Grose v Commissioner of Police

Judgment 1This is an application under s 21 of the Police Regulation (Superannuation) Act 1906. The defendant has formally admitted that the plaintiff was attested as a constable of police on 19 December 1986 and thereupon became a contributor to the Police Superannuation Fund established under s 3 of the Police Regulation (Superannuation) Act 1906 (the Act). The defendant has also formally admitted that the plaintiff performed general duties, intelligence duties and analyst duties at the Lithgow Police Station, in the Shoalhaven Local Area Command at the Nowra, Lake Illawarra and Warilla Police Stations and that he also performed duties with the Regional State Protection Group and the New South Wales Water Police. The defendant has also admitted that on or about 19 December 2010 the plaintiff made an application for medical discharge from the NSW Police. 2The following further facts are also admitted. On 30 June 2011 the Police Superannuation Advisory Committee (PSAC), established under the Act, issued a certificate that the plaintiff was incapable of performing the duties of a police officer due to the infirmity of "chronic post-traumatic stress disorder and osteoarthritis of the right knee". On 7 July 2011 the defendant issued a certificate pursuant to s 10B(3)(a) of the Act accepting that the infirmity of "osteoarthritis of the right knee" was caused by the plaintiff's having been hurt on duty. On 14 July 2011 the defendant issued a further certificate pursuant to s 10B(3)(a) advising that the infirmity of "chronic post-traumatic stress disorder" was not caused by the plaintiff's having been hurt on duty. 3The application that has been made to this Court is that the decision of the Commissioner of Police made on 14 July 2011 be set aside and that in lieu of that decision the Court determine the suffering by the plaintiff of the condition of "chronic post-traumatic stress disorder" was caused by his having been hurt on duty. 4Paragraph 35 of the defence upon which the defendant relies is this: "In answer to the whole of the Statement of Claim, the defendant denies that the plaintiff contracted a disease in the course of his employment with the defendant and to which employment was a substantial contributing factor and challenges the post-traumatic stress disorder infirmity as contained in the PSAC Certificate." Essentially the parties ask me to deal with the defence raised in par 35 of the defence as the first issue in the case, as it could lead to a substantial shortening of the matter. 5The matter can be approached in another way. The defendant seeks to rely on a report of Dr Graham Vickery of 16 June 2011 following upon that medical practitioner's consultation with the plaintiff on 6 June 2011. Dr Vickery is a consultant psychiatrist. The report in question is MFI 1. Dr Vickery has expressed the view that the plaintiff does not suffer from post-traumatic stress disorder (PTSD) and that there is no objective evidence of incapacity and that there is no work-related psychiatric injury and that the plaintiff is, in essence, capable of returning to duty as a sergeant of police. 6The question really is whether the defendant can challenge the certificate of PSAC that the plaintiff suffers from chronic PTSD. The matter is not without authority. Innes v Commissioner of Police (1995) 13 NSWCCR 27 was a decision of my now retired colleague, Burke J. Commencing at 29F his Honour said this: "In this matter there is a certificate by the Board [now STC], through its delegate, which decides that the former officer suffers a post-traumatic stress disorder and that by reason of that infirmity he is incapable of discharging the duties of his office. Section 21(1)(a) provides that a person aggrieved by any such decision may, within the time stipulated, apply to the Compensation Court to redetermine the matter. Quaere, could the Commissioner be so aggrieved? In any event, no such application was ever made by anyone. It appears then that such decision stands immutably. Counsel for the parties were invited to give me some guidance as to whether the question of the former officer suffering such condition and being "incapacitated" as stated was open to any reconsideration by me in this matter. Counsel for the Commissioner was content to say 'you can' and counsel for the former officer to say 'you cannot' and both returned to the more entrancing task of considering the rather convoluted facts. With four days of evidence there was no shortage of facts. My prima facie view was that I probably could not re-agitate the question of whether the applicant had a post-traumatic stress disorder or whether he was unable to be a policeman. It seems that the certificate of the Police Superannuation Advisory Committee may be open to 'reconsideration' under s 21(1)(a); if so, no application was made so to do; therefore the certificate stands. It is also arguable that such a decision is reviewable pursuant to ss 26 and 27 of the Superannuation Administration Act 1991, in which case this Court would be the incorrect forum and would lack jurisdiction to entertain such a challenge, not only in this matter but in any matter. Clearly no such application to the appropriate tribunal has been made either. The present applicant therefore at all relevant times is to be regarded as suffering post-traumatic stress disorder and as being incapable of discharging the office of a member of the police force as certified by PSAC. This view is compatible with that of Egan J in Carroll v Commissioner of Police, Compensation Court, No. 4089/89, 6 December 1990, unreported, where he held that on an application for a determination arising out the decision of the Commissioner under s 10B(3)(a) it was not open to reconsider the nature of the condition suffered by the officer but merely whether that stipulated condition resulted from the officer being hurt on duty. That case raised different issues in that it was suggested that the condition referred to was not the condition that incapacitated the applicant. Indeed it referred to a condition that the applicant suggested he did not suffer and never had suffered. A couple of paragraphs in the judgment are an elegantly concise summary: 'The decision of the Commissioner is restricted. It appears to me that he can, in terms of the section, only look at the infirmity to which the certificate relates. That is to say, he is bound by the certificate. It is only the decision of the Commissioner based on that certificate which can be the subject of appeal to this Court. It follows therefore it is, in my view, not open to this Court to determine on appeal whether or not the Police Medical Board was correct or not in its determination that the infirmity which the applicant suffered was a persona disorder.' Much the same follows from the decision of Manser J in McLellan v Commissioner of Police, Compensation Court, No. 7487/90, 6 July 1993, unreported, in which his Honour adopted as correct the following statement in the written submission of Mr Neilson (as he then was): 'The power of this Court is either to confirm that decision (of the Commissioner) or to set it aside and replace it by a different decision. However, the Court cannot make a decision that could not be made by the Commissioner of Police: s 21(5). The only power of the Commissioner in the whole scheme of the Act is to certify whether a specified condition of body or mind was a result of the member's being hurt on duty. The Commissioner has no role to play whatsoever in certifying the nature of the incapacity. That is left to the Board, its delegate PSAC and such medical advice as it wishes to rely upon.' It might be added, that notwithstanding such opinion, his Honour proceeded to canvass the amenability of the PSAC decision to review by the Court, but, in the eventuality, decided that the condition as so certified did result from the officer being hurt on duty." 7Accordingly, there are decisions of Egan and Manser JJ to the effect that it is not open to the current defendant, the Commissioner of Police, to litigate the issue of whether the plaintiff suffers from the certified infirmity. There is also the prima facie view of Burke J to the same effect. 8One must now turn to the decision of the Court of Appeal in Saad v Commissioner of Police (1995) 12 NSWCCR 70, a decision which was handed down on 4 August 1995 that was not referred to by Burke J because his decision was given on 5 June 1995. The decision in the Court of Appeal was that of Rolfe AJA with whom Kirby ACJ and Handley JA concurred. That was an appeal from a decision of Truss J sitting in the Compensation Court. Commencing at 75E his Honour said this: "The issue tendered for the determination of the Compensation Court was whether the infirmity described in the certificate was causally related to the performance by the appellant of his duties with the respondent on 2 April 1990. The matter came before Truss CCJ on 23 June 1994. Her Honour gave judgment on 30 September 1994. Although it has been submitted that her Honour failed to direct attention to the appropriate question, this submission, in my view, should be rejected. I shall indicate why by reference to her Honour's reasons. Her Honour was bound to accept, as she did, that the appellant was suffering from the infirmity. That her Honour understood the issue is made clear in the first two pages of her judgment." His Honour then went on to quote those paragraphs of her Honour's reasons for judgment in which her Honour said that the only issue that she was required to determine was whether the applicant in that case was "hurt on duty" as defined, there being no issue before her as to the applicant's condition as had been certified by PSAC. Accordingly, the judgment in Saad is direct authority for the proposition that the Court was bound to accept that the former member of the Police Force was suffering from the infirmity certified by PSAC as agent of the STC. 9The next decision which should be noted is that of Murray v COP [2004] NSWCA 365; (2004) 2 DDCR 31. That was a decision of Tobias JA, with whom Giles and Ipp JJA concurred. That case illustrates the certified infirmity may be changed. In that case PSAC specified the infirmities of "adjustment disorder, depression and alcohol abuse". PSAC did not accept that the appellant in that case was incapacitated by reason of PTSD. The appellant disputed the certificate given by PSAC on behalf of STC and that dispute was determined pursuant to s 67(1) of the Superannuation (Administration) Act 1996. The STC Disputes Committee confirmed the decision of PSAC that the appellant only suffered from the three original infirmities as certified and not from PTSD. The appellant then appealed to the Industrial Relations Commission, which was comprised by Glynn J. Her Honour upheld the appeal. She determined that the appellant was suffering from PTSD and was incapable of discharging the duties of his office on account of that additional infirmity. The Commissioner of Police determined that all of that appellant's infirmities, the original three certified by PSAC and that added by order of the Industrial Relations Commission, were not caused by his having been hurt on duty. That application was heard by Ashford J sitting in the Compensation Court. At [41] Tobias JA said this: "After considering the appellant's transfer was reasonable action by his employer within the meaning of s 11A(1) [of the Workers Compensation Act 1987], the primary judge held that she was satisfied that the respondent had discharged the onus in respect of that provision. In my opinion that conclusion inevitably carried with it a finding that the PTSD from which the appellant was suffering was wholly or predominantly caused by his transfer from the Dog Squad on 8 October 1997. This is a critical finding as will appear." In essence, his Honour pointed out that the evidence did not permit a finding that the PTSD could be caused by a transfer of duty and in so finding her Honour erred in law. 10The first issue that was argued in the Court of Appeal was whether the decision of Glynn J in the Industrial Relations Commission created an issue estoppel. It was held that it did not because the Commissioner of Police was not a privy of the STC. At [48] his Honour said this: "Notwithstanding the arguments for the appellant, I am unable to accept that the respondent was relevantly a privy of STC. Each had their separate statutory functions. In particular, the STC had the statutory task of certifying pursuant to s 10B(1) of the PRS Act, that the relevant member was incapable of discharging the duties of his office. Once such certification was made the respondent was required to decide pursuant to s 10B(3) whether the infirmity was caused by the member being hurt on duty. The respondent had no interest in the STC's certification pursuant to s 10B(1) unless and until the relevant certificate was issued. If it was not, then the respondent had no task to perform. It was only once a member of the police force was duly certified under s 10B(1) that the respondent was required to perform its statutory task. Until that point of time there was no common interest." 11The second issue before the Court of Appeal was essentially that to which I have earlier referred as to whether the evidence was capable of establishing the primary judge's inferential finding that PTSD was caused by the appellant's being transferred from the Dog Squad to general duties. Again, that authority suggests strongly that the only role of the Commissioner of Police after a certificate is granted by PSAC on behalf of STC is to decide whether or not that condition was caused by the police officer's or former police officer's having been hurt on duty. It is essentially consistent with the decisions of Egan and Manser JJ, the prima facie opinion of Burke J and the decision of the Court of Appeal in Saad v Commissioner of Police. 12Prior to the decision in Murray, there were unrelated proceedings in the Industrial Relations Commission of New South Wales. Those proceedings are formally known as COP v SASTC [2002] NSWIRComm 31, a decision of the President, Wright J. They concerned a former police officer Ms Karyn Gitsham and for convenience the decision is often referred to merely as Gitsham. 13The relevant facts in Gitsham can be ascertained from [23(o)] and [24] of the judgment of Wright J. Initially the STC would not certify that Ms Gitsham was incapable of discharging the duties of her office due to any infirmity. She then notified a dispute with the STC, which went to the STC Disputes Committee. On 18 December 1998 the Disputes Committee determined that Ms Gitsham was incapable of carrying out her duties because of the infirmity of "abnormal illness behaviour". I interpolate at this stage that the words "abnormal illness behaviour" could describe anything between psychosis and malingering. Almost two and a half years later a further dispute was notified by Ms Gitsham to the Disputes Committee about the certificate which it had earlier issued. On 6 April 2001 the Disputes Committee issued a fresh certificate certifying Ms Gitsham as being incapable of discharging the duties of her office on account of "generalised anxiety disorder, panic disorder with agoraphobia, PTSD and chronic pain disorder". On 9 April 2001 the STC notified that decision to Ms Gitsham's solicitors. On 11 April 2001 the STC requested the Commissioner of Police to issue a certificate in terms of s 10B(3)(a) in regard to the new certified infirmities. Rather than making any such decision the Commissioner of Police commenced an appeal in the IRC. It nominated the STC as the respondent to the appeal. Ms Gitsham then sought leave to be added as a party to the proceedings. Essentially the key issue for the IRC to determine was whether the Commissioner of Police was a "person aggrieved" by the determination of the STC on 6 April 2001 within the meaning of s 88 of the Superannuation Administration Act 1996. 14After considering the statutory scheme and normal principles of statutory interpretation, Wright J said this: "55. Applying that approach and principle to s 10B I consider the appropriate construction is that the legislature has determined the function of making the decision in the public interest and that in the interests of the Fund under s 10B(1) or, for that matter, under s 10B(2) is that of the STC and also the function of issuing the relevant certificate. As earlier indicated, in doing so the STC is obliged to have regard to medical advice which, depending on its consideration of the matter and, no doubt the availability of the members of the Police Medical Board, could be the advice of two members of that Board with the specialist skills and expertise which they would bring to the task. The certificate having been issued, it is then the role, not of the STC, but of the Commissioner of Police to make the decision as to whether the infirmity, the subject of the certificate, was caused by the police officer or former police officer being hurt on duty, and also to make a subsequent determination such as the date or dates when that occurred, if relevant. 56. The terms and structure of s 10B make clear the differing roles of the STC and the Commissioner of Police. There is no reason to consider, having so distinguished those roles, that the legislature intended to blur them or to give one decision-making body a role in relation to the area which is allocated to the other. The fact that a step such as that taken by the applicant [Ms Gitsham] here has caused, undoubtedly in good faith, the STC to amend its certificate under 10B(1), and which may make more difficult for the Commissioner of Police any contest before the Compensation Court that he is involved in, subsequent to a further decision made under s 10B(3) is, in my view, not to the point. Properly construing the legislation, the Commissioner has not only the primary responsibility but the responsibility as to whether a particular infirmity has been caused in a hurt on duty situation and in dealing with appeals to the Compensation Court in relation to that matter. However, the legislature has not allocated or given the Commissioner the role or responsibility of dealing with the question of the certification, having regard to medical advice, in terms of the matters to be determined under section 10B(1). 57. That construction and approach to the legislation, in my view, renders a very complex scheme as rationally workable as might be possible having regard to its complexity. Although the legislation may not quite be described, as the High Court did of the scheme in the Superannuation Act 1916, as labyrinthine, it is not far from that situation. However, once one reaches this conclusion - and even though one must, for the reasons already given, ascribe to the operative phrase in s 88A a wide meaning - it does not follow, having identified the role and the function of the Commissioner in the scheme, that it can be truly said that he is a "person aggrieved" by the subject decision. Rather, that is a matter in respect of which the legislation instructs the Commissioner and obliges him to deal with by making a further determination under s 10B(3)." His Honour then formally held that the COP had no locus standi and dismissed the appeal. 15Speaking extracurially, I have described the scheme under the Act not as "labyrinthine" but suggested it might be described as "Byzantine", but then pointed out that such would be an insult to the public administration of the Eastern Roman Empire. 16Really the case law just establishes what a humble barrister put to Judge Manser 20 years ago that the only power of the Commissioner in the whole scheme of the Act is to certify whether a specified condition of body or mind was a result of the member's being hurt on duty. The Commissioner has no role to play whatsoever in certifying the nature of the infirmity. That is left to the STC and its delegate PSAC and such medical advice as it may wish to rely upon. 17It follows that the defendant cannot raise the matter which is raised in the last clause of par 35 of the Defence filed in these proceedings. It also follows that the report of Dr Vickery is inadmissible because it challenges what I have referred to in other proceedings as "irrefragable facts", the fact that the plaintiff suffers from the certified infirmity and the fact that the certified infirmity causes the plaintiff to be incapable of discharging the duties of his office. In Innes, Judge Burke pointed out the irony of the fact that although he considered himself bound by the certificate granted and the finding of incapacity, he did not feel that the applicant in that case either had the certified infirmity or was incapacitated by it. That is an observation which I have had cause to make from time to time over the last eighteen years. However, such is the way the Act has been structured, such is what Parliament has prescribed, and such is the way in which the Court must proceed. 18The report of Dr Vickery challenges the irrefragable facts and does not give me any alternative explanation for, or any explanation at all for, the causation of the PTSD, which some medical practitioners do even though they may not believe the patient whom they examined suffers from the certified infirmity. Dr Vickery gives no such opinion. His report therefore is irrelevant to these proceedings and inadmissible. I formally reject the tender of MFI 1.