BENNIE v STATE OF NEW SOUTH WALES [2009] NSWSC 96 (3 March 2009)

Last Updated: 24 July 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
BENNIE v STATE OF NEW SOUTH WALES [2009] NSWSC 96


JURISDICTION:


FILE NUMBER(S):
11447/06

HEARING DATE(S):
22.10.07-12.11.07

JUDGMENT DATE:
3 March 2009

PARTIES:
Robert Maurice BENNIE
State of New South Wales

JUDGMENT OF:
Hulme J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Plaintiff: R Burbidge QC: J Garnsey QC: G Radburn
Defendant: P Bodor QC: M Hutchings: V Hartstein

SOLICITORS:
Plaintiff: WJ Grace & Co
Defendant: IV Knight Crown Solicitor's Office


CATCHWORDS:


LEGISLATION CITED:



CASES CITED:


TEXTS CITED:


DECISION:
Orders deferred



JUDGMENT:

155

- -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

11447 of 2006

HULME J

Tuesday, 3 March 2009

Robert BENNIE v STATE OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: Because of the length of these Reasons, and even though the nature of the issues precludes dividing them into water-tight compartments, it has been convenient to insert a number of subject headings, viz:-

Paragraph

Introduction and Pre Menindee History 2

Menindee 12

12 February 1992 – Plaintiff 147

12 February 1992 – Mr Aliende 163

12 February 1992 – Constable Dimatteo 167

12 February 1992 – Constable Fredericks 178

12 February 1992 – Sergeant Hillier 185

12 February 1992 – Inspector Baillie 192

Campbelltown Hospital 192

Medical and Similar Reports 196

Other post 1 January 1992 238

Statutory Matters and Opinion Evidence 260

Commentary 276

28 August - 27 October 301

28 October – 27 November 306

28 November – 1 December 312

1 December – 11 February 319

12 February 1992 – At Court 325

12 February 1992 – Railway Line 328

12 February 1992 – Police Station 340

The Pleadings 341

Conclusions 350

Plaintiff’s Mental Condition 407

Plaintiff’s physical Injuries 423

Disabilities 465

Damages Economic Loss 469

Damages – Non Economic Loss 485

Damages – Aggravated & Exemplary 488

Damages – Other 507

Introduction and Pre-Menindee History

2 The Plaintiff in these proceedings, who according to his wife, has sued by her as his tutor since 24 January 2007, was a police officer. He reported information to the effect that another police officer was engaging in criminal behaviour or other impropriety. He says he was assured that his reports would be kept confidential. He complains that they were not and thereafter he was subjected to various forms of harassment, including assault occasioning actual bodily harm, by other officers and did not receive the support from his employer that he should have received for trying to fulfil his duties by making the report. He says that this conduct by the members of the police force led to him having what I may summarise as a nervous breakdown and various physical injuries, and being removed from the police force. The specification of the injuries and disabilities extends to something under 5 pages. For these matters he claims damages. He alleges that, by its servants or agents, the Defendant was negligent, breached the contact by which the Plaintiff was employed and guilty of assault.

3 The Statement of Claim is hardly a prime example of the draftsman’s art but any difficulties in that regard can be left for the moment. The Defendant does not dispute that the Plaintiff is unfit for a role as a policeman but does dispute that it did anything rendering the Plaintiff entitled to succeed in his claim.

4 The Plaintiff was medically discharged from the police service on 5 November 1992 having been certified unfit. The certificate of the Police Superannuation Advisory Committee issued at that time was subsequently the subject of amendment on two occasions and the final certificate which appears to have been issued on 17 July 1995 certified the Plaintiff’s incapacity as due to an “adjustment disorder with depressed and anxious moods”. On 1 December 1995 the delegate of the Commissioner of Police decided that that infirmity was not caused by the Plaintiff being hurt on duty, a decision taken pursuant to Section 10(B)(3)(a) of the Police Regulation (Superannuation) Act, 1906.

5 The Plaintiff appealed to the Compensation Court of New South Wales against that decision and on 11 September 1998 his Honour Judge Geraghty set aside that decision and found that the Plaintiff “was hurt on duty, and that, as a result, as at November 1992, as at 17 July 1995 and as at present, he was and is unfit for police service”. The Plaintiff has alleged that the Defendant is estopped in these proceedings by some of the findings and conclusions of Judge Geraghty. I delivered a Judgment on that issue on 22 October 2007 and further consideration of that topic can be deferred.

6 The number and nature of the issues that arise make it convenient to deal with the events in the Plaintiff’s life substantially in chronological order.

7 He was born in April 1957. He attended a variety of schools in New South Wales, completing the Higher School Certificate with sufficient marks to undertake tertiary studies in chemistry and physics at Sydney University. He did not undertake such studies, joining the State Rail Authority and serving as a station assistant for some 6 months before joining the army in about July 1976.

8 In evidence tendered on behalf of the Plaintiff from his army career were a number of letters of commendation for his actions in various situations. By way of example, one letter relating to events when Defence personnel were troubled by a strike at Sydney airport recorded that the Plaintiff took control of the situation, maintained his calmness and was helpful and courteous to all. Another remarked that officers were particularly impressed with the Plaintiff’s courteous, confident and very competent approach to his duties.

9 A Course Report of December 1979 “To qualify students in Subject one for Corporal”, contained a recommendation that the Plaintiff should be considered for promotion in the near future and recorded:-

“Bennie applied himself fully and gave his whole attention to all aspects of the course. His dress and bearing were of a high standard throughout the course. He tends to have too much to say at times and must be more prepared to listen. He was rated top student on the course and should make an excellent junior NCO. He has good instructional ability.”

10 While in the army the Plaintiff became a corporal, leaving the army in July 1982 with the intention of joining the police force.

11 He commenced at the Police Academy at Redfern in November 1982 and was sworn in as a constable, - I infer probationary – in February 1983.

12 During the Plaintiff’s police service he participated in or was witness to a number of incidents calculated to be distressing. In June 1983 he was closely associated – his counsel’s words - with an incident when a woman had died in a bath, as a result of immersion in scalding hot water.

13 A Probationary Constables Assessment Form dated 23 June 1983 concludes with the remarks:-

“Probationary Constable R M Bennie is a very dependable police officer, who at this early stage of his police career had developed this essential trait. Has a very high work rate and is willing to be involved in new and old tasks. His attitude to fellow police and members of the public is excellent. He has proved to be a valuable acquisition to the Force. I recommend that his appointment be confirmed.”

14 A number of other similar documents between 11 October 1983 and 18 January 1984 were equally complimentary recording, inter alia, that the Plaintiff displayed enthusiasm, coolness and logical thinking and interest in his fellow police officers and members of the public and that his progress was considered to be very good. On 11 February 1984 he was confirmed as a constable of police, some 7 months earlier than normal.

15 A series of police Work Performance Appraisal Forms covering the period of February 1986 when the Plaintiff was the most junior officer at Leeton to January 1990 when the Plaintiff was stationed at Campbelltown and encompassing a period of some years when he was the only police officer at Tallimba were also uniformly complimentary containing comments such as:-

“He is a very efficient and effective police officer.”

“He remains calm under pressure ... and completes allotted tasks in a satisfactory manner”

“... has an excellent manner when speaking to members of the public ... . He is very co-operative with all Police at this station and I feel could be entrusted to carry out any allotted task with minimum supervision or checking.”

“He is always immaculate in appearance, has a very positive and polite attitude towards the public. ...with very high moral standards, he is highly regarded in the village of Tallimba. In my opinion he is honest and trustworthy.”

“the Constable is always neat and tidy and his Station and records are a credit to him.”

“He is a valued worker.”

“... in his relationship with the public he constantly exceeds the requirements of the job.”

16 A work appraisal form relating to the Plaintiff and dated February 1990 while the Plaintiff was working at Campbelltown contains remarks to the effect that the Plaintiff was a valued worker, always willing to lend a hand and co-operate, very dependable, had a good relationship with the public and in this regard exceeded the requirements of the job, his integrity was beyond question and his adjustment to a very busy working environment after service in a one man country station was very pleasing.

17 I do not ignore the fact that in these reports the Plaintiff’s performance was often graded as satisfactory or “meets the requirements of the job” rather than some higher grading. Nevertheless, the passages I have quoted seem to me to fairly depict the assessments made by a significant number of his superiors as to the Plaintiff’s qualities and performance as a police officer.

18 In light of some later criticism of the Plaintiff’s performance, it is also appropriate to record that reports of March 1989 and February 1990, under headings of “Written Skills” and “Planning and Organisation” it was recorded:-

“Paper work is always concise and accurately expressed, neat and tidy.

Copes with routine matters with apparent ease. Has sufficient experience to be able to handle complicated matters if required.

Robert takes care with his written work which is presented in a clear, concise and correct manner.

Robert sets about his work so that it fits in with others. He likes to have everything in order, clean and tidy.”

19 The Plaintiff married in 1986, the same year in which he was posted to a one-man station at Tallimba.

20 In August 1988 the Plaintiff applied to attend an instructional training course at the Goulburn Police Academy and qualified for the role of a divisional training sergeant. That is not a rank but a qualification that enables its holder to handle new probationary constables when they emerge from the academy in order to integrate them into the police force and also to deliver on-the-course training lectures. The Plaintiff attended the course and was successful although he said his appointment to that role at Campbelltown police station did not occur until the day after the Dookie Hillier matter referred to below was resolved.

21 In March 1989, he again attended the Academy and qualified as a patrol commander, the qualification apparently necessary to be in charge of a police patrol. Such a patrol can be a one-man station or a region. It is a position rather than a rank. (The circumstance that the Plaintiff manned the one-man station at Tallimba prior to attaining this qualification was not explored in evidence.)

22 While at Tallimba the Plaintiff had a number of run-ins with a local identity who, in consequence of the use of his fists had acquired the name “Dookie” Hillier. One particular altercation led to Mr Hillier being arrested and convicted but he counterclaimed that the Plaintiff had assaulted him. The Plaintiff was convicted at first instance of assault occasioning actual bodily harm. He was placed on restricted duties until an appeal to the District Court was upheld.

23 According to the Plaintiff, the magistrate who convicted him was someone whom the Plaintiff some years earlier had arrested for driving under the influence but, due to the intervention of a superior officer, had not been allowed to charge. No application was made for that magistrate to disqualify himself, the Plaintiff saying that he had figured that in discharging his duties the magistrate would “lay down the law dead square and, and he didn’t” and, later, that the Plaintiff had no idea applications to disqualify could be made.

24 That conviction distressed the Plaintiff greatly. As he saw it, the conviction threatened his police career and changed the way he operated as a police officer. Although he had had legal assistance provided at first instance, that was denied him for the appeal, albeit an ex gratia payment in that connection was later made.

25 Prior to the determination of the appeal against conviction, the Plaintiff was moved from Tallimba to Campbelltown, a move that may well have been inspired by the conviction and the fact that he had been placed on restricted duties. This move occurred in about June 1989.

26 After some time at Campbelltown, the Plaintiff was moved to the “Transit Police”, and in this connection seems to have been based in Liverpool. A move to the Transit Police appears from the Plaintiff’s evidence, to have been, at least sometimes, by way of punishment although the Plaintiff said that he had earlier requested the move. I accept this evidence there being none that the Plaintiff’s move to that group was intended as a punishment to him.

27 On 5 July 1990, the Plaintiff was on duty and attended the cells at Liverpool Police Station. There he saw a prisoner, Scott Yuill hanging from the bars. He cut the prisoner down and immediately began mouth-to-mouth resuscitation. He declined an offer from another officer to take over that aspect of resuscitation instead of the cardiac compressions she was administering because “I have already been exposed” - presumably to the risk of AIDS or the like. After some 15 to 20 minutes Ambulance officers arrived and took over. At one stage they said that the prisoner was gone, but in fact he began to breathe and was taken to hospital with the Plaintiff in the van. It appears that the prisoner finished up brain-damaged.

28 During the course of the Plaintiff’s resuscitation attempts the Plaintiff was given a Laerdal mask, a device available to police officers to minimise or eliminate the risk of catching infections, but found that this did not work. Also during the resuscitation attempt the prisoner belched with an odour of pepperoni pizza and the Plaintiff said that he has not been able to deal with that smell since.

29 According to the Plaintiff, other officers stood around looking.

30 After the incident the Plaintiff was required to stay at the police station and talk about the incident. He found some of the discussion, inter alia a question whether he was troubled that his lips had touched the prisoner’s lips – offensive and inappropriate. He was advised to go and see the Police psychology unit. The Plaintiff did this a few days later, seeing a Robyn Deane-Butcher.

31 Within the next few days, the Plaintiff was interviewed – at least in one connection he preferred the term “investigated” – by Inspector Grace concerning the attempted suicide and some matters involving actual or possible misconduct by other Transit Police.

32 Inspector Grace and other police gave evidence. Most have retired from the Police Force but it will be convenient to continue to refer to them using the rank they had at the time. That said, I shall not always include the appellation “senior” before “constable” and “sergeant”.

33 Inspector Grace said that during his interview with the Plaintiff concerning the suicide, the Plaintiff had started to cry and he became so concerned for the Plaintiff’s welfare that he stopped the interview and later contacted a psychologist at the Police Welfare Branch. Inspector Grace said that before the interview he also spoke to Inspector McGoldrick who indicated to the effect that the Plaintiff was a fragile man. In cross-examination Inspector Grace agreed with the description of the Plaintiff as a sensitive person and said that he considered the Plaintiff to be highly strung.

34 In December 1990 the Plaintiff was serving at Newtown Police station and documents of 5 and 6 February 1991 say that he was transferred to that patrol to bolster the number of experienced Police at the patrol, describe his performance there as in a “most competent and professional manner” and refer to his “display of professionalism, enthusiasm and dedication”.

35 The Plaintiff was certified as unfit for work during the period. He would seem to have been suffering from glandular fever. Medical Certificates in Exhibit 31 cover 3 weeks although the Plaintiff’s evidence indicated it was longer. The Plaintiff was supported in this account by Exhibit K(A) which indicates he was off work from 4 March to 12 May 1991.

36 In May 1991 the Plaintiff attended the scene of a suicide at Central Railway Station where a passenger seems to have been hit by one train and thrown under the wheels of another. The Plaintiff’s involvement included collecting various body parts and assisting in the removal of the aftermath. According to the Plaintiff this had a significant impact on him and he attended the psychological section of the Police Force on 10 July in connection with it.

37 In about June 1991 the Plaintiff, who seems to have applied unsuccessfully for the position of lock-up keeper at Wilcannia was selected for that position at Menindee. Interestingly, in light of later events, the selection panel consisted of Senior Sergeant D J Burrows and Senior Constable R Blayden. The notes of the selection record that the two were unanimous in their view that the Plaintiff showed greater merit for the position and that among the other applicants was Constable K Strong. The Plaintiff took up the position at Menindee on 18 August 1991.

38 Before turning to events there, reference should be made to further evidence of the Plaintiff’s then psychological state. One document from the psychology section of the Police Service indicate that the Plaintiff was seen or spoken to by a member of that section on 9 July, i.e. 4 days after the suicide attempt in the police cells, 2 August and 26 October 1990 and 21 January and 10 July 1991. The reason stated on that document for referral – I infer the first contact - was “Pris Attempted Suicide in Custody”. A handwritten note of 26 October 1990 records, inter alia:-

“IA investigation into incident 25.10.90.

All prev. feelings revived.

Concerned about reaction.

Recently arrested addict (female) attempted suicide in cells – no damage.

Reassured of normal reaction.

Appears to have settled (unreadable) qualms.”

39 Later handwritten notes record, inter alia (The underlining of dates is mine.):-

“Bennie 21.1.91

Moved to Newtown – 3 years.

Prospect of country posting out of question.

Depressed.

...

Cleared of assault charges with costs.

Feels injustice – moved to city following charge.

Phone call: 3.5.91.

Wilcannia transfer refused...

Was distressed but feels better – papers in hands of legal officer.

Phone call 26.6.91

Notified of move to Menindee – delighted! ... Noted change in emotional state in Julie & baby as well as self.

Robert 10.7.91

Menindee on or before 18.8.91...

Ratified 1.7.91 telex sent

Mood swings

Worry – dreams/nightmares

- forget but worrying/sweats/distress

- himself beating someone up...

3.7.91 death on railway

3.7.91 ... senselessness, getting to him

- feels he isn’t getting away from it

Hanging – Scott Yuille 1 year ago

- no further correspondence

- “can’t close chapter”/”no catharsis”

- have been grilled, implied criticism

- others left

Worrying about decisions – whose problem?

From individual to societal

Gun – nearly shot policeman while apprehending offenders...

Worried about it.

Still think it – can never catch offenders in dream.

Worries – could have shot detective...

Menindee – abor popn – 200 yrs of probs

Robert – expected to solve society’s probs

- bandaid only possible

Maybe – “full of ugly” – job is “full of ugly”

People expect police to fix problems.

Clarification - ...

- concern about intrusive thoughts – rejected thought

stopping techniques

NB today 12 months almost to date of 1^st anniversary of cells suicide attempt.”

40 I should add at this stage that there was little evidence directed to the event that may have inspired the reference to shooting a policeman or detective and apprehending offenders. There was no evidence to suggest that the notes are not accurate in respect of those matters.

41 Mrs Bennie also gave some evidence concerning the condition of the Plaintiff prior to going to Menindee. She said that the Plaintiff has spoken to her of distressing events earlier than the incident involving Mr Hillier although without details. I do not infer from her evidence that the Plaintiff was distressed more than would be normal for most people by these earlier events. Mrs Bennie said that after the incident involving Mr Hiller, the Plaintiff had exhibited remorse at the injury he had inflicted on Mr Hillier, which consisted of or included some broken facial bones, and became very worried at being charged. He was distressed, he skipped meals, he had some difficulty sleeping at that time and did not have as much energy. She said that things were “pretty okay” from then until the incident involving Mr Yuill. Family life was happy and the Plaintiff kept up his fitness.

42 The incident involving Mr Yuill badly affected the Plaintiff who then had difficulty in sleeping and eating. Some things were not to be bought or cooked, others he only picked at and he lost weight. The Plaintiff suffered from sleeplessness, tossing and turning, and he suffered bad dreams. Mrs Bennie would find that the Plaintiff had left their bed in the middle of the night, and would be sitting up. She would talk to him, take him back to bed and the 2 would try to resume sleeping. Referring to visits to the Police psychology unit, he told her that it was good to be able to talk to somebody about the incident.

Menindee

43 As I have said, the Plaintiff took up the position at Menindee on 18 August 1991. The only other police officers serving at Menindee during the Plaintiff’s time there were Senior Constable Blayden and Constable Strong who had been seconded from Broken Hill, arriving there some 12 months prior to the Plaintiff. In Menindee the lock-up keeper’s house where the Plaintiff after his arrival resided was between the police station and Senior Constable Blayden’s residence.

44 The Plaintiff said that on his first arrival at Menindee, Senior Constable Blayden told him that the he should not pass on to Constable Strong information about persons being investigated because Constable Strong would pass on the information to those being investigated. Although it may be that if this occurred, it occurred at the barbecue referred to below, according to the Plaintiff, Constable Blayden also told the Plaintiff that Constable Strong had accounts with two shops which were far too high and almost certainly his accounts at the hotels were also too high.

45 The Plaintiff said that once having had the opportunity to form his own opinions of Constable Strong, those opinions were totally adverse.

46 On 23 August 1991, the Plaintiff arrested a Mr Flavell after a roadside test indicated he was driving with an excess concentration of alcohol in his blood. At the time Constable Strong searched the vehicle Mr Flavell had been driving and found a rifle with bullets in the magazine. He arrested the owner of the vehicle, a Mr Graham, for aiding and abetting Mr Flavell’s driving under the influence, possessing a loaded firearm in a public place and handling a firearm whilst under the influence. There was no breath analysis equipment in Menindee and the Plaintiff commenced to drive Mr Flavell to Broken Hill. While doing so, he received a radio call from Constable Strong who remarked that he was having trouble with Mr Graham. The Plaintiff suggested that Constable Strong lodge Mr Graham in the cells. On the Plaintiff’s return to Menindee he observed Constable Strong and Mr Graham in the same room of the station and noted that:-

“Constable Strong’s uniform was extremely untidy and messed up and the crutch of his trousers was torn and his underwear was showing through the crutch of the trousers at the front. His shoes were scuffed, his hair was a mess, and Mr Graham was just like meek, absolutely meek. I formed the opinion that he had been assaulted. I took him into a separate room and spoke with him...”

47 The Plaintiff went on to say that Mr Graham’s body language was completely incongruous with his words. Asked if Mr Graham made any complaint, the Plaintiff said “absolutely no complaint whatsoever, completely refused”.

48 It is common ground that at about this time - in evidence the Plaintiff agreed that it was 2 days later - the Plaintiff attended a barbecue at Senior Constable Blayden’s residence. A number of other government type employees, such as a fish inspector and a teacher were there. According to the Plaintiff a number of these persons made remarks about Constable Strong to the effect that he had been guilty of appalling policing behaviour, driving the police vehicle while intoxicated or under the influence of drugs, assaulting and verballing prisoners, threatening owners of male dogs when his own dog came on heat, and stealing money from the police station tea fund. The Plaintiff said that on that occasion he was also informed that Constable Strong had been sexually harassing one of the local shopkeepers, a Penny Papalouca.

49 According to the Plaintiff, as a result of these conversations and his own contact with Constable Strong, the Plaintiff formed the view that he was required to report Constable Strong’s actions to a senior officer and phoned a Sergeant Morton at Broken Hill. Soon after, on a date which, it seems to be accepted, was 28 August 1991, the Plaintiff had an interview in Broken Hill with Sergeant Morton. The Plaintiff maintained that his going to Broken Hill was not to get rid of Constable Strong; rather was his motivation to do what a police officer is supposed to do.

50 The Plaintiff said that he relayed to Sergeant Morton many of the matters he had heard about Constable Strong. Sergeant Morton suggested that Inspector Shipp, the Broken Hill Patrol Commander should be brought into the conversation. He was, and the Plaintiff repeated these matters to Inspector Shipp.

51 According to the Plaintiff, Sergeant Morton assured him that everything would be kept confidential. Inspector Shipp “launched into a short, extremely formal speech at me that sounded like it was a pre-prepared thing requesting me in formal terms to tell him whether I was making an official complaint”. The language of this speech was described as so suddenly different to the language that had been occurring before then that the Plaintiff formed the opinion that he was being set up and that the senior officers did not want to know. The Plaintiff also said that the body language of both Inspector Shipp and Sergeant Morton did not match their words. The Plaintiff felt he was being fobbed off and said that he was not prepared to make a formal complaint. After this, Sergeant Morton told the Plaintiff that he should keep a record of any future misdeeds of Constable Strong and report them and that Sergeant Morton would maintain a more diligent control of Constable Strong and would visit Menindee more often. The Plaintiff said that he was “freaked out” by Sergeant Morton and Inspector Shipp.

52 In cross-examination, the Plaintiff asserted that he gave Sergeant Morton the names of people who had supplied him with information although the only names he could recall mentioning were Penny Papolouca, her husband Michael and Jim Kennedy. He asserted that he mentioned the Graham incident to Inspector Shipp. He volunteered that, “I tried to make the complaint and it was refused, that’s what happened. The complaint was spat back in my face and I knew exactly what happened.” He denied that he had been told or advised to put the complaint in writing, also saying that each officer receiving the information the Plaintiff had was obliged to pass it up the chain of command until it reached the Internal Affairs section. He acknowledged that he did not know how good his information was, adding that he made that clear to those he spoke to.

53 Some further evidence as to what occurred at this meeting is to be found in an aide-memoire the Plaintiff prepared on 28 October 1991 and part of which is quoted below. However, it does not seem to me that takes the matter significantly further.

54 Sergeant Morton was called. He agreed with the Plaintiff’s evidence of a preliminary phone call and that there was then a meeting between them both and that he then called in Inspector Shipp. Although he said that he could not recall any conversation dealing with the topic of confidentiality during the course of his meeting with the Plaintiff, (and later that he left the topic of confidentiality to Inspector Shipp) he had shortly before that given evidence to the effect that at an early stage of his meeting with the Plaintiff he said that he would treat the meeting as very confidential.

55 Sergeant Morton said that the Plaintiff had alleged that Constable Strong was drinking alcohol on duty and to excess off duty, smoking marijuana, had been verballing and possibly assaulting prisoners. Sergeant Morton denied that the names of any victims of Constable Strong’s alleged misbehaviour were mentioned. He thought that he would have asked for names but that the Plaintiff said that he would go back and talk to Constable Blaydon before taking the matter further. Shortly after that evidence he agreed that he had made no attempt to tease out the name of somebody who might support the information he had been given. Later Sergeant Morton said that the Plaintiff had not been prepared to identify any person who made allegations against Constable Strong.

56 Sergeant Morton said that the Plaintiff was asked by himself or Inspector Shipp to put his complaints in writing and the Plaintiff declined. Asked if there was any discussion about the reason as the Plaintiff understood it for Constable Strong being in Menindee, Sergeant Morton said he thought that the Plaintiff might have made mention about transfer for punishment or the like. Sergeant Morton said that so far as he was aware there was no such procedure by way of punishment.

57 Sergeant Morton said that he took the view that having brought Inspector Shipp into the conversation, his obligations were fulfilled. He said that he played no part in receiving further allegations from the Plaintiff concerning Constable Strong and had no part in following up those he had received and although he went to Menindee later in his capacity as licensing sergeant, he did not seek to inform himself about the Plaintiff’s allegations. Sergeant Morton said that he did not divulge to anyone the information he had received from the Plaintiff.

58 The Plaintiff said that prior to making his report to police in Broken Hill about Constable Strong, he did not say anything to Constable Blayden about going to Broken Hill. He said that after the conversation with Sergeant Morton, he did speak to Constable Blayden about Constable Strong, adding that Constable Blayden spoke to the Plaintiff quite often about Constable Strong telling him a lot of “stuff”. In the context of being asked if he knew he had to report misconduct to a superior officer, and whether Constable Blayden was his superior officer, the Plaintiff was then asked what had he heard about Constable Strong that Constable Blayden did not tell him, the Plaintiff said, “not much”, going on to say that when he repeated to Constable Blayden, information he the Plaintiff heard from others, Constable Blayden would say something confirmatory.

59 Asked if he saw Constable Blayden as being derelict in his duty in supplying the Plaintiff with information about Constable Strong’s illegal or misbehaviour, the Plaintiff said:-

“I saw him as being in an extremely difficult position. I thought he was trying to do something by telling me, by asking me to help him.”

60 Constable Blayden said that he was aware of rumours in Menindee about Constable Strong (and himself and others) but that they were untrue. He said that Constable Strong was a bit rough around the edges, untidy and a bit of a slob but a good policeman. He never saw Constable Strong affected by marijuana or, while on duty, affected by alcohol.

61 Constable Blayden denied having said anything to the Plaintiff to the effect that he suspected Constable Strong of warning criminals about police activity or of pinching tea money. Constable Blayden went on to say that he did not remember there being a tea fund, given that residences were next door and coffee could be had, or brought from, those places. He said that some months before the Plaintiff’s arrival, Mrs Papoleuca had informed him about some inappropriate sexual comment made by Constable Strong adding also that she did not want Constable Strong to get into trouble in that regard and she was telling Constable Blayden so he would know what it was about if she gave Constable Strong a clip over the ear or hit over the head. Constable Blayden could not remember if he mentioned this incident to the Plaintiff.

62 Constable Blayden said that he could not remember saying anything to the Plaintiff in his first few days about Constable Strong and later that he had made no remarks adverse to Constable Strong to the Plaintiff. He said that early in the Plaintiff’s time at Menindee the Plaintiff had said to him that he thought Constable Strong was a pig of a man or policeman and wanted to know what could be done about getting rid of him. When it was put to the Plaintiff in cross-examination that, early in his time in Menindee he had remarked, “What are we going to do about getting rid of Strongy? We would be better off if it was just the two of us out here. There is no need for him to be here.”, the Plaintiff said that sounded fair enough.

63 In evidence that does not sit happily with some referred to in the immediately preceding paragraph, Constable Blayden also said that he did not remember the Plaintiff voicing to him any concerns about Constable Strong. Constable Blayden also said that he himself did not voice any concerns about Constable Strong to the Plaintiff.

64 Although by the time of trial before me, Constable Blayden’s memory on the topic had failed him, in earlier proceedings he had said that by 30 August he knew or at least believed that the Plaintiff had complained about Constable Strong.

65 Constable Blayden said that some weeks after the Plaintiff arrived, he received a phone call from someone from the Broken Hill police asking him to ask around a bit on the topic of Constable Strong’s involvement with drugs. Constable Blayden could not remember if the instruction was wider but no other information was supplied to him. Constable Blayden uncovered no information and reported this to Inspector Shipp. This evidence conforms with part of the contents of a statement made by Constable Blayden on 1 December 1991 to the effect that Inspector Shipp had contacted him in relation to an allegation that Constable Strong had been smoking marijuana, asked Constable Blayden to make discreet enquiries and that Constable Blayden had been unable to find any indication that the allegation was true. Constable Blayden suspected that the Plaintiff may have been the inspiration for the instruction but said that he did not communicate this suspicion to anyone else.

66 On 6 September 1991 it would seem that the Plaintiff was expressing his views about both Constable Strong and Constable Blayden to someone in the Psychology section of the Police force. A typed document in Exhibit N, a selection of records from the files from the Psychology and Welfare Management sections of the Police Force, records inter alia,

“Sen. Const. Ric Blayden (Menindee) is O.I.C. “a good cop but drinks a lot”

Kevin Strong is other officer at Menindee (violent and a drunk)

“Robert has a problem with his colleagues at Menindee. Both drink heavily but one is also violent – assaults on members of the public. One bashed an offender in the cells when the other two police were away. Robert claims that the boss at Broken Hill won’t confront him (he has his own problems – shoplifting).

Strong has 2 District Court appearances about assaults on the public coming up at Broken Hill. In one matter there are 8 or 9 police who are testifying that he did commit the assault and that it was unjustified.

Strong is reported to both drink and smoke marijuana at parties (with other townspeople present). Yet he will arrest someone for possession of a small amount of marijuana.

There is one instance when he was drinking at a party and couldn’t be found for some extended period of time. He was required to go to a domestic and when his wife found him and abused him he went to the domestic (drunk and driving the police vehicle), ranted and raved at the couple and publicly threatened to shoot the male for causing Strong marriage problems. It seems that it is not unusual for him to drink and drive police vehicles.”

67 At the foot of the document and written in handwriting are the words:-

“I will contact an I.A. person who owes me a favour re this.

At this stage there is nothing for you to do

(Frank McGoldrick)

(Pat McGonigle).”

68 The Plaintiff gave evidence of a conversation with Dr Westerlink from the Police Psychology Unit in the course of which the Plaintiff said that he was seeking advice and Dr Westerlink told the Plaintiff that he should contact Chief Inspector McGoldrick of Internal Affairs Sydney or Internal Affairs North West.

