Ainsworth v SAS Trustee Corporation

Judgment 1In SAS Trustee Corporation v Ainsworth [2011] NSWIRComm 128; (2011) 213 IR 329, the Full Bench remitted the following matter for determination: The matter of whether the knee injuries suffered by Mr Ainsworth constituted a specified infirmity in accordance with the version of s 10B(1) Police Regulation (Superannuation) Act 1906 that applied as at 26 November 1997 and as that provision was construed by the Full Bench in Morley, is remitted to Backman J for determination. 2In Ainsworth v SAS Trustee Corporation [2010] NSWIRComm 113, I determined the appellant's appeal against the respondent's decision to decline to amend his Certificate of Incapacity, by reference to the version of s 10B of the Police Regulation (Superannuation) Act 1996 (PRS Act) which applied as at the date the respondent made its determination not to amend the Certificate (on 9 October 2008). The Full Bench held that the version of s 10B which should have been applied at first instance was the version in force at the time of certification which was 26 November 1997. 3In order to place this matter in context, it is necessary to set out some background. I intend to do this by extracting relevant parts of the first instance decision (set out below): [1] The appellant, David John Ainsworth, has appealed under s 88 of the Superannuation Administration Act 1996 (SA Act) against two determinations made by the respondent, SAS Trustee Corporation (the respondent). In the first determination, dated 9 October 2008, the Disputes Committee, on referral by the respondent, declined the appellant's request to have his Certificate of Incapacity (Certificate) amended by adding to it the infirmities, "hearing loss and tinnitus and injury to right knee and injury to left knee". The stated basis for declining to amend the Certificate was expressed in a letter of 9 October 2008 as follows: The Committee determined this matter pursuant to section 67 of the Superannuation Administration Act 1996, be declining to amend the infirmity specified in the certificate of incapacity issued to Mr David Ainsworth on 26 November 1997 because he was granted the infirmity that he claimed, either expressly or implicitly, as at November 1997 and therefore, he cannot be a person aggrieved by the terms of that certificate. [2] The Certificate dated 26 November 1997 was issued following Mr Ainsworth's application to the Commissioner of Police for a medical discharge on 20 April 1997. In that application, the appellant claimed that he was incapable of discharging the duties of his office, and any other office not lower in rank to his then current position, by reason of the medical conditions, "post traumatic stress and severe post-traumatic stress".[3] The application for medical discharge was sent under cover of letter dated 24 July 1997 by the employee assistance branch of the NSW Police Service to the Police Superannuation Advisory Committee, a body with the delegated authority of the respondent with respect to Police Superannuation Schemes, to certify whether an officer is incapable under relevant provisions of the Police Regulation (Superannuation) Act 1906 (PRS Act) of discharging the duties of his or her office. The letter contained a recommendation that Mr Ainsworth's application for medical discharge be accepted. It advised that the appellant had been diagnosed as suffering from, "post traumatic stress disorder; reactive anxiety and reactive depression". Also attached to the letter were documents, including medical reports concerning the appellant's psychological infirmities. In addition, there was a brief reference to the appellant's right knee injury, expressed in the following way: There is medical evidence on file concerning a Right Knee condition. However, the Inspector has not claimed it as permanently incapacitating him, nor has it been raised by the PMO. [4] The Certificate certified that the appellant was "incapable, due to the specified infirmity of 'Post traumatic stress disorder; reactive depression and anxiety' of discharging the duties of his office and 'any other office in the police force'". [5] After the Certificate was granted, a delegate of the Commissioner of Police, on 8 December 1997, determined, in accordance with s 10B(3)(a) PRS Act, that the infirmities as certified (post traumatic stress disorder, reactive depression and anxiety) were caused by the appellant being "hurt on duty". [6] As a consequence, Mr Ainsworth was medically discharged from the NSW Police Force on 8 January 1998 and he commenced receiving a superannuation allowance in terms of s 10(1A) PRS Act. That superannuation allowance was equal to 72.75 percent of the appellant's attributed salary of office. [7] On or about 22 July 1998, the appellant's superannuation allowance was increased from 72.75 percent to 77 percent by the respondent pursuant to the provisions of s 10(1A)(b) PRS Act. [8] Subsequently, the appellant commuted part of his superannuation allowance. [9] On or about 29 November 2007, the appellant's superannuation allowance was again increased by the respondent to 84 percent of his attributed salary of office pursuant to s 10(1A)(b) PRS Act. [10] Mr Ainsworth, through his solicitors, filed a Statement of Claim on 9 May 2008 in the District Court of NSW. That Statement of Claim, in effect, appeals against the decision of the respondent to increase the superannuation allowance to 84 percent. The Statement of Claim seeks a determination, in terms of s 10(1A)(c) that the appellant is "totally incapacitated for work outside the police force and ... was hurt on duty because (he) was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment". If successful, Mr Ainsworth's superannuation allowance would increase to an amount somewhere between 85 percent and 100 percent of his attributed salary of office. [11] The purpose of the present proceedings, so the Court was told, is to obtain certification of infirmities in addition to those already certified. In the event that the Court determines the additional infirmities, the Commissioner of Police will then need to determine whether or not, in terms of s 10B(3)(a) PRS Act, the additional certified infirmities were caused by Mr Ainsworth being hurt on duty. If this occurs, there will be relevant infirmities additional to those already certified for the District Court to consider when determining whether or not Mr Ainsworth is totally incapacitated. [12] The amendment to the Certificate granted on 26 November 1997 was sought by letter dated 7 July 2008, which was expressed in the following terms: We act for the above who we understand was provided with a certificate of incapacity pursuant to Section 8(1) and 10B(1) of the Police Regulation (Superannuation) Act 1906, as amended. It certified that your member was incapable of performing his duties due to the infirmities of "post traumatic stress disorder, reactive depression and anxiety" which was caused by the member being hurt on duty. At the time of applying for his medical discharge your member was suffering from the infirmities of "hearing loss and tinnitus and injury to right knee and injury to left knee" which has (sic) been omitted from the certificate of incapacity. We request that the infirmities of "hearing loss and tinnitus and injury to right knee and injury to left knee" be placed on that certificate. We enclose the following reports: