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  4. Greenall v State of Queensland - [2013] QDC 277

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Greenall v State of Queensland[2013] QDC 277

Greenall v State of Queensland[2013] QDC 277

DISTRICT COURT OF QUEENSLAND

CITATION:

Greenall  v State of Queensland [2013] QDC 277

PARTIES:

JAYDE MARIE GREENALL nee EVANS
(plaintiff)

v

STATE OF QUEENSLAND
(defendant)

FILE NO/S:

3350/10

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

11 November 2013

DELIVERED AT:

Brisbane 

HEARING DATE:

9,10,11,12,13,16,17 and 18 September 2013

JUDGE:

Reid DCJ

ORDER:

Judgment for the Defendant

CATCHWORDS:

Negligence – Damages – Alleged physical and psychiatric injuries – adequacy of training – exacerbation of psychiatric injury – reliability of plaintiff’s evidence 

COUNSEL:

J Kimmins for the Plaintiff

M O'Sullivan for the Defendant

SOLICITORS:

Shine Lawyers for the Plaintiff

Crown Law for the Defendant

Introduction

  1. [1]
    In this matter the plaintiff sues the State of Queensland for damages for personal injury arising out of her employment as a police officer pursuant to the Police Service Administration Act. Both liability and quantum are in dispute.
  1. [2]
    The plaintiff alleges that on 31 October 2006 as she attempted to extract an offender from the offender’s motor vehicle, she was struck in the nose by the offender’s elbow and in a consequent struggle also injured her right wrist. She says the blow to her nose occurred as she reached in to take the keys from the offender’s car, a technique taught, she said, during her training with the police service. She says this training was inappropriate and constituted a breach of the duty of care owed to her by her employer.
  1. [3]
    She also alleges that as a result of the nature of the attack upon her, and as a consequence of the physical injuries she suffered, she developed a significant psychiatric disorder which has precluded her from continuing her chosen career in the police force.
  1. [4]
    It is alleged that the plaintiff’s psychiatric condition was significantly aggravated by her participation in a training program on 24 September 2009 run by the police service as part of her return to work programme. She alleges the police service was negligent in exposing her to an exercise which very closely resembled the original incident of 31 October 2006 and consequently aggravated her psychiatric condition. It is said that even if she were to fail with her claim arising out of events of 31 October she is entitled to damages related to the negligence of the police service in conducting this programme with her.
  1. [5]
    The defendant’s case is that the plaintiff suffered only very minor injuries in the initial incident and that any psychiatric problems she developed are due to her pre‑existing personality and issues unrelated to her employment. In particular the defendant points to difficulties in her marriage and her husband’s own significant psychiatric issues. The defendant also asserts that in her training with the police she was specifically instructed not to reach in to take keys from an offender’s vehicle. It also says that the training program that she attended as part of her return to work program was conducted with the approval of her treating psychiatrist, that the service was not negligent in its conduct of the programme and in any case that her participation did not aggravate her condition.

Background

  1. [6]
    The plaintiff was born on 6 December 1979. She married her husband, Darren Greenall, on 30 August 2008. They have a daughter, born on 5 April 2006, 7 months prior to the initial incident. Prior to 2004 the plaintiff was employed with Queensland Corrective Services but attended the police academy in 2004 and was sworn in as a police officer on 22 September 2004. She was eventually retired on medical grounds on 14 January 2011. Her current employment is as a technical intelligence officer with the Australian Federal Police in Canberra. It is a civilian position and not that of an operational police officer.
  1. [7]
    A schedule of the plaintiff’s full employment history was admitted into evidence (Exhibit 1 volume 4 tab N p 964). The plaintiff gave evidence that she prepared this schedule from tax documentation.

Training: Plaintiff’s case

  1. [8]
    In the course of her initial training at the police academy, the plaintiff says she received instructions about interception of motor vehicles and methods of extracting drivers, including drivers who were uncooperative. She gave evidence that in the course of that training she was told, and it was demonstrated to her, how to take keys from an uncooperative offender’s motor vehicle.
  1. [9]
    She says the training was provided by a number of people and mentioned in particular Greg Tottman, Gary Tobin and James Donnelly. The plaintiff said that Donnelly acted as the police officer and Tottman played the role of an aggressive and uncooperative driver. Donnelly, the plaintiff said, reached into the vehicle and took the keys out of the ignition throwing them onto a nearby mat. She said that trainees were told to put keys on the roof of the car, clip them on to their belt or to throw them over their shoulder, taking care not to lose them (T1-37, l 15-20). She says that the removal of keys in that fashion was demonstrated more than once (T1-38, l 1-3). She said also that they were told to be careful and to use their judgment as officers in America had been injured removing keys. They were also instructed, she said, with respect to various arm and wrist locks and in the use of handcuffs to assist in extracting uncooperative drivers from motor vehicles. She said recruits practised such manoeuvres and that she herself had removed keys on four or five occasions from cars or pretend cars, during the course of her initial recruit training.
  1. [10]
    I interpose that documents admitted into evidence corroborate some of what the plaintiff says about her training, in particular what she said in respect of techniques for placing armbars and wristlocks on drivers and use of handcuffs (see Exhibit 2, Vol 2, Tab 13, p 414ff). The documents however do not support what she says she was taught about the removal of keys. Evidence called in the defendant’s case by police who conducted the subject training also strongly contradicts what she says she was taught about removing keys from vehicles. Two of the officers who provided training to the plaintiff at the Academy in 2004, Tobin and Donnelly, gave evidence. It seems Tottman had left the Police Force and was not called. I draw no adverse inference from his failure to give evidence.
  1. [11]
    In reliance on what she says she had been told about removal of keys, the plaintiff said she purchased a clip for her belt onto which keys could be easily placed. She said she purchased the clip from a business, BBB, which apparently specialises in the sale of police equipment. She said a significant number of cadets did so, in reliance on their training, and specifically on advice that it was appropriate to reach in and remove keys from the motor vehicle in which an offender was seated.
  1. [12]
    In support of her case, the plaintiff also gave evidence about training she later did at Mt Cotton, another training centre. In my view nothing really turns on this training which appears to have been more directed towards the manner of driving of police vehicles and with how to park a police vehicle to allow an avenue of escape and protect an officer from oncoming vehicles when approaching an offender’s vehicle.
  1. [13]
    The plaintiff’s evidence was that after her appointment as a police officer in September 2004, she then worked in the Logan region, initially at Jimboomba and then for three years at Slacks Creek. She said that during this time she used to intercept vehicles in the course of her work fairly regularly and on occasions removed keys from vehicles. She said she had also seen her policing partners remove keys from such vehicles on many occasions. She described it as “common practice” and said she did not know an officer who did not use that technique.
  1. [14]
    As part of the police services ongoing commitment to training officers, all officers had to complete what was described as POST training. It was also referred to as OST or Block training. The plaintiff said that this was meant to be done every six months but, for an unexplained reason, this did not regularly occur in the plaintiff’s case. In any case she did complete some such training in September 2006.
  1. [15]
    She said her training in 2006 was given by Stephen Shipman, and took place in an upstairs room at Logan PCYC. She said that no actual vehicle was involved but that instead the presence of a police vehicle was simulated by using a wall to represent the side of a car. She said she was shown handcuffing techniques. On this occasion she said no keys were used and nothing was taught about the removal of keys (T1-47, l 2). She said nothing was said at this time about not reaching or leaning into another vehicle (T1-47 l7). She said that the training did include simulated removal of a driver using similar techniques to those previously taught at the academy, namely armbars and wristlocks.
  1. [16]
    The plaintiff called two witnesses to corroborate her evidence, Karen Tukuatu and Penelope Flaherty.
  1. [17]
    Ms Tukuatu did her recruit training in November 2001, three years prior to that of the plaintiff. She remained with the Police Service until December 2012, so was in the police for a period of over 10 years. She gave evidence of doing a driver training course at Mt Cotton. The course included training about where to park a police vehicle when pulling over an offender and about how to approach such a vehicle. She says it was recommended that the offender should be required to turn his or her motor vehicle off. She said they were however not taught how to physically extract a driver from a vehicle on that course. She said that subject was covered by what she called PSE training given at the Academy (T2-70, l 37-40).
  1. [18]
    She said such PSE training was provided by a number of instructors including two Tobin brothers, and police officer’s she named as Skinosio, Wiseman and Haseman. She said the training involved the use of handcuffs as part of a “come-along hold”. When giving evidence she was shown the Good Practice Guide 2003 (Exhibit 2, Volume 1, page 49ff) and said she had been taught similar techniques (T2-73, l 28ff especially at page 74, l19-25). She was asked whether, during her initial training, she was told not to reach or lean into a vehicle. She said (T2-75, l 27-33):

“We weren’t told that at PSE. At driver training they said, obviously be mindful that if you’re reaching in, to put in as little as you need to because you’re posing a risk by putting yourself in, but you – we can’t do our job if we don’t put ourself in the vehicle, so it’s – it’s common sense, basically, was – was what they were trying to tell us.”

  1. [19]
    Ms Tukuatu said that they were never told not to reach in or remove the keys from the ignition and in fact she said they were told that “if we do choose to take the keys out of the vehicle what to do with the keys… for example, either toss the keys towards the pathway not the roadside…” (T2-75, l 38-40). She says they were also told to buy a clip to hold keys onto your belt.
  1. [20]
    She said that during subsequent POST training in about 2008 she was told not to lean into a vehicle to get the keys. She said in evidence that she thought that “strange because it was different to what we had actually been taught” (T2-78, l 40-41).
  1. [21]
    Ms Tukuatu gave evidence that during operational duties as a police officer she had, when she pulled over a driver, never herself removed keys (T2-79, l 20-22) but had seen other officers do so four or five times in the years of her service (T2-79, l 32-35).
  1. [22]
    In cross-examination she accepted that they were taught to be alert and vigilant for ones own safety. She said a core instruction was to always assess the situation but maintained that she was never instructed that an officer should not reach in and attempt to take keys (T2-86, l 15, l 22-25, T2-96, l 43-48). She said that the removal of keys by an officer was a rare occurrence (T2-98, l 18).
  1. [23]
    Ms Flaherty was a police officer from June 1992 to November 2010. She gave evidence of undertaking POST training every six months during the course of her being an officer. She said that this involved training about the removal of persons from vehicles on about 10 to 12 occasions over the course of her career. She said that in POST training “most of the time I would assess that it was a safer option to actually remove the keys from the vehicle rather than allow them to be able to drive off… So I would quickly, without probably giving too much of an advantage, remove the keys from the ignition” (T3-89, l 8-13). She says this is what she was taught (T3, l 89) and that such a practice was “never questioned in any of the training sessions” (l 29-30). She practised this procedure several times during such training and said that nothing was ever said to her about that (l 33-38). She said they were advised to keep the keys on their person rather than throwing them away. She said in POST Training she had never been instructed not to lean or reach into a vehicle and remove keys (T3-90, l 43-4). She also said that as an operational police officer she had removed keys from a vehicle in such a way “many times” and estimated this as “around the 100 mark over 15 years” (T3-91, l 34). She said she had seen just as many such operations performed by other officers (T3-91, l 39-40).
  1. [24]
    Part of Ms Flaherty’s evidence also concerned training which she says she attended with the plaintiff in September 2009. This was the training when the plaintiff says she decompensated. I shall refer to this evidence later.
  1. [25]
    The evidence of the plaintiff, Ms Flaherty and Ms Tukuatu is in stark contrast with that of Steven Shipman, Darren Tobin and James Donnelly and with the contents of the Good Practice Guide, the written foundation for the training that those officers delivered to police. I shall deal with the resolution of this conflict in due course. It is first appropriate to deal with the subject accident, and its consequences for consideration of those issues raises questions about the reliability and honesty of the plaintiff.

Subject incident

  1. [26]
    On 31 October 2006 the plaintiff was driving a marked police car with her partner, Constable David McGreevy. At the intersection of Compton Road and Kingston Road they noticed a car driving dangerously. They followed the vehicle as it turned into Compton Road. It stopped behind a truck at the intersection of Compton Road and August Street. Traffic was heavy. It was about 4.30 p.m.. The plaintiff said that she parked the police car behind the offender’s vehicle. She also said that Constable McGreevy became detained for some unexplained reason at the police car. When she got to the driver’s side window she said it was clear the driver was significantly agitated. The driver continued to say that she was late for the bank and seemed to be throwing her arms around in an agitated manner. The plaintiff asked her to keep her hands still and on the steering wheel. She did not do so. She said the offender was trying to continually drive the car back and forwards in a relatively confined space to enable her to get around the truck in front of her.
  1. [27]
    Fearful that the driver might drive off, the plaintiff said she decided to get possession of the keys. In order to do this, she said she leaned forward with her right arm extended. She said that at a time her head was still outside the vehicle itself, the driver used her right elbow to strike the plaintiff on the nose. The plaintiff said that when struck in the nose her sunglasses were broken.
  1. [28]
    The plaintiff said she felt immediate pain. She determined to use her handcuffs which she said she put on the driver’s right wrist by reaching through the window of the car. She also said she used her left hand to push the driver’s head back against the seat prior to applying the handcuffs to the driver’s right wrist. She did not say she carried out any similar manoeuvre, which was clearly designed to minimize the risk of being struck, prior to trying to remove the keys.
  1. [29]
    By pulling on the handcuffs, she would have been able to exert significant pressure, and probably pain, to the driver’s wrist. She said the driver was pulled out of the window of the vehicle. The plaintiff and the driver both then fell to the road surface, according to the plaintiff. During the incident the plaintiff said she was conscious of not letting the handcuffs go. She said that if she had done so, the driver might have been able to use them as a weapon against her. How this might be done is self-evident.
  1. [30]
    The plaintiff said that when she and the driver fell to the road surface she suffered an injury to her right wrist, with almost immediate onset of pain. She said McGreevey got the keys from the vehicle. After a struggle the driver was placed in the police car and subsequently transported to Logan Station where she was charged, among other things, with an offence of serious assault on a police officer. During cross-examination counsel for the defendant made the point, as is the case, that this does not necessarily mean that the assault itself was serious, but only that it was an assault upon a police officer which constitutes a “serious assault” under the relevant legislation.
  1. [31]
    A significant dispute at the trial concerned the question of whether or not the plaintiff had reported the injuries that she had suffered to other police officers at the Logan station. The plaintiff said that when she returned to the Logan Police Station she told other officers what had happened including a person who was seated at the shift supervisor’s desk. She described this person as a relatively tall and thinly built Islander but said she did not think he was the actual shift supervisor. When she was shown a list of persons working on that shift, she identified him as Heath Thompson. She said that Thompson told her that he had had experience with nasal injuries as a result of playing football and did not think her nose was broken but recommended she use an ice pack. She said that her nose was not bleeding and did not do so at any stage. She said however there was some redness and bruising.
  1. [32]
    Heath Thompson gave evidence. Not surprisingly, after 7 years he appeared to me to have little recollection of matters. In my view nothing really turns on this issue and it is unnecessary to decide whether she spoke to Thompson on the day.
  1. [33]
    The plaintiff says that she used an ice pack throughout the day but completed her shift with Constable McGreevy. She says that because of her injuries she was unable to drive and that McGreevy drove for all of the balance of the shift. She says that he also filled in the logbook of work they performed. The usual procedure, which she says had been followed by her and McGreevy up to the subject incident, was that one officer drove and the other would fill in the logbook. Up to the time of the incident, she was the driver.
  1. [34]
    Constable McGreevy gave evidence very significantly different from that of the plaintiff. He said that at the time of the incident he approached the offender’s vehicle on its passenger side and that the plaintiff approached the driver. He denied being detained at the police vehicle in any way. He said he saw the plaintiff’s arm and head reach into the motor vehicle. He said that she “practically dived in the vehicle”. He said he then saw the driver’s elbow strike the plaintiff in the face. He said that as the driver and the plaintiff struggled through the window he moved to the driver’s side of the vehicle, reached in, turned the car off, removed the keys and placed them on the roof of the vehicle. The circumstances in which he removed the keys was therefore very different from those in which the plaintiff had attempted to do so, and was very different from the circumstances dealt with in the plaintiff’s training.
  1. [35]
    Importantly he says that the car door was then opened and the driver was removed. He said handcuffs were applied and that she was eventually placed in the police car. He denied the driver had been pulled out of the window of the car or that she and the plaintiff had fallen onto the road surface as the plaintiff described.
  1. [36]
    Constable McGreevy said the plaintiff then drove the car back to Logan Police Station. He said he sat in the front passenger seat and the offender sat, handcuffed, in the back. He said he saw no injury to the plaintiff. He also said that throughout the balance of the shift she complained of no injury but only of breaking her sunglasses, which she told him were expensive.
  1. [37]
    He said that after processing the offender at the Logan Station they returned to work as a team and that during the shift the plaintiff worked without apparent difficulty and continued to drive the vehicle throughout the shift. He denied she used an ice pack for her nose throughout the shift as she asserted. As before, he completed the logbook. He said if he had driven, she would have completed the logbook. All of the log for that day was in his writing.
  1. [38]
    An important feature of his evidence concerned an entry in the log for a code 2 (urgent) job at 6.30 p.m. on the day. The log reads:

“Disturbance. (Code 2)

Geonie Street, Crestmead.

Re – male being kicked at roundabout.”

  1. [39]
    The balance of the log for that incident records what he and the plaintiff did when they arrived at Crestmead. Those first three lines, recorded in Constable McGreevy’s handwriting, were, he said, recorded at the time he was speaking over the radio to police communications. He said it was necessary that they be recorded contemporaneously so they had an accurate record of where they were to attend.
  1. [40]
    There is force in what he said. If he had been driving, as the plaintiff asserts, it is in my view almost inevitable that such an entry would have been in the plaintiff’s handwriting. Even on her evidence she was able to complete her shift, although she said she had some difficulties. I cannot conclude that on any view of the evidence she was so injured as to be unable to complete that small entry of the urgent code 2 job. I accept Constable McGreevy’s evidence about the work each did throughout the shift on the day of the incident. I also accept his evidence that she did not use an ice pack as she alleged and did not complain of injury to her nose or elsewhere.
  1. [41]
    I have no hesitation in accepting the evidence of Constable McGreevy about the incident itself. To a significant extent this is because of a strong view that I have that the plaintiff’s evidence was entirely unreliable and she was prone to gross exaggeration and probable dishonesty. I am unable to accept much of what she said about any matter unless it has been corroborated by other evidence which I accept. My reasons for rejecting her as a reliable and truthful witness will be apparent from these reasons. If events had occurred as she described they would have left an indelible impression upon Constable McGreevy. Furthermore, it seems to me highly improbable that the offender could be pulled through the window of a car or at least improbable that it could be done without significant difficulty. The plaintiff spoke of no particular difficulty in doing so. I reject the plaintiff’s version of the incident, and I also reject her evidence that she fell to the roadway, injuring her wrist. I accept she was struck on the nose as Constable McGreevy described but find she suffered no other injury in the incident.
  1. [42]
    It seems to me that a perusal of the logbook and a consideration of Constable McGreevy’s evidence demonstrates the falsity of the plaintiff’s assertions about the work she did over the balance of her shift. Constable McGreevy’s evidence that he wrote the details of the Code 2 job whilst the details were being broadcast over the communications radio in the police vehicle is logical and persuasive. It is because of the need to accurately record such matters that the non-driving officer records such details in the logbook. In my view, it is impossible to accept that if Constable McGreevy had been driving, the plaintiff was so affected by her injuries that she was unable to write down the relatively short details of this urgent job. In my view, the fact that the logbook is entirely in Constable McGreevy’s handwriting strongly supports his evidence that throughout the day, including the period after the subject incident, the plaintiff drove whilst he filled out the logbook. I reject the plaintiff’s contrary evidence and reject her evidence about the subject incident.

