Dive v Commissioner of Police [1997] NSWCC 51; (1997) 15 NSWCCR 366 (5 November 1997)

[1997] NSWCC 51; (1997) 15 NSWCCR 366

DIVE v. COMMISSIONER OF POLICE

Compensation Court of New South Wales: Neilson J

5 November 1997

Police - Appeal from Commissioner's decision - Court's jurisdiction limited to injuries received after 21 November 1979 - Police Regulation (Superannuation) Act 1906, section 21(1)

Police - Appeal from Commissioner's decision - Court bound by determination of the Police Superannuation Advisory Committee as to appellant's incapacity and its cause - Police Regulation (Superannuation) Act 1906, section 10B(1)

Police - Appeal from Commissioner's decision - Hurt on duty - May include aggravation, acceleration or deterioration of pre-existing post-traumatic stress disorder - May include depressive illness caused by promotion procedures - Police Regulation (Superannuation) Act 1906, section 1(2)

H.J. Halligan, for the appellant

T.J. Willis, for the respondent

Ex tempore

NEILSON J: This is an appeal under the Police Regulation (Superannuation) Act 1906. The appellant, Mr Lindsay Royle Dive, is a former member of the New South Wales Police Service. He joined the New South Wales Police Service on 12 June 1972 and thereby became a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906.

On 30 April 1996, the Police Superannuation Advisory Committee determined that Mr Dive was incapable of discharging the duties of his office by the specified infirmity of mind of "major depressive illness and post-traumatic stress disorder, both of mild to moderate severity". On 8 May 1996, the Commissioner of Police determined that that infirmity of mind was not related to Mr Dive's duties as a police constable. Accordingly, the appellant brings an appeal to this Court.

He has obviously been discharged from the Police Service and is in receipt of an ordinary superannuation pension. A determination favourable to him by this Court will result in an increased superannuation pension being paid to him.

Inter alia, the respondent has pleaded that this Court has no jurisdiction to make a determination favourable to the worker, because of at least one of the two medical conditions specified by PSAC resulted from the worker's employment prior to 13 November 1979 and that this Court only has jurisdiction to determine the compensability of injuries occurring after that date.

That statement of law is, in my view, correct. In Staples v. Commissioner of Police [1990] NSWCC 5; (1990) 6 NSWCCR 33, my colleague, Judge Burke, determined that this Court cannot take cognisance of injury received prior to 21 November 1979. His Honour held that the Government and Related Employees Appeals Tribunal retains jurisdiction in respect of injuries occurring before that date.

I should point out that there are two dates referred to by his Honour in his judgment at 44-45 of the report. They are 13 November 1979 and 21 November 1979. The question as to the correct date was raised by his Honour Judge Manser in Conroy v. Commissioner of Police, Compensation Court, No. 30259/89, 15 November 1991, unreported at 31. The correct date is, in my view, 21 November 1979.

The amending Act to the Police Regulation (Superannuation) Act 1906 was Act No. 133 of 1979. That Act received the Royal Assent on 13 November 1979 but did not come into force until 21 November 1979. Accordingly, the appropriate date is 21 November 1979 and not 13 November 1979.

I should also say that in Conroy's case, his Honour Judge Manser acceded to that finding of his Honour Judge Burke that this Court cannot take cognisance of injuries occurring before 21 November 1979. As a matter of comity, I would follow those two decisions, but in any event, I agree with the decision of Judge Burke provided that one bears in mind that the date 21 November 1979 is correct.

The other matter which has to be borne in mind is that the parties and this Court are bound by the determination of the Police Superannuation Advisory Committee both as to the existence of the incapacity for work and as to the cause of that incapacity for work. That is, this Court is bound by the determination that the infirmity of mind which renders Mr Dive unfit for the duties of his office is a "major depressive illness and post-traumatic stress disorder, both of mild to moderate severity". That must be borne in mind, because in this case, as in many others, the existence of the condition has been disputed. For example, it is clear from all of the medical evidence before me that a Dr White qualified either on behalf of PSAC or by the Commissioner, said that the appellant's condition did not exist or was not genuine.

