Porto v SAS Trustee Corporation
[2014] NSWDC 15
•21 March 2014
District Court
New South Wales
Medium Neutral Citation: Porto v SAS Trustee Corporation [2014] NSWDC 15 Hearing dates: 23-25, 30 October 2013; 4-6 February 2014 Decision date: 21 March 2014 Before: Neilson J Decision: Decisions made by SAS Trustee Corporation on 26 July 2012 confirmed.
Catchwords: POLICE SUPERANNUATION - Hurt on duty - abnormal risk benefit - assessment of risks - allowance commensurate with risks - whether plaintiff "required to be exposed" to risk - backdating of benefit Legislation Cited: Police Regulation (Superannuation) Act 1906
Police Regulation (Superannuation and Appeals) Amendment Act 1979Cases Cited: Bennie v SAS Trustee Corporation (Geraghty J, NSWCC No 6036/96/1)
Byrne v SAS Trustee Corporation (unreported, District Court, NSW, Truss DCJ, No RJ 416 of 2007, 16 May 2008)
Conway v SAS Trustee Corporation [2012] NSWDC 249
Grech v Commissioner of Police (2004) 1 DDCR 242
Hoffman v SAS Trustee Corporation (Ashord DCJ, 15 May 2013, RJ512/12)
Lembcke v SAS Trustee Corporation (2003) 25 NSWCCR 464
Murphy v SAS Trustee Corporation (Ashford DCJ, 15 May 2013, RJ516/12)
Pinkerton v SAS Trustee Corporation (Truss DCJ, 10 August 2007, RJ319/06)
SAS Trustee Corporation v Cox [2011] NSWCA 408
Swift v SAS Trustee Corporation [2010] NSWCA 182
Tanks v SAS Trustee Corporation (Neilson DCJ 1 September 2004, RJ894/03)
Thoms v SAS Trustee Corporation (Geraghty J, NSWCC No 7721/98)
Wheatley v SAS Trustee Corporation (Robison DCJ, 3 August 2011, RJ424/10)Category: Principal judgment Parties: Robert David Porto
SAS Trustee CorporationRepresentation: R J Perrignon (Plaintiff)
T M Ower (Defendant)
Baker and Edmunds (Plaintiff)
R S Blume (Defendant)
File Number(s): RJ613/12 Publication restriction: No
Judgment
INTRODUCTION
The plaintiff, Mr Robert Porto, is a former constable first class of police. He was attested as a probationary constable of police on 27 March 1987 and thereupon became a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906 ("the Act"). On 31 March 1995 the plaintiff submitted his resignation. That resignation took effect on 28 April 1995. The plaintiff withdrew from the Police Superannuation Fund his contributions to that Fund, and applied for, and received, pro rata long service leave. He made no application at that time for a medical discharge.
He made such an application on 5 August 2008, that application being received by the defendant on 7 August 2008. On 24 September 2009 the Police Superannuation Advisory Committee ("PSAC") established under the Act, acting as delegate for the defendant, determined that at the time that the plaintiff's resignation came into effect he had been incapacitated for the duties of his office on account of an injury to his left knee and post-traumatic stress disorder with depressive features ("PTSD"). On 8 October 2009 the Commissioner of Police determined that the suffering by the plaintiff of the infirmity in his left knee was caused by the plaintiff's having been hurt on duty. However, the Commissioner of Police rejected the allegation that the plaintiff's PTSD was caused by his having been hurt on duty. As a matter of law the determination by the Commissioner of Police on 8 October 2009 concerning the plaintiff's left knee entitled him to a hurt on duty pension ("HOD pension") under the Act.
By letter dated 14 December 2009 the defendant attempted to advise the plaintiff of his rights and commenced paying the plaintiff's pension to him. I say that the defendant attempted to explain to the plaintiff his rights as the plaintiff says that he did not receive the letter of 14 December 2009, an issue to which I shall in due course return. The plaintiff did not, shortly after 8 October 2009, apply for any increase in his pension entitlement.
On 25 February 2010 the plaintiff commenced proceedings in this Court against the Commissioner of Police seeking to have the condition of PTSD certified to have been caused by the plaintiff's having been hurt on duty when he was a serving member of the Police Force. At a callover on 8 November 2010 I was told and I noted that the plaintiff's claim against the Commissioner of Police had been settled. On 15 November 2010 a consent order was made by this Court. That consent order contained an erroneous date. It provided as the "deemed date" for the occurrence of the plaintiff's PTSD 30 April 1995, when it ought to have been 28 April 1995. That was later corrected by a consent order filed in the earlier proceedings. However, it can be seen that as at 15 November 2010 the plaintiff had both his knee injury and PTSD classified as hurt on duty.
On 20 April 2011 the plaintiff signed an application for an increase in his HOD pension. However, that was not received by the defendant until 14 December 2011, nearly eight months later. That delay is completely unexplained. On 26 November 2012 the plaintiff commenced these proceedings alleging that he was aggrieved by the determination of the defendant to increase his HOD pension to 90% of the attributed salary of his office. The relief claimed in these proceedings is an increase of the plaintiff's HOD pension to 100% of the attributed salary of office
There are a number of irrefragable facts which bind me. The first set of irrefragable facts is that at the time that he resigned the plaintiff was incapable of exercising the functions of a police officer. The second set of irrefragable facts are that the two conditions, the condition of the plaintiff's left knee and his PTSD, were caused by his having been hurt on duty when he was a member of the police force. The next irrefragable fact is that the plaintiff was, at least from the time of the decision of the defendant, namely 26 July 2012, totally incapacitated for work outside the police force. The issue for my determination is the amount that ought be paid to the plaintiff pursuant to s 10(1A)(c) of the Act. The relevant part of the paragraph is this:
"if the disabled member is totally incapacitated for work outside the police force and, in the opinion of STC, the member was hurt on duty because the member 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, an additional amount that is:
(i) not less than 12.25 per cent and not more than 27.25 per cent of the member's attributed salary of office, and
(ii) commensurate, in the opinion of STC, with the risks to which the member was so required to be exposed, ..."
The basic HOD pension is 72.75%. A finding of total incapacity increases that pension to 85%. Accordingly, the abnormal risk benefit is any amount between 0.1% and 15% of the attributed salary of office. The current defendant determined to award the plaintiff one-third of the amount available under par (c).
THE PLAINTIFF'S ALLEGATIONS:
In the statement of claim as originally filed the plaintiff relied upon three events. The first event occurred on 8 June 1987 at a bottle shop at a hotel in Strathfield. The second event is alleged to have occurred in or around November or December 1987 and occurred at the Redfern Police Barracks when the plaintiff was undergoing a course to qualify to be attested as a constable of police. The course was between 16 November 1987 and 11 December 1987 and, if the plaintiff's recollection as to the timing of the event be correct, the event occurred on 8 December 1987. The third event originally pleaded occurred on 1 October 1992 when the plaintiff was giving chase at Villawood to offenders who had conducted an armed hold-up at the Villawood Bus Depot when the plaintiff was climbing over a fence and fell awkwardly injuring his left knee.
On the first day of hearing, 23 October 2013, I granted leave to the plaintiff to add three further events. The dates of two of those events needed to be further amended. After those further amendments the three further events are one occurring on 25 June 1988 when the plaintiff attended a house in Auburn and observed the body of a deceased person who had suicided by stabbing himself in the bath. The plaintiff found it necessary to use a coat hanger as a hook to remove the plug from the bath to allow the bloody water to drain from the bath. The next event occurred on 6 January 1989 when the plaintiff was involved in the pursuit and arrest of persons who had attempted an armed robbery at the ANZ Bank at Bankstown. The third additional event alleged was on 24 June 1991 when the plaintiff was involved in the arrest of some offenders at Merrylands. During the course of submissions the plaintiff sought leave to add a further event which occurred on 24 October 1994 on the M4. However, for reasons which I gave at that time, leave to make that amendment was refused. Those reasons have been transcribed.
As in many cases of this nature I am largely in the hands of the plaintiff in ascertaining the extent to which he was exposed to abnormal risks. In the present case, unlike many others, there has been a serious and concerted challenge to the plaintiff's credibility and reliability. That challenge has been, in many respects, successful. In giving these reasons I shall outline various conflicts of evidence and point to what are many implausibilities in the plaintiff's evidence and contradictions with other evidence and in particular, contradiction with contemporary written records.
THE PLAINTIFF'S BACKGROUND
The plaintiff was born on 17 December 1964. He attended primary and secondary schools in the Seven Hills area. He completed the Higher School Certificate in 1982. It had always been his ambition to join the police force. However, the plaintiff is of short stature and at the time he completed the Higher School Certificate he was ineligible to join because he did not reach the minimum height required by the then policy of the NSW Police. The plaintiff initially did various jobs in sales with the Pacific Pump company and then joined McDonald's at Merrylands where he became a trainee manager. The plaintiff worked for a number of years at McDonald's. While the plaintiff was so working the height requirement for NSW Police was removed and the plaintiff applied to join the police force.
He went to Goulburn Academy where he trained for three months and was attested as a probationary constable of police on 27 March 1987. That class was numbered 225 and the group within the class to which the plaintiff belonged was known as E. All told about 200 persons started at the Goulburn Academy with the plaintiff but a lesser number, but not much less, was eventually attested on 27 March 1987. After attestation the plaintiff was stationed at Flemington, near the markets.
The Strathfield Bottleshop Incident: 8 June1987
The first event occurred on 8 June 1987. The plaintiff was working at that time with then Senior Constable Alan Leonard Robinson who, after 30 years in the NSW Police, retired in March 2005. Mr Robinson gave evidence in the plaintiff's case. I have no hesitation whatsoever in accepting Mr Robinson's evidence. He was stationed at Flemington between 1980 and 1995. He was unable to recall the time when the event in question occurred but he clearly had a good recollection of it. He and the plaintiff had been sent to the Strathfield CBD in order to obtain meals for prisoners held at the Flemington Police Station. At the commencement of his evidence, Mr Robinson suggested that the event occurred as he and the plaintiff were travelling to collect the prisoners' meals but at the end of his evidence he believed that they had already collected the meals which had gone cold in the back of the police vehicle that they were driving after the event now in question. The plaintiff's recollection is that they had already collected the prisoners' meals before the event occurred. Little turns on that but the probabilities are that the meals had already been collected.
