Compensation Court of New South Wales CITATION : Thatcher v Commissioner of Police [2002] NSWCC 26 PARTIES : Gary Ian Thatcher Commissioner of Police MATTER NUMBER(S) : 2346 of 2001 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 8/2/02, 4/4/02, 5/4/02, 11/4/02, 12/4/02 EX TEMPORE JUDGMENT DATE : 04/12/2002 FOR APPLICANT:Mr T M Ower instructed by Walter Madden Jenkins. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M A J Daley instructed by Court & Legal Services - NSW Police Service JUDGMENT: 1. This is an appeal by Gary Ian Thatcher ("the appellant") brought pursuant to section 21 of the Police Regulation (Superannuation) Act 1906 ("the Act") against a decision of the Commissioner of Police ("the respondent") made on 2 March 2001, in which as is evidenced by the certificate embodying the decision which is Exhibit A before me, the Commissioner by his delegate determined in terms of section 10B(3)(a) of the Act that the suffering of the infirmity of "anxiety disorder with anxiety and depression" by the appellant as certified in the certificate of the Police Superannuation Advisory Committee ("PSAC") dated 28 February 2001 was not caused by the appellant being hurt on duty. Consequent upon that certificate, the appellant was medically retired from the Police Force. 2. At the outset I should thank counsel for their helpful addresses, which have enabled me to deliver an ex tempore judgment today in an otherwise difficult case. 3. The phrase "hurt on duty" in s 10B(3)(a) is defined in section 1(2) of the Act as "injured in such circumstances as would, if he were a worker within the meaning of the Workers Compensation Act 1987, entitle him to compensation under that Act." The inquiry mandated in the appeal is therefore whether Mr Thatcher suffered injury while a member of the Police Force which would, if he were a worker within the meaning of the Workers Compensation Act 1987, have entitled him to compensation under that Act. 4. Shortly defined, therefore, the issues are firstly injury within the meaning of the Workers Compensation Act and secondly the nexus or causal connection if any between such injury and the infirmity certified to by the certificate of PSAC abovementioned and thirdly the operation of ss 9A and 11A of the Workers Compensation Act, issues also flagged by Mr Daley for the respondent. Of course these sections affect the right to recover "compensation" within s 10B(3)(a) of the Act, and consequently, if they apply, would lead to a finding that a Police Force member has not been "hurt on duty", and the contrary is not argued by Mr Ower for the appellant. 5. Of course I am bound by the PSAC certificate and bound therefore to assume that the appellant suffers the infirmity specified in it, as is established by Saad v Commissioner of Police (1995) 12 NSWCCR 70 [C.A.] and the cases which have followed it, and I shall of course make that assumption. No contrary submission indeed was made by the respondent, as I understood Mr Daley in addresses. This means that the proper diagnosis of the appellant's condition and the fact that it prevents his performance of the duties of his former office in the Police Force is not in issue on this appeal. 6. The appellant gave evidence and I formed a mixed view of him. In essentials, he struck me as a witness of truth. He did not appear to me to exaggerate his condition unduly. On the other hand, as is commonly the case, I have to say, in appeals of this kind, he was astute to blame his condition entirely on events which had occurred during his police service and to minimise other events in the course of his life, often occurring concurrently with his police service, which were however private matters and unrelated to it. I am unsurprised by this stance on his part, which is if anything the usual one in appeals of this kind, as I have already said, but it means that I must scrutinise his evidence with care against documentary and other evidence available from the time various events are alleged by him to have happened, in order to determine what in fact occurred on the balance of probabilities, and I have of course done so. In some material matters, I have not been disposed to accept the appellant's version of events, as these reasons will disclose, but in others I have accepted it. I think it is appropriate to say that except where I indicate to the contrary, I accept the appellant's evidence on all relevant issues. 7. The appellant's date of birth curiously was not given in his evidence. However Exhibit F which is a report of a Mr J Freestone, clinical psychologist, gives that date as being 11 March 1958. It was nowhere suggested that this date is wrong and I shall assume it is correct. The appellant was sworn in as a member of the Police Force in April 1977. He said and I accept that he was fit and well before then. That remained the situation, he said, until he was transferred to Kogarah in 1994, and he experienced no psychiatric or psychological problem before then. 8. In April 1994, the appellant experienced what was suggested by his counsel in a question preceding his evidence to be a rather bizarre incident involving a person named Wylie. Briefly, in circumstances in which the appellant was not on duty, he went to lunch socially with a woman named Lynne Lancaster with whom he had formed an association, she being apparently a barmaid at a local hotel, and one Gary Norman Wylie. Wylie was a social acquaintance of the appellant and a former policeman. 9. While the appellant was driving Wylie and Ms Lancaster home from the lunch in question, at which it later emerged that a good deal of alcohol was drunk, it would appear that Wylie suddenly and without warning stabbed Ms Lancaster, following which a struggle ensued in which, the appellant said, he wrested a knife from Wylie, got him out of the car and then got back in and drove Ms Lancaster to hospital. He had apparently intended to drop Wylie off at Caringbah, the lunch having been at Cronulla. He was then intending to drive home to Wollongong. 10. The appellant further said that Wylie had been a Probationary Constable at Campsie when he had met him, and that he had eventually left the Police Force after about two years, but that he and Wylie remained friends after that day. He was out of the Force at the time of the occurrence in April 1994. 11. After April 1994, the appellant was involved in various Internal Affairs investigations, being interviewed then by officers from the Internal Affairs Section of the Police Service, he thought on at least five or six occasions. Those interviews were the result of various complaints made by Wylie. At this time, a record of interview between the appellant and police from Internal Affairs, if I may so describe them, was tendered and became Exhibit K. Briefly describing its contents, it is a record of an interview between a Senior Constable Robert Waugh and the appellant occurring on 11 August 1995 at Kogarah Police Station, and it deals with allegations apparently made by Wylie that the appellant was in improper possession of a shotgun which he had shortened after it came into his possession. The appellant denied the matters that were put to him about this and reflected, as it turned out later rightly, on Wylie's motives in making these allegations. 12. The appellant sought medical treatment, he thought from a doctor other than his usual general practitioner, Dr Turner (although his evidence appears to be incorrect in this regard, as I shall later demonstrate) and had two weeks off work immediately following the "Wylie incident" but seems to have continued work thereafter until he was transferred to Corrimal in 1996. Up to the end of 1996, he had had two further interviews with Internal Affairs. Exhibit L was tendered at that time, it being two further records of interview occurring in 1996 between the appellant and police in Internal Affairs. Shortly, the interviews were both conducted between the appellant and one Inspector Moore on Monday 11 January 1999 at Bulli. 13. The first Record of Interview related to the circumstances of the appellant's apprehension of Wylie following his stabbing Ms Lancaster, it being suggested by Wylie that the appellant had attempted to kill him and had held a knife to his throat amongst other things. The second Record of Interview concerns an allegation again by Wylie that the appellant improperly arranged for the purchase of bricks improperly obtained by Wylie from a firm named "Boral Bricks" on behalf of one Rex Griffiths. Materially for present purposes, all that matters is that the appellant denied all these allegations in both records of interview and reflected on Wylie's motives in making them, again as it turns out rightly, as I shall reveal. 14. Apparently some time after 1986 Corrimal Police Station closed down and the appellant went to Wollongong to work. Between 1996 and 1998, he had no contact with Internal Affairs and continued his normal duties. In July or August 1998, however, he was required to attend the office of a Superintendent Baillie who was the commanding officer at Wollongong. As instructed, the appellant went to Superintendent Baillie's office at about this time, and his account of the interview was that Superintendent Baillie showed him a document which turned out to be what he called a "S181D Notice of Intention". He understood that to be a document which indicated that the Commissioner lacked confidence in the officer concerned. It is sufficient to say, I think, that the parties agreed that the effect of such a document was that the officer concerned would be dismissed from the Police Force. 