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 4As a result of that certification by the Commissioner of Police, the plaintiff became entitled to a "hurt on duty" pension pursuant to s 10(1A) of the Act. 5On 26 May 2011, PSAC, acting as a delegate of the current defendant, determined to increase the plaintiff's base HOD salary of 72.75% to 85% of the salary of his office as at the date of his medical discharge. In essence, the defendant accepted that the plaintiff was totally incapacitated for all forms of work. The plaintiff then applied for a "special risk benefit" being a further pension increase pursuant to s 10(1A)(c) of the Act. 6On 24 November 2011, PSAC, acting as delegate for the current defendant, determined to increase the plaintiff's HOD pension to 87% of the salary of his office. The plaintiff was aggrieved of that decision of the defendant and brings an application to this Court to determine his entitlement under s 10(1A)(c) of the Act. Using a combination of a history obtained by Dr Michael Diamond, contained in his report of 20 December 2009 which is part of exhibit A, and the plaintiff's service history contained in one of the Commissioner of Police's documents, which is exhibit K, the following is a short description of the plaintiff's history as a member of the New South Wales Police Force. 7In October 1975, the plaintiff commenced a nine-week training course at the Redfern Police Academy. He successfully completed that course on 7 December 1975 and on the following day was attested as a probationary constable of police. His first posting was to the now closed Phillip Street Police Station. All told, the plaintiff was at Phillip Street until 4 August 1979. His stint at Phillip Street included a six-month secondment to weapons training. That occurred between 8 June 1978 and 25 November 1978. That secondment was not to train with weapons but to be a trainer in the use of weapons. 8The plaintiff then spent two years in the forensic ballistics section, where he became a crime scene examiner. That involved his going to crime scenes and to the morgue to recover projectiles. The reason for this posting was because the plaintiff had a long-term interest in firearms and he pursued that throughout his police career. Shortly after joining the police force, the plaintiff joined the Police Pistol Club, where he became a proficient competitive shooter. 9It would appear that on or about 17 January 1982 the plaintiff was transferred to general duties at Campsie Police Station. He worked at Campsie Police Station until 15 June 1985. During that period, he was appointed a senior constable of police on 8 December 1984. On 16 June 1985 the plaintiff joined the Tactical Response Group (TRG) in a full-time role as senior constable. He remained there until he joined the Weapons Training Unit. Formally that transfer was on 24 September 1990 but the plaintiff told me, and I wholly accept, that he started there in about June or July of 1990 on an informal basis. The date of his formal appointment to weapons training coincided with his appointment as a sergeant of police. 10In weapons training the plaintiff was based at the Sydney Police Centre. He remained in the weapons training role as a sergeant until his work career formally ended on 27 November 2008. It is not at all clear when the plaintiff last actually worked as a police sergeant. 11The decision of the Commissioner of Police of 16 July 2010 appears to have two "deemed dates of injury". There is clearly a deemed date of injury for the hearing loss and tinnitus on 15 August 2007 but the deemed date of injury for this plaintiff's psychological condition was 18 July 2007. No one has been able to explain to me this discrepancy. However, it is clear that on 12 September 2006 the plaintiff was going through the process of seeking medical discharge. 12The plaintiff saw Dr Elias Matalani on 5 October 2006. The plaintiff told Dr Matalani that he was, at that time, sergeant in charge of research and his duties included training and research in various methodologies and defensive techniques. Dr Matalani thought the plaintiff was fit for suitable duties and also recorded that the plaintiff was currently performing "suitable duties". 13The plaintiff next saw Dr Matalani on 23 October 2007 and Dr Matalani then recorded that the plaintiff went on sick leave "approximately three months ago". It would therefore appear that perhaps in 2006 the plaintiff went on to restricted duties and finally went on full-time sick report in July or August 2007 14The plaintiff's application relies upon events which gave rise to his psychological illness and to his industrial deafness and resultant tinnitus; to use the terminology used by PSAC, the plaintiff relies on stressors which led to the "chronic adjustment disorder with anxiety and depressed mood" and upon "bilateral tinnitus and bilateral sensory neural hearing loss". The plaintiff does not allege that any of his other medical infirmities was caused by his having been exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment. 15It is perhaps convenient to deal with the second part of Mr Conway's claim first. There are before me two reports from otorhinolaryngologists. The first is from Dr Rod Payten, who saw the plaintiff on 17 March 2008 and the second is from Dr Bryan Williams, who saw the plaintiff on 23 April 2011. 16The plaintiff saw those two specialists at the request of the present defendant. The noise exposure recorded by Dr Payten is this: "His last noisy employer was the NSW Police Force which he joined in December 1975. He has been a weapons instructor from 1977 until the present time. Usually he wears earmuffs but on occasion [sic] he would be taken by surprise if someone fired unexpectedly while he was lifting off his earmuffs in order to converse. While in the [TRG] from 1985 to 1990 he was exposed to the noise of weapons sometimes without ear protection. From 1990 until 1994 he was at the Sydney Pistol Range. From 1994 until the present time has been in a Research group into special projects. This involved testing 27 different types of pistol by repeated firing. In particular he was exposed to Glock pistols being fired for 8 hours a day for several days in a row. During that time he wore ear protection which attenuated the sound he stated by 27 dB. He now wears earmuffs which reduce the sound by 33 dB. In addition he wears earplugs underneath the earmuffs to further reduce noise exposure. The Glock pistol is particularly noisy and puts out 156 dB of noise. It is likely therefore that the weaker ear protection he wore originally was not sufficient to protect him against such noise. In 1987 he was exposed to shotgun noise without ear protection during operations. This produced loud tinnitus but this subsided after a day or so. However it is an indication that some cochlear damage could have taken place. He is also exposed to the noise of the occasional distraction grenade." 17An exposure to a sound of 156 dB is sufficient to cause instantaneous deafness of some degree. A reduction of 156 dB by 27 dB would put the noise exposure at 129 dB, which if exposed to for over a period of one day would be sufficient to induce sensori-neural deafness. It is easy to accept therefore that the plaintiff's work did lead to his suffering from sensory neural deafness. The terms 'sensory neural deafness', 'industrial deafness' and 'boilermaker's deafness' are all interchangeable. They are synonyms when used here. 18The second history of exposure to noise is that contained in the report of Dr Williams. It is this: " Weapons Instructor in the pistol ranges from 1978-2008 but was on sick leave for some time in 2007. He said he was exposed to the noise of police shooting Smith & Wesson Revolver 38 Specials and Glock .40 Calibre. He said 500,000 rounds were fired from pistols from Police he was training. He said 500,00 [sic] rounds were fired from pistols by himself. Shot guns in the [TRG]. He said in training he fired 2,000 rounds. He said hearing protection was worn during this period of employment. Rifle training in 5.56 and 7.62 Calibre guns. He said he fired 1,000 rounds. Flash bangs - exposure on one occasion. Plus noise from sirens and fire truck pumps. Plus one month training with the Australia Regular Army in Improvised Explosive Devices with blast exposure." 