Miles v SASTC

[2016] NSWDC 56

District Court

New South Wales

Medium Neutral Citation:	Miles v SASTC [2016] NSWDC 56
Hearing dates:	1 April 2016; 7-8 April 2016
Date of orders:	11 April 2016
Decision date:	11 April 2016
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Decision of the defendant made on 29 January 2015 confirmed.
Catchwords:	POLICE SUPERANNUATION – Further application to increase superannuation allowance – Necessity to show a material change of circumstance – Whether supervening non-pensionable incapacity to be taken into account – Significance of change of residence to allegedly lesser area of employment   STATUTORY INTERPRETATION – What use can be made of extrinsic materials – Explanatory notes and Second Reading Speeches
Legislation Cited:	Interpretation Act 1987 Police Regulation Act 1899 Police Regulation (Superannuation) Act 1906 Police Regulation (Superannuation Appeals) Amendment Bill 1979 Workers’ Compensation Act 1926 Workers’ Compensation Act 1987
Cases Cited:	Aitkin v Goodyear Tyre and Rubber Co (Australia) Ltd (1945) 46 SR (NSW) 20 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA41; (2009) 239 CLR 27; 260 ALR1 Certain Lloyds Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 Collins v Days Transport Service Pty Ltd (1999) 18 NSWCCR 116 Collins v SASTC [2012] NSWDC 225; (2012) 11 DDCR 198 Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 McDougall v SASTC (Unreported, 18 October 2004, RJ9881/03) Moran Health Care Services v Woods (1997) 14 NSWCCR 499 (C.A.) Wheadon v SASTC (unreported, 19 September 2014, matter RJ558/13) Wilson v SASTC (unreported, 1 November 2007, matter RJ369\06) Wilson v State Rail Authority of NSW [2010] NSWCA 198; (2010) 78 NSWLR 704
Category:	Principal judgment
Parties:	Peter John Miles (Plaintiff) SAS Trustee Corporation (Defendant)
Representation:	Counsel: Mr M Weightman (Plaintiff) Mr T Ower (Defendant)   Solicitors: Harris Wheeler (Plaintiff) Rod Blume (Defendant)
File Number(s):	RJ241/15
Publication restriction:	No

Judgment

1. HIS HONOUR: This is an application under s 21 of the Police Regulation (Superannuation) Act 1906 (“the Act”). The plaintiff seeks an increase in his pension entitlement under s 10(1A) of the Act. This is the plaintiff’s second application of this nature to this Court. His first application was in matter number RJ136 of 2005. I heard and determined that application on 2 February 2006. Initially, the defendant had determined that the plaintiff’s pension entitlement under s 10(1A)(b) entitled him to a total pension of 81% of the salary of his office. I set aside the decision of the defendant which had been made on 30 September 2004 and I determined that the plaintiff’s total pension entitlement was 82.55% of the salary of his office. Unfortunately, my reasons for judgment of 2 February 2006 have not been uploaded onto Caselaw or otherwise published. Because those reasons set out the background to the present application and the plaintiff’s situation as at 2 February 2006, I adopt those reasons and annex them to this judgment as annexure A.

2. The plaintiff made a further application to the defendant, dated 8 November 2013. That application had a covering letter from the plaintiff’s solicitors of 12 November 2013. Those two documents are exhibit Z in these proceedings. Question 27 of the application form is this:

“Are you currently incapacitated for work outside the Police Force to any extent?”

The answer provided by the plaintiff was:

“Yes, totally incapacitated”.

Question 29 of the application is this:

“Have you previously applied for a pension increase and are now in receipt of a pension amount of less than 85% of your attributed salary of office?”

The answer supplied by the plaintiff to that question was this:

"Yes, physical injuries have deteriorated."

3. The Police Superannuation Advisory Committee (PSAC), constituted under s 2H of the Act, pursuant to a delegation from the defendant under ss 2I and 2J of the Act, considered the plaintiff's application on 29 January 2015. PSAC declined to increase the plaintiff's pension above the rate that I fixed on 2 February 2006. A letter containing the defendant's decision, dated 2 February 2015, is addressed to the plaintiff's solicitors. A copy of it is exhibit AA before me. The plaintiff considers himself aggrieved by that decision and brings the present application.

What the plaintiff must prove

4. An initial thing that ought be considered is: what must the plaintiff prove? The authorities currently establish that the plaintiff must prove a change of circumstances since the last relevant decision, i.e., the decision that I made on 2 February 2006. The commencement point for this line of authority is the decision of Quirk DCJ in McDougall v SASTC (Unreported, 18 October 2004, RJ9881/03). As that decision has not been uploaded onto Caselaw or reported I should spend some little time pointing out the facts of the case and her Honour's ruling.

5. McDougall was medically retired from the NSW Police in 1993. He was certified as suffering from the infirmities of chronic anxiety disorder and chronic substance abuse. In December 1997 the Commissioner of Police determined that the suffering by McDougall of his chronic anxiety disorder and chronic substance abuse was caused by his having been hurt on duty. In February 1999 McDougall made an application to the present defendant for an increase in his pension under s 10(1A)(b) of the Act. That application was refused by the STC. That was the subject of an application to the Compensation Court of New South Wales pursuant to s 21. The case was "settled". The Court made orders by consent setting aside the decision of the defendant and replacing it with a decision granting an increase in the plaintiff's pension to a total of 77.5% of the salary of his office as at the date of discharge. The application which came before Quirk DCJ was an application for a further increase originally made by McDougall in a letter of 17 September 2002.

6. Of McDougall's second application to the defendant, her Honour said this:

"The appellant again cited his chronic sleeping problems and also his hypertension. In that letter, the appellant stated, 'my condition has improved somewhat, but I do not think I will ever return to good health again'. He also referred to his age, which was then 55 and that his employment prospects would be very slim even if he were in good health."

Her Honour then recited the declining by the defendant of McDougall's second application.

7. Commencing on p 8 her Honour said this:

"The appellant's own evidence is that his condition has been much the same over the last 25 years, perhaps in some ways improved - that is insofar as his insomnia is concerned, although he cites his age and other health problems as causing him more difficulty in 'handling it.'

However he does not really point to any specific way in which such difficulty would or could hinder his ability to work and as far as I can see his history to the doctors in terms of his capacity to work has been the same over the years since 1999 up to the present time.

Mr Ower relies on the principles of res judicata and estoppel or Anshun estoppel as operating to prevent the appellant from re litigating his application for an increase in his pension. Mr Dailly for the appellant submits that the settlement between the parties in 2002 may have been reached for all sorts of reasons and that there has been no judicial determination of the matter in issue at the time and which is again in issue before me.

The [Act] provides, as I have said, for an increase in the pension under s 10 to be made by the STC commensurate with member's incapacity for work outside the police force and as has been submitted by Mr Ower, and which is not disputed by Mr Dailly, the manner in which that section is to be interpreted is set out in Lembcke v SAS Trustee Corporation.

Section 10(1D) provides for the STC to vary any such determination at any time. The matters that the STC takes into account when considering an application to vary are not set out in the Act.

It would be extraordinary if the STC could simply vary a pension at will. There must be, in my view, some evidence brought before this Court on an appeal from a decision of the STC as to a change in circumstances or fresh evidence.

The evidence before me from the appellant is that, as I have already said, his condition is much the same. The facts are the same except for the age of the appellant, which obviously has increased since 2002, the date of the last settlement.

He is now 57 years of age and as even Dr Wade concedes, age is and could be a negative factor in the appellant or anyone else I suppose at the age of 57 finding and indeed performing some work.

However, age was a factor which was also relied upon by the appellant at the time that the last appeal from the decision of the STC came before the Court in 2002. Whilst it may be that there were reasons for the parties entering into the settlement which provided for an increase of the pension from 72.5% to 77.5%, there is no evidence before me of those reasons.

In my view, there has been no evidence of change of circumstances or fresh evidence, which would enable me to come to a finding other than that which was agreed between the parties - that is, that the 77.5% pension was commensurate at the time with the incapacity for work outside the police force, or that his incapacity had increased.”

8. What fell from her Honour as to the need for a proof of a change of circumstance or fresh evidence, was applied by Ashford DCJ in Wilson v SASTC (unreported, 1 November 2007, matter RJ369\06). Unfortunately I do not have a copy of Judge Ashford’s reasons for judgment in Wilson but what her Honour said has been subsequently quoted in another judgment which I shall soon cite.

9. In Collins v SASTC [2012] NSWDC 225; (2012) 11 DDCR 198, I said commencing at [15]:

“[15] The first thing to consider is what must be proved. A similar situation to the current case arose in McDougall v SAS Trustee Corporation (unreported, 18 October 2004, RJ9881/03), a decision of my colleague, Judge Quirk. Her Honour pointed out that under s 10(1D) the defendant might make at any time a determination of an additional amount payable under s 10 of the Act, and also vary any such determination at any time. Her Honour went on to say this:

"The matters that the STC takes into account when considering an application to vary are not set out in the Act.

It would be extraordinary if the STC could simply vary a pension at will. There must be, in my view, some evidence bought before this Court on an appeal from a decision of the STC as to a change in circumstances or fresh evidence."

[16] As this Court can only do what the STC ought to have done, the inference to be drawn from what her Honour said is that before the STC varies a pension there must be before it some evidence of a change of circumstances or some fresh evidence. Her Honour's decision was followed by Ashford J in Wilson v SAS Trustee Corporation (unreported, 1 November 2007, RJ369/06). Her Honour specifically agreed with Judge Quirk's reasoning. Unfortunately, neither of those two decisions has been reported, but her Honour Judge Quirk's decision ought to have been reported. I mean no criticism of the reporting service in saying that; it is probably the case that Judge Quirk did not send a copy of her decision for reporting.”

10. In Wheadon v SASTC (unreported, 19 September 2014, matter RJ558/13), the matter was considered by Gibb DCJ. On 1 November 2001, Wheadon applied to the defendant for an increase in his pension allowance to 100% the salary of his office backdated to 16 March 1998. That application was in effect under s 10(1A)(c) of the Act. That application was considered by the defendant on 30 April 2002. The defendant decided to increase the plaintiff’s pension allowance from 72.75% to 81% of the salary of his office with effect from 1 November 2001, the date that the defendant received the application to increase the pension. Although the pension increase had been sought under s 10(1A)(c), the determination by the defendant was under s 10(1A)(b) of the Act. Wheadon did not appeal that determination. Wheadon then made a further application to the defendant which was decided by the defendant on 3 June 2013. On that occasion the defendant increased Wheadon’s pension to 92% the salary of his office, payable to him from 18 February 2013. In other words, the defendant accepted that Wheadon was totally incapacitated for work outside the police force and granted him an allowance under s 10(1A)(c) of the Act. He then made an application to this Court under s 21 which came on for hearing before Gibb DCJ and led to the decision to which I have referred.

11. Commencing on p 10, her Honour said this:

“If the plaintiff’s submissions be right, there is no change in circumstances and no fresh evidence, and nothing has changed since the 2002 determination. The proper approach is to dismiss the plaintiff’s application in whole. The Police Superannuation Advisory Committee should not have made the decision that it did. As the defendant submitted:

‘OWER: …I’m just concentrating my submission on there being no change and, if there is no change, then technically there should be no change to the 81% over the whole period.’

This submission rests upon an issue that has been explored in judgments by other judges of this court, but not, it seems, by the Court of Appeal. On 18 October 2004, Quirk DCJ said in McDougall v SASTC: [Her Honour then quoted most of what I have quoted in [7] above.]

In November 2007, Ashford DCJ addressed a similar problem in Wilson v SASTC and applied the reasoning above:

‘McDougall v SASTC is a decision of Judge Quirk, unreported, on 18 December 2004 in respect of an application to increase the pension entitlement…

Her Honour was of the opinion the plaintiff had not demonstrated any change in circumstances or fresh evidence which could justify an increase in pension entitlement as sought. The plaintiff told the Court his condition remained much the same and her Honour came to the view that having regard to s 10(1D) which provides for the STC to vary any determination at any time it would be extraordinary if the STC could simply vary a pension at will, and for a plaintiff to succeed in such an application there must be some evidence before the Court such as would demonstrate a change in circumstances or fresh evidence. I agree with her Honour’s reasoning’.

It is not just judicial comity which dictates that I follow that line of reasoning. It accords with principle and common sense. The need for finality in decision making is not quarantined exclusively to litigation. It also has significance in the context of a statutory trust. McColl JA said in SASTC v Cox [2011] NSWCA 408:

‘14. As Basten JA (Allsop P and Young JA agreeing) observed in Swift v SASTC [2010] NSWCA 182 (at [10] - [11]) (“Swift”), while s 10 ostensibly took the form of the operative provision pursuant to which a disabled member of the force “may be granted” a relevant gratuity or allowance, it ‘contains no unequivocal conferral of power to make such a grant’ and s 10(1B) is “the closest to an express power” to grant an annual superannuation allowance to be found in the Police Superannuation Act.

[…]

94. The appellant is the “trustee” of the Fund. There is no reason to think the legislature intended to use the expression in other than its legal and technical sense (cf Bathurst City Council v PWC Properties Pty Ltd [1998] HCA59; (1998) 195 CLR 566 (at 585 - 586)), although it must be accepted that the Fund lacks the element of the “traditional trust [as] one under which the settlor, by way of bounty, transfers property to trustees to be administered for the beneficiaries as the objects of his bounty [and in respect of which] normally, there is no legal relationship between the parties apart from the trust [and] the beneficiaries have given no consideration for what they receive.’:…

The [Act] allows a period of 6 months after the person is notified of a decision to apply to the District Court for redetermination. It would be odd if it were open to seek a fresh determination (without having appealed that determination) without a change in circumstance or fresh evidence. I apply the same approach as was taken by Ashford DCJ in Wilson v SASTC.”

12. There are thus four judges of this Court who have adopted this approach i.e. Judge Quirk, Judge Ashford, Judge Gibb and I. On a second or further application under s 10(1A) of the Act it is incumbent upon the plaintiff to prove a material change of circumstance prior to his or her being entitled to a further determination of the quantum of the plaintiff’s pension entitlement.

Facts

13. I turn now, of course, to the facts of the current application. At the time I gave judgment on the 2 February 2006 the plaintiff was living at Duns Creek which is near Port Stephens. In [22] of my earlier reasons I pointed out that the plaintiff resided in the lower Hunter Valley for most of the 28 and a half years when he had been a member of the NSW Police Force. Commencing at [36] of my earlier reasons I pointed out that one question was whether the plaintiff was fit to work as a crime prevention officer for the local council. At [37] I said this:

"The Port Stephens local government area is a relatively large one and the plaintiff's place of abode is on the boundary of that local government area. The plaintiff would have to drive from Duns Creek to Nelson Bay to Karuah to Tea Gardens and all areas around Port Stephens. That would require fairly lengthy driving in my view and that is one of the things which medical evidence persuades me the plaintiff should not do."

14. Shortly after I gave judgment, the plaintiff moved to the Nambucca Valley and at the time of giving oral evidence before me, 1 April 2016, and also 7 April 2016, he was living in Bowraville. It would appear that the Nambucca Valley is the plaintiff's native area in this State. He attended Macksville High School until 1971. During the last period of his schooling he worked at the Nambucca Fruit Shop at Nambucca Heads as a sales assistant, that is between 1969 and 1971. After leaving school, his first job was as a truck driver for Macksville Freight at Macksville between 1971 and 1972. He then went to Sydney to work as a trainee auditor between 1972 and 1973 but in 1973 returned to Macksville to work as a bank teller for a few years prior to his joining the NSW Police Force on 17 March 1975.

15. In his oral evidence the plaintiff told me that his daughter had a health food shop at Nambucca Heads. This was originally called Hibiscus Health Foods but in more recent years has been renamed Panacea Wholefoods. In essence, since the plaintiff and his wife moved to Bowraville, his wife has been running the health foods business at Nambucca Heads.

16. There is really no dispute that the plaintiff helps out at the health food shop from time to time, that he in fact helps out his wife in the running of her business. The extent that he does so is in dispute but in his evidence in cross-examination the plaintiff eventually admitted on p 42 of the transcript that he works there or spends time at the shop or for the shop amounting to between two hours and three hours per week or averaging between two hours and three hours a week. Essentially the plaintiff helps his wife with maintaining the "books" of the business, even though these are now often kept electronically or on computer. The plaintiff is in fact doing some bookkeeping work, using traditional language, and he assists his wife by preparing business activity statements which must be made quarterly. The plaintiff in the same place in the transcript admitted that his wife would have to pay somebody else to do that work if he himself did not do it. Otherwise the plaintiff has not been doing any other physical work for anybody, nor, in my view, on a proper analysis of the evidence, has he looked for any other work.

14. Once he was provided with a copy of my earlier reasons for judgment, the plaintiff made enquiries about obtaining work as a doorman or bar useful at local RSL clubs. He made enquires from his uncle, Mr Steve McCudden. Mr McCudden is a retired serviceman. He is 98 years old. He swore an affidavit of 6 April 2016. It became exhibit EE. Mr McCudden was not required for cross-examination. Mr McCudden is a veteran of the Second World War. He has been a member of Nambucca Heads RSL for more than 50 years. In his affidavit he stated this:

“8. Approximately 8-10 years ago, I cannot recall the exact date, Peter Miles approached me about obtaining employment as a doorman. At the time he said to me words to the effect:

‘Steve, you are a member of the Nambucca Heads RSL, do they have any jobs at the RSL as a doorman?’

9. I responded to him with words to the effect:

‘The doorman at the RSL doesn’t just sit at the door. The doorman helps lift and unload the kegs and cartons of beer that get delivered or need to be restocked in the fridge. You couldn’t physically do that, could you? Besides, I don’t think he’ll give up his job for you.”

The first thing to note is that, clearly, there was no vacancy for a doorman at the Nambucca Heads RSL Club about ten years ago, that is, in 2006. Secondly, Mr McCudden was of the view that the doorman at the RSL club helped out unloading kegs and cartons of beer but whether that would still be the case of not, I do not know. Practices in hotels and clubs have changed remarkably over the last decade. In any event, the plaintiff also made enquiries of Mr Mick McKay who was the manager of the Macksville RSL Club at the time but there was no job available for the plaintiff at that RSL club. In any event, it appears that the plaintiff himself believed that the doorman at the Macksville RSL Club may have required to act as a “bouncer” from time to time and probably also believed that he would be called upon to assist when kegs of beer and/or cartons of liquor or other beverages were delivered to the club and needed to be stored in refrigerators or the like. I accept the plaintiff made enquiries about that work, prompted by the suggestion contained in my reasons for judgment of 2 February 2006, but has otherwise made no application for work.

Medical evidence

18. I turn now to consider the medical evidence amassed since 2 February 2006. On 27 June 2006 the plaintiff saw Professor YAE Ghabrial, an orthopaedic and spinal surgeon at Newcastle at the request of his solicitors, who are also based in Newcastle. The evidence contains two reports from Professor Ghabrial. One is a general report, the second assesses whole person impairment as well as an entitlement for various lump sums that might be payable under the Table of Disabilities that once was part of s 66 of the Workers’ Compensation Act 1987. On examination, Professor Ghabrial found “moderate paraspinal lumbar spasm”. No one else has ever made that finding and it appears to be abnormal and one must wonder whether Professor Ghabrial was merely referring to voluntary muscle guarding. Professor Ghabrial said that straight leg raising in the short sitting and supine positions was 80 degrees but then says that there was a positive sciatic stretch test on the left hand side but there was no such finding on the right hand side. No other medical practitioner who has examined Mr Miles has ever found any neurological deficit and I am not persuaded that there has ever been a positive sciatic stretch test on the right hand side when the plaintiff’s low back was being examined. Professor Ghabrial also examined the plaintiff’s right knee. He found, as most other practitioners have, that there was retro-patellar crepitus but then went on to find that there was slight wasting of the quadriceps group of muscles on the right hand side which nobody else has ever found and I am not persuaded that there has ever been such wasting.

19. Professor Ghabrial went on to express this opinion:

“I believe that he remains unfit for activities involving any lifting, bending and twisting as well as activities involving excessive use of the left upper limb or any use of the left upper limb above the shoulder level. However, regarding the right knee, I believe that he is not fit for activities involving any running, climbing ladders, going up and down stairs excessively, walking on uneven grounds, standing for lengthy periods or walking for long distances.

I would classify Mr Miles to be 95% unfit for any type of employment on the scale of 0%-100%[.]

I have reviewed Dr Plowman’s report dated 11 September 2002 and believe that his condition has deteriorated since that report.”

Bearing in mind my view of Professor Ghabrial’s findings, I am not convinced that there was the deterioration that the professor suggests. In any event Professor Ghabrial’s opinion of a 95% incapacity is a mere ipse dixit. Furthermore, there is nothing in what Professor Ghabrial says that is inconsistent with the finding I expressed at [40] of my earlier reasons that the plaintiff is fit only to do part time clerical or sedentary work or the finding at [48] of my earlier reasons that the plaintiff was capable of doing some work on a part-time or casual basis of a sedentary or administrative nature, in particular, work where he could sit or stand or move about, or work that could be described as casual administrative work doing books for a small business where he could use such computer skills as he had acquired when serving as a police officer and could perhaps call on his old background as a trainee accountant and bank teller, where he might be able to obtain some book keeping, a few mornings a week. Indeed, the plaintiff does do some bookkeeping work, as I have already stated, for his wife’s business.