15. The appellant went on to say that when he said to Superintendent Baillie"what's this all about?", he was simply told by Baillie to read the document through and sign it. He was told, in response to his request, that he could not have a copy of it, but signed it anyway, he said. He said that Superintendent Baillie said "this is in relation to all of the complaints about you" and that he went on to explain to Superintendent Baillie that these complaints were unjust and had not been "sort of substantiated or anything", whereupon, he said, Superintendent Baillie said to him "well, you have been singled out for this and if you get any further complaints you're facing dismissal". He said that was "about the extent of it". Although the appellant said he received a s 181D Notice at the interview, this evidence is more consistent with the appellant being told then that he was not facing dismissal, which as I understand the evidence is the effect of a s181D Notice. As I shall later indicate, I think the appellant did receive a warning in these approximate terms from Baillie, and this is consistent with Baillie's evidence (see later) that a s181D Notice was not issued or handed to the appellant at this time, though not with Baillie's later evidence that he would not have given such a warning. 16. As I shall reveal, Superintendent Baillie gives a completely different account of this interview, supported by documentation, and I have come to the conclusion that the appellant's evidence is incorrect as to being handed a s181D Notice at that time. As invited by Mr Daley, counsel for the respondent, in addresses I have formed the view that this occurred not because the appellant was consciously trying to mislead me by giving knowingly untrue evidence, but rather because he has become somewhat psychologically preoccupied with various events which have occurred to him in the Police Force, and has recalled them in a way which most suits the view that he has been persecuted and singled out in a way that is unfair. I do have some criticisms of the way he was treated, which I shall express later, but I have concluded that the principal basis on which he is entitled to succeed in his appeal is the effect of a later event which does not relate, at least directly, to any allegations of misconduct on the appellant's part, namely his attendance at the scene of the suicide of a fellow police officer. The appellant has succeeded in his appeal partly because his evidence that he attended the suicide on this occasion and was required to stay at the scene for a considerable length of time alone is not in dispute, although the precise time when he attended on that occasion is. I shall deal with that matter later, but the point I make at this stage is that I do not rely entirely or even mainly on the appellant's credit in determining that it is the effect of the suicide more than anything else that has led to the infirmity from which the appellant suffers. 17. Turning to the interview with Superintendent Baillie, the appellant then went home and told his wife what had occurred and he said in evidence that he was "just devastated" by it. He continued working for a couple of months, but his work practices changed in the sense that when he was "out on the truck", as he put it, he avoided trouble and let other officers deal with arresting people and things of that kind where he could, in order to avoid complaints being made about him. 18. The appellant then related that on 14 September 1998 he had to attend the suicide scene to which I have just referred. It was at Darkes Forest on the Old Princes Highway between Bulli Tops and Helensburgh. He did not know the victim. He thought he attended at about 1.00 to 1.30 pm in the afternoon, but as I shall later indicate, that evidence appears incorrect. He said when he arrived at the scene (and I gather he was the first policeman to do so), there was a car parked just off the road and he went to it and looked inside it and there was a note there, obviously written by a policeman. Obviously there was also a body in the car. He said that he stayed with the body and was "not allowed into the bush until the Police Dog Squad arrived", by which he later explained he meant that he was not allowed to disturb the scene until police dogs arrived, in order not to interfere with their scent should they be required to search for something. 19. The appellant said that the detectives had to be called in, and "the bosses and everyone", and that afterwards he had to remain with the body and guard the crime scene until the completion of the investigation, which was at about 11 pm that night. He said he was the only person doing this. He said it upset him because in the "young fellow's note", as he put it, reference was made to receiving a "181D Notice" which the appellant called a "Suspension Notice - Notice of Intention", the same as he said he had received. As I shall later indicate, it is my view on the probabilities that no such Notice was ever issued in relation to the appellant, nor did the appellant receive one. The appellant reiterated that he did not know the victim. He identified Superintendent Baillie as one of those who attended the scene. He said that at 11 pm the body was removed, and he accompanied it back to the morgue at Wollongong and then returned to the station to write up his report. He continued on normal duties. He said that at the scene Superintendent Baillie and other regional commanders got police together and told them they would receive counselling within the next couple of days. He said that in fact in the next succeeding days there was no counselling, and he was a bit upset by it all and went to see one of the peer support advisers at Wollongong Police Station, a Senior Constable Allman, whom he found to be younger than himself and not much help. 20. Both Superintendent Baillie and another officer, with whose involvement in the present matter I shall shortly deal, an Inspector Tranby, gave evidence, and in passing I asked them questions about the efficiency of what the appellant called "police welfare", who I gather were providing the counselling in question. They both explained that police chaplains were often used, amongst others, and that while they did their best, their resources were often stretched and they did not always arrive as soon as they were required. This seems to me to suggest that the appellant's evidence about not receiving counselling should be accepted and I do so, there being no direct evidence to the contrary. 21. The appellant said that he visited Dr Turner, his family doctor, after the suicide incident, if I may so call it, but that he did not actually cease work until November 1998. He said he worked on for a bit after seeing Senior Constable Allman, and I gather after he saw Dr Turner. He said he had a talk to Dr Turner after seeing Senior Constable Allman about what had occurred, but that he continued on working after that. He said that at that time his mind was racing and that he continually thought about "that young fellow up in the bush and what he had done". He reiterated that he eventually ceased work in November 1998. 22. The appellant said that at that time he was not in what he called "policeman mode", and that far from "backing off" he had gone to the opposite extreme, in that he was angry and losing control and tending to lock people up for anything at all. He said Dr Turner referred him to a Dr Whetton, a psychiatrist, and that he had also received treatment (in part at an earlier time, in fact) from another psychiatrist, a Dr Davies, and from a Ms Grew, who is I gather a counsellor and clinical psychologist. He has not returned to work since November 1998. 23. The appellant then related a home visit by Superintendent Baillie, who was on that occasion accompanied by an Inspector Mick Tranby. The appellant's account of what occurred is that Superintendent Baillie wanted him to come back on what was called a "management enhancement programme". Much dispute occurred in the evidence about whether what was mentioned by Superintendent Baillie to the appellant was a "management enhancement programme" or a "performance enhancement programme", the latter being some kind of disciplinary procedure for officers who have "put a foot wrong", as it were, and the former being a form of enhancement of management skills thought to be possessed by the policeman or woman in question. In view of the fact that the appellant himself nominates a "management enhancement programme" in his own evidence as being what Superintendent Baillie suggested to him seems to me to resolve the matter in favour of that sort of programme being what was suggested. 24. The appellant's claim was that he was very angry at this suggestion because he found it offensive, and that he thought that it was apparently the result of the Internal Affairs complaints that had been made against him. Quite frankly his attitude seems to have been unfounded, because there seems very little doubt that Superintendent Baillie's intention, as indeed he said, was simply to get the appellant back to work and enhance his skills rather than to discipline him in some way. I do not regard that interview in any event as causative in any way of any of the appellant's problems because, as I shall relate, he did not mention it to his treating doctors or psychologists as being a problem, and they did not therefore have the opportunity to assess whether or not the appellant's psychological problems were related in any way to it. 25. The point was taken in addresses by Mr Daley for the respondent that this being a "disease" case, as he put it, s 15 of the Workers Compensation Act applied to deem the date of injury to be the last day of the appellant's police service when his incapacity commenced, and that therefore anything that occurred after that, for example the abovementioned interview with Superintendent Baillie after the appellant stopped work, was irrelevant. That is not something I need to decide, because I have already concluded for reasons just given that this interview did not contribute in any material way to the appellant's ongoing psychological problems. For the same reason, I do not need to consider the application of s11A of the Workers Compensation Act to that interview, it being conceded by Mr Ower, the appellant's counsel, that s11A could in principle apply to that interview, were it otherwise causative of the appellant's problems. 