New South Wales Court of Appeal CITATION: Marriott v. Commissioner of Police [2006] NSWCA 219 HEARING DATE(S): 28 July 2006 JUDGMENT DATE: 28 July 2006 JUDGMENT OF: Hodgson JA at 1; Ipp JA at 33; Bryson JA at 34 EX TEMPORE JUDGMENT DATE: 07/28/2006 DECISION: (1) Appeal allowed. (2) Orders below set aside. (3) Respondent to pay the appellant's costs of the appeal. (4) The matter is remitted to the Tribunal for decision in accordance with these reasons. CATCHWORDS: POLICE - Conditions of service - Hurt on duty - Appeal to GREAT - Whether "injury" through aggravation of disease - Whether incapacity caused by that injury - Whether GREAT addressed these questions - Whether error of law shown. PARTIES: Allen John Marriott - appellant Commissioner of Police - respondent FILE NUMBER(S): CA 40350/05 COUNSEL: Mr. I. Roberts SC with Mr. G. Leveck for appellant Ms. A. Stenmark SC with Mr. A. Kostopoulos for respondent SOLICITORS: Harris Wheeler, Newcastle for appellant NSW Police Legal Services, Parramatta for respondent LOWER COURT JURISDICTION: Government & Related Employees Appeal Tribunal LOWER COURT FILE NUMBER(S): GREAT NO.P48/97 LOWER COURT JUDICIAL OFFICER: Members S.Trusty and B. Kenny LOWER COURT DATE OF DECISION: 19 April 2005 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40350/05 GREAT NO.P48/97 HODGSON JA IPP JA BRYSON JA Friday 28 July 2006 MARRIOTT V. COMMISSIONER OF POLICE Judgment 1 HODGSON JA: The appellant commenced a period of absence from his then duties as a police officer on 13 May 1996. He claimed the absence as hurt on duty, and on 11 February 1997 a delegate for the Commissioner of Police decided that the absence was not duty-related. On 25 February 1997 he lodged an appeal with the Government and Related Employees Appeal Tribunal, which I will call the Tribunal, against that decision. 2 On 1 April 1997, the appellant made an application for medical discharge from the police force. The Police Superannuation Advisory Committee certified him as incapable of discharging his duties due to an infirmity identified as "anxiety-based disorder with elements of post-traumatic stress disorder and panic disorder" on 27 January 1998. 3 On 12 February 1998, which was the date of his discharge, a delegate for the Commissioner of Police decided that the infirmity that led to his discharge was not duty-related. 4 On 5 March 1998, the appellant lodged an application for determination with the Compensation Court against that decision, but lodged no appeal with the Tribunal. That is perhaps not surprising, because when he was notified of the decision he was advised that, if he wished to challenge it, the appropriate course was to make an application to the Compensation Court. 5 Ultimately, that application was not pursued, it seems because there were questions as to the jurisdiction of that Court in the light of extremely complex provisions concerning appeals from such decisions. In the result, it may be that the appellant has entirely lost a right to appeal from that decision, in circumstances where he complied with the advice he was given in the document that advised him of the decision. If that is so, then it is extremely regrettable and a matter which, if possible, something should be done about. 6 On 19 April 2005, the Tribunal decided it had jurisdiction only in relation to the appellant's appeal in respect of his period of absence from 13 May 1996 to the date of his discharge on 12 February 1998, and not in relation to any challenge to the decision concerning his superannuation rights on discharge. The Tribunal disallowed the appeal which it found it had jurisdiction to deal with. 7 The appellant appeals from that decision on the following grounds: 1. The Tribunal erred in law in that: (i) the hearing of the appeal proceeded upon the basis that the Tribunal was bound by a certificate given by the Police Superannuation Advisory Committee on 27 January 1998 to the effect that the appellant was incapable of discharging his duties due to an infirmity specified as "anxiety based disorder with elements of post traumatic stress disorder and panic disorder". (ii) The Tribunal, subsequent to the completion of the hearing of the appeal, determined it was not bound to accept that (as at 27 January 1998) the appellant suffered the infirmity referred to above. (iii) In the circumstances the Tribunal should have given the parties the opportunity to adduce further evidence, or make further submissions. 2. The Tribunal erred in law in that (i) The hearing of the appeal proceeded upon the basis that the Tribunal was bound by a certificate given by the Police Superannuation Advisory Committee on 27 January 1998 to the effect that the appellant was incapable of discharging his duties due to an infirmity specified as "anxiety based disorder with elements of post traumatic stress disorder and panic disorder"'. (ii) The Tribunal's determination of the appeal must have involved an (unstated) determination that, between 13 May 1996 and 27 January 1988 the appellant did not suffer an anxiety based disorder with elements of post traumatic stress disorder and panic disorder. (iii) As the Tribunal was bound to accept that as at 27 January 1998 the appellant did suffer an anxiety based disorder with elements of post traumatic stress disorder and panic disorder it was an error of law - (a) for the Tribunal to make the determination referred to in paragraph 2(ii) above when there was no evidence of any change in the appellant's condition between 13 May 1996 and 27 January 1998. (b) for the Tribunal to fail to give reasons for making the determination referred to in paragraph 2(ii) above. 