Equally, Dr Strum who gave evidence on behalf of the respondent yesterday, did not believe the applicant was suffering from a post-traumatic stress disorder. The fact that this Court and the parties are bound by the determination of PSAC was held by his Honour Judge Egan in Carroll v. Commissioner of Police, Compensation Court, No. 4089/89, 6 December 1990, unreported and by Judge Manser in McLellan v. Commissioner of Police, Compensation Court, No. 7487/90, 6 July 1993, unreported but more recently and more authoritatively by the Court of Appeal in Saad v. Commissioner of Police (1995) 12 NSWCCR 70 at 75F. The leading judgment in that case was delivered by Rolfe A-JA and was concurred in the decision of Kirby A-CJ and by Handley JA. At 75.8, Mr Justice Rolfe said:

"Her Honour [Truss, J] was bound to accept, as she did, that the appellant was suffering from the infirmity."

Likewise, I am bound to accept that Mr Dive is suffering from the infirmity of post-traumatic stress disorder and of major depressive illness.

On all the medical evidence, there is no dispute that the post-traumatic stress disorder was at least initiated by the appellant's involvement in the Granville train disaster. That occurred on 18 January 1977. The appellant was then working at the Mona Vale Police Station. However, he attended at the scene of the disaster with four other police attached to Mona Vale, Collaroy and Manly. He worked in the morgue tent, dealing with the bodies of deceased persons in order to try to establish their identity. The appellant worked in the morgue tent from 5.30 am to about 6.30 pm, a period of some 13 hours.

After that day, the appellant continued his work at Mona Vale. However, on that very night he was upset by a nightmare concerning deceased bodies. The nightmare has always been the same. The nightmare is of a person with his head to the left and feet to the right, which comes alive in Mr Dive's dream. The appellant has told me that those dreams have continued intermittently since 18 January 1977 to date. That is the primary symptom on which the diagnosis of post-traumatic stress disorder has been made.

Because of the date of the Granville train disaster, the respondent's plea to jurisdiction can be seen to be relevant. The respondent's case is that the post-traumatic stress disorder was caused solely by the Granville train disaster on 18 January 1977 and that therefore this Court has no power to determine that the post-traumatic stress disorder was the result of the appellant's having been hurt on duty.

The applicant's case is that not only that event but subsequent events involving deceased persons are cumulatively the cause of the post-traumatic stress disorder. Whilst the plea of the respondent to jurisdiction might seem to be otiose as there is no suggestion of any competing trauma which caused the post-traumatic stress disorder, it should be remembered that under section 10 of the Police Regulation (Superannuation) Act 1906, as it was in force before 21 November 1977, the disability of the police constable must be caused "by wound or injury received in the actual execution of the duty of his office".

The question, of course, would be whether injury should bear the meaning it does in the Workers Compensation Act, meaning injury to both body and mind or whether the word "injury" should be construed ejusdem generis with "wound", such that it requires some external impact upon the body. That, of course, I do not have to determine.

The respondent's submission that the post-traumatic stress disorder was caused by the Granville train disaster solely is based on the pattern of dreams to which Mr Dive deposed. Mr Dive has had numerous encounters with corpses since the Granville train disaster. In fact, he had encounters with corpses prior to that time, but it is common ground between the parties that those occurrences before 18 January 1977 were not the cause of the post-traumatic stress disorder. The pattern of dreams is, as I have already said, of the same dream. After dealing with a corpse, the appellant notices an increase in the frequency and/or severity of the dreams or, as the appellant himself said, of a "flaring up" of the dreams, but that flaring up subsides after a period of approximately two weeks after dealing with each corpse.

Furthermore, in that period of two weeks with increased dreaming, the corpse in the appellant's dream does not take the form of the corpse with which he has most recently dealt. Therefore the respondent argues that each subsequent dealing with a corpse represents only a temporary exacerbation or aggravation of the underlying post-traumatic stress disorder and that the ongoing condition relates solely to the Granville train disaster.

The essence of the appellant's case is argued by Dr Christopher Canaris, who gave evidence before me yesterday. In his report of 14 October 1997, Dr Canaris said this:

"From the history he gives, he clearly states that his post-traumatic symptoms began immediately after his Granville experience and persisted ever since his police career. His post-traumatic stress disorder is, therefore, attributable to his involvement in the handling of multiple mutilated corpses at Granville. There is no evidence of any other events contributing to his post-traumatic stress disorder apart from further exposure to corpses in the course of his police career. This continued exposure consistently rekindled his symptoms and effectively perpetuated his disorder."

In his oral evidence, Dr Canaris said that if the appellant had not been exposed after the train disaster to dealing with other corpses, his symptoms of his post-traumatic stress disorder would have lessened with the passage of time and may well have gone away. There was much logic in that statement by Dr Canaris.

The constant dealing with corpses after the Granville train disaster would keep that event in the appellant's mind. Dealing with corpses subsequently could be seen as effectively maintaining the condition to the extent that it became chronic, as I understand the thrust of Dr Canaris' evidence. Dr Strum argued the respondent's position and said that if the effect of dealing with subsequent corpses was cumulative, as Dr Canaris said it would be, that he would expect more symptoms or increasing symptoms. There is also much to be said for the logic of that proposition. However, in this case there is evidence, which I have no hesitation in accepting and which persuades me, that the effect of dealing with corpses has been cumulative.

I do not have time, with eight other matters in the list for hearing today, to go into great detail into all the events to which Mr Dive has deposed. However, one of them was an event which the appellant assigned to 1984. That event was the death of a young two-year old boy by drowning. The appellant had been called out in the police vessel in which he served in the Broken Bay Water Police. A child had fallen from a yacht. The appellant came upon a second yacht in Careel Bay at Pittwater where the body of the child was laying. The body appeared to be dead. The appellant proceeded to give external heart massage and his companion, Constable Comber, performed mouth to mouth resuscitation. They maintained their efforts for some 45 minutes until the second yacht on which the boy's body was could be tied to a wharf and handed into the care of the Ambulance Service of New South Wales. During the period that the appellant was providing external heart massage, the boy's father was present constantly asking whether his child would be all right. It must be remembered the appellant would have had to deal with the father when he himself believed that the boy was dead. After the boy's body had been taken away by ambulance, it was necessary for the appellant and Constable Comber to take statements. One of those statements was to be taken from the boy's father and another relative. The appellant took the statement from the boy's father and was halfway through that statement when he felt he was unable to continue. He asked Constable Comber to take over, went outside into the corridor and wept for some 10 minutes.

On a subsequent day or days he was able to continue the investigation. However, this episode of weeping had not occurred to the appellant before and the appellant felt very upset with himself for breaking down in that fashion. Medical evidence makes it clear that the denial mechanism, or as the applicant had it, adopting the "macho" approach, is itself part of the post-traumatic stress disorder, or rather aggravates the post-traumatic stress disorder because it does not allow the sufferer to cope with the condition itself.

However, the significance of this death is really given in the evidence of Sergeant Comber elicited in cross-examination of him by learned counsel for the Commissioner of Police. One of the early questions put to Constable Comber by counsel for the Commissioner was whether the appellant had ever attempted to avoid contact with deceased bodies to his experience. Constable Comber replied that the appellant did. He instanced the event of the deceased young boy whom Constable Comber was able to identify as Diego Fox. Constable Comber said after that little boy's death, the appellant would avoid dealing with bodies if possible. If there were three policemen on a police vessel, the appellant himself would delegate to the other two the duties of dealing with the body and would himself stay away from the corpse. That, the specialist evidence shows, is an avoidance mechanism typical of those suffering from post-traumatic stress disorder.

It is to be remembered that Constable Comber worked with the appellant from March 1983 to August 1986 at the Broken Bay Water Police. Clearly, he had worked with the appellant prior to the death of Diego Fox and subsequent to it, and clearly in his view since that death, the appellant had avoided contact, if possible, with corpses. That is a new symptom of the post-traumatic stress disorder, as is the appellant's breaking down when interviewing the father of Diego Fox.

I am persuaded, especially on that evidence, that the effect of the appellant's dealing with bodies has been cumulative or has perpetuated the underlying condition. In other words, one can look upon, to use the terminology of the Workers Compensation Act, that there has been an aggravation or deterioration or acceleration of the inability to heal from the post-traumatic stress disorder by the appellant's dealing with bodies after 21 November 1979.

In my view, there has been an aggravation, acceleration or deterioration of the pre-existing post-traumatic stress disorder and, as the authorities make it clear, that brings that condition within this Court's jurisdiction. For example, see Conroy's case and Wiggins v. Commissioner of Police, Compensation Court, No. 2356/90, Johns J, 22 February 1994, unreported and even Staples' case where his Honour Judge Burke looked through the evidence to see whether there had been any aggravation, acceleration, exacerbation etc. of the alcoholism of that appellant, and was unable to find any in the evidence. However, in this case, I am persuaded that there was such an aggravation, acceleration, exacerbation or deterioration of the underlying condition caused by the Granville train disaster, and in particular I am persuaded by the evidence of Dr Canaris that it has in fact perpetuated or made the condition chronic.

In my view, the plea to jurisdiction fails on the facts of this case. The post-traumatic stress disorder can be within the disease provisions of the Workers Compensation Act, namely section 16, as a pre-existing non-compensable condition, but aggravated etc. by the nature of his work as a police officer in the New South Wales Water Police.

The appellant told me that he left the Water Police in order to try to obtain a promotion. He said one of the reasons that he gave for seeking the promotion was to enable him to take effectively a desk job, supervisor's job, back-room job where he did not have to deal with dead bodies all the time. I accept that that was a genuine feeling at the time.

The appellant at one stage was advised to apply for a sergeant's position while he was at the Water Police prior to transferring to general duties at Mona Vale. The applicant said that he did not want a sergeant's job at the Water Police, but he was told by his supervisor that if he did not apply, it would show that he was not interested in obtaining a promotion. The appellant said that he knew he would not get the job as a sergeant in the Water Police, because it had been a hand-picked job for a Constable Gary Figgis. However, he did apply and was unsuccessful.

The fact is, the appellant wanted a sergeant's job, but he did not want the job as a sergeant with the Water Police, presumably because that was still a "hands on" job dealing with corpses. The appellant was not challenged about that and I accept that the appellant did seek a transfer to general duties in order to seek a promotion to sergeant for, inter alia, the reason of avoiding contact with dead bodies, which was a fairly commonplace experience for the Water Police at Broken Bay.

The appellant went to Mona Vale in 1991 to begin general duties. The appellant believed that if he did general duties he would be more likely to get a promotion to sergeant than otherwise would be the case. After a short period of time, he found that his normal duties at Mona Vale were regularly acting as a shift supervisor, and he found that he was able to cope quite well with that work. Such is clear from Exhibit 2, a statement of Mr Dive tendered in the respondent's case.

The appellant, in that statement, continued:

"As the thought of promotion was still a priority and with the guidance of the patrol commander at Mona Vale, Chief Inspector Roger Hardy, I made application to attend the Goulburn Academy to undergo the supervisor's course. This was granted and I attended the course. The culmination of the course was to submit an assignment. I found that completing this assignment with very little assistance was very worrying over a long period of time, however a pass was given to me."

In January 1994, the appellant returned to Mona Vale Police Station after having been on annual leave. He discovered that there were three general duties sergeant's positions advertised in the Warringah district. They had been advertised at a time prior to the appellant's returning from annual leave and he was left with little time to make his application for those jobs. However, he did apply and was granted an interview, and he thought he went quite well at the interview, although he was obviously nervous.

The next set of events to occur is well set out by Mr Dive in the statement of 7 June 1994, which is Exhibit 2. It continues thus:

"On 2 April 1994, I commenced two weeks annual leave, and at that stage had not been informed whether I had been successful at my interview. I completed my leave and my first rostered shift back at Mona Vale was 11.00 pm on Monday, 18 April. I attended the police station at about 10.20 pm to begin my shift as a shift supervisor and found that I was relieving Senior Constable Wayne Hill. At the completion of the formalities of relieving Senior Constable Hill, I said to him, `Have you heard anything from town?' he said, `I have been nominated for the job at Manly. Clyde Sylvester has been nominated for one job here and some dickhead from Dee Why has been nominated for the other job here. You've no doubt got a Dear John letter in your pigeonhole'. I was practically dumbfounded. I congratulated him and he left the station. I then went to my pigeonhole and read the selection committee report. I was shocked. I could not believe that I was informed in such a manner. I could not talk to anyone and I left the station in a police car and went for a drive. My heart was beating fast and I was hyperventilating. I was driving the car fast. I was furious. It was then that I realised that I must return the car to the station before I crashed and go home, as I was suffering from a feeling that I had never experienced before. I did not know what was wrong with me. I did not feel normal."

