McGann v SAS Trustee Corporation

[2019] NSWDC 701

District Court

New South Wales

Medium Neutral Citation:	McGann v SAS Trustee Corporation [2019] NSWDC 701
Hearing dates:	5 August 2019, 6 August 2019, 7 August 2019, 8 August 2019
Date of orders:	08 August 2019
Decision date:	08 August 2019
Jurisdiction:	Civil
Before:	Robison DCJ
Decision:	I set aside the decision of the defendant and in lieu I find pursuant to s10B(2) of the Police Regulation (Superannuation) Act 1906 that the plaintiff, at the time of his resignation from the New South Wales Police on 20 April 1991 was incapable from an infirmity of the mind and body of discharging the duties of his office; namely post-traumatic stress disorder, chronic anxiety disorder and the gunshot wound to the left leg. Defendant to pay the plaintiff’s costs on the ordinary basis as agreed or assessed.
Catchwords:	Police Superannuation – Hurt on duty –Interests of persons entitled to receive benefits under STC schemes – Requirement of SAS Trustee Corporation to act honestly when exercising function – Effect of plaintiff attaining employment since leaving NSW Police – Major traumatic events during police career – Notice of claim – Reluctance to complain – Medical evidence with no authors of reports required for cross examination – Physical and psychological injuries.
Legislation Cited:	Police Regulation (Superannuation Act) 1906 Superannuation Administration Act Civil Procedure Act (2005), Workers’ Compensation Act (1926)
Cases Cited:	Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, SAS Trustee Corporation v Wollard (2014) NSWCA 775,Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626, Stanley v SAS Trustee Corporation (2009) NSWIRCOM 96,SAS Trustee Corporation v Daykin (2002) NSWIRCOM 124, Locker v SAS Trustee Corporation (2013) NSWIRCOM 23
Category:	Principal judgment
Parties:	Plaintiff - Michael Patrick McGann Defendant - SAS Trustee Corporation
Representation:	Counsel: Plaintiff: Mr J Phillips SC Defendant: Mr T Ower Solicitor: Plaintiff: Walter Madden Jenkins Defendant: Mark Bendall
File Number(s):	RJ00273/18
Publication restriction:	Nil

Judgment

1. HIS HONOUR:  After joining the New South Wales Police Cadets on 9 July 1973 and having been attested into the force on 7 February 1975 the plaintiff signed a letter dated 26 March 1991 addressed to The Commander, Major Crime Squad, South West indicating that he was tendering his resignation from the New South Wales Police Force, his last day of duty being 20 April 1991.  He did not wish to attend a “disengagement interview” and that any monies owing to him he sought to have deposited into the Police Credit Union with the account number revealed in this letter.  At that time the plaintiff was a detective senior constable with the Major Crime Squad, South West.

2. The proceedings before this Court are based upon the assertion that the plaintiff considers that he is aggrieved by a decision of the defendant, made on 9 April 2018 and he applies to the Court, by virtue of his first amended statement of claim, seeking an order that the decision be set aside and that it be replaced by a different decision pursuant to s 21(4)(b) of the PRS Act, namely the Police Regulations (Superannuation) Act 1906.

3. On 9 April 2018 the defendant decided that "Having carefully reviewed your letter, I consider that the processes and procedures for the making of the original decision and dispute determination have been followed correctly.  Further, I consider your letter does not provide any additional evidence or material which would support your request to set aside the dispute determination and to again review your client's claim".

4. This is a hearing de novo when it comes to the evidence and the merits.  This decision, made by the defendant, as stated in the plaintiff's outline of submissions, was consequent upon an application by the plaintiff to the defendant for a superannuation allowance pursuant to s 10 of the PRS Act and as part of that process the plaintiff is obliged to satisfy the definition of "disabled member of the police force" in s 10(1) of that Act and it is certainly a necessary part of satisfying that definition is the issuing by the defendant of a certificate in terms of s 10B(2) of the PRS Act.

5. The plaintiff, as a result of the institution of these proceedings, wants the defendant's decision set aside and replaced with a decision that the plaintiff, at the time of the plaintiff's resignation from the police, was incapable from an infirmity of mind and/or body of discharging the duties of the plaintiff's office at the time of the plaintiff's resignation and that infirmity of mind and/or body being either one or more of post-traumatic stress disorder, chronic anxiety disorder, gunshot wound the left leg.  The plaintiff also seeks an order for costs.

6. It is common ground that the Court is obliged to apply that version of s 10B of the Act which was in force as at the date of the plaintiff's resignation and I have approached the task which falls to me on that basis, mindful of the legislative provisions.  I now turn to those provisions.  At the heart of this matter is s 10B of the Police Regulations (Superannuation) Act 1906 as it was at the time of the plaintiff's resignation.

7. The relevant provision of s 10B, when it comes to this particular plaintiff, being a former member of the police force, is subs (2) which is in these terms:

"An annual superannuation allowance shall not be granted under s 10 to a former member of the police force who resigned or retired unless:

(a) The former member notified the Commissioner of Police before his resignation or retirement and within 6 months of receiving the injury which has caused his infirmity of body or mind, of that injury and  subsection (a1) where the regulations so require, the notification was in or to the effect of the prescribed form, and

(b) The board, (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member would have been incapable, from that infirmity of body or mind of discharging the duties of his office at the time of his resignation or retirement."

8. Subsection (2b) is also important:

"The board may certify that a former member of the police force would have been incapable of discharging the duties of the member's office if the member would have been incapable of discharging the duties of the office in the police force in which the member was employed at the time of the member's resignation or retirement and also any other office in the police force:

(a) which was available to the member at that time.

(b) which was not lower in rank than the office in which the member was then employed; and

(c) in which it would have been reasonable to expect the member to have been employed."

9. The jurisdiction of this Court can be found in s 21 of the Police Regulation (Superannuation) Act 1906, subsection:

(1) A person who considers himself or herself aggrieved by:

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

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

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

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

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

10. I pause to reflect on that for a moment; Mr Ower of counsel, indeed, a very experienced counsel, appears for the defendant.  Under subsection:

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

(a) be confirmed, or

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

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

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

(8) The District Court, after hearing an application under this section, may assess the costs of the successful party to the application (including costs of representation, of witness' expenses, if any) and order that costs be so assessed or any part of them be paid to the successful party by any other party within a time specified in the order.

(9) The District Court shall not order the payment of costs under subs (8) by the application for a determination under this section unless satisfied that the application was frivolous or vexatious or was made fraudulently or without proper justification.

(10) Where costs assessed under subs (8) are not paid within the time specified in the order made under that subs in respect of them, the person in whose favour the order was made may recover the costs in court of competent jurisdiction as a debt due to that person by the person against whom the order was made.

(11) In this section:

‘District Court’ means the District Court of New South Wales, established by the District Court Act 1973."

11. Clearly, the Court has jurisdiction to hear and determine the outcome of these proceedings in accordance with s 21. The Court is also mindful of the duties relating to functions as set forth in s 51 of the Superannuation Administration Act:

(1) STC must:

(a) act honestly in all matters relating to its functions relating to the STC schemes and,

(b) exercise, in relation to all matters affecting the STC schemes, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with the property of another for whom the person felt morally bound to provide, and

(c) ensure that its functions relating to the STC schemes are exercised in the best interests of persons entitled to receive benefits under the STC schemes, and

(d) not enter into any contract or arrangement or do anything else, that would prevent STC from, or hinder STC in, properly exercising STC's functions as a trustee.

