NSW Police Force v Hahn - [2017] NSWWCCPD 51

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	NSW Police Force v Hahn [2017] NSWWCCPD 51
APPELLANT:	NSW Police Force
RESPONDENT:	Darryl Laurence Hahn
INSURER:	Employers Mutual Ltd – Treasury Managed Fund
FILE NUMBER:	A1-4684/16
ARBITRATOR:	Mr G Brown
DATE OF ARBITRATOR’S DECISION:	27 April 2017 and 10 May 2017 (Amended)
DATE OF APPEAL DECISION:	29 November 2017
SUBJECT MATTER OF DECISION:	Whether the Arbitrator was correct to find that the respondent worker had suffered incapacitating injury in the form of a psychological condition arising out of or in the course of his employment; whether the Arbitrator was correct to find that section 9A of the Workers Compensation Act 1987 had been satisfied upon the evidence
PRESIDENTIAL MEMBER:	Acting Deputy President Larry King SC
HEARING:	On the papers
REPRESENTATION:	Appellant:	Rankin Ellison Lawyers
Respondent:	Shine Lawyers
ORDERS MADE ON APPEAL:	1. The Amended Certificate of Determination dated 10 May 2017 is confirmed.

INTRODUCTION

This is an appeal from a decision of an Arbitrator finding in favour of the respondent worker, a former member of the NSW Police Force (the appellant). The respondent claimed weekly payments of compensation from 8 January 2016 and continuing, together with medical expenses from the appellant.
The respondent’s claim was that he suffered incapacitating psychological injury arising out of or in the course of his employment with the appellant, which injury also resulted in his incurring medical expenses.

BACKGROUND

The Application to Resolve a Dispute filed by the respondent alleged in Part 4 – Injury Details that the respondent’s psychological injury occurred on 9 August 2012 (a deemed date of injury) and happened “… in the course of his employment as a police office [sic] … exposed to traumatic incidents resulting in psychological injury deemed to have occurred on 9 August 2012.” This allegation of injury was not further particularised. However, whilst the “traumatic incidents” seem to have been left for elaboration and proof at arbitration, at least it seems to have been understood that the “psychological injury” was a post-traumatic stress order and/or major depressive disorder because the appellant’s s 74 notice dated 28 July 2016 disputed, amongst other things, that such conditions arose out of or in the course of his employment.
The appellant’s reply to the Application to Resolve a Dispute adhered to the s 74 notice. It thus put in issue whether the respondent had suffered injury within the meaning of ss 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act); whether he had so suffered a post-traumatic stress disorder and major depressive disorder; and asserted, in the alternative, that if the respondent had suffered a psychological injury it was caused by events unrelated in any relevant fashion to his employment. Further, in the alternative, it asserted that if there were any employment connection, the whole or predominant cause was reasonable action taken or proposed to be taken by the appellant with respect to performance appraisal and discipline. This last defence invoked s 11A of the 1987 Act.
The respondent’s claim came before Arbitrator Brown for hearing on 28 November 2016 and 1 February 2017, having previously been before him for the purposes of attempted conciliation on 16 November 2016. It appears that during reconciliation the issues in the case were, to some extent, narrowed notwithstanding that no overall resolution was achieved. At that time the allegation of injury in Part 4 of the application was amended so as to allege that “… in the course of his employment as a police officer [the respondent] was exposed to traumatic incidents and a pattern of behaviour thereafter and workload resulting in psychological injury deemed to have occurred on 9 August 2012.”
It will be necessary to advert to the evidence and arguments before the Arbitrator at greater length below, and I think it is only necessary and appropriate to make these further background comments now:
(a)    the appellant abandoned reliance on s 11A of the 1987 Act so that it became unnecessary for the Arbitrator, in the event that he found otherwise for the respondent, to consider whether the respondent’s injury was the result of reasonable action on the part of the appellant of the type referred to in
s 11A;
(b)    it was not in issue that the respondent had been attested as a serving police officer on 26 August 2005; had thereupon worked on general duties at Wollongong Police Station and had been exposed to a number of unpleasant and stressful events before transferring to the appellant’s prosecution branch on
19 October 2008; on 26 July 2008 had lodged an Accident Injury Report in respect of a psychological injury; in mid-2011 had sought a teaching secondment to the Goulburn Police Academy which had been granted, commencing on 8 November 2011 and terminating on 25 November 2011; and that on 9 November 2011 the respondent was made aware of an allegation of indecent assault against his partner;
(c)    it was the respondent’s case that stress at work had built up and become intolerable for him regarding the continuation of work on general duties, and that whilst he had always been interested in prosecution work, the need to get away from general duties was an important added factor in his seeking and securing of a transfer to the prosecution branch. It was further his case that although for the first couple of years when his workload was light and involved less complicated matters in the prosecution branch he managed satisfactorily, thereafter his workload became heavier and caused him further stress and that he was exposed to additional stress in his day to day dealings with his superiors, particularly Senior Sergeant Ryan, but also with workmates, and that his seeking a teaching secondment to the Academy was impelled by this state of affairs. Put another way, his case involved the contention that he was effectively unfit for general duties police work by late 2008 and by mid to late 2011 was incapacitated for or at least struggling with, a full range of prosecution work. A specific aspect of this was the respondent’s evidence, given in a statement dated 9 October 2012 made to an investigator appointed by the appellant’s insurer, that after he became involved in conducting more complicated prosecutions he was self-critical in respect, at least, of his performance in one case but more importantly became angry with and critical of the performance of police witnesses with whom he was dealing. This was brought to the attention of Sergeant Ryan who spoke to the respondent and decided to restrict him to work in Nowra, thus avoiding travel to Wollongong, a restriction which gave some benefit to the respondent, if only for a time;
(d)    the appellant challenged the above propositions. It asserted that the real cause of any psychological injury suffered by the respondent of an incapacitating kind was his reaction, an understandable one, to the charge against his partner, and a number of other events in the respondent’s life thereafter including criminal and disciplinary proceedings against him personally. I think it is fair to say that the appellant’s case was that such non-employment related matters were the cause of the respondent’s psychological injury, if any. Alternatively, if he was suffering from a psychological condition arising out of or in the course of his employment before the supervention of the other matters upon which it placed reliance, it was those other matters which caused incapacity. Thus there was no causal connection between any incapacity and the pre-existing employment related problems;
(e)    at all times the appellant submitted to the learned Arbitrator that by reason of inconsistencies between the respondent’s evidentiary statements themselves, and inconsistencies between those statements of his and the lay evidence of witnesses whose statements were admitted into evidence in the appellant’s case (Inspector Reitano and Senior Sergeant Ryan), and other evidentiary material gathered by investigators, the respondent’s evidence was not worthy of credit or was unreliable or both. The appellant also submitted that the medical evidence relied upon by the respondent was unacceptable because none of the doctors had a good enough understanding of the respondent’s history, whereas
Dr Roberts, a psychiatrist relied upon by the appellant, had such a history available to him when he wrote his final report. Taking account of the history, his evidence as it were negated the respondent’s case.
(f)    the respondent’s claim for workers compensation benefits was initially accepted and he received benefits for a period until they were ceased.
Notwithstanding that the respondent’s credit was called squarely into question before the Arbitrator, and that the challenge to his credit or reliability was supported in large part by reference to asserted inconsistencies as just mentioned, the appellant made no application to cross-examine the respondent. In argument before the Arbitrator it was pointed out for the respondent that the witnesses for the appellant abovementioned had not had supplementary statements taken from them specifically dealing with the detailed allegations made by the respondent of his interaction with them. The appellant through its counsel frankly maintained that it saw no need to cross-examine the respondent because of the serious inconsistencies that were plain enough upon the documentary evidence, and the view that it strongly advanced, that Dr Roberts had the only proper basis upon which to express a worthwhile opinion of a relevant kind. It would seem that the evidence certainly of Inspector Reitano, Senior Sergeant Ryan and possibly Sergeant Wunderlich, was not seen as needing to address the detail of the respondent’s evidence because there were discrepancies enough already exposed.
On 27 April 2017, the Arbitrator issued a Certificate of Determination in favour of the respondent. The Certificate of Determination is in the following terms:
“The Commission determines:

