Lenihan v SAS Trustee Corporation

District Court of NSW|2020-10-13

Judgment

HIS HONOUR: The plaintiff, Mr Michael John Lenihan, is a former senior constable of police. He was attested as a probationary constable of police on 6 November 1981, and thereupon become a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906 ("the Act"). On 8 May 2005, the plaintiff was medically discharged from the NSW Police. He was found to be incapable of discharging the duties of his office on account of the infirmity of "adjustment disorder with anxiety and depression". That was a finding made by the defendant through its delegate, the Police Superannuation Advisory Committee ("PSAC"), on 24 April 2003.
The Commissioner of Police determined that that infirmity of mind was not caused by the plaintiff's having been hurt on duty. From that decision, the plaintiff brought an application to this Court, which was heard and determined by O'Toole DCJ on 27 April 2005. Her Honour found that the adjustment disorder with anxiety and depression, as specified by the certificate of PSAC dated 24 April 2003, was caused by the plaintiff's having been hurt on duty. The plaintiff thereupon became entitled to a hurt on duty pension under the Act.
On 10 September 2010, the defendant received an application by the plaintiff for an increase in his hurt on duty pension, pursuant to s 10(1A) of the Act. At its meeting on 24 February 2011, PSAC determined, on behalf of the defendant, that the plaintiff's rate of pension should be increased to 83.29% of the salary of his office, commencing on 10 September 2010, the date on which the defendant received the application for the pension increase.
On 14 January 2019, the plaintiff made a further application for an increase in his hurt on duty pension, again pursuant to s 10(1A) of the Act. That application was received by the defendant on 31 January 2019. At its meeting on 26 September 2019, PSAC, on behalf of the defendant, determined that the plaintiff's pension should be increased to 84.46 of the salary of his office, effective from 31 January 2019.

Background facts

Unfortunately, the reasons for decision of Judge O'Toole have not been transcribed. Her Honour's decision was given on 27 April 2005, and I am told that it would take at least six months for the tapes of that judgment to be found and to be transcribed. Accordingly, for the sake of recording the background to this matter, I shall cite some relevant evidence. However, from the outset, I wish to make it clear that there is very little dispute in the current case about any issue at all, and never has been.
On 3 April 2004, the plaintiff made a statement for the purposes of a piece of civil litigation. Many parts of that statement succinctly give the plaintiff's history, and I intend to let the plaintiff's words speak: "I was born in Gosford on … April 1982. My father … was a police officer and my mother … was a nurse. I am one of four children, with one older sister and two younger brothers. We lived briefly at The Entrance before moving to the Springfield and East Gosford area. I commenced school in 1966, and attended St Patrick's Primary School, then St Edward's College to year 10, before completing years 11 and 12 at Henry Kendall High School, leaving in 1979. I commenced work at Sterland Brothers, a construction and hardware firm at Gosford, in the position of trainee manager, before attending the New South Wales Police Academy on 17 August 1981. … I was attested as a constable of police from the Redfern Police Academy on 6 November 1981. I was briefly attached to the Gosford Police Station for my 'buddy training' before being stationed at Hornsby, performing General Duties. In 1983, I was transferred to the Prosecuting Branch, as a Court Constable, before returning to Hornsby in 1984, performing General Duties. In 1985, I was transferred to Criminal Investigation Duties, at Hornsby. I was designated as a detective in 1988. I was transferred to Pennant Hills Detectives in 1989, and then to The Entrance Detectives in 1990. In 1993, I was transferred to the Special Operations Group at Gosford, again performing Criminal Investigation Duties. In 1995, I was transferred to the Major Crime Squad, Drug Unit, at Gosford. In 1996, I was transferred to the Major Crime Squad North, at Chatswood, where I performed duties at the Drug Squad and then the Armed Hold Up Squad. In 1998, the Major Crime Squads were devolved, and I was transferred to Violent and Major Offenders Unit, at Crime Agencies. On Friday 31 March, 1995, whilst attached to the Major Crime Squad North, Gosford Drug Unit, I was involved in a cannabis eradication program on the Central Coast of New South Wales, named Operation Glyceme. Other police resources utilised included the DEA, Major Crime Squad North Drug Unit, Highway Patrol, Dog Squad, Police Air Wing, and General Duties officers. One of the sites targeted that day was a location in the McPherson State Forest at Bucketty. Information had been received from a National Parks and Wildlife officer that a cannabis plantation had been discovered at that location. Following information received from the observer in the police helicopter, I, along with a dog squad officer and a number of other police, were directed to a location approximately 800 metres north of The Rugby Track, Bucketty. At that location, I saw a large cannabis plantation, enclosed in black nylon mesh. The dog squad officer led the police from the cannabis plantation to a location a short distance away, where John Russell Lonie and Carla Groom were arrested. These two persons were taken to the plantation site, where Lonie pointed out a number of concealed man traps inside the plantation enclosure. Lonie and Groom were taken to premises at RMB3720B Wisemans Ferry Road, Somersby. The premises were searched with the written permission of Groom, and a large amount of cannabis leaf, in various stages of drying, was located. Lonie and Groom were conveyed to the Gosford Police Station, where they were interviewed and charged. Lonie was charged with cultivate prohibited plant, supply prohibited drug, possess prohibited drug and set man trap. Groom was charged with being knowingly concerned in the cultivation of a prohibited drug, being knowingly concerned in the supply of a prohibited drug and possess prohibited drug. On 5 August 1996, I was at the Major Crime Squad office, Chatswood, when I received a phone call from Murray Gregor. About 30 minutes later, in company with Detective Inspector O'Toole, I attended the street outside the Major Crime Squad office, where I saw a male person. He approached me and said, 'I am Murray Gregor from the Royal Commission. I have a summons here for you to appear on Friday.' He then handed me a summons to appear at the Police Royal Commission on Friday, 9 August 1996, before Justice Wood. I said, 'What's it about?' He said, 'I can't tell you, but we know you have done it, and you can't talk to anyone who might be involved.' I said, 'How do I know who I can't talk to if you won't tell me what it's about?' He then smiled and walked away. On 9 August 1996, I appeared at the Police Royal Commission before Justice Wood. Three allegations were made against me by protected witness code name GDU12. One of the allegations was in relation to the Lonie and Groom arrest. GDU12 alleged that I was involved in the theft of about $3,000 from Lonie, and this money was shared between myself, GDU12 and other officers. I denied this, and all the allegations made against me, as did all the officers that appeared that day in relation to the evidence of GDU12. I was very upset and humiliated by these false allegations. Lonie gave evidence at the Royal Commission, and stated, there was an amount of money missing. Between his arrest and my appearance at the Royal Commission, some 15 months, there was no complaint by Lonie or any other person that I am aware of in relation to any money missing to the Police Internal Affairs Branch, or any other body. When Lonie was asked who arrested and interviewed him, he could not even remember my name. Following the Royal Commission hearing that day, Justice Wood stated that he would forward the relevant paperwork to the Director of Public Prosecutions for a determination on any further action that might be considered against myself and the other police who appeared that day. On or about 15 January, 1998 I gave evidence at the Sydney District Court before [Judge] McGuire in the trial of Lonie and Groom. During cross examination, Counsel for Lonie and Groom made allegations in relation to the theft of moneys. These allegations and the manner in which they were made caused me great stress and embarrassment. Groom was acquitted by direction of the judge during the trial. At the completion of the trial, the jury returned [a] guilty verdict in relation to Lonie, and he received a custodial sentence from Judge McGuire. On or about 9 February 1998, I received a letter from Commander Clive Small, Commander, Crime Agencies, stating that no action will be taken against me in relation to the allegations made at the Police Royal Commission. From the time I received the subpoena to attend the Royal Commission on 5 August 1996 until I received this letter, I had not taken any sick leave. Shortly after receiving this letter, I was awarded the National Medal for Service from Commander Small. On or about 12 July 1998, following an application for transfer submitted by me, I was transferred from Criminal Investigation Duties, Crime Agency, to General Duties at Lithgow Police Station. Whilst attached to Lithgow Police Station, I resided at Bathurst, as I had some family in that area. During my tenure at Lithgow, on a regular basis, I performed duty at the level of shift supervisor (sergeant). I also was selected to perform duties in the detectives' office when they were short staffed. I was also commended by duty officer, Acting Inspector Devine, for topping the arrest rate. As stated above, I resided at Bathurst and travelled about 40 minutes to and from work. There were a number of other police who lived at Bathurst and were stationed at Lithgow. A carpool was organised, and this arrangement worked quite well. Whilst stationed at Lithgow, I applied for lateral transfers from Lithgow to Bathurst that were advertised in the Police Service Weekly. While I was quite happy at Lithgow, I felt that a transfer closer to home would save the travel from Bathurst to Lithgow. I also applied for a number of sergeant and senior sergeant positions that were advertised in the Police Service Weekly in various locations around the State."
The plaintiff's statement then becomes much more detailed, and my need to be succinct prevents me from quoting the further matter referred to by the plaintiff about the circumstances in which he found himself at Lithgow. In essence, the plaintiff's applications for promotion to sergeant were unsuccessful, and his applications to join detectives at either Lithgow or Bathurst were both stymied by Superintendent Holland, the Local Area Commander for the Chifley Area. The inference to be drawn from what I have read repeatedly in the papers before me is that Superintendent Holland had made a firm decision not to engage as a detective anyone who had been named in the Wood Royal Commission at any time as a person of interest, despite the fact that there was no adverse finding ever made by the Wood Royal Commission, or by the Director of Public Prosecutions, or by Police Internal Affairs, or by the PIC, about that detective. It is also clear that the plaintiff's applications for reappointment as a detective were supported wholeheartedly by his colleagues and by other senior officers below Superintendent Holland.
