Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Goodwin v Commissioner of Police [2012] NSWCA 379
• Hearing dates: 22 October 2012
• Decision date: 22 November 2012
• Before: Allsop P at [1]; Basten JA at [2]; Young AJA at [110]

Decision

(1) Allow the appeal and set aside the decision of the District Court made 13 December 2011.

(2) Remit the matter to the District Court for reconsideration according to law.

(3) The respondent to pay the appellant's costs in this Court.

(4) The costs of the past and further hearings in the District Court (including the original trial) are to be dealt with by that Court on remittal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL - civil - apprehended bias - matter remitted to primary judge - whether findings in overturned judgment gave rise to reasonable apprehension of bias in subsequent determination of matter - whether complaint based on final judgment must plead actual bias - relationship between bias and failure to exercise jurisdiction - whether absence of reasonable apprehension of bias is a jurisdictional fact - whether complaint of apprehended bias must be dealt with before other grounds; APPEAL - civil - constructive failure to exercise jurisdiction - claim for annual superannuation allowance based on police officer being hurt on duty - whether primary judge failed to deal with issues critical to claim; APPEAL - civil - no evidence - claim for annual superannuation allowance based on police officer being hurt on duty - plaintiff alleged no evidence for finding that there was no link between traumatic events and injury - whether error in failing to make affirmative finding of link between events and injury follows from error in making negative finding - discussion of Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; APPEAL - civil - procedural fairness - whether primary issue determined by adopting an inconsistent conclusion - whether primary judge made finding in relation to a novel issue without notice to the appellant; WORKERS COMPENSATION - claim for annual superannuation allowance based on police officer being hurt on duty - finding that injury did not develop before date of discharge - Police Regulation (Superannuation) Act 1906 (NSW)
• Legislation Cited: District Court Act 1973 (NSW), s 142N; Police Regulation (Superannuation) Act 1906 (NSW); Supreme Court Act 1970 (NSW). s 69
• Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 136; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [1006] HCA 55; 229 CLR 577; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; Goodwin v Commissioner of Police [2010] NSWCA 239; Goodwin v Commissioner of Police (No 2) [2011] NSWCA 90; Huluba v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 518; Lujans v Yarrabee Coal Company Pty Ltd [2008] HCA 51; 83 ALJR 34; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390; LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 289 ALR 244; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264; Shimokawa v Lewis [2009] NSWCA 266
• Texts Cited: DSM IV - TR (Diagnostic and Statistical Manual of Mental Disorders, 4th ed, Text Revision)
• Category: Principal judgment
• Parties: Daniel Goodwin (Appellant); Commissioner of Police (Respondent)
• Representation: Counsel: Mr A Naylor (Appellant); Mr T Ower (Respondent); Solicitors: Kim Smith and Associates (Appellant); Henry Davis York Lawyers (Respondent)
• File Number(s): CA 2012/77702

Decision under appeal

• Jurisdiction: 9101
• Before: O'Toole DCJ
• File Number(s): DC RJ04719/01

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant was an officer in the New South Wales Police Service. He attended a number of traumatic events in the course of his service, including fatal motor vehicle accidents. On 5 July 2001 the appellant was discharged on medical grounds, suffering from a condition described as "major depression". On 4 July 2001 a delegate of the respondent determined that the condition was not caused by being "hurt on duty". As a result the appellant was not entitled to an annual superannuation allowance.

On 18 December 2009, the appellant's challenge to that determination was dismissed by the primary judge. On 15 September 2010 this Court set aside the decision of the primary judge and remitted the matter to the District Court. Two issues for determination were whether the appellant was suffering from post-traumatic stress disorder and if so, whether his major depression was a consequence of that disorder.

The appellant filed a motion in the District Court seeking that the primary judge disqualify herself from hearing the remitted matter on the ground that there would otherwise arise a reasonable apprehension of pre-judgment. On 23 May 2011 the primary judge dismissed the motion.

On 13 December 2011 the primary judge confirmed the decision of the delegate of 4 July 2001. The primary judge found that although the appellant suffered from post-traumatic stress disorder, that disorder had developed no earlier than February 2003 and that it could not have led to major depression at the time of his discharge.

The appellant appealed to this Court pursuant to District Court Act 1973 (NSW), s 142N. The appeal was limited to an error in point of law. The initial grounds of appeal alleged that there was no evidence for critical factual findings, denial of procedural fairness, and error in refusing the recusal application. With the leave of the Court, the appellant added a further ground of appeal, which sought to identify a constructive failure to exercise jurisdiction.

The issues for determination on appeal were whether:

(i) the primary judge erred in refusing the recusal application,

(ii) there was no evidence for the finding that the post-traumatic stress disorder did not develop prior to February 2003,

(iii) the primary judge denied the appellant procedural fairness by failing to give notice of a proposed finding that the post-traumatic stress disorder did not develop prior to February 2003, and

(iv) the primary judge constructively failed to exercise the jurisdiction of the District Court.

The Court held (per Basten JA, Allsop P and Young AJA agreeing), allowing the appeal:

In relation to (i)

1. The test of reasonable apprehension of bias cannot rely on the final judgment. Where a party seeks to rely on the final judgment, following an earlier recusal application based on a reasonable apprehension of bias, it will usually be necessary to plead actual bias. Actual bias was not relied on in the present case: [15]

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 applied.

2. It was not necessary to decide the complaint of alleged apprehended bias. There will be error of law where there has been a breach of procedural fairness or a constructive failure to exercise jurisdiction. Bias can be seen as a category of failure to exercise jurisdiction, where the cause of the failure can be identified as a preconceived opinion. Whether the appellant succeeds on the basis of apprehended bias or failure to exercise jurisdiction, the result will be the same: [16], [18]-[19], [21]

LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 289 ALR 244 applied; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 discussed; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 distinguished.

In relation to (ii)

3. The critical element to the appellant's claim was the connection between the work-related traumatic events and his post-traumatic stress disorder. To succeed in his claim, the appellant needed to establish, affirmatively, that such a link existed. The failure of the primary judge to accept the link could not be challenged as legally erroneous on the basis that there was no evidence to support the negative finding that the link did not exist: [54]-[55]

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 applied.

In relation to (iii)

4. The primary issue, of which the appellant was fully aware, was whether the traumatic events constituted a substantial contributing factor to the major depression on the basis of which he was discharged. That critical issue cannot be recast as a different question, namely whether there was post-traumatic stress disorder before February 2003, so as to complain of a novel issue of which the appellant had no notice: [58]

In relation to (iv)

5. The absence of a diagnosis of post-traumatic stress disorder prior to July 2001 did not necessarily mean that the appellant was not suffering from the disorder at that time. If the traumatic events had the consequences the appellant described at the time they occurred, to reject his claim it was necessary for the Court either to reject his evidence in that respect or to indicate why that which he described did not involve the disorder which had been identified: [61], [79]-[80], [88]

6. In reaching a conclusion that post-traumatic stress disorder was caused by the appellant's marital break up and the death of his sister, some explanation was required as to the basis for that conclusion in circumstances where the diagnostic criteria expressly excluded that possibility: [62], [82]

7. Whatever the cause of the post-traumatic stress disorder, it apparently involved events which pre-dated the diagnosis by at least four years. To reach a conclusion of delayed onset, the primary judge had to grapple with the expert evidence that delayed onset was extremely rare and was not reflected in the present circumstances. That evidence was not addressed, let alone rejected. Further, the finding that there was no contemporaneous diagnosis required the rejection of the evidence of the clinical psychologist who saw the appellant between 1999 and 2001. The primary judge did not reject his diagnosis: [63]-[64], [80], [100]

Judgment

1 ALLSOP P: I agree with Basten JA.

2 BASTEN JA: For a period of 14 years from 26 June 1987, Mr Daniel Goodwin (the appellant) was an officer in the New South Wales Police Service. On 5 July 2001 he was discharged on medical grounds, suffering from a condition described as "major depression". He is entitled to an annual superannuation allowance under the Police Regulation (Superannuation) Act 1906 (NSW) ("the Superannuation Act") if the medical condition for which he was discharged resulted from him being "hurt on duty", but not otherwise. On 4 July 2001 a delegate of the Commissioner of Police determined that his infirmity was not caused by being hurt on duty. Disturbingly, in the case of a man suffering a serious mental illness, the correctness of that determination remained unresolved for a decade after his discharge.

3 The appellant was entitled to apply to the Compensation Court challenging the decision of the Commissioner's delegate. He took that step. The Compensation Court was later abolished and its jurisdiction transferred to the District Court. On 18 December 2009, the primary judge (O'Toole DCJ) determined that the decision of the Commissioner be confirmed. From that decision an appeal was brought to this Court asserting error in point of law: District Court Act 1973 (NSW), s 142N. On 15 September 2010, this Court upheld the appeal and set aside the decision of the District Court: Goodwin v Commissioner of Police [2010] NSWCA 239. The matter was remitted to the District Court for reconsideration in accordance with the decision of this Court.

4 When the matter returned to the District Court, a dispute arose as to whether it should be reconsidered by the same judge (O'Toole DCJ) or by another judge. Because an inference was sought to be drawn by the respondent from the language of the remittal order, favouring return to the same judge, an application was made to this Court to vary the terms of the order. The Court held that the terms of the order were neutral in that respect and dismissed the motion: Goodwin v Commissioner of Police (No 2) [2011] NSWCA 90.

5 The difference of opinion as to whether the reconsideration should occur before O'Toole DCJ or a different judge remained a live issue. The appellant filed a motion in the District Court seeking that O'Toole DCJ disqualify herself on the ground that there would otherwise arise a reasonable apprehension of pre-judgment. On 23 May 2011 the primary judge dismissed the motion.

6 The proceedings were then listed for hearing before O'Toole DCJ on 24 June 2011. At the commencement of the hearing, the parties indicated a common position that the matter should be dealt with by reference to the evidence heard by the primary judge on the previous occasion. Neither party sought to adduce any further evidence, either oral or documentary. There was no further cross-examination of any witness called on the prior occasion. The matter thus proceeded by way of oral argument and further written submissions prepared specifically for that hearing.

