S v State of New South Wales

The plaintiff was born in 1964. She joined the New South Wales Police Service ("the police service"), then known as the New South Wales Police Force, in 1985. She was formally attested as a probationary constable on 17 May 1985. She left the police service on 13 May 2003 having attained the rank of sergeant. She has not worked in any paid employment since then. The plaintiff submitted a Hurt on Duty statement in August 2003.

During her employment with the police service the plaintiff undertook duties as an undercover police officer. The precise work that she performed in that role and the periods over which she performed it, are each described in considerable detail later in these reasons. It is uncontroversial in these proceedings that that work was stressful and that it materially contributed to the plaintiff's medical condition, which led to her retirement. It is also not in dispute that during the entire period that the plaintiff was a police officer, the defendant was aware that undercover work could give rise to a risk of psychiatric injury.

The plaintiff brings these proceedings in which she claims damages against the defendant alleging that it breached its duty of care to her in a number of ways. Although the particulars of negligence that were originally described in the various editions of her statement of claim were numerous, they had by the conclusion of the hearing become limited to only the following: 1. Failure to devise, institute and maintain a safe system of work so as to avoid injury to the plaintiff. 2. Failure to provide the plaintiff with adequate training to perform her duties. 3. Failure to provide the plaintiff with any or any adequate psychological and/or other counselling and/or psychological or psychiatric treatment. 4. Failure to establish and maintain good and recognised procedures for the re-integration of undercover police officers in the position of the plaintiff into mainstream policing duties. 5. Failure to devise, institute and maintain a proper or adequate system for the flagging of police officers involved in numerous critical incidents as being productive of cumulative stress. 6. Failure to put into operation any system or protocol or guideline for rotation of duties of the plaintiff after a stressful incident. 7. Failure to notify the Welfare Unit or Psychology Unit. 8. Failure to put into operation any system or protocols or guidelines for operational de-briefing and 'de-roling' (sic) of the plaintiff. 9. Failure to rotate the plaintiff out of undercover work xxxxx xxx xxxxxx xxxx xxxxxxxx xxx xxxxxxxxxx xxxx.

The defendant does not deny that it owed the plaintiff a duty of care in the circumstances. However, the precise scope and content of that duty are matters of contention. Moreover, the defendant denies that it had relevantly breached any duty that may have been owed to the plaintiff or if it had breached such a duty, that any loss or damage that the plaintiff may have suffered was causally connected to such breach. The defendant also asserts that the plaintiff had in any event contributed to her loss and damage by reason of her own fault and contributory negligence.

Central to the resolution of these issues is the precise identification of the work that the plaintiff performed as a police officer in general policing on the one hand, and the work that she performed as an undercover operative on the other hand. Although at one level it might not have been expected that an accurate assessment of these matters would prove to be troublesome, no significant or sufficient agreement about the precise nature or extent of the plaintiff's undercover work emerged. Because they lie at the heart of the plaintiff's case and the defendant's response to it, an understanding of these issues needs to be reached first. The plaintiff's work for the police service

The plaintiff commenced at the Goulburn Police Academy in 1985 and graduated in first place in her initial training class of 210. She received the Police Credit Union award for that achievement. She was 20 years old when she commenced work as a probationary constable. She was by her own admission conspicuously ambitious. She spoke publicly at the time of aspiring to the rank of Commissioner.

Following graduation the plaintiff commenced an induction period at the Cronulla Local Area Command ("LAC") as a probationary constable. During this time she performed general policing duties. She hoped even then to work as a detective. In 1986 she commenced secondary training. She performed well and attained first place and received the Police Association Award. Operation Explorer

In August 1986, the plaintiff was temporarily transferred from Cronulla to the Drug Strike Force to perform undercover criminal investigation work. She was to work on a relatively lengthy undercover operation known as Operation Explorer. This was aimed at drug dealers in the Kings Cross area. She was directed by her superiors to "go and buy some smack". She was shown a photograph of a man known as "Gerry" who said he was a dealer, and she was given $50 to make the purchase. She was told that he was often at the Sweethearts Coffee Lounge in Darlinghurst Road, Kings Cross.

The plaintiff went to see Gerry with another young female constable named Greta Crowe and a male constable whom she recalls only as David. They walked along Darlinghurst Road in plainclothes and found Gerry in Sweethearts. The plaintiff walked in and sat next to him. Gerry asked her if she wanted some gear. She said yes. He gave her a foil under the table in return for the $50. She then left. She bought from him again on two further occasions after that and gave evidence against him in court following his arrest. He was convicted. That was the plaintiff's first appearance in court.

The plaintiff was subsequently told of other places to go in Kings Cross, the Eastern Suburbs and the inner west of Sydney to buy drugs and to make contact with drug dealers and drug users. She was shown photographs of known drug dealers. She did what she was told.

Another part of Operation Explorer was directed at a notorious heroin supplier in the eastern suburbs whose name was Shane Milner. The plaintiff met him at the Bondi Hotel and they discussed drug dealing and purchasing. She bought heroin from him on a number of occasions. On one such occasion the plaintiff gave him money and he went away to make a purchase from a third party with her money and some of his own. He then returned with a quantity of heroin that was roughly four times the amount that her $50 would normally have purchased. He gave it to her to divide. She split it into thirds and kept one third for herself and handed the remainder back to him. She described all this in a running sheet and was later informed that she had technically rendered herself liable to prosecution for having supplied drugs.

The plaintiff later arranged for Mr Milner to supply her with a larger amount of heroin. It was intended to be a buy/bust operation in conjunction with the Waverley Drug Unit. Through her negotiations with Mr Milner she discovered the name of his supplier who was a woman who drove a white Mercedes. She was a longstanding target in the Eastern Suburbs drug milieu.

The plaintiff attended a briefing before this activity. She was told that she and Ms Crowe were to go to the Bondi Hotel in the presence of surveillance operatives outside the hotel. She was not given a radio or a listening device but said Det Sen Const Plotecky of Waverly Police gave her a switchblade knife. As she was given the knife she was told, "This Shane Milner is [a] real piece of work. He is a psycho and can just go off. So take this. Do you know how to use it?" She was taken aback. The plaintiff put the knife in her handbag without saying anything.

Ms Crowe and the plaintiff met Mr Milner at the Bondi Hotel. They were to get into a taxi with him and go to another location where a drug supplier would be. They would then hand over a couple of thousand dollars to purchase heroin. The plaintiff said she was really worried about losing the money. The plan was that they were to be followed closely by surveillance officers and when they met the supplier he would be arrested and the drugs and money would all be recovered. This did not occur.

After meeting Mr Milner, the plaintiff and Ms Crowe got into the taxi with him in a conspicuous way so that the surveillance crew would not miss them. The plaintiff looked out of the back window but could see no sign of anyone following them. The plaintiff did not know the area where they were going and recalls thinking that the surveillance officers must be good because they were invisible to her.

They alighted from the taxi at a bus stop at Kingsford. It was dark. A white Mercedes arrived, driven by a woman. Mr Milner asked her for the money. He said, "She won't let anyone else get in the car. I will jump in the car. She keeps the drugs internally. I will then get dropped off a few metres down the road". The plaintiff and Ms Crowe argued about whether or not to hand over the money. Mr Milner was saying, "Hurry up, she has to go". Ms Crowe gave the money to the plaintiff and she handed it to Mr Milner. He got into the car and it slowly drove away. Nothing else happened. They had no mobile phones and they were unable to contact anyone. They went back to the bus stop. They had lost the money and had not made an arrest. The plaintiff said she felt exposed on the street. They later waved down a passing police car.

In the events that occurred the surveillance team had not even seen them at the hotel. They had in fact been on their own for the whole time. The plaintiff thought about how dangerous it had been. She thought that they would be sacked. The plaintiff was told not to worry as that happened from time to time. The plaintiff does not remember receiving a formal de-briefing after this incident.

On another occasion during Operation Explorer Ms Crowe and the plaintiff met two young men at the Coogee Bay Hotel. They became friendly with them and the men sold them some cannabis. This happened on a couple of occasions. They went back to the young men's flat. They had regular jobs and did not appear to be in the business of selling drugs. These men were ultimately arrested and during an interview said that they did not believe that they had sold drugs to undercover police. The men were paraded past the plaintiff and Ms Crowe. Their faces showed shock and despair and they both started crying. The plaintiff felt terrible and thought that she and Ms Crowe had wrecked their whole lives and that they would lose their jobs. That was the first time that the plaintiff remembered being confronted with the personal and emotional implications of her undercover work. She did not speak to any senior officers about this and was not encouraged to do so. Return to general duties

The plaintiff returned to general duties in January 1987. She had by then worked as an undercover police officer for four months. She was attached to the Cronulla LAC where she was given a permanent position. During this time the plaintiff undertook her First Class Constable examinations. She passed these examinations and placed second in the State. She remained intent on pursuing her career as a detective.

During her time at Cronulla the plaintiff was repeatedly contacted by the supervisor of the Special Forces (Undercover) Unit of the State Drug Group who was seeking to have her work permanently for that unit as an undercover agent. She did not accept that offer at first as she was focussed on furthering her career as a detective. Eventually the plaintiff was told that she would be given immediate access to the detectives course if she transferred to the unit of the (then) Drug Law Enforcement Bureau. Transfer to Special Forces (Undercover) Unit

The plaintiff transferred permanently to this unit in January 1988. At that time she was the only female undercover officer. As a result she was constantly in demand by the Bureau in all manner of undercover operations. She worked permanent afternoon shifts but the job was all- consuming and she had to be available 24 hours per day. She always carried a pager. She was given a motor vehicle as well.

During this time the plaintiff was almost constantly working under an assumed name with fake identification. She usually worked alone conducting negotiations with criminals and organising the arrangements to purchase drugs. xx xxx xxxxxxxx xxxx xx xxx xxxxx xxxxxx xxxxx xxxx xxx xxx xxxxxxx xxxxxxxxx xxxxxx xxx xxxxxxx. She lived in a constant state of anxiety. The reality of the dangers that she faced on a day-to-day basis was often brought home to her during specific operations when she exposed herself to potentially violent criminals.

The plaintiff recalled on one occasion at the undercover unit having training in the use of a Berretta handgun. This was a small gun designed to be concealed on her person during undercover operations. The training focussed on close-range targets. She was told that she would only be required to use the weapon when in close proximity to the target such as in a car or seated across a table.

In the course of Operation Washing, which commenced in 1988, a search warrant was executed at the home address of certain targets with whom the plaintiff had been working undercover. A number of firearms were found there. She was told by Det Sen Sgt Stanioch that one of the targets had been overheard in the Waverly Police Station cells arranging with another prisoner for a contract to kill her.

The conspirators were notorious and dangerous criminals who had been involved in the attempted murder of a prison officer during an escape from Parramatta gaol. She was told by Mr Stanioch "to do anti-surveillance on [her] way home". She was deeply troubled by this. xxx xxxxxxxxx xxx x xxxxxxxx xx x xxx xxxxx xxxxxxxx xxxxxxxx xxx xxx xxxxx xxxxxx xx xxx xxxx xxx xxxxxxxxx xxx. The plaintiff learned of this when she saw a statement that he had made to the consorting police who were investigating a conspiracy to murder her.

As part of her undercover work there was a considerable amount of time spent socialising regularly with her (mostly) male undercover colleagues at the unit. This invariably involved the consumption of quite large amounts of alcohol. She did not speak of her anxieties during these sessions. The work environment was very "macho". The only acceptable response to the dangers and stresses of the work was to show no weakness.

The consumption of alcohol was an accepted and necessary part of the job of an undercover operative at that time. For example, the plaintiff recalls attending the inaugural New South Wales Special Forces (Undercover) Education course at the Goulburn Academy where alcohol was allowed in the common room during the course. This was to judge the students' behaviour whilst under the influence of alcohol, given its prevalence during and after operations in the unit.

The plaintiff formed quite real personal feelings for a number of the targets of her undercover work, many of whom were subsequently arrested and imprisoned. She raised her concerns about this potential conflict of loyalties and emotions in 1998 in a conversation with a superior officer Det Sgt Peter George. He was the supervisor of the Undercover Unit. The plaintiff asked him how she should deal with emotions regarding targets and the people involved in the drug trade. She explained why she did so: "A. I was feeling, I was involved in an operation and I was meeting a lot of people involved in the drug trade. They were mainly street level dealers and I, they seemed to be just dealing to support their habit and they were friendly to me, they were trying to help me. I was just having a few concerns about how do we go about, if I start an operation how do I go about when these people are arrested and probably put into gaol, I was having problems with the implications of that and I said to Detective Sergeant Peter George, well, how do we deal with, how do I deal with this, what do I, what do I do, and he said to me, 'You've just got to work out what side of the fence you're on', meaning, 'You are a police officer. That is your job. That's what you have to do'. And that was as far as it went."

She did not raise the issue again.

The plaintiff recalled an incident early in her undercover career during Operation Domino in about May 1988. She worked with another undercover operative called xxx xxxxxxxx. They were targeting the distribution of heroin on the street through ethnic communities and gaming houses in and around Punchbowl. The plaintiff informed one of the targets that she worked at the desk in an escort agency as part of her undercover identity in that operation. She formed an ambivalent friendship with this target and was invited to his wedding and to his child's christening. He cooked meals for her and disclosed details of his criminal dealings.

This man was arrested as a result of the evidence gathered by the plaintiff and her partner. She had mixed feelings about this, including betrayal. She received no assistance from anyone about how to come to terms with these conflicting emotions. The plaintiff said that they were to become a pattern in her time as an undercover operative.

The plaintiff said that she was not only in constant demand as a female undercover operative but that she was successful as well. In about February or March 1989 she worked on a very large undercover job in Revesby. Due to her work in negotiations and dealings with the laboratory cook they succeeded in making a large arrest and the destruction of a methamphetamine laboratory with no cost to the department. However, this was very stressful for the plaintiff, especially during the arrest. For example, she "escaped" when the arrest took place and ran down the street chased by police with their guns drawn. For her work on this operation, the plaintiff was awarded the Peter Stuckey Mitchell Award for most outstanding police duty.

In April 1989 the plaintiff again performed well in her educational pursuits in the Police Force placing first in the detectives Potential Crime Investigators course. In September 1990 the plaintiff gained second place in the Detectives Training Course. Operation Alpha Kilo

In 1990 the plaintiff went to court to give evidence in relation to Operation Alpha Kilo. That led to the arrest and prosecution of five well-known drug dealers with links to Colombia. They were violent and dangerous men. The operation was brought to a head when the plaintiff went into a vehicle with three of the four criminals with a large sum of money with which she was to purchase 2kg of cocaine. She was wearing a listening device and was arrested along with the other occupants of the car. Police surrounded the car with their guns drawn. They were all thrown to the ground and handcuffed, including the plaintiff.

The plaintiff was told that the reason that the operation had concluded at that time was due to concerns about her safety and the possible loss of the money if the deal progressed. When the matter went to court her superiors at the undercover unit informed the plaintiff that she would be offered witness protection together with transport to and from court each day. The court hearing went on for weeks and the plaintiff was extensively cross-examined for one of them. Despite promises of protection, support and assistance, the plaintiff was required to make her own way to and from court and to adopt anti-surveillance practices. Operation Alpha Quebec

In 1991 the plaintiff worked on Operation Alpha Quebec. The target of that operation was a Dennis Preston who was an associate of the well-known and dangerous criminal George Freeman. The plaintiff met Mr Preston at his home and met his family and his young girlfriend at the time. She was required to present herself as a friend and to do what she could to establish a relationship of trust with the target and his friends and associates. Her work on this job led to Mr Preston's arrest. She was given an Award Commendation for her work on that operation.

The subsequent trial and cross-examination was what the plaintiff described as typical for her work. She was cross-examined vigorously and her veracity was challenged. The plaintiff said that episodes like that were common for her in the course of her work as an undercover operative. She was never provided with any assistance, either formal or informal, to deal with the conflicts that confronted her, or to come to terms with what she described as the essential fact of betrayal.

In February 1991 the plaintiff worked on a long-term undercover operation on the North Coast around Ballina and Byron Bay. She worked closely with x xxxxxx xxxxxxxxx. xxx xxxxxxxxx xxxxxx xx xxx xxxxx xxx xx xxxx xxxxxx xxxxx x xxxxx xxxx xxxx xxx xx xxxx xxxx. During this operation, the plaintiff was left largely to her own devices to make cold contacts at local hotels in an attempt to obtain evidence about serious drug dealers in the area.

The plaintiff recalled one particularly frightening episode when she attended a remote rural property with xxx xxxxxxxxx for the purpose of organising the purchase of heroin from a target. He was unstable and reportedly dangerous. The plaintiff had no back up, no listening device, no mobile phone and no firearm. She recalled a sense of real exposure and fear during her time on this property. She spoke to xxx xxxxxxxxx about her concerns. She was not aware of any process or person to whom she could turn in the New South Wales Police to help her to cope with the impact of these stressful situations. She simply accepted that she had to deal with them on her own. The plaintiff said that by that time "it had begun to seem normal". Transfer to Parramatta Detectives

In April 1991 the plaintiff transferred to the Parramatta LAC as a Detective Senior Constable. She was assigned a junior plainclothes partner to work with her. During her time with the Parramatta LAC she was occasionally seconded to undercover placements with other LACs on their request.

The plaintiff had difficulty returning to work as a uniformed officer at a LAC. She was treated with suspicion by many other police officers that she thought looked upon her as an undercover operative concerned that she may have been associated with internal affairs. That suspicion, together with her lack of experience in front-line uniformed policing, meant that her transition to Parramatta was very difficult for her. She received no assistance with these issues from the New South Wales Police Force.

In 1991 the plaintiff completed her Associate Diploma in Criminal Justice from Mitchell College. Between 1991 and 1995 the plaintiff continued regularly to undertake undercover duties on an ad hoc basis throughout New South Wales.

In September 1994 the house that she was sharing with undercover operative xxx xxxxxxxx was searched by police in connection with allegations against him. The plaintiff's relationship with xxx xxxxxxxx came under considerable strain at that time and ended shortly thereafter.

In 1995 the plaintiff was awarded a Graduate Certificate in Public Sector management from Griffith University. Transfer to Granville LAC – Chief of Detectives, Investigator

In April 1997 the plaintiff was transferred to the Macquarie Anti Theft Squad as an investigator. In that role she undertook investigations into property theft. That work involved close surveillance of local pawnbroking businesses as well as undercover duties. She also performed regular relieving duties in the Commander Supervisor roles as well. The squad was designed as a regional "flying squad" that was able regularly to use the plaintiff's undercover skills and experience. She undertook supervision of more junior officers as well as acting in the second sergeant's position when that was created at the squad. " CE-1 "

In xxxx the plaintiff worked as an undercover officer investigating a xxxxxx xx xxxxxxxx murders xx xxxxxxxxxx xxxxxxxx xxxx xxxx xx xxxx xx xxx xxxxxx xxxxxxxxxx xx xxx xxxxx xxxxx. In that role she was seconded to work with a police informant who was introduced to her as "CE-1". He was an intimidating man, even to the plaintiff with her particular background and experience. xx xxx xxxxxxxx xxxx x xxxxxx xxxx. xxx xxxxxxxxx xxxxxxxxx xxx xx xxxxxxxx. xxx xxx xxxx xxxxxx xxx xxx xxxx xxx xxxx xx xxx x xxxxxxx xx xxxxxxx xxxxxxxx, xxx xxxx xxxxxxxx xxxx xxxxx xxxxx, xxxxxxxxxxxxxxx xxxxxxxxxxxx, xxxx xxxx xxx xxxxxxxxx. Most disturbingly for the plaintiff, she had been told that xx xxx xxxx xxxxxxxxx xxx x xxxxxxxxxxxxx xx xxxxxxxx xx x xxxxxx xxxx xx xxxxxxxx x xxxxx xxxxx xxxxx xxxx xxx xxxxx xxxx xxxxx.

The plaintiff was required to xxxx xx xxxx xxxxx xxxx. xx xxx xx xxxxxxxx xxxxxxx xxx xxx xxx xxxxxxxx xx xxxxx xxx xxxxxx. It was hoped that some evidence concerning his involvement in the unsolved murders might be obtained. The plaintiff ended up with this man in an isolated location xx xxx xxxxxxx. She agreed that during this time she remained under surveillance from her colleagues.

On another occasion she drove the man to a suspect's house in another xxxxxxx location. The plaintiff spoke to the suspect's wife inside a house for a short while. xxxx xxxx xxxxx xxxx x xxxxxx xx xxxxx xxx xxx x xxxx xxxxx. During this time "CE-1" was wearing a listening device capable of transmitting conversation and any conversation he was having, and police were observing what they could from somewhere in the vicinity. The plaintiff denied that on this occasion she was under surveillance at all times. She said, "I was never under surveillance by other police when I went into the suspect's house xx xxxx xxxxxxx xxxx". A similar series of events occurred a short time later.

The plaintiff recalled that when she was staying alone in a motel xx xxx xxxxx xxxxx during this operation, "CE-1" would xxxx xxxxxxx xxx xxxxx xxxx xx xxx xxxx xxxxxxxxxx xxx xxxxxx xx xxxxxx xx xxx xxxxxxxxxxx xxx xxxxxxxx x xxx. The plaintiff described him as a very disturbed and disturbing man.

During her time with "CE-1" on that operation, he told her about his family and some of his life history. It was necessary for the plaintiff to xxxxxxx xxxx xxxxxxxxx, xxx xxx xxx xx xxx xx xxxx xxx, xx xxxx xxxxx xxxxxxxxxxxx xx xxxxxxx xxx xxxx xxxxx xxxxxx xxxxxxxxx. xx xxx x xxxxxx xx xxxxxxx xxxxxxx xxx xxxx xxx xxxxxxxxx xxxx xx xxxx xxxx xx xx xxxxxxxx xxxx x xxxxxxxx xxxxx xx xxx xxxxxxx xx xxxxxxx. The plaintiff said that she was horrified by this and did not know what to say.

When "CE-1" revealed to the plaintiff xxx xx xxx xxxx xx xxxx xx xxxx xxx xxxxxxx, the plaintiff thought that he was being serious. However, she made no record of it in her operation report and did not record it anywhere else. This man knew that the plaintiff was a police officer and yet the plaintiff made no report of what he told her as possibly amounting to the admission of a serious crime. The plaintiff said that at the time she "didn't put two and two together" and that she did not do so until about xxx xxxx when she saw a newspaper article. She was horrified to think that this man may have xxxxxxxxxxx x xxxxx xxxxxxxxxx xxxx x xxxxxxxx and that he knew who she was.

The plaintiff answered the following series of questions in cross-examination on this topic: "Q. And that you were required to continue working with him? A. Yes. Q. You could have said, couldn't you, to those with whom you were working, hold it, this man has just confessed xx x xxxxxx. This is terribly dangerous, I'm out of here? BURBIDGE: He wasn't confessing to x xxxxxx. MENZIES Q. Confessing to a very serious criminal offence, namely xxxxxxxx xx x xxxx, and I'm horrified and I don't want to have anything more to do with it. You could have done that, couldn't you? A. Not really. I didn't feel like I could have done that then. Q. Why not? A. Because actually I was taking part in an operation to obtain information that we were investigating a xxxxxx xxxxxx. Q. Do you say, is this right, the other matter was more serious, we were prepared to put up with whatever the risk might be of association with this man. Is that what you are saying? A. No, no. Q. When it was all over and you went your separate ways and you hadn't got anywhere, there was nothing then to stop you, if you were concerned about it, pursuing the matter, was there? A. No. Q. And you didn't do it? A. That's right. Q. Do I take it that was because it was a matter which was not of such significance that you thought it was worthy of further enquiry? A. At that stage."