19The exposure to the noise of exploding IEDs was fortunately not in Afghanistan but in Bandiana in Victoria. The plaintiff made it quite clear that he was quite some distance from the devices when they exploded and his evidence indicated to me that he was not suggesting that they were responsible in some way or another for any part of his industrial deafness. There is no suggestion that the plaintiff himself was a member of the Australia Army: rather, he went there in the course of his police service, no doubt for training purposes. 20It is clear that the plaintiff's exposure to loud noise in the Police Force was prolonged. In particular, it was prolonged during the period from June or July 1990 until the end of his work in probably 2006, when he may have gone on restricted duties. However, even antecedent to that time, there was exposure to loud noise when the plaintiff was working as a weapons instructor and based at the Phillip Street Police Station and also when he was working in the Ballistics unit for two years and also when he was working in the TRG. In the TRG, it ought be noted that some training exercises involved exposure to the actual noise of live ammunition and blanks being fired because for such training ear muffs could not be worn as they would impede simulation of an emergency event and would also impede, for example, the giving of warnings and commands and reacting to the noise being generated by those pretending to be offenders. 21It is important to bear in mind the terms of s 10(1A)(c). They are these: "if the disabled member is totally incapacitated for work outside the police force and, in the opinion of STC, the member was hurt on duty because the member was required to be exposed to risk to which members of the general workforce would normally not be required to be exposed in the course of their employment, an additional amount that is: (i) not less than 12.25 per cent and not more than 27.25 per cent of the members attributed salary of office, and (ii) commensurate, in the opinion of STC, with the risks to which member was so required to be exposed" 22The first question I must ask myself was whether the plaintiff was exposed to risks to which members of the "general workforce" would normally not be required to be exposed. There is some disagreement in the case law on the meaning of the words "general workforce". In Walsh v SASTC (2004) 1 DDCR 438, I said this at [35]: "He has not merely been exposed to the horror of the crime scene and the deceased body, but having the full conduct of the investigation, including the lengthy post-mortem, and the distress with having to deal with the deranged mother and the affected family members and family friends which takes this case beyond what one might think would be a 'normal' case of being exposed to horrendous crime scenes, which members of the 'general workforce' would not normally be exposed. Furthermore, in my view, being a member of the ambulance service or a member of an emergency or rescue service would not in my view be part of the 'general workforce'. I believe it will be proper to include in the general workforce people who work in offices, shops and factories, people who work on rural properties, people for example who work in abattoirs, but not people who work in specialised rescue and emergency work, such as ambulancemen, firemen and policemen." 23My judgment was referred to by O'Toole DCJ in Goddard v SASTC (unreported, 5 August 2005, RJ324/04). In that case the plaintiff was claiming a special risk benefit, having been discharged with industrial deafness and a psychiatric illness. At [52] her Honour commenced thus: "[52] Neither Mr O'Rourke nor Mr Ower of counsel, who appeared for the appellant and the respondent respectively in Walsh v SASTC was able to name an appellate decision construing 'the general workforce' in subs (1A)(c) of s 10 of the Act. In Walsh Neilson DCJ had to quantify the risk to which the appellant had been exposed. Walsh does not elucidate his Honour's remark, that 'being a member of the ambulance service or a member of an emergency or rescue service would not ... be part of the 'general workforce'. Walsh does not explain why his Honour would include 'in the general workforce people who would work in offices, shops and factories, people who work on rural properties, people for example who work in abattoirs, but not people who work in specialised rescue and emergency work, such as ambulancemen, firemen'. [53] The 'general workforce' has a natural meaning in common parlance. Consequently I am inclined to infer that the Legislature distinguishes the police force from the entire 'general workforce' but, for the purposes of determining this appeal, I do not need to decide whether 'the general workforce' describes all workers except members of the police force." 24I find the first sentence of para [53] of her Honour's judgment Delphic. I know of no "natural meaning in common parlance" of the words "general workforce". Her Honour appears to me to be construing the words "general workforce" used in the paragraph as meaning "other members of the workforce", which it does not mean at all. If Parliament had intended to divide the entire workforce between the Police Force and all other workers it could have easily said so but it did not. 25My dictum is also referred to by Truss DCJ in Byrne v SASTC (unreported, 16 May 2008, RJ416/07). At [26] her Honour said this: "In my view the relevant risk is that of injury causing a police officer to become hurt on duty. The base line of assessment of the risk are the risks associated with the general workforce which obviously covers a very broad spectrum. I agree with the observations of Neilson J in Walsh that it would be proper to include in the general workforce, for example, people who work in offices, shops and factories, on rural properties and the like. However, with respect to his Honour I disagree with his observation that persons who work in specialised rescue and emergency work, such as ambulancemen, firemen and policemen ought be excluded. In my view had the legislature intended to exclude such workers it would have done so. In any event, in terms of numbers, they would not comprise a significant proportion of the general workforce. This matter became relevant because the defendant seized upon the plaintiff's evidence at the particularly distressing events of which he gave evidence firemen and ambulance officers were also in attendance and it was submitted that as they would have been exposed to the same risk, they could not be regarded as exceptional." 