Moss v SAS Trustee Corporation (No 2)

[2016] NSWDC 287

District Court

New South Wales

Medium Neutral Citation:

Moss v SAS Trustee Corporation (No 2) [2016] NSWDC 287

Hearing dates:

29 - 31 August 2016

Date of orders:

31 August 2016

Decision date:

31 August 2016

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Decision the defendant made on 29 January 2015 set aside

 

Determined that the plaintiff's superannuation allowance be increased to 81.94% from 21 December 2012 to 22 December 2015 and to 85% from 23 December 2015 to-date and continuing

 Defendant to pay the plaintiff's costs

Catchwords:

POLICE SUPERANNUATION – Application for increased pension allowance – Plaintiff had a small earning capacity between discharge on 20 December 2012 and 22 December 2015 – Question of extent of incapacity for work outside the police force thereafter – Work should not be so menial as to be inconsistent with plaintiff’s education, experience and background – Plaintiff should not be humiliated by being required to undertake part-time, menial work – Plaintiff totally incapacitated from 23 December 2015

Legislation Cited:

Police Regulation (Superannuation) Act 1906

Cases Cited:

Collins v SAS Trustee Corporation [2012] NSWDC 225

Category:

Principal judgment

Parties:

Mathew Robert Moss (Plaintiff)
SAS Trustee Corporation (Defendant)

Representation:

Counsel:
Mr P O’Rourke (Plaintiff)
Mr M Weightman (Solicitor) (Defendant)

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

File Number(s):

RJ355/15

Publication restriction:

No

Judgment

1. HIS HONOUR: The plaintiff, Mr Matthew Robert Moss, is a former Detective Sergeant of Police. He was attested as a Probationary Constable of pPlice on 2 April 1982 and thereupon became a contributor to the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906 (“the Act”).

2. On 29 November 2012 the Police Superannuation Advisory Committee (PSAC) established by the Act determined that the plaintiff was incapable of discharging the duties of his office on account of these infirmities;

"(1) Healed comminuted fracture of the upper third of the shaft of the left humerus and associated soft tissue injuries with retained shot gun pellets;

(2) Weakness in the left shoulder and left hand and sensory loss of the median and palmar nerves;

(3) Chronic Post-Traumatic Stress Disorder [PTSD];

(4) Major depressive disorder secondary to PTSD;

(5) Severe high frequency sensorineural deafness in the left ear.”

As a result of that certification, the plaintiff was medically discharged from the New South Wales Police Force on 20 December 2012. The Commissioner of Police accepted from the beginning that the first, second and fifth infirmities which I have just listed were caused by the plaintiff’s having been hurt on duty. Eventually, after proceedings were commenced in this Court, the Commissioner of Police also accepted that the third and fourth infirmities were also caused by the plaintiff's having been hurt on duty.

3. Because the Commissioner of Police accepted that a number of the plaintiff's infirmities were caused by his having been hurt on duty ab initio, the plaintiff commenced to receive a superannuation hurt on duty allowance on 21 December 2012, the day after he was medically discharged. Once the Commissioner of Police had accepted that the plaintiff's psychiatric infirmities were caused by his having been hurt on duty, the plaintiff applied on 8 July 2014 for an increase in his hurt on duty superannuation allowance, pursuant to s10(1A) of the Act. On 29 January 2015 PSAC, pursuant to a delegation made by the defendant, determined that the plaintiff's superannuation allowance be increased from the basic 72.75% the salary of his office, to 74.32% of the salary of his office, an increase equivalent to 12.81% incapacity to work in the open labour market. The plaintiff was aggrieved by that decision and brings an application to this Court seeking to have that determination of the defendant set aside and replaced by the grant to him of a higher allowance pursuant to s10(1A) of the Act.

4. As the case was ultimately presented and argued, there is no issue that the plaintiff is entitled to have the defendant's determination set aside and replaced by a higher superannuation allowance. Mr Weightman, counsel for the defendant, submitted that the plaintiff's pension should be increased to 81% until December 2015, and thereafter it should be increased to 82.55%. Mr Weightman submitted that the extent of the plaintiff's incapacity up until December 2015 should be seen as being two thirds, and after December 2015 should be seen as being four fifths.

The plaintiff’s background

5. While it is not strictly necessary for me to do so, I should advert to the plaintiff's background because that assists in the determination of the matter. The plaintiff obtained the higher school certificate in 1980. He was born on 9 February 1963. At the time he obtained the higher school certificate, he was 17. He wanted to join the NSW Police. When he completed his school education, he was too young. He commenced an apprenticeship as a machinist with Cyclops Toys in 1980 immediately after completing the HSC, but never intended to complete the apprenticeship because he wished to join the NSW Police. In January 1982 he commenced at the New South Wales Police Academy, which was then at Redfern. He successfully completed the Academy course and on 7 April 1982, at the age of 19, was attested as a Probationary Constable of Police. Initially the plaintiff performed general duties in Balmain, Glebe and Annandale. In January 1985 he commenced full time duty with the Tactical Response Group. In the meantime he had been promoted to Constable Police on 2 April 1983. After joining the Tactical Response Group, the plaintiff was appointed a Constable First Class in April 1987 and a Senior Constable in April 1991.

