Hawkins v State of New South Wales - [2018] NSWWCCPD 21

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Hawkins v State of New South Wales [2018] NSWWCCPD 21
APPELLANT:	Samantha Hawkins
RESPONDENT:	State of New South Wales
INSURER:	Employers Mutual Limited as agent for the NSW Self Insurance Corporation (NSW Treasury Managed Fund No 2)
FILE NUMBER:	A1-3607/17
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	6 December 2017
DATE OF APPEAL DECISION:	28 May 2018
SUBJECT MATTER OF DECISION:	Psychological injury; lack of contemporaneous complaints to colleagues and treatment providers; adequacy of reasons; Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115, [64] applied.
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	McCabe Partners Lawyers
Respondent:	Bartier Perry
ORDERS MADE ON APPEAL:	1. The name of the respondent is amended to delete “(NSW Police Force)”. 2. The Arbitrator’s Certificate of Determination of 6 December 2017 is confirmed. 3. No order as to costs.

INTRODUCTION

Ms Hawkins was employed as a Police Officer by the State of New South Wales (NSW Police Force) from 30 August 2002 to 12 August 2011. As a Police Officer, she was exempt from the amendments to the Workers Compensation Act 1987 (the 1987 Act) made by the Workers Compensation Legislation Amendment Act 2012.
Ms Hawkins was attested as a Police Officer with the New South Wales Police Force. The proceedings have nominated the employer as “State of New South Wales (NSW Police Force)”. Section 5 of the Crown Proceedings Act 1998 provides that the correct name of the entity to be sued is “The State of New South Wales.” For the reasons explained in State of New South Wales v Bishop,[1] the correct legal identity of the respondent is theState of New South Wales and does not include “NSW Police Force.”The proceedings have been amended accordingly. However, for convenience, the respondent will be referred to throughout as “NSW Police Force”.
[1] [2014] NSWCA 354, [27]–[28].
She alleged psychological injury as result of “the nature and conditions of her employment” for the entire period of her employment. The psychological injury was alleged to be a disease injury (s 4(b) of the 1987 Act), substantially contributed to by a significant number of distressing and traumatic events.
She relied on the diagnoses of Post Traumatic Stress Disorder (PTSD), Chronic Major Depressive Disorder and Alcohol Abuse.
Ms Hawkins claimed weekly benefits, medical expenses and lump sum compensation pursuant to ss 66 and 67 of the 1987 Act.
The NSW Police Force denied Ms Hawkins was injured and that her employment was a substantial contributing factor to the injury, relying on ss 4 and 9A of the 1987 Act.
The dispute came to arbitration on 3 October 2017. The Commission issued a Certificate of Determination (COD) on 6 December 2017 together with a statement of the Arbitrator’s reasons,[2] entering an award in favour of the NSW Police Force.
[2] Hawkins v State of New South Wales (NSW Police Force) [2017] NSWWCC 291 (Reasons).

BACKGROUND

On 30 August 2002, Ms Hawkins graduated from the New South Wales Police Academy as a Probationary Constable. She ceased work on 12 August 2011 and was medically retired in October 2013. Ms Hawkins alleged that between 2002 and August 2011, she was exposed to a number of traumatic events, including:
(a)a train fatality involving a 16 year old girl who had suicided;
(b)having to convey the news of a young woman’s death to her parents;
(c)attending on a deceased person;
(d)a major train accident involving a young male who had suicided in 2005;
(e)on 1 August 2010, she was required to attend the home of a missing child (Keisha Abrahams (KA)) and interview the mother, as well as conduct a search of the house and local area;
(f)while working in the Exhibits Office, she was exposed to evidence relating to the investigation into the disappearance and death of KA.
Ms Hawkins contended that these events caused her to decompensate psychologically.
The NSW Police Force adduced evidence in statement form and in contemporaneous medical records to show that there was an absence of complaint by Ms Hawkins that the stressors had psychologically impacted her, until after she was arrested for driving under the influence of alcohol. Further, the extent of exposure to exhibits from the case of KA was limited and not as described by Ms Hawkins. The evidence also disclosed a history of significant interpersonal family conflict that culminated in admissions to psychiatric units in 2004 and from 2011.
There was no challenge that Ms Hawkins was exposed to the reported traumas, except for the extent of her exposure to the case of KA.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Ms Hawkins submits that the appeal cannot be decided on the papers. She makes no submission to that effect in the Amended Appeal Application Against Decision of Arbitrator (Amended Application). The only submission made in the initial Appeal Application Against Decision of Arbitrator (Appeal Application) was that Ms Hawkins was unable to obtain the advice of counsel with respect to her submissions until after the Christmas holiday period. Ms Hawkins sought leave to file supplementary submissions after counsel became available, said to be by the end of January 2018. The Amended Appeal with submissions was filed on 11 January 2018.
Ms Hawkins had the opportunity to file further submissions in reply to the Opposition by 26 March 2018. Ms Hawkins did not seek to file any further submissions, whether by way of reply or as supplementary submissions.
The NSW Police Force submits the appeal can be dealt with ‘on the papers’.
In my view, Ms Hawkins has had ample opportunity to provide submissions on this appeal.
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties made on appeal, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE LAY EVIDENCE

Statement of Ms Hawkins

Ms Hawkins provided three statements with respect to her claim, dated 26 September 2011,[3] 10 October 2014,[4] and 4 April 2017.[5]
[3] Reply to the Application to Resolve a Dispute (Reply), pp 131–153.
[4] Application to Resolve a Dispute (ARD), pp 99–110.
[5] ARD, pp 111–143.
In her statement dated 26 September 2011, Ms Hawkins described herself as only a social drinker prior to August 2010. She reported she had a network of friends, including some she went to school with.
Ms Hawkins said that she enjoyed general duties and it was not until 2010 that she started to think about past incidences that occurred and began to have flashbacks.
Ms Hawkins recalled a particular death within the first 18 months of duty. She recalled having to assist the government contractors to move the body which had a stench of alcohol. She showered for an hour afterwards and threw out her uniform. She cannot recall being emotionally affected but remembered the smell.
Ms Hawkins further recalled a train fatality involving a 16 year old girl. She remembered finding the girl’s severed foot, which she had to carry back to the body bag. Ms Hawkins returned home and scrubbed her arms in the shower. She said she was not offered counselling and did not confide in her family as she did not want them to know what she did at work.
Ms Hawkins also remembered a particular time about 12 months later when she had to convey the news to relatives of the death of a woman who was about the same age as her mother. When she arrived home, she gave her mother a hug.
Ms Hawkins said that in 2005 she had to attend another train fatality involving a man aged about 20. She alleged she was required to escort the passengers off the train and walk the tracks looking for body parts. Ms Hawkins said in the week following she was having dreams about that incident. Counselling was given where she spent about five minutes talking to the counsellor. She told the counsellor she was all right and did not mention the dreams.
Ms Hawkins referred to other incidences, including:
(a)attending the scene of a car accident where the driver had a hit a tree. She and her colleague could not retrieve him from the vehicle him and had to wait for an ambulance;
(b)an accident involving an elderly couple that resulted in the death of the woman. She was required to interview the very distressed husband, who had been driving;
(c)a collision between a van and a car in which the driver of the van was covered in blood and she assisted by holding him until the ambulance arrived;
(d)an accident involving a postal bike, where the rider suffered serious injuries, significant pain and ultimately was crippled for life. The driver of the other vehicle was found to be over the drink driving limit at the scene, but after some delay was taken to the police station and was by then under the limit, and
(e)an elderly couple were killed by street racing participants, following which Ms Hawkins expressed outbursts of anger with drivers who endangered themselves and others.
Ms Hawkins stated that after she was transferred to the Mount Druitt Highway Patrol (Mount Druitt), she was feeling okay, settled in and was accepted by her colleagues. She said after 1 August 2010, this situation changed.
On 1 August 2010, Ms Hawkins was called to attend a lady who had reported her child, KA, missing. She and another officer spoke to the mother and performed a search of the area which took all day, but they could not find anything.
Ms Hawkins said this occurred near where she lived and on her days off she would continue to look for her. The local people erected a shrine for KA, which upset and distressed Ms Hawkins each time she passed it. As a result, she said she suffered heightened symptoms of anxiety and depression, and escalating alcohol consumption. Ms Hawkins said she could not talk to anyone about it.
Ms Hawkins said that in April 2011, she had a big argument with her family in which it was alleged she threatened self-harm. She said the police came to her home and she was provided with counselling the next day. She blamed family issues rather than admitting she was psychologically impacted by the missing girl.
Ms Hawkins said that on 22 April 2011, she heard the news that KA’s body had been found and that it was prominent on television.
She was then examined by the Police Medical Officer, but did not disclose problems at work or her feelings. She also consulted a psychologist, Kerry Noonan, but did not disclose anything other than family issues.
She returned to work on restricted duties, but heard people talking about KA. Ms Hawkins described increasingly low mood and feelings of isolation.
Ms Hawkins stated that she was moved into the Exhibits Office and during that time the exhibits came in from the case of KA, which included the child’s toys. She said she would sit in the back cage of the office and cry. By this time, she was experiencing nightmares.
Ms Hawkins said that while intoxicated at home, she made plans to suicide but her dogs came and sat with her, so instead she called her mother. Her mother came but then called the Police and Ms Hawkins drove away in her car. She returned home shortly afterwards. The Police arrested her for driving under the influence of alcohol, but she became hysterical when the Police tried to administer a breath test at the Police Station. She was then admitted to hospital.
In her statement dated 10 October 2014, Ms Hawkins said that she had been admitted to St John of God Hospital on 17 July 2014 and remained there until 21 August 2014. She said she was treated for anxiety, depression and PTSD. She was prescribed medication for tremors, depression and sleeping difficulties.
Ms Hawkins denied having alcohol since her discharge, but continued to suffer with depression and anxiety when leaving the house. She stated that prior to her admission, she was using alcohol as a way of coping with her anxiety and depression.
Despite taking medication, she has nightmares and wakes with “night terrors”.
She stated she has symptoms of fatigue, lack of concentration and has low self-esteem. She said she is socially withdrawn, partly because nearly all her friends were Police Officers and they distanced themselves. She was unable to discuss things with her family, whereas before her injury she had contact with all her family. She said she avoids speaking to people and does not want to talk about her feelings. She described feelings of anxiety in crowds. Sometimes her mother would do her shopping, but she lacked motivation to cook and she had difficulty travelling. On some days, she stayed in her pyjamas. She was unable to form an intimate relationship.
Ms Hawkins stated she has physical symptoms of headaches, trembling and restlessness. She complained of neck and back symptoms related to tension as well as dry mouth, shortness of breath, teeth grinding and fluctuating weight.
She did not include any details in that statement of the alleged stressors relied on in these proceedings.
In her third statement, Ms Hawkins said that she commenced employment as a Probationary Constable on 30 August 2012 and was stationed at St Marys Local Area Command performing general, traffic and office duties. Prior to that time, she had not suffered any psychological or psychiatric symptoms.
Ms Hawkins repeated many of the stressors alleged in her first statement, including:
(a)the train fatality involving a 16 year old girl who had suicided;
(b)having to convey the news of a young woman’s death to her parents;
(c)attending on a deceased person;
(d)the major train accident involving a young male who had suicided in 2005;
(e)on 1 August 2010, she was required to attend the home of the missing child (KA) and interview the mother, as well as conduct a search of the house and local area, and
(f)while working in the Exhibits Office, she was exposed to evidence relating to the investigation into the disappearance and death of KA.
She stated that in 2004 or 2005, she was transferred to Highway Patrol duties at Mount Druitt.
She said that on or about 29 October 2004, she had learnt of her proposed transfer to Mount Druitt. Ms Hawkins said she usually did not drink more than three to four standard drinks per week, but she and her boyfriend “celebrated and had a fair bit to drink.”[6] They argued. Her boyfriend later told her he had found her on the bathroom floor with a cut to her wrist. She was taken to Nepean Hospital by ambulance.
[6] ARD, p 114, [18].
Ms Hawkins said that this was an isolated incident and that she and her boyfriend continued to co-habit thereafter. She stated that up until that point, she had no disciplinary problems at work or other problems. However, following the events of 29 October 2004, she was required to be assessed by Dr Anthony Samuels, psychiatrist, who assessed her as being able to return to full duties and handle firearms.
Ms Hawkins disclosed that in about January or February 2005, she became aware of her boyfriend’s violent behaviour and consulted a psychologist, Ms Diane Hanna. As I read Ms Hawkins’ statement, by June 2005 she was in a new relationship. She mentioned also that at that time, she was not allowed to take her gun home.
She said that by about 2006, the work-related stressors above caused her to commence drinking heavily, but she was functioning and attended work. She indicated that at about that time she began to have difficulties concentrating, and was having “flashbacks” of some of the above events. Ms Hawkins believed her resultant psychological problems affected her personal and family relationships and caused interpersonal conflict.
Ms Hawkins said that the NSW Police Force became aware of her excess alcohol consumption in 2004 and she was placed on a conduct management plan because of her attempt at self-harm and her failure to keep her firearm safe, which was discovered by police in the incident on 19 October 2004 to be under her bed. She also failed to attend a rostered shift and was given a warning in relation to unsatisfactory conduct.
In 2006, she was given counselling for inappropriate use of leave. She was again put on a conduct management plan as a result of having sent text messages to her ex-boyfriend’s new girlfriend.
Ms Hawkins complained that due to “drinking sessions” and escalating sleep problems with night terrors, she continued to take excessive sick leave. As a result, the NSW Police Force required sick leave certificates for all absences after 22 September 2009.
Ms Hawkins repeated the events relating to the case of KA that occurred on 1 August 2010 and following.
On 10 August 2010, Ms Hawkins was examined by Dr Naresh Verma, occupational physician, at the request of the NSW Police Force. Ms Hawkins stated that he found her fit for operational duties with no physical or psychological illness.
Ms Hawkins said that her symptoms and her interpersonal conflict with her family persisted throughout 2010 and 2011 and her alcohol consumption increased. On or about 4 April 2011 following an argument with her parents about their lack of support, her parents called the Police. She was again referred by the NSW Police Force to Dr Verma and also to Ms Kellie Meek, police psychologist on 12 April 2011.
Ms Hawkins stated that Dr Verma advised she was fit for restricted duties but should have appropriate treatment and return to see him in four months’ time. Ms Hawkins said she did not disclose her symptoms to Ms Meeks as she wanted to continue being a police officer.
Ms Hawkins was placed in the Exhibits Office.
Ms Hawkins stated that on 12 August 2011 she sent a text message to her mother threatening self-harm. Her mother came to her home and found a noose hanging from a post and a knife on the table. Her mother called the police and Ms Hawkins left in her car. On her return home, she was breathalysed and a blood alcohol content of 0.197 was recorded.
Ms Hawkins said that she was thereafter arrested and taken to the police station, where she became upset and hysterical when requested to undergo a breath test. She was taken to Blacktown Hospital where she was admitted to the mental health assessment unit. She was transferred to St John of God Hospital on 15 August 2011 and remained there until discharge on 30 August 2011.
Ms Hawkins stated that she saw her general practitioner (GP), Dr John Nguyen, on 1 September 2011 and complained to him about her symptoms and the trauma of being exposed to items in the Exhibits Office relating to the murder of KA. He advised her to continue with treatment at St John of God Hospital.
Ms Hawkins then described an event on 22 September 2011 when she went to her mother’s home in a distressed and drunken state. She argued with her sister and slapped her sister in the face. As a result, her sister and her mother took out an Apprehended Violence Order (AVO) against her. On 30 September 2011, she contacted her mother in breach of the AVO. Ms Hawkins felt alienated by her mother.
Ms Hawkins was referred to Dr Selwyn Smith, psychiatrist and consulted him on 11 October 2011. She stated that she told him about her traumatic experiences as a police officer. Ms Hawkins stated that there had been a build-up of stress over the years, but that the final breaking point was the disappearance of KA. She said her increasing alcohol consumption, used as a means to manage the pressure, compounded her problems. By the time she consulted Dr Smith, she was unable to cope with work, was suicidal and admitted to Bangarabee House at Blacktown Hospital following an overdose of tablets. Her symptoms persisted and she was admitted to St John of God Hospital on 8 November 2011, on two occasions in 2012, three times in 2013 and once again in 2014.

