1. The Certificate of Determination dated 1 June 2025 is confirmed.
2. Pursuant to rule 132 of the Personal Injury Commission Rules 2021, I order that the names of the parties to this dispute be de-identified.

WORKERS COMPENSATION - whether the appellant's exposure to traumatic events during the course of his employment caused a psychological injury - State of New South Wales v Culhana [2025] NSWCA 157 - adverse credibility finding and its effect on medical evidence and lay evidence - Lee v Lee [2019] HCA 28 - reliance on video evidence

CLA v BUU [2025] NSWPIC 259

1. CLA (appellant) entered the Police Academy in 2018. After graduating he worked as a general duties police officer and as a member of a specialised team. During the five years that the appellant worked for the respondent, he experienced a number of stressful, harrowing situations which he alleges caused him a psychological injury in the form of post-traumatic stress disorder (PTSD), a major depressive disorder and a severe alcohol disorder. These conditions, the appellant alleges, were due to the nature and conditions of his work as a police officer. The appellant points to two incidents in particular as being very traumatic and being significant causes of his asserted condition. I set these incidents out in detail later in this decision.
2. The appellant was involved in a serious incident on 22 January 2023 whilst in the course of his duty as a police officer. The incident involved the use of excessive force against a vulnerable member of the public by the appellant and his colleague, a second police officer.
3. The appellant attributes the exposure to trauma, especially the two incidents, as causing him to behave as he did on 22 January 2023.
4. This incident led to the appellant's paid suspension from duty by Notice dated 23 February 2023.[1]
5. The appellant received a further Notice advising him that the Commissioner of Police had formed a view that his conduct justified his dismissal and the institution of criminal proceedings.[2] This Notice continued the suspension except that from 17 March 2023, the suspension was now without pay. The appellant subsequently resigned from his employment with the respondent effective 4 August 2023.[3]
6. The appellant made a claim for workers compensation benefits on 17 March 2023, which is the same date that his suspension became unpaid. By Notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) issued on 9 June 2023, the respondent's insurer declined the claim.[4] By letter dated 4 August 2023, solicitors for the appellant sought a review of the decision contained in the s 78 Notice.[5] On 17 August 2023, the respondent issued a Notice under s 278 of the 1998 Act upholding the decision to decline the claim.[6]
7. The appellant and his colleague were charged with criminal offences arising from the events of 22 January 2023.
8. The appellant subsequently contested the respondent's decision to decline the workers compensation claim in the Personal Injury Commission (Commission). The application was heard over four days before Member G Whiffin,[7] with the Member delivering a seventy-four page written decision on 11 June 2025.
9. The Member entered an award in the respondent's favour.
10. The appellant appeals from that decision.

1. Section 52(3) of the Personal Injury Commission Act 2020 (2020 Act) provides:

"(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing."

1. Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed 'on the papers' without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

1. There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

1. The task before the Member was to determine whether, pursuant to s 4(b) of the 1987 Act, the appellant had sustained a psychological injury arising out of events he witnessed during his employment with the respondent. If so, was there a defence available to the respondent under ss 11A(1) or 14(2) of the 1987 Act. In the absence of a defence, the final issue for determination was whether the appellant was entitled to ongoing weekly compensation benefits.
2. The Member ultimately found that the appellant had failed to satisfy that he had sustained a psychological injury in accordance with s 4(b) of the 1987 Act. In coming to this determination, the Member considered the lay and medical evidence, together with oral evidence given by the appellant, providing detailed summaries.
3. The Member summarised the appellant's three statements dated 11 August 2023,[8] 20 November 2023[9] and 6 May 2024.[10] In these, the appellant denies having any pre-existing psychiatric history or history relating to melancholia, mania, hypomania, psychosis, obsessions or compulsions. He states that throughout his employment he witnessed several traumatic events, specifically referencing two; a stabbing and a motor vehicle accident which is detailed at [75]-[78] below. He recalls the motor vehicle accident as being "extremely gruesome and distressing" and states that as a result he suffers flashbacks on a daily basis. The appellant states he was not provided with any emotional support, debriefing or counselling from the respondent following each event, however in January 2019 and February 2020 he independently attended counselling sessions.
4. The appellant states that his marriage broke down in April 2022 which he attributed to "declining mental health". The Member quoted the appellant's remarks acknowledging that he did not disclose to the respondent his declining mental health for fear of having his firearm removed, being isolated, judged by colleagues and being placed in non-operational duties.[11]
5. The appellant states that on 17 March 2023 his general practitioner, Dr Hamad, referred him to psychologist, Mark Benad and psychiatrist, Dr Sakar whom he consulted in May 2023.
6. The appellant recalled the events that occurred on 22 January 2023 while carrying out his duty as a police officer.[12] The appellant said he and his partner were required to detain a woman who he observed was suffering psychotic symptoms and was scheduled under the Mental Health Act. He said it took them approximately 15 minutes to detain the woman. He was subsequently criminally charged in relation to the incident and was "suspended without pay as a result of the alleged misconduct". The appellant denies the incident on 22 January 2023 was the whole or predominant cause of his psychological condition. He said his mental health had been deteriorating since late 2018.
7. In the appellant's second statement dated 20 November 2023 he recalls the counselling sessions he had in January 2019 and February 2020. He said he was unable to recall the name of the counsellor he consulted in January 2019, however he attended Difference Psychological clinic within Southwest Wellness Centre in February 2020. He did not find either session helpful. He did not continue treatment for fear that the respondent would find out and reprimand him by confiscating his gun and assigning him to a desk job.[13]
8. In his third and final statement dated 6 May 2024, the appellant refers to the nightmares, flashbacks and distressing memories he disclosed in his earlier statement and says that these nightmares relate to the traumatic incidents he witnessed as a police officer, and he does not experience distressing memories from the alleged misconduct on 22 January 2023.
9. The Member referred to the appellant's ex-wife's statement dated 21 November 2023[14] who said she first met the appellant in January 2011, and they married in November 2018. She described the appellant as being social, well-liked, kind and compassionate when they first met. However following his employment as a police officer, she observed that there was a shift in his demeanour and character. He became cold and developed sleeping issues. She said that the motor vehicle accident incident, one of the two incidents the appellant heavily relies upon, had an extremely large impact on the appellant's mental health. His alcohol consumption increased significantly, his sleeping issues worsened, he became reluctant to socialise despite always being a social person and became emotionally detached. She recalls he attended counselling however did not continue treatment for fear that his employer would find out. She said that she and the appellant attended marriage counselling "to address the concerns ... with our marriage due to [the appellant's] mental health" but they only attended one session. She said she and the appellant separated in April 2022 after their relationship became loveless due to the appellant's mental health issues.[15]
10. The Member next summarised the appellant's father's statement dated 13 November 2023[16] in which he recalls the appellant as being independent, selfless, compassionate and community-minded prior to his employment with the respondent. However immediately after the appellant's employment commenced, his father noticed a change in the appellant. The father also referred to the motor vehicle accident incident, and said that following the incident the appellant became quiet, withdrawn, isolated and began to drink excessively.[17]
11. The Member summarised the respondent's lay evidence, which included several statements and seven P902 forms which report injuries sustained by the appellant throughout the course of his employment with the respondent.
12. The Member summarised each of the P902 forms[18] which include details of the motor vehicle incident on 28 September 2018, the incident on 22 January 2023 and the report on 17 March 2023. The latter describes the appellant as having no capacity to work as a result of "depression/anxiety from exposure to traumatic police work."[19]
13. The Member referred in detail to the statement of detective inspector Gary Morris dated 18 April 2023[20] who was involved in the respondent's investigation into the incident on 22 January 2023. Following the investigation, the detective inspector arranged criminal charges to be authorised against the appellant and his partner. He states that on 17 March 2023, the appellant was suspended from duty without pay.[21] The Member refers to the detective inspector's second stated dated 6 June 2023[22] where he describes what can be seen from the video footage obtained from the appellant and his partner's body worn cameras and CCTV footage obtained from a nearby business premises in relation to the 22 January 2023 incident.[23]
14. The Member also referred to the statement of sergeant Arron Lindsay employed by the respondent whom the appellant reported to.[24] The sergeant describes his relationship with the appellant as positive. The Member quoted a passage directly from the sergeant's statement:[25]

"With the exception of the events on 28 September 2018, detailed above at P902 Incident Reporting Form 238291, which involved a significantly traumatic event and which was pro-actively monitored by Police in relation to the [appellant's] welfare and which resulted in no approach that I am aware of by the [appellant] for any psychological assistance from any of the services provided by the [respondent], there has never been any form of struggling disclosure made by the [appellant] prior to 17 March 2023 ..."

