Collins v SAS Trustee Corporation

Judgment 1The plaintiff, Mr Andrew Mark Collins, is a former Senior Constable of Police. He was attested as a Probationary Constable of Police on 26 July 1985 and thereupon became a contributor to the Police Superannuation Fund established under Police Regulation (Superannuation) Act 1906 (the Act). 2On 23 February 2000, the Police Superannuation Advisory Committee established under the Act certified that the plaintiff was incapable of discharging the duties of his office on account of the infirmities of Post Traumatic Stress Disorder [PTSD] and Major Depression. After litigation in the Compensation Court of New South Wales, the Commissioner of Police determined that the suffering by the plaintiff of the infirmities of PTSD and major depression was caused by his having been hurt on duty. A formal notification says that the notional date of injury was 4 July 1999 but that appears to be an error, as it appears that the date on which the plaintiff last performed work as a Senior Constable of Police was on 4 July 1997. The Commissioner of Police's decision was formally notified on 8 February 2002. 3In the meantime, the plaintiff had been medically discharged from the New South Wales Police Force on 11 May 2000 following upon the certification by PSAC. The plaintiff then applied for an increased superannuation pension pursuant to s 10(1A) of the Act. On 29 May 2003 PSAC declined the plaintiff's application for an increase in his pension benefit. However, there was then litigation in this Court and, as a result of that litigation, the defendant agreed to pay to the plaintiff an additional amount of 4.25% of the salary of his office, increasing the basic HOD pension (72.75%) to 77%. 4On 27 October 2010 the plaintiff made a further application to the defendant under s 10(1A). Eventually, PSAC, acting as the delegate of the defendant, decided on 25 August 2011 to increase the plaintiff's HOD pension to 80% of the salary of his office as at the date of his medical discharge. The plaintiff was aggrieved by that decision and has brought an application to this Court seeking an increase to eighty-five percent of the salary of his office or some such other sum as the Court might determine above the eighty percent awarded by the defendant in its decision of 25 August 2011. 5On the evidence before me there is little to indicate the basis on which the plaintiff received his initial HOD pension. Such evidence that there is, is contained in a report of Dr TJ Woolard of 12 October 2004. It is this: "He reports that the major precipitating incident was [in] March 1989. There was an accident on the F3 freeway, a truck had hit a car crushing a young child in the back seat. The child subsequently died. This caused him a degree of psychological disturbance, flashbacks, nightmares, insomnia - he did not seek treatment following that incident. Some years later the problem became worse, he remained symptomatic, contacted the Police Welfare [Branch]. However, he attended a large number of fatal accidents, he identifies a fatal accident where a motor cyclist was killed. He was drinking to excess and was violent at times. He felt suicidal at times. He was seen by the Police Psychiatrist and subsequently was under psychiatric care. There was virtually no follow-up from the Police Service, in terms of reviewing his medical status. There was some time elapsed before he was offered a rehabilitation programme. He remained symptomatic up to the time of his medical discharge from the Police Service. He was seeing a Psychiatrist and also a clinical psychologist. He was medically discharged from the Police Service in July 2000." 6The evidence before me discloses that the plaintiff was under the care of Dr Bruce Chenoweth, psychiatrist, and also under the care of Mr Roger Peters, a consultant psychologist. For the purposes of the first set of proceedings in the District Court, the plaintiff was examined not only by Dr Woolard but also by Dr Peter Klug, a forensic psychiatrist. Dr Klug examined the plaintiff on 10 May 2004. He recorded the plaintiff's symptoms thus: "1. recurrent headaches. 2. intermittent nausea. 3. generalised anxiety. 4. excessive startle reaction with noises (at night he sleeps lightly - he jumps at the sound of a telephone or a knock at the door) 5. moderately severe sleep disturbance - he wakes in response to any noise - he occasionally uses the mild hypnotic temazepam 6. he generally is avoidant of people - "I sneak around the house to avoid the neighbours" - he takes the garbage out after midnight to avoid meeting people - he said he does not know why he avoids people - "when I'm forced to meet people I handle that quite well - it's improved a bit over the last few years - if friends ring I'll go out whereas before I'd be at home for months on end - it's been years since I've gone out and been able to relax" 7. he is generally hypervigilant about potential threats in his environment - he said he is very wary of "what people will