Ms Hawkins stated that she was required to attend court on 2 April 2012 in respect of the charge of driving under the influence of alcohol and the breach of the AVO. She reported that the judicial officer was sympathetic.
Throughout 2012 and 2013, she continued to seek treatment from Dr Nguyen, Dr Smith and a psychologist, Ms Nicole Sweeney. Her GP referred her to Dr Danielle Florida, psychiatrist, in September 2013 who she consulted on a number of occasions in 2014 and again in 2015. She also reported that the NSW Police Force arranged for her to be examined by Dr Adam Martin, forensic psychiatrist, on 7 March 2012 and Dr Graham Vickery, psychiatrist, in February 2013.
Ms Hawkins stated she did not report her issues earlier to the NSW Police Force because psychological issues were not accepted. She stated that “[t]he Police Service did not provide any real counselling or support services for me and didn’t accept mental or emotional issues.” She said “[t]he attitude of the NSW Police Force was ‘if you can’t deal with it, then don’t do it.’”[7]
[7] ARD, p 18, [94] and [95].

Statement of Elizabeth Hawkins

Included in the ARD was a document said be a statement of Ms Elizabeth Hawkins, Ms Hawkins’ mother. To avoid confusion, I will refer to Ms Elizabeth Hawkins as Ms Hawkins’ mother. The document was unsigned and undated, but it appears no objection was taken to the document being admitted into evidence.
Ms Hawkins’ mother described her daughter’s demeanour prior to the onset of her psychological condition as a bright, confident and outgoing girl. She was socially outgoing and interactive. She was a “straight A’ student and as the eldest of five children, often took on responsibilities of the house and took care of her younger siblings.
Ms Hawkins’ mother recalled that when her daughter was about 19 years old, she came home visibly upset about seeing a dead body in the course of her work, and remained upset for several days. On another occasion, soon after she commenced with the NSW Police Force, her daughter came home crying and distressed at the death of a woman who was the same age as Ms Hawkins’ mother. For a short period afterwards, she and her daughter were very close and her daughter was “clingy”.
Ms Hawkins’ mother said that her daughter would come home and speak of traumatic incidences in the course of her work. She stated her daughter began to socialise less with friends and family. The mother said she began to notice her daughter was drinking alcohol at home instead of socialising and her drinking became excessive. It impacted the family and her siblings became alienated from her.
When Ms Hawkins moved out of the home, she moved to a house opposite her. During this time, Ms Hawkins would ring her and want to talk while drunk at two or three o’clock in the morning. Her drinking escalated to the point where Ms Hawkins would visit her mother’s house at two or three in the morning and if she was not let in, she would bang on the door and then sit and cry in the street.
Ms Hawkins’ mother related the occasion when Ms Hawkins slapped her sister and an AVO was taken out.
Ms Hawkins’ mother also recalled that her daughter had told her about the case involving KA and became consumed with it, even though she was not part of the investigative team. Ms Hawkins’ mother said that she felt the situation was made worse because KA had lived only two streets away and there were constant reminders of her disappearance, including news broadcasts.
Ms Hawkins’ mother stated that her daughter felt profoundly sad when she heard the news that KA had been murdered. She said that shortly afterwards, her daughter attended a very bad motor vehicle accident involving a truck on the M7 motorway where there were serious injuries. Her daughter was then transferred to the Exhibits Office.
Ms Hawkins’ mother also discussed various aspect of her daughter’s duties and feelings and made comment on them. Those comments are not repeated in this summary of her evidence.

Statement of Superintendent Wayne Cox

Superintendent Cox provided a statement dated 8 September 2011, which was included in an investigator’s report dated 26 September 2011. The investigator’s report also included statements from Chief Inspector Richard Le-Merton, Sergeant Gregory Donaldson and Sergeant Julie Underwood, extracted below.
Superintendent Cox stated in his capacity as Superintendent, Local Area Commander, he was transferred to Mount Druitt Local Area Command in 2010. He said that since then he had overall management of Ms Hawkins, although she did not report to him directly on a day to day basis.
He observed that Ms Hawkins presented as neat and tidy and was respectful of rank. He advised that according to the NSW Police Force records she performed her highway patrol duties to a satisfactory standard.
He said that from 2009, Ms Hawkins was consistently identified as taking excessive amounts of sick leave. From 22 September 2009, she was put on a “mandatory certificate requirement.” Her sick leave had begun to impact her performance.
Superintendent Cox said that Ms Hawkins’ colleagues reported that Ms Hawkins was engaging in activity on Facebook on the subject of her family dynamics regularly in the early hours of the morning and was consuming excessive alcohol at the time. These times coincided with her absence from work.
He stated that in August 2010, Ms Hawkins’ supervisor (Sergeant Donaldson) referred her to the Healthy Lifestyles Unit for assistance with management of alcohol. He also altered her shifts to accommodate her. Despite these initiatives, she continued to take excessive sick leave and report late to duties.
Superintendent Cox said on 4 April 2011, he was briefed in relation to the incident where Ms Hawkins threatened self-harm in a domestic incident with her parents. Following this incident, Ms Hawkins was removed from operational duties and sent to the Police Medical Officer for physical and psychological assessment. She was transferred to the Exhibits Office, where she was required to assist with a mandatory audit of exhibits. Her tardiness and excessive sick leave continued.
Superintendent Cox stated that because of her conduct, on 28 July 2011 Ms Hawkins was placed on a Conduct Management Plan for three months, but despite the plan, her conduct continued.
Superintendent Cox said that on 12 August 2011, he was briefed about the events involving Ms Hawkins threatening self-harm and driving under the influence of alcohol. He confirms she was arrested, became hysterical when asked to participate in a breath test at the police station and was then taken to Blacktown Hospital.
Superintendent Cox stated that he and Chief Inspector Le-Merton attended Ms Hawkins’ home on 15 August 2011 for the purpose of a welfare check, but also to serve her with a notice to suspend and confiscate her driver’s licence. He said at the meeting she did not make any complaint about work related matters or give any reason for her behaviour.
Superintendent Cox said that Ms Hawkins first made a claim for compensation on 1 September 2011 through the Injury Hotline. The date of injury was said to be 16 May 2011. The injury was reported as arising from her involvement with the case of KA and having to handle exhibits relating to that matter. Superintendent Cox stated that Ms Hawkins’ involvement with the matter was solely as a First Response Officer, limited to taking details and conducting a search. He said there were no signs visible to the eye of a crime scene at KA’s home.
In relation to the exhibits, Superintendent Cox advises that the inquiries revealed only one record that can be “readily found” of Ms Hawkins dealing with an exhibit in the KA case, and that was on 29 July 2011. She was required to scan out a number of exhibits to be taken for examination. He said she may also have been present when a further exhibit was scanned out on 2 August 2011.
Superintendent Cox stated that Ms Hawkins would not have been able to see or be directly exposed to those exhibits because they were contained in brown, non-transparent exhibit bags which are sealed to maintain their integrity.
Superintendent Cox provided a history of Ms Hawkins’ past conduct during her career as a police officer. The history included:
(a)two incidences of threatened self-harm in 2004 after alcohol consumption;
(b)a domestic dispute resulting in Ms Hawkins charged for not keeping her firearm safe;
(c)an AVO put in place in December 2004, continued in December 2005 and a personal violence order put in place in August 2006;
(d)her sick leave and other leave was exhausted in 2005, and
(e)complaints that were sustained during 2004 to 2006 of inappropriate use of leave, misconduct, failure to attend her rostered shift, inappropriate off duty conduct and failure to keep her firearm safe.
Superintendent Cox said he is not aware of Ms Hawkins having to deal with any traumatic incidences.