26. What then occurred was that the appellant underwent two further interviews with Internal Affairs, on this occasion at his home, no doubt because he was on sick report. Exhibit M was two Records of Interview, and put shortly, they relate again firstly to an allegation that the appellant stabbed Wylie in the incident involving the wounding of Ms Lancaster and secondly to an allegation that the appellant improperly arranged for the delivery of bricks from "Boral Bricks" obtained by Wylie to a Rex Griffiths. These were of course by this stage old allegations. Again the appellant denied them and rightly, as it turned out, reflected on Wylie's motives in making them. 27. The appellant said, and this was nowhere traversed, that as at January 1999 when these Records of Interview took place, again between the appellant and Inspector Moore, the criminal trial involving the Lancaster stabbing incident had finished and Wylie had been imprisoned. The appellant said that he thought "here we go again" when he was again contacted by Internal Affairs about the above matters in January 1999, and that it was "the same old thing", namely baseless allegations made by Wylie. Again it is my impression that no further psychological damage was done to the appellant by what occurred in these interviews. 28. However, what is of greater significance to my mind is what became Exhibit N, which was a letter signed by the same Inspector Moore to the appellant dated 20 August 1999, which informed the appellant that the alleged stabbing of Wylie and the alleged arrangement for the distribution of stolen building bricks for payment were the subject of a completed investigation, and that the Ombudsman had examined the file and concurred with Inspector Moore's findings, and that as it had been agreed that the complaints were not sustained, no further action was to be taken and that the matters were closed. Further, the appellant was told in the letter that "other complaint issues contained in CIS files 9600342 and 96003434 which had arisen from the same source some time ago and in which you were interviewed, have also been finalised and the files closed." The words "from the same source" apparently meant that the "complaint issues" were allegations also made by Wylie. 29. I find it significant that it was not until the receipt of this letter, well after the criminal trial in which Wylie was imprisoned had been completed, that the appellant was formally told that the allegations against him by Wylie had been laid to rest. What I must examine, if I think that the treatment of the Wylie allegations by the respondent's officers was a substantial contributing factor to the appellant's infirmity, to quote s 9A of the Workers Compensation Act, is whether within s 11A of that Act, the conduct of the persons dealing with the Wylie allegations for the respondent was reasonable, because quite clearly such conduct comes under the heading "discipline" of the appellant within s 11A. I shall deal with that question later. 30. The appellant said that when he read Exhibit N it was a great relief. He was still seeing doctors at that time, and ultimately on 2 February 2001 he was formally retired medically unfit. He thought that it was in fact in March on reflection, and I think he is right, because the certificate, Exhibit A, to which I have referred is dated 2 March 2001. 31. The appellant was then cross-examined skilfully by Mr Daley for the respondent, and I hope that I will be excused if I do not refer to every aspect of that cross-examination, but only those which have particularly affected my determination of the appellant's rights. 32. After a "gate closing" cross-examination in which Mr Daley obtained the appellant's assent to the proposition that there no events in his private life between 1994 and 2 February 2001 (properly 2 March 2001 as I have just said) which reflected on his "hurt on duty claim", the appellant conceded that in fact a number of events of that kind had occurred during that period. The first was that he commenced a relationship a short time after the Lancaster stabbing incident in April 1994 with Ms Lancaster. He denied that it was sexual. No evidence emerged that this was not the truth and I accept that it was. The appellant conceded however that his continued friendship with Ms Lancaster caused his marriage problems with his wife, Sandra. He said Dr Turner referred both himself and his wife to Dr Davies, a psychiatrist, mainly to get Sandra some help. He do not agree that she was having psychiatric problems at this time. The appellant's initial failure to volunteer this visit is one of the things that cause me to approach his evidence with caution. 33. Exhibit 1 was then tendered without objection at that point, and it is a short note to Dr Turner from Dr Gordon Davies, psychiatrist of Wollongong dated 9 September 1994 in which he thanks Dr Turner for referring the appellant and his wife. He says the situation is most unfortunate and says that they will both need counselling. It is consistent with what was put to the appellant, which is that the referral to Dr Davies at that time was principally for marital problems, and I think that was the case. 34. It was put to the appellant that he developed a drinking problem in 1994 and he did not agree. He conceded that he had told Dr Klug, a psychiatrist whom he saw for his own solicitors earlier this year, that he was drinking about 10 or 12 schooners a day, and he agreed that that was the case at the present time, he giving evidence on that occasion on 4 April last. He was asked a number of questions about drinking problems, and the view I form is that in fact he has had a drinking problem of some significance for some time, and certainly before the attendance on the suicide to which I have referred. I may add that Mr Daley never submitted as I understood his address that the drinking problem alone was sufficient reason for the appellant's infirmity, and indeed the medical evidence does not suggest it either. 35. The appellant conceded another event in his private life in cross-examination, which was that in May 1998 unfortunately his son was struck by a motor vehicle, he being 11 years of age at the time. The son was severely injured, and indeed suffered a head injury as a result of which he was in a coma for a few days, during which time I gather there was considerable doubt as to whether he would retain consciousness, although his actual survival may not have been in doubt. I have little doubt that the appellant was considerably upset by this turn of events, which again he did not initially volunteer in cross examination. He conceded also that his son had had considerable problems in rehabilitating himself following this accident, but that he had successfully returned to high school and had come home with awards, and the appellant said that he could not be happier with his son at the present time. 36. The appellant was then taken to a Record of Interview which took place soon after the stabbing incident in 1994, and that became Exhibit 2. It was dated 22 April 1994 and it records an interview between the appellant and a Sergeant J S Clark at Cronulla Police Station. In it the appellant relates what occurred in the stabbing incident. It does not appear to relate in any way to allegations made by Wylie that anything improper was done in relation to his apprehension or otherwise by the appellant, and appears simply to reflect concern on the part of the interviewer that the appellant as a police officer had been involved in an incident of this kind, and requests details of it. It was not suggested by Mr Ower, counsel for the appellant, that it was in any way unreasonable on the part of Internal Affairs to investigate the stabbing incident, nor indeed Wylie's allegations made afterwards about it, or his allegations about possession of an illegal weapon or handling stolen bricks, and I too think that the decision on the part of Internal Affairs to investigate these matters was entirely reasonable, even if, as I think, the delay which attended the appellant's final official "clearing" by the letter which is Exhibit M referred to above was not reasonable conduct on the part of those investigating the matter for the respondent, within s 11A of the Workers Compensation Act. 37. The appellant was then cross-examined about what occurred in the stabbing incident in 1994 and his association with Ms Lancaster and Wylie. He conceded that Wylie was a "bit of a rogue", and that he knew before April 1994 that Wylie had had a couple of stealing offences, but he did not concede that he knew that Wylie had a criminal history of possession of prohibited plants, cultivation of them, and possessing goods in custody and firearms. 38. The appellant conceded that he thought he told those investigating him at different times for Internal Affairs that the allegations by Wylie were made to get a tactical advantage at his criminal trial, and that he was fully aware that they were baseless. He conceded that in a report dated 4 August 1995 to the respondent he so described the complaints; that report became Exhibit 3 at that point without objection, and in it he indeed asserted that the complaints made against him by Wylie were baseless and made in an attempt to discredit him as a Crown witness. 