According to Mr Robinson, he and the plaintiff were travelling on the Boulevard near Strathfield railway station and the Evendon Hotel. He noticed a number of men on the footpath hailing the police. The vehicle was being driven by the plaintiff. The men on the footpath were calling out that there had been a stabbing in the hotel. The plaintiff pulled their vehicle to a halt near the Evendon Hotel. This hotel is on the north side of the Strathfield railway station. On the eastern side of that hotel is a bottle shop. When Mr Robinson and the plaintiff arrived outside the hotel there were a number of people talking at once. He was able to ascertain that a person had been stabbed in the hotel and the offender had left the hotel and gone into the bottle shop. The plaintiff got out of the vehicle with his baton, attaching it to his appointments belt, and was "virtually running towards the bottle-oh" when Mr Robinson found it necessary to call him back a little. According to Mr Robinson he said words to the effect of, "Hang on, wait for me." It is to be recalled that at this time the plaintiff had less than three months actual experience as a working police officer. Senior Constable Robinson then called for backup over the police radio network. He advised that a person had been stabbed and that further police were required as well as an ambulance.
His evidence continued thus:
"A. At that stage when I was satisfied that there was a stabbing I put my baton in my police belt, I withdrew my police revolver from my holster, as did Constable Porto, and went to the bottle shop ... [which is] a drive through bottle shop so its entrance at both sides: entrance and exit. As we got to the bottle shop Constable Porto was just a little bit in front of me. We saw the offender."
He recognised the offender both from the description that had been given to him by members of the public and from the blood that was on him and from the knife that he held in his hand. Senior Constable Robinson described the offender as male, slightly built, between 25 and 30 years of age, wearing a flannelette shirt that was open and a pair of denim jeans. He also described him as having blood on his arms and on his shirt. He believed that the offender was holding the knife in his right hand. He described the knife as having a blade which was 20 centimetres long with a wooden brownish handle that could be described as a filleting knife. His evidence continued:
"A. I said to him, to the offender, 'There has been a stabbing. You have got a knife in your hand. What is going on?'
Q. Before you said that, was there any exchange between you or Mr Porto and the offender?
A. Mr Porto just said, 'Stop, police' and that is when he turned around and sort of faced us. He was standing against the stanchion, which holds the roof up obviously, and to his back were cartons of either beer or a wine. I am not sure what ...
Q. When you said to him there's been a stabbing and the other words of which you have given evidence, what were you doing with your hands?
A. I had my - I am left-handed so my service revolver is in my left hand and I was in what they call a Weaver stance and I was pointing my revolver directly at the centre of mass, which is the centre of his chest.
Q. What then happened?
A. He said - I can repeat it. He said, 'I am not fucking scared. I'm not fucking scared of you and I'm not fucking scared of your guns.' ... I attempted to engage him in conversation, which I did, with the thought of just getting the knife off of him. He said to me, 'I'll give you the knife if you get - bring my girlfriend over here.' He obviously had some problems.
Q. Did you respond?
A. I said, 'We both know there's no way that's going to happen. Give me the knife. When we get back to the police station I will talk to your girlfriend and if she wants to come over I will try to make some arrangements.'
Q. What was Mr Porto doing at this stage, if you know?
A. Well, what - a situation of that type, which is critical, they have what they call a triangle of safety which means that you can be no closer than 3 metres, preferably a little bit more, away from the offender; one to the left or in front and one approximately 2 to 3 metres to the right or left, whichever the situation may be. So you have a triangle, so that if the offender does get one of you he won't get both and that is where Robert was, he was off to my right by about 2 or 3 metres and probably just to the side of me because whilst I was looking at the offender I could still see Robert in my periphery."
Senior Constable Robinson then said that the plaintiff was to his right and also had his pistol drawn pointed at the offender. He then said that, "a few seconds later two more police arrived and entered the bottle-oh." They were also young men who had their pistols drawn. They also approached the plaintiff and Senior Constable Robinson. They did not go within 3 or 4 metres of the offender. They stayed a little further back with their pistols drawn. Those two police were from Burwood. Burwood is the police station that is closest to the Evendon Hotel and that hotel is physically within the boundaries of the Burwood patrol rather than the boundaries of the Flemington patrol. Mr Robinson then said that the offender became quite agitated and was lunging at the police with a type of stabbing motion.
He then heard the click of the firing pin of the plaintiff's service pistol being drawn back. At the time the service pistol was a Smith & Wesson .38 calibre pistol containing six rounds. It was a double action weapon. When the Senior Constable heard that click he knew that the plaintiff only needed to apply 2 pounds of pressure to the trigger in order for the pistol to discharge. When he heard that he thought to himself, "oops". That indicated to him that he thought the plaintiff was quite prepared to discharge his weapon at that time. The Senior Constable then made an attempt to have the plaintiff calm himself somewhat by making a patting gesture to indicate not to do anything or to remain calm.
He described the offender as being very erratic, as being angry and emotional. The Senior Constable thought that the offender was trying to work up the gumption in order to get the police to shoot him. The terminology used by Senior Constable Robinson was vernacular: "I thought he was trying to get the balls to go me so that [I would] shoot him." The offender was expostulating that he and his girlfriend had split up and as a result of that he had lost contact with his child and that life was not worth living anymore and similar sorts of things that the emotionally upset often complain about. The Senior Constable looked the offender directly in the eye and said, "before you can get to me I will shoot you."
The evidence continued thus:
"Q. Why did you give him that warning?
A. Because I thought - you see, the thing is an offender who is 3 or 4 metres away with a knife can get to you in under a second.
Q. What made you think he was even contemplating it?
A. As I say, at times his demeanour - you just know. In the police when you've been in it for a long time, you get to know people's emotions and you know who will and who won't.
Q. What was he doing with the knife while you were watching him?
A. He was just - he had it in his right hand. I'm left-handed, so he had it in his right hand, I believe, and he was just thrusting it, clean at us. So he was sort of two and a half metres away and extended the point of the knife.
Q. Did he respond to [your] saying, 'I'll shoot you before you get close to me'?
A. He just said, 'I'm not scared of you blokes,' and with that, he just turned his wrist over and lifted his arm, turned his wrist and just drew the knife straight across and there was blood."
It is common ground that the offender lacerated his left forearm with the knife. As to the effect of this laceration, Senior Constable Robinson said this:
"A. The moment he cut himself the blood was just running profusely, like a tap. There was no, you know, pumping a yard in the air like you would imagine with arterial blood but the blood was just running out, like pouring a jug. It was just pouring out."
The Senior Constable was then asked what was his reaction to this act of selfmutilation and he said this:
"A. Before I reacted, the TRG which is the Tactical Response Group, they're the guys who were in black, turned up with a negotiator and the negotiator started talking to the fellow, the offender, and the TRG sergeant directed me out of the semicircle. They formed a semicircle around Bob and I and the offender. I moved. I re-holstered my appointments. I walked backwards between the ... TRG fellows and ... I was thinking, 'How can that guy still be on his feet?' because he had lost so much blood. I thought he would have gone down but he never did."
Senior Constable Robinson said that when the TRG arrived they directed him in a very loud voice to, 'get out of here' and he backed off between two of them. He said that the plaintiff did exactly the same thing. The evidence continued thus:
"Q. Did you observe what the negotiator then did?
A. The negotiator tried to talk him down for a couple of minutes and he just said, 'This ain't working'. I remember that precisely, he got a can of OC spray from inside his pocket, reached across the bonnet of the car because he drove his car in - sorry - alongside where the TRG were and directly to the side of the offender. He reached across and sprayed him. He must have sprayed half the can to his face and then the TRG just jumped on him and disarmed him.
Q. Whilst the negotiator was talking to him, was the wound continuing to bleed?
A. It didn't stop, not for one second, not from what I could see.
Q. What happened when all of this was over?
A. When this was over the ambulance came in and attended to the offender. We were asked questions because clearly at this stage it had become a critical incident, very traumatic and we had a number of police turn up. The boss, superintendents, detectives who eventually took the matter over and they just asked us what happened virtually. We gave them some hand written statements, and I don't know, a couple of hours later, I suppose, it would have been an hour, we went back to the station with the cold prisoners' meals and I was talking to Constable Porto about how he was feeling. You know, I was a bit worried about when he put it on double-action and he was a bit nervous maybe. He wasn't quite, you know, threatened or anything like that. He was just a bit overcome by the situation I think because he was very new in the job and it was a very bad situation for someone so young to find themselves involved with so early."
The Senior Constable went on to say that as far as he could recollect there was an "unofficial debriefing" at the end of the shift at a local hotel although he could not recall precisely if the plaintiff attended the hotel with him, but there was no evidence from the plaintiff that he did so.
In his evidence in cross-examination Senior Constable Robinson was quite sure that the offender did not run towards the plaintiff and himself. He agreed that as he was talking with the offender that the offender was waving the knife mainly at Senior Constable Robinson but he did turn to the side and wave it at times at the plaintiff. He said that the two officers from Burwood turned up probably four or five minutes after the commencement of his confrontation with the offender and that from that time onwards he was very confident that the situation was under control. He was unsure as to whether the plaintiff might have been able to see these new arrivals because of the angle at which he was standing to Senior Constable Robinson. When asked whether the plaintiff got any blood on him, Senior Constable Robinson said that he could not say that he noticed any blood on him but he was certain that the plaintiff did not complain of there being blood on him and that he did not notice any blood in the plaintiff's hair. Senior Constable Robinson told the plaintiff on the way back to the police station that he had done his job correctly. The plaintiff did not complain to the Senior Constable about this event on any day after it occurred. Shortly after this event the Senior Constable was assigned to the detectives and did not work with the plaintiff on many other occasions thereafter. He estimated that the confrontation between the offender and the plaintiff and himself lasted 20 minutes. That evidence can be found in the transcript of 30 October 2013 at pp 20 and 21 and that is consistent with the plaintiff's estimate, although he thought it may have been, "At least 20 minutes."
I turn now to the plaintiff's evidence about this incident. The plaintiff said that he stopped the police vehicle quickly, grabbed his baton, did not wait for his partner and ran towards "the trouble". He gave no evidence-in-chief of his partner, Senior Constable Robinson, calling him back and calling for him to wait. He then said this:
"When I approached the bottle shop area and turned the corner, I noticed the bottle shop, I noticed lots of people that looked agitated moving around inside the bottle shop, and immediately a gentleman 23 years of age to 30 years of age ran out of the bottle shop directly towards me brandishing a knife. He seemed to have a blue and white shirt, chequered shirt on, some jeans and had a 20 centimetre serrated knife in his right hand, and the right hand was also covered in blood from the elbow down. The shirt was open and he started running at me with the knife."
