Industrial Relations Commission New South Wales Medium Neutral Citation: Woollard v SAS Trustee Corporation [2012] NSWIRComm 51 Hearing dates: 2 December 2011 Decision date: 25 June 2012 Jurisdiction: Industrial Court of NSW Before: Boland J President at [1], Walton J Vice-President at [125], Kavanagh J at [125] and Backman J at [125] Decision: The Full Bench orders that the matter be delegated to a Member of the Full Bench to take evidence in advance of further hearing before the Full Bench which will then determine the matter in accordance with this decision. Catchwords: APPEAL - POLICE - Application by Phillip Woollard to appeal against a determination made by the SAS Trustee Corporation not to add the infirmity of chronic post traumatic stress disorder to a certificate of incapacity issued under s 10B(2)(a) Police Regulation (Superannuation) Act - allocated for hearing to Haylen J - matter referred by Haylen J to the President under s 193(1) Industrial Relations Act - matter allocated by President to Full Bench - correctness of decision in SAS Trustee Corporation v Hazlewood [2009] NSWIRComm 147; (2009) 188 IR 174 considered - two issues of construction of s 10B(2)(a) raised - first construction issue as to advice of the Commissioner of Police as to notice under s 10B(2)(a) - Held: STC not obliged to accept advice of Commissioner of Police as to notice - Hazlewood decision wrong in this respect - second construction issue as to meaning of notification of injury which has caused the member's infirmity of body or mind - consideration of statutory scheme - Held: s 10B(2)(a) requires notification of an event, an injurious consequence and a connection between the two - where infirmity of body or mind is a disease of gradual onset with no identifiable injurious event, requirement to notify of an event is concomitant with requirement to notify symptomatology provided symptomatology sufficient to demonstrate onset of the disease - Hazlewood decision wrong insofar as it found otherwise - whether chronic post traumatic stress disorder a disease of gradual onset is a question of fact - insufficient evidence to determine whether symptoms notified by the appellant sufficient to indicate onset of post traumatic stress disorder if so - fact that STC included infirmity of major depressive episode on certificate issued under s 10B(2)(a) on basis of appellant's notification of condition of depression means appellant gave notice of injury for the purpose of the sub-section - insufficient evidence to determine whether that notice can be regarded as notice of an injury capable of causing the infirmity of post traumatic stress disorder - matter delegated to a Member of the Full Bench to take further evidence in advance of a further hearing before the Full Bench Legislation Cited: Criminal Appeal Act 1912 Industrial Relations Act 1996 Police Act 1990 Police Regulation (Superannuation) Act 1906 Superannuation Administration Act 1996 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Amalgamated Wireless (A/sia) Ltd v Philpott (1961) 110 CLR 617; [1961] HCA 31 Australian Conveyor Engineering Pty Limited v Mecha Engineering Pty Limited (1998) 45 NSWLR 606 Australian Education Union v Department of Education and Children's Services (2012) 285 ALR 27; 86 ALJR 217; [2012] HCA 3 Bennett v SAS Trustee Corporation (Full Bench, unreported, IRC 571 of 2010, 9 December 2010) Caterpillar Australia Pty Ltd v Industrial Court of New South Wales (2009) 255 ALR 131 Commissioner of Police v SAS Trustee Corporation (2002) 131 IR 243; [2002] NSWIRComm 31 Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 382 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; 35 ALR 151; [1981] HCA 26 Deputy Federal Commissioner of Taxation for the State of South Australia v Ellis & Clark Limited (1934) 52 CLR 85 Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; [1964] HCA 34 Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 Hazlewood v SAS Trustee Corporation [2008] NSWIRComm 215 Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269 Jemema Gas Networks (NSW) Ltd v Mine Subsidence Board [2010] NSWCA 146; (2010) 175 LGERA 16 John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82 Jones v Wrotham Park Settled Estates [1980] AC 74 Jovic v SAS Trustee Corporation [2007] NSWIRComm 102 Lyons v Master Builders Association of NSW Pty Limited (2003) 25 NSWCCR 422 McGhee v Commissioner of Police (No 2) [2010] NSWIRComm 165; (2010) 200 IR 22 McKenzie v SAS Trustee Corporation [2009] NSWIRComm 177 Morley v SAS Trustee Corporation [2007] NSWIRComm 90 Posner v Collector for Inter-State Destitute Persons (Vic) (1946) 74 CLR 416 SAS Trustee Corporation v Hazlewood [2009] NSWIRComm 157; (2009) 188 IR 174 R v Kemp [1957] 1 QB 399; [1956] 3 All ER 249; (1956) 40 Cr App Rep 121 R v Young Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 Vickers, Sons & Maxim Ltd v Evans [1910] AC 444 Wollongong Fabrications Pty Ltd v Ramsbottom [2006] NSWCA 279 Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 Category: Principal judgment Parties: Phillip Woollard (Appellant) SAS Trustee Corporation (Respondent) Representation: Mr P O'Rourke of counsel with Mr M Hammond of counsel (Appellant) Mr T Ower of counsel with Ms K Balendra of counsel (Respondent) Walter Madden Jenkins, Solicitors (Appellant) SAS Trustee Corporation (Respondent) File Number(s): IRC 660 of 2010 Judgment OF THE PRESIDENT 1On 28 July 2010, Phillip Woollard, a former member of the NSW Police Force, filed an application to appeal from a decision of the SAS Trustee Corporation ("STC" or "the respondent") whereby the respondent declined to include "chronic post traumatic stress disorder" in a certificate of incapacity issued to Mr Woollard under s 10B(2) of the Police Regulation (Superannuation) Act 1906 ("PRS Act"). 2Mr Woollard joined the Police Force in 1984 and was medically discharged in 1998 pursuant to ss 8 and 14 of the PRS Act (that is, a medical discharge not arising out of hurt on duty). At the time, Mr Woollard initially considered his incapability for police duties to be the result of having contracted Lyme Disease whilst on duty, but that application was subsequently withdrawn and Mr Woollard was discharged as medically unfit with Chronic Fatigue Syndrome, an illness not attributed to hurt on duty. 3In November 2005, the appellant applied to the respondent for a "hurt on duty" superannuation allowance pursuant to ss 10 and 10B of the PRS Act. The appellant claimed post traumatic stress disorder. On 22 May 2006 the Police Force advised the respondent that, in its view, the appellant "did not notify the Commissioner prior to his retirement and within 6 months of the injury occurring". This was a reference to the statutory requirement of notification prescribed by s 10B(2)(a) of the PRS Act. 4On 31 May 2006 the respondent advised the appellant of the lack of notification alleged by the Police Force and invited further evidence as to whether the requirements of s 10B(2)(a) had been met. Despite the provision of a medical report indicating that the appellant suffered from post traumatic stress disorder at the time of his discharge the respondent reiterated in December 2007 that there had been no compliance with s 10B(2)(a). 5There were further communications between the parties and on 10 February 2010, the respondent determined (in terms of s 10B(2) of the PRS Act) that the appellant was incapable, from the infirmity of mind, namely "major depressive episode", of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act 1990 at the time of his retirement, but the respondent declined to certify chronic post traumatic stress disorder as an infirmity because the Police Force had continued to indicate the appellant had not complied with s 10B(2)(a). As mentioned earlier, the appellant now appeals that determination and seeks to add the infirmity of chronic post traumatic stress disorder to the s 10B(2) certificate. 6The significance of the claim by the appellant for wishing to add chronic post traumatic stress disorder to the s 10B(2) certificate should be explained. Section 10B(2) of the PRS Act provides: (2) An annual superannuation allowance or gratuity must not be granted under section 10 to a former member of the police force who resigned or retired unless: (a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, and (b) if the regulations so require, the notification was in the prescribed form, and (c) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was incapable, from that infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member's resignation or retirement. 7Section 10B(3) provides: (3) Where a member or former member of the police force is duly certified under subsection (1) or (2), the Commissioner of Police shall: (a) decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be, and the date or dates on which the member or former member was hurt on duty, and (b) give the member or former member written notification of the decision. 8On 14 April 2010, the Commissioner of Police, in terms of s 10B(3)(a) of the PRS Act, determined that the certified infirmity of "major depressive episode" was not caused by the appellant being hurt on duty. That determination is the subject of an appeal pursuant to s 21 of the PRS Act to the District Court. In determining that appeal, the District Court is bound to accept the existence of the certified infirmity at the relevant time (namely, date of discharge/retirement). 9For it to set aside the Commissioner's decision and replace that decision with a decision that the certified infirmity was caused by the appellant being "hurt on duty", the District Court has to determine whether or not the certified infirmity was caused by the appellant being injured "in such circumstances as would, if the [appellant] were a worker within the meaning of the Workers Compensation Act 1987, entitle the member to compensation under that Act": section 1 of the PRS Act, definition of "hurt on duty", and also see ss 4 and 9 of the Workers Compensation Act 1987. 10As the appellant candidly submitted: Put bluntly, an infirmity described as a "post traumatic stress disorder" either by itself or in combination with "major depressive disorder" will likely be easier to prove before the District Court as an infirmity caused by the Appellant being hurt on duty. Ultimately, in the event that the Appellant is successful in establishing an infirmity as being caused by the Appellant being hurt on duty, the Appellant becomes entitled to a superannuation allowance described in s.10 PRS Act. 11The appeal was allocated to Haylen J. It became apparent to his Honour early in the proceedings before him that a critical issue was the proper application of the decision of the Full Bench in SAS Trustee Corporation v Hazlewood [2009] NSWIRComm 157; (2009) 188 IR 174. His Honour referred the matter to the President pursuant to s 193 of the Industrial Relations Act 1996 ("IR Act") for his consideration as to whether a Full Bench should be constituted to consider five questions. The President, on 27 May 2011, determined that a Full Bench should deal with the questions referred. The questions are as follows: (1)Does the decision of the Full Bench in SAS Trustee Corporation v Hazlewood (2009) 188 IR 174 give the Respondent any scope to proceed to certify an infirmity claimed under s 10B(2) Police Regulation (Superannuation) Act 1906 contrary to the advice of the Commissioner of Police that notice of injury under s 10B(2)(a) has not been given? (2)Does the decision of the Full Bench in Hazlewood reveal a ratio relating to the requirements for notice under s 10B(2)(a) between any or any two of the learned Justices? (3)Whether the decision of the Full Bench in Hazlewood is wrongly decided or, alternatively, is appropriately distinguished from the present case? (4)Whether the Respondent is required to satisfy itself on the question of fact as to whether or not notice of injury was given as required by s 10B(2)(a) Police Regulation (Superannuation) Act 1906 independently of any advice or opinion expressed on the question by the Commissioner of Police or by a person employed by the NSW Police Force? (5)In light of the above, is the evidence in the present matter sufficient to constitute substantial compliance with s 10B(2)(a) in respect of the claimed infirmity of Post Traumatic Stress Disorder? Validity of the Reference 12At the outset of the proceedings before the Full Bench it was raised with the parties whether the Full Bench possessed the necessary jurisdiction to deal with the matters raised pursuant to s 193 of the IR Act. In that respect, the parties' attention was drawn to the decision of the Court of Appeal in John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82 at [85]-[97] where it was held, in effect, that in dealing with a matter in the Court's criminal jurisdiction by way of a reference under s 193, the Full Bench mistakenly asserted jurisdiction. 13These proceedings do not concern criminal matters. However, some attention needs to be paid to the Court's jurisdiction under the Superannuation Administration Act 1996 ("the SA Act") and whether that has any implications for whether the Full Bench may deal with the five questions in circumstances where they were referred under s 193 of the IR Act. 14Section 88 of the SA Act provides the Court with the jurisdiction to deal with appeals from a person aggrieved by a determination of STC or an STC disputes committee under s 67 of the SA Act: 88 Appeals (1) A person aggrieved by a determination of STC or an STC disputes committee under section 67 (relating to determination of disputes) may appeal against the determination to the Industrial Relations Commission in Court Session (the Commission). (2) The appeal must be made within 6 months after the appellant is notified of the determination or within such further period as the Commission allows. (3) In dealing with the appeal, the Commission may exercise any function that could have been exercised by STC or the STC disputes committee, as the case may be, in making the determination the subject of the appeal. (4) In dealing with the appeal, the Commission is to have regard to this Act and any other relevant provisions regulating the superannuation scheme concerned and such other matters as it considers to be relevant. (5) In dealing with the appeal, the Commission is not bound by the rules of evidence and may inform itself in any manner it thinks fit. (6) The final determination made by the Commission on the appeal is to be given effect to as if it were a determination of STC. 15An appeal to the Court under s 88 has generally been regarded as a hearing de novo: see Jovic v SAS Trustee Corporation [2007] NSWIRComm 102; McKenzie v SAS Trustee Corporation [2009] NSWIRComm 177; Morley v SAS Trustee Corporation [2007] NSWIRComm 90. 16Section 153(1)(h) of the IR Act confirms that the function of the Commission in relation to proceedings under s 88 of the SA Act may only be exercised by the Commission in Court Session, that is, the Industrial Court: see s 151A. Section 153(2) provides that the functions of, relevantly, an appeal from a member of the Industrial Court may be exercised only by a Full Bench. 17The proceedings before the Full Bench is not an appeal. It is a reference pursuant to s 193. That section provides: 193 References by members to Full Bench (1) A member of the Commission may refer to the President, for decision by a Full Bench of the Commission: (a) a matter (or part of a matter) before the member, or (b) a question arising in a matter before the member. (2) The President is to determine whether or not a Full Bench should deal with the matter or question. (3) The Full Bench may: (a) hear and determine the matter or question, or (b) refer the matter or question back to the member, with such directions or recommendations as the Commission considers appropriate. The Full Bench may hear and determine a part of the matter and refer the remainder back to the member. (4) This section extends to a reference by a member who is the Chairperson of an Industrial Committee of a matter before the Committee. 18In accordance with s 193(1)(b), in the matter of an appeal under s 88 of the SA Act, the judge at first instance referred certain questions to the President for his consideration as to whether or not a Full Bench should deal with the questions referred. The questions include the question of whether the decision in Hazlewood was wrongly decided. The other questions bear a relationship to that principal question. 19There is nothing in the SA Act or the IR Act to suggest that the Full Bench is without jurisdiction to deal with the questions referred. In John Holland the Court of Appeal took the view that s 193 could not apply to the exercise of the Court's criminal jurisdiction because s 196 of the IR Act applies the Criminal Appeal Act 1912 to an "appeal or reference" to the Full Bench. See also Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 at [5] per Spigelman CJ. That consideration does not arise in the present proceedings. 20Section 193 refers to a "question arising in a matter before the member." The question is not limited to a question of law and may include a question of fact or a mixed question of fact and law. The five questions referred happen to be questions of law, but unlike s 5AE of the Criminal Appeal Act s 193 does not limit referred questions to questions of law and consequently the Full Bench may also determine questions of fact or mixed questions of fact and law: see the discussion by Basten JA in Rockdale Beef at [150]. 21The facts upon which the referred questions are to be determined were agreed between the parties. As I understand it, no other facts are relevant to the determination of the referred questions. The facts are contained in an Application Book, a Supplementary Application Book and a report of a psychiatrist, Dr Lewin, dated 24 June 2009, which appears to have been omitted from the Application Books inadvertently. 22In addition to the above, it is to be noted that both the appellant and the respondent, in supplementary written submissions requested by the Full Bench, agreed that there was no jurisdictional impediment to the Full Bench determining the five referred questions. Decision in Hazlewood 23It may be seen that what lies at the centre of the dispute giving rise to the reference is whether or not the appellant notified the Commissioner of Police before the appellant's resignation or retirement and within six months of receiving the injury that caused the appellant's infirmity of body or mind, namely, chronic post traumatic stress disorder, of that injury: s 10B(2)(a) of the PRS Act. 24The respondent asserted that it was unable to certify the infirmity of chronic post traumatic stress disorder as sought by the appellant as this would be "contrary to the bona fide positive assertion by the Commissioner of Police that he had not been relevantly notified". The respondent relies, inter alia, upon the reasoning of the Full Bench in Hazlewood. Hence the questions on the Reference concerning that judgment. 25Hazlewood concerned an appeal by STC from a judgment of Marks J. His Honour had determined that Mr Hazlewood, a former police officer, was incapable due to infirmity of mind constituted by post traumatic stress disorder from exercising the functions of a police officer on 5 February 1998, being the date of his medical discharge from the New South Wales Police Force: Hazlewood v SAS Trustee Corporation [2008] NSWIRComm 215. Staff J in his judgment on the appeal described the background in the following terms: [53] At the time of his medical discharge, the respondent did not claim that any of his specified incapacitating medical conditions of alcohol dependence, depression and paranoid personality traits were caused by his police duties. Accordingly, his claimed infirmities were certified pursuant to s 8 (allowance payable except where member hurt on duty) of the Police Regulation (Superannuation) Act 1906 ('the Act') and his annual superannuation allowance entitlement (72.75 per cent of salary) was paid pursuant to s 7 of the Act. [54] The annual superannuation allowance payable for non hurt on duty infirmities is potentially less generous than that payable for hurt on duty infirmities. Pursuant to s 10 of the Act, there is potential for an increase in benefits of up to 100 per cent of the former salary of office, subject to certification that the infirmity was caused by police duties. [55] In 2001, the respondent applied to the appellant to have the various medical conditions referred to above, certified under s 10B(2) of the Act. The construction of this subsection of the Act, which deals with the pre-conditions to be satisfied in order for a former member of the police force who resigned or retired to receive an annual superannuation allowance or gratuity, is central to the outcome of this appeal. If successful, the respondent's annual superannuation allowance would have increased. [56] On 26 June 2003, the appellant duly certified the respondent as suffering from the infirmities of alcohol dependence, depression and paranoid personality traits pursuant to s 10B(2) of the Act. The Commissioner of Police then had a duty under the Act to decide whether the infirmities certified by the appellant under s 10B of the Act were caused by his police duties (hurt on duty) and to give the member written notification of the decision (s 10B(3) of the Act). The Commissioner of Police determined on 12 August 2003 that the abovementioned infirmities were not hurt on duty infirmities and the respondent has appealed that decision to the District Court (s 21(1)(b) of the Act). That appeal is currently pending. [57] On 18 August 2005, the respondent applied for the condition of 'chronic PTSD' to be added to the s 10B(2) certificate issued on 26 June 2003. The appellant rejected this application and determined a dispute under s 67 of the Superannuation Administration Act 1996 ('the SA Act') on the grounds that, first, the respondent had not complied with the 'notice' requirement prescribed by s 10B(2)(a) of the Act and, secondly (assuming that he did satisfy the notice requirement), the claimed additional condition was not causative of the respondent's inability to discharge his duties of office at the time of his medical discharge. The respondent appealed that decision pursuant to s 88 of the SA Act... 26As Staff J observed at [59], "[t]he principal issue for determination in this appeal is whether his Honour's decision upholding a claim by the respondent that he was entitled to a superannuation benefit, which was based on a claim by the respondent that he was suffering from a condition of PTSD at the time of his discharge from the police force, was correct." A critical issue in the appeal was whether the respondent met the first condition in s 10B(2)(a) of the PRS Act, namely, whether he had notified the Commissioner of Police within six months of receiving his injury, which caused his infirmity of mind (post traumatic stress disorder), of that injury. 27In Hazlewood, there were three separate judgments. On the relevant issue of whether there had been notification in accordance with s 10B(2)(a) of the PRS Act, I found as follows: [32] Despite the palpable unfairness of it, the position taken by STC in these proceedings has to be accepted as correct. It is clear that the respondent was suffering from multiple infirmities, including PTSD, at the time of his discharge. The Police Commissioner had accepted there had been notification of undoubtedly associated conditions of alcohol dependence, depression and paranoid personality traits, but the Commissioner's advice was that there was no notification of an injury in respect of PTSD. There was no notification because at the time Mr Hazlewood was not aware he was suffering from PTSD. I wish to make it clear that I do not regard the PTSD suffered by Mr Hazlewood as a 'latent' condition. It was not as though the condition was dormant at the time of the respondent's discharge; it was simply the case that the condition existed and, in my opinion based on the finding of Marks J, had manifested itself, but the condition had not been diagnosed. [33] Regrettably, nevertheless, in my opinion STC is unable to go behind advice provided by the Commissioner as to whether or not an injury had been notified. To require STC to do so would be entirely impracticable, as the Commissioner has access to and control of all records associated with injury notifications and there is a clear demarcation under the statute between the functions of STC and the functions of the Police Commissioner under s 10B of the PRS Act: Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 31; (2004) 131 IR 243 at [54] - [57]. STC is obliged to accept the advice of the Commissioner on its face regarding notification. 