McGilchrist v Commissioner of Police [2010] NSWDC 324

New South Wales District Court

CITATION: McGilchrist v Commissioner of Police [2010] NSWDC 324

HEARING DATE(S): 31 May to 4 June, 19 to 23 July and 3 to 5 August 2010 EX TEMPORE JUDGMENT DATE : 6 August 2010

JURISDICTION: Civil

JUDGMENT OF: Neilson DCJ

DECISION: 1) I confirm the decision of the Commissioner of Police made on 6 January 2009

CATCHWORDS: POLICE - hurt on duty - psychological injury - whether certified infirmity wholly or predominantly caused by reasonable action taken on behalf of defendant with respect to discipline - Workers Compensation Act 1987 (NSW) s 11A

LEGISLATION CITED: Police Regulation (Superannuation) Act 1906 s 21 Workers Compensation Act 1987 s 11A

Commissioner of Police v Minehan (2003) 1 DDCR 57 Department of Education and Training v Sinclair (2005) 4 DDCR 206 CASES CITED: Guff and Others v The Commissioner of Police (2007) 5 DDCR 132 Irwin v The Director General of School Education (NSWCC, 18 Jun 1998, unreported) Ivanisevic v Laudet Pty Limited (NSWCC, 24 Nov 1998)

PARTIES: Stephen Robert McGilchrist (Plaintiff) The Commissioner of Police (Defendant)

FILE NUMBER(S): RJ330/09

COUNSEL: Mr P. O'Rourke (Plaintiff) Mr J. Sharpe (Defendant)

SOLICITORS: Oates & Smith Solicitors (Plaintiff) Tresscox Lawyers (Defendant)

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1 The plaintiff, Stephen Robert McGilchrist, is a former inspector of police. He was attested as a probationary constable of police on 25 November 1983, and thereupon became a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906. 2 The plaintiff last physically worked as an officer of police immediately prior to going on sick report on 15 May 2007. The evidence does not disclose what his actual last day of work was. It may be that, for example, 14 May 2007 was a rostered day off or a non-working day. On 27 November 2008 the Police Superannuation Advisory Committee established under the Act determined that the plaintiff was incapable of discharging the duties of his office on account of the infirmity of "chronic adjustment disorder with depression, with features of post-traumatic stress". As a result of that certification, on that same day the plaintiff was discharged from the New South Wales Police. 3 As a result of the certification by the Police Superannuation Advisory Committee, and as a consequence of the plaintiff's medical discharge, having completed 25 years of service in the Police Force, the plaintiff became entitled to a superannuation allowance of 60.625% of the salary of his office.