3. The Tribunal erred in Jaw in that it failed to consider whether, assuming the appellant suffered an underlying constitutional psychiatric disorder (as contended by the respondent), that condition - (a) had been aggravated, accelerated, exacerbated or had deteriorated; and (b) the appellant's employment bad contributed to that aggravation, acceleration, exacerbation or deterioration. 4. That the Tribunal erred in law when it determined that the appellant's unfitness for work from 13 May 1996 onwards was a result of his stress/anxiety from his operation for prostrate cancer. 5. That the Tribunal erred in law in failing to find that the appellant's phobia in relation to firearms, which the Tribunal appears to accept existed, was an injury to the appellant arising out of or in the course of his employment. 8 In relation to grounds 1 and 2, the following propositions were put on behalf of the appellant. 9 Firstly, that the case as conducted below involved two areas of dispute, the major area being that concerned with the appellant's entitlement on discharge, this being the area as to which ultimately the Tribunal found it had no jurisdiction. The other area, concerning the closed period from 13 May 1996 to 12 February 1998, was a relatively minor matter in the way the case was conducted. 10 Secondly, as regards the first area of dispute it was accepted by both sides that the certificate given pursuant to s.10B of the Police Regulation (Superannuation Act) 1906 was binding as to the nature of the infirmity that led to the appellant being discharged. 11 Thirdly, in those circumstances no submissions were put to the Tribunal dealing directly with the weight or effect of the certificate in relation to the other minor area of controversy. 12 Fourthly, it was only after the hearing that the Tribunal itself raised the question whether it had jurisdiction to consider the major area of controversy, and it called for written submissions on this question. 13 Fifthly, after receiving written submissions on this question, the Tribunal decided it did not have jurisdiction in relation to the major area of controversy, and it gave its decision on the minor area without allowing for any further submissions. 14 Sixthly, in deciding that minor area the Tribunal said it was not bound by the certificate, and it did not otherwise refer to the certificate and, inferentially, it gave no weight to it. 15 In those circumstances, it was put to this Court that there was a denial of procedural fairness, because the Tribunal should have called for further submissions as to what I have called the minor area of controversy, and in particular submissions as to the effect to be given to the certificate. 16 In my opinion, there was no denial of procedural fairness. The Tribunal's decision as to its jurisdiction on the major area of controversy did not to any extent alter the actual issues that were involved in the minor area of controversy. At the most, it meant that an aspect of the case, that may have received less attention at the trial because of focus on the other aspect, became relatively of greater significance. 17 In any event, in circumstances where the Tribunal had before it extensive medical evidence, including oral evidence from two medical practitioners and the very report on which the certificate itself was based, in my opinion the certificate was properly regarded by the Tribunal has having little independent weight in the context of the whole of the evidence. 18 For those reasons, in my opinion the first two grounds of appeal fail. 19 In relation to grounds 3 to 5, and in particular ground 3, the Tribunal identified the issues before it as follows: 15. Mr Marriott has appealed against the decision of the Commissioner's delegate on 11 February 1997 to refuse to classify a leave of absence from 13 May 1996 as being caused by him being 'hurt on duty'. He therefore seeks an order from 'the Tribunal that his absence since 13 May 1996 from his employment with the Commissioner of Police is as a result of incapacity resulting from his being 'hurt on duty'. 16. Section 186 of the Police Act 1990 provides for a right of appeal to the Tribunal against a decision of the Commissioner to grant or refuse leave of absence on full pay to a police officer during any period of absence caused by that officer being 'hurt on duty' within the meaning of section 1(2) of the PR(S) Act. The definition of 'hurt on duty' in s.1(2) of the PR(S) Act provides: ""hurt on duty", in relation to a member of the police force, means injured in such circumstances as would, if the member were a worker within the meaning of the Workers' Compensation Act 1987, entitle the member to compensation under that Act" 17. Section 9(1) of the Workers' Compensation Act 1987 ("the WC Act") provides that a worker who has received an injury, whether at or away from his place of employment, shall receive compensation from the worker's employer in accordance with that Act. 'Injury' is defined in section 4 of the WC Act as: "(a) means personal injury arising out of or in the course of employment; (b) includes - (i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration" 18. To succeed in his appeal Mr Marriott must satisfy the Tribunal, on the balance of probability, that the incapacity that kept him from work since 13 May 1996 arose out of or in the course of his employment as a police officer. 