Grose v Commissioner of Police (No 3) [2013] NSWDC 42

District Court New South Wales

Medium Neutral Citation: Grose v Commissioner of Police (No 3) [2013] NSWDC 42 Hearing dates: 12 February 2013 Decision date: 12 February 2013 Before: Neilson DCJ Decision: I set aside the decision of the Commission of Police dated 14 July 2011 and I determine that the suffering by the plaintiff of the infirmity of "chronic post-traumatic stress disorder" was caused by his having been hurt on duty The deemed date of injury is 28 April 2010 I order the defendant to pay the plaintiff's costs Catchwords: Police - Hurt on duty - PSAC certified that former sergeant of police suffered from osteoarthritis of his right knee and chronic post-traumatic stress disorder - Commissioner of Police accepted osteoarthritis caused by HOD but certified PTSD not caused by HOD - Plaintiff aggrieved by latter decision - Whether Commissioner's decision supported by evidence Legislation Cited: Police Regulation (Superannuation) Act 1906, s 21 Category: Principal judgment Parties: Brett Andrew Grose (Plaintiff) Commissioner of Police (Defendant) Representation: Mr T Ower (Plaintiff) Mr M Hutchings (Defendant) Oates Legal (Plaintiff) McCabes (Defendant) File Number(s): RJ354/11

Judgment 1The plaintiff, Mr Brett Andrew Grose, is a former sergeant of police. He was attested as a probationary constable of police 19 December 1986 and thereupon became a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906 (the Act). 2On 30 June 2011 the Police Superannuation Advisory Committee (PSAC) established under the Act determined that the plaintiff was incapable of discharging the duties of his office on account of osteoarthritis of his right knee and chronic post-traumatic stress disorder. The Commissioner of Police accepted that the infirmity of osteoarthritis of the right knee was caused by the plaintiff's having been hurt on duty. However, on 14 July 2011 the Commissioner of Police determined that the suffering by the plaintiff of "chronic post-traumatic stress disorder" was not caused by his having been hurt on duty. Aggrieved by that decision of the defendant, the plaintiff brings this application pursuant to s 21 of the Act. 3The issue tendered for my determination is whether the plaintiff's suffering of chronic post-traumatic stress disorder, or as I shall refer to it PTSD, was caused by the plaintiff's having been hurt on duty. This is the second judgment I have given today in this matter. The first concerned a defence raised in par 35 of the defendant's defence and concerning the admissibility of a report of Dr Graham Vickery of 16 June 2011. I held that the defendant was unable to litigate in this Court whether the plaintiff was suffering PTSD as certified by PSAC and I rejected the tender of the report of Dr Vickery on the basis that it was irrelevant in these proceedings. Dr Vickery was of the opinion that the plaintiff did not suffer from PTSD or any other psychiatric condition and that he was not incapable of discharging duties of his office on account of his psychiatric condition. The case then proceeded in a "normal" fashion, albeit that the plaintiff's evidence-in-chief was given by way of affidavit and he was not required for cross-examination by Mr Hutchings, who appears for the defendant. 4The plaintiff tendered medical evidence and closed his case. The defendant offered no evidence and Mr Hutchings could not put forward any submission to suggest why the plaintiff should not be successful in his application. Strictly speaking, it is not necessary for me to give any reasons for judgment in those circumstances, since the defendant put no submission to me as to why the plaintiff should not succeed. However, I should briefly state the nature of the case. 5The plaintiff was born on 17 March 1966. On such an auspicious day one might believe that his parents would give him the middle name of Patrick but they chose instead to give him the middle name of the Patron Saint of Scotland. He joined the New South Wales Police Force as a probationary constable on 19 December 1986. He was stationed at Lithgow for one year. Shortly after his attestation he attended the scene of a collision between a seven year old boy and an XPT train in the Blue Mountains. He was chosen by his supervising sergeant to attend that scene in order to "gain experience". He was required to collect the body parts of the unfortunate boy, including brain matter, which clearly would have been widespread over the accident scene and was then required to take all of the body parts to the morgue for processing. 6In 1987 he was called to a fatal pedestrian accident. He was required to perform cardio-pulmonary resuscitation on the victim. That victim was an old friend with whom the plaintiff had shared a flat prior to joining the police force. The plaintiff realised that the person who he was trying to resuscitate was in fact wearing a pair of socks that the victim had borrowed once in the past from the plaintiff himself. One could understand that being extremely upsetting. 