1. Applicant suffered psychological injury arising out of or in the course of his employment for which employment was a substantial contributing factor with a deemed date of injury 9 August 2012.

2. Respondent to pay the applicant weekly payments compensation pursuant to section 36 of the Workers Compensation Act 1987 (as it stood prior to the 2012 amendments) at the current weekly wage rate of $1,495.65 for the period 8 January 2016 to 7 July 2016 (26 weeks) in respect of a total incapacity and continuing pursuant to section 37 at the statutory rate for a single worker with no dependents for the period 8 July 2016 to 30 September 2016 at the rate of $480.50 per week, and at the rate of $484.10 from 1 October 2016 to 31 March 2017 and then at the rate of $490.40 from 1 April 2017 and continuing at the statutory rate (as adjusted) for a single worker with no dependents.

3. Respondent to pay the applicant’s medical and related treatment expenses pursuant to section 60 of the Workers Compensation Act 1987.

4. Respondent to pay the applicant’s costs as agreed or assessed.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

On 10 May 2017, the Arbitrator issued an Amended Certificate of Determination. It amended order [4] to:
“4. The respondent is to pay the applicant’s costs as agreed or assessed. I certify the matter complex and order an uplift of 30 per cent for both parties under Table 4, item 4 of Schedule 6 of the Workers Compensation Regulation 2010. Complexity is certified due to the preparation required because of the factual background, consideration of multiple statements, and medical reports notes and factual documentation, extensive history chronologies, and complexity of a legal and medical nature noting the matter was heard over two days and the applicant also provided extensive written submissions written submissions.”

THRESHOLD MATTERS

There is no dispute that the threshold requirements of sub-ss 352(3) and (4) of the Workplace Injury Management and Workers Compensation Act 1998 have been met.

ON THE PAPERS

The parties are in agreement that this appeal may be dealt with “on the papers”. Upon my own consideration of the material before the Arbitrator, which is of course the material now before me, I am satisfied that this is a proper approach and probably the only realistic approach.

FRESH EVIDENCE

Neither party sought to lead fresh evidence upon the appeal of any kind; oral or documentary.

GROUNDS OF APPEAL

The following grounds of appeal are raised:
(a) “the Arbitrator erred in law or otherwise denied the appellant procedural fairness by failing to provide adequate reasons in determining that the respondent was injured arising out of or in the course of employment and that such injury was caused pursuant to s 9A by employment alternatively committed a jurisdictional error in so doing” (Ground No 1);
(b) “the Arbitrator denied the appellant procedural fairness by failing to give adequate reasons as to why he accepted Dr Smith and Dr Selevstratan over Dr Roberts” (Ground No 2), and
(c) “the Arbitrator erred in his determination of whether or not the worker had discharged his onus of proof and causation pursuant to s 9A of the 1987 Act” (Ground No 3).

THE EVIDENCE BEFORE THE ARBITRATOR AND HIS DECISION

I believe it is appropriate to start with the written evidence of the respondent, working through it chronologically in summary form.
The first detailed account that the respondent gave, which extends to relevant events, was when he was interviewed by Senior Sergeant John Graham, assisted by Inspector Reitano, on 10 May 2012. The transcript of the interview was part of the appellant’s case before the Arbitrator, being an annexure to its Reply. It is clear from the transcript that allegations about the respondent taking prohibited drugs and destroying computer hard drives following the arrest of his partner in November 2011 had been made against him. They were put to him in the interview and denied. It was also put to him that whilst he was on sick leave he went to Thailand on holiday in March 2012 in contravention of police policy requirements. He agreed that he was on sick leave for non-work related reasons, not covered by WorkCover and that although he was not aware of any written policy prohibiting his trip, he had spoken to Inspector Reitano and, as a result of that conversation, knew that he was acting contrary to proper procedure. He agreed that what he did was “stupid”, but said that the opportunity of the trip came up at short notice and that he received medical advice that it would be good for him and he did not want to miss it. He was subsequently given a warning notice dated 4 July 2012 in respect of his transgression.
The record of interview and warning notice are of very limited significance. There was no occasion for any discussion of the respondent’s medical condition or events that might have been relevant to its causation and in any event, as noted above, the appellant does not rely on s 11A. The respondent’s answers about his leave in February/March 2012, acknowledging that he was off work for personal reasons, is the only feature of the record of interview which could be thought to be material and it is relied upon by the appellant.
Next, the respondent made the statement referred to above (at [6(c)]) dated 9 October 2012 taken by the investigator. It extends over ten pages and speaks of the distressing episodes in which he was involved at work and his progression into prosecution duties and teaching duties. On pp 6–8 of the statement, there is a detailed account of the arrest of the respondent’s partner, Mr Gorrell, over an alleged incident at Nowra Kmart on 16 October 2011. On p 7 the respondent said:
“I felt confused, upset and angry at the Police for charging him without investigating the matter properly. I took the rest of the week off on Annual Leave and returned to work at Goulburn the next week. I completed my time at Goulburn on 25th November 2011.
I returned to Wollongong Police Prosecuters [sic] and completed the rest of the year there until the Court closed for the Christmas holidays.
During December I had the inquest for the women’s cliff death at the Coroners Court at Wollongong and gave evidence. This once again triggered memories of the incident and flashbacks started again.
I returned to work after the Christmas holidays on the 9th January 2012 and continued normal duties at Nowra Court until 24th January 2012. On the 23rd January 2012, I was contacted by Sergeant Wunderlich he told me that the brief handling manager Deane Clarke at Nowra had be [sic] telling everyone about my private relationship. I felt that my workplace should separate to [sic] my personal life particularly that I was in Wollongong at the time and not Nowra and it was a betrayal of my ability to work in the workplace. I went to work the next day at Nowra and was in the middle of running a hearing and basically lost the plot, I couldn’t concentrate, wasn’t writing anything, couldn’t keep up with the evidence as it was being given. I contacted Senior Sergeant Ryan and informed him that I was having problems being at work today and that I’m going to go home. I then went back to the court and informed the court staff to inform the Magistrate of what’s going on and she said that she would adjourn the hearing and the remaining hearing set down for that day.
After that I went off work from the 25th January 2012 to 18th March 2012 on sick leave. The first two weeks I was off I was contacted by Senior Sergeant Ryan. On one occasion he contacted me and he told me that when speaking to the doctor make it clear that it’s not work related. He said, it’s personal not workers comp. I have record that he contacted me on three occasions.
On 16th February 2012 Senior Sergeant Ryan contacted me and he told me that he would make arrangements to have me on suitable duties without having to be in court. At that time he was trying to encourage me to come back to work and that I would be looked after by the Command. Inspector Reitano also contacted me to offer support about 4 or 5 times.
I returned to work on the 19th March 2012 at the Wollongong office. My duties were office duties and court list work.
When I returned to work there were complaints made about me which I thought were vexatious. These related to the allegation that I was taking drugs and as a result of this I was drug tested which disclosed a negative result. The second one was an allegation that I had been destroying personal computers hard drives that are alleged to have contained illicit images. I was interviewed by Senior Sergeant Graham and Inspector Reitano which disclosed nil evidence to support the allegation. I was also audited as to my access to the Police COPS system which disclosed that all access was of a lawful nature. The next complaint was that I went to Thailand whilst on sick leave which I admit that I did.”
The balance of the statement deals with what the respondent plainly believed were workplace difficulties with Senior Sergeant Ryan arising from what the respondent perceived as a lack of acceptance by the senior sergeant of the genuineness of his condition. It concludes with an account of the respondent being the subject of a further complaint against him, the detail of which had not come to his knowledge.
The respondent made a statement to his solicitors on 29 August 2016 which was attached to his Application. It occupies 22 pages. In paragraph [11(i–xxiii)] – which extends over 17 pages – he gave a detailed account of events and incidents in the course of his work as a general duties police officer and then as a prosecutor (mentioning also his period of secondment as a teacher) and their effect upon his health, stressing flashbacks and what could be described, perhaps with understatement from the perspective of the respondent, as a poor relationship with Senior Sergeant Ryan in particular. Paragraph [11(xviii)] recounts an increase of symptoms “in or around mid-2011” involving “lack of sleep, nightmares, flashbacks and heightened anxiety.” That sub-paragraph continues:
“… I considered resigning and requested a transfer to Goulburn Police Academy for a break … in August 2011 I was sent for a three month secondment.”

