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

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Holston v State of New South Wales (NSW Police Force) [2025] NSWPIC 108
APPLICANT:	Bjorn Holston
RESPONDENT:	State of New South Wales (NSW Police Force)
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	25 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for psychological injury where the respondent admits injury but raises a defence under section 11A; Held – award for the applicant; the respondent had not discharged his onus of proof that the whole or predominant cause of the psychological injury was as a result of discipline; Hamad v Q Catering Pty Ltd applied.
DETERMINATIONS MADE:	The Commission determines: 1. The claim for weekly compensation is discontinued. 2. The respondent has not established a defence under s11A of the Workers Compensation Act 1987. 3. The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows: Date of injury: 1 April 2022 (deemed). Body System: psychological injury. Method: whole person impairment. Documents to be referred: Application to Resolve a Dispute, Reply and Application to Lodge Additional Documents dated 10 January 2025 excluding pages 1 to 88. 4. Pursuant to s 60 of the Workers Compensation Act 1987 the respondent is to pay the applicant’s reasonably necessary treatment expenses upon production of accounts, receipts and Medicare Notice of Charge. 5. The respondent is to pay the applicant’s costs as agreed or assessed. 6. There is to be an uplift for both parties costs by 20%. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Bjorn Lensmand Holston, the applicant, was attested into the NSW Police on
24 August 2013. He performed general duties for a number of years as well as working in the Proactive Crime Unit (PCU). It is common ground that arising out of or in the course of his employment with the respondent he developed a psychological injury. However, the applicant asserts his psychological injury was caused by many events up to 25 March 2022 including:
(a)    interactions with Sergeant Doherty including when he was told he had to stand up in front of his colleagues and say he was an idiot;
(b)    interactions with Sergeant Davies;
(c)    harassment and bullying including the incident at Christmas where he was given a toiletries bag, and
(d)    allegations about the applicant assaulting a suspect, including how the investigation was conducted and that Chief Inspector Webber was directed to remove facts from his report.
The applicant submits these events culminated in him seeking medical attention on
25 March 2022 and on 26 March 2022 he sent a communication to his employer complaining about bullying and harassment up to that time.
The respondent disputes that these events were the cause of the psychological injury. It argues that the injury was caused by the meeting on 29 March 2022 and the subsequent discipline and criminal proceedings. The respondent’s counsel confirmed that s 4 of the Workers Compensation Act 1987 (the 1987 Act) is not in dispute, that the dispute relates to the s 11A defence.[1] The s 78 notice dated 24 June 2022, and repeated in the notice dated
[1] T20-21.6.
[2] ARD p 98 and p 126.
5 September 2024, assert the s 11A defence is in respect to discipline and performance appraisal.[2] However, counsel in his submissions only addressed discipline.
The claim for weekly compensation was discontinued in the conciliation phase of the proceedings. The claims for compensation requiring determination are confined to lump sum compensation under ss 66 and 67 of the 1987 Act. In addition there are claims for treatment expenses however, the applicant, if successful, seeks a general order pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The matter proceeded in arbitration hearing on 16 January 2025. Mr Bruce McManamey, counsel, appeared for the applicant instructed by Mr James Burns, solicitor. Mr John Gaitanis, counsel, appeared for the respondent instructed by Mr Justin Heng, solicitor, and Ms Dasari from the employer and Zena from the insurer.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Lodge Additional Documents (ALAD) filed by the respondent on
10 January 2025 excluding pages 1 to 88.

Excluded documentary material

The respondent argued that if the applicant is successful and the lump sum claim was being assessed by a Medical Assessor the documents from pages 1 to 88 of the ALAD should be available for the Medical Assessor to consider and question the applicant about expenditure such as travel. These documents are mainly bank statements. The applicant’s counsel objected to these documents being admitted, arguing they are irrelevant now that the weekly compensation claim has been discontinued. He pointed out that the bank statements are from joint accounts so it was not possible to glean who made any particular expenditure. In the discussion about whether these documents should be admitted, I asked the respondent’s counsel if he intended to draw my attention to particular entries in the documents or to any conflict in the evidence compared to the entries in the bank statements and he replied no.[3]
[3] T5.28ff.
In light of the fact the bank statements relate to joint accounts, are voluminous and given the respondent could not point to any specific relevant entry, I found the respondent has not established that the documents have relevance to the real issues now in dispute and leave was not granted for them to be admitted as additional documents. The balance of the documents attached to the ALAD were admitted with the consent of the applicant.
During the conciliation phase of the hearing the respondent emailed a bundle of documents that were produced in answer to Directions for Production to the District Court and Local Court. The bundle was not attached to an Application to Lodge Additional Documents nor paginated. It is 54 pages according to my computer counter. Contained in the documents are the 19 page judgment of Flannery SC DCJ in the case of R v Bjorn Lensmand Holston dated 30 May 2024 and the balance of the documents are some transcripts before Local Court Magistrate Reiss dated 3 October 2023 in the case of R v Bjorn Lensmand Holston.
The applicant objected to me admitting this bundle of documents into evidence. The basis of his objection was that the documents are late, they are not the transcripts of the evidence, they are all documents that would have been in the possession of the police and there is no explanation as to why they could not have produced them earlier. Finally, the submission was made that the documents are not relevant, they add nothing to the matter. The applicant submitted that there is no dispute that the applicant was charged with two offences, convicted of both offences and the conviction in relation to one offence was quashed on appeal. It was submitted that the issue requiring determination by the Commission is whether compensation for the applicant’s injury is excluded by s 11A of the 1987 Act.
The respondent submitted that the documents are evidence from a competent jurisdiction in relation to highly significant events in the applicant’s life. Counsel argued that the real issue in the case is one of causation of the psychological injury, which is accepted. He submits that the psychological injury is due to “discipline and performance” whereas the applicant says he is relying upon the circumstances leading up to 29 March 2022 as being causative of the injury.
The respondent submitted that the proceedings in the Local Court were in relation to very serious offences which carried the possibility of a custodial sentence and the applicant made an application before Magistrate Reiss in relation to s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. The respondent submitted the significance of this was that the applicant sought to suggest at the time of the offence he was suffering from a medical or psychological condition. The respondent’s counsel argued that the applicant had been cross-examined and gave evidence in the proceedings and notice of the criminal investigation was not given until after he had already ceased duties. Counsel also submitted that the applicant’s father-in-law had also given evidence in criminal proceedings and the counsel in the criminal proceedings said the father-in-law thought it was all fine with the applicant until the charges arose.[4] The respondent argued that it was represented to the Local Court that the applicant’s condition arose as a result of these charges. However, as I mentioned to the respondent’s counsel it appears that the applicant’s counsel before the Magistrate seemed to qualify his submission because he told the Magistrate “I suspect even those nearest and dearest to the applicant knew very little about what he was struggling with in terms of his mental health until March 2022.”[5]
[4] T13.5ff.
[5] T13.30- 14.1.
The respondent’s counsel submitted that where there are issues of credit the Commission needs to take into account what has been said in other jurisdictions. He submitted that it was relevant that Judge Flannery in the appeal proceedings did make a finding that the applicant had falsely recreated the fact sheet. The respondent’s case is that up until March 2022 there was nothing causing psychological injury until these matters and the subsequent criminal proceedings. It was submitted that is why these documents are important and should be admitted into evidence.
The applicant’s counsel submitted the proper issue in the workers compensation proceedings is the conclusions that can be drawn from the source material. He submitted that it is clear that the Magistrate did not have before him the records from the general practitioner and so he was not aware of the prior consultation, that is on 25 March 2022. He noted that the applicant was still on duty up to 29 March 2022. Finally, the applicant’s counsel submitted that ultimately what the Magistrate and Judge found was based on other evidence, and is of “no materiality” to what the Commission has to consider. He submitted the Commission needs to consider the source material to determine what were the causes of the psychological injury and that the Judge in the District Court when considering s 14 was concerned with how the applicant would be treated under the criminal code.
The applicant’s counsel stated that as he had only just read the material and he cannot answer my enquiry as to whether his client is prejudiced if the material was to be admitted. He submits that it has no relevance at all. He argues that unless the Commission has the full record of what was before the Magistrate and Judge Flannery it is an incomplete record.
Despite the respondent arguing that credit is an issue, with the approach taken in the criminal proceedings allegedly differing regarding the applicant’s psychological state and that being advanced in the workers compensation proceedings, the respondent has not sought to cross-examine the applicant. I accept the applicant’s submission that the documents sought to be relied upon are an incomplete record particularly as they do not include a transcript of evidence given by the applicant and other witnesses, nor am I confident that the Commission has a copy of all the documents that were tendered in the Court proceedings. I ruled that the material could not be admitted into evidence for several reasons, including that it was provided very late, there is no explanation why the respondent could not have provided the transcript of evidence and documents that were relied on in the criminal proceedings. Also it is not in dispute that the applicant was charged with the two offences, found guilty of both by Magistrate Reiss and the offence of Pervert the Course of Justice was overturned by Judge Flannery and the other offence of Access/Modify Restricted Data Held in Computer was upheld on appeal. Therefore, I was not persuaded that the material is relevant to the issues I have to determine relating to the s 11A defence.

