Administrative Decisions Tribunal
New South Wales

Medium Neutral Citation:

Whitfield v State of NSW (NSW Police Force) [2011] NSWADT 265

Hearing dates:

22 and 23 August 2011

Decision date:

15 November 2011

Jurisdiction:

Equal Opportunity Division

Before:

Magistrate N Hennessy,
Dr J Schneeweiss
Mr M Nasir

Decision:

(1)The applicant's complaint of age discrimination is substantiated.

(2)The respondent is to pay the applicant $10,000 in damages.

Catchwords:

DISCRIMINATION - age discrimination in the provision of services - characteristics of age - whether police providing services to alleged perpetrator - causation -

Legislation Cited:

Anti-Discrimination Act 1977
Police Act 1990

Cases Cited:

Commissioner of Police v Mohamed [2009] NSWCA 432
Waters v Public Transport Corporation [1992] HCA 49; 173 CLR 349
Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 475
IW v City of Perth [1997] HCA 30; 191 CLR 1
Farah v Commissioner of Police of the Metropolis [1997] 1 All ER 289
Gichura v Home Office [2008] EWCA Civ 697
Savjani v IRC [1981] QB 458
Hall v Sheiban Pty Ltd [1989] FCA 72; [1988-89] 85 ALR 503 at [73];
Haines v Bendall [1991] HCA 15; (1990) 172 CLR 60

Category:

Principal judgment

Parties:

Keith Whitfield (Applicant)
State of NSW (NSW Police Force) (Respondent)

Representation:

Counsel
N Poynder (Applicant)
M Seck (Respondent)
Legal Aid Commission (Applicant)
Henry Davis York, Lawyers (Respondent)

File Number(s):

101068

REasons for decision

Introduction

1Mr Whitfield complains that the NSW Police Force has discriminated against him on the ground of his age in breach of the Anti-Discrimination Act 1977 ( AD Act ). The complaint concerns a single incident which occurred in 2008. A Computerised Operational Policing System (COPS) entry prepared by Constable Lobb following the incident records the date as being 29 September 2008. Constable Lobb knocked on Mr Whitfield's door following complaints from neighbours. Mr Whitfield was living with Mrs 't Hart, who owned the unit. They had been arguing in recent weeks over money and possessions.

2According to Mr Whitfield, Constable Lobb demanded that he pack a bag and get out of the unit. Mr Whitfield says that he had done nothing wrong and was extremely upset by the police officer's demands. He left the unit that night. Constable Lobb's version is that Mrs 't Hart wanted Mr Whitfield to leave and that Mr Whitfield was abusing both her and the neighbours. Constable Lobb says that Mr Whitfield agreed to leave when he suggested that his arrangement with Mrs 't Hart was not working.

3The issue in these proceedings is whether the NSW Police Force, through the actions of Constable Lobb, has discriminated against Mr Whitfield on the ground of his age by refusing to provide him with a service or in the terms on which he was provided with a service: AD Act , s 49ZYN. Mr Whitfield is 89 years old.

4Mr Whitfield's lawyer, Mr Poynder, invoked the so-called "characteristics extension" to the ground of age discrimination. A service provider will discriminate against a person not only if the treatment is on the ground of the person's age, but if the treatment is on the ground of a characteristic that appertains generally to persons who are of that age or age group: s 49ZYA(2). The characteristic in this case was said to be that people of Mr Whitfield's age or age group are generally less physically able to offer resistance to a police officer and more likely to comply with the sort of direction given by Constable Lobb.

5Mr Seck, on behalf of the NSW Police Force, submitted that Constable Lobb was not providing Mr Whitfield with a service, did not refuse a service or provide it on less favourable terms and did not treat Mr Whitfield any differently from the way he would have treated a younger person. He also submitted that the treatment had no connection with Mr Whitfield's age or a characteristic of older people.

Relevant provisions

6Section 49ZYN makes discrimination on the ground of age unlawful in relation to the provision of services:

49ZYN Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of age:

(a) by refusing to provide the other person with those goods or services, or

(b) in the terms on which the other person is provided with those goods or services.

7Discrimination is defined in s 49ZYA. Mr Whitfield relied on direct discrimination as defined in s 49ZYA(1)(a). At least one of the reasons for the conduct must be the person's age and/or a characteristic that generally appertains to people of his age, even if that reason was not the dominant or a substantial reason for the treatment: AD Act , s 4A. The so-called "characteristics extension" is defined in s 49ZYA(2).

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of age if, on the ground of the aggrieved person's age or the age of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's age if it is done on the ground of the person's age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.

8The NSW Police Force did not rely on any exception or defence.

Factual and legal issues

9The factual and legal issues in dispute are:

(1)What did Constable Lobb say to Mr Whitfield? In particular, did he merely suggest that Mr Whitfield should find alternative accommodation - a suggestion to which Mr Whitfield agreed - or did he demand that Mr Whitfield leave the unit against his will?

(2)What services was Constable Lobb providing or refusing to provide?

(3)Does Constable Lobb's conduct in relation to Mr Whitfield amount to the refusal of a service or the provision of a service on certain terms?

(4)If so, in the same or similar circumstances, would Constable Lobb have treated a person of a different age or age group (or a person who did not have a characteristic of older people) more favourably than he treated Mr Whitfield?

(5)If so, was at least one of the reasons for the way Constable Lobb treated Mr Whitfield his age or a characteristic of people of his age or age group?

(6)If the complaint is substantiated, did Mr Whitfield suffer any loss or damage as a result of Constable Lobb's conduct and is so, should he be compensated for that loss?

Living arrangements and disputes

10Mr Whitfield receives a pension from the Department of Veterans' Affairs. He lived in a unit owned by Mrs 't Hart, a 91 year old woman, from February 2003 to September 2008. Mr Whitfield received a carer's allowance for Mrs 't Hart from 2005. Their arrangement appears to have been one of companionship and financial convenience. They were not in a de facto relationship.

11The background to the incident is that in about August 2008, Mrs 't Hart decided that she was going to live with one of her daughters in another town. For some years there had been disagreements between Mr Whitfield and Ms 't Hart over financial matters including who owned various pieces of furniture and other possessions and what would be left behind if Mrs 't Hart moved out. Mr Whitfield says that after Mrs 't Hart told him that she was moving out, they argued about those issues and Mrs 't Hart threatened to take all his possessions and leave him with nothing. Mrs 't Hart's version is that Mr Whitfield was insisting that she should give him some money when she moved out of the unit. Mr Whitfield denies demanding money but says that Mrs 't Hart had promised to give him $10,000 when she moved out.