7 On 13 December 2011 the primary judge delivered a judgment confirming the decision of the delegate of 4 July 2001. On 9 March 2012 the appellant filed a notice of appeal challenging both the findings of the primary judge supporting the ultimate order and her decision to dismiss the recusal application.

Issues on appeal

(a) initial grounds

8 As counsel for the appellant noted at the outset of the hearing in this Court, a number of the grounds set out in the notice of appeal did not raise errors "in point of law", within the circumscribed limits of s 142N of the District Court Act. Putting to one side the recusal application, he accepted that challenges to findings of fact, as formulated in the notice of appeal, could succeed only if they were unsupported by any evidence (conventionally referred to as a "no evidence" ground): see Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390. The concession was sound so far as it went, but, for reasons which will be explained, it did not go far enough.

9 The grounds of appeal, even omitting the parts which were not pressed, were awkwardly expressed. For the sake of clarity, they may be reformulated as follows, namely that the primary judge erred in finding that:

(a) the post-traumatic stress disorder (PTSD) from which the appellant suffered did not commence until about 6 February 2003;

(b) the PTSD was not caused by traumatic incidents in the course of police work;

(c) the PTSD was caused by other events, including the death of the appellant's sister;

(d) there was a denial of procedural fairness in finding, without notice that such a finding was in contemplation, that the appellant's PTSD commenced on or about 6 February 2003;

(e) the major depression for which the appellant was discharged was not causally related to the PTSD, and

(f) none of the traumatic incidents suffered in the course of police activities, nor a combination of those events, was a substantial contributing factor to the certified infirmity of major depression.

(b) recusal ground

10 On 3 May 2011 the appellant filed a motion seeking that the primary judge "disqualify herself from any further hearing of the matter on the ground of reasonable apprehension of bias." On 23 May 2011 the primary judge rejected the application. The challenge to the rejection of the recusal application was formulated as an appeal from that judgment. The grounds in the notice of appeal asserted that the primary judge had "purported to make findings of causation in relation to the Appellant's certified infirmity of 'Major depression'" in her judgment of 18 December 2009 and would be required to make findings in respect of the same issue on the further hearing. That circumstance, it was contended, might have led a fair-minded observer to apprehend that the primary judge might not be inclined to depart from the finding of causation already made.

11 The fact that a court or tribunal may be required to revisit an ultimate conclusion, having erroneously disposed of the matter on a prior occasion, is an almost inevitable consequence of a successful appeal. It does not follow that in all such cases the first trial judge will be unable, on the ground of pre-judgment, to consider the matter again. Much will depend upon the particular issues to be addressed and the nature of the error identified by the appellate court.

12 Where a judge has rejected a recusal application, but in circumstances where the applicable legal principles have been correctly identified, the challenge is, in effect, brought against an evaluative judgment based on all the circumstances of the case. Abstractly, that may be characterised as a challenge to findings of fact, unavailable as a ground of appeal where the appeal is limited to points of law. On the other hand, the absence of a reasonable apprehension of bias may be a jurisdictional fact, absent which the trial judge lacks legal authority to dispose of the matter.

13 That issue might have been avoided, or at least it might have arisen in a different form, had the proceedings been brought in the original jurisdiction of the Court in exercise of its supervisory jurisdiction. In fact, the notice of appeal sought to invoke s 69 of the Supreme Court Act 1970 (NSW), which provides for relief of a kind available on judicial review. However, neither the parties to the proceeding nor the grounds were identified or formulated in a manner appropriate to the supervisory jurisdiction. Accordingly, the matter should be dealt with by way of an appeal only.

14 In her reasons for rejecting the application, the primary judge noted that the basis on which this Court set aside her earlier judgment was a failure to address certain critical issues. There was, she concluded, no reasonable basis for apprehending pre-judgment in respect of issues which she had not yet addressed. The reasons continued at [30]:

"I have made no adverse finding regarding Mr Goodwin's credit. In any event, it is not suggested that any question of his credit may arise regarding the matters, which the Court of Appeal's judgment requires this Court to reconsider."

15 The test of reasonable apprehension of bias, formulated by reference to how a fair-minded bystander might view the matter before determination of the case, cannot rely on the final judgment: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [67] (Gummow ACJ, Hayne, Crennan and Bell JJ). Where a party seeks to rely upon a final judgment, following an earlier recusal application based on a reasonable apprehension of bias, it will usually be necessary to plead actual bias: Michael Wilson & Partners at [65] and [68]. Actual bias was not relied upon in the present case and it would be necessary, therefore, to put to one side any concerns arising from the flaws in the approach adopted by the primary judge, as revealed in the final judgment, in order to address the challenge based on apprehended bias, raised at the commencement of the second hearing below. However, the appellant is entitled to have the decision set aside on grounds which have not yet been noted, relating to a constructive failure to exercise jurisdiction. In these circumstances, the preferable course may be to address the further grounds and the proper approach to an appeal from an unsuccessful recusal application need not be determined.

16 However, in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577, at [117] Kirby and Crennan JJ stated:

"An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided."

17 These comments should be understood in the context in which they arose. The High Court was dealing with an appeal from a judgment of the Full Court of the Federal Court. The substantive issues involved a dispute between the parties as to copyright in architectural plans. As explained by Gummow ACJ at [2]:

"If the bias submissions were to succeed, the remedy would be a retrial. If the copyright submissions were to succeed, the Full Court would itself provide the orders which should have been made and there would be no occasion to order a retrial."

18 The present case is not brought by way of general appeal, but one limited to a point of law. On whichever ground the appellant succeeds (assuming that he should succeed both in respect of an apprehension of bias and on a constructive failure to exercise jurisdiction) the relief will be the same, namely the setting aside of the decision below and remittal of the matter to the District Court for a further hearing. Further, on either basis the appellant would have established, in the language of Kirby and Crennan JJ, "a defect in the administration of justice" for which a remedy will be provided.

19 There will be error of law where there has been a breach of procedural fairness or a constructive failure to exercise jurisdiction. In relation to the first concept, apprehended bias is, like procedural unfairness, an element of natural justice. In relation to the latter, as explained by Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088:

"[24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. ...

[25] The question remains ... whether what occurred, either characterised as a failure to accord natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction, entitles Mr Dranichnikov to relief under s 75(v) of the Constitution."

20 Gummow and Callinan JJ concluded that in the circumstances there had been a failure to "exercise jurisdiction in respect of a live application validly made to it": at [32]. Kirby J, at [88], adopted a similar approach:

"Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way."

21 There are different ways of articulating substantially similar complaints about apparently flawed decision-making. Two critical elements engaged by the concept of bias based on pre-judgment are, first, that the tribunal has a preconceived notion relevant to an issue in dispute and, secondly, that it will decide the case by reference to that preconception, in disregard of the evidence and submissions: see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [183]-[186] (Hayne J). Thus, bias can be seen to be a category of failure to exercise jurisdiction, where the cause of the failure can be identified as a preconceived opinion. A complaint of reasonable apprehension of bias has the same conceptual underpinning, although it differs from actual bias by turning the focus from an analysis of the actual course of decision-making to an assessment of the context in which it will occur: Jia at [184].

22 Similarly, acting without evidence or without giving reasons "may lay a foundation for an argument that the decision-maker moulded his or her fact finding to reach a particular result" and that "the decision reached was capricious, arbitrary, made according to humour or private opinion rather than reason and justice, or that it was unreasonable": NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264 at [12] (Allsop J, Moore and Tamberlin JJ agreeing). Putting to one side the distinction between actual bias and an apprehension of bias, it is apparent that a range of circumstances may lead a decision to be clothed in a variety of pejorative epithets, all of which describe a failure to exercise jurisdiction, sometimes called a "constructive" failure, because the tribunal has purported, but failed, to do that which is required.

23 In LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 289 ALR 244 the Full Court of the Federal Court (North, Logan and Robertson JJ) reviewed a decision of the Administrative Appeals Tribunal, which had simply adopted the submissions of one party without acknowledging what it was doing. The Full Court stated at [5]:

"Of themselves, these circumstances would give rise to a serious concern that the Tribunal had failed to bring its own mind to bear on the issues before it and thus that it had constructively failed to exercise its jurisdiction."

24 The Court noted that in Huluba v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 518 Beazley J had held that "procedural fairness required the second decision-maker to apply an independent mind to the decision-making process": at [89]. Accepting that the use of standard paragraphs demanded close scrutiny of the decision, the Full Court in LVR stated at [91]:

"In our view, speaking generally, it is more appropriate to consider these matters by reference to whether or not the tribunal has discharged its statutory role, its jurisdiction to review the decision before it, rather than to approach it by reference to procedural fairness or the inflexible application of policy or acting under dictation. In our view the fundamental question is whether there has been a constructive failure on the part of the decision-maker to perform its allotted task. In a particular case it may also be that adopting submissions has the consequence that the tribunal has failed to disclose its reasoning."

25 In a case where an appellant alleges error in fact-finding, it is necessary for the appeal court, in carrying out its statutory function, to engage with the evidence in relation to the area in dispute: Lujans v Yarrabee Coal Company Pty Ltd [2008] HCA 51; 83 ALJR 34 at [29]-[31]; Shimokawa v Lewis [2009] NSWCA 266 at [176]-[182] (Giles JA, Beazley and Ipp JJA agreeing). The same principle applies to a trial court. In this case there is a real issue as to whether the primary judge fulfilled that function. If there has been a miscarriage of justice, there must be a retrial. It is likely to be of greater assistance to the final resolution of these long-extended proceedings to address the substantive errors of approach.

(c) constructive failure to exercise jurisdiction

26 In the course of the hearing of the appeal a question arose as to whether the errors identified by the appellant were properly characterised as "no evidence" grounds or as a constructive failure on the part of the primary judge to exercise the jurisdiction vested in her by law. With leave of the Court, the appellant subsequently filed a further amended notice of appeal which added a fourth ground in the following terms:

"4 The trial Judge erred in point of law by constructively failing to exercise jurisdiction.

