NSWNSWDC

Mackie v SAS Trustee Corporation

[2017] NSWDC 232

District Court of NSW|2017-04-20

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At a glance

Source facts

Court

District Court of NSW

Decision date

2017-04-20

Catchwords

(2003) 56 NSWLR 736

Source

Original judgment source is linked above.

Catchwords

(2003) 56 NSWLR 736

Judgment (25 paragraphs)

[1]

Judgment

HIS HONOUR: The plaintiff is a former senior sergeant of police. She was attested as a probationary constable of police on 7 November 1986 and thereupon became a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906 ("the Act"). She ceased her work as a senior sergeant of police on 9 November 2009. On 23 February 2012, the Police Superannuation Advisory Committee (PSAC) determined that the plaintiff was incapable of discharging the duties of her office on account of these infirmities: "Major depressive disorder of moderate severity; Lumbar spondylosis; Chronic soft tissue injuries to the neck, thoracic spine, lumbar spine and right knee". On 6 March 2012, the Commissioner of Police, by his delegate, determined that each of those conditions was caused by the plaintiff's having been hurt on duty. In essence, the Commissioner of Police determined that the injury to the plaintiff's right knee was caused on 12 March 1993, the injury to her neck was caused on 3 May 1995, the injury to her back was caused by incidents on 11 June 1997 and 15 January 2006, and that the psychiatric or psychological infirmity was caused by a disease of gradual process which attracted a deemed date of injury of 9 December 2009, the day on which the plaintiff last performed at work as a senior sergeant of police. On 15 March 2012, the plaintiff was medically discharged from the New South Wales Police Force. On the following day, she commenced to receive a superannuation allowance pursuant to s 10(1A)(a) of the Act.
On 25 August 2015, the plaintiff, by her solicitors, sent to the defendant an application form for an increase in her hurt on duty superannuation allowance, or pension, pursuant to s 10(1A)(b) and/or (c) of the Act. That application was received by the defendant on 31 August 2015. On 25 February 2016, PSAC, acting under delegation from the defendant, determined to approve an increase in the plaintiff's pension benefit from the basic 72.75% of the salary of her office pursuant to s 10(1A)(a) to 79.47% of the salary of her office as at the date of her medical discharge. The amount of the increase allowed by PSAC was 6.72% of the salary of her office which represents approximately 55% of the amount provided by s 10(1A)(b)(i). PSAC also determined that the pension increase would be payable from 31 August 2014, one year prior to the date of the receipt of the plaintiff's application, in conformity with my decision of Carswell v SAS Trustee Corporation [2014] NSWDC 47, which date was one of the requests for backdating made by the plaintiff in her application. Considering herself aggrieved by those decisions of the defendant, made under delegation by PSAC, the plaintiff brings an application to this Court pursuant to s 21 of the Act.

[4]

Neck Injury

On 3 May 1995 the plaintiff injured her neck in a training room at Macquarie Fields Police Station. She was undergoing officer survival training. She was engaged in a tactic known as a leg sweep by which a constable sweeps the legs of a person in front of him or her causing that person to fall to the ground. On this occasion the plaintiff was playing the role of the offender to be arrested and her legs were swept from under her and she slammed against the ground, injuring her neck. She saw her general practitioner, Dr Louis Whitton, on 8 May 1995. Dr Whitton diagnosed a "whiplash injury" of the neck. He believed it to be a classic hypertension type injury of the neck. The plaintiff was given a few days off work and then given light duties for a week. Plain X rays were taken on 8 May 1995. They were not reported as showing any abnormality. Subsequent radiological investigations show the onset of cervical spondylosis, generally thought to be a degenerative disease of the vertebrae resulting from degeneration of the discs. Such a condition can be induced by trauma but is usually thought to be age related. The Commissioner of Police has accepted that the neck symptoms which the plaintiff had at the time that she was medically discharged were caused by this event, and I can approach the matter as either the frank injury initiated the cervical spondylosis or accelerated the process that led to the cervical spondylosis.
When seen by Dr Whitton on 16 May 1995, he thought the plaintiff was fit to return to full operational police work on 17 May 1995 but was re prescribed painkilling medication in case of a recurrence of symptoms. Thereafter, the plaintiff was seen again, as far as her neck was concerned, by Dr Whitton in April 2002 and January 2003. When the plaintiff was seen by Dr Whitton on 19 April 2002 about her neck, she reported that she had commenced chiropracty, seeking treatment for symptoms in her neck. In May 2002, further radiological investigations of the neck were prescribed by Dr Whitton but they again showed no abnormality. The report made by Dr Whitton concerning the plaintiff's neck is dated 4 August 2003. It speaks to his treatment of her neck condition up until that time. I know that subsequently the plaintiff must have been having symptoms in her neck because on 18 February 2008 the plaintiff underwent, inter alia, an X ray of her neck. In July 2008, the plaintiff commenced to see an osteopath, Ms Sally Watson, who commenced treating the plaintiff for symptoms in both her cervical and lumbar spines. The evidence clearly tells me that the plaintiff has developed the degenerative condition in her neck and that is clearly related in some fashion to the event of 3 May 1995.

[5]

Back Injury

On 11 June 1997, whilst serving with the Liverpool Detectives, the plaintiff injured her back at the beltline when she leant forward to grab a message pad. That led to her seeing Dr John Sheehy, a neurosurgeon at St Vincent's Hospital on 20 January 1999. I know that there is a report bearing that date because it is referred by Dr Scougall in his report of 4 April 2011, but the report of Dr Sheehy has not been put before me. The relevant part of Dr Scougall's report is this: "In January 1999, she saw Dr Whitton. She was referred to Dr Sheehy, Neurosurgeon, St Vincent's Hospital. In his report 20 January 1999, Dr Sheehy states that she had been complaining of pain in each buttock and the back of each thigh. He said a CT scan examination of her lumbar spine in 1996 had demonstrated changes in the lower lumbar facet joints consistent with her age. There was nothing to suggest nerve root compromise 'which is likely to be a consequence of a facet joint disturbance'. He recommended conservative treatment." The reference in that history to the event of 1996 is clearly a reference to the event which actually occurred on 11 June 1997. The other substantive injury to the plaintiff's low back occurred at the Granville Police Station when she was recalled to uniform duties in order to respond to those events generally referred to as the "Cronulla riots". She was seconded to the Granville Police Station, was wearing full uniform including her appointments and they caused an increase, at least, or a recurrence of, the plaintiff's low back symptoms.
As I have earlier indicated, the Commissioner of Police accepted that the events of 11 June 1997 and 15 January 2006 were the cause of the plaintiff's back symptoms which were part of the reason that she was medically discharged. Again, the medical evidence tells me that the plaintiff has lumbar spondylosis. That is a degenerative condition of the vertebrae subsequent to degenerative disc disease in the low back which could be consistent with age or trauma or both. Whether there was an aggravation of an underlying condition or the triggering off of lumbar spondylosis is an interesting but unnecessary question to be decided. It must be accepted that the plaintiff's low back symptoms resulting from her lumbar spondylosis are duty related.

