Bennett v SAS Trustee Corporation

Bennett v SAS Trustee Corporation - [2003] NSWCA 136 - NSWCA 1942 case summary — Zoe

JUDGMENT:

This is an appeal by Kevin Bennett against the SAS Trustee Corporation brought under s 31 of the Police Regulation (Superannuation) Act 1906 ("the Act") against a determination of the respondent that the appellant Mr Bennett is entitled to an increase in his superannuation pension to 77 per cent of his salary of office at the date of his discharge from the Police Service. The appellant in his Application for Determination (which was possibly an incorrect way of commencing these proceedings, but no point is taken as to that by the respondent) seeks simply that I determine an annual superannuation allowance in a percentage above 77 per cent of his salary of office as at the date of discharge.
The issue kindly defined for me by Mr Ower for the respondent is simply the entitlement of the appellant to any such increase, but Mr Ower made it clear at the commencement of the proceedings that he proposed to argue that an appeal of this kind is a hearing de novo in which I am free to decrease as well as increase the superannuation pension granted to the appellant by the respondent, against the determination of which he now appeals. I shall deal with that question after considering the facts in this case.
The appellant gave evidence, and he struck me as a witness of truth and indeed the contrary was not suggested by Mr Ower in his submissions, and I accept the appellant's evidence wherever relevant.
The appellant is 61 years of age and was born on 14 February 1942. He joined the Police Service on 28 October 1963. He was what he calls a "frontline" policeman for 37 years. He was discharged as a result of an "infirmity" within the meaning of the Act on 6 January 2000. That infirmity is the subject of Exhibit 3, a certificate under s 10B(3)(a) of the Act by which the Commissioner of Police decided that the appellant suffered from the infirmity of "lumbodiscalpathology" as specified in a certificate of the Police Superannuation Advisory Committee dated 28 September 1999, and that this infirmity was the result of the appellant being hurt on duty on 21 December 1993.
The appellant left the Police Force as an incremental (second class) sergeant. He always did frontline policing work, if I may so call it, following his own description, and it was physically demanding.
The appellant suffered injury as alleged in the Application for Determination, and as is not contested by the respondent (obviously so in view of the Commissioner's certificate on 21 December 1993, although 23 December 1993 is erroneously stated in the Application for Determination as being the correct date of injury). In fact the circumstances of injury are more particularly described in the medical reports to which I shall come in a moment, although in view of the nature of the issues in this case the appellant did not describe it to me in detail in his evidence. Apparently a wheeled office chair on which he was sitting on the day in question slipped, and he fell heavily onto his buttocks and suffered a back injury.
Two recurrences occurred in 1994 and 1996 in which I apprehend the appellant suffered further back pain. In fact he had first suffered back pain in 1989 while a member of the Tactical Response Group. Eventually he was retired medically unfit in circumstances described above, before which time he was performing work for some time on restricted duties of a clerical kind for four hours per day. Before he was put on these restricted duties by his doctor he was working as a duty officer with the rank of inspector. The duties of that office were not described to me in his evidence but it was agreed in submissions by Mr Ower and Mr Klarica, who appeared for the respondent and the appellant respectively, as I understood them, that these duties involved some degree of clerical and supervisory work, as well as active police work of a more physical kind. One way or the other, the appellant was performing these duties at the time when he was retired medically unfit, if I may so put it, from the Police Service, as described above.
Intercurrently the appellant came to operation for his back injury, and I shall describe that surgery when dealing with the medical reports. It was not dealt with in the appellant's evidence, but there was no need for that as the medical reports adequately set it out, and there is no contest as to its nature, and that it left the appellant with significant continuing residual disability on the open labour market.
Since leaving the Police Service the appellant has not worked. He has been approached by his son, who runs a security firm, to work with him, but apparently the work involves obtaining a security licence and what is called "static work" involving standing for long periods. The appellant does not think that he could perform such work. He told me that he had in fact inquired at his local bowling club to which he belongs for a job as a doorman when I suggested to him that such work may be within his capacity, and he said he was informed that, at that club at any rate, one had to have a security licence and to be able to grapple with unwanted entrants to the club, and he felt himself unable to do this.
