to give any or any sufficient weight to the fact that the Applicant was attending upon general practitioners and a psychiatrist for the treatment of psychological symptoms and was prescribed Benzodiazepine "Frisium" for the treatment of those symptoms. 5. The Respondent failed to give any or any sufficient weight to the opinions of medical practitioners specialising in psychiatry that, at the time of the Applicant's resignation from the NSW Police Force, he was incapable of performing the full duties of his office due to post-traumatic stress disorder and major depressive disorder. The Orders I am seeking are as follows: 1. That the Court determine that the Applicant at the time of this resignation on 11 March 1990 from the NSW Police Force would have been incapable from the infirmity of body or mind (due to post traumatic stress disorder and/or major depression) of discharging the duties of the Applicant's office at the time of his resignation (s 10B(2) Police Regulation (Superannuation) Act 1906 ). 2. The Respondent to pay the Applicant's costs. THE EVIDENCE OF MR AND MRS McKENZIE 8 Mr McKenzie provided an affidavit and in addition gave oral evidence. He was extensively cross-examined. At the time of giving his evidence he was aged 51 and in that evidence Mr McKenzie outlined his progression at different locations through the Police Service. In April 1979 he was a Probationary Constable and a year later became a Constable. In April 1984 he was made a First Class Constable and in April 1988 he became a Senior Constable. In 1984 he was transferred to the Detectives. 9 In his affidavit evidence, Mr McKenzie provided a number of details of accidents and incidents in which he had been involved and how they had affected him. Those incidents were: · In the early hours on Christmas Day 1980 he attended a car accident in which a female passenger's scalp had been sheared off while leaning her head out of the passenger window of the car. The female passenger's head had hit a telegraph pole. Mr McKenzie and another officer attended the scene for approximately one hour. On the next day, after being informed that the female passenger had died, he attended the station and completed a fatal accident incident and breach reports against the driver. He said he found the incident and its aftermath very distressing and the fact that it was Christmas Day made it worse. The incident was generally upsetting and he stayed at the police station, had a few alcoholic drinks and tried to pretend it did not happen. He was not offered counselling or de-briefing and said that, to this day, the image of the accident scene regularly came to mind. The incident was distressing at the time and continued to be distressing when the image was recalled. · In 1981 Mr McKenzie and another officer came across a road accident in which he found a nurse on the road who looked to be badly injured. The nurse appeared to have been the driver of a van and another car had collided with it. Mr McKenzie observed the driver of the other vehicle to be badly injured and unconscious. An ambulance had been called and Mr McKenzie called for additional police assistance. After the ambulance had removed the nurse and the driver of the other vehicle, Mr McKenzie went to the passenger side of the car and noticed a small patch of bloodied hair under the dashboard. On a closer look he saw part of a human head and realised that the passenger had been forced from the passenger seat and under the dashboard by force of the impact. The passenger was alive but badly injured and Mr McKenzie could not release the passenger from the car so police and fire brigade assistance was called. The driver of the car was charged with culpable driving and convicted and again Mr McKenzie did not receive any counselling or de-briefing. He said the incident continued to haunt him. He and his partner were the first to arrive at the scene of a horrific accident. For three or four days after the accident he constantly thought of it, was very upset and lost a lot of sleep. Over time his recollection became less frequent but continued to be vivid. He continued to be haunted because the passenger was discovered under the dashboard when that the car was about to be towed away with the passenger still inside. If that had occurred the car would not have been examined for an extended period and the passenger could have died. · One afternoon in 1981 Mr McKenzie was the observer in a paddy wagon when it was flagged down by a man who indicated that, in a block of units, his grandmother had just chocked to death. Mr McKenzie radioed for an ambulance then followed the man into a block of units where he observed a woman, aged between 60 - 70 years old, l on the floor who appeared to be dead. She was not breathing so Mr McKenzie gave her mouth-to-mouth resuscitation while his partner gave chest compressions. While he was giving mouth-to-mouth resuscitation he vomited into his mouth but was revived and an investigation into the accident resulted in Mr McKenzie and his partner receiving commendations. He did not receive any counselling or de-briefing in relation to this incident and even now, the incident often intruded into his thoughts. · These incidents occurred while Mr McKenzie was at the Maroubra police station. He said that, since the first incident, he had experienced nightmares and they regularly occurred over the years although their frequency had varied. He often experienced his nightmares in a semi-confused state, feeling that the events were real and were actually happening. When he experienced these nightmares he noticed he was often angry, nervous and "touchy". Once awakened by these nightmares he thought more intensely about the incidents and other incidents he had experienced while working as a police officer and he found himself regularly losing sleep as a result. · While stationed at Darlinghurst in 1992, Mr McKenzie and another officer were directed to attend a fire where children had died. During an inspection of the house, after the fire brigade had left, Mr McKenzie discovered the blackened and charred body of a child in a corner of a room. The child had its arm over its face so as to protect itself against the flames and the child had been burnt to death. The government contractor removed the body to the morgue. Mr McKenzie did not receive any counselling or de-briefing following this incident. He said it was a scene he constantly relived and saw it "in his mind's eye" to the present day. The sight of a child's body remained one of the most shocking sights he had even seen. Memories of the child were often triggered by other events such as seeing news reports of the recent Victorian bush fires - that type of report brought back vivid memories of this incident. As a result he had increased nightmares and became moody, angry and depressed. · In 1995, while stationed at Randwick, Mr McKenzie attended a block of units where he found the body of a 19 or 20-year-old female whose head had been "bashed to a pulp" such that her features were unrecognisable. He remained at the unit with his partner for approximately one hour and then they were told to attend the Remand Centre at Long Bay where they were taken to a cell where Mr McKenzie observed the dead body of a prisoner whose face and body was severely bruised. At the goal Mr McKenzie and his partner interviewed a number of witnesses over a period of some hours and were then directed to attend the morgue and witness the autopsy of the murder victim from the block of units. Mr McKenzie attended the morgue and witnessed the dissection of the body. He did not receive any counselling or debriefing after these two homicides. Mr McKenzie's recollection was that these were the first murders he had attended and they were both gruesome scenes and caused him to have increased nightmares. He said that, over time in recalling these incidents, he lost a significant amount of sleep and experienced nightmares. He remembered the incidents constantly and continued to do so up to the present time. He often found himself thinking about those two particular murders. · In December 1985 Mr McKenzie was working at the Maroubra police station when he volunteered to attend the scene of a shooting in a block of units. On arrival he noticed a garage was open and a male person was lying in the driveway in front of the open garage. The deceased's wife and son were standing near the body. Mr McKenzie checked the body on the ground and noticed a chest wound. The person was unconscious but died before the ambulance arrived. Two other detectives arrived who had not been called to the scene by Mr McKenzie. Those officers determined that there had been a suicide with a home made device and they spent sometime in the garage. They told Mr McKenzie and his partner that they could leave the scene. Mr McKenzie had not gone into the garage and was unaware what the home made device consisted of, as referred to by the other officers who had inspected the garage. Mr McKenzie did not receive any counselling or de-briefing after this incident. · In mid-1987 Mr McKenzie was working with the Armidale Detectives. One day, at approximately 9.am, three officers attended at an address to carry out a search pursuant to a search warrant. Mr McKenzie went into one room inside the house and observed a male person in bed, apparently asleep. He went through the room but did not search the bed or the person in it but searched other rooms at the rear of the house. He then returned to the room where the person was in bed, pulled back the bed sheet and told the occupant to get up and then observed that he was holding a rifle. The rifle was raised and pointed directly at Mr McKenzie who immediately grabbed the barrel and fell onto the person and subdued him. The rifle was loaded and the person was arrested with other occupants of the house. Mr McKenzie said the incident haunted him more than any other traumatic incident in which he had been involved. He blamed himself for going through the room in the first instance without checking the person in the bed. He kept thinking that any of the police officers, including himself, could have been killed and that possibility had never left him. He thought about this incident almost every day and thinking about it distressed him. The incident constantly played on his mind and this incident marked the time when he became very worried about being involved with any form of firearms. He did not receive any counselling or de-briefing after this incident. · In 1989 Mr McKenzie was part of the Armidale Special Weapons Group. The Group was called out by the nightshift to a house in Guyra where a male person was holding a hostage in a farmhouse. There were approximately six members of the Special Weapons Group and they had drawn rifles and bulletproof vests from the armoury. They arrived at the farmhouse in the early hours of the morning when it was still dark and put on their bulletproof vests. They received a radio call that the man had left the house and was driving towards them. Half the officers went to the right hand side of the road and the others went to the left hand side and shooting began. In the confusion each group of police were firing at the other in the mistaken belief that they were under fire. Mr McKenzie, however, did fire at the approaching car and disabled it. The person was removed from the car and pinned to the ground and one officer held his rifle to the man's head. The rifle discharged and missed the man's head by approximately two centimetres. Mr McKenzie did not receive any counselling or de-briefing after this incident. · On approximately 3 September 1989 Mr McKenzie attended an incident in Armidale where a heavily intoxicated male offender had assaulted his girlfriend. The offender was armed with a knife and together with other police, Mr McKenzie arrived at the scene where the person held the knife to his own throat and threatened to kill himself. Mr McKenzie was a trained negotiator and he attempted to placate the offender and disarm him. During the course of the negotiations the offender lunged at him with the knife and was ultimately disarmed. However, during this incident Mr McKenzie felt he was "losing it". During the negotiations with the offender he became very upset, nervous and aggressive towards the offender and was unable to concentrate on negotiations. The more aggressive he became towards the offender, the more aggressive the offender became towards the police. He regarded his actions as contrary to negotiating protocols and training. 10 At this time Mr McKenzie said he was having difficulties with a Senior Detective where, in effect, he had been requested to "fudge the figures" in relation to the crime clean-up rate in the Armidale area. He refused this request and that led to difficulties at work in the form of being rostered for the worst shifts and not being able to attend Detective conferences. This action caused him ongoing stress and anxiety. Also, by the time of the September incident, Mr McKenzie said he suffered from a number of physical and psychological symptoms and was having nightmares. The nightmares always involved aspects of his police work and he had difficulty sleeping. He became distressed, upset and nervous at the thought of going to work and regularly vomited at home prior to beginning a shift. By September this had been going on for several months and he was "ruminating about things". He found he was increasingly short tempered and his capacity to concentrate was reduced. He did not want to deal with jobs at work nor deal with members of the public and, without reason, would become angry with members of the public. He avoided going out of the station on jobs and at one time, being the second-in-charge of the Detectives, he was able to allocate jobs to other more junior officers and was able to stay in the station. He regularly ruminated about the events earlier described and was drinking more frequently and more than usual. 11 In approximately August 1989, Mr McKenzie attended his general practitioner, Dr David Breusch, for treatment for his stress and anxiety related symptoms. He was rostered to work on 9 September 1989 but on the prior evening contacted the station and advised that he was suffering from work related stress and would not be attending for his shift. On 14 September 1989 he completed reports of injuries received whilst on duty stating that he had been receiving treatment from his doctor for work related stress and anxiety. The reports further stated that certain events had occurred which had led him to consult and seek medical treatment and noted that his condition had deteriorated and had resulted directly from working in the Armidale station. The nature of the injuries were identified as "stress and anxiety". From 9 September to 20 December 1989 he remained on sick leave and thereafter was on annual leave or leave without pay until he resigned in March 1990. 12 From 9 September 1999 to the date of his resignation, Mr McKenzie continued to experience the symptoms he had earlier described. He stated that, during that time and up until his resignation, he remained totally unfit for the duties of his office and during the same period he continued to see his general practitioner, Dr Breusch. He saw Dr Breusch twice in October 1989 and once in November 1989 and was prescribed the drug "Frisium", a drug he took for some months. At one point Dr Breusch referred Mr McKenzie to a Tamworth psychiatrist, Dr Michael de Groot. He saw Dr de Groot once in approximately October 1989. At about the same time he spoke on the telephone to the Police Medical Officer. Following the submission of his Hurt-on-Duty claim he was directed to attend an examination by Dr J A Roberts, Psychiatrist in late November 1989. In or about February 1990 Mr McKenzie decided to resign from the Police Service and forwarded a letter of resignation to the Armidale Patrol Commander. 13 In his final years as a police officer, Mr McKenzie had commenced part-time study with the Solicitors Admission Board. In 1990 he completed the New South Wales Joint Examination Board Course and the following year was admitted as a solicitor of the Supreme Court of New South Wales. From July 1991 to approximately September 1992 he was employed with an Armidale firm working principally in family law and crime. He did not cope very well with this type of work and he found difficulty concentrating and dealing with clients. From September 1992 to June 1993 Mr McKenzie was employed as a solicitor in Inverell. This practice was also principally involved with family law and some criminal work and again he had difficulty dealing with the work and clients. He had trouble concentrating and was short-tempered. 14 In 1993 Mr McKenzie purchased a solicitor's practice in Coonamble operating with three partners. There were three offices and Mr McKenzie carried on business from the Coonamble office. At the end of 1993 the partnership was reduced to two and at the end of 1994 that partnership was dissolved and Mr McKenzie carried on business from the Coonamble office as a sole practitioner until January 1998. During these years he had an employed solicitor performing family law, criminal law and personal injury work. Mr McKenzie performed probate and conveying work and he described it as work he was "able to deal with more satisfactorily". The work was more procedural and he found it less stressful. 15 From January 1998 to January 2003, Mr McKenzie practised from his home address in Port Macquarie as a solicitor under the name of Tony McKenzie, Lawyer. He carried out conveyancing and also performed some locum work. in Sydney. In 2002 Mr McKenzie spent approximately four months in charge of a property law department of a Newcastle solicitor. When a solicitor decided to go to the Bar, Mr McKenzie was sent approximately 20 personal injury matters and although he looked at the files he did not know what to do with them and asked for the matters to be given to someone else. In approximately January 2003, Mr McKenzie purchased a solicitor's practice and for that year practised under the name of Allen Duggan Associates at Maclean. Again, his area of practice was mainly conveyancing with some family law as well as Road and Traffic Authority prosecutions. At the end of 2003 he ceased practising as a solicitor. 16 In May or June 2005 another solicitor in Taree informed Mr McKenzie that a Receiver had been appointed to his law practice. At the time he was not carrying on practice as a solicitor and said he was not concerned that the Law Society had appointed a Receiver. In approximately July 2005 a person employed by a firm of Receivers informed him that the Receivers were investigating various transactions in which Mr McKenzie had been involved. Prior to this contact he was not aware of Law Society concerns about those transactions. Mr McKenzie did not renew his Practising Certificate in 2005 and at the time of giving evidence the Law Society investigation was still proceeding. In his affidavit Mr McKenzie said his practice as a solicitor and the matters giving rise to the Law Society's investigation did not impact upon his psychological wellbeing, either at the time of his resignation from the Police Service or at any later time. 17 Mr McKenzie gave evidence about the progress of his psychological symptoms. Since leaving the Police Service he continued to experience difficulties dealing with people and lacked concentration. He continued to have nightmares and experienced flashback type episodes to incidents that had occurred during the course of his career as a police officer. He continued to be anxious and tried to avoid contact with people and going to places that were or could be associated with traumatic events. He continued to experience nightmares and sleeping problems and at times drank to excess. 18 From approximately 2003 the symptoms deteriorated: he had difficulty sleeping; avoided all his friends; avoided going to school functions involving his children unless he could not avoid attending; became short tempered with his children over small things; drank to excess, often drinking a bottle of scotch a night; had difficulty concentrating on his work, and, was making mistakes at work. Generally, he felt depressed and did not wish to meet anyone socially. He cried for no apparent reason on a number of occasions. He frequently thought of committing suicide. He had flashbacks to the traumatic incidents he had earlier described in his affidavit and began waking up sweating in the middle of the night. He awoke at 3.00am worrying about things and always felt down and depressed. He felt terrible when getting up in the morning and during the day he only wanted to be alone. He lost all motivation for work. He was permanently worried, felt sick to the stomach and suffered panic attacks. At the end of 2003 he stopped practising as a solicitor and from the end of 2003 remained at home. His psychological health did not improve and the symptoms described above gradually worsened. He spent most of his days in his room with the blinds drawn. By mid-2004 his wife told him there was something wrong with him, he needed a check-up and should see his doctor. 19 On May 10 2004 Mr McKenzie believed he saw a general practitioner, Dr Stephen Young, in relation to his symptoms. He was prescribed medication and saw Dr Young on a number of occasions between August 2004 and October 2004 in relation to those symptoms. In October 2004 Dr Young referred him to Mr Rudd de Bakker, a Clinical Psychologist located at Port Macquarie. His first appointment with Mr de Bakker was in late November 2004 and he saw him approximately ten times between November 2004 and November 2005. 20 In approximately May 2004 Dr Young referred Mr McKenzie to Dr Klaas Akkerman, Psychiatrist of Forster. Between June 2005 and October 2006 Mr McKenzie saw Dr Akkerman approximately 13 times. He described his symptoms and what he was experiencing and at various times Dr Akkerman provided psychotherapy counselling and prescribed anti-depressant medication. 21 Mr McKenzie said that to the present time he remained depressed and lacked interest in doing things and avoided social engagements. He spent most of his time alone at home and separated from his wife in approximately February 2006. He remained with thoughts of suicide and still suffered from nightmares. He regularly ruminated about events he had experienced during the course of his work as a police officer. 22 At the date of his resignation from the Police Force he was a Detective Senior Constable and was a trained police negotiator. At the date of his resignation and for several months prior to that he was suffering psychological symptoms as detailed in his affidavit. Mr McKenzie said these symptoms made him unfit to perform his duties as a Detective Senior Constable prior to and at the time of his resignation. He had problems dealing with members of the public and police officers. He had substantial difficulties with concentration and his capacity to investigate and report on matters and also his ability to obtain and make statements was affected. He avoided work and avoided conflict with members of the public and fellow police officers. He remained very concerned about how he would react in situations of conflict, including arrested suspected criminals. 23 In oral evidence Mr McKenzie dealt in further detail with each of the incidents mentioned above and the impact those incidencts had upon him at the time of their occurrence and how, over the years, they repeated themselves in is mind. Mr McKenzie recalled an incident that occurred when he was initially transferred to Armidale in 1987. While off-duty, he was called to attend a motor vehicle accident where a young Aboriginal boy had crashed into a tree. When he attended the accident it occurred to him that, while working at Maroubra Station in 1981, it was similar to the mistake he had nearly made where a person was partially hidden under the dashboard. In the Armidale incident the body was on the floor of the car and that brought the Maroubra incident immediately to mind and it did not leave his memory from 1987 until the day he resigned. His attendance at that accident triggered his memory of the first accident and he could not get it out of his mind and thought about it constantly. 24 Mr McKenzie said that, from the mid-1980s in relation to the young child he had seen burnt to death in 1982, the scene returned constantly especially when he was investigating a number of fires. It was not a case of thinking about it - that horrific sight kept replaying in his mind even though he would try to shut it out. 25 In relation to the October 1982 incidents when Mr McKenzie was called to attend two murders on the one day, he said he had started the shift at 8.00am and finished at approximately 2.00am. At the end of that extended shift he felt exhausted because on the one day he attended two "horrific, bad murders". In the first murder the girl had been very badly beaten with her head smashed in but the second murder at the goal was equally as bad. After finishing the shift he joined fellow officers at a Kings Cross pub and got "blind drunk" because he had emotionally "had it". In the following days and weeks he felt upset and explained that he had not been exposed in the lead role in any serious investigation, let alone serious murders. At the time he had to get on with the job and if he had shown any sign of weakness it would have been the end of his career. That night he had to attend the morgue to witness the body being dissected and it was a very unpleasant experience. 26 While at Armidale Mr McKenzie said that the role of a Detective in the country area like Armidale was different to a city Detective as there were less resources available and there were fewer uniformed police to whom he could delegate tasks. That meant that he had to do most of the investigating work himself. While at Armidale he took on two additional roles, becoming a member of the Special Weapons Group and a police negotiator. The mid-1987 incident where he was searching premises and a man pointed a loaded rifle at him particularly haunted him more than other traumatic incidents because of his slackness and not following procedure by not searching the man when he first found him: he nearly killed himself and other police officers. That incident continued to play on his mind every day and reminded him of just how close he came to being killed and killing some of his workmates. That incident was one of the reasons he could not sleep and most nights when in bed he continued to think about the incident. Sometimes when watching television and seeing an item about firearms (before he left the Police Service) it would disturb him. As a direct result he began avoiding firearms and went to work without taking his gun. If an issue arose involving firearms he would not respond and would send junior officers. 27 In further elaboration of the siege incident at Guyra, Mr McKenzie explained the circumstances in which an armed man driving a car began shooting at police officers situated on either side of the road and how, in the confusion of the event, the police officers returned fire and some of them were actually firing at each other. He spoke of his fear as bullets were whizzing around him. He also described the action he took in stopping the vehicle by shooting the armed man and while the man was restrained, another officer had discharged an Armalite rifle close to his head. Although the bullet missed, it was fired at very close range and had the capacity to remove the man's head. Mr McKenzie described his feeling after the incident as one of intense fear of being shot and he had not previously been in a situation where he had bullets and shotgun blasts whistling all around him. He had an intense fear and a real horror of what was occurring and was very shaken after the incident. That episode was one of the last serious matters he attended and the circumstances stayed with him from that time onwards. Because of the confusion between police officers it was not a matter they wanted to raise with the SWAT team in Sydney because there was a "big error of judgment" in that incident. Mr McKenzie knew an officer in Army Reserve and made arrangements for that person to give the officers training days to instruct them on what to do in a siege situation. 28 In relation to the September 1989 incident where a drunk man armed with a knife was assaulting his girlfriend, Mr McKenzie said the SWAT team were in attendance. He was not part of that team but had been called in as a negotiator. He had little practical experience as a negotiator but he was aware of the strict protocol and procedure to be followed to get the offenders on side and basically become their friend. He managed to talk his way into the house but then "completely lost it". He then acted in a way that was against every rule for negotiation and became argumentative with the man which was the last thing that should have occurred. Mr McKenzie said he was provoking the man instead of settling him down and when the man came at him with the knife Mr McKenzie retreated from the house and the SWAT team went in to subdue him. That was the last piece of police work he performed. He said that he "lost it" - he had nearly put police lives at risk again by making the man more aggressive and ruined the situation that should have had a good outcome. After that incident Mr McKenzie said he walked away saying that he could never do police work again. 29 During his time at Armidale Mr McKenzie had come into conflict with the head detective who had directed him to misrepresent the crime clean-up rate which Mr McKenzie knew was illegal and contrary to police regulations. He told the head detective that he would not do what was asked of him but the head detective proceeded to make life very difficult for him. The head detective would allocate jobs and Mr McKenzie was given jobs that nobody else wanted. The head detective made sure Mr McKenzie worked Friday and Saturday nights and if there was a Detectives' Conference to be held, he was made to stay back and clean up while the others went out and partied. He said the head detective made sure his life was not a happy one. That situation continued until the day he left. Because of this situation he hated to attend work because he knew the head detective was going to make working life difficult for him. It was at this time that he began vomiting before going to work and he would avoid work when the head detective was present. The shifts were organised such that they did not coincide so hopefully for eight days in a fortnight, Mr McKenzie would not have to see the head detective. The head detective continually complained to the District Office in Tamworth that Mr McKenzie was not pulling his weight. 30 From the end of 1988 and until he left in 1990, all these incidents in which he was involved came back to him and he began having serious trouble sleeping. He was physically sick before going to work and had trouble concentrating with paperwork. He ended up with 100 miscellaneous major files with exhibits that had not been entered and he just kept ignoring them and hoping they would go away. Mr McKenzie said that, as a young detective, he regarded himself as having a knack of talking to offenders and getting them on side but during 1989 he found he could not talk to offenders and get them onside, was unable to elicit information from them and was losing his people skills. He also lost his ability to deal with victims and told some of the victims to sort out their own problems. This happened throughout 1989 when he was second-in-charge. He would delegate jobs to others and avoid going out to see victims and defendants. He was avoiding them because he was too nervous and did not want to talk to anybody about police work. He reached the point where he began to hate the police because of how it was making him feel. 31 In relation to his sleep difficulties, Mr McKenzie said he just could not get to sleep and would lie in bed thinking about all the incidents and replaying them in his mind. He would get up at 2.00am or 3.00am knowing he had to be up again at 6.00am to start work and to get himself to sleep he began drinking again. His vomiting in the morning occurred before he began his 8.00am shift. He hated the thought of going to the station. That continued through the second half of 1989 right up until he left and even after he left the Police Service in 1990. 32 In August 1989, because of the way he was feeling, he saw Dr Breusch. Dr Breusch was the Government Medical Officer and Mr McKenzie thought he should see him. At that time he was upset and nervous about going to work and he was becoming very short-tempered at home and with other police officers. He was withdrawing from mixing with other police, including the Detectives, although in a country town police tended to socialise together. He was short-tempered and his concentration was reduced. He was not doing any of his paperwork nor was he finishing briefs for Court. On one occasion he took sick leave rather than go to Court and had another officer deal with the case for him - he was just avoiding going out on jobs. The further the year advanced in 1989 the more problems Mr McKenzie said he was having, especially with lack of concentration, not doing his paperwork, not sleeping and his vomiting attacks were increasing. He reached the point of seeing Dr Breusch because could not handle it any more. He felt he had to do something about what was going on in his life. At some stage he began seeing Dr de Groot in Tamworth who was a psychiatrist and he gave Mr McKenzie Frisium tablets. He did not get any relief from them. He had seen Dr Breusch several months before he resigned and felt he was not getting any better. 33 When he was rostered for duty on 9 September 1989 Mr McKenzie felt a build up of pressure until he made the telephone call saying he would not go into work. He was thinking he could not do the work and he was getting himself into such a state he could not face going back to police work. He was vomiting again, he was upset and shaking and in the end told himself he had to make the call as he could not face doing the work. On 14 September 1989 he completed a report of sickness or injury on duty and completed two forms in almost identical terms but Mr McKenzie said he did not know why he filled out two forms. His sick leave ran out on approximately 20 September 1989 and therefore he remained off work until he resigned either on leave, without pay or annual leave. 