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

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	BOA v State of New South Wales (NSW Police Force) & Ors [2023] NSWPIC 161
APPLICANT:	BOA
FIRST RESPONDENT:	State of New South Wales (NSW Police Force)
SECOND RESPONDENT:	BMC
THIRD RESPONDENT:	BCZ
senior Member:	Kerry Haddock
DATE OF DECISION:	14 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum death benefit and weekly benefits pursuant to section 25 of the Workers Compensation Act 1987 (1987 Act); funeral expenses pursuant to section 26 of the 1987 Act; and interest pursuant to section 109 of the Workplace Injury Management and Workers Compensation Act 1998; agreement by dependants on proposed apportionment; first respondent disputed that worker’s death resulted from injury arising out of in the course of employment; reliance on section 14(2) of the 1987 Act; consideration of Kooragang Cement Pty Ltd, Mason v Demasi, Parmalat Australia Ltd v Cheadle, Murphy v Allity Management Services Pty Ltd, Holdlen Pty Ltd v Walsh, Haidary v Wandella Pet Foods Pty Ltd and Kaur v Thales Underwater Systems Pty Limited; Held – the worker died as a result of injury arising out of or in the course of employment with the first respondent; the worker’s will was overborne and his death was therefore not caused by an intentional self-inflicted injury; the applicant, second respondent and third respondent were dependent on the worker; there were no other persons dependent on the worker; the first respondent to pay lump sum death benefit; apportioned in accordance with agreement; weekly benefits and funeral expenses; the first respondent to pay interest on the lump sum death benefit and weekly benefits; the first respondent to pay costs, as agreed or assessed, of the applicant, second respondent and third respondent, including 30% increase for complexity.
determinations made:	The Commission finds: 1. The worker, BCZ, died on 17 July 2020 as a result of injury arising out of or in the course of his employment with the first respondent. 2. The applicant was partly dependent for support on the worker. 3. The second respondent was dependent for support on the worker. 4. The third respondent was dependent for support on the worker. 5. There were no other persons dependent for support on the worker. 6. The first respondent is liable for payment of a lump sum death benefit of $827,400 pursuant to s 25(1)(a) of the Workers Compensation Act 1987. 7. The first respondent is liable for payment of weekly benefits pursuant to ss 25(1)(b)(i) and 25(1)(b)(ii) of the Workers Compensation Act 1987. 8. The first respondent is liable for payment of funeral expenses pursuant to s 26 of the Workers Compensation Act 1987. The Commission determines: 1. The first respondent is to pay to the applicant the sum of $551,627.58, pursuant to s 85A(1)(a) of the Workers Compensation Act 1987. 2. The first respondent is to pay to the second respondent the sum of $102,035.80, pursuant to s 85A(1)(a) of the Workers Compensation Act 1987. 3. The first respondent is to pay, pursuant to s 85(1)(a) of the Workers Compensation Act 1987, to the NSW Trustee and Guardian the sum of $173,736.62, to be held on trust for the third respondent until she attains the age of 18 years. 4. The first respondent is to pay, pursuant to s 25(1A) of the Workers Compensation Act 1987 the fees concerning investing or otherwise managing the sum paid to the NSW Trustee and Guardian on behalf of the third respondent. 5. The first respondent is to pay to the applicant, pursuant to ss 25(1)(b)(i) and 25(1)(b)(ii) of the Workers Compensation Act 1987, weekly benefits in respect of each of the second and third respondents at the rate of $148.10 per week, as adjusted, from 18 July 2020 to date and continuing. 6. The first respondent is to pay funeral expenses, pursuant to s 26 of the Workers Compensation Act 1987. 7. The first respondent is to pay, pursuant to s 109(1) of the Workplace Injury Management and Workers Compensation Act 1998, interest on the lump sum benefit and the weekly benefits at the following rates: (a) from 19 October 2022 to 1 November 2022 at 4.6% per annum; (b) from 2 November 2022 to 6 December 2022 at 4.85% per annum; (c) from 7 December 2022 to 7 February 2023 at 5.10% per annum; (d) from 8 February 2023 to 7 March 2023 at 5.35% per annum, and (e) from 8 March 2023 to 12 April 2023 at 5.6% per annum. 8. The first respondent is to pay the costs, as agreed or assessed, of the applicant, the second respondent and the third respondent. 9. The costs of all parties are subject to an increase of 30% due to the complexity of the matter, including the necessity to review considerable lay and medical evidence, difficult issues of causation, and the first respondent having maintained that the worker’s death was due to an intentional self-inflicted injury. 10. The parties have liberty to apply.

STATEMENT OF REASONS

BACKGROUND

The worker, BCZ (BCZ), was employed by the first respondent, State of New South Wales (NSW Police) as a police officer.
BCZ took his own life on 17 July 2020.
The applicant, BOA, the worker’s widow, made a claim for payment of the lump sum death benefit, pursuant to s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act); and for weekly payments in respect of the children of the marriage, BMC, and BLD, pursuant to s 25(1)(b) of the 1987 Act; and for interest.
I have referred to the second and third respondents by their given names, to avoid confusion, while meaning no disrespect.
There is no evidence as to when the claim was made, although the dispute notice issued by the first respondent’s insurer, Employers Mutual Limited (EML), pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) suggests that it may have been on 27 October 2020, as it referred to a letter from Matthews Williams Solicitors of that date. The letter, however, is not in evidence.
On 23 April 2021 EML issued the notice I have referred to above.
EML disputed that BCZ suffered any work-related psychological or physical injury which may have led to him committing suicide on 17 July 2020. It maintained that no compensation was payable as his death was “caused by an intent”, pursuant to s 14(3) of the 1987 Act; and that the mental health illness that led to his suicide had been precipitated by events related to his personal marital issues and not to any work-related injury.
The applicant lodged an Application in Respect of Death of Worker (the Application) on
19 October 2022.
The applicant claimed that the worker’s death by suicide on 17 July 2020 resulted from the effects of post-traumatic stress disorder arising from exposure to death, destruction, violence, injury, and horror whilst in the employ of NSW Police.
The applicant claimed lump sum compensation of $827,400; a weekly amount of $148.10, as adjusted, in respect of each of the second and third respondents, from 18 July 2020 and continuing; and interest.
The second respondent filed her Reply on 8 November 2022.
The first respondent filed its Reply on 9 November 2022.
The third respondent filed her Reply on 9 November 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) injury, to the extent that post-traumatic stress disorder is relied on to establish causation;
(b) section 14(3) of the 1987 Act, and
(c) the benefits themselves, that is, ss 25 and 26 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration hearing on 17 January 2023.
Mr McEnaney of counsel appeared for the applicant, instructed by Ms Sutcliffe. BOA was present. Mr Young of counsel, instructed by Mr Siva, appeared for the first respondent;
Mr Allen appeared for the second respondent, and Mr Nikolovski and Ms Harris appeared for the third respondent. BEU attended as support person for the second respondent. BTF attended as tutor for the third respondent. Ms Kaspar from EML also attended.
The applicant sought an adjournment to obtain a statement from the second respondent.
The first respondent opposed the adjournment. For reasons given on 17 January 2023, and which were recorded, the adjournment was granted, and a timetable was set for the filing of further evidence.
The matter was again listed for conciliation/arbitration hearing on 13 March 2023.
Mr McEnaney appeared for the applicant, instructed by Ms Sutcliffe; Mr Young appeared for the first respondent, instructed by Mr Mead; Mr Hunt of counsel appeared for the second respondent, instructed by Ms Campbell; and Mr Nikolovksi and Ms Harris appeared for the third respondent. BOA, the second respondent, and BTF were present.
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 (Commission) and considered in making this determination:
(a)    Application and attached documents;
(b)    first respondent’s Reply and attached documents;
(c)    second respondent’s Reply and attached documents;
(d)    third respondent’s Reply and attached documents;
(e)    Application to Admit Late Documents by the first respondent dated
12 December 2022 and attached documents;
(f)    Application to Admit Late Documents by the second respondent dated
20 January 2023 and attached documents;
(g)    Application to Admit Late Documents by the first respondent dated
15 February 2023 and attached documents, and
(h)    an email from counsel for the applicant dated 13 March 2023, which was forwarded with the consent of the other parties, to whom it was copied, advising of the proposed apportionment of the lump sum, should an award be made in the applicant’s favour.

Oral evidence

There was no application to call or oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, BOA