The appellant says that he informed himself principally as to the nature of the work he was considering after discharge by inquiring of friends who were doing the work, and that is how he acquired his information as to what was required in security work, apart from what his son told him. He has not applied for clerical work of any kind, but he considers that he could not do it because it involves computer work in which he has no skills. He says that in any event he has been discouraged from applying for such work because in his opinion a person of his age with a previous back injury, which he would have to disclose, would be most unlikely to obtain employment.
The appellant still suffers significant back and right leg pain which restricts him in many extracurricular activities. Now he only plays golf on the basis of nine holes at a time, and even then only occasionally, whereas before he was injured he used to play 18 holes regularly. He assists his wife around the house, but finds that if he does such things as mowing the lawn he pays for it the next day in the form of increased symptoms. He does most of the cooking in the house and is well able to do that. He generally assists his wife wherever he can, nevertheless he says whenever he does anything strenuous he pays for it the next day, as he put it. This seems to be a reasonable statement in view of what he has said in the medical reports about the nature of his condition and the operative means by which his treating surgeon has sought to fix it without, it would appear, complete success.
The appellant was cross-examined by Mr Ower ably for the respondent, and I hope I will be excused if I do not cover every aspect of that cross-examination but only those which particularly affect my determination of the appellant's rights.
The appellant conceded that he would be able to work for up to 30 hours per week if he could find a suitable job of a clerical kind, in which, as I understood him, he did not have to stand or sit for excessive periods or bend or lift heavy objects. He conceded that he had made little attempt to find such work, if any at all, because of his apprehension that he would be unlikely to obtain it in view of his age and previous injuries, once disclosed. He was not prepared to concede that he could do security work if it involved standing for long periods. He conceded to me that he could work as a club doorman provided that he did not have to grapple with offenders and could sit or stand as he liked. He conceded that he had some clerical skills from his work in the Police Service involving such things as filing, counter work, preparing reports and typing on a typewriter, but he denied having computer skills and there is no reason to suggest that he has any, although he conceded to me that if somebody showed him how to work a simple word processing program he may well be able to manage it.
The appellant said in re-examination that the clerical work he did in the Police Service involved opening files and some degree of lifting and bending, and that he is restricted as to that and was only doing clerical work for four hours a day, as noted above, in the last two years of his police service. He said that even after his operation he was restricted in bending and similar activities.
Coming to the medical evidence, Exhibit A is the applicant's medical reports, and the first document in it is a report of Dr John Douglas, orthopaedic surgeon dated 19 December 2000, Dr Douglas having examined the appellant for his solicitors. Dr Douglas traced how the appellant was hurt on duty, as indeed has been found by the Commissioner of Police, when a wheeled office chair slipped and he fell heavily on his buttocks, and how as a result he came to operation for a lumbar disc injury at the hands of Dr John Cummine, with whose reports I shall deal in a moment. Dr Douglas felt that the appellant was partially incapacitated for work outside the police force but fit for sedentary work in an office with freedom to move around when necessary. He thought he may be able to do that for eight hours a day but certainly would be able to work for four to six hours per day. He said the appellant should not undertake an occupation requiring long periods of standing, repeated bending or lifting, long distance walking, pulling or pushing or twisting his back. He did not think the appellant's condition would improve. He said that he had to qualify his answers because the appellant's age was 58 (at the time he saw him, the report being dated 19 December 2000) and he had worked for many years in the police force and had no experience of other work, but said nevertheless that general office work of a simple nature would be available to the appellant, and that he may need some rehabilitation to bring him up to date on computer work. Assessments of permanent loss in relation to the back and legs were made, which do not need to concern me at this stage as they do not translate readily to ability to work.
Dr Shone, the appellant's treating general practitioner, who also, I observe, is according to his letterhead a Fellow of the Royal College of Surgeons of Edinburgh, wrote a report of 19 September 2000, also part of the exhibit. After tracing the same matters as Dr Douglas did in relation to the appellant's injury and treatment, Dr Shone expressed the view that the appellant was not totally incapacitated for work outside the police force and was capable of most forms of office, clerical and sedentary work avoiding heavy lifting, improper bending, squatting, rising and prolonged standing and sitting.