On the following day, 19 April 1994, the appellant attended upon his general practitioner, Dr E.W. Taylor. He, the appellant, complained of insomnia and constricting chest pain not related to exertion that the appellant said had been coming on over some time. According to Dr Taylor, the following also occurred:

"He complained that he could not cope with work, that he could see no point in his job as promotion had been refused. He had been given extra work to do with computers which he resented and he felt he could not get a sympathetic hearing from his superiors. He was distressed by the thoughts of several traumatic experiences in the Police Force, dating back to the Granville train accident and was resentful of lack of counselling."

It is clear that Dr Taylor had been the appellant's treating general practitioner for many years. However, that was the first occasion on which he spoke of any stress-related disorder.

On or about 4 May 1994, the appellant saw Dr G. Spragg, a consultant psychiatrist. The appellant's presenting symptom was chest pain. The appellant described a feeling of a tight bandage around the chest and on extremes of inhaling and exhaling, an ache and a feeling of restriction which was located in the retrosternal region radiating laterally for a short distance to both sides. The appellant gave the doctor a history of those symptoms beginning about two months previously, but becoming more frequent "over the past three weeks", which of course would take one back to about 18 April 1994.

The appellant also gave the doctor a history that in the past three weeks, again probably relating back to 18 April 1994, he had been sleeping poorly. Unfortunately, Dr Spragg was unable to treat the appellant. He was then transferred to the care of Dr Peter Anderson, a consultant psychiatrist. Dr Anderson records that when the appellant presented to him on 26 May 1995 that the appellant was tearful, agitated and depressed, was self-denigratory and was angry with the Police Force.

The symptom complex which the appellant had when he saw Anderson was completely inconsistent with the appellant's being able to perform normal police work up until 18 April 1994. Clearly, if he was tearful, agitated and depressed, self-denigratory and angry with the Police Force, he could not have worked as a police constable for years as he did.

In my view, the symptoms of which the appellant was complaining that were not solely referable to the post-traumatic stress disorder were precipitated by the events of 18 April 1994. My impression of the evidence is best summed up in the response of Dr Canaris to my question as to whether the appellant had symptoms of a major depressive illness which forms part of the certificate of PSAC prior to 18 April 1994. In my view, the major depressive illness was caused by the appellant's response to failure to obtain promotion which was communicated to him on 18 April 1994.

The respondent contends that does not constitute compensable injury. The appellant's contention, of course, is otherwise. There were some further factors to be taken into account. I accept that the appellant was seeking promotion in order to avoid dealing with deceased bodies--in order, effectively, to take himself out of front-line policing and to do essentially a desk job. He had done that which was necessary in order to obtain that promotion. He had varied his duties by transferring from the Water Police to general duties. He had acted as shift supervisor for a substantial period of time at Mona Vale. That is, he was effectively an acting sergeant. He completed the shift supervisor's course. Unfortunately, he was not promoted and his expectations were dashed or blasted.

The appellant saw himself, no doubt, as having to return to general duty or front line policing work where he might again have to deal regularly with bodies.

I accept that seeking the promotion was part of the avoidance mechanism which is part and parcel of the post-traumatic stress disorder. His avoidance mechanism was stymied by his failure to obtain the promotion.

Equally, I accept the evidence of Dr Canaris in particular that the post-traumatic stress disorder would have rendered the appellant vulnerable to emotional trauma when his expectation of promotion was not realised. That is, that the appellant's pre-existing psychiatric condition of the post-traumatic stress disorder rendered him susceptible to reacting psychologically adversely to unwelcome news. In my view, this is different to a person just becoming angry and upset because he did not get the job which he wanted.

If the applicant behaved unreasonably or illogically, then that can be seen to be part and parcel of the conditions set up by the post-traumatic stress disorder.

In any event, on my view of the law, those considerations may be irrelevant. Clearly the applicant was encouraged to apply for promotion. One can accept that in a structured hierarchical force such as the Police Service that it is necessary that there be persons such as sergeants to effectively run the force. It is traditional wisdom that military services are often run by the NCOs whether it was a Roman legion or a British regiment. Equally, one can say that the sergeants may really be the backbone of the New South Wales Police Service. One needs NCOs to make sure that the junior and inexperienced learn their calling properly and do their job properly.

