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:

Principal judgment

Parties:

Alan G Flowers (Plaintiff)
SAS Trustee Corporation (Defendant)

Representation:

Counsel:
Mr P O’Rourke (Plaintiff)
Mr T Ower (Defendant)

  Solicitors:
Walter Madden Jenkins (Plaintiff)
Rodney Blume (Defendant)

File Number(s):

RJ462/14

Publication restriction:

No

Judgment

1. HIS HONOUR: The plaintiff is a former sergeant third class of police. He was attested as a probationary constable of police on 26 June 1967 and thereupon became a contributor to the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906 ("the Act"). On 5 February 1986 the Police Medical Board established under the Act certified that the plaintiff was permanently incapable of discharging the duties of his office on account of the infirmities of "Personality Disorder and Recurrent Anxiety Episodes". On 18 February 1986 the Commissioner of Police, acting by an Assistant, directed that the plaintiff be medically discharged from the New South Wales Police Force with effect from 8 February 1986.

2. On 12 March 1986 the then Commissioner of Police, Mr J K Avery, determined that the suffering by the plaintiff of "Recurrent Anxiety Episodes" was occasioned by an injury referred to in s 1(2) of the Act. At the same time the Commissioner of Police determined that the suffering by the plaintiff of "Personality Disorder" was not caused by any such injury. In other words, the Commissioner of Police accepted that the infirmity of "Recurrent Anxiety Episodes" was caused by the plaintiff’s having been hurt on duty.

3. On or shortly before 29 March 1986 the Police Department advised the plaintiff in writing of his entitlement under the Act and pointed out to him the provisions of s 10(1A), as it then was, telling him that the basic pension was 72.75% of the salary of his office, and that he might be entitled to a further pension allowance under s 10(1A)(b) or (c). The letter then invited the plaintiff, if he desired to lodge a claim for an increase in the pension pursuant to either (b) or (c) of subsection (1A), to make an application for increased benefits in writing, supported by a report of a specialist medical practitioner, answering a number of questions which were posed to the plaintiff in the letter. The letter goes on to advise the plaintiff of certain other entitlements he had under the Act, and finally to advise him of the amount of the base annual pension, that is the 72.75% of the salary of his office, that pension then amounting to $787.19 gross per fortnight.

4. The Police Department's letter of or shortly before 29 March 1986, which is the date on which the plaintiff signed it, was clearly the precedent for the letter which the current defendant sends to former members of the New South Wales Police Force who have been granted a pension under the Act after being medically discharged, or who are granted a pension under the Act after being certified sometime after discharge as having sustained an infirmity which was subsequently held to have been caused by the former member’s having been hurt on duty. Despite being advised of his entitlement under s 10(1A) on or shortly before 29 March 1986, the plaintiff did not make any such application until 21 October 2013, which was conveyed to the defendant under cover of a letter of his solicitors, bearing the date 24 October 2013, and was received by the defendant on 28 October 2013.

5. On 18 March 2014 the defendant accepted advice which had been given to it by the Police Superannuation Advisory Committee (PSAC), constituted under s 2H of the Act, to decline the plaintiff's application for a pension increase pursuant to s 10(1A)(b) and/or (c). Being dissatisfied by the decision the plaintiff brings an application to the Court pursuant to s 21 of the Act.

6. This case is not at all straightforward. It was initially listed for hearing for two days, commencing on Thursday, 27 August 2015. It ran on that day and on the following day. I could not return to it on Monday, 31 August 2015 because of other commitments. However, I did return to it on Tuesday, 1 September 2015 and the matter took the rest of that week. In other words, the hearing went for six days rather than two. I could not proceed to give these reasons during the week commencing 7 September 2014 because I was assigned to the Mining List. I have returned to the Bench in this matter today in order to commence giving judgment. The matter is complicated not merely by the length of time since the plaintiff was medically discharged on 8 February 1986, nearly 30 years ago, but by changes in the law which do not appear to affect at all the plaintiff's entitlement. There are a number of legal issues which arise, in particular, the significance of the certificate of the Police Medical Board, which require me to consider in greater detail than one would normally expect, the factual circumstances concerning the plaintiff's initial medical condition and his medical condition in particular since 20 December 2005, when the plaintiff sustained an injury arising out of and in the course of his employment with an employer who engaged the plaintiff some considerable time after he had been medically discharged from the NSW Police Force.

The plaintiff’s background

7. The plaintiff was born on 5 June 1946. He is 69 years old at the present time. The plaintiff attended the J J Cahill Memorial High School, leaving there in 1963 with the Leaving Certificate. The evidence was that he left school with the Intermediate Certificate, but on looking at relevant dates it appears to me to be more likely that he left with the Leaving Certificate in 1963, as is contained in his application under s 10(1A), which forms part of exhibit U. He was employed as a lead moulder with G A Mathews at Botany. I understand that he had been making fishing weights. He was then employed as a storeman with Simon Carves at Botany. On 13 March 1967 he was examined by a medical practitioner with a view to his becoming a probationary constable of police. He was certified as fit for appointment as a probationary constable of police by a Police Medical Officer (PMO).

8. Between 15 May 1967 and 25 June 1967 the plaintiff underwent training at the Police Academy, which was then at Redfern. Exhibit SS says that the plaintiff's categorisation status was a “trainee” and he was appointed as a probationary constable of police on 26 June 1967. It would appear that the plaintiff's first appointment was to the then Phillip Street Police Station and on 28 February 1969 he went to Pymble. On 17 May 1971 he joined the Criminal Investigation Branch as a plainclothes officer, for training as a detective. Exhibit SS tells me that the plaintiff worked for the Criminal Investigation Branch, and in particular 21 Special Squad, from 17 May 1971 until 14 May 1972, and then he was given other criminal investigation work. According to the evidence he was made a detective at Redfern and later went to Kogarah. The plaintiff was to see out his service, essentially, attached to the Kogarah Police Station. After one year as a probationary constable of police the plaintiff was appointed a constable. On 26 June 1972, after five years' service as a constable of police he was made a constable first class. He was appointed as a senior constable on 26 June 1976. He was promoted to the rank of sergeant on 6 July 1984, after a significant event in his police career.

The plaintiff’s injury

9. On Sunday, 17 May 1981 then Detective Senior Constable Flowers was assaulted in the course of his service. He had been assigned to criminal investigation work at Kogarah between 7.30am and 5.30pm. He had been granted extra duty or overtime until 11.30pm on that Sunday evening. The exhibit AA describes the significant event thus:

"About 11.20pm I was proceeding off duty after working extended hours. The station sergeant, Sergeant Third Class Brain, requested that I assist two constables with a violent prisoner in the cell area of police station. I went to the assistance of the constables and received a heavy blow to the right cheek, which resulted in a depressed fracture of the [zygoma] and antrum. As a result of this assault on my person I was admitted to the St George Hospital and kept overnight for observations and X‑rays. I consulted Dr John Cumming, maxillofacial surgeon, and he subsequently operated on my right cheek in the Kogarah Private Hospital on Thursday, 21 May 1981. I was confined in hospital until 22 May 1982."

The violent prisoner was in fact a juvenile. He, on the evidence before me, was 16 years old and "Lebanese". The plaintiff told me that the offender's surname was Helou. It would appear that shortly after the plaintiff was assaulted Helou was released from custody on bail and whilst on bail managed to kill himself in a driving accident, when he rode a motorcycle under the back of a large truck. Exhibit AA tells me that the constables whom the plaintiff sought to assist in dealing with this juvenile offender were Murdock and Kimber.

10. A report of Dr John Cumming of 23 November 1981 tells me that the plaintiff did in fact sustain a fracture of the right maxilla and of the right zygoma, together with a haemorrhage of the right maxillary antrum. Those conditions were diagnosed by Dr Cumming at the St George Hospital. He carried out surgery at the Kogarah Private Hospital on 21 May 1981. He described it as a "right radical antrostomy, elevation and reduction of the right zygoma, an elevation and reduction of the right maxilla". After discharge from the Kogarah Private Hospital the plaintiff saw Dr Cumming in his rooms. On 4 August 1981 the plaintiff was still complaining of pain beneath the right eye, and on 6 August 1981 Dr Cumming performed a right infraorbital nerve neurolysis under a local anaesthetic. X‑rays were taken on 20 August 1981 and was said to show cloudiness of the right maxillary antrum and an infection was suspected and antibiotics were commenced.

11. By 25 August 1981 there was still swelling of the right maxillary region, which was treated by intramuscular injections, and antibiotics were continued as the plaintiff still had pain and swelling the right maxilla. By 28 October 1981 the plaintiff was still coughing up green sputum and antibiotics were continued with an expectorant mixture. By 19 November 1981 Dr Cumming thought there was very little swelling of the maxilla and the plaintiff's chest infection had cleared. In the report of 23 November 1981 Dr Cumming expressed the view that the plaintiff's treatment should be completed by the end of December 1981. However, subsequent reports in exhibit C indicate that the plaintiff was in fact not cleared for full duties, as far as his faciomaxillary injuries were concerned, until 26 May 1983.

SHORT ADJOURNMENT

12. However, the certification of the plaintiff as being fit for his normal duties on 26 May 1983 was somewhat premature. It would appear that after 19 November 1981 the plaintiff returned to work as a detective senior constable performing restricted duties. The plaintiff told me in his evidence‑in‑chief that he was not able to do any "real police work", that he was restricted to doing office duties and that he did not feel "worthwhile" in the performing of his work. By February 1982 however he was certified as being fit for full duties, but very shortly thereafter went on an island cruise by way of leave. In April 1982 he was transferred to Internal Affairs doing restricted duties again. He was involved in investigating complaints made against other members of the Police Force. He was assisting a senior officer, but did not agree with many of the decisions that were made by that senior officer. By this stage the plaintiff was still taking pain killers. He had feelings of tingling and numbness on the right side of his cheek and under his right eye socket. Clearly, the plaintiff was referring to some form of altered sensation. It would appear the plaintiff was also suffering from intermittent infections.

13. Then an event occurred on 28 April 1983 which appears to have been the first of what could be called "a turn", which has been described in various ways from time to time. The report of Dr Cumming of 11 April 1984 says this:

"On 28/4/83 he attended this surgery [at 808 Forest Road, Peakhurst] and stated that he felt 'spaced out' while he was driving his car today. Medication was prescribed and a [cerebral] scan was performed by referral. O.P.G. X‑rays were taken showing that he still had cloudiness in the right antrum and during this period he still complained of facial pain, and although there was no nasal discharge he had difficulty in breathing through the right nostril. As well his right ear felt tender and on examination the right eardrum was hypercapnic.