Particulars

(a) The trial Judge failed to take into account material and uncontested evidence that was relevant to the date of onset of the Appellant's PTSD injury and that needed to be rejected or explained in light of the trial Judge's implicit finding that the PTSD injury did not onset before February 2003, specifically:

(i) the Appellant's unchallenged evidence of symptoms consistent with the PTSD diagnostic criteria contemporaneous with the duty-related traumatic incidents and prior to the Appellant's discharge from the NSW Police Force on 5 July 2001;

(ii) Dr Sutton's diagnosis of PTSD before the Appellant was discharged from the NSW Police Force;

(iii) the opinions of both Dr Klug and Dr Lovric that the duty-related traumatic events caused the PTSD injury;

(iv) the absence of any evidence in relation to the Appellant that onset of the PTSD injury was delayed.

(b) By making a finding that was not open on the evidence that the PTSD injury did not onset before February 2003, the trial Judge was deflected from a proper fact-finding process in relation to the medical evidence relevant to when the Appellant was discharged from the NSW Police force on 5 July 2001."

27 Leave was also extended at the hearing to allow the respondent to file further submissions directed to the new ground 4. The respondent availed himself of that leave, further submissions being lodged on 30 October 2012.

28 The challenge to the decision below, as encapsulated in ground 4, should be upheld. The unfortunate result is that there must be a further hearing before the District Court. The result is "unfortunate" in the sense that, more than a decade after he was discharged from the police force suffering a significant mental illness, the entitlement of the appellant to an annual superannuation allowance in respect of his disability remains unresolved. Whatever the final, legally sustainable, outcome, the lapse of time is to be deplored. It is, however, neither necessary nor possible for this Court to assign responsibility for the delay.

Factual background

29 It is sufficient at this stage to provide a general outline of the background circumstances, before addressing the central issues. Further references will be given to the evidence relevant to particular issues.

30 From his attestation as a probationary constable in 1987, the appellant performed general duties at police stations in western New South Wales, including at Forbes and Parkes and later Bowral in the Southern Highlands. The primary judge accepted that during the years 1987-1995 the appellant was involved in a number of traumatic incidents, including several fatal accidents involving motor vehicles. The primary judge also accepted that the appellant's marriage broke down during the course of 1997. The appellant was found to have irregularly taken a six-pack of beer from a young offender and become mentally unstable, resulting in an attempted suicide by overdosing on medication, leading to treatment for depression. In May 1997 a senior officer removed the appellant's appointments and suspended him from police duties. During the same period, the appellant underwent knee surgery which left him physically incapacitated for some months. On 12 August 1997 he was certified by a police medical officer as fit for full-time police duties.

31 On 29 March 1998 the appellant's older sister, who had played a significant role in keeping the family together after the death of their parents (when the appellant was 12 and 13 and years of age respectively) died of a heroin overdose. The appellant was not present at her death, but identified her body and arranged and spoke at her funeral.

32 In about September 1997, the appellant had resumed cohabiting with his wife, but in January 1999 he left again, believing that she was having a relationship with a fellow police officer at Bowral police station. A few days later he was involved with an altercation with a driver on the Hume Highway, as a result of which a complaint was made and his pistol was confiscated. Two days later, on 5 February 1999, he confronted his wife at Bowral Courthouse and threatened to shoot the officer with whom he believed her to be having an affair. He was admitted to hospital suffering depression and was certified as incapable of undertaking normal police duties. Shortly thereafter he was suspended from the police force and did not resume duties before being discharged on medical grounds, the discharge being effective from 5 July 2001. In September 1999 the appellant met a woman who, three years later in September 2002, was to become his second wife, Mareika Mary-Anne Goodwin.

33 The medical evidence was of central importance to the assessment of the appellant's condition at the time of his discharge. His general practitioner from May 1996 to March 2006 was Dr Penny Knowlden. Some of her notes and reports were not in evidence, but it is clear that she diagnosed a depressive illness at an early stage. Dr Knowlden referred the appellant to Dr Roger Wenden, a psychiatrist practising in Bowral and Goulburn, in early 1997.

34 The appellant saw three psychologists during the critical period from 1997 to about 2001. The first was Mr Andrew Schmidt, who practised in Bowral. He saw the appellant at the request of Ms Fisher, an officer in the Police Psychology Section. Mr Schmidt had five sessions with the appellant, commencing in July 1998 and apparently continuing through September 1998.

35 The second psychologist was Dr Sara Murray, who also saw the appellant at the request of Ms Fisher. They had five sessions between March and July 1999.

36 The third psychologist, to whose opinion further reference will be made below, was Dr Jeffrey Sutton who, between 1999 and 2003, practised in Goulburn. There was an issue as to precisely when the appellant saw Dr Sutton, but Dr Sutton recalled seeing the appellant and identifying him as having symptoms of PTSD.

37 The appellant saw several psychiatrists. Of critical importance to the appellant's case was the evidence of Dr Peter Klug. Dr Klug, a consultant psychiatrist, first saw the appellant in August 1999, at a time when he was facing criminal charges arising out of the two incidents of misconduct referred to above. Dr Klug diagnosed the appellant as suffering from depression, a condition which he recognised as present for the preceding two years (that is from 1997). On 26 August 1999 he provided a report to the appellant's solicitors diagnosing a "recurrent major depressive disorder".

38 Dr Klug saw the appellant again in September 2000. At that stage the appellant was no longer working in the Police Service and had, with the agreement of the Service, commenced work as a bricklayer.

39 As the primary judge noted at [353], Dr Klug reported on 2 November 2000 that the appellant "appeared to be depressed and was reluctant to talk about his police work and the associated stresses". Dr Klug noted that the appellant "generally adopted a stoic attitude". Importantly, Dr Klug noted that the symptoms the appellant described on 7 September 2000 "included significant post-traumatic stress-related symptoms", as noted by the primary judge at [354].

40 Dr Klug was later to change his opinion as to his initial diagnosis, concluding that there had always been symptoms of PTSD which he had missed on the earlier occasion.

41 In 2000, the appellant saw Dr Tom Norris, who encouraged him to apply for a medical discharge. Dr Norris was not, however, a psychiatrist and advised the appellant to obtain relevant psychiatric opinions to support such an application. He relied on the first report of Dr Klug.

42 In March 2002, some eight months after his discharge, the appellant saw Dr Christopher Canaris, a consultant psychiatrist. No report or notes appear to have been kept in respect of that consultation. However, on 6 February 2003, having seen the appellant for the second time, Dr Canaris described the appellant's presentation as "strongly consistent with" PTSD, with the comment that "police work seems to be the principal contributor": referred to by the primary judge at [434].

43 In December 2005 the appellant saw Dr Clifford Boland, a consultant psychiatrist, at the request of State Super (presumably for the respondent). Dr Boland also diagnosed PTSD. By that time, it appeared that the appellant was able, although not without distress, to recount his work as a police officer "dealing with dead people a lot of the time" and noted that he "really hated doing fatals ... I remember all of them - I remember the weather - I remember the people and I remember who I worked with at this time": Judgment at [440]. Nevertheless, Dr Boland did not believe that the appellant was suffering from PTSD on 5 July 2001.

44 Finally, the appellant saw Dr Kathryn Lovric, consultant psychiatrist, also at the request of the respondent, in May 2007. Hers was the principal psychiatric report relied on by the respondent in these proceedings. She too diagnosed PTSD. Although, in the words of the primary judge, she "assumed that Dr Jeff Sutton had assessed Mr Goodwin sometime between 1999 and 2001, and 'had made a diagnosis of post-traumatic stress disorder' at that time", she apparently was not prepared to rely upon that diagnosis. She did, however, accept the PTSD symptoms apparent to Dr Klug in September 2000 and concluded they constituted the development of "symptoms but not a clinically significant disorder": at [469].

Previous determination

45 In upholding the appeal from the first determination, made in 2009, this Court stated, under the heading "Failure to decide central issues":

"[23] The critical elements in the case put by the appellant required findings as to:

(a) the occurrence of the traumatic events pleaded in paragraph 3 of the amended statement of claim;

(b) the assertion that the appellant suffered from PTSD;

(c) the assertion that the PTSD was a consequence of undergoing the traumatic events;

(d) the assertion that the major depression was a consequence of the PTSD, and

(e) a conclusion that the traumatic events were substantial contributing factors to the major depression, so as to establish the necessary causal link.

[24] The appellant said that a shorter variant of that train of connections was also proposed, namely that the traumatic events directly contributed to the major depression, rather than through the intermediate step of causing PTSD."

46 In respect of the first element, the Court inferred that there was an implicit finding that the events as pleaded and described had in fact occurred: at [26]. However the reasons continued:

"The significance of the absence of any express finding, let alone any recognition of the nature and potential effects of the events, suggests that her Honour did not treat their occurrence as of critical significance in determining the application before her."

47 In respect of the second element noted by this Court, the Court referred to the submissions which had been made in the District Court basing the appellant's claim on a diagnosis of PTSD and on the evidence supporting it. The Court then referred to three critical passages in the judgment below:

"[114] Dr Klug's oral evidence contextualised his cumulative advice to [the solicitors] and the histories he had received piecemeal when Mr Goodwin was 'profoundly distressed' by 'an intense effort to talk about distressing memories' .... Those histories corroborate Mr Goodwin's evidence in cross-examination and the records of his police service, made by the Commissioner of Police and NSW Police Service.

...

[120] In September 2000, Mr Goodwin appeared to be depressed and 'was reluctant to talk about his police work and the associated stresses' but he was 'functioning reasonably well' intermittently. Mr Goodwin said that 'in retrospect', he had grown to 'hate dead people ... can remember them all ...'. Dr Klug did not ask about those 'dead people' nor about the 'heaps of fatals', which Mr Goodwin had mentioned in August 1999. Dr Klug hypothesised that Mr Goodwin's anxiety, excessive sweating, irritability, nightmares and hypervigilance were symptoms of a post-traumatic stress disorder ...