1. The sergeant said that he isn't aware why the appellant would not disclose any mental health concerns to him or request support if he was struggling, given their positive working relationship.[26]
2. The final statement summarised by the Member and relied upon by the respondent is that of Human Resources Duty Officer Daniel Wiggins who was employed by the respondent. He states that he was not aware of any approach made by the appellant for any services in relation to mental health nor any concerns relating to his mental health.[27]
3. The Member referred to a document titled "Claimant Questionnaire - [appellant]" which appeared to contain written questions put to the appellant by an investigator, and the appellant's written responses. The document was not signed by either person. The Member said he did not intend to give the document any weight given it was not signed nor was there any information from the respondent as to the creation of the document or why it should be considered as statement evidence in circumstances where it was not signed by the appellant. The Member noted that if aspects of the document were put to the appellant during oral evidence, he would have regard to those aspects in the context of that oral evidence.[28]
4. The Member then summarised other factual evidence relied on by the respondent which included, inter alia, a USB stick evidencing video footage of the 22 January 2023 incident (which was shown to the appellant during his oral evidence), the suspension with pay notice, the suspension without pay notice and the appellant's resignation form.[29]
5. The Member summarised the medical evidence relied upon by both the appellant and respondent at reasons [72]-[116]. There is no contest about the Member's summary of this evidence. The contest dealt with in Ground Four of the appeal relates to the appropriate weight to be given to this evidence.
6. The Member quoted at some length the appellant's oral evidence during the hearing on 16 September 2024.[30] The appellant was questioned on de-escalation training techniques taught to him by the respondent, the incident that occurred on 22 January 2023 and why he did not report his alleged psychological symptoms prior to the 22 January 2023 incident. The Member quoted part of the oral evidence given by the appellant.
7. The Member noted the appellant was vague in responding to questions about the one session of counselling he had in January 2019 and he was unable to recall completing a course entitled "Mental Health STOPAR 2020-21" on 16 April 2021 which, it was put to the appellant, was a course for dealing with situations involving persons with mental health issues. The appellant gave oral evidence that he complained to his doctor, Dr Hamad, about emotional issues however he was unable to recall if he implicated work stressors. The appellant confirmed that prior to 17 March 2023, he had not taken any time off work as a result of emotional problems.
8. The Member then considered the submissions of the parties. It was the appellant's case that due to several traumatic incidents to which he was exposed throughout the course of his employment, in particular the stabbing incident and the motor vehicle accident incident, he suffered a psychological injury in the form of post-traumatic stress disorder. The appellant denied the incident on 22 January 2023 and subsequent disciplinary and criminal events were, in any way, causative of his injury.[31]
9. The appellant relied on the statements of his father and ex-wife who he says were both able to give evidence as to the change in the appellant after he commenced employment with the respondent. The appellant said his ex-wife's evidence confirmed he was having nightmares and sleeping issues which commenced well before the 22 January 2023 incident.[32] The appellant submitted there were no real inconsistencies in the statements, and the statements were "enormously persuasive and probative".[33]
10. The appellant submitted that he did not disclose his mental health issues with the respondent for fear it would be prejudicial to his career. The appellant submitted that the absence of psychological treatment does not mean there was no psychological injury. Following the traumatic incidents, he was managing his psychological condition as best he could.[34] The appellant described his form of delivery during oral evidence as 'stilted', submitting this was understandable given the mental health issues.[35]
11. The appellant submitted that the medical evidence of Drs Khan and Saker should be preferred in respect of their analysis of the 22 January 2023 incident, being that an undiagnosed mental illness contributed to his poor judgement and his actions on that particular day were indicative of the appellant not being mentally well. The appellant submitted that the medical evidence of Dr Goodison should be afforded less weight as the doctor was not provided with any evidence from the appellant's treating medical practitioners nor the statements from the appellant's ex-wife and father and thus, did not have a "full understanding of the factual and clinical background", particularly the motor vehicle accident incident.[36] The appellant submitted the reports of Drs Khan, Saker and Hamad were provided in fair climate.[37]
12. The appellant submitted that he had no residual work capacity since at least 4 July 2023, the day when his claim for weekly benefits compensation commenced, as opined by Drs Khan and Saker.[38]
13. The Member summarised the respondent's submissions. It was the respondent's case that a commonsense approach ought to be taken and that despite the stabbing incident and the motor vehicle incident, the appellant was still able to work up until 17 March 2023, when he was suspended from his employment without pay and charged with criminal offences.
14. The respondent submitted there were inconsistencies in the ex-wife and father's statements. It argued the ex-wife's statement was too simplistic and her evidence that the appellant had marriage counselling due to his mental health was inconsistent with the counselling records that do not disclose any work trauma.[39] Likewise, the respondent submitted the father's evidence was inconsistent with the statements of the appellant and his ex-wife.
15. The respondent referred the Member to the P902 forms, highlighting that the majority of the forms were completed by the appellant, apart from the form reporting the motor vehicle accident incident which was completed by the appellant's supervisor, arguing that this indicated an interest in the appellant's mental health that is contrary to the appellant's evidence. The respondent noted the P902 form in relation to the 22 January 2023 incident failed to disclose what actually happened.
16. The respondent submitted that its actions in respect of the 22 January 2023 incident were reasonable noting the appellant did not contradict the evidence given by detective inspector Morris in his statement dated 18 April 2023. The respondent submitted that the appellant was treated with procedural fairness, his mental health was monitored and the appellant and his legal representatives failed to raise any mental health concerns prior to the appellant's suspension without pay.[40] The respondent submitted that "the only inference to draw [is] that the suspension without pay is what is now informing the decision to claim workers compensation." The respondent submitted that the appellant failed to disclose any mental illness to the respondent prior to 17 March 2023.[41]
17. In relation to the medical evidence, the respondent submitted that the evidence of Dr Khan should be afforded no weight for a number of reasons, including that the history taken by the doctor in relation to the 22 January 2023 event ignored what actually occurred and which led to the disciplinary and criminal charges against the appellant. The respondent submitted that Drs Khan, Saker and Hamad all noted the appellant to be detailed and co-operative. The respondent said this was inconsistent with Dr Goodison's view who found the appellant to be evasive, vague, unco-operative, and inconsistent. The respondent submitted that the Member should consider Dr Goodison's description as accurate given the similar manner in which the appellant gave oral evidence.[42]
18. The respondent submitted Dr Goodison's reports should be given more weight than those of Drs Khan, Saker and Hamad, as Dr Goodison's path of reasoning is far more explanatory and the doctor is thorough and informed in the material provided to her. The respondent submitted that while Dr Goodison concedes the possibility of the appellant having post-traumatic stress disorder, she concludes it is directly due to the disciplinary and criminal action taken against him following the 22 January 2023 incident.[43]
19. The respondent finally submitted that the appellant's bank statements portray the appellant as continuing to lead a busy lifestyle which is inconsistent with him having an ongoing incapacity to work.[44]
20. The Member referred to Nguyen v Cosmopolitan Homes[45] noting that for the appellant to be successful in his claim, he had to "satisfy his onus of proof that the traumatic incidents were causative of a psychological injury which he has sustained" and the Member had to feel an actual persuasion. The Member said, "An acceptance of the [appellant's] statement and oral evidence is crucial if I am to be persuaded by him that he has satisfied his onus of proof."[46]
21. The Member found that the oral evidence of the appellant, which was also available to the Member by video and audio recording, was "evasive, vague, confusing and self-serving. His demeanour was one of unhelpfulness, he was reluctant to make reasonable concessions, and he often engaged in questioning exchanges with the respondent's counsel." The Member did not accept the appellant's description of the oral evidence as being "stilted" or that the way in which he answered questions was to be careful.[47]
22. At [181]-[182] of the reasons, the Member provided particular examples of the oral evidence given by the appellant which he found to be vague, misleading or untruthful. The Member said at reasons [183]:

"I am not persuaded by the [appellant's] statement and oral evidence. There were some untruths told, as well as evasive, misleading, and unhelpful evidence given. In my opinion, there needs to be some corroborative evidence to the [appellant's]."

