Millman v South Australian Superannuation Board - [2018] SADC 45

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MILLMAN v SOUTH AUSTRALIAN SUPERANNUATION BOARD
[2018] SADC 45
Judgment of His Honour Judge Tilmouth
8 May 2018
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - GENERALLY
The appellant was denied a special police disability pension on the ground that his Post Traumatic Stress Disorder was not demonstrated to result from criminal conduct directed at him, and on the ground that his exposure to child sexual abuse during the course of his duties as a Detective, the PTSD 'was not a direct and immediate result' of that exposure.
Held:
1. The Board erred insofar that there was no relevant criminal conduct, but that conduct did not result in the PTSD. This decision is therefore affirmed.
2. The Board erred in concluding that the PTSD could not be a 'direct and immediate result' of exposure to child pornographic material by concluding that the condition 'built up over time'. The phrase 'direct and immediate' is not time related.
3. Appeal upheld, decision of the Board rescinded and remitted for further consideration.
Southern State Superannuation Act 2009 (SA) s 3, s , s 18(3), s 18(4) s 22(3), s 22(3)(b), s 25, s 30, s 30(2)(e); Southern State Superannuation Regulations 2009 (SA) reg 38A(6); District Court Act 1991 (SA) s 42B, s 42C, s 42E(1), s 42F, s 42F(c); District Court Civil Rules 2006 (SA) DCR 279A(2); Criminal Law Consolidation Act 1935 (SA) s 19(2), s 63, s 63A, s 63B, s 63C(1)(2a)(a), s 85(2), s 85(3); Commissioner for Consumer Affairs v McMurray (2017) 128 SASR 1; R v Oliver [2003] 1 Cr App R 463; R v Ryan [2012] SASCFC 136; Baldwin v Police [2007] SASC 214; R v Reilly [2013] SASCFC 106; R v Ohmer [2011] SASCFC 44; R v HIll [2011] SASR 588; Insurance Commissioner of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89; Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Limited (2005) 13 ANZ INS CAS 61-643; Hughes v Lord Advocate [1963] AC 837; March v E & MH Stranmare Pty Limited (1991) 171 CLR 506; Medlin v State Government Insurance Commission (1995) 182 CLR 1; Baker v Willoughby [1970] AC 467; Nicholson v Walker & Wolf (1979) 21 SASR 481; Jaensch v Coffee (1984) 155 CLR 549; Garla v Preston (1991) 172 CLR 243; Rosenberg v Percival (2001) 205 CLR 434; Neindorf v Junkovic (2005) 80 ALJR 341; Beckwith v The Queen (1976) 12 ALR 33; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; American Dairy Queen (QLD) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677, referred to.
State Government Insurance Commission v Sinfein Pty Ltd (1996) 15 WAR 434; Insurance Commissioner of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89, applied.

MILLMAN v SOUTH AUSTRALIAN SUPERANNUATION BOARD
[2018] SADC 45
Contents
The proceedings
Underlying facts
Postings with SAPOL
Investigation of a person of interest
Two brothers investigation
The bus driver investigation
Unfitness for work
Statutory context
The appeal process
The appeal proceedings
Underlying medical evidence
First appeal ‘direct and immediate result of conduct’ – reg 38A(1)(b)(ii)
Second application reg 38A(1)(b)(i)
First application reg 38A(1)(b)(ii)
Conclusion and Orders
The proceedings

Mr Millman appeals against decisions of the Southern State Superannuation Board to deny him a special police disability pension. At issue is whether during the course of his duties as a policeman he was caused ‘direct and immediate’ injury or caused injury as a result of criminal conduct directed at him on the part of another. The Board reject his case on both grounds. He contends in these appeals that both decisions were erroneous.
Underlying facts
Postings with SAPOL
Until 21 August 2012, Mr Millman held the position of Detective Brevet Sergeant with the South Australian Police (SAPOL) stationed at the Christies Beach Crime Investigation Branch, in what was known as the ‘Family Violence Investigation Section’. It was in around 2007 that he was first transferred to this position. He ceased employment altogether with SAPOL on 31 July 2016, having joined the force in 1989 after serving six years in the Army. His entitlement to the subject pension would therefore come to an end the day after leaving SAPOL: reg 38A(6) Southern State Superannuation Regulations 2009 (SA). During the intermediate years he performed various duties, including patrols, criminal investigation, counter-terrorism and teaching at the Fort Largs Police Academy.
His work in the Family Violence Section was onerous and quite difficult, to say the least. It involved the investigation of offences relating to the sexual abuse of children between the ages of under 12 months and 17 years. These duties required him to view and categorise thousands upon thousands of images and video clips for the purposes of investigating and preparing for the prosecution of offenders.[1] The demanding and distasteful duty to categorise images and video files stems from the adoption in our sentencing jurisprudence of the scale of ‘increasing seriousness’ of child pornography offences developed by the United Kingdom Court of Criminal Appeal in R v Oliver,[2] see for instance R v Ryan,[3] Baldwin v Police,[4] R v Reilly,[5] R v Ohmer,[6] and R v Hill.[7] Those categories are:[8]
1.   Images depicting erotic posing with no sexual activity.
2.   Sexual activity between children, or solo masturbation by a child.
3.   Non-penetrative sexual activity between adults and children.
4.   Penetrative sexual activity between children and adults.
5.   Sadism or bestiality.
[1]    Affidavit paras 21-44, 90-92, 105.
[2] [2003] 1 Cr App R 463, [11].
[3] [2012] SASCFC 136, [6], [42].
[4] [2007] SASC 214, [12].
[5] [2013] SASCFC 106, [8], [14].
[6] [2011] SASCFC 44, [16].
