Sandstrom v FSS Trustee Corporation & Anor

1. [1]

   The plaintiff, Rebecca Sandstrom, joined the NSW Police Force (“the police”) in 2005 at the age of 22. After completing her initial police recruit training at Goulburn Police Academy, she was stationed within the Bankstown Local Area Command (“LAC”), including a period in the Intelligence Response Team (“IRT”) at that Command. Throughout her service, and especially from 2007 to 2010 Ms Sandstrom claims that she was exposed to a series of confronting scenes of death, body dismemberment and grievous personal injury. She says that as a result of this exposure she began to suffer post-traumatic stress disorder (“PTSD”) and related psychiatric disorders.

2. [2]

   On 8 September 2010 a police colleague of Ms Sandstrom, Detective Senior Constable William Crews, was fatally shot by another police officer during the execution of a search warrant in Bankstown. In circumstances which were initially in contest in the proceedings, Ms Sandstrom was close to the scene where Senior Constable William Crews was killed. Following the shooting, Ms Sandstrom attended the Liverpool Hospital, where she saw his grievously wounded and disfigured body.

3. [3]

   Ms Sandstrom contends that these events either initiated or cumulatively aggravated her PTSD symptoms to the extent they became chronic. She claims that the earlier disturbing events during her police career compounded the effect upon her of this final traumatic incident on 8 September 2010. She was placed on sick leave that same day, on 8 September 2010. She never returned to active duties with the police.

4. [4]

   Ten months after the shooting of Senior Constable William Crews, on 7 July 2011, and after medical assessment, Ms Sandstrom was medically discharged from the police, due to the psychological symptoms from which she was suffering. She has not been in paid employment since that date.

5. [5]

   On 1 August 2011, Ms Sandstrom made a claim against FSS Trustee Corporation (“FSS”), the first defendant, for payment of insurance benefits. Since joining the police Ms Sandstrom had been a member of the NSW First State Superannuation Scheme (“the FSS Scheme”), of which FSS was the trustee. She was also an insured member of that scheme under two policies effected by FSS with the second defendant, Metlife Insurance Limited (“Metlife”). The two policies, the FSS Group Life Insurance Policy (“the FSS Policy”) and the Police Blue Ribbon Insurance Policy (“the PBRI Policy”), provided TPD benefits on similar terms.

6. [6]

   Ms Sandstrom claimed benefits under both policies on the basis that at the relevant date for assessment, 9 March 2011 (being six months after being absent from her police work due to injury or illness) she was totally and permanently disabled (“TPD”). Her claim was founded on her PTSD and related psychological conditions. It is not in issue that if Ms Sandstrom were to be successful in her claim, the capital benefits payable to her under the FSS Policy would be $170,100 and the benefits payable to her under the PBRI Policy would be $582,718.

7. [7]

   Metlife declined Ms Sandstrom’s claim on 24 July 2015. But for reasons that will be explained, her case is sometimes framed on the basis that her claim was declined in a letter sent on 23 June 2015. She commenced these proceedings by Statement of Claim against FSS and MetLife on 7 October 2015. The defences of each of FSS and MetLife were filed by mid-2016. But Ms Sandstrom discontinued proceedings against FSS in September 2017. The only major pre-trial contest, was one concerning the production of records concerning her Facebook account. This contest was determined in September 2017 with orders that she produce the material in question, which was extensively used during the trial.

8. [8]

   The issues for determination are: (1) whether MetLife’s decision to decline Ms Sandstrom’s claim should be set aside on the basis that it failed to act with the utmost good faith in dealing with Ms Sandstrom’s claim or failed to act reasonably in forming an opinion as to whether Ms Sandstrom qualified as TPD under MetLife’s policy; and if MetLife did so fail, (2) whether upon a fresh assessment by this Court Ms Sandstrom now satisfies the TPD definition under Metlife’s two policies, the FSS Policy and the PBRI Policy.

9. [9]

   Ms Sandstrom contends that Metlife breached its duty of utmost good faith in dealing with her claim and that it failed to act reasonably in forming an opinion that she was TPD; and that the Court can now set aside MetLife’s 24 July 2015 decision and reassess her claim, to see whether she satisfies the criteria for TPD benefits at the relevant date for assessment. She alleges that the symptoms of her PTSD condition prevent her from returning to employment for the rest of her probable working life.

10. [10]

    Metlife contends that it declined liability for Ms Sandstrom’s claim and acted with the utmost good faith and reasonably in forming an opinion that it was not satisfied that she was not TPD under the terms of its policies and that its decision to decline her claim should not be set aside. Alternatively, Metlife contends that if the Court were to set aside its 24 July 2015 decision and re-assess her now, the medical evidence does not support Ms Sandstrom’s assertion that she is “unlikely ever” to engage in or work for reward in any occupation or work for which she is reasonably qualified by reason of education, training or experience”. And Metlife claims that, as Ms Sandstrom was only 27 at the relevant date that her claim should be assessed under the policies, it could not (and now the Court cannot) conclude on the medical evidence that Ms Sandstrom would be incapable of returning to suitable employment until her probable retirement age.

11. [11]

    Ms Sandstrom now seeks by her statement of claim: (1) a declaration that she is TPD within the meaning of the First State Superannuation Scheme Trust Deed and Rules, and within the meaning of the FSS Policy and the PBRI Policy; and (2) a declaration that Metlife’s determination of her non-entitlement to a benefit is void and of no effect; (3) an order that Metlife pay to FSS to hold on trust for her the claimed benefit, together with interest; and (4) an order that the defendants pay her costs. MetLife resists all this relief.

12. [12]

    These reasons are divided into two main parts. The first part, Stage I, deals with the validity of MetLife’s decision of 24 July 2015, to decline Ms Sandstrom’s claim under both the FSS Policy in the PBRI Policy. Stage I is essentially concerned with whether MetLife’s decision-making about her TPD status conformed with the standards that are required of it under its two contracts of insurance with FSS. Stage II of these reasons is only reached if the Court were to find that MetLife’s decision should be vitiated as a result of consideration under Stage I.

13. [13]

    The Court concludes in Stage I that MetLife’s 24 July 2015 decision should be set aside. The Court therefore considers in Stage II Ms Sandstrom’s TPD status as at the relevant assessment date, 9 March 2011. In its consideration of Stage II, the law permits the Court to place itself in the position of the decision maker under each policy, and to evaluate whether or not Ms Sandstrom is TPD within the policies. The Court does so in Stage II and finds that she was TPD, as at the relevant date for assessment.

14. [14]

    These proceedings were conducted over nine hearing days between 16 and 23 April 2018, 16 May, 18 October and 8 November 2018. At all times the plaintiff was represented by Mr D Baran and Mr M Eirth of Counsel instructed by Mr George Draca of Norwest Lawyers. At all times the defendant was represented by Mr G Watson SC and Mr C Purdy of Counsel instructed by Mr Matthew Harding of HWL Ebsworth Lawyers. The proceedings had considerable legal and factual complexity. The Court received excellent assistance from counsel and solicitors on both sides.

Stage I: Did MetLife Validly Decline the Plaintiff’s Claim?

1. [15]

   This section of these reasons deals with the validity of MetLife’s decision of 24 July 2015, declining Ms Sandstrom’s claim. It commences by setting out the relevant terms of the FSS Policy and the PBRI Policy, followed by a statement of the legal principles that apply to judging whether or not MetLife’s decision not to accept Ms Sandstrom’s claim was validly made. Finally, this section applies those principles to MetLife’s 24 July 2015 decision.

2. [16]

   FSS took out the FSS Policy and the PBRI Policy with MetLife pursuant to clause 11 of the Rules of the FSS Scheme (“the Rules”), which permits FSS to acquire policies “to provide insured benefits for members”: Rules, clause 11.1. The “insured benefit” of a member is “only payable to the extent that [FSS] receives payment from the insurer under an insurance policy”: Rules, clause 11.2(b).

3. [17]

   Clause 11.2(b) means that Ms Sandstrom’s entitlement to benefit as a member of the FSS Scheme does not depend on FSS, but rather upon MetLife making a payment to FSS. These proceedings therefore involved no consideration of FSS’s duty to form an opinion about Ms Sandstrom’s TPD status, and the proceedings against FSS have been discontinued.

4. [18]

   It is accepted on all sides that if Ms Sandstrom is successful that any insurance benefit payable on her account will be paid to FSS to be held on trust for her under the Rules of the FSS Scheme.

5. [19]

   Only a few terms of the FSS Policy and the PBRI Policy are relevant. The central clause in each policy is in a form commonly used by insurers offering TPD insurance.

6. [20]

   In the FSS Policy, the definition of TPD is in the following terms:

7. [21]

   The critical words in this TPD definition, which occasion dispute about the quality of MetLife’s decision and ultimately about Ms Sandstrom’s future working capacity are “unlikely ever to engage in or work for reward in any occupation or work for which he or she is reasonably qualified by reason of education training or experience”. Because of its use of the expression “reasonably qualified by reason of education training or experience”, such a clause is commonly referred to as an “ETE clause”. And that part of the TPD definition will be referred to in this way throughout these reasons. But at times the analysis is more focused on the words “unlikely ever” and for convenience this part of the TPD definition will often be condensed in these reasons into the words “unlikely ever to engage in relevant work”.

8. [22]

   There is no dispute in these proceedings that Ms Sandstrom is a “Covered Person” within the FSS Policy and was relevantly employed “for at least the Minimum Hours [as defined]”. Nor is there any issue that she was absent from her “Occupation” [as defined] “through Injury or illness” for the requisite period of six months, so as to qualify under the first limb of the FSS Policy. In her case this consecutive six-month period was between 8 September 2010 and 9 March 2011.

9. [23]

   Under the FSS Policy, upon a Covered Person such as Ms Sandstrom, being found TPD, a TPD Benefit is payable to the policy owner, FSS, in respect of that Covered Person: clause 7.1. As earlier indicated, the agreed amount to be paid in respect of Ms Sandstrom under this policy, were she to be found TPD, was $170,100.

10. [24]

    A clause defining TPD in the PBRI Policy is repeated in relevantly indistinguishable wording from the FSS Policy, as follows:

11. [25]

    There is no dispute that for the purposes of the PBRI Policy Ms Sandstrom is an “Insured Member” and that her “Normal Hours” qualified her. Nor is there any dispute that a relevant “Insured Event” has occurred. An “Insured Event” in the PBRI Policy means an “illness (including sickness, disease or disorder) suffered, or bodily injury occurring, to a Police Officer [as defined] while an Insured Member.”

12. [26]

    MetLife agreed under the PBRI Policy (clause 3) to pay to the Policy Owner, FSS, the Sum Insured in respect of the Insured Member if the Insured Member “suffers TPD”. As earlier indicated, the parties agreed that the sum payable in respect of Ms Sandstrom under the PBRI Policy would, if she were established to be TPD, the sum of $582,718.

13. [27]

    Ms Sandstrom must bring herself within these respective wordings in order to succeed in her claim to be TPD under the FSS Policy and the PBRI Policy. On 24 July 2015, MetLife made a decision about whether or not “proof to our satisfaction” had taken place under the ETE clauses in both these policies. In this first stage of these reasons (Stage I) the Court examines whether or not MetLife, as a decision-maker under this part of the TPD definition, has conformed with the decision-making duties applicable to it. In order to assess whether MetLife has complied with those duties it is first necessary to state the legal principles that apply to its decision-making.

14. [28]

    The law defining the scope of the duties of decision-makers dealing with claims by members of superannuation funds for whom the trustee has obtained TPD insurance cover is well established. That law and the corresponding rights of members against the funds and against the insurers providing TPD cover may be shortly stated.

15. [29]

    The Member’s Standing to Sue. A member of a superannuation fund for whom the trustee has obtained insurance cover has standing to seek an order that the insurer pay the trustee the amount due to the trustee under the insurance contract: Erzurumlu v Kellogg Superannuation Pty Ltd [2013] NSWSC 1115 (“Erzurumlu”) at [54]. The member has standing to bring a claim both under the Deed against the trustee and under the Policy against the insurer: Wyllie v National Mutual Life Association of Australasia Ltd (1997) 217 ALR 324 (“Wyllie”), at 337 to 338.

16. [30]

    The Trustee’s Decision-Making Duties. FSS’s decision-making as trustee is not challenged in this case. But some of the duties that lie upon it are relevant. In making its determination, a trustee has a duty to apply a trust fund, such as the Fund, in accordance with the trust deed, in this case the Deed: Finch v Telstra Super Pty Ltd [2010] HCA 36; (2008) 242 CLR 254 (“Finch”) at [30] ff. It is also required to act in good faith, on a real and genuine consideration of the material before it, for the purpose for which it was conferred, for sound reasons where the trustee has disclosed reasons, although the trustee is not obliged to give reasons for its decision: Hannover Life Re of Australasia Ltd v Sayseng [2005] 13 ANZ Ins Cas 90-123 (“Sayseng”) at [32] ff (per Santow JA).

17. [31]

    The general rule where a trustee has failed to discharge its duties in considering a member’s claim is to refer the matter back to the trustee for reconsideration: Sayseng at [33]. But if the Court vitiates an insurer’s decision upon breach of an insurer’s duty of utmost good faith and embarks on a second stage inquiry, and on that inquiry finds that the plaintiff is TPD within the policy definition, there may be no further work for the trustee to perform and no need to remit the matter to the trustee for further consideration and it can be dealt with by the Court: Jones v United Super Pty Ltd [2016] ANZ Ins Cas 62-126 (“Jones v United Super Pty Ltd”) at [112].

18. [32]

    This statement of applicable principles now deals with the duties on insurers in the position of MetLife.

19. [33]

    The Insurer’s Duty of Utmost Good Faith. An insurer dealing with a claim against it owes an insured a duty of utmost good faith, sometimes also described as a duty of good faith and fair dealing: Sayseng at [36]. The duty of utmost good faith does not impose obligations in the abstract; it depends on the contractual rights and obligations of the parties in relation to the claim; and it imposes an obligation on the insurer to exercise its rights and discharge its obligations as conferred by the contract of insurance with the utmost good faith: Ziogos v FSS Trustee Corporation as Trustee of the First State Superannuation Scheme [2015] NSWSC 1385 (“Ziogos”) at [66].

20. [34]

    The insurer’s obligation of utmost good faith is contractual not fiduciary. Conduct which would not be permissible in a fiduciary relationship will not necessarily infringe the duties of good faith and fair dealing, as the fiduciary relationship is one in which the parties are not free to pursue their separate interests: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed, 2014, LexisNexis Butterworths) (“Meagher, Gummow & Lehane”) at [5-005].

21. [35]

    Some common practical examples of the discharge of the obligation of good faith and fair dealing assist in understanding its scope. The obligation may, in appropriate circumstances, require an obvious enquiry to be made: Halloran v Hardwood Nominees Pty Ltd [2007] NSWSC 913 (“Halloran”) at [38]. It is important to correlate the activities that an insured is capable of undertaking, as for example activities that are demonstrated in video surveillance material, to the activities the insured is required to undertake in employment: Ziogos at [103].

22. [36]

    The Duty to Form an Opinion. Under a contract for insurance, if an element of insurance liability is expressed in terms of the satisfaction, or opinion, of the insurer, the insurer is obliged to act reasonably in considering and determining that matter: Edwards v Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113 (“Edwards”) and Sayseng at [47]. In Edwards (at 77,536) McLelland J stated with respect to clauses such as that in issue in this case, that there was an implied obligation on the insurer to consider and determine whether it should form the relevant opinion, which involved a consideration and determination of the correct question; and in the exercise of powers affecting the interest of both itself and the claimant the insurer was under a duty of good faith and fair dealing requiring it to have due regard to the interest of the claimant. McLelland J’s statement of the law was, once more, adopted with approval by the Court of Appeal in Hannover Life Re of Australasia Ltd v Jones [2017] 19 ANZ Ins Cas 62-149 (“Jones”).

23. [37]

    Jones also approved (at [82] – [85]) Brereton J’s statement at first instance in Jones v United Super Pty Ltd at [55] that the insurer’s decision will also be liable to be reviewed and avoided by the Court if in forming an opinion (about a claimant’s disability) the insurer: (1) misdirects itself in law, that is to say asks itself the wrong question; or (2) takes into account an irrelevant consideration or fails to take into account a relevant consideration.

24. [38]

    And Jones explains how concepts of reasonableness are to be applied in forming an opinion about a claimant’s level of disability. Analogies exist between the judicial review cases, in which unreasonableness is assessed in the sense described in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (“Wednesbury”) at 234, and the implied term of reasonableness in contracts of insurance, where the formation of the insurer’s opinion is a condition of the insurer’s liability. But the analogy is not so close as to require the adoption of the stringent test of unreasonableness in the Wednesbury sense in the insurance contract cases: Jones at [121]. Rather the criterion of reasonableness of an insurer’s decision is “whether the opinion formed by the insurer was not open to an insurer’s acting reasonably and fairly in consideration of the claim”: Jones at [121]. And the insurer’s assessment of reasonableness is not made by reference to entirely objective criteria but must be unreasonable on the material then before the insurer: Jones at [94]. Nor does the assessment of reasonableness require the Court to undertake a review of the merits of the insurer’s decision: Jones at [93] and [99].

25. [39]

    In Jones (at [65]) the Court of Appeal adopted McLelland J’s remarks in Edwards, as to the Court’s task in deciding whether the insurer was entitled to form the opinion which it did:

26. [40]

    If the view taken by the insurer is shown to have been unreasonable on the material before it, then the decision can be successfully attacked: Sayseng (at [36]) and Jones (at [67] and [94]). The Court must not substitute its own view for that of the insurer by reference to additional material not before the insurer: Sayseng (at [54]) and Jones (at [68]).

27. [41]

    The insurer’s duty of utmost good faith in dealing with a claim and the duty to act reasonably in forming an opinion may be compared and contrasted. The duty of utmost good faith: (a) is broader than the implied term obliging the insurer to act reasonably and applies to all aspects of the claims handling process: Ziogos at [68] and Jones at [71]; (b) does not imply a higher or stricter standard than the implied term requiring the insurer to act reasonably in considering and determining the matter: Ziogos at [69]; (c) is not to be equated with the implied obligation to act reasonably in forming an opinion concerning or being satisfied about a particular matter; nor are the two standards the same: Ziogos at [73], commenting on CGU Insurance Ltd v AMP Financial Planning Pty Ltd [2007] HCA 36; (2007) 235 CLR 1; and (d) requires the insurer to form the opinion itself and to act with the utmost good faith in doing so and it is not sufficient that some other insurer acting reasonably could have reached the conclusion that it did: Ziogos at [74].

28. [42]

    And there is a distinction between acting reasonably in the formation of an opinion and the formation of a reasonable opinion. As Gleeson JA explained in MetLife Insurance Ltd v MX [2019] NSWCA 228 (“MX”), at [79]:

29. [43]

    This was further explained in MetLife Insurance Ltd v Hellessey [2018] NSWCA 307 at [8] (Meagher JA, McColl and White JJA agreeing):

30. [44]

    Some authorities have used other words to describe the obligation to act reasonably in forming an opinion. Nicholas J’s description of the obligation is useful: as one which requires the decision-maker to give an objective even-handed and realistic consideration to the whole of the evidence, uninfluenced by personal beliefs, prejudice, suspicion, or speculation: Savelberg v United Super Pty Ltd [2011] NSWSC 1482 at [13]. In accordance with authority, “objective” in Nicholas J’s formulation should be taken to mean “unbiased from the perspective of the decision-maker” and not to invite an assessment of a hypothetical claimant or a decision divorced from the actual material before the decision-maker.

31. [45]

    The Duty to Give Reasons. It follows from the requirement that the insurer must itself form an opinion acting in accordance with its duty of utmost good faith, that the insurer should give reasons for its decision. As Ball J explained in Ziogos at [75]:

32. [46]

    But an insurer is not required to undertake the detailed consideration of a claim required at a court hearing: Chammas v Harwood Nominees (1993) 7 ANZ Ins Cas 61-175 (“Chammas”) and Weber v Tiss Pty Ltd [2005] NSWSC 67 at [8], (“Weber”). An insurer’s statement of reasons for declining a claim should be understood as a practical document intended to inform the claimant of the basis of the decision rather than providing detailed reasons with reference to the evidence being relied upon, comparable to a judgment of a court or tribunal: Weber at [8].

33. [47]

    In MX at [153] – [155], Gleeson JA considered that there may be little difference between the statement in Ziogos (at [75]) and the statement of Parker J in Newling v FSS Trustee Corporation (No 2) [2018] NSWSC 1405 to the effect that there should be an explanation of “the actual path of reasoning” by which the conclusion was arrived at. Gleeson JA also observed in MX (at [155]), “the insurer’s reasons had evidentiary significance as to whether the insurer’s process of consideration of the respondent’s claim was undertaken fairly and reasonably”.

34. [48]

    The Use of Expert Evidence. Expert evidence was deployed on both sides in this case. Some of it was before MetLife at the time of its decision. This circumstance adds additional content to the applicable duties in the consideration and determination of this claim. The following additional statements of principle are relevant where experts are involved. If the insurer seeks an opinion from an expert, it must provide the expert with all the information relevant to the expert’s opinion; the expert must be asked the right questions; but asking the right questions of the expert does not require the insurer to ask the expert to address specific provisions in the policy, as the insurer is making the ultimate decision and not delegating it: Lazarevic v United Super Pty Ltd [2014] 18 ANZ Ins Cas 62-039 (“Lazarevic”) at [101]. Experts and the insurers who rely upon them should attend to evidence relating to the individual insured and the insured’s characteristics rather than to general statements of hope or expectation about the circumstances or conduct of anyone suffering from the condition in question: Ziogos at [102]. Where an expert’s opinion about an insured’s circumstances or capacity for employment depends upon an assumption, it may be impermissible for the insurer to rely upon the expert’s opinion as to that matter unless the assumption is verified: see for example Ziogos at [103].

35. [49]

    The Consequences of Non-Compliance. If the insurer does not comply with its duty of utmost good faith the Court may itself determine the question whether the insured suffered from TPD: Sayseng at [36](e), Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2015] NSWLR 412 at [25] and Jones at [67].

36. [50]

    But the reasonableness of MetLife’s decision here depends in part upon the operation of the ETE clause in the two policies. The authorities on that topic are considered next.

37. [51]

    ETE clause policy wordings similar to those in the FSS Policy and the PBRI Policy have received extensive judicial consideration both at first instance and on appeal.

38. [52]

    From those cases statements of applicable principle can be refined. In the Court of Appeal’s decision in Jones (at [147] – [150]) Gleeson JA considered Brereton J’s elucidation of the meaning of an ETE clause close to the one under consideration in this case. The effect of the Court of Appeal’s decision in Jones was to approve Brereton J’s comprehensive statement at first instance in that case (Jones v United Super Pty Ltd at [71] – [72]) of the proper interpretation of the ETE clause, which is set out here in full:

39. [53]

    In the ETE clause the word “by” in the phrase “reasonably fitted by education, training or experience” expresses the notion of a link or connection between the suggested future work and the insured’s past, education, training and experience”: Jones at [146] citing Wardley Australia Limited v the State of Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 525.

40. [54]

    “Unlikely Ever” to Engage in Work for Reward. The words “unlikely ever” in this group of words have been closely considered. The word “unlikely” in the formulation was once said to mean improbable in the sense of a less than 50 per cent chance: Halloran at [76] and Beverly v Tyndall Life Insurance Co Ltd [1999] WASCA 98; (1999) 21 WAR 327 at 32.

41. [55]

    But TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] 332 ALR 507 (“Shuetrim”) now expresses the most authoritative exposition of these words that binds a trial judge in this State. In that case Leeming JA (at [88] – [89]) cautioned against the illusion of mathematical precision in the application of the term, as follows:

42. [56]

    As Leeming JA put it here in Shuetrim “the critical distinction is between possibilities that are readily contemplatable even though they may not be more probable than not, and possibilities which are remote or speculative”. The issue has also been stated as whether it is unlikely that the insured would actually obtain paid employment for which the insured was qualified by education, training or experience, not whether in theory the insured may obtain employment of that type: Halloran at [76]; Banovic v United Super Pty Ltd [2014] NSWSC 1470 and Lazarevic at [108]-[109].

