Michael Burke v MetLife Insurance Limited

1. [1]

   HER HONOUR: Michael Burke is a former police officer. He was medically discharged in 2010 and received a workers’ compensation payment on the basis of partial permanent disability. Mr Burke made a claim on two insurance policies for benefits on the basis that he is totally and permanently disabled (TPD) by reason of suffering chronic Post-Traumatic Stress Disorder (PTSD). The insurer, MetLife, did not accept the claims.

2. [2]

   In 2013, Mr Burke commenced proceedings against MetLife, initially in the Industrial Court of New South Wales but transferred to this Court in 2015. The matter was listed for hearing in September 2017 before Pembroke J, who suggested that MetLife should formalise its position by formally rejecting Mr Burke’s claim. MetLife did so on 23 August 2017. As matters unfolded, Pembroke J vacated the hearing, re-listing it in September 2018 on which occasion his Honour recused himself and the matter was listed for hearing before me in October 2018.

3. [3]

   Over seven days, I heard evidence from Mr Burke and two experts, Dr Ilana Hepner and Professor Richard Mattick. In addition, I received a substantial amount of documentary evidence spanning 30 years. The parties relied upon some 55 medical reports and certificates. The amount of material means that this judgment is longer that I would like, for which I apologise to the reader in advance. Mr Burke contended that the evidence was all one way and MetLife’s conduct amounted to bad faith warranting an award of damages for distress and anxiety and an order for indemnity costs. MetLife argued that Mr Burke was a liar and a malingerer. The case was hard fought. Thankfully, the parties were largely agreed on the legal principles, but disagreed strongly on the applications of those principles to the facts.

4. [4]

   As a police officer, Mr Burke’s employment was governed by the Crown Employees (Police Officers Death & Disability 2005) Award. Under the award, NSW Police was obliged to establish an insurance scheme with First State Superannuation to pay lump sum benefits in the event of death or disability of an officer, and Mr Burke made contributions to the scheme by deductions from his wages. In accordance with the award, MetLife issued two insurance policies to FSS Trustee Corporation, the trustee of the First State Superannuation Scheme. One of the MetLife policies was referred to as the “Basic Policy” and the other as the “Blue Ribbon Policy”. Mr Burke was a “Covered Person” under the Basic Policy and an “Insured Member” under the Blue Ribbon Policy.

5. [5]

   The policies were Group Life Policies: unlike an insurance policy issued by an insurer directly to a police officer, the insurer issued the policy to the superannuation fund under which a large number of police officers who made superannuation contributions were life insureds: section 11(1) of the Insurance Contracts Act 1984 (Cth). As such:

6. [6]

   The parties agreed that the terms of the policies were relevantly the same. Both policies paid a “Total and Permanent Disablement Benefit” in the event that a person was “Totally and Permanently Disabled” within the meaning of the policies. Using the definition in the Basic Policy, a person is TPD if one of the following applies (emphasis added),

7. [7]

   The seriousness of the injury sustained by the police officer is made plain by each of the sub-sections (i) to (iv), for example, the loss of the use of two limbs; or the permanently inability to bathe and feed; or that the office requires continuous care and supervision by another adult due to a permanent loss of intellectual capacity.

8. [8]

   The meaning of the definition has been comprehensively canvassed by the courts, and the parties did not contend for different interpretations. In assessing whether a person is “Totally and Permanently Disabled”, the insurer need not be being satisfied that the person will never be able to resume employment, but the lesser threshold that he or she is “unlikely ever” to do so: TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at [64]. As Leeming JA explained the meaning of “unlikely ever” at [88]-[89]:

9. [9]

   The closing words of the definition, “in the occupation or work for which he or she is reasonably qualified by reason of education, training or experience”, materially narrows the scope of the coverage given by the TPD definition from the perspective of the Covered Person as the police officer must satisfy the insurer that they are unlikely ever to return to work, not just as a police officer, but other work for which they are reasonably fitted by education, training or experience: Shuetrim at [66], [208].

10. [10]

    Under both policies, it is a condition of payment of any benefit that the police officer provide MetLife with such evidence to substantiate the claim as MetLife may reasonably require. Mr Burke says he has done this, and long ago. MetLife says he has not.

11. [11]

    The parties agreed that the insurer had an obligation of good faith and, when reaching a state of satisfaction referred to in the definition, to act in accordance with the principle expressed by McLelland J in Edwards v The Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113 at 77,536-7:

12. [12]

    Mr Burke submitted that MetLife had wholly failed to comply with its obligations as an insurer when dealing with his claim. MetLife disagreed.

13. [13]

    Mr Burke seeks declarations that he is totally and permanently disabled within the meaning of both policies and entitled to payment of benefits. Whilst MetLife accepts that Mr Burke has been diagnosed with and received treatment for symptoms of psychological illness, including PTSD, anxiety and depression, MetLife does not accept that Mr Burke continues to suffer from the condition, nor that is he thereby prevented from engaging in employment outside NSW Police.

14. [14]

    Further, Mr Burke says that it was an implied condition of the policies that MetLife would form an opinion as to his entitlement to benefits under the policies within a reasonable time. Mr Burke seeks a declaration that he had provided proof to MetLife to satisfy it that he was totally and permanently disabled before 4 November 2015, and alleges that MetLife breached the policies and a duty of good faith and fair dealing by failing to accept his claim by then, or at all. MetLife accepts that it owed Mr Burke a duty of good faith and fair dealing when considering his claims, and that there was an implied term in the policies that it would act reasonably and fairly in forming an opinion. But MetLife says that Mr Burke has not at any time provided proof to its satisfaction that he meets the definitions of TPD under the policies.

15. [15]

    In addition, Mr Burke seeks a declaration that MetLife’s decision of 23 August 2017 to decline his claims is vitiated by error of law, unreasonableness, absence of good faith and an absence of real and genuine consideration of his claims. By its decision, MetLife is said to be in breach of its obligations under the policies and in breach of its duty of good faith and fair dealing. Mr Burke says that MetLife was obliged to give due and proper consideration to Mr Burke’s claim, having regard to Mr Burke’s interests and to “not use the Court’s processes to obtain evidence only for the purpose of declining the claim”. MetLife denies that it breached its duties.

16. [16]

    Mr Burke seeks damages for breach of contract or breach of duty under the common law. This is somewhat problematic as there was no contract between Mr Burke and MetLife, and the claim for damages for breach of duty “under the common law” is somewhat imprecise. Nor was it clear what those damages were beyond the payment of benefits under the policies. Mr Burke referred in his pleading to $365 rent a week paid on his housing from 1 July 2011 to date in circumstances where he would have used the benefits paid in a timely manner to buy a home. Mr Burke also seeks damages for distress and anxiety, by reason of being subjected to surveillance and being required to litigate. There was no evidence to quantify these damages. Nor did I understand these claims to be pressed at trial.

17. [17]

    The parties agreed that the law as it stands is settled and clear: cases such as this follow a two-stage enquiry. The development of this two-stage enquiry began in Edwards v The Hunter Valley Co-op Dairy Co Ltd, where McLelland J was asked to determine whether Mr Edwards was entitled to any relief after the refusal by his insurer of a TPD claim under his employer’s superannuation plan where the insurer was required to form an opinion. At 77,537:

18. [18]

    Mr Burke submitted that the Court should consider, before proceeding with the two-stage approach, whether there has been a breach by the insurer in failing to make a decision within a reasonable time and to assess the police officer’s claim by reference to the material available at that time only. I will address this submission later in this judgment, save only to say now that I do not consider it to be consistent with authority, either in respect of TPD cases or generally.

19. [19]

    The parties agreed that TAL Life Ltd v Shuetrim represents the current law of New South Wales. The case also concerned an injured police officer. The principle issue was the construction of the phrase “unlikely ever” in the policies, but Leeming JA, with whom Beazley P and Emmett AJA agreed, also considered whether the approach in Edwards should be overturned, in light of doubts expressed in Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd (2015) 89 NSWLR 412; [2015] NSWCA 104 and McArthur v Mercantile Mutual Life Insurance Co Ltd [2002] 2 Qd R 197; [2001] QCA 317. His Honour declined to do so given the weight of intermediate appellate authority in support of Edwards. At [175]:

20. [20]

    Since Shuetrim, in Hannover Life Re of Australasia v Jones [2017] NSWCA 233, the Court of Appeal considered the standard of unreasonableness required before an insurer’s decision can be successfully challenged. The court rejected the Wednesbury standard of unreasonableness advocated by the insurer, although Macfarlan and Meagher JJA, in separate judgments, doubted whether “the different formulations … would produce different results” (per Macfarlan JA at [3]).

21. [21]

    Three further decisions have been handed down since the beginning of the trial: Folmer v VicSuper Pty Ltd & Anor [2018] NSWSC 1503, MetLife Insurance Ltd v Hellessey [2018] NSWCA 307 and Sargeant v FSS Trustee Corporation [2018] NSWSC 1997. I do not consider that any change the law, but rather are further examples of the application of these principles. In Hellessey, Meagher JA, with whom McColl and White JJA agreed, restated the applicable principles succinctly at [7]-[8]:

22. [22]

    Consequently, the task for this Court is to consider whether MetLife’s decision on 23 August 2017 was made following a reasonable and fair process of consideration, and was reasonable and fair on the material before it (Stage 1); and, if not, whether Mr Burke is totally and permanently disabled within the meaning of the policies (Stage 2).

23. [23]

    The case law is sparse as to how the Court should approach each stage from an evidentiary perspective. In assessing the facts relevant to the first stage of the inquiry, it is necessary to review the process by which MetLife considered the claim and the material available when it made its decision from the perspective of an insurer. As Slattery J explained in MX v FSS Trustee Corporation as Trustee of the First State Superannuation Scheme & Anor [2018] NSWSC 923 at [75]:

24. [24]

    In assessing the facts relevant to the second stage of the inquiry, the Court should do this by its own methods having regard to the material before it, subject to the usual rules of evidence, including any oral evidence led: Sayseng v Kellogg Superannuation Pty Ltd & Anor [2003] NSWSC 945 at [95] per Bryson J.

25. [25]

    Commonly, Stage 1 is heard first. It is only if the plaintiff is successful on Stage 1 that Stage 2 is heard. That is what was proposed to happen in this case, but the orders for separate determination of Stage 1 were vacated and both Stage 1 and Stage 2 were listed together before me. This was not satisfactory for the following reasons:

26. [26]

    Overall, I think that hearing Stage 1 first and then, if necessary, proceeding to Stage 2 is more cost effective. The judge hearing Stage 1 alone is less likely to be infused with evidence from Stage 2 and vice versa.

27. [27]

    Some description of PTSD is warranted. What follows is drawn from Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 5th ed., 2013) (DSM-5) and Expert Guidelines: Diagnosis and Treatment of Post-Traumatic Stress Disorder in Emergency Service Workers (Harvey et al., Black Dog Institute, 2015) (Expert Guidelines). The experts agree that I could rely on these materials as authoritative texts.

28. [28]

    Emergency workers, including police officers, are exposed to potentially traumatic events as part of their daily work and a degree of psychological distress is common after such experiences. In most cases, an individual’s personal coping strategies and established support networks will allow their responses to gradually settle down and quickly return to their usual level of function. However, for some individuals, such symptoms increase in intensity with the passage of time or may be persistent and thus lead to a psychiatric diagnosis. It is estimated that one in ten emergency workers suffers from PTSD.

What is PTSD?

1. [29]

   PTSD was formally recognised in the 1980s as a result of the need to understand the reactions of veterans returning from Vietnam. PTSD describes severe and persistent stress reactions after exposure to a traumatic event. According to DSM-5, at 271, a prerequisite to the symptoms of PTSD is that an individual must be “exposed to actual or threatened death [or] serious injury” by either:

2. [30]

   Here, Mr Burke says that he suffered psychological injury as a result of two classes of traumatic events:

3. [31]

   An individual with PTSD typically has four clusters of symptoms:

4. [32]

   DSM-5 requires that at least one symptom in each of these clusters be present for more than one month and be associated with significant distress or impairment in social, occupational or other important areas of functioning. PTSD regularly presents with co-morbid conditions such as Major Depressive Disorder and Alcohol Use Disorder.

What is the usual pattern for the onset and recovery from post-traumatic stress?

1. [33]

   According to the Expert Guidelines, there is strong evidence that many people who are exposed to a traumatic event or events commonly report post-traumatic stress reactions in the initial weeks after trauma, but that for most, these symptoms are transient and gradually abate, for both the general population and emergency workers. Although this is the general trend, there are also other trajectories for the emergence of mental health symptoms. In delayed-onset PTSD, the initial symptoms present more than six months after a traumatic incident. This is thought to account for as many as 38% of PTSD cases in military samples or 9% of police officers attending the World Trade Centre attacks in 2001. DSM-5 confirms that there is abundant evidence for “delayed expression”, that is, where some symptoms appear immediately but there is a delay in meeting the full criteria for PTSD. DSM-5 states, at 267:

2. [34]

   Given that emergency workers will expect to experience multiple episodes of potentially traumatic events whilst undertaking their usual work, emergency workers with PTSD may present in different ways to the general population. Emergency workers may experience a gradual build-up of distress and symptoms over a prolonged period of time, whilst others may present with acute onset of symptoms after a single event. Many emergency workers exposed to repeated traumas demonstrate sensitisation, with increasingly severe responses to each successive trauma exposure, when lesser traumatic events than previously would not have caused them distress begin to generate mental health problems.

Can PTSD be treated?

1. [35]

   According to the Expert Guidelines, emergency workers usually require 8 to 12 sessions, each of one to two hours, of either cognitive behavioural therapy (CBT) or eye movement desensitisation and reprocessing (EMDR). Many emergency workers will require additional treatment sessions, especially if they have severe symptoms, have experienced multiple traumatic events or have co-morbid mental health problems. Medication is also a treatment option, including anti-depressants.

2. [36]

   Emergency workers with PTSD can often return to work once their symptoms begin to improve, even if they are still undergoing active treatment. Whilst returning to work is important for individual wellbeing and recovery from mental illness, this presents difficulties with PTSD where emergency workers experienced the trauma exposure at work. As avoidance of environmental reminders of the traumatic experience is a core feature of PTSD, many emergency workers with PTSD find returning to work difficult. Support in the workplace is important to enable emergency officers suffering PTSD to recover from the condition: a study of over 250 traumatised police officers found that workplace factors such as lack of perceived organisational support, job insecurity and job dissatisfaction were associated with increased rates of PTSD.

Can PTSD be feigned?

1. [37]

   According to the Expert Guidelines, diagnosing PTSD amongst emergency workers is a complex task and takes time and multiple assessments using clinical interviews, structured assessments, self-reporting and collateral history. The Expert Guidelines expressed concern about the quality of diagnostic assessments, noting a recent Australian study which found that only one in 31 PTSD diagnoses of emergency workers seeking compensation met the minimum standard for diagnosis. The Expert Guidelines warned:

2. [38]

   In this case, MetLife relied heavily on the use of such psychological tests, in particular, MMPI-2 and MMPI-2-RF as pointing to exaggeration and feigning by Mr Burke. It is necessary, therefore, to explain these tests as well.

Minnesota Multiphasic Personality Inventory-2 test (MMPI-2)

1. [39]

   The MMPI test was developed in the 1940s to facilitate more accurate diagnosis of patients being treated at hospital. Subsequent versions of the test have been published, including MMPI-2 in 1989 and MMPI-2-RF in 2008. According to the manual used by psychiatrists to administer and interpret the test, MMPI 2 RF Minnesota Multiphasic Personality Inventory-2 Restructured Form - Manual for Administration, Scoring and Interpretation, (Ben-Porath et al., University of Minnesota Press, 2011) (the Manual), by the 1980s, MMPI-2 had become the most widely-used measure of personality and psychopathology in the world.

2. [40]

   The test contains “Clinical Scales” which assess levels of types of behaviour, for example, Anti-social Behaviour. Elevations on the Clinical Scales indicate certain psychological conditions. MMPI-2 also contains “Validity Scales” which assess three threats to the validity of the test results: non-responsiveness, over-reporting and under-reporting. Non-responsiveness means that the test-taker does not read, understand or response relevantly to the test. Over-reporting occurs when the test-taker’s self-presentation portrays a degree of dysfunction that is not credible. Under-reporting occurs when the test-taker’s self-presentation suggests a level of functioning that is better than would be indicated by a hypothetical objective assessment. There are five Validity Scales directed to over-reporting and two to under-reporting.

3. [41]

   Mr Burke did the MMPI-2 test in 1998, 2003, 2005 and 2006. On each occasion, there was no evidence of non-responsiveness, over-reporting or under-reporting, nor any evidence of PTSD on the Clinical Scales. In 2016 and 2018, Professor Mattick and Dr Hepner respectively administered the MMPI-2-RF test. There was no evidence of non-responsiveness or under-reporting but Mr Burke’s scores were noticeably high on the over-reporting Validity Scales. The following table summarises the over-reporting Validity Scales, the scores obtained and how the Manual says the scores may be interpreted.

4. [42]

   How these scores should be interpreted in Mr Burke’s case was the subject of strong disagreement between Dr Hepner and Professor Mattick. I think perhaps Dr Hepner put it best, and I do not think that Professor Mattick would necessary disagree with her comment that:

Mr Burke

1. [43]

   Mr Burke is a pleasant, intelligent and articulate man. As a former police officer, Mr Burke was experienced in giving evidence, although doing so in a personal matter is not, I suspect, the same as giving evidence as part of one’s job. Mr Burke found giving evidence stressful and was upset from time to time. MetLife made no bones about the fact that it considered Mr Burke’s insurance claim to be ill-founded, and that Mr Burke exaggerated his circumstances to doctors in order to support his insurance claim. The cross-examination was, as a consequence, sometimes offensive in nature and Mr Burke’s response was, on occasion, combative and aggressive. Mr Burke did, from time to time, give unsolicited answers which were in the form of advocacy, advancing reasons why his evidence should be accepted. He did pick up clues from his counsel’s objections as to what those reasons were. On other matters, Mr Burke made reasonable concessions and some of his explanations were inherently plausible.

2. [44]

   On his second day of cross-examination, Mr Burke appeared unshaven and was argumentative and uncooperative. He endeavoured to explain medical history contained in various medical reports by reference to how he was feeling on the day he met the doctor rather than generally. His evidence on this subject was evasive and inconsistent, and seemed unlikely as the doctor was ordinarily taking a history from Mr Burke’s childhood to the date of examination. Against this, Mr Burke was frequently challenged in cross-examination on events which had happened many years before, and it was not surprising that on occasion Mr Burke could not recall exact details and that his 2016 affidavit did not refer to some of the events which had occurred so long ago.

3. [45]

   I was not sure that Mr Burke was always telling the truth. Mr Burke was evasive when cross-examined about making a workers’ compensation claim whilst engaged in other employment. Mr Burke’s explanation of a financial planner’s notes of a meeting with him was unlikely. Mr Burke’s evidence about the correction of his tax returns was unlikely. Mr Burke did tend to say what he thought would serve his purpose, and in some cases the answer was clearly wrong and self-interested, such as his description of the work involved with serving on the Tactical Response Group. Mr Burke also gave inconsistent and evasive answers, for example, as to how he recorded his alcohol consumption on contemporaneous forms as compared with how he described it in these proceedings. Mr Burke explained the discrepancy unsatisfactorily: the contemporaneous forms recorded his alcohol consumption, “… for a specific time. The affidavit is an overall.” None of these matters, itself, means that Mr Burke is a liar at large.

4. [46]

   Mr Burke’s case is that he suffers from PTSD. If that is right, then some of Mr Burke’s reactions and behaviour as a witness may be referrable to that condition rather than being an unsatisfactory witness whose evidence I would not ordinarily accept without corroboration. I am not a psychiatrist and not qualified to divine to what extent Mr Burke’s presentation as a witness was referrable to PTSD or untruthfulness. By reason of the differing presentation of Mr Burke during the course of his evidence, and because I cannot discount the prospect that any unsatisfactory presentation was due to the condition which he claims to suffer, I have placed significant weight on contemporaneous records in respect of events which happened many years ago, and are likely to be more reliable in any event than a recollection given today.

The expert witnesses

1. [47]

   I found both experts to be impressive, considered and knowledgeable. Professor Mattick had worked with substantially more PTSD patients than Dr Hepner and over a greater period of time: Professor Mattick has seen over 1,000 patients suffering from PTSD over some 30 years whilst Dr Hepner had seen about 350 patients over 13 years. Although it was suggested that Professor Mattick thought ill of all PTSD patients, he appeared to me to be compassionate and empathetic to their plight, as was Dr Hepner.

2. [48]

   Two matters should be clarified at the outset. First, because of the two-stage process, it is necessary to identify those facts which were in possession of MetLife at the time it made its decision, and those which were not. I have endeavoured to do so in the following narrative, albeit not for every piece of paper.