Consequences of the October Incident

  1. [43]
    The logbook shows that the plaintiff and Constable McGreevy finished work that day at about 1 a.m. The plaintiff says that she then attended Logan Hospital. The records of the hospital disclose no such attendance. The plaintiff says that when she was at the hospital she spoke to a nurse who told her she would have to wait to see a doctor. She said that instead she decided to go home. She then had two days off work before seeing Dr Kelley, her general practitioner, on 2 November 2006. Whilst her evidence about this is a plausible explanation for the fact that there is no record in the hospital records of her attendance, I shall refer at various times during this judgment to statements she made to others about the treatment she received at the Logan Hospital and about the nature of her injuries arising from the incident. Consideration of those matters does the plaintiff little credit.
  1. [44]
    The defendant’s counsel was critical of the plaintiff’s description of her injuries and symptoms and even more so of her history provided to various examining doctors. In order to properly consider the matter it is necessary not only to scrutinise the plaintiff’s testimony in court, but to examine the records of her attendances upon medical practitioners, especially those of her general practitioner and to consider her reported history to various specialists.
  1. [45]
    The medical records of her GP contained in exhibit 1, volume 1 are, quite voluminous. The medical notes of Dr Kelley of 2 November, two days after the subject incident, records as follows:[1]

“Sustained broken nose 2 days ago. Attended Emergency Department. Not displaced. Keen to return to work. Requires return to work certificate. Offered certificate for return on restricted duties to avoid possible re-injury but says going part time and moving to less problematic area so prefers just to return to normal duties. Aware to be careful to avoid injury.

Didn’t start anti-depressants as still breast feeding at night. Weaning off, once stops to start them and to come in to assess progress.”

  1. [46]
    The reference to anti-depressants therein was a reference to a prescription which was provided by her GP on 19 October 2006. On that occasion she also saw Dr Kelley. She referred to an incident at work 16 months earlier when she was assaulted and spat on and sustained fractured ribs. She referred briefly to such an incident in her evidence-in-chief. She said she was pregnant at the time. She told Dr Kelley on 19 October that she was feeling down and withdrawn but had no problems with her daughter with whom she felt very close. She said she was not enjoying life but used to be very sociable. She said she had vaguely considered self harm but not seriously and had no plans in that regard and felt positive. She said that she accepted she was low and withdrawn and wanted to act on it. Dr Kelley noted that the plaintiff appeared to have good insight, had already made some lifestyle changes and had good rapport. She was prescribed an anti-depressant, sertraline, and was to see Dr Kelley again in three weeks or sooner if required. There was a notation that she was given information on a psychologist and that the plaintiff told Dr Kelley that she could access the psychologist at work if she wished. I shall refer to the importance of this last comment by the plaintiff later. It is of some importance in the assessment of the plaintiff’s credit.
  1. [47]
    Counsel for the plaintiff submitted that the reference to the Emergency Department in the notes of 2 November 2006 supports the plaintiff’s assertion that she attended Logan Hospital on 1 November. I accept that to be so. Reference to having sustained a broken nose is in my view probably an indication that the plaintiff felt it was broken, and told Dr Kelley that, rather than a positive diagnosis to that effect.
  1. [48]
    The plaintiff’s next consultation with her general practitioner was not until 15 December. On this occasion she saw a Dr Crilly, who recorded some greater detail about the circumstances of the incident including “pulled suspect form (sic) car. Was punched in the face.” She complained of difficulty breathing through her nostril but of not being “under ent r/v” (ear nose & throat review). She complained also of locking of the right wrist with onset “four weeks ago” and of difficulty lifting her 7 month old child at night. It was also said that her thumb locked in the extended position and that extending the elbow caused pain in her right bicep. I note that she did not mention to Dr Kelley that she injured her wrist with immediate pain in the incident when her nose was struck. This failure, along with my assessment about the lack of reliability of the plaintiff’s evidence about the incident and indeed all other matters, is important in the assessment I made that she did not injure her wrist in the subject incident.
  1. [49]
    I my view there is nothing in either consultations to cause me to doubt that the plaintiff suffered a blow to her nose in the incident on 31 October, or that she attended the Logan Hospital in the circumstances she has described, but I find she suffered no symptoms arising from the incident other than those related to the blow to her nose.
  1. [50]
    The defendant’s counsel also asserts that any psychological or psychiatric incapacity of the plaintiff is unrelated to the incident of 31 October 2006. In so far as she has significant psychiatric injuries he says it is due to other factors, in particular the difficulties she had in her relationship with her partner and with his own psychiatric issues. The plaintiff in evidence said that whilst there were such difficulties they were not responsible for her psychiatric incapacity and the consequent difficulties she had with her employment.
  1. [51]
    She gave evidence of developing night sweats and recurrent intrusive dreams associated with the incident very shortly after it had occurred. She said she quickly developed panic attacks and became hyper-vigilant with a heightened startled response. She said these symptoms occurred prior to her commencing work at the Logan Hyperdome Police Beat where she worked from late 2006 or early 2007. She said she commenced using anti-depressants prescribed by her general practitioner from soon after the incident.
  1. [52]
    Perusal of her general practitioner records does not, in my view, support the plaintiff’s case that she developed a significant incident related psychiatric reaction shortly after 31 October 2006.
  1. [53]
    On 19 October 2006, some 12 days before the incident, she had in fact seen one of her regular general practitioners, Dr Kelley, as I previously set out. A number of psychiatrists who gave evidence before me accepted, when taken to that notation, that it encompassed a number of symptoms consistent with a pre-existing depression.
  1. [54]
    On 2 November 2006 when the plaintiff again saw Dr Kelley there is no record of her mentioning her psychiatric condition and certainly not attribution of it to the incident. Dr Kelley merely records that she had not started the anti-depressants, prescribed on 19 October, as she was still breast feeding but would start once she had weaned her child.
  1. [55]
    The next consultation was that with Dr Crilly, on 15 December 2006. There is no mention of any psychological symptoms and no prescription for anti-depressants. Her next consultation was again with Dr Crilly on 18 January 2007. There is reference to MRI scans on the wrist to be preformed on the following Tuesday but no mention of any psychological symptoms and no prescription of anti-depressants.
  1. [56]
    There is mention of a WorkCover form to be completed. Such a form, executed by Dr Crilly on 15 December 2006 is part of the admitted documents (Exhibit 1, Volume 2, Tab C, p 350). The document indicates that the plaintiff was asserting that she injured both her right wrist and nose during an “arrest at work”.
  1. [57]
    That evidence supports the view the plaintiff was then asserting she had injured her wrist in the incident but in view of my findings as to how the incident occurred, and as to the unreliability of the plaintiff’s evidence, this does not persuade me of any connection between the incident and symptoms in her wrist from which she suffered. This is particularly so having regard to the evidence of Dr Couzens that lifting a small child is probably the most common presentation for an injury of the sort the plaintiff complained of. Dr Couzens was a specialist hand and arm surgeon, whose report the plaintiff tendered (See his evidence of T3-4,l5ff). Dr Scott, an orthopaedic surgeon who operated on the plaintiff’s wrist also said her condition could have been caused by lifting a small child (T5-54, l 10/15).
  1. [58]
    Her next consultation with her GP was again Dr Crilly, on 18 January 2007. There is reference to MRI scans on the wrist to be performed on the following Tuesday but no mention of any psychological symptoms and no prescription of anti-depressants. On 29 January there appears to be a consultation with another GP at the practice, Dr Harvey and a request for x-rays of her nasal bones, arising from an “injury three months ago”. There is no mention of psychological symptoms or prescription of anti-depressants.
  1. [59]
    On 8 February she again saw Dr Crilly. She mentioned an orthopaedic surgeon’s consultation on 13 February and of seeing an ear nose and throat specialist on 7 March. There is no mention of psychological distress or any prescription for anti-depressants. It is recorded that ibuprofen, an anti-inflammatory, no doubt for her wrist and which had been prescribed on 15 December 2006, was ineffective and a prescription for naproxen was substituted.
  1. [60]
    The next consultation was again with Dr Crilly on 12 March. It was again primarily in respect of her right wrist for which she was awaiting surgery in May 2007. It was said that she was fit for full, office work duties. Again there was no mention of any psychological symptoms and no prescription of any anti-depressant medication.
  1. [61]
    The next consultation was on 1 June 2007. Although there is no reference to psychological symptoms, there is reference to the fact that she had commenced taking the sertraline tablets, which had been prescribed on 19 October 2006 and that she felt much better. There is no mention of any psychological effects of the October incident.
  1. [62]
    The reason for her deciding to then commence taking the medication prescribed over 7 months earlier is not clear. One must look elsewhere, in my view at the records of a psychologist Julie Harris who saw the plaintiff regularly in 2007, for the reason for her commencing this medication at that time.
  1. [63]
    There is an unrelated consultation on 8 June relating to a horse standing on her left foot but again no record of any compliant about psychological symptoms. Similarly a consultation of 19 June makes no mention of psychiatric symptoms and is otherwise for an unrelated condition.
  1. [64]
    On 30 June 2007 she consulted Dr Crilly. She spoke of her recent rhinoplasty and of an operation on her wrist. There is a notation “sweats? Sertraline”. There was evidence from Dr Larder, a psychiatrist, that sweating can be a side-effect of Sertraline and I find this is the import of that notation. There are notations about her wrist. There is no specific elucidation of psychiatric symptoms but there is a notation “husband attempted suicide so admitted. ct sertraline notices irritable if misses more level when on meds copes better.” This clearly relates to psychological symptoms but does not suggest that she complained that such symptoms were related to the incident of 31 October.
  1. [65]
    On 12 September 2007 she told Dr Crilly that she wanted to stop setraline as she had become very tired. She indicated that her husband had taken a further overdose and that an ambulance had to be called as he was unrousable. She said that as a result she “had huge panic attack wiht (sic) chest pain afterwards, also kept crying for no reason few weeks ago. wants to shield daughter so no memory of dad in psyche ward has cheerful presentation to the world - tends to laugh when under pressure. not sure if husband severely depressed or there is an element of manipulation.” Again it can be seen that this notation contains no suggestion by the plaintiff that she attributed any part of her psychological symptoms (namely stress, tiredness, panic attack with chest pain, crying for no reason) to the work related incident of 31 October 2006.
  1. [66]
    On 15 October 2007 she again saw Dr Crilly in respect of what is described in the notes as “depression”. There is reference to her husband going to a tribunal and to loss of libido which it was thought might be a side effect of her setraline but that it could be due to depression. Again there is no indication that any psychiatric symptom was related to the subject incident.
  1. [67]
    The consultation of 17 October 2007, again with Dr Crilly, makes no mention of psychological symptoms but there is a script for the first time for the drug, effexor, an anti-depressant. This prescription was again repeated on 20 November and 13 December 2007 but there was again no mention of any relationship between the incident and her symptoms. On 9 January 2008 the plaintiff again saw Dr Kelley. Dr Kelley records that she was generally tired with “achy headaches” for “several weeks”. There was said to be “lots on at work – busy with court cases” but no other symptoms. The plaintiff indicated to Dr Kelley that she “Feels viral like with EBV”, an obvious reference to epstein-barr virus which is referred to later in the note.
  1. [68]
    In my view it is extraordinary that if the plaintiff had developed symptoms, including intrusive dreams, panic attacks and hyper-vigilance soon after the incident as she described in her evidence (See T1-55, ℓ 28ff), that she would not have made these symptoms known to her general practitioner. Symptoms she did describe – tiredness and headaches – she attributed instead to a virus.
  1. [69]
    On 7 February 2008 she saw Dr Crilly. She was again prescribed effexor though there is no reference to the specific psychiatric symptoms from which she then suffered. The consultation was primarily in respect of headaches she had as a result of “being ko’d loading horse into trailer. Went to Beaudesert… suture forehead.” When she saw Dr Crilly again on 18 February 2008 she told Dr Crilly that in that incident she had in fact suffered a fracture to her skull and that she “would like nose redone as headaches and snoring”. This is a matter to which I shall return as the plaintiff says that a second nose operation was unrelated to the incident of early February 2008 but was due to the failure of the first nasal operation. Once again however there was no reference to psychological symptoms arising from the subject incident.
  1. [70]
    On 20 March 2008 she saw Dr Crilly and asked for a clearance for an immediate return to work. She said she was feeling better than she had for a long time and that her husband was also doing well. She said she had no headaches, dizzy spells or vomiting.
  1. [71]
    On 18 June she saw Dr Petersen at the same medical practice. The consultation related to her nasal surgery follow up but she also indicated she needed a prescription for effexor. There was no reference to the cause of the symptoms for which this drug was required. On 26 June 2008 she told Dr Crilly that she had applied for a position with the mounted police and was “not happy working with people”.
  1. [72]
    Perusal of subsequent consultations does not support the case that the plaintiff complained to her general practitioner about the incident of 31 October 2006 causing the onset of any psychological or psychiatric symptoms.
  1. [73]
    Of importance is a consultation of 11 March 2009 which Dr Crilly had with the plaintiff’s mother, who, it seems, came to her to express her concerns about her daughter’s wellbeing. Her mother reported signs of depression and, it seems, was worried about the plaintiff’s possible suicidal ideation. She had apparently told her mother “she wants to get away from everyone” and had told her husband (whether the plaintiff’s or her mother’s is unclear) that she “has thought about it”. Her mother said there were signs of mania in that the plaintiff had spent money recklessly and that she did not like herself. In the last two weeks there was said to be a broken down relationship with her family coinciding with her ceasing medication. There was reference to “assaults at work. nose, tendons, spat on and blood.” and to “3 ops” (presumably reference to her nasal and wrist surgery). There was also a reference to a similar episode when the plaintiff’s maternal grandmother had passed away 11 years earlier. The plaintiff was said by her mother to be having feelings of paranoia, that everyone hated her and that she blamed others for difficulties in her relationship. Interestingly, due to the fact that the plaintiff married only in August 2008 it was also said the plaintiff had forced her husband to sign divorce papers under threat of committing him and her mother also said that she was not going to work.
  1. [74]
    Whilst this evidence is of some relevance, its effect is much diminished as the mother did not give evidence. I therefore place no reliance on that consultation, other than the fact that it supports the view that the plaintiff was exhibiting significant symptoms of psychiatric distress.
  1. [75]
    Finally on 12 March 2009 the plaintiff told Dr Crilly she was seeing a Queensland Police Service Psychologist. There was reference to a number of incidents at work including the fracture to her ribs, having blood spat on her face, which are unrelated to this incident, and being punched in the face and having a tendon torn, which are obviously references to her alleged nasal and wrist injuries said to be suffered in the subject incident. She was said to be suffering severe anxiety. Interestingly it is recorded that the plaintiff “feels as if has been feeling like this for a couple of years. thinks has emotional issues from childhood – learnt to be detached otherwise good plus intercurrent stresses”. A referral letter was written to Isabel Farmer, who is apparently a psychologist. The plaintiff said she thought that she may have seen Ms Farmer once but does not appear to have any clear recall of this.
  1. [76]
    This notation of 12 March 2009, 2.5 years after the incident of October 2006, appears to the first reference in the GP’s records which in any way suggest the plaintiff linked any psychological symptoms to the subject incident and then only indirectly, along with a number of other work related incidents and what she thought were emotional issues from her childhood.
  1. [77]
    In my view the GP’s records do not support the plaintiff’s assertion that she developed psychiatric symptoms of the sort described in her evidence from a time shortly after the subject incident. In my view the cause of her psychological distress can be gleaned from the records of Julie Harris who was a psychologist employed with the Queensland Police Service.

