Inman v NSW Police Force - [2013] NSWWCCPD 11

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	AP v NSW Police Force [2013] NSWWCCPD 11
APPELLANT:	AP
RESPONDENT:	NSW Police Force
INSURER:	Employers Mutual Ltd
FILE NUMBER:	A1-4020/12
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:	27 September 2012
DATE OF APPEAL HEARING:	19 February 2013
DATE OF APPEAL DECISION:	6 March 2013
SUBJECT MATTER OF DECISION:	Psychological injury; causation; disease; aggravation of disease; application of principles in State Transit Authority (NSW) v Chemler [2007] NSWCA 249; 5 DDCR 286; Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566 and Stewart v NSW Police Service (1998) 17 NSWCCR 202 distinguished
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr P Stockley, instructed by Carroll & O’Dea
Respondent:	Ms E Wood, instructed by Bartier Perry
ORDERS MADE ON APPEAL:	The determination of 27 September 2012 is revoked and the following orders made: 1. The applicant worker suffered a disease injury under s 4(b)(i) of the Workers Compensation Act 1987 in that she contracted a disease in the course of her employment to which her employment was a contributing factor. 2. The applicant’s employment was a substantial contributing factor to the injury. 3. The deemed date of injury for the s 4(b)(i) injury is 22 September 2011. 4. The applicant suffered an aggravation injury under s 4(b)(ii) of the Workers Compensation Act 1987 to which her employment was a substantial contributing factor. 5. The deemed date of injury for the s 4(b)(ii) injury is 4 November 2011. 6. The respondent is to pay the applicant’s costs of the arbitration on 24 August 2012. 7. The arbitration on 24 August 2012 is certified complex for the purposes of Schedule 6, Table 4, Item 4, of the Workers Compensation Regulation 2010 and there is a 30 per cent increase applied to the costs applicable to each party. 8. The matter is remitted to a different Arbitrator for determination of the applicant’s entitlement to weekly and other compensation, and any other outstanding issues. The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,530 plus GST.

INTRODUCTION

The appellant worker, a Senior Constable with the NSW Police Force, (the appellant), claimed compensation for a psychological injury alleged to have been caused by difficulties coping with work, the suicide death of a fellow police officer (Ms AQ), lack of support from fellow workers, and harassment by supervisors.
Though provisional liability was accepted, and compensation paid until 26 April 2012, the NSW Police Force’s insurer denied liability in a s 74 notice, dated 12 April 2012, on the grounds that:
(a) the appellant had not suffered a psychological injury because the death of a co-worker was not compensable within the definition of injury in s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(b)     if the appellant suffered a psychological injury, employment was not a substantial contributing factor to that injury;
(c)     no bullying or harassment occurred, and
(d)     if employment was a substantial contributing factor to the injury, the Police Force acted reasonably with respect to “discipline” and any response to that action was not compensable pursuant to s 11A of the 1987 Act.
Counsel agreed that the appellant suffered from a psychological condition (either post-traumatic stress disorder with depression, a major depressive disorder, severe anxiety and depression, or chronic adjustment disorder with depression) and remained totally unfit for work from 26 April 2012 (the date from which weekly compensation was sought) until she resumed work for a half-a-day per week on 17 August 2012.
The main issue in dispute before the Senior Arbitrator was whether the appellant had received an injury within the meaning of s 4 of the 1987 Act, it being acknowledged that Stewart v NSW Police Service (1998) 17 NSWCCR 202 (Stewart) is authority for the proposition that a psychological condition resulting solely from the death of a close friend, who was also a work colleague, does not constitute an injury arising out of or in the course of a worker’s employment.
The matter proceeded to arbitration on 24 August 2012. Mr Stockley, of counsel, appeared for the appellant and Ms Wood, of counsel, appeared for the NSW Police Force (the respondent). Neither side called any oral evidence and the matter proceeded with oral submissions.
The Senior Arbitrator held that the suicide of Ms AQ was the “ultimate” or “principal” cause of the appellant’s psychological condition and, because the case fell “squarely within the principles established in Stewart”, that condition was not an injury arising out of or in the course of employment. Any perceived hostility, harassment or lack of support from supervisors was a result of the appellant’s increasing feelings of guilt and distress over Ms AQ’s death and the particular events complained of were “innocuous” events that may have increased the appellant’s depressive illness but did not cause it. She made an award in favour of the respondent.
The appellant has appealed that decision. Her main complaints are that the Senior Arbitrator erred in considering the “ultimate” and “principal” cause of the psychological condition, in failing to give proper consideration to events other than the death, and in failing to distinguish Stewart.

PRELIMINARY MATTER

Due to an equipment malfunction, there is no transcript of the arbitration proceedings. In a direction issued on 12 December 2012, the Commission directed the parties to make submissions on the effect, if any, the absence of the transcript has on the appeal and how the parties wished to proceed.
The respondent’s solicitor submitted that, in the event that the Commission finds that the decision “was the product of error of law, fact or discretion” the parties should be afforded the opportunity to make further oral submissions in any re-determination of the matter on appeal or before a different Arbitrator.
At the oral hearing of the appeal, Mr Stockley again appeared for the appellant and Ms Wood again appeared for the respondent. Neither counsel suggested that the lack of a transcript impeded the appeal process.

BACKGROUND TO THE CLAIM

The appellant joined the NSW Police Force in April 2004 and is currently a Senior Constable. At all times relevant to the current claim, she has been attached to the Campbelltown Local Area Command. In her Application to Resolve a Dispute (the Application), it was alleged that she suffered a psychological injury on 4 August 2011. The application alleged that her injury occurred as follows:
“During employment with the Respondent – increased difficulties coping with work pressures and the death of a fellow worker. No support from fellow workers as a result, and harassment from supervisors within the work place.”
These “pleadings” are unsatisfactory and give little useful insight into the alleged cause of the claimed psychological injury. Notwithstanding that fact, Ms Wood conceded that, at the arbitration, the appellant had relied on events at work in 2006 and 2008 and on other events that had not been specifically referred to in the Application. Given this concession, and given that cases are determined on the evidence and not on the pleadings (Dawson J in Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 (Banque Commerciale) at 296–7), the inadequate pleadings are not fatal.
To understand the claim and the Senior Arbitrator’s decision, it is necessary to look at the background to the claim in detail.
Problems first arose in January 2006, when Inspector Bryan Doyle told the appellant she was to be investigated in relation to the conduct of her stepbrother, who had been charged with criminal offences, and that she may face charges. She felt traumatised by this, but was not offered a support person. She said that the police made her feel like a criminal.
A few days later, she was interviewed at the Professional Standards Command. She was placed in custody and read her rights. She felt intimidated, scared and shocked. After five hours of questioning, she was released. She then travelled to her mother’s house and stayed the night, crying, shaking and upset.
A few months later, Inspector Doyle handed the appellant a s 181D notice pursuant to the Police Act 1990 (an application to the Commissioner for an officer to be dismissed). Though she felt devastated, and had no support person or assistance, she did not stop work.
In early 2008, the respondent secretly investigated the appellant for allegedly associating with an outlaw motorcycle gang in breach of the NSW Police Code of Conduct. Having been tipped off about the investigation, the appellant spoke to Superintendent Stuart Smith in a very worried and panicky state on 28 February 2008. She was assigned a welfare person, Senior Constable Rachel Grima, and offered the support of the EAP (the Employee Assistance Program), which the appellant had used in the past but found unhelpful.
The appellant was “extremely distressed” about the investigation, as she had done nothing wrong. She wanted to resign on the spot because she knew this recent matter was completely wrong. It felt like a “slap in the face”.
The appellant had worked hard to get into the Police Force and excelled at her job. She said she had “put everything into completing the training and enabling course”. (Having left school in year nine, the appellant had to complete the enabling course before she could enter the Police Force.) Her mother sold her car so she could afford to put her through.
The appellant stopped work on 28 February 2008 and submitted a notification of injury form on the same day, accompanied by a WorkCover certificate from her general practitioner, Dr Anastasia Ruff, which certified her unfit because of anxiety due to “constant harassmentand [sic] restrictions on private affairs Constant surveillance” (punctuation as per original).
On 7 March 2008, the Commissioner determined that the s 181D application would not be pursued. However, Superintendent Smith told the appellant on 11 March 2008 that the matter would be remitted to the Internal Review Panel for consideration of s 173 reviewable action. On the same day, she was also informed that the second investigation relating to her having associated with an outlaw motorcycle gang was also thrown out, as there was nothing to substantiate the allegations.
Though the allegations were thrown out, the appellant would still have it noted on her record that she received “advice and guidance”, when she believed there should not have been any investigation. She felt she was being pushed to go back to work because the matter was completed, but she had lost trust and faith in other officers.
A clinical psychologist, Annie Hartley, saw the appellant on 12 March 2008 and prepared a pre-liability report for the insurer on 18 March 2008. She diagnosed the appellant to have an adjustment disorder with mixed anxiety and depressed mood, acute, as per DSM-IV. Consistent with that diagnosis, the appellant reported significant symptoms of anxiety and depression in reaction to work stressors, which caused significant impairment in her occupational functioning. Though the appellant had suffered from depression and anxiety in the past (due to a sexual assault at age 14), Ms Hartley thought that the current psychological injury was not an aggravation of a pre-existing condition. It was likely, however, that the appellant’s childhood trauma increased her vulnerability to symptoms of psychological distress.
The appellant saw Dr Ruff on 19 May 2008. She said she had been spoken to by Brian Doyle (presumably Inspector Doyle) and told that she was “weak and to reconsider police work”. This upset her and she felt “put down”.
By letter dated 4 June 2008, the respondent’s insurer denied liability for the claim on the grounds that the “industrial factor of discipline has been identified as the predominant factor to your injury”. This decision was not challenged in the Commission and the appellant returned to work after three months.
Later in 2008, the appellant and another officer, Constable Murray, witnessed a police officer assault a person. They reported the incident to the duty officer. The officer who allegedly committed the assault approached the appellant several times to get her to lie about the incident. She felt intimidated and scared, and reported the matter to Inspector Grady. While she was not approached again, on her next shift she heard other officers calling her a dog. The appellant was stressed and depressed that the officer concerned was demoted for only 12 months. She stayed at Campbelltown, feeling traumatised and trapped, with constant harassment and name-calling.
On 3 June 2010 (wrongly stated to be 2 June 2010 in the evidence and submissions), a close friend of the appellant’s, Ms AQ, also a police officer stationed at Campbelltown Police Station, committed suicide. The appellant was extremely distressed by this event and said that she did not receive any counselling or support from the respondent or, in particular, from her supervisors, Senior Sergeant Lucy Liddiard and Sergeant Sandra Nicol, who she alleged also bullied and harassed her.
The circumstances leading up to the suicide are significant. On the afternoon of 2 June 2010 (wrongly stated to be 1 June 2010 in the evidence and submissions), Ms AQ walked into the area of Campbelltown Police Station where the appellant was performing her duties as an intelligence officer and spoke to the appellant about a personal matter that had upset her. Ms AQ placed her police issued pistol and ammunition magazine on top of the television in the middle of the room. Because of the unusual silver casing of the bullets, which the appellant had not seen before, she picked up the magazine, placed her thumb on the top bullet, and moved it back and forth. Ms AQ snatched it off her and put it back on the television. Ms AQ left shortly after. The appellant sent Ms AQ a text message at about 5:30 pm to see how she was. Ms AQ replied that she was devastated over the personal issue but would be okay.
At 5:30 am on 3 June 2010, the appellant was preparing to go to work when she checked her mobile phone and saw a message from a Constable Jones asking if she had Ms AQ’s address because she had threatened to kill herself. The appellant arrived at work at 6.00 am and spoke to Constable Jones, who had not been able to contact Ms AQ. The appellant started to panic and was worried if Ms AQ was okay.
A short time later, Senior Sergeant Liddiard came into the office crying. She said that Ms AQ had taken her life with her police issue pistol. The appellant ran outside crying. She was unable to do any more work during the shift, but just sat at her desk in “shock and grief”. She remembered that she had touched the bullet with which Ms AQ may have killed herself and was “very upset and depressed”.
The appellant was also upset, depressed, and angry with herself because she believed that she could have prevented Ms AQ’s death by helping her more or recognising the signs of her depression. She also felt that she could have worked harder to get Constable Jones removed, as it was (in her view) the actions of Constable Jones in the personal matter, and in the workplace, that led to Ms AQ’s death.
The appellant was unable to talk to anyone and no one provided her with support. Her mind was racing with thoughts of what she could have done to save Ms AQ. She joined the Police Force to save people and to protect them from harm, but could not help a close friend. The incident was traumatic and stressful and she just wanted to leave work and go home.
Just after lunch on 3 June 2010, the appellant was leaving work to go home and Senior Sergeant Liddiard told her she had to stay to do a statement, because the homicide squad wanted to obtain statements about Ms AQ’s death. The appellant requested that she do it another day, because she did not want to relive what had happened, but Senior Sergeant Liddiard said it would not take long. As she felt she would be in trouble if she did not provide the statement, she returned and waited for the homicide detectives to interview her and take her statement.
The appellant said the respondent gave her no professional counselling or assistance at that stage and she felt that doing the statement so soon without getting professional counselling and support made it worse. (Senior Sergeant Liddiard said that she was “sure” the appellant spoke with a counsellor on the day of the suicide.) She felt as if she was the one responsible and that she had personally aided the suicide of Ms AQ. She said that her “fingerprint was on the bullet that entered [Ms AQ’s] head and blew her brains out”. She struggled to sleep and kept going over the event in her mind. She said:
“I had dreams during the night where I saw the bullet I had played with and also saw [Ms AQ] laying on the ground with blood everywhere and her [sic] half her head missing.”
On 3 June 2010, she entered in her duty book “LSC [AQ] Died – xxoo – start 7:00am finish at 5:40pm. Statement provided to CI team”. The appellant said that this was the day on which she found out about Ms AQ’s death. (If this is correct, and the parties agreed on appeal that it was, the events described in the evidence and submissions as having occurred on 1 and 2 June 2010 occurred one day later, as I have noted above and throughout this decision).
On 4 June 2010, the appellant attended work at 7:00 am. She felt depressed and upset when she walked into work, as that was where she had last seen Ms AQ alive. She did not do much work because she was upset and traumatised. People from the EAP attended the station and she spoke to them twice during the day. They provided no help to her and did not change how she felt. She thought they were just speaking to her to “tick a box” and cover the employer’s back. She struggled to do her work and looked forward to her two upcoming rest days. The “workplace was bringing back too many memories”.
After her rest days on 5 and 6 June 2010, she returned to work at 7:00 am on 7 June 2010 and met Ms AQ’s family at the police station at 8:00 am. She stayed with them as a support person while detectives took statements from them during the whole of her shift. As a result, she was made aware of personal information about Ms AQ and she felt more upset and depressed. At no time did Senior Sergeant Liddiard, or any other officer, ask if she was okay or recommend that she not act as a support person for the AQ family. When she left work, she felt upset and depressed. She felt the AQ family thought that she could have done more to help their daughter. She went home and cried, and struggled to sleep.
On 8 June 2010, the appellant attended work at 7:00 am. At 2:00 pm, she attended the St John’s Catholic Church, Campbelltown, for a funeral practice for Ms AQ’s service with other police. The practice was with an empty coffin. The police protocol officer said, “[r]emember today it’s light, and tomorrow it will be heavy”, which upset the appellant and made her feel sick. She felt alone, “as they [her supervisors] did not care about [her] welfare”. After the practice finished at 4:30 pm, she returned to the station and completed her shift. She asked Senior Sergeant Liddiard if she could take leave on 10 June 2010 because she was not coping with Ms AQ’s death.
On 9 June 2010, the appellant arrived at work at 7:00 am and left at 7:45 am with other police to go the funeral, where she was a pallbearer. She felt sad, upset, depressed and traumatised from carrying the coffin. She said that she had “only a week earlier touched the bullet that put [Ms AQ] in the coffin” she carried. The service concluded at 12:00 midday and she attended the wake at Campbelltown RSL Club.