28I also stated: [39] It follows from what Marks J found that if a traumatic stressor event may be regarded as an injury for the purposes of s 10B(2)(a), it is arguable that the Commissioner was notified by Mr Hazlewood of an injury that caused his PTSD. ... [42] In my opinion, on the evidence before Marks J, Mr Hazlewood's experiences in the police force were traumatic; they produced trauma, that is, a psychic injury such as depression or PTSD. Depression was accepted by the Commissioner, and in turn by STC, as having been notified as an injury. However, the finding by Marks J that traumatic stressor events be regarded as injuries for the purpose of s 10B(2) cannot be sustained. It does not necessarily follow that a person exposed to a traumatic stressor event will suffer trauma in the form of a psychic injury. [43] In other words, although Mr Hazlewood was exposed to traumatic stressor events and as a consequence suffered psychic injuries including PTSD, he failed to recognise, or have diagnosed, that injury and therefore failed to notify it to the Police Commissioner. Unfairly, I consider, he is now deprived of being provided with the opportunity of having STC certify his incapacity caused by PTSD. However, simply because a police officer is exposed to a traumatic stressor event cannot, of itself, be regarded as an injury unless it can be demonstrated the event resulted in actual injury, usually of a psychic nature. Otherwise, police officers who, because of the nature of their work, regularly witness traumatic stressor events, would be regarded as suffering an injury each time such an event occurred. [44] I consider Marks J erred in finding that traumatic stressor events be regarded as the injuries. 29Walton J, Vice-President found: [49] I have had the opportunity to read the draft judgments of Boland J, President, and Staff J in this matter. [50] I agree with the orders proposed by their Honours and their reasons as to why leave to appeal should be granted and the appeal upheld on the ground that the respondent had failed to meet the requirements for notice in s 10B(2)(a) of the Police Regulation (Superannuation) Act 1906. [51] I would propose to make one brief observation. A claim for an annual superannuation allowance under s 10B will fail if the Commissioner of Police bona fide certifies that the claimant has not provided the requisite notice of having received the injury that is claimed to have caused the claimant's infirmity of body or mind, within the prescribed period in s 10B(2)(a). The Commissioner of Police so certified in this matter, and the appellant must, therefore, succeed. 30Staff J at [89]-[92] relevantly stated: [89] The critical issue in respect of which the respondent has failed was the lack of notice required pursuant to s 10B(2)(a) of the Act. In my view, the contention by the respondent that there was substantial compliance with the requirements to give notice because the respondent advised the Commissioner of Police of traumatic events, is misconceived. There is a difference between exposure to these traumatic events and injurious consequences. Marks J determined that the respondent had PTSD at the time of his discharge. In my view, the section is applicable to PTSD. If an injury causing the PTSD had been notified prior to discharge, the respondent would have been entitled to have the infirmity causing his incapacity certified. [90] There needs not only to be notice of the fact of a circumstance, that is, a physical circumstance which may be constituted by the reporting of an event and the existence of a condition, for example, depression, but also a communication that there is a connection between these two events. In other words, there needs to be notification given by a police officer or former police officer or his medical representatives, that the events which have occurred are in some way impacting upon him physiologically, or in some other way that has the capacity of manifesting in the ultimate condition. [91] What the legislation requires is notification of an injury, which could include either a physical wound or psychic injury such as depression, which the police officer claims caused the infirmity rendering the officer incapable of performing his or her duties. [92] In this case, even though the police officer said that he was depressed, he also needed to add that this was because of what happened to him whilst carrying out his police duties, or consequence of it, in order to meet the requirement of s 10B of the Act. What is required is some evidence from the police officer, or his medical practitioner, to this effect. In this matter, the respondent had received extensive psychiatric treatment from Dr McGrath before his resignation. It was incumbent upon the member to put forward that information. In his application for medical discharge, the respondent stated that the depression was caused by alcohol related problems. There was no evidence that the depression was related to any other factor. And further, at [99]-[100]: [99] On its face, the appellant has no independent role in determining whether or not notice has been given in accordance with s 10B(2)(a) of the Act. This raises the question as to whether it would be inappropriate, from the statutory viewpoint, for the appellant to go behind the notification given, or alleged to have been given to the Commissioner of Police, to determine if notice had, or had not, been given. In respect of this matter, an examination of the material found in the application for medical discharge may disclose elements of a condition that should be treated as being referable to a statement of advice as to the onset, or the existence of PTSD, and therefore constitute notice of the requisite kind. [100] Ultimately, it is a question of fact as to whether or not notice was given. In this regard, the appellant is reliant upon the advice and information it receives from the Commissioner of Police. The Commissioner of Police, as employer, has access to employment, sick leave and other records of a police officer. As such, he is in a position to assess and record the circumstances causing injury. Section 10B(2)(a) of the Act nominates the Commissioner of Police as the person to be notified as a prerequisite to benefits being payable. In circumstances where the Commissioner of Police positively asserts no notification has occurred with regard to the claimed infirmity and no records are produced to prove otherwise, which was the case here, there is no scope for the appellant to unilaterally decide that the respondent's non-compliance shall be disregarded. 31The relevant practical effect of the judgment in Hazlewood is that STC is reliant on the advice of the Commissioner as to whether notice was given of the injury in accordance with s 10B(2)(a) of the PRS Act and STC has no independent role in determining whether notice was given. I was of the view that STC was unable to go behind advice provided by the Commissioner as to whether or not an injury had been notified. 32Hazlewood also dealt with the form of notice referred to in s 10B(2)(b). At [77]-[79] Staff J addressed the prescribed form: [77] Pursuant to an amendment to the Police Superannuation Regulation 1984 ("the 1984 Regulations"), from 23 November 1984 a form was prescribed for the purpose of s 10B of the Act. Prior to that date, s 10B of the Act required the notification of 'the nature of that injury'. There was no prescribed form prior to 1984. Pursuant to cl 6 of the 1984 Regulations it was provided that a notification of injury under s 10B(2)(a) of the Act 'shall be in or to the effect of' a form contained in Schedule 3 of the Regulations. I observe that there was no entitlement to the benefit claimed by the respondent prior to 1979. Between 1979 and 1984, s 10B(2)(a) of the Act required the notification of 'the nature of that injury' only. [78] The Schedule 3 form commenced with the following: Form to be used for notification of injury. Report of injury received whilst on duty, whilst travelling to or from duty, or whilst participating in organised police sport. After requiring details of the police officer, the form asks for 'details of incident which resulted in injuries being received" and then the "nature of injuries', specifying that 'wherever possible full medical description of injury should be set out.' The form then seeks details of the name of the doctor consulted, witnesses, to whom the incident was reported, and a form of verification that the incident occurred. [79] There was no evidence that the respondent completed the Schedule 3 form whilst he was a serving police officer, or within six months of his medical retirement for the purposes of contending that he was suffering from PTSD. 33His Honour returned to the issue at [104]-[111]: [104] It is appropriate before leaving this aspect of the appeal, to briefly address whether the Schedule 3 form of notification is still required. It was not the appellant's case that strict compliance with the form was required. The appellant acknowledged that such an approach would be contrary to s 80 of the Interpretation Act 1987. It conceded that what was required was substantial compliance as one of the pre-requisites of s 10B(2) of the Act. [105] The Regulations introducing the Schedule 3 form was repealed in 1995 and a savings provision was enacted at the same time. Relevantly, the Police Superannuation Regulation 1995 provided: Repeal 25. (1) The Police Superannuation Regulation 1984 is repealed. (2) Any act, matter or thing that, immediately before the repeal of the Police Superannuation Regulation 1984 had effect under that Regulation, is taken to have effect under this Regulation. [106] The Police Superannuation Regulation 2000 repealed the Police Superannuation Regulation 1995. Relevantly, it provided: 24 Savings Any act, matter or thing that, immediately before the repeal of the Police Superannuation Regulation 1995 under section 10 (2) of the Subordinate Legislation Act 1989 had effect under that Regulation, is taken to have effect under this Regulation. [107] The Police Superannuation Regulation 2000 was repealed by the Police Superannuation Regulation 2005 and contained a similar savings provision to that found in the Police Superannuation Regulation 2000. [108] The appellant submitted that the savings provisions as found in the various Police Superannuation Regulations, as set out above, saved the Schedule 3 form which came into existence through the 1984 Regulations. It follows, so it was submitted, that the form continues to have effect through the savings provisions as found in the Police Superannuation Regulation 1995, the Police Superannuation Regulation 2000 and the Police Superannuation Regulation 2005. [109] In short, from 1967 when the respondent was attested as a police officer, up to 21 November 1979, there was no equivalent of s 10B(2) in the Act and, therefore, there was no entitlement to an annual superannuation allowance. From 21 November 1979 to 22 November 1984, an entitlement arose for an annual superannuation allowance. However, there was no prescribed form for notice under s 10B(2)(a) of the Act. On 27 November 1984, up until 1 September 1995, the prescribed form for notice remained in place. From September 1995, up until 5 February 1998, being the date of the respondent's medical retirement, the appellant contended that the form remained in place, being saved by the Police Superannuation Regulation 1995 savings provisions. [110] Section 30 of the Interpretation Act 1987 which deals with the effect of amendment or repeal of Acts and statutory rules provides in s 30(2)(d) as follows: 30 Effect of amendment or repeal of Acts and statutory rules ... (2) Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect: ... (d) the operation of any savings or transitional provision contained in the Act or statutory rule. [111] Section 3 of the Subordinate Legislation Repeal Act 1985, repealed various statutes and subordinate legislation. However, the Subordinate Legislation Act 1989, pursuant to s 6, excluded the requirement for regulatory impact statements in certain cases. Such cases included, pursuant to Sch 3, matters of a savings or transitional nature. In my view, the form that was prescribed by the 1984 Regulations therefore remained in force in accordance with the savings and transitional provisions after the repeal of the Regulations. It follows that the respondent failed to comply with s 10B(2)(1a). 34In Hazlewood I noted at [45] that Staff J had found that Schedule 3 remained in force in accordance with the identified savings and transitional provisions that applied after the repeal of the Regulation. It may reasonably be assumed that his Honour did not disagree with Staff J's finding. Walton J, as I noted earlier, agreed with the reasons of Staff J and myself and so it must be accepted that Walton J agreed that Schedule 3 remained in force. It follows that an applicant must substantially comply with the prescribed form of notice in force after 23 November 1984. 35In the result, the decision of Marks J in Mr Hazlewood's favour was overturned. The orders made by the Full Bench in Hazlewood were that: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The decision of Marks J that Mr Hazlewood was successful in his appeal pursuant to s 88 of the Superannuation Administration Act 1996 is quashed. (4) Costs are reserved. (5) Any submissions by the appellant on costs shall be filed within 14 days. The respondent will have a further 14 days to file submissions on costs and unless either party applies to be heard on costs, the Full Bench will determine any issues on the papers. Leave 36It was made clear to the parties, and it was accepted by them, that any challenge to the correctness of Hazlewood required the Court's leave. Accordingly, leave is required in respect of that part of the third question that asks whether the decision of the Full Bench in Hazlewood was wrongly decided. 37For the reasons that follow I consider that leave to challenge the correctness of Hazlewood should be given. I have determined that Hazlewood was wrongly decided Case for the appellant The third question 38The appellant first addressed the third question and that is the question that requires leave. The appellant acknowledged that there should be a departure from Hazlewood only if the Court was of the view that the decision in that case was "plainly wrong" and, such an error being identified, there were "compelling reasons" to depart from the earlier decision: Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504; Jemema Gas Networks (NSW) Ltd v Mine Subsidence Board [2010] NSWCA 146; (2010) 175 LGERA 16; McGhee v Commissioner of Police (No 2) [2010] NSWIRComm 165; (2010) 200 IR 22. 39The appellant referred to the beneficial nature of the PRS Act. It was submitted that the functions to be performed by the respondent in its administration of the Police Superannuation Fund under the SA Act and the respondent's duties consistent with those functions were onerous. Reference was made to ss 49 to 51, 57, 66 to 68 and 77 of the SA Act. To properly fulfill those functions and duties, it was submitted parliament had given the respondent extensive powers to investigate and obtain information, to obtain authorities to obtain information and had allowed the respondent to give due weight to information or documents obtained by it without being constricted by the rules of law relating to evidence. 40The appellant submitted that whether the Commissioner was notified in terms of s 10B(2)(a) was a question of fact for the respondent to determine. This question of fact arose only at a time when a former police officer seeks a superannuation allowance pursuant to s 10 of the PRS Act and it was necessary to determine whether the former police officer satisfied the definition of "disabled member of the police force". That question involves a consideration of s 10B(2). That consideration may arise many years after the former police officer's resignation or retirement. In the present case the question arises almost eight years after discharge, it was submitted. 41It was submitted that by contrast with the broad-ranging onerous responsibilities cast upon the respondent, the role of the Commissioner was limited. In this respect it was submitted: There is nothing in s 10B(2) PRS Act or elsewhere which compels the Commissioner (or for that matter the NSW Police Force) to do anything relating to the factual question of notification to the Commissioner of injury. There is no legislative obligation upon either the Commissioner or the NSW Police Force to write to the Respondent expressing a view as to notification. Nothing compels either entity to ensure any expressed view is accurate. Nothing compels either entity to base an expressed view on any (or any complete) search of records. The Commissioner is not compelled to act honestly, to act in the best interests of a former police officer or to act at all. The Commissioner is not compelled to determine disputes under the Act. The Commissioner is not compelled to exercise any degree of care, skill and diligence let alone that which the STC must as identified in s 51(1)(b). The Commissioner is not compelled because it is not for the Commissioner to determine the questions of fact raised in s 10B(2) PRS Act. Given the demarcation between the roles and responsibilities of the Respondent and the Commissioner, it is contrary to the intention of Parliament for the Respondent to rely, without more, in determining the question of notice of injury upon "advice" given by a person employed by the NSW Police Force as to that notification. 42The appellant proceeded to examine each of the judgments in Hazlewood. In respect of my judgment, the appellant contended it was "plainly wrong", in that: (a)His Honour was not taken to and, apparently, was unaware of the extensive obligations and powers provided to the Respondent ... to determine factual matters and resolve disputes arising under the PRS Act. The question of notice to the Commissioner is a question of fact to be determined by the Respondent. That determination may give rise to a dispute which, again, it is the Respondent's obligation to determine. (b)The determination of the question of fact of notification (and the resolution of a dispute as to that determination) is part and parcel of the administration of the PSF [Police Superannuation Fund] which is described among the principal functions of the Respondent. The Respondent has no power, consistent with s.77, to delegate this task to the Commissioner or to an employee of the NSW Police Force. (c)The Commissioner of Police has no obligation to advise or to advise accurately based upon a search of records, thorough or not. Indeed, given the lapse of time between a former police officer's resignation or retirement and the need to determine the question of fact as to notification whatever records may have been held by the Commissioner or the NSW Police Force may be lost, incomplete or destroyed. In those circumstances, the advice of the Commissioner or of the NSW Police Force would, practically, be useless. (d)While His Honour correctly identifies that there is a demarcation between the roles of the Respondent and the Commissioner, His Honour incorrectly identifies that demarcation as justification for the Respondent allowing the Commissioner (or an employee of the NSW Police Force) to usurp the fact-finding job that falls to the Respondent. (e)If it was to be the task of the Commissioner to determine whether or not the Commissioner had been given relevant notice it would have been a simple and straightforward thing for the Parliament to have said so in the legislation and to have made allowance for any relevant appeal from that determination. (f)To allow advice from the Commissioner or the NSW Police to be determinative of the question of notification is to allow the Commissioner to breach the line of demarcation and to enter into the decision-making province of the Respondent. (g)His Honour, with respect, fails to acknowledge the fact that some or all relevant documentation referable to the question of notification may be obtainable from sources other than the NSW Police including, but not limited to, the former police officer himself or herself and the records of relevant treating medical practitioners. (h)At the time the question of notification arises, the Respondent may be provided with (and would be entitled to rely upon) evidence, both medical and otherwise, which assists the Respondent in properly understanding the nature of the injury notified to the Commissioner. Such evidence would not be available to the Commissioner. (i)Consistent with the observations by Wright P in CoP v SASTC [Commissioner of Police v SAS Trustee Corporation and another [2002] NSWIRComm 382] and the High Court in Finch [Finch v Telstra Super Pty Ltd [2010] HCA 36], Parliament should be assumed to intend that the decisions of the Respondent are not to be immunized from judicial control without clear contrary language in the statute. No such language appears in either the PRS Act or the SA Act. The notification is a question of fact to be determined by the Respondent and that determination is subject to judicial review: s.88 IR Act [sic]. 43In respect of the judgment of Walton J, the appellant noted his Honour's reference to "bona fide certification" and speculated whether that may have been an attempt to "alleviate the arbitrariness of the reasoning process of Boland J". However, the appellant took exception to Walton J's reference to "certification", contending that: The plain words of s 10B(2) do not require any positive act by the Commissioner of Police let alone any act amounting to "certification". Any process of fact-finding undertaken by the Respondent in relation to notice should be on the basis that the Respondent is entitled, consistent with the powers given it under the SA Act, to assess all relevant evidence and to give to that evidence the weight the Respondent sees as appropriate. 44It was submitted that used as a gloss upon s 10B(2) the concept of "bona fide certification" imposed upon a person potentially entitled "an extraordinary means of challenge to [that person's] entitlement": Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 382 per Wright J at [44]. It was submitted: Used as a mechanism to provide to the Commissioner a role unintended by Parliament while, at the same time, binding the fact-finding hands of the Respondent is "clearly wrong". This is especially so when, in a scheme which has otherwise carefully allowed for appropriate judicial review of decisions made by the Respondent and by the Commissioner such "bona fide certification" would appear unappellable [sic]. 45In respect of the judgment of Staff J, the appellant acknowledged his Honour had allowed for a factual investigation conducted by the respondent that took account of information and documents beyond any positive assertion made by the Commissioner. However, to the extent that his Honour appeared to conclude that the Commissioner's positive assertion was some form of "rebuttable presumption", it was submitted his Honour was in error in that his Honour had wrongly elevated the opinion expressed by the Commissioner above other available evidence and given it an authority that was not provided for in the legislation. The appellant further submitted: Consistent with its obligations, the Respondent would need to investigate and obtain information relevant to the question of notice and to assess that evidence giving each item of evidence its appropriate weight. That may well mean that advice from the Commissioner is given weight in determining the question of notice. However, that is a fundamentally different proposition to the Respondent being obliged to start with the presumption that the Commissioner is correct in what the Commissioner asserts. ... [T]he Respondent is in a far better position than the Commissioner (or, as in the present case, an employee of the NSW Police Force) to assess documents and records relevant to notification. This is so because in addition to those documents and records (which, given the lapse of time, may or may not still be in the possession of the Commissioner or the NSW Police) the Respondent will likely have access to medical evidence and opinion contemporaneous with the pursuit of a determination under s 10B(2). Further, because of its statutory powers to gather information, the Respondent may well be able to obtain, either from the Appellant, the Appellant's treating medical practitioners or other sources, documents, records and information which may have been sent to the NSW Police Force prior to the Appellant's resignation or retirement and which are no longer in the possession of the NSW Police Force. The present case illustrates the above. The Respondent has available to it a substantial and expert body of medical opinion to the effect that at all relevant times up to and including discharge, the Appellant was likely acting under a misdiagnosis. Symptoms being reported by the Appellant were being treated as a consequence of a diagnosis of a physical complaint whereas, in fact, the Appellant was suffering a psychiatric condition. Evidence of that fact was, at the relevant time, available to the Respondent and not the Commissioner or the NSW Police. 46The appellant next dealt with the question of what constitutes notice of injury. In this respect, it was submitted notification was sufficient to satisfy s 10B(2)(a) if there was notification of an incident capable of causing injury and, ultimately, infirmity. Also, notification would be sufficient if there had been a report of symptomatology to the Commissioner, that symptomatology being causative of the relevant infirmity. 47The appellant submitted that in Hazlewood, Staff J applied a definition of "injury" unnecessarily narrow. In so doing, it was submitted, his Honour effectively read into s 10B(2)(a) a requirement for a factual determination very similar to the factual determination required of the Commissioner under s 10B(3). Such a narrow definition of "injury" was inconsistent with the purpose of the legislation, it was submitted. 