43. [57]

    The distinction between possibilities that are “readily contemplatable” and those that are “remote or speculative” may be a fine one, as Leeming JA explained in Shuetrim (at [113]). Just how fine that can be is illustrated by Leeming JA’s reasoning in Shuetrim (at [110] and [111]):

44. [58]

    The words “unlikely ever” presents special challenge for a claimant as young as Ms Sandstrom, who was barely 28 at the assessment date. As Leeming JA explained in Shuetrim (at [208]):

45. [59]

    The relative youth of a claimant though obviously relevant to an insurer’s consideration, comes with recognised risks of error. As Ball J pointed out in Ziogos (at 102]), when an insurer reaches the view that a claimant “would be able to return to work because she had so many working years of her life” it is important not to confuse “what was possible with what was likely and unlikely”.

46. [60]

    “Regular Remuneration Work”. The two MetLife policies do not contain a definition of “Regular Remuneration Work”, as that expression appears in some TPD policies. The wording in the FSS Policy and the PBRI Policy is that the Insured Member is “unlikely ever to engage in any gainful profession, trade or occupation”. In my opinion to “engage in any gainful profession, trade or occupation” is a similar concept to undertaking regular remunerative work. It is difficult to see how one could “engage in” a “gainful profession, trade or occupation” without doing something that closely approximates regular remunerative work in that profession. Therefore, the case law in relation to “Regular Remuneration Work” has some relevance to a case such as this, although it should only be viewed cautiously as it is clearly not decisive in this case, because the precise policy wording is different.

47. [61]

    Looking at that case law, the capacity to perform “Regular Remuneration Work” is different from the capacity to perform a particular work task; and it does not follow that because a person is physically capable of performing one or more work tasks, that the person has an ability to engage in regular remunerative work: Hannover Life Re of Australasia Ltd v Colella (2014) 47 VR 1; VSCA 205 (“Colella”) and Jones v United Super Pty Ltd at [77].

48. [62]

    A person can be reasonably fitted for “Regular Remuneration Work” by reason of education, or training, or experience, or a combination of those factors: Hannover Life Re of Australasia Ltd v Dargan (2013) 83 NSWLR 246; [2013] NSWCA 57 (“Dargan”). A claimant may require further training to pursue another occupation after the termination of his employment, leading to the assessment of whether the claimant was TPD. The fact that some further training may be required, does not preclude a conclusion that the claimant was reasonably fitted to carry out the further occupation: Dargan at [44]. In Dargan, for example, a heavy vehicle driver had already obtained a certificate to become a taxi driver and only needed to pass a subsequent week long course to ensure that he was able to retain that certificate: Dargan at [40]. He was found not to be TPD. But in Halloran the claimant had ceased to be employed in a role of greasing machinery and in the three years after leaving that employment he completed a TAFE course qualifying him for white collar work. Brereton J held in Halloran that at the time of suffering his injury the claimant was not qualified for that work “by reason of his education, training and experience”: Halloran at [35] and Dargan at [40] – [41].

49. [63]

    Dargan also decides (at [46]) that even part-time work may qualify as Regular Remuneration Work but casual work or other work of an intermittent nature would not qualify as Regular Remuneration Work. Bathurst CJ said in Dargan at [46]:

50. [64]

    The Time to Determine TPD Status. The time at which a claimant suffers TPD is capable of a general answer, which was discussed by Ball J in Ziogos at [86] as follows:

51. [65]

    W.I.B. Enright and R.M. Merkin also argue that the “as at” date, or date for assessment to determine TPD status, is the expiration of the applicable qualifying period as the relevant date: Sutton on Insurance Law (4th ed, Thomson Reuters, 2014, Volume 2) at [21.430]. The parties conducted this case on the basis that the “as at” date was 9 March 2011, the expiry of the qualifying period, being six months after Ms Sandstrom commenced being absent from her employment with the police. But for reasons which will become clear in Stage II, if the “as at” date is the date of the insurer declining Ms Sandstrom’s claim, 24 July 2015, it is difficult to see how the Court’s consideration of Ms Sandstrom’s claim would produce a different result.

52. [66]

    The Use of Subsequent Medical and Other Evidence. It is not uncommon in the consideration of TPD claims for a party to contend that medical and other expert opinions expressed subsequent to the date upon which the insurer is required to assess whether or not a claimant is TPD should be taken into account when examining the claim at the earlier required date for assessment. Provided medical reports are pertinent to a claimant’s condition at the relevant assessment date, such opinions may be taken into account by the Court when it is considering the probability of a claimant being able to engage in relevant work at the date at which an insurer is required to assess TPD: Shuetrim at [150]. As McPherson JA explained in McArthur v Mercantile Mutual Life Insurance [2002] 2 Qd R 197 at [23] this conclusion accords with the principle that the court does not speculate, when it may know: a statement approved in Jones at [194]; and see also Finch at [18].

53. [67]

    Some background facts about Ms Sandstrom and her police service are required to assist in understanding the Stage I issues. These background facts do not resolve contested matters of fact concerning Ms Sandstrom’s symptoms and conduct during the period leading up to the making of MetLife’s decision. Those contests are left to be decided in Stage II. All that is required for Stage I are sufficient background facts to facilitate determination of the Stage I issues.

54. [68]

    Early Life and Education. Ms Sandstrom was born in 1983 and was 35 years old at the time of the hearing. She has three children, who at the time of the trial were aged 17, three, and one, respectively. Her husband, Mr David Abbott is the father of the two younger children. The plaintiff and Mr Abbott first met in late 2012, and were married in April 2016.

55. [69]

    In 1999, whilst Ms Sandstrom was still at school, at about the age of 16, she was employed part time as an office assistant for an insurance broker. This employment involved sorting documents, filing, running errands, and similar duties. She completed the Higher School Certificate in 2000, a few months before her first child was born.

56. [70]

    Between August 2003 and December 2005, Ms Sandstrom had a casual job as a cinema attendant at Greater Union Cinemas. Her work involved selling tickets and snacks, as well as some cleaning duties. This casual employment also provided her with the flexibility to continue to care for her young son, although she continued to rely heavily upon her parents’ support for his care and early bringing.

57. [71]

    Ms Sandstrom commenced study for a Bachelor of Arts degree in 2002. She intended to major in psychology. She had completed approximately 18 months of this degree, when she decided to alter the direction of her career ambitions.

58. [72]

    In 2005, she decided to apply to become a police officer. In May 2005 she commenced a Bachelor of Policing Studies at Charles Sturt University, via distance education. In January 2006, she commenced her training at the Goulburn Police Academy.

59. [73]

    Police Career - May 2005 to July 2011. Ms Sandstrom graduated from Goulburn Police Academy and attested as a Probationary Constable on 5 May 2006. She was posted to the Bankstown LAC. This was the Command in which she served for her five-year police career.

60. [74]

    During her probationary period, she undertook a six week secondment at the Campsie Police Transit Unit. Later she was seconded for 12 weeks as a Domestic Violence Liaison Officer. She was confirmed in the rank of Constable on 5 May 2007.

61. [75]

    Ms Sandstrom was assigned to general duties between 5 May 2006 and April 2009, when she was transferred to the IRT within the Bankstown LAC. Ms Sandstrom requested a transfer to the IRT. She wanted a change from general duties. She was not required to undertake any additional training to join the IRT. As will be seen, she did not have a smooth transition to the IRT.

62. [76]

    Ms Sandstrom worked in the IRT from April 2009 until September 2010, performing duties, as was expected of IRT officers, both in plain clothes and in uniform. The responsibilities of members of the IRT such as Ms Sandstrom included proactively patrolling particular geographical areas, supporting existing police investigations, engaging with the public, finding suspects in the field and conducting stop and search operations. Typically a surge in a particular crime category in the Bankstown LAC would result in IRT officers of Ms Sandstrom’s level being tasked with patrolling the crime–affected areas to provide backup in-depth policing. Officers such as Ms Sandstrom may also be involved in the execution of low level search warrants and the giving of general support to front line police.

63. [77]

    During both her general duties work and her work with the IRT, Ms Sandstrom was exposed to a series of incidents, which she identifies as having had a distressing or traumatic impact upon her. These incidents are described in detail in Stage II of these reasons. But for present purposes it need only be recorded that they included attendance at the scene of a number of fatal incidents, including motor vehicle accidents, suicides by different methods and murders. She was also required to attend at incidents of serious domestic and family violence.

64. [78]

    In August 2010, the plaintiff was transferred back to general duties. The circumstances of her transfer back are disputed. The Court does not need to decide between the competing versions of what happened at this stage of her police career. According to Sergeant Alan Spence, Ms Sandstrom requested the transfer back to general duties from IRT in about August 2010. But according to Ms Sandstrom, the transfer was initiated by her superiors. Ms Sandstrom says that when she asked why she was being transferred back, she was told that there had been a number of issues with her work performance, and a transfer back to general duties would allow her to be more closely supervised. In my view, Ms Sandstrom’s version of these events is to be preferred.

65. [79]

    Ms Sandstrom developed an intimate relationship with another police officer, Senior Constable Ben Crews. She lived in a domestic relationship with him between March 2010 and August 2010, when their relationship came to an end.

66. [80]

    The plaintiff remained at the Bankstown LAC for the remainder of her policing career.

67. [81]

    Disciplinary Issues and Re-Transfer. In February 2010, the plaintiff was the subject of a complaint in relation to her conduct as a police officer. She had allegedly failed adequately to prepare briefs of evidence and failed to attend Court in relation to an AVO matter. She was required to undertake an investigation course, and another course designed for probationary constables, which she says, and the Court accepts, she found humiliating. She was separately the subject of a complaint that she had misused her police authority for financial gain. She had allegedly attended a retail store, whilst on duty and in uniform, an occasion during which she had enquired about the price of a product.

68. [82]

    But the allegation of inadequate preparation of an AVO brief of evidence appears, according to police records, to have related to an incident on 30 June 2010 and was not ultimately dealt with until the next year, when she was already on sick leave before her discharge. The records of the Police Professional Standards Command with respect to this matter under the heading “action” indicates “no action – situation does not warrant action”. But Ms Sandstrom began to come under the attention of Police Professional Standards Command in 2009 and 2010, a feature of her career which will be referred to in more detail in Stage II of these reasons.

69. [83]

    On 7 May 2010, Ms Sandstrom applied for a transfer to the Penrith Police Citizen Youth Club (“PCYC”) as a Youth Liaison Officer. Her request for transfer was approved on 11 May 2010. She took 10 weeks annual leave in mid-2010, prior to her return to general duties in August 2010.

70. [84]

    Detective Senior Constable Crews – 8 September 2010. On 8 September 2010, a number of police officers from the Bankstown LAC were involved in the execution of a search warrant at premises in Bankstown. At this time, Ms Sandstrom, by then back on general duties, was attending a separate incident in the same area with a fellow officer. On her account, she heard over the police radio that shots had been fired. She and her fellow patrolling constable made their way to the incident scene to provide assistance to what was still an unfolding incident. She was told by others at the scene that Senior Constable William Crews had been fatally shot. She immediately recognised that Senior Constable Crews was the brother of the police officer with whom she had recently been in an intimate relationship.

71. [85]

    At trial, MetLife initially disputed that the plaintiff had been present at the premises at the time of this incident. But MetLife ultimately conceded during the trial that the plaintiff had been seen by Senior Constable Richard McNally at the scene, before police had established the crime scene perimeter cordon.

72. [86]

    Later that evening, Ms Sandstrom and a number of other officers attended the home of Senior Constable Ben Crews (he was by then back living with his wife and children) to inform him of the incident. After being informed that Senior Constable William Crews had survived the shooting, Ms Sandstrom was among a number of police officers, including Senior Constable Ben Crews, who attended Liverpool Hospital where he had been admitted for treatment. But by then Senior Constable William Crews was deceased.

73. [87]

    Aftermath and Discharge from the Police Force. Ms Sandstrom did not return to active duties with the police after 8 September 2010. On 13 September 2010, she was certified by WorkCover as being unfit to work from 10 September 2010 until 8 October 2010. This certification was extended a number of times until her discharge from the police.

74. [88]

    Her injury diagnosis, was described in the Police Injury Management Report at the time as “grief reaction as a result of being a witness to the above [Bill Crews] incident”. A Near Miss Notification Form by Christine Margaret Morris dated 8 September 2010, noted and reported about the plaintiff, that there was a “critical incident whilst executing a search warrant”. Prior to September 2010, the plaintiff had not taken any significant or extended periods of sick leave.

75. [89]

    Whilst on sick leave, on 20 September 2010, Ms Sandstrom formally withdrew her pending transfer to the Penrith PCYC. The reason she identified for the withdrawal was:

76. [90]

    Just what were her reasons for this application for re-transfer was one controversy at trial. While Ms Sandstrom was on sick leave, then-Acting Inspector Alan Spence attended her home on two occasions to conduct routine welfare checks on her. He gave evidence on issues relevant to the Stage II consideration in these reasons.

77. [91]

    On 16 June 2011, the Police Medical Discharge Unit received a referral for Ms Sandstrom’s medical discharge. Approval for her discharge was given on 23 June 2011. She was formally discharged from the police on 7 July 2011. Since that time, she has not sought employment, nor been employed in any capacity, either part-time or full-time.

78. [92]

    Partial and Permanent Disability Payment. On 4 August 2011 Ms Sandstrom was paid a Partial and Permanent Disability (“PPD”) benefit under Clause 9 of the Crown Employees (Police Officers Death and Disability) Award 2005. This benefit was assessed and paid by the police. The receipt of a PPD Benefit did not preclude Ms Sandstrom from receipt of a future entitlement to a TPD benefit. But she formally agreed by deed in June 2011 that should she receive a TPD benefit from FSS, she would repay the PPD benefit received back to the police, a liability which could be satisfied by repayment directly from FSS to the police.

79. [93]

    On 1 August 2011, Ms Sandstrom applied to First State Super for a TPD Benefit. She is currently in receipt of approximately $1,400 per fortnight in Workers Compensation payments through Employers Mutual Limited.

80. [94]

    Ms Sandstrom consulted a number of medical practitioners as a result of her absence from work and her symptoms. She had her own treating doctors and she was medically examined on behalf of the police, on behalf of MetLife, and on behalf of workers compensation insurers. Reports from all the medical practitioners mentioned below were available to MetLife at the time of MetLife’s decision.

81. [95]

    At the time of her discharge from the police, and in the years that followed, the plaintiff’s treating general practitioner was Dr Anita Wong. Ms Sandstrom was initially referred by Dr Wong to a psychiatrist, Dr David Grace, who gave her specialist treatment between 2010 and 2012. The police referred her in February 2011 for independent medical examination by Dr Graham George, a consultant psychiatrist. Dr George’s resulting assessments were relied upon by MetLife, which prior to its decision to decline Ms Sandstrom’s claim asked Dr Wong and Dr Grace if they agreed with Dr George.

82. [96]

    A well as Dr Grace, Ms Sandstrom was treated or reviewed by a number of other consultant psychiatrists. In 2012, Ms Sandstrom was referred by MetLife for examination to a consultant psychiatrist, Dr Ian De Saxe. In 2013 the plaintiff saw Dr Selwyn Smith, a consultant psychiatrist who examined her for medico-legal purposes. She came under the care of another treating psychiatrist Dr Greg Wilkins in 2014. She continued up to the time of hearing to be under Dr Wilkins’ care. Reports from these various doctors were provided to MetLife before its 24 July 2015 decision.

83. [97]

    Ms Sandstrom was also psychologically assessed. She was assessed in 2012 for treatment purposes by a psychologist, Mr Gerard Glancey. And she was assessed for medico-legal purposes by Mr Marcelo Rodriguez the same year.

84. [98]

    On behalf of the police or MetLife, she also underwent vocational assessments conducted by Ms Mira Zaki and Ms Zoe Buck. She was also subject to surveillance by investigators, Brookfield Investigations, some of the results of which were given to the doctors who assessed her.

85. [99]

    MetLife declined Ms Sandstrom’s claim on 24 July 2015. The delay between her assessment date of 9 March 2011 and MetLife’s decision is significant. During the delay period Ms Sandstrom was urging MetLife to make a decision.

86. [100]

    Four key documents provide the framework for Ms Sandstrom’s present challenge to MetLife’s decision. The contents of those four documents and a comparison of what they include and what they omit, are sufficiently important that these documents are substantially reproduced in these reasons.

87. [101]

    The four documents comprise MetLife’s two “procedural fairness” letters (being letters generally giving Ms Sandstrom notice of potentially adverse material to which she should direct her attention), Ms Sandstrom’s lawyers’ response to the first of these procedural fairness letters, and then MetLife’s decision on Ms Sandstrom’s claim. The first procedural fairness letter was sent to Ms Sandstrom’s lawyers on 26 February 2015. Ms Sandstrom’s lawyers, Norwest Lawyers, responded on 22 April 2015. MetLife then sent a further procedural fairness letter dated 23 June 2015 to Norwest Lawyers. MetLife made its decision to decline Ms Sandstrom’s claim under both the FSS Policy and the PBRI Policy on 24 July 2015. This correspondence is now considered in more detail.

88. [102]

    MetLife’s 26 February 2015 letter. MetLife’s first procedural fairness letter to Ms Sandstrom’s lawyers sent on 26 February 2015 commenced by referring to Ms Sandstrom’s claim and indicated that the purpose of the letter was to invite her to “review the list of documents/materials we have acquired during the course of our assessment process”. The letter then proceeded as follows:

89. [103]

    The first part of this 26 February 2015 letter lists all the documents that MetLife then had and would consider in making its decision. It is not necessary to reproduce that full list here. MetLife was inviting Ms Sandstrom to “submit additional medical information” to add to that list, if required.

90. [104]

    But then separately, MetLife further identified (from the already listed materials) particular documents that it said “contain possible adverse information”. It should be noted that under the heading “possible adverse information” in this letter, MetLife did not elucidate the potential adverse inferences or findings that might be made against Ms Sandstrom arising from this material. Rather, the letter merely identified by name the various documents that might possibly contain information adverse to Ms Sandstrom’s interests. That second part of the letter was as follows:

91. [105]

    The Norwest Lawyers’ letter of 22 April 2015. Ms Sandstrom’s lawyers, Norwest Lawyers, responded to MetLife’s first procedural fairness letter on 22 April 2015. They did so in a detailed letter which repeated the list of the “adverse material” which MetLife had described in that way. MetLife indicated that it might rely upon this material in making its determination.

92. [106]

    Then, the Norwest Lawyers’ letter of 22 April 2015 gave a précis of the plaintiff’s claim, setting out the factual circumstances of the main relevant events during her police service, which were said to have occasioned her PTSD symptoms and her related disorders. It then gave a more detailed history of her psychiatric and psychological symptoms, her claimed employment incapacity, her medications and her inability to rectify her symptomatology. It also listed the various medical professionals that she had seen up to that point of time. The letter serves as a convenient chronology of the medical professionals that she had consulted by that time. It mostly provides a background of often undisputed history, to assist the Court’s consideration of the Stage I issues. The letter was as follows:

93. [107]

    The Norwest Lawyers’ letter then summarised Ms Sandstrom’s TPD case as follows:

94. [108]

    The Norwest Lawyers’ letter of 22 April 2015 finally deals with what it describes as the “Purported Adverse Material”, of which they had been given notice in MetLife’s first procedural fairness letter. The Norwest Lawyer’s letter deals with this material at a fairly high level of generality. Given that MetLife’s letter of 26 February 2015, the first procedural fairness letter, only named the potentially adverse documents and materials, rather than indicating the particular findings that might arise from those documents and materials, in a practical sense a response at a fairly high level of generality is probably all that was possible on the part of Norwest Lawyers at that time. This section of the letter dealing with this “Purported Adverse Material” is as follows:

95. [109]

    In the above section of their letter, Norwest Lawyers dispute a number of matters. They dispute that the surveillance footage taken of the plaintiff, Ms Sandstrom is “inconsistent with [her] reported abilities and or disabilities”. And Norwest Lawyers dispute the admissibility of the various witness statements taken from police officers with whom Ms Sandstrom served and they challenge the circumstances in which the statements were taken by the investigator, Mr Bailey. This material is necessarily dealt with at this level of generality, because no potentially adverse findings that might be made on the basis of such adverse material were flagged to Ms Sandstrom in the first MetLife procedural fairness letter. Norwest Lawyers did not advance any further submissions in response to MetLife’s second procedural fairness letter. So, the passage set out in the preceding paragraph is as much dispute as was ever offered in relation to MetLife’s prospective findings, as were set out in its next letter of 23 June 2015.

96. [110]

    MetLife’s 23 June 2015, second procedural fairness letter. MetLife sent a second procedural fairness letter to Norwest Lawyers on 23 June 2015. The letter contains some paragraphs which are repeated in the final decision letter and some of which are not repeated. The relationship between these two letters presents something of a puzzle.

97. [111]

    The structure of the 23 June 2015 letter is as follows. It commences with an introductory set of paragraphs, recording what MetLife had received and how it has been considered, as follows:

98. [112]

    The Information Summary referred to was enclosed with the 23 June 2015 letter. It contains commentary on the medical reports that it listed that had been provided with the Norwest Lawyers letter of 22 April 2015. The relevant parts of the contents of the Information Summary are examined later in the Court’s reasons.

99. [113]

    This is followed by a section of reasoning in the letter described in a heading as “Our Assessment”. This section appears to represent MetLife’s then state of consideration of Ms Sandstrom’s claim. The text of the first part of this section of the letter is reproduced word for word in MetLife’s final decision. But curiously not all of the text of “Our Assessment” is reproduced in the final decision. The first part of the reasoning, which is reproduced word for word in MetLife’s final decision, appears below:

100. [114]

     This in turn is followed by some further assessment material, the text of which is not found anywhere in the final decision of 24 July 2015:

101. [115]

     Then included within the “Our Assessment” section appears one single paragraph, which does survive into MetLife’s final decision:

102. [116]

     This in turn is followed by a large section of reasoning concerning vocational assessment and related matters, which does not appear in the final decision of 24 July 2015 and which is set out below:

103. [117]

     In MetLife’s final decision, as will be seen, instead of the material set out above there appears a short summary paragraph dwelling upon the subject of vocational assessment.

104. [118]

     This “Our Assessment” material in turn is followed in MetLife’s 23 June 2015 letter by a final “non-opinion” (so called in these reasons because MetLife says that it “has not formed the opinion that the member has became incapacitated”). Curiously this non-opinion is reproduced in exactly the same form in the final decision, which MetLife gave a month later, on 24 July 2015. This “non-opinion” was expressed as follows:

105. [119]

     Norwest Lawyers did not reply to MetLife’s second procedural fairness letter. MetLife put the general submission that on this history Ms Sandstrom was not permitted now to contend that she had been denied procedural fairness. MetLife put this submission on the basis that its second procedural fairness letter of 23 June 2015 gave her the opportunity to respond and to put further submissions (within a reasonable 28 day timeframe) but that she did not take up that opportunity. Ultimately though, Ms Sandstrom’s case was not framed as a denial of procedural fairness, in the sense that she claimed she was denied the opportunity to put further submissions about matters that were later decided against her. Rather the thrust of her complaint was about the quality of MetLife’s reasoning and its reasons for decision.

106. [120]

     MetLife’s 24 July 2015 letter. MetLife is said to have finally made its decision to decline Ms Sandstrom’s claim under both the FSS Policy and the PBRI Policy on 24 July 2015. This letter was constructed as a final decision under the FSS and PBRI Policies as it was addressed to the policy owner, FSS, not to Ms Sandstrom. The parties’ submissions seemed to accept that parts of MetLife’s second procedural fairness letter of 23 June 2015 (which was addressed to Ms Sandstrom not FSS) could constitute evidence of the reasons for MetLife’s final decision to decline the plaintiff’s claim. But as will be seen, the Court doubts this is correct.

107. [121]

     MetLife’s final decision letter on 24 July 2015 extracted substantial parts of the second procedural fairness letter. It also reproduced the exact expression of MetLife’s “non-opinion” identified above. What is included and what was left out of the 24 July 2015, letter compared with the previous second procedural fairness letter, has some significance in analysing MetLife reasons for decision. Here is the full text of the 24 July 2015 letter:

108. [122]

     Examination of the form of MetLife’s decision as expressed in the 24 July 2015 letter, raises an issue as to whether or not in its final decision MetLife actually addressed the right question to itself. There is reason to doubt that it did. MetLife has not expressed itself in the way that decisions are often recorded under TPD definition clauses such as this one. For example in Shuetrim (see [112]) MetLife made a decision under an identical clause, to decline a TPD claim. In doing so it used the following words to record its decision: “therefore MetLife is not satisfied that on the balance of probabilities, Mr Shuetrim was TPD as at the relevant date”. This formulation of MetLife’s decision, expressed in Shuetrim, is unexceptionable. It directly addresses the obligation that arises from the wording of the ETE clause; being an obligation to determine whether the claimant has “provided proof to our satisfaction” of the requirements of the ETE clause. In Shuetrim (at [112]) the MetLife decision-maker directly addresses the question whether it is satisfied of the claimant’s TPD status and it may be assumed that it had done so on the basis of such proof as had been provided to it by the claimant.

