HIS HONOUR: Before me is a motion, a notice of which was filed on 21 January 2015. The first two prayers for relief are in essence to strike out pleas numbered 6 and 7 in a second amended defence filed by the defendant on 20 November 2014. Plea numbered 6 was first pleaded in a first amended defence filed on 12 November 2014. It is so described in the notice of motion; however, it is more convenient for me to discuss it in the context of the second amended defence of 20 November 2014 in which plea 6 is repeated from the first amended defence.
I should point out that the defendant had not obtained leave at any time to file any amended defence and that was theoretically necessary. However I will overlook the irregularity.
The plaintiff moves to strike out pleas numbered 6 and 7 pursuant to UCPR 14.28. The third prayer for relief is that the plaintiff not be required to submit to a medical examination at the request of the defendant with either a neuropsychologist or a cardiologist.
The plaintiff was born on 27 March 1939. He is currently 75 years old. He was attested as a probationary constable of police on 26 February 1962, and thereupon became contributor to the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906 ("the Act"). The statement of claim continues thus:
"[3] Between 26 February 1962 and 21 December 1990 and during the course of his employment the plaintiff performed general, specialist and operational police duties for the NSW Police Force at locations including Campsie, Canterbury, Earlwood, Lakemba and Punchbowl ('the duties').
[4] The plaintiff claims that during the course of the duties, he sustained the medical conditions of 'anxiety state; and psoriasis' ('the conditions').
[5] On 19 June 1990, the plaintiff applied to be certified unfit for duty due to the conditions.
[6] On 27 June 1990, the plaintiff was certified unfit for duty due to the conditions. He was subsequently discharged from the NSW Police Force medically unfit on 21 December 1990.
[7] On 2 November 1990, the Delegate for the Commissioner of Police certified, pursuant to s 10B(3)(a), of the Act that the conditions were caused by the plaintiff[sic] being hurt on duty on 22 October 1986 (notional)."
Nearly 13 years later, on or about 10 October 2013, the plaintiff made an application under s 10(1A)(b) of the Act to increase his annual superannuation allowance above 72.75% of the salary of his office at the date of his discharge from the NSW Police Force.
On 11 March 2014 the defendant declined to award the plaintiff any increase in his annual superannuation allowance and notified the plaintiff of that decision in writing on that day. The plaintiff noted on the letter of declinature that he received it on 28 March 2014. The plaintiff was aggrieved by the decision of the defendant and commenced these proceedings by the filing of a statement of claim on 30 July 2014.
Plea numbered 6 is this:
"In further answer to paras 3 and 4 of the statement of claim, the defendant states that any events that occurred between 26 February 1962 and 21 November 1979 and any events that occurred after 22 October 1986 cannot be relied upon by the plaintiff as relevantly causative of his certified infirmity."
The first thing to note is that it is the duty of the Commissioner of Police under the Act to decide what is the relevant cause of the certified infirmity. The current defendant's role under the Act is to ascertain the quantum of the plaintiff's entitlement, if any.
The relevance of the period 26 February 1962 to 21 November 1979 is this. The current basic regime of the Act with which this Court must deal commenced with the commencement of the Police Regulation (Superannuation and Appeals) Amendment Act 1979.
This Court's jurisdiction is limited to injuries received after 21 November 1979: see Staples v The Commissioner of Police (1990) 6 NSWCCR 33 and Dive v The Commissioner of Police (1997) 15 NSWCCR 366. This Court cannot take cognisance of injuries received before 21 November 1979. Cognisance of such injuries remained with what was the Crown Employees Appeal Board which then became the Government and Related Employees Appeals Tribunal, and when that tribunal was abolished, jurisdiction that it had was transferred to the Industrial Relations Commission of New South Wales. However, the person who must not take cognisance of injuries occurring before 21 November 1979 is the Commissioner of Police in determining compensability, and the Court is in the same position as the Commissioner of Police when there is an appeal from the Commissioner of Police's determination of what was the cause of the certified infirmity.
The relevance of what occurred after 22 October 1986 can be seen from the decision of the Commissioner of Police of 2 November 1990, which is exhibit B-B before me. That decision provides a "notional date of injury" as being 22 October 1986. The significance of that date is quite unclear on the material before me.