26With unfeigned respect to her Honour, it is hard to see what work the adjective "general" has to do in the phrase "members of the general workforce" if it means everybody in the workforce. If that is what Parliament intended, Parliament could easily have used verbiage such as the verbiage I have used to describe the meaning to be attributed to "members of the general workforce" as expounded by O'Toole DCJ. 27The adjective "general" must have some work to do. The opposite of "general" is "special" or "specialised". It can be readily gleaned from the Latin of the maxim of interpretation generalia specialibus non derogant, that general provisions do not derogate from special provisions. The Act appears not to be dividing the workforce between the police and everybody else but between the police and "the general workforce" not "the rest of the workforce". In my view, bearing that in mind, I maintain the position I adopted in Walsh that one should exclude from a consideration of the "general workforce" workers in specialised forces such as ambulancemen and firemen and perhaps, and it is here relevant, members of Her Majesty's forces. 28However, I cannot disagree with the observation made by O'Toole DCJ in Goddard where her Honour continued in [53] thus: "It seems to me that 'the general workforce' includes factory workers, panel beaters, motor body builders, boiler makers, sheet metal workers, construction workers, operators of power tools and of heavy plant and equipment on urban building sites, couriers who ride bicycles and motorcycles in congested urban traffic and local council workers who repair urban roads and footpaths: those members of the 'general workforce' are exposed [to] noise which exceeds 85 decibels. It seems to me 'the general workforce' also includes miners, abattoir workers and construction workers who use explosive and concussive devices which generate noise that is similar to small arms fire in confined spaces." 29I wholly accept that many members of the general workforce are exposed to loud industrial noise. Indeed, in the course of argument I pointed out that making such a submission is largely otiose in light of the fact that what is now often called industrial deafness was known originally as "boilermaker's deafness" and was described in the Workers Compensation legislation as 'boilermaker's deafness' and any deafness of like origin. However, the amount of industrially caused deafness has, due to legislation commencing in the 1980s, fallen away dramatically because of occupational health and safety concerns and, for example, improved hearing protection, which is proven in the evidence of the plaintiff himself and, for example, recorded by the history he gave to Dr Payten of improvements in hearing protection. 30It is significant, in my view, that at the time when the number of persons affected by industrial deafness was decreasing and that there were Occupational Health and Safety laws requiring employers to reduce the amount of noise generated within the workplace the plaintiff continued in his work as a weapons trainer to be exposed to the loud noise of the discharge of firearms. 31The leading authority as to the meaning to be attributed to s 10(1A)(c) is still Thoms v SASTC, which I cite in [24] of Walsh v SASTC. It is worth repeating: "There are many, many risks to which policemen are required to be exposed, and which are more numerous and more dangerous than risk to which the general workforce are normally exposed. Mr Mansfield [Counsel for the respondent] identified some of them. He said, for example, that policemen are required to rescue children, babies from houses that are on fire; that they do this and the community is grateful. They are also required to arrest dangerous criminals. It seems to me that [s 10(1A)(c)(ii)] invites me to place on a spectrum various risks to which policeman are exposed and which will be uncommon, or be a risk to which the workforce would normally not be exposed, and to assess where those risks are on the spectrum, in order to make an award of a percentage of attributed salary between 85 and 100 per cent." 32Very few people work in our community as weapons trainers. Very few people would have worked for the length of time that the current plaintiff worked with firearms and handguns. Very few people would have been exposed to the risk of noise by being exposed to over one million rounds of ammunition fired from Smith and Wesson revolvers and Glock pistols. 33However, here the thing which I think is pertinent is the work that the plaintiff did, in particular, training in the TRG that required him to be exposed to the noise of firearms deliberately without any form of hearing protection which, in general, would be counter to the industrial environment in nearly every industry governed by statute in this State. 34For reasons that I will in due course come to, it was submitted to me by Mr Ower for the defendant that only "part of a part" of the 15% available could be attributed, if at all, to the plaintiff's exposure to noise which carried a risk that member of the general workforce would not normally be exposed to. That is because of the large number of certified infirmities, only some of which are the subject of the current application. 35There is much force in what Mr Ower submitted and it is supported by authority. During the course of the same argument, I suggested to Mr Ower perhaps 1% to which Mr Ower replied "or less". Bearing in mind that part only of the plaintiff's exposure to noise carries a special or unusual or uncommon risk, to use terminology used in other judgments, I would allow half a percent for the special risk involved in the plaintiff's exposure to loud industrial noise when working in the TRG. 36I now turn to the argument put forward by Mr Ower about a "part of a part" of the 15%. Mr Ower is quite correct in his submissions that it flows as both a matter of logic and from the decision of Truss DCJ in Byrne, that where only part of the certified infirmity or only a large number of certified infirmities carries a special risk that there must be some apportionment. In [10] her Honour said this: "In my view, the plaintiff is only entitled to rely upon risks which were causative of the infirmities certified in respect of which the pension was granted, and not upon risks which arise out of his police service, generally. [Paragraph](c) makes reference to the member being hurt on duty because the member was required to be exposed to risks." 37Commencing at [20], her Honour said this: "As stated earlier, for the purposes of the subsection, the risks relied upon are causally relevant only to certify infirmity elements of chronic Post Traumatic Stress Disorder. [21] The defendant stated that subs (1A)(c) does not envisage a member being certified hurt on duty, as a consequence of more than one infirmity, and submitted that the event of certification of multiple infirmities where the infirmity relied upon is not, of itself, totally incapacitating, the member has no entitlement. The plaintiff does not contend that he is totally incapacitated as a consequence of the elements of PTSD, but says this does not preclude entitlement. [22] I do not consider that the wording of s 10(1A)(c) supports the defendant's submission. In my view the relevant events required to establish prima facie entitlement are total incapacity for work outside the police service, and the member being hurt on duty. Once established, the Court then needs to determine: whether there was exposure to any causally relevant risks; if so, the additional amount which is commensurate with those risks." 38Mr Ower was gracious enough not to repeat the submission that he obviously made to her Honour that is the subject of [21] of her Honour's reasons, and obviously now accepts that what her Honour said was correct and indeed what has been the practice for the nearly 20 years that I have been on the bench dealing with claims under this Act. 39Here there are a large number of what I refer to as "orthopaedic conditions", as well as the psychological condition and the hearing-loss and the resulting tinnitus. The defendant submits that I should attribute two-thirds of the incapacity to the orthopaedic injuries, because they, in effect, are more incapacitating than the plaintiff's psychological condition. 