Smith v Chief Executive, Attorney-General's Department
[2024] SASCA 107
•29 August 2024
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
SMITH v CHIEF EXECUTIVE, ATTORNEY-GENERAL’S DEPARTMENT
[2024] SASCA 107
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
29 August 2024
WORKERS’ COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - QUESTION OF LAW
Application for leave to appeal against a decision of the Full Bench of the South Australian Employment Tribunal.
The applicant was a police officer who had sought an application for payment of income compensation and medical expenses on the basis that she had suffered from an eligible injury under the Police Officers Award. The applicant’s case was that her injury occurred as a direct and immediate result of conduct that is, or appeared to be, a criminal offence. The South Australian Employment Court held at first instance that the applicant was entitled to compensation.
A majority of the Full Bench allowed the respondent’s appeal and set aside the orders. The applicant applied to this Court for leave to appeal, raising the following questions of law:
1.On the facts as found and undisputed, was the applicant’s psychiatric injury only capable of being characterised as having occurred as ‘a direct and immediate result’ of the murder within the meaning of cl S4.31.2 of the Police Officers Award? (Ground 1)
2.Whether it was open to construe the phrase ‘a direct and immediate result’ in cl S4.31.2 of the Police Officers Award as ‘indicating that the injured police officer must be sufficiently proximate to the conduct which causes the injury at the time the injury is sustained’? (Grounds 2a-c)
3.Whether the reasons given by the majority of the Full Bench for their decision were inadequate as a matter of law or demonstrate a failure to consider the case in accordance with the required legal principles? (Ground 2d)
Held (by the Court), granting leave to appeal on Grounds 1 and 2d, refusing leave to appeal on Grounds 2a-c and dismissing the appeal:
1.On the question raised by Ground 1, the reasoning of the majority was not precluded by the words of cl S4.31.2.
2.The question raised by Grounds 2a-c does not arise, as the Full Bench did not construe cl s4.31.2 in the manner submitted by the applicant.
3.On the question raised by Ground 2d, the Full Bench did not fail to give adequate reasons or fail to address the applicant’s case.
Police Officers Award cll S4.30, S4.31, S4.32; Return to Work Act 2014 (SA); SA Ambulance Service Award cl S6.35; South Australian Employment Tribunal Act 2014 (SA) s 67(4); Southern State Superannuation Regulations 2009 (SA) reg 38A(1), referred to.
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Chief Executive, Department of Premier and Cabinet, for Chief Executive, Department for Health and Wellbeing (SA Ambulance Service) v Kimber [2021] SAET 71; DL v The Queen (2018) 266 CLR 1; Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378; Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89; Kimber v Chief Executive, Department of Treasury and Finance [2021] SASCA 133; Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Limited [2005] NSWCA 66; Millman v South Australian Superannuation Board [2018] SADC 45; Pettitt v Dunkley [1971] 1 NSWLR 376; Public Service Board of NSW v Osmond (1986) 159 CLR 656; Qube Ports v Maritime Union of Australia [2018] FCAFC 72; Smith v South Australia Police, Department of Treasury and Finance [2023] SAET 52; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; State Government Insurance Commission v Sinfein Pty Ltd (1996) 15 WAR 434; Wainohu v New South Wales (2011) 243 CLR 181, considered.
SMITH v CHIEF EXECUTIVE, ATTORNEY-GENERAL’S DEPARTMENT
[2024] SASCA 107Court of Appeal – Civil: Livesey P, Bleby and David JJA
THE COURT: This is an application for permission to appeal on questions of law from a decision of the Full Bench of the South Australian Employment Tribunal. The questions of law arising concern the interpretation and application of cl S4.31.2 of the Police Officers Award (the ‘Award’). This clause falls within Sch 4 of the Award. Schedule 4 makes provision for weekly payments of income support and payment of medical expenses, beyond the limits that ordinarily apply under the Return to Work Act 2014 (SA) (the ‘RTWA’), where a police officer is injured in circumstances set out in the Schedule.
The underlying question is whether the applicant, who is a police officer, sustained an ‘eligible injury’ within the meaning of Sch 4. Clause S4.29 provides that an injury is not an eligible injury unless the injured officer is an eligible officer. It was not in dispute that the applicant is an eligible officer. Relevantly, cll S4.30 and S4.31 then provide:
Temporal connection to employment
S4.30 An eligible injury arises out of or in the course of the eligible officer:
S4.30.1 being on duty; or
S4.30.2 lawfully exercising the powers of a police officer; or
S4.30.3genuinely believing that they are exercising the powers of a police officer.
Causal connection to the nature of policing
S4.31 To be an eligible injury the injury must have:
S4.31.1resulted from conduct directed at the officer that is or appears to be a criminal offence; and / or
S4.31.2occurred as a direct and immediate result of conduct that is or appears to be a criminal offence;
S4.31.3occurred in other circumstances where the officer is placed in a dangerous situation (however psychiatric injuries are only eligible injuries pursuant to S4.31.3 if they are caused as a consequence of a specific incident or incidents).
The questions of law arising concern the interpretation and application of cl S4.31.2.
The undisputed facts and the decision at first instance
The circumstances giving rise to the application for an order that Ms Smith suffered from an eligible injury, and for consequent orders for payment of income compensation and medical expenses in accordance with the terms of Schedule 4, are not contentious. They are set out in the reasons of the Auxiliary Deputy President Magistrate (AUDPM) who heard the application at first instance. The Full Bench adopted them. We reproduce the relevant passages here:[1]
[1] Smith v South Australia Police, Department of Treasury and Finance [2023] SAET 52 at [5]-[14],[17].
Ms Smith has been employed by South Australia Police (SAPOL) since 2001. At the relevant times, she held the rank of Senior Constable and worked as a traffic officer in the Road Policing Section.
On 21 July 2009, Ms Smith was tasked with investigating a motor vehicle accident where the driver was suspected of being under the influence of alcohol or drugs.
Ms Smith attended the home of a young female, approximately 20 years of age, who was suspected of being the driver. As will be noted later, the female driver became the victim of a more serious offence (the victim). Ms Smith found the victim present with her parents and a brother. Ms Smith says she spoke with the victim’s parents and the victim before conveying the victim to the Queen Elizabeth Hospital for drug and alcohol testing.
During the victim’s admission, Ms Smith remained at the hospital with her for approximately three to four hours. Once she was cleared for discharge, Ms Smith telephoned the victim’s home and spoke with her mother to arrange for her to be picked up. A short time later, the victim’s parents arrived. Ms Smith had a conversation with them with respect to the next steps in the investigation process, depending on the results of the blood analysis taken from the victim. Ms Smith then returned to her work base and booked the blood sample into evidence before completing her shift and going home.
The following day, Ms Smith commenced work on a day shift. During the shift, she received a telephone call from a colleague, Scott Mitchell, in the Central Intelligence Branch. Mr Mitchell advised her that on returning home from the hospital, the victim had been brutally murdered by her father.
