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

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Smith v State of New South Wales (NSW Police Force) & Anor [2025] NSWPIC 149
APPLICANT:	James Frederick Isherwood Smith
FIRST RESPONDENT:	State of New South Wales (NSW Police Force)
SECOND RESPONDENT:	Secretary, Department of Communities & Justice
MEMBER:	Gaius Whiffin
DATE OF DECISION:	14 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for psychological injuries; claims for weekly benefits compensation and treatment expenses pursuant to section 60 of the 1987 Act; consideration of whether the applicant sustained a psychological injury with the first respondent (in accordance with section 4 of the 1987 Act) as a result of incapacity in 2014 or 2015; confirmation that the applicant sustained a psychological injury with the second respondent (in accordance with section 4 of the 1987 Act); consideration as to the extent of the applicant’s entitlements and whether the Commission had jurisdiction to award entitlements pursuant to section 38 of the 1987 Act; consideration as to how to apportion liability between two injuries found pursuant to sections 22 and 22A of the 1987 Act; consideration as to whether delay by the applicant would affect his entitlements or the Commission’s ability to apportion by reference to sections 254 and 261 of the 1998 Act; NSW Police Force v Kearns and Anor, Sutherland Shire Council v Baltica General Insurance Co Ltd, Ferro v Mercon Group Pty Ltd, Inghams Enterprises Pty Ltd v Thoroughgood, P & O Berkeley Challenge Pty Ltd v Alfonzo & Ors, Demolon Pty Ltd v Parbury Building Products Ltd and Anor, Haddad v The GEO Group Australia Pty Ltd, and BHP Billiton Ltd & Anor v Bourke & Ors considered; Held – applicant sustained a psychological injury pursuant to section 4(b)(i) of the 1987 Act during the course of his employment with the first respondent; deemed date of the injury in accordance with section 15(1)(a)(i) of the 1987 Act is 13 August 2015; applicant also sustained a psychological injury pursuant to section 4(b)(ii) of the 1987 Act during the course of his employment with the second respondent; deemed date of the injury in accordance with section 16(1)(a)(i) of the 1987 Act is 29 March 2021; awards are made in favour of the applicant pursuant to sections 60, 36(1), 37(1), and 37(2) of the 1987 Act; the Commission does not have jurisdiction to determine the applicant’s entitlements pursuant to section 38 of the 1987 Act; pursuant to sections 22A(4) and 22A(5) of the 1987 Act the second respondent is to pay the applicant’s awards; pursuant to section 22 of the 1987 Act liability for the applicant’s awards is apportioned to the first respondent to the degree of two-thirds; sections 254 and 261 of the 1998 Act do not apply either to prevent the applicant’s awards being made or to prevent the apportionment findings being made.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained a psychological injury pursuant to s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act), during the course of his employment with the first respondent. The deemed date of the injury in accordance with s 15(1)(a)(i) of the 1987 Act is 13 August 2015. 2. The applicant also sustained a psychological injury pursuant to s 4(b)(ii) of the 1987 Act, during the course of his employment with the second respondent. The deemed date of the injury in accordance with s 16(1)(a)(i) of the 1987 Act is 29 March 2021. 3. The applicant had no current work capacity between 29 March 2021 and 24 September 2023 (save for a current work capacity of $950 per week between 1 June 2022 on 15 June 2022). 4. The applicant’s unadjusted pre-injury average weekly earnings (PIAWE) is $1,195.44. The PIAWE is then indexed: (a) from 1 April 2021 – $1,230; (b) from 1 October 2021 – $1,240; (c) from 1 April 2022 – $1,260; (d) from 1 October 2022 – $1,300, and (e) from 1 April 2023 – $1,350. 5. The applicant is entitled to awards: (a) pursuant to s 60 of the 1987 Act; (b) pursuant to s 36(1) of the 1987 Act between 29 March 2021 and 27 June 2021; (c) pursuant to s 37(1) of the 1987 Act between 28 June 2021 and 31 May 2022, as well as between 16 June 2022 and 24 September 2023, and (d) pursuant to s 37(2) of the 1987 Act between 1 June 2022 and 15 June 2022. 6. The Commission does not have jurisdiction to determine the applicant’s entitlements pursuant to s 38 of the 1987 Act, in relation to periods after 24 September 2023. 7. Pursuant to ss 22A(4) and 22A(5) of the 1987 Act, the second respondent is to pay the applicant’s awards. 8. Pursuant to s 22 of the 1987 Act, liability for the applicant’s awards is apportioned to the first respondent to the degree of two-thirds. It is to pay this apportioned share to the second respondent in accordance with s 22A(4) of the 1987 Act. 9. Sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) do not apply either to prevent the applicant’s awards being made or to prevent the apportionment findings being made. The Commission orders: 10. The second respondent is to pay the applicant’s reasonably necessary medical expenses in accordance with s 60 of the 1987 Act. 11. The second respondent is to pay the applicant weekly benefits compensation in accordance with s 36(1) of the 1987 Act, as follows: (a) $1,135.67 per week between 29 March 2021 and 31 March 2021, and (b) $1,168.50 per week between 1 April 2021 and 27 June 2021. 12. The second respondent is to pay the applicant weekly benefits compensation in accordance with s 37(1) of the 1987 Act, as follows: (a) $984 per week between 28 June 2021 and 30 September 2021; (b) $992 per week between 1 October 2021 and 31 March 2022; (c) $1,008 per week between 1 April 2022 and 31 May 2022; (d) $1,008 per week between 16 June 2022 and 30 September 2022; (e) $1,040 per week between 1 October 2022 and 31 March 2023, and (f) $1,080 per week between 1 April 2023 and 24 September 2023. 13. The second respondent is to pay the applicant weekly benefits compensation in accordance with s 37(2) of the 1987 Act, as follows: (a) $247 per week between 1 June 2022 and 15 June 2022. 14. Two-thirds of liability for the applicant’s awards is apportioned to the first respondent. It is to pay this apportioned share to the second respondent in accordance with s 22A(4) of the 1987 Act. 15. Credit is given to the second respondent for payments of weekly benefits compensation already made to the applicant. 16. The first respondent is to pay the applicant’s costs as agreed or assessed. A complexity uplift of 30% is certified in this regard in accordance with table 4 item 4 to schedule 6 of the Workers Compensation Regulation 2016. 17. There will be no order as to costs between the second respondent and the first respondent. 18. Leave is given to the parties to approach the Commission prior to 1 May 2025 should any of them dispute the calculations made at determination 4 and at orders 11-13 above. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

James Frederick Isherwood Smith (the applicant) is 33-years-old. He worked for the NSW Police Force (the first respondent) from the date of his attestation on or around
8 August 2013 until he resigned around September 2014. He later worked for the NSW Department of Communities & Justice (the second respondent) from December 2019 until around March 2021.
He alleges that he sustained a psychological injury as a result of employment events during both periods of employment. In this regard, he lodged a compensation claim form with the first respondent by an email from his solicitors dated 21 June 2021. His solicitors also later sent an email to the second respondent dated 5 November 2022 claiming compensation from it with regard to his psychological injury. They also emailed a compensation claim form in this regard to the second respondent by email dated 10 November 2022.
The first respondent issued a notice denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the applicant's claim in relation to his alleged psychological injury, dated 1 July 2021. It then reviewed its denial of liability in this regard in accordance with s 287A of the 1998 Act, but maintained the denial by way of a notice dated 10 February 2022.

The first respondent further issued an additional notice denying liability under s 78 of the 1998 Act, dated 9 August 2022. It then reviewed its denial of liability in this regard in accordance with s 287A of the 1998 Act, but maintained the denial by way of a notice dated 29 May 2024.
In summary, the first respondent denied that the applicant had sustained a psychological injury as a result of employment events during his period of employment with it, in accordance with ss 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act). It also alleged that even if he did sustain an injury in this regard, it was not responsible to compensate him regarding that injury, as:
(a) a later employer of his would be so responsible – in accordance with ss 15 or 16 of the 1987 Act, and
(b) he had not complied with ss 254 and 261 of the 1998 Act.
The second respondent issued a notice denying liability under s 78 of the 1998 Act for the applicant's claim in relation to his alleged psychological injury, dated 15 August 2023.
In summary, the second respondent accepted “liability for an aggravation of your pre-existing PTSD”, but alleged that the applicant’s “incapacity, need for treatment and permanent impairment ‘result from’ your original injury with the NSW Police”.
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (Commission), the applicant claims weekly benefits compensation from 15 August 2023 to date and on a continuing basis pursuant to s 37 of the 1987 Act.