Injury on 20 September 1985

6. The plaintiff was involved in an incident at Condell Park on the 20 September 1985. That incident caused the infirmities numbered (1), (2), and (5) in the list above and probably was the initial trigger for the development of the chronic PTSD which in due course lead to the Major Depressive Disorder. The event of 20 September 1985 is graphically described by the plaintiff in a report, which he prepared on 5 November 2011, made in prospect of his being medically retired. The report is exhibit J. It contains this matter:

"The first [of two major incidents] was my near fatal shooting incident. This occurred on 20 September 1985. At the time I was a 22 year old Constable attached to the Tactical Response Group. I was in the entry team executing a search warrant. After gaining entry into the premises, I was ambushed by the offender who was armed with a double barrel shotgun, and shot me in the left arm from 18 inches away. After being stabilised at the scene by the ambulance, the most evident memory that used to wake me was my being given the last rites, by the priest at the Bankstown Hospital."

As a boy the plaintiff had been an acolyte at his local parish church. He had attended a number of nursing homes with his parish priest to assist the priest in administering the last sacraments. The plaintiff knew the liturgy involved and clearly was of the view that the sacrament of the Anointing of the Sick should only be given to those in extreme danger of death. Clearly waking to realise that he was being anointed would have been a very shocking and sobering experience. It also indicates the extent of the injury that the plaintiff suffered. Later in exhibit J the plaintiff went on to point out that in 2011, 26 years after the event, there were still present in his body 160 shotgun pellets, in his left arm and in his lungs.

7. The plaintiff, after that event, was taken to the Bankstown Hospital and from there taken to the Prince of Wales hospital. He came under the care of Dr Alan McJanet, an orthopaedic surgeon and Dr Michael McGlynn, a plastic surgeon, and also a vascular surgeon whose name the plaintiff does not recall and whichis not recorded in the contemporaneous medical records which are exhibits K and L. Exhibit K is the discharge summary from the plaintiff's first discharge from the Prince of Wales Hospital on 7 November 1985. That discharge summary records the following injuries:

"(1) Multiple shot pellets to left shoulder/axilla [armpit],

(2) Comminuted fracture of the shaft of the left humerus with minimal radio graphical union despite external fixateurs

(3) Damaged left brachial [plexus] - repaired,

(4) Peripheral nerve lesions - predominantly radial (left brachial plexus injury),

(5) Large skin loss left shoulder - rotation/SSG."

The surgery, ultimately, was extremely effective. However, there was a complication. When the plaintiff was discharged, there was still external fixateurs applied to his left shoulder. The discharge summary notes that Dr McJanet was to arrange an electrical stimulation device to promote union of the humerus, which was clearly very slow. However, whilst attending physiotherapy, the plaintiff acquired a methycillin resistant staphylococcus infection which caused his readmission to the Prince of Wales Hospital on 11 March 1986 for removal of the fixateurs. The plaintiff was eventually discharged from the Prince of Wales Hospital on this occasion on 17 March 1986.

8. Clearly the injuries sustained on 20 September 1985 caused the first and second infirmities, infirmities resulting from the shotgun blast to the plaintiff's left shoulder and the brachial plexus lesion, leaving the plaintiff with a neurological deficit in his right upper limb affecting not only the shoulder but the hand as well. The ENT evidence also tells me that the plaintiff suffered traumatic deafness in his left ear as a result of the discharge of the shot gun so close to that ear.

9. Exhibit J was written by the plaintiff to advise of the onset of disabling symptoms of PTSD in late 2004 and the onset of disturbing dreams concerning incidents that had happened to the plaintiff over his period in the Police Force, and of two major incidents, that of 20 September 1985 and another which occurred in 1990 to which I shall, in due course, refer. The plaintiff returned to restricted duties in the Police Force on 21 April 1986. He returned as an instructor, training of other members of the Tactical Response Group. The evidence tells me the plaintiff saw a psychiatrist in 1986, but unfortunately there is no evidence from that psychiatrist, Dr Spraggs, before me. The plaintiff returned to unrestricted duty with the TRG on 29 December 1986. The medical evidence persuades me that this return to work was medically unexpected, and a testament to the plaintiff's resolve to continue in his work in the Police Force. For example, Dr James Bodel who examined the plaintiff on 6 October 2011 said this in his history, relating to the event of 20 September 1985:

"To my surprise, he was able to return to work, initially into lighter duty activities and eventually was cleared for operational duties. He was away form work altogether for a period of about 14 months and it was about two to three years before he was cleared for operational work. All he wanted to do was to continue in active front line policing work."

Clearly the times provided by Dr Bodel about when the plaintiff returned to work on restricted duties and when he returned to front line duties are out of kilter with those I have quoted. I have quoted those given in the evidence. The important point to note is that Dr Bodel, who has examined many, many workers in many, many different industries and occupations thought that the plaintiff's ability to return to unrestricted work after such severe injury was surprising.