do" - he never sits with his back to the door - he said "I am still very much in police mode" - he insists on driving and said that he could never be a passenger because of his level of anxiety - he keeps a baseball bat under the bed - he keeps two very large dogs - a Rottweiler/German Shepherd cross and a sheepdog - he said they limit access to the home - "no one's getting past them" - he always uses a cubicle in a public toilet rather than standing at a urinal, for fear of attack - he always looks for "escape routes" and "cover" 8. he remains preoccupied with traumatic events he was exposed to during the course of his police service, such as fatal motor vehicle accidents and other deaths but also with the problems he experienced in the lead-up to his medical discharge - these thoughts intrude into his awareness, in a spontaneous fashion - "that's why I find it best to sit in front of a television and do nothing" 9. he is very wary of any physical contact with people but this has improved in the last twelve months - he is making more of an effort with friends to shake hands and give hugs 10. he is anxiously avoidant of, or phobically anxious about, reading articles about police - "but I'm also drawn to it because it was such a big part of my life" - he still sees no one outside of the friends noted above - "... but surprisingly I'm very much afraid of police which I find bizarre" 11. he suffers a diminished level of concentration - "pretty non-functioning" - "I find it hard to start something and finish it" - he is easily distracted 12. he procrastinates a great deal 13. he used to have nightmares but this is no longer the case 14. he used to have intense flashback experiences but these have settled down" 7At the time that Dr Clarke recorded those symptoms, the only work that the plaintiff was doing was as a "retail consultant". The plaintiff's wife had obtained such a job. Another way of describing it was being a "mystery shopper". The plaintiff's wife would be recruited to attend upon a shop and inspect its displays and the like and purchase an item and would then report back to those who had commissioned her as to the standard of the shopping experience and, in particular, the standard of the customer service provided at the shop. When the plaintiff's wife was asked whether she knew anybody who could do that job as she was doing it, she recruited her husband to carry out such work. It was intermittent work, which the plaintiff did once or twice per month. 8It was on the basis of the opinion of Dr Klug that the plaintiff and the defendant in matter number RJ943/2003 consented to a decision being made by this Court to increase the plaintiff's pension to 75% of the salary of his office on 27 January 2005. 9After that agreement, the plaintiff managed to obtain work as a private investigator. At first the work was sporadic. In the initial period the work as a private investigator was mainly doing covert surveillance. However, with the passage of time the amount of work that the plaintiff was doing increased. By 2007 he was not only doing some covert surveillance work but also carrying out factual investigations into workers compensation injuries and motor vehicle accidents and subsequently he also started inquiries into allegations of "theft", by which I infer the plaintiff meant an allegation by a householder of a breaking entering and stealing which caused the householder to make a claim on an insurance policy. 10The plaintiff's work as a private investigator was carried out through the intervention of a company, Colnett Pty Limited, which was the plaintiff's theoretical employer. Inter alia, Colnett obtained a workers compensation policy under which the plaintiff was covered for any compensable injury under the workers compensation legislation whilst working for Colnett Pty Limited. 11In a report of 17 May 2011, Dr Russell Davies, a psychiatrist under whose care the plaintiff came on 25 May 2010, the work which the plaintiff did for Colnett is described thus: "Mr Collins was employed with Colnett, which I gather is a business involving him in various activities, with the private investigating side of the company being the most pertinent to and most relevant to [his] presentation. From 2007 I gather there was a gradual increase in workload, involving Mr Collins's involvement in the investigation of a number of injuries, accidents, thefts and other criminal-related activities. This brought him into contact with certain areas within the Central Coast of NSW which were the scenes of previous traumatic activity and past exposure, which he was exposed to whilst in operational police duties. I gather there were times when he also had to return to the police station as part of his investigations, thus bringing him into contact again with previous triggers and cues related to traumatic events of his operational police career. There were also numerous other incidents, including conducting covert surveillance of individuals involved with an outlaw motorcycle