Shane Bennett v SAS Trustee Corporation

Police Regulation (Superannuation) Act 1906 LEGISLATION CITED: Police Superannuation Regulation 1984 Police Superannuation Regulation 1995 Superannuation Administration Act 1996

CASES CITED: SAS Trustee Corporation v Hazlewood [2009] NSWIRComm 157

HEARING DATES: 16 December 2008; 13 October 2009; Written Submissions: 11 November 2009; 17 November 2009

Mr I Latham of counsel (Appellant) Baker & Edmunds Solicitors (Mr T Edmunds) LEGAL REPRESENTATIVES: Mr Ower of counsel (Respondent) SAS Trustee Corporation (Mr R Blume)

Application by Shane Bennett to appeal against the decision of the SAS Trustee Corporation given on 12 February 2008

1 This is a superannuation appeal instituted by Shane Bennett (the appellant) against the SAS Trustee Corporation (the respondent) under s 88 of the Superannuation Administration Act 1996. 2 The appellant resigned from the Police Force of New South Wales on 7 March 1992. At some undisclosed time, but several years after his resignation, the appellant applied under the Police Regulation (Superannuation) Act 1906 (PRS Act) for a certificate of incapacity. On 17 October 2007, he was advised that the Chief Executive Officer of the respondent had determined that he had not notified the Commissioner of Police prior to his resignation and within six months of receiving the injury which he claimed was caused by the subject infirmity. The Chief Executive Officer's determination was confirmed by the SAS Trustee Corporation Disputes Committee (STC Disputes Committee) on 12 February 2008. 3 On 10 January 2007, the respondent wrote to the Medical Discharge Co-ordinator, NSW Police, advising it that the appellant had applied for a certificate of incapacity under s 10B(2) of the PRS Act on the grounds that he was suffering from "chronic post traumatic stress disorder (PTSD), major depression, general anxiety, chronic alcohol dependence, and gambling disorder", as at the date of his resignation. The letter explained that in order for the appellant's application to proceed, it must be determined if the Commissioner of Police was notified of the appellant's injury claimed, prior to his medical discharge and within six months of the injury (or injuries) occurring. The letter sought advice from the Commissioner of Police as to whether the NSW Police accepted that the Commissioner of Police had been informed of the claimed infirmity, and if so, to forward any relevant documentation, including any medical information. A second letter from the respondent to the Medical Discharge Co-ordinator, dated 24 January 2007, sought further information as to whether the Medical Discharge Co-ordinator held any relevant file documents related to any claims made by the appellant for workers compensation. 4 On 15 February 2007, W Banning, on behalf of the Medical Discharge Co-ordinator, wrote to the respondent advising it in the following terms: A check of the former member's medical file has revealed NO record/notation for a "stress related condition, alcohol dependence or gambling disorder". Also, there is NO record of the former/member lodging a claim for liability with the Workers Compensation Unit. Accordingly, the NSW Police does not accept that the former officer has complied with the provisions of the Act, in that, he notified the Commissioner prior to his resignation and within 6 months of the injury occurring. Further to your letter dated 24 January 2007, there was NO report on the former member's medical file from Dr Robertson, consultant psychiatrist, dated 7 March 2002 via Stacks the Law Firm. 5 The principal issue on the appeal was whether the appellant had "notified" the Commissioner of Police in accordance with the relevant statutory provisions. Relevant statutory provisions 6 The relevant statutory provision (in force at the time of the appellant's resignation in 1992) was s 10B(2) of the PRS Act. The section provided: (2) an annual superannuation allowance shall 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, (a1) where the regulations so require, the notification was in or to the effect of the prescribed form, and (b) 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 discharging the duties of the member's office at the time of the member's resignation or retirement. 7 In SAS Trustee Corporation v Hazlewood [2009] NSWIRComm 157, Boland J, President observed that a grant of an annual superannuation allowance under s 10B(2) required three conditions to be met:

[4] Section 10B(2) is the relevant provision at the centre of the controversy. It provides that there are three conditions that must be met before a former member of the police force who resigned or retired may receive an annual superannuation allowance or gratuity under s 10. The first condition is that the former member must have notified the Commissioner of Police before the member's resignation or retirement and within six months of receiving the injury which has caused the member's infirmity of body or mind, of that injury. The second condition is that if the regulations so require, the notification was in the prescribed form. The third condition is that 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 (that is the infirmity referred to in s 10B(2)(a)), of personally exercising the functions of a police officer at the time of the member's resignation or retirement.

