Flowers v SAS Trustee Corporation - [2015] NSWDC 275

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Flowers v SAS Trustee Corporation [2015] NSWDC 275
Hearing dates: 27-28 August 2015; 1-4 September 2015
Date of orders: 16 September 2015
Decision date: 16 September 2015
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
Decision of the defendant made 18 March 2014 set aside.

Pursuant to s 10(1A)(b) Police Regulation (Superannuation) Act 1906, plaintiff’s pension entitlement increased to 77.65% of the attributed salary of his office from 17 February 2007 and to 85% of the attributed salary of his office from 3 February 2014.

Defendant to pay plaintiff’s costs.
Increase of the pension granted prior to 3 February 2014 stayed until 6 October 2015.
Catchwords:
POLICE SUPERANNUATION –NATURE OF INFIRMITY – Plaintiff discharged 8 February 1986 with certified infirmities of “Personality Disorder and Recurrent Anxiety Episodes” – Second infirmity accepted as being caused by plaintiff’s being “hurt on duty” (HOD) – Whether that infirmity the same as Post Traumatic Stress Disorder (PTSD) – Aggravation of the infirmity by a workers compensation injury on 20 December 2005 irrelevant –

POLICE SUPERANNUATION - DELAY – Pension increase sought from 17 February 2007 when plaintiff’s last employment ended – Application for increase received by defendant on 28 October 2013 – Plaintiff had been advised of his right to make a claim for an increase in his pension benefit by 29 March 1986 – Delay relied upon by the defendant
POLICE SUPERANNUATION – INCREASE PENSION BENEFIT – QUANTUM – Benefit adjusted for period 17 February 2007 and 2 February 2014 by the ratio between what plaintiff would have earned uninjured (i.e. not HOD) outside the Police Force and what he was earning with his last employer – Benefit from 3 February 2014 awarded on basis of total incapacity – Irrelevant that plaintiff would not have been working in any event – Discretionary considerations all irrelevant under HOD scheme
Legislation Cited: Miscellaneous Acts (Workers Compensation) Amendment Act 1984
Police Regulation (Superannuation) Act 1906
Police Service Regulation 1990
Workers Compensation Act 1926
Workers Compensation Act 1987
Cases Cited: Calman v Commissioner of Police [1999] HCA 60
Calman v Commissioner of Police (1998) 16 NSWCCR 333
Daley v SASTC [2015] NSWDC 183
Gannon v COP (2004) 1 DDCR 380
Lembcke v SASTC [2003] NSWCA 136
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
Poole v SAS Board (2000) 20 NSWCCR 633
Saad v COP (1995) 12 NSWCCR 70
SASTC v Patterson [2010] NSWCA 167
Texts Cited: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (3rd ed 1980, American Psychiatric Publishing).
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders – Text Revision, (4th ed 2000, American Psychiatric Publishing).
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (5th ed 2013, American Psychiatric Publishing).
Dr Selwyn Smith, "When Your Loved One Has Post-Traumatic Stress Disorder", Police News May 2006.
C P Mills, Workers Compensation (New South Wales), (2nd ed 1979, Butterworths)
Furzer Crestani Charted Accountants, Assessment Handbook, October 2012
Category:

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.

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Details

Case: [2015] NSWDC 275
Decision Date: 16 September 2015

CaseChat Overview and Summary

In the matter of Flowers v SAS Trustee Corporation, the plaintiff sought an increase in his superannuation pension, arguing that the defendant had incorrectly calculated the amount owed. The dispute involved the classification of the plaintiff's infirmities, the timing of the application for the pension increase, and the appropriate quantum of the pension benefit. The case was heard and determined by the court.

The primary legal issues revolved around whether the plaintiff's infirmity of "Recurrent Anxiety Episodes" was equivalent to Post Traumatic Stress Disorder (PTSD), the relevance of the aggravation of this infirmity by a workers compensation injury, and the impact of the delay in lodging the application for the pension increase. The court also needed to determine the appropriate quantum of the pension benefit, considering the plaintiff's earning capacity both with and without his infirmities.