During this total period [up to 11 April 1984] Mr Alan Flowers has stated that he has felt moody and depressed."

On 9 October 1984 the plaintiff was to see Dr Robert Johnston, a physician. In a report following upon that examination Dr Johnston refers to an episode of "non‑specific dizziness with near collapse in April [1983]", which were similar to attacks which caused the plaintiff to be sent back to see Dr Johnston on 9 October 1984. Apparently Dr Johnston had carried out an assessment of the plaintiff at the end of 1982. This, as far as I can ascertain, that is the event of 28 April 1983, was the first of the "turns" that the plaintiff experienced. In his report of 11 April 1984 Dr Cumming pointed out that the plaintiff continued to receive antibiotics and a drug was prescribed to treat the plaintiff's "moodiness and depression".

14. The plaintiff had, in addition, a complaint of persistent periodic headaches on the right side. Dr Cumming referred the plaintiff to Dr Trevor Williamz, an otorhinolaryngologist, who diagnosed a deviation of the septum of the plaintiff's nose to the right, and performed septoplasty. That appears to have been carried out shortly after 7 March 1984.

15. In his report of 11 April 1984 Dr Cumming went on to state this:

"Detective Alan Flowers is still not well and is having difficulty in coping with his work, and I would recommend that he be relieved of duty for a period of four‑six weeks so that he may recover from all major traumas that he has experienced.

On the writing of this letter Detective Alan Flowers has just collapsed in this surgery, becoming completely emotionally and mentally and physically incapable of working at the present. I have given him a medical certificate for four‑six weeks of complete rest and medication has been prescribed."

The event of 11 April 1984, the plaintiff's collapsing in Dr Cumming's surgery, might be the second, or it might be the third, "turn" which one can discern from the medical evidence. An intervening "turn" may have occurred after the event of 28 April 1983 or later, or in mid to late 1984. The event was when the plaintiff had an episode of anxiety which made him unable to drive his motor vehicle for a brief period of time. That, on the evidence before me, occurred when the plaintiff was driving his vehicle to attend a sergeant's course. The plaintiff was appointed sergeant on 6 July 1984, so a date in April 1984 might be the relevant date. The date April 1983 is stated by Dr Ellard in his report of 29 May 1984, but that may well be a mistake.

16. Following upon the plaintiff's collapse in Dr Cumming's rooms on 11 April 1984 he was referred by Dr Cumming's associate, Dr Catherine Hall, to Dr John Ellard, a psychiatrist. Dr Ellard examined the plaintiff on 25 May 1984. The relevant part of Dr Ellard's history is this:

"Early in 1982 he returned to full duty as a detective, a little improved. In February he went for a cruise and while on it acquired a respiratory infection. His infection returned in full force and he was off duty until the end of March. When he returned to duty he was placed in the Police Internal Affairs Branch still receiving antibiotics both orally and intramuscularly. He found the duties there rather stressful and worked on under considerable strain.

At about the same time he had prolonged treatment for allergy which did not help him and generally speaking he went on in an unsatisfactory state until 1983. In the first part of that year his symptoms were present for most of the time and he is beginning to be weighed down by them.

There were two other important considerations. The first is that since there was little for his colleagues to see he was often accused of either malingering or of being weak. These accusations and the general lack of support from his colleagues hurt him deeply. The second important matter is that the person who hit him was aged 16. I understand that he was a large powerful man with a long history of violence but nevertheless this was a great blow to Mr Flower's pride for he had always managed to win through successfully in other encounters in the past.

In April 1983 while attending a course, he had an episode of anxiety which made him unable to drive his vehicle briefly. An EEG was performed at that stage and reported as unstable which did not help.

Then there was conflict with another officer at his workplace and he feels that this was partly due to his own irritability at that time.

In 1984 he went back to duty at Kogarah and in March 1984 he had another operation [the septoplasty] which improved his physical state very considerably. He was so relieved at that that he went back to work after a fortnight which in retrospect he thinks was too soon.

Since April 1984 he has had several episodes in which his emotions have welled out uncontrollably. He cries, trembles and is generally in a state which he finds difficult to accept because of his previous firmness of character. He had such an episode while with me."

The fourth paragraph of that quotation is the one I suspect may represent an incorrect history, in that the driving to the course is likely to have happened in April 1984. There is no suggestion that the plaintiff underwent EEG in April 1983, but I do know such investigations were performed in 1982 and 1984. Dr Ellard in his report of 29 May 1984, following his examination on 25 May 1984, went on to express this opinion:

"I think that Mr Flowers shows a syndrome not infrequently seen when a person with high standards for themselves suffers from an injury which is not visible to others and which causes prolonged and debilitating consequences. It is true of course that the original injury was visible enough but the greater part of the discomfort thereafter left nothing to be seen. In addition to the general erosion caused by such a situation Mr Flowers was much troubled by the attitude of his colleagues and the fact that someone aged 16 had bested him. All these things put together slowly raised his level of anxiety and insecurity and he was unable to contain it when confronted with situations which, stressful in themselves, he had been able to contain before. For example, he was concerned with some armed hold‑ups and had to search homes under anxiety provoking conditions. On another occasion, being driven to a hold‑up at great speed, although he had great trust in the driver driving him, nevertheless his anxiety overcame him.

I think that the important thing to do at the moment is to help Mr Flowers to get in touch with and deal with the very strong feelings which are contained with him. It is necessary to do this very soon and intensively so that these symptoms do not become chronic and unshiftable. He feels the same and if all goes well he should be admitted to the Clinic for a brief period so that we can work intensively upon his symptoms."

17. The "Clinic" referred to in that is clearly a reference to the Northside Clinic at which Dr Ellard was a regular practitioner. The plaintiff was admitted to the Northside Clinic on 28 May 1984 and remained an inpatient until 15 June 1984. During that period he was under the care of Dr Michael Diamond. Dr Diamond in his report of 22 June 1984 referred to both uncontrollable anxiety and periods of depression, which had "steadily built up since he was assaulted in 1984".

18. The plaintiff had a further "turn" on 28 September 1984. On that day he was seen at 12.30pm by a Police Medical Officer (PMO). The notes recorded by the PMO are these:

"Seen after attack of dizziness and emotional lability (crying). Restless sleep last night, dreaming about work. On restricted duties - involved in transfer of officers - has difficulty in detaching himself from the personal problems of other people's transfers. Claims high work output (partly of his own choosing), unable to put a job down until it's finished. Domestic situation satisfactory. Not on medication for anxiety (he is on erthromycin for chronic sinus complaint). Will contact his psychiatrist Dr Diamond today. Off work remainder [of] day. Wait and see how he feels for next week."

19. In October 1984 the plaintiff saw Dr Cumming, who in addition to treating the plaintiff for an infection in the right maxillary sinus, also obtained a history of the plaintiff’s feeling "light headed" and having difficulty carrying out his work. On 9 October 1984 the plaintiff saw Dr Johnston, the physician. After referring to the attack of April 1983, Dr Johnston commented upon the plaintiff's history of facial pain and then continued his history thus:

"Apparently he had a series of further near collapses and non‑specific light headedness similar to the previous attack over several days about ten or 12 days ago. The initial one occurred while standing travelling to work, the second later in the same morning and again on the next morning whilst standing. He describes them not as a true vertigo but a feeling of light headedness, floating and as though he is overcome by general weakness without loss of consciousness. They pass off rapidly, being less than a minute. The one he had in April 1983 was while driving."

The doctor went on to comment on the plaintiff's treatment by others, but then made the comment that on the plaintiff's returning to work in August 1984 there was some depression creeping into the plaintiff's condition. The plaintiff had been referred to Dr Johnston by Dr Cumming. Dr Johnston did not think the plaintiff's attacks were caused by any cerebral problem, but were more of an incipient syncope related to "affective changes" or perhaps to significant residual infection and recurrence of facial pain. The reference to "affective changes" is clearly a reference to the insipient syncopes being caused by some psychiatric illness or psychological problem. Dr Johnston rechecked the plaintiff's EEG and nothing had changed since an earlier one and showed nothing other than a constitutional anomaly which would not explain the plaintiff’s condition. Dr Johnston recommended that the plaintiff seek psychiatric care as well as treatment for any local causes for his facial pain. In other words, physically he gave the plaintiff a good bill of health and thought that either Dr Cumming's treatment might cure the "turns", or alternatively that they might be psychiatrically determined.

20. On 21 November 1984 the plaintiff saw a PMO. The PMO took a history of the plaintiff’s still suffering from occasional dizzy spells and the plaintiff told the PMO that he had had one on the previous day, 20 November 1984.

21. In recounting the plaintiff's various symptoms I have adverted to histories which tell me that the plaintiff had moved from restricted duties. The plaintiff told me that after treatment at the Northside Clinic he went on some annual leave and on his return to work was sent to perform restricted duties with the CIB. He was working out of the Chief of Staff's office, assisting the chief of staff in transferring detectives around the State in order to place criminal investigators where they were most needed. The plaintiff said that he thought the Chief of Staff was "a bit of a ditherer" and one must bear in mind what the plaintiff told the PMO on 28 September 1984, which I have earlier cited, of the plaintiff’s being concerned about others being transferred and the effects of such transfers upon their personal and professional lives. On 30 January 1985 a PMO reported that the plaintiff was managing to cope with the restricted duties, although being forbidden to drive departmental vehicles had made life difficult for him. The ban on the plaintiff's driving departmental vehicles had been imposed on 21 November 1984, after the plaintiff had reported dizzy spells to a PMO on that day. On 30 January 1985 the PMO thought that the plaintiff could return to driving departmental vehicles if he had not dizzy spell during the ensuing three months. The plaintiff went on to tell the PMO on 30 January 1985 that he was considering applying to the Police Medical Board, obviously to be medically discharged. The PMO thought on 30 January 1985 that the plaintiff should stay on restricted duties.

The plaintiff’s medical discharge

22. The plaintiff saw the Chief PMO, Dr Vane, on 15 May 1985. The plaintiff told Dr Vane that he felt that he was "finished as a policeman". The plaintiff told Dr Vane that he did not feel that he could confront a violent man again. He told the doctor that doing restricted duties created inner tensions and he felt that he could no longer face restricted duties because it made him "uptight", and when he was uptight he seemed to take out his frustration on his family. The plaintiff told Dr Vane that he was in fact applying for examination by the Police Medical Board. The plaintiff told me that in March 1985 he went on annual leave and never returned to work in the New South Wales Police Force. The plaintiff told me that he felt anxious. He felt that he was crying for no reason at all. He told me that he was spontaneously thinking about this situation, what had brought him down to the position in which he found himself. In essence the plaintiff was complaining that he was unable to pursue his career any further, despite the fact that he had been promoted to sergeant on 6 July 1984, very shortly after his discharge from the Northside Clinic.