Ms Smith deposed that she ‘lost it’, was unable to stop crying and was very upset.
Mr Mitchell deposed that he had worked for SAPOL since 2001 and held the rank of Detective Brevet Sergeant. Mr Mitchell has known Ms Smith for 20 years and considered himself a friend as well as a colleague.
Mr Mitchell confirmed that on 22 July 2019, he was tasked with investigating the murder that had occurred the night before. As per standard protocol, he reviewed material to contact anyone who may be involved and noted Ms Smith had been involved with the victim the night before. As such, he contacted Ms Smith by telephone.
Further, Mr Mitchell deposed that on being told that the young woman had been murdered, Ms Smith sounded upset, so he decided to go to see her at the station in person. When Mr Mitchell arrived at the station where Ms Smith worked, Mr Mitchell recalled her crying. He was shocked to see Ms Smith so upset, because he had not seen that much emotion from her in relation to a case before.
Ms Smith said that she felt distressed and responsible for the victim’s murder. Ms Smith finished her shift early, following which she was rostered for four days off. She then returned to work on a Saturday but could not cope and took sick leave for the day and the following Sunday.
…
Ms Smith has returned to work. However, she is currently performing a role earning less than in her pre-injury role. Work Capacity Certificates indicate that while Ms Smith is fit for pre-injury hours, she is not fit to return to operational duties.
(Citations omitted)
The applicant’s case at first instance was that her injury occurred in circumstances described in cl S4.31.2, that is, as a direct and immediate result of conduct that is or appears to be a criminal offence. The AUDPM held that it did so and made further findings, concluding that the applicant was entitled to weekly payments of income support and payment of medical expenses as contemplated by the Schedule.
On the construction of cl S4.31.2, the AUDPM said:[2]
In my view the use of the word ‘direct’ is intended to exclude remote or tenuous causes and, noting that the drafters of the Award likely being of a practical bent of mind, means that as a matter of common sense, the injury can be said to be caused by the criminal offence.
Further, I find that the use of the word ‘immediate’ in the composite phrase ‘direct and immediate’ does not introduce a time-based component to the test of causation.
Rather, I consider it likely that the requirement for the injury to occur as a direct and ‘immediate’ result of conduct that is a criminal offence, was intended to emphasise the closeness of the causal connection required between the injury and the criminal offence in a proximate sense, as held in Millman.
[2] [2023] SAET 52 at [76]-[78].
This last statement was a reference to the decision of Tilmouth DCJ in Millman v South Australian Superannuation Board (‘Millman’).[3] That case concerned the interpretation of reg 38A(1) of the Southern State Superannuation Regulations 2009 (SA). This provided for entitlement to a police disability pension in the event of the officer being 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. For the entitlement to arise, it was necessary that:
(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.
[3] Millman v South Australian Superannuation Board [2018] SADC 45.
For present purposes, it suffices to observe that in Millman,[4] Tilmouth DCJ engaged in a close analysis of a number of instances of judicial treatment of the words ‘direct’ and ‘immediate’ when used in a causal sense[5] and held that:[6]
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.
[4] [2018] SADC 45.
[5] State Government Insurance Commission v Sinfein Pty Ltd (1996) 15 WAR 434; Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89; Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Limited [2005] NSWCA 66.
[6] [2018] SADC 45 at [44].
Applying that meaning to the phrase in cl S4.32.2 of the Award, the AUDPM held that the closeness of the causal connection between the murder of the victim and Ms Smith’s injury was sufficient to find that Ms Smith’s injury occurred as a direct and immediate result of a criminal offence.[7]
[7] [2023] SAET 52 at [80].
The appeal to the Full Bench
Ms Smith’s designated employer, the Chief Executive of the Attorney‑General’s Department (the respondent to the present appeal), appealed to the Full Bench of the Tribunal. Pursuant to s 67(3) of the South Australian Employment Tribunal Act 2014 (SA) (the ‘SAET Act’), that appeal was by way of rehearing. It was open for the Full Bench to draw inferences of fact from the evidence,[8] although the primary facts as related above were not in contest.
[8] SAET Act, s 67(4).
A majority of the Full Bench allowed the appeal, set aside the orders of the AUDPM and dismissed the application for additional compensation.[9] Each member of the Full Bench delivered separate reasons. The complaints on appeal to this Court focus on the reasons of Calligeros DPJ, which comprised the primary analysis for the appeal being allowed. Hannon AUJ agreed with those reasons and supplemented them with some further reasons of his own. As already noted, Rossi DPJ dissented.
[9] CE, AGD v Smith [2023] SAET 116 (Calligeros DPJ and Hannon AUJ, Rossi DPJ dissenting).
Calligeros DPJ noted the AUDPM’s acknowledgment of the principles of interpretation of an industrial award as set out in the Full Federal Court decision of Qube Ports v Maritime Union of Australia:[10]
There are well developed principles concerning the construction of industrial awards and agreements, which take account of the fact that they are commonly drafted by lay persons and lack the precision and clarity to be expected in commercial contracts.
The principles were reviewed recently by Tracey J in Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54 at [29]‑[41]. It is not necessary to repeat the principles in detail in these reasons. It is sufficient to say that the Court will seek to identify, in an objective way, the meaning intended by the parties to the agreement having regard to the language they have used and, in doing so, avoid a narrow or pedantic approach. In particular, the Court takes account of the circumstance that the drafters of the agreement were likely of a “practical bent of mind” and likely to have been concerned with expressing their intentions in ways understood in the context of the relevant industry and industrial relations environment. As with commercial contracts, the Court will prefer a construction which gives effect to the presumed purpose of the parties.
[10] Qube Ports v Maritime Union of Australia [2018] FCAFC 72 at [64]-[65] (White J, Mortimer and Bromwich JJ agreeing).
Calligeros DPJ held that the AUDPM had erred in construing the phrase ‘direct and immediate result’. In critiquing the AUDPM’s adoption of the analysis in Millman, he observed that there were a number of differences in the phrasing of the regulation and that of cl S4.31.2. He noted that reg 38A(1)(b)(ii) specified that the conduct must have occurred ‘in the course of the officer’s involvement in police operations directed at the investigation of criminal conduct’ and expressed the view that the phrase ‘in the course of’ denoted a temporal connection not found in cl S4.31. He also noted that unlike cl S4.31.3, reg 38A(1)(b)(iii) did not refer to a ‘dangerous situation’ and required the officer to be injured ‘as a direct and immediate result’ of conduct by a person the officer has apprehended or tried to apprehend for a criminal offence.