[6]

Psychiatric Injury

At the Liverpool Detectives office, an incident occurred which is indicative of stress that the plaintiff experienced while working at that office and was an omen or indication of the sort of stress which eventually put the plaintiff off work. On 16 November 2010, the plaintiff was seen by Dr Melissa Barrett, a consultant psychiatrist, at the request of the Commissioner of Police. Essentially the plaintiff attended upon Dr Barrett at the request of the Commissioner of Police because of the stress which the plaintiff was experiencing immediately prior to stopping work in December 2009. Under the heading "Past Psychiatric History", Dr Barrett recorded this: "She denied a history of depression, deliberate self-harm or suicide attempts. She has no history of hypomanic episodes. She described some distress regarding a previous episode in the workplace in 1998 [sic] when she was presented with a sex toy for her birthday in front of ten people at a previous police station. At this stage she made a complaint to the supervisor and the other police officers involved were reprimanded." This event happened at the Liverpool Detectives office which the plaintiff described as having the atmosphere of a men's locker room. This episode is also described by Dr Lee Ingram, a psychiatrist retained on behalf of the defendant who interviewed the plaintiff on 19 November 2005. That report makes it clear that the incident occurred when the plaintiff was at the Liverpool Detectives office and this "present" was given to the plaintiff for her birthday which indicates it would have been on 11 August in the period between 1996 and 1999. According to the history obtained by Dr Ingram, the plaintiff received constant jibes for weeks after the presentation of that item to her. Whether it had anything to do with the plaintiff's transfer from the Liverpool Detectives office is unclear from the evidence, but the event was significant.
It is also now recorded in the longer report dated 27 January 2016 of 11 pages, made by Professor Bright, at p 3: "Ms Mackie said she enjoyed most of her detective work, however, it was here that she appears to have started experiencing problems with the culture extant in the police at that time. In particular, she felt she was working in a boys' club. She explained that there was one other female colleague on the roster, however, she was very often off doing committee work or it was Ms Mackie's opinion that she was often given a relatively easy time. Ms Mackie believes this was in part due to her looks. Ms Mackie thought that she was bullied and cited an example of an occasion where her colleagues thought it amusing to buy her a sex toy for her birthday. Ms Mackie said, in retrospect, she realised that she started to have panic attacks during her time in the Liverpool Detectives. She cited an example when she went on a dive at Shellharbour and she experienced a panic attack. In addition, she was exposed to a series of particularly harrowing scenes in the course of her duties." The conduct of the plaintiff's fellow police in presenting her with a sex toy as a birthday present can only be described as puerile, and designed to humiliate. It was extremely poor behaviour by the plaintiff's male colleagues and one which would undoubtedly throw stress on any lady irrespective of any attempt to take it in good stead or good part.
The plaintiff was again experiencing "macho" behaviour when she was working in the Simulated Operations Unit towards the end of her actual working career in the NSW Police. The plaintiff first started experiencing what could be described as psychological symptoms of bullying and/or harassment in about November 2008. Nevertheless, she persisted with her duties until 9 December 2009, albeit that during that period she took a number of weeks off work using accumulated annual leave or other forms of leave. Dr Whitton, in a report dated 16 April 2010, recorded this history: "This patient presented initially in connection with her work related anxiety disorder on 26 August 2009. The patient stated that she had had chronic anxiety symptoms, which had been gradually developing over many months, due to conflict with a peer police officer in her immediate vicinity at her workplace. The results of this conflict had caused her extreme tearfulness and insomnia, and an increase in muscle tension pain in her neck and lower back. No other injury, physical or psychological, had been sustained that she felt was related to her current feelings. Her diagnosis of anxiety disorder resulting in secondary increased muscle spasm and tension of areas that were already under another workers compensation claim was made." Dr Whitton prescribed psychological therapy as well as massage therapy for what may have been psychosomatic symptoms in the plaintiff's neck and back.
Eventually, the plaintiff was sent to see Ms Paula Farrugia, a psychologist, whom she first consulted on 17 December 2009, and was later to be seen by Dr Selwyn Smith, a consultant psychiatrist who first saw her on 3 February 2010. When seen by Ms Farrugia on 17 December 2009, the plaintiff was in visible distress, had psychomotor agitation and episodic weeping. Ms Farrugia diagnosed an adjustment disorder with mixed anxiety and depressed mood. She carried out DASS testing. The testing made on 17 December 2009 revealed depression and anxiety within the extremely severe range and stress within the moderate range. When seen by Dr Smith on 3 February 2010, this history was recorded: "Virginia reported that she went off work on 9 December 2009. She described 'spitting the dummy'. She had previously, in August 2009, experienced work related conflicts and took time off work. She was unaware of what was happening to her. She stated that when she returned, she was involved in the establishment of an audio visual unit. She became most distressed when one of her co workers accused her of 'stuffing it up'. She stated that she experienced heightened levels of anxiety and distress and took some sick leave in regard to her emotional responses. In regard to the recent incident precipitating her leaving work in December 2009, Virginia reported being highly anxious and agitated. She has also been most tearful. She felt isolated at work prior to going off. She felt unsupported. She felt like 'an outcast'. Since being away, she has partially improved." Dr Smith made a diagnosis very similar to that of Ms Farrugia. He diagnosed an adjustment disorder with depressed and anxious mood. Dr Smith commenced a course of treatment, which it is not necessary for me to describe.
As I have already indicated, almost a year after the plaintiff ceased working, she saw, for the Commissioner of Police, Dr Melissa Barrett. Dr Barrett diagnosed a major depressive disorder. On the question of causation, Dr Barrett said this: "She reported the onset of this condition at its current level of severity since November 2009. However, she had experienced some symptoms from November 2008. The onset of this is temporally related to heightened stress and anxiety that occurred as a consequence of her reports of a fellow officer's comments towards her which she interpreted as being insulting. This occurred on [sic] the background of a previous incident in the workplace, which caused her significant distress, and also on the background of exposure to multiple traumatic events throughout her service as a police officer." Dr Barrett was clearly of the view that the plaintiff's psychiatric disorder was caused by her having been hurt on duty. The plaintiff was seen, at the request of her solicitors, by Dr Peter Anderson on 16 June 2011. The diagnosis of Dr Anderson was of a major depressive disorder, the same diagnosis reached by Dr Barrett.
On 5 November 2011, the plaintiff made an application for medical discharge. For that purpose, she was sent by the defendant to see Dr Himalee Abeya, a consultant psychiatrist. Dr Abeya saw the plaintiff on 10 November 2011. The plaintiff described a number of different symptoms to Dr Abeya. They included these: considerable difficulty with her sleep; reduced motivation; lack of interest in most activities; poor self esteem; feeling unwanted; of having "peaks and troughs" in her feelings and other times being so badly low that she did not feel like doing anything at all; her appetite was irregular; there was also some suicidal ideation present. Under the heading "Mental State Examination", Dr Abeya recorded this: "There were times, especially when describing her work, when she cried outright. She was tearful throughout the latter part of the interview. She maintained good eye contact, and a reasonable level of rapport was established." A little later, the doctor noted that the plaintiff presented as quite depressed in her mood, both objectively and subjectively. I mention those things because when the plaintiff was giving her evidence, she was at times liable and was clearly distressed to the point of tears on occasions when describing certain aspects of her work and certain aspects of the effect that her work has had upon her present life. Like Dr Barrett and Dr Anderson, Dr Abeya diagnosed a major depressive disorder. She accepted that there was a direct causal relationship between the plaintiff's work and her illness, although Dr Abeya herself thought it was difficult to define any particular incident or injury as the cause of the plaintiff's major depressive disorder.
Clearly PSAC relied upon that opinion in certifying the plaintiff as being disabled by the infirmity of a major depressive disorder of moderate severity. It was Dr Abeya who said that the plaintiff's major depressive disorder was of moderate severity. It is clear from the evidence before me that the plaintiff's major depressive disorder has not abated, nor have the symptoms which the plaintiff has intermittently in her neck, thoracic and lumbar spines and right knee. However, the major cause of the plaintiff's incapacity for her pre injury work is the major depressive disorder. As to the continuance of the plaintiff's major depressive disorder and the extent of it, the following ought be observed.
I have already pointed out that Ms Farrugia said that the DASS testing carried out on 17 December 2009 showed that the plaintiff's depression scale and anxiety scale were both extremely severe but that her stress scale was moderate. Ms Farrugia's report of 4 June 2015 sets out the results of further DASS testing carried out on 27 July 2013, 1 August 2014, 1 May 2015 and 22 May 2015. For each of depression and anxiety for those tests, the plaintiff was still in the extremely severe range, and for stress, the plaintiff was in the severe range on each of those four occasions. The same testing was carried out by Professor Bright, also a psychologist, on 18 January 2016 when he saw the plaintiff for the defendant. Dr Bright confirms the plaintiff's depression and anxiety were both in the extremely severe range and that her stress was in the severe range. In other words, there cannot be seen to have been any abatement or any significant change in the level of the plaintiff's major depressive disorder over the time since stopping work in December 2009, except an increase in the level of stress probably following upon her discharge from the NSW Police.