109. [123]

     The same cannot be said about MetLife’s decision in this case. Here MetLife simply declares that it has “not formed the opinion that the member has become incapacitated to such an extent as to render her unlikely ever…” to engage in relevant work. But that statement begs the question as to why MetLife has “not formed the opinion”. There could be many reasons that a decision-maker had “not formed [an] opinion” about a claimant’s TPD status that do not necessarily involve a determination that the decision-maker is not satisfied with the proof of TPD status that the claimant had advanced. One such reason could be that the decision-maker was not as yet ready to decide the question on the materials that had been provided up to that point of time. Some support for that interpretation in this case is afforded by the fact that exactly the same formula had been used in the second procedural fairness letter of 23 June 2015, which was issued before MetLife could have expected all the relevant materials to be available. Thus, the language used by the decision-maker here does not clearly demonstrate it applied the correct test under the TPD definition to finally determine whether Ms Sandstrom was “unlikely ever” to engage in relevant work.

110. [124]

     But this point was not argued on behalf of Ms Sandstrom at trial. MetLife has not had a proper opportunity to respond to it. Moreover, the Stage I issues can be decided on other grounds. So the Court will go no further than to record here its doubts about whether MetLife actually addressed the correct question required by the TPD definition in its final decision in this case.

111. [125]

     Shortly after MetLife made its 24 July 2015 determination, FSS informed Ms Sandstrom by letter dated 25 August 2015 that it too would decline the plaintiff’s claim stating, “The Trustee, having undertaken its own separate analysis, has determined the decision by the insurer to decline your claim is fair and reasonable in the circumstances”. As these reasons have already explained, based on Shuetrim (at [8]), the FSS’s own analysis may have been unnecessary because its obligation to pay Ms Sandstrom is automatic upon receipt of payment from MetLife. Whatever be FSS’s equitable duties to decide Ms Sandstrom’s TPD status, as distinct from MetLife’s contractual duties to decide, once the plaintiff discontinued proceedings against FSS the only questions that now remain for consideration relate to MetLife’s decision on 24 July 2015.

112. [126]

     Ms Sandstrom identified in writing (“Exhibit R”) nine specific grounds of challenge at Stage I, which she contended were: breaches of MetLife’s obligation to act in good faith in dealing with her claim; and breaches of MetLife’s obligation to act reasonably in forming its opinion. Exhibit R refined the broader pleading of grounds of complaint in Ms Sandstrom’s Statement of Claim. Her Statement of Claim remained relevant to her contentions. These reasons now closely paraphrase the way that the nine grounds of Exhibit R were put on behalf of Ms Sandstrom. She alleges in Exhibit R that MetLife either did or failed to do the following:

113. [127]

     These reasons now deal with each of these nine grounds, although some were abandoned in the course of argument at the hearing.

114. [128]

     Ms Sandstrom’s first ground was that MetLife took into account and relied upon evidence from Dr Grace dated 30 January 2011, being material created before the date of assessment (9 March 2011). Ultimately she did not press Ground 1. It is difficult to see how it was ever a maintainable ground. Any relevant documents produced and available to the decision maker prior to the date of the Stage I decision would and should ordinarily be taken into account in a Stage I assessment. Ground 8(iv), which is expressed in the same terms as Ground 1, was also abandoned.

115. [129]

     In Ground 2, the plaintiff contends that MetLife had “isolated one sentence” from Dr Graham George’s report of 8 March 2011, and that on a proper interpretation of Dr George’s report, the “unlikely ever” criterion in the TPD definition was satisfied. After examining Ms Sandstrom, Dr George provided a report, of 8 March 2011, which contained a diagnosis that she suffered “[a]cute post-traumatic stress disorder”. Dr George’s opinion was that Ms Sandstrom would not be able to return to the police, either as an operational police officer, or in a restricted administrative or office-type role. He said in answer to MetLife’s following question about this subject “Does the officer have the capacity to perform permanently restricted duties, either administrative/office based role within the NSWPF?” (Question 5):

116. [130]

     He was then asked the following question (Question 7), which was close enough to the Policy wording to raise the question whether or not the plaintiff satisfied the TPD definition:

117. [131]

     He gave the following response to Question 7:

118. [132]

     The second sentence of this answer was extracted in both the second procedural fairness letter, and again in the 24 July 2015 decision letter. In substance, Ms Sandstrom’s argument under Ground 2 is that Dr George’s words in answer to Question 7, “she may be able to return to some form of work with a different employer” (emphasis added), must mean that it is “unlikely ever” that she will return to work; and therefore she satisfied the TPD definition. She then argues that MetLife’s decision wrongly cites this medical opinion as supporting its opinion that it was not satisfied she was TPD.

119. [133]

     MetLife submitted on Ground 2, that Dr George’s opinion that the plaintiff “may be able to return to some form of work”, on its proper interpretation, did not satisfy the “unlikely ever” wording within the TPD definition. MetLife further submitted: that not only was this language in Dr George’s report consistent with Ms Sandstrom having a “real chance” of returning to work, as Shuetrim (at [89] and [111]) makes clear is required; but, that there was also no basis to make a complaint against MetLife about using the sentence from Dr George’s report, because it did not misrepresent the whole of the report.

120. [134]

     The Court considers that the plaintiff’s submission over-interprets Dr George’s words in her favour. Dr George’s use of the words “may be able to return to some form of work” does not really enter upon or decide the fundamental contest that Leeming JA describes in Shuetrim. This contest is between on the one hand a “mere expression of hope” of engaging in relevant work (which will not be sufficient to sustain an opinion that the clause is not satisfied); and, on the other hand, “a real chance of returning to work” (which will sustain an opinion that the clause is not satisfied). In the Court’s view, the use of a word like “may” in this sentence in this context is consistent with both an “expression of hope” and “a real chance” and is simply an unhelpful basis for reasoning to either conclusion. So Ms Sandstrom cannot argue that this sentence is inconsistent with MetLife’s opinion that the TPD definition was not satisfied.

121. [135]

     But this analysis has other implication for MetLife’s case. Dr George’s opinion in his 8 March 2011 report is not able to be interpreted the way that MetLife submits. In his first sentence in answer to Question 7, Dr George affirms that Ms Sandstrom has “permanent disablement” with respect to police duties. But he takes a more flexible view about other duties, saying she “may be able to return” to them. As the question asked of Dr George was a direct one, close to the ETE wording “unlikely ever to engage in any gainful profession…”, his failure to say a simple “yes” in his answer might possibly be a basis to infer that he did not agree that she was “unlikely ever” to engage in relevant work, and therefore, that he must have meant that she had a “real chance” of returning to work.

122. [136]

     But this is so weak an inference that the the Court is not prepared to draw it. Dr George’s failure to answer Question 7 directly and his use of the word “may” can just as readily be interpreted as him saying: that he does regard her engaging in relevant work as “unlikely ever”; and that there is only a speculative possibility, or a “mere hope”, that she “may” one day return. Thus, the words Dr George uses in answer to Question 7 do not provide a sound basis in reasoning for MetLife to conclude in July 2015 that it is not satisfied she is “unlikely ever” to engage in relevant work. Simply stated, the words are unhelpful to MetLife in whether her return to work is a “mere hope” or a “real chance”. To discharge its contractual duty of forming an opinion reasonably, MetLife should not have relied on this sentence, as it did, but should have gone back to Dr George and asked him what he really meant, before relying on the sentence.

123. [137]

     None of the other context of Dr George’s 8 March 2011 report undermines this conclusion. Isolating this answer to Question 7 from the rest of Dr George’s report, as the plaintiff alleges against MetLife, does not misrepresent the substance of the rest of Dr George’s report. Dr George’s answers to Question 5 show how “reminders of the police work” are potentially destabilising triggers for her symptoms and that her weekly struggle with anxiety and panic attacks are a “significant disorder for her to overcome”. But this other material does not help either MetLife or Ms Sandstrom to ascertain the meaning of the words in the second sentence of the answer to Question 7.

124. [138]

     Ms Sandstrom also submits in relation to this ground that Dr George’s report poses “the wrong question” and that MetLife’s reliance upon it is therefore impermissible. But this argument is not to the point. The issue is whether or not MetLife ultimately poses the right question to itself, even if some of the material that it relies upon to answer that question is expressed other than in the precise terms of the ETE clause.

125. [139]

     This ground of challenge therefore partially succeeds.

126. [140]

     Confusion initially existed about the form in which this ground of challenge had been formulated. But this confusion was cleared up in oral submissions and the plaintiff ultimately stated Ground 3, as it is explained here. This ground challenges MetLife’s reliance on its 24 July 2015 decision letter upon Dr Wong’s “questionnaire completed on 11 March 2011 (two days after the date of assessment)”, Dr Grace’s “questionnaire completed on 22 March 2011 (less than two weeks after the date for assessment)” and parts of Dr Wong’s consultation notes.

127. [141]

     The facts relevant to the first part of this ground may be shortly stated. Once MetLife obtained Dr George’s report of 8 March 2011, it forwarded the report on 9 March 2011 to Dr Wong and Dr Grace, with a summary of its “main points”. This summary was organised into 10 separate closely typed dot points, followed by four questions that were addressed to each of Dr Wong and Dr Grace in identical terms. MetLife’s summary of the “main points highlighted within Dr George’s report” extracted Dr George’s answer to Question 7 among the 10 dot points. The 10 dot points were a fair summary of the substance of Dr George’s report but did not give special emphasis to the answer to Question 7. They were as follows:

128. [142]

     In its 9 March 2011 letter, MetLife’s question (Question 1) to Dr Wong and Dr Grace, following the “main points” highlighted from Dr George’s report, was “can you please advise if you agree with the above stated comments?” It had a box to indicate “yes” or “no” in response and some limited space for “[a]ny further comments”. It should be observed that the two doctors were not asked whether they agreed with each of the 10 dot point statements separately. Question 1 bunched them all together.

129. [143]

     The two doctors’ responses were respectively dated 11 March 2011 (Dr Wong), and 22 March 2011 (Dr Grace). Both doctors ticked the “yes” box. Dr Wong made no additional comments. But Dr Grace said by way of additional comment:

130. [144]

     MetLife posed another question (Question 3) to both doctors in this form: “Can you advise whether you believe that there is any capacity for Ms Sandstrom to return to work in any organisation (in the foreseeable future)?” Both Dr Wong and Dr Grace responded but in different terms. Dr Grace ticked “yes” and provided some reasons, that “within months of her complete severance from the NSW Police Force she will be ready to commence work elsewhere in some form of paid employment”. Dr Wong ticked “no”.

131. [145]

     Ms Sandstrom contends in Ground 3 that MetLife has misinterpreted Dr Wong’s and Dr Grace’s responses to these questions “as being evidence inconsistent with the ‘unlikely ever’ component of the TPD definition”. Rather, Ms Sandstrom submitted that, read objectively, the doctors’ responses to these questionnaires support the conclusion that she was “unlikely ever” to obtain relevant employment.

132. [146]

     MetLife’s response to this submission is that a proper interpretation of the two doctors’ responses supported MetLife. And MetLife submits that it could not be said, as Ms Sandstrom contended, that the only proper interpretation of this material was that she did satisfy the “unlikely ever” wording in the TPD definition.

133. [147]

     The Court’s analysis of this ground is somewhat similar to that for Ground 2. Both Dr Wong’s and Dr Grace’s initial agreement in Question 1 with Dr George’s opinion rises no higher than the quality of Dr George’s opinion, which the Court has already found is equivalent at best. Without more, it does not decide either way whether the “unlikely ever” wording is satisfied.

134. [148]

     Nothing else Dr Grace says resolves the equivocation. Dr Grace’s additional “Other comments” in further answer to Question 1 do not bear upon the question. Nor does Dr Grace’s response to Question 3 help. His answer to Question 3 is an elegant piece of diplomacy. His declaring that she will at a future time be “ready to commence work”, is not the same as saying that after commencing work she has a real chance over time of engaging in relevant work for reward. Dr Grace’s response can be taken no further than what it says: she will be “ready to commence work”, whatever that means.

135. [149]

     Assessed as a whole, Dr Wong’s answers give more assistance to Ms Sandstrom’s contentions than MetLife’s contentions. Her negative answer to Question 3, which probes whether or not she (Dr Wong) thinks she (Ms Sandstrom) has “any capacity...to return to work in any organisation (in the foreseeable future)” is evidence directly supporting a conclusion that she is “unlikely ever” in the sense of there being only a “remote or speculative possibility” (as it was put in Shuetrim at [89]) and not “a possibility that is readily contemplatable” of engaging in relevant work in the future.

136. [150]

     How is this to be reconciled with her answer to Question 1? Her answers can be assumed to be consistent with one another. In my view, if all one has are these documents, which are all the relevant documents from Dr Wong that are available at Stage I, the only sensible way to read Dr Wong’s agreement with the material put before her in Question 1 is that she saw that agreement as not inconsistent with her answer to Question 3. It is likely that she viewed the relevant parts of the summarised material from Dr George in Question 1 in the same way as the Court does: as not being decisive on the question of whether she is “unlikely ever” to engage in relevant work. So analysed, Dr Wong’s answers to Questions 1 and 3 do not contradict one another.

137. [151]

     In my view, Ms Sandstrom has made out Ground 3 with respect to Dr Wong’s questionnaire but not with respect to Dr Grace’s questionnaire. The MetLife letter of 24 July 2015 cites Dr Wong’s “questionnaire completed on 11 March 2011” as evidence supporting its conclusion. But this misinterprets Dr Wong’s responses as inconsistent with the “unlikely ever” component of the TPD definition. Ms Sandstrom is right that a proper reading of the material suggests that the “unlikely ever” component of the definition had been satisfied, at least so far as Dr Wong’s responses are concerned. MetLife has therefore misused this written material from Dr Wong.

138. [152]

     The second and quite separate part of Ms Sandstrom’s Ground 3 challenge relates to Dr Wong’s consultation notes of 9 May 2011. In those notes Dr Wong recorded that Ms Sandstrom “will not be able to return to policing, but I cannot say she will not be able to work in any role in the future”. Ms Sandstrom submits that a proper reading of this consultation note supports the conclusion that Ms Sandstrom is “unlikely ever” to undertake relevant work and that therefore it was erroneous for MetLife to rely upon it to support a conclusion that the “unlikely ever” component of the TPD defintion was not satisfied.

139. [153]

     MetLife contests Ms Sandstrom’s submission. It contends: (1) that Dr Wong’s consultation note entry of 9 May 2011 could only indicate that Ms Sandstrom did not satisfy the “unlikely ever” component of the TPD definition; and (2) that Ms Sandstrom’s submission about the consultation note may perhaps have rested on the erroneous assumption that the only work for which she was qualified under the ETE clause was police work.

140. [154]

     In the Court’s view, contrary to the plaintiff’s submission, Dr Wong’s consultation note of 9 May 2011 does not support the conclusion that she was “unlikely ever” to engage in relevant work within the TPD definition. But nor does the consultation note show that she had a “real chance” of engaging in relevant work in the future. Expressed as it is in the form of a double negative, the consultation note does not really say much at all that could be directly relied on by either party.

141. [155]

     But MetLife uses this consultation note in its reasoning in its 24 July 2015 decision letter to support its conclusion that the TPD definition is not satisfied. It certainly cites this consultation note in a way that implies it has been so used. In my view, because the note is essentially equivocal on the critical distinction, MetLife was not entitled to use it this way and in doing so failed to act reasonably forming its opinion.

142. [156]

     This ground of challenge therefore succeeds so far as MetLife’s use of Dr Wong’s report of 11 March 2011 and her consultation note of 9 May 2011 are concerned.

143. [157]

     Ms Sandstrom submitted in support of Ground 4, that MetLife had failed to take into account several medical and psychologist reports, which had been obtained for the purposes of her workers’ compensation claim. She contended that these medical reports furnished expert opinions that should have (again to paraphrase the words in Shuetrim) sustained an opinion that the TPD definition was not satisfied. And MetLife should have been satisfied on the basis of these reports that she was “unlikely ever” to engage in relevant work.

144. [158]

     Ms Sandstrom’s submissions on Ground 4 claimed that the following reports that had been obtained for workers compensation purposes had not been taken into account: the reports of Mr Glancey (2 May 2012), Mr Rodriguez (17 July 2012), Dr Oldtree Clark (9 October 2012), two reports of Dr Selwyn Smith (12 July 2013 and 9 August 2013) and the two reports of Dr Wilkins (19 June and 3 October 2014).

145. [159]

     MetLife submitted in reply on Ground 4 that it was clear from the second procedural fairness letter, and especially the annexed Information Summary, that MetLife had both referred to and considered these reports. MetLife submitted that not only were these reports expressly quoted, in the second procedural fairness letter but that it had made comments about each of them.

146. [160]

     In my view, MetLife’s submissions on this Ground are generally persuasive. The Information Summary annexed to the second procedural fairness letter is clear evidence that MetLife has taken into account the various reports obtained for workers compensation purposes, which have been identified in the Information Summary. Mr Baran of counsel for Ms Sandstrom conceded that the second procedural fairness letter should be read as demonstrating what documents MetLife had taken into account in the 24 July 2015 decision. The Norwest Lawyers letter of 22 April 2015 had provided these reports to MetLife and MetLife flagged them back to the plaintiff as material that it was actively considering. Merely because these reports are not referred to by name in MetLife’s final decision letter of 24 July 2015 does not mean they were not taken into account.

147. [161]

     But there is a caveat to this conclusion. Whether sufficient reasoning was provided to show how these reports were dealt with by MetLife to reach its decision is quite another question, one which is considered under Ground 7.

148. [162]

     In support of Ground 5, Ms Sandstrom submitted that MetLife had acted in a manner that was “biased” and had not taken into account all the medical reports and opinions provide to it. Ms Sandstrom submitted that MetLife had relied exclusively on selected parts of medical opinions that it believed supported the contention that the “unlikely ever” wording in the TPD definition had not been met. Ms Sandstrom identified the following medical reports in support of this argument: the reports of Dr George (8 March 2011), Dr Wong (11 May 2011), and two reports of Dr De Saxe (28 July and 29 September 2012).

149. [163]

     MetLife contended that bias was not pleaded in the statement of claim. But it ultimately did not take a pleading point that Ms Sandstrom was not able to argue that MetLife “acted in a manner that was biased”. Rather, MetLife submitted that the duty to consider the evidence before MetLife could be no greater than that of a trial judge in assessing a person such as Ms Sandstrom in a claim for damages for personal injuries. And in those circumstances there is no requirement for a trial judge to take into account the whole of the medical opinions and reports provided and to refer to all of them in reasons in order to effectively discharge the trial judge’s functions. Moreover, MetLife submitted that the Stage I materials showed that it had taken these medical reports into account and that it had looked at and referred to everything that had been submitted to it.

150. [164]

     MetLife’s contentions are persuasive on Ground 5. The claim of bias is not made out for several reasons. First, MetLife’s submission is accepted that it does not have to refer to all the medical reports in it reasons. The mere selection of more relevant material for inclusion in a statement of reasons is not in itself evidence of bias. Its obligation is to show the path of reasoning to its conclusions. This may include dealing with apparently probative material that contradicts its conclusions, a matter dealt with in Ground 7.

151. [165]

     Second, there was material before MetLife that would justify it holding the opinion that the TPD definition was not satisfied in Ms Sandstrom’s case, some of which it expressly referred to and some of which it did not. Its use of the material that it did use was not obviously highly selective in the sense that it was the only available material supporting MetLife’s opinion.

152. [166]

     In support of Ground 6, Ms Sandstrom contended that, as a whole, MetLife had failed to conduct a “proper, fair and reasonable analysis” of the documentation identified in the Information Summary, and had instead isolated only those components of medical reports which tended to support a proposition contrary to that of the plaintiff satisfying the “unlikely ever” definition. Ms Sandstrom submitted that upon a proper, fair and reasonable analysis, the materials identified in the Information Summary demonstrated that the “unlikely ever” wording had been satisfied here.

153. [167]

     MetLife also relied upon its earlier written submissions in support of Ground 6. It submitted that Ground 6 was really a repetition of the content of Grounds 2-5 inclusive. And MetLife submitted orally that it was plain that the plaintiff understood the second procedural fairness letter to comprise a part of (“the elements” of) the decision.

154. [168]

     In the Court’s opinion, Ground 6 in substance repeats Ground 5. But to the extent that this ground also contends that MetLife has ignored the plaintiff’s medical reports in its Information Summary, that contention is dealt with under Ground 7 below.

155. [169]

     In Ground 7, Ms Sandstrom submitted that MetLife had breached its contractual obligations by failing to take into account her 22 April 2015 response to the first procedural fairness letter. She maintained this contention despite MetLife’s written statement that it had taken her response into account. Ms Sandstrom based her reasoning under this ground on the fact that MetLife had provided “no reasoning as to why her submissions were rejected, when it was under an obligation to provide some adequate reasoning”.

156. [170]

     MetLife contended in answer that it had indeed provided reasoning explaining why the plaintiff’s 22 April 2015 submissions had not been accepted. MetLife accepted it was under an obligation to provide adequate reasons. But it submitted that to the extent that this could be understood to encompass an obligation to provide reasons for rejecting relevant material, it had done so in the second procedural fairness letter, which had called for a further response. MetLife submitted that as no further response was forthcoming, Ms Sandstrom was now in no position to complain about a lack of reasons for rejecting the material submitted to it.

157. [171]

     MetLife’s rejection of Ground 7 is not persuasive and in the Court’s view this Ground is made out.

158. [172]

     What are MetLife’s Reasons? MetLife invites the Court to treat its Information Summary attached to the second procedural fairness letter as part of its reasons for decision. Mr Baran accepted that MetLife’s second procedural fairness letter and the decision letter of 24 July 2015 could be read together, with the former being construed as part of MetLife’s reasons for its decision of 24 July 2015.

159. [173]

     Upon analysis of these letters the Court doubts that the second procedural fairness letter can be read as part of MetLife’s reasons for decision. But as the case was argued on both sides on the basis of this concession, the Court will base its reasoning here reading the two together, with the former providing reasons to supplement the latter. But before doing so, the Court expresses its doubts about reading the two together.

160. [174]

     The second procedural fairness letter is not an easy fit as a source of reasons for MetLife’s decision in its 24 July 2015 letter. Trying to read the two together raises many questions.

161. [175]

     The second procedural fairness letter declares that it has narrower purpose than providing reasons for decision. It states that it is “intended to provide you with the information we presently have and to invite you to provide any further response and/or provide any further information or submissions”. Its analysis is placed under the heading “Our Assessment”. Commencing under the heading “Our Decision”, the 24 July 2015 decision letter does not expressly incorporate all the contents of the second procedural fairness letter as reasons for decision but it does refer back to the previous letter as a source of relevant “medical opinion”.

162. [176]

     It is not always easy to reconcile the reasoning between the two letters. The second procedural fairness letter contains a whole section which is not reproduced in the 24 July 2015 letter. This section commences “[y]our education training and experience were considered by Ms Mira Zaki”, down to “MetLife has considered all of the above medical and other evidence in assessing your claim, along with the information contained in the enclosed Information Summary and letter from your solicitors dated 22 April 2015”. This section of the second procedural fairness letter deals with the vocational assessment reports of Ms Zaki and Ms Buck and then recounts the fact that Dr De Saxe and Dr Wong offered medical opinions about Ms Sandstom’s capacity to pursue the vocational options set out in these vocational reports. This tends to suggest that MetLife is relying upon the vocational and medical opinions together to conclude that Ms Sandstrom was by then ready to pursue those vocational options.

163. [177]

     But the 24 July 2015 decision letter substitutes a paragraph of different reasoning in place of the omitted section of the second procedural fairness letter. The substituted paragraph in the 24 July 2015 decision letter merely mentions the two vocational assessments but does not mention Dr De Saxe’s opinion about the vocational assessment. Because of the differential treatment of the same subject matter in the two letters, it is difficult to deduce whether or not this part of Dr Saxe’s opinion was relied upon or not in the 24 July 2015 decision.

164. [178]

     MetLife’s Inadequate Reasons. Ground 7 has substance, even if one reads the second procedural fairness letter, its Information Summary and the 24 July 2015 decision letter all together. The core complaint in Ground 7 is that MetLife “provided no reasoning as to why the submissions [in the 22 April 2015 letter] were rejected, when it was under an obligation to provide some adequate reasoning.” This complaint about the quality of MetLife’s reasons in rejecting what was advanced in the Norwest Lawyers’ 22 April 2015 letter is justified.

