SAS Trustee Corporation v Schmidtke - [2012] NSWCA 269

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: SAS Trustee Corporation v Schmidtke [2012] NSWCA 269
Hearing dates: 27 August 2012
Decision date: 27 August 2012
Before: Bathurst CJ at [1] and [25];
Basten JA at [2];
Tobias AJA at [24]
Decision:
(1) Appeal dismissed.
(2) Appellant to pay the respondent's costs in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
ADMINISTRATIVE LAW - failure to take into account relevant considerations - whether evidence of witness a mandatory consideration - whether failure to take into account evidence expressly addressed in judgment

APPEAL - subject-matter limited to determination in point of law - passage in reasons indicating legal error - whether error material where assessment of loss accorded with principle

POLICE - officer hurt on duty - psychological injury - certification of date of injury by Commissioner - whether pre-existing injury - whether causes of impairment properly apportioned

WORDS & PHRASES - "in point of law" - District Court Act 1973 (NSW), s 142N
WORKERS COMPENSATION - lump sum compensation for psychiatric injury - transitional provisions require reduction in compensation for events occurring before amendment - whether events occurring before amendment reduce whole person impairment - whether plaintiff suffered previous injury - Workers Compensation Act 1987 (NSW), Sch 6, Pt 18C, cl 3(1); Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 323
Legislation Cited: District Court Act 1973 (NSW), s 142N
Police Regulation (Superannuation) Act 1906 (NSW), ss 10D, 12D, 21
Workers Compensation Act 1987 (NSW), ss 15, 65A; Sch 6, Pt 18C, cl 3
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 323
Cases Cited: Maguire v SAS Trustee Corporation (District Court, unrep, 30 November 2009)
SAS Trustee Corporation v Pearce [2009] NSWCA 302
Category: Principal judgment
Parties: SAS Trustee Corporation (Appellant)
Glen Arno Schmidtke (Respondent)
Representation:
Counsel:

Mr D E Baran (Appellant)
Mr I D Roberts SC/Mr T Ower (Respondent)
Solicitors:
SMK Lawyers (Appellant)
Harris Wheeler Lawyers (Respondent)

File Number(s): CA 2011/325577
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-09-14 00:00:00

Before:

Ashford DCJ

File Number(s):

DC RJ693/2010

Judgment

BATHURST CJ: I agree with Basten JA.

BASTEN JA: From the date he was attested (11 March 1983) until the date he ceased duties (30 August 2007) the respondent was an officer with the New South Wales Police Force. Following his retirement on medical grounds he sought payment of a lump sum gratuity in respect of psychological injury pursuant to s 12D of the Police Regulation (Superannuation) Act 1906 (NSW) ("Police Superannuation Act").

On 13 April 2010 a delegate of the Commissioner of Police determined…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWCA 269
Decision Date: 27 August 2012

CaseChat Overview and Summary

The SAS Trustee Corporation appealed to the Court of Appeal of New South Wales against a decision of the District Court which had awarded lump sum compensation to Mr. Schmidtke for a psychological injury sustained during his employment as a police officer. The dispute concerned the assessment of Mr. Schmidtke's whole person impairment and the application of transitional provisions under the *Workers Compensation Act 1987* (NSW) and the *Workplace Injury Management and Workers Compensation Act 1998* (NSW).

The primary legal issues before the Court of Appeal were whether the District Court judge had erred in law by failing to take into account relevant considerations, specifically the evidence of a witness, and whether a passage in the judge's reasons indicated a legal error that was material to the assessment of loss. The court also considered whether the Commissioner's certification of the date of injury was determinative, whether a pre-existing injury affected the assessment, and how the causes of impairment should be apportioned in light of the transitional provisions.

The Court of Appeal dismissed the appeal, finding that the District Court judge had not erred in law. The court reasoned that while the judge's reasons might have been expressed in a way that could be construed as a failure to consider certain evidence, the ultimate assessment of the whole person impairment was consistent with applicable legal principles and the evidence before the court. The court also held that the transitional provisions, which required a reduction in compensation for events occurring before a certain amendment, did not necessitate a reduction in the whole person impairment assessment in this instance, and that the judge had properly considered the apportionment of causes of impairment. The appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

(1) Appeal dismissed.

(2) Appellant to pay the respondent's costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	SAS Trustee Corporation v Schmidtke [2012] NSWCA 269
Hearing dates:	27 August 2012
Decision date:	27 August 2012
Before:	Bathurst CJ at [1] and [25]; Basten JA at [2]; Tobias AJA at [24]
Decision:	(1) Appeal dismissed. (2) Appellant to pay the respondent's costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	ADMINISTRATIVE LAW - failure to take into account relevant considerations - whether evidence of witness a mandatory consideration - whether failure to take into account evidence expressly addressed in judgment APPEAL - subject-matter limited to determination in point of law - passage in reasons indicating legal error - whether error material where assessment of loss accorded with principle POLICE - officer hurt on duty - psychological injury - certification of date of injury by Commissioner - whether pre-existing injury - whether causes of impairment properly apportioned WORDS & PHRASES - "in point of law" - District Court Act 1973 (NSW), s 142N WORKERS COMPENSATION - lump sum compensation for psychiatric injury - transitional provisions require reduction in compensation for events occurring before amendment - whether events occurring before amendment reduce whole person impairment - whether plaintiff suffered previous injury - Workers Compensation Act 1987 (NSW), Sch 6, Pt 18C, cl 3(1); Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 323
Legislation Cited:	District Court Act 1973 (NSW), s 142N Police Regulation (Superannuation) Act 1906 (NSW), ss 10D, 12D, 21 Workers Compensation Act 1987 (NSW), ss 15, 65A; Sch 6, Pt 18C, cl 3 Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 323
Cases Cited:	Maguire v SAS Trustee Corporation (District Court, unrep, 30 November 2009) SAS Trustee Corporation v Pearce [2009] NSWCA 302
Category:	Principal judgment
Parties:	SAS Trustee Corporation (Appellant) Glen Arno Schmidtke (Respondent)
Representation:	Counsel: Mr D E Baran (Appellant) Mr I D Roberts SC/Mr T Ower (Respondent) Solicitors: SMK Lawyers (Appellant) Harris Wheeler Lawyers (Respondent)
File Number(s):	CA 2011/325577
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2011-09-14 00:00:00 Before: Ashford DCJ File Number(s): DC RJ693/2010