According to a history obtained by Dr Christopher Canaris the plaintiff last worked as a constable of police in 1990 "on restricted duties." Further in the Doctor's history is this matter:
"His anxiety at the time of his departure from the police 'was like a worry inside me...What was going to happen to me'. He had 'wanted to be on the road' but found himself stuck in office duties much to his disappointment. At the time, he had not been sleeping well 'and I get the idea I might have talked a bit in my sleep … not as much as my younger bloke'."
It would appear that for some period before his discharge from the NSW Police the plaintiff had been on restricted duties performing only office work. It may be, and I am only speculating here, that 22 October 1986 was the last time on which the plaintiff performed unrestricted duties.
The significance of the period between the notional date of injury and the plaintiff's actual cessation of work in the NSW Police can be gleaned from the judgment of Basten JA in State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257. In that case there had been a notional date of injury of 6 August 2003. Commencing at [15] his Honour said this:
"[15] The certificate was dated 10 April 2007. The certificate of the Police Superannuation Advisory Committee, referred in the s 10B(3) certificate, was not in evidence, but the statement of the nature of the infirmity was not in dispute. What was in dispute was the significance of the reference to a 'notional' date of injury and the need to assign causal elements to a period prior to 1 January 2002. The Workers Compensation Act expressly deals with an injury which 'is a disease which is of such a nature as to be contracted by a gradual process' (s 15) and one which consists in 'the aggravation, acceleration, exacerbation or deterioration of a disease' (s 16). In each case, the section provides that the injury is 'deemed to have happened' either at the time of the worker's death or incapacity or, if neither has yet resulted, at the time the worker makes a claim for compensation with respect to the injury: ss 15(1) and 16(1).
[16] That statutory background appears to explain the allocation of a 'notional' date of injury in the Commissioner's certificate. Section 10B(3) of the Police Superannuation Act requires that the Commissioner decide whether the infirmity was caused by the officer being hurt on duty and also the 'date or dates on which the member ... was hurt on duty'. The date on the certificate, namely 6 August 2003, was the date on which the respondent completed a claim form alleging that he was 'hurt on duty'. The respondent was later medically discharged from the police force: the last day on which he attended duties as a police officer was 15 May 2006."
Commencing at [59], his Honour went on to say this:
"[59] In relation to subsequent events, which have not been the subject of a certificate under the Police Superannuation Act, s 10B, it is also necessary to make a deduction from the assessment of current impairment. That task may not be necessary if the Court determined that the s 10B(3) certificate in fact covered events occurring after 6 August 2003. However, the trial judge failed to address the proper construction and effect of the certificate. In the circumstances of this case, that step was necessary and its omission involved a constructive failure to exercise the statutory jurisdiction. If the certificate did not cover the later period a deduction should have been made. Again, the difficulty, if not impossibility, of any degree of precision, did not avoid the need to make a calculation if a significant causal connection were accepted.
[60] The error in the present case was that the trial judge did not engage with this exercise. Nor did she reject the unequivocal evidence that required the exercise to be undertaken. At [166] she stated:
'It does not seem to me that any proportion of Mr Cornes' permanent impairment is due to any injury after 6 August 2003. The evidence does not persuade me that any proportion of his impairment is due to any previous injury, pre-existing condition or abnormality.'
[61] The statement in the first sentence of [166] disregarded the respondent's own evidence as to the traumatic events in 2005 and the unequivocal evidence of Dr Diamond set out at [54] above. It also disregarded the fact that the respondent's solicitors expressly relied on the causal effects of the 2005 incidents in their letter of 23 July 2007 making the claim under s 12D. Dr Lambeth's report, provided to support that claim, also placed reliance on these events, as did the reports of Drs Vickery and Wenden. The point was squarely raised by the STC in its written submissions (at pars 19-31) and orally. None of this was addressed by the trial judge in reaching her conclusion. That step involved no mere factual finding, but rather constituted a constructive failure to exercise the statutory jurisdiction conferred on the Court.
[62] The second sentence revealed a purported rejection of the test in s 323, not the transitional provisions. This was an error made by more than one of the medical experts. Despite her adoption of the terminology of the transitional provisions at [161] - see at [31] above - she proceeded in the next paragraph to state that, '[n]one of those duties disabled Mr Cornes; their effects on him were transient.' The factual findings may readily be accepted (as they must be), but they reveal an assumption that the test under the transitional provisions is the same as that under s 323: that approach is legally erroneous. The trial judge's failure to address the test under the transitional provisions, to determine whether the certified impairment was due in part to events which occurred before 1 January 2002, constituted a constructive failure to exercise the statutory jurisdiction and an error in point of law."
