Templar v State of Victoria (WorkCover)

[2008] VMC 21

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE

WORKCOVER DIVISION

No. W02971729

B E T W E E N

KELLIE TEMPLAR

Plaintiff

-and –

STATE OF VICTORIA

Defendant

MAGISTRATE:   B.R. Wright


WHERE HEARD:   Melbourne


DATE OF DECISION:   31 July 2008

MEDIUM NEUTRAL CITATION:                 [2008] VMC021

APPEARANCES

Mr. C. Miles (instructed by Maurice Blackburn) for the Plaintiff
Mr. P. Trigar (instructed by Wisewoulds) for the Defendant

REASONS FOR DECISION

Accident compensation – Rejection of claim – Whether injury arising out of or in the course of employment – Significant contributing factor - Off duty police officer – Attempt to prevent murder of family member – Preservation of crime scene – Circumstances of return to work – Accident Compensation Act s. 82

HIS HONOUR

Mrs Templar, who is a senior constable of police, seeks weekly payments and medical and like expenses consequential upon a post-traumatic stress disorder (“PTSD”) with anxiety and depression.

On 23 February 2006 she witnessed, and unsuccessfully tried to prevent, her brother from stabbing their father to death at home (“the stabbing incident”). Her brother was later found to be mentally incapable of standing trial for murder.

It is submitted that the circumstances of her actions, both during and after the stabbing incident, were such that she has suffered a psychiatric injury, or injuries, arising out of or in the course of her employment.

She has had periods of total incapacity, part-time and full-time return to work until resuming full-time alternative employment from 17 December 2007.

The later periods of incapacity prior to 17 December 2007 raise separate and further issues of causation, injury and incapacity to those arising in respect of the period immediately after the stabbing incident itself.

There would appear to be no entitlement to weekly payments because of her ‘current weekly earnings’ from 17 December 2007 at this stage, though there may be a continuing entitlement to medical and like expenses.

In February 2006 she was stationed at the Keilor Downs Police Station on general police duties.  She was then single and living with her parents and brother at Hillside.  She said her brother, Daniel, had had a history of diagnosed drug induced psychosis.  He weighed about 130 kilograms compared to her relatively small frame.

On 23 February 2006 she was off-duty and asleep at home in the morning.  She woke to hear a noise in the hallway outside her room at about 7.15 a.m.  She went into the hallway to see her brother on top of her father stabbing him with a carving knife.  She jumped on top of him and gouged his eyes and tried to drag him off.  He bit her on the left fifth finger. He threw her over his shoulders.  She then tried again to gouge his eyes and drag him off.  Again he threw her away, stabbing her in the left lower calf as well.

Mrs Templar yelled at her mother to call ‘000’.  Somehow the knife became dislodged from her brother’s hand. She yelled at her mother to take it and put it away in a cupboard.  She told her mother to remember where she had put it.  Mrs Templar said she did this in view of her police training to maintain the continuity of the crime scene as well as to hide the knife from her brother.

All the time her brother was yelling at her father in foul language and telling him to die.  He walked out of the front of the house and was later seen by her to be down on all fours outside.

Her mother was having difficulty getting through to ‘000’, so Mrs Templar grabbed the phone off her and spoke to the police giving them details of her father's condition and the description and whereabouts of her brother.  She was concerned as to how her brother would react to the presence of the police when they arrived.

She could hear her father gasping for air.  She left the phone with her mother and got a towel. She used that to try to stop the bleeding and also to administer first-aid.  He died at the scene despite her efforts.

She and her mother stood inside the house near the door looking outside to see where her brother was.  The police telephoned the house to check on her brother's location. He was on his knees at the front of their house.

The police arrived and arrested her brother without a struggle.  Her mother wanted to go back through the house to get her handbag and cigarettes. However,
Mrs Templar was concerned about her mother walking through the crime scene and contaminating it.  She said that she wanted "to get a conviction against her brother".  She said she went into "police mode" at the time of, and after, the attack on her father in her use of defensive tactics, preservation of the weapon and crime scene and in her communications with the police.

When an ambulance arrived her wounds were tended.  She had bruising and abrasions apart from the slight stab wound to the leg.  They asked her to go to a hospital but she was concerned that she needed to be photographed, have nail scrapings taken and her bloodied pyjamas taken for forensic purposes as well.

She was taken to the Keilor Downs Police Station at about 8.00 a.m.  Unfortunately this was her own police station workplace.  The homicide squad was there.  She was photographed and had forensic samples taken.  She was still in her pyjamas and had no underwear.  The police brought her some clean clothes there.  A formal statement was taken at about 2.00 p.m.