Statement of Chief Inspector Richard Le-Merton

Chief Inspector Le-Merton provided a statement dated 8 September 2011.
Chief Inspector Le-Merton held the position of Duty Officer within the Mount Druitt Local Area Command (Mount Druitt). He said that since Ms Hawkins was posted to Mount Druitt, her direct supervisors were Sergeant Donaldson and Sergeant Pilgrim.
Chief Inspector Le-Merton stated that in his former role of Duty Officer (Human Resources), he was aware that Ms Hawkins had sick leave issues, but that she was given “a fresh start” at Mount Druitt. He said that while her initial reports were positive, as time progressed her absences and lack of punctuality began to impact her performance and the efficiency of the unit.
He confirmed that he too was made aware of Ms Hawkins’ late night Facebook activity which coincided with her unplanned absences. He further confirms that Sergeant Donaldson implemented interventions to assist Ms Hawkins, but that they were to no avail.
Chief Inspector Le-Merton stated he was on duty on 3 April 2011 when it was reported to him that Ms Hawkins was involved in a domestic dispute at her home. Phone calls during the night eventuated in attendance by police at Ms Hawkins’ home and a Mental Health Crisis Team also attended to asses her mental health. Chief Inspector Le-Merton confirmed that Ms Hawkins was removed from operational duties and was placed in the Exhibits Office where he was generally able to oversee her work. He described her duties as administrative, requiring her to identify exhibits and items suitable for disposal.
Chief Inspector Le-Merton said Ms Hawkins was observed to perform her duties methodically and diligently but that issues in relation to her punctuality and sick leave started to appear again. Chief Inspector Le-Merton recalled that on 21 June 2011, Ms Hawkins rang him in the early hours of the morning to request leave because of an issue related to her pets. Leave was not approved but Ms Hawkins took two days off in any event, which was ultimately paid as recreation leave.
Chief Inspector Le-Merton confirms that on 28 July 2011, Ms Hawkins was placed on a Conduct Management Plan for three months, but her conduct did not improve.
Chief Inspector Le-Merton stated that he was aware of the “alcohol fuelled” domestic dispute involving Ms Hawkins on 12 August 2011, in which she recorded a high range blood alcohol content and the subsequent admission to hospital.
Chief Inspector Le-Merton further confirmed that he attended Ms Hawkins’ home on 15 August 2011 in the company of Superintendent Cox. The purpose of the visit was to provide a welfare check, but also to serve her with a notice suspending her driver’s licence and to confiscate her licence. He said she was offered EAP counselling, but was already under the care of a psychologist.
Chief Inspector Le-Merton said Ms Hawkins did not mention the KA case, having to handle the exhibits, or any work-related traumatic experiences. He felt that was strange, as in his view, it was the perfect opportunity to raise such issues. He noted her demeanour was calm and rational.
Chief Inspector Le-Merton noted the claim for injury made on 1 September 2011 and the injury date being alleged as 16 May 2011. He stated that Ms Hawkins was on a rostered day off that day. In relation to the allegation of having to handle the exhibits, Chief Inspector Le-Merton detailed Ms Hawkins’ duties on 29 July 2011 and 2 August 2011, which were the only dates identified that Ms Hawkins’ had to handle the exhibits. He described the exhibit packages, consistent with and expressed in very similar terms to that of Superintendent Cox.

Statement of Sergeant Gregory Donaldson

Sergeant Donaldson provided a statement dated 8 September 2011. Parts of the statement were objected to and excluded at the arbitration. Consequently, I have not included those parts in this summary of the evidence.
Sergeant Donaldson said he was the Mount Druitt Highway Patrol Supervisor and had been in that position since 2004. He was Ms Hawkins’ substantive supervisor. He stated that he was aware of her sick leave record, but told her if she worked hard he was happy to have her in the unit.
He stated that initially she was keen and demonstrated she was a good operator. He said the first issue that arose was a personal hygiene matter, which appeared to indicate she had not showered. After a female officer spoke to her this improved. He had been told of her Facebook activity at 1.00 and 2.00 am when she was rostered to start at 6 am. He said that she had absences from work that coincided with the activity, usually when rostered to morning shifts.
Sergeant Donaldson said he asked Ms Hawkins if there were any issues he could help her with. He said she told him that she was having trouble sleeping because of family issues and having “a few wines” to unwind. She did not disclose any work-related issues causing her to be upset or distressed.
Sergeant Donaldson stated that he worked very closely with Ms Hawkins to support her, changing her shift times to 8.00 am instead of 6.00 am and rostering her on afternoon shifts. This caused some discontent among the other officers.
He said her attendance became more unreliable. At times, because of her absence from duty (usually on Friday or Saturday evenings) he could not send out a car on the road because at night, a single officer could not go out alone. Sergeant Donaldson recollects that Ms Hawkins had 41 sick reports over an 18 month period, always supported by a medical certificate. She exhausted all her available leave.
Sergeant Donaldson stated that he became concerned for her well-being and organised a referral to the Police Medical Officer and a psychologist through the Healthy Lifestyles Unit. He said before the appointment he “spoke to [Ms Hawkins] quite candidly and told her this was her opportunity to get help.”[8] He encouraged her to be open and honest about her problems. He said unfortunately she did not disclose her drinking and family issues to the Police Medical Officer and consequently, she was certified fit for full duties.
[8] ARD, p 95, [14].
Sergeant Donaldson stated that he became aware of an incident in April 2010 when Ms Hawkins threatened self-harm after “an alcohol-fuelled domestic dispute”.[9] He said he was on leave at the time, but that he fully supported the decision to move her to the Exhibits Office.
[9] ARD, p 96, [16].
Sergeant Donaldson said that in July 2011, Ms Hawkins was placed on a Conduct Management Plan. He then had discussions with her where he raised concerns that he believed her to be an alcoholic, that her Sergeant’s course was at stake, and if she failed the Conduct Management Plan, she would have to say why she should remain in the NSW Police Force. He advised her she needed to be honest with him and her doctor and get help.
Sergeant Donaldson further confirmed he was aware of the details of the incident on 12 August 2011.
Sergeant Donaldson stated that he worked very closely with Ms Hawkins for the entire period from August 2010 (when KA went missing) and she did not express any upset or distress related to KA or any other work-related matter. He remarked that her attendance issues began well before any involvement in the KA case and her involvement in the case was limited to one day when she was required to attend to a brief search of the area. She was not involved in the investigation.

Statement of Sergeant Julie Underwood

Sergeant Underwood provided a statement dated 8 September 2011.
Sergeant Underwood stated that she first met Ms Hawkins in 2008 when she was transferred to Mount Druitt to take up duties as a Traffic Sergeant. Even though Ms Hawkins was in Highway Patrol, Sergeant Underwood said that her office was based in the same area. As they were the only females, they tended to gravitate towards each other and became friends. Her observation was that Ms Hawkins loved being a police officer and lived for her job. She appeared to do little else other than work and be involved with her family.
Sergeant Underwood stated that she spoke to Ms Hawkins as a friend about her absences from work and that she should seek medical treatment. Sergeant Underwood said she was aware that Ms Hawkins had an alcohol problem and that she had family issues. She was also aware that Ms Hawkins posted Facebook messages in the early hours of the morning when she was rostered on morning shift and would fail to attend work.
Sergeant Underwood stated that she and Ms Hawkins went away for a weekend in March 2011 and although they talked about work, she did not mention any issues at either Mount Druitt or St Marys. Sergeant Underwood said she asked Ms Hawkins if she suffered from depression and she denied it.
Sergeant Underwood recalled that the first major incident regarding Ms Hawkins was in early April 2011 involving the dispute with her family. Sergeant Underwood said Ms Hawkins denied making threats of suicide, but Sergeant Underwood said she had read them on Ms Hawkins’ phone and Ms Hawkins’ sister’s phone.
Sergeant Underwood said that after Ms Hawkins was placed in the Exhibits Office, her tardiness and absences did not improve.
Sergeant Underwood stated that in May 2001 [sic, 2011], Ms Hawkins cut ties with her on Facebook. She believed that Ms Hawkins did so because Sergeant Underwood had spoken to Superintendent Cox about her behaviour, which she did because she was concerned for Ms Hawkins’ welfare. Sergeant Underwood had no direct contact with Ms Hawkins thereafter. Sergeant Underwood did, however, become aware of the incident in August 2011, which Sergeant Underwood was aware was a week before the wedding of Ms Hawkins’ brother, and Ms Hawkins was upset that she had not been asked to take part.
Sergeant Underwood stated that Ms Hawkins mentioned the case of KA on the day the girl went missing, but never mentioned any upset or distress resulting from it.

Statement of Acting Inspector Brendan Gorman

Acting Inspector Gorman stated that in July 2011, he was appointed to the role of Acting Duty Officer. As part of his role, was he was given the Human Resources portfolio which included dealing with sick leave, annual leave, rostering, secondments and transfers.
Acting Inspector Gorman said that not long after he started the role he was advised of issues with Ms Hawkins’ sick leave absences and late attendance at work.
He recalled that on 15 July 2011, Ms Hawkins failed to attend for duty. She advised she had slept in and would attend work as soon as possible. He said she arrived at 9.30 am and he met with her. Acting Inspector Gorman stated that she appeared nonplussed and said she would not be late again.
Acting Inspector Gorman then reviewed Ms Hawkins’ past records, which revealed a history consistent with the history recorded above. He said that again, on 22 July 2011, she arrived five minutes late, which ordinarily would have been given some leeway but because of her history he gave her a final warning. The warning did not appear to bother her.

Acting Inspector Gorman said he spoke with both Inspector Cox and Sergeant Donaldson about the implementation of a Conduct Management Plan and her future supervision.
He also said that he discovered that the shift supervisors had been altering Ms Hawkins’ duty records.
Acting Inspector Gorman also recalled he and Ms Hawkins had been Facebook friends, even though they had otherwise little to do with each other. Acting Inspector Gorman said that on 25 July 2011, Ms Hawkins had posted a message on Facebook at about 11.30 pm. When he arrived at work the next day, he noticed Ms Hawkins had been rostered for duty on the evening of the 25 July but had called in sick with a chest infection at 9.30 pm.
On 26 July 2011, Acting Inspector Gorman and Sergeant Anthony McCann attended Ms Hawkins’ home to do a “welfare check”. Acting Inspector Gorman said that he questioned her about having to attend court that day and she told him that she was not required. He asked how she was and she said she was fine. Ms Hawkins told him she was going to the doctor but would only be off for one day. Acting Inspector Gorman said he considered her behaviour very guarded and felt Ms Hawkins was not telling the truth about her health.
Acting Inspector Gorman stated that he then implemented the Conduct Management Plan and that he told her it was not a punishment, but a means to address her attendance issues. All parties signed off on the plan.
Acting Inspector Gorman said he did not have any further dealing with Ms Hawkins until he was called to attend Ms Hawkins’ address on 12 August 2011. Ms Hawkins had left the area but returned in her car, so Acting Inspector Gorman spoke with her. He smelt a strong odour of alcohol and a breath test was given. During this time, Ms Hawkins expressed suicidal intent. She complained that her parents did not care, that she tried to get help but she had been forgotten about.
Acting Inspector Gorman stated that while he was taking Ms Hawkins to the police station, she spoke about the case of KA and having to drive past the memorial every day. He spoke to her about the range of services available to assist her.
Acting Inspector Gorman stated that he later became aware that Ms Hawkins was alleging distress from handling the exhibits related to the case of KA. He said she did not mention the alleged difficulty to him when she spoke to him on the night of 12 August 2011.

THE MEDICAL EVIDENCE

Ms Hawkins’ medical evidence

Dr Selwyn Smith

Ms Hawkins relied upon a number of reports from her treating psychiatrist, Dr Smith.
The first in time was a report dated 12 October 2011 directed to Ms Hawkins’ GP, Dr Nguyen.[10] Ms Hawkins had attended for her first consultation.
[10] ARD, pp 14–15.
Dr Smith said that he had reviewed her admission file from St John of God Hospital prior to the examination. He noted she had been admitted under the care of Dr Adesanya on 6 August 2011 and was discharged on 30 August 2011. Dr Smith also reviewed the factual investigator’s report dated 26 September 2011.
Dr Smith reported that against a background of exposure to significantly traumatic events, Ms Hawkins emotionally decompensated. He referred broadly to her being required to attend a number of suicides, murders and significant fatalities such as a major train accident at St Marys in 2005. She also had to deliver death messages to families. Dr Smith particularly referred to the case of KA as being “the major event” that caused Ms Hawkins’ decompensation. Dr Smith also referred to the subsequent transfer to the Exhibits Office “where she was exposed to a number of exhibits from KA’s house that caused her further emotional distress.”
Dr Smith reported that the significant impact of Ms Hawkins’ exposure caused an increase in consumption of alcohol, which compounded her problems. Changes in behaviour occurred, with an inability to cope with work and deterioration in her depressive state. She “re-experienced” suicidal ideation and was admitted to Bangarribee House.
Dr Smith recorded that prior to her employment as a Police Officer, there was no past history of psychiatric or psychological symptoms of significance and she did not use alcohol as a coping mechanism. She previously enjoyed a mostly stable family life. He took the history that Ms Hawkins was now living alone with no steady relationships and had family difficulties. He recorded Ms Hawkins “currently has ceased alcohol”.
Dr Smith reported that Ms Hawkins presented as agitated, tearful and depressed having been impacted by significant distressing events. He opined that her presentation met the diagnostic criteria for PTSD with a Major Depressive Episode and generalised anxiety. There was secondary alcohol dependence, at the time in remission. He found no competing causes for her condition. Dr Smith recommended re-admission to St John of God Hospital as soon as possible for treatment of her PTSD.
Dr Smith’s second report dated 20 December 2011[11] was directed to the Case Manager at Employers Mutual Ltd (EML) in response to questions raised by the Case Manager. Dr Smith’s opinion was that Ms Hawkins’ prospective to return to work was poor and return to work with NSW Police was not a realistic option.
[11] ARD, p 16.
He advised that since her admission to St John of God Hospital, she had significantly improved with improvement in family relationships and cessation of alcohol since August 2011. His view was that the interpersonal difficulties were a factor in her condition but did not significantly contribute to her incapacity.
On 23 August 2012, Dr Smith responded to further queries from the case manager at EML.[12] He had last seen Ms Hawkins on 8 August 2012. He reported that Mr Hawkins had been upgraded to be fit for suitable duties and was motivated to explore alternate work options. Dr Smith said there may be difficulties relating to a relapse in alcohol consumption, as well as a relapse in her psychiatric condition, if faced with distressing or interpersonal events. Dr Smith advised provision of a proactive rehabilitation counsellor. He confirmed his earlier diagnosis and described the treatment regime.
[12] ARD, p 17.
On 18 October 2012, Dr Smith provided a report to Ms Hawkins’ former lawyers.[13] In this report, he noted that Ms Hawkins’ condition had not significantly improved. Her symptoms included heightened levels of anxiety and agitation, difficulty concentrating, impaired memory and experiencing dissociative flashbacks of distressing events. He repeated the history of those events reported to him by Ms Hawkins and provided a synopsis of the past treatment.
[13] ARD, p 19.
Dr Smith said that Ms Hawkins had been unable to reintegrate into the workforce. He reported that Ms Hawkins had ceased consuming alcohol and was prescribed ongoing medication.
Dr Smith maintained his diagnosis of PTSD and Chronic Alcohol Dependence with Major Depression (partly in remission), causally related to Ms Hawkins’ employment with the NSW Police Force. He advised that Ms Hawkins had a significant psychiatric disability and that treatment had only partly ameliorated her condition. Her prognosis was poor.
Dr Smith assessed Ms Hawkins as suffering from a 19% Whole Person Impairment (WPI) as a result of her condition with no deduction for any previous or non-work related impairment. He noted Ms Hawkins’ “hurt on duty” claim had been accepted.
Two further short reports from Dr Smith directed to the EML Case Manager were in evidence and dated 8 January 2013 and 12 March 2013.[14] Those reports reiterated his earlier opinions. The second report noted that Ms Hawkins’ symptoms had significantly improved, but her prognosis remained guarded.
[14] ARD, pp 25–27.
In a further report dated 11 April 2013, Dr Smith again wrote to the EML case manager.[15] On this occasion, he had been provided with the report of Dr Vickery who had examined Ms Hawkins on EML’s behalf. He was also provided with the “interim factual investigation report” dated 14 September 2011 and a “supplementary factual investigation report” dated 29 September 2011. It seems probable that the investigation report dated 29 September 2011 is the same investigation report referred to by Dr Smith in his first report as being dated 26 September 2011.
[15] ARD, pp 28–33.
Dr Smith noted the history taken by Dr Vickery and Dr Vickery’s opinion that Ms Hawkins’ condition was not work-related. He also reviewed the statement evidence from each of the Police Officers recorded above.
Following a consideration of that evidence, together with the report dated 16 August 2010 from Dr Naresh Vermer (Police Medical Officer), as well as a report dated 5 September 2011, Dr Smith expressed the view that:
(a)he now questioned the diagnosis of PTSD given the “peripheral involvement” in the case of KA, which she had described to him as extensive;
(b)other significant work-related events could have potentially produced PTSD but those were not reported to him as being the substantial factor in her emotional decompensation;
(c)he agreed other factors significantly contributed to Ms Hawkins’ psychiatric presentation;
(d)he had expected that Ms Hawkins’ condition would have improved since she was away from the NSW Police Force, but this had not happened;
(e)he disagreed with Dr Vickery that Ms Hawkins did not suffer from a recognisable psychiatric disorder. He said she suffered significant pathology related to depression, family conflict and alcohol dependence;
(f)work, “in all probability was not the substantial contributing factor to her psychiatric disorder”, and
(g)contrary to Dr Vickery’s view, she had no capacity for work and needed further treatment.
Finally, Dr Smith wrote a further report dated 3 November 2015 at the request of Ms Hawkins’ legal representatives.[16] Dr Smith had the benefit of reports from Ms Hawkins’ treating practitioners, Dr Danielle Florida (psychiatrist) and Ms Nicole Sweeney (psychologist).
[16] ARD, pp 44–49.
In this report, Dr Smith provided extensive details of the work-related traumatic events Ms Hawkins had related to him, which were consistent with Ms Hawkins’ statement. He also included details of the domestic incidences and resultant hospitalisation.
Relevantly, Dr Smith maintained the diagnoses of PTSD, Major Depressive Disorder and Alcohol Use Disorder. He opined that the disorders were substantially contributed to by her exposure to the events described to him. He assessed her as having 28% WPI with no deduction for non-work related or pre-existing conditions.

Dr John Nguyen

Ms Hawkins also relied on a number of short reports from her treating GP, Dr Nguyen. The reports were provided to EML and were based on consultations between 1 September 2011 and 28 April 2013.[17]
[17] ARD, pp 50–58.
The reports relevantly disclose that the history recorded at first consultation was limited to Ms Hawkins being “involved in a deeply tragic case of a childhood murder, was exposed to human remains of the child coming into exhibits.” The date of injury was recorded as 16 May 2011. Dr Nguyen diagnosed PTSD and depression and detailed the ongoing treatment and capacity for employment.

Dr Danielle Florida

Ms Hawkins was referred to Dr Florida by Dr Nguyen in September 2013.
The reports provided by her are largely directed to Dr Nguyen, save for a report dated 7 February 2015 provided at the request of Ms Hawkins’ legal representatives. It would be fair to say the reports to Dr Nguyen indicate that Dr Florida proceeded to treat Ms Hawkins on an acceptance of the diagnosis of PTSD without apparent application of diagnostic criteria to the symptomology to arrive at that diagnosis.[18]
[18] ARD, pp 60–65.
In the report dated 7 February 2015 directed to Ms Hawkins legal representatives, Dr Florida confirmed the diagnosis of PTSD and Major Depression and reported the use of alcohol as a coping mechanism in the past.