BOA has made three statements, dated 20 July 2021, 22 July 2022, and 20 September 2022. I do not intend to refer to all her evidence but will summarise what I see as the main points.
On 20 July 2021, BOA stated that she and the worker were together for 17 years. They were married in 2006. He served in the NSW Police for 18 years, mainly at Parkes, Orange, and Dubbo in general duties.
In around 2018, the worker really went downhill, but he had been taking anti-depressant medication due to work since around 2012.
In 2020, whilst at work, and in uniform, the worker would smash things and punch holes in the wall at home. He reported himself to his inspector on this occasion but had been very angry and verbally abusive numerous times over the previous two years. His relationship with his daughters had rapidly deteriorated, and BLD rarely came out of her room while he was at home.
The worker had attended numerous incidents of death, destruction, violence, fear, and injury. He often mentioned work-related incidents, but in the past couple of years had become a shell of his former self and seemed to have no feeling.
There were a couple of incidents leading up to his death that affected BCZ badly. There were vast differences in his reaction, and this was when she knew he was suffering badly from post-traumatic stress disorder.
On one occasion, the worker went to a job where a man was deceased, and his dogs had eaten his face and toes. He had ongoing nightmares about it. When she encouraged him to seek help, he responded that all humans had become just a piece of meat to him. She was horrified and very upset.
The second event that stuck in her mind was an accident in which the mother of a family was decapitated. The worker was extremely traumatised, and his nightmares got worse. He would not seek help, as he was in an Acting Inspector’s role, and knew how that would be perceived.
In approximately 2014, the worker went to local high schools to talk to kids who would be getting their licence. The day after he delivered the program, one of the girls pulled out in front of a car, and she and her mother were killed. The girl wasn’t wearing a seatbelt and “by all accounts the scene was horrific”. She believed the worker was the first responder.
The worker was extremely traumatised and believed he was responsible for the two deaths, because of the way he delivered the program.
This event ruined a planned family holiday. The worker was very angry and upset the whole time they were away. She knew her girls had a very clear memory of this because they still mentioned it.
She firmly believed the thing that had one of the biggest effects on the worker was dealing with a woman under his supervision between 2016 and 2020. She had extreme mental health issues. He dealt with it on his own. This woman would contact him at all hours, sometimes abusing him, and sometimes indicating she was going to suicide. He would often counsel her for hours. He was given NO support from his superiors, who were very aware of the state the woman was in. (Capitalisation in original).
The worker sought help in around 2012 for work-related anger and depression, seeing their general practitioner (GP) and a psychologist. The culture in the Police Force is not to voice that you are struggling and seek help, as it affects your career and how many peers and supervisors treat you. The worker refused point blank to let anyone know how he was feeling, although she and her older daughter encouraged it many times.
Since around 2018, the worker started to deteriorate. He became very hard to live with. She could tell the job was affecting him.
In around early July 2020, they had a relationship breakdown, which was due to the worker’s symptoms and what she believed was his post-traumatic stress disorder. He was no longer himself due to his work. His work ended their marriage and his life.
On 22 July 2022, the applicant stated that she had attempted to end her marriage a number of times, but the worker would not accept her decision and kept stating he would get help. He did not do this until a couple of weeks before his death. Admitting you are not well and not coping is highly frowned upon, and he badly wanted to get back to Highway Patrol. He believed seeing a psychologist or admitting there was a problem would hinder this.
The worker first began to exhibit anger issues around 2009/2010. They both believed they were work-related. She encouraged him to get help, and he started anti-depressant medication, and saw psychologist BKK a number of times. He remained on medication until he passed away, as the few times he tried to stop saw the return of anger and depression.
Over the next 12 years, the worker became increasingly cynical and paranoid. They did not associate with anyone other than police, and he was suspicious of everyone. He drank more, and in the 12 months to two years before he died, was a functioning alcoholic. They had slept in separate beds for at least 12 months before his death, as a result of both his drinking and his recurring nightmares.
She was aware the applicant first saw BKK in approximately 2015 for work related issues. She had been trying to get him to see her again for some time, but he would not agree. This was partly because she did not think he wanted to admit to himself that his job was not serving him well, and partly because it may hinder his return to Highway Patrol or other career endeavours.
She was also aware that the applicant had seen BKK twice in the weeks leading up to his death, as her decision to end the marriage had made him realise he needed to do something. She did not doubt these visits were centred around their relationship ending, and not the work-related issues, as the marriage breakdown was forefront in his mind. Had he seen BKK earlier, this would not have been the case.
She had asked the worker to leave a number of times due to his increased drinking and anger issues. “Looking back”, the deterioration had been happening for years, but for the last 18 months to two years, he had been a shell of a person. It was evident in photos there was “no one home”, no light in his eyes. She was only 40 and realised she didn’t want to live the rest of her life like this.
She recalled the worker having punched a photo frame hanging on the wall. He had come to the house while he was working, in full uniform and in a police vehicle. He seemed OK when he arrived, but smelled that she had been smoking, and started to get very angry. He stamped his foot when she told him it was her choice.
The worker got a glass of Coke and suddenly turned and threw it very hard at the ground, smashing it everywhere. He started pacing and making rambling mumbling noises, then punched with full force into a picture frame and the wall behind it. His knuckles were cut and bleeding.
A few seconds later, he seemed to snap out of a trance and started to apologise. She didn’t really say anything and started to clean up. He kept saying he didn’t know what happened, and she asked him to leave, as the girls would be home in five minutes, and they did not need to see this. She believes he went to the police station and reported what he had done.
It had been raised that her late husband committed suicide as she was having an affair. This is incorrect. She did not at any time during their 17-year relationship have an affair. He suspected this as they drifted apart due to his changing moods as a result of his post-traumatic stress disorder and paranoia.
BOA’s final statement is dated 20 September 2022.
The worker had been prone to anger management issues since approximately 2009/2010. He would not seek treatment or talk about his problems without her prompting. She insisted he see his GP Dr BRD, who prescribed Zoloft. There were no issues that she was aware of that caused his anger issues, other than his exposure to traumatic events.
Once the worker started taking this medication, his anger problems diminished, unless he was not taking it. He continued working and their marriage and family life were uneventful, although from time to time it became apparent that something wasn’t right, and his personality was changing. He had always been confident both at work and at home. The accident in which the L plater and her mother were killed caused him considerable guilt, which wasn’t a normal reaction.
In mid/late 2015, a further change in the worker’s demeanour and attitude occurred. He was having interpersonal issues with a superior whom he felt was targeting him. By March 2015, he was extremely irritated, angry, and hyper-focused on the superior. He talked about it non-stop, to her and co-workers.
She believed he may have spoken to someone higher up and nothing was done, so he became more agitated and saw Dr BRD. He was diagnosed with anxiety and mild depression and referred to BKK. His Zoloft was increased. This was the subject of an accepted workers compensation claim.
The worker had a few months off work and returned to full duties by the end of June 2015, but it was recommended he continue to consult BKK. She does not believe he attended any further consultations until 2020, despite her continual prompting that he needed treatment for his low mood and irritability, which were apparent to her and the children.
On 9 February 2017, the worker was accidentally pricked by a needle while trying to restrain a mental health patient. This was reported and was the subject of an accepted workers compensation claim.
The worker was diagnosed with anxiety. He had to await test results to know if he had contracted anything. He was becoming more irritable and found it difficult to concentrate. He wasn’t sleeping well and was having nightmares. He would tell her about them. They were usually from incidents he had attended at work. They upset him but he would try not to show emotion.

The worker was again referred to BKK. She does not believe he saw her, as he thought it would be detrimental to his career. She felt as if his post-traumatic stress disorder was gradually getting worse, he was refusing to acknowledge it more and more.
By the end of March 2017, the worker returned to his normal duties. Although she actively encouraged him to continue to see BKK, he refused. She constantly tried to get him to see her. He would say things like, “I don’t need to”, or “She can’t help me”.
The worker was very driven in his career and aspired to be promoted. He told her he could not have anything on his record that could be seen as a sign of weakness or impeded his career progression. It is well known among police that as soon as you make any noise about these sorts of things, the promotions and courses stop. It is frowned upon.
In August 2017, the worker’s brother, BPD, committed suicide. He did not show any increased emotion, other than the normal grief reaction from losing a loved one. He already had low mood and irritability, and this did not change.
By March 2018, the worker’s symptoms had become more prominent. He was tired all the time and lacked motivation. His irritability was getting worse. He was drinking more than before, having six to eight beers each night. He didn’t drink much at the start of his career, but it increased gradually over time, from two beers each night. There would be episodes of binge drinking with other police until he was incoherent.
There was one episode where she knew they were in “serious trouble”. The worker was drinking with another officer. He fell and landed flat on his back on the sharp edge of the step. It would have been extremely painful, but he didn’t seem to realise it had happened. Between them, they had drunk 38 beers. This sort of binge drinking happened about every three to four weeks.
She was able to get the worker to see Dr [redacted] at Anson Medical Centre. She understood the worker saw him on 3 April 2018 and received another referral to BKK for cognitive behavioural therapy.
The worker was very good at hiding how he was feeling when he went to work. He continued to drink heavily outside work. She and the kids felt the brunt of it at home. Although they did not “fight”, there were episodes of him smashing things and punching holes in the wall. When his anger boiled over, she would walk away, and the kids would stay in their rooms.
Over the proceeding [sic] two years, the worker became more depressed. He seemed to lack emotion and did not want to communicate. He had clearly lost the ability to “feel” emotion.
Looking back, the worker was gradually deteriorating over the years. There were no external factors she was aware of that caused the decline in his mental health, other than those she had mentioned, and the general exposure to traumatic incidents. She considered him a functioning alcoholic.
As the worker’s mood worsened, their relationship started suffering. She felt they were drifting apart. After one phone call with the woman who had mental health issues, he was curled up on the lounge, crying and saying, “I can’t do this anymore”.
It got to a point, in approximately mid-2019, when they were essentially just living in the same house, with no relationship left. Sometimes he would agree to get help, but it didn’t happen. He talked her around, brought the kids into it, and made her feel guilty.
At about that time, the worker got a transfer to Orange Highway Patrol, approximately 1 hour and 10 minutes away. It meant he needed to stay in Orange for days at a time, depending on his shifts.
In early July 2020, when the worker was in Parkes, she told him she couldn’t do it anymore, she was deeply unhappy, and wanted to separate permanently. He took it quite well initially but continued to struggle.
They wanted to keep a sense of normality for the children. Their financial situation remained unchanged, and the worker stayed at their home when he returned from Orange. They continued to sleep in separate beds.
The worker stayed with her parents in Orange from March 2020 to the end of June 2020. He would travel back to Parkes a couple of times per week to see her and the kids.
About two weeks before he passed, she asked the worker to move out. He left her parents’ house to stay with two colleagues in Orange. He would return to Parkes a couple of days per week to see the kids but would only make a day trip.
Before the worker’s death, she worked full time for Services NSW. She has given evidence about her and the worker’s income.
The worker paid the mortgage, car repayments, rates, water, electricity, and gas. Her wage paid for groceries, school fees and excursions, and incidentals. Apart from the mortgage and two car loans, they had no liabilities.
She paid the mortgage and the car loans with the death benefit from the worker’s superannuation.
It was her and the worker’s intention to financially support the children until at least the age of 21, and beyond as necessary.