34 Mr McKenzie was asked why he made no mention of these difficulties in his letter of resignation: he replied that he had severe problems all through 1989 and he thought if he walked away from police work, all those problems would disappear and it would all be finished. At the time of his resignation he had been undertaking studies for several years with the Solicitors Admission Board. It took him one six-month semester to complete the course and if all went according to plan, he would finish the Diploma by September 1990. There was nothing he could have done by resigning in March 1990 to finish the course more quickly. When he resigned he had no other employment arrangements. Having completed the Solicitors Admission Board course late in 1990, he was then required to attend the College of Law and was ultimately admitted as a Solicitor of the Supreme Court of New South Wales in June 1991. 35 On the final day of his employment in March 1990, Mr McKenzie said he felt "at rock bottom". He said he could not face police work anymore and he was seriously affected by the incidents that had occurred over the years. Things that happened nine to ten years earlier were affecting him and it was bad for his wife and family and he was also drinking too much. He had withdrawn from all his friends and had nothing to do with them and he could not do police work anymore. He stayed away from firearms, he could not interview people, victims or offenders and only went to work because he had to. In relation to police work he had completely lost his grip and he just could not face police work any more. That was also true of his paperwork. He had a build-up of files and was not attending to any paperwork, court briefs or anything. When he mentioned the College of Law studies in his letter of resignation, Mr McKenzie said he did so because the Police Regulations stated that when he resigned he had to state a reason. 36 He had met his wife-to-be in approximately 1989 and they went out for a number of months before commencing to live together and continued to do so until his resignation. He was married on 3 February 1990 after he was off on sick leave and while on leave without pay or annual leave. They went to Yamba for three or four days following the wedding and Mr McKenzie described those three days as being good as he had only just married and they spent the days sitting on the beach. 37 After leaving the Police Service and commencing legal practice, Mr McKenzie said he initially had a great feeling of relief that it was all over but it started slowly coming back again although not as chronic as it later became. He still had not overcome the symptoms he had before he left the Police Service. He thought the cure would be working away from the Police Service but that did not happen and the suffering and symptoms he had described remained with him. A great load had been lifted from his shoulders when he resigned and finished his studies. The six months at the College of Law was not challenging and was "fairly easy" but he had not lost all the symptoms and the events continued to recur. 38 After his resignation and during the 1990s, Mr McKenzie did not seek any treatment for his psychological symptoms until approximately May 2004 and thereafter. In 2003 Mr McKenzie said he felt his life was starting to spiral out of control, his concentration was a real difficulty and he was arguing with his children for no reason, becoming very angry and then acting nicely. The children did not know where they stood and in order to sleep at night he again began drinking to excess. During 2003 he said he reached the same point he was at with the police 1989: he had clients coming in and he was telling them to go away and sort out their own problems. He was letting the legal practice run down and was virtually closing the practice at lunchtime. In 2003, when it got to that point, he finished practising as a solicitor and stayed home for months. He did not do anything or go anywhere and that is when his wife told him that there was something wrong and he should see a doctor. It was at this point that it all jelled for him and he consulted Dr Young and was referred to Mr de Bakker, a psychologist. He was treated by Mr de Bakker and saw him approximately ten times between November 2004 and November 2005. 39 Dr Young had told him that he thought Mr McKenzie may have some depression issues and was therefore sending him to a psychologist. The Government had a free ten-week programme for people in his situation. Mr McKenzie completed that programme with Mr de Bakker who then recommended a further programme. During that period Mr de Bakker spoke to Mr McKenzie about different issues and raised the possibility of post-traumatic issues and was referred to Dr Akkerman. When Mr McKenzie first saw Dr Young he was prescribed a sleeping tablet called Temaze because at that time he was having tremendous difficulty sleeping. He was also given sample packs of anti-depressants and for some time he was taking Mozon. The difficulty he then had with sleep was going to bed and finding he was doing police work all over again and just could not sleep - he would be lying there until 2.00am or 3.00am in the morning. Dr Young also placed Mr McKenzie on Luvox which he understood to be an anti-depressant. He had explained his symptoms, what he was experiencing and feeling and had told Dr Young the truth about these matters. 40 On 13 occasions between June 2005 and October 2006 Mr McKenzie saw a psychiatrist, Dr Akkerman He told Dr Akkerman what was wrong with him and what difficulties he was experiencing and there was a change of anti-depressant medication to Avanza. Mr McKenzie said he was now taking three Avana at night and one Effexor. He was still taking three Temaze tablets at night - taking two when he went to bed and he would take a third tablet when he woke up at 3.00am worrying about things and past incidents. He separated from his wife in February 2007 and the divorce was made absolute in May 2008. 41 Through the 1990s and up until December 2003, Mr McKenzie continued practice as a solicitor. In December 2003 or early January 2004 he sold the Maclean practice. He kept a Practising Certificate to finish off an estate matter and dealt with a small number of conveyances for a friend who was a builder but his Practising Certificate, however, was not renewed after June 2005. In mid-2005 Mr McKenzie was contacted by Mr Mitchell on behalf of the Law Society who wished to discuss certain transactions that had occurred during 2004. Those matters related to an estate, a matter in which Mr McKenzie first took instructions in 1998. Mr Mitchell raised the matter of certain transfers from the trust account dated back to August 2002. A number of transactions after that date were also raised with Mr McKenzie. It was not until Mr Mitchell contacted Mr McKenzie in mid-2005 that he was aware of any interest by the Law Society. Prior to that conversation Mr McKenzie had not been anxious about the estate transactions and did not regard concerns about the estate had affected his psychological wellbeing. The matter remained under investigation. In February 2000 a further matter relating to a loan evidenced by a Deed was raised with the Legal Services Commissioner and that was resolved amicably some year or two later. Mr McKenzie did not perceive those dealings as impinging on his psychological state and said the nightmares were attributed to the police matters and he never had concerns or worries about the Law Society matters. The nightmares relating to his work as a police officer recurred during the 1990s up until the present time and had never left him. 42 In cross-examination, Mr McKenzie said that he learned from his sister about his ability to make a claim under the Police Regulations (Superannuation) Act: she was a serving police officer some years ago and was discharged with a back injury caused by dropping a typewriter. His sister was married to the officer in charge of the Police Welfare branch who had told her that police might claim, sometimes years later after being processed, so she passed that information on to Mr McKenzie. Mr McKenzie then got in touch with the SAS Trustee Corporation and asked them to send him information. Mr McKenzie said he first became aware of the term post-traumatic stress disorder when Mr de Bakker told him he was being referred to Dr Akkerman because he might be suffering a post-traumatic distress disorder. 43 It was accepted by Mr McKenzie that, up until 1989, his leave record showed that he had no cause to take time off as a police officer due to any emotional upsets. In September 1989 he began a period of sick leave on the basis of stress. 44 While Mr McKenzie accepted that he felt uncomfortable going to work and that he was greatly concerned by the pressure of the head detective over the crime clean-up figures, he denied he hated the job because of that incident. He had started vomiting before going to work not because of the problem of confronting the head detective but in 1989 he was feeling that way. The vomiting was most severe at the end of 1989 and probably for the last four to five months of 1989 but was occurring prior to the middle of 1989. He saw Dr Breusch about that problem in August 1989 and by that time the head detective had asked him to fudge the crime figures and Mr McKenzie perceived it as part of the problem. The two injury reports made while on duty referred to work related stress and anxiety and certain events that had occurred leading him to seek medical treatment. This referred to all the incidents he had observed as well as the difficulties with the head detective but they did not mention anything about the traumatic incidents, flashbacks or nightmares. Although his memory of what he told Dr Breusch was not totally clear, he believed he mentioned all the incidents as well as the difficulties with the head detective. 45 The claim for Hurt-on-Duty and seeking special sick leave from 9 September 1989 onwards was refused and Mr McKenzie was aware of that result. He thought, however, that he was being paid up to the date of resignation and his Hurt-on-Duty and claim for special sick leave was supported by three medical certificates from Dr Breusch. He received no further medical certificates from Dr Breusch after the end of November 1989. 46 In the three months thereafter and before his resignation, Mr McKenzie believed that he was emotionally damaged and he could not face police work. It was his belief that this condition was related to psychological damage that happened to him over the years as a police officer but over that three-month period he did not submit a medical or retirement claim. He denied not seeking a medical discharge because he thought he would be unsuccessful and he had never enquired into the details of medical discharge because all he wanted to do was leave the Police Service. He could not recall telling Dr Roberts in November 1989 that the only way out of his current situation was to resign but he was not after a pension and in the past he had wished for a career in the Police Service. 47 Mr McKenzie had gone on sick leave after his Solicitors Admission Board examinations in September 1989, his last examination being the night after the siege at Guyra. By the beginning of 1990 he had not stopped seeing Dr Breusch as he was the family doctor and was seeing him continuously until three years later when Mr McKenzie left Armidale. However, after late 1989 he did not ask Dr Breusch for any more medical reports. Mr McKenzie rated the Guyra incident as being very important and in close proximity to the time he left the Police Service. When he submitted his statutory declaration to the SAS Trustee Corporation there was no mention of the September 1989 Guyra incident. Mr McKenzie denied that, at the end of 1989, the things bothering him involved the head detective. 48 As at November 1989, Mr McKenzie was of the view that he could not do a great deal as a police officer yet he had told Dr Roberts that the effect of his condition in terms of what he could and could not do was that there was not a great deal he could not do and that it did not affect him a great deal. Mr McKenzie agreed that, by reference to his 1989 sick leave record, there was little reference to taking any stress leave but there were times when, because he did not want to go to work, he went on sick leave. Mr McKenzie also accepted that he mixed socially and enjoyed himself at his wedding and that was shortly before he resigned. It was a happy time in his life. 49 Studying law was not a new career path and Mr McKenzie undertook that study so he could gain promotion within the Police Service. He did not see the head detective and the bad relationship as preventing his promotion. He told Dr Roberts that, because he had submitted a report about his superior and although his superior did not know about the report, he had formed the view that he had no future in the Police Service. He accepted that his wife had never liked him being in the Police Service. 50 It was put to Mr McKenzie that, as at November 1989, he was not having any incapacitating symptoms of an emotional or psychiatric nature but he denied that proposition and asserted that the way he felt reflected these problems. He knew what he was suffering and going through. When he spoke to Dr Roberts he had made enquiries of other officers and was told that Dr Roberts was a gun for hire and he would get no relief for his Hurt-on-Duty claim. Thereafter, Mr McKenzie said there was no point in telling Dr Roberts about all his problems and that was the attitude he took into the consultation. He was not there for assessment or treatment. At the time of the first consultation with Dr Roberts, Mr McKenzie said he did have a problem with his concentration and his energy and interests were impaired. He was not attending to his paperwork as a Detective and he was not properly interviewing suspects - there were nearly 100 files that he had not attended to. 51 In relation to his resignation, Mr McKenzie said initially it only contained one sentence stating that he wished to tender his resignation effective from 11 March 1990. He was advised by another police officer that he had to provide a reason for leaving. When given that information Mr McKenzie said he put the document back into the typewriter and put in another reason, namely, that he wished to complete his final year of law studies on a full-time basis. In fact, that is what he did. That document was not accurate because he did not mention having concentration problems, flashbacks, nightmares and vomiting or that he was unable to perform his duties. 52 Between May 1990 and September 1990 Mr McKenzie did not seek any medical treatment. Although recently married and his wife was pregnant, he denied it was a fairly happy period in his life. Between September 1990 and undertaking study at the College of Law in January 1991, Mr McKenzie stayed at home. His first child to his then wife was born in early November 1990 and he was spending time with his wife and new child but denied that this was a happy period in his life. 53 From July 1991 Mr McKenzie obtained work with an Armidale firm of solicitors. During his employment with that firm he did take time off for emotional upsets but did not seek any medical treatment although he felt impaired in some way and was still having problems. In 1993 he had purchased a practice in Coonamble and socialised with his wife and tried to make friends. He did not think he was socialising twice a week but more like once a fortnight. He became the Treasurer of the Jockey Club because nobody else wanted the job. He denied that he was happy and doing well in Coonamble. He was unhappy because he could not handle the work and therefore did not like it and it had started to slide downhill within six months of purchasing the practice. By 1998 Mr McKenzie's money worries led him to file for bankruptcy but he denied that the status of bankruptcy worried him. He then moved to Port Macquarie and worked from home doing mainly locum work after he had decided that he did not wish to go back into a legal practice with a full office staff. He took some matters with him, including a matter of some complexity regarding the estate of Campbell, but he denied that difficulties associated with that matter caused him any concern. He did not suffer any emotional upset because of that matter. He found working as a locum easy work and was able to handle it. He did have one issue of competence in approximately 1996 - 1997 where he did not properly complete a lease leading to an $80,000 Law Cover claim. In an estate matter he sold the wrong shares leading to a large claim being made in relation to that matter. There was also a further issue about the lease of a hotel at Coonamble and these were examples of his lack of concentration. In February 2002, Mr McKenzie had supplied a very detailed reply to the Legal Services Commissioner concerning a complaint lodged against him. There was nothing in the reply to indicate he was having difficulty concentrating or that he had any emotional or psychiatric problems, 54 In 2002 when he moved to Port Macquarie, Mr McKenzie denied that he had a busy practice - he was doing locum work and had to travel to perform the work. At that time there was participation in many school activities with a lot of socialising and making new friends but he denied it was a happy time in his life because he was still having "massive" problems. He said he was cruel to the children and was still having problems associated with his previous police work and he could not get away from them. He said he was not socialising once or twice a week. He did not realise the gravity of his problems but he knew he was not happy. It was only when his wife told him that there were serious problems that he sought medical advice. He did not realise that they extended to serious psychological problems. 55 In January 2003, he bought the Maclean practice while still living in Port Macquarie. He was working three days per week but approximately mid-way through 2003 it became apparent that this venture would not work. At about the same time his mood markedly deteriorated and his mental health was in a serious decline from mid-2003. Up until then he had been able to do the work but in the early part of 2003 he was unhappy about the practice. He denied telling Dr Roberts in 2008 that the practice was "fantastic". It was a practice that did not require a great deal of legal work and was strictly a conveyancing practice where a secretary did everything and he would turn up and "go through the motions". There was another professional complaint arising from a lease but he denied that was a source of worry to him. 56 Mr McKenzie first consulted Dr Young in mid-May 2004 because he was having psychiatric problems and was prescribed some tablets. He told Dr Young about the problems he was having and that they were much more severe than before mid-2003. In November 2004 he was sent to see Mr Rudd de Bakker, a psychologist. The treatment he received from Mr de Bakker did not assist him at all. 57 Mr McKenzie denied that any issue arising out of his legal practice caused him worry or concern. In 2005 he was unexpectedly interviewed about his Trust accounts and an Inspector examined his books and in July 2005 he did not renew his practising certificate. Mr de Bakker referred him to Dr Akkerman. On his first visit to Dr Akkerman he did not tell him about any problems with the legal practice because he had no concerns about those problems. Mr McKenzie's view was that the practice was fine but he could not cope with the work. Mr McKenzie accepted that he could not explain why he had such a significant deterioration in mid-2003. He was having some financial difficulties about a home loan in 2005 and when he saw Dr Akkerman in mid-2005, he said he felt his life was spiralling out of control. He also told Dr Akkerman that his symptoms had been present for four or five years meaning they commenced in approximately 2000 - 2001. He was now saying that his symptoms commenced earlier than that, in 1989. He did not mention that date to Dr Akkerman. Mr McKenzie had not mentioned professional complaints about his legal practice or his bankruptcy when he saw Dr Akkerman because the only things on his mind were the problems he was having with police work. 58 Mr McKenzie said he had frequent flashbacks about the incidents that occurred during his police career and by mid-2003 he was having suicidal thoughts. Mr McKenzie had commenced proceedings in the Supreme Court and although a number of incidents occurring during his service as a police officer were mentioned, there was no reference to the September 1989 incident in which he acted as a negotiator. He accepted that was a dramatic incident that upset him and was the reason he decided never to go back to police work but he had no explanation why that event was not part of his Statement of Claim. 59 At one point Mr McKenzie had written to Dr Akkerman asking him to consider a diagnosis of his condition as post-traumatic disorder rather than depression but Mr McKenzie could not recall why he did that. It was Mr de Bakker who first told Mr McKenzie he might be suffering from post-traumatic stress and that Mr McKenzie satisfied the criteria for that condition. 60 Mr McKenzie accepted that his family and professional life in the early days at Port Macquarie were satisfactory but he did not regard himself as working hard although he was capable of performing work as a solicitor. The Maclean practice he had purchased was not very big but in 2003 it provided him with an income. Things were wrong leading up to 2003 but it started to go seriously wrong from then onwards. In the early part of 2003 there were no problems with work, the practice just "kicked along" and he was functioning as a solicitor. Although he was unhappy things were functioning in a satisfactory sense with married life, family and professionally. After the sale of the Maclean practice and after Christmas 2004, Mr McKenzie became involved in importing marble. He imported one load of marble, set up a business account but the venture lost money. 61 Mr McKenzie agreed that, since 1989, although he had a list of difficulties previously mentioned including flashbacks, sleeping problems and excessive drinking, he did not seek any medical treatment for these problems from the end of 1989 to 2004. Mr McKenzie said he did not think he had the problems that he actually had and did not understand the diagnosis that he subsequently received. He disagreed that the symptoms were not serious and that was the explanation for not seeking medical treatment. 62 Mr McKenzie understood that he was being seen by Dr Roberts in late 1989 in relation to his own Hurt-on-Duty claim. That claim was later rejected. He did not take action to pursue that claim but decided that he would leave the Police Service because of the problems. He rejected the suggestion that he did not have any problems at that time which incapacitated him for work. He did have a problem with the head detective and he told Dr Delaforce that the problem with the head detective was the catalyst for him leaving - he did not say it was the 3 September 1989 incident. Nevertheless, the 3 September 1989 incident was when he decided he would never return to police work. He did tell Dr Breush that problems with the head detective were very important to his Hurt-on-Duty claim. 63 Mrs Tania McKenzie, the former wife of Mr McKenzie, provided an affidavit for the purposes of these proceedings. She first met Mr McKenzie in June 1988 in Armidale and her first impression was that he was a very sociable, outgoing type of person, very compassionate and considerate of those he knew and had an ability to relate well with people from all types of backgrounds, either in the course of his job or socially. They lived together from approximately September 1988. In the early years of their relationship they went out socially once or twice per week, mostly involving meeting other police friends or socialising with her work colleagues. There were visits to Mrs McKenzie's parents in Glenn Innes. Mr McKenzie was charming and very personable, appeared at ease with people and readily engaged in conversation. They were married in February 1990. 64 In late 1989 and early 1990 Mr McKenzie took sick leave from the Police Service. He did not talk to her about what he did at work but he was not as easy going as usual. He told her he was under great pressure at work and he was not feeling at all well. During the six months before he left the Police Service he appeared "very highly strung" and was drinking more than usual. He would drink to excess two to three times per week, often to the point of passing out and was very moody and short tempered. Once he left the Police Service he was more relaxed and reduced his drinking. 65 After Mr McKenzie left the Police Service in March 1990, he qualified as a solicitor in 1991 and from July 1991 worked for a firm of solicitors in Armidale. During this time he appeared to be enjoying his new profession and they socialised approximately once a week with his friends. After their first child was born in November 1990, they did not socialise as much but still went out "frequently". While in Armidale they made a number of new friends. Their second child was born in mid-June 1992 and in September 1992 Mr McKenzie took up a position with solicitors in Inverell. It was hoped that he would become a partner in the firm and that the family would follow him to Inverell. In the meantime they remained in Armidale with Mrs McKenzie working full-time with two young children. Mr McKenzie came home to Armidale every weekend or every second weekend and they did not go out much when he was home. 66 In 1993 Mr McKenzie purchased a practice in Coonamble and he moved there in either May or June 1993. Approximately one month later Mrs McKenzie moved to Coonamble with their two children and they purchased a house shortly after their arrival. Mr McKenzie joined the Coonamble Jockey Club and in the early years appeared to be enjoying his work and they made a number of friends and went out socially "a lot". Mr McKenzie appeared to enjoy the lifestyle and the company of people they had come to know very well. They were both quite active in the community and were involved in their children's pre-school and school. Everyone knew each other in such a small community and Mr McKenzie was working and mixing socially with his clients and seemed to thrive on the work and challenge it offered. Their third child was born in June 1994. 67 After approximately three years in Coonamble, Mr McKenzie began to change and did not appear as relaxed. He drank excessively at home. Since they first met, Mr McKenzie was a regular drinker and would drink at least twice a week but by 1996 he started to go out more often and frequently came home very intoxicated. He also appeared to be very dissatisfied with Coonamble and with the people and did not want to mix with their friends. He used to say he hated it and did not want to be in Coonamble anymore. He reduced the amount of work he was performing and stopped doing work after hours. In the early years at Coonamble he performed a lot of work after hours and was very generous with his time, offering to seeing clients at their home or at Mr McKenzie's home if that was more convenient for them. He then became withdrawn from people and preferred to stay at home rather than go out and socialise. He used to say to her that he did not want to go out to work or have to face anybody on a particular day and did not want to deal with people. He did not want to have to deal with anything. He also appeared to become paranoid and told her that, if someone knocked on the door or the telephone rang, she was not to answer it on the basis that it might be somebody he had locked up and had found out where he now lived and was coming after the family. 68 By the end of 1996 and the beginning of 1997 Mr McKenzie was becoming increasingly "hateful" of the town and the people and he put pressure on Mrs McKenzie to leave. She was in no hurry to leave Coonamble but Mr McKenzie decided to move to Port Macquarie and in January 1988 they did move to Port Macquarie. The family left Coonamble without saying goodbye to many good friends because Mr McKenzie wanted to leave as soon as possible saying that he had enough of Coonamble and he just wanted to get out of there. 69 In Port Macquarie, Mr McKenzie carried on practice as a solicitor from their home address and Mrs McKenzie assisted as his secretary in the practice. After moving to Port Macquarie his mood appeared to improve significantly and he became more outgoing. They were again more active in children's pre-school and school activities because he wanted to make good friends and have a good life. They made a lot of new friends and enjoyed the process and socialised a lot, about once or twice a week and this pattern continued until early 2003. From that time Mr McKenzie's mood appeared to become depressed and he became more impatient and intolerant of the children. He became very moody and they would never know if the day was to be a happy day for him or a quite, sullen day. He became withdrawn from people, drank to excess at home on two or three nights per week and his mood steadily deteriorated throughout 2003. At the end of 2003 and early 2004, Mr McKenzie would tell her that he did not want to see or talk to anybody, that he was sick of dealing with people, dealing with telephone calls and dealing with other peoples problems. 70 Over the years since late 2003, Mr McKenzie did not improve. He again drank more often at home and on the odd occasion that they did go out, he would drink to excess and continue to drink at home until he passed out. Once or twice a week, at the very least, he drank until he became unconscious. He became very unsociable and refused to go out socially unless absolutely necessary. He would attend functions for the children if that was necessary or she insisted that he attend. On one occasion at an end of year concert, he drank to the point that his daughter said that he was embarrassing and had asked Mrs McKenzie why he drank so much. 71 Over the past few years the children had commented on how Mr McKenzie had been cranky and angry all the time and they asked why he drank so much. He did not like to help at school functions as he had done previously and she observed that he was no longer able to hold a conversation with any of their friends. At a barbeque she observed Mr McKenzie walk away from people and stand by himself. It was obvious to her, by his mannerisms, that he was very uncomfortable in the company of other people and appeared to want to go home. He would stand or sit by himself and gaze into space or actually move away from the group. When friends directed conversation to him, sometimes she would have to get his attention and repeat the conversation because he had not been listening. When she asked him about his apparent rudeness, he would say that he did not find the conversation very interesting and did not appear interested in what others had to say whereas previously he had been so personable. 72 While Mr McKenzie was at home, he would keep the doors and the blinds closed so that he could not see out and no one could see inside the house. He told here that if it was up to him he would keep the house in darkness all the time because he felt safe and he would not have to deal with anyone. Mrs McKenzie said that her husband's depressed mood, his continuous drinking and being short tempered with the children eventually placed so much strain on the marriage that she decided to separate. They separated in February 2007 and divorced in May 2008. 