Dean v Commissioner of Police [1998] NSWCC 19; (1998) 16 NSWCCR 389 (3 June 1998)

[1998] NSWCC 19; (1998) 16 NSWCCR 389

DEAN v COMMISSIONER OF POLICE

Compensation Court of New South Wales: Maguire J

9 October 1996, 17, 18 and 19 March,

30 July, 15 September 1997 (H)

3 June 1998 (J)

Police - Appeal from Commissioner's decision - Decision that officer's death not caused by being hurt on duty - Court may determine the cause of death - Not necessary to establish immediate cause of death if employment a contributing factor to aggravation of a disease that was a remote cause - Police Regulation (Superannuation) Act 1906 (NSW), ss1(2), 10B, 12C and 21 - Workers Compensation Act 1987 (NSW), s4 "injury"

G.P. Edwards, for the applicant

L.P. McFee, for the respondent

Cur adv vult

1 MAGUIRE J: Leonard Dean was born in Goulburn on 15 October 1953. In July of 1974 he joined the New South Wales Police at the age of 20. In 1977 he met the applicant and on 25 August 1979 they were married. He was then serving in Sydney where he served at a number of stations until his transfer to the detectives office in Queanbeyan which took place on 15 August 1983. This transfer to Queanbeyan and to different duties brought about lifestyle changes which were described in evidence by Mrs Dean as follows:

... having in the previous four years of our marriage been used to a husband that worked his eight hours, caught a train and came home. Although we lived in the town of Queanbeyan, we only lived five minutes or less walking distance from the station. Suddenly he no longer was doing eight-hour shifts but often more like 12-hour shifts. No longer could we plan what we were going to do because the phone rang constantly at night calling him out to jobs etc., so our whole lifestyle changed radically.

2 In 1986 and 1987 Mr Dean's lifestyle deteriorated further. Again, I quote Mrs Dean:

Definitely by about '87 -- '86, '87, the hours increased dramatically, especially because Queanbeyan was rarely at full strength of detectives and they were required to do what work was required.

Q. Are you able to assist his Honour as to the number of hours your husband would have been working on an average during those years, 1983 to 1987. I am talking about overtime?

A. It's difficult to say average, because by the nature of the work it's not something you can say like you've got--you do three hours a week and things like that. It depends on what incidents happen as to whether there was overtime or not. In the eight years that he was alive that we lived in Queanbeyan, I am aware of the fact that he was involved in an investigation into at least 13 deaths. Now, every time there was a death whether it was a simple accident or whether it had more criminal intent, it all required immediate drop everything and act on, and you worked until the job was done.

[At pars3 - 56, his Honour considered the deceased's medical history and the impact of his police duties as a detective on his physical and mental health. His Honour continued:]

57 On 17 May 1991 Dean went on leave. On 23 May 1991 he was, according to Dr Carter, seen by Dr Carter. I will return to that matter later. It can only have been a social occasion. There is no suggestion in the evidence that Dr Carter was consulted professionally on that date by Dean. Dean had in fact not consulted Dr Carter since 29 May 1990, very nearly 12 months previously. Thereafter, he had transferred himself to the care of Dr Bills who practised in a separate medical practice elsewhere in Queanbeyan. Nevertheless, Dean and Dr Carter saw one another from time to time socially or when they chanced to meet at the hospital.

58 On Saturday 25 May 1991 Dean and Mrs Dean departed Queanbeyan for Perth. He was to play in the Golden Oldies Rugby Tournament there. On that Saturday night in Perth, Mrs Dean describes her husband having a coughing fit that lasted about two hours. This evidence is not challenged.

59 On Monday 27 May 1991 he played a full game of rugby. He was in an over-35-years team. Mrs Dean thought each half lasted maybe 20 minutes.

60 On Tuesday 28 May 1991 Dean and Mrs Dean went on a river cruise and had lunch at a winery. He consumed what I find to be a moderate amount of wine in the circumstances. I accept Mrs Dean's evidence as to the facts. From the wharf they walked about 1,500 metres back to their lodgings. He had another, but much shorter, coughing fit during this walk. They had an early night.

