New South Wales Supreme Court CITATION : Doherty v State of New South Wales [2010] NSWSC 450 23 November 2009 24 November 2009 25 November 2009 26 November 2009 HEARING DATE(S) : 30 November 2009 1 December 2009 2 December 2009 4 December 2009 16 December 2009 17 December 2009 JUDGMENT DATE : 20 May 2010 JUDGMENT OF : Price J at 1 DECISION : 1. Order that the limitation period within which the plaintiff was entitled to commence these proceedings be extended up to and including 13 March 2008. 2. Verdict and Judgment for the plaintiff in the sum of $753,676.85. 3. I shall hear the parties on the question of costs. CATCHWORDS : NEGLIGENCE - duty of care - police officer in Forensic Services Group - psychological injury sustained in the course of work as crime scene investigator - defendant's duty of care not discharged by referral of the plaintiff to a psychologist and general practitioner - duty of care non-delegable - allegation that defendant breached its duty of care by, inter alia, failing to have plaintiff clinically interviewed by a psychologist after psychometric testing - failing to place him on restricted duties and closely monitor him upon return to work - by exposing him to crime scenes when he was unwell - by failing to specifically test for PTSD and by failing to refer him to a psychiatrist - breach of duty denied - breach of duty found - CAUSATION - whether any causal connection between psychological injury and breach of duty - causal connection found - CONTRIBUTORY NEGLIGENCE - allegation that the plaintiff was contributory negligent by, inter alia, failing to disclose his symptoms - contributory negligence denied - contributory negligence found and assessed at thirty five per cent - LIMITATION OF ACTION - causes of action which accrued in 2003 and 2004 not out of time - extension of limitation period for cause of action which accrued in 2001 - DAMAGES - whether there should be a deduction for damage not caused by the defendant's negligence - assessment. Civil Liability Act 2002 Part 2, Part 5, s 5B, s 5B(2)(c)-(d), s 5C, s 5D, s 5R, 5R(1), s 5R(2), s 13, s 13(1), s 50 Occupational Health and Safety Act 1983 s 15(1) Occupational Health and Safety Act 2000 s 8(1)(c), s 32, s 39A LEGISLATION CITED : Occupational Health and Safety Regulation 2001 Ombudsman Act 1974 s 31 Police Act 1990 s 6(1), s 8(2), s 8(3) Police Regulation (Superannuation) Act 1906 s 10(B)(3)(a) Limitation Act 1969 s 5R(2), s 18A, s 50C, s 50D(1), s 50D(2), s 60E(1) Social Security Act 1991 (Cth) s 23(5A) CATEGORY : Principal judgment Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 Amoud v Al Batat [2009] NSWCA 333 Baldwin v Lisicic [1993] NSWCA 18 Baker-Morrison v State of New South Wales [2009] NSWCA 35 Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20 Doherty v State of New South Wales [2009] NSWSC 1345 CASES CITED : Dulieu v White & Sons [1901]2 KB 669 Kondis v State Transport Authority [1984] HCA 61 McLean v Tedman [1984] HCA 60 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 New South Wales v Fahy [2007] HCA 20 S v State of New South Wales [2009] NSWCA 164 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 PARTIES : Barry Doherty State of New South Wales FILE NUMBER(S) : SC 2008/20078 COUNSEL : Mr P Doherty SC & Mr M McAuley (Plaintiff) Mr P Menzies QC & Ms J Chapman (Defendant) SOLICITORS : Walter Madden Jenkins Solicitors (Plaintiff) McCabe Terrill Lawyers (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PRICE J 20 May 2010 2008/ 20078 Doherty v State of New South Wales JUDGMENT 1 HIS HONOUR: Barry Doherty, the plaintiff, is a former police officer who was medically discharged from the New South Wales Police Force (the police force) in November 2007. He was sworn in as a member of the police force on 21 June 1985 and in January 1988 commenced full-time duties with the Forensic Services Group (FSG) at Hurstville. In September 1989, he transferred to the FSG at Wollongong where he worked as a crime scene investigation officer until he ceased work in May 2005. 2 On 13 March 2008, the plaintiff commenced proceedings in which he alleged that he suffered Post Traumatic Stress Disorder (PTSD) as a result of the negligence of the defendant, the State of New South Wales, represented by the police force. In a second amended statement of claim filed at the commencement of the hearing before me on 23 November 2009, the causes of action included a breach of statutory duty as well as the claim in tort. This cause of action is founded before 1 September 2001 upon an asserted breach of s 15(1) Occupational Health and Safety Act 1983 (the 1983 Act) and thereafter upon asserted breaches of s 8 and s 8(1)(c) Occupational Health and Safety Act 2000 (the 2000 Act) and various regulations of the Occupational Health and Safety Regulation 2001 (the regulations). 3 The particulars of negligence alleged in the second amended statement of claim are as follows: (a) Failing to take any or any adequate care for the plaintiff in circumstances where the defendant knew or ought to have known that the plaintiff was vulnerable to psychological injury. (b) Failing to adequately monitor the plaintiff's coping with constant exposure to scenes of death. (c) Failing to provide a system whereby the plaintiff was adequately monitored and reviewed (whether by appropriate testing or diagnostic interviews or otherwise), and if necessary, referred for treatment, provided with leave and/or transferred to alternative duties so that the illness did not develop in a fully fledged manner, or alternatively become chronic. (d) Failing to recognise the plaintiff's symptomatic behaviour and refer the plaintiff for appropriate treatment, if necessary, providing him with leave from his duties or other work unlikely to aggravate his then condition. (e) Failing to withdraw the plaintiff from further traumatic exposures. (f) Failing to act on indications of developing psychological illness. (g) Adopting a form of psychological testing which was either ineffective or inappropriate or not acted on. (h) After the plaintiff's symptoms first became evident, returning the plaintiff to duties which were unsuitable and which caused the plaintiff's condition to become worse. 4 Prior to the commencement of the hearing before me, Hulme J heard a motion on 17 and 18 November 2009 by the plaintiff to vacate the hearing date and for leave to rely upon a second amended statement of claim. The proposed pleading contained not only the statutory count but particulars of negligence other than those quoted at [3] above. The defendant opposed the applications. His Honour refused the application to vacate and refused leave to amend the particulars of negligence. The plaintiff was allowed to rely on the statutory count but only pursuant to the claim as pleaded in particulars (a) to (h). 5 In a defence to the second amended statement of claim filed on 23 November 2009 the defendant admits that there was a reasonably foreseeable risk that FSG officers could suffer psychological injury and that if suffered there was a reasonably foreseeable risk that it would be significant. The defendant, however, denies that it was reasonably foreseeable that the plaintiff would suffer such a risk of such an injury. The defendant does not admit that it owed a duty of care to the plaintiff. Moreover, the defendant denies that it breached such a duty. Voluntary consent to risk and contributory negligence are also pleaded. The defendant denies any breach of statutory duty and relies upon ss 32 and 39A of the 2000 Act and its predecessors. The defendant asserts that the plaintiff's claim is statute barred according to the provisions of the Limitation Act 1969. The issues in dispute 6 The defendant's statement of issues in dispute identifies that there is an issue: (i) as to whether the plaintiff's cause of action is statute barred; (ii) the scope and content of the duty to take reasonable care; (iii) as to whether, and if so in what respects, the defendant was in breach of duty; (iv) assuming breach, that the plaintiff's psychiatric illness was caused by any breach of duty; (v) as to whether, upon ceasing work, or at any time the plaintiff was suffering from a post-traumatic stress disorder; (vi) as to what is meant by sensitisation or "kindling"; in the context of post traumatic stress disorder; (vii) as to what a reasonably prudent employer in the position of the defendant knew or ought to have known at any relevant time; (viii) as to whether any psychiatric injury suffered by the plaintiff was caused by exposure to traumatic events or as a result of other matters including his marital breakdown in 2003; (ix) about the plaintiff's present diagnosis; (x) about the plaintiff's prognosis, including his capacity for work; (xi) about the plaintiff's future treatment requirements; (xii) about when the plaintiff should have first received treatment; (xiii) about the plaintiff's past and future domestic, gardening and handyman assistance requirements; (xiv) about whether there would have been any difference to the plaintiff's condition if treatment had been instituted at a time earlier than any treatment which has been administered; (xv) about whether a regime of rotation in, or removal from, the work place would have been effective in preventing any psychiatric injury; (xvi) about whether the psychological investigations and testing carried out on the plaintiff by the defendant were adequate for the purpose of identifying any psychiatric disorder. 7 A general statement was made that there are issues arising out of Part 5 Civil Liability Act 2002. Those issues are not otherwise identified in the document. There is, however, no issue: (a) that from November 1988 it was reasonably foreseeable that officers in the FSG could be at risk of suffering psychiatric injury if they performed duties which exposed them to traumatic events in circumstances which satisfied diagnostic criteria for a post traumatic stress disorder; (b) that the defendant was under a duty to take reasonable care for the safety of the plaintiff. 8 Whilst the defendant accepts that it owed the plaintiff a duty of care, the precise scope and content of the duty of care are controversial. Furthermore, although the defendant accepts that a risk of psychiatric injury to a police officer working in crime scene investigation is reasonably foreseeable, the defendant does not accept that a risk of injury to the plaintiff in particular was foreseeable. No reliance was placed by the defendant during the hearing on voluntary consent to risk although this defence was pleaded. 9 One of the identified disputed issues was whether the plaintiff was at any time suffering from PTSD. The defendant, however, in its closing written submissions accepted at par 8.1 that "PTSD was caused by the plaintiff's exposure in the workplace to traumatic events, that is those where the plaintiff's subjective response satisfied the DSM-IV diagnostic criteria." The defendant acknowledged that it would be liable in negligence if the disorder was caused, in the sense of materially contributed to, by the defendant's breach of duty. It is hardly surprising such a concession was made. The psychiatric evidence overwhelmingly supported the plaintiff's claim that he was suffering from PTSD. There is some disagreement, however, as to the genesis of the PTSD and as to the plaintiff's prognosis. 10 The questions of breach of duty, causation and contributory negligence are governed by the Civil Liability Act 2002 – in particular ss 5B, 5C and 5R: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 at [27]; Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364. The onus of proof of breach and causation is on the plaintiff on the balance of probabilities. 11 The plaintiff was represented by Mr P Doherty SC with Mr M McAuley and the defendant by Mr P Menzies QC with Ms J Chapman. To avoid confusion arising out of the identical surnames of the plaintiff and his senior counsel, any reference to 'Mr Doherty' in this judgment other than in quoted portions of the trial transcript, will be a reference to Mr Doherty SC. Matters of evidence 12 The plaintiff was born on 11 May 1963. His father was a police officer who rose to the rank of Chief Inspector and Patrol Commander at Corrimal. From an early age, the plaintiff aspired to joining the police force but on leaving school at 15 years of age commenced a boilermaker apprenticeship with BHP at Port Kembla. He did so as his father had encouraged him to complete a trade before becoming a police officer. Having completed his apprenticeship, he worked as a boilermaker at a mining site in Queensland. The plaintiff married Sharon Doherty on 25 May 1985. There are three children of the marriage. 13 After being sworn in as a member of the police force on 21 June 1985, he was stationed at various police stations in Sydney on general duties. In January 1987 when driving a police vehicle on emergency duty the plaintiff was involved in a motor vehicle accident as a result of which he was summonsed for culpable driving. Although the evidence does not disclose the outcome of the proceedings, it is evident that the summons was either withdrawn or dismissed. Unsurprisingly, the plaintiff found the accident to be an upsetting event. He was referred to the Police Psychology unit and was seen by a medical officer, Dr Anderson and a psychologist, Mr Raue. The plaintiff accepted in cross-examination that as early as 1987 he was aware of the existence of the Police Psychology unit, that he initially, when he felt the need, took the opportunity of attending at the unit and that the psychologist provided him with techniques to deal with anxiety. The plaintiff's career in crime scene investigation 14 In January 1988 the plaintiff commenced full-time duties with the FSG at Hurstville. During 1988 he completed courses in crime scene examination, forensic medicine and police drafting. The plaintiff recounted that when he commenced with the FSG, he received his training through an apprenticeship-like system, learning on the job with experienced officers. He was promoted to the rank of constable first class in 1990 and obtained the designation of an expert for court purposes in 1993. 15 The plaintiff described his work as a crime scene officer as follows (ex A pars 69-80): " I was in particular, required to attend numerous crime scenes involving death or serious injury. I also attended serious motor vehicle accidents. My work involved the detailed examination of incident sites, scenes with bodies in-situ, recording of details, the collection of exhibits, subsequent attendance at post-mortem examinations to assist forensic pathologists with the correct interpretation of gunshot wounds and the collection of bullet fragments and other trace evidence, as well as the compilation of briefs of evidence for presentation in court and other enquiries. On occasion my duties required me to deal with grieving friends and relatives of deceased persons. My duties require me to be 'hands-on'. As such, I was required to handle, search, examine and remove deceased persons from scenes that I attended. I was, on occasion, required to get down on my hands and knees and search through, by hand, pools of coagulated blood to ensure no evidence was missed. I made examinations, both physical and microscopically of blood-stained and biologically contaminated artefacts (firearms, bullets, cartridge cases, clothing from victims, doonas, curtains, doors, motor vehicles, rooms etc. I was required to attend post-mortems to attend to various matters. I worked lengthy periods without rest days. I was on-call for extensive periods. Due to court commitments, I often had holiday periods disturbed due to recalls to attend court." 16 During oral testimony, the plaintiff related what his role was when a suicide was suspected (T 20 L 39-50, T 21 L 1): "Our role in a suicide would be, first of all, to make - carry out an examination of the scene, first of all, to make sure that it was a suicide and it wasn't something more suspicious. We have examined, say, in the case of a hanging, nearly all the time we would arrive there, the body would still be hanging from the rafters or the roof or whatever. It was our job to then cut the deceased down. We would make a physical examination of the body, check to make sure there was no injuries that weren't consistent with a suicide. The same as with if it was a shooting suicide, we would be required to examine the deceased looking for projectiles. So it was - it was hands on, like we would physically examine the bodies to make sure there wasn't any other injuries that wasn't consistent with a suicide." 17 It is unnecessary to detail here the numerous scenes which the plaintiff investigated. They are referred to in the schedule annexed to the statement of claim and in his witness statement. His duties included disaster victim identification following aviation accidents and the Newcastle earthquake. He attended many post mortems and investigated deaths by drowning. One of the drowning scenes that he attended involved six people, three of whom were children, from the same family at the Kiama Blowhole in July 1992. 18 The plaintiff recounted "abusing alcohol fairly regularly" in 1998-1999 to give himself "a bit of relief from some of the things [he] was feeling." He described being extremely anxious at home and at work. He said (T 23 L 5-6): "I started to have nightmares about some of the jobs that I'd attended and using alcohol on some nights was preventing me from having those nightmares." 19 He identified a number of crime scenes which he had investigated as the source of the nightmares. The plaintiff had attended a crime scene where Senjzana Valevski and her three children had had their throats cut in June 1994. All four bodies were piled up, he stated, beside a bed with the babies on the bottom. One child was a 7 year-old girl and the others 3 month-old twin girls. It was set up to be a murder/suicide. The plaintiff said (T 23 L 15-19): "It was a very horrific scene. He'd cut all their throats with a large knife and it almost got to the situation where, especially with the two young babies, where their heads were nearly completely severed from their bodies." 20 The plaintiff said "one of the things I struggled through my whole service is I struggled with jobs where there was children involved and I was unlucky to get a number of these during my time." He referred to another "fairly brutal" murder scene where there was a mother, a 17 year-old son and a 13 year-old daughter who had been bashed to death by their older brother. It seems that the plaintiff was referring to the triple murder at Albion Park which he attended on 13 March 1996 and describes at ex A pars 670-696. He was at the murder scene for about nine hours and described Mrs De Gruchy's body as being so badly bashed that she was unrecognisable. He recounts having "flashbacks from time-to-time about the scene" and "regular nightmares about the job." 21 He recalled that there was a group debriefing at Port Kembla police station after the "Valevski murders" which he was told was a trauma counselling session but there was no follow-up. After the "De Gruchy murders", he recalled attending a debriefing with other police officers conducted by Mr Mutton of the Police Psychology section. He stated that he was reluctant to say much at the debriefing about his personal feelings in front of so many fellow police officers. The psychology section debriefing notes reveal that the plaintiff attended a debriefing session with six other police officers that was conducted by David Mutton, a psychologist (ex B v 1 p 12). 22 In oral testimony, he related being part of a disaster victim identification team in April 1998 which attended the scene of plane crash in the Kosciusko National Park. Six people had been killed. He described the number of body parts as being "horrendous". The plaintiff details at ex A pars 946-960 the tasks that he performed at the accident scene which included the collection and individual bagging of body parts. 23 There was a group debriefing on 30 April 1998 at Cooma police station involving two psychologists from the Police Psychology section. There were, he said, about twenty to thirty people there and there was "no one on one contact with the psychologists." He was reluctant to express his "innermost feelings" in front of so many other persons. The psychology section debriefing notes reveal that twenty-one persons attended and the psychologists present were David Mutton and Hilary Lindgren (ex B v 1 p 15). 24 The plaintiff described the scene of the mutilation murder of David O'Hearn in June 1998 as being "probably one of the worst scenes that [he] attended". The plaintiff said (T 25 L 41-50; T 26 L 1-3): "… we found the deceased when we got there and he was lying on the floor in the lounge room of his unit. He was a single man. He had been beheaded. His head had been cut off with a knife and a saw. The offender had placed his head in the sink in the kitchen. He used a corkscrew to try and pull his eyes out. He had been disembowelled. Some of his intestines and his bowel were laid out on a silver-serving tray on the floor in the lounge room. There was some other intestines draped over the breakfast bar in the kitchen area. There was an attempt made to sever his body around the abdomen as well, but they hadn't been able to cut through the spinal cord. But they'd severed his left hand and they'd been dipping that in the blood and then writing stuff all over the walls in the room." 25 He was unsure in this case whether there was a debriefing or any psychological follow-up. 26 Nine days after attending the O'Hearn murder scene, the plaintiff attended the scene of the murder of Frank Arkell. The same offender had committed the crime but the deceased was "fortunately not mutilated to the same extent as David O'Hearn." Mr Arkell had massive head injuries and tie pins had been struck in his eyes and cheeks. 27 The plaintiff was not able to put these matters behind him. The plaintiff said (T 26 L 21-29): "At that stage, getting into the 2000's, I was getting nightmares on a quite regular basis. I've had flashbacks sometimes of the day and night, which sometimes they were triggered by things I saw on television or sometimes they would just happen for no reason. I was having immense trouble sleeping. When I did get to sleep I was having nightmares most nights. I was really, really hammering the alcohol around that time." 28 The plaintiff described having "flashbacks and nightmares" about the O'Hearn crime scene and being constantly reminded of the scene by the wall tiles in his house (ex A par 994). 29 During cross-examination the plaintiff's testimony on this topic included the following (T 68 L30-24): "Q. But the fact is that any feelings of extreme fear, helplessness or horror, which might attended on you going to these events, are feelings that have only occurred relatively recently, that is to say, from around the year 2000 onwards? A. No, definitely not. They go back as far as the Valevski homicide." 30 He nominated the double murder of the Haines's sisters and the death of David Athill, a five year-old boy, as other scenes which he had investigated prior to 2003 as giving rise to feelings of fear, helplessness or horror. The death of Pamela Northey in a motor vehicle accident on 2 March 1993 had really upset him for a few days after he had attended the scene but he could not recall "having any nightmares about that incident until into the early 2000's when things started to get worse" (T 93 L 11-12). Mrs Northey had been the mother of a friend who had been run over by a truck when riding a pushbike and had almost been severed in half (ex A pars 450-456). He agreed with Mr Menzies that by the expression "flashback" he meant more than "a feeling as if the event were happening again" but included disturbing memories and things he did not want to think about (T 74 L 10-15). Flashbacks, he said, were happening before 2003 "but not as regularly as they were from the 2000's" (T 73 L 40). 31 In re-examination, when asked by Mr Doherty to give an example of a flashback, the plaintiff said (T 219 L 44-50; T 220 L 1-3): "My understanding of what I call flashbacks, sometimes they can be as little as something might happen and you will get an image come into your mind where you can actually see - like see the scenes you have been to. Maybe the case I will get an image of my cousin in the mortuary when I have unzipped the body bag but there is other ones. For example, I had been to visit some friends of mine who had just given birth to some twins through the IVF programme. I had been nursing one of those babies, young Joshie, and he had gone to sleep. I had gone to put him back in his crib and in doing so, the baby's head went back and the image I received was I was holding one of the Valevski babies. I've run to the bathroom and I have been violently ill." 32 On 16 February 2001, the plaintiff attended, as a member of a disaster victim identification team, a fatal crash of a New Zealand Air force fighter aircraft at HMAS Albatross near Nowra. He became subsequently aware that he might have been exposed to depleted uranium. Although he found the incident disturbing, he stated that at the group debriefing he was reluctant to say anything much in front of his fellow police officers. The plaintiff said that the scene of the Nowra air crash, although not pleasant, was not one of the scenes that gave him ongoing problems. 33 The plaintiff underwent psychometric testing by the Police Psychology section on 9 April 2001. The test was conducted in a work room at Wollongong police station with other police officers present. He recalled "the humorous conversation amongst the officers completing the test, making cracks about particular questions asked, and the most appropriate answers" (ex A par 1325). He received an email from Mr Mutton and Ms Stamoulis, psychologists in the Police Psychology section on 5 June 2001 enquiring if he was "still travelling okay" in relation to the fatal air crash in February to which he replied that everything was going alright and he was waiting for an appointment to see a doctor specialising in nuclear medicine. e testified that he misunderstood the nature of the psychologists' enquiry and thought that they were asking about his concerns of radiation exposure. The plaintiff said that at that time he was not coping well and was still "having heaps of nightmares and … [had] become a bit withdrawn at home." 34 It is apposite to note that the plaintiff` was seen by Dr John Harvey, his general practitioner, on 25 February 2002. Dr Harvey's clinical notes reveal that he had come "in for a check up…[had] not been feeling himself". The plaintiff complained of headaches at work when on the computer or on the microscope and neck stiffness. Dr Harvey found "No signs of depression" (ex B v 4 p 6). The plaintiff accepted in cross-examination that he did not raise any concerns with Dr Harvey relating to his mental state. When asked by Mr Menzies (T 124 L 47-49): "Q. Indeed you did not have any concerns relating to your mental state? A. Well, at that stage I was having like nightmares and stuff like that but it wasn't something I raised with the doctor, No." 35 Whilst dropping off some papers at the hospital in May 2002, the plaintiff was asked by the mortuary assistant to look at an unidentified deceased. When shown the body, the plaintiff realised that the deceased was his close friend Bill Carvino. They had grown up together and referred to each other as cousins. The plaintiff described himself as being "absolutely shattered". One of the roles of a crime scene officer was the identification of deceased persons which included organising fingerprinting. 36 On 25 June 2002 the plaintiff underwent psychometric testing by the Police Psychology section which, he stated "was completed in a room with a number of other police officers, making quips about the nature of the test." 37 I digress to summarise the plaintiff's progression in the police force. He was promoted to Senior Constable in June 1994. In February 1996 he completed a peer support course at the Goulburn Police Academy and was appointed a Peer Support Officer which position he held until he ceased work. He completed a Certificate IV course in team leadership in 1997 and a Diploma of Applied Science (Forensic Investigation) in May 1997. In May 2001, he was promoted to Detective Sergeant, a position he had relieved in over the years. He had also relieved in the zone supervisor's position. In August 2002, the plaintiff passed the pre-qualifying assessment for Inspector level. He states that there was limited promotion available at the crime scene section in Wollongong and had intended to seek promotion to the position of Inspector in Sydney or elsewhere (ex A pars 1344, 1510-1511). 38 He agreed in cross-examination that he did not apply further for promotion. He did not attend the assessment centre which was, he thought, the next step in the process. Things were starting to happen that made him think that he would not be able to cope with the process. 39 The plaintiff described the role of a Peer Support Officer as follows (T 48 L 9-14): "It was a role they started off in the mid 90's, I think, where police would - you went and done a course and you were - you learn about how to look after your colleagues, like identify if you thought they might have been not travelling well and then you would have a conversation with them and if they were happy to you could refer them on to the Police Psychology Unit." 40 The peer support course had dealt with PTSD in some detail. When taken by Mr Menzies to the resource booklet for the peer support program prepared by the Police Psychology section in 1996, the plaintiff gave the following evidence (T 72 L 45-49; T 73 L 4-21): "Q. You will see there then, that part of the course involved and indeed at page 28 and you are quite right it is unnumbered, but 27 and 29 are, so Post-traumatic Stress Disorder is dealt with in some detail? A. Yes. Q. So, as at 1996 it would be fair to say, wouldn't it, that you were aware of the concept of Post-traumatic Stress Disorder? A. Yes. Q. And you were aware of what characterised it and that was, first of all, there had to be a traumatic event? A. Yes. Q. Outside the range of usual human experience which was markedly distressing because it involved a serious threat to someone's life or something like that and the response of the person, in this case you, involved intense fear, helplessness or horror? A. Yes. Q. Then it goes on to deal with what are the, what a person who is suffering from Post-traumatic Stress Disorder might suffer? A. Yes. Q. And what the result of that is, so far as that person's response, see that? That's the third dot point on the page, "There is an avoidance of things associated with the trauma"? A. Oh yes, yes." 41 The plaintiff separated from Sharon Doherty on 29 April 2003. The marriage had been unhappy for some time and they had been living separately and apart under the same roof. Although the separation was initially "quite amicable", the plaintiff experienced difficulties obtaining access to his children but parenting orders were obtained "fairly quickly" which resolved this issue (T 13 L 5-10). In 2005 the plaintiff and Sharon Doherty were involved in proceedings before the Federal Magistrates Court. The decision in these proceedings was the subject of an appeal to the Family Court of Australia. Shortly after the separation in 2003, the plaintiff commenced seeing his present wife Leisa Atherton. They had been friends for many years and the relationship developed. They began living together in May 2004 and married in 2007. He testified that issues developed with Mrs Doherty when he commenced seeing Ms Atherton. Mrs Doherty acted, he said, fairly aggressively towards Ms Atherton and mutual domestic violence orders were taken out. He had been told by Ms Atherton that his then wife had threatened to destroy his career and make false reports to his boss. It was, the plaintiff said, an "extremely difficult time". He informed Detective Sergeant Hodder, his supervisor, about the threats who then arranged for him to see Marion Bloom, a psychologist, through the Employee Assistance Program (EAP). When he saw Ms Bloom on 19 May 2003, he had a long conversation about his wife with whom he was "very angry at the time". He agreed that he told the psychologist that he felt himself under stress, was thinking about a holiday and "would go to the GP to get something to help [him] sleep" (T 131 L 31-50). He believed that he had some conversation with Ms Bloom about the issues he was having at work. 42 Ms Bloom's clinical records of this consultation are found at ex B v 4 p 34. Ms Bloom recorded in an "Initial Assessment Form" that the plaintiff's "presenting problems" were primarily "grief" and secondarily "work stress". She assessed the plaintiff's "work-related issues" as being "4" (on a scale of 1 to 4) which equated to "extreme" and identified the work-related problem as being "work stress". Ms Bloom also noted that the plaintiff had extreme "behavioural health problems" specified as being "grief/bereavement" and extreme "marital/relationship problems" specified as being "breakdown/separation/divorce". Ms Bloom referred the plaintiff to medical care from "his own doctor". She rang Dr Harvey and the plaintiff was placed off work from 20 May 2003 until 4 June 2003. Dr Harvey diagnosed depression and prescribed Cipramil. 