[5] Section 10B(3) places a responsibility on the Police Commissioner. Where there has been certification, relevantly under s 10B(2), the Commissioner is required to decide whether or not the infirmity to which the certificate relates was caused by the former member having been hurt on duty when he or she was a member of the police force and the date or dates on which the former member was hurt on duty. Additionally, the Commissioner is required to give the former member written notification of the decision. [6] Thus, under the first condition in s 10B(2), before it may certify the former member's incapacity due to an infirmity of body or mind, STC is required to satisfy itself that notification of the injury that the former member claimed as having caused the infirmity has been provided by the former member to the Police Commissioner within the prescribed time. Presumably, that would require STC to make inquiries of the Commissioner to ascertain whether the member notified the Commissioner in accordance with s 10B(2)(a) of the injury that was claimed to have caused the infirmity. That is what appears to have been done in respect of Mr Hazlewood.

[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".

22 At about the same time he experienced trouble sleeping and keeping down his food. He had constant tightness in the chest and feelings of "butterflies in the belly" which he attempted to relieve by exercise. He saw a Doctor Bloomfield about his high blood pressure. 23 He described the station at Coffs Harbour as the busiest station in the State based on a workload to police ratio. His description has been corroborated by other police officers who were stationed there during the same period. According to Ian Keith Hodges, a retired police sergeant who was stationed at Coffs Harbour from 1977, the station in 1977 had only 16 police officers. When he left in 2000, there were 106 police officers. This was an indication he said of the growth of the town which he described as "expanding wildly" to a population of 50,000 and twice as many during the holiday seasons. He said Coffs Harbour, "was a tough town to police and we were always understaffed and faced with stressful and disturbing working conditions". 24 According to the appellant, counselling following traumatic events was non-existent at that time. Serious incidents were almost always followed by a drinking binge. This state of affairs was largely corroborated by a number of other police officers who served at Coffs Harbour at the same time as the appellant. Mr Hodges said the only way of coping with a stressful event, "was to go to the pub or the club with your associates and talk your way through it over a couple of beers". Beric Shaun Rippon who retired medically unfit at the rank of Senior Constable and was stationed at Coffs Harbour from 1986 until 1998 said: It was common practice to have a drink together after most busy afternoon shifts and a bit of a talk. It was always the case that you pretended to treat bad things not too seriously and often made very black jokes about dead and damaged people. 25 After attending a plane crash in which a close friend died, the appellant experienced a worsening of his problems. He visited Dr Bloomfield who discovered that his blood pressure was almost 200/130. An ECG failed to detect any health problems. He took extended leave from the Police Force and his blood pressure went down. He returned to the Police Force several months later. Shortly after his blood pressure went up again. He again regularly attended horrific incidents involving violent deaths. In November 1988, staff shortages saw him in charge of the 11pm to 7.30am shift. Constant attendances at violent incidents and horrific motor vehicle accidents left him mentally exhausted. 26 On 27 March 1989, the appellant met a close friend, Ken Orr, at a local club. He described Mr Orr as the fittest man he had ever met. The following evening, Mr Orr collapsed and died while training at a local football club. Later he was directed to attend a post-mortem examination. He was unaware at that time that Mr Orr's body was the subject of the autopsy. He walked into the examination room and was confronted with the sight of Mr Orr's dead body with the skull removed. Several weeks later a close friend and colleague was shot while on duty and died some days later from the gunshot wounds. At about the same time, another friend and colleague was injured in a motorcycle accident. The appellant visited him in hospital and noted that he still wore his helmet. The appellant realised later that the helmet was holding his friend's shattered skull in place. His friend died shortly after when the machines were turned off. At about the same time two friends and colleagues of the appellant were killed in a motor vehicle accident. 27 The appellant said by that time his health had become a serious issue. He did not however speak to anyone about his deteriorating health, not even his fiancée. Instead, he began applying for transfers to smaller stations. He was also being treated by Dr Bloomfield for his blood pressure and stomach problems. The appellant did tell his immediate supervisor at Coffs Harbour, Jan Eding, that Coffs Harbour was "getting to him" and he wanted a break from the workload. Mr Eding, who at that time was a Detective Senior Sergeant, recalled making arrangements to place the appellant on "summonses and warrants" in order to take the pressure off the appellant. Mr Eding said that the appellant, "showed signs of physical distress". According to Mr Eding, he cautioned the appellant against taking a transfer to a small police station at Gravesend. Mr Eding said that going directly from a busy environment to a situation where there was hardly any police work did not always work. He urged the appellant to re-think the transfer but did not discuss the matter further with him. 28 On 2 August 1989, the appellant transferred to Gravesend, about 55 kilometres out of Moree. He said he suddenly had nothing to do and his, "body seemed to turn upon itself". He was ill after every meal and had chronic stomach cramps and "butterflies in the belly". These symptoms only eased after he consumed a large quantity of beer. He also experienced tightness and chest pain which was always accompanied by visions of Mr Orr. He could not sleep and experienced severe knotting in the stomach. He saw a general practitioner who experimented with different blood pressure medications. 29 In early 1990, while on his honeymoon, he experienced a sharp pain in his chest and pins and needles in his fingertips and lips. His wife drove him to a doctor's surgery where he was advised he was not having a heart attack. Shortly after, while on duty, he was driving to Inverell in the company of Lawrence John Smith, the sector supervisor in charge of the Gravesend patrol. The appellant said that he could not continue driving because he suffered, "a second severe hypertensive incident". Mr Smith drove him to hospital. Mr Smith also recalled the incident. He said the appellant started breathing heavily and then told him he had chest pains and thought he was having a heart attack. At the hospital, Mr Smith said a nurse informed him that the appellant had shown a very high blood pressure reading. According to the appellant, he underwent a number of tests in the following months but there was no indication of stomach ulcers or other problems. 