20 The Tribunal very carefully reviewed the medical evidence before it, consisting of a number of reports and also oral evidence from two medical practitioners, including a medical practitioner Dr White. The Tribunal set out some of Dr White's evidence as follows: 40. On 24 October 1996, Dr White interviewed the appellant at the request of the Police Service and had available to him the medica! reports/certificates of Drs Spragg, Mayne, Batra, Bell, Barnes and Armstrong. In his report dated 24 October 1996, Dr White reviewed the history given to him by the appellant, recorded his observations from his examination of the appellant and reviewed the other medical material. As part of the mental status examination, Dr White discussed with the appellant his operation in November 1995 for prostatic cancer and its effects. Dr White notes that the appellant had been impotent since the cancer and that the cancer did not worry him 'too much'. Dr White notes (Given that this is a current life and death issue for him, given that his father died of prostatic cancer, and given that there are some drastic treatments including [testicles removed and hormone treatment] for evidence of a relapse. I have some difficulty with that answer)'. He also provides his views on the usefulness of treating doctors' reports, together with general medical discussion of post traumatic stress disorder (including chronic and delayed-onset PTSD and co-morbidity) and panic disorder . He disagreed with the earlier diagnoses of post traumatic stress disorder, stating his view that.'...Marriott does not and never has fulfilled the criteria for Post Traumatic Stress Disorder', and appears to reject the notion of delayed-onset PTSD. As Dr White was also called to give evidence, it is helpful to set out his conclusion in detail: 'In my view, Senior Constable Marriott is suffering from Panic Disorder with Agoraphobia which has been sub-optimally treated. Panic Disorder is a constitutional disorder from which recovery can be anticipated within six to twelve weeks of compliance to a comprehensive treatment programme. Panic Disorder with or without Agoraphobia is not itself an absolute justification for an inability to work. Many people with panic attacks continue to work; albeit with some discomfort. Often people feel better at work than (say) at restaurants or theatres because their perceived need for work overcomes the anxiety symptoms. Due to the unfortunate process of having been described as having suffered a Post Traumatic Stress Disorder, Senior Constable Marriott has had the wrong treatment and now believes he will never get better. Not only did the treating clinician offering a brief conclusory (sic) report, but also he did not undertake the protocol for assessment and management of Treatment Resistant Mental Illness so that he would be doing the patient a disservice if the patient truly wished to return to work. Senior Constable Marriott did not, however, express concern about his alleged failure to recover. Because Senior Constable Marriott suffers from a constitutional psychiatric disorder, because the psychiatric disorder is being suboptimally treated, and because the psychosocial stressors which Senior Constable Marriott described were within the range he should reasonably confront in his day to day vocational functioning, it is my view that Senior Constable Marriott's psychiatric symptoms in October 1996 cannot be reasonably attributed to his work with the Police Service'. In his evidence to the Tribunal, Dr White confirmed the opinions expressed in his report as to the condition of the appellant and that it was not work related. 21 The Tribunal made the following findings: 49. Having observed the manner and demeanour of the appellant in giving his evidence to the Tribunal did not find the appellant an impressive witness. Additionally, as counsel for the respondent set out in some detail in his submissions, there are a number of inconsistencies and errors in the information the appellant has supplied to the various doctors and the Police Service throughout his claim. Dr Klug, in his evidence indicated that some inaccuracy with details or recall could be part of the symptoms of someone in the appellant's condition. However, some of the errors are more than inaccuracies as to dates/details but in some instances amount to completely different versions of events. For example, his apparent failure to mention any specific symptoms or problems immediately following the 1978 incident to the doctors he saw in the early 1990's as opposed to the details he gave to most of the doctors from 1996 onwards. As such, the Tribunal does not consider the evidence of the appellant entirely reliable. For the record, the Tribunal accepts the evidence of Inspector Bowron where it conflicts with that of the appellant. 50. There was a great deal of medical opinion presented to the Tribunal in this case, and almost as many differing views of the appellant's condition as there are reports. However, there is a clear difference in the medical reports - those reports that basically found his condition work related (Dr Spragg; Dr Anderson; Dr Batra; Dr Barnes; Dr Klug; Dr Dyball; Dr Collis; Dr Armstrong: and Dr Milton) and those that basically found it was not work related (Dr Mayne; Dr Bell; and Dr White). Additionally, all the medical opinions appear to accept that the appellant developed a great fear or phobia in relation to firearms after the 1978 incident. 