SAS Trustee Corporation v Green

The Decision of the Primary Judge 17The primary judge approached the matter by stating the two tasks before him. The first was to determine whether Ms Green was "hurt on duty because she 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". The second was to determine an amount, being not less than 12.25 percent and not more than 27.25 percent, of additional salary to which Ms Green was entitled commensurate with the risk to which she was required to be exposed. His Honour approached those tasks on the basis that the proceeding before him was a hearing de novo. 18The primary judge considered that the first question required the specification or identification of the nature of the risk involved. In particular, the degree of specificity with which the risk is characterised needed to be considered. By way of example, his Honour suggested that a constable of police who was lawfully involved in a high-speed police pursuit in a motor car and who was injured because of some obstruction on the road, a malfunction of the police vehicle, or interference from the person seeking to escape apprehension, would be exposed to a risk to which members of the general workforce would not normally be required to be exposed. On the other hand, his Honour considered that the risk of merely being involved in a motor vehicle accident was a risk to which members of the general workforce would normally be required to be exposed. Employees who drive in the course of their employment expose themselves to the risk of being involved in a motor vehicle accident. There are many members of the general workforce who are exposed to that risk. His Honour considered that it would be incorrect to place the risks to which a police constable who is involved in a dangerous high-speed pursuit is exposed in the same category as those to which a police constable who was proceeding in a car in the normal course of traffic with no sense of urgency or danger is exposed. Therefore, his Honour said, there was a need for specificity in describing the risks to which Ms Green was exposed. 19The primary judge then dealt with the contention advanced by the Trustee that there are many members of the workforce who are normally required to be exposed to the risk of falling from a horse. Professional polo players, professional jockeys, equestrian athletes, showjumpers, actors and stunt doubles, circus performers, horse trainers, drovers and cattlemen, farmers who ride horses to muster, and professional rodeo riders were all suggested as categories of such employees. His Honour accepted that there are many people who ride horses in the course of their employment and that any person who rides a horse runs the risk of falling from it, even if it is only moving at a walking pace. However, it was necessary, his Honour said, to categorise the risk correctly, that is, with the appropriate degree of specificity. 20The primary judge categorised the risk to which Ms Green was exposed when riding a horse at a gallop, in line, keeping a distance of four feet from the horse in front and riding to the left in a manoeuvre, as being the risk that the horse that she was riding might be startled or frightened or alarmed by another horse engaged in the same manoeuvre. Referring to the occupations raised by the Trustee, his Honour said that those working on the land, such as stockmen and drovers, do not usually ride their horses at a gallop and certainly do not seek to ride in close proximity to other galloping horses. He also thought it unlikely that circus performers would ride horses at a gallop in a circus ring because of the insufficiency of space and that farmers and graziers mustering would hardly do so at a gallop in a manoeuvre involving other galloping horses. 21The primary judge then dealt with jockeys, saying that: Jockeys do ride horses at a gallop and run a risk of the horse they are riding being startled or frightened by another horse, but they ride straight ahead; the only problem for the jockey being to pass a horse travelling in the same direction, that is, overtaking. For that purpose, racehorses ride with blinkers. There is no evidence before me that police horses are equipped with blinkers. Even so, the number of jockeys who ride at a gallop in horse races is particularly small and both jockey and racehorse are trained for one specific manoeuvre, that is, riding fast and passing other horses without the need for the sort of coordination required in a police musical ride [such as "Red X"]. [emphasis added] The Trustee takes exception to the comments emphasised above. The Trustee's complaint is that there was no evidence that racehorses ride with blinkers or that police horses are not equipped with blinkers. It is common ground in the appeal that the question of blinkers was not raised in the proceedings before the District Court. His Honour then went on to say that, in any event, the number of jockeys who ride at a gallop in horse races is particularly small and both jockeys and racehorses are trained for one specific manoeuvre, namely, riding fast and passing other horses without the need for the sort of co-ordination required for the Red X drill. 