The plaintiff denied that the evidence that she gave about how she reacted to these events had been tailored by her to give an impression of distress at that time that she did not have in fact. The plaintiff said, "That's totally incorrect". She confirmed that her concerns arose because of what she had described in an earlier affidavit sworn 23 March 2005 in the following way: "I realised that the xxxxxxxx xxxxx referred to in the article was the person ["CE-1"] referred to when at the time of my previous contact with him he said words to the effect, xx xxx xx xxxxxxx xxx xxxxxxx xx xxxxxx'. When I read the article, I realised that he had been xxxxxxxxx xx xxx xxxxxx. I became very scared and stressed. I was worried he would find me as he knew that I was a police officer and he had previously confessed to me in relation to that matter."

It was the plaintiff's realisation that she had been dealing with somebody who was apparently x xxxxxxxx, as well as the fact that he had confessed to her, that caused her distress. The plaintiff explained why notwithstanding this she told no-one about it. This was because "CE-1" had told her previously that he had police connections and police contacts. He was complaining to her about corrupt police and how he had been set up. The plaintiff said that if she had reported her concerns to the police, "CE-1" would have found out that it was her. The plaintiff agreed, however, that she was aware from her role as a supervisor that there were certain mechanisms in place by at least 2000 to provide assistance to people who might be at risk from dangerous criminals.

In or about xxxxx xxxx the plaintiff saw a newspaper article about a xxxxxxx xxxxx xxxxx xxxxxxxxx xxxxxxxxx. The article included a large picture of xxxx xxxxx. The plaintiff had an immediate flashback to her time with "CE-1" and remembers thinking how xxxx xxxxx xxx xxx xxxxxxxx xxxx he had referred to when he related to her xxx xx xxx xxxx xxx xxxxxxx. What she had been told became instantly real to her.

She recalled "CE-1's" 'confession'. She thought about working and living in close proximity to such a dangerous and violent man who knew that she was a police officer. Her anxiety and related symptoms increased. She developed heart palpitations and sweating. She became worried that "CE-1" might remember his confession to her. She felt fearful for her life and that of her partner. She told him about it.

Despite her fear of "CE-1" and her distaste for him, the plaintiff was required to continue to work with him xx xxx xxxxxxx xxxx. He came to her motel room and she visited the suspected killer's home in company with "CE-1" xx xxx xxxxxxxxx. xxx xxxxxx xxx xxxxxxxxxx xxxx xxxxx xxx xxxxxxxxx xx xxx xxxxxxx xx xxxx xx xxx xxxxxxxx xxxxx xxxxxx xxxx xxxxx xxxxxxxxxxxx. xxx xxxxx xx xxx xxxxxxxxx xxx xxxx xx xx xxxxxxxx xx xxxxxxxxx xx xxx xx xxx xxxxxxxx xxxxx xxx xxxxxxx xxxxxx, xxxxx xxx xxxxx xxxxx xx xx xxxxx. xxx xxxxxxxxxxxxx xxx xxxxxxxxx xxxxxxxx xx xxxxxx xxxxxxxxxx xxxx xxx xxxxxxxx xxxxxxxx xx xxx xxxxxx xxx xxxxx xxxxxxx xxxx xxxx xxx xxx xxxxxxx xx xxx xxxxxxxx xxxxxx.

During these visits the plaintiff was required to gain the trust of the target and to elicit admissions from him that were to be recorded on a listening device that she was to wear. On one occasion the plaintiff was talking to the target's girlfriend when she was asked if xxx xxx xxxxxxxx. The plaintiff said that she gave an incorrect answer and recalls thinking at the time that her slip had the potential to jeopardise the whole operation.

The plaintiff was never required to give any evidence about this xx xx xxxxxxx xx xx x xxxxxx xxxxx xxxxx "CE-1" xxxx xxxxxxxx. She agreed that following the operation she filled out a document commenting upon it that included the following statements: 1. "Supervisor only involved on main day and was not actually briefed prior. So in regard to scant knowledge received I believe he did a wonderful job, high concern for operative's welfare and safety." 2. "Amazing how informant and I able to build rapport and understanding in very short time." 3. "Had similar likes and dislikes et cetera et cetera. Correlated with my role so closely with dangerous criminal." 4. "Nearly forgot cover story (one child) when speaking with target's wife in first instance but then recovered." 5. "Very easy role. Just to xxxxxxx xxxxxxxxxxx xxx xxxxxxxxx." Continuing education

In 1998 the police service introduced a new requirement for promotion from the rank of non-commissioned to commissioned officer. This involved a three-day course run at what were known as assessment centres set up as required. One such centre was set up at Parramatta. The new system also required officers who wished to obtain promotion to a Duty Officer position to pass the course.

The plaintiff undertook the course at Parramatta with approximately 20 other police officers in 1998. The course was quite demanding and involved practical and written elements over a three-day period. The plaintiff was the only officer from the Parramatta LAC to pass the course, which had a very high failure rate. In about April 1999, the plaintiff became engaged to her present husband. This was a very happy time in her life. In May 1999 the plaintiff was awarded a Bachelor of Policing from Charles Sturt University. Return to Parramatta LAC 1999

The plaintiff next applied for and obtained the position of relieving Duty Officer at Parramatta. In late 1999 or early 2000 the plaintiff was frequently working as relieving Duty Officer in charge of the general duties police, detectives, highway patrol officers and prosecutors at the Parramatta LAC. She worked in that position for two-week periods. Her rank at the time was Det Sen Constable. In that capacity the plaintiff was directly responsible for approximately 100 or more police officers. At that time, Parramatta was classified as a Category 1 command, indicating that it was one of the largest LACs in New South Wales. The plaintiff reported directly to the Local Area Commander, initially Chief Superintendent Dana Jennings and later Chief Superintendent John Carroll. When she was not working as relieving Duty Officer the plaintiff worked as a general duties officer on a two person car crew and also relieved as a shift supervisor and team leader.

When working as a relieving Duty Officer the plaintiff was paid at a much higher than usual rate of approximately $800 per week in addition to her usual salary as a Det Sen Constable. For that reason the plaintiff said that there was quite a lot of competition for the role. Operation Rhino

In early 1999 while on annual leave from Parramatta the plaintiff was asked by (then) Det Sgt Greg Birtles of the Orange LAC to work as an undercover officer in that area. The undercover unit had supplied her name. Her secondment to Orange had been approved by Parramatta and she was told that the job started the following Monday. The plaintiff agreed to go.

The plaintiff undertook the role of an undercover operative within a drug ring. She was introduced to a number of drug dealers in Orange. She was to pose as a drug user and supplier. The plaintiff purchased a number of different drugs including hash, heroin and amphetamines. She was given a number of targets for the operation. She made contact with most of them and she attended most of the hotels in Orange looking for drug dealers and dealings.

During this time the plaintiff lived alone in a motel in Orange. The work was quite demanding and stressful. In particular the plaintiff recalls visiting the houses of two female dealers who injected heroin in front of their children. The women were very welcoming to the plaintiff. The children were quite young and aged approximately three to five. The plaintiff recalled feeling quite overwhelmed and helpless at the predicament faced by the children. They were dirty and uncared for. There was little food in the houses. The plaintiff also recalls being quite anxious not only about the harm that the children were facing but also about the fact that their mothers' actions would probably lead to them being imprisoned.

The plaintiff's Hurt on Duty statement said that Orange was rated second only to Cabramatta as a major drug distribution city in New South Wales and that ambulance personnel were attending six drug overdoses per week and six fatal overdoses in two months prior to that operation. This operation targeted street level drug suppliers. Det Insp Birtles (as he now is) was the undercover supervisor for this operation. Sen Const Darcy was the case officer. The plaintiff agreed that Mr Birtles deferred to her expertise as to how these matters should proceed because she was more experienced than he was in undercover work. They discussed how the operation should run and she pronounced herself satisfied with the strategies to be adopted.

The main target of the operation was the principal drug dealer in Orange. The plaintiff remembers being told xx xxx xxxxxxxxx that he could "pick a copper a mile off". She was told that he had contacts in the local police and that he never did anything without having lookouts. He carried a gun. The plaintiff was told "to be really careful".

The location chosen was a public park in Orange. She went into the park xxxx xxx xxxxxxxxx. The plaintiff had with her a large amount of money to purchase heroin. She sat on the park bench and waited for the target to attend. It was early evening in March or April and it got dark before the operation ended, although a dispute about the precise time of day that this occurred emerged in the proceedings.

The suspect had stipulated that the transaction was to be quick. He was to put the drugs to be purchased on a table in the park at which the plaintiff was to be seated and he was to take money from the table and leave. The plaintiff agreed that Mr Birtles said something to the effect, "That's a perfect place for police, it's the safest location that could have been chosen for you". Despite this, she said that she felt very alone and vulnerable. She thought about the target's gun and his potential links with the local police. She said she was "really frightened". Her anxiety increased as she sat there.

During the operation, there were approximately six plain-clothes police officers in cars and in buildings nearby conducting surveillance on the plaintiff xxx xxx xxxxxxxxx within approximately 50 to 100 metres. The plaintiff agreed that she was wearing a device capable of transmitting her voice and conversations and that that was a source of comfort for her. She was unarmed xx xxxxxxxxxx xxxx xxxx xxxxx xxxx xxxx xxxxxx xxxxxxxxxx xxxxxxxx. The operation was ultimately aborted when the suspect was alarmed by the unexpected sound of police sirens and he left.

The following day the plaintiff spoke to Det Darrell Donnelly by phone. He was the operations co-ordinator for the Macquarie Region, which included Parramatta. She was still in Orange. He asked her how it was going. She replied, "I don't think I can do this any more". This answer and the events that surrounded it became particularly significant in these proceedings.

The plaintiff did not feel right after this. She continued to be upset and felt vulnerable and anxious. She was unable to communicate her thoughts about this with anyone in the police. The plaintiff never contacted welfare. Welfare did not contact her. She did not want to show any vulnerability to her fellow police officers. She said that she was concerned that if word got out that she was attending on welfare that her prospects of advancement would be adversely affected. The plaintiff also said that she thought that her experience as an undercover officer was quite different and unique and she did not expect that anyone in welfare would have anything useful to say that would assist her to deal with her specific problems. She thought that she would just get over it.

The operational aspects of Operation Rhino concluded not long after this and the plaintiff returned to Parramatta working as before. However from this time on the plaintiff began to notice and to experience problems that had not previously been apparent. These are discussed in more detail later in these reasons.

The plaintiff returned to Orange for the court proceedings that followed the conclusion of Operation Rhino. That was in late 1999. She was told that protection for her was being arranged as there had been threats made against her and her superiors wanted to keep her safe. She was one of the main witnesses. She was told by Mr Birtles, "All the crooks know it was an undercover officer and they know it's you. The magistrate is giving [sic] them harsh sentences". Upon hearing this, the plaintiff again recalled the children and their mothers and what would happen to the children if they were to be sent to gaol for a long time. It made the plaintiff feel sad and helpless. She wondered why she was doing her job. It made her "really upset".

In particular, the plaintiff recalled feeling genuinely fearful about the threats to her life. She felt exposed knowing that criminals, with possible links to the local police, knew that she was a police officer.

The plaintiff said that her fear was not lessened when she got to Orange. She once again stayed by herself in a motel in town. There was no police guard or protection to speak of apart from walking to court in the company of Mr Birtles for a block or so. That was the only protection that the plaintiff was ever offered or received in the whole of her time working undercover with the police. She also recalled that one of the criminals from Orange had connections in a suburb in Sydney next to the suburb where she lived at that time. That fact continued to intrude upon her thoughts.

The plaintiff gave evidence of what happened in the course of the operation in Orange: "Q. And at that stage did you have some feelings which were different even from those which you were normally experiencing? A. Yes, I did. Q. And what was that? A. I was, I felt like I'd lost my nerve. I was getting a feeling of deja vu, like how many, like I was feeling, how many times have I done this before and I'd been sitting in a park waiting with an amount of money and waiting for someone to turn up and I was, I felt very vulnerable and I felt that I was, that something was going to happen to me and the guy was just going to shoot me and steal the money or he was just going to, I just felt very unsafe. I felt very scared."

The following day the plaintiff had a conversation over the phone with Det Insp Donnelly. He called her while she was in her car and asked her how the operation had gone. That was when the plaintiff said to him, "I don't think I can do this anymore." This was not said in a light-hearted manner. He asked her whether she wanted him to contact welfare. The plaintiff said no and that she thought she would get over it. She thought at that time that there were far reaching consequences of contacting welfare and she did not want the police service to become aware that she was not coping. This was explained as follows: "Q. And why was that? A. Oh, I think there was a number of reasons. I think, I think that was one of the reasons I was putting on a bit of a brave face and, as he said, I didn't want to say that I couldn't handle it or I couldn't cope with it. The second reason was I thought it was just a little glitch and I thought I'd get over it. I definitely, I knew if I contacted welfare it would be on my record and would be on my police record, my personnel record and-- Q. Why would that matter? A. And I wouldn't, and anything on my personnel record relating to sickness or not being able to cope would just be, it would pretty much delete my promotional opportunities and I was very career-orientated. I just wanted to, I was doing everything I could to try and get promoted and I would just be, I just passed the assessment centre and that's where my career prospects were laying."

The plaintiff later agreed that her concern about revealing her illness was that it would possibly amount to a career-limiting or career-ending circumstance. She was not convinced that the confidentiality of a medical consultation would survive what she saw as the harsh realities of the police service. This was despite her understanding of the words of the sick leave policy then in force dealing with confidential medical consultations. However, the plaintiff did agree with the following propositions put to her in cross-examination: "Q. Of course, if the fact was that you could not properly carry out your job because of illness and if the illness was of a chronic nature, then you would accept, would you not, that it would be perfectly reasonable under those circumstances for your employment to be affected; you would agree with that? If you can't do the job, then it must follow that you could not expect to be able to gain promotion, do you agree with that? A. If you can't do the job - yes."

The plaintiff also agreed that the only reason that she mentioned this matter to Mr Donnelly was because he asked her how she was going. When he asked her if she wanted him to contact welfare she said she would be fine. She reiterated that she never contacted welfare and welfare never contacted her at any time in relation to this incident or at any time in her policing career with respect to her undercover work.

The plaintiff agreed that before May 1999 she knew that she could attend the police psychology section for help if she needed it. She also knew that if she were psychologically troubled she could seek assistance from that source. In 1997 she was visited by an officer who was described as a health and fitness officer. That was part of the healthy lifestyle programme. That officer conducted checks such as weight, cholesterol, smoking, alcohol consumption and blood pressure. The plaintiff agreed she could have taken up any stress issues that she might have been having at that time with that person. The plaintiff said that she did not think that she had any such problems at that time. Treatment

In early 1999 the plaintiff felt increased anxiety. She had difficulties sleeping. On occasion she had palpitations and would break out in sweats when very anxious. She also became fearful of loud noises and was troubled by the dark. She visited Dr Milinkic, a general practitioner. She was referred to a psychiatrist, Dr Sharah. The plaintiff told them her story but felt that she had difficulty communicating it in a way that they would believe or understand.

It was also not clear to the plaintiff what she could actually disclose to the doctors. It was all meant to be secret. She was apprehensive about speaking for this reason as well. She had never had explained to her what she could or could not disclose to medical practitioners in a therapeutic environment about the undercover work she had performed. This made access to treatment difficult for her.

The plaintiff was also particularly concerned to keep her psychological treatment separate from the police service, as she did not want it to be known that she was under stress or having mental difficulties. She was trying to get on with her career.

One incident in particular occurred when the plaintiff was conducting an Investigators Course at Parramatta in late 1999 or early 2000. The plaintiff was qualified to run such a course since being accredited in 1996. There was a backlog of junior officers in the Parramatta LAC who were waiting to undertake the course. As a result, the plaintiff decided in conjunction with the Local Area Commander to run a command based investigations course in the LAC. This decision was well supported at all levels.

The course took approximately nine months over three separate semesters. The plaintiff gave three-day face-to-face lectures each semester with assignments and paperwork. While the plaintiff was giving a drug lecture, a number of the students began to ask her questions about her experience as an undercover officer. She started to tell them some war stories. She was unable to continue. She became teary and overcome. She felt detached from her past. She left the room and another officer took over for her.

The plaintiff said that she "was in a real state". She went to see Chief Inspector Don Brown. She remembers crying in his office and telling him about how she had broken down during the lecture. She was told to go home and relax.

In 1999 the plaintiff became aware of two potential Detective Sergeant positions that were available and that she was keen to apply for. One was a Senior Patrol Investigator at Parramatta and the other was at Westmead Police Academy. She continued during this time to relieve as Duty Officer at Parramatta as before. Also in 1999 the plaintiff had passed the Assessment Centre for Senior Sergeant/Education and Training Field. That was how she wanted her career to progress at that time.

At about March 2000 the plaintiff again saw her general practitioner to complain about continuing anxiety. She was referred to Dr Selwyn-Smith whom she first saw in April 2000. She gave him her history: anxiety, palpitations, sweats, fear of loud noises and the dark, and her continuing sense of lack of safety for herself and her partner.

The plaintiff continued throughout 2000 to receive requests to perform undercover jobs from the undercover section. She did not feel up to such work and made sure that she was unavailable for them. In October 2000 the plaintiff returned to see Dr Selwyn-Smith. She has continued to see him regularly ever since. Further matters

The plaintiff also spoke about giving expert evidence arising out of her experience as an undercover operative. During the time that she gave such evidence she was also from time to time involved in undercover operations and the follow-up court appearances associated with those operations. She said that it caused her concern that on some such occasions she would give evidence using her own name and on other occasions using a pseudonym.

The plaintiff also related how she was informed that she was no longer to be a member of the Special Forces unit with which she had started in January 1988 working full-time undercover. She continued with the unit throughout 1989 and 1990. After she completed her detectives course in September 1990 she arrived at work only to be told that that was to be her last day there and to hand in her gun. She asked why. She was told simply that the decision had been made. This troubled the plaintiff because at that stage she had had little exposure to normal mainstream policing and she was concerned about where was going to find work and how she would cope.

The plaintiff said that she did not include the nature of her illness (in any documents given to the police service) from 1999 or 2000 onwards partly because she thought that her career might be damaged and partly because she did not know what was wrong with her. In March 2000 the plaintiff saw Dr Sharah. She agreed that she might have told him that up until the incident in Orange she had regarded herself as invincible. For example the plaintiff gave the following evidence: "Q. Let me put this as an alternative. Did you believe until the event at Orange in the park, the event about which you gave evidence yesterday, that until that event you regarded yourself as invincible? A. I think I've, probably I, to an extent in regard to my undercover duties I probably thought they couldn't really hurt me in regard to being invincible. That's..."

The plaintiff agreed that she told Dr Smith that she did not disclose any problems that she may have been having to the police service because she did not want to embarrass herself or end her career prospects. She simply wanted to overcome her problems and continue to work. She agreed that in 1998 and 1999 she was very driven and ambitious and frequently sought promotion. Even though the plaintiff first sought treatment from Dr Smith in 2000, she did not inform her employer of this fact before May 2003 when he issued a WorkCover certificate to her and put her off work. She agreed that if that had not occurred she would have continued to refrain from informing her employer of her condition. The plaintiff said, "I just wanted to get better. I just wanted to get back to work. I didn't want to take any time off work."

The plaintiff said that in 1988 she had no recollection of what was contained in the undercover course with respect to issues such as stress and the like. She had no recollection of what was contained in the undercover course, if anything, about welfare. However, within a few years of that time she became aware of the existence of the psychology unit, the police chaplaincy and the peer support scheme and generally of the availability of the welfare service to provide assistance for those who sought it. The plaintiff agreed that the Police Service Weekly , an internal police service publication that she received, were at least a source for her understanding of the existence of the various welfare facilities that were available. She said, "I was aware of the notices in the Police Service Weekly for the different services at different times, possibly from mid 90's but from late 90's".

The plaintiff then gave evidence in accordance with the following questions and answers: "Q. And you were certainly aware of the sorts of - again from the same source - of the sorts of things that might indicate to somebody that they were suffering the consequences of stress or anxiety? A. How was I? Q. In the same documents as revealed to you the existence of the welfare service, I suggest to you that you were aware of what the symptoms and signs of stress were? A. There may - there was probably some reference to symptoms and signs. I wasn't fully an expert. Q. I beg your pardon? A. I wasn't fully an expert on if I read anything about the possible symptoms or signs. Q. But as I understand your position, until some time in 1999 or 2000, so far as you were concerned, you were not suffering any signs or symptoms that you recognised as being the signs or symptoms of stress, is that right? A. No, that's incorrect. Q. So you did have symptoms and signs which indicated stress, is that right? HIS HONOUR: To her? MENZIES: Yes. Q. Which indicated to you stress? A. Possibly. I didn't really - I didn't really understand what was happening to me and I didn't know what it was. Q. Until you first went to the doctor in 2000, I think it was, you didn't think there was anything wrong with you which required medical attention so far as your mental state is concerned, isn't that the case? A. That's incorrect. Q. When do you say that in your own perception you thought there was something wrong with you with respect to your mental state? A. After I came back from Orange in 1999. Q. But before that, you thought you were fine, is that right? A. Yes. Q. And you have told us how you kept from your employer that you had any problems relating to your mental state until about 2003? A. That's correct. Q. And certainly before you went to Orange, you didn't think that there was anything that required assistance so far as your mental state was concerned, is that right? A. I thought I was coping okay. Q. And this is the case, isn't it, that had you been offered psychological or welfare assistance at any time before Orange, the probabilities are you would have said, "No thanks, I'm fine", isn't that right? A. No. Q. Not the case? A. No. Q. What do you say would have happened? A. What do I say would have happened? Q. Yes, if the boss had come along through the welfare section and said, "Do you need any assistance? Can we offer you some counselling?", what do you say you would have done? A. I say I would have taken it. Q. I beg your pardon? HIS HONOUR: "I say I would have taken it". WITNESS: I would have taken it. MENZIES Q. You would have taken it? A. Yes. Q. Even though when there was the opportunity to take up that very matter, you declined on many occasions, is that right? A. Because it was handled differently. If someone from the undercover section came to me and said, "We think we should do this or we think - we will offer you this", and it would be within that - within that section, within that area and sort of all contained, I would have done it. Q. Look madam, you hadn't been undercover for years? A. But I was still doing undercover jobs that were still under control - under the control of the undercover section."

The plaintiff gave evidence of having to do undercover surveillance at Parramatta of an apparently notorious suspect accused of a series of sexual attacks on women in lifts in the west of Sydney. This was a matter that the plaintiff said gave her considerable concern. The plaintiff said that she was a decoy and was walking up and down the stairwells in the car parks in the Parramatta area in an attempt to draw out the so-called Sydney Lift Rapist to confront or attack her. She agreed that when she went to the car park where she ultimately arrested the suspect she was aware that there were other police in the immediate vicinity to assist her. She also knew that the suspect had been positively linked to a particular person by way of a registration number of his car. She was armed, as were other police officers.

The plaintiff was asked and answered the following question: "Q. And as these sorts of incidents go it was a relatively benign set of circumstances? A. Yes."

By the time that the plaintiff had completed her Hurt on Duty statement in August 2003 she had already been diagnosed by Dr Smith with PTSD. She had discussed with him her problems with working undercover. She also related to him that she had been the first female at the Police Academy and had been highly commended. She also told him that when she commenced her undercover work she was the only female doing such work. She told him that she had been threatened.

It was put to the plaintiff that before being assigned to undercover work she received training and that her assertions that she received none were false. The plaintiff said that her training was limited to "stop, search and detain" procedures and drug identification. She agreed that she was told how to account for drugs that may have been purchased as an exhibit. She adhered to her assertion that she was effectively thrown into undercover work without any other training or assistance that was unique to such work.

The plaintiff said that Det Sen Const Plotecky gave her a switchblade knife during Operation Explorer at the Waverly Drug Unit in 1986. She denied that that assertion was false.