40In my view, some things stand out in opposition to that submission. The first history that I have recorded by a medical practitioner was, was taken by Dr Len Lambeth, a consultant psychiatrist who saw the plaintiff on 12 September 2006. The second history I have is one recorded by Dr Elias Matalani on 5 October 2006. 41Dr Matalani is a "consultant occupational physician". The doctors' specialties need to be considered. One would think that they would take histories relevant to their expertise and that, for example, a physician would not take a history of orthopaedic problems or psychiatric problems, and a psychiatrist would not take a history of orthopaedic problems or physical injuries. But one might expect a "consultant occupational physician" to take both a medical and surgical history, but not a psychiatric history. 42I therefore must bear in mind that one would expect Dr Lambeth to take a history from a psychiatrist's point of view, and one would expect Dr Matalani to take a medical and surgical history, but not necessarily a psychiatric history. 43The history recorded by Dr Lambeth is this: "Mr Conway is a Sergeant in the NSW Police, and has been a Police Officer since 1975. Mr Conway is a weapons training instructor. At interview, he told me, 'I am depressed. I'm not coping. I've got tinnitus.' He described depressed mood for over 10 years, which is constant and accompanied by feelings that life is not worth living. Mr Conway is not suicidal. His sleep is characterised by severe initial insomnia with him [sic] telling me that, 'my mind races all the time'. He has lost interest in, and fails to enjoy his usual activities and has lost all interest in pistol shooting. He told me that he puts everything off. He says that his concentration is 'stuffed', and memory is 'lousy'. There is no diurnal variation in mood and his libido is low. He is irritable and fatigued 'all of the time'. He complained of constant worry about things that he realised that he should not worry over. This all has the effect of him [sic] having to force himself to go to work, feeling that everything is an effort and feeling that he has lost all efficiency. This makes him feel even more depressed. His tinnitus has been present on a constant basis for 4 years." 44The "History of Presenting Condition" recorded by Dr Elias Matalani refers only to orthopaedic injuries. There then is a list of current symptoms and their severity. That list is confined to complaints concerning the neck and pain radiating upwards towards the base of the skull accompanied by headache, but a denial of symptoms in the fingers or hands. The rest of that section of the report only concerns what makes the plaintiff's neck pain better or worse. There is also another section of the report headed "Relevant Past and Medical History", which records other orthopaedic injuries and this matter: "Approximately 11 years ago he became depressed, which he relates to the nature of his employment. He developed mood swings, memory loss and depressed mood. He was prescribed Cipramil (anti-depressant)." 45Clearly Dr Matalani did not try to ascertain from the plaintiff how his depression arose or developed, or how the plaintiff thought it was related to the nature of the plaintiff's employment. 46The one thing that strikes me when reading the two histories is the immediacy of the history obtained by Dr Lambeth and his extensive quoting of what the plaintiff himself said. Furthermore, there is no history recorded by Dr Matalani of the "breakdown" which the plaintiff described in his evidence to me, and which is consistent with the things that the plaintiff told Dr Lambeth as he recorded them at his examination on 12 September 2006. That history of a "breakdown" is recorded thus in the report of Dr Brian Potter, Consultant Psychiatrist, who interviewed the plaintiff on 17 March 2008: "'A couple of years ago it started to intrude into my work. I completely lost it at work. Cry and go home. It was just everyday work' He described, at the time, working in a stressful environment in which he was a firearms trainer. 'Started out with three people and ended up with just me'. He realised that 'The job was not good for me. I decided to pack it in'. He had this thought approximately 2 years to 18 months ago. Sgt Conway discussed the issue with his wife and his bosses. He consulted a solicitor and started to prepare his papers to leave the Police." 47Again, what the plaintiff told me in his evidence is consistent with a breakdown at work, of just bursting out into tears, being only able to go home and then deciding that he could no longer cope with the job, and to start the process that would terminate his employment as a sergeant of police. Clearly, the plaintiff's total incapacity is caused by a large number of conditions; however, I would not attribute two-thirds of the problem to the plaintiff's orthopaedic and neurological injuries. 48There is some assistance also to be gained from the "neurological injury" to which I have referred, which is the "mild neuro-cognitive disorder" referred to in the certificate of PSAC and that resulted from a closed head injury suffered in a motor vehicle accident. On 15 September 1982, the plaintiff was driving to his home in Campbelltown from his then place of employment the Campsie Police Station, at the end of a nightshift. He fell asleep at the wheel, moved over onto the incorrect side of the carriageway and was involved in a head-on motor vehicle accident. Some of the practitioners believe that the closed head injury was the cause of some significant problem for the plaintiff on an ongoing basis. For example, Dr Potter in his report says this at the foot of p 7 and at the top of p 8: "Following the accident, Sgt Conway had significant problems with his memory, concentration, and ability to be able to tolerate frustration. He described being irritable with friends and family. He described having to relearn how to function at work with regard to his cognitive and memory difficulties. He was never investigated for these difficulties." 49In the next paragraph of his report, the doctor goes on to describe the plaintiff's involvement in a second motor vehicle accident, which, however, did not require "significant medical intervention". That event occurred on 7 November 1984 and according to the certificate of the Commissioner was the cause of injuries to the plaintiff's neck and back. 50Commencing at the foot of p 8 of his first report Dr Diamond said this: "I note the history of closed head injury and particularly the period of pre- and post- traumatic amnesia suffered by Mr Conway at the time of the motor vehicle accident in 1982. I also note that Mr Conway appears to have made a significant recovery from the effects of that head injury in that he was able to continue with his policing career and particularly to carry out the very demanding cognitive processes involved in the writing of specifications, training manuals and procedure manuals for the use of Glock semi-automatic pistol in the NSW Police Force. This was a demanding, prolonged task that would require significant neuro-cognitive skills that were clearly demonstrated by Mr Conway at that time. I also note that associated with chronic Post-Traumatic Stress Disorder there is frequently a drop in cognitive functioning as a result of the chronic hyperarousal and associated poor concentration that can develop from this condition. I note that the neurophsycometric testing carried out by Dr McMahon demonstrated impairment of the neurocognitive function of Mr Conway but that the extent of these findings was mild on neurophsycometric testing. It is difficult for me to form a view as to how much his neurocognitive impairment is due to the effects of the closed head injury as a result of the motor vehicle accident of 15 September 1982 and how much of this may originate from his chronic Post-Traumatic Stress Disorder. I cannot apportion the amount on clinical grounds." 