She was then taken to a local clinic for her wounds to be dressed and given injections, had blood tests and prescribed medication, which she has not taken.

She did not work that day and went off work primarily for her physical symptoms at that stage.  Understandably, she also had anxiety and disturbance, avoidance issues, concentration problems and flashbacks.  She did not take any medication in view of her brother's experiences with drugs.

She began attending a psychologist, Anna Kerr, at the Clinical Services Branch of the Victoria Police.  Ms Kerr began counselling her for a PTSD.  While off work she lodged a worker's compensation claim form (which was later rejected) for physical and psychological injuries arising out of the violent physical confrontation ‘with an armed offender whilst off-duty at home’.

She seemed to make a good recovery and returned to full-time work at Keilor Downs Police Station.  Ms Kerr was not in favour of an early return to work and observed that Mrs Templar returned to work with limited assistance from Police Injury Management Services.

I accept that Mrs Templar went back to work at Keilor Downs Police Station with good intentions on the part of everybody involved.  However, having regard to the involvement of the members of that police station in the emergency call for the stabbing incident and its immediate investigation, another workplace (at least initially) would have been more desirable. As stated, she had been taken there immediately after the stabbing incident.

It may have been that Mrs Templar was going through a denial process or thought that she had recovered. No real explanation was given in evidence by her as to why she wanted to return early.

In any event, she began having further psychological problems on her return.  She returned on full duties, at least initially, without any prior discussion as to
non-operational duties.  She did some van work at the start, but then did mainly office and file work.

At the end of that initial return to work period she was even serving intervention orders.  She said that her fellow police had difficulty talking, and relating, to her in view of her experiences in and immediately after the stabbing incident.

She said that she was getting anxious, tired and was getting the shakes before going to work.  She was intolerant of other people's problems, which she regarded as petty, when they came into the police station.  She said she was getting worse emotionally.  In retrospect it was certainly not a good idea for her to be exposed to domestic violence issues by having her serve intervention orders.

Her change in personality and the difficulty with her workmates relating to her was confirmed by a number of police witnesses from the Keilor Downs Police Station.  She ceased work again on 7 June 2006 and lodged a further claim form on 15 August 2006 claiming a PTSD caused and contributed to by a return to inappropriate duties and lack of support from her employer.

This claim was initially admitted and she began to receive weekly payments, though these were later terminated in January 2007 by a further Notice
re-opening the issues of liability.

Towards December 2007 she began to see a rehabilitation counsellor and was assessed for return to work.  She eventually returned to work on non-operational work at the Keilor Downs Police Station on 5 March 2007, working three days per week for five hours per day and progressed later to three days full-time work by December 2007.

On 17 December 2007 she was transferred to a full-time position in the Police Emergency Support and Welfare Service.  She is there at least for three years and was able to stop all psychological treatment in December 2007.

Overall the plaintiff impressed me as an honest straightforward witness who did not exaggerate in any way.  As stated she initially went back to work, against the advice from her psychologist, to her unfortunate detriment.

I find that at all times she has done her best to minimise any time off work or limited to part-time duties.  In fact, in its submissions the defendant takes no issue with the claimed periods of incapacity or the provision of reasonable medical and like services.

There is no doubt that her father's murder and the assault on her by her brother play a highly significant role in her PTSD and subsequent incapacity for work. However, there was some blurring between her personal life and professional life in and after the events of 23 February 2006.

It is that blurring which counsel for Mrs Templar states gives rise to a valid claim for compensation pursuant to the Accident Compensation Act, for the initial period of incapacity at the very least.

The fact that she has applied for and obtained compensation pursuant to the provisions of the Victims of Crime Assessment Act arising out of the stabbing incident does not disentitle her from workers compensation (see Victims of Crime Assistance Act s.61).

The claims for the later periods of incapacity are based on a combination of, or alternative, bases being the stabbing incident combined with the circumstances of her returns to work, especially in the period of just three weeks from 14 May to 7 June 2006.

On any view of it, in the later periods she was suffering from pre-existing psychiatric injury being a PTSD when she made her initial return to work. It is said this condition was aggravated, accelerated or exacerbated by her duties, her treatment by fellow workers and indeed her very presence at the police station to where she was taken in a bloodied and dishevelled state immediately after the stabbing incident.