Eventually, the plaintiff went on sick leave, on 1 November 1999. There appears to be little doubt that the plaintiff went off work with the adjustment disorder that O'Toole DCJ found was caused by the plaintiff's having been hurt on duty. The plaintiff's reaction was not to the false allegations made to him by Lonie or Groom or GDU12, but by the stymieing of the plaintiff's career path because of an a priori view held by Superintendent Holland.
However, there was even more action in the Courts affecting the plaintiff after he went on sick leave. In the earlier proceedings before O'Toole DCJ, exhibit L was a copy of a judgment given by Blanch CJ of DC at Byron Bay on 1 April 2004. His Honour recorded that, contrary to what the plaintiff believed, that the initial jury trial before McGuire DCJ led to the conviction of both Lonie and Groom, at least on one of the charges against her, on 27 January 1998. They appealed to the Court of Criminal Appeal and, on 15 October 1999, the convictions were quashed. Lonie was ordered to stand trial again, but the Court of Criminal Appeal entered a verdict of acquittal in favour of Groom.
There was then a further trial, which was presided over by Stewart ADCJ. The statement of the plaintiff, from which I was earlier quoting, continues thus: "On 3 May 2000, I attended the Sydney District Court. I was standing with a number of police, including Detective Senior Constable Taylor. Carla Groom, the de facto of John Lonie, was standing very close by. I was approached by the Crown Prosecutor, Jennifer Wright, and her instructing solicitor, Krystin Bryan. Ms Wright asked me at length about my [psychiatric] condition, what medications I was on, and matters relating to my treatment. This conversation could have been easily heard by the police I was standing with and by Groom. I was extremely embarrassed, and I became quite upset following the conversation. Later that day, in the presence of Detective Senior Constable Taylor, I approached Krystin Bryan and raised a complaint with her about the conversation. She stated that she agreed with me that it must have been very embarrassing. On 4 May 2000, I gave evidence at the retrial of John Lonie. The allegations from the first trial were again put to me, and were again denied by me. As well as these allegations, a whole new set of allegations were made against me. It was put to me by counsel for Lonie that I had made lewd comments to an unnamed female in Lonie's company in the Central Coast Leagues Club some time in 1990. It was further alleged that following these comments, Lonie assaulted me, knocking me to the ground. It was further alleged that I got to my feet and said to Lonie, 'I will get you if it is the last thing I ever do,' before leaving the club. It was further alleged that I caused other police to plant cannabis found in the Lonie/Groom home prior to it being searched in 1995. I was astounded and very upset by these fresh allegations. They'd never been raised either Lonie's video interview in 1995, the Royal Commission in 1996 or the first trial in 1998. I strenuously deny these fresh allegations that were raised, in direct conflict with the conditions set down by Judge Stewart in writing prior to my appearance. During my entire evidence, there was no objections raised by the Crown, Jennifer Wright, nor Judge Stewart, about the breaching of those stated conditions. At the end of my evidence that day, Judge Stewart excused me from giving any further evidence, including evidence in re-examination, stating that he thought that 'I had been pushed too far'. At the completion of my evidence, I had a conversation with the Crown, Jennifer Wright, and expressed my disgust that she had not objected to the raising of fresh allegations. I was very upset and left Sydney immediately."
I should have stated before quoting that that when the plaintiff was served with a subpoena to give evidence at the second trial of Lonie in this Court, he had been certified as unfit to give evidence. His psychiatrist was required to appear before the District Court here in Sydney to give evidence about that, and eventually Stewart ADCJ ordered that the offender attend Court to give evidence in obedience with the subpoena, but imposed certain terms, which were clearly breached when the plaintiff was cross examined by Lonie, and no attempt was made by either the Crown Prosecutor or his Honour to ensure that the conditions upon which the plaintiff was to give evidence were adhered to. At the time, the plaintiff had been living in Wagga Wagga, but he then moved to Gosford, which is the area of this State in which he had grew up.
In November 2001, he was served with a statement of claim, issued out of this Court at Lismore on 30 March 2001. That statement of claim named the plaintiff as the first defendant and the State of New South Wales as the second defendant. The statement of claim claimed the sum of $750,000 for the torts of trespass to Lonie's property; trespass to Lonie's person, caused by his having been "wrongfully arrested"; and for false imprisonment. They also claimed against the defendant that he had maliciously prosecuted Lonie. I should have indicated earlier that Lonie was acquitted at the second trial. The defence to those proceedings was eventually taken up by the Crown, which settled the proceedings.
On 16 May 2002, Carla Groom commenced proceedings in this Court at Lismore, naming the plaintiff as first defendant and the State of New South Wales as the second defendant, and she claimed, like Lonie, $750,000, for the torts of assault, as a consequence of being wrongfully arrested; and false imprisonment; and malicious prosecution. Those proceedings were successfully defended. As I pointed out, they were heard and determined by Blanch CJ of DC at Byron Bay on 1 April 2004. His Honour entered a judgment for the defendants, and ordered the plaintiff to pay the costs of the defendants. His Honour made it very clear that he did not believe a word that was said by either Lonie or Groom at Ms Groom's civil action. He pointed out that she had not given evidence in the criminal proceedings, but if she had been, she would most certainly have been convicted.