That evidence of the offender's running towards the plaintiff I do not accept. Later in his evidence-in-chief the plaintiff said that the offender ran towards him from 7 metres away until he got to a point where the plaintiff realised that he was in danger and he put his baton away and drew his firearm. In order to keep a distance between him and the offender he needed to move backwards because the offender was running at him, "full tilt".
He then gave evidence-in-chief about the offender's mutilating himself and saw "spurting blood". The picture that the plaintiff wanted to paint was of blood spurting from the offender's forearm under pressure; that is, arterial blood. He then went on to say that the offender starting flicking the knife at him and that he was sufficiently close for the offender to spray blood on the plaintiff. He said he had his revolver pointed at the offender's head. He said this of his intention:
"My intention was to protect myself and stop him from advancing and stabbing me. We had been trained many times that an offender can run 7 metres before you can react and remove a revolver, and stop that person from stabbing you, and we were well short of that distance at 3 metres and I realised that if he decided to run at me and stab, I had one shot only and it was a head shot to stop him with one shot and kill him dead to protect my own life."
He then said that Senior Constable Robinson approached the plaintiff and the offender from behind the plaintiff and formed the triangle. He said that Senior Constable Robinson had not drawn his firearm. His firearm was still in its holster and "Senior Constable Robinson's life was in my hands at that stage, I believe." That is completely inconsistent with the evidence of Senior Constable Robinson.
The plaintiff went on to say that the offender lunged at him "many times over the next 20 minutes". However, he did concede that he was mainly lunging at Senior Constable Robinson who was talking with him. The plaintiff went on to give this evidence:
"Q. How did you find keeping yourself in the second-click position for that length of time?
A. My stomach was cramped. I had difficulty breathing. I had difficulty keeping the gun on target. I had difficulty staying upright. I kept trying to move my position so there would be no collateral damage if I missed. It was a public area so I tried to keep something hard behind him like a brick wall so other people wouldn't be injured and we kept moving in a position so that if I had to fire there was no chance of me missing, (1), and (2) no chance of any collateral damage obviously from the public.
Q. During this 20 minutes how did you feel about the possibility that you may have to shoot this man through the head?
A. I certainly didn't enjoy the fact. I was frightened that I might have to do that. I was thinking - 20 minutes is a long time to be in that position and I imagined what it would be like to shoot somebody in the face from that distance. It was quite frightening, and at the time in my service I was so junior I didn't know whether I was justified to shoot or not to shoot, or to shoot or not to shoot, or when to shoot or whether I should be shooting. There was a great conflict going on inside me and I wasn't sure whether I should have shot him in those circumstances or continued to be patient and keep watching.
Q. After 20 minutes what happened?
A. After 20 minutes I was pushed aside. Somebody grabbed my arm and pulled me off to one side and I realised that the tactical response group had arrived. I was pulled out of the scene and then six police with chain mail gear and gloves and helmets and shields surrounded him from all angles. He was in the centre of the group.
Q. What did you do with your weapon?
A. With my weapon? I re-holstered my weapon. I couldn't stand. I was having trouble breathing. I walked away and sat down on the kerb. I had my hands on my head and I was just trying to get myself together to just breathe, and cramping was incredible, nothing I've felt before.
Q. Why didn't you continue to stand?
A. I was unable to, sir.
Q. How long was it before you were able to stand?
A. It was 15 or 20 minutes before I could get up."
Shortly thereafter the plaintiff said that he did not believe what was happening but being a young policeman he watched and observed the aftermath because he wanted to learn what happened in a situation such as the one in which he was then involved.
His evidence about the confrontation between the offender and the police negotiator is a little more detailed than that given by Senior Constable Robinson as it includes the negotiator offering a cigarette to the offender and bringing out his OC spray can by pretending it was to be another cigarette to be offered to the offender. However, the plaintiff went on to say that the offender passed out and that the offender "stopped breathing" and that it was "quite horrific" and that the offender was taken away in the ambulance with the paramedics "working on him to revive him." There are no such statements from Senior Constable Robinson. It appears to me that the plaintiff has exaggerated the aftermath.
The plaintiff said that he went home at the end of the shift at 11pm "covered in blood". He said that he had blood sprays through his hair and on the side of his neck. It was also on his shirt which he removed as soon as he got home and washed. He said that after that event he felt a lot of stomach cramping and that it was very difficult to sleep. Indeed, he said that he did not sleep for several days and weeks and he had nightmares and cramping for a number of nights.
At p 21 of the transcript of 23 October 2013 the plaintiff, in a lengthy answer, said that he was doing what he could to save his Senior Constable's life and agreed with the proposition that the Senior Constable appeared to have the position under control, in that he had not drawn his firearm and was talking calmly to the offender and the offender appeared to be responding to the Senior Constable. In other words, the plaintiff wanted me to believe that at no time did Senior Constable Robinson draw his weapon which is completely inconsistent with the evidence of Senior Constable Robinson.
The plaintiff was asked in-chief whether he had any time off work after this incident and he was unsure but he appeared to accept that it would have depended on the roster. Eventually the plaintiff was to admit that he did not lose any time from work as a result of this incident. He acceded in-chief to the fact that his colleagues were very supportive and that the Senior Constable thanked him for looking after him and that the Senior Constable had faith in the plaintiff and that the plaintiff had "a reputation as a reliable, level-headed and sensible police officer". The plaintiff's evidence is full of such encomia of his own abilities and performances. In answer to questions put by me the plaintiff said that he did not make any complaint to anybody at the Flemington Police Station of feeling unwell on that night and he did not complain to anybody about having cramps in his stomach.
In cross-examination by Mr Ower the plaintiff said that Senior Constable Robinson did not come up to his side and form the triangle within a matter of seconds. The plaintiff thought it may have been "approaching a minute". He then agreed, reluctantly, with the proposition that the Senior Constable took over:
"Q. He has taken over the situation, has he?
A. He got involved, yes.
Q. He engaged the offender in conversation?
A. Yes.
Q. While he was doing that, he was pointing his revolver at the offender?
A. No, he wasn't.
Q. His revolver was holstered. Is that right?
A. Yes, it was.
Q. Is it the case that he waved to you in a motion indicating that you should calm down and put your weapon at ease?
A. I never looked at him. I never took my eyes off the offender ..."
The plaintiff then said that the offender mutilated his left forearm before Senior Constable Robinson came into the triangle. He said that it was only after the mutilation that Senior Constable Robinson came to the scene. That, again, is completely inconsistent with the evidence of Senior Constable Robinson.
At p 80 of the transcript of 24 October 2013 the plaintiff said that the offender lunged at him five times but at p 84 he said it was perhaps four times. In an answer given on p 81 the plaintiff asserted, unresponsively, that his job was to protect Senior Constable Robinson because he was not armed because he had not drawn his firearm. That, again, is evidence that I cannot accept. At p 82 of the transcript the plaintiff said that when TRG turned up he was grabbed by the arm which startled him. He said he had no warning of their coming up and he initially thought the member of the TRG who grabbed him and pulled him to one side may have been another offender. That appears, with the utmost respect to the plaintiff, to be a gross exaggeration. At p 85 of the transcript the plaintiff likened the action of the offender at flicking him with blood from his knife as if he were a priest distributing holy water in the ceremony known as Asperges.
At p 87 the plaintiff conceded that he did not have any sick time off work because of this accident. It did not stop him working. He did not go to have a blood test and he did not go to see any doctor. Stressing the point that the plaintiff did not take any time off work, Mr Ower put a similar question to which the plaintiff answered: "I am dedicated, my friend. I love the job."
The plaintiff was then challenged about the fact that he did not give any history of this incident to Associate Professor Nicholas Glozier who provided a report to the defendant on 6 February 2012, a question that the plaintiff did not answer directly. At p 90 the plaintiff said that the closest police station to the scene of this incident was Flemington which is patently untrue if one merely looks at the street directory, and of course, inconsistent with the evidence of Senior Constable Robinson. The plaintiff even alleged that Flemington Police were responsible for the Boulevard and the Strathfield station area which, again, is inconsistent with the evidence of Senior Constable Robinson.
The Redfern Police Barracks Incident: December 1987
The next event relied upon by the plaintiff is the incident at the Redfern Police Barracks at Bourke Street, Redfern which occurred on perhaps 8 December 1987. There is no documentary evidence concerning this event. It appears that nothing was ever put in writing about it.
Each day of the four weeks of the training course was divided into a number of classes. The training started at 8am each day. The plaintiff believed that the incident in question happened on the last Tuesday of the four-week period. I know from the evidence of Detective Inspector Nash that the course commenced on 16 November 1987 and concluded on 11 December 1987 so the last Tuesday of the four-week period was in fact 8 December 1987. The plaintiff gave this evidence as to what happened:
"A. ... Basically, days before we had a roster for that Tuesday and we were asked to prepare for two lessons in the morning starting at 8am where we were doing a weapons retention class. We were informed that we should arrive to wear certain clothing, which is to take our police uniform off, go to a T-shirt, pair of shorts, keep our police appointments on, all the webbing and handcuffs that we usually do, but the firearm as well, but remove the rounds from the firearm so we could then all, in a similar dress, we could move up to the oval and spend the next two and a half hours doing a weapons retention class.
Basically, it was a wrestling situation and an educational situation where we were shown video of prisoners practising running up to other prisoners and trying to disarm them with a fake firearm, and we were shown that criminals practised this in gaol, and that was the reason why we were doing these classes, so if we had an offender run to us, we knew that - we could understand the severity of what would happen if that firearm was removed from our possession.
Q. At what time did you first attend the academy that morning?
A. At 7.30, but 7.40 I started to dress down. We went into the locker area, which is a large room containing probably 30, 40 lockers, no windows and my locker was adjacent to the other entry into the locker complex, and Sean Preece's was directly next to me on the left. At that stage, I opened my locker. We changed out of our street clothes or our police uniform, and had my shirts, T-shirt on, I had my appointments on and I had my firearm open. The way we had been taught, the firearm opens, we put two fingers around the barrel and then we hit the ejection rod, which is a rod that removes all six rounds at once, that is the accepted way to unload the gun, to push that rod and then the six rounds then are removed and we are all expected to remove all our rounds and be available for the weapons retention class at 8am with unloaded firearms."
