State of New South Wales (NSW Police Force) v Culhana
[2024] NSWPICPD 73
•12 November 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | State of New South Wales (NSW Police Force) v Culhana [2024] NSWPICPD 73 |
APPELLANT: | State of New South Wales (NSW Police Force) |
FIRST RESPONDENT: | Danielle Culhana |
SECOND RESPONDENT: | Maddison Louise Stockwell |
THIRD RESPONDENT: | Archie JD Stockwell |
FOURTH RESPONDENT: | Liam Michael Stockwell |
FIFTH RESPONDENT: | Belinda Sultana |
INSURER: | Employers Mutual Limited – TMF |
FILE NUMBER: | A1-W7593/23 |
PRESIDENTIAL MEMBER: | Acting Deputy President Paul Sweeney |
DATE OF APPEAL DECISION: | 12 November 2024 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 17 May 2024 is confirmed. 2. Remit the matter to the Member for determination of the outstanding issues. 3. If the appellant wishes to make a submission in respect of costs it should lodge and serve the submission within seven days. |
CATCHWORDS: | WORKERS COMPENSATION – Sufficiency of evidence to prove causal nexus between post-traumatic stress disorder and death from adenocarcinoma – Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 and Fuller-Lyons v State of New South Wales (No. 3) [2013] NSWSC 1672 considered and applied – use of inappropriate grounds of appeal adopted from language of administrative law |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Ms K Balendra, counsel | |
| Hicksons Lawyers | |
| First Respondent: | |
| Ms E Grotte, counsel | |
| Law Partners | |
| Second Respondent: | |
| Mr J Trainor, counsel | |
| Littles Lawyers | |
| Third respondent: | |
| Mr M Dababneh, solicitor | |
| MD Law Group | |
| Fourth respondent: | |
| Mr D Adhikary, counsel | |
| LHD Lawyers | |
| Fifth respondent: | |
| No appearance | |
DECISION UNDER APPEAL: | Culhana v State of New South Wales (NSW Police Force) [2024] NSWPIC 257 |
MEMBER: | Ms R Homan |
DATE OF MEMBER’S DECISION: | 17 May 2024 |
INTRODUCTION
Craig Stockwell (the deceased) was attested as a police officer on 19 December 2003. He served continuously in the NSW Police Force (State of New South Wales) (the appellant) until 3 November 2019. It is common ground that he suffered a psychological injury, post-traumatic stress disorder, arising out of and in the course of his employment.
The appellant accepted liability to pay compensation in respect of the deceased worker’s psychological injury. While he was absent from work and in receipt of compensation, the deceased developed gastroesophageal reflux symptoms for which he sought medical treatment. On 4 March 2021, a gastroscopy examination confirmed the presence of an ulcerated oesophagitis diagnosed as Barrett’s oesophagitis. On 17 June 2021, a further gastroscopy and biopsy identified an adenocarcinoma at the distal end of the oesophagus. On 27 November 2022, the deceased died as a result of metastatic gastroesophageal functional carcinoma.
On 22 May 2023, solicitors acting for Danielle Culhana (the first respondent) wrote to the appellant’s insurer, Employers Mutual Limited (EML), alleging that the death of the deceased resulted from his accepted work injury, post-traumatic stress disorder, and claiming the benefits provided by ss 25 and 26 of the Workers Compensation Act 1987 (the 1987 Act) in respect of the death of a worker on behalf of the dependants of the deceased.
On 31 October 2023, EML issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) by which it denied that the death of the deceased resulted from the accepted work injury and declining to pay compensation in accordance with s 25 of the 1987 Act.
ARBITRAL PROCEEDINGS
On 11 October 2023, the first respondent lodged an Application to Resolve a Dispute (ARD) with the Personal Injury Commission which alleged that the deceased worker died on 27 November 2022 as a result of injury suffered in the course of his employment.
The ARD particularised the “Injury description/Cause of injury or death” as follows:
“Throughout the course of his ordinary employment duties, the [deceased] was required to attend to critical incidents which were traumatic in nature, including murders, suicides, self-harm and motor vehicle accidents.
The [deceased] subsequently developed a psychological injury, diagnosed as Post-Traumatic Stress Disorder which was accepted by the insurer. He was assessed at 23% WPI relating to this injury.
Following the psychological injury, our client began heavily smoking and drinking. He developed reflux and was subsequently diagnosed with Barrett’s Oesophagus and peptic ulcers, which were confirmed to have resulted from prolonged periods of stress and anxiety from the workplace. By June 2021, this condition was confirmed as Grade 4 Ulcerative Oesophagitis and Adenocarcinoma. Metastatic disease was diagnosed and progressed to a terminal phase which ultimately led to Mr Stockwell’s passing on 27 November 2022.”
On 21 March 2024, Member Homan conducted a conciliation conference and arbitration hearing at which each of the parties were legally represented. It was agreed at the arbitration hearing that the Member would determine the primary issue of whether the deceased’s death resulted from employment injury as a preliminary issue. If the respondents established that the appellant was liable to pay the death benefits, the matter might be relisted to deal with the issues of dependency and apportionment of the compensation. The hearing proceeded on the written material.
The principal issues at the arbitration hearing concerned the time at which the deceased first experienced psychological symptoms related to his employment and if, and when, these symptoms engendered the deceased’s increased use of tobacco and alcohol. There were also conflicting medical opinions as to the influence of psychological stressors, and increased tobacco and alcohol use, on the development of the deceased’s adenocarcinoma and his death. Resolution of the medical issue was partially dependent on the outcome of the principal factual issues. The Member resolved these issues in favour of the respondents.
By a Certificate of Determination dated 17 May 2024, the Member found:
“Craig Stockwell died on 27 November 2022 as a result of injury for the purposes of ss 25(1) and 26 of the Workers Compensation Act 1987.”
It is from that determination that the appellant brings this appeal.
GROUNDS OF APPEAL
The appellant alleges that the Member made the following errors:
(a) Finding that the deceased worker experienced significant symptoms of post-traumatic stress disorder from 2015 when such a finding is not supported on the evidence (Ground A).
(b) Finding that the deceased worker changed his smoking pattern to one of excess from approximately 2015 when there was no evidence to support such a finding (Ground B).
(c) Unreasonably rejecting the conclusions of Dr Gorman and Associate Professor Talbot (Ground C).
ON THE PAPERS AND THRESHOLD MATTERS
The parties agree that it is appropriate that the appeal be dealt with on the papers.
13.Section 52(3) of the Personal Injury Commission Act2020, together with Procedural Directions PIC2 and WC3, provide that I may be satisfied that the documents and the submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am so satisfied in this matter and propose to determine the matter “on the papers” without holding any conference or formal hearing.
The respondents accept that the appeal was lodged within 28 days of the decision appealed against and that there are no threshold issues.
NATURE OF THE APPEAL
The appeal is pursuant to s 352 of the 1998 Act, which relevantly states:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
Given the criticisms of the Member’s factual findings in its submissions relating to each of the three grounds of appeal, it is necessary to briefly review the lay evidence and aspects of the medical evidence before the Member. What follows is not intended to be a comprehensive survey of the evidence. I have confined review of the medical evidence to the reports that are important to the issues raised in the appellant’s grounds of appeal. An understanding of the histories obtained by Dr Cameron, psychologist, and Dr Neale, psychiatrist, and the opinions of Associate Professor Talbot, a surgeon, and Dr Gorman, a physician, provides a context to the submissions and will enable the parties to understand the way in which the appeal has been determined.
In what follows the State Technical Investigation Branch (STIB) to which the deceased was deployed between 2009 and 2015 is described in several different ways by witnesses. Identification of that command is apparent from the context.
EVIDENCE
Craig Stockwell (the deceased)
By a statement of 11 January 2020, the late Mr Stockwell states that he had recently transferred to the Fairfield Police Station from the Granville Police Station after a complaint was made about his use of excessive force. The complaint was still under investigation. He states that he first raised “my issues in mid-2019” when he spoke with his supervisors Sgts Summerville and Koksal, and Inspector Stone “and told them that I was struggling in relation to recent jobs regarding suicides”. He recounts a conversation with Sgt Koksal in which he said:
“I just need to not attend any suicides at the moment in an attempt to self-manage what I am going through. I want to stay out there doing my job.”[1]
[1] Application in Respect of Death of Worker (ARD), p 2.
The deceased stated that following this conversation:
“I continued to attend work full-time and attempted to self-managed [sic] my mental health. The nature of the job is that I have to attend traumatic jobs and have a duty of care to do so. Due to the course of my duties as a front-line officer I felt that I would be neglecting my duty if I didn’t attend as other police relied upon the closest police vehicle to respond to the incident.”
The deceased says that he attended Baulkham Hills Medical and Dental Centre in early November 2019 when he “received general medical certificates” for time off work. He then saw Dr Pollard who:
“issued me with a WCMC indicating PTSD with multiple attendances at suicides and recently traumatised by a lack of support from the force regarding the arrest and subsequent allegation of use of excessive force.”