73 Mrs McKenzie gave oral evidence. Mrs McKenzie said that, in late 1989 and 1990, she observed him to become more withdrawn and seemed much more distressed. She described him as appearing to have the weight of world on his shoulders and he was quite aggressive, appeared uneasy and was short tempered a lot of the time. In late 1989, early 1990, he started going to bed much later than usual. With the changes of location over the years there seemed to be a cycle - after the move he would improve but after a while he would return to his old ways. When she challenged him about his behaviour he told her that he could not face people any more and could not deal with them and he was concerned that incidents from his past were going to catch up with him. He did not know whether, when walking down the street, he may come across somebody he had contact with while a police officer. In the early days of their relationship he would not tell her very much about his work as a police officer. He used to say that he was not proud of a lot of things that had gone on and what he had seen as a police officer or things he had observed others doing and was really concerned that some of those things would come back and catch up with him. 74 In cross-examination Mrs McKenzie said that her husband was still personable when they were in Armidale in 1988 and 1989 and that continued when they moved to Coonamble in the early stages. Things seemed to change between 1996 and 1998. At that stage there were only minor family financial worries. Mr McKenzie declared himself bankrupt in 1998 and she thought it was possible he was under financial stress at the time but he did not talk much to her about that matter. She had encouraged him to leave the Police Service and when he resigned, he pursued his legal studies. She regard the first three or four years of their marriage as being a happy time and her husband appeared to be happy with what he was doing. That changed in the latter part of their stay in Coonamble. She did not regard his discharge from bankruptcy in 2001 as being a great relief and they just seemed to "flow on". Between 2001 and 2003 she observed that things appeared to be going well with the family and at work for Mr McKenzie and he did not complaint about not being able to concentrate or do his work. He was unhappy about being away from home and servicing the Maclean practice and he did not particularly like doing law any more but it was just a means of supporting the family. That changed in the latter part of 2003 with her husband's emotional stability deteriorating. In 2004 she advised him to see a doctor because of these changes. The changes that occurred between 2003 and 2004 were not of the same degree that she had seen before. At that stage he was having nightmares and he told her about them. He had not told her about nightmares before that but he had been protective of her throughout their relationship and only told her of things he thought she should know. 75 In April 2004, Mr McKenzie became involved in an importing business, importing marble, but that business did not last very long. Initially, he was enthusiastic about the business and thought he could make money out of it but he was not terribly disappointed when it did not work out. Mr McKenzie was not disappointed when the Maclean practice did not meet his expectations because ultimately they did not see that as a place to take the children. Her husband was happy enough to sell that practice. There had been some money worries during 2005 and 2006 and her husband was concerned about the welfare of his family. At this stage Mr McKenzie did not tell her whether his money worries were more significant than at other times during their marriage but he did not tell her much about what was going on. At the time of his resignation from the Police Service, she knew he was having issues with his superior officer at the Station but he did not tell her a lot about the issues. He did not tell her about anything else that was worrying him at that stage. Mr McKenzie told her that he thought his career was over because of complaints he had made about his superior officer. She thought there were "a lot of issues" that prompted his resignation and guessed that was one of them. MEDICAL EVIDENCE 76 Dr Nikolaas Ackkerman is a specialist psychiatrist practicing in Forster. Dr Akkerman had seen Mr McKenzie on 39 occasions between 22 June 2005 and August 2009. He provided nine medical reports concerning Mr McKenzie. In June 2005, he reported to Dr Young (the referring general practitioner) that Mr McKenzie had told him that he had been a police officer between 1979 and 1990 when he resigned and he then worked as a solicitor until approximately two or three years ago. Mr McKenzie advised him that he started having symptoms about four to five years ago and that they had spiralled out of control. He was "now not capable of working" and although he was taking medication and feeling somewhat better, he was still significantly impaired. Dr Akkerman then stated: He definitely suffers from a major depression, complaining of the following symptoms: · he has initial insomnia; · He has middle insomnia; · his concentration is impaired; · his short term memory is impaired; · he has no energy; · his level of interest in things has decreased; · his libido is down (he blames the Lovan for this); · he is particularly irritable; · he is tearful; · he has flashbacks; · he has nightmares; · he binge drinks. ... Mr McKenzie continues to have many psychological issues regarding his service in the Police Service. 77 In September 2006, Dr Akkerman supplied a medical report to the State Super SAS Trustee Corporation ("SAS Trustee Corp"). In that report he noted that Mr McKenzie was applying for a s 10B(2) Hurt-on-Duty pension under the Police Superannuation Scheme and that he had been provided with a list of questions to be addressed in order to have the claim proceed. Dr Akkerman noted that, in that report, Mr McKenzie's reasons for resigning in 1990 were due to "stress and an inability to cope with police work". In answering the specific questions Dr Akkerman stated that, in his opinion, Mr McKenzie was not medically capable of performing his duties as a police officer and his incapacity related to his psychiatric condition of "major depression". Mr McKenzie's present condition was directly attributable to an injury and he developed major depression as a consequence of the work he was doing. Mr McKenzie's incapacity was solely related to the injury incident earlier described. His current incapacity had not been brought about or affected by the passage of time or ageing process. His condition deteriorated in early 1990. Dr Akkerman said he could support this date with some confidence and his opinion was supported by the fact that Mr McKenzie left the Police Service at that time as he was no longer able to cope with the duties of his office. He expressed the view that Mr McKenzie would be incapacitated for the foreseeable future and the condition was chronic. 78 On 31 October 2006, Dr Akkerman supplied a further report to the SAS Trustee Corp amending his earlier report. In this report his opinion was that Mr McKenzie was not medically capable of performing duties as a police officer and that his incapacity was related to his psychiatric conditions, namely, major depression and post-traumatic stress disorder. Post-traumatic stress disorder was a psychiatric condition added to the earlier report that identified only major depression. Dr Akkerman then stated that Mr McKenzie's present condition was directly attributable to an injury. He developed major depression as a consequence of the work he was doing. He identified three issues "in particular": during a SWAT operation a man in farmhouse, near Armidale, opened fire on them when they were not prepared and they eventually caught the man. One of his fellow officers kept a gun at the assailant's head and the gun was accidentally discharged. As coincidence would have it, the assailant had just moved his head and avoided injury; there was no search warrant on a house and Mr McKenzie went into a room where he saw a man in bed. He decided he was innocent and did not pursue this further. Later they found he had a gun under the sheet and he could have killed all the police officers; once he was in a house waiting for an armed robber to return and was very scared. Mr McKenzie's incapacity was wholly related to the injury and incidents just described. 79 In July 2008, Dr Akkerman supplied a report to Mr McKenzie's solicitors. He had been provided with his previous September and October 2006 reports and a submission to the Police Superannuation Advisory Committee. In that submission it was suggested that Mr McKenzie may not have informed Dr Akkerman and Dr Delaforce of his professional misconduct and that may have led them to assessing him as being incapable in terms of s 10B(2) of the Act when they otherwise may not have made that assessment. Dr Akkerman was asked whether, in view of the professional conduct complaint against Mr McKenzie, that complaint caused him to vary the opinion he had expressed in his two earlier reports and if so, in what way had his opinion changed? Dr Akkerman then reported that, having knowledge of these two complaints, did not lead him to alter his opinion in any way as those stresses were relatively minor compared to the others to which he had been exposed. His diagnosis remained unchanged although Mr McKenzie had improved but he was still quite impaired in spite of ongoing treatment and as a consequence, prognosis was guarded. 80 On 26 March 2009 Dr Akkerman provided a further report to Mr McKenzie's solicitors. He referred to his earlier reports and noted that he had been provided with documents, including those describing the duties of a New South Wales police officer. Based on the history given by Mr McKenzie and recorded in Dr Akkerman's report he was asked whether, in his opinion, Mr McKenzie was fit for the duties of his office as a police officer at the date of his resignation in March 1990? Dr Akkerman said that was a very difficult issue and he had not met Mr McKenzie until 2005. He suffered from post-traumatic distress disorder and major depression and in the doctor's opinion this was related to his duties in the Police Service. Because of the history obtained from Mr McKenzie and Dr Akkerman's understanding of the disorder (post-traumatic distress disorder), he stated his belief that Mr McKenzie's condition was related to his employment with the Police Service and he believed that, more likely than not, he was incapable of working as a police officer from 1990 onwards. 81 In oral evidence, Dr Akkerman said that he did not change his diagnosis by adding post-traumatic disorder in his report of late October 2006 - he had added to his diagnosis. At the very first consultation, Mr McKenzie told him of symptoms that were consistent with post-traumatic distress disorder. Those matters included flashbacks and nightmares but Dr Akkerman did not believe that he had sufficient symptoms to reach the full threshold for post-traumatic distress disorder and that is why he did not diagnose it at the time. As Dr Akkerman got to know him better, Mr McKenzie was telling him more and additional symptoms came out and the doctor realised that he did not just have symptoms of post-traumatic stress disorder but he had reached the full criteria sufficient to sustain the full diagnosis. Mr McKenzie did not give a lot away and in the doctor's experience there were a number of people with post-traumatic stress disorder who did not like to talk about their symptoms or their issues. As the treating doctor it was his responsibility to make him better not worse and quite often when people were forced to talk about stressful things, it would make them worse. Dr Akkerman tended to let the patient decide when they talked about stressful things and Mr McKenzie did that from time-to-time but not all the time. 82 In September 2006 when Dr Akkerman advised the SAS Trustee Corp that Mr McKenzie's condition deteriorated in early 1990 and that he could support that date with some confidence., that was when he left the Police Service and was no longer able to cope with the duties of the office. That statement was made about a time when he was not treating Mr McKenzie and so he relied on his history. He had seen Mr McKenzie a number of times by the time he had made his September 2006 report to SAS Trustee Corp and his history was that he had consistent problems, had time off work, had some medical attention and Dr Akkerman came to accept his version of events. Dr Akkerman was then asked to assume a number of events that had occurred during Mr McKenzie's life as a police officer and a number of the problems he had complained of from time-to-time and to give his opinion based on those assumptions. Dr Akkerman stated that those issues were internally consistent with the conclusions he came to, particularly the diagnosis of major depression but there were indications of post-traumatic stress disorder. From 1989 to March 1990 when Mr McKenzie said he could not do police work any more, could not interview people, including victims or offenders and was avoiding firearms, he was avoiding jobs and was aggressive on the job, hated the police work and was unable to do associated paperwork, then those matters and difficulties were consistent with the symptom complex that Dr Akkerman had described. They were consistent with Mr McKenzie being unfit for police work at the time of his resignation. That was because of the depression diagnosis and the possible post- traumatic distress disorder at the time. 83 In considering the Hurt-on-Duty reports concerning the injuries complained of by Mr McKenzie while he was still a police officer, Dr Akkerman noted that he was able to convince a general practitioner that he was unwell because of a psychiatric illness and that occurred 20 years ago. In those days country general practitioners had a low level of knowledge in this area and he did not know Dr Breusch but that combination of matters suggests that, at the time, Mr McKenzie was quite unwell. Dr Akkerman also thought it was quite significant that, at that stage, Mr McKenzie was reporting his problems - his experience with police officers around that time was that they wished to be tough and admitting psychological problems was not part of their image. This was especially so in country towns where word got around when people were seen in the waiting room. 84 In cross-examination, Dr Akkerman was questioned about his diagnosis having regard to the standards set out in the Diagnostic Statistical Manual, DSM-IV-TR. Dr Akkerman accepted that, in the case of both conditions, they needed to reach a level of clinical significance before they could be properly diagnosed. An indicator of clinical significance or otherwise was discomfort or interference with significant roles in life, including relationships at work. A major depression occurred where a person generally functioned at a normal level and then had a discrete period when their mood dropped. They were like that for a while and then went back to whatever level of function they had previously. That was to be distinguished from a low-grade depression which was considered to be part of a personality. The major depressive episodes that Dr Akkerman was able to describe were those set out in his June 2005 report where he said that Mr McKenzie suffered from major depression - he had poor sleep, initial and middle insomnia, poor concentration, poor memory, no energy, no interest in things, poor libido, and was irritable and tearful. In 2005 Mr McKenzie had told him that these were the matters he suffered over the past four or five years. 85 Dr Akkerman agreed that it was possible for someone to have post-traumatic symptoms without having the full-blown disorder. A patient could suffer from depression and some symptoms of post-traumatic stress disorder but not sufficient to meet the threshold for a diagnosis. It was possible for someone to have the symptoms ultimately developing into the disorder but have the disorder develop at a later period of time. When asked if that was what happened to Mr McKenzie, Dr Akkerman said that was a difficult question. He had not examined him in late 1989 and early 1990. He had symptoms of post-traumatic stress order then but from those descriptions, he could not tell whether he had the full blown syndrome because some of the more important symptoms were not described by him, by his wife, Dr Breusch or Dr Roberts. That exact issue was the reason his own diagnosis was delayed. Post-traumatic stress disorder could fluctuate in severity depending on what was happening in the person's life. It was possible that at times Mr McKenzie would have satisfied the criteria for pos-traumatic stress disorder and at other times his condition would ameliorate and he would not reach the criteria and later deteriorate again and so it could continue. 86 Dr Akkerman was asked what occurred between his reports in September 2006 and late October 2006 that led him to add the extra diagnosis of post-traumatic stress disorder. Because it happened three years ago, Dr Akkerman could not remember exactly what occurred but thought it was likely to be a combination of Mr McKenzie telling him something further and spending some more time thinking about the issues. On a review of his file, Dr Akkerman acknowledged that Mr McKenzie had sent him a number of letters. On 17 October 2006, Mr McKenzie had written to clarify a previous letter and noting that, at the time of his resignation, he was on sick report for stress. The letter said Mr McKenzie did not mention it in his letter of resignation and therefore it was only "the post-traumatic disorder that I am clarifying with you". Dr Akkerman could not recall the circumstances of receiving that letter but it suggested that he reviewed his symptoms and asked Mr McKenzie more specific questions and as a consequence, decided that he did meet the criteria rather than having symptoms of it. By that stage he was satisfied that Mr McKenzie met all the criteria for that diagnosis although that was not apparent to Dr Akkerman when he first saw Mr McKenzie. When that diagnosis was added it spoke of the situation at that time. Dr Akkerman was still not sure whether Mr McKenzie met the DSM-1V-TR criteria for post-traumatic disorder in 1989 but after revision, he concluded that he did reach it in late October 2006. He remained confident that he had reached the diagnostic criteria for major depressive disorder at an earlier stage. In relation to the symptoms experienced by Mr McKenzie within the last four to five years (that is, approximately 2000 - 2001) Dr Akkerman said it was quite common for patients to have poor recall of events and it was quite common for people to tell him part of the story at first and later after they have thought about it or talked to someone else, they realise that actually it had been present for much longer. Mr McKenzie had a major depressive disorder when he resigned in 1990 and that was more than simply feeling "down". 87 Dr Akkerman was asked if Mr McKenzie had experienced a number of traumatic events as a police officer, did it make sense that he would not have complained about those traumatic events in November 1989 when seen by Dr Roberts. Dr Akkerman's view was that it made a lot of sense and that one of the diagnostic criteria for post-traumatic stress disorder was avoidance. Patients could go to extraordinary lengths to achieve avoidance and they did not generally like telling their doctor about what happened to them and often preferred not to talk about it. In Dr Akkerman's medico-legal work, one of the indicators that a patient might be telling him an exaggerated story was when they told him in great detail about the trauma they had experienced. People tended to avoid that and that is what happened with Mr McKenzie. Mr McKenzie did not tell him much about those experiences. 88 Mr McKenzie had informed Dr Roberts of the difficult situation that had arisen with a senior officer but Mr McKenzie had not given that history to Dr Akkerman if regard was had to his reports. Dr Akkerman said he knew about that incident but could not recall how he knew about it - whether or not he had been told or had read it somewhere. Dr Akkerman could not recall when he became aware of Mr McKenzie's problem with a senior officer. Dr Akkerman accepted that, if a police officer was asked to do something unethical and it had reached the stage where he did not want to go to work, hated work, vomited before leaving for work and generally avoided the person and felt that his future in the Police Service was not looking bright, it may possibly lead to a person feeling a bit depressed and it was possible that such a background would be consistent with a conscious decision to leave the Police Service. 89 At Dr Robert's initial consultation there was a relatively confined number of symptoms described by Mr McKenzie but Dr Akkerman noted that a mental status examination was not conducted in that report. There was a record of the history given by Mr McKenzie but Dr Roberts did not outline his opinion regarding mood, concentration, memory, whether or not he was cheerful - these things were not dealt with in the report. A mental status examination involved observing a person and making judgments based on experience and observation of that person. Dr Akkerman regarded that as an extremely important part of a psychiatric examination. In the absence of that approach there was insufficient reason for Dr Roberts to confirm or deny that there was a diagnosis. 90 In Dr Akkerman's view there needed to be a record made of observable signs of conditions: in major depression that would be looking for depressed moods, poor concentration, poor memory, irritability and tearfulness and with post-traumatic distress disorder there were four main observable symptoms, namely, getting upset when stresses were described, preferring to avoid reference to stresses, being easily startled and being hypervigilant. There were other things that could not necessarily be seen such as lack of sleep or poor sleep and the patient's word had to be taken on those matters. In relation to Dr Robert's report there was no history given of traumatic events but Dr Akkerman stated that those traumatic events were recorded yet Mr McKenzie did not mention them and that was a form of avoidance. It could mean that they were not troubling him at that time but that is why the medical practitioner had to record observable signs and comment because there were several explanations why those traumatic experiences were not discussed. In fact, Mr McKenzie did not discuss those traumatic events with Dr Akkerman for some time and so he had a very good inkling why Mr McKenzie did not tell Dr Roberts about them. Mr McKenzie did not want to talk about them because when he talked about them he became upset and it hurt him. The reference to difficulties with his senior officer may have been the matter that was worrying Mr McKenzie at the time. In making a retrospective diagnosis of what may have been the diagnosable psychiatric condition as at 1990, he was relying upon what Mr McKenzie told him he was feeling. Dr Akkerman was aware that there were some problems since 1990 with Mr McKenzie's career as a solicitor. 91 Dr Akkerman was shown a lengthy letter written to the Legal Services Commissioner by Mr McKenzie in 2002 concerning inquiries being conducted into his practice. Dr Akkerman proceeded on the basis that he was being asked to address a serious matter. He noted that poor concentration was an issue when the person was doing things that were not of great importance. The more important the matter, the more emotional significance something had then the better a person could concentrate and remember things. This was a serious matter being responded to by Mr McKenzie but Dr Akkerman could not tell from reading the letter whether his concentration at the time was temporarily normal or normal all the time. He could not tell from that letter whether Mr McKenzie was suffering from a clinically significant major depressive disorder. Nor could he tell if he was suffering clinically significant post-traumatic stress disorder by reference to this letter. 92 It was put to Dr Akkerman that Mr McKenzie was dealing with a number of difficulties in his legal practice, losing money and possibly had money and family worries. Against that background Mr McKenzie had said he was spiralling out of control, as described when Dr Akkerman saw him for the first time, yet had been able to function at some level for approximately 14 years up to that time: was this more likely than not to be the cause of his spiralling out of control, namely, something that happened reasonably close to that time? In dealing with that question, Dr Akkerman said it was possible and was also impossible. He did not know whether the symptoms continued while he worked as a solicitor or came back at a lower level so as not to justify a full diagnosis but these things were not known but eventually the issues did return. Mr McKenzie had already suffered from a psychiatric condition and therefore his vulnerability did develop a second, third or fourth episode, if that is what happened, and would be much greater. The problems in his professional and family life or a combination of them could lead to him becoming unwell again, if he had become well prior to that, but Dr Akkerman did not know whether that was the case or not. He accepted that it was difficult to gauge whether or not Mr McKenzie was incapacitated for police work as at 1989 or 1990, especially because Dr Akkerman was not present then. In making his own diagnosis one issue was the accuracy and honesty of Mr McKenzie's symptoms over a period of time and another issue was internal inconsistency and the other information that existed. namely, that he reported the matter, he saw a general practitioner, he told Dr Roberts about quite a few symptoms and although Dr Roberts decided they were not important, Mr McKenzie had still complained about them and these were all consistent with him being unwell at the time. At the time his general practitioner thought that these symptoms were clinical in nature and gave him time off work. At this stage he had been prescribed Frisium and that could be prescribed for general anxiety. 93 Dr Akkerman did not regard his two reports to the Superannuation Trustees as medico-legal reports because he had see Mr McKenzie on numerous occasions. When a person was seen for a medico-legal consultation, a number of questions were asked and it could be quite confrontational. However, when seeing a patient for the first time a doctor tried to develop a rapport and that was not achieved by asking a number of questions which indicated that they were not being believed. A treating doctor therefore slowly and gradually worked through these things in developing a bond with the patient and that was very important. If a patient did not like you or trust you as a doctor, you were not going to get anywhere with them. 94 It was not until October 2006 that Dr Akkerman took a history of the traumatic incidents in which Mr McKenzie was involved. He assumed that time scale because that it when he received letters from Mr McKenzie and he assumed there was some legal reason for that but until then Mr McKenzie had been keeping those things from him and he assumed he was avoiding them. There may have been some legal reason why he wanted those issues to be addressed and Mr McKenzie may have wanted to ascertain whether or not he was suffering from post-traumatic stress disorder. He was then asked whether he had been exposed to severe stresses. Dr Akkerman's habit was to ask for the three worst examples and any of them, in his opinion, could lead to a clinical post-traumatic disorder or delayed onset. There was, however, insufficient information to say that had occurred here. Mr McKenzie at the time definitely had symptoms of post-traumatic distress disorder but there was not enough information to say whether or not he had reached the DSM-1V-TR criteria. There was a technical issue that arose: if a person developed a symptom immediately but did not reach the full-blown disorder until later, was that to be described as delayed on-set or not? If they had the symptoms and it just got worse, was that delayed on-set? It was just a question of semantics. 95 When asked whether the major clinical dysfunction, in terms of not being able to function in society or work, actually occurred in 2003, Dr Ackerman said that, if it was accepted that Mr McKenzie was capable of giving a reliable history, the answer was yes but he strongly suspected that he was unwell for a long time but being a high functioning person was still able to function reasonably well but not to his normal level of functioning. He thought that Mr McKenzie was impaired all the time that he worked as a solicitor but he was still capable of doing some work. If he had not had the illness he would have been able to do much more. 96 Dr S G Young saw Mr McKenzie on 16 occasions from mid-May 2004 until mid-March 2006. He supplied two reports dated June 2006 and August 2007. Dr Young stated that he first treated Mr McKenzie for post-traumatic stress disorder in approximately mid-October 2004 just after his third consultation. He was treated with medication and assessed for psychological treatment and referred to a psychologist for management of his problems. He had several sessions with the psychologist with some improvement and then was referred to Dr Akkerman, Psychiatrist, for medication adjustment. As at June 2006 it was recorded that he was still seeing Dr Akkerman and would need to see both Dr Akkerman and Dr Young on a long term basis. Dr Young expressed the view that Mr McKenzie's current problem was directly caused by his police work. 97 In his second report, Dr Young stated that he believed Mr McKenzie was suffering from post-traumatic stress disorder, noting that he had a long history of working in the Police Service and experiencing traumatic events. He had not received any counselling after these events and the culture at the time was to "get on with things". He noted that it was felt to be an unacceptable weakness if Mr McKenzie was upset by these incidents. He had received treatment with various anti-depressants and counselling and had seen a psychiatrist, Dr Akkerman, on a regular basis. He continued to have symptoms and had recently suffered a marriage breakup. Mr McKenzie would require ongoing psychological support and medication. Given the length of time he had suffered from post-traumatic disorder and the optimal response to treatment so far, Dr Young was not optimistic that his prognosis would be favourable. At the date of that report, Dr Young could not, at least in the foreseeable future, see Mr McKenzie able to return to his previous occupation or one that suited him. Dr Young was not required for cross-examination. 98 Mr Rudd de Bakker was a clinical psychologist who had provided two reports dated August 2007 and October 2007. In the first report Mr de Bakker said that he had seen Mr McKenzie from late November 2004 on 10 occasions until mid-November 2005. He stated that Mr McKenzie had cancelled appointments on a regular basis because of financial reasons and possibly to avoid confrontation with his traumas. He was stressed, anxious and felt suicidal. This had to be addressed to stabilise his emotions. This course was necessary to be able to cope with an extensive cogitative de-sensitisation behavioural treatment for post-traumatic distress disorder. He recorded Mr McKenzie's resignation for the Police Service in March 1990 and the fact that, during SWAT operations, Mr McKenzie was exposed to events that involved possible threatened death or serious injury. Mr McKenzie had clearly remembered a few specific events, including a shooting near Armidale where a gun pointed near the head of an assailant had accidentally discharged. He also referred to finding a man in bed with a gun under the sheets during a house search who could have killed the police officers present. Mr de Bakker stated that "it seems" that, in early 1990, Mr McKenzie could no longer cope with his duties in the Police Service and as a consequence, resigned. 99 In Mr de Bakker's professional opinion, at the time he was seeing Mr McKenzie, he was suffering from major depressive order and post-traumatic stress disorder, chronic, as described in the Diagnostic and Statistical Manual of Mental Disorders, 4ed, text revised (DSM-IV-TR). It was known that depressive symptoms and disorders were very common in people who suffered from post-traumatic stress disorder. The diagnosis was based upon Mr de Bakker's clinical observations and Mr McKenzie's complaints. It was noted that Mr McKenzie suffered from recurrent thoughts and recollection of events and that sometimes he felt he was reliving those events. Mr McKenzie was anxious and tried to avoid contact with people or places that were or could be associated with his traumas. He was not interested and felt no motivation to go to his job and felt he could not cope with any form of stress or time pressures. He had severe sleeping problems, difficulty concentrating and was irritable and also described suicidal thoughts. Medication prescribed by his general practitioner, did not appear to have the desired results. Mr de Bakker advised Mr McKenzie to see a psychiatrist and was referred to Dr Akkerman. Mr McKenzie stopped seeing Mr de Bakker after beginning treatment with Dr Akkerman. 100 In relation to prognosis Mr de Bakker said that the symptoms of PTSD and the relative predominance of re-experiencing avoidance and hyperarousal symptoms could vary over time and many PTSD sufferers had symptoms for longer than 12 months after the trauma. Symptoms could intensify in response to reminders of the original trauma, life stressors or new traumatic events. During their lifetime individuals experienced a waxing and waning of their symptoms. Mr de Bakker said that, if Mr McKenzie still suffered from PTSD at the present time, then in his opinion the prognosis was very negative. There was a possibility he would suffer from the symptoms during his lifetime. Chronic PTSD reacted, in his experience, only marginally to any form of psychological treatment. He noted that he had not seen Mr McKenzie for nearly two years. In his October 2007 report, Mr de Bakker expressed the opinion that Mr McKenzie was medically incapacitated to perform the duties of a police officer and that his incapacity was related to his major depression and more so to his PTSD. Mr McKenzie had resigned from the Police Service in March 1990 and Mr de Bakker's opinion was that his condition had deteriorated in early 1990. He resigned as he was no longer able to cope with the duties of his office. Mr McKenzie would be incapacitated for the foreseeable future and his PTSD was chronic. Mr de Bakker was not required for cross-examination. 101 Professor Alexander McFarlane provided three reports to Mr McKenzie's solicitors commencing with an October 2007 report followed by April 2009 and May 2009 reports. Professor McFarlane completed his specialist training in psychiatry in 1980 and since 1983 his area of particular speciality had been the effect of traumatic stress. Amongst his roles, he was the Senior Adviser in Psychiatry to the Australian Centre for Post-Traumatic Mental Health and the Australian Defence Force. In relation to medico-legal experience, the Professor had provided written reports for the United Nations about the compensation commission for the Iraq occupation of Kuwait, had been engaged by the Ministry of Defence in the United Kingdom relating to Falkland Island, Gulf War and Northern Ireland veterans and acted as a special advisor for the Department of Veteran Affairs. The Professor had published over 250 articles and chapters on PTSD and related topics. 