Evidence of the first respondent, BMC

BMC’s first statement is dated 2 November 2022.
BMC was born in 2004. She was in year 12 when she made the statement, and it was her intention to go to university. Her parents had told her they would support her in this, and she believed they would support her financially until she obtained fulltime work.
She had been diagnosed with depression and was undergoing therapy and taking medication.
BMC made a further statement dated 18 January 2023.
Her first recollection of the worker being an angry person was when she was about eight. BLD got into trouble from him for no reason, and he got really mad. He just seemed to go off for no reason.
When she was about 10 or 11, she became aware that the worker was not like her friends’ dads. He was angry a lot more than others, he lost his temper a lot more frequently and had a “short fuse”. This was different to other fathers. He drank much more than other dads.
She saw the worker come home from work angry. When she was about 10 or 11, she remembers him having a short temper with her and BLD. When BLD was about seven, she had a “tiny whinge about something”, and he really lost it at her. She remembered thinking BLD did not do anything to deserve getting in so much trouble. She began to think the worker was always angry and short tempered.
Between when she was aged between about 10 and 13, she remembered the worker would raise his voice and slam doors if he was in a bad mood. It occurred mostly if he had a bad day at work.
When she was about 11 or 12, they were a couple of days from heading to the Gold Coast on holiday. She heard the worker tell BOA he went to a “really bad fatal car accident” where “a couple of children” died.
It was a 10-day holiday. The worker was angry for the entire trip. She felt the whole holiday was a waste of time, as he didn’t want to do anything and got really angry at them the whole time.
When she was about 14, she remembered listening to the worker about a few bad things that happened at work. Most of the stories were about car accidents. He was in Highway Patrol. He didn’t really try to hide much from them, even though he didn’t like to talk about how it made him feel. She was aware that he saw some horrific stuff.
When she was about 15, just after “BDP” passed away, she heard the worker tell
BOA about finding a man dead in his house. He had “been there quite a while and the smell was really bad”.
She was about 13 when BDP passed away. The worker was upset but she didn’t see any major changes in the way he acted. He was still behaving in the same angry way.
By the time she was about 10, she began to notice that the worker drank more than her friends’ fathers. When he had a drink, it was always a lot. She did not think it increased when Uncle BPD passed away.
When BDP passed away, she noticed the worker was a bit more closed off and did not want to talk about his death. It took about a year, but he got back to how he was before. Eventually he started to accept it. He got back to working as a police officer and was back to his usual angry self.
She remembered the episode of which the applicant has given evidence, when the worker slipped and fell, although she stated his back struck the sliding back door. The worker was drinking with a mate (whom she named) and “wrote himself off”.
When she was about 15, she had a discussion with the applicant about changes in the worker’s behaviour. She had noticed he was consistently angry and did not have any good days anymore. She could not tell how he would act when he got home from work. “He loses it quite quickly”. The applicant said she had noticed it as well. The applicant said something like, “I think his work is really affecting him”.
She said to the applicant that she thought the worker should talk to someone about his anger. The applicant said he did not want to, saying “I don’t need help. I’m fine”. Her observation was that he wasn’t fine. In the end he was always having bad days.
The worker suffered nightmares. He was sleeping in the spare room for about a year. It was next to her room. He was waking in the night and talking in his sleep. She would hear him talking, and when he woke or was restless. The applicant said something like the worker was in the spare room because he had nightmares that woke her. He got restless and would sleep in the spare room if he was having a bad night. He never accepted that he needed help for his nightmares. He just seemed to put up with it.
When she was about 16, she walked into the kitchen and the worker was sobbing and could not stop crying. She asked what was wrong, and he said, “I don’t want to talk about it”. She told the applicant about it that night.
The worker told her he really loved his job, but he did not want her joining the police, as “You are too smart for that. You have too much potential. You can do so much more”.
The worker did his best to hide the horror of his job, but sometimes it would leak out. She overheard many conversations about car accidents. She just thought that was what he did.
In the last two or three years, the worker’s attitude towards the applicant had changed. He didn’t talk to her as he once had. The applicant said she thought he had become really bad. She couldn’t convince him to get help.
She was going to do a Bachelor of [redacted] Science with the University of [redacted], which would be full time study.

Evidence of the third respondent, BLD

BLD statement is dated 9 November 2021.
She was born in 2007.
She was at that stage in year 8. She was a good student and would like to go to university.
Her parents had always supported her, and she never longed for anything. She knew they would support her financially as much as they could.

Evidence of BEU

BEU is the applicant’s mother. Her statement is dated 9 October 2021.
The worker was instantly liked by everyone. He was friendly, confident, and interested in other people. They loved him dearly and he spent a lot of time in their home. He became a “son”. They felt they knew him well, and knew he had a passion for his job and took pride in doing it well.
There were a few incidents that the worker had difficulty processing and he talked about them in quiet moments. She referred to the school-based training program and a horrific accident on the Newell Highway, resulting in a death. This disturbed the worker greatly, and the gruesome images remained with him.
The worker spent a very anxious six months following an incident when a syringe entered his arm.
She referred to the occasion when the worker was directed to a caravan containing a deceased person. “In theory”, he felt he could view the body in a completely detached, unemotional way.
Over the last 12 months, the worker was not the same outgoing person. He was very “controlled” and not spontaneous. He was putting all his effort and energy into his job but was very unhappy. He felt he was functioning as he had always done but was emotionally very detached.
In the worker’s last year at Peak Hill, it was obvious he was very involved in assisting a staff member with severe issues. He was emotionally drained and his interaction with his family altered. “In hindsight”, it is easy to see he thought he was behaving and responding as he always had. However, at some level, he was aware he was exhausted emotionally. In his own words, he “had taken his eye off the ball”.
The worker was able to leave Peak Hill for Orange, but this resulted in a greater separation from his family. In her opinion, his behaviour from work led to the breakdown in relations between him and the applicant.

Evidence of BFM

BFM is a Detective Senior Constable of Police. His statement, provided shortly after the worker’s death, is dated 25 July 2020. He attended the scene after being advised by other officers of what had occurred.
BFM stated that the worker sought support from Chief Inspector Cooper on
26 June 2020, after the applicant ended their marriage. The worker stayed that night with BOA’s parents, “[redacted]”.
On 27 June 2020, the worker and the applicant exchanged text messages, in which she said she needed some space. He respected her wishes and remained in Orange.
On 29 June 2020, the worker went to his house to pick up some things. The applicant said she felt the marriage was over. He became upset and punched a photo on the wall. He contacted Chief Inspector BGL about the incident. The applicant corroborated his version and confirmed she did not fear for her safety.
The applicant expressed concern for the worker’s welfare and Chief Inspector BGL provided him with further advice. These events were recorded in the police computer system.
The worker completed his shift on 30 June 2020, then took two weeks sick leave, due to the stress of his marital breakdown, returning to work on 13 July 2020. He completed his shift on 14 July 2020, and was not due to return to work until 17 July 2020. He was observed to enter his office on 16 July 2020, sit at his computer, and leave a short time later.
BFM had reviewed the emails received and sent by the worker on 16 July 2020, and observed none of interest.
BFM spoke to Sergeant BHL.
BHL stated he was present at a training day approximately two weeks ago, when unknown officers suggested the applicant was having a sexual relationship with an officer from Parkes Police. He demanded the officers stop speaking about the matter.
A day or so later, the worker thanked BHL for sticking up for him, and stopping others talking about his personal issues. He told BHL of his marriage breakdown, and how he was still struggling with the death of his brother. He made no comments about feeling suicidal.
BFM was alerted by Detective Sergeant BIR on 17 July 2020 to a WhatsApp group that included the worker, Senior Constable [redacted].
BFM saw a screenshot dated 1 July 2020, in which the worker left the group after posting the following message:
“I’m leaving this chat group. I can’t be involved with a grubby cunt. To the gents in the group I’ll stay in touch. Cheers.”
BFM expressed the opinion that the worker was suffering depression after the suicide of his brother and the breakdown of his marriage. There was unsubstantiated evidence that the applicant was having a relationship with another person.
BFM believed the worker would interpret this extra-marital affair as an extreme personal betrayal and it resulted in his personal humiliation among friends and colleagues within the NSW Police.

Evidence of BJK

BJK is a Superintendent of Police. His statement is dated 8 November 2020.
He commenced employment with the worker in February 2020. He didn’t know the worker before this but had seen him around the station.
He was not able to comment on the worker’s psychological injuries in 2015 and 2017.
The respondent provided EAP (Employee Assistance Program) chaplain support, and when required, referral for counselling. It also provided ongoing reminders of these services.
The worker never raised the events of 2015 and 2017 with him or discussed requiring additional treatment or leave. He commenced his role at Orange with what seemed to be a positive and professional nature.
He never witnessed any signs of work-related stress or anxiety from the worker’s employment in the time he knew him.
He was aware that the worker’s wife had ended their relationship and remained in Parkes when he moved to Orange. He had a conversation with the worker two days before his passing and offered assistance if he wanted to talk about this. He would have offered a referral for counselling if he had noticed significant psychological suffering. The worker seemed happy and grateful for assistance offered. He was a calm person to the outsider.
He was aware that the worker had spoken to others at the station and was at times upset about his marital breakdown. No employee had reported to him that the worker was stressed from his duties.
He was prompted to speak to the worker because BCZ had attempted a reconciliation with the applicant within a few days of him taking the job at Orange, and apparently lashed out and broke an object. She had reported this to Inspector BGL, and there is a record of the incident, but no further action was taken.
After the worker’s passing, he was made aware that his brother had committed suicide two years earlier, and he had never dealt with that. He apparently was no longer himself, which placed a massive strain on the marital relationship. That was the reason behind the breakup, and not the transfer to Orange.
He did not witness any abnormal behaviour or demeanour immediately prior to 17 July 2020, and the worker never reported any work-related issues affecting his mental health at that time. He was aware the worker was seeing BKK for marital breakdown, but not work-related issues, to his knowledge.
He spoke to the worker’s father-in-law on the day of his passing. He was shocked, as the worker seemed his normal self. He was upset with his daughter around the time, due to the breakup.