51The plaintiff has not been discharged with chronic PTSD. However, Dr Diamond has conceded that another way of describing the same psychiatric condition that he diagnosed was the terminology adopted by PSAC. 52In his report of 28 February 2010 Dr Diamond said this: "The identification of the existence of chronic Post-Traumatic Stress Disorder as the overriding and most pervasive diagnostic entity, that can be identified at this point according to his current presentation, is a diagnosis that is not opposing that of chronic Adjustment Disorder with Anxiety and Depressed Mood, but rather one that subsumes the diagnosis of chronic Adjustment Disorder with Anxiety and Depressed Mood as part of its symptomatic constituents. This means that his clinical presentation currently still meet criteria for chronic Adjustment Disorder with Anxiety and Depressed Mood but his clinical presentation and current symptoms also meet diagnostic criteria for chronic post-traumatic stress disorder." 53In other words, whether one uses the term chronic PTSD or the terminology adopted by PSAC everyone is talking about one psychiatric condition, although different ways of describing it exist. 54The observations of Dr Diamond about what the plaintiff was able to do in the process of introducing the new Glock pistol have great moment. They clearly indicate that if there was a neuro-cognitive disorder resulting from the motor vehicle accident it had very little impact on the plaintiff's functioning up until that time. It would appear, therefore, that if there was a decrease subsequently in the plaintiff's concentration and memory, as there clearly was, then that should be more attributed to the plaintiff's psychiatric condition than to the neurological condition, that is the closed head injury due to the motor vehicle accident. 55The thrust of the evidence before me and the thrust of the evidence of the plaintiff is essentially that what caused him to go off duty as a sergeant of police was his psychiatric illness rather than his multiple physical injuries. I would attribute half of the plaintiff's "incapacity", half of the responsibility for the existence of the plaintiff's total incapacity to his psychiatric illness. The question then becomes how much of the plaintiff's psychiatric illness can be attributed to his exposure to risks to which members of the general workforce would normally not be required to be exposed. 56The first psychiatric stressor to which the plaintiff was exposed was the Granville Rail Disaster. That occurred on 18 January 1977. The history recorded by Dr Diamond of that event is this: "Mr Conway was a junior police officer working in Phillip Street at the time of the Granville train accident in 1976 [sic]. A group of officers was bussed to the site. He described it as "completely surreal". He had no concept of what he would encounter there. He said he was in a state of shock and numbness, unable to take in what he was seeing. There were dead bodies still in the carriages. At times he was up close to the carnages [sic]. He described pulling up a blanket on the ground in a state where he was detached and unsure of what he was doing. He said that he was "just not thinking". Beneath the blanket were portions of three different bodies. He retains very vivid recall of a woman's wedding rings on her hand. He says he will never forget what he saw. They were there from until 7.00 or 8.00 pm that night after the last survivors were taken away. The next day he was simply placed back on his routine duties and he was on guard box at Government House "as if it had not happened". After the event, he said he felt nothing. He said it was hard to describe what he experienced. He felt numb, detached and remote. About 10 years ago he watched a movie called "Day of Roses" about the Granville train accident. He thought he would be OK. He said it surprised him when it brought back all the memories and the feelings in such a vivid way. He became distress in the course of the interview in telling me this. He was reluctant to continue." 57I accept that the plaintiff did participate in the Granville train accident. It has to be recorded that he was sent there, not as a primary rescuer, but in order to keep the public clear of the crash scene. However, I accept that what the plaintiff did see there was probably his first major exposure to deceased bodies and gore and mayhem. 58The problem with this is the same problem that arose in Dive v Commissioner of Police (1997) 15 NSWCCR 366. Commencing at 370F, I said this: "Because of the date of the Granville train disaster, the respondent's plea to jurisdiction can be seen to be relevant. The respondent's case is that the post-traumatic stress disorder was caused solely by the Granville train disaster on 18 January 1977 and therefore this Court has no power to determine that the post-traumatic stress disorder was a result of the appellant's having been hurt on duty. The applicant's case is that not only that event but subsequent events involving deceased persons are cumulatively the cause of the post-traumatic stress disorder. Whilst the plea of the respondent to jurisdiction might seem to be otiose as there is no suggestion of any completing trauma which caused the post-traumatic stress disorder, it should be remembered that under s 10 of the Police Regulation (Superannuation) Act 1906, as it was in force before 21 November 1977, the disability of the police constable must be caused 'by wound or injury received in the actual execution of the duty of his office'. The question, of course, would be whether injury should bear the meaning it does in the Workers Compensation Act, meaning injury to both body and mind or whether the word 'injury' should be construed ejusdem generis with 'wound', such that it requires some external impact upon the body. That, of course, I do not have to determine." 59Earlier I pointed out the nature of the defendant's objection to jurisdiction. Commencing at 368G, I said: "Inter alia, the respondent has pleaded that this Court has no jurisdiction to make a determination favourable to the worker, because of at least one of the two medical conditions specified by PSAC resulted from the worker's employment prior to 13 November 1979 and that this Court only has jurisdiction to determine the compensability of injuries occurring after that date. That statement of law is, in my view, correct. In Staples v COP (1990) 6 NSWCCR 33, my colleague, Judge Burke, determined that this Court cannot take cognisance of injury received prior to 21 November 1979. His Honour held that the Government and Related Employees Appeals Tribunal retains jurisdiction in respect of injuries occurring before that date. I should point out that there are two dates referred to by his Honour in his judgment at 44-45 of the report. They are 13 November 1979 and 21 November 1979. The question as to the correct date was raised by his Honour Judge Manser in Conroy v Commissioner of Police, Compensation Court, No 30259/89, 15 November 1991, unreported at 31. The correct date is, in my view, 21 November 1979. The amending Act to the Police Regulation (Superannuation) Act 1906 was Act No. 133 of 1979. That Act received the Royal Assent on 13 November 1979 but did not come into force until 21 November 1979. Accordingly, the appropriate date is 21 November 1979 and not 13 November 1979. I should also say that in Conroy's case, his Honour Judge Manser acceded to that finding of his Honour Judge Burke that this Court cannot take cognisance of injuries occurring before 21 November 1979. As a matter of comity, I would follow those two decisions, but in any event, I agree with the decision of Judge Burke provided that one bears in mind that the date 21 November 1979 is correct." 