Ms Nicole Sweeney

Ms Sweeney provided psychological treatment to Ms Hawkins in 2012 and 2013. The ARD includes two reports by her directed to EML.
The first report dated 30 August 2012, recorded symptoms that Ms Sweeney considered consistent with PTSD and experiences that operate as “triggers” in Ms Hawkins’ condition. Her current diagnosis was listed as PTSD with co-morbid depression. Ms Sweeney described Ms Hawkins as being compliant with her treatment regime. Ms Sweeney considered Ms Hawkins had a poor prognosis for return to pre-injury employment but favourable for a return to work with a new employer.[19]
[19] ARD, pp 68–72.
The second report, dated 1 May 2013, was once again directed to EML, but this time it was in response to a request by EML to consider the views of Dr Vickery. A copy of Dr Vickery’s report was provided to Ms Sweeney. Ms Sweeney expressed her reasons for strong disagreement with Dr Vickery.[20] As Dr Vickery’s report was not relied on by either party and not admitted into evidence, the views of Dr Vickery and Ms Sweeney are not repeated here, save to say that Ms Sweeney said that “through standardised testing, as well as through consultation, Ms Hawkins’ symptomology has been consistent with PTSD with a co-morbidity of a Depressive episode”[21] and “alcohol use is a known co-occurrence with PTSD.”[22]
[20] ARD, pp 73–76.
[21] ARD, p 73.
[22] ARD, p 74.
Ms Sweeney added the following:
“I do not deny that family issues have contributed to the complexity of Ms Hawkins situation; however a known prognostic indicator for developing Post Traumatic Stress Disorder is not having a supportive environment.
…
Furthermore, Ms Hawkins did not feel supported by her employer or colleagues ... Ms Hawkins makes reference to not disclosing the impact of the critical incidents as ‘that would be seen as weak’ …
Another known prognostic indicator for developing PTSD is exposure to previous critical incidents. I again refer to Ms Hawkins statement where she recalls a number of incidents which lead to her demise, with the [KA] matter being the final incident that exceeded her coping resources. As noted, the above mentioned familial incidents referred to in the provided statements in isolation are not consistent with Ms Hawkins clinical presentation and reported symptomology, and as previously noted, the alcohol abuse and family issues can be attributed to having arisen as a result of the development of PTSD.”[23]
[23] ARD, p 74.

Medical evidence of the NSW Police Force

The only forensic medicolegal report relied upon by the NSW Police Force was the report of Dr Samson Roberts, psychiatrist, dated 13 November 2016.[24] The NSW Police Force previously arranged through EML for Dr Vickery and Dr Martin to examine Ms Hawkins and provide reports on her claim. Although their reports were included in the documents filed, NSW Police elected to rely only on Dr Roberts so that there was no breach of cl 44 of the Workers Compensation Regulation 2016 (the 2016 Regulation). Neither party argued the reports of Dr Vickery and/or Dr Martin were admissible as exceptions to subcll (a) and (b) of cl 44, or that they should be admitted as evidence of the history provided.
[24] ARD, pp 217–242.
Dr Roberts examined Ms Hawkins on 7 November 2016. He was provided with the factual investigation and statements, medical reports of Dr Smith, Dr Nguyen, Ms Sweeney, Dr Florida, Dr Vickery, historical reports from NSW Police Medical Officers and psychologists and the clinical notes of Nepean Hospital dated 30–31 October 2004.
Dr Roberts took a history from Ms Hawkins that before she ceased work in August 2011, she was suffering from worsening anxiety and nightmares and was drinking to “compensate.” Ms Hawkins said there was a build-up of instances, but the final incident was the murder of a child two streets from where she lived. That incident was more significant because it was close to home, was highly publicised and it was a child. Ms Hawkins gave examples of train fatalities and a shotgun suicide. Ms Hawkins reported occasional use of alcohol prior to her entry into the NSW Police Force. This became more frequent at 19 when she joined the NSW Police Force and by 2006, she was drinking heavily every day. She acknowledged there were periods of diminished function. Dr Roberts took the history that since 2011 her alcohol consumption had diminished to periods of abstinence when in hospital. At the time of the examination, she was drinking three to four glasses of wine, three to four days per week.
Dr Roberts recorded the events of August 2011 and that Ms Hawkins was subsequently placed on alternate duties in the Exhibits Office, where she was required to handle exhibits from the KA case. She attributed those duties as causative of her injury.
Ms Hawkins reported to be depressed and anxious, suffering panic attacks (with or without overt triggers), low energy, experiencing nightmares and she described avoidance behaviour. Ms Hawkins reported that she did not experience enduring benefit from the PTSD course that she undertook in 2015.
Ms Hawkins further reported that she took six months to recover from the violent domestic relationship in 2004, for which she had no treatment. Ms Hawkins spoke about the AVO’s that had been put in place.
Dr Roberts commented through the report on inconsistencies in Ms Hawkins’ assertions, including:
(a)that she lacked concentration (unable to read or watch television for more than ten minutes) which was not reflected in her ability to provide a cogent history in a long interview;
(b)she was well groomed in her appearance;
(c)she did not describe symptoms of shortness of breath, palpitations, increased heart rate, gastrointestinal symptoms or light headedness, which would be typically prominent in episodes of severe anxiety or panic;
(d)her description of flashbacks was more reflective of reminders;
(e)the distance from her home to KA’s place was one kilometre, not two streets away as alleged, and
(f)her interpersonal difficulties pre-date the period of psychological decline and were inconsistent with her reported previous successful friendships.
Dr Roberts formed the view that information from 2004 indicated her alcohol abuse pre-dated the events relied on by Ms Hawkins as causative, and in particular it was seven years before the case of KA. Dr Roberts said she had obviously been affected by relationship difficulties and her work performance was impacted by alcohol abuse. She had a history of attempts at self-harm and she has been the subject of disciplinary proceedings.
Dr Roberts opined that there was diagnostic uncertainty because of the inconsistencies recorded at [167] above. She portrayed a far greater involvement in the case of KA and lived further away than asserted.
Dr Roberts arrived at a diagnosis of Alcohol Use Disorder and Major Depressive Disorder, neither of which was work-related and were more likely to be conditions to which she is pre-disposed by virtue of her biology. His opinion was that her psychiatric impairment “pre-dates any of the matters to which she ascribed her deterioration … It is psychiatrically implausible to accept the notion that Ms Hawkins’ Alcohol Use Disorder, of onset in 2004 is secondary to the claimed Posttraumatic Stress Disorder which she asserts arose in 2011.”[25] He added that if her work-related experiences were causative, an amelioration of her symptoms following cessation of work would be expected.
[25] ARD, p 233.
NSW Police also relied on medical evidence pertaining to assessments of Ms Hawkins’ fitness for work between 2004 and 12 May 2011, together with hospital records from Nepean Hospital dated 30–31 October 2004.

Nepean Hospital notes

The notes relevantly record:
“21 yr old … with ? self harm.
No known past hx.
Hx from pt. → very teary.
– denies anything physically wrong with her.
– says has only drunk “a couple” of drinks tonight.. Denies taking anything else.
– Does not recall much of evening’s events.
– Denies any self harm.
– Denies suicidal ideation.
Hx from mother → pt. has history of acute depressive episodes [secondary] to failed/turbulent relationships [with] boyfriends.
Never self harmed.
Friends @ scene noted ? stanley knife found in bathroom
Nil Reg meds
–Policewoman
o/e Teary ++. Smells of alcohol ++
superficial [laceration] → left wrist radial side..
Nil other injuries found
Imp: Acute depressive episode precipitated by social issues.”[26]
[26] Reply, pp 10–11.

The notes further refer to a history provided by Elizabeth Hawkins that:
(a)Ms Hawkins’ father was a very dominant and strict man;
(b)Ms Hawkins would usually make boyfriends and move into their house to avoid living with father, and
(c)Ms Hawkins would frequently break up with her boyfriends.

Dr Li – Police Medical Officer

Dr Li was requested to assess Ms Hawkins with respect to her fitness to return to full duties following the above admission.
In his report dated 17 November 2004, Dr Li referred to the incident on 29 October 2004 (recorded as personal relationship issues) and took a history from Ms Hawkins that she was suffering with no psychological symptoms. Ms Hawkins denied suicidal ideation and bodily harm ideation. Dr Li assessed “no significant psychological finding.” Dr Li noted medical certificates from Dr Dat, Ms Hawkins’ GP. Attempts to contact Dr Dat failed and no response was received by Dr Li to a request for information sent to the psychiatrist at Nepean Hospital. Dr Li noted Ms Hawkins was applying for a transfer to other duties. He advised an independent specialist assessment would be required. He further advised there was a moderate risk of self-harm. He recommended maintaining restricted duties and Employee Assistance Program counselling and monitoring by Ms Hawkins’ local doctor.[27]
[27] ARD, pp 278–279.
Dr Li again assessed Ms Hawkins and provided a further report dated 27 June 2005, commissioned in respect of a criminal charge relating to unauthorised retention of a firearm that had been found at her home on the night of her attempt at self-harm in October 2004. He reported no obvious significant psychological finding at assessment.[28]
[28] ARD, p 286.

Dr Tahira Jabeen – Psychiatric Registrar, Nepean Hospital

A hand-written report by Dr Jabeen dated 17 November 2004 was directed to Dr Li. Dr Jabeen reported a history consistent with the notes recorded above. Dr Jabeen advised that Ms Hawkins had absconded before the hospital had the opportunity to take a comprehensive history. The hospital discharged Ms Hawkins into her mother’s care. Arrangements were made for further care through Blacktown Hospital but Dr Jabeen considered Ms Hawkins may not attend. Dr Jabeen recommended assessment of Ms Hawkins’ mental state and risk factors by a NSW Police psychiatrist before returning to work.[29]
[29] ARD, p 180.

Dr Anthony Samuels, psychiatrist

At the request of Dr Li, Dr Samuels conducted an assessment of Ms Hawkins and provided a report dated 6 December 2004.[30]
[30] ARD, pp 181–185.
Dr Samuels reviewed the history taken in the Nepean Hospital notes. He noted a diagnosis was made of an adjustment disorder. He recorded Ms Hawkins reported to him that on the night of her admission, she had had about nine to ten alcoholic drinks. She normally had three to four drinks twice per week and assured him that she did not get intoxicated on a regular basis and denied any previous contact with mental health professionals. Ms Hawkins advised him there were “no real problems” with her father and “things were going really well” with her boyfriend, with whom she was now living.
Dr Samuels’ assessment of her Ms Hawkins’ mental state recorded Ms Hawkins was neatly attired, pleasant and cooperative. There were no neurovegetative symptoms of anxiety or depression and she had no psychotic symptoms. Ms Hawkins denied suicidal ideation.
Dr Samuels could not ascertain a psychiatric diagnosis. He recommended advice with respect to safe intake of alcohol and considered there was no contraindication of her being able to return to full police duties, including using a firearm.

Ms Diane Hanna, psychologist

On 6 June 2005, Dr Li referred Ms Hawkins to Ms Hanna for follow up assessment in respect of the incident in October 2014, including a pending court hearing in relation to the safe keeping of her firearm.
Ms Hanna administered an MMPI-2 profile that disclosed no major psychological concerns. Ms Hanna noted Ms Hawkins considered the violent relationship with her boyfriend had impacted her socio-economically and work-wise. However, Ms Hawkins had learned from the experience. Ms Hawkins had good insight, family and social support.