Evidence of BLF

BLF is a Chief Inspector of Police. His statement is dated 8 November 2020.
He could not comment on the worker’s psychological injuries in 2015 and 2017.
He would have seen the worker when they were on shift together in the couple of months prior to his passing. He didn’t witness the worker acting any differently to his normal self. He seemed to be friendly, happy, and easy-going. Everyone seemed to get along with him.
He was not aware that the worker had any work-related stress, or reported such to senior staff, between early 2017 and early 2020. There would have been the normal pressures of being in a supervisor’s role, but he performed to a high standard and didn’t show signs of struggle.
He could not comment on the circumstances of the worker’s separation from the applicant, or whether he complained to others about his personal life.
He would have seen the worker within the last week before his death and he seemed OK. No other employee reported he was suffering in that week.
He was aware that the worker’s brother committed suicide around two years ago. He was not aware of issues the worker had with that death.

Evidence of BGL

BGL is a Chief Inspector of Police. His statement is dated 27 December 2020.
He could not comment on the worker’s psychological injuries in 2015 and 2017.
The worker did not make any comments to him about work-related stress, that he could recall.
The worker sought peer support from him in the weeks leading up to his death. He advised that the applicant had asked him to leave. He was devastated and trying to work out why this had happened. He said he thought it may have been due to him transferring to Orange and being away more. He was aware that some years earlier, the worker’s brother took his own life, and this was very hard for him to deal with.
He was aware that in the weeks leading up to his death, the worker sought attention from his GP and referral to a psychologist. He encouraged him to seek help, particularly in relation to the relationship issues he was having.

In the week or so before his death, the worker came to his house to report a domestic matter. He and the applicant had had an argument relating to their relationship. The worker punched a photo frame on the wall. He contacted the applicant, took some details, and created a COPS event. The worker’s behaviour was out of character.

Evidence of BMD

BMD is a Detective Sergeant of Police. His statement is dated 27 December 2020.
He was stationed at Orange from 1997 to 2008, and met the worker there. They became friends.
The worker was happy in his work environment, often smiling, and very easy-going. He attended to his work with enthusiasm. He was very happy with his successful application for Highway Patrol officer.
He cannot recall the worker stating he was unhappy with either his work or personal life when he was the sector supervisor at Peak Hill. He was very happy with his work. He said several times that he enjoyed working with his team and the community. He was held in high regard and very well-liked by many people in Peak Hill.
The worker was stressed about the needle stick injury, but after a few conversations he seemed fine. He accepted the situation and moved on.
The worker had spoken to him about applying for the job of supervisor at Highway Patrol at Orange, and he gave him some advice. He also applied for a job, in Newcastle.
They were both successful and were both “pretty happy” about their situations.
A few weeks later, he saw the worker at his farewell from Parkes, BCZ having come in for this event. They spoke about their moves, and the worker was happy. He was smiling and they had a laugh about a few things. That was the last time he saw the worker.
He could not recall the worker commenting about his personal life being anything but normal. He was aware that the worker’s brother committed suicide, which greatly affected him and his family, but the worker did not speak of it during their many conversations. He was under the impression that the worker’s family life was fine, and he had a normal life outside work. He did not hear that the worker and the applicant were having marriage issues and only heard it after the worker passed away, never from him.
He had not heard from the worker since May 2020, but the last few times he saw him, he was his normal, happy, smiling self, eager to chat and laugh. He was not aware of the worker having any psychological issues.

Suicide notes

BCZ left several notes. It is not my intention to refer to them in detail, and I have paraphrased some of the content.
Two of the notes are addressed to “[redacted]”, the worker’s parents-in-law. The worker apologised for “doing this here”, told them not to go into the shed, but just to contact the police station. He asked them to take care of his three girls.
The worker asked that they not be angry or sad, but respect this was where he felt he needed to be.
There is a note headed “Things I’ve Learnt!”.
The worker wrote that he had “trod water” for the past three years, believing change was just around the corner, “hanging in there for life to go back to ‘normal’”. Treading water drowned his wife. He had her everlasting, unconditional support but ultimately took her love away “by my actions”. His actions were not meant to hurt her or lose his family, but they had.
The worker was used to fixing things for everyone else. He broke himself and his whole reason for being in the process. He did not want to fix this for him, but for his family. Without it he was nothing.
He thought he had security by the truckload but couldn’t see that the truck had a slow leak. He had love to give to his family, and the desire to fix this. He was scared it was too late. “Looking in perfect family, looking out perfect family”. The applicant had issues along the way. They could get through them, and they did.
Next to the word “BPD”, the worker has written that he didn’t ask for this, he wore the guilt at times, but had to accept it was his choice, no one else’s. (Emphasis in note). The worker shouldn’t have waited but couldn’t see what was happening.
Next to the word “BOA”, the worker has written “texts – I FORGIVE !!!” (Capitalisation in note). She looked for a spark, he had a flat battery. He didn’t know it, but he did. She didn’t mean any of it, she was reaching out for something he gave her, and could give her again, but only if [illegible]. (Emphasis in note).
The worker knew the applicant still loved him and still cared, she just wanted/needed “the emotional Boogie back not just the practical/physical Boogie. HE IS STILL THERE!!” (Capitalisation in note). She could not smile at him unless he was smiling at her. The world will only smile back if you smile first.
There was no blame, just lessons to be learnt. They could be stronger from this. The worker hid from BOA’s birthday. It was BPD birthday. “It was 40!!” (Emphasis in note). It made making up for it on Mother’s Day pleasurable.
There is a note to the applicant, in which the worker said he forgave her, and hoped she forgave him.
The worker then provided instructions to the applicant regarding financial matters, and there are various calculations.
There is also a note to the second and third respondents. The worker said they were his world. He wanted them to be strong, successful, loyal, and “the best person you can be”. They were his proudest achievement.
There is a note to “Mum, Dad, BNC” (the worker’s brother, BNC), in which the worker apologised for doing this to the family again, “after all we have been through”. He understood why BPD did what he did. Suicide was a choice, not reflective of anybody, just of resilience, “and when you know you just know”.
The worker believed suicide prevention was wrong, “it should be ‘I am glad he is where he wants to be, where he believes is a happy place, free of pain.’” This was his choice, which should not be grieved, but respected and enjoyed, as would any other choice he made. He concluded “I’m with BPD!”
There is what appears to be a timeline or chronology. At the top appears “Sunday. Seen in (probably Parkes) b/w 3-4pm.”
The timeline is as follows:
·        28/4: texts ↑ dramatically
·        19/5: told to leave
·        22/5: come home
·        24/6: party (night out). There is an illegible notation that appears to include the words “day shift” next to what may be a person’s name;
·        25/6: leave again
·        29/6: smashed glass
There is then a notation “didn’t buy anything. Cree sells it anyway. Lingerie → F/B (assumed to mean Facebook) no mention. No link/like of page suggests sells/hosts party”.
There is a notation about a “divorced group”, which names three women.
There is a note to check the roster for 10/5. “Night before I started. ‘Go over tonight so you will be fresh tomorrow’”. Next to this appears “BPA night shift!”
There then appears to be an analysis of shift times for “LSC BPA” for dates in July.