3. [49]

   Second, both parties pointed to portions of medical reports which recorded histories taken from Mr Burke, as either supporting or undermining the veracity of Mr Burke’s claim. Indeed, in the further and better particulars of his claim, Mr Burke relied upon the histories provided to examining psychiatrists, including as to his symptoms. Mr Burke reminded me of the caution with which I should approach inaccuracies in histories in medical reports as described by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2] to [4], which I agree captures the challenges before me:

4. [50]

   Further, as explained per curiam in Paric v John Holland (Constructions) Pty Limited (1985) 62 ALR 85; [1985] HCA 58 at 87-88, there does not need to be “complete precision” between the history in a medical report and the facts as found: “[I]t is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value in accordance with both principle and common sense.”

5. [51]

   Mr Burke submitted that, even if I make adverse credit findings about him, it is not open to me to disregard the medical reports if the medical evidence records objective signs of his condition, citing Kirby J’s dissenting judgment in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 at [105]. I do not think his Honour’s views there expressed were necessarily inconsistent with the view of the majority, comprising Gleeson CJ, McHugh and Gummow JJ, that in cases concerning psychiatric conditions where no objective test exists to determine whether a patient has the symptoms of which they complain, if the credibility of the person who gave the history recorded in the reports is destroyed, then the opinion expressed may have little or no value as the basis of the opinion has gone: at [47]. I agree that some portion of the doctor’s opinion may remain unaffected by an incorrect history. It will depend on each report.

6. [52]

   Mr Burke was born in Papua New Guinea of an Australian father and Manus Island mother, and grew up on the central coast of New South Wales. In 1988, he completed the Higher School Certificate at Gosford High School and the following year, began work for the Commonwealth Bank as a trainee at its Martin Place branch. Mr Burke did not find the job suitable and left after three months. He worked as a factory hand at a company which manufactured thermal storage systems but, after six months, left this position as he found it boring and repetitive. He began working on a fruit tree farm in Gosford, presumably in some labouring capacity, and applied to join NSW Police. Mr Burke’s application was accepted and he trained at the Goulburn Police Academy in July 1990, began as a probationary constable in January 1991 and was attested as a constable of police in July 1992. Mr Burke began in the City of Sydney Patrol. In May 1995, Mr Burke was transferred to Hornsby Police Station as a general duties officer and field training officer. Mr Burke began the Constable Development Program and completed all subjects apart from the final assignment.

The Hornsby siege

1. [53]

   On 15 December 1996, at the end of Mr Burke’s sixth year as a police officer, Mr Burke was one of several police called to a domestic incident at a home in Hornsby. The event is important as it is one of the matters which Mr Burke attended as a police officer which he identifies as causing him great distress and ultimately giving rise to PTSD.

2. [54]

   The only contemporaneous record of what occurred is the entry made in the COPS system early the following morning by an officer who was not called to give evidence. Mr Burke objected to it being admitted on the grounds of relevance and hearsay. I admitted the COPS report as a business record, although since reserving judgment I have looked at this issue more closely. Section 69(3)(b) of the Evidence Act 1995 (NSW) provides that the business records exception does not apply where the representation contained in the record “was made in connection with an investigation relating or leading to a criminal proceeding”. The operation of the section was explained by Leeming JA, with whom McColl JA agreed, in Averkin v Insurance Australia Ltd (2016) 92 NSWLR 68; [2016] NSWCA 122. In that case, an insured made a claim on an insurance policy when his car was stolen and destroyed in a fire. The insurer declined cover on the basis of insurance fraud. At trial, the insurer tendered an extract from a police officer’s notebook and a COPS report to prove where the car was found. On appeal, the insured contended that the trial judge erred in admitting this evidence. Leeming JA considered that the application of section 69(3)(b) depended upon the circumstances in which the representation was made. At [115] and [118], [119]:

3. [55]

   His Honour considered that an investigation had not commenced when the police received a report of a burning car, but when the police formed the view that an accelerant had been used and that the case was likely one of arson. His Honour was unable to say whether the police notebook or the initial portion of the COPS entry, which recorded where the car was found, were made when the police received a call about the fire, or later. At [120]:

4. [56]

   In this case, the COPS entry was made at 3.10 am on 16 December 1996 in respect of an event which was initially reported at 7.45pm on 15 December 1996. In the intervening period, there can be no doubt that a significant event occurred which required the attendance of many police of different specialisations. By the time the COPS report was made, it seems to me that an investigation was underway. The COPS report in its entirety is therefore not admissible as a business record.

5. [57]

   I note that the purpose of the exclusion in section 69(3)(b) is to exclude business records prepared where there is a link with litigation and thus the records may contain self-serving statements: Averkin at [114]. Whilst the application of that exclusion is readily understandable if the COPS report was sought to be relied on in any proceedings involving the Person of Interest, such a concern must be less where the COPS report is relied upon by the police officers who attended an incident in respect of a claim for injuries sustained while doing so. Indeed, in this case, the COPS report is likely to be the most reliable record of what happened as the record was made within hours of the event at a time when no claim for personal injury was contemplated. In the absence of the COPS report, the next most contemporaneous report is eight months later in a workers’ compensation form completed by Mr Burke which could itself contain a self-serving statement. But that is the effect of section 69(3)(b) and so, on reflection, I accept that the COPS report was not admissible as a business record.

6. [58]

   However, MetLife had access to the COPS report when it made its decision, having obtained the document on subpoena from NSW Police in December 2015. It is thus admissible, as to Stage 1 at least, for a non-hearsay purpose, being evidence of the information before MetLife when it made its decision: section 60 of the Evidence Act 1995 (NSW). I will disregard it in Stage 2, although this illustrates the difficulties posed for a judge hearing both stages.

7. [59]

   The COPS report records (emphasis added):

8. [60]

   The siege was over within two and a half hours of the argument erupting at the home, which led to a call to police. Importantly, the Narrative Details in the COPS report referred to the Person Of Interest “brandishing a rifle” at the police saying, “It’s loaded, and I’m not afraid to use it”. “Brandishing” suggests that the person waved the rifle about by way of threat or display, or in preparation for action: Oxford English Dictionary (Oxford University Press, online, 2019). It does not suggest that the person pointed the gun directly at any particular officer or cocked the rifle.

9. [61]

   However, the COPS entry also records that, at 9.30 am on 16 December 1996, the POI was released from hospital and taken to Hornsby Police Station where he was charged with various firearm offences and six counts of assault on police officers. In the Incident Details of the COPS reports, the Modus Operandi Keywords for the offence are recorded as “POIs pointed rifle at police”. This may put a different complexion on what happened, or may have been key words selected from a “drop down” menu. The author of the COPS entry did not give evidence. Whether the POI “brandished” or “pointed” a rifle, the incident was undoubtedly alarming and stressful for the police officers who attended.

10. [62]

    According to NSW Police’s records of leave, Mr Burke continued to work after the Hornsby siege without interruption until 2 February 1997, when he took two weeks’ annual leave. In June 1997, Mr Burke took leave of absence from 5 to 8 June 1997 to look after his sick father. From 15 to 28 June 1997, Mr Burke took a further two weeks’ annual leave.

11. [63]

    Whilst on annual leave, on 24 June 1997, Mr Burke tendered his resignation from NSW Police, with his last day of service to be 21 July 1997. On the conclusion of Mr Burke’s annual leave, he took sick leave until 21 July 1997. According to Medicare records, Mr Burke did not see any medical practitioner during this period of sick leave. However, Mr Burke told Dr Maclean in September 1997 that he took the sick leave as stress leave on the recommendation of his patrol commander.

First claim for PTSD

1. [64]

   On 24 July 1997, after completing his service with NSW Police, Mr Burke saw a general practitioner in Gosford, Dr Schulze, who diagnosed Mr Burke as suffering from PTSD as a result of the Hornsby siege. Dr Schulze declared Mr Burke to be unfit for work for two months, and indicated that he would arrange for Mr Burke to be seen by “N. Rosen”. Mr Burke did not act on the referral.

2. [65]

   On 8 August 1997, Mr Burke completed a workers’ compensation claim form, declaring that he had been affected mentally by the Hornsby siege and suffered from PTSD as a result. Mr Burke recorded that he was “involved in a siege (rifle pointed at me at close range)”. This is broadly consistent with the COPS report. Mr Burke confirmed that he did not have any other employment at the time, although he may in fact have been working at a funeral home. Mr Burke claimed wages for 55 days lost, being from 15 June to 31 August 1997. Mr Burke began to receive weekly workers’ compensation payments.

Mr Burke applies to re-join NSW Police

1. [66]

   On 18 August 1997, two months after resigning from NSW Police, Mr Burke completed a Rejoinee Application Form. Mr Burke said he had been working as a funeral director since leaving NSW Police and had acquired skills in customer service, public relations and carpentry. Mr Burke later told Dr Maclean that he found this work completely unsatisfactory. Mr Burke also completed a medical history declaration form, stating that he drank three beers a week. He said he had suffered an anxiety or stress-related condition, explaining:

2. [67]

   Attached to Mr Burke’s application to re-join NSW Police was a statement prepared by Mr Burke as to why he had left the police, saying (emphasis added):

3. [68]

   The psychologist to whom Mr Burke referred in his statement was likely Dr Maclean. It appears from Mr Burke’s statement that Mr Burke’s wife and Dr Schulze were both concerned about Mr Burke’s condition at a result of the Hornsby siege, but that Mr Burke did not accept Dr Schulze’s diagnosis of PTSD. At the hearing, Mr Burke said that he did not refer to psychological symptoms in his letter to NSW Police because he was not suffering symptoms when he wrote it, “It’s not something that’s every day, every minute of every day… And at that time of writing that letter, I can only make the assumption I wasn’t having the effects of the siege.”

4. [69]

   In September 1997, Mr Burke was seen by Dr Neil Maclean, a psychiatrist, who reported his findings to NSW Police. According to Dr Maclean, “basically he came along because he needed a psychiatric report to state that he was fit to return to the Police Service.” Dr Maclean took a detailed history from Mr Burke from his childhood and noted that he had separated from his wife and their relationship was irreconcilable, continuing:

5. [70]

   Dr Maclean recorded why Mr Burke had chosen to leave NSW Police in terms consistent with Mr Burke’s statement, as follows:

6. [71]

   Further, Mr Burke told Dr Maclean that his wife became more insistent that he leave the force following the Hornsby siege and threatened to leave him if he did not resign. Dr Maclean reported:

7. [72]

   Dr Maclean concluded, albeit on the basis of one interview:

8. [73]

   There is an inconsistency between:

9. [74]

   Amidst the paperwork accompanying the Rejoinee Application Form is an internal NSW Police memorandum recording that Dr Sharp interviewed Mr Burke:

10. [75]

    In February 1998, NSW Police advised Mr Burke that his application to re-join had not been successful:

11. [76]

    In April 1998, Mr Burke wrote to NSW Police appealing against its decision, and in particular seeking to answer the concerns alluded to by NSW Police in the letter of rejection, saying:

12. [77]

    Mr Burke explained that, although he had joined NSW Police with ideals and dreams, the “constant harassment” of his former wife, which was “quite severe”, affected his work and sick leave, which he admitted was “not of a good standard”. Mr Burke said he resigned from NSW Police with great regret “after constant harassment from my wife and threats of her leaving me”. Mr Burke explained the circumstances surrounding a number of complaints which had been made against him, an incident in respect of which he was spoken to by a supervising officer, and an apprehended violence order taken out by his former wife:

13. [78]

    Mr Burke’s appeal was successful and, in September 1998, Mr Burke was permitted to be reviewed for fitness to re-join the force. On 9 September 1998, Mr Burke passed the medical but was referred to further assessment by a psychologist to confirm his fitness for policing duties. On 10 September 1998, Mr Burke was assessed for PTSD by a clinical psychologist, Michelle Fisher. Such an assessment was appropriate given that Mr Burke had made a workers’ compensation claim for PTSD. The history given by Mr Burke to Ms Fisher included the following: (emphasis added)

14. [79]

    In these proceedings, Mr Burke disclaimed Ms Fisher’s conclusions as “very vague” and explained that he may have told Ms Fisher that he did not have any significant problems as a result of the siege because, on the day of the interview, he may not have been experiencing such problems. Mr Burke said that after about a year away from NSW Police, his anxiety and depression seemed to have gone away and, at the time of this examination, “I was certainly feeling a lot better than … shortly after the siege. My symptoms had improved”. Mr Burke was asked whether he was trying to downplay any potential psychological effect from the Hornsby siege at the time he was seeking to re-join the Police Force and replied,

15. [80]

    Ms Fisher administered the MMPI-2 test and reported:

16. [81]

    Ms Fisher’s report is important and, I think, consistent with contemporaneous evidence from around this time. That is, Mr Burke’s attendance at the Hornsby siege was likely stressful and traumatic. It seems likely that he was distressed by what occurred, such that his wife encouraged him to see their local doctor and the doctor diagnosed PTSD, likely without the qualifications to do so nor having undertaken a comprehensive assessment. However, by September 1998, almost two years later, a reliable clinical test indicated that Mr Burke was not exhibiting symptoms of PTSD. Nor did Mr Burke feel himself to be continuing to suffer from PTSD at that time.

Mr Burke re-joins NSW Police

1. [82]

   In September 1998, Mr Burke’s application to re-join NSW Police was successful. Mr Burke was transferred to City Central Local Area Command in general duties. After six months, he transferred to a permanent plain clothes position in the Street Crime Unit. In 1999, Mr Burke was promoted to Senior Constable. In February 2002, Mr Burke transferred to North Region Anti-Theft and, in June 2002, to Tuggerah Lakes Anti-Theft. In May 2003, Mr Burke was counselled by NSW Police in respect of an incident.

2. [83]

   On 28 May 2003, Mr Burke applied to undergo the Street Level Operatives Course, that is, to learn how to undertake undercover work. In his application, Mr Burke noted that in July 1997, he resigned from the police force “for personal reasons”. He emphasised that he had good communication skills by reason of his time in NSW Police as well as his other work experiences before serving in NSW Police and during his period of resignation. Mr Burke made no reference, in his application, to the PTSD suffered as a result of the Hornsby siege. By the time of his application, those events were some six years behind him and, it seems, no longer troubling him. Mr Burke completed the Street Level Operatives Course. Mr Burke was asked why he chose to voluntarily apply to be an undercover officer in circumstances where he says he was suffering from post-traumatic stress. Mr Burke said that although he was suffering from PTSD, he continued on, “You don’t mention these things. You just do it.”

Mr Burke applies for Tactical Operations Unit

1. [84]

   In about September 2003, Mr Burke completed a medical declaration form as part of an application to be considered to join the Tactical Operations Unit. Mr Burke completed a form answering a number of questions including the following:

2. [85]

   On 1 October 2003, Mr Burke completed psychological tests in connection with his application. This included MMPI-2 testing. The results of the test were found to be valid with no major concerns reported. Mr Burke’s results on the Validity Scales for over-reporting and under-reporting were below average, that is, his responses neither exaggerated nor understated matters and thus his answers to the balance of the test could be relied upon to indicate psychopathology. As such, it is reasonable to conclude that as at October 2003, Mr Burke did not exhibit symptoms of PTSD. The fact that Mr Burke said, in the medical declaration form, that he had never suffered from PTSD also indicates that the stress experienced in 1996 and 1997 was behind him and, indeed, out of mind.

3. [86]

   On 7 October 2003, Mr Burke completed a six-monthly debriefing as a Street Level Operative. Over the preceding six months at least, Mr Burke advised that he had not been involved in a deployment that had distressed or traumatised him; that he did not think about or relive any of his undercover experiences nor avoid things associated with his undercover experiences. Mr Burke said that he felt he received adequate support and was comfortable with his deployment and wished to continue to do undercover work, acknowledging that this was a completely voluntary specialised field of policing. Mr Burke was asked how this was so, in circumstances where in these proceedings Mr Burke described his work as an undercover officer as very tense and emotionally draining, causing him to feel apprehensive, anxious, hyper-vigilant and fearful. Mr Burke replied that he had not had any life-threatening incidents in the six months covered by the debriefing, although he did not mention this in his affidavit but said there was no particular reason for not including it, “It just wasn’t put in”. Later in October 2003, Mr Burke was counselled by NSW Police in respect of a second incident.

4. [87]

   In about February 2005, Mr Burke again applied to be considered for the Tactical Operations Unit. He indicated that he had not consulted or received treatment for anxiety, depression, stress or other psychological episodes, nor ever suffered from PTSD. He continued to consume alcohol one day a week, and on that occasion had six drinks. He was asked whether, during his career, he had had any work injuries and advised that he had suffered whiplash in 2003, which was a reference to an accident in December 2003 when Mr Burke was conducting an operation in an unmarked police vehicle and a second vehicle drove into the rear of his vehicle. Mr Burke did not refer to his earlier workers’ compensation claim for PTSD, likely because by 2005 the PTSD had resolved long ago and Mr Burke did not recall having made the claim. Mr Burke said that he declared that he had never suffered from PTSD because, “I was living with it, didn’t realise I had it, but I was living with it. I was functioning.” Mr Burke completed a consent form for psychological screening, noting that he had no serious illnesses or injuries, either physical or psychological, that had required hospitalisation, rehabilitation or prescribed medication.

5. [88]

   In March 2005, Mr Burke underwent psychological screening, including MMPI-2 testing which, as in 2003, was reported to be valid with “no concerns”. Only one of the validity scales was above average, but still within the acceptable range. Mr Burke scored 56 on the K-r (Adjustment Validity) validity scale for under-reporting which, according to the manual, may be interpreted as follows: “There is no evidence of under-reporting. The Protocol is interpretable.”

6. [89]

   Mr Burke explained the stark difference between the questionnaires completed in 2003 and 2005, with his description of how he said in these proceedings he was feeling at that time. Mr Burke said the questionnaires related to a specific time when the report was made, whilst the affidavit was an overview. I think it is more likely that the questionnaires completed in 2003 and 2005 reflected Mr Burke’s self-assessment of his psychological state in those years rather than an affidavit prepared more than a decade later in legal proceedings. As at March 2005, I conclude from the contemporaneous psychological testing, psychological and psychiatric reports and Mr Burke’s own description of his mental state that, whatever PTSD he had suffered by reason of Hornsby siege, had resolved some years earlier. This is consistent with the general trajectory of post-traumatic stress described in the Expert Guidelines, including for delayed-onset PTSD.

Incident at Iguana Joe’s

1. [90]

   On 25 April 2005, Anzac Day, Mr Burke was off-duty with another police officer, Dan Gurnhill and Mr Gurnhill’s fiancée, Kate Rigg. Mr Gurnhill was a 24 year old police officer of two years’ standing. They went to the Gosford Races before retiring to Iguana Joe’s Waterfront Bar, where a fight took place. It is not necessary for me to find precisely what happened. Rather, the significance of the event is three-fold:

2. [91]

   The material to which I will refer in the next few paragraphs are NSW Police records of its investigation which were not available to MetLife at the time it refused Mr Burke’s claim. MetLife was, rather, dependent upon Mr Burke’s description of the events as given to treating and medico-legal psychologists and psychiatrists. I will examine Mr Burke’s version of these events, as conveyed to the medical profession, shortly. The statements gathered by NSW Police were not admitted as evidence of the truth of the content of the statements, but indicate what NSW Police was told about the incident in roughly the following sequence.

3. [92]

   The first report of the incident was to licensing police who happened to already be on the premises. Senior Constable Fishpool was approached by Mr Fordham and told that the alleged offenders involved in the incident were two off-duty police officers. Mr Fordham said he was unsure whether to report the matter or not as he did not want the officers to lose their job. Mr Fordham’s girlfriend voiced doubt as to whether anything would be done about a complaint given that the alleged offenders were police. Mr Fordham said he might sleep on it and maybe report it in the morning. In fact, Mr Fordham walked to Gosford Police Station, some 100 metres away. He spoke to Duty Officer Robson about what had happened, but said that he did not want to press charges. Sergeant Robson told Mr Fordham to go and get medical treatment and think about it. If Mr Fordham decided to report the matter, then Sergeant Robson assured him that the police would initiate any action that was required. Mr Fordham went to Gosford Hospital and was admitted for observation. He sustained a cut to the left eye, the left side of his lower lip and the large bruise to the rear of his head.

4. [93]

   Next, according to Sergeant Robson, at 6am on 26 April 2005, he received a telephone call from “a very distraught” Mr Burke who advised that he had been a victim of an assault and had his car damaged the night before at Iguana Joe’s. Sergeant Robson arranged to meet Mr Burke later that day and went to his home at 1:30pm where he took details of Mr Burke’s complaint and photographs of injuries to Mr Burke and damage to his car. Sergeant Robson told Mr Burke to come and see him at the station on his next shift so that a COPS entry could be completed and an investigation commenced.