ISSUES FOR DETERMINATION

The issues for determination in these proceedings are:
(a) did the applicant sustain a psychological injury with the first respondent (in accordance with s 4 of the 1987 Act) as a result of incapacity in 2014 or 2015 – if so, what is the deemed date of this injury in accordance with ss 15 or 16 of the 1987 Act;
(b) if the answer to (a) is in the affirmative, is the applicant precluded from claiming compensation against the first respondent due to ss 254 and/or 261 of the 1998 Act;
(c) if the answer to (a) is in the affirmative and the answer to (b) is in the negative, what are the compensation entitlements of the applicant and how are they to be apportioned between the respondents in accordance with s 22 of the 1987 Act - noting that (see paragraph 7 above) the second respondent has already accepted liability for an ‘aggravation of disease injury’ in accordance with s 4(b)(ii) of the 1987 Act;
(d) if the answers to both (a) and (b) are in the affirmative, what are the applicant’s compensation entitlements (if any) against the second respondent, and
(e) if the answer to (a) is in the negative:
(i)has the applicant sustained a psychological injury in accordance with s 4 of the 1987 Act;
(ii)if so, what is the deemed date of that injury in accordance with ss 15 or 16 of the 1987 Act;
(iii)if so, which respondent is liable to compensate him regarding that injury in accordance with ss 15 or 16 of the 1987 Act, and
(iv)if so, what are his compensation entitlements.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to these proceedings understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the proceedings to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the proceedings.
The proceedings were initially listed for a preliminary conference before me on
3 October 2024. On that occasion, the issues for determination (see paragraph 9 above) were discussed and notations in that regard were made in the direction that I issued following the conference. Further:
(a) I amended the ARD by consent of all parties, to allow the applicant to claim weekly benefits compensation from 29 March 2021 (rather than from 15 August 2023), and
(b) I granted leave to both respondents to cross-examine the applicant at any arbitration hearing held in the proceedings.
The proceedings were then listed for conciliation/arbitration before me on 6 December 2024. On that occasion, the conciliation/arbitration was adjourned until 18 February 2025, and I issued a direction that inter alia noted:
(a)    neither of the respondents wished to cross-examine the applicant;
(b)    the issues for determination in the proceedings - in very similar terms to the terms outlined at paragraph 9 above, and
(c)    an agreement between the applicant and the second respondent as to:
(i)the applicant’s unadjusted pre-injury average weekly earnings (PIAWE) were $1,195.44, and
(ii)the applicant has had no current work capacity since 29 March 2021 (save for a current work capacity of $950 per week between 1 June 2022 and
15 June 2022).
The proceedings were then listed for conciliation/arbitration before me again on
18 February 2025. On that occasion, Mr Stephen Hickey of counsel appeared for the applicant, instructed by Mr Tancred; Ms Kavita Balendra of counsel appeared for the first respondent, instructed by Mr Khoshaba and Ms Dunkley, and Mr Bruce McManamey of counsel appeared for the second respondent, instructed by Mr Krieg as well as
Ms Samleerangkul and Ms Cook. The applicant was present (and was supported by his mother, Ms Lydia Smith); Ms Manoe was present on behalf of the insurer of the first respondent; Ms Hewins was present as a representative of the first respondent, and
Mr Rendon was present on behalf of the insurer of the second respondent.
A conciliated resolution in the proceedings was not reached on 18 February 2025, and the proceedings proceeded to an arbitration hearing. The applicant confirmed that he wished to include in the proceedings a claim for a ‘general’ order in accordance with s 60 of the 1987 Act, and this inclusion was not opposed by either respondent.
The parties also confirmed their agreement that any injury suffered by the applicant would be categorised as an occupational disease, or the aggravation thereof, for the purpose of the 1987 Act.
The agreement between the applicant and the second respondent regarding his PIAWE and his lack of current work capacity (see paragraph 12(c) above) was noted. In relation to the first respondent, I was provided with some agreed pay rates pursuant to the Crown Employees (Police Officers) Award. The applicant agreed that these rates were reflective of the applicant’s probable weekly earnings as well as his current weekly wage rate (in accordance with ss 40 and 42 respectively of the 1987 Act, as it applied to the applicant’s compensation entitlements against the first respondent). The first respondent agreed that the rates were reflective of the applicant’s probable weekly earnings, but that his current weekly wage rate should be calculated in accordance with his PIAWE as agreed between the second respondent and him. The difference between the parties regarding the rates was that the applicant argued that the rates applicable to a senior constable level 3, step 3 should apply to him, and the first respondent argued that the rates applicable to a probationary constable level 1 should apply to him. The rates provided were as follows:
(a) senior constable level 3, step 3:
(i)from 1 October 2020 – $1,902.36 per week;
(ii)from 1 October 2021 – $1,941.15 per week;
(iii)from 8 July 2022 – $1,980.75 per week;
(iv)from 7 July 2023 – $2,021.15 per week, and
(v)from 5 July 2024 – $2,302.14 per week, and
(b) probationary constable level 1:
(i)from 1 October 2020 – $1,440.33 per week:
(ii)from 1 October 2021 – $1,464.68 per week;
(iii)from 8 July 2022 – $1,501.75 per week;
(iv)from 7 July 2023 – $1,562.27 per week, and
(v)from 5 July 2024 – $1,624.75 per week.
It was then confirmed that no oral evidence would be given. The documentary evidence that was before me was then discussed, and admitted in accordance with 21 paragraph below. There was an objection by the first respondent to the admission of the documents (clinical records from David Churchward) contained in the second respondent’s application to lodge additional documents dated 18 February 2025. The first respondent however conceded that it could point to no prejudice to it if the documents were admitted, and I admitted the documents (pursuant to cl 67C of the Personal Injury Commission Rules 2021) as I considered that the admission of the documents was necessary to facilitate the just, quick and cost-effective resolution of the real issues in these proceedings, the documents being records of the applicant’s attendance upon a psychologist in 2015 and therefore highly relevant in relation to whether the applicant suffered any incapacity at that time (the first issue for determination by me – see paragraph 9(a) above).
Oral submissions were then made by the applicant, the first respondent, and the second respondent. I reserved my determination.
On 25 February 2025, the Commission then received an email from the second respondent’s solicitor (Mr Krieg). The email advised that the second respondent had agreed to make voluntary weekly benefits compensation payments to the applicant from 6 December 2024. It asked that the second respondent be given credit for these payments in my eventual determination.
The email also sought leave to file an amended wages schedule (incorporating calculations said to be agreed to by both the applicant and the second respondent) in relation to the applicant’s adjusted PIAWE since 29 March 2021. I therefore issued a direction on 27 February 2025 ordering that the amended wages schedule be lodged with the Commission by the second respondent (which occurred on 28 February 2025), and also ordering that the applicant email the Commission to confirm his acceptance of the calculations in the amended wages schedule. I ordered that the amended wages schedule would be admitted into evidence once this confirmation was received from the applicant. The Commission received the relevant confirmation from the applicant by email on 12 March 2025.

EVIDENCE

Documentary evidence

The following documents were therefore in evidence before me and considered in making this determination:
(a)    the ARD and attached documents;
(b)    the first respondent’s Reply (first Reply) and attached documents;
(c)    the first respondent’s Application to Lodge Additional Documents (first respondent’s first ALAD) dated 3 December 2024 and attached documents;

(d)    the first respondent’s Application to Lodge Additional Documents (first respondent’s second ALAD) dated 6 February 2025 and attached documents;
(e)    the second respondent’s Reply (second Reply) and attached documents;
(f)    the second respondent’s Application to Lodge Additional Documents (second respondent’s first ALAD) dated 2 December 2024 and attached documents;
(g)    the second respondent’s Application to Lodge Additional Documents (second respondent’s second ALAD) dated 13 December 2024 and attached documents;
(h)    the second respondent’s Application to Lodge Additional Documents (second respondent’s third ALAD) dated 18 February 2025 and attached documents, and

(i) the wages schedule lodged by the second respondent on 28 February 2025 - see paragraph 20 above.

Oral evidence

As previously noted, no oral evidence was given in the proceedings.

Applicant’s evidence

A statement signed by the applicant on 9 August 2021 is found at page 1 of the ARD.
The applicant grew up in Mudgee, and after finishing High School, completed a degree in justice studies at Charles Sturt University. He then attended the first respondent’s Academy at Goulburn for around six months. He says that the Academy did not prepare him for his exposure to trauma with the first respondent.
After finishing his training at the Academy, the first respondent posted him to Moree (part of the first respondent’s Barwon Local Area Command), despite it not being one of his preferences for his first posting. He had been provided with a briefing at the Academy, and he says:
“Part of the briefing was a talk by a local indigenous elder on the importance of sensitivity and respect towards the local indigenous population. When he had gone, we were told by Sargent Garry O’Dwyer ‘Just ignore all that’. It was my first introduction to the strange double standard in Barwon LAC. We had to be seen to be respecting the indigenous population, but everybody knew who caused the crime and who was trouble. I found this hard to come to terms with.”
The applicant says that he was exposed to traumatic incidents (the traumatic incidents) from “the very first day that I was in Moree”. He provides examples:
(a)    following a car crash, he tried to free a survivor from the wreckage, but the wreckage caught on fire, and he had to leave the survivor to burn to death - he was then tasked with clearing body parts from the wreckage site;
(b)    he attended a fatal overdose, where young children were present and crying – the children were in danger of treading on needles strewn on the floor;
(c)    he attended a fatal shooting on a property where the body “was a mess” - the perpetrator possessed guns, and a siege ensued;
(d)    he was required to do a body search on a badly decomposed corpse;
(e)    he attended many domestic violence incidents, including witnessing a perpetrator hitting his wife with a tyre lever;
(f)    he attended many child sexual abuse incidents – that he did not wish to describe further, and
(g)    he attended a domestic disturbance where he witnessed a man and woman heavily under the influence of drugs, the house in an appalling state of upkeep, and neglected children in the house with injuries.
The applicant says that he also had issues with one of his superior officers, who he thinks was called Borgauts, and who was “heavily critical, rude and obnoxious to us and to the public”. He provides an example:
“…one night he leapt out of the patrol car and started running. It’s accepted practice that if your partner starts a pursuit then you back them up and join the pursuit. So I set off running after him but I couldn’t identify the threat. I thought he must have seen something. Then he suddenly stopped and I ran past him. He called me back and said ‘Calm down, son. What’s the hurry?’. And started laughing. He’d done it on purpose. I never knew what he would do next.”
The applicant began to experience “struggles” which he shared with his work partner, but did not otherwise report them. He thought “my feelings were just normal and part of having to come to terms with policing”, and he thought “I could push through and get tougher”. He believed he would be considered weak if he reported his struggles. He was not provided with any counselling by the first respondent except for a telephone call from its counselling service after the incident described at paragraph 26(a) above.
He says that he was feeling increasingly anxious as a result of his exposure to the traumatic incidents and having to work with Borgauts, and “the last straw for me” occurred when he was reprimanded by Sargent Dunn for not suspending the license of a driver who had registered a mid-range alcohol breath test, when a more lenient penalty had been recommended to him by Senior Constable Finch, who had also advised him to be more flexible in his application of penalties.
He says that he resigned from his employment with the first respondent and left Moree immediately. In the same week, he applied for (and subsequently obtained) a position as a trainee in outdoor education with Anglican Youthworks. He says that employment was in a friendly and supportive environment, but involved “much less pay”.
He says that after he left his employment with the first respondent, he “was having issues with sleep and anxiety attacks brought on by triggers like sirens, smells etc”, and he had three sessions with a counsellor at North Nowra Counselling. He was given some strategies by the counsellor but did not have further treatment, and he explains:
“I just wanted to leave the police behind so I didn’t want to make a fuss about how I was feeling. I thought it would go away, which it mostly did working in the outdoors and in a supportive team.”
He worked for Australian Youthworks until he commenced his employment with the second respondent in December 2019. He applied for that employment as he had become engaged and “needed to find a good job to support my wife”. He advises however that:
“Almost immediately after starting work with the Sheriff’s office I began to re-experience traumatic memories and eventually I was having serious dissociative episodes every weekend as soon as I relaxed after a week’s work. There was nothing in particular about the work or duties that was hard or difficult and it paled into insignificance when compared to the Police and I think it was just being back in a uniform and dealing with the general public that I found difficult.”
The applicant tried to self-medicate with alcohol, but at the end of March 2021, he was admitted to the mental health unit at Liverpool Hospital. He was then admitted to St John of God Hospital for three weeks in April 2021, and to the mental health unit at Manning Base Hospital in June 2021.
He says that at the time of signing his 9 August 2021 statement, he was having weekly sessions with a psychologist and also seeing a psychiatrist. His symptoms included nightmares, sleep disturbance, anxiety attacks, and severe dissociative episodes. He had had to resign from his employment with the second respondent, and he struggled with depression. He had concentration issues and avoided social interaction.
The applicant also signed a second statement on 28 March 2024, which is found at page 7 of the ARD.
He says that since signing his 9 August 2021 statement, he has had significant difficulties coping with alcohol addiction, and has been admitted to several rehabilitation facilities including a live-in facility where he was present for about 12 months. His life was chaotic and he had no fixed residence. He had no capacity for employment.
He compares his employment with the first respondent and his employment with the second respondent, and he says:
“I am convinced in my own mind that my problems are due to my experiences with the Police. I observed and was exposed to horrendous trauma and I do not believe I was provided any support. My mental health required me to leave the Police and it took me a long time to recover until I felt well enough to go back to work with the Sheriffs. I coped initially with the work at the Sheriffs however it eventually got too much for me and I had to leave. There was no one event that caused me to leave…There was no comparison between my employment with the Sheriff’s Office and my service with the Police… If I was asked to compare the two I would say the work with the Sheriffs was easy and in fact quite cruisy. I was based in the Parramatta Justice precinct but I also had to work at other Court Houses. Most of my work was done in Parramatta. I spent about 50% of my time on the security scanners at the entry to the Court, about 30% of my time out in the field performing debt recovery work, and about 20% of my time sitting in Court. I would regularly see the Police Officers come and go through security and would observe Police Officers giving evidence in Court. I found this very triggering. It eventually got too much for me and I had to leave.”
The claim form that the applicant lodged with the first respondent is found at page 84 of the ARD. It was signed by him on 17 June 2021, and it attributes his psychological condition to “repeated truma [sic] due to exposure to stress, threat, dangerous policing situations, distressing murder, suicide and death situations, lack of support from the Chain of Command”, while performing general policing duties, and while attending motor vehicle accidents, murder scenes, domestic violence incidents, and suicides.
The claim form that the applicant lodged with the second respondent is found at page 375 of the ARD. It was signed by him on 8 November 2022, and it attributes his psychological condition to “dealing with argumentative and aggressive members of the public, being triggered by things such as observing guns, certain smells, having to conduct security checks, guarding Court Houses during protests”, while performing the general duties of a sheriff’s officer.
The ARD also (at page 166) contains a statement of Jamie-John Walker (Walker) signed on 22 May 2023, following an interview with an investigator retained by the second respondent. The applicant reported to him during the applicant’s employment with the second respondent, and he advises that the applicant “performed his duties satisfactorily”, and that the applicant “never had an issue with any direction or job I gave him to do”.
He estimates that the applicant was involved in five or six verbal or physical altercations with Court users (including a protest outside the Parramatta Children’s Court). He conducted a debrief with the applicant following each of these incidents, and found no issues with how the applicant handled each incident.
He also explains that there were changing requirements and screening mechanisms during the COVID-19 pandemic, which people entering court would have to comply with.
He says that the applicant “did comment to me briefly about his time as a Police Officer but he did not go into details but he commented about the positive feedback and support that we provided compared to when he worked at NSW Police”.
He says that he cannot recall the applicant showing symptoms of stress until just before he ceased working with the second respondent. He mentions the applicant discussing marital issues with him in this regard.
The ARD further (at page 171) contains a statement of Barry Wademan (Wademan) signed on 22 May 2023, following an interview with an investigator retained by the second respondent. He was the applicant’s superintendent, and he describes the applicant as a good officer although he only had contact with the applicant “on an as needs basis”. He could not recall any incidents when the applicant had had to physically restrict Court users. He explains that during the COVID-19 pandemic, there was much less interaction between sheriff’s officers and Court users.
He says that the applicant began to take unsupported days off work in the two to three months before the applicant stopped coming into work at all in March 2021. He had a short conversation with the applicant about these absences, but the applicant “was guarded with what he told me and he did not disclose exactly what was wrong other than he said he was having personal issues”. The applicant denied that there were “any issues or problems at work”.
In addition, the ARD contains various documents and emails relating to the cessation of the applicant’s employment with the second respondent, including the relevant separation form (at page 177) stating the applicant’s last day of service as being 7 May 2021. I will further detail relevant aspects of this material if specifically directed to those aspects during the parties’ submissions, but I do note of relevance that there is an email (at page 186) from the applicant to Wademan dated 25 April 2021, in which he resigns from his employment with the second respondent, advising that he had enjoyed the employment and that he had not made his decision lightly, but in consultation with his family and his doctors – he says that he now knows that “I am not capable of working within a law enforcement position at this time in my life”.
In terms of medical evidence, the applicant largely relies upon the opinions of Dr McClure. The doctor was qualified to provide opinions by the applicant’s solicitors, and he has written two reports, dated 14 June 2022 (found at page 206 of the ARD) and 23 April 2024 (found at page 222 of the ARD).
In the doctor’s 14 June 2022 report, he refers to the applicant’s 9 August 2021 statement and the traumatic incidents described in it, which occurred during the applicant’s employment with the first respondent. He notes that the applicant commenced that employment on 8 August 2013, and he takes the following additional history regarding the employment:
“Mr Smith was symptomatic within months of starting duty. He was drinking heavily and would often come to work hungover. He denies drinking on duty. He would drink two or three bottles of wine in a ‘session’, usually alone…He was ‘jumpy’ and vigilant. Intrusive memories were precipitated by particular sensory stimuli such as the smell of fuel (filling up his car) or the sight and smell of roast pork…His sleep was broken. There were nightmares ‘replaying’ fragments of incidents in which he had been involved. He would wake ‘full of adrenalin’. These nightmares decreased rapidly after he left the police force…After making the decision to resign, it took Mr Smith about a month to act. The ‘clincher’ was a reprimand from a senior officer which came when he started his shift clearly hungover. He was told that he ‘couldn’t keep doing this’.”
The doctor then refers to the applicant’s employment with Anglican Youthworks, and the applicant’s eventual decision to return to law enforcement (when the applicant began his employment with the second respondent) for financial reasons. He takes the following history regarding the applicant’s employment with the second respondent:
“Symptoms, however, resumed almost immediately. Mr Smith was back in uniform. He was often dealing with angry members of the public and there were occasional physical altercations…Watching ‘body cam’ footage of accident scenes was particularly difficult. It retriggered intrusive memories of the accident near Moree in which the two young men were critically injured, one of whom died at the scene…Symptoms rapidly recurred. Mr Smith began drinking heavily again. He drank daily, ‘sneaking it’. He hid his drinking from his wife. He was going to work hungover. He avoided driving and would travel by public transport…He started waking in the early hours. He was highly irritable. He would ‘go off … little things would become massive’. His marital relationship was breaking down…Over time Mr Smith’s condition worsened. He was using more sick leave. He was in fact reluctant to go to work.”

