Cook v SAS Trustee Corporation

Judgment 1Geoffrey Cook ("appellant"), a former police officer with the NSW Police Force, has brought an appeal pursuant to s 88 of the Superannuation Administration Act 1996 against a decision of SAS Trustee Corporation ("the respondent") in which it declined to provide to the appellant a certificate of medical incapacity under s 10B of the Police Regulation (Superannuation) Act 1906. The provision of such a certificate is a prerequisite to a former police officer being granted an annual superannuation allowance or gratuity. 2Mr Cook joined the Police Force in 1980. He was attested as a constable on or about 15 September 1980 and stationed at Kogarah and Rockdale police station, performing general duties until about October 1981. Mr Cook was then transferred to the Highway Patrol Unit at North Sydney on or about October 1981 and was involved in the introduction and roll out of Random Breath Testing. 3On or about 1 November 1981 Mr Cook was transferred to the Highway Patrol Unit at Hurstville. He was stationed there until transferred to the Anti-Theft Squad at Sutherland in 1989. 4At some time in 1990 Mr Cook returned to the Highway Patrol Unit at Hurstville. In 1991 Mr Cook was transferred to the Sydney District Highway Patrol. He resigned from the Police Force on or about 16 August 1991. 5In his affidavit evidence, Mr Cook gave accounts of three accidents in which he was involved. The first was during his stint with the Hurstville Highway Patrol: (a) On or about 21 February 1984 at approximately 7pm in the evening I was involved in a motor vehicle accident whilst on duty ("the First Accident"). At the time I was the passenger of the motor vehicle driven by my partner, Senior Constable Heathcote and we were pursuing a stolen vehicle in the Sydney suburb of St. Peters. I was wearing a seatbelt at the time. (b) When it appeared that we had caught up with the offender and that vehicle became stationary, I attempted to get out of the police vehicle to make the arrest. I opened the door and had one foot out. My left hand was holding onto the car's A-pillar as I was getting out. At this point, the offender reversed his vehicle at high speed into the front of our police vehicle, ramming it three times. On the third occasion the vehicles became stuck together. (c) I subsequently got out of the police vehicle and arrested the offender. (d) After I made the arrest I sat back in the police vehicle. I felt pain all over my body. (e) As a result of this accident, I suffered injuries to my left wrist, neck, lower back and left leg. (f) I was off work for about a month, returning to light duties then eventually to normal duties. Though I returned to normal duties I continued to suffer pain in my back, neck, left wrist and left leg. (g) Notably, my back has been problematic since the First Accident, and my left wrist the same. 6Mr Cook said that following the first accident, he struggled to undertake his normal duties as a police officer. 7In 1985 Mr Cook said he received training as a "slant operator" which involved sitting on a chair operating the newly introduced "fairy slant radar". He said these were light duties and he had no contact with offenders. When the radar he was operating detected a vehicle breaching the regulated speed limit he would "radio the vehicle's details to a police officer down the road, that officer then made contact with the offending driver." Further, that: When I was "two out" in highway patrol my partnering officer would need to carry the radar equipment as I could not do it due to the pain particularly in my back, left wrist and legs. If I was "one out" I would drag the radar equipment along the ground as I could not lift it. I was told not to do this because the equipment would get damaged. As a result of this practice the Officer in Charge purchased a small trolley to carry the radar box. 8The appellant stated that following the first accident he started to lose strength in his legs. He said he could chase an offender a short distance on foot but could not continue to pursue if the distance became longer than 300 metres. Mr Cook said this "deterioration" continued to be the case until he resigned. 9The appellant also claimed that after the accident he could not "effectively wrestle offenders". On or about 28 December 1986 he said he was wrestling an offender, but had to let go of him because he experienced pain in his neck and back. 10Sometime in 1986 Mr Cook said he applied to do the "Solo Motorbike Course" with the Police Force. He said he was refused because of the back injury he sustained in the first accident. He subsequently re-applied on a further two occasions, but continued to be rejected for the same reason. 