22Ms Green had had a long involvement with horses from her earliest years and is an accomplished equestrienne, and his Honour accepted her evidence as to the circumstances of her accident. She described the manoeuvre that she was performing on 8 June 1988 as a particularly dangerous one. She said that the danger for a mounted police officer involved in a civil disorder or riot was far less dangerous than the danger that a trooper would run in practising the Red X drill. She said that, in a civil disorder, mounted police officers ride in rank, stirrup to stirrup, behind other members of the police force who would be equipped with shields and perhaps truncheons or night sticks. No fast riding is involved in such activities and the risk of a horse shying or taking fright is lessened by the fact that the horses are side by side, preventing any one horse from jumping to one side or the other. Ms Green said that, even if offenders throw projectiles at mounted police officers, which is common enough, there is still less danger involved than in performing the Red X drill at a gallop. 23The primary judge concluded that Ms Green was running a risk to which members of the general workforce would normally not be required to be exposed in the course of their employment. His Honour considered that no difference arose from the fact that Ms Green was merely training at the time, rather than actually performing the drill, at, for example, the Sydney Royal Easter Show or some other special occasion. His Honour did not consider that the Superannuation Act differentiates between risks caused in the actual execution of duty as distinct from risks caused in training for the actual execution of duty. 24Having identified the risk to which Ms Green was required to be exposed and having concluded that it was a risk that attracted s 10(1A)(c), his Honour then proceeded to ascertain the degree of the risk in order to determine an amount that was commensurate with the risk. His Honour considered that s 10(1A)(c) required him to place the risk to which Ms Green was exposed on a spectrum of various risks to which police officers are exposed and to which members of the general workforce would normally not be exposed, in order to determine a percentage of attributed salary between 85 percent and 100 percent. His Honour said that determining where the particular risk falls on the spectrum was a question of weighing various risks. 25The primary judge considered that the highest category of risk to which members of the police force might be required to be exposed was the risk of death from gun fire, burning buildings and other emergency situations. His Honour considered that the risk of severe psychiatric illness to which police officers, who are exposed to horrific scenes well outside the kind that a member of the general workforce would experience, might be exposed was a risk that was high on the spectrum. 26The Trustee conceded that the risk to which a mounted police officer giving chase on a horse at speed would be exposed was in the mid-range of that spectrum. Ms Green contended that the risk to which she was exposed was greater than the risk to which a mounted police officer would be exposed in dealing with a civil disturbance with offenders, where the police officer might be pulled from the horse by an offender and stomped on by the horse or by offenders. The primary judge considered that the risk described by Ms Green was in the mid-range of the spectrum. Accordingly, his Honour concluded that Ms Green's pension should be increased to 92.5 percent of the attributed salary of her office.

The Grounds of Appeal 27The Trustee's notice of appeal specified 16 grounds of appeal. Seven of those grounds relate to the observation made by the primary judge that racehorses run with blinkers and the distinction thereby drawn between the risks incurred by jockeys, on the one hand, and Ms Green, on the other. It is somewhat anomalous that the Trustee's submissions in reply were considerably more voluminous than its submissions in chief. The submissions in chief do not address the 16 grounds in terms. Ms Green's written submissions categorise the grounds into three groups, being:

• errors in relation to the categorisation of the risk;
• errors in the abnormal risk finding; and
• errors in finding that the risk was mid-range. The Trustee's submissions in reply address Ms Green's submissions by reference to those categories, thereby accepting the categorisation. 28The issues in the proceedings in the District Court are determined by the language of s 10(1A) of the Superannuation Act. Relevantly, s 10(1A)(c) applies in the present case if, in the opinion of the Trustee, Ms Green was hurt on duty because she 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. In the present case, it is common ground that Ms Green was totally incapacitated for work outside the police force and that she was hurt on duty. The first question for the Trustee, and therefore for the District Court, was to form an opinion as to whether Ms Green was hurt because she was required to be exposed to certain risks. If the risks to which she was required to be exposed were risks to which members of the general workforce would normally be required to be exposed in the course of their employment, then s 10(1A)(c) would not apply. The second question for the Trustee, and therefore for the District Court, was to form an opinion as to an amount, within the boundaries specified by s 10(1A)(c)(ii), that was commensurate with the risks to which Ms Green was required to be exposed. 29The Trustee complains about the opinion formed by the primary judge in relation to both of those matters. That is to say, the Trustee says that it is aggrieved by the award of the District Court in point of law as to the opinions formed by the District Court as to:
• whether Ms Green was hurt because she was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed during the course of their employment; and
• the amount that is commensurate with the risks to which Ms Green was so required to be exposed.