39. In response to the suggestion impliedly put to him that he had improperly associated with Wylie, given his criminal record, the appellant said that he knew not only Wylie but his family and children, and that he kept in contact with him over the years for this reason. However that may be, it does not seem to me that the propriety or otherwise of Wylie's association with the appellant and vice versa is something I need to determine, because of a concession Mr Ower made which is of some significance. This was that the stabbing incident in 1994 occurred outside the course of the appellant's employment, and that it was not relied upon as constituting a contributing factor to the appellant's infirmity but that, as Mr Ower put it, the appellant seemed to suggest that it "set the scene" for his subsequent development of an infirmity by reason of later events. Indeed Mr Ower earlier in the hearing declined an invitation I made to him, in the interests of clarifying what the appellant's case was, to adduce evidence from the appellant of any psychological effects of the stabbing incident in 1994 or of the early Internal Affairs investigation, which occurred fairly shortly after it. That of course does not dispose of the question whether these events in fact had any psychological effect on the appellant, but for reasons already given, and for others which I shall set out later, I do not think they did. 40. The appellant also conceded to Mr Daley that it had been entirely proper for Internal Affairs police to investigate him following both the stabbing incident and the Wylie allegations which followed it. As I have said, I am of the view that it was entirely reasonable within s 11A of the Workers Compensation Act for these investigations to take place, as distinct from the fact that it took until August 1999 to tell the appellant officially that he had been cleared of all allegations, a delay which I do not think reasonable, as I have said, within s 11A. 41. The appellant was then taken to cross-examination to the fact, which he conceded, that he did not see Dr Turner between 1994 and 1998, except on an occasion on 13 July 1997 when he attended complaining of headaches and was referred to a Dr Serisier. That suggests that the 1994 events had little or no psychological effect, at least on an ongoing basis. 42. It was suggested to the appellant, and he agreed, that the alleged issue of a S181D Notice was what "knocked him about", by which I gather he asserted that this was the beginning of his psychological problems, and that is how I understand his evidence in chief in any event, and I think it was the true situation, because the appellant then said that before then there was a gradual build-up of anger and frustration, so I take the alleged issue of the s181D Notice to betoken the beginning of the appellant's psychological upset, on his own evidence. This is of some significance in view of my conclusion that, at best, he completely misunderstood the events of that time. 43. The appellant was then shown a document which it was suggested to him was the paper that he signed at the time he saw Superintendent Baillie in his office in 1998. He denied that that was in fact the document he saw and signed at that time. He was also shown a further document correcting the first document. He was astute to assert that he had seen neither document before. Subsequently they were tendered and became Exhibit 6. The second of the two documents, which is in fact the first in time, bearing a handwritten date of 19 June, which I take it means 19 June 1998, is crucial and is worth quoting in full. It is directed to Superintendent Baillie and it reads: The nomination of Senior Constable Thatcher has been reviewed. The matters raised were not sustained. I have decided there is no utility in further action being taken against Senior Constable Roser regarding this nomination. This matter is now finalised. Any further action for loss of Commissioner's confidence should be initiated by the officer's commander in line with current guidelines and employee management philosophy. 44. It is signed by one Mal Brammer, who is described as "Commander, Internal Affairs". As I have said, the document is dated 19 June and its context would appear to indicate that it was created in 1998. 45. The first document in Exhibit 6 which was marked "MFI 1" at the point in cross-examination to which I am referring was a further letter to Superintendent Baillie correcting the reference to "Roser" in the first document to "Thatcher". It is not otherwise of significance. I shall come to Superintendent Baillie's evidence later, but it sufficient to say that the second document in Exhibit 6 to which I have just referred does not bear the appellant's signature. 46. After denying that he had ever seen either of the documents in Exhibit 6 before, the appellant said that following this interview he took no further action and in particular, in response to some questions I asked him, he said he did not go to the Police Association to attempt to clear his name. He conceded that he engaged solicitors no later than February 1999, and conceded that he still took no action after that point to have the S 181D Notice, which he said he saw and signed, set aside, or in some way changed. I find this state of affairs somewhat curious, and indeed that was the reason for the question I asked of the applicant as to whether or not he went to the Police Association. I shall deal with my ultimate conclusion about what occurred in the interview in Superintendent Baillie's office when dealing with the latter's evidence. 47. The appellant was then taken to his attendance at the suicide scene. He was shown an official report of the incident in question, which without objection became Exhibit 4. That document is of significance in only one respect. It suggests that the existence of the motor vehicle at Darkes Forest was only reported to the Police at 1.22 pm on 14 September 1998. This of course would place the appellant's attendance at the scene at a time after that, and indeed the document suggests that two adult males riding mountain bikes were the first to discover the body of the deceased policeman adjacent to his car, and that this occurred at about 3.30 pm that day. It further says that these people went to a nearby house and told the owner, who then telephoned Wollongong Ambulance at 4.13 pm. This of course would place the likely attendance of the appellant at the scene at a time after that, and it seems to me that the appellant's recollection as to the time of his attendance at the scene being about 1.00 or 1.30pm is very likely unreliable, no suggestion having been made in addresses, as I understood him, by Mr Ower for the appellant that there was any good reason why Exhibit 4 would be inaccurate, created as it was as a contemporaneous record without this particular litigation in view. 48. Indeed the appellant was prepared to concede that he may have arrived at the scene at around 2 o'clock, but it seems to me likely that in fact he did not arrive at the scene until some time after the telephone report was made by the owner of the premises visited by the two mountain bike riders at 4.13 pm to Wollongong Ambulance, although I am unable to place precisely the likely time of such arrival. It is quite likely, I think, to have been relatively shortly after 4.13 pm, allowing for the time likely to be taken for Wollongong Ambulance to report the matter to the Police and for them to respond and call the appellant to the scene. 49. Be that as it may, the appellant's evidence that he was required to remain at the scene from his arrival until 11 pm was not challenged in cross-examination nor by other evidence, and I accept that this scenario is most likely the correct one on the balance of probabilities, which still leaves the appellant at the scene of the suicide for a very considerable time, and for a large part of that time by himself with nothing to do but ponder the events of the day and their possible connection with his own situation, having regard to the conclusion I have already formed, of course, that in fact he did not receive a S 181D notice at the interview with Superintendent Baillie in his office. I have nevertheless formed the view that the appellant was most likely given a warning of some kind by Superintendent Baillie at this time, and that and the latter's imparting to him that he had at one time been considered for a s181D notification was I think enough for him to identify to some degree with the deceased policeman's situation and to be upset thereby. 50. The appellant was then taken to the "enhancement programme" suggested to him by Superintendent Baillie in company with Inspector Tranby at the time of their visit to the appellant's home. I have already said that I do not place any particular significance on what sort of "enhancement programme" was suggested to the appellant at that time because I do not think on his own admission that it had any independent effect on his psychological state. 51. The appellant was then taken to a "hurt on duty claim" dated 22 December 1998 which became Exhibit 5, and some stress was laid in cross-examination on the fact that in that document on page 3 in the second last paragraph, the appellant used these words: My LAC also had a copy of my Internal Affairs record. Imagine my dismay when he told me that the record indicated that all of the allegations made by the person Wylie had been marked `Unsustained' . Why had I not been informed prior to this? It just didn't seem fair. 52. The appellant was evidently then referring to the visit from Superintendent Baillie and Inspector Tranby to which I have referred. 