Records Police Psychologist

  1. [78]
    During the course of the plaintiff’s employment she worked at the Police Beat at Logan Hyperdome from about late 2006 until mid-2008. Throughout much of this time she had consultations with Julie Harris.
  1. [79]
    During the plaintiff’s evidence I gained the strong impression that she wished to downplay the importance of these consultations. In fact, she said she did not know Ms Harris was a psychologist, despite the fact there were a number of emails from Ms Harris to the plaintiff clearly indicating that she was, despite her telling Dr Kelley on 19 October 2006, before the October incident, that she had access to a psychologist at work and despite the reference in the GP notes of 12 March 2009 about “seeing QPS psychologist”. She described the consultations as little more than chats between girls and suggested they had taken place in an informal way at, for example, the Coffee Club in the Logan shopping centre (see T3-34, l 5/25 and T4-37, l 23/28).
  1. [80]
    In my view her reason for so attempting to diminish the character of those consultations is because she realised the potentially important effect they might have on my assessment of her claim. Her attempting to do so further undermines her credit. The notes Ms Harris made of those consultations (  Exhibit 2, Volume 2, pps 442-459) reveal that the plaintiff was psychologically agitated in the period of the consultations, namely 8 February 2007 to 12 June 2008, but attributed this to issues, particularly relationship issues with her new husband, and not to the subject incident. Indeed, nowhere in all those consultations is there any reference to any psychological distress arising from the subject incident or to the psychological symptoms that she says she developed soon after, and as a result of, the incident.
  1. [81]
    The plaintiff’s explanation for that fact is that she compartmentalised things and did not want to reveal the role of her work in the development of her psychological distress because of a belief that Ms Harris would tell her work supervisors and so effectively ruin her career with the Police Service. This was, in my view, a strange assertion because the matters the plaintiff did reveal to Ms Harris were deeply personal and ultimately disclosed a significantly agitated personality and resultant adverse effect on her work. They would, in my view, have had as much effect on her career prospects if revealed as an assertion that her distress was due to the subject incident. Furthermore her revelation of the stressors that she told Ms Harris about, in my view, included work matters which strongly gainsays the assertion that the plaintiff made. I do not accept the plaintiff’s assertions about the reason she did not disclose the matters referred to in the previous paragraph.
  1. [82]
    It is instructive to note that the plaintiff also saw Lynette Douglas, a senior human resource officer with QPS, on 8 August 2006, prior to the subject incident. Notes of that consultation are at p 460 of Exhibit 2. The notes record that she was then on maternity leave but was having difficulty weaning her daughter off breast feeding and wanted to extend her leave, but to do so needed to be able to take leave in advance. She had been told that was not possible and that “she may have to reconsider whether to stay in the job or go back to Corrections where she feels they better accommodate such situations”
  1. [83]
    Ms Harris’ notes of the various consultations reveal that:
  1. The plaintiff had said on 8 February 2007 that her partner was himself depressed and suicidal and not happy about her being in the Queensland Police Service;
  1. On 1 March 2007, in the plaintiff’s presence, during a home visit, her partner told Ms Harris he thought that she was having an affair with a male co-worker. The plaintiff denied this but admitted, as she did in evidence before me, that she and the male co-worker very regularly texted one another, even late at night. She also said that she was very upset and worried about her partner and that her relationship with him was almost over due to his depression, paranoia and suicidal ideation.
  1. She made an appointment on 11 April to see Ms Harris about “work issues”. On 19 April she said that her boss at the Hyperdome Beat, Luke Appleby, was difficult to work with at times and himself wanted to leave the police service and was really negative. She described problems with an Administration officer. She said she had enough drama at home and did not need drama at work.
  1. On 24 April 2007 the plaintiff told Ms Harris that she had lost weight due to stress. She said that her partner had lost his job, had taken it badly, that he was an ongoing suicide risk and she felt that she was babysitting him. She said she had “98% left the relationship” and wanted it “over”. She stayed only because of her concerns about his suicide risk but said that she had organised her life in a practical way in case he did so. She also said at that time that she wanted to work fulltime at Loganholme Station and wanted to be away from the Beat where she was working. She said she enjoyed her work but that her family did not want her to work fulltime and did not want her to put her daughter into childcare. She said her mother wanted her to stay with her partner and support him through his depression. She said that her partner wished to marry and have a second child but she did not want this. She said she had worked for four years with the police and really enjoyed her work.
  1. On 12 June 2007 Ms Harris spoke to the plaintiff at the Loganholme Beat. She presented as happy, calm and cheerful and said things were “good”. She told Ms Harris that her partner had attempted suicide several times and on one occasion had tried to gas himself in the car after overdosing on medication and drinking a bottle of spirits. She had found and rescued him. She also said that her parents cared for her daughter when she was at work and she cannot trust her partner to adequately care for their child. She said she was unable to leave the relationship as her partner was “too unwell” and was terrified of losing her.
  1. On 2 July 2007 she told Ms Harris that she was concerned about a close friend, also a police officer, who was in a coma from a head injury suffered whilst on duty at Loganholme. She also said that she had required time off work for a nose operation caused by an assault at work in which she had suffered a broken nose. There is no note that she made any mention of any stress or anxiety arising therefrom.
  1. During the next consultation on 1 April 2008 there was “a lot of crying”. She said she had met with her supervising officers (Scott Lacey from Loganholme and Anthony Fishburn from the Beat) and had “lost it” and could not stop crying. She was embarrassed about her work not “being up to scratch” but was working with another more senior officer, Julie Campbell to remedy this. She again said that her partner did not want her working for the police and sabotaged her work with the Police Service in many ways. She said she found she was unable to stand up to him for fear that if she did so this might prompt his suicidal behaviour. She said she also had pressure from her mother to stay with her partner who she said played “power games”, checking her phone bill, selling her car against her wishes and stopping her from socialising with friends. She said she did not tell anyone “how bad it really is” with her partner. She said she was more fearful and upset lately and was “falling apart”. The plaintiff and Ms Harris discussed the plaintiff’s future with the QPS. The plaintiff said she loved QPS work, seeing friends, being by herself, being single and being free to do what she wants. I interpose that there is no note of any suggestion that when discussing her future work with the police that the psychological effects of the incident on 31 October 2006 were raised or indeed that the effects of this incident were raised in any way. Her apparent readiness to discuss work issues stands in contrast to the assertion she made to me that she did not tell Ms Harris of the effects of the incident on her condition for fear Ms Harris would tell others of her real distress and effectively ruin her career with the police.
  1. On 15 April Ms Harris again saw the plaintiff. She records that the plaintiff said she had got into trouble with her officers in charge in relation to taking time away from work and in relation to doing a riding test for the police horse corp. She said she was not coping with her job due to stress and depression (but made no mention of the subject incident) and was not coping with the relationship with her partner or his parents, who had moved in. She said she did not want to get married in August as planned but that guests were booked on flights from overseas. She said she was under pressure from her mother to stay in the relationship and felt that she was letting everyone down. During that same consultation she also said she had spoken to Julie Campbell, the more senior police officer who was performing a mentoring role with the plaintiff, about resigning but was uncertain and wanted to take long term leave to “think about what she wants”. She said that Scott Lacey, who was the officer in charge at Loganholme, had supported her putting in her resignation.
  1. The plaintiff told Ms Harris on 23 May that she did not want to return to the Hyperdome Beat and wanted 12 months off to think about her options at work. She also said she had applied for a position in the police horse squad and was seeing a psychologist for relationship counselling with her partner. She said this was going well, though it was stressful at times. She said she had cancelled the wedding, which had reduced her stress.
  1. Finally on 12 June, her last consultation with Ms Harris, there was discussion about possible work options, namely:
  • Secondment to mounted police;
  • Permanent appointment to mounted police;
  • 12 months’ leave without pay;
  • Return to Loganholme;
  • Resign, which was said to be the plaintiff’s “last choice”.