One can accept that the plaintiff's psychiatric condition may have been made worse by being required to give evidence at Lonie's second trial, in obedience to a subpoena, when he was not thought fit by his treating psychiatrist to be able to give evidence; and by having to endure at least one civil trial; and suffering the implicit humiliation in the Crown's settling Lonie's civil action. It is clear that when Blanch CJ looked at everything, he was satisfied that Lonie and Groom were both telling lies. Furthermore, from my brief reading of his Honour's judgment, it would appear that the allegations as to the stealing of money and the incident in the Central Coast Leagues Club were made against another police officer, not the plaintiff, so that itself indicates a change of story, and because it had been clearly put by Lonie's counsel to the plaintiff that he was the person who was hit, and that he was the person who had made a threat of retribution.

Medical evidence

The medical evidence before me is all one way. Shortly after the plaintiff went off work, he was seen, on 9, 16 and 23 November 1999, by Mr Kevin Spencer, a psychologist retained by the NSW Police. No actual diagnosis is made by Mr Spencer, but he clearly accepted the genuineness of the plaintiff's complaints. He was seeing, at Wagga Wagga, Dr Dennis Berman, who referred the plaintiff to Dr Howard Whitaker, a consultant psychiatrist practising in Albury. He diagnosed an adjustment disorder with depression amounting to major depression. He believed, to use shorthand, that the condition was caused by a clearly identifiable stressor, being unjustly humiliated at work by the actions of Superintendent Holland.
The plaintiff came under Dr Whitaker's care in early January 2000. The plaintiff was reviewed by Dr Whitaker on 3 February, 17 February, 2 March 2000, but was unable to keep an appointment on 21 March 2000, and it was Dr Whitaker who certified the plaintiff as unfit to give evidence, and was the doctor who went to Sydney to give evidence on his behalf. There are a number of reports before me from Dr Whitaker commenting upon the plaintiff's inability to give evidence. Dr Whitaker re-examined the plaintiff on 16 May 2000, after he had given evidence, and noted that the plaintiff's depression had worsened, as he had expected. The plaintiff told Dr Whitaker that not only were the old accusations raised, but new ones had been made, despite the earlier ruling made by Stewart ADCJ.
On 20 October 2000, the plaintiff was seen by Dr Doron Samuell, a consultant psychiatrist for the New South Wales Police. Dr Samuell accepted that the plaintiff was certainly depressed, and had difficulty responding to his current antidepressant treatment. He thought the plaintiff was unfit to return to work, but thought that rehabilitation ought be offered to the plaintiff. Dr Samuell is a well-known and highly conservative psychiatrist, and I rarely see any report from him in which he certifies a policeman or former policeman to be ill. When the plaintiff moved back to Gosford, he came under the care of Dr D W Sooy, a general practitioner, who has looked after him for some time.
The rest of the medical evidence before me is largely medico legal. On 22 October 2002, two days after the plaintiff saw Dr Samuell, he was seen by Dr David Butler, a consultant psychiatrist for the plaintiff's then solicitors. He accepted that the plaintiff suffered from a chronic adjustment disorder, with depressed mood, for which he was then taking Zoloft, 100 milligrams per day, and had been for the previous eight to ten months. That had been prescribed by his general practitioner. Dr Butler thought the plaintiff was not well enough to carry out the duties of a police officer, and advised that the plaintiff should be medically retired.
On 5 March 2003, the plaintiff was seen by Dr Brian Potter, a psychiatrist for the defendant. He accepted an adjustment disorder with anxiety and depression, and expressed a guarded prognosis. He thought the plaintiff was incapable of discharging the full operational duties of his office. Those were opinions that were obviously before O'Toole DCJ.
For the purposes of the application the plaintiff made in 2010 for an increase in his hurt on duty pension, he was seen by Dr Christopher Canaris, at the request of the Police Association of New South Wales, and by Dr Peter Anderson for the defendant. Dr Canaris accepted the diagnosis of an adjustment disorder with anxiety and depression, that certified by PSAC. He said this: "In the circumstances, the fact that he is a psychologically much damaged man, who has lost his career and his good reputation, can come as no surprise. I note, he is not on any antidepressant medication - he says it helped him very little if at all. I note that antidepressant medication tends to be less effective in individuals who have been subject to stresses in which their core identity and integrity are called into question. Such folk often emerge from the process 'broken men' and their choice not to resort to antidepressants when they seem to have helped very little is eminently understandable. Sadly, the passage of time rarely provides healing." On the question of the extent of the incapacity, Dr Canaris said this: "Furthermore, your member continues to show major impairment, which impacts adversely on his capacity for employment because of his continuing work related psychological injury. He would be incapable of undertaking any full time employment. To date, he has worked only 'a couple of days a week', mowing lawns. While his hours may be restricted partly by a limited market for his services, I think his psychological injury has deprived him of the requisite drive and motivation to market his services or indeed to work longer hours. He is thus able to work no more than about 12 to 15 hours per week - as such, he could work only in a casual capacity. I don't think he would now be able to manage to obtain and maintain open market employment (as distinct from his restricted self-employment). He has very limited transferable skills, and his careworn demeanour, lack of enthusiasm, and prematurely aged appearance would all be major obstacles to his impressing a prospective employer at interview. His problems with concentration, persistence, and pace might well persuade an employer who did not take him on not to offer him further shifts. He certainly would be incapable of undertaking a job involving complex decision making, multitasking, or dealing with the public, thus placing a vast swathe of lower level jobs out of his reach. I note in this context that even packing shelves at a supermarket requires attention to detail, which would be problematic for your client. Consequently, he is capable only of simple labouring jobs that do not require specific skills. His impaired motivation and his problems with concentration, persistence, and pace place retraining into another position out of his reach." He then confirmed, the plaintiff was only capable of working a few hours a week, mowing lawns.