51.The doctor details the applicant’s treatment:
(a)    St John of God Hospital – admitted between 12 April 2021 and 30 April 2021;
(b)    considerable alcohol use after the applicant was discharged from St John of God Hospital – until the applicant became abstinent on 24 December 2021 following efforts from his family;
(c)    South Pacific Hospital - admitted for three weeks in February 2022;
(d)    ongoing fortnightly consultations with a psychologist, Natalie Single;
(e)    ongoing fortnightly consultations with a psychiatrist, Dr Duncan;
(f)    ongoing monthly consultations with a general practitioner, Dr Khin, and
(g)    ongoing medication – Fluoxetine, Mirtazapine, Prazosin, Quetiapine, and Naltrexone.

The doctor records the applicant’s symptoms as including:
(a)    nightmares – once per week on average;
(b)    intrusive episodes of the traumatic incidents – especially when refuelling, hearing sirens, or seeing police;
(c)    concentration and memory difficulties;
(d)    ruminating and experiencing negative cognitions;
(e)    having little contact with his friends;
(f)    avoiding social media entirely;
(g)    avoidance of almost all social settings - which induced anxiety;
(h)    “variable anxiety” when travelling, and
(i)    inability to focus sufficiently to read a book.
The doctor takes a history of no previous symptoms of a psychological nature prior to the applicant’s employment with the first respondent.
The doctor conducts a clinical examination, and diagnoses the applicant with chronic post-traumatic stress disorder (in partial remission), major depressive disorder (in remission), and alcohol dependence (in short-term remission). He opines that the applicant’s employment with the first respondent was a substantial contributing factor to his psychological injury, as:
“PTSD is by definition caused [emphasis in original] by exposure to stressor(s) which are of an extreme nature, often outside the usual range of human experience and such were part of Mr Smith’s everyday experience in the police.”
The doctor considers the applicant’s prognosis to be guarded, as although his symptoms had improved, he still had some symptoms as well as the loss of social and occupational functioning. He remained “vulnerable” and required ongoing psychological treatment as a result. He was not fit for work that might induce the recurrence of symptoms, but the doctor did anticipate that he would be able to increase his hours of work progressively, ultimately achieving full-time employment “in his chosen field”. It is important to note in this regard that the doctor consulted with the applicant while the applicant was attempting to return to the workforce as a cleaner – which (see paragraph 12(c)(ii) above) the parties have agreed occurred between 1 June 2022 and 15 June 2022.
In the doctor’s 23 April 2024 report, the doctor notes that the applicant is now unemployed and essentially homeless, living in his car but occasionally visiting his family home. He had been terminated from his job as a cleaner when he “bogged the company car” when drunk. He then spent most of 2023 as a participant in a substance rehabilitation program, following which he lived with his mother for a short period until he was told to leave when he started drinking alcohol again.
The doctor records the applicant’s current alcohol use as drinking “in three-day binges, drinking all day”. He sometimes drank as many as five bottles of wine in a day. His alcohol binges were associated with memory blackouts. He was “jittery” during his consultation with the doctor, as he had not drunk alcohol for three days.
The doctor records the applicant’s non-alcohol related symptoms as including:
(a)    worsening sleep disturbance – including waking disorientated;
(b)    nightmares (exclusively depicting the traumatic incidents) every second night;
(c)    dissociative flashbacks - triggered by various stimuli such as the smell of fuel or the cooking of meat, as well as the sounds of children crying or police sirens;
(d)    feeling “jumpy” and “on guard”;
(e)    ruminating;
(f)    avoidance of other people;
(g)    sometimes feeling depressed;
(h)    low energy levels;
(i)    suicidal ideation - although these thoughts and impulses had recently been controlled;
(j)    “jittery” while driving, and
(k)    socialising rarely.
The doctor notes that the applicant continues to consult with Dr Duncan every 1-2 months, but was not currently consulting with a psychologist. His current medications were Fluoxetine, Prazosin, and Quetiapine.
The doctor conducts a clinical examination, and reviews reports prepared by Drs Ahmed and Verma as well as the applicant’s 28 March 2024 statement. The doctor outlines his diagnosis:
“The primary diagnosis remains chronic Post-Traumatic Stress Disorder (PTSD). There is a co-morbid mood disorder, which I agree with my colleague Dr Verma is best characterised as a Persistent Depressive Disorder; and a co-morbid Alcohol Use Disorder/Alcohol Dependence…I have made these diagnoses as a result of considering Mr Smith’s ongoing condition and the definitions within the DSM-5 (APA 2013)…It is not in dispute that Mr Smith has a very serious psychiatric disorder which requires treatment and by which, at the moment, he is seriously disabled.”

In relation to causation, the doctor opines:
“Mr Smith’s psychiatric condition arose out of, and as a result [emphasis in original] of, his employment as a law enforcement officer…If your client had not been employed with the NSW Police Force, the fact is that he would not have developed PTSD nor the associated disorders. The employment with the Police was the substantial contributing factor to his psychiatric condition…When your client was employed by the Sherriff’s Office, he had a pre-existing condition which was largely asymptomatic. Employment with the Sherriff’s Office caused this to be aggravated in the form of a recurrence [emphasis in original] of symptoms of PTSD…Mr Smith left the employment of the Sherriff’s Office in April 2021. Traumatic exposure there was mild, if not minimal. Given this, and the time elapsed, it is more likely than not that any effects have now subsided…Asymptomatic or partially-remitted PTSD can be ‘triggered’ by almost any random event which arouses a traumatic memory. The episode then tends to become autonomous, particularly if – in this case – symptoms are masked by ‘self-medication’ with substances and/or by avoidant defences…Your client’s current psychiatric injury therefore is the product of his period of service with the NSW Police Force.”
The doctor opines the applicant’s prognosis to be poor. His psychological condition had not reached maximum medical improvement and required substantial ongoing treatment. He was “patently unfit for any employment whatsoever”.
The applicant also relies upon a report from his treating psychiatrist, Dr Duncan, dated
6 December 2021 (which is found at page 199 of the ARD). The report responds to a request from the applicant’s solicitors, and answers specific questions posed by them. The doctor advises that he had consulted with the applicant monthly since 23 June 2021. He had not however explored in detail the traumatic incidents that the applicant had been exposed to, but he had been provided with a copy of the applicant’s 9 August 2021 statement, the details in which, he advises, “align” with the details that he had procured through his consultations with the applicant and the applicant’s mother.
The doctor advises that the applicant meets the diagnostic criteria for diagnoses of both post-traumatic stress disorder and major depressive disorder. He outlines how the applicant’s psychological symptoms meet the relevant criteria, and he opines that:
“it is apparent that his experience of Post Traumatic Stress Disorder symptomatology meets criteria for delayed specification, that being full diagnostic criteria not met till at least six months after the trauma(s), although onset of symptoms may occur immediately. Upon review of his statement dated the 9^th August 2021, although there is upon reflection the presence of symptomatology [it] was not entirely apparent to Mr Smith until his time outside of the Police Force.”
The doctor sees a “clear correlation between Mr James Smith’s period of service within the New South Wales Police Force and the development of symptomatology both during and following the same”. Further, in relation to causation, the doctor opines:
“To date, Mr James Smith’s description of events that trigger the symptoms as described in Item 2 above [the symptoms that the doctor used in order to come to his diagnoses] relate to his period of service within the Police Force. To date he has not made mention of re-experiencing symptomatology related to his experiences either with Anglican Youth Works or with the Office of the Sheriffs. I would suggest however that this needs to be explored further to definitely answer this question…Given his description of symptoms along with the triggers that lead to hypervigilance and avoidance, and indeed re-experiencing and depressive symptomatology, these more strongly correlate at this time with Mr James Smith’s service with New South Wales Police.”
The doctor also relevantly explains:
“As you are aware, conditions particularly those similar to Post Traumatic Stress Disorder and Depression within the mental health frame are relapsing and remitting in nature, with precipitants coming potentially from many experiences within life. This indeed may explain why a significant relapse occurred during his experiences within the Office of the Sheriff, where although not specifically engaged with Police Service was exposed to close reminders of the same that led to subsequent expression of what was otherwise a contained illness. Although with appropriate treatment and management we would hope that the disruption that may be caused by these re-exposure periods would be minimised, the potential for hospitalisation or increase in psychiatric and psychological services will certainly be present. The necessity for this would be more likely in the first two to five years following initiation of treatment”.
The doctor considers the applicant to not have any capacity “at this time to attain or maintain longer term meaningful employment with any consistency”. He recommends ongoing treatment in the forms of medication and engaging with a psychologist.
The other medical evidence in the ARD includes:
(a)    a referral from Dr Khin to St John of God Hospital dated 1 April 2021 (at page 174) – for treatment of the applicant’s recently diagnosed post-traumatic stress disorder – the referral refers to the applicant’s work both as a sheriff and in the Police Force;
(b)    certificates of capacity issued by Dr Khin dated 2 June 2021 (at page 96) and 16 June 2021 (at page 93) - certifying the applicant with no current work capacity between 19 March 2021 and 17 July 2021 - and diagnosing the applicant with post-traumatic stress disorder and depression due to “multiple traumatic incidents/accidents throughout his entire duration of working in police force from August 2013 until November 2014”;
(c)    various records regarding the applicant’s treatment at St John of God Hospital in April 2021, and
(d)    various records regarding the applicant’s treatment at Manning Base Hospital in June 2021, including a discharge referral (at page 122), which relevantly records:
“Pt is former police officer/sheriff suffering from PTSD. Pt has been increasingly angry with violent desires and having dissociative episodes…Recent diagnosis of PTSD after experiencing symptoms of some time. 2 years in Police force and 18 months in Sheriffs department with multiple traumatic experiences.”
I will detail this evidence further if specifically directed to aspects of it during the parties’ submissions.