53. It was therefore suggested by Mr Daley to the appellant that as at 22 December 1998 he was fully aware that all outstanding claims or allegations against him had been found unsustained, and he did not agree. He said that in that document he did not refer to any other outstanding allegations against him, because he had allegations going back to 1994 that he had not even heard about. I shall deal with Superintendent Baillie's and Inspector Tranby's account of that interview shortly, but it is sufficient to say that I am of the view that it was not until the appellant received Exhibit N to which I have referred, the letter dated 20 August 1999 from Inspector Moore, that he was made aware that all allegations against him had been officially dropped, if I may so put it, and this is of some significance in the view I form as to the reasonableness of the conduct of those acting for the respondent in relation to the Internal Affairs investigations within s 11A of the Workers Compensation Act. 54. The appellant was then taken to references in Exhibit 5 of various kinds, and in particular to stresses as a result of the District Court trial in which the offender Wylie made "humiliating and degrading accusations", as it was put to the appellant seeking his agreement, in front of his wife, parents and other close friends, and he agreed that these occurred. This simply seemed to me to confirm that matters other than occurrences in the course of his employment had troubled the appellant at this time, contrary to his initial assertions in cross-examination. 55. The appellant was then asked why it was that he had not mentioned anything to various practitioners, in particular Ms Grew, his treating psychologist, about his problems with those allegations, and for that matter, his son's motor vehicle accident, and he was adamant that he had mentioned these matters to Ms Grew, as I understand his evidence. He conceded that he told Ms Grew that a relationship developed with Ms Lancaster, although he never admitted that it was a sexual one, and I have already said I do not conclude that it was. 56. The appellant was re-examined and conceded that at his initial meeting with Superintendent Baillie, he was not sure whether there was a difference between a S 181D Notice being issued and a notification being considered, which frankly by itself casts some doubt on his initial evidence that a S 181D notice was issued, and he said that he was told that when he first saw Superintendent Baillie. I shall deal with that in a moment when dealing with Superintendent Baillie's evidence. 57. The next witness to give evidence was Michael Troy Tranby, currently Chief Inspector of Wollongong Area Local Command, referred to previously in these reasons as "Inspector Tranby". He firstly spoke of his attendance at the suicide scene to which I have referred in September 1998. He referred to a number of steps he took to ensure the welfare of police officers attending at the scene, including the appellant, in order to ensure that they received counselling. He said in response to a question I asked that policemen of his generation, such as the appellant, tended to have a "stiff upper lip" attitude to situations which might provoke emotion. He conceded, again in response to a question I asked, that the Police Welfare Branch did not always turn up exactly when one asked for them. He said police chaplains were often used for this sort of work, and this concession, and the earlier one in relation to policemen of the appellant's and Inspector Tranby's generation often adopting a "stiff upper lip" presentation in response to emotion-producing situations, convinces me that it is more likely than not that the appellant neither sought nor received counselling, as distinct from a peer support interview which he found unsatisfactory, as I have said, after the suicide. Perhaps his reaction to these events might have been less severe, had he received such counselling. I do not know. 58. Inspector Tranby then passed to his attendance with Superintendent Baillie at the appellant's home when an enhancement programme was discussed. He was unsure as to exactly what sort of programme was suggested, as I understand his evidence, but I have already expressed my reasons for thinking that in fact it was a management enhancement programme rather than anything which might have been reasonably construed by the appellant as a punishment. I have already set out also my reasons for concluding that this interview had no separate effect on the appellant's psychological state, and it is therefore unnecessary further to examine Inspector Tranby's evidence in relation to what took place at that interview. 59. However, significantly, in response to another series of questions I asked, Inspector Tranby specifically eschewed any attack on the appellant's integrity which, having regard to his knowledge of the appellant over a number of years, I find of some weight on the general issue of the appellant's credit. 60. The next witness to give evidence was Donald James Baillie, Superintendent of Police, to whom extensive reference has already been made. He referred firstly to the appellant's interview with him in his office, which he dated as being in June 1998; the appellant was unsure as to the exact date and I do not derive any particular significance from the variation between the appellant's evidence and that of Superintendent Baillie as to the date of the interview. However, Superintendent Baillie at that time produced the two documents which I have already discussed and which ultimately became Exhibit 6. The remarkable thing about Superintendent Baillie's evidence was that he did not recall the interview at which he said these documents were shown to the appellant at all, apart from reconstructing it from those documents. However, he was adamant that having looked at the documents, he would not have told the appellant that he was the subject of a S 181D Notice, and he specifically denied that he would have warned the appellant that if he had any further "strikes against him", as it were, he would be either in trouble or dismissed from the Police Force. 61. Superintendent Baillie could not even say that he remembered the particular date of the interview independently other than as a result, he thought, of having had access to Exhibit 6, although he could not recall having had previous access to Exhibit 6 either. He said that other than Exhibit 6, no document relating to the interview he had with the appellant in his office could be found, and in particular no document signed by the appellant could be found. This state of affairs or course inevitably gives rise to considerable suspicion, but on balance and despite that, I am of the view that what Superintendent Baillie produced which eventually became Exhibit 6, namely the two documents to which I have already referred, were in fact the documents placed in front of the applicant at the interview in Superintendent Baillie's office on the probabilities. That being so, the appellant was not told at that time on the probabilities that a S 181D Notice had been issued against him, and indeed it is likely, as Superintendent Baillie thought, that the appellant was in fact then told that no such Notice was to be issued. 62. However that does not end the matter. The wording of the second document, the first in time in Exhibit 6, dated 19 June (probably created in 1998, as I have said) is of significance. It does say under the heading "Nomination of Senior Constable G Thatcher under S 181D provisions" that "the nomination of Senior Constable Thatcher has been reviewed" and that "the matter is reviewed but not sustained". Although it further says that "I have decided there is no utility in further action being taken . . ." and "this matter is now finalised", it goes on to say that "any future action for loss of Commissioner's confidence should be initiated by the officer's commander. . .". It does seem to me that that document carries with it the suggestion of a threat to the appellant should he in future get "out of line", as it were. It seems to me also that that document is not inconsistent with a person in the position of Superintendent Baillie telling the appellant that he would be dismissed, or at the very least, in further trouble if any further complaints were received. 63. The existence of Exhibit 6 and its complete contradiction of the appellant's evidence of having received a S 181D notice at the interview in Superintendent Baillie's office convinces me on the probabilities that no such notice was received, and that the two documents in Exhibit 6 were in fact what was received by the appellant at that time. As I have said, that does not end the matter, and there is an implied threat, as I have said, in the very terms of the second document in Exhibit 6, the first in time, dated 19 June. 64. The precise recollection of the appellant as against the almost non-existent (if not entirely non-existent) recollection of Superintendent Baillie as to what occurred at that time makes it more likely than not in my view the appellant's recollection of having received a threat or warning from Superintendent Baillie along the lines set out above does represent something that in fact happened, even though the warning given by Superintendent Baillie may not have been precisely as the appellant remembers it. That being so, I think there was a basis for some psychological upset in the appellant following that interview. 