Dr Brian Stephenson, orthopaedic surgeon, again qualified by the appellant's solicitors, wrote a report tracing the same matters as Dr Douglas and Dr Shone had in relation to the appellant's injury and treatment and expressed the view, as at 2 September 1999, the date of the report, that the appellant has work related disability as regards the back and the right lower limb as a result of being hurt on duty as described above, and was not fit for frontline police work and fits within the category of "incapable from infirmity of body of discharging the duties of his office." Dr Stephenson thought the appellant may be able to do lighter work, such as office work or light clerical work or light supervisory or management work, should he continue in employment, and may need some rehabilitation assistance in that respect and is certainly not fit for frontline police work. He too made some back and leg loss assessment which do not need to concern me here for reasons already indicated above.
Last in the exhibits were a number of reports from Dr John Cummine, the appellant's treating orthopaedic surgeon. Dr Cummine, in a medico-legal report of 1 August 2000 to the appellant's solicitors, summarises his previous treating reports, which are also in the exhibit, and states that he saw the appellant and subjected him to various investigations, and eventually performed on 2 February 1999 a right L5 laminectomy with decompression of the L5/S1 nerve roots on the right side. He said the post-operative course was uncomplicated but nevertheless felt as at the date of the report, 1 August 2000, that the appellant was partially incapacitated for work outside the Police Service as a result of infirmities but capable of most forms of office, clerical and sedentary work, light and selected duties avoiding activity that involves prolonged standing, prolonged sitting, heavy lifting, repetitive lifting and repeated bending, stooping, squatting and rising.
Exhibit 1 was the respondent's medical evidence and the first report in it was from Dr James Vote, orthopaedic surgeon, dated 31 July 2001. Dr Vote, after tracing the same matters as the other doctors did in relation to the injuries and their treatment, opined that the appellant would be incapable of performing heavy work or work that involved running, jumping or twisting or any major physical effort with regards to his back. He thought that given the opportunity, the appellant would be able to perform light to moderate manual work on the open labour market, either part-time or full-time, if such were available, and that ideally this should be part ambulatory and part sedentary and not involving any major physical stress.
Last in the exhibit was a report of Dr Tim Anderson, a specialist consultant occupational physician dated 27 May 2003, and after tracing the same matters as Dr Vote did, he expressed the view that the appellant is not able to return to the full duties of his previous occupation as a police officer, but is able to work in a sedentary or semi-sedentary office based occupation, and that he should be easily able to work at least 30 hours a week, providing this starts off gradually.
There is little disagreement between the doctors, as can be seen on the recitation of their opinions set out above. I think Dr Cummine was perhaps, with great respect, infected with a degree of surgical optimism when he expressed his opinion about the appellant's ability to work. Dr Douglas and Dr Anderson on both sides of the record seem to agree that some degree of restriction of the appellant's work hours is appropriate, and I am inclined to agree, as I am with the views of most of the other doctors, as I understand them, that sedentary or semi-sedentary office work without significant computer work and without bending, heavy lifting or other stress and strain on the low back is appropriate. How that translates to an entitlement in this case is something I shall trace in a moment after dealing with the legal issues.
Mr Ower's submission that the hearing is a de novo one must first be dealt with. He bases this on s 21 of the Act. Subs (1) deals with the entitlement of a person aggrieved by a decision made by the present respondent inter alia to appeal within six months to this Court. Subss (2) and (3) deal with machinery matters and subs (4) reads: The Compensation Court, after considering an application under this section, may make a determination that the decision of STC or the Commissioner of Police, as the case may be, in respect of which the application is made: (a) be confirmed, or (b) be set aside and replaced by a different decision made by the Compensation Court.
Subs (5) reads: The Compensation Court shall not make a decision referred to in subs (4)(b) unless STC or the Commissioner of Police, as the case may be, could pursuant to this Act make that decision.
Subs (6) reads: Where the Compensation Court makes a decision referred to in subs (4)(b), that decision shall, for the purposes of this Act, be deemed to be made by STC or the Commissioner of Police, as the case may be, and shall be carried into effect.
This provision seems to me to be analogous to that dealt with in a decision to which I drew the attention of the parties, R v Longshaw (1990) 20 NSWLR 554. Mr Ower's submission is, of course, that the statutory provisions quoted above mean that this Court is to hear the matter de novo and make its own decision and that, provided within s 21(6) it does not make any decision which could not have been made relevantly by the present respondent, it has complete jurisdiction to make such decision as to it seems fit in relation to the subject matter of the appeal, the level of the appellant's superannuation pension as a result of being hurt on duty. Mr Klarica argued faintly to the contrary effect but eventually conceded that Mr Ower was probably right.