60Clearly, for an injury before 21 November 1979, there is a different test for "compensability", namely a disability to be caused "by wound or injury received in the actual execution of the duty of his office", and the jurisdiction to determine such an issue lies with GREAT rather than with the District Court. 61Relying upon Sch 5 to Act No. 133 of 1979, the plaintiff before me submits that I could take into account the plaintiff's exposure to events at the Granville rail disaster as a relevant psychiatric stressor. Schedule 5 to the amending Act depends upon s 8 of that Act. Section 8 of that Act merely provides that, "Schedule 5 has effect". 62Schedule 5 is a saving and transitional provision for the purposes of the amending Act. It contains two clauses. They are these: "1 The Principal Act and the Police Regulation (Appeals) Act, 1923, as respectively in force before the commencement of Schedules 1 and 3, apply to and in respect of injuries received by a member of the police force before that commencement as if Schedules 1 and 3 had not been enacted. 2 The Principal Act and the Police Regulation (Appeals) Act, 1923, as respectively amended by Schedules 1 and 3, apply to and in respect of injuries received by a member of the police force after but not before the commencement of Schedules 1 and 3." 63In essence, the plaintiff submits that the words "injury" or "injuries" should not be interpreted as meaning "injurious events" but rather as meaning "the pathologies caused by injurious events", and in the alternative and perhaps additionally, the plaintiff submits that the only relevant date in these proceedings is the date specified by the Commissioner of Police in his certificate of 16 July 2010, namely the deemed date of injury, "18 July 2007", for the plaintiff's psychological condition. 64The submission put by the plaintiff is that the Commissioner of Police must have been relying upon s 15 of the Workers Compensation Act 1987. The short answer to that is the Commissioner of Police could have been relying on s 16 of the Workers Compensation Act 1987 and given a deemed date of injury for the aggravation et cetera of an underlying, non-compensable disease rather than merely certifying a compensable disease. Furthermore, one of the answers to those problems is that submitted by the defendant. The submission of the plaintiff essentially says that the word "injury" or "injuries" as used in Sch 5 to Act number 133 of 1979 should be construed as meaning the same as that word is defined in the Workers Compensation legislation and, relevantly, in the Workers Compensation Act 1987. However, that cannot be right because it refers to injuries received before 21 November 1979, which are clearly not related in any way to the Workers Compensation legislation and have a completely different, defined meaning. There, the word "injuries" as used in Sch 5 must be construed as referring to injurious events such as a blow to the face or a blow to the psyche, which may or may not cause a pathological reaction. In my view, therefore, I cannot take cognisance or assign any of the plaintiff's infirmity to his exposure to events at the Granville train disaster. 65Whilst working in the Forensic Ballistics Unit between 6 August 1979 and 16 January 1982, the plaintiff was called to the scene of the homicide of a lady identified as Laurie Jean Gallagher. The plaintiff and the histories all attest to this event occurring in 1981. According to the plaintiff's evidence before me, Miss Gallagher had been killed by a deranged man from New Zealand called Ferguson. The plaintiff told me that Ferguson had strangled the lady, decapitated her and placed the head in the oven of a stove and turned the oven on. The plaintiff described his experience in this event to Dr Diamond as "surreal". The history obtained by Dr Diamond continues thus: "The body was without a head and was lying on the floor. The corpse was stripped so that they could look for knife wounds. A colleague asked him to bag her clothes and while he was putting her clothes in a bag, a large dollop of blood oozed out over his hands. The blood was still fresh. They were attending within hours of her death. He was shocked by what happened. Mr Conway then provided a very graphic description of the discovery of the head of the deceased. The head was cooked in the oven by the murderer. Mr Conway said that he kept seeing the head. He recalls it vividly to this day. In addition to the visual recall, he has recall of the smell of the "cooking". He had frequent flashbacks at the time. Now he has them occasionally. He was the designated colour photographer at the time. Colour photographs considered too vivid to show juries in court at the time." I might observe that they would still be not shown to any jury. The plaintiff could give me further detail of this event, which clearly has stuck in his mind and affected him profoundly. The plaintiff told me that he had forgotten to take his gloves with him and therefore there was no protection for his hands from the blood of the deceased woman, and he had to leave the scene and go to the bathroom and wash his hands to rid himself of the victim's blood. 66The next relevant stressor was the murder of the Daoud family. That occurred shortly after the plaintiff was posted to Campsie. We know that the posting to Campsie occurred on 17 January 1982. The plaintiff told me that the massacre occurred two to three weeks after he went to Campsie. The history of this event recorded by Dr Diamond is this: "He was working in general duties at Campsie where they had attended the same address two weeks previously because of a domestic disturbance. He had instructed the father to leave the premises where he was threatening the wife and the children. A restraining order was taken out against the husband. Later Mr Conway was told by another officer that he had overheard the husband say he would come back and kill them all. He was not told of this at the time. When they were called back to the same property two weeks later, they were directed to the wrong address initially. The killing of the family was happening as they arrived. He recalls it as an awful chaotic experience. They could hear gunshots going off that sounded like champagne corks popping. Three different cars involving six officers attended. He said there were bodies everywhere. There were dead children. A nine-year-old boy called Johnny screamed that 'he is killing everyone'. It was a horrible, volatile and very dangerous situation. There was no organised entry or plan. Some family members were killed by gunshots. Others were taken to with a knife. No-one present had any tactical training. There were blood sprays all over the house. Eventually he found the father shot in the head bleeding profusely from the nose. There was no formal or informal debrief. He felt he knew the family. He was in tears in the interview telling me about this. He described them as 'nice people butchered by this mongrel'. Mr Conway said he felt helpless. He felt that they had saved no-one and that they were useless. He was plagued by 'what if' ruminations. He recalls having trouble getting to sleep. His mind was racing at the time. He was reluctant to respond to radio calls. He said he lost his urge or motivation to act in his role as a police officer. He was troubled by effects that the experience had on him." 67Again, in his oral evidence, Mr Conway could give me further detail than was described by Dr Diamond in his report such as the ages of some of the victims, where they were in the house, in which room of the house and how they had been murdered. The plaintiff also described the noise, the blood running from the murderer/suicide, as like the sound of water running out of a tap. 68The next two relevant events described in the evidence are the motor vehicle accident of 15 September 1982, to which I have already referred and need not consider further. The second motor vehicle accident occurred on 7 November 1984 and again resulted from the plaintiff's running into the back of a stationary vehicle. Again, the injuries appear to only have been orthopaedic and have not caused any ongoing psychiatric problems. 