The appellant took annual leave on 10 June 2010 because she was so depressed and traumatised by the death and by carrying the coffin. She took a sick day on 11 June 2010 and had three (rostered) rest days on 12, 13 and 14 June.
Though the appellant was due to return to work on 15 June 2010, as she was not coping, she rang Senior Sergeant Liddiard on 14 June and asked for annual leave on 15 June. Though Senior Sergeant Liddiard granted that request, she was not happy and, according to the appellant, seemed to be more worried about coverage in the department than about her welfare.
On 15 June 2010, the appellant received a phone call from Superintendent Smith, her former Local Area Commander. He asked how she was going and told her that she needed to get back to work and see a psychologist. No arrangements had been made by the respondent for her to see a psychologist and she was still upset. Though she did not feel any better, and no one provided support, feeling “extreme pressure to be back at work and that [she] was unable to grieve”, she returned to work on 16 June 2010.
The appellant’s problems with her supervisors appear to have commenced with Senior Sergeant Liddiard on 16 June 2010. On her return to work on that day, she saw that her duty book, in which she had noted Ms AQ’s death, was open at the entry for 3 June 2010 and Senior Sergeant Liddiard had written at the bottom of the page:
“Checked 16/6/10. Need more detail in some of your entries. Entry on this page is not appropriate. You are now 13 days behind. More attention required.”
This criticism that the entry about Ms AQ’s death was “not appropriate” caused the appellant to feel “extremely upset and traumatised”. When she confronted Senior Sergeant Liddiard about the entry, she had a panic attack and started shaking. She felt harassed and intimidated by Senior Sergeant Liddiard’s conduct. She felt responsible for Ms AQ’s death and that she was not getting any support from work or from her direct supervisor, Senior Sergeant Liddiard.
Senior Sergeant Liddiard explained to the appellant that checking her duty book was a supervisory function and not a personal attack. She talked to her about the death and said that, if she could not cope, she needed to take some time off. Senior Sergeant Liddiard said that the appellant had indicated that she believed Senior Sergeant Liddiard did not care. Senior Sergeant Liddiard tried to explain that she could not fall apart, as she was “trying to hold the Unit together” and it helped her to stay busy and to focus on work. She again discussed EAP with the appellant, but the appellant was “fairly negative about the EAP”. Notwithstanding that negativity, Senior Sergeant Liddiard made a follow-up call to Greg Prescott from EAP and informed the crime manager.
A typed memo from Stuart Smith, a fellow police officer, to the applicant dated 17 June 2010, noted that the applicant was “still struggling to come to terms with what happened to [Ms AQ]” and urged her to “focus on your job” and “remember the good things”.
The appellant’s nightmares continued and her depression got worse. Seeing a photo and a plaque at work in memory of Ms AQ reminded her of the death.
On 12 July 2010, the appellant saw Dr Ruff with left-sided chest pains radiating into the left arm. Her sister had recently had a “pulmonary emboli [sic]” and the appellant was stressed and worried “re her condition”. Dr Ruff referred the appellant to a specialist.
The appellant saw Dr Ruff again on 14 July 2010. Dr Ruff recorded that the chest pains were persisting and that the appellant was still not sleeping. She was to see a specialist the following week.
On 3 August 2010, the appellant saw Dr Ruff who recorded:
“Difficulty sleeping Woke with chest pain in night – burning pain ans [sic] tachycardia Started Lexapro 2 days ago Not coping well Co-worker suicided recently” (punctuation as per original)
The notes added that Dr Ruff created a referral letter to Dr Angelo Virgona.
On 12 August 2010, Dr Ruff recorded that the appellant was having difficulty getting to see a specialist. Dr Ruff added, “[p]anic attacks persist”.
In late May 2011, the appellant asked Senior Sergeant Liddiard for annual leave for her rostered shift on 2 June 2011 because it was 12 months since Ms AQ had died. Senior Sergeant Liddiard replied that she could have the day off “but just get over it, as you won’t be able to have the day off every year”. This made the appellant feel upset and intimidated. She felt that Senior Sergeant Liddiard appeared to have no emotion towards the matter and had no concern for her welfare.
Over the next few months, the appellant tried to do her job. She considered herself a “good cop” and had received numerous awards for her police work. However, she was still suffering from depression and anxiety and had not received any support from the respondent. The dreams continued, and her depression and trauma got worse.
The appellant contacted Senior Sergeant Liddiard by telephone on 27 July 2011 (it being the appellant’s day off) and disclosed a conflict of interest relating to conduct by her sister. Senior Sergeant Liddiard advised the appellant to complete a report. The appellant was upset about the situation, which I will refer to as the conflict of interest incident.
On her return to work on 28 July 2011, the appellant told Senior Sergeant Liddiard that she (the appellant) would submit a report (about her sister), but later changed her mind. As Senior Sergeant Liddiard was aware of the information, she (Senior Sergeant Liddiard) had no option but to submit a report herself, but told the appellant not to worry. Notwithstanding the appellant’s earlier statement, she submitted the report later that day with assistance from Inspector Grady.
On 29 July 2011, the appellant saw Dr Ruff, complaining of stress from her sister’s behaviour that put her in an awkward situation. She had sorted it out with work, but left work at 12:30 pm on 28 July due to a migraine. She was feeling better that she had resolved the situation.
At 6:15 am on 1 August 2011, Senior Sergeant Liddiard spoke to the appellant to check on her welfare in relation to the issues with her sister and the conflict of interest. She asked how she was coping with work and whether she was happy to continue with supervisory duties (which she had commenced on 25 July 2011 to replace Sergeant Hurst while he was on leave) while she was dealing with these issues (relating to her sister) and whether she wanted to make any changes. The appellant said she was fine with everything. At 7:55 am, the appellant said that she would be applying for a position on secondment as an Intelligence Project Officer and no longer wanted to act in the supervisory role.
Senior Sergeant Liddiard spoke to Detective Inspector Albury, the unit’s crime manager, about the appellant’s proposed secondment and he said that, because of critical staffing issues, he would not support it. When Senior Sergeant Liddiard told the appellant of this, the appellant allegedly said, “[i]f I stay here I am going to crack and then I will go off sick. I am sick of it here I am not valued at all”. Senior Sergeant Liddiard told her that she had been supported in her application for the supervisory role and offered her the support of the EAP.
In early August 2011, the appellant spoke with Senior Constable Grima about how she felt. She was crying and shaking, and made references to death. Because she was worried about the appellant’s welfare, Senior Constable Grima saw Detective Inspector Albury to request that the appellant’s firearm be double padlocked.
The appellant worked on 2 August 2011 and requested annual leave from Detective Inspector Albury. He described her as “emotional, frantic asking for help”. She declined to discuss personal issues, declined EAP, or assistance from the police chaplain. He granted her application for leave and discussed coping strategies and using leave effectively, to get counselling, and to address personal issues.
The appellant returned from leave on or about 14 September 2011.
At about this time, the appellant referred herself for counselling with Jackie Burns, the clinical psychologist from whom she received counselling after the sexual assault.
On 15 September 2011, the appellant saw Dr Ruff complaining of increasing depression and anxiety, difficulty concentrating, and feeling stressed. On the same day, Senior Sergeant Liddiard and Detective Inspector Albury conducted a risk of suicide assessment of the appellant and determined her to be a medium risk. As a result, her firearm was double padlocked.
On 20 September 2011, Detective Inspector Albury told the appellant that she would be on restricted duties until she was feeling better. Once her doctor cleared her, she would need to see the police medical officer before returning to full operational duties. The appellant saw Dr Ruff that day complaining of “work problems” and that she found restricted duties “stifling”.
On 22 September 2011, Dr Ruff saw the appellant and recorded that she had difficulty staying at work. She was crying, had anxiety attacks, was not coping, and had some suicidal thoughts. Dr Ruff issued an initial WorkCover certificate certifying the appellant unfit from that date until 10 October 2011 because of anxiety and depression. Under “How the injury occurred”, Dr Ruff recorded:
“Fellow officer committed suicide on 2/6/2010 Increasing problems coping with this Harrassment [sic] at work from 4th August, 2011 by supervisors especially regarding coping with the above suicide” (punctuation as per original)
In a file note prepared by Detective Inspector Albury on 23 September 2011, he recorded that the appellant said in a telephone conversation with him on 22 September that she had personal issues mostly, but had a recurring work-related issue from 2008.
The appellant also spoke to Senior Sergeant Liddiard by phone on 22 September 2010. She said her doctor had issued a WorkCover certificate. Senior Sergeant Liddiard said she needed more information to be able to submit the necessary form and the appellant said that it related to a previous psychological injury suffered in 2008, relating to Inspector Doyle, and that she had a recurrence of previous symptoms.
The appellant was stressed at having to see the police medical officer and losing her position in intelligence. Senior Sergeant Liddiard assured her that that was not the case and there was nothing to worry about in that regard. At the end of the conversation, the appellant said that she hated her family and that it was “all their fault”. Senior Sergeant Liddiard said that the appellant was clearly distressed. She checked on her welfare, offered support and asked about her plans for the day.
On 23 September 2011, Detective Inspector Albury attended the appellant’s home with Acting Inspector Walsh. In his file note of that date he recorded, among other things, that the appellant said she had panic attacks at home, and at work, though “more so at work”.
On 29 September 2011, Detective Inspector Albury gave the appellant a recurrence of work-related injury form (the recurrence form) and said he wanted to speak with her to “identify triggers in the workplace given her two panic attacks a short time after returning from breaks”.
The appellant completed the recurrence form on 30 September 2011. In response to the question “How does this recurrence relate to your original injury/illness?”, she wrote:
“On 4/8/2011 I was approached by a Senior Officer and Directed to complete a report for a conflict of interest, this has made me upset and Depressed and brought back previous thoughts. This relates to my previous injury in 2008. Also trying to deal with a college’s [sic, colleague’s] suicide in 2009 [sic, 2010].”

