New South Wales Court of Appeal CITATION: Commissioner of Police v David Rea [2008] NSWCA 199 HEARING DATE(S): 13 August 2008 JUDGMENT OF: Allsop P at 1; Handley AJA at 2; Johnson J at 11 EX TEMPORE JUDGMENT DATE: 13 August 2008 DECISION: Appeal dismissed with costs. CATCHWORDS: WORKERS' COMPENSATION - Police - Causation - Not excluded by medical evidence - Finding of causation open to lay tribunal LEGISLATION CITED: Police Regulation (Superannuation) Act 1906 CATEGORY: Principal judgment Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538 Commonwealth of Australia v McLean (1996) 41 NSWLR 389 CASES CITED: Edwards v Bairstow [1956] AC 14 EMI (Australia) Limited v Bes (1970) WCR 114 Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 Vetter v Lake Macquarie C.C. (2001) 205 CLR 439 PARTIES: Commissioner of Police (Appellant) David Rea (Respondent) FILE NUMBER(S): CA 40545/07 COUNSEL: T Ower (Appellant) S Campbell SC/T Edwards (Respondent) SOLICITORS: Tress Cox (Appellant) Harris Wheeler (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): RJ 00187/076 LOWER COURT JUDICIAL OFFICER: Armitage DCJ LOWER COURT DATE OF DECISION: 1 August 2007 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40545/07 RJ00187/076 ALLSOP P HANDLEY AJA JOHNSON J WEDNESDAY 13 AUGUST 2008 COMMISSIONER OF POLICE v DAVID REA WORKERS' COMPENSATION – police – causation – not excluded by medical evidence – finding of causation open to lay tribunal HEADNOTE The respondent, a former police officer was certified under the Police Regulation (Superannuation) Act 1906 as suffering from a heart condition. The Commissioner declined to find that this was caused by his being hurt on duty. The former officer's appeal to the District Court was allowed, and findings made that his work-related stress was the cause of or a substantially contributing factor to the contraction or aggravation of his heart condition. On appeal to the Court of Appeal which was limited to a question of law, the Commissioner contended that the expert medical evidence did not support the judge's causation finding. HELD: The expert medical evidence did not exclude a finding of causation and the judge was entitled to apply the principles in Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 and EMI (Australia) Ltd v Bes (1970) 44 WCR 114 and make the finding he did. ORDERS Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40545/07 RJ00187/076 ALLSOP P HANDLEY AJA JOHNSON J WEDNESDAY 13 AUGUST 2008 COMMISSIONER OF POLICE v DAVID REA Judgment 1 ALLSOP P: I will ask Justice Handley to deliver the first judgment. 2 HANDLEY AJA: The Commissioner of Police appeals or seeks leave to appeal from the judgment of Armitage DCJ that the certified infirmity of paroxysmal atrial fibrillation the former police officer suffers from was caused by his being hurt on duty. The judge's finding entitled or may entitle the former police officer to additional compensation in the nature of workers' compensation under the Police Regulation (Superannuation) Act 1906. 3 It is common ground that the appeal from the District Court in its residual jurisdiction in workers' compensation cases is limited to questions of law. The trial judge found that the police officer had been exposed to significant stress as a detective stationed at Maitland and as the sole police officer on general duties at Clarencetown. The critical question for his Honour's decision was whether that stress was the cause of or a substantial contributing factor to the contraction of his heart condition or was a substantial contributing factor to its aggravation, acceleration, exacerbation or deterioration. 4 The expert medical evidence that the judge accepted did not support a positive finding that the stress experienced by the police officer in the course of his duties was the cause or a substantial contributing factor in initiating or aggravating the officer's heart condition. On the other hand, the evidence of Dr Nickoletatos, Dr Hickey and Professor Keogh and the material published in peer review journals in the United States referred to by Professor Keogh established as the judge found that: "Medical science could not exclude causation of this condition as the result of employment related stress". 5 Counsel for the appellant challenged this finding in reliance on the principles stated by Heydon JA in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 and submitted that the medical evidence was not admissible or had no persuasive force for reasons that he developed. However, he eventually conceded that the finding by the judge that causation could not be excluded was open on the evidence and was not affected by legal error. That concession was clearly correct and indeed emerged as a result of the discussion between the Court and counsel. 6 The second question identified by Mr Ower, counsel for the appellant, was whether it was open for the trial judge to bridge the evidentiary gap in the medical evidence in the way he did. His Honour's ultimate conclusion on the second question was: "To a mind uninstructed in pathology the sequence of events described in the plaintiff's evidence, suggests that after September 2001 plaintiff was subjected to a number of critical incidents, as he put it, in the course of his police service which inspired fear in his mind and, as I full accept caused him raised stress on a chronic basis after they occurred. He did not, it is true, develop atrial fibrillation in immediate temporal proximity to these critical incidents. His assertion was that they simply added to his general stress levels and contributed to the feeling of being 'stressed out' and unable to sleep. He did not say that in immediate temporal proximity to them he experienced the chest tightening feeling he described as being like a rubber band stretched around his chest. This only occurred, on his evidence, from time to time. However, he did describe a picture of gradually increased emotional stress from September 2001 until his eventual application for medical discharge, including the period after he went on sick leave in April 2004 and before he eventually left the police residence and moved to his own house at Dungog a considerable number of months later. It was during this period of time that his admission to Maitland Hospital with atrial fibrillation occurred. To a mind uninstructed in pathology, this series of events would suggest a connection between his development of paroxysmal atrial fibrillation and the gradually increasing stress he described at work." 7 Mr Ower submitted that this reasoning involved a misapplication of the principles referred to in Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538 at 563-4 and 569 in the judgements of Rich J and Dixon J respectively. He submitted that the immediate association in that case between the worker's exertion and his fatal heart attack was not present in this case. He further submitted that a finding based on what I will describe as the Forst principles was not open where the stress was experienced over some three years and the condition was not suffered and diagnosed until some months after the police officer went on sick leave. 8 These submissions must be rejected because it is now well established that the Forst principles are not limited to cases where there is an immediate temporal connection between the alleged cause and the injury. In EMI (Australia) Limited v Bes (1970) 44 WCR 114 at 119 Herron CJ said: "It is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant's contention is correct. Medical science may say in individual cases that there is no possible connection between the events and the death in which case of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then in my opinion the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning". See also Commonwealth of Australia v McLean (1996) 41 NSWLR 389 at 410. In my judgment the finding of causation by the trial judge was not affected by legal error. 9 There was no overt legal error, his Honour did not ask himself the wrong question and he did not misdirect himself in law. Nor, in my judgment, was this a case where the finding of fact was so unreasonable in relation to the underlying events and the medical evidence that it is open to a court limited to the correction of legal error to conclude that the challenged finding was not reasonably open on the evidence and demonstrated a latent error of law: Vetter v Lake Macquarie C. C. (2001) 202 CLR 439, 450; Edwards v Bairstow [1956] AC 14, 36. In my judgment therefore the appeal fails and should be dismissed with costs. 10 ALLSOP P: I agree. 11 JOHNSON J: I also agree. 12 ALLSOP P: The orders of the court are as proposed by Justice Handley. ********** 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. 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