48In the alternative, the appellant submitted Hazlewood was distinguishable. It was contended that contrary to the situation in Hazlewood there were a significant number of documents evidencing relevant notification of injury which have been ignored both by the Police Force employee providing "advice" and by the respondent. Further, it was submitted, the respondent asked the wrong question of the Police regarding the question of notice of injury and consequently the Police answered the wrong question. First question 49The first question was whether the decision in Hazlewood gives the respondent any scope to proceed to certify an infirmity claimed under s 10B(2), contrary to the advice of the Commissioner of Police that notice of injury under s 10B(2)(a) had not been given. 50The appellant submitted that the present case provided an example of circumstances where "advice" given by the Commissioner or by the Police Force was not a "bona fide" certification as contemplated by Walton J and an example of records being produced to prove otherwise than that which was positively asserted by the Commissioner or by the Police Force, as contemplated by Staff J. 51The appellant analysed the correspondence between the respondent and the Police Force regarding notification of the injury and contended that it demonstrated there was no "bona fide" certification by representatives of the Commissioner in advising the respondent that Mr Woollard had not complied with the provisions of the PRS Act in that he had not notified the Commissioner prior to his medical discharge and within six months of the injury occurring. It was submitted: When the reasonings [sic] of Walton J and Staff J are placed alongside the Respondent's obligations to act honestly in all matters (s.51(1)(a)), to exercise the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide (s.51(1)(b)), to ensure its functions are exercised in the best interests of persons entitled to receive benefits under the PSF (s.51(1)(c)), to do all things that are necessary or convenient to be done (s.57), to inform itself on any matter in such manner as it thinks fit (s.67) and having no legislative power to delegate its functions to the Commissioner, the Respondent must act contrary to the advice of the Commissioner. The Respondent has full scope to proceed to determine the question of notification and to certify the infirmity of "post traumatic stress disorder" in terms of s.10B(2) PRS Act. Second question 52The second question was whether the decision in Hazlewood revealed a ratio relating to the requirements for notice under s 10B(2)(a) between any or any two of the judges. The appellant submitted there was no consistency between the judges as to the role to be played by the Commissioner, or for that matter an employee of the Police Force. 53In the absence of any ratio it was submitted the Court was entitled to revisit and authoritatively determine that it was the respondent's responsibility to answer the question of fact raised by s 10B(2)(a) and to determine whether or not there had been substantial compliance with that provision. In doing so, it was submitted: [T]he Court is able to authoritatively state that the Respondent, consistent with its statutory obligations, is entitled to obtain any evidence relevant to the question and to give that evidence appropriate weight. The Respondent is entitled, in determining what relevant notification of injury was given, to look at the factual issue aided by hindsight and by evidence provided to it or obtained by it when a former member makes a claim for a superannuation allowance under s.10 and s.10B(2) PRS Act. Fourth question 54The fourth question was whether the respondent is required to satisfy itself on the question of fact as to whether or not notice of injury was given as required by s 10B(2)(a) of the PRS Act independently of any advice or opinion expressed on the question by the Commissioner of Police or by a person employed by the Police Force. The appellant submitted that question should be answered in the affirmative. Fifth question 55The fifth question was whether the evidence was sufficient to constitute substantial compliance with s 10B(2)(a) in respect of the claimed infirmity of post traumatic stress disorder. 56At [99] in Hazlewood, Staff J stated: [A]n examination of the material found in the application for medical discharge may disclose elements of a condition that should be treated as being referable to a statement of advice as to the onset, or the existence of PTSD, and therefore constitute notice of the requisite kind. 57The difficulty, the appellant submitted, was that notification (in whatever form) can be given by a police officer who, at the time, may not be aware of the full extent of his injury, or what his injury may become, and may well be acting on the advice of his medical practitioners who themselves are unsure about or have misdiagnosed the condition from which the police officer is suffering. Further, the condition may be one (as in the present case) where delayed onset of symptoms is a recognised complication. 58According to the appellant this highlighted why the respondent was entitled to assess evidence of notification contemporaneous with a police officer's career and was entitled to be guided as to the significance of that evidence by evidence provided to or obtained by the respondent at the time when the respondent was called upon to make the factual determination. The appellant submitted: The Respondent is entitled to cast its fact-finding net widely to discover relevant "elements of a condition" and is entitled to draw upon all relevant evidence in determining whether or not there is evidence of a former police officer notifying the Commissioner of a relevant injury. It is not necessary for there to be a causal link identified or claimed within the time frames contemplated by s 10B(2). Rather, the Respondent need only have credible evidence that the "elements" notified establish injury causative of the relevant infirmity. In those circumstances, it is sufficient for the Respondent to be satisfied either of an injurious event capable of causing the relevant infirmity or of the onset of symptoms capable of causing the relevant infirmity. It is fundamentally important, in determining the factual question of notification of injury, that the focus remains on either the injurious event or onset of symptoms. The diagnostic label attached to a symptom complex should not be seen as determinative especially when, as in the present case, there is now a substantial body of medical evidence available to the Respondent which identifies the symptoms complained about by the Appellant prior to his medical discharge as consistent with the infirmity of post traumatic stress disorder. Case for the respondent Third question 59The respondent observed that the correctness of Hazlewood had previously been raised in Bennett v SAS Trustee Corporation (Full Bench, unreported, 9 December 2010) and rejected. In rejecting leave to reargue Hazlewood, the Full Bench in Bennett relied upon the principles generally expressed in McGhee v Commissioner of Police (No 2). In short, it was submitted, the Court did not consider that the decision in Hazlewood was infected with "demonstrable error" or was "plainly wrong" and there were no "compelling reasons" to revisit it. 60The respondent submitted it was not suggested by the appellant that the decision in Hazlewood was contrary to another decision of the Court or per incuriam the decision of some other court of comparable standing. Rather, what was sought was to again construe s 10B(2) of the PRS Act notwithstanding the fact that the Court analysed the provision in depth in Hazlewood and declined to have the issues reargued in Bennett. Accordingly, the appellant's attempt to argue the correctness of Hazlewood should be rejected. It was further submitted the decision in Hazlewood was not distinguishable from the present matter. First question 61The respondent answered "no" to the first question. It was submitted by counsel that in Hazlewood, the Full Bench unanimously concluded that STC was reliant upon the information supplied by the Commissioner of Police on the question of notice of injury (Boland J at [32], Walton J at [51] and Staff J at [100]). Further, STC could not "go behind" a positive assertion by the Commissioner of Police (Boland J at [33], Staff J at [99] and, provided it was bona fide, Walton J at [51]) and unilaterally decide that the notice prerequisite had been satisfied. Accordingly, STC did not have an independent role in determining the question of notice pursuant to s 10B(2)(a). 62The respondent referred to the appellant's assertions that the Commissioner's advices were not bona fide and/or the Commissioner ignored relevant documents. However, it was submitted, none of the documents cited by the appellant would be sufficient to constitute notice of an injury causing the claimed infirmity of chronic post traumatic stress disorder. Accordingly, it was submitted, the advice of the Commissioner appeared to be bona fide and consistent with the contemporaneous documentary evidence. In the circumstances of the present matter the binding authority of Hazlewood dictated that the respondent had no scope to certify the claimed infirmity of post traumatic stress disorder. Second question 63The respondent submitted there was a clear consensus in Hazlewood on the legal requirements for notice under s 10B(2)(a) of the PRS Act. It was submitted that consensus reveals that: (i) notification of a traumatic stressor event, in the absence of alleged injurious consequences, was insufficient; and (ii) there must be substantial compliance with the form of notice referred to in s 10B(2)(b). Substantial compliance would dictate that the notification must, at the very least, be in writing and allege relevant injurious consequences, it was submitted. Counsel for the respondent submitted: Anything less than written notice of injurious consequences allegedly caused by an event/s in the course of duty within the time prescribed by s.10B (2)(a) would be a strained construction of the plain words of the section. Further support for this view can be found by considering the information required in the statutory form of notice prescribed by the regulations. The Full Bench view on this issue in Hazlewood was clearly correct and should be followed; as it was by Justice Backman in Shane Bennett v SAS Trustee Corporation [2010] NSWIRComm 78. Fourth question 64The respondent submitted it was bound by the advice received from the Commissioner of Police on this issue and, therefore, could not unilaterally make a decision contrary to that advice. From a practical perspective, it was submitted, there would be no impediment to an applicant attempting to persuade the Commissioner of Police to change his view on the question of notice. Given the powers of the Industrial Court pursuant to s 154 of the IR Act, an applicant could seek a declaration against the Commissioner of Police if initially unsuccessful through informal overtures. Fifth question 65It is common ground, the respondent submitted, that the appellant was not diagnosed with the claimed condition of chronic post traumatic stress disorder before his discharge from the Police Force. It was, therefore, impossible to have substantially complied with the notice requirement of s 10B(2)(a). The appellant's argument in this regard depended upon acceptance of a construction of "notice" that was rejected in Hazlewood, viz, that either notification of a potentially injurious event per se or relevant symptoms from unspecified cause was sufficient. This proposition should be rejected, the respondent submitted. 66In any event, it was submitted: [T]he appellant's symptoms that he now alleges to be caused by the misdiagnosis of Lyme's disease were initially said to be caused by tick bites in the course of duty. There was no allegation prior to discharge that the appellant's symptoms were caused by exposure to the traumatic events now said to be causative of post traumatic stress disorder. It would be an intolerably strained construction of s 10B(2)(a) to accept that it was substantially satisfied by the reporting of symptoms allegedly caused by completely different events. Accordingly, the evidence in the present matter is insufficient. Consideration Third question 67In order to be entitled to an annual superannuation allowance or gratuity under s 10 of the PRS Act, a former member of the police force who resigned or retired must have notified the Commissioner of Police before the member's resignation or retirement and within six months of receiving the injury which has caused the member's infirmity of body or mind, of that injury: s 10B(2)(a). 68The reason for this requirement is obvious: in order to become entitled to the superannuation allowance or gratuity for being hurt on duty, the former police officer has to establish some connection between the injury and his or her service in the police force. In the absence of establishing that connection, the respondent would be unable to certify that the former member was incapable of personally exercising the functions of a police officer at the time of the member's resignation or retirement. This is because in the absence of notification of the injury to the Commissioner, the respondent could not know whether the injury occurred during the officer's service with the police force and thus be capable of leading to the officer's infirmity at the time of resignation or retirement, or whether the injury occurred after resignation or retirement. 69Consistent with the need to know when the injury was claimed to have occurred, the language in s 10B(2) is mandatory; the superannuation allowance or gratuity must not be granted unless there is notification in accordance with s 10B(2)(a). The purpose is to ensure that only injuries that were incurred whilst the officer was on duty attract the superannuation benefit provided for by s 10. 70Whether the former officer notified the Commissioner of the injury in accordance with s 10B(2)(a) is essentially a question of fact to be determined by the respondent. In the normal course, in order to establish whether there was notification, the respondent would make an inquiry of the Commissioner. In the normal course, if the Commissioner advises that there was no relevant notification, that advice should be sufficient. However, there may be cases where, based on material the respondent may have received from the former officer for instance, including medical reports provided by the former officer to the Commissioner, the Commissioner's advice regarding the absence of notification is thrown into doubt. It may be a matter of interpreting those reports to determine whether, in fact, notification was given. 71In my opinion, the responsibility for interpreting such material for the purpose of determining whether notification was given lies with the respondent. It is the respondent, after all, that must decide whether a superannuation allowance or gratuity is to be paid. The respondent may only do that if, inter alia, it is satisfied each of the conditions in s 10B(2) have been met. 72Section 10B(2)(a) provides that the superannuation allowance or gratuity must not be granted unless "the former member notified the Commissioner of Police..." The wording of that provision and the statutory context in which it exists suggests that it is a matter for STC to inquire about and be satisfied whether notification occurred. If the responsibility for determining whether notification had occurred had been placed on the Commissioner of Police one would expect the legislature to have used different wording. For example, that the superannuation allowance or gratuity must not be granted unless "the Commissioner of Police certifies that the former member notified the Commissioner before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury..." 73That the responsibility lies with the respondent to determine whether notification was given to the Commissioner is consistent with the respondent's obligations, functions, powers and duties under both the PRS Act and the SA Act. The Police Superannuation Fund is under the control of STC: s 3(1) of the PRS Act. STC is the trustee of the Police Superannuation Fund: s 3 of the SA Act. The principal functions of STC include the administration of the Police Superannuation Fund to ensure that benefits payable to the persons entitled to receive benefits under the Police Superannuation Fund are paid in accordance with the PRS Act, and to determine disputes under the PRS Act: s 50(1) of the SA Act. The duties of STC relating to its functions include that it must exercise, in relation to all matters affecting the Police Superannuation Fund, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide, and to ensure that its functions relating to the Police Superannuation Fund are exercised in the best interests of persons entitled to receive benefits under the Police Superannuation Fund: s 51(1) of the SA Act. 74Pursuant to s 57 of the SA Act, STC has the power to do all things that are necessary or convenient to be done for, or in connection with, the exercise of its functions. Section 67 of the SA Act provides that in determining a dispute STC may inform itself on any matter in such manner as it thinks fit and, in so doing, is not bound to observe rules of law relating to evidence. Section 68(1) provides that "STC may request a person who has made a claim against STC, or who has a dispute with STC, to provide STC with an authority to obtain from a third person any information or evidence that is relevant to the subject-matter of the claim or dispute." Section 77(3) provides that "STC may not delegate any of its principal functions as trustee under this section, other than the STC dispute function." 75On the other hand, as the appellant submitted and in contrast to the duties, powers and functions of STC, there is nothing in s 10B(2) of the PRS Act or elsewhere that compels the Commissioner to do anything relating to the factual question of notification to the Commissioner of an injury. As the appellant submitted: The Commissioner of Police has no obligation to advise or to advise accurately based upon a search of records, thorough or not. Indeed, given the lapse of time between a former police officer's resignation or retirement and the need to determine the question of fact as to notification whatever records may have been held by the Commissioner or the NSW Police Force may be lost, incomplete or destroyed. To allow advice from the Commissioner or the NSW Police to be determinative of the question of notification is to allow the Commissioner to breach the line of demarcation between the roles of the Respondent and the Commissioner and to enter into the decision-making province of the Respondent. At the time the question of notification arises, the Respondent may be provided with (and would be entitled to rely upon) evidence, both medical and otherwise, which assists the Respondent in properly understanding the nature of the injury notified to the Commissioner. Such evidence would not be available to the Commissioner. 76In the course of the proceedings, the following exchange occurred with counsel for the respondent: PRESIDENT: What happens Mr Ower if your client comes into possession of material that suggests that there was notification and your client then contacts the Police Commissioner and the Police Commissioner said well regardless of that information I say there was no notification, do you say that is the end of the matter? OWER: My friend would say that has happened here, I say not. But to cast an answer to your Honour's question to put it in its starkest light, if there was a letter say from the Commissioner of Police in response to a question by my client it said no there hasn't been notification and say subpoena documents turned up, a letter from someone in the New South Wales Police to the applicant himself saying we note your letter of X received on this date and we accept that you were injured or something to that effect. That would place great doubt upon the bona fides of the advice received and the question would have to be asked as your Honour already observed, look we have this material, you can't be seriously saying that notification has been given. In those circumstances as a practical consequence my client could not be seen to say look notice has not been given. Because clearly there is a conflict within the Commissioner's own records. But where the conflict is simply one of the applicant and the Commissioner, that's something that in my submission the trustee cannot really resolve in favour of the applicant without more. PRESIDENT: Just on your example ... do I understand you to have accepted that in those circumstances the trustee, notwithstanding the contrary advice from the Commissioner, could proceed to accept notification that had been given? OWER: Yes your Honour because there would be clear conflict when what was received. One could almost say that example, I suppose anything is possible, but it is highly improbable that the Commissioner would say in the face of that sort of evidence that we didn't mean that letter without some further explanation. 77Qualified though it may have been, the respondent conceded there may be circumstances where STC could accept notification had been given under s 10B(2)(a) notwithstanding contrary advice from the Commissioner of Police. What is more, as explained later in this judgment, the respondent eventually accepted that the appellant was suffering from "major depressive episode" at the time of his discharge and that acceptance was based on the respondent's own assessment of whether notification had been given under s 10B(2)(a) and not on any advice - because there was none - from the Police Commissioner. 78It is apparent that the Full Bench in Hazlewood did not have the benefit of the appellant's analysis of the relevant statutory provisions. That analysis makes it clear, in my opinion, that the respondent is not bound by any advice of the Commissioner of Police as to whether notification was provided in accordance with s 10B(2)(a) of the PRS Act, but rather has a duty to determine for itself whether there was notification. With respect, I consider the Full Bench in Hazlewood was "plainly wrong" and in this respect should not be followed. First question 79Strictly speaking, the answer to the first question must be "no" because it asks whether the decision in Hazlewood gives the respondent any scope to proceed to certify an infirmity claimed under s 10B(2), contrary to the advice of the Commissioner of Police that notice of injury under s 10B(2)(a) had not been given. Hazlewood determined in effect there was no scope for the respondent to certify an infirmity in the absence of advice from the Commissioner that notification had been received in accordance with s 10B(2)(a) of the PRS Act. 80However, in light of my conclusion in respect of the third question that is not the end of the matter in the present proceedings. Second question 81In light of my conclusion on the third question, the issue whether the decision of the Full Bench in Hazlewood revealed a ratio relating to the requirements for notice under s 10B(2)(a) becomes otiose. Fourth question 82The answer to the fourth question must be in the affirmative, given my conclusion regarding the third question. Fifth question 83The fifth question asks whether the evidence in the present matter is sufficient to constitute substantial compliance with s 10B(2)(a) in respect of the claimed infirmity of post traumatic stress disorder. That issue has to be approached having regard to my conclusion that notification is a question of fact to be determined by the respondent and not necessarily by advice provided by the Commissioner of Police. 84In relation to the Commissioner's advice, it was contained in two letters dated 22 May 2006 and 4 December 2007. There it was stated the Commissioner did not accept the appellant had complied with the requirements of s 10B(2)(a) of the PRS Act. In the first letter it was stated: A review of the member's records has revealed case notes contained on both the Police Medical and Rehabilitation Files, whereby the officer makes reference whilst attending an appointment with the PMO on the 15 January 1997 that he was "feeling depressed" and the case notes from his rehabilitation case management on 14 October 1996 states, "that he had an appointment with the psychologist for stress management", however, there is no reference to the member advising the NSW Police of a post traumatic stress disorder" condition. 85In the second letter the Commissioner reiterated that he did not accept there had been compliance with s 10B(2)(a) of the PRS Act. The letter was in response to a letter from the respondent dated 29 November 2007 in which it was stated: Mr Woollard supplied a report dated 20 June 2005 by Dr Diamond, psychiatrist, (copy attached) who took a history of traumatic incidents and symptoms and diagnosed PTSD as at the date of medical discharge. So that consideration can be given to his application, please let me know whether the Commissioner was notified of any injury (i.e. psychological or psychiatric complaint linked to any of the incidents specified in Dr Diamond's report) causative of the alleged infirmity of post traumatic stress disorder. ... 