Medical evidence
Anson Medical Centre Pty Ltd

The records commence on 19 April 2008.
On what was possibly 19 October 2011, BRD recorded that the worker felt down, and yesterday could only stay at work for one hour. He was crying, “flat for a while. Work OK”. He did not have “suicide” thoughts. BRD recorded “always happy”, and “no previous episodes depression”. There was “EMW (early morning wakening) +++/gets out of bed OK”. The worker had lost 5kg. His relationship was “OK”.
BRD recorded that the worker had been unwell for several months. He was irritated by little things. He had dropped out of lawn bowls. BRD noted major depression and “off work 3 weeks”, but also that “has to go to work”. He prescribed Zoloft.
On 21 October 2011, BRD recorded that the worker had “slept OK last night”. He was crying. He had one week off work and felt much better. He had been talking with his wife. He still had reduced motivation. He was to continue with Zoloft.
There is a referral dated 25 October 2011, for an unrelated condition, in which BRD noted that the worker’s history included a significant depressive illness in early October 2011.
On 4 November 2011, BRD recorded “review depression OK”. The worker had sustained some physical injuries on a waterslide in Queensland. He was certified fit for work on 9 November 2011.
On 20 July 2012, BRD again prescribed Zoloft.
On 17 September 2013, BRD recorded that the worker complained of snoring “+++”. His weight had increased. There is a notation of “sleep apnoea (wife)”. The worker was mentally well and felt well.
On 8 September 2014, BRD recorded what appears to be that the worker had ceased Zoloft for two weeks, recommenced, and felt much better. There were “hassles with work management”.
On 27 March 2015, BRD recorded a complaint of “hassles at work”. The police would not allow the worker to go to his best mate’s funeral in Yamba two weeks ago. Two days before, he had walked out of work. He was “cranky. Fine at home”. He had “good mates at work x 3”. He took Zoloft. He was anxious walking into the station.
In September 2014, there had been a meeting about changed work hours. There was “work negativity +++”. Home was “10/10”, and “6-7/10 work”. The worker had suicidal thoughts (what appears to read “recently”). He was crying and irritable. BRD recorded anxiety/mild depression.
On 30 March 2015, BRD recorded that Inspector BUK had told the worker to “put down as W/Cover”.
The worker’s only stress was with work. There were issues that had happened at work, “lots of little things. (RYDA Rotary Youth Driver Awareness → young girl killed Molong)”.
On 15 May 2015, BRD recorded that there was a career management meeting. The worker felt sick to go to work. He went home and was “cranky with wife/kids”. He was frustrated “+++”. He was not at work. “Reactivation of W/Cover issues”. The worker was anxious/cranky/depressed. Reactivation of work issues was causing anxiety and depression.
On 18 May 2015, BRD referred the worker to BKK. He noted that the worker’s past medical history included depression and treatment with Zoloft in 2010. He “made a very good recovery”.
BRD told BKK he had seen the worker on 27 March 2015, when he was experiencing environmental issues due to work. BRD felt he was having episodes of anxiety and some mild depression, due to work related issues. The worker stated his only issues were at work, and he felt well at home.
The worker was complaining of recurrence of work issues. He felt extremely frustrated and that he was being unfairly treated. This was becoming an issue and impacting on his family life. BRD had asked him to continue with Zoloft 100mg daily.
On 29 May 2015, BRD recorded that the worker had not seen BKK yet. He got cranky and irritable. He had dreams and woke at 3am. He had “suicide thoughts”.
On 29 June 2015, BRD recorded that the worker had seen BKK three times. He was fit for work. BRD recorded “? bizarre dreams with Zoloft”.
On 8 March 2017, Dr BVG recorded that the worker had received a needle stick injury. He was having blood tests and had “been ruminating on the events”. He had been on Sertraline over a year ago “for a similar thing” and had been off it for the past year. The issues were recorded as “anxiety;? PTSD;? depression”. The worker was referred to psychology and prescribed Sertraline.
Dr BVG referred the worker to BKK. His referral stated that BCZ had been having issues with anxiety, mood management in the last three weeks, “which has been triggered by things that happened in the course of his job as a police officer”.
On 27 March 2017, BVG recorded that the worker was feeling much better, “better head space”. He had seen the psychologist with a view to having more consultations. He was on Sertraline, sleeping better, “anxiety less, concentration better”. BVG certified him fit for pre-injury duties.
On 3 April 2018, Dr BXE recorded a long discussion about the worker’s mental health. He had lost his brother, who suicided. He was feeling tired a lot since last August. He was on Zoloft. “Snoring a lot. Lack of motivation”. Zoloft was prescribed. A referral to BKK for cognitive behavioural therapy was created.
The Mental Health Care Plan recorded that the worker was on Zoloft 50mg for anger management. “His brother had a suicide last August 2017, since then poor concentration, low mood.”
On 4 July 2019 BRD noted that the worker complained of “tired +++” and “wife says apnoea/spare bedroom!” “Brother suicide 2 years”.
On 30 June 2020, BRD recorded “Wife left him – affair – told him to leave 1/52 ago – found [out] about affair last night. Was at Peak Hill – supervisor”; “BOA unhappy 6/12. Can’t sleep/eat, dry retching. Went to work – can’t”. “BZA know. She needs time out!”
BRD referred the worker to BKK on 1 July 2020. He advised her that the worker had consulted him yesterday, “stressed regarding his wife asking him to leave the marital home one week ago. He has recently found out about a third person involved”.
The worker was “understandably” suffering significant stress, with severe insomnia and anxiety. BRD had prescribed Diazepam. The worker continued to be on Zoloft 100mg one mane.
BRD asked BKK to counsel the worker regarding his acute stress reaction, due to significant environmental issues. The worker wished he could repair his marriage, but his wife had no interest in reconciliation.
There was a telehealth consultation on 5 July 2020. Some of the entry is illegible, but there is reference to depression, and “sleeps OK with Diazepam”. The prescription was continued. It appears that the note reads “See BKK 4/7”, It is apparent from BKK records that the worker consulted her on 9 July 2020.
On 17 July 2020, BFM advised of the worker’s suicide.

Peak Hill Medical Centre

The records commence on 12 September 2016.
On 22 March 2017, Dr BYH recorded that the worker had received a needle stick injury. There are several more consultations related to this injury.
On 8 May 2018, Dr BYH recorded “binge drinking”. The worker was advised to stop alcohol.
The worker’s last attendance was on 12 April 2020, for a flu vaccination.

BKK – psychologist

BKK recorded on 9 July 2020 that the worker’s wife recently left, “a bombshell”. She had advised he had been distant and unavailable. His brother had committed suicide on
30 August 2017. He never spoke to anyone about it.
The worker was feeling distraught, lonely, and fearful. He was concerned if he could go home on weekends. He had spoken only briefly to a colleague about the problem.
The worker did not want to take Diazepam but continued with Zoloft. He was still able to speak to “BOA” (the applicant) but it eventually led to an argument. His alcohol use had increased, up to three to four drinks a night.
On 16 July 2020. BKK recorded that the worker appeared agitated and sad. He was tired, with dark circles.
The worker believed BOA was not being honest but was making it clear there was no chance of reconciliation. He was suspicious of a colleague who had been contacting her. He was angry but deliberately avoiding him.
The worker was looking for evidence of his “poor behaviour”, going over the past year, but believed they had a bright future.
They discussed “BPD’s” (BPD’s) death. The worker felt guilty he wasn’t able to prevent it. He was aware of the impact on him and his family so would never consider this himself. He was angry at BPD for not seeking help.
The worker had moved out of BOA’s parents’ and was renting a room from a colleague, “not ideal”. He had plans to see the girls every weekend.
BKK recommended the worker focus on himself and allow time for the situation to settle, so discussion would be more productive. He was to follow up in two weeks.

BXB – consultant psychiatrist

Dr BXB was qualified by the applicant and reported first on 3 September 2021.
BXB was provided with documents including Dr BRD’s clinical notes, the coroner’s brief of evidence, BOA’s statement, and the s 78 notice.
BXB noted the referral from BRD to BKK dated 8 May 2015.
WorkCover certificates of capacity had been issued, but the worker was certified fit for pre-injury duties on 1 April 2015.
BXB opined that employment appeared to have been a substantial contributing factor to the development of what appeared to be post-traumatic stress disorder. There were prominent mood disorders, also likely consistent with a major depressive disorder (MDD). He also noted alcohol misuse, which could potentially have been consistent with an alcohol misuse disorder.
A specific question related to how significant the workplace injury was in leading to marital breakdown. Noting the worker’s use of antidepressants dating back about a decade, previous treatment, and ongoing decline from about 2018, BXB opined that there was a confluence of issues in his personal health and alcohol use, caused likely by the cumulative exposure to trauma in the workplace, which led to a significant change in personality.
The gradual worsening over time of what was initially predominantly mood symptoms, evolving towards MDD with post-traumatic stress disorder and later alcohol use, led to personality changes, violence, frustration, and irritability. This led to the breakdown as described.
The end of the worker’s relationship within the month prior to his suicide and the suicide of a family member were relevant factors. However, BXB opined that he would not have had such a severe reaction, which led to him completing suicide, had it not been for his ongoing mental health difficulties, reduced frustration tolerance, and prominent depression, which had been present and requiring treatment since 2011. Furthermore, it was clearly apparent from BOA’s statement that his deterioration resulted in the breakdown of the marriage.
The evidence strongly suggested to BXB that the marriage breakdown was attributable to the worker’s work-related injuries, which had caused him difficulties for a number of years, with clear periods of marked fluctuation in symptoms, including in 2015 and 2017, also noted. The fact that he returned to work and had been working for some time was evidence of him trying to hide his difficulties from others, rather than a sign that he was not experiencing mental health difficulties.
Dr BXB’s impression was that the worker suffered from a chronic MDD, post-traumatic stress disorder, and possible episodic alcohol misuse disorder.
BXB provided a supplementary report dated 30 September 2022. He had been provided with the applicant’s further statements, and documents produced by the first respondent.
BXB opined that, as a result of cumulative exposure to trauma and difficulties in the workplace, the worker had developed post-traumatic stress disorder, MDD and alcohol misuse disorder. They are recognised psychiatric disorders.
BXB further opined that the worker’s employment was the main contributing factor to the development of his injury. He referred to the incidents in which dogs had eaten part of a man’s body and the decapitation of a woman in a motor vehicle accident, and the death of the student and her mother alone as sufficient to meet criteria A of post-traumatic stress disorder. He was confident there would be multiple further traumatic incidents. His previously stated opinion had not changed.
In Dr BXB’s opinion, the main contributing factor to the breakdown of the worker’s marriage was his declining mental state, associated behavioural disturbance, and alcoholism. His entire personality had changed as a result of his work-related mental health condition.
BXB found no evidence that any other factors contributed to the breakdown of his relationship. It was entirely the work-related condition that left to the ongoing deterioration of his relationship, culminating in his separation. Dr BXB’s opinion had not changed.
BXB reported that it is frequently observed that people suffering from post-traumatic stress disorder, as well as a depressive condition or alcoholism, do not report their symptoms. They refrain from seeking treatment because of a stoical nature or a desire not to bring about further issues.
BXB opined that the worker wished to maximise his potential employability. Showing concerns to others was likely to be acutely injurious to any potential progression. It is commonly known that people hide symptoms. They will not be readily apparent to people in the workplace, and not even family members or friends.

The notion of a “brave face” is commonly observed in people suffering the most severe psychiatric illness. Whilst many with illness report their symptoms and seek treatment, it is not unusual for someone severely unwell to minimise their symptoms, fail to seek help, and be considered by others not to have shown signs of illness. BXB noted the comments of the worker’s colleagues who had failed to observe symptoms of mental illness. This was by no means unusual.
BXB did not find it surprising that colleagues in a hierarchically structured organisation, where disclosing distress could lead to some negative outcome, did not observe signs of mental distress, while at the same time the worker’s wife held significant concerns about how his mental health had been deteriorating during the same periods.
BXB opined that, at the time of the suicide, due to his post-traumatic stress disorder, MDD and associated alcohol misuse disorder, the worker was so overborne that it was not an intentional act. In his experience, sufferers of severe mental illness, such as BCZ, will describe at times having little memory and no appreciation or foresight or lateral thinking around the time of the suicidal act, which occurs in a state of dissociation.
The worker did not make a suicidal gesture that was unlikely to be lethal. He did not prepare the situation so he would be found quickly. He did not seek help or reach out to others.
BXB did not believe this was an action planned in advance or regard it as an intentional act. He regarded the suicide as having arisen due to the worker being so overborne with distress as a result of his longstanding work-related psychiatric conditions.
BXB opined that the suicide was entirely attributable to the severe and work-related mental health condition that BCZ suffered, which, over time, evidently had taken its toll on, and caused the ending of, his relationship.