[7] (2011) 110 SASR 58, [15].
[8] R v Oliver [2003] 1 Cr App R 28, 467.
Investigation of a person of interest
In around 2008 Detective Millman (as he then was) was assigned to an investigation following allegations of offences committed against two female victims in that year. The nature of the investigation against this ‘person of interest’ involved SAPOL placing listening devices in the homes of the women, installing tracking devices on their cars and employing covert surveillance operations.
Later that year the person of interest reported to the Christies Beach Police Station in compliance with bail conditions, when he demanded to speak with Detective Millman. He told him that ‘he knew where my children lived and went to school and that I was being followed’.[9] Not unsurprisingly this concerned him and caused him to become anxious and stressed.[10] As a consequence he produced a photograph of this man to his children so that they could avoid him.
[9] Affidavit para 49.
[10] Affidavit para 50.
On about 20 December 2008 Detective Millman’s partner received a message that he had been admitted to the Lyell McEwin Hospital. Upon enquiry she ascertained there was no record of his admission, which turned out to be the fact.[11] Again not unsurprisingly, Detective Millman suspected the person of interest had fabricated this message.
[11] Affidavit paras 52-53.
Next on about 19 January 2009 Detective Millman awoke to find the wheel nuts on the front left tyre of his motor vehicle loosened, it being parked on the front lawn of his home.[12] Then around 13 April 2009 he discovered a substantial amount of acid on the driveway of his home near the rear of his vehicle, which had discoloured the driveway and the rear of his car.[13] Later on 21 April 2009 he found the petrol filler door cap of his vehicle opened and the petrol cap loosened, although he did not consider fuel was removed.[14] Following these events and also after speaking with another Detective Sergeant, Detective Millman formed the view it was likely this person of interest had tampered with and damaged his car and driveway. As a consequence he requested SAPOL to conduct a ‘full threat assessment of [the person of interest], as well as to initiate electronic and physical surveillance’ of him.[15] SAPOL declined to install video surveillance of his home.[16]
[12] Affidavit para 54.
[13] Affidavit para 55.
[14] Affidavit para 56.
[15] Affidavit para 59.
[16] Affidavit para 50.
As Detective Millman formed the view that he was ‘personally targeted’,[17] these intrusions into his personal space continued to cause him ‘significant stress’ and to become ‘increasingly fearful and hypervigilant’, as well as concern for his personal safety and that of his family. He endeavoured to deal with the situation without psychological assistance, hoping to manage these symptoms on his own.[18] It was in this period that Detective Millman considered the circumstances had ‘weakened my resistance to the impact of the images and stalking referred to above’.[19]
[17] Affidavit paras 62-63.
[18] Affidavit para 63.
[19] Affidavit para 64.
Two brothers investigation
On 21 February 2009 Detective Millman was tasked with the ‘immediate attention and investigation’ of a notification related to the alleged sexual assault of two brothers aged 3 and 4 by a contracted Families SA carer.[20] During the course of this investigation he observed both boys interviewed and he later arrested the suspect. When interviewed, the suspect claimed the mother of the boys ‘had put the boys up to making the allegations’.[21] A search of the suspect’s home produced computer images and videos of underage girls performing sexual acts.[22] The allegations pertaining to one of the brothers was dropped ‘due to his limited verbal ability’, as was the other following a further 18-24 month proofing period.[23]
[20] Affidavit paras 80-83.
[21] Affidavit paras 88-89.
[22] Affidavit paras 90-92.
[23] Affidavit paras 96-99.
In the meantime Detective Millman came under internal investigation for inappropriately accessing confidential records in relation to the person of interest inquiry, which he claims caused him ‘no undue distress compared to the stalking and viewing of images’.[24]
[24] Affidavit paras 60, 100-103.
After the charges in respect of the two brothers were dropped, he continued involvement in respect of a possession charge based on the images found on the suspect’s hard drive, for which he was required to prepare and view for the DPP.[25] It was at this stage that he commenced consultations with his general practitioner Dr Jaksic for anxiety and depression. Dr Jaksic certified him unfit for work for three months and devised a Mental Health Care Plan as he was continuing to have sleeping and eating difficulties in early 2011.[26]
[25] Affidavit paras 104-105.
[26] Affidavit paras 104-107.
The bus driver investigation
By August 2010 another investigation of sexual abuse began to occupy his worktime and attention. His distress was compounded by seeing firsthand the increased vulnerability of the child victims.[27] This investigation related to a ‘special needs students’ suffering a variety of disabilities alleged to have been sexually assaulted by a bus driver who regularly conveyed six such children aged from 6 to 8 years to and from school.[28]
[27] Affidavit paras 77-79.
[28] Affidavit paras 66-69.
Soon after commencing this investigation he confronted the driver, interviewed him and assisted in proofing the children concerned during which allegations of ‘physical and sexual assault’ emerged, two of them ‘graphic’.[29] Meetings with the parents proved difficult. Matters compounded by a ‘significant lack of resourcing’,[30] and led to further frustration when the Department of Public Prosecutions (DPP) declined to prosecute.[31] Throughout this investigation he continued to experience difficulty with sleeping, nightmares, eating and distress.[32]
[29] Affidavit paras 70-73.
[30] Affidavit paras 74-76.
[31] Affidavit para 78.
[32] Affidavit paras 77-79, Appeal Book Tab 7.