Dr Anderson saw the plaintiff on 14 October 2010. He took a work history, which is the one that the plaintiff gave to me, with just a little more detail. It is this: "After leaving the Police Force, he did some bar work and some doorman work. He did some labouring work and some rubbish removal. He does not want anything to do with investigatory work, and does not believe he is capable of doing investigatory work. He does do lawn mowing for the last two years, and he does this in a limited capacity. He finds it hard to get going, to start the activity. He does not see many people in the course of his work. His partner does the record keeping for him, and he states he could not cope with doing the record keeping himself. I went to the application letter from the Police Association dated 8 September 2010 and noted further information about his jobs after leaving the Police Force. He worked behind a bar at the Gosford Golf Club for approximately four six hours per week for about two months. He worked at the door at the Gosford Sailing Club, again for about four six hours per week, for a period of about six months. He felt embarrassed when he encountered people he had known as a police officer. He did about 12 months labouring, and was again embarrassed. The extent of his lawn mowing is 10 15 hours per week, and his tax return disclosed a gross income of $7,500." The plaintiff told me that his work as a labourer was in fact assisting a concreter, and that work was taken from him when his employer had a downturn in income and the plaintiff's services were excess to his employer's requirements.
Like the other doctors, Dr Anderson accepted that the plaintiff was suffering from an adjustment disorder with anxiety and depression. He accepted that the plaintiff's depression was moderately severe. He, in essence, agreed with Dr Canaris.
The determination made by PSAC in 2010 was based on the plaintiff's having an ability to work 12 hours a week as a garden labourer, compared to the potential income he would have had uninjured as a security advisor. That gave a determination of 82.54% incapacity in the open labour market, and when that was applied to the 12.25% available for a pension increase, the plaintiff's pension was increased to 83.29%.
For the purposes of the current proceedings, the plaintiff's solicitors have sent him to see Dr Ash Takyar, and the defendant has sent the plaintiff to see Dr Lee Ingram. The plaintiff was first seen by Dr Takyar on 12 December 2018. Dr Takyar took a history. The plaintiff was then self-employed as a lawn mower, working up to 10 15 hours in the summer and as low as two hours per week in the winter. His average number of hours was six hours per week. A section of Dr Takyar's report is headed Activities of Daily Living. However, it is clear to me that that section of the report was made to enable the doctor to calculate the plaintiff's permanent impairment rating for the purpose of determining his whole person impairment. That is currently irrelevant, but I just mention that the doctor found it to be a WPI of 24%. Part of that assessment required the doctor to assess "occupational functioning". However, on p 6 of his report, he provides a different heading, "Adaptation". Under that, he states this: "He would struggle to realistically work more than three five hours per week in a simpler role. His attendance may be more sporadic." That appears to me to be a theoretical exercise comparing the plaintiff's then ability to work with the pre injury work as a senior constable or detective senior constable of police. It does not deny the accuracy of the history recorded by Dr Takyar on p 4 of his report.
Dr Takyar accepted the certified infirmity. In answering specific questions put to him by those qualifying him, the doctor said that the plaintiff had no realistic capacity to work for more than three to five hours per week, in an employment that would be significantly lower grade and less complex than his pre injury work, with likely difficulty in the plaintiff's attending work.
Dr Ingram saw the plaintiff on 9 May 2019. He accepted that the plaintiff was genuine and consistent in his presentation. The doctor took a history, recorded on p 2 of his report, that the plaintiff was mowing lawns about five to six hours a week, and had been doing that for the past 10 to 12 years. However, in a lengthier history, recorded on p 4, he said this: "Mr Lenihan told me that he feels that things have got worse since the last pension increase in 2011. He told me his motivation has got worse, and he struggles just getting out of bed in the morning. He told me that his work has diminished over time. He told me that he used to be doing 15 hours, and now he might do five or six hours in the summer, two hours a week in the winter. He told me that he is losing clients because he forgets to turn up sometimes. He told me that he has been overseas a couple of times. He told me, a couple of friends took him away a couple of times in the last two years, including Thailand. He told me, he just does not do much at all."