Death

61 On Wednesday 29 May 1991, Sergeant and Mrs Dean arose early, spent some time together in the spa, had breakfast, took a tram ride, purchased some lunch, which they ate in their room and departed for the football about 1.30 pm. During the afternoon Dean took the field for a match against a side from London. Within minutes of the start of the game Sergeant Dean collapsed. Twenty minutes after his arrival at Charles Gairdner Hospital he was pronounced dead. He had lived for 37 years.

Cause of death

62 On the following day Dr Peter Carter at Queanbeyan completed and signed a death certificate in the form appropriate to a death in New South Wales. He ascribed the death to: "Rupture of mitral valve". He stated the underlying cause to be "Mitral valve disease". He certified that he had last seen the deceased alive on 23 May 1991, that is one week previously. He also certified:

I was in medical attendance immediately before the abovenamed deceased's death.

63 There is no other evidence before me to suggest any medical attendance by Dr Carter upon Sergeant Dean later than 29 May 1990, that is, precisely 12 months prior to death. Dean had first consulted Dr Bills on 20 October 1990, the morning after the Police Ball. It was Dr Bills who arranged his admission to hospital. Dr Coles reported once to Dr Carter immediately after that admission, forwarding a copy of his report to Dr Bills. Thereafter Dr Coles and Dr French reported exclusively to Dr Bills.

64 Dr Carter gave evidence at the trial. When asked about the frequency of his seeing Sergeant Dean prior to his death, he referred only to social occasions and casual encounters. His lack of any record of seeing Sergeant Dean on 29 May 1991 confirms that this was not a professional occasion. His failure to recollect the last time he tested Sergeant Dean's blood pressure also confirms, in my mind, the proposition that he had long since ceased to be the treating doctor.

65 The circumstances in which this death certificate came to be signed at all are most unsatisfactory. Any moderately educated member of the community would be aware that living persons desiring to control their affairs beyond the grave are able to do so in some important respects by the execution of a will, which will is tested and supervised by the Supreme Court. There is no place in our society for an oral will passed on to a person who is not even a member of the family and then passed on after death by that person to others. Moreover, it would seem to me to be quite contrary to public policy to give effect to a testamentary expression of preference against the carrying out of a post-mortem examination when circumstances required it. What Dr Carter did was to take the law into his own hands. The certificate he signed is quite worthless and seems to me to include at least one untruth.

66 It leaves this Court potentially in the position of having to determine quite serious issues of fact without the benefit of a post-mortem examination, an examination which undoubtedly would have happened but for Dr Carter's improper intervention. The Western Australian Coroner was, as intended, deceived by Dr Carter's document and no further enquiries were made.

Commissioner's decision

67 On 12 August 1991 the Commissioner's delegate made a decision in the following terms:

In terms of s12C(1) of the Police Regulation (Superannuation) Act 1906, I decide that Detective Sergeant Dean's death was not caused by the member having been hurt on duty.

68 Pursuant to Police Regulation (Superannuation) Act, s21, Sergeant Dean's widow applied to the Court for a determination that the decision of the Commissioner be set aside and replaced by a decision that her late husband's death was caused by his having been hurt on duty. Her application for determination was filed on 16 October 1991. The hearing commenced at Queanbeyan on 9 October 1996, that is, almost five years later. I am not aware of the reasons for that lapse of time.

69 The hearing continued in Sydney on 17, 18 and 19 March 1997. Further evidence was taken in Sydney on 30 July 1997 and on 15 September 1997. Counsel then addressed.

The medical evidence

70 The applicant's solicitors consulted Dr Eric Schiller, an experienced cardiologist, seeking his opinion as to the cause of death. Dr Schiller reported on 7 March 1995. He had a statement from Mrs Dean and reports from the treating doctors. He accepted:

Severe and repeated emotional stress, long hours and work overload.

