District Court New South Wales Medium Neutral Citation: Carswell v SAS Trustee Corporation [2014] NSWDC 47 Hearing dates: 17-19 February 2014 Decision date: 20 February 2014 Before: Neilson DCJ Decision: Decision of the defendant made 23 April 2013 set aside. Plaintiff's annual superannuation allowance increased to 73.36% Catchwords: POLICE SUPERANNUATION - Hurt on duty - Detective Sergeant/Acting Inspector - Whether he would have joined Federal Police - Pension increase backdated to one year prior to application for increase Legislation Cited: Police Regulation (Superannuation) Act 1906 Australian Federal Police Act 1979 (Cth) Cases Cited: Lembcke v SASTC (2003) 25 NSWCCR 464 Pinkerton v SASTC (unreported, 10 August 2007, Truss DCJ, RJ00319/06) Tanks v SASTC (unreported, 1 September 2009, Neilson DCJ RJ 00894/03) Walsh v SASTC (unreported, 8 April 2010, Quirk DCJ, RJ00146/09) Category: Principal judgment Parties: Rickard Nevin Carswell SAS Trustee Corporation Representation: M Hammond (Plaintiff) T Ower (Defendant) Kim Smith & Associates Rod Blume File Number(s): RJ209/13 Publication restriction: No Judgment 1HIS HONOUR: The plaintiff, Mr Rickard Nevin Carswell is a former member of the New South Wales Police. The plaintiff was attested as a probationary constable of police on 18 September 1978 and thereupon became a contributor to the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906. On 18 December 2001 the Police Superannuation Advisory Committee (PSAC) established under the Act certified that the plaintiff was incapable of discharging the duties of his office on account of "lumbar degenerative disease." On 20 December 2001 the Commissioner of Police by his delegate determined that the suffering by the plaintiff of the lumbar degenerative disease was caused by his having been hurt on duty on 3 January 1991 and 1 March 1999. As a result of that certification the plaintiff was medically discharged from the New South Wales Police on 4 January 2002. He was clearly entitled to a hurt-on-duty pension and that hurt-on-duty pension commenced to be paid to the plaintiff. 2The last substantive rank that the plaintiff attained was that of detective sergeant, however, according to official records the plaintiff transferred back to uniform duties on 1 January 1998 and thereafter had the rank of acting inspector performing general duty work. 3The plaintiff was born on 29 July 1959. He joined the New South Wales Police as a junior trainee on 16 January 1978 at the age of 19, having obtained the Higher School Certificate. He became a trainee on 3 July 1978 and as I have earlier mentioned was attested as a probationary constable of police on 18 September 1978. 4The plaintiff was first attached to the Bankstown Police Station where he performed general duties. However, prior to leaving Bankstown the plaintiff was put on the "A list", meaning he was put into plain clothes with the idea that he become a detective. The plaintiff was in plain clothes at the time that he was transferred to Flemington Police Station on 8 September 1981. On 24 September 1983 he was transferred to Redfern and whilst he was at Redfern he was formally designated as a detective. On 18 September 1983 he reached the rank of detective senior constable. On 2 December 1984 the plaintiff was transferred to Hornsby where he continued to perform criminal investigation work. On 1 December 1985 he was transferred to the CIB where he was a member of the Pillage Unit, essentially doing investigative work for the Water Police. During his time with the CIB the plaintiff was seconded to three separate squads, one of which was the Homicide Squad. On 1 September 1986 the plaintiff was transferred to Bowral and did criminal investigative work there. On 28 July 1988 the plaintiff was transferred to Bateman's Bay where he was the senior of the three detectives attached to that station. Some time prior to the official transfer date of 6 January 1991 the plaintiff was transferred to Queanbeyan. 5The plaintiff's first injury occurred on 3 January 1991. The plaintiff was a passenger in a New South Wales Police car. The plaintiff was the front seat passenger. The car was in pursuit of a suspected drug dealer who was distributing drugs in both the ACT and Queanbeyan. This offender was the subject of a joint investigation by the ACT Police and the New South Wales Police. The vehicle crossed the border from the ACT to New South Wales near the Oaks Estate by going under the bridge that carries the railway line over the road into Queanbeyan from the north. The offender or persons within the offender's vehicle were throwing drugs out of the windows of the car that was being pursued. This it, would appear, was a high-speed police chase. The offender turned hard to the left, a manoeuvre which could not be matched by the driver of the police car in which the plaintiff was a passenger and the police car collided with a tree. The plaintiff was thrown forward, his head went through the windscreen and his knees collided with the glove box of the car. 6Exhibit B is an occurrence pad entry concerning this event. The entry concerning the plaintiff says this: "Detective Carswell was examined and found to have bruising and swelling to both knees, soreness and muscular strain to both shoulders and back, lacerations to the top of his head and small cuts to both hands and up the left arm. He was treated for these injuries." The entry goes on to point out the property damage that the plaintiff had suffered. It is clear from the right-hand side of the occurrence pad entry that a P124A and B were both submitted at the time. There is in evidence another P124 concerning this event but that was a further one made on 18 January 2000. The plaintiff was treated for his injuries at the Queanbeyan Hospital. The plaintiff told me that he had soreness in lower back for a number of weeks following this event. 7On 1 May 1993 the plaintiff obtained a Diploma in Criminology from the University of Sydney Law School. To obtain that diploma the plaintiff had studied part-time for three years. Such qualifications are important to the exercise which I now must undertake. 8On 24 June 1993 the plaintiff was involved in another event which led to an injury, inter alia, to his back. However, it was not the subject of any certification by the Commissioner of Police. Why this event was overlooked I know not. However, it should be considered as a demonstration of the sort of things which a detective must undertake in the course of his service. The occurrence pad entry for this event is exhibit D. The occurrence pad entry has been bowdlerised by removing the names of other persons involved: "About 10.15pm on 23/6/93 police were required to attend Jewels Food Store, Queanbeyan, in relation to an armed robbery in progress. As a result police arrested two offenders. A third offender was believed to still be inside the building. A search was carried out. Detective Carswell [and two others] were searching an area near the loading bay. This area led to an upstairs section where there were a number of generators. This then led to an area above the main section of the supermarket. There was a suspension type roof. Detective Carswell then made his way onto this area and was about to be followed by [another police officer] when the roof section on which he was standing gave way and he fell some eight metres to the floor below. This fall was eased somewhat by a number of electrical wires. This incident was witnessed by [another officer]. A section of the roof was damaged as a result and at the time of the fall Detective Carswell was carrying a departmental Maglite re-chargeable torch and a Bendix-King portable police radio; these items were both damaged beyond working condition. Personal clothing also damaged. INJURIES Bruising to the head, whip marks to the back of both legs (from the wires) and a sore back. Detective Carswell was able to continue his duties despite the injuries sustained." It may be the last notation that caused the Commissioner of Police not to insert this occurrence in the injuries which the Commissioner of Police thought caused the plaintiff's specified infirmity of body. 9On 8 December 1994 the plaintiff was transferred to Deniliquin. At the time of his transfer he was appointed a detective sergeant. He was the Head of Detectives in the Deniliquin LAC. That LAC covered the New South Wales part of the lower Murray Valley; meaning below that area of the Murray Valley covered by the Albury LAC. It included the next major New South Wales Police Station at Dareton and went as far as the town of Wentworth, at the confluence of the Darling and Murray Rivers, opposite the Victorian city of Echuca. 10There were six detectives stationed at Deniliquin and four detectives stationed at Dareton. Accordingly the plaintiff was the leader of a team of ten detectives. As the plaintiff put it in his evidence he was "running the shop" as far as criminal investigation was concerned along much of the length of the Murray River within this State. Necessarily he had to work with and liaise with colleagues from the State of Victoria and also from the State of South Australia. The plaintiff told me that that increased both his skills as a detective and his experience. 11The plaintiff, as I said earlier, transferred to general duties in January 1998. That was at the request of his superior, Superintendent Christopher Morley. Superintendent Morley was the head of the Deniliquin LAC. He became the head of the Deniliquin LAC he told me in either 1997 or 1998, but bearing in mind that the formal date for the plaintiff's transfer back to general duties it was probably 1997. 12Mr Morley, who is now retired, gave evidence in the plaintiff's case. He clearly was impressed by the plaintiff. He told me that the plaintiff had good people skills, had very good knowledge of his job, knew all the appropriate police systems, was a good writer of reports and was meticulous in his work. Superintendent Morley wanted the plaintiff to be a duty officer, that is, be an acting inspector and that was the reason that the plaintiff was transferred back to general duties. The plaintiff was to be an acting inspector, a duty officer, until shortly after his Olympic service. As a duty officer the plaintiff essentially was running the whole of the Deniliquin LAC during the shift on which he was the duty officer. It is clear that then Superintendent Morley was very impressed by the plaintiff's work. Mr Morley expressed the view that had the plaintiff remained in the New South Wales Police he would have probably become a superintendent of police, if not an assistant commissioner. 13On 1 March 1999 the plaintiff was injured on a periodic journey between his place of abode and his place of employment. 1 March 1999 was a Monday. The plaintiff was riding a motorcycle from his police residence in Deniliquin to the Deniliquin Police Station. However, a local nurse known to the plaintiff failed to give way to him at an intersection, knocking him from his bike. The plaintiff in his P124 for this event laconically pointed out that the other driver was given a traffic infringement notice by the plaintiff. The plaintiff sustained broken ribs, a severe abrasion to his left arm, swelling and abrasion to his left hip and also a problem with his left knee. Although the plaintiff's back is not mentioned in the P124 it is unsurprising that the plaintiff would have had back pain as a result of that accident. The plaintiff needed to be taken by ambulance to the Deniliquin Hospital. Unfortunately the plaintiff could not remember how long it was necessary for him to take off work. 14In a report bearing date 7 January 2000, which became exhibit 5, the plaintiff stated that since 1 March 1999 he has suffered intermittent lower back pain. The report of 7 January, as well as referring to the event of 1 March 1999, also referred to the events of 3 January 1991 and 23 June 1993. After reciting the plaintiff's suffering intermittent lower back pain since March 1991 the report continues thus: "I believe the above circumstances outline my current medical situation and that a number of factors have contributed to the aggravation of a pre-existing hurt-on-duty injury. I am compiling this report on the basis that I have made arrangements to see my local medical practitioner, Dr Taras Mikulin, of George Street, Deniliquin. I have mentioned to him previously my medical history. As a result of those previous conversations he has indicated that if the condition continues to see him about it and due to the fact that the X-rays and MRI are now six years old I will probably be required to have further of same. I am submitting this report to inform the appropriate officers and units of the current position with my medical condition and possibilities of medical expenses, which will be given to the Administration Office of the Deniliquin Local Area Command." A few days later, on 18 January 2000, the plaintiff submitted a P454, a "Register of Injuries," referring to the event of 3 January 1991 and claiming a recurrence. 