23. For the purposes of being examined by the Police Medical Board the plaintiff was sent to see Dr Graeme Robbie, a specialist psychiatrist at Chatswood. Dr Robbie saw the plaintiff on 20 June 1984. Dr Robbie's report is exhibit GG. Dr Robbie's principal report is ten pages long and a supplementary report is two pages long. The supplementary report answers a number of questions, but unfortunately no one has available to him or to it, either the plaintiff or the defendant, the questions which were asked of Dr Robbie by the Police HOD Unit. Early in Dr Robbie's report it is established that the plaintiff felt ashamed that he had been "beaten" or "bested" by the 16 year old juvenile offender who had punched him and caused the damage to his right cheek. That had been a point made earlier by Dr Ellard. The history obtained by Dr Robbie also makes the point made by Dr Ellard that the plaintiff felt that he was not being respected by his fellow officers because what was affecting him could not be seen, and the plaintiff was thought by some to be a "malingerer" or to be "weak". The plaintiff also told Dr Robbie, as he had told Dr Ellard, of suffering from acute anxiety when there were incidents which required him in the course of his work to confront violent situations. During the brief period the plaintiff was back doing the detective's work at Kogarah things were described by the plaintiff to Dr Robbie thus:

"Back at work things were busy, and there were several incidents, involving hold‑ups and chases. Each one produced anxiety. He had been continuing to see Dr Cumming routinely, and only one occasion he burst into tears and found his legs buckling under him. He had handed his gun and handcuffs over immediately. Dr Cumming rang the police station and they came and got him. His legs would not seem to hold him up. He continued crying at the station. It was a most humiliating experience, and now everyone knows about it of course."

Clearly that last piece of history refers to the event of 11 April 1984.

24. Dr Robbie then notes the plaintiff's transfer to both Internal Affairs and CIB Headquarters. The report then comments about the plaintiff's "turns". Dr Robbie interspersed this opinion after describing the history of "turns":

"I do not think his attacks of light‑headiness are serious, but they are probably connected to anxiety. I do not think he gets panics [panic attacks]. He does not have a post‑traumatic stress disorder."

In his quite discursive opinion Dr Robbie said a number of things. Pertinent, however, to the crucial diagnosis is this:

"He is, however, and I'm sure that this is quite genuine, now afraid of violence and of being hit again. I put some questions to him and he was quite definite about them. He would avoid high speed chases, he would avoid potential violence, he would not place himself again in a dangerous circumstance, and he would be quite afraid of violence, both from others and from himself. He thinks in certain circumstances he could even lose control and kill. He does not want to be put in danger again, he does not want to be put in a situation where he might lose control again. I accept all of these things, and that he is no longer suited for the ordinary rough and tumble of station life."

On p 9 of his primary report Dr Robbie expressed the view that the plaintiff should not go back to "station duties" which would now be called “frontline policing”. He went on to state that the plaintiff should not be exposed to jobs which might involve him in violence or danger or leave him in a position where he could be provoked into being violent towards others. Dr Robbie on p 10 of the report ruled out depression, but did diagnose anxiety. He thought that the anxiety only arose in certain situations. He did not categorise that anxiety as a phobia, however. The final paragraph of the doctor's primary report commences thus:

"He will remain apprehensive for himself and concerned about danger. It will probably subside over the years. In ordinary life it should not affect him at all. The real issue is whether his sense of humiliation stays, particularly if he does leave the police force. I cannot make a prediction here. He believes he feels much better and will remain feeling better while he's out of the force, and he said himself he thought he had it solved. However, he wept in front of me quite early in the interview. I do not think he has solved it at all, and I am concerned that he is taking a precipitate action."

Clearly the doctor thought the plaintiff should defer seeking medical discharge. He thought that the position might not be as bad as the plaintiff himself perceived it to be. In his supplementary report the doctor using DSM terminology, diagnosed an "Adjustment Disorder with Anxious Mood". He thought the plaintiff suffered from episodes of frank anxiety in connection with his duties, but he did not believe that there was an "Anxiety State" as such. The next medical evidence before me commences in 2006.

LUNCHEON ADJOURNMENT

The Police Medical Board

25. I cannot use such medical evidence as has been amassed since 20 April 2006 to interpret the certificate of the Police Medical Board of 5 February 1986. The reason why I need to consider the meaning of the certificate of the Police Medical Board of 5 February 1986 is because of the relevant legal principles. The parties were kind enough to provide to me a copy of the Act reprinted as at 29 July 1985. The last amendment incorporated in that reprint was made by Act No. 93 of 1984, Miscellaneous Acts (Workers Compensation) Amendment Act 1984. The relevant date appears in the present case to be either the date of the Police Medical Board's certificate, 5 February 1986, or the date of the plaintiff's discharge, 8 February 1986. The only relevant amendments made between the date of the reprint and the dates here relevant were amendments made by Act No. 211 of 1985, which as I understand it are not at all relevant to the question currently before me. It is clear that the scheme of the Act, as set out in the reprint of 29 July 1985, binds the Court and the parties to the infirmities specified by the certifying authority, here the Police Medical Board. In other words, the principle behind Saad v COP (1995) 12 NSWCCR 70 is applicable to this case. I am bound by the diagnoses made by the Police Medical Board.

26. The Police Medical Board was established under s 15A of the Act. That section and the succeeding section were these:

"Police Medical Board.

15A.

(1) There shall be a Police Medical Board.

(2) The Police Medical Board shall consist of such medical practitioners as are from time to time appointed by the Governor.

(3) The regulations may make provision for or with respect to the Police Medical Board and, in particular, for or with respect to -

(a) the procedure of that Board; and

(b) the examination of members or former members of the police

force for the purposes of this Act.

Medical Examination.

16. Notwithstanding the grant of any superannuation allowance or gratuity under the provisions of this Act the Board may at any time require any retired member of the police force in receipt of such allowance to submit himself for medical examination by 2 members of the Police Medical Board, and upon the certificate of those 2 members of the Police Medical Board to the effect that the incapacity of the said member has ceased the Board may cancel or suspend his pension and require him to serve again in the police force in a rank not lower than the rank he held before this retirement."

The word "Board" referred to in the former s 16 is a reference to the "Police Superannuation Board" constituted under Part II of the Act, as then in force. Since the time of the plaintiff's medical discharge the Police Superannuation Board has been abolished, as has the Police Medical Board. The Police Superannuation Board previously administered the Act. Its role has now been taken over by the current defendant. The role of the Police Medical Board is currently, and has for some considerable time, been taken up by PSAC. Under the current regime, a regime with which this Court is familiar, a member or former member of the Police Force who is aggrieved by a decision of PSAC can apply to the defendant for a determination by its Disputes Committee, and if aggrieved by the determination of the defendant's Disputes Committee can appeal to the Industrial Relations Commission of this State. There was no such appeal process from any decision of the Police Medical Board. It has been submitted by Mr Ower for the defendant and concurred in, I believe, by Mr O'Rourke for the plaintiff, that the only right of appeal from the Police Medical Board would have been to the Supreme Court, either in the exercise of its supervisory jurisdiction or in its review of administrative decisions. In other words, if the plaintiff were aggrieved by the decision of the Police Medical Board, he would have had to make an application to the Supreme Court of New South Wales which would have dealt with it, at that time, in the Administrative Law Division.

27. The plaintiff considered an appeal, but from the decision of the Commissioner of Police. Exhibit 2 is a letter from the plaintiff to the Commissioner of Police dated 30 April 1986, which refers to the Department’s letter of March 1986, and then continues thus:

"I feel that the 'personality disorder' and 'recurrent anxiety episodes' referred to were brought about as a result of the injuries received on duty on 17 May, 1981 and cannot see how these two psychological conditions can be separated.

There was no evidence of personality disorder or anxiety episodes prior to the injuries received on 17 May, 1981.

I have instructed Mr Gervase Liddy of WC Taylor & Scott, solicitors, to act on my behalf and lodge an appeal to the Workers Compensation Court [sic] in relation to your decision as to the reasons for my discharge from the New South Wales Police Service."

Clearly what was considered at that time was not an appeal to the Supreme Court about the diagnosis of "Personality Disorder", but rather of the refusal by the Commissioner of Police to accept the condition of "Personality Disorder" being caused by his having been hurt on duty, which decision could have been the subject of an appeal to the Compensation Court of New South Wales. By letter of 22 July 1986 the plaintiff advised the Commissioner of Police that he had withdrawn his instructions to Messrs WC Taylor & Scott to prosecute an appeal under s 21 of the Act.

The nature of the certified infirmities

28. It is to be noted that the certificate of the Police Medical Board refers to "Personality Disorder" by using capital letters and refers to "Recurrent Anxiety Episodes" again using capital letters. The use of capitals generally indicates a specific DSM diagnosis. However, subsequently in the correspondence to which I have referred each condition is only referred to without capitalisation of the initial letter of each word of each diagnosis. I had reason to discuss inferences to be drawn of the use of specific diagnoses in Gannon v COP (2004) 1 DDCR 380. Commencing at [3] I said this:

“3 On 27 June 2002, the Police Superannuation Advisory Committee (PSAC) established by the Act certified that the plaintiff was incapable of discharging the duties of his office because of the infirmity of “adjustment disorder with anxiety”. That led to the plaintiff's being medically discharged from the NSW Police on 5 July 2002. On that day the defendant, the Commissioner of Police, decided that the suffering by the plaintiff of the infirmity of adjustment disorder with anxiety was not caused by his having been hurt on duty. From that decision of the defendant, the plaintiff brings this appeal pursuant to s 21 of the Act.

4 The first submission raised by the defendant is that, as a matter of law, the Court is not bound by all the implications arising from the certified infirmity. As is fairly typical in these cases, there are a number of differential diagnoses and often one, and sometimes more than one, of those diagnoses becomes the certified infirmity. Some diagnoses suggest the cause of the diagnosed condition itself, that is, suggest the cause of the infirmity. For example, whilst it is not here relevant, a diagnosis of post-traumatic stress disorder implies that the disorder has been induced by trauma. Equally, in the current matter, where the diagnosis is an adjustment disorder, an adjustment disorder is, according to the accepted psychiatric definitions, a condition that has been induced by some psycho-social stressor.

5 There are also a number of psychiatric conditions, the diagnosis of which implies that the condition is inherent, genetic, constitutional, idiopathic—use whatever synonym one wants to describe the same concept. For example, the diagnosis of a personality disorder is the diagnosis of an innate, inherent or constitutional condition, which is unlikely to have been either caused or incited in any way by an external stressor.

