Scott Anderson v SAS Trustee Corporation - [2019] NSWDC 406

District Court

New South Wales

Medium Neutral Citation: Scott Anderson v SAS Trustee Corporation [2019] NSWDC 406
Hearing dates: 6 - 8 March 2019
Date of orders: 08 March 2019
Decision date: 08 March 2019
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
See [87]

Catchwords: POLICE SUPERANNUATION -
Legislation Cited: Police Regulation (Superannuation) Act 1906, Workers Compensation Act 1987
Cases Cited: Boland v SASTC (1999) 97 IR 127, Morley v SASTC [2007] NSWIRC 90, SASTC v Ainsworth [2011] NSWIRC 128, Locker v SASTC [2014] NSWIRC 144, Cook v SASTC [2014] NSWIRC 43
Category: Principal judgment
Parties: Scott Anderson (Plaintiff)
SAS Trustee Corporation (Defendant)
Representation:
Counsel:
Mr M Hammond (Plaintiff)
Mr T Ower (Defendant)
Solicitors:
Carroll & O’Dea (Plaintiff)
SASTC (Defendant)

File Number(s): RJ 231/18
Publication restriction: Nil

Judgment

[7 MARCH 2019]

HIS HONOUR: The plaintiff, Scott George Anderson, is a former senior constable of the police. He was attested as a probationary constable of police on 25 November 1983. He there upon became a contributor to the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906. The plaintiff submitted his resignation from the police force on 18 June 1996 and asked that his last day of duty be 25 June 1996. That came to pass. At the time that he resigned that plaintiff did not tell anybody in authority nor did he mention in any document that he was incapacitated for the duties of his office as a senior constable of police.
On 1 December 2011 the defendant received from the plaintiff's then solicitors, an application under s 10B(2) of the Act applying for a medical discharge benefit. The date of the application may be 1 September 2011. The date is difficult to read. It is clear that the application was originally sent to the defendant on 30 August under a cover of a letter dated 30 August 2011 but it went astray. It was resubmitted under the cover of a letter on 30 November 2011. On 24 September 2015, almost four years later, the Police Superannuation Advisory Committee, under delegated authority from the defendant, declined to certify pursuant to s 10B(2) of the Act that the plaintiff was incapable from a specified infirmity of body or mind of discharging the duties of his office because of the paucity of medical evidence available.
That gave the plaintiff the right to apply to this Court within six months of that decision. However, the defendant gave the plaintiff erroneous advice and advised him that he could within two years of the notification of the decision of 25 September 2015 make an application to the dispute officer of the defendant. The matter went before the defendant's Dispute Committee on 5 September 2017, two years later, and it determined that it was not satisfied that there was sufficient basis to certify that the plaintiff was incapable of discharging the duties of his office at the time of his resignation on 25 June 1996.
The defendant then gave the plaintiff further erroneous legal advice and advised him that he may appeal to the Supreme Court within six months of notification of that decision. The plaintiff did so. However, whilst the matter was pending in the Supreme Court, the Court of Appeal determined that the correct method of appeal was to this Court, and that there was no right of appeal at any time from PSAC to the Dispute Committee or either the Industrial Relations Commission In Court Session, or the Supreme Court. The Supreme Court then transferred the matter back to this Court and the proceedings began in this Court on 13 June 2018. Very prudently, the defendant has not raised any defence of the plaintiff's application being out of time.
The relevant law that I must apply is the law in force at the time that the plaintiff resigned. I have been provided by the defendant with a number of authorities to establish that point. In particular, I have been referred to Boland v SASTC (1999) 97 IR 127, Morley v SASTC [2007] NSWIRC 90, SASTC v Ainsworth [2011] NSWIRC 128, Locker v SASTC [2014] NSWIRC 144 and Cook v SASTC [2014] NSWIRC 43. However, I really need go no further than to consider the dicta in SASTC v Cox [2011] NSWCA 408 which dicta are conveniently set out in Locker which is a mercifully short judgment.
Section 10B(2) was at the relevant time this:

(2.) An annual superannuation allowance or gratuity must not be granted under s 10 to a former member of the police force who resigned or retired unless:
(a) the former member notified the Commissioner of Police before the member's resignation or retirement and within six months of receiving the injury which has caused the member's infirmity of body or mind, of that injury:
(a)(i) where regulations so require, the notification was in or to the effect of the prescribed form, and
(b) the Board (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member would have been incapable, from that infirmity of body or mind, of discharging the duties of his office at the time of his resignation or retirement."

Section 10B(2B) was in the following terms:

"(2B) The Board may certify that a former member of the police force was incapable of discharging the duties of the member's office if the member was incapable of discharging the duties of the office in the police force in which the member was employed at the time of the member's resignation or retirement and also any other office in the police force:
(a) which was available to the member at that time,
(b) which was not lower in rank than the office in which the member was then employed, and
(c) in which it would have been reasonable to expect the member to have been employed."

The reference to the "Board" which is contained in the legislation I have quoted is a reference to the State Authorities Superannuation Board which, of course, was the predecessor to the current defendant.

The Act requires me to consider the duties of the office that the plaintiff was actually performing at the time of his resignation. There are alternatives to considering that role in (2B), but the relevant conjunction is "and" and not the disjunctive quote "or", so that the plaintiff can be incapable of doing either the actual duties of his office at the time of his discharge and other work which was available to him at the same or higher rank and which it would have been reasonable to expect him to have done.

Plaintiff’s background

The plaintiff was born in 1963. He is currently 55 years old He attended Fairfield Boys High School and obtained the Higher School Certificate in 1980. He then worked for three years as a labourer with Comalco at Yennora. On 5 September 1983 at the age of 20 he became a police trainee. This was in the days before the Goulburn Police Academy. His traineeship was performed at Redfern Police Barracks. He was attested, as I have already mentioned, as a probationary constable on 25 November 1983 and took up work at Parramatta performing general duties.

MVA – 1 March 1984

The plaintiff was involved in a motor vehicle accident on 1 March 1984. The plaintiff was in the course of his service as a probationary constable of police at the time of the motor vehicle accident. He completed a report of injury form and recorded the event in some considerable detail. It is worthwhile noting the detail:

"On Thursday 1 March 1984 I attended Sydney with Constable First Class McCormack, to deliver warrants to the Sydney District Court, Queen Square. On returning to Parramatta Police Station via Victoria Road we were involved in a motor vehicle accident at the corner of John Street and Victoria Road, Ermington. We were travelling in a westerly direction along Victoria road, Ermington, in the number 3 lane. On nearing the intersection of John Street and Victoria Road a white Datsun, registered number I JL 460, owned
and driven by Robert H Gibson was waiting to make a right hand turn into John Street. While he was waiting to make the turn, a red Celica, registered number JSI 792, owned and driven by Victor Leslie Whiting, collided with the rear of Mr Gibson's car causing it to veer over the wrong side of the road and thus causing it to collide with the front of the police vehicle, registered number LZP 386, serial number 13989, causing extensive damage. As a result of the collision, Constable McCormack and myself were taken to Westmead Hospital to be treated for back and neck injuries."

The typing of that description of the event occupied the whole or the relevant space of the form. The form then provided for two lines in which could be inserted "nature of injuries". All that has been typed in by the plaintiff was "Stiffness in the left side of the neck". That does not occupy all of the first of the two lines in which the nature of injuries could be described. The plaintiff then continued filling out the form and indicated that the doctors he consulted were Dr Zammit, Dr Purcell, and Dr Milazzo. The form was completed and signed by the plaintiff on 10 March 1984, nine days after the event.

The only medical evidence referrable to this motor vehicle accident are two certificates of Dr M D Purcell of Fairfield Heights. Those two certificates are exhibit R. In the first certificate Dr Purcell stated that he saw the plaintiff on 2 March 1984 and the plaintiff was suffering from a "painful neck" which he stated was the consequence of his being involved in a motor vehicle accident on the preceding day. Dr Purcell certified the plaintiff as unfit for three days but that he ought be fit to return to duty on 5 March 1984. It is to be noted that the certificate provided three lines in which the complaints could be record, but the words "painful neck" occupied only the first line, which is only half line, and one part of the second line. In other words, there was plenty more space on the form for the doctor to describe any other complaints that may have been made by the plaintiff. The second certificate of Dr Purcell refers to a consultation, one infers, on 5 March 1984 because it certifies the plaintiff as unfit for duty between 5 and 7 March 1984. The diagnosis provided on that certificate is this, "Neck injury resulting from vehicle collision".
The Commissioner of Police accepted that event as being "hurt on duty". The nature of the injury described in the official police records, which are part of exhibit Q, refer to a "neck injury". The plaintiff, however, now says that in that event he also injured his right knee.
The next medical report before me is from Dr Barry Collins, an orthopaedic surgeon. The report is addressed to Dr Purcell of Fairfield Heights. A copy of it appears to have been sent to the Commissioner of Police and it bears a date stamp of 20 May 1986. The report itself is dated 7 May 1986. It is this:

"I first examined this patient on 05/05/86. He gave a history that about to three years previously he had suffered a twisting injury to his right knee, whilst playing football. Initially he had a swollen knee, and since that time he has had recurring episodes of giving way and swelling and stiffness. He localised his pain to the posterior aspect of the knee, and he says that he has episodes which sound very much like locking and unlocking. He is aged 23, single and is a general duty policeman. He is soon to commence a special course of training in the police force. He plays football at a fairly senior level of junior football. On examination, there is slight effusion in his knee. There was no localised tenderness and I was not able to demonstrate any ligamentous instability. He had had an arthrogram which shows some peripheral detachment of his lateral meniscus.
The radiologist has reported a possibility of a tear also in the lateral meniscus. In any case, he requires assessment of his knee by arthroscopy and appropriate arthroscopic surgery. I have recommended his admission for this purpose in the near future, and I will report to you his progress. His arthroscopy was scheduled for 13/05/86. He said that he had an appointment with the police medical officer on that occasion. I spoke to Dr Baim who said that he could keep his appointment some other time."