Calligeros DPJ noted that in Millman, Tilmouth DCJ had drawn on cases concerning insurance policies in equating the concept of being ‘directly caused’ with that of ‘proximate cause’.[11] He held that the construction exercise where an industrial award was concerned was different and required an analysis in accordance with the principles described in Qube Ports. He also observed that in WorkCover Corporation v Sherriff,[12] the Full Court had cautioned against using the expression ‘the real or proximate cause’ to paraphrase the statutory expression, ‘arising out of or in the course of employment’.[13]
[11] [2023] SAET 116 at [23]-[24], citing Millman v South Australian Superannuation Board [2018] SADC 45 at [38]; State Government Insurance Commission v Sinfein Pty Ltd (1996) 15 WAR 434; Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Limited [2005] NSWCA 66.
[12] WorkCover Corporation v Sherriff, unreported, 1 October 1996, judgment no. S5831 (Lander J).
[13] [2023] SAET 116 at [25].
For these reasons, Calligeros DPJ did not take the language of cl S4.31.2 to be referring to the proximate, real or effective cause of injury. However, he agreed with the AUDPM’s rejection of the respondent’s case that the word ‘immediate’ imported a strict temporal requirement.[14] In this regard he noted what he characterised as the separating out of temporal (cl S4.30) and causal (cl S4.31) elements in the Award. He also noted that the strict temporal requirement included in reg 38A(1)(b) of the regulations considered in Millman had no counterpart in cl S4.31.2.
[14] [2023] SAET 116 at [26].
Understandably, Calligeros DPJ focused a considerable part of his analysis on the consideration by this Court of comparable clauses in the SA Ambulance Service Award (the ‘SAAS Award’) in Kimber v Chief Executive, Department of Treasury and Finance (‘Kimber’).[15] Clause S6.35 of that Award provided for the necessary causal connection to ambulance work for an injury to be an ‘eligible injury’, with the same effect as cl S4.31 of the Award:
[15] Kimber v Chief Executive, Department of Treasury and Finance [2021] SASCA 133.
Causal connection to the nature of ambulance work
S6.35 To be an eligible injury the injury must have:
S6.35.1resulted from conduct directed at the officer that is or appears to be a criminal offence; and/or
S6.35.2occurred as a direct and immediate result of conduct that is or appears to be a criminal offence; and/or
S6.35.3occurred while the officer was on active duty and suffered an injury as a result of:
S6.35.3.1 the uncontrolled or unpredictable work environment; and
S6.35.3.2having to engage in activity(s) which were inherently unsafe; and/or
S6.35.4occurred in other circumstances where the officer is placed in a dangerous situation (however psychiatric injuries are only eligible injuries pursuant to S6.35.4 if they are caused as a consequence of a specific incident or incidents).
At issue in Kimber was the interpretation of cll S6.35.3 and S6.35.4. Clause S6.35.3 has no counterpart in the Award, although cl S6.35.4 is reflected in cl S4.31.3. Clause S6.35.2 is in the same terms as cl S4.31.2 of the Award.
In Kimber, this Court said of cl S6.35:[16]
Reading the clauses from a practical, industrial perspective in the context of the practice of paramedicine, on the other hand, suggests that the drafters focused first on the prospect of officers being placed directly in harm’s way by criminal conduct, and then being injured on account of criminal conduct not necessarily directed at them. While there is a textual redundancy inherent in the combination of these clauses, they together highlight an industrial purpose of providing heightened compensatory protection for the various possibilities of exposure of an officer to injury by criminal conduct, starting with direct, criminal threats.
[16] [2021] SASCA 133 at [50].
The terms of cl S4.31 of the Award being the same as those of cl S6.35 (with the exception of the inclusion of cl S6.35.3 in the SAAS Award), Calligeros DPJ accepted that cl S4.32 should be read from a practical, industrial perspective in the context of the performance of police work.[17] He then said:[18]
Police officers are likely to be placed in harm’s way when dealing with criminal offences and when placed in a dangerous situation. For additional compensation to be payable when an injury occurs, cl S4.31 requires that a situation of heightened danger is present when the officer is injured.
[17] [2023] SAET 116 at [32].
[18] [2023] SAET 116 at [33].
It will be necessary to return to this passage. For present purposes, Calligeros DPJ explained this statement by reference to the cascading coverage of each of cll S4.31.1, S4.31.2 and S4.31.3. The last of these clauses applies where the injury ‘occurred in other circumstances where the officer is placed in a dangerous situation’, that is, circumstances other than circumstances of criminal conduct covered by the previous two clauses. In respect of this clause, Calligeros DPJ noted:[19]
In Kimber, the Court of Appeal held that this court was entitled to find that being ‘placed in a dangerous situation’ required more than a situation where ‘there is a risk of harm or injury to an officer’.[20] The Court of Appeal observed that additional compensation is payable because of ‘the particular character of the work undertaken by paramedics that distinguishes the exigencies of their workplace from most others’.[21]
(Footnotes in original)
[19] [2023] SAET 116 at [36].
[20] [2021] SASCA 133 at [16] and [74]; Chief Executive, Department of Premier and Cabinet, for Chief Executive, Department for Health and Wellbeing (SA Ambulance Service) v Kimber [2021] SAET 71 [93].
[21] [2021] SASCA 133 [47].
While this observation concerned a sub-clause not in contention here, it clearly influenced the interpretation that Calligeros DPJ placed on cl S4.31.2. Having made this observation, Calligeros DPJ expressed agreement with the view expressed by the AUDPM that cl S4.31.2 was ‘intended to emphasise the closeness of the causal connection required between the injury and the criminal offence in a proximate sense’.[22] However, he did not consider the requisite degree of connection to be present in this case.
[22] [2023] SAET 116 at [38].
His Honour’s reasons for reaching that conclusion proceeded as follows. First, he noted that cl S6.35 contains additional protections for ambulance officers than are to be found for police in cl S4.31. This was a reference to the inclusion of cl S6.35.3. He observed that it might be thought anomalous that ambulance officers, who would likely have less exposure to crime, could receive compensation in a broader set of circumstances than police officers.[23] However, he also observed that each of cll S4.31 and S6.35 was directed to situations difficult to control and which carried a heightened risk of injury:[24]
That suggests that despite police and ambulance officers having quite different roles, additional compensation is payable when an injury arises whilst dealing with criminal conduct and other dangerous situations.
[23] [2023] SAET 116 at [39].
[24] [2023] SAET 116 at [40].
Against that broad, purposive observation, Calligeros DPJ then construed the text in issue:[25]
One of the Macquarie Dictionary definitions of the word ‘direct’ cited in argument is: ‘without intervening agency; immediate; personal’. The definition treats the word ‘immediate’ as being in part synonymous with the word ‘direct’. In my view, the expression ‘occurred as a direct and immediate result of conduct that is or appears to be a criminal offence’ uses the words ‘direct’ and ‘immediate’ to indicate that the injured police officer must be sufficiently proximate to the conduct which causes the injury at the time the injury is sustained. That view is consistent with the ‘industrial purpose of providing heightened compensatory protection for the various possibilities of exposure of an officer to injury by criminal conduct[26] described in Kimber.
(Footnote in original, emphasis added)
[25] [2023] SAET 116 at [41].
