Day v SAS Trustee Corporation

[2009] NSWCA 222

New South Wales

Court of Appeal

CITATION:	Day v SAS Trustee Corporation [2009] NSWCA 222
HEARING DATE(S):	3 July 2009
JUDGMENT DATE:	31 July 2009
JUDGMENT OF:	Giles JA at 1; Ipp JA at 75; Basten JA at 76
DECISION:	(1) Appeal allowed; (2) Set aside the order made on 4 July 2008 confirming the Committee's decision; (3) Remit the matter to the District Court for new determination; (4) Respondent pay the appellant's costs.
CATCHWORDS:	Police officer - widow's superannuation entitlement - Commissioner determined officer's death caused by being hurt on duty - hurt on duty meant injury in course of and substantially contributed to by employment - parties conducted case on basis hurt on duty by reason of archiving acitivities - application to District Court requiring determination concerning nature of risks to which officer exposed - judge not satisfied death suffered by reason of or in course of archiving duties or employment at all - not consistent with Commissioner's determination - also departed from common position in proceedings - gave grievances in point of law - appeal upheld and remission for new determination.
CASES CITED:	Commissioner of Police v Kennedy [2007] NSWCA 328; Commissioner of Police v SAS Trustee Corporation (2002) 131 IR 243; Larson v Commissioner of Police [2004] NSWCA 126; Murray v Commissioner of Police [2004] NSWCA 365; Saad v Commissioner of Police (1995) 12 NSWCCR 70.
PARTIES:	Jacqueline Louise Day - Appellant SAS Trustee corporation - Respondent
FILE NUMBER(S):	CA 40322/08
COUNSEL:	B Gross QC & S Tzouganatos - Appellant T Ower - Respondent
SOLICITORS:	Walter Madden Jenkins - Appellant SAS Trustee Corporation - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	RJ 397/06
LOWER COURT JUDICIAL OFFICER:	O'Toole DCJ
LOWER COURT DATE OF DECISION:	4 July 2009

CA 40322/08
DC RJ397/06

GILES JA
IPP JA
BASTEN JA

Friday 31 July 2009

DAY v SAS TRUSTEE CORPORATION

Judgment

1 GILES JA: The appellant is the widow of Mr Andrew Day, at the time of his death a Detective Inspector in the NSW Police Force. She appealed from the confirmation by O’Toole DCJ of the respondent’s decision that Mr Day’s being hurt on duty was not “because [he] 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” within s 12(1AA)(a)(ii) of the Police Regulation (Superannuation) Act 1906 (“the Act”). The decision denied to the appellant an annual superannuation allowance under the Act at a rate higher than that determined by the respondent.

2 The trial judge was exercising the jurisdiction conferred by s 21 of the Act. A person who considers himself or herself aggrieved by “a decision made by [the respondent] on a matter that arises under this Act by reason of a member of the police force being hurt on duty” can “apply to the District Court for a determination in relation to that decision” (s 21(1)). After considering the application, the District Court “may make a determination that the decision of [the respondent] … in respect of which the application was made” be confirmed, or that it be set aside and replaced by a different decision made by the District Court (s 21(4)).

3 The jurisdiction is part of the “residual jurisdiction” conferred on the District Court by the operation of the Compensation Court Repeal Act 2002. The District Court has the same powers, authorities, duties and functions as the Compensation Court formerly had under the Compensation Court Act 1984 (District Court Act 1973, s 142I). Its decision on any matter “is to be on the real merits and justice of the case” and it is “not bound to follow strict legal precedent” (s 142J(1)(a), (b)).

4 An appeal lies to this Court from the determination made in the District Court pursuant to s 142N of the District Court Act, relevantly where a party to the proceedings in the District Court “is aggrieved by an award of the Court in point of law” (s 142N(1)). A leave requirement in s 142N(4) does not apply in this case. It was not suggested that “award” does not include a determination as referred to in s 21 of the Act. This Court may remit the matter to the District Court for determination in accordance with its decision, or make such other order in relation to the appeal as it thinks fit (s 142N(2)).

5 Grounds of appeal 2 and 2A were -

“2. Her Honour erred in law by failing to give full and conclusive effect to:

(a) the finding made by the Delegate of the Commissioner of Police on 21 April 2006 that the Deceased’s death was due to being hurt on duty;

(b) the letter from the respondent dated 8 March 2007 acknowledging that the only basis for the certificate of the Commissioner of Police under s 12C(1) of the Police Regulation (Superannuation) Act and consequently, the Respondent’s decision under the Appellant’s appeal to the District Court, was the Appellant’s allegation that the ‘archiving duties’ caused the Deceased’s death; and

(c) the concession by the Commissioner of Police by letter dated on or about 25 July 2007, as to the features of the Deceased’s employment which the Commissioner of Police took into account in issuing the certificate that the Deceased’s death was due to being hurt on duty.

2A. Her Honour erred in law by not affording the Appellant procedural fairness in considering and deciding a matter that had been agreed by the parties, namely that the Deceased’s death was caused by the pneumonia he contracted in the course of archiving duties.”

6 The Court heard the parties on these two grounds, and reserved its decision without full submissions on the other grounds of appeal.

7 For the reasons which follow, in my opinion the appeal should be upheld. The trial judge’s order confirming the respondent’s decision should be set aside, and the matter should be remitted to the District Court for determination anew.

The circumstances of Mr Day’s death

8 Mr Day joined the NSW Police Force (then the Police Service) in 1983. He served in various capacities and received promotions.