12There is no need to make findings about the precise content of these discussions. It suffices to note that there was an ongoing dispute about Mr Whitfield's entitlement to money and possessions which escalated when Mrs 't Hart told him that she was moving out. Mrs 't Hart found these conversations distressing.

Prior interaction with police?

13Mr Whitfield alleged that, prior to the incident in question, Constable Lobb came to the unit and demanded that he pack a bag and leave. Mr Whitfield said that after some further discussion, Constable Lobb left but warned him that he should stop "playing up and causing . . problems." Mr Whitfield alleges that this incident occurred on 4 October 2008. In support of that evidence he produced a calendar which had the words "Police called 8 pm" next to that date.

14Mrs 't Hart's evidence is that Constable Lobb only came to her unit once and that that was on the occasion when Mr Whitfield moved out. She based that assertion on the fact that she does not go out at night so she would have been home if he had come on a previous occasion.

15There is no evidence of an entry on the COPS data base relating to Constable Lobb or any other police officer contacting Mr Whitfield prior to or after 29 September 2008, the date on which the entry on COPS was made about the incident in question. Constable Lobb said in oral evidence that he had no idea whether he had visited the unit on a previous occasion because he did not have access to the police records. Constable Lobb was medically retired from the NSW Police Force approximately 6 weeks before the hearing.

16Apart from the entry on the calendar on 4 October, the only evidence corroborating Mr Whitfield's recollection that Constable Lobb had visited him prior to the incident in question is a statement from a neighbour, Mrs McDean, that she recalls a police panel van being parked near Mr Whitfield's unit on another night. This evidence is too vague to lend weight to Mr Whitfield's version of events.

17The calendar entry was written on 4 October 2008 in capital letters. A second identical entry was written on 6 October 2008 in lower case. According to Mr Seck, that difference indicates that they were recorded on separate occasions. Whether Mr Whitfield recorded the calendar entries on 4 and 6 October at the same time or separately, we find that neither is an accurate record of the date Constable Lobb attended.

18We are satisfied that there was only one incident involving Mr Whitfield and Constable Lobb and that it occurred on 29 September 2008. We accept Constable Lobb's evidence that he records events on the same day as they occurred. There was no reason why Constable Lobb would have made a mistake about the date. Mr Whitfield's error in recording the date is puzzling given that he says he recorded the dates and times on the calendar when staying with a neighbour, Mrs McDean, shortly after the incident occurred. It demonstrates that Mr Whitfield's recollection and recording of events is somewhat unreliable.

Walker episode

19During the afternoon of the same day as the incident, 29 September 2008, Mrs 't Hart was with a neighbour, Mrs Osbourne, when Mr Whitfield returned from a shopping trip. Mr Whitfield says that when he drove up to his drive-way he saw that Mrs Osbourne's mobility walker had been left in front of the garage so that he could not park his car in the usual space. He said he "tooted lightly" but was ignored. He saw Mrs Osbourne and Mrs 't Hart standing at the back of the garage but they both ignored him so he got out of the car and asked Mrs Osbourne if she would kindly move her walker. He says that Mrs Osbourne put two fingers up and then made a 'raspberry' noise. She and Mrs 't Hart then walked into the house. Mr Whitfield says he had to carry the groceries through the front door and that after he had packed them away he felt "a bit upset and not welcome to go back to the unit."

20Mrs Osbourne did not give evidence. Another neighbour, Mrs McDean, gave evidence that on that day Mr Whitfield parked his car in the visitors' space next to her unit, looked over the fence and told her that June Osbourne had left her walker in front of the driveway so that he could not park his car there. He asked Mrs McDean if he could come into her home. They chatted for a while and then he left. According to Mrs McDean, Mr Whitfield was not upset or angry.

21The COPS data base contains an entry from Constable Lobb dated 29 September 2008 in which the "person reporting" is identified as a neighbour, June Osbourne, the "victim" is identified as Mrs 't Hart, the two "witnesses" are identified as Raymond Osbourne (Mrs Osbourne's son) and June Osbourne and the "person of interest" (POI) is identified as Mr Whitfield. Mr Whitfield's age is recorded as being 87. When quoting this document, minor spelling and punctuation errors have been corrected.

22The COPS entry contains the following note in relation to the "walker episode":

The witnesses (Judy and Ray Osbourne) told police that today they had a walking trolley out near the victim's (Mrs 't Hart's) garage for a short time and the POI (Mr Whitfield) drove his car up to the victim's flat and on seeing the trolley in the path of his car he has verbally abused the witnesses. The witnesses do not want to take any formal action, only for police to be aware of the situation. The witness was advised of personal AVO. (Words in brackets added.)

23We are satisfied that an incident occurred during the afternoon of 29 September 2008 between Mr Whitfield and Mrs Osbourne. There was a terse verbal exchange involving both parties.

Reason for the police visit

24Constable Lobb's recollection when giving oral evidence was that he did not know either Mrs 't Hart or Mr Whitfield prior to the incident. He said he thought his visit to Mr Whitfield was prompted by a phone call from Ray Osbourne, Mrs Osbourne's son. He said he knew Ray Osbourne from "the boat ramp or fishing." He spoke to Mr Osbourne and another unnamed resident before speaking to Mr Whitfield.

25The first part of the COPS record, except for the passage in relation to the walker episode set out above, states that:

About 5.00 p.m. 29/9/08, police spoke to the witnesses (June and Ray Osbourne) in relation to complaints about the POI (Mr Whitfield). These complaints were all of a minor nature, however there were numerous ones, some of which were months old. The witness wished for advice from police as she advised police the POI is currently a carer to the victim and that he also resides with the victim (Mrs 't Hart). The witnesses told police the victim is moving to (name of town deleted) in a month's time and as is the agreement with the Catholic Church she will sell the flat back to the church on leaving. Police were advised the POI will be moving into the flat as a resident when the victim leaves. The witnesses are concerned of the POI moving into the flat as they believe he will disturb the peace in the retirement village.

Police left the witnesses' house and were approached by another resident in the village. She also expressed concerns of the POI becoming a resident in the village after he has verbally abused her in the past. She too was advised of personal AVO as well as advised to contact the Church and make formal complaints of the POI to the Church, to make them aware of the situation with the POI being in this small retirement village. (Words in brackets added.)