86It becomes necessary to consider what material the Commissioner had at his disposal in arriving at the view there had been no notification. It will be recalled that the appellant was medically discharged in 1998. The appellant initially claimed he had contracted Lyme Disease from tick bites during the course of his duties, although it is noted the Disease was never definitively diagnosed and there was continuing medical speculation about whether the appellant's condition was due to Lyme Disease or Chronic Fatigue Syndrome or both. In his 2009 report Dr Lewin stated, "there is no reasonable physical diagnosis to account for...." Mr Woollard's depressive condition. Dr Diamond said in his 2005 report that Mr Woollard had been "erroneously diagnosed with Chronic Fatigue Syndrome." Dr Dinnen in his 2011 report agreed with Dr Diamond "the diagnosis of chronic fatigue syndrome was erroneous". 87In August 1997, the appellant withdrew his application for hurt on duty as a consequence of contracting Lyme Disease and sought a discharge on the basis that he was "medically unfit". The appellant was discharged medically unfit with Chronic Fatigue Syndrome, a condition apparently not attributed to being hurt on duty. 88Between 1996 and 1998 the Commissioner received various reports that the appellant contended, taken as a whole, revealed "a substantial and ongoing psychiatric disorder the elements of which are consistent with post traumatic stress disorder suffered by the Appellant." The reports, identified by the appellant, included the following: (1)A COPS entry of 9 August 1996 - Senior Constable Hewitt records a report by the appellant that includes the following: The victim's (Appellant's) health for quite some time now has not been good with him suffering flu like symptoms and fatigue, however the victim put these symptoms down to simply being run down and from the stresses involved in his work situation. The victim's condition deteriorated forcing him to seek medical attention, the result of which revealed he had in fact contracted Lyme disease. (2)Report of Dr W Sedhoff dated 20 November 1996 to the Claims Coordinator, Workers Compensation Section, NSW Police attaching copies of reports of Dr B Hudson dated 5 September 1996 and 10 October 1996. Dr Hudson records symptom complaints of "poor memory, concentration, lethargy, fatigue, arthralgias (sic) of the joints without swelling, parasthesia (sic: paraesthesia) including pain in the soles of the feet". Further, the Doctor records "myalgias (sic), chest pain, associated parasthesia (sic) in his left arm". The diagnosis of Lyme disease is seen as "possible" and the diagnosis is described as "provisional". In his report, Dr Sedhoff records a four year history of "debilitating, often severe, lethargy that was affecting concentration and the abilities of Senior Constable Woollard perform his duties as a police officer". Further symptoms are recorded as "arthralgia of several joints (without swelling), easy fatigability, poor concentration, parasthesia (sic) of the soles of the feet with intermittent pains. There was also occasional chest pains, muscular pains in parasthesia [sic] of the left arm that history of trauma." (3)Rehabilitation Case Management Clinical Note dated 14 October 1996. In this document are listed under the heading "current symptoms": (1)arthritis (2)muscular pain (3)dizzy spells (4)confusion (5)memory loss (6)[?] chronic fatigue. (4)Letter Dr Hudson to Detective Sergeant Dowding dated 23 October 1996 - this letter seeks to excuse Mr Woollard from attendance at Court. Dr Hudson refers to a "multisystem disorder that is compatible with Lyme disease". More specifically, the Doctor refers to the Appellant suffering "difficulty with his short term memory and his ability to think clearly and concentrate are impaired." (5)Clinical note, Police Medical Officer dated 15 January 1997. In this clinical note the PMO records current symptoms as: Fatigue, occasional dizzy spells 1-2 x mth, joint pain - toes/wrist/neck, shooting pain in limbs and back of ears/calves Concentration/memory poor Parasthesia [sic: paraesthesia] soles of feet Poor sleep, feels depressed. (6)Police Service Personnel System - Leave Taken. P. Woollard: 14 February 1997 to 4 March 1998. This document represents a record of leave taken by the Appellant for the period stated. For the period 23 March 1997 to 21 January 2008 the "Reason" for leave is listed as "nervous illness\anxiety". This is a record maintained by the NSW Police Service. (7)Report of Dr P Sharp, Police Medical Officer dated 27 August 1997 - in the report there is recorded complaints by the Appellant of fatigue, joint pains, shooting pain, feels depressed, does not sleep well and finds cognitive functions are affected. There is also a complaint of paraesthesia. (8) Rostering Details - Sick Leave Records - Sen Constable Phil Woollard: 12 January 1998 to 23 January 1998: this document records the reason for the Appellant's "Long Term Sick" report as "Stress/Lymes (sic) Disease." (9)The Appellant's Affidavit reveals he was on continuous sick report from late June 1996 to his medical discharge in March 1998 - a period of 20 months. (10) Reports of Injury (Dates of Injury: 18 March 1989 and 30 June 1990): Each report of injury provides a description of an event to which the Appellant was exposed. On 18 March 1989 the appellant's vehicle hit a patch of oil and overturned on his way to work. The appellant suffered pains to his throat, neck and back. On 30 June 1990 the appellant was dragged 15 metres by an offender on a motor cycle whilst the appellant was attempting to arrest the offender. The appellant suffered severe pain to his neck, back and right leg. 89The appellant submitted that if the description of the diagnostic criteria of post traumatic stress disorder in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition, Text Revision ("DSM-IV-TR") published by the American Psychiatric Association is taken as relevant, the COPS reports, clinical notes, medical reports, letters and factual matters referred to above revealed that the Commissioner of Police had notification consistent with the satisfaction of, at least, Criteria A, C, D, E and F as identified in the DSM-IV-TR. 90In summary, Criterion A is that the person has been exposed to a traumatic event in which both of the following have been present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; (2) the person's response involved intense fear, helplessness, or horror; Criterion B - the traumatic event is persistently re-experienced in one (or more) of the designated symptoms; Criterion C - persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the designated symptoms; Criterion D - persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the designated symptoms; Criterion E - duration of the disturbance (symptoms in Criteria B, C, and D) is more than one month; and Criterion F - the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. 91According to the appellant (referring to the reasons of Staff J in Hazlewood), the Commissioner of Police had notification of events occurring and impacting upon the appellant psychologically in a way that had the capacity of manifesting in the ultimate condition (the infirmity): The Commissioner of Police had notification of the elements of a condition that should be treated as being referable to a statement of advice as to the onset, or the existence of PTSD, and therefore constitute notice of the requisite kind. 92It was further submitted for the appellant that notification of the elements of the condition was confirmed by the later obtained reports from the appellant's treating specialist, Dr Diamond, and from the doctor qualified for the respondent, Dr Lewin. Both doctors confirmed the probability, it was claimed, that in the years leading up to his medical discharge, the appellant was misdiagnosed. Further, it was submitted both doctors confirmed that the symptoms recorded at the time and noted in the various documents referred to above were consistent with the development of a psychiatric disorder. 93The appellant acknowledged that whilst there is some difference of opinion between Dr Diamond and Dr Dinnen, on the one hand, and Dr Lewin on the other, as to the proper descriptive title to be given to the psychiatric disorder suffered by the appellant and from which he was infirmed at the time of his medical discharge, it was submitted that "the Commission would favour the views of Dr Diamond and Dr Dinnen that the correct diagnosis (and infirmity) was a 'post traumatic stress disorder and major depressive episode'." 94Dr Diamond provided comprehensive reports on the appellant's condition on 20 June 2005 (to the appellant's solicitors in the present proceedings) and 20 September 2010 (to the appellant's solicitors in family law proceedings). 95In his June 2005 report Dr Diamond acknowledged he had been provided with various medical reports, including reports of Dr Hudson and Dr Sedhoff. In his report Dr Diamond stated: Mr Woollard has given a comprehensive history of cumulative stress-related illness. He describes clearly the onset of symptoms associated with Posttraumatic Stress Disorder. These occurred early on in his policing career and have persisted throughout. The presence of the condition is clearly identifiable following events that began in the 1980s and continued to trouble him with further exposure to traumatic stress during the course of his policing career. He has repeatedly been exposed to events involving threats of death and serious injury. He has witnessed death and serious injury involving other people. His subjective experiences include intense fear, feelings of helplessness and horror. He has feared for his life on many occasions. He has persistently re-experienced these traumatic events in a number of ways. He has intrusive recurrent distressing recollections of the events accompanied by vivid images and perceptions of the incidents. He has recurring nightmares that are part of the response to distinct traumatic events. He responds to recall and reminder cues of the traumatic events with intensification of symptoms exemplified by fear, anxiety, shakiness and sweatiness. He has both psychological and physiological reactions to cues that remind him of the stressful events. Mr Woollard is avoidant of many situations in which he feels he might be under threat. He avoids locations where traumatic incidents have occurred. He distracts himself by trying to keep focused and busy doing mundane tasks around the house. He does not engage in discussion about past events related to his policing career. His activities and interests have diminished markedly. He leads a life that is almost entirely focused around domestic and childcare duties. When he attempts to work he works on his own by doing stints of lawnmowing in the immediate local environment. Mr Woollard presents as a detached and seemingly unconcerned individual until he is pressed to talk in detail about his traumatic experiences as a police officer. He requires reminding about his concerns about the future and about his responsibilities towards his wife and children. He is detached. Mr Woollard reports episodic irritability and rage. He takes this out on his children. He is aware that this behaviour is inappropriate. He is aware of hypervigilance. He constantly surveys the environment. When he is forced to go out of his local area he finds those experiences to be anxiety provoking and draining. He is terrified of meeting people whom he might have dealt with in his policing role. He is afraid he will be recognised. When he is away from his home he feels vulnerable and anxious. The onset of his initial posttraumatic stress disorder symptoms occurred early on his policing career. Although the condition was present it was not totally disabling. The disability has evolved as the traumatic experiences have been cumulative. He reached a stage when he was unable to function. He was unable to concentrate, unable to remember and unable to focus. He felt listless, detached, irritable and distressed. He developed a secondary disturbance in his mood state and became depressed. The condition has been present for many years. It has been disabling for almost a decade. ... I have reviewed the documents that you enclosed with your referral letter. They clearly support the history as described to me by Mr Woollard. The content of the documents is clear. His general non-specific symptomatology was thought to be on the basis of what were then interesting and exotic diagnoses at the time. Further attempts at reaching a definitive diagnosis were unsuccessful although his symptoms were simply attributed to those associated with the diagnosis of Lyme disease and much later, Chronic Fatigue Syndrome. The striking issue is that the diagnosis, Chronic Posttraumatic Stress Disorder, was never raised as a diagnostic possibility. I specifically asked Mr Woollard why this had happened. He explained to me, as discussed earlier in the report, that the suggestion by the general practitioner that he had suffered a disease as a result of exposure to tick bites was a great relief to him at the time. Not only was the suggestion acceptable to him but also it was followed by referral to an expert and investigation and treatment provided some hope that his diverse symptoms could be cured. Mr Woollard went on to tell me that for many years his life as a covert operational officer meant that he was most reluctant to divulge any of his policing activity to anyone. For years he was accustomed to saying little about what he did. Furthermore, he was unwell as a result of longstanding chronic posttraumatic stress disorder. His way of coping with this was to remain distracted and focused on specific tasks. He was not accustomed to talking about his emotions and was most reluctant to display these to anyone. When taking this information into consideration it is clear to me that Mr Woollard was compliant with the diagnosis of Lyme disease and was most reluctant to explore any other psychological issues at that time. His attendance at a psychiatrist in Penrith whilst he was living with his mother was an attempt to cope better with the stress that he was under at the time. He did not discuss his longterm work-related trauma with the psychiatrist at the time. He was not asked about this specifically. The correspondence that I read documents clearly the course of events in relation to his examination by experts in infective diseases medicine. These specialists did not pursue alternative explanations for his symptoms. I note that their diagnoses are made by exclusion and not by demonstrating specific evidence for his illness being caused by a specific infective agent. CONCLUSION Mr Woollard has a very clearly demonstrated history and associated symptoms that confirm the diagnosis of chronic Posttraumatic Stress Disorder. It is my opinion that this condition was not identified at the time he was assessed in relation to his inability to maintain the capacity to work as a police officer. In 1998 he was not capable of performing the duties of a serving police officer. That state persists to the present. I believe finally he was erroneously diagnosed with Chronic Fatigue Syndrome and that this diagnosis turns out to be incorrect. I would therefore support his application to have his Certificate of Incapacity changed so that it states the correct incapacity being Chronic Posttraumatic Stress Disorder. 96Dr Diamond was obviously of the view that the appellant had been treated poorly by the Police Force. In his September 2010 report, Dr Diamond stated: With regard to his psychiatric illness, he has Chronic Post Traumatic Stress Disorder that is likely to persist into the future. This can be assessed as a permanent and recurring disability. ... Future progression of your client's current condition is likely to be affected by external stressors of various types. The current litigation is an example of such stress. Other stressors include his development of further physical illness, as may well occur in his case. In addition, your client is susceptible to trigger events that are likely to precipitate acute exacerbation symptoms in the context of his Chronic Post Traumatic Stress Disorder. These events are unpredictable and random because individuals with the condition may find themselves exposed to events that trigger memories of traumatic experiences that occurred during a policing career. Your client's ability to obtain work in the future is limited by his physical condition and by his psychiatric illness that will persist in the long term. He has only functioned in the employment environment over the years when he is able to work in a secure, isolated environment such as doing casual gardening for well-known clients. The extent of his work in that role was always limited. He was not pressured by an excessive workload or by working normal hours. His work consisted of casual gardening and handyman work for fewer than twenty hours per week generally. It is unlikely that his work capacity will improve beyond that. Your client's ability to obtain employment in the future therefore is curtailed. 97Dr Dinnen examined Mr Woollard in January 2011. Dr Dinnen agreed with Dr Diamond's diagnosis. In his report dated 25 January 2011, Dr Dinnen stated: Report from Dr Lewin: A report was provided by psychiatrist, Dr Robert Lewin in June 2009 to State Super. He examined the patient in June 2009. He took into consideration various documents including Dr Diamond's report. He took a history of the patient's service experiences and traumatic events, and recorded a psychiatric history. He noted the patient had been seen by a psychiatrist, Dr Nazdeer Hamed in Penrith in 1996 (this was referred to also by Dr Diamond) and was considered to be suffering from stress symptoms at the time of the Royal Commission. He was prescribed anti-depressive medication but did not take it. He also noted the personal and family history, including matters to do with the family breakdown. Although Dr Lewin noted there was a complex of reactive symptoms of depression and anxiety clearly evident from the mid 1990's onwards, and these included post traumatic symptoms of anxiety and depressive symptoms as well as a pattern of abusive alcohol, he diagnosed major depressive episode even though he agreed that Dr Diamond's diagnosis of chronic post traumatic stress disorder was reasonable. He considered the current diagnosis was that of a partially treated major depressive episode. Other Documents: These are noted and include a 24 page document describing the patient's personal experiences in the Police Force, which is presumably the one referred to by Dr Diamond. Opinion: This case classically demonstrates the difficulties of diagnosing post traumatic stress disorder because of two main reasons - the reluctance of those who have been traumatised to acknowledge the impact of those experiences, or event to be aware of that impact, mainly because of the coping strategy of avoidance and suppression of traumatic memories and experiences which is central to the condition. The second factor is that the diagnosis often escapes those who are not particularly skilled and experienced in diagnosing and treating the condition, and is mistaken for other conditions such as depressive disorder or alcohol abuse. Indeed, the co-morbid association of post traumatic stress disorder with substance abuse or dependence, and depression, is of the order of 50% for each. I have no doubt whatsoever that this patient does suffer from chronic post traumatic stress disorder. His experiences in the Police Force were traumatic and prolonged, and are well described and evaluated by Dr Diamond. The particular advantage that Dr Diamond has in giving his opinion is that he has had an ongoing association with this patient, which allows a depth of knowledge which cannot be duplicated in a single assessment. However the histories provided to me at interview and recorded by Dr Lewin are certainly entirely consistent, if less detailed, with Dr Diamond's reports. Not only does he have severe chronic post traumatic stress disorder, but it has rendered him incapable of working in his profession as a police officer since 1996. His ability to work part-time was further compromised by the development of cancer two years ago, and this undoubtedly aggravated his psychiatric disorder. Medico-Legal Matters: I note from your letter of 13 January that the patient applied to have his certificate of incapacity amended to have the infirmity of post traumatic stress disorder added to it. You advised that the SAS Trustee Corporation has not added that condition but instead added the condition of major depressive episode. That decision is on appeal. You have asked if in my view the patient was suffering as at the date of medical discharge from the NSW Police Force on 25 February 1998 from post traumatic stress disorder. I have commented above as to the problems which can occur in making this diagnosis. It is a matter in which I have particular expertise, and I am certain that this patient indeed did have chronic post traumatic stress disorder as at the time of his medical discharge from the Police Force. I fully agree with Dr Diamond, whose exemplary reports and opinion should not be challenged in my view, that he had long suffered from this condition and that it was aggravated as a result of his unfortunate experiences before the Wood Royal Commission. Further I fully agree with him that the diagnosis of chronic fatigue syndrome was erroneous, and the correct diagnosis at the time was that of chronic post traumatic stress disorder with associated depressive features. I would strongly advise that the certificate of incapacity on discharge from the Police Force should be amended to state that the illness from which he suffered was that of chronic post traumatic stress disorder with associated depressive features. The diagnosis of major depressive episode made by Dr Lewin is not correct and is inappropriate. 98The traumatic incidents to which Mr Woollard was exposed in his policing career were referred to by Dr Diamond and Dr Dinnen and also by the appellant in his affidavits filed in the proceedings. They included the following: (a)an unsuccessful attempt to revive a dying man and the revulsion and guilt he felt; (b)fear for his life and the life of a colleague during a high speed chase at a surveillance operation; (c)intense fear for his life when he found himself trapped and at the mercy of an aggressive and hostile crowd in a covert operation; (d)shaking uncontrollably, feeling nauseous and fearing for his life after the arrest of a motor bike rider; (e)discovery of a deceased woman at Brookvale; (f)attendance at a suspected suicide at Beacon Hill. 99It was, as I earlier stated, the respondent's submission that as the appellant was not diagnosed with the claimed condition of chronic post traumatic stress disorder before his discharge from the police force, it was impossible for him to have substantially complied with the notice requirement of s 10B(2)(a). In other words, as the condition had not been diagnosed the appellant could not have notified an injury that caused the condition. 100This is the difficulty with a psychic injury such as post traumatic stress disorder. The former officer may have been subject to traumatic events as a police officer and whilst he was serving as a police officer displayed symptoms of depression and anxiety including flashbacks, panic attacks, sleeplessness, stress and mood swings. However, the former officer and his or her treating doctors may have diagnosed some other psychological or even physiological condition (eg chronic fatigue syndrome), which later diagnoses prove to be wrong and which find that the proper categorisation of the condition is post traumatic stress disorder, the onset of which occurred during the former officer's police service. 101In this circumstance the former officer may be deprived of a superannuation allowance for the reason he or she did not notify an injury or injuries as causing post traumatic stress disorder because such an infirmity was not recognised at the relevant time for what it was. The difficulty is compounded by the fact that unless the former officer reported an injury, such as depression, that was manifested by a broad range of symptoms wholly consistent with a diagnosis of post traumatic stress disorder, the position of the respondent, as has occurred in the present case, would be, presumably, that the former officer did not notify an injury causative of the claimed infirmity of post traumatic stress disorder. 102It does not seem to me that the legislature's intention was to deprive a former officer of a superannuation allowance for the reason that he or she was not aware of the true nature of the infirmity at the relevant time either because the infirmity was not correctly diagnosed or not diagnosed at all and, therefore, the officer was not in a position to provide notification that specifically or unambiguously identified an injury causative of the true infirmity. To be balanced against that, of course, is the risk of former officers claiming an allowance in respect of infirmities caused by injuries incurred other than during their police service, hence the need for the notification requirement in s 10B(2)(a). 