[26] [2021] SASCA 133 [50].
In this regard, Calligeros DPJ noted the statement in Kimber that cl S6.35 was ‘concerned with compensation for injuries that occur in circumstances of risk that go beyond those ordinary risks of employment that might reasonably be ameliorated by policies and procedures’.[27] He then determined the application of cl S4.31.2 to Ms Smith’s injury as follows:[28]
While Ms Smith’s reaction to learning of the murder was immediate in the sense of having a fast onset, it was not sufficiently proximate to the murder which caused the injury and did not occur ‘as a direct and immediate result’ of the offence for the purposes of S4.31.2. It is the nexus to the offence which cl S4.31.2 of the Award is directed to. Ms Smith did not attend the murder scene. The injury occurred after Ms Smith learned of the murder from a friend and fellow officer in a phone call not made for operational purposes but because the friend and fellow officer knew that Ms Smith had dealings with the victim on the preceding day. Ms Smith’s involvement with the victim was in relation to a traffic offence and had ceased prior to the murder being committed. The criminal conduct which Ms Smith was involved was concluded before the murder occurred. The police work performed by Ms Smith in relation to the victim was not related to the murder in an operational sense.
[27] Kimber v Chief Executive, Department of Treasury and Finance [2021] SASCA 133 at [57]; cited in Smith v South Australia Police, Department of Treasury and Finance [2023] SAET 52 at [41].
[28] [2023] SAET 116 at [42].
Calligeros DPJ emphasised that the result would turn on all the facts. He gave the example of where an officer investigating a crime is injured when they see a deceased or badly injured person at a crime scene, after the crime has been committed. He accepted that it was at least possible that cl S4.31.2 might be satisfied in such a case.[29] In that regard he emphasised the greater proximity to the crime being investigated than in the present case and the fact of injury at the crime scene.
[29] [2023] SAET 116 at [43].
As already noted, Hannon AUJ expressly agreed with the reasons of Calligeros DPJ and added some further reasons of his own. He referred to the approach of this Court in Kimber and said:[30]
Adopting the approach of the Court of Appeal in Kimber, the first two clauses of S4.31 of the Award, when read with the ‘catch-all’ clause S4.31.3, identify anticipated circumstances where officers can be ‘placed in a dangerous situation’, described by circumstances of heightened risk. Thus the focus of the whole clause is on heightened risk presented by the circumstances in question.
[30] [2023] SAET 116 at [149].
This was, clearly enough, a reference to the following observation by the Court of Appeal in Kimber with respect to the comparable clause, cl S.6.35.4:[31]
Clause S6.35.4 is then concerned with where the injury ‘occurred in other circumstances where the officer is placed in a dangerous situation’. A natural reading of the clause suggests that this is a catch-all clause for dangerous situations other than the dangerous situations described in the first three clauses. That is, the first three clauses identify anticipated circumstances where officers can be placed in a ‘dangerous situation’, described by reference to circumstances of heightened risk. Clause S6.35.4 covers other dangerous situations not specified. A practical reading suggests that, in context, the focus of the whole clause is on heightened risk presented by the circumstances in question.
[31] [2021] SASCA 133 at [52].
Hannon AUJ observed that while cl S4.31.1 had a narrow operation in that it required that criminal conduct be ‘directed at the officer’, it had a broader causation test, in that the injury need only have ‘resulted from’ that conduct.[32] It was uncontroversial that under that clause, the officer need not be physically present when the criminal conduct directed at the officer occurs. The ‘direct and immediate result’ criterion in cl S4.31.2 imposed a much stricter causation test.[33]
[32] [2023] SAET 116 at [151].
[33] [2023] SAET 116 at [152].
Hannon AUJ considered that the reasons of the AUDPM implied that Ms Smith’s injury occurred at some point before receiving the phone call from Mr Mitchell. We do not read the reasons of the AUDPM in that way. In any event, on the basis that the injury was sustained during the phone call, Hannon AUJ then continued:[34]
The fact that Ms Smith suffered an immediate and severe psychiatric injury upon the occurrence of the phone call from Mr Mitchell is understandable given her involvement with the victim and her family the evening before and her feelings of distress as to whether that involvement may have contributed to the occurrence of the tragic event.
However, the general nature of Ms Smith’s duties in the traffic policing division, and the fact of her previous involvement with the victim and her family in the discharge of those duties, and her understandable distress upon being informed of the murder, and that the father’s criminal conduct may not have occurred but for her involvement, are not matters which separately or together can elevate the closeness of the causal connection between the injury and the criminal conduct to the extent that Ms Smith’s injury can be found to have occurred as a ‘direct and immediate’ result of the criminal conduct. The words ‘direct and immediate’, in the context of the contrast between the provisions of S4.31.1 and S4.31.2, contemplate a close degree of physical and temporal proximity to the criminal conduct from which the injury is said to result. I do not accept that the requirement in this respect goes as far as contended by the Department, so as to necessarily exclude a claimant who is not physically present and in sight of hearing of the criminal conduct, such as a first responder, for example. That is a question best left for a case dealing with such circumstances.
[34] [2023] SAET 116 at [156]-[157].
Hannon AUJ concluded that in circumstances where the injury occurred on the day following the criminal conduct and was the result of a phone call, it was an indirect result of the criminal conduct and was not sufficiently proximate to that conduct to be a ‘direct and immediate result’ of that conduct within the meaning of cl S4.31.2. That was notwithstanding that it could be said to have occurred immediately on the occasion of the phone call.[35]
[35] [2023] SAET 116 at [158].
Rossi DPJ, in dissent, approved and adopted the approach of the AUDPM. He said:[36]
The Auxiliary Deputy President was correct to find that the use of the word ‘direct’ in cl S4.31.2, is intended to exclude remote or tenuous causes and does not exclude a finding of a direct cause where there are unbroken steps of a causal chain between the criminal offence and the injury. She was also correct to find that the word ‘immediate’, in context and taking into account the purpose of the extended benefits, did not impose a temporal link necessitating the psychiatric injury to manifest at the time of the actus reus of the criminal offence. As with the analysis of the ordinary dictionary meaning of the words ‘direct’ and ‘immediate’ the approach in the judgments are also consistent with officer Smith’s submission that the words should be construed as a composite phrase intended to emphasise the closeness required between the event and the outcome.
[36] [2023] SAET 116 at [111].
On that approach, Rossi DPJ considered that the facts as found by the AUDPM permitted a finding that the necessary causal connection to the nature of the policing was proven. He set out, in an inclusive list, factors that permitted this conclusion:[37]
[37] [2023] SAET 116 at [114].
(1)The emotional state of the father commencing with his initial appearance of being pale and angry at his home and continuing at the hospital with an expression indicating that his daughter’s conduct meant it was “the end of the world.”
(2)The observations of officer Smith that the young victim, at her home, appeared to be under the influence of a drug or substance.