71 Dr Schiller concluded:

It is probable that the work pressures and emotional distress during the months prior to his death from January 1991 to May 1991 contributed to the deterioration in left ventricular function and his ultimate sudden death, whether this was due to mitral valve rupture or to a cardiac arrhythmia without valve rupture. This effect of stress might have been more marked if he had underlying coronary artery disease or significant blood pressure disturbances during the same periods, which we do not know.

72 Called at the trial, he gave the following evidence in chief:

Q. Doctor, we also know that this man [this is the evidence before his Honour] that he was in 1989 the acting detective sergeant at Queanbeyan Police Station, that he had been there from 1983 to 1989 as a working detective. The authorised strength were six, but there were occasions and many times there was less than the authorised strength of six people working, that in 1989 there was the deceased and another detective doing the majority of the work and the deceased was involved in two murder investigations in about May 1989 and also July 1989, that he was working excessively long hours and that he was not looking after his diet. He was not having sufficient sleep and that he was also drinking to excess. Would those factors have any significance as to the additional stress that you say would be placed upon a person suffering with a congenital condition of mitral valve collapse?

A. I think the conditions as you described them are sufficient to suggest that the man was working under considerable emotional stress and at times distress, that he was working very, very long hours and that he would at times have been exhausted. I think these conditions do contribute to adding to the work the heart has to do all the time.

Q. What effect would those emotional stressors and the type of work he was doing have in respect to the regurgitation of the mitral valve?

A. Well, if the heart is having to work harder there would be a greater tendency for it to dilate and eventually to fail, or at least to fail sooner than might otherwise be the case.

73 Further:

I think death was sudden and he had a cardiac arrest, most commonly due to ventricular fibrillation or ventricular asystole and I think that's what killed him. He may or may not have had a rupture of his mitral valve. I think that's supposition and I think it's perhaps more likely than not that he did not have a ruptured mitral valve.

74 Under cross-examination, Dr Schiller discounted the mitral valve hypothesis as follows:

Q. Your evidence a little short time ago was that you did not believe a rupture of the mitral valve to have occurred. Did I understand you to say that?

A. Yes, that's right.

Q. On what basis do you make that point?

A. Well, his death would be sufficiently explained by a cardiac arrest which could well have happened under the circumstances outlined of deteriorating cardiac function ... and heart failure. Where fibrillation and cardiac arrest is very common, mitral rupture is rare. People with mitral rupture, the few I have seen, do not necessarily die immediately. They go into heart failure, but they can be around for quite a while, long enough in many cases to supply them with a new mitral valve. I think on those grounds it is more likely, more probable than not, he died from a cardiac arrest rather than a mitral valve rupture.

75 Dr Schiller was recalled to the witness box two days later for further cross-examination in part as follows:

Q. If you assume that on 28 May 1991 he had consumed a fair consumption of alcohol which in turn acted as an acute cardiac depressant, that definitely would have compounded an already labouring heart?

A. Yes, it could well have done.

Q. And perhaps made it more liable to a spontaneous arrhythmia?

A. Possibly so, yes.

76 The applicant's solicitors also consulted Dr Peter Kendall, a consultant physician. He reported on 30 October 1994 and 29 June 1995, the latter after he had seen Dr Schiller's report. In the first instance Dr Kendall reported in part as follows:

We are told that the patient died from a ruptured mitral valve, but there is really no reason given for that diagnosis. It is much more likely that he died from a heart attack such as ventricular fibrillation and that this occurred not merely because of his mitral valve disease and the endocarditic valve which resulted from his strep viridans infection, but his coronary system was undermined by his longstanding hypertension. Unfortunately, whilst control of hypertension appears to have a very useful effect on reducing the morbidity and mortality from cerebrovascular disease, for some reason not perfectly understood, the same does not apply to coronary heart disease or at least only to a much smaller extent. If one accepts (as I certainly do on the basis of the history supplied) that this patient really was an alcoholic by definition (in modern terms), his hypertension was work-related and his death ultimately work-related. Moreover, his excessive alcohol intake appears to have been related to his exceptionally stressful police duties, self-neglect because of a high sense of duty and stressful occupation, leading inter alia to a neglect of antibiotic prophylactic use of penicillin before tooth extraction, thus leading to a subacute bacterial endocarditis also played a major part. Perhaps you could give me access to the death certificate and let me know whether or not this patient ever had a post-mortem carried out. I am firm in my provisional diagnosis that this man's heart disease was accelerated and aggravated by his work and his death precipitated by the conditions which were associated with this.