Injury in 1990

10. In December 1989 the plaintiff was transferred from the Tactical Response Group to the Special Weapons and Sperations Squad (SWOS). In terms of risk and responsibility, this was policing at a higher level. The risk that the plaintiff ran as a member of SWOS and the responsibilities which were placed on him were increased. In 1990 there was an incident at a block of Housing Commission apartments at Surry Hills. In exhibit J the plaintiff said this about that event:

"The second [major] incident that I used to dream about stemmed from a shooting murder of five people at Surry Hills in a Housing Commission unit block. This occurred, from the best of my memory, in 1990. At the time I was attached to [SWOS]. I was on call at the time and my colleague and I received information that there was a shooting at Redfern. The details were very vague, on arrival at the incident there were a number of General Duty Police, at the scene. The information given to us inter alia was, there was an elderly man shot dead in the front foyer and a female shot dead in a unit on the ground floor. In company with the other police from SWOS, we armed ourselves and we entered the unit block. After entering the unit, I saw the man deceased at the bottom of the stairwell. He had suffered a shotgun blast to his head. At the same time, I remembered was still being able to smell the cordite from the discharge of the shotgun. Because the smell was still evident, I formed the opinion that this incident had only just happened, because this smell would ordinarily disperse quickly because the area was well ventilated. I then made my way in the bedroom where the young lady was deceased in a bed, her stomach had been blown out; I formed this view because her intestines, the contents of her stomach were on the ceiling above her. The pellet marks were also on the ceiling above her.

After clearing the front foyer and the bedroom of the deceased young female, I moved to the next door unit. This unit had a middle security door, which was locked. I could see the front wooden door was open about six inches. I could see that there was a shotgun pellet damage through the fly screen. I could also see a human brain lying behind the security door and in front of the open wooden door. I also saw a deceased female lying on the kitchen floor. Because the security door was locked, it was necessary for us to open the door and clear this unit. I also thought to myself that the person responsible had not been arrested, and that there was real prospect that he was still in the unit block and considering this person had already shot and killed three people, I was confident that he would not be too concerned in challenging police.

After entering and clearing the unit of the elderly lady whose brain was lying at her front door, we made our way to the first floor, we made our way into a unit that had a front door open, there was a middle aged woman who had been shot at close range in the head, her skull and brain were on the lounge room wall, there was a middle aged man who had also suffered a shotgun injury to his head.

He was conscious and speaking; he was very pale and suffering severe blood loss. I formed an opinion in respect to this man, I was surprised that he was alive considering the serious nature of his injury, his skull was blown off and a portion of his brain was blown away, however he was able to indicate that a man with a shotgun had just shot his wife and had shot him. I was made aware that the ambulance was downstairs and awaiting instructions from police. I briefed the paramedics on the way to the unit, of the nature of the injuries of the conscious man. I remember holding the man's hand and reassuring him that the paramedics were going to get him to the hospital. I spoke to him about his wife and within three minutes of the paramedics applying the bandage to his head he was dead."

Exhibit J does not tell me anything further of the outcome of that response to the death of the five persons described by the plaintiff in the report. The report then says this:

"These two incidents were the only two of many incidents that I have been exposed to in 29 and a half years of policing. There have been many crimes scenes I have attended at the homicide squad, and many high risk incidents at the armed robbery squad."

The event of 1990 was clearly a very horrifying one and one, fortunately, which does not often occur in our society. However, it indicates the risks to which plaintiff was exposed over many, many years he was a member of the TRG and of SWOS. Eventually, the plaintiff's work was, to an extent, acknowledged when, on 16 October 2008, he was awarded a "Commissioner's Commendation for Courage". The citation for that award is this:

"Constable Moss sustained life threatening injuries and was considered unlikely to ever return to full operational duties. The perseverance and commitment of the officer demonstrates [sic] the attributes of a dedicated and conscientious police officer."

That is a clear reference to the event of 20 September 1985 which was acknowledged some considerable time later in 2008.

Work outside the TRG/SWOS

11. In January 1984 the plaintiff was transferred for one year to the Major Crime Squad South Region and that involved moving but a short distance from Surry Hills to Strawberry Hills. This was a part of normal job rotation. In January 1995 he commenced work at the Rose Bay LAC as a detective. In January 1998 he was attached to the Homicide Squad, which by then had been relocated from central Sydney to Parramatta. In June 2004 he was promoted to Sergeant and was made a team leader with the Armed Robbery Squad, again based at Parramatta. The plaintiff remained a member of that Squad until his medical discharge.

Onset of PTSD

12. The plaintiff's medical discharge resulted from the onset of symptoms of chronic PTSD. In exhibit J the plaintiff said this:

"I have noted the contents of the attached file and in accordance with directions given indicate, that in late December 2010 and early January 2011 I began waking in the early hours of the morning between 3am and 4am. I never thought much of it at the time and there was no trigger insofar as my dreams, at that time. This continued off and on for a couple of weeks. This disturbed sleep pattern developed into a series of dreams where I was re living a number of traumatic incidents that I had experienced as a younger man."

