Commissioner of Police v Dalziel

Court of Appeal (NSW)|2011-08-01|Before: Basten JA, Whealy JA

Ms L P McFee - Appellant Mr T M Ower with Mr M N Hammond - Respondent Solicitors:

Hicksons Lawyers - Appellant Walter Madden Jenkins - Respondent File Number(s): CA 2010/299080 Decision under appeal Date of Decision: 2010-08-18 00:00:00 Before: O'Toole DCJ File Number(s): RJ 96/2007

HEADNOTE [This headnote is not to be read as part of the judgment] On 7 April 2007, the respondent was discharged from the New South Wales Police on medical grounds, with a certificate that she was suffering from the infirmity of "adjustment disorder with angry and depressed mood", which rendered her incapable of personally exercising the function of a police officer. On 1 November 2006, the Commissioner for Police determined that her being "hurt on duty" did not cause the infirmity, for which the respondent had been discharged. As a result she did not satisfy s 10B(3) of the Police Regulation (Superannuation) Act 1906 (NSW) and was therefore not entitled to compensation. The respondent appealed from the finding of the Commissioner to the District Court. On 18 August 2010 O'Toole DCJ set aside the decision of the Commissioner, holding that the specified infirmity had indeed been caused by the respondent being "hurt on duty" and concluding that the respondent's employment in the New South Wales Police was a substantial contributing factor to her certified infirmity. The Commissioner appealed to this Court, from the decision of her Honour, on the basis of legal error, within the terms of s 142N of the District Court Act 1973 (NSW). The issue for determination on appeal was whether the primary judge erred in point of law in determining that the infirmity, for which the respondent was medically discharged from the New South Wales Police, was a result of being 'hurt on duty'. (per Basten JA dissenting)

Judgment 1BASTEN JA : On 7 April 2006 the respondent, Debra Dalziel, was discharged from the New South Wales Police on medical grounds. On 1 November 2006 the Commissioner of Police determined that the infirmity for which she had been discharged was not caused by her being "hurt on duty". As a result, she did not satisfy s 10B(3) of the Police Regulation (Superannuation) Act 1906 (NSW) ("the Superannuation Act ") and was not entitled to compensation. 2From that decision, the respondent appealed to the District Court. On 18 August 2010, O'Toole DCJ set aside the decision of the Commissioner, holding that the specified infirmity had been caused by the respondent being hurt on duty. The Commissioner has challenged that decision on the basis of legal error, within the terms of s 142N of the District Court Act 1973 (NSW). 3I would uphold the appeal and set aside the orders of the District Court.

Principal issue 4The statutory scheme for payment of compensation to injured police officers involves a two-stage process. The first stage requires the determination of an infirmity giving rise to incapacity and resulting in discharge from the force. The second stage involves a determination that the infirmity has been caused by the member being hurt on duty: Superannuation Act , s 10(1). The term "hurt on duty" is defined to mean "injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987 , entitle the member to compensation under that Act": s 1(2), hurt on duty . By this means, the provisions of the Workers Compensation Act relating to entitlement to compensation must be addressed in order for the discharged member of the police force to be granted the relevant benefit. 5Compensation payable under the Superannuation Act is known as an annual superannuation allowance. The process of qualification is identified in s 10B in the following terms, relevant to the present case: " 10B Medical examination of disabled member and determination of whether hurt on duty (1) An annual superannuation allowance ... must not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990 . ... (3) Where a member ... of the police force is duly certified under subsection (1) ..., the Commissioner of Police shall: (a) decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty ... and the date or dates on which the member ... was hurt on duty, and (b) give the member ... written notification of the decision." 6The "STC", referred to in s 10B(1), is defined to mean the SAS Trustee Corporation which operates under the Superannuation Administration Act 1996 (NSW): Superannuation Act , s 1(2), STC . The two-stage process identified in s 10B imposes a limitation on the availability of compensation to police which does not operate in relation to workers generally. Thus a worker is entitled to compensation under the Workers Compensation Act if he or she has received an "injury" (s 9), that term being primarily defined to mean "personal injury arising out of or in the course of employment": s 4, injury . By contrast, under the Superannuation Act , the entitlement only arises in respect of "a specified infirmity of body or mind", which infirmity arose in circumstances which would give rise to an entitlement under the Workers Compensation Act . Thus, the matter to be determined by the Commissioner, and on appeal by the District Court, was the relationship between the respondent's employment and the specified infirmity: the scope of the inquiry therefore depended on the nature of the specified infirmity: Saad v Commissioner of Police (1995) 12 NSWCCR 70 at 74-76 (Rolfe AJA, Kirby ACJ and Handley JA agreeing). (A finding with respect to a specified infirmity is open to timely challenge, but was not the subject of any application for review in this case: Superannuation Act , s 21(1)(a).) 7According to the Commissioner's certificate, the specified infirmity was "Adjustment Disorder with Angry and Depressed Mood". That was said to be the infirmity specified in a certificate of the Police Superannuation Advisory Committee, dated 30 March 2006, which was not before the Court. The STC thus appears to have operated through a delegate, namely the Police Superannuation Advisory Committee. (There were a few steps in the chain of decision-making which were not in evidence, but which did not give rise to any issue between the parties.) Pursuant to s 10B(1), the STC was required to have regard to "medical advice", a defined term referring to the advice of two members of the Police Medical Board or any one or more medical practitioners nominated by the STC. The medical advice available to that body was not identified. Nevertheless, the parties accepted that the specified infirmity was that identified by the respondent's treating psychiatrist, Dr Igor Petroff in a report dated 26 July 2005, addressed to the respondent's solicitors. In that report, Dr Petroff identified the respondent's history in the following terms: "The patient presented with a variety of nervous symptoms best labelled under the category of Adjustment Disorder with Angry and Depressed Mood with symptoms of at least moderate severity. This followed having cancer diagnosed in March 2003, then having it surgically removed in May 2003 and then having radiotherapy in August 2003. She became convinced that it was the police work and in particular being hit in the breast on several occasions that she can remember that produced her breast cancer. She was also absolutely convinced that returning to work would result in her cancer coming back. She was further aggravated by the police department wanting her to return to work. She became convinced that the police department had no compassion, that nobody there contacted her or cared about her." 8In a final paragraph, entitled "Opinion", Dr Petroff stated: "Ms Dalziel developed an Adjustment