[121] On 2 November 2000, Dr Klug surmised that Mr Goodwin's major depressive disorder had been superimposed upon a chronic post-traumatic stress disorder."

48 The Court then noted that the primary judge had "made no findings at that stage as to whether or not she accepted Dr Klug's opinion that the appellant was suffering from post-traumatic stress disorder caused by the traumatic events": at [32]. It was unsurprising, the Court further reasoned, that the primary judge had not considered whether the PTSD was a consequence of the traumatic events, whether the depression was a consequence of the PTSD and whether the traumatic events were therefore substantial contributing factors to the major depression.

The initial grounds

49 In reconsidering the evidence, the primary judge went to great lengths (more than 500 paragraphs extending over nearly 100 pages) to be comprehensive. She addressed each of the critical elements identified by this Court in the earlier appeal judgment. Nevertheless, as the appellant contends by way of new ground (4), there is a real issue as to whether the statement of conclusions was sufficient to address the critical issues raised by the evidence. Before turning to that ground, it is convenient to deal first with the "no evidence" grounds which remain for determination.

(a) no evidence: cause of PTSD

50 In finding that the traumatic events occurred, the primary judge stated that this finding "is common ground or undisputed and requires no elaboration": at [478]. She then turned to the second element, namely the assertion that the appellant suffered from PTSD. She stated at [480]:

"I find that he did. However, I am not satisfied that this occurred earlier than February 2003."

51 The appellant alleged that her Honour's ultimate finding that the traumatic events encountered in the course of his police work did not cause the PTSD was dependent upon the affirmative finding that the PTSD did not pre-date 6 February 2003. Although that was in effect a negative finding (namely that there was no PTSD prior to that date) the appellant treated it as susceptible to a challenge that it was made without evidence.

52 The second finding challenged for want of support in the evidence was that set out by the primary judge at [499] in the following terms:

"Dr Klug's hypothesis that the 'presentation' of a post-traumatic stress disorder dates from about 'March and February 2003' is consistent with his evidence that specific events, defined in DSM IV, can cause PTSD. On the basis of that evidence, I do not infer that the traumatic events ... as distinct from later traumatic events - including [his sister] Judy Goodwin's death - were a substantial contributing factor to Mr Goodwin's post traumatic stress disorder ...."

53 It will be necessary to return in due course to what the primary judge meant by this passage. The meaning of the first sentence is unclear, as is its connection with the second sentence. The second sentence is unclear because there is no necessary conflict between finding that two sets of events each made a substantial contribution to a particular condition. Nevertheless, for the purpose of this ground, the appellant concedes that the work-related traumatic events were rejected because there was an alternative explanation available, namely the later events, including the death of the appellant's sister. That conclusion is challenged on the basis that there was no evidence to support a finding that the death of the appellant's sister caused his PTSD.

54 The analysis underlying the no evidence grounds is flawed. The critical element for present purposes was the connection between the work-related traumatic events and the appellant's PTSD. To succeed in his claim, the appellant needed to establish, affirmatively, that such a link existed. The failure of the primary judge to accept the link could not be challenged as legally erroneous on the basis that there was no evidence to support the negative finding that the link did not exist. Even if the judge made the negative finding, unjustifiably, it did not follow that there was legal error in failing to make the affirmative finding which was necessary for the appellant's claim to succeed.

55 The error was identified with clarity by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, a case in which a worker's appeal against a failure of the Workers' Compensation Commission to award compensation was, as in the present case, limited to a question of law. Glass JA stated at 156D:

"To the legally uninitiated there is a spurious validity in a submission that it was not open to the judge to find that the applicant was not injured since there was no evidence to that effect. If a respondent employer can argue a no evidence point, why cannot the applicant worker? The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence. Finally, the burden of proof to which the applicant is subjected cannot be masked by the use of double negatives. A purported ground of appeal which submits that there was no evidence that or it was not open to find that the applicant was not injured constitutes a futile attempt to convert a question of fact into a question of law by inverting the onus of proof."

56 In some cases, the appellant worker may not have to assume that the evidence in favour of there being an injury is accepted, because the reasoning of the tribunal will demonstrate that it has in fact been accepted. In this sense, acceptance means satisfaction on the balance of probabilities that the fact in issue had been made good. The existence of the appeal will generally demonstrate that a finding to that effect was not made. On the other hand, there may be circumstances where an affirmative finding has been disregarded as irrelevant or insufficient because the tribunal has asked itself the wrong question. As Glass JA recognised, that constitutes an error of law, albeit a different form of error: 156C.

57 Applying this reasoning, the appellant's no evidence grounds must fail.

(b) procedural unfairness

58 The complaint of procedural unfairness must fail on the same basis. The common ground between the parties extended not only to the happening of the traumatic events, but also to the diagnosis of the appellant as suffering from PTSD by the time of hearing. The primary issue, of which the appellant was fully aware, was whether the traumatic events constituted a substantial contributing factor to the major depression on the basis of which he was discharged. The primary route to that conclusion was the proposed finding that he suffered from PTSD as a co-morbidity with the major depression. To that end, the timing of his PTSD was of critical importance. That critical issue cannot be recast as a different question, namely whether there was PTSD before February 2003, so as to complain of a novel issue of which the appellant had no notice. The specification of the earliest date at which PTSD was found to have arisen was no more than an explanation of why the Court was not satisfied that it had arisen on or before the critical (earlier) date. This ground must also be rejected.

Constructive failure to exercise jurisdiction

(a) evidential context

59 The primary judge dismissed the appellant's claim on three broad bases, namely:

(1) the appellant was not diagnosed as suffering from PTSD until February 2003, some 18 months after he was discharged from the police force;

(2) the PTSD was not caused by the traumatic events encountered during his police work, and

(3) the work-related traumatic events were not a substantial contributing factor with respect to the major depression from which he suffered in July 2001, which was caused by personal domestic circumstances.

60 It will be necessary to explain the process of reasoning by which the primary judge reached the conclusions set out above. However, as noted in the earlier appeal in relation to the first trial, there was a failure to apprehend the significance of the evidence given by the appellant as to the nature and effects on him of the work-related traumatic events. What was still absent from the reasoning of the primary judge may be summarised in the following terms.

61 First, the absence of a diagnosis of PTSD prior to July 2001 did not necessarily mean that the appellant was not suffering from PTSD at that time. Rather, it may have reflected the fact that he did not reveal to a psychologist or psychiatrist the effects which he described later. If in fact, as he said in his evidence, the traumatic events had the consequences he described at the time they occurred, to reject his claim it was necessary for the Court either to reject his evidence in that respect or to indicate why that which he described did not involve the PTSD which Dr Klug had identified.

62 Secondly, in reaching a conclusion that PTSD was caused by his marital break up and the death of his sister, some explanation was required as to the basis for that conclusion in circumstances where the diagnostic criteria expressly excluded that possibility.

63 Thirdly, whatever the cause of the PTSD, it apparently involved events which pre-dated the diagnosis by at least four years. To reach a conclusion of delayed onset, the Court had to grapple with the evidence of Dr Klug that delayed onset was extremely rare and was not reflected in the present circumstances.

64 Fourthly, the finding that there was no contemporaneous diagnosis involved rejection of the evidence of Dr Sutton. Although the primary judge had difficulties in accepting aspects of Dr Sutton's evidence, she did not reject the diagnosis, which was not directly challenged in cross-examination.

65 Fifthly, as is implicit in the foregoing considerations, the primary judge treated the traumatic events and the domestic upheaval as independent and possible alternative causes of the appellant's major depression. This analysis appeared to reject, implicitly, two plausible considerations. One was that both the traumatic events and the marital breakdown and death of the appellant's sister each constituted a substantial contributing factor with respect to the onset of the major depression. Another possibility was that the potential causes were not truly independent. There was evidence that the policing work "changed" the appellant, thus contributing to the marital breakdown.

66 Whether the failure to deal with the matters last discussed constitute a constructive failure to exercise the Court's jurisdiction would depend upon whether the matters were raised in those terms in the course of the trial. Ultimately, the fifth factor need not be relied upon to reach the conclusion that there was a failure to grapple with the real issues in dispute between the parties.

(b) absence of diagnosis of PTSD

67 The finding that the appellant suffered from PTSD, but that this occurred no earlier than February 2003, was stated in the judgment below at [480]. The reasons for that conclusion were set out at [481]-[495]. However, the whole of that discussion is directed to a search for the earliest professional record of the appellant demonstrating symptoms of PTSD. Nowhere in those pages is there a discussion of the appellant's evidence at trial, nor of his work history as recounted to Dr Canaris, Dr Klug and Dr Lovric.

68 The following section dealt with "the assertion that the PTSD was a consequence of undergoing the traumatic events", and was disposed of in three paragraphs, supporting the conclusion that the events were not a substantial contributing factor to the PTSD: at [497]-[499]. That reasoning is closely linked to the first question, namely when the PTSD commenced. The final paragraph, [499], has been set out above; the other two paragraphs were as follows:

"[497] Dr Klug hypothesised that Mr Goodwin's post traumatic stress disorder dates from August 1987, pre-existing the infirmity of Major depression by some fourteen years. Dr Klug's thesis is countered by his own criteria of a temporal connection between a trauma, defined by DSM IV, and diagnosable symptoms of Posttraumatic Stress Disorder (02/04/08, 28.33-48, 29.11-17; exhibit N, O).

[498] Mr Goodwin submits that between 5 July 2001, when he was discharged from New South Wales Police Service, and 30 May 2007, when he was interviewed by Dr Lovric, 'there is no evidence of any traumatic events ... of a kind capable of causing PTSD ... There is no evidence or explanation for how [he] came to be suffering from PTSD in 2007 but not in 1997 when the only evidence about how [PTSD] was caused was traumatic events associated with his work as a police officer' (exhibits W, 5; paragraphs 18, 19, 21, 23, 26, 28, 41, 50, 51, 53, Plaintiff's Submission on Re-hearing)."