43 It was the plaintiff's understanding that he was suffering depression which related to his marital difficulties. Dr Harvey's clinical notes of the consultation on 27 May 2003 are as follows: "Assessed at work and psychologist Marrioan (sic) Bloom…recommended that he come and see me. Separating. Anhedonia early morning wakening difficulty getting out of bed, suicidal ideation feeling miserable. Not feeling guilty nor loss of libido. Anxious at work. Diagnosis: Depression" 44 When cross-examined on the doctor's notes of "suicidal ideation", the plaintiff was adamant that he would not have told Dr Harvey that this had to do "with the marriage because that never happened." When referred by Mr Menzies to being "anxious at work" he agreed that the fair inference to be drawn was that he told the doctor he had very serious issues which were making him anxious and arose out of his relationship problems. 45 The plaintiff did not put in a "Hurt on Duty" claim as he considered the time off related to marital difficulties. He did not see the police medical officer prior to returning to work (ex A pars 1550-1552). Upon returning to work on 4 June 2003 he resumed normal duties. 46 During cross-examination, the plaintiff agreed that "things settled down on the domestic front…life was back stable again…and [he] found that [his] depression went away" (T 154 L 25-42). He told Dr Harvey on 3 June 2003 that he was feeling and sleeping better. The doctor's clinical notes of the consultation, inter alia, disclose (ex B v 4 p 7): "Mood is 6/10 Diagnosis: Depression getting better." 47 At the time he was taking Cipramil which had been prescribed at "20mg 1 nocte". 48 The plaintiff consulted Dr Harvey on 17 June 2003. He informed the doctor that he was "sleeping well enjoying life more, more productive at work" and felt "good about himself" (ex B v 4 p 7). He agreed that he had not suggested to Dr Harvey that there was anything going on concerning mental health issues unrelated to his unhappiness with his wife. On this topic, he gave the following evidence (T 156 L 23-41): "Q. Because the situation was there weren't any, isn't that right? A. Well, at that stage I was having nightmares and such. But I hadn't spoke to them, Dr Harvey about them, though, no. Q. When you say nightmares and such, what was such? A. Well, nightmares and flashbacks of jobs that I have been to previously. Q. When you say flashbacks, you mean having memories or recollections unbidden come into your mind? A. That's correct, yes. Q. And do you say at this time that was at a higher rate or higher incidence than you had noticed in the past, is that right? A. It was a lot higher than it had been in the nineties, yes. It was starting to get more frequent. Q. And so do you say that in June of 03, it was starting to get more frequent, is that what you are saying? A. In that time frame, yes. In 2003, 2004, yes." 49 Dr Harvey's diagnosis was "depression better" but the 20mg dosage of Cipramil was changed "from 1 nocte to 1&1½ nocte". Dr Harvey noted that his patient "feels about 9/10." 50 Dr Harvey's records reveal that the plaintiff consulted him on 29 October 2003. Dr Harvey noted that the plaintiff's "depression [was] going OK" and his 20mg dosage of Cipramil was reduced from "1&1½ nocte to 1 nocte." 51 The plaintiff related that "things were starting to get to [him]." He was experiencing nightmares and was unable to return to sleep after waking. He noticed that he was taking shortcuts at crime scenes and had become very anxious. He made particular reference to the impact that attending the scene of the suicide of a 16 or 17 year-old girl at Chevalier College at Bowral in November 2003 had upon him. The deceased reminded him of his daughter who was in Year 12 at the time. 52 He recounted attending in November 2003 the scene of an accident where an elderly lady, a pedestrian, had been run over by a truck. The plaintiff said (T 47 L 4-12): "The old lady was almost like cut in half from the collision but I had attended a job many years before where a good friend of mine's mother had been killed in almost identical circumstances. She had been riding a push bike along and a truck had done a left hand turn in front of her and run over her. Again she had almost been severed in half by the truck and it just brought back a flood of memories from that previous job, from Chopper's mum and it was just quite hard to take. I had to leave the scene and I went and sat in the car for a while. I was crying and it took a while to compose myself and I come back and finished but it was very traumatic." 53 The plaintiff said that he continues "from time to time to remember this incident and be upset by it." 54 The plaintiff went "off work sick" from 25 May 2004 until 13 September 2004. He stated that "with the benefit of hindsight [he] realise[d] that [he] was becoming increasingly unwell, and did not keep [his] duty books adequately". He consulted Dr Harvey on 27 May 2004 who told him he was suffering from PTSD. Although he had previously heard of PTSD, he stated that he did not fully understand what the term meant. In particular, he expected he would be treated, would recover and continue with his work as a crime scene officer (ex A pars 1683-1684). 55 He completed an accident/incident notification form on the same day as he consulted Dr Harvey stating that he had suffered multiple traumatic incidents as a crime scene investigator. Detective Sergeant Hodder completed a claim for "Hurt on Duty" benefits on 4 June 2004 which recorded that the plaintiff had suffered PTSD as a result of exposure to multiple traumatic incidents as a crime scene investigator. 56 Dr Harvey's clinical notes of the visit on 27 May 2004 disclose, inter alia, the following (ex B v 4 p 8): "Has been having trouble at work, worrying about things from work from years ago. Has not been able to sleep. Friends have been killed in a car accident. 10 years ago went to a friend's accident after she had been runn (sic) over by a truck. Has been having flash backs. Has been recalling a body in a bath where he could smell the scene. No dramas at work at the moment. Has had poor concentration at work. Has been having mental black outs." Dr Harvey diagnosed PTSD and prescribed Cipramil and Diazepam. 57 Between the consultations on 17 June 2003 and 27 May 2004, the plaintiff consulted Dr Harvey on four occasions concerning matters other than the diagnosis of depression. The clinical notes of 29 October 2003, however, record that "Depression [was] going OK" and the dosage of Cipramil was reduced to "1 nocte" (ex B v 4 p 7). 58 Following the diagnosis of PTSD, Dr Harvey's clinical notes record three visits by the plaintiff in June, two visits in July and three in September 2004. The plaintiff also saw Dr Dana Smith, a doctor in the same medical practice on 30 August 2004. The clinical notes of the consultation with Dr Harvey on 8 September 2004 include the following (ex B v 4 p 9): "Feels the best he has for the last 18 months. Wants to go back to work. Had been getting dizy (sic) spells so went back to 2 Cipramils a day… Sleeping well. Feeling…happy. Has not had any flash backs since 30th /7th 2004. Has not seen the psychologist for 3 weeks. Has discussed going back to work with boss and he can go back on reduced duties, with no on call work." The dosage of Cipramil was reduced from "2 & ½ nocte to 2 nocte." 59 Ms Bloom had seen the plaintiff on 28 May 2004 and 7 July 2004. The plaintiff agreed in cross-examination that during the consultation in May he had, inter alia, related to the psychologist that he had not been good lately, had not been sleeping and was not "travelling well at work". He told her that he "had been feeling lousy for 12 months, trying to make it look as if [he was] allright (sic)". 60 When cross-examined on this subject, the plaintiff gave the following evidence (T 192 L 46-50; T 193 L 1-24): "Q. Please listen to me. (a) you knew there was something wrong, right? You agree with that? A. Yes. Q. (b) you knew that if your employer knew that there was something wrong to the extent that there was, the probabilities are you would be stopped from doing your job; those two consequences are inevitable, aren't they? A. That's true, yes, sir. Q. Perhaps I am expressing myself badly and appearing to be critical when I am not. That in the light of that knowledge you then tried to, as you told Marion Bloom, tried to make it look as if you were all right, is that right? A. I did I tried to soldier on to get through the work, that's correct. Q. Stay with my question. In light of the fact that you knew that there was something wrong with you? A. Yes. Q. You knew that if the boss knew there was something wrong with you you would be unable to continue doing your work? A. Yes. Q. And you knew that that would have consequences to not only yourself but to your colleagues? A. That's right." 61 The plaintiff informed Ms Bloom that he had stopped taking Cipramil in December 2003 and had resumed taking the medication the day before the consultation. 62 When the plaintiff next consulted Ms Bloom in July 2004, he told her, inter alia, that he had been to the doctor and that he had been really good. Ms Bloom was also informed that he was sleeping okay on medication but "not solid… having a few dreams and nightmares but [was] much better", but so far as his memory was concerned he was losing it halfway through a sentence and was forgetting things (ex B v 4 p 37). 63 By an email in July 2004, the plaintiff informed Superintendent Sweeney that he was travelling okay but had some good days and bad days. He went on to state (ex 9): "The good thing is that my Doctor and the Psychologist from EAP have put some structure and some strategies in place that are helping me enourmously [sic]. … I will definetley [sic] be back at work. I still love the work, I just think that my bucket got a bit to [sic] full." 64 Having been certified by Dr Harvey on 8 September 2004 as being fit for reduced duties, the plaintiff returned to work on reduced hours. He was initially not allowed to attend at crime scenes. After a short period, he resumed normal work hours and attended crime scenes but not by himself. Whilst in the office, he was preparing crime scene documentation and examining exhibits, which constantly reminded him of crime scenes that he had attended. After being back for a few weeks, he resumed normal operational duties. Superintendent Sweeney was, however, concerned about the plaintiff's recovery. In an email dated 28 October 2004 to Senior Sergeant Jennifer Lette, a police psychologist, he informed her that he was not sure how the plaintiff was travelling as "when he went off it was clear that he was suffering also." Although the plaintiff "provides enough information to [his] own GP to get a clearance," he suspected "that the GP has know [sic] real understanding of the job as a crime scene investigator or much about law enforcement stressors" (ex B v 5 p 21). Superintendent Sweeney referred him to Dr Li, the police medical officer, who examined him on 23 November 2004. 65 Between the time he had resumed normal duties and was examined by Dr Li, the plaintiff described himself as "struggling with [his] work…and avoiding attendance at work" (ex A par 1725). On one occasion before going to work, he had thrown up and on another he did not want to get out of bed because he was reluctant about what he might face that day at work. He had days off when he was not coping. At the time the plaintiff was relieving as Zone Commander which required him to oversee the operation of crime scene units within the southern region. The position's responsibilities included being on call twenty-four hours a day, advising on major jobs and checking crime scene investigation material. The position, the plaintiff stated, involved "constant exposure of details of crime scenes" (ex A par 1746). He had been out to a couple of crime scenes including the suicide of a 16-year-old girl on 8 November 2004. 66 Superintendent Sweeney had explained to him why he was being referred to Dr Li. He was to be reviewed to see if he was able to continue his duties within the crime scene unit. The plaintiff said that he was extremely anxious about the referral as he loved his job and did not wish to go anywhere. At the time he was taking some form of medication but could not recall whether it was either Cipramil or Aurorix. 67 Senior Sergeant Lette, in an email to a Tania Rogers on 1 November 2004, stated that she had read the plaintiff's referral and considered that he was "clearly unwell" and suffering from PTSD. She considered given "the degree of [the plaintiff's] illness and the type of work he performs" that a psychiatric assessment [was] advisable (ex B v 5 p 22). The evidence does not disclose who Ms Rogers was or what role she had. 68 Dr Harvey's clinical notes, relevantly, record visits by the plaintiff on 24 September 2004 and 28 October 2004. The notes of the latter consultation include (ex B v 4 p 10): "Yesterday morning told by commander that he and Stephen Hodder had to see the police medical officer to see if they are fit to continue in their jobs. Barry was shocked and distressed and was unable to sleep." 69 Dr Harvey noted during the consultation on 24 September 2004 that the plaintiff had not reported flashbacks and had "not been involved in any jobs that may provoke flashbacks." 70 On 23 November 2004 Dr Li certified the plaintiff as being fit for full operational duties which he states the plaintiff was "pretty happy about". Dr Li's statement is exhibit 32. During cross-examination the plaintiff substantially confirmed the history that appears in the doctor's statement. In particular, he informed Dr Li that he had returned to work at the end of September or October 2004 and had a work plan. From October he was on call. On 14 October 2004 he saw Dr Harvey and obtained a medical certificate for full operational duties. As to the plaintiff's current symptoms, Dr Li records that the plaintiff's "sleeping was improving, he was thinking of previous jobs and had memory of pictures. He could control these symptoms and was doing positive thinking, his agitation was indifferent and his emotional status was okay" (ex 32 par 34). 71 The plaintiff told Dr Li that after his return to work on full operational duties there were no problems. He was "in FSG and he was better handling his problems through coping strategies" (ex 32 par 36). He had continued on Cipramil and saw his counsellor and general practitioner as needed. He informed Dr Li that he was thinking about going for a Senior Sergeant or Inspector's role in FSG in Sydney, that he was not seeing a psychiatrist and consumed alcohol occasionally. 72 Dr Li's view was that there had been improvement in the plaintiff's psychiatric condition "but as he had been diagnosed with PTSD [he] put "?? PTSD" (ex 32 p 44). Dr Li states at pars 45-47: "I have then written down the plan which consisted of: (a) continue on full operational duties; (b) me to discuss his condition with his GP; (c) I advised him about seeing a psychiatrist. I also had Sgt Doherty complete a DASS 21 at the time of the examination… The DASS 21 is a screening test. It was the practice of the PMO officer to ask officers to fill these in. Looking at Sgt Doherty's test on that day, the majority of questions he gave a zero score, meaning that most of the statements referred to did not apply to him at all for the last week. On three of the questions he had scored a "1" which indicates that the statements applied to him to some degree within the last week. Overall, the test indicated he had no significant or minimal problems." 73 Dr Li rang Dr Harvey on 26 November 2004 who informed him that the plaintiff's symptoms were better and his condition was stable. Dr Harvey was happy for him to stay in the FSG and would consider a referral to a psychiatrist if it became necessary. Dr Li recorded that "Dr Harvey had no problems with FSG" (ex 32 pars 48-51). 74 In a report dated 29 November 2004 to Acting Commander Sweeney, Dr Li reported that the plaintiff: "indicated that he currently did not suffer with any significant psychological symptoms. He believed he could remain onto (sic) his full operational duties at FSG. Despite there was risk of exposing (sic) to crime scenes' materials, the plaintiff believed he could cope with them without any impact on his psychological condition. After he had returned to full operational duties in 10-2004, Sergeant Doherty did not have any problem with his duties or symptoms. There was no significant psychological finding during the assessment." Dr Li further reported that the plaintiff "is suffering with a psychological condition. It needs treatment and it is currently stable…Sergeant Doherty can remain onto [sic] his current duties… Sergeant Doherty needs to see his treating medical doctor(s) regularly, say about once a month, for his psychological condition and his full operational duties at FSG" (ex 32 annex D). 75 Following the appointment with Dr Li, the plaintiff continued performing full operational duties as relieving Zone Commander. The plaintiff testified that looking back, he realised that he did not fully understand the nature of the illness from which he was suffering, nor its likely future effects. It was difficult, he said, to replace experienced crime scene officers and he was one of the most experienced in the section. He was relieving in Detective Sergeant Hodder's position and felt a sense of responsibility to him so that Sergeant Hodder could take whatever time off he needed. It became obvious to him that he was not "travelling the best again". On this topic, he gave the following evidence (T 39 L 41-50): "Q. When you say not travelling the best, how were you feeling? A. It was getting back to the stage as I was previously where I was starting to take shortcuts at scenes and just, I wasn't - I wasn't doing my work properly. I was started to hoard briefs and take them home, so I wouldn't have to complete them and hoarding photos so I wouldn't have to go through the photos and file them. I was hiding those at work and hiding them at home. Q. Were you spewing before you went to work? A. Yes, I was." 76 The scenes that he attended included the death of a female who had fallen three storeys to her death. 77 In February 2005, the plaintiff attended a three-zone conference in Jindabyne during which a group psychometric test was carried out. He recalled police officers discussing the questions during the test and expressing concern as to the need to get to Thredbo to have sufficient time to play a full nine holes of golf. 78 The plaintiff testified that he attended a murder-suicide at Oak Flats on Anzac Day in 2005. At the time he was on leave but had been called out as the police constable on call was not qualified to attend by himself. A father had shot and killed his five-year-old son and then had turned the rifle on himself. The plaintiff had completed much of the examination and "everything was going quite well until we got into the room where the young boy was". He said (T 44 L41-50): "When we got in there I started to feel a bit nauseas. I think it is the first time that I have had to actually leave a scene like halfway through like. I went back out to the vehicle and I just told Adam that I wasn't able to complete my assistance in that room with him. I went out and done some other stuff but I just wasn't able to be in the room while they were doing the examination of the young boy. Q. Why not? A. I couldn't cope. I thought I was going to be ill. I just had to get out of the room." 79 A few weeks later, the plaintiff went to the scene of an apparent suicide of a young man in bushland near Berry. When he returned to where the corpse lay for a second time, he discovered that its face been eaten by an animal. He said that he had quickly taken some photographs, made a sketch plan and left the scene as he could not cope. Whilst at the scene, he had discovered from relatives of the deceased that the deceased was the nephew of a computer technician at the Wollongong police station whom he had known for some years. 80 After leaving by car, he pulled off the road to write up his notes. He then vomited, felt unwell and distressed for some twenty to thirty minutes at the side of the road. He finished work that night at 11pm but was recalled at 4am on the following day to attend a serious motor vehicle accident. 81 On 17 May 2005 the plaintiff ceased work and since that time has not returned to work as a crime scene officer. 82 The plaintiff recounted that he had been experiencing intrusive recollections of crime scenes, nightmares and insomnia, apprehension, anxiety and nausea, difficulties with concentration and memory, irritability and disinterest in everyday activities. He had, however, hoped to return to work. He realised, with the benefit of hindsight, that he did not fully understand the significant cause of PTSD (ex A pars 1851-1868). 83 Dr Harvey's clinical notes record that the plaintiff consulted him concerning PTSD on 17 and 24 May 2005. The entry for 17 May 2005 includes the following (ex B v 4 p 11): "Boss Steve said that he needed to come back. He has been told that his work is not up to the same standard. Was not coping with work. Difficulty with a recent murder suicide with a 4 yr old son and a young man who hanged himself. Stopped taking the Cipramil in January when he [was] on holidays. Started them again about 3 weeks ago. Gets anxious in the morning and vomits before he goes to work." The dosage of Cipramil was increased from "2 nocte to 2 ½ nocte". 84 Dr Harvey prescribed Temazepam "1 nocte p.r.n" during the consultation on 24 May 2005. The dosage of Cipramil was increased to "3 nocte" on 2 June 2005. 85 During a consultation with Ms Bloom on 3 May 2005, the plaintiff explained that he was not as comfortable doing calls and that he had had an anxiety about calls for about "18 months [and] probably back longer than that" (ex B v 4 p 49). The plaintiff said that his anxiety really got bad in the beginning of 2004. 86 Dr Li examined the plaintiff on 28 June 2005 and told him that he was not fit for any duties which exposed him to crime scene materials. Dr Li records in his statement "that [the plaintiff's] symptoms were that before the two incidents (call backs to work) he had been okay. Those call backs were in April and May 2005": (ex 32 par 62). The plaintiff gave evidence that these "call backs" were the murder/suicide at Oak Flats on Anzac Day and the suicide near Berry. He said that before that time he was having nightmares but it was not until after the two call backs, especially the one on Anzac Day that he realised he was unable to perform his duties: (T 185 L 45-50). He did not agree that he had told Dr Li that he stopped taking Cipramil in November 2004. He agreed that he told Dr Li that he had found the increased dosage of medication helpful, his symptoms with medication were getting better and he was now about 50 per cent recovered. The plaintiff had also indicated to Dr Li that "in November 2004 to March 2005, he was 75-80 per cent recovered" (ex 32 par 65). 87 Dr Li asked the plaintiff to complete a DASS 21. Dr Li stated that the plaintiff's responses revealed that he was much more symptomatic. He had "recorded one "3" and several one's and two's": (ex 32 par 68). On the same day, the plaintiff was assessed by Renata Cimino, a police psychologist. In an email to Dr Li dated 1 July 2005, Ms Cimino opined that it was plausible that the nature of the plaintiff's work may be contributing to his current symptomatology which raised concerns about his emotional wellbeing should he return to the same work environment. Ms Cimino recommended that the plaintiff undergo a psychiatric assessment for a more accurate diagnosis. 88 In November 2005, Dr Prior, a psychiatrist, examined the plaintiff at the request of the police force and diagnosed him as suffering from a "chronic mild post-traumatic stress disorder on a background of obsessive compulsive personality traits". Dr Prior attributed the cause of the PTSD to "multiple traumatic incidents experienced over the course of his career working in the forensic department of the Police Service". He did not think that there were any other factors contributing to it and found the plaintiff unfit to perform operational police duties. He recommended that the plaintiff have more aggressive treatment from a psychiatrist experienced in treating PTSD and that the plaintiff be referred for more intensive cognitive behavioural therapy for PTSD in a dedicated PTSD unit. Dr Prior was of the view that the plaintiff was not fit for rehabilitation designed to get him back to operational police duties. 89 Superintendent Sweeney had submitted an application for a medical discharge on the plaintiff's behalf without his knowledge and had discussed making the application with Leisa Doherty. The plaintiff said that he did not make the application himself as "it was making me rehash things that I didn't want to go over" (T 47 L 49-50). He said that he was so unwell that he had difficulty coming to any decision. 90 The plaintiff saw Dr Peter Anderson, a psychiatrist, on 1 June 2007 at the request of his solicitors. Dr Anderson reported that the plaintiff "has a post traumatic stress disorder and this diagnosis is made within the DSM System of classification." Dr Anderson noted that the plaintiff had been exposed to horrific incidents and scenes at which time he experienced horror and helplessness. It was his view that the plaintiff's problems were directly caused by overexposure to crime scenes in the course of his work in the police force. His work was the major contributing factor. The plaintiff was unfit for work and his medical discharge should be supported. 91 On 25 October 2007 the Police Superannuation Advisory Committee determined that the plaintiff was incapacitated for police duty due to the infirmity of "chronic mild post traumatic stress disorder". By a letter dated 2 November 2007, the Delegate for the Commissioner of Police advised the plaintiff that he had certified in terms of s 10B(3)(a) of the Police Regulation (Superannuation) Act 1906 that his infirmity was duty-related. On that basis the plaintiff was medically discharged from the police force as at 2 November 2007. It was subsequently determined, on the basis of the extent of the plaintiff's incapacity, that he was entitled to a 100 per cent pension. 92 Leisa Marie Doherty testified that during the period that her husband was off work from mid-2004 until mid-September 2004 he was not very well. She described him as being anxious, very withdrawn, depressed and not coping. When he was certified in September as being fit to return to work on restricted hours, he was vomiting before he went to work. He was anxious and it was a chore to get him to work. She said that she begged him not to go back to work. 93 Mrs Doherty gave the following evidence in cross-examination (T 233 L 33-42): "Q. In September 04, could I invite you to accept this, and I know you weren't there, but he told Dr Harvey that he felt the best he'd felt for about 18 months and he wanted to go back to work, sleeping well, feeling happy, no flashbacks. Now, that doesn't accord at all, does it, with your observation? A. And that makes me angry. Q. Because that is a completely different presentation to the one that you were seeing? A. I don't think he could actually see how sick he was. I honestly don't think he knew how sick he was." After the FSG 94 The plaintiff gave evidence that there had not been a marked improvement in his condition since he left work in 2005. Each day was different, he said, it was like a "roller coaster". Some days he struggled to get out of the house, he was very lethargic because of the medications he was on and his concentration was terrible. He did not think he was capable of holding down a job and had not done any sort of work since he left the FSG. He could not predict what he was going to be like in the next thirty minutes as something could happen which would "tip [him] over the edge." He and Leisa had been trying to get out and walk every day but most of the time he sat around the house watching television. He had put on nearly 20 kilograms since he left work. Since 2005 he had contemplated suicide a number of times which he was not proud of. The medication prescribed by Dr Durrell helped him sleep better but the tablets were really strong, 'bombed' him out and made it hard for him to function the next day. His sleeps were still fitful and there was, even with the medication, the possibility of nightmares, waking up and difficulties getting back to sleep. 95 The plaintiff said he had taken up the manager's position with a local football club but had struggled to attend training. Dr Durrell had prescribed Valium to take on training afternoons just to get him to training. He stopped being the manager at the end of the 2008 season. He did not mow the lawn very often as going near dog faeces made him throw up and brought back memories of jobs. Flies also brought back memories and he could not have them in the house nor could he be near maggots. 96 The plaintiff recounted going to Leisa's shop but half the time he got in the road. He would, he said, sit out the back and do "some menial stuff" for her. The shop had been sold about 18 months ago. He was "a shell of the person" he was 10 to 15 years ago and was happy to get by "day by day". The plaintiff said he hated the way he lived at the moment and would love to do some work in the future but did not believe that he was in a position at the moment to hold down work. He denied that he was exaggerating his level of disability. He agreed that he visited close friends and attended functions like barbecues at certain other people's places. He said that he had barbecues at his place and took part in family celebrations. He played golf maybe once every couple of months with the same three people but described himself as a "terribly bad golfer." 