She added that she was suffering from depression and anxiety attacks caused by “[t]he harassment of completing a report, brought back my depression and fear and anxiety”. The incident referred to as having occurred on 4 August 2011 probably occurred on either 28 July or 1 August 2011 and has been described above at [56]–[58].
On 10 October 2011, Dr Ruff recorded that the appellant’s anxiety was slowly settling and had reduced to two panic attacks daily. She was feeling better and was to try returning to work two days per week.
Liability in respect of the recurrence form was declined in a s 74 notice dated 11 October 2011 on the ground that liability for the injury on 28 February 2008 had been declined and, as a result, the recurrence could not be accepted.
On 11 October 2011, the appellant’s first day back at work after Dr Ruff had certified her unfit on 22 September 2011, Senior Sergeant Liddiard spoke to her about the fact the appellant had defaced a photo of Senior Sergeant Liddiard’s daughter, something the appellant admitted she had done. Senior Sergeant Liddiard told the appellant that, regardless of whether it was intended as a joke (as the appellant stated), she regarded the action as nasty and vindictive. According to Senior Sergeant Liddiard, the appellant responded angrily that the issue was raised on her first day back at work. Senior Sergeant Liddiard told the appellant that she had crossed the line and asked her not to touch her personal things again.
The appellant failed to attend a management meeting at 8:00 am on 11 October 2011, when she was to present the overnight crime review. Senior Sergeant Liddiard spoke to Detective Inspector Albury and the duty officer, Inspector O’Meara, about the meeting she had that morning with the appellant (about the photo) and the fact that there was probably a need to reinforce her duties and to ensure that she was able to carry them out.
Inspector O’Meara and Senior Sergeant Liddiard spoke with the appellant on 11 October 2011 about her duties. Senior Sergeant Liddiard said that the appellant displayed a “hostile attitude”. They then discussed the conversation the appellant had earlier that morning with Senior Sergeant Liddiard about the photo. The appellant reiterated her point about the timing of the conversation, namely, on the appellant’s first day back after leave. When Senior Sergeant Liddiard tried to put her point across, the appellant started shouting and did not allow her to talk. The appellant allegedly said, “you need to get a fucking sense of humour”. Senior Sergeant Liddiard asked if the appellant would be able to work with her as her supervisor. According to Senior Sergeant Liddiard, the appellant “stormed out” of the office. When Inspector O’Meara called her back, she yelled, “I don’t even want to talk to her”, and she left the office. Inspector O’Meara and Senior Sergeant Liddiard considered that the appellant’s behaviour was unacceptable.
On 13 October 2011, Senior Sergeant Liddiard asked to check the appellant’s duty book. The appellant asked if she could do it in a minute. Later, Inspector O’Meara said he would check the appellant’s duty book, as she did not want Senior Sergeant Liddiard to see it. Senior Sergeant Liddiard then commenced four weeks leave and Sergeant Nicol became the appellant’s supervisor on 17 October 2011. At that time, the appellant worked Tuesdays and Thursdays, as per medical certificates from Dr Ruff.
Sergeant Nicol had been friends with the appellant from late 2006 until their friendship broke down in mid-2007. Sergeant Nicol spoke with the appellant on 18 October 2011 to make sure that she understood Sergeant Nicol’s expectations.
On 24 October 2011, Dr Ruff recorded:
“Has seen solicitor Has found out that initial claim was rejected in 2008 Harassed by superior on first day back at work Finding it difficult to stay at work To try 2 consecutive days [at the] end of [the] week after seeing councellor [sic] on Wed Has coping strategies in place” (punctuation as per original)
Sergeant Nicol phoned the appellant at home on Tuesday 25 October 2011 to ask why she was not at work. The appellant said she had seen her doctor the previous day; that her workdays had been altered to Thursdays and Fridays; and that she had told Detective Inspector Albury about the change. He was not at work on 25 October 2011 when Sergeant Nicol tried to speak with him before phoning the appellant. Sergeant Nicol told the appellant that, like it or not, she was her supervisor and, as a professional courtesy, she should advise her of such matters. The appellant said she did not feel comfortable talking to her. The conversation continued and when the appellant asked if she could go, Sergeant Nicol replied, “[d]on’t be a smart arse”. When the appellant said, “see what I mean”, Sergeant Nicol responded that she did not treat the appellant any differently to anyone else in the unit and she expected professional courtesy and to be kept informed when she was the appellant’s direct supervisor.
The appellant said that Sergeant Nicol had spoken to her in a hostile manner. The exchange made her “feel sick” and she had an anxiety attack. She spoke to Detective Inspector Albury and arrangements were made for her to work upstairs (with the pro-active crime team), away from Sergeant Nicol, and for her supervisor to be Leading Senior Constable Purcell, but her duties would not change. Detective Inspector Albury told Sergeant Nicol of this change on 28 October 2011.
The appellant submitted an Incident Notification Form on 27 October 2011 in which she again gave a date of injury as 4 August 2011. She described how the injury occurred:
“Increasing difficultsies [sic] with coping with work pressures, and death of fellow worker by suicide. No ongoing support with the incident in relation to the death of fellow worker. Harassment from supervisors within the work place.”
On Friday 28 October 2011, Detective Inspector Albury told Sergeant Nicol that the appellant had lodged a P 902 complaint form alleging that Sergeant Nicol had impacted on her work environment. As a result, the appellant was to be moved upstairs to the pro-active crime team office under the supervision of Leading Senior Constable Purcell (who was relieving another sergeant in that section), but she would not be changing duties.
On 31 October 2011, the appellant saw Dr Ruff and said that a superior had abused her by phone on Tuesday 25 October 2011 and that she had “[i]ncreasing anxiety”. She went to work on Thursday and Friday but cried and found it difficult. The appellant told Dr Ruff she needed more details on her certificates. Dr Ruff issued another WorkCover certificate that confirmed the appellant was only fit to work on Thursdays and Fridays (as per the certificate dated 24 October 2011), but added that she was not to work with Senior Sergeant Liddiard or Sergeant Nicol.
On 1 November 2011, Sergeant Nicol had a meeting with the remainder of the intelligence staff and told them of the appellant’s move upstairs, but not the reason for it. The staff assisted her in providing duties for the appellant’s two shifts that week. She later sent an email to the appellant (after Detective Inspector Albury checked it) detailing her work and clarifying the appellant’s duties for the following two shifts. The email stated:
“Dear [Ms AP]
I have spoken to Nicky PURCELl [sic] in relation to you doing your duties from the PACT office for the immediate future. You will need to come and take a computer from Intell as they are short on computers in the PACT office.
It is my understanding that you will be doing your normal duties but from a different location and if time permits can assist the PACT with profiles, risk assessments, etc as directed by Nicky PURCELL or Sergeant SARINA (on his return).
In relation to your duties I have had a meeting with Intell Staff in an attempt to clarify duties and taskings [sic].
Your core taskings [sic] will be:
Thursday – present daily crime report at 8am meeting (Rhonda will do Friday)
Update B E & S and Robery [sic] data bases
Update curfew list
Complete manual review of Information Reports from the Campbelltown work station
Quality review of Information Reports
Complete Probation & PArole requests – in folder in Intell Cell
Complete a risk assessment on Chad LAHS and an analysis to assess his suitability to be added as an STMP
Update and maintain the Releasee [sic] List
Complete T & D minutes from the last meeting.
You will be expected to liaise with Intell staff and share information as we both appreciate that urgent tasks may arise such as Alerts, etc which will have to be given priority
I am happy to discuss any issues you may have either directly or through your current supervisor.
Sgt NICOL
1/11/11” (punctuation as per original)