There are a few other things that should be noted about the symptoms recorded by Dr Ingram. Page 5 of his report, refers to irregular sleep, nightmares, poor concentration, forgetfulness, poor appetite, and becoming anxious "about everything". The plaintiff told the doctor that he skips meals, and varies between doing his own cooking and obtaining take away food. The plaintiff told the doctor that he had no hobbies or interests, that he did listen to the radio, but he went to the pub each day at 4 o'clock. He did not go to the pub to meet other people, but he does know some other people there. He regularly drinks five beers each day, commencing at 4pm.
On p 6 of the report, the doctor noted that the plaintiff was isolated from people socially, and the complaints about concentration and about forgetfulness are reiterated. The plaintiff again told the doctor that he forgot appointments, such as arrangements made to mow others' lawns. He also reported that he had troubles with motivation. The plaintiff summed up to the doctor that his capacity to work was becoming "less and less".
On p 9, Dr Ingram said this: "In my opinion, Mr Lenihan's condition has deteriorated since his last pension increase. He has described more prominent depressive symptoms, low mood, problems with his concentration and decreased motivation. In my opinion, his capacity to work has deteriorated alongside this deterioration in his condition. He told me he was previously working about 15 hours a week, but is now down to about six, and he struggles with this. He told me that he struggles to get himself out of bed." The doctor accepted that the plaintiff might be able to do work other than that of a lawn mower, such as garden cleaning and window cleaning and carpet cleaning, but that the number of hours in which he could do such work was consistent with the number of hours in which he could work mowing lawns. Despite the history which he took, Dr Ingram said, on p 12 of his report, that he thought the plaintiff's capacity to work was limited to between six and ten hours a week.
Those qualifying Dr Ingram asked him specifically about whether the plaintiff's ability to work was affected by motivation. The doctor said this: "In my opinion, Mr Lenihan's capacity for work is affected by his motivation; however, this is a core symptom of the mental health condition. It is also noteworthy that he continues to work in spite of significant mental health and behavioural symptoms." In short, if the plaintiff have a problem with motivation, it is because of the certified infirmity, and not because of a lack of will by the plaintiff himself.
The defendant also qualified Mr Burchett, a vocational psychological, who works at the Vocational Capacity Centre. He accepted that the plaintiff could do work as a garden labourer, or lawn mowing, and a number of other jobs. He thought the plaintiff could work for about 15 hours per week.
There is a further report from Dr Takyar, dated 25 August 2020, but that clearly could not be before PSAC when it made its decision, that under appeal, on 25 September 2019. PSAC determined that the plaintiff could work, on average, four hours per week, mowing lawns, which would remunerate him with $110.83 per week, compared with the current rate of pay of the security consultant of $2,516. That effectively said, the plaintiff was 95.6% incapacitated for work in the open labour market readily accessible to him, uninjured, outside the Police Force. That assessment rating entitled the plaintiff to a top up of 11.71%, the maximum being 12.25%. And with the top up of 11.71%, the plaintiff's superannuation allowance became 84.46%.
In the fullest history taken by Dr Takyar on 26 November 2018, the plaintiff was said to be able to work 10 to 15 hours per week in summer and two hours per week in winter, that providing an average of six hours per week. Nevertheless, he expressed the opinion that the plaintiff was fit to work only for three to five hours per week. The average of "three to five" is four. In the fullest history taken by Dr Ingram, he was able to work five to six hours per week in summer, and two hours per week in winter. That can easily be seen to amount to an average of four hours per week. It is against this decision that the plaintiff brings this appeal.
There is other evidence to suggest that that is a realistic assessment of the plaintiff's earning capacity as at 26 September 2019. For example, exhibit 1 is a bank statement of the plaintiff for the period from 8 September 2019 to 7 December 2019. That records that between 26 September and 30 September, a period of four days, the plaintiff had an income from lawn mowing of $125. That, of course, is less than a week, and it ought be clear that the determination of the Police Superannuation Advisory Committee that the plaintiff could only earn $110.63. During the month of October 2019, the plaintiff's total earnings from lawn mowing were $1,580, which represents $50.97 per day or, if one divides the month into four weeks, $395 a week. In the month of November, the plaintiff earned a total of $240 from lawn mowing, which gives an average of $60 per week. There were two deposits before 7 December 2012. They amount in total to $1075. That represents earnings for one week. When I say "earnings", I mean gross earnings, without any deductions for overheads.
The assessment made by PSAC was based on the award rate for persons employed as a lawn mower. I am considering the decision of PSAC. I can only categorise its decision as reasonable. I had been thinking, prior to the decision of PSAC being explained to me in full by the tendering of exhibit 5, of determining that the plaintiff was able to work for about five hours per week, and PSAC determined about four.
Just to go back a bit, I should say this. The first thing the plaintiff had to prove was that there had been a material change in circumstance since the first assessment made by PSAC in 2010. In Collins v SASTC [2012] NSWDC 225; (2012) 11 DDCR 198, I said this: "The 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.' As 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. The 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." Here, that requirement has been satisfied, and the plaintiff had proved that there has been a deterioration since 2010, admirably spoken to by the defendant's own doctor, Dr Ingram.