The plaintiff then went on to describe the two major incidents in which he had been involved and finished that part of his report by pointing out that they were only two of the many incidents to which he had been exposed in his nearly 30 years of policing.

13. The plaintiff told me also that on 7 June 2010 he attended the morgue concerning the shooting murder of a security guard in Sussex Street on the previous day. The victim was identified by the plaintiff as Mr Gary Allibon. The plaintiff described the procedures involved after a murder of a human being, of how the body had been taken from St Vincent's Hospital to the morgue and the need to have his property identified. The body was taken in a body bag to the morgue and the body bag was then placed on an examination table, and when the body bag was opened it was found that the victim was lying on his face. When the body was turned onto its back, the plaintiff was shocked because of the similarity of appearance between the deceased victim and the plaintiff himself.

14. The plaintiff realised that by this time that he was not performing his work to the standards that he demanded of himself. He told me that he became diffident about making decisions, being reluctant to take them, and even when he took them, second guessing the decisions that he had made. He became anxious and his memory and concentration were affected. He referred to himself as being "gun shy", reluctant to leave the office and to go out on the job. Sometimes he would go to the lavatory and spend a half an hour there to disguise the fact that he was reluctant to leave the office and go out into the field to perform his job. He went on to tell me about nightmares and flashbacks of various different jobs that he had attended over the years. As his he sleep was affected, he decided to try get to sleep by taking alcohol and that caused its own problems. The plaintiff felt that his life was falling apart, disintegrating. He went off on sick report on 9 September 2011 and was not to return to work prior to his medical discharge.

13. The plaintiff applied for medical discharge on 7 February 2012. For the purposes of his discharge, the plaintiff was sent by the Commissioner of Police to see Dr Doron Samuell, a psychiatrist, and was sent by the defendant to see Dr Powell, an orthopaedic surgeon, and Dr Payten, an otorhinolaryngologist. He was also sent to see Associate Professor Croxson, an otorhinolaryngologist. He was also sent by the defendant to Dr Peter Whitton, a psychiatrist. Armed with that medical evidence and a report from the plaintiff's treating psychiatrist, Dr Anthony Durrell, PSAC made the decision which it made, which I quoted, on 29 November 2012.

Work sought after discharge

16. Commencing in 2013, the plaintiff applied for a number of jobs. Exhibit M of the plaintiff's chronology, there are 13 jobs for which the plaintiff applied between 25 March 2013 and 28 June 2015. They are these, the date which I give after the position applied for is the date of the plaintiff's application:

1. Principal Investigator, Office of Fair Trading, 25 March 2013

2. Governance and Investigations Projects Officer, Department of Fair Trading, 27 May 2013

3. Human Source Handling, NSW Crime Commission, 20 June 2013

4. Principle Investigator, Department of Finance and Services, 26 September 2013

5. Sergeant, Sherriff's Office at Parramatta, 5 December 2013

6. Assurance and Investigation Specialist, Roads and Maritime Services, 13 June 2014

7. Manager, Security Concierge Services, Department of Premier and Cabinet, 6 June 2014

8. Investigation Review Officer, Information and Privacy Commission, 6 June 2014

9. Senior Investigator, NSW Treasury, 6 June 2014

10. Investigations Officer, NSW Electoral Commission, 28 January 2015

11. Traffic Emergency Controller, Transport NSW, 3 February 2015

12. Casual Correctional Officer, 20 February 2015

13. Compliance and Enforcement Officer, Security Licensing and Enforcement Directorate, State Crime Command, NSW Police, 28 June 2015

17. The plaintiff was given three interviews following upon those applications. The first was with the Department of Fair Trading and the evidence suggested that it was in connection with the first application that the plaintiff made to the Fair Trading, but it may have been in connection with both his applications to that department. The plaintiff did not perform very well at all at interview. The plaintiff told me that there was a build-up of anxiety prior to his attending the interview itself. Immediately prior to the interview he suffered from what he described as a panic attack and the symptoms which the plaintiff described to me, which he self-described as a panic attack, appear to me to be very similar to the symptoms described in DSM 5. The plaintiff had trouble concentrating on the questions being asked of him and trouble focussing on the task at hand. He repeatedly asked that questions be repeated, to give him time to try to think what the answers might be. He also used other methods to try to gain himself some time to try and answer questions which one would expect him to answer easily. The plaintiff told me that he performed very poorly and as a result of the interview he felt humiliated. He was not offered any job by the Department of Fair Trading.

18. The plaintiff was also offered an interview for the job he applied for with the NSW Crime Commission. He applied for that job because he was asked to do so: he was rung up and told to apply. He knew every member of the interviewing panel. The plaintiff thought it was going to be a "lay down misere." He so described it not only to me, he also described it contemporaneously to his wife in those terms. The plaintiff had no need to be anxious when confronting a group of men by whom he was well known and whom he knew well. The group of men had known of the work which he had done for the best part of thirty years in the NSW Police. However, again, the plaintiff presented very poorly and told me in shorthand fashion that it was a mirror image of the interview with the Department of Fair Trading. The plaintiff said that he was "a mess." He felt embarrassed and humiliated by his inability to cope with the interview. The plaintiff described himself as having "crashed and burned." He was not offered the job for which he had been called in by those who knew him well for an interview. He did not get the job which was thought to be a "lay down misere."