9 Prior to the events next described Mr Day had suffered from hypertension, for which he took medication, and rheumatoid and psoriatic arthritis, for which he also took medications. A cardiologist had diagnosed diastolic disfunction as a symptom of hypertension.

10 From December 1998 Mr Day was Superintendent of the Organised Crime South East Asian Squad (“the Crime Squad”). The Crime Squad operated from premises at Rosehill in Sydney. It stored the records of its investigations which were not in daily use in a garage adjacent to the premises.

11 In the latter part of 2003 records stored in the garage were transferred from Rosehill to Police Headquarters at Parramatta. Mr Day was responsible for the transfer, and assisted members of the Crime Squad to cull the records in preparation for the transfer. The records were inspected and either discarded or put aside to be taken to Parramatta.

12 The garage and the records stored in it were dirty and dusty, and according to some of the evidence there were bird droppings from birds nesting in the roof of the garage on the floor and the boxes of records. There was no fixed or mechanical ventilation in the garage; sometimes its door was opened to admit air. Conditions in the garage were uncomfortably warm.

13 Between 15 October and 31 October Mr Day worked intermittently with other members of the Crime Squad on the task of culling the records. On 1 or 2 November 2003 he developed a cough, abnormal sputum, breathlessness, “cold shivers rigors” and a fever. On 3 November 2003 a doctor diagnosed a respiratory infection. On 5 November 2003 another doctor provisionally diagnosed “basal changes” in Mr Day’s lungs, symptomatic of pneumonia. Various radiological and pathological investigations were made, the former confirming the diagnosis of pneumonia and the latter reporting thrombocytopenia and acute neutropenia (conditions of the blood).

14 On the afternoon of 5 November 2003 Mr Day was incapable of signing his name. He was urgently admitted to hospital.

15 Mr Day remained in hospital until his death on 14 November 2003. There were many investigations and measures to treat his condition, under the care of specialists in haematology, rheumatology and infectious diseases. The trial judge described in detail the course of Mr Day’s condition and the investigations and treatment. It is not necessary to go to the detail; I will later refer to her Honour’s conclusion concerning isolation of the cause of his respiratory infection.

16 On 14 November 2003 Mr Day was found on the floor beside his bed. The supply of oxygen being administered to him had been interrupted. He was in cardiac arrest when found, and could not be resuscitated.

17 It was reported to the Coroner that Mr Day had died of hypoxaemia secondary to severe pneumonia. After an inquest, the Coroner found that he had died -

“ … of cardiac arrhythmia following hypoxaemia due to displacement of oxygen supply. The other significant condition contributing to the death but relating to the condition causing it was pneumonia”.

18 In his reasons the Coroner accepted medical evidence that, despite his treatment, Mr Day was suffering a gradual decline and “the chance of recovery [from the pneumonia] was unlikely”.

Entitlement to an annual superannuation allowance

19 The respondent is a statutory corporation, formerly the State Authorities Superannuation Board and continued by s 48 of the Superannuation Administration Act 1996. By s 49 of that Act, it is the trustee of superannuation schemes established or constituted under a number of Acts, including the Police Superannuation Fund established and placed under its control by the Act, and must administer the schemes. In the Act it is referred to as STC.

20 Section 12C of the Act relevantly provides -

“ 12C Determination as to whether death resulted from being hurt on duty

(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 STC of the decision.

(2) ...

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

(4) ...”

21 Section 1(2) of the Act includes that “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 a member to compensation under that Act.”

22 Section 21 of the Act provides also for application to the District Court for a determination in relation to “a decision made by the Commissioner of Police under section … 12C(1) … ”. As with a decision of the respondent, a decision of the Commissioner of Police (“the Commissioner”) can be confirmed, or set aside and replaced with a different decision made by the Court.

23 Section 12 of the Act relevantly provides -

“ 12 Superannuation allowance where a member or former member dies as a result of being hurt on duty

(1) Subject to this section, where:


(a) a member of the police force dies, or

(b) …
and his or her death is determined, pursuant to section 12C or on appeal, to have been caused by the member being hurt on duty … STC may authorise the payment to or on behalf of:

(c) the spouse or de facto partner, father, mother or children of the member … , or

(d) any other relatives (including dependants within the meaning of Division 1 of Part 3 of the Workers Compensation Act 1987) wholly or partly dependent upon the member … at the time of his or her death,
of an annual superannuation allowance of such amount as STC determines, not exceeding the rate prescribed by subsection (1AA).

(1AA) The prescribed rate for the purposes of subsection (1) is:

(a) in the case of the death of a member of the police force:

(i) 55 per cent of the attributed salary of office of the deceased member at the time of death, and

(ii) if, 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 rate that is not more than 7.5 per cent of that attributed salary of office and that is, in the opinion of STC, commensurate with the risks to which the member was required to be exposed,
multiplied by the equivalent service ratio for the member as at the member’s date of death, or
(b) ...”

24 The first step in the appellant obtaining an annual superannuation allowance following Mr Day’s death, then, would be a decision by the Commissioner that Mr Day’s death was caused by him being hurt on duty. Adding in the definition of “hurt on duty”, that means a decision that Mr Day’s death was caused by him being injured in such circumstances as would, if he were a worker within the meaning of the Workers Compensation Act 1987 (“the WC Act”), entitle him to compensation under that Act.