Both her treating psychologist and the defendant's psychiatrist believe that it is really a question of law as to whether her PTSD, for the initial period of incapacity at least, comes within the provisions of the Accident Compensation Act (’The Act”).

They also agree that her early return to work in the circumstances that I have previously described played a further part in her medical condition, her PTSD and subsequent incapacity.  Ms Kerr described the return to work at the workplace triggering and continuing to trigger her PTSD, whereas Associate Professor Mendelson said that the early return to work had exacerbated her symptoms for several months. Later he confined this to four months.

On either alternative there would appear to be some significant contributing factor by her employment towards her further injury and incapacity after 7 June 2006.

However, there is always the difficulty of determining the length of time that the early return played such a role, especially as she was paid weekly payments until 8 January 2007 when they were terminated by way of the Notice of Termination.

I turn now to the main issue as to whether her actions and involvement in the stabbing incident itself, and in the immediate period for the balance of that day should be seen as being arising out of or in the course of her employment as a police officer.

Certainly s.14(4) of the Act deems police members to be workers for the purposes of the Act "in respect of the performance of all duties" etc. However, there still must obviously be a work related injury for there to be an entitlement to workers compensation.

Her original and official oath of office was tendered in which she swore that "she will see and cause Her Majesty's peace to be kept and preserved".

Also Chapter 201.1 of the Ethical Standards of the Victoria Police Manual was tendered.  It states in Paragraph 5.1 that:-

"A sworn employee is always liable for duty whether; - in uniform or plain clothes - . .(or) not engaged in specific duties - . . (or) on leave or not."

Also he or she:-

“.. is bound to act in the execution of their duty . . whenever circumstances demand such action, ."

At the time of the stabbing incident, and immediately thereafter, Mrs Templar was not formally on duty. The Notice of Rejection stated that she was involved in "a domestic incident" at the time and thus outside the scope and area of her employment.

When this case was opened I put a fact scenario to counsel for the defendant that if she had been off duty at a shopping centre and intervened to stop a stabbing incident between two strangers and suffered similar physical injuries and PTSD, he submitted that such a scenario would fall outside the provisions of the Act in view of her being off duty.

However, I note the provision of s.2 of the PoliceAssistance Compensation Act.  If a person is injured while assisting a police officer in preserving the peace or otherwise apparently acting in the execution of that member's duty as a member of the police force, that person is entitled to compensation in accordance with the Accident Compensation Act.  No distinction is made as to a police member being formally on duty.

Thus, if a person was injured in the shopping centre scenario I put to counsel, he or she would be entitled to accident compensation benefits. However, the police member would only be entitled to less generous benefits under the Victims of Crime Assistance Act, according to counsel for the defendant, rather than AccidentCompensation Act benefits as well.

Both counsel supplied detailed and helpful written submissions.  As both counsel point out, there have been a large number of cases over the years as to whether injuries that have occurred while doing something part of, or incidental to, service are compensable.

In particular, the incidental type cases have been the subject of judicial consideration in many and varied types of fact situations (see, Boyes & O'Loughlen Accident Compensation Victoria para. s.82.2.1).

Mr. Justice Dixon stated in Whittingham v. The Commissioner of Railways 46 C.L.R. 22, in considering what is incidental to service the sufficiency of the connection between the worker's employment:-

". . and what he was doing at the time he was injured, could only be a matter of degree in which time, place, practice and circumstances, as well as the conditions of employment had to be considered."

In later cases, as Mr Trigar points out, the test as to whether an injury has been sustained in the course of employment ultimately depended whether the worker was doing something which he was reasonably required, expected or authorised to do in order to carry out his duties (see Danvers v. Commissioner of Railways (NSW) 122 C.L.R. 529,536).

I also agree with the defendant's submissions that no undue reliance should be placed on the fact that the plaintiff was, as a policewoman, liable to be called upon to perform duties at any time.  As stated by Justice Webb in Commonwealth v. Wright 96 C.L.R. 536 at p. 551, the fact that such an employee is injured, for example, while taking part in a hotel brawl would never mean that there is a worker's compensation entitlement on the grounds that he or she is always in employment or service.

Referring back to the dicta of Mr Justice Dixon, it is really a matter of degree taking into account time, place, practice and circumstances as well as the conditions of employment.

In considering the period of incapacity immediately after the stabbing incident I was struck by the degree the plaintiff had entered into "police mode", to use her own words.  She utilised her police training to gouge her brother's eyes, dealt with ‘000’ and the police as to the whereabouts and attitude of her brother, preserving the crime scene and weapon, rendering first-aid and focusing on preserving her forensic state.