(3)Officer Smith’s observation of the victim at the hospital and her conclusion that the victim was clearly affected by drugs. She noted that the victim appeared incapable of conducting a conversation.
(4)At the hospital officer Smith noted, in the context of the victim’s father having been pale and angry at the home earlier that day, that the father had taken his daughter’s mobile phone away from her.
(5)All of officer Smith’s interactions with both the victim and her father, within hours of the victim’s murder by her father, were in the exercise of officer Smith’s powers as a police officer.
(6)Officer Smith became aware of the murder whilst working as a police officer and as a result of being told by another police officer, the occurrence of the criminal offence.
(7)Officer Smith immediately began developing symptoms of her psychiatric work injury upon being told the victim had been killed by her father.
(8)Officer Smith was told of the occurrence of the criminal offence because of her involvement with both the victim and her killer, the previous day, in the discharge of her duties as a police officer.
(9)The psychiatric injury was caused by the series of interactions between officer Smith and the victim and her father in the discharge of her duties as a police officer. There was a direct link between those interactions and being notified the next day, at work of the commission of the criminal offence of murder. The crime was committed within that period of a day or so overall.
Rossi DPJ emphasised the absence of any intervening event in this chain and considered that Ms Smith was particularly vulnerable to psychiatric injury because of her ‘close connection’ with the victim and the victim’s father. Ms Smith was continually thinking about whether she could have done anything to prevent the murder.[38] On this basis, Rossi DPJ concluded, the evidence supported the conclusion that there was a ‘strong connection’ between the injury Ms Smith suffered, the discharge of her duties as a police officer, and the murder.
[38] [2023] SAET 116 at [116].
The appeal
Ms Smith’s appeal to this Court is subject to leave being granted to appeal on a question of law. The questions of law arising from the grounds of appeal were articulated in argument. It is convenient first to set out the grounds of appeal:
1.On the primary facts as found by the learned trial Deputy President, and the undisputed facts, the case fell within the description in S4.31.2 of the Police Officers Award (the Award) or alternatively that was the only available conclusion. (Rossi [114])
2.Calligeros DPJ (with whom Hannon ADPJ comprised the majority position) erred in law in that they:
a. Misconstrued S4.31.2 of the Award, in failing to construe the provision according to the ordinary meaning of the words used in the provision
b. Misconstrued S4.31.2 of the Award in concluding that the expression ‘occurred as a direct and immediate result of conduct that is or appears to be a criminal offence’ uses the words ‘direct’ and ‘immediate’ to indicate that the police officer must be sufficiently proximate to the conduct which causes the injury at the time the injury is sustained. (Reasons [41])
c. In concluding that the officer must be sufficiently proximate to the criminal conduct misapplied the test contained in the Award which requires a direct and immediate connection between the injury and the criminal conduct. (Reasons [35])
d. In failing to have regard or refer to undisputed factual findings and evidence regarding the Appellant’s interaction with both the murderer and the victim in the immediate lead up to the murder. (Reasons [42])
There was no real dispute that separate questions of law were raised by each of Ground 1, Grounds 2a-c (together) and Ground 2d. There was some difference as to what those questions of law were. The applicant submitted, in effect, that Ground 1 raised the following question:
Whether on the facts as found and undisputed the applicant’s psychiatric injury occurred as a direct and immediate result of the murder or alternatively that this was the only available conclusion on the correct construction of the provision.
The respondent contended that the only question of law raised was narrower than this, effectively corresponding with the ‘alternative’ aspect of the applicant’s formulation:
On the facts as found and undisputed, was the applicant’s psychiatric injury only capable of being characterised as having occurred as ‘a direct and immediate result’ of the murder within the meaning of clause S4.31.2 of the Award?
In Vetter v Lake Macquarie City Council,[39] to which this Court referred in Kimber[40] when discussing the approach to formulating a question of law, the High Court explained:[41]
[39] Vetter v Lake Macquarie City Council (2001) 202 CLR 439.
[40] [2021] SASCA 133 at [25]-[28].
[41] (2001) 202 CLR 439 at [24]-[25] (Gleeson CJ, Gummow and Callinan JJ).
Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as it was put by Priestley JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law[42]. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in Australian Gas Light Co v Valuer-General[43]:
“[I]f the facts inferred … from the evidence … are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law”.
In his speech in Edwards (Inspector of Taxes) v Bairstow[44] Lord Radcliffe identified an error of law as arising if “the true and only reasonable conclusion contradicts the determination”. Mason J (with whom Gibbs, Stephen, Murphy and Aickin JJ agreed) discussed the matter comprehensively and stated the law on this topic in this country as follows in Hope v Bathurst City Council[45]:
“Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. One example is the judgment of Fullagar J in Hayes v Federal Commissioner of Taxation[46], where his Honour quoted the comment of Lord Parker of Waddington in Farmer v Cotton’s Trustees[47], which was adopted by Latham CJ in Commissioner of Taxation v Miller[48], that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. Fullagar J then said[49]: ‘… this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact). The “facts” referred to by Lord Parker … are the facta probantia. Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally – so far as I can see, always – be a question of law.’
However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v Cozens[50] was just such a case. The only question raised was whether the appellant’s behaviour was ‘insulting’. As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact.”
(Footnotes in original)
[42] Lake Macquarie City Council v Vetter (1999) 18 NSWCCR 34 at 48 [44]-[45].
[43] (1940) 40 SR (NSW) 126 at 138.
[44] [1956] AC 14 at 36.
[45] (1980) 144 CLR 1 at 7.
[46] (1956) 96 CLR 47 at 51.
[47] [1915] AC 922 at 932.
[48] (1946) 73 CLR 93 at 97.
[49] (1956) 96 CLR 47 at 51.
[50] [1973] AC 854.
In the present case, as was the case in Kimber, the Court is concerned with the application of an industrial award, rather than a statute, to factual circumstances. That application is dependent on the anterior exercise of construction of the relevant provision in the Award, an exercise undertaken in accordance with the principles explained in Qube Ports v Maritime Union of Australia,[51] discussed above.
[51] [2018] FCAFC 72 at [64]-[65] (White J, Mortimer and Bromwich JJ agreeing).
It was not in dispute that cl S4.31.2 is required to be construed according to the common or ordinary understanding of its words, and specifically, the words, ‘a direct and immediate result’. The parties did differ as to the scope of those words, on their common or ordinary understanding. However, this uncontroversial starting point impacts the question of law that can be said to arise on Ground 1. Once the construction of the clause is accepted to be a matter of the common or ordinary understanding of the words, the simple question whether the facts as found fall within those words is a question of fact. A question of law will only arise where the application of the clause to the facts is said to admit of only one answer—either that the only reasonable characterisation is that the clause applies, or that the only reasonable characterisation is that it does not apply.
For this reason, we accept the respondent’s articulation of the question of law that arises on Ground 1 of the Appeal.