The plaintiff also expressed relief to Ms Harris at having put the wedding off.

Findings – Psychiatric Injury

  1. [84]
    Having regard to those matters and the absence of complaints to her general practitioners about any psychological effects of the subject incident, which I have already set out, I find that the plaintiff’s history of her psychiatric distress as arising from the effects of the incident on 31 October 2008 is quite wrong. I find the cause of her psychological injury was instead associated with her stressful personal and familial circumstances. I find this significantly adversely affected her capacity to perform her duties as a QPS officer which might itself have caused some stress and conflict with senior police officers at her work.

Nasal Injury

  1. [85]
    The plaintiff maintains that she suffered a fractured nose as a result of the incident but concedes that this was not diagnosed by her general practitioner or by the nurse at the Logan Hospital which she attended on the night after the incident. In evidence she said she thought that it may have been broken but that it was never definitively diagnosed. She herself says that after the incident her nose was numb but did not bleed. She says there was an area of bruising and swelling and a noticeable red spot.
  1. [86]
    The plaintiff told Dr Slack, a psychiatrist, in 2010 that she had fractured her nose, attended hospital and was given a referral to an ear, nose and throat specialist. This is clearly incorrect. She was only referred to an ENT specialist, Dr Earnshaw, in about March 2007 and was certainly not referred to an ENT specialist by anyone at the hospital.
  1. [87]
    Dr Kelley did provide a medical certificate indicating the plaintiff had a broken nose. Presumably this was on the basis of the plaintiff telling Dr Kelley of that fact and of her attendance at the emergency department at Logan Hospital, rather than a specific diagnosis by Dr Kelley.
  1. [88]
    Dr Crilly on 15 December 2006, refers to her having good air entry which clearly means there was some discussion about her nose. On 29 January 2007 Dr Peter Harvey made a request for an x-ray of her nose.
  1. [89]
    On 8 February the plaintiff told Dr Crilly she had an appointment with an ear, nose and throat specialist on 7 March. In his report to Dr Crilly of 16 March 2007 (Exhibit 1, Volume 2, Tab 13, p 324), Dr Earnshaw, the ENT specialist, said that there was a small dorsal hump on the plaintiff’s nose. He noted that the plaintiff said that her airway had been effected. On examination Dr Earnshaw said there was no evidence of any displacement of the nasal bones but noted a congested nose with some septal displacement to the right. He arranged for a nasal scan.
  1. [90]
    When giving evidence before me Dr Bayley, a plastic and reconstructive surgeon who performed an operation on the plaintiff’s nose some time later, explained that the upper third of the nose is bony and the lower two thirds cartilaginous. He explained that a nose can be displaced either by a fracture of the bony structure of the top third of the nose, or by a bending or rupture of the cartilage in the bottom two thirds.
  1. [91]
    Despite the fact that the plaintiff said in evidence that she suffered no nasal bleeding, Dr Earnshaw in a report to Workcover on 25 February 2007 (page 325 of Exhibit 1) records that she suffered “trauma to her nose and associated bleeding”. Once again this is likely to have been what he was told by the plaintiff and is inconsistent with her oral evidence before me.
  1. [92]
    Dr Earnshaw said that she was fit to continue with her normal occupation but opined that the deviated septum and small nasal bump were consistent with previous trauma and could be straightened in an operation.
  1. [93]
    Despite the generally adverse view I take of the plaintiff as a reliable witness – though sympathetic because of her obvious distress and her psychiatric disturbance to which I have referred – I accept that in the subject incident she suffered a blow to her nose which, though it did not cause bleeding, did cause some deviation of the cartilage of the septum and the development of a small lump which caused some change to her breathing and led to her initial surgery.
  1. [94]
    Dr Earnshaw preformed surgery to repair her nose on 4 July 2007. His report of 17 July 2007 to WorkCover indicates that post operatively the external nose was vastly improved with a clear straight nasal dorsum. The septum was in good position and her airway vastly improved. She was said to be very happy with the end result.
  1. [95]
    Dr Earnshaw saw her again on 22 February 2008 after she had been again referred by Dr Crilly. Dr Crilly’s notes of 7 February 2008 record that the plaintiff saw her at that time complaining of having been knocked out loading a horse into a trailer. She is said to have then gone to Beaudesert (taken to mean Beaudesert Hospital) and this is confirmed by Beaudesert Hospital records (Exhibit 10) where her forehead was sutured. Dr Crilly said she had headaches since but no blurred vision and no vomiting or nausea. She was said to be going to Vanuatu.
  1. [96]
    The notes of Dr Crilly clearly support the view that the plaintiff told Dr Crilly that she had suffered a skull fracture and notes “breathing congested, would like to have nose re-done as headaches and snoring”.
  1. [97]
    At the trial the issue of how the plaintiff struck her head on about 2 February and the consequences of it was explored by the parties. She gave apparently inconsistent versions of being struck by a horse or of striking her head on a car door.
  1. [98]
    After her evidence had been given the records of the Beaudesert Hospital were produced. They show an admission on 2 February. The progress notes indicate that she gave a history of accidently hitting a car window with possible loss of consciousness but no headaches. There was on examination, said to be a two centimetre cut to her head. She had a GCS of 15/15. She was given antibiotics and her laceration was sutured. The Rural Emergency Flow Sheet in the hospital records show her admission at 10:55 am on 2 February with a presenting compliant of:

“Hit in middle of forehead by car door. ?K’OD. Knocked to the ground.”

  1. [99]
    The hospital records of 29 February 2008 refer to her presenting with complaint of “post fractured skull” and a notation that she was to have a rhinoplasty on 24 April 2008 “(from another incident)”.
  1. [100]
    The progress notes of that day, namely 29 February, record;

“After work clearance.

Head injury/laceration 2/2/08

Seen here and

D/c but continued pain/headache/concussion

Private CT Logan -> fracture frontal bone.”