77 In his later report Dr Kendall says in part:

By and large, I think the cause of death is more likely to have been a heart attack as a result of occult coronary heart disease which was promoted by a stress-related lifestyle. This would have been probably by way of sudden ventricular fibrillation in a heart already damaged by coronary heart disease, i.e. a case of electrical destabilisation. However, the possibility of a rupture of or subintimal bleeding behind an atheromatous plaque occurring when there was a rise in blood pressure and the excitement leading up to the football game is another possibility as is coronary spasm. However, in any case it would have been on the basis of pre-existing coronary heart disease and I would be surprised if a post-mortem (or angiogram if it had been carried out) would not have shown significant coronary heart disease. The chain of events which I postulate on the balance of probabilities is that this man had an exceptionally stressful time over a number of years. That stress led to excessive alcohol intake and that is well-known to be a cause of hypertension which in turn predisposes to and promotes coronary heart disease (even with pharmacological control which probably was far from perfect because stress is likely to have interfered with that too). Add to this obesity and a very irregular lifestyle and the scene is set for the evolution of coronary heart disease.

78 Called at the trial, Dr Kendall expressed the view that Sergeant Dean should have been confined to desk duties. He was cross-examined at some length. His answers may be said to give rise to an argument that there were a number of factors operating so as to bring about Sergeant Dean's death. However, the doctor's central thesis remains intact. I read to him the notes made by the police medical officer on 20 March 1991, which I have set out above. I asked him whether on that history the sergeant was fit for work of a vigorous nature. He replied in the negative. Further:

Q. Just taking it that one step further with the question his Honour asked in relation to what he read to you, doctor, what is your opinion about the blood pressure reading 150 over 100?

A. Well, that is distinctly elevated and it not only exposes him to the danger of stroke, but it also is an added burden on his left ventricle and in its own right can lead to left ventricular failure even without the added insult of the mitral disease.

Q. The reading is not within normal limits?

A. No.

79 The respondent, of course, relied upon Professor Blackett who had examined Sergeant Dean about seven weeks prior to his death. I have already quoted from Professor Blackett's report of 16 April 1991. Following Sergeant Dean's death Professor Blackett was asked for his opinion. He reported on 6 July 1991. He lamented the fact that there was no autopsy and pointed out that he could only speculate as to the cause of death. He canvassed four possibilities. Firstly, he looked at rupture of the mitral valve appearing to place some reliance upon Dr Carter's death certificate which I myself for reasons given above would ignore. Secondly, he mentioned left ventricular fibrillation. Thirdly, he looked at the development of a clot and then proceeded:

A third possibility (i.e. the fourth possibility), perhaps less likely, is that he had a coronary occlusion unrelated to the mitral valve prolapse. He was overweight and hypertensive and these would predispose him to coronary disease, although I don't believe he ever complained of angina. When I saw Mr Dean on 9 April 1991, I was somewhat concerned at the degree of mitral regurgitation as indicated by the physical signs and by the echocardiographic report of 25 February 1991. I had reservations about his capacity to perform full duties. I thought that he would need mitral valve replacement, but unwisely did not emphasise that this should be sooner rather than later. I think that those who have been concerned with Mr Dean's medical care would accept that it was unwise for him to continue on duty, even of a restricted nature, given the severity of his mitral valve disease. I regret that I did not take a stronger line in my report of 16 April.