Unlike the statement to the investigator on 9 October 2012, this statement makes no mention of the charge against the respondent’s partner and his taking a week off work on that account before returning to the Academy and finishing up there on 25 November 2011. This statement goes on in the next succeeding sub-paragraph (xix) to refer only to the completion of his time at the Academy on 25 November and return to the Wollongong Prosecutor’s office and the involvement he had at an inquest into the death of a women at Werri Beach which was said to trigger “… more frequent flashbacks and nightmares, which resulted in further loss of sleep and aggression. I was becoming the angry person I was before I went to Goulburn Police College.” The absence of any mention of the charge against the respondent’s partner is relied upon by the appellant.
After the service of the appellant’s Reply with the statement of 9 October 2012 making detailed reference to his partner having been charged, the respondent made another statement which was admitted as a “late document” by the Arbitrator. It is dated 11 November 2016 and deals with the material that was served with the appellant’s Reply generally. It occupies six pages. In paragraph [6] the respondent repeats what he said in the October 2012 statement, namely that he took annual leave on 30 and 31 July 2012 to attend the court hearing of the charge against Mr Gorrell, and went on to say:
“… In relation to these charges, I was initially angry, shocked and upset. I was concerned about my ex-partner and the affect these charges would have on him. As the reality of the situation settled, and more information was known, I noticed my ex-partner start to calm down as the initial shock wore off. He continued with going to work every day, regular activities and seemed to be coping well. The first week or two was difficult, however the overall effect of the charges upon me was minimal.”
In paragraphs [8]–[14] of this statement, the respondent deals with the several charges brought against him in April 2013 and how they were dealt with, ending what were in effect outcomes favourable to him. This passage of this statement concludes with paragraph [14], as follows:
“14My symptoms predated any criminal charges made against me, criminal charges against my ex-partner or internal complaints or warnings. The first alleged date of my criminal conduct was in October 2012. This was after I had been diagnosed with PTSD and Major Depression. It was also after I had lodged my workers compensation injury with NSW Police Force and EML. The allegations that gave rise to an investigation were never proven.”
So far as the concluding sentence in paragraph [14] of this statement is concerned, it may be noted that saying that allegations are not proven is not the same thing as demonstrating that the fact of their existence, involving their being raised and taken to a conclusion, had no causal significance of any relevant kind. They are events in the respondent’s life relied upon by the respondent as undermining his case in that way.
The balance of this statement, comprising four pages, is devoted to answering the appellant’s Investigator’s Report of Lee Kelly dated 19 August 2015, the evidence of
Dr Roberts, psychiatrist, and the statements of Senior Sergeant Ryan and Inspector Reitano to which brief reference has been made above.
Moving to those statements, that of Senior Sergeant Ryan that was made on 3 October 2012. It extends over five pages and I think need only be summarised. It is sufficient to say that it confirms that there were complaints by other police officers about the respondent, in his role as a prosecutor, but suggests that this was not something of any real moment. It confirms that the respondent was upset when his partner was charged in November 2011 but suggests that the respondent downplayed the extent of the upset. It confirms that when the respondent returned from the Academy to prosecuting duties, his relationship with his male partner and, by implication, the fact of the charge against his male partner, became the subject of gossip at work. This was something regarded, apparently, as inevitable by the Sergeant and accepted as such by the respondent after talking to him.
A critical part of Sergeant Ryan’s statement is the penultimate paragraph on the second page. It is there squarely asserted that on 29 November 2011 the respondent contacted him and said he wanted to take sick leave, initially mentioning an infection but going on to say that he was suffering from stress and anxiety. This was put as being related to the criminal proceedings against his partner and expressly not to his work. Then the statement says that according to the roster records the respondent returned to work on 30 November, which would suggest that he had one or two days off work. (This brief period off work is probably consistent with the first paragraph from the respondent’s statement of 9 October 2012 extracted in paragraph [17] above, allowing for some differences of recollection and that records may not have been available to the respondent.)
The statement goes on to deal with the respondent’s absence from work from 25 January 2012 to 16 March 2012, again upon the basis that it was the consequence of psychological difficulties associated with his partner’s criminal case.
The statement also deals with the complaints against the respondent, his reaction to them, and the cessation of contact between the two men on 9 August 2012, shortly after Senior Sergeant Ryan’s return to work on 6 August 2012 after six weeks’ leave. What I think it is fair to say one can take from his written evidence in this statement is that his firm impression was that the respondent at no time did anything to suggest or imply that he had work-related psychological problems, and that relations between the two at work were business like, with no acknowledgment from Senior Sergeant Ryan that he was sceptical of any presentation on the part of the respondent or made life difficult for the respondent. However, it is fair to say that neither Senior Sergeant Ryan nor Inspector Reitano provided evidence specifically dealing with the respondent’s later evidence about his interaction with them, particularly Senior Sergeant Ryan. The respondent’s later evidence was not in existence when they provided their statements which were in evidence.
Inspector Reitano’s statement is dated 12 October 2012 and extends to seven pages. Once more I shall comment upon it in summary fashion only. It begins, relevantly, in paragraph [7], where it is recorded that on 11 November 2011 he spoke to the respondent supportively about the prosecution of the respondent’s partner. In paragraph [8] it is recorded that on 17 November 2011 he and Senior Sergeant John Graham spoke to the respondent and that “… he appeared to be coping reasonably well with the allegation against Mr Gorrell.”
Paragraph [9] deals with the respondent’s absence from work on 29–30 November 2011. Paragraph [10], speaking of the respondent’s return to work after the Christmas break on 9 January 2012, is as follows:
“… Shortly after returning to duty [the respondent] spoke with Senior Sergeant Ryan and a decision was made to deploy him to Wollongong Local Court only. [The respondent] raised issues regarding his ability to be able to continue to work at Nowra due to Gorrell being charged and on remand to that court. The decision was also made to avoid any perceived conflicts of interest that may have arisen between [the respondent] and his duties as a result of Gorrell being on remand to the Nowra Local Court.”
This may be thought to be in conflict with the suggestion that the respondent was kept at Wollongong because of psychological problems, but the two propositions are not explored or elaborated in the evidence and it is not possible to remark further on this possibility in my opinion.
Paragraph [12] of the Inspector’s statement is important and is as follows:
“12.On 21 February 2012 I conducted a welfare check on [the respondent] during that conversation we discussed his medical condition and the treatment he was receiving. It was my understanding from that conversation that [the respondent’s] medical condition was not work related and that he was not seeking to claim workers compensation benefits for his condition. Rather, the symptoms directly arose from the pressure he felt due to the arrest and charging of Mr Bradley Gorrell. A welfare contact form was submitted.”
This statement goes on to deal with subsequent events which are to some extent common ground, including the respondent’s unauthorised trip to Thailand, his attendance at court for the case against his partner, and complaints against him.
Then the concluding passage of the statement, in paragraphs [26]–[33], deals with the respondent’s going off work in August 2012 and communicating with, at least, the Inspector and Sergeant Wunderlich, and, on the one hand speaking of his absenting himself from work until the problems being experienced by his partner were resolved, and on the other hand speaking of the commencement of a claim for workers compensation benefits. By 14 August 2012, a WorkCover medical certificate had come into existence: paragraph [30]. On the Inspector’s reading of it, when he saw it on 15 August 2012 it gave depression, PTSD as the diagnosis of injury but did not say how it came about. (It may be interpolated here that that is by no means an unusual state of affairs. Experience teaches one that certificates which can be seen to be “WorkCover Certificates” are often regarded by their medical authors as by necessary implication conveying the idea of workplace causation.)
Paragraphs [32] and [33] of the Inspector’s statement are worthy of quotation in full. They are as follows:
“32.I later [this is 15 August 2012] received notification of the injury having been reported by [the respondent] to the injury management hotline, however the narrative of the P902 indicated that [the respondent] did not wish to disclose how the injury occurred. I completed the P901 investigation based on the facts known to me at that time.