6 Likewise, the diagnosis of, for example, major depression is the diagnosis of a neuro-chemical abnormality in the brain which cannot be caused by an external stressor, although most medical practitioners would accept that an external stressor induces the symptoms of the condition in about 40 per cent of cases.

7 Of course, the concept of the diagnosis pointing to the cause of the illness is not limited to psychiatric conditions or infirmities of the mind. It can also apply to infirmities of the body. The diagnosis of boilermaker's deafness or deafness of the like origin, the proper medical diagnosis being sensori-neural deafness, postulates that the deafness has been induced by exposure to acoustic trauma over a period of time, rather than due to any inherent or medical condition such as otosclerosis.

8 Equally, the diagnosis of the condition which is sometimes called repetitive strain injury and sometimes called occupational overuse syndrome, usually in reference to some problem in the upper limbs of the human body, implies that the condition has been induced by repetitive use, for example, of the hands and forearms.

9 The submission that has been made by the defendant is that the Court is not bound to accept that, where the diagnosis implies that the condition is a reactive to an external stressor, such is the case. In the context of workers compensation law, I have held that a medical panel certificate, which is conclusive as to the quantum of deafness, is also conclusive as to the aetiology of that deafness: Smith v Norton Pty Ltd (1995) 13 NSWCCR 277. In so holding, I relied not only on the terms of the appropriate statute but also on what fell from the High Court of Australia in Smith v Mann (1932) 47 CLR 426. There it was pointed out that sometimes the condition of a workman is inseparable from its cause.

10 In Saad v Commissioner of Police (1995) 12 NSWCCR 70, the Court of Appeal was concerned with a decision made by her Honour Judge Truss. In that case, PSAC certified the former policeman as incapable of discharging the duties of his office because of the specified infirmity of “dysthymic disorder and anxiety and depressive state”. The former policeman relied upon a specific event on 2 April 1990 at the Penrith Court complex. Her Honour held that that event induced a post-traumatic stress disorder in the former policeman but that condition was no longer operative when the specified infirmity was certified by PSAC. Her Honour went on to determine whether the dysthymic disorder was the residue of a post-traumatic stress disorder or was a different condition. Her Honour held that it was not the residue of a post-traumatic stress disorder but was in fact a different condition unrelated to the event of 2 April 1990. The former police officer was unsuccessful in his appeal and appealed her Honour's decision to the Court of Appeal. The judgment of the Court was given by Rolfe A-JA with whom Kirby A-CJ and Handley JA concurred.

11 At 75F, Rolfe A-JA said:

‘Her Honour was bound to accept, as she did, that the appellant was suffering from the infirmity.’

12 In discussing the submissions raised by the appellant, his Honour said at 83B:

‘Further these submissions were inconsistent, to a degree, with the submission that her Honour could not go behind the certificate.’

13 Those dicta of Rolfe A-JA are generally taken to mean that the Court is bound by the certified infirmity of body or mind. Such was the view of Wright J in Commissioner of Police v SASTC [2002] NSWIRComm 31 at [28]. Of course, a certificate of PSAC cannot be the same as the certificate of a medical board or medical panel established under workers compensation legislation. The extent to which the Court is bound by the certified infirmity is a matter of interpretation of the Act with which I am currently dealing.

14 Mr Perrignon, for the defendant, has helpfully drawn to my attention the decision of Commissioner of Police v SASTC, which I have just mentioned. His Honour points out that, as a matter of statutory interpretation, the STC (defined in the Act as the SAS Trustee Corporation) is the body which administers the superannuation scheme and the body which essentially is charged with the protection of the revenue of the State. His Honour held that the Commissioner of Police was not involved in that part of the process available to members of the police force under the Act and that the Commissioner's role was to determine whether the certified infirmity was “hurt on duty” or not. The issue before his Honour was whether the Commissioner of Police could appeal from a decision of the Disputes Committee under the Superannuation Administration Act 1996. His Honour held that the Commissioner of Police had no locus standi to do so.

15 Under the Act with which I am dealing, a number of duties and responsibilities are placed upon the STC. PSAC is established by s 2H of the Act and its functions are set out in s 2I. Section 2J provides that the STC may delegate to PSAC any of its functions under the Act. It is common knowledge that the STC has delegated to PSAC the duty and responsibility of certifying members of the police force, or former members of the police force, as being incapable of discharging the duties of their office.

16 PSAC comprises eight members. The Minister administering the Act appoints a chairman and the Minister for Police and Emergency Services nominates one other member. Whether the Minister administering the Act is the Minister for Police and Emergency Services I do not know. Three members of the committee are nominated by the Police Association of New South Wales, that is an industrial body representing the interests of all non-commissioned members of the NSW Police. One person is nominated by the Commissioned Officers' Branch of the Public Service Association of NSW, i.e. the industrial body representing commissioned officers of the NSW Police. One member is nominated by the STC and one member is nominated by the WorkCover Authority.

17 One can see that in this committee of eight members, half the members, namely four, are serving members of the police force nominated by their industrial associations. One could hardly assign to such a motley collection of persons any particular medical expertise. However, the process of certifying an infirmity of mind is not left to the whim of the committee.

18 Section 8 of the Act relates to superannuation pensions for members who are medically unfit but not hurt on duty. Section 8(1) provides:

“A superannuation allowance or gratuity shall not be granted or paid under section 7 or 14 to a member of the police force who:

(a) is discharged after the commencement of the Police Regulation (Superannuation and Appeals) Amendment Act 1973, and

(b) at the time of the member's discharge is under the age of 60 years,

unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from infirmity of body or mind, of discharging the duties of the member's office.”

19 Section 8(3) of the Act provides the following definition for the purpose of the section:

“medical advice means the advice of:

(a) two members of the Police Medical Board, or

(b) any one or more medical practitioners nominated by the STC.”

20 Section 10B of the Act relates to superannuation pensions for disabled members of the Police who are hurt on duty. Again, the STC is required to certify the member to be incapable of discharging the duties of his office “from a specified infirmity of body or mind”. In doing so, the STC must have “regard to medical advice on the condition and fitness for employment of the member”. “Medical advice” when used in s 10B is defined by s 10B(2C) in the same words as are used in s 8(3). In other words, PSAC acting as delegate of the STC cannot act capriciously but must act on medical advice.

21 Having acted on medical advice, one could understand the specified infirmity to be a proper diagnosis of an infirmity of body or mind. When a proper diagnosis is given it appears to me that the Court is bound by that proper diagnosis as the “certified infirmity of body or mind” and cannot go behind the certificate. Essentially what the current defendant asks me to do is to go behind the certificate, contrary to what was said by Rolfe A-JA in Saad v Commissioner of Police.

22 I have had drawn to my attention a decision of Burke J in Ellis v Commissioner of Police. That has been drawn to my attention by a consultant psychologist and not by counsel, neither of whom have been able to provide me with a copy of his Honour's decision. Equally, the District Court of New South Wales is unable to provide me with a copy of his Honour's decision via the internet or at all, because the District Court has not been able to maintain the electronic retrieval information system of the Compensation Court. [1]

1. The case is Garry William Ellis v Commissioner of Police, NSWCC No. 4216/2000, Burke J, 22 October 2001, unreported - Ed.

23 However, it is clear to me from reading what Mr Peters, the consultant psychologist, quotes from Burke J that he is actually quoting his Honour Judge Burke. His Honour's grammar, syntax and verbiage are well known. Mr Peters quotes his Honour as saying this: [2]

“from the viewpoint of this Court there are two irrefragable facts: the appellant suffers chronic depressive disorder and that disorder renders him incapable of performing duty as a police officer. The equivocal issue is the nexus of that condition to the employment. Shortly, was it caused by the conditions or incidents of his employment?

Counsel for the Commissioner accepted this proposition at §§ 3.1 and 3.2 of his written submission though at other stages of the submission that did seem doubtful. However, he raises the question of the reconciliation of the various diagnostic tags adopted by the experts in evidence apparently suggesting that, perhaps, the various doctors are dealing with different illnesses. Whatever diagnostic nomenclature is used it is used to describe the condition of the appellant. As Shakespeare wrote ‘A rose by any other name would smell as sweet’. The appellant suffers a psychiatric illness. Whatever particular name may be given to it by any particular doctor it is still the same illness. PSAC use the term ‘chronic depressive disorder’ and whether others prefer to call it an ‘adjustment disorder with anxious and depressed mood’ or give it some other name it remains the same disorder upon which the Commissioner's decision is based.

24 There is much force in what his Honour said. However, his Honour accepts that it was an irrefragable fact that the appellant was suffering from the chronic depressive disorder. All that his Honour was saying is that when other medical practitioners use a different diagnosis, they are still referring to one psychiatric illness from which the appellant in that case was suffering.

25 There are some cases in which an appellant can be suffering from more than one psychiatric condition. I dealt with such a case in Dive v Commissioner of Police (1997) 15 NSWCCR 366 where two conditions were certified by PSAC and I dealt with each psychiatric condition separately, each having a different aetiology. Sometimes it is common ground that there is more than one psychiatric condition or more than one infirmity. Indeed, Saad's case says that. Sometimes it is common ground that the former member of the Police is suffering from only one condition, although a number of different diagnostic monikers are put upon that condition. That is what Burke J was referring to in Ellis.

26 One need only consider the facts in Commissioner of Police v SASTC to see a common phenomenon. The former member of the Police in that case was a Ms Gitsham. She was initially medically discharged on a count of “abnormal illness behaviour”. She made an application to the STC's Disputes Committee, which issued a further certificate certifying, ‘generalised anxiety disorder, panic disorder with agoraphobia, post-traumatic stress disorder and chronic pain disorder’. Whether that concatenation of diagnoses represents the diagnosis of four conditions or many differential diagnoses of one condition, I do not know. That would be a question of fact to be determined in Ms Gitsham's case. For example, the first three diagnoses referred to in this last example are all examples of anxiety disorders, whilst ‘chronic pain disorder’ is the modern euphemism for the inexplicable, traditionally known as functional overlay, which can refer to anything from frank malingering to gross psychosis.

27 In the current matter there is a certified infirmity of ‘adjustment disorder with anxiety’. I consider myself bound by that diagnosis of the plaintiff's infirmity and I consider myself bound by the implications arising from the use of that formal diagnostic terminology.

28 It is not axiomatic, therefore, that the current plaintiff, or any plaintiff in a similar position, must succeed in an appeal under s 21 of the Act. For example, it would always be open to the defendant to establish some psycho-social stressor other than some incident of a former policeman's work as being the cause of an adjustment disorder. Equally, if the diagnosis were posttraumatic stress disorder, it would be open to the defendant to seek to establish that there was some trauma to which the former member of the Police was exposed which did not arise out of or in the course of the policeman's police service.