[7]

Advice Following Discharge

At the time of her discharge, the plaintiff was sent a letter by the defendant which bears date 10 April 2012. It formally advised the plaintiff of the certifications made by PSAC and by the Commissioner of Police and as to her entitlement to the basic pension provided by s 10(1A)(a) of the Act and of how that pension had been calculated and what was payable to her each fortnight, net. On the second page of the letter is a heading "Increased Pension Benefits". It commences thus: "As the injury relating to your discharge occurred after 21 November 1979, you are advised of the provisions of s 10(1A) of the Police Regulation (Superannuation) Act 1906 as set out hereunder:" The document then sets out the provisions of s 10(1A) and then continues: "Should you desire to lodge a claim for payment of additional pension as set out in s 10(1A), it will be necessary for you to submit a claim for increased benefits in writing, supported by current specialist medical evidence covering the following questions: If, in the Specialist's opinion, you are precluded from performing some types of employment activities, is it also his opinion that you are capable of performing some work in an open labour market situation? What types of employment activity would he consider to be within your capability? The types of work which you would be incapable of performing, having regard to your infirmity? Would it be reasonable to expect further treatment to improve your condition?" What I just quoted ends at the foot of p 2 of the letter. Page 3 of the letter provides information as to commutation of part of the plaintiff's hurt on duty pension and the final page refers to commutation at age 55 or 60. It ought be noted that the defendant did not draw the plaintiff's attention to any particular time limit for making an application for an increased pension either as a matter of law or as a matter of its usual practice. The plaintiff made no application for increased pension benefits immediately or shortly after the letter of 10 April 2012 was received by her. She did, however, find some employment.

[8]

Work After Discharge

On 14 September 2012, she commenced working for Olive Green Organics which had a warehouse at Minto. The warehouse manager was Mrs Deborah Mary Smith, who had been until that time a close personal friend of the plaintiff and who remains such a friend. They met in the year 2000 when the plaintiff was heavily involved in the sport of softball and when Ms Smith's son joined the softball club to play that sport. The two ladies formed a friendship which is close and has persisted, each assisting the other both physically and emotionally. The owner of Olive Green Organics is a lady described in the evidence as Camilla. When the plaintiff started working at Olive Green Organics, the manager of the business was a gentleman known as Antonio, and at that time Antonio and Camilla were in a relationship, either de jure or de facto, as man and wife. They had a child together. The plaintiff's work required her to work four days per week at the warehouse. Only three people worked there, Antonio, who appears to have worked in an upstairs office, and the plaintiff and Ms Smith, and those two ladies worked together. Essentially the plaintiff was picking and packing stock from the warehouse in order to fulfil orders that had been given to the business.
Ms Smith gave the plaintiff an order, it was picked from the contents of the warehouse by the plaintiff who put the ordered goods on a table which the goods were then checked by Ms Smith and the goods were then packed by the plaintiff. These were two close friends working together. The relationship of each of the ladies to Antonio was a good one and there is no suggestion of any disharmony whatever at the workplace when the plaintiff commenced working there. Nevertheless there were times when the plaintiff was distressed by her symptoms, and when she needed "time out", it was given to her by Ms Smith, whether it was ten minutes, fifteen minutes or a half hour, the plaintiff was free to abandon her work to take time off her job and to compose herself before returning to her work. From what was told to me by the plaintiff and Ms Smith, this appeared to have been not an irregular occurrence. When there were no orders to pick, the plaintiff would restack the shelves of the warehouse, and if there was no work of that nature to perform, the plaintiff involved herself in cleaning the warehouse.
This was a real job, not some form of made up job, but it was worked in a very congenial environment with another lady, who could be described as the plaintiff's close friend, and with a general manager, who worked in an upstairs office, and his interaction with both Ms Smith and the plaintiff was cordial. It would be difficult to imagine a more congenial workplace for a lady suffering the plaintiff's psychological condition. Equally it is clear the plaintiff could work at her own pace and take time out as needed or even take time just chatting away with her friend about her problems. Indeed when Ms Smith gave evidence, she explained that they were talking all the time, and then said something which made both counsel and I bemused because Ms Smith pointed out that they were constantly chatting because they were "women". Both counsel and I were bemused just because we strenuously attempt not to stereotype and here was a lady stereotyping herself and her best friend. However, what that small anecdote does establish is that this was a very congenial supportive environment, one which is rarely encountered in the open labour market.
The plaintiff left that work because it lost that congenial atmosphere. As Ms Smith explained to me, there was a fallout between Antonio and Camilla, they separated acrimoniously, leaving Camilla to take Antonio's place. But Camilla, although she initially attended almost full time to run her business, later reduced the number of days in which she attended at the warehouse and the number of hours at which she attended the warehouse, and eventually there arose disputes between Camilla and Ms Smith and a less than cordial relationship between those two ladies and a less than cordial atmosphere arose between Camilla and the plaintiff. The plaintiff gave evidence to the effect that she was working her heart out but she did not feel that her work was being valued by her employer, and the way she was being treated by Camilla reminded her very much of how she had been treated in her last year or more in the NSW Police, feeling undervalued and unwanted, and that led her to give notice.
Exhibit CC, the plaintiff's financial records from Olive Green Organics for the financial year ending 30 June 2014 show the plaintiff's last payment of wages as being on 14 March 2014. However, her last payment of wages prior to that time was for the fortnight ending 14 February 2014 and therefore it is likely, as submitted by Mr O'Rourke for the plaintiff, that the plaintiff last physically worked for Olive Green Organics on 21 February 2014. Whilst the plaintiff was working out her notice, Ms Smith also "threw in the towel" because of constant disagreements with Camilla and she only gave a more limited period of notice and the plaintiff then abbreviated her period of notice to finish up at the same time as her friend, Ms Smith. As to the circumstance of the plaintiff's stopping work with Olive Green Organics, much greater detail was given by Ms Smith than by the plaintiff herself, but that makes the plaintiff's evidence about the circumstances of her stopping work much more intelligible, and indicates the extent of the stress placed upon her towards the end of her employment because of the behaviour of Camilla. The plaintiff's evidence in that regard is more than adequately supported by the evidence of Ms Smith.
Since that time, the plaintiff has not had any paid employment. She has done some work for relations and friends of a voluntary nature. In mid 2014, she did some work for a cousin who had a dry cleaning business in Camden. That business had agencies within a 50 kilometre radius of Camden. The plaintiff drove a vehicle to deliver clothing which had been dry cleaned from the dry cleaners to the agencies and collected from the agencies garments that had been bailed to the agencies to be dry cleaned and took them to the dry cleaning business. The plaintiff told me that she did that on five or six occasions over a period of five or six months. In other words, it happened about once a month over a period of some six months. When the plaintiff did that work, she worked from 7am to "lunch time". One might infer that she spent five or six hours working on each of the occasions when she did this work to help out her cousin in her dry cleaning business.
Commencing in 2015, the plaintiff assisted in a takeaway seafood business in Camden known as "Seagulls on Argyle". That business is in the main street of Camden almost opposite the courthouse. She would visit her friends who operate that business, and if something needed to be done, she would do it. She was remunerated for her assistance in kind, in particular, by the provision of cups of coffee.
The hearing of this matter was due to commence on Monday 10 April. It did commence very late on that day and, although the estimate was two days, the evidence and addresses took all of Tuesday the 11th to Thursday 13 April. Since then followed the four day break over the Easter holiday period and the two days following that occupied by the District Court's Annual Conference, so that this is the first sitting day after the last day of hearing. I only mention those facts because, on the Sunday prior to 10 April, the plaintiff did work in essence driving a truck from Melbourne to Sydney. She was required to leave her home at 4.30am. She left Sydney Airport at 7am to fly to Melbourne. When she arrived in Melbourne, she was picked up and driven to where the truck was that she was required to drive, and she then drove the truck from Melbourne to Smeaton Grange at Narellan. She left Melbourne at approximately 10am and arrived in Sydney at 7.30pm. She managed to return to her home at 7.45pm. At the time that she gave evidence, the plaintiff had not been paid for the job but she expected to receive about $400. The time spent driving the truck was nine and a half hours. If that should be seen as the period in which the plaintiff was working, she would be remunerated at the rate of $42 per hour, but if the whole of the period absent from home was to be taken as working time, then she is being remunerated at the rate of $26 per hour.
The plaintiff's evidence makes it clear to me that she found this job taxing and stressful and not one that she would willingly again undertake, and I accept that she did find the job extremely demanding and taxing and is hardly likely to be a job that she could regularly do. She had been preparing herself to see if she could work as a truck driver. She had obtained her truck driver's licence and this was the fourth occasion on which she had been offered such a job and accepted this one, but her experience does not appear to have been a particularly happy one.