McColl JA and Preston CJ of LEC agreed with Basten JA. The passages which I have just cited reinforce the significance of the "notional date of injury." However, again that goes to issues of causation rather than quantum.
The problem here is a pleading problem. I was minded to strike out plea 6. But, if I did so, it might create an estoppel on the pleadings. The plaintiff in the statement of claim does not confine his allegations of injury to the period from 21 November 1979 to 22 October 1986 but relies upon the whole of his service with the NSW Police, being 26 February 1962 to 21 December 1990. In the circumstances, I must permit plea 6 to stand. If the plaintiff amends the statement of claim to rely on only the limited period, then plea 6 could be struck out. However, it is possible, because it is adverted to by Basten JA in what I have quoted from him, that the Court might be able to take into account matters that occurred after the notional date of injury if they were relevantly causative of the incapacity.
I can accept the submissions of Mr O'Rourke for the plaintiff that theoretically plea 6 is irrelevant. However, what makes it relevant is the plaintiff's own plaint.
Plea numbered 7 is this:
"In answer to the plaintiff's claim for pension increase the defendant says that the plaintiff is totally incapacitated for work outside the police force by virtue of his non hurt on duty medical conditions and accordingly, any incapacity caused by his certified infirmity is of no practical economic effect. Alternatively, the non hurt on duty medical conditions represent a novus actus interveniens."
The first part of that plea appears to raise a positive defence which positive defence is not open to the defendant. The legal onus of proof falls always upon the plaintiff. The defendant has no legal onus of proof. I discussed this issue in Smith v The Commissioner of Police [1999] NSWCC 4; (1999) 18 NSWCCR 105 in which I pointed out that a traverse is merely a denial of the allegation made by a plaintiff and that particulars cannot be required to be given of a traverse. In that case, the defendant wisely withdrew a positive allegation made in a plea (c) set out in [5] of my reasons.
The essence of the argument raised by the plaintiff is this. In Lembcke v SASTC [2003] NSWCA 136; (2003) 25 NSWCCR 464 the Court of Appeal approved the methodology under s 10(1A)(b) of the Act adopted by Curtis CCJ in Poole v SASTC (2000) 20 NSWCCR 633. Commencing at [11], his Honour said this:
"[11] He has significant back injuries and cannot work in his trade. I accept Mr Walsh's submission [for the Applicant] that in the broad sense the loss of capacity commensurate with his ability to work injured and uninjured outside the work force is a loss of 50% of his capacity. It is agreed between the parties that if that were the finding he should receive 50% of the maximum 12.25% of his attributed salary of office.
[12] I believe it relevant to make further findings. Were this a claim pursuant to s 40 of the Workers Compensation Act 1987, I would have exercised my discretion in order to reduce the compensation which would otherwise be payable. I find it probable that the applicant intended to retire at the expiration of 30 years service in 1989 and that he had purchased a small holding of five acres which he intended to transform into an orchard to supplement his retirement income. I also find as a fact that because of the probable onset of further degenerative changes the applicant after about that time would have been unable to engage in the heavy work of a motor mechanic in any event. I also find as a fact that the applicant has been uninterested in exercising such residual earning capacity as he has.
[13] In the 13 years since his retirement the applicant has made only one application for work and that was work as a chauffeur. I believe that the applicant at no time intended that he should work beyond the date of his probable retirement in 1989 and I believe that he has suffered no economic loss beyond 1989 when he probably would have retired in any event, then being entitled to payments of 72.75% of his attributed salary of office. In the upshot, all of those considerations are irrelevant."
In Lembcke the leading judgment was given by Santow JA, with whom both Meagher and Ipp JJA concurred. Santow JA makes it clear that there is nothing in s 10(1A)(b) equivalent to the discretion that is available under s 40 of the Workers Compensation Act 1987. That is clear from [48] and [49] of his judgment and also in [55] and [56] of the concurring judgment of Ipp JA.
The defendant argues that in construing the word "commensurate" in s 10(1A)(b)(ii) that the Court can and ought take into account a supervening, non-hurt-on-duty disability. The fact that over three hours were spent in argument clearly indicates that there is a triable argument as to the proper meaning of the word "commensurate" in the paragraph to which I have just referred. In other words, the plaintiff has not established that the second part of plea 7 discloses no reasonable defence or other case appropriate to the nature of the pleading as required by UCPR 14.28. Having said that, however, it appears to me that I should strike out plea 7 and grant the defendant leave to re-plead that matter in light of the argument advanced to me yesterday and this morning by Mr Ower.