26There is also reference in the COPS report to a phone call from Mrs 't Hart's daughter:

The victim's daughter rang and police spoke to her and she confirmed her mother does not want the POI (Mr Whitfield) to live with her any more, but feels responsible for looking after him as he has been her carer.

27The reference to this phone call appears in a later section of the COPS report after Constable Lobb recorded that he had spoken to Mr Whitfield and before he recorded that he had spoken to Mrs 't Hart. In Mrs 't Hart's statement she states that her daughter told her after the incident that she had contacted the NSW Police Force, but does not say when she did so. That evidence, being hearsay, was not admitted as to the truth of that statement. Mrs 't Hart confirmed that she did not request police to come to the unit.

28We are satisfied that Constable Lobb visited Mr Whitfield following a phone call from Ray or June Osbourne on 29 September 2008. Constable Lobb also spoke to Mrs 't Hart's daughter by phone on that day. Constable Lobb formed the view that Mr Whitfield had been abusing his neighbours and that they wanted him to move out. He went to the unit to investigate further.

What happened during the visit?

Mr Whitfield's evidence

29Mr Whitfield's version of events is that when he opened the door Constable Lobb said, "Are you Keith Whitfield? Well pack your bags and get out. This is Pauline's unit." In oral evidence Mr Whitfield said that that was the only sentence he said and that he kept repeating it. Mr Whitfield said that despite asking Constable Lobb for "a piece of paper" or some authority or warrant, Constable Lobb did not answer him. Mr Whitfield said that he didn't understand what he had done wrong and asked where he was supposed to go? Constable Lobb volunteered that he would put him in a caravan park but Mr Whitfield said that would not help because he couldn't pay for it and had nowhere else to go. Mr Whitfield said he became distressed when Constable Lobb did not respond to his questions and refused to leave.

30According to Mr Whitfield, he began to experience pains in his chest and told Constable Lobb that he thought he was having a heart attack. He said that Constable Lobb ignored him and kept telling him to get out until Mrs 't Hart relocates at the end of October 2008. Mr Whitfield described Constable Lobb's manner as being very abrupt and intimidating. He said that he had no other choice but to comply with his direction.

31After some time, Mr Whitfield says that Mrs 't Hart told him that she had just spoken to a neighbour, Mrs McDean, and that she had said that he could stay with her. Constable Lobb then told him that he could come back the next day to get some more of his things but he did not want Mr Whitfield speaking to Mrs 't Hart or coming back to the unit again until she had moved out. He collected some belongings and went to Mrs McDean's home. Mr Whitfield stayed with Mrs McDean for the next three weeks during which time he negotiated to lease the unit which he and Mrs 't Hart had previously occupied together.

Mrs McDean's evidence

32Mrs McDean says that when Mrs 't Hart came to her unit at about 6:30 p.m. that evening, she said words to the effect of, "Can Keith come and stay in your spare room because June Osbourne has had him kicked out?" Mrs 't Hart denies saying those words to Mrs McDean. Mrs McDean says that Mr Whitfield was extremely upset when he came to her unit and that she tried to calm him down. He told her that:

The police have kicked me out. They have told me I can't go back. The policeman kept telling me to get out, get out, get out and don't talk to Pauline or go anywhere near her. I kept telling him I haven't done anything wrong. The whole time Pauline just sat there and said nothing.

Mrs 't Hart's evidence

33Mrs 't Hart's evidence consists of a statement she gave to Constable Lobb on 29 September 2008, a statement prepared for these proceedings dated 14 June 2011 and her oral evidence which she gave by phone. In her contemporaneous statement to Constable Lobb, Mrs 't Hart states that:

Keith is not physical towards me but his tongue never stops. He is always blaming everything on me and it's always my fault. Keith and I used to get on very well however since I told him I am moving to (name of town deleted) his behaviour towards me has changed. Keith is a gambler and has spent all his money, so he thinks I should leave money to him in my will and some money from when I move/sell out of the flat. He keeps telling me I have to give him money.

Keith can't see what he does and how he talks to me. It is quite distressing to me how he talks to me as I get dizzy spells and angina and stress is a concern for me.

I do not want police to apply for an AVO against Keith as I do not have any fears of him. I only want Keith to leave my house as he was only my carer and he is not required to live with me. I do not want any referrals from other agencies.

34Mrs 't Hart said that she became quite distressed and upset when listening to Constable Lobb speaking to Mr Whitfield. While she does not recall the exact content of the conversation, she knows that Constable Lobb asked Mr Whitfield to leave the unit. She also recalls that Mr Whitfield raised his voice and said, "What about my clothes?" She recalls that Constable Lobb replied, "You can get them tomorrow." Mrs 't Hart said in her statement of 14 June 2011 that she did not request Constable Lobb to ask Mr Whitfield to leave. However, it is apparent from the last paragraph of her contemporaneous statement that she told Constable Lobb that she wanted Mr Whitfield to move out. Later, she says that Constable Lobb told her that he had asked Mr Whitfield to leave the unit because of the aggressive way in which he was behaving. She said that she did not disagree with Mr Whitfield being asked to leave and understood that Constable Lobb was just trying to control Mr Whitfield and look after her best interests.

35Mrs 't Hart confirmed that while Constable Lobb was at the unit she went next door and spoke to Mrs McDean. She asked her if Mr Whitfield could stay in her spare room. Mrs McDean agreed and Mr Whitfield gathered a few of his belongings and went to her unit.

36According to Mrs 't Hart, throughout the conversation with Mr Whitfield Constable Lobb acted professionally, respectfully and politely. She denies that he raised his voice or acted aggressively in any way towards Mr Whitfield.

Constable Lobb's evidence

37Those parts of the COPS report not previously quoted are set out below:

. . . .

Police attended the location with the view of speaking to the POI in relation to the complaint made by his neighbour. Police briefly spoke to the POI where the POI told police he only very politely asked the witness to remove her walker. The victim has then advised that the POI is lying and he yelled at the witness. The POI began to verbally degrade the victim.

Police spoke to the POI in relation to the neighbour dispute and he was requested not to yell at his neighbours.

Police then spoke to the victim. She advised the POI has been her carer for the past two years and she has agreed to let him stay in her house during this time, as the victim suffers from dizzy spells and angina. The victim advised the POI is paid to be her carer and they are not in any type of relationship. The victim told police she is selling the flat back to the church in a month's time to move to (name of town deleted) to live with her family, and that the POI has an agreement with the church to rent the flat from the church after this time.