It is in the interest of the Police Service for policemen to apply for promotion. However, in this case there is direct evidence that the appellant was encouraged to obtain a promotion. Firstly, there was the piece of evidence that I have already mentioned where, when the appellant was in the Water Police he was encouraged to apply for the sergeant's job then, lest it be seen that he was not interested in promotion. Furthermore, there are statements tendered in the respondent's case from Chief Inspector Hardy, patrol commander at Mona Vale. In the statement of 15 July 1994, Chief Inspector Hardy said this:

"Senior Constable Dive has over 20 years service with the Police Service. Upon his transfer to Mona Vale he was encouraged to pursue promotion and undertake the supervisor course, which he completed. He was also given the responsibility on numerous occasions to perform supervisory duties. I consider that he had the experience and ability to perform those duties. It was also pointed out to him that performing supervisory duties would enhance his promotional prospects. This year he applied for positional promotion and I supported his application. He was unsuccessful and did not appeal any of the positions. I have no reason to doubt that he was informed about not gaining a sergeant's position in the manner he describes. I would describe Senior Constable Dive as an intelligent, hard working, capable police officer. I have no complaints as to the manner in which he carried out his duties."

Clearly the appellant was encouraged, in particular by Chief Inspector Hardy, to apply for promotion. Applying for promotion was an incident of his employment. Receiving the communication of his lack of promotion was equally an incident of his employment. Here the major depressive illness was caused by a blow to Mr Dive's psyche, just as an injury might be caused by a blow to the face or a blow to the back. It is clear that the appellant rapidly decompensated on 18 April 1994. In fact, the appellant himself referred to the event to one of the psychiatrists as when he "spat the dummy". However, that major decompensation has led to a major depressive illness.

In my view, the event of 18 April 1994 constitutes injury arising in the course of the appellant's employment with the respondent. One may go no further than the judgment of Dixon J, as he then was, in Humphrey Earl Ltd v. Speechley [1951] HCA 75; (1951) 84 CLR 126 at 133. There occurs the classic statement of the course of the employment:

"The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which was reasonably required, expected or authorised to do in order to carry out his duties."

In my view, there was no interruption here to the course of Mr Dive's employment. He had already taken over the shift and had relieved Senior Constable Wayne Hill on 18 April 1994. His comment about any news from town did not break the course of his employment. The intelligence which was imparted to him by Senior Constable Hill was a blow to his psyche which constituted injury in the course of his employment.

Even if I be wrong in that, clearly applying for the promotion was something which he was both expected and authorised to do in the performance of his duty in the Police Service. If he were injured whilst going to or at an interview, that would be compensable. Receiving the information about the event was also in the course of his employment or an incident of it. It was the finding out about what happened on his application for promotion which led to the major depressive illness.

I accept that that was the cause of his illness and that it constituted an injury arising in the course of his employment. There are, of course, analogies. The first analogy is the case of Thazin-aye v. WorkCover Authority (NSW) (1995) 12 NSWCCR 340. In that case the worker had suffered frustration and emotional upset because she was not allowed to work in the field in which she wished to work and for which she had been trained, and for which she had had a theoretical appointment in the New South Wales Public Service. The employer, the WorkCover Authority, refused to give the worker duties which she had a right to perform. It was held that she had not sustained injury, not because the circumstances were not compensable, but because she had only an emotional condition relating to her frustration and upset and not a physiological effect to satisfy the requirement of injury as required in Anderson Meat Packing Co Pty Ltd v. Giacomantonio [1973] 47 WCR (NSW) 3 and Austin v. Director General of Education (1994) 10 NSWCCR 373. This is not a case where there has been any submission that there was no physiological effect.

The question of what is required for physiological effect has been most recently discussed by his Honour Judge Burke in Bhatia v. SRA (NSW) [1997] NSWCC 25; (1997) 14 NSWCCR 568. That decision is one of a large number of useful contributions to the jurisprudence of workers compensation by Burke J. His Honour at 576-580 discusses the difference between physiological effect and physical effect. Clearly in this case, the major depressive illness does have a physiological effect. Mr Dive's body and mind do not function the way they used to and there has not been a mere emotional upset or angry response.