69 Asked what the conversation with Dr Westerlink was about, the Plaintiff said that he did not know what to do about the Strong situation, he had been freaked out by Sergeant Morton and Inspector Shipp, Strong was still continuing to do what he was doing and nothing was changing. The Plaintiff said also that, at some stage that appears to have been after the conversation with Sergeant Morton, he had had a conversation with Mr Papaleuca who had told the Plaintiff that he did not want police involvement and he was going to take care of the situation himself. This, according to the Plaintiff, scared him out of his mind and persuaded him that he had to get something done.

70 According to the Plaintiff, Dr Westerlink said that relaying to Inspector McGoldrick the information he had would enable Inspector McGoldrick to pass the information over to Internal Affairs South West as confirmed but anonymous, an investigator who then came out to investigate would be able to ask the Plaintiff a series of questions that the Plaintiff would be required to respond to without it appearing that he was volunteering information about a fellow officer.

71 The Plaintiff seems to have accepted the suggestion of his counsel that his conversation with Dr Westerlink occurred at the end of October 1991 and the date of a memo the Plaintiff prepared at the request of Inspector Grace tends to support a date close to this. However, a comparison of the Plaintiff’s evidence of the content of the conversation with Dr Westerlink and of the printed document 6 September 1991 suggest that that was the date of the conversation. On the other hand, the Plaintiff’s evidence concerning Strong still continuing to do what he was doing also does not fit in readily with the conversation occurring as early as 6 September, once regard is had to the duty rosters for Menindee during the relevant period. These record that the 3 policeman at Menindee were on leave and rest days contiguous therewith as follows:

Constable Strong 1 to 22 September

Constable Blayden 15 September to 21 October

Constable Bennie 1 to 27 November

72 The Plaintiff said that he did contact Inspector McGoldrick and that the latter “told me that he would pass my information over to Inspector Grace of Internal Affairs South West enabling Inspector Grace to formulate questions for me to be asked by an investigator so that I wouldn’t be seen to be volunteering information” and Mr McGoldrick “assured me that my confidentiality would be maintained”.

73 Apart from the duty rosters, the next contemporaneous record of events apart from the duty rosters seems to be an entry made on 5 October 1991 in the Plaintiff’s duty book which refers to what would seem to have been an acrimonious exchange with a Broken Hill police officer. She apparently criticised the Plaintiff’s manner of speaking and said he was being insubordinate but said that, depending on the Plaintiff’s behaviour, she would not take the matter further. The Plaintiff’s notes include a commentary “UNPROFESSSIONAL, THREATS ON HALF TRUTHS ...not effective and professional Policing”. It is to be inferred that the other officer involved was a Constable Rodereda.

74 On 6 October the Plaintiff arrested a Mr John Rae who had been driving a car when it rolled over. The Plaintiff said that he called for and obtained assistance from another officer who drove to Quandong, a town approximately half way to Broken Hill and where not uncommonly a vehicle from Menindee would meet one from Broken Hill so that the vehicle and police from Menindee were not out of town too long. On this journey, Mr Rae and the Plaintiff were seated in the back seat of the police vehicle. According to the Plaintiff he disliked the fact that while Mr Rae was speaking during this journey he was turning his face and constantly leaning towards the Plaintiff and emitting spittle that was striking the Plaintiff in the face. To prevent the continuation of this conduct the Plaintiff grabbed Mr Rae by the shirt, pushed and held him away from the Plaintiff. I summarise below another version of this incident.

75 The next significant event seems to be one the subject of a report of 25 October 1991 from Senior Sergeant Burrows, described as a District Staff Officer. In that report Sergeant Burrows records that, pursuant to a Directive, on 24 October he conducted “preliminary enquiries” in regard to allegations of assault of persons in custody by Constable Strong. Sergeant Burrows said that he initially interviewed Constable Strong who denied any allegation of assault or excessive or unwarranted use of a police baton and that he himself then spoke to a number of people in Menindee concerning “Police Service delivery”. These included two from an aboriginal housing co-operative, a wool, hide and skin dealer, two persons in the main street, Mr Cox the licensee of an hotel and Mr and Mrs Papalovich, the owners of the Menindee Supermarket. Mr Cox is recorded as saying that Constable Strong was considered a regular in the hotel but Mr Cox had no problems with him. The part of the report dealing with Mr Papalovich – one may infer a misnomer for Mr Papoleuca - records the following:-

“Spoke highly of the Police Service delivery to the community. He stated that Constable Strong was a regular customer to his store and on one occasion whilst intoxicated and off duty had made an offensive suggestive remark to his wife. His wife apparently dealt with the matter in her own way. He and his wife regarded the matter was finalised and wished no further action. Mr Papalovich was concerned however that Constable 1/c Bennie, Menindee sector, had approached his wife in an attempt to solicit the lodgement of complaint against Constable Strong over the incident.

He and his wife will not be involved in any dispute between these officers.”

76 The report concludes:-

“From the information gathered during this brief cross section community survey there is no evidence to warrant a full investigation being conducted in relation to the allegations against Constable Strong. Likewise there is no evidence to support the preferment of any criminal or Departmental charge against any officer attached to that station.”

77 Because of some later comments concerning the Plaintiff, I should note also that in the report it is recorded to the effect that the 2 persons from the aboriginal housing co-operative, and the wool, hide and skin dealer community spoke highly of the policing service delivery to the community, had knowledge of all police attached to the sector and had no complaints or concerns about any of them. The hotel licence was very happy and had no gripes with the Police Service. Apart from “Michael Papalovich”, the only 2 other persons spoken to, had praise and made no complaint.

78 The copy of Sergeant Burrows’ report that came into evidence bears an imprint dated 29 October 1991 of the Police Internal Affairs Branch.

79 Senior Sergeant Burrows was called. He gave evidence that at the time he was personnel officer for Chief Superintendent Allen the District Commander of the Broken Hill District at the time. He could not recall whether he knew whether the Plaintiff had been the source of the allegation that he went to Menindee to investigate nor specifics of the conversation he had had with Constable Strong.

80 Inspector Allen gave evidence that he had directed Sergeant Burrows to go to Menindee and authorised him to speak directly to Constable Strong. Challenged that this course would lead to the plain deduction that the Plaintiff had complained about Constable Strong, Inspector Allen said that while in the case of all Internal Affairs inquiries the complainant should not be known, in 90% of cases he was, and that by October it would have been common knowledge that the Plaintiff had complained about Constable Strong.

81 On 28 October the Plaintiff had a telephone call with Inspector Grace, then of Internal Affairs, South-West. The Plaintiff gave him an account of his concerns about Constable Strong and Inspector Grace asked the Plaintiff to send him a written aide-memoire to assist Inspector Grace in formulating questions to be asked. Again the Plaintiff was assured that his anonymity would be maintained. The Plaintiff prepared the aide-memoire which is dated 28 October and faxed it to Inspector Grace. In turn Inspector Grace passed a copy of the document on to the Ombudsman and the commander of the police Internal Affairs Branch, Sydney. That concluded Inspector Grace’s involvement in the matter.

82 The aide-memoire is something over 7 closely typed pages long. Included in it are statements to the following effect:-

The report is for the use of Inspector Grace only and I deny permission for any other person to read it without the express permission of Inspector Grace or the author.

Kevin Strong is extremely gruff and abrasive in his manner and a heavy drinker. He spends a deal of time in the local hotel. I believe Kevin to be the wrong type of person to be a member of the Police Service. I believe the power afforded him by the position he holds has swayed him.

Almost every person I have spoken with has at least one story to tell regarding Kevin. None of them have been complimentary.

The situation in the town has reached a point where the town folk would be ready to accept almost any accusation made against Kevin, with or without valid cause. The amount of damage being afforded to the Police Service cannot be overstated. Every person he arrests is believed to be in grave danger of being assaulted. Even if they are not assaulted, all they have to do is make a mild suggestion that he was in any way rough with them and they are immediately believed.

I am able to relate the following information on the understanding that with regard to the greater portion of the events I was not actually present. Much of it is hearsay but it has been reported so often by so many different people that the probability of it being true approaches certainty.

It is a very widely held view that Kevin attends parties and BBQ’s while on duty... The point of interest is that he is in uniform driving the police vehicle under the influence of alcohol to the point of drunkenness and smoking marijuana in view of the public.

Kevin holds a hatred of one of the town low lives, James Kennedy. Kevin told the Plaintiff that Kennedy has laid a complaint of brutality during an arrest made by Kevin. On an occasion when Kevin was the only police officer in town, his wife Debbie, not having heard from him for some hours, contacted Linda Blayden and asked if she knew his whereabouts. Linda Blayden was unsuccessful in contacting Kevin on the radio. Some further hours passed and a report of a serious domestic involving Kennedy was received. Linda Blayden again sought to contact Kevin by radio without success and then contacted Broken Hill. Broken Hill police advised her to make further enquiries at hotels. She did so and was told that Kevin was at a party with two persons named and said to be well-known marijuana users. Debbie drove to the party where a loud, swearing, threatening argument followed between her and Kevin in the course of which she informed him she was leaving him. Kevin was well affected by alcohol but left the party and attended the Kennedy residence. James Kennedy had left. Kevin began abusing James Kennedy’s wife Eileen using “extremely foul and profane language” and blaming her for the break down of his marriage. He left with the stated intention of shooting Kennedy. Eileen contacted Linda who contacted Kevin and instructed him to return to the station.

There is a particularly ugly confrontation developing between Kevin and the Papalouca family. He propositioned Penny Papalouca and when he was rejected became firstly insistent and then abusive and threatening. Mrs Papalouca feared that her husband would do something silly towards Kevin. She also informed the Plaintiff that she was in constant fear of Kevin to the point that she exercised her dog 12 kilometres away rather than in the Menindee area. Kevin had a large account at the Papalouca store which Mrs Papalouca felt unwilling to deny for fear of retribution. Kevin had abused and threatened Marianne Papalouca, aged 12. Michael Papalouca told the Plaintiff that he does not trust police to control other police and if there are further difficulties he will “get my own people on it”.

The circumstances of the arrest of Flavell and Graham were described. The Plaintiff’s wife informed the Plaintiff that at about the time he advised Constable Strong to lodge Graham in the cells she heard a commotion coming from the station and Graham yelling and screaming for a short time. After Graham’s release the Plaintiff questioned Constable Strong about Graham becoming subdued, to which questioning Constable Strong responded that it had been necessary to “give him one or two in the ribs to quiet him down”.

On 31 August 1991 Kevin arrested a Richard John Cain. The Plaintiff and Senior Constable Blayden attended the station. Cain showed signs of having been assaulted and Kevin was more dishevelled than usual. Senior Constable Blayden took Cain aside and questioned him but he denied he had been assaulted.

A “school of thought exists among police in the Broken Hill patrol” that Kevin is not to be trusted with certain information and shortly after the Plaintiff’s arrival in Menindee Constable Blayden advised the Plaintiff not to give information about possible arrests to Kevin who would pass on information to offenders.

Patrick Parkes has informed Anne-Marie Kelly that Kevin regularly smokes marijuana with him and his friends.

Kevin told the Plaintiff he is in some trouble due to one or two separate arrests involving violence towards those in custody. Kevin told the Plaintiff that he gave some juveniles “a few kicks up the arse to teach him a lesson” and this conduct incensed the Manager of the Big W store that he laid a complaint.

Beryl Philp said she was aware of drug taking and assaults by Kevin, feels betrayed by Broken Hill police in their handling of the matters, and would be willing to speak to senior police.

Constable Blayden, who is an extremely efficient police officer, should not be held accountable for the situation.

On 28 August 1991, the Plaintiff spoke to Sergeant Morton and Inspector Shipp. Neither appeared surprised but Inspector Shipp appeared completely uninterested. It is apparent that no action has emanated from Broken Hill in relation to the Plaintiff’s complaints.

83 On 30 October Constable Blayden received a letter from a Mr Astill, the head of the local volunteer fire brigade and on 14 November sent the letter off to Inspector Shipp. Mr Astill was called. He gave evidence that following a time when the fire truck sirens had been used going through town – with the prior sanction of Constable Blayden – the Plaintiff had asked him about the fact and following receipt of Mr Astill’s explanation had shook his head and made some remark to the effect “boys and their toys”. Mr Astill was offended by this and the incident and the belief that he had been spoken to without proper courtesy was the subject of Mr Astill’s letter.

84 Mr Astill also gave evidence that Constable Strong’s conduct was exemplary as far as he knew and that the town did not have a problem. He would not agree that Constable Strong was often untidy in his appearance. When asked about Constable Strong’s drinking, Mr Astill’s answers struck me as somewhat defensive of Constable Strong rather than frank.

85 Mr Astill also gave evidence of an occasion on 30 October 1991 when Constable Bennie attended a call to a hotel where 2 aboriginal men were fighting, asked what the problem was and was given the reply, “Can’t you see the problem”. According to Mr Astill, the Plaintiff appeared to be offended and turned around and walked out. Mr Astill said that subsequently if there was a problem at the hotel and it was known Constable Bennie was on duty, those at the hotel would not bother ringing.

86 Also on 30 October, Sergeant Morton and Inspector Shipp attended Maiden’s Hotel in Menindee. Constable Strong was in the hotel apparently drinking and he and Sergeant Morton and possibly Inspector Shipp engaged in conversation. Constable Strong informed Sergeant Morton that the Plaintiff had assaulted a prisoner. On their way back from Menindee, Sergeant Morton was told by Inspector Shipp to investigate the allegation and later spoke to Constables Lenardon and Barham and a Mr Tucker who, according to Sergeant Morton, approached him.

87 The latter informed Sergeant Morton that an employee of his had been assaulted by a constable in Broken Hill. Sergeant Morton suggested the employee call and talk to him. Sergeant Morton said that the employee did so, although it appears from later evidence of Sergeant Morton that this was only after he chased up the employee who was Mr Rae. Mr Rae made a written statement dated 4 November 1991 which, admitted on a limited basis and not as the truth of its contents, became Exhibit 5. The cross-examination of Sergeant Morton as to the taking of this statement suggests a very casual approach to the investigation of the matter.

88 Sergeant Morton then made enquiries of Constable Barham who had been involved in escorting Mr Rae to Broken Hill after his arrest by the Plaintiff. He said that he also made enquiry of Constable Lenardon who he said was similarly involved.

89 Senior Constable Barham was called. He gave evidence that on 1 November 1991 he had prepared a letter addressed to the Broken Hill Patrol Commander. In the letter he set out an account of events on 6 October when he said that Mr Rae had been transferred from the cage of a police vehicle driven by the Plaintiff to the one Constable Barham was driving. The Plaintiff also transferred to Constable Barham’s vehicle, both he and Mr Rae occupying the back seat and the vehicle drove in the direction of Quandong. Constable Barham recorded some acrimonious conversation, mainly emanating from the Plaintiff, the fact of further conversation he could not hear properly and then said he heard a loud slap and the Plaintiff say, “if you want another one, keep talking loser”. To this Mr Rae replied, “Look, I’m handcuffed. How can I hit you back. That was real big of you hitting a man with his hands cuffed behind him”. The report went on to say that Constable Barham knew he should have reported the matter as soon as possible but was scared of repercussions.

90 Constable Barham denied that he had been directed to make the report although he had probably discussed the matter with Sergeant Morton a week or so after the incident. Except for raising the possibility of rest days, he provided no reasonable explanation for the passage of time between 6 October and 1 November. He agreed in cross-examination that the Plaintiff at some time had been holding Mr Rae at arms length. He denied hearing that the Plaintiff had made a complaint about Constable Strong. I noticed nothing about Constable Barham’s demeanour that positively detracted from his evidence but he was not an impressive witness and he seemed appreciably less than frank when asked questions concerning Mr Rae’s state of sobriety.

91 On 1 November 1991 Constable Lenardon made a report addressed to Inspector Grace to the effect that on 23 October 1991 he had assisted Constable Bennie in escorting a prisoner King to the charge dock of the Broken Hill Police station, that he then returned to the charge counter and proceeded to enter some records. He heard a shuffling noise, looked up and saw King lying on the floor and the Plaintiff standing near the charge dock. The report concludes:-

“Although the Prisoner KING did not make any complaint to me that he had been assaulted, I am of the opinion that the Prisoner may have been assaulted by Constable BENNIE. It must also be considered that the Prisoner KING appeared to be heavily affected by intoxicating liquor or a drug or both.”

92 Having regard to the terms of s69(3) of the Evidence Act, and the recognition of counsel in the case of an earlier statement that, without the calling of the author, it could not be advanced as evidence of the truth of its contents, I take the same view in relation to this document. Be that as it may, it strikes me as surprising that, with so little to say of matters he had witnessed, Constable Lenardon should have bothered to make or file such a report.

93 Sergeant Morton forwarded all the reports and statements he had obtained to Inspector Grace and said that his involvement in the investigation of Constable Strong’s complaint then ceased. Sergeant Morton was challenged as to why he followed up Constable Strong’s complaint but not that by the Plaintiff. He said it was because he had names in the one case and not in the other. He denied a suggestion that he had “actively assisted in an attempt to put Mr Bennie in a bad light before any investigation into his allegations against Constable Strong could be carried out”.

94 Although there was nothing in the demeanour of Sergeant Morton that argued against his credibility, there were two topics in his evidence that do not reflect well on that credibility. In the course of being challenged on the fact that he followed up matters Constable Strong brought to his attention but not those the Plaintiff did, Sergeant Morton was asked “You had not made any enquiries about Mr Bennie’s complaint, had you?” Sergeant Morton replied, “At his insistence.” That and another answer soon after to similar effect is inconsistent with evidence I accept as to what occurred during the meeting on 28 August. It tends to be inconsistent with the fact that Inspector Shipp did instigate some investigations and does not correspond with other evidence Sergeant Morton gave.

95 The second topic on which Sergeant Morton’s answers do not inspire confidence that he was doing his best is when he was cross-examined on a view that Constable Strong’s complaint was “tit-for-tat”. He seemed to me to be hedging.

96 Also on 1 November, according to Constable Blayden, he found a small tape recorder. Originally his evidence was that he found it on the floor of the office although he conceded that he had also said that he found it wedged down behind a desk. Unsure as to whose it was, he looked in the miscellaneous property and exhibit books and finding no reference there, locked it in a safe. Some days later he asked Constable Strong if it was his. Constable Strong said “no” and then Constable Blayden listened to it and realised that it contained a recording of a conversation between the Plaintiff and a Broken Hill officer, Constable Rodoreda. Constable Blayden spoke to Constable Rodoreda and then informed Inspector Shipp and was told to put in a report and forward the tape player to the inspector’s office.

97 In the report, which was dated 6 November, Constable Blayden said that when he became to the realisation that the tape recorder was the Plaintiff’s he recalled knocking the Plaintiff’s briefcase to the floor on 31 October and its contents spilling. He thought he must have not noticed the tape recorder when retrieving those contents and believed the tape to be an illegal recording of a telephone conversation.

98 Constable Blayden gave evidence that he became aware of Inspector Shipp and Sergeant Morton visiting Menindee in September or October and making enquiries about Constable Strong or the Plaintiff. Constable Blayden also said that although no police officer gave him information concerning the Internal Affairs enquiry, some of the locals, including the Papoleucas did.

99 On the instructions of Inspector Shipp, on 24 November 1991 Constable Blayden also submitted a report on Constable Strong. In the course of the report Constable Blayden said that initially Constable Strong’s appearance and approach to the public left a lot to be desired but were now satisfactory, he was very keen in regard to police work sometimes attending to outstanding matters whilst off duty, that public opinion concerning him varied, some persons respecting and others disliking him, that comments had been passed in relation to his drinking habits but that was to be expected in a small community and Constable Strong’s habits had not brought discredit upon the police service or interfered with his work. Constable Blayden went on to say that some friends had informed him they were not happy with an incident involving Constable Strong which occurred while he was off duty but they did not wish to take the matter further and had informed Constable Blayden that the Plaintiff had approached them soliciting the lodgement of a complaint against Constable Strong - something they declined to do.

100 Constable Blayden also said that a personality clash had occurred between the Plaintiff and Constable Strong and Constable Bennie had apparently taken community gossip concerning Constable Strong as true. Constable Blayden expressed the view that he could rectify any difficulty in the two other officers working together.

101 Constable Blayden also said that he had worked with Constable Strong on numerous occasions, at no time had he become aware of Constable Strong using excessive force and records show that over the last 14 months, Constable Strong had only twice charged offenders with resist arrest and Constable Blayden was aware of only one occasion when Constable Strong had used a baton and Constable Blayden had never received a complaint from a person in custody of being assaulted. Constable Blayden concluded the report by saying he was satisfied with the performance of Constable Strong who was a capable police office but did require periodic supervision.

102 On 18 November arrangements were being put in place for members of the police Internal Affairs department to go to Menindee. On or soon before 28 November while he was on annual leave, the Plaintiff received a call from Constable Blayden saying he was required on the following day to participate in an Internal Affairs investigation. On 28 and 29 November Detectives Glasheen and Arender interviewed the Plaintiff.

103 A number of separate topics were the subject of interview. The first was an allegation that the Plaintiff had assaulted the person King on 23 October 1991. The second concerned the recording of the conversation between the Plaintiff and Constable Rodoreda on 5 October 1991. Both of these interviews occurred on 28 November. On 29 November there was firstly at 2.10 pm an interview about an allegation that the Plaintiff had assaulted Mr Rae on 6 October and later an interview concerning the report the Plaintiff had submitted concerning Constable Strong.

104 Prior to any of the formal interviews commencing Detective Glasheen informed the Plaintiff that he intended first to deal with the allegations against the Plaintiff who gave evidence that this was the first he had heard about any of them. According to the Plaintiff Detective Glasheen expressed the view that Blind Freddy could see that the Plaintiff was being set up. Detective Glasheen also provided the Plaintiff with a copy of the Listening Devices Act and drew the latter’s attention to a provision that said that a person who was recording his own conversation to protect his own lawful rights was not committing an offence. It seems that these events occurred prior to the formal interviews. The Plaintiff also gave evidence that the detectives had with them a copy of the aide-memoir he had sent to Inspector Grace, a fact that concerned the Plaintiff because he was not longer anonymous.

105 In the course of the formal interview concerning Constable Strong, the Plaintiff said that he wanted to delete nothing from his earlier report but to add certain points. He said the report was written out of desperation. It had become obvious during the course of informing Inspector Shipp of his “fears” that he was being unsuccessful in his efforts and it was then suggested to him that it would be better if he were not to make an official complaint at that time. It had been suggested to him that he should leave the matter with Inspector Shipp and Sergeant Morton, the latter undertaking to attend Menindee without notice in an attempt to gain information. The Plaintiff said that he was also told that if he was able to gain concrete evidence then he should provide it and action would be taken. The Plaintiff said that he was appalled that nothing had apparently happened.

106 The Plaintiff emphasised that none of the information he had provided (in his oral or written reports) was of a first hand nature. What he was seeking was that the persons mentioned in the report be spoken to. The Plaintiff went on:-

“Due to what I believe to be an absolutely appalling management, we are left in a position at Menindee where the greater proportion of the population would be willing to believe almost any allegation levelled against Kevin. The same can be said by way of association of both Rick Blayden and myself.”

107 The Plaintiff then expressed some minor reservations or qualifications to his aide-memoire or report of 28 October. Later there were the following questions and answers:-

“Q. Can you work with Kevin Strong?

A. Absolutely not. No matter how much change he exhibited I could never again trust him to act responsibly or fairly.

Q. Bearing in mind that Constable Strong’s secondment finishes in 1992 can you do your job properly whilst the two of you are attached to Menindee?

A. Definitely not. It has become apparent to me that Kevin has become aware of the fact that this investigation has been initiated by me. As a result of that I would be constantly looking over my shoulder with a fear that Kevin may in some way attempt to influence me to in some way retract my evidence or if unsuccessful to exact some form of retribution against me.”

108 Asked what he expected the Police Service to do about Constable Strong the Plaintiff said “to fully investigate the information given” and, depending on the result, take further consequential action. Asked if he believed he was being partially critical, the Plaintiff said he had agonised and spoken to his psychologist over that point and accepted it was impossible for him to be totally objective. Asked if he discussed his report with Senior Constable Strong (sic) the Plaintiff replied, inter alia,:-

“I did not make Rick aware of the existence of this report but I did attempt to bring to notice to Rick the dangers involved of being a supervisor of such a police officer. I did not expressly discuss any of the allegations made, as I formed the opinion that Rick was aware of some if not all of the allegations. As much of the information I gained either came from or was confirmed by Linda Blayden. I am also aware that Rick was doing as much as he believed possible with a view to the permeating the police culture of protecting your co-workers and the added difficulty of absolutely no support from above.” (sic)

109 Asked if he believed that Constable Blayden was a good supervisor and performing his duties adequately, the Plaintiff replied:-

“I can state without reservation that Rick is the finest rural police officer that it was been my pleasure to work with... Rick is a man gifted, a rare man gifted with the ability to deal with princes or paupers, prostitutes or bank managers, and give each of those persons what they need... He is a credit to the police service and no blame whatsoever should be levelled against Rick if any of these accusations are substantiated. In saying that I must point out that for one reason or another Rick and I do not get on very well socially. But that in no way diminishes my opinion of him as an exceptional police officer.”

110 According to the Plaintiff in conversation with Detective Glasheen after the interviews on 29 November and also on 1 December, Detective Glasheen informed him that he would be moved from Menindee and Constable Strong would be retained for another 12 months. He said he was told that the complaints against Strong had been dismissed but the Plaintiff would have to wait to find out whether the complaints about him had “been handled or whatever”. The Plaintiff resented that Constable Strong was being retained and that he was going.

111 At some time on or about 29 November Detective Arender told the Plaintiff that she was going to speak to Mrs Papoleuca, returning several hours later and informing the Plaintiff that Mrs Papoleuca did not want to complain. Some pages from Detective Arender’s duty books and day sheets were tendered. They show interviews with, inter alia, on 28 November Lawrence King, and on 1 December 1991 with a Mr Poulos, the proprietor of the Café Menindee, and Mrs and then Mr Papoleuca. The documents also refer to interviews having been conducted with the three Menindee police officers and their wives. An attempt to speak to a Maree Hall is recorded but it is noted that she did not want to be interviewed. There is not evidence in Detective Arender’s note book (or anywhere else) of any attempt to speak to the numerous other persons named in the Plaintiff’s aide-memoire.

112 It is unnecessary to detail all the remarks recorded in these notes. It is sufficient to say that between them Mr and Mrs Papoleuca confirmed that Constable Strong had been drunk on occasions, that his drinking was “mostly in his time”, that there had been an incident where he had been rude to and threatened their daughter, and another incident between him and Mrs Papoleuca but that he had apologised and they did not want to take that incident further. They also indicated that the Plaintiff had sought to stir things up in that regard. They indicated that they were happy with the state of Constable Strong’s account. Asked if she was aware of any infighting between the three police in the town, Mrs Papoleuca said that everybody knew that the Plaintiff did not like Constable Strong.

113 Mr Poulos made no remarks critical of either Constable Strong or the Plaintiff, observing that the latter seemed to be fitting in okay.

114 Constable Blayden said that while Detectives Glasheen and Arender were in Menindee they spoke to the three police officers, Mrs Papoleuca and a few locals and required him to submit a report concerning both Constable Strong and the Plaintiff, addressing his knowledge of both constables in relation to their work and behaviour. Constable Blayden’s report, dated 1 December 1991, became Exhibit 11 before me.

115 In that report, Constable Blayden said that he had never received a complaint in relation to, and never had to counsel, Constable Strong who was a very knowledgeable street policeman and who was efficient and effective in his duties albeit having scope for improvement and might be considered immature in some respects. Constable Strong had gained the respect of many in the community albeit there were some who believed he was “very hard, unfair and rude”. Constable Blayden also said that in August 1991 he had been asked by Inspector Shipp to make some discreet enquiries concerning a suggestion that Constable Strong was smoking marijuana but Constable Blayden was unable to find any indication that the allegation was true. He acknowledged there had been a rumour around Menindee about Constable Strong smoking marijuana but said that the same rumour had circulated about himself and other police.

116 Constable Blayden said that he believed the Plaintiff for his own reasons had decided to pursue the matter between Constable Strong and Mrs Papoleuca even though it was against the wishes of Mr and Mrs Papoleuca and had occurred 6 months prior to the Plaintiff’s arrival in Menindee.

117 Other remarks included in that report were to the effect:-

That Constable Blayden had received numerous verbal complaints concerning the Plaintiff and what was believed to be an attempt by him to get rid of Constable Strong.

Constable Bennie needed counselling in relation to matters he had been told needed finalising but which he had not finalised prior to going on leave and he had failed to attend to certain filing which he had been specifically requested to attend to more than once.

Constable Blayden believed Constable Bennie was not an efficient and effective unit, for a constable with more than 9 years service his knowledge of general police practices and procedure was minimal and his entries in departmental records had numerous errors and omissions. Constable Bennie had his own ideas on how things should be done and some cases those ideas had merit. He was “extremely well presented and immaculate in dress” and it was a pity that those qualities did not carry over into his work.

Constable Bennie has managed to get a great deal of the community off side some sections having a distinct dislike for him. He has become known as a “dummy spitter” and had a bad reputation.

Constable Bennie has flaws in his personality. Under stressful situations he tends to become extremely upset and unable to think rationally. He prefers to remain isolated from others apart from his family and is not suited to duty at small country stations. In Constable Blayden’s view Constable Bennie suffered from some form of mental disorder and leaving him in a location like Menindee would result in further problems for himself and the community.

118 Constable Blayden recommended that both Constable Strong and the Plaintiff be assessed by the police psychology welfare branch and if the matter was not treated in a professional and humane way, either officer might suffer stress and never be able to perform duties effectively. Constable Blayden went on to refer to the hardship which might be occasioned to any one of them who was moved from Menindee.

119 In evidence Constable Blayden made other criticisms of the Plaintiff. He said that the latter could not take criticism and took it as a personal insult if Constable Blayden pointed out, for example, that the Plaintiff had not attended to remittances to the motor registry. Constable Blayden said that he was under an obligation to check that the Plaintff’s notebooks were in order but that the Plaintiff always had an excuse when asked to show one and that in the 4 months the plaintiff was in Menindee, Constable Blayden did not manage to check the Plaintiff’s notebooks once.

120 He said that on the occasion of an incident in the street towards the beginning of the Plaintiff’s time in Menindee, the Plaintiff became very, and inappropriately, agitated and Constable Blayden felt the best course was to take the Plaintiff away from the incident.

121 Both the Plaintiff and Constable Blayden gave evidence of an incident that occurred between them concerning the Plaintiff riding a bike while not wearing a helmet. According to the Plaintiff, he rode a motorbike he wanted to sell down the driveway and onto the footpath while not wearing a helmet, Constable Blayden called him into his office and in front of the Fisheries inspector threatened to issue him with a traffic infringement notice for the offence of not wearing a helmet. The Plaintiff responded by saying “Fine, we will talk about it with the magistrate”, Constable Blayden retorted that he would handle it by way of caution and when the Plaintiff refused to accept the caution, Constable Blayden told him to “go away”.