5. [94]

   Also on 26 April 2005, Stuart Macdonald, an employee of E-Group Security, completed an Incident Report Log of events the previous evening. No objection was taken to the admission of this document and it was admitted without limitation. Mr Macdonald recorded that the incident occurred at 8:30pm on 25 April 2005. He was called over the radio to go to the balcony, from where he saw a group of males pushing and shoving at security. One of the males was Mr Gurnhill, whom Mr Macdonald restrained and escorted to the carpark where he released Mr Gurnhill and tried to settle him down without success. Mr Macdonald reported in the log:

6. [95]

   Next, at 4pm on 27 April 2005, Mr Burke attended at Gosford Police Station and gave Sergeant Robson details of what had happened. Whilst reporting the matter, Sergeant Robson described Mr Burke as emotional and very upset and considered his complaint to be genuine. At 4.04pm, a COPS entry was made. Mr Burke informed the police that he had been at Iguana Joe’s with Mr Gurnhill and both had been subjected to abuse because they were police officers and because Mr Burke had a darker skin tone. An object was thrown at them. Mr Gurnhill was tackled and punched in the head area. Other men joined in to assault Mr Gurnhill. Mr Burke stepped between Mr Gurnhill and his attackers and the parties separated and left the club. Once outside the club, the verbal threats continued and, as Mr Burke and Mr Gurnhill entered Gosford City Park, Mr Burke realised that they were being followed by the men. To confuse the men, Mr Burke and Mr Gurnhill decided to walk in the opposite direction to where Mr Burke’s car was parked. They entered the car park of Iguana Joe’s when a number of men, who were associates of the earlier incident, stood in their path. One of the men began to throw a punch at Mr Burke, and an altercation ensued. The parties separated and Mr Burke and Mr Gurnhill returned to Mr Burke’s car parked alongside Gosford City Park. They were followed and attacked. They feared for their lives and got into Mr Burke’s car. The men kicked the car a number of times and tried to open the doors. Mr Burke reversed the car and the man with whom Mr Burke had had an altercation earlier jumped onto the bonnet a number of times causing extensive damage. Mr Burke stopped the vehicle and the man got off the bonnet. Mr Burke and Mr Gurnhill drove away. It is important to note that, although Mr Burke reported that they were attacked by “men”, he did not say how many nor suggest, as he later did, that they were 12 members of the Rebels Motorcycle Gang.

7. [96]

   Next, on 28 April 2005, photographs were developed showing the injuries to Mr Burke and his vehicle. The photographs indicate that Mr Burke had bruises, broken skin, scratches, redness and a fat and cut lip. The bonnet of his car was badly dented and also showed foot marks.

8. [97]

   On 28 April 2005, police took a statement from Mr Fordham. He said that there was no interaction with Mr Burke and Mr Gurnhill inside Iguana’s Bar at all. He had left the club with his girlfriend Nicola Barr and his neighbour and they were discussing what to do for the rest of the evening. Mr Fordham said in his statement:

9. [98]

   On resuming consciousness, he asked his girlfriend what had happened and she pointed to the person who had hit him. Mr Fordham identified him as Mr Burke, who he had previously seen that evening and also at the gym at the Central Coast Leagues Club over recent years. Mr Fordham walked over to Mr Burke but each was restrained by security guards. The guards eventually let Mr Burke go and he walked with Mr Gurnhill away from the car park. Mr Fordham followed Mr Burke to his car:

10. [99]

    Mr Gurnhill then abused Mr Fordham, who slapped Mr Gurnhill on the face.

11. [100]

    As Mr Burke drove off, Mr Fordham said that Mr Burke put his window down and said “I’m sorry, I hit the wrong guy”. In his statement to the police, Mr Fordham concluded:

12. [101]

    At 11:15am on 28 April 2005, Inspector Joseph Cini took forensic photographs of Mr Fordham, in particular, the injuries to his lip and ear.

13. [102]

    On 29 April 2005, Detective Senior Sergeant Timbrell from the Licensing Section of Brisbane Water Local Area Command required the Iguana Joe’s to produce its CCTV footage of the incident. At 4pm on 29 April 2005, according to Senior Constable Fishpool of Brisbane Water Local Area Command, Mr Burke telephoned him and asked if he could get Mr Gurnhill’s driver’s licence back from Iguana Joe’s, adding:

14. [103]

    On 30 April 2005, Mr Fordham returned to Gosford Hospital reporting blurred and double vision.

15. [104]

    On 2 May 2005, the police took a statement from a security officer, Mark Ahmu, who was at Iguana Joe’s on the night. He described a scuffle on the back deck between Mr Gurnhill, who was apparently the aggressor, and another man. Mr Burke was standing away from them. The scuffle settled down but Mr Ahmu was later called to the car park where he saw Mr Fordham lying on his back in the garden area. He saw the mates of Mr Fordham walking towards Mr Burke saying, “You fucking knocked out me mate.” Mr Burke was cooperative and calm. About two minutes later, Mr Fordham came over to Mr Burke and shook his hand and said “Don’t worry about it mate” and Mr Burke said “I don’t know what went on.” Mr Ahmu said that Mr Burke did not appear to be intoxicated and was not aggressive but calm. Nonetheless, he was identified as being the person who hit Mr Fordham.

16. [105]

    On 3 May 2005, Stuart Macdonald, the author of the Incident Report Log, gave a statement to police. He described being called to a scuffle in the balcony area and escorting Mr Gurnhill out but “on the way [Dan Gurnhill] saw his fiance … talking to a guy” and this led to the events described in his log. Again, Mr Fordham’s girlfriend identified Mr Burke as having hit Mr Fordham:

17. [106]

    On 4 May 2005, Mr Fordham’s girlfriend, Nicola Barr, gave a statement to police. She described that, after leaving the bar, she caught a glimpse of a male person running directly towards Mr Fordham with his right arm raised in a position to hit him. The person struck Mr Fordham on the left side of his jawline and Mr Fordham immediately fell back and hit his head on the concrete and was unconscious with his eyes open. She became hysterical and heard someone say, “He’s a cop”. She got up and ran after the man who had hit Mr Fordham and said, “How could you do this, you’re a fucking cop”. Later, she and Mr Fordham followed the person who had hit Mr Fordham and his male companion to the car park. The male companion threatened them.

18. [107]

    On 4 May 2005, Mr Fordham gave a second police statement, having been contacted by Detective Senior Sergeant Timbrell to clarify various matters. Mr Fordham added to his earlier statement that, when he went over to Mr Burke’s car, Mr Burke was getting into his car. Mr Fordham said to Mr Burke “I can’t believe what has happened, you are a police officer you should know better than to do what you have done, you could have killed me”. Mr Burke said “Sorry”. Mr Fordham then put his hand out to shake his hand and said, “I don’t want to press charges, I think you should just go”. They shook hands and Mr Burke said “Look, mate, I’m sorry for what I have done.” Unfortunately, Mr Gurnhill then verbally abused Mr Fordham who slapped Mr Gurnhill on the top of the head “and Michael put me in a headlock and I fell to the ground, then he pulled my head back and I had trouble breathing and I thought I was going to pass out.” Mr Fordham jumped on the front of the car, landing on the bonnet as the car reversed back and falling onto the footpath. Mr Fordham kicked out and struck the vehicle on the back passenger’s side door. Mr Fordham was still suffering from the physical injuries sustained in the incident at the time he gave his supplementary statement.

19. [108]

    On 4 May 2005, the bar manager, Dean Singleton, gave a statement to police being broadly consistent with the statement of other attendees. On 9 May 2005, the operations manager of the bar, Paul Bartle, gave a statement producing a video tape of the security footage of the incident.

20. [109]

    On 10 May 2005, Daniel Howick gave a statement to police. Others referred to Mr Howick in their statements as “Rabbit”. He was one of the men involved in the altercation. He confessed that he was very drunk that evening but roughly described the sequence consistent with the statements given by others. After Mr Fordham regained consciousness, Mr Howick went with Mr Fordham to where Mr Burke was standing with security and Mr Fordham asked, “Why, what have I done to you?” and Mr Burke said “I thought you were somebody else”.

21. [110]

    On 11 May 2005, Nigel Perrett, a security officer at Iguana Joe’s, gave a statement to police. He heard Mr Burke say to Mr Ahmu, “It’s the wrong guy, I have done the wrong thing, I thought he was someone else.” Mr Burke then said to Mr Fordham, “It’s a mistake, I did the wrong thing.” Mr Perrett also described Mr Gurnhill as being the main aggressor in the evening’s events.

22. [111]

    It goes without saying that the witnesses who gave statements to the police were, at the time of the events in question, affected by alcohol to some degree or another. Mr Fordham may have been further impeded by having been rendered unconscious for a period of time. The overall picture which emerges from the statements gathered by NSW Police to that point in time was that Mr Gurnhill appears to have placed Mr Burke in a difficult situation. He appears to have become highly intoxicated and aggressive, engaged in a scuffle with another member of the nightclub who talked to his fiancée, was taken outside to the carpark where another scuffle ensued during which Mr Burke, perhaps in an attempt to assist his companion, ‘king hit’ Mr Fordham in a case of mistaken identity. Although Mr Burke appears to have apologised at the time, Mr Gurnhill’s verbal abuse provoked a groggy Mr Fordham to slap Mr Gurnhill which led to Mr Burke pinning the unfortunate Mr Fordham to the ground before driving off. Mr Fordham has done his best to show his indignation by jumping on the bonnet of the car and kicking the moving car as it drove away.

23. [112]

    None of the witnesses gave evidence in this case, apart from Mr Burke. But the point is that, on the face of these statements, the police needed to ask some questions of Mr Burke as to whether in fact he had ‘king hit’ Mr Fordham as the statements appeared to indicate. What the statements also tended to suggest was that the event as reported to the police by Mr Burke on 27 April 2005 may not have been accurate. The narration recorded in the COPS entry was materially different from the events as described by the witnesses. Any misdescription of the events by Mr Burke to Sergeant Robson was likely of greater concern to NSW Police as it may indicate that a serving police officer could not be relied upon to truthfully report matters of importance.

2005 arrest and interview

1. [113]

   On 16 May 2005, Mr Burke was arrested and interviewed by Detective Senior Sergeant Timbrell. MetLife had the transcript when it made its decision. Before participating in the interview, Mr Burke received advice from the Police Association. Detective Senior Constable Sherwood was present as a support person for Mr Burke. Mr Burke was cautioned but agreed to answer questions. Mr Burke said “I didn’t punch anyone or knock anyone out”. Mr Burke described what had occurred consistently with the COPS report. He added that the person who had abused him and Mr Gurnhill inside Iguana Jones was Mr Fordham: he was told this by Mr Gurnhill’s fiancée about a week after the incident. Mr Burke said he had seen Mr Fordham around the Central Coast and local gyms on many occasions, which one might think would have enabled Mr Burke to identify his abuser without the assistance of Ms Riggs. Further, Mr Burke complained that the men who attacked Mr Gurnhill inside the club were not ejected because they were associates of the security staff at the club. According to Mr Burke, it was Mr Fordham who followed him and Mr Gurnhill out of the bar and threatened him and prepared to throw a punch. Mr Burke described the events in interview as follows:

2. [114]

   Mr Burke described those who “ran at [him]” as “approximately a dozen… males”, being “[Fordham] and his associates”, who then surrounded Mr Burke at the car.

3. [115]

   Detective Senior Sergeant Timbrell challenged Mr Burke’s version of events during the interview, putting to him the versions contained in the police statements and, further, pressing Mr Burke as to why he did not go to the nearby police station when he feared for his personal safety, or immediately after he and Mr Gurnhill were attacked by a group of males. Mr Burke said he was not capable at the time of making a report to the police as he was so upset by the incident. Mr Burke signed the record of interview. The interviewing process, including signing the record of interview, took four hours.

4. [116]

   What can be seen from this is that Mr Burke’s version of events was very different from that contained in the security log and the police statements collected from the security guards and other people involved in the fracas. That does not mean that Mr Burke’s version of events was untrue. But it did mean that it was a matter worth investigating.

5. [117]

   MetLife did not have the documents referred to in the next few paragraphs when it made its decision. Mr Gurnhill was interviewed the next day. Mr Gurnhill gave a version of events consistent with Mr Burke. Mr Gurnhill added that security had stolen his driver’s licence and choked him. On 22 May 2005, the police interviewed Mr Gurnhill’s fiancée, Ms Riggs. She said that another man referred to as “Rabbit” came over to where she was sitting with Mr Burke and began calling Mr Burke a “wanker”. Mr Burke walked away. “Rabbit” later pushed Mr Gurnhill in the chest shoulder region and another man ran at Mr Gurnhill and pushed him into a table. Security removed Mr Gurnhill, whom she followed outside. She noticed Mr Burke outside walking with Mr Gurnhill through the car park. She later saw “Rabbit” and Mr Fordham amongst a group of eight men following Mr Gurnhill and Mr Burke. Ms Riggs did not see any of the critical events.

6. [118]

   The police also interviewed the Duty Officer, Sergeant Robson, and obtained a statement from Senior Constable Fishpool. Sergeant Robson said in interview:

7. [119]

   On 25 May 2005, NSW Police Forensic Services Group inspected Mr Burke’s vehicle as part of an Internal Affairs inquiry. The damage to Mr Burke’s car was clear from the photographs in evidence.

8. [120]

   On 3 August 2005, Dr Singh of Gosford Hospital gave a statement in respect of his examination of Mr Fordham, who attended at Gosford Hospital on 30 April 2005 with complaints of blurred vision and double vision of one day duration. Dr Singh opined that Mr Fordham may have had a concussion post fall with no residual clinical findings. He did not have a permanent injury or disability.

9. [121]

   On 14 August 2005, Mr Burke was transferred from the Anti-Theft Unit to general duties. In October 2005, Mr Burke was counselled by NSW Police in relation to a third unrelated incident.

10. [122]

    On 23 December 2005, NSW Police obtained a forensic report from Dr Hoskins of the Clinical Forensic Medical Unit in Brisbane at the request of Detective Senior Sergeant Timbrell, who wished to know whether Mr Burke’s injuries were consistent with his description of events at Iguana Joe’s. Dr Hoskins’ opinion was limited by the poor quality of the photographs of Mr Burke’s injuries. However, Dr Hoskins doubted that the redness seen on Mr Burke’s torso was caused by repeated punching. Obviously, this evidence was not tested before me, nor particularly relevant to whether Mr Burke is TPD by reason of PTSD.

2006 arrest and interview

1. [123]

   On 15 March 2006, Mr Burke was arrested again and interviewed by Detective Senior Sergeant Timbrell at The Entrance Police Station together with Detective Senior Constable Glen Sherwood as his support person. MetLife had the transcript when it made its decision. Detective Senior Sergeant Timbrell said he was making enquiries in relation to suspected evidence of tampering and suspected perversion of justice. Mr Burke exercised his right to silence. Mr Burke was then interviewed, not as part of a criminal investigation but as part of a police complaint investigation and was directed to answer questions under clause 9(1) of the Police Regulation 2000 (NSW). The contents of that interview are not in evidence.

2. [124]

   I have no doubt that Mr Burke found the process of being interviewed in respect of these matters to be extremely stressful. I expect such interviews are very stressful for any person so interviewed, whether they are a serving police officer or not, but Mr Burke would well have appreciated the potential additional disciplinary and career ramifications of these events.

Another MMPI test

1. [125]

   In the midst of this, Mr Burke again applied to join the Tactical Operations Unit. He again completed a Medical Declaration Form, as he had done in 2003 and 2005, advising that he had never received treatment for anxiety, depression, stress or other psychological episodes nor suffered from PTSD. Beyond the whiplash earlier referred to, he did not refer to any other work injuries and did not describe himself as unwell at present. He said that he did not consume alcohol. Mr Burke was asked to explain why, in these proceedings, he said he was drinking alcohol heavily at this time, and Mr Burke said that he had not had a drink at the time he completed the form.

2. [126]

   On 30 March 2006, Mr Burke completed a consent form for psychometric and psychological tests. He was asked to list any serious illnesses or injuries he had had, being physical or psychological injuries or illnesses that had required hospitalisation, rehabilitation or medication. None were listed. He was asked whether he wished to speak with a psychologist about any issues and said that he did not. The results of the psychological screening test, as previously, included MMPI-2 which results were “valid, no major concerns reported”. Two Validity Scales for under-reporting were above average but less than 60 and, according to the Manual, should be interpreted as: “There is no evidence of under-reporting. The protocol is interpretable”. The fact that that these scores were elevated, however, suggests to me that Mr Burke was agitated at the time by reason of his second arrest and interview in respect of the events at Iguana Joe’s and may have been endeavouring to suppress his agitation for the purposes of completing the test, albeit not to such an extent as to render the results of the test invalid.

3. [127]

   Later that month, Mr Burke participated in the selection course for the Tactical Operations Unit, which he described as extremely intense, both physically and mentally. He was not selected for the Tactical Operations Unit, apparently because he did not fully understand the mechanics of the firearms involved. He later attributed this to the stress of the events in 2005 and 2006, and I accept that Mr Burke was likely very stressed at this time. Mr Burke was cross-examined as to why he would repeatedly apply to join the Tactical Operations Unit at a time when he said he was suffering from post-traumatic stress. He said:

Further developments and suspension

1. [128]

   MetLife did not have the records referred to in the next few paragraphs when it made its decision. On 4 May 2006, Mr Fordham withdrew his allegations regarding the events at Iguana Joe’s, saying he did not want to pursue the matter to court. Nonetheless, Mr Fordham expressed his satisfaction with the investigation undertaken by Detective Senior Sergeant Timbrell and was satisfied for the matter to be dealt with internally by NSW Police or in any manner that did not require any further involvement from him. On 6 May 2006, NSW Police issued a Directive Memorandum to Mr Burke requiring him to submit a report in relation to performance issues. Given the timing of the memorandum, I infer that it related to Mr Burke’s interaction with Mr Fordham.

2. [129]

   The next day, on 7 May 2006, Mr Burke was stopped by Newcastle Highway Patrol for failing to stop at a red light, driving with an expired driver’s licence and driving an unregistered and uninsured vehicle. Mr Burke submitted to a breath test which recorded a positive reading. He was arrested and, at Newcastle Police Station, recorded a positive reading of 0.105 grams of alcohol per 100 ml of blood. Mr Burke was charged. The timing of these events could not have been more unfortunate. It seems likely that Mr Burke’s cavalier behaviour arose from the distress he was suffering by reason of receiving the Directive Memorandum.

3. [130]

   But it did not end there. On 2 and 8 September 2006, Mr Burke was observed by off-duty officers driving his car whilst unlicensed. He was charged again. On 25 September 2006, Mr Burke was suspended on full pay. On 16 October 2006, Mr Burke was sentenced by Newcastle Court and disqualified from driving for six months due to a mid-range concentration of alcohol.

4. [131]

   On 26 March 2007, the Internal Review Panel of the Employee Management Branch of NSW Police recommended a reduction in Mr Burke’s rank to Constable Level 5. At about the same time, the Commissioner’s Advisory Panel decided to support a recommendation under section 181D of the Police Act 1990 (NSW) that Mr Burke be dismissed. The submission to support this recommendation began to be prepared. On 16 May 2007, Superintendent McKechnie, Commander of Tuggerah Local Area Command, issued a notice to Mr Burke under subsection 173(5) of the Police Act that he was considering making a reviewable order reducing his rank to Constable Level 5 and transferring him another Command.

Second PTSD Claim

1. [132]

   On 5 June 2007, Mr Burke’s GP, Dr Quang Le, diagnosed Mr Burke with anxiety arising from his employment and declared him unfit for duty for one month. The date of the injury was specified as May 2005, presumably a reference to Mr Burke being interviewed in relation to the incident at Iguana Joe’s.

2. [133]

   On 7 June 2007, the Police Association of NSW responded to the subsection 173(5) notice of behalf of Mr Burke and provided character references from four other police officers in support of the response. The letter explained that at the time Mr Burke was under extreme personal stress, was suffering depression and was consuming excessive amounts of alcohol as a result of the investigation into his conduct “after he was attacked by approximately 12 people associated with the outlaw motorcycle gang known as the “Rebels” on 25 April 2005”. The Police Association sought a lesser penalty, noting the stress and anxiety he was suffering at the time of the NSW Police investigation.

3. [134]

   On 8 June 2007, Mr Burke completed a workers’ compensation form arising out of psychological injury by reason of the arrest on 16 May 2005. Mr Burke certified that he did not suffer psychological injury before that date, presumably having forgotten the PTSD diagnosed in 1997.

