[11] Nevertheless, given its wording, there seems to be no alternative to construing s 10B(2)(a) as meaning that prior to certifying incapacity because of an infirmity of body or mind, all STC needs to be satisfied about is that the former member notified the Police Commissioner within the prescribed time of an injury that the former member claimed caused that infirmity.
8 In Hazlewood, the principal issue before the Full Bench was also whether notification of the injury causing the infirmity had occurred in accordance with the requirements under s 10B(2): per Staff J at [81] (with whom Boland J, President and Walton J, Vice-President agreed). The Full Bench ultimately found that Mr Hazlewood had failed to notify the Commissioner of Police as required under the relevant statutory provisions (and accordingly he was disentitled to relief).
9 Under s 10B(2)(a1), notification was to be "in or to the effect of the prescribed form", if the regulations so required. Staff J, in Hazlewood, held that, pursuant to an amendment to the Police Superannuation Regulation 1984 (1984 Regulation), a form was prescribed for the purpose of s 10B(2) of the PRS Act. The 1984 Regulation came into effect on 23 November 1984. Clause 6 of that Regulation provided:
A notification of injury under section 10B(2)(a) of the Act shall be in or to the effect of the form in Schedule 3.
10 Schedule 3 set out the prescribed form. It was prefaced with the words:
Report of injury received whilst on duty, whilst travelling to or from duty, or whilst participating in organised police sport.
11 The prescribed form remained in force until 1 September 1995: Hazlewood, at [109] per Staff J. In the present circumstances, the appellant by that date had already resigned from the NSW Police Force (on 5 March 1992). He was therefore required to notify an injury under s 10B(2), "in or to the effect of the form in Schedule 3", of the 1984 Regulation.
12 There was no issue during the proceedings that the appellant had not notified the Commissioner of Police of an injury in the form prescribed in Schedule 3 within the timeframe required by s 10B(2)(a), that is, before the appellant's resignation and within six months of receiving the injury (which caused his infirmity of body or mind). There was no evidence that the appellant made any formal notification to any person in authority, either in the prescribed form or otherwise, of any psychiatric injury during his period of service.
13 It would appear that strict compliance with the prescribed form may not be necessary but that substantial compliance is required. Support for this proposition may be found in the wording of s 10B(2)(a1) and also clause 6 of the 1984 Regulation which requires that notification of an injury under s 10B(2)(a) shall be, "in or to the effect" of the form in Schedule 3. Further support for the proposition may be found in the judgment of Boland J, President, in Hazlewood:
[46] The appellant conceded that strict compliance with the form was not required: s 80 of the Interpretation Act 1987. All that is required is substantial compliance.
[47] There was no compliance with Schedule 3 by the respondent in respect of his notification in respect of alcohol dependence, depression and paranoid personality traits, yet notification was accepted by the Police Commissioner and, in turn, STC. If STC were to seek fresh advice, as proposed above, and it was accepted there was notification of an injury, there could be no secondary objection based on the form of notification. The appellant should not approbate and reprobate: Express Newspapers PLC v News (UK) Ltd [1990] 1 WLR 1320 at 1329. It could not, on the one hand, accept the requirements as to the form of notification were met in respect of injuries causing one set of infirmities and, on the other hand, deny notification was not in the proper form in respect of any injury causing PTSD.
14 In Hazlewood, the respondent, Mr Hazlewood, made an application under s 10B(2) for an increase in his pension. The application followed the respondent's medical discharge from the NSW Police Force some three years before. The respondent's medical discharge had proceeded upon an acceptance by the Commissioner of Police of various medical conditions suffered by the respondent, which included depression. In his application for medical discharge, the respondent had stated that his depression was caused by alcohol-related problems. His subsequent application raised for the first time a new medical condition, namely PTSD. In issue in Hazlewood was whether the injury which caused the medical condition (PTSD) had been notified to the Commissioner of Police prior to the respondent's discharge. In finding that there had been no requisite notification, Staff J said:
[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.
15 It follows from the foregoing remarks of Staff J that advice given to the Commissioner of Police of a traumatic event experienced in the course of police duties, without further advice of an injury (such as depression), which resulted from, or was otherwise connected to, that event will not constitute sufficient notification for the purposes of s 10B(2).
16 To similar effect, Boland J, President, said:
[42] In my opinion, on the evidence before Marks J, Mr Hazlewood's experiences in the police force were traumatic; they produced trauma, that is, a psychic injury such as depression or PTSD. Depression was accepted by the Commissioner, and in turn by STC, as having been notified as an injury. However, the finding by Marks J that traumatic stressor events be regarded as injuries for the purpose of s 10B(2) cannot be sustained. It does not necessarily follow that a person exposed to a traumatic stressor event will suffer trauma in the form of a psychic injury.
[43] In other words, although Mr Hazlewood was exposed to traumatic stressor events and as a consequence suffered psychic injuries including PTSD, he failed to recognise, or have diagnosed, that injury and therefore failed to notify it to the Police Commissioner. Unfairly, I consider, he is now deprived of being provided with the opportunity of having STC certify his incapacity caused by PTSD. However, simply because a police officer is exposed to a traumatic stressor event cannot, of itself, be regarded as an injury unless it can be demonstrated the event resulted in actual injury, usually of a psychic nature. Otherwise, police officers who, because of the nature of their work, regularly witness traumatic stressor events, would be regarded as suffering an injury each time such an event occurred.
Factual background to the appeal
17 What must be considered on the present appeal is whether the appellant notified the Commissioner of Police in accordance with the statutory requirements. This consideration requires some preliminary examination of the appellant's background while he was a serving member of the NSW Police Force.
18 The appellant, after joining the Police Force (he graduated on 5 March 1982), was stationed at Phillip Street, "The Rocks", in Sydney. He described the station as an unsuitable place for a new recruit. According to his account, many police at the station had been transferred there for disciplinary reasons. Theft, drunkenness, bribery, brutality and other forms of inappropriate behaviour, he said, were commonplace within the ranks. The appellant's induction included visits to the Glebe Morgue in order to attend post-mortem examinations. Until then he had never seen a dead body. He described his experiences there as "mind altering". Nevertheless, he said that his time at Phillip Street Station passed, "mainly without incident".
19 He returned to the Police Academy and following his successful completion of secondary training was transferred to Coffs Harbour Police Station in April 1983. He said he found working there, "extremely stressful". He sustained a number of serious injuries, including a lower thoracic back injury and ruptured ligaments in his left thumb, this latter injury having occurred during the arrest of a violent offender.
20 The appellant also attended numerous incidents where people had died in horrific circumstances. These incidents also necessitated the appellant's presence at the local morgue during the post-mortem examinations. He found post-mortem examinations a distressing experience. He described one examination of a man who drowned as, "removing the lungs from the body and slicing them on the table like a loaf of bread to see if they contained water. I sometimes think of that when I slice bread.". Another examination of a dead woman in her forties reminded the appellant of his mother who had died when he was 18. He said that upon seeing the deceased woman's body, which lay open on the table, he, "... could not help but envisage my own mother in the same position".
21 His repeated exposure to violent deaths began to result in some unusual behaviour. On his way to a house where a man was found hanging in the shed he saw a handwritten note which commenced with the words, "Don't go down to the shed today." He walked quietly towards the shed singing a variation of "Teddy Bears Picnic".