122 Constable Blayden said that his daughter, who had been subjected to many instructions from him about riding bikes without a helmet, had informed him that the Plaintiff had ridden his motorbike down the driveway of the police station, out onto the street and parked it up on the footpath. The Plaintiff then entered the police station, very irate, criticising Constable Blayden for sending his daughter out to do his work for him. Constable Blayden said that he told the Plaintiff that he should not be doing what he had done because it made it hard to book others for riding without a helmet and that the Plaintiff became hotter and hotter and very irrational.

123 It should be mentioned that the account put to the Plaintiff in cross-examination was a little different from this. It was put to the Plaintiff that he had taken the bike for a little bit of a ride down the street and back.

124 Another incident productive of friction involved some children left at the police station. According to the Plaintiff, on or about 13 December he was asleep and his wife woke him saying that she could hear children’s screams from the cells. The Plaintiff went there and found a child suspended in one cell with his head though a half moon opening in the top of a cell door which had been bolted but not padlocked shut. The Plaintiff gradually opened the door and lifted the child down after which the child curled up into a ball and scuttled off into a corner. He was the only child in that cell. A second child was in a second cell and a third in the exercise yard. All were aboriginal children aged about 9. The Plaintiff called Constable Blayden on the radio who returned soon after. Constable Blayden said that he had picked the children up carrying on in the Albermarle Hotel car park and locked them up to teach them a lesson. There followed some discussion about the need to contact their parents.

125 The children’s parents arrived and picked them up. There was some conversation between the Plaintiff and Constable Blayden, the latter’s response being, in the Plaintiff’s words, “mute insolence” and concern that the Plaintiff did not report the incident. The Plaintiff said that at that time he had not completely recovered from the Scott Yuill hanging. The Plaintiff agreed with a suggestion in cross-examination that he had told Constable Blayden that one of the children had nearly hung himself and acknowledged that he made no record of this incident even though he agreed it was gross neglect of duty by Constable Blayden and he was not friendly with Constable Blayden by that time.

126 Constable Blayden said that he had left three children at the station not locked in, asked the Plaintiff to keep and eye on them and when he returned the Plaintiff was very agitated, stomping and pacing around the driveway with the children smirking at his antics. The Plaintiff had reported that one of the children had tried to hang himself. Constable Blayden was cross-examined at some length on this topic. It is unnecessary that I attempt to summarise that cross-examination but it is appropriate to say that Constable Blayden’s evidence on the topic was singularly unimpressive.

127 The Plaintiff said that on the following day there was conversation between the Plaintiff and Constable Blayden about the tape recorder in the course of which Constable Blayden gave the Plaintiff an account similar to that which Constable Blayden has given here. The Plaintiff told Constable Blayden that he was a liar.

128 According to the Plaintiff and his wife, for some time their and Constable Blayden’s families were very friendly and the children of each household were in and out of both houses frequently. After the Plaintiff returned from holidays things deteriorated, his daughter was not allowed in the Blayden household and the Blayden children were not allowed in his. This isolation of his daughter upset the Plaintiff although by that time he himself was “quite happy not to breathe the same air that Senior Constable Blayden was breathing”.

129 Constable Blayden explained the ban on his daughter going into the Plaintiff’s house was due to her seeing the Plaintiff naked on one occasion she was there and his view that such an event was inappropriate. Mrs Bennie’s evidence tended to confirm the occurrence of such an event. I should perhaps add here, lest the matter be overlooked, that it was not suggested that this incident was inspired by any motive of impropriety on the part of the Plaintiff.

130 The Plaintiff said that by November or December, although he and Constable Strong still spoke, things became frosty between everyone. Constable Blayden gave similar evidence. Asked why in his report of 1 December he had suggested that both Constable Strong and the Plaintiff be psychologically examined, Constable Blayden said that the situation was getting very volatile, both constables were clearly upset about the situation and everyone was on edge, walking on glass around the station.

131 On 18 December the Plaintiff attended on the Police Psychology unit having been previously told by Sergeant Morley that both he and Constable Strong were to be assessed. The Plaintiff there saw a Kate Wikner, a police officer who, according to the Plaintiff commenced the interview with a remark to the effect that:-

“That she had spoken with Constable Strong and that she held enormous sympathy for such officers who were subject to such dreadful stress because of the false allegations of fellow officers.”

132 The Plaintiff reacted by walking out. He then saw Dr Westerlink, told her that he would have nothing to do with the Police Psychology section and she arranged for the Plaintiff to see an independent psychiatrist Dr Milton later in the day. This he did.

133 On the Plaintiff’s return to Menindee after seeing Dr Milton, he received a call from Sergeant Morley in Broken Hill requiring him and Constable Blayden to be in Sergeant Morley’s office on 30 December. They both drove there in the one vehicle on that day and saw Superintendent Allen. According to the Plaintiff and notes he made soon afterwards, Inspector Allen referred to the complaint the Plaintiff had made to Mr McGoldrick, to the Internal Affairs Investigation, and told him that it had been confirmed in the “Psych” report that the Plaintiff was unsuitable for a position at Menindee. Inspector Allen said that the Plaintiff was to be transferred back to the Liverpool in Sydney, saying things to the effect that the people in Menindee did not like him, that the Plaintiff did not fit in in the bush and that the career path of a country police officer was now closed. The Plaintiff said that Superintendent Allen told the Plaintiff that Dr Milton had recommended that the Plaintiff be transferred back to the city, that the Plaintiff should not take the transfer as a punishment for blowing the whistle of Constable Strong and that the Plaintiff should learn to be more flexible. The Plaintiff was given a required 21 days notice of the move.

134 Inspector Allen gave evidence as to why he had decided that the Plaintiff should be transferred. He said that to him the Plaintiff seemed deranged in some manner, he could not get on with Constables Blayden and Strong or with people in Menindee and that in Sydney the Plaintiff could receive proper assessment and/or treatment from psychiatrists. Inspector Allen went on to say that whereas a policeman in the city would do his 8 hour shift and go home, a policeman in the one to three-man stations have to sell themselves to, and be part of, the public and are expected to be a police officer 24 hours a day.

135 Constable Blayden also was told that the Plaintiff was to be moved. On the way back to Menindee, the Plaintiff and Constable Blayden did not speak.

136 The Plaintiff said that on his return to Menindee, he found that his roster for New Year’s Eve had been changed, effectively requiring him to work with Constable Strong on New Year’s Eve. This terrified the Plaintiff and he saw a Dr Sprod who gave him a certificate for work-related stress. The doctor told the Plaintiff that he was putting him off work for a month although the certificate mistakenly specified 12 months. Constable Blayden was questioned on this topic but essentially said that he did not remember.

137 On 2 January Constable Blayden called on the Plaintiff at the latter’s home and demanded the return of his police appointments, such as notebooks and weapons. The Plaintiff felt disgusted, did not hand over the items and told Constable Blayden to get a warrant or to put his demand on paper. Sometime later Constable Blayden returned with a written demand which referred, inter alia, to the mistake in the medical certificate and that the various items would be returned to the Plaintiff when he resumed full duties. Sergeant Blayden said that it was normal for appointments to be placed in the safe when an officer went on sick or other leave. He was not challenged on that evidence.

138 The Plaintiff then contacted the legal officer at the Police Association and while he was talking to her the phone, which apparently ran through the police station itself, went dead. The Plaintiff re-established contact with the Association using a public phone and was advised to speak to Assistant Commissioner Peate. The Plaintiff did so. Commissioner Peate invited the Plaintiff to ring back reversing the charges, offered the Plaintiff a position in his personal office which the Plaintiff declined, told the Plaintiff to stop rocking the boat and said he would arrange for the Plaintiff’s telephone to be re-connected but advised the Plaintiff to keep the use to a minimum or the phone would be cut off again.

139 Notes the Plaintiff seems to have made at the time record what I infer to be statements made by Inspector Peate, “No career damage. Possible return to country in due course.”

140 The Plaintiff asked why he had been required to surrender his firearms and told there were fears he was homicidal or suicidal.

141 After this conversation the Plaintiff told Constable Blayden that Assistant Commissioner Peate had given permission for the phone to be re-connected and asked Constable Blayden why he was doing these things. The Plaintiff said that Constable Blayden’s response was:-

“You dobbed on Kevin. What do you expect.”

142 It is not, I think, necessary that I detail all of the events that immediately followed though I should record that Assistant Commissioner Peate attended at Menindee station, the Plaintiff refused an opportunity to meet with him and that when on 3 February the Plaintiff attended the Menindee station pursuant to instructions to submit a report in respect of his transfer, Constable Strong told him he was not allowed the use of the police computer. Permission was subsequently obtained from elsewhere but the Plaintiff had to be supervised by Constable Strong while using it, a requirement the Plaintiff was disgusted by. On 5 February while the Plaintiff was waiting for a truck to move his furniture, Constable Strong appeared at his door with the Plaintiff’s appointments. The Plaintiff refused to open the door and refused to pick up the appointments which had been left on the doorstep. According to the Plaintiff, Constable Strong mocked him with words to the effect that he could not pick up a pistol anymore. In other evidence the Plaintiff said that he was given no farewell when he left Menindee, confirming that, so far as the other police there were concerned, he was in Coventry.

143 It should also be mentioned that Assistant Commissioner Peate gave evidence that he himself at some stage after his appointment to that position on 21 August 1991 visited Menindee and was informed by some in the aboriginal community that they were not very happy with the Plaintiff because he was being “overboard physical” with the aboriginal population. This evidence was not tendered as truth of the facts but just as Mr Peate’s perception. Mr Peate said that during his visit there were also positive reports from members of the public about Menindee policing in general. Mr Peate was probably in uniform at the time of receiving these reports.

144 On 2 January, Dr Sprod referred the Plaintiff to Dr Spragg, a psychiatrist. The Plaintiff saw Dr Spragg on 8 January 1992. I shall deal later more fully with De Spragg’s opinion but it included that the Plaintiff was then in a tense and emotional state, in a state of extreme anxiety, with periods of depression, with considerable underlying anger over his recent experiences with the Police Service.

145 For completeness I should mention that, according to Sergeant Morton, he had met the Plaintiff while the latter was stationed at Tallimba. The Plaintiff had attended a lecture. Sergeant Morton terminated the lecture, when he felt that the Plaintiff was prolonging it by asking pointless or unnecessary questions and the Plaintiff then stormed out. Later the Plaintiff confronted Sergent Morton with the words, “Get out of my fucking face, senior”. When cross-examined about this matter the Plaintiff said that he thought that they had got over the incident, Sergeant Morton was a “fair dinkum copper” and the only one at Broken Hill that the Plaintiff knew.

146 At some stage in January 1992, the Plaintiff was advised that his transfer was to be to Macquarie Fields Police Station, not Liverpool which had been the scene of the Scott Yuill hanging.

12 February 1992 - Plaintiff

147 Arising from times before he had moved to Menindee, it was contemplated that the Plaintiff would be a witness in proceedings against a man Boatswain on a charge of unlawful sexual intercourse. The Plaintiff had arrested this person, taken from him and secured an item of clothing, and stayed with him for some 7½ hours some of this time in handcuffs. While in Menindee the Plaintiff had received a number of reminders that he was required to attend court in that connection on 12 February 1992. On 10 or 11 February a Transit patrol officer Stephen Baldacchino with whom the Plaintiff had previously worked visited the Plaintiff’s home and impressed on the Plaintiff the need for him to be at court on 12 February.

148 On that day, the Plaintiff attended the Sydney Central Local Court. After he arrived there the clerk of court told the Plaintiff that the evidence wouldn’t be required. When the Plaintiff asked why the clerk said, according to the Plaintiff words to the effect “You’ve been written out” – This led the Plaintiff to the conclusion that his evidence was not necessary and for some reason the case was going ahead without him. Asked how that affected his feelings in relation to the Police Force, the Plaintiff said that he walked out of the court house and for the only time in his life scrumpled up his official police statement and threw it into a rubbish bin.”

149 The Plaintiff believed that the negative treatment he was suddenly experiencing, in contrast to that which he had received previously, was inextricably connected with his decision to make a report concerning Constable Strong and that it was obvious why he was suddenly unpopular.

150 The Plaintiff caught the train home. On arriving there he had an argument with his wife over something inconsequential and walked out of the house saying he was going to find a tree, hug a tree, and return. He took a Walkman with him. He walked to a railway station, probably Minto and walked off the end of the platform and, according to his evidence, sat under a tree on the edge of railway line ballast. He said he was sitting twirling a flower in his hand, his hand was ripped away from him, he saw a face, pulled his hand back, both of his hands were ripped out and he was thrown face down onto the ballast. He gave evidence that he said “stop, stop, I won’t do anything” to which a Constable Dimatteo replied “it’s too late, arsehole, you had your chance.”

151 The Plaintiff said his right arm was forced up his back so the wrist came up behind his ear and virtually dislocated his shoulder. His other arm was pulled into his side and he was handcuffed and while this was occurring repeated blows were reigned down on his lower back, buttocks and thighs. Then he was dragged to his feet by Constable Dimatteo grabbing his hair. At some time during the encounter, Constable Dimatteo then looked the Plaintiff squarely in the eye, dug his thumb into the Plaintiff’s shoulder, causing a great deal of pain, forcing the Plaintiff to his knees, and leaving a bruise on top of the Plaintiff’s right brachial plexus.

152 The Plaintiff then said he was dragged by the hair along and then down the side of the ballast and through a four strand barbed wire fence and thrown by Constable Dimatteo into the back of a police truck. Constable Fredricks who was with Constable Dimatteo held the strands of the fence apart while the Plaintiff was pulled through and also stopped Constable Dimatteo slamming the police truck door on the Plaintiff’s legs. Constable Fredricks also stopped the Plaintiff falling completely to the ground on occasions when Constable Dimatteo was dragging him.

153 The Plaintiff said the handcuffs were extraordinarily tight so much so that his right hand went completely numb and he lost most of the feeling in his left hand before the cuffs were removed at the station, that Constable Dimatteo had ripped the Plaintiff’s Walkman off his belt and thrown it into the grass and that, except in extraordinary circumstances, a police officer is not entitled to lodge an offender in a caged truck with their hands cuffed behind them.

154 According to the Plaintiff his being thrown face down onto the ballast caused pain. More was suffered when his arm was ripped up behind his ear and when later that night he was at the hospital, and even though part of the area was numb, his shoulder was the main source of pain.

155 The Plaintiff was driven to Campbelltown Police Station. There he refused to get out of the truck until a supervising sergeant came. The sergeant who arrived was someone known to the Plaintiff, a Sergeant Hillier. On alighting from the truck the Plaintiff demanded of Sergeant Hillier to know why he had been arrested. Sergeant Hillier responded by grabbing a handful of the Plaintiff’s hair and dragging him up the corridor towards the rear of the charge room and when they arrived at the door, Sergeant Hillier simply threw the Plaintiff into the charge room by his hair.

156 The Plaintiff said he had had a previous experience with Sergeant Hillier when a Prisoner named Shaw had attacked the Plaintiff. Sergeant Hiller went to the Plaintiff’s defence and in the course of doing so grabbed the prisoner and smashed his head into the corner of a door frame that “opened him up like a split watermelon. The Plaintiff said the Prisoner was then taken to hospital and treated for tripping over in the police station. The Plaintiff told Sergeant Hillier that if he ever did anything like that again the Plaintiff would go to straight to Internal Affairs.

157 In the charge room the Plaintiff sat and then laid down in the dock. Constable Dimatteo asked his name to which the Plaintiff responded “my name is Adam Omega. You know who I am.” The Plaintiff said he asked for water, a doctor and a telephone and received nothing. He was gawked at by a number of junior police. He felt humiliated.

158 An Inspector Casey spoke to the Plaintiff. The Plaintiff asked to have his handcuffs removed. Inspector Casey said that the handcuffs would be removed if the Plaintiff undertook to cause no more trouble. The Plaintiff would not give that undertaking because of the inclusion of the word “more” although he said that he undertook to give no trouble. The handcuffs were not at that time removed. The Plaintiff also asked for a telephone and a doctor but was fobbed off. Later Chief Inspector Barrett said he would get the handcuffs removed and then Constable Fredricks removed them although to do so he had to jam them on more tightly first. The Plaintiff was then taken to an interview room. The Plaintiff asked to use the phone to speak to his wife, to be charged and released and that he had been assaulted. Chief Inspector Barrett responded by saying “Mistakes happen” and “You can’t put wise heads on young shoulders”.

159 After Sergeant Hillier had searched the Plaintiff in an office that the Plaintiff said was an area of the Police Station to which the public had access, Inspector Casey and Inspector Baillie then drove the Plaintiff to the Campbelltown Hospital.

160 At the hospital the Plaintiff had bruises and markings on his body, parts of which were X-rayed. The Plaintiff also spoke briefly with Dr Visvalingam about some psychiatric aspects. The Plaintiff was then returned to the police station, and left in the sergeants’ office during which time a parade of sergeants came in and out.

161 After the Plaintiff was charged and bail granted – the Plaintiff signing the bail form with an “x” using his left hand - Inspector Casey physically blocked the door, refusing to let the Plaintiff out on the basis that he wanted to take the Plaintiff to the admissions Centre at Waratah House, the psychiatric ward at Campbelltown Hospital. There was some argument about that and the Plaintiff then walked out, wanting to sign himself into Waratah House. His wife found him in the street and drove him to the hospital where he saw Dr Scott Jenkins. The Plaintiff was released from the hospital about 5pm the next day.

162 It is convenient to defer further reference to the hospital records until the evidence of 4 witnesses, Mr Aliende, Constables Dimatteo and Fredericks and Sergeant Hillier is referred to. The evidence of, particularly the 2 constables, was appreciably different from that of the Plaintiff.

12 February 1992 – Mr Aliende

163 Mr Aliende was a network operations supervisor with Railcorp. His responsibilities included attending on and investigating incidents that occurred in the rail corridor that included Ingleburn and Minto Stations. The results of his investigations were recorded.

164 Mr Aliende’s report of an incident on 12 February included the following:-

“Driver of run No 126 was M Dalton who reported that a male person had walked out on to the track in front of his train as he was approaching Ingleburn accepting signal which is approximately 2 kilometres from the station.

165 Included in the report was a letter from Mr Dalton who said that after seeing a male person acting suspiciously he reduced the speed of his train. When it became obvious that the person was moving towards the train, Mr Dalton applied the emergency brakes, causing the train to stop only a few metres from the person who was walking on the train track. When the train stopped the person walked off into nearby bushes.

166 In cross-examination Mr Aliende agreed that the location of the incident was about 1.5 kilometres from Ingleburn station and that the distance between Ingleburn and Minto stations was about 4, 5, or 6 kilometres.

12 February 1992 – Constable Dimatteo

167 Constable Dimatteo was a Transit Police officer. According to Constable Dimatteo, following a report that someone was on the railway lines or damaging signals, he with Constable Fredericks as a passenger commenced to patrol the roads and area adjacent to the railway line between Minto and Ingleburn stations. Some 500 metres north of Minto Railway Station he heard a train apply its brakes and saw a male crouched down under a bush near the tracks. He stopped the vehicle he was driving some 10 to 20 metres from the male person, alighted, negotiated the fence which contained 4 loose wire strands, not barbed, went up a track on an embankment towards the railway tracks and then walked towards where he had seen the male. As Mr Dimatteo approached he saw that the male was still crouched down under the bush, with his back towards the tracks and facing the outside of the fence. Constable Dimatteo was closer to the tracks than the male and approached him from his right rear. He asked the man if he was okay to which the male responded, “Fuck off. Leave me alone. I’ve done nothing wrong.”

168 Constable Dimatteo, who was in uniform, announced that he was a Transit Police Officer, that the male was trespassing and must leave. The male said that he was not going anywhere and Constable Dimatteo took hold of the male’s right arm between shoulder and elbow and tried to assist him up. At the time Constable Dimatteo told the male he was under arrest for trespassing and would have to leave the area. The male pulled his arm away, stood up and began swinging punches. Constable Dimatteo told the male to calm down.

169 By this time the male was facing Constable Dimatteo. Although shorter and lighter, Constable Dimatteo was trying to hold the male by grabbing his chest and right arm. None of the male’s punches connected with Constable Dimatteo. The ground was very wet and slippery and both fell, the male on his left side with his right arm in front at something under 90 degrees to his body and elbow at or below jaw height and the top half of Constable Dimatteo landed on top of the male.

170 At this time Constable Fredericks was still outside the fence, Constable Dimatteo having left him there to keep an eye on the male when, because of the topography, Constable Dimatteo lost sight of him. Constable Dimatteo called to Constable Fredericks who arrived and helped Constable Diamtteo bring the male’s right arm behind his back, put a handcuff on it and then do the same with the left arm. At the time the Plaintiff’s right arm was being put behind his back the Plaintiff was face down and Constable Dimatteo face down on top of the Plaintiff. Constable Dimatteo said that the struggle was quite violent and Constable Dimatteo used no more force than he regarded as necessary to place the male under arrest.

171 The male was handcuffed to the back, this being the safest place and “the circumstances were that he was facing the ground”. Constable Dimatteo denied punching or kicking or applying pressure to the back of the neck or front upper part of the male and of intentionally pushing the male’s face into the ground.

172 The officers then lifted the male up, and over resistance helped him to the fence. During this activity, the male slipped to his knees a couple of times on the slippery ground. The male refused to go through the fence and Constable Dimattteo “helped” him through, though not by grabbing his hair. The officers then placed the male in the rear of the vehicle. Initially the male’s legs were outside but Constable Dimatteo picked them up and pushed the male further in. He did not attempt to close the door on the male’s legs.

173 On the way to the police station the male indicated that he wanted the handcuff’s off but said nothing about the tightness of them. Constable Dimatteo did not see Sergeant Hillier apply any force to the Plaintiff when the latter was walking from the vehicle to the dock.

174 Later Constable Dimatteo was directed to return to the area of the arrest and find the Plaintiff’s Walkman. He did so and found the item. He denied having removed it from the Plaintiff’s belt.

175 Constable Dimatteo denied intentionally knocking the Plaintiff to the ground, calling him an arsehole, grabbing his hair or searching him. He said that the Plaintiff had no injuries when he arrived at the Police Station. Constable Dimatteo denied that at the time he approached the Plaintiff, the latter had headphones in his ears and appeared to be listening to a Walkman, was clicking his fingers and humming and singing to himself. Constable Dimatteo could see no reason why the Plaintiff was crouching down.

176 In cross-examination Constable Dimatteo agreed that the Plaintiff was face downwards on the ground. He denied that he had no recollection of where his hands and arms were in trying to restrain the Plaintiff and denied bending the Plaintiff’s right arm and forcing it up behind his back. Handcuffs were put on both arms while the Plaintiff was on the ground. The Plaintiff stopped struggling by or at the time he was at the fence.

177 Constable Dimatteo agreed that at the scene he had taken no steps to identify the Plaintiff and did not warn the Plaintiff that if he did not leave he would or might be issued with a summons. He said he was aware of the Commissioner’s instructions to the effect that police should not arrest a person for a minor offence when it is clear that a Summons will ensure that an offender will be dealt with by a court and he had considered such an option. However, he also said that he had in mind that the Plaintiff might seek to commit suicide.

178 Constable Dimatteo acknowledged that a number of matters about which he gave evidence were not referred to in a report he had made on the evening of the incident, or in his notebook where there was an account of the incident or in his statement about the matter. He said that he felt no anger towards the Plaintiff during the incident and that he had never heard of the Plaintiff before that day. He said that at the time of the incident he had thought that there was a possibility that the Plaintiff might commit suicide.

12 February 1992 – Constable Fredericks

179 Constable Fredericks said that after receiving messages that there was a person tampering with signals Constable Fredericks, with Constable Dimatteo as a passenger, drove to an area about 500 metres north of Minto Railway station. He saw a male a few metres from the railway track and about 8 –10 metres away. The male ran down an embankment out of sight. Constable Frederick stopped the vehicle near to where he saw the person. Both officers got out of the vehicle and approached. When Constable Dimatteo was approaching the man the man was facing at an angle to the tracks, sitting down with earphones on. When Constable Fredericks was about 2 to 3 metres away from both the male and Constable Dimatteo, the latter asked “Are you okay” and “What are you doing here?” to which the male replied “Fuck off, leave me alone”. Constable Fredericks denied hearing the Plaintiff say: “Stop. Stop. I won’t do anything”. He agreed he did hear the words, “I’ve done nothing wrong staying here”.

180 When he was a trainee Constable Fredericks had met the Plaintiff and shared duties with him once, but on 12 February and until they were at the Police Station, he did not recognise the Plaintiff who had a hat and sunglasses on and earphones in his ears. Constable Dimatteo took hold of the Plaintiff’s right arm and tried to lift him up. The male lashed out. Constable Frederick took hold of the left arm of the Plaintiff who then struggled violently. Constable Fredericks put the Plaintiff’s left arm behind his back, a handcuff on it and then Constable Dimatteo put the Plaintiff’s right arm behind the male’s back and it was cuffed. The Plaintiff was lying on his right side while being handcuffed and had not got to his feet at any stage before this occurred. The Plaintiff was never lying face down or partially face down, his head was never forced down and his right arm was never forced up behind his back.

181 The Plaintiff was then lifted up by the arms. He was never grabbed by his hair. There was much struggling between where the man was handcuffed and the fence. Constable Fredericks lost his footing at times and the Plaintiff did also, probably twice. There was more struggling at the time the Plaintiff was put into the police vehicle.

182 Near the Police Station the Plaintiff complained about the handcuffs being tight. Constable Fredericks walked in front of the Plaintiff from the vehicle into the station. He did not see anybody lay hands on the Plaintiff during this time.

183 Before giving evidence Constable Fredericks had refreshed his recollection from a statement he had made on 13 February. For some time he had stayed at the wire fence and went over the fence at the time when Constable Dimatteo was approaching the Plaintiff. Constable Fredericks was not approaching the Plaintiff at the same time as Constable Dimatteo was. As Constable Fredericks was approached the other 2 he could hear what was said. He heard the Plaintiff say, “I’ve done nothing wrong staying here” but not, “Stop. Stop. I won’t do anything.

184 Constable Fredericks did not see Constable Dimatteo applying pressure to the Plaintiff’s front collar bone. After the Plaintiff lashed out, which was with his right arm, and waved his arms around, Constable Dimatteo was never on top of the Plaintiff. Constable Fredericks did not see the man’s right arm forced up behind his back and the tenor of his evidence was that it did not happen.

185 Constable Frederick thought that the Plaintiff was lifted over the fence. He was not pulled by the hair and Constable Dimatteo did not try to slam the door of the vehicle on the Plaintiff’s legs. The Plaintiff stumbled a couple of times but Constable Fredericks could not recall him going down on his knees.

186 Constable Frederick said he gave no consideration as to whether the Plaintiff should be asked to identify himself and issued with a Summons. He said that Constable Dimatteo was the more senior and handling the matter.

12 February 1992 – Sergeant Hillier

187 Sergeant Hillier agreed that he had asked the Plaintiff to get out of the police vehicle but said that the Plaintiff had insisted on walking on his own from the vehicle to the dock and that no officer forced or helped him apart from Sergeant Hillier, for a brief time, placing his arm on the Plaintiff’s shoulder at some time when the Plaintiff stopped. Sergeant Hillier noticed that the handcuffs on the Plaintiff were, in his words, “a bit tight”, took a little time to find a key that fitted them and removed them or had them removed. He confirmed that the Plaintiff was searched in the supervising sergeant’s office. Sergeant Hiller said that he cancelled one or some charges that had been documented and substituted others. Bail was granted. Inspector Casey sought to induce the Plaintiff to return to the Hospital with him. The Plaintiff asked if that was a condition of his bail and when told it was not, said “I’ll leave” and did so. Sergeant Hillier said that the Plaintiff made no complaint of injury.

188 Sergeant Hiller said that on a later occasion he saw the Plaintiff at a shopping mall. The Plaintiff approached, made remarks, some about an inquiry and some offensive including “I’ll have you anytime” and then Sergeant Hillier turned his back. Sergeant Hillier said that the inquiry was an Internal Affairs one inspired by complaints the Plaintiff had made to John Hatton MP to the effect that Sergeant Hillier had grabbed the Plaintiff by the hair prior to dragging him into the charge room and had not taken the handcuffs off soon enough. The inquiry had also included the allegation concerning the prisoner Shaw about which the Plaintiff had given evidence before me.

189 In cross-examination Sergeant agreed that at the police station Constable Fredericks had said that when he first saw the Plaintiff he was running from the railway tracks and then they found him in bushes with his headphone on, listening to his Walkman, clicking his fingers and humming and singing to himself in the bush. He agreed also that the Ombudsman had upheld a complaint that he had inappropriately searched the Plaintiff at the police station and that the Plaintiff had remained handcuffed without reasonable cause.

190 Both while walking from the vehicle to the charge room and in the charge room, the Plaintiff told Sergeant Hillier that he intended to make a complaint of assault. In the charge room he said also that he would complain about the improper use of handcuffs.

191 Sergeant Hiller said that he did not like the Plaintiff and prior to February 1992 had formed the view that the Plaintiff had a “devious, perverse and criminal mind”. He said that the reason for his dislike of the Plaintiff was that the latter had told lies in his complaints.

192 Sergeant Hiller said that he saw no signs of violence exhibited by the Plaintiff on 12 February. He conceded that handcuffing a person’s hands behind his back rendered them liable to be thrown around in a police vehicle and, after some prodding, that it was at least undesirable in some circumstances. Sergeant Hillier denied the assault on a prisoner about which the Plaintiff had given evidence.

193 Sergeant Hillier also gave evidence that at the station Constable Fredericks had informed him that when the police found the Plaintiff in the bushes, he was sitting down, with his Walkman headphones on, clicking his fingers and singing to himself.

194 Sergeant Hillier also gave evidence that during the time the Plaintiff was at the Police Station he, i.e. Sergeant Hillier, had conversation with the Patrol Commander Superintendent Graham. At the time Superintendent Graham had a file on his desk relating to the Plaintiff and which Sergeant Hillier read. The only description of the file was that by Sergeant Hiller as “a report from a policeman of the New South Wales Police Service and it identified Bennie in it.”

Inspector Baillie

195 Inspector Baillie gave evidence that what inspired him to have the Plaintiff removed from the dock was that he was a serving police officer and the Plaintiff was displaying serious emotional problems. Discussion with the Plaintiff in the interview room led Inspector Baillie to the view that the Plaintiff needed assistance. The Plaintiff was complaining of physical injury sustained earlier.

Campbelltown Hospital

196 The Campbelltown Hospital notes of 12 and 13 February 1992 obviously made by a number of persons at a variety of times record, inter alia:-

Multiple bruises on the anterior aspect of both shoulders 2cm square

Circumferential bruises around both wrists

Very slight bruising along right lower ribs

Injured right arm, left chest

He also had a right anterior ribs, right shoulder, knees, and cervical spine“ (sic) – (but see similar references below)

Radiological examination of his right lower ribs revealed no evidence of any underlying pleural or pulmonary lesions and of his right shoulder revealed no bony injury or joint abnormality.

Unable to sleep by 0200 due to pain in shoulders.

