Bettles v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Bettles v State of New South Wales (NSW Police Force) [2022] NSWPIC 324
APPLICANT:	Jonathan Bettles
RESPONDENT:	State of New South Wales (NSW Police Force)
Member:	John Wynyard
DATE OF DECISION:	24 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim by police officer for weekly payments following a psychological injury; whether section 11A of the Workers Compensation Act 1987 defence established; whether employment wholly or predominantly caused the injury; whether the actions by the respondent were reasonable; Held – respondent failed to meet its onus of proof on both counts applicant’s colleagues convicted of serious offences; applicant voluntarily gave statement to professional standards command; reassured that he would be supported on several occasions over the next few months but then accused of failing to prevent colleagues’ criminal behaviour and failing to report they were using two mobile phones; put on interim risk program and transferred to general duties at Mt Druitt; actions unreasonable; Commissioner of Police v Minahan considered; respondent also failed to meet onus as to whether employment wholly or predominantly the cause of the condition; respondent relied on opinion of expert on 9 July 2021 but failed to respond to applicant’s expert opinion of 13 January 2022 which found a different psychological injury following further treatment over the intervening months; Hamad v Q Catering Limited applied; award applicant.
orders made:	1. The respondent will pay the amount of $1,314.50 per week from 28 April 2021 to date and continuing. 2. The respondent will pay the applicant’s costs. I order an uplift of 30% in view of the complexity of the matter, applicable to both parties.
determinations made:	1. The respondent has failed to establish that the applicant’s psychological condition was wholly or predominantly caused by the actions of the respondent. 2. The respondent has failed to establish that its actions were reasonable.

STATEMENT OF REASONS

BACKGROUND

Jonathan Bettles, the applicant brings an action against the State of New South Wales (NSW Police Force) for weekly compensation caused by psychological injury on a deemed date of 11 May 2021.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    was the injury wholly or predominantly caused by the actions taken by the respondent?
(b)    if so, were those actions reasonable?
(c)    has the applicant’s capacity to earn been affected by his injury, and if so, to what extent?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

This matter was heard by video link on 20 May 2022. The applicant was represented by
Mr Misha Hammond of counsel instructed by Mr Sarim Attique from Messrs Turner Freeman Lawyers. The respondent was represented by Mr Paul Stockley of counsel instructed by
Mr Brad Quillan from Messrs Gair Legal.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE
Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    respondent’s Applicaton to Admit Late Documents and attached documents.

Oral evidence

No application was made with regard to oral evidence.

FINDINGS AND REASONS

Mr Bettles was born in 1987 and joined the Police Force in 2013 following a short period of employment as a tennis coach and retail manager. He was attested in August 2013 and was seconded to perform general duties at the Cabramatta Local Area Command until about December 2014 when he was stationed with the Bankstown Police Transport Command. He reached the rank of Senior Constable.
He was an accredited bicycle operator who was regularly used during special operations when performing duty with the plain clothes Proactive Crime Team. Whilst performing his duties he was exposed to the trauma usually associated with first responders. He gave a most particular account of the trauma he experienced in his statement of 11 January 2022. It is not necessary to relate them in detail except to note they included his dealing with fatalities from both murder and accident, assaults, decomposed bodies and suicides.
Mr Bettles recounted a different episode on 2 January 2020 involving the arrest of a transgender female. This led to an altercation with other police and the applicant making a complaint to senior officers. However it resulted in a complaint against the applicant which was subsequently sustained. The applicant said he felt humiliated and disrespected.
The applicant said that on or about 11 March 2020 he saw a female hand a piece of paper to one of his colleagues with whom he was conducting patrols at the time.
On or about 5 August 2020 he learned that those colleagues had been arrested and charged with a number of offences following serious misconduct which centred on sexual activity with a school student.
The following day, 6 August 2020 the applicant contacted the Professional Standards Command in the Internal Witness Support Unit and spoke to Sergeant Gary Morris. He made a statement to Mr Morris and on 7 August 2020 attended the Professional Standards office and provided a statement to Detective Inspector Ned Gligorevic. He spoke to Sergeant Gary Morris after that for two or three hours. He said:[1]
“I voiced my concerns with him regarding myself being the subject of any further investigations. He notified me that I was not the subject of any investigation and because I had provided a statement to Professional Standards, that I would be given extra support throughout the investigation process and even though the process of giving evidence should the matter be heard in Court. I told Sergeant Morris my concern was that I would receive a disciplinary transfer as a result of providing a statement to which he assured me that would not happen. I returned to my station and continued normal duties as I was told I was not under any sort of investigation relating to the matter and would not be in any trouble.”
[1] ARD p 9.
The day following the making of this statement the applicant was called into the office of his Duty Officer, Chief Inspector Robert Danks, who told him “I know its hard to do but you did the right thing” regarding Mr Bettles’ provision of a statement to Professional Standards. He said that Chief Inspector Danks asked about the applicant’s welfare and said something like “Just as long as you told them what you know, you’ll be fine”.
Mr Bettles said that about two weeks later Detective Inspector Ned Gligorevic spoke to the applicant’s partner who had been mentioned by the applicant in his statement. The applicant said that Detective Gligorevic told his partner that “Jonathan isn’t in any trouble at all and that he was not the subject of any investigation”. The applicant said he felt comfortable with being told this as there had been no negative feedback or consequences following his statement to Professional Standards.
On 24 September 2020 the applicant received a text message from an officer attached to the Internal Witness Support Unit to organise a meeting.
On 1 October 2020 the applicant met with the officer who told him that he, the applicant, was not under investigation and would be supported the entire way through the process should he be required to give evidence in Court.
However in about April 2021 the applicant received an email from Inspector Stuart Sabins with a Directive Memorandum to answer questions regarding the investigation. Mr Bettles said:[2]
“I was confused by the memorandum as I was still of the belief that I was not under any investigation but thought it may be used to assist with Professional Standards' investigation. I found the questions to be leading and felt it was designed to implicate myself in the incident.
One of the questions stated "In your statement you indicated that you knew some of the officers had second mobile phones to make contact with females. Why did you not report this misconduct?" and "In your statement you indicated you knew some officers used encrypted apps to communicate with females.
Why did you not report this misconduct?". I found these questions to be attempting to lead me into admitting guilt. I stated to these questions and of those that I did not believe that these incidents relating to my involvement did not constitute misconduct.
I submitted the memorandum as I was still of the belief that I was not under any investigation and I had been told so by numerous officers on multiple occasions. This memorandum made me feel extremely uncomfortable as I was started to believe that
[2] ARD p 10 – 11.
I was being lied to and I was in fact the subject of some form of investigation. I started to feel anxiety around this time and it was starting to affect my sleeping patterns as well as my social relationships.”
He said that on 28 April 2021 he was called into the Commander’s office to speak to with Acting Superintendent Sheridan Waldau and Acting Inspection Alan Simpson. He said:[3]
“I was also told that ‘Well you could have prevented it if you had said something’.
I had not been told this at any stage in the previously nine (9) months and I had continued to perform my duties as normal. Being told this put me into a state of immediate shock as I felt I was being associated with the offence or being directly involved after being assured for almost a year that I was not. After shock, I felt
immediate anger and anxiety for all the lies that had been told to me as well as the support, I was made to believe I was receiving. I questioned Acting Inspector Simpson about why this was happening after being told certain things by Professional Standards and was simply told that "They probably shouldn't have done that". I was given no explanation regarding what was happening or why I was suddenly the subject of an investigation. I immediately felt that I was being unfairly targeted at this time because
[3] ARD p 11.
I was no longer required to given evidence against other officers as a guilty plea had been reached and there was pressure to hold as many people as possible accountable as the incident had received a large amount of media attention.”
Mr Bettles said that “prior to this final incident” that he had been struggling to cope with work and “was starting to feel some levels of anxiety, depression, flashback and sleep disturbance due to a culmination of the mentioned incidents - “I had not sought professional help at this stage as I was hoping it would pass”.
The applicant also referred to a request he made for a transfer to a rural location. He said his motive for doing that was “in the hope that I could have a fresh start and heal from the negative feelings I was experiencing”.
The applicant also was granted two weeks annual leave as he was not able to continue working. He said that in the two weeks that he was on leave he suffered from an extreme anxiety and depression “resulting from a culmination of all the incidents mentioned”. He was only able to manage two to three hours sleep per night, felt overly depressed and did not want to leave his house. During that time he contacted a psychologist registered under the Employee Assistant Program and explained to her his situation.