165. [179]

     MetLife did not explain why it reached the opinion that it did in the face of some of the medical evidence before it, which supported the opposite conclusion. The Norwest Lawyers’ 22 April 2015 letter contended Ms Sandstrom was “unlikely ever” to engage in relevant work principally upon the basis of the medical opinions of Dr Greg Wilkins, Ms Sandstrom’s treating psychiatrist and Dr Selwyn Smith, a consultant psychiatrist, Dr Oldtree Clark and Dr Grace. Each of these will be dealt with in turn.

166. [180]

     Dr Wilkins’ Opinion. The Norwest Lawyers advanced three reports from Dr Wilkins, reports of 19 June 2014, 4 August 2014 and 3 October 2014. None of Dr Wilkins’ reports is mentioned in the text of the second procedural fairness letter or in the 24 July 2015 decision letter. They only appear in the Information Summary.

167. [181]

     MetLife’s reasoning for rejecting Dr Wilkins’ report of 19 June 2014 in the Information Summary, though not a judicial standard of reasoning, is nevertheless satisfactory. MetLife summarises the content of this report, as including the opinion that “it is highly probable that she will not return to any form of paid employment in the foreseeable future”, and “she feels that she is currently incapable of performing any duties” and that “it is not possible to say she will be capable and had to work in any capacity in the future” and her prognosis “remains guarded”. Under the Information Summary heading “MetLife’s Comments”, which contains its reasons, MetLife then offers the not unreasonable assessment that Dr Wilkins’ prognosis in this report is “somewhat ambiguous”.

168. [182]

     Under the heading “Concluding Remarks” in Dr Wilkins’ report of 19 June 2014 Dr Wilkins also says:

169. [183]

     Although Dr Wilkins is saying here that “any appropriate work for which she is trained” will generate her “mixed symptoms of anxiety and depression”, Dr Wilkins is talking at the present rather than the future and MetLife’s view is reasonably open on the material. And MetLife’s observation of Dr Wilkins’ report, that it placed “undue significance” on Ms Sandstrom’s use of her own capacities is debatable but open, as the report draws heavily on Ms Sandstrom’s self-assessment.

170. [184]

     Curiously, MetLife does not deal at all with Dr Wilkins’ intermediate and significant report of 4 August 2014. His report of that date is quoted directly in Norwest Lawyers’ letter of 22 April 2015. The parts of this medical report that Norwest Lawyers rely upon recount Ms Sandstrom’s symptoms of anxiety, distress and reactive retreat and include comments that when Ms Sandstrom is placed in a position of responsibility “or simply presented with that possibility of being responsible for something or to someone, these symptoms increase dramatically. It is not possible to outline what employment activities she would be able to perform.” Although this opinion does not directly address the question of whether she is “unlikely ever” to engage in relevant work, the last sentence of this report is well capable of founding an inference that her future employment is only a “remote or speculative” possibility.

171. [185]

     But neither the Information Summary, nor the reasoning in the second procedural fairness letter, nor the 24 July 2015 decision letter, deals with this medical report. Any adequate path of reasoning must explain how contrary material such as this was able to be set to one side when MetLife reached its 24 July 2015 decision. But MetLife’s reasons do not, and MetLife as a result failed to act reasonably in forming its opinion.

172. [186]

     It should be noted that this is not one of the medical reports in Ground 4 that Ms Sandstrom particularises that MetLife failed to take into account. But Ground 7 is broadly expressed and encompasses the gap in MetLife’s reasoning about this 4 August 2014 report, which is a prominent part of the Norwest Lawyers letter of 22 April 2015.

173. [187]

     In the Information Summary MetLife deals with Dr Wilkins’ report of 3 October 2014 in a fairly summary fashion: “upon review, it appears as though the report was commissioned for workers compensation causation purposes unrelated to the member’s claim for payment of TPD benefits”. The purpose of commissioning a medical report is, on its own, no basis to dismiss the report, if the report provides a relevant and apparently probative contradictory opinion. But this 3 October 2014 report does not offer any prognosis for Ms Sandstrom, so MetLife’s assessment is accurate and its reasons are sufficient.

174. [188]

     Dr Selwyn Smith’s Opinion. MetLife’s reasoning for rejecting Dr Selwyn Smith’s opinion is also unsatisfactory. MetLife’s reasons concerning Dr Selwyn Smith appear in the “MetLife Comments” section of the Information Summary. There is nothing in the text of the second procedural fairness letter itself, or in the 24 July 2015 decision letter, that deals with Dr Selwyn Smith.

175. [189]

     Norwest Lawyers rely in their 22 July 2015 letter upon Dr Selwyn Smith’s two reports of 12 July 2013 and 9 August 2013. In relation to the former report, in the Information Summary in the second procedural fairness letter, MetLife cites the following content from the report:

176. [190]

     MetLife then makes the following comments about that summary of Dr Selwyn Smith’s opinions:

177. [191]

     But Ms Zaki’s and Ms Buck’s vocational assessments do not deal with Ms Sandstrom’s precise medically established restrictions. So the vocational reports, as Mr Baran submits orally, are irrelevant to Dr Selwyn Smith’s medical opinion. What a person in Ms Sandstrom’s position, but without her specific medical disabilities, might have been able to do with her pre-injury working capacity was hardly likely to influence Dr Selwyn Smith’s opinion, which was looking at her specific disabilities. This is not a proper basis for dismissing Dr Selwyn Smith’s opinion.

178. [192]

     MetLife also deals with Dr Selywn Smith’s report of 9 August 2013. MetLife cites the following from the report:

179. [193]

     Then MetLife makes the following comments:

180. [194]

     But once again the two vocational reports were unlikely to assist. Nor was Dr George’s report of 8 March 2011. These reasons have already analysed the ambiguity of Dr George’s report of 8 March 2011.

181. [195]

     But the “Content” from Dr Selwyn Smith’s 9 August 2013 report does not extract Dr Selwyn Smith’s strongest opinion:

182. [196]

     “MetLife comments” do not deal with this main thrust of Dr Selwyn Smith’s opinion, which is apt to cover her past, present and future employability, and bear closely upon whether or not the she satisfied the TPD definition.

183. [197]

     Dr Oldtree Clark’s Opinion. In its Information Summary, MetLife extracts the following content from Dr Oldtree Clark’s report of 9 October 2012:

184. [198]

     Under “MetLife’s Comments” in the Information Summary, MetLife gives reasoning on that material as follows:

185. [199]

     Dr Oldtree Clark’s report does not address the formula of the TPD criteria. It refers to the present and does not venture into Ms Sandstrom’s employability in non-policing roles in the future. For this reason, in my view, MetLife’s reasoning dealing with Dr Oldtree Clark’s report is adequate.

186. [200]

     Dr Grace’s Opinion. Norwest Lawyers’ letter of 22 April 2015 expressly cites the conclusion of a medical report of Dr Grace that deals with Ms Sandstrom’s future employment prospects and directly addresses the TPD definition. Dr Grace’s short report dated 24 June 2011 provides as follows:

187. [201]

     The concluding paragraph of this report is extracted in the text of the second procedural fairness letter. Strangely, this report is not referred to anywhere in MetLife’s Information Summary.

188. [202]

     The material in this report is so directly relevant to and contradictory of MetLife’s conclusion that it would have to be dealt with somewhere in MetLife’s reasons for its reasons to be an adequate explanation of its decision. Alternatively, the absence of any reference to this highly relevant report and the reference to less directly relevant reports of Dr Grace is a basis to infer it was not taken into account. Either way, by failing to deal with Dr Grace’s report of 24 June 2011, MetLife has not acted reasonably in forming its opinion.

189. [203]

     The inadequacy of MetLife’s reasoning about all this medical evidence can be illustrated by posing questions about the issues that its reasoning does not cover. Did MetLife reject the whole of Dr Wilkins’, Dr Selwyn Smith’s or Dr Grace’s opinions? If so, in what medical basis did MetLife choose between the opinions of these doctors on the one side, and Dr De Saxe on the other?

190. [204]

     MetLife’s statement in its second procedural fairness letter that it has considered all the “other evidence” does not cure these defects.

191. [205]

     A judicial standard of reasoning is not required from an insurer in MetLife’s position; and an insurer’s decision is a “practical” document. But the insurer’s own chosen reasons for decision are its opportunity to show objectively that its conclusion was reached by rational evaluation of the comparative quality of contradictory medical opinions, or through some other reasoned basis for preferring one medical opinion over the other, and not by a process that failed to have due regard to the interests of the claimant. MetLife here leaves gaps in its reasoning about the medical reports and fails to take the opportunity it held to explain why it rejected evidence contradicting its conclusion. The Court therefore is left in no position to infer that MetLife had due regard for Ms Sandstrom’s interests in reaching its decision.

192. [206]

     An Artificial Chronological Construct. Finally, throughout the text of both letters and in the Information Summary, MetLife evaluates the worth of the medical evidence in a simplistic chronological hierarchy. A few examples will suffice to illustrate this issue. MetLife refers to Dr George’s 8 March 2011 report both in the second procedural fairness letter and in its 24 July 2015 decision letter, as being dated “only one day prior to the date of assessment [9 March 2011] and is the most contemporaneous medical evidence and opinion to the date for assessment”. MetLife’s appears to reason here that somehow the temporal proximity of the report to the assessment date gives the report special evaluative priority over all other relevant evidence and material.

193. [207]

     Whilst it is true that the decision-maker should not lose sight of the assessment date, mere proximity of a medical report’s date to the assessment date does not indicate greater potency in the medical opinion expressed. Opinions that are less proximate to the assessment date may nevertheless provide highly relevant evidence that must be addressed. By this kind of reasoning MetLife is making a working assumption of demoting, as worthy of only lesser consideration, medical reports that are more distant in time from the assessment date. Such a working assumption is apt to cause probative medical evidence well after the assessment date to be artificially displaced. This may explain why Dr Grace’s report of 24 June 2011 and Dr Wilkins’ report of 4 August 2014 were apparently ignored.

194. [208]

     The Vocational Assessments. MetLife’s reliance upon the two vocational assessments of Ms Zaki and Ms Buck is also challenged in Ms Sandstrom’s submissions. This challenge fits under Ground 7. MetLife’s 24 July 2015 decision letter observed that these vocational assessments show “several vocational options have been identified as potentially suitable for the member to pursue given her education training and experience”. This appears to apply the vocational assessments directly to Ms Sandstrom’s situation.

195. [209]

     But a proper reading of the vocational assessments shows that they did not take into account Ms Sandstrom’s actual psychological disabilities as indicated in the medical opinion. Ms Zaki’s and Ms Buck’s evidence talks about what kinds of jobs Ms Sandstrom’s police and pre-police experience would objectively qualify her in the jobs market. They attempt superficial assessments of her stability and presentation. But neither of them had the expertise to medically assess her true disabilities. Leaving aside the need for re-training, as their opinions were not based on Ms Sandstrom’s actual attributes, they were no basis to infer, consistent with MetLife’s duty, that Ms Sandstrom herself, with her particular psychological disabilities as explained in the medical evidence, could actually do any of these jobs: see Ziogos at [102]. This was another defect in MetLife’s reasoning.

196. [210]

     MetLife’s argument that Ms Sandstrom did not reply to the second procedural fairness letter does not save it from the defects in its own reasoning process. Ms Sandstrom has no obligation to point them out, even if she noticed them at the time.

197. [211]

     Ground 8, was said in oral submissions to be an “overarching ground”. It is “overarching” in the sense that its four sub-grounds (i) - (iv) repeat many of the contentions of Grounds 2 to 7. Sub-ground (i) of Ground 8 repeats Ground 1, which has been withdrawn. Sub-ground (ii) appears to allege misuse of evidence and bias in a way that is not obviously different from Grounds 2, 3 and 5. Part of the focus of sub-ground (ii) is on MetLife’s letter of 24 July 2015 to FSS: it criticises that letter’s failure to supply an “objective summary” to the trustee for the purposes of the trustee’s decision. But the trustee’s decision is no longer challenged, so this sub-ground falls away. Sub ground (iii) refers to MetLife having “dismissed reports by Doctors Wong and Grace that the plaintiff met the criteria for TPD”, which seems once again to be attacking MetLife’s failure to provide adequate reasoning to dismiss those doctors’ reports, a matter already covered. Sub ground (iv) merely repeats grounds 1 to 7. Thus Ground 8 need not be further separately considered.

198. [212]

     Ground 9 contends that in its decision MetLife had breached its obligation to act in good faith and to undertake a real and genuine consideration of the evidence, because MetLife “had acted on the assumption that the relevant work for the purpose of the ETE component of the TDP definition was not that of a police officer, when in all the circumstances, the only work for which the plaintiff was suitably qualified by virtue of her training, education and experience was that of a police officer”.

199. [213]

     MetLife’s argument in answer to this ground is persuasive. MetLife undoubtedly considered the available evidence that the plaintiff could do work other than as a police officer. The vocational assessments before MetLife from Ms Zika and Ms Buck on their face said the plaintiff was vocationally qualified at the time of assessment by her prior experience for other occupations, such as enquiry clerk, general clerk and sales assistant (Ms Zika) and leisure co-ordinator, clerical or administrative assistant and case manager (Ms Buck).

200. [214]

     There were of course problems concerning MetLife’s use of Ms Zika’s and Ms Buck’s vocational assessments, problems which have been identified under Ground 7. But these vocational assessments were at least some evidence before MetLife at the time of its decision to sustain MetLife holding an opinion that Ms Sandstrom’s experience acquired before leaving the police, when objectively assessed, might potentially qualify her for various non-police occupations. They do identify the kind of occupations that a person with experience like Ms Sandstrom might be able to pursue. The only problem with the vocational assessments, as the reasoning under Ground 7 shows, is that it was an error to infer from them that Ms Sandstrom herself, with her particular disabilities, could pursue these occupations.

201. [215]

     But in my view, apart from what is said in Ground 7, MetLife is not to be criticised for exploring this issue in the way that it did. And it was entitled on this evidence to conclude that a person with the plaintiff’s general experience could undertake these various non-police roles. Moreover, Ms Sandstrom did not contest MetLife’s vocational assessment evidence on the basis that her only skills at the date of assessment were those of a police officer. Rather she advanced the case, in the Norwest Lawyers 22 April 2015 letter, that she could not utilise whatever vocational skills she had because her overpowering PTSD symptoms “destroyed her ability to participate in the work force.” Her case to MetLife was that all vocations of whatever type, were closed to her, not that she was only qualified for police work.

202. [216]

     For these reasons therefore MetLife’s decision of 24 July 2015 was not made in accordance with its contractual duties and will be declared void and set aside.

Stage II: Is Ms Sandstrom TPD within the Policies?

1. [217]

   The Court’s conclusion in Stage I that MetLife’s 24 July 2015 decision should be avoided now enables the Court to determine, in Stage II, whether or not Ms Sandstrom satisfies the TPD definition in the FSS Policy and the PBRI Policy.

2. [218]

   The Court has access to more lay and medical evidence than was available to MetLife in June 2015. Stage II covers events occurring after the time that MetLife declined the plaintiff’s claim on 24 July 2015; or evidence that was not before MetLife at the time of its decision but which is now available for consideration.

3. [219]

   Stage II commences with a wider account of Ms Sandstrom’s employment and family history, from the time of her police service. The findings, including incidental credibility assessments, are set out in approximate chronological sequence. The medical evidence and other expert evidence are then dealt with together. Stage II concludes by applying the TPD definition in each Policy to the Court’s findings.

4. [220]

   The following is a narrative of the relevant history. This narrative represents the Court’s findings on the matters covered, except to the extent that the context indicates that only the parties’ allegations are being recorded in these reasons. For reasons of economy this narrative does not include reference to versions of the facts that have been rejected.

5. [221]

   Ms Sandstrom’s police career has already been outlined. She was exposed to harrowing events throughout her police service. Her evidence about some of these events was contested. But where her account was disputed, evidence from other sources ultimately proved her account to be correct. She could not recall the dates of all of the incidents in which she was involved and there were lesser incidents, apart from the ones that she recalls with greater clarity. An understanding of the detail of these events is important for judging their impact on Ms Sandstrom and assessing her reliability as a witness.

6. [222]

   Ms Sandstrom commenced at the Bankstown LAC on general duties and transferred to the IRT in 2007. The IRT’s work involved frontline policing, which appears to account for most of her exposure to the events that she now so vividly remembers. A generally chronological account of them follows.

7. [223]

   A Pedestrian Is Killed By A Truck – 2006. The first incident Ms Sandstrom describes as shocking her, was one in which she was called to the scene of an accident in which an elderly man had been hit by a cement truck on the Hume Highway at Bass Hill. She was among the earliest first responders to this scene. There she was confronted with the sight of the deceased male lying on the roadway, an image she still carries in memory.

8. [224]

   Her First Suicide Scene – 2007. In 2007 Ms Sandstrom recalls being called to a domestic residence at which an adult female had hung herself in the garage. The deceased woman had been found by her 19 or 20 year old son. When Ms Sandstrom arrived she assisted other crime scene officers who were recording and processing evidence. Throughout this work the deceased was still hanging, where she had died.

9. [225]

   Subsequent to her work at the crime scene, Ms Sandstrom attended the morgue at Glebe, to assist in the necessary paperwork for receiving the deceased woman’s body into the morgue.

10. [226]

    Ms Sandstrom says, and the Court accepts, that she was not provided with any counselling consequent upon her involvement in this incident. Her memory still records a sharp image of the woman’s body hanging from the garage beam.

11. [227]

    Evidence at the Bass Hill Police Station Holding Yard – 2008. A vehicle holding yard abuts the Bass Hill Police Station. It mostly stores motor vehicles that have been involved in fatal accidents, whilst evidence from them is being analysed and processed. In 2008 Ms Sandstrom was temporarily posted to the Bass Hill Police Station, where her duties included walking around this holding yard to ensure that evidence and other police property were secure.

12. [228]

    Two damaged motor vehicles within this yard still stand out in her mind. One with a smashed windscreen had been in an accident with a pedestrian. Ms Sandstrom could clearly see the victim’s hair caught in this car’s cracked windshield and a passenger had been killed in the rear seat of another vehicle. She saw brain matter and blood splatter visible on the interior roof of this vehicle. She remembers these details well.

13. [229]

    A Psychotic Episode at Revesby – 2008. In what appears to have been 2008, the plaintiff was required to respond to an incident in Revesby, involving a man undergoing a psychotic episode. He had stabbed himself in the stomach and slit his throat with a machete. Ms Sandstrom was among the first responders. She assisted other police to hold down this floridly psychotic and convulsing individual, whilst other police tried to subdue him with tasers.

14. [230]

    As might be expected, she recalls there was blood “everywhere”. She still carries in memory strong images from this incident. She recalls looking down at the man and seeing the severed veins hanging out of his lacerated neck and the gaping self-inflicted wounds to his stomach.

15. [231]

    A Suicide at Bankstown Railway Station – 2008. The plaintiff recalls being among the first responders to a woman’s suicide at Bankstown Railway Station in 2008. The Court accepts her evidence about this incident. She recalls that one Thursday evening around 5pm she was called to a scene where a woman of about 40 had apparently walked to the end of the station platform and ventured down onto the railway tracks. Without anyone noticing the woman had managed to lie down on the tracks and place her neck on the rails. A moving train had then decapitated her.

16. [232]

    When Ms Sandstrom arrived, she rushed to the end of the station and down the ramp leading to the gravel permanent way. There about 10 metres away she could see the headless body of the deceased woman was lying under a stationary train, with her severed head nearby.

17. [233]

    Her duties that day included protecting the public from the grisly reality of this suicide. She walked around to the nearby bus terminal located at the North Terrace of Bankstown Station, to ensure the general public could not see the body from there.

18. [234]

    Ms Sandstrom says, and the Court accepts, she was not provided with counselling after this incident. She only recalls the Sergeant in Charge of the scene saying to her and others at the end of their duty, words to the effect, “Well that was pretty fucked. Alright everyone good, time to go home”.

19. [235]

    Ms Sandstrom suffered ongoing effects of this incident. The Court accepts it has affected her in the several ways she explained. She refuses now to catch a train. She is petrified of her children catching a train. She would panic when her eldest son left to go to school. She says, and the Court accepts, that she fears something will happen to her son at the railway station and she will lose him forever. She imagines that “some idiot will push him onto the tracks, or he will fall and be killed by the train”.

20. [236]

    The Court accepts she still carries lurid and intrusive images of this incident. She says, “I can still see the body of the woman underneath the train with her head further down the track”. She does not know how to rid herself of these recurrent images.

21. [237]

    An Incident at Kelso Park – Early 2009. In about early 2009, Ms Sandstrom attended a scene where a young man had committed suicide by gassing himself inside his motor vehicle. The man had used electrical tape to secure himself to the car-seat and to affix a plastic bag over his head.

22. [238]

    Ms Sandstrom was again one of the first responders. She arrived shortly after his body had been located. She well remembers the plastic bag taped over his head, secured by tape around his neck. And she remembers the electrical tape securing him to the seat wound around the top half of his torso. A gas bottle was lying on the passenger seat, which had been folded down onto the rear seat. Ms Sandstrom recalls looking at the body of this deceased man and being “scared” as she looked at his head through the clear plastic bag.

23. [239]

    When Ms Sandstrom arrived the keys were still in the ignition. Before his death the unfortunate man had turned on the car radio, which was still on when she arrived. Ms Sandstrom remembers this radio was playing a song by Maroon 5 called “She will be Loved”. She says, and the Court accepts her compelling evidence of this, that every time she hears that song on the radio, she has to turn it off, as it triggers her memory of this scene.

24. [240]

    Ms Sandstrom’s memory embedded other incidental details of this incident. She was called to the scene on a shift starting at 3pm. By about 4am the next day, she and her police partner were seeking to finish their shift, after dealing with this incident. Her Sergeant informed her that she would not get paid overtime.

25. [241]

    With the benefit of hindsight, Ms Sandstrom believes she first became unwell in her police service after attending this scene. This view springs in part from the images that immediately played through her memory. She went home that night and remembers lying in bed and seeing the body of this deceased male standing in her bedroom doorway with the plastic bag over his head. She recalls being “too scared to close my eyes or look at the doorway”. The Court accepts that she lay in the dark, terrified and could not move.

26. [242]

    The Pheasant’s Nest/Sutton Forest Murder – 11 August 2009. On 11 August 2009, Ms Sandstrom and Constable John Warda were tasked to attend a crime scene in the Pheasant’s Nest area, near Sutton Forest. Constable Warda is now a Senior Constable. At the time of this incident, Ms Sandstrom was the more senior of the two police.

27. [243]

    A dismembered body of a murdered woman had been discovered in the Pheasant’s Nest/Sutton Forest area some two days before Ms Sandstrom’s and Senior Constable Warda’s mission to the area. Police had commenced searching and located a number of other human body parts, including an arm and a severed head.

28. [244]

    Ms Sandstrom was cross-examined to suggest that she was inventing this incident. A vigorous cross-examination, undertaken on instructions, sought to infer that it was highly unlikely that a police vehicle from Bankstown LAC would have been tasked to attend at a murder scene almost 80 kilometres to the south.

29. [245]

    This cross-examination was ineffective, mainly because it was based on wrong instructions. Ms Sandstrom stood her ground when challenged. Senior Constable Warda was called on subpoena to give oral evidence. He confirmed he had accompanied the plaintiff in a police vehicle from Bankstown LAC to the Pheasant’s Nest area on the southern freeway that day to give assistance to other police in relation to this crime scene.

30. [246]

    Senior Constable Warda’s recollection was backed up by the production of his police notebook. It confirmed they had indeed gone in a police vehicle to Pheasant’s Nest shortly after commencing their duty on 11 August 2009, and remained at the scene between 5.30pm and 7.40pm. The time the two police are recorded as being there in late winter conforms with Ms Sandstrom’s recollection of the scene being in darkness. Consistent with her account of what then occurred, their task was described as being “crime scene relief”. The notebook entries record:

31. [247]

    Ms Sandstrom and Constable Warda both confirmed in evidence that on arrival at Pheasant’s Nest they had been entrusted with looking after body parts, which they both recalled, either had been or were being placed in bags in the back seat of their vehicle, until they were later removed by other officers. They had been directed to undertake this unpleasant task in order to protect crime scene evidence, including the body parts, from contamination.

32. [248]

    The Court accepts that Ms Sandstrom still retains strong images of this grisly task. Those images burst through her evidence at one point, resulting in her spontaneously breaking down in deep distress.

