HIS HONOUR: The plaintiff is a former Leading Senior Constable of Police. He was attested as probationary constable of police on 17 May 1985 and thereupon became a contributor to the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906, ("the Act"). On 27 February 2003, the Police Superannuation Advisory Committee (PSAC) certified that the plaintiff was incapable of performing the duties of his office due to the infirmities of osteoarthritis of each of his knees and degenerative arthritis of his lumbar spine. That led to the plaintiff's being medically discharged from the NSW Police on 7 March 2003. On 3 July 2003, the plaintiff, through his solicitors, made an application to increase his superannuation allowance to 100% pursuant to s 10(1A) of the Act. On 30 September 2004, PSAC determined that the plaintiff's allowance should be increased from the basic 72.75% of the salary of his office to 77% of the salary of his office, payable from 12 July 2004. The plaintiff made an application to this Court by statement of claim filed on 5 April 2005, alleging that he was aggrieved by that decision of the defendant. However, those proceeding were discontinued.
By application dated 15 April 2014, forwarded to the defendant under cover of a letter of his solicitors dated 22 April 2016, the plaintiff applied for a further increase in his annual superannuation allowance. That application was received by the defendant on 29 April 2014. That application was considered by PSAC on 24 September 2015, but it declined to increase the plaintiff's superannuation allowance above that previously granted. The plaintiff considers himself aggrieved by that decision and commenced the current proceedings by a statement of claim filed on 14 March 2016.
Most of the important facts are admitted on the pleas. Paragraph 11 of the statement of claim is admitted. It is this:
"During the course of his service for the NSWPF, the Plaintiff suffered injuries whilst performing his police duties.
PARTICULARS OF INJURIES
The Plaintiff suffered injury to his back on 17 October 1996 whilst trying to arrest an offender;
The Plaintiff suffered injury to his left knee on 20 April 1997 whilst climbing a wall and landing heavily on uneven ground in the course of the responding to an alarm at a house;
The Plaintiff suffered further injury to his back on 22 September 1998 whilst lifting a boat trailer to move it from a dangerous position on a roadway;
The Plaintiff suffered further injury to his back on 24 October 1998 whilst lifting a generator in the course of his police duties at Eastwood Police Station;
The Plaintiff suffered further injury to his left knee and right knee on 29 December 1998 whilst giving pursuit to a person of interest, landing heavily on both knees following lowering himself into a stormwater channel [;]
The Plaintiff suffered further injury to his left knee and right knee on 17 March 1999 (notional date) following participation in a police weapons training exercise."
The plaintiff submitted an application for medical discharge. That application was dated 11 April 2002. That eventually led to the plaintiff's application being considered by PSAC on 27 February 2003 when it granted the certificate to which I have already referred. Paragraph 15 of the statement of claim, which is also admitted, recites the determination by the Commissioner of Police to accept the certified infirmities as having been caused by the plaintiff's having been hurt on duty and provides the dates of injury and the particular areas of the body which were injured on those dates.
There is before me a lever arch binder containing medical evidence. That medical evidence dates as far back as the 18 October 1996. It is voluminous. I shall do my best to succinctly state what that evidence is.
The plaintiff's early history is summarised by Dr Mario Benanzio at the beginning of his report of 28 June 2002. That report follows upon Dr Benanzio's examination of the plaintiff on 21 May 2002. Dr Benanzio was qualified by the plaintiff's then solicitors. The early history is this:
"He joined the police force in 1985 and has reached the rank of senior constable.
On 17 October 1996, when arresting a heavyweight offender, there was a struggle and he developed an ache in the right low back. He was seen by his doctor and was off work until 21 October 1996. He had physiotherapy. Since then he has had a persistent degree of low back discomfort without radiation to the lower limbs.
On 20 April 1997, he jumped off a wall and landed on uneven ground. He developed symptoms in the left knee and the left ankle. He continued on normal duties. He was seen by his doctor on 22 April 1997 with a diagnosis of strains. He had no specific treatment.
On 23 August 1997, in his own time, he lifted his child and developed increasing discomfort in the low back. He was off work until 24 October 1997. He was seen by his doctor.
On 22 September 1998, on duty, he lifted a boat trailer and the low back ache increased. He was not off work.
On 24 October 1998, on duty, he lifted a generator and the low back ache again increased.
On 29 October 1998, at home, he lifted his child and the low back discomfort increased. He was off work until 1 November 1998 and had physiotherapy.
On 26 November 1998, at home, he threw a stone, and the jarring aggravated the low back discomfort.
On 29 December 1998, on duty, when pursuing an offender, he lowered himself into a stormwater canal and dropped four metres, landing heavily on both knees. There was pain in both knee joints. He continued on normal duties and had no treatment.
The complaints in the back and both knees were persisting and he could not walk, stand or sit for very long.
On 17 March 1999, as a consequence of repeatedly bending and squatting during firearms training lasting three days, the right and left knee symptoms aggravated. He was seen by his doctor on 23 March 1999 and referred to Dr B. Caldwell, Orthopaedic Surgeon, on 30 March 1999. X-rays of 31 March 1999 showed degenerative changes in both knees, with signs of chondrocalcinosis."
I thought it prudent to quote that early history at length because it shows the plaintiff's absolute candour. He readily admitted to events which occurred when he was not at work which interfered with his back and which clearly indicate that he was not trying to hide any non-work-related contribution to the development of his back and knee problems.
On the 19 April 1999, Dr Bruce Caldwell practiced bilateral subtotal medial meniscectomies. When seen by Dr Caldwell two months after that surgery, the plaintiff had no symptoms referrable to his medial joint lines and had no effusion. On examination, his knees were stable and there was no tenderness along the medial joint line and there was no tenderness in the posteromedial corner. Dr Caldwell expressed the view that the plaintiff's meniscectomies had "settled well". He pointed out that there was a need for the plaintiff to strengthen his quadriceps muscles and that, undoubtedly, was to be by way of physiotherapy.
On 25 July 2000, the plaintiff underwent a CT scan of his lumbar spine. That is the first radiological investigation of the plaintiff's spine, which has been provided to me. There was said to me a minimal degree of annular disc bulging at L4-5 and also at L5-S1. There was also thought to be some narrowing of the right L4-5 intervertebral foramen. However, there was not thought to be any other evidence of spinal canal stenosis.
On 27 July 2001, the plaintiff went on sick report and was to remain on sick report until his medical discharge from the NSW Police Force. He had seen Dr Caldwell prior to stopping work. On 4 July 2011, Dr Caldwell took a history that the plaintiff had made a good recovery from the surgery he practised on 19 April 1999 but over a few months preceding July 2001 the plaintiff had been having increasing ache in the medial aspect of his left knee. That was associated with episodes of swelling. There was a history given of some problems with the knee rocking and of a catching of the patellofemoral joint. On examination, the doctor found evidence of genu varum, of the plaintiff's being bow legged. However, that bow leggedness was on both sides, it was not confined to the left leg. He also found some wasting of the quadriceps, presumably on the left side.
On 17 August 2001, after the plaintiff had stopped working, he was seen by Dr David Hale, an orthopaedic surgeon practicing at Hornsby. Dr Hale took a history that over the preceding twelve months the plaintiff had developed bilateral knee pain, his left knee being more badly affected than the right. The pain was relatively diffuse and there was pain behind the patella as well as in the medial and the lateral compartments and in the popliteal fossa. Like Dr Caldwell, Dr Hale diagnosed genu varum, that is bow leggedness. He also found a mild left popliteal cyst. He went on to express the view that the plaintiff might be a suitable candidate for high tibial osteotomy on the left-hand side, because of the genu varum on that side, that opinion having been expressed by Dr Caldwell when he saw the plaintiff earlier that year.