The applicant said that his return to work was fixed for 12 May 2021 but he was still suffering from extreme anxiety and depression and went to see his general practitioner (GP) on 11 May 2021. He was given a medical certificate that he was unfit for work.
Mr Bettles set out the consequences of his condition which have left him, amongst other things, unable to work in any capacity.

Chief Inspector Simpson

Chief Inspector Alan Simpson gave a statement dated 5 April 2022. He had been attached to Police Transport Command South West Sector since 2012. He said that he had been performing duties as HR Duty Officer from the beginning of 2021 and had been formally promoted to that position in July 2021. He had know the applicant since his transfer to Bankstown and he said that the applicant had performed duties “for the Bankstown satellite and within our Plain Clothes Proactive Crime Team over the years”. He also stated that
[4] Reply p 2 - 3.
Mr Bettles was “an accredited bicycle operator and was regularly used during special operations for this duty type”.[4]
Chief Inspector Simpson recounted the arrest of Mr Bettles’ colleagues in August 2020 which he said was for serious misconduct which centred on sexual activities with a school student. The affair attracted widespread media coverage and as part of the investigation all staff were reminded of their obligation to report misconduct and that any officer wanted to meet with investigators was able to do so. A number of staff reported feeling anxious and unsure about the associated processes and there was a great deal of time spent by the Senior Management Team reassuring staff and reminding them of the support services available.
Chief Inspector Simpson said that the applicant was one of many officers that met with investigators and supplied a signed statement. The two colleagues were charged with serious criminal offences and as the matter was further scrutinised, a small number of officers were further investigated for their failure to have previously reported serious misconduct - S C Bettles was identified as one of these officers, and the outcome of the Departmental Investigation was a sustained finding. There were at least two other officers that had similar findings made against them”.[5]
[5] ALD p 3 [10].
Chief Inspector Simpson related the meeting in April 2021 (presumably 28 April) with
Acting Superintendent Waldau when the applicant was notified that he was to be on an Interim Risk Management Plan which effectively meant being moved to General Duties policing at Mt Druitt Police Station.

Chief Inspector Simpson said there were a number of reasons for the move but the main one was the need for increased supervision until a final decision could be made by the Internal Review Panel.
Chief Inspector Simpson said:
“I would describe SC Bettles’ reaction as ‘shocked’ but he remained calm, even as he went about ‘protesting’ that investigators have told him ‘nothing would happen’”
Chief Inspector Simpson noted that the applicant wanted to “submit/initiate” a transfer to a northern NSW position on the basis that he had recently travelled there and was keen to get away from his Sydney social situation. On 10 May 2021 a decision about transfer was made on 11 May 2021 and the applicant was advised that he was unsuccessful in his application. On the same day the applicant went off work.
Chief Inspector Simpson said that when followed up by the Duty Officer, Inspector Bakos, the applicant said he was going to submit a workers compensation claim and see a psychologist “because he felt he had been ‘lied to’ in the same conversation”[6].
[6] ALD p 4 [14].
A certificate was supplied the same day from Dr Ly.
On 13 May 2021 Chief Inspector Simpson said that the applicant had submitted a P902 form and noted that the applicant had not been at work since. He said: [7]
“During this time SC Bettles has been seen regularly engaging in ‘work’ at his girlfriend’s café nearby the PTC Bankstown office. The officer has been seen wearing the café uniform, serving customers from behind the counter and even delivering food/drinks items to waiting cars in the street.”
[7] ALD p 4 [16].
The P902 form was in evidence. It was dated 13 May 2021, and confirmed that the “incident” concerned conduct by professional standards which misled Mr Bettles.[8]
[8] Reply p 45.

Clinical notes of Dr Ly

The clinical notes dated back to 13 March 2014. They demonstrated that Mr Bettles rarely consulted his GP.
The following entry appeared for 11 May 2021:[9]
[9] ARD p 101.
“History:
Had incident at work last year.
Thinks has some mild post traumatic stress disorder.
Bunch of colleagues questioned about it.
2 blokes were arrested.
But copping the blame now for not preventing it.
Coerced, lied to, struggling to deal with it now.
Losing sleep.
Anxiety
Now has a gag order.”
Dr Ly issued a Workcover certificate that day which gave as the cause of incapacity:[10]
“Lack of workplace support and bullying.”
[10] ARD p 73.
On 13 August 2021 Dr Ly noted that Mr Bettles might benefit from a different psychologist and referred him to Ms Tracey Durrant.[11] The referral said:
“Thank you for seeing Mr Jonathan Bettles, for counselling under MHCP due to work-related psychological trauma. Was involved in an incident with 2 other police officers which tipped him over the edge. Has had other previous work issues that have contributed to his current anxious and depressed state over time.”
[11] ARD pp 137 and 99.

Ms Emily Kwok

Ms Emily Kwok, psychologist, saw the applicant at the request of the respondent. She reported on 26 May 2021. She took a history regarding the events that triggered the investigation report of Mr Bettles’ two colleagues, and said that the main stressors that contributed to the symptoms were the removal of support in April 2021. Ms Kwok said:[12]
“In brief, it appears that there was a significant difference in how the workplace dealt with Mr Bettles during the investigation (where he was reassured and supported) and after the aforementioned case was finalised in April 2021.”
[12] ARD p 58.
Ms Kwok said she had seen him on one occasion at the time of this report. She said:
“Based on my initial assessment, Mr Bettles’ psychological symptoms are primarily related to changes that occurred in the workplace after April 2021….”
Ms Kwok’s clinical notes were in evidence.[13] There were attendances by the applicant on 21 May 2021, 11 June 2021, 24 June 2021, 1 July 2021, 8 July 2021, 21 July 2021, 28 July 2021, and 6 August 2021.
[13] ARD from p 139.
At the first attendance on 21 May 2021.[14] Ms Kwok noted:
“Symptoms: 'reliving it', lack of sleep (did not sleep the first week), anxiety ('doing something that is not my fault but copping the blame for it at work').”
[14] ARD p 146.
Ms Kwok recorded a continuing distrust by Mr Bettles of his workplace. However, on 8 July 2021 Ms Kwok noted that Mr Bettles “will work on factual statement for insurer”. On 21 July 2021 the entry recorded a discussion about the “statement for insurance”.
On 28 July 2021 Ms Kwok noted:
“Continued discussion on his statement as agreed with Jonathan and the insurer that we will spend some time of our session on this.
Jonathan mentioned memories of other situations that were triggered when he was completing his statement for the insurer; refocused Jonathan on the index incident.”
On 6 August 2021 she noted that Mr Bettles had been working on his statement. She quoted Mr Bettles as saying:
“I don’t trust management…
I have given so much to the organisation and get this in return.”