29 Equally, if, for example, the diagnosis was of a personality disorder, it would not be open to a plaintiff to seek to establish that his condition was something other than a personality disorder, for example, to try to establish that he is suffering from a posttraumatic stress disorder.”

Reference should also be made to Murray v COP [2004] NSWCA 365; (2004) 2 DDCR 31 (re: PTSD), and to King v COP (2004) 2 DDCR 416 and Moon v COP (2008) 6 DDCR 33 (both re: Major Depression).

2. At [26]-[27] - Ed.

29. It is important to note that in [21] of Gannon I refer to a “proper diagnosis" being given by PSAC. The question currently before me is whether there is any particular significance in the terminology used in the Police Medical Board certificate. I have reached the view that there is no particular "proper diagnosis" referred to in that certificate. For example, DSM III, which was then the relevant Diagnostic and Statistical Manual, discusses a number of "anxiety disorders". The extract of DSM III is exhibit RR. The first paragraph of the chapter is this:

“In this group of disorders anxiety is either the predominant disturbance, as in Panic Disorder and Generalised Anxiety Disorder, or anxiety is experienced if the individual attempts to master the symptoms, as in confronting the dreaded object or situation in a Phobic Disorder or resisting the obsessions or compulsions in Obsessive Compulsive Disorder. Diagnoses of an Anxiety Disorder is not made if the anxiety is due to another disorder, such as Schizophrenia, and Affective Disorders, or an Organic Mental Disorder."

The chapter goes on to discuss Agoraphobia, Social Phobia, Simple Phobia, Panic Disorder, Generalised Anxiety Disorder, Obsessive Compulsive Disorder, Post‑traumatic Stress Disorder and finally refers to Atypical Anxiety Disorder. The work states that that category ought not be used when the individual appeared to have an Anxiety Disorder that did not meet the criteria for any of the previously specified conditions. In other words, according to DSM III "recurrent anxiety episodes" is not a formal diagnosis falling within the taxonomy of DSM.

30. Likewise DSM III considers Personality Disorders. It lists a large number of personality disorders. They are: Paranoid Personality Disorder, Schizoid Personality Disorder, Schizotypal Personality Disorder, Histrionic Personality Disorder, Narcissistic Personality Disorder, Antisocial Personality Disorder, Borderline Personality Disorder, Avoidant Personality Disorder, Dependent Personality Disorder, Compulsive Personality Disorder, Passive‑Aggressive Personality Disorder and then contains this heading "Atypical, Mixed, or Other Personality Disorder", and contains this matter:

"If an individual qualifies for any of the specific Personality Disorders, that category should be noted even if some features from other categories are present. For example, an individual who fits the description of Compulsive Personality Disorder should be given that diagnosis even if some mild dependent or paranoid features are present.

When an individual qualifies for two or more Personality Disorders, multiple diagnoses should be made.

Atypical Personality Disorder should be used when the clinician judges that a "Personality Disorder" is present but there is insufficient information to make a more specific designation.

Mixed Personality Disorder should be used when the individual has a Personality Disorder that involves features from several of the specific Personality Disorders, but does not meet the criteria for any one Personality Disorder.

Other Personality Disorder should be used when the clinician judges that a specific Personality Disorder is not included in this classification is appropriate, such as Masochistic, Impulsive or Immature Personality Disorder. In such instances the clinician should record the specific Other Personality Disorder, using the 301.89 code."

It can be seen, therefore, that according to DSM III there is a large number of personality disorders and a taxonomy for stating what the appropriate personality disorders is, but none is stated in the certificate of the Police Medical Board. In other words, the Police Medical Board was not using the taxonomy of DSM III when it assigned to the plaintiff the infirmity of "Personality Disorder".

31. There are a number of things which should be considered. One is: whence came the diagnosis "Personality Disorder"? The only medical evidence which hints at such a diagnosis is the report of Dr Michael Diamond of 7 May 1985, addressed to Dr Vane, the Chief PMO. In that report Dr Diamond expressed this opinion:

"I support Sergeant Flowers' decision to seek discharge from the NSW Police Force on the grounds of illness.

Since he was assaulted he has lost his self‑confidence and his dignity. He has developed a chronic anxiety state with phobic features which has recurred each time he has returned to work despite a degree of recovery while he has been off work.

Despite seeking transfer to a less stressful job, in a clerical department, his daily involvement with police work has prevented recovery. Ongoing duties as a policeman constitute repeated overwhelming experiences which serve to reinforce his anxiety and his phobias. In my view given his brittle personality structure, these problems will not recover adequately while he continues in the Police Force."

With great respect it appears to me that whoever the two members of the Police Medical Board were, they thought that the reference by Dr Diamond to a "brittle personality structure" was perhaps a diagnosis by him of some form of Personality Disorder. Equally, the members of the Police Medical Panel may have made that diagnosis themselves. However, they clearly have not used the DSM III taxonomy.

32. Doing the best I can, it appears to me that the Police Medical Board were of the view that the plaintiff's "Recurrent Anxiety Episodes" were episodes of anxiety precipitated by the plaintiff’s being exposed to aspects of police work which historically were causing him anxiety attacks. However, it is clear to me that, by using the terminology "Recurrent Anxiety Episodes" the Police Medical Board was not certifying any particular psychiatric illness, or any specific psychiatric infirmity, that could be given a formal diagnostic moniker.

33. Since in more recent times the plaintiff has been diagnosed as having Post‑traumatic Stress Disorder (PTSD) it is important to note how that name has remained, but the diagnostic criteria of it have changed. Exhibit OO is an extract from DSM III providing the diagnostic criteria for PTSD. The first two paragraphs of those criteria are these:

"Essential Feature. Characteristic symptoms following a psychologically distressing event that is outside the range of usual human experience. The original stressor is usually experienced with intense fear, terror, and/or helplessness.

The precipitating stressor must not be one which is usually well tolerated by most other members of the cultural group (eg, death of a loved one, ordinary traffic accident). Post‑traumatic Stress Disorder need not develop in every victim. Traumas may be experienced alone, eg, rape, severe physical assault) or in groups (eg, military combat, unusually serious automobile accidents). The stressor may arise from natural, accidental, or purposeful events."

It can be seen that the assault upon the plaintiff by the juvenile offender on the 17 May 1981 was not a stressor which engendered in him intense fear or terror and/or a feeling of helplessness. Exhibit QQ is the discussion in DSM IV of PTSD. The opening diagnostic criteria according to this version of DSM are these:

"The person has been exposed to a traumatic event in which both of the following were present:

(1) the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others

(2) the person's response involved intense fear, helplessness or horror."

According to DSM 5 the first set of diagnostic criteria are these:

"Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:

(1) directly experiencing the traumatic event(s),

(2) witnessing, in person, the event(s) as it occurred to others,

(3) learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental,

(4) experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (eg, first responders collecting human remains; police officers repeatedly exposed to details of child abuse)."

In the commentary following the formal diagnostic criteria it is specifically stated that, "Emotional reactions to the traumatic event, for example, fear, helplessness and horror are no longer part of Criterion A." In other words, DSM 5 has removed the requirement contained in DSM III and DSM IV that the person's response must involve intense fear, helplessness, horror or terror. It is clear that Dr Robbie did not believe the plaintiff to be suffering from PTSD when he saw the plaintiff on 20 June 1985, but that does not mean that subsequently that diagnosis could not be ascribed or assigned to the plaintiff's condition, once the relevant diagnostic criteria had changed. Furthermore, repeated work in this List tells me that not all psychiatrists adhere to formal DSM criteria at any particular time.

34. To put it shortly, it appears to me to be open to me as the tribunal of fact to determine that what the Police Medical Board described as "Recurrent Anxiety Episodes" might be capable of being categorised more recently as "PTSD", as has occurred in the current case. However, before considering that further I need to consider further facts.

Post-discharge work

35. The plaintiff told me in his evidence‑in‑chief that after his medical discharge on 8 February 1986 he remained without work for approximately 12 months. He told me that in February 1987 he found work. Initially the work was part time. It was as a private inquiry agent. He told me that he was doing insurance investigations. He told me that he went on to carry out some criminal investigations, such as investigations into arson and sexual assaults. He also told me that he performed some internal industrial investigations, such as investigating sabotage to equipment in work production areas. As a result of his performing work as a private inquiry agent he formed a company called Arrow Investigations Pty Ltd. As part of that work he obtained security work, that is work providing security, in particular to Grace Bros in its city store. That aspect of his work overtook the earlier work of Arrow Investigations Pty Ltd. It grew prodigiously. The plaintiff told me that he not only worked for Grace Bros in the city, but he expanded his work to certain metropolitan stores, as well as to Grace Bros head office. He also moved into providing security work at Kmart stores and at one stage he had 140 employees.

36. In Exhibit U, the plaintiff's application to the defendant under s 10(1A) of the Act, the plaintiff stated that between about 1987 and about 1995 he and his wife operated a private inquiry and retail security business under the name of Arrow Investigations Pty Ltd. Various histories of this work have been given by the plaintiff. The first is contained in a report of Dr Selwyn Smith of 17 July 2006. However, Dr Smith has made a chronological error which I will correct in quoting by inserting in square brackets the dates which clearly were intended to be conveyed:

"In February 1986 Mr Flowers was discharged from the NSW Police Service with Anxiety and Depression. He was diagnosed with anxiety and depression.

In June 1986 Mr Flowers commenced part‑time work in a self‑employed capacity. He undertook private inquiries and formed Arrow Investigations Pty Ltd. The following year in 1987 he commenced commercial retail security operations employing security personnel. He built up the business in a partnership capacity with former police colleagues.

In [1995] Mr Flowers was forced to relinquish his side of the business. He had experienced elevated anxiety. He thought this was linked to the management of 140 casual employees. He was also experiencing unusual thoughts about his police service and ruminating upon his previous performance. The former business Arrow Investigations Pty Ltd was also closed."

The history recorded by Dr Selwyn Smith goes on to state the plaintiff's next job commenced in March 1987, but again the doctor appears to be a decade out with his dating.

37. The plaintiff was examined by Dr Peter Anderson for the NSW Police Force Hurt on Duty Unit on 22 February 2007. The relevant part of Dr Anderson's history is this:

"After leaving the Police Mr Flowers took on investigation work. He did not have a trade to fall back on. He provided security for retail stores, including Grace Bros. At one time he employed 140 people on a casual basis. Most of his business came from the one source, which was problematic in terms of slow payment of accounts. He worked very hard. He felt he coped reasonably well doing this work, which came easily to him in view of his experience as a police officer. He did not do any work which involved personal threats. Essentially he was the Manager.