The plaintiff denied that she entered the taxi at the Bondi Hotel with Shane Milner xxxxxxxx xx xxxxxxxx xxxxxxxxx. The plaintiff described what happened: "We were told the police would be waiting outside the hotel, we were to walk out the main doors of the Bondi Hotel, get into a taxi, hail a taxi. And the other officer and I make a big scene of hailing a taxi, standing with the crook and we were told that surveillance police would be outside the hotel and they would follow us. We didn't know where we were going. They didn't know where we were going. So we got into the taxi. I sat on the back seat, the other officer sat on the other back seat and the crook sat in the front seat of the taxi. I had the knife in my bag and we drove off and I remember speaking to the other officer, I was looking out the back window and it was getting dark and I was looking out the back window and I said, I remember, and I said to the other officer, "Gee, they must be really good at surveillance" because I thought they were driving a distance away. I thought they were behind us, I thought they were following us. And then we got off at a bus stop at Kingsford and I still thought, gee, they're good at surveillance, they must be around the other streets."

The plaintiff said that she had been reluctant to go into undercover work because of the impact that it may have on her career. She was asked about this: "Q. What was your concern about your future career? A. I, my plan for my future career was to go into detective work. That is what I wanted to do. I was, and at that stage to go into detective work you had to do what is called the bull-ring to get in the eligibility list to go into criminal investigation work and then you had to work in a plain clothes position at a police station for a period of time, I think it used to be two years, two years or sometimes three years, I don't know, until a position came up. So I saw my career path, I wanted to become a detective and I had been told by other officers that I would be better utilised in the detective field rather than operationally in general duties and I had lots of encouragement in that regard. So I knew what I had to do was complete the bull-ring and then wait for a position to come up in a plain clothes position at a local police station, then undertake probably two years training as a plain clothes constable. Because only if you had two years, I think it was two years, only if you had two years training, plain clothes work were you then eligible to undertake the detective's course. That is how I wanted my career path to go. That is why I had such a dilemma, because one of the paths was if I went to the undercover section, regardless of the work I had performed previously, that wasn't counted as a plain clothes position and that wouldn't allow me to be eligible for the detective's course and that wouldn't allow me to be trained in plain clothes work."

The plaintiff said that she was "pressured" to go into undercover work. She said this: "I was pressured in the fact that I was visited by the undercover supervisors. There were phone calls to me and the conversations related to the fact that we really need you at the undercover section, there is no females, we really need you at the undercover section. Will you come to the undercover section?"

She denied that she in fact applied for a job in the undercover section or that she was anxious to get such a position. She said, "I wanted to stay and become a detective but I felt they put so much pressure on me and then they told me we will let you do the detectives course if you come to the undercover section." This was so despite the fact that her application on 3 March 1987 said, "I enjoyed my previous time with the Drug Law Enforcement Bureau and I wish to further my career in this field of duty where I feel I can be utilised to a greater extent." Another application by the plaintiff on 1 March 1989 said, "Due to my understanding of the direction of my career path I requested a transfer to the Undercover Unit Special Forces Group of the State Drug Group. I hope I am successful with my application".

When the plaintiff left the Undercover Unit in 1991 and took up a position as a detective at Parramatta, one of the things that had troubled her during the whole of the period that she had worked undercover was that she had feelings of empathy or compassion for some of the people she was targeting. This was a matter that she took up from time to time with her supervisors. The plaintiff agreed that as a consequence of her own experience and her attendance at the courses where she trained she was very conscious of the sorts of pressures that were on undercover operatives and of the stresses that they faced. The plaintiff said this: "I was aware of the stress that people can be under by my observations, and the stress that people can be under in regards to pressures from other police to get the job done, to have a time limit, to do your best, to do your best and get the job done. There was a lot of pressure from other police who, who just seemed to think that you just go out there and set up the deal and they were only there for the buy/bust part and they just seemed to think that - it was a lot of pressure to produce outcomes, to produce results."

Certainly by 1995 the plaintiff was aware of undercover operatives who had suffered psychological disorders apparently caused by the pressures of the job. The plaintiff said that there was danger connected to every undercover job. Debriefings did not occur. She denied that people who may have wished to threaten or harm her had no access to her true identity.

The plaintiff said that between when she moved to Parramatta as a detective in April 1991 and November 1995 she performed what she described as quasi-undercover duties. She described what this meant in the following way: "Quasi undercover duties I referred to as sort of undercover duties where I went to a hotel in plain clothes, not known as a police officer, to see if there was any drug activity, to see if there was any licensing problems. Any underage drinkers. I think another quasi undercover operation was when I was at the Parramatta City Hotel and I just portrayed not a police officer, a, a patron of that hotel waiting for the, some people to come and rob the hotel."

Thereafter the plaintiff no longer went into covert premises. She said, "I didn't flash a badge and I was working in a quasi undercover capacity in the fact that I was investigating criminal activity or licensing activity. I was still performing my role as investigating an offence."

In 1992 the plaintiff was involved in Operation Quick Return with Const Ridley. This was in Queanbeyan. It lasted for a couple of weeks following which she returned to her duties as a detective at Parramatta.

In 1992 she performed undercover duties at the Xtreme Niteclub. The plaintiff did not go there wearing a listening device. There was no buy/bust. The plaintiff described her duties on this occasion as follows: "I went to a strip club. I watched ladies dance and I watched them remove their clothing. I had a meal. I kept my eye on the manager of the club. I spoke to him, from memory I spoke to him and gained intelligence about the other patrons of the club. It was to establish a link to the other criminal activity. I reported on the information that I gained. At the end of the operation the manager was arrested for prohibited drugs and I think it was steroids. I went to court later for it."

The plaintiff next worked undercover a little later at the Hellfire Club at Parramatta. She observed some activities there and returned to her investigative duties at Parramatta. Then in 1993/1994 the plaintiff took a temporary transfer to the Major Crime Squad North West for a three-month period, and she assisted with an undercover operation at Penrith during that time. The undercover work did not occupy the whole of that three-month period. For the balance of that time the plaintiff remained at the Parramatta Detectives' Office doing ordinary detective work.

The next occasion on which the plaintiff worked undercover was on Operation Early involving the Sydney Lift Rapist, as described earlier in these reasons. This lasted about two days. The plaintiff then spent about one day undercover working on a car rebirthing racket. She was in fact the officer in charge of that investigation.

In December 1995 the plaintiff became Chief of Detectives at Granville. She subsequently lost that position on appeal by another officer. At some point at about that time the plaintiff did an undercover operation for Macquarie Fields command with nominated targets swallowing balloons of heroin. Over a two week period the plaintiff said that she did the following things: "I met with an informant, I worked out a cover story, I went with the informant to a location to meet other people. I bought drugs. I then met other people and I continued negotiations with them and then I met some other people, culminating in the buy/bust of one lot of people going down when I was sitting in the car with the crooks and as soon as the police come running up with guns out, the - the crooks swallowed the heroin and - that they had in balloons so then we were all arrested and I was thrown to the ground and I remember I hurt my back".

At some point thereafter the plaintiff performed an undercover role in the streets of Granville and Guildford. This lasted for a period of a few weeks but only every second day or so.

In 1997 the plaintiff became the commander of the Macquarie Anti-Theft Squad. At some point during this time the plaintiff did undercover/surveillance work as part of Operation Ardmore. This lasted for approximately one week. She performed similar duties for one day at the Tollgate Hotel at North Parramatta. At about this time the plaintiff was assigned to duties with Task Force Belair. She was posted at Sydney Airport and may have been required to board a plane for overseas in company with a notorious kidnapping suspect at short notice but in the final analysis nothing happened that made this necessary. Even so, the plaintiff said that her duties caused her to feel distressed and fearful and concerned. She described how she felt in the following way: "There was a missing woman, there was a ransom demand made, my job was to follow, to jump on a plane and follow the kidnappers when they picked up the ransom. I did not know where I was going to, what was going to happen, who were these people. I didn't know - as I said they - they made sure I had a passport so I could go anywhere. I was told I just - I needed to follow the kidnappers to wherever they went. Now, that was quite, um - it did - it did create anxiety. I was also told I may have to arrest them, I may have to - they didn't know what was going to happen. It was open-ended."

In 1998 the plaintiff worked undercover on Operation Imperial. During almost all of this time, however, she spent her time listening to tapes of secretly recorded conversations. Then in 1999 the plaintiff was involved as the commander and investigator and surveillance operative of Strike Force Napanee at Castle Hill. This only involved surveillance work.

The plaintiff said in re-examination, presumably limited to her own experience, that "nearly every undercover operation has never gone to plan". There was no issue in the proceedings that inherent in the work was the possibility that any proposed meeting with a target or drug dealer might not go according to plan or might go wrong and that this would cause angst and stress on the part of operatives.

The defendant expressly conceded on the first day of the trial that it did not take any issue with the plaintiff's assertions that she did all of these things, and indicated consistently with that concession that it would be not put to her that she did not. Furthermore, as mentioned already, the defendant expressly indicated that there was no issue that there was in general a foreseeable risk of psychiatric injury being occasioned to police officers who work under these circumstances, although there is said to be an issue about the foreseeability of the risk to the plaintiff in particular. There is no issue about the existence of a duty of care owed by the defendant to the plaintiff but the scope and content of the duty and the question of its breach are both in issue. Moreover the defendant puts in issue the existence of a causal connection between any loss and damage suffered by the plaintiff and any breach of its duty to her.

In these circumstances, therefore, it becomes critical to examine the plaintiff's particular psychiatric injury, to which her employment, in particular as an undercover operative, made an admitted material contribution, in order to determine: 1. Whether the plaintiff sustained a psychiatric injury in the course of her employment with the defendant. 2. Whether or not the plaintiff's psychiatric injury was reasonably foreseeable. 3. What was the nature (scope and content) of the duty owed to the plaintiff. 4. Whether or not the defendant breached the duty of care that it owed to the plaintiff in the circumstances. 5. Whether or not there exists a causal connection between the plaintiff's psychiatric injury and any established breach of duty on the part of the defendant. 6. Whether the plaintiff contributed to her loss and damage by reason of her own fault or contributory negligence. Did the plaintiff sustain a psychiatric injury in the course of her employment with the defendant?

The starting point for this topic can be found in the defendant's early, and proper, concession that during the entire period that the plaintiff was a New South Wales police officer the defendant was aware that undercover work could give rise to a risk of psychiatric injury. Although this concession is more closely connected to the question of foreseeability (discussed below), it removes any doubt about the defendant's attitude to the possibility that someone in the position of the plaintiff could sustain psychiatric injury in the course of her work. The defendant's position on the precise issue emerged somewhat more clearly during the course of the hearing as the following brief extract from the transcript reveals: "HIS HONOUR: There is no issue in this case, of course, that her work made a substantial contribution to her damage. MENZIES: Yes."

However, at the commencement of the hearing I was provided with a written list of 24 issues. I was informed that 17 of those issues were not in dispute but that the remaining seven issues were in dispute. The following issue fell into the second category: "20. That the plaintiff's injury and disability was caused by the plaintiff being hurt on duty."

The defendant's position indicated by the quoted passage from the transcript and the formulation of that issue at the start of the trial are potentially, although not inevitably, contradictory one of the other. However, I have had a detailed regard to the defendant's submissions. At no point does the defendant appear to contest that the plaintiff's condition was caused by her exposure to particular stresses and stressors at work and in particular in the course of her work as an undercover operative. The defendant's submissions make it plain that the issue is one about the relationship, if any, between a breach by the defendant of any duty it owed to the plaintiff in the course of her employment and her medical condition, rather than the relationship between that condition and her employment simpliciter. In other words, the issue is the causation issue numbered 5 in par [121] above, and not a separate issue in contradiction of the concession appearing in the quoted portion of the transcript.

The only injuries and disabilities of which the plaintiff complains are psychological or psychiatric in nature. To the extent that the plaintiff has manifested any physical signs, or complained of physical symptoms, such as excessive sweating, fatigue or similar, they are clearly a function of her underlying mental condition. The expert medical evidence before me deals with the cause of that condition in considerable detail. Against the possibility that my understanding of the way in which the defendant puts its case on this issue is erroneous, I find as a fact that the plaintiff's injuries and disabilities were caused in the course of her employment or, in the words of the defendant, by the plaintiff being hurt on duty. This is for the following reasons.

The plaintiff had been a patient of Triple 333 Medical Centre since 1991. On 3 October 1999 Dr Wong saw her at that practice specifically for complaints regarding her employment as an undercover police officer. She gave a history of having worked undercover for the police force for the previous 15 years and that she had been having problems at work. On presentation the plaintiff was very worried and agitated and on the point of breaking down. She was very distressed, teary, restless and anxious. She was in need of a break from her work and a psychiatric referral. The plaintiff informed the doctor that she did not want time off work and that she "was too distressed to speak". On 6 March 2000 the plaintiff was referred to Dr Sharah and subsequently to Dr Selwyn-Smith.

The plaintiff presented herself to Dr Sharah on 13 March 2000. She was then observed to be suffering from anxiety in the course of which she felt herself shaking, unable to sleep well, exhausted, and with her mind racing with feelings of imminent loss of self-control. She reported to the doctor that that had been happening to her for a couple of years and that she had worked in a dangerous occupation "as an undercover agent for the police". He observed depression and anxiety to be present "to some degree".

Dr Sharah last saw the plaintiff on 14 March 2003. On 18 October 2004 he expressed the opinion that the "anxiety [the plaintiff] suffers and the panic attacks are associated with the type of work she has done, which involved great danger. The threat from a vicious criminal to her has precipitated the present state of agitation". He described the plaintiff's prognosis as good if she received the treatment that she needed, namely psychotherapy, medication and a rest from work and possible adjustment in her work situation.

Dr Selwyn-Smith saw the plaintiff for the first time on 10 April 2000. She reported that she had been involved in entrapment work and that she had been threatened. Initially she reported no worries about this. The plaintiff told the doctor about "CE-1" and other incidents. Dr Selwyn-Smith recorded that "[t]hese and other experiences have clearly taken their toll and she has developed marked agitation, anxiety and impairments in her concentration. There is also a history of chest pain and a general inability to relax". The doctor diagnosed an Adjustment Disorder with marked features of anxiety admixed with depression.

By 3 October 2002 Dr Selwyn-Smith reported that he was continuing to care for the plaintiff in regard to what he described as her Post-Traumatic Stress Disorder. He considered that she was not functioning well and required more intensive treatment. He recorded that she was "preoccupied with a number of traumatic events pertaining to her work as an undercover police officer, and is experiencing troubled dreams and nightmares". He prescribed Zoloft 200mg per day. He said, "[s]he has a definite hurt on duty claim and I have encouraged her to submit details in that regard".

The plaintiff continued under the doctor's care. On 18 August 2003 he recorded that during the plaintiff's time in Orange she became aware that she was "emotionally impacted by her work" and that she had informed an officer that she was experiencing emotional difficulties. She is said to have contacted the welfare section and to have been reassured. The plaintiff complained that she was mispronouncing words and that she had trouble relating socially. She was ruminating about children affected by drugs, a notion redolent of some scenes she had experienced first hand whilst undercover. Doctor Selwyn-Smith expressed the following opinion about the plaintiff: "As stated, my original diagnosis was that of an Adjustment Disorder with Depressed and Anxious Mood. This essentially refers to the development of significant emotional and behavioural symptomatologies in response to marked psychosocial stressors. The type of work that [the plaintiff] had been exposed to had significantly taken its toll on her and she had developed clinically significant symptoms with marked distress and overall impairments in her interpersonal, social and occupational functioning. She had also developed marked anxiety with an apprehensive expectation that harm was going to befall her. She was having difficulty focusing and concentrating. There was accompanying sleep disturbances. Her mood was depressed. She had become increasingly socially withdrawn. Her appetite had increased and she had gained a significant degree of weight. Her cigarette consumption had also increased. She had become chronically fatigued and tired and was decreasingly active, effective and productive".

The doctor said that he had altered his diagnosis to one of chronic PTSD. He said in his opinion the plaintiff had "been impacted to a marked extent by being exposed to harrowing experiences that have resulted in threatened death". He identified specific work-based incidents that in his opinion had substantially contributed to the development of her condition. It was his view that the primary stressor that had caused the plaintiff to have continuing sick leave essentially comprised an accumulation of the multiple stressors that she had been exposed to and outlined in the hurt on duty submission that is now part of exhibit "A". He said, "[h]er work involving CE-1 ha[d] been particularly traumatic". Significantly, Dr Selwyn-Smith said that the history obtained by him did not reveal that there were any competing causes for the plaintiff's PTSD. She was incapacitated for work in light of her psychological impairments and was a candidate for psychiatric hospitalisation. As things ultimately transpired, that is what occurred when the plaintiff was admitted to the St John of God Hospital in Richmond on 5 March 2007 for just over three weeks with beneficial results.

Dr Selwyn-Smith continued to report regularly to the plaintiff's solicitors in terms not dissimilar to the foregoing summary. This includes his very long and equally significant report dated 15 June 2006.

The doctor was not cross-examined in a way to suggest that the plaintiff's work was not the cause of her psychiatric condition except in one relatively minor respect. It was suggested to Dr Selwyn-Smith that the plaintiff had not in fact engaged in police undercover work for the whole of her 15 or so years in the police service so that to the extent that his conclusions appeared to be based upon such an assumption they would have to be modified. The doctor responded as follows: "I think, I think it is the nature of the work that is traumatic, not necessarily the duration of the work. I mean, certainly I would expect someone doing undercover work for a reasonable length of time is going to be stressed to a degree but not necessarily experience post traumatic stress disorder, that is my point. You only need one significant event to develop post traumatic stress disorder. My understanding of the history was that this lady had, if you will, been exposed to a number of sub-threshold events which were certainly significant but which did not necessarily decompensate her. But taken together in totality, if you will, the [CE-1] event in particular, the Operation Rhino event in particular, you talked about before the arrest of Ozgur and being bitten in of itself being traumatic. I had also, Ozgur certainly threatened her, she had at least two threats on her life, she had a guard to take her home. Taken in totality this in my judgment is far more significant than the exact number of hours, weeks, days, months she worked as an undercover officer."

At page 264 of the transcript the following material appears: "MENZIES: One matter before I proceed, your Honour, and it relates to cross-examination of Professor McFarlane. The State admits for the purposes of these proceedings that the psychological disorder that the plaintiff asserts she suffers from, however it may so be described, was materially contributed to by her employment. That may or may not dispose of matters that are worrying my learned friend but I do not intend to tax Professor McFarlane on that issue."

I have earlier referred to a similar statement given on behalf of the defendant during the proceedings. These statements are sufficient to dispose of the issue of causation of the plaintiff's medical condition in the physical, as opposed to the legal, sense. I note, however, that upon the basis of at least the material that I have reviewed that I would in any event have found that the plaintiff sustained her psychiatric condition in the course of her employment with the defendant. Was the plaintiff's psychiatric injury reasonably foreseeable?

The defendant's concession that during the entire period that the plaintiff was a New South Wales police officer it was aware that undercover work could give rise to a risk of psychiatric injury is not attended by significant controversy. In the present case the defendant contested that the plaintiff's psychiatric injuries were relevantly foreseeable upon the basis that she made no complaint about anything that would have put it on notice that she was encountering any difficulties with her work or that she was experiencing problems with her health as a consequence.

It is beyond contest that the plaintiff did not inform the defendant that she was unwell or that she was or felt unable to perform her duties by reason of her health until her conversation with Det Donnelly following the incident in the park in Orange during Operation Rhino. The plaintiff maintained a stoic silence about all aspects of the way in which her work affected her prior to that time, either because she thought that she could cope alone or because she reasoned that any complaint by her would be perceived by her employer as a sign of weakness with career limiting consequences. She had no contact with welfare. It was one of the matters not in dispute in the proceedings (with the possible exception of the conversation with Mr George in 1998 – see par [28] above) that at no time before that conversation in 1999 had the plaintiff revealed to any other police officer in a supervisory position her concerns about her capacity to do the work of an undercover operative.

During the course of submissions I raised with the defendant the suggestion that the plaintiff's case appeared to proceed upon the basis that in cases where employees such as the plaintiff put on a brave face, the defendant should have operated upon the assumption that everyone doing the plaintiff's work would have been subject to the stresses that afflicted her and that the defendant should, in effect, have operated accordingly. In other words, the reasonable foreseeability of injury in the case of the present plaintiff could not be assessed simply by reference to the question of whether or not the plaintiff informed the defendant of her condition. I was referred in response to the decision of the High Court of Australia in Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44. It was submitted that the principle in that case applies until such time as the defendant becomes aware that there is something wrong and that in the present case that did not occur until four years after the injury had been suffered, by which time the plaintiff was no longer exposed to the risk of further injury.

It will be recalled that in that case it was held that a reasonable person in the position of the employer would not have foreseen the risk of psychiatric injury to its employee. The Court said the following: "[26] The Full Court was right to conclude that a reasonable person in the position of the employer would not have foreseen the risk of psychiatric injury to the appellant. Because the appellant did not prove that the employer ought reasonably to have foreseen that she was at risk of suffering psychiatric injury as a result of performing her duties at work, her claim in negligence should have failed at trial. . . [27] There are two reasons why the Full Court was right to reach the conclusion it did. First, the appellant agreed to perform the duties which were a cause of her injury. Secondly, the employer had no reason to suspect that the appellant was at risk of psychiatric injury.

The plaintiff submitted that Koehler was distinguishable on the facts and that the correct test remained one that invited the inquiry of whether or not a reasonable person in the defendant's position would have foreseen that undercover work of the sort performed by her involved a risk of injury to her or to a class of persons that included her. The plaintiff emphasised passages such as the following from State of New South Wales v Fahy [2006] NSWCA 64 per Spigelman CJ in the New South Wales Court of Appeal: "[11] On the issue of reasonable foreseeability, whether with respect to duty or breach, the Appellant placed significant reliance on the High Court judgment in Koehler v Cerebos supra. The Appellant stressed the fact that the Respondent had been exposed to a wide range of situations of considerable stress on other occasions during her period of service. She had never manifested any inability to cope. Accordingly, it was submitted, it was not reasonably foreseeable that she would suffer from a psychiatric injury. [12] In my opinion, the kind of traumatic incident involved in the present case is not comparable to the circumstances considered by the High Court in Koehler v Cerebos. There the issue was whether or not it was reasonably foreseeable that the plaintiff would suffer psychiatric illness by reason of an excessive workload. Exposure to human suffering of the character involved in the present case is of a completely different order."

The plaintiff also relied upon some passages from the dissenting judgment of Kirby J in New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021 at [106] and [107] as follows: "[106] The decision in Shirt is so well known, and frequently applied, that it was not cited by name in the Court of Appeal's reasons. But in the statements of the ambit of the duty of care, both of Spigelman CJ and of Basten JA, the resonances of Shirt can clearly be observed. Moreover, in each of those reasons, care was taken to distinguish the then recent authority of this Court in Koehler v Cerebos (Australia) Ltd . That was a case in which this Court unanimously rejected an appeal by an employee who claimed to have been exposed to the risk of psychiatric injury as a consequence of her employment duties. Koehler was plainly distinguishable on the facts. But it was common, both to the joint reasons in Koehler and, more reluctantly, the concurring reasons of Callinan J in that case, that the proper approach to the ascertainment of the duty of care owed by the employer to the employee (and whether it was breached) was that stated in Shirt . [107] With Koehler fresh in mind, the Court of Appeal therefore approached the task before it by asking the questions mandated in the familiar passage in the reasons of Mason J in Shirt , which Callinan J in Koehler had ruefully observed had "been constantly applied throughout this country and in this Court since it was decided"."