Unfitness for work
Detective Millman was certified unfit for work on 15 February 2011 ‘as a result of anxiety and depression’ and feeling lethargic.[33] He utilised his accrued sick leave entitlements during this period, was prescribed medication and referred to a psychologist Dr John Bowling whom he first saw on 18 March 2011.[34] He returned to work on 30 May 2011 with difficulty, feeling only ‘slightly improved’.[35] He was subsequently approved for special leave with pay from 8 June to 20 June 2011.[36] Following three sets of knee surgery between September 2011 and January 2012, he returned to work on restrictive duties in February or March 2012.[37] By 19 August 2012 he was transferred to general criminal investigation duties without consultation, and later transferred to the South Coast CIB. Around 21 August 2012 he was again certified ‘unfit for work as a result of … psychological injury and … diagnosed with a major depressive disorder’.[38]
[33] Affidavit paras 107-108.
[34] Affidavit paras 107-108, Appeal Book Tab 8.
[35] Affidavit paras 109-111.
[36] Affidavit paras 112-113.
[37] Affidavit para 114.
[38] Affidavit para 119.
By 4 September 2012 Detective Millman had lodged a claim for workers compensation as he continued experiencing the sleeping and eating disorders, together with an overwhelming sense of lethargy.[39] The aforesaid application for workers compensation was made on 4 September 2012. It specified the nature of the injuries as ‘multiplying work stressors, adjustment disorder’.[40]
[39] Affidavit paras 120-121.
[40] Appeal Book Tab 3.
He first lodged an application for a disability pension with SAPOL on 20 August 2015, declaring in it that his injury occurred as a:[41]
… direct and immediate result of conduct that constitutes a criminal offence in the course of my involvement in police operatives directed at the investigation of criminal conduct that appears to be criminal.
A second an application was lodged with SAPOL on 17 October 2016 on the basis of ‘conduct directed at me that constitutes a criminal offence’.[42]
[41] Appeal Book Tab 1.
[42] Appeal Book. Tab 2.
Statutory context
The Southern State Superannuation Act 2009 (SA) establishes a Superannuation Scheme for persons employed in the public sector. The payment of superannuation benefits is provided for in Part 2, Division 4 thereof. Sections 18(3) and (4) authorise payments for ‘invalidity’, a term defined in s 3 as meaning ‘physical or mental incapacity to carry out the duties of employment’. A wide Regulation making power is conferred on the Governor by s 30 thereof, including those in relation to ‘benefits and how and when they are paid or dealt with’: s 30(2)(e). Section 22(3) of the Southern State Superannuation Act further provides for the making of Regulations in respect of insurance benefits for the purpose of ‘differing amounts of invalidity’ and s 22(3)(b) facilitates the making of Regulations providing for:
… a different provision according to the various classes of members, matters or circumstances to which they are expressed to apply …
Subdivision 4A of Division 2 of the Southern State Superannuation Regulations provides for special disability pensions for Police Officers. Regulation 38A(1) of the Southern State Superannuation Regulations under which Mr Millman’s applications were made, establishes that regime in these terms:
Subdivision 4A—Special disability pension for police officers
38A—Police disability pension
(1) Pursuant to section 22(1) of the Act, but subject to this regulation, a police officer is entitled to a pension under this regulation (a police disability pension) if—
(a) the officer is temporarily or permanently incapacitated for work as a result of a physical or psychological injury sustained when he or she was on duty or lawfully exercising the powers of a police officer; and
(b) the injury—
(i) resulted from conduct directed at the officer that constitutes a criminal offence; or
(ii) occurred as a direct and immediate result of conduct that constitutes a criminal offence in the course of the officer's involvement in police operations directed at the investigation of criminal conduct, or conduct that appears to be criminal; or
(iii) occurred as a direct and immediate result of conduct that constitutes a criminal offence by a person who has been apprehended or who the officer is attempting to apprehend.
The expressions ‘resulted from conduct directed at the Officer that constitutes a criminal offence’ and ‘occurred as a direct and immediate result of conduct that constitutes a criminal offence’ form the focus of these appeals. The first pension application relates to the latter, whereas the second relates to the former expression.
The appeal process
The South Australian Superannuation Board (the Board) is created by s 9 of the Southern State Superannuation Act. Section 25 thereof provides for an appeal to the Administrative and Disciplinary division of the District Court. By virtue of s 42B of the District Court Act 1991 (SA) subdivision 2 of Part 6 applies to ‘appellate jurisdiction conferred on the Court by another act’. Section 42F confers on the District Court powers of affirmation, rescission and remission. After ‘giving due weight to the decision being appended appealed against’, the court may consider there are ‘cogent reasons’ to depart from that decision: Commissioner for Consumer Affairs v McMurray.[43]
[43] (2017) 128 SASR 1.
In its letter of 3 August 2016, the Superannuation Board advised Mr Millman that it resolved to uphold an original decision to deny payment of the special Policy Disability Pension. After quoting the operative portions of reg 38A(1)(b), the letter continued:[44]
Mr Millman has not provided evidence of any conduct or incident which had a ‘direct and immediate’ effect on him. Rather, the medical evidence shows that his condition built up over time. The evidence also suggests that other factors contributed to his psychological injury, other than those incurred as a result of his criminal investigations.’
[44] Appeal Book, Insert at Tab 30.
Although it is not apparent from the papers, it is agreed on both sides that the Board facilitated a further appeal by Mr Millman on account of additional materials not previously before it.[45] The Board relied substantially upon an Affidavit of Mr Millman, supplemented by reports from the psychiatrist Dr McKenny, together with a contemporaneous note sent to his superiors about the additional materials.[46] The further appeal was considered by the Board on 24 February 2017. The Board’s resolution is contained in a letter of that date to Mr Millman’s solicitor:[47]
The Board considered the new application and additional information at its meeting on 22 February 2017. The Board declined the Police Disability Pension claim on the basis that Mr Millman has not clearly demonstrated that his injury resulted from conduct directed at him that constitutes a criminal offence, in accordance with Regulation 38A(1)(b)(i) of the Southern State Superannuation Regulations 2009.