[10]

Medical Evidence Concerning Physical Infirmities

Dr James Scougall is an orthopaedic surgeon. He was qualified by the plaintiff's solicitors and examined the plaintiff on 4 April 2011. At the foot of p 6 and top of p 7 of his report, Dr Scougall said this: "1. I believe she is not capable currently of discharging full operational duties as a Police officer. This is apparent from the history that I obtained of injuries in my field, my findings on physical examination and my viewing and interpretation of the special investigations. 2. The medical conditions that she has are: - Chronic soft tissue injuries to her neck, her thoracic spine and her lumbar spine and to her right knee. 3. Each of her medical conditions referred to in my answer to question 2 caused her infirmity. Each of those injuries would place her at an unacceptable disadvantage in confrontational activities with offenders, in restraining prisoners and doing physically demanding work requiring bending, lifting and working in the bent position and in running and negotiating obstacles which is required in foot pursuits."
Dr James Vote, also an orthopaedic surgeon, was qualified by the defendant to advise about the plaintiff's application for medical discharge. On p 3 of his report of 11 November 2011, Dr Vote expressed the view that her orthopaedic complaints were "minimal" and of those complaints, the most troublesome was the lumbar spondylosis. He went on to say this: "Overall, I would think that she is not capable of fully performing the functions of a police officer. The only area where, outside of psychological problems, that she would have difficulty with is confrontational issues and those are in relation to her back which she appears to have had trouble on[sic] the spine since approximately 1995. This would cause her difficulty in terms of physical activities which are part and parcel of normal police service."
For the purposes of the plaintiff's application for an increased pension benefit, the defendant qualified Dr Andrew Keller, an occupational physician. Dr Keller thought the plaintiff was physically fit to work full time but was restricted "from running, jumping, defensive tactics and wrestling".
The weight of the orthopaedic evidence is that the plaintiff could not work as a police officer or in any role akin to that of a police officer, such as an officer in Corrective Services or the provider of physical security at sporting or entertainment venues or other crowd control situations and that she is probably also prevented from doing heavy lifting, repeated bending and working in a bent position or in confined spaces. That would prevent her from doing many forms of heavy labouring, but there are very few ladies who perform such physical tasks, albeit that there are some. For example, the plaintiff's neck and back problems and problem with the right knee did not prevent her from performing picking and packing work at a warehouse such as she did for Olive Green Organics.

[11]