19. The other interview the plaintiff obtained was with the Sheriff's Office. He attended an interview at the Parramatta Court House with one Sheriff's officer and an administrative person. The job was clearly within the ability of a person with the plaintiff's background. In fact, having worked with Sheriff’s officers for the last 22 years I am confident that this ought to have been a lay down misere for the plaintiff. However, again the plaintiff performed in interview in much the same way as he had performed in his earlier interviews. In short form, the plaintiff told me that he was anxious, he was unable to concentrate, and he was unable to answer easy questions that were put to him at the interview.

20. It is clear to me that the plaintiff performed poorly at interview because it required him to interact with those interviewing him and one of the problems with a chronic PTSD, combined with a Major Depressive Disorder is the inability of a person both to concentrate and to interact with other human beings.

Courier work

21. The plaintiff is married to Mrs Gabrielle Moss who is a solicitor who could be described as a "transactional lawyer" or "property lawyer." Her forte appears to be conveyancing. The plaintiff and his current wife have known each other since they were teenagers. The affection that the plaintiff had for his current wife can be seen from his wife's evidence that after his shooting in 1985 the plaintiff asked for her to attend upon him when he was in serious jeopardy of death. She did visited him, and visit him each day he was in hospital until his discharge. However the plaintiff's current wife married another man, but they established contact again in 2000, commenced to cohabit in 2005 and married in 2007. Since September 2011 the plaintiff's wife has been practising from their home at Westleigh.

22. She has for many years, about 20 years, used Mr Andrew McNeill as her city agent/settlement agent. Mr McNeill in recent times opened his own business known as Spectrum Client Solutions. Spectrum would pick up documents from Mrs Moss's home office and from other solicitor's offices on the North Shore, take the documents into the city and make a return service later. Mrs Moss arranged for Mr McNeill to offer the plaintiff work. The work was essentially as a courier driver. The work was theoretically for three to four hours per day, five days per week. The plaintiff described his hours as being from 6.00am to 9.30 or 10.00am. He would leave home taking documents from his wife's practise and pick up documents from other practises between Pennant Hills, Hornsby and then down the Pacific Highway into the CBD of Sydney. He would then drop them off at Spectrum's office in the city, and would then drive himself home.

23. The plaintiff persevered with that job from 21 October 2014 to 22 December 2015. The job ended because the plaintiff resigned, or to use his expression, "sacked himself." The work was not over taxing, yet the plaintiff made many mistakes. He would sometimes forget to make a pickup or drive past the place of pick up and then have to turn around and return to the place of pick-up to collect documents. He was sometimes, often, very early for a pick up, but sometimes he was late. Complaints were made by various legal practitioners, either that the plaintiff was arriving too early or that he was surly and uncommunicative. The plaintiff described himself as making simple, fundamental errors in his work and those errors arose from a failure to concentrate, a failure to follow written instructions given to him at the commencement of each run by the principal of Spectrum, from listening to the radio and being distracted, and often by misreading an address, or not noticing it on the pick-up list and driving past it, sometimes forgetting to pick up at all. The plaintiff told me that he decided to throw in the job even though Mr McNeill had not made any criticism of him, but it is clear from Mrs Moss's evidence that criticisms were made of the plaintiff's performance, even if they were not being communicated by Mr McNeill to the plaintiff. Eventually, when Mr McNeill became disenchanted, the plaintiff resigned his job. There is, as has been submitted by the defendant's counsel, some conflict as to the circumstances in which the plaintiff came to give up the courier job, but there was no dispute that, in essence, the work was beyond the plaintiff. The plaintiff has not looked for work since.

Medical opinions

24. It is perhaps convenient at this time to consider the medical evidence as to the extent of the plaintiff's incapacity to work. The report of Dr Durell is dated 6 November 2011 and it is the one which was obviously submitted to PSAC. Under the heading "Prognosis", Dr Durell's report contains this opinion:

"The prognosis is for long term problems associated with his PTSD and I anticipate permanent work incapacity in terms of Mr Moss being gainfully employed at work in keeping with his training, experience and education."

Dr Durell was asked to comment on the degree to which the plaintiff's condition impinged upon his ability to continue to perform the functions of a police officer. Dr Durell expressed this opinion:

"Mr Matt Moss's work caused mental injuries generates significant and permanent levels of work incapacity. I cannot, from a psychiatric perspective, see Mr Moss returning to the NSWPF in any stable or mentally safe capacity in the foreseeable future."

Dr Durell was then asked to comment on the degree to which the plaintiff's position impinged upon his ability to perform work outside the police force. Dr Durell said this:

"It is very unlikely, looking into his case, that he will be capable of any return to workforce outside the NSWPF. My clinical opinion is that he is permanently and totally incapacitated by his PTSD from engaging in employment that is commensurate with his experience, training and education."