11The appellant said he received training to perform duties with the Police Aerial Speed Surveillance unit, monitoring speeding vehicles from an aeroplane piloted by a police officer: I would sit in the back seat of the aircraft, look out the window and use a time, distance and speed monitor to track the speed of the vehicles on the roads below. These duties were low impact and performed between 3 to 7 times per fortnight along with my normal highway patrol duties. I continued to do Aerial Speed Surveillance duties until that program was shutdown around 1990. 12Mr Cook described the second accident as follows: (a) On or about 24 May 1988 whilst on duty with Hurstville Highway Patrol I was involved in a further motor vehicle accident at Rocky Point Road in the Sydney suburb of Kogarah ("the Second Accident"). (b) I was the driver of the police vehicle chasing a speeding vehicle northbound. Senior Constable Kusters was seated in the passenger seat of the police vehicle. We were both wearing seatbelts. (c) A "Kombie van" vehicle pulled out from the left side street at Jubilee Avenue, Kogarah and the Kombie van and our police vehicle collided. We were travelling approximately 80km/h. (d) I was thrown forward suffering injuries to my neck, jaw, teeth, and back. (e) I was transported straight to St George Hospital following the Second Accident. (f) I had about a month off work. I returned to light duties. I eventually returned to normal duties. (g) Following the Second Accident I continued to suffer pain notably in my neck and my back. 13The third accident was claimed to have occurred in the following circumstances: a) On or about 8 May 1990 I was involved in a further motor vehicle accident whilst on duty ("the Third Accident"). (b) I was the driver of the police vehicle chasing a speeding vehicle on the Princes Highway in the Sydney suburb of Arncliffe. Senior Constable Gary Smith was seated in the passenger seat of the police vehicle. We were both wearing seatbelts. We were travelling about 80km/h. (c) Whilst in pursuit, a vehicle pulled out in front of us. Our vehicle and the other vehicle collided. (d) I suffered injuries to my neck and back. (e) Following this accident I felt pain all over my body particularly, neck and back pain. 14The appellant stated that following the third accident and after returning from a short stint with the Anti-theft Squad at Sutherland, he recommenced duties with Hurstville Highway Patrol as a slant operator. He did these duties along with his normal highway patrol duties despite continuing to suffer "notable pain in my back, neck and legs." 15Mr Cook said that whilst attending to duties with Hurstville Highway Patrol he was also involved in an incident regarding a brawl at Riverwood where another police officer was being attacked. As he came to the aid of the officer he felt pain in his back whilst wrestling one of the offenders to make an arrest. Another police officer present had to take over the arrest because Mr Cook said he could not continue due to the pain he felt. 16Upon his transfer to Sydney District Highway Patrol Mr Cook continued to perform slant radar operator duties and general highway patrol duties. 17He stated that prior to his resignation he took: extended sick leave, due in part, to my injuries suffered whilst on duty. At that time I was waking up every day with back and searing leg pain. 18Mr Cook stated: I resigned from the Police Force on or about 16 August 1991. A reason I resigned was due to the ongoing pain I was suffering from my injuries as well as not being able to effectively arrest resisting offenders. 19Mr Cook described his activities after resigning from the Police Force: Following my resignation from the NSW Police Force I undertook work as a security manager at Sydney Airport, which was mostly a desk job. In 1992 I purchased a trucking business and was self employed as a driver with Carlton Brewery. Most, if not all of the heavy lifting involved in this job was done by my offsider who accompanied me on the truck to jobs. In 1997 I started my own distribution company with Cadbury's ice cream. This involved delivering ice cream in a truck and there was no heavy lifting involved. In 2000 the pain from my injuries was getting worse and I sold the distribution company and started telecommunications consultancy business called "Utilize". I was working extremely long hours in this business, up to 18 hours per day. I was also driving excessive distances and this job involved long periods of sitting. It reached the point where I could not cope with the amount of medication and driving or dealing with business clients anymore and I sold the business in 2007. I am currently employed as a truck driver, working in a mine in Western Australia. I drive short distances of 1 to 4 kilometres up and down the site. 20The appellant stated that before the first accident he was very active. He said he enjoyed riding motorbikes, racing beach buggies, surfing and was involved in competitive water-skiing and spear-fishing. The appellant claimed he could no longer undertake these activities due to the pain he suffered from the injuries he received as a police officer. 