(2) In exercising its functions STC must have regard to

(a) the interests of persons entitled to receive benefits under the STC schemes, and

(b) the Heads of Government Agreement commencing 1 July 1996 relating to the exemption of certain State public sector superannuation schemes from the Superannuation Industry Supervision Act 1993 of the Commonwealth, and

(c) the future liabilities of the STC funds, and

(d) any statement in writing of the policy of a Government on any matter that is relevant to the functions of STC given by the Minister to STC, and

(e) the role of employers under STC schemes in funding benefits under those schemes.

(3) Subsection (1)(d) does not prevent STC from entering into a contract or an arrangement under s 53".

12. It is clearly evident, by virtue of this legislation, that the representatives of the community, namely the Parliament of New South Wales, had a specific focus upon the interests of persons entitled to receive benefits under the STC schemes.  That is an important provision which the Court must bear in mind when it comes to determining the outcome of this matter and, of course, there are other provisions which are relevant to which I have made reference during the course of this judgment thus far.

13. There is a clear focus on the interests of persons who are entitled to receive such benefits.  This is a plaintiff who is seeking such benefits and, at the same time, the STC must act honestly when exercising its important functions relating to these schemes.

14. This Court has heard from the plaintiff and a number of witnesses.  The starting point is the affidavit of the plaintiff himself; much of the affidavit has not been the subject of challenge.  Certain parts of the affidavit have not been relied upon and to a large extent overall the affidavit, when it comes to factual matters, in particular, the time when he was a serving and highly decorated police officer, has really not been the subject of any real challenge.  The credibility of the plaintiff has, to some extent, been challenged and I shall come back to that shortly in this judgment.

15. The Court has the obligation to assess the evidence fairly, accurately and appropriately, given the real issues which fall to this Court to decide. The Court is mindful, for example, of the provisions of the Civil Procedure Act (2005); in particular s 56 to that end.  The Court must be on guard to ensure that it does not misuse its advantage as the trial judge in assessing the evidence.  The Court is entitled to take into account and should take into account the demeanour of witnesses as they give evidence and, certainly, all of the witnesses, including the plaintiff, would have given evidence, from time to time, in courts but, at the same time, the Court needs to take into account such things as, and not limited to this, the amount of time which has passed since events occurred; the extent to which a person can recall things, going back some years, and this is a matter which goes back many years.

16. No doubt Mr McGann had access to various materials in order to refresh his memory.  Although certain things were put to him in cross‑examination, when it came to his recollection of events, by and large, it seemed to me that what he said was indeed accurate and I would also add, I found him to be a very truthful and reliable witness.  The reasons for that will emerge during the course of this judgment.

17. I do not intend to read out everything that he set forth in his affidavit, much of which has not been the subject of any factual challenge, particularly when it came to his time as a serving police officer in the State of New South Wales.  It is common knowledge, of course, that police officers, when they perform their functions, occasionally are confronted with a need to make decisions.  Those who are the front line are obliged to perform their statutory duties as police officers at a high level of competence, diligence and the need to ensure that they discharge their duties in accordance with the roles assigned to them as serving members of the police.

18. Bluntly put, police are there to enforce law and order within our community.  They are armed, they are armed for a number of reasons; not only to protect themselves but also to protect the community.  Every time a police officer draws his or her weapon, from that time onwards that officer is accountable for whatever the officer does.

19. Mr McGann was a front line serving police officer who confronted many appalling events during the course of his career.  He has given considerable detail about those events and they really have not been the subject of any challenge.  He is 63 years of age, currently unemployed but he has had a history of employment since he left the police and, indeed, it seems that he had no real difficulty obtaining employment as the evidence reveals.

20. The effect of the plaintiff attaining that employment has emerged as an issue in this case.  Namely, that he, for example, obtained a role within the Criminal Justice Commission in the State of Queensland; I have heard and carefully considered the submissions about that.

21. By way of background, he said in his affidavit that he joined the police cadets, as I indicated earlier in this judgment, on 9 July 1973; he was a teenager at the time.  He referred to the application relating to the circumstances leading to his resignation on 20 April 1991 and what was determined by the STC, see para 13.  Clearly, he is aggrieved by the decision.

22. When it comes to his early career in the police, he was 17 and a half when he commenced duty on 9 July 1973 as a cadet.  He perceived himself to be fit and well, both physically and psychologically and he never had cause to seek medical treatment from either a psychologist or a psychiatrist; there is nothing in the material which would contradict that; I accept it.

23. He referred to the phases of cadet training, I have taken all of that into account.  At the time when he commenced his career, undoubtedly, there would have been many police officers who were veterans of World War II and he said in para 21, not knowing anything different, he came to realise that it was a very rough and no‑nonsense existence.

24. He then referred to major traumatic incidents during his police cadets period.  It was not long after he joined as a cadet that he was exposed to what he saw in the morgue at Glebe, namely a post‑mortem examination.  That was the first sight he had of a dead body and, undoubtedly, he recalls that vividly.  I do not need to go into the detail about what he saw then but obviously that would have had an effect on anybody.

25. One of the things which emerged then, and that has been maintained throughout his career with the police, is this; it is encapsulated in para 29 of his affidavit:

"The thinking behind that was that if I didn't smell the body I wouldn't be sick and therefore show myself up to my comrades.  This was important to me in my later career when I oversaw murder enquiries and I had younger Detectives looking to me for guidance."

26. Throughout his career, this man was concerned to ensure that he would not show any sign of weakness or anything of that kind when it comes to those who served with him.  I am sure he is not the only police officer, at that time, or even today, having the same view.

27. Police officers are required occasionally to exercise a degree of force and police officers, at the same time, are required to confront violent situations, terrifying situations and placing their lives in line in order to discharge their responsibilities to the community.

28. The evidence that he gave about his reluctance to discuss how he really felt with others or taking the matter further beyond the scope of what he said in his evidence, is perfectly understandable because that, indeed, was the culture of the police at the time and, with the greatest of respect to everybody, probably continues to this day.  He did not want to show any weakness to anyone; that is perfectly understandable in the circumstances of this highly decorated police officer.

29. In his affidavit he referred to a suicide by hanging, see para 30 and onwards.  I have taken that into account.  Paragraph 34:

"Again due to the peer pressure from other more senior Police officers I kept my emotions in check.  I felt I had to as I knew my reaction at the incident scene would be spoken about at the Station on our return and any ‘softness’ on my part would likely result in ridicule."

30. There is ample evidence to indicate to this Court that that was what was on his mind throughout his entire police career.  Yes, at times he did open up to others, as the evidence reveals, but to a fairly limited extent, I must say.  As to his main police career, which he referred to, from 1975 to 1991 he referred to his time in general duties in uniform from para 35 of his affidavit and onwards.  I do not need to repeat all of that.