Oral evidence

There was no oral evidence. Both counsel made oral submissions which have been recorded. A written transcript (T) has been made from the submissions.

FINDINGS AND REASONS

The respondent has accepted that the applicant does have a psychological injury arising out of or in the course of his employment. However, the respondent asserts he is not entitled to compensation for this injury because it has a defence under s 11A of the 1987 Act.
The respondent bears the onus in establishing the s 11A defence.[6]
[6] Northern NSW Local Health Network v Heggie {2013] NSWCA 255, Heggie.
Section 11A of the 1987 Act relevantly provides:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The elements in s 11A which the respondent must prove on the balance of probabilities to establish the defence pursuant to s 11A are whether the psychological injury was:
(a) wholly or predominantly caused with respect to one of the matters set out in the section, and
(b) by reasonable action taken by or on behalf of the employer.
In Hamad v Q Catering Ltd[7] Deputy President Snell stated at [85]:
“There are a number of other findings, relevant to the causation issue, which could not, in my view, be appropriately made in the absence of medical evidence. The Arbitrator was entitled to have regard to the sequence of events; he was entitled to have regard to his common knowledge and experience of ordinary life. However, as the Arbitrator previously observed at [62] of his reasons, a series of events can have a cumulative effect, and may be causative of a psychiatric condition which does not manifest itself until a later time. That does not mean that the earlier events in the series are not causative (see the discussion in Secretary, Department of Family and Community Services v Colleen Jones by Executor of her Estate Carol Hewston [2016] NSWWCCPD 63 at [33]- [45]).”
[7] [2017] NSWWCCPD 6, Hamad.

Factual evidence

I find the events the applicant complains about occurring before 25 March 2022 did occur. There is a difference in perceptions about these events. I have briefly summarised the main factual events below.

Sergeant Doherty

David Noble in a statement dated 18 January 2023 confirms that in 2018 Sergeant Doherty had told the applicant to stand in front of everyone and he says that the applicant had “f***** up the vehicle diary” and that Sergeant Doherty told the applicant he had to say he was an idiot.[8] This accords with the applicant’s statements. Sergeant Doherty at [13] of his statement denies he made any such comment and would never make such comments about any staff member in front of the team, if that he thought it was a serious issue. He mentions they had a fine jar for people to put in a dollar if they had made incorrect entries. I am inclined to believe the applicant’s version as it is supported by Mr Noble’s evidence.
[8] ARD p 89.
However, the applicant has also referred to Sergeant Doherty being difficult to deal with. Yet on the applicant’s individual performance review dated 1 March 2021 Sergeant Doherty made complementary remarks:
“Senior Constable Holston has shown a high level of motivation for his duties within the Proactive Unit and continues to work hard in all aspects of his work. He has a strong knowledge of local offenders and has a particular skill set for proactive policing and both myself and Sergeant Davies have commented on his increasing skills with his case work. A recent example was the positive comments made by a presiding magistrate over one of S/Cst Holston's matters where a strong and thoroughly prepared brief of evidence was presented to the court leaving the magistrate with an easy decision to convict the offender. The magistrate made positive comments on the quality of the brief presented to the court. This was very pleasing feedback for us as supervisors to receive. I would like to see S/Cst Holston continue to develop his skills and in the next 8-9 months start to look towards where he wants to take his skills and set some new goals.”[9]
[9] Reply p 10.
On this review the applicant wrote about himself in positive terms.
In the performance individual review dated 1 September 2021 the applicant again spoke about himself in positive terms and Sergeant Doherty also wrote positively about the applicant,
“S/Cst Holston has performed well in this last reporting period. He has worked well with the team and achieved some good results in terms of disruption strategies which have resulted in positive arrests which have impacted crime within the district. His work is completed in a timely manner and to a high standard. He continues to work well within the team environment and has shown flexibility with his roster making amendments as required to meet the needs of the district.”[10]
[10] Reply p 8.
In the performance review dated 1 March 2022 the applicant again only recorded positive comments. Officer Evan Davies wrote:
“S/C HOLSTON continues to maintain a high level of motivation to conduct Proactive work and investigations. In the previous period he demonstrated growth in his investigative capabilities, using his initiative to conduct electronic surveillance on a group of recidivist offenders with good result.”[11]
[11] Reply p 6.
I find it is not particularly surprising that the applicant would not refer to negative matters in his performance review and that he would endeavour to highlight his contribution to the team. Similarly, his superiors have not referred to any shortcomings or errors that the applicant may have made and none of the complaints about him are recorded in these documents. They do not appear to be for that purpose. Therefore, I place no particular reliance on these documents one way or the other.

15 January 2021 incident

The arrest on 15 January 2021 occurred where the applicant says he used his knee to help to restrain the offender. Chief Inspector Webber in his statement dated 2 June 2022 said the applicant approached him at the scene and told him that his partner Constable Wolsey was yelling at him during the restraint and she seemed upset with him afterwards. Chief Inspector Webber says he told the applicant that he had been speaking to Constable Wolsey and she had not disclosed any issues to him. Sometime later Chief Inspector Webber told the applicant a complaint had been made about this incident. He says when he spoke to Senior Constable Wolsey he told her that the applicant had told him he used his knee in the restraint and he did not punch the offender. Chief Inspector Webber says that Senior Constable Wolsey responded that maybe it was the applicant’s knee but she thought it was a punch.