[45] Appeal Book, Tab 2, T95.1-97.8.
[46] Appeal Book, Tab 24.
[47] Appeal Book, Tab 30.
It can be seen the first decision of the Board was determined under reg 38A(1)(b)(ii) of the Southern State Superannuation Regulations whereas the second of 24 February 2017 was determined according to reg 38A(2)(b)(i). Resolution in this way was consistent with Mr Millman’s respective applications for the Police Disability Pension of 20 August 2015 and 17 October 2016.[48]
[48] Appeal Book Tabs 1 and 2.
The appeal proceedings
Although both the Southern State Superannuation Act, and Part 6 Division 2 of the District Court Act are silent as to the time within in which an appeal is to be launched, by virtue of DCR279A(2) of the District Court Civil Rules 2006 (SA), time to appeal is limited to ‘21 calendar days’. However s 42C of the District Court Act permits the court to extend time in which to appeal. A first notice of appeal was filed on 23 August 2016 within time, whereas the second filed on 29 March 2017 was a few days out of time. At the invitation of the court the parties were amenable to making an order by consent ‘that so far as is necessary time to extend the filing of the second notice be extended to 29 March 2017’. Accordingly there are then two separate appeals before the court under consideration.

The appeals proceeded in the District Court on the basis of the materials submitted to the Board, together with an additional report of Dr McKenny of 24 August 2017 which was not before the Board.[49] This was supplemented by oral evidence by way of cross-examination of Mr Millman himself as well as Dr McKenny at the request of counsel for the Board, Mr Keane. At the invitation of the court Dr McKenny produced extracts of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5(R)). The contents of these appear later. These materials were received in the appeal process by consent of both parties pursuant to s 42E(1) of the District Court Act. The appeals otherwise proceeded by way of submissions as to the scope and effect of the Regulations as they applied to the decisions of the Board.
[49] Appeal Book, Tab 30.
Underlying medical evidence
The relevant facts and circumstances referred to by Mr Millman in his affidavit are not disputed. What is in dispute are the inferences to be drawn from them, and whether they support the conclusion that he sustained ‘a physical or psychological injury’ within the meaning of reg 38A(1)(a), either resulting from criminal conduct directed at Mr Millman, or as a direct and immediate result of criminal conduct in which he was involved.
The case for Mr Millman depends largely on the reports and evidence of Dr McKenny. In addition to running a small private practice one afternoon a week in metropolitan Adelaide, Dr McKenny is presently the Acting Chief Psychiatrist of South Australia.[50] In this latter capacity through his engagement in the public sector, he has direct and frequent exposure to child sexual abuse cases.[51] Dr McKenny first became involved with Detective Millman on 18 September 2012 in the context of the Workers Compensation application. On 10 January 2013 he certified Detective Millman unable to return to work at the Christies Beach Police Complex.[52]
[50] T69.18-.27.
[51] T69.30-70.3.
[52] Appeal Book, Tab 10.
The General Practitioner Dr Murray reported first seeing Detective Millman in relation to ‘psychological issues’ on 22 August 2012. At that time he presented with symptoms ‘consistent with major depression, and had obvious work stressors that were contributing’.[53] In her report compiled in the context of the workers compensation claim, she added:[54]
These issues went back some years when previous notes were examined, including his work in child sexual abuse, with huge caseloads and long often unhospitable hours, dealing with grieving families who had dead children, having to remain impartial, and strong.
Dr Murray added that Detective Millman ‘was not sleeping, had low mood, tiredness, low energy, short term memory problems, bad dreams, intrusive thoughts regarding his work’.
[53] Appeal Book, Tab 12.
[54] Ibid.
In a report of 30 August 2013, Dr McKenny noted completing 17 consultations with Detective Millman since the first of 18 September 2012, and that he participated in a work rehabilitation program, was taking regular medication and was improving.[55] Dr McKenny considered the ‘work at the Child Protection Services had been extremely challenging’.[56] The report went onto observe the:[57]
… severity of his illness would justify a diagnosis of a Major Depressive Disorder …
and that the workplace was a substantive contributing cause to his illness … Ongoing perpetuating factors include: A conflict related to his son; and, issues related to starting a new family with his partner, Donna. Ongoing media attention relating to the issues of child sexual abuse is a significant ongoing stressor for Mr Millman. I do not believe that it would be appropriate for Mr Millman to return to work in the Child Protection Area as he is clearly quite sensitised and traumatised to the issue surrounding aspects of policing.
[55] Appeal Book, Tab 13, p 74.
[56] Appeal Book, Tab 13, p 73.
[57] Appeal Book, Tab 13, pp 74-75.
In a subsequent report dated 19 February 2015 again prepared in the context of Workers Compensation issues, Dr McKenny observes Detective Millman ‘… continues to experience distressing memories of the stressful work events that precipitated his depressive illness’. Dr McKenny continued:[58]
Dean is still moderately depressed and anxious, but has made some improvements from his initial treatment episode over two years ago. He continues to experience distressing memories of the stressful work events that precipitated his depressive illness. He remains anxious and stressed when dealing with issues relating to SAPOL. He is quite sensitive to media reports about child abuse matters. There is a pervasive feeling of mistrust regarding SAPOL and its intentions towards him. He has residual symptoms of poor sleep, poor concentration, poor attention and anhedonia.
[58] Appeal Book, Tab 17, p 85.
In the most recent report submitted to the court during the appeal, Dr McKenny provided these responses to questions from Mr Millman’s solicitor as follows:[59]
[59] Appeal Book, Tab 30. The solicitor’s letter of 30 June 2017 was also presented to the court at this time.