65. The next part of Superintendent Baillie's evidence related to the suicide in Darkes Forest. He was astute to assert that he did everything he could to ensure that the appellant received counselling following that, but as I have said, he also was prepared to concede when asked about their efficiency that "Police Welfare" were quite often "stretched", and I think from that concession that it is more likely than not that the appellant did not receive counselling following his attendance on the suicide, as was undoubtedly intended by Superintendent Baillie. 66. The remainder of Superintendent Baillie's evidence related to the attendance on the appellant at home with Inspector Tranby, and I have already said why I do not think that that interview contributed to the appellant's ongoing psychological problems, so I do not need to resolve precisely what was said at that time, other than to observe that I believe it did not result in the appellant being formally told that all allegations against him had been formally dropped by Internal Affairs, although there is evidence that the applicant may have been told something informally which suggested that some of them had been dropped at this time. I think, as I have said, that the first time the appellant was officially informed of this was on his receipt of Exhibit N, the letter from the New South Wales Police Service signed by Inspector Moore dated 20 August 1999 which I have already discussed. 67. Superintendent Baillie identified a report he wrote on 3 March 1999, which became Exhibit 7 without objection, notwithstanding that it was a self-serving document. It asserts that the appellant was informed when he saw Superintendent Baillie in his office that no further action was being taken on the S 181D Notification and as I have already said, I conclude that this is so. It denies specifically that the appellant was informed that if any further complaints were received he would almost certainly face dismissal, but as I have already said, Superintendent Baillie when he gave evidence did not have any precise recollection of the interview, and although he said he did not think he would have said that, or anything else to that effect, I think it was more likely than not, given the appellant's precise recollection of what occurred at that interview, that he did. 68. Superintendent Baillie dealt with the home visit with Inspector Tranby in his statement. For reasons already expressed, I do not need to deal with that. He dealt also with the appellant's attendance at the suicide scene and asserted that welfare assistance had been offered, but I have already expressed my reasons for concluding that on the probabilities no such assistance in fact was received by the appellant. 69. Superintendent Baillie was cross-examined by Mr Ower, and again I trust I will be forgiven for not referring to every aspect of it for reasons of space. It is enough to say that he did not resile materially from his evidence in chief, but reiterated that he had no independent recollection of most of the incidents of which he gave evidence and was reconstructing. I have already expressed my views in relation to that, in particular as to whether or not he made a threat or gave a warning of some kind to the appellant on his initial interview in his office. 70. He was re-examined and what became Exhibit 8 was identified by him. It is a short report from a Sergeant Eady of Internal Affairs on the letterhead of the "NSW Police Service" dated 9 February 1999. It confirms that no S 181D Notice was issued. It confirms also that as at its date, all matters raised against the appellant had not been sustained. What is curious is that despite the date of Exhibit 8, Exhibit N, which officially informed the appellant that all matters against him had been "dropped" by Internal Affairs, was not written according to its date until 20 August 1999. A pertinent question is, why could it not have been written earlier? 71. The next and last witness who gave evidence was James Edward Turner, a legally qualified medical practitioner, who was the appellant's family doctor. He said he saw him on 22 October 1998 at which time he said, rather vividly, "he had just spent a night whilst on duty with a policeman who had shot himself and had also "this [meaning I gather his] young boy had been hit by a truck and all this mounted up to be quite traumatic for him". It thus seems that the appellant gave a history of his son's motor vehicle accident as well as his attendance at the suicide scene when he saw Dr Turner on 22 October 1998. He said he prescribed Cipramil, an anti-depressant, at that time. Dr Turner said that the "precipitating event" for the appellant's psychiatric complaints, as it was put, was "just sitting alone on the mountain", by which I took him to refer to the attendance at the suicide scene. 72. Dr Turner had earlier given two reports which were tendered and became Exhibit C. In the first, dated 8 February 1999, Dr Turner spoke of first seeing the appellant on 22 October 1998, which is of course incorrect, having regard to his earlier consultations with the appellant mentioned in the appellant's own evidence in 1994 when he developed marriage problems following the stabbing incident in that year. I shall come to Dr Turner's cross-examination about that in a moment. The appellant thought he saw a doctor other than Dr Turner at this time, but that appears incorrect. Dr Turner also said that the appellant could not function properly as a police officer and attributed this, as I understand his report, to a number of allegations by a criminal which were untrue, referring apparently to the Wylie allegations. 73. It is notable that in his first report Dr Turner refers to "the suicide of his friend shortly before this" as being one of the problems, apart from a transfer to Kogarah, which the appellant had when he first saw him on 22 October 1998 it being clear from Dr Turner's oral evidence that what he was referring to there was the attendance at the suicide scene which I have already discussed. 74. In his second report dated 19 December 2001, Dr Turner essentially repeated the views expressed in his first report. 75. Dr Turner was cross-examined extensively by Mr Daley and again I hope I will be excused if I do not refer to every aspect of that cross-examination for reasons of space. It became apparent in the course of his cross-examination that Dr Turner's recollection as to precisely what occurred at different times in his consultations with the appellant was not precise, but nevertheless he did not resile, as I understood him, from the proposition that the initiating cause of his consultation with the appellant in October 1998 was his attendance at the suicide scene, as well as other problems he had had before then, including particularly his marriage breakup and the motor vehicle accident suffered by his son. He was extensively cross-examined about the appellant's drinking problems, but as I have already said, I have already concluded that contrary to what the appellant asserted at one stage in his evidence and to different doctors, that problem was of some years' standing before he saw Dr Turner in October 1998. 76. Nevertheless, I find this significant that in re-examination Dr Turner said that he did not see the appellant between May and October 1998, i.e. between the approximate date of the son's motor vehicle accident and its immediate sequelae and the appellant's attendance at the suicide scene, nor obviously during that time, I infer, did he prescribe anti-depressants. The reason for Dr Turner's prescription of anti-depressants would appear to be therefore the appellant's presentation to him in October 1998, which was temporally related to his attendance at the suicide scene because it was only a few days after it. As a common sense matter, it would appear to me that the suicide scene attendance, if not the cause of it, was one of the main causes of the appellant's attendance on Dr Turner in October 1998, and therefore a substantial contributing factor to it, and to the state in which he presented which prompted Dr Turner to prescribe anti-depressants, and ultimately to certify the appellant unfit for work, following which he was eventually found to suffer from the infirmity set out in Exhibit A and medically boarded out of the Police Force. 77. After Dr Turner's evidence concluded, Exhibit 9 was tendered, which was a bundle of documents which constitute the best that could be garnered of the records of the appellant's Internal Affairs investigation. Notably, it did not include the documents signed by the appellant in Superintendent Baillie's office. It referred to a number of other matters other than the Wylie allegations which could have redounded to the appellant's discredit, but Mr Daley specifically eschewed reliance on those documents as going to the "reasonableness" within s 11A of the conduct of the respondent's Internal Affairs investigation of the appellant (see in particular pages 40 at line 16, 42 at line 25 and 43 at line 42 of the transcript of 5 April 2002). I have already said that Mr Ower for the appellant conceded that it was reasonable for Internal Affairs investigations to be conducted in relation to the appellant, although he did not concede (nor do I consider) that the respondent's conduct of those investigations was at all times "reasonable" within s 11A, and specifically the delay in informing the appellant that he was "off the hook". 