20. One of the issues agitated in the evidence before me is when was it that the plaintiff move to the Nambucca Valley. The plaintiff was very unsure as to when that moved occurred. However, I do know that he came under the care of Dr Peter Williams at Nambucca Heads on 8 June 2006. The inference to be drawn is that the plaintiff moved to the Nambucca Valley prior to this date. Dr Williams commenced to treat the plaintiff for multiple solar keratoses. The plaintiff was to see Dr Williams every two months for the treatment of solar keratoses with liquid nitrogen. The plaintiff saw Dr Williams about solar keratoses not only on 8 June 2006 but on 1 August 2006, a date which may have been 10 November 2006 and 24 January 2007. The attendance in November 2006 was not only for the removal of solar keratoses but was also for the completion of a form for the plaintiff’s application for a driver’s licence. On an unclear date in June 2007 the plaintiff consulted Dr Williams about going to India in the following month with his family and he had certain injections and I assume inoculations performed. A second set of inoculations was carried out on 26 June 2007. On the plaintiff’s return from India he saw Dr Williams again on 31 August 2007 and obtained a referral to Mr Roger Peters, a psychologist in Newcastle. Dr Williams also prepared a GP mental health care plan.

21. The plaintiff came under the care of Mr Martin Peters on 12 September 2007. I have not made any mistake. The referral was in fact to Mr Roger Peters but the plaintiff went in fact under the care of Mr Martin Peters. According to Mr Peters’ report of 3 March 2008 (mistakenly typed as 3 March 2007) Mr Peters was treating the plaintiff for post-traumatic stress disorder (PTSD). Under the heading “Background”, Mr Peters said this:

“Mr Miles presented as a mild mannered 53 year old man. He told me that he had been medically discharged from the police due to a number of orthopaedic injuries he had sustained during his career. However, he regards his psychological injuries as adversely affecting him and being even more debilitating than the orthopaedic injuries he suffers.

Mr Miles explained that he had been reluctant to raise his psychological issues previously ‘while he was in the job’ as he was concerned that the stigma associated with mental illness may cause him to be negatively perceived by his peers. Mr Miles said that he had come from ‘old school’ policing and that you simply did not want to be seen as ‘weak’.

Mr Miles stated that he wished he could just put all the traumas and ‘ghosts of the past in a drawer and leave them behind’. He said that he psychological wellbeing had deteriorated further since being medically discharged. He has been unable to work and he suggests that he understands that this may be because he has had more time to think about things.

The catalyst for him [sic] being referred to me was in fact the recent suicide of a police colleague and friend. He believes that this triggered memories of other suicides and traumatic events. For instance, he also gives an account of intrusive thoughts that include driving past dead kangaroos on the road and then thinking he sees dead bodies. I might point out that this is a typical, if not unfortunate, type of connection by those who suffer PTSD. Obviously he has disclosed so much more to me during therapy, however, I include this particular information to indicate the significant level of psychopathology this man suffers.”

22. Later in his report Mr Peters goes on to refer to the plaintiff giving him “a harrowing history of traumatic incidents”, the sort of history which this Court can expect nearly every former member of the Police Force to be able to give. Mr Peters was vehemently, and I use that adverb advisedly, of the view that the plaintiff’s PTSD was caused by his having been hurt on duty. Furthermore, it was also his view that the plaintiff’s psychological condition was such as to incapacitate him for work irrespective of the plaintiff’s orthopaedic problems. Mr Peters then expressed the view that the plaintiff was “85%” incapacitated for work on the basis of his psychological condition.

23. On 12 June 2007 the plaintiff had been seen by Professor Gordon Kerridge, an orthopaedic surgeon at the request of the defendant. One will note that this was prior to the plaintiff’s first seeing Mr Peters on 12 September 2007 and probably prior to the plaintiff’s leaving Australia to go to India on holiday with his family. In the introduction to his report, Professor Kerridge said this:

“I should mention at this stage that this was the most frustrating history and examination that I have ever been involved in because Mr Miles appeared to have a genuine loss of memory. He had no idea of dates. As mentioned in the letters for examining doctors I have filled in that he needs urgent assessment by a psychiatrist or psychologist.”

In other words, as at 12 June 2007, Professor Kerridge believed the plaintiff was in urgent need of psychiatric treatment. A few things should be noted about the doctor’s physical examination. As far as the plaintiff’s neck was concerned the plaintiff complained of difficulty in sleeping and of an occipital headache that went over the top of the scalp finishing up behind the plaintiff’s eyes “like a migraine”. That is not typical of an occipital headache caused by a problem in the cervical spine. As far as the low back was concerned the plaintiff complained of low back pain “like a knife sticking in him”. There is also pain at the T8 level. As far as the recurrent dislocations of the plaintiff's left shoulder were concerned, the plaintiff gave Professor Kerridge a history of 20 dislocations over the past two years. That is less than one a month which must be contrasted with the history given to Dr John Sage on 31 July 2003 of dislocations at least once a week.

24. On examination of the plaintiff's lower back Professor Kerridge found inconsistency and what appears to be the feigning of symptoms. That is set out in this finding:

"He could walk on his tiptoes and on his heels with his feet dorsiflexed but with an extremely severe limp, which had not been present when he came into the room."

In his summary, Professor Kerridge referred to inconsistencies, a confusing history and a lack of any investigations. I should add that over the past ten years the plaintiff does not appear to have had any active treatment from anybody for his orthopaedic problems, that is, his neck pain, back pain, left shoulder problem and right knee pain, and if there have been investigations, they have been of no practical utility whatsoever.

25. On 23 August 2007, some six weeks later, the plaintiff was re-examined by Dr John Sage who had initially examined the plaintiff on 31 July 2003. The plaintiff presented to Dr Sage with continuous neck discomfort, persisting discomfort in the lumbosacral area of the low back, and Dr Sage thought there appeared to more restricted movement of the left shoulder and he thought the recurrent subluxations might have been more common since the plaintiff last saw him in 2003. As far as the right knee was concerned, the doctor thought that there was a more noticeable limp. As far as the plaintiff's headaches were concerned, Dr Sage thought he was suffering from migraines as well as occipital headaches, the former not being related to the neck problem but the latter might be related to the neck problem. On examination Dr Sage thought the plaintiff's neck movements were "more markedly restricted". As far as the back was concerned, the movements were the same as they had been previously. As far as the neck was concerned, Dr Sage thought that the more marked restriction of movement of the neck was real and supported by significant restriction of lateral flexion. As far as the left shoulder was concerned, the doctor also accepted that there was more marked restriction of movement which he thought could indicate degenerative changes of the glenohumeral joint being significant. From what I will subsequently say there is force to that observation. As far as the plaintiff's right knee was concerned, the doctor did not think that there was any significant difference from previously. It appears that Dr Sage was qualified merely to assess whole person impairment.

26. On 31 March 2008 the plaintiff came under care of Dr W D Wade, a psychiatrist. It appears that the plaintiff was sent to Dr Wade by Dr Williams of Nambucca Heads. Like Mr Peters, Dr Wade took a history of the death of a local police officer, Ian Muir, as being of significance to the plaintiff's psychiatric history. According to Dr Wade's report of 7 April 2008, Mr Muir had hanged himself. It is significant that he was a local member of the police force and not somebody with whom the plaintiff had worked in the Hunter Valley. Of interest in the doctor's report is this observation:

"He talked about how he is argumentative, gets threatened, goes quiet and has this pain in his lower back; how much the PTSD exacerbates physical problems."

I can accept the plaintiff had become argumentative. He was certainly extremely argumentative when giving evidence before me on this occasion, although that was certainly not the case in 2006. Indeed, not only was the plaintiff argumentative when giving evidence, but he could be described as being combative.

27. In two medicolegal reports, each dated 6 May 2008, Dr Wade describes at length the plaintiff's psychiatric condition. He accepts the diagnosis of PTSD and argued, like Mr Peters, that it was caused by the plaintiff's having been hurt on duty. On p 4 of the doctor's primary report of 6 May 2008, he said this:

"In himself he is very avoidant of situations and places and conversations about old police work because of the pain that it causes him. He has lost many interests and has very few interests outside a sense of duty - that is helping his wife. There is marked alienation and estrangement; he has to battle to be able to work in his wife's shop, particularly handling the general public. He feels very much on the outside and apart from others. His emotions are dominated by aggression and fear and he has great difficulty showing warm, tender emotions, soft loving emotions. His sense of the future is negative, with a sense of foreshortening.

He has many hyper arousal symptoms of PTSD, being jumpy, very aggressive and argumentative, being overly negative in his hyper-vigilance, always on the lookout for some terrible thing to happen, spending too much time watching and waiting rather than living.

He has chronic insomnia, perhaps contributed to by his obstructive sleep apnoea, which I believe is being treated, but mainly from nightmares.

He is very distractible and he often loses things and is forgetful and needs note; and there is this issue of his pain, as far as how anger exacerbates his pain."

Again an argumentative, aggressive man was the man who appeared in my witness box on 1 and 7 April 2016, as well as a man who was particularly negative about his future, who was negative about rejoining the workforce. In addition to PTSD, Dr Wade also diagnosed a major depressive disorder, in essence, resulting from the PTSD.

28. On the question of incapacity, Dr Wade expressed this view:

“The likelihood is if he did not have any physical injuries at all, that he would have been eventually and probably very much by now, discharged from the police on the basis of the psychological injury the psychiatric description of it of a Post-Traumatic Stress Disorder and the related Major Depressive Disorder, both chronic.”

Dr Wade recommended the plaintiff have active treatment for the diagnosed psychiatric conditions. In the second report of 6 May 2008 Dr Wade expressed this view:

“…it would appear that he had 100% incapacity for working on the open job market at the time of discharge and there has been no change up to the current time in that incapacity”

29. That is of no assistance whatever. The plaintiff was held on 2 February 2006 to be 80% incapacitated for work outside the police force. There was evidence before me at that time that the extent of his incapacity was 100% but I did not accept that. Dr Wade’s opinion is wide of the mark because 100% capacity was not the position between the plaintiff’s discharge on 5 September 2003 and my finding on 2 February 2006. Furthermore, the plaintiff was not discharged for any psychiatric problem.