He found the business was not viable when there were WorkCover changes and [he] decided to pack up the business."

In a letter of 13 May 2013 the plaintiff's then treating general practitioner, Dr Paul Schacher of Engadine, recorded this about his work in the security business:

"Private investigation work .. (not risky) then ran and owned .. security operations Private Business [.] 140 casual workers plus some actual security work himself. All the Grace Bros stores, lots of Kmart stores [.] Patient was on 24/7 call three years 1987 to 1990. 'Got too much for me'. Business partner. GBs. Patient was under financial stress [.] 480K in [the] red."

The plaintiff's oral evidence described his being, at least towards the end of his security business time, in partnership with another former policeman who had his own business and they appear to have merged. What became clear as the evidence unfolded is that the casual security employees were considered to be "subcontractors", but when they were more properly categorised as "workers" he was given a large bill by a workers compensation insurer, which effectively forced him out of the business and he had handed over the business to his "partner" or business associate. There is no medical evidence that the plaintiff had any particular medical or psychological problems at the time that he was running this business, or at the time he was forced to give it up.

ADJOURNED PART HEARD TO TUESDAY 15 SEPTEMBER 2015

38. Having given up the business that he had providing commercial security, the plaintiff was offered a position by a colleague in his Apex Club. The colleague was involved with SLAS Limited, which traded as Civic Residential Services. The plaintiff took up this position, he told me, eight months after stopping his security business. Civic Residential Services provided accommodation and assistance to the mildly intellectually disabled and the mildly psychologically disabled. These were adults. They might be described, as the plaintiff described them, as adults with a disability. The plaintiff found this work rewarding and satisfying. The residences that were provided by Civic Residential Services needed maintenance and upkeep. The plaintiff described his employer's properties as being "overgrown". He decided to form a team to provide external maintenance for these properties. The team was of adults with disabilities whom he would train to work together to maintain the grounds of the residences. That became a full-time job. Initially there were seven properties, but eventually he was catering for about 20 properties maintained by Civic Residential Services, and also his team contracted to provide similar services to between 20 and 25 private residences which were owned by the elderly or those unable to maintain the grounds of their own homes.

39. He brought to that work his experience in policing. He had learned how to handle people and how to control situations in which others were working. Sometimes the adults with disabilities were aggressive towards each other, and sometimes they developed jealousies of each other. The plaintiff learned to cope with those problems, and indeed managed them, to keep the maintenance team working together successfully.

Injury on 20 December 2005

40. The plaintiff did this work until he was involved in an accident which caused him personal injury. Exhibit 4 is a claim for workers compensation made by the plaintiff on SLAS Limited and its insurer QBE. Under the heading "What Happened" the plaintiff provided this detail:

"On or about 20 December 2005 whilst carrying out property maintenance duties, i.e. lawn mowing, brush cutting, tree/shrub trimming, experienced pain in the lower right side back which increased in intensity. Suspecting kidney condition - consulted after hours GP. After intensive testing/condition found to be muscular/skeletal. Referred for physiotherapy."

The doctor which the plaintiff consulted was Dr Schacher at Engadine. The same claim for compensation disclosed that the plaintiff had suffered four earlier injuries in the course of his employment with SLAS Limited. The first was on 16 January 2002 when he had pain in his left arm, upper back and neck. The second was on 31 October 2002 when he had muscular pain in the right rib area. The third was on 24 June 2004 when he had experienced pain on the left side of his lower back. The fourth injury was on 13 December 2005 when he noticed a trigger finger on his right hand. That clearly was shortly before the event of 20 December 2005 and must have been extremely minor as it is not further mentioned.

41. It appears that the plaintiff went off work, or perhaps did not return to work, in January 2006. The plaintiff told me in his oral evidence, as is disclosed in the claim form, that he initially thought he had a kidney stone, and there was ultrasound testing which excluded that diagnosis. It would appear that the pain the plaintiff felt in his loins could be referrable to either a rib cartilage injury or a back injury. The pain was quite debilitating. The plaintiff appears to have suffered from a resulting depression. On 20 April 2006 Dr Schacher wrote a referral letter to Dr Selwyn Smith at his rooms in Miranda. Dr Schacher's referral letter commences thus:

"Thank you for seeing Mr Alan Flowers, age 59 years. Please assist in choice of medications et cetera to assist his depression/adjustment disorder related directly to incapacity following work related injury. Pain has continued as further facet/costal nerve blocks are considered. Tramadol drowsiness[.] Avanza unacceptable drowsiness. Cipramil also but I am persevering slowly with this. I would like to employ the analgesic effects Tryptanol but anticipate it may not be tolerated in side effects given sensitivity to other medications."

The doctor then gives a summary of the plaintiff's medical history as he knew it then to be. That medical history commences in 2000 with a mention of kidney stones. It also records that in March 2006 there were injections into the costo-vertebral joints which eventually were providing no assistance. The referral letter refers to an event on 6 April 2006 when the plaintiff experienced "hot flushes" which Dr Schacher believed were “stress” related. It is clear to me that Dr Schacher was then of the view that the plaintiff's psychiatric problem was caused by the work injury of 20 December 2005.

The referral to Dr Selwyn Smith

42. Apparently arrangements were made for the plaintiff to see one of Dr Selwyn Smith's colleagues at Miranda. There is a referral letter of 8 May 2006 addressed to Dr Christopher McDowell at the same address as Dr Selwyn Smith in Miranda. In that letter of 8 May 2006 Dr Schacher records that he had commenced treating the plaintiff with Neurontin, which was causing drowsiness as well as prescribing Cipramil, and there was a problem with nausea. There is in the documentation tendered a further referral letter addressed to Dr Selwyn Smith, bearing like the first referral letter the date 20 April 2006, but it is clear to me that it was in fact dictated on 15 May 2006. The additional material contained in the letter dictated on 15 May 2006 is this:

"He notes that he has PTSD after reading your article in police magazine[.]. Cipramil is assisting, physiotherapy and Neurontin also helps[sic] pain[.] 4pm same day 15/5/06. Alan phoned me just now. He is hyperventilating/anxious state[.] Settled by the time the taxi I arranged arrived. Numerous triggers including reading Dr Smith's article on PTSD and intense physio and acupuncture session, various anniversaries are part. Major injuries as policemen necessitating Northside Clinic in 1985 and leaving Police Force."

The final sentence in this communication refers to the doctor increasing the dosage of Cipramil.

43. An extract from "Police News" of May 2006 is exhibit W. It is written by Dr Selwyn Smith. The article is headed, "When Your Loved One Has Post-Traumatic Stress Disorder". There is a subsidiary heading, "When a police officer experiences Post-Traumatic Stress Disorder it often has a profound impact on the entire family." Amongst other things, the article tells the reader what are the symptoms of PTSD. It appears that upon reading that article the plaintiff self-diagnosed PTSD.

44. The plaintiff eventually saw Dr Selwyn Smith on 24 May 2006 and not Dr Christopher McDowell. Dr Smith's letter to Dr Schacher of 26 May 2006 following upon his examination of the plaintiff on 24 May 2006 is brief. Dr Selwyn Smith was led to believe, or himself formed the opinion, that when the plaintiff was medically discharged from the NSW Police Force, he was discharged with a diagnosis of Adjustment Disorder. After briefly commenting upon the plaintiff's history up until February 1986 Dr Selwyn Smith went on to say this:

"To Alan's concern he was never diagnosed with Post-Traumatic Stress Disorder. He was referred to Dr Dyball who labelled him with a personality disorder. He was subsequently discharged with no recognition of his hurt on duty condition."

There are subsequent reiterations of the statement that the plaintiff had been seen by the late Dr Kenneth Henry Dyball, who had diagnosed a "personality disorder". There is no evidence that the plaintiff in fact saw the late Dr Dyball, and that appears to be highly likely, and I find as a fact on the balance of probabilities, that the reference to Dr Dyball is a mis-reference to Dr Diamond, who raised, as I pointed out yesterday, the problem with the plaintiff's personality.

45. It would appear that as at 24 May 2006 Dr Selwyn Smith was unaware that the Commissioner of Police had accepted that the suffering by the plaintiff of "recurrent anxiety episodes" was caused by the plaintiff's having been hurt on duty. Dr Smith recommended treatment at the St John of God Hospital, Richmond, the treatment being to attend the PTSD programme. The plaintiff was admitted to the St John of God Hospital at Richmond on 13 June 2006 and remained an inpatient until 22 July 2006, although he was permitted from time to time to leave the hospital. The admission assessment made by Olive Feebrey indicates that the plaintiff's mood was one of frustration from back pain which was causing anxiety. The plaintiff's long-term and short-term memory were both "very good" and the plaintiff's insight and judgment were also "very good". Under the heading, "Sleep Pattern" Ms Feebrey, or perhaps Dr Feebrey, inserted this matter, "About 5-6 hours' sleep - violent dream/flashbacks." The word "flashbacks" has been written above the words "violent dream" in the form. Presumably it was written after the matter "violent dream".

46. Shortly before the plaintiff's admission to the hospital at Richmond there was a further communication sent by Dr Schacher to Dr Smith. That bears the date 19 June 2006. It records that on 7 June the plaintiff underwent a stress echocardiogram and Dr Schacher went on to say this:

"I spoke to Rob Smith, cardiologist[.] Says to add aspirin, a statin, and may be a [beta] blocker, but if cardiac symptoms [persist] an angiogram. They can only see him in early July."

It is clear that there was some concern about an irregularity in the plaintiff's cardiac profile.

"Where a member or former member of the Police Force is duly certified under subsection (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

(b) notify the member or former member of that decision.”

In other words, at the relevant time the Commissioner of Police was not required to determine the date of injury. It appears to me, and appeared to counsel, that the decision of the Commissioner of Police of 4 December 2013 was probably made ultra vires. There was no statutory warrant for making that decision at the time that the plaintiff was certified as incapable of discharging the duties of his office by the Police Medical Board, or at the time the Commissioner of Police made his initial decision. However, that problem was solved by the plaintiff's own evidence. He accepted that the only reason he sought medical discharge was because of the effect upon him of the injury of 17 May 1981.