The victim told police the POI's behaviour towards her has changed since he has been told of her leaving and this appears to be money related. The POI is a gambler and the victim has provided financial support to him for some time. However now the victim is leaving the POI is demanding the victim give him 1/8 of the money from the sale of the flat. He has also demanded her to include him in her will. The victim will not do this. The victim also told police the POI is always blaming everything on her and making out everything is her fault, and that she can no longer have the POI live in her house with her.

Whilst police were at the scene, the POI kept interrupting the victim and trying to dominate the victim.

Police spoke to the victim. The victim informed the POI she will no longer allow the POI to reside with her. The POI made short term arrangements to stay at another neighbour's flat this night until he can find alternative accommodation in the next month until the victim sells the flat.

The victim would not supply a statement to police for police to apply for an AVO on her behalf. The victim told police she does not hold any fears of the POI, and she was very thankful that the police were present to support her through this incident.

38In oral evidence Constable Lobb said that he remembers going to Mr Whitfield's residence and making it clear to him that his arrangement with Mrs 't Hart was not working and suggesting that he move to a caravan park. He denies directing Mr Whitfield to leave the unit or telling him to pack his bag and get out. He also denies being aggressive. He recalls Mr Whitfield saying that he did not have any money.

39Constable Lobb says that Mr Whitfield kept interrupting him when he was trying to take a statement from Mrs 't Hart. He can remember telling Mr Whitfield to be quiet and to let Mrs 't Hart talk to him.

40Constable Lobb does not recall Mr Whitfield crying or saying that he felt as if he was having a heart attack. He said that if Mr Whitfield had said he had chest pain he would have called an ambulance. When he left he considered that there was nothing further for him to do as Mr Whitfield had agreed to leave the unit and Mrs 't Hart had not requested any further action.

Reliability, credibility and corroboration

41The most reliable evidence is the lengthy, contemporaneous record of the incident written by Constable Lobb very shortly after it occurred. Constable Lobb's practice was to record events in the data base generally on the same day as it occurred. The detail of the record suggests that he followed that practice in this case. The COPS entry is more reliable than evidence given months or years later. Its reliability is enhanced by the fact that it was not prepared with these proceedings in mind. The first record the Tribunal has of Mr Whitfield writing down his recollection of the incident is his statutory declaration dated 28 September 2009, one year after the incident occurred. Apart from Mrs 't Hart's contemporaneous statement to Constable Lobb, she did not write down her recollection of events until nearly three years later on 14 June 2011.

42Despite the detail of the COPS entry, the most striking omission is that it records very little of what Constable Lobb said. We assume that he was not silent throughout the whole incident. In oral evidence, he admitted making a suggestion about staying in a caravan park. It is apparent that he said a great deal more than that.

43Similarly, Mr Whitfield has concentrated on what Constable Lobb said, rather than on what he said to Constable Lobb. He denies having a conversation with Constable Lobb about the walker episode. The COPS entry records that Constable Lobb spoke to Mr Whitfield, "briefly" about this incident. In addition, he does not recall that Constable Lobb had a lengthy conversation with Mrs 't Hart during which he obtained a statement from her.

44Both Mr Whitfield's recollection and Constable Lobb's account are incomplete because they do not record what they themselves said in any detail. In hindsight Mr Whitfield has focused on the message that he perceived Constable Lobb to be making, that is, that he had to leave. It is not surprising, given the obvious stress he was under, that he has forgotten the details of the conversation.

45Mrs 't Hart gave evidence by phone. Her answers were direct and unhesitating but in several significant respects they conflicted markedly with evidence from other witnesses. Firstly, although not relevant to any issue in dispute, Mr Whitfield produced a docket book recording expenditure for the period April 2002 to May 2004. We find, on the basis of this book, that Mr Whitfield kept detailed records of expenditure on food, rent, telephone and electricity bills, motor vehicle repairs and cleaning. Despite that evidence, Mrs 't Hart said flatly that Mr Whitfield had never contributed to any expenses apart from paying half the food bill and rent. She revised that evidence saying at one stage that he had never paid any rent and then added later that, "He could have put in a small amount". She denied that he contributed to the phone bill, electricity bill or paid the cleaner. In her written statement, Mrs 't Hart said:

Mr Whitfield has never given me any money in my life and to the best of my knowledge never paid for anything to do with the maintenance and upkeep of the unit using his own money. As far as I am aware, the only thing Mr Whitfield ever paid for was half of the weekly food bill. Mr Whitfield never paid for us to go on holidays, as he claimed he would before he moved into the unit.

46As far as it goes, this is an accurate account but it fails to mention that Mr Whitfield paid his share of the rent and the household bills. The docket book satisfies us that he paid for half the phone and electricity bills as well as his share of the food and the rent. He also paid for the cleaner and for repairs on his car.

47The most obvious failing in Mrs 't Hart's recollection of events is her evidence that she did not know until after the incident that she would definitely be moving to live with her daughter. She says in her statement that the decision was made very quickly following the incident. Mr Whitfield's evidence and the evidence in the COPS report demonstrates that this was not the case. It is incontrovertible that Mrs 't Hart told Constable Lobb that after telling Mr Whitfield that she was moving out in October, his behaviour towards her changed.

48Minor inconsistencies in relation to matters such as where Mrs 't Hart was sitting at the time of the incident and who answered the door are not significant enough to draw an adverse inference as to the accuracy of her recollections. However, given the number and nature of the other inconsistencies between Mrs 't Hart's evidence and that of other witnesses and the fact that memories fade over time, we do not regard the evidence she gave after the incident as being particularly reliable.

49Mr Poynder, representing Mr Whitfield, submitted that Mrs McDean gave firm confident and plausible evidence. She did not need time to reflect on her answers and delivered those answers in a straightforward style. However, we are of the view that the reliability of Mrs McDean's evidence has been affected by the fact that she supports Mr Whitfield and did not record her memory of these events until nearly three years after the incident.

50Constable Lobb was formerly a police officer but was medically retired approximately 6 weeks prior to the date of hearing. He did not provide a statement but appeared in response to a summons. He was in obvious pain during the time he gave evidence. Although he did not disclose the nature of his injury, it appeared to be a back injury. He disclosed that he was taking Di-Gesic tablets and that they were affecting his memory. He said that he was on medication for pain and that it "makes things foggy".