69 Each paragraph appears to be a freestanding part of the reasoning. It is convenient to address them in turn. The material relied upon at [497] included Exhibits N and O, which were extracts from DSM IV - TR (Diagnostic and Statistical Manual of Mental Disorders, 4th ed, Text Revision) for Posttraumatic Stress Disorder and Major Depressive Disorder, respectively. The principal diagnostic criteria for PTSD were stated as follows:

"A The person has been exposed to a traumatic event in which both of the following were present:

(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others

(2) the person's response involved intense fear, helplessness or horror. ...

B The traumatic event is persistently reexperienced in one (or more) of the following ways:

(1) recurrent and intrusive distressing recollections of the event ....

(2) recurrent distressing dreams of the event. ...

(3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). ...

(4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event

(5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event

C Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:

(1) efforts to avoid thoughts, feelings or conversations associated with the trauma

(2) efforts to avoid activities, places or people that arouse recollections of the trauma

(3) inability to recall an important aspect of the trauma

(4) markedly diminished interest or participation in significant activities

(5) feeling of detachment or estrangement from others.

(6) restricted range of affect (eg, unable to have loving feelings)

(7) sense of a foreshortened future (eg, does not expect to have a career, marriage, children or a normal life span)

D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:

(1) difficulty falling or staying asleep

(2) irritability or outbursts of anger

(3) difficulty concentrating

(4) hypervigilance

(5) exaggerated startle response

E. Duration of the disturbance (symptoms of Criteria B, C, and D) is more than 1 month.

F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

...

Specify if:

With Delayed Onset: if onset of symptoms is at least six months after the stressor."

70 The passages of transcript relied on by the primary judge came in the cross-examination of Dr Klug. It is convenient, however, to put that evidence in context by noting certain brief aspects of his examination-in-chief. Dr Klug confirmed that he had formed the view in 1999 that the appellant's major depressive disorder arose in the context of chronic and severe marital problems and in the absence of a prior psychiatric history: Tcpt, 2/04/08, p 6(35)-(50). He said that he was not then aware of the various traumatic incidents of which he subsequently became aware: p 7(5)-(15). The following exchange then took place:

"Q. Is there a reason why you might not have inquired with him about the traumas the possibility rather of his having been exposed to traumatic events at that particular stage?

A. It was [remiss] of me, I think, not to ask but I was seeing him for a particular medico legal ... reason and he was about to go to court. I didn't really have the opportunity to see him the second time. So there are restrictions of time. I would say that with about half the police officers or anybody in a similar situation I would assess, in that situation I would see for at least a second time, so that would involve an interview time of about two and a half to three hours. But in retrospect it's remiss not to enquire of somebody with a recurrent major depressive disorder, from any environment, whether they have been traumatised."

71 Dr Klug was then taken to his second report of 2 November 2000 in which he raised the possibility of the plaintiff suffering from PTSD. He was asked why and responded at p 8:

"A. Some of his symptoms, he said - and I note on page 2 of my report that he said that in retrospect he grew to hate dead people and 'I can remember them all, even the ones I hadn't gone to' but he said it was particularly bad if he attended scenes involving dead children, especially given that he had children. He was intensely reminded and [became] very anxious about contact with reminders such as sirens, bad weather - because accidents occur in bad weather - scenes on television and the media. He was having bouts of nightmares which were occurring up to nightly at times and which appeared to be worsening and he was in a state of what medically you would say, you would call, autonomic hyper-arousal, a very anxious state with a lot of physical symptoms at night, which is very typical of PTSD.

But he was also having these big sweats as he called them after attending various incidents. Irritability is certainly a prominent feature of PTSD. It also can occur with depressive conditions so - but clearly his irritability was quite high and he'd become very isolated which is also commonly a feature of severe anxiety disorders such as a PTSD. And he was also noting that he would keep driving - when he was a police officer - and sometimes he would just leave the station, go for a walk, get away from the station and that he had hyper-vigilance with respect to potential threats in his environment so he'd become quite hyper-vigilant and ... [those] were the main symptoms and they are all compatible with the diagnosis of either PTSD or a condition along that spectrum.

Q. Is it fair to say, doctor, that at that particular point of time you weren't exactly sure as to whether or not he was in fact suffering from a post-traumatic stress disorder?

A. Clinically, if I were treating him rather than assessing him, I would have managed him as if he had a PTSD but ... in the medico legal setting, it's necessary to try to be more pedantic about criteria that match certain diagnoses so that's why I - I expressed it the way I did."

72 Dr Klug was then taken to his report of 24 July 2006 in which he confirmed a diagnosis of PTSD probably together with a major depressive disorder. The following exchange followed:

"Q. So just picking up upon what you had earlier said, how is it that you were able to make the transition from the earlier situation where you weren't able, by way of application of the diagnostic criteria, [to] state categorically that he had the chronic post-traumatic stress disorder in the second report that you were, by 2006, in a position to express that opinion?

A. Well ... he had at that point just the typical presentation of somebody with a chronic PTSD that wasn't responding to treatment. Clinically a major depressive order needs to be actively treated first and then the symptoms of the PTSD addressed and in a person who has such chronicity of a depressive [condition] it is frequently being fuelled by an underlying co-morbid condition, and given his longitudinal history at that point it was clear that he was suffering from a chronic PTSD."

73 He was then taken to a further report prepared on 28 November 2006 after he had been provided with further information by the appellant's solicitors and in the conclusion to which he expressed the view that the appellant had suffered from full PTSD probably from about 1993. He was asked the basis for choosing that date (p 10(45)):

"A. He was - there was a particular clinical relevance to an accident, or the scene - sorry, the scene of an accident that he witnessed in '93 which ... involved the death of two elderly women in a car, which he said was T-boned by another vehicle, and he had a frequent preoccupation with images and emotions from attending that scene. So that appears to have been a seminal trauma, with respect to his - the development of his PTSD."

74 The following evidence was given at p 12(1)-(10):

"Q. You've just given some evidence about the relationship between traumatic events and the development of post-traumatic stress disorder. Are other life stressors capable of causing post-traumatic stress disorder?

A. By - by definition not. It has to be criterion A that - the DSM system is that it must be defined - it must be a traumatic stressor. So even though people can be exposed to other severe stressors, ... such as an acrimonious divorce, that is not regarded as trauma in the true sense. So by definition, one can't develop PTSD in response to that kind of stress."

75 The evidence returned to the question of the comparative effect of other stressors at p 13(40) where the following exchange commenced:

"Q. You've expressed an opinion that from about 1997 on, he was suffering from major depressive disorder?

A. Yes.

Q. By that stage, he had become dysfunctional?

A. Yes.

Q. The reason why he developed major depressive order, as at 1997, was connected, was it, with the traumas or was it connected with something or other else?

A. I think it was substantially connected to the traumas.

Q. I'm interested then in the progression of the major depressive order from that time through to 2000, 2001?

A. Yes.

Q. What was the contribution, if any, of the traumatic events to the major depressive order in that period of time?

A. I believe that they were - were perpetuating factors rather than precipitating or causative factors. So I think that those stressors helped maintain his major depressive condition rather than causing them.

Q. Would he have been suffering from the major depressive disorder that you've spoken about in your reports if he hadn't been exposed to the traumas?

A. I think the likelihood of his developing a major depressive order in response to those stressors, if they were independent of his pre-existing conditions, would have been the same as any member of the population because he had no clear predisposing factors to psychiatric illness, he had no prior history of psychiatric disorder. I'm aware that he had a sister who was severely drug dependent but there was no other family history of psychiatric disorder that I'm aware of. So I think the stats would have been the same for him, at that point, as any member of the population."

76 It is convenient to turn next to the two passages in the cross-examination of Dr Klug to which the primary judge referred at [497]. They read as follows:

"Q. I'd like to just ask you a couple of questions about the late onset of the post-traumatic stress disorder.

A. I'm not sure what you mean. You mean delayed post-traumatic stress disorder?

Q. Yes.

A. Because there's no term late onset post-traumatic stress disorder.

Q. Thank you, so delayed. In the present case you received only a full history in 2006 of the events leading to the fully blown condition, correct?

A. Yes.

Q. In 2000, you were prepared to say that there were some post-traumatic symptoms but I take it in the tender of your report you weren't prepared to say that he had PTSD at that stage?

A. That's correct.

...

Q. I understand the final conclusion you've come to is that that was fully blown from 1993. But could it also be a fact that we're looking at a delayed onset?

A. Look, it's remotely possible but that's not my clinical impression.

Q. That didn't enter your calculations?

A. Look, it's - a delayed post-traumatic stress disorder is an unusual diagnosis. It's a fairly rare one.

77 It is convenient to include reference to some further questioning, initiated by the primary judge and taken up by counsel for the respondent. Following the cross-examination her Honour asked (p 29(30)):

"... You mentioned divorce as not being the type of stressors that you looked for diagnostically, at least that's what I think you said. What did you mean by that?

A. Your Honour, I think I was being questioned about the - the nature of traumatic stressors and by definition a post-traumatic stress disorder can only be caused by a traumatic stressor. And traumatic stressors are generally defined as ones in which a person's physical integrity or life is at risk or in which they see other people in those situations. Whereas a divorce doesn't qualify for a traumatic stressor even though it may be a severe stressor."

78 Counsel for the respondent returned to that topic at p 32(40):

"Q. Her Honour asked you about divorce not being a type of stressor for PTSD.

A. Yes.

Q. It can be the type of stressor that has an effect on, or gives rise to a major depressive disorder though, it is not?

A. That's correct.

Q. As is death of a sister?

A. Yes, that's correct.

Q. In fact I suppose the death of a sister could give rise to both, couldn't it? It could give rise to a post-traumatic stress disorder, depending on -

A. Yeah, it depends on -

Q. - how close you were to the -

A. Well, no, it depends on the mode of death of the sister. So if the sister has died in a terribly traumatic way then it's more likely to be a traumatic stressor if that person had to view the body of the person and so on. ...