25 The second step would be authorisation by the respondent of payment to the appellant of an annual superannuation allowance of an amount not exceeding the “rate prescribed by subsection (1AA)” of s 12C. Without more, the prescribed rate would be in accordance with s 12C(1AA)(a)(i). As part of the second step, there could be the formation by the respondent of the opinions in s 12C(1AA)(a)(ii) whereby an additional rate could come into the determination of the annual superannuation allowance. The necessary opinions would be -

(a) that Mr Day was hurt on duty because he was required to be exposed to risks which members of the general workforce would not normally be required to be exposed in the course of their employment; and

(b) that the additional rate (being not more than 7.5 per cent) was commensurate with the risks to which Mr Day was required to be exposed.

The decision that Mr Day’s death was caused by him being hurt on duty

26 There is constituted by the Act a Police Superannuation Advisory Committee (“the Committee”) (s 2H). The Committee’s functions include advising the respondent on such matters relating to the administration of the Act as are referred to it by the respondent (s 2I), and the respondent may delegate to the Committee any of its functions under the Act other than the power of delegation (s 2J).

27 Initially the Commissioner’s Delegate decided that Mr Day’s death was not caused by him being hurt on duty. However, on 21 April 2006 the Commissioner’s Delegate wrote to the Committee -

“The decision of the Delegate for the Commissioner of Police dated 23 March 2004 has been rescinded and replaced with the following decision.
In terms of Section 12C(1) of the Police Regulation (Superannuation) Act, 1906, (as amended), the Commissioner has decided that Detective Inspector Day’s death, on 14 November 2003 was caused by him being hurt on duty.”

28 This was the “finding” referred to in para (a) of ground of appeal 2. The Commissioner’s decision as conveyed by the letter, and its written notification to the respondent, were common ground in the proceedings.

29 It is convenient at this point to say something more of the Commissioner’s decision.

30 First, the letter it did not elaborate on the circumstances in which Mr Day was hurt on duty, or on the causal connection between him being hurt on duty and his death. It was a statement of the decision required by s 12C(1), and no more.

31 Secondly, it was also common ground that the Commissioner’s decision was binding on the parties, including in the application determined by the trial judge. There can be an “appeal” against a decision of the Commissioner under s 21 of the Act, but in its nature neither the appellant nor the Commissioner was aggrieved by this decision and the respondent accepted that it was not a person who could be aggrieved (Commissioner of Police v SAS Trustee Corporation (2002) 131 IR 243 at [54]). In Saad v Commissioner of Police (1995) 12 NSWCCR 70 it was taken, at 75, that the judge hearing an application under s 21 of the Act was bound to accept that the police officer was suffering from the infirmity when the respondent’s predecessor had certified, pursuant to the then s 1OB(1) of the Act, that the discharged member of the police force was “incapable, from a specified infirmity of body or mind”, of exercising functions of a police officer. The conclusiveness of such a certificate was accepted in Larson v Commissioner of Police [2004] NSWCA 126 at [35] and Murray v Commissioner of Police [2004] NSWCA 365 at [29]. That does not necessarily translate to a binding decision of the Commissioner under s 12C(1), but I proceed on the basis of the common ground.

32 Thirdly, and by force of the definition of “hurt on duty” in the Act, the decision established two matters. Under the WC Act compensation is not payable unless there was “personal injury arising out of or in the course of employment” (s 4(1)) and the employment was “a substantial contributory factor to the injury” (s 9A(1)). The satisfaction of these requirements is a necessary condition for entitlement to compensation under that Act, although it may not be a sufficient condition, see Larson v Commissioner of Police at [37]-[39]. The decision established that Mr Day’s injury arose out of or in the course of his employment and his employment was a substantial contributing factor to it.

33 Fourthly, however, the Commissioner’s decision was binding only as a decision that Mr Day’s death was caused by him being hurt on duty. If he was authorised by s 12C(1) to say more in his decision, with binding effect, concerning the circumstances in which Mr Day was hurt on duty and the causal connection with his death, the Commissioner did not do so. (I do not suggest s 12C(1) did provide that authority.) As was said by Basten JA in Commissioner of Police v Kennedy [2007] NSWCA 328 at [49] the definition of “hurt on duty”, picking up the concept of an injury which triggers an entitlement to compensation, does not “import into the definition an assessment of the nature or extent of the injury or of the compensation payable in respect of it”. It is not correct that, as the appellant submitted, the trial judge was bound by a determination by the Commissioner that Mr Day’s death was from respiratory illness from the duties carried out in the garage.

The respondent’s determination of an annual superannuation allowance

34 No doubt in order to consider whether the annual superannuation allowance should be at an additional rate pursuant to s 12(1AA)(a)(ii) of the Act, on 28 April 2006 the respondent wrote to the Workers Compensation Section of the NSW Police Service noting that Mr Day’s “death has now been deemed to be hurt on duty” and asking -

“It would be appreciated if you would forward details in relation to the circumstances of his death in order for us to ascertain the degree of risk, if any, peculiar to police work to which the late member was required to be exposed at the time of injury resulting in death.”

35 The reply dated 11 May 2006, directed to the Committee, was -

“On 15 October 2003 Detective Inspector Day commenced archiving old briefs for relocation to the Parramatta Headquarters. He performed these duties in the garage next to his workplace, on and off for a period of approximately two weeks. Mr Day passed away on 14 November 2003. Cause of death was reported as being due to ‘viral pneumonia’.
On 1 December 2003 Mrs Day submitted a request for her husband’s death to be considered as being duty related, claiming that his ‘archiving duties’ at his workplace garage where the physical work environment could be deemed as hazardous resulted in his death.