Disorder with Angry and Depressed Mood with symptoms of at least moderate severity following the development of breast cancer, which she associates with police work. With treatment, her distressing symptoms of anger and depression have diminished and she is able to function better. However, no psychiatry in the world will ever return her back to police work as firstly she attributes it to developing cancer and secondly, is so phobic about further injury to herself that she would be a liability in pressure situations. There should be no hesitation in medically retiring her." 9The term "adjustment disorder" involves a category of psychiatric conditions identified in the Diagnostic and Statistical Manual of Mental Disorders, 4 th Ed ("DSM IV"). The primary judge noted that one of the witnesses before her, Dr Lisa Brown, a consultant psychiatrist contracted by the Commissioner, assumed that this was the intended diagnosis: at [71]. Her Honour did not suggest that the assumption was not warranted. However, one consequence of that conclusion is that attention must be paid to the diagnostic criteria which include, first, "[t]he development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within three months of the onset of the stressor(s)". Dr Petroff identified the relevant stressors as the diagnosis of breast cancer and its treatment in March-August 2003. There was, however, no medical evidence supporting the proposition that her employment was a substantial contributing factor to her breast cancer. Had it been otherwise, it would likely have followed that her employment was also a substantial contributing factor to her infirmity, namely the adjustment disorder. 10The critical question for determination was whether the respondent's belief, accepted to be genuinely held, that there was a casual connection between physical injuries to her left breast, which occurred during the course of police work, and the carcinoma of the left breast, was a sufficient basis for the conclusion that the employment was a contributing factor to the adjustment disorder. (It was not contended that her medically unsupported belief itself arose out of her employment.) 11The hearing before the primary judge did not focus upon this issue with any clarity, although it was identified as the relevant issue by counsel for the Commissioner. Rather, a wide-ranging inquiry was conducted with respect to any incident identified by the respondent, occurring in the course of her 20 years service with NSW Police, which might have adversely affected her mental state. It was theoretically possible that pre-existing states of anxiety or depression to which her employment was a contributing factor, might have rendered her susceptible to an adjustment disorder. However, there was no finding by the primary judge in those terms. The decision of the District Court that the adjustment disorder was caused by being hurt on duty, without addressing the real issue identified above, involved legal error.

Conduct of hearing 12Proceedings in the District Court were commenced on 26 February 2007, but the hearing of her appeal to that Court did not commence until 23 March 2009. The case ran for five days in March 2009, but was adjourned, with the evidence, and indeed the evidence of a particular witness, Dr Peter Anderson, incomplete, until November 2009 when the hearing ran for a further three days. Judgment was delivered on 18 August 2010. To recount the procedural history is not to attribute blame, but only to note that the conditions in which this appeal came to be decided were not ideal. They bear comparison with the chronology in Goodwin v Commissioner of Police [2010] NSWCA 239, in which the Court remarked that it was "far from satisfactory" that the proceedings, which also involved a man suffering from a serious mental illness, remained unresolved more than nine years after the appeal was lodged in the District Court. Such timeframes make a mockery of the "guiding principles" set out in the Civil Procedure Act 2005 (NSW), which impose on courts, legal practitioners and parties, an obligation to facilitate the just, quick and cheap resolution of the real issues in dispute: s 56. 13In the present case, the facts the subject of evidence in the District Court extended over virtually the whole period during which the respondent was a police officer, commencing with her attestation in February 1982, through to her medical discharge in 2006. 14The judgment in the District Court appears to fall into four sections. The first contains a brief history of the plaintiff's service with NSW Police and the procedural history in respect of her claim: [1]-[44]. The second section provides a summary of the evidence given by Ms Dalziel, four senior police officers and the medical evidence: [46]-74]. 15The third and longest section by far, is simply entitled "The facts": [75]-[169]. There is a degree of repetition within it and with earlier sections and it is by no means clear whether the third section contains the primary facts as found by the trial judge. Most paragraphs in that section, if not all, end with references to exhibits or passages of the transcript, in parenthesis. The connection between the statements in the relevant paragraphs and the references at the end are not always self-evident. 16The fourth section is headed "Conclusions" and involves four paragraphs replete with somewhat tendentious epithets. It is convenient to set out the conclusions as a means of identifying the legal issues which were not otherwise isolated and addressed. "170. Between November 1994, and December 1999, Ms Dalziel's left breast was traumatised, arising out of and in the course of her police duties. She became anxious about performing general police duties, with their concomitant risk of injury to her breast. She feared breast cancer. Ms Dalziel's anxiety was compounded by the ineffectiveness of her legitimate complaints to the Equal Employment Opportunity Unit of New South Wales Police Service, by her duties regarding the suicide at Lismore and by the predatory behaviour of male police officers, who demeaned her work, humiliated, harassed, embarrassed and depressed her. 171. Between October 1997 and January 2000, Ms Dalziel developed intractable work related depression and suicidal ideation. Her symptoms waxed and waned with her police duties and with anxiolytic and antidepressant medication. Counselling, provided by New South Wales [Police??] Service, had no relevant effect on Ms Dalziel's depression and anxiety. Ms Dalziel's two ineffective complaints to the Equal Employment and Opportunity Unit plausibly explain her deciding not to protest to the Commissioner of Police about her male colleagues' appalling behaviour and her work related depression and anxiety. 172. Opportunistically, Mr Mark Jenkins, Ms Karen Harbrow and Ms Michelle Saunders relied on Dr Kirby's report to deprive Ms Dalziel of Special Sick Leave. Consequently, Ms Dalziel decided to apply for medical discharge from the Police Service. Capriciously, Mr Jenkins reversed his decision that the 'circumstances' of Ms Dalziel's illness had changed. 173. Cumulatively, those events caused and aggravated Ms Dalziel's adjustment disorder with angry and depressed mood. I conclude that Ms Dalziel's employment in New South Wales Police Service since 12 January 1997, was a substantial contributing factor to her specified infirmity. The Commissioner of Police does not persuade me that the infirmity was wholly or predominantly caused by his reasonable action in refusing Ms Dalziel's Special Sick Leave, in refusing his permission for secondary employment or in his discontinuing her appointment under section 66 of the Police Act ."