The appellant read Sergeant Nicol’s email shortly after she started work at 6.00 am on 3 November 2011 and said it made her feel “upset and traumatised”. She avoided the morning parade, and the 8.00 am management meeting, because she knew that Sergeant Nicol would be present. Detective Inspector Albury counselled the appellant for not attending the management meeting. When the appellant said that her general practitioner and counsellor had made it clear that she was to have no contact with Sergeant Nicol or Senior Sergeant Liddiard, Detective Inspector Albury asked that she obtain a new certificate from her general practitioner because the current certificate did not have that restriction (it merely stated that the appellant was not to “work with” Sergeant Nicol or Senior Sergeant Liddiard).
Leading Senior Constable Purcell referred to the appellant being angry when she read an email from Sergeant Nicol on 3 November 2011. She said the appellant refused to go to the supervisor meeting because she was of the view that Sergeant Nicol was not to have contact with her. She spoke to the appellant and “calmed her down a little”, and asked her to go to the meeting. The appellant again refused and said she was scared to be in the same room with Sergeant Nicol. Leading Senior Constable Purcell said that, between herself, Detective Inspector Albury and Senior Constable Grima, they had been doing everything they could for the appellant.
The appellant said she stopped work on 3 November 2011 because of what she described in her statement as “several incidents that have occurred since 2 June 2010”. Leading Senior Constable Purcell said that the appellant worked a few hours on 4 November 2011. It is agreed that the appellant remained off work from 4 November 2011 until she returned on a half-day per week starting on 17 August 2012.
On the last day that the appellant worked, Senior Constable Boxsell spoke to the appellant in the following terms:
“She was talking to me again about [Ms AQ]. She made reference to thinking it was a mistake for [sic] carrying her coffin and being a part of the pall bearers [sic] at the funeral. She also mentioned to me that she was playing with the bullet that killed [Ms AQ] and I [sic, she] had to make a statement about it. She talked about having her fingerprint on the bullet. She then told me she was going to her doctor. I thought that was good, I did not want to become involved in this nor did I think I [was] qualified too. I was happy when she said she was going to her doctor.”
The appellant saw Dr Ruff on 4 November 2011, who certified her unfit for work. Dr Ruff’s notes record:
“Went to work yesterday but missed 8 am meeting as would have had contact with abuser Received email reprimanding her for not attending Upset and tearful all day Not sleeping Nightmares Abdominal pain Weight loss Fells [sic] nauseated Saw councellor [sic] this am and advised to stop work Increased sessions to 3 times a week Try B vitamin” (punctuation as per original)

MEDICAL EVIDENCE
Treating doctors
Ms Jackie Burns

Though she is not a medical practitioner, it is appropriate to deal with the evidence from Ms Burns under this heading. Ms Burns is a senior clinician with the Department of Health at the Macarthur Sexual Assault Service. She prepared a document headed “counselling report” on 12 March 2012.
She said that the appellant presented in September 2011 with an anxiety reaction to events that happened from 2010. The suicide of her close friend and colleague, Ms AQ, and the subsequent treatment of her by her superiors in the Police Force, led to the appellant feeling overwhelmed, powerless and hopeless. She had lost all trust in “the Police Force [she] once loved to work for”.
Ms Burns recorded that, until the suicide, the appellant had successfully recovered from the anxiety and depression she felt in 2008. The suicide, and the total lack of understanding by the respondent of the effect it had on the appellant, reactivated the feelings of hopelessness and despair. Her mental health deteriorated over the next 12 months but she felt unable to express this to her superiors for fear of further investigation. She felt she could not speak about her increasing hopelessness, guilt feelings and suicidal ideations again for fear of being seen as “weak and not coping”.
Ms Burns described the appellant as a “very empathetic young woman” who feels deeply for others’ pain. This quality made her a very understanding police officer and extremely good at relating to the distress of others.

Dr Ruff

Dr Ruff reported to the appellant’s solicitors on 25 April 2012. She confirmed the content of her clinical notes for 3 August 2010 (see [50] above) and added that the appellant was experiencing nightmares and was constantly ruminating about her friend’s suicide and the fact that she had touched the bullet that her friend had used. She had approached her supervisors regarding her difficulty dealing with the event but had been reprimanded regarding her feelings, and her reports and actions, following the event. Rather than being provided with support, she was repeatedly told to “get over it” and “deal with it”. She was referred to a psychiatrist at the time, but had difficulty obtaining an appointment and did not follow up on the referral.
With regard to the attendance on 29 July 2011 (see [57] above), Dr Ruff said that the appellant had increasing anxiety symptoms after she was placed in an awkward situation when a family member made a false report and she had to report this. She had developed migraine headaches and found it difficult to concentrate. She had been increasingly harassed and bullied at work and, due to depression and anxiety, her duties had been restricted, compounding her symptoms. She found the restrictions stifling and found it increasingly difficult to stay at work due to constant crying and an inability to concentrate. She had suicidal thoughts, especially in the face of persistent harassment and abuse by two of her supervisors.
Dr Ruff diagnosed severe anxiety and depression as a result of a lack of support following the suicide of a co-worker and continual bullying following the incident. The appellant was unfit for work and had been improving, but relapsed following the denial of her claim.
Dr Ruff concluded:
“[The appellant’s] condition was caused by her reaction and grief following the death of a co-worker by suicide. It was compounded by lack of support and restriction of duties imposed on her as well as criticism of her feelings and emotions and actions.”
She expected the appellant to make a full recovery.

Dr Elizabeth Spencer

Dr Spencer, consultant psychiatrist, saw the appellant on referral from Dr Ruff on 13 April 2012. In her report to Dr Ruff dated 13 May 2012, Dr Spencer took a history that the appellant’s problems started after the suicide of Ms AQ. Dr Spencer took a history that the appellant felt guilty that she had not intervened and saved Ms AQ, and a “bizarre sense of connection with [Ms AQ] (which persists today) because she had touched the bullet” Ms AQ had used. The appellant was worried about what homicide would think (about the fact that) she had touched the bullet. From the time of the death, she experienced intrusive visual images of Ms AQ’s death. She said she received no counselling on the day she found out about the death. She had nightmares of the death, which continued at the time of the examination. Dr Spencer added:
“She was experiencing attacks of chest pain, numbness, difficulties breathing, constant nightmares, depression, guilt and visions of seeing [Ms AQ] in her house. She told me that she was thinking of suicide because it seemed so easy since [Ms AQ] had done it and it was a way out of the pain.”
The appellant said that, on ringing her supervisor, she was told that work needed cover (that is, staffing), that she would just have to get over it and that everyone had to deal with it. One of her bosses called her and said, “Hey scrambled egg. You need to see a psychiatrist”. He said he had called her scrambled egg because she had had issues with the police before.
Dr Spencer noted the incident on 16 June 2010 over the entry in the duty book and the appellant’s response to Senior Sergeant Liddiard’s comment. Over the next year, the appellant continued to work with difficulty. She would be reminded of Ms AQ’s death, feel panicky, and experience intrusive thoughts every time she saw a report with her name on it or when she had to go into the meeting room where there was still a picture of Ms AQ. She cried a lot and the nightmares, intrusive images and anxiety were getting worse. Over the year, she went from having one or two panic attacks to between seven and ten. Anything that reminded her of Ms AQ would bring on a panic attack. She was crying in front of her manager, who told her to “get over it”.
At the same time, the appellant’s mood was depressed. It was an effort to shower and she could not go to the gym. Her appetite decreased and her sleep was poor because of nightmares. She coped by drinking a bottle of wine per night. The increase in her symptoms continued to the anniversary of Ms AQ’s death.
With respect to the phone conversation between Sergeant Nicol and the appellant on 25 October 2011 (see [82] above), Dr Spencer recorded that Sergeant Nicol said she did not care about the appellant’s medical condition and called her a “smart ass [sic]”. The appellant was chastised for not attending a meeting in October 2011 where one of her managers would be present. By that time, she was having at least seven panic attacks per day. She felt unsupported and as if she could no longer cope, and went off sick in October 2011.
Dr Spencer also had a history that the appellant suffered post-traumatic stress disorder (PTSD) at the age of 14 following repeated sexual abuse by a neighbour, and of the problems in 2008 with the respondent. There was no significant medical history and no family history of mental illness.
Dr Spencer diagnosed the appellant to have PTSD and a major depressive disorder, noting that it was possible to develop PTSD after only hearing about an event without having witnessed it directly. She thought it was likely that the appellant was “primed to develop a PTSD to this event, having had such a problem in the past, although she recovered from her adolescent mental health problems prior to joining the police force”. Added to this, her recovery was being impeded by her feelings of hurt and disillusionment with the police because of “her sense that she has been poorly treated in the past and was unsupported after [Ms AQ’s] death”.
Dr Spencer reported to Dr Ruff on 27 June 2012 that the appellant looked depressed and was still having nightmares about Ms AQ’s death. Sometimes, from the corner of her eye, she saw Ms AQ coming down her stairs while she was watching television, but when she looked she was gone. She felt an odd connection with Ms AQ and could not get over having touched the bullet with which she killed herself.

Qualified doctors

Dr William Kirby

The police medical officer, Dr William Kirby, wrote in an email on 20 July 2012 that the appellant’s ongoing mood disorder fitted the diagnosis of PTSD with depression and anxiety stemming from the suicide death of her friend and fellow officer. The appellant was still symptomatic with significant anxiety, notably made worse by the prospect of returning to the original workplace. He recommended placement away from her original position and station.

Dr Michael Prior

Dr Prior, consultant psychiatrist, saw the appellant at the request of her solicitors on 23 February 2012. Though the papers sent to him gave a date of injury of 4 August 2011, the appellant told him that the “real date of injury was when a colleague suicided” on 2 June 2010. Dr Prior took a consistent history of the events immediately before and after the suicide. That history included that the day before the death she had been “playing with some bullets; I was probably playing with the one in her head”. She added that:
“The day before she shot herself I noticed bullets and [sic] in a magazine on a surface and I was playing with these and she snatched them back off me; I should have seen the signs at the time; it still plays on my mind that I might have stopped her.”
When asked what led to seeing the doctor and having counselling (in August 2011), the appellant said, “[t]hings built up at work: there was harassment and intimidation by two colleagues; there was a lack of support; I was having nightmares about her death”. He also took a history of the 2006 and 2008 issues and was aware of the sexual assault when the appellant was a teenager.
The appellant said that she coped with the 2006 investigation and got through it. She saw a psychiatrist for about three months in 2008, took medication, and “got completely over it after about three months”. She described the onset of her “indexed symptoms immediately upon finding out of the suicide of her colleague” and reported ongoing symptoms since that time.
Dr Prior said that the appellant’s periods of lowered mood occurred in varying proportion to thinking about the suicide and its aftermath, and following nightmares of the suicide. She reported frequent feelings of guilt about the death of her friend and that she should have been able to save her. Her sleep was disrupted and she experienced two to three panic attacks per day. Her Bachelor of Criminology studies, which she had started in 2009, were on hold. She said she wanted to get back to policing, it being all she ever wanted to do. She had been “shattered by the suicide”.
Dr Prior diagnosed chronic adjustment disorder with anxious mood, possibly complicated at times by a major depressive syndrome, which was not present at the time he saw her. The condition had been caused by the suicide and its aftermath. Her previous sexual abuse and significant stressors in the workplace in 2006 and 2008 made her more vulnerable to developing her condition. He added that the history elicited and mental status examination were consistent with the relatively broad term “anxiety/depression reaction due to an accumulation of stressors dating back three years” as made by Ms Burns. (I assume this was a reference to Ms Burns’s notes to which the doctor had access. No objection was taken to the fact that the notes were not in evidence. Counsel agreed on appeal that the notes had been available at the arbitration, but not tendered.)