First respondent’s evidence

The first respondent’s solicitors engaged Dr Ahmed to consult with the applicant. His report dated 5 July 2022 is found at page 125 of the ARD.
The doctor takes a brief history of the traumatic events that the applicant was exposed to during the course of his employment with the first respondent, as well as altercations with co-workers during that employment. The doctor records that he “was already becoming anxious” and “ended up resigning thinking it was not for him”. The doctor then records that the applicant’s employment with Anglican Youthworks was “relatively relaxed, but he was having some difficulties, heightened anxiety, ruminating about past incidents and difficulties staying asleep”. He sought some counselling and it “became apparent that he was suffering symptoms of post-traumatic stress”, although he was able to “function for several years”.
The doctor then records that within a few months of the applicant commencing his employment with the second respondent, “despite [the employment] being much less threatening than his police job, he started re-experiencing past incidents especially fatalities”. He started drinking alcohol heavily, despite never having alcohol issues in the past.
The doctor refers to the applicant’s treatment with Dr Duncan as well as at St John of God Hospital and at South Pacific Hospital. The doctor notes:
(a)    the applicant is largely housebound, having withdrawn from social activities;
(b)    the applicant is no longer physically active;
(c)    the applicant struggles to read;
(d)    the applicant only drives short distances;
(e)    the applicant drinks “every few days sometimes with a binge pattern”;
(f)    the applicant had self-harm thoughts but they were not common anymore;
(g)    the applicant continued to experience nightmares and flashbacks;
(h)    on examination, the applicant’s affect was restricted in the anxious range;
(i)    on examination, the applicant was hypervigilant;
(j)    on examination, the applicant’s cognitions were slow at times;
(k)    the applicant had a history of panic attacks, and
(l)    the applicant had a history of sleep and appetite disturbance.
The doctor diagnoses the applicant with post-traumatic stress disorder, major depression, and alcohol misuse disorder. In relation to causation, the doctor opines in answer to a specific question:
“It is true he appeared to be able to function reasonably well for a period while working the outdoor related work. He also only worked in the police for barely a year. It is possible he had some pre-existing vulnerabilities or some personality vulnerabilities such as a rigid style which made it harder for him to adapt to the police…I note the incidents that led him to declining in the police where [sic] in fact interactions with co-workers and some disciplinary related performance measures, but according to his account, it appeared that he was becoming more anxious and irritable, and this progressed into the outdoor job. It is more the outdoor job was much less stressful. It was also picked up by his co-workers regarding his heightened sensitivities…Given his symptoms were especially triggered when he went back to Sheriff work this is evidence that it is likely that he did have underlying traumatic symptoms. For this reason, on balance, I do believe his time at the police is still the best explanation for his psychological decline…He did not have a past psychiatric history prior to the police.”
In relation to work capacity, the doctor opines that the applicant has partial work capacity up to 20 hours per week in “alternative duties”. In relation to further treatment, the doctor opines that the applicant requires ongoing consultations with a psychologist, ongoing consultations with a psychiatrist, and a detoxification program. In relation to the applicant’s prognosis, the doctor opines:
“His prognosis is uncertain. In the past he was able to function quite well when not being exposed to police related work. It is possible he will recover to be able to work in an alternative industry.”
Dr Ahmed has also provided a supplementary report dated 27 July 2022, which is found at page 134 of the ARD. The doctor was provided with a copy of Dr McClure’s 14 June 2022 report and a copy of the applicant’s 9 August 2021 statement, and he was asked specific questions. He advises that he broadly agrees with Dr McClure’s assessment, and of relevance to causation, he opines when questioned as to the contribution to the applicant’s psychological condition of his employment with the second respondent:
“His symptoms can be seen as an aggravation of a pre-existing disorder. It is likely he had the underlying vulnerability and this was significantly exacerbated when he attempted to work in the Sheriff’s Department.”
The first respondent also arranged for the applicant to be examined by Dr Anwar (see the letter from its solicitors to the applicant’s solicitors dated 17 September 2024 - at page 268 of the first respondent’s first ALAD). This examination was to occur on 1 October 2024, but I have no other evidence from either the applicant or the first respondent as to whether it proceeded.
The first respondent has otherwise put the following into evidence:
(a)    a Separation Checklist dated 22 September 2014 (at page 25 of the first Reply) - approved by Alexis Taylor from the first respondent – referring to a separation date of 26 September 2014 in relation to the applicant’s employment with the first respondent, and referring to the reason for the applicant’s resignation being job dissatisfaction;
(b)    clinical records of the applicant’s from Manning Base Hospital, St John of God Hospital, Liverpool Hospital, Anson Medical Centre, and Mind Spot - all found in the first respondent’s first ALAD, and
(c)    some records that the first respondent obtained from the applicant’s personnel file with the second respondent (from page 1 of the first respondent’s second ALAD).
I have considered this evidence, but (apart from as detailed below) in accordance with cl 67D(2) of the Personal Injury Commission Rules 2021, I will only be detailing it further if specifically directed to aspects of it during the parties’ submissions.

I do note of relevance:
(d)    a referral from Dr Khin to Natalie Single dated 19 May 2021 (at page 23 of the first respondent’s first ALAD) – requesting counselling for the applicant and referring to his previous work with both respondents;
(e)    an admission assessment recorded at St John of God Hospital on 12 April 2021 (at page 56 of the first respondent’s first ALAD) - advising that the applicant had been referred for treatment of his “PTSD related to police work and work in the court system”;
(f)    progress notes recorded at St John of God Hospital on 13 April 2021 (at page 69 of the first respondent’s first ALAD) - recording in relation to the applicant – “Said PTSD symptoms in context of 5-6 key traumas from approx. 2 years as police, & now 2 years as sheriff (current work)”;
(g)    records from Liverpool Hospital taken on 30 March 2021 (at page 113 of the first respondent’s first ALAD) - recording in relation to the applicant – “note PTSD from working in police force…works as a sheriff…able to hold down job…currently: ‘its been a long 4 days’…reports flat moods…currently denies any suicidal or homicidal ideation…states this has been ongoing for last 18 months”;
(h)    further records from Liverpool Hospital taken on 30 March 2021 (at page 130 of the first respondent’s first ALAD) - recording as the applicant’s history – “he was a police officer due to work related injuries>. He left the police force and he is now working as a Sheriff>> he said the job stressful as he deals with civil matters, he has been threatened, spat on and verbally abused”;
(i)    a report from Dr Khin to the first respondent’s insurer dated 30 August 2021 (at page 163 of the first respondent’s first ALAD) - in which the doctor records the applicant’s diagnosis as post-traumatic stress disorder and depression, and opines – “James has worked for the police force for nearly 12 months where he has witnessed and experienced multiple distressing and traumatic situations which led to recurrent nightmares, insomnia and low depressed mood…His job as a police officer and having to attend MVA and violent situiations [sic] were main contributing factors for his current mental illness…In my opinion, repeatedly witnessing and dealing with traumatic situations was the main cuase [sic] for his psychological injury…all the traumatic experiences occurred during his employment as a police officer”;
(j)    a history taken from the applicant by Natalie Single on 28 June 2021 in relation to his dissociative episodes (at page 179 of the first respondent’s first ALAD) - in which she records that after ceasing work with the first respondent, “[the applicant] had a few session with a counsellor – 3x then – thought all was well and didnt need to go back…Worked in recreation and was fine had no symptoms…Then got married and started working as a sheriff…Since sheriffs office triggered dissociative episodes”;
(k)    a history taken from the applicant by Natalie Single on 12 July 2021 (at page 192 of the first respondent’s first ALAD) that the applicant’s alcohol drinking “kicked off again from working as sherriff [sic]”;
(l)    a report from Natalie Single to Dr Khin dated 12 October 2021 (at page 207 of the first respondent’s first ALAD) - advising that she had consulted with the applicant on 10 occasions and that he had made progress and was responding “exceptionally well” to “EMDR working through some of his traumas while in the police force”;
(m)     a history taken from the applicant by Natalie Single on 6 July 2022 after his failed attempt to work as a cleaner in June 2022 (at page 216 of the first respondent’s first ALAD) - she notes – “got the job and was too much – Want to be normal and to try being normal – PTSD got in the way…I couldnt turn up for work – so focused on trauma – put so much pressure on myself to be independent…Soon as I put pressure on myself – everything fell apart – drank and drove the work car and got bogged and got the sack”;
(n)    a report from Natalie Single to Dr Khin dated 13 September 2022 (at page 220 of the first respondent’s first ALAD) - advising that the applicant had had a “major lapse in his drinking 2 weeks ago” – on DASS testing, his depression levels were mild, his anxiety levels were still moderate, and his stress levels were mild;
(o)    notes from Natalie Single regarding six consultations with the applicant between 11 June 2024 and 17 September 2024 – during which treatment was directed at his ongoing alcohol use disorder and its impact upon his family and his housing situation, and
(p)    a report from Natalie Single to Dr Khin dated 20 September 2024 (at page 239 of the first respondent’s first ALAD) - advising that the applicant (as a result of her six consultations with him between 11 June 2024 and 17 September 2024) “has learnt to better identify his antecedent triggers and reinforcers to his drinking” and is “learning strategies to manage his urges and difficult emotions”, but requires further sessions with her to assist him to learn “the principles and skills taught in therapy to maintain sobriety and prevent a relapse”.