97 Leisa Doherty gave evidence of the plaintiff having "his good days and bad days". Without any stress, he was quite good but as soon as something happened he went "back into his hole". The plaintiff becomes very reclusive and sits really quietly in a corner. She did not leave him by himself because he had been suicidal before. She said that he did not mow the lawn as he could not pick up dog faeces which made him retch. The children mowed the front lawn and she mowed the back lawn. Mrs Doherty agreed that she had encouraged the plaintiff to play golf and said that she had bought golf clubs for herself. She thought she had played golf with him twice this year. Psychiatric and psychological evidence 98 Before commencing a summarised review of the evidence of the psychiatrists and psychologists, it is of importance to observe that they all acknowledge that the plaintiff's duties in the FSG placed him in a high-risk area for psychological injury such as depression or PTSD. It was common ground that the plaintiff has suffered significant psychological injuries. Although I have not attempted to summarise the histories provided by the plaintiff to the psychiatrists and psychologists, I have taken them into account in reaching my conclusions in this case. 99 The plaintiff's treating psychiatrist is Dr Anthony Durrell. Dr Harvey referred the plaintiff to Dr Durrell on 1 November 2007. This was the first occasion that the plaintiff had been referred to a psychiatrist for treatment. Dr Durrell's reports of 6 March 2009 and 6 November 2009 are found in ex B v 8. 100 Dr Durrell gave evidence during the hearing. He has seen the plaintiff on nearly forty occasions. 101 Dr Durrell was of the opinion that the plaintiff has "work caused psychiatric injuries in the form of Post Traumatic Stress Disorder and secondary Major Depressive Disorder (MDD)" (ex B v 8 p 22). The PTSD, he opined, results from the plaintiff's "repeated, direct and close exposure to psychologically traumatic events. These past traumatic work events in the NSW Police Service in a cumulative sense, overwhelm the memory and emotional processes resulting in brain dysfunction which manifest as symptoms and signs of mental illness". He reported that Mr Doherty's PTSD is "not mild but is more accurately rated as moderate to severe." The secondary depression, he said, is at times very severe. 102 Dr Durrell considered that the plaintiff's history in crime scene work "reveals an onset of mild PTSD in the early 1990's". The plaintiff had experienced levels of fluctuating partial remission for several years without identification or treatment of his PTSD. Dr Durrell reported that (ex B v 8 p 146): "The continued exposure to work place traumas in the setting of untreated mild PTSD resulted in progression of this psychiatric injury to more moderate levels over the ensuing years. Furthermore, the undiagnosed and untreated PTSD, in the 2-3 years preceding his medical retirement in 2005 escalated to more severe levels of magnitude." 103 During his oral evidence, Dr Durrell said, that exposing someone with mild PTSD "puts him at grave risk of acceleration of the disorder by re-exposure and this is in fact my understanding of how Mr Doherty's disorder has progressed" (T 349 L 29-31). 104 When asked by Mr Doherty if there was any way to prevent that from happening, Dr Durrell replied (T 349 L 34-39): " Certainly the earlier involvement of a psychiatrist, and as I understand it I am the first psychiatrist Mr Doherty has really had an opportunity to form a therapeutic relationship with, that would have been essential, I would have felt, for a proper management diagnosis. But removing Mr Doherty from crime scene work would have been a very sensible and I would think obvious way of reducing his risk of re-exposure." 105 Dr Durrell referred to the murder-suicide scene at Oak Flats which the plaintiff had attended on Anzac Day 2005 as the "last straw". By the time of this "last straw" traumatic workplace experience, Dr Durrell's view was that the plaintiff's "PTSD and secondary depression were already well established, for at least 2-3 years, at a chronic and entrenched level on the severe and (8-9/10) of a decimal rating scale" (ex B v 8 p 147). Dr Durrell was of the view that prior to this time treatment would have made some sort of difference as "the response to treatment gets progressively more difficult the longer this man is being re-exposed to traumas as his disorder is progressing" (T 350 L 8-9). 106 Dr Durrell recounted that the plaintiff had trialled a variety of medication over the years which included Cipramil and Aurorix. He had prescribed Zoloft, up to a higher dose, without a lot of relief. More recently Cymbalta and Seroquel had been trialled. Dr Durrell said that his treatment had been effective in containing the plaintiff's symptoms. He was "holding the line" but there would be "no cure" for his patient. 107 The plaintiff's principal witness of the genesis of the plaintiff's condition and on liability was Professor Alexander McFarlane. Professor McFarlane interviewed the plaintiff on 3 April 2008. Professor McFarlane's reports, dated 10 September 2008, 25 September 2009 and 28 September 2009, are found in ex B v 8. He gave oral evidence during the hearing. Professor McFarlane's diagnosis was that the plaintiff "using DSM-IV criteria, suffered from a post traumatic stress disorder and major depressive disorder." The DSM-IV criteria require an individual to be exposed to an event which provokes feelings of fear, helplessness and horror. Professor McFarlane's view was that during the plaintiff's career, he had been exposed "to a number of such incidents which have left him with traumatic memory structures." The most traumatic events were the Valevski, O'Hearn and Arkell murders and the identification of his cousin's body. Professor McFarlane observed that the plaintiff had developed distressing and intrusive recollections of the major traumatic events which were manifested by nightmares in the immediate aftermath and by spontaneous and distressing recollections of these crime scenes during his waking hours. The plaintiff had actively attempted to shut out his thoughts and feelings associated with these events by engaging in a range of behavioural avoidance. 108 The "Diagnostic and Statistical Manual of Mental Disorders DSM-IV 4th ed Washington DC, 1994" as published by the American Psychiatric Association was referred to by the psychiatrists as "DSM-IV". The diagnostic criteria for PTSD include (ex 12): "A. The person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. (2) the person's response involved intense fear, helplessness, or horror. B. The traumatic event is persistently re-experienced in one (or more) of the following ways: (1) recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions. (2) recurrent distressing dreams of the event. (3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). (4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. (5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event." 109 I do not propose to recite criteria C, D and F. It is of importance, however, to record that criteria E is as follows: "Duration of the disturbance (symptoms in Criteria B, C and D) is more than 1 month." 110 Both Dr Durrell and Professor McFarlane were of the opinion that the plaintiff was suffering from PTSD and a major depressive disorder which satisfied the DSM-IV criteria. 111 The major depressive disorder was, in Professor McFarlane's opinion, manifested by "pervasive disturbance with mood lasting more than two weeks." The question also arose as to whether the plaintiff had suffered from an acute stress disorder, particular following the Valevski murders. Professor McFarlane opined that "his degree of hyper arousal and sense of detachment during this time, combined with his intense nightmares may have been indicative of him being frankly symptomatic in the immediate aftermath of this event". Professor McFarlane noted, "the importance of this observation is that it highlights how his distress was not identified or systems in the workplace, which should have been put in place to identify individuals at such risk." 112 Professor McFarlane spoke of a process of "kindling" and "sensitisation" which was, he said, the mechanism by which repeated exposures led to the onset of PTSD and depression. He explained that the more traumatic events that an individual was exposed to, the greater the risk was of that person developing PTSD or depression. 113 He expressed the view that when Dr Harvey diagnosed depression and prescribed Cipramil in 2003 the plaintiff should have been withheld from crime scenes because "his exposures prior to 2003 played a very significant role in the onset of his condition and the probability of him getting a full response to treatment would potentially be disrupted by him being further exposed" (T 260 L 20-23). The critical issue for the plaintiff was attendance at crime scenes which re-activated his traumatic memories and kept those memories alive, which then drove the disordered arousal and mood disturbance that underpinned his condition. He opined that, if the plaintiff had been removed from crime scene investigation work in mid-2003 and provided with appropriate treatment, he would still be working full-time. There was a period after which the plaintiff could have been put back into crime scene investigation work, Professor McFarlane said, but "you are beholden to supervise them on a regular basis because they do have a greater probability than another individual of becoming unwell in that environment" (T 261 L 1-3). 114 A critical component of PTSD, Professor McFarlane testified, is "that people get a conditioned stress response to certain qualities or reminders or characteristics of crime scenes. And as with any form of learning, the more frequent that learning is reinforced, the stronger that link becomes and the more difficult it is to extinguish or unlearn that association" (T 261 L 32-36). 115 When the plaintiff returned to crime scene work, the risk was, Professor McFarlane said, that his learned association was further strengthened "and when it reaches a certain level, it is difficult to extinguish that learning." Professor McFarlane was of the view that the plaintiff reached that level after his period of absence from work in 2004. The declaration by Dr Li of the plaintiff being fit for full operational duties in November 2004 was, he said, inappropriate as the plaintiff had been previously sent back on one occasion to the FSG and had become unwell. According to Professor McFarlane, had the plaintiff been removed from the FSG in November 2004, his outcome would have been different and he would still have the capacity for employment, probably within the police force. Professor McFarlane expressed the opinion that by returning him to crime scene investigation work in November 2004, the degree of contribution to his PTSD and major depression was substantial. The plaintiff was now significantly disabled as a consequence of his disorder and was likely to remain in much the same state for the foreseeable future. 116 Dr Lisa Brown and Professor Christopher Tennant gave evidence in the defendant's case. Dr Brown, a psychiatrist, interviewed the plaintiff on 15 July 2008 at the request of the defendant's solicitors. Dr Brown's two reports are found in ex 10. It was Dr Brown's opinion in a report dated 21 July 2008 that the plaintiff had developed "a mild chronic post traumatic stress disorder condition, arising as a result of cumulative exposure to various workplace accident and crime scenes, as part of his employment as a police officer." Dr Brown reported (ex 10 t 1.1 p 15): "Although Mr Doherty described a number of particularly distressing incidents having become the focus of his intrusive nightmares and flashbacks, including the deaths of children and the identification of a close family friend's body, it has been considered more likely that totality of his cumulative exposure over the years of his work as a forensic investigator was the factor responsible for the development and maintenance of his Post Traumatic Stress complaints." 117 Dr Brown's view was that the plaintiff's symptom profile from around the year 2000 onwards was consistent with his having developed a PTSD type condition. Dr Brown wrote that he would meet criteria for the stressor A criterion for the DSM-IV diagnosis of PTSD, given his multiple exposures to various crime and accident scenes. She rated his PTSD "as being of mild severity." Dr Brown opined that the plaintiff had undergone appropriate treatment and a partial remission of symptoms had occurred. He was likely to undergo gradual but significant further improvements over several years. 118 During her oral testimony, Dr Brown said that when she assessed the plaintiff in July 2008 she had limited documentation that provided contemporaneous records of the timing of the onset of his symptoms. Having subsequently reviewed other records, she was now of the opinion that, rather than having developed PTSD during 2000-2003, the plaintiff developed a depressive disorder around 2003. He had developed PTSD, possibly around May 2004, at which time the medical and psychological counselling records first indicated that he complained of flashbacks. 119 Dr Brown said that she no longer was of the view that the plaintiff developed PTSD "based on an accumulative effect of many different incidents arising during his police service career" (T 379 L 49-50). She now considered that there were likely to have been several incidents which were more important in the causation of his disorder rather than the totality of his police work experience. 120 Dr Brown expressed the opinion that exposure to traumatic scenes does not necessarily give rise to the type of emotional hyper-arousal that is an early sign of the development of post-traumatic stress. Individuals who work in the police force may be exposed to multiple traumatic work exposures and not develop acute symptoms at the time. They may feel distressed by an incident, she said, but those incidents of themselves, if they are not reacted to with shock, fear, helplessness or horror at the time, do not form the basis for the subsequent development of PTSD. On the issue of kindling and sensitisation, Dr Brown gave evidence that when an individual develops PTSD, subsequent exposures to trauma may set off a process in which the individual's symptoms start to build on each other. It was like "setting fire to a pile of logs." 121 The plaintiff, Dr Brown considered, suffered from PTSD of a chronic subtype with co-morbid major depression. She opined that the three trials of anti-depressant medication undertaken by Dr Durrell over two years was not a sufficiently aggressive treatment to assume that the plaintiff has no opportunity for further symptom remission, both from depressive and post-traumatic symptoms. She did not believe that the plaintiff's prognosis was as grim as the psychiatric evidence in the case had suggested. She considered that more aggressive treatment of the plaintiff's continuing depression was likely to achieve a much better long-term outcome. 122 Dr Brown gave evidence that when the plaintiff returned to work in June 2003 there was no evidence in Dr Harvey's notes that he was suffering from symptoms of depression at the time. It was Dr Brown's view that it was "okay" for the plaintiff to be sent back to crime scene work because he had a full remission of symptoms with treatment. Although the plaintiff was taking medication, he was not symptomatic in any fashion. Dr Brown said that the plaintiff was in remission with the use of medication. In answer to my questions on this topic, Dr Brown gave the following evidence (T 394 L 11-50, T 395 L 1-14): "Q. Would you not at that time when he was what might be called in remission exercise considerable caution about his returning to his high risk occupation; in other words, he could have gone back to being a police officer behind a desk in general duties rather than being called out to horrific crime scenes? A. If he had made only a partial remission of symptoms, yes, I would be very cautious. I think I am influenced in this particular situation by him seeming at the time to have a fairly complete remission of symptoms. Q. You used the words "fairly complete" and I go back to my inquiry, and I am grateful for your assistance in this regard, that he is still on medication? A. Yes, and as it turned out, when Mr Doherty stopped medication, apparently in December 2003, he relapsed several months after that, and it does suggest that the medication was working to keep him well. So even though he seemed to have made a full recovery, he probably was needing the medication. Q. Wouldn't that indicate, exercising reasonable care and prudence, that one would be very cautious about him going back to the high stress occupation whilst his recovery was underpinned by the medication? A. I can only say that in a clinical situation it is something that you discuss with the person, and I don't know in how much detail that was explored by Dr Harvey or subsequently Dr Li, but in my personal clinical practice, I talk to the person about the type of duties, what they might be worried about encountering, but I still think in this particular situation I would have been happy for him to go back to work and to monitor his progress. If he started to deteriorate, yes, I would pull him out very quickly. Q. When you say "go back to work", could you be precise about the nature of the duties that you would be happy for him to go back to? A. With the benefit of hindsight, it is easy to say, well, that wasn't a good idea; and probably it wasn't in hindsight. At the time being, the type of person he is, I think Mr Doherty probably would have wanted to rise to the challenge. He would have encouraged his doctors to think that he was okay. In retrospect, I think that probably wasn't true, so now looking back, knowing all that we do, I would agree with you that perhaps he shouldn't have gone back to high risk work. Q. Without the benefit of hindsight, what would your opinion have been on the information that you have? A. At the time I would probably have trialled him back at work but, as a psychiatrist, if I was treating him I would have kept a very close eye on him because of the concern that he might relapse. Q. Again, asking you to be precise, what type of work would you have been happy for him to go back to subject to close supervision? A. Obviously, he could go back to office based work, but if we are talking about the situation of him going out to confront gruesome work scenes, then that particular area would possibly be a concern. He may not have had post traumatic stress disorder at the time, but depression can make you more vulnerable to the effects of the exposure to gruesome scenes. So that may have been something he could have gone back to restricted duties, office based supervision and waited at least perhaps a further several months before he actually went back and trialled himself out on the more gruesome aspects of his work attendance." 123 Dr Brown acknowledged that the work the plaintiff was doing was high risk for psychological injury such as depression or PTSD. She agreed that the risk of developing major depression or PTSD increased with repeated exposure to crime scenes. She considered that given the plaintiff's line of work, he would have been better served seeing a psychiatrist earlier in the course of his illness. This would not have been the case in 2003 when the plaintiff seemed to make a fairly complete recovery but she thought "in mid-2004 when he had a relapse of symptoms that would have been the appropriate time for him to be assessed by a treating psychiatrist" (T 397 L 36-39). 124 When referred to Senior Sergeant Lette's email of 1 November 2004, (see [67] above) Dr Brown said that she hoped that information of that type would be given to the police medical officer and that it would be a mistake if it was not. She was of the view that the plaintiff was possibly treatable if he had been removed from crime scene work in the middle of 2003. 125 It was Dr Brown's opinion that the plaintiff's return to full operational duties in October/November 2004 and the murder-suicide he investigated on Anzac Day 2009 acutely precipitated his PTSD symptoms at the time but its long-term effect was debatable. 126 On the topic of the plaintiff's management, the testimony which follows was given by Dr Brown in cross-examination (T 402 L 20-50, T 403 L 1-9): "Q. Is it your view, doctor, that nothing could have prevented this man from becoming how he is today? A. No, that is not my opinion. Q. How could, in your opinion, it have been prevented? A. I don't know that anything differently could have been done with the May 2003 episode. Mr Doherty received the two major tenets of treatment for his depressive condition including medication and counselling and he made a, he achieved a remission of symptoms. Similarly, in 2004 he appears to have made a good recovery with attention to returning him to medication and on-going review. Had he been returned to work from mid 2005 onwards I would be very critical of an action at that time. But it is simplistic to say that we can prevent psychiatric disorders from relapsing. As I mentioned earlier we don't know why people develop depression during mid adult years, we don't always know why it relapses and who will become chronic in their condition. We treat the symptoms obviously as effectively as we can but it is not always about exposure to life events or life stressors. Some people simply have a worse course of outcome and it is unrelated to what is occurring around them in their lives. What we can do is treat them effectively when they are symptomatic. Q. What would you have done to prevent it? A. I would have monitored him very carefully after that May 2003 episode as a clinical psychiatrist reviewing him regularly during that time. Q. How regularly? A. Probably once a month maximum, maybe once a fortnight. Q. What else? A. I'm not sure that there is a lot else that could be done because he was receiving both psychological counselling and medication treatment at that stage. Q. And to monitor him very closely between May 03 and May 04, is it your view that that monitoring would have probably picked up the early signs of an approaching PTSD? A. It could have except in this particular situation the monitoring that was provided by Dr Harvey does not seem to indicate that in fact Mr Doherty did relapse up until May 2004." 127 In re-examination Dr Brown said (T 407 L 12-27): "A. I think that that combination of monitoring including people who knew Mr Doherty such as a general practitioner, a psychologist he had previously seen and a supervisor who was au fait with psychological problems, was probably sufficient between May 2003 and up until at least May 2004. Following Mr Doherty going off work in mid to late 2004 I think it would have been prudent at that stage of events to have involved a psychiatrist. Q. And prudent expressed from what perspective? That of a psychiatrist, I assume? A. Yes. Q. From that time, May 2004, was the continuing monitoring by the general practitioner, with that general practitioner being in contact from time to time with the psychologist, was that reasonable? A. Yes, that was reasonable." 128 It is convenient to note here, Dr Brown reported, that whether police officers who are exposed to traumatic events ought to be psychologically interviewed on a regular basis is an issue which is still under debate. It was her view that rather than psychological interviews being "routine", they are probably best used in particular circumstances such as the identification of an "obviously abnormal" result in a psychometric test. Dr Brown observed that "dependence on questionnaires alone as an indicator of an individual's clinical state is unreliable." 129 Professor Tennant did not interview the plaintiff but provided a report on issues concerning liability and commented on Professor McFarlane's evidence. Professor Tennant's report is found in ex 12. He gave oral evidence in the proceedings. I propose to review in a summarised way some of the areas of disagreement between these experts: (i) Professor McFarlane was critical of Dr Li's report to Commander Sweeney dated 29 November 2004 to which I have referred at [74] above. In his view, the assessment of the plaintiff's risk of developing symptoms was not a matter for the plaintiff to decide. It was critical that the PMO who was aware of the exposures to which the plaintiff would be subjected made this assessment. Furthermore, a general practitioner alone should not have assessed the plaintiff's functioning and the appropriateness of the duties he was performing. Professor McFarlane considered that an occupational physician within the police force who was "fully aware of his responsibilities and exposures should have contributed" to the assessment (ex B v 8 p 36). Professor Tennant, however, was of the view that Dr Harvey and Dr Li fully and adequately assessed the plaintiff in relation to his work duties in September-November 2004. Diagnosis by his general practitioner as having PTSD did not indicate an absolute necessity that the patient did not work with forensic services. The vast majority of cases of PTSD, Professor Tennant stated, resolved either spontaneously or with appropriate treatment. Once the plaintiff had developed PTSD, then more assertive monitoring by the general practitioner, by the plaintiff and the police force was indicated. Professor Tennant opined that given Dr Harvey was the clinician to diagnose PTSD, and no doubt assumed it might be related to work duties, it was his responsibility to be more assertive in ongoing monitoring. It appeared that there was a dialogue between Dr Li and Dr Harvey and they were both in agreement about the course of action to be taken. The issue of the plaintiff's return to work, Professor Tennant considered, was primarily the responsibility of the general practitioner as he was most familiar with the plaintiff's mental state given that he had diagnosed and treated it. If the general practitioner had any doubt then he would refer for a second opinion. Professor Tennant's view was that any agency within the police force would assume this to be the case. He reported that some 90 per cent of psychiatric disorders in the community are treated by general practitioners alone which Professor Tennant considered to be "a quite appropriate system of care" (ex 10 t 2.1 p 7). He was of the view that the actions taken by Dr Harvey and Dr Li were appropriate. (ii) Professor Tennant was of the opinion that any aggravation to the plaintiff's underlying disorder arising from his return to work in October 2004 would have occurred up until the time that he commenced appropriate treatment sometime after May 2005. Professor Tennant considered that "there is no evidence that duration of pre-existing disorder influences the post treatment outcome, namely entrenchment." The course of the plaintiff's condition once effective treatment had commenced had not been altered, he said, by earlier events or duration of symptoms. He testified that there was no evidence that once treatment is implemented the exposure to previously recurring events affects the ability to respond to treatment. Once treatment begins, he said, you are either a treatment responder or not. There was no difference in terms of outcome after treatment whether the disorder was treated early or late. Professor McFarlane, on the other hand, did not agree that a delay in the plaintiff's treatment had a deleterious effect upon his symptoms only up to the time treatment resumed. In cross-examination, he said (T 336 L 48-50, T 337 L 1-4): "…the issues of the underlying mechanisms of this condition, it reinforced the association between his symptoms and the memories and the environment that triggered those symptoms. I mean, it's a basic principle of learning, the longer you practice the piano the better you get at it. You know, the longer you are exposed to this workplace, the more entrenched your symptoms become and the link between your symptoms and those memories is strengthened." Professor McFarlane was of the opinion that the plaintiff's repeated decompensation had led to his condition becoming more chronic and the treatment unresponsive. In particular, in PTSD "the underlying neurobiological abnormalities are not simply responsive to immediate events but rather involve a progressive shift in the neural networks that are used in processing environmental stimuli and that as the disorder becomes entrenched, these changes become progressively inflexible" (ex B v 8 p 43). (iii) Both witnesses considered that the plaintiff ought to have been regularly assessed by way of psychometric testing. Professor Tennant stated that annual screening would seem reasonable but the subject's self-awareness of his stress was "equally if not more important and should occur in combination with availability of confidential agencies that such individuals can refer themselves to for advice and treatment" (ex 10 t 2.1 p 6). Professor McFarlane was of the opinion that a psychometric assessment by itself was not an adequate screen. He stated (ex B v 8 p 63): "With any screening program a brief low cost assessment is made that covers large numbers. These initial tests then need to have a second order process using a gold standard method of assessment to further investigate individuals who screen positive or have a border-line psychometric assessment. In a psychiatric setting, this involves a structured clinical diagnostic interview. This is a particularly important step in a setting such as the NSW Police Service where there is a propensity for officers to under-represent their distress. Such an approach allows an experienced assessor to probe the positive items reported by the respondent. This approach is used in the Australian Defence Force for all individuals returning from deployment, indicating its practicability." The way to deal with persons who under-reported, Professor McFarlane said, was to have a lower cut-off score for predicting those who were to be clinically interviewed. He said that the entire defence force on return from overseas deployment fill in questionnaires and are also interviewed. On the topic of regular psychological interviews, Professor Tennant was of the view that such interviews should take place when there was evidence of some ongoing psychological distress above and beyond that of normal stress responses. This evidence, he said, should be identified by regular psychometric assessments and by an officer's own self-report. (iv) Professor McFarlane gave evidence that in relation to the concept of kindling, the event did not have to first satisfy Criteria A DSM-IV in order to have a kindling effect. Professor Tennant did not agree. He said (T 414 L 34-44): "So an episode of illness does induce, and we have talked about this, I think, the kindling. The stressor itself, if it is not accompanied by significant symptoms, does not induce kindling. You actually have to have significant symptoms which in turn bring about changes in the brain which make you more vulnerable the next time around. That's the evidence from depression and from other areas. Now, I know Professor McFarlane has specifically commented on a statement I made in this article that life event stress can contribute to kindling. That is true. But only if it causes an episode of depression. If it does not cause an episode of significant symptoms, there is no evidence that kindling will occur." (v) Professor McFarlane referred to the requirement in the Australian Defence Force whereby "you have to be symptom free and no longer in treatment for six months before you can return to exposures that place you at significant risk again" (T 307 L 13-14). Professor Tennant said this (T 433 L 4-14): "Q. Doctor, is it your view that people in high risk jobs like Mr Doherty should not be further exposed to traumatic crime scenes while they are on anti-depressants? A. No, not at all. Q. I see. They are okay to go back to that? A. If they are symptom-free, if they are well, if they are being reasonably monitored by appropriate people, which would include the general practitioner, would include the psychologist, might include the police medical officer if there was significant time off duty, et cetera, et cetera. It would be reasonable if he was - had responded to his anti-depressants that he might return to work." Notwithstanding the areas of disagreement between Professor Tennant and Professor McFarlane, Professor Tennant accepted that the plaintiff has PTSD with co-morbid major depression. 