31. As to major traumatic incidents during his general duties career, he referred to a building fire at Hurstville; a suicide at a house where he was terrified to enter.  He referred to having seen several dead bodies in various forms, see para 45.  He said in that paragraph that he was never comfortable with and found that hard to accept.  He considered it all part of his steep learning experience; he was a young officer at the time and I note the circumstances of his entry into the house and what he forced himself to do; namely, to go just beyond the front door to prove to himself that there was nothing to be alarmed at.  I note what he said there about what he saw.  Then he gave evidence, by virtue of his affidavit, that he did not say anything to the other officers about his experience for fear of ridicule.

30. He then referred to another violent death, involving maggots and guns; namely a person who had shot himself in a house in the suburb of Peakhurst and had been dead for several weeks during the summer months.  I note what he said in paras 57, 58, 59, 60, 61 and 62.  Then there was a woman who was impaled through her body in a car crash, see para 63 and onwards.  There was a male with severed fingers and he referred then to Riverwood Police Station, see para 67 and onwards.

31. The first instance of being hurt on duty involved a sprained ankle; this occurred on 14 August 1977; I note the circumstances of that, there was a car crash at Peakhurst in respect of which he gave evidence pursuant to his affidavit, see para 75 and onwards.

32. As to his early detective career, he gave some detailed evidence in his affidavit about that.  I note his reference to the transfer to 21 Division on 3 September 1978.  The major traumatic incidents during his early detective career have been detailed in his affidavit, all of that the Court takes into account, it all speaks for itself.  None of that really has been challenged in any event.  I accept his evidence about that and many other matters in his affidavit.

33. He referred to an armed robbery at Summer Hill and a gunman named in para 87 who held up a bank at Summer Hill.  He gave evidence about that in some detail in his affidavit.  I note that there was a car chase.  Then under the heading of "KILLING OF HOSTAGE", I note what he said in para 95 and onwards about that.  He referred to Dragosovic proceeding to shoot the hostage in the head, killing him, although he did not see that at the time but as this was happening he parked in Dobroyd Parade, not far from the crashed vehicles and behind a line of other police vehicles.

34. He then indicated in para 97 that, as he got out of the car and stood up, he recalled the sound of gunfire all around him and he was terrified and in the brief time he stood upright just outside his drivers' door he saw out of the corner of his left eye, on the other side of his own police vehicle, a plainclothes officer standing and firing his weapon from the shoulder to some location in front of the plaintiff and that he was in “combat crouch position”; namely, firing his weapon with both hands extended in front which was the training the police were given in those days.

35. In para 98, he indicated, amongst other things, that there was another male person firing across the roof of a vehicle with the drivers' door of the vehicle open and protecting most of his body and then, as he saw this, he realised it was not a healthy thing to be standing upright due to the gunfire so, prudently, he hit the ground and while on the ground he recalled being convinced, for some reason, that the person firing across the roof of the car was, in fact, the armed offender.  He placed his .38 calibre six shot revolver butt first on the road surface, clearly thinking to himself, that he would shoot this person in the legs and then put a bullet in him and kill him when he was on the ground.  I note what he said in para 101 and what he did thereafter.

36. As to the reference to the "DYING BANK ROBBER”, I note what he says in his affidavit about that; that he heard a lot of gurgling noises and realised that he was dying.  He made reference to another officer, unknown to the plaintiff, jumping the fence and starting to kick the offender in the ribs, yelling out, "Die you cunt, die".  He then said, in his unchallenged evidence, that a short time later the offender made loud choking sounds, convulsed slightly and died.  He watched him as he died and as he did so he saw him looking at the plaintiff as well and that he still has visions of that sight and undoubtedly he does.

37. I then note his reference to the well known movie, "Saving Private Ryan".  I must declare that I have also seen that movie, as many people probably have, and it is certainly a very dramatic motion picture.  It would not be surprising to find that the plaintiff had the flashback to the incident when he saw that film in 1999.  He referred to "REACTION" and I note what he says in para 115 and following.

38. Importantly here, and this again is another indicia of his reluctance to show weakness as a police officer, he said this in para 118:

"As if to reinforce my realisation that you could not show weakness as a Police officer, I recall her telling me to pull myself together when I was unburdening myself to her in the car.  I vowed then not to do the same again."

41. This is in the context of a discussion he had with his mother.  He then, as he said, threw himself back into work and continued on with his police career at that point.  He then referred to a shotgun pointed at him during a police raid in early 1979 where he was nearly shot by “friendly fire”.  I have taken all of that into account as well.

42. He referred to an embassy protest, see para 130 and onwards.  He referred to 19 Division detectives at Revesby from the period May 1979 to November 1981 when he was attached to Revesby detectives after leaving 21 Division.  He referred to a car chase with the police vehicle out of control on a blind bend; I note his involvement in that.  He referred to a body found, eaten by rats; see para 142 and onwards.

43. Then he had another instance of hurt on duty, this involved a sprained right hand, see para 144 and onwards.  I note how that injury was sustained.  There was a shooting suicide at Yagoona, see para 150 and onwards.  Then there was another instance of hurt on duty, described as the third instance, involving multiple abrasions.

44. Then he referred to his time as a detective, Special Breaking squad, Criminal Investigation Branch, November 1981.  He passed his detectives' course in May 1981 and later that year on 22 November he was transferred to the then Special Breaking Squad in the Criminal Investigation Branch then based in the Remington building here in Sydney.

45. He said in para 163 that he never took a backward step and to his way of thinking, did not show any weakness.  He was immensely proud, he said in para 164, of having worked with the calibre of men that he did at the Special Breaking Squad and he said, in his mind, he had to come up to and maintain that standard both professionally and personally.  Importantly, yet again, at the time he believed that any form of weakness would be regarded as an embarrassment to them and make him inferior in their eyes, something that he never intended to happen.

46. He referred to a sprained right ankle being the fourth instance of hurt on duty injury.  Then he gave evidence in the affidavit about major traumatic incidents during his detective career at the Special Breaking Squad.  This included his involvement in the Bathurst bike race riots; he happened to be in the police compound at the top of Mount Panorama at Bathurst; I can take judicial notice of Mount Panorama racing circuit having been a spectator in the past. Mount Panorama, of course, is a venue where many car races have been held over the years and I can also take judicial notice of the fact that there was a considerable amount of publicity about that riot and how dramatic that was.

47. He was on annual leave at the time so he really did not have to be involved at all but, for reasons he indicated in his affidavit, he was deployed to the extent as revealed.  The violence there was certainly of a very high level but it also indicates his preparedness to discharge his duties as a police officer, albeit on leave at the time.  He was certainly a very busy man at that time and throughout his entire police career, and he referred to all of that in some detail; it speaks for itself, I do not need to say anything further about it, save for the fact that he was struck by a rock thrown during that riot.  I am particularly mindful of what he said in para 203 that for years later and for some reason he could continuously hear the thump of the large rock hitting his body.

48. He then referred to the shooting of Detective Senior Constable Steve Canellis, see para 204 and onwards, that will speak for itself but he said that the issues of his own mortality came immediately to his mind as soon as he saw Mr Canellis lying covered in blood, in hospital; fortunately he recovered.