On 21 April 2006 a certificate in terms of Section 12C(1) was issued, accepting Detective Inspector Day’s death as being caused by him being hurt on duty.”

36 On 31 May 2006 the respondent wrote to the appellant advising her that the Committee had “decided to approve the following benefits”, relevantly that she “be paid a pension of 55% of the deceased’s salary of office in terms of section 12(1AA)(a)(i) payable from the date of death of Mr Andrew Day”. The letter informed the appellant of her right to apply to the District Court.

37 It can be assumed that the Committee’s decision was made under delegated authority, or was adopted by the respondent in sending the letter. It was implicit that the respondent declined to come to the opinion that Mr Day’s being hurt on duty was because he was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed.

Matters thereafter

38 On 29 September 2006 the appellant brought proceedings in the District Court claiming that the Committee’s (sic) decision be set aside and she “be awarded an annual superannuation allowance calculated in accordance with Section 12 (1AA)(a)(ii) of [the Act]”.

39 The pleading in the statement of claim was rather discursive, and save for the matter next mentioned need not be described.

40 The pleading included, in paras 6, 7, 8 and 9, allegations that in the course of his police duties Mr Day had frequently been placed in stressful situations and that he had developed and been diagnosed with psoriasis and hypertension. It was alleged in para 18 that -

“18. Due to the unusual risks to which the Deceased was exposed he suffered hypertension which caused a deterioration in his general health and made him more susceptible to the respiratory infection that he suffered which was caused by, or substantially contributed to, by the filthy conditions in which the Deceased worked when undertaking archiving duties in covert premises clearing the covert premises referred to in paragraphs 10 and 11 above.”

41 On 8 March 2007 the respondent wrote to the appellant’s solicitors inviting the deletion of paras 6, 7, 8 and 9. The respondent provided copies of the letters of 28 April 2006 and 11 May 2006 to which I have referred, and said -

“It is clear from the enclosed correspondence that the only basis for the Commissioner’s s. 12C(1) certificate and, consequently, my client’s [sic] decision under appeal, was your client’s allegation that the ‘archiving duties’ caused the deceased’s death. Therefore, your client cannot be ‘aggrieved’, as a matter of law, with regard to the matters pleaded in paragraphs 6, 7, 8 and 9 of the statement of claim.”

42 This was the letter referred to in para (b) of ground of appeal 2.

43 The appellant did not delete the paragraphs from the statement of claim. She amended it, however, to include in paras 3A and 4A as facts on which she relied that it had been “certified” by the letter of 21 April 2006 that Mr Day’s death was caused by him being hurt on duty and that, by the letter of 8 March 2007, the respondent informed her that the Commissioner’s decision and its decision to pay the ordinary pension “were based on the deceased’s death being caused by the ‘archiving duties’ … “. Paragraph 18 was amended to allege that due to the unusual risks Mr Day suffered respiratory infection caused or substantially contributed to by the filthy conditions in which he worked when undertaking archiving duties in the garage, and new paragraphs alleged -

“18A. The Deceased’s death was caused by his work undertaking archiving duties in covert premises.
18B. During the course of the archiving duties the Deceased was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed to in the course of their employment.
18C. The risks to which the Deceased was exposed during the course of the archiving duties in covert premises included the risk of contracting serious lung diseases leading to death.”

44 The respondent was given leave to amend its defence in consequence of these amendments. An amended defence was not filed, but the intended amendments as explained to the trial judge were traverses of paras 4A, 18A, 18B and 18C, with the existing traverse of para 18 applying to the amended paragraph.

45 Although paras 6, 7, 8 and 9 were not deleted, the effect of these amendments was effectively to confine the appellant’s case to injury and consequent death from the archiving duties. The appellant submitted on appeal that, by the letter of 8 March 2007, the respondent accepted for the purposes of the application that the decision that Mr Day’s death was caused by him being hurt on duty was by reason of his involvement in the archiving duties.

46 It appears that the respondent was asked to review its determination, and that on 24 April 2007 the Commissioner wrote to the Committee in support of a review. The letter was not in evidence. A review was not undertaken.

47 The Commissioner again wrote to the Committee again on or about 25 July 2007, conveying “detailed information” he had obtained and submitting it in support of a review of the determination. The Commissioner said that “it was this information which I relied upon (in part) in classifying the late Detective Inspector Day’s death as duty related in 2004”. The letter was lengthy: the information covered both Mr Day’s workload in managing a number of taskforces and his involvement in the transfer of the records. The Commissioner expressed the views that the special risks to which Mr Day was subject “included the demanding, high pressure investigative work involved in” the taskforces and that it was “relevant” that the archiving duties were performed without the protective equipment “which one would expect a professional archivist would utilise if forced to work in such unhealthy conditions”.

48 In concluding, the Commissioner said that he “support[ed] a review of the decision based upon the information contained herein”, but that -

“ … in making these observations, I am simply trying to clarify for PSAC the issues that were considered by me when determining whether the late Detective Inspector Day’s death was duty related and I understand it is for PSAC to determine the degree (if any) of any special risk involved.”

49 This was the letter referred to in para (c) of ground of appeal 2. It was admitted after objection as “probably a business record of [the Commissioner]” and subject to further submissions. There do not appear to have been further submissions directed to its status or the use to which it could be put. Even if admitted as evidence of why the Commissioner decided that Mr Day’s death was caused by him being hurt on duty, what was said in the letter had no statutory effect and did not command the “full and conclusive effect” asserted in the ground of appeal; nor was it confined to the archiving duties or a clear attribution of Mr Day’s injury to the archiving duties.