First psychological assessment of PTSD claim

1. [135]

   On 26 June 2007, Mr Burke was assessed by Peter Briggs, clinical psychologist, at the request of the workers’ compensation insurer, Allianz. Mr Burke told Mr Briggs about the events of 25 April 2005 and his subsequent arrest in May 2005 and March 2006 by NSW Police. Mr Burke said that he was the victim of the assault at the bar, believed he had not received a fair hearing in relation to what had happened and considered that the investigating officer was biased against him. He felt unfairly treated by the investigation processes and believed he was innocent of wrongdoing other than more recent traffic related offences. Mr Burke also found it humiliating and inappropriate to have been arrested and placed in custody at his own station in front of his colleagues. Mr Burke said that he had not previously made any workers’ compensation claim for psychological injury, I assume because he did not then recall the claim made 10 years earlier. Mr Burke said that, whilst suspended, he spent some time helping his brother who worked for himself in the building trade, exercised one or twice a day to try and stay fit and cared for his elderly father. Mr Burke said that he had not previously seen any mental health professionals nor had any medication for mood problems in the past.

2. [136]

   Mr Briggs spoke to Mr Burke’s supervising officer, Superintendent David Swilks, who did not support the workers’ compensation claim. Superintendent Swilks gave the alternate perspective, saying that there were serious concerns about Mr Burke being an active participant in the assault at Iguana Joe’s and that the police had reservations about the accuracy of some of the information he had provided. Superintendent Swilks said that he supported the section 181D recommendation then being prepared.

3. [137]

   Mr Briggs concluded that Mr Burke fulfilled the criteria for a diagnosis of Adjustment Disorder with Depressed Mood, both at the date of injury in 2005 and at the date of assessment. He was fit for non-operational duties, but this was academic given his suspension. Mr Briggs concluded that Mr Burke’s psychological injury wholly stemmed from the industrial factor of discipline and recommended that he receive 8 psychological consultations from Roger Peters, an independent psychologist to whom he had been referred, with treatment being CBT-orientated. Mr Briggs considered that Mr Burke was not likely to significantly recover until there was a decision about his future within NSW Police, and recommended that the final decision under section 181D be communicated to Mr Burke as soon as possible. Mr Briggs also noted that Mr Burke appeared to have developed a major alcohol problem, which appeared to be a consequence of the arrest and disciplinary action and reflected his poor coping skills rather than being caused by the disorder. Mr Briggs’ assessment of Mr Burke seems to me to have been correct at the time it was made.

Mr Burke begins treatment

1. [138]

   On 12 July 2007, Mr Burke saw Roger Peters for the first time. On 9 August 2007, Allianz denied liability for the workers’ compensation claim on the basis that the injury arose from the employer’s reasonable action in regards to discipline. On 7 September 2007, NSW Police made an order reducing Mr Burke’s rank and transferring him to Wyong Police Station. On 20 September 2007, Mr Burke filed an application with the Industrial Relations Commission of NSW challenging the order.

2. [139]

   On 14 November 2007, NSW Police served a warning notice on Mr Burke, finalising the section 181D action. Arrangements were to be made to bring him back to duty, signalling the end of Mr Burke’s suspension on 27 November 2007. Mr Burke took recreational leave from 4 December 2007 until 26 January 2008. On 5 December 2007, Mr Burke saw Mr Peters, whose file note records (emphasis added):

3. [140]

   On 6 February 2008, Mr Burke was rostered for duty for the first time since his suspension in September 2006. Mr Burke saw Mr Peters again in February, March and April 2008.

More problems and second suspension

1. [141]

   Unfortunately, by September 2008, Mr Burke had encountered further difficulties. A former girlfriend alleged that on 4 September 2008 Mr Burke called and texted her several times before arriving at her home, breaking the lounge room window and leaving. Again, it is not necessary for me to find, and I make no finding, as to whether Mr Burke did this or not. Mr Burke accepted that he sent a text message to the former girlfriend the next day which evidenced an apprehension by Mr Burke that his former girlfriend may be contemplating reporting him to the police for coming to her home to talk to her.

2. [142]

   On 5 September 2008, a provisional apprehended violence order was made in respect of Mr Burke at the request of the former girlfriend. He was charged with destruction or damage of property under section 195(1)(a) of the Crimes Act 1900 (NSW). Mr Burke also saw Dr Le the same day, for the first time since April that year.

3. [143]

   On 11 September 2008, NSW Police prepared a Fact Sheet in respect of the charge of destroying or damaging property. The next day, on 12 September 2008, Mr Burke accepted that his lawyers instigated the procurement of a letter from his former girlfriend’s sister, who owned the house, to drop the charges, and that he had a hand in it. Mr Burke denied having any involvement in damaging the window, or paying for its repair.

4. [144]

   It must have been clear to Mr Burke at the time that, by reason of earlier disciplinary proceedings against him, his future with NSW Police was now seriously in jeopardy. On 24 September 2008, Mr Burke was suspended again. Following his suspension, Mr Burke could rightly expect that his career with NSW Police was over.

A new career?

1. [145]

   In April 2009, Mr Burke completed Certificate III in Fitness with the Australian Institute of Fitness. On 6 May 2009, Mr Burke completed Certificate IV in Fitness. Mr Burke applied for approval from NSW Police to undertake secondary employment: he proposed to undertake personal fitness training of clients individually and in groups and to be a gym instructor. Mr Burke expected to work three days a week, depending upon clientele, and six hours a week. He proposed to work under the company name “Actifit”. Mr Burke’s application was approved on 22 May 2009.

2. [146]

   In June 2009, Mr Burke registered the business name “Actifit Personal Fitness Training” and obtained an ABN number. It would appear that, quite sensibly, Mr Burke was preparing for life after NSW Police.

3. [147]

   On 22 June 2009, Roger Peters sent a letter to a firm of solicitors referring Mr Burke for legal assistance. In a long letter, Mr Peters said that he had developed a strong belief that Mr Burke had been singled out for treatment,

4. [148]

   In July 2009, Mr Burke returned to see Mr Peters, who suggested that Mr Burke put his traumatic experiences in narrative form and make a workers’ compensation claim: even if the claim was knocked back, there would be a record that he was suffering from work-related stress. In a troubling file note, Mr Peters recorded his personal views on the disciplinary actions taken by NSW Police against Mr Burke, which appears to have been based on inadequate information. Mr Peters expressed amateur legal opinions on Mr Burke’s potential causes of action and whether there was some form of corruption which explained the police’s actions in this case. Mr Peters’ comments were then echoed in Mr Burke’s subsequent histories given by Mr Burke to doctors.

5. [149]

   By contrast, in October 2009, Mr Peters’ note of a meeting with Mr Burke reported that Mr Burke was doing fine and was now in remission and preparing to file a workers’ compensation claim (but expecting that it would be rejected): “He has certainly got an accumulation of stressors brought about by the disgraceful nature of how he has been treated”. On 16 October 2009, Mr Burke was informed that his suspension would be lifted. He took sick leave.

Mr Burke sees a psychiatrist

1. [150]

   On 19 October 2009, Mr Burke consulted Dr Wade on Mr Peters’ recommendation. Mr Burke described his unlawful arrests. Mr Burke said that Detective Senior Sergeant Timbrell was the mate of the father of one of the offenders. This suggestion was voiced by Mr Burke to Dr Wade for the first time, now three to four years after his arrests. Beyond Mr Burke’s assertion on this subject, repeated to later doctors and in these proceedings, there is nothing to support this suggestion. Mr Burke told Dr Wade that Detective Senior Sergeant Timbrell claimed that he had video footage of Mr Burke doing the attacking but Mr Burke said he later tried to contact Detective Senior Sergeant Timbrell, who told him to “get stuffed”, when Mr Burke indicated that he had video evidence that would clear him. Whilst Detective Senior Sergeant Timbrell had, indeed, obtained video evidence, it is unclear why Mr Burke did not provide any video evidence which cleared him to NSW Police at any time. The history given by Mr Burke to Dr Wade on this occasion largely focussed upon the events of 2005 and 2006, although brief reference was made to other traumatic events experienced as a police officer, including the Hornsby siege.

2. [151]

   This consultation with Dr Wade was the first time in which Mr Burke articulately described symptoms of PTSD. Thereafter, Mr Burke continued to describe such symptoms to each of the psychologists and psychiatrists whom he saw and whose reports are now in evidence. I will not repeat Mr Burke’s description of his symptoms hereafter in this judgment for the sake of keeping the length of this judgment within tolerable bounds, but I note the consistency and comprehensiveness of Mr Burke’s self-reporting of symptoms hereafter. Dr Wade considered that Mr Burke satisfied the criteria for chronic PTSD and recommended that he begin to take Luvox, an anti-depressant with calming effects.

3. [152]

   On 20 October 2009, the Commissioner of Police ruled that Mr Burke would return to work with eight years of his increments being relinquished. Mr Burke returned to work on 21 October 2009 on full duties. The same day, Mr Burke saw his GP, Dr Le. The doctor’s consultation notes record that, “The Commissioner allows patient to go back to work, but the psychiatrist said no. Want workers compensation for few weeks.” Dr Le was not prepared to assist Mr Burke, preferring to await a letter from the psychiatrist. Mr Burke was not happy and is recorded as “going to see a different GP”.

4. [153]

   In any event, Dr Wade’s report was issued that day. Dr Wade opined that Mr Burke had no trust of the police and could not return in any capacity and needed to be medically retired so that he can “grieve the damage done” and “slowly look at new directions in life”, continuing:

5. [154]

   Dr Wade’s assessment was based on one interview with Mr Burke. Dr Wade did not perform any clinical tests but simply relied upon Mr Burke’s history of what had happened to him in the past and how he felt about it. The diagnosis was, in my view, without clinical rigour.

Second workers’ compensation claim for PTSD

1. [155]

   Mr Burke did go and see a different GP, Dr Philip Sutherland, who, on 26 October 2009, signed a Work Cover certificate diagnosing Mr Burke with PTSD arising from his employment. Mr Burke was certified as unfit to work for one month. Thereafter, Dr Sutherland signed Work Cover certificates for Mr Burke from time to time. When later asked to provide a report to MetLife, Dr Sutherland confirmed that he had seen Mr Burke every four to six weeks since their first consultation in October 2009: “Patient has been asymptomatic on presentation”. That is, Mr Burke showed no symptoms of PTSD. Dr Sutherland noted that Mr Burke was being treated by Dr Wade, and Dr Sutherland had no details of the treatment and was not able to comment on Mr Burke’s functioning or prognosis. It would appear that Mr Burke saw Dr Sutherland for the purpose of signing the Work Cover certificates, and Dr Sutherland did not himself diagnose Mr Burke with PTSD in any comprehensive manner. It is noteworthy that when Dr Sutherland saw Mr Burke, with reasonable frequency, Mr Burke showed no symptoms of PTSD.

2. [156]

   On receipt of the Work Cover certificate, NSW Police rescinded its approval of Mr Burke’s secondary employment as a personal trainer, it being a condition of approval that it did not cover absence from duty on sick report.

3. [157]

   On 30 October 2009, Mr Peters telephoned and then wrote to the workers’ compensation insurer, Allianz, confirming that he had diagnosed Mr Burke with PTSD and had encouraged him to write a narrative of his experiences. Mr Peters forwarded his earlier letter to solicitors, which he had written requesting advice for Mr Burke. It would appear that Mr Peters had taken it upon himself to assist Mr Burke in availing himself of legal remedies. On 16 November 2009, Mr Peters wrote to Allianz noting that it seemed that Mr Burke “has been poorly handled, even spitefully dealt with”. Mr Peters noted that difficulties were posed by adhering to the idea that “work is therapy” by returning Mr Burke to work because Mr Burke was suspended.

4. [158]

   Attached to Mr Peters’ report was the narrative prepared by Mr Burke at Mr Peters’ suggestion. The narrative, entitled “Facts of Events Leading to Trauma” comprised seven typed pages setting out in detail Mr Burke’s experiences when arrested in May 2005 and March 2006 and the associated disciplinary action taken against him. Mr Burke said that, between the two arrests, he was not kept informed as to what was happening other than one telephone call from Detective Senior Sergeant Timbrell who he described as abrupt and aggressive. I note that Mr Burke complained from time to time thereafter that he had called Detective Senior Sergeant Timbrell on various occasions to discuss the police investigation and to find out what was happening, and had been told by Detective Senior Sergeant Timbrell that it was not appropriate to discuss the matter. Detective Senior Sergeant Timbrell’s comments were, it seems to me, appropriate, in circumstances with NSW Police was investigating one of its own officers in respect of potential criminal charges.

5. [159]

   Mr Burke regarded both arrests as unlawful, which I gather related to the length of time for which he was held under arrest. Mr Burke proceeded to outline his history within NSW Police since his arrest, which was incomplete and inaccurate, for example, suggesting that he was “exonerated” of the section 181D notice. Mr Burke described his second suspension as based upon false allegations by his ex-girlfriend, saying “the matter was proven wrong…”. The flavour of Mr Burke’s narrative makes sense when one considers that he prepared it at the request of his psychologist as a therapeutic tool. This explains, I think, the emotion and drama within the narrative and its imprecise nature. It reflected Mr Burke’s emotional and psychological condition at the time he prepared it.

6. [160]

   As part of the second workers’ compensation claim, Mr Burke saw Peter Briggs again for assessment on behalf of Allianz. Mr Burke outlined the same matters covered by the narrative, and said that he planned to pursue a career as a personal trainer when he left the police. Mr Briggs prepared a psychological assessment on 16 November 2009, concluding:

7. [161]

   Mr Briggs diagnosed Adjustment Disorder, which he explained referred to people who had excessive impairment as a consequence of stressors, which in this case were the various disciplinary proceedings he had been through, and a continuation of the condition assessed at the time of Mr Burke’s application for workers’ compensation in 2007.

8. [162]

   According to Mr Briggs, the main cause of Mr Burke’s adjustment disorder was the disciplinary proceedings being brought against him, albeit he accepted that Mr Burke’s two arrests were significant stressors for Mr Burke. Mr Briggs concluded:

9. [163]

   Mr Briggs considered that the best thing for Mr Burke was to sever his employment with NSW Police, which would likely significantly ease his psychological symptoms. Psychological treatment and medication were unlikely to do more than support him until that happened.

10. [164]

    After Mr Briggs made his assessment, he spoke to various police officers about Mr Burke and prepared statements. Those statements are relevant only to the extent that MetLife had this material available when making its decision, and are not admitted as evidence of the truth of the contents of the statements. The police officers refuted the complaints made by Mr Burke and noted that the only feedback obtained from the Ombudsman in relation to NSW Police’s investigation of Mr Burke was that more lines of enquiry could have been undertaken. Although Mr Burke’s former girlfriend did not proceed with her complaint in respect of the broken window, Superintendent Swilks had reviewed the court file and formed the opinion that there was a prima facie case. Superintendent Swilks noted that Mr Burke had been seen training people since his approval for secondary employment had been rescinded, but had decided not to investigate the issue of whether or not he was conducting secondary employment.

11. [165]

    On 25 November 2009, Mr Burke saw Mr Peters again. I find Mr Peters’ file note of this session troubling as it contains, again, Mr Peters’ legal views and obviously well-developed views about the nature of NSW Police as a “perverse organisation” that “undoubtedly … targeted” Mr Burke. Repeating such a view to Mr Burke may have been supportive but perhaps not ultimately helpful.

12. [166]

    On 9 December 2009, Mr Briggs completed his report for Allianz, diagnosing Mr Burke with Adjustment Disorder Mixed Anxiety Depressed Mood, which rendered him unfit for work for the police, although fit for alternate work as a personal trainer. Active treatment from mental health professionals was not required as his problems appeared to be situationally driven and could be expected to be resolved on his exit from NSW Police.

Tax returns

1. [167]

   In about December 2009, Mr Burke lodged his tax return for the year ended 30 June 2009, prepared by Joel Bentley, accountant. In addition to Mr Burke’s income as a police officer, Mr Burke declared income and expenses of his business, “Actifit Personal Fitness Training”. As Mr Burke did not obtain his Certificate IV in Fitness until 6 May 2009 and approval from NSW Police to undertake secondary employment until 22 May 2009, he likely only offered his services for 5 or 6 weeks only of that financial year. Mr Burke declared income of $3,452. Mr Burke claimed expenses of $7,910, with a net loss of $4,941 for the financial year. The expenses included mobile phone, internet, telephone and facsimile, filing fees, cleaning, protective gear, training, professional association fees, gym access, trade magazines, travel, computing supplies, office supplies, sun care and depreciation expenses. According to the tax return, Mr Burke had started his business as a personal trainer, although it was not then profitable.

Allianz investigates workers’ compensation claim

1. [168]

   On 18 December 2009, Mr Burke was interviewed by an Allianz investigator and signed a statement which roughly accorded with the narrative he had prepared for Mr Peters. Mr Burke advised,

2. [169]

   Mr Burke also advised the investigator that the last time he had worked as a personal trainer was before October 2009 as:

3. [170]

   Superintendent Swilks was also interviewed by the Allianz investigator. He advised that his review of the investigation of Mr Burke over the 2005 assault identified a number of investigative deficiencies by Detective Senior Sergeant Timbrell as it was considered that lines of questioning of Mr Burke did not canvass all of the issues in sufficient detail, although:

PTSD in remission

1. [171]

   In February 2010, Mr Peters saw Mr Burke again and reported that Mr Burke was doing well with Dr Wade.

2. [172]

   On 22 February 2010, Mr Peters submitted a psychological/counselling management plan to Allianz seeking approval for further counselling sessions to address PTSD arising from his arrests. Mr Peters advised that, by the counselling undertaken thus far, PTSD symptoms had been stabilised and were in remission.

3. [173]

   On 23 February 2010, Allianz denied liability. In March 2010, Mr Burke saw Mr Peters and his note records that he encouraged Mr Burke to proceed with his workers’ compensation claim so that he could get on with his life.

4. [174]

   On 17 May 2010, Dr Wade reviewed Mr Burke. His clinical notes, as later incorporated into a medical report, record that Mr Burke was working part time with his brother doing a bit of waterproofing, a few days a week, which was “okay”. Mr Burke had made a trip to Queensland where he caught up with some mates and he said he had a good time. In addition to discussing his arrests and disciplinary history “he also related more and more multiple near misses to do with nearly being shot, attempts to be run over and all of the fatalities that he has attended”, the memories which had returned to plague him and cause sleep difficulties. Dr Wade recorded:

5. [175]

   In May 2010, Mr Burke’s sick leave came to an end but he continued on leave in various forms until 30 November 2010. A report of Dr Smith noted that, on 18 June 2010, Mr Burke was issued with a Commissioner’s warning notice, but I do not know to what it related.

6. [176]

   On 23 June 2010, Mr Peters provided a medical report to Mr Burke’s solicitors noting that although Dr Wade had diagnosed Mr Burke with PTSD,

District Court Proceedings

1. [177]

   On 5 July 2010, Mr Burke filed a Statement of Claim in the District Court of New South Wales against the State of New South Wales for damages caused by Mr Burke’s arrests in 2005 and 2006. The injuries suffered were particularised as PTSD, major depression and anxiety disorder. Mr Burke claimed aggravated damages in respect of the allegedly wrongful arrest and false imprisonment. MetLife did not have these pleadings at the time it made its decision.

2. [178]

   In support of these proceedings, Mr Burke relied upon a report of Dr Wayne Mason, psychiatrist, obtained on 5 July 2010, who diagnosed Mr Burke with PTSD with a very poor prognosis. Importantly, Dr Mason was retained by NSW Police. According to the history taken by Dr Mason in relation to the Iguana Joe’s incident, Mr Burke and Mr Gurnhill were confronted by a group of about 12 men who were associated with the Rebel bikie gang and described the sequence of events which included an attack inside the club, being punched and kicked by the men outside the club and then being attacked and punched by the men at his car, being pushed to the ground and then kicked while he was down. Mr Burke also described the various traumatic incidents he had attended as a police officer since 1990 including the Hornsby siege “where the offender threatened Mr Burke at a distance of five meters with a 30/30 Winchester rifle. Mr Burke felt his life was over, but was able to reach the safety of cover.” As a consequence of his behaviour following the siege, his marriage broke up.

3. [179]

   Dr Mason considered Mr Burke to be severely impaired with regard to employability.

4. [180]

   Dr Mason concluded that Mr Burke had developed PTSD and major depressive order and alcohol abuse in response to events in his working life in NSW Police Force including the accumulation of multiple traumatic events accounted throughout his police career “and being charged with two offences which he did not commit and on which he was exonerated” together with “appalling racial vilification.” Dr Mason considered that Mr Burke did not have the capacity to work as an operational police officer nor non-operational police officer as returning to the police force would leave him vulnerable to retraumatisation including by racial vilification. Dr Mason recommended he be medically discharged. Dr Mason considered that it was possible for Mr Burke to be successful as a personal trainer, although he had his doubts given his excessive alcohol use. Dr Mason assessed Whole Person Impairment of 17%.

5. [181]

   On 16 July 2010, Mr Burke saw Mr Peters and was informed that Dr Mason had recommended medical discharge. Mr Peters regarded this as “the tipping point for his workers comp” and said he would defer sending his report to Mr Burke’s solicitors until he had seen Dr Mason’s report “which will in fact make my report even more powerful. Likewise Dr Wade should get a copy of my report so we can all be singing from the same song sheet.” They further discussed Mr Burke’s legal proceedings and workers’ compensation claim and “how he can optimise his entitlements in this regard”.