Whether Ms Green was Required to be Exposed to Relevant Risks 30The Trustee accepts that the word risks, when used in s 10(1A)(c), has its ordinary meaning. The word might be taken to mean: Exposure to the chance of injury or loss; a hazard or dangerous chance (Macquarie Dictionary, 6th ed, 2013) Clearly enough, the second meaning is more appropriate in the present context, having regard to the inclusion of the word "exposed" in s 10(1A)(c). Thus, the Trustee, and then the District Court, were required to form an opinion as to whether Ms Green was hurt because she was required to be exposed to certain hazards or dangerous chances or, perhaps, certain chances of injury. The paragraph would not apply if she were only required to be exposed to hazards or dangerous chances to which members of the general workforce would normally be required to be exposed in the course of their employment. 31In relation to that question, the Trustee had some difficulty in isolating the error of the District Court in point of law by which it was aggrieved. The area of the Trustee's complaint appears to centre around the primary judge's construction of the phrase: risks to which members of the general workforce would normally be required to be exposed in the course of their employment. The Trustee's contention is that, so long as there are members of the general workforce who would normally be required to be exposed in the course of their employment to the risks to which Ms Green was required to be exposed, s 10(1A)(c) would not apply to her circumstances. Indeed, in oral submissions, counsel for the Trustee agreed that the consequence of his construction of that subsection was that the existence of only two members of the workforce who were required to be exposed to the risk to which Ms Green was exposed would remove the operation of that subsection. Thus, the Trustee emphasised the position of jockeys, as well as those in other occupations that required horse riding, who are required to be exposed to risks similar to those to which Ms Green was required to be exposed. The Trustee says that it is necessary to identify risks of injury from a particular cause. In the present case, the hazard to which Ms Green was required to be exposed was the particular equestrian drill, Red X, which the mounted police officers were undertaking on 8 June 1988. 32The Trustee contended that there was no reason to distinguish the activities of jockeys - who ride horses at the limit of their capabilities, namely, at a gallop, and whose purpose is to catch up with horses in front and, if possible, overtake them - from the activities involved in performing the Red X drill. The Trustee says that the trial judge erred by distinguishing the risks to which Ms Green was required to be exposed from risks to which members of the general workforce are required to be exposed, by reference to all aspects of the activities that Ms Green undertook, whether or not there was evidence that those aspects increased the level or nature of the risks. The Trustee says that such an approach would permit a distinction by reference to circumstances that bear no rational connection to the risks involved and would have the consequence that almost any activity undertaken by a police officer would qualify. The Trustee says that there must be some rational connection between the circumstances relied on for the purposes of the comparison and either the nature or the degree of the risk. 33The Trustee accepts that a police officer engaged in a high-speed pursuit is required to be exposed to risks attracting s 10(1A)(c) because driving at high speed through urban areas without regard for the road rules in conditions of extreme urgency are both causative of injury and directly affect or increase the risk of injury. Further, the Trustee accepts that a police officer who arrests a violent offender is required to be exposed to relevant risks because effecting an arrest of a violent person is directly causative of injury and increases the level of risk. Finally, the Trustee accepts that an officer engaged in an urgent rescue operation in rough terrain from a dangerous height is required to be exposed to relevant risks that cause injury and affect the degree of risk. 34However, the Trustee contends, jockeys are members of the general workforce and they are normally required to be exposed, in the course of their employment, to relevantly the same risks as those to which Ms Green was required to be exposed. Therefore, the Trustee says, s 10(1A)(c) does not apply. That is to say, the Trustee says that the decision-maker, be it the Trustee or the District Court, could not form the opinion that the risks to which members of the general workforce, namely, jockeys, would normally be required to be exposed in the course of their employment were not the same as the risks to which Ms Green was required to be exposed. 35It may be significant that, in the course of oral argument, counsel for the Trustee described the risks that would attract the application of s 10(1A)(c) as "abnormal". In the same vein, the Minister for Industrial Relations, in his speech on the second reading of the Bill for the amendment to the Superannuation Act that introduced s 10(1A), indicated that the provision was intended to apply where an injury that resulted in total incapacity was received in circumstances that exposed the police officer to "exceptional risks" (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 16 October 1979 at 1844). In the Explanatory Note relating to the Bill as introduced into Parliament, it was stated that one of the objects of the amendments was to increase the annual superannuation allowance payable to a disabled member of the police force to a maximum of 100 percent of salary of office where the disabled member was "exposed to certain exceptional risks". 36The task at hand, of course, is to construe the language of s 10(1A)(c), in the context in which it is found in the Superannuation Act. Nevertheless, if the risks in question are properly to be characterised as "abnormal" or "exceptional", it is not difficult to characterise the risks to which Ms Green was required to be exposed as being abnormal or exceptional, when compared with the risks to which members of the general workforce are normally required to be exposed in the course of their employment. 