Michael Adderley v SAS Trustee Corporation

[2022] NSWDC 149

District Court

New South Wales

Medium Neutral Citation:

Michael Adderley v SAS Trustee Corporation [2022] NSWDC 149

Hearing dates:

28 April and 02 May 2022

Date of orders:

4 May 2022

Decision date:

04 May 2022

Jurisdiction:

Civil

Before:

Hatzistergos DCJ

Decision:

See [52]

Catchwords:

CIVIL PROCEDURE –– Plaintiff seeks to set aside a decision of the Defendant determining that he did not provide “notice” of his injuries as required by s 10(B)(2)(a) of the Police Regulation (Superannuation) Act 1906 (NSW) – Plaintiff claims to have injured his left knee in 1987 whilst training at the NSW police academy – Plaintiff claims the clinical record prepared by a nurse at the academy erroneously referred to the right knee as opposed to the left knee but was otherwise was to the effect of the prescribed form and constituted notice within s 10B(2)(a) (a1) of the Police Regulation (Superannuation) Act 1906 (NSW) – Requirements for valid notice considered – Notice found not to be in or to the effect of the prescribed form – Plaintiff has not established clinical note reference to left knee in 1987 as inaccurate.

Legislation Cited:

Police Regulation (Superannuation) Act 1906 (NSW) ss 10B, 21

Police Superannuation Regulation 1984 cl 6

Cases Cited:

Wesson v Jennings [1971] VR 83

Mason v Demasi [2009] NSWCA 227

Davis v Council of the City of Wagga Wagga

Texts Cited:

Chad Jacobi, Interpretation Acts Origins and Meaning (Thomson Reuters, 2019)

Category:

Principal judgment

Parties:

Michael Adderley (Plaintiff)
SAS Trustee Corporation (Defendant)

Representation:

Counsel:
Mr M. Weightman (Plaintiff)
Mr T. Ower (Defendant)

Solicitors:
Cardillo Gray Partners (Plaintiff)
SAS Trustee Corporation (Defendant)

File Number(s):

RJ 107/21

Publication restriction:

Nil

Judgment

1. The Plaintiff (Michael Adderley) brings proceedings in this court pursuant to s 21 of the Police Regulation (Superannuation) Act 1906 (NSW) (the 1906 Act) seeking to:

1. Set aside a decision of the Defendant dated 28 September 2020 determining that he did not provide notice of his injuries as required pursuant to s 10B(2)(a) of the 1906 Act; and

2. To substitute a decision that “The Plaintiff did notify the Commissioner of Police before the Plaintiff’s resignation and within 6 months of receiving the injury which caused the infirmity of the left knee injury.”

2. Consequential orders as to costs are also sought. ^[1]

   1. Statement of Claim at [1]-[4] under heading titled “Relief Claimed”.

Background

3. The Plaintiff was born on 26 January 1969 and is currently 53 years of age.

4. On 2 November 1987 he commenced as a trainee with NSW Police undertaking a 12-week course at the NSW Police Academy. The Plaintiff’s evidence was that as part of his training he was required to do running and aerobics daily. Three weeks into training he recalled sprinting and feeling something on his left leg. Following this, he recalled that he was sitting down and sought to stand up after a lecture and felt his left knee lock up. He proceeded to hop onto his right leg with his left leg out in the air to the nurse’s station. The nurse was said to have given him ice and requested that he rested.

5. The Plaintiff relies upon the contents of the nursing records as evidence of notification of the subject injury. The relevant records are reproduced below:

6. The Plaintiff stated in cross examination that he could not recall any physical examination when seen but did recall being asked questions. When taken to the notes of 23 November 1987 he accepted that it recorded that his knee was examined. The Plaintiff maintained that the reference in the notes to the right knee did not accord with his recollection which was that the injury was to his left knee.

7. The notes refer to the Plaintiff’s right knee on multiple occasions. There is mention of referral to a Dr Kowalski for re-assessment on 8 December 1987. No report from this doctor is available although the Plaintiff accepted that he likely saw a general practitioner. On 10 December 1986, there is a reference to the Plaintiff seeing a medical officer in relation to the right knee and it being x-rayed. The Plaintiff did not recall having an x-ray. There is a notation of an x-ray being sighted by a nurse on 10 December 1987 before the Plaintiff was found fit to resume training. The Plaintiff could not recall taking the x-ray to the nurses as it was so long ago. The Plaintiff accepted however that following 31 December 1987 he was accepted as fit to resume physical training.