102 In July 2007 he had interviewed Mr McKenzie for three hours. Mr McKenzie gave a history of his work in the Police Service at various locations stating that he had decided to leave the Police Service as the stress was getting to him and he had conflict with the head of detectives in Armidale about the falsification of crime statistics. He had commenced studying law and then worked in a number of law firms. He bought a conveyancing practice in Maclean in January 2003 and then his mental state began to decline and he could not concentrate and made mistakes so he sold the practice after his wife noticed his declining performance. Late in 2004, after six months off work, he saw a doctor. His difficulty in focusing and organising himself, combined with his increasing avoidance of clients and irritability led his general practitioner to diagnose depression and he was referred to a psychologist. The psychologist diagnosed post-traumatic stress disorder and suggested that Mr McKenzie see a psychiatrist, Dr Akkerman. 103 In relation to psychological problems, Mr McKenzie was not sleeping, abusing alcohol and felt depressed. In 2003 the situation declined at a rapid rate with a good day consisting of drawing the blinds and spending the day alone. He could not understand what was happening because he had an easy job and a good business. He was very withdrawn, avoiding going to school functions and was cranky with his children over petty matters. He avoided his friends and knew there was something wrong because he was sitting up until 1.00am and drinking a bottle of scotch by himself. It was not until he began discussing his emotional state with Dr Young that he became aware of how he was feeling. Since leaving the Police Service he had intermittent memories, thinking back to situations and the fact that he was "mad" to have done some of the things he had done. He began to wake up in the middle of the night sweating, a problem that began in 2003. He had not slept well since that time and did not understand what triggered his symptoms that year. He was permanently worried and felt sick about every bad scenario with everything that was going on. He was worrying about his marriage, his children, his work and his finances. The incidents that played on his mind were not the ones that were the greatest threat to him but he remembered a house search in Armidale where he had failed to detect that a sleeping man had a loaded rifle under the sheet and he had fallen on to the barrel and pushed it into the bed and feared that this could have cost him and the other officers their lives. He said this scene was like a movie that went over and over in his mind. He also mentioned the inadequate search at a motor vehicle accident in Sydney where an injured person could have been left in the car and towed away and not been detected for months. Those memories came to mind during the day and night for no reason and he was unable to identify any triggers other than newspaper reports of shootings or serious car accidents. He spoke of the hostage situation at Guyra and the discharging of a rifle and how the incident began playing on his mind before he left the Police Service. One incident causing real nightmares was discovering the burnt body of a child. 104 In relation to his personality, Mr McKenzie said that he previously saw himself as "joyful and laid-back". He was very sociable organising fundraisers and school golf days etc. In relation to his personal history, he said he was well cared for and he had no other traumatic experiences in his life. 105 In relation to his mental status examination with Professor McFarlane, he said that Mr McKenzie's behaviour at the interview was co-operative and generally unremarkable except that he became overtly tearful when he was describing the incident where he had found the burnt body of a young child. On other occasions his body language graphically depicted his behaviour in particularly traumatic environments. His description of his symptoms was colloquial and given in an individual manner rather than professional language. Professor McFarlane said that was an important observation as it indicated that his description of his symptoms were not contrived, learnt or indicative of medical jargon which he had adopted in the course of his treatments. He now had insight into the nature of his difficulties and appreciated his professional relationship with his treating psychiatrist. Nevertheless, he was amused by his lack of reflectiveness and understanding of his symptoms prior to his wife suggesting that he should seek medical attention several months after he gave up his last business. Mr McKenzie thought the assessment he had with the psychiatrist in 1990 while on sick leave left him with the impression that he did not have a diagnosable condition although he only saw himself as being depressed at the time. When Professor McFarlane queried him about his knowledge of these matters, Mr McKenzie said that he had, at a professional level, performed little personal injury work and had concentrated on conveyancing, criminal law and commercial matters. 106 In his diagnostic assessment, Professor McFarlane stated that, on the basis of the history he obtained, he was of the view that Mr McKenzie had suffered from post-traumatic distress disorder, major depressive disorder and intermittent binge alcohol abuse. There was also a question of whether he satisfied the diagnostic criteria for obsessive, compulsive disorder. The longitudinal course of his symptoms had involved periods where the symptoms of one condition had tendered to dominate over another: for example, in 2003 when Mr McKenzie ceased working his symptomatology appeared to have come to the fore. His post-traumatic stress disorder did not appear to relate to a particular incident but rather to a number of experiences he had endured in the course of his career as a police officer. Referring to the incidents recounted to him, Professor McFarlane said those incidents particularly filled him with a sense of threat, fear and horror - at various times during the day he had spontaneous recollections of them. He also had dreams that were trancelike states where the events or incidents would play on his mind and he would awake in a state where he found it difficult to separate his current situation from the dream. There were particular triggers for those memories such as hearing news stories about police shootings or major motor vehicle accidents. His avoidance was manifested in several ways. The distress associated with his traumatic recollections made him actively try to shut out or avoid those recollections. There were a number of circumstances or situations where he would not go because they brought back memories: for example, when going to Sydney he avoided the eastern suburbs where he worked as a detective and would not go back to Forster where he had been confronted by a criminal after his release and threatened in a hotel. 107 Mr McKenzie referred to a general sense of detachment in his relationships and a sense of emotional numbing and no longer having the same range of emotions as previously. He had become significantly more socially withdrawn. He had a foreshortened sense of the future and actively contemplated suicide. He satisfied the criteria of having six of the seven avoidance and estrangement criteria when only three were required to satisfy this component according to DSM-IV. He had a significant problem with his memory and concentration and they were a major factor in leading to the cessation of his legal practice. He had significant difficulties with increased irritability and was having marked hypervigilance. He had an exaggerated "startled response" and significant sleep disturbance. Those symptoms had been present for more than one month and were a significant cause for distress and disability. 108 Mr McKenzie also had significant major depressive symptoms and they were an important contributing factor to his initial presentation to Dr Akkerman. He had a disturbance of mood with associated despondence and loss of motivation which lasted more than two weeks. He had associated suicidal thinking, disturbances of sleep and problems with memory and concentration. He appeared to have had intermittent symptoms of depressed mood dating back to 1990. There had been a greater degree, therefore, of fluctuation of his mood disturbance than of his underlying post-traumatic symptoms. On this basis a diagnosis of major recurrent depressive disorder was diagnosed. He also had episodes indicative of panic attacks but a separate diagnosis was not warranted. The majority of panic attacks occurred in the context of specific environmental triggers, including public places where he may meet individuals with whom he had contact during his police career. His current pattern of alcohol consumption was not indicative of a pattern of abuse and this condition was currently in remission. 109 Professor McFarlane then directed his attention to Mr McKenzie's Statement of Claim filed in other proceedings and the incidents he had experienced while serving in the Police Service. In that context he was then asked to comment upon a number of medical reports that had been provided in relation to Mr McKenzie's condition. Professor McFarlane noted a number of facts recorded as part of Mr McKenzie's history and make other comments about the reports. In relation to Dr Akkerman's reports of 21 September 2006 and 31 October 2006, Professor McFarlane noted that those reports were brief and did not contain aspects of the history upon which the opinion was based. In relation to Dr Robert's report of 30 November 1989, he commented that the report demonstrated that a detailed psychiatric assessment of certain symptomology was taken by Dr Roberts. However, he did not take a specific history of Mr McKenzie's traumatic incidents. Dr Roberts came to the conclusion that Mr McKenzie's nausea and vomiting had no psychiatric origin but it was clear that Mr McKenzie was not suffering from some other disorder which had subsequently been diagnosed to explain those symptoms. In Professor McFarlane's view, combined with his intermittent abdominal pain and diarrhoea, it was probable that those symptoms were part of the general complex of irritable bowel disorder. At the time Mr McKenzie had a depressed mood albeit with a lack of pervasive mood disturbance associated with vegetative features. He did complain of shortness of breath and sleep disturbance but Dr Roberts did not take into account that, at the time of his assessment, Mr McKenzie was being treated with Benzodiazepine. That drug was likely to have affected his symptomology at that time and it was noteworthy that Mr McKenzie's hyperarousal symptoms in conjunction with his fluctuating depressed mood continued in the absence of the work environment. 110 Professor McFarlane then made the following comments on Dr Robert's report: Dr Roberts erroneously concluded that the continuance of his mood and anxiety symptoms when he did not attend work meant that the work environment could not have been the cause. What his reasoning fails to take into account is that a psychiatric condition which involves disturbance of mood and hyperarousal is not necessarily reactive to external stimuli. These disturbances take on an endogenous or internal quality where the illness itself drives the symptoms and that is not a simply reactive factor to the external environment. Objectively, these symptoms remained in the setting of the interview with Mr McKenzie having a pulse of 96 and moist palms which are consistent with a pattern of hyperarousal. Whilst Dr Roberts conducted a detailed review of some anxiety symptoms, he did not systematically examine the symptoms of posttraumatic stress disorder. Some symptoms were reported such as sleep disturbance, decreased sense of optimism about the future, a pattern of increased arousal and physiological distress when exposed to circumstances that remind him of traumatic incidents namely his work environment and disability, namely inability to attend work. However, his memory and concentration were not significantly affected and he had been able to continue studying for a Law Degree. In my view, the underlying hyperarousal that is associated with a posttraumatic stress disorder is likely to have been manifest at this time. This relationship is well documented in literature (McFarlane, "Stress-related Musculoskeletal pain: Best Practice & Research Clinical Rheumatology, 2007, Vol 21, pp 549-565). There is a relationship between irritable bowel syndrome and post-traumatic stress disorder, with a similar underlying mechanism of sensitisation. Therefore, whilst Dr Roberts' report contains important factual information, it does not assess symptoms of posttraumatic stress disorder and as a consequence, the nature of the link between Mr McKenzie's symptoms and his workplace was not defined. Posttraumatic stress disorder was included in DSM-111 in 1980 and considerable attention had been brought to this disorder in the intervening years in the psychiatric literature. 111 In relation to Dr Robert's second report dated 30 November 1989, Professor McFarlane made the following comment: Dr Roberts further states that "whilst it is well recognised that external environmental circumstances may give rise to psychiatric illness, these external stressors need to be major. I append the definition of a posttraumatic neurosis which gives some indication as to the magnitude of forces which need to impinge upon an individual to produce an 'illness'. · Comment This entry is noteworthy because it demonstrates that Mr McKenzie was not behaving in such a way as to exaggerate or over emphasise his symptoms in the workplace, although he had complained to his medical practitioners about this. Mr McKenzie was being told as a consequence of his consultation with Dr Roberts that he had not been exposed to events of the type that could lead to " posttraumatic neurosis". This also demonstrates that Dr Roberts was aware of this condition. However, it appears that he failed to specifically enquire from Mr McKenzie as to the nature of his exposures to events of the type that could lead to this condition. 112 Professor McFarlane was then asked to address the relationship between Mr McKenzie's employment and his current condition. It was noted that Mr McKenzie had presented a history of increasing symptomatic distress while working as a police officer and was becoming increasingly nauseated and distressed, particularly in the morning. It had already been recorded that he had a range of associated symptoms and they arose in the setting where Mr McKenzie had experienced specific traumatic events. His anxiety symptoms and sleep disturbance at this time indicated that he had a pattern of significantly increased arousal and this had an anticipatory component to it, namely, it was triggered by Mr McKenzie "moving to his workplace". The existence of his subsequent distressing and intrusive recollection, including the nightmares focusing on the body of a burnt child in a house fire, indicated his hyperarousal was specifically associated with traumatic memory structures arising from his work environment. In relation to this matter, Professor McFarlane continued as follows: This history is in keeping with a pattern of sensitisation (see Attachment 1) where his reactivity to potential threats or distressing memories was progressively increasing during the course of his police service. This is in keeping with the aetiology of posttraumatic stress disorder where the individual develops a conditioned fear response upon exposure to a horrific or distressing event that does not progressively distinguish with time. Rather, the amplitude of Mr McKenzie's reactivity progressively increased with exposure to reminders and was further reactivated by him having to contend with other distressing events in the course of his police work. It is also known that stresses interact with posttraumatic stress disorder and will increase the amplitude of an individual's anxiety. At the time Mr McKenzie saw Dr Roberts, he had chosen to take a position on the alleged falsification of statistics by a senior officer. For an individual officer to take such actions, an individual such as Mr McKenzie is placed at the risk of approbation of his colleagues and seniors. In so doing, the social support that he is provided with in the workplace is likely to be undermined. Social support is an important protective factor in the aftermath of traumatic events. Therefore, Mr McKenzie's history demonstrates how he had developed a series of traumatic memories that were directly a consequence of his exposure to these accidents, crimes scenes and incidents. No steps were taken by the NSW Police Force to provide assistance or treatment to deal with his increasing symptomatic distress other than the referral to Dr Roberts which did not lead to any appropriate intervention. In this regard, his exposures and the failure of any intervention by the NSW Police Force have initiated his condition and led to its chronicity. Mr McKenzie is a resourceful man who recognised that he needed to seek career alternatives. Therefore, he studied law and began practising on leaving the Force. However, he was aware of limited tolerance of certain stressful professional situations and chose to work in a large conveyancing practice to remove some of the other potential demands of other areas of legal practice. This led to a decrease in his symptomatic distress for a period of time. His mood had improved and he was able to modulate his alcohol intake periodically. However, progressively with time, his traumatic memories began to revisit him and throughout this time he had noticed the demands of organisation, which were the greatest challenge for his concentration, were difficult but it was only in the years after he moved to Port Macquarie that his symptoms began to further intensify. One pertinent incident which he contributed to this was in 2000 when he was confronted in a hotel at the end of a day's fishing by a criminal whom he had locked up. This incident characterises the ongoing vigilance that he had experienced and preoccupation about revenge from individuals whom he had been involved in dealing with in his days as a detective. In this setting, his anxiety symptoms associated with his posttraumatic stress disorder and his traumatic ruminations progressively increased with an associated disruption of his memory and concentration. He became progressively more and more depressed to the point where he was unable to function. His major depressive disorder is a related comorbid condition to this posttraumatic stress disorder. He had suffered depressed mood at the time he left the NSW Police Force. It is recognised that this pattern of comorbidity or co-existence of conditions is very common in posttraumatic stress disorder and is often a measure of the severity of the underlying condition. Therefore, his exposures during his career as a police officer have the most important aetiological factor that has initiated his distress. Once this pattern of hyper-activity has emerged, it is frequently the case in individuals who have had repeated traumatic exposures such as police officers or war veterans that the amplitude of their reactivity increases with time, even when they are removed from their role as an officer because of the multiple reminders that exist in their environment to the traumatic incidents. The process then becomes an increasingly endogenous one due to the disruption of the underlying neurobiological mechanisms that are involved in the regulation of fear and memory and concentration. The individual becomes progressively less able to deal with complex environments that require the selective processing of information and the suppression of affective distress. In this regard, the individual becomes increasingly reactive to environmental triggers. 113 In relation to prognosis, Professor McFarlane said: Mr McKenzie's symptoms are of a chronic nature. The progressive escalation with time in the context of him having been symptomatic in 1990 suggests that his symptoms are well entrenched. As stated above, the duration of an individual's symptomatic distress is an important factor predicting the future chronicity. Whilst treatment may provide him with some decreased disturbance of mood, his capacity for focused attention and engaging in demanding tasks is likely to remain significantly compromised. In my view, even with effective treatment, it is improbable that he will be able to return to work as a solicitor. Increasing environmental demands on him are likely to exacerbate his condition. In my view, he is permanently disabled. Treatment is likely to lessen his affective distress and his preoccupation with traumatic events. However, his general stress tolerance is substantially reduced and this fact places major limitations on his capacity for future work. In many regards he had established a way of practising the law which meant that he could adapt to his underlying disabilities of sustained attention and concentration. However, the demoralisation and the loss of his role as a legal practitioner have further exacerbated his condition and it is unlikely that he would be able to re-establish himself in this position. Mr McKenzie is also vulnerable for future life stresses. At these times his condition is likely to worsen and his depressive symptomology is vulnerable to exacerbation at times of future loss. Summary On the basis of my assessment, Mr McKenzie has suffered from a posttraumatic stress disorder and a major depressive disorder. He had significant symptoms of hypervigilance, sleep disturbance and depressed mood at the time of his retirement from the NSW Police Force. These symptoms have progressively escalated with time, particularly since 2000. The failure to provide treatment in 1990 represents a significant loss of chance for Mr McKenzie. 114 In Professor McFarlane's supplementary report dated April 2009, he was asked to clarify a number of points in his previous report. Mr McKenzie had been interviewed again in March 2009 and stated that, in July 2005, he had been contacted by the Law Society of New South Wales about the transfer of money from his trust account to his personal account and had been interviewed for approximately two days, together with an inspection of his files. Mr McKenzie said that there did not appear to be any irregularities and he believed that the matter had been resolved but the Law Society of New South Wales contacted him again in September - October 2008 regarding the same matter. Mr McKenzie said that at the date of 2007 consultation with Professor McFarlane, these matters were two years old and he was not worried or concerned about them because he believed there was no illegality or difficulties and he had not ruminated on the matter. Further, as he was no longer practising as a solicitor, this matter was of no particular concern to him. 115 Professor McFarlane was then asked for his opinion whether Mr McKenzie was fit for the duties of his office as a police officer when he resigned in March 1990. Professor McFarlane had been informed that, in the present proceedings, it appeared to be alleged that Mr McKenzie's mental condition as at 2004 was caused by his problems with the Law Society of New South Wales rather than his earlier police service. Taking those matters as background, Professor McFarlane expressed his opinion that, when Mr McKenzie left the Police Service in 1990, he was fit for duties as a police officer "in the sense that he had an ongoing capacity for work". Given that he was complaining of sleep disturbances, abusing alcohol and feeling depressed, there was a significant risk of him of continuing with that work. The probability of further traumatic exposure would have placed him at a substantial risk of his condition worsening and further, it would have been advisable for him to have some type of care at that time for treatment of his alcohol abuse and depression. Professor McFarlane concluded: In summary, he had significant residual capacity at that time but was clearly an individual who was at risk 116 Professor McFarlane was also asked to consider if his opinion would be altered by the fact that, in July 2005, there was a disciplinary inquiry by the Law Society of New South Wales in relation to Mr McKenzie's practice. Professor McFarlane said that his opinion had not changed because of these facts and in particular when these professional matters arose in 2005, Mr McKenzie's difficulties had already become manifest in terms of his capacity to practice because of underlying post-traumatic stress disorder, major depression and alcohol abuse. The "temporal association" did not argue for the inquiry by the Law Society of New South Wales as being a "substantial cause" It was significant that Mr McKenzie did not believe that he had done anything wrong and believed he had resolved the matter with the Law Society. Moreover, the symptoms he complained of, namely, his intrusive memory and nightmares had nothing to do with the Law Society but focused upon his specific experiences as a police officer. Having regard to the matters investigated by the Law Society, "it would be highly improbably that such an inquiry would be the cause of the degree of psychiatric disability complained of by Mr McKenzie". Professor McFarlane continued: A simple audit of the New South Wales Law Society's records would give some indication of the probability of a practitioner becoming psychiatrically disabled simply as a consequence of such an inquiry. A far greater probability is that practitioners who are suffering from a psychiatric disorder are subject to complaints because of their work related impairments and difficulties performing their role as a solicitor adequately. This explanation is pertinent to the matter of Mr McKenzie forwarding the file about the complaint by a client against another solicitor because of his inability to manage the matter. Individuals will report stresses that are a significant cause of stress. To claim that he deliberately withheld information from Dr Akkerman and Dr Delaforce which was a substantial cause of his symptoms is improbable. Individuals do not have nightmares about police related matters due to an investigation by the Law Society. Hence, the further matters that have been brought to my attention do not change my opinion in any substantive way. 117 In a further supplementary report in May 2009, Professor McFarlane gave consideration to a query raised by Mr McKenzie's solicitors. The query raised was Professor McFarlane's opinion, on the balance of probabilities, whether as a result of the injury suffered at the time of Mr McKenzie's resignation from the Police Service he was unable, without the risk of further injury, to engage in employment as a police officer because of the nature of that employment. Professor McFarlane said his report dated April 2009 commented on the fact that, at the time of Mr McKenzie's resignation from the Police Service, he was a person who had a significant residual capacity for work which he demonstrated by taking up a career as a solicitor. While he was continuing to work in the New South Wales Police Service at the time, it was his opinion that his decision to leave the Police Service played a significant role in decreasing his risk of further injury. If Mr McKenzie had continued as a police officer, further traumatic incidents would have been an inevitable part of him performing that role and placed him at a significant risk of further injury. In particular, he had already become symptomatic as a consequence of these exposures and by the process of sensitisation, further traumatic events would have been associated with a substantial risk of a further worsening of his condition. Professor McFarlane was not required for cross-examination. 118 Dr Anthony Christie is an occupational physician and a medico-legal consultant. In late April 2008 he supplied a report to the State Super SAS Trustee Corporation in relation to Mr McKenzie, Dr Christie understood there was an application for a Certificate of Incapacity stating "PTSD and depression". He understood that Mr McKenzie as an ex-police officer who resigned from the Police Service in March 2009 and now claimed, at that time, he was unable to carry out his full police duties by reason of PTSD and depression. Dr Christie then considered a number of reports supplied in relation to this matter. He noted that Dr Roberts did not consider that Mr McKenzie was suffering from a psychiatric disorder and although he considered a diagnosis of PTSD, he rejected that diagnosis because of insufficient evidence of any incident. Dr Akkerman based his opinion on consultations between June 2005 and October 2006 and considered that Mr McKenzie was suffering major depression and PTSD and the condition arose in 1990. Dr Delaforce considered that Mr McKenzie suffered PTSD and major depression and considered that his psychiatric condition began in the late 1980s. Dr Delaforce's opinion was not altered by the disclosure that Mr McKenzie ceased legal practice as a result of professional misconduct. Mr R de Bakker based his opinion on consultations between November 2004 and November 2005. He considered Mr McKenzie was suffering from PTSD and major depression originating from 1990 and that he had a poor prognosis for recovery. Professor McFarlane considered that Mr McKenzie was suffering post-traumatic distress disorder and a major depressive disorder and had been symptomatic since 1990. He considered Mr McKenzie was permanently disabled. Professor McFarlane significantly dealt with and disagreed with the reports of Dr Roberts and considered the reports of Dr Akkerman to be brief and historically inadequate. After making this analysis, Dr Christie then stated: With the exception of Dr Roberts the psychiatric opinions on this file are otherwise unanimous in that Mr McKenzie suffered a disabling psychiatric condition from 1990 that would have rendered him incapable of full police duties from that time. I believed that in accepting those opinions, Mr McKenzie is entitled to a Certificate of Incapacity stating PTSD and major depression. Dr Christie was not required for cross-examination. 119 Dr Robert Delaforce was a forensic psychiatrist who, in May 2007, had supplied two reports to SAS Trustee Corporation regarding Mr McKenzie. In early May 2007 Mr McKenzie attended Dr Delaforce's office for an interview and approximately one week later had a telephone interview with him. He told Dr Delaforce that becoming a legal practitioner was not the reason for starting sick leave and resigning from the Police Service. In 1987 a new merit system was introduced rather than seniority and so it was important to undertake further study to increase the likelihood of gaining promotion. In 1987, because of that change, Mr McKenzie commenced his legal studies with the initial intention that those studies would take him to the rank of Inspector or Superintendent. Approximately 90 per cent of his legal practice was conveyancing, a field chosen by Mr McKenzie because it was the least stressful work. He spoke of work at other locations and firms and making "unbelievable money as a locum" where he worked only about one-third of the time, therefore enjoying reduced hours and a better lifestyle but no loss of income. In January 2002 he had purchased a practice at Maclean and travelled from Port Macquarie on Monday and returned on Friday. He stayed at a motel run by a former police officer and two or three times a week had a meal with the officer's family. He continued performing mainly conveyancing work but because of his health problems, he sold the practice in December 2003 or January 2004 stating that the last six months were very difficult. During 2004 he lived off his employment savings and he received the Centrelink New Start Allowance at the end of 2004. Because of continued medical sickness certificates in 2005 and 2006, he was ultimately placed on a disability support pension because of "PTS and depression". 120 In relation to his police work, Mr McKenzie recounted some of his more stressful experiences, including: finding the charred remains of a child as a result of a fire; during the course of a search, the struggle with a man who had a concealed firearm in his bed; and, the siege at Guyra with much gunfire and where he had feared for his safety because of the inexperience of police officers in that situation. Mr McKenzie also spoke about horrific accidents he had witnessed where only at the last minute he found an injured passenger in a car about to be towed away. 121 Mr McKenzie said there was a final problem during the last few months of his police service, described as the "catalyst" acting on the accumulated effects of other stressors resulting in Mr McKenzie seeking sick leave in 1989. This was the situation where the head detective had asked him to conceal the true level of crime statistics that Mr McKenzie had refused to do. Thereafter, there was a strained relationship with the head detective and he regarded himself as being given the worst type of work. The main reason for beginning sick leave in 1989 was the stress symptoms during the previous 18 months. Related to those matters was his Hurt-on Duty-claim and then his resignation but not a medical retirement in March 1990. He said he did not know the result of his Hurt on Duty claim. In approximately 2005 he was advised that he could still make a claim related to his 1989 - 1990 situation. He did make such a claim because his mental health had markedly deteriorated from 2003 and in December 2003 or January 2004, he had ceased his self-employed work as a solicitor and subsequently he was unable to work. 122 When asked what injuries were claimed to have contributed or caused the medical condition resulting in his incapacity and his resignation from the Police Service in 1990, Mr McKenzie identified work stress and specifically post-traumatic stress, anxiety and depression. He said he had not persisted with his Hurt-on-Duty claim at the time because he just wanted to get police work as quickly as possible. He was aware that other police had a stressful time fighting their Hurt on Duty claims and he had not sought advice from the Police Association. Dr Delaforce noted that therefore his quick exit by resignation and not persisting with his claim meant that his medical condition was not actually diagnosed beyond work stress. Dr Delaforce enquired about significant lifetime stresses and Mr McKenzie gave him the examples referred to earlier. The only significant problem was secondary to his worsening mental health from 2003, his inability to continue to work and his wife leaving him. 123 In relation to his psychiatric history Mr McKenzie said that, for approximately 18 months prior to starting sick leave in late 1989, he had the following symptoms: knowing that he was losing his grip on his work; everything was getting to him; anxiety when talking to suspects; worrying about being involved with firearms; being very nervous at work; excessive worry about work; being too nervy and stressed to continue the work; and, binge drinking. 