The final matter for consideration is the question of medical examinations. To rule on this there are before me two medical reports, one made by Dr Christopher Canaris at the request of the plaintiff's trade union, the Police Association of NSW, and one from Dr Peter Whetton, who was qualified by the defendant. Each of those gentlemen is a psychiatrist. Each of those gentlemen diagnoses a cognitive impairment. It is the presence of that cognitive impairment which the defendant says permits it to require the plaintiff to undergo assessment by a neuropsychologist.
Dr Canaris said this:
"Of late, posttraumatic recall seems to have become more prominent detracting from his quality of life. At the same time, the possibility of the beginnings of senile dementia Alzheimer's type has been raised. While this is not apparent on the mini mental state examination, this particular test is of limited value in identifying more subtle cognitive decline. His subjective complaints with regard to his memory do suggest the emergence of benign senescent cognitive impairment, which might be a precursor of a senile dementia."
Dr Whetton also diagnoses an impairment of cognitive function and points out the plaintiff's hurt on duty condition has been affected by cognitive impairment over the 12 months preceding his examination of the plaintiff on 25 November 2013. In his report Dr Whetton refers to mild cognitive impairment causing problems with the plaintiff's concentration and memory. He also points out that deterioration may occur in the plaintiff's psychiatric condition with the advancement of the mild cognitive impairment which would lead to increased levels of anxiety and a loss of function.
However, Mr O'Rourke, for the plaintiff, concedes that the onset of any cognitive impairment is not causally related to the certified infirmity. It is, to use the terminology used by Mr Ower, accepted to be a supervening, non-hurt-on-duty-disability.
In the circumstances, it appears to me that nothing is to be gained by requiring the plaintiff to undergo a neuropsychological assessment which can in itself be exhausting and trying, being a prolonged procedure, since it is accepted by the plaintiff himself that it is not a result of his having been hurt on duty.
The defendant also requires the plaintiff to be examined by a cardiologist because the plaintiff has now a cardiac condition. However, the plaintiff has many supervening, medical problems. He has a coronary artery stent and more recently has had treatment for his prostate. He suffers from sleep apnoea for which he uses a CPAP machine. The plaintiff told Dr Canaris that his "snoring used to be atrocious." The plaintiff also has diabetes which causes a problem with his feet. The plaintiff told Dr Canaris that his feet get sore and "get a bit puffy," which may indicate pedal oedema. Whether the pedal oedema is referable to the diabetes or not I do not know, but diabetes does cause interference with the nerve supply of the feet and can ultimately lead to diabetic ulceration of the feet. The plaintiff has had recent prostate surgery which appears to have been complicated. In addition, Dr Canaris points out the plaintiff also suffers from high cholesterol, coronary artery disease and osteoarthritis.
It appears to me that if I were to permit the defendant to have the plaintiff examined by a cardiologist or cardiac surgeon, I would also be required to permit the defendant to have him examined by a urologist and perhaps a neurologist for commenting on the state of the plaintiff's feet referable to the diabetes. I do not know what parts of the plaintiff's body are affected by osteoarthritis and that theoretically might entitle the defendant to ask for the plaintiff to be examined by a orthopaedic surgeon. To prevent all that, I suggested to the defendant that it might be appropriate for the defendant to require the plaintiff to undergo examination by a general physician who might be able to comment on all the various medical problems and orthopaedic problems from which the plaintiff currently suffers.
Accordingly, I determine that the plaintiff is not required to undergo examination by a neuropsychologist or by a cardiologist, but I permit the defendant to require the plaintiff to be examined by a general physician. The question or questions to be asked of the general physician are a matter for the defendant, but will no doubt be guided by the arguments advanced before me and by these reasons of judgment.
I make the following formal orders:
1. Plea 7 in the defendant's seconded amended defence filed on 20 November 2014 is struck out.
2. I grant leave to the defendant to re-plead plea 7 in accordance with these reasons.
3. I determine that the plaintiff is not required to submit to medical examination at the request of the defendant with either a neurophysiologist or a cardiologist, but I grant leave to the defendant to require the plaintiff to submit to a medical examination by a general physician.
4. I propose that costs of this motion be costs in the cause.
[2]
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Decision last updated: 22 April 2015