21Mr Cook stated: For most of the years I worked with the Police Force I enjoyed my job and would have continued to be a Police Officer if I was not suffering from pain in my neck, back, legs and left wrist. 22In support of his application the appellant relied on a number of medical reports extending from 1984 to 2014. I will attempt to summarise the diagnoses in the following table: Medical Practitioner Date of Consultation Diagnosis/ treatment/opinion Dr Child (Hospital General Superintendent) 20.9.84 Neck pain, tenderness over left wrist, flexion extension injury to cervical spine. One week bed rest and analgesics Dr Roberts GP 25.2.86 Back pain. Two days off work Dr Conrad 30.4.86 Whiplash injury to neck, back strain, strain to left wrist. Returned to full duties. 15% permanent loss of function of left upper limb Dr Searle Consultant Orthopaedic Surgeon 28.10.86 Left wrist injury a moderate disability. Lumbar ligament strain of permanent nature. Severe disability. Symptoms and disability will gradually increase over time. Permanently fit for only light work Clinical notes 28.1.87 to 25.7.88 Tenderness left hand, neck pain gradually improving St George Hospital 27.5.88 In-patient from 24.5.88 to 27.5.88. Soft tissue injury to neck. Unfit for work for two weeks. Dr Evans 10.6.88 Neck pain, stiffness in neck, no problem with right foot, some discomfort when clenching teeth but no severe pain. Unfit for work for two weeks. Dr Chee/Dr Lim/Dr Giang GP 8.5.90 Back pain Dr Chan GP 17.11.90 Sprain back Not fit for duty 17.11.90 to 19.11.90 Mr Jolliffe Chiropractor 19.11.90 Back strain. Fit to resume work on 22.11.90 Dr Chee/Dr Lim/Dr Giang 29.5.91 Stress, Fatigue. Not fit for duty 29.5.91 to 2.6.91 Clinical notes - Dr Lim GP 14.5.91 to 12.6.91 (seven consults) Problems with wife. Being investigated by Internal Affairs. Feels his career is in ruins. No future for himself in Police. Feels he will be sacked. Wants to resign to get super money for legal expenses. Seeing counsellor. Not sleeping, quite agitated. Was feeling suicidal but this dissipated. Dr Lim/Dr Chee/Dr Giang 13.6.91 Insomnia/fatigue. Not fit for duty until 16.7.91 Dr Lim/Dr Chee/Dr Giang 16.7.91 Insomnia/fatigue. Not fit for duty until 16.8.91 Sydney Imaging Centre 26.10.95 Vertebral alignment normal. Narrowing of the L3/4 and L4/5 disc spaces. Minor osteophytic spurring present at L3/4 level. Pedicles ansd apophyseal points normal. Southern Radiology 3.8.06 CT Lumbar spine exam. L3/4 disc shows minor degenerative changes. Mild bulging at L4/5 level. Lumbrosacral disc shows marked degenerative changes Southern Radiology 6.4.09 MRI Lumbar spine. Degenerative changes, herniation causing neurological impingement on nerves Dr Patrick - Surgeon 28.4.09 Ongoing symptoms of pain, stiffness, sleep disturbance, mood changes are genuine and consistent with and resulting from injuries sustained during course of employment as police officer. Net assessment of permanent impairment/loss: 26% permanent impairment of back; 16% permanent impairment of neck; 12% permanent loss of use of right leg at or above the knee including loss below the knee; 3% permanent loss of use of left leg at or above knee including loss below the knee. Assessments entirely work related Police Medical Record 18.8.80 to 28.6.90 Record notes following relevant injuries reported: 22.2.84 wrist and neck injury; 14.12.84 neck [indecipherable]; 3.3.85 back; 21.10.85 back pain; 25.2.86 back; 25.5.88 soft tissue injury to neck; 11.4.89 back injury. Record shows light duties from 23.3.84 to 26.4.84; 9.2.87 to 17.3.87; 6.5.87 to 25.5.87; 27.6.88 to 26.7.88 Dr Bodel Orthopaedic Surgeon 11.4.2014 Injuries to left hand, left wrist, neck and back occurred as a consequence of the episodes of injury that occurred at work as a police officer. Patient struggling with operational policing duties at the time he resigned. Patient was incapacitated for operational policing duties as a consequence of his injuries prior to his resignation and was incapacitated for operational policing duties on 16 August 1991 because of recurring episodes of physical injury caused by the accidents in which the patient was involved. Patient has 25% overall permanent impairment of back function, 5% permanent impairment of neck function, 10% loss of efficient use of left leg at or above the knee and 5% permanent loss of efficient use of left leg below the knee. 10% permanent loss of efficient use of left arm below the elbow