The plaintiff returned to Dr Caldwell on 28 August 2001 and recommended some further investigations prior to further considering a high tibial osteotomy on the left-hand side. He performed arthroscopy in September 2001. On the right-hand side, the doctor found a fibrous lump which he thought to be cartilaginous in texture near the quadriceps, and it was excised. On the left-hand side, he found that the chondral surfaces of the medial compartment showed damage on the medial femoral condyle and there was a deposit of calcium salts on the surface of that condyle. That clearly is an indication of chondrocalcinosis. Essentially, the doctor carried out a clean-up operation. However, his findings on examination at that time did not appear to Dr Caldwell to justify high tibial osteotomy on the left-hand side.
An MRI of the plaintiff's left knee was carried out on 12 November 2001. That is said to show early cartilage wear in the medial femorotibial compartment. There was also chondral wear on the back of the patella. There was also a small popliteal cyst on the left knee that had clearly been seen by the doctors earlier. It was decided to proceed with high tibial osteotomy and that was carried out at the Castlecrag Private Hospital on 2 February 2002. The plaintiff was reviewed after that surgery by Dr Caldwell, two weeks post-surgery, six weeks post-surgery and three months post-surgery. On 2 May 2002, three months after surgery, Dr Caldwell thought the plaintiffs' left knee was stable and that, essentially, he was pain free.
Less than three weeks later, the plaintiff was first examined by Dr Benanzio. The plaintiff's solicitors were clearly considering making applications for gratuities under s 12D of the Act. Dr Benanzio thought the plaintiff had 25% impairment of his back, a 30% loss of efficient use of the left leg at or above the knee and a 20% loss of efficient use of the right leg at or above the knee and expressed a guarded prognosis. In a supplementary opinion, Dr Benanzio expressed the view that 10% of each of those impairments was due to a pre-existing osteoarthritic condition in the plaintiffs' back and in his knees.
For the same purpose as the plaintiff was examined by Dr Benanzio, he was examined for the defendant by Dr Ian Barrett, an orthopaedic surgeon, on 24 January 2003. Dr Barrett diagnosed a 15% impairment of his back, a 25% loss of efficient use of the left leg at or above the knee and a 15% loss of efficient use of the right leg at or above the knee. Dr Barrett thought 10% of the plaintiff's back impairment was referrable to an underlying condition but he thought that of the 25% loss of efficient use of the plaintiff's left leg at or above the knee, 5% was due to an underlying condition and he was of the same view as to the 15% loss of efficient use of the plaintiff's right leg at or above the knee. Dr Barrett accepted that the plaintiff was incapable of discharging the duties of the office of a senior constable of police. He did not, however, think the plaintiff was totally incapacitated and though the plaintiff would be able to secure work outside the police force of a sedentary or clerical nature. He thought the plaintiff was unfit for any work which involved prolonged standing, squatting or lifting weights greater than ten kilograms.
Eventually the defendant determined that the plaintiff had 18% impairment of his back, 23.5% loss of efficient use of the left leg at or above the knee and 14% loss of efficient use of the right leg at or above the knee. Exhibit 1 is a letter from the defendant to the plaintiff's then solicitors advising that PSAC had made that decision on 31 July 2003. I have been told that, subsequently, the parties reached agreement as to the plaintiff's entitlement under s 67 of the Workers Compensation Act 1987 as applicable to the plaintiff pursuant to s 12D of the Act.
For the purposes of the litigation which did not proceed in this Court, it appears that the plaintiff saw Dr Benanzio again on 12 May 2004 and Dr Tim Anderson on 24 August 2004. This was the first occasion on which the plaintiff was seen by Dr Anderson. Dr Anderson expressed the view that the plaintiff would be "easily fit" to carry out almost any office-based occupation on a full-time basis. However, he accepted the plaintiff was not fit for physically arduous activities. He was certainly not fit for work confronting offenders. Dr Anderson also expressed the view the plaintiff could do work involving "a substantial driving component", such as the work of a real estate agent.
Sometime in the early 2000s, the plaintiff had started to see Dr Hale for the condition of his knees rather than Dr Caldwell, mainly because Dr Hale was closer to the plaintiff's home than was Dr Caldwell. The plaintiff was reviewed fairly regularly by Dr Hale from April 2008 onwards. There is a gap in the medical evidence before me between 2004 and 2008. What took the plaintiff to see Dr Hale on 14 April 2008 was a new condition. He had ruptured the anterior cruciate ligament of his left knee. There was also thought to be some damage to the medial collateral ligament of the plaintiff's left knee. That condition is not work related. That injury occurred when the plaintiff was running in order to kick a football. As I understand it, the plaintiff was assisting his sons with their soccer training or in training a soccer team. When seen by Dr Hale on 14 April 2008 there was a marked haemarthrosis, meaning a large amount of blood within the knee joint.
Eventually, the plaintiff came to a reconstruction of his left anterior cruciate ligament at the Sydney Adventist Hospital on 26 November 2008. At the time, it was necessary to remove from the plaintiff's left knee a Puddhu plate, which had been inserted into the knee joint when the high tibial osteotomy had been performed. That would appear to be a consequence of the rupture of the anterior cruciate ligament and the need to repair that damage. Dr Hale reviewed the plaintiff on 22 January 2009. Dr Hale's report of 27 January 2009 includes this history:
"After Christmas, he experienced increased swelling as a consequence of walking longer distances. He walked up to one kilometre and also was walking in soft sand at one stage. Not surprisingly, as a consequence this has led to a little more stiffness. He has also noticed that the knee feels a little more unstable following this."
On examination, Dr Hale noted that there was a moderate effusion in the left knee. The significance of the history is that the plaintiff was obviously seeking to improve the condition of his left knee, improve its mobility by walking longer distances and, unsurprisingly over the Christmas period, his walking in soft sand, presumably on a beach. Dr Hale reviewed the plaintiff on 21 May 2009 and noted the plaintiff had improved and that his knee joint was stable but he needed ongoing physiotherapy.
A further referral was made by the plaintiffs' longstanding general practitioner, Dr Clive Scriven of Berowra Heights, to Dr Hale in late 2010. On 26 November 2010, Dr Hale diagnosed a probable right medial meniscal tear, left lateral knee pain and a recent worsening of his low back pain. Dr Hale noted the plaintiff was having chiropracty for the condition of his low back. He had increasing symptoms in his right knee and, on examination on 26 November 2010, Dr Hale noted genu varum on the right side. He also thought the plaintiff was having some muscular problems affecting his legs because of his low back condition. Again, the doctor recommended various forms of physiotherapy and exercise.
The plaintiff returned to see Dr Hale on 9 December 2011, just over a year later. The plaintiff still had some symptoms although they appeared at this stage to be mainly on the left-hand side. The doctor took this history:
"Currently, his son is training for under sixteen rugby league and Cornel tends to go along and run with him. Running up and down stairs on Tuesday aggravated his symptoms."
It appears the plaintiff was trying to lead the normal life of a father but the condition of his knees was causing him a problem. The doctor thought the plaintiff's left ACL reconstruction did not feel as stable as it had been before but he thought that might be due to increasing arthritis as well as an attenuation of the graft in the left knee. Again, the doctor recommended strengthening exercises in order to obviate a total knee reconstruction.
The plaintiff was sent back to see Dr Hale by Dr Scriven on 31 May 2012. On this occasion Dr Hale diagnosed a right medial meniscal tear as he had back in late 2010 and residual problems in the left knee. A recent MRI scan had confirmed a medial meniscal tear in the right knee, associated with early medial compartment degenerative change and significant patellofemoral degenerative change. Arthroscopy was then practiced on 6 July 2012. Part of the operative report is this:
"As expected, there was a complex posterior horn tear of the medial meniscus, which was excised back to a stable border. There were also grade 2 changes particularly affecting the medial tibial plateau. There were minimal lateral compartment changes and there was only a small area of grade 1 wear affecting the patellofemoral joint (trochlear groove)."