"Q. Was it a practice for anyone to ask you about your gun at the weapons retention program?
A. There was a - yes. When the weapon was actually - when we approached the oval and we all went there with our weapons we were stood in a straight line and asked to produce our weapons, open them and show them, and just hold them out in front of them, and show the instructor, who would inspect each weapon one at a time, and if that weapon was clear of rounds he would tap you on the shoulder, say, 'clear' in a loud voice and then you are allowed to re-holster the weapon. After which point everyone that was physically checked and re-holstered, then we could commence the class. It was a way of making sure that everyone was unloaded."
The plaintiff then said that on the morning of this Tuesday he was having a conversation with Sean Preece, who had the locker next to his, as to whether the weather was clear enough to go out on the oval and do the lesson. The plaintiff said that it had been raining on and off during that morning. The evidence continued thus:
"A. So I turned around and said, 'Is it clear? Do you think we will be out there today?' The next thing I felt was - I was actually looking this way towards Sean Preece, which was on my left, his locker door was open as well and he was doing the same thing I was, undressing, I suspect, and as I turned I felt something snatch out of my hand, which was my firearm, I felt pain to my right hand and then I looked towards him because he pulled quite hard to pull it out of my hand, my body spun to the left a little bit towards him and I saw this arm move and I heard the firearm click and I recognised that click as the firearm clicking when the barrel is closed, and then the next - instantaneously I felt a very hard, like, the end of a broom, if you like, being pushed into my stomach hard and it caused me pain.
Q. Was it a broom?
A. It wasn't a broom, sir.
Q. What was it?
A. I assumed immediately that it was my firearm.
Q. How did you know?
A. Because I had it snatched out of my hand and then I heard that click because that click is, I know that click, and it's my firearm that makes that sound. It's a very distinctive sound, and within half a second of that occurring I felt intense pressure being pushed into the left-hand side of my lower body, in between my hip bone and my belly-button. It pushed in hard.
Q. What then happened?
A. I thought I was going to die, instantly I knew what was happening, I didn't know why it was happening, but immediately assumed that something horrible was happening and I tried to swivel away and push my hands down. I saw his hands holding it ...
Q. Holding what?
A. Holding my firearm into my stomach and I put both my hands down to deflect and I sort of turned away but my head went down to take the impact because I thought I was going to be shot and the firearm discharged. I heard a loud bang and it was very loud in that building, in that room, and my ears were ringing, and they still ring to this day as a result of that. The firearm discharged within 30 centimetres of my ear. At that stage, I started pulling my clothes up and feeling around my body with my fingers, and thought I had been shot but couldn't feel it yet, couldn't feel the pain and I was - I stripped my clothes and tore my T-shirt off feeling for a hole and looking at the ground underneath me for blood, and after some seconds of anguish I started - I commenced an absolute hysterical, maniacal laugh which I have never done since, just thinking I was thankful that I was alive and avoided something which to me, was certain death at that range.
Q. Where did the bullet discharge to?
A. The bullet actually cut through the T-shirt, a ripple in the T-shirt I was wearing. It came very close to my skin. I had a red area, I guess, from the discharge or the flame that would come out of the end of the barrel. There was a hole punched through the front of my metal locker. The bullet penetrated six layers of Antron jacket and went through outer sleeves, inner sleeve jacket, and then punched a big hole in the back of the locker as well.
Q. Where did the bullet then exit to?
A. The bullet had exited through the back of the locker, punched a hole, and then with the assistance of two other associates or police that were also getting unchanged in the locker room, we pulled out my locker - and it's quite difficult to do, but we found an indentation in the concrete where the bullet directly behind the locker that I was standing at corresponded - the hole corresponded with the hole and the damage in the concrete."
The plaintiff went on to say that they found the slug of the bullet broken into several pieces behind his locker on the floor.
The plaintiff then described Mr Preece as being frozen like a mannequin, that he was white and was "immovable". He went on to give this evidence about Mr Preece:
"A. He froze, I looked around and all the other police in there were holding their ears because of the sound that it made in that enclosed room, then within 15 seconds two uniformed dark blue fatigued police that usually have - that have breakfast next door to that locker room, the TRG, that was their breakfast room. I assume that they were in that room and heard the firearm discharge. They came in hurriedly and grabbed him in incredible style. One grabbed him around the shoulder on one side and was almost like arresting an offender, they grabbed his arms, pulled them back and he was removed from that room physically and very forcefully and quickly away from that room. He was unable to move, there was no - well, he didn't move at all. I am saying that he was unable to move, he still appeared in that frozen state. In fact, I watched his feet and he was being dragged out of the room and the toes of his boots were dragging on the ground."
The plaintiff was unable to identify either of the officers from the TRG. The plaintiff said that Mr Preece was removed from the class. The plaintiff himself thought that he would be removed from the class at some stage to be questioned but that never occurred.
At the weapons retention course there were some gibes from other people saying things such as, "you'd better check Porto's gun twice" and after saying such things they would laugh but the plaintiff went on to say that the members of the class were complaining about ringing in their ears. One will note from what I have earlier quoted the plaintiff maintains that he suffers from tinnitus to this day from this event but there is no corroboration for that at all and certainly no evidence of any impediment in the plaintiff's hearing which might account for some tinnitus.
The plaintiff said that he did not report the incident himself. He did not want to put himself in a position where he could be blamed for its occurring. The plaintiff went on to say that at about 11.30am or noon he and others saw Probationary Constable Preece going home. They saw him walk across the parade ground in full uniform, "hat, tie, the whole shebang, bag over his shoulder" and that in such fashion Probationary Constable Preece left the Redfern Police Barracks and was never seen again by the plaintiff.
In his evidence-in-chief the plaintiff said that his state of mind was this: "I couldn't believe that I was alive, and I'd never been so scared in my life." After the plaintiff had given that evidence I intervened. I pointed out to him that it appeared to me that either Mr Preece had attempted to murder the plaintiff or that this was some form of practical joke that went wrong. He agreed that the description that he gave of Mr Preece was of his being shocked and mortified. The plaintiff had agreed that the description of the event that he had given sounded like a practical joke that had gone wrong. He agreed that he did realise that because he and Mr Preece had been friends. This evidence was then given:
"Q. You were friends. A reason for not making any formal report or complaint is because you wouldn't want it - you, having survived his failed practical joke, didn't want to get your mate into hot water?
A. No, I didn't want to get myself involved. I didn't want to be looked at being what caused it because I did use the word 'clear' and I did say, 'Is it clear outside?' and I realised that may have been a contributing factor to him believing that I was using that words and skylarking, but that wasn't my intention. I didn't want to get into trouble and be discharged from the Police Service for something that was misinterpreted by somebody else, I guess."
Later this evidence was given:
"Q. You see, what concerns me is this. You are complaining to me now about systems not having - no investigation, swept under the carpet, in effect, but if you yourself wanted to sweep it under the carpet so that there was no adverse repercussions for either Preece, your friend, and yourself, then other police might be in exactly the same position and want to sweep it under the carpet, pretend nothing happened and it's all gone away and no-one gets into trouble. Right? Do you understand that?
A. Yes."
At the commencement of cross-examination the plaintiff said that his recollection of this event was "crystal-clear in my mind". He went on to say this: "It was the event that nearly took my life. I will never forget it." He went on to say that he regarded himself as a "dead man walking" ever since the occurrence of this incident. Exhibit 7 is a communication sent by the plaintiff to the defendant on 20 August 2012. After signing and dating the document the plaintiff described himself as "The walking dead man".
At the re-commencement of cross-examination on the third day of hearing, 25 October 2013, the plaintiff would only concede that this incident "may have been an accident". Later he admitted that he did not take any time off work as a result of this incident, that it did not interfere with his ability to continue to work and that it did not require him to go to see a doctor.
The plaintiff was then taken to the history of this incident that he had given to Dr Peter Klug, whom the plaintiff saw on two occasions. The first occasion was 4 March 2008. At p 5 of the transcript of 25 October 2013 the following evidence was given:
"Q. Dr Klug records that you say he was marched off the grounds. Now, that's not right, is it?
A. Well, he marched off the grounds diagonally by himself in full uniform approximately two hours after the incident, including his hat, bag, in full kit.
Q. He wasn't accompanied by anyone. Correct?
A. No, he wasn't, no."
It appears that the plaintiff failed to consider the difference from marching off the grounds and being marched off the grounds. A little later this evidence was given:
"Q. ... Dr Klug also records that you were preoccupied with the fact that a sergeant subsequently put in a falsified report about the Preece incident.
Q. What sergeant?
A. There is no sergeant. To my knowledge, sir, there is no report, and never has been a report in relation to the incident.
Q. Did you tell Dr Klug anything like that?
A. I would not have told Dr Klug that. The only report that I know is perhaps the report that I gave to Mr Edmunds when we commenced proceedings."
However, it is clear that the plaintiff did give Dr Klug the history about which he was cross-examined. It was then suggested to the plaintiff that he was exaggerating the effect of this incident in his own mind. He denied that and said he never exaggerated. I am unable to accept the plaintiff in that regard.
The plaintiff was then cross-examined about a history that he gave to Dr Edwards. The history is this:
"He then told me two specific incidents that particularly troubled him in which he gave me detailed notes concerning one at the police academy when a fellow probationary officer, in a playful mood, pushed a shotgun towards him and it went off. He said he could have been killed, it went through him and he only sustained a burn mark to his body. He said some of the nightmares have tended to persist, like blood flowing across a floor."
Clearly a shotgun was not used, only a police service revolver. Furthermore, the plaintiff was not shot as such. A bullet may have gone close to his abdomen and left a burn or scorch mark. The plaintiff denied that he would have used words such as Mr Preece was in a playful mood or that he was mucking around or joking or skylarking. He went on to say that he did not know what Mr Preece was doing but it is clear from what he had already conceded to me when giving evidence-in-chief that he knew that it was a practical joke gone wrong.
A number of other witnesses gave evidence about this incident. The first was Mr Richard Walter Oakley who, like the plaintiff, was attested as a probationary constable of police on 27 March 1987. He was medically discharged from the police force with injuries to his back and neck in 2001. Those injuries have been accepted as being "hurt on duty". Since 2004 the witness has been employed in the Public Service in the Firearms Registry at Murwillumbah.