Perplexed and troubled man disturbed by work related problems. Calls himself a “whistle blower’. Feels he is being persecuted and harassed by police ...

A “psych assessment” that the Plaintiff was trying to work up courage to jump in front of the train. He was then sitting by the side of the track listening to music on his Walkman when he was allegedly set upon ... .States he really meant to take his own life as he thinks his family and the police force would be better off ...”

The following is his version of events

1. ...

4. ...Angry that he has been written out of rape case. ...

6. Yesterday had argument with wife. Walked to train line

... considered jumping in front of train...

changed mind ...

7. Police commenced unprovoked attack

bruising to shoulders

painful R ribs, shoulders

R wrist

knees

cervical spine

(The Plaintiff) was extremely controlled ...There was not evidence of formal thought disorder, delusions, or hallucinations. He had extremely high levels of anger and suspiciousness, but his persecutory frame of view appears to have an understandable context. His mood was depressed with some psychomotor retardation. ... He was admitted with a provisional diagnosis of depressed mood.

Yesterday had argument with wife ... considered jumping in front of train. Changed mind & was listening to Walkman. Firmly stated he no longer wishes to die.

That on 13 February the Plaintiff sought admission to Waratah House for treatment as an informal patient.

Suicidal ideation following work related stress.

Extremely angry about the “humiliation” of his treatment by Campbelltown Police.

197 A report from Waratah House on the letterhead of the South Western Sydney Area Health Service dated 21 February 1992 included a diagnosis of “Adjustment Disorder with depressed mood” and recorded that on examination the Plaintiff was extremely controlled, there was no evidence of formal thought disorder, delusions or hallucinations, he had extremely high levels of anger and suspiciousness although his persecutory frame of mind appeared to have an understandable context, and his mood was depressed with some psychomotor retardation.

198 In a letter of 1 October 1992 on the letterhead of the Campbelltown Health Service, Dr Jenkins said that he had seen the Plaintiff again on 13 March when the latter was seeking a referral to a psychologist for counselling in the Campbelltown area. Dr Jenkins reported that at that time the Plaintiff revealed no significant psychiatric abnormality other than anxiety symptoms consistent with his reported stressors. Referred to in the report and falling within this category were events at Broken Hill and giving evidence against another police officer, harassment since that time, transfer to Sydney against his will and the incident on 12 February 1992.

199 At the time of referring to these notes and remarks from Campbelltown Hospital, it might be mentioned that other notes of 2 June 1992 from the same Health Service record, “RO Staples M/O Brachial plexis surgery”. (sic)

Medical and similar Reports

200 In evidence were a large number of medical and other expert reports concerning the Plaintiff’s condition. On the Plaintiff’s behalf there were reports from some thirty doctors or other health professionals and the Defendant tendered reports from eight such persons, two of whom were the authors of reports in the Plaintiff’s group.

201 Dr Sprod gave the Plaintiff a medical certificate on 31 December 1991. He saw the Plaintiff again on 2 and 21 January 1992. His report of 3 March 1998 recorded that the Plaintiff had told him his main problem arose from his report to Internal Affairs, that he had requested his name be kept confidential but was dismayed when other officers were aware of his complaint. The Plaintiff thought his transfer back to Liverpool was possibly a punishment. The Plaintiff was upset and angry but there was no evidence of thought disorder, delusions or hallucinations. The Plaintiff was assessed as unfit for any form of work at that time. On the occasion of the second visit the Plaintiff was agitated and depressed and was prescribed medication for short-term relief.

202 As I have said, the Plaintiff saw Dr Spragg on 8 January 1992. Dr Spragg wrote a report on 13 January 1992 in which he referred to the Dookie Hillier incident and consequences as being the beginning of the Plaintiff’s “feelings of insecurity about the politico-legal system, feelings which have since extended to the Police Service”

203 Dr Spragg recorded that when the Plaintiff went to Menindee he became aware of the “aberrant” behaviour of his fellow officers, and one in particular. They were given to drink driving, assault of citizens and one complaint of sexual harassment ... “The complainant (in the sexual harassment matter) was interviewed for 2½ hours by a police woman who, she alleges, informed her that unless she was actually raped there was no chance that a charge would be substantiated. The woman withdrew her complaint.”

204 Dr Spragg said that there was nothing in the Plaintiff’s developmental history to suggest any psychopathology and that the indications were that the Plaintiff was a “well integrated personality of high integrity and a compelling desire to be of service to the community. It would appear from the Plaintiff’s account that he had suffered from at best lack of support, and at worst, persecution from the police department. The Plaintiff was currently unfit for duty and would not be fit “until the unsavoury occurrences of which he complained had been appropriately dealt with”.

205 In his report Dr Spragg makes clear that, from prior experience, he had a very poor opinion of the Police Service to an extent that one should recognise that he might well not be objective in his remarks.

206 In a report of 18 February Dr Spragg recorded that on 11 February the Plaintiff had attended and his appearance was strange. He admitted he was afraid and depressed and began crying and the doctor considered scheduling the Plaintiff.

207 When the Plaintiff presented on 18 February he said he had been told he was not wanted as a witness, thought that was a deliberate attempt to belittle him. The Plaintiff gave an account of events on 12 February. Dr Spragg’s conclusions included:-

“(The Plaintiff) impresses me as a very honest and conscientious policeman. He is also very obsessional and this trait... also makes his quite intolerant of inaccuracy, inconsistency and dishonesty... What has gone wrong recently is that those who have committed misdemeanours, far from being brought to account, are being supported while he feels not only unsupported, but attacked from behind. This constitutes a gross loss of control such as will inevitably lead to a catastrophic reaction in an obsessional personality. Bennie feels he has been destroyed and can no resolution to his dilemma.

I shall continue to support him in the hope that there may eventually be a resolution to the situation, but in the current Police Service ethos I do not consider this likely. Therefore I can see little option for him other than to leave the Service.”

208 In a report of 25 August, Dr Spragg observed that over the period he had treated the Plaintiff, the latter’s condition had deteriorated to the extent he had been exhibiting irrational behaviour and had been totally unfit for policing. The doctor referred to the Plaintiff’s “immense anger”.

209 In a report of 14 December 1992, Dr Spragg diagnosed the Plaintiff as suffering from an “adjustment disorder with anxiety and depression” including suicidal ruminations. He said the condition would not resolve so long as the Plaintiff remained a policeman although on retirement from the force, the Plaintiff should soon be able to undertake stress-free work. In later reports Dr Spragg adhered to this diagnosis, disagreed with a suggestion that the Plaintiff suffered from a severe “personality disorder” or “chronic schizophrenia” and said that the bizarre behaviour he exhibited when arrested beside the railway line was an hysterical defence. He said that the condition suffered by the Plaintiff had arisen entirely out of the experiences encountered at Menindee but that the Plaintiff had adjusted well to earlier traumatic experiences.

210 In a report of 30 May 1995 Dr Spragg disagreed with a diagnosis of post-traumatic stress disorder and said he had no doubt the Plaintiff’s continuing symptoms were a consequence of having reported inappropriate behaviour and corruption and the hopelessness the Plaintiff felt of having the situation rectified.

211 In a report of 16 February 1998, Dr Spragg referred to a report of Dr Canaris and said that at that time he favoured a diagnosis of post- traumatic stress disorder over adjustment disorder although in a report of 4 November 2000 he returned to his diagnosis of “adjustment disorder with depressed and anxious mood”. Referring to matters of history and causation, Dr Spragg said:-

“... His problem began in 1991 in Menindee with the criminal behaviour of Strong, the treachery of Blayden and the domineering behaviour of Alf Peate, and was intensified by recall of the cell 1989 hanging in Liverpool when he learned he was to be posted there, the physical and emotional trauma inflicted on the railway line in February 1992 and by his continuing harassment, rejection and subjection to flagrantly destructive behaviour from the time he left Menindee.”

212 Dr Canaris’ opinion expressed in reports from October 1997 to July 2006 was that the Plaintiff suffered from post-traumatic stress disorder occasioned by his service with the Police. He recorded the agreement of virtually every other psychiatrist and psychologist that the Plaintiff was obsessional, adding that such individual tend to be “orderly, perfectionistic, determined, and tenacious with strongly developed notions of right and wrong”. In his report of 8 October 1997 he recorded a lengthy history including that the Plaintiff vehemently denied any suggestion he had been suicidal on 12 February 1992, Dr Canaris remarked that the Plaintiff’s life was dominated with his anger with the police. He said the alternative diagnosis of “adjustment disorder with depressed and anxious mood” fits reasonably well so long as it was recognised that the Plaintiff’s illness was severe, chronic and disabling. He said it was difficult to escape the conclusion that the Plaintiff’s illness was directly related to his police service and there was no evidence he was psychologically unwell or vulnerable previously. Dr Canaris opined that the Plaintiff could never work again as a policeman and saw no prospect of things improving sufficiently in the foreseeable future to render the Plaintiff employable on the open market.

213 In a report of February 2001, he observed that the Plaintiff’s demeanour was pervaded by bitterness and his distress palpable. The Plaintiff was still unemployable. Dr Canaris thought that the Plaintiff might need to see a psychologist, or preferably a psychiatrist, every month or so for at least 5 years.

214 In a report of 9 April 2006, Dr Canaris opined that the Plaintiff’s prospects of recovery to the point that he could lead a semblance of a normal existence in the foreseeable future were virtually zero. In a report of 20 July having seen some neurological reports on the Plaintiff by a Dr Pascoe, Dr Canaris said that the EEG investigation ruled out any likelihood of epilepsy.

215 Dr Canaris was called. He conceded that the EEG result was not as definitive as his report suggested but the totality of his evidence is to the effect that it provides strong evidence against the possibility of epilepsy. Otherwise Dr Canaris adhered to the views expressed in his reports, subject of course to the accuracy of the history on which those views were based. However, taken to the statement in his report of 8 October 1997 to the effect that there was no evidence that the Plaintiff was psychologically unwell or in any way vulnerable prior to his police service, and asked to assume that the Plaintiff’s history included a number of the matters referred to in other reports and the Plaintiff’s medical history during his army service, Dr Canaris said that his statement would not be correct and one would have to assume some greater degree of vulnerability.

216 Dr Barclay saw the Plaintiff in September 1993. The doctor had available to him many of the reports concerning the Plaintiff that had been prepared to that time and took a very lengthy history. That history seems to have included serious criticism of both Constable Strong and Constable Blayden. Dr Barclay recorded that there were times during the interview when the Plaintiff was somewhat emotional but there was no disorder of thinking and nothing to suggest that the Plaintiff was suffering from delusions. While the Plaintiff was angry about the Police Force, there was nothing to suggest the Plaintiff was suffering from any paranoid ideation or schizophrenia. The doctor said that there were a number of events that psychologically stressed the Plaintiff leading up to the 12 February events.

217 Dr Barclay went on to say that the Plaintiff’s mental state made him unfit for police service but disagreed that the Plaintiff had a severe personality disorder or schizophrenia. He thought that the plaintiff was suffering from a reactive anxiety depression, complicated by dissociative states and that the Plaintiff’s mental state flowed from the conflict he found himself in with the Police Department, the accumulation of events at Tallimba, Menindee and Liverpool and in particular the assault on 12 February.

218 A review of largely medical documentation in April 1995 led Dr Barclay to say (and I summarise):-

There were no psycho social stressors demonstrated that could have caused the Plaintiff’s psychiatric state other than matters which were (police) duty related and those which flowed from his arrest.

There is ample medical documentation to show the Plaintiff suffered a brachial plexus injury at the time of his arrest. That occasion and the injury aggravated his pre-existing adjustment disorder with anxiety and depression to the point where he suffers post-traumatic stress disorder.

The Plaintiff gave a history that he first developed psychological symptoms after the hanging incident in 1989 in Campbelltown and it is reasonable to assume the Plaintiff’s illness has been a continuous process since the end of 1991 with its origins possibly going back to 1989.

219 Dr Cole in reports of February and April 1995 expressed the opinion that the Plaintiff suffered from post-traumatic stress disorder, the cause of which was the assault and the series of events since the Plaintiff first reported “police corruption in October 1991”.

220 Dr Cole said he did not agree with Dr Spragg’s diagnosis though, as the Plaintiff had an infirmity of mind which made him unfit to be police officer and this was caused by his employment as such, Dr Cole perceived little difference except perhaps in semantics.

221 Dr Milton in a report of 18 December 1991 recorded there were no indications of serious emotional problems by way of odd behaviour, delusions, hallucinations or thought disorder and his affect was appropriate. He remarked:-

“PRESENTATION: ... There were no indications of serious emotional problems by way of odd behaviour, delusions, hallucinations, or thought disorder. ...

Constable Bennie impressed as a conscientious person with very firm views about his role as a police officer and about how others should behave. By nature he is rather inflexible, nor does he have much tolerance for imperfection in others, particularly in those of positions of responsibility...

Nonetheless his police service appears to have been uneventful until the Hillier incident...

The incident at Menindee was unfortunate in that it is likely to alienate him from fellow officers for some considerable time. He has requested that consideration be given to transferring him to a one man station in another region...

On the information currently available to me, this would probably be a practical course. The alternatives are (not desirable) ... I think he has the capacity to learn from his mistakes, and he realises that he needs to be more flexible and tolerant.

I found no evidence of paranoid traits.

222 However in a report of November 1997, tendered by the Defendant, Dr Milton retreated from his earlier view. He said that that earlier opinion was based only on the history given by the Plaintiff but in light of a large file of documents that the Defendant had provided, he no longer believed that the Plaintiff suffered any emotional disorder as a result of his police service. Dr Milton said that the Plaintiff had told him he had not suffered any serious health problems previously but the material indicated this was not so. In summarising the further material, Dr Milton:-

Referred to the Plaintiff’s father’s drink problem and death from pancreatitis.

Referred to a report that the Plaintiff’s half brother appeared to be a psychopath, an alcoholic and with a criminal record.

Referred to the fact the Plaintiff appeared to have significant health problems during his time in the army and that the Plaintiff had made no mention of these problems although he had been asked specifically about his past history.

Referred to army medical records indicating, inter alia:-

In April 1977 a normal skull x-ray because of “mild concussion symptoms for 5 days”

In March 1978 a psychological evaluation with a result “well below indicated level”.

In March 1978 a medical board assessment noting “no problems with previous left brachial plexus injury... and scars (from)... protrusion of right clavicle.”

In March 1979 a loss of consciousness and a hit by a squash ball and a notation “says he is easily KO’d (11x). Thinks he may be suffering as a result.”

Other hits by balls on the head and a fall from a motor bike.

August 1979 presentation at the Gosford Hospital “drowsy and disorientated after a game of hockey (apparently no head injury during match)”. Dr Milton referred to symptoms which he said were consistent with disassociation, as found in temporal lobe epilepsy hysteria and some personality disorders.

In September 1979, 3 EEGs, on of which was abnormal and 2 normal, and a history of fitting.

Notes from a military hospital and a medical History Questionnaire, both of March 1982, that indicated an abnormality and gross muscle wasting in the right shoulder.

Other medical records of 1976 and 1978 referring to a fracture of the right clavicle.

223 In that November 1997 report, Dr Milton said that there had been no hint of the Plaintiff suffering any emotional disorder in December 1991 and indications by the Plaintiff then were inconsistent with the presence of any anxiety and depression. Dr Milton said that he believed there was substance in the opinion of a Dr Maguire that the Plaintiff suffered from temporal lobe epilepsy and that persons with that condition sometimes develop oddities of personality. Dr Milton said that the alternative to temporal lobe epilepsy was that the Plaintiff showed an unusual and rigid personality that caused problems in his relationship with others: Perhaps he suffered from this and temporal lobe epilepsy.

224 Specialists whose reports dealt with the Plaintiff’s physical ailments included Alison O’Neill, Dr Rail and Dr Blum.

225 Ms O’Neill is a chiropractor. She recorded that she had seen the Plaintiff on 15 February 1992 for treatment and evaluation. She said that the Plaintiff was complaining of pain in the neck and upper back. She noticed severe bruising in the right trapezius, left posterior scapula region, bilaterally in the antero-superior clavicular region and surrounding the left wrists and some atrophy of the right trapezius. There was marked spasm and tenderness of the paraspinal muscles in the cervical and thoracic regions and restrictions of movement. She recommended intermittent chiropractic treatment.

226 Dr Rail is a neurologist. He saw the Plaintiff in about March 1992. He recorded that on 12 February the Plaintiff had received bruising to his neck, shoulder stiffness, weakness and difficulty with lifting the right arm to parallel and that there was “no past history of injury”. Dr Rail recorded weakness and wasting of the right trapezius muscle and the deltoid.

227 Dr Rail’s last report tendered was of April 1993. In it he said the Plaintiff contained a very significant disability in the use of his right arm and was incapable of carrying out duties as a police officer.

228 Dr Blum, a neurosurgeon in May 1992 recorded in a letter to Dr Rail that the Plaintiff exhibited major wasting of C5.6 innervated muscles. On 4 June he recorded that he had recently explored the Plaintiff’s right brachial plexus and observed marked scarring of the right supra-scapular nerve which was decompressed. Later he said that the injuries could have resulted from haemorrhage in the area.

229 In the letter of May 1994 to the ombudsman, Dr Blum said that, of two scenarios as to the cause of the Plaintiff’s problems posed for his consideration, dislocation of the Plaintiff’s head from his shoulders with the arm being pulled in the opposite direction and the digging of a thumb into his brachial plexus was more likely than the handcuffing of the Plaintiff’s arm behind his back. The direct trauma to the brachial plexus by a thumb would account for some haemorrhage and subsequent scarring. In a report of February 1998 Dr Blum detailed deficiencies in the functioning of the Plaintiff’s right shoulder assessing the permanent percentage impairment of the right arm at the shoulder to be 50% and describing the Plaintiff’s neck as relatively fragile, the disability of which he assessed at about 15%. Dr Blum opined that the prognosis for the arm was a permanent disability and said that the injury to the brachial plexus was attributed to the direct digital pressure on it. In a report of October 2000 he reduced the permanent percentage impairment of the neck to 10%.

230 However in a report of November 2006, tendered by the Defendant, Dr Blum said that a review of his earlier reports indicated that the Plaintiff had not told him of any previous problems and that the Plaintiff had given him the impression that the severe wasting of the deltoid, supraspinatus and infraspinatus of the Plaintiff’s right shoulder were all the result of the incident of February 1992. The doctor then referred to information or evidence he had been given to the effect that in 1982 the Plaintiff had problems with the deltoid and rotator group of muscles of the right shoulder and with the supraspinatus muscle and the suprascapula nerve. He concluded that in consequence he needed to change his opinion and felt that the incident of February 1992 was not related to the problems that he found.

231 Dr Poulgrain, a neurological Surgeon saw the Plaintiff in or about February 1994. It would seem that the occasion of the visit were problems the Plaintiff had experienced after a vigorous workout with a chiropractor. Dr Poulgrain’s report records a normal range of neck movements and generally a good range of movement in the right shoulder joint though obvious wasting in the right pectoralis major muscle. He said the deltoid muscle did not appear to be wasted.

232 In a report of October 1992, Dr Harley another psychiatrist, but one who seems never to have seen the Plaintiff, recorded that he had reviewed the Plaintiff’s police, and at times confusing, file and a number of reports from Drs McGinty, Milton, Spragg, and Bell and was persuaded by Dr Bell. He opined:-

“Constable Bennie is incapable, from a specified infirmity of body or mind of discharging the duties of his office;

That the specified infirmity is severe personality disorder and latent, or chronic schizophrenia; that Constable Bennie would be capable of remunerative work outside the NSW Police Service and that he is not totally and permanently invalided.”

233 In a report of January 1993, Dr Harley recorded that he had read more of the Plaintiff’s, by now expanded, file and which contained a substantial number of documents from the Plaintiff including letters to Mr Hatton MP, and to a legal officer of the Police Association. Dr Harley said that he remained of the view that the Plaintiff’s infirmity was severe personality disorder and latent, or chronic, schizophrenia. Dr Harley adhered to this view in a later report of July 1994, though with somewhat less confidence, adding that he would not be averse to a more general diagnosis of “multiple psychiatric disorders”.

234 Dr Petroff is a consultant psychiatrist, also relied on by the Defendant. He saw the Plaintiff on 4 March 1999. His opinion included::-

The patient is suffering from a Chronic Adjustment Disorder with Depressed, anxious and Angry Moods with symptoms of maximum severity. His performance today was such that it is hard to believe that he hasn’t a long standing personality disorder with strong narcissistic traits.

The patient is so angry with the Police Department... that he is totally incapable of ever working for the Police department again. When I saw him again today his disability was so great some 7 years after he has last worked that it is hard to imagine him working in any capacity...

...

I doubt that he is capable of letting go and it is much more likely that he will hang in, maintain his battle and his rage and be totally and permanently unemployable.

235 Dr Roberts, a psychologist, in a 71 page report of 11 October tendered on behalf of the Defendant opined:-

“While Mr Bennie did provide information at interview, his behaviour was characterised by intense paranoia, anger, his menacing, threatening, bitter, sarcastic manner, verbal abuse of me, tendency to misinterpret events for which there was a simple explanation (in particular, the events relating to this appointment) and he seemed totally unable to accept that, nor was I able to establish any level of rapport, due to his conviction that I was there having been coerced by the Crown to write a report favourable to them. ... I terminated the appointment after an hour on the second day. I was unable to carry out the testing which I wanted to do, because of these problems and hence cannot offer a final opinion of some issues.

...

There seems little doubt that Mr Bennie has obsessional features to his personality but not sufficient in my opinion to have labelled him as having an obsessive compulsive personality disorder. ... I think it likely that he was rigid, inflexible and conscientious. ...

In conclusion, Mr Bennie is an extremely paranoid, suspicious, angry and distressed man. Based on the documents currently before me and his history, he does describe having developed emotional problems as a result of his work with the Police Force. He denied any other contributing factors. He described some pre-existing problems prior to 1989 but not of significant degree... It would seem that the majority of his problems started to develop in early 1992... and prior to the assault on 12.2.92... I note that Mr Bennie denied that 12.2.92 had been a suicide attempt but told the hospital otherwise... He has a tendency to misperceive events and to distort reality...

Mr Bennie is too emotionally disturbed to work.”

236 Dr Bell, whose reports were admitted subjected to an argument that they were inadmissible as contrary to an estoppel upon which the Plaintiff relied, in a report of May 1992 opined that the Plaintiff had a severe personality disorder and possibly chronic schizophrenia in consequence of genetic and early environmental factors and having no causal connection with his employment as a police officer.

237 When informed in 2006 that the Plaintiff had not to that time been admitted to hospital for treatment of schizophrenia, Dr Bell said that that diagnosis must have been in error on the ground that, if what he and others had earlier observed had been due to an incipient psychosis, it would have declared itself well before 2006. His conclusion in his 2006 report – a report that is extraordinarily detailed in his reference to the Plaintiff’s army records and other reports - was that if “an adjustment disorder with depressed and anxious mood” be the agreed label for the Plaintiff, he still suffers from it. Dr Bell said that the cause of the Plaintiff’s behaviour was constitutional, he having behaved that way since his school years. In the doctor’s view, the Plaintiff has a “narcissistic personality disorder together with elements of the antisocial personality disorder or an hysterical personality disorder, being disturbed to an extraordinary degree for a person with just a personality disorder.

238 Dr Bell concluded by saying that the Plaintiff behaves in the way he does to manipulate others rather than because he is psychotic. In opining that the Plaintiff was manipulative, Dr Bell recorded that Dr Gubbay had also so concluded.

239 In a 36 page closely typed report which I will not attempt to summarise, Mr Gubbay, a psychologist, sets out his assessment of the Plaintiff, made in January 2003. In the report Mr Gubbay says that he saw the Plaintiff on 2 occasions, alleging that the Plaintiff was unco-operative, and threatened Mr Gubbay with physical violence. Mr Gubbay’s conclusions included the following:-

The Plaintiff has largely, if not completely feigned psychological disturbance, including anger, aggression, depression, anxiety and related functional impairment;

There were a number of inconsistencies between the Plaintiff’s account given to Mr Gubbay and documents made available to Mr Gubbay including army records and the reports of other doctors;

Some reported symptoms and behaviour were contradictory;

It is unlikely that the Plaintiff is suffering from any diagnosable mental disorder, attributable to the Plaintiff’s time in the police force and, if the Plaintiff is suffering from any mental disorder, it is likely to be related to pre-existing personality factors;

Mr Gubbay suspected that the Plaintiff met the criteria for a Major Depressive Disorder from the time that he learned he would not be posted to the country again in late December 2001;

If so the additional diagnosis of an Adjustment Disorder was not warranted;

It is unlikely that the Plaintiff had schizophrenia or Post-Traumatic Stress Disorder although the Plaintiff might well have a Personality Disorder;

Mr Gubbay had no reason to believe that the Plaintiff had any disturbance of reasoning or judgement and his aberrant behaviour was functional;

The most likely explanation for the Plaintiff’s unemployment is a conscious, reasoned decision, and

The Plaintiff’s threatening behaviour is contrived, designed to convince an assessor that he cannot relate to people.

240 Mr Gubbay’s report was the subject of a similar objection to that of Dr Bell.

241 Dr Taylor who was the Plaintiff’s general practitioner for a number of years opined that the Plaintiff would require extensive, at least weekly, musculo-skeletal treatment including physiotherapy and possibly hydrotherapy and osteopathic and chiropractic treatment. Dr Taylor advised that in addition, the Plaintiff should have weekly visits to a psychologist and monthly visits to a psychiatrist. These forms of treatment, according to Dr Taylor, would probably be lifelong. Dr Taylor estimated the cost of these treatments to be between $310 and $335 per week. He also expressed the view that the Plaintiff’s employment prospects were very slim.

242 Dr Taylor was cross-examined on the fact that the Plaintiff had not pursued such a regime of treatment to this time but maintained his view about the Plaintiff seeing a psychologist and psychiatrist, saying that he thought the Plaintiff might be more receptive to doing so once these proceedings concluded. He referred to prescribing antidepressant medication for the Plaintiff though acknowledging that the Plaintiff ceased to take it some considerable time ago. He said that antidepressants might have a place in the Plaintiff’s future treatment.

243 I do not think it necessary to refer to the contents of other reports. They present no significantly different diagnoses of any weight. With the exception of, possibly, Dr Milton, none of the doctors whose reports were tendered by the Defendant favoured temporal lobe epilepsy. However reference must be made to a large volume of material consisting of the Plaintiff’s army medical records. They bear out the references to past examinations, injuries and symptoms of injuries referred to in the above summary of more recent medical reports. They show that the Plaintiff’s accounts to a number of doctors of no prior problems of various types were simply wrong. Insofar as opinions have been based on these erroneous statements or, more accurately since the Plaintiff bears the onus of proof, insofar as it is not shown that the opinions were not based on an inaccurate history, those opinions are of no weight.

Impact on Plaintiff

244 Since 1992, the Plaintiff has had a number of changes of residence, apparently inspired by particular incidents. Most of these incidents were not detailed although he described one as the police hassling him after a car accident. In the first half of 2006 he moved to Ferntree Gully in Victoria having lived in Byron Bay for some years previously.

245 The Plaintiff said that on a typical day he wakes at 3am, then spends an hour or more in a spa trying to loosen up physically and mentally. Physically what is loosened up is his left hip, groin, neck, hands and wrists. For a period he then writes poetry or goes onto the internet although the latter activity has stopped or reduced since he began to suspect that the Defendant was interfering with it. The rest of the day is spent in watching documentaries, eating, sleeping or returning to the spa.

246 For some time he rode a bike regularly but needs one with suspension in the front for his wrists and in the rear for his back. However the absence of jolting that is a consequence of the suspension means that there is a build up of lactic acid in his muscles and he needs massage. There have been difficulties in having that massage in Ferntree Gully either – the evidence was not as clear as it might have been - because of its unavailability or because he finds it very hard to be touched.

247 Mrs Bennie gave evidence that prior to the incidents at Menindee, the Plaintiff played tennis at Tallimba, indoor cricket at Leeton, some basketball, outdoor cricket and golf.

248 Mrs Bennie said that since 1992, the Plaintiff has lost a great deal of weight, evidence that finds a deal of support in photographs tendered. She gave evidence that since 1993 there have been only 2 occasions she can remember when she and the Plaintiff have successfully slept in the same bed for the entire night. Mrs Bennie’s description of the cause may be summarised as extreme restlessness on the part of the Plaintiff.

249 Mrs Bennie said that since 12 February 1992, the Plaintiff has become an entirely different person - at the beginning withdrawn, then a walking zombie who would not look where he was going, then difficult to handle and easily angered, and punching holes in walls. Example was provided in the week-end before Mrs Bennie gave evidence and after the Plaintiff had. She said that the way the Plaintiff tries to alleviate pain in himself is to hurt himself and during that weekend had hit the door of the motel 3 times with his head.

250 A disagreement between them followed in the course of which the Plaintiff accused Mrs Bennie of being against him, being paid by and sleeping with the other side, said that he could not trust her any more, and refused to let her walk to court with him.

251 The Plaintiff becomes easily startled, particularly if approached from his right side, and then he becomes angry. The problem is so great that Mrs Bennie has hung bells around their home so sounds are made to alert the Plaintiff. Mrs Bennie described his reaction if startled as if he is full of adrenaline, rigid and as if he is about to lunge at her. Sometimes he will calm himself down and on others will rave and yell at her. Sometimes she has to hold and comfort him.

252 She recounted an incident in a shopping mall when two policemen passed by. The Plaintiff became upset, trembling and weak and had to sit down for a short time. He told his wife that one of the policemen was Constable Dimatteo.

253 In addition to the matters to which I have referred, both the Plaintiff and his wife said that he suffered from paranoia.

254 The Plaintiff drives at times but tries to avoid doing so, having told his wife that he does not want to come into contact with police. He cycles regularly according to Mrs Bennie but engages in no other regular sporting activity. Previously in Byron Bay he also body surfed. The tenor of Mrs Bennie’s evidence was that this was about once a fortnight. There was evidence that the Plaintiff had been kayaking once.

255 The evidence was not exhaustive as to the medical and similar treatment that the Plaintiff has had. He said that after the 12 February 1992 he saw a chiropractor in connection with his shoulder and over the years had continued this type of treatment. In 1994 he was continuing to have problems and had an electrogram. The Plaintiff seems also to have seen a chiropractor early in 2007, this being the first time for a year or two he had seen such a person or an osteopath.

256 He had physiotherapy between March and September 1992 from a Jan Colaco.

257 From December 1993 to June 1994 the Plaintiff consulted a psychologist, Julie Hollingdale. He saw another psychologist Noelle Tabart from December 1994 for some 10 sessions. From January 1994 he was also seeing a general practitioner Dr Debra Tattersall, saying he felt comfortable with her and used her as his psychiatrist. She remained his general practitioner until at least May 1997.

258 The Plaintiff gave evidence that since he moved to Ferntree Gully he has not had any medical treatment but that his intention is that, if successful in his claim, he would follow the advice received.