51Mr Poynder submitted that Mr Lobb's answers were bland and formulaic and that he made little effort to recollect the relevant events. He was said to have firmly denied any adverse matter that was put to him.

52We did not agree unreservedly with that characterisation of his evidence. Constable Lobb admitted during oral evidence that he "made it clear" to Mr Whitfield that his arrangement with Mrs 't Hart was not working and that he "suggested" that he move to a caravan park. Those details do not appear in the COPS report. We are satisfied that while the COPS entry is, in general terms, an accurate account of what happened, it omits critical detail about whether he or Mrs 't Hart conveyed to Mr Whitfield that he should move out and the vehemence with which that message was conveyed. Constable Lobb omitted that evidence because it did not reflect well on him.

Findings about the incident

53When the police arrived, Mrs Osbourne's told Constable Lobb that Mr Whitfield yelled at her when he found her walker blocking the drive-way.

54Mr Whitfield submitted that the Osbourne's complaint was unfounded and was designed to get the police to attend. That version of events was said to be supported by Mrs McDean's evidence that when Mrs 't Hart came to ask her whether Mr Whitfield could move in, she said, "Can Keith come and stay in your spare room because June Osbourne has had him kicked out?" Mrs 't Hart denied that that is what she said and Mrs McDean did not record her recollection of the conversation until 2 years after the incident. In those circumstances, we are not satisfied that that comment was made. However, we are satisfied that the Osbourne's motivation for calling the police was for Constable Lobb to speak to him and urge him to stop abusing them. They also expressed concern about him remaining in the unit when Mrs 't Hart moved.

55When Constable Lobb knocked on the door he first spoke to Mr Whitfield about the walker incident and his relationship with his neighbours. Mr Whitfield denied yelling at the neighbours. Constable Lobb asked him not to do so in future.

56He then spoke to Mrs Hart and recorded a statement from her in his notebook. The critical evidence in that statement is:

I do not want police to apply for an AVO against Keith as I do not have any fears of him. I only want Keith to leave my house as he was only my carer and he is not required to live with me. I do not want any referrals from other agencies.

57We are satisfied that Mrs 't Hart conveyed to Constable Lobb that she wanted Mr Whitfield to move out.

58Constable Lobb states in his report that it was Mrs 't Hart who asked Mr Whitfield to leave:

Police spoke to the victim . The victim informed the POI she will no longer allow the POI to reside with her. The POI made short term arrangements to stay at another neighbour's flat this night until he can find alternative accommodation in the next month until the victim sells the flat.

59The italicised sentence is clearly incorrect because Mrs 't Hart, Mrs McDean and Mr Whitfield all said that Mrs 't Hart went to Mrs McDean's unit to ask if Mr Whitfield could stay with her. We are also satisfied that Constable Lobb was not accurately recording the events when he wrote that it was Mrs 't Hart who told Mr Whitfield that she no longer wished him to reside with her. Both Mrs 't Hart and Mr Whitfield deny that Mrs 't Hart made that comment. Constable Lobb admitted in oral evidence that he "made it clear" to Mr Whitfield that the arrangement with Mrs 't Hart was not working any more. While Constable Lobb denies directing Mr Whitfield to leave, he admits suggesting that he move to a caravan park. We are satisfied that it was Constable Lobb, not Mrs 't Hart, who made it clear to Mr Whitfield that he had to move out.

60We accept Mrs 't Hart's evidence that during the time that Constable Lobb was talking to Mr Whitfield, she became quite distressed and started to cry. Although she wanted Mr Whitfield to move out, she had some sympathy for his situation and arranged for Mr Whitfield to stay temporarily with Mrs McDean.

61We do not accept Mr Whitfield's version of events that Constable Lobb demanded that he leave as soon as he entered the unit. We are satisfied that he spoke to Mrs 't Hart first and when her wishes had been made clear, he told Mr Whitfield that he had to move out. We accept Constable Lobb's evidence that he told Mr Whitfield that his arrangement with Mrs 't Hart was not working and that he discussed options such as moving into the caravan park. When he insisted that Mr Whitfield move out, Mrs 't Hart made the arrangement with Mrs McDean. We are also satisfied that Constable Lobb had no authority to require Mr Whitfield to leave the home in which he was living.

Definition of "service"

62Does Constable Lobb's insistence that Mr Whitfield move out amount to the refusal of a service to Mr Whitfield or the provision of a service to him on certain terms as provided for in s 49ZYN(1)?

63There is no dispute that police officers provide "services by way of prevention and detection of crime" and/or "the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way". Those activities are included in the definition of "police services" in s 6 of the Police Act 1990. Section 6 of that Act also identifies the 'mission' and the 'functions' of the NSW Police Service:

6 Mission and functions of NSW Police Force

(1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.

(2) The NSW Police Force has the following functions:

(a) to provide police services for New South Wales,

(b) to exercise any other function conferred on it by or under this or any other Act,

(c) to do anything necessary for, or incidental to, the exercise of its functions.

(3) In this section:

"police services" includes:

(a) services by way of prevention and detection of crime, and

(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and

(c) the provision of essential services in emergencies, and

(d) any other service prescribed by the regulations.

64When asked what he considered to be his role when attending Mr Whitfield's residence, Constable Lobb said it was to investigate whether any person was in danger or whether there had been any breach of the law. He confirmed that he had not formed any opinion as to either of those matters before talking to Mr Whitfield and Mrs 't Hart.

65We accept that when Constable Lobb attended the unit in which Mr Whitfield and Mrs 't Hart were living, he did so to investigate a complaint about Mr Whitfield. In the course of investigating that complaint he was providing the services of "preventing and detecting crime" and "protecting persons from injury and death and property from damage". In Commissioner of Police v Mohamed [2009] NSWCA 432, the Court of Appeal concluded at [49] that:

Conduct of police officers with respect to a request for assistance in relation to possible criminal activity, where protection of persons or property may be required, can involve the refusal or provision of "services" for the purposes of s 19 of the AD Act .

66There was no dispute that the services being provided by Constable Lobb were being provided to the public in general and to the alleged victims, such as Mrs 't Hart. According to Mr Poynder, representing Mr Whitfield, Constable Lobb was also providing services to Mr Whitfield.

67The service must be identified precisely and concretely in relation to the facts of the case and the issues that arise for determination: Waters v Public Transport Corporation [1992] HCA 49; 173 CLR 349, per McHugh J at 404. There is no point defining the service in broad terms if the allegation relates to a narrow situation. In this case, the alleged conduct is the insistence by Constable Lobb that Mr Whitfield move out of his home.