The court held that the second infirmity, "Recurrent Anxiety Episodes", was the same as PTSD, and the aggravation of this infirmity by a workers compensation injury was irrelevant. The court further found that the delay in lodging the application for the pension increase was not a valid defence because the plaintiff had been advised of his right to claim an increase in his pension benefit. Regarding the quantum of the pension benefit, the court decided that it should be based on the plaintiff's earning capacity outside the Police Force, adjusted by the ratio of his uninjured earnings to his last employment earnings. The discretionary considerations under the "hurt on duty" scheme were deemed irrelevant.

The court ordered that the decision made by the defendant on 18 March 2014 be set aside. The plaintiff's pension entitlement was increased to 77.65% of the attributed salary of his office from 17 February 2007 and to 85% from 3 February 2014. The defendant was directed to pay the plaintiff's costs. The increase of the pension granted prior to 3 February 2014 was stayed until 6 October 2015.

Orders

Orders of the court

Decision of the defendant made 18 March 2014 set aside.

Pursuant to s 10(1A)(b) Police Regulation (Superannuation) Act 1906, plaintiff’s pension entitlement increased to 77.65% of the attributed salary of his office from 17 February 2007 and to 85% of the attributed salary of his office from 3 February 2014.

Defendant to pay plaintiff’s costs.

Increase of the pension granted prior to 3 February 2014 stayed until 6 October 2015.

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:	Flowers v SAS Trustee Corporation [2015] NSWDC 275
Hearing dates:	27-28 August 2015; 1-4 September 2015
Date of orders:	16 September 2015
Decision date:	16 September 2015
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Decision of the defendant made 18 March 2014 set aside. Pursuant to s 10(1A)(b) Police Regulation (Superannuation) Act 1906, plaintiff’s pension entitlement increased to 77.65% of the attributed salary of his office from 17 February 2007 and to 85% of the attributed salary of his office from 3 February 2014. Defendant to pay plaintiff’s costs. Increase of the pension granted prior to 3 February 2014 stayed until 6 October 2015.
Catchwords:	POLICE SUPERANNUATION –NATURE OF INFIRMITY – Plaintiff discharged 8 February 1986 with certified infirmities of “Personality Disorder and Recurrent Anxiety Episodes” – Second infirmity accepted as being caused by plaintiff’s being “hurt on duty” (HOD) – Whether that infirmity the same as Post Traumatic Stress Disorder (PTSD) – Aggravation of the infirmity by a workers compensation injury on 20 December 2005 irrelevant – POLICE SUPERANNUATION - DELAY – Pension increase sought from 17 February 2007 when plaintiff’s last employment ended – Application for increase received by defendant on 28 October 2013 – Plaintiff had been advised of his right to make a claim for an increase in his pension benefit by 29 March 1986 – Delay relied upon by the defendant POLICE SUPERANNUATION – INCREASE PENSION BENEFIT – QUANTUM – Benefit adjusted for period 17 February 2007 and 2 February 2014 by the ratio between what plaintiff would have earned uninjured (i.e. not HOD) outside the Police Force and what he was earning with his last employer – Benefit from 3 February 2014 awarded on basis of total incapacity – Irrelevant that plaintiff would not have been working in any event – Discretionary considerations all irrelevant under HOD scheme
Legislation Cited:	Miscellaneous Acts (Workers Compensation) Amendment Act 1984 Police Regulation (Superannuation) Act 1906 Police Service Regulation 1990 Workers Compensation Act 1926 Workers Compensation Act 1987
Cases Cited:	Calman v Commissioner of Police [1999] HCA 60 Calman v Commissioner of Police (1998) 16 NSWCCR 333 Daley v SASTC [2015] NSWDC 183 Gannon v COP (2004) 1 DDCR 380 Lembcke v SASTC [2003] NSWCA 136 National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 Poole v SAS Board (2000) 20 NSWCCR 633 Saad v COP (1995) 12 NSWCCR 70 SASTC v Patterson [2010] NSWCA 167
Texts Cited:	American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (3rd ed 1980, American Psychiatric Publishing). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders – Text Revision, (4th ed 2000, American Psychiatric Publishing). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (5th ed 2013, American Psychiatric Publishing). Dr Selwyn Smith, "When Your Loved One Has Post-Traumatic Stress Disorder", Police News May 2006. C P Mills, Workers Compensation (New South Wales), (2nd ed 1979, Butterworths) Furzer Crestani Charted Accountants, Assessment Handbook, October 2012
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