The deceased then recounts difficulties in the relationship with his partner. He states that he suffers from impatience, hypervigilance, feelings of worthlessness. He continues:
“The events occurred over 16 years of serving. There are two or three occasions when [I have] realised that I need to take a break and I have taken holidays and spent time with friends and that has worked in the past but on this occasion it hasn’t. I reported that I wasn’t coping with my mental health to my supervisor, it was probably to a point where I couldn’t return to being a normal person. When I got the response that I got, and I was given a phone number for the EAP to help, I felt let down.”[2]
[2] ARD, p 3.
The deceased’s statement then recounts several traumatic incidents he experienced in the course of his employment. An Asian male who was shot in the head and chest; a Middle Eastern man who hung himself with an electrical cord; an Indian lady who hung herself; and an Irish man who died when his car was crushed by a truck on the M4. He continues:
“These are the most recent ones but there are 20 or 30 jobs that I could raise here but I just don’t want to think about them.
I see their faces and I see the scene and sometimes I wake up in the middle of the night and go for a walk because I can’t get back to sleep.”[3]
[3] ARD, p 4.
The deceased then recounts two disciplinary issues that may have affected his mental health. The first relates to the withdrawal of a charge against a person he had arrested, which he says, “has now left me open to have a criminal conviction”. The second related to a conversation with Inspector Stone “in relation to a recent personal incident and possible suspension.”
There is a supplementary statement of the deceased which is unsigned and undated. It was undoubtedly prepared with the assistance of a solicitor. Nonetheless, it was admitted into evidence without objection at the arbitration hearing. By that statement, the deceased recounts the development of oesophageal symptoms around November 2020 and his referral to Dr Kumar, an endoscopist, and A/Prof Talbot, a surgeon. It records that from 26 June 2021, he consulted an oncologist, Dr Pavlakis. He states that he suffers from extreme pain and fatigue. He records (inaccurately) the opinions of Dr Kumar and A/Prof Talbot.
The deceased says that it was not until he suffered the oesophageal symptoms in November 2020 “that my eating patterns dramatically changed”. He continues:
“I confirm prior to my cancer diagnosis, I turned to heavy drinking and smoking to numb the intrusive thoughts. My treating psychologist, Mr Smith, is mistaken in his report as I expressed reliance on these substances to cope with the crippling anxiety and depression. My other practitioners and colleagues were aware of the increase of my alcohol and tobacco consumption and can verify this account. I ceased drinking and smoking following my cancer diagnosis in June 2021.”[4]
[4] ARD, p 11.
The statement then addresses the deceased’s treatment, his disabilities, capacity for work, need for treatment and the descriptors in the Psychiatric Impairment Rating Scales in chapter 11 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th edition.
The first respondent
The first respondent is a police officer, who was in a relationship with the deceased in the period prior to his death. The evidence of Ms Culhana is contained in a statement of 24 November 2022. She states that she first met the deceased in 2006 and worked with him in the Mounted Police Unit for 3 years. They “became good friends”. She records:
“When I first met him, he was full of life, which was sometimes too much as he could be quite boisterous. He was an easy-going, hard worker and was just someone that I could trust and rely on. He was a solid guy and loved his food.
He would occasionally have a drink socially, and would sometimes have a smoke at the same time, however it was not a frequent occurrence.”[5]
[5] ARD, p 16.
Ms Culhana records that the deceased left the Mounted Police Unit in 2009 and transferred to the Electronic Surveillance Unit. After 2009, there was little personal contact until they “caught up in person” in October 2020. She records that she was then told about the deceased’s psychological injury. She states:
“He told me that during the worst period, he was drinking a bottle of bourbon per night.”
After describing him as quieter and more subdued than he was previously, Ms Culhana continued:
“… however, one of the first things I noticed after not seeing him for so long, was that he was smoking heavily. I recall this being a huge shock, as previously, Craig had rarely smoked.”
When Ms Culhana next saw the deceased in early 2021, she observed significant weight loss. She also noticed that he was smoking “a packet of cigarettes over a couple of days” and was “also drinking a few times per week with dinner”. She states that:
“As we were only newly dating, I believed Craig was still trying to impress me and in doing so, he was trying to hide his bad habits as much as possible.”[6]
[6] ARD, p 17.
Ms Culhana recounts that the deceased complained of problems swallowing in March or April 2021. He told her he had been diagnosed with Barrett’s oesophagus. Following this, his problems progressively worsened. Subsequently, she attended appointments with medical practitioners on 8 and 9 June 2021 at which the diagnosis of cancer was confirmed. The deceased ceased smoking at this time.
Ms Culhana states:
“I believe if Craig had either never worked for NSW Police, or had continued working in the Mounties Police Unit, he would not have been exposed to so many traumatic incidents and would not have developed PTSD. His chain-smoking and increased drinking only started after his psychological injury and if he had not suffered from this, he would have remained a social drinker only, who had the occasional cigarette here and there.”[7]
[7] ARD, p 18.
Andrew Stockwell
Andrew Stockwell is the deceased’s brother. By a statement of 21 November 2022, he recounts his observations of the deceased from before the time he joined the police force. Although he lived in Tumut, he spoke with the deceased on the phone regularly, made “time to catch up in person every few months”, and “continued to have a very close relationship” with him. Mr Stockwell records that the deceased “rarely consumed alcohol or smoked cigarettes” prior to joining the Police Force, although he would “sometimes have a few drinks or have a cigarette whilst socialising”. He records the following:
“I recall early in his policing career, Craig told me about an incident he attended, where a female had committed suicide by jumping in front of a train. This incident really affected his mental health and took him a long time to get past.
I recall within the first couple of years that Craig started working for NSW Police, he began to smoke cigarettes and consume alcohol more regularly, both in and out of social settings.
Over the years, Craig had mentioned various other incidents that he had attended during his employment, which typically involved deceased persons, including children. I could tell this began to affect him as he became withdrawn and just did not seem himself.
Approximately 5 years ago, I noticed Craig’s consumption of alcohol and cigarettes had increased significantly and it became clear that he had begun relying on these as a coping mechanism for dealing with the traumatic incidents he was forced to attend during his employment. At this stage, we would visit each other often, several times per year and during those visits, I would rarely see Craig without a cigarette in his hand. He would also binge drink alcohol several days/nights of each visit that would typically last around one week at a time.
Around this time, in addition to his apparent reliance on alcohol and tobacco, Craig had also become even more withdrawn and was extremely jittery. He always seemed to be constantly on edge and could never relax. Compared with his usual happy-go-lucky, outgoing self, he was a shell of who he used to be.”[8]
[8] ARD, p 19–20.
The witness then recounts the deceased’s referral for psychological treatment, the development of his difficulties swallowing, and his diagnosis of cancer.
Stephen De Jong
Mr De Jong is a former police officer who first met the deceased in 2003 or 2004. He states:
“I do not have any recollection of seeing Craig smoke cigarettes when we first met, and he would only consume alcohol socially on the weekend.
I cannot recall approximate dates, however when Craig moved to St Mary’s we would catch up approximately every second weekend for a BBQ or go out for dinner. Around this time, I first noticed he started drinking and it was a lot of drink and begun chain smoking at the time.
I do not recall exactly when this took place, however after Craig was transferred to the Electronic Surveillance Unit, I noticed immediately that his consumption of alcohol had increased significantly. His work within this unit placed an extreme amount of stress and pressure on him including fearing for his own safety, as he was working [in] a high stress environment. He was an operator that performed extremely high-risk security work which required him to have different false identities at any given time.”[9]
[9] ARD, p 22.
The witness describes the work performed by the deceased at the Electronic Surveillance Unit (STIB). Whilst he did not work for that Unit, he would occasionally be “working the same job” as the deceased. He continues:
“I recall one work incident that affected both Craig and I significantly. It still gives me nightmares to this day. I cannot recall exactly when however, it was towards the end of Craig’s time in the Electronic Surveillance Unit, when Craig was instructed to install listening devices at a house and after he had done so, the resident of the house was later recorded on the listening devices, doing the unthinkable act to a child. The boy died from the injuries he sustained. Both Craig and I suffered significantly after viewing the video recording of this incident and it was around this time, that I noticed Craig had become extremely withdrawn and on edge.”
Mr De Jong describes the deceased’s demeanour and behaviour at their annual attendance at the Dubbo Cup “towards the end of his time in” STIB. He says that “to say he was on edge would be an understatement.” He states that the deceased spent the whole night “smoking and drinking”. He states that “[t]his was not the Craig I knew”.
The witness then describes other occasions on which he witnessed the deceased smoking and drinking and formed the view that:
“Craig had begun self-medicating with alcohol and cigarettes, to try and deal with all the traumatic events he was required to attend whilst working, as well as the extremely stressful positions he held where he would be constantly fearing for his own life.”[10]
[10] ARD, p 25.
Adam Skelton
Adam Skelton worked with the deceased between August 2016 and 2019 at the Granville Police Station performing general duties. He states:
“When I first met Craig, he was easy to get along with, outgoing, fit, healthy and loved catching up with his mates. He was also very active and at the time was also on the Granville Police footy team. He would often assist me as I was new to the job and I found him to be an extremely efficient and pro-active police officer. Given his happy go lucky nature, we became fast friends, and remained friends after I started working elsewhere.”
The witness records that about 6 or 7 months after he joined the police force the deceased’s demeanour changed:
“He appeared to be overwhelmed by some of the jobs we attended, which often involved deceased persons, and had become extremely withdrawn.”