  1. [101]
    It is then said that she had gone overseas but returned with no ongoing problems. Despite what is in the hospital record, no records of any CT were produced. The plaintiff accepted in evidence that she had in fact not suffered a skull fracture.
  1. [102]
    I am unable to conclude how the plaintiff suffered the obvious injury to her forehead in early February 2008. Some doctors were told by her she was struck by a horse. That may or may not be so. It may be as reported to the Beaudesert Hospital that she accidentally struck the window of the car door. There may have been some other unknown cause. Because of my significant concerns about her reliability, I do not accept her evidence as to how the incident occurred but accept she suffered a significant blow to her forehead. A photo admitted into evidence shows sutures to the plaintiff’s forehead just above the inside of her right eyebrow. Unfortunately the photo is taken in such a way that the whole of her face is not seen. In particular, the nose is not clearly to be seen.
  1. [103]
    Dr Earnshaw’s report of 22 February (p 327 of Exhibit 1) records that she had recently sustained a head injury with a resultant fractured skull whilst at work as a police officer and that she had noticed difficulty in breathing through her nose. He said that clinically she did have a significant septal deviation to the right. He noted her past history of septoplasty and said that “up until this accident her nasal airway had been most satisfactory”.
  1. [104]
    As a result of her condition Dr Earnshaw performed a revision septoplasty and submucous resection on 22 April 2008. He gave evidence this was dictated soon after his consultation with her.
  1. [105]
    In my view a perusal of Dr Earnshaw’s reports supports the view that this second septal deviation was probably the result of the incident in which she suffered the blow to her head on 2 February 2008. The fact that up until the incident in which she suffered the laceration to her forehead she had no difficulties, but did thereafter, supports this view. Whilst the plaintiff probably did not in fact fracture her skull as she told Dr Earnshaw and others, I find that based on the history she provided to Dr Earnshaw that the second septal deviation was due to this incident of 2 February and was not causally linked to the incident of 31 October 2006. I do not accept that her nose spontaneously collapsed bringing about the second and subsequent operations.
  1. [106]
    I am mindful of the fact that Dr Bayley who performed a third operation on the plaintiff’s nose says it is possible if the cartilage is not removed in the earlier operation that the cartilage may have a memory and may spontaneously deviate to the right. Dr Earnshaw gave similar evidence and in fact attributed this operation to the failure of the first.
  1. [107]
    In my view, the clinical history the plaintiff provided to Dr Earnshaw and Dr Crilly of onset of difficulty of breathing only after the incident of 2 February and the history she gave to Dr Earnshaw that up until this accident her nasal airway had been most satisfactory, militates against such a finding. In my view it is likely that the significant blow that the plaintiff suffered to her forehead also included some trauma to her nose. She said the force was significant. The photo of her sutured forehead unfortunately shows little other than the sutured forehead. It is not possible to tell whether or not, for example, there was bruising or swelling to the nose itself. In any case I do not think that is definitive. What I primarily rely on is the history that the plaintiff provided to Dr Earnshaw and to Dr Crilly. I make this finding in circumstances where as I have said I am unimpressed by the plaintiff as a reliable and honest witness for reasons that are apparent from an overall perusal of my judgment.
  1. [108]
    Dr Earnshaw reported on 2 May after the second operation that she had a clear nasal airway, a central septum and that the dorsal bony deformity had been corrected.
  1. [109]
    A third operation was subsequently performed by Dr Bayley. He has provided reports of 20 June, 21 October and 23 December 2008. He incorrectly records a fracture of her nose in July 2007 (which was in fact when Dr Earnshaw performed the first operation) and says the first surgery was performed in October 2007 and further surgery in March 2008 (when in fact Dr Earnshaw’s second operation was on 22 April 2008). He comments that her first surgeon has “apparently… suggested that she is going to need to continue mouth breathing as her nose collapses as she tries to nose breathe”. There is nothing in Dr Earnshaw’s report to suggest that he was of the view that she was going to need to continue mouth breathing or that her nose collapses when she tries to nose breathe.
  1. [110]
    I can find no such suggestion in Dr Bayley’s reports that he was in fact aware of the incident in February 2008. Dr Bayley says she has “some early inverted V deformity from midvault collapse” and recommended further surgery to repair the problem.
  1. [111]
    In his evidence he said that this could have been a collapse following the second surgical repair or due to a fracture.
  1. [112]
    Dr Bayley also said in his report of 23 December 2008 that he had performed the operation on 26 November 2008 with a very good cosmetic result and that she was happy that she no longer had any nasal collapse in the midvault.
  1. [113]
    Subsequently there are some records of ongoing symptoms when she saw Dr Bayley about up until mid 2009.
  1. [114]
    On the basis of the evidence which I accept, I am unable to find that the physical effects of any nasal injury on 31 October 2006 continued beyond her recovery from the initial surgery which would have been relatively soon after its performance on 4 July 2007. In other words, the effect of the incident, so far as it relates to her physical consequences to her nose, were entirely dissipated within about 9 or 10 months after the incident of 31 October 2006. There was some pain and inconvenience with her nose, followed by an operation from which she fully recovered over a period of about a month. Thereafter problems with her nose, I find, are related to the incident of 2 February 2008 in which she may possibly have suffered a skull fracture due to a blow near to her nose. I say this in circumstances where the Beaudesert Hospital records of 29 February 2008 referred to the fact that she had attended a private CT at Logan which indicated a fractured frontal bone, but those records were not produced.
  1. [115]
    In my view it is likely that the blow to her frontal bone in February 2008 was sufficient to have caused a cartilaginous deviation of the nasal septum to the right. The history she gave to Dr Earnshaw of good nasal function up until that incident strongly supports that finding.
  1. [116]
    In the circumstances the plaintiff’s damages, in the event that she was able to establish negligence arising from the first incident, would be limited to loss arising from the injury to her nose, up to the time that she recovered from the first nasal surgery performed by Dr Earnshaw in July 2007.

