District Court New South Wales

• Medium Neutral Citation: Ambrose v Commissioner of Police [2013] NSWDC 190
• Hearing dates: 16, 17 and 18 September 2013
• Decision date: 27 September 2013
• Before: Gibson DCJ

Decision

(1) The decision of the defendant's delegate dated 6 March 2012 pursuant to section 10B(3)(a) of the Police Regulation Superannuation Act 1906 (NSW) that the infirmity of "adjustment disorder with depressed and anxious mood" as specified in the Certificate of the Police Superannuation Advisory Committee dated 23 February 2012 is set aside pursuant to s 21 of the Act.

(2) The suffering by the plaintiff of the infirmity of "adjustment disorder with depressed and anxious mood" as specified in the said Certificate was caused by the plaintiff being hurt on duty on 2 June 2009, this being the notional date for such condition.

(3) Defendant pay plaintiff's costs.

• Catchwords: Police Superannuation and Pensions - retirement on account of incapacity - claim for additional entitlement - whether hurt on duty
• Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 - 62; Police Regulation (Superannuation) Act 1906 (NSW), s 10B; Workers Compensation Act 1987 (NSW), ss 4, 9A and 11A
• Cases Cited: Calman v Commissioner of Police (1999) 59 ALD 366; 167 ALR 91; Commissioner of Police v Goodwin [2008] NSWCA 345; Commissioner of Police v Minahan [2003] NSWCA 239; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417; Murray v Commissioner of Police (2005) 2 DDCR 438; Nominal Defendant v Kostic [2007] NSWCA 14; Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116
• Texts Cited: -
• Category: Principal judgment
• Parties: Plaintiff: Faye Lorraine Ambrose; Defendant: Commissioner of Police
• Representation: Plaintiff: Mr T Ower; Defendant: Ms J Petrolo; Plaintiff: Walter Madden Jenkins; Defendant: Vandervords Solicitors
• File Number(s): RJ00489/12
• Publication restriction: None

Judgment

1 The plaintiff was attested into the New South Wales Police Force on 30 April 1982 and became a contributor to the Police Superannuation Scheme, a scheme governed by the Police Regulation (Superannuation) Act 1906 (NSW) ("the Act"). She was medically discharged on 6 March 2012 pursuant to s 10B(1) of the Act with a number of infirmities that were later accepted by the plaintiff as amounting to hurt on duty. However, the infirmity of "adjustment disorder with depressed and anxious mood", while accepted as being an infirmity from which the plaintiff suffered, was not accepted as being a "hurt on duty" injury.

2 The plaintiff seeks orders as follows:

"1. The decision of the Defendant's Delegate dated 6 March 2012 pursuant to section 10B(3)(a) of the Act that the infirmity of 'adjustment disorder with depressed and anxious mood' as specified in the Certificate of the Police Superannuation Advisory Committee dated 23 February 2012 was not caused by the Plaintiff being hurt on duty, be set aside, pursuant to section 21 of the Act.

2. The suffering by the Plaintiff of the infirmity of 'adjustment disorder with depressed and anxious mood' as specified in the Certificate of the Police Superannuation Advisory Committee dated 23 February 2012 was caused by the Plaintiff being hurt on duty on 2 June 2009 (notional)"

The evidence in the proceedings

3 The plaintiff's evidence in the proceedings consisted of the following:

(a) The evidence of the plaintiff.

(b) The plaintiff's schedule of medical reports (Exhibit B). None of these doctors was required for cross-examination.

4 The plaintiff tendered the following reports:

(a) Clinical notes of Dr Futcher from 5 April 1997 to 25 August 2009;

(b) Reports of Dr Garne dated 9 February 2001 and 9 October 2002;

(c) Report of Dr Strum dated 29 August 2001;

(d) Report of Dr Blows dated 10 February 2004;

(e) Report of Dr Boland dated 13 September 2004;

(f) Reports of Dr Smith dated 5 November 2010 and 15 August 2012;

(g) Report of Dr Anderson dated 2 August 2013.

5 It is necessary to set these out in a full list as the defendant's submissions (page 2) do not list or refer to the reports of 15 August 2012 and 2 August 2013 at all.

6 The defendant's evidence consisted of the following:

(a) The evidence of Acting Superintendent, Acting Commander Operational Information Agency, Mark McCallum for the defendant.

(b) The defendant's medical tender bundle (Exhibit 1) consisting of two reports by Dr Ahmed (27 February and 18 March 2013) and two reports by Dr Moore (14 September and 24 November 2010).

7 Issues as to the content of the defendant's reports arose during the hearing. Dr Moore's report of 14 September 2010 stated that the plaintiff's employment was the substantial contributing factor to her condition of adjustment disorder with depressed mood and anxiety. In a short additional report, Dr Moore qualified this opinion, but still opined that the plaintiff's employment was "a substantial contributing factor", albeit outweighed by other matters.