The witness says that the deceased became more withdrawn in mid-2017. He observed that he was smoking more. He continues:
“Some time in 2018, I noticed his consumption of alcohol had increased exponentially. Instead of just having a couple of beers with the boys, he was drinking to the point of being completely drunk. Around this time, I stayed at his house a few nights and noticed he would do the same at home. He had also increased smoking significantly at the time.”[11]
[11] ARD, p 28.
The witness records a conversation with the deceased towards the end of 2018 during which he was told that the deceased had “spoken to our supervisor and told him that he was not coping at work mentally”.
Mr Skelton states that the deceased started calling in sick and missing shifts. He had become “so withdrawn and on edge, that it was as though he couldn’t focus on anything.” After he left the police force in January 2019, he would invite the deceased to his house for a barbecue. He noticed that the deceased would remain outside for the entire evening “so that he could continue smoking”. He would also drink “a lot of alcohol, sometimes an entire bottle of scotch in one night”.
The witness then recounts his relationship with the deceased after the onset of his illness in a way which is not material to the grounds of appeal in this matter.
Jimmy Eltenn
Mr Eltenn first met the deceased, who coached his daughters at Oztag, in 2018. He records that the deceased was “reliable, fit, happy, active and outgoing” at that time. He was not chain-smoking and “would drink mostly on social occasions”. The witness continues:
“I first noticed he had increased smoking and drinking significantly in mid-2019 as he would constantly be outside. It was around this time, that he told me that he was having trouble mentally, from attending so many horrible incidents at work and that he was seeing a psychologist.”[12]
[12] ARD, p 30.
At a Christmas party in 2019, he observed that the deceased would “constantly be disappearing around the side of the house, so he could smoke”. During social meetings with his friends, he observed the deceased “chain smoke and drinking excessively and we would always have to sit outside the back of my house so he could smoke”.
The witness states that he observed the deceased to have reflux whenever he would eat in 2019 and 2020. He continues:
“His smoking continued to increase and at one point in early 2020, it had become so bad, I approached him and asked him why he was smoking so much and gave him a bit of a hard time about it. He mentioned to me that he wasn’t himself and he had not been okay mentally. He said he was struggling a lot and this seemed to be how he coped.”
The witness then described his observations as to the course of the deceased’s illness which are not material to this appeal.
Dr Alice Neale
Dr Neale is a consultant psychiatrist who saw the deceased at the request of the appellant’s solicitors on 28 April 2021, and provided a report of 30 April 2021.[13] She recorded a history that the deceased began to experience “some difficulties with his mood” 6 to 8 months prior to transferring to STIB. She recorded the following:
“He said he noticed he was unable to read certain affidavits about jobs as ‘they made me feel sick’. He said the attitude in his workplace was ‘get in and out and get it done’ so he noticed that he began to increase his alcohol in order to ‘drown my sorrows’.”
[13] First respondent’s reply, p 14.
Dr Neale continued:
“Looking back, Mr Stockwell said that around that time his mental health ‘fell apart’. He reports feeling anxious travelling to jobs, as well as he was wanting the best outcome for the victims. He also said that he would often look up newspaper articles about jobs after they were finished. At that time, Mr Stockwell said he began to experience intermittent flashbacks about previous traumatic jobs. On reflection, Mr Stockwell said that the flashbacks and nightmares that he has experienced have mostly been from his work in STIB and Rosehill, with no particularly traumatic incidents prior to that.”
Dr Neale recorded that the deceased was transferred to Rosehill in 2015 as a disciplinary action as he had consumed alcohol while on the job. He noticed that his alcohol consumption ‘increased again’ as ‘things started to creep in’ (as in report). He also described an increase in flashbacks, nightmares and noticed he was hypervigilant. She recorded that:
“Around that time, Mr Stockwell said he also began to experience panic attacks characterised by hyperventilation, shakiness and racing heart rate and these incidents would last approximately five minutes.”
Dr Neale also recorded that the deceased had been exposed to traumatic incidents in the course of his employment, that he was suffering from a “peptic ulcer” for which he was taking medication and that he had separated from his fiancée, who had taken out an AVO against him.
Dr Neale diagnosed post-traumatic stress disorder. She expressed the opinion that this condition:
“is primarily a result of the accumulative exposure to trauma through the course of his duties at the New South Wales Police Force. As indicated above, it is my opinion that the actions taken by the New South Wales Police Force following the complaint against him in regards to the use of excessive force, as well as the non-work-related domestic violence incident in July 2020, may have contributed to some increase in Mr Stockwell’s anxiety at those times. It is not my opinion that they were causative of his obvious Post-Traumatic Stress Disorder nor that they are significantly contributory to his current mental health symptoms.”
The doctor expressed the opinion that the deceased was unfit for work.
Associate Professor Michael Talbot
Associate Professor Talbot is an upper gastrointestinal surgeon whose speciality includes management of Barrett’s Dysplasia and cancer. He first saw the deceased on 16 June 2021, following a gastroscopy, which had shown adenocarcinoma of the lower oesophagus. He recorded a history of overweight/obesity at 108kg. He recorded that the deceased had been a heavy smoker with regular consumption of alcohol. He recorded that the gastroscopy investigations demonstrated that the deceased had Stage 4 metastatic disease and that he had been referred for chemotherapy and radiotherapy treatment.
A/Professor Talbot expressed the following opinion on causation in his report in his report of 7 September 2022:[14]
[14] First respondent’s reply, p 42.
“a. Barretts and subsequent dysplasia is a condition driven predominantly by a pre-existing history of gastro-oesophageal reflux. The burden of risk however appears to fall on patients who smoke and in many respects Barretts adenocarcinoma can be viewed as another type of smoking related cancer. Obesity is also a risk factor, both for development of reflux and for the development of Barretts oesophagus.
b. No. Reflux is a common condition. The time taken for reflux to lead to the development of Barretts oesophagus and then for Barretts oesophagus to lead to development of Barretts dysplasia and then on to adenocarcinoma happens over years or decades. Stress is a probable modifying risk factor for the development of gastro-oesophageal reflux or acid related diseases but it is only a modifier of the condition not a cause of the condition. Reflux is predominantly caused, not by an increase of gastric acid secretion but by factors that allow gastric contents to escape out of the stomach up into the oesophagus. These risk factors are predominantly related to structural failings in the lower oesophageal valve, and dietary related and lifestyle related especially with regards to weight. The majority of patients with significant reflux also have anatomic abnormalities of their lower oesophageal sphincter valve related to the development of a hiatus hernia. Hiatal hernias are more common in older or overweight individuals. Mr Stockwell's reflux would most probably have started developing many years previously and the risk of then developing Barretts and then the Barretts developing or transforming into carcinoma is predominantly based on smoking, his diet, his weight and possibly alcohol consumption as well.
c. Anxiety may certainly increase the number of transient lower oesophageal sphincter relaxations and increase somebody’s predisposition to develop reflux symptoms or reflux per se however it is unlikely that this is anywhere near as significant a risk factor for development of Barretts or cancer as the other factors discussed.
d. Smoking and drinking and other forms of harmful habits are methods of self soothing and are simply maladjusted ways of dealing with stress. Stress is ubiquitous in life and most people will fall into bad habits with eating, alcohol, drugs, smoking or other forms of self-harm if they feels [sic] sufficiently stressed however many people have a smoking, alcohol or abnormal eating set of behaviours that proceed [sic, precede] any particular stressful events and in many cases, these abnormal behaviours persist when the stressful events have occurred. In other words, people take on baseline dangerous habits which are contrary to their health interests and while they may increase the frequency or dose of these abnormal habits while stressed the stress itself is associated with these behaviours rather than causing these behaviours.
e. Cigarettes and alcohol significantly increase your risk of virtually all cancers. While they probably increase the risk of reflux as well the effect is more likely to be due to a direct carcinogenic effect of these agents rather than through some secondary mechanism such as increasing transient lower oesophageal sphincter relaxations and subsequent reflux events.
f. The clients Grade 4 ulcerative oesophagitis was due to well established gastro-oesophageal reflux disease. This well established condition had likely been present for many years i.e 5–10 years plus. As I do not know when Mr Stockwell suffered the psychological injury which is part of his claim it is hard for me to have an opinion on this matter. Nevertheless, the balance of probabilities was that he had significant reflux plus other risk factors contributing to the development of cancer that it existed for at least 10 years prior to his cancer diagnosis.
[There is no paragraph g in the original report]
h. It is highly likely that Mr Stockwell developed adenocarcinoma as a result of the Barretts oesophagus which was a result of his well-established reflux oesophagitis combined with smoking, alcohol and obesity.
i. I note the statement by the Workers Compensation Insurer.”
Under the heading “Prognosis”, A/Prof Talbot expressed the view that the deceased’s disease was incurable. He continued:
“In summary on the balance of probabilities, Mr Stockwell had a long history of undiagnosed and therefore untreated gastro-oesophageal reflux disease. A combination of reflux, smoking and alcohol consumption with contribution from excess body weight led to the development of Barretts oesophagus which then led to the development of a Barretts adenocarcinoma which was metastatic at the time of diagnosis. While stress may have contributed to an increase frequency of reflux events there is no evidence that stress causes reflux per se and the actual contribution of stress to reflux disease is likely to be smaller than other risk factors. Stress may increase somebody’s tendency to eat poorly, not exercise, consume alcohol or consume cigarettes however these habits often precede stressful events and are in fact, in [many] people stable habits rather than things taken on transiently during times of stress. In this particular case, it seems likely that the reflux, alcohol and cigarette consumption preceded the diagnosis of PTSD however examination of Mr Stockwell’s history would have to determine the duration of his smoking and alcohol consumption and of his excess weight. It does seem that the reflux that he had no doubt been suffering for many years was clinically silent.”