130 The defendant made extensive submissions as to why the opinions of Professor Tennant should be preferred to those of Professor McFarlane. A number of research papers were tendered which were said to support the views expressed by Professor Tennant. 131 The sole dissentient on the diagnosis of PTSD was Dr Wendy Roberts. Dr Roberts, a psychologist, examined the plaintiff on 23 March 2009 at the request of the defendant's solicitors. Dr Roberts's reports dated 14 April 2009 and 6 June 2009 are found in ex 10. A further report of 2 December 2009 is ex 24. Dr Roberts was not required for cross-examination. 132 The plaintiff had completed during the interview a Beck Depression Inventory, Form II and an MMPI-2. Dr Roberts reported that the plaintiff "has probably met criteria for depression at times and some anxiety, but the problem with diagnosis of PTSD is that he has had so much exposure to its features and because of the evidence of embellishment of psychopathology he showed on this occasion, I do not think it can be argued that he has genuinely ever met these criteria". The Fake Bad Scale was so highly elevated as to indicate, Dr Roberts stated, "a 99 per cent to 100 per cent probability of inflated complaints of emotional and somatic symptomatology". She reported that "it does not rule out the possibility of genuine psychopathology, but his approach to testing was so exaggerated that accurate assessment of any emotional problems could not be made." 133 Although Dr Roberts's psychological assessment is unfavourable to the plaintiff, all of the psychiatric evidence points to a diagnosis of PTSD. There is mutual agreement on a diagnosis of PTSD and co-morbid depression. The police force accepted that the plaintiff was incapacitated for duty because of PTSD, and for that reason, he had been medically discharged. I am satisfied on the balance of probabilities that the plaintiff suffers from PTSD with chronic and severe symptoms and a major depressive disorder. The opinions of the psychologists Jill Farrelly and Neville Taylor are referred to at later stages in this judgment. The plaintiff's credit 134 The defendant was critical of the plaintiff's credit. One of the matters the defendant pointed to was the reporting by Dr Prior of the plaintiff's denial of significant stress associated with his separation from his first wife. This passage which appears in Dr Prior's report was not brought to the plaintiff's attention in cross-examination. As a matter of fairness it should have been if it was to be used to found an attack upon his credibility. In any event, the plaintiff accepted in cross-examination that his relationship with his first wife was deeply unhappy but said that the separation was not a problem as he had been planning it for some time. He then formed a relationship with Leisa Atherton with whom he was happy. The issues which then emerged with his first wife were more, he said, annoying rather than distressing. He accepted that he was depressed at the time. 135 Another matter that the defendant pointed to was the apparent inconsistency between what appears in the history taken by Professor McFarlane when he interviewed the plaintiff on 3 April 2008 that he "is no longer binge drinking" and Leisa Doherty's evidence that he still drinks to excess "on the odd occasion" which could, she said, be sometimes once a month or "a couple of times over a week". Any assessment of the impact that this disparity might have upon the plaintiff's credit is, to my mind, problematic as the plaintiff was neither cross-examined on the history recorded by Professor McFarlane nor upon the extent of his alcohol consumption in 2008-2009. An assessment of the degree of intemperance is invariably a matter of personal perception. I give little weight to this issue. 136 The defendant submitted that there was inconsistency between the plaintiff's evidence that he knew that he was not travelling well and set about trying to hide the existence of the problem and the history recorded by Professor McFarlane that the plaintiff lacked insight and only saw the nature of his problems in hindsight. I do not find that there is the suggested inconsistency. As I understood the plaintiff's testimony, he told Ms Bloom during the conversation on 28 May 2004 that he "had been feeling lousy for 12 months" and had been trying "to make it look" as if he was alright. It was only with the benefit of hindsight that he fully understood how sick he was. 137 One of the matters, it seems to me, which requires earnest consideration in assessing the plaintiff's credit is the apparent difference between the MMPI-2 assessments in 2001-2002 and his testimony of nightmares, occasional flashbacks and fairly regular alcohol abuse. The plaintiff told me that he did his best to complete each test accurately and honestly. As will be discussed at a later stage in this judgment, the 2001 MMPI-2 indicated that he was not fully disclosing psychopathology and the 2002 MMPI-2 was regarded as being satisfactory. 138 Dr Brown carefully considered issues of personal responsibility in her first report. Both Dr Brown and Dr Prior were of the opinion that the plaintiff had obsessive compulsive personality traits. Dr Brown reported (ex 10 t 1.1 p 17): "Although apparently present for around a several year period, Mr Doherty apparently only became more consciously aware of his psychological problems with (sic) the issues were pointed out to him by colleagues and a supervisor. Partly, his difficulties in this regard are likely to be related to his obsessional personality style but also sound to have arisen on the basis of Mr Doherty being a man who was particularly emotionally invested in and who enjoyed his work and was reluctant to acknowledge in himself that his work exposure was distressing to him. This mental defence mechanism sounds to have been prominent throughout the course of his illness…" 139 I have concluded that for the reasons enunciated by Dr Brown, the plaintiff did not accurately complete the 2001-2002 MMPI-2 assessments and fully disclose his psychopathology. There is another aspect of the plaintiff's evidence which requires comment. Both in his witness statement and oral testimony in chief, the plaintiff demonstrated a reluctance to divulge what he had learnt about PTSD as a Peer Support Officer. The extent of his knowledge remained to be extracted in cross-examination. Nevertheless, I found the plaintiff overall to be a genuine witness and I have accepted most of his evidence. Mr Menzies referred to Dr Robert's findings of significant exaggeration by the plaintiff and pointed out that the psychiatrist was not required for cross-examination. I have referred to Dr Robert's evidence at [131-132] above. I did not, however, find that the plaintiff exaggerated or embellished his condition in his testimony before me. Leisa Doherty, I should add, was a forthright and credible witness. When was the onset of the plaintiff's psychological injury? 140 As I have related at [27] – [31] above, the plaintiff told me that his feelings of extreme fear, helplessness and horror went back to the Valevski murders in 1994. He described experiencing flashbacks about the De Gruchy murders and flashbacks and nightmares about the O'Hearn murder scene. In 1998-1999 he was abusing alcohol fairly regularly as a coping mechanism and as may be seen from the passage quoted at [27] above, he was experiencing nightmares on "a quite regular basis". Notwithstanding the plaintiff's testimony, the defendant submitted that the evidence points strongly to the onset of psychological injury between late 2002 and early 2003. 141 The seven points made for the defendant on this issue in written submissions include the plaintiff's consultation with Dr Harvey on 25 February 2002, the "satisfactory" MMPI-2 test in June 2002, the lack of negative observations by the plaintiff's colleagues prior to 2003 as to his behaviour at work or at crime scenes, his consideration that the HOD claim related to marital difficulties and the gap between late 2002 and early 2003 entries in the plaintiff's notebook. The defendant also made reference to the 2001 MMPI-2 assessment. 142 I have little difficulty accepting the plaintiff's evidence of the psychological difficulties that he experienced as a consequence of his investigation of the Valevski, De Gruchy and O'Hearn murder scenes. The Valevski and O'Hearn murders were indescribably horrific. The O'Hearn murder was shortly followed by the hideous murder of Frank Arkell. No disclosure was made of the psychological difficulties he was experiencing when he consulted his general practitioner in February 2002 as he enjoyed his work and did not wish to let his colleagues down. As a consequence, Dr Harvey found no signs of depression. All of the points supporting the defendant's contention can, in my opinion, be explained by the plaintiff's attempts to deal with his psychological problems by himself. I do not accept the defendant's submission. 143 Professor McFarlane's opinion that the plaintiff started experiencing symptoms of PTSD "as early as 1994" is consistent with the plaintiff's evidence. I find that the plaintiff's psychological injury began in 1994 following upon his attendance at the Valevski murder scene. 144 The defendant next submitted that the plaintiff suffered from depression in 2003, the cause of which was marital breakdown. Ms Bloom's consultation notes make it clear, the defendant contended, that the primary focus, if not the sole focus, was his recent separation from his first wife. 145 The plaintiff gave evidence that he believed that he had some conversation with Ms Bloom about the issues he was having at work. His evidence is supported by the psychologist's notations in the "Initial Assessment Form" of an assessment of work-related issues as being "extreme" and the identification of these issues as being "work stress". Nevertheless, it is evident from the passing over by Ms Bloom of the "traumatic incident" in the assessment form that the plaintiff did not fully relate to her the psychological problems that he was then experiencing. The consultation principally focused upon his marital difficulties, as did the consultation with Dr Harvey on 27 May 2003. 146 Although it was Professor McFarlane's view that some of the symptoms such as "anhedonia" and "anxious at work" that were noted by Dr Harvey "could have been part of the post-traumatic disorder", it is not the plaintiff's case that his general practitioner misdiagnosed depression. Professor McFarlane agreed that the "predominant picture" in the plaintiff's account to Dr Harvey was symptoms of depression. On the information that the plaintiff had provided to Dr Harvey a diagnosis of depression was plainly open. The plaintiff, however, failed to reveal to his general practitioner the symptoms of PTSD, which he was then experiencing. 147 The impact of the marital breakdown upon the plaintiff should not, in my opinion, be overstated. Whilst the plaintiff undoubtedly experienced difficulties following the separation, he had entered into a happy relationship with Leisa Doherty. 148 Leisa Doherty had the opportunity to closely observe the impact that the separation had upon the plaintiff. She said in cross-examination (T 231 L 15-27): "Q. So that must have been a terribly difficult period for you? A. It was a difficult period. Q. And also from your perception to Barry? A. Yes. Q. In the following months and up until the end of the year Barry had become quite depressed, hadn't he? A. It is upsetting to go through a marriage breakdown. It is not as simple as a yes or no. It is extremely upsetting to go through a marriage breakdown. To say that he was depressed I think is probably a bit of an extreme. Barry and I were together by that stage. There wasn't a marriage for a very long time, as we have just said. The distressing thing was just making sure he saw the kids." 149 I do not accede to the defendant's invitation to find that the cause of the plaintiff's depression was his marital difficulties. The consequences of the breakdown of the relationship were undoubtedly a cause of the depression but not the sole cause. The symptoms of depression co-occurred with the plaintiff's symptoms of PTSD. I am fortified in reaching this conclusion by Dr Durrell's evidence that he found no evidence of the plaintiff experiencing unresolved emotional turmoil regarding the first marriage. He said that if anything he found a "sense of relief". Dr Durrell considered that "the psychiatric hypothesis, from Dr Brown and Professor Tennant, that [the plaintiff's] current psychopathology is significantly related to the first marriage discord is rather farfetched". With that observation, I agree. Duty of care 150 Mr Doherty submitted that the relationship between the plaintiff and the defendant was one of employee/employer or alternatively that the duty owed by the defendant was indistinguishable from an employer's duty. Mr Doherty cited what was said by Macfarlan JA (with whom Beazley and Giles JJA agreed) in S v State of New South Wales [2009] NSWCA 164 at [58] – [59]: "The duty of care owed by an employer to an employee was described by the High Court in Czatyrko v Edith Cowan University [2005] HCA 14 (2005) 79 ALJR 838 in the following terms: An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work (at [12], citations omitted). It was not contended, nor could it have been, that a duty of this character was not owed by the respondent to the appellant. Further, it was not contended that any particular aspect of the contractual arrangement between the appellant and the respondent, or the statutory framework in which those contractual arrangements existed, bore any particular significance in the context of the issues arising upon this appeal: compare Koehler v Cerebos [19]–[25]; Fahy at [18]–[28], [93] and [234]. Further, there was no challenge to the primary judge's reference with apparent approval to the proposition that "the duty of care owed by the State of New South Wales to police officers is in no way distinguishable from that owed by any other employer to its employees" (Judgment [147] quoting McDonald v New South Wales [2001] NSWCA 303 at [46]–[47] per Stein JA). Nor was it contended that the employer's duty of care was not capable of extending to the avoidance of psychiatric injury, that being a proposition well-established by authority (for example, Koehler v Cerebos, Fahy)." 151 Mr Doherty put to me that the police force owed a non-delegable duty of care to the plaintiff to avoid exposing him to unnecessary risk of injury. 152 Mr Menzies, however, contended that the defendant's duty was to take reasonable care to avoid an injury of which there is a foreseeable risk. The concept of non-delegable duty of care, Mr Menzies argued, has no relevance. In this case, the duty to take reasonable care to ensure that the plaintiff was referred for appropriate treatment was discharged upon referral to Ms Bloom and Dr Harvey. The scope of the duty did not extend to those persons getting it right. Mr Menzies contended that the plaintiff's assertion that the duty owed to a police officer by his "employer" is indistinguishable from that of the duty of any other employer was incorrect. The duty, Mr Menzies submitted, may be analogous but had to be read in the context of the Police Act 1990 and the obligations arising under that Act. There ought to be, Mr Menzies contended, a relevant diminution or variation in the duty of care deriving from the peculiarities of the position held by a police officer. The defendant accepted that as Dr Li was its employee it would be liable for his negligence if negligence was established. Although Mr Menzies had appeared for the State in S, I understand that these arguments were not advanced in the Court of Appeal in that case and accordingly require present consideration. 153 In New South Wales v Fahy [2007] HCA 20 (2007) 81 ALJR 1021, Gummow and Hayne JJ said at [18]: " Because Ms Fahy claimed damages from that State on account of events occurring during her service as a police officer, any inquiry about the liability of the State must begin by considering the Statutes that governed Ms Fahy's service as a police officer, the statutes that regulated claims against the State, and the statutes that regulated claims brought by an employee against his or her employer." 154 The statutory provisions which governed the plaintiff's service as a police officer include the Police Act 1990. Section 6(1) Police Act describes the mission of the police force as being "to work with the community to reduce violence, crime and fear." Section 8(1) stipulates that the Commissioner is, subject to the direction of the Minister, responsible for the management and control of the police force. By s 8(2) the responsibility of the Commissioner includes the effective, efficient and economical management of the functions and activities of the police force. Section 8(3) enables the Commissioner to "classify the various duties that members of the NSW Police Force are required to perform and allocate the duties to be carried out by each such member." Section 201 provides that a police officer who neglects or refuses to obey any lawful order or to carry out any lawful duty as a police officer is guilty of an offence. 155 It follows from the obligations cast on police officers under the Police Act, that if a police officer is lawfully ordered to do something which is dangerous, no breach of duty will normally arise in requiring the officer to undertake that dangerous task. It is inevitable that police work will involve stressful, unpleasant and dangerous work. The plaintiff does not complain that the specialised work of a crime scene investigator was so inherently stressful that he should not have been obliged to undertake that work under any circumstances. The plaintiff's claim is that it was foreseeable that his work in the FSG would expose him to a high risk of psychological injury and the defendant owed him a duty to take reasonable care to prevent or minimise that high risk. This was a personal duty owed to him and could not be delegated. 156 There is nothing, it seems to me, in what was said by the High Court in Fahy which detracts from a finding that the defendant owed the plaintiff a non-delegable duty of care. It was accepted in Fahy that either the Crown or a person for whom the Crown was vicariously liable owed Ms Fahy a non-delegable duty of care. 157 A consideration of the provisions of the Police Act, to my mind, enhances the view that the duty of care is non-delegable. In determining whether a non-delegable duty exists, an important consideration is that of the element of control. In Kondis v State Transport Authority [1984] HCA 61 Mason J relevantly said (T 235 L 25): "…the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person…or is so placed in relation to that person…as to assume a particular responsibility for his…safety." 158 As police officers are under the control of the Commissioner and are obliged to perform their lawful duties, the Commissioner must necessarily owe to them, in my opinion, a special duty to take reasonable care to avoid exposing them to the unnecessary risk of injury. The specialised work of a crime scene investigator involves a high risk of psychological injury which a safe system of work is required to address. 159 There are, to my mind, a number of reasons why the defendant's argument that its duty to the plaintiff was discharged upon referring him to Ms Bloom and Dr Harvey for appropriate treatment ought to be rejected. It was the Commissioner (and through him, the plaintiff's superior officers) who was in a position to direct what work the plaintiff undertook in the FSG. The plaintiff was subject to the control and direction of his superior officers. They were in the position to be able to fully understand what the plaintiff's work with the FSG entailed (as was the PMO) whereas Ms Bloom and Dr Harvey were not. These private practitioners were dependent upon the information which the plaintiff might provide to them. This difficulty was recognised by Superintendent Sweeney in his email to Senior Sergeant Lette. As will be seen at [164] below, the reticence of crime scene investigators to divulge the difficulties that they were experiencing at work has long been acknowledged in the police force. 160 I do not accept the defendant's submission that the concept of a non-delegable duty has no relevance in the present case. In my opinion, the defendant's duty could neither be delegated to Ms Bloom nor to Dr Harvey. The defendant owed the plaintiff a non-delegable duty not merely to provide a safe system of work but to "establish, maintain and enforce such a system": McLean v Tedman [1984] HCA 60. It was the defendant's duty to take reasonable care to avoid exposing him to unnecessary risks of injury: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20. I hasten to add that the plaintiff's case is not founded upon the assertion that Ms Bloom and Dr Harvey were negligent. Breach of duty – foreseeability of risk 161 As previously indicated, breach of duty is governed by the Civil Liability Act. Section 5B Civil Liability Act provides: "(1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm , the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm , (c) the burden of taking precautions to avoid the risk of harm , (d) the social utility of the activity that creates the risk of harm." 162 The question of breach of duty of care is to be approached by considering whether there was a foreseeable risk of harm to the plaintiff in his work with the FSG, whether that risk was not insignificant and by asking, what, if any, precautions a reasonable person in the position of the defendant would have taken against any such risk. 163 The defendant concedes that it was aware of the risk of psychological injury to police officers. No concession is made, however, about the foreseeability of the risk of psychological injury to the plaintiff in particular. 164 The following documentary material reveals that the danger of work-related psychological illness to police performing crime scene investigation duties has been recognised by the police force for many years: (a) A memorandum dated 2 November 1988 from Detective Inspector Henry Delaforce to the Commander, State Operations Support Group on the subject of " Health of Physical Evidence Section personnel " included the following (ex B v 9 p 6): "While performing Physical Evidence duties over the past 25 years I have seen and spoken to many staff members who have succumbed in varying degrees to a condition that has been variously described as a nervous breakdown, anxiety state and so on. And at p 9: For some time I have been aware of research carried out by New Zealand authorities in relation to stress problems experienced by personnel involved with the Mount Erebus aircraft disaster investigation in Antarctica and with photographic laboratory staff. Recently an extract from the July 1988 edition of The American Journal of Forensic Medicine and Pathology (copy attached) came into my possession. In some ways the information detailed in this extract under the heading of 'Post traumatic Stress Disorder' conforms to the situation I have outlined in this submission. Finally, the extent of this problem should not be underestimated. There is a great reluctance for various reasons by those afflicted to openly admit and document to anyone in authority they have or are experiencing this condition. With the exception of cases that could be considered critical, the majority by far only disclose details on a strictly confidential and trust basis. Almost without exception the personnel involved desire to return to the same duties quickly although hoping for some relief from the previous pressures." It is convenient to note that Detective Inspector Delaforce recognised the reluctance of crime scene investigators to reveal personal psychological difficulties which might arise from their work. (b) A memorandum dated 30 November 1988 from John Raue, Senior Clinical Psychologist, to the Commander, Physical Evidence Section included the following (ex B v 9 p 10): "As you are aware, staff of the psychology unit have been concerned at the effects that working in the physical evidence field may have on staff. We have dealt with a number of staff from your area in relation to emotional problems and I am aware that the Police Medical Officers have also seen a number of your staff for physical matters which seem stress related." (c) In a joint memorandum dated 12 May 1999 from Senior Sergeant Lette and Mr Mutton to Dr Tony Raymond, Director Forensic Services headed "Psychological well being of crime scene examiners" (the Lette and Mutton recommendations), the psychologists make reference to (ex B v 9 p 93): " Both the NSW Ombudsman and the NSW Police Association have recently requested that the Police Service take additional steps in preventing the development of psychological difficulties in employees working in high risk areas. … We consider staff who perform crime scene duties and those from the Video Unit to be a high priority for any intervention planned by the Psychology Section". The psychologists recommended that a model of intervention be implemented in regards to crime scene examiners and video unit personnel which included: annual review of each officer by way of interview; use of psychometric tests which measure psychopathology; site visits to encourage trust between the staff and psychologist; brief annual feedback about each employee to their Commander. (d) In June 1999, a special report to Parliament was made by the Ombudsman under s 31 of the Ombudsman Act 1974 covering the need for the police force to identify and support police officers whose psychological wellbeing had been affected by stress. 165 I do not propose to dwell further here upon all of the documentary material which evidences that the risk of a crime scene investigator suffering psychological injury was foreseeable. Other documentary material will be considered when I come to the steps which were taken by the police force to ameliorate the risk. That evidence is also relevant to the question of the foreseeability of the risk. 166 The work of a crime scene investigator with the FSG, more so than the work of a police officer performing general duties, involves constant exposure to scenes of death, some of which are highly unpleasant. The risk of a police officer suffering psychological injury as a consequence of performing his work in the FSG was of a high magnitude and had been recognised by the police psychologists as such. The work that the plaintiff was obliged to undertake required him to regularly deal with death, trauma and grief. Some of the crime and accident scenes that he attended were gruesome and horrific. His duties were such that it was likely that he would be exposed to events which provoked in him feelings of fear, helplessness and horror. There can be no doubt that it was readily foreseeable that the plaintiff may suffer serious psychological injury such as depression or PTSD as a result of performing that work. That risk was not insignificant. 167 The probability of psychological injury occurring to the plaintiff was of a high order and the psychological injury was likely to be severe. These are factors which are to be considered in determining what a reasonable person would have done in response to that risk. Other factors include those matters mentioned in s 5B(2)(c)-(d) Civil Liability Act, namely, the burden of taking precautions to avoid the risk, and social utility of the activity that creates the risk. What systems to ameliorate risk were introduced by the police force? 168 Mr Menzies said that the question to be asked is what would a reasonably, prudent police force in 2003, 2004 and 2005 do given its conflicting duties. He cited the following remarks of Kirby J in Fahy at [135]: "The duties of police officers sometimes present them with circumstances of violence, horror, death, anger and destruction. In such circumstances, the risk of PTSD as a consequence of employment duties is far from far-fetched or fanciful. It is actual and real. A reasonably careful employer would not simply occasionally praise and exhort its employees and wash its hands of the responsibility to minimise the risks and dangers of such stress. It would do what is reasonable to prevent and minimise the dangers. What is reasonable will not, and could not, involve the elimination of all such risks. But preventative and supporting strategies are known and available. Conformably with the discharge of the duty of care imposed by the common law of Australia on employers, appropriate protective strategies have to be devised, adopted, maintained and enforced." (italics added) 169 It was put to me that a reasonable response was to: educate members of the police force; ensure that supervisors of the members are aware of the potential problem; provide, as far as is possible, objective measures such as testing, for the identification of any problems; encourage officers to reveal their problems and ensure confidentiality to encourage them in doing so; attempt to engage officers and oblige compliance; have suitably trained and qualified staff to both diagnose and treat; have a suitable rehabilitation program with officers employed to implement any such program; when a problem is identified ensure that appropriate steps are taken. 