33.At no time has [the respondent] disclosed to me any work related incidents that could have contributed to his depression or PTSD condition. It appears to me that the primary stressor that has contributed to his illness is the arrest and charging of Mr Bradley Gorrell and surrounding circumstances. Another important stressor would appear to be the notification by Senior Sergeant Graham on 9 August 2012 that a complaint had been made against [the respondent].”
Also in the appellant’s case before the Arbitrator, in addition to the two statements just referred to, the medical evidence of Dr Roberts, other medical evidence, the reports of the investigators and other documents, were the NSW Police Medical Officer Referral Form completed on 26 March 2012 by Inspector Reitano and a memorandum from the Senior Police Medical Officer, Dr Kirby, dated 5 July 2012.
The former document, the Referral Form, contains the following:
”Recent sick leave history if appropriate:
Reported off duty on sick report on 30/1/12 re personal issues. Resumed duty on 19/3/12.
For work-related injuries illnesses has a rehabilitation officer been involved? (This is usually appropriate) If so, who?
N/A
Current medical certification:
Fit for duties – See Dr’s Certificate.
Date of Injury or illness:
30/1/12
Date of Return to Work:
19/3/12
Reason for Referral?
Concern re fitness for full duties.
Brief Background (Attach documents if desired):
S/Cst Hahns partner was charged with criminal offences late in 2011. S/Cst Hahn has recently split with his partner and reported off duty due to stress arising from same.
What is the urgency level? (tick) □ Critical (same or next day)
þUrgent (1 week)
□ Routine
What outcome are you looking for from this referral?
Advice as to S/Const Hahns fitness to perform in court prosecuting duties. Medical Certificate provides no detail other than fit for work.”
The Memorandum from Dr Kirby contains the following:
“Seen today he had a stable appropriate presentation with suitable treatments and supports.
He should have several court visits, to include the court in question, over the next 2 weeks.
Psychological support should continue.
If he has a stable and satisfactory mental state while in the court then he can return to his usual court duties.
We will need to see him in 4- weeks to reassess him in respect to FOD and appointment access.”
In the respondent’s case before the Arbitrator the evidence of Dr Selwyn Smith, a psychiatrist who treated him, was important and was accepted by the Arbitrator. He first saw the respondent on 17 July 2013 at the referral of Dr Rossman, and reported to her the following day. That report contains the following:
“Towards the end of 2011 [the respondent] reported that he was experiencing psychological symptomatologies related to being exposed to a number of distressing and traumatic events incurred in his work as a police officer. He was particularly troubled by attending suicides and fatal motor vehicle accidents. As a result he requested time off and took sick leave. When he returned toward the latter part of 2011 he requested to transfer to Goulburn Academy in a teaching role. He had, prior to going to Goulburn, engaged in a prosecuting role. He returned to work but after a period of seven weeks having improved. He however experienced significant pressure at work and was then placed on light duties. To complicate his matters his partner had been charged with criminal offences. These were subsequently dismissed.
Prior to going back to work [the respondent] was assessed by the police psychologist who felt that he was not fit to return to work and as a result he remained on office duties. He came under considerable bullying and harassment by his superior who did not accept that he was unwell. [The respondent] reported emotionally decompensating and against that background a hurt on duty claim was submitted and was supported in August 2012. He reported that he was diagnosed with Post-Traumatic Stress Disorder and a Major Depressive Disorder.
[The respondent] stated that he returned to work towards the end of last year and requested to be transferred to Sutherland undertaking administrative duties. He was coping up until April 2013 when he was charged with indecent assault, accessing pornography and break and enter offences. He regards these offences as frivolous and precipitated by his former partner. He is being represented in this regard. He has been suspended with pay.”
Dr Smith’s opinion expressed in that report was that the respondent displayed “… diagnostic criteria for a chronic Post Traumatic Stress Disorder in association with a Major Depressive Disorder.” There was no express view offered as to causation.
Dr Smith provided a lengthy report of a substantially medicolegal nature direct to the appellant’s insurer on 4 November 2013. It appears that a report had been sought from him having regard to the content of the report of Dr Roberts of 24 September 2013, and also to seek answers to specific questions. Dr Smith dealt with the report of Dr Roberts and answered the questions, elaborating as he did so, on the history and opinion in his earlier report and providing support for the respondent’s claim. He noted that Dr Roberts in his report of 24 September 2013 offered considerable support for the basis of the respondent’s claim, and said in the paragraph commencing at the foot of p 2 of his report:
“It is my opinion that prior to any charges being laid [the respondent] had clear and convincing symptomatologies of a Post-Traumatic Stress Disorder and a comorbid Major Depressive Disorder. It is my opinion that Dr Roberts has downplayed the significance of [the respondent’s] exposure to distressing and traumatic events incurred at his place of work. His symptomatologies were prevalent prior to any charges being laid. They had also been accurately diagnosed by others. He had an accepted WorkCover claim and was being treated for his psychiatric condition. In my opinion Dr Roberts has not accurately reflected the circumstances related to the development of his psychiatric disorder. Certainly the current charges and suspension, whilst unpleasant, have not been the major cause of his current condition. I would accept that they have aggravated his symptomatologies.”
In answering the questions raised in the insurer’s letter Dr Smith went on in the same vein, affirming that to the extent that the opinion of Dr Roberts upon which he was commenting cast doubt upon or negated the respondent’s claim, he disagreed with it. He maintained that position in his subsequent reports, which include two lengthy and detailed reports to the respondent’s solicitors dated 28 May 2015 and 3 March 2016. Both of these reports involve a review of other medical reports and the latter of them involves a review of the Lee Kelly Investigation Report of 19 August 2015, Dr Roberts’ further report dated 12 October 2015 in which he more strongly rejected the basis of the respondent’s claim, and the s 74 notice served by the insurer. That notice sets out in detail the arguments contradicting the respondent’s claim which can be said to encompass medical and lay propositions.
I shall deal briefly below with the evidence of Dr Roberts for the appellant, but as to the other report evidence that was before the Arbitrator from medical and para-medical practitioners, I do not think it is necessary to deal with it in detail. The practitioners seen include general medical practitioners, psychiatrists, and psychologists, both in private practice and internal police employees. Upon my review of the material that was before the Arbitrator, the only medical reports which are not listed as having been reviewed by Dr Smith come from Dr Rossman, the respondent’s general practitioner, and Ms Veljaca, a psychologist from Shoalhaven Clinical Psychology. The report of Dr Rossman is dated 13 March 2014 and Ms Veljaca’s reports are dated 23 April 2014 and 17 November 2015. It is not surprising that these reports are not listed and discussed by Dr Smith: Dr Rossman referred the respondent to Dr Smith, and he referred him to Ms Veljaca. He must have had a referral letter from the former and reports back from the latter and must have been aware of the substance of their views. In any event, I regard the brief report of Dr Rossman and the lengthier reports of Ms Veljaca as providing support to the respondent’s claim.
It appears from the report of Dr Rossman dated 13 March 2014 that before he was referred to Dr Smith the respondent was referred to Dr Davies, a Wollongong psychiatrist, but neither party put into evidence a report from him which must have been available on the equivalent of subpoena from Dr Rossman or from Dr Davies himself. As I read the submissions put to the learned Arbitrator and to me, no adverse inference was sought against the respondent by reason of the absence of evidence from Dr Davies, and my own view is that given the large body of medical evidence that was available it would be inappropriate to take any sort of Jones v Dunkel[1] approach to the matter.
[1] (1959) 101 CLR 298.
So far as the evidence of Dr Roberts in his two medicolegal reports is concerned, it is plain enough that in his second report he expresses an opinion which, if accepted, would be fatal to the respondent’s claim. It is equally plain that he does so by reference to material furnished to him for his consideration after he wrote his first report, much of it a lay anecdotal kind and itself very much open to interpretation. I think it is fair to say that on the strength of his evaluation of that material he recants from so much of his earlier report as accepted that the respondent may have developed genuine psychological problems as a result of his employment as a police officer; casts doubt on the truthfulness or at least reliability of the respondent; and comes to the view that the real cause of any difficulties he is actually suffering lies outside his employment. It is to be seen in the events involving his partner and the criminal proceedings against him, and involving himself personally including the criminal proceedings against him.