gang where there was a very real risk of serious physical harm if his activities had become general knowledge. Apparently, he was not thoroughly briefed as to the nature of the people that he was monitoring, which potentially placed him at considerable danger. There were also multiple other incidents involving situations of much conflict when intervening with subjects, where there was a very real sense of danger and much emotional arousal related to disagreement. Over a period of time, from 2007 to 2009, there was an insidious decline in Mr Collins' mental health where he became increasingly sensitised to these difficult and demanding and conflict-ridden situations, such that he began to experience some of the symptoms of Post Traumatic Stress Disorder and depression that he had previously made a fairly good recovery from. These included sleep disturbance, nausea, dizziness, high levels of anxiety, hypervigilance, increasing use of alcohol to ameliorate his distress and physical symptoms, which I gather is an idiosyncratic reaction to stress that Mr Collins has experienced before. He began to experience intrusive thoughts which were repetitive and unwelcome and very distressing, related to his work with Colnett and also some of the events of the more distant past which began to have significant impact on his quality of life, with progressive contracture in his social functioning, with a tendency to isolation and withdrawal from family activities, including an interest and [sic] spending time with his children. In particular, he described working with an individual with whom he had been involved in surveillance who had made a number of threats to him, including on one occasion bumping into him in a local store. This had been associated with an increase [sic] sense of suspiciousness and perception of danger. Things reached a crisis point in 2009 where he felt that he would be unable to continue with the work." 12Because of his deteriorating symptoms, the plaintiff was persuaded by his wife to return to see his general practitioner, Dr Grace of Newcastle. Dr Grace then referred the plaintiff to Dr Davies, under whose care he came, as I have earlier stated, on 25 May 2010. Dr Davies advised the plaintiff to give up all his work as a private investigator and, insofar as he is still doing any such work, he gave it up and was thankful that he did because it led to amelioration in his symptoms. It was after ceasing that work that the plaintiff made the application to the defendant of 27 October 2010, which is the basis of the current application to this Court. 13According to the evidence before me, surprisingly and startlingly, the plaintiff was contacted by a claims officer of the workers compensation insurer of Colnett Pty Ltd in 2011 and told to make a workers compensation claim. The formal claim for workers compensation was made on 15 April 2011. The insurer, CGU, commenced paying workers compensation benefits to the plaintiff and such benefits continue. The benefits essentially are for total incapacity. 14The issue tendered for my determination is whether the plaintiff's current level of incapacity for work outside the Police Force is greater than that determined by the defendant through PSAC on 25 August 2011. An increase to 80% of the salary of office indicates that the defendant assessed the plaintiff's incapacity for work outside the workforce to be between 59 and 60%. 15The first thing to consider is what must be proved. A similar situation to the current case arose in McDougall v SAS Trustee Corporation (unreported, 18 October 2004, RJ9881/03), a decision of my colleague, Judge Quirk. Her Honour pointed out that under s 10(1D) the defendant might make at any time a determination of an additional amount payable under s 10 of the Act, and also vary any such determination at any time. Her Honour went on to say this: "The matters that the STC takes into account when considering an application to vary are not set out in the Act. It would be extraordinary if the STC could simply vary a pension at will. There must be, in my view, some evidence bought before this Court on an appeal from a decision of the STC as to a change in circumstances or fresh evidence." 16As this Court can only do what the STC ought to have done, the inference to be drawn from what her Honour said is that before the STC varies a pension there must be before it some evidence of a change of circumstances or some fresh evidence. Her Honour's decision was followed by Ashford J in Wilson v SAS Trustee Corporation (unreported, 1 November 2007, RJ369/06). Her Honour specifically agreed with Judge Quirk's reasoning. Unfortunately, neither of those two decisions has been reported, but her Honour Judge Quirk's decision ought to have been reported. I mean no criticism of the reporting service in saying that; it is probably the case that Judge Quirk did not send a copy of her decision for reporting. 