8. The Plaintiff stated that following treatment as indicated above, he was instructed not to do any running activity and to just do upper strength work so as to enable him to complete a final assessment without further injuring his knee. The final assessment included completing within time limits an obstacle course, a 100-metre sprint and a 2.5-kilometre run. The Plaintiff stated that upon completing the course his knee was very sore and strapped. He ultimately passed as a graduating constable. Thereafter, he was posted to various police stations on general duties. According to police records which the Plaintiff generally accepted, ^[2] these included Walgett Police Station from 29 January 1988 to 9 December 1990, Hamilton Police Station from 12 December 1990 to 11 October 1994, Waratah Patrol from 12 October 1994 to 11 December 1995 and Carrington Police Station from 12 February 1995 to 07 October 1995. The Plaintiff stated that in general duties positions his left knee was sore and he suffered daily nagging pain. When he was involved in incidents involving his legs, his left knee was very painful. He stated that he had the same issue wherever he went in general duties.

   2. Exhibit 2.

9. Following a general medical examination on 26 November 2018 the police medical officer recorded that the right knee injury occurred at the academy in November 1987, lasted for 6 weeks and there were no problems since. The Plaintiff stated that he gave the history to get affirmed as a constable. He stated that he said whatever he needed to tell them and could not remember whether he referred to the right knee. The record discloses “NAD” following specific examination of the right knee meaning no abnormality was detected. ^[3] The Plaintiff stated that he remembered not telling the medical officer anything so he could get affirmed and he continued to “suck it up” and not the report injury to anyone.

   3. Parties agreed that “NAD” stood for no abnormalities detected where there was no evidence to the contrary.

10. Nonetheless he described being in constant pain that requires him to straighten and bend the left knee to provide relief.

11. The Plaintiff asserted that because of difficulties in performing physical duties he sought and was able to transfer to a position in Human Resources as Project Manager. According to the police records he remained there from 8 October 1995 to 9 August 1997. ^[4] He thereafter commenced in the Olympics Security Command Centre from 10 August 1997 to 21 August 2001 where he described doing project work, with his role that of a special investigator.

    4. These dates are from Exhibit 2. Exhibit 3 suggests that the Plaintiff commenced on 24 September 1995 and was extended to July/ August 1996.

12. The Plaintiff never reported any injury beyond the record referred to in the earlier mentioned clinical notes. He stated that he rarely took time off work for anything and that he did not seek any medical treatment or make a claim in relation to the left knee.

13. When the Olympics and Paralympics finished, the Plaintiff stated that he continued to work as part of a post games wrap up. He thereafter went on extended leave until 2 November 2001 before taking parental leave until 1 November 2011. ^[5] Thereafter he sought and obtained 12 months leave without pay transferring to Western Australia where his wife had a job in the wine industry. He accepted that he was not working as a police officer from 1 January 2001 to 1 November 2002. He resigned from the police on 2 November 2002 adding that he was not aware that he needed to give a reason for his resignation.

    5. Exhibit 4.

14. The Plaintiff stated that when the Olympic command came to an end, he was told he was to return to general duties at Surry Hills. This information was said to have been passed on to him by his Commander. Later, he stated that the Superintendent that he reported to told him this although he could not recall how this was formally communicated. This was said to be the reason he took parental leave. Whilst there was evidence of the Plaintiff submitting a parental leave application on 10 September 2001 indicating that, at the time, he was attached to the Human Resources directorate, ^[6] the Plaintiff stated that this is not where he was told he would be going. He could not recall when he says he was requested to return to general duties, nor protesting about doing so. He conceded not seeking restricted duties or seeking medical discharge.

    6. Exhibit 4.

15. The Plaintiff came to remain in Western Australia during 2002-2004. He conceded not seeking treatment for his left knee in Western Australia despite asserting that he was in daily pain.

16. On 2 February 2006, the Plaintiff was referred by Dr Lyn Reid of Charlestown Medical and Dental Centre to see Dr Peter Berton (orthopaedic surgeon). The referral states:

Thanks for seeing Mr Adderley with daily (l) knee pain following injury x 18 yrs, with crepitus. Pain with stairs. ^[7]

7. Exhibit A.

17. The Plaintiff accepted that this was the first medical treatment sought since being in general duties repeating that he “sucked it up” and lived with the pain and did not mention it to anyone at work in an official capacity. He could not recall if he had told Dr Reid that it was an injury occasioned at the Police academy.

18. On 7 February 2006, Dr Berton wrote to Dr Reid stating:

I reviewed Michael today. He I would think has either a trochlear chondral injury related possibly to heavy farm work or martial arts activities in his adolescence or has fat pad impingement.