Second respondent’s evidence

The second respondent relies to a considerable degree upon clinical records produced to the Commission by David Churchward. The records are found from page 1 of the second respondent’s third ALAD. The records demonstrate:
(a)    David Churchward was a registered psychologist whom the applicant was referred to by Dr Gong (general practitioner) on 13 August 2015 - he consulted with the applicant on five occasions, being 31 August 2015, 25 September 2015, 8 October 2015, 30 October 2015, and 20 November 2015;
(b)    on 31 August 2015, he records:
(i)the applicant experienced several traumatic incidents while employed by the first respondent, in relation to which the applicant had not previously undertaken counselling;
(ii)the applicant “can’t go an hour w/o thinking of incidents”;
(iii)the applicant works full-time in outdoor education and has a good group of friends, and
(iv)the applicant’s symptoms include poor concentration, sleep disturbance, nightmares, difficulty relaxing, hypervigilance, avoiding crowds, “tense”, inability to trust people, agitation, withdrawal, “unprocessed/fragmented/traumatic memory”, intrusive memories, emotional distancing, anger, and being “on guard”;
(c)    on 25 September 2015, 8 October 2015, and 30 October 2015, he discusses with the applicant narrative accounts prepared by the applicant recounting some of the traumatic incidents - he notes the applicant’s feelings of self blame, helplessness, anger, futility and distress - he also notes that after one of the traumatic incidents (probably the incident described by the applicant at paragraph 26(g) above), the applicant advised “boss wanted him to take extra week off”;
(d)    on 20 November 2015, he records:
(i)the applicant was “practising accepting and moving on”;
(ii)the applicant was going to rewrite his narrative accounts, focusing upon describing the traumatic incidents as tragic accidents, for which he was not responsible as he was “just doing [his] job”;
(iii)the applicant’s nightmares continued, but their frequency were reducing - he had however had to take a half day off work following a bad night, and
(iv)he was hoping to travel overseas during the following year;
(e)    the referral from Dr Gong records that the applicant consulted with Dr Gong on 13 August 2015 and provided the following information:
“4 month history agoraphobia, anxiety, insomnia, flashback…flashback of accident scene during police force…avoidance of crowd…worked as a police officer for 2 years and quit 1 year ago…No anhedonia…enjoying current job as an outdoor guide…no self harm/suicidal ideation…no hallucination…no drug or alcohol abuse…Impression: Possible PTSD”;
(f)    his report to Dr Gong dated 31 August 2015 refers to the applicant experiencing several traumatic incidents during his employment with the first respondent, and it describes the applicant’s current symptoms (similar to as described at paragraph 78(b)(iv) above – but also including anxiety and distress when confronted with reminders of the traumatic incidents, as well as a general distrust of people), and
(g)    a DASS test was administered by him on 30 August 2015 – the results were that the applicant had mild depression levels, extremely severe anxiety levels, and extremely severe stress levels.

The second respondent’s solicitors engaged Dr Verma to consult with the applicant. His report dated 31 March 2023 is found at page 145 of the ARD.
The doctor takes a brief history in relation to the traumatic incidents, following which, the applicant “developed nightmares, started isolating, and had difficulties with his work”. He became hypervigilant and ended up resigning from his employment with the first respondent. He then worked for five years in an outdoor recreation centre where his symptoms improved but did not resolve. He then commenced his employment with the second respondent, and the doctor notes:
“When he started at the sheriff’s office, being back in ‘blue uniform’ triggered his symptoms as he was constantly dealing with aggressive and confrontational people. He also had to watch videos involving accidents and dead bodies which he found distressing…He developed nightmares and his driving difficulties increased. He started isolating and started drinking more alcohol. He became irritable and would startle easily. At the end of March 2021, his wife rang an ambulance and he was taken to Liverpool Hospital Mental Health Unit after he locked himself in his room for a few days and was punching the walls.”
The applicant’s marriage broke down and he failed in his “restoration job” (in June 2022) due to his alcohol drinking. The doctor records:
“Mr Smith reported that alcohol became his biggest problem and his intake increased after he joined the sheriff’s office. His last drink was 172 days ago, before he started rehabilitation. At its worst, he would have 35 standard drinks (six bottles of wine) on the weekend and three bottles of wine every weekday. He drank at this level for 2½ years…He stated that alcohol helped him with the pressure he felt as a result of mental health symptoms.”
The doctor records the applicant’s current symptoms and treatment:
(a)    agitation at alcohol withdrawal;
(b)    a depressed mood on more days than not - triggered by sounds or smells experienced during his employment with the first respondent;
(c)    nightmares “1-2 times a week or fortnight”;
(d)    ruminations;
(e)    fear about potential alcohol use disorder relapse – the applicant’s thought content was pre-occupied with this fear during the doctor’s mental state examination of him;
(f)    panic attacks every few months;
(g)    consultations with a psychiatrist and an alcohol counsellor, and
(h)    medication – Naltrexone, Fluoxetine, Prazosin, Seroquel, and Mirtazapine.
The doctor then provides the following summary:
“Mr Smith is a 31-year-old gentleman who is currently in an alcohol rehabilitation facility at West Hoxton. He has been there for the last five months for management of his alcohol use disorder. This has occurred in the context of mental health symptoms which developed when he was a police officer at New South Wales Police and had exposure to trauma. Complete details of exposure to most of the major traumas are contained in his statement and he described some of the more disturbing ones to me. His symptoms of posttraumatic stress disorder (PTSD) appear to have commenced when he worked as a police officer and improved after he left New South Wales Police. However they were re-triggered by his experience in the sheriff’s office and have continued on. He also meets criteria for persistent depressive disorder and alcohol use disorder. Alcohol use disorder has developed as he has used alcohol to help manage his chronic negative affect/mood associated with his mental health symptoms.”
The doctor considers the applicant’s post-traumatic stress disorder as in partial remission, and his alcohol use disorder in early remission. The doctor considers the applicant’s depressive disorder as most likely a persistent depressive disorder.
In relation to causation, the doctor opines:
“Yes, I consider that witnessing traumas from the commencement of his employment with New South Wales Police resulted in posttraumatic stress disorder and subsequently persistent depressive disorder which did not resolve fully and which was exacerbated when he started working as a sheriff’s officer in 2019. Alcohol use disorder has developed in the context of his PTSD and persistent depressive disorder…I consider that the events from August 2013 to November 2014 with New South Wales Police Force and the circumstances of his employment with the Department of Communities and Justice are both causative of the worker’s PTSD. I consider that the main trigger was his work with New South Wales Police.”
The doctor then opines that the applicant’s employment with the second respondent was the main contributing factor to the exacerbation of the applicant’s psychological condition since 2019.
The doctor sees the applicant’s prognosis as guarded. He is currently unfit for any work and will be unfit for the next 10-12 months. His psychological condition has not reached maximum medical improvement.
Dr Verma has also provided a supplementary report dated 9 June 2023, which is found at page 157 of the ARD. The doctor was asked by the second respondent’s solicitors to clarify the nature of the applicant’s ongoing psychiatric incapacity, and he opines:
“Yes, I believe that Mr Smith’s present psychiatric incapacity and need for medical treatment following the events that occurred in his employment with the Department are worse because of the PTSD he suffered as a result of his employment with New South Wales Police Force …The reason for this is that his mental health symptoms commenced in the context of exposure to trauma at New South Wales Police and if it were not for this exposure he would not have developed PTSD. If he had not developed PTSD then he would not have developed persistent depressive disorder or an alcohol use disorder or needed treatment for the same…Therefore, had it not been for the original PTSD injury with New South Wales Police Force he would have much more capacity and would need less (if any) medical treatment in relation to the psychological injury…His experience in the Department of Communities and Justice in the Sheriff’s office was a re-triggering of symptoms rather than exposure to new traumas as such…In addition it should be noted that even after he resigned from the police force in September 2013 his symptoms improved but did not resolve meaning that they were likely to be triggered in the appropriate triggering environment such as which occurred in the sheriff’s office when he was dealing with aggressive people.”
Dr Verma has also provided a further supplementary report dated 29 November 2024, which is found at page 4 of the second respondent’s first ALAD. The doctor was provided by the second respondent’s solicitors with various clinical records of the applicant’s, as well as
Dr McClure’s 23 April 2024 report and the applicant’s 9 August 2021 and 28 March 2024 statements. The doctor was asked specific questions by those solicitors.
As to whether the applicant suffered “an incapacity for work at the time that he resigned from the NSW Police Force in 2014 such that he was unable to work on the open labour market as a police officer”, the doctor opines:
“Based on all the above information I consider that Mr Smith suffered an incapacity for work at the time that he resigned from New South Wales Police Force in 2014 such that he was unable to work on the open labour market as a police officer. At the time of leaving the police force, he had significant symptoms of posttraumatic stress disorder, which would have affected his ability to focus, concentrate, make decisions and problem solve, particularly in an operational policing situation such that he would either underreact or overreact in an operational policing situation. This would result in him not being able to ensure the safety of the public and property…He ended up resigning from the New South Wales Police in September 2013 [should read September 2014] because of his inability to work as a police officer and then he worked in an entirely different area, i.e., outdoor recreation where symptoms improved, but did not resolve fully.”
As to Dr McClure’s opinions, Dr Verma agreed with Dr McClure regarding diagnosis, causation, and prognosis. He also agreed that the applicant was unfit for employment currently, and went further in opining that the applicant’s future employment prospects were guarded due to “the chronicity, severity and persistence of symptoms despite psychiatric and psychological treatment”.
The second respondent’s first ALAD also contains (at page 1) a recent report from the applicant’s treating psychiatrist, Dr Duncan, dated 3 September 2024.
The report is addressed to Dr Khin – it provides the following recent history regarding the applicant’s psychological condition:
(a)    he had undergone five rehabilitation care admissions, the last of which had been a month prior to the doctor’s consultation with him;
(b)    he had been able to remain sober for four months – as a result, his mood, his sleeping patterns, and his appetite had all improved;
(c)    he was positive about his ongoing treatment with Natalie Single - see paragraphs 77(o) and (p) above;
(d)    his family had “allowed him to take charge of his care”;
(e)    he was receiving a disability support pension from Centrelink, and
(f)    his treatment also involved drug and alcohol services meetings, and taking medication (Fluoxetine, Acamprosate, Naltrexone, Quetiapine, Minipress, and Mirtazapine).
The doctor opines that the applicant’s post-traumatic stress disorder and his major depressive disorder are currently in partial remission, and that his alcohol use disorder is in early remission.
The second respondent has also put the following material in evidence:
(a) clinical records of the applicant’s from Manning Base Hospital, St John of God Hospital, Liverpool Hospital, and Mind Spot - I discussed these records and detailed relevant aspects of them at paragraph 77 above - in accordance with cl 67D(2) of the Personal Injury Commission Rules 2021, I will only detail further aspects of them if specifically directed to those aspects during the parties’ submissions, and
(b) clinical records of the applicant’s from North Nowra Medical Practice (from page 35 of the second respondent’s second ALAD) - these are the records of Dr Gong who referred the applicant to David Churchward on 13 August 2015 and the details in the records are consistent with the relevant referral letter discussed at paragraph 78(e) above – the records also indicate that at the time, the applicant was only drinking 1-2 drinks on 2-3 days per week.
Finally, the second respondent relies upon three employment contracts with Australian Youthworks which the applicant signed on 17 December 2014, 20 June 2016, and
18 December 2017 (found respectively in the second respondent’s second ALAD at pages 1, 11, and 22). Relevantly, the contracts provide:
(a)    the applicant’s employment commenced on 17 December 2014;
(b)    the applicant’s employment was conditional on him warranting that there were no physical or psychological limitations to his ability to fully perform his employment duties;
(c)    the applicant was initially employed as a permanent full-time trainee outdoor minister - he was then employed as a permanent full-time outdoor ministry leader by his second contract, and as a casual evening meal host by his third contract – no position descriptions in relation to any of these roles are in evidence;
(d)    the applicant’s commencing annual salary was $33,326.80 - his annual salary had then risen to $37,361.40 according to his second contract - and his third contract refers to his hourly rates of pay as ranging from $24.41 per hour to $34.18 per hour, and
(e)    the applicant agreed that he would not work while under the influence of alcohol.