Dr David Gorman
Dr David Gorman, a physician, provided a report to the appellant’s solicitor dated 24 October 2023[15] based upon the medical reports and witnesses’ statements which are now evidence in this case. In commenting on causation, Dr Gorman noted the reports of Dr Pavlakis, A/Prof Talbot, Professor Fox and Dr Kumar. He noted that Professor Fox, Dr Kumar, and Dr Pavlakis accepted a relationship between stress and the development of gastroesophageal reflux disease based on scientific papers which “show that reflux esophagitis is significantly associated with psychological stress and severity of reflux esophagitis”.
[15] First respondent’s reply, p 33.
After referring to aspects of A/Prof Talbot’s report, Dr Gorman states:
“While Mr Stockwell had stressful incidents during his time in the Police Force, these only reached a crescendo around two years prior to his diagnosis. He had been a long term smoker from at least around 2006 and while his smoking may have increased as a result of work stress from 2018 on this, as Associate Professor Talbot states, would not be long enough to develop the adenocarcinoma.”
Dr Gorman says that he agrees with A/Prof Talbot’s opinion, as the opinions of Professor Fox, Dr Pavlakis, and Dr Kumar:
“note only generally the relationship of stress, alcohol and smoking to the development of adenocarcinoma rather than considering the length of time that these factors need to act.”
In response to a question from the solicitors, Dr Gorman expressed the opinion that the deceased’s psychological injury did not cause or materially contribute to the development of oesophageal cancer. Dr Gorman also expressed the opinion that the deceased would have developed Barrett’s oesophagus and oesophageal cancer irrespective of his employment with the Police Force. He says this:
“He was overweight, had longstanding alcohol use and was smoking since 2006. These in conjunction with his deficient gastroesophageal valve contributed to the reflux and contributed to the eventual development of Barrett’s oesophagus and oesophageal cancer. While stress from time to time would have increased his level of smoking and possibly increased the amount of reflux, this was a minimal causative factor compared with the other factors discussed and, therefore, I believe that whatever his employment he would have developed Barrett’s oesophagus and oesophageal cancer.”
Dr Ian Cameron
Dr Cameron is a psychologist who treated the deceased after his cessation of work in late 2019. By a report addressed to EML dated 19 February 2020,[16] he expressed the opinion that the deceased was suffering from post-traumatic stress disorder. He attributed this condition to:
“recurrent high exposure to potentially life-threatening situations, witnessing multiple deaths and delivering the news of deaths to families during his policing career.”
[16] ARD, p 98.
The doctor recorded an occupational history which included reference to the appellant’s role at the State Technical Investigation Branch. The doctor recorded that this involved the deceased:
“in investigating major crime with listening devices, cameras, GPS. Had many near misses while working in plain clothes. Was required to enter homes of alleged serious criminals to plant surveillance equipment while dressed in plain clothes. If detected he would have to act as a burglar as a cover. Said this was ‘best job in Police’ while also saying that he began to avoid reading affidavits involving alleged paedophiles, or child neglect, as after reading a number of affidavits he experienced intrusive memories [of] information contained in affidavit[s]. Said when he experienced intrusive memories he would experience a knot in his stomach and felt like finding and ‘getting’ the perpetrators. Said he got into difficulties in this job as he and another Police officer went to the pub at the end of a job when they were technically still on duty.”
Dr Cameron recorded that the deceased made a “new start at Rosehill 3 yrs ago”. He was well regarded as an experienced senior police officer performing general duties. He records an incident involving a man with his wife. He felt “under serious threat” at the time. During the struggle the man was injured. While he was congratulated by his colleagues, he said “he felt vulnerable as an officer”, for the “first time he had doubted himself”. He recalled thinking that “this is crazy”. The balance of the history recorded by Dr Cameron is largely immaterial to the issues on this appeal.
SUBMISSIONS
The submissions of the appellant were prepared by Ms Balendra, of counsel, those of the first, second, and fourth respondents were respectively prepared by Ms Grotte, Mr Trainor, and Mr Adhikary, all of counsel. The third respondent adopted each of these submissions. The second and fourth respondents relied on the submissions of the first respondent. Although her solicitors were informed on two occasions of her right to respond, the fifth respondent did not appear on this appeal.
Appellant’s submissions
Ground A
In respect of ground A, the appellant attacked the critical finding of the Member that she was:
“satisfied on the balance of probabilities that the deceased worker began experiencing psychological symptoms, later diagnosed as symptoms of post-traumatic stress disorder, at least from a period towards the end of his service in the STIB, with a particular deterioration between approximately mid-2017 and late 2019.”[17]
[17] Culhana v State of New South Wales (NSW Police Force) [2024] NSWPIC 257 (reasons), [205].
The Member’s analysis of the evidence leading to this finding revealed several factual errors. First, it involved a misunderstanding of the worker’s evidence. Contrary to the conclusion of the Member, the deceased’s evidence did not establish that events over the entirety of his employment “were the catalyst for his psychological injury”. It was inconsistent with his evidence at [15] of his statement of 30 June 2022:
“The events occurred over 16 years of serving. There are two or three occasions when I’ve realised that I need to take a break and I have taken holidays and spent time with friends and that has worked in the past but on this occasion it hasn’t.”[18]
[18] ARD, p 3.
Secondly, the Member erred in concluding that the clinical notes of the deceased’s general practitioner, Dr Pollard, were consistent with his psychological injury being caused by events occurring throughout his employment. The deceased had not complained of his mental health to medical practitioners before 2019, “suggesting that there were no complaints … at an earlier stage of any psychological issues”.
Thirdly, the appellant submits the Member’s acceptance of the history contained in the report of the deceased’s treating psychologist, Dr Cameron[19] was erroneous. Her acceptance that there was an onset of psychological symptoms during employment with “STIB … between 2011 and 2015”[20] was also erroneous. It was submitted that the doctor’s report:
“does not describe the particular onset of symptoms but rather provides a narrative of the experience of the deceased worker while working with the Appellant”[21] (my emphasis).
[19] ARD, p 98.
[20] Reasons, [193].
[21] Appellant’s submissions, [8].
A proper analysis of Dr Cameron’s evidence provided no basis for the Member’s finding of the onset of psychological symptoms in 2015. Rather, the doctor concluded that the deceased’s psychological injury resulted from “recurrent high exposure to potentially life-threatening situations”. These did not relate to the deceased’s “reported experience at [STIB]”.
Thus, there was:
“no basis for the Member’s view that Dr Cameron described an onset of symptoms during the period in which the deceased worker worked at [STIB].”
Fourthly, the appellant criticises the Member’s acceptance of the history obtained by Dr Neale, the respondent’s qualified psychiatrist, that the deceased experienced “difficulties with his mood approximately six to eight months prior to transferring from the STIB to Rosehill”. The history recorded was “in contrast with the direct evidence of the deceased worker” in his supplementary statement[22] that his diet had changed following “the onset of my PTSD symptoms in 2019”. The appellant submits that the evidence of the deceased worker should be preferred to a history contained in a medical report. Further, the Member made no attempt to reconcile the apparent discrepancies.
[22] ARD, p 10.
Fifthly, the lay evidence did not support a finding that the deceased worker experienced psychological symptoms from 2015. The appellant criticises the Member’s reliance on the evidence of Andrew Stockwell.[23] An observed change in the deceased’s demeanour did not prove the existence of psychological symptoms in 2015. It was not until 2017, that Mr Stockwell observed the deceased exhibiting symptoms of psychological disorder. It also criticises the acceptance of the evidence of Mr De Jong. It might be accepted that the witness stated that the deceased’s work at STIB was stressful, but the only other relevant observation in his evidence was that the deceased’s “consumption of alcohol had increased significantly”.
[23] ARD, p 19.
Ground B
In impugning the Member’s finding that the deceased “changed his smoking pattern to one of excess … from approximately 2015”,[24] the appellant criticises the acceptance of aspects of the lay evidence in respect of both the deceased’s smoking pattern and alcohol consumption. It argues that the evidence of the deceased is silent as to when “he turned to heavy drinking and smoking to numb intrusive thoughts”.
[24] Reasons, [228].
The appellant describes the evidence of Danielle Culhana[25] as “of little assistance”. Save for two occasions she had not seen the deceased between 2009 and 2020. The statements of Andrew Stockwell and Stephen De Jong both referred to increased alcohol and cigarette consumption occurring “approximately 5 years ago”. In both cases this would place the alteration of the deceased’s smoking pattern in 2017. The evidence of Adam Skelton also recorded his observations that the deceased was “not just smoking in a social settings” in mid-2017 and “an exponential increase” in 2018.
[25] ARD, p 16.