80 It is to be noted that having listed the possibilities, Professor Blackett in his written report makes no choice and expresses no preference. His negative reference to: "Capacity to perform full duties" seems to me to carry an overwhelming implication that the stress involved in Sergeant Dean's job was a potential killer. Professor Blackett gave evidence at the trial. In chief he expresses a strong preference for a rupture of the mitral valve as being the cause of death. Under cross-examination, Professor Blackett agreed that the deceased had suffered a cardiac arrest and that its cause was speculative. Professor Blackett was cross-examined about Sergeant Dean's duties in the months preceding his death:

Q. Doctor, I want you to assume that there has been evidence before his Honour that Mr Dean did not just restrict himself to clerical duties but that he also performed operational duties after his return to work on or about 15 January 1991 and if he was to have done operational duties which required him to arrest people, go out into the field for want of a better word, make enquiries, investigations, that type of work would have been injurious to his health, would it not?

A. I would agree that it wouldn't be desirable for him to resume such duties.

Q. And there has also been some evidence before his Honour as late as yesterday afternoon that the late Mr Dean, somewhere in the time between January in 1991 accompanied an inspector of police on a three-day operation where a marijuana plantation on the first day of the operation was physically searched by Mr Dean and the inspector, and that there were booby traps on this plantation, that there were trip wires leading to shotguns and that the terrain was roughly forested. Walking over that type of terrain for a couple of hours in those type of circumstances would be injurious to a person in the health condition that Mr Dean was at that time?

A. I would tend to agree with you for two counts. A, he had valve disease that had been proven and secondly, he remained both overweight and unfit.

Q. Yes?

A. As proven by the test that he quoted to me.

Q. Had he also on occasions had elevated blood pressure?

A. Yes.

Q. And all those factors taken together could have contributed to coronary disease?

A. They could have, but as far as I can see, there was no evidence that he ever had coronary disease.

81 The professor was also cross-examined about the overtime done by the deceased man in the months leading to his death. The basis for those questions to be found in Sergeant Dean's notebook and is not challenged. The cross-examination is as follows:

Q. And so what I am suggesting to you, for Mr Dean to work those number of hours on an average of 9 or 10 hours per week over that period between January and May 1991 would have worsened or made worse his heart condition?

A. I think that his heart condition was deteriorating irrespective of his work. Work wasn't making his heart deteriorate, his heart was deteriorating because the abnormality that he had, mitral valve prolapse, was getting worse.

Q. If his condition was deteriorating, as you say, was it accelerated, the deterioration accelerated by those excessive hours and the type of work that Mr Dean did?

A. I really can't say that, because--I mean, the leap in logic is just too great for me just to make that conclusion.

Q. Are you prepared to make a concession on possibility?

A. It's possible. It's possible.

82 The respondent also relied upon the evidence of Dr Zelman Freeman, a consultant physician. In his report of 13 January 1997 he concluded as follows:

Dr P Kendall in his report of 29 June 1995 conjectures that this man might have died from a coronary occlusion, which he then hypothesises as being due to Sergeant Dean's stressful time over a number of years which may be predisposed him to hypertension, which in turn could have led to the promotion of coronary disease despite pharmacological control of his blood pressure, and this together with his obesity set the stage of the evolution of coronary heart disease. There is nothing to substantiate Dr Kendall's suggestion, so that while his thesis is possible, I do not regard it as probable. The mode of death was apparently sudden and although the exact circumstances are not described, it would appear that he collapsed before joining the field to play a game of rugby. Accepting the death certificate diagnosis at its face value, a rupture of a diseased mitral valve could put an intolerable burden on the heart and cause death, and more likely than it being a rupture of the valve, it could have been a rupture of the chordae tendineae (one of a number of cords attached to the mitral valve which prevents it turning inside out). This may well have been weakened by his previous endocarditis. Taking into account the documented facts about this case, I do not consider that the onset of his death was either caused, accelerated or exacerbated by his duties as a policeman and his death was due to constitutional causes.

83 Under cross-examination at the trial Dr Freeman maintained his stance that stress was not a factor in the cause of death. Pressed, he said: "In medicine, anything is possible".

The issues

84 The matters that directly give rise to this hearing began on 12 August 1991. On that day, two documents came into being, Exhibit A and Exhibit 7. Involved were two separate legal entities, the Commissioner of Police and the State Authorities Superannuation Board. The documents were brought into being by virtue and for the purposes of s12C of the Police Regulation (Superannuation) Act 1906 (the Superannuation Act). S12C reads:

(1) If a member of the police force dies, the Commissioner of Police is to decide whether or not the member's death was caused by the member having been hurt on duty and is to notify the Board of the decision.