78. Passing to the medical evidence, Exhibit B was a report of Dr Gordon Davies, psychiatrist of Wollongong, dated 1 December 2001. Dr Davies referred to his 1994 consultations with the appellant, which indeed are also referred to in Exhibit 1, as I have already said, and he did not suggest as I understand his report that this consultation was occasioned by anything other than marriage problems, and I think this was in fact the situation. However, the interesting thing is that he then refers to a further consultation in November 1999 in which he says he was told by the appellant that he received a letter of "no confidence" from the Police Service, which I have already concluded was not in fact the situation, and also says that shortly after receipt of this "notice" as he calls it, the appellant related to him that he had been called to an abandoned vehicle, and found in it a suicide note from a police officer who had also received such a notice. 79. Dr Davies formed the view that the onset of the appellant's problems followed the incident in 1994, and of course as I have already noted, Mr Ower for the appellant concedes that incident is not work-related. However, Dr Davies then says "subsequent events have compounded his distress", by which I take him to be including the attendance at the suicide of which he received a history, so that Dr Davies appears to blame the appellant's problems on the attendance at the suicide scene as well as matters preceding it. He referred to the fact that the appellant had been retired on the basis of an "adjustment disorder" with anxiety and depression, although he said that his own diagnosis was "major depression", which he thought "concordant with this", meaning the certified impairment on the basis of which the appellant was medically retired from the Police Force. 80. I have already referred to Dr Turner's reports which were Exhibit C. Exhibit D was a report of Dr Peter Whetton upon which both the appellant and Dr Turner were cross-examined, and it is quite apparent that at the time of the appellant's presentation to Dr Whetton, as related in his report of 4 March 1999, he did not relate his attendance at the suicide scene; this may have been a significant matter but for the fact that the appellant related such attendance when he saw Dr Turner, considerably before he saw Dr Whetton, and as I shall shortly set out, he related it to others after that. I therefore do not think on balance that I should conclude from the appellant's failure to mention his attendance at the suicide scene to Dr Whetton that it necessarily had no particular effect on him in his mind at that time. 81. Dr Whetton received a history suggesting alcohol ingestion for a considerable time. I have already expressed my reasons for concluding that this problem had indeed existed for rather longer than the appellant would have had me believe, in his evidence in chief in particular. 82. Exhibit E was a report of Ms Patsy Grew, medical psychologist, who saw the appellant in 1999 on a date not stated in her report. It is interesting that Ms Grew also received a report not only of "unsubstantiated allegations [later disproved] made against him by proven criminals" from the appellant, but also received a history of attendance at the suicide scene, recording it as "next he was sent to watch over a dead policeman who had suicided". 83. Ms Grew was prepared to say that the appellant's depression levels were considerably higher than normal for a man of his age, and attributed his problems to the various events in the Police Force, starting from the unproven allegations to which she referred, but including by implication attendance at the suicide scene. 84. Mr John Freestone, clinical psychologist, also provided a report which was Exhibit F, and he too received a history of an accidental death or suicide which the appellant was required to attend during the course of his work, although he does not specify precisely what he is referring to there. He does not refer particularly either to unfounded allegations. He thought the appellant's problems were related to his Police service in a general sense, as I read his report. It is significant that he too received a history of attendance at the suicide scene. 85. Exhibit G is a report of Dr Peter Klug, prepared for medico-legal purposes for the appellant's solicitors and dated 3 January 2002. He received an extensive history in relation to the unfounded allegations made by Wylie and of attendance at the suicide scene and of the appellant's alcohol dependence, all of which, as I understand his opinion, produced what he thought to be an adjustment disorder with anxious and depressed mood, which corresponds closely if not exactly with the infirmity referred to in Exhibit A. As I understand him, he thought all of the events of which he had received a history, which he described as "work-related stresses", were the "crucial factor" in the development of this condition. He too therefore by inclusion blames the attendance at the suicide scene as one of the causes of the appellant's problems. 86. Exhibit H was the clinical notes of the Police Medical Officer. I was not particularly addressed on that Exhibit as I understood counsel, but it contains, as part of the history received by the Police Medical Officer on 2 June 1999, "Oct 98 called to job, policeman shot himself after being served with 181D", as well as a number of other matters, which again confirms to a degree at least that the attendance at the suicide scene was one of the reasons for the state of distress in which he presented to the Police Medical Officer at that time. 87. Exhibit O was a report of Dr James Maguire, psychiatrist, dated 7 February 2002. Although tendered in the appellant's case it does not support it. It is the one report which contains any history of the home visit by Inspector Tranby and Superintendent Baillie to the appellant in early 1999, but it does not support any connection on an ongoing basis between that and the appellant's problem, which Dr Maguire diagnoses as an adjustment disorder with anxiety and depression, which seems to correspond with the impairment set out in Exhibit A. Dr Maguire is of the simple view that this sort of condition should resolve within six months of the cessation of the stimulus leading to it, so any ongoing problems after that were due to non work-related factors, as I understand his report. He is the only expert witness who does not attribute the appellant's ongoing problems to work-related stresses. 88. Exhibit P is a report of Dr John Robert Strum, psychiatrist, dated 24 August 1999. He saw the appellant for the respondent, a matter of some significance, because it seems to me that having regard to that, he was hardly likely to form an overly sympathetic view of the appellant, although I hasten to add that I have no reason to doubt his independence as an expert witness. He received a history of the appellant's son's motor vehicle accident as well as the unfounded allegations by Wylie and the appellant's marriage problems, and after an initial denial that he was involved in drug and alcohol matters, the appellant conceded that to Dr Strum, according to the report, that his drinking had increased. The appellant however also related his attendance at the suicide scene to Dr Strum. With this whole picture before him, Dr Strum said at page 9 of his report that after experiencing a previous suicide in 1992 (not the subject of evidence) a colleague of the appellant committed suicide in September 1998 after a 181D Notice had been served upon him, and that when the appellant was served with a 181D Notice in August 1998, it really upset him, so that in October 1998 he stopped work. 89. Further down the same page, after referring to the Wylie allegations not being sustained, Dr Strum says: Even though the 181D Notice was later withdrawn, I can understand Mr Thatcher being upset by it, but it is merely one of a number of factors which caused difficulties for him. The last straw came when a fellow police officer committed suicide after being served with a 181D Notice. This suicide helped Mr Thatcher to focus on his resentment for what was happening to him. 90. Dr Strum's diagnosis was adjustment disorder with anxiety and depressed mood, which I take to correspond fairly precisely with the infirmity set out in Exhibit A, and he thought that this infirmity, as I understand his report, was substantially contributed to by attendance at the suicide scene as well as by preceding events. 91. The significance of this report is considerable in my view, addressed as it was to the respondent and written as it was with a reasonably comprehensive history. Mr Daley urged in addresses that this was not so, having regard to the relatively abbreviated history of drinking problems, but nevertheless I think that Dr Strum was favoured by the appellant with the essential details of his life, including non work-related events such as his marriage problems and his son's motor vehicle accident, and he still thinks that the attendance at the suicide scene was "the last straw" in the development of the appellant's ongoing problems, which I take to mean that he thought it was a substantial contributing factor to them, and I place great reliance on this opinion. 92. No medical evidence properly so called was tendered by the respondent, apart from the clinical notes of Mr Freestone which were Exhibit 11, upon which the appellant was cross-examined to suggest various things, relating in particular but not only to his drinking problems, no doubt because Dr Maguire's report, which was the keystone of the respondent's medical defence of the appeal, had already been tendered by the appellant. I do not accept Dr Maguire's views, which I have already set out, because with great respect, as I remarked to Mr Daley in addresses, they smacked of a degree of dogmatism as to the usual course of an adjustment disorder, and because Dr Strum's views in particular seemed to me to be a better common sense explanation of the relationship between the events of the appellant's life and the development of his infirmity. 