Medical Evidence Concerning Psychiatric Infirmity

I turn now to the plaintiff's incapacity for work resulting from her psychiatric/psychological infirmity. Ms Farrugia, in her report of 4 June 2015, said this: "I believe that Ms Mackie is ill equipped to manage employment that is characterised by Key Performance Indicators, personal judgments, work that requires sustained concentration and efficient short term memory and work that is predominantly 'desk based', as it were." One can see, if one accepts that opinion, which I have no hesitation in accepting, that the plaintiff could hardly work as a senior sergeant of police performing the work that she used to perform in the Simulated Operations Unit or in the Information Training Unit of the NSW Police and, indeed, probably any either plainclothes or detective type work as a senior sergeant of police. Furthermore, Ms Mackie's opinion would prevent the plaintiff doing the very type of work one would expect of a person in the plaintiff's position who voluntarily left the NSW Police Force with the skills that she has acquired over the years and entered into the open labour market.
In his report of 2 June 2015, Dr Selwyn Smith said a number of things. On p 4 in par 5 the doctor said this: "Ms Mackie is in my opinion unable to engage in activities of a police nature. She would also have significant difficulties working with others. She is most fearful of experiencing further untoward events." On the following page of his report, Dr Selwyn Smith said this: "9. The only work that Ms Mackie can undertake in my opinion would be related to the repair of motorcycles. She may be able to work in a very isolated manner. She may be able to work for one or two days per week, given the extent of her psychiatric infirmity. 10. Ms Mackie is capable of working only on a part time basis. She would not have the capacity to work in a full time basis. I would anticipate that she may be able to work for up to 20 hours per week."
I have a number of difficulties in accepting the evidence of Dr Smith. At the top of p 3 of the report to which I have just referred, he said this: "It was my opinion following my initial examination that Ms Mackie had, in response to her adverse work related experiences, developed diagnostic criteria for a Major Depressive Disorder." That is untrue. Dr Smith, in his report of 2 June 2015 to which I have earlier referred, diagnosed an adjustment disorder with depressed and anxious mood. He did not ab initio diagnose a major depressive disorder. The doctor appears to have changed his diagnosis because of the nature of the infirmity certified by PSAC. Furthermore, at the foot of page 3 of the report of 2 June 2015, the doctor provides a heading for what subsequently appears on the following pages, "APPLICATION TO INCREASE MS MACKIE'S PENSION" which is hardly the type of heading appropriate for a medical practitioner's report. Dr Smith has provided another report which bears date 3 February 2017. It is the type of document that I would generally expect to be handed up by a legal practitioner as a form of outline of argument or written submission. The first heading in the body of the report is "Relevant Background Issues" which essentially states the nature of the issue joined in these proceedings between the plaintiff and the defendant. It also contains some second-hand hearsay. It also then sets out a number of assumptions that were provided to him. It provides a minimal updated clinical history and mental state examination. It then provides a comment on a number of opinions of medical practitioners. It then provides a "psychiatric opinion". He accepts the psychiatric disability accepted by PSAC. The rest of the document reads as the expression of an advocate. However, towards the foot of p 10, the doctor sets out his acceptance of the opinion of Dr Ingram that the plaintiff would be only capable of working part time for up to 20 hours per week. I am happy to accept that agreement with Dr Ingram as Dr Smith's assessment based on his seeing the plaintiff since 2010.
Dr Ingram first saw the plaintiff on 19 November 2015. Dr Ingram, like many of the practitioners involved in these proceedings, has answered a number of questions posed to him by those who have qualified him. On p 11 of his report, he believed that the plaintiff's symptoms of a depressive disorder gave rise to impairments in concentration, motivation and energy. That indeed is consistent with what the plaintiff told me. The doctor then said this: "When she is not busy and engaged in social activities, she is more depressed and ruminates and gets anxious. She is sensitive to interpersonal slants and misimpairs her ability to work in close relationships with people in the workplace. These symptoms would lead to difficulties maintaining and forming relationships in the workplace and impair her ability to perform complex tasks and sustain attention that may be required in the work environment." A prime example of that opinion is the fact that the plaintiff could work in close association with her best friend, Ms Smith, but then when the relationship was strained by the interaction of Ms Smith and Camilla and by the interaction of the plaintiff herself with Camilla, her ability to carry out the work ceased. I accepted that opinion of Dr Ingram. At the foot of p 11 of his report, Dr Ingram pointed out the plaintiff was fit to work part time. On p 12, the doctor said that he thought that she could work 20 hours per week and for no more than four hours a day. He said this: "Given Ms Mackie's lack of qualifications and the HOD condition, she would be capable of working part time in occupations that require low skills and low stress and limited contact with the general public. Possible occupations that may be suitable would be administrative work, clerical work. She also could work as a delivery driver or working in other environments with limited contact with the general public, such as landscaping." When bearing in mind Dr Ingram's opinion about the plaintiff's ability to do clerical work, one must bear in mind the restrictions placed upon the plaintiff by Ms Farrugia which I have already quoted. It appears to me highly unlikely that the plaintiff would be able to perform clerical work of a full time nature and probably also of a part time nature, bearing in mind that it requires concentration and generally also requires interaction with other people in the workplace.
Dr Ingram believed the plaintiff had, by doing the work she did for Olive Green Organics, demonstrated a motivation to return to work. He also thought that had the plaintiff not been injured outside the police force, she could work in private investigations, in security and surveillance, and she could also work in the hospitality industry or in customer service or she could do factory work. On p 14, Dr Ingram himself summarised his view of the plaintiff's ability to work as being fit to work part time "in a low stress environment".
Dr Ingram re-examined the plaintiff on 8 December 2016. His opinion was unchanged since his earlier assessment in November 2015. Under the heading "Employability" on p 6 of his report, Dr Ingram said this: "Ms Mackie reported that she thought about getting a job. She reported that she would have to do something like driving or delivery work, where she was her own boss. She reported that she couldn't go into a male dominated area, and she would be worried about getting hassled. She reported that she's always wanted to get a truck licence, and even though it is male dominated, she would just be in a cab on her own for most of the time." The plaintiff's experience on 9 April last indicate to me she is not fit to concentrate for the prolonged periods of time involved in truck driving. However, she would not be precluded from doing delivery work, work such as a courier, or driving a light van in suburbs when she would not have to interact with members of the public to any great extent.
The plaintiff's general practitioner Dr Whitton has provided a report bearing date 13 March 2017. In the final part of that report, it says this: "She is fearful of ongoing bullying in the workplace, which she states was present, and endured by her, for 18 months prior to discharge, and she is anxious about its impact, and her reaction if it does indeed recur again. On the open labour market, the patient feels she is capable of any duties as long as a change of posture from standing to sitting, and vice versa, is allowed, included getting up, walking and stretching, heavy lifting and repetitive twisting would not be possible. Duties should be sedentary with low psychological stress. Call centre duties would be considered too stressful. Public contact should be minimised. Her capabilities versus duties for which she is trained needs to be considered. Prolonged walking would not be possible. Specific restrictions would be - (a) Lifting/carrying less than 20 kilograms. (b) Sitting tolerance 15 20 minutes. (c) Bending/twisting ability is minimal. (d) Driving tolerance 60 90 minutes, manual car driving would be not possible. (e) Walking restriction of 40 minutes. (f) Running - minimal. (g) Kneeling - minimal. (h) Resting restriction - nil."
On 18 January 2016, the plaintiff was "assessed" by Professor James Bright, a vocational psychologist. Professor Bright lectures at the Australian Catholic University School of Education. The material from Dr Bright comprises three reports. The first is headed "Executive Summary" and bears date on the first page 27 January 2016 and comprises four pages. There was then another report headed "Employment Potential Report" bearing on p 11 the date of 27 January 2016 and comprising 11 pages. The third part of the material from him is a report headed "Job Match Report" which has pages numbered 12 to 17 and bears on its first page the date 19 January 2016. At the foot of p 2 of the Executive Summary, Professor Bright said this: "Ms Mackie is capable of working initially 20 hours per week part time. If Ms Mackie finds work that is diverting and meaningful to her, work that is away from the general public and does not involve undue conflict or male dominated cultures, it may be possible that Ms Mackie could build up over time to full time hours. However, ultimately clinical opinion is required on that point. In his report [of] the 19.11.2015, Dr Lee Ingram, psychiatrist, concluded that Ms Mackie is 'capable of working part time up to 20 hours per week'. Dr Andrew Keller, occupational physician, in his report of 24.11.2015, concluded, 'Ms Mackie is physically fit to work full time.' I agree with the conclusions of both doctors, Ingram and Keller, in that regard." Clearly Professor Bright means that physically the plaintiff could work full time, but given her psychiatric condition, could only work for up to 20 hours per week.
The medical evidence persuades me that the plaintiff's level of incapacity in the open labour market has been the same since the time of her medical discharge. There has in essence been no amelioration of it nor has there been any deterioration of it. Mr O'Rourke, on behalf of the plaintiff, has submitted that there have been two levels of incapacity, one between 16 March 2012 and 21 February 2014, and another since that time. I am not persuaded of that. There has been the one level of incapacity ever since the plaintiff was medically discharged.

[12]

What Work Could Plaintiff Do Outside the Police Force Uninjured?