1. The Member then referred to Malco Engineering Pty Ltd v Ferreira[48] and Handley JA's commentary in respect of the requirement for some corroborative evidence to the appellant's. The Member then turned to the lay evidence of the appellant's ex-wife and father however found that both statements lacked detail prior to 22 January 2023 and agreed with the respondent's submission that they were too simplistic.[49]
2. The Member found that the only corroboration between the appellant's evidence and the statements of the ex-wife and father was that, following the traumatic incidents, the appellant experienced sleeping issues, began drinking alcohol daily and developed symptomatology which included being unhappy, negative, lacked drive, quiet, isolated and withdrawn.
3. The Member then considered whether the symptomatology experienced by the appellant was, by itself, sufficient for the Member to find a psychological injury, noting the appellant did not require any time off work or undergo any specific treatment prior to 17 March 2023, apart from the one marriage counselling session and vague information about a session in January 2019. The Member was of the opinion that the symptomatology referred to in the statements was undermined by several factors including the appellant's failure to report his symptomatology to the respondent and that the clinical notes from Southwest Wellness Centre on 19 January 2021 record details of marital issues, and apart from one point referring to work-related trauma, the DASS 21 questionnaire completed by the appellant records no psychological symptomatology at all, and the relevant assessment notes of the counsellor records no occupational triggers.[50]
4. The Member accepted that the appellant was exposed to traumatic incidents during the course of his employment with the respondent, however noted that prior to 17 March 2023, he did not require any time off work due to emotional problems, nor did he need treatment for mental health issues, apart from those two previously noted counselling sessions. The Member did not accept the appellant's evidence that he complained to Dr Hamad of mental health issues prior to 17 March 2023.[51]
5. The Member then considered whether the medical evidence was given in a fair climate as summarised by Snell DP in ACW v ACX.[52] The Member said it was apparent that in giving his opinion, Dr Khan largely relied upon the history given to him by the appellant of his symptomatology prior to 22 January 2023. Given the Member's previous findings that the appellant's evidence was not reliable, the Member found that Dr Khan's evidence was not given in a fair climate. The Member was also of the view that Dr Khan failed to sufficiently consider "what happened to the [appellant] from 22 January 2023 to 17 March 2023, in circumstances where the [appellant] only first sought treatment for mental illness on 17 March 2023."[53] Consistent with the Member's findings regarding Dr Khan, the Member concluded that Dr Saker's evidence was also not provided in a fair climate.[54]
6. In relation to Dr Hamad's evidence, the Member noted the doctor was of the view that the appellant's incapacity was a combination of both the traumatic incidents and the disciplinary proceedings and criminal proceedings against him following the 22 January 2023 incident, however, the doctor failed to explain why the traumatic incidents were causative when he had not reported them to him prior to 17 March 2023.[55]
7. The Member ultimately gave significant weight to the opinion of Dr Goodison and concluded that her evidence was provided in a 'fair climate' as it was evident she was provided with all the necessary information to form her opinion. The Member noted that Dr Goodison experienced similar difficulties as the Member when questioning the appellant. The Member concluded Dr Goodison conducted an extensive mental health examination and her opinion was detailed and reasoned. After reviewing the medical evidence of Drs Khan, Saker and Hamad together with the statements of the appellant's ex-wife and father, Dr Goodison was of the opinion that the appellant possibly had post-traumatic stress disorder however the decline in his mental state was directly due to the disciplinary action taken against him.[56]
8. The Member accepted Dr Goodison's opinion that after considering all the evidence, the appellant did not endorse post-traumatic stress disorder symptoms and as a result, the Member was unable "to find that the [appellant] suffered a psychological injury as a result of his exposure to the traumatic incidents."[57] The Member was not satisfied that the appellant had discharged his onus of proving he "sustained a psychological injury as a result of his exposure to traumatic events."[58]
9. The Certificate of Determination issued on 11 June 2025 records:

"1. The [appellant] has failed to satisfy his onus of proving that he sustained a psychological injury (in accordance with s 4 (b) of the Workers Compensation Act 1987 (the Act)) arising out of traumatic events which he experienced during the course of his employment with the respondent.

1. There will be an award in favour of the respondent in relation to the claims made by the [appellant] for weekly benefits compensation and expenses pursuant to s 60 of the Act.
2. In accordance with cl 132 of the Personal Injury Commission Rules 2021, I order that the entirety of this publishable decision be de-identified before it is published."

1. The appellant relies on the following six grounds of appeal.

Ground One: The finding that the appellant was not injured in the course of his employment as a result of traumatic events was wrong in fact.

Ground Two: The finding that the appellant was not injured in the course of his employment as a result of traumatic events was wrong in law.

Ground Three: The Member erred in fact and law in failing to find that the appellant was incapacitated as a result of an injury caused as a result of his exposure to traumatic events.

Ground Four: The Member failed to properly apply or give weight to medical evidence.

Ground Five: The Member failed to give any or any sufficient weight of the appellant's fear of disclosure and stigma.

1. Section 58(1)(a) of the 2020 Act requires that:

"(1) The Commission must cause details of the following to be published in accordance with the Commission rules -

1. The Personal Injury Commission Rules 2021 (Rules), at r 132 allow for de-identification or redaction of publishable decisions as follows:

"132 De-identification or redaction of publishable decisions

(1) The Commission or the President may, of their own motion or on the application of a relevant person, direct either or both of the following -

(a) that all or part of a publishable decision be de-identified before it is published,

(b) that part of a publishable decision be redacted before it is published.

(2) An application for a direction may be made during, or after the completion of, the proceedings in which the publishable decision is issued.

(3) An application for a direction is to be made to -

(a) for proceedings being heard by the Commission that have not been completed - the Commission, or

(b) for other proceedings that have not been completed - the President, or

(c) for proceedings that have been completed - the President within 7 days after the publishable decision is issued.

(4) In determining an application for a direction, the Commission or the President is to have regard to the following matters -

(a) the objects of the PIC Act and enabling legislation and, in particular, the object that the Commission be open and transparent about its processes,

(b) the prevention of prejudice to the proper administration of justice,

(c) the safety, health and wellbeing of a person affected or named by the publishable decision,

(d) the views of any other party to the proceedings,

(e) whether it is necessary in the public interest for the direction to be given and whether the public interest in giving the direction significantly outweighs the public interest in open justice.

(5) If the Commission grants an application for a direction under subrule (3)(a), the President may, despite the direction of the Commission, direct that the publishable decision be published without the de-identifications or redactions directed by the Commission or with different de-identifications or redactions.

publishable decision means a decision details of which are required to be published by section 58 of the PIC Act.

relevant person, in relation to an application for a direction, means -

(a) a party to the proceedings in which the publishable decision is made, or

(c) another person the Commission or the President considers to have a sufficient interest to make the application."

APPLICATION FOR DE-IDENTIFICATION UNDER RULE 132 IN THE APPEAL PROCEEDINGS

1. Before the Member, the respondent made an application for the proceedings to be de-identified. The basis of the application was the existence of criminal proceedings involving the appellant which would traverse some of the same factual matters to be decided in this application. The criminal proceedings related to the events of 22 January 2023. The appellant consented to the application.
2. The Member granted the application.[59] Order 3 is not the subject of challenge on appeal.
3. The application for de-identification has been renewed on this appeal. Both parties to the appeal submit that the de-identification order ought be made in the appeal proceedings.

1. Under s 58 of the 2020 Act, the Commission is obliged to publish details of its decisions.[60] The decision of the Member and this decision are both decisions as contemplated in s 58(1)(a) of the 2020 Act. The Rules provide relief from the s 58 obligation in r 132.
2. The Member made the order under r 132, specifically relying upon sub rules 4(b), (d) and (e).
3. The parties to the proceedings are both "relevant persons" for the purposes of r 132(6) of the Rules and this is a "publishable decision", as contemplated in sub rule 6. The prerequisites for the making of the order under r 132 are thus established.
4. Given the existence of the concurrent criminal proceedings and the views of both parties to the proceedings, the Member quite rightly made the order. For the same reasons, I will make the same order in the appeal proceedings. Additionally, were this order not to be made in the appeal proceedings, the effect of the Member's Order 3 would for all practical purposes be rendered nugatory.
5. I will adopt the same pseudonyms from the proceedings before the Member in respect of the appellant and respondent.

PRINCIPLES TO BE APPLIED IN PRESIDENTIAL APPEALS POST STATE OF NEW SOUTH WALES v CULHANA [2025] NSWCA 157

1. The five-member bench of the Court of Appeal delivered the decision in State of New South Wales v Culhana[61] which considered in detail the nature of an appeal under s 352(5) of the 1998 Act, disapproving what had been up until then the leading authority of Raulston v Toll Pty Ltd.[62] The Court of Appeal rejected what it described as the 'narrow' Raulston approach to the appellate function under s 352(5) of the 1998 Act, instead stating the correct approach in the following terms:

"Future appeals under s 352 should apply the approach in Warren v Coombes and Fox v Percy. Appropriate deference is to be given to members where their findings are based on evidence in respect of which they have an advantage (such as the kind identified in Lee v Lee at [55]) over the Presidential member hearing an appeal. But it is not sufficient for an appeal to be dismissed on the basis that an inference was 'open' to the member, as if the member were a jury and there was some evidence supporting it. If the Presidential member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it. Otherwise, the Presidential member will be dismissing an appeal but without fully addressing whether there is an error of fact, law or discretion."[63]

1. In Lee v Lee[64] the plurality said the following at [55] (citations omitted):

"A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'. Here, the trial judge's findings of primary fact were not disturbed. However, in material respects, the Court of Appeal found that the inferences that his Honour drew from those findings were wrong. Notably, the trial judge's finding that the driver was not wearing the seatbelt not only was contrary to each party's case but, if correct, on the Court of Appeal's analysis, would lead to the conclusion that there was no real prospect that the appellant was the driver. And the trial judge's acceptance of the RACQ's case, that the appellant had been pulled from the driver's seat to the passenger seat immediately behind in something less than 90 seconds, was, in the Court of Appeal's analysis, unlikely."

1. In terms of this appeal, I would make the following remarks. The appellant submitted statements in support of his application and was cross-examined at length before the Member on 16 September 2024.[65] The Member made express credit findings adverse to the appellant[66] based upon his oral evidence. Similar adverse findings with respect to the appellant's statement evidence were also made.[67] The Member confirmed that he was not persuaded by the appellant's statement and oral evidence.[68] With respect to the statement evidence, I am in as good a position as the Member to review and consider the evidence, drawing what I consider are the correct inferences or conclusions if I determine that the Member was in error. However, with respect to the oral evidence, clearly the Member does have an advantage over me having heard and watched the lengthy cross-examination of the appellant. With respect to this oral evidence and the Member's adverse findings, the appellate approach that I will follow is as described (above) in Lee v Lee at [55].