49. He then referred to major traumatic incidents when he was with the Regional Crime Squad, including the murder of a five year old child in February 1984; he played a relatively minor part in that inquiry.  Undoubtedly it was an horrendous crime.  Then he referred to the arrest of the so‑called “Kareela Cat Burglar” in June 1984.  That was not, of itself, particularly traumatic, apart from he being assaulted but it led to his appearance before the Wood Royal Commission into the New South Wales Police Force in June 1996 and he was charged with two counts of assault and three counts of perverting the course of justice.  It appears from the evidence those charges were dismissed in their entirety at committal.  The plaintiff addressed all of that in some detail in his affidavit.  There was no challenge to what he said there about it; I accept it.

50. One can also take judicial notice of the appalling events described as the “Milperra Massacre” in September 1984.  He had a lead role in that and he gave a considerable amount of detail about that in his affidavit.  It speaks for itself.  In particular, his reference to the teenage girl who was shot dead, with her throat torn away, an appalling event.  She had been struck by a very heavy calibre bullet, .357 fired by the leader of the Bandidos from a lever action rifle.

51. He referred to the raids on the bikies and the arrest of the Comanchero gang member; clearly that weighed heavily on his mind.  He referred to contracts on members of the task force and the fear of being sniped at; that has all been detailed in his affidavit.  Clearly he was concerned about his own safety at that time and that is not surprising.  When it came to personal mental health issues after Milperra, that has been detailed in his affidavit as well.

52. He was asked to speak at a medical conference in February 1986 about his experiences at the massacre and one of the topics he was asked to talk about was described as "ongoing stress - not limited to 2 September 1984".  Undoubtedly, since leaving the police he always becomes nervous when he sees bike members in full colours; that is not surprising, given the circumstances and the Court acknowledges that there were seven dead and 21 wounded during the course of that massacre which achieved an enormous amount of publicity.  Undoubtedly, all of that speaks volumes in his mind, see para 275.

53. The sixth instance of being hurt on duty involved his injury to his left knee where he sustained abrasions and soreness to his left knee.  Then he referred to his time with 11 Division Detectives at Ashfield, 1987 to 1988; he described this period at Ashfield being among the most physically and mentally damaging of his career.  What has loomed large in this matter is the gunshot wound, with a so‑called “pen pistol”, this was the seventh instance of being hurt on duty injury; there is no issue about that, nor is there any issue about the consequences of that, per se, when it comes to these proceedings.

54. The Court has carefully considered the circumstances leading up to that injury and his affidavit really has not been challenged about that at all.  He had surgery following that and he recalls the smell of burning flesh, see para 290 and onwards.  He was eventually released from hospital and in para 304 he said this:

"I went upstairs and sat down and for some reason suddenly it hit me - the fact that I could have been killed through this shooting."

55. Undoubtedly, that would have been on his mind together with other things.  He referred to depression on his first night after he was released from hospital.  He described, in para 306, that he was extremely depressed and anxious.  He contacted a good friend of his who came over to his unit with her sister and there was some time spent with him.  He also indicated, in para 309, that on 11 September 1987 he saw Dr Bornstein with a new doctor's certificate.

56. He was not particularly happy with what he was told by Dr Bornstein; then he consulted another orthopaedic surgeon in Hurstville, a Dr Rowden, who told him the wound itself seemed to be healing well and he could see no reason for a skin graft.  He also consulted Dr Anderson, the police medical officer and was certified unfit until 6 October 1987. A copy of those notes is included in the bundle.

57. Then he referred to an event described as a “DUMMY .22 BULLET EXPLODED AT THE BALLISTICS UNIT AS A JOKE”, see para 312 and onwards about that.  He was told, see para 315 that he “turned the colour of ‘bad shit’ when the explosion went off".  This was in a context of what has been described as “black humour” which the police were renowned for.  Undoubtedly, to put on a brave face, he laughed at the time but was, at the same time, very shaken up and became quite nervy; I am not surprised that he felt that way.

58. Then there was a wedding party and he was still on crutches at the time and friends continuously kept asking him what happened and he said that, after a short time, he had to leave the wedding as he felt sick and apprehensive whenever he spoke about the shooting.  Dr Anderson also placed him on light duties which he said meant he was not to perform any street duty, deal with any intoxicated persons or prisoners and not to lift heavy weights.  Unknown to him at the time, Dr Anderson wrote a memo to Dr John Raue of the New South Wales Police Psychology Unit where he said inter alia "However, he has noticed that he has been quite nervy since the incident and was upset by the crowd at a wedding he recently attended".

59. He referred to the visit to the Police Psychology Unit, I note what he said there in his affidavit.  He referred to personal and mental health issues after the shooting, that is the shooting with the pen pistol, and he became quite nervy for a long time after that, that there have been reminders of the shooting coming back and which have never left him.  Indeed, he is reminded of the shooting every day for the last 32 years just by the simple act of putting shoes and socks on; none of that has been challenged.

60. The eighth instance of being hurt on duty and having sustained an injury occurred when acid was thrown over him in 1987; that has all been detailed in his affidavit, that would have been a traumatic event in itself.  The acid coming into contact with his body occurred in the circumstances as revealed in para 335 where the offender lunged at him and tackled him but in doing that the container in which the hydrochloric acid was placed spilt all over his back and undoubtedly he felt an incredibly sharp stinging pain on his back.  Indeed, it was a significant event because parts of a police issue revolver were eaten away by acid, see para 338 and onwards.

61. He had an argument with a supervising sergeant in relation to overtime, see para 343 and onwards.  He also said in para 348 that despite not wanting to return to work so soon after the acid attack; he was feeling tired and apprehensive, and he again returned to duty that night, continuing to be an officer‑in‑charge of a wireless car.

62. As to his reference to "NERVOUS DISORDER" I note what he said there about that when it came to the New South Wales Police register and the medical file.  He referred to a visit he made to his local GP, a Dr Olm, who provided him with a medical certificate for nervous disorder; that is important for reasons I will indicate in a moment.

63. In para 352 he said he had no recollection of the illness or is visit to Dr Olm now but notes that it came only several months after both the shooting and the acid attack and he added, it also came two days after attending a suicide by carbon monoxide poisoning at Ashfield on 2 March 1998 and he believed that he was showing the strain of recent events; and undoubtedly, he was.

64. He had personal and mental health issues after the acid attack; that has been revealed in para 354 where he indicated that the main problem he experienced in being injured was that it seemed to be happening far too regularly for his liking and he was becoming a little "gun shy", very anxious and nervy but trying not to show it.  Again, this has been a primary thread of his evidence throughout his time with the New South Wales Police.

65. He referred to the arrest of one, Stanley Kevin Shishova, and his left knee giving way during the foot pursuit of the offender; this being the ninth instance of hurt on duty injury, being the fall.  He gave detailed evidence about that in his affidavit.  A significant episode here involved the pursuit of the offender, he said in para 359, as both of them walked in Forest Road, he took off, that is the offender, running towards the Hurstville Railway Station and with that, the plaintiff pursued him on foot but his left knee gave way; (I might add, this is not the only time that his left knee has given way), and he fell heavily to the ground outside the post office in Forest Road but he picked himself up and resumed the chase.  He was apprehended by a civilian at the top of the stairs leading to the railway station after he called out to arrest him.