Applicant’s submissions

The applicant’s oral submissions were recorded and form part of the Commission’s record, as do some brief written submissions that he also lodged with the Commission. I do not therefore intend to go through the submissions in detail.
The applicant refers to his 9 August 2021 statement, and emphasises:
(a)    he was already feeling anxious as a result of his exposure to the traumatic events prior to leaving the employ of the first respondent;
(b)    the reprimand that he received from Sargent Dunn was “the last straw”;
(c)    he nevertheless found alternative employment with Anglican Youthworks promptly, and
(d)    his work with Anglican Youthworks involved less pay but more support.
The applicant then refers to his treatment after August 2015 with Dr Gong and David Churchward. He submits that the end result of that treatment was that his symptoms were reduced and his mental health was improving. He submits that although he had symptoms, he did not have any incapacity until 29 March 2021. He refers to the evidence of Dr Gong and David Churchward as equivocal and not sufficient to lead to any inference of an incapacity, which would allow me to make a finding in that regard. The evidence was not sufficient to demonstrate that the applicant in 2015 had incapacity for his pre-injury duties with the first respondent. Just because the applicant earned less with Australian Youthworks than he did with the first respondent, does not of itself lead to a finding of incapacity. There was certainly no medical certification as to incapacity for work at that stage. The applicant submits:
“Until definitive diagnosis there was no scope for application of s 47 of the 1987 Act but from 29-3-2021 his condition was plainly clear as was his incapacity which was realized from that date. S 47 has application from 29-3-2021 and the medical opinion evidence confirms incapacity from that date.”
In relation to Dr Verma’s opinion (see paragraph 88 above) regarding the applicant’s incapacity when he left the employ of the first respondent, the applicant submits that the opinion has to be carefully scrutinised as one given in hindsight, and has to be considered in the light of the applicant’s almost immediate and continuous employment with Australian Youthworks following leaving the employ of the first respondent.
The applicant also refers to Dr Khin’s 1 April 2021 referral (see paragraph 68(a) above) which refers to the applicant’s post-traumatic stress disorder as having been only recently diagnosed.
The applicant concedes that if I did find that the applicant was incapacitated either when he left the employ of the first respondent, or when he seemed to develop symptoms in April 2015, or when he consulted with Dr Gong and David Churchward in August 2015, an injury would be “set in stone” and deemed to have occurred at the relevant time. In such circumstances, the applicant would need to deal with the respondent’s reliance upon ss 254 and 261 of the 1998 Act, and the applicant submits in this regard:
(a) any delay by the applicant had a reasonable cause as his post-traumatic stress disorder was not diagnosed until March 2021; as Dr Duncan confirms (see paragraph 64 above) the delayed onset of the applicant’s psychological symptoms; as he was “trying to get on” and thought that he would overcome his symptoms after leaving the employ of the first respondent, and as he indeed appeared to overcome his symptoms following the cessation of his treatment with David Churchward (see David Churchward’s recordings on 20 November 2015 – as referred to at paragraph 78(d) above), especially as he then was able to continue to work with Australian Youthworks;
(b) the applicant relies also upon s 261(6) of the 1998 Act to prove that he was not aware of his injury until March 2021 - until that time, he “was ignorant of the extent of incapacity that he was going to experience from the time of his hospital admissions and cessation of work with the second respondent”;
(c) the applicant also relies upon s 261(8) of the 1998 Act;
(d) the applicant alleges his injury to have resulted in serious and permanent disablement – he relies upon the opinions of Dr McClure (see paragraph 60 above) and Dr Verma (see paragraph 89 above) in this regard, and
(e) in relation to the special circumstances required by s 254(2) of the 1998 Act, the applicant specifically relies upon there being no prejudice to the respondent in any delay, as well as his reasonable cause for the delay.
However, if I did not find incapacity prior to 29 March 2021, the applicant submits that I would still find two injuries, both with deemed dates of 29 March 2021. He relies upon NSW Police Force v Kearns and Anor [2008] NSWWCCPD 29 (Kearns) and argues that:
(a) he sustained an injury (being an occupational disease) to which his employment with the first respondent was the main contributing factor in accordance with s 4(b)(i) of the 1987 Act - this is the opinion of Drs Duncan, McClure, and Verma – compensation will be payable by the first respondent in relation to the injury as (in accordance with s 15(1)(b) of the 1987 Act) it was the last employer to employ him in employment to the nature of which his disease was due, and
(b) “The medical evidence also supports (as does the common sense evaluation of the evidence) an aggravation or exacerbation of the Applicant’s psychological disease injury as a result of the exposure to trigger events whilst working with the Sheriff (R2). The work exposure to triggering events with R2 was not work of the nature of which the disease of gradual onset was due but was in my submission causative of aggravation and exacerbation of the already (Police caused) underlying injurious PTSD and Major Depression” - he especially refers to
Dr Verma’s opinion (see paragraphs 83-84 above) and submits that the statements of Walker and Wademan are consistent with the applicant being exposed to “triggers” during the course of his employment with the second respondent – as a result, he sustained an (aggravation) injury to which his employment with the second respondent was the main contributing factor in accordance with s 4(b)(ii) of the 1987 Act – compensation will be payable by the second respondent in relation to the injury as (in accordance with s 16(1)(b) of the 1987 Act) it was the employer to last employ him in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of his disease.
In relation to the applicant’s degree of incapacity since 29 March 2021, he submits that there is “no significant contest” in the evidence. He has been totally unfit for any work during that period, except for the two weeks in June 2022 when he worked for a cleaning company (which was a “short-term attempt at work that is futile in the context of all of the opinions”).
In relation to apportionment of liability between the respondents in accordance with s 22 of the 1987 Act (should I find two injuries), the applicant refers me to the commonsense approach that I need to adopt in accordance with Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716 (Baltica) and submits that it would be appropriate to apportionment 90% of liability to the first respondent.
Finally, the applicant requests that I determine any compensation entitlements of his that would be payable in accordance with s 38 of the 1987 Act despite no assessment by either respondent having been made regarding his current work capacity. When I referred him to the limitation that I saw in this regard in accordance with Ferro v Mercon Group Pty Ltd [2023] NSWPICPD 4 (Ferro), he referred me to a decision of Member McDonald in Chea v Woolworths Group Limited [2022] NSWPIC 26 (Chea).

First respondent’s submissions

The first respondent’s oral submissions were also recorded and form part of the Commission’s record, as do some brief written submissions that it also lodged with the Commission. I do not therefore intend to go through the submissions in detail.

The first respondent does not dispute that the applicant was exposed to traumatic events whilst working with it. It emphasises however that he voluntarily resigned from his employment with it, and that at the time there was no indication that he suffered any incapacity as a result of a psychological condition. There is medical evidence of psychological symptoms in August 2015, but then no other evidence of symptoms until March 2021. David Churchward’s clinical records regarding his treatment of the applicant in 2015 provide no evidence of incapacity for work at that stage.

I am satisfied in this regard that apart from that period of two weeks in June 2022, the applicant had no current work capacity between 29 March 2021 and 24 September 2023. This is the overwhelming conclusion from the medical evidence.
Dr McClure in his 14 June 2022 report details the applicant’s treatment (including periods of hospitalisation) and current symptoms from his psychological injuries. The doctor opines that the applicant’s prognosis was guarded and that he was not fit for work that might induce the recurrence of symptoms. At the time, the applicant was attempting to return to work as a cleaner, and the doctor hoped that the return to work would continue. However, in the doctor’s 23 April 2024 report, the doctor notes that the applicant’s alcohol use prevented that return to work from continuing. The doctor diagnoses the applicant with post-traumatic stress disorder, a persistent depressive disorder, and an alcohol use disorder, and the doctor considers him to be “seriously disabled”. The doctor opines that he was “patently unfit for any employment whatsoever”.
Dr Verma in his 31 March 2023 report also opines that the applicant’s prognosis was guarded, and further opines that he was currently unfit for any work and would remain unfit for at least the next 10-12 months. Then, in the doctor’s 29 November 2024 report, the doctor describes the applicant’s future employment prospects as guarded due to the severity and persistence of his psychological symptoms.
Dr Duncan in his 6 December 2021 report considers the applicant then to have no capacity for work. In the doctor’s later 3 September 2024 report, he does not specifically provide an opinion regarding employment capacity, but details symptoms suggesting a lack of capacity, including the fact that the applicant had undergone five rehabilitation care admissions (the last of which had only finished a month previously).
Natalie Single in her 6 July 2022 clinical records references the applicant’s attempt to return to work in June 2022 as “too much” and “everything fell apart”.
The applicant’s statement evidence is also suggestive of a lack of current work capacity between 29 March 2021 and 24 September 2023. His symptoms and treatment (including hospitalisations) described in his 9 August 2021 statement and referred to at paragraphs 33-34 above, are suggestive of a total incapacity for work. He then explains in his
28 March 2024 statement as to his significant difficulties coping with alcohol addiction since his earlier statement, including his admissions to rehabilitation facilities (one admission lasting 12 months). He refers to his life as chaotic and that he has no capacity for employment.
The only real evidence suggesting that the applicant has had some capacity for work is
Dr Ahmed’s report dated 5 July 2022, which suggests that he was fit for up to 20 hours work per week in “alternative duties”. In the context of the number of competing medical opinions discussed above as well as the fact that Dr Ahmed’s report is dated just subsequent to the applicant’s failed attempt to return to work in June 2022, I prefer the competing medical opinions to Dr Ahmed’s. Apart from the period between 1 June 2022 and 15 June 2022, I find the applicant to have had no current work capacity between 29 March 2021 and
24 September 2023.
The applicant’s agreed PIAWE requires indexing in accordance with part 3 division 6A of the 1987 Act. I calculate the indexed PIAWE to be:
(a)    from 1 April 2021 – $1,230;
(b)    from 1 October 2021 – $1,240;
(c)    from 1 April 2022 – $1,260;
(d)    from 1 October 2022 – $1,300, and
(e)    from 1 April 2023 – $1,350.

These calculations are consistent with the calculations in the amended wages schedule lodged by the second respondent on 28 February 2025 (see paragraph 20 above).

The applicant will be entitled to an award pursuant to s 36(1) of the 1987 Act as follows:
(a) $1,135.67 per week between 29 March 2021 and 31 March 2021, and
(b) $1,168.50 per week between 1 April 2021 and 27 June 2021.
The applicant will be entitled to an award pursuant to s 37(1) of the 1987 Act as follows:
(a)    $984 per week between 28 June 2021 and 30 September 2021;
(b)    $992 per week between 1 October 2021 and 31 March 2022;
(c)    $1,008 per week between 1 April 2022 and 31 May 2022;
(d)    $1,008 per week between 16 June 2022 and 30 September 2022;
(e)    $1,040 per week between 1 October 2022 and 31 March 2023, and
(f)    $1,080 per week between 1 April 2023 and 24 September 2023.

Pursuant to the agreement (see paragraph 12(c)(ii) above) regarding the applicant’s current work capacity when he attempted his return to work in June 2022, the applicant will be entitled to an award pursuant to s 37(2) of the 1987 Act as follows:
(a) $247 per week between 1 June 2022 and 15 June 2022.