1. The appellant has filed two submissions in chief and has confirmed that he will only rely upon the grounds of appeal settled by counsel dated 21 July 2025. The appellant has sought leave to rely on these amended submissions due to the retirement of the counsel who appeared on behalf of the appellant at the hearing before the Member.[69] I have no difficulty in acceding to this request.
2. I will therefore only have regard to counsel's submissions in the appellant's case.
3. The appellant has placed great reliance on two incidents that he experienced in the course of his employment. The appellant relies on these to prove injury and secondly to explain his conduct on 22 January 2023. It is necessary to describe these three events in detail.
4. The first incident involved the appellant attending the scene of a stabbing. The victim had been stabbed approximately ten times and the appellant attempted to stem the bleeding by places his fingers in the wounds. The appellant was present when the victim died in front of him. The appellant states that he remained at the scene for about eight hours, whilst covered in the victim's blood.[70]
5. The second incident occurred in 2018. The appellant attended the scene of a motor vehicle accident which he describes as "... one of the most horrific and incomprehensible jobs that I have had to attend during my employment".[71] A passenger in one of the vehicles involved in the accident was a woman who at the time was pregnant with twins. The seat belt had severed the woman's abdomen and one of the twins was found in the footwell of the car, the remaining twin was still with the woman. The appellant placed the three bodies into the single body bag.
6. The appellant asserts that he has daily flashbacks about this episode and at the time was very distressed about what he observed.[72]
7. Finally, on 22 January 2023, the appellant was on duty with a colleague. The two officers were confronted by a naked, mentally unwell woman who was present on the side of a street. An altercation ensued. The appellant and his colleague both applied capsicum spray to the female on multiple occasions, including to her eyes, head and genital areas. The appellant's colleague, in the fracas that ensued, was filmed kicking the woman including in the face, dragging her by the hair, and striking her twice with his left hand.[73] The colleague also stomped on the woman's head. The appellant was filmed kicking the woman on six occasions to her upper body and torso.[74] Both men were suspended and were charged with criminal offences relating to this incident. Neither remain as officers with the respondent.

1. The appellant points to the Member's "finding" at reasons [185] which says the following:

"The corroboration which I receive from the statements in my opinion is limited to:

(a) following the traumatic incidents - the [appellant] experienced sleeping issues with nightmares, he began drinking alcohol daily, and he became reluctant to socialise - he became negative and unhappy, and he lacked drive - see the [appellant's] ex-wife's statement, and

(b) following the traumatic incidents - the [appellant] became quiet, withdrawn, and isolated, and he developed an alcohol problem - see the [appellant's] father's statement."

1. The appellant notes that the Member accepted that he had been exposed to traumatic events at work[75] but says that the finding at reasons [191] is inconsistent with what had been found at reasons [185]. Reasons [191] says:

"I also find that he did not need treatment for mental health issues prior to 17 March 2023, other than one session of marriage counselling and an inadequately explained counselling session in January 2019. Having regard to the clinical notes of Dr Hamad and my general reservations regarding the [appellant's] evidence, I do not accept that he advised Dr Hamad of any mental health issues prior to 17 March 2023."

The appellant says that it was not open for the Member to find the appellant had no need to seek medical treatment, having made the finding at [185].

1. The appellant points to the marriage counselling records dated 19 January 2021[76] as revealing a disclosure by the appellant that he had suffered work related trauma and that the counsellor had recorded a number of mental health symptoms.[77] The appellant relies on a remark recorded in the statement of Gary Morris dated 18 April 2023 as being in fact an expression of distress.[78]
2. The appellant complains that the Member's assessment of the evidence of his ex-wife and father was "unfair". The Member had found that the statements of these two witnesses "lack detail" and were "too simplistic".[79] The appellant says that his father describes the effect upon the appellant of attending the motor vehicle accident involving a woman who was pregnant with twins, which the appellant states had a significant effect upon him.[80]
3. In reply the respondent asserts that the principal complaint pursued by the appellant is that reasons [185] and [191] are inconsistent. The respondent then says that it is not explained why the alleged inconsistency is an error of fact or law.[81]
4. The respondent says that reasons [185] contains no "finding", rather it is evidence from the appellant's father and ex-wife which corroborated the appellant's evidence about the symptoms set out therein. The respondent says this corroboration is "limited" to those matters.[82] The respondent says that [185] needs to be read in context, namely the remarks at reasons [184] and the finding at [186]. The respondent says that while the Member found the statements of the appellant's father and ex-wife corroborative, they "lack detail" and are "too simplistic".[83] The respondent says the finding, which then appears at reasons [186], was that the Member could not find psychological injury based on this evidence. The respondent says this is the Member's evaluation of the evidence based on the father and ex-wife's statements as well as lack of evidence of any treatment or incapacity before 17 March 2023.[84]
5. The respondent also asserts that these two grounds are simply an invitation to disagree with the Member's evaluation of the evidence, by giving weight to other evidence such as the marriage counselling records. The respondent says that these records cannot be relied upon as symptoms observed by the counsellor and that they are not relevant to a diagnosis.[85]
6. The respondent says that these two grounds do not identify or establish any errors of fact or law.
7. The appellant filed no reply submissions to the respondent's submission.

1. Before turning to a consideration of the grounds of appeal, I would make the following statements of principle. Firstly, in considering the appellant's complaints, one must read the Member's decision as a whole.[86] Secondly, in Roncevich v Repatriation Commission,[87] Kirby J said that the courts should "... avoid overly pernickety examination of the reasons" and that the "focus of attention is on the substance of the decision and whether it has addressed the 'real issue' presented by the contest between the parties." This approach is consistent with the guiding principle contained in the 2020 Act.[88] Thirdly, in Australian Air Express Pty Ltd v Langford[89] McColl JA (Ipp and Tobias JJA agreeing) said the following:

"... it is not enough that an appellate court might have come to a different conclusion - before an appellate court will intervene the appellant must show error on the part of the primary judge".

In many respects, the approach taken by the Member was the exercise of a broad evaluative judgement of the evidence and the approach referred to in Langford is entirely apposite to this matter.

1. In my view, the essence of what the Member decided on the issues raised in these two grounds is found at reasons [186] where the following was said:

"I accept this symptomatology occurred, but the lack of detail in the statements leads me to question whether the symptomatology by itself is sufficient for me to find a psychological injury, especially as the symptomatology did not lead to the [appellant] requiring any time off work or specific treatment (other than one session of marriage counselling and an inadequately explained counselling session in January 2019) prior to 17 March 2023."

1. The Member then proceeds to consider the evidence of the appellant's father and ex-wife at reasons [188] as well as stating his views on Mr Morris's evidence and the marriage counselling records. Reasons [188] reads as follows:

"In my opinion, the significance of the symptomatology referred to in the statements from the [appellant's] ex-wife and father is undermined by:

(a) the [appellant] not reporting the symptomatology to the respondent - I note his submission at paragraph 144 above regarding his perception that reporting it would prejudice his career, but (especially having regard to my general reservations regarding his evidence) it seems to me that the lack of its reporting suggests that the symptomatology was not significant;

(b) the detailed reporting by the [appellant] in P902 forms (see paragraph 54 above) of other injuries sustained by him during the course of his employment with the respondent;

(c) the fact that neither the [appellant] nor his legal advisers raised any issues with Morris regarding his mental health during Morris' investigation into the 22 January 2023 incident, until 17 March 2023 after the [appellant] had been provided with suspension from employment paperwork - see paragraphs 56-57 above, and

(d) the clinical notes from Southwest Wellness Centre on 19 January 2021 (see paragraph 98(d) above) - which I find to be particularly instructive as they are the only documented notes in evidence regarding counselling undertaken by the [appellant] prior to 17 March 2023 - in essence, the notes deal with marital issues although they do at one point refer (without any detail of symptomatology at all) to work-related trauma - importantly, the DASS 21 questionnaire completed by the [appellant] does not allude to any psychological symptomatology at all, and the relevant assessment notes of the counsellor refer to the [appellant] as having no reported occupational triggers, having a 'good' mood, having no issues with concentration or memory, having no issues with sleeping, and having high energy and motivation - I do not accept the [appellant's] submission at paragraph 172(h) above."