66. That is an important episode for this reason, when it comes to his ability or otherwise, or more correctly described, his capacity or otherwise, to carry out his role as a member of the police force.  I am going to draw an inference, which I think is available for this Court to draw, on the admissible evidence, that had it not been for the intervention of the civilian, that offender may well have decamped without the plaintiff being able to catch up to him and effect the arrest.

67. Being a front line police officer, confronted with the situation that he was confronted with, it is clear to me, as an available inference to that end, that had it not been the apprehension by a civilian then he would have effectively got away.  That, of itself, as a discrete episode, (but there is more), clearly indicates that at that time, in any event, he was unable to perform his duties as a police officer and I consider that is an available inference to draw and, indeed, for that event he was awarded the New South Wales Police Force highest medal for bravery, the Valour Award.

68. He then referred to his time with the Homicide Squad, South West Region, see para 268 and onwards.  He thought that would be of benefit to him, although it was challenging work, and he took it up, see para 369 and onwards.  He then referred to what is described as "HANDS OF DECEASED PERSON CUT OFF", see para 386 and onwards; I have taken that into account.

69. He then referred to another matter, as he said in para 393, that he was in charge of a difficult and protracted murder, as he indicated, and I note what he said there about that.  In para 397, when he was working with the Homicide Squad he found that always interesting and challenging but he recognised he was becoming mentally and physically exhausted and that pain and instability from the gunshot wound in his left leg was becoming more of a problem for him as time went on as far as mobility was concerned and it was particularly noticeable when he was driving motor vehicles.

70. That is not surprising to find, given the nature of that injury and I consider that the Court is entitled to find that as a fact that this caused him some difficulty when it came to his mobility.  Again, police officers need to be mobile, they need to be able to react quickly in circumstances which confront them.  That is not only in the interests of police officers, it is also in the interests of members of the public who are entitled to have their protection in any circumstances that may confront them; so that must have had an effect on the performance of his duty to that end, but he literally, and there is other evidence to support this, soldiered on.

55. Indeed, his knee is still a problem for him to this day, with the bullet still within that area.  In para 402 he said his mobility limitations as a police officer became particularly evident when his knee gave way chasing Mr Shishova in July 1988.  Undoubtedly that was the case.

56. When it came to any promotion opportunity, he wanted a promotion, for the reasons he indicated; initially he was successful but ultimately that did not come to pass for the reasons he indicated in his affidavit.  That would have been a matter of disappointment to him, at least and, indeed, at that time it would have been devastating to him, particularly having regard to his time as a serving member of the police force with his successes over those years, so human nature being what it is, it would not be surprising to find that that, of itself, as a discrete issue was certainly an upsetting situation for him.  In para 410 he said this:

"As 1990 went on I came to realise, although, I did not want to accept it, that I was effectively ‘marking time’ as a Detective in the New South Wales Police Force.  Since the shooting and acid incidents in 1987 and even earlier, to the riots and the Bathurst bike races in 1983 together with the many murder investigations I dealt with in my role as a Homicide Detective, I realised that the job was taking its toll on me both physically and mentally."

73. He referred to another example of his deteriorating mental state, see para 413.  It got to a point when he started to seriously consider alternative employment out of the police force, see para 416.  He wanted something which would not involve arresting violent offenders or attending gruesome scenes of crime.  He did not want a position where he could get injured.  He said that he considered that his confidence in doing his job as an investigator was starting to unravel and it broke his heart to consider resignation as he loved the job but he felt he had no choice even though he felt he could achieve promotion at least to Detective Inspector if he had stayed.

74. He was also concerned about putting his colleagues at risk, see para 417, and I note the circumstances leading up to the time when he eventually resigned.  In para 424 he said this:

"This was a gradual descent, not some divine revelation on one particular day.  I felt that a fresh start in another State, away from the violence of policing would be the best choice for me and I took it."

75. His employment with the Criminal Justice Commission (CJC) in the State of Queensland has been detailed in his affidavit and how he obtained that.  He said in para 429 that the CJC was a pseudo police unit but he knew he would not be an operational police officer with all the dangers associated with that position.  He said he knew he would be working with like minded individuals, without being a police officer, and all the problems associated with that role and, in fact, since leaving the police in 1991 he did not have to run, chase offenders or do anything remotely resembling the duties of a police officer.

76. Undoubtedly, over the years, the plaintiff built up an enormous amount of skill and experience, not only in physical front line policing, but also with the need to carefully investigate matters and take statements from people and matters of that kind.  Those particular aspects of investigating matters, to the extent that it does not involve personal confrontations and other matters, was really what the plaintiff wanted and I make that as a finding of fact; that is what he wanted; he did not want to be involved in any more front line activities with the police given a build up over a considerable period of time of those issues which he addressed in detail in his affidavit.  Certainly, the shooting with the pen pistol was, of itself, a very significant matter but there was more to it around that.

77. Then he referred to the matter, as he described, "FRIEDL MURDER".  He said in para 431, that while his efforts to gain employment outside the Police Force were occurring, that on 24 February of that year he was put in charge of a particularly gruesome murder, that of a man named Rudy Friedl who had been stabbed about 36 times and partially decapitated in his chicken, takeaway shop at Lakemba and, being a Sunday, he at that time was the most senior member of the homicide squad on duty, and acted accordingly.

78. He referred to the crime scene being just swimming in blood.  Undoubtedly, as he said in para 436, the killing was exceptionally barbarous and ferocious and he had trouble dealing with it and it reinforced, in his mind, that his decision to seek employment outside the police force was the right decision.  He then, very close in time, had a conversation with the then, Senior Sergeant Allan Tayler from whom this Court has heard.

79. He then referred to his resignation on 20 April 1991, I have already referred to that.  He resigned at a time when he had some 18 years of service.  If he had remained for 20 years he would have obtained some significant superannuation benefits.  In para 448 he said this:

"In the lead up to my resignation I was acutely aware of the need to have completed 20 years' service to obtain significant superannuation benefits.  At the time of my resignation I had 18 years of service but I did not care about reaching 20 years and was not going to stay to simply qualify for those benefits."

80. That is unchallenged evidence and I take that into account as something which reveals that, overall, he has been a very credible and reliable witness, as I indicated earlier in this judgment and that is just one of the reasons for making the finding that I have just made, so it really was not a question of monetary gain, it was a question of how he felt at the time.

81. He also said that at the time of submitting his resignation he was not aware, nor advised by anyone in the New South Wales Police of any options he had regarding the hurt on duty injuries apart from resigning and I appreciate, during the course of cross‑examination, certain matters were revealed and he was taken to certain documents, as the transcript will, no doubt, reveal if it is eventually produced.

82. As to his incapacity for work, I note what he says about that in his affidavit, from para 452 and onwards.  In para 462, which was a subject of cross‑examination, he said, on the date he submitted his resignation he considered himself incapacitated for work as a police officer, performing criminal investigative duties because of the psychological and physical symptoms he was experiencing and the consequences of those symptoms.  I note the extent to which he was cross‑examined on that.  He was also cross‑examined on what he said in para 463, namely, that these symptoms included regular sleep disturbance, being due to nightmares and dreams.  He also ruminated about jobs he had attended whilst a police officer and inquiries he was working on and that looking back on things he was chronically exhausted.