Dr Himalee Abeya

Dr Abeya, consultant psychiatrist, examined the appellant on behalf of the respondent’s insurer on 2 February 2012 and reported on 13 February 2012. She took a history of the 2008 problems and that, over the next couple of years, the appellant was “back to good” and was nominated as police officer of the year around 2009/10. Dr Abeya also had a history of the appellant having been sexually abused as a child, from which she felt she had recovered completely.
With respect to the suicide, the appellant told Dr Abeya, with a lot of emotion, that she had “touched the bullet [that probably killed Ms AQ] the day before”. When she was informed of the death, she was in a state of mental shock and ran out crying. Though she did not feel like working, and was not in a fit state to talk about anything, she was compelled to give a statement to homicide detectives. She appeared angry with Senior Sergeant Liddiard for asking her to give the statement. She went home and cried in the bath for hours.
Though the appellant continued to work, she was significantly affected by Ms AQ’s death and found that she was not sleeping. When she did sleep, she had bad dreams of Ms AQ’s death with “heads everywhere” and sometimes about the bullet that she had touched.
Dr Abeya’s history of the events following the death was essentially consistent with the appellant’s evidence. The appellant said she was offered the chance to speak with EAP “the next day” and that she had twice taken up the offer to speak with EAP. Later on, they contacted her once by phone. Her friend said that the protocol was to have three follow-up calls and that the appellant had not received her quota. She felt extremely traumatised by having to sit with Ms AQ’s parents when they gave their statements. Reminders of Ms AQ (her photo and a plaque in her memory in the meeting room at the police station) would reawaken her sense of sadness. The lack of real support from her supervisor caused the appellant emotional distress. All of this made her feel continually low in mood and often quite anxious.
The phone call from Sergeant Nicol on 25 October 2011 made the appellant feel intimidated and scared, and she felt that it was an attack on her. Sergeant Nicol’s voice was hostile and angry. She said that Sergeant Nicol clearly did not care about her medical condition and had said as much. She was reprimanded for not attending a meeting on 3 November 2011 and felt extremely harassed and unsupported. She said she did not want to be like that anymore and started to have suicidal thoughts. She decided not to return to work.
When asked to identify the incidents of harassment by her superiors, the appellant said that the comment by Senior Sergeant Liddiard in her duty book on 3 June 2010 was not professional and a form of intimidation. She said it was unfeeling, considering that she was devastated by the situation, and the comment made her feel “even more like crap”. The other situation was Senior Sergeant Liddiard’s unfeeling manner of protesting whenever the appellant asked for leave. Senior Sergeant Liddiard had said to her “you should get over this”.
The appellant had a number of anxiety symptoms initially and experienced panic attacks where she felt she could not breathe and felt an acute level of anxiety. There were also times when she had palpitations and chest pains along with feeling anxious. She also described ongoing low mood, which she said was perhaps intensely worse around the time of Ms AQ’s death and that it continued to a level worsening again after she left work. During the month after the suicide, the appellant was not sleeping at all and continued to have bad dreams when she fell asleep. The dreams were about Ms AQ, often with “heads everywhere”, and dreams related to the bullet. She described a sense of guilt, feeling responsible for Ms AQ’s death, saying that she could have done more to prevent the actual event. Her dreams continued at the time of the assessment. What had been most distressing for her, and had worsened, were the suicidal thoughts she started to experience, which left her quite worried she may harm herself. Initially she had a lot of problems with her appetite and had lost around 6 kg.
Under “Adaptation and employability”, Dr Abeya recorded:
“[The appellant’s] own view was that ‘I can’t believe what they have done to me. I don’t have any trust in them. I know I am a good police officer and I work hard and I want to go back to pre-injury duties when I can.”
Under “Diagnosis and Opinion”, Dr Abeya said that the appellant presented as “depressed in mood”, had “low levels of motivation, reduced energy levels, disturbed sleep, a sense of hopelessness and intense guilt with regards to her friend’s death, as well as suicidality”. She added:
“It appears that these symptoms have evolved gradually from the point of her friend’s death in June 2010. This may have been a normal reaction to the loss, but appears to have evolved into a more pathological state. It is clear that from the initial stages that she has experienced depressive symptoms of a degree, but this appears to have increased and decreased in varying proportions over this period of time.”
Dr Abeya felt that the appellant’s presentation was consistent with a DSM-IV diagnosis of a major depressive episode of moderate severity. The appellant also described anxiety symptoms since 2010, including panic attacks earlier on, but Dr Abeya did not feel that she qualified for a separate diagnosis of an anxiety disorder though it was necessary to accept that anxiety symptoms could be part of an affective disorder or mood disorder and that it could be a way of reacting to a difficult situation. Her depressive symptoms appeared to override her anxiety symptoms. The other important factor in the depressive illness was the appellant’s ongoing suicidality, which was a clear factor for a diagnosis of a depressive episode rather than a mere adjustment disorder. Dr Abeya said that another important point was that “the illness itself appeared to have originated from initial bereavement and from a purely technical point of view, an adjustment disorder is generally not considered in a situation of bereavement”.

On causation, Dr Abeya said:
“What is not totally clear are the actual causative factors other than for the fact that it was the death of her friend in 2010 that initially triggered the current episode. Yet it is clear the symptoms have waxed and waned over the past 1½ years and this may be due to the different experiences she has had during this period of time. It is quite normal for depressive symptoms to change in intensity given a person’s environment and the level of support that they have.
She appears to have been quite distressed by certain family issues around August 2011 and I wonder about the level of contribution this may have had in exacerbating the depressive symptoms. Her own belief is that she has perceived harassment at the hands of her supervisors and it was this along with their unfeeling attitude towards her distress that has intensified her depressive symptoms.”
Dr Abeya noted the statements by the appellant’s supervisors that, contrary to the appellant’s narrative, they had been supportive of her, but made no comment on the “validity” of their statements. Dr Abeya added:
“It is nevertheless clear that [the appellant] has symptoms of depression and that these were initially triggered from the death of her friend and I believe the current symptoms she experiences are still related to her friend’s death, but may have been intensified by other environmental factors.”
Though the appellant had some symptoms similar to a “post-traumatic stress disorder like picture”, Dr Abeya felt that the overall impression was more of a depressive illness. Another important factor in the appellant’s presentation was that she has had previous depressive episodes. With someone who has experienced depression previously, the chance of recurrence of depression “in a difficult or stressful situation are quite high” (60 per cent after one episode and up to 80–90 per cent after three). Overall, that made the appellant “quite vulnerable to developing depressive symptoms as well as anxiety symptoms in a stressful situation”. The appellant’s own “emotional fragility” may also have evolved from her experiences as a child through the traumatic situation she had to face, leaving her more emotionally unstable and fragile than she might have otherwise been.
Dr Abeya felt it important to note that the appellant had been able to overcome these difficulties “to a great degree” and to function as an “extremely effective police officer”. Dr Abeya added:
“I do not believe that her current episode is related to either of the previous experiences of psychological illness that she has had. This needs to be considered as an entirely separate episode arising from her friend’s death in 2010.”
Dealing with specific questions put to her by the insurer, Dr Abeya confirmed that her diagnosis of depression “originated” from the loss of the appellant’s friend in June 2010. Symptoms continued to a mild degree initially and appear to have been exacerbated around August 2011. The immediate reason for the exacerbation was unclear but it may have been due to a combination of factors, including her own “perceived sense of harassment, possible non work related factors with regards to her family, and perhaps even the situation around the refusal of the secondment she appears to have wanted at the time”.
In answer to the question of whether the appellant suffered a psychiatric condition that was “non-related to the NSW Police Force”, Dr Abeya said:
“No I feel her condition is related to the death of her friend, another police officer, and the fact that she herself is a police officer. In that sense there is a clear relation to the Police Force and her own belief in harassment appears to have exacerbated her symptoms, yet this needs to be validated.”
Asked to comment on whether “non-work related influences” had contributed to the appellant’s “current psychological injury”, Dr Abeya said:
“It is important to note that [the appellant] herself did not contribute any non-work related factors for her current distress. Therefore my understanding of these factors are from the statements provided as well as from her provided general practitioner’s notes. Clearly if these non-work related factors such as the stress she has had from her sister’s issues were present, they would clearly impact on her depressive symptoms, and in that sense would certainly have contributed.”
When asked to say why the respondent was liable for the appellant’s injury, Dr Abeya properly responded that she was unable to comment on liability for an injury, but added:
“Yet as far as [the appellant’s] depressive episode is concerned, the connection with the Police Force I believe is:
(a)     Due to the fact that it has initially arisen from the death of her friend in June of 2010.
(b)     Her own perceived harassment from her supervisors, which needs to be verified.
(c)     Possible disappointment related to a secondment she wished to have, which she did not inform me about yet is stated in one of the reports.
In addition to point a), if the above events are considered to be true, then there is certainly a relationship between the Police Force and her current illness. Yet, whether they can be held liable needs to be decided through the appropriate process.”
In respect of non-work related factors, Dr Abeya noted that the appellant had considerable issues with her stepsister around August 2011 and that date was important, as it was consistent with the appellant’s “possible worsening of her symptoms”.

THE SENIOR ARBITRATOR’S REASONS

The Senior Arbitrator said (at [16]) that, though the claim was framed to encompass a number of incidents in the workplace, much of that was “really by way of background only” and the issues in dispute were essentially twofold: first, the events surrounding the death of Ms AQ and, second, the appellant’s treatment in the workplace thereafter.
After reviewing the evidence, the Senior Arbitrator said (at [105]) that it was her task to determine whether “this event” (the death of Ms AQ) constituted an injury arising out of or in the course of the appellant’s employment with the respondent. Though the appellant had pleaded a number of events as causative of her psychological condition, it seemed clear to the Senior Arbitrator that Ms AQ’s suicide was “the ultimate cause” (at [106]).
Though the appellant had psychological symptoms following certain events in 2006 and 2008 (which arose out of her employment), the Senior Arbitrator was satisfied that she had either recovered from them or, at the very least, had put them behind her. She was performing her normal duties at the time of Ms AQ’s death in June 2010 and her evidence was that she ceased work in November 2011 as a result of “several incidents that have occurred since 2 June 2010” (at [109]).
The Senior Arbitrator was not satisfied that “work pressures”, whatever they may have been, “were causative of [the appellant’s] condition” (at [110]). She referred to and applied the following statement from [11] of Stewart: “finding something stressful does not mean that it constitutes an injury. There must be a physiological effect which causes a disturbance of the worker's psychiatric state. It must also cause the incapacity.”
Dealing with the death of Ms AQ, the Senior Arbitrator concluded that the circumstances fell “squarely within the principles established in Stewart” (at [112]). In that case, Mrs Stewart had formed a close friendship with a work colleague, Mrs Andrews, who subsequently died from cancer. Mrs Stewart assisted in organising the funeral and had to take over a number of the duties previously performed by Mrs Andrews, which she found “stressful”. Shortly after the death of Mrs Andrews, Mrs Stewart’s son died.
Mrs Stewart developed a depressive illness that Neilson CCJ found had been “triggered off” by her reaction to the death of Mrs Andrews and “increased greatly by the death of her son”. Though it was not argued that the death of Mrs Andrews constituted a relevant injury, had such an argument been pressed, his Honour said (at [14]) that he did not accept that “a psychiatric disturbance resulting from the death of a close friend, who was also a work colleague, constituted an injury arising out of or in the course of a worker’s employment.”
While his Honour accepted that Mrs Stewart’s work may have been “stressful” that did not mean that it was causing upset to her psyche or relevant mental illness. The Senior Arbitrator quoted (at [115]) the following passage from Stewart at [63]:
“Thereafter, the applicant has perceived other potentially innocuous, minor events at work as, again, insults to her or stressors. In my view, that she does so is explained by the mechanism given by Dr Donsworth of denial and compartmentalisation instead of realising that her present symptoms result from the death of her son. She has concentrated on what has happened at work. She has become angry with her employer. Anger is not an illness. Anger is a natural human reaction.”