1Whether our client suffered any psychological condition and if so, the nature of that condition;
Mr Millman has suffered a Major Depressive episode in 2012 as a result of his employment with SAPOL. It is clear over time that he has developed symptoms consistent with Post-Traumatic Stress Disorder that would meet the diagnostic criteria according to DSM 5. He has significant co-morbid anxiety.
2Whether you consider our client was temporarily incapacitated for work as a result of any psychological condition occurring in or around 2012;
Mr Millman was incapacitated for work for an extended period as a result of his psychological condition, due to his employment with SAPOL from September 2012 onwards. He had a slow reintroduction to the workforce given the severe and chronic nature of his symptoms.
3Do you consider our client’s employment with SAPOL to be the significant cause of any psychological condition. In particular, can you please comment on the following:-
a.Whether you consider the process of viewing child pornography, as identified in the enclosed Affidavit, to be a cause of our client’s injury?
Is it my clear view that Mr Millman’s employment with SAPOL was the significant cause of the psychological condition. I agree with the view that the process of viewing child pornography led to Post Traumatic Stress Disorder symptoms, Anxiety and Depressed mood. In my opinion there is a direct correlation between the work undertaken by Mr Millman and his psychological injury.
b.Were the incidents of being followed, implicitly threatened by Peter Egan in relation to our client and his family, and the damage to our client’s property (including loosening of wheel nuts on his car, and the acid), causes of (as opposed in each instance to being determinative of) our client’s injury?
I am of the opinion that the threats attributed to Mr Peter Egan in relation to Mr Millman and his family about damage to property and threats of injury have been consistently described to me and I believe Mr Millman’s account of these events to be a significant stressor in the development of his illness.
4On the balance of probabilities, if the events identified above in 3a and 3b as being partial causes of our client’s injury had not occurred, do you consider that our client’s psychological condition would have occurred in any event?
I believe that as these events occurred in the course of his employment, Mr Millman suffered a severe depressive illness and PTSD which required extensive time off of work with his accepted WorkCover case and a prolonged period of rehabilitation. In my experience, I think it is highly unlikely that the severe and prolonged illness course would have occurred if it were not due to the psychological stress of the police work that has been outlined in the report and affidavit.
5Is it possible to offer an opinion that matters referred to in the Affidavit that have not been identified as being partial causes of Mr Millman’s injury above, were the cause of Mr Millman’s injury (in the sense that they alone would have resulted in the injury irrespective of the matters above), and if so what is that opinion?
Given my long involvement with Mr Millman, it is difficult to identify partial causes and attribute relative weightings to the psychological injuries suffered by Mr Millman. Put simply, Mr Millman suffered psychological injury as a result of his employment with SAPOL. There [sic] was a long-standing psychological disability that eventually partially resolved such that Mr Millman is now re-employed elsewhere in the South Australian Government.
6Any other comments you think many assist.
In summary, Mr Millman has clearly suffered from a psychological illness, namely Major Depressive Disorder. He has ongoing partial symptoms of a Chronic Post-Traumatic Stress Disorder as a result of his exposure to child sexual abuse images during his work as a Child Abuse Investigator. Other life stressors pale into minor significance when considering these factors. The perpetuating factor of the complicated WorkCover rehabilitation process clearly needs to be factored into the long-term view or Mr Millman’s treatment course, but the underlying origins are clear and I have no hesitation in reinforcing that view to the Court.
It was the reference to DSM-5 which prompted the inquiry from the court for the provision of same.[60]
[60] T68.25-69.13.
So far as is relevant to the present matter, DSM-5, 309.81 provides:
Diagnostic Criteria
Posttraumatic Stress Disorder
Note: The following criteria apply to adults, adolescents, and children older than 6 years. For children 6 years and younger, see corresponding criteria below.
A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
…
4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first respondents collecting human remains; police officers repeatedly exposed to details of child abuse).
Note: Criterion A4 does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related.
…
Diagnostic Features
The essential feature of posttraumatic stress disorder (PTSD) is the development of characteristic symptoms following exposure to one or more traumatic events.
…
Symptoms recurrence and intensification may occur in response to reminders of the original trauma, ongoing life stressors, or newly experienced traumatic events. For older individuals, declining health, worsening cognitive functioning, and social isolation may exacerbate PTSD symptoms.
…
Symptoms usually begin within the first 3 months after the trauma, although there may be a delay of months, or even years, before criteria for the diagnosis are met. There is abundant evidence for what DSM-IV called “delayed onset” but is now called “delayed expression,” with the recognition that some symptoms typically appear immediately and that the delay is in meeting full criteria.
…
Major depressive disorder. Major depression may or may not be preceded by a traumatic event and should be diagnosed if other PTSD symptoms are absent. Specifically, major depressive disorder does not include any PTSD Criterion B or C symptoms.
Dr McKenny elaborated under cross-examination on the opinions expressed in his report. He explained that his case notes and reports prepared for compensation ‘were predominantly about his depression and anxiety symptoms that we were treating him for and my focus in returning him to work’.[61] In other words in that context the focus was on therapy rather than diagnosis. As to the application of the DSM-5 criteria, he gave this answer to the following question:[62]
QAnd some factors that are more horrific such as the child sex investigations are more likely to be sitting below and more likely to be reactivated.