124 Mr McKenzie informed Dr Delaforce that he kept thinking about distressing incidents during his police career from approximately 1988 and identified a number of the incidents referred to earlier. Since then, such incidents had continued to trouble him especially since 2003 when they occurred daily. Since the late 1980s he only had occasional dreams of troubling police work incidents but since 2003, they had occurred approximately twice a week. Since the 1980s he withdrew from involvement with others. He improved slightly after he stopped police work but then the symptoms became much worse since 2003 to the extent that he avoided social contact. He spoke of avoiding school award nights and describing a perfect day as sitting inside in the dark behind closed curtains and blinds. This was sometimes associated with crying. He felt more comfortable sitting in the dark. For the past 18 to 24 months he selected the quietest time to shop to reduce the likelihood of social contact. Since the late 1980s he had continued to avoid talking and thinking about police work and generally avoided police. Between 2002 and 2004, at monthly intervals, he would meet two police officers on leave for a meal following Hurt on Duty claims. They consumed sufficient alcohol to become intoxicated. Since the 1980s he had problems with excessive irritability and angry outbursts and in 2003 it especially became a problem when it was directed to his children. 125 From the time of Dr Delaforce's report in 2007, Mr McKenzie still had difficulty sleeping and was described as being worse in recent years. Mr McKenzie dreaded going to bed because even medication would not help him to sleep. Since the late 1980s his wife had noted and complained that, to ensure his safety, he would excessively check everybody in the room. Difficulty concentrating continued since the late 1980s and contributed to him deciding to sell his legal practice because it was too risky when he was dealing with properties worth $1m. Depressive symptoms were present since the late 1980s, followed by some improvement until 2003 when it became more severe. Since the late 1980s, Mr McKenzie had no more than two months without depressive symptoms. Since 2003 he had prominent depressed mood, loss of interest and pleasure, insomnia and reduced energy. In the late 1980s he stopped exercising and gained weight but since early 2006, he had lost 20 kilos because he did not have any appetite and forced himself to eat. Since 2004 he had recurring thoughts of suicide. In April or May 2007 he had come close to suicide when he connected a hose from a motor vehicle exhaust to the interior of the vehicle and turned on the engine. He realised that he had not yet signed papers relating to his father's death and the distribution of money to Mr McKenzie's children and so he aborted the attempt. 126 On most days since the late 1980s he had been excessively worried about everything but since 2003 it had become worse. His wife regarded him as being "the biggest worrier". The worry was difficult to control and was associated with increased sleep problems, irritability and restlessness. Because of his irritability and behaviour he alienated some people. He repeatedly told Dr Delaforce that he wondered why his symptoms deteriorated from 2003. He had no current leisure activities but had a good relationship with his children. In the late 1980s he attended his general practitioner, Dr Breusch, who issued medical certificates because of the effects of stress but at that time no psychiatric medication was prescribed. In 2004 his Port Macquarie general practitioner, Dr Young, for the first time prescribed psychiatric medication. Since 2004 he had used the sedative Temazepan and since 2006 he had used Mirtazapine, an anti-depressant sedative. At the end of 2004, Dr Young had referred him to Mr de Bakker, psychologist, for ten weekly counselling sessions. He was then referred to a psychiatrist, Dr Akkerman. In 2005 he continued treatment to the present time. Mr McKenzie said that, between the late 1980s and 2004, he would binge drink alcohol up to a weekly session of approximately 20 standards drinks but then he may not drink for up to two months. This continued from 2004 but by December 2006 he ceased consuming alcohol. 127 On examination, Dr Delaforce observed Mr McKenzie to be distressed and tearful when he talked about how he had lost everything when, at the end of 2003, he had to sell his legal practice and stop work because of his mental health problems. He repeatedly expressed his bewilderment at why, from 2003 when at that stage his marriage and work were going reasonably well, his symptoms were worse than ever. 128 Mr McKenzie had supplied a number of documents to Dr Delaforce, including documents relating to his problems with the head detective at Armidale. He had also been provided with a report from Dr Akkerman in late October 2006. It was noted that Dr Akkerman's report provided similar details to those that Dr Delaforce had obtained from Mr McKenzie. Dr Delaforce noted Dr Akkerman's diagnosis of major depression and post-traumatic distress disorder. 129 Dr Delaforce then supplied answers to a number of questions raised by the SAS Trustee. Dr Delaforce stated that Mr McKenzie was currently affected by a medical condition and it was a medical condition that, at the date of resignation, Mr McKenzie claimed caused or contributed to his incapacity to discharge his duties as a police officer. The precise medical condition now affecting Mr McKenzie was diagnosed according to DSM-V-TR criteria, namely: post-traumatic distress disorder, mild, chronic; major depressive disorder, single episode, mild, chronic; post-traumatic distress disorder and major depressive disorder continued since on-set in the late 1980s. Alcohol abuse was present between 2004 and December 2006 and may have been present from the late 1980s. 130 When asked to list all the probable causes of the medical condition, Dr Delaforce stated that, from the information available, only his police work caused the onset of a post-traumatic distress disorder and major depressive disorder and perhaps alcohol abuse in the late 1980s. After some improvement when he ceased police work in 1990, he deteriorated in 2003 to his worst ever state. Dr Delaforce said that some of the injuries or incidents, employment duties or pastimes or pursuits undertaken by Mr McKenzie since he resigned from the Police Service, alone or combined with the passage of time or aging process, might have caused the current medical condition. Those injuries or incidents that may have caused or contributed to the current medical condition were identified by Dr Delaforce in the following way: since 1991 he had been working almost totally in conveyancing and being relatively easy legal work, this helped him to function mentally. His deterioration since 2003 may have resulted from his monthly meetings with police officers since 2002 and 2004 which likely stirred up distressing memories of Mr McKenzie's police work. Also, in 2002 and 2003, he worked away from his home at Port Macquarie during the week where he ran his legal practice in Maclean and that was probably a significant stressor. Dr Delaforce observed that the cause of post-traumatic stress disorder and major depressive disorder could vary and therefore the natural course for Mr McKenzie could have just been deterioration in 2003. Increasing age could sometimes increase the severity of the conditions. His excessive use of alcohol related to his police work stress since the late 1980s may also have contributed. Dr Delaforce's opinion was that Mr McKenzie's current mental disorder would probably be permanent and his prospects for recovery were "very minimal". He would need to continue permanently with psychiatric treatment, including counselling and monitoring for his suicide risk, together with psychiatric medication. 131 Dr Delaforce stated that it was probable that Mr McKenzie was incapable of discharging full operation duties at the date of his resignation. In explaining how this came about, Dr Delaforce referred to the dangerous detective work performed by Mr McKenzie and how it was psychologically distressing because Mr McKenzie was also a hostage negotiator and a member of the Special Weapons Squad. He then spoke about his SWOS work and two very stressful incidents, involving firearms, that occurred during the late 1980s where errors would have resulted in injury or death to him and other police officers. These incidents were particularly relevant to his symptoms as they were reported to Dr Delaforce and were present in the late 1980s. Particularly relevant was the worry about using firearms and Mr McKenzie's feeling that he was losing his grip on his work. He had made what Dr Delaforce regarded as a very appropriate reference to the "catalyst" acting on the accumulated effects of his stressful police work, his problems with the head detective in Armidale that finally pushed Mr McKenzie to being sick leave and then resign from the Police Service in 1990. At the end of the 1980s, Mr McKenzie had reached the stage of being unable to confidently and safely undertake his police duties. He was particularly troubled with confronting potential violent situations, especially where it may involve firearms. Because of problems with the head detective at the final stages of his employment, Mr McKenzie was not even comfortable working in his Armidale office and overall was unable to undertake operational duties. 132 A medical condition being post-traumatic distress disorder, major depressive disorder and alcohol abuse or problems with excess alcohol caused Mr McKenzie's incapacity at the time of his resignation. When asked to explain how the medical condition caused Mr McKenzie's incapacity, Dr Delaforce said that Mr McKenzie's fears that he would have to confront or actually confront dangerous situations in his police work, especially when firearms were involved, reached the stage where that fear resulted in too much anxiety and doubt about his capacity to be able to safely cope with the situation and all he wanted to do was avoid those situations. That was the essential aspect of his post-traumatic stress disorder. The symptoms of his major depressive disorder had made it all the harder for him to be able to continue his police work. The only probably cause for this medical condition had been identified was Mr McKenzie's stressful police work. 133 Dr Delaforce was asked if Mr McKenzie's medical condition had deteriorated since he resigned due to any injury incident or the passage of time, how was Dr Delaforce satisfied that Mr McKenzie was incapable of discharging full operational duties when he resigned due to a medical condition? In answering this question Dr Delaforce said that, after the on-set of the mental disorders in the late 1980s, they improved after he left the Police Service in 1990 and when he undertook less stressful conveyancing legal work until the continued deterioration since 2003. Post-traumatic distress disorder and major depressive disorder could have a variable course. DSM-1V-TR stated about the course of post-traumatic distress disorder: In some cases, because it is characterised by a waxing and waning of symptoms. Symptom reactivation may occur in response to reminders of the original trauma, life stressors or new traumatic events. 134 Mr McKenzie's Hurt-on-Duty injury claim was probably the cause or a contributor to the medical condition found by Dr Delaforce. When asked to say when the injury occurred, Dr Delaforce stated that the injury initially occurred sometime throughout Mr McKenzie's police work between 1979 and when he went on leave in 1989. The two important incidents he referred to involving firearms occurred in 1987 and 1989 and about that stage he also had problems with the head detective. In explaining in what way and to what extent the Hurt-on-Duty injury contributed or caused the medical condition, Dr Delaforce said that the features of post-traumatic stress disorder automatically explained how that resulted from workplace stressors. Major depressive disorder was known to also result from such conditions and was also a known mental disorder occurring in association, "comorbid", with post-traumatic stress disorder. Alcohol excess and alcohol abuse was especially likely to occur with post-traumatic stress disorder. The information that Dr Delaforce had totally explained how Mr McKenzie's police work contributed to his mental disorder. Dr Delaforce's only concern is why Mr McKenzie did not continue with his Hurt-On-Duty claim and resigned instead. However, he eventually accepted the explanation that Mr McKenzie just wanted to cease police work as quickly as possible and avoid the stress of fighting a continued claim that he was aware other officers had endured. It was also possibly relevant, although he did not report it as a reason for resigning, that his relationship with the head detective was an ongoing problem and was the final catalyst for making the claim. Mr McKenzie may have feared making an issue of his claim because of reprisals. 135 Dr Delaforce supplied a supplementary report in late May 2007. He had been provided with copies of documents from the Legal Services Commissioner and a New South Wales Law Society determination that Mr McKenzie, as a legal practitioner, had breached regulations and there had been a finding of statutory professional misconduct. A Receiver had been appointed to his practice. Dr Delaforce noted that Mr McKenzie gave him "absolutely no indications whatsoever of those details". Instead, he referred to increased mental health problems in 2003 contributing to his selling the Maclean legal practice in late December 2003 or early January 2004. Mr McKenzie said he had difficulty concentrating and that is why he could not take the risk of conveyancing of million dollar properties. It was relevant that Mr McKenzie highlighted his wonder and bewilderment as to why his mental health had deteriorated from 2003. Dr Delaforce said it was obvious that Mr McKenzie had misled him and apparently deliberatly so by not providing this information but also in highlighting his inability to understand why his mental health deteriorated in 2003. Dr Delaforce assumed but could not confirm a connection between the reported deteriorating mental health in 2003 and the misconduct behaviour referrable to his professional practice. It was noted that Mr McKenzie had also avoided giving information about the professional misconduct finding to Dr Akkerman. Avoiding giving information as important as professional misconduct findings raised the issue of reliability of other information given to Dr Delaforce by Mr McKenzie. The reasons he provided for resigning from the Police Service in 1990 were of particular relevance. If the details provided to Dr Delaforce and contained in his report were correct, then they were "convincing reasons". Dr Delaforce, however, raised a query about whether Mr McKenzie was just leaving the Police Service because he was studying to be a legal practitioner and therefore just wanted a career change. Nevertheless, his explanation for undertaking legal studies seemed reasonable. Dr Delaforce was also surprised that, at the time, Mr McKenzie did not know the outcome of his Hurt-on-Duty claim. 136 Dr Delaforce was then asked to reconsider his opinion that Mr McKenzie's resignation from the Police Service in 1990 was due to his incapacity to perform the full duties as a police officer because of post-traumatic distress disorder, mild, chronic and major depressive disorder, single episode, mild chronic. Dr Delaforce answered in the following way: Because I cannot automatically assume that because the details Mr McKenzie gave me about the ending of his legal practice in 2003 or 2004 were misleading, then he misled me about the reasons for exiting the New South Wales Police in 1990. I have no details to change my earlier opinion and can only raise the now real issue of the reliability of the information he provided. Therefore, I reaffirm my opinion that when Mr McKenzie resigned from the NSW Police on 11 March 1990 he was incapable of performing the full duties of his office due to post-traumatic stress disorder, mild, chronic and major depressive disorder, single episode, mild, chronic. 137 In oral evidence, Dr Delaforce agreed that the opinion expressed in his first report arose from the two conversations he had with McKenzie and was largely based on the history given by Mr McKenzie. He understood the question before the Commission was whether or not Mr McKenzie, at the time of his resignation from the Police Service in March 1990, suffered from a infirmity of body or mind which made him, in effect incapacitated for the duties of his office. Dr Delaforce had distinguished between complaints Mr McKenzie said were in existence in 1988 or 1989 and those that were made from 2003 onwards. He perceived the 2003 complaints to be an indication of a deterioration of the condition. 138 Dr Delaforce was asked to assume that, from mid-1989 onwards, Mr McKenzie regularly vomited before going to work and on that assumption he said that response was consistent with the complaints recorded in the interview and was consistent with people having a lot of work stresses. It was not an uncommon complaint that, before going to work, they felt sick to the stomach to the point of vomiting. Mr McKenzie had also complained of suffering from reduced concentration leading up to leaving work in 1989. He had also complained of losing his people skills when dealing with victims and suspects. From mid-1989 or perhaps later he began to hate the Police Service and those complaints were consistent with the complaints made by Mr McKenzie in is interviews with Dr Delaforce. 139 On the assumption that Mr McKenzie was avoiding firearms and carrying firearms and complained of being unable to perform paperwork and ignored paperwork and avoided going out on jobs that were part of the duties of a detective and was able to delegate those jobs to others and that, by the time of his resignation he said he had hit rock bottom and had lost his grip completely, those matters were consistent with Dr Delaforce's understanding of the complaints made by Mr McKenzie during his interview. 140 On the assumption that Mrs McKenzie had given evidence that, in 1989 and 1990, Mr McKenzie appeared to be more withdrawn, more stressed and appeared to have the weight of the world on his shoulders, was aggressive and short tempered and seemed uneasy and very highly strung, those matters were all consistent with Dr Delaforce's understanding of the condition suffered by Mr McKenzie at that time. Those matters were consistent with Mr McKenzie suffering from post-traumatic stress disorder and a major depressive disorder in 1989 and 1990 and Dr Delaforce said that is why he was comfortable making that diagnosis. 141 At the time of seeing Mr McKenzie, Dr Delaforce had a number of reports from Dr Breusch who had certified that Mr McKenzie appeared to suffer from work related stress problems and was unfit for duties. Dr Breusch maintained that opinion in November and December 1989 so that for two and half months from 9 September 1989 to 31 December 1989, Dr Breusch had certified him as unfit for duties. Dr Delaforce accepted that those reports indicated that Mr McKenzie's symptoms were "pretty substantial". Dr Breusch was qualified well above what was necessary to practice as a general practitioner and given what Mr McKenzie had told him of his symptoms at that time, those matters comforted Dr Delaforce in his own opinion about Mr McKenzie. It was important that Dr Breusch expressed that opinion and it was obviously based on the symptoms given at the time by Mr McKenzie. 142 Dr Delaforce had not seen reports prepared by Dr Roberts who, following a consultation in late November 1989, had formed the view that Mr McKenzie did not suffer from a psychiatric illness. Dr Delaforce was asked to assume that, during that consultation with Dr Roberts, Mr McKenzie made a number of complaints about his wellbeing. Those complaints included suffering sleep disturbance, nervousness in situations such as the interview with the doctor; nervousness from being intense and experiencing the shakes; feeling good when away from work but on other days feeling depressed to the point of being physically ill; suffering from depression, meaning that he was feeling down and a feeling that was difficult to describe but he was definitely not happy; and, that he had a feeling of being sick associated with actual vomiting. All of those complaints were consistent with Dr Delaforce's understanding of Mr McKenzie's condition as at the end of 1989. The Frisium he was then taking was a tranquilising drug. 143 Mr McKenzie informed Dr Roberts that he had seen Dr de Groot a month earlier who had told him he should resign if he did not like the Police Service and could not handle it. Mr McKenzie told Dr Roberts that he had been vomiting before he saw Dr Breusch in September 1989 and also informed Dr Roberts of the difficulties with his superior officer who had asked him to falsify crime figures. He had said that the work situation was not good and he had begun hating going to work, complained to Dr Roberts that there was no way out of his current situation but to resign and he did not want a pension. If asked if any of those matters affected the diagnosis that Dr Delaforce had made, the doctor replied that they added to the diagnosis and they were consistent with his diagnosis. Those complaints strongly suggested a "reasonable probability at least" that there was a mental disorder there but there were also other symptoms but they alone were very significant in themselves. Those symptoms suggested a mental adjustment disorder with mixed anxiety and depression being in response to work stressors. Those complaints and others reported at the time of seeing Dr Roberts were certainly sufficient to begin sick leave and to stop work as a police officer. Together with the information that Dr Delaforce had obtained, those matters were sufficient to make Mr McKenzie unfit for duty. 144 Dr Roberts had not recorded any complaint of stresses consistent with post-traumatic distress disorder. Dr Delaforce thought that was an appropriate comment to be made by Dr Roberts because he noted as the symptoms were read that there was nothing indicating post-traumatic distress disorder but enough to indicate a good chance, even a probability of a mental disorder. Everything suggested that Mr McKenzie was unwell but all of those symptoms were not pointing to post-traumatic distress disorder. If a police officer had those symptoms then Dr Delaforce would have continued to ask specific questions to elicit anything related to post-traumatic distress disorder which were not necessarily volunteered. The fact that additional matters were not volunteered did not mean that there was nothing to complain about as not everything was recounted. The manner in which a doctor conducted the interview would determine how to obtain those additional matters. The totality of the symptoms outlined by Mr McKenzie to Dr Roberts and Dr Delaforce led him to diagnose post-traumatic distress disorder. Mr McKenzie told him about particular incidents that had caused him real concern. Mr McKenzie had not been told about one of the last incidents causing Mr McKenzie concern, namely, that he aggravated a situation as a negotiator while trying to deal with a person armed with a knife who was acting violently and in a threatening manner. He thought he had not followed the proper protocols and thought he had "lost it" and the capacity to deal with the offender and he felt he had potentially put other lives at risk as well as his own. Dr Delaforce said that, because of that incident and other stressors Mr McKenzie experienced in his police work, he could not cope with a situation like that where there was a risk of injury or death and he had avoided that situation and it was totally understandable. It was similar to the complaint he had made about avoiding going to jobs. Not uncommonly, police officers told the doctor that they just could not face another job and Mr McKenzie started to face it but not surprisingly, had to get out of police work. 145 In cross-examination Dr Delaforce said that, although he was informed of a number of other incidents, it was significant that Mr McKenzie did not tell him about the incident on 3 September 1989 occurring just before he proceeded on sick leave. While it was significant, it did happen in the sense of his failure or embarrassment and because Mr McKenzie was not able to cope with it and did not want to talk about it then possibly the interview finished without that incident being referred to. Mr McKenzie was able to recount other potentially life threatening and violent situations including another incident with a shotgun, but it was not until he experienced difficulties with his superior officer that the incident was mentioned. Dr Delaforce regarded the personal difficulties with his superiors as being the climax of Mr McKenzie's symptoms and they were all too much and when that problem was added, he should have been able to look to support from a senior work colleague. It was a concern to Dr Delaforce that Mr McKenzie had not mentioned the 3 September 1989 incident because that was the "absolute trigger". That was the "go now, get out now" event. 146 In his primary report, Dr Delaforce thought the most significant issue was Mr McKenzie's worry about being involved with firearms. 147 It was possible to have some symptoms consistent with criteria for post-traumatic stress disorder but not to have the full disorder. From what Dr Delaforce had seen in 2007, Mr McKenzie had sufficient features for post-traumatic stress disorder since the onset in the late 1980s and it was therefore worse from the 2000 episodes. Dr Delaforce was relying on the history given by Mr McKenzie for the conclusion dating back from the 1980s that he would have the full-blown disorder. For the purposes of diagnosing post-traumatic disorder it was significant whether the person was functioning at work. Dr Delaforce took the view that Mr McKenzie was under sufficient stress to cease work as a police officer. 148 Dr Delaforce was asked to assume the following matters: that he met his third wife-to-be in approximately 1988; for the 18 months prior to starting sick leave, Mr McKenzie was going out with his soon-to-be wife; Mr McKenzie was a very sociable and outgoing person; he was very compassionate and considerate of others; he had an ability to relate well with people from all backgrounds; with his soon to be wife they went to social events, met police friends or socialised with work colleagues and visited her family in Glenn Innes; Mr McKenzie was described as then being charming and very personable and appearing at ease with people and readily engaged in conversation. Dr Delaforce expected that his soon-to-be wife would have noticed something during that period. 149 Mrs McKenzie said that, in 1989 and 1990, her husband did not talk to her about his problems, he was not as easy going as usual and was not feeling well at all. He appeared to be very highly strung and worked more than usual, he drank to excess two or three times per week; often passing out. He was short tempered and moody and Dr Delarforce said it was only after leaving the Police Service those matters could be and might not be consistent with a work confrontation with a senior officer If there was anything that could bring on symptoms of worry, depression and stress it is a new relationship and a new interest and he thought that Mrs McKenzie may have been a fraction slow in picking up the problems or he did not want to initially put her off in case she turned away from him. The key factor was that she reported that there was nothing he indicated as raising problems of coping with work but he eventually did so. Dr Delaforce had been provided with information that Mrs McKenzie noticed that he did deteriorate and he thought that was the key. It was surprising that Mr McKenzie had not mentioned work problems in his letter of resignation. Dr Delaforce's experience was that police offices knew very well that if they were under stress they were to make a record such as a Hurt-on-Duty claim and it was surprising that nothing was said. 150 In later 1989, Dr Breusch had referred to Mr McKenzie's stress but that was also consistent with police work and applied to many people. The fact that he took time off work for stress at work did not indicate one way or the other whether he had a diagnosis of psychiatric illness. The matters raised with Dr Roberts were suggestive of mental disorder but did not necessarily fit the criteria for post-traumatic disorder. Because Mr McKenzie was a police officer, Dr Delaforce was of the opinion that there should have been further questioning of whether there was a post-traumatic distress disorder. He had seen many police officers and when he reflected on the various stressful situations they faced (and some were absolutely traumatic incidents) if they do not report them, it was essential to take the lead and checkout those matters with them. It was an occupational hazard for police officers. Dr Roberts, on what he was told, might have diagnosed adjustment disorder and a depressive disorder and that could be related to the difficulty with the senior officer. Dr Delaforce would have asked more questions because one of the diagnostic criteria for post-traumatic stresses disorder is avoiding thoughts and avoiding trauma. It would have been surprising if nothing was led from Mr McKenzie about the traumatic experiences and that they continued to return. Often police officers would speak about their traumatic experiences because they knew it had changed them. It was therefore surprising that more information was not provided or led by Dr Roberts. The difficulty with a superior officer was a stressful situation and was enough for a career change. 151 Dr Delaforce expected from police officers with some psychiatric infirmity as at 1990 to have continued thereafter with some degree of permanency. That would continue with some degree of depression and Mr McKenzie had told him that occurred. Although Mr McKenzie said he had improved slightly, his qualification as a solicitor, pursuing professional opportunities and his wife reporting that he was enjoying his new profession and regularly socialising, including moving to Coonamble in 1993 and becoming an officer of the Jockey Club indicated more than a slight improvement. That would cause Dr Delaforce to doubt that Mr McKenzie did have a post-traumatic stress disorder and a major depressive disorder but he still had to accept that he had those conditions from the late 1990s and whether it continued on beyond the early 1990s when he was socially active and happy in his work did not sound like a substantial depressive symptom. However, with post-traumatic stress disorder one characteristic was that sufferers avoided people, tended to stay at home, undertook minimal activities and here Mr McKenzie was working as a solicitor. Those facts caused Dr Delaforce much doubt about a continual mental disorder until a deterioration in approximately 2003. 152 Bankruptcy and financial difficulties could give rise to a depressive disorder and Mr McKenzie had made himself bankrupt. Dr Delaforce stated that bankruptcy was very high on any list of stressors and he did not recall being told about that event and he regarded it as a major stressor. It was extremely unlikely that bankruptcy would not cause stress. It would appear from his wife's evidence about his drinking to excess, especially in 1996 and being very displeased with Coonamble and his friends there, that at this time Mr McKenzie's life had turned badly, with an excessive consumption of alcohol and not wishing to socialise. 153 Dr Delaforce was asked whether the occurrence of bankruptcy and Mr McKenzie's failure to provide that history, including the history of professional difficulties, caused him to reconsider his opinion about Mr McKenzie's condition. Dr Delaforce said that new history required a reconsideration of post-traumatic stress disorder and major depressive disorder that continued from the late 1980s up until the deterioration in 2003. There was much to indicate that one or both of the mental disorders ended and he deteriorated at the end of 1990s but because of his bankruptcy and related problems and then one had to look at why he deteriorated in 2003. He may have developed his psychiatric symptoms after 1988 when the bankruptcy occurred. Because Dr Delaforce was not told a number of important things, it caused him to reconsider his diagnosis going back to 1989 and 1990. That diagnosis was based upon the reliability of information given to him by Mr McKenzie. 154 If Mr McKenzie was just having problems at work, disliked work and it was causing stress, it might be more than just a dislike and there may be symptoms when under stress, but they may not be symptoms. Enjoying a better life after leaving the Police Service might indicate that it was a simple workplace dislike that was troubling Mr McKenzie but he could have applied for a transfer. In Dr Delaforce's experience that was commonly done and the officer kept their job. While it was very stressful to be in Mr McKenzie's situation of being in conflict with his superior officer about a requirement to falsify crime statistics, Dr Delaforce did not think that would be an incapacitating issue year after year up until he was seen in 2007. Once away from that situation and that stressor, there was a good prognosis. Based on Dr Roberts' information, if Mr McKenzie had been offered a position in another station in New South Wales, Dr Delaforce thought that Mr McKenzie would have been fit for police duties as at 1990. 