In other words the evidence of Dr Roberts, in its settled form following his second report, provides a positive basis for rejecting the respondent’s claim. The appellant relies upon it in that way according to its terms. A secondary feature of the latter report of Dr Roberts, which is reflective of an alternative argument on the part of the appellant, is that one cannot read the histories in all the available written reports of the medical and para-medical practitioners without seeing that there is no consistency or uniformity as to what events happening when caused the respondent’s psychological problems if any. The same conclusion should be arrived at when the statements of the lay witnesses and other lay material from records and Facebook etc are brought to account. Accordingly, there is no proper factual basis for the supportive views that are to be extracted from the medical and para-medical reports relied upon by the respondent which undoubtedly express opinions in his favour.
This summary review of the evidence before the Arbitrator and brief comment upon its significance according to the competing arguments advanced before him brings me to his reasons for decision.
I think it is appropriate to say at the outset that someone placed as I am could not read the substantial body of evidence that was before the learned Arbitrator without appreciating that he was faced with a case in which there was force in the competing arguments and the disposition of the case – could not have been easy. That is no doubt why his reasons set out verbatim and at length much of the oral submissions made to him by counsel for the parties. It is apparent that he was well seized of the opposing arguments which made detailed reference to the detailed evidence. However, it appears to me that the gravamen of his decision can be extracted from his reasons as follows:
(a)in paragraph [50], commencing at the foot of p 23, the Arbitrator accepted submissions from the respondent’s counsel and said that he was satisfied that there was strong support for a finding that the respondent was suffering the effects of PTSD owing to exposure to traumatic events whilst performing general duties, and that this was a motivating factor in his transfer to prosecutions where he found it increasingly difficult to cope and his worsening condition was a motivating factor in his transfer to the Academy.
(b)in paragraph [51], p 24 the Arbitrator accepted further submissions from the respondent’s counsel that additional workplace stressors “… in the period 2010 through 9 August 2012 …” may have contributed towards an aggravation or exacerbation of the respondent’s psychological injury condition, being factors which arose out of or in the course of his employment and not externally to it.
(c)paragraph [53], p 24 seems important. The Arbitrator expressed the view that the respondent’s written statements were “… overall consistent with the treating medical records, recorded medical histories and expert medical opinion, and that apart from the opinion of Dr Roberts, in his latest report, the medical evidence admitted into the proceedings clearly supports the finding [the respondent] suffered the effect of a work related psychological injury in the nature of PTSD with comorbid depression resulting in a total incapacity for work.” He went on in this paragraph to prefer the evidence of Dr Smith and Dr Selvatratan and the earlier opinion of Dr Roberts (that is, that expressed in his first report) to Dr Roberts’ latest opinion (that is, that expressed in his subsequent report). He said:
“Dr Selwyn Smith [the respondent’s] treating psychiatrist had available a comprehensive history concerning the stressors to which the respondent was exposed including those arising out of or in the course of the respondent’s employment and the external events. I am satisfied Dr Selwyn Smith provided comprehensive and well-reasoned opinion in support of the finding the [respondent] suffered from a work related psychological injury condition and that such opinion is consistent with the opinion provided by Dr Selvatratan, who saw [the respondent] on behalf of [the appellant] and also had regard to circumstances involving the charging of Mr Gorrell … I am satisfied the [respondent] was suffering the effects of PTSD resulting from his exposure to traumatic events during the period 2005 through 2008 and his psychological condition was also aggravated as a result of his requirement to attend and give evidence in November 2001 at the Coroner’s Inquest and other work related factors.”[2]
(d)the Arbitrator’s reasons go on in the following paragraphs to expand and reinforce these expressions of opinion and findings of fact.
(e)in relation to the passage of the Arbitrator’s reasons constituted by paragraphs [50]–[59], I think these things must be apparent. First, the description in the opening line of paragraph [55] of the respondent’s statement evidence as “unchallenged” must be understood as “unchallenged by cross-examination, leave in respect of which was not sought”. It was made crystal clear by counsel for the appellant that the credibility of the respondent was challenged, and that the appellant was content to support the challenge by reference to written evidence rather than seek leave to cross-examine. The Arbitrator’s reasons show that he did not accept that there was enough force in this tactical approach to impugn the respondent’s evidence in any material sense. Secondly, later comments in that paragraph of his reasons and in particular what is said in paragraph [57] shows that the Arbitrator accepted by reference to the evidence an important plank in the respondent’s case, namely that he was already adversely affected by a psychological condition in a way which impaired his capacity to carry on in a full range of general duties and later in prosecution work before the criminal charges against his former partner and action against him.
(f)in particular in paragraph [59] the Arbitrator said he was satisfied that work related stressors would have constituted an aggravation of the respondent’s existing problems, a view squarely supported by Dr Smith in his abovementioned report of 4 November 2013 in the concluding part of the extract from it set out in paragraph [36] hereof. This I think clearly spells out a finding that there were more than one causal factors in the respondent’s overall condition at the time the Arbitrator decided the case. And earlier in his reasons in paragraph [42] he showed by setting out a passage in the submissions of counsel for the respondent that he was cognisant of the authorities, in particular Roser v State of NSW[3] and Calman v Commissioner of Police,[4] to which decisions later reference will be necessary.
(g)paragraphs [63]–[68] of the Arbitrator’s reasons, headed “Summary”, restate his findings and decision, but I think are just that, a summary thereof. The necessary detail of his decision, coming after the abovementioned lengthy recounting of the submissions, is to be found in paragraphs [50]–[59].
[2] The Amended Certificate of Determination, Hahn v NSW Police Force [2017] NSWWCC 93, at [53].
[3] [2016] NSWWCC 267 (Roser).
[4] (1999) 167 ALR 91 (Calman).