259 The cross-examiner however drew from the Plaintiff that he had seen a general practitioner on three occasions, once for referral to a psychologist, a Ms Mackay. The Plaintiff saw this last mentioned person twice, walking out on the second occasion. He said that his last previous visit to a psychologist was in 2002. The Plaintiff had told the Compensation Court that he did not think that counselling was good for him.

Other post - 12 February 1992 Events

260 On 14 January 1992, in the absence of the Broken Hill Patrol Commander, Sergeant Burrows asked that the Plaintiff’s promotion to Senior Constable be deferred. In the letter it was asserted that Inspector Shipp had concerns as to the Plaintiff’s performance, that the Plaintiff had undergone a psychiatric evaluation and was currently on sick leave for a stress related illness. Some 2 weeks later the Medical Director advised that the Plaintiff’s promotion be deferred until he had 6 months full operational performance at Macquarie Fields.

261 On 9 March 1992, an Acting Senior Investigation Officer in the Office of the Ombudsman wrote to the Commissioner of Police in response to a letter of 26 February 1992 observing that as the allegations by the Plaintiff concerning the conduct of Constable Strong were hearsay and there appeared to be no supporting evidence, she agreed that no further action was required in relation to the complaint and that other matters (unspecified) could be dealt with as internal management issues. In that the terms of this communication tend to indicate that there was no evidence contradicting what the Plaintiff had said, despite a number of persons indicating as having personal knowledge being named by the Plaintiff, the document tends to indicate that such persons were not spoken to. An objection by counsel for the Plaintiff on the grounds of relevance was made and my decision deferred. Thus I regard the document as admissible.

262 At some stage – the letter is undated - the Ombudsman wrote to the Plaintiff advising that the complaint against him concerning the recording to the telephone conversation with Constable Rodoreda had not been sustained. Reference was made to a provision in the Listening Devices Act entitling a person to record a conversation to protect that person’s interests.

263 On what appears to be 21 April (presumably 1992) the Ombudsman wrote concerning the Plaintiff’s involvement with Mr Lawrence King. The Ombudsman said that he was satisfied that the complaint of an assault on Mr King at Broken Hill Police Station as reported by Constable Lenardon was not sustained but that because evidence was conflicting, the Ombudsman was unable to determine an issue concerning the Plaintiff’s conduct at the arrest of Mr King in Menindee.

264 On 15 May 1992 the Ombudsman wrote to the Plaintiff advising that, while in light of Constable Barham’s report he had concerns about the Plaintiff’s approach to Mr Ray, the evidence was conflicting and the Ombudsman was unable to determine where the truth lay.

265 In addition to the documents to which reference has been made, Exhibit K also contained a number of communications from the Plaintiff to a member of Parliament, the Minister for Police, the Attorney General, the Premier and the Police Association, some communications in reply, and also a Report of the Ombudsman into complaints by the Plaintiff concerning his treatment on 12 February 1992. In part the documents that emanated from the Plaintiff made similar allegations as to events at, an arising from events at, Menindee and on 12 February 1991 as those contained in the Plaintiff’s evidence here. In part those documents complained of the way the Plaintiff had been treated by the Police Service and other branches of government since.

266 Most of these documents were admitted not as evidence of the truth of the facts asserted but as an indication that the Plaintiff had not simply sat back and accepted what had happened. They certainly demonstrate that.

267 In submissions, counsel for the Plaintiff also placed reliance on findings or conclusions of Judge Geraghty in the Workers Compensation Court. His Honour’s decision and reasons were tendered originally on the estoppel issue, counsel for the Defendant reserving his position in respect of any wider use of the document. Counsel’s submission ignored the terms of s91 of the Evidence Act that provides that such findings or decisions in earlier proceedings are not admissible to prove the existence of a fact that was in issue in such proceedings.

268 Particularly having regard to the extent to which the ombudsman’s findings were based on evidence of persons who were not called before me, evidence that to a large extent was controversial, I am also not persuaded that I am entitled to or, if that be wrong, that I should, regard the Ombudsman’s findings as persuasive evidence of the truth or accuracy of those findings.

269 During 1992 the Plaintiff was also seen by Dr McGinty, a police medical officer and a number of her records are in evidence. I shall not attempt a comprehensive summary of these but some extracts may provide and indication of the Plaintiff’s then situation. In notes of 23 March 1992 there are recorded a series of complaints by the Plaintiff concerning events at Menindee, his transfer, the incident on 12 February, that “Welfare no good – not interested in his case”, that the “Police department has stolen the best years of this child’s life by making him the way he is – now he knows the feeling of hate – walked on the sand tasted the blood”, “all he wants to be is a cop – can a policeman be too honest, can a surgeon’s hands be too clean”. Dr McGinty’s recorded his impression:-

“ – unfit today

- ? real story > truly persecuted > paranoid delusions > psychotic”

270 In notes of 27 April Dr McGinty recorded that the Plaintiff was “much more subdued today” and continued to see Dr Spragg. On 2 June Dr McGinty recorded, “very suspicious today – says he will be medically discharged by ‘them’ but that he will not apply... I offered a suitable non-operational position be found for him but he said it would only be a matter of time before IA got him...”

271 On 2 June 1992, Dr McGinty noted that the Plaintiff was “very suspicious today”, that she had offered the Plaintiff a suitable non-operational position but that the Plaintiff had said it would only be a matter of time before I A got him.

272 On 3 July 1992, Dr McGinty records the Plaintiff saying that he “feels he will never be able to return to being a policeman and he was ‘a dammed good copper’ – would have “won a gold medal in street policing” – as good as he could be ... policing as an ”art” better than any other police officer in NSW...”

273 Dr McGinty’s notes of 8 July 1992, recorded that the Plaintiff continued to see Dr Spragg, continues to complain of weakness in his right shoulder “ – never will be able to throw a ball/play tennis with right arm...” and “feels he will never be able to return to being a policeman and he was a “dam good copper” – would have “won a gold medal in street policing” ...

274 On 3 August Dr McGinty recorded that in her opinion the Plaintiff suffered from a psychiatric illness which rendered him unfit to continue in the employment of the police service and had therefore initiated steps to have the Plaintiff discharged medically unfit by the Police Superannuation Advisory Committee.

275 On 3 August 1992, Dr McGinty wrote to the Assistant Commissioner, Professional Responsibility, saying that she had reviewed the Plaintiff on 5 occasions and expressing the opinion that the Plaintiff suffered from a psychiatric illness that rendered him unfit to continue in the Police Service. In a report of the same date Dr McGinty also remarked that the Plaintiff had been under the care of a consultant psychiatrist for over 6 months and his condition had not improved. Dr McGinty also said that she did not believe the Plaintiff’s condition would improve sufficiently to enable him to be safely deployed in Police work and recommended that the Plaintiff be discharged as medically unfit.

276 A letter of 5 August 1992 from the Senior Rehabilitation Officer records that the Plaintiff was referred to the Rehabilitation Section on 6 February 1992 by the Broken Hill Patrol Commander but was advised by the Staff Officer, Personnel and the Police psychologist Mrs Dean-Butcher that workplace rehabilitation was inappropriate and that it was inadvisable for Mr Doak to contact the Plaintiff. A file note of Mr Doak of 27 February 1992 suggests that Mrs Deane-Butcher’s recommendation may have been because the Plaintiff was “very angry with the Police Service”. A letter from the Medical Discharge Co-ordinator of 7 September 1992 to the Police Superannuation Advisory Committee confirmed that, following advice to the Section from the Police Psychologist, the Rehabilitation Section had not become involved in the matter.

277 Dr McGinty’s notes of 19 August recorded “agitated and angry today - ... stated that he does not believe that any assistance has been offered – psychology welfare... his career is dying before his eyes – and no one is helping him. Today completely impossible to converse – very self absorbed today”.

278 In a letter of 14 July to Dr McGinty Dr Spragg, who had seen the Plaintiff regularly since the beginning of the year, wrote that he found no change in the Plaintiff from that recorded in January and February, saw little hope of rehabilitating him in the Police Service and considered that the Plaintiff should be discharged on medical grounds.

279 Another letter from Dr Spragg of 25 August to which I have already referred briefly, included the following:-

“Over the period I have treated him Mr Bennie’s condition had deteriorated to the extent that he has been exhibiting irrational behaviour and has been totally unfit to perform police duties.

His behaviour is unpredictable. Giving evidence in a Law Court is liable to create a strain which will cause further deterioration in his uncertain personality integration. He is an extremely angry man but so far has been able to contain his aggressive drives...

... His behaviour on the witness stand is unpredictable and may well lead to unforeseen circumstances determined by his immense anger and a sudden inability to control it.”

280 A letter from Dr McGinty of the same date also contained the opinion that the Plaintiff was not fit to give evidence.

281 On 13 November 1992 the Plaintiff wrote to the Police Service’s Employee Assistance Branch referring to a visit to the Plaintiff on the previous day, an offer then made of assistance, saying the Plaintiff wished to avail himself of such services and asking for information as to the range of assistance available. Little or noting seems to have resulted.

282 The Plaintiff also gave evidence that in the latter part of 2002 the Defendant claimed that the Plaintiff had been overpaid compared with what he was entitled to by way of pension and in 2004 the trustee of the Police Superannuation Scheme instituted proceedings to recover this sum. When proceedings reached court the trustee apparently abandoned its claim but the Plaintiff saw this as further harassment of him.

283 Reference was made also to another incident involving a man with a stop sign who according to the Plaintiff hit him in the face with it. I do not think it necessary to pursue this beyond saying that it tends to indicate both a potential for violence and paranoia in the Plaintiff.

Statutory Matters and Opinion Evidence etc

284 In the Statement of Claim and argument a number of statutory provisions, Police Instructions and the like were referred to. Principally relevant are provisions of the Police Regulation (Allegations of Misconduct) Act 1978 and of the Police Service Regulation 1990,

285 Although in substance the first of these said that it did not affect any right a person had to complain otherwise than in accordance with it, the Act was effectively concerned with only complaints in writing. It required a member of the Police Force receiving such a complaint to “forthwith by telephone notify the Internal Affairs Branch of particulars of the complaint” and send the document incorporating the complaint to the Commissioner.

286 Regulations 9(8) of the Police Service Regulation (NSW) 1990 provides:-

“Police officers should not arrest a person for a minor offence when it is clear that a summons will ensure that offender will be dealt with by a court.”

287 Regulation 9(9) proves in effect that the greatest care should be taken to prevent the possibility of an innocent person being arrested, details specific steps to be taken in that connection and in the event that error occurs.

288 Regulations 30 and 31 of the Police Service Regulation 1990 provide-

(1) If:

(a) An allegation is made to a police officer that another police officer has engaged in conduct which, in the opinion of the officer to whom the allegation is made, constitutes a criminal offence or other misconduct; or

(b) a police officer sincerely believes that another police officer has engaged in any conduct of that kind

The officer is required to report the conduct or alleged conduct by the other officer to a senior police officer (being a police officer who is more senior in rank than the officer making the report).

(2) This clause does not apply to conduct or alleged conduct:

(a) that has been made the subject of a complaint under the Police Regulation (Allegations of Misconduct) Act 1978; or

(b) that has been the subject of evidence or other material given, or submissions made, in the course of criminal proceedings; or

(c) that has already been reported under this clause to a senior police officer.

31. A senior police officer to whom conduct (or alleged conduct) by a police officer is reported as referred to in clause 30 is required to report it promptly to the Officer-in-Charge of the Internal Affairs Branch if the senior police officer believes that the conduct (or alleged conduct):-

(a) constitutes ( or would constitute) a criminal offence by the officer; or

(b) would provide sufficient grounds for preferring a departmental charge against the officer.

289 Section 32 of the Act proscribes victimisation, in various ways of a Complainant in retaliation for making a complaint. Those ways include “otherwise act to the detriment of” the complainant.

290 Some of the witnesses expressed opinions concerning some of the matters to which I have referred. Inspector Grace was asked if Inspector Shipp and Sergeant Morton were obliged to report the Plaintiff’s complaints of 28 August to Internal Affairs. He said that if an allegation were of a less serious nature, there were entitled to make preliminary enquiries and if they found that there was not truth in the complaints were entitled to take the allegation no further. If such enquiries revealed serious misconduct or criminal conduct, they were obliged to notify of it, even if the complaint was not in writing. The Plaintiff’s oral allegations against Constable Strong of the unlawful use of motor vehicles, driving under the influence and unlawful assault were so serious that they had to be reported to the Internal Affairs Branch or to the Ombudsman.

291 In that connection it is probably appropriate that I mention that Constable Strong was known to the Internal Affairs Branch, having been the subject of a number of prior complaints and on one occasion having had the benefit of s556A of the Crimes Act.

292 Assistant Commissioner Peate expressed the view that the matters could, at least initially, be left with the local command, in this case Broken Hill to deal with. He seemed to take the same view in respect of at least most of the matters referred to in the written aide-memoire.

293 Assistant Commissioner Peate expressed the view that it was important that something like the Plaintiff’s aide-memoire of 28 October should be kept confidential to protect both the person reporting and the person the subject of complaint because the contents amounted to basically unsupported material. He did not however, regard the information as falling within the concept of whistleblower’s information because it did not seem to have significant tangible value as opposed to possibly malicious gossip.

294 Detective Inspector Grace also agreed that confidentiality was important because of the potential comeback against someone who is seen to have dobbed on his mates, that comeback including the ostracising and unpopularity of a complainant. Such a culture existed in 1991 and to some extent still does. The object of Inspector Grace’s proposal of an aide-memoir to him and the subsequent attendance of other officers to ask the Plaintiff questions was to keep the Plaintiff’s identity confidential.

295 Reference should also be made to Exhibit O which included a number of reports obtained. The documents included extracts from:-

1. Circulars issued from the Office of the Commissioner of Police for the years 1980, 1983 and 1985.

2. Report by Mr Justice Lusher of the Commission to enquire into the New South Wales Police Administration dated 29 April 1981.

3. Annual reports of the Ombudsman for the years ended 30 June 1985 and 1986.

4. An article from the Australian Journal of Public Administration of June 1988 entitled “Whistleblower Protection in the USA: Lessons Learnt and to be Learnt”.

5. Article from the Australian Law Journal of April 1991 entitled “The Protection of Public Service Whistleblowers.”

296 In part these documents are directed to demonstrating the importance there is in persons in an organisation being able to report misconduct of others in that organisation, of the risks and disadvantages to the person reporting that are likely to exist and of the need for an organisation such as a police force to take steps to protect a person complaining from such risks and disadvantages. In part also the documents refer to the stresses of police work, and of the need for counselling and other health services calculated to minimise the deleterious impact of some of those stresses on officers susceptible to such deleterious impacts.

297 It is not necessary that I detail any of the contents of these reports. I have no difficulty in accepting the matters to which I have just referred.

298 Reliance was placed by the Plaintiff on Circulars dated 30 May 1983 and 15 August 1985 issued from the Office of the Commissioner of Police. The only part of the 1983 circular that seems relevant is paragraph 11(b) that provides:-

The Officer in Charge of a Station to which a member of the service has reported off sick will also arrange for a visit to the residence of the member of the Force concerned in circumstances such as:-

(i) Where because of the nature of the illness or injury, the welfare of the member of the Force, or Family, may be in doubt.

(ii) ...

(v) At the request of a Senior Officer or the Police Medical Officer.

(vi) Other reasons as considered necessary.

299 The 1985 circular asserted that staff of the New South Wales Police Welfare Unit were in a position to liaise with a number of internal and external welfare agencies and “assist members with any personal, family or work related problems, assist in the rehabilitation of injured or sick members” and the service was available to, inter alia, to all police and their immediate family and retired police.

300 Finally in this area, complaint was made that the Defendant had failed to ensure compliance with Commissioner’s Instructions 37.01 and 155.2.04.

301 In the first of these attention was drawn to the broad powers of arrest a police officer has and went on to say that, despite those powers -

“... the circumstances of each offence will determine whether, in the particular case, the extreme action of arrest is warranted in the public interest. ... Matter to which you should have regard include:

Ensuring the person will appear in court

...

preventing the continuation or repetition of a criminal offence

ensuring the safety or any person or property (e.g. by the imposition of a bail condition)

establishing the identity of the offender.

302 So far as is presently relevant, Instruction 155.2.04 said:-

“Do not use restraint methods on people which constrict the air supply or carotid pressures such as “choke holds” or “head locks”. Only use choke holds as a defence of last resort and where there is a real threat of personal injury.”

Commentary

303 Logically anterior to the making of any judgment as to the reasonableness of the conduct of the Defendant and the police officers whose conduct is the subject of criticism in the proceedings is a resolution of a number of the factual issues that arise and an indication of my factual findings.

304 Counsel for the Defendant submitted that no findings adverse to his client in a number of areas of the case could be made unless I was satisfied to the Briginshaw v Briginshaw (1938) 60 CLR 333 standard. Subject to that obligation being understood in light of what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, (1992) 67 ALJR 170, I accept that this is so in the case of the allegations of criminality and, I am prepared to assume, what may amount to possible criminality. I include in these categories the assault said to have occurred on 12 February 1992, the suggested fabrication of allegations of misconduct by the Plaintiff, the orchestration of the group of complaints on or about 1 November 1991, and the victimisation of the Plaintiff. I do not regard other matters as requiring that the Briginshaw standards be met.

305 Given the passage of time since the events, the natural tendency of persons, particularly after the passage of time, to see their own conduct in a good light or at least justified, the fact that none of the principal witnesses to events have so impressed me that I am disposed to accept or reject all they have to say when in conflict with other evidence, and in the case of the Plaintiff, the undoubted fact that his state of mind is not completely normal, the resolution is not in all respects easy.

306 So far as I feel I can, I accordingly intend to place weight on contemporaneous evidence and what seem to me the inherent probabilities in a situation.

307 I have already made some remarks somewhat critical of the actions or evidence of Sergeant Morton and Constables Blayden, Barham and Lenardon. There are sufficient inconsistencies between various statements of the Plaintiff as to throw doubt on his credibility or reliability also. Perhaps the starkest example of this relates to the Plaintiff’s right shoulder. References in his army records to this area indicate that it was the subject of complaint or medical consideration on a number of occasions and the subject of disclosure of problems by the Plaintiff. It is inconceivable that if the Plaintiff had been forthright with the doctors who have given consideration to it after 12 February 1992, they would have written reports in the terms they did.

308 Dr Milton’s report of 2 November 1997 suggests a harsher judgment of the Plaintiff’s credibility should be made. Dr Milton records that the Plaintiff informed him that he had not suffered any serious health problems previously apart from glandular fever. The army medical records demonstrate that any such statement was wrong. And the extent and frequency of treatment recorded in those documents make it impossible, even making some allowance for the Plaintiff’s emotional state in December 1991, to see how any statement to the effect of that recorded by Dr Milton can have been other than deliberately false. Not dissimilar inconsistencies between the Army records and other doctors’ reports – some from doctors instructed by the Plaintiff’s solicitors - are to be seen elsewhere also.

309 As I indicated, circa [57] above, the Plaintiff gave evidence that he had significant discussions with Constable Blayden about Constable Strong. Yet in his interview with Inspector Glasheen he said, albeit in the context of his aide-memoir, that he did not expressly discuss with Constable Blayden any of the allegations “as I formed the opinion that Rick was aware of some if not all of the allegations. As much of the information I gained came from or was confirmed by Linda Blayden”. (sic)

310 Many of the medical reports that are in evidence indicate that the Plaintiff has been quite inconsistent on the topic of whether or not he was contemplating suicide at the time he was near the train lines on 12 February and his evidence here on that topic is quite inconsistent with the more or less contemporaneous records from Campbelltown Hospital.

311 On the other hand it is proper to also record that my impression of the Plaintiff during his evidence was that he was honest in his evidence and that a number of the features of his personality referred to by the psychiatrists whose reports were tendered argue for his being honest. The reports to which reference has been made and a number of references from the citizens of Tallimba that came into evidence argue in the same direction.

312 This inconsistency of factors bearing on the Plaintiff’s credibility has made my task substantially more difficult than it might otherwise have been. I incline to the view that, in addition to the natural tendency to see others rather than oneself at fault, at least a partial explanation lies in the deterioration of the Plaintiff’s psychological state that has occurred since he went to Menindee and his obvious antipathy towards the Police Service. I do not mean in that statement to suggest that there is any simple correlation between the Plaintiff’s credibility and the progress of time and the matters referred to. It seems to me that at least in large part, the Plaintiff’s evidence on each aspect of the case has to be considered separately.

313 I turn to a number of issues that seem to me to arise. Firstly, I am satisfied that the attributes of Constable Strong about which the Plaintiff complained were not fabrications by him and that the Plaintiff believed they were matters of concern and merited investigation. The various commentaries on the Plaintiff, including those from the citizens of Tallimba and police reports to that time and some of his attributes spoken of in some of the medical and like reports and my own impression of the Plaintiff lead me to the view that the Plaintiff was at that time honest and not someone who would have simply fabricated the allegations. (In that last sentence, I have used the expression “at that time”. At this stage of my reasons I need go no further.)

314 It seems likely that the Plaintiff’s motivation was at least substantially inspired by his disposition to see things as black or white and a belief that anyone who behaved as the Plaintiff said Constable Strong did should not be in the police force. That said, it is likely that part of the Plaintiff’s motivation was his view that Constable Strong was something of a pig and that he and Sergeant Blayden (and possibly the citizens of Menindee) would be better off Constable Strong was not there.

315 On the other hand, while I am disposed to accept that Constable Blayden and/or his wife were probably the source of some of the information that the Plaintiff passed on to Sergeant Morton, I am not satisfied that Constable Blayden was the source of the information to the extent that some of the evidence of the Plaintiff suggests – see paragraphs 44, 48 and 58 above. Had Constable Blayden been so much a source, it seems to me inherently unlikely that there would not have been far more discussion between the Plaintiff and Constable Blayden before the Plaintiff spoke to Sergeant Morton than the evidence suggests. It is a matter of significance in this connection that the Plaintiff chose to make his complaints in Broken Hill rather than to his immediate superior, Constable Blayden.

316 The next area of dispute that arises in the Menindee context concerns the Plaintiff’s meeting with Inspector Shipp and Sergeant Morton on 28 August 1991. One issue between the Plaintiff and Sergeant Morton that arises on the evidence is the extent to which the Plaintiff provided names that might have assisted in investigation of his complaints. It is inherently likely that, if not volunteered, they would have been asked for. The Plaintiff could not have expected to be taken seriously if he was not able or willing to disclose any and he could hardly refuse a request by his superiors. The fact that the Plaintiff wanted Constable Strong’s removal and thus an investigation provides an added reason for him to disclose at least a number of names. Thus on this topic I prefer the evidence of the Plaintiff to that of Sergeant Morton.

317 It does not necessarily follow that the Plaintiff provided all that were mentioned in subsequent documents. He may have had some hesitation in embarrassing Constable Blayden at that time and he may have felt that full disclosure would itself lead to a loss of confidentiality. It is one thing to complain about a more junior officer. It is another to complain, even implicitly, about the totality of a command after only 10 days.

318 I accept that the Plaintiff declined to make a formal complaint but, again preferring the Plaintiff to Sergeant Morton, not that he was told or advised to put the complaint in writing, as distinct from being asked if he wished to do so. I accept also that the Plaintiff was told the matter would be kept confidential. I shall defer until later my view as to the limited operation that could be given to that undertaking.

319 I am not persuaded that Inspector Shipp “launched into a formal speech” or that he or Sergeant Morton, either by body language or otherwise, refused to accept the Plaintiff’s complaint or that their conduct reasonably gave that impression. On the other hand, they had reason to be sceptical and it may well be that the Plaintiff mis-read that scepticism. The Plaintiff had been in Menindee but 10 days. If Constable Strong’s conduct was anywhere near as bad as the Plaintiff described it, it would be surprising that Constable Blayden or some members of the community had not reported it previously. There was no evidence in the case to suggest that any such reporting had occurred and I would accordingly infer that it had not.

320 It is also appropriate to recognise that if any significant part of the Plaintiff’s account on 28 August of Constable Strong’s misdeeds were true, and the Plaintiff had heard of them within 10 days, it is impossible to believe that Constable Blayden had not. And, if Constable Blayden heard about them, the proper performance of his job, and his own self-interest if he wanted to remain a policeman, required that he take steps to investigate them or have them investigated. Whether or not they were intended to do so, the Plaintiff’s complaints to Inspector Shipp (and his subsequent repetition of them in the aide-memoire) amounted to a substantial criticism of Constable Blayden.

321 Although Inspector Shipp and Sergeant Morton were unlikely to have known of this at the time, it might also be noted that, between the Plaintiff’s arrival in Menindee and 28 August, there had been, according to the roster, only a very few days when he had worked at the same time as Constable Strong.

322 Furthermore, if the Plaintiff mentioned his suspicion of assaults on Graham and Cain, it is not unlikely that he also mentioned that they had denied any assault. If so, the question would undoubtedly have arisen in the minds of Sergeant Morton and Inspector Shipp whether those complaints were worth investigating.

323 Another matter to be considered is the particularity or extent of the Plaintiff’s complaints. Judged by what the Plaintiff is recorded as saying on 6 September and his own aide-memoire of 28 October many of the complaints – at least as a subject for investigation of the past – were vague and there is no basis for thinking that more particularity was given to Sergeant Morton and Inspector Shipp.

28 August - 27 October 1991

324 Neither party sought to call evidence definitive of the extent of the enquiries that were made at any time after the Plaintiff’s complaints on 28 August. It is clear that there were some. At the direction of Inspector Shipp, Constable Blayden made enquiries on the topic of Constable Strong’s use of marijuana. Sergeant Morton said he made none although Constable Blayden said that he became aware of inspector Shipp and Sergeant Morton making some. Sergeant Burrows made enquiries on 24 October though the fact that those enquiries were described as “preliminary inquiries” and included some of the local community suggests that none, or at least none of any formal or substantive kind, had been made before that. That inference is made stronger by the concluding paragraph of Sergeant Burrows’ report which seems to indicate that there is no contrary evidence to be put in the scales against Constable Strong’s statements. The imprint of the “Internal Affairs” stamp on 29 October indicates that body was involved no later than that time and, given that Sergeant Burrows’ report was favourable to Constable Strong, it seems to me unlikely that it was the first notification to Internal Affairs of the Plaintiff’s complaints. On the other hand, the history of what did occur certainly tends to indicate that the Plaintiff’s complaints were not passed on by Inspector Shipp or Sergeant Morton to Internal Affairs “promptly” as required by regulation 30 of the Police Service Regulations. And although one must recognise the possibility that the request may have been inspired by some knowledge of the Plaintiff’s complaint of 28 October, Constable Blayden’s report of 24 November was the result of a request from Inspector Shipp.

325 The request to Constable Blayden was bound to lead Constable Blayden to have at least a suspicion that the Plaintiff had lodged some complaint. Constable Blayden acknowledged that he formed the suspicion to which I have referred, an event no doubt made virtually certain given the dislike of Constable Strong that the Plaintiff had and had made apparent to Constable Blayden.

326 Sergeant Burrows’ interview of Constable Strong on 24 October does raise some questions. The directive that Sergeant Burrows referred to in the report is not in evidence, the report does not identify the assaults being investigated and in the witness box Sergeant Burrows could not recall any details of them. He could not say that his investigation was related to the Plaintiff’s complaint although, when the totality of the report is taken into account, including the discussions with Mr “Papalovich”, I draw the inference that it was. The generality of some of the Plaintiff’s complaints is a not unlikely inspiration for Sergeant Burrows’ inquiries about “Police Service Delivery”.

327 It is appropriate to question why the preliminary enquiries were made of Constable Strong. It was in the highest degree unlikely that he, a police officer, would admit any offence and while sometimes details provided by a suspect are useful to the prosecution, the terms of Sergeant Burrows’ report do not indicate that any such matters were pursued. I think that in this Division of the Court I may take judicial notice of the fact that, unless an investigator is pursuing some details and seeking to tie a suspect to a story, it is not a usual technique in the investigation of offences for the person suspected to be interviewed at a very early stage.

328 Sergeant Burrows’ interview could not but have raised in Constable Strong’s mind the likelihood that someone had complained about him. Having regard to the Plaintiff’s general nature, and the fact that his dislike of Constable Strong became apparent to others, it is probable that that dislike was apparent to Constable Strong. When one combines this with the relative recency of the Plaintiff’s arrival in town, one is led to the conclusion that no later than 24 October, the Plaintiff was almost certainly believed by Constable Strong to have made complaint concerning him. That said, there was no evidence that in this period the Plaintiff was subjected to any of the harassment or other conduct of which he complains.

28 October – 27 November 1991

329 As has been said, the Plaintiff was on leave from 1 to 27 November. Nothing of which the Plaintiff was then aware seems to have occurred during this period except the request to him by Inspector Grace and the writing and submission by the Plaintiff of his aide-memoire of 28 October. However, noteworthy are a number of events adverse to the Plaintiff or at least possibly so occurring in this period. On 30 October, 3 days after being interviewed by Sergeant Burrows, Constable Strong happens to be engaged in conversation with Sergeant Morton and possibly Inspector Shipp and gives information to the effect that the Plaintiff had been guilty of an assault on Mr Rae on 6 October. On 1 November Constable Barham commits himself to paper about that matter for the first time. On 1 November Constable Lenardon committed himself to paper in respect of another incident, again alleging assault by the Plaintiff some 8 days earlier. On 1 November, Constable Blayden finds a tape recording made by the Plaintiff and makes a report about the matter on 6 November.

330 The coincidence of timing certainly gives cause for grave suspicion. However, also to be taken into account is the fact that the assault the subject of Constable Strong’s complaint was also the subject of a statement by the supposed victim, a civilian and, according to Sergeant Morton, an oral statement by the victim’s employer. Furthermore, the tape recording is of an incident that undoubtedly occurred and was recorded in the Plaintiff’s diary on 5 October.

331 The timing could be pure coincidence. It could be reflective of nothing more than efforts being made by Sergeant Morton or Constable Strong, in response to suspicions or dislike of the Plaintiff, making enquiries of anyone who might have some information possibly adverse to the Plaintiff, and persuading them to publicise that information. It could be indicative of a conspiracy to manufacture information or reports adverse to the Plaintiff. There may be other possibilities and the timing may be a combination of a number of these matters.

332 Sergeant Morton denied any impropriety in his conversation with Constable Strong but none of the other persons referred to were called or explanation given for their absence. This is despite the fact that in Particulars supplied in May 2002, the Defendant had been advised that the Plaintiff relied on the complaints about him as harassment and made in consequence of submitting his aide-memoire to Inspector Grace.

333 In these circumstances, and having regard to my reservations concerning some of Sergeant Morton’s evidence, I am entitled to, and do, draw the inference that seems to me to arise from the co-incidence in timing of the events to which I have referred. That inference is of harassment of the Plaintiff because of his complaint to Sergeant Morton, and this whether or not there was a legitimate basis for the allegations against him. Of course if the allegations against the Plaintiff were unjustified, that harassment was the greater and, on the basis of the evidence before me, the allegations, except that concerning the tape recorder, were unjustified.