Ms Tracy Durrant

No report was lodged from Ms Durrant but the respondent lodged her notes with its late documents.[15]
[15] From ALD 30.
Ms Durrant was first consulted by the applicant on 17 August 2021 and she took a consistent history to that given to Ms Kwok and Dr Ly, i.e., that he had been notified that he was under investigation following the involvement of his colleagues in an incident March 2020.
Ms Durrant recorded that Mr Bettles was suffering symptoms of anxiety and depression, complaining of breathlessness, palpitations and sweating, and said he had 'never felt like this before'. Ms Durrant noted that he had moved home from living with his partner Lina, and that he had in fact called police to speak to Lina so that she would leave him alone.

On 25 August 2021 Ms Durrant recorded that Mr Bettles was feeling confused about why ‘everything’ was affecting him so much. He was spending time “helping Lina out in her café”.
On 9 September 2021 the entry read, relevantly:[16]
“He said he wanted to talk today about the 'traumatic events' he had been
exposed to during his time in the police force. He said there were many traumas but three stood out…”
[16] ALD p 35.
Ms Durrant noted that Mr Bettles was having difficulty managing the physiological sensations of anxiety and hyper arousal.
On 16 December 2021 Ms Durrant reported that Mr Bettles felt “frustrated about his situation”. She noted that he was ‘helping Lina out in her café’, which helped him get some respite. Ms Durrant noted that he was still suffering anxiety symptoms of ‘palpitations, sweating palms and an intermittent sense of hopelessness’.
The final entry was on 1 February 2022. Ms Durrant noted that Mr Bettles believed he was bullied and had seen a solicitor.

Dr Anderson

Dr Peter Anderson, consultant psychiatrist, was retained to give a medico-legal opinion. He reported on 13 January 2022.[17]
[17] ARD p 45.
In discussing the history of Mr Bettle’s condition, Dr Anderson said:[18]
“[The applicant] found it difficult to pinpoint the onset of present psychological difficulties. He said it was very difficult to distinguish between the effects of a stressful day at work and the beginnings of a long term injury. He had difficulty sleeping for about two years. He had difficulties with anxiety for a similar period and he had nightmares and flashbacks for a similar period.”
[18] ARD p 46.
Dr Anderson noted that Mr Bettles had experienced psychological reactions following traumatic events in the course of his police career, but they had been short lived at the time. Subsequently they had become more continuous. Dr Anderson recorded that Mr Bettles had seen Senior Sergeant Seeson, who said he did not think Mr Bettles was coping, about a month before Mr Bettles ceased work.
Dr Anderson noted that Mr Bettles took two weeks annual leave following the Professional Standards Investigation and that during that time his symptoms aggravated so that he attended Dr Ly. Mr Bettles felt that the “final incident in the workplace” pushed him over the edge.
Dr Anderson reported the symptoms that Mr Bettles complained of regarding the trauma to which he had been exposed in the course of his policing duties. These were triggered by day-to-day events and were visual, smells, or news items which would give him an intrusive imagery of workplace trauma. He gave the example of the colour yellow being disturbing because early in his Police career he attended a fatal motor accident which involved a yellow car.
Dr Anderson said:[19]
“…He thinks a lot now about the workplace traumas involving threat to life, including being assaulted but specifically including fearing being shot. He thinks a lot about fatality and disfigurement. He specifically does not think a lot about the workplace incident involving the professional standards matter.”
[19] ARD p 47.
Dr Anderson took a history that Mr Bettles was unhappy with his treatment by Emily Kwok. He said:[20]
“…The psychologist wanted him to talk about the matter which precipitated his going off work when he wanted to talk about traumatic incidents throughout his police career which led to symptomatology and continuing symptomatology. The psychologist wanted him to refocuss and dismiss those matters. For that reason he changed to another psychologist.
He was referred to Tracy Durrant and he has told me that he talks about the traumatic events occurring throughout his police career with Tracy Durrant. He has had a few sessions only and there were some interruptions occasioned by the COVID pandemic.”
[20] ARD p 47- 48.
Dr Anderson in discussing his findings on examination said:[21]
“[The applicant] gave a history of typical posttraumatic stress disorder symptomatology. This symptomatology included adverse reactions to traumatic events encountered in the workplace over time and leading to continuous symptoms of psychiatric injury.
Specifically he recounted nightmares about traumatic workplace incidents and flashbacks to traumatic workplace incidents. He experienced intrusive memory and imagery of such traumas, triggered by seemingly minor daily triggers such as sights, smells and television and media reports.”
[21] ARD p 47 - 48.
Dr Anderson recorded that Mr Bettles (who had a history of boxing) compared himself to a boxer who was “out on his feet” but managing until he received “the knockout blow,” which he said was the reaction of his superiors to the professional standards matter. Dr Anderson said:[22]
“His particular “knockout blow” no longer concerns him particularly, it was important at the time.”
[22] ARD p 49.
Dr Anderson reviewed the documentation, including Mr Bettles’ statement of 11 January 2022. In considering the note made by Ms Kwok on 28 July 2021 as to refocussing attention on the “index incident”, he said:
“Comment. This indicates that, as your client told me, the first psychologist did not want to hear about the workplace traumas which are covered in your client’s statement of 11 January 2022.”
Dr Anderson noted the opinion dated 9 July 2021 from Dr Chivaurah, the medico-legal expert retained by the respondent. Dr Anderson commented that Dr Chivaurah, like Ms Kwok, focussed on the professional standards matter, and that no enquiry had been made into the traumatic events witnessed during Mr Bettles’ police career.
Dr Anderson noted that there was no prior attendance on Dr Ly until April/May 2021.
Dr Andrews said:
“Comment. The general practice record including the referral to the second psychologist is consistent with my interview and with your client’s statement.”
Dr Anderson summarised Mr Bettles’ case by stating:
“Your client developed transient symptoms of acute reactions to traumatic incidents which over time became more continuous. The history of continuous psychological symptomatology would appear to go back for two years. There was a final administrative type incident which tipped him over the edge and led to unfitness for work. The principal component of this was that he was working despite his symptomatic load, noted by one senior officer to be unwell, and then when he perceived there was no support from the employing organisation, became unfit.”
Dr Anderson’s diagnosis was:
“In my view, the applicable diagnosis under the DSM-5 system of classification is Posttraumatic Stress Disorder. This is now chronic. The diagnosis is made because he has attended life-threatening events in the course of his work as well as attending fatalities. He has been exposed to assault and threat to life and continuing risk. He has reacted with re-experiencing symptomatology in the form of nightmare and intrusive imagery and memory, often triggered by encountering sights, smells and media items. He has a host of hyperarousal symptoms particularly anxiety, hypervigilance, irritability, there have been panic attacks. His concentration is subjectively poor. He is avoidant of likely reminders or triggers where possible and he is avoidant of thoughts and feelings associated with his traumas. Affect is depressive with congruent loss of energy, motivation and enjoyment.”
Dr Anderson said that the cause of the condition was “accumulated trauma in the course of his employment…”.
As to Mr Bettles’ earning capacity, Dr Anderson said it was “more than likely” that Mr Bettles would remain unfit for police work, subject to any development regarding future treatment. He noted that Mr Bettles had tertiary qualifications in Health Sciences, and it remained to be seen whether he could build on that using additional rehabilitation and treatment. A decision as to future fitness should be deferred, but in the meantime he was currently “unfit for employment”.[23]
[23] ARD p 55.
The following question and answer were contained in Dr Anderson’s report:[24]
“10. We note that our client has been exposed to a number of incidents whilst performing his duties in the New South Wales Police Force. The insurer is of the view that his psychological injury as a result of his incidents along with the administration and managerial issues faced by our client, are the same injury. Could you please elaborate as to whether or not these injuries are separate injuries are separate injuries and are reasons for same. [sic].
When he went off duty it was perceived that he had an adjustment disorder to the administration/managerial issues. Any such adjustment disorder has since improved. He is no longer preoccupied by administrative managerial issues.
My view is that he suffered Posttraumatic Stress Disorder at the time of going off duty. That is a separate injury. It is a continuing injury.”
[24] ARD p 55.