83. In para 464 he said he was regularly depressed and sad, he was lethargic and seemed to lack motivation at times.  In turn, he said that that adversely affected his ability to concentrate and observe. Well that goes right to the heart of being a competent police officer; police officers are trained to observe things; they have to give evidence in court from time to time, they need to concentrate on what is going on around them, that can be called situational awareness.  Any effect on a police officer's ability to concentrate and observe, clearly must have an ongoing effect on the ability of that officer to perform his or her duties.

84. He was worried about his decision making ability, that he lacked confidence and worried that in moments of stress he would make a poor decision which may jeopardise the investigation or, in a worst case scenario, put risk on his own life, the lives of his colleagues and lives of members of the public.  I accept that evidence, I see no reason to reject it.  I note what he says in para 465 and 466, it is common ground that he was an officer of exemplary conduct and he certainly received commendations for competence, professionalism and resolve; I note the awards and decorations he received.

85. As to trying to deal with issues, and I appreciate, this is a mixture of the plaintiff's perception and submissions, given the objections earlier in this hearing, but I have taken them into account to the extent that I can.  Undoubtedly, he was doing such things as drinking very heavily at times; he said that the combination of all of these incidents, and many others, left a legacy of fear and poor health, both mental and physical that has changed his life forever.  He adds that to this day, a cold chill goes through him whenever the doorbell rings unexpectedly.

86. I have not referred to everything that he said in his affidavit, but there are other things that he said that I have certainly taken into account in the context of the hearing and the issues but there are some other matters I should make specific reference to.  In particular, there was this in para 479 where he said he did not actively seek treatment during his service but put this down to the culture that existed at the time, whereby one was expected to get on with the job, particularly if one was in the CIB or Major Crime Squad detectives and he saw other officers, allegedly coping with things, so he tried to remain strong.  He considered it unbecoming, in his role as a Major Crime Squad detective, to actively seek treatment, especially for a psychiatric injury which he believed would be letting his colleagues down and he strongly regrets this course of action that he took as he suffers every day with his "demons".

87. He also added in para 481 that he was of the belief in 1991 that his resignation would mean he was not entitled to any hurt on duty benefits and that nobody spoke to him prior resigning about any options regarding the shooting or HOD specifically and his resignation was accepted by senior officers as being “one of those things”.  I note his reference to sleepless nights.  Then there is a number of portions of his affidavit referring to his dreams.  In particular, said shootings preoccupied his dreams.

88. He gave evidence in his affidavit about the Criminal Justice Commission, as I observed earlier, and what that job entailed.  Whilst there might be some similarities between that job and the operational responsibilities and duties of police officers, it is not quite right to say that there were similarities to the extent as carefully submitted by Mr Ower for the defendant.

89. Throughout all of this, he did not want to have any front line physical involvement.  He did, of course, have what one could call a “tangible asset”, he had a skill and experience in investigating matters and it would appear that his time at the CJC was something that he could cope with to the extent as he revealed in his affidavit.

90. His job was to investigate complaints of alleged or suspected misconduct by holders of appointments in units of public administration including the Queensland Police Service, official corruption in units of public administration, organised and major crime and the advantage of working in an organisation such as that was, as he stated in para 505, that he was removing himself from a confrontational, dangerous operational theatre to one of straightforward investigations where many of the decisions, such as the decision to charge, what and who to investigate, et cetera was the responsibility of others, not himself. In para 506 he said unequivocally that he was not the subject of violence, he did not have to attend violent or horrific incidents, he did not have to arrest persons who were often violent or who were armed; he was not exposed to the aftermath of trauma; he did not have to deal with the victims of trauma and their relatives and friends; he did not have to deal with any form of dead or mutilated bodies; he did not have to carry a firearm or other weapons; he was not subject to criminal sanction if he neglected his duty or refused to obey any lawful order.

91. I accept that evidence.  There is nothing to suggest I should reject it.  They were the sorts of things which occurred frequently when he was a serving member of the New South Wales Police Force; those things did not confront him when he was with the CJC.  It appeared to me, as I listened to his evidence, and having read the relevant documents, that this was a position which suited the experience of the plaintiff.  In para 510 he said this:

"Although I enjoyed working at the CJC, my role did not permit me to manage a team of people.  I realised that I could not continue without obtaining this experience so I submitted my resignation in November 1993 and joined the National Crime Authority."

92. Then he went on to give evidence about that in para 511 and following, that he was employed as a senior investigator with the National Crime Authority in Sydney; taking part in investigations into Italian and Chinese organised crime and he said this was an intelligence gathering role and did not participate in the arrest of offenders or attend crime scenes.  The reason he left the National Crime Authority was, as he indicated in para 12; there was his role as a Senior Investigator and along with other civilian investigators at the Authority he was to be transferred across to the Australian Federal Police and his position as a Senior Investigator would have translated over to that of a Detective Sergeant in the Federal Police as a position he held for about a month before resigning.

93. Undoubtedly, given that particular time, he did not want to be a police officer and his explanation for resigning from law enforcement completely in March 1995 is plausible and I accept it. He moved onto the corporate world, as he described in his affidavit.  I note his reference, again to the “Kareela Cat Burglar” matter and his involvement in the Wood Royal Commission and I have already referred to that.

94. Undoubtedly, his involvement in the Wood Royal Commission and the period of time he spent before the charges were dismissed would have had a very significant emotional effect upon him and I have taken all of that into account when assessing this matter overall.  This was undoubtedly a significant matter of stress for him at that time and there were other stressors, as he indicated in his affidavit, it speaks for itself; I do not intend to repeat it all here.

SHORT ADJOURNMENT

95. I have also taken into account para 540 of his affidavit about his consultation with a local doctor.  I note he was cross‑examined as to a number of matters arising from that.  He also indicated that the situation with Myer and the events he described about that in his affidavit were comprised of a series of events which he said greatly contributed to his poor mental and physical wellbeing and that is a matter which I have also taken into account.  He has also indicated that as it appeared that he could no longer be effective in his duties there, he was terminated from his employment in June 1998 and then later received an employee separation certificate; he had resigned voluntarily.

96. I have already dealt with the effect of the criminal charges which were against him and the disposal of those charges subsequently.  He has also said in his affidavit that he left Metcash in mid‑2001 due to the poor wages he was receiving and returning to Sydney.  He commenced work with the New South Wales Department of Mineral Resources, as he said in para 553, yes, what he was involved with there, included the investigation of fatalities but, in his affidavit, he said he was not seeing any dead bodies during this time and his core skills of investigating, report writing and evidence gathering were utilised; again, this comes back to what I observed earlier about his tangible asset as an investigator.

97. I note what he said about TNT Sydney, he being sued, as he described in his affidavit.  He referred to the Bishop Inquiry in the New South Wales Parliament and what was said about that.  He also had a diagnosis of a form of bowel cancer which resulted in removal of about a third of his large intestine, so certainly, he had a number of other personal issues outside the police force; that is a matter the Court should also take into account.

98. He became the Group Security Manager at Metcash which he found the role being very challenging, where he oversaw security staff in Australia and New Zealand.  He referred to the termination of his position in March 2012 when he was with Metcash.  There was an unfair dismissal claim which he pursued. He was last employed as an Operations Manager at Brookside Investigations but became redundant and has not worked since then.