The plaintiff remained under the care of Dr Durell in 2012, 2013, 2014 and 2016. The plaintiff believed that he had attended upon Dr Durell in 2015, but there is no evidence to confirm that and the records produced on subpoena by Dr Durell suggest that there was no such attendance. Nothing, in my view, turns on that. The point is that way back, at the end of 2011, Dr Durell, in essence, thought the plaintiff was totally incapacitated.

25. As I have earlier mentioned, Dr James Bodel, an orthopaedic surgeon, saw the plaintiff on 6 October 2011. Dr Bodel was of the opinion that the plaintiff's physical injury to his left shoulder contributed to his inability to remain in frontline policing duty. He expressed a guarded prognosis about the plaintiff's left shoulder condition. He went on to express this view, "This gentleman will struggle to engage in any form of paid employment outside the police service at the present time on the basis of his current physical and psychological injuries." That observation was objected to by learned counsel for the defendant, but I admitted it on the basis that it has been the long tradition in the Courts of this State that any medical practitioner is entitled to express an opinion on any area of medicine, because most medical practitioners are trained in medicine, surgery and also psychiatry. The weight to be given to an orthopaedic surgeon's opinion about a psychological condition, of course, is lesser than that which one would give to the opinion of a specialist psychiatrist. Nevertheless, bearing in mind what Dr Durell has said about the plaintiff's incapacity, weight must be given to Dr Bodel's opinion on the same issue.

26. The plaintiff has also been examined by Dr James Scougall, an orthopaedic surgeon. Dr Scougall, in essence, agreed with the opinions expressed by Dr Bodel about the condition of the plaintiff's left shoulder. About the left shoulder, the Doctor said this:

"There is atrophy of the thenar eminence in his left thumb consistent with permanent damage to the median nerve. He complained also of altered sensation to light touch and a feeling of pins and needles on the volar aspect of all the fingers and thumb of his left hand, confirming permanent damage to the median nerve and indicating permanent damage to the ulnar nerve as well. There was no obvious intrinsic muscle wasting and muscle power in the ulnar nerve distribution was satisfactory. However, he had some weakness of flexion of the index finger of his left hand as compared with the right, confirming permanent damage to the motor function of the median nerve distribution.

In addition, he has significant scarring and a very obvious cosmetic deformity in his upper left arm. There is marked wasting of the muscles around his left shoulder. There is a cosmetically obvious curved 25cm scar on the anterior and lateral aspect of his left upper arm. There is hollowing, soft tissue swelling and complete rupture of the biceps tendon in shoulder region. However, he had some weakness in forward flexion in his left shoulder, but abduction with his arms held by his side was satisfactory."

Dr Scougall accepted that it was reasonable that the plaintiff had fairly constant daily pain in the region of his left shoulder and arm and a weakness and a loss of tactile sensation in his hand. The plaintiff, for example, told me that when he was holding a set of keys in his left hand he was unaware from feeling that he was doing so. As to incapacity, Dr Scougall said this:

"The degree to which his condition impacts on his ability to perform work outside NSW Police is comparable to the degree of difficulty that he is having in performing his work for the police. He will be restricted in all work outside NSW Police that required normal function of the left shoulder, arm and hand."

Later in the report, Dr Scougall confirmed his opinion that the plaintiff's left arm injury placed him at "significant disadvantage."

27. Dr Payten, an otorhinolaryngolost, re-examined the plaintiff on 19 September 2014. The doctor was asked a number of questions about the extent of the plaintiff's incapacity by the defendant. In answer to one set of questions, Dr Payten said this:

"The severe left sided high frequency sensorineural deafness and tinnitus suffered by Mr Moss does prevent and restrict him in undertaking certain activities and functions because he is not able to hear properly from the left ear and he has difficulty with communicating with people speaking to him from the left side. He has difficulty localising the source of a sound, such as localising where a telephone is ringing from, and he has also over all difficulty in hearing conversation in the presence of background noise."

In answer to further questions, Dr Payten said this:

"Because of his poor hearing in the left ear, his capacity for work in areas that require good hearing is affected. He has not worn a hearing aid in the left ear but even if he did so, a hearing aid is not very effective in the presence of background noise. He would, for example, not be suited to bar work as he would not be able to hear people speaking to him from the left side, and he would not be able to hear easily in the presence of background noise even when speaking to people in front of him. He would not be suitable for doing security work where good hearing is required in order to localise a source of the sound and this could be dangerous as he would not be aware of warning sounds while investigating possible break ins, etc."

Dr Payten was then asked what kind of work the plaintiff could undertake, considering his medical condition. Dr Payten said this:

"Mr Moss is capable of performing work that does not require good hearing, such as office work, stocking shelves, factory work in quiet surroundings, mowing lawns with ear protection. He could also be a driver."