Apportionment

Section 22(1) of the 1987 Act reads as follows:
“If--
(a) the death or incapacity of a worker, or
(b) a permanent impairment suffered by a worker as referred to in Division 4 of Part 3, or
(c) a liability under Division 3 of Part 3 to a worker,
results from more than one injury to the worker, liability to pay compensation under this Act is to be apportioned in such manner as the Commission determines.
Relevant parts of s 22A of the 1987 Act read as follows:
“(1) The apportionment of liability under section 22 is--
(a) in the case of the apportionment of liability between employers--to be on the basis of the relative length of the worker's employment with each employer concerned (not including any period of employment after the last relevant injury was received), or on such other basis as the Commission considers just and equitable in the special circumstances of the case…
(4) When liability to pay compensation is apportioned under section 22 between 2 or more persons, the Commission may order that the compensation is payable to the worker by one of those persons and that the other persons are to pay (by way of contribution) their apportioned share of that compensation to that person.
(5) The person ordered under subsection (4) to pay compensation to the worker is to be--
(a) in the case of apportionment between employers--the employer who most recently employed the worker, or such other of the employers as the Commission considers reasonable in the special circumstances of the case”.
When considering ss 22 and 22A of the 1987 Act, Clarke JA in Baltica determined (at 727A) that an enquiry was needed as to whether the relevant worker’s incapacity was so connected with a number of injuries that, “as a matter of ordinary common sense and experience, it should be regarded as having resulted partly from all or any of them”. In those circumstances, apportionment of liability needed to be determined. His Honour went on to state (at 730G-731B):
“I do not think there is any impediment to my acceptance of the view that the common law test applies and that the relevant enquiry directs attention to whether the injury caused or materially contributed to the incapacity. Accordingly, the approach evident in Morris v George, which reflected the restrictions imposed by the search for a proximate cause or direct cause, should, in my view, no longer be regarded as sound.”
Snell ADP considered Baltica in BHP Billiton Ltd & Anor v Bourke & Ors [2009] NSWWCCPD 117 (BHP), and after determining that more than one injury led to the worker’s incapacity in that case, stated (at [90-91]):
“Cases involving multiple employers, where apportionment is sought, will frequently involve a series of injuries, to the same body part. It will often be difficult to disentangle the relative contribution of each such employment, to a worker’s ultimate incapacity. The ‘time’ formula in section 22A(1)(a) provides a convenient method of apportionment in such circumstances.
In the current matter, it has been found the injury in 1996 resulted in symptoms in the left shoulder, and the injury in 2005 resulted in symptoms in the lower back and right shoulder. On the findings, there were two frank incidents, each causing different symptoms. As a result, Mr Bourke has an incapacity for work. In my view the fairer approach to apportionment is to approach it on the basis of what is just and equitable in the circumstances of the case. In HIH Workers Compensation (NSW) Pty Ltd v GIO General Ltd (2000) 21 NSWCCR 108 Campbell CJ approached the issue of apportionment by looking to the extent to which the different injuries had contributed to the ultimate outcome. Such an approach in my view is appropriate in the current case.”
And (at [104-105]):
“Applying the passage from Baltica quoted at [72] above, it is not appropriate to look to the proximate cause of the incapacity. The enquiry is a wider one. The fact that Mr Bourke was able to work on for a time, with symptoms in his left shoulder, is not inconsistent with the conclusion, based on the evidence overall, that incapacity results from both the left shoulder injury in 1996, and the injury to the lower back and right shoulder in 2005.
In looking at the extent to which the different injuries contributed to the ultimate outcome (the partial incapacity), the contribution of the last injury is in my view greater than that of the left shoulder injury.”
In accordance with Baltica, I find upon the medical evidence that the applicant’s incapacity between 29 March 2021 and 24 September 2023 was materially contributed to by both injuries which I have found against the first respondent and the second respondent.
I have already discussed in some depth (see paragraph 149 above) the evidence supporting my finding that the applicant’s employment with the second respondent aggravated his psychological condition. The result of the aggravation was to transform him from a person with a significant capacity for work (being his work with Australian Youthworks) to a person whom I have found to have had (except for during a period of two weeks) no current work capacity between 29 March 2021 and 24 September 2023. This is more than the necessary material contribution to incapacity, in accordance with Baltica.
On the other hand, the overwhelming medical evidence is that the predominant cause (again more than the necessary material contribution in accordance with Baltica) of the applicant’s incapacity since 29 March 2021 was his employment with the first respondent. Dr McClure (see paragraph 61 above) opines that if the applicant had not been employed by the first respondent, he would not have even developed his psychological condition. Dr Duncan (see paragraph 65 above) notes that the events which trigger the applicant’s psychological symptoms relate to his period of service with the first respondent. Dr Ahmed (see paragraph 73 above) opines that the applicant’s employment with the first respondent “is still the best explanation for his psychological decline”. Dr Khin (see paragraph 77(i) above) considers that the applicant’s employment with the first respondent was the main contributing factor to his psychological condition and the main cause of his psychological injury. Dr Verma (see paragraph 84 above) opines that although the applicant’s employments with both respondents were causative of his post-traumatic stress disorder, his employment with the first respondent was the “main trigger”. Dr Verma (see paragraph 86 above) later opines that had it not been for the applicant’s injury with the first respondent, “he would have much more capacity and would need less (if any) medical treatment” following his aggravation injury with the second respondent.
Having regard to BHP, in looking at the extent to which the applicant’s two injuries contributed to the ‘ultimate outcome’ (his lack of current work capacity since 29 March 2021), the contribution of the injury with the first respondent is in my view greater, and I believe this view is supported by the overwhelming medical evidence discussed above.
Both the applicant and the second respondent submit that 90% of liability should be apportioned to the first respondent. I do not however believe that such an apportionment is appropriate, even having regard to the greater contribution to the applicant’s incapacity that has been played by his injury with the first respondent. In this respect, I again refer to the applicant’s significant capacity for work for around five years following his employment with the first respondent, before his condition was so aggravated (during his employment with the second respondent) that he has had no current work capacity since 29 March 2021 (at least up to 24 September 2023), except for during a period of two weeks. I also refer to the guidance provided in s 22A of the 1987 Act, requiring apportionment to be on the basis of the relative length of the applicant’s employment with each respondent, or on such other basis as I believe to be just and equitable. The length of the applicant’s employment is therefore a significant factor to be taken into account, and it would appear in this regard that the applicant was employed with the first respondent for just under 14 months, and with the second respondent for around 16 months – similar lengths of employment.
The first respondent submits that, particularly with regard to the relatively similar lengths of employment, liability of not more than 50% should be apportioned to it. I do not however believe that such an apportionment is appropriate having regard to the overwhelming medical evidence as to its greater role in the causation of the applicant’s lack of current work capacity since 29 March 2021.
I propose to apportion liability according to what I consider to be just and equitable in the circumstances. This is allowed in accordance with s 22A of the 1987 Act and was the approach adopted in BHP. Having regard to the contributions of the two injuries which I have found to the applicant’s lack of current work capacity since 29 March 2021, I consider it to be just and equitable that two-thirds of liability in this regard be apportioned to the first respondent.
In accordance with ss 22A(4) and 22A(5) of the 1987 Act, the applicant’s compensation entitlements (calculated in accordance with paragraphs 170-172 above), will be ordered to be paid by the second respondent, and the first respondent will be ordered to pay its apportioned share of liability for those compensation entitlements to the second respondent.

Delay

Having regard to my finding of injury against the first respondent with a deemed date of
13 August 2015, that respondent then relies upon ss 254 and 261 of the 1998 Act to attempt to defeat any compensation claim by the applicant regarding the injury, due to his delay in claiming compensation from it, which he first claimed from it by way of a claim form (see paragraph 38 above) signed on 17 June 2021.
Section 254 of the 1998 Act reads as follows:
“(1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3) Each of the following constitutes special circumstances--
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act,
(e) the employer has contravened section 231,
(f) the injury has been treated in a first aid room at the place of work,
(g) if the employer is the owner of a mine--the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011.”
I propose to find that special circumstances exist to justify the applicant’s failure to give his notice of injury as required by s 254 of the 1998 Act. I believe that he had reasonable cause in this regard, in accordance with s 254(3)(b) of the 1998 Act, which I will detail below. I also believe however that the first respondent has not been prejudiced by his failure, in accordance with s 254(3)(a) of the 1998 Act.
The first respondent made no submissions regarding any prejudice suffered by it in this regard, and I would have expected there to be evidence from it had the applicant’s delay led to it being unable to properly investigate his compensation claim.
In any case, the first respondent had access to all relevant medical records of the applicant’s, including the historical records from North Nowra Medical Practice and David Churchward (which, according to the evidence, were the only treating practitioners of the applicant’s in relation to his psychological symptoms between the date when he left the employ of the first respondent and the date when he commenced his employment with the second respondent).
Relevant parts of s 261 of the 1998 Act reads as follows:
“(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death…
(4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either--
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.”
I propose to find that the applicant can rely upon s 261(4) of the 1998 Act to allow his compensation claim against the first respondent to proceed. In this regard, I believe that he had reasonable cause for his delay in lodging his compensation claim and I accept that his psychological injury has resulted in his serious and permanent disablement. I accept his submissions at paragraph 100 above.
In Albury Real Estate Pty Ltd v Rouse [2006] NSWCCPD 139 (Rouse), Roche ADP (at [35]) considered what would be considered to be a reasonable cause in accordance with s 261(4) of the 1998 Act:
“In my view ‘other reasonable cause’ can be any other event, situation or circumstance that resulted in a claim not being made within six months of the date of injury. I agree with the comment by C P Mills that it is the ‘mixture of facts, circumstances and motive which constitute the explanation of the omission’ that must be reasonable. If the explanation is ‘reasonable’ and if the failure to claim within six months was occasioned by that ‘cause’, then the subsection has been satisfied.”
The applicant’s reason for not claiming compensation from the first respondent within six months of the deemed date of injury (13 August 2015) which I have found, is that he “wanted to leave the police behind”. He had obtained alternative employment with Australian Youthworks in what he describes as a friendly and supportive environment and he says that his symptoms mostly went away while he was working with it outdoors and in that supportive team – see paragraphs 30-31 above.
In relation to his psychological symptoms in 2014 and 2015, he thought he could “push through and get tougher” (see paragraph 28 above) and that “it would go away” (see paragraph 31 above). He did not initially have any psychological treatment. Then, after he had consulted with David Churchward on five occasions in late 2015, a positive prognosis was recorded by the psychologist at the last of these consultations on 20 November 2015 (see paragraph 78(d) above).