30. Dr Wade’s second report of 6 May 2008 is not well-written, it appears to have been written in response to questions which the doctor does not quote. However, the final paragraph is this:

“In total related to symptoms of PTSD, predominantly distrust of the workplace, hypervigilance of others, not being able to function properly, taking the weight of the world on his own back, taking inappropriate and disproportionate amounts of responsibility, which is part of the survivor guilt of [PTSD].”

That matter follows upon the matter I have just previously quoted. It may be that what Dr Wade meant to say was that the incapacity was total and related to symptoms of PTSD. That appears to me to be highly likely although it is unfortunate that the doctor did not clarify the comment which I have just quoted. However, there is a third letter of 6 May 2008, in which the doctor does say this:

“In terms of Mr Peter Miles’ [PTSD] and its associated Major Depressive Disorder, looking in terms of the open job market, currently he is 100% incapacitated”.

It would appear, therefore, that the construction which I placed on Dr Wade’s second report of 6 May 2008 was accurate, that, as far as Dr Wade was concerned, the plaintiff was totally incapacitated by his psychiatric condition.

31. The problem for the plaintiff is this: he made an application to PSAC for his psychiatric condition to be included on his certificate of discharge. He was unsuccessful in that regard. To go further, the plaintiff had to make an application to a disputes committee but clearly he was unsuccessful there. He then appealed to the Industrial Relations Commission and was unsuccessful before Staff J. He then appealed from that decision of his Honour to the full bench of the IRC and that appeal was dismissed by majority. In other words, the plaintiff’s PTSD, if he has it, cannot be taken into account on the current application, subject to an argument raised by counsel for the plaintiff in submissions.

31. On 29 January 2014 the plaintiff was seen by Dr Barry Bracken, an orthopaedic surgeon, at the request of his solicitors. There is a long break in the medical evidence between 2008 and 2014. The plaintiff gave Dr Bracken a history that his back was now worse than it was previously. He told Dr Bracken that if he drove for 60 minutes he had to get out of the car and walk around to relieve pain. However, the plaintiff told me in cross-examination that he could drive for up to an hour and a half before he needed to stop to relieve any symptoms and that is consistent with another history. By the time Dr Bracken examined the plaintiff he was 60 years old. Dr Bracken thought he “moved freely” and that he was a “good, direct historian”, which sits very ill with the history given to Professor Kerridge and Professor Kerridge’s observations on it. On examination, Dr Bracken thought the plaintiff had a poke neck, that is, that he was forward flexed to about 10 degrees. He found general wasting of the deltoid muscle and the shoulder girdle muscle. There was marked tenderness over the anterior capsule of the shoulder and on manipulation there was antero-posterior instability and crepitus in the shoulder joint and also apprehension in external rotation and abduction. The plaintiff complained of pain at T12/L1 as well as at the lumbosacral junction. Straight leg raising was 80 degrees on both sides without any complaint of pain. Although the plaintiff gave Dr Bracken a history of having intermittent swelling of his right knee, there was none on physical examination. The plaintiff could demonstrate a full range of movement of the knee without complaint, although there was marked patello-femoral crepitus. Dr Bracken believed the plaintiff’s patellar compression test was positive and that seems highly likely considering that he has been accepted by PSAC as suffering from chondromalacia patellae.

32. Dr Bracken expressed the view that there had been a marked increase in the condition of the plaintiff’s neck and back since he had been assessed by Professor Ghabrial in 2007. However, the doctor appears to have made that observation because of his view as to the extent of the permanent impairment of the plaintiff’s neck and the permanent impairment of his back, issues related to the quantum of the plaintiff’s entitlements under 12D of the Act, or s 66 of the Workers’ Compensation Act 1987. How exactly the doctor could measure such an increase in the condition I do not know, but it is likely that as a degenerative condition was diagnosed that the degenerative condition increased with the effluxion of time.

33. The plaintiff was examined by Dr Chris Walls for the defendant at Coffs Harbour on 8 May 2008. It is to be recalled that Dr Walls had examined the plaintiff on 6 December 2005 for the defendant. He was examining the defendant some eight and a half years later. The plaintiff told Dr Walls that his left shoulder would dislocate once a week, but, as I said earlier, that is a history given to Dr Sage on 31 July 2003. Under the heading, “Psychosocial factors”, Dr Walls records this:

“Mr Miles is not at work, he has applied for a few jobs on leaving the NSW Police but was declined, so he is not doing so now. He has not undertaken any training.

He describes himself as mucking around on the computer during the day.

Mr Miles further describes himself as being unwell about two weeks every three months, but attributes this to the psychological disorders.

With respect to any deterioration since the last review, Mr Miles reports that his headaches are worse, the shoulder dislocates more easily, the knee is more painful but the back pain is intermittent.”

The plaintiff told me back in 2006 that he attempted to find work after leaving the Police Force but I accept that he has not really looked for any work since February 2006.

35. On examination Dr Walls found an inconsistency. He noted that straight leg raising was achieved 45 degrees bilaterally in the lying position, but 70 degrees bilaterally in the sitting position.

36. Dr Walls was asked a number of questions by the defendant. One of them was “What kind of work the applicant is capable of undertaking with their [sic] HOD medical condition and why?”. The response recorded by the doctor is this:

“With respect to all of the HOD conditions Mr Miles could undertake some light or clerical administrative work, initially in a part time capacity in such a role as Information Officer, light retail or even property management.”

The doctor was then asked whether the plaintiff was able to do that on a full-time basis or part-time basis. In answer to that question he said this:

“At this time I would suggest a return to work would be difficult but part time work from between 12 and 20 hours of work per week (in the right employment task) should be achievable.”

If those two sets of observations be accurate, then there has been clearly no material change of circumstance since February 2006. Dr Walls was then asked the extent to which the applicant’s capacity for work might be affected by their [sic] motivation to work. Dr Walls said this:

“Mr Miles has adopted a philosophical/fatalistic approach to his troubles and adapted to both the psychological and physical injuries. I would not be confident that he would warmly embrace a vigorous return to work programme.”

Again, fatalism about obtaining work looms as part of the plaintiff’s current presentation.

37. Dr Walls was then asked to provide his prognoses. As far as the plaintiff’s neck was concerned he did not expect any improvement. He went on to say this:

“There will be a slow deterioration as age adds its burden to the pathology. This will present with decreasing movement and increasing and more persistent discomfort.”

With regard to the plaintiff’s low back he expressed exactly the same opinion. As far as the plaintiff’s right knee was concerned Dr Walls said this:

“This condition will continue for the balance of Mr Miles’ life. It is however not the most serious of his complaints.

There will not be an improvement but the condition is likely to wax and wane and not cause problems for long periods of time. There will be slow deterioration as age adds its burden to this pathology. This will present with an increasing and more persistent discomfort.”

Of the condition of the plaintiff’s left shoulder the doctor said that the condition would continue until it had been stabilised by appropriate surgery. He continued thus:

“There will be no improvement until this occurs. The recurrent dislocations may be in conjunction with other shoulder pathologies, themselves most likely of consequence of these recurrent dislocations and may require extensive surgical intervention. They can only be determined by an orthopaedic surgeon after the appropriate imaging. There is no prospect of full recovery.”

In a supplementary opinion Dr Walls expressed the view that the plaintiff’s greatest problem was that in his left shoulder.

38. On 20 November 2014 the plaintiff was examined by Dr Tim Anderson, an occupational physician for the defendant. Under the heading, “Motivation and Attitude” Dr Anderson said this:

“Mr Miles was a friendly, cooperative and pleasant gentleman. He came across with a fairly sensitive nature. There are also psychological features which are out of my field of expertise. My general impression was that these are likely to be of greater significance than any physical condition.”

Under the heading, “Fitness”, Dr Anderson said this:

“Mr Miles is certainly not fit to get back to any form of confrontational work whether in the police or any security type of industry. The only occupation that I would see him effectively doing would be office based, provided he has the opportunity of regularly moving around. He has a lot of experience in administration. He should be able to manage satisfactorily for at least half normal hours in such an administrative occupation.”

If that be the correct assessment the plaintiff cannot show a material change in circumstance since he was last before me in February 2006.

39. In answer to certain questions the doctor referred to the plaintiff’s having applied for jobs such as with the Department of Community Services which demonstrated that he felt that he had the capacity to be involved in a realistic occupation. Dr Anderson thought that that spoke well for the plaintiff’s general level of motivation. Unfortunately, a history of applying to the Department of Community Services is not one given by the plaintiff to Dr Anderson that is set out elsewhere in the doctor’s report, nor was it the subject of any oral evidence before me. I do not know when the plaintiff applied for a job with the Department of Community Services. Dr Anderson may be referring back to a job the plaintiff applied for after his discharge in September 2003 prior to my giving judgment on 2 February 2006.

40. In answer to another question Dr Anderson said this:

“His capacity for work will slowly deteriorate for two major reasons. Firstly, he has now as good as he will ever be from a physical perspective and as time goes on there will be slow deterioration. The second is that he is now in his early 60s and his realistic chances of finding an appropriate job must be just about zero.”

The effluxion of time and age are not relevant considerations. Clearly, with the passage of time a plaintiff’s age will increase. Age was not something taken into account by Quirk DCJ in McDougall nor in my view is it appropriate to take into account here. One good reason for not doing that is that there are statutes applicable in this State that prohibit employers from discriminating against persons on account of, inter alia, their age. Further on the same topic, Dr Anderson expressed the view that there had been no dramatic change in the plaintiff’s condition since 2006 although he thought it fairly obvious that a gradual deterioration, particularly in the spinal column, was due to the degenerative changes that had been diagnosed. I shall return to that issue in due course.

41. On 19 August 2014 the plaintiff was assessed by Ms Monica Heafey. Ms Heafey has an Arts degree and a Graduate Diploma in Psychological Science and an Honours degree of Bachelor of Psychological Science. However, she describes herself in the report of 24 August 2014 as a “Provisional Psychologist” and as a “Rehabilitation Consultant”. Unfortunately, her curriculum vitae is not annexed to the report. It is difficult to know what her actual background and training are other than in psychology and it is difficult to know why she is only a Provisional Psychologist as distinct from a Psychologist. It may be that she has not yet received an appropriate membership of the Australian Society of Psychologists or the like. Ms Heafey was retained by the defendant to conduct a “vocational assessment”.

42. Ms Heafey provides at the commencement of her report an “Executive Summary”. Under that is a subheading of “Applicant’s Earning Capacity”. In that she says this:

“According to Dr Chris Walls’ Independent Medical Examination Report, dated 8th May, 2014, Mr Miles has capacity for part time work between 12 and 20 hours per week.