Dr Chivaurah

Dr Bernard Chivaurah, consultant psychiatrist, was retained as the respondent’s medico-legal expert. On 9 July 2021 he reported following a telehealth assessment on 1 July 2021. He noted the available documentation of an incident reporting form (presumably the P 902 referred to by Chief Inspector Simpson), the report from “Dr” Emily Kwok dated 26 May 2021, and a certificate of capacity.
Dr Chivaurah took a consistent history of the professional standards investigation, noting the early support Mr Bettles was given by the police involved, and his subsequent sense of betrayal when he found he was himself being investigated. Dr Chivaurah also took a history of the occasion in 2020 when a Sergeant Mr Bettles had reported to his superiors put in a sustained complaint against him. This, Mr Bettles said, did not affect him and he was still able to work.
Dr Chivaurah noted no history of chronic medical conditions, including mental illness. He reported that Mr Bettles had been seeing Ms Kwok for four weeks, having had three sessions. His sleep had gradually improved back to normal hours.
Dr Chivaurah recorded:[25]
“He joined the police force eight years ago ‘I enjoyed it, and I was good at it. I saw myself doing it for a long time’.”
[25] ARD p 63.
Dr Chivaurah diagnosed an adjustment disorder with mixed anxiety and depressed mood. He noted that Mr Bettles consulted a doctor for the first time after he realised he was being investigated. He observed that although Mr Bettles was then under a supervision order he had travelled to Northern NSW to investigate places he could transfer to while still working for the NSW police.
Dr Chivaurah considered that Mr Bettles’ condition had arisen out of or in the course of his employment by virtue of the professional standards investigation, and his sense that he could not complain against the Professional Standards Command, as it would only then investigate itself. Mr Bettles had been ruminating on his situation in how he could have acted differently and how he had been lied to.
When asked to describe Mr Bettles’ symptoms, Dr Chivaurah said:[26]
“As discussed above, since April 2021, Mr Bettles has been experiencing anxiety triggered by thoughts of going back to work, anger and resentment associated with ruminations about how he could have acted differently and how he was ‘lied to’ by professional standards. This is associated with poor sleep, reduced enjoyment of the company of his partner and children and a decline in occupational function.
Over the last four weeks, Mr Bettles has had three sessions of psychotherapy. These symptoms are still present and severe enough to affect his social relations except for his sleep which has improved back to normal.”
[26] ARD p 66.
Dr Chivaurah said:[27]
“…in April 2021 he was placed on a supervision plan which made him feel used ‘to get what they want’, lose faith in the system and he felt he could not ask the professional standards to investigate his complaint against them.
…
There were no other work or non-work related factors or incidents identified
that could have contributed to Mr Bettle’s current condition.”
[27] ARD p 67.
In discussing Mr Bettles’ capacity to return to work, Dr Chivaurah found him unfit to return to his pre-injury role. Dr Chivaurah considered:[28]
“The main barriers to returning to work are the ongoing ruminations, cognitions of
‘I was lied to’ by professional standards, anxiety, anger, repeatedly ‘replaying the whole situation in my head’ asking himself ‘how could I have handled it better, how could
[28] ARD p 68.
I have let that slide, is it true what they are saying about me. It consumed me’.”
In a further report of 11 August 2021, Dr Chivaurah was asked to comment on whether
Mr Bettles’ condition was wholly or predominantly caused by the actions of the respondent regarding discipline and/or performance appraisal. Dr Chivaurah replied in the affirmative.

The P902 form

81. This was entitled “incident Reporting Form” and was dated 13 May 2021.[29] The injury was identified as a psychological injury, and its nature described as “Psychological: Bullying & Harassment - by a supervisor, not commander/manager”. The incident was more fully described later in the form:

“For past 12 months a major incident occurred at my station, involving 2 officers being arrested and charged, An investigation was taken by professional standards command, I was told by professional standards that I was not part of the investigation for months after the incident occurred. On the 28th April I was advised that I was being sent to another station as part of the risk management. I was then alerted to the fact that I was being investigated after months of being assured my multiple people within the Professional standards command and management at my command I was not being investigated.”
[29] Reply p 19.

SUBMISSIONS

Mr Hammond submitted that the first issue was as to the characterisation of the psychological injury, which he said was a post-traumatic stress disorder. Mr Hammond relied on the opinion of Dr Anderson and contemporaneous records. He submitted that the onus being on the respondent regarding the s 11A defence, the respondent could not satisfy its allegation that the injury was either wholly or predominantly caused by the respondent’s actions regarding performance appraisal and discipline.
Mr Hammond referred to the statement of Chief Inspector Simpson, which referred to signed statements and an interim management program, none of which had been lodged. The failure to provide that documentation meant that there was no detail to the allegation made regarding performance appraisal and discipline.
Mr Hammond relied on the applicant’s statement, submitting that the traumatic incidents that he mentioned were certainly likely to have the propensity to lead to a psychological injury. That propensity was illustrated within the notes made by Dr Ly at their first consultation between them referring to the condition of post-traumatic stress disorder. He said it was immaterial whether Dr Ly mentioned it or whether the applicant raised it as the mere fact that it appeared in the entry demonstrated that the exposure to trauma was a matter that was of concern at that first consultation on 11 May 2021.
Mr Hammond referred to an entry in Ms Kwok’s notes of 28 July 2021 which he said gave an indication as to why the applicant had left Ms Kwok and gone to Ms Durrant. Mr Hammond suggested that Mr Bettles changed his psychologist because he was unhappy with Ms Kwok.
Mr Hammond referred to Dr Ly’s referral to Ms Durrant, suggesting the reference to “other previous work issues” by Dr Ly confirmed the applicant’s dissatisfaction with Ms Kwok.
Mr Hammond submitted that Dr Chivaurah’s report did not take the full relevant history, as it was written earlier on 9 July 2021. The documentation he was supplied with was limited, being the P902 Form, the report from Ms Kwok and one certificate of incapacity from Dr Ly. He submitted that Dr Chivaurah did not have a complete history and that a qualified psychiatrist needed to take a detailed history when interviewing a person to discount the question of post- traumatic stress disorder, which Dr Chivaurah had failed to do.
Mr Hammond submitted that Dr Chivaurah was not consulted thereafter. He could have been supplied with the opinion of Dr Anderson and the applicant’s statement, both of which post dated his report, and the contents of which may have changed his opinion.
Dr Anderson’s report of 13 January 2022 had a much more complete history. Mr Hammond submitted that Dr Chivaurah did not have the history of Mr Bettles’ career as a first responder and the traumatic events that he witnessed.
So far as capacity was concerned, Mr Hammond submitted that the evidence showed that
Mr Bettles was unfit to attend to policing work. Mr Hammond submitted that Dr Chivaurah’s opinion that the applicant would not be likely to be able to return to work between a few weeks and a couple of months of his report was optimistic and not borne out by the facts.
With regard to the s 11A defence, Mr Hammond submitted that the respondent bore the onus and that there were two problems with the defence. Firstly, it had not been shown that the injury had been wholly or predominantly caused by the actions of the respondent. There was a dearth of evidence which was required to satisfy that that onus.
The failure by Dr Chivaurah to enquire about and then establish the presence of a
post -traumatic stress disorder as a result of Mr Bettles’ policing activities on the frontline meant that his opinion that the actions of the respondent were wholly or predominantly responsible for the psychiatric injury could not be sustained.
If that submission did not succeed then Mr Hammond submitted that the respondent could not succeed in any event on the question of whether their actions were reasonable.
The evidence was that the applicant saw the service of the piece of paper on his colleagues in March 2020 and learnt in August 2020 through the media, of what that service presaged. The reasons why the respondent behaved as it did were not sufficiently detailed to satisfy its onus of proof. The Directive Memorandum was not in evidence and the applicant’s response was not in evidence and accordingly the applicant’s version should be accepted. Mr Bettles was investigated because he failed to report that his colleagues had two phones and
Mr Hammond submitted that there was nothing sinister in that, as it was not unreasonable for a second phone to be available for social reasons.
Further, Mr Hammond submitted that although Chief Inspector Simpson gave a statement, it did not supply the information that was called for, as the respondent bore the onus. Although Chief Inspector Simpson mentioned the investigation, the documents involved and the statements made in the investigation and indeed the findings of the investigation were not before the Commission. Only the “sustained” result was referred to. There were no Professional Standard Guidelines before the Commission and there was no explanation of the policy requirements of the witness support unit in their dealings with people such as the applicant. All of this added up to a dearth of evidence as to what Mr Bettles was being investigated for, and Chief Inspector Simpson’s statement did not help to establish whether or not the actions by the Police were reasonable.
So far as the work at the café was concerned Mr Hammond said that there was another reference somewhere in the evidence that Mr Bettles said he had been working at the café. However the manner in which it was mentioned by Chief Inspector Simpson constituted a smear on the applicant’s character because it was designed to show that the applicant was working whilst on sick leave. Mr Hammond submitted I would not take that inference.
The result Mr Hammond submitted, was that the applicant had not been told what it was the respondent was relying on therefore the Commission was unable to establish whether its actions had been reasonable or not.