170 The defendant contended that all of these steps were in place and had been implemented. It was further said that the plaintiff was not naïve, was aware of the services of the Police Psychology section and his training as a Peer Support Officer had included the signs, symptoms and causes of PTSD. 171 It is the defendant's case that it introduced systems to ameliorate the risk of psychological injury which were a reasonable response to that risk. 172 The evidence establishes that: (a) The Police Psychology section was available, for both treatment and training. A core function of the section was to provide "trauma crisis counselling" for members of the police force including debriefings which were stated to be "compulsory following major traumatic incidents" (ex 1 v 1 t 45). The plaintiff participated in group debriefings following the "Valevski murders", the Kosciusko National Park and the Nowra air crashes which were conducted by police psychologists. There is no evidence of a group debriefing being conducted after the O'Hearn and Arkell murders. It seems that there was no individual "follow up" by a psychologist after the group debriefings save for the email from Mr Mutton and Ms Stamoulis following the Nowra air crash. Another function of the section was to provide training and advice to police management. Management assistance included presentations on stress and anger issues and formal courses for police identified as having "particular skill deficits eg, anxiety management" (ex 1 v 1 t 45). The section also provided professional clinical and psychological services to all police and members of their families. The plaintiff availed himself of these services after the motor accident in 1987. (b) The Police Psychology section supervised the introduction of the peer support officer program. The aim of the program was described as being "to identify local police volunteers who are suitable to be both proactive and reactive in assisting colleagues deal with stress and seek early intervention at times of crisis" (ex 1 v 1 t 45). The training, which a Peer Support Officer underwent, included the characteristics, signs and symptoms of PTSD and factors which may affect "a colleague's reaction and recovery from a critical incident" (ex 1 v 1 t 45 pp 27-29). The plaintiff acknowledged that his training as a Peer Support Officer dealt with PTSD in some detail and that he was aware of the characteristics of the illness. Entries in the plaintiff's duty book provide some detail of his work in attending to the welfare of other police officers (ex 25). One of the officers to whom he paid a welfare visit was Sergeant Passmore who was suffering PTSD. (c) An FSG Welfare Focus Group was established, the aim of which was to maximise the physical and mental wellbeing of forensic services staff. One of the terms of reference of the Focus Group was "to identify and teach early warning health and welfare indicators" (ex 2). The plaintiff was a member of the Focus Group. (d) An External Employee Assistance Program (EAP) was available to all members of the police force. The resources of the EAP were said to be freely available to local commands for any critical incident that caused undue stress to police officers other than death or serious injury which remained within the purview of the Police Psychology section (ex 1 v 1 t 30). Advice was provided to police officers about the EAP and how it could be accessed. The plaintiff was aware of the assistance that could be provided to him through the EAP. He was referred through the program to Ms Bloom. (e) Psychologists from the Police Psychology section visited police stations from time to time for formal meetings and on an 'ad hoc' basis. Senior Sergeant Lette's file note of 10 December 2001 discloses that she visited Wollongong FSG and reminded the plaintiff "individually of the services available via the psychology section and the EAP" (ex 4). (f) Articles were regularly published in the Police Service Weekly about work-related stress, maintenance of good health and PTSD which the plaintiff acknowledged. Other articles concerning psychological wellbeing were published on the police intranet. (g) Training of supervisors included recognition of psychological ill-health. Police supervisors were targeted to ensure that they had an awareness of how they could assist police who had been involved in critical incidents (ex B v 9 pp 12-21). The beneficial impact of supervisory awareness of the psychological health of subordinate officers is demonstrated by Detective Sergeant Hodder's referral of the plaintiff to Ms Bloom through the EAP and by Superintendent Sweeney's request that he see Dr Li, the PMO. (h) A system of psychometric testing was introduced. The Forensic Services Welfare Guidelines , which were adopted by the FSG in June 2002 provided for the annual psychometric review of all operational officers. The Police Psychology section used the Minnesota Multiphasic Personality Inventory–Form 2 (MMPI-2) as an instrument to assess FSG officers. The plaintiff was psychometrically tested in April 2001, June 2002, November 2004 and February 2005. He was not tested in 2003. (i) Rehabilitation assistance was offered to police officers. The rehabilitation report of Sonja Steffen dated 28 November 2006 records that the plaintiff "returned to work in September 2004, and John Tubman, RTW Co-ordinator reported that Mr Doherty did not want to participate in formal occupational rehabilitation, and that his return to work was managed at a local level by Wollongong Crime Scene and the rehabilitation file was closed" (ex 27 p 26). 173 All of the psychiatrists were of the opinion that group debriefings do not decrease long-term adverse psychological outcomes. The system of having psychologists drop in from time to time was considered to have the limited benefit of enabling a police officer to develop an informal relationship with the psychologist and then being more likely to approach and disclose to the psychologist if and when a problem arose. 174 A two-pronged attack was mounted by the plaintiff upon the precautions taken by the defendant against the risk of injury. Some of the systems that had been put in place were said to be deficient, other systems, the plaintiff contended, had not been properly implemented in his case. In written submissions the plaintiff complained that the defendant breached its duty of care to him because, whilst knowing that his job was high risk for psychological injury, it failed to take certain precautions against the risk of harm. I propose now to consider each of the complaints in chronological order: Before 2003 175 The following breaches of duty are asserted: (i) Used an inappropriate screen, namely the MMPI-2 which was a personality measure, not directed to either PTSD or depression; (ii) In any event, not having the MMPI-2 interpreted by a clinical psychologist who had been specially trained in interpreting this test; (iii) Having regard to the result of the MMPI-2 test in 2001, failing to have a structured clinical interview with the plaintiff. 176 The Lette and Mutton recommendations recommended that each crime scene investigator be annually reviewed by way of interview and psychometric tests be used which measure psychopathology. The psychologists' recommendation for an annual interview, it seems, was not adopted whereas a system of annual psychometric testing using the MMPI-2 was introduced. 177 Professor McFarlane was critical of the systems implemented by the police force. He reported: " These [the Mutton and Lette recommendations] are important proposals but need to be implemented in certain ways so as to ensure their effectiveness. Firstly, the psychometric tests used need to be specifically those that measure posttraumatic pathology. The New South Wales Police Service continues to use instruments such as the MMPI and the DASS, which are not specifically designed for this purpose. Secondly, the interview needs to follow the use of these measures to interview any individuals who answer to significant symptoms. Simply the use of cut-offs at a clinical level cannot be used alone to determine those officers at risk." 178 Professor McFarlane's disapprobation of the use of the MMPI-2 was founded on a number of bases. He gave evidence that the instrument had over 500 questions and was not "the ideal instrument for screening populations." Furthermore, it was not designed specifically for the task of detecting PTSD and major depression. It was more of a personality inventory although it did have items in it which "capture symptoms". He said that screening instruments such as the PCL (Post-Traumatic Symptom check list) which specifically targets the symptoms of PTSD, or HADS (Hospital Anxiety and Depression Score) or Beck Depression Inventory, both of which target depression, were suitable. Another instrument he considered to be appropriate was the K 10. The PCL, Beck Depression Inventory and K 10 are in use in the Australian Defence Force. The K 10 is another measure of general distress. Professor McFarlane pointed out that the PCL had 17 items and the K 10 ten items compared to the MMPI-2 which had 500. These instruments had efficiency and simplicity and gave, he said, "much more direct information." 179 Professor McFarlane, however, agreed that one of the advantages of the MMPI-2 was that it contained validity scales which he considered to be a distinct advantage. It provided, he said, "further information above and beyond the other information." Professor McFarlane qualified his opinions on the appropriateness of the MMPI-2 by acknowledging that he was not a registered psychologist and it was an instrument that should be administered by psychologists. 180 Jill Farrelly, a clinical psychologist, assessed the plaintiff at the request of his solicitors in May 2008. In a report dated 6 July 2008, Ms Farrelly wrote (ex B v 8 p 17): "There was a memorandum written by Mr David Mutton, Chief Psychologist and Senior Sergeant Jennifer Lette, Psychologist dated 12.5.99 commenting on the vulnerability of staff who perform crime scene duties and recommending, inter alia, annual review of each officer by way of interview and psychometric tests to measure psychopathology. This suggestion was indeed a reasonable response to the foreseeable risk of psychiatric injury. Such a model would have identified Mr Doherty as at risk. He had been assessed using the MMPI-2 (and some other measures) but with no follow-up interview, and there was no implementation of measures to provide necessary assistance to Mr Doherty. The MMPI-2 was the best measure used, but the results were apparently disregarded by his employer." 181 There was no criticism by Ms Farrelly of the use of the MMPI-2. It was her view that the first MMPI-2 profile indicated very clear danger signs of the plaintiff being in psychological trouble which the police force failed to act upon. Ms Farrelly's report is further considered at [190-191] below. 182 Dr Brown gave evidence that it was a "debatable issue" as to whether the MMPI-2 was a suitable screen for the detection of either depression or PTSD. In her opinion, the MMPI-2 was useful as a screening instrument as it asks "so many questions." She said that it covers many different areas of symptoms and "the pick-up rate for symptoms is quite good" but acknowledged that it was not as useful in providing a diagnosis of depression or PTSD. She agreed that there were a number of different tests available to pick up early signs of PTSD or depression, the most commonly used being the Beck Depression Inventory. 183 Professor Tennant did not consider that the use of the MMPI-2 was inappropriate. He gave evidence that it is "an over-kill instrument" with 500 items. It probably measured, he said, "symptoms as well as any other of the self-assessment screens because it is so detailed." He thought that the police force could use more brief, cost and time effective measures "such as the DASS or K 10" which were primarily directed to symptoms of depression and anxiety. 184 Dr Roberts did not agree with Professor McFarlane's criticism of the use of the MMPI-2. It was her view that it was the most sophisticated test of general psychopathology available and noted that it had very sophisticated inbuilt validity scales despite not specifically diagnosing PTSD. Dr Roberts reported that whilst the PCL is a specific measure of PTSD, it has no validity scales in it and its purpose is transparent. She expressed the view that it would not be the questionnaire of choice "if you were assessing PTSD in the current context." The K 10, she reported, does not diagnose PTSD and does not contain any validity measure at all. Its purpose is also transparent. Dr Roberts stated (ex 24): " Neither the PCL nor the K-10 can pick up any sort of response distortion styles, such as over-reporting or under-reporting and which the MMPI-2 can." 185 I do not think that the use of the MMPI-2 to psychometrically test the plaintiff before 2003 was not a reasonable response to the risk that he might suffer psychological injury. Although specifically targeted screening instruments such as the PCL or K 10 may have provided a more efficient measure in the detection of depression or PTSD, it does not follow that by using the MMPI-2 the defendant was negligent. I accept that the MMPI-2 was a valuable instrument in the annual measuring of members of the FSG who had not otherwise indicated depression or PTSD. Its advantages included the use of validity scales and a wide coverage of symptoms. 186 Mr Menzies put to me that the second complaint of breach – that is, not having the MMPI-2 interpreted by a specifically trained clinical psychologist – had never been asserted as a particular of negligence. In the present proceedings, the question of particulars had assumed particular significance in the arguments advanced before Hulme J. The second complaint does not fall within the particulars identified at [3] above upon which the plaintiff's case is founded. I am of the view that Mr Menzies's submission is correct and I do not propose to consider the second complaint. In any event, there is a degree of self-contradiction in the second and third complaints as the plaintiff seeks to rely in the latter complaint upon the notations which appear in the extended score report. The extended score report is found in ex 11.2. 187 I turn now to consider the third complaint – that is, that having regard to the results of the 2001 MMPI-2, the defendant breached its duty of care by failing to have a structured clinical interview with the plaintiff. 188 The views of Professor McFarlane and Professor Tennant on the topic of psychological interviews have been ventilated at [129(iii)] above. Professor McFarlane was of the opinion that a psychometric test by itself was not an adequate screen. He gave specific consideration to the plaintiff's MMPI-2 which was conducted on 9 April 2001. When the plaintiff was tested with the MMPI-2 it was noted on the extended score report that the plaintiff was "likely to be under-reporting psychopathology." The identity of the author of this notation is unknown but it is reasonable to infer on the balance of probabilities that it was the psychologist within the Police Psychology section who assessed the results. Professor McFarlane gave the following evidence (T 265 L 1-17): "Q. Professor, in 2001, April 2001, you are aware that the plaintiff was first tested with the MMPI-2 test and somebody has written on it, we don't know who, but there seems to be writing on it from somebody who has assessed its results, namely the words "likely to be under-reporting psychopathology". He was never interviewed after that. Should he have been? A. Your Honour, I've seen those results and part of that questionnaire report lists a series of symptoms and in that list, he certainly reports some issues that I would have wanted to interview him about. The first one was that he complained of having ideas and thoughts on his mind as he was going to sleep that were troubling him and that, in my mind, would make it important to ensure that these weren't post-traumatic ruminations that he was having. The second thing that was reported was that he was using alcohol excessively and even that symptom reported of its own right I believe should have led to an interview, especially in the light of him apparently under-reporting symptomatology. I think there was enough there to ensure that there weren't more substantial issues behind what had been disclosed in the questionnaire." 189 Professor Tennant, however, considered that the notation of under-reporting psychopathology did not necessarily mean that the plaintiff should be interviewed, as under-reporting did not mean that the "patient has pathological symptoms." 190 Ms Farrelly considered the first MMPI-2 which was administered. Whilst she refers to this assessment being conducted in 1999, it is plain that she was considering the assessment in April 2001. She reported that the MMPI-2 validity scale profile was "at best, borderline valid or even invalid." There were, she states, "high scores on the L and K scales" – the latter being very high. She agreed with the notations on the computer-scored report regarding these scores: "viz" "defensive set" and "defensiveness" and "under-report??" She was of the opinion that "the profile would indicate to a trained assessor that Mr Doherty was defensive – more than most people would be in responding to this questionnaire, and was under-reporting psychopathology." This picture, she said, continued on the Supplementary Scales Profile. She agreed with the notation "likely to be under-reporting psychopathology." Ms Farrelly observed that there was also a "very high score on the over-controlled hostility scale (T=76). This score was circled but no comment made." Ms Farrelly opined (ex B v 8 p 15): "The picture is one of an individual who is in psychological trouble: denying psychological problems and admitting to having to place controls on the expression of hostility." 191 It was Ms Farrelly's view that there were "very clear danger signs of the MMPI-2 profile" but it appeared nothing was done by the police force "to take heed of the danger signs and assist him." Ms Farrelly made no mention of the plaintiff's MMPI-2 on 25 June 2002 but referred to the assessment on 16 February 2005. I confirm that in accordance with what I said in Doherty v State of New South Wales [2009] NSWSC 1345 at [19] that I have given less weight to the opinions expressed by Ms Farrelly as they were not subject to cross-examination due to her death in February 2009. 192 Dr Brown considered that a finding of under-reporting was not necessarily indicative of psychopathology. She reported that individuals, particularly of a private and reserved personality type, are likely to provide an under-disclosure even when they not suffering from complaints of a post-traumatic stress type. 193 Dr Roberts reviewed each of the MMPI-2 assessments. As to the first and second, she reported (ex 10 t 3.1 p 70): "On the first such assessment, there were signs that he was defensive and likely to be under reporting psychopathology. On the second assessment the profile was interpreted as satisfactory." 194 On the opinions as to the first assessment expressed by Ms Farrelly Dr Roberts wrote (ex 10 t 3.1 p 72): " Ms Farrelly was critical of the Police Force, claiming that the first MMPI-2 Mr Doherty did showed a picture of someone in psychological trouble who was denying psychological problems and admitting to having placed tight controls on the expression of hostility. She interpreted those as showing very clear danger signs, but that nothing was done to help. She said that his psychological problems became more overt and he began to receive treatment from Marian Bloom from early 2003. However, I do not think that it can be inferred that because someone is defensive, that therefore their later PTSD could have been prevented if intervention had occurred. Also, the system of validity being used then was a lot less detailed than subsequently. She appears unaware that there was another MMPI-2 done in 2002 which was satisfactory." 195 Dr Roberts expanded upon her disagreement with Ms Farrelly by stating in her report dated 2 December 2009 (ex 24): "[Ms Farrelly] opined that had he been treated appropriately, based on those MMPI-2 results, PTSD could have been prevented. She argues that after Mr Doherty's psychological problems became more overt in 2003, he began to receive psychological intervention. However, that argument presupposes that Mr Doherty actually did have significant psychological problems in 1999 or 2000 and that they continued. The June 2002 profile, which Ms Farrelly did not have, indicates that there was nothing of concern at that time in terms of any significant psychopathology. He did start to have treatment in 2003, but this related to marital problems. I therefore think it likely that had Ms Farrelly had access to that 2002 material, as well as the reasons why he started treatment in 2003, her views would likely have been different on this issue." 196 Whilst Ms Farrelly's oversight of the 2002 assessment might impact upon consideration of questions of causation and the onset of the plaintiff's PTSD, it has no bearing, in my opinion, upon her assessment that the plaintiff was under-reporting psychopathology in the 2001 assessment and should have been interviewed by a psychologist. 197 It is now convenient to refer to another aspect of Professor McFarlane's testimony. When he was asked to comment on the 2002 MMPI-2 assessment, he said that his response would be very similar to the 2001 instrument. He pointed to a number of items which he considered to be unsatisfactory and said that he would "certainly be wanting to inquire further about [these] items." 198 Dr Roberts was critical of Professor McFarlane's elucidation of the extended score reports. She considered that interpretation of the MMPI-2 should only be done by a clinical psychologist who had undergone specialised training in MMPI-2 interpretation. Individual items, she warned, need to be interpreted extremely cautiously. It was the overall interpretation across the profile, she wrote, which was of importance and on which the plaintiff did not show clinical problems in 2002. 199 There was no disagreement, however, by Dr Roberts, as is seen from the passage quoted at [193] above, that the plaintiff in the 2001 assessment was likely to be under-reporting psychopathology. 200 The Lette and Mutton recommendations included both psychometric testing and annual review by way of interview. Although the failure to conduct an annual interview is not the subject of the third complaint of breach before 2003, the issue arises in the complaints of breach during 2003 and it is convenient to deal with this issue now. It is regrettable, in my opinion, that the recommendation for an annual interview was not adopted, particularly as it was well-known that police officers were unlikely to report their psychopathological symptoms when they arose and that dependence on psychometric testing by itself as an indicator of an individual's clinical state was unreliable. The likelihood of detection of psychological injury in members of the FSG would, it seems to me, have been increased, by providing a secondary psychological assessment by way of an interview. In any event, in the plaintiff's case the 2001 MMPI-2 indicated, at the very least, that he was not fully disclosing psychopathology. Unfortunately he was not interviewed. The burden of arranging a follow-up interview was not significant. The probability that the plaintiff would suffer psychological injury was, in my opinion, increased by the failure in these circumstances to clinically interview him. 201 Another consideration is the social utility of the activity that creates the risk of harm: s 5B(2)(d) Civil Liability Act. The activities of an FSG officer include crime scene investigation and detection of the offender with participation in the offender's prosecution as an expert witness. I consider it to be of fundamental importance to the criminal justice system that these important activities are carried out by properly qualified objective police officers who are free from psychological injury. Crime scene investigation was the activity which created the risk of harm. 202 A reasonable person in the position of the police force would not have partially implemented the Lette and Mutton recommendations. The recommended system of annual reviews of each crime scene investigator by way of an interview and psychometric testing was a reasonable response to the high risk of psychological injury to them. Without an annual review by way of an interview with a psychologist, the systems which the police force had in place were not a reasonable response to the high risk of psychological injury. This was one way in which the defendant breached its duty of care to the plaintiff in 2003. Another way was in 2001 by failing to act upon the indications of under-reporting in the plaintiff's 2001 MMPI-2 assessment. In these circumstances, a reasonable person in the position of the police force would have ensured that the plaintiff was clinically interviewed by a psychologist. The third complaint of breach of duty is, in my opinion, established. The breaches of duty, which I have identified fall within the particulars of negligence quoted at [3] above. During 2003 203 The following breaches of duty are asserted: (i) In not screening and interviewing the plaintiff at all during 2003; (ii) In returning him to crime scene work in June 2003, while he was still symptomatic and using prescribed antidepressants; (iii) Failing to closely monitor him upon his return to work in June 2003. 204 I propose to recount in a summarised way the arguments of the parties on the question of breach during 2003. Mr Menzies submitted that the plaintiff was diagnosed with depression in 2003, that he had been "captured" and psychometric testing was no more than a screening test to capture people who were ill. He had been referred to a psychologist and to a general practitioner so the complaint of lack of screening and of an interview went nowhere. As to the complaint of the plaintiff's return to work, Mr Menzies referred to the evidence of Dr Brown and Professor Tennant which was said to be supported by the National Institute for Clinical Excellence guidelines (the NICE guidelines). Particular reference was made to the NICE guidelines for the Treatment of Adults with Acute Stress Disorder and Posttraumatic Stress Disorder which stated (ex 26 t 2 p 143): "The challenge of determining recommendations for future duties should be based on an individual's residual pattern of arousability and general adaptation. If a significant degree of triggered distress remains, it is probable that further exposures will exacerbate the individual's symptoms. In these instances, it is best to minimise the probability of such exposures and recommend alternative duties." 205 Mr Menzies put to me that the plaintiff did not have "a significant degree of triggered distress" remaining when he was returned to work in 2003 and 2004. He contended that there was no breach of duty. 206 Mr Doherty argued that the plaintiff should not have been returned to crime scene work until he had a remission of his symptoms and the risk of relapse had become negligible. It was the employer's duty to take whatever steps were necessary to eliminate or minimise a risk of injury to the plaintiff and it was against that background a decision had to be made whether it was reasonable or unreasonable to return him to "the coal face". Particular reference was made to the testimony of Professor Tennant and Dr Roberts that the plaintiff should have been closely monitored but it seemed, Mr Doherty contended, that there had been no contact between Dr Harvey and the police force nor was there any follow-up by the defendant. Mr Doherty placed reliance upon the opinions expressed by Professor McFarlane. 207 As has been recounted at [41-42] above, the plaintiff had been referred through the EAP to Ms Bloom. The psychologist rang Dr Harvey who saw him on 27 May 2003. Dr Harvey diagnosed depression and prescribed Cipramil. The plaintiff was placed off work from 20 May 2003 until 4 June 2003. On the day before he returned to work, Dr Harvey considered the plaintiff's mood was "6/10" and his depression was getting better. The plaintiff then returned to crime scene investigation work but was taking Cipramil which had been prescribed at 20mg once a night. The plaintiff next consulted Dr Harvey on 17 June 2003 whose diagnosis was "depression better" but the dosage of Cipramil increased from one 20mg a night to one and a half 20mg a night. The dosage of Cipramil was reduced to one 20mg a night by Dr Harvey on 29 October 2003 who recorded that the "depression [was] going okay". It seems that, other than these consultations with his general practitioner, the plaintiff's diagnosed depression was not otherwise monitored. The plaintiff was not reviewed by Ms Bloom until May 2004 nor was there any communication between Dr Harvey and the police force. 208 Although there was discord between Professor McFarlane and Professor Tennant upon whether the plaintiff should have been returned to crime scene work whilst on medication, all of the experts agreed that his prognosis should have been closely monitored. Dr Brown opined that she probably would have trialled him back at work but would have kept "a very close eye on him because of the concern that he might relapse". Very careful monitoring after May 2003 involved reviewing him regularly probably once a month or a fortnight. She considered that, as depression increased vulnerability to the effects of exposure to gruesome scenes, his return to work should have been on restricted duties for several months before he trialled himself on crime scene attendance. In this respect there was little difference between the opinions of Dr Brown and Professor McFarlane who considered that the plaintiff could return to work full-time "but for a period of time he should have been withheld from crime scenes." 209 Whilst Professor Tennant was of the view that the plaintiff could return to work with some symptoms, he said the general practitioner, psychologist and police force would be aware of "keeping a close eye on him." 210 The plaintiff had not fully recovered when he returned to work on 4 June 2003. It is of no consequence, in my view, that the cause of the diagnosed depression may have been considered to be as a consequence of his marital difficulties. The plaintiff was in fact experiencing nightmares and flashbacks of "jobs that he had been to previously" but he had not told his general practitioner of them. A significant degree of triggered distress remained. He was vulnerable to relapse and at the very least required close monitoring. He was neither psychometrically tested nor clinically interviewed by a psychologist from the Police Psychology section or elsewhere. He was not referred to the PMO. 211 It is evident that the police force was aware of the increased risk of psychological injury by returning FSG officers who had developed psychological symptoms to crime scene investigation work. Superintendent Philip Flogel states (ex 31): "Crime Scene officers suffering from psychological symptoms who are supported by their treating doctors in returning to work, are wherever possible, provided with restricted or alternative duties within FSG." 212 No consideration, it appears, was given to placing the plaintiff on restricted duties. 213 The guideline for annual psychometric testing was not followed at all in 2003 in the plaintiff's case. Superintendent Flogel gave evidence that if an officer was unavailable to be tested for reasons such as court duty or leave, the officer would be followed up to ensure that the annual test was undertaken. The evidence does not disclose why the plaintiff was not tested. I do not accept Mr Menzies's submission that the plaintiff had been diagnosed with depression and as a consequence the screening test was otiose. As the plaintiff had developed psychological symptoms from which he had not fully recovered and was vulnerable to relapse and psychological injury, reasonable precautions against the foreseeable high risk of psychological injury included placement on restricted duties, psychometric testing and a clinical interview by a psychologist before he was returned to crime scene investigation duties. Upon his return to these duties, the plaintiff should have been closely monitored. Unfortunately, he was not. In these circumstances, a reasonable person in the position of the police force would have taken those precautions and in failing to do so, the police force breached its duty of care to the plaintiff. The breaches of duty which I have identified fall within the particulars of negligence quoted at [3] above. During 2004 214 The following breaches of duty are asserted: (i) "In not screening at all in 2004 Dr Li's interview on 23 November 2004 (sic)"; (ii) In using a DASS screen (or half a DASS screen) on 23 November 2004 for a man coming off four months off work with a diagnosis of PTSD when such a screen does not detect symptoms of PTSD; (iii) In Dr Li certifying him for full operational duties while: (a) he was still symptomatic; (b) he was still taking antidepressants; (c) relying on the plaintiff's own judgement about his fitness; (iv) Consulting the general practitioner, Dr Harvey when the Commander of FSG Superintendent Sweeney had informed Senior Sergeant Lette that he suspected the general practitioner had no real understanding of the job as a crime scene investigator or much about law enforcement stressors; (v) Either not knowing about Senior Sergeant Lette's opinion in the email dated 1 November 2004 or alternatively knowing about it but ignoring it and not contacting Senior Sergeant Lette; (vi) Not closely monitoring the plaintiff upon his return to full operational duties in November 2004. 