I also must have regard to what the plaintiff had actually been earning. In Lembcke v SASTC [2003] NSWCA 136; (2003) 25 NSWCCR 464, Santow JA, with whom Ipp JA concurred, said this at [48]: "In determining incapacity, one may draw upon well-established principle that a worker's actual earnings are likely to be the measure of incapacity for work outside the police force, unless it is established that the worker's actual earnings are not a proper test: Pira Pty Ltd v Tucker (1996) 14 NSWCCR 26 at 31-2 applying the reasoning in Atkin v Goodyear Tyre & Rubber Co Australia Ltd (1945) 46 SR(NSW) 20." I note with some relief that although their Honours in Lembcke said that the approach I had taken up until that time in interpretation of the Act was incorrect, that at least they could rely on the decision that I made in Tucker v Pira Pty Ltd.
The plaintiff's case is not so much that the wrong decision was made by PSAC, but that the plaintiff is now totally incapacitated, and the Court should so find. The plaintiff, in that regard, relies upon the opinions expressed by Dr Takyar in his report of 25 August 2020, following upon his examination of the plaintiff on 23 August 2020 by Telehealth. At the foot of p 2 of that report, Dr Takyar noted that the letter qualifying him contained this matter: "Mr Lenihan is currently not employed in any capacity, having sold lawn mowing equipment. Our client instructs that he has ceased work on account of lack of motivation and inability to be reliable." Under the heading "Work Progress", Dr Lenihan recorded this: "Mr Lenihan had been working in lawn mowing duties for approximately 15 years, but has now ceased participation in the business, and sold his equipment at the end of July 2020. He described a slow decline in his ability to work because of the impact of his depressive and anxiety symptoms, struggling with a lack of energy and motivation from a depressive standpoint, and feeling overwhelmed from an anxiety perspective. He stated that his work had gradually declined as he struggled to cope with it. He stated that his hours had gradually decreased to 'maybe a couple of hours a week, wasn't much at all' before further declining and ceasing. In relation to the letter of instruction, I had noted, there was a question in relation to carpet cleaning. He stated, he had never worked in such duties. He stated that he does not travel to new places any more, generally only leaving his house around five times a week or so, and only within his local area." Under the heading "Psychosocial Progress", the plaintiff told the doctor about his "current relationship", which had persisted for 12 months but was not a live in relationship, and was being negatively affected by the plaintiff's condition. He also described his relationship with his adult children as being "okay", which was less positively than he had stated it previously. Later in the report, the doctor noted that the plaintiff told him that his partner helps him cleaning his house and cooking for him, and also that he did not like to drive too much, which the doctor thought was due to anxiety, and which was impinging upon his relationship with his lady friend.
Under the heading "Psychiatric Symptom Progress", the doctor refers to what clearly is a slow deterioration in things such as the plaintiff's mood and concentration, and experience of anxiety, sleep interruption, and fatigue. The plaintiff told the doctor, he felt fatigued all the time.
Dr Takyar expressed this opinion: "He eventually sold his lawn mowing equipment in late July 2020, and is not now working at all. I note evidence of worsening in certain depressive and anxiety symptoms. My view is, Mr Lenihan's chronic, entrenched symptoms now impart occupational incapacity, which is reflected in the gradual failure of his attempt to work." I infer that what the doctor is saying by using the words "occupational incapacity" is in fact total incapacity for work. In another section of the report, in response to certain specific questions, Dr Takyar expressed this view: "…realistically, Mr Lenihan's psychiatric symptoms impair his ability to obtain any employment on the open and competitive labour market for which he has skill, training or experience." At the foot of p 6 and the top of p 7 of the report, he notices a worsening of some of the plaintiff's symptoms, which I sought to discuss earlier.
If it be open to me - and I use the subjunctive mood advisedly - I would find that the plaintiff has been totally incapacitated since 1 August 2020, and determine that his rate of pension should be increased to 85% of the salary of his office as at that time. The question, however, is, is such a determination open to me?
The text of s 21 of the Act should be considered. Section 21 provides this: "Determination by District Court (1) A person who considers himself or herself aggrieved by: (a) a decision made by STC on a matter that arises under this Act by reason of a member of the police force being hurt on duty, or (b) a decision made by the Commissioner of Police under section 10A (1), 10B (3) (a), 12C (1), 12C (2) or 12D (4) (a), may, within the period of 6 months after the person is notified of that decision, apply to the District Court for a determination in relation to that decision. (2) Notification of a decision under subsection (1) is to be given in writing. (3) STC or the Commissioner of Police, as the case may be, is entitled to be represented at the hearing of an application under this section. (4) The District 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 was made: (a) be confirmed, or (b) be set aside and replaced by a different decision made by the District Court. (5) The District Court shall not make a decision referred to in subsection (4) (b) unless STC or the Commissioner of Police, as the case may be, could pursuant to this Act make that decision. (6) Where the District Court makes a decision referred to in subsection (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." The remaining subsections of s 21 are not currently relevant. First of all, the plaintiff must be aggrieved by a decision made by the defendant. If he be so aggrieved, he can, within six months of the decision by which he is aggrieved, apply to this Court for a fresh determination of that decision. After considering the application that has been made, the Court may make a decision to either confirm the earlier decision of the STC or to set it aside and replace it by a different decision made by me. However, under subs (5), the Court is not to make a decision, under subs (4)(b), unless the defendant could itself have made that decision.