Chief Inspector Webber said he completed the triage form and was later told to resubmit the form and take out his comments about the conversation he had with Senior Constable Wolsey. I note the offender did not complain about being punched.
Superintendent Darryl Jobson in his statement dated 6 June 2022[12] says he received legal advice about the alleged assault complaint and that was there was no reasonable prospect of conviction. He received this legal advice on 22 October 2021 and told the applicant this outcome on 25 October 2021. He confirms while this matter was being investigated the applicant had not been put under an Interim Risk Management Plan (IRMP).

Christmas gift 2021

[12] ARD p 53.

In his statement Bradley Clarkson confirms at the Christmas party in 2021 gifts were given out that were a novelty or a joke, representing something that had occurred during the year. He said it was all designed to be light-hearted banter. He confirms there had been comments made to the applicant going to Silverwater but he says it was generally after the applicant had been bantering. Senior Constable Brett Alexander in his statement dated
[13] ARD p 87.
30 December 2022 at [12] refers to banter about the applicant involving Senior Constable Bradley Clarkson.[13] S/Constable Alexander refers to various other incidents and says at [17] while working with the applicant he noticed he became more stressed and was less happy at work, that he seemed more withdrawn and voiced that he felt he was being unfairly targeted by certain members of the command.
While I accept that the applicant may have participated in banter, I find that he was subjected to continued jokes about jail following the complaint about the assault, even after the complaint was not substantiated. I find the evidence of S/Constable Alexander to be significant because it provides corroboration that the applicant was becoming stressed and less happy at work and that he expressed that he felt he was being unfairly targeted. Even though the applicant did not attend a doctor until 25 March 2022 this statement of S/Constable Alexander does to some extent belie the submission by the respondent that these early events were not significant.

Complaint email dated 26 March 2022

The applicant says on 26 March 2022 he spoke to Chief Inspector Nicholls and told him he would be sending him an email, which he did that night. At [95] of his first statement he sets out the contents of that email.[14] He refers to being subjected to systematic and relentless bullying, character assassination and being discriminated against over the past five years. He says he has tried to work through this and it was causing him extreme stress and anxiety. He asked for a meeting to address his concerns. He says the next day was his rostered day off but Chief Inspector Nicholls rang him and confirmed he would contact him the following Tuesday when he was back on shift.

Complaint which became basis of criminal charges

[14] ARD p 25.

The two complaints which were brought to the applicant’s attention in the meeting on
29 March 2022 related to a vehicle search on 4 February 2022 and secondly that he provided improper advice to a junior officer about legal action in relation to a drug seizure. Only the first matter became the subject of criminal charges.
On 4 February 2022 the applicant allegedly searched a vehicle parked on private property in which a knife was located. An issue was raised whether the vehicle was on private or in a public place at the time of the search.
It was alleged on 17 February 2022 the applicant amended a fact sheet on the computer to include information he allegedly knew was false to overcome an evidentiary deficiency in the information presented to court.
On 14 March 2022 it was alleged that the applicant gave incorrect advice to a junior officer to charge an offender in relation to a drug possession offence. More information about this matter is contained in the Minutes-Continuation Form P1151 dated 21 November 2022 which has annexed a document headed “sent via email from Brad Clarkson AM 23/3/22”. Apparently the applicant and junior officer Constable Christie had searched a person and found nothing but then located a wallet which contained the ID of the person they had searched and a small quantity of prohibited drugs. It is stated that the applicant strongly suggested that Constable Christie charge the person with possessing the prohibited drug. It was stated that the applicant had not followed due process and cautioned the suspect and did not ask the simplest investigative questions to prove possession.
It later was found that it could not be said on balance that the applicant did provide inaccurate advice[15]
[15] ALAD p 144.
Superintendent Jobson states on 23 March 2022 complaints were received about both matters. He says on 26 March 2022 Inspector Campbell triaged the complaint and recommended he be referred to a senior officer for an evidence based investigation. Superintendent Jobson says on 28 March 2022 he considered Inspector Campbell’s triage and agreed with the recommendation and he referred the matter to Detective Sergeant Atkins for a non-criminal evidence based investigation and an IRMP was required to restrict the applicant to internal duties.
Superintendent Jobson says on 28 March 2022 Chief Inspector Nicholls sent him the applicant’s email.

Meeting 29 March 2022

The applicant states at around 1400 on 29 March 2022 he was contacted on his mobile phone by Chief Inspector Nicholls and asked to attend the commander’s office. The applicant said he did attend and present was Superintendent Jobson and Chief Inspector Nicholls.
The applicant says he was informed by Superintendent Jobson that he was being subjected to a departmental complaint in relation to an allegation of dishonesty in relation to the facts surrounding a vehicle search and also providing improper advice to a junior officer in relation to a legal action after seizure of prohibited drugs.
The applicant says an IRMP was provided to him where he was informed he would have to perform station duties only operating under general duties, so changing his role from the proactive crime unit. This was to take place immediately.
He says this made him feel extremely upset and disappointed and he felt he had been presumed guilty and was being punished without proper investigation. He regarded this as part of a pattern of treatment and bullying. He said neither officer acknowledged his email of 26 March.
He said this was a formal meeting of which he had not been given the minimum of 24 hours’ notice, nor opportunity of bringing a support person. He says he became emotionally vulnerable, felt worthless and unwanted and he struggled to provide a few examples of the treatment he had experienced that he mentioned in his email on 26 March. He says he felt overwhelmed and just closed up. He said he was at breaking point.[16] At [105] of his statement he says at the conclusion of this meeting he was in disarray, felt physically sick, his legs would not stop shaking and he felt let down. He said he was not asked if he was ok and it was quite evident that he was emotionally disturbed. He said after the meeting he had to sign the IRMP and he felt forced into doing this and he feared further action would be taken against him if he did not sign it. He checked the roster and saw he had been placed on a team where complainant 2 would be working. He said he immediately contacted Chief Inspector Nicholls and expressed his concerns and this complainant was the partner of complainant 1. He was told the roster would not be changed again and this person would only be on his team for four weeks. The applicant says this was unsatisfactory and placed him in a vulnerable position at risk of unfair treatment. He says as a result he left work and returned home where he felt empty, ashamed and embarrassed to say anything to his wife.
[16] ARD p 27.
The applicant also states that following this he had heard from staff that prior to him being aware of this complaint, numerous staff had had conversations discussing the potential complaint, and that Amanda Holton had shown people the body worn footage and he regarded this a breached of confidentiality.[17]
[17] ARD pp 30-31.
Superintendent Jobson at [13] of his statement outlines his version of the meeting. He says he read and explained the direction strategy so that the applicant clearly understood the intent of the direction. Superintendent Jobson said the applicant said he was not going to put up with what had happened to him after an earlier complaint when snide remarks were made and he was going to talk to his solicitor about this. Superintendent Jobson said he would shut down any comments being made and he was happy to take details of issues raised now.
He said the applicant wanted to talk to his solicitor about this and he noted the applicant did seem hesitant about signing the IRMP but he did after talking outside to Nicholls.
Superintendent Jobson says the meeting was conducted professionally and with empathy and there is no policy that says a support person is required “as this was a rudimentary managerial meeting”. He says reference to welfare support was made in the meeting and he made it clear that the IRMP was only interim and did not represent final management action.
Superintendent Jobson states on 3 April 2022 Detective Sergeant Atkins submitted a report that the applicant’s alleged misconduct may have perverted the course of justice or attempted to do so by knowingly falsifying information on a fact sheet. It was decided to obtain legal advice and on 1 June 2022 CMT was held to consider the legal advice and a decision was made that the investigation would change direction to a criminal evidence based investigation considering the offences of pervert the course of justice and unauthorized modification of restricted data held in the computer.
On 2 June 2022 Detective Sergeant Atkins told the applicant of this decision.