2009 Training

  1. [117]
    Perhaps because of the plaintiff’s unhappiness as a result of her major depressive disorder, perhaps because of her love of horses, she determined to obtain employment with the mounted police and to leave the Logan Police Beat and Logan Station. I do not accept that the decision was in any way connected to the October 2006 incident. She started with the mounted police on 30 June 2008. The officer in charge of the mounted police at that time was Senior Sergeant Mark Paroz. He gave evidence that in that role she performed the full duties of a mounted police officer without significant difficulty. He described her as a very competent horse person and that her skills as a police officer were fine. He said she was rostered for operational duties many times. I accept his evidence as to her capacity to work.
  1. [118]
    Unfortunately from 4 February 2009 she took extended periods of sick leave. These were, I find, due to her major depressive disorder which, as I have said, was unrelated to the October incident. In order to return to her full operational role she was required to undergo training in September 2009. Dr Khoo (the plaintiff’s treating psychiatrist), the plaintiff and Peta Mulvey, a QPS rehabilitation counsellor agreed on such training. In the pleadings it is admitted that such discussions commenced in about June 2009. It was further admitted that on or about 25 August 2009 the defendant communicated with Dr Khoo about the conditions upon which the plaintiff’s return to work could be facilitated (see para 9(b) of the Further Amended Statement of Claim and para 8(b) of the Further Amended Defence).
  1. [119]
    The plaintiff gave evidence that she thought the training was to be normal OST training, similar to that Shipman had provided (see T1-64, l 25-42). Because of what I have found with respect to the training Mr Shipman provided to the plaintiff in September 2006, this must have been known to the plaintiff to have involved instruction in removal of uncooperative drivers from a motor vehicle. During the plaintiff’s cross-examination (T3-37, l 17) she accepted that she envisaged the training in 2009 would involve dealing with motorised offenders.
  1. [120]
    A Return to Work Plan (Exhibit 1, Volume 2, Tab G, Page 575-6) was signed by the plaintiff, Dr Khoo and Peta Mulvey, on 11 and 13 September 2009. The Plan was for Block I training to be undertaken at the Belmont Shooting Range on 21 September 2009 and Block II training to be undertaken at the Oxley Police Academy. It seems clear to me that a person viewing this plan would have at least  appreciated that there was likely to be significantly different training conducted on 21 September and on 24 September and, as I have said, the plaintiff envisaged dealing with motorised offenders would be dealt with.
  1. [121]
    There is no written documentation to suggest Dr Khoo requested any detailed information about the content of Block I or Block II training.
  1. [122]
    The plaintiff’s Further Amended Statement of Claim does not assert that Dr Khoo was provided with misleading information about Block II training. It is not alleged she was told that it did not involve a scenario of removing drivers from vehicles. Rather, it is put on the basis that she was not specifically informed of that fact. In para 9A(c) of the Further Amended Statement of Claim the plaintiff pleads that “Dr Khoo had been notified of the need for the plaintiff to participate in OST training however Dr Khoo was not informed that the training would involve” such a scenario.
  1. [123]
    In response to this allegation the defendant pleads in para 8A(b) of the Further Amended Defence that Dr Khoo had been notified of the need for the Plaintiff to participate in Block I and Block II OST training and alleged Dr Khoo did not request any specific instruction concerning the training that was to be provided.
  1. [124]
    The plaintiff further alleges in its Further Amended Statement of Claim that Dr Khoo approved the plaintiff’s attendance on the basis that the training involved firearm and accoutrement training and that she was not advised the training would involve participation in a mock exercise of the sort I have referred to. In response to this, in para 8A(c) of the Further Amended Defence the defendant pleads that whilst Dr Khoo was not directly advised by the defendant that training involved such a mock exercise, she did not communicate to the defendant any restriction on the training that she could undertake and did not indicate that it should be restricted to firearm and accoutrement training and not include such a mock exercise.
  1. [125]
    Her return to work plan was implemented and appeared to be progressing well. By 11 September she was working three full days a week. At about this time she participated in the police games and won many medals for horse riding events, an indication of her significant improvement at that time.
  1. [126]
    She then attended Operational Skills and Tactics training on 21 and 24 September 2009. On the 24 September this training involved the plaintiff’s participation in the mock exercise in the removal of a non cooperative offender from a motor vehicle similar to that, I find, she had undertaken during her recruit training at the Academy and again in September 2006 when trained by Shipman.
  1. [127]
    Ms Flaherty in addition to giving evidence of her own recruit training and subsequent experience in the police service also gave evidence of attending the plaintiff’s return to work training in 2009. She said that such training was at the back of the Police Academy and that she was engaged with the plaintiff in performing the mock extraction of an offender from a police car. She said that the training involved intercepting a vehicle with an uncooperative driver. She said on this occasion she and the plaintiff had spoken and the plaintiff had asked her to take on the primary role but she did not notice that the plaintiff had “anything wrong” with her. She said that she reached in and took the keys from the ignition of the vehicle (T3-92, l40) and had the plaintiff undo the driver’s seatbelt by going into the vehicle through the passenger side. She said that she, Ms Flaherty, then removed him by using a wrist lock. In cross-examination she remained certain that she had not been instructed not to reach in to take keys but said she recalled being told of the danger of doing so (T3-96, l13-24). During cross-examination she also admitted she was now a friend of the plaintiff and had been a referee for her on a number of job applications.
  1. [128]
    Consideration of the circumstances of the plaintiff’s participation in the 2009 retraining must be seen against the background that she was then under the care of Dr Khoo, a specialist psychiatrist. The plaintiff had first seen Dr Khoo on 9 June 2009. She provided a history to Dr Khoo of the incident on 31 October 2006 generally consistent with her evidence, which of course I have not generally accepted. She told Dr Khoo the driver broke her nose with her elbow and that she “ended up lacerating a tendon on her right wrist”. She told Dr Khoo also that the handcuff had in fact “severed a tendon”. Of course, she suffered no such tendon injuries, even on her own evidence. This grossly exaggerated report of her injuries is typical of statements she made to doctors. It was grossly inaccurate and is another reason why I have found her evidence so unreliable and why I am not prepared to act on it unless there is corroboration which I do accept. In my view her inaccurate and dishonest representation of her symptomatic history to Dr Khoo was also a significant factor in what I find was a misdiagnosis of her condition by Dr Khoo.
  1. [129]
    She described to Dr Khoo the emergence of intrusive dreams two weeks after the incident. I do not accept, having regard to her GP’s records and the notes of Ms Harris’ consultation, that she suffered intrusive dreams related to the incident then, or at any later time.
  1. [130]
    In my view the real reason she saw Dr Khoo was the unrelated depression from which she suffered. Such depression had first manifested itself, though relatively mildly, prior to the incident of 31 October and had resulted in her seeing her GP and being prescribed antidepressant medication on about 16 October 2006. Her condition did not manifest itself in any acute form for sometime thereafter. It did probably not do so until sometime before April 2008 when Ms Harris said the plaintiff, during a consultation, cried a lot, said she had “lost it” during a meeting with senior police and was embarrassed about her work not being up to scratch. It may in fact have emerged as significant depression by 12 September 2007 when she told Dr Crilly she had a “huge panic attack” following an attempt at suicide by her partner and that she “kept crying for no reason a few weeks ago”. I think it unlikely that any depression was significant prior to then.
  1. [131]
    In my view, her depressive condition was secondary to her relationship issues, her personal vulnerabilities and to work pressures no doubt associated with her decline in performance which itself, to some extent, was likely to have been related to her depression. I note also other significant work stressors including, for example, her being investigated for plagiarism in regard to assignments she had submitted. In my view, the incident of October 2006 played no part in the development of her depression in 2007 and 2008.
  1. [132]
    Dr Khoo of course came to a very different conclusion. In a letter to Dr Crilly of 17 July 2009 she indicated the plaintiff had a Major Depressive Disorder together with Post-Traumatic Stress Disorder and features of Agoraphobia. In a report to WorkCover of 18 November 2009 she largely attributes these symptoms in 2007 and up to September 2009 to the effect of the October incident. Dr Khoo said that following treatment she was significantly improved. In September 2009 Dr Khoo approved her undertaking “block training”. Dr Khoo said she understood this would involve being retrained in the use of firearms. After her training the plaintiff became, Dr Khoo said, acutely distressed. When she represented to Dr Khoo on 6 October Dr Khoo described her as then being “acutely distressed, agitated, tearful and suicidal”.
  1. [133]
    I specifically reject Dr Khoo’s finding that the plaintiff suffered post-traumatic stress disorder and a major depressive disorder associated with the event of 31 October. In so rejecting her opinion I am conscious that Dr Khoo was not told of the relationship issues with the plaintiff’s partner, and the records of Ms Harris and of her GP were not presented to her. The relationship issues were a very significant stressor and a significant contributor to the development of a major depressive disorder from which she did suffer. I specifically reject Dr Khoo’s finding that she suffered PTSD. In my view the circumstances of that incident of 31 October were not sufficiently threatening to allow such a diagnosis, even if it had caused some form of psychiatric decompensation. As I have said, I in any case specifically find that it did not cause or contribute to the development of her depressive condition either.
  1. [134]
    I was generally unimpressed by the evidence of Dr Khoo. I formed the strong impression she was concerned, in answering questions, not in any way to give an answer which might adversely affect the plaintiff’s case. In my view, she exhibited an unfortunate tendency to see all matters through the eyes of what she believed the plaintiff had experienced which was of course based on what the plaintiff had told her, much of which was inaccurate, indeed untruthful. Such an approach was, in my view, a result of her not being a dispassionate expert but instead exhibiting the affinity which can develop between a treating doctor and her patient. This of course may not have adversely affected Dr Khoo’s ability to effectively treat the plaintiff but did, in my view, mean that I could place little weight on her opinion as to the cause of the plaintiff’s condition.
  1. [135]
    In my view the opinions expressed in evidence by other psychiatrists, Dr Matheson and Dr Larder and most especially Dr Gunn, are to be preferred.
  1. [136]
    Dr Larder during cross-examination (at T3-65 and following) accepted that the material disclosed to Ms Harris and her GP might mean that there was a cause other than the assault for her psychiatric condition. Dr Matheson came to a similar conclusion (see T5-57, l 40ff). I was particularly impressed by the evidence of Dr Gunn. In her cross-examination (at T7-3, l 30ff), and having read the notes of Ms Harris and the general practitioner records, she maintained her diagnosis of major depressive disorder but said “the attribution is different”. She said whether it was due to the assault was uncertain or, to use her words, “is another matter” (see T7‑5 l 38). Dr Khoo did not accept that fact. Her not doing so was, I find, because of her identifying so closely with the plaintiff and her case.
  1. [137]
    The evidence causes me to conclude that agreement was reached about the plaintiff’s participation in training in September 2009 between Dr Khoo, the plaintiff and the police service without Dr Khoo raising concerns about the nature of the training or enquiring as to the nature of Block II training. She agreed she “signed off on it” (T5-47, l 27) but said in her evidence that she “was informed that she would (be doing) firearm training” (T5-47, l 42-3). She said she was told this by Ms Mulvey (T5-48, l 1-2). She also said the plaintiff told her she would be involved in “routine training” but Dr Khoo said she was uncertain what this involved. She said she thought it involved “holding mats and training mats and that’s all I recall”.
  1. [138]
    I do not accept that Dr Khoo was in any way misled as to the nature of Block II training. In my view Dr Khoo either did not enquire from the plaintiff, or from Ms Mulvey, as to what Block training involved as she had no concerns about it at the time or that she was told about it by the plaintiff and still had no concerns. Having regard to the comments of the plaintiff about her understanding of the training she would, if she had asked the plaintiff, have been told this probably involved extraction of offenders from motor vehicles. The strong impression I am left with is Dr Khoo, at the time of signing off on the training program, was not concerned about the content of the training and did not believe that it was likely to significantly adversely affect the plaintiff’s condition.
  1. [139]
    In notes of the consultations that Dr Khoo had with the plaintiff there is a note (Exhibit 1, Volume 2, Tab D, page 405) of a consultation of 10 September 2009 to which she referred in her evidence at T5-49, l 35. It is not particularly easy to decipher the notes but it appears from reading the notation and from her evidence about it that it says “vary duties to add operational duties plus carry firearms. Three full shifts with firearms”. It seems to me from that note that Dr Khoo knew the training involved training in operational duties, in addition to firearms training but does not seem to have requested details of what operational duties involved.
  1. [140]
    Dr Khoo says she discussed the issue of training with the plaintiff and agreed she could undertake it (T5-49, l 35-40). In my view this must necessarily have meant that as a result of what she was told by the plaintiff Dr Khoo did not think that training for operational duties and with firearms presented a danger to her psychiatric health.
  1. [141]
    Although Dr Khoo said she was told by Ms Mulvey that the training involved only firearms I do not accept that to be so, The reality, I find, is that Dr Khoo was at that time not sufficiently concerned about the plaintiff’s condition to either enquire as to the full nature of the training with Ms Mulvey or, having been told by the plaintiff what it involved, was happy to sign off on it. It was of course very possible that she was told by the plaintiff that extraction of an offender from a vehicle might be taught.
  1. [142]
    In making that finding about the extent of Dr Khoo’s knowledge I reiterate that I found Dr Khoo, though no doubt a well qualified specialist psychiatrist, much too close to the plaintiff’s case to be objective. I think it very unlikely that she was told by Ms Mulvey that the training involved only firearm training as she asserted and think it very likely the plaintiff herself told Dr Khoo specifically that it was likely to involve a scenario involving extracting a driver as she had undertaken in earlier POST training, as delivered by Shipman. Dr Khoo would in such circumstances have been aware of the nature of the training and as I have said was not concerned about the plaintiff undertaking it. I find that Dr Khoo was at that time sufficiently sanguine about the plaintiff’s condition to allow her to participate in training without imposing any specific restrictions on the nature of that training.
  1. [143]
    The plaintiff’s counsel in his submissions refers to the fact that the defendant did not call Ms Mulvey to give evidence. In view of the fact that the pleadings did not raise any assertion that Ms Mulvey had told Dr Khoo that the training involved only firearms training I think it improbable, in the absence of anything in writing, that Ms Mulvey would now, four years later, have any proper recollection of the discussion with Dr Khoo. In that circumstance I do not draw any Jones v Dunkel type inference in respect of the failure of Ms Mulvey to give evidence.
  1. [144]
    In my view neither the plaintiff nor Dr Khoo was concerned about the possible effect of the training in September 2009, despite the plaintiff, and possibly Dr Khoo, knowing it was likely to involve training in removing an offender from a vehicle. I find that in such circumstances it was not negligent of the defendant to have allowed the plaintiff to have participated in the training on 24 September, as signed off by both the plaintiff and Dr Khoo

Training

  1. [145]
    It is necessary to consider the content of the training that the plaintiff received at recruit training in 2004 and also during her POST training in 2006. The plaintiff relies on the inadequacy of this training as the primary allegation of negligence against her former employer. I have earlier set out her evidence as to the nature and content of this training. I also set out the evidence of Ms Flaherty and Ms Tukuatu.
  1. [146]
    Steven Shipman undertook the operational skills training, also called POST training, on 12 September 2006. His delivery of that training is confirmed by reference to a document (Exhibit 2, Volume 2, Tab 13) which is signed by both he and the plaintiff. It refers to the training as occurring at “PCYC”. He said he was uncertain whether this was the Logan PCYC or the Beenleigh PCYC and said that he had at times conducted such training at both venues. The documentation shows that a component of the training was “dealing with motorised offenders” (see Exhibit 2, Volume 2, page 415) including “demonstrate and explain (using pain compliance techniques) how to remove a non-compliant subject from a vehicle”.
  1. [147]
    It is clear Shipman gave evidence based on his usual practice of training delivery and that he did not specifically recall training the plaintiff at that time. He clearly said that trainees are specifically told not to reach into a vehicle to recover keys. He referred to the Good Practice Guide and said (T6-6, l 20 ff):