In my view there were in the present case very good reasons for the defendant to suspect risk to the plaintiff's psychiatric health. First, the risks to the health of undercover operatives were known to the defendant as a general proposition. This was not the case in Koehler . The defendant's concession about the risks generally is inconsistent with the adoption of a position that it could not reasonably have foreseen the risk to the plaintiff in particular. Secondly, the work performed was inherently stressful. The plaintiff herself gave evidence of many situations in which she found herself in the company of potentially violent and dangerous individuals in contrived circumstances over extended periods with the over-riding objective of deceiving them. This ought reasonably to have been known to the defendant to be stressful and potentially injurious to the plaintiff, manifesting as psychiatric illness, as well as to any similarly employed officer. Thirdly, the ongoing problems associated with the need to lead a double life and to alternate between two or among multiple identities and personalities is patently distinguishable from the stresses that confronted the plaintiff in Koehler . While the situations to which the plaintiff was exposed were on one view not of the proportions experienced by the plaintiff in Fahy , they were not insignificant or so benign as to permit the defendant in this case to maintain the position that there were no reasons to suspect the existence of a risk to her psychiatric health as a consequence of her exposure to them. Finally, and perhaps most significantly, the defendant was in possession of, or had access to, literature and expert opinions that warned of the risk of psychiatric injury as the result of exposure to the stresses of undercover police work. Exhibit "E" is a large bundle of documents attesting to this fact. By way of example, psychological screening and testing of applicants for permanent duty as undercover officers was in place before 1991 when the defendant's Psychology Unit was utilising such tests "to screen out inappropriate applicants and to monitor the psychological well-being of those selected, by testing and interviewing them on a regular basis". Exhibit "E" contains references to many studies including "PTSD is a recognised illness associated with exposure to high levels of acute or cumulative stress (Beckley, 1994)".

I find that there was a reasonably foreseeable risk that the plaintiff would suffer psychiatric injury. This is not a case, for example, where the stresses of undercover work were foreseeable but the risk of consequent psychiatric injury was not. What was the nature (scope and content) of the duty owed to the plaintiff?

In State of New South Wales v Seedsman [2000] NSWCA 119 Spigelman CJ said at [60] and [62]: "[60] . . . The law of negligence is concerned with human beings. It is not concerned with specific occupations. Where employees in two occupations have exposures to similar risks, employers in one occupation can reasonably be expected to have regard to the experiences of employers in the other occupation.

In the same case at pars [154], [162], [163] and [167], Mason P said: "[154] In its written submissions the appellant accepted the respondent's formulation of the relevant law in par 5 of her submissions that: 'There is nothing inconsistent with the established legal principles concerning the relationship of employer and employee that excludes, as a matter of law, from the employer's duty to the employee, the need to exercise reasonable care to avoid unnecessary risk of injury in the form of a recognisable psychiatric illness where the type or kind of recognisable psychiatric illness is foreseeable.' [162] The employment relationship is one of the settled categories where a duty of care has never been in issue. So clear is the duty that it is non-delegable. In Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 74 ALJR 1 Hayne J said (at [276]) (citation omitted): 'The common law imposes a duty on the employer because the employer is in a position to direct another to go in harm's way and to do so in circumstances over which that employer can exercise control. The duty is, of course, not absolute; it is the duty "of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury'. [163] The duty "extends to taking reasonable steps in accident prevention and not waiting for accidents to happen before safeguarding the health and safety of employees" ( Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 at [101] per Kirby J).

These passages were cited with approval by Stein JA in McDonald v State of New South Wales [2001] NSWCA 303 at [46] – [47]. At [48] he added: "[48] It is clear that the duty of care owed by the State of New South Wales to police officers is in no way distinguishable from that owed by any other employer to its employees."

It is in the nature of the way in which the plaintiff puts her case that she does not allege that she was exposed to a risk, or to multiple risks, of injury that were discrete episodes that caused or led to the immediate and recognisable infliction of damage. For example, this is not a case of an alleged failure by an employer to provide adequate equipment to be utilised in the performance of a dangerous task, such as providing goggles to a welder or a safety harness to a linesman.

Nor does the plaintiff make any complaint that by its very nature undercover police work was so intrinsically stressful and dangerous that it should never have been undertaken by anyone under any circumstances. Much has been written in the cases in this area of the law and in the literature about the nature of police work and the risks associated with the requirement of police officers to deal with a wide and often unpredictable range of dangerous situations, including criminals armed with lethal weapons and mentally unstable and irrational members of the community. The circumstances identified in cases like Seedsman and Fahy and many others are examples of the stressful, unpleasant and dangerous work required of serving police officers in the course of their duty. In none of these cases has it been suggested that the exposure of police to these incidents in the course of their work was of itself and without more a breach of the duty of care owed to them in the circumstances. Nor could it be. Acceptance of the likelihood, if not the reasonable certainty, that police work will involve exposure to such situations is taken as one of the given and necessary incidents of such employment.

The same applies in the present case to the relatively narrow and specialised field of undercover police work. The plaintiff does not contend that simply requiring policemen or policewomen to expose themselves to the (arguably) increased risks to their personal safety arising from the performance of work as undercover operatives is of itself a failure by the defendant in this case to conform to its obligations to provide a safe system of work. As with police work in general, no such claim would be tenable. The particular and obvious risks associated with undercover work are not the risks against and from which the plaintiff alleges the defendant negligently failed to protect her. On the contrary, the scope and content of the duty for which the plaintiff contends is formulated by reference to the uncontroversial proposition that the plaintiff would be required, and agreed, to perform work for the defendant as an undercover officer notwithstanding the fact that it attracted further and different risks than those associated with mainstream policing. Accordingly, by way of example, it is no part of the plaintiff's case that the defendant was negligent because it required her to pose as the wife of a dangerous man with possible links to unsolved murders or to take up an isolated position in a park in a country town to await the arrival of a drug dealer who "could pick a copper a mile off", or anything else that she was required to do in fact. The plaintiff does not, as it were, allege that at some point in her undercover career the defendant overstepped the bounds of what was reasonable by exposing her to dangers that were by definition unacceptable under any circumstances.

In every sense the case that the plaintiff brings is derivative of the work that she agreed without complaint to perform. The allegedly unsafe system that the defendant failed to devise, institute or maintain was not concerned with any aspects of the plaintiff's work that would be described as 'operational'. For example, the proposition that police officers should always work with a partner or 'buddy' in Fahy was related to the performance of operational policing. There is no analogy in the present case with such a proposition. The plaintiff's contentions in the present case bring forward the consideration of a system designed to counter the effects of exposure to particular aspects of operational (undercover) policing that are for the purposes of the present case treated as unexceptional.

The foreseeable risk that the plaintiff might suffer psychiatric injury as the result of her work as an undercover officer brings forth, according to the way that the plaintiff puts her case , the formulation of a duty that included at least the following incidents. First, an obligation to provide the plaintiff with access to adequate and appropriate psychological counselling, support and treatment at or through her work or at the defendant's expense. The psychological and psychiatric sequelae were such that the duty of care is said to contain such an element.

Secondly, an obligation to provide for the re-integration of undercover police officers into mainstream policing following completion of their undercover work. It seems to be fundamental to the relationship of employer and employee in the context of the present plaintiff and defendant that the plaintiff was employed as a police officer first and as an undercover officer second. If there is a limit upon the time during which undercover work is, or should be, performed, then return to 'normal' duties in a structured way would appear to be an accepted and predictable incident of that relationship. The plaintiff contends that the defendant's duty ought to have extended to include the obligation to recognise and accommodate the fact that there were potential problems associated not merely with performance of undercover work but with its cessation.

Thirdly, an obligation to allocate or assign to undercover work only those officers whose credentials and capabilities were consistent with performance of such duties without exposing them to the risk of unnecessary or avoidable harm. It does not go without saying that suitability for work as a serving police officer is coextensive with suitability for work as an undercover officer. The defendant's duty of care to provide and maintain a safe system of work so as to avoid injury to the undercover officer is said to require that selection for such work should be informed by an appreciation of the particular strengths and weaknesses of those individuals who are being considered.

Fourthly, candidates for undercover work should be adequately trained not only in the performance of undercover work, a proposition which presumably is beyond doubt, but relevantly for present purposes in the techniques of stress management and the recognition of possible psychological and psychiatric symptoms or signs. Specialised work such as undercover police work is capable of producing unique difficulties for those who perform it, which an adequate and safe system would be required to address. This is said to be no less than a practical recognition of the fact that " the employer is in a position to direct another to go in harm's way and to do so in circumstances over which that employer can exercise control ".

The scope and content of the defendant's duty for which the plaintiff contends in this case presumably includes other incidents. It is unnecessary for present purposes to attempt to formulate or anticipate what they might be. The plaintiff's propositions about the precise nature of the duty she was owed are scrutinised next in the context of a consideration of the question of breach of duty, bearing in mind that the scope and content of a duty of care correspond to what should be done in order to discharge it. Did the defendant breach the duty of care that it owed to the plaintiff in the circumstances?

In Mullany and Handford's Tort Liability for Psychiatric Damage, 2nd ed, (2006) at par [22.540] the learned authors state: "[22.540] In determining whether the employer was negligent, the court must act as they normally do in negligence cases, applying the 'calculus' approach and weighing factors such as the magnitude of the risk, the gravity of the harm, the cost and practicability of preventing it, and the end to be achieved. The size and scope of the employer's operation will be relevant, as also are the interests of other employees. It has been said that the employer can only be expected to take steps which are likely to do some good, and that there is no duty to sack a worker who wants to go on working." (Citations omitted)

In New South Wales v Fahy (supra) at par [62], Gummow and Hayne JJ said this: "The State submitted that the relevant risk to consider in determining whether Ms Fahy had established that there had been a breach of duty to provide a safe system of work was whether "a police officer might suffer a psychiatric injury if that officer's partner did not remain to provide support whilst the officer was exposed to trauma whilst assisting a doctor". For the reasons given earlier, that formulates the relevant risk from the wrong perspective. It seeks to ask, in effect, whether the particular mechanism which led to the injury of which the plaintiff complained was a foreseeable risk. But breach of duty requires consideration of whether the defendant's conduct (which it is to be assumed is identified in this case as the formulation of systems of work for police officers) involved a risk of injury to the plaintiff. And here, there could be no doubt that police work involved a risk of psychiatric injury to police officers. The inquiry that was then to be undertaken was "what a reasonable man would do by way of response to the risk". The focus must fall upon how police officers should have been instructed to perform their work, not upon what steps the Police Service should have taken to provide support for officers who had been exposed to traumatic incidents. It is necessary, therefore, to identify the system of work that should have been prescribed in response to the risk of psychiatric injury."

In the present case, the system of work that the plaintiff contends the defendant should have prescribed in response to the risk of psychiatric injury to her is identified as consisting of one or some of the nine matters formulated as particulars of negligence in par [3] above. Each party called lay and expert evidence with respect to the plaintiff's claim that the defendant had breached its duty of care to take proper care for her safety by failing to devise, institute or maintain that system of work. That evidence is considered in the paragraphs that follow. Michael Drury

Former police officer Michael Drury furnished two statements and gave oral evidence in the proceedings. Mr Drury's qualifications and experience in matters of undercover policing are extensive and impressive and were unchallenged. Indeed, Mr Drury has been qualified by the present defendant to give evidence in this Court on its behalf in other similar cases in the past. It is timely to recall what those qualifications and experience involve.

Mr Drury joined the New South Wales police in 1972 and retired as a detective inspector in March 2000. He worked for in excess of 20 years in the fields of drugs and organised crime at the highest levels of specialised investigation. During that time he performed duties as an undercover operative, undercover supervisor, investigating detective and commander of investigations, among other roles. He assisted in course design and delivered undercover investigational training to the South Australian Police Department and the Queensland Police Department.

In 1988 he returned from two years' work in the United States and was required to design and implement the first formal training programme into undercover investigational technique within the New South Wales Police Service. This course was known as the New South Wales Police Special Forces (Undercover) Education Programme and was designed specifically for the training of all undercover operatives and supervisors within the New South Wales Police Service. From 1988 to the mid -1990s Mr Drury was the director of training for all courses until the programme was handed over to other senior police. The course curriculum and syllabus contained what he described as "subject competencies" dealing with the supervision of undercover operatives by undercover supervisors. Additional subjects included stress management and appreciation, undercover investigation management, operational briefings, operational execution techniques and operational debriefing techniques. There were many other areas of instruction as well.

Mr Drury said that the academic core purpose of the course was to train all police from within the New South Wales Police Service who were to be deployed as undercover operatives and supervisors "so that they would better understand the legal environment in which they were to work in addition to psychological problems that may be encountered". He said that from as early as 1986 the police service was aware that undercover police work was "productive of stress and psychological sequelae".

Mr Drury has known the plaintiff since early 1988 when she worked as an undercover operative within the Undercover Unit (Special Forces Unit) at the Drug Law Enforcement Bureau. That was at that time the only such unit of its type within the New South Wales Police Service that deployed police as operatives using the undercover investigation technique. The plaintiff was an undercover operative.

In late 1988 the first New South Wales Police Special Forces (Undercover) Education Course was conducted at the Police Academy at Goulburn. The plaintiff was a student operative within that course. Mr Drury said that she successfully completed that course "with outstanding results". He also said the following: "[A]s the Director of Training . . . I was in an ideal position to often observe the Plaintiff in her career development in addition to receiving continual updates from her peers and Supervisors. I formed the opinion that the Plaintiff was an outstanding Officer and [in the] early 1990s [I] formally approached her and made the appropriate arrangements for her to attend the ongoing Undercover Training Program, Goulburn Police Academy, as a Lecturer upon that course".

Mr Drury said that in late 1988 there were no formal systems within the New South Wales Police Service with regard to undercover police officers dealing with such areas as psychological monitoring, psychological assessment, proper debriefings after operation, psychological counselling, rotation in duty or proper integration into other police duty areas. He said that with respect to the first four of those areas the New South Wales Police Service made what he called "rapid advancements". With respect to rotation and integration, however, he said that advancement was slow, with significant problems in these areas effectively still evident when the plaintiff ceased work.

Mr Drury also said this: "18 …Psychological monitoring and assessment of Undercover Operatives and Supervisors became more common with the commencement of the 1988 Undercover Training program within the NSW Police. In fact, in my design of the syllabus of that course, I deliberately identified and included within the curriculum the involvement of the Police Doctor and members of the Psychology Branch of the NSW Police Service. I deliberately promoted these specialty medical services to all Students within the Course and continually encouraged informal and formal interaction of these groups outside of course dates. There were great advancements within the NSW Police Service from the late 1980’s onwards; so that identified problems in these areas of policing could be managed. 19 … The NSW Police Service was the leading Police Department in Australia in this area of employee support in my opinion".

Mr Drury also adverted to the question raised by the plaintiff concerning the tendency of police officers to mask or hide psychological or psychiatric problems. He said: "20 But, I am mindful of the skills of Undercover Police as Operatives and or Supervisors and their ability if focused, to disguise such psychological problems in an attempt to protect their careers in this usually exciting field of policing. There has always prevailed an atmosphere within the policing profession that, once psychological problems and or difficulties have been identified within a Police Officer, this can have a profound negative impact upon their general policing career".

Mr Drury said that around 1991 the plaintiff possessed advanced skills at the highest level as an undercover operative, and her selection by management to carry out undercover work was logical. He said that she would have been in high demand. He said that the recommended approach would have been a minor blend of undercover duties with her ongoing mainstream career development. The plaintiff should never have been allowed to work undercover in any area where she was engaged as a detective except in times of an extreme emergency. Such a course would have been reckless and harmful to the plaintiff due to the increased risk of being identified as a police officer.

Mr Drury commented upon the plaintiff's role as a drug purchaser in Kings Cross in 1986. He said that a street level purchase of illicit drugs by (invariably) young officers at that time was prevalent as an "investigation initiative". He said that the plaintiff’s "tenure" at Kings Cross "was not unusually long".

Mr Drury reviewed a chronology of the undercover work performed by the plaintiff thereafter. He said, "the investigation requirements that were placed upon [her] were typical of undercover work". He said that her duties "would have been conducted by the plaintiff under close undercover supervisor management". He said generally that an absence of such supervisory management would have been negligent.

At par [46] of his 22 September 2006 report, Mr Drury expressed the following opinion: "In all the Plaintiff is claiming that she was engaged in Undercover Investigation work at an advanced level and often in environments of sustained and significant stress. That period commenced in January 1988 and continued full time then part time until 1999. In all a period of some 11 years. I am of the opinion that this is an extremely long period of time for any person, including the Plaintiff to be working Undercover. Such a long period would attract substantial compounded stress for any individual, in addition to a substantial dislocation of normal career development for the Plaintiff within mainstream policing."

With respect to the effect upon the plaintiff's preferred or intended career path to which Mr Drury referred, it will be recalled that the plaintiff’s evidence was captured in the following passage: "Q. What was your concern about your future career? A. I, my plan for my future career was to go into detective work. That is what I wanted to do. I was, and at that stage to go into detective work you had to do what is called the bull-ring to get in the eligibility list to go into criminal investigation work and then you had to work in a plain clothes position at a police station for a period of time, I think it used to be two years, two years or sometimes three years, I don't know, until a position came up. So I saw my career path, I wanted to become a detective and I had been told by other officers that I would be better utilised in the detective field rather than operationally in general duties and I had lots of encouragement in that regard. So I knew what I had to do was complete the bull-ring and then wait for a position to come up in a plain clothes position at a local police station, then undertake probably two years training as a plain clothes constable. Because only if you had two years, I think it was two years, only if you had two years training, plain clothes work were you then eligible to undertake the detective's course. That is how I wanted my career path to go. That is why I had such a dilemma, because one of the paths was if I went to the undercover section, regardless of the work I had performed previously, that wasn't counted as a plain clothes position and that wouldn't allow me to be eligible for the detective's course and that wouldn't allow me to be trained in plain clothes work."

It is a fair summary of Mr Drury's opinions that none of the work upon which the plaintiff was required to engage as an undercover police officer was unusual or extraordinary in the sense of being beyond the bounds of what ought reasonably to have been expected of her in that role in the circumstances. Mr Drury was critical of the absence of proper supervision of the plaintiff when she performed her undercover roles and of insignificant or inadequate post-operational debriefing. (He was also critical of any simultaneous combination of undercover work and administrative investigative responsibilities, although the plaintiff did not ultimately press this as part of her case). Each of these matters was likely in his opinion to increase to unacceptable levels the normal stress experienced by an undercover operative. He was unfailingly praiseworthy of the plaintiff's intelligence, dedication and exceptional abilities in the performance of undercover police work.

The plaintiff's case was reiterated in the course of a discussion with counsel on the fifth day of the hearing. Mr Burbidge of Queens Counsel who, with Mr Shoebridge of counsel, appeared for the plaintiff, summarised the plaintiff's case in the following way. He said first, that the case made by the plaintiff is that she had been or was an undercover operative for a significant period of time in the order of 13 to 15 years although not full-time for the whole period. Secondly, that during that time she was exposed to a great number of highly stressful situations. Some of those stressful situations came about because of the system under which the plaintiff was required to work and the absence of any methodology by which her deteriorating health could be observed. Mr Burbidge said that when it was observed no real action was taken beyond saying, "Are you all right? Do you wish us to do something for you?" As a consequence, the plaintiff sustained, by an accretion of pressure over a significant period of time in entirely foreseeable circumstances, the formation of a psychological and psychiatric condition. Greta Crowe

In further support of this case the plaintiff called Greta Crowe, a serving officer with the police service who had formerly undertaken undercover work with the plaintiff in 1989. She provided a written statement that was tendered in the proceedings. Ms Crowe said that at the time she commenced to do undercover work she had no experience and had received no training. She said that she was simply given the name, or shown a photograph, of targets and told to attempt to purchase drugs from them. Ms Crowe said that at these times she and the plaintiff were "generally unsupervised" and "unsupported". However, on other occasions she said "we were supported from time to time by surveillance police on specific operations". She did not agree that debriefings occurred at meals following operations. She denied that formal debriefings ever occurred.

Ms Crowe recalled many of the incidents to which the plaintiff referred in her own evidence. There is little dispute about almost all of the plaintiff's recollections of the work she was required to perform as an undercover officer and the need for corroboration of these matters does not assume great importance in these proceedings. Ms Crowe was, however, also able to describe the effects upon her of some of the operations that she and the plaintiff worked on together. She said: "It was obvious to me that the situations we were routinely placed in during these operations, such as getting into motor vehicles with criminals, carrying sums of money to conduct drug purchases, not being armed and out of communication, were dangerous situations where serious injury or death could result".

In September 1988 Ms Crowe also undertook the Special Forces Undercover Education Course at the Goulburn Police Academy. She described this course as "very stressful, as students were constantly being tested, assessed and evaluated". She said the course "was intense and consisted of lectures during the day and role playing exercises at night". Ms Crowe recalled, "there were a lot of lectures on drug use, pricing and terminology, as well as undercover techniques". She also recalled that "there may have . . . been a lecture on dealing with stress generated by undercover work".

When Ms Crowe left the undercover unit she was not offered any form of psychological counselling or de-briefing. She did not recall the plaintiff ever telling her that she was suffering from stress as a result of undercover work, apart from one occasion when the plaintiff learnt that a man in gaol had threatened her life. Martin Brown

Martin Brown was in the New South Wales Police Service between 1979 and 2007 and retired with the rank of Detective Inspector. He joined the undercover unit in 1989. He said that prior to doing so he did not receive any specialist training. He undertook the course conducted by Mr Drury in 1990. By that stage he was already a Detective Senior Constable and had been in the police service for ten years. He worked as an undercover operative and was given on-the-job training, including training by other undercover officers. He described this training as follows: "Q. Can you describe to the Court what training they gave you? A. It was along the lines of ensuring that I was familiar with my quantities, weights, prices; the type of drugs on the market; what they were referred to as some of their slang names. It was along those lines."

Mr Brown said that operatives were supervised from time to time but that in general "the role of the supervisor was primarily to provide operatives with money or specialist equipment that may be required for a particular operation". It was not his experience "that the role of the supervisor was someone you could go and speak to to help cope with the impact of stressful situations". He did agree, however, that the role of the supervisor was as someone to whom an operative could turn to bring an operation to an end if it were thought to be too dangerous.

(There was material to which Mr Brown referred in his evidence suggesting that the requirement that undercover operatives wear listening devices from time to time exposed them to danger. However, it was expressly announced during argument in Mr Brown's absence, if it were not otherwise apparent from the plaintiff's particulars of negligence, that it was no part of her case that the defendant was somehow negligent for failing to provide her with appropriate listening device equipment, or indeed any other equipment, of some sort).

At par [26] of his statement Mr Brown said that he did not receive any counselling or psychiatric treatment whilst he was in the undercover unit. He agreed that he was aware that there existed a welfare unit and that he was lectured to by psychologists from that unit during the undercover course. He agreed that the course "was a very good course" as far as he was concerned. He agreed that he was also aware that there was the police medical officer that police could go to if they were suffering psychological stress. His evidence about this included the following: "Q. But you are aware and were aware in 1990 that there was a psychology unit or a welfare unit? A. Yes. Q. That was available to you as an operative to deal with the risk of psychological stress, wasn't there? A. Yes."

Mr Brown was also asked about training and preparation of undercover operatives to prepare them to cope with stressful situations in their work. He gave the following answers: "Q. The undercover course included, did it not, practical operations? A. Is this in 1990? Q. Yes? A. There was operations run, yes. Q. And those practical operations that were conducted were to prepare both operatives and supervisors for situations that they would face in real life, weren't they? A. I suppose, yeah, this could be construed in some of the operations, not all of them, yes. Q. But some at least-- A. The major one at the end of the course probably, yes."