The course of the proceedings

50 The appellant relied on the respondent’s conduct of the proceedings in the District Court, in addition to the letters of 8 March 2007 and 25 July 2007, for the respondent’s acceptance that the decision that Mr Day’s death was caused by him being hurt on duty was by reason of his involvement in the archiving duties.

51 In opening, counsel for the appellant said that there did not appear to be any dispute that Mr Day’s death was caused by him being hurt on duty, and

“MOSES: Yes. Further, your Honour, as we understand it there appears to be no issue that the deceased’s death and certification as being hurt on duty relates to him undertaking the archiving duties that I’ve referred your Honour to earlier.”

52 The appellant submitted that this was not controverted by counsel for the respondent, but was confirmed in the conduct of the respondent’s case.

53 The respondent did not call any evidence. At the commencement of his oral submissions counsel for the respondent outlined three steps for consideration, being identification of the causative risk, determining whether it would qualify as a risk to which the members of the general workforce were not normally expected to be exposed, and then assessment of where the risk fell on the continuum of extremity of risk. Counsel said -

“It is clear on my submission from the witness statements that are before your Honour and the way the plaintiff has put forward her case that much of what is pleaded in the statement of claim is irrelevant. What is relevant are the archiving duties that were carried out by the deceased prior to his death. The case is rested wholly and solely upon the risks attendant and are pertinent to those archiving duties.”

54 At a later point counsel for the respondent said, in relation to the trial judge’s observation that Mr Day “was taken to hospital because he had clinical and radiological signs of bilateral pneumonia” -

“Yes your Honour. And it can’t be gainsaid that a substantial contributing factor to that must have been the work of the archive [sic]. Now, whether that means a pathogen, whether that means contracting a virus, whether that means an irritant leading to an infection, your Honour, the evidence is to some extent unsatisfactory in that regard, but to some extent your Honour doesn’t need to be troubled by that so much, except insofar as the first step as to what was the causative risk … “.

The trial judge’s reasons

55 The trial judge’s reasons were structured under the headings “Background”, “Mrs Day’s appeal”, “State Super’s defences to Mrs Day’s appeal”, “The evidence in Mrs Day’s appeal”, “The facts” and “Conclusions”.

56 The trial judge said, immediately before the heading “The facts”, “I find the following facts”. After reference to Mr Day’s general medical condition and the culling of the records in the “dusty, dirty, unventilated, uncomfortably warm garage”, the facts were largely an account of the development of Mr Day’s respiratory condition and his hospitalisation, treatment and death, followed by an account of events leading to the Commissioner’s decision that Mr Day’s death was caused by him being hurt on duty and reference to the letters to which I have referred. The facts included, in their chronological place, the terms of the Coroner’s finding as earlier set out in these reasons.

57 Under the heading “Conclusions” her Honour first expressed the view that the risks to which members of the general workforce would normally not be required to be exposed were “the risks causing a member or former member of the police force to be hurt on duty” and the phrase “general workforce” described all workers except members of the police force. Her Honour said that -

“[t]he phrase ‘general workforce’ includes, for example, factory workers, roofers, construction workers in and on old urban buildings, municipal council workers who repair urban roads and footpaths, all of whom are exposed, commonly, to airborne irritants and pathogens.”

58 This was the subject of ground of appeal 1. The appellant submitted that her Honour fell into legal error in her explanation of the words of s 12(1AA)(a)(ii) of the Act concerned with what I will call general workforce risks.

59 Her Honour’s dispositive reasons then were (the persons in paras 58 and 59 were members of the Crime Squad who culled records in the garage) -

“58. Applying the legislation to the facts I find in this appeal, I conclude that, between 15 and 31 October 2003, Mr Day and members of the Crime Squad worked intermittently in the Crime Command’s garage and were exposed to irritants, including dust and dirt, in the garage and on the Crime Squad’s records. The absence of mechanical or fixed ventilation in the garage caused its uncomfortable warmth and the Crime Squad members’ discomfort. The condition of the garage and/or of the records probably played a causative role in Michael Van Eyk’s and John Walker’s sneezing. Constables Thomas and Bagnall were uncomfortable but withstood the potentially irritating effects of their work. The dust and dirt in the garage, on the records and on Mark Conroy’s clothes had no relevant effect on him.
59. Perhaps Mr Day, Stuart Cadden, Paul Giovenali and Linda Howlett were exposed to the same pathogen which caused their feeling ill, sneezing and/or coughing. It is equally possible that their discomfort or malaise was unrelated to the conditions under which they worked in the Crime Command’s garage and was due to other irritants or pathogens.
60. I conclude that, for years prior to October 2003, Mr Day’s immune system and general health were compromised by his psoriatic arthritis, by his rheumatoid arthritis, by his hypertension and by the diverse chemicals he was prescribed to control those conditions. The evidence does not enable one to determine when Mr Day contracted a respiratory infection. The evidence is silent on the infection’s incubation period. No viral or bacterial cause of Mr Day’s respiratory infection or of his pneumonia was ever isolated. He may have contracted his illness outside the Crime Command’s garage.
61. Prior to 14 November 2003, general medical practitioners, pathologists, radiologist, microbiologists, gastroenterologists and specialists in respiratory and infectious diseases at Concord Hospital had the diagnostic assistance of Mr Day’s social and employment history, including his possible exposure to avian faeces or detritus. The proximate cause of Mr Day’s death was his detachment from his supply of oxygen. His diminished immunity to infection and the chronic illnesses, for which he had had years of appropriate treatment, probably played a role in his death.
62. The evidence does not persuade me that Mr Day died because his police duties exposed him to risks which members of the general workforce normally would not be required to be exposed in the course of their employment.
63. For the reasons in his judgment, pursuant to section 21 of the Police Regulation (Superannuation) Act 1906 (NSW), as amended, this Court confirms the decision made by the Police Superannuation Advisory Committee on 30 May 2006.”