1. The appellant relies on the marriage counselling records as revealing a complaint by the appellant of work-related trauma well before the events of 2023. The marriage counselling documents are dated 19 January 2021.[90] I have read these documents closely given the importance attached to them by the appellant. At ARD p 106, there is a checklist listing 21 separate 'feelings' which the appellant has answered. Every 'feeling' is answered by the appellant in the same way by circling the number '0'. The number '0' in this document is defined as "0 Did not apply to me at all - NEVER".
2. The next aspect of the records is a page described as "Mental Status Exam".[91] A fair reading of this document reveals that the appellant was, at the time the document was completed, (19 January 2021) not experiencing any symptoms whatsoever. It is true that in the box numbered 6 at ARD p 109, which asks "Have you gone through any upsetting events recently?", the box entitled "trauma" is ticked and the words "work related" are hand written to the right of this box. This entry in my view has very minimal probative value.
3. The next document in the counselling records is described as the "Initial Assessment Template" for the appellant. Apart from recording the marital issues, there is a section entitled "Mental health functioning".[92] None of the answers recorded as applying to the appellant reveal any mental health problems or symptoms. At ARD p 112, in answer to the question "Therapy goals", the answer is "None required - referred onto Relationships Australia for couples counselling".
4. Whilst the Member accepted the symptomatology expressed at reasons [185], he found that its significance was "undermined" for the reasons stated at [188]. While I do not read these grounds as directly challenging reasons [188], that paragraph is linked to what is challenged at reasons [191], and I will therefore consider that the complaint in these two grounds is wider than paragraph [191]. For the following reasons with respect to the marriage counselling records, I agree with the Member's assessment at both [188] and [191]. It is apparent that the appellant was, in the counselling records, answering the various questions in a manner which reveals his own views about his mental health, namely that there were no issues, no symptoms and therapy was "not required". The Member was completely correct in how he dealt with the marriage counselling records. No error in the approach has been identified.
5. In terms of the complaint about Mr Morris' statement,[93] the appellant refers to the incident recounted by Mr Morris at paragraphs [35]-[46] of the statement[94] as being an expression of distress. I would note that in this exchange, officers of the respondent were advising the appellant and his colleague of the complaint that had been made against them in relation to the events of 22 January 2023 and the actions being taken in response. That the appellant experienced distress in that circumstance is unsurprising but it does not prove injury in the sense asserted by the appellant. There is no error in terms of how Mr Morris's evidence was dealt with.
6. This leaves the Member's approach to the statement evidence of the appellant's father and ex-wife.
7. It is important to note that the Member considered this evidence because he had reached a view that he was not persuaded by the appellant's evidence, as "[t]here were some untruths told, as well as evasive, misleading and unhelpful evidence given."[95] This applied to both the appellant's statement and oral evidence. In short, the Member had significant reservations about the appellant's credit as a witness.
8. Consequently, the Member, quite correctly, would only accept aspects of the appellant's evidence if it was independently corroborated, hence his close consideration of the evidence of the appellant's father and ex-wife. The Member accepted that the symptomatology recorded in reasons [185] as observed by the father and ex-wife occurred[96] and that as a police officer, the appellant had been exposed to traumatic incidents.[97] However the Member found that the "lack of detail" in the statements could not assist in the actual finding of psychological injury. The Member went into some detail as to why this was the case at reasons [188]-[201] by reference to the lay evidence and the medical evidence, including the clinical records.
9. When the decision is considered as a whole, there is no error in the Member's approach. Rather, there was a careful process of fact finding and an evaluative assessment of the evidence. The appellant complains that the Member's characterisation of the father and ex-wife's evidence was "unfair". I should state that the Member did not disbelieve them, he just was not assisted by what they had to say for the reasons expressed by the Member. There is no error in this approach.
10. The appellant has not established error in Grounds One and Two, as a consequence, both grounds are dismissed.

1. This ground asserts errors of both fact and law in the Member's failure to find that the appellant was incapacitated as a result of injury resulting from his exposure to traumatic events.
2. The appellant states that the effect of the Member's findings from reasons [184]-[191] is consistent with the appellant having suffered injury within the meaning of s 4 of the 1987 Act. The appellant relies upon his exposure to the aftermath of the motor vehicle accident in 2018 which was a "significant and probably sentinel event in the Appellant's life."[98]
3. The appellant says that he continued to work after the trauma of the 2018 motor accident without complaining and this was a common occurrence for police officers. The appellant says his symptoms have been present since 2018 and are now incapacitating.[99]
4. The appellant then submits:

"4.33. The distinction between injury simpliciter and disease is useful in the context of this claim. It is the Appellant's case that the motor accident [in] 2018 caused him to suffer a sudden and identifiable psychological change in the form of difficulty sleeping, social withdrawal, low mood, emotional detachment (ARD 11, paragraphs 8 & 9; ARD 3 paragraphs 26 to 32). Those facts support the proposition that the Appellant was significantly affected by that event, and that [its] effects have continued until the present time.

4.34. Whether the injury occurred as a result of an injury or a disease, it is the Appellant's case that its cause was overwhelmingly the motor accident [in] 2018. It would also be open to conclude that the decline in his mental health after that even[t] could be characterised as a disease consistently with the decision in NSW Police Force v Gurnhill [2014] NSWWCCPD 12.

4.35. The Appellant ceased work when he was suspended from duty on 17 March 2023. He consulted Dr Hamad on that day. There is a clear temporal connection with the Appellant's suspension from duty. That fact creates a conceptual difficulty in relation to incapacity. Just as the nature of the Appellant's incapacity prior to the events leaving [sic, leading] to his suspension is not measured by a cessation of employment, any incapacity as a result of those events is, similarly not measured by an injurious cause for the cessation of work at that time.

4.37. Accepting that the parties deferred the issues the Appellant submits that the Member acted erroneously when he isolated the evidence pre-January 2023 in approaching his answer to the first issue. The question of injuries required a consideration of the Appellant's diagnosis after the events of January to March 2023.

4.38. The Member's acceptance of the opinion of Dr Goodison is inconsistent with his findings at ARD 185. The Member has not adequately explained how the symptoms found at ARD185 disappeared, or at least became non-causative by March 2023. The Appellant submits that such a finding was not open on the lay evidence."

1. In its Notice of Opposition submission, the respondent says the following:

"5.1. The Appellant's submissions describe Ground 4 [sic, Ground 3] as concerned with error of fact and of law. (AS [4.29]). No clear explanation is given as to the basis for error of law. An allegation is made that error of law occurred by the Member's failure to find that the Appellant's condition was an injury consisting in a 'disease injury' for the purposes of s 4(b) of the [1987] Act, caused by traumatic events of attending at the scene of a stabbing in 2018, and at the scene of a motor vehicle accident on 28 September 2018, (AS [4.34]). The submission is that the error of law lies in the Member's failure to accept that the Appellant was 'incapacitated' by these events, prior to the suspension without pay on 17 March 2023 (on which date he first sought medical treatment by consulting Dr Hamad) (AS [4.35]). The Appellant submits that 'any incapacity as a result of [the events of the Incident followed by suspension, resignation and criminal prosecution] is ... not measured by an injurious cause for the cessation of work at that time' [AS [4.35]). It is very unclear what error of law by the Member is identified in this submission.

5.2. In the end the Appellant's submission is that the Member should have accepted that he had a 'decline in mental health' after the traumatic events in 2018, and that this was an existing injury within s 4(b) of the [1987] Act, prior to his suspension, resignation and criminal prosecution in March 2023 (AS [4.35], [4.37], [4.38]). It is immaterial whether or not the injury was a 'disease injury'. Ultimately Ground 3 is a complaint about fact finding and does not identify an alleged error of law.

5.3. Ground 3 is barely distinguishable from Grounds 1 and 2. The Respondent submits that it does not identify or establish any error of law, and does not establish any error of fact."

1. In this ground the appellant relies upon his own evidence and that of his ex-wife regarding the symptoms which are said to have arisen after the 2018 motor vehicle accident.[100] Before considering this ground, I would remark that the Member has made credit findings adverse to the appellant.[101] This adverse credit finding has not been challenged on appeal. The Member stated that acceptance of the appellant's evidence would be crucial in being persuaded that he had satisfied the burden of proof.[102] This statement has not been challenged on appeal.
2. In terms of reliance upon the evidence of the appellant's ex-wife, the Member found that this evidence lacked detail and was simplistic.[103] I have dealt with this evidence and how the Member dealt with it in Grounds One and Two (above).
3. I do not accept the assertion made by the appellant that the Member's reasoning at reasons [184]-[191] is consistent with a finding of injury being suffered. Indeed the Member at reasons [186], which I have set out in full above, states that while he accepts that the symptomatology recorded at [185] occurred, this was insufficient to find injury. The Member points to the fact that the appellant took no time off work and had no medical treatment prior to 17 March 2023, other than the marriage counselling I have discussed above. Further, from reasons [192] onwards, the Member closely examined the medical evidence. The Member did this in order to assess whether he was actually persuaded that a psychological injury had occurred prior to that date. Ultimately, at reasons [212], the Member concludes that he did "... not feel the actual persuasion necessary in accordance with Nguyen and Drca[[104]] to find that the [appellant] (after considering the totality of the evidence presented) has discharged his onus of proving that he sustained a psychological injury as a result of his exposure to traumatic events."
4. This statement at reasons [212] is the terminus of the Member's reasoning as to why injury was not proven. No complaint about error in this process has been proven.
5. I accept the respondent's submission that Ground Three is closely related to the complaints appearing in Grounds One and Two. For the reasons I have expressed with respect to all three grounds, Ground Three is dismissed.

1. In this ground the appellant challenges the Member's approach to weighing the medical evidence. The appellant submits the following:

"4.39. The Member made an error by giving significant weight to the opinion of Respondent IME, Dr Suzanne Goodison, who opined that the [appellant] did not suffer from a diagnosable psychological injury, while failing to adequately consider or properly weight the evidence of treating psychiatrist, Dr Stuart Saker and treating psychologist, Mr Mark Benad as well as the GP, Dr Mahmoud Hamad all diagnosed the [appellant] with PTSD, major depressive disorder, anxiety and depression as well as alcohol use disorder.

4.42. The treating doctors were in an advantaged position to assess the [appellant's] psychological state over a longer period of time, having engaged in numerous sessions.