155 In relation to the information given by Mr McKenzie to Dr Roberts, Dr Delaforce expected that Dr Roberts would "lead" in relation to traumatic incidents and ask questions to elicit a response. Sometimes patients would have insight and when Mr McKenzie spoke to Dr Delaforce about the incident involving firearms they were highly traumatic situations. It was surprising that he did not tell Dr Roberts about those matters but it may be that he did not recall. In relation to the effect of bankruptcy, Dr Delaforce accepted that he would have to ask questions and examine the responses to diagnose Mr McKenzie's condition at that time because of that event but it certainly would have been highly stressful. 156 As a result of information recently obtained, Dr Delaforce was of the view that Mr McKenzie had achieved some improvement in his psychological wellbeing after he left the Police Service. With the information given to him by Mr McKenzie, on the balance of probabilities, Dr Delaforce was comfortable in confirming his diagnosis and he was still in that position when looking at those matters alone. 157 It was accepted by Dr Delaforce that it was fundamental to the performance of policing duties to carry a sidearm and therefore it would be very difficult for Mr McKenzie to perform those duties because he avoided firearms and had a fear of them. Also, it would make it difficult for him to perform those duties if he had difficulties performing his work, interviewing witnesses and suspects. If Mr McKenzie was suffering the difficulties he recorded, Dr Delaforce accepted that a transfer would not have cured the problems. If the whole picture was accurate, the problems were likely to recur. 158 Dr Delaforce's opinion was that, in the late 1980s, it was not unusual for there to be a mental disorder, a possible improvement and then something occurring or a recurrence and a new disorder arising. If a person had good, stress free periods then they improved and perhaps ended the mental disorders. It was not unusual for nothing further to arise. The bankruptcy in 1998 was very stressful and that would bring many people down or at least cause symptoms and the symptoms may amount to a mental disorder alone and there was nothing unusual about that. A later event, such as bankruptcy and the deterioration shown thereafter, might be linked to the earlier disorder and could bring it back. Having a major depressive disorder for sometime, at least from the late 1990s, meant there was a 50 per cent chance that even if it was overcome, there would eventually be another disorder. 159 Dr Delaforce had not been told that Mr McKenzie had informed Dr Roberts that he did not want a pension but he gave Dr Delaforce related information, namely, that he wanted to get out of the Police Service as quickly as possible. He had knowledge of colleagues who had made Hurt-on-Duty claims and faced years of contesting those matters. He was studying law and he just wanted to get out of the Police Service as quickly as possible and get on with his life. That was enough to explain to Dr Delaforce what he had done when he had been interviewed by Dr Roberts. Assuming that Mr McKenzie did have post-traumatic stress symptoms as at 1990, it was the usual course that those symptoms could fluctuate or wax and wane over a period of time until Dr Delaforce had seen him in 2007. The severity of symptoms may vary over time but with the number of police officers he had seen, they simply did not get over it and did not get better. It was uncommon to have a major depressive disorder as at 1990, have a good outcome within three years or less and working full-time as a solicitor but while it was not common and not expected, Dr Delaforce accepted that it could happen. Dr Delaforce continued to be concerned about the matters not passed on by Mr McKenzie but there was certainly contemporaneous material, including history reports from Dr Breusch and Dr Roberts, that were consistent with Mr McKenzie's story as to how he felt in late1989 and 1990. Dr Delaforce thought Dr Roberts could have obtained more information but he did not obtain it all and there was an absence of detail. 160 Dr John Roberts is a qualified psychiatrist who examined Mr McKenzie at the request of the Police Department in late November 1989. Dr Roberts reported that, when he asked Mr McKenzie in what way he was feeling unwell and what problems he had in regard to his health, he replied that he had suffered from sleep disturbance "but not a great deal more". He said that he was nervous when he was in a situation such as an interview and was nervous in relation to anything that had to do with being off work. When asked why, Mr McKenzie replied that he did not know except he would become very anxious under such circumstances. By referring to nervous, Mr McKenzie explained that it was the equivalent of being tense and that he would experience the shakes. When he held out his hand, Dr Roberts said there was no evidence that he was trembling. When asked to describe in greater detail how he felt when he said he was nervous, Mr McKenzie said it was the same feeling as he had before getting into a witness box. He said that, when he was away from the office, he felt good and there were days when he felt great but there were other days when he was depressed to the extent of being physically ill and vomited for no reason. When asked whether, apart from these complaints, he felt well, he replied in the affirmative and that he was fairly well but he also suffered from depression. Dr Roberts stated that, to feel fairly well, was inconsistent with any significant degree of depression and such statements were "clinically contradictory". When asked what he meant by the term "depression", Mr McKenzie replied that depression was the equivalent of "being down", that the feeling was hard to describe, that he was definitely not happy when he was depressed and he also had the feeling of being sick associated with actually vomiting. He mentioned that he took Frisium, a Benzodiazepine central nervous system depressant as a nocte medication. 161 When asked by Dr Roberts what he could and could not do, Mr McKenzie said there was not a great deal he could not do and that it did not affect him a great deal. Mr McKenzie referred to a physical effect of his condition in the morning but during the day it did not affect him. When asked what he was doing to pass the time, Mr McKenzie said that he had read that exercise was good for stress, he exercised daily and he gardened and read. He said there was nothing else. It was noted that Mr McKenzie had only seen one psychiatrist on one occasion, Dr de Groot, at Mr McKenzie's request. He had not seen any other specialist for the purpose of treatment. 162 As to the duration and aetiology of his current alleged disability, Mr McKenzie told Dr Roberts that he had gone on sick report half way through September 1989 and had seen his general practitioner because of problems at home, namely, throwing up before work. Despite these difficulties, and prior to ceasing work, he continued working for some months. Mr McKenzie told Dr Roberts he was second-in-charge in the Armidale detectives' office, he was the most senior operational detective and during his career with the Police Service, he had been involved in all fields of criminal investigation. During his 11 year career with the Police Service he had spent the first 18 months in uniform and the remainder in plain clothes. Dr Roberts said it was important diagnostically to note that, allegedly, the work was causing Mr McKenzie's current incapacity with similar work to that which he had been carrying out for over nine years. When asked, Mr McKenzie said that he believed his work situation was "involved" as a cause of his problems. He then recounted the difficulties he had been experiencing with his superior regarding a request to misrepresent the crime clean-up rate and how, because he refused to do so, he had been badly treated by his superior officer and placed under pressure. The pressure took the form of having to do work after returning to the station from court at 4.30pm despite the fact that other officers had nothing to do while he had been in court. There was constant pressure of this nature and Mr McKenzie said he was having problems at home but he did not talk about the request by the senior officer. The situation was not good and he had begun to hate the thought of going to work. He had not told other officers of the senior officer's request. Dr Roberts said that the conflict between Mr McKenzie and his superior, not being known to other officers in the workplace, meant that what was being assessed was simply an inter-personal conflict situation between two men. Mr McKenzie said that he had no way out of his current situation but to resign and that he was not after a pension and in the past he had wished for a career in the Police Service. 163 At a particular point in the interview, Dr Roberts attempted to elicit from Mr McKenzie evidence of his psychological "accompaniments" of anxiety, that is, such symptomology as would be present in someone who was suffering from significant levels of anxiety. The questions were posed in a leading manner and it was made clear they applied to the totality of his existence, from birth until the date of the assessment. Mr McKenzie denied he had any problems in relation to memory or concentration although these were commonly disturbed in significantly anxiety depressive states. He denied any chest pain, chest tightness or chest discomfort that were a common accompaniment of anxiety. He was asked about a subjective sensation of air hunger or a tendency towards hyperventilation as was a common accompaniment of anxiety. Mr McKenzie referred to shortness of breath occurring after he was sitting but it did not occur regularly and had first occurred a few years ago when he had been prescribed a Ventolin inhaler. Dr Roberts recorded that there was no association with this symptomology and nervousness. Stomach pain, indigestion or upset, being common accompaniments of anxiety, were experienced by Mr McKenzie on rare occasions only when he had a reaction to certain food. There was no evidence of any stomach disturbance secondary to tension. The frequent passage of small quantities of urine were a common accompaniment of anxiety and constipation tendered to occur in those depressed and increased frequency of bowel movement occurred in the anxiety prone but Mr McKenzie referred to having occasion bouts of diarrhoea and had diarrhoea on the morning of the assessment with Dr Roberts but made no association in this regard to anxiety. His bowel function was normal. An increase in perspiration was an inevitable accompaniment of anxiety and Mr McKenzie referred to an increase of perspiration to his hands and he was now perspiring more than usual. When asked if he thought of himself as being nervous, tense, anxious or depressed, Mr McKenzie replied in the affirmative but he had no symptomology consistent with the presence of a significant nervous condition. 164 During the course of this interview, Dr Roberts was able to ascertain that Mr McKenzie had nearly finished his law degree, was interested in all aspects of the law and proposed to practice as a country solicitor. Mr McKenzie would finish his degree halfway through the following year and mentioned that his wife wanted him to get away from employment with the Police Service. He said that he could not stand the thought of going to perform police work or facing it and he had developed a hatred of the job and this hatred remained, even when he was in charge or when working alone. Having been informed of medical conditions occurring during his life, Dr Roberts stated that the medical history was not in any manner contributory to his current situation. 165 A family and personal history was taken from Mr McKenzie. He said he had been married for three years, he had two daughters aged 13 and 10 from his first marriage and he had no children with his current wife although a family was planned at a future date. He denied any personal domestic, financial, sexual or other problems as contributing to his current disability and asserted that the totality of his current difficulties were related to the work situation only. Dr Roberts had asked Mr McKenzie what he understood by the word "stress" as it had been used a number of times during the course of the interview. Mr McKenzie replied that it was equivalent to nervousness, depression and the physical by-products of those conditions. Dr Roberts noted that, in fact, stress was not an illness at all but was a concept of a constellation of forces that impinged upon an organism and if those forces became excessive, a diseased state was produced. The only physical accompaniment of anxiety described by Mr McKenzie was his vomiting. Dr Roberts found it difficult to envisage, in the absence of any other psychological accompaniments of anxiety, that Mr McKenzie's vomiting was psychologically determined. 166 In relation to his mood after the cessation of work, Mr McKenzie told Dr Roberts that he was depressed for two days and good for five days and that pattern of feeling well and feeling depressed continued in spite of being off work. Dr Roberts noted that it was quite clear to himself and to Mr McKenzie that his mood fluctuations could not be related to work since he was removed from work. Mr McKenzie had told Dr Roberts that he had no future with the Police Service since reporting his superior's illegal request and he may as well resign. Because his superior had no knowledge that the report had been made against him by Mr McKenzie, the relationship between them was not influenced by that report. Mr McKenzie denied any decline in terms of energy and interest and appeared able to concentrate normally. At the conclusion of the interview his pulse was somewhat rapid for someone at rest and his hands were moist. 167 In his summary and opinion, Dr Roberts said that Mr McKenzie was asserting that, as a result of the illegal requests pressed upon him by his superior officer, a psychiatric illness arose, namely, a condition of ill health that would prevent him from remaining at work. This request from his superior officer converted his attitude from one of enjoying his work to one of being so hostile to the work situation that he could not even go to work without vomiting. It was noted that request was not made to anyone else but to Mr McKenzie and no one else had knowledge of that request. Mr McKenzie said he had not discussed the matter with other officers and his superior had no knowledge of his report of the matter. Dr Roberts then stated that, if Mr McKenzie's assertion was to be taken as a matter of fact, it had to be assumed that a request of an illegal nature from a superior to his immediately junior, the junior's refusal to accede to that request could lead to a psychiatric illness. Dr Roberts' opinion was that was "simply not possible" and that such an assertion could not be sustained. Dr Roberts was unable to explain Mr McKenzie's symptomology on the basis of any psychiatric/psychological mechanism known to him. He did not consider that the events described could in any manner be productive of a psychiatric illness. Dr Roberts could not explain his vomiting and in 20 years of psychiatric practice, he had never experienced a person consistently vomiting for two months on a regular basis prior to leaving for work although he had heard of such accounts in other commensurable situations. He found certain aspects of Mr McKenzie's story "somewhat difficult to accept". Mr McKenzie's presentation, history and the absolute impossibility of the circumstances as he described it giving rise to a psychiatric disorder, led him to the view that the circumstances and conditions described by Mr McKenzie could in no manner give rise to any psychiatric illness. The circumstances and conditions of employment could in no manner produce any disability that at any time would have prevented him from being at work and undertaking full normal duties and responsibilities. He did not consider there was any basis for asserting that Mr McKenzie was now, or at any time, either or partially or totally incapacitated to undertake the work that he was doing. He did not consider that there were grounds for making a diagnosis of a psychiatric illness. Dr Roberts noted that Mr McKenzie had completed a law course and had certain plans to establish himself as a country lawyer. He queried whether this motivated his present statements but he could not be sure of that but it was quite clear that the circumstances he had described did not have the potential to produce any psychiatric disability. The circumstances Mr McKenzie described may have altered a previously congenial atmosphere into a less congenial atmosphere but such an alteration in the atmosphere at work could not have and could never have had the potential to prevent Mr McKenzie from working and working efficiently to his full usual capacity. 168 On 30 November 1989, Dr Roberts provided to the Police Service a further report regarding Mr McKenzie. In that report he noted that he had been given certain documents, namely, a report of injury asserting that stress and anxiety occurred as a result of work in the Armidale detectives' office but that this was, psychiatrically speaking, "untenable". A number of officers had said that they had not been aware of Mr McKenzie being ill or suffering from any work related stress or anxiety and that he did not bring his state to attention or that he had been seeking treatment. The Chief Inspector mentioned that he was not satisfied that the injuries were received in the execution of his duty. Certain handwritten reports of medical consultations were provided to Dr Roberts but they contained little information and Dr Roberts noted that the sick leave record indicated that Mr McKenzie frequently resorted to sick leave although it could not be classified as excessive. The final sick leave entry at the end of October 1989 relating to stress problems was, in Dr Roberts' view, unjustified and he did not think sick leave should have been taken by the officer at that time. Dr Roberts said that, while it was well recognised that external environmental circumstances could give rise to psychiatric illness, these external stressors needed to be major. He appended the definition of a post-traumatic neurosis giving some indication as to the magnitude of forces that needed to impinge upon an individual to produce an illness. Dr Roberts noted that, while certain lesser degrees of discomfort may arise as a result of minor stresses, a very clear distinction needed to be drawn between discomfort and psychiatric illness in the workplace. A private conversation between two men, even if unpleasant, could not be productive of a psychiatric illness. 169 The diagnostic criteria for post-traumatic stress disorder appended to Dr Roberts' second report, while not fully reproduced, contained the following criteria: Diagnostic criteria for 309.89 Post-traumatic Stress Disorder A. The person has experienced an event that is outside the range of usual human experience and that would be markedly distressing to almost anyone, eg. serious threat to one's life ... or seeing another person who has recently been, or is being, seriously injured or killed as the result of an accident or physical violence. B. The traumatic event is persistently re-experienced in at least one of the following ways: (1) recurrent and intrusive distressing recollections of the event; ... (2) recurrent distressing dreams of the event; (3) sudden acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations and dissociative [flashback] episodes, even those that occur upon awakening or when intoxicated); (4) intense psychological distress at exposure to events that symbolise or resemble an aspect of the traumatic event, including anniversaries of the trauma. C. Persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness (not present before the trauma) as indicated by at least three of the following: (1) efforts to avoid thoughts or feelings associated with the trauma; (2) efforts to avoid activities or situations that arouse recollections of the trauma; (3) inability to recall an important aspect of the trauma (psychogenic amnesia); (4) markedly diminished interest in significant activities; (5) feeling of detachment or estrangement from others; (6) restricted range of affect, eg. unable to have love feelings; (7) sense of a foreshortened future, eg, does not expect to have a career, marriage, or children or a long life. D. Persistent symptoms of increased arousal (not present before the trauma) as indicated by at least two of the following: (1) difficulty falling or staying asleep; (2) irritability or outbursts of anger; (3) difficulty concentrating ; (4) hypervigilance; (5) exaggerated startle response; (6) physiologic reactivity upon exposure to events that symbolise or resemble an aspect of the traumatic event (eg, a woman who was raped in an elevator breaks out in a sweat when entering any elevator). 170 After examining Mr McKenzie again on 1 April 2008, Dr Roberts provided a further report dated 17 April 2008. He noted his previous assessment of November 1989 and the contents of that report and stated that his opinion as expressed in that report was not altered as a result of this most recent examination or the documents provided to him. On this occasion when asked by Dr Roberts' in what way he was feeling unwell and what problems he had, Mr McKenzie said that he could not concentrate on anything and referred to his appetite as going up and down. Since 2003 he had cut himself off from everybody and had no social functioning whatsoever. A perfect day was being in a room sitting alone with the blinds drawn. The only reason that he did anything is that he had his children with him at certain times. He had two daughters aged 17 and 16 and a son aged 15 and when the children were present he kept them occupied. In relation to these matters, Dr Roberts said that Mr McKenzie's description of a perfect day would be a pattern of behaviour found in most severe depression. However, he noted that, in terms of his mental status, Mr McKenzie's presentation was entirely unremarkable and his mental status would negate the presence of any significant depression. He further noted that, if he was suffering from severe depression, he would be incapable of keeping his children occupied when they saw him on their periodic visits. 171 Mr McKenzie provided information of the medication he took when unable to sleep and Dr Roberts noted that one was a night sedative and another was an anti-depressant. Mr McKenzie alleged that he experienced continual flashbacks to incidents he had experienced while in the Police Service and they were replaying every day. Not necessarily the most dangerous incident bothered him the most. He was experiencing nightmares and spoke of the struggle with the man with the rifle during a search of premises. Dr Roberts questioned Mr McKenzie whether the nightmares he was experiencing were identical and he replied he had in fact four to five nightmares which he described as being a film replay of the incidents. In his comment on these matters, Dr Roberts referred to a certain text dealing with clinical assessment, malingering and deception and certain parts referring to unvarying repetitive dreams as being a feature of malingering post-traumatic stress. The text noted that genuine nightmares in PTSD showed variation on a theme of traumatic events and that the malingerer who did not know the expected variation in dream patterns could claim repetitive dreams that always re-enacted a traumatic event in exactly the same way. In further comment Dr Roberts said that Mr McKenzie's description of dreams was therefore consistent with malingering PTSD and not with genuine post-traumatic stress disorder. 172 Mr McKenzie said he was in receipt of a disability support pension but he lived alone and that, after he had separated from his wife in April 2007, his children came to visit him every second week. He told Dr Roberts that he undertook domestic duties and was capable of looking after himself and in that regard he had no difficulties. Dr Roberts commented that, if it was assumed that Mr McKenzie suffered from significant depression to the extent that his preferred activities consisted of spending time alone in a room with the blinds drawn, it would be indicative of severe depression and it was characteristic of such severe depression that all activities would be difficult, including even the most basic self-care activities and domestic duties. The fact that Mr McKenzie presented with a normal mental status and found no difficulty in undertaking such work tasks was inconsistent with the presence of significant depression. Mr McKenzie stated that he had no other activities or other interests and only had one mate left. While his wife and children lived locally, he said he tended to "go off" at his kids. 173 When questioned about prior treatment by a psychologist, psychiatrist, counsellor or general practitioner for any nervous condition, Mr McKenzie spoke of purchasing his legal practice in McLean in 2003, having started with criminal work but then changing to conveyancing and in 1993 buying a practice at Coonamble and remaining there until 1997 before moving to Port Macquarie where he performed conveyancing from home and certain locum work. Mr McKenzie then said that, in 2003, he concentrated on conveyancing as this was the easiest work but from that time he felt he was making bad decisions and described recurring thoughts. At the commencement of 2003 Mr McKenzie said everything was fantastic, he had a good practice and had no stress or worries. His marriage was fantastic, his children were doing well at school but then it all started "to go down" at work. Mr McKenzie began to abuse his wife and felt that if he continued in practice he would make errors and therefore sold his practice at the end of 2003. 174 Dr Roberts thought it was interesting that Mr McKenzie gave an account of no apparent difficulties in terms of his functioning until 2003, many years after leaving the Police Service. After selling his practice he continued to undertake minor conveyancing work from home. In 2004 Mr McKenzie said that his wife had said to him that there was something wrong, things had changed and he should see a doctor. Mr McKenzie attended his general practitioner, Dr Stephen Young, and was referred to a psychologist, Mr Rudd de Bakker and underwent a number of sessions with him. Dr Young felt he was suffering from depression and then referred him to Dr Akkerman for treatment. Mr McKenzie attended Dr Akkerman for four years. He said that over this period his condition had remained the same. Dr Akkerman had not referred him for a second opinion. Mr McKenzie spoke of having built up a reliance on Dr Akkerman and life was a "big black hole" and nothing would lift him out of it. 175 Dr Roberts said of these matters that the assertion of significant depression was inconsistent and did not co-relate with Mr McKenzie's presentation in terms of his mental status and in his view, negated the diagnosis of a major depressive illness. Mr McKenzie had referred to having seen Dr Roberts in 1989 but did not recollect seeing Dr de Groot before that time. Dr Roberts referred to his medication over the years and stated that it would be unusual psychiatric practice to maintain ineffectual treatment for this length of time and (not) to seek other measures such as increasing dosages and using augmentation techniques. In terms of his binge drinking, Dr Roberts mentioned a number of medications for the purpose of reducing the desire to consume alcohol and found it most peculiar that Mr McKenzie had not heard of these medications in circumstances where alcohol excess was a matter of concern. Dr Roberts noted that in terms of memory and concentration that were commonly disturbed in a variety of psychiatric conditions, Mr McKenzie asserted that he had problems since 2002 and 2003. Although he asserted these difficulties there was no evidence of any presence of cognitive impairment. Indeed, Mr McKenzie gave a detailed chronological history without reference to notes. Mr McKenzie denied any bowel symptomology but commented on an increased frequency of urination secondary to coffee. 176 Reference was made to Mr McKenzie's filed statement of claim and the various incidents he had experienced as a police officer were set out in that claim. Dr Roberts asked him what his emotional response was to these matters and in particular, finding the passenger wedged under the dashboard of a car damaged in a motor vehicle accident and he commented that he had no recollection of an emotional response because that incident had occurred many years ago. Dr Roberts said that, in his extensive experience with PTSD and what is a feature of the symptomology of PTSD, it would be inconsistent with this incident being an incident of significance if the emotional response was not recollected. Mr McKenzie had told Dr Roberts that, while attending a house fire and discovering the bodies of two young children burned beyond recognition, it was the only incident that devastated him and caused him to be upset. Dr Roberts said that he thought it significant that this response,, in the context of all the stresses that were listed, was the only one that produced a reaction in Mr McKenzie. Mr McKenzie did not remember attending a barmaid who was murdered by being hit on the head with a brick. Dr Roberts said it was difficult to comprehend how this could be a significant incident. 177 Dr Roberts was of the opinion that Mr McKenzie's mental status was entirely unremarkable in all respects and there was nothing in terms of his mood, his affect, and his thoughts either in form or content or his cognition that suggested any abnormality. Mr McKenzie presented in a totally normal manner. 178 Dr Roberts then referred to a number of documents provided to him concerning Mr McKenzie, including medical reports and opinions. He noted that Dr Akkerman's opinion was that Mr McKenzie had resigned from the Police Service because of his inability to cope with police work. Mr McKenzie, however, was able to function for a number of years as a solicitor. If it was assumed that he had a significant mental illness from 1990 it was inconsistent with his subsequent functioning as a solicitor. He noted other texts where it was stated that a patient with genuine PTSD was more likely to withdraw from recreational activities as well as work. Dr Roberts stated that resignation from the Police Service but being able to practice as a solicitor was inconsistent with a genuine disability. Mrs McKenzie's affidavit spoke of the family moving to Coonamble in 1993 and Mr McKenzie appearing to enjoy his work, making lots of friends, going out socially and enjoying the lifestyle. 179 In relation to Professor McFarlane's report it was stated that Mr McKenzie left the Police Service because he was not sleeping, abusing alcohol and felt depressed. In 1989, Mr McKenzie said he was only drinking alcohol socially and had not had a drink since being off work. Dr Roberts said that the assertion that alcohol excess was operative at the time of leaving the Police Service was therefore incorrect. Professor McFarlane also asserted that Mr McKenzie was suffering from depression but when he attended Dr Roberts surgery in November 1989 the only complaint made was he was suffering from sleep disturbance and not a great deal more. Other comments made by Mr McKenzie to Professor McFarlane, having regard to what Mr McKenzie told Dr Roberts in1989, were regarded as being consistent with "malingered PTSD". Mr McKenzie had told Professor McFarlane of disturbing recurring images of his work as a police officer but in November 1989, Mr McKenzie told Dr Roberts that he did not know why he was nervous other than the conflict he had with his superior officer. It was further noted that Dr Akkerman had informed the SAS Trustee Corporation that Mr McKenzie's condition deteriorated in early 1990 but this was inconsistent with the history given in Mrs McKenzie's affidavit. 180 In relation to the prospect of delayed onset of post-traumatic distress disorder, Dr Roberts said that this needed to be considered in a circumstance where a claim was being made for PTSD condition years after the traumatic events. This diagnostic entity was "rare" and was most common amongst returned soldiers and victims of childhood sexual assault. In summary, Dr Roberts stated that he did not consider that Mr McKenzie now suffered from or had ever suffered from PTSD. There was a possible history of onset of excessive alcohol ingestion and depression in mood between 1996 and 1997. Further, major depression was an illness of life and could not be assumed to be related to the now alleged previous events, especially since there was only one event that Mr McKenzie invoked as being relevant. Bankruptcy and his professional difficulties would be deemed to be significant stressors. Dr Roberts could not find any evidence in terms of symptomology or current presentation of the alleged disabilities. He was unable to find evidence of illness except on the basis of assertions but there was no confirmatory evidence of any condition. The vast majority of persons who suffered from depression recovered and as a rule, PTSD did not produce incapacity. Because features of malingered PTSD were present, the totality of his assertions were open to doubt. Dr Roberts said that, in 2008, he remained of the view that Mr McKenzie's presentation and mental status was inconsistent with the disabilities he asserted and there was an absolute lack of correlation between his assertions of incapacity and his mental status. 