51. The differences in the medical opinion also broadly suggest two main possibilities as to Mr Marriott's psychological condition. Option One: as a result of the frightening incident with Connor in 1978 he developed a gun phobia and, exacerbated by the incidents in the RSL Club; at the shooting range in the early 1980's; the mandatory shooting requirement introduced in 1990; the incident with Connor's brother in 1991; and Port Arthur/gun amnesty, around 1996 the appellant suffered a recurrence of an anxiety state and/or post-traumatic stress disorder that caused the appellant to be unfit for police work and absent from duty from 13 May 1996 onwards. Option Two: as a result of the appellant's underlying constitutional psychiatric disorder, the 1978 incident resulted in him developing a gun phobia and panic disorder; the subsequent incidents involving firearms led to episodes of stress/anxiety; and in 1996, as a result of his stress/anxiety from his operation for prostate cancer, the appellant became unfit for work from 13 May, 1996 onwards. Dr Klug's report(s) can be considered the leading report in relation to Option One and Dr White's report the leading report in relation to Option Two. The Tribunal notes that both Dr White and Dr Klug appeared honest and forthright expert witnesses when they gave evidence before the Tribunal. 51. The Tribunal is entitled to consider how much or how little weight to give to different medical opinions in light of the factual matters on which those opinions are based - see Makita's Case. Given the Tribunal's reservations as to the appellant's reliability as a witness, his reliability as an accurate historian to the doctors is also in question. As such, the Tribunal considers it appropriate to allow greater weight to a medical report that has been based on a variety of material and not just the history supplied by the appellant, particularly where those details appear incomplete or inaccurate. 52. In relation to Dr Klug's report of 1997, his diagnosis of the appellant as having chronic post-traumatic stress disorder (PTSD) encounters difficulties with some of the other medical reports. In Dr White's report, prepared prior to Dr Klug's, he discussed at length the difficulties in the medical history of the appellant in finding PTSD, particularly chronic and delayed onset PTSD. Dr Barnes' report notes that the onset of PTSD symptoms so long after the 1978 incident is 'unusual'. Finally, in Dr Milton's report in 1999, he agrees with the comments of Dr White and Dr Barnes in relation to PTSD and gives his own opinion that the history is not supportive of a PTSD diagnosis. Additionally, in his report, Dr Klug has relied on the appellant's history of symptoms, though mild, occurring immediately after the incident of 1978. Not only is that version of the appellant's history missing from the history recorded by the majority of the doctors who examined the appellant before Dr Klug, but Dr Milton notes in his report the absence of any documented early PTSD symptoms. In so far as Dr Klug's opinion relies on that otherwise unsupported history from the appellant, it must reduce the weight given to Dr Klug's opinion. 53: Additionally, Dr Klug's opinion does not seem to deal adequately with the issue of the appellant's prostate cancer operation in November 1995. Dr White in his report discusses the operation and the resulting impotence as a clear stressor in the ~appellant's history. Dr Klug had available Dr White's report when he examined the appellant, and refers to Dr White's report in his own. However, Dr Klug does not attach any particular importance to the prostate cancer issue in his report, simply recording the apparently brief history of it given to him by the appellant. That approach can be contrast with the level of detail and comment devoted to the issue by Dr Milton in his report. Dr Milton is clearly of the opinion that the prostate cancer operation being able to work from May 1996. The Tribunal shares the views of Dr White and Dr Milton as to the importance of this issue in the medical history of the appellant. 54. Dr White's diagnosis of the appellant also encounters difficulties with some of the other reports. In particular, only the reports of Dr Bell and, Dr Mayne reach a similar conclusion as Dr White about the appellant having an underlying constitutional psychiatric disorder, with Dr Spragg's early report lending some support to that conclusion. Dr Klug and Dr Milton both comment on it being possible, but in their opinions, unlikely as there is no evidence of child or early life incidents to support the proposition. Additionally, although Dr Klug and Dr Dyball both agree with the diagnosis of panic disorder, they both found the panic disorder work related. Having said that, Dr Klug and Dr Dyball both appear to base their opinions heavily on the history given by appellant. 55. After carefully considering all the available evidence, including the conflicting medical reports, the Tribunal prefers in general terms Dr White's report and Option Two over Dr Klug's report and Option One. Ultimately, the Tribunal finds that the appellant has failed to establish on the balance of probability that the incapacity that kept him from work since 13 May 1996 arose out of or in the course of his employment as a police officer. 