103In the present proceedings the following facts are relevant to the task of determining whether there was substantial compliance with s 10B(2)(a) of the PRS Act in respect of the appellant's claimed infirmity of chronic post traumatic stress disorder: (1)the appellant had been exposed to traumatic events during his period of service in the police force. He was exposed to life threatening and dangerous situations including events that involved actual or threatened death or serious injury. The Commissioner knew or should reasonably have known about this exposure; (2)the appellant was first diagnosed with possible Lyme Disease that the appellant thought he may have contracted from tick bites. The appellant underwent treatment for Lyme Disease, but it was unsuccessful. Dr Packham, a staff specialist in infectious diseases at Westmead Hospital, rejected the Lyme Disease diagnosis in January 1998. Dr Packham suggested Chronic Fatigue Syndrome was the cause of the appellant's problems. Chronic post traumatic stress disorder was never raised with the appellant as a diagnostic possibility prior to his medical discharge; (3)the appellant experienced various symptoms in the period 1996 to 1998 that were known to the Police Commissioner or should reasonably have been known from various reports (including medical reports) including fatigue, stress, poor memory, lack of concentration, lethargy, dizzy spells, anxiety, depression, impaired cognitive functions, not sleeping well. These symptoms are consistent with a diagnosis of post traumatic stress disorder; (4)in 1996, the appellant consulted Dr Hamed, a psychiatrist, who diagnosed stress and recommended anti-depressive medication; (5)the appellant was discharged in 1998 as being medically unfit due to Chronic Fatigue Syndrome, a condition apparently not accepted as qualifying for Hurt on Duty; (6)in 2004, the appellant had initially sought referral to a psychiatrist because his life was diminished and unproductive. He first saw Dr Diamond in November 2004 as a consequence of a referral from the appellant's general practitioner, Dr Forfa. Dr Diamond saw the appellant on 4 January, 15 February, 19 April and 31 May 2005. In a letter from Dr Diamond to Dr Forfa dated 11 January 2005 Dr Diamond stated: Despite the fact that he [the appellant] was diagnosed with Lyme's [sic] disease and his symptomatology was attributed to that condition, it is very clear to me that he has all the features consistent with chronic posttraumatic stress disorder that has never been addressed or treated. Whilst the treatment component is difficult at this stage because of the entrenched nature of the symptomatology and the avoidance behaviours he exhibits, it is also significant that nothing has been done about obvious work-related illness and its consequences. I have advised him to discuss his legal position with his solicitors with the understanding that it is my view that he has a work-related injury that has disabled him. ... (7)consequently, the appellant's solicitors wrote to Dr Diamond seeking his opinion about the correct diagnosis and whether any diagnosed condition suffered by the appellant would have made him incapable of performing his police duties as of March 1998 as well as at the present time (June 2005); (8)in June 2005, in a comprehensive report, Dr Diamond confirmed his opinion that the appellant was suffering from "chronic Posttraumatic Stress Disorder", that this condition was not identified at the time the appellant was assessed in relation to his inability to maintain the capacity to work as a police officer, that in 1998 the appellant was not capable of performing the duties of a serving police officer and that "chronic Posttraumatic Stress Disorder" persisted as at June 2005. Dr Diamond also expressed the opinion that the appellant was "erroneously diagnosed with Chronic Fatigue Syndrome"; (9)in November 2007, the appellant's solicitors provided the respondent with a copy of Dr Diamond's June 2005 report. Notwithstanding the report, the Commissioner maintained no notification had been given of post traumatic stress disorder; (10)in June 2009, the appellant was referred by the respondent to Dr Lewin, a psychiatrist. Although Dr Lewin noted there was a complex of reactive symptoms of depression and anxiety clearly evident from the mid 1990's onwards and these included post traumatic symptoms of anxiety and depressive symptoms, he diagnosed major depressive episode even though he agreed that Dr Diamond's diagnosis of chronic post traumatic stress disorder was reasonable. Dr Lewin also stated, "Whether the formal diagnosis is post traumatic stress disorder or major depression, it is clear that Mr Woollard was suffering from a recognised psychiatric condition over a period of several years during the relevant period." (11)on 11 February 2010, the respondent advised the appellant's solicitors that it had accepted, apparently based on the diagnosis of Dr Lewin, that "Mr Woollard was incapable, from the infirmity of the mind, namely "Major Depressive Episode", of personally exercising the functions of a police officer ... at the time of his retirement." The respondent issued the necessary certificate under s 10B(2) of the PRS Act; (12)in September 2010, Dr Diamond confirmed that the appellant was suffering from "Chronic Post Traumatic Stress Disorder", that was likely to persist into the future and that it was a permanent or recurring disability; (13)in January 2011, Dr Dinnen, a psychiatrist, examined Mr Woollard. Dr Dinnen agreed completely with Dr Diamond's diagnosis and stated there was "no doubt whatsoever" that the appellant suffered from chronic post traumatic stress disorder that had rendered him incapable of working as a police officer since 1996. Dr Dinnen said the diagnosis of Chronic Fatigue Syndrome was "erroneous" and that the diagnosis of Dr Lewin of "major depressive episode" was "not correct" and was "inappropriate". 104As I observed earlier, the respondent declined to accept that notification had been provided in accordance with s 10B(2)(a) of the PRS Act in respect of an injury that caused the infirmity of chronic post traumatic stress disorder. Instead, as evidenced by the issuing of the certificate under s 10B(2) on 10 February 2010, the respondent accepted that the appellant had notified the Commissioner of an injury or injuries that caused the infirmity of "major depressive episode". 105The only bases upon which the respondent could have been satisfied notification had been given to the Commissioner of "major depressive episode" was its own assessment that injuries had been reported by the appellant between 1996 and 1998, Dr Lewin's diagnosis of "major depressive episode" and the doctor's findings that "there was a complex of reactive symptoms of depression and anxiety clearly evident from the mid 1990's onwards...." There is no evidence the respondent received further advice subsequent to 4 December 2007 from the Police Commissioner whereby the Commissioner had changed his mind regarding notification. Moreover, in order to issue the certificate of 10 February 2007, the respondent must have accepted that there had been substantial compliance with s 10B(2)(b) as to the form of notification. 106Thus, despite submitting that Hazlewood was correct in holding that STC did not have an independent role in determining the question of notice pursuant to s 10B(2)(a), the respondent did, in fact, act independently of the Commissioner's advice in accepting there had been notification of an injury causing the infirmity of "major depressive episode". The respondent appears to have done so on the basis of an acceptance that the appellant had sustained an injury in the form of anxiety and depression, which the appellant had notified by way of reports from his treating doctors and which the respondent accepted as being consistent with Dr Lewin's diagnosis of "major depressive episode". This approach seems to have been derived from what Staff J held in Hazlewood, namely: [90] There needs not only to be notice of the fact of a circumstance, that is, a physical circumstance which may be constituted by the reporting of an event and the existence of a condition, for example, depression, but also a communication that there is a connection between these two events. In other words, there needs to be notification given by a police officer or former police officer or his medical representatives, that the events which have occurred are in some way impacting upon him physiologically, or in some other way that has the capacity of manifesting in the ultimate condition. [91] What the legislation requires is notification of an injury, which could include either a physical wound or psychic injury such as depression, which the police officer claims caused the infirmity rendering the officer incapable of performing his or her duties. [92] In this case, even though the police officer said that he was depressed, he also needed to add that this was because of what happened to him whilst carrying out his police duties, or consequence of it, in order to meet the requirement of s 10B of the Act. What is required is some evidence from the police officer, or his medical practitioner, to this effect. ... 107What there must have been under s 10B(2)(a) is a notification by the former officer to the Commissioner of the injury that STC has to determine caused the infirmity and that notification must have been made before the member's resignation or retirement and within 6 months of receiving the injury. There is no requirement to notify an infirmity. 108Section 10B(2) is concerned with a former police officer who has retired ("retired" includes an officer who is medically discharged under s 14: s 10) or resigned. It sets out certain conditions that must be satisfied before a former officer is eligible for a superannuation allowance or gratuity under s 10. The purpose of s 10(1)(b) and s 10B(2) is to enable a former officer who, subsequent to his or her retirement or resignation, decides to claim the allowance or gratuity on the basis that the infirmity was caused by an injury incurred during the officer's service with the Police Force. The infirmity, or its true nature, may not have been evident or recognisable at the time the injury was incurred (or within 6 months of receiving it), but which became apparent - or diagnosed - after the officer had left the Police Force. 109In the foregoing circumstances, it may have been impossible for the officer to have identified the infirmity according to the requirements of s 10B(2)(a) (that is, before the member's resignation or retirement and within 6 months of receiving the injury said to cause the infirmity). 110In the normal course, the former officer wishing to make a claim for a superannuation allowance or gratuity would identify the infirmity (perhaps supported by medical opinion) at the time of making the claim. 111Having received the claim, STC then is required to undertake the process of determining whether a certificate should be issued to the effect that the former member was incapable, from the infirmity of body or mind identified by the claimant, of personally exercising the functions of a police officer at the time of the member's resignation or retirement. In doing so, STC is required to satisfy itself, inter alia, that the former member notified the Commissioner of Police of the injury that caused the member's infirmity. Notice of that injury is required to have been given before the member's resignation or retirement and within 6 months of receiving the injury. 112In other words, the former member may make a claim regarding an infirmity and STC will need to satisfy itself that there was a causal connection between the claimed infirmity and an injury that must have been notified to the Commissioner within the required timeframe. There is no requirement for the former officer to identify the infirmity in the notification to the Commissioner, only the injury. 113I would only add that if an officer was in a position to notify an infirmity caused by an injury prior to resignation or retirement (the infirmity required to be of such a nature it rendered the officer incapable of personally exercising the functions of a police officer at the time of the officer's resignation or retirement), one would expect the officer to claim a superannuation allowance or gratuity under s 10B(1). Section 10B(2) would be otiose. 114At [92] of his decision in Hazlewood Staff J stated: [E]ven though the police officer said that he was depressed, he also needed to add that this was because of what happened to him whilst carrying out his police duties, or consequence of it, in order to meet the requirement of s 10B of the Act.... 115 His Honour referred to s 10B of the Act. Given the context of his remarks, which involved the notification under s 10B(2)(a), it is that provision that I believe his Honour was referring to. That being so, I do not consider his Honour was correct in the opinion he expressed at [92]. The task of determining whether the former member had been hurt on duty when he or she was a member of the police force is a task allocated by the legislation exclusively to the Commissioner: s 10B(3). The responsibility resting on STC under s 10B(2)(a) is to determine whether the former member notified the Commissioner of the injury. There is nothing in s 10B(2)(a) to suggest that in certifying the former member was incapable from an infirmity of personally exercising the functions of a police officer at the time of the member's resignation or retirement, STC was required to have regard to how and when the injury causing the infirmity occurred. If STC is to be satisfied that the injury occurred whilst the former member was carrying out police duties there would seem to be little point in the Commissioner being required to determine whether the member's infirmity was caused by the member being hurt on duty. 116That leaves two questions: whether Mr Woollard notified an injury in accordance with s 10B(2)(a) and if he did was it reasonably open to STC to be satisfied of a causal connection between the injury and the infirmity of post traumatic stress disorder? 117The appellant submitted that consistent with the purpose of the legislation, "injury" as contemplated in s 10B(2)(a) could mean either an event causing harm or the onset of harm (in the form of symptoms either physiological or psychological) or both. Reference was made to Australian Conveyor Engineering Pty Limited v Mecha Engineering Pty Limited (1998) 45 NSWLR 606 at 617 per Powell JA and Lyons v Master Builders Association of NSW Pty Limited (2003) 25 NSWCCR 422 per Neilson J at [22]. Counsel submitted this definition of "injury" would mean that notification was sufficient to satisfy s 10B(2)(a) if there was notification of an incident capable of causing injury and, ultimately, infirmity. Also, notification would be sufficient if there has been a report of symptomatology to the Commissioner, that symptomatology being causative of the relevant infirmity. I do not consider it necessary to determine whether the appellant is correct in this regard. 118Section 10B(2)(a) refers to an injury that caused an infirmity of body or mind. I do not think it is contested that a traumatic event may cause an injury - a psychic injury - thereby causing an infirmity of mind, such as post traumatic stress disorder. 119There is no doubt that in the period 1996 to 1998 Mr Woollard reported a range of conditions including fatigue, stress, poor memory, lack of concentration, lethargy, dizzy spells, anxiety, depression, impaired cognitive functions and not sleeping well. It is evident that STC accepted these conditions as the notification of an injury or injuries in accordance with the timeframe in s 10B(2)(a) and in a form that complied with s 10B(2)(b), otherwise it could not have issued a certificate in 2010 that "Mr Woollard was incapable, from the infirmity of the mind, namely "Major Depressive Episode", of personally exercising the functions of a police officer ... at the time of his retirement." 120However, STC maintained the notified injury or injuries did not cause the infirmity of chronic post traumatic stress disorder. The respondent submitted that whilst the injuries and symptoms notified by the appellant supported a diagnosis of a depressive condition they were not of such a nature as to indicate the injury or injuries were causative of chronic post traumatic stress disorder. 121Notwithstanding the strong written opinions of Dr Diamond and Dr Dinnen, I do not regard myself as being in a position to determine whether what was notified by Mr Woollard during the period 1996 to 1998 may be regarded as causative of chronic post traumatic stress disorder. That, in my view, should be determined on the basis of further evidence. Neither Dr Diamond nor Dr Dinnen has been subjected to cross-examination and Dr Lewin has a different written opinion. There is also perhaps the question of the relevance and applicability of DSM-IV-TR. I am not confident the determination of what is a complex question can be done "on the papers" so to speak. 122Accordingly, having regard to what I have determined, I would propose that the question of whether the injury or injuries relied upon by the appellant may reasonably be regarded, for the purposes of s 10B(2) of the PRS Act, as causing the appellant's claimed infirmity, namely, chronic post traumatic stress disorder, be referred back to Haylen J pursuant to s 193(3) of the Industrial Relations Act. Answers to questions 123I answer the five questions on the Reference as follows: (1)The answer to Question 1 is "no". (2)The answer to Question 2 is "not necessary to answer". (3)The answer to Question 3 is that SAS Trustee Corporation v Hazlewood [2009] NSWIRComm 157; (2009) 188 IR 174 was wrongly decided. (4)The answer to Question 4 is "yes". (5)The answer to Question 5 is "question not answered". Costs 124I would order that in respect of the Reference, the appellant shall have 14 days in which to file short submissions regarding costs and the respondent shall have a further 14 days in which to reply. Unless either party seeks to put oral argument the question of costs would be determined on the papers. JUDGMENT OF THE VICE-PRESIDENT, KAVANAGH J AND BACKMAN J 125By an application filed on 28 July 2010, Phillip Woollard ("the appellant") brought an appeal, pursuant to s 88 of the Superannuation Administration Act 1996, against a determination made by the Disputes Committee of the SAS Trustee Corporation ("the STC" or "the respondent"), determining, on 10 February 2010, that there would not be added the infirmity of "chronic post traumatic stress disorder" to a certificate issued by the STC to the appellant pursuant to s 10B(2)(c) of the Police Regulation (Superannuation) Act 1906 ("the PRS Act"). 126That application was designated Matter Number IRC 660 of 2010 in this Court's lists and was allocated for hearing to Haylen J. After some preliminary listings, his Honour decided to exercise powers of referral under s 193(1) of the Industrial Relations Act 1996 ("the IR Act"). Having regard to the record of the proceedings, it is clear that his Honour determined that he would refer to the President the whole of the matter before him pursuant to s 193(1)(a) of the IR Act; thereby electing not to accept the invitation of the parties to the proceedings to refer certain questions. The President then allocated the proceedings (that is, the whole of the matter referred by Haylen J) to this Full Bench. 127It follows that the Full Bench is seized of the appeal proper, filed on 28 July 2010. Those proceedings take the form of a hearing de novo. Nevertheless, with one important exception, the parties continued to pursue, before the Full Bench, answers to the inelegant questions they had originally posed to Haylen J. The exception was that the STC opposed the first part of question three being posed to the Court, namely: "whether the decision of the Full Bench in SAS Trustee Corporation v Hazlewood [2009] NSWIRComm 157; (2009) 188 IR 174 ("Hazlewood") is wrongly decided". In our view, the record of the proceedings disclose that the true purpose of the application to refer was to provide a vehicle for the reconsideration of the correctness of the decision of the Full Bench of this Court in Hazlewood. 128Even without that background, the application, when analysed in this way, is exceptional. The decision in Hazlewood was delivered recently (in September 2009) and was subsequently confirmed by another Full Bench of this Court in Shane Bennett v SAS Trustee Corporation (unreported, IRC 571 of 2010, 9 December 2010, per Boland J, President, Walton J, Vice-President, and Haylen J). Further, the application book produced for the proceedings is inadequate to address the appeal, although we accept, as Haylen J mentioned, the referral of the matter was designed to allow the Full Bench to grapple with all issues. Advice of the Commissioner of Police 129We have mentioned this background to indicate that, in the ordinary course, the procedures adopted here were, in our view, undesirable. Nonetheless, having had the benefit of considering the draft judgment of Boland J, President, in this matter, we consider that the Full Bench should consider, at least at a preliminary stage of these proceedings, the correctness of Hazlewood. This view has been reached solely because his Honour's reasoning has led us to the view that, in one respect, the judgment in Hazlewood was incorrect: the STC was not obliged to accept the advice of the Commissioner of Police as to notice under s 10B(2)(a). The STC must satisfy for itself whether the requisite notice has been given by a former member of the police force. This must result in a conclusion that, in this respect, the judgment in Hazlewood was wrong. 130Whilst it is not necessary to decide the matter in the present context, we should not be taken, by this conclusion, as concurring with the further submission advanced by the appellant in relation to the third question that "there is nothing in s 10B(2) of the PRS Act or elsewhere that compels the Commissioner (or for that matter the NSW Police Force) to do anything relating to the factual question of notification to the Commissioner of injury". The Commissioner is not required to determine issues arising under s 10B(2)(a), but we do not consider that the Commissioner, by that sub-section, is made a mere repository of relevant information which the STC may access for the purposes of determining applications or disputes. In our view, an obligation would repose in the Commissioner under the sub-section to exercise a due degree of care, skill and diligence in retaining the subject notifications and providing them to the STC upon request for that information. We see nothing in the legislation which would preclude the Commissioner providing an advice as to the content of the notifications, if so requested by the STC. A Further Issue of Construction 131This conclusion, however, deals with only one of two important questions as to the construction of s 10B(2)(a) resolved in Hazlewood. That further issue is reflected in paragraphs [89] - [100] of the judgment of Staff J in Hazlewood and is adequately described by the manner in which the STC framed question five (raised by the parties): "The real nub of the question posed is whether the reporting of symptoms alone (as contended by the Applicant, without any reported connection with injurious events), can constitute substantial compliance with s 10B(2)(a)." (We shall approach this question on the premise agreed by the parties that substantial compliance with the requirements of s 10B(2) of the PRS Act will be sufficient to meet the requirements of that sub-section). 132The resolution of that issue is greatly assisted by the receipt of the draft judgment of the President in this matter, particularly his Honour's attention to the background of the proceedings, the statutory provisions, the submissions of the parties and the various judgments of the respective Members of the Full Bench in Hazlewood. We further note, for completeness, that his Honour sets out the five questions raised by the parties. 133The second issue of construction is a more difficult one. The Hazlewood Judgment re the Second Construction Issue 134It is appropriate, at the outset, to addess the approach taken by Staff J in Hazelwood to construing the meaning of the 'injury' to be notified under s 10B(2)(a) (his Honour's judgment formed part of the ratio of the judgment in this respect). The relevant passages of his Honour's judgment are as follows, at [89] - [92]: [89] The critical issue in respect of which the respondent has failed was the lack of notice required pursuant to s 10B(2)(a) of the Act. In my view, the contention by the respondent that there was substantial compliance with the requirements to give notice because the respondent advised the Commissioner of Police of traumatic events, is misconceived. There is a difference between exposure to these traumatic events and injurious consequences. Marks J determined that the respondent had PTSD at the time of his discharge. In my view, the section is applicable to PTSD. If an injury causing the PTSD had been notified prior to discharge, the respondent would have been entitled to have the infirmity causing his incapacity certified. [90] There needs not only to be notice of the fact of a circumstance, that is, a physical circumstance which may be constituted by the reporting of an event and the existence of a condition, for example, depression, but also a communication that there is a connection between these two events. In other words, there needs to be notification given by a police officer or former police officer or his medical representatives, that the events which have occurred are in some way impacting upon him physiologically, or in some other way that has the capacity of manifesting in the ultimate condition. [91] What the legislation requires is notification of an injury, which could include either a physical wound or psychic injury such as depression, which the police officer claims caused the infirmity rendering the officer incapable of performing his or her duties. [92] In this case, even though the police officer said that he was depressed, he also needed to add that this was because of what happened to him whilst carrying out his police duties, or consequence of it, in order to meet the requirement of s 10B of the Act. What is required is some evidence from the police officer, or his medical practitioner, to this effect. In this matter, the respondent had received extensive psychiatric treatment from Dr McGrath before his resignation. It was incumbent upon the member to put forward that information. In his application for medical discharge, the respondent stated that the depression was caused by alcohol related problems. There was no evidence that the depression was related to any other factor. 