Unfortunately, I have nothing further from Dr Collins except a certificate of incapacity for work between 13 and 17 May 1986. The inference to be drawn from that certificate is that the plaintiff did undergo the arthroscopy on 13 May 1986 and was incapacitated by that procedure for that period of time. The plaintiff has stated that he had that arthroscopic procedure. What Dr Collins findings on examination were I do not know. Unfortunately, the arthrogram referred to by Dr Collins has not been put before me. Indeed, the records of Dr Purcell have not been put before me. That arthrogram had not been put before me nor had any other records generated by Dr Collins been put before me, nor is there any evidence that such records are no longer available to be put into evidence.

It is to be noted that the plaintiff did not mention to Dr Collins injuring either of his knees, but in particular his right knee, in the motor vehicle accident of 1 March 1984 which was within the period of time during which the plaintiff had told Dr Collins that he was suffering symptoms in his knee since a football injury, that is, in a period of three years. The inference to be drawn is that the plaintiff did not injury his right knee in the motor vehicle accident of 1 March 1984.
The plaintiff was appointed a constable of police on 25 November 1984. At that time he was 21 years old. In 1985 he was transferred from Parramatta to the Ermington Police Station, but that was in fact a "outpost" of the Parramatta Patrol. On 11 October 1988 the plaintiff became a member of the Tactical Response Group for the Northwest Region. The plaintiff told me that there were in fact four regional TRGs, each comprising 25 officers, so the total number of TRG members in the Sydney metropolitan area was 100. The TRG was previously known as the Riot Squad and has subsequently been reformed and renamed as the SPG, the State Protection Group. The duties of a member of the TRG are more physically demanding and physically onerous than ordinary general duty policing. There can be no dispute about that. Furthermore, the plaintiff was required to pass certain test in order to join the TRG and was required to maintain his fitness to be a member of that unit. Indeed, another member of the TRG, a retired police officer, Mr John James Holloman, told me that members of the group had to regularly perform 5 kilometre runs in order to maintain their position in the TRG.

Tamworth Music Festival event

On 25 November 1988, shortly after his transfer to the TRG, the plaintiff became a constable first class. The plaintiff's evidence is that in one particular year he was required to attend the Tamworth Country Music Festival as part of his work. This is most commonly described as occurring in January 1989. It is common ground and well known in the Australian community that the Tamworth Country Music Festival occurs in the latter half of January in each and every year. The plaintiff told me that he was required to give chase to an offender who was seeking to escape from the Tamworth Police Station, and as a result of his interaction with the offender, perhaps by way of tackling him, he was involved in a struggle with the offender which led to the plaintiff’s suffering a number of injuries.
He described to me injuries to his face, his back, his hands and his knees. He told me that he was taken to the Tamworth Hospital and treated there. He also told me that he attended upon Dr Purcell in Sydney and was told by Dr Purcell to "keep ice on it", but when I asked the plaintiff what he meant by "it" he said that it was his "knees". However, if the doctor did say, "keep ice on it" the inference to be drawn is that he only complained about one knee. In any event, there is nothing in evidence from the Tamworth Hospital nor from Dr Purcell about any attendance upon either of them in January 1989 or January in any other year, nor is there any evidence that the records in question no longer exist. The plaintiff told me that this was accepted as being a "hurt on duty" event, but there is no confirmatory evidence of that and nothing in exhibit Q to suggest that such was the case. There is no evidence that the plaintiff was required to take any time off duty as a result of that event, but it may be that he had symptoms during a rest period.

Event at Eden 13 March 1989

There is no dispute that the plaintiff was involved in an event on 13 March 1989. That was a Monday. The plaintiff told me that he and other members of the TRG had been taken down to Eden in order to be able to deal with protestors who were complaining about the logging of native forests in the Eden region. However, on Sunday, 12 March 1989 a rock fisherman had been swept from the rocks into the sea and was still missing. In a report of injury form completed by the plaintiff on 16 March 1989 he said that this is what occurred:

"Constable First Class Anderson along with two other TRG Police were performing a search for a rock fisherman who when missing on Sunday 12/03/89. about 1 kilometre from the Green Cape Lighthouse whilst searching the rock area, a large wave crashed over the rocks and washed Constable First Class Anderson and the other two police over."

The injuries recorded are these; "Bruising and abrasions to the right knee and shin. Strained muscles to right shoulder and neck". The plaintiff attended upon Dr Nelson probably at the local hospital. Exhibit U is a certificate of Dr Nelson asserting the plaintiff as being unfit between 13 March 1989 and 14 March 1989 on account of "Soft tissue injuries, right shin, right knee, right shoulder, right periscapular". The plaintiff told me that he was washed off the rocks and then thrown repeatedly against the rocks by the large waves, and had bruises and abrasions all over his body including, he recollected, his buttocks. I wholly accept that that event occurred and that the plaintiff did suffer some soft tissue injuries to his right knee and right shin, but they may only have been abrasions rather than the sort of injury causing internal derangement of the knee. Such injuries usually involving twisting.

Transfer to Wetherill Park

On 18 August 1991 the plaintiff was transferred from the TRG to Wetherill Park Police Station. The plaintiff told me that the TRG was being disbanded and being replaced by the SPG. The significant thing about that was that the SPG was only going to comprise 25 members and therefore that 75 former TRG members would not be appointed to the SPG. The plaintiff elected not to seek to be appointed to the SPG, and the reason he made that decision was because he did not believe that his right knee in particular was adequate enough to survive the testing required for joining the SPG and by inference, the activities which the testing required the plaintiff to perform had he joined the SPG.
There is corroborative evidence for the plaintiff’s having problems with his knee at least during the period that he was a member of the SPG. As I said, Mr Holloman gave evidence he was attested as a member of the New South Wales Police Force in 1972. He retired in April 2002 having served the State for approximately 40 years. He first met the plaintiff when he started as a probationary constable at Parramatta in 1983. Mr Holloman was in fact a team leader in the TRG. Mr Holloman told me that the plaintiff was quite fit and needed to be so in the TRG and that the maintenance of fitness was something that at least he was quite "strict" about. He deposed to knowing that the plaintiff had trouble with his knees between 1988 and 1991. He told me that he knew, no doubt from the complaints made by the plaintiff, that he was suffering pains in his knees especially when performing the necessary 5 kilometre runs.

The plaintiff started dating the lady who became his former wife in 1987, that is, they started dating before the plaintiff joined the TRG. They married in 1990 but separated in 2003 and were divorced in 2010. The plaintiff's former wife is Ms Lisa Jane Waters. She was aware that for most of the time that they were together the plaintiff was having problems with at least one of his knees. That period of time encompassed the plaintiff's period of service with the TRG. I mentioned corroboration because certain parts of the plaintiff's evidence are unreliable. For example, the plaintiff found it difficult to answer question regarding the report of injury form for the event of 1 March 1984, which was tendered in the defendant's case as exhibit 1, that is, the report of injury form executed by the plaintiff on 10 March 1984. He agreed that no mention was made in that document about his knees but denied that was not because he did not injure his right knee. He also denied that the omission was because the knee injury was only minor. He also would not agree with counsel for the defendant that there was no mention of a knee injury in the document of 10 March 1984 because his knee was not "bad" at that time. He found it difficult to deal with questions which inferred that if the right knee had been a real problem following the event of 1 March 1984 that he would have included it in the document of 10 March 1984. Considering what he did include in the report of injury form and considering the nature of the document itself, I am confident that if the plaintiff had injured his right knee he would have inserted that in the document himself. He did not and there is no corroborative evidence of any injury to the right knee at that time.
The plaintiff was then cross examined about the report of Dr Collins of 7 May 1986. The plaintiff denied telling the doctor that he injured his right knee playing football. The plaintiff did give the doctor that history. The plaintiff also had put to him that he made no mention of any injury to his knee in a motor vehicle accident to Dr Collins, but he denied that proposition. In other words, he was positively asserting that he did tell Dr Collins about injuring at least his right knee in a motor vehicle accident, but that is not contained in the report at all. These and some other matters have led me to the view that some of what the plaintiff has said is unreliable.
I return to the plaintiff's work at Wetherill Park. The first thing to note is that on 25 November 1992, some 15 months after his transfer to Wetherill Park, the plaintiff was appointed a senior constable. He was then 29 years old. The plaintiff told me that he had an understanding with the then Patrol Commander, Inspector Kent Bilde, that he would act as the patrol education officer. That position had the unfortunate acronym of PEDO, which probably stands for Patrol Education Development Officer. Indeed, the plaintiff told me, and was not challenged, that at the time of the disbandment of the TRG and when officers were being considered for appointment to SPG, that he was approached by Superintendent Bill Galvin, who asked him what his intentions were, and offered him the job at Wetherill Park Police Station with the rank of senior constable. That is what actually occurred.
Wetherill Park police patrol was known at the time as a "patrol of excellence", or as it was described by Leading Senior Constable Dean Anthony Pearce as a "training station". According to the plaintiff, the Wetherill Park Patrol was a buffer between the Police Academy and the performance of general duties by probationary constables during their first 12 weeks of service. Each training station appointed a "buddy" with expertise to monitor the recently appointed probationary constables. The plaintiff told me that there were ten such stations in the Sydney metropolitan area. The plaintiff did not refer to himself as being one of the "buddies": that was a terminology used by Leading Senior Constable Pearce. However, what he said was consistent with what the plaintiff himself said. According to exhibit 2, a document headed "Particulars of periods of relief on higher rank", the plaintiff first worked as the PEDO on 8 November 1992; however, the plaintiff was not challenged to suggest that he was not made the PEDO when he was initially transferred to Wetherill Park on 18 August 1991. Indeed, it is quite possible that the form, exhibit 2, only came into use in late 1992. However, the plaintiff was not appointed a senior constable until November 1992, about the time exhibit 2 commences to record the plaintiff's acting at a higher rank.
Exhibit 2 shows the plaintiff's working fairly consistently as the PEDO. The first period is between 8 November 1992 and 31 December 1992. The second period is between 15 January 1993 and 16 January 1993. There was also a period between 22 February 1993 and 26 February 1993, and regular periods throughout the remainder of 1993, and during 1994. In 1995, between 1 February 1995 and 10 April 1995, and then from 11 April 1995 to 15 July 1995. The plaintiff told me that in 1995 a sergeant was appointed to be the permanent education officer at the Wetherill Park patrol, hence he was no longer working as the PEDO. However, exhibit 2 records that thereafter the plaintiff often worked as a "supervisor", sometimes as "beat supervisor" and sometimes as "shift supervisor".
The role of a supervisor is generally filled by a sergeant. When a sergeant is not available to perform the role an experienced senior constable is generally appointed as a supervisor. That senior constable is generally the most senior constable in the police patrol. A beat supervisor is the supervisor in charge of the general duties police assigned to doing "beat duties"; that is, walking the streets of the suburbs, in particular the shopping strips and the shopping areas and the like, and schools and other places where sometimes mischief occurs, where it is politically convenient for police officers to be seen. A shift supervisor is the senior office in the police station during any particular shift. When the plaintiff was a shift supervisor he not only supervised the general duties police but also the highway patrol, beat police, bike police and any other units attached to the Wetherill Park Patrol. He pointed out that in the absence of an officer being on duty he was as shift supervisor in charge of all units of patrol.

Event of 15 July 1993

Exhibit 2 indicates the plaintiff working regularly as a supervisor between 27 August 1995 and 5 May 1996. During his work at Wetherill Park Police Station the plaintiff sustained a further injury. On this occasion the plaintiff's injury was to his left knee. The event occurred on Thursday 15 July 1993. The description of the event given in exhibit D is this:

"About 11.45am I, with Detective McNamara from the Major Crime Squad, and two defendants went to the Wetherill Park Holding Yard, so that two car bodies can be inspected under the criteria of a Form 1. When leaving the yard the gate became stuck in the mud.
As I pushed the gate to close it I lost my footing in the mud, causing my left knee to twist. I immediately experienced a sharp pain in my knee."

In oral evidence the plaintiff told me that he "did the splits". In addition to injuring his left knee, also sustained a left inguinal hernia. The plaintiff told me he was off work for four or five weeks, but that period of incapacity appears to be mainly dictated by the need to undergo a herniorrhaphy. The surprising thing is that the plaintiff's claim for hurt on duty benefits for the events of 15 July 1993, a document made by the plaintiff on 4 August 1993, does not refer to the hernia at all; it refers only to the knee. The document says that the plaintiff was treated by Dr V Koleda.

According to the claim for hurt on duty benefits, the plaintiff had a long consultation with Dr Koleda on 19 July 1993 and a standard consultation on 20 July 1993. The claim for hurt on duty benefits says that the nature of the injury was "tear to the left medial ligament in knee". The plaintiff is likely to have obtained that diagnosis from Dr Koleda. Exhibit V is a certificate from Dr Victor Koleda of Smithfield who certified the plaintiff as fit for "suitable duties" from 19 July 1993 to 26 July 1993. The certificate gives as a diagnosis, "medial ligament tear left knee", hence the diagnosis inserted by the plaintiff is claim for hurt of duty benefits. The certificate also states that the plaintiff needed to undergo X ray. Whether any X rays were performed at the time I do not know, but they have not been put before me. I assume that by "medial ligament" Dr Koleda was referring to the medial collateral ligament. It is clear that after the restricted duties for which the plaintiff was certified by Dr Koleda, there was a further period of incapacity due to the need for the herniorrhaphy. The restriction placed on the plaintiff by Dr Koleda was "no prolonged standing". The plaintiff's position as either PEDO or a senior constable doing general duties is not such that he was required to do prolonged standing, such as standing for hours directing traffic in the event of failure of traffic control lights. Such work is generally done by probationary constables if they are available or, if not, by constables.

New Management

The plaintiff worked on. At some stage in 1995, perhaps or perhaps in 1996, Inspector Bilde retired and was replaced by Chief Inspector Honeysett. Chief Inspector Honeysett was assisted by Inspector McFadden who was the staff officer at (Personnel). According to the plaintiff, he was told Chief Inspector Honeysett that he would no longer be given the job as the PEDO and that under the anticorruption policy adopted by the New South Wales Police Force he would have to be transferred to another patrol after five years of service at Wetherill Park, and he would be transferred to either Blacktown or Cabramatta, which were the other major patrols in the Prospect District. The requirement to give up the job as PEDO with the arrival of the sergeant permanently appointed to that role can be roughly dated, using exhibit 2, to July 1995. That may be when Chief Inspector Honeysett took over. However, what ought be clear to the plaintiff is that having been appointed to Wetherill Park on 18 August 1991 he would need to be transferred in August or September 1996 to another patrol in his district; that is, to either Blacktown or Cabramatta. Faced with such a transfer, the plaintiff was concerned to broaden his experience in the patrol with a view to seeking transfer.
On 22 June 1995 the plaintiff sought a transfer within the Wetherill Park patrol from general duties to beat policing. His application said this:

"I wish to make application for transfer to the Beat Unit as [i] see that as an area where I may further my career. In addition I would be able to continue my involvement with probationary constables at a different level. I wish to seek transfer to the Northern Rivers district and I feel with the experience in the Beat Unit this will enhance my chances."

That application was approved by Inspector McFadden and took effect on 2 July 1995.

The plaintiff made a further transfer application on 31 October 1995. That was from the Wetherill Park patrol to the Tweed Heads patrol in the Northern Rivers district of the North Region of this State. The reason for the transfer given by the plaintiff was this:

"I was attested in November 1983 as a probationary constable attached to the Parramatta Patrol. Since that time I have performed uniform duty at Parramatta, Ermington, Granville and Wetherill Park. I also performed fulltime duty with the North West TRG. I also spent time in plain clothes with the H District Anti Theft [Squad]. I have performed my duties with the utmost professionalism and dedication to all sections whilst being attached [there]. During my general duties/beat I have been fully involved with the Training of both Probationary Constables and other members of staff. I have completed the recommended tenure at each section I was attached to. On a personal note, by wife is very keen to relocate to the Tweed Heads area as she has relatives and close friends that reside [there]. I am at the present time in the process of buying a property there. I would conclude that I would be an asset to any Patrol in the Tweed Heads area with my experience and commitment to the service."

That application as approved by an acting patrol commander at Wetherill Park on 1 November 1995. It was approved by the North West Region, that is, the region in metropolitan Sydney which included the Prospect District, on 8 November 1995. He was also approved by the North Region, that is the region in which the Tweed Heads District was, on 9 November 1995. However, it was no recommended on 6 December 1995 by the North Region because it appears that there was no vacancy at the time. The transfer form has a notation of no vacancies made by the HRAC (human resources advisory committee) on 27 December 1995 and 8 January 1996.

On 20 March 1996 Inspector McFadden sent a note to the patrol commander at Wetherill Park which contains this matter, "The application as discussed at the Human Resources Advisory Committee (HRAC) meeting on 18 March 1996 and was subsequently rejected on the grounds of ‘no vacancy’. Inspector McFadden noted that memorandum should be noted by the plaintiff, and it was so noted by him on 28 March 1996. It was then passed to the Patrol Commander at Wetherill Park who noted it on 29 March 1996 and by the District Commander at Prospect on 1 April 1996. It can be seen therefore that the North West Region was initially happy to take the plaintiff on, but there was no relevant vacancy, thus denying the plaintiff's request to move to the Northern Rivers, a very popular place amongst many sections of the police force.
There are a number of matters concerning that application which raise issues of credit. The plaintiff told me about making an application to go to Byron Bay. He told me that an approach had been made to him by somebody from that area, but that his transfer to Byron Bay was "blocked" by Blacktown, which appears to be the centre of the local District. The plaintiff told me that he was told that orally and that the local District did not want to lose his expertise. However, it is clear that the transfer was not blocked by the local District. The transfer did not take place because there was no vacancy. Indeed, the documentary evidence before me indicates that between 9 November 1995 and 18 March 1996, a period of some four months, the plaintiff was actively being considered for transfer to the Tweed Heads Patrol but there was no relevant vacancy.
In cross examination when asked about the request that he transfer to Tweed Heads or Byron Bay the plaintiff said that he had been asked by a senior sergeant at Tweed Heads to make an application to be the PEDO at Byron Bay, but this may have been merely a suggestion by another police officer who worked in the northern rivers area. I do not know whether Byron Bay was then part of the Tweed Heads Patrol. I know that the Tweed Heads patrol has at all material times controlled Kingscliff, another area mentioned by the plaintiff in his evidence. It would appear that there was no formal request by anybody with a requisite authority for the plaintiff to be transferred to Tweed Heads or Byron Bay, but it is clear that the plaintiff's explanation for why the transfer did not occur cannot be accepted as accurate.