334 This is, of course, different from that alleged in the Plaintiff’s letter of particulars which, so far as is presently relevant, confined attention to the aide-memoire. I think it improbable that that document came to the attention of any of the persons mentioned in connection with the events of and about 1 November and a question arises whether the inference I am disposed to draw is one on which the Plaintiff should be entitled to rely. However, that topic can be left for the moment.

28 November - 1 December 1991

335 Any police officer faced with allegations of having committed 3 criminal offences and of a nature liable to have an impact on his career would probably be upset by the fact. Such a reaction would probably be worse if the allegations were believed to have their source of support in other members of the police force and even worse if the officer concerned already had one prior experience that he believed was unjust or damaging to him. Any belief that the allegations were a tit-for-tat response to doing what the officer conceived to be his duty would also tend to increase the trauma.

336 Undoubtedly Inspector Glasheen’s remarks to the effect that anyone could see that the Plaintiff was being set up were likely to have been of some comfort on the issue of the likelihood to the complaints being upheld although the thought or fact of being set up was likely to be upsetting on its own. Inspector Glasheen’s reference to the Listening Devices Act was also calculated to reduce the impact on the Plaintiff of the complaint involving the recording in that it reduced the prospect of the complaint leading to a charge or the complaint being upheld. Nevertheless, I have no doubt that the Plaintiff was very upset by being told by Inspector Glasheen of the allegations against him.

337 The Plaintiff gave evidence that Inspector Glasheen informed him on 29 November and 1 December that he would be moved, that his complaints against Constable Strong had been dismissed, but that the Plaintiff would have to wait for the determination of the complaints against him. I have no difficulty in accepting that the third of these statements may have been made. Depending on the complaint, it is clear that there was more than the Plaintiff’s side to the matters alleged against the Plaintiff and it seems to me inherently unlikely that Inspector Glasheen would have made a decision on the spot about those matters.

338 By 1 December there was, however, an appreciable body of material concerning a least some of the Plaintiff’s complaints against Constable Strong. Constable Blayden, who during the course of Inspector Glasheen’s interviews was given a ringing endorsement by the Plaintiff, had reported in Constable Strong’s favour on the topic of marijuana, Mr and Mrs Papoleuca who did not wish to pursue the matter concerning Mrs Papoleuca, provided limited or no support for most of the Plaintiff’s complaints in that regard and, if accepted – and Mrs Papoleuca was in the best position to know - positively disproved the more extreme of the complaints. Enquiries by Sergeant Burrows and Constable Arender, albeit of only a limited number of people, tended to strongly contradict the allegation that “the town folk would be ready to accept almost any accusation made against” Constable Strong.

339 As I have said, the evidence was not definitive as to what enquiries had been made although the clear impression created by the evidence is that no attempt was made to speak to many of the persons named in the Plaintiff’s aide-memoire. In that Constable Arender’s notebook names persons she spoke, or tried to speak to, and omits any reference to many of the persons named in the aide-memoire, one is led to the conclusion that she did not seek to speak to the balance. However, there is no similar evidence in the case of Inspector Glasheen. If significant enquiries had been made and, depending on his authority about which there was no evidence, it is possible Inspector Glasheen was in a position to determine then and there that the Plaintiff’s complaints had been dismissed, though I would not have expected him to put the matter as definitely as the Plaintiff suggested. At his request Constable Blayden made a report timed and dated as at 4pm on 1 December 1991 although there was no evidence enabling one to conclude when or how this was passed to Inspector Glasheen.

340 The Plaintiff had said that he could not work with Constable Strong. I have no difficulty in accepting that, and the obverse, and that the only course reasonably open to the Police Force was to move one of them. I doubt whether a final decision as to who should be moved had been made at that time and I doubt that it was one for Inspector Glasheen. In the result, I am not persuaded that Inspector Glasheen informed the Plaintiff as the Plaintiff asserted, although I have no difficulty in accepting that Inspector Glasheen may well have foreshadowed to the Plaintiff the likelihood of the events of which the Plaintiff spoke.

341 The inference is also irresistible that by the conclusion of Inspector Glasheen’s visit, discord between the Plaintiff on the one hand and Constable Strong on the other was out in the open. So also by the following day when Constable Blayden and the Plaintiff spoke about the tape recorder, was there overt discord between them.

1 December 1991 - 11 February 1992

342 There is nothing in the evidence of events up to and including 30 December that seems to me to call for decision beyond my saying that insofar as there is any difference between the Plaintiff’s account of his conversation with Inspector Allen and Inspector Allen’s account, I accept the Plaintiff’s evidence, supported as it is by notes made soon after. I have no doubt either that throughout so much of this period as the Plaintiff was in Menindee, relations between the Plaintiff and the other police at Menindee were frosty and unpleasant.

343 On 31 December, the Plaintiff obtained a medical certificate. Despite the Plaintiff’s evidence, I am not persuaded that this was because of a roster change rostering the Plaintiff and Constable Strong to work together. In part this reflects my lack of confidence in the reliability of all that the Plaintiff said. In fact it reflects the fact that Constable Blayden was the only person who could have effected this change and I am just not persuaded of the stupidity and degree of vindictiveness that would have been involved in the making of such a change at that time. Even from the point of view of Constable Blayden’s own interests, such a decision would have been fraught with the potential for trouble.

344 However, that does not lead me to the conclusion that Plaintiff’s obtaining, on 31 December, of a medical certificate on the grounds of stress was not merited. I have no doubt that, even though the decision must by then have been expected, Inspector Allen’s decision and remarks on the 30 December must have been a crushing blow to the Plaintiff.

345 There followed a number of actions by all parties that I accept occurred and strike me as unreasonable. In light of the evidence as to the practise in that regard, Constable Blayden’s request for the return of the Plaintiff’s appointments does not fall into this category. A fortiori is this so in the case of the Plaintiff’s pistol when he was unfit to work because of stress. One can readily imagine the complaint that would have been made here about the Defendant failing in its duty of care had the Plaintiff been allowed to keep his pistol and then used it to harm itself. The Plaintiff’s response to the request was objectively unreasonable, even if understandable in light of his stressed state.

346 Constable Blayden’s cutting off of the phone was also unreasonable, at least as appears to have occurred, without advance notice and explanation. The prohibition on the Plaintiff using the Menindee station computer, and then the requirement that his use be supervised by Constable Strong were demeaning and, there having been no evidence to explain or justify these matters, also in my judgment unreasonable.

347 The Plaintiff’s refusal to meet with Assistant Commissioner Peate strikes me as childish as does his refusal to open the door to Constable Strong and pick up his appointments. Constable Strong’s mocking of the Plaintiff falls into the same category.

348 Although I am not persuaded that it is of any relevance to the issues in the case, I should say also that on the topic of the incident involving children in the cells at Menindee, I much prefer the evidence of the Plaintiff to that of Constable Blayden.

12 February 1992 – at Court

349 I see nothing in the events at court on 12 February that can be regarded as conduct of the Defendant of which the Plaintiff has any legitimate cause for legal complaint. In the first place, “written out” is an unusual expression to use when a witness, for whatever reason, is not required. Secondly, it is even more unlikely that it would be used by a clerk of the court who was unlikely to have known of the reasons why a particular witness was not required. Furthermore, the expression is not an appropriate one to simply reflect that fact that a case was not proceeding, whether that day or at all. While I accept that the Plaintiff genuinely believes that that expression was used, it seems to me more likely that it reflects his subjective reaction to being told that he was not required or that the case was not proceeding that day, than to accord with words actually used.

350 In any event, whatever was said to the Plaintiff was said by an officer of the court and not by any person for whom the Commissioner of Police was responsible.

351 I can accept that if the Plaintiff was not required, he was probably entitled as a matter of common courtesy to more information than he appears to have been given. However, such failings as may have occurred in this regard, even bearing in mind the events over the preceding few months, give no ground for legal complaint. Discourtesy is not a legal cause of action. This is so even putting aside the Plaintiff’s knowledge that from time to time cases are adjourned or witnesses not needed.

12 February 1992 – Railway Line

352 The Plaintiff’s subsequent conduct in walking along the railway property from Minto Station was irrational unless he had in mind to commit suicide. His actions in doing so, and the Campbelltown Hospital notes which I have quoted lead me the view that suicide was indeed something that the Plaintiff contemplated on that day although, having regard to the passage of time and what he was doing when observed by Constables Dimatteo and Fredericks, probably had, at least tentatively, decided against. Notwithstanding the discrepancy in distances between Constables Dimatteo and Fredericks on the one hand and Mr Aliende on the other, I regard the latter’s evidence as providing some support for the conclusion that the Plaintiff was contemplating suicide. The presence of two persons on railway property one kilometre apart at about the same time is inherently unlikely.

353 I turn to the issue of whether the Plaintiff was assaulted, and if so to what extent, following the arrival of those officers on the scene. In the first place, I do not recall a case where I have ever come across the degree of inconsistency in detail as there was between Constable Dimatteo and Constable Fredericks. Both were, of course, giving evidence many years later but both had recorded the event in writing at the time.

354 Albeit the circumstances were such that minds might legitimately differ as to the stage when force was first appropriate, even on Constable Dimatteo’s own account he does seem to me to have been more ready to use force than the circumstances required and, although he had an explanation for doing so, viz. a fear that the Plaintiff was liable to commit suicide, that explanation is difficult to reconcile with leaving Constable Fredericks outside the fence until after Constable Dimatteo had arrested the Plaintiff. Furthermore, it strikes me as in the highest degree unlikely that, if the Plaintiff was swinging punches and Constable Dimatteo was as close as he says he was, none of the punches would have connected. There is enough evidence in the case of the Plaintiff’s physical ability as to lead me to the view that if the Plaintiff had wanted to resist, he would be likely to have achieved appreciably more than he did. After all, according to Constable Dimatteo, he was alone with the Plaintiff at that time.

355 I should also record that at the time, I felt that some of Constable Dimatteo’s answers to questions by me were not convincing.

356 While I acknowledge there must be limitations in the comprehensiveness of an account of a struggle, Constable Frederick’s evidence is not easy to reconcile with the indications of injury apparent in the Campbelltown Hospital notes and impossible to reconcile with the severe bruising noticed by Ms O’Neill. The record of multiple bruises on the anterior aspect of the Plaintiff’s trunk and both shoulders does not fit happily with Constable Frederick’s evidence that the Plaintiff was not lying face or partially face down and with his evidence as to other events of the day. Constable Fredericks’ account provides nothing to explain what I regard as firm indications in those notes of significant hurt to the Plaintiff’s shoulders. Once the Plaintiff had both arms handcuffed together there must have been limited opportunity for shoulder injuries so painful as to preclude sleep.

357 Constable Fredericks’ evidence that Constable Dimatteo was never on top of the Plaintiff and the latter was never face down is difficult to reconcile with Constable Dimatteo’s evidence that the Plaintiff was face down and the former was on top – the latter being an event unlikely to be conceded unless true.

358 However, on this topic, I also have difficulty with some of the Plaintiff’s account. In the first place, I have no doubt that his state of mind was not such as to welcome the intrusion of someone in uniform. Although he had not then had the 15 or so years to seethe over his treatment by the Police Service that he had prior to the trial before me, it is clear that even then he was very upset at the Police Force. Albeit this occurred later at the Police Station, his refusal to agree to cause no “more” trouble in return for having his handcuffs removed is not consistent with any desire to be co-operative although of course it is consistent with his claim that he had not caused any in the first place. There are the inconsistencies in his statements about suicide to which I have referred.

359 The notes of examination reveal bruises on the Plaintiff’s front and other areas but no evidence of the Plaintiff having suffered the repeated blows to his lower back, buttock and thighs he alleges. There is nothing in the notes to support the Plaintiff’s claim of having been lifted or dragged by the hair and dragged through a barbed wire fence. There is evidence in the bruising observed at the hospital and elsewhere corroborating the Plaintiff’s evidence that the handcuffs were placed on too tightly. There is the significant bruising in muscles associated with the Plaintiff’s shoulders that Ms O’Neil observed three days later. And, though the weight to be placed on this is limited, there is the fact of the Plaintiff’s complaint at Campbelltown Hospital of an unprovoked attack on him.

360 Despite those of the matters just referred to which argue against the Plaintiff’s evidence, and others mentioned previously, I accept the basic part of his evidence concerning this incident. I suspect his account may have become more favourable to him over the years and I am not satisfied it is correct in all its incidents. Nevertheless, the conclusion at which I have arrived is that the Plaintiff did not exhibit the violence to which Constables Dimatteo and Fredericks deposed and that, even making allowance for the sorts of considerations referred to in Woodley v Boyd [2001] NSWCA 35, the former did use more force than was reasonably required. I am persuaded also that the handcuffs were too tight. Directing attention to the particulars of assault set forth in paragraph 18 of the Amended Statement of Claim,

(i) I am not persuaded that the Plaintiff was struck about the head, and upper and lower body:

(ii) I am persuaded that the Plaintiff’s arms were forcibly placed behind his back but and only in the case of the right arm am I persuaded that unnecessary and excessive force was used (in forcing it up);

(iii) I am not persuaded that the handcuffs were deliberately applied too tightly and the exigencies of arrest may well have explained any undue tightness originally. However, I am satisfied that they were in that situation and for far too long – certainly from soon after the time the Plaintiff complained in the police vehicle and probably from the time the Plaintiff was taken to that vehicle when, I find, there was opportunity to consider their tightness; and

(iv) I am persuaded that a pinch grip was applied by Constable Dimatteo unnecessarily and with excessive force, to an area between the Plaintiff’s right shoulder and neck.

361 Complaint was also made on behalf of the Plaintiff that the Commissioner’s Instruction 37.01 to the effect that before the extreme action of arrest is carried out, regard should be had to the availability of other forms of process such as a summons had not been followed. Constable Dimatteo said that he did give consideration to this matter. In the circumstances prevailing it would be surprising if he did not and despite my reservations concerning some of his evidence, I am disposed to accept that he at least thought about the issue.

12 February 1992– Police Station

362 Although the Plaintiff alleges he was assaulted by Sergeant Hillier, no such complaint is made in the Statement of Claim, so I do not need to make any findings in that regard. I otherwise accept the Plaintiff’s account of events there and have no doubt that the experience was greatly humiliating to him.

363 Why a file relating to the Plaintiff was at Campbelltown Police Station as Sergeant Hillier said in evidence, I find inexplicable. It is impossible to believe it was obtained from elsewhere during the time the Plaintiff was at the Station. There is no reason to think it related to events at Menindee unless one takes the further step, which I am unwilling to do, to think that such a file was circulated to all police stations. Of course as the Plaintiff had served at Campbelltown prior to going to Menindee, it may be that the file was one relating to that earlier service. Be that as it may, I am not persuaded its presence was any indication of impropriety or caused or contributed to any damage to the Plaintiff.

The Pleadings

364 Before I turn to the conclusions that seem to me to flow from the matters to which I have referred, it is appropriate to reflect on the Statement of Claim. In the final version of that document, filed on 6 November 2007, the Plaintiff asserted:-

(i) his employment as a police officer by the Defendant and that he was a contributor for superannuation pursuant to the New South Wales Police Regulation (Superannuation) Act 1906, (para. 2)

(ii) On 28 August 1991 he reported his suspicions concerning another police officer, (para 4)

(iii) On 28 October 1991, he submitted a confidential report in respect of those matters, (para 5)

(iv) The contents of the said confidential report were made known by employees of the Defendant to the said officer and colleagues of the officer and the Plaintiff, (para 5(a))

(v) In consequence, the Defendant caused the Plaintiff to suffer in various ways including victimisation, harassment, assault and ridicule, (para 6)

Under the heading, “Statutory Obligation”

(vi) That the Plaintiff was required to report conduct by a police officer alleged to constitute a criminal offence or other misconduct. (para 7)

(vii) The Defendant knew or ought to have known of the consequences that could befall the Plaintiff upon compliance with that obligation “were its contents to be disclosed to the Plaintiff’s colleagues. (para 8)

(viii) The Defendant owed the Plaintiff a duty of care to do various things including (and I abbreviate):-

(a) ....

(b) ....

(c) Maintain an environment where the Plaintiff would receive support including providing the Plaintiff with acknowledgement as to the proprietary of his actions if he complied with the obligation.

(d) Ensure the welfare of the Plaintiff at work if he complied with the obligation, pursuant to the Occupational Health and Safety Act 1983, s15(1).

(e) Ensure that the Plaintiff was provided with a working environment that was safe, ..., pursuant to s15(2)(e) of the Occupational Health and Safety Act...

(f) ....

(g) Ensure the Plaintiff was removed from Menindee so as to avoid him having further direct contact with the offending officer.

(h) Ensure there was a proper form of pro-active welfare service.

(i) Ensure the provision of regular services of a police psychologist to assist the Plaintiff...

(j) Ensure that appropriate action be taken to recognise the threat of mental injury suffered by the Plaintiff in consequence of his duties.

(k) Appreciate that the Plaintiff was in need of welfare assistance.

(l) Ensure that proper and effective action be taken to protect the Plaintiff from those police officers engaged in the activity pleaded in paragraph 6(a-l) hereof.

(m) Ensure compliance with police circulars of 30 May 1983 and 15 August 1985.

(n) Ensure that the Plaintiff was provided with proper and adequate support and assistance whilst he remained on sick report.

(o) ...

(p) Ensure compliance with regulations 9(8), 9(9) and 32 of the Police Service Regulation.

(q) Ensure that the Plaintiff was provided with prompt medical assistance when required.

(r) Ensure that the Plaintiff’s complaint of ill treatment by other police officers be properly investigated and acted upon; and

(s) Ensure compliance with regulation 32 of the Police Service Regulation.

- (para 9)

(ix) The Defendant breached its duty of care by failing to do those things (para 10).

Alternatively,

(x) There were terms of the Plaintiff’s contract of employment that the Defendant would do the things set out in sub-paragraphs (viii)(a) – (s) above (para 11).

(xi) The Defendant failed to implement each of those terms (para 11).

365 There followed paragraphs relating to the events of 12 February 1992 and alleging damage. The events of the day were said to found a cause of action in assault and the arrest and detention of the Plaintiff were also said to amount to a breach of duty by reason of a failure to ensure compliance with the Commissioner’s Instructions 37.01 and 155.2.04, and Regulation 9(8) and 9(9) of the Police Service Regulation and that reasonable care, skill and competence was exercised by police at the time of the Plaintiff’s arrest.

366 Reliance on the sub-paragraphs omitted from the above list was abandoned during the course of address.

367 In his submissions in opposition to the claim, counsel for the Defendant drew attention to the terms of paragraph 5a of the Statement of Claim, pointing out that in that paragraph what is said to have been made known were the contents of the confidential report made on or about 28 October and no complaint was there made concerning the report that had been made on or about 28 August. In these circumstances, the Defendant submitted the Plaintiff was not entitled to rely, as it sought to do, on publication of the fact that the Plaintiff had made oral report on 28 August.

368 The Defendant further submitted that there was no evidence that the contents of the 28 October report were ever disclosed inappropriately or other than in accordance with the permission of Inspector Grace or the a relevant statutory provisions governing complaints and no evidence that those contents were disclosed to Constable Strong.

369 The proposition the subject of the last sentence in the immediately preceding paragraph is correct. In that connection it is appropriate to point out that Inspector Grace gave no evidence that he had authorised the release of the aide-memoire to Inspector Glasheen or Constable Arender but said that on receipt of the document he had supplied it to the Ombudsman and to the Commander of the Internal Affairs Branch in Sydney. That he was required to pass it on to the Officer-in-Charge of the Internal Affairs Branch is made clear by Regulation 31 of the Police Service Regulation 1990 and although I was not taken to the statutory provisions that required communication to the Ombudsman, it seems to have been common ground that that Office had a relevant interest. The tenor of Inspector Grace’s evidence was that his communication of the aide-memoire was required and there was no challenge to this.

370 The Defendant’s argument based on paragraph 5a of the Statement of Claim, is obviously correct. However the Plaintiff’s complaint about publication of the oral report of 28 August is one that arises also under sub-paragraph (l) above. That sub-paragraph does refer back to paragraph 6 and that in turn commences with the words, “in consequence”. Those words immediately follow paragraph 5a but were in the original Statement of Claim and could not reasonably have been regarded then as limited to the 28 October aide-memoire to the exclusion of the 28 August oral report. Clearer words than are in the current Statement of Claim would be needed before it should be treated as abandoning the claim based on the oral 28 August complaint.

371 It is also clear, despite the pleading, that a deal of the evidence adduced was directed to events prior to the making of the 28 October aide-memoire or so shortly thereafter that it could not reasonably be thought that they were a result of publication of that report. I refer in this connection to the evidence of Sergeant Burrows and of the events the subject of complaint against the Plaintiff and concerning the making of those complaints. The topic of those complaints was one canvassed in the proceedings before Judge Geraghty and in respect of which his Honour said that, “it is difficult to avoid the conclusion that the complaints against (the Plaintiff) were a ham-fisted attempt to discredit him ...”. Given the nature of the case and the time spent in it, it would in the circumstances be a miscarriage of justice if the Plaintiff were not allowed to rely on a loss of confidentiality of, and events following, the oral report. While I appreciate that the Plaintiff has not to this time sought to amend, his counsel preferring to deny the plain effect of the pleading, considerations such as those referred to in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 lead to the conclusion that the Plaintiff should be allowed to rely on the matters in connection with the non-“Statutory obligation” part of his claim. See also Tabet, by his tutor Shiebam v Mansour [2005] NSWSC 908. I am satisfied that the Defendant is not, in a relevant sense, prejudiced by this approach.

372 The Defendant also submitted that any recognition of the duties of care of the nature and with the specificity set forth in paragraph 9 of the Statement of Claim would impermissibly make the law incoherent and that the duty it owed the Plaintiff was akin to that of an employer’s to take reasonable care for the safety of the Plaintiff by instituting a safe system of work, subject however to constraints arising from statutory provisions. Sullivan v Moody [2001] 207 CLR 562 was cited for the first of these propositions, Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1 at [276] was cited for the second, and State of New South Wales v Fahy [2007] HCA 20 was cited for the qualification concerning statutory provisions.

373 Save that I would prefer to express the Defendant’s duty of care as one to avoid unnecessary risk of injury – the terminology used in Crimmins v Stevedoring Industry Finance Committee at [276] - the Defendant’s submission is in my view correct and accordingly I intend to proceed on that basis. That said, the particularity in the expression of the duties for which the Plaintiff contends does assist in directing attention to the possible content of the duty to take reasonable care in this case.

Conclusions

374 The evidence of the Plaintiff, his wife and the Defendant’s Psychology Section records, supported by the Plaintiff’s account as recorded by some of the doctors, makes it clear that prior to moving to Menindee, the Plaintiff had suffered significant emotional trauma in consequence of his service in the Police Force and that at the time of the move, the Plaintiff was in a somewhat troubled state. His conviction of assaulting Dookie Hillier, the consequential transfer from Tallimba, and the Scott Yuill incident and its aftermath were the principal, but not the only occasioning or precipitating factors in this regard. Counsel for the plaintiff disclaimed any suggestion that the Defendant did anything wrong by way of breaching a duty of care to put the Plaintiff in the condition he was then in and in any event, I am satisfied that the sorts of experiences the Plaintiff had suffered to that time were but normal, if regrettable, aspects of service in the Police Force.

375 Nevertheless, the report of 5 February 1991 in Exhibit K from Superintendent Care saying that the Plaintiff had performed his duties in a “most competent and professional manner” since arriving at Newtown indicates that, at least to that time, these matters had not led to any, certainly any significant, decrease in the Plaintiff’s performance as a police officer.

376 That said, the collection of documents from the Psychology Section file, Exhibit N, makes it clear that the Defendant was on notice that the Plaintiff was troubled and somewhat vulnerable to the impact of any significant additional stress.

377 That reporting on misconduct by a fellow officer could be the catalyst for the imposition of additional stress is, and was at the relevant time, notorious. Regulation 32 of the Police Service Regulations is a recognition of the possibility which also finds acknowledgment in documents contained in Exhibit O – see for example Section 103 of the Annual Report of the Ombudsman for the year ended 30 June 1985, a section which deals with police complaints to the Ombudsman concerning other police. The matter finds further recognition in the promises of confidentiality that the Plaintiff received and evidence in the case as to the importance of confidentiality.

378 Simple human experience or common sense, the terms of regulation 32 of the Police Service Regulations, documents in Exhibit O and the opinion evidence from some of the senior police officers who gave evidence recognise a number of matters that are relevant to the issue of what reasonable care required in this case. Those matters include:-

A potential for retaliation against or victimisation of one police officer who lodges a complaint against another;

That persons against whom complaints are made are likely to resent the fact of the complaint, and are likely to retaliate;

That such retaliation or victimisation may be effected not only by the person the subject of complaint but by other members of the Police Force;

It is generally desirable that a complainant’s identity be concealed as long as possible, inter alia to reduce the risk and magnitude of any retaliation (albeit there may be occasions and circumstances where concealment is not possible);

That retaliation or victimisation might well have serious detrimental consequences to a complainant, in terms of his employment and advancement in the Police Force, his happiness and satisfaction in his job and in terms of his physical and psychological health.

379 It is impossible to avoid the conclusion that the Defendant and those to whom the Plaintiff made reports concerning Constable Strong must at all relevant times have known of these matters.

380 Relevant also to the existence and extent of any duty owed by the Defendant to the Plaintiff is the recognition of the stressful nature of the occupation of a police officer, and its potential impact on some members of the Police Force, implicit in the existence of the Psychology Section and Welfare Unit. It is a matter of ordinary human experience or perhaps notorious that police officers as a group are exposed to stressors, situations and risks well outside those to which most members of the public are subject, that many people are vulnerable to being injured by such matters and that psychological or other counselling is calculated to reduce the impact on many individuals of such matters.

381 I have found that the Plaintiff was assured on 28 August that his complaint would be kept confidential. However, it is important to reflect on the limited operation that could be given to that statement if the matters complained of by the Plaintiff were to be investigated. Certainly, the statement extended to no express publication (except to any to whom Sergeant Morton and Inspector Shipp were obliged to report) of the Plaintiff as the source of the complaint and to the doing of whatever could reasonably be done to keep his involvement secret. However, the statement cannot be given an operation that precluded investigation with whatever flowed from an investigation.

382 It is appropriate to reflect also on at least some of the options available to Inspector Shipp or any other investigator after receiving information from the Plaintiff on 28 August. Although it appears that inquiries were made of Constable Blayden at least concerning the marijuana allegation, against the possibility that he was complicit in or at least neglectful of his duties in not himself raising or dealing with the matters complained of, Constable Blayden was not the most obvious person for Inspector Shipp or any other investigator to give the prime investigative task to.

383 However, the task given to Constable Blayden was limited, of itself not clearly indicative of any failing on his part, and I am unable to conclude that there was any breach of duty by the Defendant in the request to Constable Blayden. Nor does the evidence establish that in concluding that Constable Strong was not a marijuana user Constable Blayden was, in any presently relevant sense, at fault and to the extent to which Constable Blayden was not given the task of investigating, what were the options?

384 Any surreptitious investigation would be likely to have required any investigators to be in Menindee for some considerable time to meld into the community. Were any investigators to disclose, or make apparent, their role, it would be virtually certain that any confidentiality would be lost. One only has to consider the names and description of most of those mentioned in the Plaintiff’s aide-memoire of 28 October to make that apparent.

385 It is also appropriate to reflect on what form any investigation should take. It is all very well to expect, as the Plaintiff said he contemplated, that Internal Affairs or someone would investigate the matters but short of making a canvass of Menindee residents, who were investigators to talk to concerning those matters where names were not supplied? No doubt a search of records would have revealed who Constable Strong had charged and these persons could then be interviewed to see if they had been verballed but it was not likely that he drove the police vehicle so often while under the influence that all, or even most, of the people in Menindee would be able to give evidence of the matter. Those with whom Constable Strong was said to smoke marijuana would not necessarily be disposed to admit the fact. Were investigators to interview all the owners of male dogs to see who had been threatened by Constable Strong?

386 It follows from my findings as to the meeting of 28 August that a number of the Plaintiff’s complaints concerning that meeting are not made out. However it should have been obvious to the Plaintiff and, given their experience, more so to Sergeant Morton and Inspector Shipp that any significant investigation of the Plaintiff’s complaints in a small town such as Menindee would inevitably come to the attention of Constable Strong and, given the Plaintiff’s recent arrival, lead to the Plaintiff being, in the minds of Constable Strong and any other person who heard about an investigation, the probable origin of complaint. Such an inference would be even more likely in the case of anyone aware of the Plaintiff’s dislike of Constable Strong as obviously Constable Blayden was and Mrs Papaleuca became or if any investigation extended to events that had involved both the Plaintiff and Constable Strong, such as the possibility of an assault on Mr Graham. It is not without significance in this connection that following receipt of an instruction to investigate Constable Strong’s use of marijuana Constable Blayden suspected the Plaintiff to have been the source of complaint. Inspector Allen’s evidence that by October it would probably have been common knowledge that the Plaintiff had complained about Constable Strong argues in the same direction.

387 It follows that in practical terms, the promise of confidentiality should not have been made. It was calculated to give the Plaintiff a sense of comfort that, if any significant investigation were conducted, was bound to be dashed.

388 It is impossible to believe that Constable Strong would not have resented the Plaintiff’s complaint. The size of the police presence in Menindee meant that the officers there would inevitably have to work closely together at times and the tension and lack of trust that human experience indicates as a very likely, if not inevitable, consequence of the Plaintiff’s complaint once that complaint became known to Constable Strong leads to the result that they could not reasonably be expected to continue to work together. Once the Plaintiff made the complaint he did on 28 August, and it was considered worth more than the most cursory of investigations, it was inevitable that either the Plaintiff or Constable Strong would have to be moved albeit, depending on how soon and with what intensity any investigation developed and what leave periods the police officers had, the move might be able to be postponed for a time.

389 In that the Plaintiff’s complaint and his election to make that complaint to police at Broken Hill amounted to an implicit criticism of Constable Blayden and indicated an unwillingness to rely on the latter, Constable Blayden also had cause to resent the Plaintiff’s complaint. It would not be surprising if this resulted in a break down in relations between the Plaintiff and Constable Blayden although I would not infer this to be necessarily so likely or so serious that one could, in August 1991, make the same prediction as that involving the Plaintiff and Constable Strong.

390 It further seems to me that the inevitability of a move of the Plaintiff or Constable Strong was so obvious that all three, the Plaintiff, Sergeant Morton and Inspector Shipp should have been aware of it and, against the possibility that the Plaintiff was not, Sergeant Morton, Inspector Shipp or Inspector Allen should, on or after 28 August, but in any event before there was a chance that the Plaintiff would be victimised, have warned him of the fact. While of course such a warning might itself be construed as victimisation or punishment for the Plaintiff’s complaint, it would have the advantage of reducing the risk that any move of the Plaintiff later would itself be regarded as victimisation and the advantage of dealing with the matter at a time when, if emotion concerning the matter was ever to enter into the Plaintiff’s mind, that emotion was likely to be least.