135Justice Staff was considering an appeal from the first instance decision of Marks J, in which his Honour had found that exposure to 'traumatic stressor events' constituted an 'injury' for the purpose of s 10B(2)(a). 136Justice Marks appeared to have adopted the term 'traumatic stressor events' from the diagnostic features of post traumatic stress disorder set out in the DSM-IV-TR, which state that the disorder is the development of symptoms following exposure to a traumatic stressor. Staff J's reference to 'traumatic' events, in Hazlewood at [89], should be read, in our view, in this light. It should not be read as importing into the notice requirement under s 10B(2)(a), a requirement that there be reported a 'traumatic' event, per se, in all cases. 137Further, his Honour found that, in order to satisfy the requirements of s 10B(2)(a), the former member needed to notify the Commissioner not only of an event or circumstance and a physical or psychological condition, but also that there was a connection between the two. (His Honour also described the same 'connection' requirement in terms of the need to provide notification that: events which occurred had somehow impacted upon the member; or, that the symptoms suffered by the member were a consequence of some event/s). 138His Honour's inclusion of the requirement to notify of a 'connection' in his construal of the meaning of the 'injury' to be notified under s 10B(2)(a), must again be read in light of the circumstances of the Hazlewood case. His Honour disagreed with the finding of Marks J at first instance that mere exposure to (traumatic) events constituted 'injury' for the purpose of the sub-section. In so doing he reasoned that there was a difference between exposure to events which are capable of being injurious and events which are, in fact, injurious. The difference being the fact of whether an event has in some way 'impacted' upon a person. 139It is useful to consider the literal meanings of the words 'connection', 'impact' and 'consequence'. The word 'connection' is defined by the Macquarie Dictionary as meaning: "association; relationship"; and by the Oxford English Dictionary as meaning: "the condition of being connected or joined together". The word 'impact' is defined by the Macquarie Dictionary as meaning: "to have a marked effect on"; and by the Oxford English Dictionary as meaning: "To have a (pronounced) effect on". Finally, the word 'consequence' is defined by the Macquarie Dictionary as meaning: "that which so follows; an effect or result"; and by the Oxford English Dictionary as meaning: "A thing or circumstance which follows as an effect or result from something preceding". 140The 'connection' requirement in Staff J's approach, referred to by the appellant in submissions as a 'causal link', should not be read as imposing a requirement on a former member to prove causation between an event and a condition in the strict legal sense. Rather, the requirement should be read in light of the ordinary grammatical meanings of the words 'connection', 'impact' and 'consequence' which, taken as a whole, suggest that it is the fact of an event having the effect of or resulting in an injurious outcome (that is, a condition or symptoms) that is relevant. Ultimately, this requirement is a matter of commonsense. It would be an odd situation if a member had only to report an event and some condition or symptoms (the two of which may appear to be totally unrelated, for example, a stubbed toe (event) and feelings of anxiety (symptom)), to satisfy the s 10B(2)(a) notice requirement. 141It can be taken, from a full reading of Staff J's judgment in Hazlewood, that, in his view, the 'injury' to be notified under s 10B(2)(a) was constituted by an event or circumstance (traumatic or otherwise) which impacted physiologically or psychologically (that is, it had the effect of producing a condition or symptoms), upon the former member of the police force. Submissions of the Parties 142Both parties in the present matter made some submissions as to the second issue of construction, albeit in the context of their submissions on the five questions proffered by them. 143The respondent's submissions which bear upon this issue of construction are encapsulated in two written submissions. The first was received in April 2011 and was in the following terms: Statutory notification sufficient to allow certification of PTSD under s.10B (2) was considered by the Full Bench in SAS Trustee Corporation -v-Hazlewood (2009) 188 IR 174. In essence, it requires reporting of a traumatic event, injurious consequences and a connection between the two, within the requisite statutory time frame. The matters referred to in the NSW Police Force advices to the appellant fall short of the mark. The reference to "feelings of depression" and "stress management" absent any reference to a connection with a traumatic event would not satisfy the test. 144The second submission, received in November 2011, (provided in response to question five) was expressed as follows: 30. It is common ground that the appellant was not diagnosed with the claimed condition of chronic post traumatic stress disorder before his discharge from the NSW Police Force. It was therefore, impossible to have substantially complied with the notice requirement of s.10B(2) (a). His argument in this regard depends upon acceptance of a construction of "notice" that was rejected in Hazlewood; viz, that either notification of a potentially injurious event per se or relevant symptoms from unspecified cause is sufficient. For reasons given in answer to question number 2 above, this proposition should be rejected. 31. In any event, the appellant's symptoms that he now alleges to be caused by the misdiagnosis of Lyme's disease were initially said to be caused by tick bites in the course of duty. There was no allegation prior to discharge that the appellant's symptoms were caused by exposure to the traumatic events now said to be causative of post traumatic stress disorder. It would be an intolerably strained construction of s.10B(2)(a) to accept that it was substantially satisfied by the reporting of symptoms allegedly caused by completely different events. Accordingly, the evidence in the present matter is insufficient. 145A good deal of the oral submissions of the respondent were immersed in a variety of considerations arising under question five. However, for present purposes, the following contentions may be extracted: 1. The constellation of symptoms complained of by the appellant were reported as being related to him being bitten by ticks and not in association with "horrific events". What he reported later to Dr Diamond was not what he recorded in his notices to the Commissioner. It was submitted that there was no evidence whatsoever about complaints being made at the time "about those symptoms or even trying to link up those symptoms with those events prior to resignation". 2. There was an absence of complaint about factors such as flash backs, nightmares, intrusive thoughts and avoidance behaviour prior to the appellant's medical discharge. His complaints were restricted to memory lapses, problems with concentration and a reference to depression. There is also a reference to fatigue, dizzy spells, joint pains, wrist and neck problems, shooting pains in the hands and back of ears, calves, concentration and poor memory. There was paresthesia in the soles of the feet and poor sleep. All these symptoms were linked to tick bites. There was no notice, at the stage these complaints were made, of any allegation that the complaints were linked to injury at work. 146Hence, the submissions of the respondent as to the second issue of construction appear to be entirely based upon a strict application of the approach taken by Staff J in Hazlewood (set out above). 147The appellant's submissions, in this respect, received in November 2011, were generally corralled under the heading 'What Constitutes Notice of Injury' and were expressed in the following terms: 73. The word "injury" appearing in s.10B(2)(a) is not defined in the legislation. Consistent with the purpose of the legislation, it is submitted that it is proper to give the word its usual dictionary definition. The Macquarie Encyclopaedic Dictionary, relevantly, defines "injury" thus:- "1.Harm of any kind done or sustained: to escape without injury 2.A particular form or instance of harm: severe bodily injuries..." 74. Consistent with the purpose of the legislation, "injury" as contemplated in s.10B(2)(a) can mean either an event causing harm or the onset of harm (in the form of symptoms either physiological or psychological) or both: see Australian Conveyor Engineering Pty Limited v Mecha Engineering Pty Limited (1998) 45 NSWLR 606 at 617 per Powell JA and Lyons v Master Builders Association of NSW Pty Limited (2003) 25 NSWCCR 422 per Neilson J at paragraph 22. 75. This definition of "injury" would mean that notification was sufficient to satisfy s.10B(2)(a) if there is notification of an incident capable of causing injury and, ultimately, infirmity. Also, notification would be sufficient if there has been a report of symptomatology to the Commissioner, that symptomatology being causative of the relevant infirmity. 76. This approach to the definition of "injury" appearing s.10B(2) avoids any overlap in the role Parliament has allocated, on the one hand to the Respondent, and, on the other hand, pursuant to s.10B(3)(a) to the Commissioner. 77. This interpretation also allows for the fact that notification might be given (and in the present case was given) by a police officer or his medical advisers of a symptom complex not properly diagnosed and, in fact, misdiagnosed. 78. This interpretation also allows for the fact that there may be (particularly in cases involving psychological injury) delayed onset of symptoms following a relevant causative event. 79. As will be appreciated, having established notification of injury, the Respondent is still obliged, pursuant to s.10B(2), to satisfy itself of the existence of the relevant infirmity as at the date of the former police officer's resignation or retirement. 80. The reasoning of the Full Bench in Hazlewood can be found in the judgment of Staff J (with whom Walton J agreed) commencing at paragraph 90. With respect, His Honour applies a definition of "injury" unnecessarily narrow. In so doing, His Honour, effectively, reads into s.10B(2)(a) a requirement for a factual determination very similar to the factual determination required of the Commissioner under s.10B(3). Such a narrow definition of "injury" is inconsistent with the purpose of the legislation (as earlier discussed). 148The appellant also submitted: 109. The Respondent is entitled to cast its fact-finding net widely to discover relevant "elements of a condition" and is entitled to draw upon all relevant evidence in determining whether or not there is evidence of a former police officer notifying the Commissioner of a relevant injury. 110. It is not necessary for there to be a causal link identified or claimed within the time frames contemplated by s.10B(2). Rather, the Respondent need only have credible evidence that the "elements" notified establish injury causative of the relevant infirmity. In those circumstances, it is sufficient for the Respondent to be satisfied either of an injurious event capable of causing the relevant infirmity or of the onset of symptoms capable of causing the relevant infirmity. 111. It is fundamentally important, in determining the factual question of notification of injury, that the focus remains on either the injurious event or onset of symptoms. The diagnostic label attached to a symptom complex should not be seen as determinative especially when, as in the present case, there is now a substantial body of medical evidence available to the Respondent which identified the symptoms complained about by the Appellant prior to his medical discharge as consistent with the infirmity of post traumatic stress disorder. 149Further, in supplementary submissions filed in December 2011, the appellant submitted: The applicant reiterates his position that the word injury should be given its ordinary meaning consistent with the preferred purposive approach to statutory interpretation, see Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [12] - [14], that is an event causing injury or the onset of symptoms. Contrary to the Respondent's submission, this does not involve a strained interpretation of the word injury. 150Hence, the submissions of the appellant as to the second issue of construction do not follow the approach taken by Staff J in Hazlewood. The appellant submitted, rather, that notice of either an event or the onset of symptoms capable of causing the relevant infirmity (as opposed to notice of both an event and a condition or symptoms as well as a connection between the two per Staff J in Hazlewood) constitutes notification of injury under s 10B(2)(a). Consideration: Second Issue of Construction The Statutory Scheme 151Part 3 of the PRS Act (entitled 'Police Superannuation Fund') provides that there shall be established a Police Superannuation Fund which, subject to the Act, is under the control of the STC (s 3(1)). By s 3(3)(a), the STC must pay out of the fund the benefits provided by the Act. 152By Pt 4 (entitled 'Benefits'), Div 1 (entitled 'Superannuation allowances and gratuities') of the PRS Act, members of the police force are entitled to be paid certain benefits. The Division provides that a member who has 20 years service and who is medically discharged, or who is aged 60 years or more and retires, is entitled to a pension based upon their years of service: ss 7(1) and 8. A gratuity is also payable to a former member who is medically discharged with less than 20 years service: s 14. The Division also allows for the release of benefits on the grounds of severe financial hardship (s 12F) or on compassionate grounds (s 12G). 153In addition to the benefits normally provided to retired and medically discharged members under the Division, provision is made under s 10(1A) for the payment of an additional superannuation allowance to a 'disabled member of the police force' (defined under s 10(1) as a retired member or former member who has been certified pursuant to ss 10B(1) or (2) to be incapable of exercising the functions of a police officer from a specified infirmity of body or mind, which infirmity is determined to have been caused, pursuant to s 10B(3), by the member having been hurt on duty). (The Division also makes provision under ss 12, 12B and 13A for the payment of superannuation allowances and gratuities to next of kin if a member has died as a result of being hurt on duty). 154Section 10 of the PRS Act is as follows: 10Superannuation allowance where member hurt on duty (1) In this section: ... disabled member of the police force means: (a) a member of the police force who is discharged after being certified, pursuant to section 10B (1), to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990, or (b) a former member of the police force who resigned or retired and who, according to a certificate given pursuant to section 10B (2) at any time after the member's resignation or retirement, was incapable, from an infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member's resignation or retirement, that infirmity being determined, pursuant to section 10B (3) or on appeal, to have been caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be. retired includes discharged as referred to in section 7 or 14. (1A) Subject to this section, the annual superannuation allowance for a disabled member of the police force is: (a) an amount that is equal to 72.75 per cent of the member's attributed salary of office, (b) except where paragraph (c) applies, an additional amount that is: (i) not more than 12.25 per cent of the member's attributed salary of office, and (ii) commensurate, in the opinion of STC, with the member's incapacity for work outside the police force, and (c) if the disabled member is totally incapacitated for work outside the police force and, in the opinion of STC, the member was hurt on duty because the member was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment, an additional amount that is: (i) not less than 12.25 per cent and not more than 27.25 per cent of the member's attributed salary of office, and (ii) commensurate, in the opinion of STC, with the risks to which the member was so required to be exposed, multiplied by the equivalent service ratio of the member as at the date of the member's discharge, resignation or retirement. (1AA) If STC has made a determination under section 14AA in relation to an annual superannuation allowance payable under this section, the amount of the allowance is reduced by the amount specified in STC's determination. (1B) An annual superannuation allowance may be granted under this section to a disabled member of the police force whatever the member's length of service. (1BA) A superannuation allowance referred to in subsection (1A) or an additional amount of a superannuation allowance referred to in subsection (1D) is not payable to a disabled member of the police force unless an application for payment of the allowance or additional amount concerned is made: (a) before the member reaches the age of 60 years, or (b) not later than 5 years after the member resigns or retires, whichever is the later. (1C) Where a former member of the police force who resigned or retired is granted an annual superannuation allowance under this section, the allowance shall, at the time it first becomes payable, be increased or reduced, as the case may require, by the total amount (if any) that it would have been increased or reduced under Division 2 or any other provision of this Act if it had been granted when the former member resigned or retired. (1D) STC may: (a) make a determination at any time of an additional amount of a superannuation allowance under this section, and (b) vary any such determination at any time, and may direct that the determination or variation take effect from such date as STC considers appropriate. (2) An annual superannuation allowance under this section shall not be payable to a former member of the police force who: (a) wholly commuted under Division 3 a superannuation allowance that previously became payable to the former member under this Act, or (b) has been paid a disengagement benefit under section 8A. (3) If a superannuation allowance payable to a former member of the police force was partially commuted under Division 3, the allowance payable under subsection (1A) in respect of the member is to be reduced by the proportion that the commuted part of the superannuation allowance bears to the whole of the superannuation allowance. (4)-(7) (Repealed) 155The statutory scheme (see Deputy Federal Commissioner of Taxation for the State of South Australia v Ellis & Clark Limited (1934) 52 CLR 85 at 89) incorporates elements of the workers compensation legislation in New South Wales. By s 1(2) of the PRS Act, 'hurt on duty' is defined to mean injured in such circumstances as would entitle the member, if the member were a worker within the meaning of the Workers Compensation Act 1987 ("the WC Act"), to compensation under that Act. Section 1(2) of the PRS Act is as follows: 1 Name of Act, commencement and definitions (2) In this Act, except to the extent that the context or subject-matter otherwise indicates or requires: 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. 156Division 1 of Pt 4 of the PRS Act is plainly beneficial in character, and special benefits are available to members hurt on duty. That being said, Wright J, in Commissioner of Police v SAS Trustee Corporation (2002) 131 IR 243; [2002] NSWIRComm 31, was correct in finding, in our view, that, whilst the purpose of the PRS Act is to, inter alia, provide valuable benefits to former members of the police force in relation to retirement arising from hurt on duty situations, the Act provides safeguards to ensure benefits are conferred in a 'balanced and careful' way so as to insure against their inappropriate receipt. There is a balance between the valuable benefits provided to members of the police force and the rights and responsibilities granted to the STC and the Commissioner of Police. The following passages from the judgment of Wright J, at [42] and [45] - [46], illustrate this point: 42 In addition to the matters referred to by the High Court, it is also relevant in a case as complex as the present to have particular regard to the mandate of the legislature as to purposive construction to be found in s 33 of the Interpretation Act 1987 where courts are required to prefer a construction which would promote the purpose or object underlying the statute (whether that purpose or object is expressly set out in the statute) to a construction which would not promote the purpose or object. See, for example, the judgment of McHugh J in Saraswati v The Queen (1991) 172 CLR 1 at 21 and also the reference in Commonwealth Bank v Hadfield [2001] NSWCA 440 at [57], to another judgment of McHugh J, Malakai Holdings v Stretton (2001) 178 ALR 218 at 225. ... 45 I consider that the purpose or object of the legislation, or at least so far as is relevant to the present proceedings, is to provide valuable benefits to police officers and former police officers in relation to retirement arising from "hurt on duty" situations but to do so in a measured and careful way which allots certain responsibilities for the rather complex process involved, which are, and are to be seen to be, commensurate with the important rights and responsibilities granted to the STC and to the Commissioner of Police. 46 It may be that the rather complex scheme attempts to achieve a balance, on the one hand, between the valuable rights and the need, on the other hand, for caution in too readily extending those rights if that might result in inappropriate receipt of the allowance. There seems also to be an attempt to balance the recognition of the valuable role of police officers for their service in the public interest (with the consequent entitlement for officers subject to an adverse decision to have certain rights of appeal), with corresponding rights of appeal by the relevant authorities in the case of a decision in favour of police officers. 157Some of the most valuable benefits in the PRS Act are those provided, as mentioned, under s 10, to members in relation to retirement arising from hurt on duty situations. By s 10(1A), a 'disabled member of the police force' - that is, a member who has been hurt on duty - is entitled to a superannuation allowance of 72.25 per cent of their salary, plus an additional amount of up to 27.25 per cent if the member has been totally incapacitated for work as a result of his or her injury. Section 10(1) provides that a former member of the police force who has resigned or retired may apply, at any time after his or her resignation or retirement, for the hurt on duty benefit. (A member who 'retired' includes, under s 10, a member who was discharged as referred to in ss 7 and 14). Indeed, in the present case, the appellant first applied for the allowance for the claimed infirmity of chronic post traumatic stress disorder under s 10B(2) some seven years after he was discharged from the police force. 158Access to the benefits under s 10, however, is subject to certain conditions, set out under s 10B, being met. By s 10B, the benefit will not be paid to a member (s 10B(1)) or a former member (s 10B(2)) unless the STC has certified the "infirmity of body or mind" which has led to the member's incapacity. Having been certified under sub-ss (1) or (2), the benefit will still not be paid to a member unless the Commissioner of Police determines that the certified infirmity was caused by the member having been hurt on duty (s 10B(3)). 