His Honour summed (at 579-580) up his view of the law in this manner:

"All the Act is concerned with is injury to a worker. A worker is what he is. He is both mind and matter which function as one integrated, symbiotic entity--as a single organism. Whether it is either or both of the perceived elements that is injured is really immaterial. The ultimate question is, has the worker received injury? Has the human organism which is the worker become dysfunctional? Any condition as debilitating and long lasting as the effects of these relevant incidents on Mr Bhatia could hardly be conceived as anything but injury.

In my view Mr Bhatia's response to the incidents and their sequelae has been and is psychopathological. He has sustained physiological injury and certainly not exhibited mere emotional impulse. Such results from the events now relied upon as giving rise to the condition and its consequence is total incapacity--and a need for substantial medical treatment."

Clearly here there has been a major depressive illness which precipitated incapacity for work as a police constable and that has been found to be permanent and has required extensive medical treatment. The psychiatrist called in the applicant's case and indeed the psychiatrist called in the respondent's case were not questioned to suggest that there had been no physiological effect. Here the problems that arise from Thazin-aye's case do not arise.

However, there are two other cases which indicate that the circumstances of failing to get a promotion can give rise to compensable injury. The first case that I have been able to find was not found by either counsel but in fact involves a policeman. The decision is Albrecht v. Commonwealth of Australia (1988) AWCCD |P73-961. That was a decision of the Administrative Appeals Tribunal sitting in Victoria. The worker in that case was a member of the Federal Police. He had died of a subarachnoid haemorrhage during sexual intercourse with his wife in bed at home. The Tribunal was satisfied on the evidence that the policeman's failure to obtain promotion caused him stress which led to occasional anger and frustration expressed in violence and irritability. However, the Tribunal was not persuaded that that stress, anger or frustration had aggravated the appellant's hypertension so that there could be seen to be some link between the failure to obtain the promotion and the subarachnoid haemorrhage from which he died. It was not suggested in that case that failure to get a promotion could not constitute injury arising in the course of the employment.

The other case to which I should make mention is the decision of the Supreme Court of South Australia in Workers Rehabilitation & Compensation Corporation v. Rubbert (1991) AWCCD |P74-253. In that case the worker was a nursing aide who suffered a stress related illness after being informed that she would be transferred to day shift on her return from holidays because of two complaints from patients. The worker was given counselling sessions and a change of roster as part of a disciplinary process because of the complaints that had been made. Nevertheless, the stress-related disorder was held to be compensable. One could argue, as the respondent did argue in this case, that by misconduct, the worker takes himself outside of the course of his employment. The disciplinary action of the employer could be seen as a direct consequence of the worker's misconduct and therefore itself not be in the course of his employment, and therefore a stress-related illness relating to the discipline would not be compensable. However, the Chief Justice of South Australia, Mr Justice King and their Honours Mr Justice Millhouse and Mr Justice Debell agreed that the worker was entitled to compensation. Mr Justice Debell said this:

"It strikes one as curious at least that an illness which is perhaps an unreasonable reaction to a proper disciplinary measure can entitle a worker to compensation. However, that is the inescapable consequence of the definition of `disease' contained in the Act and the other provisions to which the Chief Justice has referred in his judgment."

There is no suggestion here of any misconduct on Mr Dive's part. However, the analogies make it clear that a major depressive illness caused by the promotion procedures can constitute injury arising in the course of a worker's employment. That, in my view, is what has happened in this case.

Having made those findings, that is sufficient to dispose of this appeal. However, I should say this. The respondent's attitude to this case was no doubt based on a degree of cynicism. The appellant maintained that his condition arose because of the Granville train disaster which occurred on 18 January 1977. Nevertheless, he did not take any time off work thereafter for a period until 1994, never sought medical attention, never made any formal complaint to his employer. He then was unsuccessful in a promotion application and, to use the appellant's own words to a doctor "spat the dummy". He then has been unable to work and has been off work. One can see on those bare facts, or abbreviated facts that a degree of cynicism would be aroused. However, this is an unusual case in that there has been no challenge to Mr Dive's credit. Often cases of this nature are replete with references to alternative stress such as family upset, intense dislike of police work in any event or the policeman getting into trouble with his superiors or disciplinary proceedings been taken against him. There was no such contention in this case. There is no challenge to Mr Dive's evidence and I accept the thrust of it.