391 One complaint that was made on the Plaintiff’s behalf was that one or more of Sergeant Morton, Inspector Shipp and Inspector Allen conducted their own investigations in lieu of passing the Plaintiff’s complaint on to Internal Affairs for it to be investigated by them. The submission does not recognise that the fact that Sergeant Borrows’ report bore an Internal Affairs stamp indicates that the complaint was passed on although the fact that he was conducting preliminary enquires when he was suggests that the complaint was not passed on promptly as regulation 31 of the police Service Regulations required. However, none of the evidence persuades me that the officers mentioned were not entitled to conduct at least some investigations of their own, particularly in circumstances where there were grounds for being sceptical of the Plaintiff’s complaints. In any event, any such investigation of itself breached no obligation any of these officers, or the Defendant, owed to the Plaintiff. And although I find it odd that Sergeant Burrows spoke to Constable Strong in the course of “preliminary investigations”, it was not suggested to Inspector Allen or Sergeant Burrows that this was done by way of victimisation of the Plaintiff or in retaliation for him complaining.

392 The Plaintiff also made complaint as to the quality or extent of the investigation of his complaints. Although as I have indicated the evidence in this regard was not comprehensive or definitive, when regard is had to the content of Sergeant Burrows’ report, and the apparent extent of the investigation of Inspector Glasheen and Constable Arender, it is difficult to avoid the conclusion that no attempt was made to investigate most of the Plaintiff’s specific complaints.

393 Nevertheless I am satisfied that in the conduct of, or any inadequacy in, the investigation of the Plaintiff’s complaint the Defendant breached no obligation it owed to the Plaintiff. Indeed, probably more accurately, when regard is had to the functions of the police force and the potential for competing considerations to arise in connection with any actual or possible investigation, I am not satisfied that the Defendant owed a duty to the Plaintiff as to whether it investigated his complaint or as to the way any such investigation was conducted. The mere fact that the Defendant may have had a duty to investigate complaints against police officers does not mean that that duty was owed to individual members of the public or any other officer who made the complaint. After all the Defendant’s duty to take reasonable care for the safety of, or to avoid unnecessary risks of injury to, other officers could be fulfilled in ways that did not impact on any investigation-related decision. Regulation 32 of the Police Service Regulations forbad victimisation and that protection, however inadequate it might on occasions be, argues against taking an investigation pursuant to a complaint by a police officer outside the usual rule that no duty of care is owed by public officials conducting an investigation as part of their duties – see Cran v State of New South Wales [2004] NSWCA 92.

394 It is of course apparent that Sergeant Burrows’ actions on 24 October were calculated to make Constable Strong aware that complaint had been made about him. Indeed there is much to be said for the inference – which I draw - that they were designed to do so. Furthermore, both for the reasons I have advanced above and because of the events of 30 October to 1 November, I would infer that no later than 24 October Constable Strong believed that the Plaintiff was responsible for complaints against him.

395 I have already indicated that I regard the complaints against the Plaintiff made on or about 1 November as harassment (or victimisation) flowing in consequence of the Plaintiff’s complaint against Constable Strong. Certainly they would have appeared this way to the Plaintiff. This last observation may also be made in respect of the investigation of those complaints by Inspector Glasheem and Constable Arender on 28 and 29 November. No doubt in the Plaintiff’s mind adding insult to injury in this connection was the speed with which complaints against him, about events of 5, 6 and 23 October, were investigated compared with what seemed to have been the situation concerning the complaints he made. I reject Sergeant Morton’s explanation for the difference.

396 I may add, though in light of earlier comments it is not necessary that I do so that there is no evidence indicating how quickly investigations of matters such as those the subject of the Plaintiff’s complaint on 28 August are generally made or what factors may have led to Sergeant Burrows’ enquiries occurring on 24 October rather than earlier and though such information would be within the knowledge of the Defendant, given the enquires that were made, I am not persuaded that in not pursuing its investigations further or faster, the Defendant breached any duty to the Plaintiff during this period. A fortiori is this so when regard is had to the desirability for the least possible loss of confidentiality.

397 From 28 November things deteriorated. The Plaintiff suffered the knowledge of complaints having been made against him and that his own complaints were likely to be dismissed. Relations among the police at Menindee became very strained. The Plaintiff (and Constable Strong) suffered the indignity of being required to be psychologically assessed. The Plaintiff was judged by Kate Wikner to have made false allegations. He again had to deal with, in his eyes, unreasonable conduct by fellow police and the posting to Menindee that he had welcomed was to be terminated.

398 One of the things the Plaintiff said the Defendant should have done was to ensure he was removed from Menindee so as to avoid him having further contact with Constable Strong. No time is specified as to when this should have occurred and of course the Plaintiff was removed soon after 31 December.

399 I see no reason why the Plaintiff should have been removed as early as his complaint on 28 August but it seems to me that the Defendant should, in addition to pointing out to the Plaintiff that he or Constable Strong would have to be moved once significant investigation started, expressly given the Plaintiff the option of being moved as soon as he wished. While the Defendant could not reasonably have been expected to move Constable Strong until investigations were well advanced and conclusions adverse to Constable Strong reached, reasonable care towards the Plaintiff meant that he should not have been exposed to any, certainly any significant, victimisation or harassment. A fortiori is this so when regard is had to his vulnerability to which I have referred.

400 Of course, any such victimisation or harassment could have been avoided by moving the Plaintiff without him being given any option but such a course itself would be calculated to operate as a punishment if he, or any other complainant, wanted to stay where they were and giving the option was thus a more reasonable course.

401 In concluding that reasonable care involved giving the Plaintiff an option to move from Menindee, I have taken into account the fact that victimisation or harassment for “dobbing” is liable to take a form of individual actions, some in themselves minor although in totality significant carried out in circumstances where they are not readily provable and any investigation is likely to involve more “dobbing” or at least the stress of whether to again complain or not, and word against word.

402 In reaching the conclusion that the Plaintiff should have been given this option, I do not ignore an argument that such an approach might or would interfere with the organisation of the police force and the allocation of personnel wherever the Commissioner wished, and effectively enable any officer to avoid remaining at a posting he or she did not like. I accept that there is at least a theoretical possibility of an unattractive posting being brought to an end this way but the consequences to an officer’s career of making, in order to secure a transfer, an unjustified complaint, having it investigated, and probably dismissed lead me to the view that the likelihood of such complaints having a significant impact on the Police Force organisation is so low that the argument should not be allowed to govern the conclusion.

403 Other complaints pursued in counsel’s submissions as indicating a want of care were:

(i) Rostering the Plaintiff with Constable Strong on 31 December 1991;

(ii) Humiliating the Plaintiff by removing his appointments and cutting off his telephone;

(iii) Sending him to Liverpool Police Station (where the Scott Yule incident occurred) and then Macquarie Fields next door; and

(iv) Failing to prevent the Plaintiff’s reaction when exposed to careless court attendance requirement taken by the Plaintiff to be an affront to his professionalism and performance (of which the Defendant had been warned by Dr Spragg in his report of 18 February 1992);

(v) Subjecting the Plaintiff to unreasonable arrest and excessive force and treatment on 12 February 1992;

(vi) Failing to take special precautions or steps to protect the Plaintiff with specially supervised duties;

(vii) The Defendant did not provide and ensure that the Plaintiff received proactive medical and psychological treatment in Broken Hill and then in Sydney (merely) making available at the Plaintiff’s option access to Sydney based services where the Plaintiff was not liked and which were apparently diagnostic only;

(viii) In August 1992, “washing its hands of” the Plaintiff as unfit for rehabilitation;

(ix) In November 1992 discharging the Plaintiff as medically unfit on grounds which did not recognise his psychiatric condition (notwithstanding Dr Spragg’s diagnoses of 18 February and August 1992;

404 I have already said that I am not persuaded that the Plaintiff’s roster was changed so as to place him on duty with Constable Strong on 31 December 1991.

405 I see nothing for which the Defendant should be criticised in the removal of the Plaintiff’s appointments. Once Constable Blayden was informed that the Plaintiff was too stressed to be able to work, common sense demanded the removal of the Plaintiff’s revolver for which, if not working he had no legitimate need. The latter proposition no doubt applied to other or the appointments and the evidence leads to the conclusion that the removal of the appointments was standard practice. The fact that removal may not have occurred on prior occasions when the Plaintiff was on leave or sick does not lead to the conclusion that removal in December 1991 was unreasonable.

406 There having been no evidence to explain or justify these matters, the cutting off of the Plaintiff’s telephone, without notice or explanation, the prohibition on the Plaintiff using the Menindee station computer, and then the requirement that his use be supervised by Constable Strong, and Constable Strong’s mocking of the Plaintiff were also in my judgment unreasonable. Indeed, in light of the absence of evidence to which I have referred I regard them as unjustified harassment.

407 In light of the police psychology section’s note indicating that the Plaintiff a year afterwards was still greatly troubled by memories of the Scott Yuill traumatic incident, it was unreasonable of the Defendant to decide to send the Plaintiff to Liverpool Police Station and to inform the Plaintiff that was the place to which he was being transferred.

408 There is, I think, no direct evidence as to when it was that the Plaintiff was informed his transfer would be to Macquarie Fields Police Station instead although Dr Spragg’s report indicates that it was before he saw the Plaintiff on 8 January. The speed with which this change occurred suggests that there was no particular reason for selecting Liverpool in the first place and in the circumstances I regard the informing of the Plaintiff that he was to be transferred to Liverpool as a breach of the Defendant’s duty to him. There is no evidence that persuades me that the breach was deliberate and intended as harassment.

409 I see no grounds for upholding the complaint referred to in sub-paragraph (iv). There is no evidence that the Defendant had any knowledge of the terms of the 12 February communication to the effect that the Plaintiff was “written out” of the case or opportunity before the Plaintiff’s arrest to prevent the Plaintiff’s reaction or anything to warn the Defendant that the Plaintiff’s reaction might be as it was. Nor is there any evidence that the Defendant had cause to think that the Plaintiff attached any particular significance to involvement in the case against Mr Botswain.

410 So far as sub-paragraph (v) is concerned, there was not in the actions of Constables Dimatteo or Fredericks a breach of any duty of care that the Defendant owed to the Plaintiff. Certainly the Defendant is vicariously liable for any assault that these persons committed but it was under no duty to tell all police officers in New South Wales of the Plaintiff’s situation or of a need to be especially careful in their dealings with him or to arm them with a photograph of the Plaintiff in case they came across him. I am not persuaded that the actions of Constable Dimatteo and Fredericks were inspired by any prior knowledge of the Plaintiff or of his complaints against Constable Strong.

411 The considerations that inspired the decisions in Sullivan v Moody (2001) 207 CLR 567, Cran v State of New South Wales [2004] NSWCA 92 and State of New South Wales v Klein [2006] NSWCA 295 also lead to the conclusion that no duty of care or right of action arises because of the terms of the Commissioner’s Instructions 37.01 and 155.2.04, or regulation 9(8) and 9(9) of the Police Service Regulation and that there is no duty to a person being arrested to exercise reasonable care, skill and competence in that exercise. Of course if the arrest is not authorised, the liability for wrongful imprisonment and/or for assault is likely to exist as may the latter if the force used clearly goes beyond that reasonably required.

412 I do not uphold the complaint in sub-paragraph (vi). Assistant Commissioner Peate had offered the Plaintiff a special form of duty and the Plaintiff had declined it. Neither Dr Sprod or Dr Spragg suggested that the Plaintiff should be allocated specially supervised duties and, although Dr Milton recommended transfer to a one-man station for a time, there is no evidence that at any relevant time so far as this complaint is concerned, such a posting was available.

413 The Plaintiff also declined the possibility of a non-operational position when Dr McGinty raised the topic.

414 No doubt it can be argued that there were a number of matters that should have alerted the Defendant or the Plaintiff’s superiors to the need for the treatment of the nature of that referred to in the complaint in sub-paragraph (vii), including:-

The indications in the notes on the Psychology Section file indicating the Plaintiff was in a somewhat vulnerable state at the time he went to Menindee;

The stress apparent from the note of 6 September in that file;

The dismissal of his complaints against Constable Strong,

The terms of Constable Blayden’s report of 1 December, including the statement that the Plaintiff had some form of mental disorder;

The fact of the Plaintiff being sent to Sydney for psychological testing;

The termination of the Plaintiff’s service in Menindee; and

The remarks of Superintendent Allen when informing the Plaintiff of that termination, remarks that were calculated to depress and damage significantly the self esteem of anyone to whom they were addressed.

415 On the other hand, in none of the medical reports between 1 December 1991 and 12 February 1992 is it suggested that the Plaintiff should have any of the treatment referred to in sub-paragraph (vii). Dr Milton in his report of 18 December was rather positive about the Plaintiff’s mental state.

416 Dr Sprod’s certificate of 31 December, when corrected, informed the Defendant that the Plaintiff was unfit for work for 1 month, that the Plaintiff was suffering from stress, and in the sections for specification of “Further action required” and “Specialised rehabilitation required” said no more than “should be allowed to travel and relax during time off”. Thus this certificate did not suggest any further medical or psychological treatment was required, notwithstanding the form of certificate invited comment of such a nature. The third report in this period was that of Dr Spragg and he also did not suggest that the Plaintiff needed any such treatment. In these circumstances, I reject also so much of the complaint in sub-paragraph (vii) as relates to Broken Hill. I should add that there was no evidence of the practicability of providing treatment in Broken Hill of the nature of that claimed.

417 The Sydney component of the complaint in paragraph (vii) is affected by similar considerations as relate of sub-paragraph (viii) although it might also be noted that there was no evidence that the Sydney based services were diagnostic only.

418 In support of sub-paragraphs (viii) and (ix), counsel for the Plaintiff drew attention to a number of documents prepared by officers of the Defendant including that of 5 August from the Senior Rehabilitation Officer, and that of 27 February signed by Mr Doak and to the fact that it was Dr McGinty who initiated the Plaintiff’s discharge. However, there also has to be taken into account in relation to these complaints that from early January until mid July 1992, the Plaintiff was being seen regularly by Dr Spragg, who never suggested that rehabilitation within the Police Service was a viable option, who wrote to Dr McGinty in July saying that he saw little hope of rehabilitation of the Plaintiff in the Service and who in August told Dr McGinty that the Plaintiff’s condition had deteriorated and advised his discharge.

419 Dr McGinty’s own observations of the Plaintiff, recorded in notes to which I have referred are also relevant. There is no evidence to support any thought that they are not accurate or that, in light of them and the other information that the Defendant had, it was unreasonable or breached any duty of care, in leaving the Plaintiff’s treatment to Dr Spragg or in not taking the initiative in deciding what care, treatment or rehabilitation the Plaintiff should have. I would not so conclude in the absence of such evidence. The complaints contained in so much of sub-paragraph (vii) as related to Sydney and in sub-paragraph (viii) are not made out.

420 It is not clear what is meant by sub-paragraph (ix). The Plaintiff was discharged on the ground he was unfit for service having been so certified by a certificate issued by the Police Superannuation Advisory Committee on the ground that he suffered a “severe personality disorder with latent or chronic schizophrenia”, a conclusion that echoed the then recently expressed opinions of Dr Harley and Dr Bell. Dr Spragg’s diagnoses of February and August 1992 were that the Plaintiff was honest, conscientious and obsessional, that he had been let down by the Police Service that was supporting persons who had been guilty of misconduct and this amounted to, or was perceived by the Plaintiff to be, such a loss of control as to lead to a catastrophic reaction – one that could only be cured by a change to the Police Service ethos.

421 As between the Plaintiff and the Defendant, the decision of Judge Geraghty means that Drs Harley and Bell were wrong but in the circumstances prevailing at the time of the Plaintiff’s discharge, it is impossible to say that there was some breach of duty or misconduct by the Defendant in following the opinions expressed in their reports.

422 This conclusion makes it unnecessary to pursue the fact that in December 1992, after the Plaintiff’s discharge, Dr Spragg expressed a view as to the Plaintiff’s condition, different at least in emphasis, from that expressed in February and August and also what would have been required of the Defendant to give effect or weight to Dr Spragg’s views so far as they had been expressed at the time of the Plaintiff’s discharge.

423 Complaint was also made that the Plaintiff was interviewed by the Internal Affairs Officers in Menindee – a location calculated to bring to the attention of other police the fact of the Plaintiff having complained. I agree that the interviewing of the Plaintiff at Menindee was likely to have this effect but so did so many other events, such as Sergeant Burrows’ enquiries and interviews with Mr and Mrs Papalouca, that I am confident the choice of location for the interview had no operative effect so far as Constables Blayden and Strong were concerned. On the other hand, it does seem likely that the fact the interview occurred in Menindee strengthened the Plaintiff’s view that the Police Force had broken its obligations to him by way of confidentiality, absence of victimisation and (favourable) recognition.

424 In the above discussion, I have not sought to deal with the various allegations of breach of the Defendant’s duty of care or failures seriatim. What I have said is however sufficient to indicate that I have considered them. Summarising the above, many of the Plaintiff’s complaints concerning breach of the Defendant’s duty of care are not made out although I am satisfied that some are, viz. –

Not warning the Plaintiff that he or Constable Strong would have to be moved;

Not giving the Plaintiff the option of moving when he wished;

In effect informing Constable Strong on 24 October of the complaints against him (prior to any significant investigation of those complaints);

Victimisation or harassment of the Plaintiff -

In the making of the complaints on and around 1 November 1991 (and the inevitable even if appropriate investigation of them);

In cutting off of the Plaintiff’s telephone connection without warning or prior explanation;

In prohibiting the Plaintiff using the Menindee station computer, and then requiring that his use be supervised by Constable Strong;

Constable Strong’s mocking of the Plaintiff when the latter’s appointments were returned to him.

Deciding to transfer the Plaintiff to Liverpool Police Station and on or about 30 December 1991 informing him to that effect.

425 There is another facet of events that also bears comment. In August and October the Plaintiff had made complaint about Constable Strong. At each time the Plaintiff was assured of confidentiality. This did not occur and the Plaintiff was transferred away in circumstances where it must have appeared to him both that no substantial investigation of his complaints had occurred and he was suffering because he had made complaint. Particularly, but not exclusively, because of his vulnerability of which the Defendant was aware, it seems to me that the Defendant also breached its duty of care by not taking far more steps than it did to minimise the possibility of a severe adverse psychological reaction to events. The risk was clearly foreseeable, by no means insignificant, and one that required no great expense, difficulty or inconvenience to minimise.

426 Actions that could have been taken include giving the Plaintiff the warning or option I have mentioned and transferring the Plaintiff to another station, possibly in the country, calculated to minimise in the eyes of the Plaintiff the appearance that he was being victimised.

427 Complaint was also made that Inspector Allen’s remarks to the Plaintiff on 30 December did not fairly reflect, and were indeed contrary to, Dr Milton’s assessment made some 2 weeks earlier. The complaint is clearly made out.

428 There is a deal to be said for the view that other remarks to the effect that the people of Menindee did not like the Plaintiff and he did not fit in were unfair. They did not fairly reflect what persons who spoke to Sergeant Burrow said and of which Inspector Allen must have been aware. They did not reflect what Mr Poulos told Constable Arender and of which it is likely Inspector Allen was also aware. The reports or references that the Plaintiff had from persons at Tallimba also indicate that some of Inspector Allen’s remarks, in their generality, were unjustified.

429 Of course Inspector Allen had other information. He had Constable Blayden’s report of 1 December. He had discussed the position of the Plaintiff with Assistant Commissioner Peate who said that he had spoken to aboriginal elders in Menindee and they had reported that they were not happy with the Plaintiff. (This evidence was not adduced as evidence of the truth of its contents.) There is nothing to suggest that Inspector Allen was aware of the Tallimba references.

430 It was not suggested to Inspector Allen that he had deliberately distorted the information that he had available to him and in these circumstances, I would not be justified in finding that Inspector Allen’s actions or words on 30 December amounted to victimisation or harassment of the Plaintiff. However, his remarks were clearly calculated to greatly hurt and damage the Plaintiff’s self-esteem and, in light of the information Inspector Allen had, somewhat unfair.

431 Clearly Inspector Allen was entitled to tell the Plaintiff he was being transferred. Did his remarks otherwise amount to a breach of duty towards the Plaintiff? Certainly the Plaintiff’s vulnerability, known to the Defendant, together with the positive parts of the reports of Dr Milton and Sergeant Burrows, argues for the view that Inspector Allen should have been less demoralising than he was in his remarks. However, it is going a long way to hold that the duty an employer owes an employee is breached by the making of remarks, justified or unjustified, calculated to damage an employee’s self-esteem and, but for the extreme circumstances that prevailed in the Plaintiff’s case, I would be prepared to take that step.

432 However, the circumstances here were extreme. The Plaintiff had, and the Defendant was on notice that the Plaintiff had, the vulnerability to which I have referred. He had taken the notoriously difficult step of informing on a colleague. His complaint had been met with counter-complaints. There was conflict with the other police at Menindee. The Plaintiff was being removed from a position he had sought. To denigrate him in the way Inspector Allen did in the face of the reports of Dr Milton and that part of Sergeant Burrows’ report as indicated (to the extent that public opinion was sought), that the public had no concerns about the Plaintiff was a failure to avoid unnecessary risk of injury to the Plaintiff quite separate from Inspector Allen’s statement that the Plaintiff was to be transferred to Liverpool, and was also a breach of the Defendant’s duty of care towards the Plaintiff. In the circumstances, the fact that Constable Blayden may have held, and expressed to Inspector Allen, a different view, provides no justification for Inspector Allen saying what he did.

433 Detailed and thorough explanation and counselling rather than the demoralising remarks of Inspector Allen was other action that the Defendant could have taken to minimise the possibility of the Plaintiff suffering a severe adverse psychological reaction to events.

434 All of these breaches are encompassed within the fairly general allegations in the Amended Statement of Claim.

435 Of course the issue arises whether, if the Defendant had not been guilty of some of all of the breaches that I have identified, the Plaintiff would not have suffered the psychological or psychiatric condition he did. Clearly this is very much a matter of impression but when regard is had to the fact that the evidence, other than that of Constable Blayden, tends to indicate that the major deterioration in the Plaintiff seems to have firstly occurred after the 30 December meeting with Inspector Allen, the probabilities favour the Plaintiff.

436 The Plaintiff also claimed in contract although in practical terms this adds nothing to his claim in tort with which I have dealt.

Plaintiff’s Mental Condition

437 It was submitted on behalf of the Defendant that

(i) The Plaintiff did not give evidence supportive of the injuries and disabilities asserted in the Amended Statement of Claim and, absent such direct evidence, the Court should not find that the Plaintiff suffers from them;

(ii) The Court should find that the Plaintiff suffers from Temporal Lobe Epilepsy and that this pre-dated any service in the Police Force at Menindee; and

(iii) The Court should find in accordance with the opinions of Dr Bell and Mr Gubbay.

438 These submissions should be rejected. So far as the third is concerned, counsel for the Plaintiff submitted that the Defendant was estopped by the decision of Judge Geraghty from relying on the opinion of these persons. The issue before his Honour, who delivered his decision in September 1998 was whether the Plaintiff’s condition of being “unfit for police service due to an adjustment disorder with depressed and anxious moods” was the result of his police service. His Honour found that it was. The condition had been found by the Disputes Committee of the State Authorities Superannuation Board to exist and, although not in issue before his Honour, was a fundamental and common assumption in the proceedings before him.

439 As has been said, Mr Gubbay’s opinion, expressed in January 2003, was that the Plaintiff had largely if not completely feigned psychological disturbance, that he exhibited no evidence of disturbance of reasoning or judgment and his aberrant behaviour was functional.

440 Dr Bell’s opinion is somewhat more convoluted. Having in 1992 diagnosed the Plaintiff as suffering from a severe personality disorder and possibly chronic schizophrenia in consequence of genetic and early environmental factors, in 2006 he changed his mind concerning the topic of schizophrenia, adding that if “an adjustment disorder with depressed and anxious mood” be the agreed label for the Plaintiff, he still suffered from it, that the Plaintiff was disturbed to an extraordinary degree for a person with just a personality disorder, and behaved in the way he did to manipulate others rather than because he was psychotic.

441 Clearly this last part of Dr Bell’s opinion and Mr Gubbay’s views are inconsistent with the assumption in the proceedings before Judge Geraghty. There is no suggestion that there has been any relevant change to the Plaintiff’s condition between September 1998 and 2006. Is the Defendant estopped by Judge Geraghty’s decision from relying on these parts of the evidence of these two experts?

442 In my view it is not. The proceedings before Judge Geraghty were an appeal under s21(1)(b) of the Police Regulation (Superannuation) Act. There is nothing in that section, and no other provision to which I was taken, that allowed the Commissioner to challenge in those proceedings the earlier decision of the Disputes Committee of the State Superannuation Board. Hence, an assumption upon which Judge Geraghty proceeded but not something he decided cannot found an estoppel – Vitosh v Brisbane City Council (1955) 93 CLR 622 at 629.

443 Furthermore, nothing was put before me to indicate that the Disputes Committee of the State Superannuation Board was the type of tribunal whose decision can found an estoppel – see Pastas v Commonwealth (1966) 9 FLR 152.

444 But even though the Defendant is not estopped in this area, I would not accept the conclusions of these two experts. In my judgment, the Plaintiff’s conduct is not feigned but a product of a psychiatric or psychological condition. The vast majority of doctors’ opinions indicate the Plaintiff suffers from a severe psychological, psychiatric or mental condition. The evidence of his conduct over the years leads to the same conclusion and so does my own impression of him. To my mind, it is clear that the Plaintiff is angry, possibly the most bitter person I have come across, irrational in many, possibly most, of his judgments and sees almost every event that is not as he wishes it to be as someone else’s fault. It is probable that these feelings are due in part to the loss of the Plaintiff’s police career that I accept he valued very highly.

445 The Plaintiff’s contention that the Defendant is estopped from contending that the Plaintiff suffers from temporal lobe epilepsy and, though hardly pressed, that the Plaintiff’s condition is schizophrenia should also be rejected. But again in any event I am persuaded by the vast majority of the medical opinions that the Plaintiff does not suffer from either of these conditions.

446 The rejection of these arguments of the Defendant means that the precise label that is put on the Plaintiff’s severe psychiatric, psychological or mental condition is unimportant. It is clear from a consideration of the various reports that, for present purposes, there is not a great deal to choose between many of the descriptions given to the Plaintiff’s condition. The Campbelltown Hospital report of February 1992 signed Dr Jenkins and Dr Yeoh recorded a diagnosis of “Adjustment disorder with depressed mood”. Dr Spragg is of the view the Plaintiff suffers from an “adjustment disorder with depressed and anxious moods”. Dr Canaris prefers “post traumatic stress disorder” although he accepts that Dr Spragg’s diagnosis fits reasonably well provided it is recognised that the condition is “severe, chronic and disabling”. Dr Barclay thinks the Plaintiff suffers from “a reactive anxiety depression, complicated by dissociative states. Dr Cole favours “post traumatic stress disorder” though thinks the difference between him and Dr Spragg might be mainly semantics.

447 Dr Harley favours a severe personality disorder and latent, schizophrenia. Dr Petroff thinks the Plaintiff to be suffering from “a chronic adjustment disorder with depressed, anxious and angry moods.” Dr Bell accepts that the Plaintiff suffers from a severe personality disorder though behaves the way he does to manipulate rather than because he is psychotic.

448 Forced to choose, “an adjustment disorder with depressed and anxious moods” is by far the most supported description – and the one I find.

449 Counsel for the Plaintiff provided a detailed schedule of injuries and disabilities said to have been suffered by the Plaintiff, together with reference to the various reports where these matters were mentioned. The non-physical injuries so identified were:-

(i) Shock

(ii) Psychological injury

(iii) Psychiatric Injury

(iv) Nervous and/or anxiety state or condition

(v) Severe post traumatic stress disorder;

(vi) Reactive anxiety depression and dissociative states;

(vI) Adjustment disorder with depressed and anxious moods

450 I have held that the Plaintiff does not suffer from the conditions referred to in sub-paragraphs (v) and (vi). Medical reports indicated that he suffered shock. It follows from the findings I have made that I am satisfied that his injuries fall within the descriptions in sub-paragraphs (ii) to (iv).

451 I am also satisfied that the adjustment disorder and the other matters were contributed to in significant measure by the breaches of duty to which I have referred. Firstly, the breaches of duty to were of a nature likely to be stressful, more so to anyone who was the least vulnerable. Secondly, although I have found that the Plaintiff had some symptoms of stress earlier, I am satisfied that his condition deteriorated greatly at about the end of his time at Menindee. It is impossible to ignore the contrast between, on the one hand the appraisal reports up to 1990 and the letters from the citizens of Tallimba and on the other, the Plaintiff’s condition as evidenced by Constable Blayden’s remarks in his report of 1 December 1991 (and not earlier) to the effect that the Plaintiff suffered from some form of mental disorder, by Sergeant Wikner’s report that when he presented to her before seeing Dr Milton he was inappropriately hostile and aggressive, by what Dr Sprogg observed on 11 February 1992 and by the fact that, as I find, the Plaintiff was seriously contemplating suicide on 12 February. The conclusion is reinforced by the Plaintiff’s subsequent history although one must recognise that events of 12 February contributed to that history.

452 Of course I do not ignore the opinion of Dr Milton in his report of 18 December 1991. However, it is clear that the history on which he proceeded, including that the Plaintiff’s police service had been uneventful until the Hillier incident, was erroneous and in any event I find the other matters to which I have referred of more weight.

453 There were of course other causes of the Plaintiff’s condition. I have no doubt that two were the failure of the Police authorities to uphold the Plaintiff’s complaints against Constable Strong and a belief on the part of the Plaintiff that those complaints, both oral and written, had not been properly investigated. A third may have been the possession of the aide-memoire by Inspector Glasheen and the method of investigation by their attendance in Menindee. A fourth was what the Plaintiff was told by Inspector Allen on 30 December and the transfer from Menindee that followed. A fifth was a belief that he had been “written out” of the Boatswain case. Nevertheless, I am satisfied that the breaches to which I have referred remained as significant causes.

454 It must be recognised also that there is no direct evidence from the Plaintiff as to what he would have done had the breaches to which I have referred not occurred. Clearly some of these matters cannot be other than matters of inference but two on which evidence could have been given were what the Plaintiff would have done if Sergeant Morton and Inspector Shipp had warned the Plaintiff as I believe they should have and if the Plaintiff had been told that he could move from Menindee when he wished. In the circumstances of the case, I decline to draw any inference against the Plaintiff from his silence on these issues. The conclusion I have reached is that, given his obvious desire, at least until things started to go wrong, to be in Menindee, he would have stayed there until things became intolerable or he concluded that Constable Strong would not be moved. I am also of the view that with proper warning of what might happen, if or when he did move, it is unlikely that he would have suffered anything like the emotional state he did.

455 Of course, the fact that the Plaintiff had some weakness in his make up also contributed to the result but this does not operate to preclude him succeeding in his claim (whatever impact it may have on the question of damages).