The first question is: What could the plaintiff do outside the New South Wales Police Force uninjured? On p 16 of that part of his reports headed "Job Match Report", Professor Bright sets out employment options that would have been available to the plaintiff should she have left the police service without any infirmities. He provides a number of jobs and the gross weekly wage for persons holding those positions. They are these: ICT trainer $1,803 Security advisor/consultant $2,101 Delivery driver $796 Motor vehicle parts interpreter $1,224 Courier $1,164 Fruit and vegetable packer $743 Systems analyst (with training) $2,555 Small engine mechanic (with training) $723 However, in essence, Professor Bright believed that the plaintiff was capable of working for 20 hours per week in each of those employments in any event. He sets out, for example, the work of an ICT trainer on the pages numbered 12 and 13 of the report in question. It is clear to me from the description given that that job is in essence what the plaintiff had been doing within the police force prior to ceasing work. The plaintiff could not do any such work now. Further jobs which Professor Bright thought the plaintiff could do uninjured were insurance investigator earning $1,371 gross per week and a security officer earning $1,234 gross per week, but the plaintiff does not have now the physical ability to perform that work.
Exhibit N is a copy of an online advertisement placed by the Independent Broad based Anti-corruption Commission of the State of Victoria which has provided to itself the acronym iBAC. The advertisement is for principal investigators and, after setting out the range of salary and the fact that is a full time job offered for a term of three years, provides the following commentary: "iBAC is Victoria's anti-corruption agency responsible for preventing and exposing public sector corruption and police misconduct. We do this by: • investigating corruption and police misconduct • informing the public sector, police and the community about the risks and impacts of corruption and police misconduct, and ways in which it can be prevented. The Principal Investigator is a key operational role within our investigations unit which will lead, conduct and coordinate numerous investigations simultaneously. Key to your success in this position will be your superior written and verbal communication skills, substantial investigation experience, along with your ability to coordinate resources and manage complex investigations. Formal qualifications and/or training in investigations, law enforcement or a related discipline would be an advantage." A range of salaries is provided between $109,567 and $128,095, plus an additional 10% allowance, plus superannuation. This job was discussed with the plaintiff who gave oral evidence of the type of work that she had performed in the NSW Police and it is the sort of job that one would expect that she could perform uninjured. The plaintiff said that she was prepared to move from Elderslie, in which vicinity she has lived all her life, to Melbourne to take up a job of this nature, but I have reservations about that. However, the point is that such jobs are available in this State with the ICAC and the plaintiff is capable of commanding uninjured the sort of salary that is represented by this job advertisement. If I average the range of salaries to be $120,000 per annum, add 10%, that increases the amount to $132,000 per annum which is the sum of $2,538 per week. There is evidence of what the plaintiff would have earned had she remained in the NSW Police. That is not the relevant criterion under s 10(1A)(b) but it is relevant in a way that I shall discuss after the luncheon adjournment. LUNCHEON ADJOURNMENT
As at the date of the commencement of the plaintiff's pension, the salary of a senior sergeant of police was $107,987 per annum or $2,077 per week. Those figures may be found in exhibit F. From exhibit 2, I know that the salary for a senior sergeant with five years seniority was, from 1 July 2014, $116,521 per annum or $2,241 per week. On 1 July 2015 that increased to $118,898 per annum or $2,286 per week. As at 1 July 2016 that salary increased to $121,323 per annum or $2,333 per week. That enables me to ascertain that as at January 2016, the salary of a senior sergeant of police should be taken as being about $2,300 per week. I take the date January 2016 because that is the time at which figures have been provided to me by Professor Bright in his various reports. It represents a period in time for which I have the most economic data.
The significance of the plaintiff's capacity to earn inside the police force is relevant in trying to fix the amount the plaintiff would have been capable of earning outside the police force. I had cause to discuss this at some length in Moss v SASTC (No 2) [2016] NSWDC 287. At [36] I said this: "In the open labour market it has been my experience that persons such as the plaintiff [a former detective sergeant of police] would obtain, for doing the same sort of work, a higher salary inter alia, because there is not the security involved in being a member of the NSW Police. There is not a security of being, in essence, a public servant. I would expect the plaintiff to be earning, outside the Police Force, more than $117,000 per annum in 2015." In the preceding paragraph of the judgment, I had averaged out the rate of pay of a detective sergeant of police in that plaintiff's position as being $117,000 per annum by looking at the figures for the preceding financial year and for the succeeding financial year. Mr O'Rourke, for the plaintiff, in his written submission concerning the mathematics of the present inquiry, MFI 5, increased the salary of a senior sergeant of police by 10% to allow for what he described as the "insecurity loading" relying upon what I said in Moss that I have just quoted.
Based on the economic evidence before me, I have reached the conclusion that but for the fact that she was hurt on duty, the plaintiff would have been able to earn outside the police force at all material times, that is, since her medical discharge and in particular as at January 2016, $2,400 per week.

[13]

What is Plaintiff Able to Earn Now in the Open Labour Market?

The question then becomes: What is her ability to earn injured in the open labour market? From the material provided to me in Professor Bright's various reports and bearing in mind the constraints placed upon her ability to earn by the medical evidence, it is my view that the plaintiff could work 20 hours per week as a fruit and vegetable packer earning $391.05 cents per week or as a delivery driver earning $518.95 cents per week or as a courier earning $612.63 cents per week. That provides a variation between essentially $400 and just over $600.
When she was working for Olive Green Organics, the plaintiff's actual earnings between 14 September 2012 and 20 June 2013 was $642.95 per week and from 21 June 2013 until 21 February 2014 $613.60 per week. However, it ought be clear from what I have said that those earnings are inflated because they do not take into account the time that the plaintiff spent absent from her work seeking to deal with the effects of her symptoms, the occasions that I described as "time out" from her work activities. Most employers would deduct, from the actual wages payable, the wages that would be referable to time that was not actually worked doing the job that the plaintiff was required to do. It was only through the good grace of her friend, Ms Smith, that the plaintiff could earn those levels of salary. In other words, they do not accurately reflect the plaintiff's real ability to earn outside the police force.
Doing the best I can and based upon the economic material available to me, I would value the plaintiff's ability to earn injured as at January 2016 as being $600 per week. That indicates that the plaintiff's earning capacity has been reduced by 75%. 75% of 12.25% is 9.1875% which I round up to 9.19%. The basic 72.75% plus 9.19% gives a total of 81.94% and that is in my view what the plaintiff's additional entitlement under s 10(1A)(b) of the Act is.
It ought be clear from my finding of $600 per week that the plaintiff, for example, if she obtained work as a courier, might only work for some part of a financial year and at other times she might be forced to work as a delivery driver. Work as a courier or delivery driver is often self-employment and there is no guarantee that in self-employment the plaintiff could actually obtain work for 20 hours per week.
I am cognisant of the fact that the plaintiff, when she was working for Olive Green Organics, was only working for four days per week which suited her other commitments of a personal nature and her other interests. However, she was in fact working for Olive Green Organics theoretically 32 hours per week, which the weight of the medical evidence suggests she cannot work. It is perhaps an indication of the congenial environment in which the plaintiff was working for Olive Green Organics that she could get a salary equivalent to 32 hours per week whilst she was doing that work. However, when one looks at the hourly rate that the plaintiff was earning, it appeared to have been $21 per hour initially and increasing to $23 per hour during the fortnight ending 28 February 2013 so theoretically from 14 February 2013. Accepting that the plaintiff could only work 20 hours per week and earn $23 per hour as at 21 February 2014, her salary ought to have been $460 per week.
Mr Ower, who appeared for the defendant, obtained a concession from the plaintiff that theoretically she could have worked five days per week for Olive Green Organics until problems arose towards the end because of the management of Camilla. However, I have to bear in mind not only what the plaintiff said but also what all the medical evidence suggests that she only ought work 20 hours per week, and indeed working eight hours per day for four days a week exceeds what the doctors recommend. Therefore, in my view, the plaintiff ought not be seen as being able to earn wages for eight hours per day for five days per week. If she had tried to work for five days per week consistently, the evidence to me strongly suggests that the plaintiff would have had an increase in her symptoms or rapidly come to the view that she could not continue to work such relatively long hours, given the extent of her incapacity. Working four days per week, having a three day long weekend made life more enjoyable for the plaintiff by allowing her to pursue activities which made her feel good and therefore help overcome her psychiatric symptoms. In other words, part of the congenial environment of Olive Green Organics was the fact that she only had to work four days per week.