8 Dr Ahmed's report of 25 February 2013 stated that Dr Moore's diagnosis was no longer applicable as the plaintiff had left the police force. While she still suffered significant degrees of distress, work was therefore not the substantial contributing factor. As a diagnosis of adjustment disorder with depressed and anxious mood had been accepted by the defendant and was a binding diagnosis, Dr Ahmed was asked to give a second report. He repeated that her symptoms "cannot be considered as an adjustment disorder with depressed and anxious mood" and that "the stressor of being in the police force is no longer apparent."

9 This was acknowledged by the defendant not to meet the test under the relevant application. An application for leave to adduce oral evidence from Dr Ahmed during the hearing was made but withdrawn following objection by the plaintiff. A second application for leave to re-open to call both Dr Ahmed and Dr Moore to give evidence, made in the course of closing submissions by counsel for the defendant, was rejected for reasons set out in more detail below.

The plaintiff's evidence

10 The plaintiff, who completed her schooling to year 11, worked first as a legal secretary, then as a purchasing officer for a freight company, before joining the Police Force at the age of 28. Her work in the Police Force took the form of general duties and Highway Patrol until she was sent to Castle Hill Police Station. While at Castle Hill, she was required to carry out an internal investigation into a motor vehicle accident involving another police officer which resulted in serious criminal charges being laid. This incident resulted in the plaintiff going off work hurt on duty in circumstances described in more detail below.

11 Many of the plaintiff's medical records (for example, Dr Garne, exhibit B, p. 3) comment on the stressful nature of police work. Dr Strum, writing a report for the police force in August 2001, described her as a conscientious police officer with "a caring approach in general and to her colleagues in particular" (Exhibit B, p. 11). The plaintiff's demeanour in the witness box was not that of a person prone to exaggerating or complaining. If anything, she understated both the difficulties of her job and the stress problems she began to develop in approximately 1998 - 1999 following a particularly difficult investigation. It is only by reading through the medical reports, where the plaintiff has described some of the events in her work activities, that the degree to which the plaintiff has been exposed to stressful events becomes apparent.

12 The plaintiff developed some strategies for dealing with stress. These included being a teetotaller, as she had observed the impact alcohol could have on her. The medical reports note she leads a healthy lifestyle, is a healthy weight, and is a non-smoker. The physical nature of police work also takes its toll. The plaintiff has unfortunately suffered a number of accidents during her years as a police officer, including a right knee injury in 1984, a lumbar disc injury in 1984/1985, fractures to both ankles, a thumb injury in the 1990s and a knee injury in March 2009 which had continuing symptomatology and required surgery in July 2009, when she ceased employment with the police force.

13 Part of the role of being a police officer is that complaints may be made about the manner in which police work is carried out. Several complaints of a minor nature were either dismissed (9 December 1994, 1 June 1995, 9 November 1998) or the subject of conciliation (8 April 1993, 14 February 1995, 20 July 1997). It is hard to see how these could have any bearing on the plaintiff's current problems. Similarly minor complaints (resolved on 10 August 1999, 26 October 1999, 1 March 2000, 28 March 2000, 16 May 2000, 23 October 2000 and 22 February 2001) related to conduct by the plaintiff during the 1998 - 2003 period, a time when she was dealing with the ongoing internal investigation into Senior Constable Brett Foster which led to the diagnosis of major depression (accepted as a hurt on duty claim), which is described in more detail below.

14 Again, these complaints were dismissed. One complaint (made on 7 September 2000 and resolved on 13 November 2000) resulted in an adverse finding. This complaint (failure to provide assistance to a member of the public who suffered minor injuries during an arrest) occurred shortly before the plaintiff had a breakdown on 16 October 2000. It is accepted that this breakdown occurred as a result of her emotional distress in relation to the ongoing internal investigation into Senior Constable Brett Foster.

15 The background to the plaintiff's diagnosis for depression is as follows. The plaintiff had been reluctant to conduct the Foster investigation from the first, both by reason of her lack of experience and her social relationship with this police officer and his family; they had been classmates at the Police Academy, their children played together and she was acquainted with his wife.

16 Part of the difficulty was that Senior Constable Foster had taken what the plaintiff called an "obstructionist" view to the investigation. The history of the investigation and the drawn-out court proceedings are set out in the statement the plaintiff provided in relation to the hurt on duty claim she lodged (Exhibit A). This included the making of complaints about the plaintiff (Exhibit A, page 10) as well as two anonymous complaints (Exhibit A, page 10). The plaintiff received anonymous phone calls during the night; her telephone line was put under surveillance and there was talk about putting her into witness protection. She had a security system installed in her home. Items went missing from her desk at work, including documents relating to the complaints made about her.

17 The allegations against Constable Foster were serious. He was eventually charged with conspiracy to pervert the course of justice, for which he was ultimately convicted. The whole investigation lasted over three years and two months before Constable Foster was sentenced. The plaintiff's evidence was that, during that period, she received little support.