The defendant could not have made a decision, on 26 September 2019, that the plaintiff was totally incapacitated for work. The simple fact is that he was not. He continued working up until the end of July 2020. Exhibit A shows that an invoice was given on 22 April 2020 for $1,180, and was eventually paid. Another invoice was issued on 15 June 2020, for $530, and as at 16 June 2020 was unpaid. There is clearly a gap in the invoices, that has been explained because the plaintiff let one of his grandchildren play with his computer, and appears to have interfered with the program that recorded the invoices. However, exhibit 1, the bank statement tendered by the defendant, does assist in showing that there was still regular income coming in from the plaintiff's exertions in October, November and December 2019.
There was, in fact, no evidence before PSAC, that is, the defendant, that the plaintiff was totally incapacitated as at the date of PSAC's determination on 26 September 2019. Merely from the text of s 21, I do not believe that I can replace the decision made by the defendant on 26 September 2019 with a decision based upon evidence available that enables me to determine that he became totally incapacitated on or about 1 August 2010.
Furthermore, other provisions of the Act point in the same direction. For example, s 10 governs superannuation allowances where the member is hurt on duty. Section 10(1D) provides this: "STC may: (a) make a determination at any time of an additional amount of a superannuation allowance under this section, and (b) vary any such determination at any time, and may direct that the determination or variation take effect from such date as STC considers appropriate." The fact is that when the evidence was received, in August of this year, that the plaintiff had stopped work, he could have then applied again to the defendant for a fresh determination based upon the evidence of Dr Takyar. The plaintiff was then totally incapacitated, and the defendant may have acceded to that application.
The first decision maker is not this Court but the defendant. The defendant makes a determination, and only if a person be aggrieved by that determination can he bring an application to this Court, and the Court can only then consider the evidence that was available, or could have been available, to the defendant when it made its decision.
It is true that this is a hearing de novo. Fresh evidence can be introduced to inform the Court of what the actual facts were at the time the decision was made by PSAC. In a usual case, the oral evidence of a plaintiff may give the Court more information and insight into the relevant facts at the time the decision was made than was available to PSAC, which certainly does not hear a plaintiff give evidence and be tested in cross examination to ascertain whether that evidence be truthful or otherwise.
The fact that fresh evidence can be adduced at a hearing de novo does not change the Court's statutory role in redetermining an issue previously determined by the defendant. Again, it appears to me that it is not open to me, on this application, to grant the relief which the plaintiff, in essence, claims: a finding of total incapacity. Mr Hammond, for the plaintiff, referred me to my decision in Miles v SASTC [2016] NSWDC 56. In that case, I said this: "Finally, I should address another argument raised by Mr Weightman. It was that the actual work being done by the plaintiff for his wife's business was so small, so minor, so trifling, that I would ignore it, relying on the principle that de minimis lex non curat. He then referred me to what I said in Collins v SASTC [2012] NSWDC 225; (2012) 11 DDCR 198 between [34] and [41] and, in particular, to an authority I cited, Moran Health Care Services v Woods (1997) 14 NSWCCR 499 (C.A.) in which Mason P (with whom Beazley JA and Grove AJA concurred) cited the principle as de minimis non curat lex at 504B, using the word order of a famous limerick. Since the plaintiff has not persuaded me that there has been any change in circumstance since 2 February 2006, that there has been any change in economic circumstances since then, it necessarily follows that I am not persuaded that whatever the value of the 2 to 3 hours' work that the plaintiff does for his wife's business has, that it is a true reflection of what the plaintiff can earn in employment or self-employment outside the police force." The argument here was that the plaintiff's ability to earn was so minimal, as at the time that PSAC made its decision, that I should ignore it as being trivial, and in effect find the plaintiff was totally incapacitated as at 26 September 2019. With the utmost respect, I cannot accede to that argument. It is not as if the plaintiff was capable of earning money for 30 minutes a week. This plaintiff, after 26 September 2019, was clearly working and rendering accounts which were bringing in, at times, rather large sums of money. I reject the application of the principle that de minimis lex non curat in this matter.
For those reasons, I confirm the decision of the defendant made on 26 September 2019. I reiterate, however, for the benefit of those concerned, that should the plaintiff make an application to the defendant for a finding of total incapacity from on or about 1 August 2020, it should be favourably considered, because it is consistent with the evidence that has been put before me on this application.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 January 2021

(2003) 25 NSWCCR 464

(1997) 14 NSWCCR 499

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