30 Mr Smith said that the appellant told him he had fears that he might have an attack while he was patrolling alone in the police car in an isolated area with no immediate help available. With regard to the incident witnessed by Mr Smith, Mr Smith said he did not report it because, "it was not a matter of hurt on duty". In his statement, Mr Smith also said: I did not report the incident to senior staff. I left the matter in Shane's hands. I must say that although Shane was a very competent police officer he did strike me as being a bit nervous. I suspected that was the cause of his health problems. 31 By the end of 1991, the appellant said he had "had enough" of feeling constantly "stressed out" and his "associated health problems". He tendered his resignation effective from 5 March 1992. At that time he did not recall nominating a specific reason for leaving. He did not cite stress or an inability to cope as contributory factors because, he said, they would have been met with, "snide comments" and "ridicule", and, "would have been humiliating". 32 His resignation was not accompanied by an improvement in his symptoms. He continued to experience hot flushes, hypertension, sleeplessness and high blood pressure. 33 On 27 March 2002, he saw a psychiatrist, Dr Michael Robertson. Dr Robertson took a detailed history from the appellant and prepared a report for Stacks the Law Firm. The reason for the preparation of the report is not stated in the body of the report, although Dr Robertson does state that he read the Code of Conduct for Expert Witnesses as set out by the rules of the District Court, which suggests that the report was prepared for the purpose of court proceedings. 34 Dr Robertson diagnosed symptoms of PTSD "of significant clinical severity". He opined that the appellant's psychiatric problems, "relate to a series of traumatic stressors ... suffered while serving as a police officer between 1981 and 1992, but in particular, the period between May 1987 and his resignation from the police service in 1992". Dr Robertson concluded that the appellant, "has suffered from severe PTSD symptoms for at least the last decade and a half without any adequate treatment". 35 Dr Robertson's diagnosis would place the appellant's PTSD as having manifested as early as 1987 during the period he was stationed at Coffs Harbour, and as primarily relating (or being connected to) a series of traumatic stressors experienced by the appellant while a serving member of the Police Force. 36 On 19 September 2006, the appellant saw another psychiatrist, Dr R D Moorthy. Dr Moorthy also took a detailed history from the appellant and in addition conducted a number of tests utilising criteria for a diagnosis of PTSD under the DSM IV Classification of the American Psychiatric Association. Dr Moorthy's diagnosis and conclusions were the following: Nature of conditions suffered: · Chronic post traumatic stress disorder · Major depression · Generalised anxiety disorder · Chronic alcohol dependence · Gambling disorder Causation: From all available evidence his experience as a police officer appears to be the only causative factor for his ailments. Capacity to perform police duties at the time of resignation in 1992: As described earlier from the history obtained and the clinical evaluation one has to conclude that he was totally and permanently incapacitated to continue to perform as a police officer at the time of his resignation. 37 Dr Moorthy's conclusions were qualified, however, in cross-examination on the appeal. The relevant questions and his responses are reproduced below: Q. Assuming Mr Bennett didn't have intrusive thoughts whilst he was in the police force that he can recollect; and assuming that he didn't have nightmares whilst he was in the police force; and assuming that he didn't have any avoidance behaviour then it would be likely that he wasn't suffering from PTSD whilst in the police force. Isn't that right? A. I beg to differ sir. I saw him many years after he left the police force and when I saw the cluster of symptoms that he presented, and the disability to which that he suffered, I was unable to elicit any other contributory factor in his life that could have produced a cluster of post traumatic symptoms that come from the specific experience of being traumatised. Trauma is an experience outside the normal, it doesn't have to be physical injury. So my clinical information was there was nothing in his history to show as to why he would suffer such serious PTSD, except for what he might have gone through in the police force. Again that's my observation. Q. That wasn't quite answering my question, Dr Moorthy. What I was getting at is this. You were seeing him in 2006? A. Yes. Q. He complains of these symptoms? A. Yes. Q. And you diagnosed PTSD? Q. I'm not questioning you about whether your opinion as at 2006 is correct. I'm questioning you about the assumption you made at the end of your report that you say as at the time of his resignation he was totally, permanently, incapacitated for his police duties. Now I assume by that you are saying he was incapacitated because of PTSD? A. Yes sir. Q. I put to you the assumption that the constellation of symptoms that you saw in 2006 weren't necessarily there in 1992. Now that surely must make a difference to your opinion, would it not? A. I'm not sure whether they existed, yes sir, you are right. My clinical opinion was based on what I saw at the time. Submissions on the appeal 38 The appellant submitted that the prescribed form under Schedule 3 is clearly designed to isolate the time, nature and treatment of injuries, and that all these details were known by Mr Smith when he witnessed the appellant experiencing chest pains while on duty in the car en route to Inverell. In addition, the appellant relied on Mr Eding's observations that the appellant showed signs of physical distress, as well as his conduct in making frequent requests for transfers. Accordingly, the appellant submitted that the respective knowledge of Mr Smith and Mr Eding should be imputed to the Commissioner of Police and that this imputed knowledge could, in turn, constitute sufficient notification for the purposes of compliance with the relevant statutory provisions. It followed, according to the appellant that the Commissioner of Police either did know, or should have known, the time, nature and treatment (or lack thereof) of his injuries. 39 The respondent submitted that in circumstances where the Commissioner of Police has advised it in good faith that no notice has been given within the meaning of s 10B(2) of the PRS Act, the respondent must rely upon that advice and cannot unilaterally override it. Such advice was forthcoming from the Commissioner of Police in the form of the letter of 15 February 2007 from the Medical Discharge Co-ordinator. Accordingly, the respondent was bound by that advice. 40 The respondent also submitted that "substantial compliance" with the prescribed form of notice would be sufficient, but in the present matter there is no written record of any psychiatric injury suffered by the appellant (at the relevant time). The casual observations of various officers to the effect that the appellant suffered indeterminate physical symptoms on some isolated occasions falls well short of the requisite standard. Even if, according to the respondent, knowledge could be imputed to the Commissioner of Police, it is not knowledge of psychiatric injury as a consequence of something which happened while the appellant was on duty. Conclusion