18 The symptoms the plaintiff developed included anorexia and a facial tic with twitching and visual problems, visibly apparent to Dr Strum and other doctors. Although an initial MRI was negative, Dr Garne noted that a second MRI suggested mild Bell's palsy, and that these symptoms, which were persisting, were increased with stress. The plaintiff's unchallenged evidence that she still suffers from facial tics and twitching, and that it is worsened by stress. These symptoms were still noticeable to Dr Blows when he interviewed the plaintiff in February 2004 and the plaintiff's evidence is that she still has them now.

19 Another officer, Senior Constable D. Walpole, provided a statement in support of the plaintiff's application for a hurt on duty benefit in relation to this incident. He described the investigation and prosecution as "extensive and protracted" and "something beyond her normal realm of work" (Exhibit A, page 12).

20 The defendant concedes (written submissions, page 3) that the plaintiff suffered from major depression and adjustment disorder with anxiety and depressed mood between some time in 1998 and up until late August 2001, and that her employment with the New South Wales Police Force was a substantial contributing factor for this infirmity during this relevant period.

21 The plaintiff consulted Dr Blows between 22 February and 27 August 2001. She returned to work and was relatively happy working at Merrylands. However, her unchallenged evidence was that she has been taking anti-depressant medication from 2000 onwards, and that the dosage for this was increased on 6 February 2009 after a break from taking medication for several years (this is confirmed in her history to Dr Anderson). That medication appears to have included Lovan and Inderal, as well as Normison. At one stage Dr Blows prescribed Cipramil, but she did not take it. Dr Garne's report of 9 October 2002 refers to the tic but does not identify any medication for it.

22 On 25 November 2003 the plaintiff was trapped in the prisoner's lift at Merrylands Police Station at the basement level for a period of about 15 minutes. There was no prisoner with her at the time. The plaintiff had a panic attack and required treatment. There was a connecting factor between her response to this comparatively minor incident and her pre-existing problems. As Dr Blows noted in his report of 10 February 2004, while he had not seen the plaintiff since 27 August 2001, "her emotional health would remain at risk so a relapse is possible if she was exposed to a similar conflict situation" (Exhibit B, page 22).

23 The plaintiff consulted Dr Boland on 13 September 2004 and his report of the same date (Exhibit B, pages 23-33) confirms that the incident on 25 November 2003 "has led to a recurrence of her previous HOD injury". He notes the plaintiff was taking Lovan, an anti-depressant, prescribed by her general practitioner, as well as Normison for insomnia. He also observed, during the interview, the facial tic and an intermittent right leg twitch (at page 7). He agreed with Dr Strum's earlier diagnosis and added that there was "no doubt in my mind" that the plaintiff's employment should be regarded as a substantial contributing factor. If the claimant had not been a police officer, it was unlikely that she would have developed the condition of major depressive disorder (at page 10).

24 Once again, this is a finding accepted by the defendant.

25 The plaintiff returned to police work. There were no further problems until several incidents of "unprofessional" conduct in May to November 2006. These included a complaint about her dress while attending a work function in a hotel as well as a claim her "hairstyle does not comply with the standards as set out in the Police Handbook" (Exhibit 2, page 2). Two other complaints relate to what one calls using "an authoritative tone of voice, which is aggressive, and bordering on rude" (Exhibit 2, report of Superintendent K. Webb). Superintendent Webb added "It is my assessment that this behaviour particularly manifests itself at times when Sergeant Ambrose is under stress".

26 On 26 September 2006 the plaintiff complained to Dr Garne of "stress ++ at work". She was "teary" and said that complaints about her treatment were "unheeded". He diagnosed "reactive depression".

27 On 25 July 2008 the plaintiff complained of "stress at work", and Dr Garne noted she had "depressed mood". He added "sees counsellor (? psychologist) at work"; and "anticipation anxiety". She was prescribed Inderal 10mg.

28 The occasions when the plaintiff consulted Dr Garne about feeling stressed and seeking medication do not correspond with the 2006 complaints or with the October 2008 "Pink incident" which is discussed in more detail below.

29 The plaintiff next consulted Dr Garne about stress on 6 February 2009 when her complaint was not that she had been disciplined over any incident, or the "Pink incident", but over a confrontation with a junior officer concerning protocol on the Missing Persons Unit film set. She was not only "anxious" but, Dr Garne noted, she was suffering from "tremor", presumably a reference to the facial tic she first suffered approximately 10 years beforehand. He increased her Inderal dose from 10mg to 20-40mg and advised her to continue the Lovan, another drug he had previously prescribed for her.

30 This brings me to the two specific incidents which are submitted by the defendant to be the reason for the plaintiff's injury.

The "Pink Incident"

31 The plaintiff's duties on 19 October 2008 included monitoring pedestrian and vehicular traffic outside a venue where the international artist, "Pink", was to be found. A complaint was made that she left her post to conduct a walkthrough of a licensed premises, where Pink and her entourage were. According to the complaint, made by another police officer, the plaintiff was persistent and unprofessional in asking Pink for an autograph which she eventually received (report of Dr Moore, 24 November 2010).