Resignation

In any event, the plaintiff was still at the Wetherill Park patrol when he submitted his resignation. His form of resignation is exhibit 5. The relevant part of it says only this:

"I wish to submit my resignation from the New South Wales police service. My last day of duty being 25 June 1996. I would like all moneys owing to me to be credited to my Police Credit Union account."

The resignation bears the date 18 June 1996. It was approved by Inspector McFadden on 20 June 1996 and approved by the District Commander on 25 June 1996, whose approval was required to shorten the period of notice such that the plaintiff could in fact have as his last day of active service 25 June 1996.

Antecedent to the plaintiff’s submitting his resignation was an interview, albeit a brief one, with Chief Inspector Honeysett and Inspector McFadden. In exhibit 6 a letter that was probably sent in early April 1998 the plaintiff said this:

"On the day I went to see my then patrol commander, Chief Inspector Honeysett, and Personnel Inspector McFadden, to talk about my future within the Service and the job opportunity I had been offered within the private sector. I was totally brushed aside with the reply, 'Do what you want to do'. I really thought that both inspectors would at least have given me five minutes of their time, to go over what was, the most important decision I had to make in my life."

It is clear from what the plaintiff there said that he had had a job offer which he was considering taking up. He went to discuss what he sought to with those in charge of him and was dealt with abruptly, if not discourteously.

The job which the plaintiff took up after leaving the police service on 25 June 1996 was as a security manager for Brambles Armoured. That organisation had a large number of armoured vehicles which were used to transport cash between banks and businesses. What the security manager of that organisation might do is fairly self-evident. According to the chronology provided to me by the plaintiff's counsel, the plaintiff took up that work in June 1996. Since the plaintiff left the police service on 25 June 1996 it is likely that he walked straight into his new job with Brambles. That is consistent with his having the job offer that he wished to discuss with Chief Inspector Honeysett and Inspector McFadden. The plaintiff worked for Brambles until it was taken over by Chubb. He did that work until 2002 when he obtained employment with the Northern Sydney Central Coast Health Service as a security manager.
The plaintiff has remained a public servant in the health sector since that time. His most recent appointment is as the "Manager Technical Support and Sustainability" with the Northern Sydney Local Health District. I understand the plaintiff to have been based at all material times at the Royal North Shore Hospital. Indeed, since 10 February 2004 the plaintiff has been using the staff general practice at the Royal North Shore Hospital as his general practice for any ailment that he might have.

Subsequent medical history

The last piece of medical evidence that I have concerning the plaintiff prior to his resignation from the police service is the certificate of Dr Koleda of 20 July 1993. The next piece of medical evidence before me are the notes of the staff general practice at the Royal North Shore Hospital which commence on 10 February 2004. The note recorded on 10 February 2004 was made by Dr Robin Hughes, The diagnosis provided was "patellar femoral syndrome", which is a diagnosis of some condition affecting both the kneecap and the femur. However, the doctor's notes do not state which side of the body was involved. The next note in the staff general practice records was again one made by Dr Robin Hughes. The same diagnosis is provided. However, on the same date Dr Hughes wrote a referral to Dr Andrew Ellis, an orthopaedic surgeon whose practice is at Royal North Shore Hospital. The referral letter is exhibit W. It provides a past history of arthroscopy and medial meniscectomy on the right side. The note then continues thus:

"Late in July 2003 he was playing touch football and twisted right knee. He has had physio, et cetera, but still is having problems. On examination, tender medial joint line. Patellofemoral rating plus, plus, plus. Anterior cruciate ligament feels a bit loose."

Clearly Dr Hughes obtained a history that in July 2003 when the plaintiff was playing touch football, he twisted his right knee and had been symptomatic since that time.

The plaintiff saw Dr Andrew Ellis on 18 October 2004. Dr Ellis' history is this:

"Now aged 41 and a security manger of this campus, Scott has been troubled by worsening right knee pain for about 12 months. He found that his right knee gave way whilst playing touch football about 12 months ago and was reinjured a month later when he lurched forward to attend to his daughter who had just shot forward on a motorbike. The knee swelled and was painful, and subsequently he had some physiotherapy, but this was not of much benefit. From time to time the knee has become sorer and one or two weeks ago it became more sore, and this precipitated today's consultation.
Scott used to be very active and finds that with his right knee he cannot run and has a constant, activity exacerbated, medial knee pain which is sometimes associated with a moderate nocturnal disturbance.
In 1985 he had an arthroscopy performed on his right knee with good result. He also tells me that his right knee used to commonly dislocate prior to this and that he always had a degree of patellofemoral crepitus. Interestingly, it made his work as a policeman a little difficult as the patellofemoral crepitus would often give away his position during quiet surveillance!
He has had episodic apprehension of giving way and intermittent swelling of the knee from time to time."

Dr Ellis arranged for the plaintiff to have an MRI scan of his right knee. That was performed on 22 October 2004 and was reported by Dr Mary Moss thus:

"Tear involving the posterior horn and body of the medial meniscus. Chrondromalacia and underlying subchondral marrow change involving the patellar articular cartilage. Mild lateral subluxation of both patellae."

It is clear that Dr Moss carried out both a CT scan as well as an MRI scan of the right knee. There is no suggestion that she carried out any radiological investigation of the left knee. What led the doctor to conclude that there was "mild subluxation of both patellae" is unclear, but that may have been merely her physical observation of the plaintiff's knees. However, commonly patients only see a radiographer who carries out the procedure and the radiologist merely comments on the investigation. I will take the reference to the subluxation of the patellae as being confined to the right hand side.
The plaintiff went to see Dr Ellis on 1 November 2004 after that procedure had been carried out. It is clear that there was a long discussion about treatment options. The treatment preferred by Dr Ellis reads as if it is quite involved. Near the end of the report the doctor said this, "It is not convenient for him to consider such surgery at this time, and in the interval he will maintain a fitness program which may give symptomatic relief". The plaintiff returned to the staff general practice on 3 January 2006, 19 May 2006 and 30 October 2007 about completely unrelated matters. He consulted Dr Janine Kirkwood at that practice on 4 January 2010 and was given a further referral to Dr Ellis. The referral letter is part of exhibit Z. That letter records that the plaintiff had a feeling of his right knee giving way.
Prior to seeing Dr Ellis on 29 September 2010 a MRI scan of the plaintiff's right knee was performed by Dr Tim Harrington. His comment is this:

"Apparent radial tear of the medial meniscus to its perimeter. Moderate cartilage loss in the medial compartment. Moderate cartilage loss in the lateral facet of the patella."

Dr Ellis' report of 29 September 2010 gives a very brief history. It records the motor vehicle accident of 1 March 1984, erroneously assigning it to the year 1985, and of that leading to the arthroscopy of 13 May 1986. However, as I have previously found, the two do not appear to be related. It then records a history of the plaintiff's right knee giving way whilst playing touch football in 2003 and of the treatment afforded by Dr Ellis in 2004.

The history then continues thus:

"Since then Scott has been very busy in his job as senior manager for Royal North Shore Hospital with responsibilities in the Area for security. He finds that the right knee become stiff and seizes up but is improved by walking and using the treadmill. There have not
been any episodes of dislocation but there have been episodes of giving way if he needs to move his knee or twist sideways. There is a degree of swelling which seems worse over the winter months. In general, he sleeps well. He does develop an ache in the knee after gardening. He is very active, walking up to 7 kilometres or 40 minutes five times a week. He is still playing golf but finds that he cannot adopt a very comfortable position to hit the ball due to knee discomfort."

On this occasion, the plaintiff underwent arthroscopy. That was performed on 13 December 2010. The relevant findings are of a degenerative tear of the posterior horn of the medial meniscus extending to the periphery of the junction of the mid and posterior third of that meniscus. There was Grade IV osteoarthritis which was very patchy underlying that earlier pathology. There were degenerative changes in the medial femoral condyle, the trochlea area and degenerative changes in the facet of the patellar fibrillation.

The plaintiff was reviewed by Dr Ellis on 13 December 2010. The doctor then described his operative treatment as "a partial medial meniscectomy". The plaintiff saw Dr Ellis in the six weeks after the surgery. The doctor said this:

"He feels a good treatment benefit from surgery, feels the knee is strong. He has been in the surf a couple of times and walking across the beach, and been back at work without discomfort. He has an awareness of recent surgery only."

Dr Ellis discharged the plaintiff to the general practitioner's care.

