Conway v SAS Trustee Corporation - [2012] NSWDC 249

District Court

New South Wales

Medium Neutral Citation: Conway v SAS Trustee Corporation [2012] NSWDC 249
Hearing dates: 2, 3, 9 October 2012
Decision date: 09 October 2012
Before: Neilson DCJ
Decision:
I set aside the decision of the defendant, made by its delegate, PSAC, on 24 November 2011, and I decide that the plaintiff's pension ought be increased to 90% of the salary of his office, commencing on 28 November 2008

Catchwords: Police - Disabled member of police force medically discharged from force as result of multiple infirmities caused by being hurt on duty when member of force - Disabled member totally incapacitated for work outside force - Determination of former officer's annual superannuation allowance inclusive of special risk benefit - Meaning of "risks members of general workforce ... would normally not be required to be exposed"
Legislation Cited: Police Regulation (Superannuation) Act 1906, s 10(1A)(c)
Cases Cited: Byrne v SAS Trustee Corporation, NSWDC, RJ416/07, Truss DCJ, 16 May 2008, unreported
Thoms v SAS Trustee Corporation, NSWCC No 7721/98, Geraghty J, 5 July 1999, unreported
Walsh v SAS Trustee Corporation [2004] 1 DDCR 438
Category: Principal judgment
Parties: Mark Conway (Plaintiff)
State Super SAS Trustee Corporation (Defendant)
Representation: Mr T Edwards (Plaintiff)
Mr T Ower (Defendant)
Harris Wheeler (Plaintiff)
Mr R Blume (Defendant)

File Number(s): RJ124/12

Judgment

The plaintiff, Mr Mark Conway, is a former sergeant of police. He was attested as a probationary constable of police on 8 December 1975 and thereupon became a contributor to the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906 (the Act).

On 30 October 2008, the Police Superannuation Advisory Committee established under the Act decided that the plaintiff was incapable of discharging the duties of his office on account of the following infirmities:

"Chronic adjustment disorder, with anxiety and depressed mood; mild neuro-cognitive disorder; bilateral tinnitus and bilateral sensory neural hearing loss; mild supraspinatus tendonitis at the right shoulder; degenerative changes with disc space narrowing and osteophyte formation at the C4/5, C5/6 and C6/7 cervical spine; avulsion injury to the tip of the medial malleolus and compression fractures in the mid thoracic spine T7 to T9; and post traumatic osteoarthritis to both knees."

As a result of that certificate of PSAC, the plaintiff was medically discharged from the New South Wales Police Force on 27 November 2008. Eventually, after proceedings in this Court, the Commissioner of Police, by his delegate, determined on 16 July 2010 that the plaintiff had sustained a number of injuries on a number of dates. According to exhibit G, the following dates and injuries are specified:

Dates
Injuries
19 January 1982
Left knee
15 September 1982
Neck and mild neuro-cognitive disorder
7 November 1984
Neck and back
13 January 1989
Right shoulder and neck
21 October 2003
Back
1 September 2006
Right knee
18 July 2007
Psychological
15 August 2007
Hearing loss/tinnitus

As a result of that certification by the Commissioner of Police, the plaintiff became entitled to a "hurt on duty" pension pursuant to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Conway v SAS Trustee Corporation and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWDC 249
Decision Date: 09 October 2012

CaseChat Overview and Summary

The court was presented with a case between Conway and the SAS Trustee Corporation, concerning the determination of an annual superannuation allowance for a former police officer, Conway, who had been medically discharged due to multiple infirmities resulting from injuries sustained during his service. Conway's claim was for an increased pension, including a special risk benefit, which he argued should reflect the unique risks associated with his line of duty. The legal issues at hand revolved around the interpretation of the term "risks members of the general workforce... would normally not be required to be exposed" in the context of calculating a pension for a disabled police officer, and whether Conway's particular circumstances warranted such a benefit.

The court examined the specific risks faced by police officers and compared them to the risks encountered by the general workforce. It considered the unique nature of police work, which inherently involves higher risks of injury and harm. The court deliberated on whether the risks Conway was exposed to were of a kind that the general workforce would not typically encounter. Ultimately, the court found that Conway's service as a police officer exposed him to significant and unique risks that were not normally faced by the general workforce. This distinction was pivotal in determining the appropriate level of pension benefits to which Conway was entitled.

In setting aside the decision made by the SAS Trustee Corporation, the court ruled that Conway's pension should be increased to 90% of the salary of his office, effective from 28 November 2008. This decision recognised the extraordinary risks Conway faced in his role and the impact these had on his ability to work outside of the police force. The court's judgment emphasised the need to appropriately compensate for the unique dangers inherent in police work when determining pension entitlements for disabled officers.

Orders

Orders of the court

I set aside the decision of the defendant, made by its delegate, PSAC, on 24 November 2011, and I decide that the plaintiff's pension ought be increased to 90% of the salary of his office, commencing on 28 November 2008

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Conway v SAS Trustee Corporation [2012] NSWDC 249
Hearing dates:	2, 3, 9 October 2012
Decision date:	09 October 2012
Before:	Neilson DCJ
Decision:	I set aside the decision of the defendant, made by its delegate, PSAC, on 24 November 2011, and I decide that the plaintiff's pension ought be increased to 90% of the salary of his office, commencing on 28 November 2008
Catchwords:	Police - Disabled member of police force medically discharged from force as result of multiple infirmities caused by being hurt on duty when member of force - Disabled member totally incapacitated for work outside force - Determination of former officer's annual superannuation allowance inclusive of special risk benefit - Meaning of "risks members of general workforce ... would normally not be required to be exposed"
Legislation Cited:	Police Regulation (Superannuation) Act 1906, s 10(1A)(c)
Cases Cited:	Byrne v SAS Trustee Corporation, NSWDC, RJ416/07, Truss DCJ, 16 May 2008, unreported Thoms v SAS Trustee Corporation, NSWCC No 7721/98, Geraghty J, 5 July 1999, unreported Walsh v SAS Trustee Corporation [2004] 1 DDCR 438
Category:	Principal judgment
Parties:	Mark Conway (Plaintiff) State Super SAS Trustee Corporation (Defendant)
Representation:	Mr T Edwards (Plaintiff) Mr T Ower (Defendant) Harris Wheeler (Plaintiff) Mr R Blume (Defendant)
File Number(s):	RJ124/12

Dates	Injuries
19 January 1982	Left knee
15 September 1982	Neck and mild neuro-cognitive disorder
7 November 1984	Neck and back
13 January 1989	Right shoulder and neck
21 October 2003	Back
1 September 2006	Right knee
18 July 2007	Psychological
15 August 2007	Hearing loss/tinnitus