7The plaintiff went to Nowra in either late 1987 or early 1988. He appears to have spent the rest of his working career in the Police Force in the Illawarra region, working either at Nowra or in the Lake Illawarra Local Area Command or at Warilla Police Station. In addition he was, at times, a member of the State Protection Support Unit (SPSU) since 1997 and also worked in the Water Police from 1995 to 2000. 8In 1992 and 1993 the plaintiff was called to attend three cot deaths within an eighteen-month period. He was also required to attend at the post mortem examination of the children's bodies and to assist the doctor and his wardsmen to take toxicology samples from the bodies of the children. The plaintiff found that work saddening and draining and, as could easily be imagined, parents of the children were inconsolable. 9In 1993 the plaintiff was the first at the scene of an attempted suicide. The person in question had, in fact, merely blown off his jaw and most of his face with a shotgun but had not been successful in taking his own life. When the plaintiff reached the person he found that his finger was still on the trigger of the shotgun and was twitching and convulsing. With the help of other members of the Police Force, who arrived on the scene after the plaintiff did, he was able to tie the person down onto a litter and transport him to the main road, no doubt to be collected by an ambulance. The plaintiff said that he was horrified by the nature of the injuries which the person had sustained. 10In 1996 the plaintiff attended at the scene of a break and enter in Kinghorne Street, Nowra. The offender was found to be leaving a camping store armed with a bayonet in one hand and a knife in the other. The offender had gained access to the camping store by smashing a plate glass window. In coming back out through the plate glass window the offender managed to cut himself and as he was approaching the plaintiff he was sucking blood from his arm and spitting it in the direction of the plaintiff. The plaintiff drew his revolver but fortunately did not need to pull the trigger because the offender stopped short of him. There was then a "prolonged standoff" until the offender was subdued. 11In 1997 the plaintiff was one of a number of members of the police force who attended at the Thredbo landslide disaster. His job was to assist in the recovery of bodies and the identification of victims. The plaintiff, in his affidavit, described the smell at the scene as being so bad that he and other members of the police force rubbed Vicks Vapour Rub underneath their noses. The plaintiff felt overwhelmed by both fatigue and feelings of helplessness, as well as anger about a lack of supplies and warm clothing. Following upon that disaster the plaintiff, with others, underwent a "group debriefing" mediated by Inspector Jennifer Lette, who was the police psychologist. 12On 20 December 1999 the plaintiff attended a lookout in Nowra where a man was threatening to jump off the edge of a cliff. There was a prolonged struggle in which the plaintiff successfully managed to stop the would-be suicide from committing that act. He and another officer restrained the person who had intended to jump. However, during the struggle the plaintiff himself felt that he was in extreme danger of himself going over the cliff. 13On 22 February 2000 the plaintiff attended a domestic dispute at Culburra where a man was holding a baby as a hostage. The plaintiff negotiated with that offender for over 90 minutes before finally convincing him to let the baby go. The plaintiff then rushed the offender but was bitten by him on the arm. The plaintiff was concerned about infection and needed to undergo a series of inoculations against the hepatitis virus. 14In 2001 as part of his work with the SPSU the plaintiff attended a siege at Dapto. The plaintiff was at the scene for some 10 hours. In an effort to distract the offender the plaintiff and a fellow officer decided to focus light sources on their rifles on the offender. That caused the offender to spin towards the plaintiff and fire his .375 silver Magnum directly at the plaintiff. The bullet narrowly missed the plaintiff's head. During the rest of his time at the siege several further shots were fired in his direction. He found that particularly frightening and at times broke into a cold sweat and noticed a tremor in his legs. 15In 2002 the plaintiff attend a fatal accident at the Princes Highway at Bomaderry. The victim was a four year old girl. The plaintiff knew the family of the victim and in fact the plaintiff's mother had minded the child at times at pre-school. The plaintiff's experiences left him feeling numb and left him unable to console the family of the deceased child. He was referred to the Employees Assistance Branch and again had some counselling from Inspector Lette. 16In the Water Police in 2004 the plaintiff was called upon to recover the body of a spear-fisherman at Bendalong. The body of a spear-fisherman had been decapitated and there was a piece of boat propeller left in the skull of the victim. It was necessary to transport the body in a body bag in a vessel from Bendalong to Sussex Inlet. The body bag leaked a large amount of blood and also brain matter was rolling around inside the bag. During the voyage to Sussex Inlet the plaintiff and his partner were up to the ankles in blood in the vessel. There were also a large number of flies that swarmed around them as soon as they stopped pouring buckets of water over the body bag. The scene was so severe that the plaintiff's partner became emotional and was tearful. The plaintiff himself said he found that experience distressing and he felt both numb and depressed. 