In Longshaw what was being considered was s 131AB of the Justices Act 1902 as it then stood. At 557-558 of the reasons of Gleeson CJ, with whom the remainder of the Court of Criminal Appeal agreed, the relevant provision, s 131AB, as set out in subs (1), gave a right of appeal to the Director of Public Prosecutions to appeal to the District Court against any sentence imposed by a justice or justices in a Local Court, and subs (2) read: The District Court may, in its discretion, do any one or more of the following: (a) confirm, quash, set aside or vary the sentence; (b) impose such sentences may seem proper to the District Court; (c) exercise, by order, any power which such justice or justices might have exercised.
Subs (3) read: Any such sentence varied or imposed by the District Court, or any such order made by the District Court, shall have the same effect and be enforced in the same manner as if it had been imposed or made by such a justice or justices.
Subs (4) read: The District Court may not - (a) vary a sentence so that the sentence as varied could not have been imposed by the justice or justices concerned; or (b) impose a sentence that could not have been imposed by the justice or justices concerned.
Subss (1) and (2) of s 131AC dealt with machinery matters and subs (3) read: On an appeal, new evidence or information may be given with leave of the District Court but may only be given by the prosecution in exceptional circumstances.
In those circumstances the Court of Criminal Appeal held that a full appeal de novo was empowered and that s 131AB(2) quoted above empowered the District Court in its discretion not only to confirm, quash, set aside or vary any sentence or impose such sentence as may seem proper, but also to exercise any power which the justice or justices could have exercised.
This decision seems to me to give helpful guidance as to how the present provision, s 21 of the Act and in particular subs (4), should be interpreted. It is cast in very similar terms to the provisions under consideration in Longshaw, and the same applies to subss (5) and (6) to which I have referred. I hold that the present hearing is a de novo one in which I am empowered to decrease the appellant's superannuation pension as well as increase it if I see fit. An important difference from the situation in Longshaw is that there was no previous hearing with evidence called when the respondent made its determination, so the parties are not here limited to the evidence available to the respondent at that time.
Mr Klarica submitted that the procedure usually followed in the District Court when persons convicted by justices appealed against a sentence, and the Court was minded to increase it, namely what is called a Parker direction whereby an appellant is given time to obtain obstructions to withdraw the appeal, should be followed in the event of my considering that the appellant's pension should be decreased. I have not come to that view, so there is no need to consider that question, but one would have thought that ordinary procedural fairness requires such a direction or opportunity, even though the liberty of the subject is not involved in the present statutory context.
I now proceed to consider the appropriate quantum of the appellant's superannuation pension. The applicable provision is s 10(1A) of the Act which relevantly reads: Subject to this section, the annual superannuation allowance for a disabled member of the police force is - (a) an amount that is equal to 72.75 per cent of his salary; (b) except that where par (c) applies, an additional amount that is: (i) not more than 12.25 per cent of his salary of office; and (ii) commensurate, in the opinion of the Board, with his incapacity to work outside the police force ...
Helpfully, this provision was recently considered by the Court of Appeal in Lembcke v SAS Trustee Corporation [2003] NSWCA 136 where Santow JA, with whom the remainder of the Court agreed, resolved a conflict of authority in this Court by agreeing with the decision of Curtis J in that case. Curtis J's approach, with which his Honour agreed (the remainder of the Court of Appeal in turn agreeing with him) is set out at par [16] of the reasons of Santow JA.
The steps required are firstly to determine the percentage diminution of work capacity looking at that solely by reference to capacity for work outside the police force (subpara (i))and then (subpara (ii)) to multiply that figure by 12.25 per cent. Subparagraph (iii) sets out a step the parties do not here require me to take, namely to apply that percentage to pre-injury earnings. I am told by Mr Ower that the respondent will attend to that in the event of the appeal succeeding, and Mr Klarica is content with that approach. The final subparagraph, subparagraph (iv) Santow J then refers to adding the result of the calculation to the base rate of 72.75 per cent to derive the total pension, referring obviously to subparagraph (a) in subs (1A) of s 10, to which I have already referred.