AThat’s right. I mean he clearly satisfies criteria and satisfied criteria, when I go back to it, for post-traumatic stress disorder and indeed in the current DSM-5, the criteria A which was the exposure to a stressful even in post-traumatic stress disorder is specifically mentioned in 1.4, of that exposure. An example is given of a police officers who are exposed to repeated images of child sexual abuse, satisfy the exposure criteria for post-traumatic stress disorder. So to elaborate upon my point, your Honour, what I’m saying is that we can go back and outline a post-traumatic stress disorder symptom or cluster of diagnosis to be made at the point that Mr Millman came in but his main symptoms on presentation were one of depression and anxiety.
[61] T63.27-.30, T71.32-72.13.
[62] T68.7-.24.
As to the factors that might have contributed to the diagnosis according to the DSM-5 criteria, he added the ‘work in that area of child abuse … was causing significant anxiety and stress …’ but that ‘the conflicts that Detective Millman was having with his superiors … were not as directly related to this child abuse …’.[63]
[63] T71.11-.15.
First appeal ‘direct and immediate result of conduct’ – reg 38A(1)(b)(ii)
The questions at issue here are essentially the meaning to be given to the phrase ‘the injury … occurred as a direct and immediate result of conduct …’. There is no disputing that as a Detective whilst stationed at Christies Beach in the Family Violence Section, he was otherwise involved in police operations directed at the investigation of criminal conduct that constitutes a criminal offence. Manifestly the investigation of child sexual abuse and exploitation fits that description.
It is important to recognise at the outset that reg 38A of the Southern State Superannuation Regulations is designed for the benefit of a specific and specialised class of police officers. It serves to confer ‘top-up’ police disability pensions for the benefit of a specific and narrow cohort of injured police officers having particularly onerous duties.
It is not in dispute that Mr Millman suffers psychological injury of the kind referred to in the expert reports. What is critically in issue is whether that condition was a ‘direct and immediate result’ of conduct amounting to a criminal offence acquired in the course of his involvement in police investigations. Mr Keane submitted on behalf of the Board that there was no evidence the prolonged and constant viewing of child pornography material was in a temporal sense ‘an immediate cause of the incapacitating injury’.[64]
[64] Written submission para 25.
Taken alone the adverb ‘direct’ retains a settled meaning. For instance in State Government Insurance Commission v Sinfein Pty Ltd,[65] it was held the composite expression ‘directly caused’ in the context of insurance policies, equated with ‘proximate cause’, that is a cause that was not the first or the last or the sole cause of loss, but rather the dominant ‘effective or operative cause’.[66] Special leave to appeal from this decision was refused by the High Court on 4 November 1996.[67] Nor was it questioned by the High Court later in Insurance Commissioner of Western Australia v Container Handlers Pty Ltd.[68]
[65] (1996) 15 WAR 434.
[66] Ibid 444, 452, 460-461. The phrase in question was ‘… in respect of the … bodily injury … directly caused by…’ at 445.
[67] [1996] 18 Leg Rep SL2a, 4 November 1996.
[68] (2004) 218 CLR 89, [5], [33], [37], [46], [49]. The phrase in question was ‘(D)irectly caused by… the driving of, [a] motor vehicle’.
Likewise in Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Limited,[69] the New South Wales Court of Appeal equated the expression ‘directly caused by’ in an insurance contract with ‘proximate or direct cause’. That court further held the term ‘directly caused’ excluded indirect or remote causes, but it did not mean there could be no step between the [conduct] and the damage.[70] This construction has the effect of excluding the common law principles of causation developed in Hughes v Lord Advocate,[71] and March v E & MH Stramare Pty Limited,[72] to the effect that the precise kind of damage caused need not be foreseen.
[69] (2005) 13 ANZ INS CAS 61-643. The terminology here was ‘directly caused by..’.
[70] Ibid at [90].
[71] [1963] AC 837, 846-847, 850, 853, 855-856, 857-858.
[72] (1991) 171 CLR 506, 535.
A number of sub-propositions distil upon closer analysis of the judgments in State Government Insurance Commission v Sinfein Pty Ltd:[73]
.the words ‘directly caused’ do not resurrect the former ‘direct consequences test for causation’: 443E.
.there is no difference in meaning between the words ‘direct’ and ‘proximate’: 443G, 452F, 461A, 461F.
.the expression ‘immediate cause’ is usually construed as equivalent to ‘proximate cause’ and not as an adjective of time; 444D.
.the use of the word ‘directly’ does not imply there can be no steps between injury and conduct; 445G.
.‘directly’ does not mean ‘immediately; 445G-446A, 452B.
.the addition of the adverb ‘directly’ to qualify ‘caused’ adds nothing to what is conveyed by ‘caused’; 446D
.the phrase ‘directly attributable to’ means substantial cause but not necessarily the sole cause; 447B
.using the word ‘directly’ serves to limit the test for causation at common law; 454B, 460B.
[73] (1996) 15 WAR 434, 445B, 453F, 458C, 461B.
The test at common law is less demanding, one essentially determined on the probabilities, as a matter of common sense and experience: Medlin v State Government Insurance Commission,[74] and March v E & MH Stramare Pty Ltd.[75] These principles of causation permitted recovery even in the case of ‘multiple contributing causes, subject to the principles of contributory negligence’: Baker v Willoughby,[76] and Nicholson v Walker & Wolf.[77] As mentioned earlier causation under these principles encompasses recovery for foreseeable injury even though the exact cause or manner of occurrence might not be foreseeable, as in Hughes v The Lord Advocate.[78] This principle was cited a number of times by the High Court without criticism: Jaensch v Coffey,[79] March v E & MH Stramare Pty Ltd,[80] Garla v Preston,[81] Rosenberg v Percival,[82] and Neindorf v Junkovic.[83]
[74] (1995) 182 CLR 1, 6.
[75] (1991) 171 CLR 506, 515, 533.
[76] [1970] AC 467.
[77] (1979) 21 SASR 481.