Is Constable Lobb's insistence that Mr Whitfield move out a "service" under the AD Act ?

68Services are defined in s 4 of the AD Act to include "services provided by a council or public authority". The NSW Police Force is a public authority: Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 475 at [41] to [43]. The word "services" has its ordinary meaning both in the Police Act 1990 and the AD Act : Commissioner of Police v Mohamed [2009] NSWCA 432 at [32]. Consequently, anything which falls within the "ordinary notion" of a service comes within the definition: IW v City of Perth [1997] HCA 30; 191 CLR 1 per Dawson and Gaudron JJ at [23].

69The English and Australian cases on this issue establish that not everything that a police officer or government official does, in the course of carrying out their functions and duties, constitutes a service. Some functions are purely governmental in character and do not involve the provision of a service to the person or persons concerned. For example:

(1)the refusal of a Council to give planning approval for a centre for persons with HIV or AIDS is not a service to the potential beneficiaries of the centre: IW v City of Perth [1997] HCA 30; 191 CLR 1;

(2)the pursuit and arrest of a suspected criminal is not a service to the person being pursued or arrested: Commissioner of Police v Estate of Russell [2002] NSWCA 272;

(3)bringing criminal proceedings against a person is not a service to that person: Farah v Commissioner of Police of the Metropolis [1997] 1 All ER 289 at 304 per Hutchison LJ;

(4)the administrative procedures applied to a person on entry to an immigration detention centre is not a service to that person: Gichura v Home Office [2008] EWCA Civ 697 [25]; and

(5)controlling immigrants by the issuing of special vouchers to the head of a household to enable persons to settle in the United Kingdom is not a service to that person: R v ECO ex parte Amin [1983] 2 AC 818.

70While there are certain activities that are purely governmental, courts in the United Kingdom have held that officials can be carrying out their functions and duties and providing services at the same time. In many circumstances the two activities are not mutually exclusive: Savjani v IRC [1981] QB 458 per Templeman LJ at 468A ; Gichura v Home Office & Anor [2008] EWCA Civ 697 at [19].

71In Savjani v IRC [1981] QB 458 the Inland Revenue required a couple from India to produce a full birth certificate for their child before being entitled to claim tax relief for that child. In the same circumstances a couple who did not come from India could claim the tax relief by producing a short form of birth certificate which was less expensive. The Court of Appeal held that Inland Revenue had a duty to collect the right amount of revenue, that is to determine whether a taxpayer was entitled to a deduction for a dependant child. When performing that duty and when disseminating and giving advice to taxpayers to allow them to claim a tax deduction, Inland Revenue was providing a service: at 466 per Lord Denning MR and 466-468 per Templeman LJ. The concept of performing a duty and carrying out a service were held not to be mutually exclusive; Templeman LJ at 468.

72The area of overlap between carrying out duties and functions and providing a service cannot be precisely defined without reference to the particular facts. However, in general, a government official will be providing a service when doing something similar to that which might have been done by a private person: Amin v Entry Clearance officer, Bombay [1983] 2 All ER 864 at 872-873 per Lord Fraser. Examples include:

(1)a security firm could provide protection for an individual in a similar way to a police officer: Farah v Commissioner of Police of the Metropolis [1997] 1 All ER 289 at 298 per Hutchison LJ; and

(2)services provided in a detention centre or in prison such as providing bedding, medical services and food are similar to services provided by private persons in other institutional contexts: Gichura per Buxton LJ at [14].

73Things that could never be done by a private person and which therefore would not constitute a service include gaining forcible entry into a suspected drugs warehouse: Farah at 305 per Otton LJ.

74The UK case that is most analogous to the present case is Farah v Commissioner of Police of the Metropolis [1997] 1 All ER 289 because it specifically relates to services provided by police officers. The following case was pleaded by Ms Farah, a citizen of Somalia and a refugee aged 17 at the time:

. . . she and her 10-year-old cousin were attacked near their home by some white teenagers, who set a dog on her and injured her. By a 999 call she summoned police assistance, but the police officers who came in response, instead of helping her and seeking to detain her attackers, arrested her without cause, detained her for a time, and charged her with affray, common assault and causing unnecessary suffering to a dog. She was released on bail the same day. On 12 January 1995 she appeared to answer the charges and, no evidence being offered, was acquitted.

75The Court of Appeal accepted, at 299, that the provision of services to the public pursuant to s 20 of the Race Relations Act 1974 (UK) was "wide enough to apply to at least some of the acts undertaken by police officers in the performance of the duties of their office." In particular, as we have said, it covers a police officer's duties "involving assistance to or protection of members of the public." Ms Farah's representative submitted that their client sought certain services from police but they failed to provide her with those services. In particular, the officers:

(a) . . .failed to react, alternatively chose to ignore her call for assistance by way of an emergency telephone call to the police emergency service before the attendance of the said officers;

(b) . . . failed to investigate her account of events both at the scene of her apprehension and thereafter;

(c) . . .failed to afford the protection accorded victims of crime in like manner to the plaintiff as to white members of the public; and

(d) brought the criminal proceedings against her.

76While Hutchison LJ was satisfied that the first three activities arguably constituted the provision of a service, in his view the fourth category was clearly not a service: at 304.

77Mr Seck submitted that Constable Lobb was not providing a service to Mr Whitfield because services by way of preventing and detecting crime are not services to alleged perpetrators. The service is to the putative or actual victim of the crime. That proposition is not supported by the decision in Farah nor, despite Mr Seck's submission to the contrary, by the Supreme Court's decision in Commissioner of Police v Estate of Russell [2002] NSWCA 272.

78In Russell , Sully J answered various questions of law referred to the Supreme Court by the Appeal Panel of this Tribunal. The factual background to the complaint was set out by the Court of Appeal in Commissioner of Police v Estate of Russell [2002] NSWCA 272 at [5] to [7]:

[5] The Equal Opportunity Division of the Tribunal held that six police constables, one sergeant and a detective, who are Respondents in this appeal, unlawfully discriminated against and unlawfully racially vilified Mr Edward Russell on the basis of his Aboriginality. The background facts found to exist by the Tribunal related to an incident in December 1993. The deceased was driving a stolen utility vehicle and was being pursued by a number of police vehicles. There was a collision between a police vehicle and the utility. Ultimately the deceased was arrested and taken into custody. In the process the passenger window of the utility which the deceased had been driving was broken. The deceased was hit on the arm with a police baton. He was dragged out of the utility. He was forced to the ground by four police officers. The deceased's hands were handcuffed behind his back. He was carried or dragged up a steep embankment onto the road by his arms. Police officers deliberately trod on the deceased while he was on the ground. He was punched several times by at least one of the police officers. A number of the police officers bashed the deceased's head against the back of the police vehicle. The deceased was subjected to abusive, foul and racist language.