56. As a final point, the Tribunal notes the parties at the hearing were in agreement that the Tribunal was bound by the determination of the Superannuation Advisory Committee in relation to the nature of the incapacity concerning the appellant's medical discharge. However, it was not suggested that the Tribunal was so bound in relation to the closed period absence, and the Tribunal has not considered itself bound by that determination in this appeal. 22 The appellant's submission is that, while it was open to the Tribunal to prefer the evidence of Dr White to that of other medical practitioners, and while it was accordingly open to the Tribunal to prefer what it called option 2 in the first para[51] of its judgment, this only raised and did not answer questions which the Tribunal had to consider, namely whether there was by reason of events at work an aggravation of a disease, namely an underlying constitutional psychiatric disorder, and thus an injury arising out of or in the course of employment, and if so whether incapacity resulted from that injury. 23 Plainly, it was submitted, the view of Dr White (expressed in the last paragraph of the quotation from his report set out above) that the appellant's symptoms in October 1996 cannot reasonably be attributed to his work with the police service because he suffered from a constitutional psychiatric disorder, because this disorder was being so sub-optimally treated and because the stressors which he suffered were within the range he should reasonably confront, provided no basis whatsoever for a conclusion that the appellant did not suffer an injury arising out of or in the course of employment, or a conclusion that his incapacity did not result from that injury. The reasons given by Dr. White were, at law, wholly irrelevant to his conclusion. 24 For the respondent it was submitted that, although the Tribunal did not in terms address the questions identified by the appellant, its judgment showed that it appreciated the questions it had to address, and the last sentence of para[55] of its judgment amounted to a decision on those questions, so that any challenge was merely an attempt to challenge decisions of fact. 25 It was submitted that the description of option 2, which was preferred by the Tribunal, was in substance a description of a scenario in which it was stress from the operation for prostate cancer which was the sole cause of the subsequent incapacity, this being a finding well open to the Tribunal, in circumstances where the appellant had functioned as a police officer right up to 1996 and where the opinion of medical practitioners which the Tribunal preferred treated stress arising from the cancer as the cause of his subsequent incapacity. 26 In my opinion, it is not possible to construe the judgment of the Tribunal as submitted for the respondent. In my opinion, a fair reading of option 2 as described by the Tribunal is a scenario in which the appellant had an underlying constitutional psychiatric disorder which was exacerbated by work incidents, and it was stress and anxiety from the 1996 operation added to this that caused the incapacity: that is, the incapacity resulted from the cumulative effect of these matters. 27 This construction has support from what appears in para[53] of the Tribunal's judgment, where the Tribunal says that it shares the view of Dr Milton that the main cause of the depression that prevented the appellant from being able to work was the prostate cancer operation; this implying that there was some other cause, the only possible candidate being the pre-existing condition arising in the way I have described. Indeed, Dr. Milton himself said that it was probable that the appellant could have overcome the depression associated with the diagnosis of cancer had he not already been in a troubled state as a result of work incidents. 28 In those circumstances, in my opinion the Tribunal erred in law in failing to address the questions identified by the appellant. 29 It was submitted for the respondent that no substantial miscarriage was shown, because the evidence would justify a decision that cancer and stress arising from the cancer was the only cause. 30 In my opinion, that would not be sufficient to make out a case that there was no substantial miscarriage of justice. In my opinion, it was clearly open on the evidence to find that the pre-existing condition, aggravated by work incidents, was a contributing cause and, in circumstances where through error of law that question was not addressed, a substantial miscarriage of justice is made out. 31 It was put, perhaps faintly, by the appellant that this Court should determine the matter in favour of the appellant. There is a question whether this Court can do so having regard to the provisions of s.56 of the Government and Related Employees Appeal Tribunal Act. But even if it could, in my opinion the matter would not be sufficiently clear for this Court to make its own decision. 32 For those reasons, in my opinion the appeal should be allowed. 33 IPP JA: I agree. 34 BRYSON JA: I agree. 35 HODGSON JA: So the order of the Court is: (1) Appeal allowed. (2) Orders below set aside. (3) Respondent to pay the appellant's costs of the appeal. (4) The matter is remitted to the Tribunal for decision in accordance with these reasons. ********** 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.