There is no suggestion of any recent, that is after leaving the police force, injury to the plaintiff's right knee. There clearly was a frank injury to the left knee in non-compensable circumstances in either late 2007 or early 2008. It would appear to me, and learned counsel for the defendant agrees with my view, that the inevitable process of the degenerative change in the plaintiff's right knee had led to a degenerative tearing of the medial meniscus of the plaintiff's right knee and that was the cause for the operative treatment on the plaintiff's right knee in July 2012.
The plaintiff was reviewed by Dr Hale on 15 August 2012. Dr Hale commences his report on 17 August 2012 with these observations:
"Initially he was recovering very well following his arthroscopy but developed an increasing pain in the two week mark post-operatively when he sustained a minor twisting injury to his knee stepping off a verandah. Following this he noticed medial pain associated with bruising. He was wearing a brace at the time which may have contributed to the bruising. Since then he has improved approximately fifty per cent."
This to me does not represent any further frank injury: it was merely a demonstration of the injured state of the plaintiff's right knee and its state immediately following surgery: the plaintiff needed to wear a brace to protect his recently operatively treated right knee. It also indicated the plaintiff was seeking to live a normal life. The plaintiff was referred by Dr Hale for continued physiotherapy. Indeed, it appears from medical evidence I have read the plaintiff essentially continues to undergo such treatment since that time.
On 23 October 2012, at Dr Hale's request, the plaintiff underwent an MRI scan of his right knee. The radiologist, Dr Lucas, expressed this opinion:
"Loose chondral debris in the joint and joint effusion. Previous partial medial meniscectomy with a stable appearing meniscal remnant. Chondral wear, particularly in the patellofemoral compartment also slightly in the medial compartment. Small joint effusion and popliteal cyst."
It is clear that at this time the plaintiff's complaint to Dr Hale was essentially about his right knee. Dr Hale recommended ongoing physiotherapy.
The next development was an acute onset of low back pain while the plaintiff was at his home at Berowra. An ambulance was called. The plaintiff told the ambulance officers that he had back pain for about a day which was progressively getting worse but with a history of ten years of back ache. The plaintiff was taken to the Hornsby Hospital where was provided with analgesia and other comforts. The history recorded is that the pain commenced when the plaintiff was lifting either a watering can or a bucket of water. From what the plaintiff told me and sought to describe, it would appear to be a five-litre watering can. The hospital staff took a history that the plaintiff was normally receiving physiotherapy, and that he was swimming regularly. The plaintiff told me he was swimming two and a half kilometres once a week, I believe it was each Saturday, and other evidence suggests that it was at the Knox College pool.
Dr Hale saw the plaintiff again on 19 December 2012, about four weeks later, but was not concerned about the plaintiff's low back condition. He was concerned about the plaintiff's right knee. On examination, he thought the plaintiff had a good range of pain free movement of the right knee but there was some crepitus and clicking present. He recommended continuing review and continuing physiotherapy.
On 1 August 2013, the plaintiff saw Dr Roberta Chow, who appears to be a specialist in pain management, although she is only a general practitioner. She recommended low level laser therapy for the plaintiff's chronic low back pain and recommended at least ten treatments of laser therapy once a week. Whether they were performed I do not know. However, she also planned that the plaintiff have prolotherapy injections into each of his knees. That appears to have been done. What was injected into the plaintiff's knees was a 50% solution of glucose and xylocaine. When told of this, Dr Hale said that he was "unclear as to the principle of this management." I had it explained to me by counsel but, of course, what they tell me is not evidence. On the evidence, I still am bemused by glucose injections into the knees. Dr Hale did not recommend further glucose injections but continued physiotherapy.
The plaintiff was reviewed by Dr Hale on 7 May 2014. The doctor took a history that the plaintiff could not walk for approximately 500 metres on level ground before he had to stop. That was because of the condition of his back or his feet. Of recent times, the plaintiff has been complaining of symptoms which are generally described as plantar fasciitis, which is merely a polite Latin way of saying sore feet. Dr Hale prescribed further physiotherapy and recommended that the plaintiff continued with his swimming.
From the middle of May 2014 onwards, I have a large number of reports generated for the purpose of the plaintiff's application to the defendant which led to the current proceedings. The first medico-legal report before me is that is that of Dr James Bodel, a well-known orthopaedic surgeon, who saw the plaintiff for his solicitors on 14 May 2014. Dr Bodel diagnosed a non-specific mechanical back ache, probably associated with some "minor degenerative change" in the lumbosacral region. However, the doctor acknowledged that he had not seen any recent radiological investigations. He also diagnosed meniscal pathology in each knee and the anterior cruciate ligament rupture of the left knee. By this time, the plaintiff had found work minding children out of school hours. Dr Bodel expressed this view:
"He indicates to me that he is doing it eight and ten hours, in very light duties in after school care and he should be able to continue that indefinitely. He may also undertake semi-sedentary work that avoids prolonged standing, kneeling, squatting, running or climbing from the point of view of the knee injuries, if that were available to him."
In between medico legal assessments, the plaintiff was referred by Dr Scriven to Dr Manuel Cusi, a sports physician, and conjoint lecturer, presumably in that specialty, at the University of New South Wales. Dr Cusi arranged for the plaintiff to undergo an MRI scan of both his lumbar spine and his sacroiliac joints. The radiologist thought there was a problem at T12/L1, which he described as a small right foraminal disc protrusion, but it was not impinging upon any other structure, such as the theca or nerve roots. There was thought to be a minor disc bulge at L2/3, and also at L3/4. At L4/5 there was said to be mild disc dessication. There was a broad base disc bulge and some facet joint hypertrophy. There was thought to be a compromise of the left lateral recess impinging on the left L5 nerve root. The L5/S1 disc was also found to be dessicated. The radiologist thought that there was a disc protrusion resulting in indentation of the thecal sac contacting and mildly displacing the right S1 serve root. There was also thought to be a problem with the facet joints at this level, and degenerative marrow changes at the end plate margins of the vertebra, more marked on the right of the midline. Essentially what that is describing to me is widespread degenerative disc disease in the lumbar spine. The sacroiliac joints were also found to be the subject of some abnormalities, the exact significance of which remains unclear to me. Essentially there is a finding of bone marrow oedema, though I am not aware of the significance of that.
Dr Tim Anderson saw the plaintiff for the second time on 20 August 2014. Dr Anderson took a history that, since he had last seen the plaintiff ten years previously, he had experienced some depression and had also had a right inguinal herniorrhaphy which had resulted in the trapping of an associated nerve which occasionally gave him irritation in the groin. Dr Anderson expressed a view that the plaintiff remained fit for full time work in an office based environment. He made a comment about the plaintiff's working on a computer doing share trading, and the plaintiff has done so, but he could have done that when he was a member of the NSW Police Force, and that is not an activity in which he now engages because his share investing was unsuccessful, as were his dealings in real property. At the top of p 7 of the doctor's primary report, following upon his examination on 20 August 2014, Dr Anderson said this:
"As before, he is unable to undertake physically arduous activities involving frequent bending, lifting, carrying, pulling, pushing and twisting. He is also unable to maintain a static postural position for more than an hour or so. Due to the condition of his knees, he is unable to frequently manage steps and stairs, although [he] can manage some. Fast movement such as running is not possible."