Mr Oakley recalled a gun shot in the locker room at the Redfern Police Barracks. He did not recall whether he was getting changed or what other reason may have taken him to the locker room. He believed Mr Porto was there. The first thing that Mr Oakley knew about the discharge of the gun was hearing the noise of the discharge. Shortly after the noise he saw the plaintiff. He said the plaintiff was quite distraught and upset and appeared to be nervous and frightened. Mr Oakley noted a hole in a locker. Mr Oakley performed an elementary police cover up. He placed a bumper sticker over the hole in the locker. His recollection of other events is somewhat vague. For example, he only believed the course was for two weeks when it was for four weeks. He recalled the name of Sean Preece but did not recollect anything of him. Mr Oakley believed that it was the plaintiff's gun that had discharged. He said this: "He was quite concerned about the incident, very worried that he would be in trouble." That is a clear reference to the plaintiff. In answer to a question I put, this evidence was given:
"Q. You might remember this. To me hearing what I have heard about this incident that you are giving evidence about, Mr Oakley, there are only two possible variations. One is an attempted murder. The other is a practical joke gone wrong. A third possibility is just an accidental discharge while someone was trying to [unload] their gun. When this occurred, what was the atmosphere? Was it shock and horror, shock and awe, or unbridled mirth?
A. Unbridled mirth."
He did not know who had caused the discharge of the firearm but from what he had heard he did not suspect that it was the plaintiff.
Evidence was also given by Detective Inspector Terry Stewart Nash who is currently the Professional Standards Manager for the Dubbo region. He was also attested as probationary constable of police on 27 March 1987. He told me of class 225 and group E and brought with him to court a contemporaneous record showing the secondary training course commencing on 16 November 1987 and concluding on 11 December 1987. Detective Inspector Nash was in group 225 E, as was Mr Preece. The first thing that alerted the then Probationary Constable Nash to the discharge of a firearm was the noise of it. He was in a stairwell about 15 to 20 metres away and he heard the shot coming from the locker room. He was going up the stairs away from the locker room. On the evidence before me, the stairs going up from the locker room lead to classrooms and not to the oval where a weapons retention course was to be held. Probationary Constable Nash did not report this incident but he said that he was not interviewed afterwards. In cross-examination he confirmed that he was going up the stairs to the lecture rooms.
The next witness to give evidence about this event was Senior Constable Sean Presgrave who is stationed at Lismore. He is also a member of class 225 E. He was in the locker room when he heard a loud bang. Those who were also in the locker room were the plaintiff, Sean Preece and Steve Pitman. When he heard the bang he looked around and ran. He saw the plaintiff and Mr Preece but he was not sure if Mr Pitman was there or not. He ran out lest there be any further discharge of the firearm. He did not know whose weapon had been discharged and he did not see where the bullet had gone. All he had a definite recollection about is that he was in uniform as were the others. He said that after the discharge of the firearm he did not go back into the locker room. He did not recall anyone laughing about this incident. Once he realised that no-one had been injured the general thought was that it was hoped that no-one would get into trouble.
The other witness to give evidence about this event is Mr Sean Preece. Like the others, he was attested as Probationary Constable of Police on 27 March 1987 and there is no doubt that he was a member of group 225 E. After being attested as Probationary Constable of Police he was stationed at Rose Bay Police Station. He told me that he completed the four week training to be a constable at the Redfern Police Barracks. In his evidence-in-chief he said that he did not handle anyone else's firearm, that he was unaware of a discharge of Mr Porto's firearm at Redfern and that he did not take and fire the plaintiff's gun. He told me that he completed the four-week training course, was attested as a constable of police and served a further nine months, that is, 18 months all told, at Rose Bay Police Station. He then was stationed at Paddington for nine months and he then went to the Maroubra Police Station for two and a half years where he was a member of the Highway Patrol. In 1992 he resigned from the Police Force and took up alternative employment. At the time of giving evidence he was the Chief Operating Officer for a finance and investment company.
In cross-examination Mr Preece told me that after completing the constables' course at Redfern that he went back to the Redfern Police Barracks while still stationed at Rose Bay to perform a course to assist the TRG. He recalled training in the use of police dogs, training in respect to gases and sprays, training for improved defence, training for "pressure points" and being put in a suit and being chased by one of the police dogs. He readily accepted that he could remember very little, if anything, of the training at the constables' course but remembered the training with the TRG because that was something that he enjoyed, which cemented it in his memory. In crossexamination he said this:
"Q. If a gun discharged in the locker room, you wouldn't recall it at the constables' course?
A. That would be a significant event and I think I would recall that."
When cross-examined about the plaintiff's allegations, Mr Preece told me that if such had occurred he would remember it. This evidence was given:
"Q. Do you remember being startled, stunned, in shock at any time in the locker room?
A. No, I don't. To the best of my recollection, sir, I went through my training without incident. I passed all of my training. I had no blemish on my record with respect to any incident occurring so something like that, if it occurred, the normal practice would have been for it to be reported and for me to be - would have went through a process of being either reprimanded or dealt with in some way, and none of that occurred.
Q. Can you recall two members, two uniformed police officers - not probationary constables; experienced seasoned policemen coming into the locker room and dragging you out?
A. Absolutely not.
Q. If that had occurred would you remember it?
A. Yes, I would have."
I formed a favourable impression of Mr Preece and do not believe that he tried to mislead me. Equally, I believe that he would have admitted what the plaintiff alleged if what the plaintiff alleged were true. However, it is clear from the evidence of Mr Oakley, Detective Inspector Nash and Mr Presgrave that there was a discharge of a firearm in the locker room at some stage and I am prepared to accept that it was the plaintiff's firearm which was discharged. The only inference to be drawn was that the discharge was clearly accidental. I am even prepared to accept that the gun was discharged by someone other than Mr Porto in what may have been a practical joke. However, at the time the evidence about this event was given, almost 25 years had passed. Memories grow dimmer and more vague with the passage of time, especially when no contemporaneous document was ever made.
The identification of Mr Preece as the discharger of his gun may be an erroneous identification. For example, I cannot accept that Mr Preece was dragged out of the locker room by two members of the TRG, was sent home early that day and did not complete the constables' course, which would have prevented him being attested as a constable of police. Mr Preece gave evidence about his subsequent career in the police force and was not challenged in that regard. The inference from what the plaintiff asked me to believe is that he did not complete the constables' course and could not, therefore, have reached the position of Constable of Police and was under some disciplinary cloud of which there is not a scintilla of evidence. For reasons which will be clearer as I give further reasons, I believe that the plaintiff has grossly exaggerated this event, both as to what happened and as to the effect of it on his psyche.
The suicide discovered on 25 June 1988
The third event that the plaintiff relies upon is the event of 25 June 1988. This concerned the suicide of Mr Ivan Berezutsky who was aged 79 at the time. An occurrence pad entry was made for this event. That became exhibit F. There was also a report to the coroner which became exhibit G. With some abbreviations and omissions of unnecessary information the following is the content of the occurrence pad report:
"At 4.30pm this day Mr Michael T of ... Auburn attended the station and informed myself and Constable Clarke of his concern for the welfare for an old workmate of his. A short time later, in company with that person, attended premises at ... Lidcombe. It was ascertained that the door was not being answered and that entry was to be made. The rear door was then forced by police and a short search of the house revealed that a male was stretched out in the rear bathroom, bath filled with both water and blood.
Contact was then made with Senior Sergeant Garrod [who] attended at 5.40pm. A short search of the house followed, and a suicide note written in Russian was located on the kitchen table ... Detective S Jones was then notified and attended at 6.50pm. Scientific was also summonsed [sic] and similarly attended at 7.20pm. ... Government contractors attended the scene at 8.20pm and conveyed the body to Westmead Mortuary and life was pronounced extinct at 9.03pm ...
The bathtub was drained and a 30 centimetre knife was located under the body. It was also noted that both arms were deeply cut on the inner side of his elbows ranging from slashes to puncture wound on the arm. It was further noted that current bank books and lottery tickets were torn and discarded into the rubbish bin, in the kitchen. According to neighbour ... he had attempted to approach the deceased at 4.20pm the previous day but the deceased told him, 'Shut the door ... I just want to go to sleep ...'
The deceased had a multitude of illnesses including [cirrhosis] of the liver, bowel cancer, asthma, varicose veins in the oesophagus and water in the abdomen. According to neighbours, his spirit had been low for a period of some two weeks where the deceased, Berezutsky, consistently refused company and just "forgot to eat". NO SUSPICIOUS CIRCUMSTANCES."
The report to the coroner was made by the plaintiff.
Such scenes are always distressing for whoever is involved. The only further detail the plaintiff gave of this event in his evidence-in-chief was the need for him to draw the plug from the bathtub for which purpose he used a wire coat hanger suitably bent into position and required the plaintiff to push the deceased's body forward so that he could get access to the plug.
This event was not the subject of any cross-examination by the defendant. However, no mention of it was made by the plaintiff to any of the medical practitioners who examined him for his psychiatric condition, namely Dr Peter Klug on 4 March 08 and also on 12 July 2011, Dr Graham Edwards who saw the plaintiff for the defendant on 2 March 2009, Dr Doran Samuell who saw the plaintiff for the Commissioner of Police on 20 July 2009 and Associate Professor Glozier who saw the plaintiff on or about 6 February 2012 for the current defendant. There are also reports before me from Dr Anna Popova who saw the plaintiff some time in late 2008 for treatment and by Ms Fiona MacCallum, a clinical psychologist whom the plaintiff first saw on 1 March 2010 but this event was never mentioned by either of them. There is no suggestion that the attendance upon the scene of this death caused the plaintiff the need to take time off work or to see a medical practitioner or to make any complaint to anybody in authority or to otherwise suggest that it had made him ill.
The attempted robbery of 6 January 1989
On 17 November 1988 the plaintiff joined the Highway Patrol at Bass Hill. The fourth incident which occurred was the plaintiff's involvement in the arrest of persons who had attempted to rob the ANZ Bank at Bankstown on 6 January 1989. The occurrence pad entry for this event is exhibit H. The offenders were named Mercer and Foley. The first part of the occurrence pad entry is this:
"About 2.35pm on 6-1-89 the above two offenders were sighted acting suspiciously in a confirmed stolen Ford Falcon ... outside the ANZ Bank ... Bankstown. At the time the offenders were sighted with a sawed-off rifle, dressed in blue overalls and with black balaclavas.