Applying that approach to the medical evidence, it is my opinion that solely by reference to capacity for work outside the police force, the appellant has a 60 per cent diminution of his work capacity. I was at first inclined in argument with counsel to the view that such diminution should be set at 50 per cent, which in Mr Ower's submission was the very highest figure appropriate, but Mr Klarica pointed out with some force something I had earlier overlooked in my exchanges with counsel, which was that the appellant on medical advice was only working for four hours per day in clerical work when he left the police force medically unfit, even though various doctors talk about his being able to work for up to six hours a day, in particular Dr Douglas, who however qualifies his remarks in this respect by talking about "four to six hours a day", and Dr Anderson.
Mr Ower urges that I simply translate a work capacity of six hours per day, which he says is proper in the circumstances, taken over a full week, to diminution of work capacity and find either that it amounts to 25 per cent diminution thereof, as he initially submitted, or at the most 50 per cent. He says that 60 per cent would be inappropriate and would overlook the views of the doctors generally, and in particular the views of those who consider that while the appellant could not work a full day, he could work for up to six hours per day.
Mr Klarica submits that the clerical work the appellant did before leaving the police force was rather restricted, and draws my attention to the fact that on medical advice (not contradicted in any way by evidence from the respondent, although it comes only from the appellant's mouth) he was only working for four hours per day in that clerical work. I do not think the work the appellant did before leaving the police force by itself should determine what I do in this case, but it is a relevant piece of evidence, alongside the remainder of that of the appellant as well as the medical opinions in evidence on both sides of the record.
I have come to the conclusion, giving that last mentioned piece of evidence some but not crucial weight, that it should, along with all of the medical evidence and the appellant's own evidence, require a determination that the appellant has a diminution of work capacity slightly over 50 per cent on the open labour market. I must of course consider his age in that regard, because it is a relevant circumstance although it is not a crucial one. After all any man out of work at the age of 60 or thereabouts is likely to experience resistance from employers hoping to find younger workers, and that is not something in any way unique to injured persons generally or to the appellant in particular.
As against that, having been hurt on duty during his police service the appellant is more disadvantaged as a result of being so hurt than a younger person would be, with perhaps more inherent capacity to attract employers on the open labour market for that reason alone. He says, and I accept, that from time to time, if he did obtain a job, he would from time to time be unable to turn up for work for one or even a few days because of back pain. It is true that he has had periodic exacerbations of his back pain in the Police Service, and I see no reason why he would not have them in any other job, if he obtained one, in the future. The medical reports certainly talk about activities in which he should not engage which are quite numerous, and it may well be that at some time the appellant, if he obtains employment, overreaches himself and does suffer back pain again, so that he is unable to attend and perform work which is otherwise suitable for him for a few days.
The approach I find most helpful in this case is that of Drs Douglas and Anderson, and implementing those which talk specifically about hours of work, and in particular Dr Douglas' view that four to six hours per day for five days a week is the appellant's true capacity to perform selected light duties, I think 60 per cent diminution of the appellant's capacity for work on the open labour market is an appropriate view, and I so find. Multiplying that number by 12.25 per cent as required by the subsection discussed above results in a product of 7.35 per cent. Adding that to the appellant's present pension of 72.75 per cent results in a total pension entitlement of 80.10 per cent.
Exhibit 2 is the respondent's notification to the appellant of the result of his application to it for an increase in his pension by which the entitlement against which he presently appeals, 77 per cent of his salary of office at the date of discharge payable from the date of application 10 May 2001, was conveyed to him. The respondent by its counsel Mr Ower quite properly concedes that any increase I may order in the appellant's pension should operate from the date on which he applied to the respondent for increase as set out in Exhibit 2, namely 10 May 2001.
I make the following orders: 1. Appeal upheld. 2. Determination of appellant's pension by respondent of 77 per cent of his salary of office at date of discharge set aside. 3. Such determination is replaced by a determination that such pension be increased to 80.1 per cent of appellant's salary of office at date of discharge from date of application to respondent for increase in such pension, namely 10 May 2001. 4. Respondent to pay appellant's costs. Mr J Klarica instructed by Walter Madden Jenkins appeared for the applicant. Mr T Ower instructed by Brian Matthews appeared for the respondent.

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