33. [249]

    Her story of this occasion paints a series of vivid images that appear to the Court to be some of the most uncontrollable of the phantasmagoria from her police career that she carries within her. She sees the parked police vehicle at the edge of a bridge (probably the Pheasant’s Nest Bridge, on the southern freeway) next to the roadway and adjacent to a large bush area. She sees it raining heavily. She sees the crime scene officer removing body parts and placing them in exhibit bags. She sees the head of the deceased woman wrapped in a garbage bag being placed into an exhibit bag on the back seat of her police vehicle.

34. [250]

    Ms Sandstrom sees the crime scene officer take the deceased woman’s arm and place it into another bag. She says they held it up when handling it. She sees “the petite hand, fingers and fingernails". The Court accepts that she can in her mind still on occasions see this woman's bagged head on the back seat of the vehicle. She says even now in her own car she will turn back to look for something and she sees the murdered woman’s head on the back seat of her car. As Ms Sandstrom says, "it still scares me". The Court accepts that these images spontaneously flood into the plaintiff’s conscious thoughts beyond her control.

35. [251]

    The plaintiff said, and the Court accepts, that she was not provided with any counselling after this incident. Moreover, she says that she was criticised for not completing an incident task sheet, an omission that may be accounted for by her mental state.

36. [252]

    The Georges Hall Backyard Suicide – 30 October 2009. Ms Sandstrom and another officer attended a scene at Georges Hall on 30 October 2009, at which an elderly male had committed suicide, leaving a gruesome scene.

37. [253]

    Ms Sandstrom’s police vehicle was the first to arrive at this scene. She and her fellow officer faced a confronting situation. An elderly gentleman had sat in the back garden of a house, facing a fence with a blanket over him and shot himself in the head with a rifle. On the police arrival the male was still seated in the chair with his blood and brain matter everywhere. Ms Sandstrom and her police partner checked for a pulse. As they were touching him he appeared to come alive and kick back in the chair, landing on his back. The two police thought they discerned a pulse. Ms Sandstrom’s police partner immediately applied CPR, without putting gloves on. Ms Sandstrom gloved up and took over the CPR. The Court accepts the plaintiff still has powerful memories of being able to feel the sound of this elderly gentleman’s ribs breaking under the pressure of her hands as she performed CPR. She remembers trying not to look at in his face: she was scared that if she saw his face, she would not be able to continue.

38. [254]

    Soon afterwards ambulance officers arrived and checked for a pulse. An ambulance officer told Ms Sandstrom to continue with the CPR. The male was transferred to the ambulance and rushed to hospital but he died en route.

39. [255]

    After the victim was taken away, Ms Sandstrom has memories of walking up the side of the house and people talking to her there but she was not responding. She walked around to the front yard area of the house, bent down to wash the blood off her hands and realised for the first time that it went all the way up to her elbows. Asked by another officer if she “was OK?”, she parried the question. She explained, “I didn’t want to talk about it because I felt as if [I] was about to cry”.

40. [256]

    She recalls trying to process the fact that she had another human being’s blood on her hands and was trying to understand the events that had just taken place. She stayed at the tap until she could pull herself together. She applied a handgel cleanser but as her hands were still wet, she recalls they became “really sticky”.

41. [257]

    She and her partner went to the Bankstown Hospital for blood tests before returning to the station. She reported to her Sergeant that she could not finish the shift and was going home. She saw a counsellor first, explaining to the counsellor, “I just wanted to go home, as I had some guy’s brains and blood all over me and on my uniform”. She also remembers “driving home thinking it was disgusting that I had blood all over the base of my shoes and that it was touching the pedal of my car.”

42. [258]

    When she arrived at her parents’ house her son came to the front door to greet her. She pushed him away to keep him free of the blood. Her parents fetched a garbage bag. She stood on the front doorstep, took off all her police clothing and put it straight into the garbage bag. She felt at the time and since that her son and her parents should never have been exposed to this.

43. [259]

    Ms Sandstrom reported this incident to her general practitioner, Dr Anita Wong. Dr Wong’s notes of 4 November 2009 record that the plaintiff “had a blood exposure on Friday. 77 y.o. man shot himself and blood contact. Has had Hep B C HIV testing”.

44. [260]

    Contemporaneous police records confirm this incident. Ms Sandstrom lodged an Incident Notification form, reporting the incident in the following terms:

45. [261]

    A Safety Incident Investigation Form was filled out describing the incident in similar terms.

46. [262]

    A Domestic Assault in Bankstown – 16 October 2009. Ms Sandstrom describes a police callout in October 2009 as "the worst domestic incident and assault I've ever witnessed". The Court accepts her account of this incident.

47. [263]

    On 16 October 2009, Ms Sandstrom was the first responder to a report of domestic violence at a unit in Bankstown. She knocked on the front door which a male answered. At that moment a woman pushed past the male and, as the plaintiff explained, she literally "fell into my arms". The woman had a black eye and a swollen face. The woman indicated to Ms Sandstrom that her husband had caused her visible injuries.

48. [264]

    Ms Sandstrom's partner handcuffed the by then resisting male. The plaintiff heard a child crying. She looked up and saw two young boys aged seven and four standing nearby, watching the police grappling with their father. She said she recalls “absolute terror” on their faces and felt upset that they had just witnessed their father being arrested.

49. [265]

    Ms Sandstrom's partner stayed with the husband, while she interviewed the female in the bedroom. The woman undressed and showed Ms Sandstrom extensive bruising over every part of her body. Ms Sandstrom photographed her injuries and recalls being almost in tears whilst taking the photographs. She said "I don't know how to describe what I saw that day and I've never seen anything like it before".

50. [266]

    Ms Sandstrom was given more background later about the woman. She recounts that the woman had nearly been beaten to death by her husband and had called the police. Ms Sandstrom believed, that the woman had made the call with the intention that the police would collect her children so they would be safe.

51. [267]

    The plaintiff emphasised in her written statement the persistence of this horrific incident in her memory:

52. [268]

    A Drowning at Georges River – 12 February 2010. On 12 February 2010, the plaintiff attended a scene at Picnic Point on the Georges River, where a young man had drowned. Upon arrival at this scene, she and other officers were tasked with trying to locate the body of the drowned man. They boarded a boat belonging to a member of the general public and commenced to search in the water.

53. [269]

    The plaintiff had been told that the young man had been pulled underwater by a strong current. She says to this day she is still uncertain of being safe in water like this. She is fearful of something happening to her son. She is afraid that she may not be able to handle a situation like the drowning of this young man, if something were to happen to her son. The plaintiff said that the effect of this incident was that she “began to fear water and [could not] bring herself” to take her children to a beach or to a pool.

54. [270]

    The evidence of the plaintiff’s fear of water is challenged, and the reality was not as simple as the plaintiff’s statement here. The Court’s analysis of this challenge is dealt with later in these reasons.

55. [271]

    In 2007 Ms Sandstrom applied to join the IRT within the Bankstown LAC. There she became responsible to the head of the IRT, Sergeant Spence, who MetLife called in evidence. He explained that he formed an adverse view as to her work abilities and work capacity, and about her attitude to police work. He gave examples where he had been required to discipline her. He had a low opinion both of her reliability and her resilience as an officer.

56. [272]

    Sergeant Spence was a truthful and reliable witness. He said the plaintiff failed to meet his standards. He did not regard her as a team player within the command and thought that at times she engaged in manipulative behaviour. The Court accepts his characterisation of the plaintiff, as far as it goes. As these reasons show in times of stress, she was capable of manipulative behaviour.

57. [273]

    But Sergeant Spence was not particularly interested in any psychological issues that the plaintiff might have had. Once the plaintiff failed him at work he lost interest in her as a productive member of the team. Whatever her personal issues were, Sergeant Spence judged they were beyond his capacity to manage. Nor did he see Ms Sandstrom as someone he could readily approach to try to sort out those issues. In my view, he expected high standards of fellow officers. He did not tolerate weakness, particularly of the kind the plaintiff displayed. He was not biased against her. But he was unsympathetic to her situation, because he judged her to be a non-contributor. He did not see it as his role to necessarily fix the problem that he thought she presented.

58. [274]

    Sergeant Spence was bluntly candid about the culture of the IRT. He described it as “a boys’ club”. As he said himself, “female officers were actually discouraged by the male members of that unit from applying [to join the IRT]”. The plaintiff was one of only three female officers then in the unit. His evidence indicates there was an air of casual unfriendliness to female officers within the IRT that made meeting its standards of behaviour more challenging for them. Whilst I accept, in his own words, that he had no “axe to grind” against the plaintiff, he was not going to take positive steps to support her in what was an unnecessarily difficult environment.

59. [275]

    That being said, Sergeant Spence generally came across as a police officer exercising sound professional judgment about the police around him and whose evidence can generally be relied upon by the Court. But his evidence needs to be reconciled with a more comprehensive narrative of what was happening to the plaintiff during this period. The medical evidence which the Court accepts says that by about 2009, after exposure to quite a number of these traumatic incidents, she was suffering from undiagnosed and untreated psychiatric disorders. The lack of counselling and referral to a psychologist or psychiatrist before September 2010 meant that whatever condition she had at the time remained well under her employer’s radar. Sergeant Spence’s evidence makes more sense in light of the medical evidence. He was right. She was failing at work. She was failing because of the disorders she was already suffering.

60. [276]

    Against this existing background, August and September 2010 were a particularly testing for the plaintiff. She broke up with Senior Constable Ben Crews and Senior Constable William Crews was shot and killed.

61. [277]

    Detective Senior Constable McNally was present at the scene when Senior Constable William Crews was killed. He was an excellent witness whose evidence the Court accepts. He gave a clear picture of the scene of Senior Constable Crews’ death in the basement of an apartment block in Bankstown. After Senior Constable Crews was shot, in the process of securing the area he rushed out of the basement. When he reached the ground floor level, he saw a group of uniformed police officers with guns drawn pointing up the stairs, where the offender was thought to be in an apartment on the first floor. Another police officer was covering the stairwell leading up from the basement/garage area, in case the offender was still below. Detective Senior Constable McNally says that at that time he spoke to a female police officer with blonde hair. This was undoubtedly the plaintiff. The conversation he recalls with this police officer was in substantially identical terms to the conversation she says occurred with another officer tasked at the scene. The matching content of that conversation leaves the Court with no doubt that the plaintiff was present on this occasion with her gun drawn, as she has said.

62. [278]

    After Senior Constable Crews’ death the plaintiff engaged in what was undoubtedly manipulative behaviour. A decision needed to be quickly made within the Bankstown LAC as to who would tell Senior Constable Ben Crews of his brother’s death. A number of senior police officers decided that they would go to the home of Senior Constable Ben Crews to communicate the news.

63. [279]

    The plaintiff witnessed this discussion and insisted that she should accompany them to Senior Constable Ben Crews’ home. But her personal relationship with Senior Constable Ben Crews had finished a few weeks earlier. By then he had moved back home to his wife and family. But the plaintiff insisted on using this occasion as a means of being able to go and see him. She untruthfully claimed to the officers in question – and they knew no better – that she was still in a relationship with Senior Constable Ben Crews. So she joined the team of police breaking the tragic news to Senior Constable Ben Crews. When the team arrived at Senior Constable Ben Crews’ home and he saw the plaintiff there, so unexpectedly for him, he retreated and started an angry conversation with her. The other police immediately noticed that Ms Sandstrom’s presence was clearly unwelcome to Senior Constable Ben Crews and his wife, something that in a rational state the plaintiff too should have well appreciated.

64. [280]

    She manipulated the circumstances of Senior Constable William Crews’ death to provide herself a platform to get closer to Senior Constable Ben Crews. At one level it might be said that she was just trying to be helpful. But that is not the explanation for what she did. She misrepresented her current relationship with Senior Constable Ben Crews to the other police to achieve this advantage.

65. [281]

    Ms Sandstrom was strongly pressed in cross-examination about her conduct on this occasion. The Court accepts it was misleading. But in the Court’s view, when all the circumstances are realistically considered, this incident does not bear upon her credit. Ms Sandstrom was then a young woman, who had been living for about five months in a domestic relationship, which had broken up no more than a few weeks earlier. Whatever be the inevitable emotional turmoil of that breakup, it was then compounded by her former partner’s brother’s sudden and violent death. This was not a moment in which Ms Sandstrom should be judged by high standards of detached judgment and cerebral rationality. The Court infers that at the time she was overwhelmed with the desire to comfort her former partner and was determined by her emotions to do whatever it took to offer that comfort, blinded to whether it was truly welcome or not. No person exercising rational judgment would have done what she did. The correct inference is that she was not acting rationally on this occasion. Her truthfulness in the courtroom is not to be measured against such an extraordinary irrational moment.

66. [282]

    Other Events and Family Reactions During 2006 to 2010. The Court accepts there were other events of a similar kind, to which the plaintiff was exposed during her police career, images of which she also has trouble cleansing from her memory. She says, and the Court accepts, that she is constantly reminded of the events mentioned here and some of these other tragic events by things she sees in the television news, or in the places she drives past. The plaintiff’s evidence at times dwelt upon the fine-grained detail of these incidents. She broke down in the witness box, when recounting some of them.

67. [283]

    Two family members of the plaintiff gave further perspective on Ms Sandstrom’s police experiences, her youngest sister, Ms Sarah Maronivic, and her mother, Mrs Sandstrom. Neither of them gave give oral evidence but their statements were available to the Court.

68. [284]

    In her statement Ms Sandstrom’s sister, Ms Maronivic, corroborates important aspects of her reactions to these events. Ms Maronivic recalls Ms Sandstrom struggling to cope psychologically with what she was seeing at work prior to the death of Senior Constable Crews. In addition to the incidents that Ms Sandstrom recounts, Ms Maronivic remembers others, including one where a person who Ms Sandstrom and her police partner were seeking to arrest, but who was high on the drug ice, overpowered Ms Sandstrom’s partner, grabbed her partner’s baton and lifted it as if to strike and then tried to take Ms Sandstrom’s gun. Ms Maronivic recalls this gave Ms Sandstrom a “wake up” call as to the dangers of the job.

69. [285]

    Ms Maronivic recounts Ms Sandstrom talking often and in detail about a number of the incidents that featured in Ms Sandstrom’s evidence, as she described them: the man who had gassed himself; the man suiciding by shooting; the woman suiciding in front of a train; and the domestic violence case.

70. [286]

    According to Ms Maronivic, this had an ongoing effect on Ms Sandstrom, who became, “more and more reluctant to go to work” at Bankstown LAC. Ms Maronivic, thought her sister felt “trapped” because of the high volume of serious incidents she was encountering and the difficulty in getting officers stationed at that Command for that reason. Ms Maronivic saw Ms Sandstrom losing her sense of empathy and dehumanising some of the people in the incidents she was describing. She observed her starting to react strangely in conversation and speaking inappropriately about graphic incidents in which she has been involved. She recalls Ms Sandstrom becoming highly sensitive to safety issues and blowing small risks out of proper proportion. And all of this was some time before the death of Senior Constable Crews and the end of Ms Sandstrom’s police career.

71. [287]

    Ms Sandstrom’s mother also noticed her daughter’s growing difficulties in coping at work. She said that Ms Sandstrom confessed to her at times, “I can’t keep doing this”. Her mother was concerned about Ms Sandstrom’s welfare, because she assessed she was not coping and had trouble getting up and going to work.

72. [288]

    Mrs Sandstrom remembers her daughter speaking about graphic incidents during her police service in social situations, and in front of her eldest child, in what Mrs Sandstrom judged was a quite inappropriate way. She noticed Ms Sandstrom withdrawing from her own son, so much so that Mrs Sandstrom began to compensate by taking on a greater mothering role to him.

73. [289]

    Mrs Sandstrom is also able to confirm memories of the major incidents that her daughter describes. She noticed Ms Sandstrom becoming hyper vigilant with respect to her son’s safety and her own. Her mother noticed she never stood with her back to the door, nor would she let her mother take her son into the Bankstown area. Like Ms Sandstrom’s sister, her mother observed that Ms Sandstrom was experiencing difficulties with her work for a substantial period of time before Senior Constable William Crews’ death.

74. [290]

    Ms Maronovic and Mrs Sandstrom’s observations are one indicator that Ms Sandstrom was having problems with the police for a number of years, prior to the death of Senior Constable Crews.

75. [291]

    Mr David Abbott, the plaintiff’s husband, met her in October 2012. He is able to give an account of the course of her life and health from less than a year after she left the police. He was a compelling witness, who gave an insightful account of his and the plaintiff’s daily domestic life.

76. [292]

    His evidence was challenged in several ways. Despite the skill with which those challenges were mounted, they failed. Mr Abbott’s narrative of his and his wife’s domestic life was filled with lived detail, and could not be shifted. His evidence provides a reliable platform for the Court’s findings, especially in the areas where the plaintiff’s evidence is strongly disputed. The Court regards Mr Abbott’s evidence as wholly accurate and reliable. The Court took detailed contemporaneous notes of its observations of his evidence, as it did with all the other witnesses.

77. [293]

    Mr Abbott’s testimony was overlaid with his own reactions to his wife’s condition and his concern that the proceedings had taken so long. He was distressed at his wife’s continuing lack of planning ability, her spontaneous episodes of emotional meltdown and consequent paralysis and her overall domestic ineffectiveness. But Mr Abbott had managed to weather the worst of his experiences by managing his wife’s situation with a combination of resignation and occasional exasperation, but balanced with his affection for her. He provided accurate, compelling and often poignant recollections of family life in their household.

78. [294]

    Mr Abbott first met Ms Sandstrom through online dating. In October 2012, when they met, she was 29, he had just left a difficult relationship and his father had only recently died. They immediately found rapport. By the end of 2012 they were living together and they have been together ever since. Their first child was born in early 2015. They married in April 2016. Their second son was born later that same year.

79. [295]

    When they first met, Mr Abbott had limited knowledge of Ms Sandstrom’s prior employment with the police. All he knew was that she had gone through “a bad experience at work, resulting in her departure from the police”. He also knew that by the time she had left the police she wanted to do volunteer work.

80. [296]

    But one night in mid-2013, Mr Abbott experienced an unexpected encounter with her former police career. They were driving to a motorcycle racing fundraising night in Ryde. By then he had been motorcycle-racing semi-professionally for about six to seven years. He had arranged to give two of his friends a lift to this event. One of them lived near Bankstown. Ms Sandstrom had indicated to him from the very beginning of their relationship that she was uncomfortable about visiting the Bankstown area. He did not enquire why but he accepted this at a general level but without knowing the consequences of a journey into that suburb.

81. [297]

    Mr Abbott picked up one of his friends, and they started to drive through Bankstown. Suddenly Ms Sandstrom became extremely emotional and began crying and shaking and calling out loudly. In uncontrolled distress she grabbed Mr Abbott, begging him to turn the car around, away from Bankstown. Alarmed, he and his friends tried to console her but with little success. He says, and the Court accepts, that from then her “demeanour did not change the whole night”. Summing up that evening in his own words, he said: “the beautiful, young girlfriend who I wanted to introduce to my friends was just a shell for the night”. Giving evidence in 2018, some five years later, he was still visibly affected by his experience of this confronting evening.

82. [298]

    That night he did not question Ms Sandstrom about her past police career. He was already aware, from her prior accounts, of some of the incidents that have been mentioned in these proceedings: the events at Sutton Forest and one of the male suicide aftermaths she had witnessed. But he realised there was “something more” going on. About a week or two later Ms Sandstrom opened up to him about Senior Constable Crews’ death. Again, when recounting what had happened, Ms Sandstrom became very upset. She explained to him that “her whole life had been turned upside down by that incident”. She said to Mr Abbott that she saw this incident as the reason why she had lost her employment, her friends, and her police contacts.

83. [299]

    This was the first of a number of similar landmark moments he recalls early on in their relationship. Another was about two years later in 2014, when they were walking together through a retail store in Taren Point, hand-in-hand, shopping for furniture. Suddenly Ms Sandstrom fell to the floor uncontrollably crying. She later explained to Mr Abbott that her “meltdown”, as he called it, had been triggered by her hearing the same song playing inside the store that had been on the car radio, when she was at the Sutton Forest incident. The Court accepts Mr Abbott’s account of his wife’s spontaneous and uncontrolled emotional reaction during this very public incident.

84. [300]

    Mr Abbott recalls other similar incidents involving his wife since then. He explained that unexpectedly running into ex-police colleagues would upset her “for days”. According to him, she prefers to shop at the Miranda Fair shopping centre, because she rarely runs into ex-police colleagues there.

85. [301]

    Mr Abbott gives a compelling account of the tribulations of their domestic life together. This is how he explained them. Ms Sandstrom generally does not want to leave the house, because she is “sad and depressed and just lacks drive”. She does not like being alone at home with the children, when he is away overnight for work. In that situation, or when he is working late, she often takes the children with her and stays with her parents, until Mr Abbott is back at home. His judgment is that she is not prepared to take “the responsibility of being accountable for the safety of the kids alone in the dark”.

86. [302]

    From time to time Mr Abbott has to deal with sudden calls from Ms Sandstrom at work, when she is “having a meltdown”. In those situations he has to “leave work and go home to assist” her at home. The last one of these meltdowns was, about six months before the trial, triggered by discussions between Ms Sandstrom and her lawyers about this litigation.

87. [303]

    The limits on Ms Sandstrom’s capacity to stick at and be relied upon for even minor administrative domestic tasks are painfully obvious to Mr Abbott. He cannot delegate to her the organisation of payments for family utility bills, car registration and other domestic expenses. According to Mr Abbott, “she does not handle finances well at all”. He accepts this is her situation although it clearly annoys him. He has endeavoured to understand what drives her inability to execute these basic domestic tasks.

88. [304]

    The picture which emerged here for the Court is that Ms Sandstrom cannot cope with the ongoing responsibility of planning even basic domestic financial and administrative tasks towards a mutually desired objective. In the Court’s assessment this is an especially acute problem for her, if she knows that others will be relying upon her to achieve that objective. The responsibility seems to frighten her.

89. [305]

    At a practical level Mr Abbott makes clear, and the Court accepts, that he and Ms Sandstrom do not go out to nightclubs, hotels or to dinner, except with close family members. According to Mr Abbott his wife simply prefers to stay home. As will be seen, MetLife sought to contend that Mr Abbott and Ms Sandstrom are socially active. But as will be seen, upon analysis, evidence is largely consistent with Mr Abbott’s testimony that their discretionary social dining is really only on occasions when she was surrounded by family members.

90. [306]

    Some arresting features of their domestic life stand out. He says, and the Court accepts, that he can come home from work at night and find her still in her pyjamas from the night before. She tells him on these occasions that she has been triggered into inaction by something she has seen or heard on the television or radio news, relating to police operations. He sees her paralysed, going into “a little shell”, unable to do any chores around the house or any planning for the family.

91. [307]

    This not surprisingly creates marital tension. Mr Abbott is attempting to run a demanding small business and needs reliable home support. His business is one which makes stainless steel benches, shelves and racking for the food industry. His solution is to employ a regular cleaner and a nanny to make up for his wife’s inability to do much around the house. A stay-at-home mother with two children under the age of four and a teenager going to university might well benefit from a nanny but would not necessarily need one. But this household has taken one on. In Mr Abbott’s judgment his wife is unable to cope without a nanny to assist her. Added to this domestic stress, Mr Abbott says that their intimate relationship has suffered badly and is non-existent when her darker moods are in charge, as he says they often are.

92. [308]

    Domestic life is unpredictable for Mr Abbott. His wife’s condition denies him many of the financial and recreational opportunities that he would like to have available to their family, were she more stable. The family lives solely on his income. He says, and the Court accepts, that he would prefer to have her earn a second income. He feels that living on his sole income significantly affects their joint borrowing capacity and diminishes their opportunity to buy and invest in better real estate. In his own mind it carries the burden that their financial future is wholly dependent on how many hours he alone can work a week in his role as a self-employed businessman and tradesman.

93. [309]

    He feels to a degree that he is a hostage to the vagaries of his wife’s medical condition. He explains, for example, that at any time he might get a phone call from her after one of her “meltdowns”, requiring him to race home and look after the children because she cannot and he must console her. He says that this then leads to a knock on effect at his work, where his employees have to “make up the slack” in his absence, which he believes “is not their role”. This upsets him both because it disrupts their family life and because it increases the costs in his business. He spoke to the Court with an authentic directness about the pressure that all of this imposes on him.