A call was made to the 000 switch by a local shopkeeper and Bankstown District vehicles responded. A short time later Constable First Class Smith and Constable Thorn of "Bankstown 1" arrived at the bank and sighted the offenders about to leave the stolen vehicle and enter the bank. The stolen vehicle, driven by Mercer, then accelerated to high speed and a Police pursuit ensued to a block of units at Dellwood Street, Bankstown where the offenders abandoned the stolen vehicle in a car park under the units. Numerous other police arrived shortly thereafter and a search of the car park was carried out.
The two offenders were sighted by Senior Constable Thompson and Constable Porto of Bass Hill Highway Patrol, hiding behind a Ford Cortina station wagon ... owned by Foley. This vehicle had been parked at the units as the second get-away vehicle. Located on the ground, also behind the vehicle, were the two pairs of blue overalls, two pairs of gloves and the keys to the stolen Falcon. The offenders were arrested without incident."
The occurrence pad entry is very long because these two offenders had been involved in at least four earlier armed robberies. The occurrence pad entry concludes with this matter:
"It is worthy of note that Constable First Class Smith and Constable Thorn displayed an impressive dedication to their duties in, not only preventing an armed robbery occurring, but successfully pursuing these armed offenders to their ultimate arrest, leading to a clear up of a number of most serious criminal offences.
Also Senior Constable Thompson and Constable Porto should be commended for their thoroughness and attention to duty in effecting the arrest of the offenders who, at the time were armed with a loaded firearm, cocked with a bullet in the breach, ready to fire. All these constables should also be commended for their bravery in an armed and dangerous situation."
In his evidence-in-chief the plaintiff said that he and Senior Constable Thompson entered the car park from the opposite direction to the police from Bankstown. That was to prevent the offenders doubling back to the vehicle in which they had arrived in the car park and leave. Before entering the car park the plaintiff had been notified that the offenders were armed. He and his partner split up. They were between 5 and 10 metres apart. As he was unable to see the offenders, the plaintiff decided to lay down flat on the surface of the car park looking underneath the cars to see if he could see any feet or movement from somebody who was crouching. When he did that he realised that he had just walked past a vehicle that was now two cars away from him and he could see sets of feet and some human activity at the front of that vehicle parked against the wall. He was in very close proximity to it. The plaintiff said that he was frightened and scared. He said that adrenalin was rushing through his system. He described "fear", "adrenalin" and "excitement" all being rolled up within him. The plaintiff then started yelling at the offenders and demanded that they stand up and put up their hands. At that time he also stood up at a position a car away from the offenders and took up a shooting stance, as had his partner. The offenders then stood up and put their hands up in the air. The police from Bankstown then ran down to where the offenders had surrendered themselves and assisted in their arrest.
They found one .22 calibre rifle with a bullet in the breach and five further bullets in the clip. The rifle was cocked and ready to fire. However, when the offenders stood up to surrender they did not have that firearm in their hands. By the time they stood up with their hands in the air the plaintiff knew that they were no longer offering him any danger. He said shortly after the offenders surrendered the Armed Hold-up Squad also attended the scene. He acknowledged that both he and Constable Thompson were given commendations for this job. Again, this was the subject of barely any cross-examination. However, it is clear that it did not cause the plaintiff to take any time off work, to see any medical practitioner and again, was not the subject of any history given to any psychiatrist examining him.
The arrest of the offenders at Merrylands: 24 July 1991
The fifth event occurred on 24 July 1991. For the purposes of a prosecution the plaintiff prepared a statement bearing date 5 July 1991. It became exhibit J. Commencing at [3] of the statement is this:
"3. On Sunday 23 June 1991 I was rostered as the observer of Merrylands 1, between 10pm and 6.30am, 12 June 1991 with Constable Hiscox as the driver. At about 10.12am Monday 24 June we responded to a radio message to attend the car park servicing the block of units at number 25 St Anne Street, Merrylands to assist Senior Sergeant Stevens, who allegedly had four males under observation in a vehicle there.
4. A short time later both Constable Hiscox and myself attended that location. Upon arrival I maintained observations upon four male persons seated in a silver Holden Commodore ... At this point, other police vehicles also attended and also contained those persons within the vehicle. Sergeant Stevens then left the immediate area and had a short conversation with Detectives Clarke and Neale. I continued to observe the vehicle for a short time. Sergeant Stevens then approached me and told me something. I then left the immediate area and spoke to Mr LWA, a resident from that block of units. He then told me something.
After speaking to LWA I then returned to the Holden Commodore and noticed that the rear tailgate to the vehicle had been opened. As I approached I saw a firearm with a long barrel with an orange magazine attached. I also saw several woollen balaclavas on the floor of the parcel section of the station sedan. I then remained at the rear of the station sedan and continued to observe the four males, which were now standing outside the vehicle, each person positioned at each corner of the Commodore.
A short time later, Senior Sergeant Stevens approached me and told me something. Constable Hiscox and myself then placed an Aboriginal male, wearing a beanie on his head, in the rear of the police vehicle. This was the person I know now as AR. After arriving at the Merrylands Police Station he was handed over to Detectives Clarke and Neale for further investigations to be conducted. Those are the facts relating to this matter to the best of my recollections."
The plaintiff told me in his evidence-in-chief that whilst standing at the rear driver's side wheel of the station wagon that he had his revolver drawn and trained at the heads of the men in the vehicle. He could see the rifle in the back of the station wagon and he was concerned that one of the men in the back seat could reach back and grab the rifle and start firing it towards police. The plaintiff said that there was a ten-minute period when he and Constable Hiscox were alone with the four men in the vehicle whilst the sergeant was on a radio contacting the local station in order to get some back-up in the form of a caged truck in which anyone to be arrested could be detained.
The plaintiff, when challenged about what was written in exhibit J, said that his memory was defective in that he did not remember a detective being present. He went on to say although by that stage of his life he was having sleeping difficulties and firearms were being included in his dreams. However, again, there is no suggestion that the plaintiff reported any adverse psychiatric reaction to anybody. There is no suggestion he took any time off work. There was no suggestion that he saw any medical practitioner or any other person who might have received a complaint about his psychiatric condition and this event was not mentioned by the plaintiff to any of the psychiatrists that interviewed him for the purpose of his obtaining his HOD pension.
The pursuit at Villawood: 1 October 1992
The sixth and final event relied upon occurred on 1 October 1992. I have three contemporaneous documents about this event. All of those contemporaneous documents were made by the plaintiff. They describe the event somewhat laconically. The first is exhibit K, an occurrence pad entry. It was made at 11.55am on 1 October 1992. It is headed, "Constable First Class R Porto injured whilst on duty". The narrative is this:
"At 9.15am this date, in response to an URGENT call to assist the Fairfield Detectives who were in foot pursuit of an offender in Mandarin Street, Villawood. A short time later I received information from a resident that a male person was hiding in their yard at number 20 Normanby Street, Villawood. Whilst climbing the fence at the rear of that yard I jumped to the ground and my left foot came into contact with a pot plant, losing my balance, causing me to fall, striking my left knee against a large river stone.
I then felt immediate pain to my left knee and left ankle. I was then taken to Fairfield Hospital for examination.
This examination revealed that I had suffered torn ligaments to my left knee cap and left ankle. There appears that a minor hairline fracture is present to the ankle."
Notations on the right-hand side of the occurrence pad entry refer to a number of forms having been completed, to those involved and the vehicles involved and of a certificate being obtained from Dr Bing of Fairfield Hospital and of the plaintiff's being unfit for duty until at least 8 October 1992 and of the sick book having been endorsed.
The next document is exhibit 11 and is a claim for hurt on duty benefits (P124). The narrative of how the plaintiff came to tear ligaments in his left knee and left ankle at 9.15am on Thursday 1 October 1992 is this:
"Whilst scaling a fence between two residential properties I lost my balance while striking a ceramic pot plant on the ground. This caused me to lose balance and fall heavily, onto and twisting my left knee. The knee then struck a large river stone embedded in the garden, causing acute pain to that area."
Like the occurrence pad entry, that document records that the plaintiff was working with Constable A Velovski and also that Sergeant McEvoy was involved after his arrival at the scene.
The final document is the plaintiff's police notebook for this event which became exhibit 9. The police notebook records the plaintiff's commencing duty at 7am. At 9.15am there is reference to Crown Lane, Villawood. If one consults the street directory, exhibit R, one can see that behind one section of Normanby Street, Villawood is Crown Lane. Normanby Street turns into Crown Street and they appear from the street directory to be the one street but I note that Crown Lane was probably on the same alignment as Crown Street but Normanby Street has curved to the right as one looks north to join up with the northern section of Crown Street. Crown Lane may originally have been the southern alignment of Crown Street. The narrative contained in the plaintiff's police notebook is this:
"Pursuing stolen Holden HX. Two males on board. Assisting John Paccione - males on foot - residents tell police one male decamped over fence adjacent number 11. I climbed 6-7 foot Colorbond fence after male, left heel struck pot plant, causing me to lose balance falling to the left side, knee buckled and collided with a large river rock in the garden against fence - sharp intermediate pain to the left knee. Cracked heard. Male offender apprehended by myself - assisted by Velovski-Wood plus Sergeant McEvoy. Later conveyed to Fairfield Hospital by Velovski. Unable to support own weight on left knee.
Fairfield Hospital casualty - wheelchair - Dr Bing examined ankle - not knee. Advised x-rays arranged - taken - given eight days' leave WorkCover to 8-10-92 - crutches. Occurrence pad, P124, submitted 2pm 1 October 1992."
The document then gives the name of the witness to this event, Sergeant McEvoy. Entries on the rest of exhibit 9 indicate the plaintiff was absent from work until 8 October 1992 and thereafter he either did station work or took additional leave or rest leave until resuming normal duties on 18 October 1992.
These three documents indicate a fairly routine event where the plaintiff fell whilst trying to get over a fence injuring his left knee. The plaintiff's evidence about this event, however, is much more involved. In his evidencein-chief the plaintiff told me about working with Constable Velovski who was junior to him. He was "just a tag-along". As a Highway Patrolman the plaintiff generally worked alone but Constable Velovski was there to see how things were done in the Highway Patrol. His evidence continued thus:
"We were monitoring the radio for calls as we do and we heard one of the detective vehicles called on, that they were following a vehicle, following or pursuing a vehicle with two males on board following an armed hold-up at the Villawood Bus Depot. They gave us instructions over the radio that these two gentlemen were both armed with black pistols, they are Arabic or Middle Eastern in appearance and they also had pistol-whipped and assaulted two ladies at the Bus Depot and were in possession of a payroll of the bus depot. Being the fast response vehicle in the area and the only one on, we started to head towards the location and the streets that they were travelling upon at speed. The detectives were having trouble keeping up with the vehicle, either through the type of vehicle or driver skill and were loosing that vehicle and the vehicle was getting away. I managed to catch up to the rear of the detectives vehicle. I went around the vehicle ... having a fast car and then pursued that vehicle at close range for a period of 20 minutes ...