4.43. Therefore, they were not subject to the same time limitations and instructions as an IME doctor, who saw the [appellant] on one occasion. The treating practitioner's reports and consistent assessments should not be dismissed in favour of a single IME assessment made by the Respondent."

1. The appellant also relies on three first instance member decisions in the Commission.[105] The first where a member accepted why the police officer claimant did not tell the superior about experiencing traumatic events. The second where a member preferred treating doctors' opinions over those of IMEs and a third where a member accepted evidence about avoidance behaviours after a worker is exposed to trauma.[106]
2. The appellant argues:

"4.48. The Member failed to properly weigh the substantial and consistent medical evidence from the treating practitioners and rather preferred an opposing opinion in a single report from Dr Goodison, despite Dr Goodison's stating that the [appellant] was amidst ongoing criminal proceedings and appeared unsettled and anxious at the assessment due to this. This could have affected the accuracy of Dr Goodison's opinion, however, the Member still preferred the IME's opinion over the treater's reports.

4.49. Further, the supplementary report of Dr Saker of 30 August 2024 addressed updated clinical observations, relevant to the ongoing nature and cause of the [appellant's] psychological injury and portrays contradictory findings compared to Dr Goodison's report. The report addresses the cause and severity of the psychological condition. The failure to admit or consider the supplementary report is a matter of denial of procedural fairness. The [appellant] asserts that the report was served in a timely manner on 12 September 2024 and is clearly relevant to the key factual issues at hand."

1. The respondent denies that the Member was in error in his treatment. The respondent argues the following:

"6.3. The Member took into account Dr Hamad's reports and clinical notes (MD [88]-[91]). This included that as at 30 July 2023 Dr Hamad considered the Appellant's incapacity to be a result to a degree of the disciplinary and criminal proceedings instituted against him in relation to the Incident, as well as any incidents at work (MD [200]). There is no error of fact in the Member's reading of Dr Hamad's view in his report as to causation of any psychological condition. Further, the Member takes into account that the Appellant had not presented to Dr Hamad with psychological symptoms in the 25 years preceding 30 July 2023 (MD [201]). There is no error of fact in the Member's assessment that the Appellant's claim that he had symptoms and needed treatment prior to 17 March 2023 was inconsistent with Dr Hamad's clinical notes for the period from 2007 to 2023 (MD [191]).

6.4. Dr Benad, a psychologist first consulted by the Appellant on 26 May 2023, provided a report dated 27 June 2023, concluding there was PTSD, major depressive disorder, and alcohol use disorder (noting that as a psychologist he was not in a position to provide a medical diagnosis). The Appellant consulted Dr Benad on two subsequent occasions, 12 September 2023 and 6 October 2023, but cancelled further consultations because this was no longer covered under his workers compensation claim. Although Dr Benad diagnosed the Appellant as having PTSD, major depressive disorder and alcohol use disorder, he qualified this by stating in his third report that he had seen the Appellant on only three occasions, and was conscious that he had not assessed him in depth or obtained a comprehensive history and that he had later discovered the Appellant had been criminally charged, raising questions as to whether this was causative. At that point Dr Benad declined to express a final opinion on the issue of causation and passed the issue over to others.

6.5. The Member fairly presented the overall conclusion of Dr Benad and fairly evaluated it, without factual error (MD [92]-[97], [98](c), [202]).

6.6. Dr Sakar, a psychiatrist consulted by the Appellant once by telephone on 22 June 2023 (on referral from Dr Hamad), provided a one and a half page report dated 2 August 2023. He diagnosed the Appellant with PTSD, major depressive disorder, insomnia disorder and alcohol use disorder caused solely by traumatic events in the course of his employment, before the Incident on 22 January 2023 (AS [4.39]). Dr Sakar relied substantially on the history given to him by the Appellant, and did not refer to the Incident, or its consequences for the Appellant's employment. Dr Sakar relied on the Appellant's separation from his wife in 2022 as consistent with his having PTSD, without identifying support for that in the counselling records. While failing to take a history of the Incident, Dr Sakar expressed an opinion that the Appellant's behaviour in the Incident stemmed from pre-existing PTSD. Dr Sakar also failed to assess the effect of the disciplinary action and the criminal proceedings upon the Appellant's psychological condition.

6.7. The Member fairly presented the report of Dr Sakar and what was missing from it, correctly noted that the report (and referral) was made only after 17 March 2023 rather than contemporaneously with the period of the traumatic events relied upon; fairly evaluated the history taken as inadequate or flawed; fairly evaluated the coverage of causation incorporating the Incident absent taking a history of the Incident as flawed; and properly treated reliance on the separation as misplaced (MD [84]-[87], [98](a), [160], [197]-[199]). There was no factual error involved in giving Dr Sakar's report less weight on account of these deficiencies.

6.9. Dealing first with the claimed error of fact in relation to weight to be given to medical reports, the Appellant's submission is that the 'treating doctors' (including Dr Khan, and indiscriminately including the general practitioner who did not treat for this condition, and a psychologist) were 'in an advantaged position to assess the Appellant's psychological state over a longer period of time having engaged in numerous sessions' (AS [4.42]). This submission advances a factually incorrect proposition. The Member did not evaluate the medical evidence on the basis of this proposition, and for good reason. There is no support for it in the primary evidence.

6.14. Contrary to the Appellant's submission, there were no consistent assessments by these health professionals over a longer period of time and in numerous sessions (AS [4.43]). The only consistency lies in the opinions of each of them that the Appellant had PTSD at the date of the consultation, which was after 17 March 2023. Only Dr Sakar and Dr Khan reached an opinion that the condition diagnosed was causally contributed to by the Appellant's exposure to traumatic events in the course of his employment. The Appellant's claim of error of fact by the Member is based on a factual proposition that is inconsistent with the primary evidence.

6.21. The Appellant's Submissions claim that by comparison with the Appellant's experts, Dr Goodison was 'subject to ... time limitations and instructions' (AS [4.43]). The limitations and instructions are not explained. Nor is an explanation given as to why the instructions received by Dr Goodison and the time required for delivery of her report resulted in the Member erring in fact by giving weight to Dr Goodison's opinion.

6.22. The Appellant's submissions suggest that the weight to be accorded to an expert report is arrived at by lining up the number of reports reaching a particular opinion and allocating weight according to the reports belonging to the numerically winning group (AS [4.48]). The Member did not adopt this approach and there was no error in not adopting it.

6.24. The final matter raised under Ground 4 is that Dr Sakar provided a second report dated 30 August 2024, and that the Member erred in failing to admit the report, or to consider it. This is alleged to constitute a denial of procedural fairness (AS [4.49]). This is very different from the mixture of claimed errors of fact advanced under Ground 4. It should have been presented as an alleged error of law."

1. I will firstly deal with what I consider to be two aspects of this ground which are peripheral to the main complaint, which challenges how the Member construed and weighed the medical evidence.
2. The first aspect relates to the appellant's complaint about suffering a denial of procedural fairness due to the failure on the Member's part to admit or consider the supplementary report of Dr Saker dated 30 August 2024. At the hearing before the Member on 16 September 2024, the appellant attempted to have the Member receive an Application to Admit Late Documents (AALD) dated 10 September 2024. This AALD contained the report of Dr Saker dated 30 August 2024. The respondent objected. Submissions were briefly made by the respondent opposing the Member receiving this report[107] before counsel for the appellant accepted that, by virtue of the late service of the AALD, "forensic prejudice has arisen" and the tender was not pressed. The Member noted that the tender was not pressed and the document was not admitted.[108] The Member accurately described this exchange at reasons [11].
3. Plainly, no issue of procedural fairness arises. The appellant quite properly acknowledged that the late receipt of the report would prejudice the respondent and conceded the point. No error arises, there was no denial of procedural fairness. This aspect of Ground Four is dismissed.
4. The second aspect of this ground deals with the reliance by the appellant on three first instance decisions of other members of the Commission. These decisions are not binding on the Member. I accept that they may be useful guides or aides memoire regarding the approach to be taken regarding the circumstances raised in each matter, especially in terms of the approach to be taken when weighing competing medical evidence. But no error arises in relation to the Member not following or strictly applying these decisions. This aspect of Ground Four has not been established.
5. This leaves the gravamen of the appellant's complaint in this ground, which is the manner in which the Member assessed and weighed the evidence. There are a number of points which the appellant makes in order to make good this ground. The first point relates to the asserted advantage the appellant's treating doctors are said to have had over the respondent's IME.[109] I do not read the appellant's submission as suggesting that this is a numerical exercise, with the group of doctors who saw the appellant most constituting the preferred opinion by virtue of that fact alone. This would not be a proper approach. Such an approach would fail to engage with the opinions themselves or whether they accord with the authorities and rules for expert evidence in the Commission. However, the fact that a doctor may have seen a worker like the appellant on multiple occasions is but one of a number of matters to be weighed in the balance in deciding which opinion(s) are to be preferred or accorded more weight. In some cases, the frequency that a worker consults a doctor may be determinative on this question, in others it may not be.
6. The Member was well aware that certain doctors had greater access to the appellant over a longer period of time than the respondent's IME. For example, the Member records that Dr Hamad had known the appellant for more than 25 years.[110] Indeed in relation to Dr Hamad, the Member had his clinical notes for the period 27 June 2007-26 June 2023, noting that there was no reference in the notes to any psychological issues before 17 March 2023.[111]
7. In terms of the Member's approach to the medical evidence, the dispositive passages of the decision on this issue commences at reasons [192]. The Member quite properly described the legal principles to be employed in his consideration of the medical evidence and whether it was given in a 'fair climate'.[112]
8. At reasons [195] the Member repeats his "significant reservations regarding the reliability of the [appellant's] evidence" before setting out seriatim his reasons as to why Dr Khan's evidence was not given in a 'fair climate'. The Member continued his assessment of Dr Khan's evidence at reasons [196], with particular focus on the doctor's treatment of the 22 January 2023 incident and the ensuing disciplinary and criminal proceedings.
9. In terms of how the Member approached Dr Khan's evidence in these passages,[113] there is no complaint by the appellant. The Member has not been shown to be in error in terms of how he dealt with Dr Khan's opinions.
10. Turning to Dr Saker's opinion, the Member dealt with this at reasons [197]-[199]. Once more the Member noted his "significant reservations regarding the [appellant's] evidence" because Dr Saker's opinion relied substantially upon the history given to him by the appellant.[114] Additionally, the Member considered the history that was obtained to be "inadequate or flawed."[115]
11. I have closely read Dr Saker's report dated 2 August 2023.[116] I agree with the Member's assessment of the report and its deficiencies. The history relied upon by the doctor is indeed inadequate and is based upon the appellant's evidence, with all of the problems the Member has identified. As was the case with Dr Khan's evidence, the Member found that Dr Saker's evidence was not given in a 'fair climate'. I agree.
12. I would also note that the appellant has not taken issue in this appeal with how Dr Saker's evidence was dealt with and considered by the Member in these three paragraphs, where the Member reached his decision on the weight to be accorded to the doctor's opinion.
13. No error of approach has been established with respect to how the Member weighed Dr Saker's opinion.
14. The appellant relied upon the report of Dr Hamad 30 July 2023.[117] The Member dealt with this at reasons [88]-[90] where the doctor's one page report is summarised, and reasons [200]-[201] where the Member is deciding what weight to place upon it. Tellingly the Member says this:

"The doctor of course relies upon the history given to him by the [appellant] regarding the traumatic incidents, but does not explain why he considers the traumatic incidents to be causative, when the [appellant] had not reported them to him prior to 17 March 2023, in circumstances where he has been the [appellant's] general practitioner since at least 27 June 2007."[118]

1. I have read the single page report of Dr Hamad.
2. In Hancock, Beazley JA said this at [82]:

"Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report_._ In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone."

1. Additionally, an expert must expose the path of reasoning taken to reach their ultimate opinion.[119] Finally, an expert's opinion which is a bare ipse dixit will carry little weight.[120]
2. This report has a number of problems. Plainly it is based upon the history provided to the doctor by the appellant. As I have described above, the Member had significant issues with the appellant's credit and this finding is not challenged on appeal. The doctor has described in broad terms (on the appellant's instructions) various stressors experienced while he was a police officer. There is no time period specified, there is no assessment of which events were causative of the conditions identified. The appellant has in these proceedings identified two incidents that he says had a marked adverse effect upon his mental condition. It is not apparent whether Dr Hamad knew about them as they are not specified in terms. I accept that the two incidents could fit within the broad categories described by the doctor in the second paragraph of the report, but given the importance placed upon them in the appellant's lay evidence (his evidence, and that of his father and ex-wife), one would have thought that they would be specified in detail. This is in my view a significant omission in this report. On my reading of this report, the doctor's path of reasoning is not explained and as a consequence, has all the hallmarks of an ipse dixit. The Member was correct to accord it little weight.
3. The final report is that of the psychologist Mr Mark Benad dated 27 June 2023.[121] The Member summarised this report at reasons [92]-[97] before dealing with it at [202] in the following terms:

"The [appellant] finally relies upon a report from Mark Benad. I accept the respondent's submissions in relation to this report as not being particularly helpful to me considering the psychologist's inability to provide a useful opinion regarding causation (see paragraph 97 above), when attempting to reconcile the effect upon the [appellant] of the traumatic incidents and the effect upon him of the criminal charges and his suspension from his employment with the respondent."

1. Mr Benad at least has the history of the two events in 2018 which the appellant has attached great reliance upon in terms of the claims made by him. The first event was the stabbing victim who died in front of the appellant. The second is the highly disturbing motor vehicle accident involving a woman who was pregnant with twins. Indeed Mr Benad's account of this second incident recounts the scene in detail.[122]
2. Mr Benad says this in the section of his report entitled "Attribution":

"It must be remembered that I have only seen this man on three occasions and I am not across his entire history, both work and non-work related. I was engaged as a treating psychologist and the focus of the initial sessions revolved around some history gathering and efforts to establish rapport for the purpose of psychological therapy. I was not engaged for the purpose of independent assessment. I similarly do not self-nominate as a medico legal expert.

In closing, this has become a complex matter in relation to liability determination and as a treating, rather than assessing clinician, I respectfully pass over the issue to others who consider themselves to have the requisite expertise in those matters."[123]

1. Mr Benad, quite properly, acknowledges that he was not in a position to posit an opinion on causation, noting his focus had been on treatment.
2. In light of this, the Member was correct in his treatment of Mr Benad's opinion when he deals with it at reasons [202]. No error has been established.
3. The appellant has asserted that the Member has failed to weigh the treating medical evidence. I do not accept this submission. To the contrary, the Member has, in a well-reasoned decision, assessed the appellant's medical case in a methodical and principled manner. I have outlined this approach above and it is apparent that there were problems with each of the opinions of the four medical practitioners relied upon. A significant problem is of course the adverse credit findings the Member had made contrary to the appellant, which are not challenged on appeal, and the concomitant effect this then has on opinions based upon his evidence. There has been no error on the part of the Member in assessing this evidence.
4. Ground Four is dismissed.

1. The appellant complains that the Member did not have regard to the appellant's expressed reason for not reporting his psychological injury, namely the fear of stigma and adverse professional consequences occurring were he to report these matters to his superiors. The appellant points to two other decisions of Commission members, involving police officer claims, where this explanation was accepted.[124]
2. The appellant submits:

"4.54. The Member noted that the [appellant's] treating doctor does not state psychological complaints prior to 17 March 2023 and the records commence from 27 January 2007. Although there may not have been written complaints or reports of a psychological condition, it would not necessarily mean psychological struggles or concerns were not raised.

4.55. The [appellant] did in fact seek counselling in 2019 and 2020 but did not find it helpful and ceased treatment due to fear of repercussions. The Member made insufficient findings regarding the explanation and treated the delay in reporting as evidence that the [appellant] did not suffer a compensable psychological injury. This however results in an unfair assessment of the [appellant's] credibility and conduct.

4.56. As stated in Kristina Janjic v NSW Police Force [2018] NSWWCC 176 [sic, [2014] NSWWCC 428], Member Linda Ashford emphasised that the injured worker

'(47) ... she did not want her employer to know of her depression as this was something regarded as a stigma to her continuing employment and career prospects. This is not an unusual situation for serving police officers. Rightly or wrongly many officers perceive mental problems to be a form of weakness in a serving officer.'"

"7.2. The Member's reasons indicate that careful consideration was given to the claim (MD [32], [74], [188](a)). Dr Goodison accepts in her report that police officers often do not disclose their psychological conditions to their employer due to the associated stigma. The Member specifically referred to this part of her opinion (MD [113](f)). However Dr Goodison also found that the Appellant did not tell her that he was concerned that such disclosure would create stigma. Rather, he told her that he did not have a condition requiring disclosure, and did not need treatment and was functioning in his job and life (MD [113](f)).

7.3. The fact that in other cases evidence of this explanation for non-disclosure was given and accepted does not assist the Appellant's submission (cf AS [4.53], [4.56], [4.57]). The Member made an adverse credit finding that the Appellant was evasive, vague, misleading and unhelpful in giving evidence (MD [180], [183]). This in part accounts for the Member's conclusion, consistent with the history taken from the Appellant by Dr Goodison, that in this case the non-disclosure was not due to a fear of stigma but rather was due to the absence of any psychological condition. The Member's conclusion was also supported by the evidence of the Appellant's failure to seek medical assistance which he could have done without disclosure to the employer. The Respondent submits that there was no error of fact or discretion in the way the Member addressed the claim."

1. A significant problem with respect to this ground is that it relies upon an acceptance of the appellant's evidence as to his fear of adverse professional consequences arising and/or the stigma associated with admitting a psychological problem. The Member was rightly critical of the appellant's evidence.[125]
2. The Member dealt with the non-reporting of symptoms at reasons [188] and why the evidence of the appellant's ex-wife was 'undermined' on this issue. One of the reasons relied on by the Member was his reservations about the appellant's evidence.[126] I would add that the appellant did in fact report a psychological injury after the 2018 motor vehicle accident involving the woman pregnant with twins[127] as well as other injuries.[128] These P902 injury reports made by the appellant do not support his assertion that he was fearful of reporting injury. The P902 documents, to the contrary, reveal a preparedness to report injury and the Member was correct to reach this conclusion at [188], and [188(b)] in particular.
3. I accept the respondent's submission that the mere fact that findings regarding non-disclosure were made in other cases is not of assistance. In this case the appellant's credit was subject to serious challenge and significant findings adverse to his credit were made. These findings go directly to assessing the appellant's explanation for not disclosing his 'problems' to the respondent.
4. Contrary to the appellant's submission, the Member did consider the explanation for the appellant's non-disclosure of his psychological problems. Unfortunately for the appellant, the Member did not accept the explanation, for the sound reasons set out at reasons [188] and based on the adverse credit findings contrary to the appellant which, as I have stated, have not been challenged on appeal.
5. Ground Five fails.