“… in all our guides, very rarely is it ever written the police should never do anything, but in bold, in capitals, its written ‘Never reach into a vehicle to grab the keys’”

  1. [148]
    He said such an instruction was given to trainees and was “an important part that needs to be covered”. He said it was “a never do, as opposed to a should not”. He also said it was part of his regular practice to instruct trainees about the dangers inherent in reaching into a vehicle because an officer’s arm could become trapped and the car driven off or because the officer could be punched.
  1. [149]
    In cross-examination he strongly denied that during training a vehicle was not used but that instead a wall was used to represent the side of the car. He said he could not remember “ever conducting a session like (that)” (T6-13, l 30-40). He denied the suggestion put to him that there was no reference at all in the POST training on that day to the removal of keys from vehicles. He said the Good Practice Guide had always said that officers should never lean or reach into an offender’s vehicle to take the keys (T6-15, l 4-8, T6-16, l 1-8).
  1. [150]
    His evidence in this regard is very strongly supported by the Good Practice Guides and other training guides admitted into evidence (see Exhibit 2, Volume 1, Tab 4, the 2003 Guide; Tab 5, the PSE Unit Facilities Guide of August 2003 and of July 2004 (Tab 6); the POST General Practice Guide of 2006 (Tab 10, p 381FF). All such documents highlight the instruction Shipman says he gave trainees. For example the 2006 Good Practice Guide provides:

“NEVER lean or reach into a vehicle and do not attempt to take the ignition keys”.

Similarly the 2003 Guide says:

“Never lean or reach into the vehicle and do not attempt to take the ignition keys.”

  1. [151]
    It is in my view noteworthy that comparatively little in the guide is printed in bold. In the 2003 guide for example, chapters 4, 5 and 6 contain numerous pages and include the passage I have just set out. Besides those words in bold, only four other words are in bold (see Exhibit 2, Volume 1, p 62). In my view this is a clear indication of the importance of the highlighted issue. It is very strongly counter intuitive to think that the issue highlighted in bold in the guide would not have been taught by Shipman.
  1. [152]
    It is even more counter intuitive to think that trainees would have been taught a technique completely contrary to that highlighted passage during the training of recruits as the plaintiff, Ms Flaherty and Ms Tukuatu asserted.
  1. [153]
    My concern about the likelihood of Shipman’s training being directly contrary to the highlighted issue in the police training guides was heightened by the nature of the evidence given by Darren Tobin and James Donnelly, both of whom were experienced police sergeants.
  1. [154]
    I do not propose to go through their evidence in great detail. I have however considered it. Both were experienced police trainers. Both gave evidence contrary to the plaintiff’s evidence and that of the two witnesses, Flaherty and Tukuatu, to whom I have referred.
  1. [155]
    Tobin gave evidence that trainees are taught about the purpose of keeping themselves outside the vehicle and not risking being trapped inside the cabin of the vehicle. He said “we actually would pinpoint the dangers of reaching in to….. remove the keys” (T6-23, l 44-5). In cross-examination he denied ever seeing keys removed from a vehicle as the plaintiff described in her evidence. Sergeant Donnelly gave similar evidence.
  1. [156]
    I have no doubt that the training delivered to the plaintiff was generally as described by Tobin, Donnelly and Shipman and was generally in accordance with the Good Practice Guides and other guides admitted into evidence. I cannot accept the training was not only not up to the standard set out in the guides but deliberately contrary to one of the few matters highlighted in bold in those publications.
  1. [157]
    The evidence the plaintiff gave at the trial was, as I have said, so unreliable that I have little concern about rejecting her evidence about her training. Rejecting that of Ms Flaherty and Ms Tukuatu caused me some greater concern. I do however reject their evidence, which was so strongly contrary to that of Shipman, Donnelly and Tobin and contrary to that in the guides to which I have referred. Their motivation for giving such directly contrary evidence is not known to me. Whether it was based on faded or inaccurate memory or recollection or because of friendships to the plaintiff or other cause I am unable to determine. I do note however that their evidence as to the regularity of the practice of taking keys from vehicles during operational police duties was vastly different and apparently contradictory. Ms Flaherty referred to this happening in her experience, either by herself or by other officers, 200 or more times over her years of service. Ms Tukuatu said it had happened in all only four or five times over her career, which was shorter than Ms Flaherty’s but still lengthy. While each may have had significantly different experiences and postings in the QPS this difference in their evidence was a fact that had caused me some concern about the reliability of their evidence.
  1. [158]
    Ultimately I am persuaded that the plaintiff was taught not to do what she in fact did in October 2006 by the cogency of the evidence of Shipman, Tobin and Donnelly, by the manner of their giving evidence, by the contents of the Good Practice Guide and other similar documentation, by the inherent unlikelihood of trainers each delivering training content completely contrary to the written techniques set out in the appropriate guides and by the fact that the plaintiff’s own evidence was so unconvincing, indeed dishonest.

Summary of Findings

  1. [159]
    In the circumstances I find:
  1. That the plaintiff reached into the offender’s vehicle in October 2006 to remove the keys of the vehicle;
  1. When she did so, she also did not assess the risk to her safety before doing so and acted contrary to what she had been taught. She made no attempt to restrain the offender or to minimise the risk of her being struck, for example, by placing her left arm across the offender’s torso to restrict that person’s ability to raise her elbow and strike her;
  1. When doing so she allowed her head to enter the cabin of the vehicle as McGreevey described in his evidence;
  1. In reaching into the vehicle to remove the keys as I have described she acted contrary to the training she had received both as a recruit and in POST training in 2006;
  1. She was struck in the nose but suffered no wrist injury in removing the offender from the vehicle. Such removal was effected by opening the door of the vehicle as McGreevey described and removing her in the conventional way. The offender was not dragged out of the window as the plaintiff described and the plaintiff did not fall with the offender on to the road surface;
  1. The plaintiff was able to continue her shift and continued to drive the vehicle throughout it. She did not continually use an ice pack as she described;
  1. In the incident the plaintiff suffered a deviation of her septum which caused her to attend the Logan Hospital, but she did not see a medical practitioner there and was not diagnosed with any injury or referred for any treatment. The deviation of her septum was successfully repaired by Dr Ernshaw.
  1. I find that she had a good outcome from that surgery and no ongoing difficulties with the nose until it was reinjured, possibly in an event on about 2 February 2008. I find that in this event the plaintiff suffered a blow of some type to her forehead causing a laceration just above her right eye and nose, as shown in the photograph and with sufficient force to cause a further nasal deviation which resulted in the second operation by Dr Earnshaw. I find that this operation and subsequent surgery the plaintiff had to her nose to be unrelated the October 2006 incident.
  1. The plaintiff’s psychiatric injuries which developed in 2007 and 2008 were unrelated to the October 2006 incident.
  1. [160]
    I find the plaintiff has not proved negligence in respect of the incident of October 2006 or in respect to the September 2009 training. Her action therefore fails.
  1. [161]
    In the event she had been successful with regard to the incident of October 2006 in which she suffered the nasal injury which was repaired in July 2007 I would be adopting a fairly broad brush approach to assessment of damages, I conclude in such case she would have been entitled to no more than $20,000. Her damages would be limited to general damages to include the effect of the initial surgery and her recovery from that within a short period, probably of about one month, the cost of medical treatment in respect of her nose up until that time ($6,019.75) and some very limited damages associated with economic loss associated with absence from employment at the time of that initial surgery. She would also have been liable for some deduction on account of her contributory negligence in not carrying out a proper assessment of risk. If she had done so she would, at the least, have placed her left arm across the offender’s torso to prevent her striking the plaintiff.
  1. [162]
    If the plaintiff had succeeded with her claim for damages arising from the 2009 training, assessment of her damages would have been more difficult. The issue was not really canvassed in submissions before me. There would have been a need to consider what might have happened to her future career, and the course of her Major Depressive Disorder if the 2009 training had not occurred.
  1. [163]
    In her reports Dr Khoo says the plaintiff decompensated significantly as a result of the 2009 training. Dr Khoo, Dr Larder, Dr Slack and Dr Gunn all provided reports suggesting a significant aggravation of her condition. She subsequently requested a medical retirement from the police service which was accepted on 29 September 2010. There was in my view a significant possibility that she might have retired from the police in any case, even without the training of 24 September, because of the attitude of the plaintiff’s husband to her career in the police service, his own depressive condition and their relationship difficulties and his work, subsequently, in Canberra. Comments the plaintiff had made to a number of others about possibly leaving the police service, even before October 2006, support this view. Ultimately however those matters do not need to be determined as I find that the defendant was not negligent in respect of the 2009 training.
  1. [164]
    Although recovering in September 2009, her full recovery was far from certain, as illustrated by her actual decompensation when conducting training which Dr Khoo, I have found, approved of. Adopting a broadbrush approach, I believe damages might have been assessed as set out below. It must be borne in mind that the onus would have been on the defendant to disentangle her loss in accord with the principles enunciated in Watts v Rake (160) 108 CLR 158.

General Damages$25,000

Interest (2% pa on $15 000)$1,200

Special Damages

Medical$6,000

Statutory Payments$10,000

Future Expenses$2,000

Part Economic Loss$75,000

Interest(on say $50000)$10,000

Past superannuation$6,750

Future Economic Loss$20,000

Future superannuation$1,800

TOTAL$157,750

  1. [165]
    Ultimately, it is however unnecessary to carry out the task of assessment in detail.
  1. [166]
    I give judgment for the defendant. I will hear argument as to costs.

Footnotes

[1] I have expanded the notes into proper English, in accordance with evidence as to the meaning of short hand used or by using my knowledge as to common abbreviated expressions

Close

Editorial Notes

  • Published Case Name:

    Greenall v State of Queensland

  • Shortened Case Name:

    Greenall v State of Queensland

  • MNC:

    [2013] QDC 277

  • Court:

    QDC

  • Judge(s):

    Reid DCJ

  • Date:

    11 Nov 2013

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Findlay v Queensland Folk Federation Inc [2016] QDC 872 citations
1

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