6. [182]

   On 21 July 2010, Dr Wade provided a report to Mr Burke’s solicitor which was relied on in the District Court proceedings, recording his treatment of Mr Burke and concluding that Mr Burke had been suffering from chronic PTSD for about 10 years with residual symptoms of major depressive order related to his police career. The unlawful arrest very much exacerbated the chronic PTSD, and Dr Wade referred to:

7. [183]

   Dr Wade expressed grave concerns for Mr Burke’s future, and considered that Mr Burke would suffer PTSD for the rest of his life and be very prone to exacerbations. Dr Wade did not consider that Mr Burke could ever work again as a police officer, and that his injuries would also affect his employability on the open job market as he was “totally allergic to being given orders”.

8. [184]

   Mr Burke had no transferrable skills from his police career and Dr Wade thought it would be wise for Mr Burke to get out of New South Wales altogether. Whilst Mr Burke’s history of traumatic events within ordinary policing were considered by Dr Wade to be enough to account for his PTSD, his PTSD had been “worsened by the racism that he has experienced in his police career and… how he was scapegoated and sacrificed in what would appear to be a very corrupt manner…”. Dr Wade concluded that Mr Burke was totally and permanently incapacitated for his employment as a police officer and “also for any work on the open job market”.

9. [185]

   Dr Wade’s report is put in such strong and exaggerated terms that I have difficulty accepting his clinical diagnosis, in part because it is heavily dependent on Dr Wade’s acceptance of Mr Burke’s history, which was materially accurate, but also because Dr Wade seems to have been prone to over-statement throughout his report. In contrast to Dr Wade’s bleak assessment, on 13 August 2010, Mr Peters saw Mr Burke and noted in “He’s doing really well”. Apparently, Mr Burke had won a case in the Industrial Relations Court, “other than that he is fighting fit…”

10. [186]

    On 24 August 2010, Mr Burke lodged an application to resolve a dispute with a Workers Compensation Commission, challenging Allianz’s refusal of his workers’ compensation claim. Mr Burke relied upon the reports of Dr Mason and Mr Peters.

Medical discharge

1. [187]

   In parallel, NSW Police progressed an application for the medical discharge of Mr Burke. On 13 September 2010, a psychologist, Keiren Hynes, employed by MetLife as a medical claims assessor, accepted a submission by NSW Police that Mr Burke satisfied the definition of Partial Permanent Disability (PPD) in the Police Officers Death Disability Award 2005. Ms Hynes did not meet with Mr Burke but reviewed the various diagnoses and reports of Mr Peters, Dr Sutherland, Dr Wade, Dr Mason and Mr Briggs. Ms Hynes noted there was a lack of consensus among professionals regarding Mr Burke’s diagnosis but concluded:

2. [188]

   On 17 September 2010, NSW Police informed Mr Burke that he had been recommended for medical discharge with his last day of service to be 30 September 2010.

Financial planner

1. [189]

   On 1 October 2010, the day after he was discharged from NSW Police, Mr Burke registered Actifit Personal Fitness Training for GST. Mr Burke also sought financial advice from Hunter Financial Planning in relation to a lump sum benefit of some $150,000 which Mr Burke expected to receive from NSW Police on medical discharge. Amongst the details given by Mr Burke of his financial goals and aspirations, the financial planners’ note of the meeting records:

2. [190]

   After the meeting, the financial planner noted topics to be prepared for the next meeting with Mr Burke, including advice as to “set up and structure of new business”. A combination of three documents recording this meeting indicates that Mr Burke was then contemplating a new business; whether it was in personal training or waterproofing is unclear.

3. [191]

   At about this time, Mr Burke lodged his tax return for the year ended 30 June 2010 prepared by Mr Bentley. In addition to his income as a police officer, Mr Burke declared income of $514 and claimed expenses of $9,947 arising from his business of Actifit Personal Fitness Training. It would appear from the tax return that Mr Burke had continued to offer his services as a fitness trainer during the financial year, albeit at a vastly reduced level. It would appear from Mr Peters’ file notes referred to earlier that the reduction was referrable to NSW Police rescinding its approval for secondary employment in October 2009 rather than Mr Burke’s incapacity to provide the services.

4. [192]

   On 2 November 2010, Hunter Financial provided a statement of advice to Mr Burke and advised that they had been in contact with First State Super. Hunter Financial recommended that Mr Burke claim on the Basic Policy and Blue Ribbon Policy on the basis of TPD. Mr Burke took this advice and, on 4 November 2010, completed a claim form for the TPD benefit under the MetLife policies.

5. [193]

   On 18 November 2010, Mr Peters provided a report to Mr Burke’s solicitor as to how the unlawful arrests contributed to Mr Burke’s condition. Mr Peters opined that he did not think an unlawful arrest met the criteria for PTSD but “if the four specialists that you have reports on Michael from are correct, then he suffers from a PTSD that has been accumulative in nature and developed over his career as a police officer.” Whatever Mr Peters’ eccentricities, he appears to have been more alive to the diagnostic criteria for PTSD than his psychiatric colleagues.

6. [194]

   Further, on 25 November 2010, Mr Peters completed a confidential medical report for First State Super. He described the PTSD as “in remission” and concluded that although Mr Burke would never be able to be employed in his normal occupation due to this incapacity, Mr Burke was still able to be employed in some form of paid occupation. Mr Peters advised that “Mr Burke will need a vocational appraisal to ascertain suitable work. There are serious limitations in regard to his capacity, especially work involving conflict.”

7. [195]

   On 25 November 2010, Mr Burke and NSW Police participated in a conciliation conference before the Workers Compensation Commission and came to an agreed resolution of the issues in dispute. Mr Burke’s application was discontinued. NSW Police agreed to make voluntary payments in respect of the injury claimed from 18 May 2010 to 23 November 2010, and thereafter at $500 per week. Although Mr Burke relied upon this determination as an acceptance by Allianz of his PTSD, the agreement was voluntary and records no such acceptance. Nor does Allianz’s agreement to make workers’ compensation payments under a detailed statutory scheme bind MetLife to pay a benefit for TPD under the terms of its contract of insurance with First State Superannuation. Having resolved the wages element of his workers’ compensation claim, Mr Burke sought payments for Whole Person Impairment of $23,000 and compensation for $28,000 under the Workers Compensation Act.

Insurance claim

1. [196]

   MetLife received Mr Burke’s claim on 5 January 2011. MetLife asked that Mr Burke complete a daily Activity Statement and Vocational Questionnaire, provide tax returns from 2007 to 2010, and that NSW Police provide leave records. The daily Activity Statements completed by Mr Burke recorded, essentially, that he undertook fitness training each day for an hour.

2. [197]

   On 25 January 2011, Dr Wade provided a further report to Mr Burke’s solicitor in the further workers’ compensation claim, essentially replicating his earlier reports and concluding that Mr Burke “remains an exceedingly damaged person, in the sense of the ongoing symptoms of his chronic PTSD” and was totally and permanently incapacitated, noting,

3. [198]

   Dr Wade considered that the Hornsby siege had caused at least acute traumatic stress disorder symptoms. Dr Wade considered Mr Burke’s Whole Person Impairment to be 22%. Dr Wade considered that PTSD incurred before 2001 was relatively modest, probably about 10%, which would reduce the Whole Person Impairment to 20%. In reaching this conclusion, Dr Wade had regard to the fact that Mr Burke missed bathing and changing his clothes due to indifference, rarely went out to social events and only when prompted by family members or a friend and would not go alone. He limited his driving to local areas that were very familiar or areas beyond those in which he had worked as a police officer or otherwise avoided driving due to anxiety. He had difficulties with social functioning. He had difficulties with concentration and persistence being unable to read more than a magazine article in some area of interest, follow complex instructions without becoming easily frustrated, volatile and very angry. He was incapable of preparing a meal with complex steps without becoming frustrated, virtually reaching a point where he throws a tantrum. He could not work at all. Dr Wade considered the permanent impairment referrable to events before 2001 as causing traumatic symptoms,

4. [199]

   Dr Wade noted that Mr Burke’s story represented “obviously allegations of various significant corruption” which reach a crescendo in 2008 where Mr Burke was very significantly affected:

5. [200]

   On 8 February 2011, Mr Burke completed the Vocational Questionnaire, as requested by MetLife. He stated, consistently with what he had told Hunter Financial Planning, that the jobs which he would be interested in doing in the future were in the fitness industry or trades industry (waterproofer).

6. [201]

   Mr Burke also completed an Activities Statement which revealed a mixture of personal and social activities. Over the fortnight examined, Mr Burke undertook fitness training, generally once or twice every day. He cared for his aged father at his home, did grocery shopping, and, over a fortnight, had meals or coffee with friends outside the home on eight occasions. He visited a Toyota sale, went dirt bike riding, saw a movie, and attended the A-League final. Mr Burke appears to have travelled reasonably widely in his local area to undertake these activities including to a shopping centre and venues in Terrigal and Gosford. Without knowing more, the Activities Statement tended to suggest that Mr Burke had a reasonably active and social life unlike the grim picture painted by Dr Wade.

Dr Diamond

1. [202]

   On 14 February 2011, Mr Burke’s solicitors requested a report from Dr Diamond for use in the District Court proceedings, noting that Mr Burke claimed he suffered an injury of PTSD, major depression and anxiety disorder as a result of the unlawful arrest. Dr Diamond examined Mr Burke on 25 February 2011 which was the last day on which Mr Burke kept his fortnight of Activities Statement.

2. [203]

   Dr Diamond’s report, dated 7 March 2011, contains a more detailed description of the Hornsby siege.

3. [204]

   In respect of the Iguana Joe’s incident, Mr Burke described Mr Fordham as a solid 6 foot 2 gym junkie and steroid user. Those who attacked him were described as “twelve large men who were associates of the Rebels outlaw motorcycle gang”. He described the allegations made by his ex-girlfriend as “smashing up her place” and that the allegations were “thrown out at court”. Mr Burke said he was concerned as to his employability. Although he was certified as a personal trainer, Mr Burke felt he could not do this as a job because he was unreliable and too irritable and short-tempered. He also expressed doubts about his ability to work in waterproofing. This is somewhat at odds with the Vocational Questionnaire prepared two weeks earlier.

4. [205]

   Dr Diamond considered that Mr Burke’s presentation during the interview was consistent with chronic PTSD. Dr Diamond considered that Mr Burke had a poor prognosis as the condition was entrenched. Dr Diamond considered that Mr Burke had received appropriate treatment and had progressed significantly but was susceptible to triggering events and the development of acute exacerbations of illness. Dr Diamond considered that Mr Burke was not able to carry out work as a gym instructor or water proofer in the open labour market because of his irritability, unreliability, difficulty with concentration and perseverance as well as being relatively socially avoidant.

5. [206]

   On 15 March 2011, Dr Wade wrote a further report to MetLife consistently with the reports that he had written to date. Dr Wade considered Mr Burke’s current and long term work capacity as nil.

6. [207]

   MetLife submitted that Dr Wade’s perception of Mr Burke did not sit well with Mr Burke’s lifestyle. On the same day as Dr Wade issued this report, Mr Burke saw Mr Peters whose note was “he’s doing okay. He’s going for a common law settlement so he is just lying low.” Looking at Mr Burke from “across the street”, as MetLife was effectively doing via Activity Statements, Mr Burke appeared to be having a relatively carefree, busy and social life.

7. [208]

   By late March 2011, MetLife had obtained reports from Mr Burke’s treating doctors and basic information concerning Mr Burke’s employment from NSW Police. Some information had also been obtained from Mr Burke. MetLife then sought records from Allianz, the workers’ compensation insurer, in respect of Mr Burke’s claim for benefits. Mr Burke’s claim for workers’ compensation had yet to be resolved and, on 27 April 2011, Mr Burke filed an Application to Resolve a Dispute in respect of Allianz’s failure to decide his claim. On 18 May 2011, Allianz denied liability.

Dr Rose

1. [209]

   On 22 July 2011, Mr Burke was assessed by Dr Norman Rose, psychiatrist, who prepared a medical assessment certificate for the Workers Compensation Commission. Having read each of the medical reports in respect of Mr Burke chronologically in the course of preparing this judgment, I was struck by Mr Burke’s presentation to Dr Rose, described as follows:

2. [210]

   This is quite different to how Mr Burke presented to earlier medical professionals and I am troubled by the difference. Further, Mr Burke gave a history to Dr Rose recorded in a way which contained an important difference: (emphasis added)

3. [211]

   Mr Burke told Dr Rose that he could not stay or watch violence on television. He was binge-drinking, having 10 to 12 schooners a day followed by some spirits. Mr Burke had given up reading. He could concentrate on less than one page of printed matter at a time due to intrusive memories of his experiences in the police and flashbacks which interfered with his concentration.

4. [212]

   Dr Rose observed that, as described by Mr Burke, he had developed “virtually the full hand of symptoms of PTSD including flashbacks, intrusive memories of trauma, massive avoidance symptoms and considerable symptoms of hyper-arousal.” Dr Rose considered that the condition had stabilised and that maximum improvement had been achieved. He concluded that Mr Burke was totally and permanently incapacitated with a Whole Person Impairment of 22%.

Facebook

1. [213]

   In May 2011, MetLife retained AHC Investigations to conduct surveillance on Mr Burke. The investigator did a Facebook search. On his Facebook page, Mr Burke described himself as a self-employed personal trainer. He described an interest in books, including detective fiction and true crime. Such an interest may appear to be inconsistent with his professed inability to read more than a page and his general aversion to anything concerning the police. Mr Burke expressed an interest in cricket and surfing and had posted a photograph of himself in a dirt bike racing outfit. The investigators also undertook surveillance, which was roughly consistent with his Activity Statement. Mr Burke was seen driving around the local area, attending the gym at the local shopping centre, shopping and meeting friends at cafes.

2. [214]

   From his Facebook page, one might conclude that Mr Burke was a happy and active man. However, one would not ordinarily post photographs of oneself homebound and miserable. As Robb J said in Hellessey v MetLife Insurance Ltd [2017] NSWSC 1284 at [1003]:

3. [215]

   In Ziogos v FSS Trustee Corporation as Trustee of the First State Superannuation Scheme [2015] NSWSC 1385, Ball J made a similar remark at [104]:

4. [216]

   I think the significance of the Facebook posts, when viewed over the ensuing seven years in parallel with Mr Burke’s self-reporting of PTSD symptoms to doctors, is the wide disparity between how Mr Burke appeared on the outside and how he said he felt on the inside. On occasion, the Facebook posts and, to a lesser extent, the surveillance, showed Mr Burke undertaking activities which he said he could not. Whilst there are dangers in placing too much weight on this material, it should not be rejected out of hand. It all forms part of the factual matrix.

Dr Rees

1. [217]

   In July 2011, MetLife sought a report from Dr Anne-Marie Rees, who saw Mr Burke on 1 August 2011. Mr Burke gave a history broadly consistent with that given to Dr Diamond. He was criticised by MetLife for giving a history to Dr Rees which was exaggerated and embellished, including that the allegation by his ex-girlfriend in 2008 that he had smashed her window was “not even investigated”. In cross-examination, Mr Burke agreed that this was wrong but said that the doctor had written it down wrong. However, at the completion of the “history” section of her report, Dr Rees noted:

2. [218]

   I think it is likely that Mr Burke did give a history as recorded by Dr Rees, as his narrative overall was in somewhat hyperbolic terms. Of course, Mr Burke was being asked for the umpteenth time to relate a long and eventful history to yet another doctor within a confined timeframe and it seems likely that, in order to get his message across, Mr Burke gave an abbreviated and not entirely accurate summation which was somewhat self-serving. For example, Mr Burke said that at the time of his second arrest in 2006 he was “drinking heavily about four nights a week, twelve schooners of beer plus spirits.” This is obviously inconsistent with his declarations made in support of his application to join the Tactical Operations Unit at the time. Dr Rees concluded (emphasis added):

3. [219]

   Dr Rees did not consider that Mr Burke had been adequately treated. He did not appear to have had focussed PTSD treatments to assist with managing re-experiencing phenomena and hypervigilance, nor attended any groups for PTSD. Dr Rees suggested further treatment to assess whether there could be some relief of his symptoms, including anti-depressants and focussed behavioural strategies. Dr Rees noted that Mr Burke was not currently able to engage in work but considered that that may partly be due to the fact that he had a case with Work Cover which was under appeal and this may limit his progress until the case was solved. He may in the future be able to build up to working as a personal trainer. Dr Rees considered that Mr Burke would require at least another year before there might be a significant improvement in his symptoms. Dr Rees considered that Mr Burke would never be able to work in an occupation that he had education and training and experience.

4. [220]

   Dr Rees’ assessment was critically dependent upon one meeting with Mr Burke and what he told her about what had happened to him and how he had reacted to it. If it be the case that Mr Burke’s history, as given to Dr Rees, was materially incorrect, then Dr Rees’ diagnosis and prognosis is affected. Dr Rees was also able to assess Mr Burke’s physical presentation to her during that interview. Dr Rees noted that Mr Burke was:

5. [221]

   In September 2011, MetLife reviewed the claim. A memorandum prepared by Mr Dunn expressed disquiet at Mr Burke’s disciplinary history with NSW Police and Dr Rees’ opinion that, with proper treatment, his condition may improve within a year even if he was unfit for work at present. Mr Dunn suggested that the current focus should be on rehabilitation and whether Mr Burke had any skills that he could transfer into a career that would be in keeping with his education, training and experience. In particular, Mr Dunn questioned why Mr Burke was not able to work as a personal trainer. Mr Dunn’s views are, of course, not relevant to whether I conclude that Mr Burke does or does not suffer from PTSD but indicate MetLife’s consideration of the insurance claim at that point in time.

6. [222]

   On 12 September 2011, the Workers Compensation Commission conducted an arbitration between Mr Burke and NSW Police during which agreement was reached that NSW Police would pay Mr Burke lump sum compensation under sections 66 and 67 of the Workers Compensation Act in respect of 22% Whole Person Impairment in the sum of $32,500 and in respect of pain and suffering in the sum of $15,000, less 20%, being a total of $38,000. It would appear, therefore, that Allianz accepted Dr Rose’s assessment of Mr Burke. However, I am troubled by how Mr Burke presented himself to Dr Rose and the accuracy of the history that he gave both as to historical events and as to the extent of his ability to live a normal life.

7. [223]

   Further surveillance of Mr Burke was commissioned by MetLife. Mr Burke was observed going to the gym, the post office, homes in various locations in the local area and a car yard where he wandered around, spoke to several people and sat on a few motorbikes.

8. [224]

   From 19 October 2011, Mr Burke travelled overseas for three weeks.

9. [225]

   On 27 October 2011, a Notice of Claim was issued to the State of New South Wales outlining Mr Burke’s case against his employer. It related to the same factual matters as his now resolved claim against NSW Police, that is, PTSD arising out of the 2005 and 2006 arrests.

Dr Bertucen

1. [226]

   On 8 November 2011, Mr Burke arrived back in Australia and, that day, saw Dr Jeff Bertucen, psychiatrist, for assessment and report in respect of this claim. Dr Bertucen assessed Mr Burke as having Whole Person Impairment of 20%. Unlike the descriptions which he had given to Dr Rose and Dr Rees, Mr Burke did not mention the Hornsby siege to Dr Bertucen, who simply recorded that Mr Burke had resigned from NSW Police in 1997 “as his then wife had strong reservations about him being a police officer out of concern for his safety.” When asked why Mr Burke did not tell Dr Bertucen about the Hornsby siege, Mr Burke said, “I was there for a purpose, and that was to talk about the arrest… If this relates to the unlawful arrest, then that’s what I’d be speaking about.” Mr Burke then blamed the omission of such details on Dr Bertucen: “He may have omitted those things, because he was talking about the arrests. I can’t make assumptions on why he did, but he did.” Mr Burke’s answers on this point were argumentative and combative. Ultimately, Mr Burke accepted that he could not explain the absence of any reference to the Hornsby siege.

2. [227]

   What the medical reports do indicate overall is that, when a report was prepared in support of a claim for damages or compensation arising out of the 2005 and 2006 arrests, then the history given by Mr Burke focussed on the arrests and made little mention of earlier events which may have given rise to post-traumatic stress. When the report was prepared in support of a claim for TPD benefits, the history extended to the Hornsby siege and other traumatic experiences as a police officer. These differing histories and emphases are concerning.