15In the year 2000 the plaintiff, like many of his colleagues, was on active duty at the Sydney Olympic Games. He was working at pavilions where certain ballgames were being played, those buildings now being the exhibition buildings at the Flemington Olympic Complex. The plaintiff was in charge of 30 other police. The plaintiff was also in charge of security for both the Australian and United States male and female basketball teams. The plaintiff was working for 12 to 14 hours per day. He clearly was a very busy man. Importantly he had to wear full uniform, including his appointments, on his police utility belt. Those appointments are clearly things such as handcuffs, baton and pistol. 16After his Olympic service the plaintiff returned to Deniliquin but still was having problems performing work. Perhaps as a result of the report of 7 January 2000, or perhaps after his Olympic service - the evidence is not clear to me - the plaintiff was appointed the Education and Development Officer (EDO) for the Deniliquin LAC, still with the rank of acting inspector. The transfer to EDO was to permit the plaintiff essentially to do sedentary work in the police station where he did not need to wear his appointments throughout a shift. He would need to wear his appointments if he left the police station but within the police station that was not necessary. However, even work as the EDO required the plaintiff to travel from one police station to another and around the LAC and when so engaged the plaintiff would clearly had to wear full uniform including his appointments. 17Eventually the plaintiff submitted an application for medical discharge. It is exhibit G. It bears date 13 December 2000. Part of the narrative given by the plaintiff in that application is this: "In early 2000 it was believed the chronic lumbar back injury was being aggravated by the wearing of the police utility belt. This became even more evident after attendance at the Olympics. Since that time the wearing of any added weight aggravates my condition. I am also concerned with my safety and that of my fellow officers if to work as first response officer. The entire situation involving my injured back and the impact it has had on my career and future has depressed me. The pain and discomfort has led to the belief that I have no career or future within this service. I have examined a number of options and have not been able to find another position to suit my training, education and career experience." 18The plaintiff's application for a medical discharge was supported by a report from the acting superintendent and commander of the Deniliquin LAC, Mr Comins. It is this: "The attached application together with the report of Dr Mikulin indicate that the predominant lower back condition being experienced by Sergeant Carswell is a persistent injury that is aggravated by the wearing of the police service utility belt used to carry police arms and appointments. This has become evident to me from his recent experience whilst performing duties at the Sydney Olympics. Sergeant Carswell occupies a general duty supervisor's position at Deniliquin of which there are only four. His inability to perform fully operational duties is impacting in a negative sense in the supervision of staff and the day-to-day operation of this command. In an attempt to place Sergeant Carswell in a position where he had minimal need to wear his appointments, he was placed in the position of [EDO] and more recently in the position of Rosters. These unfortunately have not improved the situation physically with Sergeant Carswell and realistically this command is not benefiting from the displacement of a Supervisor from the frontline at Deniliquin. I am satisfied that the injury to Sergeant Carswell is genuine and following a recent conversation with the PMO [police medical officer], there was no likelihood that he will ever return to full duties. In this case, I fully support the medical discharge of Sergeant Carswell as a matter [of] urgency, to allow this command to function with its full complement of operational supervisors." It does not appear to have been considered at that time finding a position for the plaintiff of an administrative nature, perhaps in Sydney, or deciding whether the plaintiff ought to be transferred away from Deniliquin. It is unfortunate that as a result of the plaintiff's being medically discharged his experience and service has been lost to the New South Wales community. 19As I earlier mentioned, the plaintiff was certified to be unable to discharge the duties of his office by PSAC on 18 December 2001. On the following day the defendant wrote to the plaintiff pointing out what PSAC had determined and pointing out that the defendant had asked the Commissioner of Police to decide whether the suffering by the plaintiff of the certified infirmity was caused by his having been hurt on duty. However, whether he was hurt on duty or not the plaintiff was still entitled to some form of police pension and in the letter of 19 December 2001 the defendant sent to the plaintiff a tax file number declaration which the plaintiff completed on 27 December 2001 and returned to the defendant. The document clearly indicates that as far as the plaintiff was concerned his major source of income was to be his police pension. In the meantime, however, the Commissioner of Police had determined that the suffering by the plaintiff of the certified infirmity was caused by his having been hurt on duty. 20On 18 January 2002 the plaintiff wrote to the defendant its standard letter advising of the determination of PSAC and the determination of the Commissioner of Police and advising the plaintiff that his pension entitlement was 72.75% of the salary of his office. That is the amount of pension prescribed by s 10(1A)(a) of the Act. On the second page of the letter the plaintiff's attention was drawn to the other provisions of s 10(1A), in particular the provisions which enable him to apply for increased pension benefits. After setting out the subsection the letter continues thus: "Should you desire to lodge a claim for payment of additional pension as set out in s 10(1A), it will be necessary for you to submit a claim for increased benefits in writing, supported by current specialist medical evidence covering the following questions: If, in the specialist's opinion, you are precluded from performing some types of employment activities, is it also his opinion that you are capable of performing some work in an open labour market situation? What types of employment activity would he consider to be within your capability? The types of work which you would be incapable of performing, having regard to your infirmity? Would it be reasonable to expect further treatment to improve your condition?" The letter goes on to refer to the ability to seek a commutation in whole or in part of the plaintiff's superannuation entitlement. 