It must be noted that Dr Walls qualifies this recommendation by stating that a “return to work would be difficult”, and that “the right employment tasks” would need to be identified.

Based on the above medical information, coupled with Mr Miles’ place of residence and the limited labour market it was identified that Mr Miles has nil earning capacity currently. While Mr Miles may be capable of performing “employment tasks” of some vocational options, it is unlikely that he would be capable of actually completing the full role requirements of a job. Mr Miles’ current place of residence has a labour market whereby it is unlikely that they would consider hiring an individual unable to complete the inherent requirements of the whole job.”

This appears to suggest that the plaintiff has no earning capacity in the labour market outside the NSW Police Force. It is based not on the plaintiff’s ability to work but rather on the place where he is living and the requirements of the workforce in that locality. Which locality it is Ms Heafey does not identify. Is it Bowraville? Is it Bowraville and Macksville? Is it Bowraville, Macksville and Nambucca Heads? Is it the Nambucca Valley, or is it the Mid-North Coast? Furthermore, Ms Heafey’s ability to know the labour market in, for example, the Mid-North Coast is not stated.

43. Ms Heafey set out the plaintiff’s history, details of his employment history and what work he had done in the past, both inside and outside the Police Force. She then administered a DASS 42 test which measures depression, anxiety and stress. On the depression scale the score indicated severe depression. On the stress scale, again, a severe level of stress was ascertained and on the anxiety level the score indicated that the plaintiff’s anxiety was extremely severe. The plaintiff was not discharged from the NSW Police for either depression, anxiety or stress. Ms Heafey then provided this comment:

“The results of Mr Miles’ DASS suggest that there are significant psychological issues affecting his wellbeing at present. It is necessary to consider the effect of Mr Miles’ current psychological symptoms on his motivation, mood and presentation. Mr Miles appeared to be unsurprised by these results, and demonstrated good insight into his own mental health. It was recommended to Mr Miles that he explore options to improve his mental health for his general wellbeing and to facilitate a positive return to work outcome. It was suggested to Mr Miles that he engage in meaningful activities within his physical limitations to promote a sense of purpose. Mr Miles reported that he is not currently suffering suicidal ideation.”

Nowhere in her report does Ms Heafey appear to me to address the cause of the plaintiff’s depression, anxiety and stress or the cause of his psychological difficulties. She appears to me to be unaware of the diagnosis of PTSD and the posited link between the plaintiff’s work and his current psychological condition. Nor does Ms Heafey appear to be aware that the plaintiff’s psychological condition has not been accepted as having been caused by the plaintiff’s having been hurt on duty.

44. Ms Heafey then discusses the plaintiff’s job preferences. Under that heading she says this:

“Mr Miles stated that he has a strong preference for physical work, were he able to complete such work. Mr Miles reported that he does not have an interest in office based work. However, it is important to note that Mr Miles does not believe that he can complete any paid work in the open labour marked due to his injuries.”

In other words, Ms Heafey appears to accept the plaintiff’s say so that he does not have an ability to work in the open labour market. With the utmost respect, to her it appears to me that Ms Heafey’s views have been coloured by the plaintiff’s own self-assessment and also coloured by her reliance upon his psychological condition.

45. There are three further sets of medical reports before me. There are two reports from Professor Michael Ryan, a Clinical Associate Professor of Surgery. In essence, Professor Ryan is an orthopaedic surgeon. He examined the plaintiff on 6 August 2015. He provided a report of 6 August 2015 and a supplementary opinion of 8 October 2015. Professor Ryan had available to him an X-ray of the plaintiff’s whole spine and also of his pelvis and his left shoulder performed on 22 July 2015. These reports appear to have been made by Dr W Dassanayake, but at whose request I do not know. The comment on the X-ray of the plaintiff's neck is that there is mild cervical spondylosis. There is then a survey of the plaintiff's thoracic spine which led to a comment, I assume by Professor Ryan, that the plaintiff appears to have dorsal or thoracic osteoporosis. There was found to be a transitional vertebra at the lumbosacral junction, and that L5 had been partially sacralised on the left. I believe those two appearances represent the same phenomenon. That is, they are two descriptions of the same thing. As far as the left shoulder was concerned, there is said to be narrowing in the glenohumeral joint and subarticular sclerosis and osteophytosis. According to the report the appearance is due to severe osteoarthritis. In bold has been typed a comment, I assume, made by Professor Ryan. It is that the plaintiff has no shoulder joint space. Professor Ryan was aware that the plaintiff had been diagnosed as suffering from PTSD. He had also been told that the plaintiff had been suffering from sleep apnoea but the plaintiff was unable to tolerate the machine which is supposed to prevent that condition. He also noted the plaintiff suffered from prostatism with a consequence that I do not need to mention here but would not add to the plaintiff's sense of wellbeing.

46. He had a history which is correct of the plaintiff’s assisting his wife in her business and attempting to do some accounting and reconciliation work for that business. That is the "book keeping" business I described much earlier in these reasons. Professor Ryan expressed the view that the plaintiff's PTSD was the consequence of his traumatic experiences and also of his physical injuries. The latter, of course, has not been certified by PSAC. In any event it appears to me to be unorthodox in that for a trauma to be sufficient to induce PTSD it must be of its nature one which threatens the life of or serious injury to the patient. Professor Ryan then said the plaintiff appeared to be suffering from severe dorsal or thoracic osteoporosis and he might be at risk of spontaneous thoracic spinal fracture. He thought that that diagnosis might be secondary to the use of sodium valproate. That drug is an anti-epileptic drug. The plaintiff has suffered from epilepsy for many, many years. There is no suggestion that it is work related or that it results from the plaintiff's having been hurt on duty. The source for the observation that sodium valproate is an anti-epileptic medication is the report of Dr Lowy of 6 August 2015 upon which I shall comment shortly. In any event, one can have regard to Dr Wade's primary report of 6 May 2008 which on p 1 refers to the prescription of that drug by the plaintiff's general practitioner, Dr Williams, and on p 5 of that report is a recommendation that although it was prescribed for epilepsy, it could also be of assistance in treating a patient suffering from PTSD. In other words, if the plaintiff has a problem in his thoracic spine due to the ingestion over many years of sodium valproate, it has nothing to do with the plaintiff's having been hurt on duty.

47. Professor Ryan then comments that the plaintiff is unable to do any heavy physical work now because of the risk of spinal fracture. I held, back in 2006, that he was unable to do heavy work in any event because of the orthopaedic problems for which he was medically discharged from the police force. Professor Ryan was then asked whether the plaintiff's condition had deteriorated since 2006. Professor Ryan wrote this:

"Mr Miles' chief areas of deterioration are his left shoulder and the appearances of his dorsal spine. His left shoulder joint (glenohumeral articulation) is destroyed. The presence of osteoporosis is a field change (it affects the whole of his body and is a likely consequence of his very limited physical activities which arise from symptoms and his lack of exercise and spinal loading secondary to those symptoms)."

With the utmost respect, Professor Ryan cannot have it both ways. Either the osteoporosis is secondary to the sodium valproate or it is secondary to inactivity but the doctor says in one place that it is a result of the former and in another place says it is a result of the latter. That makes it very difficult to judge. However, from my experience and bearing in mind the whole of the medical evidence before me on this application, it appears to be more likely that if the plaintiff has osteoporosis, it is due to his ingestion of the anti-epileptic medication rather than his merely doing little. Merely doing little does not usually end up with a patient’s developing osteoporosis.

48. In any event it is clear that Professor Ryan was only offering a differential diagnosis because in the final sentence of his report he points out that the plaintiff needed to undergo spinal bone densitometry, that is, his bones needed to be assessed to see whether they were in fact osteoporotic. Professor Ryan's supplementary opinion merely comments on what became exhibit 3, the plaintiff's statement seeking to limit what work he does in his wife's business.

49. Dr Anthony Lowy, an occupational physician, also examined the plaintiff on 6 August 2015, clearly at the same surgery as used by Professor Ryan. Dr Lowy's interview and physical examination lasted 50 minutes. Dr Lowy was asked whether the plaintiff suffered from any secondary or consequential conditions. In response to that question he said this:

"As a result of his certified infirmities, Mr Miles does not suffer from any secondary or consequential conditions other than drinking too much alcohol which he attributes (in part) to his longstanding nervous condition which is clearly anxiety, although PTSD was diagnosed."

This is the first occasion on which there is any history given of the plaintiff's ingesting "too much alcohol." In fact, those doctors who mentioned the question of alcohol consumption earlier said that the plaintiff's consumption of alcohol was within normal limits. There is nothing from the plaintiff himself about drinking too much alcohol. It appears to be a complete red herring, in my view, looking at the evidence as a whole, and I am not persuaded the plaintiff does ingest too much alcohol. If he did, it would be more likely in my view to result from PTSD rather than from some anxiety referable to the plaintiff's orthopaedic injuries.

50. One aspect of the plaintiff's wife's business is home brewing. Not only does she supply materials for customers to brew their own beer at home, but also to distil their own spirits or make other alcoholic beverages. The plaintiff enjoys talking to his wife's home brewing customers and enjoys tasting their product and offering his opinion as to the adequacy of their product. Indeed he pointed out that sometimes a customer might leave a bottle of home distilled whiskey for his opinion as to its taste and perhaps its effect on him. The plaintiff enjoyed that type of activity, but there is no suggestion on the evidence before me that the plaintiff over indulges in alcohol.

51. Dr Lowy was also asked whether the plaintiff suffered from any “secondary pain symptomatology”. According to Dr Lowy, the secondary symptomatology is not pain but a sleep disorder. With the utmost respect, the plaintiff suffers from sleep apnoea and that would explain any sleep disorder in itself. Dr Lowy expressed the view that the plaintiff was totally and permanently incapacitated from undertaking any employment in the open labour market and that included “administrative employment role”. With the utmost respect to Dr Lowy, that neglects to mention the two or three hours per week which the plaintiff spends working for his wife providing some book keeping assistance. After making the comments which I have just quoted, Dr Lowy said this:

“He is in survival mode; ie, flat out looking after himself, getting through each and every day, let alone trying to get to and from any workplace.”

With the utmost respect to Dr Lowy, that appears to me to be hyperbole, bearing in mind what I have heard from the plaintiff himself. Furthermore, Dr Lowy went on to describe the plaintiff as a “human wreck”. I did not assess him to be such a person in the witness box here on 1 and 7 April 2016, and the man who appeared before me in February 2006 could hardly be described as a “human wreck” by any stretch of the imagination.