37It is not the function of this Court to postulate a meaning for the language used in the relevant provision such as will provide an answer in all circumstances that might give rise in the future to a claim that s 10(1A)(c) applies. The question for the Court is whether the primary judge erred in point of law in concluding that the risks to which Ms Green was required to be exposed were risks to which members of the general workforce would normally be required to be exposed in the course of their employment. 38Clearly enough, it would be almost impossible to identify risks to which all members of the general workforce would normally be required to be exposed in the course of their employment. The use of terms such as general and normally have significant work to do. Similarly, the absence of an adjective to describe members such as any or all, coupled with the use of "members" in the plural, rather than the singular, indicates that members is not to be given a restricted meaning. The use of the word normally indicates that not all risks are intended to be covered by the language of the provision: risks to which such members are required to be exposed only very rarely, for example, would not be covered. In addition, the subsection refers to members of the general workforce who are normally required to be exposed to the relevant risks. The use of the word general indicates that it is not a particular part of the workforce or a particular workforce that is contemplated. On the other hand, there will no doubt be particular members of the workforce, insofar as the term workforce includes all those who work, who would be required to be exposed to particular risks that are relevant. 39Counsel for the Trustee sought to read the word "any" before the word "members", in order to support a submission that only truly unique risks attract the subsection. That is to say, if it can be shown that one or two members of the workforce are normally required to be exposed to risks to which a claimant under s 10(1A)(c) was required to be exposed, then the subsection does not apply. That submission was later clarified to refer to one or two occupations within the general workforce. Either way, such a construction does not reflect the legislative intention. The words "members of the general workforce" should be read as a phrase, requiring the decision-maker to compare the risks incurred by the claimant and the risks incurred by the broad generality of workers. Quantitative considerations must have some bearing on that comparison. 40As a matter of ordinary common sense, the risks to which jockeys or stuntmen or professional polo players are required to be exposed are not risks to which members of the general workforce would normally be required to be exposed to during the course of their employment. Risks to which mounted police officers engaged in equestrian drills such as Red X are required to be exposed are also not risks to which members of the general workforce would normally be required to be exposed in the course of their employment. 41The trial judge categorised the risk to which Ms Green was required to be exposed as riding a horse at a gallop in line, keeping a distance of four feet from the horse in front, and, in a manoeuvre, riding to the left, and running the risk that the horse she was riding might be startled or frightened or alarmed by another horse engaged in the same manoeuvre. That was based on Ms Green's description of the manoeuvre. She said that one of the horses in the section that was turning to the right leapt sideways. That caused her horse to take fright and take a "great big leap" to the side opposite to that which the horse turning right had taken, being a great big leap to her left. That caused her to lose her seat on her horse, fall to her right-hand side and land on her shoulder and neck. 42The Trustee complained about that categorisation, on the basis that keeping a distance of four feet from the horse in front and riding to the left were not shown to have any causal connection with the injury suffered by Ms Green. On the other hand, the Trustee appears to accept that riding a horse at a gallop in line and the horse being startled or frightened or alarmed by another horse engaged in the same manoeuvre did have a causal connection. That distinction misses the point. The trial judge was doing no more than describing the manoeuvre in which Ms Green was engaged. Whether or not the horse she was riding was required to be four feet or some other similar distance from the horse in front and the horse behind, she was required to be galloping in close formation with other horses and moving to one side in circumstances where other horses were moving to the other side. The risks to which Ms Green was required to be exposed were the hazards of one galloping horse being startled by another galloping horse in close proximity. Those risks are not risks to which members of the general workforce would normally be required to be exposed in the course of their employment. The fact that some members of the workforce may normally be required to be exposed to such risks in the course of their employment is not to the point. 43A considerable part of the Trustee's contentions was based on the statement made by the trial judge that "racehorses ride with blinkers" and that there is no evidence before his Honour that "police horses are equipped with blinkers". His Honour in fact went on to say that, even so, the number of jockeys who ride at a gallop in horse races is particularly small. It is by no means clear that it was critical to his Honour's reasoning that racehorses ride with blinkers and that police horses are not equipped with blinkers, whether or not those assumptions were correct. Ms Green accepts that there was no assertion made in the course of the hearing of either of those facts. 44However, whether or not those statements are relevant to any part of the trial judge's reasoning, once it is accepted that the fact that jockeys might be required to be exposed to particular risks is not determinative of the risks to which members of the general workforce would normally be required to be exposed in the course of their employment, the question falls away. His Honour made no error in concluding that the risks to which Ms Green was required to be exposed were not risks to which members of the general workforce would normally be required to be exposed in the course of their employment.