99. I note his reference to Dr Holt referring him to a psychiatrist, Dr Whittington and what was said about that.  He thought his symptoms were being made worse by medication so he refrained from taking any medication since early 2017.  He then addressed his hurt on duty injuries from para 604 and onwards; all of that has been taken into account.  He added that he had sustained injuries which were not reported mainly due to the culture which prevailed in the police at that time, which was not to display any form of weakness.

100. Having regard to what he said about Mr Harding and I have noted Mr Harding’s evidence also; he had a considerable degree of contact with him for the times that he indicated and he details that in his affidavit.  He repeated that it was the attitude of the New South Wales Police not to show any form of weakness and to press on regardless of circumstances; see para 617.

101. As to the claim process, I note what he said there about that.  There was a fall at Brighton; and what he did to obtain evidence for the claim.  He referred to his examinations with Dr Maxwell, Associate Professor Glozier; see para 637 and onwards.  He also said in para 655 that the only means of reporting a hurt on duty injury was via a form called “P124b” which only required the facts of the matter; namely, name, rank, station, date, time, place, brief narrative and verification by a witness or senior officer and that he did not believe there was any provision in any documents to give notice of the psychological injury.  I would have thought that if he had been advised of that he would have done so in the circumstances but I do not see any reason why I should reject his evidence about what he said about all of that.

102. I note the extent to which he was cross‑examined about a  number of documents upon which he relies in this matter.  In particular, what appears on p 4 of the material referred to in his affidavit, namely the New South Wales Police medical record and certainly it does reveal some periods of time off work.  I note the extent to which submissions have been made about that and I will come back to that shortly.

103. He was cross‑examined as to the contents of p 26 of that material.  There was reference to the nervous disorder as revealed in a certificate of sickness as revealed on p 30; this was a certificate from his treating GP at the time.  I note what appears on p 37 as well, being a certificate under the hand of Dr Yenson.

104. He was also taken to a transcript of the doctor's notes, see p 46 of the material.  The plaintiff indicated that the first time he saw that, namely "To recontact if improvement doesn't continue next 5 or 6 weeks", it was not seen by him until 2010.  There was also the transcript of the original letter as revealed on p 47.

105. The application form for medical discharge benefit has certainly been the subject of evidence and submissions and I note what was said about that.  In particular, his declaration that the information he provided in the form was, to the best of his knowledge, true and complete.  That form was dated 23 March 2012.  It is appropriate to observe that not only was the left knee gunshot wound referred to but there was also, what has been described as medical condition 2; a chronic anxiety disorder.

172. This legislation needs to be considered carefully in the circumstances of the position of the defendant and, of course, the plaintiff. The legislation does not demand absolute perfection when it comes to notice. It was the legislative intent that there would be circumstances in which notification can be given in another form provided, of course, it is to the effect of the prescribed form. When one considers the collective value of the documentation, which I think is relevant here, such as the affidavit of John Raue, and other material, I confirm my view that notice was given which would satisfy the provisions of s 10B(2)(a1).

173. At the outset it should be noted that Mr Ower, who appears for the defendant, made it very clear that the plaintiff was a diligent and hard working police officer and there is no issue at all about that and he very fairly and properly made that clear to the Court.  In his submissions there is a submission that there was no contemporaneous evidence of incapability for duties of his role as a Detective Senior Constable at Flemington and that there was minimal sick leave taken.  I have taken those submissions into account, which have been amplified in his oral submissions.

174. Yes, there may be a view, which I think is well founded, that to some extent there has been no contemporaneous evidence of incapacity at that time at that point but there is other evidence that the Court needs to take into account and the Court is obliged to fairly and objectively assess the evidence as a whole; no one piece of evidence or lack of evidence can be taken in isolation from the other.

175. It boils down to a question of fact in every case.  Mindful, of course, of the principles of law to which my attention was drawn during the course of submissions in this hearing.  Yes, minimal sick leave was taken but I remind myself of the attitude that the plaintiff had at the time about soldiering on and that has been observed, in an objective sense, from another witness.  I am also mindful of what he, in fact, did over those years.

176. A fair‑minded, objective observer, simply standing by and watching this police officer doing his duties may well be surprised to find that he was suffering from these problems during that relevant time.  Such a person may consider there is nothing wrong with this police officer but, in my view, the evidence leads this Court to conclude that there was, indeed, something wrong at all material times leading up to, and including, the date of his resignation.

177. Certainly, the pen shot injury of itself was significant and debilitating to the extent revealed in the evidence, but there was more to it than that.  Clearly, as I observed in my judgment, when it came to the arrest of the offender, for which he received the Award of Valour, if it had not been for the intervention of a civilian, then the offender would have escaped apprehension at that time.  If his leg had not given way, then it is open to this Court to find, on the balance of probabilities, that it was more likely than not that he would have reached the offender, either prior to or at the time of the intervention of or by the member of the public.

178. He certainly did conduct investigations over a considerable period of time.  I note the reference to the personal arrest of the offender following the murder of Mr Friedl.  Those circumstances need to be considered in their proper context.  I have already made comment about that in this judgment.

179. It has also been submitted that his subsequent immediate employment in criminal investigative roles, albeit with no requirement to arrest or maintain the peace, can be equated effectively with what he was doing in the past.  In my view, there was a vast difference between his involvement in the Criminal Justice Commission when compared to or, more correctively described as contrasting with his earlier time with the Police Force; I have already made comment about that in this judgment.

180. It has been submitted that the reasons for his resignation were more likely due to a combination of the plaintiff's devastation having missed out on his promotion to sergeant, the job lined up with CJC for more money and that he simply did not want to be a policeman anymore, as distinct from being unable to perform his duties of office.

181. There is also reference to ex post facto rationalisation.  Dealing with that matter firstly; given the passage of time and the issues which have been presented to this Court, human nature being what it is, sometimes there may well be, at least unwittingly, a process of rationalisation.  Again, each case needs to be determined on its own facts and circumstances.  One should not forget that the plaintiff was a highly successful police officer and what came with that was a high level of concentration, commitment and the deployment of observation and memory arising from such activities.

182. This particular plaintiff, although perhaps on occasions, embarking on some areas of rationalisation, overall was accurate enough in his evidence, when one looks at all of the other evidence, in satisfying this Court that his evidence can be accepted to the extent that it was given.

183. Yes, the Sergeant's job would have meant more money.  Yes, the job lined up with CJC would have been for more money.  One needs to look at that in the context of what confronted the plaintiff at the time of those particular matters occurring.  He had a love for the Police Force, he had pride in what he did, he was awarded for his actions in various ways, as I indicated earlier.  His move to the CJC was not just for money; to find otherwise would be a finding against the weight of the evidence to the contrary.  The clear collective value and weight of that evidence leads this Court to conclude that given what confronted him over those years and the effect of that and in particular “soldiering on”, as it has been described, was the real reason why he wanted to have a position of employment commensurate with, to some extent, his tangible assets as an investigator and an assessor of factual circumstances.

184. The primary reason, I find as a fact on the evidence available to the Court, was he wanted to move away from the operational nature of police work into an area where he was not exposed to those matters that he referred to and described in detail in his evidence before this Court.