He has had progressive and over the last six months significant increase in anterior knee pain with quite a marked impairment on his functional activity with the walking time in the order of thirty minutes. ^[8]

8. Exhibit A.

19. In cross examination, the Plaintiff conceded that he possibly did not tell Dr Berton that he was injured at the academy, but his knee was not injured doing heavy farm work or in martial arts activities. The Plaintiff could not explain why this was so if it was the case that he was in nagging daily pain for the preceding 18 years.

20. Dr Berton arranged for an MRI of the left knee which was reported on 20 February 2006 and recorded:

Low-density, linear, fibrotic band consistent with a suprapatellar pilca is noted. No other significant abnormality is seen.

21. On 3 March 2006, Dr Berton reported to Dr Reid that the Plaintiff has a normal MRI apart from a thickened suprapatellar plica which he thought was causing retro patellar pain. He stated that this was amenable to arthroscopic removal. ^[9]

    9. Exhibit A.

22. The Plaintiff was seen by Dr John Sage (orthopaedic surgeon) on 23 October 2007 at the request of Allianz Treasury Managed Fund (NSW). The Plaintiff was noted to have presented with discomfort on both sides of the left knee and knee cracks. Dr Sage stated from his point of view the one-page documentation of the Plaintiff’s problems recorded at the academy of what appears to be the right knee did not fit in with his complaints of the left knee. Dr Sage further recorded:

Mechanism

20.11.1987 in Police training he was doing aerobic training, which consisted of sprints and slow walking. This was repeated multiple times. After this finished, he was sitting down and as he went to get up he found that he could not straighten out the left knee. However, the documentation indicates that it was the right knee and it appears that he was seen by 4 different people who wrote down the right knee.

Progress to date

He finished his training, but he said that he kept quiet about ongoing problems.

He was then on general duties initially, if he had to run after anyone he said that he would just do it and the adrenaline allowed him to do it.

This appears to be basically staying much the same. Though it might be a little bit worse and I think that he is restricting himself more than in the past than when he was in the Police Force. That might be more a reflection of his sedentary lifestyle.

23. On examination, Dr Sage noted that there was an acute accumulated strain from excessive aerobic training and residual sensitivity but there was no pathology in the right knee. ^[10]

    10. Exhibit 5.

24. The Plaintiff conceded that Dr Sage did not record that he experienced a sensation in his left knee before getting up from the seated position whilst at the academy. Nonetheless, he maintained that this occurred.

25. The Plaintiff saw Dr Jason Hart on 5 March 2008 in relation to left knee pain. History was recorded as follows:

Injured left knee several years ago.

Was working as a policeman, initially injured whilst at police academy.

Insurance company have accepted liability for arthroscopy (to right knee). ^[11]

11. Exhibit C.

26. Dr Hart referred the Plaintiff to see Dr Michael Tarrant (orthopaedic surgeon). The latter reported on 20 March 2008 which recorded:

About 20 years ago he was in the Police Academy and he had been sitting in a lecture theatre. I gather he went to get up to leave and his knee locked and he fell over. He was then seen by a physiotherapist in Goulburn, which is the location of the Police Academy. He subsequently graduated and I gather the requirement was for him to graduate fully fit. He hasn’t been able to run for years and any kind of jogging tends to cause a grating sensation in his knee. Doing any kind of yard work is also painful.

About 1 ½ years ago he was seen by Dr Berton and there was a question as to whether he should have arthroscopy. He doesn’t have any problems with his right knee. In respect to his left knee he was seen by Dr Sage and was also seen by other doctors. At some stage there were three or four letters involving terminology referring to his right knee, which he states is incorrect. He has never had a right knee problem and certainly in orthopaedics it is not uncommon for right and left to be mixed up and for typographical errors to be made or dictation errors and so on and so forth. He has never had an injury, investigation or any treatment of his right knee and the matter is something of a non-issue. I gather it is a sticking point in respect to workers compensation liability. ^[12]

12. Exhibit A.

27. The Plaintiff stated that he would have also mentioned the physical activity he undertook at the academy and the slight sensation that he described experiencing. He stated that he does not know why Dr Tarrant did not record this.

28. Dr Tarrant proposed carrying out an arthroscopy in relation to the left knee. This was carried out on 8 April 2008 and reported by Dr Tarrant on 14 April 2008. The Plaintiff in evidence suggested Dr Tarrant performed two arthroscopies on him although Dr Tarrant’s report of 14 April 2008 references only one on 8 April 2008.