The appellant submitted that the Member’s analysis of the evidence of these witnesses in her reasons[26] was only consistent with the change in the deceased’s smoking and alcohol consumption increasing in 2017. The erroneous conclusion that the appellant’s smoking increased in 2015 is said to vitiate the Member’s finding that stress and increased cigarette smoking, and alcohol were factors which materially contributed to the development of adenocarcinoma. The submission continues that, assuming the correct conclusion had been reached as to when the deceased’s smoking increased:
“the increased consumption of alcohol and cigarettes would not have been factors, or material contributions, in the development of adenocarcinoma.”
[26] Reasons, [195]–[201].
The appellant also submits that even assuming that the Member’s determination as to the onset of psychological symptoms was correct, there was no basis for her ultimate finding that the contribution of the deceased worker’s psychological injury to his adenocarcinoma and consequently his death was material.[27] It is difficult to envisage how this argument relates to Ground B.
[27] Reasons, [230].
Ground C
The third ground of appeal argues that the Member erred in “unreasonably rejecting” the conclusions of Dr Gorman and A/Prof Talbot. It relies on a statement by Forster J in Singh v Minister for Immigration and Ethnic Affairs[28] which appears to have little relevance to an appeal under s 352 of the 1998 Act.
[28] (1987) 15 FCR 4 (Singh), 10.
The gravamen of the submission is that only A/Prof Talbot and Dr Gorman “addressed the duration of the development of the deceased worker’s gastro-oesophageal symptoms”. I assume this relates to the opinions of both doctors that the development of Barrett’s disease would have occurred over a period of 5 to 10 years and possibly longer.
It was submitted that “[a]s there is no contrary opinion [to that of Dr Gorman and A/Prof Talbot] they should be accepted”. The submission concludes that the Member’s rejection of the evidence of Dr Gorman and A/Prof Talbot was “unreasonable”.
First respondent’s submissions
Ground A
The first respondent submitted that the evidence as a whole supported the Member’s finding that the deceased began to experience psychological symptoms in or about 2015. The Member reached this view after a “critical analysis of all of the evidence”.[29] The first respondent sets out aspects of the evidence “referred to, and relied on,” by the Member to support this finding. She referred to:
(a) the deceased’s Injury Notification Form dated 4 November 2019;
(b) the history recorded by Dr Pollard on 14 December 2019;
(c) the history contained in the report of Dr Ian Cameron dated 19 February 2020;
(d) the history recorded by Dr Selwyn Smith, psychiatrist, in his report of 8 February 2023;
(e) the history contained in the report of Dr Alice Neale;
(f) the evidence of Andrew Stockwell, and
(g) the evidence of Stephen De Jong.
[29] First respondent’s submissions, [11].
After analysing aspects of this evidence, the first respondent submitted that there was “clearly evidence to support the finding”, which was “open and available”.
Ground B
The first respondent submitted that the pivotal finding made in respect of the use of tobacco and alcohol was not that at [228] of the reasons; rather the relevant finding was set out at [207]. The conclusion at [228] was “ambiguous and arguably conflated”. The first respondent argued that the Member was restating her finding that the deceased was experiencing psychological symptoms from 2015 and “this led to excessive tobacco and alcohol consumption”. The Member had accepted “the lay evidence which placed the increase to excessive quantities in about 2017”. The first respondent relies on the reasoning of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang[30] and submits that if the reasons were read fairly, this ground of appeal must fail.
[30] [1996] HCA 6; 185 CLR 259, [30] and [31].
Ground C
The first respondent argued that the Member preferred expert evidence tendered in the first respondent’s case to that tendered in the appellant’s case after a “rational and cogent analysis of the opinions”. It continued:
“She explained at [227] that the opinions differed because of their different ‘understanding of the extent and duration of the deceased worker’s post-traumatic stress disorder symptoms and use of tobacco’. She explained fully why she preferred the deceased’s medical experts.”[31]
Second respondent’s submissions
[31] First respondent’s submissions, [47].
Ground A
After quoting from the reasons of Roche DP in Raulston v Toll Pty Limited,[32] the second respondent submitted that the appellant’s arguments on appeal were simply a reiteration of those made at the arbitration. The submissions made by the appellant were “insufficient to enliven section 352”. Alternatively, it had not been established that the challenged findings were “wrong” within the meaning of Raulston.
[32] [2011] NSWWCCPD 25 (Raulston), [19].
Ground B
The second respondent submits that there was ample evidence to support the Member’s finding in the medical histories and lay evidence which the Member considered and accepted. She argues that in her analysis of the evidence the Member “was expressly avoiding being definitive as to the commencement of the deceased’s excessive tobacco use”. The significant finding is that the deceased’s increased tobacco consumption “occurred after, and as a result of, the onset of his psychological symptoms while working in the STIB”. There was ample evidence to support the conclusion. The second respondent submits that the appellant’s argument at [33] and [34] is illogical and involved a statement of the Member’s opinion rather than of the medical evidence in the case.
Ground C
The second respondent submits that the reference to “unreasonable rejection” of evidence did “not comfortably fit within the paradigm” of s 352 of the 1998 Act. Alternatively, it submits that the appellant’s submissions did not “engage with, let alone challenge, the Member’s reasons”. If the appellant’s submissions identified error, “the error is not material in the sense of affecting the outcome” to be found in the Member’s reasons at [226].
Fourth respondent’s submissions
Ground A
The fourth respondent submits that the appellant had “ignored the proposition” that the history recorded in a medical report is evidence of the fact. He refers to Guthrie v Spence[33] and Moriarty-Baes v Office Works Superstore Pty Limited.[34] Contrary to the appellant’s submissions, the report of Dr Cameron did contain a narrative of the onset of psychological symptoms. It was consistent with the Member’s finding that the deceased’s work at STIB engendered symptoms of psychological distress.
[33] [2009] NSWCA 369 (Guthrie), [75].
[34] [2015] NSWWCCPD 28, [130].
The fourth respondent submits that the inconsistency alleged by the appellant between the history of the onset of symptoms at STIB and the evidence of the deceased was “misconceived”. The fourth respondent continues:
“There is a marked difference between a person stating he or she experienced difficulties with his or her mood at a certain point in time and the same person stating he or she experienced [an] onset of PTSD symptoms later in time.
This is consistent with the trajectory and evolution of injury, particularly PTSD injury i.e. symptoms are experienced and those symptoms change and worsen with time, ultimately becoming more serious.
This is the basis upon which the Member made her findings (see [205]–[206]).”
There was no need for the Member to reconcile the history contained in Dr Neale’s report and the deceased’s evidence as it was not internally inconsistent.
Ground B
The fourth respondent submitted that it could not be assumed that the increase in the deceased’s use of tobacco and alcohol occurred at the precise time it was observed by Mr Stockwell and Mr De Jong. Rather their evidence, which the Member accepted, is consistent with significant increase in the appellant’s use of tobacco and alcohol “prior to 2017 and from approximately 2017” (emphasis by fourth respondent).
Ground C
The fourth respondent argues that the appellant’s submissions did not “grapple with the Member’s findings” at [216] and [217]. The appellant’s failure to grapple with these findings was fatal to this ground of appeal. Further, the appellant had sought to reagitate submissions made at the arbitration hearing. The appellant’s emphasis upon the duration of symptoms was misconceived as it:
“sought to restrict the period of consideration in an unduly narrow manner by ignoring many years during which the [deceased] experienced and exhibited symptoms of mental distress which were materially relevant to his conditions and death.”
The fourth respondent observed that the appellant did not cavil with the finding that the deceased’s smoking increased from about 2017.
Appellant’s submissions in reply
Ground A
The appellant states that this ground does not raise a no evidence point. The ground is that the finding that the deceased experienced symptoms of post-traumatic stress disorder in 2015 “was not supported by the evidence”.
The appellant deals with the respondents’ submissions that the history in the medical reports was evidence of fact in accordance with Guthrie by elaborating on its primary submission. It relied on the reasoning in Mason v Demasi[35] to argue that caution should be exercised in preferring medical histories to the direct evidence of witnesses. In this case the deceased worker addressed the history of the development of his symptoms. His evidence should have been preferred to the hearsay evidence in the medical reports.
[35] [2009] NSWCA 227, [2].
The appellant submits that the fourth respondent reconstructed:
“an opinion of Dr Cameron which is not reflected in his report. As noted at [9] of the appeal submissions … Dr Cameron was specifically asked about causation of the deceased worker’s PTSD and provided a specific answer”.
Ground B
The appellant submits that it did not argue that the deceased’s increased use of alcohol and tobacco occurred at the precise time that it was observed by witnesses. Rather, that there is no evidence to support a finding that it occurred earlier.
Ground C
The appellant again referred to the Member’s critical finding at [227] that the difference between the respective medical cases could be explained by their “different understanding of the extent and duration of the deceased worker’s post-traumatic stress disorder symptoms and use of tobacco”.
As the Member’s findings as to the “extent and duration” of the deceased’s use of tobacco are erroneous, the basis of her rejection of the opinions of Dr Gorman and A/Prof Talbot was “unreasonable”.