Contrary submission of the Defendant

90. There is one submission that was put to me on behalf of the defendant which I should probably deal with in greater detail. Mr Ower submitted that the "recurrent anxiety episodes" which were certified by the Police Medical Board refers to the type of events, referred to by Dr Graham Robbie in his report of 20 June 1985, which would trigger a recurrent anxiety episode. I need to reiterate what I have already quoted from Dr Robbie's report to put the submission in its proper context. I again refer to what was stated by Dr Robbie on p 6 of his primary report:

"His confidence is down, his ability is down, even his memory is not what it was. He does not feel part of the police force and the police ethic anymore. I am sure he is being quite frank here, but he does not understand that this feeling of his is part of his defences, and not a result of the injury. He is, however, and I'm sure this is quite genuine, now afraid of violence and of being hit again. I put some questions to him and he's quite definite about them. He would avoid high speed chases, he would avoid potential violence, he would place himself again in a dangerous circumstance, and he would be quite afraid of violence, both from others and from himself. He thinks in certain circumstances that he could lose control and kill. He does not want to be put in danger again, he does not want to be put in the situation where he might lose control again. I accept all of these things, and that he is no longer suited for the ordinary rough and tumble of station life. However, it begs the question of the wide range of duties which presumably would be available to a man in his circumstances."

Again, on p 9 of his report Dr Robbie said this:

"He insists he will not be going back to the police force. To be objective, I would agree that he should not go back to station duties, or to any duties that might involve him in violence, danger, or leaving him in a position where he could be provoked to giving violence to others."

On p 10 of his report Dr Robbie said this:

"He is not depressed, and he is not anxious. He looks well, and he knows what he is doing. His problem only arises when he's in certain situations. It is not a phobia, the reaction may be excessive but it is appropriate."

Further, on the same page the doctor said this:

"He will remain apprehensive for himself and concerned about danger. It will probably subside over the years. In ordinary life it should not effect[sic] him at all. The real issue is whether his sense of humiliation stays, particularly if he does leave the police force."

In the supplementary report of 18 July 1985 Dr Robbie said this:

"He has, of course, had episodes of frank anxiety in connection with his duties, but in a sustained sense he does not have an ongoing anxiety state."

91. The submission put by Mr Ower is that the "recurrent anxiety episodes" are the ones described by Dr Robbie, anxiety when faced with violent or dangerous positions whilst being a member of the NSW Police. That submission might be correct, but Dr Robbie was not a member of the Police Medical Board. I can only go on what was actually certified by the Police Medical Board. Furthermore, the evidence before me indicates the "turns" in 1984 and 1985, which were clearly determined by anxiety, were not all precipitated by exposure to a violent or dangerous situation. Those "turns" have recurred since the beginning of 2006 in a variety of circumstances, but on the evidence before me they are still related to the anxiety which results from the injury of 17 May 1981. Of course, the "turns" recently precipitated have been caused by many and varied events but that is because of the aggravation resulting from the injury of 20 December 2005 and the psychological sequelae of that injury.

ADJOURNED TO WEDNESDAY 16 SEPTEMBER 2015

Recapitulation

92. When I adjourned yesterday, I had reached the decision that the plaintiff's psychiatric or psychological condition after 20 December 2005 was the same condition that had been certified by the Police Medical Board on 5 February 1986 and that accepted by the Commissioner of Police as having been caused by the plaintiff's having been hurt on duty, that decision of the Commissioner of Police being made on 12 March 1986. I am acutely aware that the Police Medical Board certified two "infirmities" but only one of those was accepted by the Commissioner of Police as having been caused by the plaintiff's having been hurt on duty. I also adverted to the fact that the fact that the underlying psychological/psychiatric condition being aggravated or made worse by the event of 20 December 2005 and its sequelae was in, accordance with the decision of the High Court of Australia in Calman v Commissioner of Police, irrelevant.

93. As I mentioned at the start of these reasons, the plaintiff made an application dated 21 October 2013 to the defendant for an increase in his pension pursuant to s 10(1A) of the Act. That was forwarded to the defendant under a cover of letter of 24 October 2013 and received by it on 28 October 2013. That application sought an increase in the plaintiff's pension commencing on 1 February 2007 on the basis that he was totally incapacitated for work outside the police force. That is set out on p 2 of the annexure made to the form, the annexure being a full answer to question 28 posed in the form itself. As I pointed out at [60], the date that the plaintiff seeks to have his pension increase is, according to the statement of claim, 17 February 2007 and is linked to the timing of the plaintiff's resignation from SLAS Limited.

94. I have also pointed out that the first expression of total incapacity for all forms of work outside the police force was in Dr Selwyn Smith's medico-legal report of 8 August 2013 and in that report he expressed the view that he had been totally incapacitated for work on the open labour market "from 2006" which can only be of reference to the time Dr Selwyn Smith first examined the plaintiff on 24 May 2006, although the difference between 17 February and 24 May 2006 is of little moment. However, in my earlier reasons I expressed diffidence about the opinion of Dr Selwyn Smith which was based in my view on the doctor's a priori views as to what was wrong with the plaintiff and his either providing or having provided to him an inaccurate history. Bluntly, I believe that Dr Smith's opinions may be partial, that is skewed in favour of the plaintiff. However, I can readily accept that the plaintiff has been totally incapacitated for all forms of work outside the police force since 3 February 2014 when the defendant's own doctor, Dr Peter Whetton accepted that the plaintiff was in fact totally incapacitated for all forms of work outside the police force.

Quantum

95. The question which then arises is what was the plaintiff's incapacity before that time? The inquiry under s 10(1A) is in essence an economic inquiry. Such is authoritatively established in Lembcke v SASTC [2003] NSWCA 136; (2003) 25 NSWCCR 464. The principal judgment in Lembcke was delivered by Santow JA with whom Ipp JA concurred. At [20] Santow JA pointed out that the approach then taken by Curtis CCJ and the approach that I then took were the same in that the incapacity referred to is incapacity in an economic sense.

96. In my view, the best way of approaching the matter is to see what the plaintiff was earning when he worked for SLAS Ltd, what was his economic incapacity on the open labour market up until the time he sustained his back injury on 20 December 2005. Fortunately there is some economic material before me. I know from exhibit KK, wage records relating to the plaintiff during his period of employment with SLAS Ltd, that in the third quarter of 2006 when he was still being paid his full salary, that salary was $1,622.71 per fortnight. That is the sum of $811.35 per week. During the same period average male weekly earnings were $1,147. I know from exhibit NN that the earnings of a sergeant of the police, who would have had the same seniority as the plaintiff, were $1,528 per week.

97. However the economic inquiry under s 10(1A) is not the difference between what the plaintiff would have earned had he remained uninjured in the police force and what he is actually earning outside the police force but what he would have been earning outside the police force but for injury and what he is capable of earning outside the police force in his injured state. Lembcke is authority for the proposition that I can take into account the plaintiff's actual earnings outside the police force as a relevant guide. At [48] Santow JA said this:

"In determining incapacity, one may draw upon well-established principle that a worker’s actual earnings are likely to be the measure of incapacity for work outside the police force, unless it is established that the worker's actual earnings are not a proper test: see Pira Pty Ltd v Tucker (1996) 14 NSWCCR 26 at 31-32 applying the reasoning in Aitken v Goodyear Tyre and Rubber Co (Australia) Ltd (1945) 46 SR (NSW) 20."

98. I approach this case on the basis that in the third quarter of 2006 the plaintiff's ability to earn on the open labour market in his injured state was $811.35 per week. The question is for me what would the plaintiff have been earning uninjured outside the police force in the third quarter of 2006. As I have said, exhibit LL tells me that average weekly earnings for adult males were at that time $1,147 per week. In my view, however, the plaintiff's ability to earn uninjured would have been greater than that. The closest guide that I can find to what the plaintiff may have been capable of earning uninjured in the third quarter of 2006 is to consider material contained in my copy of the Furzer Crestani handbook which bears date October 2012. That gives me earnings for males employed full time in certain industries in August 2011. At that time the average male weekly earnings were $1,409 per week. At that time professional, scientific and technical services employees were earning $1,780.60 per week. Administrative and support services employees were earning $1,259.20 per week. Employees in public administration and safety were earning $1,429.40 per week. Male employees in education and training working full time were earning $1,486.90 per week. Healthcare and social assistance adult male employees were earning $1,615.20 per week.

99. Uninjured, the plaintiff could not be seen to be an "average" worker. He had obtained skills as an investigator and he clearly had skills in management, leadership, and the direction and control of other workers. He clearly had such skills that he used as a police officer in particular when he was appointed a sergeant of police and he clearly used those skills when he was in self-employment and at one stage was managing some 140 casual employees. The fact the plaintiff could manage a team of workers is evidenced by not only his self-employment but also the work that he did for SLAS although the maintenance team with which he was working was relatively small and one might therefore think of him only as a supervisor. However some of those with whom he was working were difficult people to work with, those with a mental disability. In my view, the plaintiff's skills uninjured would clearly have made him a manager and he would have earned greater than average male weekly earnings in fields such as the provision of technical services, safety and social assistance. Doing the best I can, it appears to me that in the third quarter of 2006 uninjured the plaintiff would have been earning $1,400 per week.

100. The difference between what the plaintiff would have been earning, uninjured, outside the police force ($1,400) and the amount which he would have actually been earning in the employ of SLAS Ltd ($811.35) in the third quarter of 2006 provides me with a ratio. The ratio is 42 per cent. I round that down, lest I be overly generous, to 40 per cent. Forty per cent of the amount under s 10(1A)(b)(i) is 4.9 per cent added to the base pension. That means the plaintiff's pension ought be increased to 77.65 per cent of the attributed salary of his office. In my view, that is the appropriate increase which ought be awarded to the plaintiff between the commencement of his claim, 17 February 2006 and the date when Dr Whetton certified the plaintiff as being totally incapacitated, 3 February 2014 and then the pension ought be increased further to 85 per cent of the attributed salary of the plaintiff's office.

Contrary submission of defendant

101. It is necessary at this time to address certain other submissions that were put to me on behalf of the defendant. The defendant in essence submitted that the plaintiff would not have been working either as a police officer or sergeant of police or indeed in the open labour market at the present time or in times recently past because of his age and that the events of 20 December 2005 might be seen as some supervening "non compensable" incapacity and that in essence the plaintiff would not have been working in the open labour market in any event. In my view, those submissions, although they might be factually accurate, are legally irrelevant. It has been long established in workers’ compensation law that such supervening vicissitudes are irrelevant in determining the amount which a worker is earning or is able to earn. In the second edition of Mills, Workers Compensation (NSW), 1979, Butterworths, the following is stated at p 295:

"Ability to earn is to be determined on the basis of the man's physical capacity as it is left by the results of the injury, and no other matter affecting his ability is to be taken into account; it is not relevant that he has been conscripted into the armed forces at a reduced rate of pay, (Baggs v London Graving Doc Co Ltd [1943] 1KB 291 (CA); Jones v Amalgamated Anthracite Collieries Ltd [1944] AC 14); that as a result of illness unconnected with the employment he is totally unable to work (Harwood v Wyken Colliery Company Ltd [1913] 2KB 158; Metropolitan Coal Co v Duffy (1966) 67 SR (NSW) 163); that he is in prison (McNally v Furness, Withy & Co Ltd [1913] 3KB 605), or that a general state of unemployment makes it impossible for him to find a job; Bevan v Nixon's Navigation Co Ltd [1929] AC44; Hawkins v Australasian United Steam Navigation Co Ltd [1938] 40 WCR 99 [SC]. See generally the discussion of the case by Sugerman and Manning JJ in Steele v Australian Gas Light Co [1963] NSWR 1524 at 1528-9. In that case, their Honours said that a line of cases such as Bromley v Staveley Coal and Iron Co Ltd (1923) 16 BWCC 77 (CA), led to the conclusion that ‘the only supervening causes which will disentitle a partially incapacitated worker to his right to compensation will be that he is "able to earn”, but refuses or fails to do so, or is prevented from so doing by a "self-imposed disability.’"