Ground 2a, by itself, does not raise a question of law that the Court would decide. As already noted, it is not in contention that cl S4.31.2 is to be construed according to the ordinary meaning of the words. Rather, and as the applicant effectively accepted, a question of law arises on Grounds 2a-c considered together. We accept the essence of the respondent’s formulation of this question, which can be articulated as follows:
Whether it was open to construe the phrase ‘a direct and immediate result’ in cl S4.31.2 of the Award as ‘indicating that the injured police officer must be sufficiently proximate to the conduct which causes the injury at the time the injury is sustained’?
This question arises on the basis that the complaint raised by the three sub-grounds is that Calligeros DPJ erroneously deployed this impugned construction in concluding that the clause did not apply.
Ground 2d raises a separate complaint of inadequacy of reasons. Whether reasons for judgment by a judicial tribunal are adequate is a question of law. In this case, the respondent’s formulation of the question was accurate:
Whether the reasons given by the majority of the Full Bench for their decision were inadequate as a matter of law or demonstrate a failure to consider the case in accordance with the required legal principles?
The applicant characterised the question of law raised by Ground 1 as ‘the most useful’ question of law, because if this Court upheld Ground 1, the decision of the AUDPM would be restored. However, as a matter of logic, the question raised by Ground 1 necessarily only arises once the question raised by Grounds 2a-c is answered. That is because this second question is a question of pure construction. The first question assumes a settled construction and then asks whether, on the application of that construction to the facts, a particular conclusion is required. We commence, then, with the question raised by Grounds 2a-c.
Whether it was open to construe the phrase ‘a direct and immediate result’ in cl S4.31.2 of the Award as ‘indicating that the injured police officer must be sufficiently proximate to the conduct which causes the injury at the time the injury is sustained’? (Grounds 2a-c)
The applicant’s complaint is directed at the statement by Calligeros DPJ, highlighted above, that the clause uses the words ‘direct’ and ‘immediate’, ‘to indicate that the injured police officer must be sufficiently proximate to the conduct which causes the injury at the time the injury is sustained’. This statement, in the applicant’s submission, imported a requirement that is not present in the text, namely physical proximity between the officer and the conduct. It constituted an impermissible narrowing of the requirement. Rather, in the applicant’s submission, the words ‘direct and immediate result’ identify and emphasise the need for a close connection between the criminal conduct (in this case, the murder) and the injury.
The applicant illustrated the contention simply, by submitting that where the clause is as much concerned with psychiatric injury as it is with physical injury, an implication of a limit of physical proximity may be artificial and unrealistic. It effectively forecloses incorporation of a chain of causation in cases of psychiatric injury such that the matters relied upon by Rossi DPJ, set out above, could not be brought to account. The applicant submitted that this construction effectively meant that Calligeros DPJ did not take into account the requirement placed on her the day after the murder to recount her interactions with the victim and the murderer for the purpose of the murder investigation, before going home in distress.[52]
[52] [2023] SAET 116 at [42].
This last submission is the focus of the third question. The present question requires characterisation of the test that Calligeros DPJ articulated.
It is necessary to read this aspect of the reasons in context. Prior to making this statement, Calligeros DPJ characterised the various subclauses of cl S4.31 by comparison with the clause in issue in Kimber. Having noted that cl S4.31.1 is concerned with criminal conduct directed at an officer that results in an injury, he then turned to cl S4.31.2:[53]
Under cl S4.31.2, where the criminal conduct is not directed at the officer, the injury must occur as a ‘direct and immediate result’ of the criminal conduct. That requirement is there because the criminal conduct is not directed at the officer and lacks immediate direction or proximity to the officer. In other words, the requirement is designed to ensure that there is sufficient proximity between the criminal conduct and the injury.
(Emphasis added)
[53] [2023] SAET 116 at [35].
The highlighted passages indicate first, that Calligeros DPJ acknowledged expressly that cl S4.31.2 is not concerned with proximity between the criminal conduct and the officer. Indeed, he attributed the existence of the ‘direct and immediate’ requirement to a lack of such proximity. Secondly, his Honour expressly articulated a concept of proximity between the criminal conduct and the injury.
Next, and still before the passage the subject of complaint, Calligeros DPJ expressly agreed with the statement of the AUDPM that cl S4.31.2 is ‘intended to emphasise the closeness of the causal connection required between the injury and the criminal offence in a proximate sense’.[54] Two things may be drawn from this. First, his Honour again referred to the causal connection between the criminal conduct and the injury, not the officer. Secondly, as the respondent submitted, he here used the term ‘proximate’ as a measure of ‘causal connection’. It is not apparent that he was referring exclusively to physical proximity of the officer to the criminal conduct. It was in this paragraph that he announced his conclusion, for reasons that included the impugned passage, that he did not consider that the requisite degree of connection was present.
[54] [2023] SAET 116 at [38].
We accept that if the impugned passage stood alone and was properly taken to import a requirement that there must be physical proximity between the criminal conduct and the officer, that would constitute an impermissible narrowing of the clause. The passages preceding the impugned passage suggest strongly, however, that this is not what Calligeros DPJ meant.
Ultimately, Calligeros DPJ’s reasons for concluding that cl S4.31.2 was not satisfied in this case provide sufficient confidence that this is indeed not what he meant. Those reasons are themselves the subject of complaint as to their adequacy. However, in his Honour’s dispositive paragraph, quoted above,[55] it can be seen that he did not regard physical proximity of the officer as dispositive of the question, albeit that he did consider it to be a relevant matter in his assessment. Thus, he commenced this paragraph with the sentence:
‘While Ms Smith’s reaction to learning of the murder was immediate in the sense of having a fast onset, it was not sufficiently proximate to the murder which caused the injury and did not occur ‘as a direct and immediate result’ of the offence for the purposes of S4.31.2.
(Emphasis added)
[55] [2023] SAET 116 at [42].
The subject of this sentence is Ms Smith’s reaction, that is, her injury. It is that to which his Honour applied the concept of proximity for the purposes of the causation test in the clause. He then expressly brought to account the following:
·Ms Smith did not attend the murder scene;
·the injury occurred after her operational involvement with the victim had ceased;
·Ms Smith learned of the murder from a friend and fellow officer not made for operational purposes, but because that officer knew of her dealings with the victim the previous day;
·her involvement with the victim was in relation to a traffic offence and had ceased;
·the criminal conduct with which Ms Smith had been concerned was concluded before the murder occurred; and
·the police work performed by Ms Smith in relation to the victim was not related to the murder in an operational sense.
Again, these reasons are the subject of their own complaint. However, they show that Calligeros DPJ approached the phrase ‘direct and immediate’ as requiring a connection that was not defined by physical proximity of the officer to the crime. It must be accepted that Calligeros DPJ did regard the physical proximity of the officer to the crime as relevant to whether the injury occurred as a direct and immediate result of the criminal conduct. However we do not accept that he narrowed the test in the manner submitted by the applicant.