17The first question is, is there evidence of any change of circumstance? Clearly there is evidence of such change. The plaintiff obtained employment, that employment was remunerative. But that employment led to a recurrence or a return of major symptoms of the plaintiff's certified infirmities of PTSD and Major Depression. That change of circumstance is in essence acknowledged by the defendant, which increased the plaintiff's HOD pension from 77% to 80% of the salary of the plaintiff's office as of the date of his discharge. 18There are before me a large number of reports from Dr Davies. Suffice it to say that it is clear that Dr Davies did not believe that work as a private investigator was compatible with the certified infirmities because work as a private investigator was too close to the duties that the plaintiff used to have as a senior constable of police and led to an escalation of his symptoms. With the benefit of hindsight, it can be seen that the plaintiff ought not to have sought alternative work as a private investigator. The plaintiff, himself, now has the benefit of such hindsight. 19In a report of 25 May 2010, Dr Davies expressed the view that as well as the deterioration of the plaintiff's mental state being due to his work as a private investigator, it appeared that "having a family has also had a significant impact" on the plaintiff's mental health. When interviewed by Dr Klug back on 10 May 2004, the plaintiff told Dr Klug this: "He has been with his wife for ten years. They have no children, by choice. He doesn't want children because of the many fatal accidents involving children that he has witnessed. He feels he would be overprotective and excessively anxious about their welfare. He said he has even distanced himself from the children of his sibs [sic] and friends. He said 'I'm just not comfortable around children'. His wife, however, is 33 years of age and would like to have children." 20The plaintiff's wife's will prevailed. The plaintiff has two daughters, Meredith, born on 12 August 2007, and Bridget, born on 3 April 2009. In the report of Dr Davies, to which I have just referred, the doctor recorded this: "Andrew tells me that he has had difficulty bonding with his children. He describes a sense of never having really wanting to have children. He attributes this to the multiple incidents that he has encountered over the years involving police and situations of sudden infant death. He describes a sense of fear that one of them may die and describes a sense of being heavy handed, with difficulty managing his anger around them. He tells me he does not hit the children and there was nothing to indicate to me today that suggested any immediate child concern issues." 21Insofar as the birth of the plaintiff's daughters may have caused part of the deterioration, one can see that it is part of the original symptom complex of which the plaintiff complained to Dr Clarke prior to the birth of his children. There was no way that the birth of the plaintiff's children could be in any way seen as some novus actus interveniens. 22In his reports, Dr Davies in essence expresses a view that the plaintiff is totally incapacitated for work. Recently, by which I mean 2012, the workers compensation insurer of Colnett referred the plaintiff to a rehabilitation provider, Konekt Australia Pty Limited at Newcastle. Reports of Ms Frances Johnson, a rehabilitation consultant, dated January 2012 in essence agreed the plaintiff was totally incapacitated. 2323 The defendant relies upon opinions expressed by Associate Professor Nicholas Glozier, a consultant psychiatrist. Dr Glozier first examined the plaintiff on 22 December 2010 and more recently on or shortly before 16 May 2012. Following upon his first examination, Associate Professor Glozier expressed this opinion: "Mr Collins currently has an improving psychological state. His current ability to work would be restricted in any major interpersonal environment, although, as has been shown when his symptoms resolve significantly, he is able to work in such environments, generally on his own, up to 25 hours a week, although this appeared to exceed his capacity to cope and I would suggest would be overly ambitious. He would thus be limited in many activities involving dealing with the public or working in public arenas. On testing today his concentration and cognitive performance were far better than he perceives himself and as such I believe he would currently be able to undertake a course or other re-training or undertake tasks certainly working from home or those that would be able to be done in a small group environment." 