P902 Form

The P902 incident report form was submitted by the applicant on 1 April 2022.[18] In the box asking how the incident occurred that applicant states that he was summoned to the superintendent’s office and was not provided with sufficient time to get a support person. He says he wasn’t fazed about the complaint but was in relation to the punishment in being forced into general duties and having to answer phones for two weeks and being monitored doing that. He says he was in shock at the time. He felt like he was being bullied into signing the document given to him without consulting any support. He mentioned the 2021 investigation and that he was not removed from any duties at that time.

Criminal proceedings

[18] ARD p 91.

On 20 September 2022 criminal proceedings were initiated against the applicant for the offences “Do act with intent to pervert the course of justice” and subsequently it was added “access/modify restricted data held in computer.”
In late 2023 the applicant was convicted in the Local Court for both offences and was sentenced to a 12 month intensive corrections order and 100 hours community service. He lodged an appeal which was heard by Judge Flannery in the District Court on 28 May 2024. The charge of perverting the course of justice was overturned but the modify data charge was upheld and the applicant received a 12 month good behaviour bond.[19]
[19] See pp 43-44 ARD.
The applicant in his statement dated 9 October 2024 contends that even though the criminal proceedings and conviction have had an impact on his mental health he firmly believes his current symptoms and poor mental health are a consequence of the bullying and continued harassment he was subjected to prior to the meeting on 29 March 2022.[20]
[20] ARD p 44.

Medical evidence

On 25 March 2023 the applicant attended at the Reliance Medical Practice and saw Dr Okpe John. It is recorded that he “complains of worsening anxiety and stress. No depression. He attributes his condition to the investigation he was subjected at his work place between April and November 2021 and repeated bullying from some work colleagues”.[21] The doctor diagnosed stress from job, anxiety disorder. He was advised to book for a general practitioner mental health therapy plan (GPMHTP) and referral for cognitive behaviour therapy (CBT). Sleep was noted to be normal.
[21] ARD p 223.
On 1 April 2022 Dr Okpe John completed a GP Mental Health Treatment Plan diagnosing moderate depression, moderate anxiety and stress and workplace bullying. In his consultation note the doctor records that the applicant complains of worsening anxiety and stress and again states that the applicant attributed his condition to the investigation he was subjected to at work between April and November 2021 and repeated bullying from colleagues. Dr John also recorded the information he conveyed in the referral to
Ms Metelerkamp.
Dr Okpe John wrote to Ms Toni Metelerkamp, psychologist, on 1 April 2022 stating that the applicant:
“attributes his condition to the investigation he was subjected to at his workplace between April and November 2021 and repeated bullying from some work colleagues…Reported that he is scare[d] of returning to work because [of] ongoing harassment management and bully[ing] from management. That conditions aggravated his anxiety and stress in 3 days.”[22]
[22] ARD p 137.
The doctor also wrote that the applicant “also complains of PTSD from work place incidence”.
Ms Metelerkamp reported to Dr John on 13 April 2022 that the applicant’s sleep was very poor and as a result his anxiety is high, his tolerance is low and he is having significant difficulty concentrating. She advised that the applicant’s functioning is sufficiently poor to warrant an inpatient stay in either Berkeley Vale Private or Brisbane Water Private and that would mean he would see a psychiatrist immediately. She advised that the applicant was not well enough to be at work.[23]
[23] ARD p142.
On 14 April 2022 Dr John’s consultation note records that the applicant states that his psychologist recommended he be referred to a psychiatrist and that his condition remains the same as at his last visit.[24] Dr John wrote a referral to Dr Sean Yenson at the Hills Clinic in identical terms to the referral to Ms Metelerkamp.[25]
[24] ARD p 225.
[25] ARD p 144.
On 20 June 2022 Dr Peter Young, psychiatrist, provided a medico-legal report to the insurer’s solicitors.[26] He took a history from the applicant that Sergeant Doherty had a micromanagement style, was unapproachable and made negative comments towards him. He referred to the incident in 2018 when he felt humiliated in front of other staff concerning comments Sergeant Doherty made about his vehicle diary. He also complained about being passed over for promotion. The applicant also related that in May 2020 he was questioned regarding his possession of Kevlar gloves and a flexi-cuff and he was told there would be no further action about this yet it was brought up later when he was accused of using excessive force in an arrest. He was informed on 4 April 2021 he was under criminal investigation over this incident. He said he felt distressed because his career was in jeopardy and he described feeling emotionally destroyed. He said he was subjected to harassment by his co-workers who he said made jokes and embarrassing comments about the investigation.
[26] ARD p 287.
The applicant told Dr Young he spoke to his general practitioner in March 2022 regarding these issues saying he had had enough. Dr Young also relates the following history:
“He submitted a complaint regarding his treatment, and he said that shortly following
this, he was then called to a meeting in which further allegations had been made
against him. He said that this was being treated as a criminal matter and he was
placed on an injury risk management plan and confined to station duties. He felt
distressed following this, saying his legs were shaking and he felt sick. He locked
himself in a room for the rest of the day saying that he felt worthless and frustrated.
Shortly after this, a further incident occurred in which police attended his home in relation to his firearms and he felt further distress and embarrassment by this action.”
Dr Young diagnosed an adjustment disorder. In answer to a question 11 about the s 11A defence he states that the stress associated with interactions with his managers regarding his performance, actions following complaints and feeling discriminated against by being passed over for promotion and secondment opportunities have been the whole or predominant cause of his symptoms. He also states that perceived harassment by co-workers has also contributed to his condition.
On 22 July 2022 Dr John wrote a referral to Psychology Perspective at Erina.[27] Dr John advised that the applicant is not fit to work because the work environment is toxic and has not changed since he experienced bullying 18 months ago. The diagnosis was adjustment disorder with anxiety, moderate depression and extremely severe anxiety disorder.
[27] ARD p 146.
On 11 August 2022 the applicant first consulted Dr Belthikiotis, general practitioner, at the Wamberal Surgery.[28] The doctor wrote a report dated 27 September 2023 setting out the consultation dates. He diagnosed a major depressive disorder, adjustment disorder and post- traumatic stress disorder. The history he recounts does not assist me to determine causation as it is somewhat broad in its description. He refers to numerous traumatic events and being subjected to bullying and humiliation at the hands of a cohort of his fellow officers.
[28] ARD p 179
Ms Metelerkamp has also clarified that she does not ascribe to the diagnosis of post- traumatic stress disorder, that she only raised it as a possibility.
On 23 August 2022 Dr Jeff Bertucen, psychiatrist, provided a medico-legal report for the applicant’s solicitors.[29] He largely agrees with the opinion of Dr Young excepting he does not agree that being passed over for promotion and secondment to have been the predominant cause of his symptoms. He says the applicant found these matters frustrating but he persevered and was successful in gaining a permanent job in the proactive team.
[29] ARD p 298.
[30] ARD p 304.
Dr Bertucen found the predominant cause was the hazing and bullying behaviours from March 2021 to March 2022 with the final culminating factor being in March 2022 when he was made aware of a new complaint against him instead of (as he expected) entering a meeting to have his complaints addressed.[30]
On 12 October 2022 Dr Young issued the respondent’s solicitors with a further report headed File Review.[31] Dr Young was asked whether the predominant cause of the adjustment disorder results from the action taken by the insured in relation to the complaint and investigation in April- November 2021 and in relation to the further complaint, investigation and placement on an IRMP on 29 March 2022 as compared with the alleged bullying.
Dr Young answered:
[31] ARD p 307.
“According to the history as described to me, the most stressful elements contributing
to the claimant’s condition were the performance appraisal and disciplinary action
taken by the Insured in relation to the complaint and investigation in April –
November 2021, and the further complaint, investigation, and placement on an IRMP
on 29 March 2022.
The history as reported by Mr Holston to Dr Bertucen places greater emphasis on the
alleged bullying than as was reported to me. It is clear that Mr Holston viewed the
performance appraisal and disciplinary actions as bullying and were included with the
other behaviours described as “hazing and other bullying behaviours.” I believe that
these other behaviours from colleagues had some substantive effect, but the impact
of the performance appraisal and disciplinary action was much greater and thus was
predominant.”
Dr Young was asked a second question as to whether he considered the predominant cause of injury as reported in the clinical records on 25 March 2022 relates to the investigation, performance appraisal and disciplinary matters resulting from the complaint in 2021 as compared with the alleged bullying. He replied:
“The clinical records on 25 March 2022 state: ‘He attributes his condition to the
investigation he was subjected at his workplace between April and November 2021
and repeated bullying from some work colleagues.’
There is insufficient detail to extrapolate from this note as to the predominate
stressors, however, based on the totality of the evidence I remain of the opinion that
the alleged bullying had a substantive but not predominate or main impact, and the
[32] ARD p 308.
predominant cause of the injury relates to the investigation, performance appraisal and disciplinary matters resulting from the complaint in 2021.”[32]