A little later in the report he said that within those parameters the plaintiff could work full time. It appears to me difficult to postulate what sort of work the plaintiff could obtain within such restrictions that he could do for 38 hours per week. Dr Anderson made a comment, which is borne out by all the evidence I have read and heard, that the plaintiff's motivation to work was not any problem. In other words, the plaintiff wanted to work and was doing such work as he could find. Although submissions have been made to me about a supervening non-compensable incapacity, Dr Anderson was of the view the plaintiff's current health was quite good, and that he did not require treatment for anything other than his hurt on duty conditions. In a supplementary opinion, Dr Anderson expressed the view that the condition of the plaintiff's right knee was more severe than the condition of his left knee.
The day after the plaintiff was seen by Dr Anderson, he had some nuclear imaging performed at the request of Dr Cusi, but its exact significance is unclear to me, and it has not been adequately explained by Dr Cusi. In a report of 5 November 2014 to Dr Scriven, Dr Cusi refers to the question of prolotherapy but the plaintiff told the doctor that he was not keen in having any further prolotherapy. There is nothing to suggest the plaintiff is in any way misguided in that view.
Dr Hale reviewed the plaintiff on 7 November 2014, and thought the plaintiff was doing relatively well, but that he should maintain his current exercise regime which included both physiotherapy and swimming. On 28 November 2014 the plaintiff was interviewed by Professor Robert Pryor, a vocational psychologist. Professor Pryor saw the plaintiff at the Vocational Capacity Centre. It is perhaps convenient at this stage to refer later to what Professor Pryor had to say and to continue with a review of the other medical evidence before me.
There are a number of further reports from Dr Cusi, but they do little to assist me. There are reports from Dr Hale of 8 May 2015 and 5 November 2015 and 2 May 2016, being reports addressed to Dr Scriven. There is also a comprehensive medico legal report from Dr Hale to which I shall refer at the appropriate time.
The plaintiff was reviewed by Dr Tom Mastroianni, a consultant occupational physician on 28 June 2016. Dr Mastroianni obtained a history that during school periods the plaintiff did before and after school care from 7am to 9am and from 3pm to 6pm. That appears to me to be a general description of when after school care can be provided, rather than the hours actually being worked at it at that time by the plaintiff. However, it is to be noted that before and after school care can be provided for five hours per day, for five days each week during school term time. The plaintiff told Dr Mastroianni that he suffered from depression, however he does not comment any further on that complaint. As far as the results of the right inguinal herniorrhaphy are concerned, Dr Mastroianni said that the plaintiff had pain radiating into his right testis during sexual activity, and that he also complained at times of sexual dysfunction. That is the only specific evidence as to the way in which the plaintiff has been adversely affected by some entrapment of a nerve following upon the right inguinal herniorrhaphy. Such complaints will not interfere with the ability of the plaintiff to perform any of the types of jobs that are of concern in the current proceedings. It was submitted by Mr Ower, on behalf of the defendant, that this could be a problem for the plaintiff with heavy lifting, but that is not the history given by the plaintiff to Dr Mastroianni. Dr Mastroianni also took a history that the plaintiff did not take analgesia and deduced from it that the plaintiff had a high pain tolerance. It is clear to me the plaintiff is reluctant to take pain killing analgesia, but he does for example take anti-inflammatories, and does seek alternative medical care rather than to take large amounts of analgesia.
On p 7 of his report, Dr Mastroianni said that the plaintiff's capacity for work was affected by his limited sitting, standing and walking tolerance, and his restricted ability to use stairs and an inability to squat or do any heavy lifting. He thought the plaintiff was fit to do the work that he was then doing, that is before and after school care, on a part time basis. He then expressed the inspired view that as the plaintiff was working part time, he was capable of working part time. This hardly requires a medical opinion. However, he then said that the plaintiff was not fit to work on a full time basis, even on restricted duties, but does not at the time he says that state why. Perhaps other statements made by Dr Mastroianni might explain that view. At the top of p 8 of his report, the doctor expressed a view that whether the plaintiff could work ten hours a week more than he was then working would depend upon the job that he was doing. That again does not require much medical expertise. He clearly would be unable to do an extra ten hours work week if that involved repeated heavy lifting. Equally he might be able to work ten hours per week more if he were a mattress inspector, testing the mattresses for their resistance to the weight of the body, that is, laying down. A little later in the report the doctor says this:
"Standing, driving and sitting tolerance he describes as aggravating his condition and feeling less and less comfortable after 20 30 minutes, and he therefore needs to be in a position to change posture as required."
Again, the doctor appears to be relying on what the plaintiff told him, and the doctor appears to be accepting what the plaintiff told him as being truthful, but I accept what the plaintiff told me as being truthful, and therefore I can accept Dr Mastroianni's acceptance of the plaintiff's complaints. Dr Mastroianni was then referred to certain opinions that had been expressed by Professor Pryor. He went on to say this:
"I would agree that he is vocationally suited for the jobs identified, however he is not fit to work as a security officer except for security surveillance in a control room. He can only do that for a couple of hours per day with restrictions, ie, ability to [sit] or stand as required, and no fixed neck postures.
He could do security consultant work as an office based occupation on a part time basis due to his restricted sitting, standing and walking tolerance, but will not be able to do on site evaluation and inspections.
He is not fit to work as an insurance investigator.
He can do share trading / stock trader a couple of hours per day and similarly general clerk and coding clerk duties. He cannot do these jobs on a full time basis due to the decreased sitting tolerance."
A number of those statements are ipse dixits. The doctor does not tell me why the plaintiff cannot work as an insurance investigator. He also says the plaintiff could not do work as a security consultant on a full time basis, but that appears to be based on an a priori view as to what the job involves. I shall return to this issue later.
Dr Anderson reviewed the plaintiff on 12 September 2016. At the foot of the first page of his report, Dr Anderson said this: "I would willingly acknowledge that it would be difficult for him to work on a full time basis" but he appears to express that view because the plaintiff had "a whole constellation of other influences" as well as his hurt on duty injuries. By the time Dr Anderson examined the plaintiff on 12 September 2016 the plaintiff's worst problem was his lower back pain. He also obtained a history of pain in the plaintiff's right elbow and pain in the right groin from the previous inguinal hernniorraphy and the nerve entrapment. He also obtained a history of the plaintiff's having ongoing migraine headaches.
Under the heading "Motivation and Attitude" Dr Anderson said this:
"Mr Arnold was very 'down' at this assessment. I gained a fairly strong impression that he probably is quite depressed, although [he] tends to put a brave face on it. Issues which seem to cause him a lot of disappointment at the moment are the family arguments and also his disappointment with the other staff at the child care centre, whom he feels are just not doing their job properly."
That appears to be Dr Anderson's own assessment rather than any complaint by the plaintiff. The plaintiff initially started out of hours school care at Hornsby North Public School. He then started doing similar work at the Berowra Public School. Eventually the plaintiff gave away the work at the Hornsby North Public School, but has continued to do the work at the Berowra Public School. The plaintiff said that the staff at the Hornsby North Public School were all young people, who, although he would not describe as "lazy", spent most of their time attached to their mobile telephones, making calls, sending text messages, using the internet and Facebook and the like. That is to be contrasted with the staff at the Berowra Public School, who are older, and according to the plaintiff more responsive to the children, and therefore the duties of the staff are shared equally, whereas at the Hornsby North Public School, because of the preoccupation of the young people with their mobile devices, he had to do a lot of the work himself with very little assistance. That appears to be one of the factors which Dr Anderson was taking into account as relevant to the plaintiff's being "down". The plaintiff told me of that, and that did not appear to me to be the cause of any psychological distress to him. Indeed, he was somewhat bemused that I should have invited him to express the view that the young people were "lazy" and he preferred to describe them as being preoccupied with their mobile devices. I accepted that was a reason for the plaintiff to give away the work at the Hornsby North Public School, but I did not accept that it is the cause of the plaintiff's being depressed. The plaintiff's wife works full time. Understandably the plaintiff tries to perform a lot of the housework when his wife is at work, when he himself is not working. That is understandable, but is not really the cause of depression. The plaintiff's children are now aged between 22 and 18 years, and all three are still living at home. That could be a cause of a measure of psychological distress to any parent. I formed a favourable view of Mr Arnold, I did not believe that he was suffering from any psychiatric distress which would interfere with his performing other any which he was fit to do.