17In the same year the plaintiff supervised the recovery of a body of a teenager who had hung himself from the Telstra tower in Nowra. The plaintiff was required to restrain the teenager's mother, who had become hysterical. 18Although at this stage the plaintiff was only a senior constable, he had been working as an acting sergeant since the year 2000. The inference to be drawn is at the time of the recovery of the body and the teenager who had hung himself the plaintiff was in fact an acting sergeant and on-duty supervisor of the crime scene. 19In 2007 the plaintiff was confronted by a man wearing a motorcycle helmet who was holding a knife and also a baby. That offender charged at the plaintiff wielding his knife, which only narrowly missed the plaintiff's body. The plaintiff said that he "got the shakes" after that incident. The inference to be drawn is that this tremor was caused by fear and alarm for his own safety. 20On 14 April 2008 the plaintiff was involved in breaking-up a brawl involving eight people. That brawl was outside licensed premises and according to the plaintiff's affidavit was "watched by about 60 people coming out of the pub." The plaintiff had to deal with a large offender who appears to have been the instigator or main protagonist in the brawl. The plaintiff was in company with a probationary constable who did not assist him. The plaintiff felt unsupported and very vulnerable to physical assault. In other words, he feared for his own safety. 21The plaintiff was formally appointed a sergeant of police in 2008. In September of 2009 he attended a critical incident where an offender was smashing up a house and a car with a shovel. The plaintiff challenged that offender with a Taser. The offender threw the shovel away and was then tackled by his brother as the plaintiff and other officers converged on the offender. The tackle of the offender's brother broke the offender's arm. The plaintiff then shielded the offender with his body as the brother of the offender continued to throw punches at him. The inference to be drawn from the evidence is that the offender in question was probably smashing up the house and car of his brother, who, in retaliation, sought to assault him. 22However, it was later alleged, falsely, that the plaintiff had in fact broken the offender's arm. He was recalled to duty and was required to drive 75 km to Wollongong to be interviewed. The interview was a lengthy one. The plaintiff referred to it as "interrogation". However, no charge was ever laid against the plaintiff and the plaintiff appears to believe that he was unfairly targeted, although there is no direct evidence to that effect. Probably, based on experience of hearing so many matters of this nature, the plaintiff felt unsupported by his peers and the Police Force. Unfortunately, if the peers do support a policeman in the plaintiff's position there will be allegations made of favouritism or corruption. 23Shortly after midnight on New Year's Day 2010, there was an incident which brought the plaintiff, who was off duty, into contact with his colleagues who were on duty. The plaintiff was attending a barbecue at his mother's home. Also present were members of his extended family, including his brother-in-law Beau. At one stage police stopped nearby to conduct random breath testing. In a history recorded by Dr Klug, the plaintiff described Beau as going on a "nude run" but in the process of doing that he managed to bare his posterior at the police vehicle, which was near the plaintiff's mother's house. This exposure is usually referred to as a "brown eye". The police who were the spectators of this display obviously took offence. There was then interaction between the police and Beau in which the police threatened to use OC spray to "subdue him". The plaintiff thought that there was over-reaction by his colleagues and intervened. Essentially the plaintiff was then charged by way of Court Attendance Notice with resisting police. However, I note that although he was convicted in the Local Court, perhaps by Magistrate Fleming at Nowra, he successfully appealed to one of my colleagues who held that the police had exceeded their powers and quashed the conviction. This, in the grand scheme of the traumata to which the plaintiff has been exposed, is of little moment. 24In March 2010 at Kiama the plaintiff was involved in a search for a suicidal man who had sexually abused his stepdaughter. After three hours of searching, the person, the subject of the search, was found hanging from a fig tree in a nearby area. In his affidavit the plaintiff said: "I felt overwhelmed by disturbing flashbacks of previous hangings and suicide attempts I attended while I was searching with my spotlight and torch. I have had recurring nightmares of suicides ever since." 