32 The plaintiff said she had conducted a "walk through" of licensed premises as part of her duties and was introduced to Pink as one of the police officers. She had a conversation with Pink, who not only gave her an autograph, but a kiss on the cheek. The plaintiff was adamant that the circumstances in which she had subsequently been disciplined for this conduct had not contributed to her psychiatric problems in any way.

33 There is no suggestion that any complaint was made by Pink or any person associated with her. The complaint was made by another police officer who was accompanying the plaintiff when she entered the premises.

34 The complaint was sustained. On 4 May 2009, one month before the plaintiff went off on sick leave for the final time, the plaintiff was counselled by Superintendent Ken Hughes and suspended from User Charge events for a period of six months.

35 The importance of the timing in relation to this complaint (which I consider is the only serious complaint made about the plaintiff in her 28-year history as a police officer) is, the defendant submits, that the plaintiff began seeing her general practitioner, Dr Garne, exhibiting symptoms associated with anxiety and depression in late December 2008 and again in February 2009 (written submissions, page 5).

36 The plaintiff's description of these events made it clear that the kind words and kiss on the cheek she received from this international celebrity meant a great deal to her. From her demeanour in the witness box, she was neither distressed nor depressed by the subsequent disciplining she underwent. I accept her evidence that she was not upset by the subsequent complaint, because her pleasurable memories were more important to her than the trouble she got into afterwards. I reject the submission that the plaintiff's response to being disciplined over this issue played any part in causing her symptoms.

The plaintiff's involvement in the Missing Persons Unit

37 The plaintiff was transferred to the Missing Persons Unit on 23 September 2007, after having previously completed a secondment there for two weeks. These duties included supervising a team of four constables, operational investigations and reporting back to her supervisor, Mr McCallum. The Missing Persons Unit was participating in a project with Channel 9 for a television documentary about their activities. This meant that the plaintiff had to liaise with the production company as well as with the filming crew.

38 There were no difficulties until Series 5 of the documentary, when an Ms Dunn, a constable of less than two years' experience, was appointed. This new officer, who was inexperienced, would call in sick and the plaintiff would have to do her work, according to the information the plaintiff gave to Dr Moore (Exhibit 1, page 3). The plaintiff described the job as "stress running off stress" (Exhibit 1, report 14 September 2010, page 4). On 23 December 2012 she wrote to Mr McCallum noting that the police were "placing high demands" on Ms Dunn, who was "at risk". She went on to say:

"As you are aware production teams will push the envelope and in the past we have had to stand firm on policing procedural issues and it is not the role of the police involved in the filming to be the organisations [sic] advocate in ensuring the filming is undertaken according to the deed of contract etc as they have the demands of dealing with the families, conducting the investigations, etc."

39 The plaintiff suggested the appointment of another specialist police officer as well as Ms Dunn. Mr McCallum replied suggesting she discuss the issue with another officer.

40 Mr McCallum was called by the defendant to give evidence.

The evidence of Mr McCallum

41 Mr McCallum, who was called by the defendant, gave evidence of these incidents. His version of events was supportive of the plaintiff's evidence of problems occurring because of the film crew's expectations and the inexperience of the police officer put in charge of the production, Constable Dunn.

42 Mr McCallum made it clear that the plaintiff was not the problem. The difficulty was how to accommodate the demands of the film crew for more exciting footage (which Mr McCallum disparagingly described as "police jumping out of helicopters") and compliance with proper police procedure. Although a television documentary had to have exciting stories, police were genuinely investigating these matters, and care had to be taken not only to protect the investigative process but the distressed relatives on the missing.

43 Mr McCallum described how the television production company dealt directly with the Commissioner of Police on this issue. There was not a formal complaint made in this case, of the kind included in the record of complaints concerning the plaintiff. It is hard to know what the complaint about the plaintiff actually was. In the words of Mr McCallum, there had to be a "scapegoat". This was not a word put to him in cross-examination; it was a description he volunteered. He was told to call the plaintiff in and to tell her that she was being taken off the programme. He said she was tearful and upset when she was told.

44 The decision he was obliged to communicate to her on 19 March 2009, removing her from the Missing Persons Unit and precluding her from future dealings with the television film crew, had nothing to do with transfer, discipline or performance appraisal. Mr McCallum said several times in his evidence that the plaintiff was made a "scapegoat" for the lack of interesting stories being provided for filming. He went on to add that, when the problem did not go away after the plaintiff was transferred, he was the next person to be removed, for the same reason.

The contribution of this incident to the plaintiff's problems

45 All the medical evidence suggests that this incident was a significant issue for the plaintiff. Dr Moore described the contribution of this incident to the plaintiff's condition in her first report as follows:

"5. If there are multiple causes of the psychiatric condition/s, please provide your opinion regarding the extent to which each cause has contributed to each condition/diagnosis. If this can be expressed in percentage terms in your view, would you kindly do so?