52. The final assessment of the plaintiff is from Dr James Bodel, an orthopaedic surgeon. Dr Bodel assessed the plaintiff on 26 February 2016 and prepared a report dated 2 March 2016. Dr Bodel makes the point that the plaintiff suffers from hypertension, and raised cholesterol, but did not take any medication for that condition. As far as hypertension was concerned, the plaintiff only took a low dose aspirin. Under the heading “activities of daily living”, Dr Bodel said this:

“He can drive a car for between one to one and a half hours. He can drive an automatic car but could also manage a manual vehicle.

He struggles to do anything around the house. He occasionally does the lawn, but really very rarely. His wife does this mostly.

He states that he puts in his time either on a computer or watching Netflix.

He cannot sit for too long but he does not have any outside hobbies or interests.

He states that he is not involved in his wife’s health food business.”

That last statement is clearly incorrect. Here, again, is a statement of the plaintiff’s ability to drive for up to one and a half hours which is consistent with the plaintiff’s sworn evidence about how he managed to comefrom Bowraville to Sydney, which can be found on pp 11.35 to 14.30 of the transcript of evidence given on 1 April 2016. This indication of the plaintiff’s activities of daily living is far from the assessment made by Dr Lowy.

53. Dr Bodel provided this diagnosis:

“From a musculoskeletal point of view, this gentleman has mechanical symptoms in the neck and the back, arthritic change in the medial compartment of the right knee, and moderate to severe arthritic change in the region of the left shoulder which is largely due to a non-work related injury that led to the putti-platt some years prior to joining the Police Force. The injuries at work have caused an aggravation, acceleration, exacerbation and deterioration of that disease process and have probably brought forward the timing of any further surgery that may be required in the shoulder but they are not the prime underlying pathology”.

In his opinion, Dr Bodel said this:

“He would not be able to engage in work that requires strenuous or repetitive tasks with the left arm or prolonged sitting, bending, twisting or lifting or kneeling and squatting.

It is difficult to contemplate what work he could do, but theoretically from the physical point of view, he would have a capacity for some very restricted light duty work. As I have indicated above, overall his clinical presentation suggests that there are other health issues, particularly psychological issues which may also complicate his ability to return to the workforce.

This gentleman is now 62 years of age.

He has not worked since medical discharge.

His prospects of returning to work are very poor.

I cannot contemplate a type of work that he would be able to do because of the totality of his clinical presentation, although I could accept that he may be able to tolerate part time light duty work to about 10 to 15 hours a week, which were very modified light sedentary work activities, purely from the orthopaedic point of view.

In general terms, this gentleman’s overall level of clinical capacity has deteriorated over time, which is inevitable with the type of underlying musculoskeletal pathology.”

Consideration of the medical evidence

54. It is necessary at this point to return to the specified infirmities which led to the plaintiff’s discharge from the Police Force. They are these:

- Cervical spine - symptomatic degenerative changes

- Lumbar spine - symptomatic degenerative changes

- Left shoulder - recurrent dislocation

- Right knee - symptomatic chondromalacia

The plaintiff was not medically discharged because he was suffering from degenerative changes but because he was suffering from symptomatic degenerative changes. It appears that it was accepted that the plaintiff had degenerative changes in his neck and low back which had been rendered symptomatic by injuries which were caused by the plaintiff’s having been hurt on duty, that is the rendering of the degenerative changes symptomatic was the relevant hurt on duty event. Degenerative changes are, by their nature, underlying and due to the inevitable progression of degenerative disease which can affect the whole of the spine. An event which renders a degenerative condition symptomatic is generally described as an exacerbation. The plaintiff’s right knee condition was again the subject of chondromalacia patellae but it appears that it was accepted that the making of that condition symptomatic was caused by the plaintiff’s having been hurt on duty. In other words, there was accepted to be an exacerbation of that condition by an event which occurred to the plaintiff in the course of his service on 21 April 2002. That date is taken from exhibit W, the certificate of the Commissioner of Police.

55. The condition of the plaintiff’s left shoulder was not caused by his having been hurt on duty, meaning the actual causation of the pathology did not result from any injury arising out of, or in the course of, the plaintiff’s service as a constable of police. Common to all the early histories is a history that the plaintiff originally injured his left shoulder prior to joining the New South Wales Police Force. For example, the plaintiff was seen by Dr T J Woolard, a rehabilitation physician, at the request of his own solicitors on 8 June 2004. In a report of 9 June 2004 Dr Woolard said this:

"He initially suffered a dislocated left shoulder initially aged 19 years and he was treated with surgery at that stage to stabilise the shoulder."

The plaintiff was seen by Dr Claire Hollo on 3 August 2004 at the request of the defendant. In her report of 3 August 2004 Dr Hollo sets out this history:

"Mr Miles reported that he injured his left shoulder ten years ago. However, on further questioning he first experienced a dislocated left shoulder in approximately 1978. He stated that he could have [been] due to anything such as playing sport, work and then he indicated that it was initially at a drunken party. A subsequent dislocation occurred when he had been surfing. He continued to experience frequent dislocations until he had open surgery (Putti Platt) operation in 1978. He reported the operation was successful and he had no further dislocations until 2002…"

I know from exhibit W that it was accepted by the Commissioner of Police that the plaintiff suffered an injury on 21 April 2002 to his left shoulder which led to the recurrent dislocation.

56. It is clear that the plaintiff now has in his left shoulder severe arthritic change which in the opinion of Dr Bodel, which I accept, results from the initial injury leading to the need for the Putti-Platt operation in 1978. Insofar as the plaintiff's shoulder condition might have deteriorated since 2006, it is because of the underlying condition in the left shoulder, the severe arthritic change secondary to the initial injury and has nothing to do with the injury of 21 April 2002.

57. It is clear to me that the finding of PSAC was based on the report of Dr John Sage of 1 August 2003. He diagnoses the four conditions accepted by PSAC. Of the condition of the plaintiff's right knee, Dr Sage said this in his report of 1 August 2003:

"This was affected with the injury of 21 April 2002. His range of movement is full and there was no significant muscle wasting. I feel that he had some pre existing chondromalacia which has been made symptomatic by the episode of 21 April 2002."

The only injury accepted by the Commissioner of Police as being hurt on duty for the plaintiff's right knee was the event of 21 April 2002.

58. In summary, all the plaintiff's conditions are pre-existing degenerative conditions. If they became worse since 2 February 2006 it is because of the inevitable progression of the underlying condition, not because of the injuries that the plaintiff suffered when he was a member of the Police Force. I am not persuaded on the balance of probabilities the plaintiff has proved any material change of circumstance in the four orthopaedic problems certified by PSAC and accepted by the Commissioner as having been caused by the plaintiff's having been hurt on duty. If there has been a physical deterioration in those conditions, it is because of an underlying condition which pre-existed any compensable event. Such is to be gleaned from the certificate of PSAC itself as set out in the certificate of the Commissioner of Police which is exhibit W, and also from the contemporaneous reports, those made about the time of the plaintiff's discharge from the New South Wales Police Force on 3 September 2003.

Consideration of earning capacity

59. Furthermore, I am not persuaded that the plaintiff's earning capacity has in any way changed. I still remain of the view that the plaintiff has the ability to do some work on a part-time or casual basis of a sedentary or administrative nature, in particular work where he could sit or stand or move about. I accept that if he could obtain some casual administrative work doing the books of a small business where he could use such computer skills as he had acquired from his Police Force service and perhaps calling upon his old background as a trainee accountant and bank teller, such that he might be able to obtain some bookkeeping work a few mornings a week. In essence, I am repeating the finding stated at [48] of my reasons of 2 February 2006.

60. If the plaintiff can spend two or three hours per week working for his wife's business, he might be able to do so for another business in Bowraville or another business in Macksville or another business in Nambucca Heads. Equally, the local "metropolis", Coffs Harbour, is but 62 kilometres distant from Bowraville and can be reached in under one hour by motor car. Coffs Harbour is a thriving community with much work available in it and I am confident that the plaintiff could, if he wanted to, obtain some bookkeeping type business on a part -time or casual basis in that city. I do not share the pessimism of Ms Heafey as to the labour market on the Mid-North Coast of New South Wales.

61. The current practice, Mills, Workers Compensation, New South Wales refers to the decision of O'Meally CCJ in Collins v Days Transport Service Pty Ltd (1999) 18 NSWCCR 116, for the proposition that the general labour market reasonably accessible to a worker means the labour market reasonably accessible to a worker in the geographical area in which the worker lives, unless a worker moved to that geographical place in order to bolster his entitlement to compensation. His Honour's dictum is, however, obiter. Mr Collins had worked for his employer at Wagga Wagga. At the time that his case was heard and determined, he was living at Ballina. His Honour said this:

“19 I am required to assess the applicant's capacity to earn in the labour market reasonably accessible to him. In my view, contrary to the submissions made on behalf of the respondent, that labour market is that existing in the North Coast of New South Wales. It was put to me by the respondent that I should exercise my discretion because the applicant moved from Wagga Wagga to Ballina, where, it is said, less employment is available than in Wagga Wagga. That is not my observation of the labour market in New South Wales. It is the boast of the area in which I am sitting that it is one of the fastest growing areas of the State. I sit in Wagga Wagga from time to time, and my assessment of the respective labour markets is that there is no significant difference between Wagga Wagga and Ballina. In any event, the applicant's ability to earn should be assessed by reference to the labour market on the North Coast of New South Wales, because this is where he lives. He did not come here to bolster his entitlement to compensation.”

I shall return to this issue again when I come to discuss s 10 of the Act as it arises in this case.

Addresses

62. Issues raised in addresses were firstly, whether the plaintiff’s incapacity for work outside the Police Force should be addressed merely by looking at the place where he was living at the time that the Court was called upon to make the assessment of the incapacity, and secondly, whether that incapacity for work outside the Police Force is limited to the incapacity resulting from the injuries accepted as having been hurt on duty or whether that incapacity is the incapacity resulting not only from hurt on duty injuries but also from any other condition affecting the worker at the time in question.

63. The latter submission by Mr Weightman on behalf of the plaintiff I found to be extremely novel. I have been dealing with matters arising under this Act for 30 years. I am one who believes in the ancient dictum that consuetudo est optimus interpres legum: custom (or practice) is the best interpreter of the law. The submission put to me by Mr Weightman was, in my view, a novelty. He could provide me with no authority other than the words of the Act itself. I suggested that he research overnight the second reading speeches and other secondary material to ascertain whether his argument was supportable. I was then referred to a large number of cases concerning the use of secondary materials.

Use of extrinsic material in statutory construction

64. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA41; (2009) 239 CLR 27; 260 ALR1 Hayne, Heydon, Crennan and Kiefel JJ observed at [47]:

“Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text”

I do not need to add at this stage the authorities which their Honours collected to support that proposition.