The plaintiff next saw Dr Ellis on 1 June 2011. The only reference in the general practitioners of a referral prior to that time was on 17 January 2011. It would appear that the plaintiff was being re examined by Dr Ellis about six months after his earlier surgery. The history given by the plaintiff to Dr Ellis is this:

"The left knee was injured while surfing two weeks ago and symptoms very similar to the right have developed. He was hit by a
heavy wave and suffered extreme agony and 'near drowned'. He means that he fell into the water and had difficulty getting out and walking off the beach due to knee pain. This gradually settled but he has persistent soreness and a large effusion."

The plaintiff told me that that event happened at Maroubra Beach. He told me that he had gone to Maroubra Beach to watch his daughter play beach volley ball and decided to take a swim, but was knocked over by a wave and had to be rescued by some young nearby surfers.

Those complaints about the left knee led to a left sided arthroscopy being performed on 20 June 2011 by Dr Ellis. In his operation report Dr Ellis provides this diagnosis, "Parrot’s beak tear of the posterior third of the medial meniscus left knee". The operation performed was "left knee arthroscopic surgery with partial medial meniscectomy and debridement". The one thing that needs to be noted from the detailed operative findings is this:

"There was a change in the medial compartment with a significant parrot beak tear of the medial meniscus of some duration. The edges were rounded and the tear extended right back to the periphery" [my emphasis].

Two weeks prior to 1 June means mid May. The surgery was performed on 20 June so that the surfing injury occurred about five weeks before the arthroscopy. The words "of some duration" are inapt in my experience and view of medical evidence to refer to something happening as recently as five weeks prior. The words "of some duration" appear to indicate that the tear was at least partially longstanding.

[8 MARCH 2019]

After the left medial meniscectomy, the plaintiff saw Dr Ellis again on 9 August 2011. At that time, Dr Ellis expressed the view that the plaintiff's left knee would "gradually wear out", and there was clearly a discussion about the need in the future for total knee replacement. Dr Ellis pointed out that the plaintiff was still a relatively young man and he, the doctor, advised the plaintiff about watching his weight and doing gentle exercise in order to maintain his natural knee for as long as possible.

Dr Patrick – 2 October 2010

The remaining medical evidence before me is all medico legal. Prior to the arthroscopy on the right knee, practiced on 13 December 2010, the plaintiff was seen by Dr WGD Patrick, a general surgeon, at the request of his solicitors on 2 September 2010. One will recall that that was the day on which Dr Harrington performed the MRI scan of the plaintiff's right knee. Dr Patrick wrote his report on 16 September 2010 and clearly had Dr Harrington's MRI scan, or the report of it, before him when writing his report. Dr Patrick took a history from the plaintiff that he resigned from the Police Force on 25 June 1996 "because he was no longer capable of performing the work required of him as a police officer". That is clearly what the plaintiff told the doctor. As it appears on the first page of his report, it is clearly on piece of history rather than the doctor's opinion. The doctor also took a history that the plaintiff had been, between 1989 and 1991, a member of the TRG. However, the initial date was incorrect. The plaintiff, in fact, joined the TRG in 1988. The doctor also took a history that the plaintiff did not join the SPG "because he knew he would not be capable of passing the physical". The doctor then took a history of the plaintiff's working at Wetherill Park between 1991 and 1996. The relevant part of the history is this:

"During this period, he was doing mainly station work. He had a good boss at the time. His work involved training probationary constables who had come from the Academy. He would be looking after between ten and 12 probationary constables for a period of 12 weeks turning their theoretical knowledge into practical knowledge and experience.
By this time, he was severely restricted in what he was capable of doing. He was literally unable to carry out the usual activities involved in general duties police work. He was not able to chase and possibly wrestle with offenders, jump fences, or get into or out of police vehicles quickly. He was not able to carry out his full duties as a consequence of his work/service related injuries at that stage, and was put into the charge room, supervising constables prior to his resignation on 25 June 1996."

That is not a history which the plaintiff told me. He told me about being the PEDO and of being a shift supervisor and a beat supervisor and to doing general duty work, albeit that he found difficulty getting in and out of motor vehicles.

The doctor then outlined three injuries of which he had been informed. The first was the motor vehicle accident of 1 March 1984. According to the history taken by Dr Patrick, the plaintiff sustained "direct trauma to his right knee" which is, of course, a finding I could not make on documents that I have read. According to the doctor's history, the plaintiff's knees collided with the dashboard of the vehicle which he was driving, hurting mainly the right knee. The doctor went on to say, "and probably also sustaining some neck injury". The evidence is that the plaintiff did, indeed, suffer a neck injury, but there is no contemporaneous evidence of any injury to either of the plaintiff's knees. I should point out that if knees collide with a structure in the vehicle such as the dashboard, one might expect trauma to the patellae, soft tissue injuries, but not the sort of injury which leads to mechanical problems within the knee which is generally caused by twisting or overloading. This is a point which is made by another medical practitioner.
The second injury of which the doctor took a history was the event that occurred at the Tamworth Country Music Festival in 1989. The doctor has this history "As he was chasing the offender, he twisted the right knee, and fell. He was subsequently involved in a big punch up not of his own making". Whether the plaintiff actually twisted his right knee, at that time, I do not know because there is no contemporaneous medical evidence. The third event which the doctor took a history was one in "1995", but from the description of the event given, it is clearly a reference to the event which actually occurred on 15 July 1993. We do know from contemporaneous documents that in that event the plaintiff injured his left knee, but according to the history given by the plaintiff to Dr Patrick, he, in fact, injured his right knee.
The doctor said this about the state of the plaintiff's knee after his resignation:

"There has been gradual further deterioration with his right knee with episodes of increasing pain and the knee giving way. There was one such episode in 2004 when the right knee gave way and he was seen by experienced orthopaedic surgeon, Dr Andrew Ellis."

Either the plaintiff or Dr Patrick may have been referring to the history given by the plaintiff so Dr Ellis as recorded by him in his report of 18 October 2004. At that time, the plaintiff gave a history of a right knee injury playing touch football about one year prior to 18 October 2004.

The plaintiff told the doctor that he had become mildly "bow legged". That issue needs to be explored a little further. I shall do so. The plaintiff told the doctor that he now had symptoms in both his knees, but that his right knee was significantly worse than the left knee. Surprisingly - and I use that adverb deliberately - Dr Patrick did not make any inquiry as to when the plaintiff's left knee became symptomatic or the extent of the left knee symptoms. He concentrated only on the right knee because that was the only history of injury that the plaintiff gave him and appears to be the subject of his report, that is the right knee only.
On examination of the plaintiff's right knee, he found 2 degrees of varus alignment of the right knee and 2 degrees valgus alignment of the left knee. In other words, the right knee was bow legged, but the left knee was a knock-kneed. In other words, both the plaintiff's knees were pointing in the same direction, towards the right. However, I hazard the observation that the doctor, when he refers to the left knee, being "2 degrees valgus", in fact, meant 2 degrees varus which would tie in with the plaintiff's own description of being bow legged. What makes that even more curious is that when the plaintiff was re examined by Dr Patrick on 30 September 2014, over four years later, the doctor said this:

"Scott Anderson has a very relevant 2 degrees varus alignment right knee and 1 degree varus left knee, with the left knee deteriorating since my initial examination of him in September 2010."

If, in 2010, the plaintiff's left knee was 2 degrees valgus, for it now to be 1 degree varus is quite extraordinary. However, if, initially, the left knee was 2 degrees varus, there had been improvement in it since the lass examination. I am afraid the doctor's findings make little sense.

Dr Patrick noted a mildly antalgic gait with a slight limp sparing the right limb. He found a small effusion on the right side, but none on the left. He found some muscle wasting in the right thigh compared to the left. He thought that the right thigh measured 53 centimetres and the left thigh measured 55 centimetres, 10 centimetres above the kneecap. Thighs are generally of the same width, unless, for example, one is a regular user of a "dominant" leg, such as, for example, a person who plays rugby professionally and kicks with his right leg.
The first opinion expressed by Dr Patrick was that the plaintiff "presents as genuine". He repeated that later in his opinion. That might be the doctor's opinion and the plaintiff presented to me as a plausible fellow, however, as I have already pointed out in these reasons, the plaintiff may be an unreliable historian. The doctor went on to point out the plaintiff had "significant” posttraumatic osteoarthritic change of the right knee, with early osteoarthritic change of the left knee", and the doctor went on to say that the condition of the plaintiff's knees was "substantially contributed to" by the plaintiff's duties as a New South Wales police officer. It is unclear whether the doctor wanted to suggest that the left knee condition was posttraumatic. He does not say so and that is probably because he obtained no history of trauma to the left knee. The right knee clearly was the subject of osteoarthritic change at the time of the arthrogram referred to by Dr Barry Collins in his report of 7 May 1986, but the only trauma of which that doctor took history which may have precipitated the osteoarthritis, was a football injury. Dr Patrick went on to express this view:

"With the history and sequence of events as given, supported by findings on physical examination and imaging studies, I do believe that Mr Scott Anderson was clearly incapacitated to perform the duties of his office of a NSW Police Officer at the at the time of his resignation on 25 June 1996, largely as a consequence of his right knee injuries and significant pathology. I do believe he was incapacitated to perform the work of a general duties police officer and the duties that he was performing at the time of his resignation. I believe that, as at 25 June 1996, he was incapable from an infirmity of body or mind (right knee pathology) of personally exercising of the functions of a New South Wales police officer, including the functions of a general duties police officer."