It could be said that the premise of filming various working units in an armed service carries a certain amount of risk, where thing will go wrong and people may not behave exactly as they are expected to do. I am also puzzled about the person referred to as Sergeant Ambrose's junior, who was apparently given considerable authority over the project, but later left the project and may have caused the whole project some harm or damage.

I would have thought that, within a number of the units in the service, there would have people [sic] who are experienced in recording official information suitable for the general public. I am also puzzled that such people were not involved in the project. I am unable to express this in percentage terms.

6. Whether, on the available information, the member's employment in the Police Service is considered by you to be a substantial contributing factor to her condition taking into account the nature of the work performed, the particular tasks of that work, the duration of employment, and the member's preceding state of health and his lifestyle activities outside the workplace.

On the available information, Sergeant Ambrose's employment with the police service is considered to be a substantial contributing factor to her condition. The actual work being performed by Sergeant Ambrose is not work which I had been aware of as standard employment within the service. However, this may simply be my ignorance of some of the duties carried out by particular units in the service. Prior to the incidence, Sergeant Ambrose had been healthy and there were no adverse lifestyle activities.

7. Whether there are or have been other competing factors that have caused or have contributed to her condition (e.g. non-work related issues, or work related issues such as transfer, promotion, demotion, disciplinary action, etc).

I am not aware of any other competing factors that have caused or contributed to her condition. If you are aware of any of these factors, please draw them to my attention."

46 Dr Smith states, in his report of 15 August 2012:

"... it is my opinion that her pre-existent psychiatric condition, that has been accepted as hurt on duty, formed the backdrop to the emotional decompensation she experienced as a result of her work with the NSW Police Force and in particular is related to the incidents that occurred on 2 March 1998, 25 November 2003 and the events surrounding the filming of the missing persons unit TV series in 2007. The confrontations she experience in 2009 with another constable who was appointed as a police film supervisor was also significantly distressing."

47 Dr Anderson expresses a view on causation in similar terms in his 2 August 2013 report:

"She suffered hurt-on-duty psychiatric injury as early as 2000 and the history available to me is that there is a continuity of symptoms from that time onwards even though she may have suffered varying levels of symptomatology from that time onwards.

The recent exacerbation or relapse of her condition, circa 2009, is clearly related to her work. She gives a clear account thus. There is no doubt that she was doing her best to follow police policy and procedure conscientiously in er [sic] work in the missing persons unit. She found the intrusions of the reality TV production unit and her dealings with Constable Dunn to be particularly stressful.

In summary she first suffered a hurt on duty condition back in 2000 and it was aggravated in 2009 and continues."

The plaintiff ceases work as a police officer

48 The plaintiff went back to taking antidepressants in March 2009 (Lovan and Inderal) and was on restricted duties because of her knee problems. Surgery on the knee was planned for July 2009. On 2 June 2009 she put in a hurt on duty claim. After the surgery she received a telephone call from the police force, complaining she had not put in a hurt on duty form. The plaintiff told Dr Anderson (Exhibit B, p. 55) that this was the first inquiry she had received. This caused her a great deal of anxiety. The forms were eventually found, she told the court; they had been sitting on someone's desk and overlooked.

49 In February 2010 the plaintiff was told her claim was declined. She told Dr Anderson that this made her feel worse (Exhibit B, p. 55). She took an overdose. At her own expense (the claim having been declined) she admitted herself to St John of God Hospital, where she remained for three weeks, followed by a 15-week outpatient programme.

50 Dr Anderson notes that, as at 13 August 2013 when he saw her, she continues to be symptomatic, and to take psychotropic medicine. She receives pain management from Professor Kennett, a psychologist, because of the input that pain from her work injuries (especially the right ankle, left knee and low back) have into her mood. She has compulsive behaviour patterns and tries to remain at home.

51 The plaintiff was the subject of sustained cross-examination and her credit is a relevant issue.

The plaintiff's credit as a witness

52 Although principally asserting that there was no evidence to support the plaintiff's claim, the defendant also made a substantial attack on the plaintiff's credit as a witness in the course of cross-examination. These issues have not been summarised in the written submissions, but include a claim that the plaintiff's principal problem in 2004 was the death of her father and her failure to consult a psychologist or psychiatrist between 14 September 2004 and 10 June 2009, her reluctance to admit that she was upset at being disciplined for matters in 2000, 2006 - 2007 and, in March and May 2009, for the Missing Persons Unit transfer and the "Pink incident".

53 The plaintiff's answers to these questions during cross-examination were straightforward and frank. Where appropriate she made concessions, such as the concession noted in the defendant's submissions at pages 3 - 4 concerning the plaintiff's interview with Dr Boland. Similarly, she agreed that she had enjoyed working on the Missing Persons Unit programme, a concession which the defendant claims was "inconsistent with the reaction of a person who has been experiencing anxiety and depression" (page 4).