Commencing under the heading "Fitness", Dr Anderson said this:
"There has really been very little (if any) change to his HOD conditions. I have already mentioned that there are a whole host of other factors which seem to be having a greater effect on his general level of functionality, and certainly on his happiness. These, however, are associated with family and social circumstances, and are just not HOD. Therefore, strictly speaking, from an HOD perspective, he remains fit to work full time in an appropriate office-based, or at least semi-sedentary-based, occupation. Obviously he should not be sitting for long periods of time, nor should he be similarly on his feet. Movement up and down stairs is ill advised, but provided he has the opportunity of altering his postural position virtually when he needs to, I can see no reason why he should not be working on a full time basis.
I note Dr Tom Mastroianni has advised that Mr Arnold is fit to work, but that this is only for a part-time basis. He describes that the reason for this is that he cannot maintain a postural position for any length of time. Whilst I would agree with that, provided the occupation takes this into account and he is able to alter his postural position, I can still see no reason why he would not be able to work on a full-time basis."
One again must ask oneself what sort of work is available for 38 hours per week which contains all the restrictions which are placed upon the plaintiff by Dr Anderson. Dr Anderson himself does not identify any such job.
Before going back to the report of Professor Pryor, I shall describe the final medico legal report of Dr Hale and its clarifying additional comments. Before I do so, however, I shall explain the significance of what I am about to quote. In Miles v SASTC [2016] NSWDC56 I considered what a plaintiff in the present plaintiff's position must prove. In Miles I had made a determination on 2 February 2006 of the plaintiff's entitlement under s 10(1A) of the Act. He then made another application to increase that amount which was rejected by the SASTC. He then brought a further application before me. That led me to comment on what the plaintiff must prove and what that plaintiff had to prove, the current plaintiff must prove. Between [4] and [12] I discussed the relevant case law. It is incumbent upon a plaintiff in the position of the present plaintiff to prove a material change of circumstance or fresh evidence prior to his or her being entitled to a further assessment of his or her superannuation allowance. That was the position argued for the defendant in Miles by Mr Ower, and it is the same argument that he offers in this case. The question is essentially what material change of circumstances has there been, or what fresh evidence is there, since the decision of the defendant on 30 September 2004?
In his report of 17 November 2016, Dr Hale said this:
"9. The osteoarthritis of both knees and degenerative arthritis has deteriorated since his last Police pension increase approval on or about 30 September 2014[sic]. From the history provided it is clear that his activities of daily living have been affected. Whereas it was possible for him to participate in activities such as coaching his son's football team in the past, this is no longer possible, and he has trouble walking more than 500 metres, as well as being only able to perform limited work related duties.
10. It is anticipated that the osteoarthritis of both knees and degenerative arthritis of the lumbar spine will deteriorate as this is the nature of the disorders. As they are degenerative, irrespective of the cause of arthritis, it deteriorates in time. On the balance of probability, his work related duties are the major reason for his degenerative change. It is not possible to [? estimate] the speed which it will deteriorate.
11. Based on the history obtained, it is likely that Mr Arnold's capacity to work has deteriorated since the Police Pension Application in September 2004. This can be determined by the activity level over this period. It is extremely unlikely that he would be able to increase the amount of work related duties or hours that he is currently performing.
12. It is anticipated that Mr Arnold may continue with his previously described current work related duties, but it is unlikely to be able to increase either the hours or duties that he performs.
13. It is unlikely that Mr Arnold will be able to return to full time employment of any kind, but [he] is fit to perform his current part-time employment as described.
14. Mr Arnold is not totally incapacitated for work outside the Police Force, and is fit to perform the duties described above.
15. Mr Arnold is fit to perform restricted duties, avoiding squatting, kneeling, lifting greater than 10 kilograms, and climbing ladders. It would be preferable for him to travel for less than 30 minutes to and from work. He is noted to be fit to perform work in child care for three hours, five days per week, but may increase this to 35 hours for short periods such as school holidays. It has proved not possible to continue performing these hours permanently.
16. Mr Arnold should restrict;
(a) Repeated lifting to less than 10 kilograms.
(b) Should be able to stand or walk for at least 15 minutes per hour.
(c) He should be able to drive for at least 30 minutes at a time.
(d) Prolonged sitting.
(e) Typing and fixed postures at a desk should be unlimited.
17. On the balance of probability Mr Arnold would not be fit to work as a Security Officer, a Security Consultant or an Insurance Investigator. He may be able to perform work as an online Share Trader, General Clerk, Coding Clerk or Out of School Hours Care Worker for potentially up to [15] hours a week. Currently it is my understanding that he is managing 15 hours per week intermittently, increasing the hours during holidays. I am unfamiliar as to the qualifications and work experience for these described occupations."
The "[15]" that I quoted in the last paragraph is my amending what was initially typed as 25, as Dr Hale asked me to do in a supplementary opinion of 29 November 2016. However, there is a problem with that in that the plaintiff gave the doctor a history of working 15 hours per week during school term, but working essentially full time for about 10 of the 12 weeks of school holidays each year. The other problem with the last paragraph which have quoted from Dr Hale is of course he is certifying somebody unfit to do certain activities when he freely admits he is unfamiliar with the qualifications and work to be done in those occupations.
It is clear that since the plaintiff last was granted an increase in his superannuation allowance that his condition has deteriorated. However, by their nature, degenerative conditions increase with the passage of time. One must expect deterioration because of the underlying condition. In this case it is clear from what the parties accepted back in 2003, or as Mr Ower correctly put it, what was determined by the defendant and accepted by the plaintiff, that the plaintiff had an impairment of his back, and a loss of efficient use of each of his legs at or above the knee and that of those impairments, it was common ground between Dr Benanzio and Dr Barrett, some component was for an underlying osteoarthritic condition, or an underlying degenerative process arising idiopathically or constitutionally.
It is clear that because of a non-compensable event in either late 2007 or early 2008 the plaintiff ruptured the anterior cruciate ligament of his left knee, which clearly made that knee worse than it had been. However, the plaintiff's left knee had up until that time always been the worse of his knees. However, the condition of his right knee is now worse than that of his left knee, as, for example, the treatment of the plaintiff's right knee by operation on 6 July 2012 attests, and as the recent medical histories establish. Although the plaintiff's left knee was originally worse than his right knee, and although the plaintiff's left knee has now been affected by a non-compensable injury, the plaintiff's right knee is now worse than his left knee. There is no suggestion as I have already mentioned of any non-compensable injury to the plaintiff's right knee. It could be that because the plaintiff needed to favour his left knee that he threw more strain on his right knee, and that caused the plaintiff's right knee to deteriorate much more rapidly than his left knee.
Looking at all the medical evidence it appears to me that this is not merely a question of aggravation of an underlying condition, but acceleration of an underlying condition. If the whole condition is accelerated, then changes which may have occurred for example at age 70 might occur at age 60, or developments which might occur at age 50 might now occur at age 45. Although operative treatment is performed to relieve symptoms, and to improve function, often operative treatment can accelerate a degenerative condition. A classic example of that is in the low back where, for example, laminectomy and fusion is practiced at the lumbosacral level, causing greater pressure to be applied to the L4/5 disc, leading to its becoming degenerative, and the cause of symptoms sometime after the problem at the lumbo-sacral junction was remedied. Looking at all the medical evidence, it appears to me the plaintiff's osteoarthritis in his knees and his back is much greater than one would expect of the natural progression of such conditions, and it appears to me that not only did the injuries the plaintiff sustained in the course of his police service make the condition worse, they also accelerated the process of the osteoarthritic condition.