That is in effect an ipse dixit. The problem with the ipse dixit is that doctor did not address the correct legal issue, but that is understandable, he is not a lawyer. The question to be asked is whether, at the time of his resignation, the plaintiff was incapable, from infirmity of body, of personally exercising the functions of his office, not the functions of a "general duties police officer".

In any event, the doctor does not explain why he merely refers to "significant pathology". He does not say that the plaintiff's knee must have been osteoarthritic at the time of his resignation. He appears to relate ongoing problems in the plaintiff's right knee to the motor vehicle accident of 1 March 1984 because he says that the osteoarthritis of the right knee was "posttraumatic". It was posttraumatic, but according to the history obtained by Dr Collins, the trauma was a football injury.
In a subsequent opinion of 1 August 2011, Dr Patrick expressed the view that the plaintiff had a 27% permanent loss of efficient use of his right leg at or above the knee, no doubt, to support a claim for a gratuity pursuant to s 12D of the Act, the gratuity being equivalent to a claim for lump sum compensation under s 66 of the Workers Compensation Act 1987 as it was in force at the time of the plaintiff's resignation from the Police Service. A finding of 27% loss of efficient use of the right les at or above the knee would also result in an entitlement to a lump sum under s 67 of the Workers Compensation Act 1987 which is also recoverable under s 12E, and so it came to pass.

Two applications by plaintiff

I reiterate what I said at the beginning of these reasons that the plaintiff made an application to the defendant under s 10B(2) that application being received by the defendant on 1 December 2011. He also made a claim under s 12D of the Act on 2 December 2011. His claim under s 10B(2) is exhibit 9 and his claim under s 12D is exhibit H. In his claim under s 10B(2), the plaintiff relied on right knee injuries occurring on 11 April 1984, 13 March 1989 and an unspecified date in 1995 which appears to be referable to the event of 15 July 1993. The plaintiff also relied on injuries to his left knee on 1 March 1984 and on 15 July 1993. The only details given for each of these injuries is "see police medical file". In the claim under s 12D, the plaintiff only referred to the injury of 1 March 1984, the event of 18 March 1989 and the event "1995" which was clearly a reference to the event of 15 July 1993. He also relied upon the "nature and conditions of employment" which is the language incorrectly adopted by many lawyers to refer to the type of work which the plaintiff did whilst he was a member of the NSW Police Force. "Nature and conditions of employment" is not a term of art in the law as I have been pointing out in judgments that I commenced to deliver in 1994. The claim for the s 12D gratuity was supported by the report of Dr Patrick, of 16 September 2010 and probably also by his subsequent opinion of 1 August 2011. It was also supported by a statement made by the plaintiff on 2 November 2011 which is exhibit J. In that statement the plaintiff clearly believed that the event which happened in the holding yard at the Wetherill Park Police Station occurred in 1995. The plaintiff also refers to the event at the Tamworth Country Music Festival in January 1989, but not to the event at Eden on 13 March 1989, an event about which he clearly had forgotten at that time. In describing the motor vehicle accident of 1 March 1984, the plaintiff referred to his "legs" and, in particular, his "right knee". He said that he never recovered from the motor vehicle accident. In the Tamworth Country Music Festival event, the plaintiff said he injured "my knee". He doesn't specify which one. However, the only actual knee identified in the preceding paragraphs of the statement was the right knee. Again, the event in the holding yard at the Wetherill Police Station, there is a reference to the plaintiff's "knee" giving way without the knee in question being specified.

Dr Maxwell – 21 May 2012

I turn to the report of Dr Maxwell who was qualified by the defendant after the plaintiff made his claims upon it. Dr Maxwell examined the plaintiff on 21 May 2012 after the two arthroscopies practised by Dr Ellis. The plaintiff told Dr Maxwell that he was still walking for between 45 minutes and one hour regularly in order to maintain his fitness and to keep his weight down. He gave to Dr Maxwell this history about why he resigned:

"In 1996 he said his old boss resigned and he had a new boss. The Police Force commenced an anti corruption policy which meant he would have to move on to a different area. He said he had a disagreement with his new boss and resigned in 1996."

The doctor may have mistaken the history. There was no actual disagreement with Chief Inspector Honeysett, but rather Chief Inspector Honeysett did not give him any advice when he sought advice as to what he should do in the future, to take the job offer from Brambles or to stay in the police force. The plaintiff told Dr Maxwell that he had played Australian Rules, Rugby Union and Rugby League. The doctor has gone to record this history: "He alleges he had no injuries playing these sports". The plaintiff played rugby until 1993. He paid in the second row. The plaintiff told me that he did not complete playing rugby in the 1993 season. When one considers the event of 15 July 1993, which led to the inguinal hernia and the need for herniorrhaphy, one can understand that he may have given rugby away at that stage as would be unlikely to play rugby having a recent herniorrhaphy. There is also reference to the plaintiff giving away rugby at the time of the birth of his daughter and I do know that his daughter Jessica was born on 18 June 1993. However, Dr Collins did record a football injury three years prior to May 1986, an injury in 1983. It is, in fact, Dr Maxwell who obtained a history of the plaintiff's stopping playing rugby in 1993 "at the time of the birth of his daughter".

When the plaintiff joined the police force, his height was recorded as being 190.5 centimetres and his weight was recorded as being 103 kilos. The plaintiff is a well-built man and was clearly a well-built young man when he joined the police force at the age of 20. He would be a formidable opponent for most offenders. There are other references to the plaintiff's bodily habitus. In his first report of 16 September 2010, Dr Patrick recorded that the plaintiff was 191 centimetres tall and, in my view, there is no difference between 190.5 centimetres and 191 centimetres. Dr Patrick pointed out that in using imperial measurements the plaintiff was 6 foot and 3 inches tall. By 16 September 2010, the plaintiff's weight had increased to 128 kilos. Dr Maxwell thought the plaintiff was 193 centimetres tall, but I doubt the plaintiff would have gained 2 centimetres in height in a period of two years. However, his weight had fallen by that time and was 125 kilos.
Going back to the relevant part of the history, although it is not recorded by Dr Maxwell, the plaintiff had also played touch football. Although it is not recorded in the "relevant past history", part of Dr Maxwell's report, the plaintiff had been playing touch football in the "off season", when he was playing rugby and continued to play touch football until 2003 and, of course, that led to the event of which Dr Ellis had a history when he examined the plaintiff on 18 October 2004.
Dr Maxwell took a history of the motor vehicle accident of 1 March 1984 and that history included this:

"He said the front of the car was pushed back and the dashboard pressed in on his knees".

This is a history similar to that taken by Dr Patrick. Dr Maxwell's history about this event continues thus:

"He was taken to Westmead Hospital where he had X rays of different areas. He was told he had no fractures, but developed bruising to his legs. Subsequently, he said his right knee felt like it would 'give way'. He did swimming and he said his right knee remained uncomfortable and he was referred to orthopaedic surgeon, Dr Barry Collins, who operated on him about 12 to 18 months later aT Seven Hills Private Hospital. He said the operation helped for a while, but his knee was not 100%."

That history must be contrasted with the history that can be gleaned from the contemporaneous records. There is no nexus in the contemporary documents between the motor vehicle accident of 1 March 1984 and the surgery practised by Dr Collins in 1986. It is important to note that the plaintiff says that X rays were performed at the Westmead Hospital. If any X ray was made of either the plaintiff's knees, it has not been put before me, nor has its absence been explained.

The plaintiff went on to give Dr Maxwell a history of the event at the Tamworth Country Music Festival in 1989. He also gave the doctor a history of his right knee being treated at Tamworth Base Hospital. He then described an event in 1995 which is clearly a reference to the event of 15 July 1993, but, as he had told Dr Patrick, the plaintiff said he injured his right knee in that event, but when the plaintiff was asked about his left knee, the doctor recorded this history:

"He states his left knee has never been as bad as his right knee. He said his left knee spontaneously started to ache. He was vague about the exact time that his knee started to ache. He said his left knee started to give way. He went to Dr Ellis regarding his left knee and had an MRI scan. He was told he had a tear of the medial meniscus in the midsection and he had a left knee arthroscopy in April 2011. He states his left knee has been 'a bit better' since the arthroscopy."

Clearly, the plaintiff had forgotten that in the event of 15 July 1993, which he erroneously believed to be in 1995, he had injured his left knee. The plaintiff could not date his left knee problems back to that event, nor to the motor vehicle accident of 1 March 1984. However, it is clear from Dr Maxwell's history that when the plaintiff noted problems with his left knee, he went to see Dr Ellis about it and, of course, we know he saw Dr Ellis about his left knee on 1 June 2011 following an injury whilst surfing two weeks previously.