Dr Naresh Verma, Police Medical Officer

In August 2010, Dr Verma (whose qualifications were that of an occupational physician) was asked to assess Ms Hawkins by Superintendent Cox with respect to her unsatisfactory absence from duty.
Dr Verma’s notes were adduced in evidence in the Reply filed by the NSW Police Force but are difficult to read.[31] Her report dated 17 August 2010 confirms however that Ms Hawkins reported the excessive sick leave taken over 2009 and 2010 was because of significant personal stressors over the preceding 18 months that had resulted in exacerbation of physical symptoms. Dr Verma said that Ms Hawkins had a satisfactory psychological assessment, a normal mental state and even mood with no evidence of depression or anxiety. Dr Verma was of the opinion that there was no evidence of any underlying physical or psychological illness and Ms Hawkins was fit for full operational duties.
[31] Reply, p 21.
Ms Hawkins was again referred for assessment by Dr Verma in May 2011. The clinical notes of the consultation are in evidence in the proceedings but for the most part are also difficult to read.[32]
[32] Reply, pp 29–35.
Included in the Reply is a report by Dr Verma of the assessment dated 12 May 2011 directed to Superintendent Cox.[33] The referral was in respect to concerns for her welfare following a threat to self-harm, continuing excessive sick leave and past incidences of alleged self-harm and behaviour while intoxicated.
[33] Reply, pp 36–37.
Dr Verma reviewed the past history and noted the domestic dispute on 4 April 2011 and Ms Hawkins’ threat of self-harm in an intoxicated state. Ms Hawkins reported to Dr Verma that she was having limited contact with her family which was a “relief.” Dr Verma reported that the impression conveyed was that Ms Hawkins’ alcohol consumption was generally not excessive, but that on 4 April 2011 she “drank too much”. Ms Hawkins denied any depressive symptoms and had a supportive social network of close friends.
Dr Verma concluded that Ms Hawkins was fit only for restricted duties and was psychologically vulnerable. The doctor strongly recommended treatment by a GP and a psychologist, with review in four months, together with a progress report from the psychologist.

Kellie Meek, psychologist

Ms Hawkins was also psychologically assessed by Ms Meeks on 12 April 2011. The history taken by Ms Meek was that there was a history of family disagreements and her father had twice been physically abusive. Ms Meek’s case notes[34] reveal that Ms Hawkins underwent psychological testing that revealed:
(a)a degree of under-reporting;
(b)no significant elevations on any of the clinical scales, and
(c)on a different test, there were elevations on Anger control scores.
[34] Reply, pp 27–28.
The notes also reveal that Ms Hawkins disclosed no personal psychological history and that her usual intake of alcohol was two glasses of wine. The history taken was that after the incident on 4 April 2011, Ms Hawkins attended a psychologist on one occasion. They discussed life priority lists and family issues which Ms Hawkins found helpful. Ms Hawkins reported a reduction in alcohol use since 2004/2005 and denied any illness, difficulties or concerns associated with alcohol use. Ms Hawkins reported that she spent time off work socialising, and continued to enjoy scuba diving, cars and farm work. She reported thoroughly enjoying her duties and was applying for promotion.
Dr Verma concluded that Ms Hawkins reported no current symptoms, which was consistent with her psychometric testing. Some concerns were noted in respect of Ms Hawkins’ vulnerability regarding alcohol use. Dr Verma recommended Ms Hawkins remain on restricted duties and a review of her progress with her psychologist should be undertaken in eight weeks.

OTHER EVIDENCE

The ARD and Reply included substantial documentation from the NSW Police Force. The documents are relevant in terms of their consistency with the lay evidence provided by statements included in the investigation report. As the historical reporting by those witnesses is consistent and was not challenged at arbitration, I do not summarise those documents, except to say the documentation accords with the historical accounts provided in the statements.

THE ARBITRATOR’S REASONS

The Arbitrator issued written reasons for his determination dated 6 December 2017.
The Arbitrator noted the objections to aspects of the witness statements raised by counsel for Ms Hawkins at the arbitration and confirmed that he had ruled through those parts of the statements that were excluded.
The Arbitrator further noted that the NSW Police Force did not directly attack the credibility of Ms Hawkins and did not seek to cross-examine her.
The Arbitrator did not repeat the submissions of the parties but summarised the thrust of their submissions.
The Arbitrator said that the NSW Police Force submitted there were multiple occasions prior to 2011 when Ms Hawkins could have conveyed her symptoms to superiors, colleagues and medical practitioners. There was an absence of complaint about any work-related factors until the evening of 4 April 2011. The NSW Police Force also submitted that persisting symptoms for six years after cessation of employment was not consistent with a finding of a causal connection with employment. The NSW Police Force relied on the lay evidence of the Police witnesses, particularly with respect to their observations of, and conversations with, Ms Hawkins.
The Arbitrator noted that Ms Hawkins submitted the submissions by the NSW Police Force were “twee.” Ms Hawkins submitted that the criticism that Dr Smith’s first report had an incomplete or inaccurate history was wrong. The Arbitrator recorded that Ms Hawkins’ counsel submitted a lengthy statement from Ms Hawkins was made available to Dr Smith and the statement specifically referred to many incidences which Ms Hawkins perceived to be perturbing.
The Arbitrator referred to Ms Hawkins’ submission that Dr Roberts and the NSW Police Force had erroneously focussed on her involvement in the case of KA in that they ignored Ms Hawkins’ evidence (and that of her mother) of multiple traumatic incidences early in her career that stimulated psychological problems.
The Arbitrator also noted Ms Hawkins’ submission that the opinion expressed by Dr Smith in his report dated 11 April 2013, was based entirely on the evidence of the NSW Police Force but was subsumed into Dr Smith’s comprehensive report of 3 November 2015. The submission was that Dr Smith had considered a wide range of material before arriving at his conclusion that Ms Hawkins had suffered an employment injury and her employment was a substantial contributing factor.
The Arbitrator reviewed Ms Hawkins’ evidence in some detail. He also carefully reviewed the contemporaneous medical evidence recorded between 30 October 2004 and 1 September 2011, noting that the medical diagnosis of the treating doctors (including Dr Smith) was one of PTSD.
The Arbitrator provided a précis of the evidence relied on by the NSW Police Force, which included the witness statements from the factual investigation and the medical evidence of Dr Roberts.
He considered there was no doubt that Ms Hawkins suffered from a recognisable psychiatric disease. He understood Ms Hawkins’ case to be that the various incidences described in her statements contributed to the contraction or aggravation of a disease.
The Arbitrator formed the view that much of Ms Hawkins’ evidence is inconsistent with the contemporaneous evidence. He said it was evident that there was no complaint to the medical practitioners whose reports and notes are in evidence until after she was charged with driving under the influence of alcohol. There was also no complaint made to any co-worker or supervisor, including no such complaint to Sergeant Underwood who was her friend. On the contrary, she informed Sergeant Underwood that her issues were related to her family and did not mention the case of KA.
The Arbitrator said that during the arbitration he asked counsel for the NSW Police Force if Ms Hawkins’ reliability was in issue but did not receive a response. The Arbitrator expressed the view that he was reluctant to make adverse findings when the matter has not been raised by opposing counsel. He said however, that there is:
“a difference between, on the one hand, a submission of untruthfulness and, on the other, one that the applicant’s evidence should not be accepted. Patently, there was no suggestion of the former in this case and no basis to consider such a finding. The question is what weight should I give to the applicant’s evidence, the applicant’s mother’s evidence in the context of the other evidence.”[35]
[35] Reasons, [111].
The Arbitrator found that although Ms Hawkins’ counsel submitted the police witnesses were “doing a job” on Ms Hawkins, the evidence did not support such an allegation. The allegation was suggestive of a conspiracy and was a finding not open to the Commission.
The Arbitrator said that it was clear that there were external factors that were having an impact on her psychological well-being, as reported to Ms Meek in 2011. In contrast, Ms Hawkins reported she enjoyed her work. The evidence of family difficulties was confirmed by the evidence of Sergeant Underwood.
After assessing the medical evidence, the Arbitrator formed the view that only Dr Smith and Dr Roberts had access to most of the evidence from both parties. Their opinions on causation were diametrically opposed, but Dr Smith in the report of 11 April 2013, expressed doubt in respect of the basis of the diagnosis of PTSD. The basis of the doubt was that:
(a)the police evidence of the limited involvement in the case of KA made it doubtful that her involvement was a likely cause of PTSD;
(b)the other incidences were not reported to Dr Smith as the substantial contributing factor to her emotional decompensation;
(c)in his view, work was not the substantial contributing factor to her psychiatric disorder;
(d)“other factors” significantly contributed to her condition, and
(e)there had been little improvement in her condition in the six years that Ms Hawkins had been away from police work.
In the context of the conclusions reached by Dr Smith in his 2013 report, the Arbitrator referred to Ms Hawkins’ submission that it was necessary to look to the final report from Dr Smith in order to discern his opinion’. He considered the submission had considerable force. The Arbitrator noted that at the time of writing the 2015 report, Dr Smith had available to him Ms Hawkins’ statement of 2014 and that of her mother. He would also have his own report from 2013 and the conclusion made therein on causation. It was on that background that Dr Smith expressed the view that Ms Hawkins’ employment was the cause of her psychological condition and employment was a substantial contributing factor.
The Arbitrator observed that if Dr Smith’s final opinion was accepted unreservedly, then that was powerful evidence from her long term treating psychiatrist in support of her case.
However, the Arbitrator found that there were aspects of the 2015 report that suggest it ought not be unconditionally accepted. There is a contradiction between his opinion in 2013 that there were other factors significantly contributing to her condition and his 2015 report, where he opined there were no competing causes for the emergence of the disorders. The Arbitrator observed that this view was inconsistent with the contemporaneous evidence and Dr Smith gave no clear explanation for the change in his position.
Further, the Arbitrator noted Dr Smith’s opinion that the lack of improvement over the six years that Ms Hawkins was away from her employment was a factor that mitigated against a work-related cause in his 2013 report (as did Dr Roberts), but failed to address it in 2015. Further, Dr Smith gave no reasons for not considering it material.
The Arbitrator formed the view that the 2015 report did not diminish the reservations he felt flowing from the 2013 report. He expressed his view that he preferred the report of Dr Roberts, about which he had some reservation, but accepted it over that of Dr Smith because “[t]he factual basis upon which he concluded that the Applicant did not suffer an injury is closer to the facts which I accept. I prefer that to the opinion of Dr Smith.”

The Arbitrator at [131] said:
“[T]he absence of any complaint to any of [Ms Hawkins’] colleagues or to the medical practitioners whose reports are in evidence over a reasonably long time is, in my opinion, important. It suggests it is improbable that work was a contributing factor or a substantial contributing factor to the applicant’s psychiatric condition.”
The Arbitrator further said at [133]:
“I appreciate that Dr Smith’s opinion on diagnosis and causation is the same as that of Ms Sweeney and Dr Florida. As I have earlier indicated, however, neither have a history of the applicant’s employment consistent with the evidence before the Commission. Dr Smith also referred to the evidence of the applicant’s mother. That evidence must be considered, however, in the same way as I have considered the applicant’s evidence. Ultimately I am not persuaded that the applicant has made out a case that her employment materially contributed to her psychiatric condition.”
The Certificate of Determination issued on 6 December 2017 records:
“1. Award for the respondent.”

GROUNDS OF APPEAL

Ms Hawkins alleges the Arbitrator erred in fact and law on five grounds, expressed as follows:
(a)Ground One: error of law in failing to provide sufficient reasons;
(b)Ground Two: error of fact in failing to consider all of the evidence;
(c)Ground Three: error of law in taking into account the report of Dr Smith dated 11 April 2013;
(d)Ground Four: error in law by not taking into account Ms Hawkins perceptions arising from her police service, and
(e)Ground Five: Error of law in applying the wrong test of causation.

