[This Headnote is not to be read as part of the judgment]
This judgment relates to an appeal from a decision of a judge in the District Court confirming a decision of the Commissioner of Police dismissing Mr Learmont's claim for a gratuity for injuries he suffered during an incident on 3 March 1990 in the course of his duty as a police officer.
On 27 October 2010, Mr Learmont applied to the SAS Trustee Corporation (STC), the corporation administering the relevant fund, for a gratuity under s 12D of the Police Regulation (Superannuation) Act 1906 (NSW) (the Act), claiming permanent impairment to his back and both legs at or above the knee. On 27 February 2013, the Commissioner determined that Mr Learmont's back and leg injuries were not caused by him being "hurt on duty" within the meaning of the Act.
Mr Learmont then commenced proceedings in the District Court under s 21 of the Act, seeking to set aside the decision of the Commissioner. A hearing under s 21 of the Act proceeds as a hearing de novo. The injury pleaded in the statement of claim was simply injury to the "lower back". Much of the evidence admitted in the District Court went to the nature and consequences of the back injury sustained in the incident.
The primary judge confirmed the decision of the Commissioner. His Honour identified the "injury to which the claim relates", for the purposes of s 12D(4), as a lower back injury capable of leading to the loss of efficient use of each leg and determined that Mr Learmont had not sustained such an injury on 3 March 1990.
Mr Learmont challenged the primary judge's decision by way of both an appeal and a summons seeking relief in this Court's supervisory jurisdiction. Mr Learmont argued that the role of the Commissioner (and therefore of the primary judge) under s 12D was confined to determining whether Mr Learmont had sustained a back injury of some kind on 3 March 1990 and did not extend to deciding what part of his back had been injured and the pathological consequences of that injury; an issue which he argued was in the province of the STC.
Held dismissing the appeal and summons with costs, by Ward JA (Beazley P and Sackville AJA agreeing at [1] and [101], respectively):
(1) (at [60]; [68]) that the primary judge did not err in addressing the question whether Mr Learmont had sustained a lower (not upper) back injury while on duty, in circumstances where no upper back injury was pleaded and therefore could not have been the "injury to which the claim relates" for the purposes of s 12D(4) of the Act. If his Honour was incorrect in narrowing the question to whether there was injury to the lower back capable of leading to permanent impairment of the use of the legs, it would be an error in the fact-finding process and not an error of law.
(2) (at [77]) that while there was a basis for complaint that the primary judge impermissibly referred to matters within his own medical knowledge and not on the evidence, no procedural unfairness was thereby occasioned.
(3) (at [81]) that the primary judge did not fail to address Mr Learmont's submission regarding the division of powers between the STC and the Commissioner under s 12D(4). His Honour explained why he considered it necessary to consider the nature of the injury to which the claim related, i.e., that, since "back" injury could refer to different parts of the back, it was necessary to determine what was claimed.
(4) (at [91]; [99]) that the primary judge's finding that Mr Learmont sustained a back injury to the upper thoracic spine during the incident was not illogical and unreasonable when the evidence is considered as a whole.