Analysis of the reasons

60 From the platform that Mr Day’s death was caused by him having been hurt on duty, and importing from the definition the concept of injury, it was necessary to find his injury, the risks causing the injury to which he was exposed, and then whether the risks were risks to which members of the general workforce would not normally be required to be exposed in the course of their employment; and perhaps then the relationship between the levels of risk.

61 Under the heading “Facts” there were no ultimate findings as to Mr Day’s injury or the risks causing the injury. The facts as found were not there brought to conclusions, and the conclusions were stated under the succeeding heading.

62 As will appear, the trial judge’s view concerning general workforce risks was not determinative in the disposition of the application. Her conclusions, effectively denied that Mr Day’s death was caused by him having been hurt on duty, and were in truth non-findings as to injury and the risks causing the injury.

63 I doubt that in her reference at [61] to the “proximate cause” of Mr Day’s death being his detachment from his supply of oxygen, the trial judge found that the cause of death was unrelated to the condition which caused him to be hospitalised. Such a finding would be quite contrary to the evidence, and the reference to a proximate cause, while in a sense correct, was not an appropriate criterion in relation to the cause of Mr Day’s death.

64 On my understanding of the reasons, while the trial judge was satisfied that Mr Day contracted a respiratory infection, she was not satisfied that it was contracted by reason of the dusty, dirty and otherwise adverse conditions in the garage. Her Honour said at [58] that the conditions only made Constables Thomas and Bagnall uncomfortable and did not affect Mark Conroy. She said at [59] that it was “equally possible” that the discomfort or malaise suffered by Mr Day (amongst others) was unrelated to the conditions in the garage and was due to “other irritants or pathogens”: the comparable possibility is not entirely clear, but must be exposure to irritants or pathogens in the course of the archiving duties. She said at [60] that the evidence did not enable one to determine when Mr Day contracted a respiratory infection. She referred at [60], and again at [61], to compromised immunity and general health, in context as occasion for contracting the infection otherwise than in the course of the archiving duties. With apparent reference to the facts earlier found in relation to the medical investigations and treatment, she said at [60] that no viral or bacterial cause of Mr Day’s respiratory infection or of his pneumonia was ever isolated, with mention at [61] of the extensive attentions of the health professionals. She said bluntly at [60] that Mr Day “may have contracted his illness outside the Crime Command’s garage”.

65 Thus the reason why the trial judge was not persuaded that Mr Day died because his police duties exposed him to risks which members of the general workforce normally would not be required to be exposed to in the course of their employment, as stated in [62], went beyond the risks causing injury to which he was exposed being general workforce risks. The reason was that she was not satisfied that the injury causing Mr Day’s death was suffered in the course of or by reason of the archiving duties or his employment at all.

Grounds of appeal 2 and 2A should be upheld

66 The trial judge’s arrival at her determination was not consistent with the Commissioner’s decision that Mr Day’s death was caused by him being hurt on duty. Although not as to the circumstances, the decision established that the injury causing Mr Day’s death arose out of or in the course of his employment and that his employment was a substantial contributory factor to it; in substance, that it was suffered in the course of and by reason of his police duties, although not necessarily the archiving duties.

67 The respondent submitted that there could be consistency in that Mr Day could have contracted his respiratory infection away from work and suffered exacerbation from the conditions in the garage. The trial judge’s reasons give no hint of such a finding, and are contrary to it: see at [59] stating that the “discomfort or malaise may have been unrelated to the conditions under which they worked in the Crime Command’s garage”.

68 In my opinion, the trial judge erred in point of law in that she failed to give the Commissioner’s decision the effect which in law it had: ground of appeal 2(a).

69 There was, with respect, quite a fundamental departure from the effect of the decision. On the trial judge’s conclusions, the appellant was not entitled even to the 55 per cent annual superannuation allowance determined by the respondent as advised in the letter of 31 May 2006.

70 For reasons given when referring to the letters, I do not accept that there was like error of law in failing to give to the letters of 8 March 2007 and 25 July 2007 “full and conclusive effect” as to the circumstances which Mr Day was hurt on duty and the causal connection with his death: ground of appeal 2(b) and (c).

71 However, having regard to the letters together with the respondent’s conduct of the proceedings in the District Court, in my view the appellant is correct in her submission that the respondent accepted in the proceedings that Mr Day’s involvement in the archiving duties was the occasion for him being hurt on duty. There may be noted in particular counsel’s statements to the trial judge that “it can’t be gainsaid that a substantial contributing factor to that [hospitalisation with pneumonia] must have been the work of the archive”, and to the effect that her Honour need not be particularly troubled in finding the irritant or pathogen “except as insofar as the first step as to what was the causative risk”.

72 The trial judge departed from this common position between the parties in arriving at her determination, without due notice. The failure in procedural fairness may not have been an error of law, but gave a grievance in point of law: ground of appeal 2A.

The result

73 It is not necessary to say anything of the trial judge’s view as to general workforce risks, and inappropriate to do so in the absence of full argument on ground 1.