Q. It certainly could give rise to a major depressive disorder?

A. That's correct."

79 With the assistance of the material identified at [497], it appears that the primary judge rejected Dr Klug's hypothesis that the PTSD dated from "August 1987" on the basis that there were no symptoms at that time and that the temporal criterion required a reasonably close connection between the trauma and the symptoms, referring to a passage she had set out, with apparent approval, at [303]. There is no doubt that the primary judge was entitled to reject Dr Klug's opinion. However, the basis for rejection appears to be the absence of contemporary symptoms prior to the marital breakdown in 1997-1999. In fact, as noted above, whilst Dr Klug may have raised an hypothesis that the appellant was suffering from PTSD as early as 1987, his opinion linked it specifically to an event in 1993 and the immediate and recurring symptoms resulting from that event. For her Honour to reject the medical opinion on that basis required rejection of the symptoms, as opposed to the absence of a contemporaneous written record of the symptoms. To reject the symptoms required confronting the reliability and truthfulness of the appellant's evidence. That task was not undertaken.

80 The submission noted at [498] relied upon the same temporal connection upon which her Honour had relied in the previous paragraph. The diagnosis of PTSD in February 2003 required either identification of traumatic events in the period immediately preceding that date, or a rejection of the need for a temporal connection. No traumatic events were identified during the four years preceding that diagnosis, nor was the temporal connection, which appeared to have been accepted in the previous sentence, rejected. (The appellant finally separated from his first wife in January 1999.)

81 Precisely what is intended by the reasoning at [499] is unclear. The references at the end to the transcript are all to Dr Klug's evidence; exhibit D included five reports by Dr Klug, together with his curriculum vitae; exhibit J (five pages) included a report and three letters from Dr Sara Murray, the report bearing a page numbering of 318 and 319 (presumably from a bundle of documents at trial); exhibits N and O were extracts from DSM IV, as noted above. There does not appear to be any reference in the transcript to the "hypothesis" recorded by the primary judge. However, Dr Klug did refer in two reports to a report by Dr Canaris noting the appellant's presentation is "strongly consistent with a post traumatic stress disorder" and referring (in the report of 24 July 2006) to Dr Canaris having had interviews with the appellant "of March and February 2003". The reference was erroneous and was corrected in the report of 28 November 2006, where Dr Klug referred to interviews "in March 2002 and February 2003". Even with that correction, the passage at [499] was seriously misleading if it were intended to imply that Dr Klug supported a view that PTSD first presented in February 2003 (putting aside the interview in March 2002) or that there were events shortly prior to those dates which were capable of causing PTSD.

82 The second sentence in [499] is even more obscure. Because the questioning of Dr Klug, in which her Honour joined, established that events such as the sister's death, at which the appellant was not present (although he viewed the body), could not constitute a relevant traumatic event for the purposes of PTSD, it might possibly be inferred that the primary judge intended to refer to such events as contributing factors to the appellant's depression. On the other hand, the combination of reference to "traumatic events" other than the work-related traumatic events, and PTSD would run counter to such a correction. There appear to have been no other traumatic events which could have been adequate stressors for the purposes of PTSD. Certainly none were noted in the evidence to which reference was made at [499].

83 This analysis of the reasoning of the primary judge is not intended to demonstrate legal error based on some form of mistake or illogicality; rather, it is intended to explain why this Court cannot be satisfied that the primary judge identified and determined the critical issues in dispute.

(c) appellant's evidence

84 Under the heading "The facts" (dealt with at [8]-[123]) the primary judge set out events which she described as "common ground or undisputed as to their occurrence but not as to their alleged effect on Mr Goodwin": [8]. The chronology there set out included numerous circumstances, including medical appointments, which were not as such "events" having any relevant effect on the appellant's mental health. The primary judge identified the traumatic events as those set out in [17], [19], [20], [22], [23] and [25] of her judgment: see, eg, at [478]. Accordingly, it is convenient to identify those events as described in the early passages in the judgment.

"[17] Between August 1987, and 25 June 1988, Mr Goodwin performed general duties as a Probationary Constable of Police. He 'attended a post mortem examination at Parkes District Hospital morgue', a fatal motor vehicle collision 'about 20km south of Formes on the Newell Highway' and a fatal motor vehicle accident 'about 5km west of Eugowra on the Forbes Rd' ....

...

[19] On 26 June 1988, the Commissioner appointed Mr Goodwin as a Constable of Police .... In the course of general duties, Mr Goodwin attended the morgue at Parkes District Hospital, identified the body of Adam Parker, who had been killed by a collision between a van and a power pole, and attended the ensuing post mortem ....

[20] On 19 June 1989, the Commissioner transferred Mr Goodwin to Parkes Police Station. In the course of general duties, Mr Goodwin attended 'a serious motor vehicle collision between Alectown and Peak Hill on Newell Highway' in which a mother and her young children were killed ....

...

[22] About 1993, Mr Goodwin attended a collision 'at Tichborne on the Highway between Parkes and Forbes' in which 'a large Ford sedan' had collided with 'a smaller white sedan', killing two elderly women. ...

[23] In the course of those general duties, Mr Goodwin attended a collision on 'the Welcome railway crossing' where 'the train had stopped across the crossing and the lights were flashing.' Mr Goodwin 'attended the death of a 4 year old child who had [choked] after swallowing a small plastic ball.' Mr Goodwin investigated 'a murder scene', which included a decapitated body, retrieved from 'Paddy's River on the Hume Highway.' Mr Goodwin 'attended a house fire where ... Michael John Tyce was murdered ...' Mr Goodwin rescued a man 'from the swollen Forbes river during flooding ...' Mr Goodwin continued his general duties and was awarded a medal for his bravery, rescuing the man ....

...

[25] ... In the second half of August 1995, Mr Goodwin 'attended a fatal motor vehicle collision on the Wingecarribee River Bridge on the Hume Highway at Berrima' ...."

85 Most of the references given in support of these events (not set out above) were to the further amended statement of claim or to medical reports. Among the references to the transcript of the plaintiff's evidence-in-chief, was one to the transcript of 31/03/08 at pp 30(14)-31(3). The same reference was given in respect of three events, though not the actual event which it described.

86 There was a further passage in the judgment which was headed "Daniel Goodwin's evidence". It ran from [198]-[205]. The only potentially relevant passage stated as follows:

"[199] Between 31 March 2008, and 2 April 2008, Mr Goodwin gave evidence, mainly in response to leading questions, regarding the traumatic events, pleaded in paragraphs 3.a to 3.l of his further Amended Statement of Claim. Mr Goodwin could not recall their dates, their sequence nor his reactions to those events. His evidence differed in its detail from histories of those events that he had given, piecemeal, years earlier (exhibits D, K, 5, 6).

[200] In the witness' box, Mr Goodwin's affect fluctuated rapidly between anguish and levity. Intermittently, he smiled vaguely, grimaced, wiped his face, bit his lips, wrung his hands, pulled his fingers and cracked his knuckles and wrists. He shredded paper tissues, manoeuvred a disposable plastic cup with his tongue and covered his mouth with his hands, distorting his speech.

[201] Unnecessarily, Mr Goodwin admitted that he is 'not good with dates'. From day to day, he could not remember the evidence he had given to this Court nor where he had lived at relevant times ...."

87 Exhibit D was the set of five reports of Dr Klug; exhibit K was the medical discharge application; exhibit 5 included two reports of Dr Lovric and exhibit 6 was a report of Dr Boland. The remark that the appellant's evidence was given "mainly in response to leading questions" may be ignored. In many pages of evidence, there appear to have been only two objections on the basis of leading and most of the evidence was not led in the sense usually understood by that term. If the statement as to the appellant's inability to recall his reactions to those events were to be taken at face value, it would have been necessary to quote extensively from his evidence. However, that comment, made almost in passing, cannot be treated as a serious assessment of his evidence which covered more than a hundred pages of transcript. As noted above, Dr Klug placed special significance on his responses to one or both of two events in 1993 and 1994. By way of example, it is convenient to set out his evidence-in-chief in respect of those events.

"Q. I want to take you now Mr Goodwin to an event that occurred in March 1993, so the year following the birth of your daughter, an event on 6 March 1993 when you again attended a fatal motor vehicle accident at Tichborne, do you remember that?

A. Yeah.

Q. Can you say what happened on that day?

A. I was working with Malcolm Fisher again and it was the afternoon, I was on the afternoon shift and it was torrential rain again, I remember turning up in the shift thinking oh, I remember turning up thinking and having thoughts of the other previous fatal in the rain, that was what I was thinking and when a call came in that there was a serious accident out Tichborne Road I thought, really stress out, sort of panic and you start preparing yourself, you get really tense, so we got all our gear together and we drove out really fast again. On arriving there I noticed that a highway patrol car was already there but he was actually standing away from the accident scene doing traffic duty. Me and Mal went up to the car and I saw a person in the Falcon and I knew it was Laurie Grant(?).

Q. How did you know him?

A. I've had dealings with him in the past, he comes from Forbes, I actually spoke to him a week beforehand about his car, he had a domestic with his wife and his wife wanted the car and she wanted him charged with stealing the car, that was a civil matter and they had to sort that out themselves. I wish I took the car off.

Q. What kind of car was it?

A. Ford Falcon 500, high powered, sort of hotted up thing and then he was, the other little white car was had, it had T-boned his car, he's obviously gone around the S-bend and lost control of his car and was sliding sideways and collided with an oncoming car.

Q. When you say T-boned that means to say what exactly?

A. It means one car collides into the side of another car and it forms a T. This was so severe that the car pushed right, it was imbedded right into his Ford car.

Q. What kind of car was the other car?

A. It was a little white older car, like a Datsun. He was a big man and the car was pushed, the little white car was embedded in his car that much that he had probably six to eight inches of room left in his car from where he was sitting so he was squashed right up and it looked really, really gross.

Q. I'm just trying to get a picture of and to understand what happened Mr Goodwin, is it fair to say that the Datsun had driven into what was the cavity that was occupied by the front seat and the driver?

A. Yeah.

Q. What else did you observe about the inside of the car?

A. He had, I could smell alcohol in the car, I could see bottles of beer in the car, open ones that had been, you know, spilt all through the car, it appears that he had been drinking whilst he was driving.