LEGISLATION

Prior to the 2012 Amendments to the 1987 Act, “injury” was defined in s 4 as:
“4     Definition of ‘injury’
(a)     means personal injury arising out of or in the course of employment,
(b)     includes:
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, …”

SUBMISSIONS

Ground One: error of law in failing to provide sufficient reasons

Ms Hawkins submits that the Arbitrator failed to deal with the reports of Dr Martin, forensic medical reports commissioned by the NSW Police Force which formed the basis upon which the NSW Police Force initially accepted liability. She submits the NSW Police Force paid weekly compensation and treatment expenses from 24 September 2011 to 30 May 2013. Ms Hawkins says that the NSW Police Force withdrew reliance on that report because it infringed cl 44 but that Ms Hawkins relied on the reports as her only forensic medical evidence.
Ms Hawkins submits that the Arbitrator failed to deal at all with reports from her treating medical practitioners, Dr Nguyen, Dr Florida and Ms Sweeney. Ms Hawkins refers to [133] of the Arbitrator’s decision (quoted at [216] above) as “an obtuse reference” to the reports.
Ms Hawkins submits that the Arbitrator “at no stage” previously indicated that those practitioners did not have a history consistent with the evidence. The Arbitrator did not deal with the reports at all.

Further, Ms Hawkins submits that the Arbitrator gave no reasons for failing to consider her submission that by accepting liability and paying weekly payments and treatment expenses, the NSW Police Force made an admission of liability.
In response, the NSW Police Force submits that for Ms Hawkins to succeed on this ground, she must demonstrate not only that the reasons are inadequate but that their inadequacy discloses that the Arbitrator failed to exercise his statutory duty to fairly and lawfully determine the matter.[36] Further, it is not necessary to refer to every piece of evidence.[37]
[36] YG & GG v Minister for Community Services [2002] NSWCA 247.
[37] Ainger v Coffs Harbour City Council [2005] NSWCA 424 (Ainger), [30].
The NSW Police Force referred to the decision in Soulemezis v Dudley (Holdings) Pty Ltd,[38] where McHugh JA (as his Honour then was) said that if there is an obligation to give reasons it is not necessary to give lengthy or elaborate reasons. The NSW Police Force submits that the reasons provided by the Arbitrator are cogent and adequate.
[38] (1987) 10 NSWLR 247 (Soulemezis), [280].
The NSW Police Force submits that the reports of Dr Martin were withdrawn from the ARD and counsel for Ms Hawkins advised that she was not relying on them. They were therefore not in evidence and the Arbitrator was not required to consider them.
The NSW Police Force referred to the comments by Ms Hawkins in relation to [133] of the Arbitrator’s Reasons as “somewhat derogatory.” It submits that the Arbitrator gave reasons for not giving further consideration to the reports of treating medical practitioners, Dr Nguyen, Dr Florida and Ms Sweeney. The reasons included a “careful” review of all of the medical evidence from 2004 and the histories provided therein. NSW Police submits that the review of that evidence included the reports of Dr Smith, Dr Verma, and Ms Kellie Meek, as well as the various hospitals to which Ms Hawkins was admitted.
The NSW Police Force submits that there was no evidence before the Commission of past payments of compensation, or any other evidence that there had been an admission of liability made in respect of this claim. Further, there was no allegation made either in the pleadings or in submissions of the existence of such an admission.

Ground Two: error of fact in failing to consider all of the evidence

Ms Hawkins submits that the Arbitrator failed to consider the medical evidence from Dr Martin, Dr Nguyen, Dr Florida and Ms Sweeney.
Ms Hawkins also alleges that the Arbitrator failed to consider her argument that the acceptance of liability was an admission of liability.
Ms Hawkins further submits that the Arbitrator failed to take into account the evidence that between 2003 and 2011, Ms Hawkins underwent drugs and alcohol testing on 11 occasions, and on each occasion the result was negative.
Additionally, Ms Hawkins alleges the Arbitrator focussed on the lack of contemporaneous complaints rather than “taking account of her perceptions.”
The NSW Police Force submits that this allegation merely restates the matters alleged in Ground One and so it repeats its submissions in Ground One in respect of this ground. Further, it submits that there were no submissions made at arbitration with respect to the drug and alcohol testing recorded between 2003 and 2011.

Ground Three: error of law in taking into account the report of Dr Smith dated 11 April 2013

Ms Hawkins states that the Arbitrator considered the report to be “important” and made extensive references to it in the context of Dr Smith’s earlier and later reports. Ms Hawkins refers to the Arbitrator’s Reasons at [5] and [96]–[100].
Ms Hawkins submits that the report was commissioned by the NSW Police Force and that the letter requesting the report included a copy of Dr Vickery’s report of 28 February 2013, upon which Dr Smith was asked to comment.
Ms Hawkins contends that Dr Smith took into account Dr Vickery’s opinion when considering causation and that because the reports of Dr Vickery were not relied on in the proceedings, the “qualification” to Dr Smith’s opinion should also not be taken into account. Ms Hawkins submits that the NSW Police Force has overcome the restriction in Regulation 59 [sic, cl 44] by providing a report it does not rely on to influence the opinion of another practitioner, “whose opinions formed a large part of the Arbitrator’s analysis.”
Ms Hawkins further submits that Dr Smith was not provided with copies of the earlier reports of Dr Martin that resulted in an acceptance of liability. Dr Smith’s qualification was therefore not provided in a “fair climate.”
The NSW Police Force submits that Ms Hawkins relied on the report of Dr Smith dated 11 April 2013, without “any attempt to amend the report.” It submits that the report was prepared, not only on the basis of the report of Dr Vickery, but also on the factual material provided to Dr Smith. The factual investigation was admitted into the proceedings. The NSW Police Force submits that the exclusion of the report of Dr Vickery does not compromise the report of Dr Smith, particularly as Dr Smith disagreed with Dr Vickery. The NSW Police Force submits there was a “fair climate” to consider the opinion of Dr Smith in his report of 11 April 2013.

Ground Four: error in law by not taking into account Ms Hawkins’ perceptions arising from her police service

Ms Hawkins submits that she gave detailed evidence of her perceptions of traumatic events in the course of her employment. She submits that the NSW Police Force did not attack her credibility, and did not cross-examine her.
Ms Hawkins submits that the Arbitrator took into account the extensive medical evidence and lay evidence relevant to the lack of contemporaneous complaint that her condition was work related, attributing it instead to her interpersonal issues.
Ms Hawkins makes reference to the opinion of Dr Martin as being supportive on the question of causation.
The NSW Police Force submits that this ground alleges the Arbitrator did not take into account Ms Hawkins’ evidence of traumatic experiences, but refers to the detailed evidence recorded by the Arbitrator in his reasons. The NSW Police Force submits that because the Arbitrator did refer to that evidence in some detail, the allegation of error is without substance.
The NSW Police Force refers to submissions made on its behalf at arbitration that it relied on the lay witness evidence. In respect of the reliability of Ms Hawkins evidence, there were two matters for consideration. The first was the inaccuracy of her evidence in relation to her employment duties, particularly her involvement with the case of KA. Secondly, the evidence of Ms Hawkins’ colleagues about the extent to which Ms Hawkins appeared to be affected by family issues.

Ground Five: error of law in applying the wrong test of causation

Ms Hawkins refers to the Arbitrator’s Reasons at [105] where the Arbitrator stated that “the critical initial question is whether the Applicant’s psychological condition was stimulated by her employment.” Ms Hawkins submits that the Arbitrator “glossed over” the phrases of ss 4(a) and 4(b) of the 1987 Act and therefore misdirected himself with respect to “the issues to be answered.”
Ms Hawkins says that assuming the case falls within s 4(b) of the 1987 Act, the question to be answered was whether the traumatic events were a contributing factor to the onset or aggravation of her psychiatric disease. Ms Hawkins submits that the Arbitrator misdirected himself by searching for a “stimulator” and failed to consider or apply s 4(b)(ii).
Ms Hawkins also submits that the Arbitrator erred in making no reference to whether her perception of events was a contributing cause to the onset or aggravation of her condition.
The NSW Police Force submits that the Arbitrator determined that it was improbable that work was a contributing factor or that it was a substantial contributing factor at [131] and that the employment did not materially contribute to the psychiatric condition at [133]. The NSW Police Force submits that those findings were a final bar to the success of the claim. Further, there is no submission made by Ms Hawkins that those findings are wrong as a matter of law.

DISCUSSION

Ground One: failing to provide sufficient reasons

Ms Hawkins asserts that the Arbitrator erred in that he “failed to deal with” the reports of Dr Martin dated 13 March 2012 and 2 May 2012. Those reports were annexed to the ARD.[39]
[39] ARD, pp 190–197.
The Arbitrator noted in his reasons that at the arbitration, counsel for Ms Hawkins objected to the NSW Police Force relying on more than one forensic medical report. As a result, the NSW Police Force withdrew reliance on the reports of Dr Vickery and Dr Martin.[40] The transcript of the arbitration confirms that to be correct. It also confirms that counsel for Ms Hawkins advised the Arbitrator that the documents were included in the ARD because they had been annexed to the s 74 notice, but that Ms Hawkins did not rely on them and the documents were withdrawn.[41]
[40] Reasons, [9].
[41] Transcript of Proceedings, Samantha Hawkins v State of New South Wales (NSW Police Force) (WCC, [2017] NSWWCC 291, Arbitrator Sweeney, 3 October 2017), T 2.19–29.
The reports of Dr Martin were not before the Arbitrator and so he was not required to consider Dr Martin’s opinion or provide reasons for not accepting it.
Ms Hawkins further submits that the Arbitrator failed to “deal at all” with reports from her treating medical practitioners, Dr Nguyen, Dr Florida and Ms Sweeney.
The Arbitrator carefully reviewed the contemporaneous medical evidence from 2004, including hospital records and medical reports from various practitioners that assessed Ms Hawkins’ psychological state. He also set out in detail the lay evidence from Ms Hawkins, Ms Hawkins’ mother and the NSW Police witnesses.[42]
[42] Reasons, [19]–[90].
Following that review, the Arbitrator concluded that:
“much of what the applicant says about the effect of work upon her psychological condition is inconsistent with the contemporaneous evidence. It is evident that before being charged with DUI, the applicant did not mention trouble at work to the medical practitioners whose evidence I have summarised above. There is no real dispute about this.”[43]
[43] Reasons, [107].
The Arbitrator gave examples of instances when Ms Hawkins could have complained to both to medical practitioners and colleagues of the effect of work-related events, but did not. He said the most telling evidence was that of Sergeant Underwood, Ms Hawkins’ friend. He also said that it was quite clear that there were external factors that affected her psychological well-being and referred to evidence supporting that concept.
After consideration of the above, the Arbitrator concluded at [117] that there were only two doctors who had “most of the evidence on both sides of the record.” On that basis, the Arbitrator proceeded to consider the evidence of the two doctors, Dr Smith and Dr Roberts.
It is obvious from the Arbitrator’s reasons that the Arbitrator took into account the opinions of Dr Nguyen, Dr Florida and Ms Sweeney. He recorded their diagnosis of PTSD, and Dr Florida and Ms Sweeney’s views on causation, which he said were consistent with the opinion as to causation and diagnosis ultimately arrived at by Dr Smith.[44]
[44] Reasons, [69] and [133].
To ascertain whether the Arbitrator’s reasons are adequate, it is necessary to take into account the whole of the decision. The Arbitrator’s reasons are not required to be lengthy or elaborate.[45]
[45] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443.
In Roncevich v Repatriation Commission,[46] Kirby J said that the Courts:
“[S]hould avoid an overly pernickety examination of the reasons.”
and that:
“[t]he focus of attention is on the substance of the decision and whether it addressed the ‘real issue’ presented by the contest between the parties.”
[46] [2005] HCA 40; 222 CLR 115, [64].
Section 294(2) of the 1998 Act requires that when a Certificate of Determination is issued by the Workers Compensation Commission (the Commission), a “brief statement” setting out the Commission’s reasons must be attached.
Taking into account the Arbitrator’s observations of the evidence, I am of the view that the Arbitrator’s reasons as a whole are indeed sufficient to satisfy the necessary degree of adequacy required by s 294(2) of the1998 Act.
Further, Ms Hawkins complains that the Arbitrator failed to give reasons as to why he did not take into account the admission of liability made by the NSW Police Force in making payments of weekly compensation and treatment expenses.
Ms Hawkins does not point to any part of the transcript that records a submission to that effect. I have perused the transcript and there is nothing that suggests such a submission was made.
The Arbitrator cannot have erred in failing to consider a submission not made before him.[47]
[47] Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111, [22] and [30].
The NSW Police Force submit that there is no evidence of past payments or an admission of liability. It is, however, implicit from the submissions of both counsel for Ms Hawkins and for the NSW Police Force that Ms Hawkins was in fact paid compensation for a period and she had exhausted 26 weeks of weekly payments at her award rate.[48]
[48] T 42.26–43.5.
In any event, an admission made otherwise than in the course of a formal court process is merely an item of evidence that the court might ultimately accept or reject. It cannot be withdrawn, but it can be explained.[49] The initial acceptance of liability is explained by the medical support available to the insurer and the subsequent denial of liability based on new medical evidence that challenged the causal nexus. It cannot be said that the initial acceptance of liability in this case was persuasive evidence that the events relied upon caused Ms Hawkins’ psychological condition.
[49] Nominal Defendant v Gabriel [2007] NSWCA 52, [113].
Having regard to the Arbitrator’s findings and reasons, I am satisfied that the Arbitrator’s reasons comply with the legislative requirements in s 294(2) of the 1998 Act and are of a standard by which the adequacy of reasons must be determined.