The inference to be drawn from the history given by the plaintiff to Dr Maxwell, as well as the inference to be drawn from the history given to Dr Ellis, the plaintiff’s left knee only became symptomatic as far as he could recall in about 2011.
The operative treatment afforded by Dr Ellis appears to have assisted the plaintiff. When the plaintiff saw Dr Maxwell, he had no wasting of his thigh. In fact, both thighs measured the same, 51 centimetres. The doctor noted no deformity of the knees, that is, he noted no genua vara or genua valga. There was a mild effusion on the right side, but there was no crepitus. There was also a "very mild effusion" on the left side, but on that side there was also no crepitus and, as on the right side, McMurray's test was negative and the ligaments were stable.
Dr Maxwell had available to him material which is material before this Court, but does not appear to have been provided to Dr Patrick or Associate Professor Nigel Hope, the other medical practitioner qualified by the plaintiff's solicitors. For example, Dr Maxwell had provided to him the plaintiff's claim for hurt on duty benefits for the left knee injury of 15 July 1993 and the certificate issued by Dr Victor Koleda. He also had the contemporaneous records for the motor vehicle accident of 1 March 1984 which referred only to a neck injury. He also had the report of Dr Barry Collins to Dr Purcell of 7 May 1986.
Dr Maxwell thought the plaintiff was suffering from "early medial compartment degenerative changes of both knees, the right worse than the left". The doctor thought that the problem in the right knee stemmed from a tear of the medial meniscus which had been present for three years prior to the plaintiff's seeing Dr Collins in 1986. He appears to agree with Dr Patrick that the osteoarthritis in the right knee was posttraumatic, that he ascribed to the trauma the plaintiff had sustained was playing football as documented by Dr Collins. As far as the motor vehicle accident was concerned, the doctor expressed the view that the mechanism of injury was unlikely to have caused any damage to the meniscus of either knee which is normally damaged by a twisting injury whilst walking or running.
The doctor did not believe that the plaintiff had any inability to perform the duties of his office at the time that he resigned because he was still playing touch football at that time and that indicated to Dr Maxwell "a fair level of fitness". This has led to a debate amongst the medical practitioners qualified in this case as to the significance of playing touch football. However, I do know that the plaintiff's right knee "gave way" whilst he was playing touch football sometime in 2003.

Dr Patrick – 30 September 2014

As I have earlier mentioned, Dr Patrick re examined the plaintiff on 30 September 2014. The doctor was told to "assume the facts as outlined in your [solicitors] paragraphs numbered 1 to 12 inclusive". Whatever those paragraphs were, they have not been put before me, but, clearly, they pointed out that the event of 15 July 1993 was an injury to the left knee, despite the plaintiff's earlier history to the other effect contained in the doctor's first report. In his second report, that of 4 March 2015, Dr Patrick said this:

"It appears that there had been at least three occasions of significant work/service related injuries to his right knee prior to 25 June 1996, these being the motor vehicle accident of 1984, the incident at Tamworth in 1989 (apparently no records), and particularly the episode of 13 March 1989 when there was significant direct trauma to his right knee as he slammed against rocks in the water at Eden."

The doctor went to point out that he did not have the operation report from Dr Collins, but the doctor does appear to have been aware that the plaintiff saw Dr Collins who operated on 13 May 1986. As far as the left knee was concerned, Dr Patrick's second report says this:

"It is my opinion that at the time of Scott Anderson's resignation from the police force on 25 June 1996, that he was suffering from a left knee infirmity, namely ongoing pain, varying in severity and lack of confidence in his left knee with some potential for giving way. This was largely as a consequence of his work/service related injury of 15 July 1993 when he was carrying out his duties at Wetherill Park Police Station and his left foot became stuck in mud while attempting to close a gate, such that he suffered a significant twisting injury to his left knee and experienced sharp pain to his knee and swelling. It is likely, at this time, the pathology sustained in the left knee was likely some medial meniscus tear and retro patella chondral damage and also some likely chondral damage of the medial compartment. The left knee infirmity consequent upon this significant pathology has been some ongoing intermittent pain, varying in severity and with intermittent limping and diminished confidence in his left knee."

The plaintiff himself did not tell me that since 15 July 1993, he had ongoing intermittent pain in his left knee, that he had intermittent limping on his left knee and diminished confidence in his left knee and that that persisted all the way through to the time that he presented to Dr Ellis with the left knee complaint. A little later in his report, Dr Patrick expressed himself thus:

"I do believe it is self evident that the left knee infirmity referred to above has, indeed, rendered Scott Anderson incapable of discharging his duties as a general duties police officers subsequent to 15 July 1993" [my emphasis]

If that matter be so "self evident", one wonders what I am doing in giving these reasons. Quite frankly, what the doctor says shows clearly that he is partisan. He has become an advocate rather than an independent medical specialist.

Associate Professor Hope – 25 September 2018

The other doctor qualified is, as I have earlier mentioned, Associate Professor Nigel Hope who is the Associate Professor of Orthopaedic Surgery at the University of Notre Dame at its Sydney campus. The Associate Professor commences his report with an "executive summary". It is this:

"This 55 year old police officer had no symptomatic pre existing pathology in the knee. Both knees were injured in a serious motor vehicle accident on 1 March 1984. The right knee was also injured in 1989 at work and the left knee was also injured in 1993 at work.
Due to the work related injuries, both knees required partial removal of the important medial meniscal shock absorber (meniscus). Two right knee arthroscopies were performed (1986 and 2010) and one left knee arthroscopy was performed in 2011. Inevitable osteoarthritis develops after partial removal of this shock absorber.
Today, 34 years after the injury, there is bilateral knee arthritic pain, stiffness, swelling, weakness, instability and giving way causing a moderate function loss. Examination shows a painful walking pattern with swelling, tenderness and stiffness in the knees. The MRI shows the previous medial meniscal tear. Bilateral knee osteoarthritis is the current diagnosis. This has resulted directly from work related injury."

However, the Associate Professor's report is not at all persuasive because the doctor relies on histories which are inaccurate and did not have available to him any contemporaneous medical evidence.

The Associate Professor was asked a number of questions. The ninth and tenth questions and answers are these:

"9. If question 6 is answered in the affirmative, did Mr Anderson's left knee infirmity render him incapable of discharging his specific duties of office, (ie supervision and training probationary constables and going on foot patrol with those constables into community), as at the date of his resignation from the NSWPF (on 25 June 1996)? Please explain your answer and provide reasons.
Yes - pain and mechanical symptoms in the left knee resulted in significant functional loss with the inability to pursue and apprehend offenders.
10. If question 6 is answered in the affirmative, did Mr Anderson's left knee infirmity render him incapable of discharging duties of a general duties police officer as at the date of his resignation from the NSWPF (on 25 June 1996)? Please explain your answer.
Yes - pain and mechanical symptoms in the left knee resulted in significant functional loss with the inability to pursue and apprehend offenders."

Whilst the answer to question 10 may be correct, the answer to question 9 is clearly incorrect because the doctor was asked to assume that the duties were the supervision of probationary constables and going on foot patrol with those constables into the community and did not ask him to assume that his work involved the pursuit and apprehension of offenders.

The doctor answered the same questions referable to the right knee in the same fashion. Associate Professor Hope did not agree with Dr Maxwell about touch football. The Associate Professor expressed this view:

"Demands of playing social touch football are much less than those required for a police officer. Pursuing and apprehending an offender cannot be compared to a social game of touch football."

The playing of touch football did not appear to be social, in the sense that it was just a group of friends having a lark in the park, but rather that this was a competition for mature people organised into teams playing each other. The plaintiff told me that he played on the wing which is a very odd place for anyone to play who had been a second rower and he described himself as not being a "nippy little halfback". One would hardly expect him to be that. The plaintiff may have been able to leave the field and be replaced by others at times and to enter the field when he felt able to do so. However, touch football does involve running and seeking to avoid a pursuer. There were strains on his knees as the history obtained by Dr Ellis on 18 October 2004 attests.

Associate Professor Hope also criticised Dr Maxwell's report as being "largely inconsistent with the facts". The Associate Professor ought not to have pressed such a view when he himself based his opinion on a history which may have been inconsistent with the facts. He also referred to a report from Dr Christie, however, no such report is before me. It is also referred to in the plaintiff's chronology as being a report made on 26 May 2017, however, it has not been put before me. I assume that that is Dr AJ Christie who is well known to me and I can also comfortably assume that it was commissioned by the defendant, but it has not been put into evidence. The only inference to be drawn from that is that it would not advance the defendant's case, that is, it would not have advanced the case beyond that put forward by Dr Maxwell.

Consideration

The plaintiff has the onus of proof. The plaintiff must persuade me that it is more probable than not that at the time that he resigned he was incapable of discharging the duties of his office. There are a number of implausibilities. The first implausibility is that I am asked to assume that the plaintiff was unable to carry on duties at the time that he resigned, duties which, on his own evidence and the evidence of his former wife, he liked very much and, on the evidence, in particular, of Leading Senior Constable Pearce he obviously enjoyed and was committed to.
However, there is no medical evidence before me between Dr Victor Koleda's certificate of 20 July 1993 and the records of the Royal North Shore Hospital Staff General Practice which commence on 10 February 2004, an absence of medical records for over a decade. What medical complaints the plaintiff may have had during that decade I do not know. He may not have had any. However, it is difficult to accept objectively that a man would give away a job which he liked because of an inability to do it and because of ongoing pain and discomfort, but not seek any medical attention for a period of about eight years.
The next piece of implausibility is that the plaintiff was, in fact, actively seeking transfers in 1996, in particular, the transfer to Tweed Heads which he asked for on 31 October 1995, but which he was told was not available to him on 28 March 1996. Although the plaintiff suggested that he is asked to apply in order to become the PEDO at Byron Bay, the application for transfer seeks the position of a general duties or beat police work at the Tweed Heads Patrol. The plaintiff did not mention any problem which would affect his carrying out his job as such at Tweed Heads. In fact, he gave himself an encomium. He said, "I would conclude that I would be an asset to any patrol in the Tweed Heads area with my experience and commitment to the service".
At the time that he resigned, he made no mention of any ongoing problems. He does not say that he mentioned any inability to carry out his work to either his patrol commander, Chief Inspector Honeysett or to the personnel officer, Inspector McFadden. It is clear that the plaintiff perceived that he would be transferred under the Anti-Corruption policy and would have to move to another patrol, Cabramatta or Blacktown. He was offered a job in the private sector and elected to take that rather than the transfer. There has been no averment, for example, that that led to economic loss, that he only had to take a job with a lesser salary because he could no longer do the work of a police officer because of the demands on his body. For all I know, the plaintiff may have been motivated to take the job in the private sector because it paid him more than his salary as a police officer. From having to decide many cases under s 10B(3)(a), it is clear that persons with the skills of a senior constable of police or a sergeant of police could earn more uninjured outside the police force than they do earn within the police force. The salary is somewhat less, but it carries with it security of employment and a job which will always be in demand.