24I should indicate that the plaintiff told me, and I accept, that when he was working as a private investigator essentially between 2007 and 2009 he might work 25 hours per week "in the field" and then spend the rest of his working time typing up reports or the like in his home office. When he was asked as to the prognosis for the plaintiff's working capacity, Associate Professor Glozier expressed the view that the plaintiff's work capacity would improve as his disorder continued to "remit" as it had been doing since the plaintiff stopped working in April 2010. However, he expressed the view that the plaintiff was then, that is, as at 22 December 2010, "currently unemployable in any full-time job on the open job market". However, the Associate Professor did not exclude the possibility that the plaintiff could work part time. 25Certain questions were directed to the Associate Professor, basically asking him as to whether there had been any change in the plaintiff's medical condition since 27 January 2005. The Associate Professor said this: "I am not of the opinion that there has been any change in his apparent ability/capacity for work since the report by the doctors in 2004, which were used for his HOD increase in 2005." 26However, the defendant itself by, its decision of 25 August 2011, did not accept that opinion. When asked supplementary questions, the Associate Professor expressed a view that as the plaintiff's condition "reduces", by which I assume he means improves, the plaintiff "should be capable of maybe 10-15 hours per week, certainly less confronting activities than private investigation." 27The Associate Professor appears there to be saying that he foresaw that the plaintiff might return to working part time and then went on to express this view as to the type of work to which he might return: "Given Mr Collins's education and experience lie [sic] entirely within police work, any future employment will probably be unskilled or, at best, semi-skilled, e.g. retail, office administration. He obviously has word processing skills given his lengthy and rapid response to his assessment." 28Following upon his more recent examination, the Associate Professor expressed this view: "Throughout these two assessments I found him open, affable and conscientious and gained no sense or indication through inconsistency or on testing of exaggeration of his condition. He continues to undertake a range of tasks being able to drive himself, look after his children to some extent and in fact did so when his wife was in Thailand last year. He undertakes basic tasks around the home, uses the internet and, after I saw him last, produced a 3-page detailed document within a very short space of time using his word processor. He himself was at a loss as to why he would not be able to undertake a part-time role in an undemanding environment. Thus, although I acknowledge Mr Collins has a significant psychiatric disorder and he may well not desire or want to undertake a part-time role in a fairly unstimulating and non-socially threatening environment such as within an office administration task or in a warehousing role, or even as a gardener or lawn cutter, the basic question is whether he has 'the capacity' to undertake such a role. He undertakes several of these functions already, although with variable persistence according to the waxing and waning of his condition. His basic cognitive functions have twice been above average objectively and his subjective experience reflects his mood state rather than any underlying impairment as we have shown in our research ... The majority of people with his condition have been shown to be able to be productively employed ... As such, I stand by my previous argument that he would be able to work 10-15 hours, e.g. a couple of hours a day or 3 or 4 hours a day in such a role. He would likely require sick leave which can be accommodated under the Disability Discrimination Act. It is entirely another matter as to whether these roles exist but certainly I have a number of patients amongst my very disabled community mental health clients who would have been able to find such roles." 29The suspension points included in the above quotation replace references to footnotes referring to certain publications to which the Associate Professor has contributed. 30The plaintiff himself, when told by Associate Professor Glozier about his opinion as to the plaintiff's capacity to work, has looked for some forms of part-time work but has been completely unsuccessful in his enquiries. However, his enquires were not as extensive as they could have been. 31The first thing to note is that despite the opinion of the Associate Professor there was no exaggeration by the plaintiff of his condition, it was squarely put by the defendant to the plaintiff that he was, in fact, exaggerating. The plaintiff denied that he was and based on the opinion of the Associate Professor I do not accept that the plaintiff has been exaggerating. 