41 Given the state of the evidence on the issue of notification to the Commissioner of Police of an injury, this Court finds itself in agreement with the respondent's submission. Mr Smith witnessed the appellant experiencing chest pains. He formed the view, for whatever reason, that the incident did not amount to a "hurt on duty" incident. He did not report the incident to senior staff. Mr Eding observed that the appellant, "showed signs of physical distress". Neither officer sought to connect the appellant's symptoms to a traumatic stressor event resulting from a work-related incident, or regarded the symptoms as manifestations of an injury, either physical or psychological. The appellant never reported to any officers, or officers of sufficient seniority, that he had suffered any symptoms, or psychological injury while performing his duties at any stage, at or prior to his resignation. There can be no doubt, in my view, that the appellant was exposed on a consistent basis to a number of horrific incidents which traumatised him while he was a serving member of the NSW Police Force. The only evidence, however, of psychological injury and its connection to traumatic stressor events experienced in the course of his police duties was provided by his two treating psychiatrists both of whom he did not visit until after his resignation. 42 The general observations of the appellant's supervisors that he showed signs of physical distress and was suffering from severe chest pains cannot, without more, constitute notification of an injury for the purposes of s 10B(2). Mere knowledge on the part of the supervisors of physical discomfort and pain, even if that knowledge could be imputed to the Commissioner of Police, cannot amount to compliance with the requirements for notification of an injury under s 10B(2). 43 In Hazlewood, Walton J, Vice-President, observed (at [51]) that a claim for an annual superannuation allowance under s 10B of the PRS Act will fail if the Commissioner of Police bona fide certifies that the claimant has not provided the requisite notice of having received the injury that is claimed to have caused the claimant's infirmity. In the present proceedings, bona fide advice (in the letter of 15 February 2007 from the Medical Discharge Co-ordinator) was forwarded to the respondent that the Commissioner of Police did not accept that the appellant had provided the requisite notification prior to his resignation and within six months of "the injury" occurring. 44 For the foregoing reasons the appeal must be dismissed.

45 The Court makes the following orders: (1) The appeal is dismissed.

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.