181 In his medical history declaration signed in August 1978 when he joined the Police Service, Mr McKenzie stated that he did not have frequent and severe depression, a mental illness or a nervous breakdown, no vomiting, passing of blood or recurring diarrhoea. 182 In oral evidence, Dr Roberts said that his November 1989 report did not have a section entitled "mental status examination" but his 2008 report did have such a section. Dr Roberts said that, in 1989, the concept was known but it was not customarily included in the formal report as it is now. A mental status report, if included in his 1989 report, would simply be repeating his findings as set out in that report. A mental status examination set out the way in which a person reacted with the doctor, the way he was perceived as he sat opposite the doctor and the manner in which he came across. 183 In cross-examination, Dr Roberts denied that he viewed the discussion about misstating crime figures between Mr McKenzie and his senior officer as inconsequential but in terms of the genesis of a psychiatric illness, he considered that it could not have given rise to a psychiatric condition. That was confirmed by the fact that, when Mr McKenzie was asked what was wrong and what was making him feel unwell, he said he suffered from sleep disturbance but not a great deal more. He was nervous in the interview but he had little in terms of symptomology to support the contention of being anxious. By reference to other observations in Dr Roberts' report, the doctor rejected the suggestion that he treated the discussion between Mr McKenzie and his superior officer as trivial. Dr Roberts thought it was a very serious event but in terms of its capacity to produce an ongoing mental illness, he thought the assertion was untenable. It was certainly untenable in terms of any PTSD diagnosis. Dr Roberts understood that Mr McKenzie was being asked to perform an illegal act while he was a police officer. He also understood that Mr McKenzie was being asked by his superior officer to involve other officers in that act and understood that Mr McKenzie had refused to engage in such a conspiracy. He assumed that, if the matter had become public knowledge in the office, it would have led to an unpleasant atmosphere but it remained private between Mr McKenzie and his superior officer. Thus, the magnitude of the stressor was less than if the matter was common knowledge. He understood that thereafter Mr McKenzie said his senior officer pressured him and he reported the matter and an investigation might well have followed. If that occurred the matter may have become public knowledge but Dr Roberts was not aware this had occurred and certainly not at the time when he saw Mr McKenzie. When Dr Roberts saw Mr McKenzie in 1989 he did not mention that he was concerned about an ongoing investigation or the matter becoming public knowledge. Dr Roberts said that he could not accept that this event was significant in terms of the development of psychiatric symptoms and by itself, could not be a potential psychiatric damaging event. 184 Mr McKenzie did not complain of anything apart from sleep disturbance and not a great deal more when he saw Dr Roberts. He said he was very anxious but had few symptoms to support that contention and at that time Dr Roberts could not diagnose an abnormality. The unpleasantness with the senior officer was not a significant stressor. Mr McKenzie did not mention any anxiety from reporting the incident and expecting an inquiry or investigation. In those circumstances, in psychiatric terms, it was not a significant stressor. It was put to Dr Roberts that Mr McKenzie had told him that he believed there was no other way out of his current situation but to resign and that should have suggested a great deal of concern on the part of Mr McKenzie. Dr Roberts replied that, while that indicated resignation was an option he was considering, it was not an unreasonable option but that decision did not denote a psychiatric illness and did not alter his view. 185 It was put to Dr Roberts that at the first interview, apart from sleep disturbance, he understood Mr McKenzie to say that there was not much else wrong with him and in subsequent interviews he made a number of different complaints. Although there were additional complaints, Dr Roberts did not consider those complaints were in fact significant enough to diagnose a DSM-IV condition. At the time he did not consider and he did not now consider that Mr McKenzie showed, on any occasion when he came to see Dr Roberts, evidence of a psychiatric illness. 186 It was put to Dr Roberts that, when he first saw Mr McKenzie, he complained of sleep disturbance and nervousness in an interview situation. He said he was nervous in relation to anything that related to being off work and he spoke of being very anxious in certain circumstances. He said he was tense, would experience the shakes and he had depression that was a feeling of being down and definitely not happy. Mr McKenzie also spoke of being sick to the point of vomiting. Dr Roberts said that, in these matters, there were inconsistencies in the statement and no evidence of others such as having the shakes - he held out his hand and did not demonstrate that condition. He also said he was well within himself. It was then put to Dr Roberts that Mr McKenzie told him that he had been on sick leave since early September 1989 and had been sitting at home doing some gardening and reading but little else. He had mentioned increased perspiration and Dr Roberts said that was the only symptom consistent with any anxiety complaint. Dr Roberts accepted that he had discounted the likelihood or the reality of Mr McKenzie vomiting before work some months beforehand. That was very difficult to accept on reasonable psychiatric grounds. It was assumed that he vomited on a regular basis for some period of time but the absence of symptoms involving memory, concentration, chest respiration (except for asthma), the absence of bowel or bladder function was remarkable. Vomiting, absent any other symptom, was incomprehensible on reasonable psychiatric grounds. Mr McKenzie had told him that periodically he suffered from diarrhoea, including on the morning of the interview. 187 In relation to Mr McKenzie's indication that there was no way out other than to resign, Dr Roberts noted that he had nearly finished his law degree, he was interested in all aspects of the law and proposed to practice as a country solicitor. He also mentioned that he had developed a hatred of the job and his wife wanted him to get away from the Police Service. That information was significant. At that point Mr McKenzie did not see a long-term career in the Police Service. Secondly, if it was assumed that Mr McKenzie had a significant psychiatric illness that state was inconsistent with Mr McKenzie undertaking legal studies, especially if it was assumed that the psychiatric illness was of the severity he claimed. There was a correlation between function and mental health and that was another significant clinical inconsistency. 188 Although Dr Roberts was of the view that Mr McKenzie complained of little else but sleep disturbance, it was put to Dr Roberts that in fact Mr McKenzie made wide-ranging and very significant complaints. Dr Roberts replied that Mr McKenzie had subsequently made certain additional complaints but at the initial evaluation he saw himself as suffering from sleep disturbance and not a great deal more and that was his own evaluation. That was diagnostically significant. While he made a number of other complaints during the course of the 1989 consultation, Dr Roberts did not consider them to be significant in terms of psychiatric diagnosis. 189 In January 2009 Dr Robert Lewin provided a psychiatric assessment of Mr McKenzie. He had available to him Dr Roberts' 1989 report, Professor McFarlane's report, Dr Delaforce's report and Dr Akkerman's reports. In the summary of his diagnosis and opinion, Dr Lewin said that Mr McKenzie had a partially treated, major depressive episode but he did not diagnose a morbid depressive condition such as psychotic depression. When asked when that condition probably arose, Dr Lewin referred to Dr Robert's 1989 report and noted his diagnostic conclusions that Mr McKenzie was not suffering from a psychiatric illness at that time. He noted that Dr Roberts gave clear reasons for that opinion. He regarded Mr McKenzie, in the period leading up to March 1990, as evidentially functioning competently in an academic sense because of his continued law studies. He concluded there was evidence that, at various times, Mr McKenzie may have been depressed as a result of his police service and intermittent symptoms were described. Dr Lewin was of the opinion that there was no clear-cut evidence of an injury and depressive condition around the time of Mr McKenzie's resignation. When the history of functioning was considered, it was most unlikely that Mr McKenzie was suffering from a depressive illness. When all the data was considered, Dr Lewin found it improbable that Mr McKenzie was suffering from a severe psychiatric disturbance such as post-traumatic stress disorder. In the period leading up to Mr McKenzie's decision in 1990 to leave work as a police officer, he concluded that his condition did not satisfy diagnostic criteria with regard to PTSD or major depression. The current condition of a partially treated major depressive episode, on the available information, began in approximately 2003. Various problems were evident in Mr McKenzie's experience at that time. He referred to a range of more recent difficulties that did not appear to be of direct causal significance, including the death of his father in 2006, bankruptcy proceedings in January 2006 and marital problems. DELIBERATION 190 Before considering the competing submissions, it is convenient to set out the main statutory provisions relating to this appeal. The primary provisions of relevance under the Police Regulation (Superannuation) Act 1906 are as follows: 1 Definitions "hurt on duty" in relation to a member of the police force means injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987, entitle the member to compensation under the Act. "STC" means the SAS Trustee Corporation continued under the Superannuation Administration Act 1996 10 Superannuation allowance where member hurt on duty (1) In this section: "attributed salary of office" means: (a) ... (b) in relation to a former member of the police force who resigned or retired - the member's attributed salary of office at the date of the member's resignation or retirement".. "disabled member of the police force" means: (a) ... (b) a former member of the police force who resigned or retired and who, according to a certificate given pursuant to section 10B (2) at any time after the member's resignation or retirement, was incapable, from an infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member's resignation or retirement, that infirmity being determined, pursuant to section 10B (3) or on appeal, to have been caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be. (1A) Subject to this section, the annual superannuation allowance for a disabled member of the police force is: (a) an amount that is equal to 72.75 per cent of the member's attributed salary of office ... 10B Medical examination of disabled member and determination of whether hurt on duty (1) An annual superannuation allowance or gratuity must not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 . (2) An annual superannuation allowance or gratuity must not be granted under section 10 to a former member of the police force who resigned or retired unless: (a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, and (b) if the regulations so require, the notification was in the prescribed form, and (c) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was incapable, from that infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member's resignation or retirement. (2A) For the purposes of determining a member's or former member's incapacity under this section: (a) STC is not to have regard to the member's or former member's actual rank or position or any functions (other than the functions referred to in subsection (2) (c) of the member or former member at the time to which the certification relates, and (b) the capacity to exercise a function by delegation is not taken to be a capacity to personally exercise the function. (2C) In this section: "medical advice" means the advice of: (a) 2 members of the Police Medical Board, or (b) any one or more medical practitioners nominated by the STC The primary provisions of relevance under the Superannuation Administration Act are as follows : 51 Duties relating to functions (1) STC must: (a) act honestly in all matters relating to its functions relating to the STC schemes, and (b) exercise, in relation to all matters affecting the STC schemes, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide, and (c) ensure that its functions relating to the STC schemes are exercised in the best interests of persons entitled to receive benefits under the STC schemes, and (d) not enter into any contract or arrangement, or do anything else, that would prevent STC from, or hinder STC in, properly exercising STC's functions as a trustee. Note. The duties contained in subsection (1) reflect the covenants required of superannuation scheme trustees under the Superannuation Industry (Supervision) Act 1993 of the Commonwealth. (2) In exercising its functions, STC must have regard to: (a) the interests of persons entitled to receive benefits under the STC schemes, and (b) the Heads of Government Agreement, commencing 1 July 1996, relating to the exemption of certain State public sector superannuation schemes from the Superannuation Industry (Supervision) Act 1993 of the Commonwealth, and (c) the future liabilities of the STC funds, and (d) any statement in writing of the policy of the Government on any matter that is relevant to the functions of STC given by the Minister to STC. (3) Subsection (1) (d) does not prevent STC from entering into a contract or an arrangement under section 53. 66 STC may compromise or settle claims (1) STC may compromise or otherwise settle any claim made against it. (2) If STC compromises or otherwise settles a claim in relation to a benefit, the compromise or settlement discharges STC's obligations as regards the benefit, and the amount payable is to be regarded as a benefit under the STC scheme concerned and is payable from the appropriate STC fund accordingly. (3) To the extent that an amount payable by STC following a compromise or settlement is not a benefit under the relevant STC scheme, the amount is payable from whichever fund or funds that STC considers appropriate. (4) STC may make such inquiries and investigations with respect to a claim made against it as it thinks fit. 67 Determination of disputes (1) A dispute under this or any other Act concerning an STC scheme is to be determined by STC or an STC disputes committee, except as otherwise provided by the regulations. ... (3) In determining a dispute, STC, an STC disputes committee or the relevant trustee may inform itself on any matter in such manner as it thinks fit and, in so doing, is not bound to observe rules of law relating to evidence. (4) A trustee acting in accordance with regulations referred to in subsection (2) and an STC disputes committee have and may exercise the powers conferred on STC by sections 66 and 68. 88 Appeals (1) A person aggrieved by a determination of STC or an STC disputes committee under section 67 (relating to determination of disputes) may appeal against the determination to the Industrial Relations Commission in Court Session (the "Commission"). (2) The appeal must be made within 6 months after the appellant is notified of the determination or within such further period as the Commission allows. (3) In dealing with the appeal, the Commission may exercise any function that could have been exercised by STC or the STC disputes committee, as the case may be, in making the determination the subject of the appeal. (4) In dealing with the appeal, the Commission is to have regard to this Act and any other relevant provisions regulating the superannuation scheme concerned and such other matters as it considers to be relevant. (5) In dealing with the appeal, the Commission is not bound by the rules of evidence and may inform itself in any manner it thinks fit. (6) The final determination made by the Commission on the appeal is to be given effect to as if it were a determination of STC. 191 Having set out the statutory provisions, some brief discussion is necessary concerning the role of the Court on appeal and the manner in which it is to perform its task. The appeal is from an administrative decision taken in circumstances where, although submissions and medical reports are received, there is no requirement for the STC to act as a tribunal conducting a formal hearing. In dealing with disputes, while the STC is bound by the provisions of s 51 of the Superannuation Administration Act, it is only when an appeal is made under s 88 of that Act that a hearing is held. In Gedeon v First State Super Trustee Corporation [2005] NSWIRComm 62, Marks J dealt with the almost identical provision then appearing as s 40 of the Superannuation Administration Act. His Honour held that s 40 provided for a hearing de novo leaving the Court to determine the matter by reference to such evidence as the parties placed before it and any other material that the Court might properly consider. It was observed that s 40 did not limit the Court in hearing an appeal to the materials considered by the relevant superannuation authority. While those provisions have since been repealed, there appears to be no reason to treat s 88 of the current Act in any different way. This approach is consistent with the process of categorisation of appeals dealt within in the Builder's Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 where the High Court pointed to certain provisions as are present in s 88 as might lead to the conclusion that the appeal is by way of a de novo hearing. Nevertheless, the High Court cautioned that, in the end, the answer would depend on an examination of the legislative provisions rather than attempting to classify the administrative authority as one which was entrusted with an executive or quasi-judicial function. 192 As the task of determining the nature of the appeal is primarily a question of elucidating the legislative intent (BLB v Sperway per Mason J at 621-622) it is significant that in s 88(3), on appeal, the Court may exercise any function that could have been exercised by the STC or its disputes committee in making the determination that is the subject of the appeal. By s 88(4), on appeal, the Court is to have regard to the Superannuation Administration Act and any other relevant provision regulating the superannuation scheme concerned and such other matters it considers relevant. By sub-section 5, in dealing with the appeal, the Court is not bound by the rules of evidence and may inform itself in any manner it thinks fit. By sub-section 6, the final determination made by the Court on appeal is to be given effect to as if it were a determination of the STC. By these provisions the legislature has given a clear direction that in effect, on appeal, the Court acts as if it were the STC and is to have regard to the obligations and functions imposed on the STC as well as the powers that may be exercised by the STC. In this rather unusual appeal provision the Court, acting in place of the STC, makes a final determination in the present matter of whether or not Mr McKenzie satisfies the provisions of s 10B of the Police Regulation (Superannuation) Act, namely, having regard to medical advice on the condition and fitness for employment, it can be certified that the former member of the Police Service was incapable, from an infirmity of body or mind, of personally exercising the functions of a police officer. 193 At the hearing of the appeal the parties were in agreement that the only issue was whether or not Mr McKenzie suffered from an incapacitating condition of the mind such that he could not perform the duties of a police officer at the date of resignation. No issue arose as to notice of the injury as dealt with by the Full Bench of the Court in SAS Trustee Corporation v Hazlewood [2009] NSWIRComm 157. No material was placed before the Court pursuant to s 51 concerning the future liabilities of the Fund should this claim or type of claim be allowed nor was the Court's attention drawn to any relevant policy statement that should be considered. 194 The present appeal is, therefore, a contest as to whether there is medical evidence that is persuasive of the existence of the condition and incapacity claimed. On appeal, the Court is not concerned with establishing error by the STC or its disputes committee. It is to be noted that s 140 of the Evidence Act 1995 provides that, in a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. By sub-section 2 it is laid down that, without limiting the matters that the Court may take into account in deciding whether it is so satisfied, the Court is to take into account the nature of the cause of action or defence, the nature of the subject matter of the proceedings and the gravity of the matters alleged. As noted in the discussion in Odgers (Uniform Evidence Law 8th ed, Thomson) the civil standard is not treated as a matter of mathematical standards but is a reasonable attempt to find the facts in the circumstances of a particular case. 195 Odgers points out that, considering the matters referred to in s 140(2) of the Evidence Act and the factors to be taken into account, it was appropriate to keep in mind the majority judgment of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. 196 While s 140 of the Evidence Act largely reflects the common law, the Law Reform Commission's report indicated that some changes were sought to be introduced with the statutory provision. It is to be remembered, however, that the Court, in hearing an appeal under s 88 of the Superannuation Administration Act, is not bound by the rules of evidence and may inform itself in any manner it thinks fit. Bearing all of these matters in mind it may be said that, having regard to the evidence, including the medical evidence, before the Court on appeal, the appellant must establish a case to warrant the issue of a certificate that, upon Mr McKenzie's retirement he was incapable, from an infirmity of mind, of personally exercising the functions of a police officer. The Court will bear in mind that, in general terms, the Police Regulation (Superannuation) Act may be regarded as beneficial legislation touching upon important aspects of the employment relationship. Nevertheless, having so stated, the Court is to bear in mind the statutory scheme, especially where restrictions are placed upon entitlement unless certain specified conditions are met. Further, in conducting an appeal under s 88, the Court, pursuant to s 51, may have regard to the interests of persons entitled to receive a benefit and pursuant to s 66, may determine to compromise a claim (but not so as to set aside an essential statutory requirement as discussed in Hazlewood). While the present case raises questions of importance to the parties they are not issues of such gravity as where, in civil proceedings, the Court is required to find fraudulent or criminal conduct. 197 Having regard to the approach referred to above, it is then necessary to consider the evidence, including the medical evidence, in relation to Mr McKenzie's alleged infirmity of mind that, at the date of his resignation in March 1990, made him incapable of performing duties of a police officer for the foreseeable future. In essence, the respondent's case raises the difficulty of the Court being satisfied, well after the event, that Mr McKenzie was so incapacitated at the date of resignation. The respondent points to the fact that, apart from claiming stress in early September 1989 and taking leave, there was no other indication of a debilitating mental disorder and no treatment for such a disorder until sometime in 2003/2004. The lack of relevant symptomology of what is now claimed was further emphasised by the history provided by Mr McKenzie to Dr Roberts in November 1989 - that, apart from sleeplessness, there was not much else wrong with him and not much he could not do. It was not until sometime later that Mr McKenzie gave a history of flashbacks and nightmares in which he relived traumatic incidents that had occurred during his time as a police officer. The respondent points to the fact that there are discrepancies in the versions given to different doctors over a number of years, both as to identification of the most serious traumatic events and as to the traumatic event that was the catalyst for him reaching the point where he could no longer bring himself to perform his police duties. Mr McKenzie's letter of resignation did not mention any of these incidents as leading to his resignation - the only matter he listed was his desire to complete his final year of law studies on a full-time basis. His application for sick leave and reported injury received while on duty spoke about Mr McKenzie, in the previous month, receiving treatment from his doctor for stress and anxiety related to his work in the Armidale detectives' office and the fact that certain events had occurred which had led him to "consult medical treatment". This appeared to be a reference to his refusal to manipulate the crime clear up rate as requested by the head detective but did not appear to be a reference to any of the traumatic events that he later recounted to various medical practitioners when giving a history of his disabilities. When Mr McKenzie spoke to Dr Roberts in November 1989 he did not mention any of the traumatic incidents he had experienced during his career as a police officer but spoke of his disagreement with the head detective. 198 There were other matters that were said to be inconsistent with what might usually be expected of a person with the severe disabilities claimed by Mr McKenzie: although said to be suffering from depression and a lack of concentration and application to his work, Mr McKenzie was able to continue his studies, qualify as a solicitor and then, over a number of years, continue to practice as a solicitor. Also, although at various times giving a history of being socially remote and angry with his children, he went on sick leave while engaged to be married and married prior to his resignation. Although there were some problems his wife regarded this period as being a happy time and they had a short honeymoon. His wife also described their life in various country towns as often being socially active with her husband enjoying his work although there were changes in his mood at various times during this quite lengthy period. All of these inconsistencies were relied upon to suggest that whatever happened to Mr McKenzie to bring him to his current state of incapacity, all of the inconsistencies suggested that it was not his work as a police officer that brought about his condition nor did he suffer the debilitating condition at the time he resigned from the Police Service for which he now claims a certificate. The respondent points to other evidence to suggest that the financial stresses and failures of his legal practice, his heavy gambling, his excessive consumption of alcohol and professional difficulties that brought him under notice by way of a professional complaint and disciplinary proceedings provided the real stressors that ultimately resulted in his present condition. Those matters occurred well after Mr McKenzie left the Police Service and had nothing to do with his police work or events in which he participated while a police officer. 199 It is understandable that a good deal of attention was paid to attempting to ascertain the extent to which Mr McKenzie could be fitted within criteria laid down in the Diagnostic and Statistical Manual of Mental Disorders - DSM-IV. There is, however, a danger in following such a course by adhering too strictly to or requiring absolute compliance with certain criteria when DSM-IV is essentially to be treated by specialist practitioners as a diagnostic tool in the treatment of patients. This use of DSM-IV is recognised in the Introduction and in the "Cautionary Statement" appearing in the 4th ed of the Manual. Earlier in the Introduction, the Manual talks about its highest priority as being "to provide a helpful guide to clinical practice" noting that DSM-111 revealed the existence of a number of inconsistencies in the system and a number of instances in which the criteria were not entirely clear. Under the sub-heading, "Definition of mental disorder" it was stated in the Introduction: Moreover, although this manual provides a classification of mental disorders, it must be admitted that no definition adequately specifies precise boundaries for the concept of "mental disorder". The concept of mental disorder, like many other concepts in medicine and science, lacks a consistent operational definition that covers all situations. .... Mental disorders have been defined by a variety of concepts (eg, distress, dysfunction, discontrol, disadvantage, disability, inflexibility, irrationality, syndromal patterns, etiology and statistic deviation). Each is a useful indicator for a mental disorder, but none is equivalent to the concept, and different situations call for different definitions. 200 In another part of the Introduction the Manual deals with the use of DSM-IV and specifically refers to limitations on the categorical approach, the use of clinical judgement and the use of DSM-IV in forensic settings. For present purposes the relevant parts of that discussion are as follows: Limitations of the Categorical Approach DSM-IV is a categorical classification that divides mental disorders into types based on criteria sets with defining features ... A categorical approach to classification works best when all members of a diagnostic class are homogeneous, when there are clear boundaries between classes and when the different classes are mutually exclusive. Nonetheless, the limitations of the categorical classification system must be recognised. In DSM-IV there is no assumption that each category of mental disorder is a completely discrete entity with absolute boundaries dividing it from other mental disorders or from no mental disorder. There is also no assumption that all individuals described as having the same mental disorder are alike in all important ways. The clinician using DSM-IV should therefore consider that individuals sharing a diagnosis are likely to be heterogeneous even in regard to the defining features of the diagnosis and that boundary cases will be difficult to diagnose in any but a probabilistic fashion. This outlook allows greater flexibility in the use of the system, encourages more specific attention to boundary cases and emphasises the need to capture additional clinical information that goes beyond diagnosis. In recognition of the heterogeneity of clinical presentations, DSM-IV often includes polythetic criteria sets in which the individual need only present with a subset of items from a longer list (eg, the diagnosis of Borderline Personality Disorder requires only five out of nine items). ... Use of Clinical Judgement DSM-IV is a classification of mental disorders that was developed for use in clinical, educational and research settings. The diagnostic categories, criteria and textual descriptions are meant to be employed by individuals with appropriate clinical training and experience in diagnosis. It is important that DSM-IV not be applied mechanically by untrained individuals. The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgement and are not meant to be used in a cookbook fashion. For example, the exercise of clinical judgement may justify giving a certain diagnosis to an individual even though the clinical presentation falls short of meeting the full criteria for the diagnosis as long as the symptoms that are present are persistent and severe ... Use of DSM-IV in Forensic Settings When the DSM-IV categories, criteria and textual descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis. In most situations the clinical diagnosis of a DSM-IV mental disorder is not sufficient to establish the existence for legal purposes of a "mental disorder", "mental disability", "mental disease" or "mental defect". In determining whether an individual meets a specified legal standard (eg. for competence, criminal responsibility or disability), additional information is usually required beyond that contained in the DSM-IV diagnosis. This might include information about the individual's functional impairments and how these impairments affect the particular abilities in question. It is precisely because impairments, abilities and disabilities vary widely within each diagnostic category that assignment of a particular diagnosis does not imply a specific level of impairment or disability ... . The use of DSM-IV in forensic settings should be informed by an awareness of the risks and limitations discussed above. When used appropriately, diagnoses and diagnostic information can assist decision makers in their determinations. ... . 201 Following the Introduction, the Manual contains a "Cautionary Statement" that commences in the following manner: The specified diagnostic criteria for each mental disorder are offered as guidelines for making diagnoses because it has been demonstrated that the use of such criteria enhances agreement among clinicians and investigators. The proper use of these criteria requires specialised clinical training that provides both a body of knowledge and clinical skills. These diagnostic criteria and the DSM-IV Classification of mental disorders reflect a consensus of current formulations of evolving knowledge in our field. They do not encompass, however, all the conditions for which people may be treated or that may be appropriate topics for research efforts. ... 