Day v SAS Trustee Corporation [2009] NSWCA 222

New South Wales Court of Appeal

CITATION: Day v SAS Trustee Corporation [2009] NSWCA 222

HEARING DATE(S): 3 July 2009

JUDGMENT DATE: 31 July 2009

JUDGMENT OF: Giles JA at 1; Ipp JA at 75; Basten JA at 76

DECISION: (1) Appeal allowed; (2) Set aside the order made on 4 July 2008 confirming the Committee's decision; (3) Remit the matter to the District Court for new determination; (4) Respondent pay the appellant's costs.

CATCHWORDS: Police officer - widow's superannuation entitlement - Commissioner determined officer's death caused by being hurt on duty - hurt on duty meant injury in course of and substantially contributed to by employment - parties conducted case on basis hurt on duty by reason of archiving acitivities - application to District Court requiring determination concerning nature of risks to which officer exposed - judge not satisfied death suffered by reason of or in course of archiving duties or employment at all - not consistent with Commissioner's determination - also departed from common position in proceedings - gave grievances in point of law - appeal upheld and remission for new determination.

Commissioner of Police v Kennedy [2007] NSWCA 328; Commissioner of Police v SAS Trustee Corporation (2002) 131 IR 243; CASES CITED: Larson v Commissioner of Police [2004] NSWCA 126; Murray v Commissioner of Police [2004] NSWCA 365; Saad v Commissioner of Police (1995) 12 NSWCCR 70.

PARTIES: Jacqueline Louise Day - Appellant SAS Trustee corporation - Respondent

FILE NUMBER(S): CA 40322/08

COUNSEL: B Gross QC & S Tzouganatos - Appellant T Ower - Respondent

SOLICITORS: Walter Madden Jenkins - Appellant SAS Trustee Corporation - Respondent