DISCUSSION AND FINDINGS
It was accepted at the arbitration hearing that whether the death of the deceased resulted from employment injury depended on the application of the principles in Kooragang Cement Pty Limited v Bates.[36] It was also accepted that to establish causal nexus between the deceased’s death and employment injury the respondents must establish that the injury materially contributes to the death of the deceased.[37] Applying the reasoning of the Court of Appeal in Sutherland Shire Council v Baltica General Insurance Co Limited,[38] the test of causation in a claim under the 1987 Act corresponds to that at common law. During her oral submissions at the arbitration hearing,[39] Ms Grotte also referred to Strong v Woolworths,[40] Amaca Pty Limited v Ellis[41] and Bonnington Castings Ltd v Wardlaw.[42]
[36] (1994) 35 NSWLR 452.
[37] Murphy vAllity Management Services Pty Limited [2015] NSWWCCPD 49, [58].
[38] (1996) 12 NSWCCR 716.
[39] Transcript of proceedings of 21 March 2024, p 7.
[40] [2012] HCA 5.
[41] [2010] HCA 5.
[42] [1956] AC 613.
Aspects of both the evidence and the submissions before the Member may go beyond the issue raised by the pleadings, the connection between post-traumatic stress disorder and death, and address the question of whether the deceased’s death resulted from his employment in a more general sense. However, no objection was taken to this evidence at the hearing and the issue has not been raised on this appeal.
The appellant’s grounds of appeal, where they can be clearly understood, raise issues which were ventilated at the arbitration hearing. While Ground B, a no evidence submission, may involve a question of law, the appeal largely turns on a challenge to the Member’s finding of fact. The appellant argues that there was either no, or insufficient, evidence of psychological symptoms prior to 2017 to permit a conclusion that the deceased’s psychological health was adversely affected at that time or that this led to increased use of tobacco. While it asserts error, there is no concerted attack on the legal principles adopted by the Member in reaching her conclusions as to causal nexus between injury and death.[43]
[43] cf. Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260.
The principles applicable to an appeal under s 352 have been discussed extensively in the case law, commencing with the decision of Roche DP in Raulston, Roche DP said this at [18]–[21]:
“In applying the above provisions, the Commission will have regard to the following general principles and authorities.
First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Member’ for ‘trial judge’ where appropriate):
(a)A [Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential Member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b)Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential Member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c)It may be shown that an [Member] was wrong ‘by showing that material facts have been overlooked or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong.’
The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’
After observing that a degree of tolerance for any such divergence in any particular case will often be a product of the perceived advantage enjoyed by the trial judge, Allsop J concluded (at [29]):
‘The appeal court must come to the view that the trial judge was wrong in order to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion.’”
In Northern NSW Local Health Network v Heggie,[44] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519, per Mason and Deane JJ.”
[44] [2013] NSWCA 255, [72].
In Workers Compensation Nominal Insurer v Hill,[45] Basten JA said the following at [20]:
“If, on appeal by way of rehearing, the Court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the Court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”
[45] [2020] NSWCA 54.
Ground A
In introducing this ground, the appellant relied on a quotation from Kirby P (as his Honour then was) in Azzopardi v Tasman UEB Industries Ltd[46] which, as the respondents point out, is wrongly attributed to Glass JA. Azzopardi was an appeal from the former Workers Compensation Commission. The right of appeal to the Court of Appeal was limited to error in point of law or the admission or rejection of evidence. While Kirby P joined with Glass JA (with whom Samuels JA agreed) in dismissing the appeal, his reasoning is markedly different from the statement of Glass JA as to what constitutes error of law. The NSW Court of Appeal has repeatedly applied the reasoning of Glass JA. Plainly, the appellant’s arguments under this ground are not capable of establishing error of law. As this appeal is not limited to error of law, it is necessary to consider whether there is error of fact.
[46] (1985) 4 NSWLR 139 (Azzopardi), 151.
It is true that there is no emphatic evidence from the deceased in his statements identifying the precise time he began to experience psychological symptoms in the course of his duties as a police officer. However, in resolving the issue of the time of onset of psychological symptoms, the Member was not limited to that evidence. She was able to draw on the lay evidence tendered in the case and, of course, the medical histories recorded by the psychologist and psychiatrists who had examined the deceased prior to his death. It is not an auspicious starting point for an attack on the Member’s finding that the deceased suffered psychological symptoms towards the end of his deployment at the STIB that its qualified psychiatrist recorded the onset of such symptoms at precisely this time.
Dr Neale recorded a clear-cut history of mood disturbances related to the deceased’s work while he was assigned to STIB. She recorded that he experienced “intermittent flashbacks about previous traumatic jobs”. The flashbacks and nightmares “have mostly been from his work in STIB and Rosehill”. Dr Neale concluded that the deceased suffered post-traumatic stress disorder attributable to incidents in the course of his duties. She attributed this injury “most notably during his time with the [STIB] and at the Rosehill station.”
It is not disputed that a history taken by a doctor and recorded in a medical report is evidence of the fact so recorded.[47] Causation in psychological injury cases is often complex. Obviously, a psychiatrist’s opinion as to the cause of a psychological injury is important evidence on the issue of causation by reason of their training and expertise in the aetiology of psychiatric illness. Equally, a psychiatrist may be best qualified to ascertain when a patient first experienced symptoms of psychological illness. For that reason, Dr Neale’s recoded history is cogent evidence that the deceased suffered psychological symptoms while at the STIB is cogent evidence.
[47] Guthrie, [75].
Of course, medical histories can be, and often are, inaccurate or incomplete. As the appellant submitted, they should be treated with caution particularly where they conflict with sworn evidence. For that reason, it was undoubtedly necessary for the Member to consider the history and opinion of Dr Neale in the context of all the relevant evidence. A history recorded in the report of Dr Selwyn Smith, dated 6 February 2020,[48] is entirely inconsistent with Dr Neale’s history. However, the Member dealt with this inconsistency in her reasons, and found that Dr Smith’s history of the deceased’s use of tobacco was incompatible with the balance of the evidence and rejected it.
[48] ARD, p 75.
The appellant argues that the Member should have rejected Dr Neale’s history as it was also inconsistent with the direct evidence of the deceased. It argued that the Member made no attempt to reconcile this discrepancy. The appellant argued that a passage from the deceased’s supplementary statement, quoted by the Member at [26] of her reasons, was inconsistent with Dr Neale’s history. That passage addresses changes in the deceased’s diet. It is as follows:
“… my diet remained consistent, until the onset of my PTSD symptoms in 2019, when my appetite reduced as I had no motivation to cook meals. However, from November 2020, my oesophagus symptoms commenced, making it even more difficult to eat. This is why I told Dr Neale in April 2021 that I only consumed one meal per day.”
Plainly, a conflict between a witness’s evidence and a recorded history or statement in a document can give rise to an issue of reliability: see Moran v Amoret Installations Pty Ltd.[49] Generally, both cannot be right. However, I do not believe that the passage referred to by the appellant establishes that the Member erred in the way suggested.
[49] [2000] NSWCA 106, [15].
First, as the Member quoted the passage in her review of the evidence, she clearly took it into account. Secondly, in my opinion, the passage is not inconsistent with the history recorded by Dr Neale as to onset of psychological symptoms at the STIB, when considered in its context. It deals with changes to the deceased’s diet after the onset and diagnosis of post-traumatic stress disorder in 2019. That is after the deceased ceased work and was under the care of medical practitioners. Thirdly, it must be borne in mind that Dr Neale was the appellant’s witness. It could have briefed her with the evidence, including that of the deceased, and asked her whether that evidence was inconsistent with her history and opinion as to the onset of symptoms. I assume it did not take this course.
The first factual error alleged by the appellant under Ground A is that the Member erred in her conclusion that the deceased’s evidence was that incidents over the entirety of his employment “were the catalyst for his psychological injury”. It was inconsistent with [15] of the deceased’s primary statement. However, the first sentence of [15] is undoubtedly consistent with the Member’s conclusions. To reiterate, it commences:
“The events occurred over 16 years of serving.”
While the balance of the paragraph records that the deceased recovered sufficiently to return to work after “a break” prior to the cessation of employment in 2019, it does not negate his assertion that he experienced traumatic events, which contributed to his psychological injury, throughout his employment. The sentence quoted above is consistent with events over 15 years contributing to his psychological injury. In his primary statement, the deceased also referred to the most recent events that he believed brought about his condition. He continued:
“… there are 20 or 30 jobs that I could raise here but I just don’t want to think about them”.[50]
I infer that these jobs occurred throughout the deceased’s career in the police force. The passages of evidence to which I have referred are supportive of the Members conclusion that events throughout his employment materially contributed to his psychological illness.
[50] Deceased’s statement 11 January 2020, [25].
Related to this criticism of the Member’s reasoning, is the assertion that she misunderstood the history recorded by Dr Pollard. By this submission, the appellant argued that the absence of complaint to a medical practitioner before 2019 in the clinical record equates with an absence of symptoms. Certainly, the absence of complaint to a medical practitioner may be relevant to proof of injury. But it is difficult to see how it is relevant to the existence of psychological symptoms in this case. A consideration of the last decade of disputes in post-traumatic stress disorder claims suggests that disabling symptoms do not always arise at the time of the traumatic incident and that workers do not always seek treatment following traumatic events. More importantly, Dr Neale did not record a history of medical treatment while the deceased was deployed to the STIB. Nonetheless, she was able to confidently conclude that the work there caused the appellant’s psychological symptoms. One assumes that Dr Neale was or could have been briefed with Dr Pollard’s notes. If the appellant believed that these notes raised a critical issue as to causation, Dr Neale could have addressed the question in a supplementary report. The appellant’s submission on this issue is inconsistent with its own medical case.