Mr Brown would not agree, however, that the course that he undertook in 1990 and the courses that were conducted in the 1990s exposed operatives to 'scenarios' that they were likely to face during their operations. He agreed that the practical operation exercises had an element of the situations that undercover operatives might be expected to face in real life but he denied that they would prepare people to deal with those situations. Alwyn Moore

Alwyn Moore retired from the police service in 2006 with the rank of Detective Sergeant. He was critical of the content of the undercover course to the extent that it only lightly touched upon issues of mental health and work related stress. His attention was directed to the course outline that related to the course he undertook and was asked a series of questions as appears below: "Q. As I said to you a little while ago, Mr Moore, it's 20 years ago and so it is hardly surprising that your recollections is not perfect after 20 years, and I am not being critical. A. Yes. Q. Having had a look at what in fact you studied in 1988, in preparing your statement and particularly when you referred to the minimal input with respect to the welfare of undercover operatives and that guest lecturers touched on repercussions from the work of outcomes on matters of stress and the like, that with the passage of time you in fact overlooked, have forgotten about what the course notes would reveal you were taught? A. Yes. Q. Part of what you were taught as a supervisor at that course was the importance of the relationship between the supervisor and the undercover operative? A. Yes. Q. And that part of the role of the supervisor was effectively a welfare role to generally be conscious of, first, the safety of the undercover operative? A. Yes. Q. And second, that the undercover operative was involved in work which was stressful and dangerous? A. Yes. Q. And that part of your role as the supervisor was to be alert to anything which might indicate to you that the undercover operative was suffering as a consequence of the dangers and stresses? A. As best as possible, yes. Q. Obviously that's going to depend in part or in large part on first the rapport that you develop with your undercover operative? A. Yes. Q. And the willingness or otherwise of the undercover operative to reveal if they have got problems? A. Yes, that's human nature."

Mr Moore agreed that one of the things that had been taught in the undercover course was that there was a need within operational parameters for there to be continuous involvement between the operative and the supervisor. Part of his role as a supervisor was to operate as a buffer between any pressure that the case officer might be exerting to get the job done and the safety and security needs of the undercover operative. He agreed that he had been taught also that "the safety of the undercover officer was primary".

Mr Moore gave evidence about the voluntariness of the operative's role: "Q. But certainly if the operative was expressing in strong terms that they didn't want to go ahead with something, the operative wasn't forced. Isn't that right? A. I would agree with that, yes." Tracie Williams

Tracie Williams joined the Police Force as a junior trainee in 1982. She came to know the plaintiff and worked with her from as early as 1991 when the plaintiff joined the detectives at Parramatta police station. She developed a friendship with the plaintiff that she still maintains.

Ms Williams recalled that at about the time that she (Ms Williams) left Parramatta, the plaintiff was promoted to the rank of sergeant. However, Ms Williams observed that, in her words, the plaintiff "was not coping and was falling apart". Paragraph 17 of Ms Williams' statement was as follows; "17. However, in the late 1990s and subsequently, [the plaintiff] appeared to be coming more stressed and less able to cope with her heavy workload. She was receiving very little support from other members of the station. I observed that she was given very little respect by other officers, even when she was relieving Duty Officer. I was aware that [the plaintiff] was not well thought of or respected by other members of the station".

Ms Williams gave other examples of what she described as "derogatory comments" and "an increase in incidence of disrespect towards [the plaintiff] by senior members of the station". Ms Williams said she observed this particularly in the last 12 months before she left in 2000 when she went on sick leave. For example, she confirmed evidence given by the plaintiff about an issue that arose concerning the provision of a car to the plaintiff to enable her to drive to Orange to give evidence. Ms Williams was present at the meeting when this was discussed. She said, "I recall the comments made by members of the meeting were very derogatory and in my opinion, typical of the manner the male officers of the station treated female officers at the time".

None of the evidence given by Ms Williams appeared either directly or indirectly to support the proposition that the plaintiff's condition was related to a failure by the defendant to take account of problems particularly associated with performance of undercover work. Gary Jubelin

Gary Jubelin is a Detective Inspector of police presently stationed at the Gang Squad, State Crime Command. He prepared a statement on behalf of the defendant that became evidence in the proceedings. The evidence that he gave was limited to the plaintiff's involvement as an undercover operative xxxxxx xx xxx xxxx xx "CE-1" xx xxxxx xxx xxxxx xxxx. There is little to distinguish his evidence on this topic from that given by the plaintiff herself. However, Mr Jubelin expressed the opinion that at no time during the operation was the plaintiff at risk or vulnerable in any way. She remained under constant surveillance from other officers involved in the operation. She was not required to give evidence xx x xxxxxxxx xxxxxxx xx xxxx xx xx x xxxxxx xxxxx xx xxxx xxxx "CE-1" xxxx xxxxxxxx xxxxxxxxxx xxxxx xxxxxxx.

Mr Jubelin agreed that "CE-1" was a physically intimidating individual. He expressed the opinion that throughout the operation "CE-1" could have had no idea where the plaintiff was staying and that he did not enter her motel room. Mr Jubelin formed the opinion that the plaintiff enjoyed being part of the operation. She made no complaint to him with respect to matters of her own safety or any concern or anxiety she may have had about her position working as an undercover operative on this operation.

Mr Jubelin said that the major reason why the plaintiff was required to xxxx xx "CE-1's" xxxx was that xx xxx xxx xxxx x xxxxxxxx xxxxxxx xxx xx xxx xxxxxxxxx xxx xxx xxxxxxxxx xx xxxxx xxx xx xxxxxxx xxxxxxx xxxxxxxxx xx xxxxx xxx xxx xx xxxx xxxxxxxxxxxxx xxxx x xxx xxxxxxxxx xx xxxxxx xxxxxxxxx x xxxxxx xx xxxxx xxxxxxx. Mr Jubelin conceded, however, that the skills of an undercover operative were necessary for the role and that someone who possessed no more than x xxxxxxxx xxxxxxx would have been inadequate for the task.

Mr Jubelin was also asked questions about xxxxxx xx undercover operatives. He gave the following answers: "Q. . . . xxx xxxxx xxxx, x xxxxxxx, xxxx xxxxxxxxxx xxxxxxxxxx xxxx x xxxxxxx xxxx xx xxxxxx xx xxxx xxxxxxxxxxx. xxxxx xxxxx xxxxx xxx xxxxxx, xxx xxxx xxx xxxx xxxxx xxx x xxxxxx, xxx xxxx xxx? A. Well, I haven't worked specifically in the undercover branch but I have utilised the services of undercover operatives. I think it would flow on if they have infiltrated one particular area and then been exposed by declaring themselves as police officers I suggest that's limited, but whether they could be get moved into another group or criminal organisation, that's possible. Q. We will just deal with that. Plainly enough if the undercover operative has had occasion to give significant evidence as a police officer in some area then that's a factor that would compromise their capacity ever to do undercover work, at least in that area? A. Yes. I would agree on that on the basis of common sense."

On a slightly different but related topic Mr Jubelin also gave the following evidence: "Q. Is it your experience that former undercover operatives, after they have left the undercover unit and become attached to some other area of policing, are utilised by their commander for their undercover skills on occasion? A. No, it's not my experience." Greg Birtles

Greg Birtles also gave evidence on behalf of the defendant. He is presently a Detective Inspector of police stationed at Tamworth. Statements prepared by him became evidence in the proceedings. Mr Birtles was able to give evidence relating to the operation in Orange to which earlier reference has been made. He was responsible for originally having contacted the plaintiff in order to determine whether or not she would be prepared to assume an undercover role in that particular operation. According to Mr Birtles, the plaintiff "seemed keen and willing to perform the role".

Mr Birtles also gave evidence about the planning of the operation. His evidence was as follows: "Q. And when it came to the planning of the operation itself how was that done, taking into account what role, if any, the plaintiff took in it. Can you recall that? A. Well, to begin with the plaintiff was given a briefing of all the potential targets in the Orange area. xxx xxx xxxxxxxxxx xx x xxxxxx xxxxxxxxx xxx xxx xxxxxxxxx xx xxx xxxxxxxxx. Then various cover stories were worked out xxxxxxx xxx xxxxxxxxx xxx xxx xxxxxxxxx xx xx xxx xxxx xxxxx xx xxxxx xxxxx xxxx. Then xxxx xxxxxxxxx xx, xx xxxx introduced to various targets. How that went about was largely, I suppose, in consultation with myself and the plaintiff xxx xxx xxxxxx xxxxxxxxx xxx xxx xxxx xxxxxxxxxxx xx xxx xxxxxx. Q. During the time up until the event at Orange in the park did you have any discussions with the plaintiff as to how she felt about doing this work? A. Yes, I did.

Mr Birtles said that the plaintiff was provided with somewhere between $300 and $350 for the drug purchase in the park. He positioned himself in the Orange detectives' office so that he did not have actual visual contact with the operation. However, he was in constant communication with a number of surveillance operatives who were surrounding the park and providing him with detailed information about what was happening. He recalled that the operation took place in mid-afternoon.

It was conceded in the course of Mr Birtles' evidence that the plaintiff made no complaint about the manner in which the operation was carried out. Indeed, the plaintiff lodged a glowing report about the manner in which Mr Birtles acquitted himself.

Approximately half an hour following the unsuccessful conclusion of the operation, Mr Birtles met with the plaintiff and others at the local detectives' office. He described her demeanour following the operation as "disappointed and angry". Phillip Kaufmann

Phillip Kaufmann also gave evidence on behalf of the defendant. He is a serving police officer currently holding the rank of Detective Senior Sergeant. He also prepared a statement that became evidence in the proceedings. He was cross-examined partly as follows: "Q. xxx xxx xxxxxx, xxxx xx xxxx xx xx xxxx xx xxx xxxxxx xx, xxxx xx x xxxxxxxxxx xxxxxxxxxx xxxxxx xxxxx xxxx xxxx xxx xxxx xxx xxx xxxxx? A. xxx. Q. And was there a recognition that the nature of the duties of an undercover operative were such that there was a risk that they might be, their health might be compromised xx xxxx xxxxxx xxx xxxxxxxxxxxxx xxxxxx xxxxxxx? A. Yes. That wasn't the only consideration, though. Q. But certainly the question of the agent's health was one which was relevant to the consideration? A. Yes. Q. Was there not put in place xx xx xxxxx xxx xxxx xxxx xx xxx xxxxxx xxxx xx a proposition that all undercover agents or operatives would be psychologically assessed initially I think at six monthly intervals and some time later that was I think extended, for whatever reason, to 12 monthly intervals? A. Yes. I can't actually recall the date when I came in. That was a proposal when I got there in about, I can't remember when I got there now. Probably about May 1989, then the psychological testing wasn't set up until at least 1990 when the psychology branch came on line. Q. As far as you were aware that requirement was not effected in relation to the plaintiff? A. I can't answer that, I don't know. Q. Just a few other general questions in that area, and the arrangement as it existed from 1990 onwards envisaged that those who were within the undercover unit would be psychologically assessed in some manner or another on a regular basis? A. Yes. The application of it, when the psychology unit was established then, I don't know exactly when that date was, the proposal was that they be assessed prior to engagement in the undercover unit and then they would be assessed on the six monthly basis and then on exit. Q. The thinking was, was it not, that the psychological assessment prior to starting would be helpful to determine whether or not people were likely to be suited to the particular strains of undercover work? A. Yes, there are a number of tests I believe. Q. And so far as those who were in already, the psychological assessment was to ensure that they weren't concealing either from themselves or from their commanders problems which had started to get on top of them? A. Yes, that was one reason but there are others apart from the suitability and existing conditions and those sort of things, yes. Q. On leaving the force, I'm sorry, on leaving the undercover unit there was to be a final psychological assessment to ensure that so far as it could be ascertained that they had not been damaged by their period in the undercover unit? A. That was the proposal and I know that came in later. I don't know when that actually was sort of brought in, it was all controlled by the employment of psychologists by New South Wales Police and psychology unit and facilitating those actions basically, yes."

Mr Kauffman was asked questions about his involvement with undercover operatives during the course of his time in the police service. He gave the number of those he had known. The following question and answer on that topic should then be noted: "Q. Of those 30 people how many came to you and unburdened themselves in relation to matters of stress? None? A. No, I think that would be incorrect to say. I think there may have been stress identifiers there and, and we spoke, they spoke to me about their jobs and duties were changed in the short term." Peter George

Peter George was in the police service from 1972 until 1997. He retired with the rank of Detective Sergeant. He also gave statements that became evidence in the proceedings.

Mr George worked in the undercover unit between May 1986 and May 1989. He worked as a supervisor. He described the health and well being of undercover operatives as "paramount". He was asked whether there was a need to give thought to the effects of undercover work on the individuals who were undertaking it. He said "that concern has been there all the time".

Mr George also gave evidence about xxxxxx xx undercover operatives and psychological testing during the course of their work as follows: "Q. xxx xxxxxxx xx xxxxxx xxx xxxx xxxxxxxxx xx xxxx xxxxxxxxx, xxx xx xxxxxxxx xxx xxxxxxxxxxx, xxx xxxxxx, xxxx xxxxx xxxxxx xx xxxxxxxxxxxxx xxxxxxx xx xxxxx xxxxxx xx xxx xxxxxxxxxxx xxxx xxxx xxx xxxx. xxxxx xxx xxxxxxx xxx xxxx xxxxxx xxx xxx xxxxxx x xxxxx, xx xxx xxxxx xx xxxx xxxx xx xx xxxxxxxxx xxxx. x xxxxx xxx xxx xx xxxx xx xxxx xx xxx xxx xxxxxxx xx xxxxxxxxxxxxxxx. xxx xxx? A. xxx. Q. xx xxx xxxxx, xx xxxxxxxx xx xxx xxxxxx xxxxxxx xxxx xxx xxxx xxxxxx xx, xxx xxxxxxxxxxxxx xxxxxxx xxx xx xx xxxxxxxxxx xx xxxxx xxxxxx xx xxxxx xxxx. xxxxx, xxxxx xx xxxxxxxxxxxx xxx xxxxxxx xxxxxxxx xx xxxxxxxxxxx xxx xxx xxxx? A. xxx. Q. xxxxxx xxxxx xxxxxx, x xxxxxxx, xxxxxxxx xx xxx xxxxxxx xx xxx xxxx xxxx xxxxxx? A. xxx. Q. And on completion of their duties, to make sure that they hadn't been damaged? A. And to prepare them for reintegration back into mainstream policing, yes. Q. To set them up psychologically for the dramatic change in their circumstances of that day to day police work? A. Exactly. The worse thing you could do would be take someone from that role and plonk them straight back out on traffic duties or investigating crime. Q. The obvious reasons being, I suppose, they were totally unfamiliar with it, they may have rank, significantly senior rank to many of the young police officers who are well familiar with the job and this in turn might expose them to a certain amount of gentle ridicule, apart from anything else? A. Yeah, apart from anything else, yeah."

Mr George said that he did not agree with the occasional use of mainstream police for undercover work from time to time. He explained his views as follows: "Q. xxx xxx xxxxxx xxx xxxxxx xxxxx xxxx xx, x xxxx xx, xxx xxxxxxx xxx xxxx xxx xxxx xxxx xxx xxxxxx xx xxx xxxx xxx xxxxxxxxxxxx xxxxxxxxx xxxx xxxx xxx xxx xxxxxxxxxx xxxx xxxxxx xxxxxx xxx xxxxxx xx xxxxxxxx xxxx xx xxxxxxxxxx? A. xxx, xxx x xxxx xx xxxxxxxxx xx xxxx. Q. Please do? A. The, when they were in the undercover unit they had tremendous support in a lot of areas. To go back out there, and I used to talk to the people about it because they all felt they could continue doing this for the rest of their lives, clearly they couldn't without that support mechanism. They wouldn't have them out in the local area to what they had in the specialised undercover unit."

Mr George also gave evidence of the dangers associated with undercover operatives being required to give evidence in court proceedings and the dangers associated with the possibility that their true identity may ultimately be revealed. As with most other aspects of undercover work the subject of these proceedings, the fact that those dangers existed was not a matter of controversy between the parties. The same can be said about Mr George's view that it was dangerous to combine mainstream policing duties with undercover work.

Mr George said that during his time in the police service he pressed for the psychological assessment of undercover operatives on a regular basis. He gave his reasons for this as follows: "The reason I pressed for it was, there was a couple of reasons. One was to make sure that when the time come to leave that they could be integrated back into mainstream policing. The other one is they put an enormous amount of work into getting to the arrest phase of an operation. They might spend months, 12 months, two years on a particular area getting as high up the drug distribution chain as they could. It would come to the arrest phase where the operational police would go in, arrest, interviews would take place. They would be taken out of there and they would feel somewhat isolated. I have done all this work and I can't be put on the front page of the newspaper, I can't be at the Police Academy receiving an award, those sorts of things. That was my main concern and I thought that was an area that I felt needed to be addressed."

Mr George was also asked about reintegration following cessation of undercover duties. He gave the following answer: "Q. The reason why you regarded integration or reintegration as an important matter was because you recognised that the operatives moving outside the undercover unit were no longer going to have the support mechanisms available to them which you've described in your evidence to us? A. Exactly."

Slightly later in his cross-examination Mr George gave this evidence: "Q. Mr George, did you ever observe undercover operatives to have problems when they ceased that work and went back into mainstream policing duties? A. No. Well, only the one that had the breakdown that I spoke about earlier, after he left, but they were in my view quite intelligent people which seemed to handle it. That's why they could handle that role. As I said earlier, not everyone could do that role."

Mr George also gave evidence about his opinion that undercover operatives should not remain in such work xxx x xxxxxx xx xxxx xxxx xxx xx xxxxx xxxxx. He described that as an "informal" opinion. He explained his view as follows: "Q. xxxxxxxx xxxxx xx x xxxxxx xx x xxxxx xxxxxx xxxxxx, xx xxxx xxxx xxx xxxxxxx xxx xx xxxx xxxx? A. It is an acknowledged pressure or stressful role. They were living the two roles. I always formed the view that they joined to be police officers, this is just one part of it. You know, they had a whole career in front of them and I certainly didn't want them to be focused into that area all the time. It's fairly hard to try and live two lives and keep them separate." David Mutton

David Mutton is a psychologist. He is a senior lecturer in forensic psychology at the University of Western Sydney and acting principal psychologist at the Australian Crime Commission. His statement was tendered on behalf of the defendant and became evidence in the proceedings.

Mr Mutton was asked about what has come to be referred to in this case xx xxxxxx xxx which should be understood in context to be a discussion about xxx xxxxxxxxx xx xxxxxxx xxxxxx xxxx xxxxxxxxxx xxxxxxxxxx xxxxxx xxxxxx xxxxx xxxx xxxx xxxxxx x xxxxxxxx xx xxxxx xxxxxx xx xxxxxxxxxxx . He said this: "Q. xx xxxxxx, xxxxxx xxx xxxx xxxxxxxx xx x xxxxxxxxxxxx xxxx xxx xxxxxx xxxxxxx xxx xxxxx xxxx xxxxxxxxxxxxx xxxx xxxxx xxxxxxxxxx xxxxx xxx xxxx xxxxxxx xxxxxx xxxxxx xxxxxxxxxx xxxxxxxxxx? A. xxx xxxx xx xxxxx xxx xxx xx xxxxx xxxxx. Q. . . . xxx xxxxx x xxxxxx xxx xxxxxxxx xxxx xxxx xx xxxxx? A. xxx xxxx xxxxxx xxx xx xxxxxxxx xxx xxxxxxxxxxxxx xxxxxxxxxx xx xxx xxxxxxxxxx xxxxxxxxx, xxx xxx xxxxxx xxxx xxx xxxxxx xxxx x xxxxxx xxxxx xxx xxx xxxxx xxxx xxx xx x xxxxx xxxx xx xxxx xxxxxxxx x xxxxx xx xxxx xxxx xxx xxx xxxxxxxxx xx xxxxxx xxxxx xxxxxxxxxx xx xxxxx xxxx, xx xxxx xxxxxxx xxxxx xxx xxxx xx xxxxxx xx xxxx xx xxxx xxxx xxxxx xxxx xxxx xxxx xx xxxx, xxx xxxx xxx xxxxx xxxxx xxxxx xx xxx xxxxxxx xxx xxxx xx xxxxx xxxxxxxx xxxxx xxxxxxxxxxxxx xxxx xxxx xxx xxxxxxxx xxxxxxxx xxxxxx. Q. Why was it necessary to consider their psychological good health? A. At that time in the late eighties, early nineties, there was some evidence that people who do undercover work may be prone to certain psychological issues. One of the issues might be concern about their identity as a police officer. Other issues might relate to the notion of the stress that they would be working under and the impact that this stress might have on them in the short and long-term."

Mr Mutton elaborated upon this a little later as follows: "Q. And so that arrangement was in place to deal with those issues? A. That's right. Q. xxx, xx xxx xx xxx xxxxxx, xx xxxx xxxx xxxxxxx xxxx xxxxxx. xxxx xxx xxxx xxx xxxxxxxxx xxxxxxxxxxxxx xx xxx xxxx xx xxxxxx xxx xxx xxxxxxxxxx xxxx xxxx, xxx xxx xxxx xx xxxx xxxx? A. xxx xxxxxx xxxx xxx xxxxxx xxxxxxxx xxxxx xxxxxx xxxxx xxxxx xxxx xxxxxxx xxx xxxxx xx xxxxxxx xxxxx xxxxxx x xxxxxxx xxxxx xx xxxxxxx xx xxxxxx xx xxxxxx, xxx xxx xxxxxx xxxx x xxxxx xxxxxx xx xxxxxx xx xxx xxxxxxxxx xxxx xxx xxxxxxxxxxx xx xxxxxxx xxxx xxxxx xx xxxxxxx xxx xxxxxx xxxxxxxxxx. Q. And by burnout you mean what? A. Where people start to lose the capacity to do their work in a productive fashion. They start to become fairly cynical, unmotivated, less productive and emotionally challenged by doing the work. Q. You referred also to the issues relating to identity. What were the understood issues at that time which arose in this sort of work? A. When someone does full-time undercover work they are often taking on an identity quite different to that of a police officer, often it is that of a criminal or criminal associate. So they are play-acting and it is important that that play-acting does not become part of their true personality. So the notion is for them to be able to separate themselves from the role and for them to maintain the police personality. Q. Now, does it follow that after a specific period then further undercover work is contraindicated? A. I think long-term full-time undercover duties that go on and on are certainly contraindicated but yet again I still think it is based on the personality of the person and how they are coping at a particular time."

The plaintiff's work history, of which she gave evidence on 27 March 2008, was put to Mr Mutton (see T 624-626) and his comments were sought xxxx xxx xxxxxxxxxxxx xxxxxxx xxxx xxxxxxx xxx xxx xxxxxxx xxxxxx xx xxxxxxxxxx xxxx xxx xxxxx xx xxxxxxxxx. The actual (effective) question and answer were as follows: "Q. . . .On those assumptions that I have just given you are you able to make any comment as to whether that catalogue of undercover work over the period April 1991 through to March 1999 would have been contraindicated as something which would lead to psychiatric disorder?

Mr Mutton spoke of circumstances where some (presumably) undercover officers had been withdrawn from duties in the face of psychological problems. This has come to the attention of the defendant in some cases following six-monthly reviews of undercover operatives. He said, "It would depend on the severity of the condition". He was asked about that: "Q. What sort of conditions did you observe of that sort? A. Most psychological distress manifests itself as either varieties of anxiety or depression and sometimes post-traumatic stress. They are the main manifestations. Q. When these people presented to you was their condition obvious to you? A. If they were open and honest about how they were going, yes."

Mr Mutton was then cross-examined about this as follows: "Q. So what you would do then is you would have the various undercover operatives who had fallen due for review undertake a particular battery of tests. With the benefit of analysis of those tests and as a trained forensic psychologist you would determine in some instances that there was a medical problem, either incipient or already present? A. That's right. Q. And presumably then you would make arrangements for some type of treatment as appropriate, if necessary medical treatment? A. The word medical would apply if there was a diagnosis of anxiety or depression, but there are a lot of issues which don't fall comfortably into a medical diagnosis which could be called stress. Q. You mentioned PTSD. That presumably-- A. That's clinical, yes. Q. That's something you would send off to the appropriate person for psychiatric intervention? A. Yes, but some matters could be dealt with in-house through psychological intervention. Q. So some decision would need to be made as to the manner in which to reveal the problem? A. That's right. Q. The purpose, of course, in instituting a six monthly review was to recognise that you couldn't rely on these operatives to come forward themselves and self-analyse themselves? A. That's right. Q. The fact of the matter is, of course, that the personalities involved had a tendency, both in consequence of the culture and perhaps because of their own personalities, to simply see it through and imagine that it would all get better after the stress came off? A. That's right. Q. So that the system then was put into place and that system reviewed those who were still in the unit; correct? A. Full-time unit, yes. Q. And you also saw them again at the time that they were due to move on? A. That's correct. Q. And that simply was to keep your records clear so that you know that they were still free of psychological problems? A. That's right. Q. Did that system work all right? A. It worked as well as a system like that can work."