21That which I am now required to determine is whether the plaintiff is entitled to an increased pension pursuant to s 10(1A)(b), of the Act. The plaintiff did not apply for an increased pension shortly after receiving the defendant's letter of 18 January 2002 but in fact delayed for over a decade. The plaintiff's application for increased pension bears date 20 July 2012. 22 At the time the plaintiff was medically discharged his marriage broke down. I understand that the plaintiff has a 16 year old daughter as a result of that marriage who lives with her mother on the Central Coast, but with whom the plaintiff has regular contact. Following upon the plaintiff's medical discharge he obviously lost his police accommodation at Deniliquin. The plaintiff moved to Queanbeyan where his parents were living following his father's retirement from the New South Wales Police. The plaintiff has ever since lived either in Queanbeyan or Canberra. 23In early 2002 the plaintiff obtained a private inquiry agent's licence and set himself up as a private inquiry agent. He was working for another gentleman who had a contract with the ACT Government Solicitor making inquiries into allegations of medical negligence against the ACT Health Service/Authority/Department. In essence it appears to have been into allegations of negligence committed in the ACT hospital system. For the first two or three months the plaintiff was very busy carrying out such inquiries. All told, he was to carry on work as a private inquiry agent for between two and three years. However, after the initial two or three months the work was intermittent. That was because the ACT Government Solicitor put the private inquiry agent work out to tender and a panel of agents was appointed. 24The plaintiff had some difficulty doing this work because of his back. Often medical practitioners and nurses had left the ACT and moved either into New South Wales or to other states of the Commonwealth and the plaintiff found it necessary to travel often to make inquiries and prolonged sitting in his motor vehicle caused an increase of symptoms in his lower back. However, the plaintiff managed to learn to accommodate his posture and movements and lifestyle to the fact that he had a bad back. 25The plaintiff then found work with Foxtel in the ACT. Because of his police background and accomplishments, the plaintiff was not only a salesman for Foxtel within the ACT but also became training manager for other salesmen and in addition to earning his own commissions earned part of the commissions that were payable to those whom he had trained. Sales were effected door-to-door or through kiosks in shopping malls. According to a history obtained by Dr Geoffrey Stubbs the plaintiff was "ACT Territory Manager" for Foxtel. The plaintiff did this work for about three years but stopped it in probably 2005. 26The plaintiff told Dr Stubbs, and the plaintiff told me, that essentially he gave this work up because his knees started to play up on him. The plaintiff told me of increasing discomfort and pain in his knees and indeed of pain in his knees coming on with changes in weather, which he could measure by the barometer. Dr Stubbs also took a history of the plaintiff's giving up work with Foxtel because of progressive trouble he was having with his knees but the plaintiff made it clear that there were other things involved in making the decision to give up the Foxtel job. One was the need to find work with greater security and another was because of lifestyle. The job with Foxtel caused the plaintiff to work from midday to either 9pm or 10pm and that was not particularly convenient for a man who had found a new partner and had two young children. The plaintiff told me that his sons are currently aged ten years and seven years. 27The plaintiff then worked as a taxi driver for three months. He accepted that that was a very poor career choice. He worked 36 hours per week but was working on Tuesday, Friday and Saturday nights from the commencement of the evening shift until 6am the following morning. The plaintiff then found work with what has been described by Ms Churches as, "Skyline Tree Services/Discount Tree Services," as a manager. This was a business that was owned by the plaintiff's brother-in-law. Essentially the plaintiff was coordinating the activities of four arborists. The plaintiff was working a basic 15-20 hours per week but would be much busier if there was an increased call for the services of arborists such as after a severe wind storm had struck Canberra. The plaintiff left that job because he needed to find a job with a greater income because he had to support his partner, whom he described as his wife, and who, at the time he left this job, was pregnant with their second child. 28The plaintiff joined the Australian Public Service in 2007. The plaintiff remains in the employ of the Australian government. From May 2007 for two years the plaintiff was working for the Child Support Agency as a fraud investigation officer. The plaintiff was then seconded to Comcare, which administers worker's compensation legislation applicable to Commonwealth public servants. The plaintiff went there to help prevent fraud and to detect fraud. The plaintiff went there at the EL1 level, being the first level of the executive of the Australian public service and according to the history obtained by Ms Churches the plaintiff's title was "Assistant Director." The plaintiff said that his work was purely office work. Ms Churches summed-up the work that the plaintiff did for Comcare thus: "Identification of areas of concern, investigations into fraud and criminal activity, evidence handling and storing, liaising with other agencies, preparation of briefs and submissions to Commonwealth Director of Public Prosecutions and policy and procedure development." The plaintiff told me that during his time with Comcare he detected 30 instances of fraudulent activity which ought be prosecuted but that the Chief Executive of Comcare decided not to proceed with that in order to save the reputation of the agency. 