54 These concessions, while demonstrating the plaintiff's honesty, are of little benefit to the defendant. Dr Boland, although informed about the plaintiff's father's death by her, concluded that the lift incident was the triggering factor for the plaintiff's resurgence of her problems, and this finding was accepted by the defendant. Similarly, the plaintiff's admissions of enjoying her work on the Missing Persons Unit and her failure to tell Mr McCallum about feeling anxious and depressed, when seen in the context of her email to Mr McCallum of 23 December 2008 (Exhibit A) do not mean that the plaintiff was not anxious and depressed at all; these admissions show that the plaintiff has not exaggerated her claim to say that she was anxious and depressed all the time.

55 The plaintiff's evidence that she was "disappointed" at being told she was not to have any further interaction with the Missing Persons Unit television series is challenged as being inconsistent with the reaction of a person who has been experiencing anxiety and depression, the inference being that the plaintiff's evidence on this issue detracts from her credibility.

56 I do not agree. Mr McCallum gave very similar evidence about his own reaction when he was removed from this television series for similar reasons. Mr McCallum's dismissive response to the merits of the reasons for the plaintiff's removal, and how she reacted when he told her, support the plaintiff's account. It was implicit in his evidence that he and the plaintiff are officers of many years' standing and familiar with the way in which the police operate.

57 The manner in which a trial judge should approach issues of credit has been explained by Allsop P in MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417 at [134] - [138]. In the present case, the absence of a summary of issues upon which the plaintiff's credit is challenged means that I must infer, from material in the written submissions (to which no oral submissions were added, despite my invitation to do so) the basis upon which the plaintiff's credit is challenged. As Allsop P states at [137], where the truthfulness of a witness is accepted, only so much justification is possible.

58 I accept the plaintiff as a witness of truth on all aspects of her claim. She did not exaggerate. She was not caught out in any lies. She answered questions frankly and directly. Her evidence is corroborated by contemporaneous documents and by the defendant's witness, Mr McCallum.

59 The remaining issue is an analysis of the defendant's medical evidence.

The defendant's medical evidence

60 The defendant's written and brief oral submissions contained no analysis of the medical reports. The response to my inquiry about how to accommodate the reports of Dr Moore and Dr Ahmed with the statutory framework for hurt on duty claims was to request leave to reopen and/or adjourn the proceedings in order to obtain fresh medical evidence.

61 In Nominal Defendant v Kostic [2007] NSWCA 14 the medical issues required the trial judge to analyse a series of medical reports in order to answer the disputed questions of fact upon which liability rested. The Court of Appeal noted that the trial judge did not refer to a number of the medical reports or analyse the differing views taken. There was no suggestion that the trial judge had ignored any such analysis in counsels' closing submissions, and the likelihood is that no such analysis was undertaken.

62 Where counsel does not address on issues such as medical evidence, the trial judge is in a difficult position. I adjourned the hearing early on 17 September at the request of counsel for the defendant so that she could prepare written submissions, and invited her to refer to Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 in relation to issues raised by Mr Ower during the hearing as to these reports. On 18 September 2013, when counsel for the defendant said she had no further submissions, I asked for her response to the analysis of the medical evidence in the plaintiff's outline of submissions. I adjourned the proceedings to give her time to reply. Ms Petrolo made no further submissions, but sought leave to reopen the defendant's case and call Dr Ahmed and Dr Moore who could, from the witness box, give additional evidence. Since Dr Moore was unavailable, required an adjournment.

63 Counsel for the plaintiff, opposing this application, pointed out that the problem with Dr Ahmed's reports was known to the defendant long before the hearing, hence the application to lead further evidence from him in the witness box, made on the first day of the hearing. In addition, no further evidence from Dr Moore could change the fact that Dr Moore conceded the plaintiff's employment made a substantial contribution to her injury.

64 If the defendant had provided a further report from one or both of these doctors, or outlined in general terms the additional evidence that would be given, that would have assisted both the plaintiff and the court and the evidence, although belated, could have been considered. Not only was no such report or information provided, but the defendant did not respond to Mr Ower's analysis of the defendant's medical reports.

65 The circumstances of this application are very similar to Commissioner of Police v Goodwin [2008] NSWCA 345, where an application to amend a statement of claim was made after submissions were completed. The plaintiff in those proceedings made a hurt on duty claim being major depression resulting from traumatic incidents in the course of his police duty. The evidence in relation to the amendment had been raised in the course of the trial and the trial judge had allowed the amendment on the basis that no prejudice was occasioned. Gyles AJA noted that such amendments affect more than just prejudice to the parties, but undermine the finality of litigation and "the effect that reopening cases has on the general administration of justice" (at [17]).

66 In Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 the NSW Court of Appeal considered that forensic diligence was to be encouraged, and that raising matters at trial ("trial by ambush") should be avoided. Reopening a case during submissions to lead oral expert evidence in the manner proposed by the defendant would cause prejudice and delay. An application to lead unparticularised oral expert evidence, made in the course of closing submissions, contravenes not only these principles but also the principles underlying ss 56 - 62 Civil Procedure Act 2005 (NSW).