1. The appellant complains that too much reliance was placed on the video footage of the events of 22 January 2023, which events led to his resignation from the police force and his charging with criminal offences. The appellant submits:

"4.58. The Member permitted the Respondent to rely on video footage of the incident on 22 January 2023 and relied heavily on the cross-examination and submissions relating [to] same. Whilst the [appellant] did not object to the admission of the video footage, the way in which the footage was emphasise[d], combined with the rejection and objection of the [appellant's] supplementary report of Dr Stuart Saker dated 30 August 2024, implied that excessive weight was placed on the sole incident on 22 January 2023, which affected the assessment of causation and injury.

4.59. The Member appears to have adopted the Respondent's submission that the [appellant] only developed symptoms after the disciplinary action was taken. However, this fails to take into account for the psychological impacts of cumulative trauma.

4.60. The heavy reliance on the video evidence disregarded the clinical records which account for the years the [appellant] was employed as a Police Office[r] and faced a psychological decline. In doing so, the Member denied the [appellant] proper weighing the medical evidence relied upon. The only relevance of the video footage was whether the disciplinary action was reasonable and should not go further than that.

4.61. The [appellant] asserts that such behaviour was portrayed and engaged in on 22 January 2023 incident due to pre-existing psychological condition of PTSD, anxiety and depression and therefore was not in the right frame to handle a mentally ill person and as a result his work performance declined. The [appellant] relies on Dr Saker's statement of 2 August 2023 which states that the anger and [poor] judgement on 22 January 2023 stem from the PTSD and the conduct on 22 January 2023 and show why the [appellant] is incapacitated and unfit to engage in his employment as a police officer. This assertion was however disregarded by the Member.

4.62. Further, the Member recounts the cross-examination that occurred and particularly when the [appellant] could not recall what he and his partner, ... were trying to do at the 22 January 2023 incident. Further, the Member found that the [appellant's] evidence was vague, evasive and confusing. The [appellant] was triggered by moments of his career and his overall employment with NSW Police Force and due to his PTSD diagnosis avoided activities, discussions and viewing material relevant to his time as a Police Officer."

"8.4. The Appellant's anger and poor judgment in the context of the Incident are not symptoms on which the Appellant relied in his claim, but were taken by Dr Sakar to be symptoms of PTSD (cf AS [4.61]). The symptoms on which the Appellant relied were quite the contrary, including being withdrawn, depressed and anxious. Contrary to the Appellant's submission (AS [4.61]), the Member did not disregard Dr Sakar's opinion as to the conduct displayed in the Incident (MD [86]). However, the Member found that that the Appellant's description of the Incident in his statement was clearly misleading, given the behaviour that could be seen in the video footage (MD [182](c)). The video footage was relevant to credit. The[re] was no error of fact or discretion in the Member reaching an adverse finding as to credit by comparison of the video footage with the Appellant's evidence. It does not suffice to allege that the Appellant "was triggered" (AS [4.62]), when he had the opportunity calmly to set out in his written statements the evidence he sought to give about the Incident."

1. I have carefully read the transcript of the cross-examination of the appellant on the video evidence. For me to overturn the Member's credit findings adverse to the appellant, I would have to be satisfied that they were "glaringly improbable" or "contrary to compelling evidence".[129] For the following reasons, I do not accept that the Member's credit findings can be impeached in the manner required by Lee v Lee.
2. I fully endorse the Member's adverse credit findings against the appellant. I consider that the evidence was deliberately evasive, in parts untruthful, in part dissembling and the Member was correct so to find. The appellant was shown the video of a series of violent actions taken by himself and his colleague towards a naked, mentally ill woman and was given every opportunity to answer questions on this incident.
3. In terms of the appellant being cross-examined on the events of 22 January 2023, another Commission member, Member J Snell, in a decision dated 30 October 2023[130] granted the respondent leave to cross-examine the appellant on the very events of 22 January 2023.[131] The appellant did not give evidence until 16 September 2024, that is approximately 11 months after this decision was delivered. I would also remark that the video, contained in a USB stick, was admitted by consent on 16 September 2024.[132] The USB stick containing the footage of the incident on 22 January 2023 was served upon the appellant's solicitors in a letter from the respondent's solicitors dated 25 June 2024.[133] In summary, the appellant was aware for a very long time that he would be cross-examined on the events of 22 January 2023 and had access to the USB containing the video of that date for a little under 3 months prior to giving evidence. I therefore consider that the appellant had every opportunity to prepare and be ready to answer questions about the events of that day and any matters arising from the video. The Member was right to find adversely on the issue of the appellant's credit as a witness. This finding though was rightly not limited to the events of 22 January 2023.
4. The appellant also complains that reliance on the video evidence meant that the clinical records revealing the appellant's psychological decline were disregarded. I do not accept this submission. The Member closely examined the clinical records. Dr Hamad, who treated the appellant for 25 years, had no records of any complaints of a psychological nature before 17 March 2023.[134] Further, as I have found above in answering Grounds One and Two, the marriage counselling records from 2021[135] do not reveal the appellant suffering from any psychological condition. Indeed this is by virtue of the appellant's own answers to the questions on the form.
5. The assertions of error in this ground have not been established. Ground Six is dismissed.

1. The Member has, in an exceptionally well-reasoned decision, made orders in favour of the respondent. This was based upon adverse findings of credit against the appellant, which findings I consider are completely justified. Secondly, the Member has carefully reviewed the medical evidence and clinical records and was satisfied that there was no evidence of psychological injury prior to the serious incident which took place on 22 January 2023. This finding was based on a thorough and dispassionate review of the medical evidence led by the appellant. I concur with the Member's findings on this aspect.
2. As a consequence, this appeal must fail. I make the following orders:

(1) The Certificate of Determination dated 11 June 2025 is confirmed.

(2) Pursuant to rule 132 of the Personal Injury Commission Rules 2021, I order that the names of the parties to this dispute be de-identified.

[1] Application to Admit Late Documents (AALD) 29 February 2024, p 1.

[4] Application to Resolve a Dispute (ARD), p 15.

[7] Hearings dated 16 September, 15 October and 10 December 2024, and 17 March 2025.

[11] CLA v BUU [2025] NSWPIC 259 (reasons), [32].

[19] Reply to Application to Resolve a Dispute (reply), p 36.

[45] [2008] NSWCA 246 (Nguyen).

[48] (1994) 10 NSWCCR 117.

[52] [2022] NSWPICPD 19.

[59] Certificate of Determination dated 11 June 2025, Order 3.

[61] [2025] NSWCA 157 (Culhana).

[62] [2011] NSWWCCPD 25 (Raulston).

[64] [2019] HCA 28 (Lee v Lee).

[65] Transcript 16 September 2024 (T), T11-108.

[69] Appellant's submissions 21 July 2025, [5.1].

[72] ARD, p 3, [22]-[30]; Mr Benad records a detailed history of this incident at ARD, p 43, [3].

[77] Appellant's submissions 21 July 2025, [4.26].

[80] Appellant's submissions 21 July 2025, [4.28].

[81] Respondent's submissions 27 August 2025, [4.1].

[82] Respondent's submissions 27 August 2025, [4.7].

[84] Respondent's submissions 27 August 2025, [4.8].

[85] Respondent's submissions 27 August 2025, [4.12].

[86] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 444.

[87] [2005] HCA 40, [64].

[89] [2005] NSWCA 96 (Langford).

[93] Appellant's submissions 21 July 2025, [4.27].

[98] Appellant's submissions 21 July 2025, [4.30].

[99] Appellant's submissions 21 July 2025, [4.31]-[4.32].

[100] See appellant's submissions 21 July 2025, [4.30] and [4.33].

[104] Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10.

[105] Black v State of New South Wales (NSW Police Force) [2023] NSWPIC 670; Ali v Woolworths Group Limited [2021] NSWPIC 150; Cooper v State of New South Wales (Ambulance Service of NSW) [2018] NSWWCC 14.

[106] Appellant's submissions 21 July 2025, [4.44]-[4.47].

[109] See paragraphs [4.42], [4.43] and [4.48] of the appellant's submissions 21 July 2025, set out above.

[112] Referencing Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 at reasons [193] and the seminal passage on this issue found in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 (Hancock), [82]-[83], per Beazley JA.

[119] Dasreef Pty Ltd v Hawchar [2011] HCA 21, [42].

[120] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, [130], per McColl JA.

[124] Appellant's submissions 21 July 2025, [4.53]; [4.56].

[125] See in particular reasons, [183].

[127] See P902, reply, p 19; reasons, [54].

[131] See paragraph 8 of that decision.