I therefore accept that there has been a material change in circumstance since 30 September 2004, in particular in the plaintiff's right knee, and also in particular in the plaintiff's low back. One should compare the radiological investigations of the low back made at the request of Dr Cusi on 18 August 2014 with the CT scan of the lumbar spine performed on 25 July 2000 at the request of Dr Scriven. Furthermore, looking at all the medical evidence and the plaintiff's various complaints from time to time, I am persuaded the plaintiff's ability to work has deteriorated during the period.
It is also almost axiomatic that if the plaintiff's physical capacity to do things deteriorates because of a worsening of his condition, that his ability to perform work also deteriorates with the deterioration of his physical condition. The real question in the current case is whether there has been any economic depreciation in the plaintiff's ability to sell his labour on the open labour market, a question to which I shall turn tomorrow morning.
(ADJOURNED TO FRIDAY 24 FEBRUARY 2017)
At the time PSAC made the decision on behalf of the defendant on 30 September 2004 the plaintiff was unemployed. He subsequently obtained a job with Australia Post. He worked for Australia Post for one week. His total earnings with Australia Post were $95. This was in June of 2010. The plaintiff actually applied for a job delivering mail whilst riding a motorcycle or motor scooter. He believed that work would be between 10am and early afternoon. However, the job that he is actually given was sorting mail commencing work at 4am and finishing at 10am. That required repetitive bending, sorting mail into shelving reaching from above head height to almost the level of the floor. For a man with a bad back that was completely unsuitable work and the plaintiff persisted with the job for only one week.
His next employment was at the Hornsby North Public School providing before and after care for school children who had to be minded before school and/or after school. In the mornings he would work for two hours between 7.00 and 9.00 and in the afternoons he could work between 3.00 and 5.30 or 6.00, that is up to five hours per day. At the Hornsby North Public School the plaintiff was working three or four days per week on average. This was not employment with the Department of Education but employment with a company obviously formed by concerned parents to have their children minded before and after school. The plaintiff told me he started that work in September 2013.
In April 2014 he commenced doing similar work with the Berowra Public School Before and After School Care Service. He did both jobs until October 2015. He then stopped doing the work at the Hornsby North Public School. As I indicated yesterday, the reason for his giving away work at the Hornsby North Public School was because of the young age of his fellow workers whose attention from their duties was distracted by their use of mobile devices causing the plaintiff to do too much of the work himself. He elected therefore to continue working but only at the Berowra Public School where the other staff members "pulled their weight".
Concurrently, the plaintiff found work during school holidays at the Ku-ring-gai Council Vacation Care Centre. That essentially was a fulltime job for about ten weeks a year. I do know from the evidence before me that in the period from 2 January 2017 until 5 February 2017 that the plaintiff averaged $1,106.20 pw gross working for the Ku-ring-gai Council minding children during the Christmas school holidays. The plaintiff, as I understand it, does not always work fulltime during the school holidays for the Ku-ring-gai Council. There are a couple of weeks off in the Christmas period and, as I understand it, he does not always work fulltime for the Ku-ring-gai Council providing child minding services. However, the work was almost fulltime and for about ten weeks per year. The plaintiff told me that he could just cope with the work and gave me illustrations of how, if things became too much for him, he could rest by laying down either on a stage or behind the scenes at an auditorium or outside on the veranda when he was unable to work. However, he did not believe that he could do that work fulltime, that is, for thirty-eight hours per week for forty-eight weeks per year albeit that such work is clearly not available, because children do attend school and vacation care can only be given during the school holidays.
During the financial year ending 30 June 2014 the plaintiff earned $211.96 pw gross. During the financial year ending 30 June 2015 the plaintiff earned $449.62 pw gross. During the financial year ending 30 June 2016 the plaintiff earned $418.65 pw gross. And, during the current financial year, the plaintiff has been averaging $441.26 pw gross. At the current time, that is the average earnings of his work with the Berowra Out of School Hours organisation and the Ku-ring-gai Council. In the financial year ending 30 June 2014 his income was earned from the Hornsby North Community Care Association and the Berowra Out of School Hours organisation. In the financial year ending 30 June 2015 and 30 June 2016 his earnings were from the Hornsby North Community Care Association, the Berowra Out of School Hours organisation and the Ku-ring-gai Council.
The plaintiff urges upon me that I should take the plaintiff's actual earnings as the measure of his ability to earn in accordance with the well-known dictum of Sir Frederick Jordan in Aitkin v Goodyear Tyre & Rubber Company (Aust) Ltd (1945) 46 SR (NSW) 20; [1945] WCR 107. However, the evidentiary basis to sustain that submission has not been established. No evidence was adduced from the plaintiff of what attempts were made to find other work, what other work he thought he might be able to do, and whether he had looked for such work. The evidence suggests the plaintiff was asked by his wife to do the work at the Hornsby North Public School and that lead him to find the work at the Berowra Public School and also with the Ku-ring-gai Council.
There is in the medical evidence, as I referred to yesterday afternoon, a dispute as to whether the plaintiff could do work minding children before and after school for 15 hours per week, which is what he currently does, or for 25 hours per week, which is the finding of Professor Pryor, the vocational psychologist who examined the plaintiff on 28 November 2014 and prepared a fairly lengthy report of 8 December 2014. Commencing at the foot of the first page of his report, Professor Pryor said this:
"Mr Arnold impresses as a sensitive man who takes his life and values very seriously. The experiences in the Police Force questioning his personal uprightness, appear to have left a lasting scar even though this was not part of the classification of his HOD injuries. Parties current emotional malaise I suspect relates to his forays into share and property investing which have reportedly been unsuccessful, to his significant economic detriment and subsequent financial stress. This coupled with his ongoing need for physical treatment had contributed further to his negative affect. Moreover, Mr Arnold has now reached a point at which his domestic responsibilities are probably less time demanding given that his children are older, therefore he is likely to be able to undertake more hours of employment than previously since leaving the Police Force.
However, either subsequent success with his share trading, or the attainment of appropriate employment, in my view, would continue very substantially to the improvement in both his personal adjustment and his interest in social interaction. His presentation behaviour in this assessment suggested that in a relatively supportive context, that Mr Arnold will function well with other people. There was some psychometric data to support this as well."
After his medical discharge, the plaintiff sought that the defendant include amongst his certified infirmities the condition of Post-Traumatic Stress Disorder (PTSD). PSAC refused to do that. The defendant's Disputes Committee refused to do that and the plaintiff made an application to the Industrial Relations Commission, but ultimately, that application was discontinued. Submissions have been made on behalf of the defendant that the plaintiff's psychiatric or psychological problems affect his ability to earn and amounts to a supervening, non-compensable incapacity, the very same issue which arose in Miles.
At the time of the Wood Royal Commission, the plaintiff was working in the State Surveillance Unit. He had commenced working there in October 1990. That involved his carrying out state-wide surveillance and the Unit of which he was a member carried out liaison with the Victorian Police and the Queensland Police in, for example, drug seizure operations. However, the Wood Royal Commission questioned the role of the State Surveillance Unit, and as I understand it, it was disbanded and the plaintiff was transferred to general duties at Pennant Hills on 11 August 1996. There was no allegation of any personal misconduct by the plaintiff himself, and I have dealt with other former members of the State Surveillance Unit who experienced the same sort of treatment as had the present plaintiff. However, because of a veil cast over the State Surveillance Unit, the plaintiff believed, perhaps incorrectly, that his personal integrity was in question.