202 The limitations mentioned above have been highlighted in an article entitled "What is the DSM 4 - TR?" authored by Gregory L Nooney the director and therapist of Burgess Mental Health, Iowa. Mr Nooney is a M.Social Work (Hons) and a B.Arts and has held a number of professional positions as a mental health therapist and instructor. He has presented a number of workshop discussions including "De-mystifying the Diagnostic and Statistical Manual of Mental Disorder (DSM-IV-TR)" and "Ethical Implications in the Use and Misuse of the Diagnostic and Statistical Method of Mental Disorder (DSM-IV-TR)". In this article published in 2006, Mr Nooney states: The DSM IV is a research-stimulated, politically influenced, pathologically based categorical classification system that divides mental disorders into types based on criteria sets with defining features. Arranging observable data into categories works best when there are few differences among the items within each category, and many important differences among items in different categories. It is clear, however, that neither is true when organizing diagnoses. Rather, the differences among cases within specific categories is large, and it is often the case that persons who are diagnosed with distinctly different disorders may be quite similar to one another in terms of their symptoms or etiology. While the DSM makes no claim to embrace the medical model, it is frequently so perceived in every day usage. Consequently, persons who are diagnosed with specific disorders based on DSM criteria often assume that their diagnosis is correct and mostly unchangeable. ... I am suggesting that the problem may lie with the manual itself, with its poorly understood limitations. The culture wants certainty and clarity in regard to personal suffering and difficulties. Even though the DSM does not lay claim to such clarity or certainty, its existence fills such a void and it is so embraced. It has even been called the "Bible" of mental health services. This is, in my view, a dangerous road on which to embark. I would encourage the reader to familiarise themselves with the Introduction and Cautionary Statement, pp.xxii-xxxvii, where the following limitations and uncertainties of the document are clearly set forth: ... 203 Before considering the medical evidence it is appropriate to deal with Mr McKenzie's presentation and demeanour while giving his evidence on the appeal. Mr McKenzie was closely cross-examined for a considerable period but that is not to suggest that the cross-examination was inappropriate. He was presented with the contradictions that were said to exist in relation to the history he had given to various specialists and he appeared to attempt to answer those questions, or at least place them in context. He was not argumentative nor did he give evidence in a way that gave the appearance that he was no more than an advocate in his own cause: in some instances quite the opposite appeared to be the case. He occasionally forgot things and had to be reminded of other matters. His manner was subdued, almost cold and he appeared to be detached from the legal controversy in which he was immersed. He sometimes gave the appearance of a man whose spirit was broken and had lost all hope that anything would change in his circumstances. 204 Having had the opportunity of hearing his evidence and observing his demeanour throughout the giving of that evidence and during the course of the hearing, I am unable to detect anything about his evidence to suggest other than it was given truthfully. His evidence did not appear to be rehearsed nor did it reflect the type of language that might suggest a close study of the medical criteria for his condition. 205 The respondent's analysis of the evidence is that Mr McKenzie's life really fell apart in 2003/2004 and it was not until that time that he received psychiatric treatment. In the early years he had made no complaint to Dr Breusch, except suffering stress, and he also told the Police Medical Officer about difficulties with the head detective. Although he had seen Dr de Groot there was no follow-up. It was suggested that all of this history (including his legal studies and practice as a solicitor) was inconsistent with Mr McKenzie suffering from an infirmity of the mind that precluded him from performing his duties as a police officer at the date of his resignation in March 1990. It was then submitted that Mr McKenzie's financial and professional difficulties in Coonamble were of such an order that it was not credible that he was not worried or stressed by them, yet that was the effect of his evidence. Mr McKenzie's evidence on these matters, however, was credible. He had altered the nature of the legal work he was undertaking so as to concentrate on easier tasks such as conveyancing until he reached the point that he thought he may make serious mistakes in relation to the transfer of properties worth $1m or more. He did not believe that he had any professional disciplinary concerns and in truth, they did not appear to arise until 2005 when he had ceased to practice. His lack of concern about his financial difficulties was also reflected in his wife's evidence. She did not give the impression that bankruptcy was a devastating blow either to Mr McKenzie or the family although they had money worries. Mr McKenzie did not tell her much about the financial problems experienced by the family and although their circumstances undoubtedly altered, Mrs McKenzie's evidence did not give any indication of this being a traumatic period; life appeared to "flow on" and being discharged from bankruptcy was not seen as being a "great relief. While it might be expected that financial difficulties leading to bankruptcy would be of concern to any person, the impression gained from Mr McKenzie's evidence was that, considering the other things that were happening in his personal life and his personal difficulties as a mental state, the level of concern about his money worries was relatively small by comparison. 206 On behalf of the respondent it was put that Mr McKenzie began betting in large sums, as indicated by his TAB account turnover, and that his alleged losses provided the type of stressor that made his present condition explicable rather than any event he experienced as a police officer. The TAB records produced on summons were the basis for this submission. There was little by way of detailed analysis of these records but Mr McKenzie denied that he was either betting heavily or was incurring large losses - in fact, he spoke about successes that balanced out his betting losses. Ultimately, the evidence does not support a finding that Mr McKenzie was betting beyond his means nor that he was incurring heavy losses even if he was betting at a higher level than he had previously. The Court is therefore unable to accept that his betting acted as any type of relevant stressor as alleged by the respondent and finds force in the submission of counsel for the appellant that these betting events lacked proximity or a close connection in time to Mr McKenzie experiencing recurring events that occurred during his time as a police officer. 207 As broadly stated in relation to the expert medical evidence, the Court agrees with Dr Christie's analysis and conclusion, namely, that, with the exception of Dr Roberts (and for different reasons, Dr Lewin), the psychiatric opinions are otherwise unanimous that Mr McKenzie suffered a disabling psychiatric condition from 1990 that would have rendered him incapable of full police duties from that time. While having the benefit of being concise, Dr Christie's view tends to minimise the differences between those opinions. The general position, nevertheless, is that the preponderance of specialist opinion is that, at the date of resignation in March 1990, Mr McKenzie suffered from at least PTSD and major depression that rendered him incapable of performing full police duties and that condition was likely to continue for the foreseeable future. 208 Putting to one side the differences that exist between other specialists' opinion, it is primarily Dr Roberts who firmly rejects the possibility that Mr McKenzie suffered a psychiatric disorder of any kind arising from his police service and that no such condition existed as at the time of his resignation in March 1990. Dr Roberts saw Mr McKenzie in November 1989. He was clearly influenced by the fact that Mr McKenzie did not complain of anything other than disturbed sleep and that otherwise he was fairly well and capable of doing just about anything. Dr Roberts did not regard the variety of other complaints made during the interview, including frequent vomiting before work, as indicating a need for further investigation. 209 It is clear that Mr McKenzie was less than forthcoming in giving his history to Dr Roberts but there are at least two understandable reasons for that course being taken. Firstly, the Court accepts that Mr McKenzie had been informed that he was unlikely to get any support for his Hurt-on-Duty claim for sick leave since early September 1989 because of what was perceived to be Dr Roberts' reputation as a gun-for-hire and in these circumstances, he had been hired by the Commissioner of Police. Having regard to the fact that Mr McKenzie had been absent from work since early September 1989 and by the time of his interview with Dr Roberts, he had run out of sick leave and may also have run out of annual leave and was now facing leave without pay, it is difficult to understand, other than the explanation he has given, why he would be so reticent. On more than one occasion during the interview with Dr Roberts, Mr McKenzie stated that he did not want a pension thereby signalling that he sought leave attributable to being hurt-on-duty rather than have his time off work deducted from his sick leave or annual leave. This limited purpose may also explain why Mr McKenzie did not see the need to be more detailed in providing his history of traumatic experiences. Secondly, the explanation for his reticence as explained by Dr Akkerman was that recounting these traumatic events was too hurtful and in such circumstances, avoidance was a common trait. It is significant that Dr Akkerman, who was his treating psychiatrist, was not fully informed of these traumatic events until well into Mr McKenzie's treatment. Even then, there was an appearance of the full extent of the history being released by Mr McKenzie in an almost piecemeal fashion and as he felt able to do so. As Dr Delaforce opined, by this stage Mr McKenzie just wanted to get out of the Police Service as quickly as possible and he was not prepared to get involved in protracted legal proceedings to obtain hurt-on-duty benefits. 210 In his 1989 report and in his later reports, Dr Roberts was dismissive of Mr McKenzie's complaint of stress and being no longer able to perform his duties as a police officer. In 2008 when Dr Roberts came to review Mr McKenzie for the purposes of this litigation, his view had hardened even further, effectively suggesting that Mr McKenzie's complaints were consistent with malingering. In response to a query raised by the Court, counsel for the respondent indicated that the respondent's case did not have to go that far and no reliance was placed on that part of Dr Roberts' report. Those views, however, clearly colour the recent reports prepared by Dr Roberts but no other specialist suggests this possibility. In addition, there is force in Dr Delaforce's view (and others) that, faced with such an unexceptional history yet finding complaints of stress, sweatiness, sleep loss, vomiting before going to work and his attitude that the only way out was to resign from the Police Service, it was appropriate to look for some other cause for these conditions. Dr Delaforce, after reading the reports, was of the view that a deficiency in Dr Roberts' report was the failure to look for some other explanation and that the variety of other complaints should have led to a more interventionist approach to search out Mr McKenzie's real complaints about his health. Dr Delaforce, in dealing with this aspect in his evidence and while showing professional courtesy, nevertheless, appeared somewhat disturbed at the shortcomings in Dr Roberts' 1989 review of Mr McKenzie. Much the same view was expressed by Professor McFarlane. 211 In considering the specialist medical evidence as required by s 10B of the Act and for the reasons dealt with above, Dr Roberts' reports seem to be out of the mainstream of diagnostic opinion placed before the Court and therefore may be put to one side. It also appears that Dr Lewin's report was significantly influenced by a reading of Dr Roberts' first report. Dr Lewin did not see any clear cut evidence of an injury and a depressed condition at the time of resignation but that view seems to flow from the fact that Dr Roberts' report found nothing much was complained of by Mr McKenzie in 1989. Other reports have accepted that, if that was all that was found on presentation, then no different view might be formed but there was sufficient to make further enquiry - something else must have been going on and that something was not pursued by Dr Roberts. Dr Lewin was also influenced by Mr McKenzie's ability to function after leaving the Police Service but his report does not directly address his incapability of performing police work while retaining an ability to perform other work. Importantly, Dr Lewin found that Mr McKenzie had a partially treated major depressive condition that probably arose in 2003. This diagnosis therefore appears to proceed on the basis of various other stressors in Mr McKenzie's life such as alcohol abuse, excessive gambling, financial problems leading to bankruptcy and legal professional problems. Dr Lewin accepted, on the facts alleged by Mr McKenzie, if accepted, that in 1989/1990 he had a range of reactive anxiety and depressive symptoms consistent with an adjustment disorder that appeared to be disabling. These matters lead the Court to place Dr Lewin's report to one side in determining this appeal. 212 Of the remaining medical reports the Court has come to the view that Dr Akkerman's report is the most significant because he is the treating doctor and with some 39 consultations has had the most contact with Mr McKenzie. Only Dr Akkerman has had the opportunity, over an extended period, to observe Mr McKenzie and to test his history against other observable signs. As earlier mentioned, even Dr Akkerman had to wait a significant period of time before being fully advised by Mr McKenzie of the traumatic events that occurred during his police life that continued to disturb him and replay in his mind as well as his later professional problems and bankruptcy It was this evolving disclosure that led Dr Akkerman to amend his diagnosis so as to include PTSD. The Court does not find anything unusual about the circumstances in which the diagnosis was amended - clearly, Mr McKenzie presented as an unusual case in the sense of not highlighting his problems. There were a number of signs pointing to serious problems but they had to be pursued with persistence in order to obtain the full story of his health problems 213 Dr Akkerman's evidence did not attempt to avoid the inconsistencies in Mr McKenzie's history, nor did he seek to avoid some of the difficulties presented by Mr McKenzie's case. His initial diagnosis was that Mr McKenzie suffered from a major depression and as a result, was unable to perform his police work and that injury was directly related to his work as a police officer. His final diagnosis was delayed because he had not seen Mr McKenzie in 1989 and was therefore unable to make any observation about his condition at that time. Indeed, Dr Akkerman could not tell for some time whether Mr McKenzie had the full blown syndrome but ultimately, for his final diagnosis, he was satisfied he met the full criteria. He was not moved to alter his view because of the professional conduct complaint and took a similar view to propositions put to him about the effect of economic pressure, bankruptcy and heavy drinking. He accepted the possibility that Mr McKenzie improved after leaving the Police Service but then encountered triggers that brought back his condition or made it worse. That was a hypothetical possibility but one that Dr Akkerman could not say anything about because he had not seen Mr McKenzie in 1989. 214 Dr Akkerman was not concerned about Mr McKenzie's failure to disclose traumatic events, either to Dr Roberts or initially to himself: avoidance was common in people who suffered PTSD. Dr Akkerman said that often he would be cautious if, initially, a patient told him the full story and it was not unusual to have a patient talk about these events over a period of time as they felt comfortable and able to do so. It was only as Dr Akkerman got to know Mr McKenzie better that Mr McKenzie was able to tell him more about the additional symptoms. Mr McKenzie did not give a lot away (a matter also commented upon by Mrs McKenzie) and Dr Akkerman noted that it was not uncommon for patients with PTSD not to talk about their symptoms or issues and a treating doctor would not pursue those issues if it could worsen the patient's condition. His approach was to allow the patient to talk about these matters when they decided to do so. Over the period of time he had seen Mr McKenzie, he had now come to accept the history he had been given and his version of events. 215 Dr Akkerman accepted that it was difficult to know whether Mr McKenzie was incapacitated for police work in 1989 and at the time of his resignation in 1990. Ultimately, he concluded that his story was consistent. He had complained of stress and had seen his local general practitioner, Dr Breusch, had then taken leave for a long period (2.5 months) and had told Dr Roberts a number of things which Dr Roberts did not regard as being significant. Dr Akkerman considered all these matters as significant and demonstrated to him the consistency of Mr McKenzie's story. In addition to these matters the Court has Mrs McKenzie's evidence that, in late 1989 and into 1990, her husband was taking sick leave, was not as easy going as he had been previously and did not talk much about his work. At this time he became more withdrawn and more distressed and appeared to have the weight of the world on his shoulders. He was going to bed much later. In his last six months as a police officer he appeared "highly strung", was drinking more than usual and drinking to the point of passing out. 216 The evidence supports a finding that, at the date of his resignation, Mr McKenzie could not perform the work of a police officer. That evidence demonstrates that he could not bring himself to do the work, was vomiting regularly before work, took available opportunities to avoid carrying his gun and to perform work in the field, especially using his seniority to direct others to perform that work. He had lost the capacity to interview witnesses and interrogate defendants and felt he could not negotiate as he had in the past. He was avoiding paperwork, including maintaining court files, was lacking in concentration and had become short tempered. Dr Akkerman was asked whether Mr McKenzie's ability to complete his law studies and function as a solicitor was inconsistent with the doctor's ultimate diagnosis. Dr Akkerman replied that he suspected that Mr McKenzie was sick for a long time, that he was a high functioning person and still able to function reasonably well but was not functioning at his normal level. It has been pointed out in other reports that Mr McKenzie seemed to concentrate on easier work such as conveyancing and avoided the more difficult work of a legal practice. 217 As discussed earlier in the use of DSM-IV criteria, the Court, being faced with a variety of opinions, has to keep in mind when dealing with various diagnoses that there is a wide range of behaviour that has to be assessed and the same behaviour may be assessed differently, especially when a practitioner is able to obtain more information and exercise clinical skills that may raise different categorisations as being appropriate or a different assessment of the severity of the disability. Mr McKenzie's case is made more difficult because of the lack of records at the time of his sick leave in 1989 and his resignation in March 1990 and the need to recreate his history in order to assess his present claim. Notwithstanding those difficulties, the Court is satisfied that Dr Akkerman has a firm basis for his diagnosis and that there is other evidence that corroborates and supports the consistency of Mr McKenzie's history of health problems. 218 Dr Young had treated Mr McKenzie for PTSD from mid-2004 before referring him to Dr Akkerman. In his opinion Mr McKenzie was suffering for a long time, experiencing traumatic events during his police service. In his view, Mr McKenzie was not able, in the foreseeable future, to perform police work. Dr Young was not required for cross-examination. 219 Mr de Bakker saw Mr McKenzie between 2004 and 2005 and he was then suffering from a major depressive disorder and PTSD. He referred Mr McKenzie to Dr Akkerman. Mr de Bakker noted that, with this condition, there could be a waxing and waning of symptoms during a patient's lifetime and the symptoms could vary over time. The symptoms could intensify in response to reminders of original trauma, life stressors or new traumatic events. In Mr de Bakker's opinion, Mr McKenzie's condition deteriorated in early 1990 and he resigned because he could no longer cope with police duties. Mr McKenzie would be incapacitated for the foreseeable future for those duties and the PTSD was chronic. Mr de Bakker was not required for cross-examination. 220 Professor McFarlane had seen Mr McKenzie over a three-hour period and formed the view that his description of his symptoms were not contrived or learnt. The Professor noted that was an important observation. From the history supplied by Mr McKenzie, he suffered from PTSD with major depressive disorder and intermittent binge alcohol abuse. The PTSD related to a number of experiences he endured as a police officer. It was noted that, in Mr McKenzie, avoidance manifested itself in several ways and that the distress associated with traumatic recollections made him actively shutout and avoid those recollections. Professor McFarlane had Dr Roberts' report and said that report contained important factual information but did not assess the symptoms of PTSD. The Professor commented that, from the terms of Dr Roberts' report, Mr McKenzie was not exaggerating or over emphasising his symptoms in the workplace. In the Professor's view, Dr Roberts did not specifically enquire from Mr McKenzie as to the nature of exposure to events of the type that could lead to the condition of PTSD. During his career as a police officer, Mr McKenzie's exposures to these events were the most important aetiological factor that initiated his distress. 221 The Professor explained how this condition could progressively worsen. The Professor was of the opinion that Mr McKenzie was permanently disabled. He explained how Mr McKenzie had developed a way of practising law that adapted to his underlying disabilities of sustained attention and concentration. In his opinion, at the time of his resignation, Mr McKenzie had an ongoing capacity for work but there was a significant risk to him continuing with that work with the probability of further traumatic exposure such that it placed him at a substantial risk to his condition worsening. The Professor did not believe that the 2005 Law Society inquiry had a temporal association with his disabilities and that his intrusive nightmares had nothing to do with the Law Society. He thought it improbable that Mr McKenzie had deliberately withheld information from Dr Akkerman or Dr Delaforce. Professor McFarlane was not required for cross-examination. 222 Professor McFarlane's report is substantially supportive of Dr Akkerman's report. The one difference noted by the respondent was that, in Professor McFarlane's view, at the time of his resignation, Mr McKenzie had a capacity for work and it is clear that he continued his legal studies and then entered the legal profession as a solicitor. The Professor was not required for cross-examination but on an overall consideration of his report, he seems to say that the nature of Mr McKenzie's condition was such that, at the time of resignation, he could not perform police duties and was at risk if he continued to do so but he could perform other work and indeed, he had found a way of practising law that was not substantially affected by his lack of attention and concentration. It will be recalled that, in other reports, comment was made that Mr McKenzie had concentrated on easy legal tasks such as conveyancing. Mr McKenzie's own evidence was that he concentrated on easy work, including conveyancing and avoided more complicated work to the point of handing back personal injury files. 223 Dr Delaforce was of the view that, in 1989 and 1990, Mr McKenzie had not pressed on with this Hurt-on-Duty claim because his condition was such that he just wanted to get out of the Police Service. Mr McKenzie knew from discussions with the Police Medical Officer that a retirement claim for being hurt-on-duty would not automatically occur, they were thoroughly tested as claims and there could be a long fight to achieve retirement. Dr Delaforce records that he was aware of others having a stressful fight to gain recognition of a Hurt-on-Duty claim. At the time of seeing Mr McKenzie in 2007, Dr Delaforce diagnosed his present complaint as PTSD, mild chronic and major depressive disorder. These disorders continued since their onset in the late 1980s and Dr Delaforce could only identify his police work as the likely cause of the condition. The doctor also spoke of alcohol abuse (a fact contested by Dr Roberts but confirmed by Mrs McKenzie). There appeared to be some improvement after he left the Police Service but Mr McKenzie deteriorated in 2003 when he complained of being in a worse state than ever before. The 2003 deterioration could have been just the natural course of his condition and it was noted that symptoms could change over time. The condition was permanent and the prospects of recovery were minimal. Dr Delaforce thought that Mr McKenzie was probably incapable of discharging full operational duties at the date of resignation. It was this condition and his alcohol abuse that caused his inability and incapacity at the time of resignation. It was noted that PTSD and major depression disorder could follow a variable course and could wax and wane and therefore change after he left the Police Service, getting better then getting worse. 224 Dr Delaforce, however, was concerned at not being given the details of Mr McKenzie's legal profession problems and that a Receiver was appointed to his practice. He felt misled by Mr McKenzie regarding these matters and Mr McKenzie's alleged bewilderment at not knowing why things were spiralling downwards in 2003 when these factors were all relevant. Dr Delaforce assumed a connection between these events in Mr McKenzie's life and the deterioration in his condition in 2003 but could not confirm it. However, Dr Delaforce did not explain how, for instance, bankruptcy in 1998 (especially as described by Mrs McKenzie) could have led to deterioration in 2003. Also, there was no explanation as to how Mr McKenzie's legal professional difficulties that he first became aware of in 2005 could have had an effect in 2003. A fair basis appears to have been established for dismissing these two matters as causing the 2003 deterioration and on that basis, Dr Delaforce's concerns about what he had not been told by Mr McKenzie are, at least, somewhat mollified. It was only these non-disclosures that caused Dr Delaforce to call into question Mr McKenzie's history and raised the prospect of whether or not it could be relied upon but he was also able to say that, if the history could be relied upon, it supported Dr Delaforce's original diagnosis. He accepted that, if Mr McKenzie's reasons were correct, they were convincing. Given that the Court has accepted Mr McKenzie's evidence as truthful then the events concerning Dr Delaforce, in proper perspective, were most unlikely to affect his initial diagnosis. On this basis Dr Delaforce's opinion is strongly confirmatory of Dr Akkerman's opinion. 225 It was significant that Dr Delaforce, in accepting Mr McKenzie's history, also accepted that Mr McKenzie was not leaving the Police Service just for a career change. He was able to seek resignation but did not do so and that course may have overcome many difficulties of a truly personal nature with the head detective if that was the only or substantial problem. Dr Delaforce otherwise accepted Mr McKenzie's reasons for taking up his legal studies and regarded them as "reasonable". Further, Dr Delaforce regarded Dr Breusch's reports leading to 2.5 months' sick leave in late 1989 as showing "pretty substantial symptoms". Dr Delaforce accepted that Dr Breusch was well qualified and qualified beyond the usual level of a general practitioner. 226 In relation to the number of matters Mr McKenzie raised with Dr Roberts, Dr Delaforce believed that, at least, they strongly suggested a reasonable probability of a mental disorder at the time - they were very significant in themselves but there were other symptoms. He agreed however that, on the basis of what was told to Dr Roberts, it would not lead to a diagnosis on PTSD but significant matters were raised requiring further enquiries and the fact they were not ventilated did not mean there was nothing to be explained or that there was nothing about which Mr McKenzie could complain. 227 Considering Mr McKenzie's legal career, his marriage and periods of socialising after he left the Police Service, suggested to Dr Delaforce that PTSD was not continual until it deteriorated in 2003. It was possible that Mr McKenzie had a depressive disorder because of his financial circumstances and bankruptcy and those circumstances may raise the possibility that the condition ended but renewed in 2003 because of those personal stressors. There appeared to be some improvement after he left the Police Service. Nevertheless, all matters considered and on balance, Dr Delaforce stated that he was comfortable confirming his diagnosis. It was not unusual with mental disorders to have them arise and then improve and later deteriorate because of triggers or stressors. Dr Delaforce accepted that Mr McKenzie did not express all his concerns to Dr Roberts in late 1989 because he did not want the pension and he knew about the problems of securing hurt-on-duty benefits when all he wanted was to just get out of the Police Service and, in his view, that was reasonable. 228 The above brief summary of Mr McKenzie's often lengthy medical reports provides reasonable answers to the queries raised by the respondent. Both at the level of the disputes committee and on the appeal, the respondent was concerned about: inconsistencies in Mr McKenzie's story; that there were clearly periods when he was much happier and in a contented mood; that; in 1989, he told Dr Roberts there was not much wrong with him; and, his continued condition was inconsistent with continuing his studies and entering practice as a solicitor. All of those matters are adequately dealt with in the various opinions obtained and provide convincing reasons why those matters would not detract from a finding that, at the time of Mr McKenzie's resignation, he was incapable of discharging his duties as a police officer because he was suffering an infirmity of mind, namely, post-traumatic distress disorder and major depression, nor do those matters call into doubt that Mr McKenzie was incapable, as described, for the foreseeable future. As earlier explained, Mr McKenzie's bankruptcy in 1998, his legal professional problems in 2005 and further, bankruptcy application in 2006, do not operate to alter the Court's assessment of Mr McKenzie's condition and its ongoing nature. 229 In addresses, Mr McKenzie's counsel suggested that, on one aspect of Professor McFarlane's opinion, there was another approach available to Mr McKenzie pursuant to s 47 of the Workers Compensation Act, namely, that he was at such risk in 1989/1990 from his condition, that although capable of work as a result of the injury, he was unable, without substantial risk of further injury, to engage in his employment as a police officer such that he should be deemed to be incapacitated for that employment. While that submission may be one of substance and not lightly put aside, the Court, having regard to the evidence and a consideration of the medical opinions provided, does not need to resolve the application of s 47 of the Workers Compensation Act in light of the conclusions it has otherwise reached. It is also appropriate to make brief comment about the availability of the discretion to compromise a claim pursuant to s 66 of the Superannuation Administration Act. Bearing in mind the comments of the Full Bench of the Court in Hazlewood, should that discretion be available, as it seems to be in proceedings such as these, the Court would have been persuaded to exercise that discretion in favour of Mr McKenzie should the medical evidence have been closely balanced. For the reasons already expressed, the Court finds that the preponderance of the evidence, especially the medical evidence, is in favour of Mr McKenzie's claim and therefore resort to the powers available under s 66 is unnecessary. ORDERS 230 For the above reasons, the Court makes the following orders: 1. The appeal is upheld. 2. The Court certifies that, for the purpose of s 10B(2) of the Police Regulation (Superannuation) Act 1996, ANTHONY RONALD McKENZIE, at the time of his resignation from the New South Wales Police Service on 11 March 1990 was, from the infirmity of mind, namely, post-traumatic stress disorder and major depression, incapable of discharging the duties of his office as a police officer. 3. The applicant is to have its costs as agreed or assessed. AMENDMENTS HISTORY: 26/10/2009 - Additional paragraph to the orders (order 3) - Paragraph(s) 230 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.