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.
79 There was no evidence that the respondent completed the Schedule 3 form whilst he was a serving police officer, or within six months of his medical retirement for the purposes of contending that he was suffering from PTSD. In this respect, Marks J observed at [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.
80 The incidents or events that his Honour was referring to were that the respondent had been involved in investigating numerous deaths and other serious matters prior to 1984 in respect of which he was required to prepare relevant reports, maintain occurrence pad records and other documents. Whilst his Honour found that such incidents and events were brought to the attention of the Commissioner by the respondent, his Honour noted that there was no evidence that the respondent drew the Commissioner's attention to the impact that such events or incidents had on him at any time prior to 1984 (or, I would add, thereafter). Nevertheless, his Honour concluded that there had been compliance with the provisions of s 10B(2)(a) of the Act for part of the relevant period. Although his Honour did not make clear what the relevant period was, I have assumed it was up to 23 November 1984. His Honour went on to observe at [96]:
... 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. (ie., post 1984).
81 Mr Ower did not challenge his Honour's finding that the respondent was suffering from PTSD, because there was medical evidence that supported that finding, albeit diagnosed in May 2005. However, the fundamental issue was whether there was notification of the injury causing the infirmity in accordance with the requirements of s 10B(2)(a) of the Act. A requirement for certification is that the infirmity had to render the police officer incapable of performing his/her duties at the time of resignation or retirement. What the appellant contended was that the respondent did not identify the 'injury' that caused the infirmity of mind, namely, PTSD, in accordance with 10B(2)(a).
82 The respondent's application for medical discharge, which was dated 23 June 1997, listed under 'medical conditions' claimed, the following:
Alcohol - liver damaged - severe ulcers stomach and gullet; complicated diverticular and polyps; depression and bilateral hernia - affecting groin.
83 The application required the respondent to indicate whether any of the medical conditions were claimed as "hurt on duty". The respondent ticked "no" in respect of each of the conditions. The Disputes Committee of State Superannuation certified those infirmities, which the appellant contended was not PTSD. During cross-examination, the respondent's evidence was that at the time of his resignation, he did not regard any of his conditions as being work related. The respondent said that he was aware there was such a condition as PTSD but that he had not realised he was suffering from that condition until diagnosed as having it in 2005.
84 In my view, s 10B(2) of the Act requires not only notification, but also that the infirmity, which is sought to be certified as rendering the police officer incapable as at the date of resignation was existing at that time. His Honour considered at [92] - [95], as set out earlier, whether there had been possible compliance with s 10B(2)(a) of the Act after 1984 and concluded that there had been no such notification. His analysis was that the respondent had not complied with the section. However, at [96], his Honour, incorrectly in my view, concluded that there had been compliance with the provisions of s 10B(2)(a) of the Act for part of the relevant period during which the events and incidents upon which the appellant relies occurred, that being, I assume (as his Honour did not make this clear), between 1979 and 1984. There was no provision for an annual superannuation allowance before 1979.
85 There was no basis for his Honour to find that there was some, or part, compliance with s 10B(2) of the Act during this period because the Commissioner of Police was notified of incidents and events via reports which the respondent was required to submit to the Commissioner of Police.
86 Furthermore, it was not open to his Honour to construe the section as requiring 'the identification of some precipitating event or circumstances that in turn brought about the injury.' Such a construction is not supported by the express words of the section. No such differentiation is made in the wording of s 10B(2)(a) of the Act, which refers specifically to the "injury" which has caused the infirmity. There was no justification on the proper construction of the section to differentiate between "events" and "injury". The legislature has not made such a distinction.
87 The difficulty with his Honour's analysis is that it is impossible to discern within the time frames prescribed by s 10B(2)(a) of the Act, whether the police officer's exposure to a traumatic event is injurious without the proximate manifestation of symptoms.
88 The practical effect of his Honour's analysis is that the notice requirements of the section are inapplicable with respect to particular injuries such as the onset of PTSD. The section is expressed in mandatory terms and, in my view, this could not have been the statutory intent.
89 The critical issue in respect of which the respondent has failed was the lack of notice required pursuant to s 10B(2)(a) of the Act. In my view, the contention by the respondent that there was substantial compliance with the requirements to give notice because the respondent advised the Commissioner of Police of traumatic events, is misconceived. There is a difference between exposure to these traumatic events and injurious consequences. Marks J determined that the respondent had PTSD at the time of his discharge. In my view, the section is applicable to PTSD. If an injury causing the PTSD had been notified prior to discharge, the respondent would have been entitled to have the infirmity causing his incapacity certified.
90 There needs not only to be notice of the fact of a circumstance, that is, a physical circumstance which may be constituted by the reporting of an event and the existence of a condition, for example, depression, but also a communication that there is a connection between these two events. In other words, there needs to be notification given by a police officer or former police officer or his medical representatives, that the events which have occurred are in some way impacting upon him physiologically, or in some other way that has the capacity of manifesting in the ultimate condition.
91 What the legislation requires is notification of an injury, which could include either a physical wound or psychic injury such as depression, which the police officer claims caused the infirmity rendering the officer incapable of performing his or her duties.
92 In this case, even though the police officer said that he was depressed, he also needed to add that this was because of what happened to him whilst carrying out his police duties, or consequence of it, in order to meet the requirement of s 10B of the Act. What is required is some evidence from the police officer, or his medical practitioner, to this effect. In this matter, the respondent had received extensive psychiatric treatment from Dr McGrath before his resignation. It was incumbent upon the member to put forward that information. In his application for medical discharge, the respondent stated that the depression was caused by alcohol related problems. There was no evidence that the depression was related to any other factor.
93 The statutory responsibility of the appellant is only to certify the infirmity. It does not enter into whether that infirmity was caused by injury. It is only concerned with whether the claimed cause of the infirmity has been notified. The next step is for the Commissioner of Police to decide, after STC has decided that the former member suffered from an infirmity, whether that infirmity is 'hurt on duty'. In this case, the respondent received a certificate under s 10B(2) of the Act. The Commissioner of Police decided that it was not a 'hurt on duty' in accordance with s 10B(3) of the Act. This included that the respondent had suffered from depression. An appeal was lodged against this determination pursuant to s 21 of the Act. This section enables a person who is aggrieved by a decision made by the Commissioner of Police under s 10B(3)(a) of the Act to apply to the District Court for a determination in relation to that decision.
94 It is clear that insofar as the injury was concerned, this was not a matter for the appellant. The disputes committee had only needed to be satisfied of the notification as required by s 10B(2) of the Act. It does not have to concern itself about the injury. Although a curious result, what is critical is the giving of timely notice of injury. In essence, the respondent's complaint is that the appellant has acted prematurely in relation to determining the notice of injury issue in the case of a disease where in fact there is no defined injury date by reference to a single traumatic event.
95 Mr B Gross SC, who appeared for the respondent, submitted that the proper construction of s 10B was that all of the steps contemplated in s 10B should occur before the appellant ultimately determined the question of notification to the Commissioner of Police. In other words, the appellant would issue a certificate to the effect that an infirmity existed: in this case, PTSD. The Commissioner of Police would consider that certificate and whether the infirmity arose because the police officer was hurt on duty (s 10B(3) of the Act). Either the Commissioner of Police, or the District Court, may find that the infirmity was caused by the member being hurt on duty and that it occurred on a particular date. The appellant would then be required to consider whether or not the former member notified the Commissioner of Police before resignation or retirement and within six months of receiving the injury (s 10B(2) of the Act). The appellant would conclude that notification did not occur (upon advice from the Commissioner of Police) and that would conclude the matter.
96 Section 10B(2) requires not only the certification of the infirmity, but also the certification of the infirmity given the prerequisite of notice being satisfied. Mr Gross' construction of s 10B of the Act puts the matters to be considered under s 10B of the Act in the statutory context in the incorrect order. Pursuant to s 10B(2) of the Act, there are three prerequisites. First, there is the notification: s 10B(2)(a) of the Act. Secondly, where required that the notification was in the prescribed form: s 10B(2)(a1) of the Act. Thirdly, the Board certifies the former member would have been incapable, from that infirmity of discharging the duties of his office at the time of his resignation or retirement (s 10B(2)(b) of the Act). If any of these requirements under s 10B(2) of the Act are not satisfied, then s 10B(3) of the Act is unable to operate because it is dependent upon a member, or former member, of the police force being duly certified under s 10B(1) or s 10B(2) of the Act. The approach of Mr Gross introduces a layer of complexity that is not warranted.
97 The legislature has determined that notification should be the first step. If there is no notification with which to start, then there would be no certification and, therefore, no need to potentially have two or three sets of proceedings before s 10B(2)(a) of the Act is considered. This would appear, potentially, to give rise to a significant injustice, such approach being contrary to the proper construction of the section and not being in the public interest.
98 In my view, the intention of the legislature in requiring the provision of notice was to ensure that, at the requisite time, the assessment which was made as to the infirmity was an assessment made at/or before the time of retirement. There are no problems that arise in respect of s 10B(1) of the Act as it applies to a member of the police force. Section 10B(2) of the Act applies to a former member of the police force. There is no limit, in terms of time, when a former police officer can apply for an annual superannuation allowance. However, there are now time limits as to when a dispute can be lodged and also an appeal lodged. Because a former police officer could apply for a certificate 20 years after retirement, the legislature has chosen to have certain notification provisions included in s 10B(2) of the Act. If the Commissioner of Police were to make a decision under s 10B(3)(a) of the Act prior to notification under s 10B(2)(a) of the Act being determined, it would render the latter section otiose.
99 On its face, the appellant has no independent role in determining whether or not notice has been given in accordance with s 10B(2)(a) of the Act. This raises the question as to whether it would be inappropriate, from the statutory viewpoint, for the appellant to go behind the notification given, or alleged to have been given to the Commissioner of Police, to determine if notice had, or had not, been given. In respect of this matter, an examination of the material found in the application for medical discharge may disclose elements of a condition that should be treated as being referable to a statement of advice as to the onset, or the existence of PTSD, and therefore constitute notice of the requisite kind.
100 Ultimately, it is a question of fact as to whether or not notice was given. In this regard, the appellant is reliant upon the advice and information it receives from the Commissioner of Police. The Commissioner of Police, as employer, has access to employment, sick leave and other records of a police officer. As such, he is in a position to assess and record the circumstances causing injury. Section 10B(2)(a) of the Act nominates the Commissioner of Police as the person to be notified as a prerequisite to benefits being payable. In circumstances where the Commissioner of Police positively asserts no notification has occurred with regard to the claimed infirmity and no records are produced to prove otherwise, which was the case here, there is no scope for the appellant to unilaterally decide that the respondent's non-compliance shall be disregarded.
101 The respondent sought to import the definition of injury and disease, as found in s 4 of the Workers Compensation Act 1987, into s 10B of the Act to assist in determining whether the respondent was hurt on duty. This led Mr Gross to refer to a number of decisions where the definition of 'injury' in s 4 of the Workers Compensation Act and the 'date of the infirmity' in s 15 and s 16 of the Workers Compensation Act was considered. The Workers Compensation Act definition of 'injury' is only relevant for the determination of the question of 'hurt on duty'. This question only arises for determination by the Commissioner of Police after the appellant has certified the infirmity under s 10B(1), or s 10B(2) of the Act and not before.
102 The appellant would trespass on the statutory responsibility of the Commissioner of Police if it were to consider the 'notice requirement' in 10B(2)(a) of the Act by reference to s 4 of the Workers Compensation Act. If the appellant were permitted to do this, then it would pre-empt the decision to be made by the Commissioner of Police under s 10B(3) of the Act, thereby rendering the subsection superfluous. There is no reference to 'hurt on duty' in s 10B(1) or s 10B(2) of the Act. It is not until s 10B(3) of the Act that the concept appears. In Lembcke v SAS Trustee Corporation [2003] NSWCA 136; 56 NSWLR 736, the Court of Appeal considered the interpretation of s 10(1A) of the Act which uses the term 'hurt on duty'. Ipp JA observed at [55] - [56] as follows:
[55] There is nothing in s 10(1A) of the Police Regulation (Superannuation) Act 1906 that warrants construing it as if it were a part of the Workers Compensation Act 1987. The Police Regulation (Superannuation) Act is an entirely separate and independent statute and phrases in it must be construed by reference to its own context, not the context of the Workers Compensation Act or any other statute. The fact that like phrases are used in parts of the two Acts does not necessarily result in those phrases bearing the same meaning.