However, such matters could be taken into account in the exercise of the discretion which s 11(1) of the Workers Compensation Act 1926 provided and the discretion which was once found in s 40 of the Workers Compensation Act 1987. However, that discretion does not apply to s 10(1A) of the Act. That was held by Curtis CCJ in Poole v SAS Board (2000) 20 NSWCCR 633. His Honour said:

“12 I believe it relevant to make further findings. Were this a claim pursuant to s 40 of the Workers Compensation Act 1987, I would have exercised my discretion in order to reduce the compensation which would otherwise be payable. I find it probable that the applicant intended to retire at the expiration of 30 years service in 1989 and that he had purchased a small holding of 5 acres which he intended to transform into an orchard to supplement his retirement income. I also find as a fact that because of the probable onset of further degenerative changes the applicant after about that time would have been unable to engage in the heavy work of a motor mechanic in any event. I also find as a fact that the applicant has been uninterested in exercising such residual earning capacity as he has.

13 In the 13 years since his retirement the applicant has made only one application for work and that was work as a chauffeur. I believe that the applicant at no time intended that he should work beyond the date of his probable retirement in 1989 and I believe that he has suffered no economic loss beyond 1989 when he probably would have retired in any event, then being entitled to payments of 72.75 per cent of his attributed salary of office. In the upshot, all of those considerations are irrelevant.”

What his Honour said was approved by Santow JA in Lembcke at [20] and [21].

102. It has to be borne in mind that as was stated by Ipp JA in Lembcke that s 10(1A) provides for a superannuation allowance which is akin to a pension payment. Pension payments are not ordinarily regarded as compensatory even, for example, when they are conditional upon the beneficiary being blind which was the situation in National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569. Superannuation benefits like pension payments are granted after consideration of the applicant's position and are entirely for the applicant's use and benefit but not to compensate him for loss as was said by Dixon CJ in Espagne at p 574.

Delay

103. The remaining issue, I trust, is delay. I referred yesterday to the inquiries the plaintiff made of the Police Association as to obtaining assistance in order to seek a pension increase in 2007 and the advice that is given at that time and the subsequent clarification of the law in SASTC v Patterson [2010] NSWCA 167 (see pars [61] – [63]). Exhibit 12 is the plaintiff's diary for 2008. It records a number of attendances by the plaintiff upon Mr Mischa Hammond who was then a solicitor at Messrs Walter Madden Jenkins. There was an attendance upon Mr Hammond, whether in person or by telephone I do not know, on 8 July 2008, 11 August 2008, 8 September 2008. The plaintiff was clearly seeking legal advice, presumably about the progress of cases such as that of Patterson before the courts. However, as I pointed out yesterday, the decision of the Court of Appeal in Patterson was delivered on 15 July 2010.

104. On 8 February 2013 the plaintiff sent a letter to the Police Association. A copy of it is exhibit 9. It opens by referring to a telephone conversation with an officer of the Police Associating on that day. The second and third paragraphs of the letter are these:

"I was told that a decision has been made in the Court of Appeal in favour of a former member that there was no time limit to request a pension increase for members who had an entitlement prior to 30 June 2006 and that I should now submit my application in writing.

I also telephoned the office of Walter Madden Jenkins, whom I had consulted in 2007. I would now like to request assistance from that firm again."

The plaintiff then set out his "background" which in essence outlines what had happened to him up until 2006. It is clear that assistance was then given by the Police Association to the plaintiff and that Messrs Walter Madden Jenkins were engaged to provide the plaintiff with legal assistance. Dr Selwyn Smith's report of 8 August 2013 was in response to a letter from Walter Madden Jenkins of 30 July 2013 and it is clear to me that the application dated 21 October 2013 forwarded by Messrs Walter Madden Jenkins to the defendant on 24 October 2013 follows upon the receipt by Messrs Walter Madden Jenkins of Dr Selwyn Smith's primary medico-legal report.

105. I have only recently had cause to review the whole question of "backdating", as it is commonly referred to by practitioners in this List, and the question of delay in Daley v SASTC [2015] NSWDC 183, a judgment given on 28 July. Mr Daley failed in his seeking a "backdating" of his pension because he had not asked the defendant to backdate his pension to a time prior to the receipt by the defendant of his application. The present application does not suffer from that defect. Indeed, I observed during the course of argument that the plaintiff's extended answer to question 28 in the application form bears an uncanny resemblance to the submissions that were put to me in Daley's case by Mr O'Rourke, who also appeared for the plaintiff in the current proceedings. The following is the last part of the plaintiff's extended answer to question 28:

"To the extent that the delay in pursuing the application may be relevant, it should only be in the context of the need to establish, factually, the degree of my incapacity at a relevant time. Nevertheless, I note as follows:

• In mid-2008, I applied to the Police Association of NSW for financial assistance to make this application, but I was too unwell to pursue it;

• On 8 February 2013, I again applied to the Police Association of NSW for financial assistance to make this application;

• On 17 July 2013, I instructed my lawyers to proceed with the application and seek a report from Dr Smith, which they did by letter dated 30 July 2013;

• My lawyers received a report from Dr Smith on 6 September 2013 and provided it to me. The report contained certain factual errors, and Dr Smith provided an amended report to my lawyers on 4 October 2013[.]"

The reference to "mid-2008" in the first of those sub-points might be a reference to mid-2007. It is clear that in 2008 the plaintiff was still seeking advice from Messrs Walter Madden Jenkins. One can understand a delay until the decision of the Court of Appeal in Patterson on 15 July 2010. However, there is then a delay of some two and a half years, but during that period the plaintiff was clearly having a large number of problems which I have sought to outline in my review of the evidence earlier in these reasons and I again point to the plaintiff's treatment in 2012 which commenced in essence from an assessment made on 25 November 2011.

106. Factually, it would have been very easy for the present defendant to have made the sort of economic inquiry which I made earlier and to have ascertained what the plaintiff was actually earning while working for SLAS Ltd and what he might have been able to earn uninjured outside the police force. Equally I have not accepted that the plaintiff should be seen as being totally incapacitated for all forms of work outside the police force until the plaintiff was so certified by the defendant's own doctor on 3 February 2014, after his application had been made to the defendant.

107. Perhaps I should have pointed out, in making the finding as to total incapacity that the opinion of Dr Smith, of the plaintiff’s being in essence totally in capacitated since he first saw the plaintiff on 26 May 2006, does not sit comfortably with the description the plaintiff’s “Current Symptoms” contained in Dr Anderson’s report of 22 February 2007 where Dr Anderson commences his discussion of the plaintiff’s then symptoms as being “much improved as a result of treatment” and of the plaintiff’s sleep being much improved and the plaintiff is no longer having “flashbacks”, although it is difficult, in my view, to ascertain whether the plaintiff has at any time had actual flashbacks. After setting out the plaintiff’s “current symptoms” Dr Anderson set out the plaintiff’s “routine” and in it he states the plaintiff planned to commence some form of voluntary work “when his physical condition permits” indicating that his ability to do some forms of work was not prevented by his psychiatric condition but rather by his physical condition resulting from the injury of 20 December 2005.

108. The medical evidence before me is also silent for the period from 31 July 2007, the day before the plaintiff went on his two month cruise, up until 2009 when the plaintiff saw Dr Schacher after the unfortunate death of his mother. Dr Schacher’s letter to the psychologist at the Sutherland Psychology Clinic of 22 June 2009 shows only one attendance upon Dr Schacher on 12 June 2008 and that was for a “post viral cough”. The plaintiff’s diary for 2008 records a number of other attendances upon Dr Schacher but also records treatment for his physical condition by way of hydrotherapy and chiropracty but also regular playing of golf and various social activities and the plaintiff’s attending art classes and trips away to play golf such as staying at Dormie House and playing golf at Moss Vale and inspecting a chalet in August 2008, which might represent a trip to the Snowy Mountains, and a weekend spent at a chalet in September 2008 and the playing of golf both at Hawkesbury and at Hurstville in November 2008 and at Hurstville again in December 2008. The lack of medical evidence in 2008 and what is disclosed in the plaintiff’s diary for that year to me do not speak of total incapacity which is what Dr Smith asks me to accept during that period of time.

109. However, returning to the current issue, it appears to me that the plaintiff, unlike Daley, has established that his pension entitlement should be dated back to the time he seeks, that is the increase to 77.65 per cent should be backdated to the time that he seeks the pension increase, 17 February 2007 and also that the plaintiff should be granted the increase to 85 per cent since he was certified as totally incapacitated by Dr Whetton.

110. I cannot see how the defendant has been in any way prejudiced or would have been prejudiced in making the assessment that I have done that on the evidence currently before me, in essence, evidence which was clearly available to the defendant had it sought the relevant evidence.

Disposition

111. Are any further reasons for judgment required?

TREHAINE: No, your Honour.

BLUME: No, thank you.

112. HIS HONOUR: I have enquired of the solicitors for the parties, Mr Trehaine for the plaintiff and Mr Blume for the defendant, whether any further reasons for judgment are required, I am told that none is so required.

113. I set aside the decision of the defendant made on 18 March 2014. I determine pursuant to s 10(1A)(b) that the plaintiff’s pension entitlement be increased to 77.65 per cent of the attributed salary of his office from 17 February 2007 and to 85 per cent of the attributed salary of his office from 3 February 2014. I order the defendant to pay the plaintiff’s costs.

Application for a stay of proceedings

114. On application of the defendant, I stay the increase of the pension granted prior to 3 February 2014 until 6 October 2015. For mention before me on Tuesday, 6 October 2015 at 10am.

**********

Endnotes

Amendments

20 November 2015 - Hearing dates amended

Decision last updated: 20 November 2015