94. [310]

    Mr Abbott is an individual who looks towards the possibility of the financial betterment of his family. He feels that had his wife been able to continue in her previous well paid job as a policewoman, or in something similar, she would now be winning a substantial independent income for their household. He regards the family now as “stuck on a single income”. Moreover, he feels the constant burden of having to try and function as an untrained amateur psychologist, dealing with things that he believes she cannot erase from her mind.

95. [311]

    All of this evidence from Mr Abbott backs up with verisimilitude the plaintiff’s account of the travails of her own domestic life. The Court’s acceptance of her evidence is closely supported by the detail of his evidence upon the same mutual domestic activities.

96. [312]

    Mr Abbott was closely cross-examined by Mr Watson SC. He put to Mr Abbott that there was no need for Ms Sandstrom to work in his business, or independently, because he was doing well even without her providing for the family through a second income. It was put to him that, in the meantime, he was quite content to enjoy the benefit of her workers compensation payments.

97. [313]

    Mr Abbott firmly rejected this picture of his life. He explained that he had been largely responsible for achieving the relative financial stability that they had as a family by his working 60 to 80 hours a week, in his business. He says, and the Court accepts, that “I would rather not; I would rather be working 40 hours a week, work like everyone else.” He would prefer to avoid long hours: he normally starts at 6am at his factory where he works with a small number of employees on the factory floor.

98. [314]

    The Court does not accept the implicit inference behind Mr Abbott’s cross-examination that he: does not need his wife to work, does not really want her to work and is happy enough for her not to get a remunerative job outside the home, so that she can remain on workers compensation. His views are the exact opposite of this.

99. [315]

    Much of the plaintiff’s cross-examination concerned photographic and text entries on Facebook. She was confronted with the claimed inconsistency between her evidence of avoiding social and public contact and her appearance on some of the occasions represented in the Facebook entries, where she appears to be quite well groomed and interacting happily in company.

100. [316]

     But judging Facebook entries as an indicator of objective reality risks error. The plaintiff herself said that she puts her “best face” on when posting entries on Facebook and that the entries are not the person she always is. At one point in her evidence she gave an insightful explanation of being “not brave enough” to post on Facebook what she actually looks or feels like on days that she is unable to get out of the house, or even get out of her pyjamas during the day and where she feels that the great load of decision-making and planning for the day are all too much for her.

101. [317]

     In a similar case Robb J has made observations about the Court approaching social media posts carefully: Hellessey v MetLife Insurance Ltd [2017] NSWSC 1284 (“Hellessey”). His Honour’s observations in Hellessey (at [1003]) express a caution about the use of social media that is directly relevant to this case. There his Honour said:

102. [318]

     Dr Wilkins also pointed to the danger of drawing too much from social media posts. He pointed out that social media are a managed form of creating an impression, which is quite different from what happens when “you meet someone with your diary and make a date”. He pointed out that what matters is creating an impression rather than going on the date. Ms Sandstrom’s own evidence was that she did not go through with many of the arrangements that she apparently made online on Facebook. She spoke genuinely of the loss of friends due to her condition.

103. [319]

     The plaintiff herself said, “Facebook is not an accurate indication of anybody”. She further explained, and the Court accepts, “and whilst I try, I really try to feel normal and reach out because I am lonely, I find at the end of the day, I can’t maintain that. I avoid speaking to people and I lose friendships. I have lost friendships”.

104. [320]

     The defendant undertook surveillance of the plaintiff but the film was ultimately not tendered and provides no evidence against her to show that events that she was arranging on Facebook actually happened. The defendant prepared a comprehensive analysis of her Facebook posts and answers to questions about them but in most cases the Facebook posts do not clearly establish that social engagement with friends actually occurred. And to the extent that they do, the occasions are consistent with a non-threatening and non-challenging environment for the plaintiff.

105. [321]

     The plaintiff presents as a person who on paper is able to go to shops, interact with shop assistants, make small purchases of food and clothing, travel between shops, take her children with her on some of these journeys, and go out into the public places necessary to complete these shopping expeditions.

106. [322]

     The fact she can do these things was not clearly described in her early statements. Her capacity for public engagement has become more obvious as a result of the issuing of subpoenas for her bank and credit card statements and her Facebook accounts.

107. [323]

     But even when that additional material is taken into account, the picture that the plaintiff presents is mixed. The plaintiff says that these journeys into the public space are an immense burden to her and that she can barely cope with them, that she feels the need to flee from public spaces and from stressful situations, and that she does not wish to interact with people in those public situations. The question is whether her actual patterns of spending and public interaction fit with her story or not.

108. [324]

     Most of the transactions that the plaintiff undertakes are short. And they fulfil the description the plaintiff says: they appear to be minor items that she can pull out of the transaction at any time. Without venturing into the question of what is a normal level of purchase of fast food, the plaintiff’s purchases show consistent levels of purchasing fast food at every stage of her life, when she and her husband did not have young children and after they did. These purchases are at higher levels than might perhaps be expected in a well-planned household, where a substantial shopping expedition is undertaken once or twice a week to supply food for the week, with most of the weeknights being spent eating this purchased food at home. There are consistent levels of the purchase of fast food and short term impulse purchases shown in the plaintiff’s expenditure. This quite well fits what Mr Abbott says about his wife’s planning ability.

109. [325]

     When she is shopping the plaintiff feels trapped. When she was being taken through her banking evidence about her trips to the shops she said:

110. [326]

     There are indeed many strange things about the plaintiff’s shopping which tend to back up the idea that the plaintiff shops chaotically. If one takes her expenditure in June/July 2013 or between 1 and 4 October 2014, the entries typically show many random purchases of fast food and many single small purchases in different shops in the one day, consistent with her taking very cautious steps, making small purchases from which she could readily retreat. As she explained, “if I am there and something happens, one of the children are mucking up and my levels of anxiety peak, I just leave”. The numbers of small purchases on these sorts of occasions is consistent with this evidence. She says, and the Court accepts, she finds it “overwhelming to do a large shop”.

111. [327]

     The plaintiff said, and the Court accepts, that her husband needed to prompt her to go down to the shops. The Court accepts the plaintiffs’ evidence about her attempting to shop and how it becomes too much and she has to leave. She says, “if I have gone to the shops and gone to three or four shops that could be a half an hour exercise and that’s it for the day. I’ve had it” and again she says, “I don’t know how to describe the overwhelming the sensation of when it all gets too much. I just have to leave and go and then I have to try again another day”. This evidence is accepted.

112. [328]

     The Court asked the plaintiff if she wished to avoid public trips and just stay at home more often. She explained that her husband does not like shopping. That accords with his outlook: that he would prefer not to go shopping. So she could not do that kind of thing with him. But that means she feels the pressure to go and do some of the shopping herself. In my view she feels a sense of obligation to do what her husband wants. But these shopping journeys demonstrate her inability to do much sensible household planning to procure, for example, everything needed to supply a week’s meals.

113. [329]

     A sensible course for her would be to take a minimum number of well-planned trips to avoid her having unnecessary public exposure. But in answer to the Court’s questions on this subject, the plaintiff was not able herself adequately to explain why she could not undertake this kind of planning, to avoid public contact. The Court was left with the impression that this was theoretically possible, but her actual journeys outside the house, as demonstrated by the evidence of her spending, in fact show an apparently unstructured shopping habit.

114. [330]

     But the Court accepts the plaintiff’s evidence that there is another reason for these apparently unstructured shopping trips, which represents something of a compromise that is also consistent with what the court observed elsewhere in these reasons relation to her occasional overseas or domestic travel. The casual shopping that she does is showing to her that she can engage with the world on a short-term basis and have some social interaction, which she can provide some degree of social enrichment for her children. But she says that she knows she can withdraw from short-term unimportant transactions in shops quite easily; and therefore this kind of shopping is not particularly threatening for her.

115. [331]

     MetLife’s case is that she has no difficulty in going shopping and does not suffer from any form of agoraphobia. Mr Abbott directly contradicts this. His evidence on this subject is particularly important. He says, and the Court accepts, that he not only encourages Ms Sandstrom to go to Miranda Fair. But more than that, he actually “tells her to go shopping”. He pushes her out, both for her own good and for his. As he explains “when I come home from a long day I want to open the fridge and find some dinner and there is nothing there again and again and again, I say to her ‘can you [go shopping]’”. In one exasperated moment in his evidence he recounted a not uncommon discussion he has with his wife: “can you please get some dinner in the fridge, so that at least when I get home there’s something to eat”.

116. [332]

     Their domestic discussions about this issue have led to a compromise, which he explains in this way: “she feels safe at Miranda Fair”; therefore, he encourages her to go there. He explains in evidence that the Court accepts, that she protects herself on these shopping journeys: “she parks in the same place; she always parks in the pram spot next to the left. She goes into the lift, she makes her way to the Woolworths there; she feels comfortable there.”

117. [333]

     In response to his requests to his wife Mr Abbott explains that limited progress occurs: “she will go shopping when I tell her what we need – she needs to get some groceries”. But even in this account he is the one taking control over much of the planning and he identifies what needs to be purchased. This evidence explains much about Ms Sandstrom’s capacities. She is reluctant to go shopping, to the point of deeply disappointing her husband about basic domestic organisation. But when with his strong encouragement she is forced out of the house, she navigates her way through the outside world along the safe corridors she has constructed in her mind, to known waypoints such as Miranda Fair, to minimise the hazards she perceives.

118. [334]

     He was not surprised that she was shopping often. But he was sure it would not happen every week. Why it happened at all was clear to him. He explained it simply, “She can’t plan”. Even when she goes shopping she does not get what the family needs. He recounted that she reported back to him that, “she has done the groceries for dinner”. But the reality was different. He would have to go out and get “some chicken sticks, some mint sauce and some bloody bananas”. And she has to go back the next day because, as he explained, “I come home and go ballistic about why we have not got past this yet”.

119. [335]

     Mr Abbott’s evidence about his wife’s shopping journeys compels the conclusion that Ms Sandstrom has no present reliable capacity to plan for the future. When her evidence that she goes to the shops, “five out of every seven days”, was put to him, Mr Abbott’s perceptive response was, “[a] sane person doesn’t do that do they?”

120. [336]

     Mr Abbott’s evidence gave no hint that this lack of planning capacity in his wife was changing or improving over time. He had known her for six years before he and she gave evidence. He gave evidence on the basis that her behaviour exhibited essentially fixed characteristics. And the Court infers that the situation is static.

121. [337]

     Dr Wilkins points out that there is something of a misconception in the criticism of the plaintiff’s case, based on the fact that she undertakes shopping journeys and goes out to dinner with her family. Dr Wilkins says that Ms Sandstrom’s PTSD does not impose a restriction on her leaving home. Rather it “shows the way that people behave once they do leave the home”, with for example hypervigilance and avoidance behaviour. That part of her life has improved to a degree, from when she was originally heavily medicated under treatment from Dr Grace until 2012.

122. [338]

     Since her discharge from the police force, Ms Sandstrom has been on three overseas holidays. The first trip was to London in January 2013. Ms Sandstrom travelled with her son, Zachary, who was 13 at this time. They left Australia on 16 January 2013 and returned to Australia on 27 January 2013.

123. [339]

     The second trip was with her partner, Mr Abbott, to Niseko and Tokyo, Japan. They departed Australia on 28 February 2013, and returned on 10 March 2013. the plaintiff and her partner returned to Japan in March 2014, leaving Australia on 15 March 2014, and arriving back in Australia on 25 March 2014.

124. [340]

     The plaintiff has travelled interstate on a number of occasions including a trip to Queensland.

125. [341]

     MetLife’s case was that Ms Sandstrom’s overseas and interstate travel were inconsistent with her claimed social disabilities. But in the Court’s assessment the plaintiff’s travel patterns are to be understood in the light both of her support network and her personality.

126. [342]

     As to her support network, her husband and her mother are two central figures of security in her life. Her evidence that they provide security to her is accepted. They assist in making her longer journeys into public places less stressful. The Court has not seen Mrs Sandstrom, the plaintiff’s mother. But the Court accepts Mr Abbott’s evidence that he is highly attentive to her need for security and is an important point of backup reassurance in her daily life, although Dr Wong’s notes indicate there is occasional conflict between them. Ms Sandstrom says, and the Court accepts, she also relies on her sister socially.

127. [343]

     Objectively speaking, the plaintiff’s confidence in her husband is well placed. He is physically strong, financially a good provider and resourceful in being able to start his own business. His accepted testimony demonstrated that he was ever ready to sacrifice his own convenience to rescue his wife from her worst episodes.

128. [344]

     She feels safe in public places when accompanied by either of them. She explains her long distance travel to Niseko in Japan in particular as being possible because her husband was with her throughout the journey. And the same explanation is given for the domestic interstate travel she has undertaken by air to holiday destinations.

129. [345]

     Some of Ms Sandstrom’s domestic travel and travel within the Shire is also centred around the security that her mother provides in her life. Her mother is the trusted person with whom her eldest son grew up and in whose home she feels happy to place her two younger children. Most of the occasions on which she eats out at night in the local district are with her parents or with her husband.

130. [346]

     Aspects of the plaintiff’s personality are important in understanding her overseas travel. Her travel to London with her son was criticised as being inconsistent with her case. But in my view her overseas travel is in part explained by her approach to her disabling psychological symptoms. She is adventurous enough to try and fight them at times to try and lead as normal a life as possible with her family. The plaintiff’s personality can be judged historically as someone who will try and push herself. She chose a more professionally demanding career than most and joined the police. She then volunteered to join the even more demanding environment of the IRT. And after that she continued to push herself through a mounting series of psychologically damaging episodes of psychological trauma, unaware of what they were doing to her.

131. [347]

     So far as the trip to London is concerned the plaintiff said, and the Court accepts, that it was highly stressful. She said:

132. [348]

     In the Court’s view Ms Sandstrom’s personal history makes it not entirely surprising that she took the step of trying to push herself to go to London for the sake of her son. But her testimony about this trip, which the Court accepts, shows that the journey came at a high cost to her.

133. [349]

     The plaintiff did not seem to be overwhelmed by the public and formal nature of the court room. There were times when she became emotional and the Court had to adjourn or pause because she had dissolved into tears. But much of her evidence was conducted by quite focused and thoughtful responses to a sophisticated and moving cross examination. Highly experienced senior counsel for MetLife moved rapidly through some of his questions. It was quite evident that the plaintiff has quite high functioning intellectual capacity in that she was able to process those questions and answer them relatively quickly. Moreover she was able to follow directions to find documents in a large court book of some six volumes in which the documentary material was quite dense at times.

134. [350]

     While these things are very difficult to judge from two days in the witness box, she is potentially a candidate for one day undertaking further study to finish the Arts Degree that she started. The plaintiff showed composure in the witness box despite the public and formal nature of the evidence giving process. There were quite long periods where she showed a steady determination to focus on answering questions. She had a capacity to scrutinise, analyse, and respond to quite complex questions. She could carefully select the questions that she could not understand and say so. Many of the questions that she said she could not deal with were ones which generally, with respect to counsel, did have problems with them. But all of this was subject to unpredictable interruptions from her spontaneous reactions to unforeseeable emotional triggers.

135. [351]

     Her performance in the courtroom is on the medical evidence some basis to conclude that her agoraphobia has improved to a degree. The Court asked Dr Grace about this and receive the following answers:

136. [352]

     Dr Grace’s answer is part of the key to what was happening in the courtroom. No one was asking her in Court to take responsibility for the safety of others or for any task other than just answering the immediate question posed to her. And to the Court’s observation she no doubt felt a degree of security there because she plainly had confidence in her legal advisors. Dr Grace’s opinion should be accepted that she is better now than she was. But even despite that she endured a number of spontaneous breakdowns in the witness box that signpost what would be likely to happen to her in a workplace.

137. [353]

     But it is suggested by MetLife that there is an overlay of manipulation in the plaintiff’s conduct. Some features of her evidence might support this contention. Firstly in the court room, it was difficult to discern any pattern associated with the times that she became emotional. Some were clearly associated with counsel asking her to recall the traumatic events she said themselves were the source of her PTSD. But she was able at other times to give evidence about these events in considerable detail without breaking down. This at least shows that she is not always triggered by the same cues about the past.

138. [354]

     Another part of her emotional instability in the court room was associated with her being confronted with difficult facts showing account to be improbable, that she could not explain, followed by her retreating into highly emotional responses and paralysing her evidence at the very point where she could not explain the apparent inconsistencies. MetLife contended that the Court should infer from this kind of conduct that she was untruthful.

139. [355]

     But that is not the inference the Court draws. Some of her strong responses and emotional turmoil were in response to cross examination about events in her police career that turned out to have been advanced in cross examination on a wrong factual basis. She was being wrongly accused of untruthfulness, where now the Court has found in these reasons her version to have been quite correct. Her breaking down because she felt uncomfortable with the cross examination is not a sound basis for inferring untruthfulness in this case.

140. [356]

     Dr Wilkins also had a compelling explanation for how Ms Sandstrom might be able to perform in Court with some degree of concentration, despite her PTSD. The Court accepts his explanation, which was provided in answer to a question from the Court about her performance in the witness box, as follows.

141. [357]

     Dr Wilkins also thought that the worst of the breakdowns that Ms Sandstrom had in the witness box could well have been the beginning of dissociative episodes, and the lesser ones emotional breakdowns. But according to him she has a determination “not to actually relapse but to go forward and do the best she could”. The Court agrees from its own observations of her that this is what she was trying to do.

142. [358]

     The best explanation for Ms Sandstrom’s overall behaviour, in the Court’s assessment, is that she is profoundly damaged by her chronic PTSD but is waging a constant all-out struggle against it. The Court witnessed graphic examples of that struggle during her testimony. She was not “bunging it on”, or “faking sobbing” as was put to Dr Wilkins. The Court infers from the fact that these breakdowns occurred in the court room that the same struggle happens in various forms, as she says it does, in the rest of her life in a wide variety of social situations.

143. [359]

     At night Ms Sandstrom and her husband eat out with some frequency. At one level this is an indication of her preparedness to go into public spaces. On the other, two features of her evidence are clear: (1) she is often dining with family, her husband, her parents or her in-laws; and (2) the frequency of this dining out is indirect evidence about the lack of proper planning in her household for purchases to allow her to stay at home, cook and eat. Overall these seem to be reasonably non-threatening occasions where she has an opportunity to enjoy herself outside the home when she is totally surrounded by supportive family members.

144. [360]

     Mr Abbott agreed that he typically pays the bills for the family for hotels and outings, “depending on the budget at the time”. MetLife sought to infer from this that the family may go out far more than is shown by the financial records that Ms Sandstrom produced. But such an inference is weak. Mr Abbott himself heavily qualified his answers on the subject, saying there is “only a small amount of time that we spend in restaurants”. And when they do, in my view, they are often just out with family.

145. [361]

     Before their first child was born and they lived in Cronulla they would go out to restaurants. There were many on their doorstep. The Court accepts his evidence that even at this time before the children were born, as Mr Abbott said, going out to restaurants was “not on a regular basis” and “not a lot”.

146. [362]

     Looking back at the last 12 months before he gave evidence, Mr Abbott said that if he and Ms Sandstrom go out to dinner with the children it is a quick turnaround, “it will be just so we would not have to have it delivered or so that – so I would not have to cook.” Another signpost to the profile of their domestic life is that Mr Abbott often carries the burden of planning and executing the daily family meal preparation and cooking. He cannot rely upon his wife’s planning and execution skills.

147. [363]

     Mr Abbott and Ms Sandstrom never go out to nightclubs or parties. And the Court accepts his evidence that “we declined social events more than we go to them”. Mr Abbott’s written statement of evidence said “we never go out”. Whilst strictly untrue, as he admitted in cross-examination, this statement was not intentionally misleading. But expresses his outlook: this is what his life feels like to him, given the extra burden of domestic duties he undertakes.

148. [364]

     His outlook has been formed partly as the result of Ms Sandstrom’s difficulty with socialising with people beyond their immediate family. As Mr Abbott described: “I have lost touch with a lot of my wider friends since being with Bec”, because “Bec does not like going out, she does not like crowds, she does not like being out late at night”. These unfeigned and spontaneous responses from Mr Abbott are an accurate account of life in their household. The cross examination moved to suggest that the real culprit for this situation was that this young couple now had two young children aged one and three. But his answer to this, that the Court accepts as accurate, was, “it has got nothing to do with our children”.

149. [365]

     The darkness scares Ms Sandstrom. Mr Abbott says that if he is going to be working at his factory any later than sunset, Ms Sandstrom will take the children home to have dinner with her parents and she will wait for him to send her a text message, or call, to let her know that he is coming home. They agree upon a time “that I will be home so that I am home before she is”. Their current residence is surrounded by the National Park; and “she likes to make sure that I am home, the house lit up, for her to enter safely”. Ms Sandstrom has pervasive fears of being alone in the dark. The Court accepts that she lacks capacity to take sole responsibility for others (even her own children), when those fears conquer her.

150. [366]

     Ms Sandstrom faces many triggers for her episodes of emotional instability. One of them is people in uniform, who remind her of the police. In testimony the Court accepts, Mr Abbott corroborates this. He says she reacts badly to dealing with security guards on the train, at airports and at shopping centres. Merely having to deal with a security guard can trigger in his wife a highly emotional episode, in which she breaks down and is unable to negotiate with the outside world, going into what he describes as “a dark hole”. So many are such occasions, he finds it hard to remember them all. He compensates for this weakness. On the few occasions that he and she have been to an airport together he does “all the communicating with any security” on his wife’s behalf.

151. [367]

     One of the reasons that her trip to London was so stressful was that she had to undertake such dealings without assistance. He shields her from direct communication with security personnel because she has communicated to him the stress that she went through on her trip to London, a few months after they got together.

152. [368]

     These triggers reach into the daily life of the plaintiff’s family. According to Mr Abbott, in evidence which the Court accepts, Ms Sandstrom does not want him to drive with both children in the car. He understands this springs in part from the aftermaths of car accidents she has seen. So, he drives the younger children, one at a time. She stays at home with the other child.

153. [369]

     In Mr Abbott’s narrative, Ms Sandstrom’s situation is so bad that it affects all three of her children. She is remorseful about the effect this has on them. But according to Mr Abbott it has had a destabilising effect on Ms Sandstrom’s oldest child, for whom Mr Abbott is guardian.

154. [370]

     According to Mr Abbott, Ms Sandstrom has a particular fear of water, in rivers that she does not trust. Her fear of water is not universal, but appears to be related to the river incident, at the Georges River, during her police service. This fear does not involve a universal aversion to water. She was able to go in Mr Abbott’s company to the Great Barrier Reef, and into the water. As Mr Abbott explained “we’d gone out on a reef boat tour to go and look at the reef, and she agreed that with the suit that they provide that she would be happy to go in and have a go in the water, as long as I was by her side”. But she is highly dependent upon Mr Abbott in these situations, and even more widely: “she seeks reassurance [from him for]…just about everything”. When these situations are properly understood, taking Ms Sandstrom’s self-protection measures and actual anxiety into account, they are not inconsistent with her case.

155. [371]

     Overview. Dr Anita Wong has been the plaintiff’s treating doctor since 2001. Dr Wong referred the plaintiff to see a psychiatrist, Dr David Grace, whom she saw between September 2010 and August 2012. The plaintiff commenced seeing another psychiatrist, Dr Gregory Wilkins, in April 2014, and continues to see him on a regular basis.

156. [372]

     The plaintiff saw Ms Kim Malone, a clinical psychologist, on a number of occasions in 2012. These sessions were paid for by Employers Mutual Limited, Treasury Managed Fund.

157. [373]

     The plaintiff was also admitted to St John of God Hospital in Richmond on two separate occasions. On the first occasion, she was admitted as an inpatient to take part in the hospital’s PTSD program, between 28 September 2011 and 18 October 2011. On the second occasion, she was re-admitted following an apparent crisis, and remained at the hospital between 3 January 2012 and 17 January 2012. On both occasions she was under the care of Dr John Westerink, senior consultant psychiatrist.

158. [374]

     When Dr Grace began treating the plaintiff, he prescribed a number of medications, namely Seroquel, Yasmin, Zoloft, and Xanax. Following her first inpatient stay at St John of God Hospital, her medications were listed as Yasmin, Valium, Pristiq, Innovane and Xanax. Her medications upon her second discharge in January 2012 were Pristiq, Yasmin, Diazepam, Innovane and Alprazolam. The plaintiff then ceased taking medication; she re-commenced taking medication in June 2012 and reported that she had ceased taking medication in late 2012. The plaintiff did not commence taking medication again until March 2018, when she had ceased breastfeeding her youngest child. At this time, Dr Wilkins prescribed her on a 5 mg daily dosage of Lexapro. But the plaintiff did not ultimately commence this medication because she had fallen pregnant.