Mr Stockley

Mr Stockley submitted that the nature of policing meant that the Police Commissioner had to place officers in harm’s way in such events as were described in the applicant’s statement.

A policeman was an officer of the Crown and was only an employee by virtue of the deeming provisions in the Workers Compensation Act. He said police officers are attested to perform the objectives of the Police Act and other similar legislation. As such their standard of probity was much higher than those of an ordinary employee. As at 11 March 2020, when he observed his colleagues being served with the piece of paper, Mr Bettles carried a sworn obligation to maintain the standards of integrity. He was obliged to not only conduct himself lawfully but additionally with integrity and from that latter obligation flowed the subsequent investigation of his failure to report the fact that the officers involved in the criminal activity were carrying two phones.
Mr Stockley noted that the criminal events occurred in March 2020 and the arrest of the applicant’s colleagues occurred in August 2020.
The applicant stated that it was in April 2021 that he received the email dealing with the directive to answer questions as to the use of secondary phones. Mr Stockley submitted that they were appropriate and relevant questions which led to the applicant being criticised in the meeting of 28 April 2021.
The decision by the respondent to increase supervision and move the applicant to Mt Druitt Police Station Mr Stockley said was not a suspension and it was not a demotion, but it was for the purpose of subjecting the applicant to a higher degree of surveillance and it was a reasonable action to be taken under the circumstances.
The evidence was that this was the wholly predominant cause of the psychiatric condition.
The application for transfer to a northern command was relevant Mr Stockley submitted because it was on 10 May 2021 that he was notified that his application had been unsuccessful and it was the following day, 11 May 2021 that the applicant took sick leave from Mt Druitt Police Station and that was the first day of incapacity.
Mr Stockley submitted that the clinical note relating to the consultation on 11 May 2021 between Dr Ly and the applicant presented a problem for Mr Hammond’s case. The entry referred to an incident at work, to “blokes” being arrested and a “bunch of colleagues” being questioned. A fair reading, I understood Mr Stockley to submit, would be that the cause of the illness that made the applicant present to Dr Ly was the investigation. There is a close temporal association between the applicant being denied the transfer he sought and his presentation to Dr Ly.
Mr Stockley submitted that I would be satisfied that “bullying” was the cause of the applicant’s condition. The certificate issued by Dr Ly gave no illusions as to the real cause in his certificate of 11 May 2021 as it nominated “lack of workplace support and bullying”.
Mr Stockley submitted that it was clear that the bullying had been the cause of the psychiatric condition, as it was further confirmed by the P902 form of 13 May 2021.
Mr Stockley submitted that the case was straightforward as represented by the contents of the P902 form and Dr Ly’s notes. The applicant first went off work because the investigation process and the subsequent transfer of Mr Bettles under supervision to Mt Druitt had caused him to develop a psychological injury.
Mr Stockley submitted that faced with that evidence the applicant then moved to his “second string” which was that the injury had not been wholly or partially caused by the actions of the employer because of the pre-existing post-traumatic stress disorder.
The first problem Mr Stockley submitted was post-traumatic stress had not been mentioned in the contemporaneous complaints. Mr Hammond had been critical of Dr Chivaurah’s reports because he did not ask any questions as to whether the applicant was suffering from the post-traumatic stress disorder. Mr Stockley submitted that this was hardly surprising given that there was no reason for the doctor to do so. The applicant did not display or complain of any symptoms of post-traumatic stress disorder and if he had, no doubt
Dr Chivaurah would have noted them and investigated them.
The fact that Dr Chivaurah did not record any such presentation was a “fatal defect” in the applicant’s case Mr Stockley said.
Dr Anderson did not explain why the symptoms of post-traumatic stress disorder were not present with either Dr Ly or Dr Kwok when he supported the applicant’s claim on 13 January 2022.
Mr Stockley noted that Mr Bettles had already seen Ms Durrant on two occasions prior to that consultation without that history. He submitted that the complaints to Ms Durrant on 9 September 2021 go unexplained in circumstances where he had “nailed his colours to the mast with bullying”. Mr Stockley submitted that the accounts prior to September 2021 were consistent with the actions taken in the investigations being wholly or predominantly the cause of Mr Bettles’ psychiatric injury.
Mr Stockley submitted that the report of Dr Chivaurah about capacity was early on in the proceedings and that it remained to be seen what other treatment affected Mr Bettles’ capacity to earn. He submitted that Dr Anderson’s view was a subjective qualification.
He submitted that Dr Anderson’s view was the applicant was unfit for policing work. He noted that s 32A had no place in this case, it being governed by the transitional savings in favour of police officers. The applicant was accordingly said by the experts to have a situational incapacity regarding his position in the Police, but Mr Stockley submitted that on the open labour market there was a wide range of work that he could do, and indeed there was a glimpse of such capacity in the hearsay evidence of Chief Inspector Simpson.

Mr Hammond in response

Mr Hammond said that Dr Anderson’s opinion as at 13 January 2022 was that the applicant was totally incapacitated. The applicant deposed to significant problems regarding his mental health and therefore his ability to do any work.
Dr Chivaurah’s report had to be seen in context at the time that he was evaluating the applicant and his optimistic prognosis had not eventuated.
He submitted that in relation to the P902 form that one would not expect any more to be entered than what was the minimal amount for police business.