[78] [1963] AC 837.
[79] (1984) 155 CLR 549.
[80] (1991) 171 CLR 506.
[81] (1991) 172 CLR 243.
[82] (2001) 205 CLR 434.
[83] (2005) 80 ALJR 341 [55].
The greater difficulty arises with the addition of ‘immediate’ to the qualifying couplet in reg 31A(1)(b)(ii). These must be read in conjunction with each other and the addition of the word ‘immediate’ should not be treated as superfluous: Beckwith v The Queen.[84] So far the question of construction is concerned, it is necessary for the court to give effect to the clear meaning of the text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[85] Neindorf v Junkovic.[86] This being an exercise of a regulation making process, the court is unassisted by extrinsic aids.
[84] (1976) 12 ALR 333, 337.
[85] (2009) 239 CLR 27, [47].
[86] (2005) 80 ALJR 341, [41], [92], [113].
For the present it is sufficient to note that in ordinary parlance ‘immediate’ usually connotes a temporal association, such as ‘occurring or accomplished without delay’, or ‘instant’, or ‘relating to the present time or moment’ or as ‘having no time intervening’.[87] The gravamen of these definitions appear to import a time element. The definitions of most relevance contained in the Oxford English Dictionary are less concise:[88]
2a. Of a relation or action between two things: Acting or existing without any intervening medium or agency; involving actual contact or direct relation: opposed to mediate and remote.
This definition better accords with the understanding reached in SGIC v Sinfein that ‘immediate cause’ is equivalent to ‘proximate cause’. Whatever may be the proper interpretation of the dual requirements ‘direct and immediate’, it is clear enough that it was intended to introduce a more ‘vigorous test of causation’ than would otherwise apply: Transport Accident Commission v Jewell.[89]
[87] Macquarie Australian Dictionary 3^rd edition p 313.
[88] 2^nd Ed, Clarendon Press 1989.
[89] [1995] 1 VR 300, 316.

The judgment of McHugh J in Insurance Commissioner of Western Australia v Container Handlers Pty Ltd,[90] convincingly demonstrates the proposition that the expression ‘… caused by … requires a direct and immediate connection …’.[91] It is therefore likely that by adopting the terminology ‘occurred as a direct and immediate result’ in r 38A(1)(b)(ii) of the Southern State Superannuation Regulations, the draftsman imported a settled meaning given to analogous phrases in analogous contexts, such as insurance policies for personal injury. This construction is consistent with the principle that instruments such as Regulations are construed in conformity with the common law: American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd.[92] Accordingly, this portion of the Regulations must be taken as having the meaning identified by McHugh J in the above quoted passage and in Sinfein, that is to say the expression ‘occurred as a direct and immediate result …’ is to be interpreted as meaning the proximate result in the sense of the dominant, effective, or substantial cause of the injury, although not necessarily the sole cause.
[90] (2004) 218 CLR 89.
[91] At [19]-[21].
[92] (1981) 147 CLR 677,682.
Second application reg 38A(1)(b)(i)
Unlike reg 38A(1)(b)(ii), reg 38A(1)(b)(i) of the Southern Superannuation Regulations contains a relatively undemanding qualification for benefits, namely ‘resulted from conduct directed at the officer that constitutes a criminal offence’. Although this criteria also contains a causation component – resulted from - there is no qualification that it be either direct or immediate. There is no reason therefore other than to apply conventional causation principles to bear upon the proper construction of this part of reg 38A.
In this instance there can be no doubt of the existence of conduct directed at Mr Millman constituting a criminal offence in a number of respects. These include the direct threats to him at the Christies Beach Police Station which amount to the offence of making unlawful threats an offence contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). Insofar as the incidents in the driveway or front yard of his home are concerned, these amount to the offences of damaging property contrary to s 85(2) or (3) of the CLCA.
A subsidiary submission was mounted by Mr Huezenroeder for Mr Millman that another offence was constituted by the act of viewing pornographic material, the production or dissemination of which was unlawful under s 63, s 63A or s 63B of the CLCA, despite the fact that Mr Millman was insulated from prosecution by reason of having viewed it as a ‘law enforcement officer acting in the course of his … duties’, as provided for in s 63C(1)(2a)(a) of the CLCA. The fact of the matter is that no such offence was committed because the introductory words to s 63C(2a) expressly provide as much ‘(N)o offence is committed …’. More than that, any such criminal offence was not ‘directed at’ Mr Millman within the meaning of reg 38A(1)(b)(i) of the Southern State Superannuation Regulations.
The next question then is whether any psychological injury was sustained by Mr Millman as a result of those criminal offences. It is to be recalled the underlying injury itself, began as a Major Depressive Disorder culminating in Post-Traumatic Stress Disorder (PTSD) according to the DSM-5 diagnostic criteria. This drives the present enquiry back to the nature, onset and the cause of that psychological injury. In his report of 24 August 2017, Dr McKenny considered the threats to Mr Millman ‘to be a significant stressor in the development of his illness’ rather than the cause of it.[93] Although Dr McKenny described having difficulty in identifying ‘partial causes’ and in attributing ‘relative weightings to the psychological injury suffered’, he considered that the continuing chronic post-traumatic stress disorder was:[94]
… as a result of his exposure to child sexual abuse images during his work as a child abuse investigator. Other life pressures pale into minor significance when considering these factors.
This conclusion is consistent with Mr Millman’s own subjective appreciation of matters that these incidents left him ‘weakened … to the impact of the images’ and therefore more vulnerable or susceptible to the ensuing PTSD.[95]
[93] Appeal Book Tab 30, p 175.
[94] Appeal Book Tab 30, p 176.
[95] Affidavit para 64.