32The Associate Professor found the plaintiff to be open, affable and conscientious. I myself would have described him as well presented, articulate and intelligent. It was submitted on behalf of the defendant that the plaintiff clearly had "administrative, managerial and clerical skills". I agree that the plaintiff does have both administrative and clerical skills. The problem about being a manager is that one must manage people. One does not manage, for example, a warehouse by not dealing with people. It is interpersonal relationships that cause the plaintiff grave difficulty. His dealing with members of the public causes him grave difficulty. It is also a part of his symptom complex to suffer from agoraphobia. For example he becomes more symptomatic when in a shopping centre or shopping mall or the like than when he is in his own home. In essence, the nature of the plaintiff's certified infirmities have destroyed his ability to do managerial tasks. However, they have not destroyed his ability to do administrative and clerical work and what the plaintiff did, not in the field, but in his home office, when he was a private investigator, attests to that fact. 33The plaintiff has no physical infirmity. There is no reason why the plaintiff could not, for example, conduct a lawn mowing, or gardening business, except for the fact that it might require him to deal directly with members of the public and that may be countermanded by his certified infirmities. However, one can postulate the plaintiff's carrying out work as a lawn mowing contractor where, for example, he has regular jobs, mowing areas such as the lawns of some commercial premises or, for example, a nursing home, a private schoolyard or the like. 34Learned counsel for the plaintiff, Mr Edwards, has referred me to the decision of the Court of Appeal in Moran Healthcare Services v Woods (1997) 14 NSWCCR 499, that was a challenge to a finding by Burke J of total incapacity. The challenge was unsuccessful. The challenger was Mr SG Campbell (as his Honour then was). The judgment of the Court of Appeal was given by Mason P, with whom Beazley JA and Grove AJA concurred. His Honour commenced with a reference to the locus classicus concerning incapacity, the decision in Ball v William Hunt and Sons Limited [1912] AC 496 where Lord Loreburn LC said at 499: "In the ordinary and popular meaning which we are to attach for the language of this statute I think there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him and there is partial incapacity for work when such a defect makes his labour saleable for less than he would otherwise fetch." 35The headnote to Moran Healthcare Services v Woods appropriately sums up the decision: "1. In assessing whether a worker is totally incapacitated, the Court is involved in the assessment of a capacity 'for work' having regard to the realities of the labour market in which the worker is to be engaged. The Court must assess whether the disabilities or the pain or both from which the worker suffers by reason of his or her compensable injuries are such that the worker is able to do those things which will permit the worker to do the work in the relevant labour market. 2. The 'eye of the needle' test does not represent a correct approach to the concept of 'total incapacity'. There will be a number of cases where, despite evidence or concession that the worker might be able to perform some task in some circumstances, a finding of total incapacity is sustainable in law. In this, as in most areas of the law, the requirement of reasonableness and the principal clustering around the maxim de minimis non curat lex have work to do. It must not be forgotten that workers' compensation legislation is remedial." 36In the course of evidence, it was suggested to the plaintiff that given his preference to work in the absence of the public and to work in circumstances where there was no agoraphobia, he could, for example, work in a control room monitoring closed-circuit television and the plaintiff gave a guarded but positive response to that suggestion. Such work might be available monitoring the common areas of shopping malls where the monitor of the CCTV would be looking for things such as spillages, shoplifting, or anti-social behaviour, where a person might work for the Sheriff, monitoring CCTV in various courtrooms as there are in this court complex, or working monitoring traffic on our increasingly congested roads, highways, freeways and motorways. 37However, there is no evidence before me, one way or the other, as to whether such work is available or not available. There is much force in the submission put to me by Mr Edwards that it would be very difficult for any person to obtain work say, for example, two hours per day, especially when most awards provide for a minimum number of hours in excess of two hours per day. I understand that most awards have a minimum of three or four hours per day. However, it is always possible for a person such as the plaintiff who is seeking part-time or casual work to work, for example, in retail outlets on Thursday evenings and either on a Saturday or a Sunday. 