It is true that the plaintiff has in the past, played the stock market and played the property market and has lost money in both ventures, and that, no doubt, would have hurt him emotionally. The plaintiff believes he has some ongoing problems from his work as a police officer. However, there is no medical evidence that tells me the plaintiff is incapacitated by any psychological symptoms. Rather, a number of doctors refer to the plaintiff's being unhappy and one can understand his unhappiness in having a veil cast over his personal integrity by the Royal Commission of his unhappiness in losing his career as a police officer, his unhappiness in losing money as a result of trading on the share market and in property investment. But there is no suggestion that the plaintiff's psychological state would stop him performing any particular job.
Indeed, as Professor Pryor points out, if the plaintiff obtained more meaningful work than he now has, such would improve his psychological state and no doubt give him greater contentment, and therefore perhaps give him a little bit more happiness than he currently has. I am not persuaded on the balance of probabilities that the plaintiff's ability to work is now in any way affected by any psychological, psychiatric or emotional problem.
The defendant also submits that the plaintiff is partially incapacitated at least because he suffers from migraine headaches. That I am unable to accept. The plaintiff told me of the onset of migraine headaches when he was a member of the police force, and there is no suggestion that he needed to take any time off work as a result of migraine headaches. The plaintiff currently takes medication for his migraine headaches, and there is really no evidence to suggest that the migraine headaches would stop the plaintiff performing work which was otherwise available to him.
Likewise the defendant submits that the plaintiff's groin problem caused by the nerve trapped as a result of the herniorrhaphy would interfere with his capacity to earn his livelihood, but as I sought to point out yesterday, that is a red herring in that the plaintiff experiences symptoms during sexual activity only, and there is no suggestion that that in any way would interfere with his capacity to earn.
The defendant also submits that the more recent onset of plantar fasciitis would incapacitate the plaintiff for some forms of work, but when the plaintiff does work full time with the Ku-ring-gai Council, he is able to do that work, albeit that he may have sore feet. Again I am not persuaded that the plaintiff's complaints about sore feet would interfere with his ability to work at the current time.
The defendant also submits that the consequences of the rupture of the plaintiff's anterior cruciate ligament of his left knee would also interfere with his current ability to perform work that he might be able to perform if his only problems were his HOD problems. However there is some evidence about that. In a supplementary opinion misdated 19 February 2016 for 19 February 2017, Dr Hale, the plaintiff's treating orthopaedic surgeon said this about the plaintiff's left knee:
"Anterior cruciate ligament injuries are predisposed to the development of some osteoarthritis, but the extent to which it would contribute to future problems with Mr Arnold's left knee would be at maximum in the vicinity of 10%, particularly due to the fact he had undergone an anterior cruciate reconstruction."
A little late in the same supplementary opinion, Dr Hale said this:
"As stated at maximum, I would consider the anterior cruciate ligament injury only adding up to 10% of the potential risk for osteoarthritis in the future, noting that he had already undergone a high tibial osteotomy."
The same issue was addressed for the defendant by Dr Tim Anderson in his report of 13 September 2016. Dr Anderson said this:
"The ruptured ACL in 2008 to his left knee would have resulted in further damage to his knee. The associate repair procedure, whilst very necessary, would have contributed to this as well. Therefore, this event, which is a non HOD issue, would have added to the deteriorated state of his left knee. In terms of how much, I would suggest that we would be looking at somewhere between 10% and 20% of the total state of the left knee. This, however, is extraordinarily difficult to assess, but this is likely to be as close and as accurate as it is possible to be."
It must be recalled that antecedent to the rupturing of the plaintiff's anterior cruciate ligament, he had osteoarthritis in his left knee. The osteoarthritis in his left knee had been initially more severe than the osteoarthritis in his right knee. He had undergone a high tibial osteotomy on the left knee. If anything one would expect that the pre-existing condition of the plaintiff's left knee would have predisposed him to the rupture of the ACL in 2008. There was then a repair of the anterior cruciate ligament to try to remedy the defect caused by the rupture, but, consistently what I said yesterday, that repair itself could contribute to the ongoing osteoarthritis itself. All in all, I accept that the rupture of the ACL of the plaintiff's left knee in 2008 contributes about 10% of the current condition of the plaintiff's left knee. However, it must be borne in mind that of the plaintiff's knees, his right knee is now more greatly affected than the left. His right knee is the source of more ongoing problems insofar as the plaintiff's knees cause him a problem, it is more likely that they are dictated by his right knee than his left knee.
In the circumstances, I am not persuaded on the balance of probabilities that the plaintiff's left knee condition, made a little worse by the injury of 2008, would cause the plaintiff to be unable to do any work which he could otherwise do if his only injuries were his HOD injuries. In other words, looking at all of the evidence I am not persuade on the balance of probabilities that there is some ongoing, supervening non compensable incapacity as there was in Miles's case.
As I said, the real issue is how to measure the plaintiff's incapacity on the open labour market referrable to his HOD injuries. I am required by the section to ascertain what the plaintiff would have earned had he not been injured outside the police force. I have had cause to observe in earlier judgments, as I observed during the course of addresses, that police officers uninjured could often earn more on the open labour market than they would serving in the police force, because the police force has the stability and permanence of any long term public service job, and no one postulates that the work of a policeman will in due course become unnecessary in our society, unfortunately.
The report of Professor Pryor provides me with a large amount of economic data. That data speaks as at December 2014. It is therefore appropriate, in my view, to consider economic issues at that time, that is at the end of 2014. From exhibit X the Crown Employees (Police Officers - 2014) Award, published on 28 January 2016, I know that as at December 2014 the plaintiff's base salary as a leading senior constable of police, plus the 11.5% loading, was $100,066 per annum. The plaintiff would also have earned shift allowances, and shift allowances are governed by cl 49.1 of the Award. The shift allowances range between 10% and 17.5%. Allowing roughly 10% for shift allowances and rounding the matter down, one could estimate that as at December 2014 the plaintiff would have been earning $110,000 per annum gross, or $2,115 per week gross.
Amongst the jobs that Professor Pryor believed that the plaintiff would have been able to do uninjured is the job of a security advisor/consultant. As at December 2014 that paid a gross weekly salary of $2,129. Another of the jobs was an insurance risk surveyor which paid a gross weekly salary of $2,330. I do not believe the plaintiff was qualified by his work in the police force to work as an insurance risk surveyor. Inter alia, an insurance risk surveyor inspects damaged buildings, equipment and motor vehicles and estimates the cost of repairs, and estimates business losses resulting from fire, theft and business disruption. The plaintiff had no experience in assessing damage to vehicles and buildings, and assessing the costs of repairs to buildings and vehicles, indeed other equipment such as plant and machinery in a factory. That requires expertise which the plaintiff does not have.
However, I am persuaded that the plaintiff did have the ability to work as a security advisor or consultant because of his experience in the NSW Police. The précis of the job provided by Professor Pryor is this:
"A Security Consultant advises clients on security requirements, and recommends and designs security specifications. A Security Consultant is included in the job category of Security Officers and Guards. For this occupation some of the tasks performed may include:
• carries out threat assessments on properties or companies;
• audits existing security systems;
• makes recommendations to rectify and improve security; conducts surveillance;
• designs specifications to meet security requirements;
• monitors security installations to ensure compliance;
• may carry out electronic debugging or information security operations;
• may carry out internal audits or other security functions;
• may evaluate security system tenders."
It ought be clear from what I have said that not only was the plaintiff a leading senior constable of police, but he worked both in uniform, that is in general duties, and in plain clothes, in particular when he was in the State Surveillance Unit. Prior to joining the State Surveillance Unit he had worked in plain clothes at the Dee Why Police Station, or in the Dee Why Patrol, investigating breaking and entering offences, theft offences, and drug offences. His work for some six years in the State Surveillance Unit would clearly have exposed him to major crime and the need for security. Many of the activities of a security advisor/consultant are intellectual, based upon experience. I am confident he could have done such work outside the police force, bearing in mind his experience in the police force. That is also the view of Professor Pryor himself.