[6] The Tribunal found that there was excessive force and abusive language, and that that conduct was causally connected with the deceased's Aboriginality. It was held to constitute unlawful discrimination on the grounds of race contrary to s7(1)(a) of the Anti-Discrimination Act. . .

[7] The Tribunal ordered that the New South Wales Police Service and the eight police officers pay, by way of compensation for the unlawful act, an amount of $30,000 to the estate of the deceased.

79Sully J's assessment of the conduct of the police officers in the course of their pursuit and arrest of Mr Russell was as follows:

[1] The police officers who took part in the pursuit of Mr. Russell were providing to the community at large services of the kind described in section 6(3)(a) and (b) of the Police Service Act.

[2] The police who took part in the arrest of the late Mr. Russell were also thereby providing to the community at large services of those two kinds.

[3] As soon as the late Mr. Russell had been formally arrested, and had passed thereupon into police custody, the arresting police, and any police officer who had any part at all in the way in which Mr. Russell was subsequently handled; or who witnessed the way in which Mr. Russell was handled; became thereupon charged with a public duty to provide to the late Mr. Russell police services by way of the protection of his person from injury or death, and the protection of his property from damage, "whether arising from criminal acts or in any other way".

80When pursuing Mr Russell in their vehicle and when arresting him, police officers were not providing him with a service. As soon as he had been formally arrested, police were providing him with a service under the AD Act .

81With respect, the distinction that Mr Seck seeks to make between services to victims and services to alleged perpetrators is not sound. While the decision in Russell does not refer to the case of Farah , it is apparent that the reasoning was, at least to some extent, derived from that decision. The relevant distinction is between purely governmental duties and functions such as arresting, charging or prosecuting a suspected criminal and services which, although provided in the course of exercising governmental duties and functions, are akin to those provided by private persons in other contexts.

82This issue has most recently been discussed by the NSW Court of Appeal in Commissioner of Police v Mohamed [2009] NSWCA 432. In that case the brief facts were as follows:

In July 2007 Ms Rehab Mohamed and her family were at their home in Blacktown. They claimed that they were abused and assaulted by members of a neighbouring family. Ms Mohamed rang police and two officers attended at the family home. However, it is alleged that the officers were rude to the family and failed to take their complaint seriously. It was said that the police took no action against those said to have been responsible for the abuse and assaults.

83The Court (Basten JA, Spigelman CJ agreeing) did not disturb Sully J's conclusion in Russell . However their Honours referred at [41] to the distinction between acts which are akin to acts done by a private person and acts which would never be done by a private person. The Court came to the following conclusions about the recipients of services provided by the NSW Police Force:

(1)the NSW Police Force provides services, not only to the public at large but to individuals to whom the service is actually provided or refused: Mohamed at [35] and [36];

(2)those persons are not necessarily limited to the person reporting an event relating to an alleged criminal offence: Mohamed at [49].

84On remittal from the Court of Appeal, the Tribunal decided that the police investigating the complaint made by the Mohamed family were providing services to that family within s 19 of the AD Act and were required not to discriminate on the grounds of race by refusing to provide the services or in the terms on which the services were provided: Mohamed & Ors v State of New South Wales (NSW Police Force) unreported, 31 March 2010.

85Services "by way of prevention and detection of crime" and "the protection of persons from injury or death, and property from damage" were actually provided to Mr Whitfield when he was told to leave his home. These are helpful or beneficial activities and Mr Whitfield was a potential beneficiary. This activity is not a purely governmental function such as charging, arresting or prosecuting a suspected criminal. It was not done pursuant to any power or duty that is entirely within the governmental sphere. It is sufficiently analogous to an activity that a private person may engage in to come within the definition of a service. For example, a security guard, counsellor or social worker may, without authority, make demands of a person which are akin to the demand that Constable Lobb made of Mr Whitfield.

86We are satisfied that Constable Lobb was providing a service to Mr Whitfield within the meaning of that term in s 19 of the AD Act when he demanded that he move out.

Refusal of service or provision on less favourable terms?

87The complaint as referred by the President of the Anti-Discrimination Board was a complaint alleging age discrimination in the provision of goods and services in breach of s 49ZYN(1). That provision makes it unlawful to discriminate either by refusing to provide a service or in the terms on which a service is provided.

88Mr Whitfield was not required to identify the paragraph of the provision on which he was relying in his complaint to the Anti-Discrimination Board. The Tribunal did not make directions for the parties to file Points of Claim or Points of Defence. The NSW Police Force was aware that Mr Whitfield's complaint was a complaint of age discrimination in the provision of goods and services.

89At [44] of Russell , Sully J was satisfied that NSW Police had refused to provide Mr Russell with a service:

[5] To say that what the individual police officers did, or suffered to be done, to the late Mr. Russell amounted to the provision by them to him of police services, but on a basis discriminatory in the sense contemplated by section 19(b), seems to me to be a wholly artificial perception, given the facts found by the Equal Opportunity Division. The police officers involved did not, in my opinion, provide imperfectly to the late Mr Russell the services which they were duty bound to provide to him. They did not provide those services at all.

90We are satisfied that Constable Lobb refused to provide Mr Whitfield with the service of "protecting persons from injury and death" by insisting that he leave. His insistence that he do so, without authority, exposed Mr Whitfield to psychological injury.

91In relation to paragraph (b) of s 49ZYN(1) the NSW Police Force submitted that they did not enter into a transaction with Mr Whitfield where terms would govern the provision of the service. No transaction of the kind envisaged is required in order for the actions of Constable Lobb to constitute the provision of a service on unfavourable terms. We are satisfied that even if Constable Lobb did not refuse to provide Mr Whitfield with the service of protecting persons from injury, he provided that service to Mr Whitfield on unfavourable terms by insisting that he move out.