(2) At the request of the Board, the Commissioner of Police is to decide whether or not the death of a former member of the police force was caused by the former member having been hurt on duty while a member of the police force.

(3) The Commissioner of Police is to give the Board written notification of each decision made by the Commissioner under this section.

(4) On being notified of a decision of the Commissioner under this section, the Board:

(a) is to give written notification of the decision to each person who in the opinion of the Board would be benefited by a decision under this Act that the member or former member had been hurt on duty; and

(b) is to do so whether or not the decision of the Commissioner was that the member or former member had been hurt on duty.

85 The procedures established by the section are circuitous in nature. The Board is to request the Commissioner to decide whether or not the death was caused by having been hurt on duty. The Commissioner is to make the decision. The Commissioner is to give the Board written notice of the decision. The decision contemplated by s12C(1) is embodied in the written notification contemplated by s12C(3). It is Exhibit A. I have already set out its substance.

86 It is later in time than Exhibit 7, which is the request of the Board as contemplated by s12C(2). Exhibit 7 reads in part as follows:

Recommendation: On the basis of Professor Blackett's opinion, it is recommended that Detective Sergeant Dean's death due to mitral valve rupture be not classified as having resulted from or caused by him having been hurt on duty. A letter to the Police Superannuation Advisory Committee to this effect is attached for your signature should you agree with my recommendation.

87 That document is signed by somebody describing himself as the Assistant Manager, Workers Compensation. Further down the page it is marked "Approved" and signed by a person described as Executive Director, Human Resources. That signature is accompanied by the date "12/8".

88 It will be seen at once that Exhibit A makes no reference to the cause of death; nor could it. What is required of the Commissioner is a decision on whether or not Sergeant Dean had been hurt on duty. True it is that Exhibit 7 makes a reference to a cause of death which it asserts. There is no requirement in s12C(2) that it should do so. It seems to me that this "finding", if the approval amounts to a finding, is ultra vires the section.

The application

89 The matter comes before the Court pursuant to s21 of the Superannuation Act which reads in part as follows:

(1) A person who considers himself aggrieved by:

(a) a decision made by the Board on a matter that arises under this Act by reason of a member of the police force being hurt on duty; or

(b) a decision made by the Commissioner of Police under section 10B(3)(a), 12C(1), 12C(2) or 12D(4)(a)

may, within the period of 6 months after the person is notified of that decision, apply to the Compensation Court for a determination in relation to that decision.

(2) Notification of a decision under subsection (1) is to be given in writing.

(3) The Board or the Commissioner of Police, as the case may be, is entitled to be represented at the hearing of an application under this section.

(4) The Compensation Court, after considering an application under this section, may make a determination that the decision of the Board or the Commissioner of Police, as the case may be, in respect of which the application was made

(a) be confirmed; or

(b) be set aside and replaced by a different decision made by the Compensation Court.

(5) The Compensation Court shall not make a decision referred to in subsection (4)(b) unless the Board or the Commissioner of Police, as the case may be, could pursuant to the Act make that decision.

(6) Where the Compensation Court makes a decision referred to in subsection (4)(b) that decision shall, for the purposes of this Act, be deemed to made by the Board or the Commissioner of Police, as the case may be, and shall be carried into effect.

90 The applicant's application was made on 16 October 1991.

The scope of the determination

91 The Superannuation Act creates rights in respect of two classes of person:

1. disabled members and disabled former members of the Police Service who are still alive; and

2. spouses and personal representatives of members and former members of the Police Service who have died.