The appellant then criticises the Member’s reliance on Dr Cameron’s medical history. It was a “narrative” of the deceased’s experience rather than a description of the onset of symptoms. It must be borne in mind that the history recorded by Dr Cameron in his report of 19 February 2020 is in response to a letter from EML. Dr Cameron provides an answer to the request that:
“Please provide a summary of the history for Mr Stockwell’s psychological injury as reported by Mr Stockwell.”
Under that heading, Dr Cameron recorded the nature of the work that the deceased was performing at the STIB and recorded that during this work “he began to avoid reading affidavits involving alleged paedophiles, or child neglect”. After reading these documents, he would experience “intrusive memories”, a “knot in his stomach” and “felt like finding and ‘getting’ the perpetrators.”
If the history in Dr Cameron’s report is a narrative, it is a narrative of the development of the deceased’s psychological illness and the symptoms he experienced performing aspects of his work. The suggestion that the Member erred in relying on the history in reaching her conclusion that the deceased experienced psychological symptoms in the latter part of his employment with the STIB is nonsense. I reiterate that Dr Cameron’s opinion is similar in essential respects to that of Dr Neale.
There was ample evidence to support the Member’s conclusion that the deceased’s psychological injury resulted from incidents that occurred throughout the course of his employment. Both the qualified psychiatrists, Dr Neale and Dr Smith, and the treating psychologist, Dr Cameron, accepted that traumatic events during his employment, at least from the time of his deployment to the STIB, caused his accepted psychological injury.
As is often the case, an alternative view could be taken of some aspects the evidence. But it is entirely plausible, as the Member found, that the deceased experienced psychological symptoms caused by his work prior to the worsening of these symptoms and the onset and diagnosis of PTSD in 2019. The symptoms that the deceased experienced from the time he ceased work in 2019 were undoubtedly more severe than the symptoms that the Member accepted he experienced earlier. He was compelled to cease work and seek medical treatment. It is unnecessary to refer to the range of symptoms experienced by the deceased during this period. His evidence of losing weight following the onset of these symptoms does not contradict the medical histories.
Finally, the appellant criticises the Member’s reliance on the lay evidence of Mr Andrew Stockwell and Mr De Jong in reaching her conclusion. But Mr De Jong gives graphic evidence of the deceased’s work at the STIB performing “extremely heightened risk security work”. He also gives an account of the deceased significantly increasing his consumption of alcohol. He specifically alluded to unusual behaviour by the deceased at Dubbo (towards the end of his time in the Electronic Surveillance Unit). He recorded that “to say the deceased was on edge was an understatement”. It is true that both Mr De Jong and Mr Stockwell identify the increase in the deceased’s use of tobacco to a point approximately 5 years previously. However, this does not undermine the Member’s finding that the deceased experienced psychological symptoms in 2015. Indeed, Mr De Jong’s evidence is plainly supportive of it.
The totality of evidence does not permit a conclusion that the Member’s finding that the deceased experienced significant psychological symptoms in the latter period of his employment with the STIB is against the weight of the evidence. As the Member’s thorough analysis demonstrates, there was ample evidence to support such a finding. The errors asserted by the appellant are largely based on a misunderstanding or misstatement of the evidence. This ground of appeal fails.
Ground B
The reasoning of the Member at [228], which the appellant impugns, is a recapitulation of her earlier finding. At [228] the Member states:
“I have found above that the deceased worker experienced significant symptoms of post-traumatic stress disorder that went beyond mere stress or distress and changed his smoking pattern to one of excess as a result of those symptoms, from approximately 2015.” (My emphasis)
As the first respondent submitted, the critical findings are at [205] to [207] of the Member’s reasons. She found:
“Upon careful consideration of the evidence, I am satisfied on the balance of probabilities that the deceased worker began experiencing psychological symptoms, later diagnosed as symptoms of post-traumatic stress disorder, at least from a period towards the end of his service in the STIB, with a particular deterioration between approximately mid-2017 and late 2019.
While I accept the first respondent’s submission that there is no basis on which to find that the deceased worker experienced symptoms sufficient to warrant a diagnosis of post-traumatic stress disorder during the time of his service with the STIB, I do accept that the symptoms which later formed the basis for that diagnosis were experienced from that time onwards.
I am further satisfied that the deceased worker’s consumption of tobacco and alcohol significantly and materially increased as a result of these psychological symptoms. There is evidence of the deceased worker smoking and drinking alcohol prior to the commencement of his employment with the respondent and prior to him reporting work-related stress. I am satisfied, however, that his intake of both substances increased from occasional to excessive levels due to the deceased worker using them to cope with his worsening psychological symptoms.”
I accept the second respondent’s interpretation of the Member’s finding. She found that the deceased increased his tobacco and alcohol consumption “to cope with his worsening psychological symptoms”, which occurred from 2015. While the Member does not state precisely when the deceased’s use of tobacco or alcohol reached “excessive levels”, the finding contemplates a significant increase in the use of both substances as a result of psychological symptoms, which first occurred during the latter period of the deceased’s employment at the STIB.
Contrary to the appellant’s submissions, the Member did not misunderstand the evidence of the deceased and Mr Andrew Stockwell. She explicitly stated that Mr Stockwell, Mr De Jong, and Mr Skelton described observing a significant increase in the deceased’s tobacco and alcohol consumption “from around mid to late 2017”. However, she inferred that the increase in the deceased’s consumption of alcohol and tobacco that was established by the evidence probably commenced after the onset of symptoms in 2015, although it increased again in 2017.
As the appellant submitted, the evidence of the deceased and the first respondent did not identify the precise time at which he increased his use of tobacco or alcohol. In those circumstances was the finding that the deceased’s consumption of tobacco and alcohol materially increased as a result of psychological symptoms from 2015 available?
Contrary to the appellant’s submission, there is some direct evidence of the deceased consuming tobacco and alcohol “excessively” during his deployment to the STIB. Mr De Jong states that he attended the Dubbo Cup with the deceased “towards the end of his time” at the STIB. He described the deceased as being “on edge” and observed him “smoking and drinking” all night while playing poker machines. He recorded that “this was not the Craig I knew.”[51] This evidence is sufficient to undermine the appellant’s no evidence argument in respect of this ground.
[51] ARD, p 23.
The other evidence which was available to the Member in making the finding included:
(a) the evidence of the deceased worker that he had relied on alcohol and tobacco to cope with anxiety and depression;
(b) the evidence of the first respondent of a dramatic change in the deceased’s pattern of tobacco and alcohol consumption between 2006 and 2020;
(c) the evidence of Mr De Jong as to the extremely stressful nature of the deceased’s work at the STIB;
(d) the evidence of Mr Stockwell of a significant increase in the deceased’s tobacco and alcohol consumption during his time in the police force, and
(e) the observations of Mr De Jong, Mr Stockwell and Mr Skelton who described observing a significant increase in the deceased’s smoking and alcohol consumption from 2017.
In Bradshaw v McEwans Pty Limited, the High Court said:
“In questions of this sort where direct proof is not available it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] UK Law Rp AC 47; [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.”[52]
[52] (1951) 217 ALR 1 (Bradshaw), 5.
The reasoning in Bradshaw has been repeatedly applied by both first instance and appellate Courts. In Fuller-Lyons v State of New South Wales (No. 3)[53] Beech-Jones J, sitting as a Judge in the Common Law Division of the Supreme Court of NSW, discussed the process of drawing inferences from proven facts. After noting proven inferences were “as much part of the evidence as those facts themselves”, his Honour noted the following:
“69. First, all the circumstances proved in evidence, however slim, should be closely examined in order to establish whether they ‘rais[e] a more probable inference in favour of what is alleged [ie negligence on the part of the defendant]’ (Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, Luxton v Vines [1952] HCA 19; 85 CLR 352 at 358 per Dixon, Fullagar and Kitto JJ, Holloway at 480 per Williams, Webb and Taylor JJ, Jones at 304 per Dixon CJ, Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; 149 CLR 155 at 161 to 162 per Stephen J).
70. Second, the inference must arise as an affirmative conclusion from the evidence and be established to the reasonable satisfaction of a judicial mind (Jones at 304 per Dixon CJ, West v Government Insurance Office of New South Wales [1981] HCA 38; 148 CLR 62 at 66 per Stephen, Mason, Aickin and Wilson JJ, Condos at [68] per McColl JA, Campbell and Macfarlan JJA agreeing, Jackson v Lithgow City Council [2008] NSWCA 312 at [10] per Allsop P, Basten JA and Grove J agreeing).
71. Third, where the circumstances give rise to nothing but conflicting conjectures that are of equal degrees of probability, the court cannot reasonably arrive at an affirmative inference of negligence (Bradshaw at 5, Luxton at 360 per Dixon, Fullagar, Kitto JJ, Holloway at 480 per Williams, Webb and Taylor JJ, Jones at 304 per Dixon CJ, West at 68 per Stephen, Mason, Aickin and Wilson JJ, Girlock at 161 to 162 per Stephen J). The plaintiff cannot succeed unless the more probable inference is that the injury arose from the defendant’s negligence (Millicent District Council v Altschwager (1983) 50 ALR 173 to 174 per Gibbs CJ, Murphy, Brennan, Deane and Dawson JJ).”