BWD – consultant forensic psychiatrist

BWD was qualified by the first respondent and reported first on 28 November 2022. He was provided with the applicant’s and Mrs BEU’s statements; the statements of the first respondent’s witnesses; the clinical records; and Dr BXD’s reports.
BWD noted that BRD had prescribed Diazepam in the month prior to the worker’s suicide, and BKK noted an escalation in alcohol consumption a week before. He opined that the toxicology results were critical in discussing contributing factors to BCZ’s suicide, as both alcohol and Diazepam have been implicated in an increased risk in disinhibition of violent behaviour, including self-harm.
There was a history of the worker suffering previous significant depressive symptoms. There were also work-related issues from July 2015, but the documents did not provide substantial information about them.
There was documentation that BCZ experienced significant anxiety after a needle stick injury in around February 2017. He had previously seen BKK. In 2017, his GP questioned the possibility of post-traumatic stress disorder, but there was no evidence of a formal diagnosis ever being made by a treating or independent professional.
Regarding the worker’s mental state at around the time of his suicide, there was documentation from BKK and Dr BRD.
There was no documentation of work-related stressors in Dr BRD’s referral or BKK’s notes. There was no documentation of distress related to re-experiencing phenomena of traumatic incidents experienced in the NSW Police, such as intrusive memories, nightmares, or flashbacks of fatalities. There was also no documentation of distress regarding operational matters with the worker’s role in the NSW Police.
BWD referred to the worker’s perception that there was a “third party” involved in the marital separation, and BOA’s evidence that he had expressed this belief, but she had not had an affair.
BWD also noted the applicant’s evidence about the worker’s excessive alcohol consumption, and the evidence from the GPs’ file of him consuming alcohol in a problematic pattern in 2018 and 2019.
BWD agreed with BXB that it was not uncommon for police officers to avoid treatment and discussion of their symptoms, for fear of impact on career progression. However, he opined this appeared to be less relevant for the worker, as he had sought treatment in the month before his suicide, and in 2015 and 2017, for work-related anxiety and depressive symptoms.
The worker discussed the factors concerning him with his treating practitioners in the week before his suicide, and they did not include symptoms of distress related to re-experiencing phenomena of traumatic incidents to which he was exposed in NSW Police.
BWD opined that the worker was suffering from clinically significant anxiety and depressive symptoms. Whether this fulfilled the criteria for MDD would depend on his alcohol consumption. If he were consuming it on a daily basis at a moderate to heavy level, then MDD could not be diagnosed, and the most appropriate diagnosis would be alcohol-induced depressive disorder.
BWD had “carefully considered” the possibility of post-traumatic stress disorder. He has set out the criteria for the diagnoses, and concluded that the worker met Criterion A (the 2017 needle stick injury alone would suffice); D; E; G; and was likely to have met F. He did not meet criteria B or C.
BWD concluded that there was inadequate evidence, particularly from BKK’s clinical notes the day before his suicide, that the worker was experiencing symptoms consistent with those criteria to conclude that he was suffering from symptoms satisfying criteria B and C.
BWD opined that the most significant health issues at the time of the worker’s death appear to have been distress regarding the breakdown of his marriage, including the belief that BOA had been having an affair; ruminations and unresolved grief regarding the suicide of his brother in 2017 that he had never discussed with anyone; and ongoing excessive alcohol consumption.
As BXB had concluded, it was possible the worker was suffering from longstanding post-traumatic stress disorder that contributed to marital issues at the time. It was possible that he continued to perform his normal duties whilst suffering from symptoms consistent with the diagnosis of post-traumatic stress disorder. It was also possible that he was not suffering from ongoing symptoms of post-traumatic stress disorder, consistent with the lack of discussion of important relevant symptoms by his treating professionals, and the marriage broke down for reasons external to BCZ’s work.
Based on the available documentation, BWD opined there appeared to be little independent evidence that BCZ was suffering from post-traumatic stress disorder in 2020. There was inadequate evidence to conclude he was suffering from ongoing post-traumatic stress disorder symptoms. Whether his excessive alcohol consumption was related to longstanding post-traumatic stress disorder was not clear. If it was not, it would also be a non-work-related contributing factor.
BWD opined that it was probable the worker was extremely distressed by the breakdown of the marital relationship and his belief that his wife had been having an affair. He was distressed with unresolved grief regarding the death of his brother. It was probable that alcohol consumption contributed to anxiety and depressive symptoms and likely disinhibition of suicidal behaviour, contributing to his death. Diazepam also might have been a significant factor increasing suicide risk.
BWD issued a supplementary report dated 3 February 2023, having been provided with BMC’s statement dated 18 January 2023. He was asked whether it caused him to change his opinion and conclusion.
BWD noted that the statement raised the possibility that the worker experienced nightmares at times. It was not clear if he was experiencing them in the period before his suicide. BWD therefore maintained his previous opinion. There was no doubt the worker had been exposed to numerous incidents fulfilling criterion A for the diagnosis of post-traumatic stress disorder.
BMC’s evidence was consistent with previous documentation indicating that BCZ was distressed before his suicide and did not alter Dr BWD’s opinion.

SUBMISSIONS

The submissions have been recorded, and a transcript is available. I will therefore refer to them only briefly.

Applicant

The applicant referred to the traumatic events of which she had given evidence. As it is obvious that the worker is no longer here to give evidence, and didn’t keep a diary or journal, I am required to receive evidence from the family and consider it in that context. The applicant submitted that the worker had ongoing nightmares.
The applicant submitted that, as is evidenced by the report of her independent medical examiner, there is often unwillingness of people suffering from post-traumatic stress disorder to disclose their symptoms. One reason is a “brave face mechanism”, and the other is a police officer in a rural area knows that any display of weakness or expression of suffering symptoms might result in being removed from duties, and ultimately from his career and ability to provide for his family.
The applicant submitted that it is incontrovertible that the worker lodged a number of psychological injury claims on the respondent, and they were accepted. The first respondent is in no position to deny a psychological injury suffered in the course of employment, and it only put in issue the diagnosis of post-traumatic stress disorder. If I find there were other psychological injuries, from which the death resulted, I would be able to find for her in any event.
The applicant submitted, therefore, that while post-traumatic stress disorder was the proper diagnosis, it was not necessary to establish that. She then referred to her evidence that the worker first began to exhibit anger issues in about 2009 or 2010, which they both believed were work-related. She submitted this became anger and depression, the depression give way to alcohol use, which gave way to cynicism and paranoia.
The applicant conceded these were the observations of a lay witness, and not the recollections of a doctor, but she submitted they were significant, and her lived experience.
The applicant submitted the worker kept all this inside. It would be to miss the point entirely of the condition he was suffering to hold against him that these symptoms do not appear traced through the medical records.
The applicant referred to her final statement. She submitted there was the commencement of Zoloft, which was increased in 2015, when the worker saw BKK for the second time, an accepted claim. There was depression that was accepted as work-related and a need for effectively permanent antidepressant treatment.
The applicant conceded there was no formal diagnosis of post-traumatic stress disorder, but there are her observations of the worker descending into a nightmarish, poor sleeping, irritable alcoholic over a period of eight years.
There are two additional matters on which the applicant anticipated the first respondent would rely. The first was the passing of BPD. She conceded that this was tremendously upsetting but submitted that the evidence is that the worker was already so low and irritable that the extra grief didn’t change that outlook.
The applicant referred to her evidence about the situation by March 2018. She submitted the worker was a person in serious decline as a result of nightmares relating to work incidents. That is what the evidence disclosed, and there is nothing to suggest otherwise.
The applicant then referred to her evidence about the deterioration of the marital relationship and submitted that was the next step in the causal chain. This flowed into her asking the worker to move out.
The applicant submitted that BEU’s evidence corroborated what the worker had been telling her and his family about truly terrible things that occurred in the course of his employment. There was reference to the needle stick exposure.
The applicant referred to BEU’s opinion that the worker’s behaviour led to the breakdown of the relationship. She submitted there had been no strict objection to the evidence, and I would give it appropriate weight. They are speculative opinions, but nevertheless obviously clearly held, given the nature of the case, and who has given them.
The applicant submitted that BMC has given evidence about her recollections as a child and a teenager of her father’s conduct, and at 19, she is able to put events in context and understand them relative to events that transpired after. They were nine and 10 years ago, right in the part of the problems referred to in the applicant’s evidence.
While the applicant’s evidence is that the effect of BPD’s death didn’t change the baseline, she conceded that wasn’t BMC’s recollection. She submitted that whatever change BMC observed dissipated over about a year.
The applicant referred to BMC’s evidence of a conversation with her in which she said the worker should talk to someone about his anger. She submitted this was a 15-year-old observing matters of grave seriousness about her father. She also referred to BMC’s evidence about the worker having nightmares.
The applicant submitted that her case was fairly straightforward. There was prolonged exposure to trauma, the onset of post-traumatic stress disorder, the onset of depression, and the onset of alcohol abuse disorder. That seems fairly apparent from the lay evidence and the medical evidence. The consequence was a fracturing of the marital relationship, and the request that the worker move out of his home.
The applicant submitted there was then the onset of a paranoid sense that there was some other nefarious cause for the marital breakup, and not the post-traumatic stress disorder that had been essentially floridly symptomatic for years, and untreated, along with severe untreated alcohol abuse. The final records of BKK, taken out of context, appear to suggest the precipitating factor was a sense that the applicant had had an affair.
The applicant submitted that this is denied in very clear and unequivocal terms; and the first respondent dare not, and does not, put on any evidence otherwise. She submitted I must accept it is simply not true. It is what the worker believed, but it didn’t happen, and it is the downstream result of the post-traumatic stress disorder injury.
The applicant referred to Kooragang Cement Pty Ltd v Bates[1] (Kooragang). She submitted its facts demonstrate the degree of remoteness that the legislation and authorities permit. She submitted that, having heard her evidence and that of BMC, I would accept that there was a very clear and unbroken chain of complaint and causation from the initial receipt of injury, on the date of which we are somewhat bound to speculate, because there is no formal diagnosis of post-traumatic stress disorder prior to death. That does not mean there was no post-traumatic stress disorder, and she submitted it would be contrary to what the evidence, at least for her, suggests.
[1] (1994) 35 NSWLR 452 (Kooragang).
The applicant submitted that both Drs BXB and BWD laboured under the same difficulties, as they were not able to talk to the worker and were bound by the evidence put before them, but BXB talked about the several traumas and the nightmares.
The applicant referred to Dr BXB evidence that the worker would not have had such a severe reaction to the relationship breakdown had it not been for his ongoing mental health difficulties, which had been present and requiring treatment since approximately 2011. It was clearly apparent that this deterioration resulted in the breakdown of their marriage.
The applicant submitted that Dr BXB expert opinion is that the worker’s suicidal impulse did not occur in isolation, but against the history he took and that I have heard from the lay witnesses. BXB opined that employment with the first respondent was the main contributing factor to the development of the worker’s psychiatric injury.
The applicant referred to the evidence of the worker’s colleagues, some of whom only knew him for a couple of years, that he seemed like a pretty happy, regular guy, and submitted I may accept that. There is nothing to suggest any of the family could give evidence about how he appeared when he was at work. When he was at home, he presented in a particular way.
The applicant submitted that in part the worker’s presentation was because he was throwing himself into his work, and perhaps at work he did present as carefree and happy, but that was simply not what was going on.
The applicant relied on Dr BXB’s evidence that the worker’s suicide was not an intentional act. She submitted that “intentional act” was no proper opposition to the case.
The applicant then referred to Dr BWD’s evidence. She submitted he disregarded the prospect of post-traumatic stress disorder and focused his opinion on what occurred right at the tail end. She submitted the focus was too narrow, but he also did not properly accept evidence that he ought to have accepted.
The applicant submitted that BWD took issue with two criteria of post-traumatic stress disorder. She submitted that, as regards criteria B, the worker was having nightmares, if I accept her and BMC’s evidence.
As regards avoidance of trauma-related stimuli, the applicant submitted that if I accepted her evidence, and that of BMC and BEU, I would conclude that the worker had trauma-related thoughts, feelings, and external reminders.
The applicant submitted I would not be persuaded by Dr BWD’s evidence. He had elected to accept the evidence that matched all but two of the criteria, and his explanation is razor thin. She submitted that BWD still “gets it wrong” in his second report. After reading BMC’s evidence, he wrote that there was no documentation of nightmares. He had not changed his opinion, but just reproduced his earlier report.
The applicant referred to Dr BWD’s statement that it was not clear if the worker was experiencing nightmares in the period before his suicide. She submitted that her evidence was that they started in about 2012. They started at the beginning and persisted throughout. They got worse and were about traumatic incidents from work.
The applicant submitted it was improbable in the extreme that going on 18 years since the worker started work and a decade since he first started having symptoms of anger, nightmares and flashbacks, they suddenly stopped for the two or three weeks before he committed suicide. It is not good reasoning, and she submitted I would reject it.
Regarding BPD, BWD did not change his opinion. The applicant submitted that his opinion “just doesn’t pass muster”, that I would set it aside and accept Dr BXB’s opinion. She submitted that, recalling the principles of the unbroken chain of causation, I would be well-persuaded that the worker’s death was caused by the psychiatric injury, in the nature of post-traumatic stress disorder, MDD and alcohol misuse disorder that went undiagnosed as a result of him not talking to anyone about it. There is no evidence other than that.
In reply to the first respondent, the applicant submitted that everything I had heard presumed two conclusions, first that I would not find post-traumatic stress disorder, and second that there was effectively a novus actus [interveniens] (novus actus), or possibly two. She submitted there was a conflation of a few legal principles.
The applicant submitted the worker was not prone to going to the doctor or talking about his problems. That is what leaks from the GPs’ records. There are very few entries, and I was asked to draw a Jones v Dunkel[2] inference from the absence of evidence from those doctors.
[2] [1959] HCA 8; (1959) 101 CLR 298.
The applicant submitted I would not be taken by that submission, first because that is not a proper inference to draw in view of, for example, Mason v Demasi;[3] and more importantly, it is on all fours with the case she brought that nothing was said to BRD and BUK. The family is prepared to concede that is what the evidence suggested. The applicant and BMC said they couldn’t get the worker to see the doctor, so we would not expect to find anything in those records and would be drawing an inference against what the evidence should be used for in the applicant’s case.
[3] [2009] NSWCA 227.