Whether the Amount Awarded was Commensurate with the Risks 45The second matter raised by the Trustee in the appeal is asserted error on the part of the primary judge in forming an opinion as to an additional amount that is commensurate with the risks to which Ms Green was required to be exposed. The Trustee contended that his Honour erred in finding that the risks were commensurate with an increase from 85 percent to 92.5 percent. The Trustee says that, in determining what increase was commensurate with the risks to which Ms Green was required to be exposed, his Honour erred first in failing to take into account her outstanding expertise as an equestrienne as a factor reducing the level of risks to which she was required to be exposed, and secondly in failing to give adequate reasons for his determination. 46No valid complaint can be based on the fact that Ms Green had outstanding expertise as an equestrienne. There is nothing in the language of s 10(1A)(c) that requires an assessment of the additional amount to be based upon the particular skill or expertise of the disabled member of the police force. The fact that Ms Green may have been a more skilled equestrienne than some other member of the police force is an irrelevant consideration when forming an opinion as to the additional amount that is commensurate with the risks to which Ms Green was required to be exposed. By way of analogy, reference may be made to the risks to which a police officer engaged in a high-speed pursuit is required to be exposed, which risks the Trustee agreed would attract s 10(1A)(c). The unsurprising fact that such a police officer would be highly skilled in driving a car at high speed cannot affect an assessment of an additional amount that is commensurate with those risks. 47The thrust of the Trustee's second complaint is based on the observation made by the primary judge that Ms Green said that the risks that she ran were greater than the risks to which a mounted police officer would be exposed in dealing with a civil disturbance and with offenders. His Honour concluded that the risks described by Ms Green were in the mid-range of the spectrum. The Trustee says that, in the light of that conclusion, his Honour must be taken to have rejected Ms Green's evidence that the risks to which she was required to be exposed were greater than that of a mounted police officer dealing with a civil disturbance and that, having rejected that contention and concluding that the risks to which Ms Green was required to be exposed were in the mid-range, his Honour gave no reasons for his determination. 48That reasoning is specious. The requirement is for the decision-maker to make a judgment as to an amount that would be commensurate with the relevant risks to which the incapacitated member of the police force was required to be exposed. Ms Green described the risks to which she was required to be exposed as far more dangerous than the risks to which mounted police officers are required to be exposed in a civil disorder or riot. Ms Green explained that in those circumstances, there is no fast riding involved and the risk of a horse shying or taking fright is lessened by the fact that the horses are side by side, preventing one horse from jumping to one side. Those risks, of course, are different from the risks to which a mounted police officer is required to be exposed in giving chase on a horse at speed. The Trustee apparently conceded that the latter might be assessed as "mid-range". The latter risks are more akin to the risks to which Ms Green was required to be exposed in participating in the Red X drill. 49It is clear that his Honour did not reject Ms Green's evidence. His Honour accepted her evidence that the risks to which she was required to be exposed were greater than those to which a mounted police officer dealing in a civil disturbance with offenders would be required to be exposed. That is not to say that Ms Green was purporting to give evidence about whether the risks to which she was required to be exposed were mid-range or otherwise. They could be greater than those to which a mounted police officer dealing with a civil disturbance is required to be exposed, but nevertheless be mid-range. There was no error on the part of the trial judge in the determination that he made for the purpose of s 10(1A)(c)(ii) in forming an opinion as to the additional amount that was commensurate with the risks to which Ms Green was required to be exposed.

Conclusion 50It follows that the appeal should be dismissed. The Trustee should pay Ms Green's costs of the appeal.

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: 28 August 2014