65. In Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380, Spigelman CJ said this:

“12 I wish to express my agreement with the analysis by Mason P of the House of Lords judgment in Pepper v Hart [1992] UKHL 3; [1993] AC 593. Statements of intention as to the meaning of words by ministers in a Second Reading Speech, let alone other statements in parliamentary speeches are virtually never useful. Relevantly, in my opinion, they are rarely, if ever, ‘capable of assisting in the ascertainment of the meaning of the provisions’ within s 34(1) of the Interpretation Act 1987. I only refrain from using the word ‘never’ to allow for a truly exceptional case, which I am not at present able to envisage.

13 Of course, other statements in the course of a Second Reading Speech by a minister, bearing in mind the fact that s/he will almost always be speaking on behalf of, at least, the Lower House of Parliament by reason of the operation of our party system, will be of use on matters such as the purpose, which used to be referred to as mischief.

14 However, the subjective intention of the Parliament, let alone of Ministers or Parliamentarians, is not relevant. What is involved is the search for an objective intention of Parliament, not the subjective intention of Ministers or Parliamentarians. (See eg Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at 146-147 per McHugh J.) Indeed, often there is no relevant subjective intention at all. The words used may represent a compromise, without consensus, so that, in substance, the decision has been left to the courts. (See Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555 at 572–575; Wik Peoples v Queensland (1996) 187 CLR 1 at 168–169.) Even more frequently, indeed almost always in cases of difficulty, the circumstances in which the statute falls to be applied were not actually contemplated by anybody. Even if they were contemplated, a statement of intention in a Ministerial Second Reading speech will not prevail over the words of the statute. (Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 esp at [33]-[37].)

15 The authoritative determination of the meaning of a statutory provision is an exercise of the judicial power, not of the legislative power, let alone of the executive power. In the Australian system of the separation of powers, it is the courts which determine what the legislative intention when enacting a particular provision was.

16 The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament. (See State v Zuma (1995) (4) BCLR 401 at 402; [1995] ZACC 1; [1995] (2) SA 642; Matadeen v Pointu [1998] UKPC 9; [1999] 1 AC 98 at 108; R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736 at [82]; La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius Privy Council, 13 December 1995, unreported; Pinder v The Queen [2002] UKPC 46; [2003] 1 AC 620.) The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say. (See Nolan v Clifford [1904] HCA 15; (1904) 1 CLR 429 at 449; R v Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-168; Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 218 CLR 1 at [10] and see the authorities discussed in R v Young supra at [5].)”

69. The adjective “incapable” and the noun “incapacity” are cognate. The two words are merely the negative of the adjective “capable” and the noun “capacity”. The prefix “in” is from Latin and indicates the negation of the succeeding word. The ultimate root of each of the adjective and the noun in their positive form is the Latin verb capio, capere, cepi, captum, which means to take into the hand or to take hold of, to take or pick up, to consume as food or drink, to seize hold of or to arrest (hence the ancient writs of capias), to catch by hunting or fishing and to capture or seize, for example, a city or town or tower. From that verb was formed the adjective capax, capacis which referred to the ability to hold something and by analogy meaning capaciousness or roominess. It had an extended meaning of having a good ability to hold something that is a good capacity for food or the like, and an ability to contain both immaterial and abstract things as well as the ability to hold, for example, office. “Incapable” might be described as being “unable” and “incapacity” may equally be described as an “inability”.

70. Subsection (1A)(a) then provides a base pension for a disabled member of 72.75% of the member's attributed salary of office. Paragraph (b) then provides for an additional amount of no more than 12.25% “commensurate […] with the member’s incapacity for work outside the police force.” Paragraph (c) deals with a former member who is in fact totally incapacitated for work. Although par (c) opens with the words “If the disabled member is totally incapacitated for work outside the police force”, to be a disabled member, one must be incapable of being a sworn member of the police force, so, to be within par (c) one must be incapable of working both within and without the police force.

71. Paragraph (c) provides that if that incapacity was caused by the disabled member’s having been hurt on duty because he was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment, the disabled member is entitled to not only the base pension of 72.75% and the further 12.25% provided under par (b) but also to an amount not greater than 15% (i.e. 27.25% less 12.25%) commensurate with the risks to which the member was required to be exposed in the course of his or her service. I appreciate that I have not quoted precisely the provisions of pars (c) but interpolated into it the provisions of par (b). However, when one adds 12.25% to 72.75% one comes to 85% and the further 15% represents the ultimate 100%. It is clear that under par (b) a totally disabled member of the Police Force can obtain a pension of 85%, that is, 72.75% plus 12.25%, but if the total incapacity was not caused by an exposure to any abnormal risk, nothing is payable to him or her under par (c).

72. To be entitled to recover the pension under par (a), the disabled member of the Police Force must have been certified to be incapable by a specified infirmity of body or mind, of exercising the functions of a police officer. To obtain a benefit under par (c) the disabled member must be totally incapacitated by that same certified infirmity of body or mind for doing any work either within or without the Police Force. The argument raised by Mr Weightman is that a former member of the Police Force who has an incapacity for work outside the Police Force can recover a further 12.25% even if that incapacity was not caused by his having been hurt on duty. Mr Weightman made the point that par (b)(ii) is not qualified by words such as "resulting from the certified infirmity" or the like.

73. In the course of argument, I asked learned counsel to postulate a member of the Police Force who was working undercover, to try to expose a criminal subculture, and, once identified as a police officer by members of the criminal subculture, was shot in each knee thus destroying the policeman’s knee joint on each side, a procedure known to be applied by the IRA and known as knee capping. Such a disabled member of the Police Force may have an ability to do sedentary administrative work and thus would have an incapacity for work outside the Police Force but no total incapacity. The argument then proceeded if that member of the Police Force subsequently became totally incapacitated by a completely unrelated condition such as a “stroke”, whether he could recover the total 12.25% provided for in par (b)(i). Mr Weightman submitted that he could.

74. However, in my view, that would be inconsistent with the scheme of the Act which I read in s 10. The word “incapacity” in s 10(1A)(b)(ii) takes up the adjective “incapable” referred to in the definition in par (a) of the definition of “disabled member of the police force.” That requires that the former member be incapable from a specified infirmity of body or mind of discharging the duties of his office. In my view, one must infer that the incapacity referred to in par (b)(ii) is the incapacity from a specified infirmity of body or mind. This is not only my understanding of the statute but the way it has thus far always been interpreted.

75. My interpretation of the bare words of the statute is mirrored when I go to the secondary material. Interpretation Act 1987 s 33 provides this:

“In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”

Section 34 provides for the use of extrinsic material in the interpretation of, inter alia, an Act of Parliament. Section 34 is in the following terms:

“34 Use of extrinsic material in the interpretation of Acts and statutory rules

(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b) to determine the meaning of the provision:

(i) if the provision is ambiguous or obscure, or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes:

(a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer,

(b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the provision was enacted or made,

(c) any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made,

(d) any treaty or other international agreement that is referred to in the Act,

(e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made,

(f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House,

(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section, and

(h) any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament.

(3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to:

(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and

(b) the need to avoid prolonging legal or other proceedings without compensating advantage.”

78. In the current matter I have before me the Explanatory Note to the Police Regulation (Superannuation Appeals) Amendment Bill 1979 and the second reading speeches for that Bill in each of the Legislative Assembly and Legislative Council. According to the Explanatory Note one of the objects of the amendments, that identified as (c) for Schedule 1 to the Act which contained amendments to the principal Act relating to hurt on duty benefits, is this:

“to increase the annual superannuation allowance payable to a disabled member of the Police Force who was discharged as a result of being hurt on duty to a minimum of 72.75% of his salary of office and a maximum of -

(i) 85% of his salary of office where the disabled member is incapacitated for work outside the Police Force; or

(ii) 100% of his salary of office where the disabled member was exposed to certain exceptional risks;”

Of course this does not directly answer the current question of interpretation but it does suggest that what was in the mind of the legislature was a maximum superannuation allowance of 85% in the case of those who were disabled for work both within and without the Police Force, presumably by the same incapacity.

79. The second reading of the Bill which became Act number 133 of 1979 was moved in the legislative assembly on 16 October 1979 by Mr Hills MLA, the Minister for Industrial Relations, Technology and Energy. His speech commences on p 1843 of Hansard. On p 1844 the Minister quoted an earlier statement of another Minister representing the Premier:

“The main changes will be to be bring benefits to Police in line with those under the Workers Compensation Act which has been used to determine the level of lump sum benefits for the loss of a limb, the loss of an eye, etc, and also in the event of death.

Pensions on discharge due to injury may be increased from 72.75% of salary to 85% provided such increase does not exceed the amount that would have been paid as a weekly allowance had the Workers Compensation Act applied.

The Police Superannuation Board is to be increased to include the Registrar of the Workers Compensation Commission and this will be the body to determine the amount of pension to be paid and will take into consideration the nature of the wound or injury and the ability of the officer to earn on the open labour market, and any other relevant factors. The 85% of salary will be paid where the injured officer is totally incapacitated for all work as distinct from Police duties. Cabinet also decided that in special circumstances more than 85% but never exceeding 100%, of salary could be paid if in the opinion of the Commissioner the injury which resulted in total incapacity was received in circumstances which exposed the officer to exceptional risks.

With long term injuries, pensions may be converted to lump sums, as with the Workers Compensation Act.

In addition the legislation will be amended to provide for the payment of benefits to former Police officers who, following resignation, suffer a recurrence of an injury received whilst on duty.

De facto spouses would also receive benefits similar to those payable under the Workers Compensation Act.

In view of the vital role played by Police in modern society, sometimes under difficult and dangerous circumstances, they were entitled to receive these improved benefits which are currently available to the rest of the community generally under the Workers Compensation Act.”

After quoting that, Mr Hills pointed out that it had been decided that members of the Police Force would not receive the cover provided by the Workers’ Compensation Act 1926, but, to compensate them for the lack of those benefits, the benefits under the Act now in question were being improved. He then went on to say this:

“It has been decided that police should continue to be excluded from workers’ compensation. However, it is recognised that he compensation elements in the police superannuation Scheme need to be improved and, in certain respects, brought into line with the compensation provided for the general work force. As things stand under the Police Regulation (Superannuation) Act, a member of the police force who is incapable of discharging the duties of his office due to an infirmity occasioned by a wound or injury received in the actual execution of his police duty, may be granted an annual superannuation allowance. Similar provision is made for widows of police killed on duty. The parallel provisions of the Workers’ Compensation Act which confer entitlements on workers, operate in respect of a personal injury arising out of or in the course of employment, whether received at or away from the place of employment. The workers’ compensation provisions were given an extended operation by legislative addition to cover daily and other periodic journeys, and the provisions in the police scheme were similarly extended. Notwithstanding the similar treatment in this aspect, the fundamental differences between the operation of the police and the workers’ compensation schemes have remained.