159. [375]

     A number of medical and allied practitioners gave evidence and were cross-examined at the trial. These were Dr Anita Wong, Dr David Grace, Dr Mark Kneebone, Dr Richard Mattick, and Dr Gregory Wilkins. The practitioners all considered that the plaintiff was suffering from PTSD. But there were divergences in opinion as to aspects of her psychological profile and her long-term prognosis. The plaintiff was also assessed as suffering from depression and generalised anxiety.

160. [376]

     Symptoms of the plaintiff’s psychological state varied over time. They included at times intrusive memories and flashbacks of traumatic scenes encountered in her police work, panic and distress when exposed to reminders or cues relating to police work, hyper-arousal, and some agoraphobic avoidance. She reported having difficulties with travel, socialising and self-care, and lapses in memory and concentration.

161. [377]

     Dr Wong’s Opinion. Dr Anita Wong is Ms Sandstrom’s general practitioner. She came across to the Court as an empathetic and careful doctor with good judgment. She took complete histories from the plaintiff, which were recorded in the computer system of her practice and which helped the Court to have a thorough understanding of the course of the plaintiff’s engagement with her, including her dates of presentation, her history upon presentation, her symptoms, diagnoses and prescriptions.

162. [378]

     The Court has no reason to doubt either the integrity of her evidence or the reliability of her account of what the plaintiff said to her. Despite Dr Wong’s professional empathy for her patient, Ms Sandstrom, she was also able to stand back and give objective evidence about her. She always expressed her genuine opinions about the plaintiff. She was confronted at times in cross-examination with differences between the history given to her by the plaintiff and other evidence as to what the plaintiff may have been doing. She was asked to assume whether her opinions would change with the extra information given to her. She was prepared to revise her medical opinions to a limited degree when different assumptions were put to her.

163. [379]

     Dr Wong provided a number of medical reports concerning the plaintiff to a number of insurers and public authorities covering the period from September 2010 to December 2013. These reports and Dr Wong’s medical notes provide important contemporaneous insights into Ms Sandstrom’s symptomatology and state of mind. A few examples of this can be given.

164. [380]

     Dr Wong’s notes of 10 September 2010, two days after the death of Senior Constable William Crews, record Ms Sandstrom as “distraught and teary and not sleeping for 48 hours”.

165. [381]

     Dr Wong’s clinical notes of 10 September 2010 state in full the following:

166. [382]

     Dr Wong was cross examined to suggest that Ms Sandstrom’s initial report of the effect of Senior Constable Crews’ death upon her was less significant than the relationship break down which was mentioned first in the consultation. But the Court accepts Dr Wong’s evidence when she repelled this suggestion. Dr Wong explained that that was just Ms Sandstrom’s ”opening statement” but she made clear that the relationship break down was “certainly not the bulk of her consultation or the complaint that she was making”.

167. [383]

     On the next occasion, Dr Wong referred the plaintiff to a psychiatrist, Dr David Grace.

168. [384]

     A medical report of Dr Wong to the police of 30 September 2010 describes her mood as “low mood, heightened anxiety, panic symptoms”. And the plaintiff is reported as having “hallucinations”. In a report of 8 April 2011 to FSS Dr Wong described the plaintiff symptoms as “anxiety, hypervigilance, parasomnia, depressed mood and grief since incident of 8 September 2010”.

169. [385]

     On 6 May 2011, Dr Wong’s clinical notes indicate that Mr Joshua Cratchley, who was the plaintiff’s financial advisor, was to call Dr Wong, once the plaintiff gave her written authority. On 9 May 2011, the clinical notes state:

170. [386]

     Dr Wong saw the plaintiff again on 30 May 2011. On the following consultation, on 27 June 2011, the clinical notes provide the following:

171. [387]

     On 27 June 2011 she gave her medical report, the conclusion of which was almost identical in terms to that of Dr Grace of 24 June 2011. It was suggested to her in cross-examination she had changed her opinion about the plaintiff because the plaintiff had brought a financial adviser to a medical consultation with her. The inference raised by the cross-examination was that at the consultation on 27 June 2011 the financial adviser, Mr Josh Critchley, had wrongly influenced Dr Wong into changing her opinion about the plaintiff.

172. [388]

     That contention against Dr Wong is not made out. Dr Wong did change her opinion about the plaintiff but not because of the financial adviser. She did so, as she explained, because of a medical report that had been received from Dr Grace, in whom Dr Wong had great confidence and to whom Dr Wong had referred many patients with a need for psychiatric treatment over the years. Dr Wong adopted Dr Grace’s opinion about the plaintiff. Dr Wong made the not unwarranted assumption that Dr Grace had had much more time than her to interview Ms Sandstrom, take a history, and apply more specialised attention to the patient.

173. [389]

     In a report to FSS of 1 August 2011 Dr Wong describes her initial symptoms as “distraught, teary, terrified, cannot sleep, visual and auditory hallucinations, anger” and her then current symptoms as “relives events triggered by TV, sirens, seeing fellow officers, hypervigilance, panic symptoms, catastrophizing”. And on the question of work capacity Dr Wong says in the same report that Ms Sandstrom was in “the state she cannot resume work in her own or other occupation. At present she is not even able to undertake ADL [activities of daily life]”.

174. [390]

     Finally, in the report in respect of the plaintiff’s claim dated 12 August 2013, Dr Wong says that Ms Sandstrom “is able to drive but she has taken considerable time to reach this milestone… and drives any familiar routes and short distances from home”. Dr Wong also refers in this report to Ms Sandstrom’s “agitation and distress” with situations involving lack of familiarity to her. Dr Wong records the plaintiff decompensated on more than one occasion during a recent overseas trip (to London) with her son and that she “relied on her son to sort out issues that she felt as a parent she should have attended to. She was disturbed by her own inability to concentrate or undertake tasks that she would previously have been capable of.” These are accurate histories that accord with the plaintiff’s own evidence about her distress and withdrawal during the trip to London.

175. [391]

     Dr Wong was asked about Ms Sandstrom’s trip to London with the side trip to Paris and the two trips she has taken to Japan. She was cross-examined about the social media entries relating to pictures taken of Ms Abbott on her journey to London showing the family looking happy. The post in question appears to be a communication from Ms Sandstrom to her husband:

176. [392]

     Dr Wong was asked whether this post was consistent with what Ms Sandstrom was telling her about her trip to London. Dr Wong had a good recollection of what the plaintiff had said, answering the cross-examiner, “I knew she was able to get out but I thought that she really struggled emotionally with getting out”.

177. [393]

     The Court accepts the accuracy of what Dr Wong said the plaintiff reported to her in answer to these questions. And even though Mr Abbott responded to this post by saying “you guys look so happy…enjoy every minute”, all that really means is that Ms Sandstrom had given him the impression that she wanted to give him without necessarily sharing the struggles that she was going through.

178. [394]

     Dr Wong emphasized in cross-examination that she did not realize that any of the psychiatrists had diagnosed Ms Sandstrom with social phobias but she explained “I thought that her difficulty with travelling was actually that she had considerable anxiety with travel”. This is consistent with both Dr Grace’s and Dr Wilkins’ analysis of the plaintiff’s anxiety disorder.

179. [395]

     Dr Wong was also cross-examined about Ms Sandstrom’s CBA credit card records in early August 2012, showing her going to shopping centres in Miranda, Hurstville, Riverwood and visiting a cinema, a women’s fashion store, a Japanese food outlet, K-Mart and a convenience store. Although she agreed that appeared to be inconsistent with a person who had a phobic anxiety about driving a car, in the Court’s assessment, Dr Wilkins’ analysis is that some driving is open to her but it is still a very controlled process of staying within safe corridors. To the extent there is any difference between Dr Wong and Dr Wilkins on this issue the Court prefers Dr Wilkins.

180. [396]

     Dr Wong appears not to have taken notes that indicate to her that she was told about the plaintiff’s trip to Japan in early 2013 or a trip to the Hunter Valley at about the same time. But that is not a basis to infer this trip was concealed from Dr Wong. She was certainly informed about the trip to London.

181. [397]

     But the difficulty in using that kind of material in cross-examination of the medical practitioners such as Dr Wong is that it does not explain the support structures that were put in place to make the trip possible. It is very clear from Mr Abbott’s evidence that when they travelled he takes control, drives her and shields her from unwanted triggers to protect her.

182. [398]

     Finally, Dr Wong recorded that Ms Sandstrom’s general practitioner consultations about her psychiatric condition had declined in 2016, 2017 and 2018 from levels in earlier times. But this is not a basis to infer that Ms Sandstrom’s condition has dramatically improved. She is still regularly seeing Dr Wilkins and receiving treatment from him.

183. [399]

     Dr Wong was asked whether she would withdraw her certification in her letter of 27 June 2011 in light of the cross-examination of her. In answer to a request to withdraw the final paragraph of the letter she said, “I can’t really make an assessment of how a patient is going to perform in a job just because she has been out shopping. I don’t understand why you’re making that connection”. The Court agrees with Dr Wong about the limited assistance that evidence about the plaintiff’s shopping gives to assessments about her working capacity. But Dr Wong did agree that she would need “further evaluation”. In the Court’s view, that further evaluation has been done and is being done on a regular basis by Dr Wilkins.

184. [400]

     Dr Grace’s Opinion. Dr David Grace was an excellent witness and a thorough medical practitioner. He saw the plaintiff on 18 occasions between 27 September 2010 and 14 August 2012. He ceased to treat her after that, when Dr Greg Wilkins took over her treatment. Dr Grace gave his final report about her on 20 September 2013, 12 months after he had last seen her. That report summarises her symptoms and his recommended treatment at her various visits between 2010 and 2012. The Court accepts all his evidence.

185. [401]

     Ms Sandstrom’s treatment with Dr Grace did not end in a very orderly way. As he described it, she “just did not return”. He agreed this was at a time that he was “thinking there was improvement” in her and he was discussing the possibility of future employment with her. He set out his opinion about her working towards future employment in the consultation notes he wrote about his last consultation with her on 8 June 2012 as follows:

186. [402]

     Dr Grace suggests in this passage that undertaking forms of voluntary work, or self-employment, may alleviate the stresses that she experiences from being “answerable to others”. Dr Grace was an impressive witness with an optimistic bent who tries to get his patients into work, if possible. His view is that it is “in almost everyone’s interest to work”. He said “I believe it is healthy thing if you can do it and so… I am trying to move people towards working because I believe despite how they might feel about it, it’s in their interest in the long term”. But when he last saw Ms Sandstrom, he described his expectation about her future employability as “my hope”. His caveat to this was that “things can fluctuate”. In the Court’s view this evidence was not so strong as to suggest that when he last saw Ms Sandstrom that her future employment should be realistically contemplated.

187. [403]

     Dr Grace’s opinion was that her anger is “close to the surface” and she would therefore need future employment to “be in a non-confrontational environment where she receives guidance but is not answerable to others”. This is because “it would not take much to provoke its explosive external expression”. This medical opinion of Dr Grace is consistent with the Court’s assessment of Ms Sandstrom based on her own testimony and that of Mr Abbott.

188. [404]

     To the extent Dr Grace’s opinion does suggest the possibility of improvement; his own evidence qualifies that, because of the transition occurring at the time that he saw her. He “was hoping” in 2013 that once she knew she did not have to work with the police any longer that a pattern of improvement would emerge and she would have a “fresh start”. But when he was clearly confronted with the question of whether “she has got a real chance of taking up useful employment if she is motivated to do so, do you agree?” he said “not at that stage she didn’t” but “that’d be my hope”, because she potentially had another 30 years of working life ahead of her. But he said that he really had “no evidence” for that “hope” and at the present time predicting her employability would just be “guesswork”. In the Court’s view Dr Grace’s evidence here indicates the possibility of her future employment is speculative at best.

189. [405]

     Dr Grace explained that Ms Sandstrom had reported to him in May 2012 that about a month previously she had started a relationship with a man called “Gavin” and had made a decision to cease her medication at the time and was “experiencing an increase in her symptoms as a result of the cessation of the medication”. But he noted that she “was determined to get through this without recommencing the medication”. Dr Grace’s observations here capture the determined side of Ms Sandstrom’s personality, which the Court observes elsewhere in these reasons explains some of what might otherwise be seen as conduct inconsistent with her claimed symptoms. In the Court’s view she will attempt challenging tasks despite her symptoms but, as she explained, will suffer the consequences for having pushed herself.

190. [406]

     It was suggested to Dr Grace that one of the principal stressors Ms Sandstrom had suffered at the end of her police career was her relationship breakup with Senior Constable Ben Crews. He agreed it was part of the background of the various stresses upon her but the Court accepts his answer that it certainly was not the “principal” stressor on her at the time.

191. [407]

     In Dr Grace’s final report of 20 September 2013 he was asked a series of questions by the workers compensation insurer including one (Question 3) as follows, “Could you please provide the prognosis for Ms Sandstrom in regard to a return to work or appropriateness for retraining?” To that he gave a two paragraph answer. The first paragraph, which presented a basis for Mr Watson SC to cross-examine Dr Grace, was as follows:

192. [408]

     His answer is then completed with another paragraph which substantially reproduces the paragraph already cited from this report in these reasons. This additional paragraph heavily qualifies his answer that a return to work was “an achievable outcome”. Dr Grace had only made a conservative prediction that “self-employment or voluntary work with children or elderly people” would reduce the risks of explosion of her anger. In my view these written answers and his later oral evidence about them are not a basis to deploy his opinion to infer that she is realistically capable of gainful employment. As to Dr Grace’s comment about the possibility of self-employment, the Court observes that in any form of sustainable small business, responsibility to customers or clients is probably difficult to avoid. Dr Grace explained the same thing in his oral evidence, “even if she was self-employed and she had an irritable customer, God knows how that would have gone at the time”. In effect in this evidence Dr Grace was taking this option off the table.

193. [409]

     Towards the end of Dr Grace’s cross-examination Mr Watson put the following questions to him and receive the following answers:

194. [410]

     But that answer does not change the fundamental thrust of his evidence about the risks for her at work. And by the cross-examiner’s tactical choice “some form of useful work” was not explored further. That expression is consistent with the volunteer work he had mentioned that was really all that was on the cards for her as an experiment in the near to medium term.

195. [411]

     Dr Grace was shown the pattern of the plaintiff’s expenditure as demonstrated by her CBA credit card account for the month of September 2013, the same month in which he gave his last medical report. He agreed that on the assumption that she was the one using the card, the entries show that she was out of the house using the card about five out of every seven days at shops and shopping centres. The expenditure demonstrated was seen in the analysis of this part of the plaintiff’s evidence, that she was conducting transactions in a wide variety of shops, including supermarkets, clothing stores, department stores, hardware stores, newsagencies, liquor stores and fast food outlets.

196. [412]

     He agreed that on the assumption she was a user of the card that she was “fairly active”. But he resisted the simple conclusion that this meant that her condition had alleviated. By way of explanation he mentioned a number of variables to be considered that would qualify the drawing of such a conclusion, about some of which the plaintiff has given independent evidence. The first of these was her state of mind. The Court accepts his evidence that “I still need to know the state of her mind… You’ve got to ask her, because I do not know what she was thinking during this. It might mean what you say… But it could mean other things.” Court accepts this is the right approach and that one cannot judge these journeys without ascertaining what her anxiety levels were.

197. [413]

     Dr Grace also mentioned other variables such as whether she was accompanied by children or other adults, whether she made careful choices to limit parts of the journeys so she felt safe and was not exposed to the fear of being trapped, whether shopping was essentially local or not, and how much effort was involved in actually getting out and making the journey in the first place. Dr Grace also mentioned that even the driving to these shopping destinations did not necessarily demonstrate that her condition had alleviated. He explained that in the condition of anxiety “some people cannot drive a car at all but for others they can drive and some in areas where they know all of the exits but cannot drive in areas where they feel we could get lost. Getting lost is a fear because they can’t escape”.

198. [414]

     As is seen elsewhere in these reasons, from Mr Abbott’s evidence, Ms Sandstrom does journey along well-established paths where she feels safe. And the objective CBA credit card evidence put to Dr Grace shows that from her home address in Riverwood many of her journeys were to her closest shops and shopping centres in Roselands-Miranda, Westfield-Hurstville, Peakhurst and Riverwood in some into the nearby Shire of Cronulla Sutherland, in which she has lived and with which she is very familiar.

199. [415]

     At another level, Dr Grace gave a helpful explanation of the relationship between Ms Sandstrom’s PTSD and conditions such as agoraphobia from which she claims to suffer. He explained that her PTSD was “always there”, it being an anxiety disorder of a particular kind. He explained that agoraphobia is an anxiety disorder of a particular type as well, and that these, and generalised anxiety disorders, “can show themselves in different ways, they can morph from one to the other”. But in her case when the triggers occurred from her PTSD, she was sometimes having panic attacks, where “you relive [traumatic events] and you experience, you know, intense anxiety”.

200. [416]

     Dr Grace’s explanation of the enduring substratum of Ms Sandstrom’s PTSD, with the variation of anxiety symptoms, tended to blunt the thrust of Mr Watson SC’s cross-examination to the effect that her shopping journeys must demonstrate that her PTSD was being alleviated. Dr Grace was prepared to accept in cross-examination that aspects of her symptomatology had improved. But he did not resile from the position when he last saw her that her PTSD was still present.

201. [417]

     Dr Grace covered in his testimony the subject of whether any easing of Ms Sandstrom’s symptoms might indicate a general pattern of improvement in her condition. On this question he was cautious and said that “sometimes it can fluctuate” but the improvement would have to “continue over time” to be satisfied that was an improvement to be considered. He explained that the best person to speak to that was a current treating doctor rather than himself.

202. [418]

     Dr Grace dealt in cross-examination with his medical reports that have already been dealt with in Stage I. First, he explained that his medical report of 24 June 2011 was the product of a request that Ms Sandstrom made of him at a consultation that same day. He was asked to reconcile the opinion that he expressed in that 24 June 2011 report with the opinion that he expressed in answer to question one in his questionnaire style medical report on 9 March 2011.

203. [419]

     He explained that both were his genuine opinion and that he did not perceive a contradiction between them, even though it may look as though that there might be a contradiction. He explained that his 9 March 2011 affirmative answer to question one is to be explained by the fact that Ms Sandstrom might perhaps be able to do some form of manual labour but that when it came to his 24 June 2011 opinion he interpreted the question that such basic occupations were not gainful employment for which she was “reasonably qualified” and that he thought that everything she could otherwise readily undertake would have some risky (and therefore to be avoided) occupational relationship with policing or security and that she would therefore need retraining before she would be employable again. In my view Dr Grace’s interpretation of the question asked of him on 4 June 2011 was not legally incorrect and bears directly upon the issue before the Court.

204. [420]

     As to the future, one aspect of Dr Grace’s evidence seems to indicate that it may be hard to help improve her PTSD given the particular characteristics associated with PTSD that she exhibits. Dr Grace explains that “one of the factors that cements in the PTSD” is anger and resentment. He identified her anger about how she had been treated, which also emerged from her own oral testimony: as Dr Grace said, her “anger specifically, the things she talked to me about were her unfair treatment with the bosses”. In the Court’s view, based on Dr Grace’s evidence, this is a feature of her PTSD likely to inhibit her recovery.

205. [421]

     Dr Gregory Wilkins’ Opinion. Dr Gregory Wilkins commenced treating Ms Sandstrom in April 2014. The referral to him was initiated by the plaintiff herself rather than Dr Wong. But that is not remarkable. Dr Wilkins provided four reports in relation to her medical history, her current treatment and her prognosis and her employability. These reports were respectively dated 19 June, 3 October 2014, 10 February and 18 February 2016.

206. [422]

     He gave oral evidence which was challenged in a vigorous cross-examination that in substance alleged he was biased against MetLife. The Court regarded him as an excellent witness well able to defend his medical opinions about the plaintiff and more generally. The Court accepts his evidence. Mr Abbott also made clear that Ms Sandstrom was compliant with the treatment of her given by Dr Wilkins, in whom she has great trust. The Court accepts that Ms Sandstrom has been following Dr Wilkins’ advice.

207. [423]

     Dr Wilkins’ primary opinions about the plaintiff’s prognosis are set out in his reports on 19 June 2014 and 10 February 2016. Compared with all other medical reports, his intermediate report of 3 October 2014 and parts of the other reports contain an unusually detailed record of the traumatic events of Ms Sandstrom’s police career, showing his close attention to the detail and impact of those events.

208. [424]

     The relevant prognosis and conclusion set out in Dr Wilkins’ report of 19 June 2014 is as follows:

209. [425]

     The relevant prognosis and conclusion set out in Dr Wilkins’ report of 10 February 2016 is as follows:

210. [426]

     These opinions directly support the conclusion that Ms Sandstrom satisfies the TPD definition in both policies. But these opinions were strongly challenged. His cross-examination focused on a number of themes including his alleged bias and the possibility of treatment to improve and alleviate her symptoms.

211. [427]

     The Court accepts that Dr Wilkins is an experienced clinician in the management of chronic PTSD. He has given supportive therapy to Ms Sandstrom. He distinguishes supportive therapy from empathic therapy or psychodynamic structural therapy, all of which can be classified as psychotherapy.

212. [428]

     He was challenged as to why he had not attempted to apply to her trauma focused cognitive behaviour therapy (“TFCBT”) and eye movement desensitisation and reprocessing therapy (“EMDR”). He made a decision not to provide progressive exposure to past traumatic material because he decided that would not be appropriate due to her reaction in the clinical environment. He assessed Ms Sandstrom as someone who is likely to dissociate in the clinical environment and that TFCBT was contraindicated for her. The Court accepts that it is his genuine opinion that it would be negligent for him to persist with such treatment in her case. He also rejected EMDR on the basis of her propensity to dissociate and “move towards a psychotic event”, which he wished to avoid. These therapies involve the patient confronting the past traumatic material which he says, and the Court accepts, carries with it the risk of a dissociative episode.

213. [429]

     The cross examination on this issue cited against him research and recommendations of Australia’s National Health and Medical Research Council (“NHMRC”), the British National Institute for Health and Care Excellence (“NICE”), the American Psychological Association and the Cochrane. Collaboration, all of which Dr Wilkins agreed favoured TFCBT and EMDR as preferred therapies for PTSD. But Dr Wilkins was critical of the population base of the research studies, citing the need to distinguish between studies between civilian and military/police populations.

214. [430]

     Dr Wilkins pointed out that 30% of the patients who have PTSD do not respond to TFCBT and EMDR and are treated with supportive psychotherapy, neuromodulation. He accepted that trauma focused therapy works in a large percentage of PTSD patients and those results will report across many studies. But in his opinion many PTSD patients do not fall within the populations of those studies and are not taken into account in the guidelines. Dr Wilkins is firmly of the view that Ms Sandstrom is contraindicated to those treatments which are not appropriate for her case.

215. [431]

     Nor is Dr Wilkins confident that a return to the high levels of medication given to Ms Sandstrom in her first 18 months by Dr Grace, should be reinstated as part of her treatment now, because of the extent to which they reduce her day-to-day functioning. The only medication he would recommend was a serotonin selective or SSRI. But at the time of the trial she was unable to undertake this therapy because she had recently fallen pregnant and the SSRI medication is contraindicated for pregnancy.

216. [432]

     In response to a question from the Court, Dr Grace gave population figures that of PTSD cases, 30% of the population will improve in time without treatment, another 30% will have treatment and will improve, and that another 30% will fail to improve, regardless of what treatment they are given. The latter group is said to suffer “chronic” PTSD which is now classified as “refractory PTSD”, refractory meaning non-responsive to treatment in this context.

217. [433]

     Dr Wilkins’s responses to the Court on the subject were challenged in further cross-examination with a metadata study in 2014 by Morina and others of 42 other studies involving 81,000 participants, reported in an article in the professional journal Clinical Psychology Review. This large population study is a possible basis to infer that higher rates (up to 44%) of remission of untreated PTSD will occur. But population studies in relation to the general propensity PTSD sufferers do not assist the Court to decide what is the right prognosis for Ms Sandstrom. Although this Morina study was tendered and was taken into account, the Court prefers the direct clinically sourced prognosis of Ms Sandstrom’s treating psychiatrist, Dr Wilkins. And Dr Wilkins was cautious about using studies in his treatment unless he understood them well and pointed out that untreated remission rates reported in the Morina study appear to show a variance between 8 and 80%.