The case has other features which are probably extraneous in the long term, but they include what I can refer to as the "log of claims" approach of policemen to claims of this nature where everything that has ever occurred is put into an application, is said to be the cause of stress, such as a minor hand injury, a claim for a minor loss of hearing with some tinnitus, and the manner in which the appellant was informed about the failure of his promotion. The appellant made much of the fact that he was upset by the way in which he was told about the promotion. He maintained that he ought to have been phoned up at home by his superior at Mona Vale and told that he was unsuccessful rather than learning of it on the grapevine from Senior Constable Hill. However, it is clear that the appellant himself asked Senior Constable Hill what had happened rather than Senior Constable Hill merely volunteering what had happened. Equally, the letter was there from the respondent to inform the appellant what had happened. One could argue that if the appellant had been rung up at home when he was on annual leave to say that he had been unsuccessful in his promotion, he might argue that that upset him and ruined his holiday. The employer in such circumstances is often between Scylla and Charybdis. However, in my view that is a red herring in the grand scheme of the case, but it shows that often these cases are run as if they were a log of claims in the Industrial Court.

There was one other matter I should mention concerning the appellant's reaction to the loss of promotion and that is, evidence given by Dr Strum as set out in his report of 15 October 1997. Dr Strum said this in his report:

"I believe Mr Dive did develop a severe depressive illness after his failure to obtain promotion. I believe it was directly related to the promotion and not to preceding episodes in his life. I find myself in agreement with Chief Inspector Hardy who saw these other issues as `red herrings', although I have no doubt that Mr Dive believed them to be relevant. I believe Mr Dive's illness was genuine and I believe that it made him unfit to remain in the Police Service. I think that medical retirement was appropriate.

As far as the matter of `hurt on duty' was concerned, with present restrictions on failure to obtain promotion as a precipitant within the meaning of the Act, unfortunately, I think Mr Dive misses out. I think that this is a pity because I think he was genuinely caught at a time of change. He tried very hard to deal with that change in doing courses, transferring to another branch of the Police Service and doing whatever he could to obtain promotion. I think that when the promotion failed to come, it showed Mr Dive that his efforts had all been in vain and this I think, was something he could not endure. But for the technical loophole in the legislation, I would have thought that Mr Dive's inability to deal with the changing requirements of promotion would have been responsible for his illness and perhaps compensation would have been justified."

However, it became clear when Dr Strum was giving evidence that he believed that section 11A of the Workers Compensation Act 1987 applied to this case. However, that section was inserted by the WorkCover legislation in the Act 1995 and commenced on 20 December 1995. It does not apply to injuries received before that date pursuant to Schedule 6, Part 2, clause 7. Furthermore, section 11(A) has been amended subsequently by Act No. 120 of 1996, but that amendment is not relevant for current purposes.

Clearly Dr Strum, who did not accept that the applicant did have a post-traumatic stress disorder, accepted that the severe depressive illness resulted from the appellant's failure to obtain the promotion although he accepted it in a way different to the way that I have.

Equally, the blasting of the appellant's expectations may have had something to do with the change in that promotion system as argued by Dr Strum. Equally, he accepted the appellant as being genuine, as do I. Equally, he made the same finding that I have that the appellant's severe depressive illness resulted from his failure to obtain promotion. However, that in my view constitutes injury arising in the course of the employment.

I have enquired of the solicitors for each party whether further reasons for judgment are required and I am told that none are so required.

Accordingly, on appeal I set aside the decision of the Commissioner of Police made on 8 May 1996 and I replace that with the decision that the suffering by Senior Constable Dive of the infirmities of "major depressive illness and post-traumatic stress disorder, both of mild to moderate severity" were caused by the appellant's having been hurt on duty within the meaning of section 1(2) of the Police Regulation (Superannuation) Act 1906.

I order the respondent to pay the appellant's costs.

Whilst I have no power to certify qualifying fees, I recommend the appellant's costs include a qualifying fee for Dr Canaris.

Certify additional conference $200.

Orders accordingly

Solicitors for the applicant: Oates & Smith

Solicitor for the respondent: F. Hutchison