29. Whatever be the case, the Plaintiff denied occasioning any injury to the right knee and asserted that the injury first recorded in the clinical notes of 23 November 1987 was in fact referrable to a left knee injury.

30. On 18 April 2016, the Plaintiff was referred by his then solicitors to Dr Anthony Lowy (Occupational Physician) who reported on 21 April 2016. The history recorded included:

After two weeks if intensive physical training he was sitting in a lecture and as he got up he felt acute left knee pain which gave way and he fell forward.

There was considerable initial pain and slight swelling and Mr Adderley had difficulty with his gait thereafter. ^[13]

13. Exhibit A.

31. The Plaintiff conceded that there was no mention of the sensation that he says he experienced prior to getting up from the seated position at the academy but did not know why it was not mentioned. He acknowledged that he may not have mentioned this but maintained that it happened.

32. Dr Lowy noted that the Plaintiff had an arthroscopy in 2006 which was of no benefit. Dr Berton does not reference such procedure being carried out by him nor did Dr Tarrant obtain such a history.

33. On 12 May 2016, the Plaintiff applied for a hurt on duty claim to the Defendant. This was received by the Defendant on 16 May 2016. ^[14]

    14. Defence at [9].

34. By letter dated 28 September 2020 the Defendant determined that the Plaintiff did not notify the Commissioner of Police before his resignation and within 6 months of the injury which caused the claimed infirmity of a ‘left knee injury’ and hence did not provide notice under s 10 B (2) (a) of the 2006 Act

35. The Plaintiff’s wife Kristine Adderley gave evidence that she met her husband in the early 1990s and commenced a relationship with him in 1994-5, before marrying him in 1998. She stated that she first became aware of her husband’s left knee injury early after going out. She recalled that it was uncomfortable requiring him to stretch out the knee and put it back in. Mrs Adderley was unaware of any problem with the right knee. At the time of the Plaintiff’s resignation, she conceded that he did not say he could not do the work of a police officer. From early 1990s to 2002 she stated that the Plaintiff mentioned that he was in pain, but it was not constant, and she was not too worried. Mrs Adderley indicated that the Plaintiff could have seen doctors around 2008.

Issues

36. The Plaintiff’s case is essentially that the notification on 23 November 1987 that was recorded by the nurse erroneously by referring to the right knee as opposed to the left knee but otherwise was to the effect of the prescribed form provided in the Police Superannuation Regulation 1984 Schedule 1 and accorded with s10B(2)(a) (a1) of the 1906 Act.

37. The Defendant argued that a notice of injury to the left knee has not been given to the effect of the prescribed form under s 10B(2)(a) of the 1906 Act and to the extent that the Plaintiff notified injury this was to the right knee.

Consideration

38. At the time notice was said to have been given section 10B(2) of the 1906 Act provided:

(2) An annual superannuation allowance shall not be granted under section 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

(a1) Where the regulations so require the notification was in or to the effect of the prescribed form: and

(b) 2 members of the Police Medical Board have 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.

39. Clause 6 of the Police Superannuation Regulation 1984 also required:

A notification of injury under section 10B(2)(a) of the Act shall be in or to the effect of the form in Schedule 3.

40. The Schedule 3 form required several particulars relevant to the injury to be completed. It also required the notifier (being the former member) to declare the particulars provided were correct by signature.

41. The background which generally led to the provision in legislation of notification “to the effect of” a form is discussed in by Chad Jacobi in Interpretation Act Origin and Meaning (Thomson Reuters 2019). There the author stated that the rule of interpretation requires the Court to consider the substance of the departure from the form and the seriousness of the consequences to the recipient. ^[15]

    15. Chapter 2.

42. In another statutory context, Menhennitt J in Wesson v Jennings [1971] VR 83 at p85 considered the meaning of the words “to the effect of”” and summarised the law as follows:

The conclusion I have reached is, I think, pointed to by the reasons for judgment of Isaacs and Gavan Duffy, JJ, in Crowley v Templeton [1914] HCA 6; (1914) 17 CLR 457, at p. 466; 20 ALR 51, at p. 53. The High Court had under consideration the provisions of the Transfer of Land Act that the proprietor of freehold land under the operation of the Act may lease the same for a specified period by signing a lease thereof in the form in the Ninth Schedule thereto. The words "to the effect of" were not then included in the Transfer of Land Act. None the less, in their joint judgment, their Honours said: "Slavish adherence to the forms is not demanded. Technical and immaterial departures from them do not deprive the dealing of efficacy. Substantial compliance is sufficient." That being said of a legislative provision which was confined to the words "in the form", it seems to me that, where there are the additional words "to the effect", substantial compliance with the Schedule is sufficient.