Ground Two: error of fact in failing to consider all of the evidence

Ms Hawkins submits that the Arbitrator failed to consider the medical evidence from Dr Martin, Dr Nguyen, Dr Florida and Ms Sweeney.
For the reasons expressed in [251]–[256] above, this submission is rejected. The Arbitrator clearly considered the evidence of those treatment providers and gave adequate reasons for concluding that those opinions did not assist him.
Ms Hawkins also alleges that the Arbitrator failed to consider her argument that the acceptance of liability was an admission of liability.
For the reasons expressed in [261]–[265] above, I do not consider the Arbitrator has fallen into error as that submission has never been before him to consider. The submission is rejected.
Ms Hawkins further submits that the Arbitrator failed to take into account the evidence that between 2003 and 2011, Ms Hawkins underwent drugs and alcohol testing on 11 occasions, and on each occasion the result was negative.
Once again, it is not an error for an Arbitrator to fail to consider a submission not presented to him at arbitration. Ms Hawkins does not identify a point in the transcript where this submission was made and I can find no reference to that document in any of the submissions made on her behalf.
In addition, no submission was made in this appeal as to how such testing was probative and relevant to the issue before the Arbitrator. It is accepted that Ms Hawkins suffers from Alcohol Use Disorder. On one view, it could be considered evidence to counter Ms Hawkins own evidence that she was abusing alcohol as a coping mechanism when faced with traumatic events.
It is unhelpful that in her submissions, Ms Hawkins refers to and quotes the report of Dr Martin dated 2 May 2012 that was not relied on by either party and is not in evidence
Further, Ms Hawkins alleges the Arbitrator focussed on the lack of contemporaneous complaints rather than “taking account of her perceptions.”
It is somewhat difficult to understand the submission. There was no challenge to Ms Hawkins’ allegations of fact that the events occurred except to the extent of her exposure to the case of KA. This case does not rise and fall on how Ms Hawkins perceived the events, as it would if Ms Hawkins had misperceived real but innocuous events that led to her psychological decline. The issues for the Arbitrator to determine were:
(a)the competition between potential causative factors – on the one hand the events she experienced and on the other, the interpersonal and family problems, and
(b)whether those factors caused or contributed to her psychiatric condition.
The Arbitrator weighed the evidence and accordingly determined that he was not satisfied work related events contributed to Ms Hawkins psychiatric condition. That finding was open to him on the evidence.
This ground of appeal discloses no error and therefore fails.

Ground Three: error of law in taking into account the report of Dr Smith dated 11 April 2013

Ms Hawkins submits that the Arbitrator ought not to have regard to this report.
Dr Smith provided a number of reports between 2011 and 2015 in which he expressed his views based on the information available to him. This report indicates that on this occasion he had before him not only the report of Dr Vickery but also the factual investigation that included the lay evidence of the NSW Police witnesses.
As the NSW Police Force submits, Dr Smith disagreed with Dr Vickery’s opinion that Ms Hawkins did not suffer from a recognisable psychological condition. He further disagreed with Dr Vickery’s assessment of Ms Hawkins’ capacity for employment.
Dr Smith then reviewed the factual evidence. Dr Smith concluded:
“The additional documentation that you have provided to me does cause me to more closely question the basis for the diagnosis of Post Traumatic Stress Disorder given Ms Hawkins’ peripheral involvement in the matter that she claimed she was extensively involved in. Her exposure to the [KA] matter was such that in my opinion it would not have resulted in the development of a Post Traumatic Stress Disorder. Her involvement in other significant events related to her work potentially could have produced a Post Traumatic Stress Disorder but these were not reported to me as being the substantial contributing factor to her emotional decompensation.”[50]
[50] ARD, p 32.
Dr Smith agreed that “other factors are significantly contributing to her psychiatric presentation and have substantially contributed to her current symptomologies.”
It is clear from the above that Dr Smith changed his position with respect to the question of causation after consideration of the NSW Police Force lay witness evidence. There is nothing to suggest that Dr Smith’s views were swayed by the opinion of Dr Vickery. Merely being appraised of another medical opinion does not mean that Dr Smith’s report was compromised or that the Arbitrator should disregard it. The report was in evidence and submissions were made at the arbitration as to how the Arbitrator ought to treat that evidence. The absence of evidence from Dr Vickery is immaterial to the admissibility of report.
It is ethically appropriate that a complete picture of the of Dr Smith’s opinion was before the Commission.[51] Had the Arbitrator disregarded the views expressed in the report, the NSW Police Force would undoubtedly have proper grounds for complaint.
[51] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399, [92].
There is no basis to say that the NSW Police Force have overcome cl 44 of the 2016 Regulation (the restrictions on relying on more than one forensic medical report). Dr Vickery’s report was not in evidence. The Arbitrator’s reasons disclose that he did not at any stage take into account Dr Vickery’s opinion.

Ms Hawkins’ argument that as Dr Smith was not provided with the reports of Dr Martin, Dr Smith’s opinion was not created in a “fair climate” is somewhat circular and inconsistent with the submission with respect to the effect of Dr Vickery’s report on Dr Smith’s report. Dr Martin’s reports were not in evidence.
In any event, it was open to Ms Hawkins to have sought Dr Smith’s view as to whether Dr Martin’s opinion caused him to alter his opinion, and she did not.
In addition to the above, Ms Hawkins made no submission at arbitration that Dr Smith’s report of 11 April 2013 did not create a “fair climate”[52] for his opinion.
[52] Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 62 ALR 85.
This ground of appeal is untenable and must fail.

Ground Four: error in law by not taking into account Ms Hawkins’ perceptions arising from her police service

Ms Hawkins contends that she provided detailed evidence of her perceptions arising from traumatic events. She submits that there was no attack on her credibility and she was not cross-examined. Ms Hawkins further submits that the Arbitrator took into account the extensive evidence that Ms Hawkins related her condition to her interpersonal family issues.
Ms Hawkins says that does not mean that she was not having those perceptions. Ms Hawkins does not explain why in this case her perception of the events is relevant to the issue of causation.
I have dealt with those submissions at [274]–[277] above. Ms Hawkins’s reliance on extracts from the medical report of Dr Martin that are not in evidence is as unhelpful as her failure to provide cogent submissions as to how the Arbitrator might have erred.
This ground of appeal fails.

Ground Five: Error of law in applying the wrong test of causation

Ms Hawkins submits that the Arbitrator misdirected himself in searching for a “stimulator” as opposed to considering whether Ms Hawkins’ exposures to work related stressors were contributing factors to her psychiatric disease or any aggravation of the disease. She submits that the Arbitrator made no analysis of the application of s 4(b)(ii) of the 1987 Act.
At [105] of the reasons, the Arbitrator said:
“The critical initial question is whether the applicant’s psychological condition was stimulated by her employment? Did she contract or aggravate a disease in accordance with the extended definition of injury in the workers compensation legislation[?]”
The Arbitrator reproduced s 4(b) of the 1987 Act and then proceeded to weigh the evidence, providing sound reasons as to why certain evidence was preferable to other evidence, including why he preferred the opinion of Dr Roberts to that of Dr Smith.
At [103], the Arbitrator said:
“Irrespective of whether the applicant’s condition is related to her employment, it seems likely that she suffers from a recognisable psychiatric disease … [T]he diagnoses considered by the doctors, are all abnormal psychological conditions which the Commission has traditionally characterised as diseases.”
The Arbitrator ultimately concluded at [133] that he was not persuaded that Ms Hawkins “has made out a case that employment materially contributed to her psychiatric condition.” The Arbitrator did not search for a “stimulator”, but proceeded to consider the evidence and determine whether there was any causal connection between the events Ms Hawkins described and her psychiatric condition.
Consistent with ss 4(b)(i) and 4(b)(ii) of the 1987 Act, the Arbitrator clearly approached his determination by appreciating that the task before him was to determine whether Ms Hawkins had either contracted or aggravated her psychiatric condition (which he considered a disease) in the course of her employment.
Ms Hawkins has not established error in the Arbitrator’s reasoning and this ground fails.

Conclusion

Section 352(5) provides that my role in an appeal from a decision of an Arbitrator is limited to the identification of error of fact, law or discretion in the decision and to the correction of such error.
For the reasons to set out above, Ms Hawkins has not established error on the part of the Arbitrator and the appeal fails.
Ms Hawkins seeks costs of the appeal. As she has been unsuccessful both in this appeal and at arbitration, I make no order as to costs.

DECISION

The name of the respondent is amended to delete “(NSW Police Force)”.
The Arbitrator’s Certificate of Determination dated 6 December 2017 is confirmed.
No order as to costs.

Elizabeth Wood

Deputy President

28 May 2018