29In 2011, after 18 months with Comcare, the plaintiff went to work for the Australian Competition and Consumer Commission (ACCC). The plaintiff's work there was as an investigator into fraud and criminal activity essentially carried out by cartels of companies. The plaintiff then, after 12 months with the ACCC, transferred to what was then called the Department of Health and Ageing but is now merely known as the Department of Health. The plaintiff is essentially a fraud investigator. The plaintiff told me that at the time that he was transferred to this department they had lost all their investigation capacity and he was sent to this department to run their investigation section. The plaintiff has been there since October or November 2012. 30At the time the plaintiff went to work for this department the plaintiff was at the Australian Public Service level 6 and the salary of his office was; either $86,529 per annum or $87,155 per annum. At the current time the plaintiff's salary is $86, 943 per annum or $87,155 per annum. In rough terms one could say it is $87,000 per annum. 31Six months after the plaintiff joined the Australian Public Service he commenced to "buy" additional annual leave. This practice in the Australian Public Service is described in exhibit 6, which relates to the Australian Federal Police, as "an option to purchase additional leave." Initially the plaintiff was purchasing an extra four weeks annual leave but since he joined his current employer, the Department of Health and Ageing, he increased the amount of additional leave which he is purchasing to five weeks. The plaintiff told me that in the Australian Public Service he is entitled to four weeks annual leave, that it is compulsory to take leave between Christmas and New Year, so effectively that means that there is five weeks annual leave and with the further five weeks that he now has, all told, ten weeks annual leave. 32The plaintiff's wife currently works four days per week. She has a responsible career. The plaintiff told me that he takes two weeks annual leave during the Christmas holiday period and one week's leave in each of the other periods of school holidays; that is, those at Easter, in July and in October. All told five weeks of his annual leave is seen to be necessary for the care of his children. For example, during the mid-year school holidays while the plaintiff takes one week of annual leave his wife also takes one week of annual leave so that during one week of each two week period the plaintiff cares for his sons and during the other week of the school holiday period his partner cares for their sons. The plaintiff told me that he takes the remaining five weeks annual leave in the winter months because that is time when his symptoms are most evident or have the potential to become more evident. 33In addition to the work which he has actually done since leaving the New South Wales Police the plaintiff has applied for many other jobs. A large number of them were with Commonwealth government agencies or departments. In December of 2001 he applied to join the Australian Quarantine and Inspection Service. In March 2002 he applied to join the ACT Department of Fair Trading. In December 2003 he applied for a job with the Royal Canberra Golf Club. In September 2004 he applied to the Commonwealth Department of Agriculture, Fisheries and Forestry for an investigative role. In November 2004 he applied to Australia Post for work. In January 2005 he applied to Thrifty Car Rentals for work. In June 2006 he applied to the Australian Federal Police, not to become a member of the Australian Federal Police, but as a administrative employee essentially listening in to authorised phone tapping operations and making synopses of the intelligence gathered through such intercepts. The plaintiff was unsuccessful in that application. In August 2005 the plaintiff applied for employment with Quest Employment but I do not know for what particular job he applied. In September 2005 he made an application for work with Comcare but was then unsuccessful. In the same month he applied to the Embassy of Japan for a job as a chauffeur but was unsuccessful. In December 2005 he again applied to the Commonwealth Fisheries Department for work but was unsuccessful and also to Customs but was unsuccessful and in February 2006 applied to join Centrelink unsuccessfully and then later in February 2006 applied to join the Department of Immigration again without success. In 2006 he also made a number of applications to the Queensland Public Service, again without success. In July 2006 he applied to join the Department of Work Relations but was unsuccessful in that and then, of course, we do know that in May 2007 his application to the Child Support Agency was successful. 34The plaintiff, through his counsel, submits that had the plaintiff not sustained the certified infirmity of lumbar degenerative disease the most likely course that the plaintiff would have adopted on leaving the New South Wales Police would have been to join the Australian Federal Police where he at least would have been a detective sergeant of police and more probably than not a team leader as detective sergeant. 35The evidence before me tells me that the plaintiff would probably be earning as a detective sergeant in the AFP $97,414 per annum plus an allowance equivalent to 22% of that salary. In rough terms at the current time that would amount to about $115,900 per annum. The plaintiff asks me to consider that amount as what he would probably be earning outside the New South Wales Police uninjured and that what he is currently earning in the Australian Public Service - approximately $87,000 per annum - should be seen, subject to one exception, to which I shall in due course turn, to be the measure of his ability to earn injured in the workforce outside the New South Wales Police and the difference between those two sums is 25% and therefore the plaintiff is entitled to 25% of the 12.25% provided for in s 10(1A)(b) of the Act. 36This brings me to an interesting question of the proper interpretation of the Act to which I shall turn at 10 o'clock tomorrow morning. 