On 24 January 2023 Dr Bertucen provided a further medico-legal report.[33] Dr Bertucen disagrees with Dr Young’s conclusions referred to above. He finds that the performance appraisal and disciplinary action as a final culminating stressor which was a tipping point for the applicant. The doctor states for about six months before this he had been suffering from bullying and harassing behaviour from colleagues regarding his struggle with an offender on 15 January 2021. Dr Bertucen says it was this bullying behaviour which were the substantial cause of the applicant’s depressed and anxious state over the second half of 2021 and early 2022.
[33] ARD p 310.
Dr Bertucen says the incident brought to the applicant’s attention on 29 March 2022 proved to be the final coup de grace to the applicant’s enthusiasm and morale for police work as he was expecting to have a fair hearing about the bullying accusations but was instead confronted by a further complaint against him.[34]
[34] ARD p 311.
On 6 February 2023 Dr Arthur Belthikiotis, general practitioner, wrote to Ms Metelerkamp asking her to provide psychological treatment under the Mental Health Plan.[35]
[35] ARD p 149.
On 20 April 2023 Ms Metelerkamp provided a report to the applicant’s solicitors, although it is mainly focused on the applicant’s capacity for work.[36] In a report to TAL Life Limited dated
6 July 2023 Ms Metelerkamp states that she has seen the applicant on 15 occasions from
[36] ARD p 151.
[37] ARD p 153.
21 April 2022.[37] She advises the diagnosis is adjustment disorder with mixed anxiety and depressed mood and a secondary diagnosis of major depressive disorder, single episode. She says he describes and displays sub-clinical post-traumatic stress disorder symptoms. In answer to a question about current triggers to his condition, Ms Metelerkamp refers to the humiliation and poor treatment he received from senior police officers. She adds that situations that remind him of police related work also act as triggers such as from the various suicides, assaults, murders, deaths and fatal accidents he has attended.
In relation to the question about causes of his ongoing symptoms post-ceasing work, she advises:
“Mr Holston describes a sustained period of vindictive treatment by senior police officers. Due to the bullying and harassment, he is now embroiled in a distressing legal process. The NSWPF dishonesty allegations, which Mr Holston vehemently denies, have cost his career, and his reputation is tarnished even if he is successful in court. Additionally, Mr Holston's employment prospects diminished due to the allegations and the secondary impact on his psychological well-being. Those effects are, for the foreseeable future, likely to continue to shape how he sees himself, others and workplaces.”[38]
[38] ARD p 155.
Alison Cullen, forensic psychologist, provided a medico-legal report dated
[39] ARD p 184.
22 September 2023 for the applicant’s solicitors which states it was prepared to be tendered when the applicant appears before the Court in relation to Do Act Intending to Pervert the Course of Justice and Access/Modify Restricted Data Held in Computer charges.[39]
Ms Cullen has a detailed history of events that the applicant stated affected his mental health such as:
(a)    In October 2020 approaching a person of interest at a service station that tried to run him over, there was fuel spraying everywhere and the applicant was about to pull the trigger to shoot the person. The applicant told Ms Cullen he fell apart after this incident and it took a few weeks to get over it, but he had repressed a lot of that memory.[40]
(b)    In 2021 he was subject to a workplace investigation of which he was cleared of the assault by the end of 2021 but during this time he began to feel worthless which was amplified by the malicious reception he received from his colleagues and he described his mental health at this time as “a pressure cooker”. He continued to work but there was a massive change in his work ethic, he was distant and in a daze.[41]
(c)    At a Christmas party in 2021 he was given a prison toiletries bag as his Kris Kringle. He said his colleagues and supervisors laughed at him and he advised Ms Cullen “that was pretty much me done”.[42]
(d)    He attended a general practitioner around 25 March 2022 to discuss his poor mental health and he subsequently sent an email to his supervisor to inform him he was struggling with his mental health.[43]
(e)    On 29 March 2022 he attended a meeting arranged by Chief Inspector Paul Nicols that the applicant thought had been arranged in response to his email. Instead, he was served with a management plan and he was informed that he was now being investigated for a dishonesty offence. He advised he experienced a panic attack.
[40] ARD p 188 paragraph 1.5.2.
[41] ARD p 188 paragraphs 1.5.3 and 1.5.4.
[42] ARD p 188 paragraph 1.5.5.
[43] ARD p 188 paragraph 1.5.6.
Ms Cullen concluded at [5.3] he had unremarkable psychological health in the years preceding 2021 despite his accumulative work-related traumas prior to that time. She also finds at [5.4] to [5.6] that:
“the ongoing bullying/harassment and accumulative insults (i.e., moral injuries) he has endured by several peers and superiors since his former investigation, for which he was cleared for in 2021, has unsurprisingly demoralised Mr Holston and predisposed him to a DSM-5-TR diagnosis of F43.22 Persistent Adjustment Disorder with Anxiety. At the time of the commission of the index offence/s in February 2022, the aforementioned stressors were still present and accordingly Mr Holston was therefore continuing to suffer with this condition.
Features commonly associated with severe adjustment disorders include diminished ability to think or concentrate, or indecisiveness. It is further typified by the loss of energy/motivation, anhedonia, and feelings of worthlessness, which were seemingly evident from 2021, as supported by Mr Holston's disinclination to carry out police work that he had previously prided himself on (i.e., stopping cars, checking his work over and/or being paranoid about how he conducted his arrests).
There is, therefore, a direct nexus between Mr Holston's psychological symptomatology associated with his Adjustment Disorder and the commission of the index offence/s. This is supported by Mr Holston’s account of being requested by his superior to resubmit the narrative associated with the Facts Sheet which directly correspond to the index offence/s.”
On 9 May 2024 Ms Cullen provided a psychological assessment report in which she updates the history and treatment received by the applicant. She states at [5.5];
“There is, therefore, a direct nexus between Mr Holston's psychological symptomatology associated with his Adjustment Disorder, (as well as traits of ASD) and the commission of the index offence/s. Specifically, Mr Holston’s critical self-concept (likely the result of former protracted workplace bullying and harassment and as previously identified in his PAI profile), selective attention, and indecisiveness, undoubtedly contributed to the initial suboptimal document he initially produced. His pressure to readily comply with requests made by a supervisor (whom had previously been identified as a person responsible for workplace bullying/harassment), his rigidity and the hierarchical expectations of the workplace therefore predisposed him to making amendments to same.”[44]
[44] ARD p 211.
Dr Bertucen provided a further report dated 13 February 2024 after a re-examination.[45]
[45] ARD p 312.
Dr Bertucen says after his previous interview with the applicant he was charged with “do an act intending to pervert the course of justice” and “access/modify restricted data held in computer”. The applicant said from this time it was the worst period in his life. Over 2023 the applicant’s depression and anxiety regressed and increase in alcohol consumption. The doctor states that the symptoms of anxiety and distress were significantly aggravated by the Court process over May- June 2023. It is noted that after he was convicted the details were reported in the local press and this was highly distressing to the applicant.
In terms of causation Dr Bertucen opines that the cause of his final workplace injury was a period of intense bullying and harassment from various colleagues, the inaction of his former employer to halt this and the presentation of a complaint against him when he attempted to approach his commander, Superintendent Jobson, with a complaint about the bullying.
Dr Young reported again to the insurer after re-examining the applicant on 28 May 2024.[46]
[46] ARD p 320.
Dr Young disagrees with Dr Bertucen’s opinion regarding the factors perceived by the applicant as harassment and bullying. He finds the predominant cause to be performance and disciplinary matters including the more recent criminal charges and conviction. In coming to this view the doctor states he relies on the history, the formal statements and available clinical material. He disagrees with the diagnosis of post- traumatic stress disorder but agrees that chronic alcohol abuse disorder is present. He also provided a current diagnosis of major depressive disorder.
Dr Young adds that the applicant clearly states that he views the court process as part and parcel of the harassment and bullying by the police. He states that “the seriousness of the charges and the consequences of the guilty verdict have clearly had a significant additional stress impact.” Dr Young does not think that the applicant sustained a separate psychological injury as a result of the criminal proceedings and loss of employability as a police officer. He says these should be considered as an extension of the effects of the disciplinary process.
On 9 August 2024 Dr Young provided a supplementary report after considering Ms Cullen’s report.[47] He says that the description of the applicant’s symptoms and treatment by
[47] ARD p 329.
[48] ARD p 330.
Ms Metelerkamp is consistent in describing the predominant issues relating to the performance and criminal matters. Dr Young says “Ms Holston’s report is similar” I assume this is a typographical error and should read Ms Cullen’s report.[48]