67 The difficulty I now face is that I am left to analyse these reports without assistance from the defendant other than to ask me to reject the plaintiff's claim. This is on the basis that there is "no evidence" (written submissions, page 1) that between 2007 and 1 June 2009 the plaintiff sought help for or reported any psychiatric injury, a submission Mr Ower has pointed out is both factually incorrect and irrelevant, and on the basis that the plaintiff's problems arise from being disciplined following complaints.

68 Having noted these preliminary matters I set out a summary of the defendant's reports.

Dr Moore

69 Dr Moore's opinion, in her report of 14 September 2010 was that the plaintiff suffers a chronic adjustment disorder with depression and anxiety and disturbance of conduct (page 5) and that her employment with the Police Service was a substantial contributing factor to her condition. It was highly improbable that the injury would have happened for any other purpose.

70 Dr Moore was given further information about the plaintiff for the purpose of her updating report of 24 November 2010. She noted that a check of the complaints system on 7 July 2010 showed 14 associated files within the formal complaints system, three of which were successfully conciliated, one of which had an adverse finding and one of which resulted in an informal conclusion. A search on 7 July 2010 showed six further internal investigation involvements within the current complaints system about Sergeant Ambrose. Those complaints are all in evidence before me (see Exhibit 2) and consist of the matters set out above.

71 Dr Moore concluded that:

"There were a number of disciplinary measures which Sergeant Ambrose had concealed from me at interview and she had, in fact, been subjected to a number of disciplinary interviews and restrictions".

72 This is factually incorrect, as Dr Selwyn Smith (Exhibit B, p. 43) and Dr Anderson (p 52) both note. There is no statement by the plaintiff recorded in Dr Moore's first report that she had not been the subject of complaints. Dr Moore was provided with information by the New South Wales Police Force, the contents of which is set out on page 9 of her first report, which include recommendations as to her obligations to show professional conduct, the "Pink incident", the name plate incident, which was the subject of one of the 2006 complaints, and extensive information about the circumstances in which the Plaintiff ceased work at the Missing Persons Unit. The earlier complaints record (for the period up to 2001) refers to minor matters, only one of which resulted in an adverse finding and occurred shortly before the plaintiff's breakdown in relation to the Constable Finlay incident.

73 Dr Moore's revised opinion is not only based on incorrect facts but does not disclose a logical basis for any change of opinion, or the basis upon which her opinion has changed, as Dr Selwyn Smith and Dr Anderson also note.

74 Dr Smith notes (Exhibit B, p. 44 - 45) that Dr Moore had not referred to most of the medical reports and that as a result, she had not accurately reviewed the plaintiff's past medical history. It is unclear whether Dr Moore has not read them, or considered them unimportant, or whether they were withheld from her.

75 This brings me to the principal difficulty from which Dr Moore's report suffers. Notwithstanding these additional adverse findings, she goes on to say, on page 3:

"From the history available there did appear to be a substantial contributing factor from the worker's duties although it is clear this may well be outweighed by the disciplinary matters under s.11A of the Act." [Emphasis added].

76 This picks up the language of s 4 Workers Compensation Act 1987 (NSW), which provides that:

""Injury" includes a disease contracted by a worker in the course of employment and to which the employment was a contributing factor."

77 Section 9A Workers Compensation Act 1987 (NSW) provides that no compensation is payable unless employment is "a substantial contributing factor to the injury".

78 Thus, if I were to accept Dr Moore's second report, the language employed by Dr Moore would still entitle the plaintiff to claim by reason of the employment amounting to a substantial factor in the infirmity.

79 In addition, the plaintiff already had an established hurt on duty psychological condition, for which she was taking medication and consulting her general practitioner from time to time. The defendant's submission appears to be that consulting her practitioner and taking antidepressant medication was insufficient, and that the plaintiff would need to establish that over this period she was seeking assistance from a psychiatrist or a psychologist. There is no support for this contention in any of the reports, including those of Dr Ahmed.

Dr Ahmed

80 Counsel for the defendant submits, and I accept, that Dr Ahmed's opinion is irrelevant because of his failure to assume the correctness of the certified psychological infirmity (see Murray v Commissioner of Police (2005) 2 DDCR 438). It is clear, from the opening paragraph of his second report, that his first report was prepared either without this information being drawn to his attention or (since he saw the second report of Dr Moore which referred to this) he did not understand its implications.

81 When the defendant tries to rectify this oversight by seeking a second report, Dr Ahmed simply repeated that the plaintiff's symptoms were "not, in my opinion, primarily related to her policing duties". He does not expose his reasons for arriving at this conclusion.

82 Not only was Dr Ahmed not given this information, but it would appear that he was not given most of the plaintiff's medical reports. The value of a medical opinion depends upon the accuracy of the facts upon which it is based. Dr Ahmed says he was given "multiple psychiatric reports"(Exhibit 1, p. 1) but refers only to those of Dr Moore and Dr Strum by name. He does not refer at all to the reports of Drs Boland, Anderson, Smith, Blows or Garne.