One of the plaintiff's allegations relied upon a failure by the defendant to "de-role" the plaintiff. Despite the neologistic assault on the language occasioned by the use of such a term, Mr Mutton appeared able to deal with it and to express an opinion about it. With particular reference to undercover work he said this: "Q. What in your view is the benefit or need, if that's what it is, to ease such persons back into the policing routines, the ordinary policing routines, if I may so describe them, after a period in undercover? A. The duties are so different from regular policing duties that there is this sense in which the roles they have been undertaking need to be deroled in a certain way, and by getting them to think while they are still in that area about the future and beyond undercover, it is part of that. They also, from my understanding, tend to be co-located away from any ordinary policing buildings in covert sites with other undercover people. But the notion, we used to always say make sure the Police Service Weekly is there, make sure people are still thinking about promotion, doing studies which might further their police career. So even while they are in the undercover frame itself utilising the down time, which there is often quite a lot of as well, to optimise their career once they leave the undercover section. So reintegration probably starts at the day they join, at the day they start, and it progresses after the day they leave."

Mr Mutton agreed that he saw it as a matter of some importance from a psychological point of view to have people recognise well in advance that the moment is going to arrive when their life as an undercover operative will come to an end. He agreed, "they should be thinking about what's next in their professional life". I asked Mr Mutton about this as well: "Q. Mr Mutton, in the time that you were there did the police service to your knowledge have any system or protocols or guidelines for what's been referred to as operational debriefing or deroling for undercover officers? A. No, there was nothing formal in place in that regard."

Having regard to the apparent importance of this issue, there was further cross-examination on it as follows: "Q. Could I just ask you from a psychological viewpoint what is wrong with simply saying to them at the end of their time, right, that's it, time's up, off you go? A. If that is what happens then there is no opportunity for the person to downscale what they are doing. If they are going from fully undercover then to no undercover at all then there is no ability to wind down those duties. There has probably been very little opportunity for them to prepare. Q. What's the impact psychologically is really what I am asking. Why does it matter if that was done? A. It would be difficult to adjust back into the police persona, the police role, under such a circumstance. Q. Would that trigger some negative psychological reaction? A. It could, certainly. Q. So if you were told that the plaintiff on her return to the undercover unit, having been away doing a course, was told: This is your last day. Put your gun and your appointments in the locker and find yourself another job. That would be about as abrupt as it could get, wouldn't it? A. That's right. Q. And certainly contraindicated in terms of psychological well-being? A. I agree."

It was indicated to Mr Mutton that following the Operation Rhino incident in Orange, the plaintiff said, "I can't do this any more" and may also have said, "my nerves have gone". He said, "[t]hose statements by themselves do not indicate a mental illness necessarily".

Finally in cross-examination Mr Mutton was asked this: "Q. . . . Would you accept that assuming a great number of stressful incidents, to put it in neutral terms, can occasion a psychiatric condition such that the final stressful incident, albeit of comparatively trivial nature, suffices to make the condition florid? A. Yes."

It is appropriate to note only the following material to which Mr Mutton was taken in re-examination: "Q. My learned friend asked you a third matter, and final one. My learned friend asked you some questions about, again the response was not ideal, about how the work might come to an end. And I ask you these questions in that context. Assume that there is, a person stops doing undercover work and then goes into, still within the drug enforcement agency, goes into work which is a combination of investigation and undercover? A. Yes. Q. Secondly, by that time the person, the plaintiff in this case, has completed their detective's course. And during the period when they are in the second stage that is in the support unit doing investigative and undercover work, they are then looking about for employment as a detective? A. Yes. Q. Assume for the sake of the question that they are making the enquiries about the other job themselves. Now, in terms of reintegration, deroling, is that sort of régime an appropriate one? A. That's reasonably appropriate from my perspective." John Stanioch

John Stanioch retired from the New South Wales Police Service in 2001 after 36 years in the job and with the rank of Inspector. His statements also became evidence in the proceedings. He was the commander of the undercover unit in the late 1980s and early 1990s.

Mr Stanioch's attention was drawn to the way in which the system had changed in the early part of the nineties with respect to entry into the undercover course. He was well placed on the basis of his experience to comment and he gave the following evidence: "Q. There was introduced, was there not, in about 1991 and 1992 a requirement that operatives be psychologically assessed before they enter the unit? A. Yes. Q. And that they be assessed each six months thereafter to see that they were coping? A. I'm not sure of the period of time, but it was under the control of the psychologist, yes. Q. And there was introduced, was there not, a requirement that operatives be seen by the psychologist at the time that they were leaving the unit? A. I'm not aware of that one, no. Q. In any event, did you understand the purpose of having the operatives looked at on a regular basis was to ensure that there was not some problem of a psychological nature that was creeping into their being? A. That was one reason. The other reason was it was an external person they could confide in and discuss any problems that they had. Q. Part of the difficulty was, was it not, that operatives, in common, perhaps, with many other police, were reluctant to concede or to admit that there was anything which was getting to them? A. That's true in most cases, but if they really have any problems you will find that they confide in a work mate, someone close to them who will filter the word down to you. Q. And the system really operated prior to the introduction of the compulsory psychology testing, it operated on the basis that somebody would say something to one of the supervisors that something had come to their attention that might be worth a bit of a look? A. Yes. Q. And the supervisor would look into it and, if thought appropriate, might make arrangements for the job to be done differently, something of that nature? A. If he was aware, yes. Q. And in theory, at least, if thought bad enough perhaps they would arrange for some sort of medical attention? A. If it was required, yes. Q. That didn't ever happen, did it, in your time? A. Not that I am aware of, no, but there was always the option for the operative to leave the section at any time they couldn't cope with it or any time they wanted."

Mr Stanioch could not recall during his time with the undercover unit ever having spoken to an undercover operative who was apparently in need of medical assistance. He could recall only one officer who sought to leave the unit. He was described by Mr Stanioch as "a fellow of ethnic background [who] found that by working in the undercover section it more or less interfered with his family and his family relatives so he asked to leave and he was allowed to leave". He was neither overstressed nor unable to cope and had only been in the unit for a short time. Mr Stanioch said, "he just couldn't handle the effect it had on his family and relatives". No police undercover operatives ever informed Mr Stanioch that they were not coping mentally.

Mr Stanioch had no recollection of ever having been told by Mr George that the plaintiff was having difficulties associated with the consequences of her work that "were resulting in problems for family, for young people in the family, things of that nature". His recollection is revealed in the following material: "Q. Do you say that that was not a matter that ever in any way filtered through to you? A. I am saying that I can't recall Mr George saying that to me at all, no. Q. Is it something that you imagine that you would have remembered, had it occurred? A. I probably would have remembered because if that was the case she would have been offered the option to leave the unit if she wanted to or she would have been referred to the psychologist to consult him."

The preceding review of the evidence does not include a reference to every witness who gave evidence in court or provided a statement that was tendered by one or other of the parties. None of those witnesses who were not called, but whose statements were nevertheless relied upon, gave any evidence in significant or relevant contradiction of the evidence of the other witnesses that I have reviewed. Many of these witnesses, however, gave further evidence in support of one proposition or another. Reference to some of the evidence given by these other witnesses is made below in the course of the disposition of the issues that follow. Discussion

Although for reasons outside the control of the parties the evidence about the precise period that the plaintiff worked as an undercover officer following her initial period attached to the undercover unit is not entirely satisfactory, it would appear to have been in the order of something approaching a total of two years. That was ultimately the plaintiff's submission (T 10, 14 April 2008). Between April 1991 and June 2000, when not specifically carrying out undercover duties, the plaintiff was required to carry out additional part-time undercover work. There is no dispute in this case that the plaintiff's assessment is an appropriate estimate, even though precise records of this work were either not kept or are presently unavailable.

It was submitted on the plaintiff's behalf that when she started out at Kings Cross as "a twenty-one year old girl" she "knew nothing about drugs and so on and that must have seemed like a great adventure at the time and she turned out, perhaps to her own detriment, to be very good at it, and that in turn led to the situation where eventually she was a prized resource with significant experience and capacity and such that she was called back over and over again". That summary is also not apparently contested. In any event I find as a fact that the plaintiff was indeed an outstanding undercover operative, if not an outstanding police officer generally, driven by a strenuous ambition to perform well in her job and possessed of what I have referred to as conspicuous intelligence and capacity. By her own admission, the plaintiff made no complaint about whatever problems she was having, for to do so was considered to be inimical to the progression and promotion she desired and to which she aspired. In the course of this highly promising career prematurely truncated by work related injury, did the defendant breach the duty it owed the plaintiff in any of the ways that she alleges? Failure to provide the plaintiff with adequate training to perform her duties

The plaintiff's submission became principally a submission that she had received little formal training, which may or may not have been adequate, rather than that she received no training at all . Furthermore, the allegation is necessarily limited to the time when the plaintiff initially joined and worked for the undercover unit. The evidence clearly supports the fact that the plaintiff attended the undercover course at a later stage.

The burden of the submission is that the plaintiff received "on-the-job" training but that, almost by definition, that system resulted in the plaintiff being exposed to undercover work before training occurred. Other witnesses, such as Timothy Seirlis, Martin Brown and Robert Ridley, spoke of receiving no pre-operational undercover training and of being trained, in the first instance at least, by fellow officers or by the simple expedient of an exposure to the very work they were required to perform in that capacity. There was no formal course of the type later developed and conducted by Mr Drury when the plaintiff commenced this work.

A formulation of part of her case, as an obligation to train in a way that was adequate for the plaintiff to perform her duties, rather indicates that she was unable to perform them at some relevant time. This would suggest the availability of examples of the plaintiff having incorrectly performed her undercover work or having performed it contrary to proper procedures about which she should have been previously instructed but was not. No such examples are in evidence. Indeed, the evidence suggests that the training that was received, although limited to the language and mythology of the drug trade and its participants, was more than adequate for her purposes. There is an apparent, although not necessary, tension between the success that the plaintiff demonstrated as an undercover operative and the consequent high demand for her services on the one hand, and a complaint that her training was so deficient that it did not adequately arm her with the skills or knowledge to perform such work on the other hand. The sophistication in training methods that later emerged cannot be used as the benchmark for training when the plaintiff joined the undercover unit unless the plaintiff had sought to make a case that the defendant had wrongfully failed to implement its course at an earlier time. No such case is maintained. The training that the plaintiff received would appear self-evidently to have been adequate for her purposes and those of the defendant. The description of her as "a prized resource with significant experience and capacity” is a proposition that the defendant has not sought to contest.

Nor, purely by way of example, is the fact that the plaintiff entered a vehicle (with Ms Crowe) "apparently in breach of protocol" an instance of inadequate training. The relevant proscription was upon doing so in the absence of backup or surveillance. That was intended to be part of the operation. The fact that the plaintiff and Ms Crowe entered the vehicle unobserved and unprotected was a failure of an operational matter rather than anything to do with training.

The plaintiff gave no evidence that she was ever confronted at some stage in her career with a situation or circumstance with which she was, for want of adequate training or experience , unable to deal. There was no evidence from any other source that such a thing occurred. I recognise immediately that the absence of examples of problems caused by inadequate training is not necessarily coextensive with an absence of inadequate training in fact. However, if only as a matter of common sense or common experience, the highly specialised nature of the work of the undercover operative described by the plaintiff does not sit comfortably with trouble-free (as opposed to stress-free) performance of such work in the absence of proper training.

In my view, there has been no relevant failure by the defendant adequately to train the plaintiff. It is in my view incorrect to conflate training that may have been basic, ad hoc, unstructured and unsophisticated with no training at all. The adequacy of the training that the plaintiff received was reflected in her success. The stressful nature of the work when encountered by inexperienced operatives for the first time should not be confused with a proposition that it would not have been so with training of a different kind. The work was inherently stressful whatever the officer's level of training and experience might have been. It is not insignificant that Mr Drury did not voice an opinion that there was inadequate training of the plaintiff prior to her deployment in undercover work. It is also difficult to accommodate the plaintiff’s allegations with Mr Drury’s opinion that around 1991 the plaintiff "possessed advanced skills at the highest level as an undercover operative": see par [169] above. Failure to provide the plaintiff with any or any adequate psychological and/or other counselling and/or psychological or psychiatric treatment

There is no evidence to support this allegation even though there is evidence about it. It seems clear that in about 1991 the system introduced by the defendant provided for psychological examination or assessment prior to entry into the undercover unit and also on leaving with six-monthly reviews during the time in between. The evidence is not that this was a therapeutic regime. That system was recognition of the fact that it could not be expected or assumed that undercover officers would come forward with their problems or "self-analyse". Mr Mutton said it worked "as well as a system like that could work". This was presumably a reference to the widespread disinclination of officers to reveal problems and was in fact an attempt to overcome that tendency.

The police service had a welfare unit or psychology unit that was available for use by officers in need of its assistance. The plaintiff's contention is not that such facilities were not available to her at all but that she was not ordered or otherwise required to attend for counselling so that whatever might have been troubling her could have been recognised and treated. I have accepted that undercover work carried with it a risk of psychiatric injury that was foreseeable and that the defendant actually knew of that risk. This therefore brings into sharp focus the question of what the defendant should reasonably have done by way of response to the risk.

When consideration is given to such things as the magnitude of the risk, the gravity of the harm, the cost and practicability of preventing it, and the end to be achieved, the simple expedient of introducing active reviews of employees engaged in work that was known to have recognised potential risks to health may not seem to be an unreasonable requirement to impose in response to that risk. If the size and scope of the employer's operation is relevant, there could be little to say against the proposition that what was introduced in 1991 could have been introduced earlier. If the interests of other employees are relevant, then the reasonable response favours the plaintiff given the operational dangers associated with undercover work. If one of the issues is that an employer can only be expected to take steps that are likely to do some good, the defendant's adoption and retention of a system of six-monthly reviews arguably gives some actual indication that some benefit has resulted. The fact that officers generally, or the plaintiff in particular, may not have been helped by this system because of some cultural reluctance of police to complain, or because of the plaintiff's idiosyncratic resilience, are matters relevant to the issue of whether any loss may have been caused by the breach (as to which see below) and do not derogate from the importance of factors supporting or tending to support a finding of breach in the first place.

However, the defendant's duty has to be formulated by reference to factors that include the incidents of her employment. That employment exposed the plaintiff to a foreseeable risk that she might suffer psychiatric harm. Whilst the defendant may have been required to take reasonable steps to reduce or eliminate that risk, the provision of some form of counselling regime or non-specific psychological or psychiatric treatment going beyond the maintenance of a readily available and accessible welfare unit was not called for and exceeds what ought to be regarded as a reasonable response. The question is one of extent and degree. The question has to be assessed prospectively and not through the prism of hindsight. The plaintiff’s allegation is formulated in terms of adequacy, but the plaintiff’s development of a psychiatric injury does not automatically produce the answer to whether or not the defendant took adequate steps for the plaintiff's safety in fact. Adequate steps are not to be equated with perfection. The defendant was required to do what was reasonable. In my opinion it did so. The defendant has not breached its duty of care in the circumstances. Failure to establish and maintain good and recognised procedures for the re-integration of undercover police officers in the position of the plaintiff into mainstream policing duties

Consideration of this particular of negligence requires precise identification of what are said to be the "good and recognised procedures" for which the plaintiff contends. The formulation of the question is easier than production of its answer. In general terms there is evidence supporting the fact that the nature of undercover work is not only all embracing but has a tendency to isolate officers who perform it from others of their colleagues in more traditional roles. This is because of the need to protect the identity of undercover officers, and open professional relationships with ordinary police are contraindicated for that reason at least. Secondly, undercover officers are in many respects out of touch with the day-to-day aspects of ordinary policing and some period of readjustment is often required. Thirdly, irrational suspicion has sometimes attached to officers known to have worked undercover and discrimination and isolation often results. Fourthly, undercover duties have a tendency to interrupt what is the usual or expected career milestones and progression, thereby impeding or postponing promotion to higher ranks.

The plaintiff gave evidence that she was in effect unceremoniously told to pack her bags and find a new job at the end of her initial term with the undercover unit. Neither party supported the proposition that this was appropriate although the precise nature of what occurred is in dispute. Mr Mutton agreed that the plaintiff should have been given an opportunity to "downscale", which presumably means reduce the undercover workload in an ordered and timely way in preparation for return to normal police duties. He spoke in terms of adjusting "back into the police persona".

These strategies are no doubt good common sense and the promotion of them well intentioned. I am wholly doubtful, however, that it is possible or accurate to elevate them as a matter of law to the level of a minimum requirement for employers such as the defendant in order to avoid liability for work related injuries. The defendant conducted a police force. Not unlike all manner of large-scale employers, the range of work falling for assignment to employees from time to time is large and not necessarily easily accommodated under a single or unified category. A desk sergeant in Molong will not ordinarily do the same work as a member of a tactical response team in Sydney. There is no structural impediment to a police officer moving in either direction between such roles as a matter of career development. Many other examples can be imagined. It strikes me as impossible to identify "good and recognised" procedures for removing all manner of disruption that may arise as a result of such movement. As Mr Mutton observed, the simple expedient of making enquiries about other jobs within the police service at the end of an undercover campaign was, in terms of reintegration, "reasonably appropriate from [his] perspective".

I am not satisfied that the plaintiff has established what so-called good and recognised procedures for reintegration of undercover officers are or indeed whether they exist as a known combination of factors at all. There seems to me to be no substance in the allegation that the defendant breached its duty to the plaintiff by failing to do some recognisable or identifiable thing when the time came for her to return to "mainstream policing". The plaintiff was an adult of full capacity employed in a large organisation with a multitude of different types of work. It would be an extraordinary thing if such an employer were to be liable to its employee if it failed to eliminate the prospect of emotional and physical disruption when that employee changed tasks. In my opinion, this head of negligence is not made out. Failure to devise, institute and maintain a proper or adequate system for the flagging of police officers involved in numerous critical incidents as being productive of cumulative stress

The plaintiff alleges that the defendant failed to identify her as such a person. Did this amount to a breach of its duty? In my opinion it did not. The defendant has conceded that it recognised and understood that undercover work was capable of producing stress and psychiatric injury. It is also apparent that it failed to recognise or identify that condition in the plaintiff. However, the plaintiff has failed to provide any content to the particular of negligence alleged. What should the defendant have done to discover a condition that the plaintiff would appear not to have identified herself at any time prior to Operation Rhino? What could the defendant have done when the plaintiff made no complaint or report of anything untoward at all? What possible filter could the defendant have devised that would have identified the plaintiff in a way that called up the need for some form of action?

The evidence suggests that the defendant did have such a system and it applied to members of the undercover unit after about 1991. It did not apply to members of the police service who performed ad hoc undercover work from time to time from positions outside that unit. The plaintiff was such a person. The real issue is presumably whether or not the defendant breached its duty to the plaintiff by failing to identify her as a person who had been involved in numerous critical incidents that may have combined to produce a psychiatric illness.

Professor McFarlane gave some evidence about this as follows: "Q. So that if the officer chose to not reveal they were suffering any stress reaction at all and, B, did not manifest any change to those about them it would be extraordinarily difficult, wouldn't it, to be able to identify that person as a person who needed help, isn't that right? A. That's correct, if all that was in place was the system that you have described. I mean, you asked me to comment on matters that you believe I set out in my report. I did actually set out some other matters which we haven't got to but I believe that given the matters that you have so far led me to, it would be difficult if an individual did not complain and did not change in their behaviour to identify them. Q. And so far as psychological treatment is concerned, the willingness of the person to at least reveal, if not co-operate, their problems is of significant importance, isn't it? A. It is a critical issue. But again there are, that is why the issue of screening is such an important one and why it is adopted by organisations such as the defence force."

Professor McFarlane spoke about regular screening of people after operational deployments, which he described as looking for specific symptoms. He emphasised the use of questionnaires as a preliminary assessment, followed by clinical interviews that establish the presence or absence of symptoms. He was asked about screening as follows: "Q. And you are entirely dependent, aren't you, upon the participants being frank? A. That's correct. But in that setting you have more chance of detecting the individual who is not being frank than you do where you are simply depending upon them presenting themselves. Q. So if, for example, over a period of years when the plaintiff was undercover she would be regularly interviewed by her supervisor who would play over any listening device tape and would discuss with her the task and how it went, if she did not reveal anything at that time which, as it were, raised the index of suspicion, it would be extraordinarily difficult for the supervisor regardless of how well trained they were to detect a problem. That is right, isn't it? A. No, because it depends on how the supervisor is trained and what their specific duties are. If they are simply operationally debriefing the individual and ascertaining factual matters and the procedural matters, that is a different question than asking the operative about their state of mind and looking at them in the days and weeks that follow the operation as to their well-being. Q. Well, if the person revealed nothing about their state of mind which would, as it were, alert the supervisor there is not a great deal more the employer can do about it, isn't that the case? A. No, I don't agree with that. It is a bit like saying if you - the only information you will ever gain from somebody is when you let them provide that information directly themselves. I mean, the whole nature of cross-examination for example is an attempt to elicit information by detailed questioning and obviously your training, Mr Menzies, as a barrister is critical to your capacity to carry out your role. If you are not trained as a barrister you will not be able to deal with the matters before this court in a sophisticated way. Equally a supervisor, if untrained in the mode that we are discussing, they cannot simply depend upon the individual providing the information. It is about expecting me as a witness when you stand up to cross-examine, to tell you everything you need to know about this case which is disadvantageous to the plaintiff without you asking me a single question. I don't think that is the way the world works."

Professor McFarlane said that in practical terms that would not require supervisors to screen undercover operatives. He said that he would expect this to be done by specialists interviewing individuals concerned "as happens. . . elsewhere" although he did not nominate the specialty concerned. It was put to him that if, as in the present case, the plaintiff were trained and relatively sophisticated in the workings of the system, the probabilities were that she would be unlikely to reveal the existence of something that would indicate a problem. He answered as follows: "A. I think in my report I outline at some length areas where undercover operatives need to be dealt with differently from other police. The fact that when she met her husband she was using an assumed name and trying to present a different identity than her real one is an example that this woman, even at that point, was struggling with her returning to her normal life from being an undercover operative. And you can see, there is a very direct question you can ask an undercover officer once they have ceased working in that role, in your private life do you ever fail to correctly identify yourself and your occupation and your circumstances in an environment where you would be feeling relatively safe. And you can see the different individuals said, well, in fact I do use assumed names and present a false identity. If I was the supervisor I would be asking myself what is going on here. It would begin to raise a question and a suspicion in your mind."

Professor McFarlane said, "as a doctor you are obligated to ask a patient a history in a systematic and sophisticated manner". He appeared to assume the existence of some kind of doctor/patient relationship or similar within the context of which this series of hopefully revealing questions and answers could take place.

In my view there is no basis for concluding that the defendant had any duty of the sort contended for and there is no basis for asserting that it was breached by the defendant if it had. The plaintiff would impose upon the defendant an obligation actively and intrusively to search out through medical interrogation the possible existence of undercover operatives whose exposure to such work may have led them to encounter difficulties returning to life as themselves. Specialists would be employed for this purpose. The system would presumably not be voluntary, even though it would not in all cases even be necessary. Other evidence reveals that the incidence of self-reporting of problems by undercover operatives was low. The evidence does not establish whether this is as the result of conscious under-reporting, or the absence of problems in fact, or a combination of both. Whatever may be the correct position, the defendant did not owe or breach any duty to the plaintiff to do more than to offer or have available facilities for counselling if operatives chose to use them. It is a quite unrealistic extension of the duty owed by an employer in an industrial setting such as the New South Wales Police Service to expect the defendant to micro-manage the transition of undercover operatives into ordinary duties in the ways alleged.