This conclusion is supported by a hypothesis offered by his Honour in rejecting the respondent’s (then) submission as to the strictness of the causation requirement:
Without suggesting what the outcome of the following scenarios should be, it is at least possible that cl S4.31.2 may be satisfied if an officer investigating a crime is injured when they see a deceased or badly injured person at a crime scene after the crime has been committed. While the result will turn on all the facts, there is a much closer proximity to a crime which an officer is investigating and if they are injured at the crime scene than there is on the present facts.
This hypothesis incorporated the physical proximity of an officer to the aftermath of a crime in the case of psychiatric injury as a relevant matter, but again focused on the proximity of the injury to the crime.
As noted above, Hannon AUJ added reasons of his own, in addition to agreeing with those of Calligeros DPJ. We do not think that Hannon AUJ’s reasons, the dispositive parts of which are quoted above, indicate that his Honour separately indicated that he construed the clause in the manner of which the applicant complains. Hannon AUJ engaged in an evaluative assessment of the matters relied on and concluded that these were ‘not matters which separately or together can elevate the closeness of the causal connection between the injury and the criminal conduct…’.[56]
[56] [2023] SASCA 116 at [157] (emphasis added).
Like Calligeros DPJ, Hannon AUJ deployed the concept of proximity in his disposition of the appeal:[57]
The words ‘direct and immediate’, in the context of the contrast between the provisions of S4.31.1 and S4.31.2, contemplate a close degree of physical and temporal proximity to the criminal conduct from which the injury is said to result.
[57] [2023] SASCA 116 at [157].
In the context of the reasons read as a whole, we do not read this passage as impermissibly narrowing the scope of the clause. The words ‘direct and immediate result’ do contemplate close physical and temporal proximity between the criminal conduct and the injury. That does not mean that the absence of an immediate physical proximity between the officer and the crime will inevitably mandate non‑application of the clause. We do not read Hannon AUJ’s reasons as saying otherwise. However such an absence would often, perhaps even usually, be a relevant matter to take into account.
It is important to note the dangers that can be associated with deploying descriptive words to explain the meaning or reach of words used in the instrument. To use the term ‘proximity’ when articulating the test required by cl S4.31.2 carries a risk that this word will be taken as a substitute for the actual words used. Calligeros DPJ was expressly aware of this risk.[58] However, notwithstanding that danger, it can be helpful and even necessary to deploy descriptive phrases to explain words used in an instrument, at least where the words in the instrument are characterised by abstraction or imprecision. Different descriptions might be equally serviceable. As this Court said in Kimber:[59]
The difficulty is that it is one thing to say that a posited description or characterisation of a phrase is available. Consistently with the High Court’s observation in Vetter, however, more than one description may well be apposite in the construction of a phrase in an instrument.
[58] [2023] SAET 116 at [25], citing WorkCover Corporation v Sherriff, unreported, 1 October 1996, judgment no. S5381 (Lander J).
[59] [2021] SASCA 133 at [38].
In such cases, a proffered descriptive word or phrase must not purport to operate as a definitional substitute for the words used in the instrument. Similarly, effectively exhausting the meaning of an abstract term with a substitute word would likely occasion error. Clearly enough, so would using a term that is manifestly not within the contemplation of the words used. However, a decision‑maker otherwise has scope to deploy descriptive words or phrases to explain the content of an abstraction.[60] Imprecise phrases in an instrument may necessarily invite such efforts.
[60] [2021] SASCA 133 at [63].
On an appeal on a question of law, the complaint is available that a decision‑maker has erroneously substituted a definition or employed a description that goes beyond the bounds of the definition. That is the applicant’s complaint here. For the reasons given above, We do not accept that the majority of the Full Bench did so.
Having found that the majority of the Full Bench did not construe cl S4.31.2 in the manner submitted by the applicant, the necessary question of law does not arise. We would refuse leave to appeal on Grounds 2a-c.
On the facts as found and undisputed, was the applicant’s psychiatric injury only capable of being characterised as having occurred as ‘a direct and immediate result’ of the murder within the meaning of cl S4.31.2 of the Award? (Ground 1)
The effect of the applicant’s submission in support of Ground 1, adopting the approach taken by Rossi DPJ, was that the only conclusion reasonably open on a proper construction of the Award was that her injury occurred as a direct and immediate result of the murder within the meaning of cl S4.31.2. In this regard, the applicant submitted that ‘in every sense’, her injury was sufficiently connected to the conduct constituting the offence so as to fall within the terms of the Award. She submitted that her psychiatric injury exemplified the heightened risk that police officers face when dealing with volatile situations and people.
As discussed above, cl S4.31.2 is required to be construed according to the common or ordinary understanding of the words, ‘a direct and immediate result’. Whether the facts as found fall within those words is a question of fact, unless the circumstances admit of only one answer. As the New South Wales Court of Appeal observed in Williams v Bill Williams Pty Ltd:[61]
So also it may happen that the tribunal at first instance is confronted with the task of applying the statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views. Here, again, it is not possible to conclude that the decision appealed from is erroneous in point of law.
[61] [1971] 1 NSWLR 547 at 557 (Mason JA).
The application of the phrase, ‘direct and immediate result’, on its ordinary construction, requires factual assessments of degree. Differing emphases may be placed on the unbroken nature of a chain of causation or on the physical and temporal proximity of an injury to the criminal conduct. We accept the respondent’s submission that it was open to the majority of the Full Bench to give less weight to the factual matters to which Rossi DPJ gave emphasis. By the same token, it was open to the majority to place weight on the facts, for example, that the applicant did not attend at the murder scene and that the police work she was performing was not related to the investigation of the murder.
Whether this Court might have reached a different conclusion is, without more, irrelevant. It was open to the members of the Full Bench, on an appeal by way of rehearing, to draw inferences from the evidence and to give the weight that they saw fit to various factual matters in assessing whether the facts answered the phrase in the Award, ‘a direct and immediate result’.
In this regard, we would respectfully accept the characterisation of cl S4.31.2 given by Hannon AUJ as usefully descriptive, albeit not exhaustive:[62]
The words ‘direct and immediate’, in the context of the contrast between the provisions of S4.31.1 and S4.31.2, contemplate a close degree of physical and temporal proximity to the criminal conduct from which the injury is said to result. I do not accept that the requirement in this respect goes as far as contended by the Department, so as to necessarily exclude a claimant who is not physically present and in sight or hearing of the criminal conduct, such as a first responder, for example. That is a question best left for a case dealing with such circumstances.
[62] [2023] SAET 116 at [157].
There was clearly scope for the majority to emphasise the factors that they did, having regard to that description, and to conclude that the applicant’s injury was not the direct and immediate result of the murder. Again, and subject to consideration of the Notice of Alternative Contention, that conclusion does not show that the line of reasoning engaged in by Rossi DPJ was not open. For present purposes, however, it is sufficient to conclude that the reasoning of the majority was not precluded by the words of the clause.