Submissions

The respondent submits that it is important that the applicant had not submitted a P902 form about psychological injury or complaints until 1 April 2022. It submitted this bears a striking temporal connection to the meeting on 29 March 2022. It argues applying common sense and the Commission’s experience of the world the conclusion would be drawn that the psychological injury is as a result of what happened in March 2022 and as a result of the subsequent discipline and criminal proceedings.
It was submitted because the applicant was a police officer he would have known of the seriousness of the offence of perverting the course of justice as having a great possibility of a custodial sentence.
The respondent’s counsel says the suggestion that being made fun of at a Christmas party would supplant the trauma of the possibility of a criminal offence, should be rejected. It was also argued that the fact that the applicant was not given a support person for the meeting on 29 March 2022 was unreasonable action by the employer, that also should be rejected because a police officer in his normal duties attends on a serious hostile environment without a support person.
The respondent advised that its submissions are more based upon the issue of discipline in s 11A than performance appraisal.[49]
[49] T28.6.
It was submitted that the concept of discipline should be given a wide scope and includes the subsequent events in terms of criminal sanctions or possibility of criminal sanctions and the criminal proceedings.
The respondent acknowledged that both Dr Bertucen and Dr Young agree that the applicant has a psychological injury, being a major depressive disorder and chronic alcohol use disorder, but it is submitted that they do not agree on the reasons for the same. Counsel argues that Dr Bertucen does not give credence to the difficulties and grief that the applicant must have gone through being charged with criminal offences and the criminal proceedings. He argues that Dr Bertucen’s suggestion that the disciplinary action was a tipping point or final culminating stressor cannot be accepted but then counsel corrected his submission by acknowledging that Dr Bertucen stated that the anxiety and distress were significantly aggravated by the court process in the period 2023. Nonetheless counsel submits
Dr Young’s opinion regarding causation should be accepted.
The respondent relies upon the performance individual reviews which are in the reply and submits there is no complaint in any of them about how he was being treated.[50] The respondent submits that the last review document is dated 1 March 2022 and he makes no complaint at that review.
[50] Reply p 5ff.
The respondent submits that by 25 March 2022 the applicant had become aware of complaints against him. It seems the respondent is suggesting that is why he attended the doctor on 25 March 2022.[51] The respondent submits that the clinical notes for 25 March 2022 and 1 April 2022 attribute the condition to the investigation in 2021. The respondent’s counsel also refers to the mention of post- traumatic stress disorder on 1 April 2022 in
[51] T40.10-16.
[52] T41.22.
Dr John’s clinical note and the respondent’s counsel when developing this submission says, “it seems a bit convenient when its after he’s handed an interim risk management plan.”[52] As I observed earlier, at no point did the respondent seek to cross-examine the applicant. I consider it would be procedurally unfair to accept this aspect of the respondent’s submission when it has not been put to the applicant by counsel or even by Dr Young, that it was “convenient” that the reference to post- traumatic stress disorder was made after the meeting on 29 March 2022.
The respondent relies on the report from Ms Cullen and quotes from the passage I have set out at [78] above, that there is a direct nexus between his psychological symptoms associated with his adjustment disorder and the index offences. The respondent submits that the applicant cannot resile from the fact he presented to Magistrate Reiss an argument that his psychological condition was due to the index offences.
However, Ms Cullen also found that the ongoing bullying/harassment and accumulative insults he has endured by several peers and superiors since his former 2021 investigation, predisposed him to a persistent adjustment disorder with anxiety. She also states at the time of the index offences these stressors were still present and accordingly the applicant was continuing to suffer with this condition.
The respondent also referred to the documents including references to other complaints about the applicant including a pursuit of an offending vehicle on 22 March 2022. It seems when one looks at those documents the date is also given as 2 March 2022.
It is set out in the P1088 form headed Minutes -CMT Assessment that on 2 March 2022 the applicant was engaged in a pursuit with an offending vehicle and he allegedly failed to activate any warning devices and allegedly instructed a junior officer not to advise the radio operator of the pursuit. [53]
[53] ALAD p 132.
It appears that the junior officer involved, Constable Kozaruk, advised A/Sgt Holton that he was not comfortable about the pursuit. However, this conversation took place on 3 May 2022 and he was advised to contact Det Sgt Evan Davies, which he did on 4 May 2022. Constable Kozaruk believed that the applicant advised the radio of the pursuit after it ceased. The offending vehicle was located in the driveway of a residence.
The details of this are set out in the NSW Police Force Triage Form P1001.[54] The complainant was Evan Davies. The triage was completed by Gavin Ashby and dated
[54] ALAD p 122.
6 June 2022. On 7 June 2022 the Commander, Superintendent Darryl Jobson accepted the recommendation of the triage officer that the matter be allocated for an evidence based non-criminal investigation.
So the complaint by Constable Kozaruk and the further steps took place well after March 2022 and there is no evidence that the applicant knew about such a complaint at the time he attended the doctor on 25 March 2022 nor was it raised in the meeting on 29 March 2022.
Therefore, I reject the aspect of the respondent’s submissions that there were a number of matters in February and March 2022 raised internally about the conduct of the applicant that led to his presentation to the doctor on 25 March 2022, because the applicant did not know about those complaints at that time.[55]
[55] T45-46.