Scope of appeal 17The appellant acknowledged the constraints on the jurisdiction of this Court in respect of an appeal. No challenge is available purely in respect of the factual findings, nor was it suggested that any particular fact was found in the total absence of relevant evidence. Rather, the grounds set out in the notice of appeal made one complaint in respect of a failure by the primary judge to give any or adequate reasons for her ultimate conclusion, but otherwise complained of a failure to make findings, engage with the resolution of conflicting evidence and determine essential issues. In this way, there were, in the language of the notice of appeal, errors "in the process of fact finding". 18In Goodwin , I expressed doubts as to whether a complaint as to the adequacy of reasons engaged the requirement of s 142N of the District Court Act that there be a decision of the Court in point of law, as to which the appellant was aggrieved: at [11]-[14]. However, McColl JA and Sackville AJA expressed no opinion on that issue, which accordingly remained unresolved. Given the reasoning of the High Court in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390, the analysis will, in an appropriate case, need to be reconsidered. However, as the respondent pointed out in written submissions on this appeal, adequacy of reasons was not pressed as a separate ground. Accordingly, it is not necessary to discuss the matter further. 19Failure to engage in the process of resolving conflicting evidence, failing to make essential findings of fact and other forms of errors in the process of fact finding are expressions which may, but do not necessarily, raise errors in point of law. The preferable course, as became clear in the course of oral argument, is to identify the issues which her Honour did address, in order to determine whether they were correctly identified in point of law and whether the statutory scheme required other or additional issues to be addressed, which were not addressed. Even in circumstances where there was no explicit discussion of the relevant issues, a failure to address a matter required by law to be addressed could constitute an implied decision of the Court in point of law, namely that such a matter did not need to be addressed: Kostas at [69]. 20The Commissioner articulated his challenge to the judgment in the District Court on the basis, as noted above, of a failure to address the differences of opinion as to causation identified in the medical evidence on either side. The underlying issue was said to be whether the certified infirmity was caused by the conditions of the respondent's employment, or events which occurred in the course of her employment, on the one hand, or rather was caused by circumstances extraneous to her employment, on the other hand. The critical circumstance, according to the Commissioner, was the diagnosis of breast cancer, the condition being unrelated to her employment. 21The Commissioner's submission was based on an unduly simplistic analysis. First, while it may have been true, on the medical evidence, that the breast cancer was unrelated to her employment, that was not the basis for her medical discharge. Rather, the psychological condition of an "adjustment disorder" which justified her medical discharge resulted from a combination of the diagnosis and her response to it. As explained by Dr Petroff, and accepted by the primary judge, the respondent was convinced that her breast cancer was causally related to the physical traumas of being assaulted by a young person who had been taken into custody in Moree, in December 1994, and a fall at Lismore Police Station, on 7 December 1999. That gave rise to a question as to whether her belief as to the connection between the breast cancer and the employment was causally relevant. 22Secondly, there was an issue as to whether the earlier events, including sexual harassment, said to have occurred during her period with the mounted police in Redfern in 1983-1984, discovery of the body of a young woman who had committed suicide in July 1997 and the sexually "predatory behaviour" of a senior officer at Lismore Police Station, in December 1997, rendered her more likely to succumb to the adjustment disorder following diagnosis of breast cancer in 2003. 23The Commissioner's submissions did not fully recognise the extent to which her Honour's reasoning may have been based on these premises, or at least the latter one. It is, however, convenient to address first the question of the respondent's belief as a basis for a causal link between the adjustment disorder and her employment. 24It is necessary to note at this point that both the parties and the primary judge appear to have assumed that causative factors must be assessed separately in respect of the period before 12 January 1997 and the period thereafter, that date being the commencement date for s 9A of the Workers Compensation Act , which requires that the employment be "a substantial contributing factor to the injury": s 9A(1). Prior to that date, it was deemed to be sufficient if the employment were a contributing factor, which might not satisfy the description of "substantial". However, the temporal assumption would seem to be fallacious: the transitional provision stated that s 9A "does not apply to injuries received before the commencement of that section": Workers Compensation Act , Sch 6, cl 9(1). In the present case, the relevant injury was the certified infirmity. There was no suggestion that the certified adjustment disorder existed prior to January 1997, or indeed 2003. Accordingly, s 9A was engaged in respect of that injury; it did not require a separate causal assessment of each aspect of the employment which might, as a whole, constitute a relevant contributing factor. However, the Commissioner did not complain of this aspect as erroneous and it seems unlikely that it had any relevant consequence for the outcome.