It has been decided that provision be made to ensure that police may be compensated whenever they are injured in circumstances to which a worker would be covered by workers’ compensation.”

Later, the Minister said this:

“A variety of measures have been included to bring by legislation police hurt-on-duty benefits and entitlements more in line with workers’ compensation provisions.”

On page 1846, the Minister is recorded as saying this:

“Careful consideration has been given to the time from which the new hurt-on-duty benefits should operate. The conclusion reached is that the only way of ensuring equity in this matter is to provide that the new benefits apply only in respect of injuries received after the commencement of the hurt-on-duty provisions of the Bill. However, the benefits would apply to a member of the Police Force who is hurt on duty after the commencement of these provisions but who does not suffer infirmity until he has left the police force.”

Of course that suggests that these new provisions are not retrospective. If a policeman was medically discharged for an event prior to 21 November 1979, he could not bring an application to this Court. Later on the same page the Minister discussed amendments proposed to s 10. He said this:

“Item (8) would amend section 10 of the principal Act by omitting provisions relating to the existing entitlement of a member of the police force discharged as incapable of exercising the duties of office on account of infirmity occasioned by a wound or injury received in the execution of police duties. The item would, instead, insert provisions for the payment of an annual superannuation allowance to a member or former member of the Police Force who is disabled by an infirmity caused by his being hurt on duty. The amendments provide for the determination of the amount of the allowance at the levels indicated earlier.”

That statement is clearly consistent with the interpretation of the provision which I have earlier made, that is, to obtain a benefit under either pars (a), (b) or (c) of subs(1A) one must prove that the relevant incapacity was caused by the member’s having been hurt on duty.

80. The Bill was read a second time in the upper House on 30 October 1979. The relevant Minister was the Honourable D P Landa MLC. At p 2346 of Hansard, the Minister is reported to have said this:

“In cases where the disability also causes incapacity for work outside the police force, there will be paid an amount in addition to the disablement allowance. The additional amount will not exceed 12.25% of the salary of office and will be commensurate with the extent of the incapacity. The maximum annual allowance will be, therefore, 85% of salary. However, where there is total incapacity associated with exposure to exceptional risk the additional amount will be no less than 12.25% and no more than 27.25%. The maximum allowance is, therefore, 100% of salary. By these means, hurt-on-duty pensions could reflect the degree of incapacity suffered and also any exceptional risk to which a totally incapacitated member of the police force was exposed.”

81. Again, that view of the Minister is consistent with the interpretation that I attribute to s 10(1A), which is also the one that has been applied uniformly for at least the last 30 years, if not all the way back to 1979. I do not accept that I can take into account, in determining the plaintiff’s entitlement to the benefit that he seeks, any supervening, non-pensionable incapacity. In the present case, the relevant supervening non-pensionable incapacity is that caused by the plaintiff’s psychiatric condition and, although I am not persuaded that any deterioration of the plaintiff’s physical condition since 2 February 2006 results in any change of economic circumstance, if there had been deterioration in the physical condition, that is because of the inevitable progression of the underlying, non-pensionable condition.

82. I therefore cannot accede to the submission put to me by Mr Weightman that I can take into account a supervening non-pensionable incapacity. Were I able to do so, I would not accede to Mr Weightman’s submission that the extent of the incapacity was now 100%, but I would be more inclined to the submission that the extent of the incapacity is now in the order of 90%, rather than the 80% which I found on 2 February 2006. In my view, the plaintiff’s psychiatric condition has added to the extent of the plaintiff’s incapacity. The negativity that he now has results from the plaintiff’s psychiatric condition which also, somehow, highlights or elevates the extent of the plaintiff’s physical symptoms from time to time. However the fact remains the plaintiff does do some work for his wife's business, some two or three hours per week and if he did that for another business or two each week he would attain near the extent of the assessment that I made back on 2 February 2006.

83. I should add that in Collins v SASTC, [2012] NSWDC 225; (2012) 11 DDCR 198 at [42] I pointed out that the terminology of s 10(1A)(b)(ii) is "incapacity for work outside the Police Force" and that a capacity for work outside the Police Force might include self-employment. I went on to say this:

"The self-employment that the plaintiff has engaged in in the past was, with the benefit of hindsight, completely inappropriate. However, he does have the ability to work in self-employment, for example, as a contract lawn mower, or contract gardener, or doing some clerical or administrative work, such as writing précis of reports, or the like, doing the clerical aspect of the job he did as a private investigator."

In the current case, the work which the plaintiff has been doing for his wife's business is apt for somebody in self-employment and is work that is apt for the plaintiff to do for other businesses in the Mid North Coast of New South Wales.

Local labour market submission

84. The other argument resulting from submissions is the argument about whether one can take into account the local labour market. Perhaps it is appropriate at this stage to refer to the decision of the Full Court of the Supreme Court in Aitkin v Goodyear Tyre and Rubber Co (Australia) Ltd (1945) 46 SR(NSW) 20 which concerns the interpretation of s 11(1) of the Workers Compensation Act 1926. That was the Workers Compensation Act in force at the time of the passage of Act number 133 of 1979. The dictum of Sir Frederick Jordan CJ is well known:

“Section 11 provides that, in case of partial incapacity, the weekly payment shall in no case exceed the difference between the amount of the average weekly earnings of the worker before the injury, and the average weekly amount he is earning, or is able to earn, in some suitable employment or business, after the injury, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper.The burden of proving that the incapacity established by the worker is partial only, and, if so, of proving the other facts necessary to limit the weekly payments under s 11, is upon the employer: Bryer v Metropolitan Water, Sewerage and Drainage Board (1939) 39 S.R. 321 at 331-3; Salisbury v Australian Iron and Steel Ltd (1943) 44 S.R. 157 at 160. The English section corresponding with s 11 has been considered in several decided cases. It was held by the House of Lords in Blackmore v Delta Mill (1919) Ltd (1935) 28 B.W.C.C 193 at 199, that the phrase “is earning, or is able to earn” etc., means “is earning, or, in some suitable employment or business, is able to earn.” Each of these alternatives has been elaborately considered in a number of decided cases. As to the phrase “is earning,” it has been held that if the partially incapacitated worker is earning something his actual earnings must prima facie be taken as the basis, and the rate of compensation provided for by s 9 reduced by a calculation based on the excess of his pre-injury average weekly earnings above what he is actually earning: Blackmore v Delta Mill (1919) Ltd (1935) 28 B.W.C.C 193 at 193. If, however, it is proved that his actual earnings are not a proper test, because there is some reason unconnected with his earning power which makes them lower than they should be, the other alternative, what he is “able to earn,” must be adopted. This is so where it is shown that he is deliberately taking lower-paid work than he could get, or is idling and on this account receiving less than he could be reasonably expected to obtain, or where his actual earnings have been compulsorily reduced by something unconnected with his injury or general earning power: Jones v Amalgamated Anthracite Collieries Ltd [1944] A.C. 14 at 25; but, if the compulsory outside influence, instead of reducing, increases his actual earnings, his actual earnings must be taken as the basis: Heaney v B.A. Collieries Ltd (1944) 171 L.T. 163. If, however, he is not earning anything, or, for some good reason, what he is earning cannot be treated as a proper basis, regard must be had to the alternative basis provided by the section – what he is “able to earn.” It has been held that this means physically capable of earning remuneration of a particular amount in some suitable employment or business, irrespectively of whether the demand for workers in the suitable employment is such as to admit of his getting a job. Hence, if he is not earning anything, he is entitled to compensation calculated only on the basis of the excess of his pre-injury average weekly earnings over what he could earn in some suitable employment if he could get a job: Cardiff Corporation v Hall [1911] 1 K.B., 1009; McNally v Furness Withy & Co [1913] 3 K.B. 605 at 606; Bevan v Nixon’s Navigation Co [1929] A.C. 44.”

85. There was much debate as to whether in moving to the Nambucca Valley and deciding to live in Bowraville the plaintiff had taken himself away from a relevant place of employment and the workers compensation authorities generally require one to consider a worker to be living at the place where he is living at the time that the assessment of partial incapacity is made. However, it is clear from the dictum that I have just quoted that the earnings to be taken into account must be a proper test of the extent of the partial incapacity. If the plaintiff has limited the labour market available to him by moving to Bowraville, that is the plaintiff's own problem. He did not move there, on the evidence before me, for economic reasons resulting from the injuries which led to his discharge from the New South Wales Police. Rather, he left there to return to his native area, where his wife could assist their daughter in the health food shop which ultimately became his wife's business. No economic hardship was proved that required the plaintiff to move from Duns Creek to Bowraville. In any event, as I earlier indicated, I am not persuaded that the labour market in the Mid North Coast of New South Wales is of the nature that Ms Heafey would have me believe.

De minimis argument

86. Finally, I should address another argument raised by Mr Weightman. It was that the actual work being done by the plaintiff for his wife’s business was so small, so minor, so trifling, that I would ignore it, relying on the principle that de minimis lex non curat. He then referred me to what I said in Collins v SASTC [2012] NSWDC 225; (2012) 11 DDCR 198 between [34] and [41] and, in particular, to an authority I cited, Moran Health Care Services v Woods (1997) 14 NSWCCR 499 (C.A.) in which Mason P (with whom Beazley JA and Grove AJA concurred) cited the principle as de minimis non curat lex at 504B, using the word order of a famous limerick. Since the plaintiff has not persuaded me that there has been any change in circumstance since 2 February 2006, that there has been any change in economic circumstances since then, it necessarily follows that I am not persuaded that whatever the value of the 2 to 3 hours’ work that the plaintiff does for his wife’s business has, that it is a true reflection of what the plaintiff can earn in employment or self-employment outside the police force.

87. It is now 10 past 5. Any further reasons for judgment required?

PETERSON: None, unless you want to continue.

HIS HONOUR: Well I think I've addressed everything haven't I?

BLUME: I think so, yes.

HIS HONOUR: Yes. I have inquired of the solicitors representing the parties today whether any further reasons for judgment are required. In their exhaustion, like mine, they can think of no other areas of evidence or submissions that I need to canvas to conclude this judgment.

For those reasons I confirm the decision of the defendant made on 29 January 2015.

Annexure A

MilesvSASTC020206 (50.7 KB, doc)

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Decision last updated: 26 April 2016