28. Later the doctor said that the plaintiff did not lack motivation to work. The fifth question posed to the doctor was this, "What is the applicant's likely capacity to undertake work in the future having regard to those medical conditions?" The answer given by the doctor is this:

"The applicant's likely capacity to undertake work in the future having regard to his left sided high frequency sensorineural deafness is that he will find it difficult to obtain work in the future, given his age and lack of skills in areas other than those which he has through his occupation in the Police Force. Since communication is one of his main skills through being in the police force and since that skill is diminished significantly by his left sided hearing loss, I think it would be difficult for him to find suitable work in the future."

In other words, what Dr Payten is saying is that given the plaintiff's background and his work history, in essence, even his deafness, due to the discharge of the shotgun back on 20 September 1985, was sufficient to keep him out of the workforce.

29. The plaintiff was examined at the request of his solicitors by Dr Peter Anderson, a consultant psychiatrist, on 27 September 2013. Dr Anderson agreed with the psychiatric infirmities certified by PSAC. In a supplementary opinion, he expressed some views about the plaintiff's capacity for work. In par 3 of the supplementary report, Dr Anderson said this:

"He is probably not able to do work that requires a very high level of concentration, multitasking, problem solving, decision making.

He is likely to suffer relapse of his conditions with triggering of anxiety and post-traumatic symptoms in the face of stress so he is unfit for work which involves stress, including work reminiscent of police work.

Noting that he becomes irritable excessively out of proportion to stimuli there are limitations on the capacity to work with the public or with others."

In answer to another question, the Doctor said this:

"He is likely to be able to undertake a range of work, especially part time or casual which does not involve excessive stress or excessive concentration, demand or excessive requirement for equanimity in the face of dealing with others."

I have concentrated on that formulation to try to fit a job that I know of to that description. I have been unable to do so. Furthermore, learned counsel for the defendant, when I asked him about the same matter, was unable to provide me with a description of an appropriate job.

30. Because of the issues raised in this application, the plaintiff was again interviewed by Dr Anderson on 11 March 2016. The date of that examination is important because it is after the plaintiff completed his work with Spectrum. It was also after the plaintiff made his many applications for employment. The Doctor was asked a number of questions by the plaintiff's solicitors. The second was whether the infirmities certified prevented or restricted the plaintiff in undertaking any activities or performing any particular functions. The Doctor said this:

"He has problems with concentration and memory, especially when under stress. He has difficulty coping with stressful situations. He is irritable, especially when anxious, effecting social interactions whether in a workplace or elsewhere."

The Doctor was then asked how such limitations affected the plaintiff's capacity for work. He said this:

"He is not fit for work that requires significant levels of concentration, multi-tasking, problem solving or decision making.

He is likely to suffer relapse of his psychiatric injury, the triggering of anxiety and re-experiencing symptoms in the face of stress. Thus he is unfit for work which involves stress, including work reminiscent of police work such as investigatory or security work.

Irritability out of proportion to stimuli limits his capacity to work with the general public or with other workmates."

The Doctor then expressed the view that the plaintiff's ability to work was likely to be limited to part time or casual work, again within the parameters earlier expressed. The Doctor was then asked this question, and gave this answer:

"Is our client totally incapacitated for work on the open labour market due to the infirmities? If so, how is this apparent?"

"Your client was working in what might be called sheltered work as a courier working part time, four hours a day, for an estimated 12 months until December 2015. He described to me anxiety doing this job, mistakes made, some aggravation of some of his symptoms while doing the job, and finally a decision to resign or cease the work for reasons to do with his health. It is difficult to say that he is totally incapacitated for work on the open labour market in view of his sustaining half time courier work of a fairly sheltered nature for a friend of his wife's for 12 months. It may be that this would have been more sustainable if the hours had been shorter or there had been longer breaks."

The doctor went on to express the view that the plaintiff had "some minor residual capacity for employment on the open labour market." He put that as "approaching 100%, but not 100%." However, I ask myself, perhaps rhetorically, what work could a man do if he could not work four hours a day in work of a fairly sheltered nature for a friend of his wife, which friendship guarded him from criticism?

Consideration

31. I ask myself what employer would take on such a man knowing those circumstances? The answer which readily comes to mind is none. Dr Anderson was then asked to comment on the various jobs for which the plaintiff was given an interview, and on various jobs which a report of the Vocational Capacity Centre considered he was capable of doing. So enamoured of the report of the Vocational Capacity Centre was the defendant that it was not tendered in evidence. However, Dr Anderson was of the view that the plaintiff was not able to do any of the three jobs for which he was granted interviews, and that he is not capable of doing any of the jobs certified as appropriate for him by the Vocational Capacity Centre.

32. The medical evidence all points in one direction. The medical evidence points in the direction of total incapacity. But for one year as an apprentice machinist, the plaintiff has no work experience outside the NSW Police Force. He worked there between 2 April 1982 and going on sick report on 9 September 2011: a period of at least 29 years, approaching 30 years if one takes into account three months at the Police Academy. The plaintiff appears on the evidence before me to have been an extremely dedicated and effective member of the Police Force. Eventually his stoicism and his dedication to his work were recognised in 2008 because of his determination to return to active full time policing work following upon a major injury sustained on 20 September 1985; an injury which would cause most men to give up work entirely.