This conclusion is also in accordance with what the Full Court said in Hanlon v Lynch, [1968] VicRp 80; [1968] VR 613, at p. 617, where speaking of the relevant legislative provisions in their present form the Court said:"... a certificate cannot be described as 'given in accordance with' that sub-section [i.e.subs(2)] unless its substance, signature and delivery are such as are provided for in that sub-section." The use of the word "substance" was, it appears to me, a recognition of the effect of the words "to the effect of", in subs(2), and in the present case I conclude that the certificate was in substance as provided for by s408A(2).

43. Clause 6 of the Police Superannuation Regulation 1984 clearly envisaged that notification be in writing and declared as correct by the notifier (by signature). The significance of this is to be seen in the context of a statutory scheme which required that before an annual superannuation allowance could be granted, the Plaintiff had to be certified as incapable from a specified infirmity of body or mind of discharging the duties of office at the time of resignation or retirement from office. The wording of s 10B changed between the time notice was given and the date of resignation. At the time of the Plaintiff’s resignation, s 10B(2)(b) of the 1906 Act provided:

(b) STC (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 the member’s office at the time of the member’s resignation or retirement

44. A new Section 2C had also been added to read:

(2C) In this section:

Medical advice means the advice of:

(a) 2 members of the Police Medical Board, or

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

45. Notwithstanding that, the notification of injury was always required to be in or to the effect of the form, declared as correct and provided to the Commissioner of Police so that it could be used by another body to carry out the required certification function. The injury to be notified was the “injury which caused…infirmity of body or mind.’’

46. Plainly, the notification recorded in the aforesaid clinical note cannot be described as to the effect of the form in Schedule 6. Not only did it not refer to a left knee injury, but it was not declared as correct by the Plaintiff such that it could be reliably used for the certification function.

47. Beyond this, I cannot be satisfied that there was an injury to the left knee occasioned in 1987 by the Plaintiff whilst at the academy. The clinical notes make repeated reference to the right knee under different handwriting. There is no reference to the left knee. Whilst the Plaintiff could not recall the nurses’ recording notes at the time of examination, the content of the notes indicate that it is more likely they were taken proximally. I am conscious of the caution to be exercised in relying on accounts in clinical notes highlighted in Mason v Demasi, [2009] NSWCA 227 per Basten JA at [2] and Davis v Council of the City of Wagga Wagga [2004] NSWCA 34, per Mason P. Even so it is unlikely that the repeated references to right knee including multiple examinations and referrals would not have resulted in a correction if in fact they were erroneous, and it was the left knee that was injured.

48. Moreover, in subsequent medical examination on 26 November 2018 by the police medical officer, it was recorded that the right knee injury occurred at the academy in November 1987 and lasted for 6 weeks. What followed was a general examination and the comment in relation to the right knee that no abnormalities were detected. If the right knee was inaccurately referenced as the site of the injury as claimed, the Plaintiff’s explanation for not correcting it seems implausible. I cannot accept his evidence that he did not say anything to get confirmed and he continued to “suck it up.” Nor do I accept that continued to work including in general duties despite experiencing symptoms referable to the 1987 injury which he did not report or seek medical attention.

49. Overall, the Plaintiff’s evidence was not reliable. The impression that I formed was that his account was a reconstruction in which he sought to relate the undoubted problems he later experienced with his left knee to what happened in 1987. This corresponds with his inability to recall telling Drs Reid and Berton about the injury at the academy when he first consulted them and the general hesitancy of his answers particularly in cross examination. Whatever be the circumstances that led to his resignation, I am not satisfied that it had anything to do with any injury to the left knee occasioned in 1987.

50. I found the evidence of Mrs Adderley to be at times uncertain, hesitant, and unreliable. This was particularly as to the details of discussions with the Plaintiff as to his resignation from the NSW police force, the onset of left knee symptoms and the timing of medical treatment. Overall, her evidence did not advance the Plaintiff’s position.

51. There is no other record of left knee injury whilst at NSW Police and the Plaintiff did not seek any medical treatment before resignation. I do not accept that his resignation was prompted by a proposal that he return to police general duties.

ORDERS

52. For these reasons the Court:

1. Declines to make the orders sought by the Plaintiff.

2. Confirms the Defendant’s decision that the Plaintiff did not notify the Commissioner of Police before his resignation and within 6 months of the injury which caused the claimed infirmity of a ‘left knee injury’ and hence did not provide notice under s 10B(2)(a) of the 1906 Act.

Endnotes

Decision last updated: 09 May 2022