(a) relevance of respondent's belief as to cause of injury 25In Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626, a worker suffering with an underlying condition of schizophrenia, suffered a temporary injury in lifting a heavy case at work. Although the physical symptoms resolved, the event triggered a delusional state, resulting from her schizophrenia, which incapacitated her. She obtained an award of compensation in respect of her on-going mental state, on the basis of an aggravation of her underlying schizophrenia, to which her employment was a contributing factor. An appeal to the Full Court of this Court was dismissed, as was a further appeal by the employer to the High Court. Windeyer J addressed the question of causation at 641-642: "When the Act speaks of 'the employment' as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed. In this case it was said that the employment was a contributing factor in the worsening of the disease, because the applicant focussed her delusions of pain and discomfort upon her right side which she believed she had hurt when lifting a tea chest in the course of her work. A minor physical strain she magnified in her irrational imagination into a serious and continuing derangement of her internal organs. ... Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinary concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it. It was said that in any event she might have broken down sooner or later: that some other incident might have provided a focus for her delusions. But it was this event at work that in fact did so." 26Other members of the High Court in Semlitch did not join in the reasoning of Windeyer J, but it has since been applied, including by this Court in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286. In Chemler , the Workers Compensation Commission accepted that there had been racial slurs and comments made at the workplace, in Mr Chemler's presence, which the witnesses for the employer described as being made jokingly, but which were not treated by Mr Chemler in that way. To him they were offensive; there was no dispute that he had suffered psychological injury as a result of the offensive remarks. The Court accepted that neither the lack of intention on the part of the fellow employees, nor any possible over-sensitivity on the part of the claimant, precluded a finding of causation. As Spigelman CJ explained, the employer must take its employees as it finds them, noting that there was, with respect to psychological injury, an "eggshell psyche" principle, equivalent to the "eggshell skull" principle in relation to physical injury. Conduct which actually occurs in a workplace and is perceived as creating an offensive or hostile working environment, from which a cognizable injury follows, may give rise to a claim for compensation: Chemler at [69]. There may, however, be a different result where the event itself was imagined, or there was no event giving rise to a particular perception or belief on the part of the claimant: see St Mary's School v Askwith [2011] VSCA 90 at [12] (Ashley JA, Warren CJ and Kyrou AJA agreeing). 27The difficulty in the present case is that the facts are not directly analogous with Semlitch , Chemler or Askwith . In the present case, the actual work-related events were the blows struck by the young offender and the fall down the stairs. These events apparently gave rise to anxiety on the part of the respondent in respect of a possible risk of breast cancer. They did not, by themselves, cause the adjustment disorder. That was caused, according to the evidence of Dr Petroff, by the perceived risk apparently materialising. If there were medical evidence directly associating the pre-diagnosis fear of breast cancer with the adjustment disorder, it was not identified by the primary judge.

(b) employment-related susceptibility 28The second factor which may have permitted a finding with respect to the contribution of the employment to the certified infirmity was the prior work history, which may have rendered the respondent susceptible to a psychological condition of that kind. Thus, assuming that the immediate cause of the adjustment disorder, namely the diagnosis of breast cancer, was not work-related, it may have triggered the adjustment disorder in a person who was already anxious and subject to stress, arising from the conditions of her employment. 29Such a conclusion would not be inconsistent with the nature of the certified infirmity. While it is true that the diagnostic criteria specified in DSM IV are emotional or behavioural symptoms in response to an identified stressor or stressors, where such symptoms occur within three months of the onset of the stressor or stressors, such a requirement does not appear to be inconsistent with a person being susceptible as a result of earlier events. 30It is necessary, therefore, to turn to the reasoning of the primary judge to understand how the earlier events were relied upon in respect of the certified infirmity. 31The first significant point is that the primary judge appears to have found a causal link between the respondent's employment and her certified infirmity based on her fear of breast cancer: at [170]. This was said to have arisen between "November 1994, and December 1999". This statement is somewhat imprecise in the sense that it was not correct that her left breast was "traumatised" between those dates, but rather that there were two separate incidents, one in December 1994 and the other in December 1999: described by her Honour at [80] and [97]. Nevertheless, there is a finding, supportable on the evidence, that the respondent became anxious during that period about performing general policing duties with the risk of physical assault to her left breast. 32There was then reference in the judgment to her anxiety being "compounded" by the ineffectiveness of her "legitimate complaints" to the Equal Opportunity Unit of the Police Service: at [170]. This language seems causally inapt in that the only complaints of harassment were apparently made in 1983 and 1984: as described by her Honour at [75] and [77]. The other factors relied upon in this passage occurred between the two injuries to the left breast. Thus, there was reference to the suicide at Lismore which occurred in July 1997 (at [6] and [83]), and the "predatory behaviour" of male officers, apparently a reference to conduct at Lismore Police Station in October-December 1997, referred to at [84]-[85]. 33After the fall of December 1999, no event was identified in her Honour's conclusions until the discussion of the decisions in respect of the respondent's sick leave made by the Police Service in May and June 2005. The conclusions thus make no reference at all to the stressors relied upon by Dr Petroff in diagnosing the certified infirmity, namely the diagnosis of carcinoma, the surgical removal of the left breast and radiotherapy in March, May and August 2003. In the course of discussing the breast cancer diagnosis and treatment, her Honour made no finding that it was "work-related". It follows that she identified no work-related stressor during the period of three years prior to diagnosis with breast cancer. The events which "caused and aggravated" the respondent's adjustment disorder were apparently those to which reference had been made in the preceding three paragraphs: at [173]. In the event, she appears to have concluded that the "adjustment disorder with angry and depressed mood", as diagnosed in July 2005, was caused, at least in part, by the sexual harassment and the fear of breast cancer, generated out of what her Honour had earlier identified as being "apprehensive about further traumata to her left breast and her implants": at [103]. The causal connections were not addressed.