In reaching this conclusion, his Honour relied on Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566 (Scarce). In that case, the worker was a miner who developed an anxiety condition when he heard of the deaths of two of his mates in a mine accident. The Court of Appeal held that the worker’s condition was due to the receipt of the news of the miners’ deaths. As there was no evidence of when and where the disclosure took place, and no physical link between the accident and the worker, the condition did not arise in the course of the worker’s employment. The condition could not be said to have arisen out of the employment because it was not causally related to it.
The Senior Arbitrator referred (at [116] and [117]) to passages in Scarce where it was said that “[t]he only connecting factor [with the worker’s employment] on which the worker relied was the fact that the accident involved the death of two of his friends in the mine in which he himself worked” (Clarke JA at 571C) and that it was the “news of his mates’ deaths, and the constant cogitation about that news, which made the worker ‘anxious’” (Meagher JA at 575C).
Clarke JA added that those facts were insufficient to demonstrate, as a matter of commonsense, that the injury arose out of the employment because it could not be said that the employment was a material contributing factor to the injury. Meagher JA did not see that the receipt of the news was causally related to the worker’s employment. The same news could have had the same effect if his mates had met the same fate in a mine not conducted by the appellant employer.
The Senior Arbitrator said (at [118]) that the appellant was more than just a co-worker or colleague to Ms AQ – she was also her friend. She then referred to the observation in Stewart that, “[w]here … a friendship develops between two workers and some catastrophe occurs to one which upsets the other, such in my view is not sufficient to constitute injury arising out of or in the course of the employment”.
She said that, as a friend, it would be highly likely, irrespective of any workplace friendship, that the appellant would be a pallbearer or have some involvement with the funeral arrangements and have contact with her friend’s family.
Dealing with Mr Stockley’s argument that it was the events on the afternoon before Ms AQ’s death (when, while in the course of her employment at Campbelltown Police Station, the appellant handled the gun and ammunition that Ms AQ used to take her life) that were critical to the development of the appellant’s psychiatric condition, the Senior Arbitrator said (at [120]) she accepted that the appellant became “somewhat fixated by the fact that she had handled Ms AQ’s weapon and possibly the bullet that killed her” (emphasis included in original).
The Senior Arbitrator added, at [121]:
“But in my view these actions do not convert the death of Ms [AQ] into an injury within the meaning of the Act. They of themselves are innocuous. If Ms [AQ] had not taken her own life it is unlikely that the applicant would have given these actions a second thought. Equally it is likely that she would have reacted in a similar way if she had not been in the workplace at the time and had handled the weapon or ammunition in some other circumstances. Similarly her reaction is likely to have been the same if, for example, Ms [AQ] had obtained a weapon elsewhere, or had by some other means taken her own life.”
She acknowledged (at [122]) that these events may have led the appellant to feel a sense of guilt, together with anger, frustration and despair at not being able to prevent her friend from taking her own life, but those were normal human reactions to be expected regardless of the fact that Ms AQ was a work colleague. In her view, just as Meagher JA said in Scarce, the appellant would have had the same reaction to the news of the suicide irrespective of the manner, time or circumstances of it.
The Senior Arbitrator said (at [123]) that the totality of the evidence pointed to “the principal cause of [the appellant’s] condition as being the death of her friend Ms [AQ]”.
Dealing with the other potential causes of the appellant’s condition, the Senior Arbitrator accepted (at [125]) that, contrary to the appellant’s assertions, counselling was available for her even though she may have perceived the counsellor’s actions as just “ticking a box”. The Senior Arbitrator noted (and presumably accepted) the evidence from Leading Senior Constable Purcell that the appellant received “great support” from herself, from Detective Inspector Albury, and Senior Constable Grima.
As to the appellant’s distress at the comments made in her duty book by Senior Sergeant Liddiard, the Senior Arbitrator said, at [126]:
“After the applicant returned to work on about 16 June 2010 she became distressed at Ms Liddiard’s comments in her duty book. To my mind, Ms Liddiard’s actions were appropriate given that she was the applicant’s supervisor. Again, this seems to me to be a relatively innocuous event which became significant in the applicant’s mind because of how she felt herself and how she saw her colleagues responding to Ms [AQ’s] death. Although she may have had an anxiety attack at work that day, in my view it resulted from both her own perception that Ms Liddiard did not seem to care, together with reasonable action by Ms Liddiard with respect to discipline.”
The Senior Arbitrator accepted that the appellant remained affected by Ms AQ’s death in the period between August 2010 and July 2011. Contrary to what the appellant told Dr Ruff on 3 August 2010 (recorded in Dr Ruff’s report of 25 April 2012), there was no evidence that the appellant was “reprimanded regarding her feelings”.
The Senior Arbitrator said (at [128]) that the appellant’s statement was silent as to the events in late July and early August 2011. It simply said that she spoke with her friend, Senior Constable Grima, and Detective Inspector Albury, and then took about five weeks off work. It was at this time that the “conflict of interest” event occurred involving her sister having made a false report.
The Senior Arbitrator said (at [128]) it was interesting that the appellant sought advice or assistance from Senior Sergeant Liddiard over this issue, which contradicted her assertion that Senior Sergeant Liddiard offered her “no real support” since Ms AQ’s death. She found it “curious” that the appellant’s claim form dated 30 September 2011 referred in detail to events on 4 August 2011 but her statement made no mention of it.
The Senior Arbitrator said (at [129]) that the appellant made no mention in her statement of the following matters:
(a)     the apparent difficulties she had when she took over the supervisory position from Sergeant Hurst;
(b)     (her disappointment at) missing out on the secondment position;
(c)     the meeting with Inspector O’Meara on 11 October 2011, or
(d)     the incident where she defaced a photo of Senior Sergeant Liddiard’s daughter.
These omissions caused the Senior Arbitrator “some concern as to the veracity of some of [the appellant’s] claims” (at [130]). It seemed to her “somewhat disingenuous” of the appellant to assert that she suffered from “constant intimidation, harassment and lack of support” from Senior Sergeant Liddiard when, by her own actions (in defacing the photo), she had caused that relationship to break down. While Senior Sergeant Liddiard admitted the timing of the conversation on 11 October 2011 was “not good”, the Senior Arbitrator said that that did not “diminish the severity of [the appellant’s] actions”.
As to the appellant’s relationship with Sergeant Nicol, the Senior Arbitrator said (at [132]) that the appellant had not been on good terms with her for some time prior to the death of Ms AQ and that it was clear they did not like each other. It was not disputed that they had words over the days on which the appellant was due to work, which the Senior Arbitrator described as “simply a misunderstanding” by the appellant as to what her medical certificate meant. The appellant was not placed in a position of having to work with Sergeant Nicol, because they were on separate floors.
In any event, while the Senior Arbitrator accepted (at [133]) that the clash with Sergeant Nicol may have upset the appellant, she did not see it as causative of the appellant’s condition. From the description of the appellant’s behaviour by a number of her colleagues during September and October 2011, the appellant was becoming increasingly distressed and agitated for other reasons.
The Senior Arbitrator said (at [134]) that the statement by Senior Constable Boxsell, who had expressed concern to Detective Inspector Albury about the appellant’s welfare resulting in her weapon being padlocked, was particularly illuminating. The Senior Arbitrator then quoted the passage reproduced at [91] above.
The Senior Arbitrator said (at [135]) that the appellant’s complaint to Dr Ruff on 20 September 2011 that she found the restricted duties “stifling” was “curious to say the least”. It seemed to her that padlocking the appellant’s weapon, placing her on suicide watch, and restricting her duties was “a clear indication of care and concern for her by her superiors”.
The Senior Arbitrator referred (at [136]) to evidence from Senior Constable Grima and Ms Tracey (a civilian intelligence analyst with the respondent) that in October 2011 they both had conversations with the appellant in which she talked about Ms AQ’s death and about having handled the bullet that may have killed her.
Though the appellant told Dr Ruff on 24 October 2011 about “harassment by supervisors”, the statements from Senior Constable Boxsell and Ms Tracey suggested that she made no mention of that to her friends at work and that was the first time the appellant had complained to Dr Ruff of any “harassment” at work.
The Senior Arbitrator summarised her conclusion on causation at [138]:
“In summary, I am of the view that the applicant’s persistent distress and constant ruminations over Ms [AQ’s] suicide, noted and observed by her colleagues especially during October and early November 2011 were the cause of her injury and incapacity, not subsequent events in the workplace she perceived as harassment and lack of support and care for her.”
The Senior Arbitrator added that she did not consider the actions by Senior Sergeant Liddiard or Sergeant Nicol, or any other co-workers or supervisors, amounted to bullying or harassment. She said (at [140]), “any perceived hostility, harassment, or lack of care or support from supervisors was as a result of [the appellant’s] increasing feelings of guilt and distress over Ms [AQ’s] death”. The events complained of by the appellant – the email, the proposed meeting and the comments by Senior Sergeant Liddiard in the duty book – were, in her view, “innocuous”.
The Senior Arbitrator repeated the words used in Stewart (which referred to the worker in that case having perceived potentially innocuous minor events at work as insults to her, or stressors, and become angry with her employer, but anger was a normal human reaction not an illness) (see full quote at [141] above) and said (at [141]) that the appellant’s “reactions may have increased her depressive illness: they did not cause it”. The appellant demonstrated anger towards her employer, but that anger was a “product of her grief and anguish over her friend’s death” which was an understandable and natural human reaction, but not compensable.