33. In Collins v SAS Trustee Corporation [2012] NSWDC 225, I said this:

"[34] Learned counsel for the plaintiff, Mr Edwards, has referred me to the decision of the Court of Appeal in Moran Health Care Services v Woods (1997) 14 NSWCCR 499, that was a challenge to a finding by Burke J of total incapacity. The challenge was unsuccessful. The challenger was Mr SG Campbell (as his Honour then was). The judgment of the Court of Appeal was given by Mason P, with whom Beazley JA and Grove AJA concurred. His Honour commenced with a reference to the locus classicus concerning incapacity, the decision in Ball v William Hunt & Sons Ltd [1912] AC 496 where Lord Loreburn LC said at 499:

'In the ordinary and popular meaning which we are to attach to the language of this statute I think there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him and there is partial incapacity for work when such a defect makes his labour saleable for less than he would otherwise fetch.'

[35] The headnote to Moran Healthcare Services v Woods appropriately sums up the decision:

'(1) In assessing whether a worker is totally incapacitated the Court is involved in the assessment of a capacity ‘for work’ having regard to the realities of the labour market in which the worker is to be engaged. The Court must assess whether the disabilities or the pain or both from which the worker suffers by reason of his or her compensable injuries are such that the worker is able to do those things which will permit the worker to do the work in a relevant labour market.

(2) The ‘eye of the needle’ test does not represent a correct approach to the concept of ‘total incapacity’. There will be a number of cases where, despite evidence or concession that the worker might be able to perform some task in some circumstances, a finding of total incapacity is sustainable in law. In this, as in most areas of the law, the requirement of reasonableness and the principle clustering around the maximum de minimis non curat lex have work to do. Must not be forgotten that workers compensation legislation is remedial.'"

In Collins' case the plaintiff was under the care of Mr Roger Peters, a Consultant psychologist. At [39] I said this:

"However, Mr Peters makes valid points referring to the fact that the work which the plaintiff should be required to look for should not be so menial as to be inconsistent with his education, experience and background, such that it would remove his self-esteem."

34. That principle applies in the current case. One of the constant things the plaintiff told me about was of how humiliated he felt after each of his unsuccessful interviews, especially the unsuccessful interview with the Sherriff, and of how humiliated he felt not being able to carry out the courier work for Spectrum. If I may say so, the plaintiff has had a distinguished career in the NSW Police Force which deserves the recognition of our community as well as its thanks. The plaintiff should not be humiliated by trying to find some form of work for one or two hours per day, perhaps every other day, and my knowledge of the labour market is that such work is not available, except to those who are probably suffering from the sort of disabilities that confine them to work in sheltered workshops, and the plaintiff would be equally humiliated if he were required to attend upon such a place of employment. I have come to the view that, in light of how the plaintiff performed trying the work with Spectrum, he should be seen as being totally incapacitated for work outside the NSW Police as from 23 December 2015.

35. The question then becomes, what was the extent of his incapacity prior to that time? The authorities make it clear that that is an inquiry that ought be based on economic considerations. I do know that the plaintiff's annual salary with Spectrum amounted to $30,000 per annum. I take that figure to be in 2015. A Detective Sergeant of Police in the plaintiff's position would have earned, up until 30 June 2015, $116,149 per annum. From 1 July 2015 that salary increased to $118,519 per annum. That can be averaged out at $117,000 per annum. That is what the plaintiff would have earned had he stayed as a Detective Sergeant of Police carrying out the duties of his office.

36. In the open labour market it has been my experience that persons such as the plaintiff would obtain, for doing the same sort of work, a higher salary inter alia, because there is not the security involved in being a member of the NSW Police. There is not a security of being, in essence, a public servant. I would expect the plaintiff to be earning, outside the Police Force, more than $117,000 per annum in 2015. The job with the Sherriff had an annual remuneration of $80,000 per annum. The plaintiff has put before me the description of a job with the Police Integrity Commission, which had a salary package of up to $138,304 per annum, as at 4 March 2011. Increasing that salary package by 2.5% per annum from 2011 into 2015 but rounding it down, one comes to a figure of $150,000 per annum. Outside the police force uninjured, in my view, the plaintiff could command a salary of at least $120,000 per annum.

37. During 2015 he earned $30,000 per annum. $30,000 is three quarters of $120,000. Therefore the plaintiff's earning capacity was reduced by 75%. I believe that is the amount that the plaintiff is entitled to under s10(1A) between the grant of his pension on 21 December 2012 and 22 December 2015 when he gave up the job with Spectrum.

Orders

38. I have inquired of the counsel of the plaintiff and the solicitor for defendant if any further reasons for judgment are required. I am told that none is so required. For those reasons, I set aside the decision the defendant made on 29 January 2015. I determine that the plaintiff's superannuation allowance be increased to 81.94% from 21 December 2012 to 22 December 2015 and to 85% from 23 December 2015 to date and continuing. I order the defendant to pay the plaintiff's costs.

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Decision last updated: 07 November 2016