In all the circumstances, the applicant’s motive in not lodging a compensation claim within six months of 13 August 2015, seems to be reasonable to me. He did not require any medical treatment after 20 November 2015 until 29 March 2021, and although his employment in this period earned him less than his employment with the first respondent, he clearly enjoyed it and found it rewarding. It was full-time employment. He worked with Australian Youthworks for around five years. He was trying to move on from this employment with the first respondent, and he seemed to be succeeding with this move until he began his employment with the second respondent. It was reasonable in the circumstances for him to avoid claiming compensation from the first respondent while any ongoing psychological symptoms of his were manageable.
In relation to the requirement under s 261(4)(b) of the 1998 Act for the applicant’s injury to result in his serious and permanent disablement, I have had regard to Gregson v L & MR Dimasi Pty Ltd [2000] NSWCC 47 (Gregson) in which Burke CCJ referred to Broken Hill Proprietary Company Ltd v Kunha (1992) 8 NSWCCR 401 (Kunha) and stated (at [76-78]):
“In that matter [Kunha] Cripps JA at 405 - 406 distinguished Wicks v Union Steamship Co of New Zealand [1933] HCA 58; (1933) 50 CLR 328 and Peters Ice Cream Pty Ltd v Fenney [1970] 3 NSWR 125 which dealt with the expression ‘total and permanent disablement’—'serious’ was far from synonymous with ‘total’. The frame of reference in which to adjudge the question of whether there was serious and permanent disablement was in relation to ability to work. Mahoney JA in a terse judgment at 402 had noted:
Mr Timbs QC ... sought at length to establish that ... ‘serious and permanent disablement’ connotes disablement for work generally and not merely for the work or the kind of work done by the worker at the time of injury. I do not accept that that is the meaning of the phrase. No doubt the word ‘disablement’ primarily refers to disablement in respect of capacity to perform work. But provided the disablement or interference with capacity is ‘serious’, the provision may be satisfied notwithstanding that other work may be undertaken and even undertaken more remuneratively.
Kuhna was a matter in which the worker, a miner, suffered a suggested 30 per cent loss of use of the right foot, could no longer work underground and was at the time of trial engaged in clerical type work with the employer with no economic loss. The sole claim litigated was in respect of about a 10-week period of total incapacity immediately following injury. The evidence was sparse on this particular matter being largely devoted to the issue of serious and wilful misconduct. The trial Judge had regarded the injury as serious and as undoubtedly impairing the worker's ability to perform mining work.
In this matter [Gregson] the question becomes whether Mr Gregson suffers a serious and permanent disablement. Does he have a disability, is it serious, is it permanent, does it impinge adversely upon his capacity to work? If all questions were answered in the affirmative then he would satisfy that requirement. The basic question then presenting is the degree of the applicant's incapacity and losses before a considered answer to those previous questions is available.”
Kunha and Gregson were both applied by Roche DP in Griffin v Qantas Airways Ltd [2010] NSWWCCPD 22 (Griffin) and he reached the following conclusion (at [236-237]):
“I considered the medical evidence earlier in this decision and will not repeat that analysis. I have found that Mr Griffin suffered an injury in the nature of a permanent aggravation, acceleration and exacerbation of the disease of obsessive compulsive disorder and the anxiety spectrum symptoms that go with that disorder. The question is whether that injury is an injury that has resulted in serious and permanent disablement of Mr Griffin. His injury has increased the severity of his condition and made it chronic. The worsening of his condition, caused by the fact that he continued to fly until November 1981, caused his symptoms to become increasingly entrenched and pervasive and generally worsened his obsessive compulsive disorder (Dr Phillips report 21 August 2009).
Until his injury, Mr Griffin had been a successful pilot with other business and recreational interests. Since ceasing work with Qantas, he has been unable to work as a pilot and his business wound down and ceased. Every attempt to engage in alternative pursuits has failed and his life never returned to normal. Mr Griffin’s evidence of his subsequent attempts to continue flying comfortably satisfy me that he was unfit to work as a pilot from 29 August 1979 or, in the alternative, from November 1981. This evidence is consistent with Dr Phillips’ conclusion, which I accept, that Mr Griffin was not suitable to continue his career as a pilot and was “substantially incapacitated for employment following the time of his resignation from Qantas and he remains incapacitated to undertake employment in the competitive open workforce at the present time” (Dr Phillips report 21 August 2009). In these circumstances, I have no hesitation in finding that Mr Griffin’s injury was serious and that it resulted in permanent disablement that prevented him from continuing in his usual occupation as a pilot and from engaging in higher-level technical work.”
I similarly have no hesitation in finding that the applicant’s psychological condition is a serious and permanent disablement. It has led to him having no current work capacity (save for during a two-week period) for a number of years, multiple hospital and rehabilitation facility admissions, and poor or uncertain prognoses being opined to by Drs McClure, Ahmed and Verma. His disablement (or incapacity according to Mahoney JA in Kunha) is certainly serious. He is currently “seriously disabled” and “patently unfit for any employment whatsoever” according to Dr McClure (see paragraphs 60 and 62 above), and his current symptoms are chronic, severe and persistent according to Dr Verma (see paragraph 89 above).
His disablement is also permanent, at least in the sense that he is permanently unfit for any policing or law enforcement work. While that proposition seems to be self-evident following the significant aggravation of his psychological condition while employed by the second respondent, it is also specifically endorsed:
(a)    by Dr McClure (see paragraph 55 above) stating that he was not fit for any work that “might induce the recurrence of symptoms”;
(b)    by Dr Duncan (see paragraph 67 above) stating he would be unable to maintain “longer term meaningful employment with any consistency”;
(c)    by Dr Ahmed (see paragraph 74 above) opining that while the applicant’s prognosis was uncertain, it was possible that he would recover to enable him to work in an alternative industry [my emphasis], and
(d)    by Dr Verma’s comments at paragraph 88 above regarding the applicant’s inability to work on the open labour market as a police officer.
While I have found that the applicant is not precluded by ss 254 and 261 of the 1998 Act from claiming compensation from the first respondent, I also accept the second respondent’s submissions (see paragraph 120 above) regarding the lack of the necessity for that finding in the context of the apportionment of liability that I have made pursuant to s 22 of the 1987 Act.
In Demolon, the worker suffered an injury in 1985 and an injury in 1989. Between the two injuries, the 1987 Act came into force, prompting the employer at the time of the first injury to argue that it could only be ordered to pay its apportioned percent of its “separate liability to the worker pursuant to the provisions of the 1926 Act”. Clarke JA (with whom Priestley JA and Hunter AJA agreed) stated:
“Having determined the appropriate amounts of compensation for which the
second employer was liable to pay the worker the trial judge set about the task
of apportioning that liability. Although the word ‘apportionment’ may not be
completely accurate to describe the task which the legislation requires the judge
to undertake, the statutory provision required the trial judge to determine what
proportion of that liability should be attributed to the first employer. It would, no
doubt, have been more simple if the Legislature had spoken of ‘contribution’ but
reference to s22A(4) (which was introduced in September 1995), in which the
word ‘contribution’ is used, indicates that what the trial judge was required to do
was to determine what contribution should be made by the first employer in
respect of the liability found against the second employer. In these circumstances
there is no basis upon which a judge could pay regard to some other liability such
as that which would have arisen if the only injury had been the one which
occurred prior to the coming into force of the Act.
I recognise that the result of this construction of the Act may be that the first
employer may incur a greater pecuniary liability than if the compensation had
been assessed under the 1926 Act. But that result seems to me to flow naturally
from the wording and scheme of the Act.”
In my opinion, the effect of s 22A(4) of the 1987 Act and Demolon is that once I have determined the compensation to be paid by the second respondent to the applicant, I am then required to determine the contribution which should be paid by the first respondent to the second respondent in respect of the second respondent’s liability. There is no basis for me to have regard to any separate liability of the first respondent’s in this regard (had the applicant only suffered one injury on 13 August 2015), by reference to either:
(a) the fact that the 2012 amendments to the 1987 Act do not apply to police officers, such that how their weekly benefits compensation entitlements are calculated (by reference to probable weekly earnings as well as current weekly wage rates – see paragraph 16 above) is different to how those entitlements are otherwise calculated under the 1987 Act, and
(b) the proposition that any separate liability of the first respondent may be affected by ss 254 and 261 of the 1998 Act.
I therefore determine that ss 254 and 261 of the 1998 Act do not prevent me from making the apportionment findings and orders referred to at paragraphs 183-184 above.

Costs

I have found two injuries and apportioned liability between the respondents. The first respondent therefore agrees (see paragraph 127 above) that the applicant is entitled to a costs order against it.
A complexity uplift in relation to this costs order is sought by the applicant in accordance with table 4 item 4 to schedule 6 of the Workers Compensation Regulation 2016. I grant that uplift and determine it to be 30% having regard to:
(a)    the variety of legal issues needing to be addressed in these proceedings;
(b)    the extent of the applicant’s clinical records which needed to be reviewed;
(c)    the complexity of the medical opinions regarding causation and incapacity which needed to be obtained;
(d)    the fact that the proceedings were listed for a lengthy preliminary conference on
3 October 2024, as well as a conciliation/arbitration on 6 December 2024 and a further conciliation/arbitration on 18 February 2025, and
(e)    the fact that I requested brief written submissions prior to the conciliation/arbitration on 18 February 2025.
Having regard to my finding of two injuries and the need to apportion liability between the respondents, the second respondent (see paragraph 127 above) also requests a costs order in its favour against the first respondent. I do not however intend to grant such an order.
The awarding of costs is a discretionary matter for the Commission in accordance with s 341 of the 1998 Act (as it applies to the first respondent). The general rule however is that ‘costs follow the event’, and should be awarded in favour of successful litigants, subject to limitations in the 1987 Act regarding the awarding of costs against unsuccessful workers.
In Oshlack v Richmond River Council [1998] HCA 11 (Oshlack), McHugh J stated (at [67]):
“The expression the ‘usual order as to costs’ embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.”
In Commonwealth of Australia v Gretton [2008] NSWCA 117 (Gretton), Hodgson JA stated (at [121]):
“In my opinion, underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was the defendant’s responsibility because the plaintiff was caused to incur costs by the defendant’s failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if a defendant wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled”.
The second respondent only commenced to make voluntary weekly benefits compensation payments to the applicant after the conciliation/arbitration in the proceedings on
18 February 2025 - see paragraph 19 above. Its prior position in accordance with its notice to the applicant pursuant to s 78 of the 1998 Act (see paragraphs 6-7 above) was a denial to compensate the applicant in relation to his psychological condition.
It has been unsuccessful in avoiding the payment of compensation to the applicant by it, which it was attempting to avoid by the decision that it made by its notice pursuant to s 78 of the 1998 Act. In my opinion, it incurred costs in these proceedings as it resisted a claim for something to which the applicant was actually entitled (to use the language in Gretton). The applicant was as a result required to commence proceedings against it in order to obtain his entitlements against it. It must therefore in my opinion bear its own responsibility for the incurring of its costs, on the grounds of the fairness principles outlined in Oshlack and Gretton.
While the second respondent was successful in arguing that a significant proportion of its liability to the applicant should be apportioned to the first respondent, this degree of success may have led to a costs order in its favour against the first respondent if it had not denied liability for the applicant’s claim against it and was in fact making weekly benefits compensation payments to the applicant, so that the only issue in these proceedings was apportionment of liability. Even in those circumstances, the second respondent would only have been partially successful in its arguments as only two-thirds (and not the 90% that it proposed) of liability has been apportioned to the first respondent.
The second respondent primarily in my opinion incurred costs in these proceedings because of its decision in its notice pursuant to s 78 of the 1998 Act, and I therefore attribute the overwhelming responsibility for its incurring of its costs to itself. As “costs should be paid in a way that is fair”, the first respondent should not be responsible for those costs. I make no order as to costs between the second respondent and the first respondent.

SUMMARY

I find that the applicant sustained a psychological injury pursuant to s 4(b)(i) of the 1987 Act, during the course of his employment with the first respondent. The deemed date of the injury in accordance with s 15(1)(a)(i) of the 1987 Act is 13 August 2015.
I also find that the applicant sustained a psychological injury pursuant to s 4(b)(ii) of the 1987 Act, during the course of his employment with the second respondent. The deemed date of the injury in accordance with s 16(1)(a)(i) of the 1987 Act is 29 March 2021.
I find that the applicant had no current work capacity between 29 March 2021 and 24 September 2023 (save for a current work capacity of $950 per week between 1 June 2022 on 15 June 2022).
I find the applicant’s unadjusted PIAWE to be $1,195.44. I find the PIAWE to be indexed in accordance with the calculations referred to at paragraph 169 above.
I find the applicant to be entitled to awards:
(a)    pursuant to s 60 of the 1987 Act – a ‘general’ order;
(b)    pursuant to s 36(1) of the 1987 Act between 29 March 2021 and 27 June 2021 - calculated in accordance with paragraph 170 above;
(c)    pursuant to s 37(1) of the 1987 Act between 28 June 2021 and 31 May 2022, as well as between 16 June 2022 and 24 September 2023 – calculated in accordance with paragraph 171 above, and
(d)    pursuant to s 37(2) of the 1987 Act between 1 June 2022 and 15 June 2022 – calculated in accordance with paragraph 172 above.
I find that I do not have jurisdiction to determine the applicant’s entitlements pursuant to s 38 of the 1987 Act, in relation to periods after 24 September 2023.
I order the second respondent to pay the applicant’s awards, in accordance with ss 22A(4) and 22A(5) of the 1987 Act.
I apportion two-thirds of liability for the applicant’s awards to the first respondent. It is to pay this apportioned share to the second respondent in accordance with s 22A(4) of the 1987 Act.
I give credit to the second respondent for payments of weekly benefits compensation already made to the applicant, in accordance with its 25 February 2025 email to the Commission – see paragraph 19 above.
I find that ss 254 and 261 of the 1998 Act do not apply either to prevent the applicant’s awards being made or to prevent my apportionment findings being made.
I order the first respondent to pay the applicant’s costs as agreed or assessed. I certify a complexity uplift of 30% in this regard in accordance with table 4 item 4 to schedule 6 of the Workers Compensation Regulation 2016.
I make no order as to costs between the second respondent and the first respondent.
I give leave to the parties to approach the Commission prior to 5 May 2025 should any of them dispute the calculations made by me at paragraphs 169-172 above.

[2025] NSWPIC 149

14 April 2025