159Section 10B of the PRS Act is as follows: 10B Medical examination of disabled member and determination of whether hurt on duty (1) An annual superannuation allowance or gratuity must not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 . (2) An annual superannuation allowance or gratuity must not be granted under section 10 to a former member of the police force who resigned or retired unless: (a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, and (b) if the regulations so require, the notification was in the prescribed form, and (c) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was incapable, from that infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member's resignation or retirement. (3) Where a member or former member of the police force is duly certified under subsection (1) or (2), the Commissioner of Police shall: (a) decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be, and the date or dates on which the member or former member was hurt on duty, and (b) give the member or former member written notification of the decision. 160In light of Wright J's description of the PRS Act above, s 10B can be read as constituting part of a 'measured and careful' set of conditions which guard against an over-extension of the rights provided under s 10, and insure against the inappropriate receipt of the additional hurt on duty allowance. So much is clear from the language of ss 10B (1) and (2), the requirements of which are expressed in mandatory terms: an annual superannuation allowance or gratuity must not be granted under s 10 to a member or former member of the police force unless the conditions set out under s 10B have been satisfied. The High Court of Australia, in Posner v Collector for Inter-State Destitute Persons (Vic) (1946) 74 CLR 416 (at 490), held that 'must' is not merely directory, but a word of absolute obligation. Such language is to be considered as "imperative" (Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269 at [46]). 161The additional superannuation benefits provided by s 10 are, therefore, significant, however limited by the operation of s 10B. In relation to former members, there is an additional limitation in the form of a requirement of notice under s 10B(2)(a). By that sub-section, former members, in order to have an infirmity certified by the STC under s 10B(2), must have notified the Commissioner of Police of the injury which caused the infirmity (which infirmity led to the member's incapacity for work) before the member's resignation or retirement and within six months of receiving the injury. 162The notification required under s 10B(2)(a), when seen in this light, is intended to regulate and confine access by former members to the additional superannuation benefits, provided under s 10, in relation to retirement arising from hurt on duty situations. At issue in the present case is what constitutes 'notice of injury' in terms of s 10B(2)(a). What is meant by notification of "the injury which has caused the member's infirmity of body or mind" under s 10B(2)(a)? 163In submissions, the parties used, variously, the phrases "notice of injury" and "notification of injury" to describe the requirement under s 10B(2)(a), particularly when submitting as to what action was required of a former member to comply with the sub-section. The phrases were likely employed by the parties as a matter of convenience. It should be noted, however, that the sub-section does not use that precise terminology. What is required under s 10B(2)(a), rather, is that the former member has "notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury". This distinction is not one of mere semantics. As we will discuss, the particular wording of the sub-section must and does bear upon the proper interpretation of the provision. 164It is convenient to pause to consider two contemporary authorities which illustrate the proper approach to the construction of s 10B(2)(a). 165The first is the judgment of Spigelman CJ in Caterpillar Australia Pty Ltd v Industrial Court of New South Wales (2009) 255 ALR 131 where, at [86] his Honour stated: It is now well established that the contemporary approach to statutory interpretation requires a court to have regard to the context in which words appear in the first instance and not merely after some ambiguity has been identified. (See eg CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 405; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 at [11].) 166The second is the judgment of the High Court, in Australian Education Union v Department of Education and Children's Services (2012) 285 ALR 27; 86 ALJR 217; [2012] HCA 3, where, at [26] - [28], it was held, per French CJ, Hayne, Kiefel and Bell JJ: [26] The disposition of this appeal turns upon the correct construction of s 9(4). The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose. According to the construction adopted by the IRC and the Full Court of the Supreme Court, the power conferred by the subsection extended to the appointment of persons as teachers. On the construction for which the union contends, the power did not extend to such appointments. [27] There are textual and purposive indicators to be considered in determining the preferred construction. Also applicable is s 22(1) of the Acts Interpretation Act 1915 (SA) which relevantly provides: ... where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object. [28] The reasoning in the IRC was informed by the view that it was desirable that the minister have flexibility in the appointment of teachers and that Pt III of the Act might be "unnecessarily prescriptive" in its application to the ad hoc appointments of relief teachers in diverse circumstances. This approach, with respect, emphasised a judicially constructed policy at the expense of the requisite consideration of the statutory text and its relatively clear purpose. In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose. The statutory purpose in this case was to be derived from a consideration of the scheme of the Act as a whole, the respective functions of Pts II and III of the Act, and the regulatory requirements of Pt IV of the Act. Can the reporting of either an event capable of causing harm or of symptoms alone constitute compliance with s 10B(2)(a)? 167As earlier mentioned, the appellant sought to rely upon the dictionary definition of the word 'injury' - which definition referred to the word as meaning "harm sustained", and "a particular form of harm" - to contend that either notification of an event capable of causing harm or notification of the onset of harm in the form of symptoms would be sufficient to satisfy the s 10B(2)(a) notice requirement. 168The appellant contended, in this respect, that Staff J in Hazlewood applied a definition of injury which was unnecessarily narrow, because his Honour concluded that both elements were required in order to satisfy the notice provision. 169However, we do not consider a reference to the dictionary definitions of 'injury' is conclusive of the question of construction. The ordinary meaning of the word 'injury' is also consistent with Staff J's approach in that it is permissive, in the context of s 10B(2)(a), of both meanings being applicable rather than each being mutually exclusive. In any event, the dictionary definition illustrates that a mere reference to a notification of an 'injury' is ambiguous. 170As will be observed from the aforementioned authorities, a proper approach to interpretation requires a broader context to be considered. It is not appropriate to consider the meaning of the word 'injury', in s 10B(2)(a), in isolation from the context in which it appears in the PRS Act. There are four different levels under which such an analysis may be undertaken in this case: first, at the level of the sub-section itself; secondly, the section under which the sub-section falls; thirdly, in light of the prescribed form of notice; and, fourthly, in terms of overall statutory scheme and legislative purpose. 171The immediate broader context is, of course, the sub-section itself. By s 10B(2)(a), the 'injury' which is to be notified to the Commissioner of Police is the "injury which has caused the member's infirmity of body or mind" (emphasis added). The sub-section also requires notification of the 'injury', "before the member's resignation or retirement and within 6 months of receiving the injury" (emphasis added). 172Indeed, the word 'injury' in s 10B(2)(a) should be viewed as a subordinate clause, that is, a word which cannot stand apart from the words in the sentence that follow it. The word 'injury' must take its meaning from the words "which has caused the member's infirmity...", and should not be given a meaning separate from those words. 173When considered in the context of the entirety of the sub-section, then - that is, that the injury to be notified is something that has 'caused' an infirmity and something which has been 'received' - it is difficult to accept the appellant's submission that the 'injury' to be notified under s 10B(2)(a) can be construed as meaning the onset of symptoms alone (or, for that matter, an event capable of causing the ultimate infirmity alone). The balance of the sub-section, including the words 'cause' and 'receiving', must have a bearing upon the meaning given to the notion of notification of injury under s 10B(2)(a). 174Secondly, the injury to be notified under the sub-section should be considered in the context of the section under which the sub-section falls. In this respect, the appellant contended that if the injury to be notified under s 10B(2)(a) is construed as meaning either an incident capable of causing harm or symptomatology being causative of the relevant infirmity, an overlap would be avoided between the role of the STC, on one hand, and the Commissioner of Police on the other. The appellant contended, in this regard, that the definition of injury per Staff J in Hazlewood effectively reads into s 10B(2)(a) a requirement for a factual determination required of the Commissioner of Police under s 10B(3). 175Under s 10B, a member (sub-s (1)) or former member (sub-s (2)) will not be granted an annual hurt on duty allowance or gratuity under s 10 unless the STC certifies the member is (or former member was) incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer. As noted, the notice requirement under sub-s (2)(a) applies only to former members who, sometime after their retirement, apply for the additional hurt on duty benefit. Sub-s (3) becomes applicable after a member or former member has been duly certified by the STC under sub-ss (1) or (2). Sub-s 3(a) provides that the Commissioner of Police must then determine whether or not the infirmity to which the certificate relates was "caused by the member [or former member] being hurt on duty". By this sub-section, the Commissioner, in so determining, is required to decide "the date or dates on which the member or former member was hurt on duty". By sub-s (3)(b), the Commissioner must then give the member or former member written notification it its decision. 176As noted, it was contended by the appellant that the approach taken by Staff J effectively required the STC, under s 10B(2)(a), to make the same factual determination required of the Commissioner of Police under s 10B(3). Such an overlap in roles, it was contended, would otherwise be avoided if the 'injury' to be notified under s 10B(2)(a) was construed as meaning either an event capable of causing harm or the onset of harm in the form of symptoms. 177We accept that, if the connection requirement proffered by Staff J was construed as meaning a causal link between an injurious event and the ultimate condition or infirmity, there may be a collision between notice requirements, so found, and the role of the Commissioner under s 10B(3). However, when properly understood, Staff J's analysis is confined to a consideration of what constitutes notice of injury under s 10B(2)(a), and should not be read as extending beyond that to include the ultimate infirmity. Staff J's approach required the STC, under s 10B(2)(a), to be satisfied that notification was given of an 'injury' (being constituted by notification of an event and a condition and a connection between the two); the requirement of the Commissioner under s 10B(3) is to be satisfied of a connection between the ultimate infirmity (caused by the injury referred to in s 10B(2)(a) but not the same as the injury) and the member's work. Understood in this way, there is no overlap between the role of the STC under s 10B(2)(a) and the Commissioner under s 10B(3). 178Thirdly, the ascertainment of the meaning of the injury to be notified under s 10B(2)(a) may be assisted by considering the form of notice prescribed by the legislation. Section 10B(2)(b) states that, "if the regulations so require, the notification was in the prescribed form". 179We agree with the judgments of Boland and Staff JJ in Hazlewood, where their Honours found that, although the form of notice is contained in Sch 3 of the Police Superannuation Regulation 1984, which Regulation is now repealed, it remains in force in accordance with various savings and transitional provisions that applied after the repeal of the Regulation. 180The appellant, in the present case, submitted as to this issue: For completeness, it is noted that the Appellant did not complete a form as contemplated by s.10B(2)(B). However, to the extent that this may be of concern, strict compliance with the form is not required. Substantial compliance is sufficient: s.80(1) Interpretation Act, 1987 and Hazlewood per Boland J. paras 45 - 47. 181The respondent submitted as to this issue: 20. In the Respondent's submission, substantial compliance would dictate that the notification must, at the very least, be in writing and allege relevant injurious consequences. 21. In the present matter the Appellant was attested on 7 December 1984 and medically discharged on 5 May 1998. It is common ground that he was on sick report from 28 June 1996. Accordingly, the prescribed form of notice of injury was unarguably in force during the majority of this period of service (up to 1/9/95) and, probably, throughout this period. The Appellant made a number of written reports of injury both in the prescribed from and in a form that would, arguable, substantially comply with the prescribed form. However, none of these notices could have been construed as relevant to the infirmity of post traumatic stress disorder now claimed. 182The reports in the prescribed form to which the respondent referred are two 'Report of Injury Received Whilst on Duty Whilst Travelling to or From Duty, or Whilst Participating in Organized Police Sport' reports relating to the appellant's involvement in a car crash on his way to work in 1989 (after which the appellant suffered "pains to my throat, neck, back") and an incident during which the appellant was dragged down a road by a motor bike for 15 metres in 1990 (after which the appellant suffered "severe pain to neck, back and right leg"). The report that the respondent referred to as substantially complying with the prescribed form is a 'New South Wales Police Service COPS' report from 1996, which provides details about the appellant having sustained tick bites. 183Clause 6 of the 1984 Regulation states that "A notification of injury under s 10B(2)(a) of the Act shall be in or to the effect of the form in Schedule 3." The Schedule 3 form of notice is headed "Form to be Used for Notification of Injury. Report of Injury Received Whilst on Duty Whilst Travelling to or From Duty, or Whilst Participating in Organised Police Sport". The form contains numerous sections including: Name; Station; Date of Injury; Day of the Week; Time; Details of Incident Which Resulted in Injuries being Received; Nature of Injuries; Name of Doctor Consulted; Name of Witness(es) or Station and Police Officer Incident Reported to. 184In Hazlewood, Boland J, at [47], and Staff J, at [111], found that the former member failed to substantially comply with the Schedule 3 form of notice. There was, however, no explanation given by their Honours as to why the member had not substantially complied, nor as to what action was required of the former member in order to have achieve substantial compliance. 185Putting aside, for a moment, the question as to whether the appellant substantially complied with the form of notice, the contents of the form give some indication as to what sort of information the legislature contemplated being notified by the enactment of s 10B(2)(a). The sections of the form, which inquire as to the date, time and other details of the incident which resulted in injuries being received tend to indicate that the 'injury' contemplated in s 10B(2)(a) would typically related to some identifiable event. 186Hence, when considered in light of the prescribed form of notice, it is difficult to accept the appellant's contention that the reporting of the onset of symptoms capable of leading to the ultimate infirmity, in the absence of the reporting of a known event or circumstance somehow connected to the symptoms, can properly be construed as the 'injury' required to be notified under s 10B(2)(a). 187Finally, the ascertainment of the meaning of the injury to be notified under the sub-section is further assisted by a consideration of the overall statutory scheme, discussed earlier in this judgment, within which it falls. As noted, the statutory scheme is one which entitles members of the police force to be paid certain benefits in the form of superannuation allowances and gratuities, and additional benefits in relation to members who are hurt on duty. Sections 10 and 10B in turn concern hurt on duty benefits. As noted, the PRS Act, by s 1(2), provides a direct link between hurt on duty claims and the WC Act. 188It follows that the meaning of 'injury' in the WC Act has the potential to inform a consideration of the meaning of 'injury' in s 10B(2)(a) of the PRS Act, although this approach should be adopted with care, taking into account the different statutory schemes under the PRS and WC Acts. 189There is no notice provision per se under the WC Act. However, by s 2A, the WC Act is to "be construed with, and as if it formed part of" the Workplace Injury Management and Workers Compensation Act 1998 ("the WIMWC Act"). The WIMWC Act contains a notice provision under s 254 which is similar to that found in s 10B(2)(a) of the PRS Act. Section 254 of the WIMWC Act is as follows: 254 Notice of injury must be given to employer (1) Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury. (2) The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section. (3) Each of the following constitutes special circumstances: (a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice, (b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause, (c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened, (d) the injury has been reported by the employer to the Authority in accordance with this Act. (4) In addition, if the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop, each of the following constitutes special circumstances: (a) the summary referred to in section 231 has not been posted up in accordance with that section or the employer has otherwise contravened that section, (b) the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011, (c) the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop. 190Section 254(1) of the WIMWC Act, like s 10B(2)(a) of the PRS Act, is mandatory in terms: neither compensation nor work injury damages are recoverable by an injured worker unless notice of injury has been given. However, the notice provision in the WIMWC Act differs slightly from that provided in the PRS Act. Whereas the 'injury' to be notified under s 10B(2)(a) is the "injury which has caused the member's infirmity of body or mind", s 254(1) of the WIMWC Act requires only "notice of the injury" to have been provided by the employee to the employer within a specified time period. "Notice of injury" in s 254(1) stands alone within that sub-s; there is no reference to the injury having been 'received' or having 'caused' an incapacity for work. In addition, by s 254(2), the WIMWC Act provides that, in certain circumstances, the absence of notice of injury will not be fatal to a worker's claim for compensation. 191The notice provision under the WIMWC Act was discussed by the Court of Appeal in Wollongong Fabrications Pty Ltd v Ramsbottom [2006] NSWCA 279 ("Ramsbottom"). The Court, in that case, considered whether the requirement for "notice of injury" in s 151C(1) of the WC Act (regarding the commencement of proceedings against an employer for common law damages) could be construed as having the same meaning as the requirement for "notice of injury" under s 61 of the WIMWC Act (regarding claims for workers compensation). (NB: s 61 (referred to by the Court of Appeal in Ramsbottom) is the notice provision which applies in respect of injuries received before 2001. Section 254 (set out above) is the notice provision which applies in respect of injuries received after 2001. Sections 61 and 254, however, are, for relevant purposes, the same). 192In Ramsbottom, Tobias JA (Mason P and Hodgson JA agreeing), at [110], held that, given the WIMWC Act provides no definition of the expression "notice of injury", the expression must be interpreted in the context of the statutory scheme under which it falls: 110 Although at first sight this argument seems to have merit upon the basis that in the same Act the same construction should be given to identical expressions, I have ultimately come to the view that that is not so in the present case. As the opponent submitted, there is no relevant definition of the expression "notice of the injury". On the contrary, s62(1) of the WIM Act merely determines what such a notice must state. More significantly, s61(1) refers to the giving of a notice of the injury before compensation may be "recovered under this Act". In other words Div 1 of Pt 2 of the WIM Act which contains ss61, 62 and 65 (and which provide for the making of a claim for compensation) all proceed upon the assumption that the injured worker will then actually recover or receive compensation from the worker's employer pursuant to s9(1) of the WC Act. ... 113 In the foregoing circumstances, in my opinion, it is not possible to construe the expression "notice of the injury" in s151C(1) as meaning a notice that meets the requirements of s62(1) merely because s61(1) uses the expression "notice of the injury" and s62(1) provides for what that notice must state. Furthermore, given that s151C provides a regime referable to damages while ss61-62 relate to compensation, there is some difficulty in concluding that the provision for the giving of notice of the injury in one is directly comparable to the giving of such a notice in the other. ... 123 In my opinion the structure of the legislation is such that the statutory requirements with respect to the recovery of compensation by an injured worker are required to be more formal and detailed than in the case of a claim for modified common law damages. Details of any such claim would normally be found in the initiating process including the particulars which under the relevant rules of court are required to be given. Section 151C(1) merely provides a breathing space of six months for the parties, if they wish, to negotiate an out of court settlement or otherwise to provide the employer with the opportunity of further investigating the matter including the extent, if any, of its common law liability in respect of the injury concerned. 124 It follows, in my view, that the notice of injury required to be given pursuant to s151C(1) is not required to provide information as to the cause of the injury or of the accident out of which the injury arose provided that sufficient information is given to enable the employer to appreciate that the worker has sustained an injury at a particular time, date and place which was work related. As such, the information must be sufficient to put the employer on sufficient notice to enable it to investigate the circumstances under which the injury arose. That does not mandate the notice to state the cause of the injury or details of the work being performed when the injury was sustained. 193Similarly, the PRS Act contains no definition of the terms 'notification' or 'injury'. However, the approach taken by the Court in Ramsbottom - focussing as it does on the need to construe the meaning of "notice of injury" in the context of the statutory scheme under which it falls - conforms to the contextual approach to construing the words of a section. 194As to the meaning of 'injury', s 4 of the WC Act provides the following: 4 Definition of "injury" (cf former s 6 (1)) In this Act: injury: (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, and (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and (c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined. 195As noted, it was the appellant's contention that the word 'injury' in s 10B(2)(a) of the PRS Act should be construed as meaning either an event capable of causing harm or the onset of harm in the form of symptoms. Specifically, the appellant argued that his reporting of various symptoms in medical reports, COPs reports and clinical notes available to the Commissioner before his medical discharge in 1998, constituted compliance with the s 10B(2)(a) notice provision. The appellant relied, in support of this proposition, on the meaning given to the definition of 'injury' under s 4 of the WC Act by two workers compensation authorities: Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd and Another (1998) 45 NSWLR 606 ("Mecha") and Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 ("Lyons"). 