Put in the most basic of terminology, the particular of negligence on which the plaintiff relies is that she ultimately broke down as a reaction to her work and that this was caused by an accumulation or build-up over time that should have been noticed by the defendant before it became florid and thereby prevented. By every account the plaintiff was not accumulating some discernible or detectable residue of psychological pathology during her time in the police service. Even if she were acquiring such pathology in fact, there was nothing more that the defendant could or should have done in the circumstances. It must be remembered that the plaintiff performed full time undercover work xxx x xxxxxx xxx xxxxxxxxxxxxx xxxxxxxxxx xx xxx xxxxxxxxxxx xxxxxx and emerged from that work as an apparently thriving undercover operative eager for more of the same. Her subsequent assignments were part-time and the defendant was entitled to expect, in the absence of any indication to the contrary, that the plaintiff was not therefore being subjected to unremitting exposure to the harmful effects of such work. In my opinion the circumstances of this case are such that the defendant was not obliged to do anything at all. It follows that there was no breach of duty. Failure to put into operation any system or protocol or guideline for rotation of duties of the plaintiff after a stressful incident

Fundamentally understood, this allegation is that every time the plaintiff performed undercover work, which all parties agree is stressful, she should have been given a break or rest and rotated out of undercover work into less stressful or completely unstressful tasks. I do not consider that a failure to do so could by any measure amount to a breach of the defendant's duty. Mr Drury and Mr Mutton each gave evidence on this subject but neither propounded the idea that an undercover operative should be constantly or regularly rested or isolated following participation in an apparently or potentially stressful incident. Exposure to stressful incidents or events was the essence of undercover work and the defendant could not be expected to conduct undercover operations using a valuable resource in such an interrupted and disjointed fashion. Moreover xxxxx xx xxxxxxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xx xxxxxxx xx xxxxxxx xxx xxx xxxxx xxxxx xx xxxxxxxxxx xxxx and the notion that reassignment might be necessary on a regular, albeit temporary, basis. Failure to notify the welfare unit or the psychology unit

The issue for consideration under this head of negligence is the identification of precisely what it is of which the defendant should allegedly have given notice. The plaintiff was not obviously in need of special, or indeed any, care or attention. She manifested no outward signs of distress or illness of any sort during her work at any time prior to Operation Rhino. She made no complaint of any sort prior to her critical conversation with Mr Donnelly and her work performance revealed nothing problematic. The contrary was the case. The plaintiff actively refrained from giving any impression other than that she was perfectly all right. Failure to refer the plaintiff to any unit within or outside the police service for treatment or assessment could not in those circumstances amount to a breach of duty on the part of the defendant. Failure to put into operation any system or protocols or guidelines for operational de-briefing and 'de-roling' of the plaintiff

To the extent that so called 'de-roling' is said to have been an obligation imposed upon the defendant, it is relevantly indistinguishable to my observation from the alleged obligation to establish and maintain good and recognised procedures for the reintegration of undercover police officers into mainstream policing with which I have already dealt. However, it was the subject of particular evidence from Professor McFarlane to which specific reference is required: "Q. . . .I wonder, could you tell us, when you spoke of role transitions, to what are you referring? A. Undercover operatives clearly have to adopt the identity of the individual whose life they are mimicking and what an officer then has to be able to do is to live the life of themselves once they have withdrawn from that role and sometimes that transition can be quite difficult. Undercover operatives will form relationships and friendships with the people with whom they consort and they have to simply obviously give up those relationships and move back to their previous life and sometimes that can be quite challenging for operatives so it's extremely important that they are - are walked through that - that transition and - and that's what we would call de-roling . Q. What is the nature of the assistance that you believe is appropriate and necessary for operatives, particularly those who have been involved as undercover for a considerable period of time and, second, if you would, at the time that they are taken ultimately out of the role and returned to general duties? A. Well, the first issue is that working as an undercover operative requires an individual to really adopt an attitude to themselves as though they are an actor. It is like they are never themselves and they have to learn how to silence their normal responses and thoughts and reflections because if you imagine social conversation that you would have at a dinner party on Saturday night, you don't constantly ask who you are. You take on your own identity, you tell the stories of your life, whereas an undercover operative has to learn how to suppress their own narrative of their life, their own reflections, their own attitudes, their own ideas and to adopt those of the individual whose life that they are portraying and obviously the longer that you take on the life and the identity of some mythical figure, in a sense you can become that person more and more in your own mind. It stops being a conscious activity. It becomes - becomes relatively reflexive to the individual so when an operative has been in that role for a long time, you can understand that the transition back to their own identity is quite a challenge. I mean, one of the important issues for any police service is that because undercover operatives have been working in a criminal environment, obviously they are individuals who are at risk of getting involved in corrupt activity because they have formed relationships with criminals and can operate clearly in that environment so simply from a risk management strategy for the police service, it is critical that officers are stepped back into their normal roles and from a psychological perspective, you can see how these are people who learn in a way not to react to their own fears and thoughts and again if you are going to be engaged in your own life and relationships, you - you need to react in a reflexive way, otherwise you become a somewhat cold, withdrawn, unemotional person and there is a potential cost, quite independent of psychiatric disorder, to people who take on these - these particular roles". (Emphasis added).

Professor McFarlane made no other reference to de-roling in his evidence apart from the emphasised word in the passage last quoted. He gave no evidence particularly dealing with the ways in which a body in the position of the defendant should go about de-roling other than evidence in that passage or to the same effect. In other words, according to Professor McFarlane, it is extremely important that undercover operatives are "walked through" the transition from their undercover identity to resumption of their normal life. No details of how this process is to be performed are suggested. Certainly no system or protocols or guidelines have been prescribed.

I am unable to draw any meaningful distinction between reintegration and "de-roling". I am uncertain that a recognisable distinction exists. I am unable to form any conclusion that supports the existence of a breach of duty by the defendant.

There remains the issue of operational de-briefing. At pages 483 and 484 of the transcript the following discussion is recorded: "MALLON: While we are on this topic could I very quickly draw your Honour's attention to paragraph 29 of Mr Brown's statement? As I understood the discussion that occurred last Friday between your Honour and my learned friend that there is really no issue in this case that debriefing has any role to play in terms of negligence and accordingly objection was taken to paragraph 29. Now, if that remains of course there are certain matters that I have to put to this witness on the issue of debriefing. I don't think that that is irrelevant and I ask my learned friend to confirm that that is the case. BURBIDGE: I think my friend has misunderstood the relevance of the material to be found in this witness's evidence on this point. This is to do with the transition to what might be called general duties policing. HIS HONOUR: Paragraph 29 does not raise as an issue a particular of negligence suggesting that the defendants should have but failed properly to debrief the plaintiff. MALLON: And also paragraph 23, your Honour. BURBIDGE: Could I make clear I did not say the debriefing was a matter, which did not form part of our case. I think what I did was I foreshadowed that having regard to the evidence of Professor McFarlane, it seemed unlikely to be a matter that would trouble your Honour because it did not lead anywhere. But I don't know that that is the totality of the evidence. Maybe it will be, maybe it won't. Maybe some medico from the other side will come along and persuade us that McFarlane was incorrect. I don't know. But certainly, as I say, in respect of this witness it is nothing more than a lap into the proposition that he, too, was told to pack his bags and be on his way and that no ceremony or debriefing or anything else accompanied that direction. De-roling, it is called elsewhere, I am reminded. MALLON: Paragraph 23 makes the allegation that there was no formal debriefing. Now, I can only assume it is meant in the sense of psychological debriefing of some sort and accordingly there is the difficulty with the way that my learned friend is running this case. He is having it both ways and it makes it very difficult."

The evidence of Professor McFarlane that prompted that discussion is to be found in the transcript commencing at page 250. He was the author of a paper that dealt with critical incident stress debriefing. He described it as "a potential preventative intervention". He said that "its negative effects are in fact overstated" and that "[i]t is really a neutral effect, if anything". He conceded that there were "a couple of studies that suggest a negative effect". There were also some other studies, more recently involving the American forces in Iraq, which begin to raise the possibility that a sub-group may have benefits. He concluded however that "[o]n balance it is a waste of time". Assuming that the plaintiff did not discard operational debriefing as part of her case, the defendant did not breach its duty to the plaintiff by failing to institute a system that included it. This is another case in which it was appropriate for the defendant to do nothing. Failure to rotate the plaintiff out of undercover work xxxxx xxx xxxxxx xxxx xxxxxxxx xxx xxxxxxxxxx xxxx

The fundamental proposition underpinning this particular of negligence is that xxx xxxxxx xx xxxxxxxxxx xxxxxxxxxx xxxx xxxxxxxxx xxx xxxxx xxx xxxxxxxx xx xxxxxxxx xx xxxxxxxxxxx xxxxxxxx xxx xxxxxx xxxxx xxxx xxxx xxxxxxxxx. xxxxx xx xxxxxxxx xx xxxxxxx xxxx xxxxxxxxx xxxxxxx xxx xxx xxxxx xxxxx xx xxxxxxxxxx xx xxx xxxxxxx xxx xxxxxxx xxxxxx, xxxxxxxx xxx xxxxxxx xxxxxxxx xxx xxxxxxxxxxx xx xxx xxxxxxxx. xxxxxxxx xx xxxx xxxxxxxxxx xx xxx xxxxxxxxxx xxxx xxx xxxxxx xx xxxxxxxxxx xxxx xx x xxxxxxxxxx xxxxxx. In the present case the plaintiff performed a continuous period of undercover work of between two and three years from 1988 until 1991 and at times thereafter on an ad hoc or occasional basis as earlier described.

The plaintiff xxx xxxxxxx xxx of the undercover unit xxxxx xxxxxxxxxxxxx xxx xxxxx xx xxxxxxxx xxx xxxxxxxxxx xxxx. Ironically, one of her complaints in these proceedings is that she found it difficult to adjust to regular police work at that time, a consequence that would necessarily confront her when rotated out of full-time undercover work. Be that as it may, if the content of the defendant's duty did extend to or include xx xxxxxxxxxx xx xxxxxx xxxx xx xxxx xxxx xxxxxxxxxxxxx xxx xxxxx xx xxxxxxxxxx xxxxxxxxxx xxxx xxx xxxx xxxxxxxx, the defendant did not breach that duty. The plaintiff was rotated out of that work. The fact that she was permitted to return to it from time to time is beside the point. xxx xxxxxxxxxx xxxx xxxxx xxx xxxxxxxxx xxx xxxxxxxxxxxx xx x xxxxxxx xxxxxx xx xxx xxxx xx xxxxxxxxx xxxxxx xx xxxxxxx xxx xx xxxxxxxxxx xxxx xxxxxxxxxxx xxx xxxx xxxx xxxxxx xxxx xxxx xxxx xxxxxx xx xxxxxxx xxxxx xxx xx xx xxxxx. xx xx xxx xx xx xxxx xxxx xx xxx xxxxxxxxx xx xxxxxxxxxx xxxxxxxxxx xxxxxxxxx xxxxxxx xx xxxxxxxxxx xxxxxxxxxx xxxx xx x xxxxx xx xxxxxxxxxxxx xxxx xxx xxxxxxxxx xxxxxxxx xxx xxxxxxxxx xxxxxx xxxxxxxxx.

Much of the evidence given in this case has proceeded upon the basis that the plaintiff spent somewhere in excess of ten years in undercover work. Many witnesses have given statements that appear to operate on such an assumption. The plaintiff's Schedule A of Particulars of Employment and Incidents provided details of her service history that did not support such an assumption. It is instructive to record what that document contains: "2. Between April 1991 and June 2000 the Plaintiff, when not specifically carrying undercover operative duties was required to carry out additional part time undercover duties. 3. In 1986 the Plaintiff carried out undercover investigative duties in the Drug Strike Force, Operation Explorer, Drug Law Enforcement Bureau at Kings Cross. 4. The Plaintiff was required to portray a street or drug dealer/user and was required to establish and maintain contact with drug suppliers, addicts and criminals. 5. The Plaintiff was regularly involved in dangerous contacts involving drugs, money and criminals. 6. In January 1988 the Plaintiff became a full time Undercover Operative of the Special Forces (Undercover Unit of the State Drug Group). 7. The Plaintiff was involved in portraying a street level drug dealer/user and was required to establish and maintain contact with drug suppliers, addicts and/or criminals and in the course of 1989 undertook those duties in multiple operations all over the State of New South Wales. 8. In 1989 the Plaintiff continued undercover operative work at the time in the Special Forces Unit (later Drug Enforcement Agency) up to April 1991. Again the Plaintiff portrayed or was required to portray a street level drug dealer/user and establish and maintain contacts with drug suppliers, addicts and criminals. 9. Between 1989 and April 1991 the Plaintiff was involved in frequent contact with drug dealers, addicts and criminals in relation to drugs, money and crime. 10. From April 1991 up to November 1995 the Plaintiff was a Detective at Parramatta. In that period of time the Plaintiff carried out several undercover operations in relation to drug dealings, breach of licensing laws and bikie gangs in the Parramatta area. 11. In 1993/94 the Plaintiff had a temporary transfer to the North West Major Crime Squad where the Plaintiff assisted in undercover operation in relation to drug dealers, addicts and criminals. 12. In 1995 the Plaintiff was involved in undercover work concerning car theft and rebirthing. 13. Between December 1995 and 1997 the Plaintiff was Chief of Detectives at Granville and again was involved in undercover duties in relation to drug dealers, addicts and criminals. 14. Between 1997 and 1999 the Plaintiff was a Commander at the Macquarie Anti Theft Squad. In this position she also undertook undercover duties involving drug dealers, addicts, criminals, murder investigations and kidnapping investigations. The duties particularly involved undercover duties investigating a murder by a criminal named "CE-1". 15. Between 1999 and 2000 the Plaintiff was a general duties officer at Parramatta Local Area Command. During this period of time the Plaintiff gave expert evidence in trials relating to drug dealers, these dealers being people that she had established contact with during various periods of undercover work."

The clear evidence of Dr Selwyn-Smith, set out above at par [134], is that "it is the nature of the work that is traumatic, not necessarily the duration of the work". He also said, after referring to a series of stressful and frightening incidents to which the plaintiff had been exposed, that "[t]aken in totality this in my judgment is far more significant than the exact number of hours, weeks, days, months she worked as an undercover officer". I prefer this evidence of the plaintiff's treating practitioner to other evidence that favours a different conclusion. There is no sufficient support in the evidence for the existence of any breach of this supposed duty. If this particular of negligence were to be made out it would require support at least from epidemiological material, either locally or abroad, or its equivalent. There is no such evidence and no other evidence that satisfies me that exposure to undercover work for some arguably excessive period can be separated from exposure to the work at all as an identifiable cause of psychiatric injury. Was there a causal connection between the plaintiff's psychiatric injury and any established breach of duty on the part of the defendant?

Allowing for the possibility that there is scope for a different conclusion about the defendant's breach of its duty, I will proceed to deal with the issue of causation upon the assumption that the alleged breaches had been established.

The plaintiff has not demonstrated the existence of any circumstance or situation to which she was exposed as the result of inadequate training that caused her to suffer any loss not otherwise associated with exposure to undercover work in the normal course. As discussed earlier, the plaintiff emerged from her initial years in the undercover unit as an accomplished and well-respected undercover officer in high demand. She was at least by then well trained and no subsequent exposure to anything arguably causing loss or damage could be legally ascribed to deficiencies in her training. Even if it could, no such deficiencies are identified. If the allegation is that some incident prior to 1991 that caused loss or damage resulted from insufficient or inadequate training, it has not been identified either.

The plaintiff has not demonstrated that her psychiatric condition was caused by a failure by the defendant to provide counselling or psychological or psychiatric treatment. Proof of her case requires the demonstration of an injury caused by the breach of duty alleged. In the present case, damage having been caused arguably by her work in the absence of any breach, it is sufficient for the plaintiff to show, on the balance of probabilities, that a breach of the defendant's duty contributed to her loss and damage, even if it was not the sole cause. I find as a fact that the plaintiff would not have revealed her condition to anyone if counselled and would not have attended any additional counselling or treatment, in whatever form, if it had been provided as the plaintiff alleges it should have been. The plaintiff would have preferred her own career prospects to the preservation of her health even if ordered to attend for psychiatric assessment and in all likelihood would have been more likely to remain silent if there were any perceived, let alone real, connection between the counsellor or doctor and the police service. Furthermore, I am not satisfied that the plaintiff has demonstrated that her present condition would have been in any way different if the defendant had offered the treatment for which she contends and she had actually cooperated. For the same reasons there was no loss caused by the alleged failure by the defendant to notify the welfare or psychology units.

According to the plaintiff, reintegration, 'de-roling', debriefing and rotation should have been provided so as to ease or smooth the way for her to move from undercover work to mainstream policing or between undercover work and mainstream policing when performed on a part-time basis. The plaintiff's case is that moving her from one role to another was associated with breaches of duty and that the breaches caused psychiatric injury. The plaintiff has not satisfied me that this is so. I have referred in part to this in the discussion about breach. I find it difficult to accept in the absence of very specific evidence dealing with the point that an experienced and operationally hardened undercover police officer would suffer psychiatric damage, as opposed to personal discomfort or professional disruption and embarrassment, or even 'stress', when required to relocate to another aspect of work in the course of her chosen occupation. I reaffirm my view that it is part of the plaintiff's case, in effect, that the consequences of ceasing undercover work were worse or at least as harmful as the work itself. I am unable to accept that proposition. Reintegration, counselling, de-roling or referral to the welfare unit would in my view have had no impact upon the plaintiff's response to an unavoidable consequence of work that had as its fundamental and overarching method the deceitful befriending of suspected criminals by the establishment of contrived relationships of trust and confidence that were inevitably discarded.

The concept of 'flagging' is equally problematic. The plaintiff effectively disguised anything that may have afflicted her. The defendant well knew that she had been in undercover operations that were potentially productive of cumulative stress. The plaintiff has provided little if any content to the suggested obligation but in colloquial terms it appears to be an allegation that the plaintiff was someone who the defendant should have kept its eye on. If it had, the defendant would have observed a highly successful and ambitious individual in great demand with commendations and awards and demonstrated academic excellence. If the defendant had flagged the plaintiff in these circumstances it would in my view not have chosen on the balance of probabilities to do any more or less than it did in fact. I am unable to find that any breach of the sort alleged caused loss on the part of the plaintiff.

Finally, there is no demonstrated causal connection between the plaintiff's psychiatric condition and the length of time that she performed undercover work. As I have previously emphasised, the plaintiff appears clearly to have thrived in her role as an undercover operative. Despite a faint suggestion that her involvement in such work over time was not as a result of a choice on her part, there is no evidence to suggest that the plaintiff performed the work only because she was ordered to do so and against her will. The "pressure" that she spoke of was more akin to flattery to which she succumbed than anything else. I do not accept that the plaintiff was pressured in the sense that she was unreasonably coerced to perform the work by undercover supervisors who were keen for her assistance. Time and again by her own account the plaintiff agreed to return to the undercover role. It defies sanguine analysis to suggest that this was causing a psychiatric injury that did not emerge or was not detected either by the plaintiff or her medical advisers at any time before 1999. As the plaintiff said, with reference to the time before Operation Rhino, "I thought I was coping okay". The plaintiff performed no undercover duties after that and her condition did not become florid until 2003. The plaintiff’s undercover work had by then long since ceased. Accepting that undercover work was a cause of the plaintiff's psychiatric injury, there is no compelling evidence that the length of time that she performed it was a contributing cause. The evidence of Dr Selwyn-Smith is clearly to this effect.

It is important as well to recall that the plaintiff was very empathetic with those who were the subject or her undercover work. This included not only those who were the targets of particular operations and thereby vulnerable to arrest and conviction, but also their friends and dependants. It is well known that this is a function of the type of work performed by undercover officers and that not all police officers will agree to undertake this work for that reason. The plaintiff recognised in herself the existence of this potential for conflict and was told in effect to work out where her loyalties lay. Whether or not she was able to accommodate the problems that this created for her is not absolutely clear. The plaintiff does claim that the adverse effects upon her of her empathy for others led to psychiatric injury and that this was caused by the fault of the defendant.

The plaintiff has never asserted that the defendant should have wholly prevented her from performing undercover work at all because this aspect of her personality or makeup rendered her particularly vulnerable or susceptible to injury as a result. But the reality would appear in fact to be that part of her loss was caused in that way

At the other end of the spectrum were the effects upon the plaintiff generated not by her concern for others but by a natural concern for herself. The plaintiff's undercover work is replete with examples of this. This throws into focus the plaintiff's case that exposure to unrelieved and relentless stress or situations creating it were the result of the defendant's actionable failures.

The starting proposition, however, must be that undercover work, even absent the alleged breaches of duty, was associated with stress that it caused. The plaintiff's case is that some part of her psychiatric injury was caused by one or more breaches of duty by the defendant that acceptable exposure to undercover work would not have caused. But what part? Properly understood, the plaintiff's case on causation is that the work she was required to perform was accompanied by an acceptable or permissible level of risk to her health provided that the defendant took the steps she alleges it failed to take. In other words, the plaintiff must demonstrate that the defendant's breaches caused, in the sense that they materially contributed to, some loss or damage that is qualitatively or quantitatively different from the damage that acceptable exposure alone to the work could have caused. The plaintiff has not done this in my view.

I am unable to discern how any breach by the defendant, as opposed to this unfortunate and inherent aspect of undercover work in the first place, led to the plaintiff’s psychiatric injury. Did the plaintiff contribute to her loss and damage by reason of her own fault or contributory negligence?

The defendant particularised its allegations as follows: (a) Failing to take sufficient or any care for her own mental, emotional and/or behavioural welfare. (b) Failing to monitor her own mental, emotional and/or behavioural status. (c) Failing to seek help from the defendant, or any other competent medical practitioner, for any mental, emotional and/or behavioural problems that she may have been experiencing. (d) Failing to advise the defendant's welfare branch, chaplaincy, peer support officers or psychology unit, or any other competent medical practitioner, of any mental, emotional and/or behavioural problems she may have been experiencing. (e) Failing to advise her supervisors of any mental, emotional and/or behavioural problems she may have been experiencing. (f) Failing to take advantage of the services of the defendant's chaplaincy, peer support officers, welfare branch and/psychology unit that there were available to her.

These allegations distil to two basic contentions. First, that the plaintiff kept her troubles to herself and cannot now complain about them if nobody noticed. Secondly, that if she was ill she should have sought some form of therapy, assistance or treatment and she failed to do so.

It is uncontroversial that a defendant will have to establish that a plaintiff's loss was caused or contributed to by the failings on the part of a plaintiff that are alleged. In this respect it is important to observe that the defendant's allegations of contributory negligence in large part mirror some of the plaintiff's own allegations of breach of duty. I am no more satisfied that the acts or omissions that are said to amount to contributory negligence are causally connected with the production of harm to the plaintiff than the breaches of duty alleged by her. I reject the submission that the plaintiff was guilty of contributory negligence for this reason alone.

Additionally, with respect to the suggestion that the plaintiff failed to disclose her condition to the defendant, I am not satisfied that that amounted to a failure by the plaintiff to take proper care for her own safety. There were strong indications in the evidence that police work in general and undercover work in particular was not for the faint hearted. There was a predominance of men over women in the police service and in undercover work the plaintiff was one of only a handful of women who were doing undercover work when she started. It is unrealistic to suggest in the context of a law enforcement agency that any employee with commendable and understandable ambition should be expected to imperil her prospects of advancement and promotion by disclosing to her superiors that she was unable mentally to cope with the work.