74 I propose the orders -

1. Appeal allowed.

2. Set aside the order made on 4 July 2008 confirming the Committee’s decision.

3. Remit the matter to the District Court for new determination.

4. Respondent pay the appellant’s costs.

75 IPP JA: I agree with Giles JA.

: The appellant (the widow of a deceased police officer, Detective Inspector Andrew Day) sought a superannuation allowance pursuant to s 12 of the Police Regulation (Superannuation) Act 1906 (NSW) (“the Police Superannuation Act”), the relevant parts of which are set out at [23] above. To make good her claim she needed to establish the following matters:

(1) that her late husband’s death was caused by him being “hurt on duty”;
(2) that she was his “spouse”, and
(3) the authorization of the SAS Trustee Corporation (“the respondent”) for a payment of an amount not exceeding the prescribed rate.

77 The Police Superannuation Act establishes a bifurcated decision-making process. The first matter noted above depends upon a decision by the Commissioner of Police: s 12C(1). On 21 April 2006 the Commissioner decided that Mr Day’s death was caused by him having been hurt on duty. The Commissioner, as required by s 12C(1), notified the respondent of that decision. A decision that the deceased was “hurt on duty” meant that he was injured in circumstances which would, if he had been covered by the Workers Compensation Act 1987 (NSW), have entitled him to compensation under that Act: Police Superannuation Act, s 1(2), hurt on duty. A compensable injury under the Workers Compensation Act is an injury “arising out of or in the course of employment”, to which the employment concerned was “a substantial contributing factor”: Workers Compensation Act, ss 4 and 9A(1). A decision of the Commissioner was a decision that these elements were satisfied.

78 The second matter which the appellant needed to prove was not in dispute; she was the widow of the deceased and thus, in the temporally inapt language of s 12, was his “spouse” and eligible to receive a payment as such.

79 The third matter involved a decision of a different party, namely the respondent, to authorise payment to the appellant “of an annual superannuation allowance” of such amount as the respondent determined, not exceeding the prescribed rate: s 12(1). Because the first two matters were satisfied, the power to authorise payment was engaged. Although the language suggests a degree of discretion as to the amount of the payment, no issue arose in that respect, the respondent being content to authorise payment of the full amount at the prescribed rate.

80 In the case of death, the prescribed rate involved two elements. The first was an amount of 55% of the “attributed salary of office of the deceased”: sub-par (i) of s 12(1AA)(a). The respondent authorised payment of that amount. The second limb authorised an increment of an additional 7.5% of the attributed salary, if the respondent were satisfied that “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”: sub-par (ii). The respondent was not so satisfied and hence declined to authorise payment of the additional increment.

81 The appellant was a person aggrieved by this decision of the respondent and exercised her right to apply to the District Court for a determination in relation to that decision: Police Superannuation Act, s 21. In exercise of that jurisdiction, the District Court was required to make its own factual assessment of the nature of the risks and determine whether it was satisfied in accordance with par (ii). On 4 July 2008 O’Toole DCJ handed down judgment concluding that she was not so satisfied and confirming the decision of the respondent, pursuant to s 21(4)(a).

82 The jurisdiction being exercised by the District Court was that conferred on it by the Compensation Court Repeal Act 2002 (NSW) and is described as “residual jurisdiction”: District Court Act 1973 (NSW), s 142G. Section 142N provides:

“ 142N Appeal to Court of Appeal on question of law
(1) If a party to any proceedings before the Court in its residual jurisdiction is aggrieved by an award of the Court in point of law or on a question as to the admission or rejection of evidence, that party may appeal to the Court of Appeal.
…
(4) The following appeals under this section may be made only by leave of the Court of Appeal:
(a) an appeal from an interlocutory decision,
(b) an appeal from a decision as to costs only,
(c) an appeal from a final decision or award, other than an appeal that involves (directly or indirectly) a claim for, or a question relating to, an amount of $20,000 or more,
(d) an appeal from a decision or award made with the consent of the parties.”

83 It was not in dispute that the appellant was a party to proceedings before the District Court and was aggrieved by the determination of that Court. The term “award” in s 142N(1) is defined to include “interim award, order, decision, determination, ruling and direction”: s 142M(1). The range of decisions which can potentially be the subject of appeal may be inferred from the circumstances identified in s 142N(4) in which leave is required.

84 The notice of appeal filed for the appellant purported to invoke the jurisdiction of this Court under s 127 of the District Court Act, but was in error in that respect. The jurisdiction invoked was under s 142N. Also relevant to this Court’s jurisdiction was s 142J which provides:

“ 142J Decisions of Court when exercising residual jurisdiction
(1) The following apply in the exercise of the Court’s residual jurisdiction:
(a) a decision of the Court in any matter is to be on the real merits and justice of the case,
(b) the Court is not bound to follow strict legal precedent,
(c) subject to Subdivision 3:
(i) a decision or proceeding of the Court is not vitiated by reason of any informality or want of form, and
(ii) a decision or proceeding of the Court is not liable to be appealed against, reviewed, quashed or called in question by any court, and
(iii) no proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of any decision or proceeding of the Court relating to, or on the face of the proceedings appearing to relate to, any matter within its residual jurisdiction, and
(iv) the validity of any decision or proceeding of the Court cannot be challenged in any manner.”