196The case of Mecha involved a claim for compensation by a worker who had suffered a fall at work, which had the result of aggravating and making symptomatic a degenerative spinal condition suffered by the worker. The Court of Appeal held (at 617) that, if there can be identified an incident which involves a physical change in a worker (in that case, the fall which aggravated the worker's pre-existing condition), that incident is to be regarded as an 'injury' within the meaning of s 4 of the WC Act. In so holding, the Court of Appeal applied the reasoning of the majority of the High Court in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 in which it was held that the rupture of an intracranial arterial aneurism - the aneurism being part of an autogenous disease - was an 'injury' within s 4 of the WC Act. The relevant passage from Mecha (at 617) is as follows: ... if there can be identified an incident which involves - either by being itself the change, or by bringing about the change - a physical change in the worker, then - even though that change may be no more than the culmination of a progressive disease, and not the product of some external force - that damage is to be regarded as an "injury" within the meaning of par (a) of the definition of "injury" in s 4 of the Act; and, secondly, that, if such "injury" arises out of or in the course of the worker's employment, and causes incapacity for worker to the worker ... the worker ... will be entitled to receive compensation calculated in accordance with the provisions of the Act. ... 197The case of Lyons involved a claim for compensation by a worker who had suffered a fall at work, which fall had the result of initiating a degenerative disease process in the worker's knee. In fact, in Lyons, the worker identified two incidents of falling at work. The first incident was asymptomatic and, therefore, was held not to be an injurious event entitling the worker to compensation. Whereas the second fall, which resulted in the worker suffering physical symptoms which were ongoing and which were consistent with the ultimate "pathology" rendering him incapable of working, was held to be compensable. The Compensation Court, per Neilson J, applied the reasoning of the Court of Appeal in Mecha, holding, at [22], that while the word 'injury' in its ordinary sense refers to both the injurious event and the condition arising from it, the WC Act makes the receipt of injury compensable, not the injury itself. The relevant passage from Lyons at [22] is as follows: ... Here I have found a frank injury initiated chondromalacia patellae which is a degenerative disease process. This should be the injury simpliciter within s 4 and one does not need to have recourse to s 15 or s 16 of the Act. Indeed, if I might respectfully say so, the majority decision in Colliar v Bulley really fails to distinguish between the receipt of the injury or the injurious event and the pathology arising from the event. Unfortunately, the word "injury" refers to both the event and the pathology arising from it. It is often necessary to draw the distinction. The Act itself makes the receipt of injury compensable, not the injury itself. 198It follows, then, that, in terms of the definition of 'injury' in s 4 of the WC Act (according to the Courts in Mecha and Lyons), what is compensable is the injurious event - that is, an event capable of causing injury which does, in fact, cause injury (as opposed to an event capable of causing injury but which is asymptomatic). While, in that respect, the existence of a symptomatology (which symptomatology must be consistent with the ultimate "pathology", or, in terms of s 10B(2)(a), the ultimate "infirmity") is relevant, both Lyons and Mecha emphasise that it is the "receipt of injury" (Lyons), or the 'incident', "if there can be identified an incident" (Mecha) that is compensable. What the injury ultimately eventuates as (that is, the infirmity caused by the injury) is irrelevant. This is consistent with the approach adopted by Staff J. in Hazlewood, to construing the injury to be notified under s 10B(2)(a). 199It is convenient to pause at this point to make note of a recent judgment of Neilson J, in Page v Commissioner of Police (No. 1) (unreported Matter No RJ00328/09, 31 May 2012), to which the appellant referred shortly before the delivery of this judgment, in which his Honour revisited his decision in Lyons. However, relevantly to the present matter, his Honour did not depart from the views he expressed therein. (We also note that, despite some discussion by his Honour as to the correctness of the judgment in Hazlewood in relation to the meaning of the word 'injury' in s 10B(2)(a) of the Act, his Honour did not make reference to the judgment of Staff J in that respect). 200Under the WC Act, the 'injury' which is compensable is the injurious event - that is, an event capable of causing harm which does in fact cause harm. The workers compensation authorities, in this respect, do not provide support for the contention of the appellant that the reporting of either an event capable of causing harm or of symptoms alone can constitute compliance with s 10B(2)(a). 201From a purposive perspective, s 10B(2)(a) is directed to the regulation and confining of access to the additional hurt on duty superannuation benefits provided under s 10 of the PRS Act. Section 10B(2) allows for former members to access this benefit many years after their retirement. The notice provision in s 10B(2)(a) is an important means of controlling such claims when such an extended period is involved. Indeed, in taking the approach that he did to the construction of s 10B(2)(a), Staff J noted his view, in Hazlewood at [98], that the notification provision in s 10B(2)(a) had been chosen by the legislature as a means of controlling access to valuable benefits which can be applied for by former members many years after their retirement. When considered in this light, it is difficult to agree with the contention of the appellant that s 10B(2)(a) can be satisfied simply by the notification, in time, of a range of symptoms which may be consistent with the ultimate infirmity. In order to serve its purpose as constituting part of a 'measured and careful' set of conditions guarding against an over-extension of the rights provided under s 10, it is likely that the sub-section requires some action by members beyond the mere reporting of symptoms. 202The foregoing analysis of the operation of s 10B(2)(a), in particular what is meant by notification of injury, leads to a conclusion broadly consistent with the views formed by Staff J in Hazlewood. There is, however, a further issue bearing upon the construction of s 10B(2)(a) which must be grappled with before a definitive conclusion can be reached, that is: the application of the provisions of the PRS Act, in particular s 10B(2)(a), to a claim involving psychological infirmity. What about psychological infirmities? 203The PRS Act expressly contemplates that the additional hurt on duty superannuation allowance provided under the Act will be payable in circumstances where a member or former member suffers a certified psychological illness which occurred as a result of their employment. So much is clear from the wording of ss 10(1) and 10B, which sections relate to the hurt on duty allowance. Section 10(1) defines 'disabled member of the police force' as a member who is incapable "from a specified infirmity of ... mind" of personally exercising the functions of a police officer. By ss 10B(1) and 2(c), a member or former member, respectively, will not be granted a gratuity or allowance under s 10 unless he or she has been certified incapable of performing the work of a police officer from an "infirmity of ... mind" by the STC. Section 10B(2)(a) requires a former member to have notified the Commissioner of Police of the injury which caused the member's "infirmity of ... mind". 204What, then, is meant by the phrase 'infirmity of mind'? 205The recognition of psychological illness in the definition of 'injury' in s 4 of the WC Act will be instrumental in reaching an answer to that question. 206As already mentioned, under s 10(1A) of the PRS Act, an additional superannuation allowance is payable to members and former members who are certified as being incapable of performing the work of a police officer from an infirmity of mind caused by being hurt on duty. 'Hurt on duty', by s 1(2) of the PRS Act, means injured in such circumstances as would, if the member were a worker within the meaning of the WC Act, entitle the member to compensation under that Act. 207Under the WC Act, a worker will also be entitled to compensation for psychological illness in instances where the psychological illness is a disease of gradual onset. 208Section 4 of the WC Act provides that a 'personal injury' may include "a disease which is contracted by the worker in the course of employment and to which the employment was a contributing factor". Section 15 of the WC Act further provides that a notional date of injury (being the date of a worker's death or incapacity) will be applied in cases where a disease "is of such a nature as to be contracted by a gradual process". Section 15 of the WC Act is as follows: (1) If an injury is a disease which is of such a nature as to be contracted by a gradual process: (a) the injury shall, for the purposes of this Act, be deemed to have happened: (i) at the time of the worker's death or incapacity, or (ii) if death or incapacity has not resulted from the injury-at the time the worker makes a claim for compensation with respect to the injury, and (b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due. (2) Any employers who, during the 12 months preceding a worker's death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission. 209In Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; [1964] HCA 34 ("Semlitch"), the High Court (per Kitto and Windeyer JJ) held that mental illness can be a 'disease' within the definition of 'injury' in the WC Act. In so holding, their Honours adopted the reasoning of the Court in R v Kemp [1957] 1 QB 399; [1956] 3 All ER 249; (1956) 40 Cr App Rep 121, in which Devlin J held (albeit in the context of a case involving a man attempting to escape liability for the assault of his wife due to a "disease of the mind") that there are diseases functional in origin where it is not possible to point to any physical cause, but simply to say that there has been a derangement of the functioning of the mind. 210In Semlitch, Kitto J (at 632), stated as follows: ... I find myself, with respect, unable to concur in either of the grounds taken by Else-Mitchell J. The first is based upon an assumption that the Legislature in enacting the relevant words, as it did by the amending Act of 1960, was mainly concerned to displace the decision of the Court in Darling Island Stevedoring and Lighterage Company Limited v. Hussey [1959] HCA 55; (1959) 102 CLR 482 ; and the conclusion is drawn that the word "disease" is used as meaning only such illnesses or disorders as possess the characteristics which were material to the decision in Hussey's Case [1959] HCA 55; [1959] HCA 55; (1959) 102 CLR 482 . No doubt the assumption is correct; but for the next step there is, I think, no warrant. In its ordinary meaning "disease" is a word of very wide import, comprehending any form of illness; and there is no reason that I can see for reading it in the present context as not extending to mental illness. ... 211Further, Windeyer J (at 365), found: ... The dualism of Cartesian philosophy, its inveterate distinction between mind and matter, continues to influence our ideas of illness and disease. The evidence in this case shows that the respondent, who was the applicant before the Workers' Compensation Commission (and whom I shall call the applicant), was suffering from a disorder of the mind which the medical witnesses considered to be functional not organic. Let it be assumed that, in the present state of our knowledge of these things, this disorder is to be considered as purely psychogenic, it is none the less properly called a disease within the meaning of that word in the New South Wales Workers' Compensation Act. If we knew more of the inter-relation of body and of mind it may be that the irrational beliefs and irregular behaviour which are the marks of madness or near madness would in every case be seen as associated with some derangement of the mechanisms or the metabolism of the body - I have said associated with, rather than caused by, because the relationship may not be that of cause and effect. However that may be, there is nothing unusual in describing the applicant's affliction as a disease. That that use of the word is not novel ... 212Windeyer J went on to note that the degree of abnormality of feelings or behaviour required to be demonstrative of the existence of a mental illness is a question of fact. Further, his Honour noted that, while the law, when fixing responsibilities upon persons (in that case, holding the employer liable to pay workers compensation), often seeks to identify the "effective cause" or "proximate cause" of an event, all the WC Act requires (in terms of the inclusion of diseases of gradual onset in the s 4 definition of 'personal injury') is that the disease was contracted by the employee in the course of his employment (s 4(b)(i)), and that the employment was a substantial contributing factor to the disease (s 9A). (See also, Amalgamated Wireless (A/sia) Ltd v Philpott (1961) 110 CLR 617; [1961] HCA 31 per Dixon C.J., Kitto, Taylor and Windeyer JJ). 213A further consideration as to the meaning of the expression is the breadth of the meaning of the word 'infirmity'; the ordinary meaning of which will include diseases. The Oxford English Dictionary, for example, defines 'infirmity' as, amongst other things, "[a] special form or variety of bodily (or mental) weakness; an illness, disease". Hence, the ordinary grammatical meaning of 'infirmity of mind' would include a disease of the mind. 214It follows, then, that a member of the police force who suffers a psychological illness in the form of a disease of gradual onset must be taken to be, as a matter of construction, hurt on duty for the purpose of the PRS Act. 215In our view, this conclusion must bear upon the construction of s 10B(2)(a). The notice requirement of that sub-section should not be construed in a manner which will deprive the PRS Act from having its full and effective operation. In other words, the requirement for notice shall not be read in a manner inconsistent with the intention of the hurt on duty provisions of that legislation, namely, that additional benefits shall be payable to members with psychological infirmities - and, in particular, psychological infirmities which, of their nature, are diseases of gradual onset - contracted as a result of their work. 216Support for this approach to construction can be found in many authorities on statutory interpretation. 217In Vickers, Sons & Maxim Ltd v Evans [1910] AC 444, the House of Lords, per Lord Loreburn L.C. (at 445), held that the Court is not entitled to read words into a statute unless clear reason for it is to be found "within the four corners of the Act itself." 218In a similar vein, in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; 35 ALR 151; [1981] HCA 26, Mason and Wilson JJ held that the Court may prefer a construction alternative to that which logically follows from a contextual analysis of the language of a provision, only in circumstances where the alternative construction is reasonably open and if it operates to produce results which more closely conform to the legislative intent discernable from other provisions of the statute. The relevant passage from the case, per Mason and Wilson JJ, (at 169), is as follows: ... Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute. 219In Jones v Wrotham Park Settled Estates [1980] AC 74, it was held, by Lord Diplock (at 105), that the Court should not be reluctant to adopt a purposive construction where to apply the literal meaning of the language used in a provision would lead to results which would clearly defeat the purposes of the Act. 220The conclusion reached by Staff J that the notice requirements under s 10B(2)(a) require that a known event must be notified in order to satisfy the provision, cannot, in our view, sit comfortably with a legislative intention to provide full scope to the intention of the legislation to provide benefits to those suffering an infirmity of mind, including onset of disease, as a result of being hurt at work. This is because diseases of gradual onset, including psychological illnesses, which exist in the absence of a precisely identifiable or known cause or origin, are no less compensable under the WC Act than injuries of a frank nature. Given that the PRS Act expressly provides that the hurt on duty benefit will be payable to a member suffering a psychological infirmity, which infirmity would entitle the member, were the member a worker within the meaning of the WC Act, to compensation under that Act, the injurious event requirement must be amenable to cases involving diseases of gradual onset. To find otherwise would be to defeat the plain intention of the PRS Act with respect to such injuries at work. 221This inevitably gives rise to a consideration of s 10B(3). 222Taken literally, the requirement of the Commissioner of Police to decide, under s 10B(3), "the date or dates on which the member or former member was hurt on duty", would appear to align with a construal of the 'injurious event' referred to by Staff J as meaning a precisely identifiable incident. However, construing the 'injurious event' requirement as such would, in cases of psychological illnesses of gradual onset, lead to a result which again would clearly defeat the purpose of the PRS Act, which purpose, as noted, includes the entitlement of former members to the additional hurt on duty allowance for infirmities of mind caused by being hurt on duty. 223In R v Young (1999) 46 NSWLR 681, Spigelman CJ (as he then was) held that the Court may give the words of a provision an "ambulatory" operation if, in doing so, the Court is construing the words actually used by the legislature to carry into effect the legislative intention. The relevant passage from his Honour's judgment, at [15], is as follows: Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed: McAlister v The Queen (1990) 169 CLR 324 at 330; R v Di Maria (1996) 67 SASR 466 at 472-474. If a court can construe the words actually used by the parliament to carry into effect the parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the court confines itself to the range of possible meanings or of operation of the text - using consequences to determine which meaning should be selected - then the process remains one of construction. 224In that vein, the requirement of the Commissioner of Police under s 10B(3) to decide the date on which a member was hurt on duty, must, in such circumstances, be read so as to give full effect to the legislative intention of the hurt on duty scheme under the PRS Act. Section 10B(3) must be construed, in cases involving diseases of gradual onset, as meaning a requirement of the Commissioner to decide the date notionally, rather than exactly, on which the member was hurt on duty. 225In view of these conclusions, we consider that the proper construction of s 10B(2)(a) is that, where the infirmity of mind is a psychological illness which is a disease of gradual onset, the injurious event requirement should be construed as concomitant with the requirement to notify symptomatology, provided that the symptomatology is sufficient to demonstrate the onset of the disease (the onset of the disease being the 'injury', causative of the ultimate infirmity (the disease itself), referred to in s 10B(2)(a)). In other words, the injurious event, in such cases, which occurs not in a frank incident but gradually over time, is notified under the sub-section by the reporting of a sufficient symptomatology. Conclusion as to Construction 226Upon the proper construction of s 10B(2)(a), notification requires, in the case of an infirmity of body or mind caused by an injury received in a frank incident (as opposed to a disease of gradual onset), notification of an event, an injurious consequence and a connection between the two. In the case of an infirmity of body or mind caused by the onset of disease, notification of injury shall be effective, as described in the above paragraph of the judgment, where the former member notifies the Commissioner of Police of symptomatology sufficient to demonstrate the onset of the disease. 227To the extent that the judgment in Hazlewood found otherwise, then it should not be followed. 228In his draft judgment in this matter, the President, has expressed the view that there is no requirement under s 10B(2)(a) for the circumstances in which an injury occurred to have been notified. It appears that his Honour, in this respect, is inclined to accept the appellant's contention that a report of symptomatology amounts to notification of injury under s 10B(2)(a). Insofar as cases of involving diseases of gradual onset are concerned, we agree with his Honour. However, to the extent that his Honour is of the view that notification of an event is never required under s 10B(2)(a), notwithstanding the fact that, in the vast majority of cases, it will be known or knowable, then, with respect, we disagree. Resolution of the Present Case 229Whether the extended construction of s 10B(2)(a) is of assistance to the appellant in the present case depends upon whether the claimed infirmity of chronic post traumatic stress disorder can be described as a disease of gradual onset. The extract from the DSM-IV-TR on the diagnostic features of post traumatic stress disorder, provided by the appellant, notes that: [t]he essential feature of Posttraumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury... 230The above description, which represents post traumatic stress disorder as being caused by the development of symptoms following a traumatic event, is consistent with the approach taken by Staff J which construed the 'injury' to be notified under s 10B(2)(a) as an event or circumstance, symptoms or condition, and a connection between the two. As such, the above extract tends to suggest that the disorder is one which develops from an incident of a frank nature. 231However, the extract goes on to note that "[s]ymptoms usually begin within the first 3 months after the trauma, although there may be a delay of months, or even years, before symptoms appear." In circumstances where symptoms do not appear for months or years after the traumatic event, it will not be possible for a member to report an injurious event (that is, an event which has had the effect of causing symptoms); in such circumstances it will not be knowable, until the symptoms appear, that an event has been injurious. In cases where the injurious event is not known until much later (perhaps until after a member's retirement), it may be appropriate to construe the disorder as a disease of gradual onset for the purpose of s 10B(2)(a). In such circumstances, notification of injury will be taken as having been given if a member reported symptomatology sufficient to demonstrate the onset of any such disease. 232On the basis of the available evidence and argument, however, we do not think it is possible to conclude whether post traumatic stress disorder is properly construed as a disease of gradual onset (or otherwise consists of progressive psychological symptoms arising from an event). Furthermore, it is unnecessary to finally resolve that issue in this case. 233True it is that, on the face of the available evidence as to what symptomatology was notified by the appellant to the Commissioner of Police in the present case, there may be some doubt cast as to whether notification of particular symptoms was sufficient to indicate the onset of the claimed infirmity of chronic post traumatic stress disorder (if properly described as a disease). However, once the STC certified the infirmity of "major depressive episode" on the basis of the appellant's notification of the condition of depression, then, in our view, the conclusion that there was notice of injury by the appellant is, as the President has found, inescapable in the circumstances of this case. Whether or not that notice can be regarded as being notice of an injury capable of causing the infirmity of post traumatic stress disorder is, as we have discussed above, open to debate. 234We agree with the view of the President that the Full Bench is not in a position, at this stage of proceedings, to determine whether what was notified by the appellant may be regarded as causative of chronic post traumatic stress disorder. That, in his view, is a complex question which needs to be determined on the basis of further evidence (having regard to the views of the various doctors and the relevance and applicability of the DSM-IV). However, given the reference of the matter under s 193 of the IR Act, it would appear to require that this Full Bench resolve this question. We would order that the matter be delegated to a Member of the Full Bench to take that evidence in advance of further hearing before the Full Bench which will then determine the matter in accordance with this decision. ********** Amendments 23 July 2012 - Addition of junior counsel for the appellant - Mr M Hammond Amended paragraphs: Coversheet 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. Decision last updated: 23 July 2012