I am not satisfied that the plaintiff was responsible for any of her loss and damage. Damages General

The plaintiff turned 44 years of age on 15 June 2008. She became incapacitated for all work on 13 May 2003 when aged nearly 39 years. Her remaining working life from the date of judgment is 21 years to age 65. Her statistically suggested life expectancy is 45 years. Non-economic loss

It was a feature of this case that the plaintiff's medical condition was not the subject of serious challenge or dispute. At least one reason for this was undoubtedly the fact that she was retired hurt on duty and the medical condition underpinning that decision is the same condition with respect to which she now sues the defendant. Another reason is the absence of any significant attack upon the plaintiff's evidence on this issue or upon the medical experts who supported her. There was a challenge to the suggestion that the plaintiff's condition will never improve but the underlying psychiatric pathology appears to be accepted. These matters are examined in more detail below.

Before dealing with these issues, however, I should indicate my impressions of the plaintiff. I have no doubt that the plaintiff is significantly and genuinely psychiatrically unwell. There were many opportunities for me to observe the plaintiff both in the witness box and in the well of the court during the balance of the proceedings. She gave her evidence apparently labouring under severe emotional difficulties. She had obvious trouble from time to time concentrating on questions or at least in giving answers that were altogether responsive to the question. She sometimes appeared not to understand or appreciate the precise issues and often gave rambling answers. She became tearful on a number of occasions at times that were not necessarily or apparently forensically difficult for her. She was often red faced, red eyed and weepy. She spoke of excessive perspiration that afflicted her and certainly appeared flushed from time to time in the witness box. Having regard to the person and the personality that she once was, the figure that she presented throughout the trial was very sad and much diminished. I have no reason to doubt that all of her evidence was given truthfully and to the best of her ability.

The ultimate diagnosis was that the plaintiff suffered from a post traumatic stress disorder following upon an original diagnosis of an adjustment disorder with marked features of anxiety and depression. There was even some suggestion of the existence of organic changes to the plaintiff's brain although the evidence about this was to my mind inconclusive. It does not matter in any event. Nor does the precise description of the plaintiff's condition have a very important role to play in the final result.

The plaintiff's condition tended to fluctuate. She had varying degrees of coping ability. She decompensates and breaks down. Dr Selwyn-Smith harboured fears for her safety from time to time. He thought that her prognosis was guarded. The only significant improvement that he observed was when she was admitted to St John of God Hospital at Richmond where she attended the anxiety and depression programme for approximately three weeks. That altered her to a degree because she appeared to respond well to the safe and secure environment of the hospital milieu. Unfortunately, the plaintiff relapsed shortly thereafter. She had difficulty reinforcing or adopting some of the coping strategies that she learned in hospital and she declined. The doctor thought that the cross-examination in court to which she was exposed would also have made things worse.

As far as the future is concerned Dr Selwyn-Smith thought that the plaintiff would require ongoing psychiatric and psychological interventions. His own preference was to re-admit the plaintiff to the post traumatic stress disorder programme at Richmond for three weeks of intensive therapy. The plaintiff requires close psychological and psychiatric monitoring and ongoing medication in the form of anti-depressants and hypnotic medication. She continues to experience high levels of anxiety, depression and insomnia. Her treatment regime will be required over a period of at least two years.

Dr Selwyn-Smith was cross-examined on the plaintiff's chances of recovery or improvement. He agreed that there were studies to suggest that PTSD sufferers fell into one of three categories without any form of treatment as a general rule with one third getting better spontaneously, one third regressing and one third staying the same. There was no evidence to suggest that a delay in onset of treatment was likely to make the treatment less useful. The doctor said, "Even though I have expressed the view that the prognosis is poor, I am of the view that she can improve further with appropriate and intensive treatment. That's my view". He was asked further questions about this: "Q. And to what degree do you say with that treatment she would improve, expressed as a percentage? A. Well, I can't give you a percentage, I am talking about her as an individual. My clinical experience and my knowledge of her is I think we can help her further. We can improve her. I am of the view, however, that she has indelibly printed memories which will not erase completely, but despite that I am hopeful that with further intensive treatment she will ameliorate in some of her symptomatologies. Q. To what degree? A. To what extent, I don't know. I can't give you a categorical figure. If we got an improvement of 20 to 30 per cent, that would be a significant step forward."

The plaintiff's daily life is now fraught with fears and avoidance behaviour. She becomes anxious if she sees a police car or if she drives where she knows there is a police station. She holds irrational fears for the safety of her children. Her home life is disrupted. Her husband's evidence was that the plaintiff is no longer the impressive and self-assured, confident woman that he first met. Her ability to take care of the children and to attend to the tasks of daily living has been severely adversely affected.

It was submitted on behalf of the plaintiff that she was entitled to damages for non-economic loss at the rate of 50 per cent of a most extreme case. The defendant on the other hand submitted that the range for this head of damages was somewhere between 35 per cent and 40 per cent. Emily Owen, a treating psychologist in charge of the adult trauma programme at St John of God Hospital described the plaintiff as "a more severe case than [she had] ever seen". In my view the plaintiff is at least as severe as 45 per cent of a most extreme case and I would award damages calculated at that rate under this head. Past loss of wages

The plaintiff claims net lost wages in the sum of $196,687 from 1 July 2003 to 17 March 2008 and interest on that sum of $24,156. These figures are extracted from a final report of King Actuarial Consulting Pty Ltd dated 25 February 2008 tendered without objection by the plaintiff. The assumptions upon which these calculations were made were not the subject of dispute in the proceedings, including the assumption that the plaintiff has not worked in any capacity since May 2003 by reason of her medical condition. The calculations are detailed in an earlier report dated 13 March 2006. Although the calculations were updated for the purposes of the hearing commencing on 17 March 2008, there is little utility in recalculating the sums up to the date of judgment having regard to the conclusions that I have reached with respect to the plaintiff's future loss of wages. I would have awarded the plaintiff past loss of wages as claimed. Future loss of wages

The plaintiff's claim for future loss of wages has been calculated upon the following assumptions. First, that she would have remained a member of the New South Wales Police Service until the age of 60 when she would, secondly, have retired with the rank of Superintendent eighth year. The second assumption is based on a third assumption that the plaintiff would have been promoted to the ranks of Inspector Duty Officer, Chief Inspector and Superintendent on 1 July 2004, 1 July 2005 and 1 July 2015 respectively. The award rates of pay and other relevant conditions were not in dispute so that the arithmetical result that is produced is agreed.

I accept that the plaintiff would have retired at the age of 60. Although there was the opportunity to serve until the age of 65, there was evidence that this was not common in cases apart from those progressing to the rank of Deputy Commissioner equivalent or beyond. I accept that the plaintiff would have remained in the police service at least until she reached 60 years of age.

John Carroll retired from the police service in 2007 with the rank of Assistant Commissioner. He spoke of the plaintiff's likely career path to Inspector or Chief Inspector. He said that beyond that it was just speculation. However, the plaintiff originally aspired to seniority beyond this level. Whilst there can be no acceptable evidence that the plaintiff certainly would have reached the rank of Assistant Commissioner, there is good evidence to support the assumptions that underpin the plaintiff's calculations for future loss of income. The plaintiff's academic and operational excellence demonstrated throughout her career and attested to without exception by officers with whom she worked must be regarded as having set her apart from her contemporaries. The evidence about her is both extraordinary and uncontradicted. She was arguably headed for further success. The career path of Superintendent Julie Middlemiss, whose statement on behalf of the plaintiff was tendered in the proceedings, provides a valuable and instructive comparison against which to assess the plaintiff's probable career prospects up to the present time. In my opinion the plaintiff would have progressed at least as far and as quickly as Ms Middlemiss and in all probability further and faster. Attainment by the plaintiff of the rank of Superintendent by July 2015 is on one view a conservative prediction.

Dr Selwyn-Smith was asked about the plaintiff's prospects for return to some form of work in the future: "Q. And your expectation, which I take it is more than a hope but is a clinical expectation based upon your experience, is that some amelioration will occur over the next couple of years, the consequence of which will be an improvement in function; is that right? A. That's what I would hope for, yes. Q. And that you would then expect that she will be able then to return to some form of employment? A. Yes. Bear in mind she is not getting any younger, she is not qualified for anything else other than police work. It may take her - there may be some significant obstacles to overcome to get her in reasonable employment. Q. You are conscious that she is plainly of a high order of intellect? A. Oh, yes. Q. And she has tertiary qualifications, albeit in policing? A. In policing. Q. But she also has tertiary qualifications, does she not, in such things as hypnotherapy, whatever that might be worth? A. I am not sure she would get much work with hypnotherapy. Q. Also with qualifications which would seem in a more general sense to go to organisational skills? A. Yes. She is an intelligent lady who I am sure once the fog clears should be able to apply herself to something. I am hopeful of that. I can't guarantee it."

With respect to Dr Selwyn-Smith, I consider that that opinion is an over- statement of the prospects that the plaintiff will work again in any capacity. I would find as a fact that the plaintiff's psychiatric condition is such that, even though her treating doctor considered that she had some hope of returning to paid work in the future, on the balance of probabilities she will not do so. To the extent that there were any chance that the plaintiff might resume any work at all, it would in my view be unlikely to be relevantly remunerative or long lasting.

As at 17 March 2008, the then present value of the plaintiff's future loss of income, net of tax, relating to the period from that date until retirement at age sixty is $1,122,744. Allowing for a reduction for vicissitudes of 15 per cent, that produces a sum of $954,332, which I would have allowed under this head. Loss of superannuation entitlements

Loss of superannuation calculations informed by the same data, findings and assumptions come to $196,349, or $167,652 allowing 15 per cent for vicissitudes. I would have awarded that sum under this head of damage. Domestic assistance and care – preliminary issues

In the plaintiff's third amended statement of claim, as with previous editions of the pleading, there is no claim made for any form of so-called domestic assistance. This has not appeared to trouble either of the parties and that fact alone does not by itself trouble me either. This is because the plaintiff's case is particularised in her amended statement of particulars filed on 18 July 2007 in the following way: (a) From May 2003 to 1 February 2007 – 9 hours per week in relation to laundry, washing dishes, grocery shopping, general household duties such as cleaning, gardening and assisting with the children; (b) From 2 February 2007 to 4 March 2007 – 15 hours per week for duties in addition to that noted in (a) above as well as the additional duties of taking her children to school, collecting the children from school, organising breakfast with the children, making children's lunches, assisting with children's homework, assisting with cooking dinner and painting; (c) From 5 March 2007 to 30 March 2007 – (the Plaintiff was an inpatient at St John of God Hospital) a claim is made for 50 hours per week in relation to the duties noted in (a) above plus all of the additional duties in relation to caring for the children and home maintenance; (d) From 1 April 2007 to date a claim is made for 15 hours per week for all the duties noted in (a) and (b) above; (e) A claim is made in respect of future domestic assistance from 2 April 2007 to date at the rate of 15 hours per week for a least two years and probably longer [sic] for the duties noted in (a) and (b) above; (f) The claim for past domestic assistance is made at the statutory rate; (g) The claim for future domestic assistance is made at commercial rates or in the alternative at the statutory rates.

The way in which the plaintiff particularised her claim for 'domestic assistance' did not make it plain, or did not make it plain to me, how or in what respects the claim was a claim based on s 15 of the Civil Liability Act 2002 or s 15B of that Act or what was said to be the interaction between the two. For example, damages may not be awarded to the plaintiff under s 15B in respect of any loss of the plaintiff's capacity to provide gratuitous domestic services to the her dependants if (and to the extent that) she could recover damages for gratuitous attendant care services (within the meaning of s 15) in respect of the same injury that caused the loss, and the provision of such attendant care services to the plaintiff also resulted (or would also result) in her dependants being provided with the domestic services that she has lost the capacity to provide: s 15B(10). Oral submissions before me at the end of the evidence were not directed at this distinction and it was not something to which either party, or I, gave any particular attention. As will be apparent, s 15 deals with damages for gratuitous attendant care services whereas s 15B deals with damages for the loss of capacity to provide domestic services. The subsequent written submissions on behalf of the plaintiff suggested that a claim was made under both sections but the details of the claims remain obscure. No ultimately satisfactory analysis of the evidence relevant to the claims unfolded.

Furthermore, the defendant's submissions were principally directed to an issue said to arise upon the proper interpretation of s 15B, to the extent that it did not apply to the children of the plaintiff's husband from his first marriage. This was said in this case to be because of the definition of dependant, which is a restricted group wholly or partly dependant on the plaintiff "at the time that the liability in respect of which the claim is made arises". The defendant submitted that at the time that the liability in respect of which the claim under this section arose in the present case, there were no dependants (relevantly children) because the children of the plaintiff and her husband were not then born and the children of her husband's first marriage did not satisfy the definition for other reasons. The plaintiff appeared to maintain that no claim was made with respect to her husband's children but that their existence remained potentially significant on the issue of the time that the liability in respect of which the claim is made arose.

The state of confusion was enhanced by the plaintiff's written submissions in reply (see below) on s 15B to the extent that it was asserted that the plaintiff's claim under s 15B was "brought by the plaintiff in consequence of her inability to provide gratuitous domestic services to her dependents" which the submissions went on to describe as her "de facto partner's (later husband's) children and their own two children from the time of their birth in February 2000". This drew a sharp written response from the defendant stating that the "plaintiff's case for domestic assistance never included nor was it ever founded upon any claim for the children of the plaintiff's de facto partner (later husband)". A further written submission on behalf of the plaintiff in response only served to deepen the confusion as appears from the following extract: "2. The plaintiff confirms that she does not seek any monies by way of domestic assistance in relation to time spent caring for her husband's children of his former marriage. Whilst noting this, the plaintiff continues to rely in full on the submissions made in her earlier written submissions in reply ". (sic)

Without suggesting or directing any criticism for the uncertain position in which the proceedings concluded on these issues, I am not satisfied that I have yet had the benefit of a completely informed legal or factual debate upon them. I certainly do not feel that I am yet in a position to deliver a reasoned decision on these issues in a way that does justice between the parties. Having regard to the conclusions that I have reached on liability, it will be apparent that my opinions and findings on these issues will only achieve significance in the event that my decision on liability is found to be wrong. In order to take account of that possibility, and in accordance with usual practice, my preferred course would be for the parties to re-list the matter before me if so desired for further limited argument prior to final orders being made or entered.

In these circumstances I will await the parties' responses as to what approach should be taken on the issues of care and domestic assistance. Out of pocket expenses

These were agreed in the sum of $35,236. Future out of pocket expenses

The plaintiff's claim for future treatment and medication was particularised as follows: (a) Six consultations per year with her general practitioner at $80 per consultation. (b) Three consultations per year with her psychiatrist at $225 per consultation. (c) Twenty-six consultations per year with her psychologist at $186 per consultation. (d) Four case conferences per year between the plaintiff's psychiatrist and her psychologist at $411 per conference. (e) Medication at a cost of $25 per week.

The plaintiff has claimed in addition a series of regular admissions to St John of God Hospital at Richmond every year for a period of five years at $21,937 per admission.

It is obviously impossible to be certain about the course of the plaintiff's medical condition. Dr Selwyn-Smith was hopeful of some recovery or improvement and agreed that the plaintiff had at least a statistical chance of improvement and recovery. Having regard to the medical opinions to which I have been directed I consider that the plaintiff will in all probability require consultations with her general practitioner at least at the rate claimed by her. I also consider that three psychiatric consultations annually are warranted. I am less than satisfied, however, that fortnightly psychological consultations are necessary or that the plaintiff would be likely to adhere to such a therapeutic regime given her stoic personality and historical disinclination to seek medical help. Such a regime would seem to me to be appropriate for two years, reducing thereafter to monthly visits for the next three years before ceasing altogether. Case conferences on an annual basis would seem to me to be adequate having regard to the variations I have proposed. The costs of medication appear to me to be wholly reasonable and I would allow them in full.

The plaintiff was considerably assisted by her hospitalisation on an earlier occasion. It is almost certain that she would benefit from such intensive treatment again. I consider that two such periods of hospitalisation would be appropriate after one year and three years respectively.

I direct the parties to bring in short minutes reflecting the final sums ordered under these heads of damage. The Limitation Act defence

The defendant has pleaded that the plaintiff's cause of action is barred by operation of the provisions of the Limitation Act 1969. These proceedings were effectively commenced by summons filed in the District Court of New South Wales on 13 July 2004. The plaintiff filed a notice of motion in that court on 1 June 2005 seeking orders that the limitation period be extended pursuant to s 58(2), s 60I, s 60G and s 60C of the Act . In the alternative the plaintiff sought declarations that the limitation period had not expired by the date of the filing of the statement of claim on 30 July 2004 on the grounds that the plaintiff's cause of action did not accrue until March 2000 or up to May 2003. The plaintiff also sought an order, presumably in the form of a declaration, that she was under a disability pursuant to s 52 of the Act from August 1999 and that the limitation period was suspended "for running from that time or part of that time".

The transcript for 14 April 2008 contains the following brief discussion that is relevant to the present topic: "HIS HONOUR: In terms of the cause of action accruing, you say, of course, the reaction to the Orange incident is the first time the cause of action accrues? BURBIDGE: Yes. MENZIES: We accept that, your Honour."

This was re-emphasised a little later as follows: "HIS HONOUR: In other words she didn't have a cause of action exposed to these stressors until the Orange incident because they haven't caused loss but, once they did, that loss was referable to the series of breaches or one or many of them that you have identified in the past. BURBIDGE: Yes."

It is not in dispute that the Orange incident during Operation Rhino took place "in early 1999".

The plaintiff has filed an amended reply to which it is necessary to have regard in full: (a) That the Defendant is estopped from denying that the Plaintiff suffered the infirmity or injury of post-traumatic stress disorder as specified in the Certificate of the Police Superannuation Advisory Committee, dated 27 October 2005 and was caused by the Plaintiff being hurt on duty. (b) That the Defendant is estopped from denying that the Plaintiff's notional date of injury for the infirmity or injury of post-traumatic stress disorder as specified in the Certificate of the Police Superannuation Advisory Committee dated 27 October 2005 was 13 May 2003. (c) That the Determination or Decision of the Commissioner's Delegate dated 16 November 2005 operates as an admission by the Defendant that the Plaintiff suffered the infirmity or injury of post-traumatic stress disorder, as specified in the Certificate of the Police Superannuation Advisory Committee, dated 27 October 2005 and was caused by the Plaintiff being hurt on duty. A copy of the Determination or Decision of the Commissioner's Delegate dated 16 November 2005 is annexed hereto and marked with the letter "A". (d) That the Determination or Decision of the Commissioner's Delegate dated 16 November 2005 operates as an admission by the Defendant that the notional date of injury for the Plaintiff's infirmity or injury of post-traumatic stress disorder was 13 May 2003. (e) In reliance upon the determination of 16 November 2005 the Plaintiff determined to continue to her common law action against the Defendant and thereafter did so. (f) That as a consequence of paragraphs (b) and or (d) and or (c) above the Defendant is estopped from claiming that the Plaintiff in these proceedings is statute barred or in the alternative operates as admission by the Defendant that the Plaintiff in this matter is not statute barred.

A copy of the Determination or Decision of the Commissioner's Delegate dated 16 November 2005 is not in fact annexed to the amended reply that was filed in court on 19 March 2008.

The plaintiff's submissions in these circumstances were to the following effect. Section 18A of the Act is as follows: " 18A Personal injury (1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to: (a) a cause of action arising under the Compensation to Relatives Act 1897 , or (b) a cause of action that accrued before 1 September 1990, or (c) a cause of action to which Division 6 applies. (2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims."

The plaintiff's cause of action accrued in or around October 1999 during Operation Rhino. This was the first time that the plaintiff ever exhibited symptoms consistent with PTSD. She said, "it was the first time I'd ever actually felt like that". The fact and the timing of the onset of this damage was not the subject of cross-examination, and not being inherently incredible, must be accepted: Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 per Gibbs J at 370-371.

Section 52 of the Act is as follows: " 52 Disability (1) Subject to subsections (2) and (3) and subject to section 53, where: (a) a person has a cause of action, (b) the limitation period fixed by this Act for the cause of action has commenced to run, and (c) the person is under a disability, in that case: (d) the running of the limitation period is suspended for the duration of the disability, and (e) if, but for this paragraph, the limitation period would expire before the lapse of three years after: (i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or (ii) the date of the person's death, (whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates. (2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period. (3) This section does not apply to a cause of action to recover a penalty or forfeiture or sum by way of penalty or forfeiture, except where the person having the cause of action is an aggrieved party."

Section 11 (3)(b)(i) of the Act provides: "(3) For the purposes of this Act a person is under a disability: (a) . . . (b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of: (i) any disease or any impairment of his or her physical or mental condition. . . "

In State of New South Wales v Harlum [2007] NSWCA 120 her Honour Beazley JA (with whom Tobias JA concurred) concluded that the enquiry under s 11(3)(b) is directed to determining whether the person claiming to be under the relevant disability is able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice, and to give instructions about any action. Further, a fundamental aspect of bringing a claim is that it requires the exercise of willpower to initiate the claim. However, having the willpower is not the only question in making a decision to commence an action. The person is also making a decision to continue with the claim. See also Kotulski v Attard [1981] 1 NSWLR 115.

The plaintiff submitted that she was under such disability at least from her return from Orange in 1999. This is established according to the plaintiff by the evidence of Dr Selwyn-Smith, as well as that of the plaintiff and her husband.

Dr Selwyn-Smith concluded in his report of 6 April 2004 that "… Ms ["S"] has been significantly impeded in the management of her affairs in bringing a claim against the New South Wales Police Service in connection with her psychological features." In his report of 1 June 2005 he also expressed the following opinion: "I am of the view that Ms ["S"] did experience significant psychological turmoil and I have estimated that this had its onset certainly by the Year 1999. She was in my view experiencing significant symptomatologies connected with her Post-Traumatic Stress Disorder. Because of the emotional turmoil experienced, this would, in my opinion have prevented her from appropriately weighing choices and certainly proceeding to appropriately manage her legal affairs. I would date the onset of her impairments in regard to managing her legal affairs from approximately 1999 up until early February 2003 when she did accept my advice and proceeded to obtain appropriate legal counselling pertaining to her work difficulties."

Dr Selwyn-Smith's opinion was not challenged in cross-examination. The plaintiff submitted that the bar for which s 52 provides operates in the circumstances of this case to stop time running against the plaintiff until February 2003. The uncontradicted evidence is said to establish that the plaintiff does not require an extension of time in order to maintain her action.

The issue of the cross-examination of the plaintiff or of Dr Selwyn-Smith on issues relevant to her capacity in the present context, to which the previous submission on behalf of the plaintiff alludes, was more than thoroughly debated on 14 April 2008; see transcript pages 1 to 10 on that day. Mr Menzies plainly indicated at page seven that he at no time intended to seek to cross-examine the plaintiff about the matter "because it is really an objective consideration of material and it is a medical opinion expressed upon the material".

In my opinion the debate was to some extent a diversion from the issue of whether or not the plaintiff was substantially impeded in the management of her affairs in relation to the cause of action in respect of the limitation period for which the question arises. I found the evidence of Dr Selwyn-Smith and the plaintiff herself on this issue to be compelling and convincing. I am fortified in my view by reason of my observations of the plaintiff to which I have earlier referred. Put shortly, if the plaintiff's psychiatric condition was even at least as severe and disabling in the period between 1999 and 2003 as it appeared to my observation to be when she gave evidence before me, then I would have no doubt that she was relevantly disabled within the meaning of that expression in, and for the purposes of, the Limitation Act 1969 .

It follows that I would extend the period within which the plaintiff was entitled to commence these proceedings up to and including the date of filing of the summons in the District Court of New South Wales on 13 July 2004. Orders

In these circumstances I make the following orders: 1. Order that the limitation period within which the plaintiff was entitled to commence these proceedings be extended up to and including 13 July 2004. 2. Verdict for the defendant. 3. Direct that the matter be listed before me at some convenient date by arrangement with my Associate for the purposes of hearing further argument as indicated in pars [303] and [304], and for the purposes outlined at par [310], if required. 4. I shall hear the parties on the question of costs.