However, Professor Pryor believes the plaintiff is now still capable of doing that job. I am not so persuaded. Carrying out security assessments often involves physically inspecting premises, and looking for flaws in the security arrangements applicable to, for example, buildings or premises. To adequately assess the need for security in a building, it may be necessary for him to crawl into ceilings, to climb up and down stairs, to descend for example staircases, fire stairs in particular, to crawl beneath buildings to ascertain whether access could be gained to a property from beneath, often to crawl in confined spaces, and for example to ascertain whether any access could be gained to the building from a sewer or drain. Furthermore a security advisor/consultant is required at time to conduct surveillance. If that is physical surveillance it may require the plaintiff to hide, to confine himself in some space to carry out the surveillance. He may need agility to obviate tension and agility and speed are things the plaintiff does not have. I am not aware of what exactly is necessary to do to carry out electronic debugging, but it may be necessary for the plaintiff to climb ladders and the like to see whether any bugs have been placed in ceiling or light fittings or the like, and that again is something the plaintiff ought not do.
I am not persuaded on the balance of probabilities that the plaintiff is now able to do the work of a security advisor/consultant. However uninjured he would be able to do that work. Therefore one part of the equation that the plaintiff must establish has been established: as at December 2014, he was able to earn uninjured in the open labour market about $2,129 per week gross.
The question then becomes what is the plaintiff's ability to earn at the current time? Professor Pryor believed the plaintiff was able to work for 25 hours per week as an out of school hours care worker, and in that employment could earn $601.97 per week gross. The plaintiff's ability to earn is not limited to 15 hours per week as an out of school hours care worker, because out of hour school care work is only available for approximately 40 weeks a year. For 10 weeks a year, work is available full time with the Ku ring gai Council, and I have already commented on what the plaintiff can earn during such weeks, the amount that he did earn in January of this year, an average of $1,106.20 per week. It appears to me that I should accept the assessment made by Prof Prior. The plaintiff is capable of earning $601.97 per week working as an out of school hours care worker averaging 25 hours a week.
If my mathematics be correct, which is always problematic, $601.97 per week compared to $2,129.00 per week indicates 28% of the maximum. If I round that up to 30%, that means the plaintiff's ability to earn on the open labour market has been reduced by 70%. A reduction in the plaintiff's ability to earn of 70% would entitle him to an additional amount pursuant to s 10 (1A)(b) of the Act of 8.575%, so that the plaintiff's superannuation allowance should be increased to 81.325%. That, in my view, is a proper assessment of the plaintiff's entitlement under s 10(1A)(b) of the Act.
Any further reasons for judgment required Mr Hammond?
HAMMOND: No, your Honour, and I checked those figures and I came up with the same figures.
HIS HONOUR: Any further reasons required, Mr Blume? I have enquired of the representatives of the parties if any further reasons for judgment are required. I am told that none is so required.
For those reasons, I set aside the decision of the defendant made by its delegate the Police Superannuation Advisory Committee on 24 September 2015 and I determine that the plaintiff's superannuation allowance be increased to 81.325% of the attributed salary of his office. That decision takes effect on 29 April 2014. I order the defendant to pay the plaintiff's costs.
(SUBMISSIONS CONCERNING COSTS)
For 22 years, I have been observing that nothing excites the zeal, the ardour and the passion of the legal profession more than an argument about costs. The present proceedings were called over by her Honour Judge Quirk on 4 October 2016. Her Honour set the matter down for hearing for two days commencing on 14 December 2016. Her Honour made no order as to when the medical reports were to be served, an order which I generally make when I set matters down for hearing. In the absence of any particular order made by her Honour, the parties were required to comply with the rules. Schedule 11 Part 4 of the UCPR provides special rules for the Special Statutory Compensation List. Clause 43 provides this:
"The provisions of Division 2 of Part 31 apply to proceedings in the List, subject to the following modifications:
(a) each party to proceedings must, as soon as possible after their receipt and at least 28 days before any hearing date is allocated to proceedings, serve experts reports and hospital reports on each party who has an address for service in the proceedings,
(b) a party who requires the attendance of a person for cross-examination under rule 31.19 must inform the District Court and all other parties to the proceedings that the party has done so or wishes to do so at a directions hearing before any hearing date is allocated to the proceedings."
Accordingly, at the time that her Honour set the matter down for hearing, no further medical evidence should have been served.
Nevertheless, the plaintiff did so. In an affidavit sworn on 8 December 2016, the defendant's solicitor Mr Blume said this:
"3. By facsimile transmission of 8 December 2016, I received the attached letter with three reports of Dr Hale referred to therein comprising eleven pages (Annexure 'A'). The Schedule referred to in the covering letter was not received…
5. It appears that the report dated 17 November 2016 was in response to a request dated 26 October 2016 and an examination of 2 November 2016, the report of 29 November 2016 was in response to a request dated 22 November 2016 and the report of 6 December 2016 was in response to a request dated 2 December 2016."
In other words, all of the medical evidence served by facsimile transmission on 8 December 2016 were generated after the matter was set down for hearing when the Rules require that all reports be served prior to the hearing date being allocated. In the circumstances, I vacated the hearing date on the defendant's application on a notice of motion returnable on 12 December. The reason for the adjournment was because the defendant could not meet the medical evidence served by the plaintiff on 8 December 2016, less than a week prior to the date fixed for hearing. In the circumstances, the plaintiff is to have no costs of the notice of motion filed by the defendant on 8 December 2016, nor any costs thrown away by the consequent adjournment.
On 8 December, the plaintiff served an offer of compromise by facsimile transmission. It was a formal offer of compromise pursuant to UCPR 20.26. The plaintiff also relied on the principles in Calderbank v Calderbank [1975] 3 All ER 333. The plaintiff offered to compromise by having his pension entitlement increased to 80% of the salary of his office, backdated to 15 April 2014, the date on which he made his application to increase his superannuation entitlement. Earlier today, I increased the plaintiff's pension to 81.325% of the salary of his office but with effect from 29 April 2014, the day on which the defendant received the plaintiff's application for an increase in his superannuation allowance.
The offer of compromise was open until 4pm on Tuesday 13 December 2016. It is to be remembered that the matter was, as at 8 December 2016, listed for hearing on Wednesday 14 December 2016. UCPR 20.26 (5) provides this:
"The closing date for acceptance of an offer:
(a) in the case of an offer made two months or more before the date set down for the commencement of the trial, is to be no less than 28 days after the date on which the offer is made, and
(b) in any other case - is to be such date as is reasonable in the circumstances."
The defendant is the trustee of the Police Superannuation Fund, established by the Police Regulation (Superannuation) Act 1906. Its decisions are made by a Board. The defendant has the power to delegate its responsibilities under the Act and, in general terms, delegates its powers to the PSAC established under the Act. It is well known to all those who practice in this List, including the plaintiff's current solicitors, that the defendant's Board meets monthly and that PSAC meets monthly and neither of those entities moves swiftly, rapidly or with any celerity whatever. The simple fact is that Boards and Committees generally do not act quickly and need to have provided to them written advice so that they can act, especially when they are, in essence, acting as trustees.
In the circumstances, the offer of compromise was not open for a reasonable time. In the circumstances, an offer of compromise, it appears to me, should be made if used in this List at six weeks or more prior to any acceptance being required so that the relevant entity, whether it be the Board or PSAC, can make a decision about the offer of compromise and allowing sufficient time for written advice to be proffered to either the Board or PSAC. In the circumstances, I do not accept that the offer of compromise served under cover of letter 8 December 2016 was reasonable. The application for indemnity costs is, accordingly, refused.
[3]
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Decision last updated: 11 May 2018