37The point which I reached yesterday was the proper interpretation of s 10(1A)(b) of the Act. That paragraph is in the following terms: "except where para (c) applies, an additional amount that is: (i) not more than 12.25 per cent of the member's attributed salary of office, and (ii) commensurate, in the opinion of STC, with the member's incapacity for work outside the police force, ... Paragraph (c) only applies if the former member of the NSW Police is totally incapacitated, which the current plaintiff clearly is not. The submission put to me on behalf of the defendant is that "work outside the police force" should not include work in some police force other than the NSW Police. 38Mr Ower in part supports his submission by looking to the verbiage of par (c), which refers to "risks to which members of the general workforce would normally not be required to be exposed in the course of their employment." I have held on a number occasions that the words "the general workforce" do not include other emergency services such as the Ambulance Service of New South Wales, rescue services, emergency services and, for example, members of the Defence Force. Mr Ower submits that the words "work outside the police force" should be construed to mean "in the general workforce." There is, however, an impediment to such interpretation. Section 1(2) of the Act provides definitions. The subsection commences thus: "In this Act, except to the extent that the context or subject matter otherwise indicates or requires... The definition of "Police Force" is this: "Police Force means that part of the NSW Police Force which consists of members of the police force within the meaning of this Act." If one imports into par (b) of s 10(1A) that definition - one can see that subpar (ii) should be read as "incapacity for work outside the NSW Police Force." 39The question really is, therefore, whether the "context or subject matter" of s 10(1A)(b) demands a different interpretation for the words "Police Force." In my opinion such is not required when interpreting par (b). It could well have been within Parliament's intention that work in another police force where the standards of fitness, for example, were less demanding would be open to a former member of the NSW Police. Furthermore, if parliament had intended the words "incapacity for work outside the police force" to mean "incapacity for work in the general workforce", Parliament could have said so but it did not. 40I am told, without objection, that in the matter of S J Walsh v SASTC (Quirk DCJ, 8 April 2010, RJ00146/09) her Honour took into account work as a "air marshal" which is a position within the Australian Federal Police, as work which that former member of the police force would have done uninjured and therefore was a proper measure when assessing the amount that was to be allowed under par (b). Mr Ower, who appeared for the defendant in that case, conceded that he did not in that case take the point which he now takes. Accordingly, I believe it is open to the plaintiff to seek to base his case on what he would have earned in the AFP had he left the NSW Police uninjured and sought to join the AFP. 41There is before me some information about the AFP and I have been taken in addresses to the Australian Federal Police Act 1979 (Cth). Exhibit N is a printout from the AFP website. It contains, inter alia, the minimum requirements for all applicants to join the AFP. The minimum requirements are these. "1. Demonstrate a commitment to the AFP's core values of integrity, commitment, excellence, accountability, fairness and trust. 2. You must be an Australian citizen. 3. As part of the application process, candidates will be required to complete an employment suitability questionnaire and provide a copy of their traffic history which can be obtained from the local Motor Registry in your state or territory. The employment suitability questionnaire will be assessed against our published employment character guidelines. 4. Provide a fingerprint sample. 5. Prior to engagement, successful applicants will be required to undertake a security clearance, a standard medical clearance/examination and undertake a test for illicit drugs in accordance with the AFP's Illicit Drug Free Work Force Policy." That is the end of that list. Clearly there is some medical examination to be passed and one would think that, inter alia, it would require fitness for the work in question. 42I turn now to the Australian Federal Police Act 1979 (the AFP Act). Section 3A provides an overview of the Act. Subsection (1) tells me that Div 1 of Pt II of the Act provides that the AFP consists of a Commissioner of Police, one or more Deputy Commissioners of Police, AFP Employees, special members and special protective service officers. Subsection (2) tells me that the Commissioner and Deputy Commissioners are appointed by the Governor General. Subsection (3) tells me that the Commissioner may engage persons as AFP employees. After that subs there is a heading "Members of the Australian Federal Police." Subsection (4) is in the following terms: "The Commissioner and any Deputy Commissioner are members of the Australian Federal Police. Under Div 2 of Pt IV, the Commissioner may declare AFP employees to be members and certain members may be declared to be commissioned police officers." 43Under Div 1 of Pt II, the members provide police services and that division also deals with the powers of members. Subsections (5), (5A) and (5B) point me to the provisions which enable the Commissioner of the AFP to appoint persons as special members, as protective service officers and special protective service officers. There is a clear differentiation in the Act to AFP employees and members of the AFP. Not all employees of the AFP are members of the AFP. 44It is provided by s 24(2) par (e) that the engagement of AFP employees is subject to "health clearances." Section 28 provides that the Commissioner of the AFP may at any time, by notice in writing, terminate the employment of an AFP employee. Section 32 is headed "Retirement on invalidity grounds." Subsection (1) is in the following terms: "If the Commissioner is satisfied that an AFP employee should be retired because of physical or mental incapacity, the Commissioner may retire the employee by notice in writing given to the employee." 45Subsection (2) provides that the employee may consent to the Commissioner retiring him or her under subs (1). Subsection (3) provides that if an AFP employee is engaged for a limited period but is not re-engaged and the Commissioner certifies in writing that the person's physical or mental incapacity was the only reason why the person was not so engaged that person is taken for the purposes of the Federal Worker's Compensation legislation to have been retired under the superannuation legislation of the Commonwealth. The remaining provisions of s 32 indicate that where the AFP employee is a member of any of the various Commonwealth superannuation schemes that the employee cannot be retired unless he has been given a certificate of invalidity by the Commonwealth Superannuation Corporation. This is akin to the provisions of the NSW Act. Section 40B provides this: "The Commissioner may, by writing, declare an AFP employee (other than a protective service officer) to be a member of the Australian Federal Police if the Commissioner is satisfied that the employee meets the requirements specified in a determination under s 40C." 46Section 40C is in the following terms: "The Commissioner may, by written determination, specify either or both of the following for the purposes of s 40B: (a) competency requirements; (b) qualification requirements. 47Section 36 provides for the making of undertakings and the swearing of an oath or the making of an affirmation by members and special members and protective service officers of the AFP. There is no requirement that any other AFP employee give any undertaking or swear any oath or make any affirmation. There is a clear distinction between what we would call in New South Wales a public servant employed by the Commissioner of Police and a sworn member of the constabulary. 48I know from exhibit O, the enterprise agreement, that "air marshals" are referred to as "air security officers." Whether the air security officers are members of the AFP or protective service officers, or special protective service officers, I am unaware at the current time. However, the important point to note is that they are AFP employees. It is clear from exhibit O that the enterprise agreement governs the remuneration of all AFP employees, that is, AFP employees who are not members of the AFP as well as members of the AFP. One could, accordingly, without being a member of the AFP, doing, for example, clerical or research work, still be remunerated according to exhibit O. 49Exhibit 6 is a further printout from the AFP website and concerns "pay and conditions." One of the statements contained in it is this: "Lateral transfer recruits joining the AFP from a state or territory police service retain benefits accrued throughout their career (recognised through appropriate remuneration strategies). Previously negotiated salaries are payable from the start of training, within the range $57,105 to $81,647 a year. After successfully completing the training program, the composite allowance will reflect the working pattern of the function to which they are assigned." 50I do know from exhibit 3 that, as at the time that the plaintiff was medically retired from the NSW Police, the salary of his office was $64,960. What that would have been in 2011 or 2012 I do not know but from the beginning of the first full pay period on or after 1 July 2013 a detective sergeant of police with 6 years seniority has a base salary of $96,883, and the base salary for overtime purposes is taken to be $100,742, and that with a loading of 11.5% equivalent to grade 3 special allowance and detective special allowance amounts to $113,572. Which of those three salaries the plaintiff would have been earning had he stayed in the NSW Police is not clear to me. However, it appears to me that had he stayed in the country the plaintiff would probably be earning $113,572. Had the plaintiff reached the rank of superintendent of police, his salary would be in the first year of being a superintendent $163,074, whilst the highest salary payable to a superintendent is after the eighth year of service and that salary is $186,078. It would appear therefore, assuming things worked in the year 2002 as they work at the current time, that the plaintiff's salary as a sergeant of police in New South Wales would have been greater than the range of salaries payable to lateral transfer recruits to the AFP. Currently the maximum is $81,647 and the plaintiff - as a detective sergeant of police, given his seniority, would have been earning at least $96,883 and probably $113,572. 51Evidence was given in the plaintiff's case by Mr Andrew Marsh who is currently a member of the AFP. Between 1989 and 2006 Mr Marsh was a member of the Northern Territory Police. He left the Northern Territory Police and became an employee of the AFP as a "air marshal" which he did for two years. He then sought to become a member of the AFP. He told me that he was a probationary constable for three months then became a constable for six months and after that period was given the rank of sergeant, which I infer from what he told me had been his rank in the Northern Territory Police before joining the AFP to become an air marshal. From his evidence it seems that an air marshal is not a member of the AFP but merely an employee of the AFP. Were it otherwise it would not have been necessary for him to leave the post of air marshal and become a probationary constable and then a constable of police before being appointed sergeant. On his appointment to sergeant Mr Marsh worked in the communications area and after 12 months was deployed to Timor l' Este then returned and worked as a staff officer at the AFP headquarters, then worked as a project officer for the commander of a tactical response group and between March 2013 and January 2014 was deployed to Afghanistan. 52Mr Marsh gave evidence as to how the enterprise agreement, exhibit O, works. He told me that bands 1 to 5 remunerate constables, senior constables and leading senior constables of the AFP and bands 6 to 8 govern the remuneration of sergeants. The enterprise agreement itself differentiates between "hard barriers" and "soft barriers." The hard barriers are between levels 5 and 6; that is the barrier between a leading senior constable and a sergeant and the other hard barrier is between level 7 and 8. Level 8 sergeants are in fact ACT station sergeants and a sergeant in a few other places, in essence, international airports within the Commonwealth of Australia. Mr Marsh himself was at level 7.3 which as at the commencement of the enterprise agreement, 8 March 2012, had a salary of $97,414 and on 8 March 2013 rose to $100,336 and will, on 8 March 2014, rise to $103,848 per annum. 