3. [228]

   Mr Burke recounted to Dr Bertucen his experiences when arrested in 2005 and 2006, noting that the investigation was “fundamentally flawed as there were no photos taken of his injuries (bruises, torn clothes and a cut lip).” Such photographs were taken by Mr Burke and supplied to the duty officer, Sergeant Robson at the time. I do not know why Mr Burke told Dr Bertucen otherwise: perhaps he didn’t recall. In terms of past psychiatric history:

4. [229]

   Dr Bertucen concluded that Mr Burke continued to suffer from a chronic Adjustment Disorder with features of depressed mood and anxiety, of particular severity. His prognosis was pessimistic and he was likely to remain unemployable for the next 12 to 18 months at least. Dr Bertucen concluded that, if Mr Burke had not been arrested in 2005 and 2006 and had to deal with the resulting disciplinary proceedings, he would “almost without doubt, not have suffered a psychological injury of clinical severity.” Further, if the investigation had been completed in a timely manner of two to three months, then Mr Burke would have “undoubtedly experienced a few or no adverse psychological effects.” Dr Bertucen attributed Mr Burke’s psychological injuries to the 2005 and 2006 arrests and subsequent police investigations.

Further investigation of claims

1. [230]

   From January to April 2012, MetLife conducted further surveillance on Mr Burke with few sightings. Mr Burke’s activities appear to have reduced since the initial surveillance. Mr Burke was seen on several occasions going to the gym, the post office and home. On 18 April 2012, Mr Burke saw Dr Wade, who noted that Mr Burke had not showered in three days and was eating microwave food and baked beans out of a can.

2. [231]

   On 31 January 2012, Mr Burke completed his tax return for the year ended 30 June 2011. He declared income of only $120 from the business “Actifit Personal Fitness Training” and claimed expenses totalling $10,493. In March 2012, MetLife received Mr Burke’s tax returns for the 2009, 2010 and 2011 financial years. On the face of the tax returns, Mr Burke had, over those years, been earning an income, albeit small and diminishing, as a personal trainer.

3. [232]

   On 1 June 2012, Mr Burke settled his proceedings in the District Court against the State of New South Wales in respect of his arrests in 2005 and 2006. The Deed of Release, which MetLife did not have when it made its decision, recorded an agreement, without admission of liability, that the State would pay Mr Burke $142,500 inclusive of costs. Mr Burke’s entitlement and damages was limited to the damage attributable to the deprivation of his liberty and loss of dignity and “Mr Burke will file an amended statement of claim removing all reference to personal injury” from the pleadings. It was noted that it was intended that the Deed would act as a bar for any and all proceedings related to the alleged unlawful arrest and false imprisonment of Mr Burke. It is evident from the Deed of Release that it was not intended that the settlement would prevent Mr Burke continuing to seek damages for personal injury, being PTSD.

4. [233]

   On 13 June 2012, Dr Wade responded to a request from MetLife to respond to Dr Rees’ suggestions regarding further treatment. Dr Wade said Mr Burke had taken a high dose of anti-depressants since his last consultation and there was no evidence of any improvement in his functional capacity. Whilst Dr Wade accepted that Mr Burke had acquired many skills as a operational police officer, he did not consider that Mr Burke was able to work in any capacity as using these skills triggered and exacerbated his PTSD.

5. [234]

   In August 2012, MetLife retained an investigator, who gave Mr Burke a list of questions about his history with the Police Force and his employment history since. Mr Burke answered, advising that he had resigned as a police officer “for personal reasons” in 1997. He also advised:

6. [235]

   On 22 August 2012, Mr Burke participated in a recorded interview with the investigator. When the investigator tried to arrange the interview, Mr Burke declined to provide his residential address or to meet the investigator at his home, but suggested a nearby coffee shop. I do not think it was MetLife’s best idea to require a former police officer, who claimed to be suffering from chronic PTSD by reason, in part, of being subjected to two police interviews in 2005 and 2006, to submit to another recorded interview with a private investigator who insisted on referring to Mr Burke as “mate”. The interview traversed Mr Burke’s disciplinary history with the police. What MetLife thought it might gain from such an interview is unclear. This degrading experience prompted Mr Burke to write a detailed type-written complaint of five pages about MetLife’s delay in finalising his claim and requiring him to participate in the interview at all. Mr Burke’s detailed complaint suggests he was capable of concentrating on a task and preparing a detailed piece of work at his computer, which is not consistent with the extent of his disability described by Mr Burke to various psychiatrists at that point in time. The document does contain a reference to Mr Burke as “the client”, which indicates that he may have been assisted in preparing the document by his solicitors, albeit that overall the document is similar in language and content to other documents which Mr Burke had penned without assistance.

7. [236]

   In any event, the investigator submitted a report to MetLife which expressed a generally dubious view about the authenticity of Mr Burke’s claim. The investigator’s findings are of no interest to me in determining whether Mr Burke suffered from PTSD, save that it was a matter to which MetLife had regard in assessing Mr Burke’s claim. The investigator recommended a period of further surveillance. The investigator suggested that MetLife wait for a couple of weeks after the interview before commencing a second period of surveillance.

8. [237]

   In September 2012, Mr Burke travelled to the United States for 30 days for a holiday. On his return, Mr Burke completed an incoming passenger card for immigration which gave an address in Terrigal, which I note is an address which he told the investigator in the interview was not one at which he had ever lived. It seems to me that, by this time, Mr Burke was aware that MetLife was conducting surveillance on him.

9. [238]

   By November 2012, Mr Burke had formed a relationship with his current partner, Ms Brand. Photographs of Mr Burke and Ms Brand posted on his Facebook page portrayed a happy couple away for the weekend and in formal attire at a school event.

10. [239]

    In December 2012, Mr Burke saw Dr Selwyn Smith, psychiatrist, for a medico-legal opinion. According to the history recorded in the report provided in January 2013, Mr Burke resigned from the police force in 1997 against the background of difficulties with his marriage.

11. [240]

    Mr Burke reported being depressed, despairing, irritable and anxious and displayed a depressed and anxious effect to Dr Smith. MetLife submits this was not consistent with the recent photos posted on Facebook of Mr Burke looking happy and well. Dr Smith formed the view that Mr Burke suffered from chronic PTSD and had also experienced an adjustment disorder with mixed depressed and anxious mood with accompanying secondary alcohol dependence. He viewed his prognosis for recovery as poor.

12. [241]

    In February 2013, further photographs were posted on Mr Burke’s Facebook page showing him on holiday in Queensland with Ms Brand and their children including attending theme parks, a country fair and restaurants. In January 2013, the private investigator submitted a further report to MetLife which again is of little interest to me save that the investigator made some enquiries as to whether Mr Burke was training at the gym for himself or as a personal trainer and sought to delve further into Mr Burke’s disciplinary history with NSW Police.

13. [242]

    In February 2013, Mr Burke posted a photograph on Facebook of himself looking happy having caught a very large fish out at sea. In March 2013, a photograph showed a smiling Mr Burke cooking and a comment by Ms Brand from which it appears that he was making dinner for her. Another photograph posted later that month showed Mr Burke away for the weekend with Ms Brand riding mountain bikes, reading books and looking happy and relaxed.

14. [243]

    In May 2013, Mr Burke saw Dr Bertucen again and described experiencing chronic symptoms of PTSD and that he continued to see Dr Wade every two months, Mr Peters every two months and to take anti-depressants both regularly and additional medications during periods of high emotional disturbance, which Mr Burke said he needed about every three weeks. Mr Burke described his emotional state as highly erratic and fragile largely owing to frequent entrenched ruminations about injustice done to him by NSW Police. Mr Burke described regular binge sessions of hazardous amounts of alcohol. Dr Bertucen concluded that Mr Burke continued to suffer chronic adjustment disorder with features of depressed mood and mixed emotions, and to display clinical features of a secondary chronic alcohol abuse condition. The doctor concluded that Mr Burke had 18% Whole Person Impairment. Dr Bertucen considered that Mr Burke be able to perform some kind of semi-autonomous part-time employment with no contact with the general public, (such as forestry or grounds keeping), over the next 12 months.”

15. [244]

    A fortnight after seeing Dr Bertucen, a photograph of Mr Burke with his family was taken and posted on Facebook, in which Mr Burke appears happy and well, having attended a social occasion with his children.

First procedural fairness letter

1. [245]

   On 23 May 2013, MetLife sent Mr Burke a “procedural fairness” letter providing a list of documents that MetLife had acquired during its assessment process and drawing his attention to documents that contained possibly adverse information, being the reports of Mr Peters which suggested that Mr Burke’s PTSD was in remission and he was still able to be employed in some form of paid occupation; the Vocational Questionnaire completed by Mr Burke together with the Activity Reports, surveillance reports, workers’ compensation file, the report of Dr Rees, Facebook pages and records of interview taken by the private investigator with Mr Burke and Superintendent Swilks. In the latter interview, Superintendent Swilks generally outlined the nature of the disciplinary proceedings against Mr Burke and noted that there was an issue about him undertaking secondary employment while suspended which “we were going to talk to him about it but I believe at that time there were other issues we were dealing with in relation to him.” Whilst it is not admissible evidence before me as to whether Mr Burke in fact was capable of working as a fitness instructor, either then or now, it was a matter which was before MetLife when deciding whether to accept the claim under the policy.

2. [246]

   Mr Burke was invited, in the “procedural fairness” letter, to make any submissions with respect to the list of documents and to submit any further information or medical reports that Mr Burke would like MetLife to take into account when deciding his claim. It was apparent from MetLife’s letter that it was concerned that Mr Burke in fact was able to work in at least a part-time capacity and was not disabled by PTSD so as to meet the definition of TPD within the policy.

3. [247]

   On 12 June 2013, MetLife obtained a report from Mr Peters as to whether he considered Mr Burke to be a reliable historian, the treatment which Mr Burke had received and whether the diagnosis was affected by Mr Burke’s alcohol intake. Mr Peters was asked to comment on the Facebook posts and whether it was incongruous with the way in which Mr Burke had portrayed himself to Mr Peters. Mr Peters relied:

4. [248]

   In late June 2013, further surveillance was conducted on Mr Burke. Photographs of Mr Burke showed him going to a cafe, socialising, smiling, shopping, and walking his dog on the beach. In addition to obtaining further surveillance, MetLife sought to arrange a medical appointment with Mr Fathers for psychometric testing, as well as a further vocational assessment. However, on 5 July 2013, First State Super objected to these further reports on the basis that the claim had been made some two and a half years ago and a procedural fairness letter had already been issued. First State Super also queried the utility of psychometric testing and the qualifications of Mr Fathers, a forensic psychologist, to administer such tests, specifically a MMPI, and doubted that test’s usefulness compared to the newer MMPI-2 and MMPI-2-RF. First State Super suggested that MetLife await Mr Burke’s response to the procedural fairness letter before determining whether further investigations were warranted. The appointment with Mr Fathers was cancelled.

5. [249]

   On 1 August 2013, MetLife received Mr Burke’s response to the “procedural fairness” letter. Mr Burke pointed to the consistent diagnosis of PTSD by a number of doctors, suggested that the surveillance and vocational material did not depart from the diagnoses and submitted that he fulfilled the definition of TPD within the meaning of the policy. This did not abate the concerns of MetLife which, in August and September 2013, continued its investigation in respect of Mr Burke’s prior workers’ compensation claim and his disciplinary history with NSW Police. Mr Burke declined MetLife’s request to access his personnel file.

Second procedural fairness letter

1. [250]

   On 18 October 2013, MetLife sent Mr Burke a second “procedural fairness” letter, noting that Mr Burke had not commented on the financial evidence attached to the first letter. MetLife noted that Mr Burke had obtained an ABN number for Actifit Personal Fitness Training on 11 June 2009 and declared income and claimed expenses in subsequent tax returns. Mr Burke’s comments and submissions were sought, noting “we have now completed our investigations with respect to your claims”. Mr Burke’s response was sought within 30 days. It was readily apparent from the procedural fairness letters that MetLife was not minded to accept the claims on the policies.

Legal proceedings commenced

1. [251]

   It would appear that Mr Burke’s solicitors formed the same assessment of the procedural fairness letters. On 22 October 2013, Mr Burke commenced proceedings in the Industrial Court of New South Wales against MetLife for its alleged failure to properly determine Mr Burke’s claim. On 28 October 2013, Mr Burke’s solicitor also responded to the second procedural fairness letter as follows:

2. [252]

   On 30 October 2013, Mr Burke’s accountant, Mr Bentley, emailed amended tax returns for 2009 and 2010 to Mr Burke, saying:

3. [253]

   Mr Burke replied, asking whether this explanation also applied to the 2011 return and was informed by his accountant that the 2011 tax return did not contain any business trading information. The 2011 return was not amended, although I note that it does contain a declaration of minimal income and the claiming of a substantial amount of expenses. I find these emails troubling. Mr Bentley’s email appears to me to have been drafted to contain a self-serving explanation of why Mr Burke’s earlier returns disclose a position different to that which he sought to advance to MetLife. I consider that the tax returns, as originally prepared, are more reflective of the real position than the amended returns prepared once the implications of those returns were brought to Mr Burke’s attention by MetLife.

4. [254]

   In December 2013, MetLife’s solicitor informed Mr Burke’s solicitor that it did not consider that the Industrial Relations Court had jurisdiction to make the declaration sought by the client. MetLife proposed to agitate this issue in related proceedings which had been filed in that Court and were to be heard on 3 February 2014. Presumably, that is what happened. In May 2014, Mr Burke’s solicitors wrote to MetLife advising that they had sought to have the matter relisted for allocation of a hearing date, noting that they considered the Court to have jurisdiction. However, Boland J deferred the directions hearing until determination of the jurisdictional question in the related proceedings.

Third procedural fairness letter

1. [255]

   On 26 June 2014, MetLife issued its third procedural fairness letter to Mr Burke. MetLife noted that Mr Burke had refused to provide his consent to obtain his personnel and medical discharge files from NSW Police. Although MetLife considered that these documents should be taken into consideration in assessment of the claim, MetLife said that it did not wish to further delay the final determination of the claim. MetLife again listed the documents in its possession, and invited Mr Burke to agree to supply the personnel and medical discharge files.

2. [256]

   On 21 July 2014, Mr Burke’s solicitors responded, essentially summarising the materials which MetLife had available to it, complaining in strong terms about MetLife’s delay and submitting that the evidence was overwhelming in support of payment of the benefits: “indeed, on our analysis, there is no evidence to the contrary.” Mr Burke also replied to MetLife’s letter in a six-page typed document attaching a further 54 pages of material. Mr Burke’s comments were articulate and exhibited detailed knowledge of the materials gathered to support his claim including the medical reports. Mr Burke explained why he had refused MetLife’s request to access his personnel file, which was largely due to his frustration with how long MetLife was taking to accept his claim. Further, Mr Burke explained the amendment to his tax returns and stated:

3. [257]

   In September 2014, Mr Burke travelled to New Zealand for a holiday for a week.

4. [258]

   In October 2014, MetLife sent Mr Burke’s solicitor a fourth procedural fairness letter and filed a motion to dismiss the proceedings for want of jurisdiction. The parties appear to have proceeded thereafter on the basis that MetLife did not accept the insurance claims, and the matter would be determined in Court. Ultimately, in November 2014, the proceedings were transferred to the Supreme Court of New South Wales. In March 2015, the Summons was filed.

5. [259]

   In May 2015, Mr Burke travelled to Thailand for a holiday for some 12 days.

6. [260]

   On 2 November 2015, MetLife issued a subpoena in these proceedings to the Department of Immigration, a medical centre where Mr Burke’s GP worked, Mr Peters and Hunter Financial Planning. On 4 November 2015, Mr Burke executed an amended statement of claim in these proceedings.

7. [261]

   Contrary to the two-stage approach referred to earlier, Mr Burke submitted that the Court should consider whether he is entitled to a TPD benefit under the policies by reference to the material available to MetLife as at 4 November 2015 alone. Mr Burke submitted that, at that date, MetLife was in breach of its obligations as an insurer to make a timely decision: Edwards v The Hunter Valley Dairy Cooperative Limited at 77,536-7; McArthur v Mercantile Mutual Life Insurance at [72]; CGU Insurance Limited v AMP Financial Planning Pty Limited (2007) 235 CLR 1; [2007] HCA 36 at 27, [71] per Kirby J. Mr Burke submitted that the Court would assess what would have occurred if MetLife had made a decision at that time, else MetLife will profit from its breach by being able to utilise the compulsory processes of the court to further investigate Mr Burke’s claim. Mr Burke relied on Heitman v Guardian Assurance Co Ltd & Anor (1992) 7 ANZ Ins Cs 77,483 at 77,491-2; Bradley v Voltex Group Holdings Pty Limited [2016] FCA 1230 at [91] and McArthur v Mercantile Mutual Life Insurance Company at [12]-[13]. If the Court adopts this approach then, effectively, all of the material which supported MetLife’s decision of 23 August 2017 would be disregarded.

8. [262]

   Mr Burke’s senior counsel submitted that the possibility of a preliminary stage was alluded to by Parker J in Newling v FSS Trustee Corporation (No 2) [2018] NSWSC 1405 at [226] to [237], and advocated to his Honour in Sargeant v FSS Trustee Corporation. The latter judgment was handed down by Parker J several weeks after this trial. His Honour found that the delay in that case did not amount to breach on the part of the insurer, and therefore found it unnecessary to decide what the consequences of such a breach would have been. As matters stand, there is no authority in cases in this field to support a preliminary stage and I do not propose to depart from the two-stage approach dictated by authority which binds me: TAL Life Ltd v Shuetrim.

9. [263]

   In any event, a preliminary stage faces several difficulties. Privity of contract deprives Mr Burke of standing to sue MetLife for breach of the insurance policies, which were between MetLife and First State Superannuation. The comments of the Court of Appeal in Sayseng, while strictly obiter, are informative. Santow JA (with whom Spigelman CJ and Tobias JA agreed), after reviewing the authorities in light of Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107, concluded, at [70]:

10. [264]

    It does not have the result that breach of an insurer’s duties sounds in damages for breach of contract, whether founded upon an exception to the doctrine of privity or not: per Santow JA at [70]-[72]; see also Bryson J at first instance in Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 at [78]-[80]. As Leeming JA noted in in Shuetrim at [56], there is no such claim. Even if there was, a court would ordinarily assess damages for breach of contract on the basis of evidence available at the trial including as to post-breach events so that damages for breach could be assessed on the basis of actual loss suffered to the extent known rather than prospective loss based on speculation: Johnson v Perez (1988) 166 CLR 351 at 368-9 (per Wilson, Toohey and Gaudron JJ; Willis v Commonwealth (1946) 73 CLR 105 at 109 (per Latham CJ). Such an assessment would not exclude post-breach material. The cases cited by Mr Burke, when examined, do not suggest otherwise.

11. [265]

    On 19 November 2015, MetLife issued subpoenas to the workers’ compensation insurer and NSW Police.

12. [266]

    On 2 December 2015, Mr Burke posted a comment on Facebook. A woman had posted a photograph of herself on the beach in a pose to exhibit her fitness and strength and Mr Burke claimed some credit saying “they’re my shoulders”, to which the woman replied she would give him some credit as he had worked them hard occasionally. This would indicate that Mr Burke had trained with this woman in some capacity. In December 2015, Mr Burke posted another comment on Facebook in respect of the same woman and her friends indicating he had a social relationship with the group. In December 2015, Mr Burke also saw Dr Bertucen for a further report.

13. [267]

    In May 2016, Dr Bertucen provided his further report noting that Mr Burke had discontinued any medication since early 2014 when he also ceased seeing Dr Wade and Mr Peters. Dr Bertucen maintained his diagnosis that Mr Burke suffered from chronic PTSD and co-morbid major depressive disorder substantially attributable to an accumulation of traumatic and distressing workplace incidents over the course of his career, particularly between 1998 and 2009. The 2005 and 2006 arrests constituted a significant aggravating factor. Mr Burke met the definition of TPD. Importantly, Dr Bertucen had viewed the surveillance material but this did not prompt him to amend his diagnosis. The fact that Mr Burke was “still capable of limited socialising in public venues … should not be taken as in any way mitigating or offsetting his distressing and disabling psycho-pathologies.”

Mr Burke’s affidavit

1. [268]

   On 2 June 2016, Mr Burke swore an affidavit in these proceedings. Mr Burke described a series of distressing experiences witnessed during his service as a police officer including attending a scene of an accident where an elderly man had been run down by a motor vehicle, attending riots, dealing with drug- or alcohol-affected offenders, high-speed pursuits, attending the scene of a suicide where a person had leapt from a building, attending domestic violence incidents, attending the scene of a stabbing where the victim died in front of Mr Burke. Mr Burke then described the Hornsby siege. Mr Burke said he was the first officer to attend.

2. [269]

   Mr Burke agreed that Dr Maclean’s note in his report, “Michael said that he wasn’t particularly distressed by the incident” was “virtually opposite to what I put in my affidavit” and did not recall telling Dr Maclean that he had no significant problems as a result of the siege. Mr Burke explained the difference this way: the affidavit was in his words and Dr Maclean’s report was in the doctor’s words. “He’s interpreted what I’ve told him and put it his way.” Having looked at the contemporaneous records and the evolution of Mr Burke’s description of the Hornsby siege, I think Mr Burke told Dr Maclean what was recorded in the doctor’s report and, 19 years later, recorded a more embellished version in his affidavit. I note that Mr Burke said, for example, the Hornsby siege lasted for 12 hours; whilst the COPS report said it took two and a half hours from the initial domestic dispute.

