Hazlewood v SAS Trustee Corporation

Colonial Police Act 1850 Police Act 1990 s14 LEGISLATION CITED: Police Regulation (Superannuation) Act 1906 s3, s7, s8, s10B Police Superannuation Regulation 1984 Superannuation Administration Act 1996 s49, s51, s66, s88 Trustee Act 1925

CASES CITED: Favelle Mort Ltd v Murray (1975-1976) 133 CLR 580 Ford, Roger v the State Authority Superannuation Board [1994] NSWIRComm 217

HEARING DATES: 23 November 2007, 2 & 3 September 2008, 19 & 25 September 2008 (written submissions) and 27 October 2008 (further oral submissions)

APPELLANT Mr J Klarica of counsel Solicitor Mr M Hammond LEGAL REPRESENTATIVES: Walter Madden Jenkins

RESPONDENT Mr T Ower of counsel Solicitor Mr R Blume.

Application by Henry Hazlewood to appeal against the decision of the SAS Trustee Corporation given on 18.10.2006

1 This is a superannuation appeal instituted by the appellant, Henry Hazlewood, against the respondent, SAS Trustee Corporation. Mr Hazlewood was formerly a member of the New South Wales Police Force having joined in 1967. He was medically discharged on 5 February 1998, suffering from a number of medical conditions. He became entitled to a superannuation pension. The entitlement to that pension arose under the Police Regulation (Superannuation) Act 1906. Pursuant to the provisions of s 10B(2) of that Act, the appellant was certified as being incapable of discharging the duties of his office as at 5 February 1998 due to a number of specified conditions including: "alcohol dependence, depression and paranoid personality traits." Dependence on certain benefits was also conditional upon the Commissioner of Police determining that the conditions from which the appellant was suffering were caused by the appellant being hurt on duty when he was a member of the police force. The Commissioner of Police determined that none of the specified conditions was a "hurt on duty" condition. 2 Subsequently on 18 August 2005, the appellant applied for an invalidity benefit under the Police Superannuation Scheme on a "hurt on duty" classification based on a medical condition which he nominated as "chronic post traumatic stress disorder." ("PTSD"). By letter dated 18 October 2006, this application was denied. It was ultimately determined by the Disputes Committee of State Super, the respondent in these proceedings. The determination was to the following effect: 1. That Mr Hazlewood did not notify the Commissioner of Police in terms of s 10B(2)(a) of the Police Regulation (Superannuation) Act 1906 before his retirement and within 6 months of receiving the injury which caused the claimed infirmity of mind, namely post traumatic stress disorder, of that injury; 2. Additionally, and in the alternative, there is no sufficient basis to certify in terms of s 10B(2)(b) that Mr Hazlewood was incapable from post-traumatic stress disorder of discharging the duties of his office at the time of his retirement. 3 An appeal lay from that decision to this Court pursuant to s 88 of the Superannuation Administration Act 1996 which is in the following terms. 88 Appeals

(1) A person aggrieved by a determination of STC or an STC disputes committee under section 67 (relating to determination of disputes) may appeal against the determination to the Industrial Relations Commission in Court Session (the Commission). (2) The appeal must be made within 6 months after the appellant is notified of the determination or within such further period as the Commission allows. (3) In dealing with the appeal, the Commission may exercise any function that could have been exercised by STC or the STC disputes committee, as the case may be, in making the determination the subject of the appeal. (4) In dealing with the appeal, the Commission is to have regard to this Act and any other relevant provisions regulating the superannuation scheme concerned and such other matters as it considers to be relevant. (5) In dealing with the appeal, the Commission is not bound by the rules of evidence and may inform itself in any manner it thinks fit. (6) The final determination made by the Commission on the appeal is to be given effect to as if it were a determination of STC. 4 The nature of the appeal and the manner in which it was to be dealt with was not the subject of controversy in the proceedings. It is an appeal by way of a hearing de novo to be determined by reference to the state of the evidence and other material which it is appropriate to consider as at the date of the hearing of the appeal. The statutory background

5 The relevant provisions are to be found in s 10B of the Police Regulation (Superannuation) Act 1906. That section is in the following terms. 10B Medical examination of disabled member and determination of whether hurt on duty

(1) An annual superannuation allowance or gratuity 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. (2) An annual superannuation allowance or gratuity must not be granted under section 10 to a former member of the police force who resigned or retired unless: (a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, and (b) if the regulations so require, the notification was in the prescribed form, and (c) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was incapable, from that 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 at the time of the member's resignation or retirement. (2A) For the purposes of determining a member's or former member's incapacity under this section: (a) STC is not to have regard to the member's or former member's actual rank or position or any functions (other than the functions referred to in subsection (2) (c)) of the member or former member at the time to which the certification relates, and (b) the capacity to exercise a function by delegation is not taken to be a capacity to personally exercise the function. (2B), (2BA) (Repealed) (2C) In this section: medical advice means the advice of: (a) 2 members of the Police Medical Board, or (b) any one or more medical practitioners nominated by the STC.

(3) Where a member or former member of the police force is duly certified under subsection (1) or (2), 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 or the former member having been hurt on duty when he or she was a member of the police force, as the case may be, and the date or dates on which the member or former member was hurt on duty, and (b) give the member or former member written notification of the decision.

6 In summary, in order to succeed on the appeal, the appellant had to demonstrate: 1. That he was suffering from an infirmity of the mind which was capable of being specified. 2. That the infirmity of the mind was caused by an injury. 3. That he had notified the Commissioner of Police of that injury within 6 months of receiving it. 4. That he had so notified the Commissioner of Police before the date of his retirement from the police force, namely 5 February 1998. 5. That it was appropriate to certify that he was incapable, from that infirmity of mind, of personally exercising his functions as a police officer at the time of his retirement. 6. That all of these matters have been established in circumstances where it is appropriate to certify as to them having been established having regard to the obligations, duties and responsibilities of the STC as a trustee of the relevant superannuation fund. The factual background.

7 The following narration is based on evidence given in the proceedings by the appellant and documentary evidence consisting predominantly of histories given by the appellant to a number of medical practitioners whose reports were admitted into evidence and two of whom gave oral evidence in the proceedings. The most detailed account of the appellant's work as a police officer is contained in an amended statement of claim issued by him in the District Court of New South Wales against the Commissioner of Police as defendant in which he seeks orders in the nature of declaratory relief to the effect that the infirmities of alcohol dependence, depression and paranoid personality traits should be characterised as having been caused whilst "hurt on duty." The appellant in evidence said that the material contained in the statement of claim, which described the work that he had performed whilst a police officer, was accurate. I set out [1] to [13] of the narration of facts contained within the amended statement of claim. "1. The Plaintiff was attested as a Constable of Police in the NSW Police Service, as it was then known, in October 1967 and thereupon became a contributor to the 'Police Superannuation Fund' established by Section 3 of the Police Regulation (Superannuation) Act of 1906.

The Plaintiff was initially stationed at the Central Police Station, during which time he attended a number of deceased persons, including having to attend a fatal train accident where a male person was decapitated by throwing himself under a passing train, losing a co-worker, Constable Bermistrew, who was killed in the Hilton Hotel bombing and also the bombing of a travel agent in the city centre.

During 1969 and 1972 the Plaintiff was later stationed at Pyrmont Police Station where he was again required to attend the scene of deceased persons, including having to attend another fatal train accident with a female having committed suicide, attending a serious fire at the CSR laboratories where two males were burnt to death. A further death that remains in the Plaintiff's mind is that of a male person hanging himself in a garage at Ultimo and when the body was cut down he was sprayed with maggots. The Plaintiff was also involved in the investigation of a male suicide with a shotgun in his dwelling house. He also attended a number of deaths on waterfront wharves and the ships, some of which were most unpleasant. The Plaintiff can also recall the death of a small baby caused by the mother placing same near water where the baby subsequently drowned.

Between 1972 and 1984 the Plaintiff was stationed with the Highway Patrol, firstly at North Sydney, thence Kogarah, and during that time experienced many serious and fatal motor vehicle accidents. He was later transferred to Cronulla Highway Patrol and Wollongong and Hurstville, and also the Rescue Squad at Sutherland, including the F6 Expressway, where he was involved in assisting traffic control at the scene of a motor vehicle accident where a family of three were fatally injured in a car accident. A further fatal accident sticks in the Plaintiff's mind where a mother who was a passenger in a stationary sedan in traffic alighted from her car to cross the roadway to make a phone call and was killed instantly by another passing driver.

The Plaintiff also performed duties at the Bass Hill Highway Patrol where once again he was involved in two murder investigations, one of which he was the first on the scene of a murder and attempted suicide, with the female being stabbed in the chest whilst lying in her bed with her partner with his wrist cut. The other being first on the scene of a male person with a tomahawk in head with part of his head being eaten away by the pet dog.

Between 1985 and 1996 the Plaintiff performed general duties at Campsie, where he was again exposed to traumatic incidents of deceased persons. One such matter occurred, a multiple murder-suicide at Campsie, where a male person killed six members of his family and himself. The suicide was witnessed by the Plaintiff and other police. Upon returning to Campsie Police Station after that incident and completing his reports, including attending the morgue, the Plaintiff was not supported by his supervisors but rather asked how much overtime he would incur. This incident caused a great deal of anxiety and distress for the Plaintiff.

During that same period, the Plaintiff was involved in a hostage situation at Kingsgrove where the offender fired bullets over the Plaintiff's head and at the other police who were also at the scene. This caused the Plaintiff further anxiety and distress. The Plaintiff also attended other train fatalities at the Belmore Railway Station and was also required to attend the scene of numerous drug overdoses as well as a home invasion where one of the offenders was shot and killed by the occupier of the home.

Further during that same time the Plaintiff, whilst at the Burwood Police Station, was attached to that section when the station was fired on, causing the front of the building to be moderately damaged. Also whilst at this station the Plaintiff had to deal with such criminals as Christopher Dale Flannery and other well known identities. The Plaintiff was also required to attend a further deceased in Homer Street, Earlwood, where an elderly married couple were found dead on the floor with the kerosene heater on with the wife sitting over the body with stock, also for several days.

During that same period the Plaintiff also performed duties at Lakemba Police Station and was exposed to dealings with the lower class of persons involved in stabbings, assaults, thefts, murders, suicides. Whilst at Lakemba a male person entered the station with a loaded 410 shotgun and pointed same at station staff, fortunately he was overpowered and arrested. Also whilst at this station the Plaintiff was involved in a Sudden Infant Death investigation involving a small baby boy, and this particular incident caused him a great deal of anxiety and distress.

Between 1996 and 1997 the Plaintiff was attached to the Cronulla Police Station and was again exposed to being required to attend drug overdoses, murders, suicides and exposure to deceased persons. One of those played on the Plaintiff's mind that involved the Wayne family, where the husband had battered his wife to death with a claw hammer and then shot himself in the head with a high-powered rifle. The Plaintiff also worked at Menai and Sutherland Police Stations and was further troubled by an incident at Menai where a youth was killed on the roadway in the presence of his father as he was run over by a passing motorist who happened to be a neighbour.

Also whilst at Cronulla Police Station the Plaintiff had arrested a male person for assault female and he was placed on an Apprehended Violence Order however it subsequently became known to the Plaintiff that that male person had hanged himself in the garage of his parents' home. The Plaintiff also became aware a short time later of a similar incident that took place with a male person hanging himself at the Kurnell Caravan Park who was also a victim of a domestic situation. The Plaintiff also arrested the offender involved in a strangulation of another male person at Cronulla during that same period. All of these incidents caused the Plaintiff a great deal of anxiety and distress and as a result in order to cope he found that he would drink alcohol to alleviate his recurrent thoughts. The Plaintiff can recall seeking medical help during which time he was referred to Dr Strum, a Psychiatrist at Hurstville, and placed on Prozac. That treatment was done at the Plaintiff's own expense. He also subsequently was referred to St John of God Hospital at Burwood where he was admitted for 21 days.

The Plaintiff had continuing difficulties performing his policing duties and on 26 June 2003 the Police Superannuation Advisory Committee certified that the Plaintiff was incapable of performing the duties of his office due to the infirmities of 'alcohol dependence, depression and paranoid personality traits'. He was subsequently medically discharged from the NSW Police.

On 12 August 2003 the Commissioner's Delegate, in terms of Section 10B(3)(a) of the Police Regulation (Superannuation) Act 1906, decided that the suffering by the Plaintiff of the infirmities of alcohol dependence, depression and paranoid personality traits as specified in the certificate of the Police Superannuation Advisory Committee, was not caused by him being hurt on duty. It is that decision that the Plaintiff is aggrieved and brings this claim. Medical history

8 The appellant has suffered from a number of medical conditions. The details that follow are extracted from a number of the medical reports admitted into evidence. 9 The appellant had been under the care of Dr Asawa, a general practitioner, since 1990. Dr Asawa, in a report dated 18 August 1997, noted a history of "excessive alcohol intake over the years", a heart condition diagnosed in 1990 and a referral to Dr J Strum, a psychiatrist, in July 1992 for "obsessional symptoms and paranoid about his neighbour." Dr Asawa noted that the appellant was "found unsuitable for psychotherapy as he did not seem to verbalise a lot." 10 In June 1994, the appellant was admitted to St John of God Hospital to undertake a detoxification program by reason of his "alcohol abuse" and also to deal with "obsessional personality traits." 11 In 1996, he was diagnosed with diverticulitis and a benign polyp in his colon. 12 In 1997, he was diagnosed with a duodenal ulcer and Grade III ulcerative oesophagitis. 13 Dr Asawa last saw the appellant on 13 August 1997. He noted a history of complaints by the appellant that his health had suffered a lot in the last two years and that he could not cope with stress at work and the shift work. The appellant told Dr Asawa that "he felt very depressed, hated his work, is very short tempered, angry and paranoid, unable to sleep. He feels a lot of this has to do with his job in the police force and he has had enough of it…" 14 The appellant was examined by a number of medical practitioners, seemingly at the request of the New South Wales Police Service in connection with his application for medical discharge and at the request of the respondent to these proceedings in connection with his claim for superannuation benefits. 15 As at September 1997, Dr Janne Seletto, a police medical officer, noted that the appellant said that he felt "depressed, short tempered and angry and that he worried excessively. He has had disturbed sleep for years. He stated that he has lost patience with members of the community and especially with offenders. He felt that he may not be able to control his actions if he 'does his block'. He says that he 'hates' some of the people he sees on the street. He said that he feels he can no longer cope with the stress of the police environment…". A referral letter from Dr Owen Brookes, whom I assume to be a general practitioner, addressed to Dr George Foster of 3 May 2003 noted that the appellant had both an alcohol problem and depression, and had been under his care for two years. The letter continued: "He has had these problems for 10 to 15 years. I believe that these problems may be related to his prior work as a police officer. During this time he experienced many traumatic situations in his experience. These include exposure to the deceased, witnessing a man shoot himself in the head, searching railways for human remains, a particularly gruesome hanging. While these are part and parcel of policing I believe that his service is the primary cause of these conditions and until we start to explore these issues he will not improve." 16 Dr Margaret Gillies, a gastroenterologist, examined the appellant on 19 March 2002 referred by the respondent. In assessing the appellant, Dr Gillies said: "I have no doubt that his emotional state at the time of discharge was an absolute indication for him to be discharged from the Police Force, and that his experiences within the Force, aggravated his already slightly paranoid and depressive personality…. I am convinced that his personality disorder was aggravated by his 31 years experience in the Police Force and if he had been allowed to continue working, there was a danger he would damage either himself or others…" 17 Dr John Lawson, consultant physician, reported to the respondent on 16 January 1998. Under the heading "Recommendation", Dr Lawson said: "Various medical reports which have been reviewed and summarised above indicate that this man has serious and dangerous problems associated with high alcohol intake. His physical and mental health is affected by this problem. He has physical difficulties and risks associated with continued full-time police work as well as being rendered medically unfit to continue the work because of his altered mental state related to depression and hostile or paranoid ideation. Whether these mental problems reflect the effects of alcohol related brain damage or are due to some form endogenous depressive illness is not explored in the report." 18 Dr Kumar, a consultant surgeon, treated the appellant for diverticulitis. In a report to the New South Wales Police Force dated 28 July 1997, Dr Kumar commented: "In summary, he suffers from depression, as a result of which he has indulged in excessive alcohol intake to relieve his stress factors…" 19 In addition to these reports, there are a number of reports from psychiatrists. As the appellant's claim is based on his assertion that he is suffering from a particular condition, namely post traumatic stress disorder, it is necessary to have particular regard to the psychiatric evidence. Whilst a number of reports were tendered, which I shall shortly summarise, the oral psychiatric evidence in the proceedings was restricted to that of Drs Anderson and McGrath. Post traumatic stress disorder 20 However, before discussing the psychiatric evidence, it is necessary that I set out what appears to be the accepted diagnostic criteria for diagnosing post traumatic stress disorder. These criteria are contained in a publication entitled "Diagnostic and Statistical Manual of Mental Disorders", published by the American Psychiatric Association. The current published edition is the fourth edition and the publication is known colloquially as "DSM-IV". I should add that in referring to this disorder, most of the medical practitioners used the term "post traumatic stress disorder" ("PTSD"). 21 The diagnostic criteria for this disorder as contained in that manual (which became evidence in the proceedings) are as follows (at 427 - 429): A The person has been exposed to a traumatic event in which both of the following were present: 1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate (Criterion A1); (at p 424) 2) the person's response involved intense fear, helplessness, or horror. B The traumatic event is persistently re-experienced in one (or more) of the following ways: 1) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. 2) recurrent distressing dreams of the event. 3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). 4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event 5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. C Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following: 1) efforts to avoid thoughts, feelings, or conversations associated with the trauma 2) efforts to avoid activities, places, or people that arouse recollections of the trauma 3) inability to recall an important aspect of the trauma 4) markedly diminished interest or participation in significant activities 5) feeling of detachment or estrangement from others 6) restricted range of affect (eg, unable to have loving feelings) 7) sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span) D Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following: 1) difficulty falling or staying asleep 2) irritability or outbursts of anger 3) difficulty concentrating 4) hypervigilance 5) exaggerated startle response E Duration of the disturbance (symptoms in Criteria B, C, and D) is more than one month. F The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. Specify if: Acute: if duration of symptoms is less than 3 months Chronic: if duration of symptoms is 3 months or more Specify if: With Delayed Onset: if onset of symptoms is at least 6 months after the stressor The psychiatric evidence 22 The appellant was examined by four psychiatrists, two of whom gave oral evidence. I shall first deal with those reports that were admitted into evidence whose authors were not called to give oral evidence. 23 Dr Selwyn Smith examined the appellant on 11 December 2002, referred by the respondent. He had available to him a number of medical reports. The appellant told Dr Smith of some of the incidents (described as "distressing experiences") narrated by the appellant. Dr Smith said that "as a method of coping with his distress he reported that he began to consume alcohol in increasing quantities. He stated that he had not consumed alcohol prior to joining the Police Service." 24 During the course of his examination, Dr Smith was not able to detect any signs or symptoms of any psychiatric disorder. He noted, however, that the appellant complained of "episodic depression and irritability. At the time of my examination his affect of expression was blunted and flat…" 25 Dr Smith diagnosed "a mixed clinical picture" demonstrating chronic alcohol dependence. He thought that there was evidence of "a number of paranoid personality traits" including distrust and suspicion of others. Dr Smith was of the opinion that the appellant demonstrated evidence "of chronic dysthymia or depression secondary to his alcohol dependence. He displays episodic depression with a loss of self confidence and at times feelings of inadequacy…" He was of the opinion that the appellant's medical conditions "were causally connected to his incapability to perform police duties." He was of the opinion that the appellant was not fit at that stage to work as an operational police officer. 26 The appellant was examined by Dr Klaas Akkerman on 5 April 2005, having been referred by the New South Wales Police Legal Services. Dr Akkerman was specifically retained to give an opinion about whether the appellant's employment with the New South Wales Police Force "was a substantial contributing factor to the onset of the psychiatric injury" which he appears to have considered was "alcohol dependence, depression and paranoid personality traits." 27 In the history taken by Dr Akkerman, the appellant referred to three significant incidents which occurred during his time with the police force being the suicide of a person in front of him who had killed eight members of his family, a train accident where a woman had lost half of her brain and a suicide where the appellant's body had been sprayed with maggots which had covered the body of the deceased. 28 The appellant told Dr Akkerman of a number of symptoms including insomnia, lack of concentration, problems with short-term memory and energy levels, that he was irritable, tearful, "gets flashbacks nightly" and "gets nightmares occasionally." 29 Dr Akkerman diagnosed the appellant as suffering from alcohol abuse with secondary depression and said that his paranoid traits were part of his depression. 30 In terms of causation, Dr Akkerman noted that "the cause of his alcohol abuse is constitutional. I do not believe that it is associated with the police force. His employment is not a substantial contributing factor to the condition." 31 Dr Peter Anderson, consultant psychiatrist, was engaged to examine and give an opinion concerning the appellant by his solicitors initially in connection with the "hurt on duty" aspect of his claim against the New South Wales Police Service. Dr Anderson had access to a number of medical reports. He examined the appellant in May 2005 and saw him for a second time on 25 November 2005. Dr Anderson's reports were admitted into evidence. 32 When Dr Anderson first saw the appellant in May 2005, he elicited symptoms of waking during the evening, being disorientated about twice a week, flashbacks to motor accident scenes and other incidents, a feeling of distrust and concerns that the Police Service had not been supportive after he had been involved in traumatic incidents. The appellant told Dr Anderson that he was "not a drinker" when he joined the Police Service but that he rapidly became a drinker as a means of dealing with the emotional trauma which he experienced at work. Drinking became a regular pattern at the end of a morning or afternoon shift "as a way of escaping from reality." 33 The appellant told Dr Anderson of some of the significant traumatic events which had occurred during his time in the Police Service, details of which I have previously set out. The appellant also gave evidence of being irritable and was described by Dr Anderson as being "episodically depressed." 34 Dr Anderson concluded that in giving his history the appellant was "anxious and agitated, although not a person likely to admit to being so." He diagnosed the appellant as suffering from alcohol dependency but did not think that this was constitutional as found by Dr Akkerman. It was the opinion of Dr Anderson that the appellant's alcohol dependency was "secondary to his own attempts to use the alcohol as a treatment, a method of handling the disturbed emotional states with which he was visited as a result of his work." Dr Anderson regarded any signs of paranoia as a symptom of "a post traumatic state". He was of the opinion that the appellant was "hypervigilant, constantly scanning his environment for trouble or threats." Dr Anderson diagnosed the appellant as suffering from depression but disagreed that this was secondary to alcohol dependency. 35 Furthermore, Dr Anderson was strongly of the view that the appellant was suffering from a chronic post traumatic stress disorder as described in the DSM-IV, to which I have previously referred. Such diagnosis applied as at the date of the appellant's discharge from the Police Service. 36 In explaining his reasoning, Dr Anderson said, in his initial report: "He has had more than his share of exposure to trauma, the threat of likely attack and death, the viewing of deceased bodies with all sorts of disfigurations, the viewing of actual shooting and suicide. He has reacted on his history in a disturbed manner to this and indeed has tried to treat himself with alcohol at the time. Subsequent symptoms which have developed in a gradual manner, difficult to specify from the non-chronological history available, but certainly now chronic, include the re-experiencing of the traumatic events in nightmares and in flashbacks and intrusive thinking. The symptoms include a state of high arousal, waking with a startle, being hyper-vigilant. The symptoms included at one time an avoidance of thoughts and feelings to do with his traumatic experiences, a wish not to talk about them, not to pursue them. Clinical picture continues to include an exacerbation of his difficult thoughts and feelings by reminders of the various traumatic scenes of accidents etc, and a wish to avoid same. His symptoms have led to highly significant levels of impairment, both directly and through his secondary use of alcohol." 37 It followed that the PTSD, alcohol dependence and depression were caused, in the opinion of Dr Anderson, by the appellant's police service. 38 When re-examined in November 2005, the appellant presented to Dr Anderson with the same general symptoms. This led to a reinforcement of the opinion previously expressed by him. 39 The final report of Dr Anderson, dated 8 April 2008, traversed the symptoms that were indicative of the diagnosis of PTSD according to the DSM system of classification of psychiatric disorders. Dr Anderson repeated his opinion by reference to those symptoms that the appellant was indeed suffering from chronic PTSD which he thought was directly related to traumatic events experienced by the appellant whilst in the New South Wales Police Service. 40 In oral evidence, Dr Anderson emphasised that a psychiatric diagnosis principally, but not exclusively, depended upon the history taken by the examining doctor from the patient. If there was a failure to direct questions about certain matters or a reluctance on the part of the patient to deal with those matters, this could lead to the examining psychiatrist not receiving sufficient information or receiving incorrect information which would in turn lead to an incorrect diagnosis. 41 For example, Dr Anderson was asked about whether any innate defence mechanisms used by the appellant might mask the effect of any traumatic event. Dr Anderson said: "I would say that he wanted to avoid thinking about trauma and wanted to avoid introspection, he wanted to get on with his job as best as possible. The very avoidance of thinking about it is a symptom of post traumatic stress disorder but it leads to difficulty in obtaining a history." Furthermore, Dr Anderson believed that the effects of alcohol, which resulted in a masking of the appellant's symptoms, resulted in the other psychiatrists retained to give evidence in the proceedings overlooking the diagnosis of PTSD. 42 It was Dr Anderson's evidence that the diagnosis of PTSD was dependent upon an identification of "a constellation of symptoms which can be seen as clustering and therefore diagnosable." This would prevent a diagnosis of PTSD necessarily being possible following any particular traumatic event which occurred in 1969 or 1977. He said: "…the injury is seen as the effect on the brain of what had gone before…" 43 During the course of his evidence, I asked Dr Anderson a series of questions about the mechanism that applied so as to produce the aggregation of symptoms which, in a cluster, allow the diagnosis to be made. The following evidence was given: "Q. Would I be wrong, in medical terms, in assuming though that each of these events, these psychologically traumatic events is in some way a trigger for what occurs? I mean, it has to by way of the definition I assume? A. Yes, yes that is true.

Q. And then you, as you put it, there is some impact on the brain or the way in which the patient is functioning brain wise? A. Hm.

Q. Which ultimately produces the symptoms, is that basically how it works in layman's language? A. Yes, yes." 44 In cross-examination, Dr Anderson was asked to look at an Application for Medical Discharge form completed by the appellant on 23 June 1997 in which he applied to the State Authority Superannuation Board for certification that he was incapable, in general terms, of discharging the duties of his office as a police officer. 45 The form asked for a list of the medical conditions upon which the application for medical discharge was based. Whilst there is mention of "alcohol" and "depression" as non-physical conditions, there is no mention of PTSD. This is not surprising because, on the evidence, the first medical practitioner to have diagnosed that condition as applying to the appellant was Dr Anderson who had not seen the appellant until December 2005. 46 The form then asked the appellant to set out below "the reasons I believe prevent me from performing the duties of my office." A notation asked the appellant to indicate in his own words why he could not continue to work as a police officer. There is a reference in the response of the appellant to diverticulitis and its symptoms, ulcers, alcoholism, depression, and the like. In cross-examination, Dr Anderson was shown this form and was asked to note that it made no reference to re-experiencing of symptoms or hypervigilance, as if an omission by the appellant to mention these matters in some way was indicative that he was not suffering from them and therefore could not be diagnosed as having PTSD. 47 This cross-examination, in my opinion, would assume a level of insight on the part of the appellant as to his feelings, emotions and conduct which contains an air of unreality. In my opinion, it would be inappropriate to expect a non-medical practitioner firstly to have the appropriate insight and understanding of his conduct to recognise that that conduct may be relevant to some medical condition which might be characterised as an "infirmity of the mind" and, secondly, to appreciate its significance in terms of what was required of him in completing the form. In any event I do not perceive Dr Anderson to have wavered in any way from his diagnosis. 48 I shall return to the evidence of Dr Anderson when dealing with that of Dr Michael McGrath, a consultant psychiatrist who was asked to examine the appellant by the respondent for the purpose of assessing his condition and fitness for employment in the New South Wales Police Service and who examined him on 14 March 2002. Dr McGrath was also given a number of medical reports. 49 During the course of examining the appellant on 14 March 2002, Dr McGrath ascertained that the appellant had been under his care at the St John of God Hospital when admitted for his alcohol abuse on 13 June 1994. Despite giving evidence that many police were referred to Dr McGrath whilst he was director of the drug and alcohol unit at the St John of God Hospital, he said in oral evidence that he recalled the appellant. I shall return to this evidence later in these reasons for judgment. 50 In a report on 2 April 2002, Dr McGrath reviewed the medical reports which had been made available to him and reviewed briefly the history given to him by the appellant concerning his service in the police force and his experiences. He diagnosed "a significant alcohol dependency problem which appears to be ongoing and was certainly well developed when I first saw 'the appellant' in 1994…Some of his symptoms such as poorly restrained aggression, paranoia and, indeed, depression have lifted somewhat. I think this is due to his retirement from the Police Service." At that stage, it will be remembered that Dr McGrath had only been asked to comment on the appellant's condition and fitness for employment. He was of the opinion that the appellant was unfit to work as a police officer and incapable of any alternative work. 51 In a further report of 10 July 2002, provided in response to a further communication from the respondent, Dr McGrath said: "I think his symptoms of depression, anxiety disorder and paranoid personality disorder are probably all interrelated with his alcohol dependency." 52 In February 2008, the respondent asked Dr McGrath to provide a further opinion. In particular he was asked to consider whether the appellant suffered from classical post traumatic stress disorder. In general terms, Dr McGrath responded: "I think probably most police in a lifetime career would be exposed to sufficient trauma to induce post traumatic stress disorder of some degree but according to DSM-IV which was in use when I saw him, I did not think he fulfilled the full criteria." 53 In elaboration, Dr McGrath said that any suggestion that the appellant suffered from hypervigilance was an exaggeration although he allowed for the fact that "some of the signs of possible PTSD could have been obscured by alcohol withdrawal and subsequently by his rather inhibited personality with obsessive features and symptoms of depression." Although Dr McGrath allowed for the fact that the appellant may have suffered from PTSD on 30 June 1994 or later, he said that it was not clinically evident "then or subsequently." 54 He therefore disagreed with the opinion expressed by Dr Anderson. 55 It was the evidence of Dr Anderson that Dr McGrath had failed to diagnose PTSD because he had not sought information from the appellant that would be indicative of the existence of the necessary cluster of symptoms whose presence determined the diagnosis. In oral evidence, Dr McGrath was asked whether either he or his registrar, who he said had had primary care of the appellant, had picked up any elements of the symptoms. Dr McGrath responded as follows: "A. No and I think we were aware we were looking for it. We were not trying to impose the diagnosis where the symptoms were not convincing. There were a significant number of patients who did prove to have PTSD, whether it was related to an incident such as Mr Hazelwood described earlier in his police career with the multiple murder suicide.

Q. Nevertheless, you did not pick up any of those symptoms in 1994? A. No. It may seem surprising. He was a rather dour, introspective sort of person who did not give too much away." 56 In discussing the manner in which the appellant may have reacted to some of the traumatic events which he had described, Dr McGrath gave this evidence: "Q. Is it possible for that event to have occurred and no injury to have been suffered by Mr Hazlewood? A. Well, you would have to be of a very particular type of personality, I suppose. He had perhaps a different personality style from many of his fellow police officers who might have reacted differently in those circumstances. He was a rather solitary fellow; in fact he needed to have a drink to talk to his mates, I think, he couldn't do it.

Q. We might be at cross purposes. I am trying to clarify what his Honour is trying to clarify in terms of when the injury occurs. Is it possible for Mr Hazlewood to experience that event and not have suffered an injury in theory? A. In theory I think there are many instanced from war time experience that demonstrate this.

Q. In that theoretical sense a traumatic incident not an injury; is that right? A. Well, I don't know that we have the skills as yet to determine that absolutely. Some people even suggest there might be changes in the brain after a period, but I can't confirm that.

Q. Is it only after the changes in the brain have become manifest that one is able to actually answer that question? A. Yes. There would often be a period a latent period, I suppose, experienced--

HIS HONOUR: Pardon me interrupting, it has to be helpful to me at the end of the day; my understanding perhaps from reading material of Dr Rivers after world war 1 is it difficult to paint a black and white picture and to segment particular periods in which there may or may not have been some resultant impact of a traumatic event on a person; in other words, it is a sort of dark morass and these things emerge at some later stage, or often emerge at some later stage, sometimes triggered by other events, sometimes not? A. Sometimes triggered by relatively trivial events. I see this in many officers and a minor incident brings it all back. I'm trying to think of the term a marching of events and I think Mr Hazlewood had other events subsequent to that particular trauma that may have contributed without being able to go through too much detail I'm sure it brought other events into--

Q. Doctor, so far as the traumatic events in Mr Hazelwood's police career are concerned, they certainly were injurious, in your view, to giving rise to alcohol and depression? A. Yes.

Q. So far the question of PTSD is concerned, they were not injurious in your opinion; is that right? A. Well, as I said, he did not have the constellation of symptoms you would expect to attach that label to that particular patient.

Q. The example you gave his Honour before about sometimes trivial events can be a trigger for a traumatic experience that happened in the past, is that a question of delayed onset or not? A. That might explain it, yes. I'm not quite sure whether the trigger itself is an injury or part of the injury, or whether the trigger is simply an accumulation of traumatic events, but the major one seems to be the one I discussed, which you focused on. 57 In the course of cross-examination, Dr McGrath was asked a series of questions about symptoms of which the appellant complained, which in the opinion of Dr Anderson led to the conclusion that the appellant was suffering from PTSD. Dr McGrath gave this evidence: "Q. You did not look for those classic symptoms, did you, in that three week period? A. If I was writing a paper on the subject I might have looked for cases. That was not my purpose. But as I did with other patients, if the symptoms had been if the classic symptoms had been there, he would have been treated for that condition as well.

Q. I am not criticising you; you did not personally look for those symptoms in Mr Hazlewood when treating him? A. No, I looked at him in an overall sense, both mentally and physically.

Q. Is it the case the police force, as it was then, sent him to St John of God Hospital to only address this alcohol abuse? A. That was the primary purpose, yes; that was the point of entry." 58 Later, I asked Dr McGrath to comment on the difficulty of identifying symptoms in a patient who, as Dr McGrath conceded, was closed and not particularly communicative about his symptoms. "Q. In dealing with a patient who is closed and not forthcoming, does not open up about his or her symptoms, does that make it difficult to diagnose PTSD in accordance with the model and classic definition? Am I putting that fairly? Are you able to comment on that as a proposition? A. Well, it places me in a very difficult position if I have to assume every possibility which does not come to my notice because of the patient's personality style. If he has post traumatic stress disorder I have misdiagnosed it. During the intervening period there could have been exclusive evidence and I had not seen it that he had PTSD or he subsequently developed post traumatic stress disorder and I have read a number of reports during that time." 59 Dr McGrath was asked a number of questions about whether in fact the appellant was suffering from some of the symptoms whose presence were necessary in order to establish the diagnosis of PTSD. He said that in the case of hypervigilance this could be observed in the patient by the examiner. However, Dr McGrath conceded that the re-experiencing of trauma, disturbed sleep and the like could only be determined by complaint made by the appellant. Dr McGrath also conceded that the appellant was less likely to make a complaint because of his closed personality. Furthermore, he agreed that certainly in about 1994 it would have been foolish for a police officer wanting to remain in the force to complain about not being able to handle police work because of the then prevailing police culture. 60 Ultimately it becomes necessary to determine whether to accept the diagnosis of Dr Anderson or the rebuttal of that diagnosis by Dr McGrath. No other psychiatrist has been asked specifically to comment on whether or not the appellant suffered PTSD at the time of his discharge from the police service. 61 Neither Dr McGrath nor Dr Anderson was a treating specialist at the relevant time of retirement, namely 1998. Dr Anderson has based his opinion on observations made by other doctors who have examined the appellant, in the main relating information given to them by the appellant post-1998 as to what occurred prior to that date. Dr Anderson has also based his opinion on what the appellant has told him. It was Dr Anderson's position that he asked questions and sought information about matters that would or could be indicative of the presence of the cluster of symptoms necessary to diagnose PTSD. Some of those symptoms were observed by other medical practitioners, but none had observed the totality of the symptoms necessary to allow the diagnosis to be given. Dr Anderson responded to this by observing that no other medical practitioner appears to have considered whether PTSD was a probable or possible diagnosis. 62 Although Dr McGrath appears, in my opinion, faintly to have suggested that he considered such a diagnosis, I am not persuaded on the basis of the evidence that he did so. There is no suggestion in his reports or in his oral evidence that, prior to cross-examination whilst giving evidence in these proceedings on 3 September 2008, he had directed his examination in any way to either rejecting or accepting the presence of the necessary symptoms to allow the diagnosis to be made. 63 Indeed, Dr McGrath was of the opinion that that disorder "is a rather fashionable diagnosis and sometimes it is over-diagnosed…by some psychologists…" 64 I do not understand Dr Anderson to have been retained in any circumstances that would indicate that he was particularly asked to look for that particular diagnosis. Indeed, it appears from his report of 9 May 2005 that Dr Anderson was retained to give an opinion about whether or not any condition from which the appellant was suffering could be characterised as having been incurred whilst "hurt on duty." It was in that context that Dr Anderson commenced his examination and concluded that a diagnosis of PTSD was appropriate. A finding that the appellant suffered PTSD 65 My understanding of the totality of the medical evidence to which I have referred including oral evidence of Drs McGrath and Anderson leads me to conclude that it is more appropriate in all the circumstances to accept the opinion of Dr Anderson over that of Dr McGrath. This is because I am persuaded that Dr Anderson directed his mind independently to ascertaining whether a diagnosis of PTSD was appropriate and sought the relevant information to determine whether or not such a diagnosis could be made. To be fair to Dr McGrath, it was not until February 2008 that he appears to have been directed for the first time to consider whether the appellant suffered from that disorder. The circumstances in which Dr McGrath first treated the appellant in 1994 and subsequently examined him in 2002 would not have caused Dr McGrath to look specifically for any such diagnosis. At that stage, it had been accepted that the appellant was suffering from symptoms of depression, anxiety disorder and paranoid personality disorder and all that Dr McGrath was asked to do was to consider whether the appellant was incapacitated for all forms of work as a result. In these circumstances it is, in my opinion, safer and, as I have said, more appropriate to accept the opinion of Dr Anderson. 66 It is interesting to note that Dr McGrath in his report of 10 July 2002 said that the symptoms of depression, anxiety disorder and paranoid personality disorder "are probably all interrelated with his alcohol dependency." The prevailing medical evidence is to the effect that the appellant was driven to drink in order to deal with the effects of the traumatic events to which he was exposed as a police officer (and about which there can be no doubt) in the absence of any empathy or support mechanisms which would assist him in dealing with the impact of those traumatic events. I acknowledge that the police force did refer the appellant for treatment of his alcoholism, but that may have been too little too late. It is hard to see in the circumstances how it can be denied that the appellant's problems, no matter what diagnosis is given to them by way of a label, are causally associated with the work that he performed in the New South Wales Police Force. 67 As Drs McGrath and Anderson readily conceded, a diagnosis of psychiatric conditions is something that cannot be ascertained by use of diagnostic procedures available to other medical practitioners. It is a question of obtaining and dealing with such information as is available and formulating an opinion, probably in an impressionistic manner, based on the nature of and characteristics of the complaints as they may be recognised in terms of symptomatology. This is a process that is not the subject of any precise scientific formulation, and the matter needs to be approached, in my opinion, accordingly. 68 In the result, I accept the opinion of Dr Anderson that, at the time of his discharge from the police service, the appellant was suffering from PTSD. I also accept the opinion of Dr Anderson as to the causal relationship of that condition with the appellant's service in the New South Wales Police Force. 69 Of course, in coming to this conclusion I readily acknowledge that no medical practitioner, including Dr Anderson, has been able to state categorically that any one or more of the incidents described by the appellant was the one trigger or constituted one of several triggers or was the final trigger for the manifestation of the constellation of symptoms which constituted the disorder. I have proceeded, however, on the basis that it is only sufficient to deal with them in the aggregate, based on the evidence of Dr Anderson. 70 I should make some comment about my understanding of the appellant's alcoholism and excessive alcohol abuse based upon the medical evidence. The preponderance of the medical evidence is to the effect that the appellant, consistent with the then prevailing culture in the police force, resorted to drinking alcohol as a means of assisting in dealing with the traumatic events which occurred during his police work and of ameliorating the effects of those traumatic events. All of the medical practitioners seemed to agree with this explanation. All of them, save for Dr Akkerman, accept that there was a nexus between the appellant's alcoholism and his police work. Dr Akkerman was of the opinion that the appellant's alcoholism was "constitutional" which I assume refers to some predisposition to dependence on alcohol, but ignores that which, on the evidence, led the appellant to drink. Relevantly, for the purpose of these proceedings, I do not regard the appellant's alcoholism and his long history of alcohol abuse as detracting in any way from the conclusions to which I have come concerning the diagnosis of PTSD and the causal factors which I have previously identified.

71 It is necessary to consider whether or not PTSD is an infirmity of the mind. 72 In Ford, Roger v the State Authority Superannuation Board [1994] NSWIRComm 217, I noted that the words "infirmity of mind or body" appeared in the 1850 Colonial Police Act. They appear to have continued to be used by the legislature to the present day, presumably without concern as to their meaning in modern times. After reviewing such decided cases as may have assisted in understanding what might be characterised as an "infirmity of mind" and dictionary definitions, I concluded that: "In the context of a reference to the mind, infirmity connotes an abnormality in the sense that it can be said that judged by community standards there is some abnormality of behaviour as a result of the function of the mind. This is not necessarily equivalent to a recognised psychiatric state but is more than a mere idiosyncrasy or unusual conduct. There must also be an enduring element." 73 In considering whether PTSD is an infirmity of the mind, it is necessary to understand what it is that is represented by the diagnosis. 74 As I have previously indicated, the indicia for the diagnosis of PTSD are established in a conventional sense in accordance with criteria contained within the fourth edition of Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association, Washington DC, this edition having been produced in 1994. This work consists of a classification of mental disorders to assist medical practitioners and others for use "in clinical, educational and research settings." (See the manual at xxiii) 75 In seeking to discuss what is a mental disorder and its classification, the Manual contains this caveat: "Moreover, although this manual provides a classification of mental disorders, it must be admitted that no definition adequately specifies precise boundaries for the concept of 'mental disorder.' The concept of mental disorder, like many other concepts in medicine and science, lacks a consistent operational definition that covers all situations. All medical conditions are defined on various levels of abstraction - for example, structural pathology (eg, ulcerative colitis), symptom presentation (eg, migraine), deviance from a physiological norm (eg, hypertension), and etiology (eg, pneumococcal pneumonia). Mental disorders have also been defined by a variety of concepts (eg, distress, dyscontrol, disadvantage, disability, inflexibility, irrationality, syndromal pattern, etiology, and statistical deviation). Each is a useful indicator for a mental disorder, but none is equivalent to the concept, and different situations call for different definitions." (At xxi). 76 Furthermore, the manual recognises that which is obvious, namely that there are no scientific means of characterising with exactitude each and every category of mental disorder. For example, at xxii the following is said: "In DSM-IV, there is no assumption that each category of mental disorder is a completely discrete entity with absolute boundaries dividing it from other mental disorders or from no mental disorder. There is also no assumption that all individuals described as having the same mental disorder are alike in all important ways. The clinician using DSM-IV should therefore consider that individuals sharing a diagnosis are likely to be heterogeneous even in regard to the defining features of the diagnosis and that boundary cases will be difficult to diagnose in any but a probabilistic fashion. This outlook allows greater flexibility in the use of the system, encourages more specific attention to boundary cases, and emphasizes the need to capture additional clinical information that goes beyond diagnosis. In recognition of the heterogeneity of clinical presentations, DSM-IV often includes polythetic criteria sets, in which the individual need only present with a subset of items from a longer list (eg, the diagnosis of Borderline Personality Disorder requires only five out of nine items)." (At xxii). 77 Having regard to the evidence of Dr Anderson, which I have previously stated I accept, I find that the appellant suffered from the infirmity of post traumatic stress disorder at the time of his discharge from the police force. In doing so I have had regard to medical advice, being the advice of Dr Peter Anderson. (I shall assume for the purpose of these proceedings that the definition of medical advice contained within s 10B(2C) of the Police Regulation (Superannuation) Act 1906 should refer to a medical practitioner nominated by me as part of the review process, neither party having argued to the contrary.) What is the "injury"? 78 For the purpose of s 10B(2)(a) of the Act, it is necessary to consider whether or not the appellant notified the Commissioner of Police before his retirement that he had suffered an injury which caused him to suffer from PTSD and that such notification occurred within six months of that injury. 79 It is first necessary to consider what is the injury that caused the appellant's infirmity of mind, namely PTSD. 80 It will be remembered that the medical evidence is to the effect that a diagnosis of PTSD can only be made upon recognition that the appellant suffered from the constellation of symptoms which are necessary to be found in order to make the diagnosis. 81 It was submitted on behalf of the respondent that the injury that caused the PTSD was in fact the emergence or manifestation of the constellation of symptoms. If this is correct, it would have required the appellant to notify the Commissioner of Police within six months of those symptoms manifesting themselves, presumably when all of them were present. This would, in itself, have required a remarkable power of insight on the part of the appellant, including the necessary ability to self-diagnose as suffering from the disorder. 82 Apart from this pragmatic problem, it seems to me that the submission made by the respondent is not consistent with the intent of the sub-section, which requires identification of some precipitating event or circumstance that in turn brought about the injury. 83 Of course, the application of s 10B(2)(a) is much easier to understand where there has been an injury to the body. Such injuries may be either external or internal. An example of an external injury is an abrasion, a cut to the skin or even the penetration of the skin by an anthrax virus. (See the discussion of what is an injury simpliciter in the judgment of Mason J (as his Honour then was) in the High Court of Australia in Favelle Mort Ltd v Murray (1975-1976) 133 CLR 580 at 595 and following.) An injury may also be sustained internally within the body. This will include the internal tearing of muscle or tissue, a ruptured gullet or a collapsed vertebra. 84 By analogy, s 10B(2)(a), when requiring the identification of an "injury" that has caused an infirmity of mind, contemplates an enquiry about some impact upon the mind or body which has caused, in the sense of brought about, the infirmity of the mind. 85 In making this observation, I am conscious that questions of causation have exercised judicial minds on many occasions. This is especially so when considering whether causation needs to be direct or indirect and in considering circumstances where there may be multiple causes of something. However, as I understand the medical evidence in these proceedings, it is not necessary that I embark upon any detailed consideration of these matters; certainly, there were no submissions that would lead me to do so. 86 Indeed, the description of PTSD contained within the manual is, in my opinion, sufficient to point to what is necessary by way of causation and assists in identifying what is an "injury" for the purpose of s 10B(2)(a). The opening words of the manual, in describing the "diagnostic features" of PTSD are to the following effect: "The essential feature of Posttraumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity; or witnessing an event that involves death, injury or a threat to the physical integrity of another person…" (At 424). These words at face value require merely a temporal nexus between the development of the characteristic symptoms and the exposure to the stressor. However, the remainder of the description of the diagnostic features makes it clear that the manner of the response must result from the exposure to the extreme trauma and that the characteristic symptoms must in turn result from that exposure. Accordingly, the process by which the condition manifests itself involves both a temporal and causal nexus between the traumatic stressor and the manifestation of the symptoms. As I have previously observed, it is the manifestation of the symptoms that constitutes the presence of the disorder. It does not seem to me appropriate in these circumstances to characterise the manifestation of the symptoms as constituting the injury, as submitted by the respondent. It seems to me to be more consistent with the policy of the sub-section that the traumatic stressor events be regarded as the injuries that caused the infirmity of mind, namely the PTSD. Notification of injury 87 This would therefore require the appellant to have notified the Commissioner of Police before his retirement and within six months of each of the traumatic stressors which he described. 88 There can be no doubt that the appellant informed the Commissioner of Police of each of these events by reason of the preparation of relevant reports and the like. It is incomprehensible that the appellant would not have been required to produce documents recording his involvement in the three deaths which have been described and in the other serious matters which he related to the various medical practitioners in the course of giving his history to them. Indeed, so much was conceded by the respondent for the purpose of these proceedings. The information would have been contained within occurrence pad records and other documents which the appellant was required to submit. I am satisfied, therefore, that within six months of each of these events the appellant notified the Commissioner of Police of them and that this occurred before his retirement. 89 However, it is necessary to consider whether this is sufficient compliance with s 10B(2). Sub-paragraph (a) requires notification of the injury to be made. I have already concluded that this has occurred for the reasons that I have earlier set out. However, the form in which s 10B(2)(a) appears has only been in effect since 23 November 1984. Prior to that date, s 10B(2)(a) required the notification of "the nature of that injury." The Oxford English Dictionary defines the nature of something, relevantly, as being: "The inherent or essential quality or constitution of a thing; the inherent and inseparable combination of properties giving any object, event, quality, emotion, etc its fundamental character. In later use also more generally: kind, type." Applying this meaning to the expression "nature of that injury" would seem to me to require that there be notification of the essential quality or properties of the injury which, in turn, has caused the appellant's PTSD. This would require some notification of the impact that the stressor had on the appellant's psyche. That is, a required notification of the nature of an injury as opposed to the injury simpliciter contains an additional element that would involve a description of the impact that the stressor had on the appellant. 90 Whilst I am able to conclude, for reasons which I have earlier given, that the relevant incidents and events were brought to the attention of the Commissioner by the appellant, there is no evidence that the appellant drew the Commissioner's attention to the impact that they had on him at any time prior to 1984. 91 This creates something of a difficulty in that Dr Anderson has not identified any particular event or events as having caused or contributed to the development of the PTSD condition. As the factual narration, which I have previously set out, makes clear, the appellant encountered a number of stressful situations both prior to and after 1984. 92 This matter is further complicated by a consideration of the provisions of sub-paragraph (b). It was common ground that a form was prescribed for the purpose of s 10B under the Police Superannuation Regulation 1984. That Regulation took effect from 23 November 1984 but did not have any effect prior to that date. By clause 6 of that Regulation, it was provided that a notification of injury under s 10B(2)(a) of the Act "shall be in or to the effect of" a form contained in Schedule 3. 93 The Schedule 3 form commences with the following: "Form to be used for notification of injury. Report of injury received whilst on duty, whilst travelling to or from duty, or whilst participating in organised police sport."

After requiring details of the police officer, the form asks for "details of incident which resulted in injuries being received" and then the "nature of injuries", specifying that "wherever possible full medical description of injury should be set out." The form then seeks details of the name of the doctor consulted, witnesses, to whom the incident was reported and a form of verification that the incident occurred. 94 The remainder of the form is repetitive but it is possible that it might be required to be signed by a supervising officer. Finally, there is provision for notification by the Police Medical Officer. 95 The only evidence available is to the effect that such information concerning each of the incidents or events upon which the appellant relies was given to the Commissioner of Police in some form consistent with the reporting of these incidents as part of the protocols or processes established by the New South Wales Police Force for the notification and recording of them in connection with the management and operation of the Force itself. I am unable to conclude that any such notification could be in the form of any prescribed form or to the effect of such a prescribed form as I have described it. Once again, however, the prescribed form only applied from 23 November 1984 and as was conceded by the respondent was not operative prior to that date and had no retrospective operation. 96 I conclude that there has been compliance with the provisions of s 10B(2) for part of the relevant period during which the events and incidents upon which the appellant relies occurred but for part of that period only. Furthermore, it is, in my opinion, impossible to ascertain whether and to what extent Dr Anderson's diagnosis of PTSD depends on incidents and events which occurred during the period of compliance and which occurred during the period of non-compliance. 97 This then leads to a consideration of whether, in these circumstances, the appellant's claim should be dismissed or allowed. "Compromise"

98 Before considering this matter, I observe that the Police Superannuation Fund is established under the Police Regulation (Superannuation) Act by s 3(1) and is expressed to be "under the control of STC." By s 1, STC is defined as being the SAS Trustee Corporation whose existence is said to be "continued under the Superannuation Administration Act 1996." 99 By s 3(3) of that Act, STC is required to pay out of the Fund the benefits provided by the Act and, relevantly, "any other money properly payable from the Fund." 100 It may be assumed that the enquiry upon which the Court is currently engaged goes ultimately to whether or not the appellant is entitled to payment of a superannuation allowance from the Police Superannuation Fund. 101 The powers and functions of STC, also known as SAS Trustee Corporation, are to be found in provisions of the Superannuation Administration Act 1996. By s 49 of that Act, STC is declared to be a trustee of the superannuation schemes administered by it and is such a trustee for the purpose of the Trustee Act 1925. 102 S 51 of the Superannuation Administration Act makes specific provision for the duties of STC in connection with the administration of the various superannuation schemes which are entrusted to it. S 51 is in the following terms. 51 Duties relating to functions

(1) STC must: (a) act honestly in all matters relating to its functions relating to the STC schemes, and (b) exercise, in relation to all matters affecting the STC schemes, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide, and (c) ensure that its functions relating to the STC schemes are exercised in the best interests of persons entitled to receive benefits under the STC schemes, and (d) not enter into any contract or arrangement, or do anything else, that would prevent STC from, or hinder STC in, properly exercising STC's functions as a trustee. Note. The duties contained in subsection (1) reflect the covenants required of superannuation scheme trustees under the Superannuation Industry (Supervision) Act 1993 of the Commonwealth. (2) In exercising its functions, STC must have regard to: (a) the interests of persons entitled to receive benefits under the STC schemes, and (b) the Heads of Government Agreement, commencing 1 July 1996, relating to the exemption of certain State public sector superannuation schemes from the Superannuation Industry (Supervision) Act 1993 of the Commonwealth, and (c) the future liabilities of the STC funds, and (d) any statement in writing of the policy of the Government on any matter that is relevant to the functions of STC given by the Minister to STC. (3) Subsection (1) (d) does not prevent STC from entering into a contract or an arrangement under section 53. 103 Relevantly also I set out the provisions of s 66 of that Act 66 STC may compromise or settle claims

(1) STC may compromise or otherwise settle any claim made against it. (2) If STC compromises or otherwise settles a claim in relation to a benefit, the compromise or settlement discharges STC's obligations as regards the benefit, and the amount payable is to be regarded as a benefit under the STC scheme concerned and is payable from the appropriate STC fund accordingly. (3) To the extent that an amount payable by STC following a compromise or settlement is not a benefit under the relevant STC scheme, the amount is payable from whichever fund or funds that STC considers appropriate. (4) STC may make such inquiries and investigations with respect to a claim made against it as it thinks fit. 104 During the course of submissions, I raised with the parties whether, standing in the shoes of STC, as I am required to do for the purpose of these appeal proceedings, it was appropriate that I consider whether I was properly entitled to utilise the power of compromise given by s 66 of the Superannuation Administration Act in order to determine that the appellant would be entitled to benefits notwithstanding the failure to comply with the provisions of s 10B(2) for some part of the period during which the incidents and events relevant to the ultimate causation of PTSD occurred. 105 It was submitted by Mr Ower counsel for the respondent that if I endeavoured to compromise the appellant's claim by relying on s 66, I would in fact be applying a regime that was beyond that which was contemplated by the Police Regulation (Superannuation) Act by which the relevant Fund was established. There are a number of reasons why I respectfully disagree with this submission. Firstly, it seems that the benefit, which is created by the Act to be paid out of the Fund, is an annual superannuation allowance payable in the circumstances provided for by that Act. The provisions of s 10B(2) are intended, so it seems to me, to create a barrier to the entitlement to receipt of an annual superannuation allowance where the employer, namely the Commissioner of Police, has not been notified of the injury that has caused the infirmity which in turn creates entitlement to payment of the allowance. The requirement that the Commissioner be notified of the receipt of the injury is obviously a practical one. It is no doubt designed to ensure that members of the Fund are unable to make claims on spurious grounds or to make claims at a time at which, and in circumstances in which, the Commissioner of Police is disadvantaged in being able to verify that the injuries have been received and that circumstances exist which will enable proper enquiries to be made. 106 Accordingly, the requirement of notification contained within s 10B(2) creates a safeguard to ensure that entitlement properly arises and that notification is made within an appropriate timeframe. 107 I disagree, therefore, that if I were to consider allowing the appellant to make a claim, notwithstanding that there was not full and strict compliance with the provisions of s 10B(2), that I would in some way be expanding the circumstances in which entitlement to a superannuation allowance arose. On the contrary, I conclude that I would merely be permitting the appellant to make a claim for an allowance to which he would otherwise be entitled except for a failure to comply fully and strictly with the provisions of s 10B(2). 108 I come to consider, then, whether it is appropriate to apply the provisions of s 66 to the circumstances of these proceedings. I proceed on the basis that there can be no doubt that the Commissioner of Police was aware of the incidents and events relied upon by the appellant as having caused PTSD. This obviates any concern that in some way the appellant may have concocted events or occurrences so as to justify his claim. There can be no doubt, on the basis of the evidence given in the proceedings and on the basis of the views expressed by the parties and in particular the respondent, that these events and occurrences occurred. There can also be no doubt that the Commissioner of Police and the STC have had an adequate opportunity of exploring the causal nexus between these occurrences and events and PTSD. 109 There is one further matter that is of significance and that is the fact that the appellant was not diagnosed as having suffered PTSD until after he had retired from the police force. I raised this for the consideration of the parties during submissions. Counsel for the respondent said that it was the intention of the legislature that in these circumstances, the police officer would not be entitled to receive a superannuation allowance. I cited, by way of example, the development of other medical conditions of an incremental nature such as asbestosis. Counsel volunteered a reference to degenerative hearing loss, which emerged over a period of time after sustained exposure to undue noise levels. If I take, by way of example, asbestosis and a hypothetical police officer who worked for many years in a police station where he or she was exposed to levels of asbestos dust, and who retired before being diagnosed with asbestosis or some similar condition, it would be the position of STC that such a police officer would not be entitled to a superannuation allowance because he or she had failed to notify the Commissioner of the receipt of each and every injury which had caused the asbestosis. Presumably, the penetration by each and every fibre of asbestos would constitute an injury, but the aggregation would presumably be necessary to produce symptoms of asbestosis and possibly would need to occur before a diagnosis of asbestosis could properly be made. This would seem to be a situation that, on the approach advocated by the respondent, would create an unfair result inconsistent with the philosophy of the scheme. 110 Some further insight may be gained into the nature of the problem by considering the circumstances in which a superannuation allowance is payable under the Police Regulation (Superannuation) Act. S 7 makes provision for the payment of an annual superannuation allowance for a member of the police force who has served 20 years or more of equivalent full-time service and retires on or after attaining the age of 60 years or, being under that age, is discharged after being certified under s 8(1) to be incapable, from infirmity of body or mind, of personally exercising the functions of a police officer. The amount payable is a percentage of the member's "attributed salary of office" at the date of retirement or discharge. There is provision for the payment of such an allowance in s 7AA to a police officer retiring after age 55 and before age 60. Neither of these sections applies to "hurt on duty" allowances where a different regime is in effect. 111 In these circumstances, it will be seen that the provisions of s 10B(2) are designed to limit the payment of benefits to circumstances where the Commissioner of Police has been notified prior to resignation or retirement of the injury which caused the relevant infirmity of body or mind and within 6 months of receipt of that injury. As I have previously indicated, this would appear to be designed to preclude deception in the making of claims and would also be designed to ensure that the Commissioner of Police had an opportunity of fully investigating the factual basis for any claims that might be made. 112 As I have now stated on a number of occasions, there can be no question that the factual events and occurrences upon which the appellant relies as equating with injuries suffered by him occurred. True it is that the Commissioner has no opportunity of considering the impact which each of them had on the appellant. However, on the other hand, the appellant was not conscious of there being any impact and the medical evidence is to the effect that they had, in the aggregate, a cumulative effect on his psyche. It is possible that only a process such as psychoanalysis would have revealed to the appellant that which was happening to him as he encountered each of the events and occurrences as they unfolded during the course of his career in the police force. Furthermore, his awareness would have been diminished by the fact that it was not until some time after his retirement that any diagnosis of PTSD was made. 113 STC is required to act as a fiduciary in determining whether or not to afford benefits to the appellant whether by way of compromise or not. In doing so, the fiduciary is obliged to consider the circumstances in which benefits should properly be paid to the member and the state of the Fund. Given all the circumstances pertaining to the appellant, I am of the opinion that to allow the appellant's claim would be consistent with the exercise of this fiduciary obligation. 114 Consistent with the fiduciary duties and obligations which repose in STC and which I am required to exercise in determining these proceedings, I am of the opinion that it is appropriate to utilise the power of compromise which is contained within s 66 of the Superannuation Administration Act. I do so for the following reasons: 1. The provisions of s 10B require, on analysis, the identification of an injury that causes an infirmity of mind. These are concepts that do not sit easily with an "infirmity of mind", which expression is itself shrouded in uncertainty. No doubt certain psychiatric conditions are well recognised within the community such as depression and bipolar disorder. However, medical science has not as yet reached a stage where anyone can say with confidence that in all cases such conditions have been caused by an "injury", whatever that word is intended to convey in the context of an infirmity of the mind. Whilst it might be said that some cases of depression have been initiated by exposure to certain experiences or conditions, there are other cases where depression arises seemingly spontaneously without any particular incident or experience having occurred. Such depression is known as endogenous depression. In the same way, if it could be said that alcoholism or drug addiction constitute an infirmity of the mind, there must also be cases where it is impossible to identify an "injury" as having caused those particular conditions. 2. This difficulty in identifying what is an "injury" in a conceptual sense applies also to the circumstances of the appellant and the PTSD from which he suffers. I have already discussed the necessity for the particular event or occurrence to act as a stressor. However, as I have observed, it is difficult, if not impossible, to identify any one particular incident as necessarily being or constituting the cause of the PTSD from which the appellant suffers. The truth is that the aggregation of these events and occurrences over a period of time has caused, in the sense of brought about, the PTSD suffered by the appellant. 3. I have concluded that the Commissioner of Police must have been notified of each of the events or occurrences but it would have been impossible for the appellant to have had sufficient, or any, insight to enable him to notify the Commissioner that there was either an actual or potential impact on his psyche which would have contributed to the cumulative effect of producing, over a period of time, his PTSD. 4. In the circumstances, the requirement imposed by s 10B(2) is essentially an inappropriate one by reference to the appellant's condition. 5. Furthermore, the position is complicated because, as I have described, there are different regimes applying because of amendments to the Police Regulation (Superannuation) Act and amendments made to the Regulations. These amendments have arisen during the period when the appellant was employed by the New South Wales Police Force and encountered the events and occurrences that ultimately caused the PTSD. 6. The result is that although the appellant qualifies in my opinion for the grant of a superannuation allowance having regard to the provisions of s 10B(1), he is technically unable to comply throughout the whole of the period with the provisions of sub-s (2), although he has complied with respect to some of the events and occurrences which have occurred during this period depending upon the particular regime that has operated from time to time by reason of the amendments to the Act and the Regulations. 7. Notwithstanding this technical non-compliance, there can be no doubt that the Commissioner of Police was aware of all of the events and occurrences encountered by the appellant during the totality of the period of his employment. 115 For these reasons, it is appropriate that such discretion as is created by s 66 of the Superannuation Administration Act should be exercised in favour of the appellant. To decline to do so would, in my opinion, result in the appellant being disentitled to a superannuation allowance in circumstances that would be unfair and unjust. The conclusion that I have reached is, in my opinion, consistent with the philosophy and intent of the entitlement to benefits created by the Police Regulation (Superannuation) Act and the fiduciary environment in which benefits are determined. Conclusion 116 On the basis of the opinion of Dr Anderson I am satisfied that the appellant was incapable from the infirmity of mind constituted by PTSD of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act 1990 at the date of his discharge from the police force. 117 In certifying the appellant to be incapable from the infirmity of mind of PTSD of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act 1990, I have relied upon the medical advice provided by Dr Anderson. In so nominating Dr Anderson, I am mindful of the requirement to have regard to medical advice contained within s 10B(1) and (2) and to the definition of medical advice contained within s 10B(2C). 118 Accordingly, the appellant succeeds in the appeal. Costs are reserved with liberty to apply.

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.