That being the situation, the PTSD constituting the psychological injury did not result from criminal offences directed at him, although they contributed to it. Insofar as the reasons of the Board dated 24 February 2017 are to be read as denying the existence of criminal conduct directed at him – which is far from clear - it fell into error. Even so, the Board was correct in any event by determining the subject injury did not result from it. This error provides a sufficiently cogent reason to depart from this decision of the Board, which must however be affirmed for the reasons just given.
First application reg 38A(1)(b)(ii)
It is clear from the affidavit evidence and the descriptions given to Dr McKenny by Detective Millman himself, that his duties involving the investigation of child sex abuse commenced no later than mid to late February 2009 with the two brothers investigations. The earlier ‘person of interest’ inquiry related to different kinds of offences. By August 2010 commenced investigations concerning the bus driver during which the difficulties in sleeping, eating and nightmares continued. He first saw a GP in February 2011 when he was declared unfit for work for a period of three months on account of stress.
It was in this period Detective Millman considered that he had ‘hit a brick wall’ and which led him to see the psychologist John Bowling on 18 March 2011. His report of 27 June 2011 recounts a further seven sessions since that first consultation and notes Detective Millman:[96]
… had a stressful job in SAPOL where a variety of things have occurred which had adversely impacted on his psychological health.
Unfortunately a diagnoses is not mentioned. Mr Bowling did however anticipate at that time ‘a near to full psychological recovery … given his reasonably strong pre-morbid personality’.
[96] Appeal Book Tab 8, p 62.
In the meantime the GP proposed a Mental Health Care Plan, whom Detective Millman consulted again twice in each of February, March and April – that is fortnightly – and again on 16 May 2011 before returning to work on 30 May that year. It is clear that he was uncomfortable with this situation and eventually took special leave without pay from 8 June until 20 July 2011.[97]
[97] Appeal Book Tab 5.
In the following months Detective Millman continued to work on child sex investigations, interrupted by the three knee operations between September or October 2011 and January 2012. He remained in the Family Violence Section at Christies Beach until certified unfit for work initially on 21 August 2012 by the psychologist Dr Begg and thereafter successively by a number of medical practitioners through to 27 November 2014, when he was certified fit to return on modified duties.[98]
[98] Appeal Book Tabs 13, 15, 17 and 30.
He first saw Dr Murray at South Care Medical Services on 22 August 2012, who diagnosed ‘depression and anxiety related to his work … in the Child Abuse area at Christies Beach’,[99] in her report of 26 July 2013:[100]
These issues went back some years when previous notes were examined, involving his work in child sexual abuse, with huge caseloads, and long often unhospitable hours, dealing with grieving families who had dead children, having to remain impartial, and strong.
In his report of 26 October 2012, Dr Begg diagnosed a major depressive disorder incapacitating Detective Millman for work and which required ‘longer treatment …’.[101] Soon after Dr McKenny recognised the ‘major depressive episode.
[99] Appeal Book Tab 11, p 70.
[100] Appeal Book Tab 12, p 71.
[101] Appeal Book Tab 9, pp 67-68.
It can be seen from the above summary that the exposure to child sex investigations and operations continued over the period of over three years between February 2009 through to around February or March 2012, if not later. The diagnosis of major depressive disorder based on the workplace was made on 21 August 2012 and refined to PTSD by 18 September that year.
The DSM diagnostic criteria quoted above require ‘exposure to … sexual violence … experiencing reported or extreme exposure to adverse details of the traumatic events … eg. Police officers reportedly exposed to details of child abuse’. It is unsurprising in the circumstances that Dr McKenny considered Detective Millman fitted this description.
As observed earlier, these later materials were not before the Board. The earlier reports it did have were generated in a workers compensation and therapeutic rather than diagnostic context, and were therefore necessarily founded on treatment and return to work rather than diagnoses. Indeed the diagnosis was and is not in issue. However the question of what was the operative cause was understandably barely explored by the Board, because it did not have materials dealing with it. Although the prevailing diagnosis was first made in August 2012, no-one has addressed the questions of when it began or manifested, and more to the point whether it can be said to be a ‘direct and immediate result’ of the prolonged and consistent exposure to child pornography investigations and material to which any Police Officer in Detective Millman’s position would be particularly vulnerable. Nor does it clearly appear whether the symptoms of PTSD began ‘within the first three months’ or whether there was ‘a delay of months, or years’ within the meaning of DSM-5. The material that does touch on these questions does however suggest the condition ‘went back some years’ before August 2012 in the words of Dr Murray and that the PTSD is a ‘result of … exposure to child sexual abuse images … and that the other life stressors pale into minor significance’, in the opinion of Dr McKenny. It is significant that DSM-5 identifies this very situation.
Conclusion and Orders
For the above reasons and based on the above materials, the PTSD injury was capable of coming within the requirements of reg 38A(1)(b)(ii) of the Southern State Superannuation Regulations. To the extent that the Board considered it did not, but rather ‘built up over time’ in its decision of 3 August 2016, it fell into error. As demonstrated above, ‘immediate’ is no adjective for time. This furnishes sufficient cogent reason to depart from this decision. The decision of the Board made on 22 February 2017 may have fallen into error in as much as it considered there was no criminal conduct directed at Mr Millman, however it must be affirmed on the basis that this conduct did not cause the PTSD.
The formal orders of the court are therefore:
1. Affirm the decision of the Southern State Superannuation Board made on 22 February 2017.
2. Rescind the decision of the Southern State Superannuation Board of 3 August 2016 and remit the matter to the Board for further consistent with these reasons, pursuant to s 42F(c) of the District Court Act.
3. Question of costs reserved for further consideration