DISCUSSION

Section 11A

Section 11A of the 1987 Act provides relevantly:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
It is common ground that Mr Bettles was not suffering from any diagnosable psychological condition until he realised that he had been misled by his superiors regarding the actions taken by Professional Standards Command on 28 April 2021.
I do not see that realisation as being a matter of perception. Mr Bettles’ statement was detailed and comprehensive, and in this regard he was supported by the evidence of
Chief Inspector Simpson, who acknowledged that Mr Bettles’ was in shock when he was told he was being investigated, with the concomitant transfer to Mt Druitt for supervision.
Chief Inspector Simpson also confirmed Mr Bettles’ sense of betrayal, noting that Mr Bettles protested that investigators had told him that nothing would happen.
11 May 2021 was the day that Mr Bettles learnt his application for a transfer was declined, and it would appear that this was the event that made him seek medical help with Dr Ly on the same day. Mr Bettles had been attending Dr Ly’s practice since March 2014 and thus had Dr Ly as his family doctor throughout the years when he was an active member of the Police Force. He had been exposed to the horrors he described in his statement during that time, and the respondent has relied on the absence of contemporaneous complaint to assert that it was the action taken in respect of Mr Bettles’ performance appraisal, discipline and/or dismissal that was wholly or predominantly the cause of Mr Bettle’s injury.[30]
[30] Section 287A Notice, ARD p 35 at p 38.
I do not necessarily agree that there was any suggestion that Mr Bettles’ employment was under threat. Chief Inspector Simpson’s evidence did not state that dismissal was being contemplated as one of the disciplinary actions. He stated that the applicant was put on a risk management plan and transferred to general duties at Mt Druitt pending the outcome of the Internal Review.
Although Chief Inspector Simpson described the failure by the applicant (and other officers) to have previously reported “serious misconduct”, I accept the applicant’s evidence that his alleged offences were failing to report that his colleagues were using second mobile phones to contact females. What might have been relevant was the action taken in refusing
Mr Bettles’ application for a transfer, as it was this action that finally drove him to seek medical help.
Be that as it may, it will accordingly be necessary to consider whether those actions were reasonable. The applicant also claims that his psychological injury was not wholly or predominantly caused by those actions in any event.
When an employer seeks to rely on s 11A, it bears the onus of establishing the matters therein identified.[31]
[31] Northern NSW Local Health network v Heggie [2013] NSWCA 255 @ [54].

Wholly or predominantly

In Hamad v Q Catering Ltd[32] DP Snell said at [88]:
“88. The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
[32] [2017] NSWWCCPD 6.
The competing factors in this case can be summarised by the different diagnoses made by Dr Chivaurah and Dr Anderson. The respondent relied on Dr Chivaurah to supply the requisite medical evidence, and it submitted that Dr Anderson’s opinion could not be accepted, as he had failed to explain why the symptoms of post-traumatic stress disorder were not present when the applicant first sought medical help. As will be seen, I do not regard that criticism as overcoming the failure by the respondent to obtain medical evidence that considered either the temporal gap between Dr Chivaurah’s opinion of 9 July 2021 and that of Dr Anderson of 13 January 2022, or Dr Anderson’s view that the applicant was then suffering a different injury to that diagnosed by Dr Chivaurah.
Dr Chivaurah assessed the applicant on 1 July 2021 and Ms Kwok also saw Mr Bettles on 1 July 2021 as part of his treatment. I note that Ms Kwok’s report of 26 May 2021 was addressed to the insurer, and I assume Ms Kwok was retained by the respondent, as Dr Ly’s practice has no record of referring the applicant to her. Neither Dr Chivaurah nor Ms Kwok took any history regarding Mr Bettles’ experiences whilst on active duty, nor of any psychological reaction to them. It follows that, as at 1 July 2021, the predominant cause of the applicant’s distress was the conduct of Professional Standards Command.
Mr Stockley suggested that the post-traumatic stress disorder was claimed as a pre-existing condition. I did not understand that to be the case presented by Mr Bettles. The applicant’s case was not without its difficulties, but the contemporaneous evidence supported the development of a psychological condition that was not wholly caused by the conduct of the respondent, but which emerged as a result of the applicant having to relive his experiences on active duty in the preparation of his defence to the investigation.
The following chronology is relevant in this regard:
“•     8 July 2021.    Ms Kwok recorded that he was starting to ‘work on factual statement for the insurer.’
(a)    21 July 2021. Ms Kwok ‘discussed the statement for insurance.’ She noted that there was a ‘template provided to Jonathon,’ and that she could not coach him.
(b)    28 July 2021. Ms Kwok noted there was ‘continued discussion’ about the applicant’s statement. This apparently had been discussed with the insurer prior to the session and been approved, as I read the entry which said ‘as agreed with Jonathon and the insurer ..we will spend some time… on this.’ Ms Kwok noted that “when he was completing his statement” memories of ‘“other situations’ were triggered.” Ms Kwok told him to refocus and dismiss those matters.
(c)    6 August 2021. Final session with Ms Kwok. Mr Bettles was noted to be working on his statement and could possibly submit it to the insurer this weekend.
(d)    13 August 2021. Dr Ly referred Mr Bettles to Tracy Durrant. Mr Bettles told
Dr Anderson that he changed to Ms Durrant because Ms Kwok only wished to discuss the precipitating matter that got him off work, and not the traumatic incidents throughout his career that he wished to discuss.
(e)    17 August 2021. Initial consultation with Ms Durrant obtaining the history of the professional standards investigation and current symptoms, including breathlessness, palpitations and sweating.
(f)    25 August 2021. Mr Bettles symptoms described in similar terms. Mr Bettles was then ‘helping Lina out in her café.’
(g)    9 September 2021. Ms Durrant noted that the applicant wished to discuss the traumatic events he had been exposed to during his time with the police force. She recorded the three traumas that Mr Bettles said stood out. Ms Durrant noted symptoms of anxiety and hyper-arousal.”
Ms Durrant had two further sessions with Mr Bettles on 16 December 2021 and 1 February 2022. She noted continuing symptoms of rumination, intrusive thoughts, hypersensitivity and fear of feeling anxious.
Thus, when he came to be assessed by Dr Anderson on 13 January 2022, there had been further developments in Mr Bettles’ condition of which Dr Chivaurah was unaware when he assessed the applicant on 1 July 2021. As indicated, this is illustrated by the conflicting diagnoses. Dr Chivaurah diagnosed an adjustment disorder with mixed anxiety and depressed mood. Dr Anderson diagnosed a chronic post-traumatic stress disorder.
Dr Anderson’s report stated that Mr Bettles had been suffering difficulty with sleeping for “about two years” and had been suffering symptoms of anxiety with nightmares and flashbacks for a similar period. I assume that Dr Anderson was referring to the involvement with Professional Standards Command in “August 2020”, which was the first 2020 date he mentioned in the history he took.
Accordingly, the description of “about two years” is somewhat approximate.
Dr Anderson explained that the applicant found it difficult to pinpoint the onset of his present symptoms, but his sleeping difficulties had been occurring for about two years. This contrasts with Dr Chivaurah’s report that the applicant’s sleeping difficulties had resolved when he assessed him on 1 July 2021.
I have no difficulty in accepting the history recorded by Dr Anderson that Mr Bettles experienced psychological reactions following the traumatic events, but that they were short lived. Mr Bettles was no different from any other first responder that has to face the most horrific experiences that are part of his/her job. Common sense informs that such transient reactions would happen often, but would not usually cause any psychological injury, no doubt because the satisfaction of the job would balance the trauma of such experiences, which were part and parcel of their duties.
Dr Anderson’s opinion was that the transient reactions had become continuous about two years before at the time of the professional standards investigation, which had “tipped him over the edge”. Dr Anderson relied on a history that “one senior officer” noted the applicant was unwell at the time. That officer was identified as the HR manager,
Senior Sergeant Alan Seeson, who was not mentioned in the applicant’s statement.
I have some reservations about Dr Anderson’s reliance on that history, as the evidence from the applicant was that he had been counselled by Chief Inspector Robert Danks after
Mr Bettles had made his statement to Detective Inspector Gligorevic a day or so following the arrest of his colleagues, and Chief Inspector Danks had enquired about his welfare. It was not suggested by Mr Bettles in his statement that the counselling he received was with regard to any issue but the investigation. Mr Bettles also stated that he spoke to
Sergeant Morris for two or three hours immediately after making his statement, but again the conversation concerned the investigation process.
Dr Anderson was however aware that Mr Bettles had transferred from treatment with
Ms Kwok to Ms Durrant because Ms Kwok did not want to hear about the workplace traumas, and that he had subsequently discussed those traumatic events with Ms Durrant. That history has been supported by the contemporaneous notes and may be accepted.
I was not assisted with this important distinction by Mr Bettle’s statement. He stated that prior to the meeting of 28 April 2021 he was “struggling to cope with work and experiencing symptoms” due to the culmination of the “mentioned incidents”, which I take to be a referral to the trauma whilst on active duty he had earlier described. He made no attempt to explain why he had not mentioned these matters to either Dr Chivaurah or Ms Kwok in the early stages of his treatment. Indeed he did not refer to Ms Kwok or Ms Durrant at all. This lacuna in his statement might have been decisive in his case, when combined with the unsatisfactory elements in Dr Anderson’s report, except that the contemporaneous evidence does raise the factual basis for Dr Anderson’s opinion.
That evidence confirms that Mr Bettles did complain to Ms Kwok on 28 July 2021 that it was the preparation of his statement that had triggered his memories of other situations. In context that was a reference to Mr Bettles’ exposure to the traumatic experiences he described, as such was confirmed when Ms Durrant set out the memories that he detailed on 9 September 2021. The first mention of the applicant’s preparation of his statement was to Ms Kwok on 8 July 2021, and it featured in every consultation thereafter.
Mr Stockley’s submission that the complaints to Ms Durrant on 9 September 2021 were unexplained I accordingly reject. It is entirely consistent with Dr Anderson’s diagnosis that the requirement for Mr Bettles to prepare a statement for the insurer had retriggered the memories of the past exposure to trauma, and in the depths of the depression that the investigation had caused a further injury of post-traumatic stress disorder, as he was now not able to process those memories. I note that the statement to the insurer that was of such concern to Mr Bettles has not been the subject of any evidence, even to the extent of whether it was finally completed or not.
In the circumstances I find Dr Anderson’s opinion to have been made in a fair climate, notwithstanding the matters to which I have referred.[33] Dr Anderson was correct in his diagnosis that the applicant had attended life-threatening events, fatalities, assault and threat to life situations. Dr Anderson’s finding that Mr Bettles has reacted with “re-experiencing symptomatology” of nightmares and intrusive imagery and memory, often triggered by sights, smells and media items is more consistent with a psychological disorder relating to the trauma, rather than with the realisation that he had been misled. I accept Dr Anderson’s opinion that Mr Bettles suffers “a host of hyperarousal symptoms, particularly anxiety, hypervigilance, irritability” and panic attacks. I accept that the applicant is avoidant of possible triggers.
[33] See ACW v ACX [2022] NSWPICPD 19 from [51] per DP Snell.