215 The defendant submitted that Dr Li was not negligent. The plaintiff had informed Dr Li that he had no significant symptoms and if he had no significant symptoms it was appropriate to return him to work. The defendant contended that it would not be reasonably practicable to introduce a regime whereby officers were not returned to work until symptom-free for six months, even if that were the ideal. During oral argument, Mr Menzies referred to the evidence of Professor Tennant and Dr Brown that the plaintiff did not need to be symptom-free before he returned to work. He pointed out that some five weeks went by before the plaintiff was exposed to any potentially traumatic scenes and seven months elapsed before the plaintiff suffered a relapse in April 2005. Both Dr Li and Dr Harvey had considered him fit to return to work. Dr Li had screened him by using the DASS which, Mr Menzies said, was an effective screening instrument for anxiety and depression and the plaintiff's results indicated that he was well. It was ridiculous, Mr Menzies argued, to have a psychiatric assessment every time somebody is showing a psychological disorder of this nature. He argued that there was nothing wrong with the regime the plaintiff was under, he was monitored and as soon as a perceivable problem arose, he was removed from crime scene duties. Mr Menzies put to me that none of the plaintiff's complaints of breach had been established. 216 Mr Doherty submitted in oral argument that the plaintiff had been returned to work when he should not have been. It was negligent for Dr Li to certify him as being fit for full operational duties. There had been no contact with Senior Sergeant Lette, the psychologist, who had considered that a psychiatric assessment was advisable. He argued that the plaintiff was neither closely monitored by Ms Bloom nor Dr Harvey. Mr Doherty contended that it was incumbent upon the police force to ensure that the plaintiff was being completely monitored and to be aware of how he was as it was the police force who returned him to full operational duties. 217 Dr Harvey diagnosed during the consultation on 27 May 2004 that the plaintiff was suffering from PTSD. Dr Harvey prescribed Cipramil and Diazepam. The plaintiff took sick leave and was off work until 13 September 2004. Before returning to work he had been certified by Dr Harvey as being fit to return to work on reduced duties with no on-call work. The dosage of Cipramil was reduced to two a night. He was initially not permitted to attend at crime scenes. Whilst in the FSG office, he was preparing crime scene documentation and examining exhibits. After a short period of time, he returned to normal working hours and attended crime scenes in the company of other FSG officers. He resumed normal operational duties after being back at work for "a few weeks." It seems that Dr Harvey was not consulted prior to his resumption of normal duties nor were any of the PMOs or psychologists in the Police Psychology section. Dr Christopher Canaris, a psychiatrist, in a report dated 26 November 2007 to the plaintiff's solicitors noted "the absence of any documentation certifying him as fit to return to full duties in the Forensic Services Group before his assessment by Dr Li" (ex B v 8 p 8). 218 Superintendent Sweeney, the plaintiff's commanding officer, was concerned about the plaintiff's recovery. He expressed his uncertainty about the plaintiff and his suspicion that his general practitioner had no real understanding of crime scene investigation work in an email to Senior Sergeant Lette on 28 October 2004. Senior Sergeant Lette notified Ms Rogers in an email dated 1 November 2004 (the Lette email) that the plaintiff was "clearly unwell", was suffering from PTSD and that a psychiatric assessment was advisable. Dr Li, the PMO, examined the plaintiff on 23 November 2004 and certified him as being fit for full operational duties. It is evident that when the plaintiff saw Dr Li, he told the PMO that he believed he could remain on full operational duties and could cope with exposure to crime scene materials without impact on his psychological condition. According to Dr Li he indicated that he currently did not suffer from any "significant psychological conditions." Dr Li spoke to Dr Harvey who informed him that the plaintiff's symptoms were better and his condition was stable. Dr Harvey said that he was happy for the plaintiff to stay in the FSG and would consider a referral to a psychiatrist if it became necessary. Dr Li conducted a DASS 21 screening test which indicated that the plaintiff had no significant problems. 219 One of the plaintiff's complaints of breach of duty is the use by Dr Li of the DASS screen. Professor McFarlane gave evidence that the DASS was a reasonable instrument looking for depression or anxiety but it was not an instrument that "looks for post-traumatic stress disorder" and did not cover the issue of PTSD adequately. He considered that a measure particularly designed for the symptoms of PTSD should have been used. In cross-examination, Professor McFarlane accepted that the DASS can be used for depression and anxiety but the critical issue was its ability to detect PTSD. 220 Professor Tennant did not agree with Professor McFarlane. He reported that the DASS is "a very good screening test for depressive and anxiety disorders, being the two most common psychiatric conditions…within the police force." While the instrument would not give a specific diagnosis for PTSD, he considered that it would nonetheless identify the anxiety conditions associated with that condition. He opined that the DASS was a good screening tool "because people with PTSD don't just have the traumatic symptoms, they have wide-ranging anxiety symptoms and a lot of depressive symptoms" that would be picked up by the DASS. 221 Dr Brown referred to the DASS as being one of a number of different available tests that pick up early signs of depression or PTSD. Dr Brown was not further questioned on this subject. I do not think that Dr Brown intended to convey by her evidence an understanding that the DASS could specifically diagnose PTSD. 222 The defendant submitted that the tests preferred by Professor McFarlane seemed to be, if not identical, not materially different to the DASS test. Although there appears to be a degree of similarity, Professors McFarlane and Tennant shared the common ground that the DASS could not detect PTSD. It is clear that the PCL is a specific measure for the detection of PTSD. 223 Whilst it is apparent that it is widely accepted in Australia that the DASS is a good screening test for depressive and anxiety disorders, it is far from clear that the use of the DASS, in the circumstances which were presented to Dr Li, was a practice "widely accepted in Australia by peer professional opinion": s 50 Civil Liability Act. Dr Li was aware that the plaintiff had been diagnosed as suffering from PTSD. 224 The plaintiff's work as a crime scene investigator was high risk for PTSD. A reasonable precaution against the risk that the plaintiff might not have recovered from PTSD required, in my view, the use of a screening instrument which had the ability to detect PTSD. The DASS was not such an instrument whereas the PCL was. There is no suggestion that the use of the PCL would have been unreasonably burdensome for the defendant. The use of the DASS was not, in the circumstances, a reasonable response to the risk. 225 The plaintiff complains about Dr Li. Dr Canaris was critical of the PMO. He reported (ex B v 8 p 9): " Frankly, Dr Li seems to have a less than adequate appreciation of the extent of your client's trauma exposure and of the extent of his risk of relapse. Dr Li does not appear to have sought any advice from the psychology branch which I would have thought mandatory in your client's situation. Your client should have been referred for independent review to a psychiatrist (or at least a psychologist) with specific expertise in posttraumatic stress disorder. Given his history of at least two periods off work with "psychological symptoms" in the context of a high-level trauma exposure, I think a return to the Forensic Services Group carried a substantial and foreseeable risk of precipitating relapse of symptoms." 226 I have ventilated in a summarised way at [129] above the disagreements between Professors McFarlane and Tennant. On this issue, Professor Tennant considered that the plaintiff was fully and adequately assessed by Dr Harvey and Dr Li whereas Professor McFarlane did not. Both Professor Tennant and Dr Brown were of the opinion that the plaintiff did not need to be symptom-free in order to return to work in November 2004. 227 In a supplementary report dated 24 June 2009, Dr Brown wrote that Dr Li's examination and his efforts to check with Dr Harvey the information that had been provided by the plaintiff "were entirely appropriate and of the standard of good medical practice". She did not consider that it was inappropriate for Dr Li to advise him that he could return to work in his current duties. During cross-examination, Dr Brown however, was of the view that the plaintiff would have been better served by being assessed by a treating psychiatrist in mid-2004 when he had a relapse of symptoms. The plaintiff could have gone back to restricted duties and waited "a further several months before he actually went back and trialled himself out on the more gruesome aspects of his work attendance." She hoped that the information in the Lette email would have been provided to Dr Li. 228 Notwithstanding the information provided to Dr Li by the plaintiff and Dr Harvey, in my view, Dr Canaris's opinion that the plaintiff should have been referred by Dr Li for an independent review by a psychiatrist (or at least a psychologist) should be accepted. His opinion finds support in Dr Brown's view that the plaintiff would have been better served by an independent psychiatric assessment in mid-2004 and in Senior Sergeant Lette's opinion in the Lette email that a psychiatric assessment was advisable. Professor McFarlane also considered that a review was warranted, but by an occupational physician within the police force. 229 The evidence does not reveal whether the contents of the Lette email were brought to Dr Li's attention. Mr Menzies put to me that the context in which the email was sent is unknown. It appears, however, from its contents that Senior Sergeant Lette, having read the plaintiff's referral, considered that he was unwell and suffering from PTSD. Her opinion that a psychiatric assessment was advisable was based upon the degree of the plaintiff's illness and the type of work he performed. Dr Li makes no mention of the Lette email or contact with Senior Sergeant Lette in his statement or clinical notes. I draw the inference on the balance of probabilities that the contents of the email were either not brought to the PMO's attention or if they were, the PMO did not discuss them with the psychologist. As Dr Brown opined, the contents of the Lette email should have been provided to the PMO. The systems which the defendant had in place to ameliorate the risk of psychological injury failed if they were not. A reasonable person in the position of the police force would have taken that precaution. If they were provided to the PMO, Dr Li at the very least should have contacted Senior Sergeant Lette about her opinions. A reasonable person in Dr Li's position would have taken that precaution. 230 I do not accept Mr Menzies's argument that it was ridiculous to have a psychiatric assessment. When the plaintiff came to see Dr Li, he had been off work in 2003 with a diagnosis of depression and in 2004 with a diagnosis of PTSD. His psychometric assessment in 2001 indicated that he was likely to be under-reporting psychopathology and his 2002 assessment was satisfactory. The reluctance of crime scene investigators to reveal their true position and desire to continue on with their same duties was well-known as was the high risk of psychological injury to them. 231 Even upon the information that had been provided by the plaintiff to Dr Li, the plaintiff was not symptom-free. As Professor McFarlane emphasised, the revelation by the plaintiff that his sleeping "was improving" did not mean that his sleep was fully normalised. The notation by Dr Li of "thinking of previous jobs and had memories of pictures" indicated that the plaintiff was continuing to have recollections. Whilst the plaintiff said he could control these symptoms, Professor McFarlane said that did not mean that symptoms were not present. 232 I am satisfied that the plaintiff's history, symptoms and high-risk occupation required more than an enquiry by Dr Li to the plaintiff's general practitioner. I do not agree with Professor Tennant's opinion that the issue of the plaintiff's return to work was primarily the responsibility of Dr Harvey. The plaintiff had been referred to the PMO by Superintendent Sweeney as he was concerned about the plaintiff's recovery and suspected that Dr Harvey had no real understanding of the work of a crime scene investigator. In all these circumstances, a reasonable person in the PMO's position would, in my view, have taken the precaution of referring him to a psychiatrist. Superintendent Sweeney should not have been informed that the plaintiff could remain on his current duties. In all of these respects, Dr Li breached his duty of care to the plaintiff. 233 Professor McFarlane referred to the requirement in the Australian Defence Force whereby defence force personnel are to be symptom-free for six months before they are re-exposed to significant risk. Superintendent Flogel, however, explained that if all officers within the FSG who have been identified as suffering from a psychological disorder are not allowed back into their role in the FSG for a period of six months after their condition had completely resolved the investigation of crime in New South Wales would be severely hampered and would probably come to a halt. His reasons for this conclusion include the length of time required to train a crime scene investigation officer and the need for continuity due to the lengthy period between initial investigation and court hearing. I accept Superintendent Flogel's evidence on this issue. The imposition of a 'no return to work until symptom-free for six months' policy on the police force would be both impractical and unreasonable. 234 When considering the 2003 diagnosis of depression Dr Brown expressed the view that the plaintiff could have gone back to restricted duties "and waited at least perhaps a further several months" before he returned to crime scene work. The defendant submitted that in fact five weeks went by before the plaintiff attended potentially traumatic scenes and seven months passed before he relapsed in April 2005. Although it is true that after being certified on 8 September 2004 by Dr Harvey as fit for work on reduced duties with no on call work the plaintiff did not resume normal operational duties for some weeks, he returned to crime scenes in the company of other FSG officers after a short period of time. He made, it seems to me, a hasty return to attending at crime scenes. His office work involved the preparation of crime scene documentation and examination of exhibits which provided a constant reminder of crime scenes that he had attended. Whilst I accept Superintendent Flogel's evidence that the FSG office environment has the potential to expose officers to traumatic events through documentary material, careful consideration should have been given by the police force to ensuring that the plaintiff's restricted duties did not exacerbate his symptoms. In my opinion, the defendant can draw little comfort from the manner in which the plaintiff returned to work in September 2004. It is hardly surprising that Superintendent Sweeney became concerned about his recovery. 235 Another complaint is that the plaintiff was not closely monitored after Dr Li certified him as being fit for full operational duties. All of the psychiatrists agreed that he required careful monitoring. Professor Tennant referred to the general practitioner, the psychologist and the police force being aware of the need to keep a close eye on him. Dr Roberts in cross-examination spoke of a clinical psychiatrist reviewing him regularly "probably once a month maximum, maybe once a fortnight." In re-examination she considered as being reasonable continuing monitoring by the general practitioner with that general practitioner being in contact from time to time with the psychologist. Dr Li had also informed Superintendent Sweeney that the plaintiff would need to see "his treating doctor(s) regularly, say about once a month, for his psychological condition and his full operational duties at FSG." 236 The plaintiff's psychological condition was neither carefully monitored by Dr Harvey or Ms Bloom nor was there regular contact between the general practitioner and the psychologist. Ms Bloom did not see him until 3 May 2005. Much time had elapsed since the last consultation in July 2004. Dr Harvey did not see the plaintiff on a monthly basis to review his PTSD. It seems that Dr Li's advice to Superintendent Sweeney was disregarded. Dr Harvey next saw the plaintiff on 10 January 2005 when the he complained of fever and joint pain. A consultation on 11 March 2005 followed about another physical complaint. None of the psychologists from the Police Psychology section interviewed him nor was he reviewed by the PMO. A reasonable person in the position of the police force would have taken the precaution of ensuring that the plaintiff's psychological condition was carefully monitored. 237 This was a simple and inexpensive precaution that the defendant should have taken to avoid the risk of exacerbation of the plaintiff's PTSD. The defendant breached its duty of care to the plaintiff by failing to take that precaution. The breaches of duty which I have identified fall within the particulars of negligence quoted at [3] above. Causation 238 The issue of causation is to be dealt with in accordance with s 5D Civil Liability Act. Section 5D is as follows: "(1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( scope of liability ). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party." 239 The High Court (French CJ, Gummow, Hayne, Heydon and Crennan JJ) in Adeels Palace said at [42]-[45]: "Section 5D(1) of that Act divides the determination of whether negligence caused particular harm into two elements: factual causation and scope of liability. Dividing the issue of causation in this way expresses the relevant questions in a way that may differ from what was said by Mason CJ, in March v Stramare (E & M H) Pty Ltd, to be the common law's approach to causation. The references in March v Stramare to causation being "ultimately a matter of common sense" were evidently intended to disapprove the proposition "that value judgment has, or should have, no part to play in resolving causation as an issue of fact". By contrast, s 5D(1) treats factual causation and scope of liability as separate and distinct issues. It is not necessary to examine whether or to what extent the approach to causation described in March v Stramare might lead to a conclusion about factual causation different from the conclusion that should be reached by applying s 5D(1). It is sufficient to observe that, in cases where the Civil Liability Act or equivalent statutes are engaged, it is the applicable statutory provision that must be applied. Next it is necessary to observe that the first of the two elements identified in s 5D(1) (factual causation) is determined by the "but for" test: but for the negligent act or omission, would the harm have occurred?" 240 Principal reliance was placed by the plaintiff upon the breaches of duty identified during 2003 and 2004. The plaintiff submitted that the 'but for' test is clearly satisfied. It was said that 'but for' the fact that he was returned to crime scene work in 2003 and again in late 2004, the harm would not have been sustained. Furthermore, 'but for' the fact that he was not monitored after his return to work, the harm would probably have been avoided. The plaintiff also submitted that the failure to adequately test and monitor him from 2001 onwards materially contributed to his damage. It is not the plaintiff's case that the commencement of the symptoms of PTSD in 1994 was caused by any negligent act or omission on the part of the defendant. 241 The defendant submitted that none of its breaches of duty caused the plaintiff's PTSD or depression nor was the plaintiff's condition exacerbated by any breach. There was no breach in requiring him to do the work of a crime scene officer. The defendant argued that even if the results of the MMPI-2 in 2001 indicated a need for further enquiry, in as much as the plaintiff was hiding his symptoms, he continued to hide them and further enquiry of him would have revealed nothing. The defendant referred to the disagreement between Professor McFarlane and Professor Tennant in relation to the concept of kindling and submitted that one must identify which of the traumatic exposures occurred in circumstances of a breach of duty and identify whether that exposure caused PTSD, in the sense of the 'but for' test. It was put to me unless those two matters are found as fact then the defendant did not negligently cause the plaintiff's PTSD. The exposure in 2002 (the sight of Bill Carvino's body) was accidental and did not arise from any breach of duty. Similarly it was submitted that the precipitant for the PTSD in May 2004 was not work-related and that there was no breach causing the PTSD. 242 I am not at all persuaded by the defendant's submission that psychometric testing and an interview by a psychologist would not have revealed anything due to the plaintiff's reticence to disclose his symptoms. During the interview with Ms Bloom on 19 May 2003, the plaintiff had partially disclosed issues he was having at work which, regrettably, was not followed up by another psychological interview before he was further exposed to crime scenes. 243 In the circumstances of this case, it is unnecessary to attempt to resolve the disagreement between Professors McFarlane and Tennant on the concept of kindling. But for the breaches of duty during 2003 the plaintiff would not have returned to crime scene work on 4 June 2003. He was traumatically confronted with the death by suicide of the girl at Chevalier College and the death of the elderly pedestrian in November 2003 at a time when he was experiencing nightmares and anxiety. I am satisfied on the balance of probabilities that these traumatic exposures would not have occurred but for the plaintiff's return to crime scene work and but for the defendant's failure to closely monitor him after he had returned to work. 244 There was no disagreement between Professors McFarlane and Tennant as to the impact that exposure to traumatic events might have upon the plaintiff who had prior symptoms of PTSD. Professor Tennant referred to "chronicity." Re-exposure to more and more traumatic events meant that initial symptoms would not recover, they were likely to get worse and become chronic. Professor McFarlane on this topic gave the following evidence (T 261 L 17-29): "Q. Is it your opinion that him continuing in crime scene investigation work after May 2003 has played a part in his current condition? A. Yes. Q. What sort of part? A. In my opinion, his subsequent relapse occurred for exactly the reasons that I have suggested previously. He was obviously exposed to events in their own right which could cause post traumatic stress disorder, but because he had previously been disordered and equally had major depression, these events simply undid the benefits that he gained from treatment. They reinstituted the disorder of affect and arousal which he was experiencing previously." 245 I accept Professor McFarlane's view that the plaintiff would still be working full-time if he had been taken out of crime scene investigation work in the middle of 2003 and had been provided with appropriate treatment. I find as a matter of fact that the identified breaches of duty in 2003 significantly contributed to the chronicity and severity of the plaintiff's PTSD and major depression. I find that it is appropriate for the scope of the defendant's liability to extend to "the harm so caused." 246 But for the defendant's breaches of duty during 2004, I am satisfied on the balance of probabilities that the plaintiff would not have been certified as being fit for full operational duties in November 2004. I find that it is more likely than not that an independent psychiatric assessment of the plaintiff and testing for PTSD by use of the PCL would have disclosed that he was unwell and suffering from PTSD. The plaintiff was traumatically confronted with the murder-suicide at Oak Flats on Anzac Day 2005 and within a few weeks thereafter the apparent suicide of a young man in bushland near Berry at a time when he was experiencing nightmares and anxiety. But for the plaintiff's return to crime scene work and but for the defendant's failure to closely monitor him after his return to work, I am satisfied on the balance of probabilities that these traumatic exposures would not have occurred. I accept Professor McFarlane's opinion that had the plaintiff been removed from the FSG in November 2004, his outcome would have been different and that he would still have the capacity for employment, probably within the police force. I find as a matter of fact that the identified breaches of duty during 2004 substantially contributed to the chronicity and severity of the plaintiff's PTSD and major depression. I find that it is appropriate for the scope of the defendant's liability to extend to "the harm so caused." 247 There is no merit in the defendant's contention that the precipitant for the PTSD in May 2004 was not work-related and as a consequence there was no breach. This submission was founded upon Ms Bloom's notes on 28 May 2004 of a loss of "2 friends in a car crash on Friday" and Dr Brown's opinion that "possibly the incident of the cousin's suicide and possibly the incident of the friend's motor vehicle accident were causally related to the plaintiff's PTSD". The notation that follows the entry of the 'car crash' in Ms Bloom's notes, however, records that the plaintiff was "feeling lousy since 12 months – been trying to make it like he's allright (sic)." Dr Brown, furthermore, testified that it was difficult to be definitive about this issue and that there was a long list of traumatic exposures during the course of the plaintiff's work over the years outlined in the statement of claim. I accept Professor McFarlane's evidence that there were multiple traumatic events that contributed to the plaintiff's PTSD and it is not possible to identify a single event. I have no doubt that the traumatic exposures in November 2003 contributed to his PTSD and depression. 248 The defendant's breaches of duty before 2003, in my opinion, also contributed to the occurrence of the plaintiff's PTSD and depression. I do not accept that if the defendant had acted upon the indications of under-reporting in the plaintiff's 2001 MMPI-2 assessment and ensured that he was clinically interviewed by a psychologist that nothing would have been revealed. As I have previously observed, the plaintiff made a partial disclosure of work-related issues to Ms Bloom in May 2003 and I have little difficulty concluding that it is more probable than not that a clinical interview by a police psychologist conversant with the 2001 MMPI-2 assessment would have uncovered the plaintiff's traumatic memories, nightmares and sleep difficulties. Professor McFarlane expressed the opinion that an appropriately trained clinician would be likely to see through expressions of wellness by a police officer. Police psychologists were well aware of the tendency of police officers to minimise their symptoms and, in my view, it is unlikely that a police psychologist would have been confuted by the plaintiff's reticence to disclose his psychological problems. But for the defendant's breach of duty in 2001, the plaintiff would not have been further exposed to traumatic crime scenes without having undergone psychological treatment. 249 Another issue requires consideration. The defendant argued that whilst there was a risk of potential exacerbation or aggravation of PTSD by further exposure to traumatic events, there is no evidence that the duration of the pre-existing disorder influences the post-treatment outcome. This is the issue of "entrenchment" which has been discussed at [129(ii)] above. On this topic, Professor Tennant said (T 416 L 33-42): "Now, once treatment is implemented, there is no evidence that the exposure to those previously recurring events affects your ability to respond to treatment. Nor does the chronicity, pre-treatment chronicity affect whether you get better or not. Now, that's the literature I have provided to you about, does duration of pre-treatment chronicity affect final treatment outcome. The literature says - I can't find any literature that does support that and I have provided that review, so the Court - and indeed I think Professor McFarlane - will - will get confused between treatment resistance and chronicity and will keep talking about more events make you chronic, they do, but once treatment begins you either are the sort of person who is a treatment responder or you are not." 250 Professor McFarlane was on the other hand of the view that as the disorder becomes entrenched, the underlying neurobiological abnormalities become progressively inflexible and unresponsive to treatment. 251 Whilst there is some research which supports Professor Tennant's views on entrenchment, the issue is far from settled. I have difficulty accepting in the plaintiff's circumstances that the delay in his treatment has not impacted upon his treatment outcome. In any event, it seems to me that it makes little difference which of the opinions on entrenchment is accepted. According to Professor Tennant a person is either a treatment responder or is not. Dr Durrell, the plaintiff's treating psychiatrist, was not of the opinion that his patient fell within the group of persons who are treatment non-responders. He said this (T 351 L 24-30): "Q. In relation to the treatment that you have been providing to him, has he improved? A. He - I note there's been talk of him not responding. My understanding is that my treatment has been effective in containing his symptoms to a degree and, without treatment, I would anticipate an escalation and a deterioration so in a sense we're holding the line and I consider that to be a treatment response." 252 Dr Brown did not consider the plaintiff to be a treatment non-responder. She was of the opinion that there remained a number of treatment opportunities for the plaintiff and his prognosis was not as grim as it would currently seem to be. The question of his prognosis is considered at [304-305] below. 253 Having made these findings, I consider it to be unnecessary to consider the asserted breaches of statutory duty. Contributory Negligence 254 The defendant submits that the plaintiff was guilty of contributory negligence. The allegations of contributory negligence are particularised in the defence to the second amended statement of claim as follows: (a) Failure to monitor his own mental, emotional and/or behavioural status; (b) Failure to take sufficient or any care for his own mental, emotional and/or behavioural welfare; (c) Failure to advise his supervisors of any mental, emotional and/or behavioural problems he may have been experiencing; (d) Failure to advise the defendant's welfare branch, chaplaincy, peer support officers, psychology unit or any other competent medical practitioner of any mental, emotional and/or behavioural problems; (e) Failure to arrange debriefings and/or assistance for himself; (f) Failure to heed or adopt advice and instructions as to how to deal with stress of employment; (g) Failure to take advantage of the services of the defendant's welfare branch and psychology unit that were available to him and of which he was well aware. 