Q. How fast were you travelling?
A. The areas that we were travelling are very suburban back streets and at stages we reached speeds of 140 kilometres an hour and above, with sirens and a fully marked Police vehicle which was quite frightening.
Q. How long were you engaged in this pursuit?
A. It was a period of 20 minutes at least."
I interpolate at this time that if speeds of 140 kph were being exceeded then an average speed might be somewhere in the order of 100 kph. In 20 minutes one would travel over 30 kilometres at an average of 100 kph, yet the hold-up was at the Villawood Bus Depot and the pursuit on foot of an offender occurred in Villawood. It is hard to imagine any suburban street having over 30 kilometres of streets which could be traversed in the fashion the plaintiff asked me to believe. Furthermore, there is not any mention whatsoever in any of the three contemporaneous documents of any police pursuit at speed and at length.
In his evidence-in-chief the plaintiff went on to say that the vehicle ended up in what is obviously Crown Lane, a cul-de-sac. The plaintiff said that the offenders stopped their vehicle up against a fence that was either 2 or 3 metres high. He agreed it was a Colorbond fence but the height of it in the contemporaneous documents was only 6 or 7 feet. The offenders then used their vehicle as a ladder to climb over the fence. The offenders were a little bit ahead of the plaintiff and Constable Velovski. The plaintiff's evidence continued thus:
"I could see they both had something black in their hands which I assumed were pistols and I immediately jumped from the car with the sirens, lights and everything still going. I got out of the car. I didn't remove my firearm at that stage because I needed to jump a fence which was immediately in front of me. I jumped on the bonnet of the police car and then saw them. As I got on the bonnet of the car I saw them both running across the back yard towards a rear garage and they were probably in the middle of the backyard when I was at the top of the fence.
I was watching them intently. Although I was very affected by adrenalin I knew that when I was on top of the fence climbing that I don't have anything to protect myself and they were already in a firing position. They could have turned and bang, shot at me from close range or both of them while I was negotiating the fence and having both my hands on the fence.
36 "I now turn to the argument put forward by Mr Ower about a 'part of a part' of the 15%. Mr Ower is quite correct in his submissions that it flows as both a matter of logic and from the decision of Truss DCJ in Byrne, that where only part of the certified infirmity or only a large number of certified infirmities carries a special risk that there must be some apportionment. In [10] her Honour said this:
"In my view, the plaintiff is only entitled to rely upon risks which were causative of the infirmities certified in respect of which the pension was granted, and not upon risks which arise out of his police service, generally. [Paragraph](c) makes reference to the member being hurt on duty because the member was required to be exposed to risks."
37 Commencing at [20], her Honour said this (at [20]-[22]):
"As stated earlier, for the purposes of the subsection, the risks relied upon are causally relevant only to certify infirmity elements of chronic Post Traumatic Stress Disorder.
The defendant stated that subs (1A)(c) does not envisage a member being certified hurt on duty, as a consequence of more than one infirmity, and submitted that the event of certification of multiple infirmities where the infirmity relied upon is not, of itself, totally incapacitating, the member has no entitlement. The plaintiff does not contend that he is totally incapacitated as a consequence of the elements of PTSD, but says this does not preclude entitlement.
I do not consider that the wording of s 10(1A)(c) supports the defendant's submission. In my view the relevant events required to establish prima facie entitlement are total incapacity for work outside the police service, and the member being hurt on duty. Once established, the Court then needs to determine:
● whether there was exposure to any causally relevant risks;
● if so, the additional amount which is commensurate with those risks."
38 Mr Ower was gracious enough not to repeat the submission that he obviously made to her Honour that is the subject of [21] of her Honour's reasons, and obviously now accepts that what her Honour said was correct and indeed what has been the practice for the nearly 20 years that I have been on the bench dealing with claims under this Act.
39 Here there are a large number of what I refer to as 'orthopaedic conditions', as well as the psychological condition and the hearing-loss and the resulting tinnitus. The defendant submits that I should attribute two-thirds of the incapacity to the orthopaedic injuries, because they, in effect, are more incapacitating than the plaintiff's psychological condition."
What occurred in both Byrne and Conway was caused by there being multiple conditions suffered by a plaintiff, only some of which carried a risk which could be categorised as an abnormal risk and where part only of the incapacity could be referrable to the condition which was the subject of the abnormal risk.
This led me to raise in submissions the proposition of what part of the incapacity should be attributed to the knee injury and what part of the incapacity should be attributed to the psychiatric condition; and having so apportioned the incapacity, to apply some proportion to each part of the incapacity, and then to add those proportions together to come up with the overall assessment of the commensurate benefit. This approach was opposed vigorously by Mr Perrignon, but his opposition, based on what he said the Act meant, would not provide the Court with an ability to do what was done in both Byrne and Conway. However, here the only two certified infirmities are each the subject of an abnormal risk. The risks in respect of the PTSD, I have categorised as moderate; the risks in respect of the plaintiff's knee injury, I have considered to be moderate.
Here it is patently clear that the plaintiff stopped working because of, in essence, his knee condition and perhaps his matrimonial difficulties, and it is clear that the plaintiff became totally incapacitated because of the condition of his knee. In crossexamination on 25 October 2013 the following evidence was given:
"Q. But, the reason that you had given up work two or three years beforehand was more to do with your leg than anything else, wasn't it?
A. Yes, the leg and the subsequent operation and the recovery from that point."
However, it is clear that the knee condition is now only partially incapacitating. In his more recent report Dr Endry-Walder said this:
"He would, in my opinion, be fit from the physical point of view of working in an essentially sedentary type of work situation, some clerical or administrative-type of employment in which he has the freedom to get up and move about when his knee gets stiff with prolonged sitting."
Immediately preceding that, Dr Endry-Walder said this:
"In March 2008 I wrote that, 'Mr Porto remains with functional restrictions in any work situation in which he has to be on his feet for prolonged periods of time, run, squat, negotiate uneven ground or stairs on account of the left knee injury, and nothing much has changed in the meantime except that perhaps he has even more pain at the knee than was reported previously."
Of course whether the plaintiff actually had more knee pain depends on his credibility. As Mr Perrignon rightly submitted, there is nothing to suggest that, as far as the knee itself is concerned the plaintiff, could not do work other than clerical or administrative work, such as working as a forklift driver or bench work, assembly work, or work on a process line where he could sit or stand at will. However it is now clear that the plaintiff is accepted by both Dr Klug and Associate Professor Glozier as being totally incapacitated by his psychiatric condition. In the circumstances I believe that I need not apply the principles adopted by Truss J in Byrne or by me in Conway. One finding is sufficient to answer both conditions.
Having assessed a moderate risk for each condition what amount is commensurate with the risk to which the plaintiff was required to be exposed? The defendant assessed the appropriate ratio as three in ten. The plaintiff asks me to assess it as essentially ten out of ten. Clearly I do not accept that. It must be remembered that these are judicial proceedings and this is a hearing de novo. The plaintiff bears the onus of proof. The plaintiff must establish his case on the balance of probabilities. In my view a ratio of three to ten represents a moderate risk. In my view the plaintiff has failed to discharge the onus which is upon him of persuading me on the balance of probabilities that the risk to which he was exposed entitled him to a sum of greater of 17.25% of his attributed salary of office. My inability to accept the plaintiff's evidence makes it difficult, and makes it very difficult, for me to accept the extent of the abnormal risk in any great detail. In those circumstances the plaintiff's claim for an increase in his superannuation allowance fails.
Before moving on to the question of backdating, I should point out that in connection with the arguments concerning whether the plaintiff was required to be exposed to risk in connection with the incident in the locker room I have consulted the relevant speeches in both the Legislative Assembly and the Legislative Council for the passage of the Police Regulation (Superannuation and Appeals) Amendment Act 1979 which largely cast the Act into its present form. The speech in the Legislative Assembly was given by Mr Hills, the Minister for Industrial Relations, inter alia. On p 1845 of Hansard for 16 October 1979 one can find the following:
"The bill would provide a statutory minimum superannuation allowance of 72.75 per cent of salary. A member of the police force whose disability also causes incapacity for work outside the police force would be paid an amount in addition to the disablement allowance. The additional amount would not exceed 12.25 per cent of the salary of office and be commensurate with the extent of incapacity. In such cases the maximum annual allowance would therefore be 85 per cent of salary. However, in cases of total incapacity associated with exposure to exceptional risk, the additional amount would be no less than 12.25 per cent and no more than 27.25 per cent - the maximum allowance being therefore 100 per cent of salary. The result would be that hurt-on-duty pensions could reflect the degree of incapacity suffered and also any exceptional risk undertaken."
The words "also any exceptional risk undertaken" do not assist to any extent in interpreting the words "was required to be exposed to risks". The speech in the Legislative Council was given by Mr D P Landa. At p 2346 of the same volume of Hansard the following is contained in Mr Landa's speech of 30 October 1979:
"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 per cent of the salary of office and will be commensurate with the extent of incapacity. The maximum annual allowance will be, therefore, 85 per cent of salary. However, where there is total incapacity associated with exposure to exceptional risk the additional amount will be no less than 12.25 per cent and no more than 27.25 per cent. The maximum allowance is, therefore, 100 per cent 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."
Again, that speech gives me no assistance in interpreting the words "was required to be exposed to risks".
DATE OF COMMENCEMENT OF PENSION
The remaining issue concerns the date from which the increased pension ought to be paid. The relevant provision is s 10(1D) which is in the following terms:
"STC may:
(a) make a determination at any time of an additional amount of a superannuation allowance under this section, and
(b) vary any such determination at any time,
and may direct that the determination of variation take effect from such date as STC considers appropriate."
That provision must be contrasted with s 9A(4) which provides this:
"An annual superannuation allowance granted under s10 to a former member of the police force who resigned or retired is, subject to this Act, payable as from:
(a) the date the former member lodged the application for the allowance that was determined by STC certifying the matters referred to in s10B(2)(b), or
(b) such earlier date as STC may determine if STC is satisfied that there are exceptional circumstances that merit STC doing so."