[14]

Commencement of Pension Increase

The remaining question is: When should the pension increase commence? The defendant pointed out that the plaintiff delayed between receiving the defendant's letter dated 10 April 2012 until submitting her application for an increased pension benefit through her solicitors on 25 August 2015. The plaintiff herself told me that she did not initially make a claim for an increased pension benefit because she thought she ought try herself out or seek to provide information which would answer some of the questions raised by the defendant in its letter of 10 April 2012. Her trial was doing work for Olive Green Organics commencing 14 September 2012.
She resigned that employment in late January or early February 2014 but then made no real attempt to make the application for the increased pension benefit. There was, however, some activity in the interim. For example, on 10 November 2014 the plaintiff sent an email to the Police Association containing this message: "Can someone please contact me about an increase to my pre 88 pension?" That drew a response from the Police Association thanking her for her inquiry and attaching a copy of the Police Association's legal financial assistance scheme which might help her in her application. There is a formal letter which was part of the email transmission from the Police Association to the plaintiff dated 10 November 2014. It advised the plaintiff what she should do. Inter alia it gave her some information which had not been provided to her by the defendant. The letter contains this information: "On 30 June 2006, amendments were made to the Police Regulation (Superannuation) Act 1906, which imposed Time and Age limits on members applying for pension increases. These amendments to the legislation state that the pension increases are generally not payable unless the application is made before the member reaches 60 years of age, or not later than (5) years after the member resigns or retires, whichever is later. There is, however, provision within 16A of the Act to allow for consideration of an out of time application in specified circumstances. Members should also be aware that a decision in the Court of Appeal (SASTC v Patterson [2010] NSWCA 167) held that there is no time limit for making a pension increase application for members who had an entitlement prior to 30 June 2006. However, it is in your best interest to adhere to the time/age limits stipulated above, wherever possible." The letter went on to encourage the plaintiff to access the defendant's website which contains information for those entitled to pensions under the Act. However, it appears that the plaintiff did not do anything immediately following upon that information being conveyed to her.
On 3 May 2015, the plaintiff sent another email to the Police Association saying that she wished to apply for an increase in her pension benefit. She provided some minimal information to assist the Police Association. On 4 May, the Police Association wrote to the plaintiff accepting what she had asked for as a request for legal assistance and pointing out that the Police Association had referred the matter to Messrs Walter Madden Jenkins, those who currently represent her. That led to the completion of the application form by the plaintiff on 19 August 2015 which was forwarded by her solicitors to the defendant on 25 August 2015 and received on 31 August 2015.
When cross examined, the plaintiff has acknowledged that she delayed and herself used the word "procrastination" repeatedly. The thing that strikes me about the plaintiff's police career is that it does not demonstrate a lady who was prone to procrastination. I find it impossible to accept that a lady given to procrastination could advance as far in the police hierarchy as the current plaintiff did. I cannot accept that a lady who was prone to procrastinate could achieve the qualification of a detective. I cannot accept that a person who was prone to procrastination would be doing the sort of work the plaintiff was doing at the end of her career in the Police Force. It is quite inconsistent.
However, what does explain procrastination are a number of the symptoms which the plaintiff suffers as a result of her certified psychiatric infirmity. In his report of 18 June 2011 (exhibit Y), Dr Peter Anderson refers at the top of p 3 to a "loss of concentration". On the following page, there is reference to the plaintiff's having become withdrawn from her usual activities. At the foot of the page, he said this: "She does not like being asked about her police career. She tends to avoid the topic because questions about this give rise to recollections of previous jobs, with accompanying emotions. Various places trigger these recollections too. She cannot always avoid them. Examples are the scenes of fatal accidents. She reacts with anxiety." On p 6 of the report, Dr Anderson records this: "Her concentration and memory is [sic] impaired. She can read one or two pages, but not a book. She sticks to the magazines and newspapers. She is not able to watch a movie unless she is unusually 'grabbed' by it in the first ten minutes. She plays simple games on the computer. Difficulties with concentration and memory were apparent to her when she was on the job. She would write lists and have difficulty prioritizing." I take the latter two sentences of that part of the history to refer to the last 18 months or year of the plaintiff's active police career. On p 7, the Doctor commenced a part of his report with the heading "Presentation and Findings". At the top of p 8 of the report, he referred to the plaintiff's seeing herself "as in limbo at this stage and she was not thinking much about the future".
In her report of 18 November 2011, Dr Abeya refers to a lack of motivation as one of the plaintiff's symptoms, on p 2 and on p 3 of her report. On those pages are also mentioned a lack of interest and of not feeling like doing anything at all when she felt "down".
Ms Farrugia, in her report of 4 June 2015, commencing at the foot of p 7, said this: "Ms Mackie revealed that from 2010 to the present day, the following symptoms have consistently troubled her. Her reports indicate that they continue to do so." Then there is a list of symptoms which include:

Short term memory difficulties. She frequently forgets where she leaves things.
Persistent lethargy.
Low motivation.
Episodic inexplicable agitation and restlessness.