255 The defendant argued that the plaintiff actively hid from his employer that he was ill. This confounded, it was said, attempts to assist him and caused him to be placed in a position of risk which would have been avoided entirely had he revealed his true condition. 256 The plaintiff submitted that there had not been any contributory negligence. The plaintiff contended that he had been required to work in an occupation that he knew ultimately was likely to put upon him psychological damage which he had no choice but to accept. It was said that he did the tests he was required to do before 2003 honestly, that he only ceased work in 2003 when Detective Sergeant Hodder spoke to him. Having regard to the police culture and his conscientiousness, it was put to me that the plaintiff could not be criticised for trying to sweep how he was feeling under the carpet. He did not think anything was happening to him until it was too late. 257 The issue of contributory negligence is governed by s 5R Civil Liability Act. Section 5R(1) provides that the principles that are applicable in determining whether the defendant has been negligent also apply in determining whether the plaintiff has been contributory negligent in failing to take precautions against the risk of harm which befell him. The standard of care required of the plaintiff is that of a reasonable person in his position and the matter is to be determined on the basis of what the plaintiff knew or ought to have known at the time: s 5R(2). The defendant bears the onus of establishing that the plaintiff has been guilty of contributory negligence and the question of contributory negligence is to be determined objectively: Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 per McColl JA at [144-146]. 258 What then did the plaintiff know or ought to know? As has been found, the plaintiff's psychological injury began in 1994. He experienced flashbacks about the De Gruchy murders and flashbacks and nightmares about the O'Hearn murder scenes before 2001. In 1998-1999 he had nightmares on "a quite regular basis" and abused alcohol fairly regularly as a coping mechanism. It was his testimony that the flashbacks increased from the 2000's (sic) and in 2001 he was having "heaps of nightmares" and had become withdrawn at home. More particularly, in 2003-2004 the frequency of the flashbacks increased. The plaintiff, however, did not reveal that he was experiencing these psychological difficulties until he consulted Dr Harvey on 27 May 2004 and was diagnosed with PTSD. 259 The plaintiff explained that he had heard of PTSD but did not fully understand what the term meant. In particular, he expected he would be treated, would recover and continue with his work as a crime scene investigator. With the benefit of hindsight, he realised that he did not at the time understand the nature and extent of PTSD (ex A pars 1682-1689). 260 The plaintiff, however, was not unfamiliar with the concept of PTSD. He had been trained as a Peer Support Officer and PTSD had been dealt with in some detail during the peer support program in 1996. He was a member of the FSG Welfare Focus Group which had been established by Dr Raymond. In cross-examination, he agreed that he was aware of the need to be conscious of himself, that if he thought that he was not travelling well, he should take it up with a Peer Support Officer, colleague, supervisor or psychologist. He agreed that he had delivered at one of the welfare meetings a paper entitled "Welfare issues from my perspective as a crime scene examiner/exposure to gruesome incidents" (ex 3). This document includes the following passages: " Welfare Issues As Crime Scene Examiners we attend scenes at times that are of an horrific or gruesome nature, this is the nature of our work. From my experience all of these scenes affect us in some way, some more profoundly than others. I believe that some of the scenes that we attend have an effect on us whether we realise it or not. This would be the case, regardless the type of support that we receive or the coping mechanisms used. … … Post Scene Support EARLY INTERVENTION: Supervisors and peers should closely monitor staff after attendance at gruesome scenes or after periods of heavy workload. It is our responsibility to monitor our colleagues for any changes in their work habits. We all know from experience that if you are feeling down or stressed that the majority of people will not come forward and ask for help. Close monitoring and early intervention can minimise some of the peripheral stressors such as workload, brief preparation, work environment and the court process. … WE NEED TO TALK: You know yourself how you are coping, we have to learn to speak up and ask for assistance if we need it. It may be something small, like assistance with a part of a job, a roster change, or speaking to a colleague, supervisor or peer support officer about issues that are concerning you." 261 It is plain that the plaintiff, as a Peer Support Officer and member of the FSG Welfare Focus Group, was aware of the risk that a crime scene investigator might suffer psychological harm as a consequence of his work in the FSG and of the need to speak to others of the difficulties that were being experienced. He had in the past benefited from consultations with Dr Anderson and Mr Raue from the Police Psychology section. He had paid welfare visits to other police officers including Sergeant Passmore. 262 Mr Doherty argued that, notwithstanding the plaintiff had "all the information", he believed "that's not going to happen to [him]." Mr Doherty put to me that it was not contributory negligence because "the [plaintiff] may well have had the academic information but what else would he have done?" 263 Professor McFarlane gave evidence to the effect that persons with knowledge of depression or PTSD may have very little understanding of what is happening to themselves. He said (T 202 L 45-46): "So what one can see in others is not the same as one can see in one's self." 264 The plaintiff, however, told Ms Bloom during the consultation on 28 May 2004 that he had been feeling "lousy for 12 months" and had been trying to make it look as if he was alright. In cross-examination, he accepted that he knew that there was something wrong with him but continued with his work. I find that when the plaintiff returned to work on 4 June 2003 he was aware that he was continuing to experience nightmares and flashbacks, all of which were work-related, but he failed to tell his general practitioner, Ms Bloom, Detective Sergeant Hodder or the police psychologists of these problems. I accept that he did not do so because he enjoyed his work, was fearful that he may lose his position in the FSG and furthermore did not wish to let his colleagues down. The plaintiff disguised the fact that he was unwell so that he could continue to work. I am satisfied on the balance of probabilities that the plaintiff, in all the circumstances, knew there was a risk that his psychological problems would intensify if he continued with crime scene investigation work. After all, he had endeavoured to cope for some years but his nightmares and flashbacks had become more frequent. The risk of serious harm was not insignificant. 265 Although one might initially be sympathetic to the plaintiff's motivation in not exposing his symptoms, it is, as I have pointed out at [201] above, of fundamental importance to the criminal justice system that a crime scene investigator carries out his important functions without being affected by psychological injury. The shortcuts that the plaintiff ultimately found himself taking demonstrate the potential difficulties that might arise. I am satisfied on the balance of probabilities that, in the circumstances, a reasonable person in his position would have disclosed his psychological problems. This was a precaution that the plaintiff could simply have taken particularly when he consulted Dr Harvey in June and October 2003 or by arranging to see Ms Bloom or a police psychologist. In failing to do so, he failed to take reasonable care for his own mental health. 266 I should add that the plaintiff's experience of nightmares and flashbacks commenced well before he saw Dr Harvey on 25 February 2002. In the passage of evidence I have quoted at [34] above, he testified that he was "having nightmares and stuff like that" but said nothing about his difficulties to the doctor. It is unnecessary, in my view, for the plaintiff to have known of the nature and extent of PTSD. He could not have understood that his nightmares and other difficulties were otherwise than work related. In failing to tell Dr Harvey of his psychological problems, the plaintiff failed to take reasonable care for his own mental health. 267 The submission that regard should be had to the 'police culture' has, in my opinion, no merit. The initiatives undertaken by the police force to overcome the reticence of police officers to disclose their psychological difficulties included the peer support program and the Welfare Focus Group. The plaintiff had himself encouraged his fellow officers to discuss their problems. I, furthermore, reject Mr Doherty's contention that the plaintiff had in reality no choice but to accept the circumstances in which he had to work. 268 By failing to reveal his psychological problems, the plaintiff exposed himself to crime scenes after he returned to work in 2003 when he knew he was unwell. The traumatic exposures which followed would not have occurred but for his conduct. 269 When the plaintiff returned to work on 8 September 2004 on reduced hours he had been previously diagnosed with PTSD. Upon returning to work, he struggled to cope and was physically sick before attending work. I find that he knew that he had not recovered from PTSD but deliberately chose to hide his symptoms. He misled his general practitioner and commanding officer. The information which he gave to Dr Li was intentionally untrue. The plaintiff could neither have honestly held the belief that he could cope with exposure to crime scene materials without impact on his psychological condition nor understood that he was not having problems after his return to full operational duties. He could not have lacked insight or have been mistaken about these matters. I am satisfied on the balance of probabilities, notwithstanding the plaintiff's desire to remain at work, that in the circumstances a reasonable person in his position would have disclosed his psychological problems to his general practitioner, PMO or commanding officer. This was a precaution he simply could have taken. He failed to take reasonable care for his own mental health. 270 By failing to reveal his true position and by being misleading the plaintiff made it particularly difficult for the medical practitioners, psychologists and supervisors to help him. The plaintiff negligently exposed himself to crime scenes in 2003 and 2004. The traumatic exposures which followed would not have occurred but for this conduct. I find as a matter of fact that his negligence contributed in a significant way to the chronicity and severity of his PTSD and major depression. Nevertheless, I am not satisfied that the plaintiff's contribution to the harm that he has suffered is more than that of the defendant. I do not propose to retell here the defendant's breaches of duty save to say that one consideration is that the defendant knew of the reluctance of crime scene investigators to reveal personal psychological difficulties which might arise from their work and the plaintiff's reticence to disclose his symptoms was reasonably foreseeable. I assess the extent of the reduction in damages by reason of the plaintiff's contributory negligence to be thirty five per cent. Is the plaintiff's claim statute barred? 271 The plaintiff commenced proceedings on 13 March 2008. The defendant asserts that the plaintiff's claim is statute barred. As I have found that the defendant breached its duty of care in 2001, 2003 and 2004, it is necessary to refer to the statutory regimes which apply to the limitation question. Where a cause of action for personal injury accrued on or after 1 September 1990 and before 6 December 2002, the limitation period is 3 years running from the date on which the cause of action first accrues: s 18A Limitation Act 1969. Under s 5R(2) of the Limitation Act, upon application, the court may, if it decides that it is just and reasonable to do so, order that the limitation period be extended for such period not exceeding 5 years, as it determines. Under s 60E(1), in exercising this power, the court must have regard to all the circumstances of the case, and in particular to those matters to the extent that they are relevant, in sub-paras (a)-(h). The plaintiff bears the onus of proving that it is just and reasonable to make the order. 272 Where the cause of action accrues on or after 6 December 2002, two limitation periods apply: a 3 year post discovery limitation period, and a 12 year long-stop limitation period. An action is not maintainable if brought after the expiration of whichever of the two limitation periods is the first to expire: s 50C Limitation Act. Section 50D(1) relevantly provides that a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury … concerned has occurred, (b) the fact that the injury … was caused by the fault of the defendant, (c) the injury was sufficiently serious to justify the bringing of an action on the cause of action. 273 Section 50D(2) provides that a person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. This is sometimes described as "constructive knowledge." 274 The defendant bears the onus of proof of establishing that the claim is statute barred. Mr Menzies submitted that the assertion by the plaintiff of his relevant absence of understanding of PTSD and what it amounted to would not be accepted in the light of his admissions about hiding his disabilities and of his knowledge of PTSD. Mr Menzies put to me that the cause of action was certainly discoverable if it is said that he suffered the injury some time in 2003. If before then, Mr Menzies argued that there is no justification for an extension of time under the Act as it existed before 2002. 275 I propose to deal now with the causes of action which accrued after 6 December 2002. When were these causes of action discoverable? 276 Mr Doherty submitted that 13 March 2005 was the relevant date for consideration of the knowledge of the plaintiff as it was 3 years prior to the commencement of the proceedings. 277 The evidence discloses that the plaintiff did not cease work until 17 May 2005. He did not attend the scene of the murder-suicide at Oak Flats until Anzac Day 2005 and the scene of the apparent suicide near Berry until a few weeks later. Whilst he had been hiding his symptoms and knew that he was unwell, he hoped that he would be able to continue as a crime scene investigator. He did not realise until after he was certified by the Police Superannuation Advisory Committee on 25 October 2007 that he was incapacitated for police duty due to the infirmity of "chronic mild post traumatic stress disorder", that he could neither return to work as a crime scene investigator nor as a general duties police officer. He had consulted Walter Madden Jenkins, his solicitors, on 23 March 2007 and in August of that year counsel was briefed to advise on possible common law proceedings. On counsel's advice, a preliminary report was obtained from Dr Canaris on the issue of breach of duty. A copy of Dr Canaris's report was sent to the plaintiff by his solicitors, which he received on 19 February 2008. I accept the plaintiff's evidence that he first realised "the infirmity of which [he] was discharged medically unfit was caused by the lack of care of the defendant" when he had read the psychiatrist's report. 278 The relevant fact identified in s 50D(1)(a) is that "…the injury…concerned has occurred." The plaintiff was aware when he returned to work in June 2003 that he was continuing to experience nightmares and flashbacks which were work-related. Dr Harvey diagnosed that he was suffering from PTSD on 27 May 2004. The plaintiff knew at the latest by 27 May 2004 that the injury concerned had occurred. 279 The relevant fact identified in s 50D(1)(b) is that "the injury…was caused by the fault of the defendant." As Basten JA explained in Baker-Morrison v State of New South Wales [2009] NSWCA 35 at [28], the relevant connection is one of causation between the injury on the one hand and the fault of the defendant on the other. Basten JA (with whom Ipp and Macfarlan JJA agreed) was of the opinion at [41] that "a legal evaluative judgment appears to be required by par (b)." Although the plaintiff knew that he was unwell and failed to take reasonable care for his own mental health, he could not be said to be aware (or ought to have been aware) that his PTSD was caused by any of the defendant's breaches of duty which have been identified until he had obtained legal advice and had been provided with Dr Canaris's report. 280 The relevant fact identified in s 50D(1)(c) is that "the injury was sufficiently serious to justify the bringing of an action." Basten JA said at [42]: "The construction of para (c) which would involve the person obtaining medical and legal advice gains support from the fact that a number of statutory regimes contain floors or caps on recovery of damages, or both: see, eg, Civil Liability Act, s 16. No proper view could be formed about the justification for bringing an action, absent information of that kind." 281 And at [44]: "To the extent that para (c) requires an assessment of the seriousness of injury sufficient to justify the bringing of proceedings, coherence with the broader statutory framework requires that the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made." 282 The plaintiff did not have the relevant legal and medical information to allow an informed professional judgment to be made until 19 February 2008. This was the first date that the plaintiff knew or ought to have known of each of the facts in s 50D(1) and the causes of action were not discoverable until that time. The causes of action which accrued after 6 December 2002 are not statute barred. 283 The limitation period for the cause of action which accrued in 2001 is 3 years, however, it may be extended for such a period not exceeding 5 years. The facts which have been detailed at [277] above are relevant to the matters to be considered in sub-paras (a), (b), (c), (d) and (g) of s 60E. The defendant does not contend that it has been prejudiced by the delay. The plaintiff's injury is serious. It is just and reasonable to order that the limitation period be extended up to and including the 13 March 2008 on which date the statement of claim was filed. Damages 284 Damages are to be assessed in accordance with the provisions of Part 2 of the Civil Liability Act. Should there be a deduction for damage not caused by the defendant's negligence? 285 The defendant contended that there must be a deduction for that proportion of damage which the defendant did not cause. It was put to me that the asserted instances of the defendant's breach of duty resulted, at their highest in some temporary aggravation of the plaintiff's condition or in a relapse, each of which would probably have occurred regardless. Once treatment was instituted the plaintiff, the defendant submitted, has done as well as he would have done in the absence of negligence. Any verdict, therefore, needs to be discounted substantially. During oral submissions, Mr Menzies argued that the highest the plaintiff's case can go is that his condition was worsened by the defendant's negligence. This was, he said, a case where one has to separate the "pre-negligence" condition from the "post-negligence" condition. Mr Menzies further submitted that the plaintiff would have had some degree of disability anyhow, regardless of any breach of duty by the defendant, which was to be considered in any assessment of damages. Mr Doherty on the other hand submitted that once causation is established, then all of the damage is recoverable as a result of the material contribution of the breach. 286 As has been found at [143] above, the plaintiff's psychological injury began in 1994 following upon his attendance at the Valevski murder scene. His attendances at the Valevski, De Gruchy, O'Hearn and Arkell murder scenes did not involve any breach of duty by the defendant. Although he experienced symptoms of PTSD prior to 2001, the plaintiff had not become unwell and was coping with his duties as a crime scene investigator. I consider that a discount for damage that the plaintiff had suffered prior to the defendant's breaches of duty that have been identified would be confined to the symptoms of PTSD. If Mr Menzies's submission is correct, any reduction in the plaintiff's damages would be insignificant. 287 I have no hesitation in rejecting the defendant's submission that its breaches of duty resulted in a temporary aggravation or in a relapse of his condition which would have occurred in any event. The defendant has not established that it is more likely than not the plaintiff's condition would have occurred in any event and I do not propose to discount his damages for non-economic loss to reflect such a possibility. The percentage deduction for vicissitudes in the assessment of future economic loss at [325] below includes the chance that he would have suffered his illness in any event. 288 The conundrum posed by Mr Menzies as to a discount for the plaintiff's "pre-negligence" condition may, to my mind, be resolved by returning to considerations of foreseeability and causation. It was reasonably foreseeable that the plaintiff might suffer serious psychological injury as a result of his work. The reticence of the plaintiff to disclose his symptoms was also reasonably foreseeable. Furthermore, it was reasonably foreseeable that the plaintiff was continuing to perform his duties as a crime scene officer with undisclosed symptoms of PTSD and depression. The defendant's negligence was a necessary condition of the occurrence of the plaintiff's injury. As the plaintiff's injury was a foreseeable consequence of its negligence, the defendant is liable for all of the injury caused, notwithstanding the existence of prior symptoms. 289 Another way of resolving the question is by resorting to the "egg-shell skull rule" – that the defendant "must take the plaintiff as he finds him" (Dulieu v White & Sons [1901] 2 KB 669; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 per Windeyer J at 406. The plaintiff's injury was a foreseeable consequence of the defendant's negligence and the defendant is liable for all of the injury caused. Accordingly, I reject the defendant's argument. Disabilities 290 The plaintiff was born on 11 May 1963 and is 47 years of age. He ceased work as a crime scene investigator on 17 May 2005 when aged 42 years and has not worked in any capacity since. When he was medically discharged from the police force on 2 November 2007 he was 44 years of age. He suffers from PTSD with chronic and severe symptoms and a major depressive disorder. 291 I accept that the plaintiff developed distressing and intrusive recollections of major traumatic events. He has experienced a significant degree of emotional numbing and loss of interest in activities that were previously pleasurable. He has suffered from irritability, sleep disturbance, difficulty with memory and concentration, an exaggerated startle response and hyper vigilance. His weight has increased since he left work. It seems that from 2004 the plaintiff's weight gain has been about eleven kilograms and the plaintiff was mistaken in his testimony of a gain of almost twenty kilograms. The medication prescribed by Dr Durrell helps him sleep but even with medication, he experiences nightmares, waking up and difficulties returning to sleep. He has been socially withdrawn and has had a foreshortened sense of the future. Since 2005, the plaintiff has contemplated suicide a number of times. His medication had made him feel very lethargic and on some days he struggles to get out of his home. He experiences "good days" and "bad days". On "bad days" he can become reclusive and withdrawn. Although he can perform some household tasks, he is restricted in those that he can carry out. He is unable to mow the lawn as dog faeces make him vomit and bring back intrusive memories of jobs. Flies and maggots also trigger intrusive memories. 292 The plaintiff's premorbid personality was that of an easy going, sociable and un-phased person which plainly he no longer is. I find that the degree of destruction of the plaintiff's enjoyment of life by his illness has been significant and he has been diminished by his persisting disabilities. Psychiatric and psychological evidence of the plaintiff's prognosis and capacity for work 293 Before commencing an assessment of the plaintiff's damages, I propose to review in a summarised way the psychiatric and psychological evidence as to the plaintiff's prognosis and future work capacity about which there is some dispute. 294 Professor McFarlane considered that the plaintiff's "underlying symptoms of the numbing, interpersonal withdrawal and hyper-arousal" were likely to remain in the foreseeable future which symptoms posed a significant disadvantage to him. He is generally, Professor McFarlane reported, less resilient and unable to manage and deal with stressful environmental situations. Professor McFarlane pointed out that individuals with PTSD become increasingly reactive to a range of life situations which is a particular disadvantage in their interpersonal relations. The plaintiff was at significantly increased risk of having exacerbations of his symptoms at times of major life stress. He also has a significantly increased risk of cardiovascular disease. 295 Professor McFarlane reported that the plaintiff was no longer capable of working full-time. He opined (ex B v 8 p 44): "To maintain his quality of life [the plaintiff] at the most could manage a parttime job of about 8 hours per week in a situation that would not demand any distained contact with members of the public. Equally, his capacity to travel around his local community because of the many triggers to his memories mean that he could not take on position such as a parttime driver or courier. Therefore, his capacity to sustain employment and equally to gain employment in a competitive marketplace is severely limited. This was particularly demonstrated by the fact that he struggled to work in his wife's business when he first went off work." 296 Dr Durrell considered that the plaintiff's prognosis was poor. He did not anticipate any significant level of improvement in his psychopathology in the foreseeable future. There were, he reported, concerning elements that placed the plaintiff at high risk of self-harm, acute relapses and disease progression. These features related to prominent depressive, recurrent "hopelessness" ideation and tendency towards social isolation. Dr Durrell opined that the plaintiff was incapable of performing full-time or part-time work. The instability of his work-related mental infirmities precluded the plaintiff from future possibilities of full-time work. Future options for the plaintiff being fit for casual work, Dr Durrell said, were very limited due to the unpredictable nature of his acute exacerbations. In the report dated 6 November 2009, Dr Durrell wrote that when he first saw the plaintiff on 1 November 2007, the plaintiff had described a wide range of severe PTSD symptoms and depressive symptoms which were partially relieved by Aurorix. Temazepam, a sleeping tablet, provided minimal assistance with his chronic insomnia. Dr Durrell had changed the plaintiff's medication regime to Zoloft which provided greater relief of symptoms than the Aurorix. Short courses of Valium assisted him more than Temazepam. Dr Durrell reported that the progression of the plaintiff's PTSD and depressive condition in the setting of the high dose Zoloft necessitated a further change of medication. Over recent months, the plaintiff had gained some benefits from Cymbalta 60mg daily. The insomnia, Dr Durrell wrote, had responded to low dose Seroquel 25mg daily. Dr Durrell noted that "importantly" at the last consultation on 6 November 2009, the plaintiff "had required inpatient monitoring for cardiac palpitations and hypertensive crisis with BP readings casualty department, of 200/120." Dr Durrell considered this to be "a very poor prognostic sign and marks his likely future need for inpatient treatment and stabilization." He said that "these breakthrough symptoms still occur within the setting of Cymbalta and Seroquel." Dr Durrell, in referring to the "many aspects which indicate a poor prognosis for [the plaintiff]" said this: "[The plaintiff] experiences a number of disabling symptoms secondary to his PTSD and MDD including inclusive traumatic memories and these are triggered by numerous external environmental cues at many sites in the Illawarra Region. Whilst other sufferers may gain a geographical solution by travelling out of the Illawarra [the plaintiff] is limited by his agoraphobic symptoms." 297 During his oral testimony, Dr Durrell said that there would not be a "cure" for the plaintiff. Whilst his treatment of the plaintiff had been effective in containing his symptoms to "a degree", Dr Durrell said that his aim was to continue "to hold the line" and protect his patient from age-related brain changes "that will occur with the ageing process that are most likely to lead to acute relapses." In answer to a question that I asked, Dr Durrell said that a geographic move by the plaintiff "may help the triggering but it certainly wouldn't remove the memories." In cross-examination, Dr Durrell said that the plaintiff had significant anxiety-related symptoms about leaving his house which had improved since Seroquel and Cymbalta had been prescribed. He agreed that with psychiatric care the plaintiff's anxiety had certainly improved. 