185. Yes, it could be said he did not want to be a policeman anymore, but there was a reason for that and the reason for that is glaringly obvious from the evidence which has been presented to this Court.  Clearly, he did not want to be a policeman anymore because of those reasons; he could not cope with it anymore, he came to a breaking point, the end of his tether and at that point, at the point of his resignation he really could not perform those duties of office anymore.  Any view to the contrary would be against the weight of the evidence.

186. My attention has been drawn, helpfully by Mr Ower and Mr Phillips, SC to a number of authorities, particularly when it comes to what is meant by “injury” and other matters.  The authorities which have been presented to the Court are authorities which the Court certainly takes into account, as it has to.  I repeat, these matters come down to a careful evaluation of the evidence and the facts that can be drawn from the evidence.

187. I have noted that in SAS Trustee Corporation v Wollard (2014) NSWCA 775, there was a reference to what constitutes an injury; see para 66 of that authority. Clearly, what was said there was that it should not be given a narrow construction and it is wide enough to encompass a psychiatric disorder as well as a physical injury and I take that into account. Further, an injury can be comprised of and include the aggravation, acceleration, exacerbation or deterioration of any disease where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration.

188. In Wollard it was said that the definition of “injury” in the Workers' Compensation Act 1926 was in the terms as indicated which included what I observed a moment ago, but at the end of the day, when it comes to “injury”, it is clear to me that in this particular case, there was not only a physical injury to his left knee but also, the extent of which has been revealed on the evidence to a significant extent, a significant psychiatric injury of the kind referred to in the reports and in the evidence.

189. The Court needs to look at the medical evidence and form conclusions from it.  I have had regard to Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626 and what was said there; particularly when it comes to the word, “acceleration” and the reference to a “progressive disease”. Stanley v SAS Trustee Corporation (2009) NSWIRCOM 96 is another authority to which my attention has been drawn; I note the submissions about that.  Although Mr Phillips has said this is the closest case to the case that is before the Court here, Mr Ower, whilst not necessarily disputing that, has made some submissions about the test as referred to by the Court in that case in para 60 and I take his submissions on board, note them but with other matters, however, in Stanley there are some similarities.  It all comes back again to a determination of the facts which the Court finds established.

190. SAS Trustee Corporation v Daykin (2002) NSW IR Comm 124 has also been referred to.  Again, it comes back to a question of fact; see what was said at para 25 of that authority on p 179, there is no need to repeat that here.  An example of determining these matters on their facts can be readily seen from what was said by the Industrial Court in Locker v SAS Trustee Corporation (2013) NSWIRCOM 23; that involved a police prosecutor.

191. One can cite many examples of various factual circumstances but importantly, of course, when it comes to the need for the Court to determine the outcome of this matter, the Court needs to determine whether, at the time of the plaintiff’s resignation, he had sustained an injury which caused his infirmity of body or mind, and what flows from that, as to whether he would have been incapable of discharging the duties of office in the Police Force in which he was employed at the time of that resignation or retirement and also any other office in the Police Force; and that is the statutory requirement the Court must bear in mind, the requirement which is enunciated by statute as relevant at that time.

192. True it is, when the plaintiff was confronted with certain contemporaneous evidence, some of that was contrary to his recollection but to his credit, the plaintiff indeed readily conceded that the contemporaneous evidence was more reliable than his own and to that extent I accept the submissions made by Mr Ower when it comes to that particular issue.

193. I do indeed need to consider the matter when it comes to his alleged incapability, as being assessed by reference to his actual duties of office as a Detective Senior Constable designated to the Homicide Unit, Major Crime Squad at Flemington as Mr Ower has submitted.  I have indeed done so and very carefully embarked upon that task which falls to me to decide.

194. Mr Phillips, SC has provided written and oral submissions and he correctly submits to the Court that the plaintiff needs to establish certain facts; namely, that the plaintiff must be, at all relevant times, a contributor to the Police Superannuation Fund and there is no dispute that he was; that fact has been established.  Secondly, he must resign or retire; he did that and there is no issue about that and certainly there is no issue that he is a former police officer, entitled to bring the claim.  What is in issue is another fact that he has the onus to establish; thirdly, that at the time of his resignation, the plaintiff must be incapable of discharging the duties of his office and that, in the present case, must be so incapable from an infirmity of the mind and/or body.

195. This infirmity of the mind is certainly recognised as a psychiatric disorder; although it need not be, but it would seem from what I have considered in all of this, that he indeed had, at that time, that is, at the time of his resignation, an infirmity of the mind and, further, an infirmity of a bodily kind.  The Court needs to be satisfied that this incapability existed at the time of his resignation; I have already referred to that and certainly, an injury can include an aggravation of a disease.

196. The bottom line of the submissions on the plaintiff's case is that the facts establish, as at the date of his resignation, all elements necessary for the certification of infirmity of the mind and/or body in terms of s 10B(2) of the PRS Act, that is the bottom line of his submissions.

197. I have stepped back and looked at all of the evidence and given it appropriate weight.  I have come to the conclusion, having carefully reviewed and assessed the evidence, both written and oral, that the plaintiff in this case has satisfied the onus.  I accept the submissions of Mr Phillips, SC to that end.

198. For those reasons I now make these findings and orders. Firstly, I set aside the decision of the defendant and in lieu I find pursuant to s 10B(2) of the Police Regulation (Superannuation) Act 1906 that the plaintiff, at the time of his resignation from the New South Wales Police, on 20 April 1991 was incapable from an infirmity of the mind and body of discharging the duties of his office; namely, post-traumatic stress disorder, chronic anxiety disorder and the gunshot wound to the left leg.

199. I also formally find that for the purposes of s 10B(2)(a1) of the PRS Act the plaintiff provided relevant notification of the injury to the Commissioner of Police to the effect of the prescribed form.

SHORT ADJOURNMENT

208. Mr Treharne who now appears for the plaintiff has sought an order that the defendant pay the plaintiff's costs on an indemnity basis having regard to a letter dated 15 June 2018 to the chief executive officer of SAS Trustee Corporation.  I note what that letter says.  It appears to be common ground that the letter was dated and sent before these proceedings in this Court commenced and apparently there has been no repeat of that offer.  Mr Ower correctly says that it is either a certified infirmity or not; this is not a claim for damages, it is a claim effectively giving rise to an application to the Court to decide otherwise than what was decided by the defendant.

209. It is certainly a letter, I believe sent in good faith, but it really was a letter which requested a review of the situation.  That did not occur and nobody would have been able to predict the outcome one way or the other; that would amount purely to a matter of speculation, so at the end of the day, the interests of justice, in my view, certainly warrants an order in favour of the plaintiff for his costs of the proceedings but there would be an insufficient basis to make a special costs order amounting to an indemnity costs order as sought by Mr Treharne and I agree with Mr Ower's submissions.

210. Accordingly, I decline to make an indemnity costs order and I will make this now as an order.

211. I decline to make an indemnity costs order in favour of the plaintiff.  I order that the defendant pay the plaintiff's costs on the ordinary basis as agreed or assessed.

212. I will not make any order at all about the exhibits unless the Court is asked otherwise they will be returned in the usual way by the registry.

ADDENDUM

213. *The court also took evidence of Stephen McLennan in to account although not specifically stated in this judgment.

Decision last updated: 27 November 2019