69The next stressor relied upon occurred after the plaintiff's transfer to the TRG. This is generally described in the evidence as occurring in 1985 or 1986, but it may have occurred later. There was a drug raid being organised by the Drug Squad. The plaintiff, as a member of the TRG, was involved in this drug raid. The planning of this operation was poor and the plaintiff described it to Dr Diamond as being "chaotic". The plaintiff was in company with Senior Constable Reardon. They entered the premises in question with loaded shotguns and wearing bulletproof vests. The entry was done by a signal given by a member of the Drug Squad. The entry was botched. A shotgun barrel pointed out of the rear of the house and was discharged. It struck Senior Constable Reardon's thumb, which was but for a sliver of tissue, completely blown off. The senior constable was saved from a more serious injury by his bulletproof vest. 70The plaintiff's response was immediately to return fire. He did so, but missed. That was most fortunate because the person at whom he aimed, the person who shot Senior Constable Reardon, was in fact Senior Constable Curzon. Another policeman also fired a shot towards Senior Constable Curzon that, fortunately for Senior Constable Curzon, also missed. The mistake clearly was soon detected. The plaintiff told me that he was shaking so badly after this event that it took him three attempts to unload Senior Constable Reardon's shotgun. 71The history obtained by Dr Diamond continues thus: "He was severely affected by the experience. It affected him in a number of ways. He was preoccupied with thoughts about what happened. He kept thinking that he could have killed a fellow officer with his shot. He thought that he could be killed. He was phobic of shotguns for at least six months. He lost confidence in his ability. He experienced a cluster of symptoms of hyperarousal, flashbacks and ruminations about what happened. On this occasion he was debriefed by a psychiatrist. He saw him twice. He was further affected by the event. He was vilified by his colleagues. He was told that people did not want to work with him because "I had panicked". It affected his confidence. In the course of his ongoing work as a member of the TRG, he was affected by that experience. He kept going because he was keen to redeem himself. The effects of that incident however were never properly resolved." 72According to the history obtained by Dr Diamond, the plaintiff eventually lost confidence working in the TRG and took the opportunity to transfer to becoming a weapons instructor. According to the history of Dr Diamond, the occasion when the plaintiff finally lost confidence involved an incident with a man with a rifle, and the plaintiff lost his confidence when he realised that he could have been killed at any time. That is an event which the plaintiff described in his evidence to me as his being first in a forced entry of a house where the offender was thought to be armed and was. Fortunately for the plaintiff, the offender had his loaded weapon on the ground beside him as he was sitting in a chair and the plaintiff and his colleagues managed to stop the offender picking up the rifle in order that the offender could not threaten the plaintiff or his colleagues with the weapon. However, there was a confrontation in which the plaintiff realised he could have been killed. That was the major reason for moving to the position of weapons instructor. 73His period as weapons instructor included a major event in the New South Wales Police Force history. That was the decision to obtain new firearms, to move from Smith and Wesson revolvers to Glock pistols. There was a committee of three. It included the plaintiff, who was a sergeant, then Senior Constable McGilchrist, who worked at the New South Wales Police Armoury, and a public servant called Dennis Strickland who, like a good bureaucrat, was in charge of overseeing the expenditure of money. 74The plaintiff had to write a protocol for the testing of alternative weapons. The alternative weapons then had to be tested, a decision made as to which was the most desirable weapon for use in the New South Wales Police, and then letting the politicians make the final decision. Once the decision was made, the plaintiff had to write the training manuals for use of the weapon and then train the trainers who in fact trained the members of the police force. The plaintiff referred to that in his oral evidence as an $11 million project. If anyone wants to know any more abut the introduction of Glock pistols, they are invited to read McGilchrist v COP [2010] NSWDC 324, 8 DDCR 499. 75The history obtained by Dr Diamond of this episode in the plaintiff's life is this: "He undertook major projects such as investigating the appropriateness of the transfer from revolvers to the semi-automatic Glock pistol in the NSW Police. He was one of three involved with the whole project of researching and writing the specification and training manuals for the weapon. It occurred at a time when there was rigorous scrutiny from media and public about the appropriateness of police carrying a semi-automatic weapon. The arguments against this were strong. He felt under a lot of pressure to get it right. He said he did a good job of this but on completion of the task he was worn out and exhausted. Eventually he saw his general practitioner. This was over 15 years ago possibly. He began treatment with antidepressant, Zoloft. This was later changed to Cipramil and he has maintained treatment with medication until the present. He now takes 40mg of Cipramil." 76Since then the plaintiff was moved to Lexapro and more recently he has been prescribed another medication, but the problems the plaintiff has with his short term memory are such that he couldn't remember the name of the new medication. In addition to those stressors, which were the subject of histories to doctors, and the subject of formal pleading, the plaintiff told me of some other events including, for example, his involvement in the 1981 Woolworths bombing, that is, the bombing of the Woolworths store at Town Hall Railway Station and of the attempted disarming of an IED placed in a dolphin torch on the running board of a large vehicle. That needed to be done when the plaintiff was in the Ballistics Unit and the plaintiff pointed out that he could have been killed by that. However, he did not make any complaint of it to any of the medical practitioners because clearly it must not have loomed large in his psychiatric history, but it is indicative of a risk to which the plaintiff was exposed in the course of his service as a New South Wales Police Officer. 