Plaintiff’s Physical Injuries

456 In the detailed schedule of injuries and disabilities said to have been suffered by the Plaintiff the physical injuries claimed were described as:-

(vii) A neurological injury and

(vii) Injury to

(a) right upper limb

(b) neck

(c) right brachial plexus;

(d) right and left shoulders

(e) right and left wrists;

(f) ribs

(g) chest and right chest region

(h) right and left knees

(i) forehead

(j) back;, and

(viii) Consequential scarring and disfigurement

457 In addition the Plaintiff was said to have suffered upper, lower and middle trunk lesions, contusions and bruises and abrasions.

458 Consistently with my rejection or lack of persuasion concerning some of the Plaintiff’s evidence in respect of his physical injuries, I am not persuaded that on 12 February 1992 the Plaintiff suffered physical injuries beyond those recorded or indicated in the Campbelltown Hospital notes or in medical and the like reports very soon after that date.

459 The reports of Ms O’Neill and, to a lesser degree, those from Campbelltown Hospital persuade me that the Plaintiff suffered significant injury to his right shoulder area and nearby muscles on 12 February. On the other hand the Plaintiff’s army records and the observations of wasting that Ms O’Neill and Dr Rail made in February and March 1992 persuade me that he had suffered significant injury in that area previously.

460 That said, there is nothing in the Plaintiff’s police records to indicate that since he became a police officer he had suffered any significant weakness or difficulty in lifting his right arm or the difficulties in functioning of which Dr Blum spoke in this letter of May 1994. Clearly the actions of Constable Dimatteo on 12 February were of a nature liable to cause injuries and disabilities of the nature that induced Dr Blum to operate and when regard is had to the injuries observed by Ms O’Neill, to the apparent change in functionality of the shoulder, I am led to the view, contrary to the final opinion of Dr Blum, that the incident of February 1992 was related to at least some of the problems the doctor found.

461 Nevertheless, the fact that the Plaintiff had had significant prior injury to the area, with consequences that were continuing, means that the damages for the injury to the shoulder are and muscles should be appreciably less than they otherwise would be.

462 So far as the other injuries claimed are concerned, the Campbelltown Hospital notes and Ms O’Neill’s report indicate that the Plaintiff suffered injury in all of the areas listed with the exception or possible exception of his forehead and right chest. However, the notes refer also to injury or soreness in the Plaintiff’s left chest. The Plaintiff also suffered a lengthy scar from the operation in the area of his brachial plexus although, except in a very literal sense of the term, I would not call it disfigurement.

463 The only evidence that the injuries, except that to the right shoulder and surrounding area, were of other than bruising or soft tissue nature liable to resolve in a matter of weeks, is the Plaintiff’s evidence of on-going pain and discomfort. Furthermore, the nature of the incident on 12 February 1992, even if one accepted the totality of the Plaintiff’s evidence is not one likely to be productive of permanent damage in most of the areas mentioned. So far as the evidence reveals the Plaintiff has sought relatively little treatment over the years for areas other than his shoulder area and neck and, while I accept he does suffer pain in other areas, I am not satisfied that this pain is due to any physical injuries inflicted on 12 February.

464 It is likely also that some, though I think a minor proportion, of the injuries suffered on 12 February 1992 were other than normal incidents of the Plaintiff’s arrest and his being taken to the police vehicle in circumstances where the Plaintiff was likely to have been less than fully cooperative.

Disabilities

465 Counsel for the Plaintiff advanced a list, extending to paragraph (fff), of disabilities no doubt constructed by trawling through the enormous number of medical and the like reports produced since the events of 1991. A few of the paragraphs in the 58 paragraph list contain more than one item, sub-paragraph (bb) extending to 54 suggested pre-injury activities that the Plaintiff is said to be now unable to do. One cannot but wonder at the enormous expenditure of resources that personal injury litigation has become without any consideration of the relativity between cost and benefit. For my part I do not propose to spend the further time necessary to deal individually with the matters listed although some are encompassed within what I have already said.

466 I have no doubt that the Plaintiff is an emotional wreck, and has been that way since late 1991 or early 1992. Given the duration of the time that that has been the situation, it is in the highest degree unlikely that he will change in any significant way for the better. His condition has resulted in his losing much of the enjoyment of life in all its aspects and affected badly his relationship with others including his wife. I accept that the Plaintiff’s various complains to the doctors over the years were of matters he regarded as genuine but it is probable that at a significant proportion of the physical disabilities and pain that the Plaintiff has felt he suffered are products of his psychological or psychiatric condition.

467 I accept also that the totality of damage that has occurred to the Plaintiff’s right shoulder and neck muscles have substantially impaired the use that can be made of that shoulder and arm. I am not persuaded by the medical evidence that the disabilities the Plaintiff has with his right hand and fingers are the result of events on 12 February 1992.

468 I should add, lest it be thought that I have overlooked the submission, when the other evidence is as strong as it is in this case, the fact that the Plaintiff did not give evidence of some of the injuries and disabilities claimed, does not lead to the conclusion that he does not suffer from them.

Damages – Economic Loss

469 I turn to the question of damages. In light of my assessment of the Plaintiff’s psychological, psychiatric and mental state, I regard him as totally and permanently unemployable and to have been in that situation since 11 February 1991. The Defendant’s breach of duty has contributed to this situation.

470 However, the Plaintiff’s vulnerability to which I have referred was such that one must recognise the possibility that the Plaintiff would have arrived at his current situation without the breaches of duty that I have found. Relevant in this connection are some of the assessments of the professionals whose reports are in evidence in the case and in particular the obsessional tendencies to which many of them refer. Those tendencies may not have been strong enough to themselves amount to a psychological or psychiatric condition but they were certainly strong and sufficiently so as to contribute to the likelihood of an adverse reaction to severe stress flowing from the inevitable imperfections of the world, including the police service. Of course, insofar as any future events that led to an incapacitating illness or condition in the Plaintiff were incidents of his employment, the benefits of Workers Compensation and the like provisions would apply.

471 A number of the Plaintiff’s actions or problems as disclosed in the evidence also strike me as unusual, an indication of a lack of reasonable judgment, or evidence that he did not have what I would regard as a normal capacity to tolerate stress. Examples of the sorts of matters to which I refer, and reactions by me to some of them are:-

His being, according to Exhibit N, depressed (not simply disappointed) when he thought in January 1991 that the prospect of a country posting was out of the question;

His feeling of injustice when he was moved to the city following his conviction on an assault charge. In my view it would have been unreasonable for him not to be moved, at least temporarily, following his conviction; he had no permanent claim to the Tallimba posting;

The extent of his concern or distress following remarks about his lips being on Mr Yuill or him kissing the latter. Such remarks may well have been inappropriate, badly expressed or in bad taste but hardly justified more than momentary displeasure, irritation, or distaste.

His concerns and the continuation of concerns evident in the psychology notes, quoted above, of or following 3 July 1991.

The apparent need, shortly after being advised of his Menindee appointment, to mention to a psychologist his concerns to the effect that the aboriginal population had 200 years of problems and he, or the police, were expected to solve society’s problems and he could not take on the world.

His reporting to Sergeant Morton of so many matters about Constable Strong about which the Plaintiff had no evidence.

Making his report to Sergeant Morton 10 days after arriving at Menindee without apparently recognising that to do so then with the little evidence he had was bound to cast doubts on his own credibility in the minds of those receiving the report.

Making his complaint to Sergeant Morton rather than to Constable Blayden in circumstances where he has not suggested, and by inference did not have, a good reason for by-passing the latter and without substantial discussion with Constable Blayden about Constable Strong’s misdeeds and the need for them to be reported.

The conversation recorded by the psychology section on 6 September. This was still only 3 weeks after the Plaintiff arrived in Menindee and long before any reasonably discrete investigation could have been expected to produce results.

The breadth of a number of statements in his aide-memoir particularly without identification of persons who could back those statements up.

The suggestion in the aide-memoire that Constable Blayden should not be held accountable notwithstanding the assertions therein of general public awareness and disquiet and the litany of misdeeds attributed to Constable Strong, at least one of which was said to have come to the attention of Mrs Blayden.

The inconsistency in the Plaintiff’s remarks concerning Constable Blayden made on or before 28 October 2004 and the inconsistency between those remarks very complimentary of Constable Blayden and by-passing him in favour of reporting to Sergeant Morton.

472 These matters of course intrude also into any assessment of the Plaintiff’s prospects of advancement in the Police Force. That assessment has other difficulties. One arises from the discrepancy between the remarks on the Plaintiff’s performance Constable Blayden made in his report of 1 December and those apparent in the documents that preceded the Plaintiff’s move to Menindee. Assuming what has been said in the documents is accurate, the two views cannot be reconciled except upon the basis that, prior to the Plaintiff going on leave in November 1991 and prior to being exposed to almost all the stressors that followed his complaint, the Plaintiff had either dropped his bundle or become very incompetent, indeed to a degree that he had effectively no prospect of promotion and little future in the Force. Against such possibilities are Constable Blayden’s remarks in the report concerning the Plaintiff’s appearance.

473 Save and except for Constable Blayden’s evidence there was none to corroborate what he had said in his report. However, it should be said that included in his evidence concerning the Plaintiff’s performance at Menindee were statements to the effect that the Plaintiff had reacted poorly in some circumstances of stress, evidence which of course derives some support from matters referred to above. On the other hand it seems strange if the Plaintiff’s performance, but not his appearance, deteriorated to the extent the report indicates. Furthermore, while I can recognise the possibility of a deterioration in the Plaintiff’s performance if psychological or mental problems were developing prior to his going on leave, I find it impossible to accept that the Plaintiff’s knowledge of general police practices and procedure was minimal. There are too many indications of the opposite in the pre-Menindee reports on the Plaintiff’s performance. While in many respects the report reads as a rational and reasonable assessment of the Plaintiff, and there is nothing in Constable Blayden’s evidence on the topic that causes me to reject the terms of the report, at the end of the day I am not disposed to accept its accuracy. On balance, I regard the assessments of the Plaintiff’s performance as a police officer made over many years as the more reliable, albeit they need qualification to reflect the vulnerability and the lack of judgment to which I have referred.

474 In respect of an assessment of the Plaintiff’s future prospects, I was also pressed with, inter alia, a variety of statistical evidence based, in the case of that relied on by the Plaintiff, on those from his intake who remained in the Police Service and the ranks achieved and in the case of that relied on by the Defendant, on statistics taken from the Police Force as a whole. And while the Defendant’s statistics emphasised the small number of officers who had senior rank at any time and the number of applications there were for senior positions, a notable omission from those statistics was the proportion of persons who, in due course and perhaps after a number of tries, attained senior rank. In addition, there were from each side detailed actuarial calculations upon a variety of assumptions but which, necessarily, were only a small proportion of those that could have been made. Each party also relied on selective choice among the available evidence. Most of the submissions in this area are in writing and in those circumstances I do not need to detail all of the contending arguments.

475 A major issue was the rank the Plaintiff could have been expected to attain in the Police Force, one of the actuarial calculation advanced in behalf of the Plaintiff assuming he would have attained the rank of Assistant Commissioner. The pre-Menindee assessments of the Plaintiff’s performance in the army and as a police officer, the Tallimba references and to a degree the Plaintiff’s perfectionist tendencies argue for him having a successful, perhaps a very successful, police career. He was keen on the role and in that connection, I am satisfied that the Plaintiff would have continued to undertake the various examinations calculated to help his advancement. Counsel for the Defendant submitted that there was weakness in the Plaintiff’s evidence on this topic but the Plaintiff’s actions and attitude pre-Menindee put the matter beyond doubt. On the other hand, the evidence that has led me to the view that Plaintiff displayed a degree of vulnerability and a lack of reasonable judgment in some areas argues in the opposite direction. So does some evidence indicating that the Plaintiff was less than agreeable at times with fellow police officers (in addition to those at Menindee). A liking for service in the country, if implemented, on the evidence limited the opportunities for promotion.

476 I accept evidence from Inspector Peate that ability to plan, organise, lead and control were important ingredients in any judgment whether a application for promotion was likely to be granted. Inspector Peate’s evidence that the Plaintiff was “was an also-ran officer (who) ... would be very lucky to get past the sergeant rank” is entitled to weight although one must recognise that Inspector Peate’s view was probably coloured by his knowledge of events in Menindee.

477 Given the factors arguing against a career that could be described as very successful, I think it unlikely that the Plaintiff would have risen above the rank of sergeant but otherwise the variety of factors makes it impossible to make any prediction as to what rank in the Police Force the Plaintiff would probably have attained.

478 The hierarchy of ranks is constable, constable first class, senior constable and then third class sergeant. Elevation from constable to constable first class requires the passing of an exam and 4 years service. Elevation to senior constable required the passage of a further 5 years. Both were no doubt conditional upon no significant adverse events. Promotion above senior constable was on merit and on the basis that medical, conduct and integrity standards were met. It is common ground that there are various levels and rates of pay in the ranks of both Senior Constable and Sergeant

479 The Plaintiff had attained the rank of Constable First Class and was due to become a Senior Constable on 11 February had he not been on sick leave at that time.

480 I have referred to the stresses of a police officer’s job. Statistics included in the Defendant’s expert report indicate that in the years 1990 to 2006, the average age of medical retirement of officers varied between about 43 and 55 years with an average of about 46 years. The comparable average for other retirements was about 57 years. The report indicates that a “hurt on duty” pension is somewhat greater than a retirement one although it contained no indication of the relativity between the “hurt on duty” pension and a working officer’s wages (though particulars of matters said to found an award of aggravated and exemplary damages, filed on 6 November 2007 on behalf of the Plaintiff contain an admission that the relativity may be as high as 95%). It is likely that if the Plaintiff retired for reasons of stress, he would have received a “hurt on duty” pension.

481 Of course, if the Plaintiff chose to retire early for other than medical reasons, the likelihood is that one factor relevant to that decision would be an ability to earn comparable income otherwise.

482 I indicated during the course of the hearing that I would follow the course of making primary findings and leave the parties to carry out the calculations that followed. When regard is had to the factors I have mentioned and the others referred to in counsel’s submissions, it seems to me that a fair assessment of the gross loss of income the Plaintiff has suffered in consequence of the Defendant’s breaches of duty would be calculated on the following basis. He would have advanced through the levels of senior constables and to the top level of senior constable at the rate of one level per year from 11 February 1991 and would have stayed at that level for 3 years. From the end of that 3 year period until retirement as a police officer at age 55 he would have earned at a rate equal to the average of the income of a senior constable and sergeant year 7. His superannuation and pension entitlements and payments should be calculated on the basis of these figures or, if necessary, the level and rank which has the salary level nearest to the average figure referred to.

483 I make it clear that the method of calculation I have adopted is not intended as an indication of the levels of rank or income that the Plaintiff would have attained at various times. It is intended as a quantification that reflects the mass of uncertainties that there are so far as the economic aspects of this case are concerned and which go well beyond those normally encompassed by an allowance for “vicissitudes”.

484 There should in addition be the usual 15% allowance for vicissitudes.

Damages - Non-Economic Loss

485 The degree of destruction of the Plaintiff’s quality of life has been very great (although of course well short of that suffered by quadriplegics or many who are brain damaged as the result of torts). However, allowance must also be made for the possibility that his make-up would have resulted in some damage or destruction in any event. I have accordingly discounted substantially the figure at which I would otherwise have arrived and award on this account $180,000.

486 In arriving at that figure I have not taken into account any damages for the assault on 12 February 1991 although I have taken into account the arrest and humiliation he suffered on that day and, to the extent to which that arrest and humiliation contributed to the destruction of the Plaintiff’s quality of life, that destruction. These matters are in my judgment a result of the emotional state into which he had fallen and to which the Defendant’s breaches of duty contributed.

487 For the assault committed on 12 February 1991, including the ongoing problems with the Plaintiff’s right arm and shoulder and neck, an appropriate amount of general compensatory damages is $40,000. This is also a discounted figure to recognise the prior problems in and about the shoulder and its muscles and the possibility of further deterioration in consequence.

Damages - Aggravated and Exemplary

488 Claims have also been made for aggravated and exemplary damages. In particulars filed on 6 November 2007 the matters relied on were identified in some 36 paragraphs although in the written submissions of counsel for the Plaintiff, the matters relied on were much reduced. In those submissions it was said that these types of damages were warranted by the Defendant’s conduct in:-

(i) Failing to provide adequate or continuing psychological and psychiatric counselling and help;

(ii) Failing to keep the Plaintiff’s complaints about Constable Strong confidential and anonymous as the Plaintiff requested and expected and was assured;

(iii) Exposing the Plaintiff to the humiliation of having to surrender his police appointments and having his telephone cut off;

(iv) Arresting the Plaintiff on 12 February when alternative process not involving arrest was available, using excessive force in that arrest, placing the Plaintiff handcuffed in the dock at Campbelltown Police Station in view of other officers;

(v) Discharging the Plaintiff from the New South Wales Police Service and refusing to admit and denying and contesting that his injuries resulted from the incidents suffered while he was a member of the New South Wales Police Service, despite overwhelming medical evidence to that effect; and

(vi) Subjecting the Plaintiff to the hotly contested proceedings before Judge Geraghty, which in view of the overwhelming medical evidence and manifest deficiencies in the police and other lay witness evidence as found by Judge Geraghty were proceedings with little prospects of success from the Defendant’s point of view; and

(vii) Placing liability in these proceedings wholly in issue and litigating these proceedings accordingly including cross-examining the Plaintiff, in the light of Judge Geraghty’s judgment.

489 This conduct was said to be improper, unjustifiable, and lacking in bona fides and justifying awards of aggravated and exemplary damages...

490 Returning to the matters in the seven paragraphs of the Plaintiff’s written submissions, I have largely dealt with the matters referred to in paragraphs (i) to (iii) in terms that indicate they provide no basis, alone or in combination with other matters, for aggravated or exemplary damages. The cutting off of the Plaintiff’s telephone, or more accurately the absence of notice that that was about to occur, is of such a minor nature that, of itself, I would not regard as justifying either aggravated or exemplary damages.

491 Given that it is no longer suggested that the Plaintiff’s arrest was wrongful, the Plaintiff is not entitled to aggravated or exemplary damages because an alternative to arrest was available. The use of excessive force in the course of the arrest and subsequently is however a matter that lays a foundation for the award of such damages. Because it was an incident of the Plaintiff’s arrest rather than of the assault, I regard the Plaintiff’s treatment at the police station and subsequently on 12 February 1992 as not arguing for aggravated or exemplary damages, and this notwithstanding that I have no doubt that the humiliation at the station was great and could readily have been avoided.

492 The proposition that discharging the Plaintiff from the Police Service should go or assist to found and award of aggravated or exemplary damages when the evidence at the time and now is clear that the Plaintiff was then unfit to serve as an officer has only to be stated to be rejected. I do however agree that both the medical evidence and the undisputed evidence of events is overwhelming that the Plaintiff’s “adjustment disorder with depressed and anxious moods” resulted at least in part from incidents that occurred while the Plaintiff was a member of the Police Service and in the course of that service.

493 I am satisfied that the Defendant was unreasonable, indeed very unreasonable, in opposing the Plaintiff’s claim before Judge Geraghty. That unreasonableness is demonstrated by a mere consideration of the chronology of events and this even if the Plaintiff suffered some pre-existing condition such as temporal lobe epilepsy that contributed. It is also demonstrated by Judge Geraghty’s account of the proceedings before him. In part his Honour said:-

“The hearing of Bennie’s appeal from the determination of the Commissioner has been a disturbing experience, full of anger and anxiety, and an uncommonly expensive commitment of the resources of this court, of transcript services which has provided an excellent daily transcription of the evidence, of the medical profession and the Police Force. The court staff and its resources have been occupied for almost 30 days. I have sat, for the main part silently, and wondered what these proceedings have really been about.

I have watched Bennie deteriorate from day to day. As time grinded on, he became more withdrawn, thin, with dark sunken eyes, tense, sometimes explosive, while his wife, Julie attend to him followed him out of court to settle him, and supported him throughout what she must have thought was a horrible nightmare. I have sometimes wondered what my responsibilities as a judge were while I watched a wounded person being subjected to an extended and stressful experience. It was difficult to maintain the cool, objective demeanour demanded of a judicial officer, to listen impassively to the evidence as it unfolded to allegations accusations recollections of trivial behaviour long past and not intervene. The legal system is ill-equipped to deal with psychiatric cases.

...

Bennie has watched his former fellow police officers come before me, over a period of many days, deny his evidence, challenge his version of the facts, reflect on his sanity and good faith, his social skills, one even alleging criminality and fraud, while he has sought to maintain a belief in his own worth, his perhaps unrealistically high standards, his professionalism, his integrity, his drive to support members of the community and to preserve respect for the underdog. His fellow officers, on the other hand, have also had to bear his criticism, his harsh judgments, his condemnation, what they have alleged were his lies, even vicious insane lies. While listening to the evidence, I have had time to ponder why all this was happening, for what end, to what purpose.

I consider that the real issues in Mr Bennie’s appeal were simple and circumscribed, though the story was complex and mysterious. The story involved conflicting evidence, a mishmash of lies, untruths, exaggerations... To start with, the alternative confronting me was that Bennie had been always crazy, that he had been a misfit in society and in the Police force for many years, that he was maladjusted and psychotic, epileptic, or on the other hand that he had been “driven mad” by his fellow police officers and the police culture.

The issue was simple. Bennie has appealed the decision of the Commissioner, alleging that his certified condition was caused by his employment and that he is unfit as a result of being “hurt on duty”.

Simply stated, I must decide whether the applicant’s “adjustment disorder with depressed and anxious moods” is the result of being “hurt on duty” or in other words, whether there is a causative link between his certified disorder and his employment as a police officer.

The Commissioner of Police answered the appeal be asserting that Bennie was not hurt on duty. He alleged that he suffers temporal lobe epilepsy (TLE), a condition which explains the variety and constellation of the symptoms he has exhibited.

The Commissioner further asserted that the events of 12 February 1992 which may have resulted in a diagnosis of adjustment disorder, are entirely unrelated to Bennie’s employment, or alternatively, that Bennie’s gross behaviour on that day took him outside the course of his employment.

...

My reasons for judgment can take two forms – the extra brief version, and the extended version.

According to the brief version, the overwhelming evidence and all dictates of commonsense leads me to the simple conclusion that Bennie’s present condition, and his condition as at November 1992 and July 1995, and in February 1992, relates mainly, if not exclusively, to the duties and stressors as a policeman. Any other conclusion seems perverse.

Bennie may well suffer from TLE. Such a diagnosis is notoriously difficult, and may remain forever doubtful. There are, it would seem, some further tests which could be conducted and may be helpful to assist in any clinical diagnosis.

However, even if Bennie does suffer TLE (and on balance, I am persuaded no such diagnosis can be reliably made), so what? Such a diagnosis would not change the fact that he suffers an adjustment disorder which rendered him unfit to serve as a police officer... (That condition) continues until today as the stressors continue, at least until this appeal is concluded. It is clearly a condition which is related closely to his work as a police officer, a disorder caused by his inability to adjust to the stressors and circumstances of his job. There is no other credible or probable explanation.”

494 I do not however regard the Defendant’s conduct in resisting the Plaintiff’s claim in this Court as unreasonable. The Plaintiff has had an extraordinarily bad reaction to events which, while no doubt disappointing and some of which should clearly never have occurred, fall well within the range of normal, albeit not everyone’s, human experience. A warning and option to move were not given. There was (not proved to be more than) a temporary lack of thought in connection with the Plaintiff’s re-transfer. Some colleagues, relatively junior members of the Police Force, ganged up to punish the Plaintiff for “dobbing” on another colleague. The colleague the subject of complaint responded with sarcasm. There may have been some lack of thought in connection with the telephone and computer or that might have been part of the punishment referred to. On one view, these are not much more than adult examples of schoolboy bullying and behaviour albeit they suffer from the added gravity of offending against regulation 32 of the Police Service Regulation.

495 Those remarks cover most though not all of the breaches I have found but they help to demonstrate that the Plaintiff’s reaction was extreme. And although I have upheld it, so is his claim that because of the Defendant’s conduct, he can never work again. When these matters are combined with the evidence of odd incidents in the army, the vulnerability I have found, and the lack of judgment displayed in August and October, the Defendant was by no means unreasonable in defending the claim in this Court.

496 Nor do I regard the Defendant as unreasonable in the manner in which the proceedings were conducted. Certainly, some parts of that manner were calculated to, and did, distress the Plaintiff. However, the Defendant had statements or evidence that contradicted part of what the Plaintiff said. The evidence in part came from medical practitioners whom the Defendant was entitled to regard as objective. The Defendant was entitled to challenge the Plaintiff’s credibility and reliability, and the challenge was in part successful.

497 It is also pertinent to bear in mind that the proceedings before Judge Geraghty raised significantly different issues to those raised before me. The former proceedings were not dependent on the Plaintiff establishing a breach of the Defendant’s duty of care as are the current proceedings and the events giving rise to the Plaintiff’s claim there could extend to all the stressful events he had experienced in his police career. So far as the events of 12 February 1992 are concerned, here the principal question is whether the Plaintiff was assaulted. In the proceedings before Judge Geraghty it was whether the Plaintiff’s actions were unrelated to or outside the course of his employment.

498 In summary, of the matters relied on in final submissions on behalf of the Plaintiff, there are only 2 in respect of which an award of aggravated and exemplary damages could be justified – the assault by way of the use of excessive force at the time of the Plaintiff’s arrest and defending the proceedings before Judge Geraghty.

499 In his address in chief, counsel for the Plaintiff addressed some of the 36 paragraphs comprised in the particulars, saying that he preferred to address the others after the evidence relied on in support of the claim was identified. In written submissions in reply it was contended simply that the Plaintiff had “not identified a proper basis upon which it can be said that an award of aggravated or exemplary damages ought to be made”.

500 Contrary to the contention of counsel for the Defendant when considered in light of the concluding part of paragraph 55 and paragraph 57 of the Plaintiff’s counsel’s submissions, a number of these paragraphs do provide a reasonable indication of a basis for a court to consider whether an award of aggravated or exemplary damages ought to be made. That said, I am not disposed to make an award of such damages on the basis of those 36 paragraphs except insofar as they are included in the 7 quoted above. In the case of many of the other matters, this is because I have not found the circumstances to be as alleged. In the case of some of the others, it is because I am not disposed to find that the Defendant’s conduct had or was accompanied by or resulted in the aggravating or additional features that are required to justify an award of aggravating or exemplary damages. In part it is that counsel for the Plaintiff did not pursue reliance on those of the 36 matters not included in the 7 to which I have referred.

501 Furthermore, only one of the 36 paragraphs describes an incident that I have found to be victimisation, viz paragraph 11, “On 3.2.1992 Strong refused the plaintiff access to the police computer” and that matter is, in itself, so minor in the scheme to things that I am disinclined to regard it as going to justify or inspire the further damages sought.

502 Returning to the two of the seven matters relied on in final submissions on behalf of the Plaintiff in respect of which I have found that an award of aggravated and exemplary damages could be justified, I take the view that there is nothing about the impact of the assault on the Plaintiff that justifies an award of aggravated damages. On the other hand, that assault does justify an award of exemplary damages. The power of police officers is so great that is important to society that contravention of its limits be marked with disapproval and while I do not suggest that all assaults in the course of arrest require or justify an award of exemplary damages, I am satisfied that the assault in this case does so. On this account I would award a sum of $20,000.

503 The proceedings before Judge Geraghty raise different considerations because, while the injury constituted by the “adjustment disorder with depressed and anxious moods” upon which the Plaintiff relies here was, according to my findings contributed to by tortious acts for which the Defendant is responsible, the issue before his Honour was whether the totality of the Plaintiff’s police service, of which those acts were only a part, contributed to that injury. In other words, the proceedings before his Honour only partly arose from the tort relied on here, and indeed the proceedings could have been disposed of in the Plaintiff’s favour without any findings concerning the happening of the acts said to constitute the tort. In those circumstances, can the proceedings before Judge Geraghty be said to be so closely connected with the tort that, however unreasonable the Defendant’s conduct in connection with them, it is proper to regard them as justifying an award of damages for the tort.

504 A consideration of Judge Geraghty’s reasons does demonstrate that, while many issues were canvassed in both proceedings, the issues before his Honour covered a significantly wider area than those before me. Furthermore, a number of the matters that I have found to be breaches of duty on the part of the Defendant or its officers do not seem to have been considered by his Honour.

505 No authority was cited to me to indicate that events removed from a tort to the extent to which the proceedings before Judge Geraghty were could properly found an award of aggravated or exemplary damages and in the result I have reached the conclusion that I am not entitled to award aggravated or exemplary damages on the basis of those proceedings. Against the possibility that that view be wrong, I should say however that I have not the slightest doubt that each of the proceedings, the need for them occasioned by the rejection of the Plaintiff’s claim for compensation, and the conduct of the proceedings added insult to what the Plaintiff had suffered at the hands of the Defendant, partly due to the breaches of duty I have found. Had I felt entitled to award aggravated and exemplary damages, the award on each count would have been high.

506 I should perhaps add that, save and except for what I see as the Defendant’s unreasonableness in defending the proceedings before Judge Geraghty, there is no evidence of a lack of bona fides on the part of the Defendant after the events in Menindee.

Damages - Other

507 During the course of the hearing, I indicated that I thought it appropriate to make primary findings, leaving the parties to then carry out mathematical and actuarial calculations. In accordance with that approach, I indicate the following.

508 I was informed that past medical out-of-pocket expenses were agreed – see T1157.

509 The Plaintiff also made a substantial claim for future medical expenses and the like. The claim was in the amount of $345 per week and was based on Dr Taylor’s report where the costs were estimated at $200 per week for osteopathic and chiropractic, $75 to $100 per week for a psychologist and $150 per monthly visit to a psychiatrist.

510 Counsel for the Defendant said the 2007 visit to a chiropractor was at a cost of some $400. I think there was not evidence of this but it is likely that the figure came from the agreement about past out-of-pocket expenses. Be that as it may, counsel for the Defendant submitted that the appropriate way of dealing with these expenses in the future was to provide a cushion. Counsel for the Plaintiff suggested that if I did not accept Dr Taylor’s estimate I might have regard to what had been paid in the past but I am not conscious of any evidence of this.

511 Given the Plaintiff’s physical and mental condition it strikes me as inherently likely that some such expenditures will be incurred at irregular intervals and this notwithstanding the infrequency of visits of recent times. When the need arises, there is likely to be a series of visits. I would allow a sum of $2,000 per year which represents, roughly, average annual visits of 4 to a chiropractor, 6 to a psychologist and 3 to a psychiatrist.

512 In accordance with Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54 interest on non-economic loss should be calculated at the rate of 2% from the date of injury which I would put at 11 February 1992, to the date of judgment. Interest for past economic loss should be calculated in accordance with the Practice Note rates, with due allowance for credits or halving, depending on the method chosen.

513 There should be an allowance for superannuation, the calculation of which should be based on what I have said about economic loss.

514 I have, I think, said enough to enable damages to be calculated by agreement. If I have overlooked anything the parties should regard themselves as free to bring it to my attention. At this stage, I propose to stand the matter over, at first for mention and, if it appears that any further argument or decision is required, to another date.

**********

LAST UPDATED:
23 July 2009