SUBMISSIONS

Both parties put in detailed written submissions upon this appeal, the appellant’s in chief occupying 22 pages, the respondent’s 18, and the appellant’s in reply 5. Inevitably, in an essentially factual case like this concerned with whatever problem the respondent has and perhaps more particularly its causation, the submissions covered much of the same ground in the same way as the submission put to the learned Arbitrator.
However, so far as the appellant’s case upon this appeal is concerned, the fact that the case is fairly to be described as fact-laden has generated two grounds of appeal which take one beyond a strict re-examination of the evidence as to its capacity to support the findings and decision. These are Ground 1 which puts that the Arbitrator was guilty of error of law in denying procedural fairness by failing to provide adequate reasons, that is, reasons for finding injury suffered by the respondent pursuant to s 4 and finding that s 9A was satisfied. The same error is put as alternatively constituting jurisdictional error. Ground 2 is that the Arbitrator was guilty of error in denying the appellant procedural fairness in failing to give adequate reasons as to why he accepted Dr Smith and Dr Selevstratan over Dr Roberts. The third ground of appeal is that the Arbitrator erred in finding that the respondent made out causation pursuant to s 9A. Viewed in isolation, as it must be viewed, this ground calls for an evaluation of the evidence and whether it supports the Arbitrator’s findings. However, as I shall shortly indicate, I think that it is very realistic in this particular case to say that whether there was sufficient support in the evidence for the findings made by the Arbitrator for practical purposes disposes of all three grounds.
This is because the appellant’s submissions as to the inadequacy of the Arbitrator’s reasons, which are the essential thread of Grounds 1 and 2, to my mind get down to the proposition that the reasons simply cannot be good enough because the evidence was simply not good enough. The submissions in paragraphs [48]–[78] in support of the first ground of appeal set out what are said to be compelling matters of evidence which point to a decision in the appellant’s favour. These submissions endeavour to show that the Arbitrator’s failure to see them in that light is unexplained in the sense of the authorities about the judicial obligation to give reasons which are footnoted to paragraph [45] of the submissions.
Likewise the briefer submissions in paragraphs [79]–[84] proceed upon the same type of analysis.
Ground 3 of the appeal, and the submissions in support of it in paragraphs [85]–[97], undeniably propound an argument to the effect the factual evidence upon which the doctors had to base themselves, when properly weighed, necessarily spelt the rejection of the respondent as a credible witness and thus the rejection of the medical evidence favourable to him which depended on his evidence. This left the views expressed by Dr Roberts in his second report as the only acceptable ones.
It should be noted that in relation to Ground 3, the appellant places reliance on what is said to be the authority of a decided case, namely, Roser. It is submitted (paragraph [85]) that the present case raises issues identical with those in Roser. It is also submitted (paragraph [86]) that the Arbitrator did not adequately say why it should not be followed, and if it was not to be followed, why, and how it was to be distinguished. It will be necessary to deal discretely with these submissions and I shall do so below. See also paragraph [48] above as to this.
The burden of the respondent’s submissions in relation to each of the grounds of appeal was that there was no error demonstrated because the evidence amply supported the decision reached by the Arbitrator, and his reasons sufficiently showed how he arrived at it. That included showing that he did not regard Roser as determinative but rather was guided by other authority in his approach to the determination of causation.
The appellant’s submissions in reply return to emphasise matters of fact said to have been established by the evidence so as to be conclusive in favour of the proposition that only Dr Roberts could be regarded as expressing an acceptable opinion. They also put that the respondent had not put a cogent argument to the contrary: see [24]–[29]. Earlier in paragraph [23] it was put that the respondent had not dealt with the appellant’s argument in chief that he had not discharged his onus, or with the implications of the decision in Roser.

