Larson v Commissioner of Police

LOWER COURT Compensation Court JURISDICTION : LOWER COURT CC 5550/01 FILE NUMBER(S) : LOWER COURT Hughes CCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40427/03 CC 5550/01

MASON P SANTOW JA TOBIAS JA

Monday 21 June 2004 RONALD JAMES LARSON v COMMISSIONER OF POLICE Judgment 1 MASON P: I agree with Tobias JA. 2 SANTOW JA: I agree with Tobias JA. 3 TOBIAS JA: This is an appeal from a decision of Hughes CCJ of the Compensation Court of New South Wales confirming a decision of the respondent's delegate of 2 March 2001 that the infirmity of "Adjustment Disorder" which was found by the Police Superannuation Advisory Committee to incapacitate the appellant for police duty was not, in fact, duty-related. By s 32(1) of the Compensation Court Act 1984 (now repealed), the appeal to this Court is confined to points of law.

The facts 4 The appellant joined the Police Service in or about 1975 and rose to the rank of Senior Constable. On 28 March 2000, he lodged an Application for Medical Discharge claiming that he had become incapable of discharging the duties of his office. The application asserted that the condition causing his incapacity was Post-traumatic Stress Disorder (PTSD). In accordance with s 10B(1) of the Police Regulation (Superannuation) Act 1906 (the PRS Act) he requested that the SAS Trustee Corporation (the STC) certify that he was so incapacitated. 5 This certification was made with the result that, in March 2001, the appellant was medically discharged from the Police Service. Upon discharge the appellant claimed entitlement to an annual superannuation allowance pursuant the PRS Act. That section provides for the payment of additional superannuation benefits to a "disabled member of the Police Force". Section 10(1) relevantly defines a "disabled member of the Police Force" as: "(a) a member of the police force who is discharged after being certified, pursuant to section 10B(1), to be incapable, from a specified infirmity of body or mind, of discharging the duties of the member's office, or (b) …" that infirmity being determined, pursuant to section 10B(3) or on appeal, to have been 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."

The phrase " hurt on duty " is defined in s 1(2) of the PRS Act as: "…injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987, entitle the member to compensation under that Act."

Section 9A(1) of the Workers Compensation Act 1987 (WC Act) relevantly provides that : "No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury."

6 Various doctors examined the appellant for the purposes of s 10B(1) of the PRS Act. That sub-section provides: "An annual superannuation allowance shall 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 discharging the duties of the member's office."

"STC" is relevantly defined in s 1(2) to mean the SAS Trustee Corporation. 7 On 28 February 2001, the STC had certified that the appellant was "incapacitated for Police duty due to the infirmity of 'Adjustment Disorder' ". The next step in the procedure was governed by s 10B(3) of the PRS Act which relevantly provides: "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." 8 By letter dated 2 March 2001, the delegate of the respondent notified the appellant that, pursuant to s 10B(3)(a) of the PRS Act, he had decided that the appellant's "infirmity of 'Adjustment Disorder' is not duty related", that is, that the infirmity was not caused by the appellant being "hurt on duty" as defined. 9 The appellant, being aggrieved by that decision, applied to the Compensation Court pursuant to s 21 of the PRS Act. That section then relevantly provided: "(1) A person who considers himself or herself aggrieved by: (a) … (b) a decision made by the Commissioner of Police under section 10B(3)(a)… may, within the period of 6 months after the person is notified of that decision, apply to the Compensation Court for a determination in relation to that decision. (4) The Compensation Court, after considering an application under this section, may make a determination that the decision of …the Commissioner of Police…in respect of which the application was made: (a) to be confirmed, or (b) be set aside and replaced by a different decision made by the Compensation Court." 10 The primary judge heard the application on 25 and 26 November 2002 and on 23 April 2003 delivered a judgement in which he confirmed the respondent's decision that the appellant's infirmity (Adjustment Disorder) was not duty related.