Again to use her own words she was keen to ensure "a conviction against her brother".  In her actions in the morning and early afternoon on 23 February 2006 she became "liable to and went on duty" as it was, pursuant to her sworn and lawful obligations.

The defendant's submissions and Notices place too much emphasis, in my opinion, on the domestic and family aspects of the stabbing incident.  That is not to say that the unfortunate death of her father at her brother's hand did not play a significant role in her PTSD.

No doubt the family aspects of the stabbing incident have meant that the degree and period of PTSD has been extended and prolonged.  However, I do not think that the personal and professional aspects of the stabbing incident can be separated out like oil and water. Rather, it is like trying to unscramble an egg.

In the present case the plaintiff dutifully and appropriately carried out her obligations despite the obvious threat to her own safety and the fact that her own brother was involved in the stabbing incident as an assailant.

The defendant places great reliance as to whether she would have been disciplined if she had not done what she did on the day as well as the lack of reference to her role as a police officer in the police statement and medical histories.

That is not to the point. She did act appropriately and professionally on the day.  The police statement and initial history were not given for workers compensation purposes.  Those documents were part of her police duties and for initial treatment of her physical and immediate psychological injuries respectively.

I also find that alternatively her injury arose out of her employment as well.  I have already referred to her actions at the time of, and immediately after, the stabbing incident.

In those circumstances the injury was "intimately connected with aspects of the employment", as stated by Mr Justice Ashley in Popovski v. Ericsson [1998] VSC 61 at para. 50, such as lead to the conclusion that the injury did arise out of her employment as well.

I got the strong impression that the plaintiff would have responded in the same way if a similar incident had occurred while she was off duty and saw two strangers involved at a shopping centre in a similar way.

In looking at the period of incapacity immediately after the stabbing incident, the issues of the involvement of police officers from her police station and her attendance at Keilor Downs are largely irrelevant.

However, those factors are important in considering the later periods of total and partial incapacity (or no current or current work capacity).

On any view of the facts, she returned to work too early, to an inappropriate police station and probably as well to at least some inappropriate duties.  Even Associate Professor Mendelson agreed that the return to work in those circumstances exacerbated her PTSD.

In cross-examination he stated that such examination would have lasted ‘several’ months and later specified four months.  I have difficulty in accepting on what basis his opinion on the exacerbation was so restricted in time and extent.

The plaintiff on her return to work on the second occasion after the stabbing incident continued to work on restricted hours and restricted duties. This was not attacked as being inappropriate by the defendant.  She continued to undergo appropriate psychological treatment by Ms Kerr and later another psychologist after Ms Kerr left the employment of the Victoria Police.  She was later treated by that psychologist Ms Linehan at her employer's clinic.

I accept the evidence of Ms Kerr that the fact of returning to work at the police station where she was taken on the date of the stabbing incident and being exposed to personnel there who had been involved in that incident, provided a continuing trigger to her underlying and pre-existing PTSD, whatever may have been its cause.

Such a ‘triggering’ was an aggravation or acceleration of that pre-existing condition and her continuing employment there was obviously a significant contributing factor.

Such a continuing presence at that workplace inhibited her recovery from the PTSD. It was really not until she was able to obtain appropriate employment outside Keilor Downs Police Station that she was able to properly resume her pre-injury work hours at least.

She was able also to cease psychological treatment in December 2007 as well, though I accept that she still may require occasional psychological treatment from time to time.

Her employment, and more particularly work at the Keilor Downs Police Station, continued to play a significant contributing factor to her PTSD over the period up till at least her change in duties to her present employment.

I have already found on the balance of probabilities that her period of incapacity immediately after the stabbing incident was materially contributed to by an injury that occurred in the course of employment in that it included the doing of what was incidental to the performance of her work and what was reasonably required, expected or authorised to carry out her duties (see Danvers v. Commissioner of Railways (NSW) (supra.) for the reasons I have also previously set out.

Again those factors also played a part in her later periods of incapacity, though she also has an entitlement to compensation because of the aggravation and acceleration of that underlying and pre-existing PTSD, whatever its initial cause.

She is entitled to weekly payments for the periods of incapacity at the appropriate rates up until her transfer away from Keilor Downs Police Station, less the periods already paid.

Reasonable medical and like expenses are also liable to be paid to date as well, despite the fact that she ceased psychological treatment as at December 2007.

In view of the possible issues of ‘reasonableness’ and the uncertainty of the amounts claimed I will reserve those amounts.