Q. Did you look inside the Datsun as well?

A. I did.

Q. What did you see?

A. I saw two elderly women in their mid sixties, that was a sight. [I'll] never forget it, she was, looked like she'd been frozen in time, she was white, what I remember about her she was so white and she had hold of the pillar on the door and the front windscreen, she took a grip of that and her mouth was wide open, her eyes were wide open and she was really tense and you could tell exactly what she was thinking at that particular time, as if in a split second her life had just ended just like that, you knew exactly what she was thinking. The other lady was how you would expect to see a body, just normally slumped over, in a more relaxed stated but the other lady was so tense.

Q. The first lady, whereabouts in the car was she?

A. She was the passenger. The lady who was frozen in time, the driver was just how you would expect someone to look.

...

Q. You saw some motorists did you looking at the collision site?

A. The scene, yeah. I remember one driver actually saying something to me, asked if I was all right.

Q. Can you remember as best you can the words that were used?

A. He said, 'Are you all right?' I remember that because I really appreciated it and I said, 'Not really'.

Q. How long did you perform the point duty, the traffic duty there?

A. About an hour.

Q. After you finished those duties, what did you do next?

A. Went back to the station. Had nothing to do with the actual investigation of it. I just, had to do a little bit of paperwork on it. I didn't do much for the rest of the shift.

Q. After the shift ended did you have any other involvement with this particular matter?

A. I don't think I did, no.

Q. Where did you go after the shift ended?

A. To the pub.

Q. How long were you at the pub for?

A. For a while.

Q. How were you feeling at that stage?

A. I was feeling really - felt really sick, really nauseous. Felt like I just didn't want to do any more.

HER HONOUR

Q. You dropped your voice, I didn't understand that?

A. I felt nauseous. I just didn't want to do that any more. And for a long period of time, a long period I would have nightmares about this one. But this -

NAYLOR

Q. Can you tell me when you experienced the nightmares and how often you experience the nightmares?

A. On the first night, that first night and up to two, three nights a week. It went on for a long time and I still have nightmares about this one.

Q. What is it about this incident that figures in nightmares?

A. The look on her - this lady's face.

Q. Can you describe that look?

A. It was scary. It was scary look and it was - I picture this - I've had gone over time and time again in your head about this one and had nightmares about this but the actual nightmares have actually changed with this one where this lady is actually in other nightmares with no relevance to anything, to any accident but she's in it - to other accidents.

Q. You said you were at the pub for a while and after you left the pub at some stage?

A. Yeah, went home.

Q. What happened after you got home?

A. Showered. Always did the same routine.

Q. What's the same routine?

A. Got to bed, think, can't sleep, even though I had been drinking.

Q. How long did that go on for?

A. No sleep, about three nights.

...

Q. That was on 6 March 1993. I would like to take you next if I may to an event that occurred the following year in April. That was an event that involved an accident at a railway crossing, do you remember that?

A. Yes I do.

...

Q. Did you take a telephone call on that day Mr Goodwin?

A. I did. It was early in the morning.

Q. As a consequence of that telephone call did you take certain steps?

A. Yes we did. Me and Mal Fischer prepared really quickly to attend to a scene out in Welcome Railway Crossing but we were unsure exactly as to what it was.

Q. Where was the Welcome Railway Crossing?

A. It's about 10 k's south of Parkes between Parkes and Forbes. It's a straight piece of road. It's a main road. And it's an area that's fitted with crosses and flowers.

Q. So you went to the Welcome Railway Crossing on this day?

A. Yeah.

Q. And you were with Senior Constable Fischer?

A. Yeah.

Q. What happened after you arrived at the Welcome Railway Crossing, what did you see?

A. When we got there, everything appeared normal. There was a train across the railway crossing. The railway crossing lights were flashing but they didn't appear to be anything wrong. We left our lights activated, got out of the car and looked up and down the track. We couldn't see the engine of the train and we couldn't see the tail of the train. The train was possibly over a kilometre long. It was a very long train.

...

Q. So you arrived at the scene, you saw the train, what did you do next?

A. We climbed through between the carriages and they were freight carriages, like coal carriages and I went first and climbing - as we got to the other side, I couldn't believe what I saw, it was like a war zone, like -

Q. Can you describe exactly what you saw please?

A. It was just debris from a Fennimore's truck prime mover tanker that had been carrying lard which is fat and this truck was disintegrated and the debris from the truck was scattered over a 50 metre to 60 metre radius. There were three carriages from the train which had been dislodged from the track. They had actually been dislodged from their bogies, that's the wheel on the train. The actual bogies were sitting on the roadway and the actual carriages themselves were on their sides. So straightaway I thought it must have hit this tremendous force. There was a lot of force to just go straight through the train so - also saw a leg.

Q. Whereabouts at the accident scene?

A. Straight in front of the - as we got off the train. It was only about 10 metres away but it was sitting on the roadway right in front of us. We didn't do nothing with that - we saw that. What we wanted to do then was find the cabin of the truck and find the driver. We found that in the paddock about 30m, 40 metres away. The cabin was disintegrated. It was really small. It was - it wouldn't have been as big as this desk.

Q. Am I to understand that somehow or other the shape of the cabin wasn't what it used to be?

A. It was - the part that he was in, that we found him in, would be smaller than this desk and he was inside that and it was crushed up like - it was crushed up like you crush up an aluminium can and he was just inside it. But the rest - like the truck was in thousands of pieces.

Q. Did you make a close inspection of the cabin and the driver?

A. We located the driver inside. He was chopped up pretty bad. You know he was - he had not only his leg missing he had other part members of his body missing.

Q. Which other parts of his body were missing?

A. There was an arm missing. He was all squashed like - he was all compacted, really small. There was lots of blood, there was lots of you know like guts and stuff. It was all through like on parts of the truck and on all sharp parts of the truck there was pieces of flesh and things like that.

Q. Did you do anything with the cabin or the deceased at that stage?

A. No, nah.

Q. What did you do next?

A. Waited for detectives and other services to come. While I was waiting for that I had to find an alternate route for traffic to go round because the roads was totally blocked off. I did that and finished my shift and went home.

Q. Before you finished your shift, apart from your duties in relation to finding an alternative traffic route, did you do anything else, perform any other duties at the accident site?

A. I remember having to collect a leg.

HER HONOUR

Q. I didn't understand you?

A. I had to collect a leg.

...

NAYLOR

Q. You gave the leg to the detectives, is that right?

A. Yeah, had to bag it.

Q. So it was put in an evidence bag or a bag of some description?

A. Just a plastic bag, yeah.

Q. How were you feeling at that stage?

A. I wanted to scream.

Q. Why did you want to scream?

A. Just build up a pressure, I just wanted to let it all out. Just - yeah I just wanted to, you know when you just want to go outside and just scream, just scream and yell, hoping to make me feel better but there's lots of me friends there and that and I just didn't want to let them down and you carry on like that you sort of put on a brave face and those sorts of things and it's not until you're alone and that you get to sort of debrief yourself.

Q. Did you remain at the accident site until the end of your shift?

A. A little bit over and then we were told to go home.

A. Did you go home then?

A. Yeah.

Q. Do you remember what happened when you got home?

A. I showered and just was really exhausted and went to bed but I couldn't sleep. I didn't sleep for that day, the whole day.

Q. Why is it that you couldn't sleep?

A. Felt restless and really tense and sick.

Q. So how long did you feel that way?

A. Long time, a very long time.

Q. Can you be a bit more specific in terms of days or weeks?

A. Three days for a really bad sort of sickness and nausea, not eating and sleepless and that tends to - you do sleep after that but you don't. It's always fresh in your mind and it affects your concentration."

88 Nowhere in her lengthy reasons did the primary judge make findings as to the truthfulness and reliability of that evidence.

(d) reliance on medical records

89 Critical to the reasoning of the primary judge was the absence from the medical records, prior to July 2001, of any account given by the appellant of symptomatology consistent with PTSD. The fact that he ultimately spoke at length about his feelings and reactions to traumatic stressors was a factor to be taken into account in determining the actual contemporaneous effects of the stressors, but their absence from the medical histories prior to 2001 merely demonstrated that he had not spoken of those matters to those providing medical services at the time. However, there is an additional difficulty, namely that there was evidence reasonably proximate to the date of his discharge which did appear to reveal a post-traumatic stress disorder. Some of it was addressed by the primary judge, but some was not.

90 First, there was the second report of Dr Klug, dated 2 November 2000 and relating to an assessment undertaken on 7 September 2000. In that report Dr Klug noted that the appellant "remains preoccupied with the Police Service - 'I think about it a lot - I miss it'." However, he also described a "persistent depression of his mood" and stated that he "generally avoids talking to people about his work as a police officer": Report, p 1. Dr Klug noted at p 2:

"He said he regretted the break-up of his marriage. He told me that his wife had said that he was 'very different after joining the cops'. He said that he had become 'paranoid about the kids and their safety because of what I saw in the police - the general public don't really know what's going on out there'. He said, for instance, he avoided bringing the children to Sydney and taking them on trains.

...

He said that in retrospect he grew to 'hate dead people - I can remember them all - even the ones I hadn't gone to but I'd heard on the radio'. He said it was particularly bad if he attended the scenes involving dead children the ages of his own.

Even now he continues to be reminded of these images by sirens, the weather (bad fatal accidents often occur in wet, cold weather early in the morning) and scenes on television and in the media generally.

On inquiry about continuing nightmares he said that these continue in bouts and can occur nightly at times. They are possibly worse now because in the past he was able to talk to other police officers about his experiences - 'and now I've got more time to think too'. He used to have 'big sweats' at night after attending various incidents.

I inquired about his irritability. He said 'no one could reason with me - I was always right - I couldn't tell if people were joking or not - I used to have a big chip on my shoulder'. ...

He said that after doing various police jobs he would 'keep driving'. He said he could 'end up five or ten kilometres away from where I should be'. He would also leave the station and go for a walk to get away from the situation there. He described, in retrospect, persistence hypervigilance with respect to potential threats in his environment. He said he was 'on the look-out all the time'."