(c) post-2003 events 34The precise import of [172] is unclear. The paragraph refers to events of May and June 2005. The respondent's "Special Sick Leave" was made available in accordance with policy provisions which appear to have required that the relevant decisions be made by the Commander of the unit with which she was then associated, namely the Counter Terrorist Co-ordination Command. At the relevant period, it was under the command of Detective Chief Superintendent Mark Jenkins. On 29 March, and again on 3 May 2005, Commander Jenkins wrote to the respondent noting that he had been unable to contact her on her mobile telephone. The respondent saw a Dr William Kirby, Police Medical Officer, on 27 April 2005. Having received his report, further inquiries were apparently made through a staff administration officer, Ms Michelle Saunders and the Police Service "Return to Work Co-ordinator", Ms Karen Harbrow. On 3 May 2005, Commander Jenkins wrote to the respondent noting that it appeared from Dr Kirby's report that her circumstances had changed "relative to your illness, which does not appear to readily fall into the allowable provisions of the Special Sick Leave Policy". 35The primary judge had set out the emails between Ms Saunders, Ms Harbrow and Commander Jenkins at [161]. They indicated, as her Honour noted, a level of exasperation on the part of Ms Saunders with the respondent. After setting out the emails, the primary judge noted at [161]: "Ms Dalziel was angry. Reasonably, she assumed that she had been exploited by the Counter Terrorist Co-ordination Command." 36There was no reference to any evidence that Ms Dalziel was aware of the exchange of emails at the time they took place, or at any time prior to the proceedings. The reference to "exploitation" is also obscure. Nor is it entirely clear that this material explains the meaning of the reference to Commander Jenkins (and the other officers) having relied upon Dr Kirby's report "opportunistically" to deprive the respondent of special sick leave. 37On 1 June 2005, Commander Jenkins wrote again to the respondent noting that he had already spoken to the respondent's representative from the Police Association, Ms Malouf, on 18 May 2005, indicating that there were "insufficient details within the HOD claim to justify myself to approve Special Sick Leave outside of the current Special Sick Leave Guidelines". He also stated that he would be prepared to consider the claim further if additional medical advice were supplied. He also noted that the respondent's leave entitlements would be "exhausted as at 20 May 2005" and that thereafter she would be on sick leave without pay. 38Commander Jenkins wrote again to the respondent on 17 June 2005, noting that reinstatement on special sick leave had been requested on the basis that a medical discharge application had been lodged on her behalf. He noted that no such application appeared to have been received and that the grant of further special sick leave would be considered after receipt of the application. In due course, the application was received and Commander Jenkins wrote again to the respondent on 21 June 2005 advising: "With consideration of the above information and in accordance with the Special Sick Leave Guidelines & Procedures you have met the specific criteria to permit an entitlement to Special Sick Leave." 39Commander Jenkins did not give evidence. Although her Honour stated that he had "reversed his decision" that the circumstances of her illness had changed (referring to the letter of 3 May, to that effect) it is not entirely clear why she characterised him as acting "capriciously": see [172] and [165]. In the course of oral submissions, counsel did not seek to explain this language, but rather treated her Honour's descriptors as indicating that Commander Jenkins had acted "unreasonably". Why that was so was not entirely clear either, but it could have been a finding under s 11A of the Workers Compensation Act, which excludes compensation where "the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer" with respect to employment benefits. Although there was a challenge to her Honour's finding in that regard, the medical evidence did not suggest that the injury was "wholly or predominantly caused" by any action taken after 2003, whether reasonable or otherwise, and accordingly, the challenge to that defence must fail. In any event, it seems that the events of May and June 2005 were treated as aggravating the respondent's adjustment disorder, rather than causing it.

Error in point of law 40The difficulties which inhere in the judgment below are apparent from the respondent's submissions on the appeal. In relation to the diagnosis and treatment for breast cancer, the respondent submitted in writing (par 7): "Although there was no express finding as to whether the certified infirmity had been caused by the diagnosis of breast cancer, per se, in 2003, it is implicit from the finding at paragraph 171 of the judgment, that Ms Dalziel's 'intractable' psychological condition had developed before the breast cancer diagnosis. It follows that her Honour had rejected the [Commissioner's] contention that the breast cancer diagnosis was the only cause of the infirmity." 41There are difficulties with this submission. First, the "intractable work-related depression and suicidal ideation" are not equated with the certified infirmity. Nor, on the medical evidence, should they have been. Secondly, on the assumption that there were two separate conditions, it was erroneous to suggest that compensation could be made available in respect of that described above, to the extent that it differed from the certified infirmity. Thirdly, as explained at [171] the respondent had developed the intractable condition there identified by January 2000. It did not give rise to any application at that time for medical discharge; on the contrary, the respondent continued to work as a member of NSW Police for some years thereafter. Fourthly, although it might be inferred that the condition which then existed was a substantial contributing factor to the certified infirmity, there was medical evidence to the contrary which precluded that being the only available inference. It follows that, in this critical respect, her Honour failed to identify and address the correct question. 42Next, the respondent referred to "the chronological development of Ms Dalziel's relevant psychological symptoms" at [75]-[169]. She submitted that this "passage is punctuated with numerous references to Ms Dalziel's distress at various events and the 'persistence' of her depression, anxiety and anger". The submissions further noted her Honour's acceptance of the key features of the certified infirmity in the following terms at [69]: "The preponderance of evidence supports Dr Anderson's inference that changes of mood, depression and anger were prominent features of the major psychiatric illness, diagnosed by Dr Petroff." 43Again, however, the submission is inadequate to the task. First, in the previous sentence in [69], the primary judge had identified Dr Anderson's inference as being that "Dr Petroff had diagnosed Ms Dalziel's maladjustment to the cumulative circumstances of New South Wales Police Service's failing to support her, early in her career, of her breast cancer and of the suicide she had attended at Lismore". However, Dr Anderson had expressly disagreed with the stressors relied upon by Dr Petroff as the precipitating factors: Tcpt, 26/03/09, p 301. He noted that Dr Petroff "took a history of symptoms that followed the diagnosis of breast cancer and didn't have a history of earlier symptoms". Dr Anderson inferred the absence of an earlier history because Dr Petroff did not "make any reference to any earlier history or any earlier material". 44Secondly, if the diagnosis and treatment for breast cancer were not a stressor (or group of stressors) to which employment was a substantial contributing factor, there needed to be an express finding, either that the certified infirmity could (contrary to DSM IV) be accepted without an immediate stressor, or a finding that the employment was otherwise a substantial contributing factor despite the fact that, in relation to the identified stressor, it was not. No such finding was made, nor implied in circumstances where it could be accepted that the correct question was identified and answered. 45Thirdly, whilst reasons should not be read with an eye finely attuned to error, in circumstances where the evidence of the respondent was dealt with chronologically, without precise identification of the issues to be determined, there is a real concern that the question in fact answered was whether her employment substantially contributed to her current psychological condition, rather than the correct question, namely whether her employment substantially contributed to the certified infirmity. The misstatement of Dr Anderson's inferences, in respect of the infirmity identified by Dr Petroff, precludes an assumption that her Honour's final conclusion was directed to the correct issue. 46Finally, it is necessary to bear in mind the purpose for which the infirmity was certified under s 10B of the Superannuation Act . The certificate identified a specific infirmity as the basis for the conclusion that the member was "incapable, of personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990" : s 10B(1). The relevant functions are those "conferred or imposed on a constable" by or under any law. In his report of 26 July 2005, Dr Petroff expressed the opinion that "no psychiatry in the world will ever return her back to police work as firstly she attributes it to developing cancer and secondly, is so phobic about further injury to herself that she would be a liability in pressure situations". In adopting that view, he appears to have accepted her own assessment of her circumstances, which he had expressed in the previous paragraph in the following terms: "Miss Dalziel continues to insist that she could never put on a police uniform or wear a gun ever again, as she is likely to react unprofessionally if there is even the slightest chance of being hurt physically and is likely to discharge a gun inappropriately." 47For much of the time after 1999, the respondent worked with the Counter Terrorist Co-ordination Command. However, for the early part of that period she continued to work at Lismore Police Station. In several passages, her Honour repeated statements to the effect that the respondent "hated working at Lismore Police Station"; "felt really suicidal" as a result of "a lot of factors"; that her relationship with a policeman had disintegrated; that there were salacious "rumours & innuendo" about her at the station and that a male police officer was harassing her at work: at [90] and [104]. There was no finding that she was medically incapable of discharging the functions of a constable at that time: nor did the medical evidence support such a finding. 48The failure to make a finding as to what particular stressors caused the certified infirmity resulted in her Honour making a decision which was erroneous in point of law. In these circumstances, the appeal should be upheld. The Commissioner accepts that the matter must be remitted to the District Court for redetermination in accordance with law. That order should be made. 49The Commissioner also seeks an order that the respondent pay the Commissioner's costs of the appeal. There was no submission resisting such an order. Accordingly that order is also appropriate.

Orders 50The following orders should be made: (1) Allow the appeal and set aside the orders made in the District Court on 18 August 2010. (2) Direct that the District Court redetermine the appeal from the Commissioner's decision of 1 November 2006 according to law. (3) Order the respondent to pay the Commissioner's costs in this Court. (4) Grant the respondent a certificate under the Suitors Fund Act 1951 (NSW). 51WHEALY JA : I agree with Handley AJA. 52HANDLEY AJA : This is an appeal from the decision of O'Toole DCJ of 18 August 2010 in the Residual Jurisdiction of the Court. The Judge allowed an appeal under s 21(1)(a) of the Police Regulation (Superannuation) Act 1906 (the Act) by former Sergeant Dalziel (the plaintiff) from a decision of the Commissioner under s 10B(3). 53On 30 March 2006 the STC (the SAS Trustee Corporation), acting under s 10B(1) on medical advice certified the plaintiff incapable, from the infirmity of " adjustment disorder with angry and depressed mood " of personally exercising the functions of a police officer. 54On 7 April 2006 the plaintiff was discharged from the Service pursuant to that certificate. It is not in evidence and the material before the Court does not further identify its terms. Thus it is not known whether the certificate referred to the medical advice on which the STC acted, or whether it identified when the infirmity arose and became disabling. The plaintiff did not appeal from that decision of the STC within the six-month period in s 21(1), and it can no longer be challenged. 55On 1 November 2006 the Commissioner, by his delegate, decided under s 10B(3)(a) that the certified infirmity was not caused by the plaintiff "being hurt on duty". If that decision stands the plaintiff is not entitled to the higher superannuation allowance payable under s 10(1). 56The plaintiff appealed from that decision to the District Court pursuant to s 21(1)(b). The issue in the appeal was whether the infirmity specified in the s 10B(1) certificate "was caused by ... the former member being hurt on duty when ... a member of the police force." 57Hurt on duty is defined in s 1(2) as meaning "injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987 (the 1987 Act), entitle the member to compensation under that Act." 58The primary Judge allowed the appeal, set aside the Commissioner's decision and substituted a decision that "The suffering by [the plaintiff] of the infirmity of 'adjustment disorder with angry and depressed mood' as specified in the Certificate ... dated 30 March 2006 was caused by [the plaintiff] being hurt on duty ... Date of injury: between October 1997 and 26 July 2005". 59The Commissioner has appealed as of right to this Court pursuant to s 142N of the District Court Act. The appeal is limited to "an error in point of law". Basten JA has concluded that the primary Judge erred in point of law and that the matter must go back for a retrial. I have the misfortune to differ. In my opinion the primary Judge did not so err. 60On 26 July 2005 Dr Petroff, the plaintiff's treating psychiatrist, concluded that her nervous symptoms were: "best labelled under the category of Adjustment Disorder with Angry and Depressed Mood with symptoms of at least moderate severity. This followed having cancer diagnosed in March 2003, then having it surgically removed in May 2003 and then having radiotherapy in August 2003. She became convinced that it was the police work and in particular being hit in the breast on several occasions that she can remember that produced her breast cancer. She was also absolutely convinced that returning to work would result in her cancer coming back. She was further aggravated by the police department wanting her to return to work. She became convinced that the police department had no compassion, that nobody there contacted her or cared about her." 61The Judge found that the plaintiff's injury arose between October 1997 and 26 July 2005. The former was based on her findings in [84], [85], and [171] that in and after October 1997 the plaintiff was exposed to ridicule, embarrassment, and sexual harassment from male colleagues at Lismore Police Station. The 26 th July 2005 was the date of Dr Petroff's principal report. 62The Judge found in the section of her reasons headed "Conclusions", [170] that the plaintiff's left breast was traumatised in the course of her police duties when she was assaulted by a female offender at Moree in November 1994, and when she fell down stairs at Lismore Police Station in December 1999. She became anxious about performing general duties with the perceived risk of further injury to her breast. She feared breast cancer. 63The Judge found [170] that her anxiety was compounded by being confronted with the body of a young woman who had committed suicide, and by the "predatory behaviour of male police officers". In the same section she also found [171] that between October 1997 and January 2000 the plaintiff developed "work-related depression and suicidal ideation" and that "Her symptoms waxed and waned with her police duties" and her medication. 64The Judge referred, [172], to events in the early months of 2005 when the plaintiff sought permission to continue working in a real estate agency and approval for further special sick leave. Detective Chief Superintendent Mark Jenkins, the officer in charge of Counter Terrorist Co-ordination Command, to which the plaintiff had been attached, told her that he required doctors' certificates to warrant further special sick leave. These must have been obtained because she continued to receive sick leave. 65On 24 January the plaintiff's application for permission to continue working in the real estate agency was refused (blue 38). On the same day Dr Hase, a psychologist, who had seen the plaintiff three times since July 2004, wrote to Superintendent Jenkins (blue 69). He reported that the plaintiff "has been suffering from Depression and symptoms of anxiety", that her condition was a result of her police work, and that she would never be able to return to police duties. 66The plaintiff continued to work in the estate agency. On 2 March steps were taken to determine her fitness to return to duty. She was examined by Dr Kirby, a police medical officer, on 27 April. He reported that day (blue 147) that the plaintiff was currently unfit for full operational duties because she was suffering symptoms of major depression. His report was sent by e-mail to Superintendent Jenkins the same day. 67This e-mail received at 16.14 triggered a series of e-mails between the Superintendent, Karen Harbrow, the Service's Return to Work Coordinator, and Michelle Saunders, the Staff Administrative Officer in the Command [160]. Ms Saunders sent Ms Harbrow an e-mail at 1646 stating that because the plaintiff's cancer was in remission "we can pull her special sick leave". At 1202 the next day Ms Saunders forwarded to Superintendent Jenkins an e-mail received from Dr Kirby who confirmed that the plaintiff's cancer was in remission and was not life-threatening. Her covering e-mail stated: "Something to make your day - see below ... Just give me a date that you want [her] pay cut!" 68The Judge earlier referred to this evidence and said that the plaintiff was angry [161], but this was not related to the e-mails which did not come to her attention at that time. The exhibits cited by the Judge in para [161] reveal that the plaintiff was angry with the Police Service for other reasons. 69The plaintiff's counsel had the emails marked for identification 26 shortly before the close of his case (black 464). When tendered there was an objection on the ground of relevance (black 471). The plaintiff's counsel said that they were relevant to an issue under s 11A of the Workers Compensation Act (black 472). The objection was later withdrawn and the e-mails were admitted as exhibit Y (black 476). 70In [172] of her Conclusions the Judge said: "Opportunistically, Mr Mark Jenkins, Ms Karen Harbrow and Ms Michelle Saunders relied on Dr Kirby's report to deprive Ms Dalziel of Special Sick Leave. Consequently Ms Dalziel decided to apply for medical discharge from the Police Service. Capriciously Mr Jenkins reversed his decision that the 'circumstances' of Ms Dalziel's illness had changed." 71These conclusions are explained by earlier findings in [162], [164] and [165]. On 3 May Superintendent Jenkins wrote to the plaintiff (blue 191) informing her that Dr Kirby's report changed the circumstances of her illness and she was no longer entitled to special sick leave. Her remaining leave entitlements expired later and on 16 June she sought to have special sick leave reinstated (blue 193). 72The plaintiff's hurt on duty claim was received shortly afterwards and on 21 June Superintendent Jenkins reinstated her special sick leave as of that date (blue 194). This reversed his earlier decision, that circumstances of the plaintiff's illness had changed, that the Judge referred to in [172]. 73The Judge said in the final paragraph of her "Conclusions" [173]: "Cumulatively those events caused and aggravated Ms Dalziel's adjustment disorder with angry and depressed mood. I conclude that Ms Dalziel's employment in New South Wales Police Service since 12 January 1997 was a substantial contributing factor to her specified infirmity. The Commissioner of Police does not persuade me that the infirmity was wholly or predominantly caused by his reasonable action in refusing Ms Dalziel's Special Sick Leave, in refusing his permission for secondary employment or in his discontinuing her appointment under s 66 of the Police Act." 74The "events" in [172] which the Judge found were part of the accumulation that "caused and aggravated" the plaintiff's adjustment disorder were the cutting off of her special sick leave on 3 May 2005, and the reversal of that decision on 21 June. The plaintiff was not aware of the contents of the e-mails and they were not part of the causative events referred to in para [173]. 75The reference to the 12th of January 1997 in [173] is explained by the commencement that day of s 9A inserted in the 1987 Act by Act No 120 of 1996. Section 9A(1) provides: "(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury." 76The Judge's conclusion in the third sentence of [173] was relevant because s 11A(1) of the 1987 Act provided: "No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, ... or provision of employment benefits to workers." 77The central issue in this appeal is whether her Honour's conclusions in para [170]-[173] evince any error "in point of law". 78The distinction between errors of law and errors of fact was illuminated by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 155-6. His Honour said, omitting citations: "The question whether there is any evidence of a particular fact is ... a question of law ... But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law ... It is ... pointless to submit that the reasoning by which the Court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law ... A finding of fact ... may nevertheless reveal an error of law where it appears that the trial Judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date ... Errors may be committed ... at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law ..." 79The Judge's conclusions in paras [170]-[173], read in the context of her findings in [160]-[165], were conclusions of primary fact which could only be challenged for legal error if there was no evidence to support them. The Commissioner did not assert error of this kind. 80Basten JA, as I read his Honour's reasons, considers that her Honour misdirected herself, that is defined for herself, otherwise than in accordance with law, the question of fact she had to answer namely the identification of the stressors which caused the certified infirmity. 81As Basten JA states [7] the parties accepted that the plaintiff's infirmity was that identified by Dr Petroff in his report of 26 July 2005. However this consensus did not incorporate into the certificate the history recorded by the doctor or his conclusions on causation. The specified infirmity was the plaintiff's adjustment disorder identified in the certificate. Its causation was a matter for the District Court. 82I agree, with respect, with Basten JA's conclusion [19] that the reference to the plaintiff's adjustment disorder in the certificate was a reference to the relevant parts of DSM IV. This was the view of both psychiatrists who gave oral evidence at the trial, Dr Peter Anderson, qualified for the plaintiff (black 298, 299, 300, 306, 310 and 397) and Dr Lisa Brown qualified for the defendant (black 336-7, 345). 83Basten JA continued [9]: "However, one consequence of that conclusion is that attention must be paid to the diagnostic criteria which include, first, '[t]he development of emotional or behavioural symptoms in response to identifiable stressor(s) appearing within three months of the onset of the stressor(s)'." 84Again, with respect, I agree, but in my opinion this does not convert the diagnostic criteria in DSM IV into questions of law. Those criteria raise questions of fact and any error in their construction or application was an error of fact. 85In my opinion when Basten JA in [10] identified "the critical question" as whether the plaintiff's belief, in a causal connection between the injuries to her breast and her cancer, was sufficient, he was not identifying a question of law. The causation of the plaintiff's infirmity was and remains a question of fact. 86The Judge found [171], [173] that the plaintiff's adjustment disorder arose before her cancer diagnosis and independently of it. She identified various stressors in the course of the plaintiff's police service and does not refer in her conclusions to the cancer diagnosis, the surgery, or the radiotherapy. There was ample support in the evidence of Dr Peter Anderson for these findings (Black 301, 302, 303, 305, 309, 310, 311, 398, 399-400, 408, 411, 413, 414, 422, 424, 439, 447, 449, 450). 87The trial Judge said [69]: "The preponderance of evidence supports Dr Anderson's inference that changes of mood, depression and anger were prominent features of the major psychiatric illness diagnosed by Dr Petroff." 88In Dr Anderson's opinion the plaintiff's adjustment disorder was diagnosable in 1999 (black 309, 311, 408), and the symptoms preceded the diagnosis of her breast cancer (black 424). He took into account the DSM IV guidelines on stressors (black 411, 422, 447, 450). 89The trial Judge's conclusions [171] that the plaintiff had developed intractable work-related depression and suicidal ideation by January 2000, and [173] that the work-related events referred to in paras [170]-[172] had "caused and aggravated" her certified adjustment disorder, were open to her on the evidence she accepted. In my opinion those findings were not vitiated by legal error. 90As Basten JA records [18] the Commissioner did not press inadequacy of reasons as a separate ground of appeal. Any inadequacy in the Judge's fact finding process was an error of fact, as Glass JA explained in Azzopardi . 91The Commissioner, as Basten JA finds [24], did not separately challenge the Judge's finding that the plaintiff's employment was a substantial contributing factor to her injury within s 9A of the 1987 Act. He also concludes [39] that the medical evidence did not support a finding that s 11A of the 1987 Act was engaged. 92In my judgment therefore the Commissioner has failed to demonstrate any error in point of law and the appeal should be dismissed with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 September 2011

Suitors Fund Act 1951(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (7)