The symptoms from which the worker had suffered for a considerable time had not ceased to exist, either before BPD’s death, or before the breakdown of his marriage. Neither was a novus actus.
As regards the breakdown of the marriage, the applicant asked the worker to leave their home, and he believed that a third party was involved. She categorically denied that was the case, attributing his belief to them having drifted apart because of his post-traumatic stress disorder, and his paranoia.
The notes the worker left did not explicitly refer to his work. He did acknowledge that he had taken away the applicant’s love by his actions; in the process of fixing things for everyone else, he had broken himself and his whole reason for being (which I infer from the context was his family); the security he thought he had was slowly leaking away; and he had a “flat battery”. He also referred to “looking in” and “looking out”, “perfect family”.
This suggests to me that the worker’s behaviour towards his family was not normal, and he knew that, but in the notes he left for them he did not specifically attribute that behaviour to his work. As the first respondent submitted, “treading water” for three years would date from about the time of his brother’s suicide.
The worker’s colleagues did not notice anything unusual in his behaviour, except at the time of the breakdown of his marriage, perhaps because until then, he projected the image of a “perfect family”.
It is trite, of course, that I do not have the benefit of evidence from the worker, apart from notes he wrote when he must have been in extreme distress. I do, however, have the evidence of his widow, his elder and now adult daughter, and his mother-in-law.
The evidence of the applicant is largely corroborated by BMC, and I do not see any reason not to accept their evidence. The evidence of BEU is consistent with it, although I give it less weight, as she obviously saw less of the worker than did his own family. I have given no weight to her opinion that the worker’s behaviour from work led to the marriage breakdown. I do not accept she was in a position to know whether that was in fact the case.
The picture that emerges from the evidence of BOA and BMC is of a husband and father in decline probably from 2012, although BOA said he began to exhibit anger issues in about 2009/2010, but at least from about 2014, when the family holiday was ruined by his anger and attitude. BMC recalled the holiday, which she described as a “waste of time”.
The worker’s condition worsened in 2015, when he had interpersonal issues with a superior. The applicant stated that he talked about it non-stop. He was diagnosed with anxiety and mild depression, and his prescription of Zoloft, which he was already taking, was increased. He was also referred to BKK.
The first respondent submitted that, notwithstanding the culture of silence, the worker did make claims for psychological injury in 2015 and 2017. However, Dr BRD’s records show that an “Inspector BUK” had told BCZ in 2015 to put that matter down as WorkCover. The worker’s superior officer/s were obviously aware of his situation. In a hierarchical institution such as the Police Force, I infer that if an Inspector told the worker to do something, it is likely that he would do it.
As regards the needle stick injury in 2017, that was the subject of an Incident Reporting Form on 9 February 2017.
The worker reported that he had sustained a needle stick injury to his wrist whilst restraining a mental health “consumer” who was being injected by a nurse with a sedative drug. The needle had contacted his right forearm/wrist, causing blood to be drawn. There was possible cross-contamination.
The worker was issued with a WorkCover certificate of capacity (COC) on 10 February 2017 by Dr [redacted] (?) at Parkes Hospital. The COC recorded that pathology was collected, the worker was counselled, and referred to his GP for follow up “blood”. He was certified fit for his pre-injury duties.
This injury had therefore been reported, and was the subject of a claim for compensation, before the worker began to experience psychological symptoms. He was then diagnosed with anxiety, and the applicant’s evidence is that he was having nightmares. He told her about them, and they were usually related to work.
The applicant gave evidence that, while the worker was again referred to BKK, she does not believe he consulted her. BOA encouraged him to do so, but he did not think it was necessary, or that she could help him.
I do not believe the worker’s reporting of the injuries in 2015 and 2017 meant that he would necessarily feel that he could report the symptoms his family noticed in the period leading up to his death, and in fact well before that. In one case, a superior officer told him to claim workers compensation, and in the other, a claim had already been made when he developed psychological symptoms. Neither appeared to present the danger of ending his career that a diagnosis of post-traumatic stress disorder may have done.
There is no record of the worker seeking medical attention at about the time of his brother’s death, which perhaps supports the applicant’s submission that he was not a person who was prone to going to the doctor.
BOA did not notice any change in the worker’s demeanour after his brother’s death, but BMC did. Her evidence is that he was more closed off and did not want to talk about it. However, by about a year later, he was “back to his usual angry self”.
BMC was old enough to notice that the worker appeared to drink to excess, and she recalled the incident after he “wrote himself off” and fell, about which the applicant gave evidence.
The applicant and BMC had discussed the worker’s behaviour, and BMC gave evidence of finding him sobbing, and unable to stop crying, when she was about 16, which would place this incident in about 2020.
BMC corroborated the applicant’s evidence about her and the worker sleeping in separate beds, which each said dated from about a year before his death. The medical evidence suggests that the worker had sleep apnoea. However, the applicant said he told her about nightmares, and BMC could hear the nightmares, although not what they were about.
It is not necessary that the worker’s employment be the sole cause of his condition. Roche DP discussed the relevant case law in Murphy v Allity Management Services Pty Ltd.[5] That case happened to involve a dispute about the reasonable necessity of medical treatment, but it and the cases discussed therein have equal application to “injury”.
[5] [2015] NSWWCCPD 49
Roche DP said, at [57]-[58]:
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd(1973) 47 ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters(1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd(1979) 53 WCR 167; ACQ Pty Ltd v Cook[2009] HCA 28 at [25] and [27]; [2009] HCA 28; 237 CLR 656). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[2014] NSWWCCPD 18 at [40]–[55]). That is, she has to establish that the injury materiBMC contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd(1996) 12 NSWCCR 716).”
Having said that I accept the applicant’s and BMC’s evidence of what they observed of the worker’s behaviour in the years before his death, it is necessary that I examine the qualified medical evidence.
BXB based his opinion in part on BOA’s statement. He did not ignore the significance of the death of the worker’s brother and the end of his relationship with the applicant. He said they were relevant matters. However, he believed the marriage breakdown was attributable to the worker’s injuries, which had caused him difficulties for several years, and he would not have had such a severe reaction to the breakdown, resulting in his suicide, had it not been for his mental health difficulties, which had been present since 2011.
BXB also believed the worker met the criteria for a diagnosis of post-traumatic stress disorder, as well as MDD and possible alcohol misuse disorder. It is notable that, according to the applicant and BMC’s evidence, the worker had a long history of abusing alcohol.
BWD accepted that it was possible the worker suffered from longstanding post-traumatic stress disorder, but it was also possible that he did not. He opined that there was inadequate evidence to conclude that BCZ was suffering from ongoing post-traumatic stress disorder symptoms. He nonetheless accepted that the worker was suffering from clinically significant anxiety and depressive symptoms.
BWD did not change his opinion when he was provided with BMC’s statement. He merely stated it was not clear that the worker was having nightmares in the period before his suicide. As the applicant submitted, it was unlikely that they suddenly stopped in the period before he committed suicide.
I accept the applicant’s submission that BWD viewed the matter through a prism that was too narrow. As I have said, the applicant’s and BMC’s evidence shows that the worker had been struggling with his mental health for many years. BWD placed considerable weight on the clinical records, but one conclusion that may be taken from them is that the worker was consistently prescribed medication to treat his psychological conditions.
I find Dr BXB’s evidence persuasive. While both he and BWD were obviously constrained by being unable to examine the worker, BXB has carefully considered the available evidence, made appropriate concessions, and made diagnoses, including post-traumatic stress disorder, that are supported by the evidence.
The applicant relied on Kooragang, and her counsel referred to the facts of that case, which I do not intend to repeat here. However, it is useful to restate what Kirby P, as he then was, (Sheller and Powell JJA agreeing) said in Kooragang.
Kirby P noted that, since English authority in 1909:
“…it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
Kirby P observed that a point will sometimes be reached;
“where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter will do well to return, as McHugh JA advised, to the statutory formula and ask the question whether the disputed injury or death ‘resulted from’ the work injury which is impugned.”
I do not find that either BPD’s death or the breakdown of the worker’s and the applicant’s marriage “snapped” the causal chain. I accept the evidence of the applicant and BXB that the deterioration of the worker’s condition resulted in her decision to end the marriage, after which the worker took his life.
I am therefore satisfied that the death of the worker resulted from injury arising out of or in the course of his employment with the first respondent.