Disposition

In the determination of this appeal, squarely in relation to the determination of Ground 3, I direct myself in accordance with the decision of Roche DP in Raulston v Toll Pty Limited.[5] The onus in the appeal lies upon the appellant to show that the findings upon which the learned Arbitrator’s decision depends were not open to him. That is, that they were not fairly supported by the evidence, and/or the evidence, properly evaluated, demonstrate a contrary view which ousted the view taken by the Arbitrator. That this is the correct approach I think emerges in particular from paragraph [19] of Raulston where Roche DP gave effect to High Court authority, namely Whiteley Muir and Zwanenberg Limited v Kerr.[6] See in that regard Barwick CJ at 506. Thirty years after Whiteley Muir, the High Court affirmed that approach: Zuvela v Cosmarnan Concrete Pty Ltd.[7]
[5] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[6] (1996) 39 ALJR 505 (Whitely Muir).
[7] [1996] HCA 30; 140 ALR 227; 71 ALJR 29.
Further in relation to Ground 3, as mentioned above the appellant’s reliance on Roser requires separate consideration. With all respect, I think that reliance is misplaced. Roser was a factual decision, not a legal one. Put another way, it expounded a conclusion of fact. It did not, and did not purport to, state or restate by way of alteration or modification any principle of law. Whilst like cases should be decided alike, only legal principles have binding precedential value. In Roser, Arbitrator Sweeney stated the legal principles as to causation which were applicable and, in obedience of them but within the field of fact which they left open to him, reached a factual decision. I have already stressed that this case on causation is a factual one, and the evidence here is not the same as the evidence in Roser. Even if it were, that would not compel a decision in the appellant’s favour. One must look at the evidence in this case and see what it permits as the proper factual conclusion. If any guidance by way of authority as to the principles of causation was required or even important in this case, I think it is to be found in Calman, and I think the whole tenor of the learned Arbitrator’s reasons is that he accepted that the respondent’s condition had multiple causes, one of which was an aggravation from non-work related factors, but that the overall condition would not have existed in its incapacitating totality without the contribution of work related stressors. The passage from Dr Smith’s evidence set out in [48(c)] hereof provides strong support for the Arbitrator’s conclusion. The decision of the High Court in Calman concerns the same sphere of personal injury or medical condition as this case, being concerned with a nervous or psychological condition. For that reason no doubt it was cited to the learned Arbitrator. But to my mind it is no more than a reflection of the general notion that injury may have two or more causes, one of them work related and the other or others not, but if they combine to cause the relevant event the presence of the work related cause may make it compensable: see the earlier decision of the High Court in Conkey and Sons Ltd v Miller.[8]
[8] (1977)16 ALR 479; 51 ALJR 583.
Specifically so far as Ground 3 is concerned, just as there was room upon consideration of the evidence before the Arbitrator to say that there was force in the appellant’s argument and force in the respondent’s argument, so I accept that the same state of affairs prevails upon this appeal. That said, the question is whether the learned Arbitrator’s analysis of the evidence and its implication was so flawed as to not be fairly open to him. Having read and reread the Arbitrator’s reasons I cannot see that that is demonstrated. Like the Arbitrator, I am impressed with the detailed medicolegal reports of Dr Smith which review the other reports and demonstrate what I think is a good grasp of the totality of the history. Dr Smith has the additional advantage of having seen and treated the respondent, and his evidence is either broadly or outright supported by other medical and para-medical witnesses.
The argument that Dr Smith did not have a proper basis upon which to express his views cannot be accepted for additional reasons. First, to my mind the appellant endeavours to impose too exacting a standard of comparison between the evidence and the history relied upon by Dr Smith. Quite apart from the fact that I think the detail set out in his final two reports is satisfactory by way of history, the decision of the High Court in Paric v John Holland (Constructions) Pty Ltd,[9] reinforces that view. In that case the High Court made it clear that exact correspondence between the history in a medical report and what is proved in evidence is not necessary for the validity of the medical opinion. All that is required both as a matter of principle and common sense is that there be real correspondence between the two. Put perhaps more bluntly, near enough is good enough, and the histories in Dr Smith’s reports amply pass that test. Secondly, the appellant’s criticisms of the reasoning of Dr Smith set out in his reports also puts the standard too high. It is a criticism which depends squarely upon the judgment of Heydon J, as his Honour then was, in Makita (Australia) Pty Ltd v Sprowles,[10] but which overlooks the line of authority which has come into existence since that decision and which starts with Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd.[11] This line of authority makes it clear that Heydon J in Makita should be regarded as having enunciated a counsel of perfection and that doctors, in expressing an opinion, rely, on more than histories, the results of investigations and their training and expertise. Often they use their experience and medical intuition as well, and when they arrive at an opinion it cannot always be elaborated and explained at length (see also Dasreef Pty Ltd v Hawchar[12]). This common sense approach also leads to the view that Dr Smith’s opinion is a satisfactory one and in any event to my mind it is expressed as much more than an ipse dixit.
[9] [1985] HCA 58; 62 ALR 85; 59 ALJR 844.
[10] [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 (Makita).
[11] [2002] FCAFC 157; 234 FCR 549.
[12] [2011] 243 CLR 538, at 604.
These comments about the content of Dr Smith’s reports are also relevant to the appellant’s criticisms of the Arbitrator’s reasons for the purposes of Grounds 1 and 2 of the appeal. The written submissions of both parties collect and cite the body of authority which has come into existence in relation to judicial reasons. To my mind the essential propositions are uncontroversial and the important thing is that the reasons should give assistance to any appellate court called upon to consider them by indicating how the case was decided, and should explain to the parties, especially the losing party, how the result was arrived at and why the losing party lost. If they meet that standard, they need not be lengthy, elaborate or exhaustive and they need not deal with every feature of the case.
In my opinion, the reasons given by the learned Arbitrator amply show that he determined the case by preferring the evidence of Dr Smith in particular, but also the evidence of other expert witnesses which supported the respondent, and by rejecting the evidence of Dr Roberts in his second report. The passages from his reasons that I have referred to above demonstrate that. He also in those passages gave a more than sufficient indication that he was of the view that Dr Smith had a proper basis for the expression of his opinion by reference to the surrounding facts and circumstances established by the evidence. I think that anyone reading the Arbitrator’s reasons in a dispassionate fashion would have no difficulty in so understanding them, and that a trained lawyer used to considering reasons for judgment would readily accept that the learned Arbitrator decided the case in a conventional fashion. He was faced with competing medical evidence, and arguments in support of the acceptability of that competing medical evidence which centred upon whether Dr Roberts on the one hand had the only proper history upon which to express an opinion or whether on the other Dr Smith and the other expert witnesses had a proper history. I think it is clear enough that the Arbitrator, in the reasons he gave, concluded that the answer to both those questions favoured the respondent. I also think it is clear enough that the Arbitrator conformed to the essential requirements of giving judicial reasons.[13]
[13] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, at 443–444; Mifsud v Campbell (1991) 21 NSWLR 725, at 728 (Samuels JA (Clarke JA and Hope AJA agreeing)); Roncevich v Repatriation Commission [2005] HCA 40, at [64] (Kirby J); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, at 280 (McHugh JA).

The foregoing discussion, in my view, leads to the conclusion that the learned Arbitrator did not fall into error in concluding that the respondent’s incapacity and need for medical treatment etc were causally related to stressors in the course of his employment with the appellant and that both s 4 and s 9A were satisfied. In this regard an absence of additional evidence from Inspector Reitano and Senior Sergeant Ryan, commenting on the totality of the respondent’s evidence as to his interactions with them was not to my mind important but simply constituted one other factor in favour of the respondent’s evidence.
In my opinion, the appellant’s three grounds of appeal have not been made out and the appeal should be dismissed.

DECISION

The Amended Certificate of Determination dated 10 May 2017 is confirmed.

Larry King SC

Acting Deputy President

29 November 2017