92According to NSW Police Force, the substance of the complaint concerns the manner in which the alleged services were provided. Constable Lobb's conduct in directing Mr Whitfield to leave the premises and the language and tone of voice is alleged to have been used to intimidate Mr Whitfield. It was submitted that the manner in which a service is provided cannot amount to unlawful discrimination: Turner v State Transit Authority [2004] NSWADT 89 (at [59] to [77]. The New South Wales Law Reform Commission pointed out this omission in Report 92 , Review of the Anti-Discrimination Act 1977 ( NSW) at p 170 and recommended that the Act be amended to include "the manner in which goods and services are provided". That recommendation has not been implemented.

93While the manner in which a service is provided is not covered by s 49ZYN(1), the conduct of Constable Lobb nevertheless constitutes both the refusal of a service and the provision of a service on unfavourable terms.

Differential treatment

94In the same or similar circumstances, would Constable Lobb have treated a person of a different age or age group (or a person who did not have a characteristic of older people) more favourably than he treated Mr Whitfield?

95Mr Whitfield was asked whether, if he had been 60 or 40 rather than 87 when the incident occurred, he would also have been upset. With respect that is not a relevant question. The question is not whether Mr Whitfield would have been just as upset regardless of his age but whether Constable Lobb would have made the same demands of a younger person.

96When there is no actual comparator, the differential treatment and causation requirements merge because the Tribunal could only reach the conclusion that the NSW Police Force treated Mr Whitfield less favourably than a hypothetical person of a different age by determining that age was a reason for that different treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133.

Causation

97To substantiate his complaint, at least one of the reasons for Constable Lobb's conduct must be Mr Whitfield's age or the characteristic of being generally less physically able to offer resistance to a police officer and more likely to comply with the sort of direction given by Constable Lobb. We take judicial notice of the fact that this is a characteristic that generally appertains to elderly people. Constable Lobb gave relevant evidence about the way in which he would have treated a hypothetical comparator when he said that it is likely that he would meet resistance if he attempted to remove a person from their home without authority.

98There is no need for Mr Whitfield to prove that the Constable Lobb intended to discriminate. Discrimination may not be conscious. The fact that the reason for the conduct is almost always within the respondent's knowledge makes it difficult for applicants to establish the grounds for that conduct. The High Court recognised and commented on this difficulty in Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 at 176 but has not suggested that the evidential burden should be on the respondent to give evidence about the reasons for its conduct. The situation remains under the AD Act that the legal and evidential burden remains on the applicant to prove his or her case.

99There was no direct evidence of causation. Mr Whitfield must rely on the Tribunal drawing an inference from the facts that age (or a characteristic of age) was one of the reasons for the conduct. To draw an inference, there must be a probable connection between the conduct and Mr Whitfield's age (or the characteristic) and the inference must be logical. An inference cannot be made where more probable and innocent explanations are available on the evidence.

100While there may have been other reasons for his actions, such as the requests from the Osbourne's, Mrs 't Hart's daughter and Mrs 't Hart herself, it is sufficient if one of the reasons for the conduct was Mr Whitfield's age: AD Act , s 4A.

101We are satisfied that, in the same or similar circumstances, if Mr Whitfield had been a much younger person Constable Lobb would not have demanded that he move out. Constable Lobb agreed that if there had been no breach of the law, he has no power to force a resident to vacate their home. Despite lacking the authority to do so, Constable Lobb forced Mr Whitfield to move out. We are satisfied that he would not have made that demand to a younger person or to a person who was likely to be less compliant because his age. It follows that one of the reasons for the treatment was Mr Whitfield's age or a characteristic of old age.

Remedy

102Mr Whitfield claims non-economic loss as a result of his state of mind following the incident. Evidence to support his claim comes from himself, Mrs McDean and a mental health social worker, Ms Schmidt. The general rule is that damages for non-economic loss should put the applicant in the situation that they would have been in had the discriminatory conduct not occurred: Hall v Sheiban Pty Ltd [1989] FCA 72; [1988-89] 85 ALR 503 at [73]; Haines v Bendall [1991] HCA 15; (1990) 172 CLR 60 at 63. Mr Poynder submitted that in accordance with those principles a minimal award should not be given.

Evidence of Mr Whitfield

103Mr Whitfield says that he found Constable Lobb frightening and bullying and found the experience humiliating and distressing. Even up to a year afterwards people commented to him that he had been kicked out of his house. He found these remarks distressing. He says that he is now unable to go out at night and feels stressed, anxious and unsure of his safety. He said the experience radically affected his outlook on life and he often feels depressed. We accept that evidence.

Evidence of Mrs McDean

104According to Mrs McDean, since the incident she has noticed that Mr Whitfield has changed a lot. She said that he has lost weight and is distracted and forgetful. He is also more afraid to go out after dark. We accept that evidence.

Evidence from social worker

105Ms Schmidt gave evidence that she is a qualified mental health social worker and that she has been accredited to practise in that area. She confirmed that she is not a psychologist or a psychiatrist but is qualified to diagnose people with mental illnesses including post traumatic stress disorder (PTSD), depression and anxiety. She first saw Mr Whitfield in January 2011 at the request of his solicitor following a referral from the Veterans and Veterans Families Counselling Service (VVCS). She administered a test to ascertain the state of his mental health. That test revealed that he suffered from severe depression, moderate anxiety and severe general stress. Although she did not consider that he had suffered from PTSD, he exhibited symptoms consistent with that diagnosis including difficulty sleeping and intrusive flashbacks. She said he avoids going outside at night, has lost weight and has stopped swimming because of concerns about his weight loss.

106Ms Schmidt confirmed that Mr Whitfield did not seek any assistance for his symptoms for approximately two and a half years after the incident. He was not taking any medication prior to the incident nor has he been prescribed medication following the incident. She confirmed that he reported that he was in "fairly good order", prior to the incident. She has now seen him for 15 sessions and he has reported that his sleep is improving.

107When prompted, Ms Schmidt disclosed that it was not only the altercation with Constable Lobb that had led to his changed mood but that he was also disappointed that there had not been a happy ending with Mrs 't Hart.

108Ms Schmidt's evidence was given in a professional and objective manner and we accept it.

Conclusion

109Although a one-off incident, Constable Lobb's conduct has had a significant effect on Mr Whitfield's psychological well being and overall confidence. While some of that effect is due to his disappointment that there had not been a happy ending with Mrs 't Hart, we consider that a sum of $10,000 is appropriate to compensate him for the loss occasioned by Constable Lobb's conduct.

Orders