Dr Ingram, in his report of 19 November 2015, refers on p 4 to a low level of motivation, to low energy levels, to a problem with concentration which the plaintiff described as "shit", and at the foot of p 4 Dr Ingram said this: "She reported that she does ruminate about things that happened in the police force and can be quite sensitive to innocent comments. She reported that her friend recently said something to her that reminded her of things that had happened at work and she found it quite dismissive and distressing. She reported some issues with irritability. She reported some anxiety symptoms. She reported that she gets anxious in crowds, although tolerates things. She reported that she gets anxiety related to her ruminations about past events in the police force."
Applying for an increase in her pension entitlement would automatically turn the plaintiff's mind to having been a member of the New South Wales Police and all that involved which led to the symptoms which she now has. One can accept that merely turning her mind to making the application for the increased pension benefit would be distressing to her and that therefore she would avoid it. That, combined with a loss of ability to concentrate, to apply herself, low energy levels, and a lack of motivation generally, would all disinhibit the plaintiff from pursuing the obvious course of seeking to increase her pension entitlement.
I have reached the view on the evidence before me that it is the plaintiff's symptom complex which caused her to procrastinate, to use her words, that the reason for the delay was not a deliberate procrastination on the plaintiff's part or some reckless delay on her part, but rather was because her symptoms complex itself inhibited her making the application. Where the certified infirmity is a substantial reason for what might otherwise thought to be delay in making an application for the pension entitlement, then such delay can in my view be excused. I have come to the view that the plaintiff's pension increase should be dated back to the time of the grant of the pension.
I should also point out that if the plaintiff had made an application immediately following her medical discharge to increase her pension, there was evidence available that she was unfit for any form of work at that time. The evidence to which I am referring is part of the history recorded by Dr Abeya at the foot of p 4 of her report of 18 November 2011 (exhibit 4) which was tendered in the defendant's case. The history is this: "Ms Mackie does not feel she is currently in the state of mind to be employed successfully and certainly does not feel she can go back to her previous work environment. She does look forward to being employed in some manner in the future but feels she first needs to recover from her current illness." Clearly the plaintiff has not recovered from her illness but has made strides to find employment.
The question of backdating is a vexed one. A reference was made in argument to my decision in Daley v SASTC [2015] NSWDC 183; (2015) 20 DCLR(NSW) 362, the decision of the Court of Appeal in the same matter, Daley v SASTC [2016] NSWCA 111, and then to my subsequent decision of Daley v SASTC (No 2) [2016] NSWDC 285. That case, like this, was argued by Mr O'Rourke for the plaintiff and Mr Ower for the defendant. In that case, I said this: "19. Delay in seeking the increased pension benefit appears to me, despite what was said by learned counsel for the plaintiff yesterday, a relevant consideration. That appears to have been accepted by Basten JA in [90] and also in [133]. It appears also to have been a relevant consideration by Ward JA at [139]. It was not said by McColl JA that it was an irrelevant consideration. In my earlier reasons, I quoted from the decision of Truss DCJ in Pinkerton v SAS Trustee Corporation (10 August 2007, RJ00319/06, unreported). Her Honour held at [21] of her reasons that the Act and related subsidiary legislation did not mandate that the additional allowance be backdated to the date of discharge - in other words, the Court has a discretion whether to backdate the pension benefit or not, and a relevant consideration was delay. It was not suggested in the Court of Appeal in the current matter that her Honour's decision was wrong. In fact, it was not even adverted to. If her Honour's decision had been wrong, then there would have been an error of law and it would not have been necessary to go to the question of jurisdictional error. 20. For centuries, the Courts have looked unfavourably on delay. There can be found in Sir Edward Coke, Institutes of the Laws of England, the following maxim: "Vigilantibus, non dormientibus, iura subveniunt." Sir Edward Coke was the Lord Chief Justice of the Court of King's Bench. He was a common lawyer. The maxim is now preserved in equity. The seventh maxim of equity is that delay defeats equities or the alternative maxim, relying upon the dictum I have just quoted, is that equity aids the vigilant and not the indolent. The Latin plural noun iura is to be contrasted with the Latin plural leges. The latter is apt to describe the written law. The former is apt to describe legal principals deriving from the common law and equity. In equity, delay sufficient to defeat an equity is called laches, but there can be no suggestion that delay in the current case could defeat any entitlement the plaintiff had to backdating. Delay is merely a consideration and not some form defence." I still believe that delay is relevant. On this occasion, Mr O'Rourke propounded an argument which, if correct, would make much of the decided case law irrelevant. He referred to Swift v SASTC [2010] NSWCA 182 which concerned an earlier version of s 9A of the Act. The version dealt with in the Court of Appeal in that case contained the following subs (4): "Where an annual superannuation allowance is granted under s 10 to a former member of the police force who resigned or retired, the allowance is payable as from the date determined by STC for that purpose." The version of subs (4) relevant to the current case is this: "An annual superannuation allowance granted under s 10 to a former member of the police force who resigned or retired is, subject to this Act, payable as from: (a) the date the former member lodged the application for the allowance that was determined by STC certifying the matters referred to in s 10B(2)(b), or (b) such earlier date as STC may determine if STC is satisfied that there are exceptional circumstances that merit STC doing so." Also relevant in this case are the provisions of s 10(1BA). It is in the following terms: "A superannuation allowance referred to in subsection (1A) or an additional amount of a superannuation allowance referred to in subsesction (1D) is not payable to a disabled member of the police force unless an application for payment of the allowance or additional amount concerned is made: (a) before the member reaches the age of 60 years, or (b) not later than 5 years after the member resigns or retires, whichever is the later." Here, the plaintiff's entitlement under s 10(1A)(b) was governed by s 10(1BA)(a) and the plaintiff clearly applied prior to reaching the age of 60 years for the increase in her pension benefit.

[18]

Legislative Context 6. In the context of the present proceedings, s.10 PRS Act, "Superannuation Allowance where Member hurt on duty", relevantly provides: "(1) In this section: 'attributed salary of office' means: (a) in relation to a member of the police force who is discharged - the member's attributed salary of office as at the date of the member's discharge, or (b) … 'disabled member of the police force' means: (a) a member of the police force who is discharged after being certified, pursuant to section 10B(1), to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990, or (b) … that infirmity being determined, pursuant to section 10B(3) or on appeal, to have been caused by the member being hurt on duty … when he or she was a member of the police force… 'retired' includes discharged as referred to in section 7 or 15. (1A) Subject to this section, the annual superannuation allowance for a disabled member of the police force is: (a) an amount that is equal to 72.75 per cent of the member's attributed salary of office, (b) except where paragraph (c) applies, an additional amount that is: (i) not more than 12.25 per cent of the member's attributed salary of office, and (ii) commensurate, in the opinion of STC, with the member's incapacity for work outside the police force, and (c) if the disabled member is totally incapacitated for work outside the police force and, in the opinion of STC, the member was hurt on duty because the member was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment, an additional amount that is: (i) not less than 12.25 per cent and not more than 27.25 per cent of the member's attributed salary of office, and (ii) commensurate, in the opinion of STC, with the risks to which the member was so required to be exposed, multiplied by the equivalent service ratio of the member as at the date of the member's discharge, resignation or retirement. (1AA) … (1B) … (1BA) A superannuation allowance referred to in subsection (1A) or an additional amount of a superannuation allowance referred to in subsection (1D) is not payable to a disabled member of the police force unless an application for payment of the allowance or additional amount concerned is made: (a) before the member reaches the age of 60 years, or (b) not later than 5 years after the member resigns or retires, whichever is the later. (1C) … (1D) 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. (2) … (3) … (4)-(7) (Repealed)" (emphasis added)

[23]

The Defendant's Position 38. The Plaintiff understands that the Defendant will assert that because the Plaintiff did not make application for an "additional amount" within 12 months of the date of the Plaintiff's medical discharge, the discretion as to the date of commencement of the payment of the "additional amount" has been properly exercised by determining the commencement date as being 31 August 2014, being "the date determined by the Committee": Defendant's letter 29 February 2016. This appears to be a date 12 months before the Defendant received the application for an "additional amount". 39. It is understood that the Defendant will assert the Plaintiff has "delayed" in bringing her application. It is understood that the Defendant will assert not only that this is relevant to the exercise of the discretion in s.10(1D) PRS Act but determinative against the Plaintiff being entitled to an earlier commencement date than that determined by the Defendant. 40. It is the Plaintiff's case that she has not "delayed". 41. It is the Plaintiff's case that "delay" is not relevant. 42. The Plaintiff has complied with s.10(1BA) PRS Act. 43. To the extent that the Defendant may rely upon the decisions of Switft v SAS Trustee Corporation [2010] NSWCA 182 or SAS Trustee Corporation v Cox [2011] NSWCA 408, it is submitted that they have no relevance to the proper application of s.10(1D) PRS Act: 1. Swift concerned a former police officer who resigned from the New South Wales Police Force. Cox concerned a police officer who has been medically discharged (not hurt on duty) from the New South Wales Police Force. 2. In both cases, the former police officer pursued a superannuation allowance in terms of s.10 PRS Act many years after leaving the Police Force. 3. Both cases involved a question of the proper application of the provisions of s9A(4) PRS Act as that section read before 30 June 2006. Neither that version of s.9A(4) or the current version ever applied to the Plaintiff's situation. 4. Section 10(1D) is concerned with a completely different aspect of a disabled member of the Police Force's entitlement (superannuation allowance increase) and describes a different discretion. 5. In any event, in both Swift and Cox the Court of Appeal clearly identified "delay", being relevant to s9A(4) PRS Act as one element potentially relevant to the exercise of discretion under that provision.

Mackie v SAS Trustee Corporation - [2017] NSWDC 232 - NSWDC 2017 case summary — Zoe

Mackie v SAS Trustee Corporation

At a glance

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Judgment (25 paragraphs)

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Cases Cited (11)