I also accept that the adjustment disorder diagnosed by Dr Chivaurah has improved.
Dr Anderson was asked as to his view of the respondent’s denial based on that opinion. Although Dr Anderson used the term “it was perceived” that the professional standards issues had caused an adjustment disorder, which had since improved, I accept that there was no other basis for Dr Chivaurah’s diagnosis at the time. However, I accept that
Mr Bettles told Dr Anderson on 13 January 2020 that the issue no longer concerned him particularly, and I accept Dr Anderson’s advice that he was no longer pre-occupied with those issues. Indeed, that opinion has not been challenged, as no further medical evidence was lodged after Dr Chivaurah’s report of 9 July 2021. There is force in Mr Hammond’s submission that had Dr Chivaurah been asked to report after being supplied with
Dr Anderson’s 13 January 2022 report and Mr Bettles’ statement of 11 January 2022, he may well have agreed with Dr Anderson’s opinion. In any event, the contents of those documents presented fresh medical issues for consideration and accordingly the respondent has not satisfied the need to provide medical evidence as explained by DP Snell in Hamad.
I accept that the post-traumatic stress disorder occurred after Mr Bettles had gone off duty and that it constitutes a separate and continuing injury. In that regard, as indicated, I have some reservations as to Dr Anderson’s view that the post-traumatic stress disorder occurred as Mr Bettles was going off duty. For the reasons given above, I think the disorder occurred as he was preparing his statement.
The question that accordingly arises is whether the respondent has satisfied its onus to prove that the applicant’s condition was wholly or predominantly caused by its actions.
I accept the opinions of both experts. On 1 July 2021 Mr Bettles was suffering an adjustment disorder with mixed anxiety and depressed mood, and that it was wholly or predominantly caused by the actions of the respondent regarding performance management and discipline. As indicated, I do not think that the respondent’s actions involved dismissal.
However, by 13 January 2022, that injury had to a large extent resolved, or at least improved markedly. I accept Dr Anderson’s opinion that the cause of Mr Bettles’ current condition is the chronic post-traumatic stress disorder which is a separate injury. The onus is on the respondent to establish that nonetheless the post-traumatic stress disorder, being caused in part by the adjustment disorder, was wholly or predominantly caused by the respondent’s actions. That proposition has not been addressed, and is far from evident. Accordingly I do not accept that the respondent has met its onus.
If I am incorrect in this analysis a consideration of the reasonableness of the actions by the respondent is also called for.