The proceedings before the primary judge 11 The appellant gave evidence before the primary judge and was extensively cross-examined. A number of medical reports were tendered but none of the authors of those reports was called to give evidence. The consequence of this was that there were significant but unresolved conflicts between the medical experts, both as to the nature and extent of the infirmity from which the appellant was suffering, as well as with respect to whether that infirmity was the result of his police duties. 12 Essentially, there were five incidents in respect of which the appellant gave evidence that each caused him significant stress. The first concerned the attendance by the appellant at a fatal car accident in Baulkham Hills in 1991. When he arrived at the scene there was a young girl of about 10 years of age lying on the roadway being treated by ambulance personnel. She was seriously injured and was taken away by the ambulance. The appellant subsequently learned that she died later that day. Although he was not concerned with the investigation by the Accident Investigation Squad of that accident, nevertheless the incident caused him significant upset particularly when an aunt of the deceased child accused the police, including himself, of being uncaring. 13 The second incident occurred in or about 1993 when two car crews were dispatched by the appellant, who was the shift supervisor at Castle Hill Police Station, to investigate an incident at a property at Glenorie. The appellant also attended and on arriving at the property was informed by the parent of an 18 year old girl that she was missing. The girl's body was subsequently found hanging from a tree. The appellant, who neither discovered nor saw the body, was present when, or shortly after, the parents were informed that their daughter had been found dead and, due to their obvious distress, he also became upset. 14 The third incident occurred on Mothers Day in either 1994 or 1995 and involved a motor vehicle accident. Again the appellant, as shift supervisor at Castle Hill Police Station, was responsible for dispatching a car crew to the incident. He did not attend himself. It was reported back to him that a three year old boy had died in the accident. Being Mother's Day and understanding the distress of the family of the deceased child (being a parent himself), the appellant also was considerably distressed. 15 The fourth incident occurred on Christmas Eve in 1998 and involved the drowning of an 18 month old child in a family swimming pool. When the appellant attended the scene the child's body had been removed from the pool and had been attended to by an ambulance officer but to no avail. The child was already dead and the covered body lay on the kitchen floor surrounded by the distressed parents. Again, the appellant, according to his description, was "extremely saddened by the loss for this family". 16 The primary judge referred to the appellant's cross-examination as to the effects of these four incidents upon him and found (at [12]) that: "it [is] unlikely that these events had any lasting or causative involvement on the [appellant's] adjustment disorder." 17 The basis of this finding, as I understand it from the cross-examination extensively reproduced by his Honour in his judgment, was that after each incident the appellant took no time off work, did not report the alleged effect of the incident to anyone, made no complaint about its effect upon him to anyone, did not seek help from any police medical officer, did not consult his own family doctor with respect to it and made no application for "hurt on duty" benefits notwithstanding that he was aware of the facility for time off and/or assistance through the "hurt on duty" procedure. 18 The final incident occurred on 8 October 1999, when the appellant was involved at the police station where he was stationed in an altercation with a man called Haddad who required restraining after being arrested for drug offences. This person bit the appellant on the right wrist. He was concerned that Haddad may have been infected with HIV or Hepatitis C as he was a drug user and/or dealer. The appellant was taken to hospital, a blood test was carried out but the result was negative. It would also appear that Haddad tested negative at or about the same time in respect of these particular diseases. However, the appellant had to wait a further three months for confirmation of the negative blood test. He maintained that he was very distressed by this incident and, in particular, by the necessity to wait three months for final confirmation that he had not been infected. It was only in respect of this incident that the appellant made application for "hurt on duty" benefits prior to his discharge. 19 After reciting the above incidents and some of the evidence that the appellant gave with respect thereto, the primary judge said: "19. I did not find the applicant's evidence to be reliable and his credit was effectively attacked by Ms Stenmark. Especially telling was the passage in the cross-examination about the incident with Haddad at the police station." 20 The primary judge then referred to the medical reports tendered before him. I will refer only to those relevant to the issues debated on the appeal. 21 Dr Leonard Lee, in a report dated 21 June 2000 to the respondent, expressed the opinion that there was no objective evidence of psychiatric disorder and that the appellant's condition was not substantially work related. His opinion was that the appellant claimed "that he has been affected by many traumatic incidents over the 25 years [of his police service], but given his untruthfulness, it is difficult to give this much credibility. Therefore, I do not believe he has any variant of Post-traumatic Stress Disorder. In simple language, he seems unhappy with his work. There is no objective evidence of impairment." 22 Dr Kenneth Dyball, consultant psychiatrist, opined in a report dated 16 January 2001 to the respondent, that on the history obtained by him "from a psychiatric point of view this man has suffered an adjustment disorder with anxiety and depression following the possibility of infection after the injury occurring in October of 1999. On the history as given to me it would be quite impossible to make the diagnosis of a post-traumatic stress disorder."

However, Dr Dyball was of the opinion that the appellant was unfit to discharge his police duties by virtue of his diagnosed illness of " an adjustment disorder ". 23 Dr Blows was the appellant's treating psychiatrist. He first saw the appellant on 28 January 2000 when his local general practitioner, Dr Prabhu, referred him. In his report of 4 July 2002, Dr Blows set out a history which concentrated on the incident of 8 October 1999 and the appellant's problems since that time. By the time he first saw Dr Blows he had apparently been transferred from Castle Hill where he had been for nine years and he was concerned that he had been treated with a lack of dignity by one of his bosses and that he had lost the respect of his colleagues. The history did, however, include a statement to the effect that the appellant had been through "hundreds of incidents" that, according to Dr Blows, could reasonably result in a Post-traumatic Stress Disorder including a light plane crash near Dubbo with a fatality and, in particular, his reaction to the first incident to which I have referred in [12] above. 24 Dr Blows' diagnosis confirmed that of "Adjustment Disorder with Anxiety and Depression". He further opined that the cause of the appellant's symptoms directly related to his experiences at his place of work. Dr Blows indicated that he disagreed with the opinion of Dr Lee in the latter's report of 21 June 2000. Although he agreed with Dr Dyball's conclusions as to his work capacity, he maintained there was a difference between them in the way the symptoms were to be interpreted. 25 Dr John Champion saw the appellant on behalf of the respondent on 13 June 2002. He provided a report dated 9 July 2002 - parts of which were cited by the primary judge in [22] and [26] of his judgment. Dr Champion rejected any diagnosis of PTSD. On the basis of the appellant's presentation at the time he saw him, he considered that there was some indication of some emotional distress present at times but little indication at other times of any current psychiatric disorder. He considered that: "[t]he precise symptoms of which he complained were vague and generalised and seemed more in the nature of emotional distress than a specific psychiatric disorder." 26 He disagreed with the opinions of Dr Blows and, in particular that the appellant was suffering from PTSD. He considered that "[t]he symptoms complained of by Mr Larson are exceedingly vague and at best could be described as emotional distress, possibly in the form of anxiety/depression. I understand that this has been referred to as an Adjustment Disorder and considered to be the basis of a medical discharge." 27 Importantly, Dr Champion summarised his conclusions in the following terms: "In summary therefore: I do not believe that Mr Larson has suffered any significant or lasting psychiatric disorder as a result of the incident of the 8/10/1999. I do not believe that the various previous experiences referred to by Mr Larson whilst working as a police officer produced any psychiatric disorder or play any role in current claims of incapacity. Currently Mr Larson has been retired on the basis of Adjustment Disorder. This diagnosis as specified in the DSM-IV may be present in mild degree and as such would be consistent with normal emotional reaction to circumstances. The extreme emotional response he describes and which has lead to his retirement, may represent the development of constitutional anxiety and depression ie without any stressful precipitant, however this seems unlikely on the basis that there is no background to suggest a vulnerability to psychiatric disorder, in terms of predisposition. In this case I feel it is likely that the knowledge of an impending transfer away from a settled position at a police station close to his home, may have produced both emotional distress and anger leading to the development of the Adjustment Disorder. In my opinion it is likely that Mr Larson has recovered considerably from the Adjustment Disorder and current complaints of ongoing distress relate to compensation matters. I note that he takes no medication and has long ceased any form of treatment. I would also conclude that any contribution to that Adjustment Disorder made by the event of the 8/10/1999 had ceased following the second blood test some three months after the incident." 28 Dr Blows was provided with a copy of Dr Champion's report of 9 July 2002 and, in a report dated 9 October 2002, trenchantly criticised it. Dr Champion responded to that criticism in kind in a report dated 25 October 2002. Ultimately, he agreed to disagree with Dr Blows. 29 The primary judge's conclusions, based on the medical evidence, were as follows: "25. Dr Blows and Dr Champion exchange the opinions about what constitutes post-traumatic depression which is interesting but really irrelevant to my determination which is to decide whether or not the adjustment disorder is caused by the applicant's duties as a policeman. Dr Armstrong, a psychologist, also though I am not sure he is qualified to, has made a diagnosis of post-traumatic stress disorder. Dr Clark, another psychologist finds the applicant has classical post-traumatic stress disorder with ensuing dysthymia. 26. After going through all of the medical reports I find that Dr Champion's report dated 9 July 2000 to be the most persuasive; he finds 'Currently Mr Larson has been retired on the basis of an adjustment disorder [sic]. This diagnosis as specified in DSMIV may be present in a mild degree, as such would be consistent with normal emotional reaction to circumstances. The extreme emotional response he describes which has led to his retirement may represent the development of constitutional anxiety.' 27. I am satisfied from the presentation and evidence of Mr Larson and those of the doctors that Mr Larson has for many years reacted to stresses in his life and has recovered until the next stressor comes along. I am satisfied that as Dr Champion says this probably represents the development of constitutional anxiety. I am satisfied that is not a function of his police work but a function of his personality. 28. I find that the applicant has not discharged the onus of proof that is on him on the balance of probabilities for me to decide that he has been hurt on duty. I decline to alter the finding of the delegate of the police commissioner. 29. There will be award for the respondent."

The submissions 30 As I have already noted, the appellant's appeal to this Court is confined to points of law. However, the appellant submits that although the primary judge asked himself the right question in the first part of [25] of his judgment, he then proceeded to answer a different question. The basis of that submission, as I understand it, was that the only issue for determination by his Honour was one of causation: ie he was required to accept that the appellant was discharged from the Police Service on the basis of an "Adjustment Disorder" so that the only issue was whether that "infirmity" was caused by his duties as a policeman. Accordingly, he was not required to determine whether the appellant was in fact suffering from an "Adjustment Disorder" at any material time. However, according to the appellant, this is what he did. 31 The source of the primary judge's error was said to stem from the passage from Dr Champion's report recorded in [26] of his judgment which proceeded, it was submitted, on the basis that the appellant may or may not be suffering from an "adjustment disorder" and, in particular, that if it did exist it was only present to a "mild degree". It was submitted that his Honour was required to proceed upon the basis that the appellant was in fact suffering from an "Adjustment Disorder" to an incapacitating or disabling degree. There was no "may" or "might" about the existence of that condition. Accordingly, his Honour proceeded upon a false factual basis which vitiated the only decision he was required to make, namely, whether or not his infirmity of "Adjustment Disorder" was duty related. 32 It was further submitted that the "extreme emotional response" referred to by Dr Champion which led to the appellant's retirement and which he, Dr Champion, considered might represent the development of "constitutional anxiety", was not said by Dr Champion to be the same as an "adjustment disorder". Accordingly, his Honour's conclusion in [27] of his judgment that the stresses suffered by the appellant probably represented the development of constitutional anxiety and was a function of his personality, proceeded upon the basis of an infirmity which was different from that of an "Adjustment Disorder" which his Honour was required to accept for the purpose of determining the issue of causation with which he was solely concerned. 33 The appellant further submitted that the primary judge's reasons were inadequate in that they were so unclear that one could not understand with reasonably certainty why he decided as he did. Reliance was placed upon the principle expounded by McHugh JA in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 281 that the failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done, but must be seen to be done: see also, Mifsud v Campbell (1991) 21 NSWLR 725 at 728C. 34 The respondent submitted that the primary judge accepted that the appellant's infirmity was that of an "Adjustment Disorder" but considered, on the basis of Dr Champion's evidence, that it was probably the product of his constitutional anxiety or, as his Honour described it, a function of his personality. It was, therefore, not a product of his police work. It was further submitted that the primary judge's reasons met the necessary threshold for adequacy.

Did the primary judge commit an error of law? 35 Clearly, under s 21 of the PRS Act, the only question which the primary judge had power to decide was whether or not to confirm the respondent's decision under s 10B(3)(a) of the PRS Act that the appellant's incapacitating "Adjustment Disorder", certified under s 10B(1), was not caused by his being "hurt on duty" as defined. His Honour had no power under s 21 of the PRS Act to decide the anterior question, that is, whether or not the STC had correctly certified under s 10B(1) that the appellant was suffering from an "Adjustment Disorder" and was thereby rendered incapable of discharging his duties. So much was common ground between the parties and in accordance with authority: Saad v Commissioner of Police (1995) 12 NSWCCR 70 at 75F. 36 In determining causation under s 10B(3) of the PRS Act reference, in the first place, must be had to two sections of the WC Act: s 4 and s9A. So much follows from the definition of "hurt on duty" in s 1(2) of the PRS Act extracted at [5] above, whereby a member (or former member) is considered to be hurt on duty where their infirmity is such that if the member came under the WC Act they would be entitled to compensation in respect of that infirmity. Under s 9A(1) of the WC Act no compensation is payable unless the worker's employment was "a substantial contributing factor to the injury", while pursuant to s 4(1), a worker is only injured where the definition of 'injury' is satisfied: ie where there is a "personal injury arising out of or in the course of employment" (see also s 4(b) and (c)) 37 Accordingly, the Commissioner of Police (or a Compensation Court judge making a determination under s 21 of the PRS Act), in determining if the infirmity was caused by the member being hurt on duty is required, as a primary threshold, to be satisfied of two matters. Firstly, that the employment concerned was a substantial contributing factor to the injury (i.e. the infirmity). Unless s 9A(1) is satisfied, the Commissioner of Police cannot find that the member was "hurt on duty". Secondly, that there is a personal injury in the sense that it arises out of or in the course of employment. The mere finding that both the employment was a substantial contributing factor and that the injury arose out of or in the course of employment is not necessarily determinative of the issue: other provisions of the WC Act may remove any entitlement to compensation, for example, s 14(2) concerning wilful misconduct of the employee. If, however, it is clear that either the employment was not a substantial contributing factor or that the injury did not arise out of or in the course of employment, then there is no causation for the purposes of s 10B(3) of the PSR Act: the infirmity was not caused by the member being "hurt on duty". The satisfaction of both s 9A(1) and s 4 therefore is a necessary but not always a sufficient condition of establishing that an infirmity was caused by the member being hurt on duty. 38 The fact that both s9A and s4 require independent satisfaction has been pointed out recently by this Court: in Mercer v ANZ Banking Group (2000) 48 NSWLR 740 at 747-748 per Mason P with whom Meagher and Beazley JJA agreed (where the phrase "arising out of or in the course of employment" was being considered in the context of s 9A(3)) and McMahon v Lagana [2004] NSWCA 164 at [25] and [33] per Hodgson JA with whom Santow JA and Stein A-JA agreed. Accordingly, an injury may arise out of or in the course of employment (and so satisfy s 4) but in circumstances where the employment may not be a substantial contributing factor to the injury (and thus not satisfy s 9A). This point is also made clear in the wording of s 9A(3). Conversely, in a given circumstance, employment may be considered to be a substantial contributing factor (and so satisfy s 9A) but the injury may not arise out of or be in the course of employment (and so not satisfy s 4). 39 Accordingly, where the Commissioner of Police does not find both s 9A(1) and s 4 satisfied, then causation is, quite simply, not established: the infirmity would not have been caused by the member being hurt on duty. If both s 9A(1) and s 4 are satisfied, then, as I have said above, while a necessary threshold has been satisfied the issue of causation has not necessarily been wholly determined in the sense that another factor, (for instance, wilful misconduct under s 14(2)) may remove any entitlement to compensation. Where this is the case, then the member will equally not have been "hurt on duty" as that term is defined in s 1(2) of the PRS Act. 40 Returning to the decision of the primary judge, it is first necessary to understand what Dr Champion was saying in the passages from his report set out in [27] above and which, as appears from the opening words of [26] of the primary judge's reasons, his Honour accepted as the basis for his decision. 41 The problem arises from the way Dr Champion expressed himself in the following passage from his report: "…The extreme emotional response he describes and which has led to his retirement, may represent the development of constitutional anxiety and depression ie without any stressful precipitant, however this seems unlikely on the basis that there is no background to suggest a vulnerability to psychiatric disorder, in terms of predisposition." 42 In my opinion that part of this passage commencing with the words "however this seems unlikely" governs, and was intended to govern, only the immediately preceding words, "without any stressful precipitant". Accordingly, Dr Champion was not saying that it was likely that the appellant's constitutional anxiety and depression (and depression was clearly part of, or at least a symptom of, his "adjustment disorder") was due to predisposition without the trigger of a stressful precipitant. On the contrary, Dr Champion was conveying that the appellant's emotional responses were triggered by stressful precipitants. The relevance of Dr Champion's reference to the "development of constitutional anxiety" was that it was his opinion that the underlying cause of the appellant's "extreme emotional response" was his constitutional anxiety. Accordingly, although stressors triggered his symptoms, the underlying cause of his emotional responses was not work related but, as the primary judge described it, a function of his personality or, as Dr Champion described it, due to the development of constitutional anxiety. 43 In my opinion, a fair reading of Dr Champion's summary reveals that he was not seeking to deny the diagnosed condition of "Adjustment Disorder". Rather, he was opining that it was related to the probable development by the appellant of constitutional anxiety and not to his work as a police officer. That this is so is confirmed by Dr Champion's opinion, reproduced by the primary judge in [23] of his judgment, that he did not "…believe that the various experiences referred to by Mr Larson whilst working as a police officer produced any psychiatric disorder or play any role in current claims of incapacity."

This was not a denial by Dr Champion of the diagnosis of " Adjustment Disorder ". He was merely opining that the appellant's work experiences did not cause it. To put it another way, the appellant's employment was not a substantial contributing factor to his development anxiety. Indeed, besides being a trigger for what was already present in his personality, it seems to have played no causative role at all. While it is true that the primary judge made no reference to s 9A(1) (or s 4) as perhaps he ought, nonetheless his Honour's reasoning makes it plain enough that the appellant's work was not a substantial contributing factor to his disorder. Thus, the necessary causative link as required by s 10B(3) was not made out. 44 Dr Champion also confirmed this opinion in the last paragraph of his report, which I have recorded in [27] above. 45 Upon the basis of the foregoing understanding of Dr Champion's report (which in my view was also that of the primary judge), his Honour's findings in [27] of his judgment logically follow from his acceptance of Dr Champion's evidence. The findings of the first and second sentences are consistent with Dr Champion's opinion as explained in [38] above. The finding in the third sentence is consistent with that opinion as explained in [38] above. 46 On the foregoing basis, the primary judge's reasoning is both consistent with the evidence of Dr Champion, which he preferred, and logically follows from it. Although his Honour's reasoning was, at least on an initial reading, somewhat opaque and might have been more expansive and more felicitously expressed, the essentials are there and satisfy the requirements of adequacy. 47 Further, his Honour clearly and correctly understood the question he was to answer and acknowledged in the opening sentence of [25] of his judgment the irrelevancy to his determination of that question of the various and conflicting medical opinions as to what constituted post-traumatic depression. In my opinion, he did not reject the diagnosed infirmity of "Adjustment Disorder" as the appellant's infirmity, the cause of which he was required to determine. His finding was no more than that condition was not a function of the appellant's police work but of constitutional origin. It follows that no error of law on the part of the primary judge has been demonstrated. 48 I cannot conclude these reasons without observing that this case once again illustrates the dangers facing a party, on whom the onus of proof of lies, of merely tendering medical reports and declining to cross-examine his opponent's doctors who have expressed conflicting opinions on a critical issue. The difficulty of resolving such conflicts faced by a trial judge in these circumstances (including an experienced judge of a specialised court such as the Compensation Court) is self-evident. The judge can probably do no more than decide the case by reference to whether the moving party has discharged the onus of proof. It is true that in the present case each of Drs. Blows and Champion were asked to comment on each other's reports, but this did nothing to resolve the conflict between them. If anything, it merely entrenched it and made the resolution of that conflict even more problematic for the primary judge. Accordingly, although his Honour found Dr Champion's report to be "the most persuasive", he had little choice but to decide the matter by ultimately asking himself whether the appellant had discharged the onus of proving on the balance of probabilities that his infirmity was duty related. His Honour was not so satisfied. His process of reasoning to this conclusion does not reveal appealable error. 49 For the foregoing reasons, I would propose that the appeal be dismissed with costs. **********

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