Senior Constable Boxsell said that the appellant was upset over the failure to secure the secondment and said that she (the appellant) did not want to come to work anymore. This incident occurred at work over work matters and occurred in the course of the appellant’s employment. Therefore, unless s 11A applies to this incident, and it has not been suggested that it does, I accept that the incident played a part in the development of the injury. It is of no consequence that the appellant did not refer to this incident in her statement, a statement that was prepared by the respondent’s investigators. It is referred to in the medical and other evidence, and evidence in a medical history is evidence of the fact (Guthrie v Spence [2009] NSWCA 369 at [75]). It is not something that has taken the respondent by surprise.
The only potential non-work factor Dr Abeya identified related to the issue involving the appellant’s sister, which Dr Abeya felt would clearly have impacted on her depressive symptoms. This issue is deal with below when I consider if employment was a substantial contributing factor to the injury.
Turning to the alleged lack of support following the death, the respondent says that it provided support and counselling and that this allegation is without foundation. While I agree that some counselling was made available, that is not the issue. The issue is whether there is any basis for the appellant’s perceived lack of support and whether that perception caused or contributed to her injury.
The perceived lack of support is based on the following matters:
(a)     the alleged lack of professional counselling on 3 June 2010, prior to being told to stay back and give a statement to the homicide detectives;
(b)     the fact that the people from EAP attended on 4 June 2010 and spoke with the appellant, though she felt they were only speaking to her to “tick a box” and cover the employer’s back;
(c)     though Senior Sergeant Liddiard granted the appellant’s request to have leave on 15 June 2010, because she was not coping, she felt that Senior Sergeant Liddiard was not happy and seemed more worried about the coverage of the department than about the appellant’s welfare;
(d)     while Superintendent Smith told the appellant in a phone conversation on 15 June 2010 that she needed to get back to work and see a psychologist, no arrangements were made by the respondent for her to see a psychologist. This conversation made her feel “pressured” to go back to work, though she did not feel any better;
(e)     the entry Senior Sergeant Liddiard made in the appellant’s duty book made her feel she was not getting any support from her direct supervisor;
(f)      when the appellant asked for annual leave on the anniversary of the death in 2011, Senior Sergeant Liddiard gave her the day off but told her to “get over it”, and
(g)     the hostile tone used by Sergeant Nicol on 25 October 2011 made the appellant feel that the Sergeant did not care about her medical condition (as this occurred after 22 September 2011, it is dealt with below when I consider whether the appellant suffered an aggravation injury).
On the issue of whether counsellors were available on 3 June 2010, the evidence from Senior Sergeant Liddiard is that counsellors arrived at the station within hours of the news and that everyone was encouraged to speak with them. Given the circumstances of the death, it seems plausible that counsellors would have arrived on 3 June 2010, as claimed by Senior Sergeant Liddiard. However, she did not say that she had firsthand knowledge that the appellant spoke with them that day, she said she was “sure that [the appellant] also spoke with the counsellor on that day”.
Given the other pressures on Senior Sergeant Liddiard on 3 June 2010 (having to personally ring between 20 and 30 staff from the station to inform them of the death and attend to other matters), and given that the appellant would be better placed to know when she spoke to the counsellors, I prefer the appellant’s evidence that she did not speak to the counsellors until 4 June 2010 and that, having to give a statement (on 3 June 2010), before receiving counselling, contributed to her feeling of a lack of support at a time when she felt “sick” in her stomach and “trapped”.
Exactly what assistance and support the EAP counsellors provided is not dealt with in the evidence and it is therefore hard to know if they were merely speaking to the appellant to “tick a box”, as she has claimed, or if they provided any meaningful support. Surprisingly, there is no evidence from any of the counsellors. I accept the appellant’s evidence that she felt the counsellors provided “no help” and did not change how she felt. I also accept that this contributed to the appellant’s feeling that she had not received adequate support.
With regard to the appellant’s application to take annual leave on 15 June 2010, the evidence is that she felt Senior Sergeant Liddiard was not happy about it and was more worried about the coverage (staffing) in the unit than with her welfare. While Senior Sergeant Liddiard denies this, her statement that she had to manage a unit of 20 people and that the unit had to continue to function tends to corroborate the appellant’s evidence, which I accept. This finding should not be interpreted as a criticism of Senior Sergeant Liddiard, who performed her duties conscientiously in what were obviously very difficult circumstances.
It is not disputed that the respondent did not arrange for the appellant to see a psychologist, as Superintendent Smith had suggested. Nor is it disputed that the appellant felt “pressured” to return to work in June 2010, though she did not feel any better. Both these matters provide support for the appellant’s perception that she had not been supported.
The facts surrounding Senior Sergeant Liddiard’s entry in the appellant’s duty book are not disputed and, while I agree that the action was not a personal attack on the appellant, and that Senior Sergeant Liddiard was merely doing her job, I accept that the incident made the appellant feel she was not getting support from one of her supervisors and that she felt intimidated and harassed by it. I make this finding notwithstanding that the appellant made no mention of harassment to Dr Ruff until much later. The fact that the appellant was extremely distressed by the incident is corroborated by Senior Sergeant Liddiard’s evidence. It follows that I reject the respondent’s ex post facto hypothesis, which, given the evidence overall, was completely without foundation.
The allegation that Senior Sergeant Liddiard told the appellant to “get over it” in a conversation in May 2011 is not challenged by Senior Sergeant Liddiard’s evidence and I accept the appellant’s evidence that it was said and that it made her feel “upset and intimidated”.
It follows that I accept the appellant’s evidence that she believed she did not receive support at work after the death and that real events occurred that made her feel intimidated, harassed and that she was being criticised. In reaching this conclusion, I have not overlooked the evidence from Leading Senior Constable Purcell and Senior Constable Grima that they, and Detective Inspector Albury, provided general support for the appellant. While I accept that they provided general support, there is no doubt the appellant felt that her direct supervisors did not support her. Those feelings were based on real events that happened at work or arose out of the employment.
The allegation that the appellant received no support from her supervisors is dealt with in the expert evidence from Ms Burns, Dr Prior, Dr Ruff, and Dr Abeya.
Ms Burns said that the suicide and the total lack of understanding by the respondent of the effect it had on the appellant reactivated feelings of hopelessness and despair, and her mental health deteriorated over the next 12 months (presumably this was a reference to the 12 months after the death). This evidence is consistent with the appellant’s evidence that she felt a lack of support from her superiors and supports the conclusion I have reached that the lack of support played a role in the development of the condition.
Dr Ruff said that the condition was caused by the appellant’s reaction and grief following the death and was “compounded” by a lack of support, restricted duties, and criticism of her feelings and emotions and actions. Given that “compound” means, among other things, “composed of two or more parts” and to “to increase by an added factor” (Macquarie Online Dictionary), and given the context in which Dr Ruff used that term, it is clear that she accepted that the condition was added to, or increased by, the events at work after the death. It follows that Dr Ruff’s evidence, which I accept, supports the conclusion that the condition was caused by multiple events, which included the death, the lack of support and the perceived criticisms after the death.
Dr Prior’s evidence also supports this conclusion. In addition to the history of the appellant having played with the bullets that killed Ms AQ, he also took a history of things having built up at work, harassment and intimidation by two colleagues, and a lack of support. His conclusion that the condition was caused by “the suicide and its aftermath” is consistent with it having been caused gradually by multiple work events, including the incidents with Senior Sergeant Liddiard and the lack of support.
Dr Abeya also took a history that a lack of real support from her supervisors caused the appellant emotional distress and made her feel continually low in mood and often quite anxious. Though she did not list this as one of the three connections with the respondent, it is difficult to separate this history from the doctor’s conclusion. In my view, Dr Abeya’s history of a lack of support, combined with the evidence from Dr Ruff and Dr Prior, strongly supports the conclusion that the perceived lack of support also contributed to the condition. This is also consistent with Dr Abeya’s opinion that the condition “evolved gradually” from the time of the death and that the symptoms were “intensified” by environmental factors. Those environmental factors were all work-related.
Ms Wood’s submission that the medical histories were inconsistent is unpersuasive. The history recorded by a doctor does not have to correspond with complete precision with the facts. It is sufficient if the history provided a fair climate for the acceptance of the opinion offered (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510). The facts assumed do not have to be the true or real facts, but only the facts asserted. An expert must identify the “facts and reasoning process which he or she asserts justify the opinion” (Australian Securities & Investments Commission v Rich [2005] NSWCA 152). That is sufficient to enable the tribunal of fact to evaluate the opinions expressed (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399 at [85]).
In the present case, though the medical histories recorded by the doctors varied in minor respects, I am satisfied that their histories provided a fair climate for the acceptance of their opinions.
It follows from the above analysis that the logical and compelling conclusion is that the appellant’s major depressive disorder was contracted gradually in the course of her employment and that her employment was a contributing factor to the contraction of that disease. In other words, she suffered a disease injury under s 4(b)(i) of the 1987 Act.

Was employment a substantial contributing factor to the injury?

Ms Wood submitted that:
(a)     the appellant relies upon the handling of the ammunition as having caused concerns that she could have prevented the death, but has not described any protocol that she ought to have or would have had available to her as a police officer to prevent the eventual outcome;
(b)     the suicide of a colleague and friend occurred outside work duties and had no connection to the appellant’s employment other than she happened to be a co-worker of the deceased;
(c)     the injury was likely to have occurred in any event whether the appellant was at work or elsewhere. The appellant’s concerns were personal in terms of the death of a friend and what she, as an individual, could have done to prevent the death, and
(d)     the action of handling the ammunition was embarked upon purely out of the curiosity of the appellant and was not an action that was required of her or incidental to the performance of her duties as a police officer. While the appellant was at her place of employment when that occurred and the equipment was employment-issued equipment, this falls short of satisfying the requirement of s 9A (Van Wessem v Entertainment Outlet Pty Ltd [2011] NSWCA 214; 9 DDCR 375 (Van Wessem)).
Ms Wood also relied on Pioneer Studios Ltd v Hills [2012] NSWCA 324 (Hills), but was unable to direct me to any particular passage that she said supported her position.
I do not accept these submissions.
Employment will be a substantial contributing factor to the injury if its contribution was “real and of substance” (Badawi). It is not sufficient that the injury was received in the course of the employment or that it arose out of the employment.
The term “employment” includes all its elements, “its nature, its conditions, its obligations and its incidents” (Thom v Sinclair [1917] AC 127; applied in Smith v Australian Woollen Mills Ltd [1933] HCA 60; Favelle Mort Ltd v Murray [1976] HCA 13). It includes “some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed” (Semlitch per Kitto J at 633) and “some characteristic of the work or the conditions in which it was performed” (Semlitch per Windeyer J at 641). One starts with the actual and not the hypothetical, with what the worker was in fact doing in his or her employment that caused or contributed to the “injury” as defined in s 4 (Mercer v ANZ Banking Group [2000] NSWCA 138 (Mercer) at [13]; cited in Hills at [29]).
When “employment” is viewed in light of these authorities, the connections between the injury and the employment are real and of substance. They are:
(a)     both the appellant and Ms AQ were police officers and were both required to carry firearms in the course of their duties;
(b)     the handling of the gun and ammunition happened in the course of their duties and was incidental to those duties;
(c)     the appellant was informed of the death at work in the course of her employment, and
(d)     all of the other events relied on (save for incident with the appellant’s sister, discussed below) occurred in the course of or arose out of the appellant’s employment.
That the appellant and Ms AQ spoke about personal matters at or about the time that the appellant handled the gun and ammunition is of no consequence. It was not suggested (nor could it have been) that that conversation took the appellant outside the course of her employment.
Ms Wood has made much of the fact that the medical evidence has merely said that the condition has been caused by the death and not by the circumstances surrounding it. I have found that submission surprising and already touched on it at [270] and [274] above. It is unrealistic in the extreme to suggest that the doctors’ conclusions should be read in isolation from the context in which they were expressed. That context included the history that the appellant had handled the bullet with which Ms AQ took her life and that that played on her mind and featured in her dreams. That history has been a consistent feature in the case and was repeated by the appellant to Senior Constable Boxsell in November 2011. Dr Abeya found that part of the history to be “important”.
It is not relevant that the appellant had not described any protocols that were or should have been available to prevent the suicide. While the appellant has felt guilt over not preventing the death, it has never been part of her case that the lack of police protocols caused or contributed to her injury.
That the suicide occurred outside work duties and had no connection with employment misses the point. The appellant does not seek compensation for the suicide itself but for the effect it had on her in the circumstances of this case. Those circumstances include the handling of the ammunition, being informed about the death at work, and the myriad of other employment circumstances referred to at [272] above.
The suggestion that the injury was likely to have happened in any event, whether the appellant was at work or elsewhere when she heard the news, ignores the significant effect the handling of the ammunition, and the many subsequent work events, had on the appellant, and the fact that she does not rely on the death per se as having caused her injury. Moreover, not only is there no evidence to support this submission, Dr Abeya’s evidence is strongly against it.
The submission that the handling of the ammunition was embarked upon purely out of curiosity, and was not an action required of the appellant, or incidental to the performance of her duties as a police officer, ignores the fact that “employment” includes all the characteristics of the work and conditions in which it is performed (Semlitch at 641) and, as already noted, that the appellant does not rely solely on the handling of the ammunition and the circumstances in which she was informed about the death.
Van Wessem merely confirms that an injury received in the course of employment is not, on its own, sufficient to satisfy s 9A. This might have had some relevance if the only basis of the claim was that the appellant was informed about the death while at work. The facts in the present case are significantly different to the facts in Van Wessem and that case provides the respondent with no support.
Ms Wood did not identify which passage in Hills allegedly supports her position. At the oral hearing of the appeal, she submitted (at T63.27) that the Court of Appeal said about s 9A:
“It is an objective test, that connection must depend on what is required of the employment by an employer and what the employee actually does rather than what the employer's subjective impression is of what he or she ought to do.”
There is no passage in Hills to the above effect. At [29], Allsop P referred to the passage at [13] in Mercer and said that that was not to confine “arising out of” to what is required of an employee but rather what he or she in fact does in the employment. His Honour added that this required focus upon what was the employment, not what the worker thought was the employment. Those observations have no application to the facts in the present case. There is no dispute that the appellant was in the course of her employment when she handled the ammunition and when she received the news of the death. Nor is there any dispute that the other matters that she alleged caused her injury either occurred in the course of or arose out of her employment.
On the question of whether it was probable that the appellant would have developed the injury, or a similar injury, anyway at about the same time or the same stage of the appellant’s life, if she had not been at work (s 9A(2)(d)), I have dealt with this issue at [309] above. The only other potential non-work cause identified by Dr Abeya was the conflict of interest issue that involved the appellant’s sister.
This issue was partly related to a work event (having to complete a report for a conflict of interest) and partly related to a non-work event (the conduct of the appellant’s sister). I accept that the appellant was upset by her sister’s conduct and that that conduct arose outside of her employment. However, while in her recurrence form dated 30 September 2011 the appellant said that being directed to complete a report for a conflict of interest had made her feel upset and depressed, this was inconsistent with Dr Ruff’s entry for 29 July 2011, which recorded that she had “sorted it out with work” and that she was “feeling better” that she had resolved the situation. This strongly suggests that the incident was a minor one that had no lasting effect.

