Wilson v SAS Trustee Corporation (No 1) [2020] NSWDC 804

District Court New South Wales

Medium Neutral Citation: Wilson v SAS Trustee Corporation (No 1) [2020] NSWDC 804 Hearing dates: 23-24 November 2020 Date of orders: 24 November 2020 Decision date: 24 November 2020 Jurisdiction: Civil Before: Neilson DCJ Decision: Order for separate determination of issue revoked. Catchwords: POLICE SUPERANNUATION – W medically discharged from NSW Police for chondromalacia patellae – PTSD subsequently diagnosed – Order previously made for separate trial on issue tendered by plea numbered 10 in Defence – After two days of hearing issue too complex to be dealt with other than after a full trial – Order for separate determination of issue revoked. Cases Cited: SASTC v Miles [2018] HCA 55 Category: Procedural rulings Parties: Plaintiff – Steve Wilson Defendant – SAS Trustee Corporation Representation: Counsel: Plaintiff – J. Morris SC Defendant – T. Ower

Solicitors: Plaintiff – Cardillo Gray Partners Defendant – SAS Trustee Corporation File Number(s): RJ00258/19 RJ00171/20 Publication restriction: Nil.

Judgment 1. HIS HONOUR: When this matter came before me at a call over on 6 October 2020, it appeared to me that a determination of the issues raised by the plea numbered 10 in the Defence filed by the defendant on 15 July 2020 might bring an end to these proceedings. Accordingly, I ordered a separate trial of the issues tendered by that plea. 2. The matter was set down for hearing yesterday with an estimate of one day. The matter could not be completed yesterday and has continued to this afternoon. It is now 4.10pm. However, significant factual issues have arisen on a number of issues. 3. They are, firstly, whether the notice given by the defendant to the plaintiff at the time of his medical discharge on 29 March 2000 was adequate and sufficient to advise him of his ability to apply to have the decision of the defendant of 26 March 2000, that he had been certified to be incapable of discharging the duties of his office on account of the condition of chondromalacia patellae, determined by the Court. 4. On some of the medical evidence before me, it appears to be an underestimate of the work-related pathology caused the plaintiff's knee. In any event, it is clear that the plaintiff did not apply to be medically discharged. That application was made for him by the New South Wales Police Force. Furthermore, the plaintiff did not volunteer what conditions affected his ability to do his work in the Police Force, but he had been advised by the examining Police Medical Officer that the condition of his left knee was relevant to the application made by the New South Wales Police. 5. This is in the context of a man who previously had been diagnosed as suffering from PTSD by the police psychologist. That certification was made relatively shortly before the plaintiff ceased working in the Police Force in February 1998. In addition, the evidence does strongly suggest that the plaintiff now suffers from PTSD and has been suffering from that condition from at least 2009 or 2010 and that the subject matter of the intrusive recollections, nightmares and the like, is of experiences that he had in New South Wales Police Force. 6. To put it bluntly, the plaintiff's case establishes a prima facie case to suggest that his currently diagnosed PTSD, accepted by a psychiatrist qualified by the defendant, is prima facie an entitlement that arises from his police service and is currently incapacitating him. 7. Because of the recent decision of the High Court of Australia in SASTC v Miles [2018] HCA 55, the plaintiff's subsequent suffering from PTSD, if it were a subsequent suffering, cannot be taken in the assessment of the quantum of the plaintiff's hurt on duty pension unless it is a "certified infirmity" within the meaning of s 10B. 8. However, the issues being, as I said, more extensive that I initially perceived and the arguments extremely subtle, it appears to be more appropriate that a full trial be conducted than a trial limited to the issues raised by plea numbered 10 in the Defendant's defence. 9. For those reasons, I revoke the order for the separate trial made on 6 October 2020 and I will now seek to make arrangements for the further conduct of these proceedings.