298 Dr Brown was not as pessimistic about the plaintiff's future as Dr Durrell. She reported that although the plaintiff had not returned to paid employment, the plaintiff is still a relatively young man. Because of his strong work ethic, Dr Brown considered that the plaintiff is likely to be an individual who will ultimately seek a return to at least half-time work in the long-term future. She said that it would not be advisable for him to seek work in an emergency or security type role, however, he was likely to do well in an administrative capacity. Dr Brown reported that the plaintiff's obsessional personality traits "will probably also resurface once his residual symptoms improve further." Dr Brown reported (ex 10 t 1.1 p 16): "Despite the chronicity of his symptoms a number of improvements sound to be slowly occurring and [the plaintiff's] willingness at all stages to be involved in treatment has also probably contributed to a progressive improvement having occurred over time. Because he did not impress as having become excessively invalided or involved in abnormal illness behaviour [the plaintiff] is likely to make good use of treatment strategies and to undergo a more full remission of symptoms, albeit with such improvement probably being likely to take up to a further two year period. The presence of good family and social supports is also likely to have been particularly important in having contributed to his improvement over time." 299 During her oral testimony, Dr Brown expressed the opinion that "three trials of anti-depressant medication over two years is not sufficiently aggressive treatment to assume that [the plaintiff] has no opportunity of further symptom remission, both from depressive symptoms and post-traumatic stress symptoms." She considered that the trialling of a higher dose of Cymbalta or increasing the "very minimal dose of anti-psychotic medication he is receiving, given that he has had a partial response, would be the next obvious step." Dr Brown said that in the plaintiff's situation, a second opinion from a colleague as to other treatment options might be sought and different counselling options considered. In Dr Brown's opinion, there remained treatment opportunities for the plaintiff. On the topic of the plaintiff's prognosis Dr Brown gave the following evidence (T 381 L34-40, T 382 L 1-22): "Q. And do you have a view about prognosis? A. Yes, I don't believe the prognosis is as grim as would currently seem to be evidenced. When I saw Mr Doherty back in July 2008, the impression I had was that the severity of his symptoms did fluctuate but that he was able to be involved in a number of daily activities. It's possible that with the exacerbating effect of being involved in the legal proceedings, that he is currently experiencing a deterioration in his mood state and which will ultimately improve once the legal matter is completed. I also think it would probably benefit him if he were able to return to some type of work, whether it be paid work or voluntary work, in the longer term. Work of some sort would have a positive effect on his self-esteem and confidence. There is also the option that he might choose to move away from the area that he currently lives in and which he associates with reminders of various traumatic exposures. I was in court yesterday when this issue was discussed and I do think that despite the disruption of moving, which anyone would face, and perhaps the unfamiliarity for him, it could be a very positive potential step to induce further remission of symptoms. Q. And further on that, so far as capacity for work is concerned, do you see Mr Doherty as having some capacity for work, if not back in the Police Force? A. At the time I saw him, and I think in the time since, from what I understand about his progress, his symptoms have become worse in the context of the legal claim. But perhaps within the next year or two, Mr Doherty might be able to start to work in a very limited fashion initially so that he gained confidence in his capacity. It might take several years, possibly two or three years, for him to gradually work up to a half-time basis job. He might not go back to a job which was at the level of his previous capacities but nonetheless being a relatively young man still, work is likely to have its own beneficial effects and which would have, in a sense, a positive snowball effect. Q. And would you see him improving past the point of half-time work? A. It's hard to know. It's very difficult to know. From my clinical experience, I have often seen individuals that I thought, well, look, they're never going to get back to work, they're never going to get through this depression, and I am often surprised by how well people do in the longer term. Possibly because they have remained in treatment of some sort and they have been determined to try to effect as much recovery as possible." During cross-examination, Dr Brown conceded that her impression of the plaintiff's condition since she had interviewed him in 2008 was completely dependent on what she had seen in other documents. 300 Dr Brown did not acknowledge that there is a link between PTSD and cardiovascular disease. She related that there are a number of studies being undertaken in this area and there was one study which suggested such a link. She said that "we are going to have to see a number of studies before we can definitely answer the question as to whether there is a link". 301 Professor Tennant, however, considered that "there is a link between PTSD and cardiovascular disease risk". 302 Dr Anderson reported that the plaintiff could not work at all in the position of a crime scene investigator but may later work part-time or casually in work that is not reminiscent of police work, which is less stressful and qualitatively different. 303 Neville Taylor, a vocational psychologist, carried out a vocational assessment of the plaintiff at the request of the defendant's solicitors on 19 May 2008. In a report dated 27 May 2008 Mr Taylor wrote, inter alia, that "from a vocational psychology perspective, it appears as if [the plaintiff's] psychological injuries have had a very deleterious impact on his work capacity" and "[the plaintiff] reports that there has been some improvement in his symptoms. If this improvement continues, he may in the future be able to return to gainful employment." Mr Taylor further reported that "it appears as if [the plaintiff] has made some progression towards being able to return to the workforce." Ms Farrelly was of the view that the plaintiff had become totally incapacitated for work in the police force, "as well as in any other work environment." The plaintiff's prognosis 304 I have found that the plaintiff suffers from PTSD with chronic and severe symptoms and a major depressive disorder. I accept Professor McFarlane's opinion that the plaintiff has a significantly increased risk of exacerbations of his symptoms at times of major life stress and of cardiovascular disease. Although I accept that he will never fully recover from his present condition, I am not persuaded that the plaintiff's future is as bleak as Dr Durrell considers it to be. It is evident that there has been improvement in the plaintiff's condition in recent times. His ability to participate in daily activities includes socialising with family and friends and playing golf. He exhibited during his testimony in the present proceedings good concentration and recollection and gave considered answers to the questions he was asked. I do not accept that he is limited by agoraphobic symptoms such that he cannot distance himself from reminders of traumatic exposures nor am I satisfied that with the aging process he is likely to experience acute relapses. 305 The plaintiff is at a relatively early stage of his psychiatric treatment. Unfortunately, he was not referred to a psychiatrist for treatment until November 2007. It seems to me that Dr Brown's view that there are other available treatments is sensible and ought to be accepted. The present proceedings have undoubtedly been stressful for the plaintiff and Mrs Doherty. I agree with Dr Brown's opinion that their resolution will provide some relief to the plaintiff in his symptoms. He has the strong support of his wife and family. It is my conclusion on the balance of probabilities that there will be a slow but gradual improvement in his condition. I accept Dr Brown's opinion that the plaintiff is likely to make good use of treatment strategies and to progressively improve over time. He is likely, as Dr Brown opines, to progressively return to various social and leisure activities and improvements in these arenas can be anticipated. Nevertheless, I am satisfied that he will not experience a full remission of symptoms. I do not share Dr Brown's optimism that he will in possibly "two or three years" return to part-time work. The slow pace of recovery coupled with significantly increased risk of exacerbation of symptoms at times of major life stress will militate against an early return to part-time work. I agree with Professor McFarlane that the plaintiff's capacity to gain and sustain employment in a competitive market place is severely limited. I am satisfied that he will never return to work as a police officer nor will he be able to undertake full-time work in any other occupation. I find that his residual earning capacity is confined to the chance that his condition will at some time improve so as to enable him to manage a part-time job of about 8 hours per week. I reject the defendant's submission that the plaintiff's residual earning capacity is significant. Non-economic loss 306 The plaintiff submitted that he was entitled to damages for non-economic loss assessed at 40 per cent of a most extreme case pursuant to s 16 Civil Liability Act. The defendant did not agree but did not otherwise identify what it considered an appropriate range for this head of damages might be. The current maximum amount recoverable for non-economic loss under s 16 is $473,500. I do not consider that the plaintiff's non-economic loss to be 40 per cent of a most extreme case. I assess his non-economic loss at 37 per cent of a most extreme case and award damages in the sum of $175,000 under this head. Loss of Wages – the prospects of promotion and retirement age 307 A matter of contention in the plaintiff's claim for wage loss both past and future is the plaintiff's prospects of advancement in the police force. The claim for past wage loss is calculated on the assumption that if he had not been injured, he would have been promoted to the rank of Detective Senior Sergeant Third Year at 1 July 2008. Prior to that time, the plaintiff claims the rate payable to a Detective Sergeant based on the years he had had in that position and adjusted annually. The total claim for past wage loss amounts to $143,843.44. The claim for future wage loss is calculated on the assumption that he would have been promoted to the rank of Inspector on 1 July 2014 and would have retired at the age of 65 from the police force with the rank of Inspector Eighth Year. The total claim for future wage loss amounts to $825,465.73. The defendant disputes the assumptions upon which the plaintiff's claims for past and future wage loss have been founded. The award rates of pay are not in dispute and the arithmetical calculations are agreed. 308 When the plaintiff was medically discharged, his substantive rank was that of Sergeant. He had been promoted to that position in May 2001. I accept that the plaintiff's aspirations for advancement within the police force extended to the rank of Inspector. He successfully completed the pre-qualifying computer based examination (PAQ) at Inspector level pursuant to the 2002 police amended promotion process on 28 August 2002. The plaintiff told me that he had intended to seek promotion to the position of Inspector outside the Wollongong area as promotion was limited at the crime scene section. Police records reveal that on 2 October 2002, he had lodged an expression of interest to attend the Assessment Centre at Middle Manager level (Inspector) but later withdrew without attending. I accept that the plaintiff did not proceed because of his worsening psychological symptoms. During cross-examination, the plaintiff recounted that his 2001 promotion to Sergeant had been appealed by another officer who he believed was now an Inspector. The plaintiff's father was a Chief Inspector and patrol commander at Corrimal when he retired. 309 Inspector Higgins in his statement (ex 23) details the various promotion processes that have applied in the police force since 1997. It is apposite to note that the 2002 amended promotion process was essentially the same as the 1997 process with the additional requirement for officers to have a minimum one-year service at rank before they could apply for promotion to the next higher rank. Officers could only be promoted one rank at a time. Save for transitional arrangements, the 2007 promotion process commenced on 1 January 2007 and remains in place today. 310 The requirements of the 2007 amended promotion process are set out by Inspector Higgins at par 17. Inspector Higgins states at pars 28 and 29: "From the knowledge and experience that I have gained through the positions that I have held with the NSWPF, in my opinion, it is very difficult to predict with any certainty what promotional position the plaintiff would have attained had he remained with the NSWPF as the process for promotion from the level of senior sergeant and above is solely based on merit. This is particularly so in light of the requirements of the 2007 promotion process that I have outlined above. It is very difficult to predict with any certainty whether and to what extent the plaintiff would have satisfied the requirements of the 2007 promotion process." 311 According to Inspector Higgins, under the 2002 amended promotion process, in 2006 there were 59 Senior Sergeant vacancies advertised with 518 applications received. There were 131 Inspector vacancies advertised with 1265 applications received. In 2007, under the 2002 amended promotion process, there were 91 Senior Sergeant vacancies advertised with 750 applications received. There were 91 Inspector vacancies advertised with 879 applications received. The promotional process in the police force is undoubtedly highly competitive. 312 The plaintiff bears the onus of establishing his past and future wage loss. 313 The first step in establishing future economic loss under s 13 Civil Liability Act requires the plaintiff to satisfy the Court of his most likely future circumstances but for the injury. In Amoud v Al Batat [2009] NSWCA 333 Basten JA when considering the operation of s 13 said at [23-24]: "It is clear that the section is not a code, but assumes the continued operation of general law principles. Whether it merely encapsulates, rather than qualifying, the general law, and if the latter to what extent, is less clear. Subsection (1) is formulated as a prohibition on an award of damages for future economic loss, unless its terms are satisfied. The section imposes a burden of proof on the claimant to satisfy the court as to the matters identified in the provision. Those matters are twofold, namely: (a) the claimant's most likely future circumstances but for the injury, and (b) the assumptions about future earning capacity (and other events) which will form the basis of calculation. It appears that sub-s (1) deals only with the baseline earning capacity which might have been achieved but for the injury. Of course, an assessment of post-injury future earning capacity will also be required, but if sub-s (1) were addressing the assumptions necessary for that part of the exercise it would be unlikely to require them to "accord with" the most likely future circumstances but for the injury. The operation of this provision will vary from case to case and will depend in part on the level of particularity or generality at which the exercise is undertaken. Because there is no challenge in the present case to the findings by the trial judge in respect of the most likely future circumstances, or the assessment of future earning capacity, but for the injury, the operation of this provision need not be addressed further." 314 No evidence was adduced for the plaintiff from other police officers (past or present) or anyone else to attest to his service in the police force. Other than his evidence, I am left with what can be derived from his progression in the police force. The career path of the officer who successfully challenged the plaintiff's promotion in 2001 provides no assistance in determining what the plaintiff's most likely future circumstances would have been. There are too many variables in career advancement for any weight to be attached to this evidence. Similarly, the plaintiff's father's rank upon retirement has no relevance other than to provide motivation for his son to aspire to a higher rank. 315 The plaintiff was sworn in as a member of the police force on 21 June 1985. He was promoted to the rank of Senior Constable in June 1994 and to the rank of Detective Sergeant in May 2001. He also relieved in supervisory positions. His steady progression is indicative of a solid but not outstanding police officer. The successful completion of the PQA in 2002 does not demonstrate that he had the qualities required for a merit promotion to the rank of Inspector nor does his ambition. The plaintiff has not discharged the evidentiary burden of establishing under s 13(1) Civil Liability Act that it most likely that he would have attained the higher rank of Inspector but for the injury, nor am I satisfied that it is more probable than not that he would have attained such rank. 316 As to the claim for past loss, the plaintiff's steady career progression, his relief in supervisory roles, his academic achievements and application to work persuade me that it is more likely than not he would on merit have achieved the rank of Detective Senior Sergeant Third Year by 1 July 2008, but for the injury. 317 There is no dispute that he has been unable to work until the present time. I am satisfied that he has been incapable of performing full-time or part-time work. Accordingly, I propose to award damages for past wage loss in accordance with the plaintiff's claim. The arithmetic has been adjusted to accord with the date of judgment. 318 As to the claim for future wage loss, I am satisfied that it is most likely that the plaintiff would have continued in the rank of Detective Senior Sergeant until his retirement from the police force. 319 Another matter of contention is that of the age of retirement. In the schedule of damages, the plaintiff's future wage loss is calculated upon retirement from the police force at the age of 65. In his witness statement (ex A) the plaintiff states that if he had not been medically discharged from the police force, he had hoped to work as a police officer until at least age 60, and possibly would have done some other work upon retirement from the police force, until perhaps age 70. During cross-examination on this topic, the plaintiff gave the following evidence (T215 L 34-50; T 216 L1): "Q. You have told us that you intended to finish up with the police at retirement age which you have postulated was probably aged 60? A. Yeah or a similar age, yes. I am not sure whether it would have been-- Q. Once you retired you would have then proceeded on some retirement pension from the Police Service? A. That would be right, sir, yes. Q. Not ungenerous? A. No, it was quite a reasonable pension, yes. Q. You would have expected then after aged 60 not to do any more work; is that right? A. Oh, I can't comment on that. That would be a decision I would have made whatever my situation was at that age, sir. I couldn't comment on it now fairly. Q. Equally you can't suggest then that you would have worked past age 60? A. Exactly, yes." 320 Mr Doherty submitted that the plaintiff would probably, in all the circumstances, retire from the police force in the vicinity of 60 years of age and thereafter, like his father, would have obtained other employment. He put to me that the plaintiff may well have chosen to work in some other enterprise to the age of 65. 321 In the absence of specific evidence, it is usually appropriate to calculate future wage loss to the age upon which a person is "entitled by law to retire and receive an Australian pension": Baldwin v Lisicic [1993] NSWCA 18. The present law is that the pensionable age is 67 years for a male born after 1 January 1957: s 23 (5A) Social Security Act 1991 (Cth). As the plaintiff was born after that date his qualifying age for the age pension is 67 years. 322 Assistant Commissioner Jenkins had been asked by the defendant to provide current statistics on the average retirement age of police officers. His research revealed that in the three years to 22 November 2009, 75 police officers retired, with an average and median age of 58. One officer retired from the FSG in this period at the age of 60. 323 In this case there is specific evidence from the plaintiff that upon retirement from the police force at age 60 years, he would be entitled to a police service pension. I conclude that it is most likely that he would not have continued in the police force beyond 60 years of age and would have retired at age 60 but for the injury. The plaintiff was equivocal as to whether he would seek paid work after retirement. Upon retirement he was entitled to a police service pension which he considered to be quite reasonable. In all the circumstances, I am not satisfied that it is most likely that he would have chosen to work after retirement in some enterprise but for the injury: s 13(1) Civil Liability Act. Past wage loss 324 I award damages for past wage loss as follows: (i) 2.11.2007 – 31.12.2007 calculated at the rate payable to Detective Sergeant 6 th year of $89,764.00 gross or $1,283.00 net per week. $1,283.00 x 8 weeks $10,264.00 (ii) 1.1.08 – 30.6.08 calculated at the rate payable to Detective Sergeant 6 th year of $91,560.00 gross per annum or $1,304.00 net per week. $1,304.00 x 26 weeks $33,904.00 (iii) 1.7.08 – 31.12.08 calculated at the rate payable to Detective Senior Sergeant 3 rd year of $95,360.00 gross per annum or $1,358.00 net per week. $1,358.00 x 26 weeks $35,308.00 (iv) 1.1.09 – 31.12.09 calculated at the rate payable to Detective Senior Sergeant 3 rd year of $97,267.00 gross per annum or $1,369.52 net per week. $1,369.52 x 52 weeks $71,215.04 (v) 1.1.2010 – 20.5.2010 calculated at the rate payable to Detective Senior Sergeant 4 th year of $100,214.00 gross per annum or $1,404.00 net per week. $1,404 x 20 weeks $28,080.00 Total $178,771.04 Future Wage loss 325 There is nothing in the material which has been presented to me which indicates that the annual salary for a Detective Senior Sergeant increases after the fourth year of service in that rank. In fact, the plaintiff's calculations in the schedule of damages for future wage loss until 30 June 2014 were founded upon the annual salary of a Detective Senior Sergeant 4th year. Accordingly, the plaintiff's baseline earning capacity which would have been achieved but for the injury is that of a Detective Senior Sergeant 4th year earning $100,214.00 gross per annum or $1,404.00 net per week until retirement at the age of 60 years. My assessment of his post-injury future earning capacity is, as I have found, the chance that he will at some future time be able to work part-time for about 8 hours per week. I have considered increasing the conventional allowance of 15 per cent for vicissitudes for such a contingency but it seems to me, that the chance of future part-time work is offset equally by the chance that the plaintiff would have obtained part-time work upon retirement from the police force or have been promoted to the rank of Inspector but for the injury. I calculate future wage loss as follows: $1,404.00 net per week multiplier 13 years on 5 per cent Tables 502.3 Less 15 per cent for vicissitudes $599,449.00 Past loss of superannuation benefits 326 The plaintiff's claim for past loss of superannuation benefits is calculated on the basis of 9 per cent of gross earnings. I award damages for past superannuation loss as follows: (i) 2.11.2007-31.12.2007 calculated at 9 per cent of gross weekly loss of earnings of $1,726.23 $1,726.23 x 9 per cent x 8 weeks $1,242.89 (ii) 1.1.08 – 30.6.08 calculated at 9 per cent of gross weekly loss of earnings of $1,760.76 $1,760.76 x 9 per cent x 26 $4,120.18 (iii) 1.7.08 – 31.12.08 calculated 9 per cent of gross weekly loss of earnings of $1,833.84 $1,833.84 x 9 per cent x 26 weeks $4,291.19 (iv) 1.1.09 – 31.12.09 calculated at 9 per cent of gross weekly loss of earnings of $1,870.52 per week. $1,870.52 x 9 per cent x 52 weeks $8,754.05 (v) 1.1.2010 – 20.5.2010 calculated at 9 per cent of gross weekly loss of earnings of $1,927.19 per week $1,927.19 x 9 per week x 20 weeks $3,468.94 Total $21,877.25 Future loss of superannuation benefits 327 Consistent with his claim for future wage loss, the plaintiff's claim under this head of damage was calculated upon promotion to the rank of Inspector and retirement at age 65 years which I have not accepted. Accordingly, I award damages for future loss of superannuation benefits calculated as follows: 21.5.2010 until age 60 years (13 years) (round figures) calculated at 9 per cent of the gross weekly future wage of Detective Senior Sergeant 4th year of $1,927.19 x 9 per cent = $173.45 Multiplier 13 years on 5 per cent Tables 502.3 less 15 per cent for vicissitudes $74,055.35 Past treatment expenses 328 The plaintiff's claim for past treatment expenses is as follows: (i) NSW Police Hurt on Duty Unit: $6,955.15 (ii) Allianz Australia Insurance Limited: $8,066.00 Total $15,021.15 329 There is no real dispute about these expenses having been necessarily incurred and there is agreement as to the arithmetic. I propose to allow the amount of $15,021.15 for past treatment expenses. Future treatment expenses 330 The plaintiff's claim in the amount of $157,882.92 for future treatment and medication is particularised in the schedule of damages as follows: (a) Consultations with Consultant Psychiatrist at the rate of $260 per consultation for 30 sessions per year for 10 years $150 per week . Multiplier for 10 years on 5 per cent tables 412.9 $150 x 412.9 $61,935.00 (b) Consultations with General Practitioner 4 times per annum for the remainder of the plaintiff's lifetime at a cost of $50 per consultation $3.85 per week. Life expectancy 39 years on 5 per cent Tables 909.9 $3.85 x 909.9 $3,503.12 (c) Inpatient treatment programs for PTSD and inpatient admissions for acute chronic relapses. Allow cushion $50,000.00. (d) Medication costs for remainder of the plaintiff's lifetime at $10 per week. Multiplier 39 years on 5 per cent Tables 909.9 $10 x 909.9 $9,099.00 (e) Psychotherapy by qualified psychologist at $140 per session for 30 sessions per annum for 10 years $80.76 per week. Multiplier 10 years on 5 per cent Tables = 412.9 $33,345.80. 331 The defendant disputes the claim under this head of damages but agrees as to the arithmetic. 332 Much of the plaintiff's claim is founded upon the opinions of Dr Durrell. He was of the opinion that the plaintiff's future treatment would require sessions with a psychiatrist in the order of 20-30 per year ($350 per session) for 5-10 years and depending on future rates of deterioration, this may need upward adjustment. He considered that psychotherapy adjustment as prescribed by the supervising psychiatrist may be carried out by a suitably qualified psychologist ($100-$140 per session), with 20-30 sessions per annum for 5-10 years with a view of continuation depending on response. Dr Durrell reported that it would be prudent to factor in 5-8 inpatient admissions of 14-21 days over the plaintiff's lifespan to manage the risk of acute chronic relapses. Costing would be $1,000-$1,200 daily dependent on treatment needs. Inpatient treatment programs for PTSD were, he said, in the order of $20,000-$30,000. Dr Durrell considered that such programs would be of benefit to the plaintiff and his participation in one of these programs every 3-5 years would be appropriate. He also recommended family counselling sessions but no claim is made in this regard by the plaintiff. 333 Professor McFarlane considered that the plaintiff's ongoing psychological treatment should focus on providing psychological support and assistance in dealing with environments that he finds difficult. He would also need the regular treatment and supervision provided by his general practitioner, with whom he has a good relationship. Professor McFarlane anticipated that the cost of his psychological care per annum was likely to be in the order of $3,000. Professor McFarlane considered that the plaintiff could benefit from a PTSD Treatment Program provided by the St Johns of God Hospital which provides both individual and group treatment for police officers. There is no material before me of what it might cost the plaintiff to attend this program. 334 Dr Brown was critical of Dr Durrell's outline of future treatment. Given that the plaintiff had not undergone "significant remission of symptoms over time", Dr Durrell's recommendations, Dr Brown reported, for further extensive psychiatric and psychological counselling would not be warranted. Moreover, given that the plaintiff had not previously required an inpatient admission related to his PTSD and depressive conditions, Dr Brown considered that it was unlikely that he would need treatment of this type in the long term. Dr Brown opined that rather than providing further extensive counselling which was unlikely to offer additional benefit, attention to his psychotropic medication regime may prove to be a far more effective intervention. More aggressive pharmacological treatment was yet to be tried. 335 Although I have paid particular heed to the views of Dr Durrell as the plaintiff's treating specialist, it has not been difficult to conclude that some of his recommendations for future treatment are unreasonable. His over enthusiasm for his patient's future needs is readily demonstrated by his recommendation for 5-10 family sessions ($250 per session) for up to 10 years even though the plaintiff is happily married and supported by his family. The plaintiff sensibly does not claim such an allowance. As to the recommendation for psychotherapy intervention, Dr Durrell explained that it would be an advantage that the plaintiff form "a therapeutic relationship" with somebody else which would be of importance when he was unavailable. The 20-30 consultations recommended for such psychotherapy intervention are in addition to the 20-30 recommended psychiatric consultations. I agree with Dr Brown that such extensive psychiatric and psychological counselling is unwarranted. I do not propose to allow the claim for psychotherapy intervention. 336 The plaintiff undoubtedly requires regular ongoing psychiatric consultations particularly if new treatments are trialled. I propose to allow 20 sessions per annum for the next 10 years. 337 The claims for general practitioner consultations and medication costs are to my mind reasonable. As to the cushion claimed for inpatient treatment it is true that the plaintiff has not previously required inpatient treatment but I have accepted Professor McFarlane's opinion of a significantly increased risk of exacerbation of symptoms and of cardiovascular disease. The plaintiff did require inpatient monitoring for cardiac palpitations last November. I, however, have not accepted Dr Durrell's opinion that the plaintiff is likely to experience acute relapses due to aging process. I propose to allow a cushion in the sum of $30,000 for inpatient admissions. 338 I award damages under this head as follows: (i) Consultations with consultant psychiatrist at the rate of $260 per consultation for 20 sessions per year for 10 years $100 per week. Multiplier for 10 years on 5 per cent tables 412.9 $100 x 412.9 $41,290.00 (ii) Consultations with General Practitioner as particularised by plaintiff $3,503.12 (iii) Inpatient admission for acute chronic relapses. Allow cushion $30,000.00 (iv) Medication costs as particularised by plaintiff $9,099.00 Total $83,892.12 Interest 339 Although not mentioned in the schedule of damages the plaintiff is entitled to interest on his past loss of wages for 2.6 years (round figures) at the average rate prescribed by s 18 Civil Liability Act of 5.7 per cent. On $178,771.04 that amounts to $10,189.95. 340 The plaintiff is also entitled to interest on past loss of superannuation on the same basis. On $21,877.25 that amounts to $1,247.00. Total $11,436.95 Summary as to damages 341 The chart below summarises the damages that have been awarded: Non-Economic Loss $175,000.00 Past Wage Loss $178,771.04 Future Wage Loss $599,449.00 Past loss of Superannuation Benefits $21,877.25 Future loss of Superannuation Benefits $74,055.35 Past out of pocket expenses $15,021.15 Future treatment expenses $83,892.12 Interest $11,436.95 Total $1,159,502.86 342 The damages are reduced by thirty five per cent by reason of the plaintiff's contributory negligence. Orders 1. Order that the limitation period within which the plaintiff was entitled to commence these proceedings be extended up to and including 13 March 2008. 2. Verdict and Judgment for the plaintiff in the sum of $753,676.85. 3. I shall hear the parties on the question of costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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