In the Act "STC" is the abbreviation for the current defendant. Authorities relevant to the interpretation of s 9A(4) are Swift v SAS Trustee Corporation [2010] NSWCA 182 and SAS Trustee Corporation v Cox [2011] NSWCA 408. Here of course the pension entitlement arose at the time of the plaintiff's resignation, 28 April 1995. On one view of the matter the plaintiff's pension ought to have commenced on 29 April 1995. However, the plaintiff did not seek that the pension commence at that time, but at the time he sought his medical retirement, namely 5 August 2008, or on the date on which it was received by the defendant on 7 October 2008.
The plaintiff's increased pension was only granted from 14 December 2011, the time that the defendant received the plaintiff's application for his increased pension benefit. That is clear from exhibit B. There are a number of unreported authorities which may be relevant. The first is my decision in Tanks v SAS Trustee Corporation (1 September 2004, RJ894/03), Pinkerton v SAS Trustee Corporation (Truss J, 10 August 2007, RJ319/06), Wheatley v SAS Trustee Corporation (Robison J, 3 August 2011, RJ424/10), Hoffman v SAS Trustee Corporation (Ashford J, 15 May 2013, RJ512/12) and Murphy v SAS Trustee Corporation (Ashford J, 15 May 2013, RJ516/12).
In Tanks I said commencing at [28]:
"28. I am told, without objection, that the plaintiff only made an application under s 10(1A)(c) on 16 June 2003. As I earlier stated, relying on the defendant's notice of grounds of defence, the plaintiff was discharged from the Police Force on 27 February 1997. He was granted a superannuation allowance for total incapacity under paragraph (b) on 27 August 1997. I am told, again without objection, that the defendant's policy is to backdate any increased allowance to the date of the original grant provided that it is made within twelve months. One can accept therefore that the plaintiff has received 85 per cent of the salary of his office since 27 February 1997. However, it was not until more than six years later on 16 June 2003 that the plaintiff made an application under paragraph (c). He clearly made an application under (b) at some time prior to 27 August 1997 and one would infer within six months of being medically discharged. Clearly the plaintiff's delay ought not provide him with a windfall or the defendant with a detriment. Like my retired colleague, his Honour Judge Burke, I agree that there is much in Matthew Chapter 7, verse 7:
'Ask, and it shall given you; seek, and you shall find; knock, and it shall be all opened unto you.'
29. If the plaintiff fails to ask or fails to seek or fails to knock he ought not, in my view, have the benefit of his failure. It appears to me that the appropriate date from which the increased superannuation allowance ought be paid should be from 16 June 2003."
Strictly speaking, that dictum is obiter. It is clear from [27] of my reasons that I made that observation to obviate further litigation between the parties in those proceedings.
In Pinkerton the plaintiff was medically discharged as hurt on duty on 12 August 1993. He was granted the basic pension of 72.75% of the salary of his office at the date of discharge. On 23 September 2005, over twelve years later, he applied for an increase. By letter dated 25 January 2006 the defendant advised that PSAC had approved an increase to 84% of the applicable salary at the date of discharge, payable on and from the date of application, namely 23 September 2005. On 7 March 2006 the plaintiff's solicitors wrote to the defendant applying for the pension to be backdated to the date of medical discharge, namely 12 August 1993. At [10] her Honour said this:
"The defendant relies upon a judgment of Neilson DCJ in Tanks v SAS Trustee Corporation...and says that if a plaintiff does not seek certain relief he ought not be entitled to complain if the he does not get it. In Tanks the plaintiff's pension commenced from his date of discharge, 24 February 1997. An increase was approved six months' later and he applied for a further increase on 16 June 2003, in respect of which Judge Neilson allowed the appeal and ordered an increase from the date of application. His Honour referred to the plaintiff's delay, which he said ought not provide him with a windfall or the defendant with a detriment. In this present case the delay was some 12 years. It was submitted on behalf of the plaintiff that Tanks is of limited assistance because the issue arose as an afterthought and was not properly argued. However, having regard to the judgment I am satisfied that the matter was properly considered by his Honour."
In that case her Honour dismissed the application. It appears clear to me, as it appeared to Mr Ower who drew the decision of Pinkerton to my attention, that her Honour essentially agreed with the reasoning which I had expressed in Tanks.
The other three decisions to which I have referred in my view state no matter of principle. Indeed Wheatley may contain arguments which are inconsistent with principles adopted by the Court of Appeal in Swift and in Cox. In Wheatley Robison DCJ said on p 6 this:
"I repeat, the defendant is not an insurance company, it has a position of trust and should act accordingly. That is, of course, not to say that everybody who seeks benefits pursuant to the legislation or an increase in benefits or whatever the case may be should automatically be entitled to such benefits simply because of a relationship between the trustee and the potential beneficiary. That, of course, is not the case and could not possibly be so, every case needs to be determined on its own circumstances."
In essence his Honour relied upon the facts of that case. The same reasoning process appears to have been adopted by her Honour Judge Ashford in Hoffman and Murphy, which were both delivered on the same day. It is clear from the decisions in Swift and Cox that delay is a relevant consideration.
Here the plaintiff's entitlement to his pension crystallised on 8 October 2009 when the Commissioner of Police accepted that the infirmity in the plaintiff's left knee was caused by his having been hurt on duty. On 14 December 2009 the present defendant advised the plaintiff of his entitlement to seek an increased pension. However, he did not do so until his application was received by the defendant on 14 December 2011, two years later. There was a delay of two years in seeking an increased pension entitlement. As I have already pointed out, I do not accept the plaintiff's evidence that he did not receive the letter of 14 December 2009. Even if he did not, it is clear that he was relying upon the services of a solicitor and the advice of a solicitor with expertise in proceedings under the present Act. Initially I was drawn to the argument that it was proper for the plaintiff's solicitor to refrain from seeking an increased pension until the question of whether his PTSD was caused by the plaintiff's having been hurt on duty. That in essence was conceded by the Commissioner of Police on 15 November 2010. Nevertheless, there was still a delay of over a year before the plaintiff sought an increased pension benefit.
Mr Ower for the defendant properly pointed out that it was common for former members of the NSW Police to apply for an increased pension, even if there were still outstanding proceedings such as occurred in the current case. Assuming that the current defendant maintained the policy to which I referred in [28] of Tanks then the plaintiff could have applied for an increased pension by 8 October 2010, and if granted it would have been backdated to 7 August 2008. If an increased pension had been sought within that timeframe, it probably would not have amounted to 85% of the salary of the plaintiff's office, but would most probably have been greater than 72.75% following upon the decision of the Court of Appeal in the Lembcke v SAS Trustee Corporation (2003) 25 NSWCCR 464.
Assume for the moment that the defendant agreed to increase the plaintiff's pension to 80%, and had the application been made on or before 8 October 2010, it would have been backdated to 7 August 2008. Once the Commissioner of Police had accepted that the plaintiff's PTSD was caused by his having been hurt of duty, as he did on 15 November 2010, the plaintiff could have made a further application for an increased pension within one year of that date, and the defendant could well then have increased the pension to its current level of 90%. In those circumstances, given no undue or unexplained delay and the plaintiff's applications falling within the defendant's admitted policies, it would have been proper to backdate the increase to 90% to the date of application for medical discharge, 5 August 2008, or the date on which it was received by the defendant, two days later. Should there have been no relevant delay I would have so determined.
However, the plaintiff elected not to seek an increased pension promptly after the decision of the Commissioner of Police of 8 October 2009, and indeed did not seek an increased pension promptly after the decision of the Commissioner of Police, embodied in the consent made by this Court on 15 November 2010, but delayed making any application to the defendant until 14 December 2011. Given this unexplained delay it appears to me that I should follow the principle which I enunciated in Tanks, which has the approbation of my more senior colleague, her Honour Judge Truss.
Mr Perrignon for the plaintiff made much emphasis in his submissions on the plaintiff's protestations that he knew nothing about his ability to apply for an increased pension and relied wholly on his solicitor. However, a solicitor acts for a litigant and the solicitor is the litigant's agent. Not to attribute the solicitor's failure to advise the plaintiff to apply for an increased pension promptly denies the principle underlying the whole of the law of agency: qui facit per alium, facit per se: who acts through another acts himself. In these circumstances I am unable to make a determination that is other than the determination made by the defendant on 26 July 2012, as set out in exhibit B, the letter of the defendant of 27 July 2012. Accordingly the current application must fail.
I have no doubt that the plaintiff will be sorely and perhaps vociferously aggrieved by my decision. However, with the utmost respect to him, I would point out that he should consider himself to be the very fortunate beneficiary of a very generous scheme. Were it not for irrefragable facts and were the matter before me as res integra, I would have found that in 1994 the plaintiff had an episode of a Major Depressive Disorder. A Major Depressive Disorder is a biochemical abnormality of the brain, which is not caused by any external stressor. However, an episode of a Major Depressive Disorder can be triggered by an external stressor. The only external stressor which is objectively pointed to by the evidence in 1994 is some difficulty between the plaintiff and his then partner, his present wife. It is clear that by the year 2000, when the plaintiff sought to rejoin the NSW Police, that that episode of a Major Depressive Disorder had gone away. That is that the plaintiff had recovered from that episode of Major Depressive Disorder. However, a Major Depressive Disorder can reappear, its path is cyclical. It appears to me that the plaintiff's Major Depressive Disorder was triggered off again in 2007 or thereabouts. It may not have been triggered off by any external stressor at all. If it were, I would not attribute any such external stressor to the plaintiff's service in the New South Wales Police, which ceased on 28 April 1995. A potent stressor could have been the plaintiff's cannabis habit and the symptoms that he experienced when he sought to withdraw from the use of that substance. Again, stressing the point that I am bound by the irrefragable facts, I point out what the evidence to me suggests. Were I seized of the fact finding matters in the current case I would only accept the plaintiff's knee condition as being caused by his having been hurt on duty, and that only causing a partial incapacity for work. As to the diagnosis of a Major Depressive Disorder, I would point to the summary contained in the report of Associate Professor Glozier of 6 February 2012, which I quoted at [113].
For these reasons I confirm the decisions of the defendant made on 26 July 2012, communicated to the plaintiff's solicitors by letter dated 27 July 2012.
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Decision last updated: 21 March 2014
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