[53] [2013] NSWSC 1672.
In the Court of Appeal, the Judge’s finding in favour of the plaintiff was set aside on the basis that his Honour failed to distinguish carefully between inference and conjecture or speculation.[54] The decision of the Court of Appeal was overturned in the High Court of Australia in Fuller-Lyons v State of New South Wales.[55] Neither the Court of Appeal nor the High Court criticised the Judge’s statement of the process of drawing inferences.
[54] State of New South Wales v Fuller-Lyons [2014] NSWCA 424, [2] and [46].
[55] [2015] HCA 31.
In Woolworths Ltd v Galea[56] Snell DP stated that in an appeal pursuant to s 352 of the 1998 Act the principles of appellate review apply equally to inferences drawn from the evidence. It is an insufficient basis to uphold the appeal that I would have drawn a different inference. It must be demonstrated that the Member was wrong. In this case the Member was entitled to consider the lay evidence in the context of the medical evidence. The respondent’s medical case, which I review briefly below, posited a causal relationship between psychological illness and increased use of tobacco. I appreciate there is conflicting evidence on this aspect of the case. However, A/Prof Talbot, on whose opinion the appellant based its defence, also accepted that psychological stress would “increase the frequency and dose of these abnormal habits”. Ultimately, the Member accepted the respondents’ medical case including the evidence relating to this issue.
[56] [2020] NSWWCCPD 53, [50].
Considering the reasons as a whole, I am not persuaded that the Member erred. It was open to her to find that the deceased worker’s consumption of tobacco significantly increased following the onset of psychological symptoms, from 2015. The Member was entitled to approach the issue of causation on the basis of the reasoning of Spigelman CJ in Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness,[57] who said at [91] that causation like any fact can be “established by a process of inference which combines primary facts like ‘strands in a cable’ rather than ‘links in a chain’”.
[57] [2000] NSWCA 29.
Ground C
The impugned paragraphs of the Member’s decision at [215] to [217] are as follows:
“I am not satisfied, however, that either Dr Gorman or A/Prof Talbot gave adequate consideration to the extent of the deceased worker’s psychological symptoms and use of tobacco and alcohol.
Dr Gorman appears to have understood that the deceased worker’s psychological symptoms only reached a crescendo or impacted upon the extent of the deceased worker’s smoking from 2018 onwards. Dr Gorman described the psychological symptoms as ‘stress’ or ‘distress’ without expressly identifying the nature or severity of the deceased worker’s symptoms as described, for example, in Dr Smith’s and Dr Neale’s reports.
A/Prof Talbot conceded that he did not know when the deceased worker suffered a psychological injury. It is not clear what history was provided to A/Prof Talbot with regard to the extent and nature of the psychological injury or whether he understood the extent of the deceased worker’s tobacco and alcohol consumption from 2015 onwards.”
This ground of appeal commences with a quotation from Singh, an immigration case, in which the Judge stated that if assertions of fact were rejected without reason “the decision-maker would be guilty of ‘failing to take a relevant consideration into account’.” The second respondent submitted that the concept of “unreasonable rejection” of evidence did not comfortably fit within the paradigm of s 352 of the 1998 Act. That must be the case. While some administrative law concepts may be relevant to appeals under s 352, there can be no suggestion here that “facts were rejected without reason” or that the Member failed to consider relevant considerations.
By its submission in reply, the appellant responds to the criticism of the error raised under this ground by arguing that as the Member’s findings as to the “extent and duration” of psychological symptoms and increased use of tobacco were wrong, her rejection of the opinions of Dr Gorman and A/Prof Talbot was also wrong. I accept that if the Member erred in respect of Grounds A and B there would be no basis in her reasons for the rejection of the of the opinions of A/Prof Talbot and Dr Gorman. But I have found that the appellant has failed to establish error in respect of both those grounds. In those circumstances, the appellant has failed to identify any relevant error under this ground, and it must also fail.
While I hold that the appellant has not identified an error of fact or law in its submission, I should add that there was a substantial body of medical opinion to support the Member’s findings of a connection between psychological symptoms, increased smoking, and adenocarcinoma. The respondents’ medical case contains the opinions of two treating medical specialists and an opinion from a specialist oncologist, who was qualified for the purposes of this disputation. It is helpful to briefly review some of that evidence.
In a report dated 30 June 2021, Dr Kumar, a consultant surgeon and endoscopist, who treated the deceased stated:
“He is known to suffer from post-traumatic stress disorder (PTSD). This is known to cause increased acid secretion by the stomach due to the anxiety and worrying associated with PTSD. He has also been smoking heavily and drinking. I believe both these habits are also attributable to PTSD as it is used to relieve the symptoms of PTSD, as well as to relieve his anxiety. Increased and repeated continuous secretion of acid in the stomach, with reflux, is known to cause Barrett’s oesophagus in which there is a double change in the lining of the oesophageal mucosa in such a way that it is unable to defend the organ against the erosive nature of hydrochloric acid secretions from the pyloric antrum of the stomach. These are known causes of Barrett’s oesophagus which he was confirmed to have on the gastroscopy and histological findings of 4/3/21. Barrett’s oesophagus itself is a known cause of adenocarcinoma of the oesophagus.”[58]
[58] ARD, p 82.
Professor Pavlakis, a medical oncologist at Royal North Shore Hospital, who also treated the deceased, considered that the deceased’s age was a “key point in causality attribution”. He continued:
“Acknowledging that the majority of patients with Barrett’s oesophagus will not develop cancer, in Mr Stockwell I believe the severe GERD/reflux oesophagitis and its causes are the most likely factors contributing to the pathogenesis of his cancer. And I believe that his significant work stress leading to PTSD contributed to his GERD and the cigarette smoking and possibly excessive alcohol, which collectively led to his diagnosis of cancer.”[59]
[59] ARD, p 92.
Professor Pavlakis also expressed the opinion that there was evidence in the medical literature supporting “a significant causal link between psychosocial stress and reflux oesophagitis”, and an “association between PTSD and alcohol abuse and cigarette smoking”.
Professor Fox, an oncologist, provided a report on the basis of the material furnished to him by the first respondent’s solicitors dated 4 January 2023. He considered the medical evidence and the epidemiological studies evidencing a connection between psychological stress and Barrett’s oesophagus. Professor Fox concluded:
“I have described above the relationship between stress and gastroesophageal reflux disease (GORD), the relationship of that to Barrett’s oesophagus and hence to an adenocarcinoma in the Barrett’s mucosa of the lower end of the oesophagus.
There is, hence, a clear-cut chain of events between his post-traumatic stress disorder related to his work and the sequential development of the cancer as noted above, i.e., it would in my opinion be that his employment was the main contributing factor to the development of his cancer.”[60]
[60] ARD, p 66.
Professor Fox also opined that there is a connection between post-traumatic stress disorder and smoking and between those afflictions and “increased acid secretion in the stomach”, a cause of ulcerative oesophagitis.
Certainly, A/Prof Talbot was inclined towards a contrary opinion, as he believed the factors which may have contributed to adenocarcinoma predated the onset of PTSD and psychological symptoms. But he concluded that an examination of the deceased’s history would “have to determine the duration of his smoking and alcohol consumption and of his excess weight”. The Member conducted that examination of the deceased’s history within the bounds of the evidence. The appellant placed weight on the argument that the respondents’ medical case did not consider the opinion of A/Prof Talbot that the onset of Barrett’s Oesophagus occurred over many years. It is evident, however, that Professor Fox was briefed with this report. Nonetheless, he expressed an affirmative view as to the causal nexus between the deceased’s employment and psychological injury and the development of adenocarcinoma.
This brief review of the medical evidence in the respondents’ case leaves little room for doubt that there was ample evidence of a sufficient causal relationship between injury and death to support the Member’s finding. Further, there was no error in her rejecting the appellant’s medical case on the basis that A/Prof Talbot and Dr Gorman did not adequately consider the extent of the deceased’s psychological symptoms and his increased use of tobacco as a result of those symptoms. By “extent” the Member is addressing the duration and quality of psychological symptoms which led to his increased use of tobacco.
CONCLUSION
The facts of this case gave rise to peculiar difficulties of proof. The multiple factors which contributed to the deceased’s disease and death are the subject of conflicting and, sometimes, inexact evidence. However, the grounds of appeal raise three specific evidentiary matters. The appellant has not proven the errors alleged in its grounds of appeal. The orders made by the Member in the Certificate of Determination are confirmed.
As the deceased worker was a police officer, the amendments made to the workers compensation legislation by the Workers Compensation Legislation Amendment Act 2012, including those regulating costs, do not apply. In those circumstances, having succeeded on the appeal, the respondents are entitled to costs. If the appellant wishes to make any submission in respect of costs it is directed to lodge the submission within seven days.
DECISION
The Certificate of Determination dated 17 May 2024 is confirmed. The matter is remitted to the Member for determination of the outstanding issues. If the appellant wishes to make a submission in respect of costs, it should do so within seven days.
Paul Sweeney
ACTING DEPUTY PRESIDENT
12 November 2024
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