We grant leave to appeal on Ground 1 but dismiss the ground.
Whether the reasons given by the majority of the Full Bench for their decision were inadequate as a matter of law or demonstrate a failure to consider the case in accordance with the required legal principles? (Ground 2d)
The applicant’s complaint of inadequacy of reasons is directed at the dispositive paragraphs of the reasons of Calligeros DPJ and Hannon AUJ, which are set out above. The specific complaint is that the majority failed to have regard to undisputed factual findings and evidence regarding Ms Smith’s interaction with the victim and the murder in the immediate lead up to the murder.
The applicant submitted that the reasons did not address the fact that she was required to be contacted regarding the murder as part of the murder investigation when she was at work, or that she was required to recount her dealings and investigation that morning. She further complained that neither member of the majority referred to the unchallenged expert evidence that there was no other cause of her psychiatric injury, or of the evidence equating her injury with that of a first responder.
With respect to Hannon AUJ’s separate reasons, the applicant complained that his Honour did not refer to the matters relied on by Rossi DPJ or the psychiatric evidence. She also criticised Hannon AUJ’s statement expressing the view that the reasons of the AUDPM implied that Ms Smith’s injury occurred at some point before receiving the phone call from Mr Mitchell. As indicated above, we disagree with that characterisation of the AUDPM’s reasons. However, Hannon AUJ clearly accepted that the injury occurred when the applicant was advised of the murder by telephone on 22 July 2019.[63] In this regard he did not misapprehend the applicant’s case.
[63] [2023] SAET 116 at [155s].
In DL v The Queen,[64] the High Court explained some broad parameters for assessing the adequacy of reasons, focusing on what has been put into issue by the parties:[65]
Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”.[66] At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.[67]
(Footnotes in original)
[64] (2018) 266 CLR 1.
[65] DL v The Queen (2018) 266 CLR 1 at [33] (Kiefel CJ, Keane and Edelman JJ).
[66] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.
[67] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443.
The respondent submitted that the adequacy of reasons can, to an extent, be assessed by reference to whether an appeal lies from the decision and, if so, the nature of that appeal. In Soulemezis v Dudley (Holdings) Pty Ltd,[68] McHugh JA reasoned:[69]
An erroneous or perverse finding of fact raises no question of law and cannot be challenged by way of appeal. What is decisive is that his Honour’s judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact. But that is enough in a case where no appeal lies against the finding of fact. Accordingly there was no failure to give reasons sufficient to constitute an error of law.
[68] (1987) 10 NSWLR 247.
[69] (1987) 10 NSWLR 247 at 282.
Since the early 1980s, the obligation to give reasons has been recognised as a necessary incident of judicial power,[70] rather than as just a facilitator of appellate review.[71] While detailed reasoning in support of a finding of fact may not be required where an appeal lies only on a question of law, a failure to address a party’s substantial argument may nonetheless render the reasons inadequate and thereby constitute an error law.[72]
[70] Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 (Mahoney JA); Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666-667 (Gibbs CJ); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278 (McHugh JA); Wainohu v New South Wales (2011) 243 CLR 181 at [54]-[58] (French CJ and Kiefel J).
[71] Cf Pettitt v Dunkley [1971] 1 NSWLR 376 at 388 (Moffitt JA).
[72] DL v The Queen (2018) 266 CLR 1 at [131] (Nettle J).
In the present case, the facts were not contentious. Calligeros DPJ set out, at the outset of his reasons, the findings of fact of the AUDPM, which he adopted. It is apparent that what was centrally in issue was the construction of the Award. This occupied the bulk of his Honour’s reasons. It is fair to say that the dispositive part of his Honour’s reasons that followed was relatively brief. Those paragraphs did identify, however, the matters that Calligeros DPJ considered prevented a finding that the injury occurred as a direct and immediate result of the murder. The determinative character accorded to these matters must be read in the context of the descriptive features of the causation requirement that his Honour articulated, discussed above.
The expert evidence as to the cause of the applicant’s psychiatric illness had never been in issue. The AUDPM accepted the medical evidence ‘on the issue of causation generally’.[73] We do not accept that the failure to refer to this evidence in the dispositive part of the reasons of the majority of the Full Bench rendered those reasons inadequate. That evidence was not in dispute.
[73] [2023] SAET 52 at [22].
The fact that Calligeros DPJ did not mention some of the matters relied upon by Rossi DPJ does not mean that the reasons were inadequate. Given that the focus of the contest was the construction of the Award, it was sufficient for his Honour to identify the matters that he considered together stood in the way of the requisite finding of causation, given the construction he relied on. The chain of causation that Rossi DPJ emphasised was comprised of accepted facts. Calligeros DPJ’s necessary rejection of that chain as meeting the ‘direct and immediate’ requirement is apparent on his Honour’s descriptive articulation of the test, discussed above, together with his reliance on the matters that, in his view, stood in the way of the clause being satisfied.
Hannon AUJ went further, in that he also addressed the immediacy and severity of the psychiatric injury that Ms Smith suffered on the occurrence of the phone call.[74]
[74] [2023] SAET 116 at [156]-[157].
Given the nature of the contest between the parties over the construction of the Award and the fact that the material facts were not in contest, we do not think that the applicant’s criticisms establish a failure to give adequate reasons or to address the applicant’s case.
We grant leave to appeal on Ground 2d but dismiss the ground.
The Notice of Alternative Contention
The respondent filed a Notice of Alternative Contention, the effect of which was to advance a case the reverse of Ground 1 of the Notice of Appeal. Given our answers to the questions of law raised on the Notice of Appeal and consequent dismissal of the appeal, it is not necessary to address this. Essentially, the respondent raises a question of law as to whether the injury suffered by Ms Smith was incapable of being characterised as having ‘occurred as a direct and immediate result of conduct that is or appears to be a criminal offence’ within the meaning of cl S4.31.2. The raising of this question is premised on the respondent’s contentions that the Full Bench should have concluded that:
a.the word ‘direct’ in the phrase ‘direct and immediate’ requires a physical connection between the injury and the conduct that is or appears to be a criminal offence; and
b.the word ‘immediate’ in the phrase ‘direct and immediate’ requires a temporal connection between the injury and the conduct that is or appears to be a criminal offence.
On dismissal of the appeal, the question of law raised by the Notice of Alternative Contention does not arise. In any event, however, having regard to our observations about the use of descriptive words to assist with the construction of abstract and imprecise words and phrases in an instrument, we doubt that even positive answers to the respondent’s two contentions would supply an answer to the question of law. Given our acceptance of the general descriptive analysis offered by Hannon AUJ,[75] whether the putative requirements of physical and temporal ‘connections’ were met would likely remain an assessment of fact and degree.
[75] [2023] SAET 116 at [157].
Conclusion
We grant leave to appeal on Grounds 1 and 2d. We refuse leave to appeal on Grounds 2a-c. We dismiss the appeal.
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