83 Dr Ahmed has expressed the same conclusion as Dr Moore concerning the Missing Persons Unit transfer, namely that it was a disciplinary action. I have had the benefit of hearing Mr McCallum's evidence and am satisfied that it was not a disciplinary act but, in Mr McCallum's words, a scapegoating of the plaintiff.

84 In addition, Dr Ahmed concludes that "her infirmity cannot reasonably have resulted primarily from her policing duties". It is not necessary for them to have arisen "primarily" from her duties. Dr Ahmed is applying an erroneous test.

Conclusions concerning the parties' submissions

85 The defendant's submission (written submissions pp 6 - 7) is that the substantial contributing factor to the plaintiff's certified infirmity pursuant to s 9A(1) Workers Compensation Act 1987 was the disciplinary action taken against the plaintiff in 2009 being:

(a) The investigation in relation to the "Pink incident";

(b) The consequential six month suspension of the plaintiff from participating in particular kinds of police work; and

(c) The removal of the plaintiff from having any involvement in the production of the Missing Persons Unit television series.

86 It is further submitted that the disciplinary action taken in each case was reasonable action pursuant to s 11A Workers Compensation Act 1987 (NSW) and therefore no compensation is payable to the Plaintiff with respect to the certified infirmity. Although not included in the written submissions, the amendment of the statement of claim to include a reference to "transfer" appears to suggest that the circumstances in which the plaintiff was directed not to be involved with the television programme Missing Persons Unit constituted reasonable action in relation to transfer and/or discipline.

87 I am satisfied that the "complaints" made against the plaintiff did not cause her certified infirmity. The exacerbation of her condition arises from her ongoing struggle to cope with the stress of Police Force life, in circumstances were minor events such as the lift incident could trigger a resurgence; the final difficulties for her were the transfer from the Missing Persons Unit and the accident she suffered later that same day which required her to undergo knee surgery and remain off work.

88 The second basis upon which the defendant denies that the certified infirmity arose from work-related incidents is that the plaintiff did not accept transfers in relation to the Missing Persons Unit. An amendment was made in the course of the hearing to add this ground, but it is not pursued in closing submissions. In the event that such a submission was overlooked, I consider that the evidence of Mr McCallum that the plaintiff was neither disciplined nor transferred, but made a "scapegoat" in relation to her removal from the Missing Persons Unit, would be the only inference I could draw from the evidence before me.

89 Accordingly, this event does not fall within the ambit of s 11A. Even if it did, such conduct could hardly be considered as reasonable, as counsel for the defendant notes in his outline of submissions at paragraph 25. In addition, any psychological reaction by the plaintiff to the obvious pressures in her duties in the Missing Persons Unit cannot be affected in any meaningful way by the disentitling provision of s 11A.

90 The defendant's submissions do not take into account that the plaintiff already suffered from an established hurt on duty psychological condition for which she was taking medication and consulting her general practitioner, albeit infrequently over the previous five years, and that her condition could be triggered by events at work, including an unfair complaint (Commissioner of Police v Minahan [2003] NSWCA 239) or a transfer (Calman v Commissioner of Police (1999) 59 ALD 366; 167 ALR 91).

91 I accept the description, in the plaintiff's written submissions, of the complaints record as relating to trivial matters such as the plaintiff's tone of voice, as perceived by her superiors, and her hairstyle. I am satisfied that the circumstances in which the plaintiff was disciplined for obtaining an autograph from the celebrity, Pink, played no part at all. I am satisfied that the plaintiff's removal from the Missing Persons Unit was for the reasons stated by Mr McCallum and did not constitute discipline but scapegoating. I am satisfied, taking all of the above evidence into account, that the cause of the plaintiff's certified infirmity is her work as a police officer in accordance with the relevant provisions of the Workers Compensation Act 1987 (NSW) and that the defendant has failed to establish the disentitling provision of s 11A.

Orders

92 The decision of the defendant that the certified infirmity of "adjustment disorder with depressed and anxious mood" was not "hurt on duty" should be set aside.

93 In accordance with Mr Ower's submissions, I propose to accept the notional date in the statement of claim on behalf of the plaintiff, for the certified infirmity, namely 2 June 2009.

94 Accordingly, the orders I make are as follows:

(1) The decision of the defendant's delegate dated 6 March 2012 pursuant to section 10B(3)(a) of the Police Regulation Superannuation Act 1906 (NSW) that the infirmity of "adjustment disorder with depressed and anxious mood" as specified in the Certificate of the Police Superannuation Advisory Committee dated 23 February 2012 is set aside pursuant to s 21 of the Act.

(2) The suffering by the plaintiff of the infirmity of "adjustment disorder with depressed and anxious mood" as specified in the said Certificate was caused by the plaintiff being hurt on duty on 2 June 2009, this being the notional date for such condition.

(3) Defendant pay plaintiff's costs.

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Decision last updated: 11 October 2013