Conway v SAS Trustee Corporation [2012] NSWDC 249

District Court New South Wales

Medium Neutral Citation: Conway v SAS Trustee Corporation [2012] NSWDC 249 Hearing dates: 2, 3, 9 October 2012 Decision date: 09 October 2012 Before: Neilson DCJ Decision: I set aside the decision of the defendant, made by its delegate, PSAC, on 24 November 2011, and I decide that the plaintiff's pension ought be increased to 90% of the salary of his office, commencing on 28 November 2008 Catchwords: Police - Disabled member of police force medically discharged from force as result of multiple infirmities caused by being hurt on duty when member of force - Disabled member totally incapacitated for work outside force - Determination of former officer's annual superannuation allowance inclusive of special risk benefit - Meaning of "risks members of general workforce ... would normally not be required to be exposed" Legislation Cited: Police Regulation (Superannuation) Act 1906, s 10(1A)(c) Cases Cited: Byrne v SAS Trustee Corporation, NSWDC, RJ416/07, Truss DCJ, 16 May 2008, unreported Thoms v SAS Trustee Corporation, NSWCC No 7721/98, Geraghty J, 5 July 1999, unreported Walsh v SAS Trustee Corporation [2004] 1 DDCR 438 Category: Principal judgment Parties: Mark Conway (Plaintiff) State Super SAS Trustee Corporation (Defendant) Representation: Mr T Edwards (Plaintiff) Mr T Ower (Defendant) Harris Wheeler (Plaintiff) Mr R Blume (Defendant) File Number(s): RJ124/12

Judgment 1The plaintiff, Mr Mark Conway, is a former sergeant of police. He was attested as a probationary constable of police on 8 December 1975 and thereupon became a contributor to the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906 (the Act). 2On 30 October 2008, the Police Superannuation Advisory Committee established under the Act decided that the plaintiff was incapable of discharging the duties of his office on account of the following infirmities: "Chronic adjustment disorder, with anxiety and depressed mood; mild neuro-cognitive disorder; bilateral tinnitus and bilateral sensory neural hearing loss; mild supraspinatus tendonitis at the right shoulder; degenerative changes with disc space narrowing and osteophyte formation at the C4/5, C5/6 and C6/7 cervical spine; avulsion injury to the tip of the medial malleolus and compression fractures in the mid thoracic spine T7 to T9; and post traumatic osteoarthritis to both knees." 3As a result of that certificate of PSAC, the plaintiff was medically discharged from the New South Wales Police Force on 27 November 2008. Eventually, after proceedings in this Court, the Commissioner of Police, by his delegate, determined on 16 July 2010 that the plaintiff had sustained a number of injuries on a number of dates. According to exhibit G, the following dates and injuries are specified: Dates Injuries 19 January 1982 Left knee 15 September 1982 Neck and mild neuro-cognitive disorder 7 November 1984 Neck and back 13 January 1989 Right shoulder and neck 21 October 2003 Back 1 September 2006 Right knee 18 July 2007 Psychological 15 August 2007 Hearing loss/tinnitus