77On one view of it, the genesis of the plaintiff's psychiatric illness might be thought to be the Granville Train disaster and clearly such was the evidence in Dive v COP. However, there is no evidence to that effect here. But the evidence suggests that although that might be the case, had the plaintiff not been exposed to subsequent psychiatric stressors he would not have developed the adjustment disorder certified by PSAC. In other words, if after the Granville Train disaster the plaintiff maintained guard duty at Government House, he probably would never have developed any psychiatric condition at all. The opinion of Dr Diamond in this regard is this: "From my above comments, it is clear that Mr Conway has experienced a primary cause of his chronic Post-Traumatic Stress Disorder relatively early in his police career. He retained symptoms that result from his attendance at the Granville train crash in [1977]. It is not unusual after a primary event such as that for individuals involved in operational policing to suffer cumulative stressors that add to the severity and complexity of an already existing Post-Traumatic Stress Disorder. This occurred in the case of Mr Conway. His ongoing experiences within the workplace compounded his illness. The respite that he gained when he left the dangerous and directly life-threatening environment of working within the, now disbanded, Tactical Response Group was partially helpfully initially. This however was replaced by other stress that followed from his experience as a senior weapons instructor. Within the policing environment, he was never able to fully recover and relied on elaborate avoidance behaviours and pure stoicism to keep going. Eventually this capacity to cope was exhausted despite the fact that he was being treated for about 15 years with maintenance antidepressant medication. It is not unusual for police officers with longstanding chronic Post-Traumatic Stress Disorder to reach a point where they are simply no longer able to cope with the responsibilities and cues that are expected within the policing environment. This is what occurred with Mr Conway." 78I accept that the plaintiff suffers from the certified psychiatric illness and that it was caused, in part, because the plaintiff was exposed to risks to which members of the general workforce would not normally be required to be exposed in the course of their employment. 79The first, clearly, is the scene of the homicide of Laurie Jean Gallagher. Indeed, some aspects of that remind one of the factual background described in Walsh v SASTC. I accept that the attendance at the Daoud family massacre also exposed the plaintiff to risk to which members of the general workforce are not normally exposed. I accept that the plaintiff was exposed to the risk of being shot by other police officers by bungled police operations, and that such is not a risk to which members of the ordinary workforce are normally exposed. Not only was he himself exposed to the risk of being shot, he was at the risk of having his work mates shot beside him, and that actually happened. I accept that the plaintiff was exposed to the risk of being shot at by the man with the firearm on the ground next to his chair, which caused the plaintiff to decompensate and to decide to leave the TRG. 80All of those have some part to play in the development of the plaintiff's certified psychiatric condition. The question is, what is the extent of that contribution? I do not rate the exposure to the Granville train disaster greatly because if the plaintiff had not been exposed to subsequent traumata he may have never developed PTSD or an adjustment disorder at all. Indeed, it is hard to accept that exposure to an event on 18 January 1977 might cause a total incapacity for work commencing in 2007, some 30 years later. However, the recent decision of Page v COP (No 2) [2012] NSWDC 137 may suggest otherwise. 81However, it is clear from the opinion expressed by Dr Diamond that the plaintiff's extremely hard work as a weapons instructor, in particular his involvement in what I can refer to as the Glock committee, caused him considerable stress and strain, and must have contributed to his chronic adjustment disorder. The problem is that stress and strain of work are very common in all areas of the workforce, in particular, the public service, and not just the higher bureaucracy, but the lower bureaucracy, amongst school teachers, and amongst company executives and all the way down to low level management in factories and shops. Work-related stress is almost ubiquitous, and immediately prior to the abolition of the Compensation Court, "stress" would have been at least half, if not more, of the work of that court. I therefore cannot find that the plaintiff's involvement and his working connection with the introduction of the Glock pistol was a relevant "special risk". 82Clearly, relying upon the methodology urged upon me by the defendant, which I accept, I accept that there is "available", if I may use that adjective, 7.5% that might be attributed to the psychiatric condition, if one attributes half to all the other conditions. Unfortunately there is no formula that can be readily used. Much results from the impression of the evidence before the Court that the Court accepts. As Judge Truss pointed out in Byrne v SASTC at [29]: "The allowance is required to be commensurate with the risks which were causative. The risks were causative only in relation to one of the infirmities". 83Here, I have found a percentage referable to the risk of the industrial deafness. The question is to what extent should I weight the plaintiff's exposure to risks as the ballistics expert to his work in general duties at Campsie and to his work in the TRG? It must be recalled that it was the work of the TRG which forced the plaintiff to consider an alternative career path as a weapons trainer, which would suggest that that was the greatest stressor to which he was exposed: the shooting of Senior Constable Reardon and the final event which might be thought to be the straw that broke the camel's back and caused the plaintiff to change his job path from TRG to weapons training should be considered, in my view, highly. 84Doing the best I can, I believe that I should assign to that part of the plaintiff's psychiatric condition which was caused by his being exposed to risks to which members of the general workforce would not normally be required to be exposed, 4.5%. The plaintiff is therefore entitled to a pension increase of 5% above 85%, such that the plaintiff's HOD pension should be 90% of the salary of his office. The defendant advised me that there was a clear error in its decision of 24 November 2011 (exhibit J) and that the defendant backdated the plaintiff's initial pension increase to the date of the commencement of his pension on 28 November 2008, and that the defendant would commence the plaintiff's increased pension from 28 November 2008. 85Now, do you want to prepare a short minute? Ower: If your Honour was simply to set aside the decision of the defendant and replace it with 90%. His Honour: For those reasons 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. 86There's no problem about costs, is there? Ower: No your Honour. His Honour: I order that the defendant pay the plaintiff's costs. 87Can I hazard the observation that here is a man who was 33 years in the Force; no suggestion he ever got into trouble for anything; Police Medal, National Medal with Clasps and Bars; no problem with alcohol, smoking, drinking, illicit drugs; no problem with the law and no problem with his employment; no problem with his family, happily married, and he may get less than some of these other chaps because he didn't immediately go off work after some stressor. It works capriciously, does it not? Ower: It does sometimes your Honour. Edwards: Thank you your Honour for hearing me on that point. ********** 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: 08 February 2013