93. Comparing this report with the rest of the evidence in the case, I am of the view that it correctly explains the situation, and that in fact the appellant's attendance at the suicide scene was very likely the precipitating event in, and certainly a major and therefore substantial contributing factor within s 9A to, the appellant's development of the infirmity certified to in Exhibit A. There being no submission that if I so concluded, there was not an injury arising out of and in the course of the appellant's employment, the appeal should for this reason alone succeed, on the basis that the appellant's infirmity was caused in part by his being "hurt on duty" by his attendance at the suicide scene. 94. Therefore it matters not that, as I have concluded, the stabbing incident with Wylie in 1994 occurred outside the course of the appellant's employment, as that itself did not, even on the appellant's own case, contribute significantly to his ongoing problems and certainly there is no suggestion in Dr Strum's report, and for that matter in Dr Turner's evidence, upon which I also place considerable reliance, he being the applicant's treating general practitioner who saw him on a number of occasions in non medico-legal circumstances, that the stabbing incident itself did anything more than precipitate some marriage problems for the appellant, which led ultimately to his ultimate separation from his wife, and in the first instance to his consultations, with his wife, with Dr Davies in 1994. 95. That being so, I think the correct conclusion is that the appellant's infirmity was caused both by the Wylie incident and the other non work-related factors emerging after it, such as his marriage breakup, his increased drinking and his son's motor vehicle accident, but also by the Internal Affairs investigation of the Wylie allegations, and in particular by the protracted delay in its conclusion, and the attendance at the suicide scene, the latter being alone in my view a substantial contributing factor to his development of the infirmity set out in Exhibit A. 96. As to the Internal Affairs investigation, I gain some guidance from the decision of Burke J in Reed v Commissioner of Police (2001) 22 NSWCCR 385, where his Honour had to consider a situation where unfounded allegations were made about improper conduct by a policeman while on duty. Undoubtedly, had those events been found to have occurred, they would have placed the policeman in question outside the course of his employment when he committed the alleged acts in question. As it was, the investigation eventually established that those allegations were untrue. His Honour's approach was to consider that it was a requirement of the policeman's employment to answer the allegations in question, in that case at the recent Royal Commission on police conduct, and obviously the fact that the investigations had been conducted under the auspices of the Royal Commission rather than by ordinary detectives was the result of the appellant being a policeman and not a private citizen, although his Honour did not refer specifically to this fact. Consequently it followed that an infirmity which developed as a result of the investigations, they being unfounded in the event, gave rise to an injury arising out of the employment of the policeman, which consequently fell within the definition of "hurt on duty" in the Act, it being held at [116] that s 9A provided no defence. Burke J does not seem to have had to deal with a direct submission that investigation of allegations of improper conduct, even if found unproven, take a Police Force member outside the course of his or her employment, even if found unproven or dismissed (as here), as distinct from a general assertion that attendance at a Royal Commission to answer allegations against one cannot be in the course of employment. However the former direct submission is made here, and consequently I have tried to rule on it. 97. A contrary conclusion was reached by Geraghty J in Schinnerl v Commissioner of Police (1995) 11 NSWCCR 278 where by contrast, improper conduct on duty was proved, and where the policeman nevertheless alleged that psychological upset as a result of an investigation into this resulted from being "hurt on duty", being an alleged injury arising out of or in the course of the employment. In contrast to the situation in Reed, the appellant failed and the point of distinction is that the allegations were found to be true, and that therefore the causal nexus with the employment was lost, because the investigation resulted from actions which were gross misconduct and therefore totally outside the course of the employment of the policeman in question, and did not arise out of it either. 98. I gain some guidance also from the decision of the Court of Appeal in Drayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46 to the extent that Davies AJA, whose analysis was not disagreed with by any of the other members of the Court of Appeal, who did not examine the matter in such detail, held that the expression "substantial" in s 9A does not mean "large or weighty", but rather "real and of substance" (see pars [37] and [38]). This latter case is not of much assistance to me except to demonstrate that it is not necessary for me to find that the result of the Internal Affairs investigations, evidenced by the final letter to the appellant dated 20 August 1999, which is Exhibit N, or the attendance at the suicide were "the substantial contributing factor" within s 9A of the Workers Compensation Act to the appellant's infirmity; it is sufficient to find that they were "a substantial contributing factor" and it is not necessary that these factors were "weighty or big" provided they were "real or substantial". Had I been required to consider the former test, I think I would have concluded that they were "weighty or big" in any event, particularly in regard to their proximity to the appellant going off work in temporal terms. 99. Reed demonstrates that it may be proper to regard investigation of unproven allegations as being an event occurring in the course of the employment of a policeman and arising out of it, which may therefore give rise to injury both arising out of and in the course of the employment, so as to make such injury fit the definition of "hurt on duty" in the Act, subject to the application of s 11A. It seems to me proper to take that view in this case. I have already expressed my reasons for concluding that the delayed communication of the result of the Internal Affairs investigation of the various allegations made against the appellant by Wylie, all of which proved unfounded, was a substantial contributing factor, along with his attendance at the suicide, which was undoubtedly an event in the course of his employment and arising out of it, to the appellant's development of his infirmity as set out in Exhibit A. 100. I consider that the Commissioner's dealing with the investigation by Internal Affairs into the Wylie allegations was not reasonable within s 11A, even though it was undoubtedly "discipline" of the appellant within the section, because, as I have already said, a pregnant question is why the letter, which is Exhibit N, could not have been written much earlier, particularly having regard to Superintendent Baillie's being told much earlier than this that all the allegations had in effect been dropped. 101. I think the appellant was within his rights and entirely reasonable in not considering all allegations to be dropped until he received written notification of that fact, particularly (but not only) in view of the resurfacing, as it were, of the Wylie allegations as evidenced by the further Records of Interview evidenced by Exhibit M which took place as late as 11 January 1999, well after the criminal trial had been concluded and well after Wylie had been imprisoned. Apparently it was still agitating Internal Affairs at that point that those allegations may be true. Surely by then the fact that Wylie had been imprisoned after making his allegations at the trial might have suggested that some sort of written assurance to the appellant that his problems were over might have been in order. 102. Mr Daley suggested that the Ombudsman's intervention provided a reasonable explanation for the respondent's delay in writing the letter which became Exhibit N. I do not agree. Merely because "things take as long as they take" in bureaucratic circles does not make such activity reasonable. I do not think it was in this case, and I think that the appellant was left "on the hook" for an unduly long time before he received Exhibit N, and I do not think that such conduct was "reasonable" within s 11A, so that section provides no defence to the respondent. 103. For all of these reasons, it follows that the appellant is entitled to succeed in his appeal. For those reasons, I set aside the determination in Exhibit A that the infirmity of "adjustment disorder with anxiety and depression" suffered by the appellant was not caused by his being hurt on duty, and substitute for it a determination that it was so caused. 104. The respondent must pay the appellant's costs. 105. I recommend that the appellant's costs include counsel's fees on a full brief fee basis for all hearing days and fees for advice on evidence and second conference at $310, which I think appropriate in this difficult case. Mr T M Ower instructed by Walter Madden Jenkins appeared for the applicant. Mr M A J Daley instructed by Court & Legal Services - NSW Police Service appeared for the respondent. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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