218. [434]

     Finally, the cross-examination accused Dr Wilkins of being a “known advocate critical of insurers” and a known advocate “speaking angrily and negatively about the insurance companies”. He frankly conceded that he had spoken on one occasion in a NSW parliamentary forum critically of insurers generally but not MetLife specifically. Dr Wilkins pointed out that he practises from Miranda and a majority of the New South Wales police officers who work in Sydney live in Miranda or the Sutherland Shire, so he sees a lot of them in his practice. It is perhaps not surprising therefore that he has opinions about the treatment of police officers that he wished to share with the Parliament. None of this attack demonstrated bias on Dr Wilkins’ part.

219. [435]

     Dr Wilkins was cross-examined about Ms Sandstrom’s shopping experiences. He gave an account of them which gives a medical confirmation of the behaviours that the Court’s findings identify. From the history given to him he describes the plaintiff’s shopping as “quite a chaotic sort of experience” and that “she would get a packet of nappies and a tin of spaghetti and then go home and realise that she left without buying anything she went to buy”. He gave a psychiatric explanation for this behaviour, which the Court accepts. The explanation is that “her cognitive processing has been diminished as a result of PTSD and that is one of the major contributors to her being [dis] organised”.

220. [436]

     Dr Wilkins also sees her public adventures as becoming chaotic, or requiring her to leave early from events, because of sudden anxiety due to her over interpreting a possible risk or becoming hypervigilant. In my view this analysis gives a good account of what the Court has seen of her public behaviour.

221. [437]

     Dr Wilkins also explained a side-effect of the impact of PTSD on Ms Sandstrom’s cognitive processing. Rather than simply accepting her history as true, he explained that he approaches history taking from her with an awareness that her cognitive processing has been impacted by her history of trauma and as a result “to some extent I think that what she reports can be distorted”. He gives examples that the distortions mean she might, for example, have trouble remembering how long she spent at a particular place, “that sort of distortion is quite common in PTSD”.

222. [438]

     In conclusion, he expressed the “hope” that Ms Sandstrom would enjoy a substantial improvement in her condition. And that “our goal” was for her to pursue a useful ordinary life. But in response to the question that there was “a real chance of it”, he did not agree. But he instead answered “there is a possibility”, and later “there is a real small possibility”. The Court accepts that judgment.

223. [439]

     Dr Mark Kneebone. The plaintiff was referred to see Dr Mark Kneebone, consultant psychiatrist, by Metlife’s solicitors, for an independent medico-legal examination. The consultation took place on 22 June 2017. In his report, dated 9 August 2017, he agreed with the diagnostic assessments of Dr Grace and Dr Wilkins, the plaintiff’s subsequent treating psychiatrist, that the plaintiff was suffering from PTSD. He considered that:

224. [440]

     He also observed that there had been no improvement in the plaintiff’s symptoms, notwithstanding the trials of various medications, and group treatment for PTSD conducted while she was an inpatient at St John of God Hospital. He noted that she was unwilling to accept well recognised treatments such as “trauma focused graded exposure therapy or eye movement desensitisation and processing for her condition.”

225. [441]

     In relation to the plaintiff’s treatment regime, he considered that her treatment to date had been “inadequate” and that it had fallen “well short of that required to bring about meaningful and sustained improvement”. However, he opined that even in the absence of effective treatment, if her condition was taken at face value, as at the date of assessment:

226. [442]

     Dr Kneebone opined that the failure of the plaintiff to show any “meaningful recovery” since the date for assessment of 9 March 2011:

227. [443]

     Dr Kneebone agreed with the assessment of the psychologist Dr Richard Mattick that, although the plaintiff was suffering from a genuine psychological disorder, she was likely to be overstating the severity of her symptoms and levels of impairment. Dr Kneebone identified the bases for his opinion as being:

228. [444]

     When asked for his opinion as to her “past, current and future capacity employment within her education, training and experience… including at the date for assessment”, he stated:

229. [445]

     In arriving at this position, Dr Kneebone expressly took into account the vocational assessment prepared by Ms Bradley on 2 August 2017, which identified a number of occupations thought to be suitable for the plaintiff to engage in on either a part time or full time basis.

230. [446]

     In cross-examination Dr Kneebone confirmed Dr Wilkins’ evidence that EMDR and its allied treatments will result in one third of persons having a good recovery, one third will do moderately well and one third will have little or no improvement with treatment. The choice between his evidence and that of Dr Wilkins’ evidence comes down to Dr Wilkins’ judgment that therapies such as EMDR and TFCBT are contraindicated because of the risk they carry with them of exacerbating her PTSD. On this issue the Court accepts Dr Wilkins’ evidence who has been treating the plaintiff since 2014.

231. [447]

     But Dr Kneebone stated that there are some indicators that persons are more likely to develop PTSD and to have a poor recovery. These factors are quite variable according to Dr Kneebone but one of them is whether a person has pre-existing anxiety. An interesting feature of Sergeant Spence’s evidence is that he identified that the plaintiff did show higher levels of anxiety than other police officers who he expected to fit in at the Bankstown LAC.

232. [448]

     But Dr Kneebone’s optimism about her recovery is partly based on results of Dr Mattick’s testing that one would expect greater impairment of her concentration and attention and cognitive processing with her claimed levels of anxiety and depression, than she actually displayed. He was also concerned that her reported levels of impairment compared with what was revealed on social media and the internet showed a “quite gross discrepancy”. There was indeed a considerable difference between the history Dr Kneebone took from Ms Sandstrom and her actual levels of activity. The Court accepts that she told Dr Kneebone that she no longer socialised, no longer ate out and no longer attended the cinema and friendships had been allowed to lapse, something which he had observed did not match up with the social media data.

233. [449]

     There were clearly distortions in what Ms Sandstrom said to Dr Kneebone. But the fact that such distortions can occur in someone with PTSD is consistent with Dr Wilkins’ evidence. It should be accepted that the history that the plaintiff gave to Dr Kneebone understated her social activities and exaggerated her social inhibitions. But the Court does not regard any such exaggeration as deliberate. Whatever be the mechanism of the distortion that Dr Wilkins mentioned, the Court accepts that she feels high levels of anxiety in what she is doing socially and that this is constantly present for her.

234. [450]

     Dr Kneebone thought that the plaintiff’s social media activity showed she had some social confidence to get out of the house, which indicated a potentially positive response was likely to treatment to manage her anxieties and control potential cues, which could be kept to a minimum. But this reasoning ultimately comes up against Dr Wilkins’ opinion about the difficulty in treating her, and against the likelihood of designing a work environment which provides no triggers for her PTSD.

235. [451]

     Even accepting that she can be treated, on Dr Kneebone’s analysis, with such treatment she still has a 30 to 40 per cent chance of there being no improvement in her symptoms. And in relation to the 60 to 70 per cent chance of improvement, her employability partly depends upon protection from cues that set off her decompensating episodes. Dr Kneebone took a narrow view of these triggers, that they are more directly related to police and security activities. But in the Court’s view the plaintiff’s PTSD is triggered by a wider less predictable range of events.

236. [452]

     A number of doctors were not cross-examined, some of them gave evidence through medical reports, which require analysis in light of the oral medical evidence.

237. [453]

     Dr Ian De Saxe. Dr Ian De Saxe, a consultant psychiatrist, saw the plaintiff on 4 July 2012 at Metlife’s request, and prepared reports on two separate occasions.

238. [454]

     Dr De Saxe saw the plaintiff in person. In his report dated 28 July 2018, he was asked a series of questions under the heading “[w]ork-related abilities and limitations”, provided in the following terms:

239. [455]

     Dr De Saxe responded with the following:

240. [456]

     Under the next heading, “Prognosis”, the following questions were set out:

241. [457]

     Dr De Saxe provided the following response:

242. [458]

     Dr De Saxe ultimately concluded in his report that the plaintiff required “further ongoing psychotherapy and medication” before she would be able to re-enter the workforce, and that “she is likely to work again, but never in work associated with policing nor in similar work”.

243. [459]

     Dr De Saxe provided a further report on 29 September 2012. The purpose of this report was to specifically provide comments on the Vocational Assessment Report the plaintiff undertook on 4 July 2012, and did not involve any further consultation with the plaintiff.

244. [460]

     In the report, Dr De Saxe opined that the plaintiff would be “capable of returning” to one of the three roles identified in the vocational assessment, namely as an Inquiry Clerk, General Clerk, or Sales Assistant (general). In relation to her prognosis for recovery and return to work in “any occupation”, he opined:

245. [461]

     Dr De Saxe responded with “yes” to “is [the plaintiff] able to work at least on a part-time or full-time basis in any occupation in the next 20+ years”.

246. [462]

     Dr De Saxe’s opinion, though derived from consultations with the plaintiff closer to the assessment date than doctors such as Dr Wilkins and Dr Kneebone, is that with appropriate support and therapy and a youthful age that she should be able to return to work. But two things displace this opinion for the Court. The Court accepts Dr Wilkins’ view that only a limited number of therapies are available for the plaintiff and he, Dr Wilkins, is treating her with them. The second matter is that despite Dr Wilkins’ treating the plaintiff there has not been improvement, which time has shown contradicts Dr De Saxe’s prognosis that she should be able to return to work within 12 months of him seeing her.

247. [463]

     Dr Selwyn Smith. Another doctor who was not cross-examined was Dr Selwyn Smith. He examined the plaintiff at the request of her solicitors on 8 July 2013, in relation to her Workers’ Compensation Claim. In his report dated 12 July 2013, Dr Smith opined that the plaintiff met the diagnostic criteria for Post Traumatic Stress Disorder, which was chronic in duration and of moderate severity. He observed that the plaintiff revealed clinical evidence of Major Depressive Disorder in association with Generalised Anxiety Disorder to the point of panic.

248. [464]

     Dr Smith also responded to a number of specific questions provided by Norwest Lawyers. Relevantly, Dr Smith opined that:

249. [465]

     Later in his report, he agreed that the plaintiff would have very limited capacity to obtain work in the open labour market, and agreed with “pessimistic views in regard to her future employment”. Dr Selwyn Smith assessed the plaintiff’s Whole Person Impairment at 22%. In relation to “employability”, he assessed the plaintiff as falling in ‘Class 4’, “Severe Impairment”, noting:

250. [466]

     Dr Selwyn Smith provided a follow up report at the request of the plaintiff’s solicitors on 9 August 2013.

251. [467]

     In this supplementary report, Dr Smith opined that the plaintiff:

252. [468]

     Although Dr Selwyn Smith was not called to give evidence, in my view his diagnosis of PTSD with co-morbid major depressive disorder and generalised anxiety disorder, as a basis to infer she is totally unemployable, was an early accurate diagnosis of the plaintiff’s long term future. Because Dr Selwyn Smith was not called, weighing his opinion against the other more heavily debated medical reports is difficult. But it can be said that time has proven the worth of his opinion. From an earlier stage he could see that Ms Sandstrom was unlikely to be employable in the long term.

253. [469]

     Only one psychologist was cross-examined, Professor Richard Mattick. But the reports of a number of others tended to negative the proposition that the plaintiff was faking her symptoms.

254. [470]

     Professor Richard Mattick. The plaintiff was assessed on 14 October 2016 by Professor Richard Mattick, a clinical psychologist, on referral from Metlife’s solicitors.

255. [471]

     Professor Mattick opined that the plaintiff had “really … not received adequate treatment”, but with a series of strategies, as outlined, combined with a medication review and settlement of the claim, her condition was likely to improve “markedly over the next 12 months”. He thought that the plaintiff was “somewhat exaggerating her symptoms”, but emphasised that he was not suggesting that she was “feigning dysfunction, but rather that she endorses extreme responses”.

256. [472]

     In relation to the plaintiff’s ability to return to work, he opined:

257. [473]

     Professor Mattick approached Ms Sandstrom optimistically as being treatable and having a reasonable chance of recovery as a result of that treatment. This was no better put than in a response he gave to the question from the Court, which summarised some of the evidence about what she could and could not do and about the uncontrolled emotional episodes that she suffered. Professor Mattick said the following:

258. [474]

     In essence, Professor Mattick’s reasoning was that she had genuine symptoms but was exaggerating them in part and that she was likely to be amenable to TFCBT and EMDR treatment and similar therapies. But in the Court’s view the risks associated for Ms Sandstrom with those treatments must give way to Dr Wilkins’ opinion, which the Court accepts.

259. [475]

     Kim Malone. The plaintiff saw Kim Malone, a psychologist throughout 2012 on behalf of the Workers Compensation Insurer. She last saw the plaintiff in December 2012 and reported in March 2013. She reported that the plaintiff’s score was still in the moderate range for depression and the severe range for anxiety and stress. Although she did have contact with the plaintiff to verify current responses in March 2013. Her diagnosis for Ms Sandstrom’s injury was chronic PTSD.

260. [476]

     Ms Malone’s evidence is important in showing that there was some improvement in the plaintiff in 2012 leading to “greater engagement in life and her social and interpersonal functioning is better”. The plaintiff reported to Ms Malone about her holiday with her son which does not appear to have been kept from Ms Malone. But Ms Malone recorded difficulties with travel and concentration but an improvement in social and recreational activities.

261. [477]

     But Ms Malone’s opinion was that it was too hard to tell whether or not there would be permanent impact from Ms Sandstrom’s PTSD injury although she did record the fact that Ms Sandstrom’s need to “justify the psychological nature of her injury in response to the events that caused same, has increased her sense of hopelessness and low self-worth”.

262. [478]

     The litigation process is undoubtedly a negative factor for her further recovery. But the Court accepts in light of Dr Wilkins’ opinion that sufficient time has now gone by to show what the long term future for Ms Sandstrom would be like.

263. [479]

     Mr Gerard Glancey. On 2 May 2012, Ms Sandstorm was assessed by Gerard Glancey, a psychologist, after a referral from her solicitors. He assessed her WPI to be 22%. In the report, he opined that:

264. [480]

     He also noted that he could not see anything to suggest her potential for a “positive change in her functioning”, and that “her functioning as reported leads to the view that she is unlikely to return to competitive employment”.

265. [481]

     Mr Marcelo Rodrigues. Mr Marcelo Rodrigues, a psychologist, saw the plaintiff on one occasion at the request of her solicitors, on 31 May 2012. This was in relation to the plaintiff’s Workers’ Compensation claim. In his report of 7 July 2012, Mr Rodrigues opined that the plaintiff’s symptoms were consistent with a diagnosis of moderate to severe post-traumatic stress disorder. He considered that the plaintiff would be “unlikely to be fit for police work in the foreseeable future”, but did not otherwise deal with the plaintiff’s return-to-work prognosis.

266. [482]

     Ms Caroline Hare. The plaintiff was assessed by Ms Caroline Hare, a psychologist, on 10 March 2014, at the request of MetLife. MetLife specifically requested that the present report address whether the plaintiff was ‘malingering’ (i.e., exaggerating her symptoms for external gain). The plaintiff undertook personality testing (‘MMPI-2’), but did not consent to a clinical interview or psychometric testing. Based on the material before her, Ms Hare opined that:

267. [483]

     Ms Hare advised that she was not asked to comment specifically on the plaintiff’s capacity for future employment, and was not in a position to do so, given the limited information she had available to her. In the Court’s view Ms Hare’s assessment is correct to the extent that it is unlikely that the plaintiff was “faking bad”.

268. [484]

     It is not necessary for the Court to review all the vocational assessments. The most comprehensive and up to date of them advanced by MetLife was that of Ms Aelan Bradley. This really displaced the assessments considered in Stage I. There was no issue concerning her credibility.

269. [485]

     Ms Bradley was able to give evidence about the availability of part-time work in the three categories that she identified that were within the plaintiff’s pre-disability education, training and experience. The available work that she had identified covered Sydney’s southern suburbs, including the Sutherland shire and was divided into full-time work and part-time work. The part-time work was in turn divided into offers of work for various periods per week some of them for as little as one to 15 hours per week of regular part-time work. Her evidence does show that there are jobs available in the government and non-government sectors for fairly low levels of part-time remunerative work.

270. [486]

     It may be the plaintiff is able to do three to five hours a week on a regular basis as something within her capacity for a limited period. But the unpredictable intrusion of triggers for her meltdowns and her problem with coping with planning means that her potential to be able to undertake casual work, even with relatively un-demanding hours, must be regarded as speculative.

271. [487]

     At some time during employment of the kind for which she is otherwise suited she will face the obligation to take responsibility either for others or for some process. And such employment will in the Court’s view inevitably risk the intrusion of some unpredictable trigger from her past police experiences. It may just be in a conversation but the trigger is likely to be the threshold of an event which will probably result in the termination of her employment.

272. [488]

     If Ms Sandstrom were to respond to therapy, she probably could do regular remunerative work for periods. But one cannot see the plaintiff without believing that whatever therapy is applied to her there will be periods of time where she will continue to suffer from spontaneously triggered episodes of distress that she will be barely able to control. These deeply distressing “meltdowns”, as Mr Abbott described them, have continued for many years since she left police service and unless medical intervention is successful are, on the evidence of them since 2010, likely in my view to recur periodically in the future. This will make her holding down regular long-term employment a matter of speculation.

273. [489]

     One indication of how the plaintiff would fare in a long-term work environment dealing with people who are not family, is the way she deals in long term relationships with friends. There, her explanation, which the Court accepts, is that she cannot maintain those relationships because the commitments required and expectations of her in those relationships are overwhelming to her and she has to withdraw from them either from time to time or in the long term. I accept that is an accurate self-analysis of how her non-family interpersonal relationships are conducted. This is a strong indicator of the pressures she would encounter in a work place, ultimately leading to what she would perceive to be a necessary withdrawal.

274. [490]

     Ms Sandstrom’s husband, Mr Abbott, does not think with all the limitations that he has observed, that his wife would be able to work in external employment. The Court accepts that he actively wants her to work outside the home, if she can. He says, and the Court accepts, that this is his preference: “if I thought Rebecca had any capacity to work, I would get her to help out with the admin work for my business.” But rather than employing his wife, Mr Abbott has engaged an administrative assistant one day a week in his business. Mr Abbott was a practical down-to-earth self-employed businessman, conscious of the cost structure of his own business. In the Court’s view Mr Abbott would not engage an administrative assistant one day a week, if he believed Ms Sandstrom could do this kind of administrative work herself. For his own sake and for hers he would have engaged her long ago if he thought that she was capable of working. Instead, his judgment was that “she would not be able to cope with that”. The Court agrees with him.

275. [491]

     His failure to engage her to work for him is not part of some conscious scheme to conceal her working capacity prior to the resolution of this case. It is the first easy option for her present and future employment and the Court accepts his evidence that this is not a step that he is prepared to take. If someone as obviously sympathetic to Sandstrom’s situation as her husband, is not prepared to take the step of employing her, it is not very difficult to infer that independent employers would be unlikely to take that step either.

276. [492]

     It was put to the plaintiff that she had significant clerical and IT skills that she had acquired before she left the police and that she could now redeploy these in other employment. The question was well put, because she does have these skills. And were she unconstrained by psychological factors, in the Court’s view she has a sufficiently sound skills platform to adapt to employment of the kinds MetLife has identified.

277. [493]

     Her first response to this suggestion was to say that her IT skills are out of date. But this alone would not be an answer to the proposition that she might be able to seek and have a realistic chance of securing regular employment in the future. She has sufficiently high intelligence that it would not be particularly onerous for her to brush up on her existing skills and it would be reasonable for her to do so to obtain employment.

278. [494]

     But Ms Sandstrom faces different issues. She says, and the Court accepts, that she would have difficulty obtaining paid clerical employment, even if she were shielded from contact with the public and from particular places that might remind her of police or security work. I accept that she suffers unpredictable episodes of emotional distress. The Court saw enough of them in the course of her testimony to see their spontaneity. They were often triggered by discussing difficult emotional issues, some of which were not directly concerned with recounting her police work. Sometimes these were just triggered by her trying to explain her mental condition and to get across to the Court the fact that she appreciated that it was difficult for other people to comprehend, what for her was very real.

279. [495]

     Planning and taking responsibility can be so overwhelming for her that it tends to produce this kind of emotional reaction in her. The trigger for her meltdowns in part seems to be the internal tension of having to meet the expectations of others in executing planning functions ot taking responsibility as would typically be required from time to time in any work for which she is suited. The pressure on her in such situations she perceives to be “too much”. Neither she nor any future employer could safely predict every workplace situation in which the variety of these triggers will occur.

280. [496]

     Some triggers are obvious but many are not. So it is very difficult to construct boundaries around her workplace to avoid the risk of exposure to triggers. Ms Sandstrom’s husband and her mother, who understand her meltdown episodes well enough at a practical level, are her best support in dealing with these triggers. But she will not have their day-to-day assistance in any paid employment.

281. [497]

     As a result of all these factors, the possibility of her gainful employment outside the home is best described as “remote and speculative”, rather than something which is “readily contemplatable”. Her lack of planning capacity is one basal reason why, in the Court’s view, she is presently unemployable. There are others, including her unpredictable propensity for spontaneous episodes of uncontrolled emotion, triggered often by obscure (but nevertheless real for her) associations with her traumatic policing experiences. Her intelligence is such that she is theoretically resourceful enough to turn her hand to a variety of paid occupations. But in the Court’s view, she wiil not sustain them for very long. There is a strong probability that soon after starting new employment she would be defeated. No employer of her skills would be likely to carry for very long an explosive employee without capacity to plan or take responsibility.

282. [498]

     This present assessment of Ms Sandstrom throws light on what she was like on 9 March 2011, the relevant date for assessment under each Policy. There is a strong basis to infer back from her present state to what she must have been in March 2011. Over that time there has been no improvement in her condition despite some medical treatment. Both then and at the time of hearing medical opinion, which the Court accepts, supports the conclusion that she is unlikely ever to undertake any employment for which she is reasonably fitted by education training or experience.

283. [499]

     In my view she meets the TPD definition in both the FSS Policy and the PBRI Policy.

Conclusion and Orders

1. [500]

   For these reasons the Court will make declarations that the benefits that the parties agreed would be payable respectively under the FSS Policy and the PBRI Policy should now be paid by MetLife to FSS, on account of the plaintiff’s TPD claims against FSS. If the parties wish for these funds to be paid directly from MetLife to her, the orders made below can be varied, with the consent of FSS.

2. [501]

   The plaintiff’s Statement of Claim claims interest under the Insurance Contracts Act 1994 (Cth), s 57 from 1 March 2012 up to the date of payment of the benefits under the FSS Policy and the PBRI Policy. The parties have not fully debated issues relevant to interest, namely: on which of several possible bases interest might be payable; what is the start date for the calculation of any interest that is payable; and, what rate of interest should be applied. The parties should now endeavour to agree on those issues. If they cannot, the Court will hear submissions on those various matters on Friday 27 March 2020.

3. [502]

   Costs would ordinarily follow the event. The Court proposes to make an order for costs in the plaintiff’s favour on the ordinary basis, unless one or other party has a basis to apply for a special costs order. The Court will adjourn the proceedings to deal with all questions of interest and costs to Friday 27 March 2020 at 9.30am. The Court will make a costs order on the ordinary basis against the second defendant in the plaintiff’s favour on that day if no motion for a different costs order is filed by that time.

4. [503]

   For these reasons, the Court makes the following declarations orders and directions:

   1. (1)

      Declare that MetLife’s determination on 24 July 2015 as to the plaintiff’s entitlement to any benefit in respect of claim No. 32510 (under the PBRI Policy as defined in the judgment given with these reasons) and claim No. 32511 (under the FSS Policy as defined in the judgment given with these reasons) is void and of no effect.

   2. (2)

      Declare that the plaintiff is and was as at 9 March 2011, the assessment date under each of the PBRI Policy and the FSS Policy, “totally and permanently disabled” within the meaning of those words in each such policy.

   3. (3)

      Order that the second defendant pay to the FSS Trustee Corporation Limited as trustee of the First State Superannuation Scheme the sum of $582,718 under the PBRI Policy and $170,100 under the FSS Policy within 28 days, on account of the plaintiff’s claims under each of those respective policies.

   4. (4)

      Note that payments made pursuant to Order 3 are exclusive of interest and that the interest rate and the period over which any such interest should be calculated are both issues reserved for further consideration.

   5. (5)

      Adjourn the proceedings for any argument in relation to interest and costs to Friday, 27 March 2020 at 9.30am.

   6. (6)

      Note that the Court proposes to make an order that the second defendant pay the plaintiff’s costs of these proceedings on the ordinary basis, unless on or before 13 March 2020 any party seeking a different costs order applies by motion for such an order.

   7. (7)

      Direct the parties to file and serve any submissions on issues of interest and costs by Monday, 16 March 2020.

   8. (8)

      Direct the parties to file and serve any submissions in reply on issues of interest and costs by Friday 20 March 2020.

   9. (9)

      Grant liberty to apply.