There is no mention of any inability to do police work in the plaintiff's letter to the Police Service that was sent in April 1998 that is exhibit 6. That was a request that he be provided with a certificate of service. These are generally provided and the complaint that the plaintiff made was well founded, in that he wrote "I am fairly confident that someone knows that I resigned because I no longer receive a salary from the Police Service and my superannuation was paid out". However, in that communication, again, there is no mention of any inability to do police work or the need to resign because of ongoing medical problems.
However, even more implausible is the fact that I am now asked to accept as a fact that the plaintiff was incapable of doing his job as a police officer because of ongoing symptoms of osteoarthritis in each knee, when the plaintiff himself did not give such histories, in particular, to Dr Robin Hughes who wrote the referral letter to Dr Ellis of 28 September 2004, who took a history of the plaintiff's symptoms starting in July 2003, after playing touch football and twisting the right knee and a similar history being given by the plaintiff to Dr Ellis of being troubled by worsening right knee pain for about "12 months" prior to 18 October 2004, a history very similar to that obtained by Dr Robin Hughes. The plaintiff did not say he had ongoing symptoms between 1984 and 2003. He did give a history of "episodic apprehension of giving way and intermittent swelling of the knee, from time to time, but not of any ongoing symptoms sufficient to interfere with his ability to work". In similar way, when the plaintiff saw Dr Ellis about his left knee, he only put down the onset of his symptoms due to an event two weeks prior to 1 June 2011.
The histories given by the plaintiff to his treating doctors are not consistent with what I am now asked to accept. It is clear that the plaintiff ceased to be the PEDO at Wetherill Park in July of 1995. He then worked fairly consistently as a beat supervisor or shift supervisor up until the time that he resigned. He resigned to take up alternative employment in the private sector. There is no evidence that he consulted any medical practitioner in 1995, 1996, 1997, 1998, et cetera, up until his consulting Dr Robin Hughes at the RNSH Staff General Practice on 10 February 2004.
The other matter which has to be taken into account, of course, is the natural history of osteoarthritis. Osteoarthritis is a degenerative condition which can affect any weight bearing joint. Indeed, osteoarthritis can affect non weight bearing joints as well. The knee is a notorious weight bearing joint. Osteoarthritis of the knees is common. Persons can have a genetic predisposition to osteoarthritis, but osteoarthritis can also be acquired and osteoarthritis can also be idiopathic, in the sense that it is attritional, a process of wear and tear, erosion. The fact that it may be constitutional or genetic is, in fact, accepted by Dr Patrick. In his supplementary report of 1 August 2011, in which he provided his assessment of the permanent loss of efficient use of the plaintiff's right knee at or above the knee, the doctor says this:

"Based upon findings on clinical examination on this occasion, Mr Scott Anderson, I believe, has a total assessment of 30% permanent loss of efficient use of the right leg at or above the knee, from which I believe should be subtracted 1 10th of this impairment assessment in respect of any pre existing constitutional/degenerative condition, or constitutional predisposition to osteoarthritic change in synovial joint [sic], leaving him with the abovementioned net assessment by 27% permanent loss of efficient use of the right knee at or above the knee, entirely work/service injury related."

The symptoms of osteoarthritis can come on spontaneously. Osteoarthritis as an underlying condition may become symptomatic, but the exacerbation may cease, that is, the symptoms can go away. The condition may be accelerated by trauma over the years or by an attritional process or merely a constitutional process. It is not uncommon for persons with degenerative knees to have symptoms sometimes and no symptoms at other times. What the evidence before me shows is that the plaintiff appears to have been asymptomatic between the middle of 1993 until the middle of 2003, almost a decade. The only evidence in support of there being any ongoing problem is the evidence given by Leading Senior Constable Pearce. He worked with the plaintiff at Wetherill Police Station from early 1990 until 1994.

I do not know where Leading Senior Constable Pearce went after 1994, but when he gave evidence before me yesterday, he was serving with the Water Police at San Souci. Leading Senior Constable Pearce told me that he was an Acting Sergeant at Wetherill Park at times and worked as a shift supervisor. He regularly worked at the police station when the plaintiff was working there. He said that the plaintiff regularly complained about knee problems and would often turn up at mid shift and ask to be made the station officer so that somebody else could go out and do whatever work the plaintiff had been doing "in the field" or using more plausible police language "on the truck".
He told me that that happened regularly and the plaintiff would ice his knees regularly. He told me that the plaintiff, because of his complaints about his sore knee, was known to the local constabulary as "Blocker Roach", a reference to a well known rugby league player who had the nickname of "Blocker" and is reportedly known for having been a complainer, but a persisting player. However, complaints do not mean inability to do the work. What the Leading Senior Constable was deposing to was a system where the police looked after each other if any of them had a complaint.
It is clear that the plaintiff took no sick leave, that if he had any complaints, his complaints could be accommodated where he was working at Wetherill Park. Exhibit Q contains inter alia sick leave records and they show the last sick leave been taken by the plaintiff was on 14 January 1995 for a throat infection. At that time, he still had 795 hours of accrued sick leave. The plaintiff did not take sick leave. That is consistent with what Leading Senior Constable Pearce said. There is no reason for me to doubt what Leading Senior Constable Pearce says, but one has to remember that he is deposing to events that occurred, as far as he was concerned, 24 years ago or 25 years ago and with the passage of time there is a fallibility of human memory and there is also, of course, the common problem of telescoping, that is, the Leading Senior Constable could remember the plaintiff having complaints about knees and icing them and seeking accommodation when his knees were "crook", but he has telescoped that to cover the whole of the four year period that he was at Wetherill Park Police Station.
The plaintiff told me that since he worked in the TRG he had been wearing knee guards, but they could have been adopted because of the problems he had experienced at least in the right knee from playing football in his teenage years.
As I said, the plaintiff bears the onus of proof. The plaintiff has to show me that it is more probable than not that at the time he resigned he was incapable of discharging the duties of the office which he held. The office which he held at the time was as a Senior Constable, regularly forming shift supervisor work and beat supervisor work and prior to that time was working as the PEDO. There is no evidence that he was unable to do any of those things. The plaintiff says that he resigned because he was apprehensive that if he were transferred to Cabramatta or Blacktown, he would be required to work "on the trucks" to do the full work of a constable of police in the field, despite the fact that he was a Senior Constable with seniority who had previously been working as an Acting Sergeant when he was shift supervisor. Notwithstanding that apprehension, the plaintiff had been applying for a transfer to Tweed Heads to do work which could be seen as being field work, that is, active police work, in general duties or beat policing, the very type of work that he might be assigned to at either Cabramatta or Blacktown.
The plaintiff's case as put before me involved largely overlooking the medical evidence or the lack of it and relying upon purely what the plaintiff said about himself. However, I have had to point out, unfortunately, that in some respects the plaintiff's evidence was unreliable and, again, his evidence was given in generalities, without any real detail as to how the problems that he says that he now has interfered with his ability to do his work, but prior to his resignation and how, for example, it interfered with his ability to do the work which he has done subsequently.
As I said, the plaintiff bears the onus of proof and he has failed to discharge it. For those reasons, I confirm the determination of the Police Superannuation Advisory Committee acting as the delegate of the defendant made on 24 September 2015.

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Decision last updated: 09 August 2019

Medium Neutral Citation:	Scott Anderson v SAS Trustee Corporation [2019] NSWDC 406
Hearing dates:	6 - 8 March 2019
Date of orders:	08 March 2019
Decision date:	08 March 2019
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	See [87]
Catchwords:	POLICE SUPERANNUATION -
Legislation Cited:	Police Regulation (Superannuation) Act 1906, Workers Compensation Act 1987
Cases Cited:	Boland v SASTC (1999) 97 IR 127, Morley v SASTC [2007] NSWIRC 90, SASTC v Ainsworth [2011] NSWIRC 128, Locker v SASTC [2014] NSWIRC 144, Cook v SASTC [2014] NSWIRC 43
Category:	Principal judgment
Parties:	Scott Anderson (Plaintiff) SAS Trustee Corporation (Defendant)
Representation:	Counsel: Mr M Hammond (Plaintiff) Mr T Ower (Defendant) Solicitors: Carroll & O’Dea (Plaintiff) SASTC (Defendant)
File Number(s):	RJ 231/18
Publication restriction:	Nil