The respondent also submitted that the investigation in 2021 was viewed by the applicant as bullying and harassment whereas it was not. It was submitted that it was the proper exercise of the employer’s duty to investigate such a complaint. The respondent also submitted that the timeline for the complaint from the 4 February 2022 incident was the complaint was received on 23 March 2022 and on 26 March 2022 Inspector Campbell triaged the complaint. It was submitted that “an available inference is that these matters … he must have known that there was a plethora of incidents that had occurred.”[56] And he must have been aware that there was a possibility of complaints against him. I find that I cannot draw such an inference when the senior police had not yet informed the applicant of such complaints. There is no evidence that such information had been told to him in advance of the triaging of the complaints etc.
[56] T 46.28 ff.
The respondent submits that the reality is that any psychological injury is wholly or predominantly due to the discipline of the employer in the meeting of 29 March 2022, which was reasonable. The respondent refers to the effects that meeting had on the applicant by reference to his own statements, that his was in disarray, felt physically sick and his legs would not stop shaking. The respondent says issuing the interim risk management plan was disciple and of sufficient gravity to cause the applicant to lose his bearings and where the whole or predominant cause of his injury.
The respondent’s counsel referred to the comments of his Honour, the President Judge Phillips in Van Vliet v Landscape Enterprises Pty Ltd,[57] that the concept of reasonableness does not require perfection. It just has to be, on an objective sense, reasonable. It does not have to be flawless.

Applicant’s submissions
[57] [2022] NSWPICPD 49, Van Vliet.

The applicant submitted that Hamad requires, in circumstances such as this matter, where there are a number of factors contributing to the injury, it requires expert opinion to establish the whole or predominant cause. It was argued that the respondent submitted that the whole or predominant cause was the events form 29 March 2022. The applicant says this case has a fundamental flaw because no one says that the events of 2022 are the whole or predominant cause of the psychological injury.
The applicant’s counsel observes that some of the questions posed to Dr Young are not a very helpful statement of the law, but in any event, Dr Young accepts that causation is mixed and in relation to the concept of wholly or predominant the doctor refers to the stress associated with interaction with his managers regarding his performance, actions following complaints and feeling discriminated against by being passed over for promotions. Counsel submits the reference to performance is not the same as performance appraisal and the respondent does not submit to the contrary. Counsel submits it is evident that Dr Young identifies a selection of matters and when later pressed Dr Young says the predominant cause relates to the investigation, performance appraisal and disciplinary matters resulting from the complaint in 2021.
The applicant submits that, therefore, the respondent does not actually have an opinion that the whole or predominant cause was the meeting on 29 March 2022 and the sequelae.

It is submitted that the injury had occurred by 25 March 2022 because the applicant had attended his doctor that day and the entry referred to complaints of worsening anxiety and stress and the doctor recorded the applicant attributed this to the 2021 investigation and repeated bullying. Counsel submitted that as at 25 March 2022 the applicant had been diagnosed with an anxiety disorder and that this was before he was aware of the complaint against him. It was submitted that Inspector Jobson in his statement does not suggest that the applicant knew of the complaints they raised in the meeting on 29 March 2022 beforehand.
It was also submitted that the applicant’s email about being bullied was sent before the meeting on 29 March 2022.
The applicant’s counsel submitted that it is not relevant whether the criminal charge and conviction was significant and traumatic because the relevant question is the causation of injury and the fact is that the injury crystalised by 25 March 2022. Counsel says it may have been aggravated by the subsequent events but he argues that is a matter for a Medical Assessor to consider.
It was submitted that the relevant events are those set out by the applicant in his first statement. I have already found above those events did occur.
In relation to the investigation in 2021, the applicant submits there is no evidence this was reasonable. It did not lead to disciplinary action. I find that while it may have been reasonable for the respondent to conduct an investigation it was not reasonable for Chief Inspector Webber to be asked to remove the reference he made to the conversation had with the complainant, Senior Constable Wolsey, that tended to show she was not certain that the applicant had in fact punched the offender in the face as was first alleged.
The applicant relies upon the opinions of the psychologist, Ms Metelerkamp, and
Dr Belthikiotis that the cause of the psychological injury was multifactorial.
It was submitted that the respondent had not discharged its onus of proof of establishing the injury was wholly or predominantly caused by reasonable action in respect to discipline or performance appraisal. In the event this is not accepted the respondent says the applicant went to the meeting on 29 March 2022, having expected it was about his emailed complaint of being bullied only to be told of two complaints about him and he was confronted with an interim risk management plan. It was argued that if the respondent’s submission is to be entertained that this was significant with respect to discipline then one would have thought it was exactly the circumstance which warranted a support person or even a legal advisor.
Counsel referred to Inspector Jobson’s characterisation of the meeting as “a rudimentary management meeting”. This was said to justify no support person being present. However, after this meeting they removed the applicant’s firearms, without even seeking medical advice whether this was warranted. For these reasons, the applicant submits this conduct in relation to holding the meeting without a support person and the subsequent removal of firearms was not reasonable conduct by the employer.
The applicant also relies on Dr Bertucen’s opinion that the whole or predominant cause of injury was the entirety of the events complained of by the applicant.
Finally the applicant submitted that the respondent’s reliance on Ms Cullen’s opinion is misplaced. I have already found this above. The applicant submits that what Ms Cullens was stating was the applicant had a psychological condition that existed before the index events and contributed to the behaviour which became the subject of the criminal proceedings.
In summary the applicant submitted that the s 11A defence had not been proved by the respondent and the lump sum claim should be referred to a Medical Assessor.