91 Dr Klug continued the descriptive section of his report with the following statement (p 3):

"On mental state examination he appeared to be depressed and was reluctant to talk about his police work and the associated stresses. He generally adopted a stoic attitude. Otherwise his mental state examination did not differ from the previous time I had seen him."

92 Dr Klug concluded the report with the following opinion (pp 3-4):

"The history that Mr Goodwin gave is compatible with the previous history taken. The only significant difference is that on this occasion the symptoms he described included significant post-traumatic stress-related symptoms and I wonder whether, in fact, his major depressive disorder may have been superimposed upon a chronic post-traumatic stress disorder. If this has been the case, then he must, indeed, have been a very distressed man.

Nevertheless, apart from his work related stresses, there of course were other stresses in his life which I have detailed, particularly in my initial report.

His symptoms are also in the absence of any significant support from the Police Service.

He is currently functioning at a higher level than he did previously but has significant residual symptoms. His symptoms are both anxiety-based and depressive in nature. He does not, however, appear to have a full blown disorder as he has periods when he is functioning reasonably well.

...

His prognosis is uncertain. His symptoms are now chronic and I anticipate that, to some degree, he will have a life-long increased vulnerability to both anxiety-based and depressive symptoms."

93 As Dr Klug accepted in his oral evidence, the report of November 2000 did not diagnose full-blown PTSD. However, there was express reference to the effect of work-related stressors on his condition, which was described as both depressive and "anxiety-based".

94 Dr Klug first saw the appellant on 24 August 1999 in relation to charges which had been laid against him with respect to an assault on a driver on the freeway earlier that year. In recalling the incident, he is recorded by Dr Klug as stating:

"As he pulled out on the freeway another driver began causing difficulties for him, such as squashing him into a truck, moving in front of him, etc. He pulled the driver over and flashed his badge. Mr Goodwin said to me 'that's one way I'd hate to die - in a car crash - I've done heaps of fatals and I hate them - I can remember all the details of every single fatal I've been to'."

95 In a passage noted by the primary judge at [279] he was admitted to Chisholm Ross Centre (Southern Health Service Mental Health Service) in July 1999 and spoke with a psychologist, Cassandra Bourne, who noted that he "recounted traumatic instances at work involving road fatalities".

96 As noted above, in 2002 and again in February 2003 the appellant saw Dr Canaris, who affirmatively diagnosed PTSD. In his report, following his consultation on 6 February 2003 Dr Canaris noted that the appellant "mentioned in passing that he had spoken in depth to a Dr Sutton of the mental health team in Goulburn about this and other incidents some two years ago" and that this was "the first time he had talked to anyone in depth": Report, p 3. That statement would have placed the interview with Dr Sutton in early 2001.

97 On 15 March 2008 Dr Sutton provided a report to the appellant's solicitors in respect of the appellant. Dr Sutton noted that he had retired from his position in Goulburn at the end of 2003 and had no notes from that period, which were held by the Greater Southern Area Mental Health Service. He continued:

"I was involved with the treatment of Mr Goodwin during a period of several months during 2000 and/or 2001. The history obtained from Mr Goodwin was mainly in connection with [his] experience in the police service in Forbes and Parkes. He said he had not had the opportunity to talk at length about the events he experienced and which had caused him considerable distress. As was clear from his nervous behaviour, depressive thoughts, suicidal tendencies, memory difficulties and flashbacks from post-traumatic stress disorder, I gave him ample opportunity to go through the various incidents which occurred and to talk about his feelings and the effect that he believed they had on his current state of mind.

Although I have had a great deal to do with the police service during my 12 years as Director of the Bureau of Crimes Statistics and Research and three years as a consultant to the Police Commissioner, I have never had any officer describe to me the very serious injuries and results of car accidents experienced in rural areas. They were truly horrific, exacerbated by the fact that in many of the incidents Mr Goodwin knew the victims. I came to realise ... that Mr Goodwin was in a state of major depression and I reported to the community team that his suicidal tendencies were real and based on his experience and that we should ensure, that we maintained contact. He appeared to have no major loss of cognitive function other than that associated with PTSD.

I came to think that Mr Goodwin had a level of sensitivity which may him vulnerable to trauma from the experiences in his police service. It was not an abnormal or pathological sensitivity, and, of course, many officers learn to cope with similar experiences. However, he went through the training for appointment as a police officer, and was appointed to the position. If he had not become a police officer, his exposure to such close observation of the results of motorcar accidents would have been less and perhaps non-existent. So one can say that his police service was a major cause of his condition as I came to know it during the period in which I attempted to treat his PTSD and depression."

98 Dr Sutton was cross-examined at some length about the lack of notes available to him when he prepared the report and the lack of detail upon which his opinion had been based. The cross-examiner established that he had no clear recollection of any detail beyond that contained in his report. However, he stated that, "I remember him vividly because I was interested in the whole problem": Tcpt, 2/04/08, p 43(7). In questions from the primary judge, Dr Sutton agreed that he had identified the timeframe by a range intended to convey that the sessions with the appellant could not have been earlier than 1999 nor later than 2001: Tcpt, p 47(12)-(16).

99 This material was potentially inconsistent with a conclusion that the appellant was not suffering from PTSD in mid-2001. The judge dealt with Dr Sutton's evidence in a little detail, at [404]-[416]. She concluded that because Dr Sutton wrote his reports and gave oral evidence without his records, "the majority of Dr Sutton's evidence is conjecture or surmise": at [411].

100 As appears from the following paragraph, the major matter of conjecture or surmise was the time at which the period of treatment occurred. Dr Sutton understood that the applicant was then undergoing a TAFE course in Goulburn and living there temporarily. The sessions concluded when the appellant returned to Bowral. Because the appellant and his second wife were back in Bowral and married in September 2002, it is clear that the sessions with Dr Sutton pre-dated that period. It also seems likely that they were closer to 2001, based on the appellant's statement to Dr Canaris in February 2003, that he had seen Dr Sutton two years earlier. The primary judge did not identify a specific date but accepted that the therapy may have been undertaken between 2001 and September 2002: at [416]. There is no finding that Dr Sutton was mistaken in reporting his diagnosis of PTSD. Accordingly, to conclude that there had been no diagnosis of PTSD before February 2003 required some assessment of the evidence of Dr Sutton and, indeed, a rejection of its timing or correctness.

101 The primary psychiatrist who gave evidence for the respondent was Dr Kathryn Lovric. Dr Lovric diagnosed PTSD, on the basis of an extensive interview with the appellant. She considered that the first mention of post-traumatic stress symptoms were those recorded by Dr Klug in 2000. She also noted the diagnoses of Dr Sutton and Dr Canaris. Despite that material, she considered that the symptoms did not become a clinically significant disorder until some time after September 2000.

102 It is worth noting the conclusion reached by Dr Lovric in her second report (p 6):

"In summary, I have no doubt that Mr Goodwin was exposed to a number of horrific events in the course of his duties. I have no reason to doubt that he was distressed by those experiences. However, if one reads the reports of his colleagues or the professionals he consulted subsequent to his exposure to the particular incidents he identifies as particularly traumatic for him, it does not appear that his symptoms at that time were related to those experiences, but rather, were largely related to his turbulent marital relationship, the death of his sister and his personality characteristics. It does not appear that a diagnosis of Post-Traumatic Stress Disorder was made by any mental health professional for many years later, and Mr Goodwin did not report symptoms consistent with that diagnosis prior to his discharge from the Police Force. It appears, rather, that he was treated for symptoms of depression, anger, demoralization and recurrent suicidal behaviour."

103 It is possible that the primary judge adopted a similar approach in her conclusions. That is, she did not assess whether the symptoms, though unreported, existed, or existed in a more extreme state than those reported, prior to his medical discharge.

Conclusions

104 The assessment made by the primary judge, to the effect that the appellant did not suffer from PTSD, nor was his major depressive disorder substantially contributed to by any work-related stressors, needed to confront the following propositions, namely that:

(a) there was no doubt that, as at February 2003, the appellant suffered from chronic PTSD;

(b) there was no dispute that PTSD could give rise to a major depressive disorder;

(c) the only available traumatic stressors capable of having caused PTSD in the appellant were the traumatic events which occurred during police work between 1987 and 1997;

(d) there were certainly no relevant traumatic stressors between the date of his discharge in July 2001 and the diagnosis in February 2003;

(e) delayed onset PTSD was rare and not indicated in the case of the appellant;

(f) traumatic stressors were capable of contributing to a major depressive disorder, and

(g) there was uncontroverted evidence from the appellant as to the physical and mental effects of the traumatic events upon him immediately following the events and for significant periods thereafter.

105 These issues were critical to the disposition of the claim. Despite a lengthy judgment, these matters were not addressed in a fashion which considered, let alone determined, their significance.

106 In addition, the primary judge appears to have accepted the diagnosis of Dr Sutton of PTSD, which may well have occurred within months of the medical discharge of the appellant, but, like Dr Lovric, simply ignored it.

107 Similarly, the primary judge appears to have accepted the evidence of Dr Klug that a delay in the onset of PTSD after a traumatic stressor is rare and should not be accepted as having occurred in the present case. When she came to determine when the PTSD occurred, that finding was also ignored.

108 In the circumstances, there has been a constructive failure to exercise the jurisdiction conferred on the Court. There was a failure to deal with central elements of the appellant's case. Rather, a conclusion was reached which was inconsistent with facts and opinions which were recounted and not rejected. It was also reached without any coherent analysis of the appellant's own evidence as to the effects of the traumatic events on him.

109 In these circumstances, the judgment must be set aside. It is not possible on an appeal limited to a point of law, for this Court to revisit the issues, nor would it be open to this Court to reach a conclusion without hearing from the witnesses. The inevitable, if unpalatable, result is that the matter must be remitted for a further hearing. The respondent must pay the appellant's costs in this Court. The costs of the past and further hearings in the District Court (including the original trial) are to be dealt with by that Court on remittal.

110 YOUNG AJA: I agree with Basten JA.

**********

Decision last updated: 22 November 2012