Reasonable actions

I have no hesitation in accepting Mr Stockley’s submission that a police officer is an officer of the Crown, and his/her standard of probity is much higher than that of an ordinary employee. I also accept that a police officer is required not only to conduct himself lawfully, but also to act with integrity, and that the applicant’s failure to report the fact that his colleagues were carrying two phones was a legitimate and reasonable basis for the subsequent investigation carried out by Professional Standards Command.
Chief Inspector Simpson gave a clear and concise statement, which may be paraphrased to note that the misconduct by Mr Bettles’ colleagues was of such a nature as to attract wide spread media attention, and an investigation was launched by Professional Standards Command. Senior management were concerned to remind staff of their obligations, and its actions caused some anxiety about the processes that would be followed. A great deal of time was spent by senior management reassuring staff.
As indicated, Chief Inspector Simpson recorded the applicant’s shock and protest when he was spoken to on 28 April 2021. It is in that respect that the question of the reasonableness of the respondent’s actions needs further analysis.
Mr Bettles gave detailed and comprehensive evidence as to his actions when he learnt that his colleagues had been arrested and charged on 5 August 2020. The following day he contacted Sergeant Gary Morris of the Internal Witness Support Unit of Professional Standards Command. The next day, 7 August 2020, he made a statement to
Chief Inspector Gligorevic, after which he spoke to Sergeant Morris again for two to three hours. He was reassured that he was not the subject of any investigation, and that he would be given extra support because he had come forward and voluntarily made a statement, even should the matter be heard in Court. Sergeant Morris assured him that he would not be transferred, and he continued with is normal duties.
The day after, 8 August 2020, the applicant was called into Chief Inspector Robert Danks’ office. Chief Inspector Danks was the Duty Officer, and also reassured Mr Bettles that “you’ll be fine”.
Mr Bettles stated that about two weeks after his partner, whom I presume from other evidence was Lina, advised him that Chief Inspector Gligorevic had said that he, the applicant, was not in trouble and not the subject of any investigation.
The applicant was also requested by text on 24 September 2020 to attend the Internal Witness Support Unit and a meeting was arranged for 1 October 2020, where he was told he was not under investigation and would be supported if he was required to give evidence.
It was not until he received the email in April 2021 from Inspector Sabins that Mr Bettles became suspicious as to the nature of the questions he was required to answer in the Directive Memorandum. When he attended the meeting with Chief Inspector Simpson and Acting Superintendent Waldau the applicant was shocked that he was the subject of the investigation, as was confirmed by Chief Inspector Simpson’s evidence. As part of his protest during the meeting, Mr Bettles stated that when he asked for an explanation from Chief Inspector Simpson in the face of the assurances he had received over the previous nine months, Chief Inspector Simpson commented “They probably shouldn’t have done that”.
I accept Mr Bettles’ evidence that Chief Inspector Simpson told him that. There is no reason to disbelieve Mr Bettles. His conduct during this period demonstrated a strong sense of duty, to the extent that he immediately, the day after, volunteered a detailed statement to Professional Standards Command. His record of service with the police was exemplary, as
I understood Chief Inspector Simpson’s evidence. He had been a member of the plain clothes Proactive Crime Team and was an accredited bicycle operator, regularly used during special operations. I also accept that he thought his future lay with the respondent, and that the effect of this investigation may well have caused him such disappointment and frustration that he developed a psychological state that rendered him unable to work.
The facts in a case with similarities to this, Commissioner of Police v Minahan,[34] were summarised in Northern NSW Local Health Network v 2013[35] by Sackville AJA as follows:
“56. In that case, serious allegations had been made against a police officer. Another officer conducted a preliminary enquiry with a view to determining whether the complaint required a full investigation to be undertaken. The preliminary enquiry determined that the complaint was ‘ridiculous’ and that no further action should be taken. Nonetheless the police officer subject to the complaint was told that the matter would be referred to a corruption prevention unit for ‘intelligence purposes’. The officer's request that a formal investigation be carried out so that he would have the opportunity to clear his name completely was rejected. The referral to the corruption prevention unit caused the officer great distress and led to him sustaining psychological injury.
57. In these circumstances the Compensation Court found that the employer had not discharged the onus under s 11A(1) of the WC Act. Specifically, the Commissioner had not taken the interests of the officer into account in determining whether further resources should have been expended on an investigation into the complaint. The Court of Appeal dismissed an appeal by the Commissioner on the ground that the Compensation Court had not erred in law.”
[34] [2003] NSWCA 239.
[35] [2013] NSWCA 255.
There can be no criticism of the respondent’s decision to thoroughly investigate all the circumstances relevant to the conduct of Mr Bettles’ colleagues. The offences committed by them justified management in launching a wide ranging investigation in order to discover how such conduct could have occurred. The use of two mobile phones was clearly a matter which was relevant, and it was reasonable to find a sustained complaint against Mr Bettles for his failure to report that they were being used, as it was against regulations.
It is also understandable that the interests of each person disciplined (there were at least three) were subjugated to the priorities of the moment. Again, there could be no criticism of the respondent if a person so disciplined was disappointed or distressed by such actions. The Police Force is run on military lines, and if a person infringed the rules, he/she must expect to be disciplined.
Mr Bettles was a conscientious and committed member of the Force. He also knew the rules, as he illustrated by referring to the incident 2 January 2020 where a Sergeant against whom he had made a complaint, turned the tables and Mr Bettles found himself with a sustained complaint on his record. He accepted the advice of his Commander not to seek help.
In the present case however, Mr Bettles was reassured and counselled between 6 August 2020 and April 2021 that he was in no danger of an investigation, and that he would have support even if he had to appear in Court. He did have some inkling of what the meeting was for in April 2021, when he received the Directive Memorandum by email, but he was unprepared for what Chief Inspector Simpson told him on 28 April 2021, as Chief Inspector himself recorded the applicant’s immediate shock and protest.
I am not satisfied that the respondent’s actions took the interests of the applicant sufficiently into account when he was disciplined on 28 April 2021. As indicated, I accept Mr Bettles’ evidence that when he protested at the meeting and asked why he was being disciplined after having being told certain things by Professional Standards, Chief Inspector Simpson replied “They probably shouldn’t have done that”. I agree with the Chief Inspector. His comment indicates that he was unaware of the assistance that had been offered, which was a matter that he might reasonably have been expected to know and prevent if he thought such reassurances were inappropriate.

Summary

The sense of betrayal which was expressed in many different ways by the applicant has led to his suffering an adjustment disorder, from which he has improved to a substantial degree. Regrettably, the applicant now suffers from a post-traumatic stress disorder which was triggered by the treatment he was receiving for his adjustment disorder - particularly his having to prepare a statement for the insurer.
The respondent has not met its onus in this regard.
Accordingly, there will be an award in favour of the applicant.

Capacity to earn

The claim is for weekly payments from 28 April 2021, and I note that quantification of them is governed by cl 25, Part 19H of Schedule 6 to the 1987 Act, the effect of which is to preserve the applicant’s rights as they were prior to the 2012 Amending Act.
I note that it is common ground that Mr Bettles is not fit to return to work with the Police Force. Dr Chivaurah held that view on 9 July 2021, as did Dr Anderson on 13 January 2022, subject to the qualification that future treatment might cause new developments.
Dr Anderson was of the view that with his tertiary qualifications in Health Sciences the applicant might be able to find some alternative employment, but that as he presented to
Dr Anderson on 13 January 2022 Mr Bettles was unfit for all work.
I am in agreement with Dr Anderson’s view that it is to be hoped that Mr Bettles can get himself back into full employment, and I also accept that whilst he undergoes rehabilitation and treatment his options are limited. I note however that Mr Bettles finds some therapeutic value in working in Lina’s café, as he mentioned it to both psychologists. He was seen dressed in the café uniform, serving customers and delivering food and drink to waiting cars on a regular basis. It follows that Mr Bettles has a partial capacity to earn.
In such employment the applicant would be able to work at this point in his rehabilitation four days per week for five hours per day in employment in the hospitality sector doing the kind of work he identified. I note Mr Bettles was also involved with the tennis world, having been employed whilst he was younger at Emmerson tennis Centre in Smithfield. He also worked for five years as a retail manager. As I have found, Mr Bettles has shown himself to be a responsible and conscientious character and in the fullness of time will have a number of options at his disposal. However until he has undergone such rehabilitation and treatment as is necessary his capacity to earn is restricted as I have found.
Mr Bettles would earn no more than $25 per hour, and I accordingly assess his ability to earn on the open labour market as $500 per week. I note that there is a different estimate as to what Mr Bettles would have been earning but for his injury pursuant to the preserved s 40(2)(a) of the 1987 Act. The applicant’s probable earnings were said to be $1,820.73 per week whereas the respondent claimed they were $1,599.30. A payment schedule was lodged by the respondent which showed payment of $1,814.50 gross was estimated for a 30 hour week over the relevant period. I propose to use that figure, but the parties have leave to approach if a different amount is apposite.
Accordingly the respondent will pay the amount of $1,314.50 per week from 28 April 2021 to date and continuing.
The respondent will pay the applicant’s costs. I order an uplift of 30% in view of the complexity of the matter, applicable to both parties.

[2022] NSWPIC 324

24 June 2022