Intentional self-inflicted injury

BXB has opined that, at the time of his suicide, due to post-traumatic stress disorder, MDD and associated alcohol misuse disorder, the worker was so overborne that it was not an intentional act. He has explained his reasons for coming to this conclusion.
The use of the word “overborne” is a refence to the decision in Holdlen Pty Ltd v Walsh[6].
[6] [2000] NSWCA 87; (2000) 19 NSWCCR 629 (Holdlen).
In Holdlen, Giles JA concluded that an intentional act may be part of the chain of causation. The will of the deceased may be so overborne by his or her circumstances that suicide should not be viewed as an intentional act, even in the absence of insanity. This question could be dealt with without necessarily requiring expert medical evidence.
Holdlen was applied in Simeon Wines Ltd t/as Buronga Hill Winery v Bobos,[7] in which the Court of Appeal refused the employer leave to appeal.
[7] [2004] NSWCA 342.
BWD has not provided an opinion on this issue. However, he has referred to the possible disinhibiting effect of alcohol and Diazepam.
The first respondent submitted there was an element of intent in the worker arranging his affairs, and I accept that he did try to provide the applicant with guidance regarding their finances. At the same time, he expressed the hope that he could get back to the “Boogie” he had been, which suggests that he may not have formed the final intention to take his life.
I accept Dr BXB’s evidence, as I have in respect of causation, that at the time he took his life, the worker’s will was so overborne that it was not an intentional act, and I so find.

Apportionment

The applicant and the second and third respondents have agreed on a proposed apportionment of the lump sum benefit, with which I was provided during the hearing.
I am satisfied that the applicant was partly dependent for support on the worker. At the date of his death, both the second and third respondents were minors. They were accordingly legally totally dependent on him for support.
BMC and BLD continue to reside with BOA, and it is obvious that any part of the lump sum benefit that is apportioned to her will also benefit them. BMC is now 19 and BLD is 16. They are both full time students.
The proposed apportionment of which I was advised is:
·        BOA: 66.67% = $551,627.58
·        BLD: 21% = $173,736.62
·        BMC: 12.33% = $102,035.80
I note that 21% of the lump sum benefit of $827,400 is $173,754, and not $173,736.62; and 12.33% of the lump sum benefit is $102,018.42, and not $102,035.80. I observed during the hearing that there seemed to be some discrepancy in the calculations.
However, the monetary amounts proposed total $827,400, and the discrepancies are minor. I assume the parties have agreed on the amounts, and the proposed apportionment appears appropriate. I will give the parties liberty to apply in the event this requires any adjustment.
The lump sums apportioned to BOA and BMC will be payable to them, pursuant to
s 85A(1)(a) of the 1987 Act.
The lump sum apportioned to BLD is to be paid to the NSW Trustee and Guardian, pursuant to s 85(1)(a) of the 1987 Act, to be held on trust for her until she turns 18. She is entitled to payment of the fees associated with investing or otherwise managing the lump sum, pursuant to s 25(1A) of the Act.

Weekly benefits

Both BMC and BLD are full time students. They are therefore entitled to payment of weekly benefits, pursuant to s 25(1)(b)(i) and (ii) of the 1987 Act, from
18 July 2020 to date and continuing. Pursuant to s 31(1)(a) of the Act, those payments are to be made to BOA.

Funeral expenses

There was no claim in the Application for funeral expenses, and the applicant sought at the hearing to amend it to make such a claim.
The first respondent sought and obtained instructions during the hearing to consent to the amendment. The Application was therefore amended to claim funeral expenses pursuant to
s 26 of the 1987 Act.
It follows from my findings that the first respondent is to pay funeral expenses, pursuant to
s 26 of the 1987 Act.

Interest

Section 109 of the 1998 Act provides:
“(1) In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
(2) Interest cannot be ordered under this section--
(a) on any compensation payable under Division 4 of Part 3 of the 1987 Act, or
(b) on any compensation payable under this Act for any period before a claim for the compensation was duly made, or
(c) on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.
(3) This section does not--
(a) authorise the giving of interest upon interest, or
(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.”
The power to award interest is discretionary and may apply to some or all the compensation payable, for the entire period, from the date of the claim to the date of the order, or for a lesser period. The rate of interest is also a discretionary matter. However, while the discretion is wide, regard must be held to the facts of the case.
In Haidary v Wandella Pet Foods Pty Ltd,[8] Deputy President Fleming said:
“The award of interest by the Commission, pursuant to section 109 of the 1998 Act is discretionary. Mr Haidary will only be entitled to interest, if awarded, on those amounts of his weekly entitlement that were unpaid, and only from the date that his claim ‘was duly made’. The likely amount of interest that would be due on these sums is small, relative to the whole of his claim, but nonetheless they may form part of Mr Haidary’s entitlement. The purpose of ordering interest on an award is to compensate the worker for the loss of his or her income, not to penalise the employer (Virag v James N Kirby t/as Betts Electric Motors (1990) 6 NSWCCR; Healey v McPherson Binding Pty Ltd (1989) 5 NSWCCR 139).”
[8] [2005] NSWWCCPD 9.
Section 109(2)(b) of the 1998 Act provides that interest cannot be ordered for any period before a claim was duly made.
President Keating said in Kaurv Thales Underwater Systems Pty Limited:[9]
“Section 109(2)(b) of the 1998 Act prohibits interest on any award of compensation payable under the Act for any period before a claim for compensation on behalf of the appellants was duly made. I accept the submission that the claim for compensation on behalf of the appellants was not duly made until the day of the arbitration. I therefore accept Thales’s submission that, as at the arbitration, the appellants could not be entitled to interest pursuant to s 109 of the 1998 Act.”
[9] [2001] NSWWCCPD 6 (Kaur).
“Duly made” has been held to mean “fully particularised”. It was applied in Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited [10] in which Arbitrator Isaksen, as he then was, referred to the decision of Arbitrator Wynyard, as he then was, in Shanika Cooper v G & W Mudge Concreting Pty Ltd & others[11] and his own decision in Lavelle v David Paul Brown & others.[12]
[10] [2020] NSWWCC 36.
[11] WCC6411/18.
[12] WCC 533/19.
I do not accept the applicant’s submission that the claim was duly made when the first respondent received the first notice that a claim for compensation for the worker’s death was being made. There is in any event no evidence of when that occurred. The applicant conceded that she ran against the authorities in making this submission, and Kaur is clear authority to the contrary.
I accept the first respondent’s submission that the claim was “duly made” when the Application was filed, when the applicant provided sufficient evidence about her dependency and that of the second and third respondents.
As regards the rate of interest, in accordance with several recent determinations of the Commission, I determine that the appropriate rate of interest is 2% above the cash rate as published from time to time by the Reserve Bank of Australia.

Interest is payable on both the lump sum benefit and the weekly benefits.

Costs

As the worker was an exempt worker, and the applicant having succeeded in her claim, she is entitled to an award of costs. The second and third respondents are also entitled to an award of costs.
The applicant sought an increase in her costs, at the maximum rate, due to the complexity of the matter.
In my view, an increase of 30% for complexity is appropriate for all parties. The matter required consideration of considerable lay and medical evidence, there were difficult issues of causation, and the first respondent maintained that the worker’s death was due to an intentional self-inflicted injury.
I therefore certify that each party is entitled to an increase of 30% in respect of her or its costs.
The findings and orders are set out in the Certificate of Determination.

[2023] NSWPIC 161

14 April 2023