Apart from Dr Ruff, Dr Abeya was the only other doctor to mention the conflict of interest issue. She said that the appellant had considerable issues with her stepsister around August 2011 (which was about the time of the conflict of interest incident) and that date was important because it was consistent with a “possible worsening” of the appellant’s symptoms. Given the entry in Dr Ruff’s notes I have referred to, and given that Dr Abeya puts the incident no higher than a possible cause of a worsening of the appellant’s symptoms, I do not accept that it was an important or significant event in the overall assessment of causation and I do not accept that, on its own, it would have caused the injury. At its highest, it may have been a factor, but that does not stop employment being the substantial contributing factor.
It follows that I am comfortably satisfied that the appellant’s employment was a substantial contributing factor to the contraction of her major depressive disorder. Indeed, though employment only has to be a substantial contributing factor, I am satisfied that, in this case, it was the substantial contributing factor to the injury.

What is the deemed date of injury?

Where the injury is a disease which is of such a nature as to be contracted by a gradual process, the injury is deemed to have happened at the time of the worker’s death or incapacity (s 15(1)(a)(i)). The incapacity referred to is the “incapacity for which compensation is claimed” (GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 per Sheller JA at 195F–G (Priestley and Clarke JJA agreeing); P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481; 20 NSWCCR 554 at [24]).
The incapacity for which the appellant first claimed compensation started on 22 September 2011 when Dr Ruff issued her initial WorkCover certificate, certifying the appellant unfit from that date, and that is the deemed date of injury.
However, as the appellant returned to work in October 2011 and has alleged that further incidents occurred after her return, it is necessary to consider if those incidents caused an aggravation injury under s 4(b)(ii).

Did the appellant also suffer an aggravation injury under s 4(b)(ii)?

In determining if a worker has suffered an aggravation injury, it is necessary to ask the four questions posed by Windeyer J in Semlitch at 638, namely:
(a)     Was the appellant suffering from a disease?
(b)     If so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c)     If so, was the appellant’s employment a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration?
(d)     If so, did incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?
I have already determined that the appellant is suffering from a disease.
There is an aggravation of a disease if it is made more grave or more serious in its effects upon the patient (Semlitch at 639).
I accept that the appellant was distressed by the conversations she had with the Senior Sergeant Liddiard on 11 October 2011, her first day back after leave. Those conversations related to the photo of Senior Sergeant Liddiard’s daughter, which the appellant had defaced by drawing a moustache on it, and to the appellant’s relationship with Senior Sergeant Liddiard in general. The appellant saw the drawing as a joke. Understandably, Senior Sergeant Liddiard did not.
As with other incidents, I think it is inaccurate to describe Senior Sergeant Liddiard’s actions as bullying and harassment. Nevertheless, the conversations were real events that the appellant found distressing, occurring on her first day back after being off on a WorkCover certificate. The fact that the appellant considered it harassment, and that it adversely affected her, is corroborated by Dr Ruff’s note of 24 October 2011, which recorded “[h]arassed by superior on first day back” and that the appellant was “[f]inding it difficult to stay at work”. Senior Sergeant Liddiard’s evidence also confirms that the appellant was extremely distressed by the incident.
As it is not open to the respondent to argue that the appellant’s injury was wholly or predominantly caused by this incident (because there is no evidence to that effect), the reasonableness of Senior Sergeant Liddiard’s conduct does not arise.
The conversation between the appellant and Sergeant Nicol on 25 October 2011 was, in my view, evidence of significant friction between the two officers that also caused the appellant distress. The conversation was clearly over work issues, namely, clarifying the days on which the appellant was to work. I accept the appellant’s evidence that Sergeant Nicol spoke to her in a hostile manner, which is confirmed by the fact that Sergeant Nicol agreed she told the appellant not to be a “smart arse”. That this incident adversely affected the appellant is confirmed by Dr Ruff’s note on 31 October 2011 that a superior had abused her by phone on 25 October 2011 and that she had “increasing anxiety”.
Dr Ruff issued a WorkCover certificate on 31 October 2011 certifying her fit for work on Thursdays and Fridays stating, among other things, that the appellant was not to work with Senior Sergeant Liddiard or Sergeant Nicol, and the appellant’s reaction to the email Sergeant Nicol sent on 1 November 2011 must be viewed in this context. She said that Sergeant Nicol’s email, which she read on 3 November 2011, made her feel “upset and traumatised”. It is clear that she viewed the email as a breach of the terms of the certificate of 31 October 2011. That she reacted in the way she said she did is confirmed by Leading Senior Constable Purcell.
The appellant stopped work on 4 November 2011 with a certificate from Dr Ruff certifying her unfit until 2 December 2011. Dr Ruff described the injury as having occurred due to increasing difficulties with coping with work pressures, the death of a fellow worker on 3 June 2010, and increasing harassment and bullying by supervisors at work.
Having regard to this history, I am comfortably satisfied that the appellant suffered an aggravation of her major depressive disorder as a result of the incidents that occurred in October and November 2011, which clearly made the symptoms of her disease more grave and more serious in its effects on her. There being no other causes of the aggravation injury, I am also satisfied that the appellant’s employment was a substantial contributing factor to the aggravation.
The incapacity for which the appellant first claimed compensation in respect of the aggravation injury occurred on 4 November 2011 and that is the deemed date of injury. I am satisfied that the effect of the aggravation is continuing. Even if the effect of the aggravation has ceased, the effect of the s 4(b)(i) injury is clearly continuing.

ALTERNATIVE FINDING

If I am wrong in my conclusion that the injury is a disease that was contracted by a gradual process, and the better view is that the appellant suffered a personal injury on or about 3 June 2010, or that the disease was contracted on 3 June 2010, I am of the view that the injury was received in the course of the employment and arose out of it, and that employment was a substantial contributing factor to it.
That is because the injury was not solely caused by the death per se, or by the receipt of the news of the death in the course of the appellant’s employment and because, as I have also explained above, Stewart and Scarce are both distinguishable on their facts. It was caused, on this alternative finding, by a combination of the receipt of the news at work and the fact that, the day before she received that news, the appellant had, in the course of her employment, handled the gun and, in particular, the ammunition that Ms AQ used to take her life.
The relevance of the handling of the ammunition has been discussed above and those observations are equally applicable here. In circumstances where both the appellant and Ms AQ were police officers required to carry guns in the course of their employment, and where the handling of the ammunition has figured so prominently in the medical histories, the conclusion is inescapable that, if the appellant suffered a personal injury on 3 June 2010, or contracted her disease on that day, her employment was a substantial contributing factor to the injury.

CONCLUSION

The Senior Arbitrator erred in her approach and conclusions on liability. With the consent of the parties, I have re-determined the matter and, based on the submissions and the evidence, have determined that the appellant has suffered a s 4(b)(i) injury, that is, a disease contracted in the course of her employment and to which her employment was a contributing factor, and a s 4(b)(ii) aggravation injury. I am satisfied that her employment was a substantial contributing factor to the injuries. The deemed date of injury for the s 4(b)(i) injury is 22 September 2011 and for the s 4 (b)(ii) injury is 4 November 2011.
Should it become relevant, it should be noted that, as the pathology is the same in both injuries, if there is an assessment of lump sum compensation, the impairment, if any, from the two injuries is to be assessed together as one impairment (Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288).

DECISION

The determination of 27 September 2012 is revoked and the following orders made:
“1. The applicant worker suffered a disease injury under s 4(b)(i) of the Workers Compensation Act 1987 in that she contracted a disease in the course of her employment to which her employment was a contributing factor.
2.    The applicant’s employment was a substantial contributing factor to the injury.
3. The deemed date of injury for the s 4(b)(i) injury is 22 September 2011.
4. The applicant suffered an aggravation injury under s 4(b)(ii) of the Workers Compensation Act 1987 to which her employment was a substantial contributing factor.
5. The deemed date of injury for the s 4(b)(ii) injury is 4 November 2011.
6.    The respondent is to pay the applicant’s costs of the arbitration on 24 August 2012.
7. The arbitration on 24 August 2012 is certified complex for the purposes of Schedule 6, Table 4, Item 4, of the Workers Compensation Regulation 2010 and there is a 30 per cent increase applied to the costs applicable to each party.
8.    The matter is remitted to a different Arbitrator for determination of the applicant’s entitlement to weekly and other compensation, and any other outstanding issues.”

COSTS

The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,530 plus GST.

Bill Roche

Deputy President
6 March 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE