The first decision of the Industrial Court
31The first decision of the Full Bench of the Industrial Court (the Full Bench) resulted from a referral of five questions to it from Haylen J, to whom the appeal concerning the applicant's refusal to include CPTSD in the first respondent's certification of incapacity was originally assigned. The parties apparently accepted that an earlier decision of the Full Bench, Hazlewood v SAS Trustee Corporation [2008] NSWIRComm 215 (Hazlewood), was fatal to Mr Woollard's appeal unless overruled. It is not necessary to determine in the present proceedings whether the decision in Hazlewood was contrary to the first decision, or whether it was correct or otherwise. The question is whether or not, in reaching the conclusion that it reached, the Full Bench made an error and whether or not that error was a jurisdictional error.
32In the first decision, the majority of the Full Bench (the majority) considered that upon the proper construction of s 10B(2)(a) of the Act, different notification was required in respect of an injury received in what they described as a "frank incident" as compared to a disease of gradual onset. In the former case they said it was necessary to notify an event, an injurious consequence and a connection between the two. By that their Honours presumably meant that both the event giving rise to the injury and the injury which resulted had to be notified. However, they stated that in the case of an infirmity of body or mind, caused by the gradual onset of disease, notification was sufficient when it was of "symptomatology sufficient to demonstrate the onset of the disease".
33In reaching this conclusion, the majority emphasised that it was necessary to consider s 10B(2)(a) of the Act in what they described as a broad context. They said (at [170]) that this involved consideration at four levels, first, the level of the subsection itself, second, the section in which the subsection falls, third, in light of the prescribed form of notice and fourth, in terms of the overall statutory scheme and legislative purpose.
34Their Honours concluded that the word "injury" in s 10B(2)(a) of the Act must take its context from the words "which has caused the member's infirmity". In those circumstances they concluded it was difficult to construe the meaning of the word "injury" to be the onset of symptoms alone. Their Honours stated that, amongst other reasons, their conclusion derived support from the form of notice contained in Sch 3 of the Police Superannuation Regulation 1984 (NSW) (the Regulations), which they concluded remained in force. They considered (at [185]) that the sections of the prescribed form of notice which inquire as to the date, time and other details of the incident, which resulted in the injuries being received, tend to indicate that the injury related to an identifiable event.
35The majority then considered that, having regard to the definition of "hurt on duty" in the Act, some assistance as to the meaning of the word "injury" could be obtained from the provisions of the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW). Their Honours referred to the definition of "injury" in the Workers Compensation Act, a decision of this Court (Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606) and a decision of the Compensation Court (Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422). Their Honours noted that these cases concluded that an incident involving a physical change in a worker could be regarded as an injury within the meaning of s 4 of that Act and reached the following conclusion (at [200]):
"[200] Under the WC Act, the 'injury' which is compensable is the injurious event - that is, an event capable of causing harm which does in fact cause harm. The workers compensation authorities, in this respect, do not provide support for the contention of the appellant that the reporting of either an event capable of causing harm or of symptoms alone can constitute compliance with s 10B(2)(a)."
36Notwithstanding this conclusion their Honours formed a different view in relation to what they described as psychological infirmities. They noted that under the Workers Compensation Act a worker was entitled to compensation for psychological illness when the illness was a disease of gradual onset. They observed that in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 the High Court held that mental illness can be a disease within the meaning of that Act. They then concluded (at [214]), by reference to the meaning of the word "infirmity", that "a member of the police force who suffers a psychological illness in the form of a disease of gradual onset must be taken to be, as a matter of construction, hurt on duty for the purpose of the...Act". As a consequence they reached the following conclusions:
"[215] In our view, this conclusion must bear upon the construction of s 10B(2)(a). The notice requirement of that sub-section should not be construed in a manner which will deprive the PRS Act from having its full and effective operation. In other words, the requirement for notice shall not be read in a manner inconsistent with the intention of the hurt on duty provisions of that legislation, namely, that additional benefits shall be payable to members with psychological infirmities - and, in particular, psychological infirmities which, of their nature, are diseases of gradual onset - contracted as a result of their work.
...
[225] In view of these conclusions, we consider that the proper construction of s 10B(2)(a) is that, where the infirmity of mind is a psychological illness which is a disease of gradual onset, the injurious event requirement should be construed as concomitant with the requirement to notify symptomatology, provided that the symptomatology is sufficient to demonstrate the onset of the disease (the onset of the disease being the 'injury', causative of the ultimate infirmity (the disease itself), referred to in s 10B(2)(a)). In other words, the injurious event, in such cases, which occurs not in a frank incident but gradually over time, is notified under the sub-section by the reporting of a sufficient symptomatology."
37Boland P adopted a different approach. He concluded (at [70]-[71]) that the applicant was not entitled to rely on the information given to it by the Commissioner of Police (namely that there had been no notification of the injury) and was in error in reaching its conclusion relying on that information. He held that responsibility for determining whether notification was given lay with the applicant and there was insufficient material before him to determine if notification had been given. However, as with the majority, he appeared to conclude that the reporting of symptoms would be sufficient notification. This appears from the following paragraphs of his judgment:
"[118] Section 10B(2)(a) refers to an injury that caused an infirmity of body or mind. I do not think it is contested that a traumatic event may cause an injury - a psychic injury - thereby causing an infirmity of mind, such as post traumatic stress disorder.
[119] There is no doubt that in the period 1996 to 1998 Mr Woollard reported a range of conditions including fatigue, stress, poor memory, lack of concentration, lethargy, dizzy spells, anxiety, depression, impaired cognitive functions and not sleeping well. It is evident that STC accepted these conditions as the notification of an injury or injuries in accordance with the timeframe in s 10B(2)(a) and in a form that complied with s 10B(2)(b), otherwise it could not have issued a certificate in 2010 that 'Mr Woollard was incapable, from the infirmity of the mind, namely "Major Depressive Episode", of personally exercising the functions of a police officer ... at the time of his retirement.'
[120] However, STC maintained the notified injury or injuries did not cause the infirmity of chronic post traumatic stress disorder. The respondent submitted that whilst the injuries and symptoms notified by the appellant supported a diagnosis of a depressive condition they were not of such a nature as to indicate the injury or injuries were causative of chronic post traumatic stress disorder.
...
[122] Accordingly, having regard to what I have determined, I would propose that the question of whether the injury or injuries relied upon by the appellant may reasonably be regarded, for the purposes of s 10B(2) of the PRS Act, as causing the appellant's claimed infirmity, namely, chronic post traumatic stress disorder, be referred back to Haylen J pursuant to s 193(3) of the Industrial Relations Act."
38Unlike the majority, Boland P did not suggest that this was a result of the different operation of the section in the case of frank injuries compared to the case of diseases of gradual onset. Rather, he seemed to conclude that the reporting of symptoms could be sufficient compliance with the notice requirements in s 10B(2)(a) of the Act in all cases.
39As the conclusion of the majority raised the question of whether CPTSD was a disease of gradual onset, the Full Bench ordered that the matter be delegated to a Member of the Full Bench to take evidence in advance of a further hearing of the Full Bench, which would then determine the matter in accordance with the first decision.