38Another consideration that must be borne in mind is this. Associate Professor Glozier refers to a number among his "very disabled community of clients" being able to find appropriate work. Such work might be in a sheltered workshop. It would be, in my view, completely inappropriate to expect the plaintiff to work, for example, in a sheltered workshop with the mentally handicapped. In a report of 26 July 2002, Mr Roger Peters, who was largely treating the plaintiff prior to his commencing work as a private investigator, said this: "There are of course practical limitations in his chances of employment. The first of these is that while he is physically capable of working, I think that any work he would be capable of would by necessity be stress free (if that's possible). Furthermore, I would hope the fact that he can no doubt do menial tasks, such as those done by people with intellectual and physical limitations; these should not be expected of him. For instance, I think [if] he was forced to do any work that was below his dignity and certainly not commensurate with his pre-injury employment, then it would only undermine his self-esteem and thus aggravate a substantial condition of depression, referred to above. The problem then is having found work of a suitable nature consistent with his intellect and pre-injury status. The question goes begging as to whether he would be able to consistently and persistently manage the work and or whether such work would ultimately aggravate his condition. In other professions that I deal with, specifically the armed forces, there is no expectation for a TPI to find work and I think such similar expectation may be appropriate in respect to [sic] Andrew. I would not think that casual or part-time work in the main was again commensurate with his pre-injury intellectual capacity. Secondly, of course, I refer as I did earlier to the 'practicalities' of finding employment. In making application for employment a full disclosure is required. With respect, I would really doubt giving the full explanation of the last 5 years whether Andrew would find an employer benevolent enough to make an offer of employment." 39The flaw in the argument advanced by Mr Peters is, of course, that it begs the question to expect somebody who is "totally and permanently incapacitated" to look for alternative work because the person is by definition thought to be totally incapacitated. However, Mr Peters makes valid points in referring to the fact that the work which the plaintiff should be required to look for should not be so menial as to be inconsistent with his education, experience and background, such that it would remove his self-esteem. 40The point also is valid as to whether the plaintiff could "consistently and persistently manage" such work as he could find. In self-employment, of course, the plaintiff could always find a way around, for example, having a "bad day". The point is also valid about whether any employer would offer the plaintiff work. Once he disclosed that he was on a police pension for a psychiatric condition and then also disclose that in addition he was in receipt of workers compensation for the same condition, I doubt that any employer would offer him any work at all. 41The popular adage is that "the proof of the pudding is in the eating". Here the plaintiff found self-employment based on the type of work that he had done for the police force, based on his previous experience and training. He appears to have persisted with it for some at least four years and was apparently good at it because he kept getting more and more work. However, it backfired, in that it caused a recurrence of the extreme symptomatology which he had after initially going on sick report when a member of the police force. The reality, in my view, is that the plaintiff would find it almost impossible to find paid employment in the workforce. 42However, the terminology of s 10(1A)(b)(ii) is "incapacity for work outside the police force", and a capacity for work outside the police force might include self-employment. The self-employment that the plaintiff has engaged in in the past was, with the benefit of hindsight, completely inappropriate. However, he does have the ability to work in self-employment, for example, as a contract lawn mower, or contract gardener, or doing some clerical or administrative work, such as writing précis of reports, or the like, doing the clerical aspect of the job that he did as a private investigator. However, the plaintiff's incapacity for work outside the police force is large. 43I have come to the view that the plaintiff's percentage incapacity for work outside the Police Force is 80%, and therefore he is entitled to an additional allowance of 9.8% of the salary of his office, such that his HOD pension should be increased to 82.55% of the salary of his office. 44The decision under appeal, that made on 25 August 2011 and notified on 26 August 2011, backdated the pension increase to 27 October 2010. No submission was put to me that that is other than the appropriate date to increase the pension. For those reasons, I set aside the decision of the defendant made on 25 August 2011 and I determine that the plaintiff's HOD pension be increased to 82.55% of the salary of his office. The increased pension is payable from 27 October 2010. I order the defendant to pay the plaintiff's costs.