3. [270]

   A fair reading of Mr Burke’s affidavit is that it was the Hornsby siege which prompted his resignation from NSW Police in July 1997, when Mr Burke says he was under extreme emotional distress, consuming excessive quantities of alcohol and had become a recluse. This can be compared with Mr Burke’s explanations given in 1997 and 1998, to NSW Police, Dr Maclean and Ms Fisher as to why he resigned. Mr Burke deposed that he did not consult a doctor during this time,

4. [271]

   Mr Burke then describes the racist comments he received thereafter and the effect such comments had on him. He describes how, in 1998, an offender drove a vehicle straight at him and “only missed killing me by inches.” He also recalled trying to arrest an offender in a stolen car, who drove away at speed while Mr Burke was holding on to the door. He described a dramatic pursuit of two robbers and a fight with them on the Eastern Distributor, Darling Harbour; executing a search warrant in the homes of dangerous offenders and arresting armed offenders. Mr Burke recalls his time as an undercover officer made he found “very tense and emotionally draining”, leading him to feel apprehensive, anxious, hypervigilant and fearful. In about 2002 or 2003, Mr Burke attended six sessions with a psychologist in Gosford, through the Employee Assistance Program. By 2004, Mr Burke says he was no longer the person that he once was, his alcohol intake had significantly increased, and he felt his personal life was in ruins. Mr Burke described the Iguana Joe’s event, his arrest in 2005 and 2006 and the impact these events had on him. Mr Burke added that “in mid to late 2006 I discovered that Timbrell had a close association with the main offender who had assaulted me in 2005.” The basis of this discovery is not stated. Mr Burke described a series of disturbing experiences thereafter in the course of his policing duties.

5. [272]

   Mr Burke says that he undertook his training as a personal trainer on Mr Peters’ suggestion. He also made an application under the Freedom of Information Act for the custody records, COPS reports and all documents associated with the investigation conducted by Detective Senior Sergeant Timbrell. He received these documents on 9 July 2009, which enraged him; apparently because the documents, which were not before me, suggested that a decision had been made not to proceed against him in December 2007.

6. [273]

   Mr Burke described his diminished social circumstances, noting that on regular occasions he goes dirt biking, usually on his own or with a close friend. He continues to take medication and suffer the side effects. He avoids people and is reluctant to mix in social situations in areas such as shopping centres. He says that “I have never worked as a personal trainer”, which I do not accept. Mr Burke said that he attempted a job trial with his brother who owns a waterproofing business, following his medical discharge from NSW Police in November 2010: “I was picked up by my brother and tagged along very few occasions in an attempt to get myself back into the work force.”

7. [274]

   Dr Bertucen was provided with Mr Burke’s affidavit, and provided a further report advising that it reinforced his diagnosis. The doctor considered that the events described by Mr Burke up until his resignation in 1997 contributed materially to his latest psychological condition. So too did the events from 1998 to 2004, and from 2005 to 2009.

8. [275]

   In June 2016, Mr Burke’s solicitors served Mr Burke’s affidavit on MetLife together with two folders of documents to be relied upon. The documents comprised the medical reports already referred to in this judgment, Mr Burke’s pay records and tax returns, the awards which governed Mr Burke’s employment, selected documents from the Workers Compensation and District Court proceedings, correspondence with MetLife and, interestingly, the Vocational Questionnaire and Activities Statement completed by Mr Burke for MetLife together with the private investigator’s reports obtained by MetLife. It would appear from this that Mr Burke considered the surveillance and photographs obtained by the investigators to be consistent with the medical diagnosis rather than inconsistent. In addition, Mr Burke served and indicated he intended to rely upon the statements obtained by Mr Briggs in late 2009, and Mr Briggs’s report, which touched upon Mr Burke’s disciplinary history with NSW Police.

Professor Mattick

1. [276]

   In August 2016, MetLife obtained two reports from Professor Richard Mattick, a clinical psychologist. MetLife asked Professor Mattick to explain the differences between medical practitioners in the field of psychiatry and psychology, the assessments which each undertook and the minimum time that should elapse between conducting such assessments. Professor Mattick described psychiatrists, clinical psychologists and neuropsychologists as having quite distinct and separable skill sets and methods of examination. It seems from this that MetLife was endeavouring to identify which medical professional it should use to assess the veracity of the diagnosis of Mr Burke. Having done so, MetLife instructed Professor Mattick to assess the extent of Mr Burke’s psychological symptoms and level of functioning. MetLife also asked Professor Mattick to administer appropriate clinical psychological assessments to assess Mr Burke’s present level of psychological symptoms, general intellectual ability and level of psychological functioning.

2. [277]

   As Professor Mattick’s expertise to undertake this task was challenged by Mr Burke in these proceedings, it is necessary to review it. Professor Mattick is a Professor at the Faculty of Medicine and a Professor of Brain Sciences at the University of New South Wales. He was a Principal Fellow of the Australian National Health and Medical Research Council for several years. On completion of his undergraduate degree in psychology, Professor Mattick worked at Prince Henry Hospital as a research psychologist for two years in the clinical research unit for anxiety disorders, developing national assessment and treatment guidelines for psychiatrists and psychologists to use in the management of anxiety and somatic disorders and the assessment of patients with anxiety symptoms including PTSD. Professor Mattick also assisted the Royal Commission into the effects of Agent Orange on Australian Personnel in Vietnam on the psychological effects of combat, PTSD, and treatment of the disorder. In the course of further clinical study in undertaking a Masters of Psychology degree, Professor Mattick did a clinical intern placement at the psychiatry department, Prince Henry Hospital, assessing and treating adult patients with severe anxiety disorders and PTSD and other trauma-related disorders. He undertook a second clinical internship placement at the clinical research unit for anxiety and depression at St Vincent’s Hospital, assessing and treating adult patients with Acute Stress Disorder and complex PTSD. Professor Mattick has assessed more than 400 patients using DSM diagnostic criteria and has treated patients with cognitive behavioural therapies for the management of complex PTSD and other disorders. In the course of a doctoral degree, Professor Mattick prepared a research thesis on the topic “Nature, assessment and treatment of DSM Anxiety Disorders”, the papers from which have been widely cited since.

3. [278]

   In more recent times, Professor Mattick has given greater focus to alcohol and drug use disorders. He is presently the Professor of Drug and Alcohol Studies in the National Drug and Alcohol Research Centre at the University of New South Wales. It appears, therefore, that Professor Mattick’s qualifications, training and experience in relation to PTSD in academia and in hospitals is extensive but not recent. However, since 1995 until the present time, Professor Mattick has also worked in private practice assessing a range of clinical conditions including PTSD. I consider that Professor Mattick has the necessary qualifications to assess Mr Burke.

4. [279]

   MetLife briefed Professor Mattick with, essentially, all of the material which it had and which I have referred in this judgment from 1990 on, including materials obtained from Mr Burke’s personnel and disciplinary files with NSW Police but not the police statements obtained in respect of Iguana Joe’s. None of the doctors who had seen Mr Burke to that point in time had been briefed with such a range of contemporaneous documents going to the events which had occurred in Mr Burke’s career with NSW Police. Most were reliant upon Mr Burke’s description of those events which, it seems to me, had changed over time, perhaps understandably, and contained a number of material embellishments.

5. [280]

   On 3 October 2016, Professor Mattick provided his report to MetLife, having interviewed Mr Burke on 31 August 2016. Professor Mattick took a detailed history, indeed, the most detailed of any of the reports which I have read. Mr Burke described in detail his experiences in NSW Police. In respect of the Hornsby siege, the Professor records:

6. [281]

   Professor Mattick reported significant matters from his review of the documents provided to him, in particular, the MMPI-2 tests undertaken in 1998, 2003, 2005 and 2006. Professor Mattick’s reading of the documents was that Mr Burke did not have any emotional disturbance until he was charged over the events at Iguana Joe’s. Professor Mattick concluded that Mr Burke had suffered an Adjustment Disorder in the past but had difficulty accepting that PTSD was a major feature of the case given Mr Burke’s good psychological well-being as measured on a variety of valid questionnaires through to 2006.

7. [282]

   Professor Mattick noted that, although Mr Peters diagnosed Mr Burke with PTSD by June 2009, Mr Peters did not administer questionnaires such as MMPI, nor have access to the earlier document documents and MMPI results. Professor Mattick considered that there was nothing in Mr Peters’ (or Dr Wade’s) clinical notes and records which indicated there was any clear intervention concerning post-traumatic stress symptoms.

8. [283]

   Professor Mattick agreed that, taken at face value, Mr Burke met the criteria required for PTSD, but did not show any sign of it during the long assessment. Professor Mattick saw Mr Burke for five hours, during which time Professor Mattick saw no signs of anxiety or depression. Mr Burke was tearful only once, when he discussed his father’s recent death.

9. [284]

   Professor Mattick administered questionnaires to assess Mr Burke’s emotional functioning. On the Depression Anxiety Stress Scales (DASS), Mr Burke endorsed every symptom, achieving elevated scores on those scales. Mr Burke then completed the Hopkins Symptom Checklist 90-Revised which contains nine sub-scales and 90 items. Mr Burke endorsed 88 of the 90 symptoms as having affected him in the past seven days, including that day, and achieved elevated scores on all of the nine sub-scales assessing psychosis, paranoid ideation, phobic anxiety, hostility, anxiety, depression, shyness, obsessive compulsive traits and somatic symptoms. This led Professor Mattick to be concerned that Mr Burke was overstating his symptoms. Professor Mattick did not believe that Mr Burke was suffering any true symptoms of psychosis or obsessive compulsive traits, and noted that Mr Burke had denied somatic symptoms affecting him in terms of pain or dysfunction and had denied phobic anxiety.

10. [285]

    Having regard to Mr Burke’s results on completing these tests, Professor Mattick considered there was evidence of exaggeration or overstatement of emotional disturbance. To determine whether Mr Burke may have been overstating his emotional disturbance, Professor Mattick had Mr Burke complete MMPI-2-RF which, as already mentioned, contains a number of Validity Scales to detect non-responsiveness, under-reporting or over-reporting. The results on the Validity Scales to detect under-reporting were low, indicating that there was no evidence of under-reporting. However, the results on the four of the five Validity Scales designed to identify over-reporting were of concern.

11. [286]

    On the F-r (Infrequent Responses) scale, Mr Burke’s score was 111, which Professor Mattick described as extreme, being six standard deviations or more above the average. According to the Manual, elevated scores on F-r are associated with over-reporting of a broad range of psychological, cognitive and somatic samples. Such a score may be interpreted as: “For individuals with no history or current corroborating evidence of dysfunction, it most likely indicates over-reporting.” However, elevated scores can, up to a certain level, also be generated by individuals experiencing genuine difficulties. Therefore, extra-test considerations, such as whether the individual has a documented history of significant dysfunction, are crucial to proper interpretation of scores on the scale. Significant psycho-pathology or pronounced emotional distress can also result in deviant scores on the scale. Professor Mattick did not believe that Mr Burke was suffering a very high level of emotional disturbance given his presentation during the interview.

12. [287]

    On the F-s (Infrequent Somatic Responses) sub-scale, Mr Burke scored 91 which, according to the Manual, indicates possible over-reporting of somatic symptoms by the assertion of a much larger than average number of somatic symptoms rarely described by individuals with genuine medical problems.

13. [288]

    Likewise on the FBS-r (Symptom Validity) scale, Mr Burke’s score of 86 was in the range of possible over-reporting as indicated by an unusual combination of responses associated with non-credible reporting of somatic and/or cognitive symptoms. Professor Mattick did not believe that this could be explained by any cognitive impairment and so the result was indicative of exaggeration. Finally, on the RBS (Response Bias) scale, Mr Burke’s score of 109 was six standard deviations above the mean and at such a high level that his cognitive complaints were likely to be invalid with over-reporting indicated by a very unusual combination of responses strongly associated with non-credible memory complaints. Professor Mattick’s interpretation of the results of the Validity Scales accords with my reading of the manual.

14. [289]

    Professor Mattick considered that Mr Burke would improve once his claim was settled.

15. [290]

    On 6 October 2016, a local cricket club posted an item noting that Mr Burke had scored 44 runs in a cricket match and was part of the team of the week. Mr Burke agreed that he played cricket but only for a very short number of games as he got involved in a number of altercations and had to stop playing because the anxiety involved in a team environment and confrontational situations were too much for him. On 8 October 2016, a photograph was posted on Facebook of Mr Burke with his partner and children at the beach. Mr Burke appeared well.

Dr Rees’ comments on Professor Mattick’s report

1. [291]

   Having received Professor Mattick’s report, MetLife sent it to Dr Rees and asked her to comment on the diagnosis and whether she maintained hers, including having regard to further documentary material sent to her, as it had been sent to Professor Mattick. Dr Rees saw Mr Burke on 11 October 2016. Mr Burke told Dr Rees that he “is worse now than he was when I last saw him”. Mr Burke said that the surveillance conducted by MetLife had made things worse. When asked to comment about the fact that he had presented normal psychometric tests in 1998 and 2003, Mr Burke said he had the symptoms but hid them.

2. [292]

   Dr Rees deferred to Professor Mattick’s interpretation of the MMPI results, and also noted that she had only interviewed Mr Burke for an hour and a half. As a psychiatrist, Dr Rees noted that information from Validity Scales needed to be incorporated into a general assessment rather than viewed as totally invalidating all other assessments. Dr Rees did not observe any inconsistencies between Mr Burke’s self-report and her objective examination of him, noting that he was quite anxious and on edge and irritable during their meeting, broke down when talking about his father and appeared fairly angry.

3. [293]

   Dr Rees agreed that the scores on the symptom validity rating scale were concerning and it appeared that Mr Burke had exaggerated his symptoms especially when he scored 88 out of 90 positively on the symptom profile questioning. Dr Rees surmised that Mr Burke may have done this because he could not be bothered to answer the questions properly. Such surmising is not, I think, particularly useful. Dr Rees also suggested that another test called TOMM (Test of Memory Malingering) be conducted as well:

4. [294]

   Dr Rees, in summarising the evidence, considered that given Mr Burke’s diagnosis with PTSD by multiple psychiatrists as well as his treating psychiatrist Dr Wade over many years “It would be unnecessary to revoke this diagnosis completely based on this.” She added, in answering whether the objective evidence supported the past diagnoses:

5. [295]

   I am not sure why this follows. If the diagnosis of Dr Wade is questionable, as I think it is, and the subsequent psychiatric reports were based upon inaccurate histories, then the fact that a series of psychiatric reports have accumulated based, in part, on the validity of the reports which preceded them, does not of itself support the continuation of a diagnosis which is, when closely examined, ill-founded.

6. [296]

   Dr Rees noted that PTSD will wax and wane and, although she could not be sure whether Mr Burke had significant PTSD symptoms at the time she saw him, his symptoms were in keeping with the diagnosis of PTSD in the past. Dr Rees also had regard to the fact that he had been treated for many years by Mr Peters and Dr Wade who had identified genuineness in his presentation. Again, if Mr Peters’ and Dr Wade’s diagnoses were flawed, then Dr Rees reliance upon their diagnoses to support her own is problematic. Dr Rees maintained her opinion that Mr Burke met the definition of TPD.

7. [297]

   In respect of the MMPI-2 testing, Dr Rees cautioned that this was not a clinical interview by a psychiatrist and needed to be looked at with caution. As Mr Burke was not actively unwell in the earlier assessments, the results of the earlier MMPI-2 reports could have been significantly skewed. Dr Rees considered that Mr Burke did not become clinically unwell until 2005 or 2006. As such, earlier test results were not conclusive as indicating that he did not have PTSD symptoms prior to 2006. As I understand Dr Rees, the earlier MMPI-2 tests indicate that from 1998 to 2006, Mr Burke was not actively unwell but may have been experiencing symptoms of PTSD. Another conclusion, which Dr Rees does not explore, is that Mr Burke was not suffering from PTSD at all over those years. Nor did Mr Burke see any doctors or psychologists over this period from 1998 to 2006 reporting any distress or trauma.

Reports of Dr Bertucen and Dr Diamond

1. [298]

   On 1 November 2016, Mr Burke served supplementary reports of Dr Bertucen and advised that the plaintiff’s evidence in chief was complete. MetLife served its “Stage 1 evidentiary bundle” and Professor Mattick’s report of 3 October 2016, which included all of the material obtained by MetLife since January 2011 in relation to the claim including documents obtained on subpoena in the proceedings and the recent reports of Professor Mattick and Dr Rees. On 23 November 2016, MetLife received a further investigator’s report attaching various documents posted on Facebook by Mr Burke and others.

2. [299]

   In March 2017, Mr Burke obtained a report from Dr Michael Diamond who saw Mr Burke on 9 March 2017 and also reviewed the “Stage 1 evidentiary bundle”. Mr Burke told Dr Diamond he was aware of the surveillance that had taken place over the years and on occasions had witnessed being observed and filmed. He believed he had nothing to hide. Mr Burke expressed distress about being assessed by Professor Mattick. Mr Burke thought he was seeing a psychologist who was a clinician rather than attending for psychometric testing. He said he had done the MMPI test many times before when he was in the police and it was not unfamiliar to him. He had been regularly disbelieved in these assessments,

3. [300]

   Mr Burke compared this to his experience with Dr Rees who he described as thorough, professional and compassionate. Dr Diamond described Mr Burke’s presentation at this interview almost to the level of intensity described by Dr Rose. Dr Diamond considered the surveillance material was consistent with Mr Burke’s description of his lifestyle. Dr Diamond also considered that the medical reports provided to him contained a remarkably clear and consistent description of Mr Burke as an individual with obvious and disabling psychiatric illness diagnosed consistently as chronic PTSD and associated alcohol abuse and alcohol dependence.

4. [301]

   Dr Diamond summarised each of the medical reports, describing Mr Briggs’s initial assessment as based on “an inaccurate and biased account of events and reached a ‘convenient’ conclusion”. Dr Diamond also criticised Professor Mattick’s report as documenting Mr Burke’s history “in such as manner as to trivialise the content provided by Mr Burke and to present it in a way that suggests flippancy, superficiality and bravado on the part of Mr Burke.” I must say I did not view either of Mr Briggs’ or Professor Mattick’s reports in this way.

5. [302]

   Dr Diamond found the results on the MMPI-2 testing hardly surprising given Mr Burke’s description of his emotional state during the meeting with Professor Mattick, which necessarily discounted Professor Mattick’s description of Mr Burke’s presentation. Dr Diamond accepted Mr Burke’s explanation that he was familiar with the tests and able to avoid detection of psychiatric illness when completing them so as to avoid damage to his career, although it is not clear to me how Mr Burke would have been able to do this. Dr Diamond’s assessment of Professor Mattick’s approach was scathing, describing it as “not credible” and “blatantly incorrect”. Dr Diamond maintained his diagnosis of chronic PTSD. Dr Diamond considered that Mr Burke met the definition of TPD within the meaning of the policy.

Vocational assessment

1. [303]

   On 1 August 2017, MetLife instructed Allied Health Assessments to conduct a desktop vocational assessment on Mr Burke. Its report was provided on 11 August 2017. The author of the report identified transferrable skills likely gained by Mr Burke given his employment history and vocational options as well as employment opportunities in his local area. These included a fitness instructor, construction worker, process worker, customer service officer, funeral attendant, public servant or courier.

MetLife formally rejects Mr Burke’s claim

1. [304]

   On 21 August 2017, Pembroke J held a pre-trial directions hearing in preparation for a final hearing on 4 September 2017. Mr Burke’s counsel informed his Honour that the insurer had not made a decision but, having spoken to MetLife’s senior counsel and, having regard to TAL Life Ltd v Shuetrim, no point was taken about this. However, his Honour considered it necessary for the insurer to have made a decision. Mr Burke’s counsel submitted that they had treated the insurer as having, effectively, constructively denied the claim. MetLife’s senior counsel advised that MetLife had decided some time ago that the matter would proceed as though it was a deemed or constructive refusal. However, MetLife’s senior counsel agreed to address his Honour’s concern.

2. [305]

   On 23 August 2017, MetLife sent a letter notifying Mr Burke of its decision to reject his claim. MetLife accepted that Mr Burke was unable and could not ever return to work with NSW Police, noting his medical discharge on 30 September 2010. MetLife accepted that Mr Burke was unlikely ever to be able to return to work in a role within NSW Police specifically or in a similar environments but the available evidence had not led MetLife to form the opinion that Mr Burke had been incapacitated to such an extent as to render him unlikely ever to engage in any profession, trade or occupation for which is reasonably qualified by reason of his education, training or experience. MetLife considered that Mr Burke was capable of returning to appropriate roles outside NSW Police, noting that Mr Burke was aged 38 at the date of assessment under the policies and was, by the time of the letter, only 47 years of age. MetLife had regard to the transferrable skills identified by Allied Health Assessments as well as Mr Burke’s work as a personal trainer and performing waterproofing in his brother’s business. MetLife relied upon the conclusions of Professor Mattick that the diagnosis of numerous doctors of PTSD was not correct, including by reference to the results from the MMPI-2-RF Validity Scales. MetLife also had regard to the fact that it did not consider the severity and permanence of Mr Burke’s condition to be reflected in the form of any ongoing medication or treatment. MetLife expressed serious reservations with respect to the reliability of the diagnoses and prognoses provided by the various medical attendants whose reports Mr Burke relied upon. MetLife’s five page letter was largely devoted to references to Professor Mattick’s report.

3. [306]

   Mr Burke’s senior counsel is highly critical of this letter, including that MetLife did not refer to Dr Rees’ reports. Whilst there is different judicial views on an insurer’s obligation to give reasons, I favour the view succinctly expressed by Slattery J in MX v FSS Trustee Corporation at [75]:

4. [307]

   On 29 August 2017, a further directions hearing took place before Pembroke J, and MetLife’s senior counsel reported that it had sent a letter formalising its decision. Mr Burke’s counsel advised that, by reason of MetLife’s decision, Mr Burke needed an adjournment of the hearing date on the basis that MetLife’s decision was made without the usual “procedural fairness” letter being sent to Mr Burke and Mr Burke wished to avail himself of the Claims Review Committee established under the policies. If Mr Burke did not succeed before that Committee, then Mr Burke would need to amend his pleading insofar as MetLife’s conduct was said to be unreasonable in “Stage 1”. The application was opposed. His Honour, having already listed the matter for mediation, stood the matter over until the day after the mediation to decide the application to vacate, but indicated that he was minded to grant such an application.

5. [308]

   The mediation on 4 September 2017 was unsuccessful and the matter came before Pembroke J on 5 September 2017 at which time his Honour heard the application to vacate the hearing date. MetLife did not oppose the application. Mr Burke sought an order that MetLife pay the costs thrown away by reason of the vacation, payable forthwith. His Honour reserved costs as there seemed to be responsibility on both sides for what had occurred and for the vacation of the hearing. Ultimately, the matter was re-listed for hearing for Stage 1 on 5 September 2018. On 5 September 2018, Pembroke J recused himself and vacated the separate hearing for Stage 1. His Honour Sackar J listed the matter for hearing on 4 October 2018 before me for both Stage 1 and Stage 2.

6. [309]

   On 22 February 2018, Mr Burke saw Dr Wade who noted that his PTSD remained very active and prescribed a slow-release anti-depressant for Mr Burke, who filled the script.

7. [310]

   In May 2018, MetLife obtained a further report from Professor Mattick as to whether the vocational options identified by Allied Health Assessments were suitable for Mr Burke. Professor Mattick considered that Mr Burke would be able to work in the identified roles. In May and July 2018, photographs were posted by Mr Burke on Facebook showing him on a fishing trip, appearing happy, and on a camping trip with his partner.

Dr Ilana Hepner

1. [311]

   In July 2018, Mr Burke’s solicitors sought a report from Dr Ilana Hepner, clinical neuropsychologist and thus, as I understand Professor Mattick’s first report, a medical professional qualified to administer MMPI-2-RF and interpret its results. Dr Hepner was retained to specifically address Professor Mattick’s testing of Mr Burke and the conclusions he drew. There was no challenge to Dr Hepner’s qualifications, and I need not set them out in detail, save to note that Dr Hepner has worked as a clinical neuropsychologist in the public and private sectors for over 14 years. Her resume does not cite any experience specific to working with people with PTSD. For convenience and attempted brevity, I have, in what follows, interposed any riposte by Professor Mattick in the joint report or conclave to Dr Hepner’s opinions.

2. [312]

   Dr Hepner was briefed with the same material compiled in support of Mr Burke’s claim in June 2016 together with subsequent medical reports served by Professor Mattick, Dr Rees and Dr Diamond. Importantly, Dr Hepner was not provided with any of the contemporaneous records in respect of Mr Burke’s employment with NSW Police which had been reviewed by Professor Mattick, in particular, the MMPI tests done in 1998, 2003, 2005 and 2006, and still had not seen these earlier tests when Dr Hepner gave evidence in a conclave. Necessarily, this limited the utility of Dr Hepner’s report as she was not examining the same material. In respect of the earlier MMPI tests, Dr Hepner opined that it was possible that the findings could have been skewed if Mr Burke was not actively unwell at the time, and pointed to the comments of Dr Rees, Mr Burke and Dr Diamond in this regard. In circumstances where Dr Hepner did not herself have the earlier tests, it was probably not appropriate for her to comment on those test results in the detailed manner in which she did. In respect of the earlier MMPI assessments, Professor Mattick responded that there was no evidence that Mr Burke had symptoms across the whole period from 1998 to April 2006.

3. [313]

   Mr Burke met with Dr Hepner on 26 July 2018, who provided her report on 13 August 2018. Dr Hepner said:

4. [314]

   Dr Hepner pointed to literature which suggests that a patient with a psychiatric diagnosis who accurately reports their symptoms will return scores in the higher (and more suspect) range on the Validity Scales, such that there is a need to compare the results of patients with a psychiatric diagnosis to a control group of patients with similar psychiatric diagnoses rather than the control group of psychologically healthy individuals on which the Validity Scales in MMPI-2 are based. Otherwise, there is significant risk of misclassifying genuine responding as exaggeration of symptoms. Of the Validity Scales, only the Fp-r (Infrequent Psychopathology Responses) validity scale permits such a comparison and has, in the literature, been consistently identified as the most effective to detect symptom exaggeration in respondents with a psychiatric disorder. Mr Burke’s results on this validity scale were in the acceptable range.

5. [315]

   According to the literature, Dr Hepner said that the other validity scales are too susceptible to marked elevations and hence, misdiagnosis of symptom exaggeration in patients with genuine psychiatric disorders such as PTSD. The literature suggests that, in the Fp-r scale, a cut off score for PTSD patients should be above 80, 90 or 100, depending on which article one prefers. As Mr Burke scored 59 on this test, when compared with groups of patients with PTSD, his rate of reporting symptoms was not usually high. Given Mr Burke’s score on this scale, Dr Hepner concluded that it was more likely that his elevated score on the F-r scale was reflective of significant psychological difficulties, which the Manual indicates may explain this high score.

6. [316]

   Professor Mattick replied there are 15,000 papers written on MMPI in academic, medical, psychiatric and psychological journals so, “It’s quite easy to find a reference to support your point of view,” but the Manual suggested that Mr Burke’s results suggested an unusual pattern which rarely occurs in individuals with genuine medical problems. Further, the score of 59 on the Fp-r scale was well above the mean, at the 82nd percentile.

7. [317]

   Nor did Dr Hepner agree with Professor Mattick’s interpretation of Mr Burke’s elevated score on the Fs, FBS-r or RBS validity scales as being inconsistent with an individual suffering from PTSD. Dr Hepner said that such scores on the Validity Scales do not, in and of themselves, rule out the possibility that a patient has a psychological disorder: people with genuine psychiatric disorders may over-report or exaggerate their symptoms for a variety of reasons, but it does not mean that they do not suffer from a psychiatric disorder. Whilst Professor Mattick accepted that a lower score on the Fp-r scale made it less likely that an elevation on the F-r scales reflected over-reporting, he did not agree that an acceptable Fp-r score meant that the over-statement evident on the Infrequent Responses scale was due to psychological disorder, nor did he dismiss the possibility of feigned dysfunction according to the Manual.

8. [318]

   Dr Hepner also criticised Professor Mattick for not including the results for the clinical scales of MMPI-2-RF, which identified a combination of severe anxiety and depression symptoms reflective of significant psychiatric disability and consistent with the effects of PTSD, Major Depressive Disorder and Adjustment Disorder. Professor Mattick did not consider it was necessary to report the results of the clinical scales where over-reporting is present. In those circumstances, interpretation of clinical scales should be avoided.

9. [319]

   Dr Hepner dismissed Professor Mattick’s observations of Mr Burke during his long assessment, noting that Mr Burke had told Dr Diamond that he did not trust Professor Mattick and protected himself by keeping numb as far as he could. I think a professional should not readily dismiss the clinical observation of another professional simply because the patient proffers a self-serving explanation of their behaviour. Professor Mattick said that, unlike Mr Burke’s presentation during their meeting, individuals who are extremely affected by PTSD are obviously symptomatic.

10. [320]

    Dr Hepner herself met with Mr Burke and took a history. In respect of Mr Burke’s efforts to work as a personal trainer, he told her that he had “trained a few of his friends’ partners for free.” This is not consistent with his tax returns. He said, of seeing Professor Mattick,

11. [321]

    Dr Hepner administered the same test as Professor Mattick and some additional tests. Results of the Beck Depression Inventory and Beck Anxiety Inventory indicated severe depression and anxiety, although Professor Mattick said these tests simply required a patient to endorse symptoms such as “I feel sad” without any validity check. The additional tests administered by Dr Hepner were a Test of Memory Malingering (TOMM) and The Rey Complex Figure Test and Recognition Trial (RCFT) but Mr Burke’s results were below the accepted cut off score and, according to Dr Hepner:

12. [322]

    Dr Hepner also administered Trauma Symptom Inventory-2 (TSI-2) which has two validity scales and 12 clinical scales. Neither of the validity scales was elevated, indicating there was neither under-reporting nor over-reporting. Mr Burke’s results were elevated on 10 of the 12 clinical scales and all four of the “factor” scales. Dr Hepner considered that this provided support for PTSD.

13. [323]

    Dr Hepner then administered MMPI-2-RF. The results were, essentially, the same as those obtained by Professor Mattick. Whilst the same four out of five validity scales returned elevated scores, Dr Hepner regarded these results as in keeping with the significant symptoms of emotional distress that Mr Burke had consistently reported for several years. Dr Hepner considered that Mr Burke met the definition for TPD having regard to “overwhelming psychiatric evidence… given the severity and duration of his symptoms, together with his self-reported restricted lifestyle and ongoing psychological distress.” Dr Hepner said it was not possible to exclude some over-reporting of symptoms when the test results were taken together, but this did not exclude the presence of a significant and disabling psychiatric disorder.

14. [324]

    Professor Mattick’s interpretation of the results was consistent with the Manual. Dr Hepner’s approach was, having obtained the same results herself, to explain the results by reference to the psychiatric symptoms and illness referred to in the reports over the previous years. But this is the problem. If the history given by Mr Burke in those earlier reports and the self-reporting of symptoms was inaccurate, then the diagnoses reached in the earlier reports are eroded. The point of the MMPI-2-RF test is to see whether those symptoms self-reported by Mr Burke were likely to be understated or overstated. The test, as administered by both Professor Mattick and Dr Hepner, suggests, according to the Manual, that Mr Burke was overstating his symptoms. Assuming that he also overstated his symptoms in the earlier medical reports, it becomes circular for Dr Hepner to dismiss the elevated scores on the Validity Scales by reference to the historical body of medical reports which were themselves based upon an overstatement of Mr Burke’s symptoms.

15. [325]

    To conclude the evidence of the experts, Professor Mattick did not think that Mr Burke was malingering but, rather, that the stressful and uncertain legal process made him more symptomatic, and those symptoms would likely improve once the litigation was completed. Professor Mattick considered that Mr Burke was probably anxious and unhappy and could be depressed at times with the uncertainty of the litigation, and probably does have memories of police service,

16. [326]

    Professor Mattick said:

17. [327]

    Overall, I preferred the approach, analysis and conclusions of Professor Mattick as based on significant experience in working with PTSD patients, Mr Burke’s clinical presentation, a detailed review of contemporaneous records and earlier MMPI tests and a well-articulated scientific method.

The hearing

1. [328]

   As earlier mentioned, over seven days I heard evidence from Mr Burke, Dr Hepner and Professor Mattick and received 11 folders of documentary evidence, all of which I have described. At the close of the plaintiff’s case, Mr Burke was given leave to read the affidavits of a number of other witnesses. Amongst those was an affidavit of Graeme Olsen who attended the Hornsby siege. Some 22 years after the event, Mr Olsen gives an extremely detailed account of the incident. As Mr Olsen and Mr Burke were on top of the front fence, Mr Olsen saw the front flyscreen door to the house swivel open and a male running out towards them with a rifle. He ran towards them, raised the rifle and pointed it directly at them. He was a few meters away.

2. [329]

   I note that, 22 years after the event, Mr Olsen was able to recall the precise words attributed to the Person of Interest as recorded in the COPS report of 16 December 1996, although he does not say that he referred to the COPS report to refresh his memory before swearing the affidavit nor attach the COPS report to this affidavit. I attach little weight to Mr Olsen’s evidence.

3. [330]

   An affidavit of Carey MacDonald was also read. Ms MacDonald was Mr Burke’s first wife. She deposed that she arranged for Mr Burke to see her general practitioner, Dr Schulze, as she was worried about him. She asked him to leave the police force as she was concerned that his work was causing him problems with depression and drinking. I accept her evidence. Mr Burke’s current partner, Ms Brand, also swore an affidavit as to their fishing, camping and travel activities. Ms Brand said that, on a trip to Japan in September 2018, Mr Burke behaved in an erratic way and became abusive on two occasions. I accept her evidence.

4. [331]

   It seems to me that MetLife’s process of considering Mr Burke’s claim was fair and reasonable.

5. [332]

   MetLife obtained information from Mr Burke, including by completion of Activity Statements and a Vocational Questionnaire, as well as Mr Burke’s tax returns. MetLife obtained records of Mr Burke’s leave from NSW Police. MetLife obtained medical reports from Mr Burke’s treating psychologist and psychiatrist, Mr Peters and Dr Wade. MetLife obtained reports from non-treating medical professionals, Dr Rees and Professor Mattick. MetLife sought comment from doctors on the comments of other doctors: from Dr Wade on Dr Rees’ report; from Dr Rees on Professor Mattick’s report.

6. [333]

   MetLife obtained publicly available material as well as information from another insurer, Allianz, who had received claims from Mr Burke for the same injury. MetLife retained, as it was entitled to do, an investigator to see whether Mr Burke’s activities corresponded with his self-reporting of PTSD symptoms to the doctors who he saw. MetLife sought comment from Mr Burke and his treating psychologist on potentially adverse material such as Facebook posts.

7. [334]

   MetLife sought to ascertain whether the events said to have given rise to the PTSD were as described by Mr Burke or not, by obtaining records from NSW Police in respect of his career with the Force, including his disciplinary history. It was reasonable to do so as the psychological injury said to prevent Mr Burke from working again depended upon satisfaction of the clinical prerequisite to that condition, being exposure to actual or threatened death or serious injury. If Mr Burke’s condition was caused by NSW Police’s disciplinary actions, then PTSD was unlikely to be the correct diagnosis.

8. [335]

   MetLife’s process produced material which included:

9. [336]

   There were a significant number of medical reports, most of which supported Mr Burke’s claim, including some obtained by NSW Police, Allianz and MetLife. Most were heavily dependent on the history narrated by Mr Burke, which was materially inaccurate, and Mr Burke’s self-reporting of his symptoms. The approach which MetLife was entitled to take to competing medical reports was well described by Parker J in Newling at [185] to [186]:

10. [337]

    In Newling, as here, NSW Police was sceptical of the officer’s claims. His Honour noted it was not necessary for MetLife, or the Court, to get to the bottom of whether the scepticism was justified. It was reasonably open to MetLife to obtain an expert medical opinion which addressed the TPD policy issues and, having done so, it was under no obligation to give decisive weight to an earlier doctor’s report obtained by NSW Police to the contrary: at [192].

11. [338]

    Likewise here, MetLife was not obliged to accept the majority view in the medical reports, nor accept Dr Rees over Professor Mattick. I consider it was fair and reasonable for MetLife to prefer the report of Professor Mattick, which considered the contemporaneous records and earlier MMPI-2 tests of Mr Burke’s psychological condition, together with his own lengthy clinical assessment and MMPI-2-RF test results interpreted in accordance with the Manual. Professor Mattick’s report was comprehensive, reasoned and rigorous.

12. [339]

    MetLife had available to it a report which identified the transferrable skills of a Senior Constable in NSW Police and a Desktop Vocational Assessment report which identified several suitable roles for Mr Burke which were generally available in his local area. There was no evidence that Mr Burke could not work apart from Mr Burke’s evidence that he could not, nor any objective evidence that he had tried to work but failed. Again, as Parker J noted in Newling at [222] to [223]:

13. [340]

    There was information before MetLife at the time it made its decision that Mr Burke was trained to be a personal trainer and had worked as such already, as evidenced by his tax returns. There was evidence that Mr Burke had also worked part-time in his brother’s business as a waterproofer and had given consideration to re-training in that field.

14. [341]

    I consider that it was reasonable for MetLife to conclude that Mr Burke was not incapacitated to such an extent as to render him unlikely ever to engage in or work for reward in any occupation or work for which he was reasonably qualified by reason of education, training or experience. It is harder for relatively younger people, whose medical or psychological condition is uncertain, to satisfy the definition of TPD: Shuetrim at [208]. This is a factor here, as Mr Burke was only 40 at the date of assessment under the policies. I note that a person who can undertake part-time work is not totally and permanently disabled: Hannover Life Re of Australasia Ltd v Dargan (2013) 83 NSWLR 246; [2013] NSWCA 57; Shuetrim at [67]. I conclude that MetLife was not in breach of its obligations under the policies. Its decision was fair and reasonable, and stands.

15. [342]

    Were it necessary to do so, I would also conclude that Mr Burke is not TPD within the meaning of the policies having regard to the facts as I have found them to be. These facts depart in significant respects from Mr Burke’s evidence of the traumatic events said to give rise to PTSD and how those events affected him over time.

16. [343]

    I do accept that Mr Burke has suffered many stressful and traumatic events during his career with NSW Police. Amongst those was the Hornsby siege in December 1996 which caused post-traumatic stress such that his wife made him seek medical attention and he was diagnosed, albeit probably without the necessary qualifications or adequate assessment, as having PTSD. But the contemporaneous medical reports of Dr Maclean and Ms Fisher, and Mr Burke’s self-reporting at the time, indicate that Mr Burke recovered from post-traumatic stress by, at least, 1998, which is consistent with the usual pattern of recovery and confirmed by psychological assessment and tests conducted in 1998, 2003, 2005 and 2006. Mr Burke omitted reference to PTSD in several forms from 2003 to 2009 where he might have been expected to disclose that he had previously been diagnosed with PTSD, which indicates to me that he had recovered such that he had forgotten about that diagnosis or that he had claimed and received workers’ compensation for it.

17. [344]

    By 2005, whatever PTSD Mr Burke had suffered by reason of Hornsby siege, had resolved some years earlier. Mr Burke was then involved in a fracas at a bar in 2005. NSW Police investigated the matter, including arresting and interviewing Mr Burke on two occasions. These events, while no doubt extremely stressful, are not “exposure to actual or threatened death or serious injury”. Mr Burke received CBT counselling from Mr Peters from 2007 on in respect of the distress and anxiety suffered as a consequence of NSW Police’s investigation. Mr Burke appears to have improved as a result of the counselling, according to Mr Peters’ file notes, and was “in remission” by October 2009. It may be that the arrests exacerbated an underlying psychological condition, but the exacerbation abated by late 2009.

18. [345]

    Mr Burke continued to serve as a police officer from February 2008 to September 2008. When it became apparent that Mr Burke’s career with NSW Police was over, Mr Burke sensibly took steps to embark on a new career. He worked in his brother’s waterproofing business and set up a personal training business. Mr Burke’s treating psychologist, Mr Peters, considered that Mr Burke was able to work in these fields. The reason why Mr Burke stopped being a fitness trainer was because NSW Police said he couldn’t engage in secondary employment anymore, not because Mr Burke felt he couldn’t do it.

19. [346]

    Having reviewed all of the medical reports, I consider that Mr Briggs’ assessments in 2007 and 2009 were correct when made. I prefer the expert evidence of Professor Mattick to that of Dr Hepner and Dr Rees. Professor Mattick grappled with the apparently difficult task of departing from a trend of diagnoses and forming one’s own. Whilst Professor Mattick and Dr Hepner both accepted that Mr Burke may have an underlying psychological condition, I do not think Mr Burke has chronic PTSD such that he fulfils the definition of TPD in MetLife’s policies.

20. [347]

    I was informed that the only relevant and participating defendant in these proceedings is MetLife. For these reasons, I make the following orders:

    1. (1)

       The plaintiff’s claim is dismissed.

    2. (2)

       Plaintiff to pay the Second Defendant’s costs.