85 If it had been necessary for the appellant to invoke the judicial review jurisdiction of this Court under s 69 of the Supreme Court Act 1970 (NSW), it would have been necessary to determine whether that jurisdiction was constrained by the privative provisions of s 142J(1)(c). That in turn might have required consideration of whether the term “decision” extended to a decision which was invalid in the sense that it was beyond the jurisdiction of the Court: see Batterham v QSR Limited [2006] HCA 23; 225 CLR 237 at [25]-[26] (Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ).

86 In any event, s 142J(1)(c) is subject to Subdivision 3, in which is to be found s 142N. The latter provision must be given full effect in its terms, although the scope for identifying error may be limited by pars (a) and (b) of s 142J(1). On the other hand, the appellant must identify an award or decision of the District Court in point of law, as the subject matter of the appeal: Scicluna v NSW Land and Housing Corporation [2008] NSWCA 277; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2009] NSWCA 55; Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138. To determine whether she succeeds in this respect it is necessary to consider the error relied upon.

87 The key passages in the judgment in the District Court are set out at [59] above. It is true that, in the District Court judgment at [62], her Honour expressed a conclusion as to the risks to which the deceased was exposed in terms which reflected that part of the respondent’s decision which was before her for review. However, it is clear from the reasoning at [60] that the appellant had failed at an earlier stage, namely in failing to satisfy the District Court that the “archiving duties” in which the deceased was involved immediately prior to his admission to hospital and death were, in a relevant sense, a cause of his death. Her Honour noted that the deceased “may have contracted his illness outside the Crime Command’s garage”: at [60].

88 The effect of this finding was to reject the decision of the Commissioner that the deceased was hurt on duty and that the injury occurred as a result of the archiving duties. As noted by Giles JA at [35] above, the respondent (or more accurately its delegate) sought advice from the Commissioner as to the basis upon which he had made his decision under s 12C. The effect of the Commissioner’s reply of 11 May 2006 was to note the engagement of the deceased on archiving duties in October 2003, to note that the appellant’s claim was based upon the work being carried out in the archives and the acceptance of that claim by the Commissioner. In the course of the proceedings, the respondent objected to allegations in the pleadings in the District Court suggesting that the injury was caused otherwise than by the archiving duties: at [41] above. Both parties ran the case before the District Court on the basis that the archiving duties were the cause of the deceased being hurt on duty: above, at [45] and [51].

89 As the respondent recognised, the bifurcation of the decision-making power under the Police Superannuation Act presented it with a difficulty. It had no power to determine whether the deceased was hurt on duty, but it was required, for the purposes of forming an opinion relevant to the increment to the allowance, to determine the risks to which the deceased had been exposed (and which had materialised in causing a disease or injury), so as to assess whether they were risks to which members of the general workforce would normally not be required to be exposed in the course of their employment. It clearly does not conform to the purpose underlying the statutory scheme for the respondent to make its assessment on a different basis from that on which the Commissioner reached the antecedent decision that the deceased had been hurt on duty. That decision will be made in the context of a claim; it will therefore reflect the nature of the injury which was the subject of the claim and the circumstances said to give rise to the causal connection with the deceased’s employment. Despite the division of responsibilities, the Commissioner and the Respondent must address the same injury and the same set of circumstances. Those will also define the subject matter of the proceedings in the District Court on an application for a determination in respect of a decision by either the Commissioner or the respondent.

90 The application to the District Court was not concerned with the decision of the Commissioner, which constituted a legal and factual pre-condition to the decision of the respondent which was the subject of the Court proceedings. The notice of appeal in this Court complained that the District Court did not give “full and conclusive effect” to the decision of the Commissioner. There was discussion in the course of argument as to whether the Commissioner’s decision was “binding” on the District Court. However, it was not necessary to seek to characterise the Commissioner’s decision in these terms. Absent an application under s 21, the Commissioner’s decision stood and the Court, like the respondent, was required to address a different question.

91 That question required the Court to identify the risks to which the deceased had been exposed, which materialised in his injury or disease, leading ultimately to his death. It was then required to determine whether those risks were risks to which a member of the general workforce would normally not be required to be exposed. In some cases, those risks may be inherent in the nature of police work, where the duties differ from those of the general workforce. In other cases, of which this may be one, the work may be of a kind which would be encountered by some members of the general workforce, in which case it will be necessary to consider whether the latter would normally be provided with equipment or safe systems of work which were not provided to the police officer.

92 Whilst her Honour accepted that the deceased and other members of the Crime Squad working in the Crime Command’s garage “were exposed to irritants, including dust and dirt”, in the absence of “mechanical or fixed ventilation” which probably caused sneezing on the part of two members, her Honour held that the cause of others (including the deceased) “feeling ill, sneezing and/or coughing” may equally have been “unrelated to the conditions under which they worked” and may equally have been “due to other irritants or pathogens”: at [58] and [59].

93 Because of this approach, her Honour neither identified the risks (because she was not satisfied that any particular risks had materialised in injury or disease), nor did she compare them with those to which members of the general workforce would normally be subject. She thus determined the matter on a basis which was not in issue before her, namely whether the irritants or pathogens in the garage in fact caused the deceased’s injury and death injury.

94 On one approach, the Court’s error may be characterised as a constructive failure to exercise the jurisdiction conferred on the Court pursuant to s 21 of the Police Superannuation Act. On an alternative approach, the error derived from her Honour identifying and deciding a question which was not before her. That was an error in point of law. Because the latter approach is open in the present circumstances, this Court’s jurisdiction under s 142N is properly engaged and the appeal should be allowed.

95 I agree with the orders proposed by Giles JA.

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