92 I am, of course, directly concerned only with the latter in the instant case.

93 By reason of the first submission made by Ms McFee of counsel for the respondent, it is necessary to examine the scheme of the Act as it applies to members of the former category. So far as is necessary for the purpose of Ms McFee's submission, s10B of the Superannuation Act reads as follows:

(1) An annual superannuation allowance shall not be granted under section 10 to a member of the police force who is discharged unless the Board (having regard to medical advice on the condition and fitness for employment of a member) has certified the member to be incapable from a specified infirmity of body or mind of discharging the duties of his office.

...

(3) Where a member or former member of the police force is duly certified under section (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 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.

94 Clearly the first step in the scheme provided for by s10B is the certification by the Board of an incapacity from a specified infirmity. The second step is the decision by the Commissioner as to whether or not the infirmity was caused his being hurt on duty. There is no provision for the Commissioner to go behind the Board's certification of the specified infirmity.

95 Ms McFee submits that by reason of s21(5) of the Superannuation Act, the Court is unable to go behind the Board's certification in a s10B case. This submission is supported by authority and it is accepted by Mr Edwards of counsel for the applicant as being the law. However, Ms McFee goes further. She seeks to translate the situation I have described in a s10B case so that it has application to a s12C case. I cannot see that s10B bears any relation to s12C. Neither section nor any other contains such a provision. Ms McFee seeks to support her submission by reference to what is said to be the cause of death in Exhibit 7. As I have said, that reference seems to me to be ultra vires s12B and nothing flows from it. It follows that the Court is not prevented by s21(5) from making its own decision as to the cause of death if that becomes necessary.

Hurt on duty

96 The notion "hurt on duty" in s12C of the Superannuation Act is defined in s1(2) of the Act as follows:

"hurt on duty" in relation to a member of the police force means injured in such circumstances as would, if he were a worker within the meaning of the Workers Compensation Act 1987, entitle him to compensation under that Act.

97 It is necessary then to look at s4 of the Workers Compensation Act 1987 (the Compensation Act). In s4 of the Compensation Act injury is defined as follows:

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, ...

98 It follows, the applicant's argument runs, that the applicant needs only to show that Sergeant Dean's death was caused by an aggravation or acceleration of a disease, which aggravation etc. was contributed to by his employment. To reach that conclusion, it is not necessary for the applicant to isolate or for me to find expressly the precise disease involved. It is sufficient, the argument runs, for the applicant to prove that there was a disease to the aggravation etc. of which the employment contributed. That seems to me to be a sound argument.

The disease

99 Four possibilities emerge from the evidence:

1. rupture of the mitral valve;

2. rupture of the chorda tendineae;

3. cardiac arrest; and

4. heart attack.

100 In the view I have formed about the scheme of the Act, I am not required to be satisfied that the immediate cause of death was one of the above as distinct from the others. In respect to the immediate cause of death, the applicant needs only to show that it was one or other of the above. Plainly, it must have been one of the above. The real issue in the case is that raised by paragraph (b)(ii) of the definition of injury. Dr Schiller and Dr Kendall each opine that stress is a factor in the acceleration or aggravation of Sergeant Dean's condition. Each of Professor Blackett and Dr Freeman, whilst not embracing stress as an aggravating factor, nevertheless allows the possibility that it is so. For my own part, I see the balance of medical evidence as supporting the applicant's case. To that must be added the overwhelming evidence of the stress involved in this man's life in the 12 months leading up to his death. It matters not that lifestyle factors may also have contributed to his condition. It matters not that he may have contracted an infection from the dentist. What does matter is that he had a disease to the aggravation, acceleration, exacerbation or deterioration of which his employment was a contributing factor.

101 I am satisfied that it is more probable than not that whatever the immediate cause of death, Sergeant Dean suffered a disease which was aggravated, accelerated or exacerbated by or deteriorated as a result of stress in his employment with the respondent.

102 I order that the determination made on 12 August 1991 by the Commissioner of Police that Detective Sergeant Dean's death was not caused by his having been hurt on duty be set aside.

103 I decide that Detective Sergeant Dean's death was caused by his having been hurt on duty.

104 I order the respondent to pay the applicant's costs.

Orders accordingly

Solicitors for the applicant: Taylor & Scott

Solicitors for the respondent: Legal Services Branch, NSW Police Service