25In April 2010 the plaintiff was carrying out mobile supervisory duties when there was a police radio call for a stolen car that had been spotted and was being pursued by police. The plaintiff became involved and when travelling over the crest of a road only narrowly missed being hit by the stolen vehicle which clearly was being driven in the opposite direction and probably in the middle or too close to the middle of road. The plaintiff says in his affidavit that he was unable to make decisions or think clearly for the rest of that shift. What played on his mind was a recent death of four people who had been killed as a result of a police pursuit at Queanbeyan that had happened only a fortnight earlier and probably was attended by the usual, hysterical journalism. Following upon this incident the plaintiff said that he had vivid flashbacks and nightmares about fatal accidents that he had witnessed during his earlier career. 26In April 2010 the plaintiff was flagged down at Shellharbour by a taxi driver who reported that there was a drunken man jumping in front of cars. A second taxi driver pulled up and said that his passenger was not welcome in his taxi. The plaintiff ordered that passenger out of the second taxi and told that passenger to move along. The ejected passenger walked up to the plaintiff with his hand held behind his back and began bumping into the plaintiff. He then took off his shirt. This person was heavily tattooed. He told the plaintiff that he was a member of an outlaw motorcycle gang. A scuffle then took place and the plaintiff moved this person from the roadway. He radioed to seek assistance but was told that the nearest parol car was some twenty minutes away. The plaintiff was working by himself and he felt extremely vulnerable. Again this caused him to remember or recall earlier events where his life was endangered, in his mind. His affidavit continues thus: "Back at the station when completing my COPS report, the offender's history revealed his assault of another officer at the same location with serious injuries being inflicted on the officer. When reading this, I was unable to complete my report. I had a sickening and nauseating feeling about what could have happened." 27The plaintiff then went on long service leave. Towards the end of his long service leave he was feeling no better emotionally and went to see his general practitioner Dr Michael Browne at North Nowra. Dr Browne confirms that he saw the plaintiff on 30 June 2010. He thought that the plaintiff had both anxiety and depression and his impression at that time was the plaintiff was suffering from PTSD. He arranged for the plaintiff to be reviewed by a clinical psychologist to confirm the diagnosis of PTSD. 28Besides the opinion of Dr Browne, the only other medical evidence before me are reports from Dr Peter Klug, a forensic psychiatrist. Dr Klug saw the plaintiff on 27 and 30 September 2010 and generated two reports, each bearing date 1 October 2010. He reviewed the plaintiff on 27 November 2012 and generated a report bearing date 21 January 2013. 29The history recorded by Dr Klug is consistent with the facts that I have sought to briefly outline. Under the heading "Personal History" the plaintiff's family background is outlined and it is clear that there was no history or exposure to violence or abuse in childhood, no family history of any psychiatric disorder and nothing to suggest that the plaintiff was in any way suffering from what might be described as an eggshell psyche. The plaintiff himself has been happily married for 17 years and has two children who, when Dr Klug first examined the plaintiff, were aged 15 and 12 and would now be aged 17 and 14. Dr Klug was of the opinion at that stage that the plaintiff was suffering from chronic PTSD including increasing depressive symptomatology. He said this: "It is clear that his chronic post-traumatic stress disorder bears a close temporal and clinical relationship to his exposure to cumulative traumatic incidents, his symptoms becoming overt from about September 2009. His prognosis with appropriate treatment is at best fair, rather than good or very good. I believe he is incapable, as a consequence of his psychiatric illness, of continuing to discharge his duties as a police officer in either a fully operational role or a restricted role." 30Following upon his more recent examination, Dr Klug again expressed the view that the plaintiff's chronic PTSD was caused by the cumulative work-related stresses that the doctor noted from the statement of claim which had been sent to him. The doctor also pointed out that in his view they had been a substantial cause of the plaintiff's psychiatric condition of chronic PTSD. No doubt the doctor meant by that to satisfy the requirement that the employment be a substantial contributing factor to the certified infirmity. 31That being the only evidence as to the causation of the plaintiff's certified infirmity, it follows that his application must be successful. For those reason I set aside the decision of the Commission of Police dated 14 July 2011 and I determine that the suffering by the plaintiff of the infirmity of "chronic post-traumatic stress disorder" was caused by his having been hurt on duty.