Respondent’s submissions in reply

The respondent challenged the applicant’s submission concerning Dr Young’s opinion and says the doctor was specifically asked questions about the predominant cause of the injury and the answers by relating it to the disciplinary action in relation to complaints and the 2021 investigation and the further complaint and investigation and placement on IRMP on March 2022. The respondent submits if the Commission takes a commonsense approach while there may have been an issue in 2021 the reality is things proceeded pretty much after the March 2022 events.
In relation to the applicant’s argument that the injury had crystalised by 25 or 26 March 2022 and the criminal charges etc were irrelevant, the respondent argues that contention is not really available on the contemporaneous evidence because the applicant had the perfect opportunity to set out the details on 1 April 2022 on the P902 form and he did not.
In relation to Inspector Jobson characterising the meeting on 29 March 2022 as a rudimentary management meeting, counsel says it nonetheless was discipline because the IRMP was put in place. The meeting was part of a disciplinary process.
In relation to the applicant’s submissions about Ms Cullen’s reports the respondent submitted that she was reliant on what the applicant said and it was a self-serving report.

Determination

I do not accept the tenor of the applicant’s submissions that the matter is as simple as considering that the psychological injury had crystalised on 25 March 2022 and the meeting on 29 March 2002 and sequelae may well be a separate injury, and that it is not a matter for me to consider.
In the consultation on 25 March 2022 the diagnosis was “stress from job, anxiety disorder”. However, sleep was noted to be normal. It is significant that the applicant was able to keep working. He had not been diagnosed then with an adjustment disorder.
By 1 April 2022 the doctor diagnosed moderate depression, moderate anxiety and stress and significantly he could not return to work. By 13 April 2022 Ms Metelerkamp reported the applicant’s sleep was very poor and his functioning was so poor for her to recommend an inpatient stay in hospital so he could see a psychiatrist sooner.
The applicant’s own statement refers to the effect the meeting on 29 March 2022 had on him. He says he felt emotionally vulnerable, worthless, unwanted, overwhelmed, at breaking point, in disarray, physically sick, and his legs would not stop shaking.
Dr Bertucen found the predominant cause was the hazing and bullying behaviours from March 2021 to March 2022 with the final culminating factor being in March 2022 when he was made aware of a new complaint against him instead of (as he expected) entering a meeting to have his complaints addressed.[58]
[58] ARD p 304.
I accept Dr Bertucen’s opinion. It includes the meeting on 29 March 2022 as the culminating factor giving rise to the psychological injury. I find this is consistent with the applicant’s own description of the meeting on him and how his functioning deteriorated after the meeting such that he was unable to work.
The only doctor to consider whether there was a separate injury is Dr Young and he was of the view there was not.
I consider Ms Cullen’s opinion should also be afforded weight because she has provided a detailed consideration of the applicant’s condition. However, I do not accept the respondent’s characterisation of her opinion for the reasons expressed earlier and I accept the applicant’s submissions that Ms Cullen found the effects of the earlier bullying events and investigation in 2021 were continuing to the time the applicant committed the offences that he was later charged with.
I find this is a matter where the principles discussed in Hamad have application. There are many potentially causative events, and not all of them fall within the categories in s 11A, therefore the Commission does need expert opinion to provide evidence about the whole or predominant cause of the psychological injury. It is the respondent’s onus to discharge and I am not persuaded that they have discharged their onus. Because of Dr Bertucen’s evidence and that of Ms Cullen, that the cause of the injury was multifactorial, I cannot make a finding that the “whole” cause of the injury fall within “discipline”. I am not going to refer to performance appraisal as the respondent disavowed reliance on that aspect of s 11A.
That leaves one to consider what is the “predominant” cause of the injury. I do not accept the respondent’s submission that as a matter of commonsense it must be the meeting on
29 March 2022. I find a significant feature of that meeting was the applicant expressing his concern and telling Superintendent Jobson he was not going to put up with what had happened to him after the earlier complaint when snide remarks were made and he was going to talk to his solicitor about this. Superintendent Jobson confirms the applicant raised this and states he said he would shut down any comments being made. I find this supports Ms Cullen’s opinion and that of Dr Bertucen that the earlier investigation and the snide remarks stemming from it such at the gift of a jail toiletries bag at the 2021 Christmas party and the comments if he wore green that it was prison garb etc had taken their toll on the applicant. This is consistent with the statement of S/Constable Alexander. I find that
Dr Young has not given sufficient consideration to the continuation of the effect on the applicant of the snide remarks or hazing he experienced after the 2021 investigation. Therefore, I prefer the opinion of Dr Bertucen to that of Dr Young.
The applicant said he was not fazed about the complaints raised in the meeting on 29 March 2022. I accept this. At that stage, there was no suggestion these complaints were going to be dealt with criminally. The initial investigation was non-criminal. It was not conveyed to the applicant until 2 June 2022 when Detective Sergeant Atkins informed him the investigation was now going down he criminal path. I do not accept the respondent’s submission that the applicant would have known on 29 March 2022 that he could have been charged and potentially faced the prospect of jail. Inspector Jobson does not relate that the applicant was concerned about the charges per se. He did however exhibit distress at being placed on the IRMP. Inspector Jobson stated he seemed hesitant to sign it and the applicant’s own statement refers to his distress at this action by his employer.
However, I find that the predominant cause of the psychological injury was not just the IRMP but also the way he had been treated in the past with hazing after the 2021 investigation. In Hamad it was acknowledged that “a series of events can have a cumulative effect, and may be causative of a psychiatric condition which does not manifest itself until a later time. That does not mean that the earlier events in the series are not causative.” I find that is what has occurred in this case, as Ms Cullen found that the symptoms of the earlier events were continuing into 2022. This is consistent with Dr Bertucen’s opinion and consistent with the applicant’s complaints to Dr John on 25 March 2022 and his email to his employer on
26 March 2025.
There is no evidence before the Commission that the applicant knew on 25 March 2022 of the further complaints that had been made.
The respondent submitted that the criminal charges are more significant that the past hazing however, I find that the psychological injury had already developed before the criminal charges and court hearings were underway, and as I have found before Detective Sergeant Atkins told the applicant on 2 June 2022 the matter was going down the criminal investigation path. The deemed date of injury pleaded is 1 April 2022 which is appropriate as the date of first incapacity.
I find the evidence supports the predominant cause of the injury was both the sequelae of the 2021 investigation with the continued hazing of the applicant and the imposition of IRMP on 29 March 2022. The hazing does not come within discipline in s 11A even though the imposition of the IRMP does. Therefore, I find that the respondent has not established the s 11A defence and the applicant is entitled to have his lump sum claim remitted for assessment by a Medical Assessor and a general order made for s 60 expenses.
The applicant sought an uplift for their costs due to the complexity of the matter. I consider the matter is complex and I determine that both parties should have an uplift for their costs by 20%.

[2025] NSWPIC 108

25 March 2025