53The question which is more troubling is whether the plaintiff, did he not suffer from lumbar degenerative disease, have joined the AFP. He had certainly been thinking about it prior to his being medically discharged from the NSW Police and after it. The problem is compounded by the fact that the plaintiff has a supervening incapacity which is now troubling him more than his lumbar degenerative disease. It is clear the plaintiff has a problem with each of his knees and one can easily accept that the plaintiff has some form of degenerative disease in his knees. Although the evidence suggests the condition of the plaintiff's right knee may have been caused by his having been hurt on duty when he was a member of the NSW Police, the evidence suggests that the condition of the plaintiff's left knee had its aetiology in a non-compensable event in 1978. Furthermore, I cannot take into account in the current proceedings the condition other than that certified by PSAC and of course PSAC did not consider the question of the plaintiff's right knee as a cause of his incapacity at the time that he sought medical discharge. That is probably because the only condition put forward by the plaintiff at the time was the condition of his lumbar spine. The plaintiff first injured his left knee, as I said, in 1978, in an ice skating accident. 54It is convenient at this time to quickly consider the medical evidence before me as this may assist in the determination of whether the plaintiff would have been accepted into the AFP as either an ordinary employee or as a member. 55The first medical report before me is a radiological report of Dr S Bell to whom the plaintiff had been referred by a Dr R M Bills, a general practitioner. Dr Bills' report bears date 25 August 1993. It is a CT scan of the plaintiff's lumbosacral spine. That showed a small central disc bulge at L4-5 impinging on the thecal sac but not encroaching onto the nerve roots or the foramina. At L5-S1 there was reported to be a broad base posterior disc bulge which did not impinge on either the theca or the nerve roots. On 1 October 1993 the plaintiff was examined by Dr Kretsch, a member of the Australian Sports Medicine Foundation, who was qualified by the NSW Police. Dr Kretsch examined the plaintiff for his back complaint. Dr Kretsch's past medical history is this: "Mr Carswell has had no history of back problems or injury prior to the [MVA] in 1991 and has never required any treatment for his back prior to this current claim. He has not been involved in any significant [MVA] in the past. The patient states that he has been in good general health." Dr Kretsch received no history of any knee complaint. Under the heading "Current status" the doctor recorded that walking caused the plaintiff no problems and that he had no problems or symptoms in relation to his knees. Dr Kretsch considered that the plaintiff had significant internal disc derangement at the L4-5 and L5-S1 levels as a result of the event of 3 January 1991 and that of 22 June 1993. 56It is clear that in 1993 the plaintiff was sent to see Dr Ray Newcombe, a neurosurgeon in Canberra, as there is before me an MRI scan of the lumbosacral spine addressed to Dr Newcombe, bearing date 18 October 1993. That again shows problems at L4-5 and L5-S1, the more significant problem being at L4-5. The MRI suggests that the herniation of the disc at that level was compromising the descending L5 nerve root on the right-hand side. However, as far as the L5-S1 level was concerned the disc was thought to be intact. 57In September 1995 the plaintiff came under the care of Dr Mikulin of Deniliquin. He records that Dr Newcombe had advised the plaintiff to have conservative management of the disc problem at L4-5. The history continues thus: "On 7 September 1995, Mr Carswell presented to the casualty department of the Deniliquin Hospital after he slipped down the steps of the Deniliquin Police Station. He suffered an aversion force and landed heavily on the left knee. The left knee was painful and swollen. There was tenderness over the insertion of the medial collateral ligament of the left knee and flexion was limited to 45 degrees by pain and swelling. A clinical diagnosis of partial tear of the medial collateral ligament of the left knee was made. X-ray of the left knee on the night of the accident showed a left knee effusion and a thin sliver of bone in the middle of the lateral compartment of the left knee consistent with a loose body. Mr Carswell was referred to Mr Kudelka, orthopaedic surgeon, on 13 September 1995. He advised Mr Carswell that evidence of calcification of the lateral meniscus consistent with old injuries to the left knee and more recent ligamentous and capsular injuries to the knee. He recommended conservative therapy with physiotherapy and a non-steroidal anti-inflammatory medication. Mr Carswell's left knee symptoms did not improve and he was referred to Mr McQueen, orthopaedic surgeon. He saw Mr Carswell on 1 November 1995 and recommended arthroscopy. At operation he found that Mr Carswell had extensive, chondral damage to 70% of the surface area of the patella. The rest of the joint appeared normal. Mr McQueen performed chondroplasty. In my opinion this type of damage is of a chronic nature and the fall down the stairs would have exacerbated this damage causing the acute symptoms. Mr McQueen would be able to give a specialist opinion about this injury." Mr Carswell was certified unfit for work from 7 September 1995 to 24 September 1995. 58Dr Mikulin treated the plaintiff following the motorcycle accident on 1 March 1999. He recalls that the plaintiff "made a good recovery following this accident." However, Dr Mikulin went on to say this: "On 24 March 1999 he complained that since the accident [1 March 1999] he had suffered intermittent shooting pains into the right buttock and in the three days prior to being seen had suffered a constant ache in the right buttock and found it difficult to squat. Lumbar unroll was limited to 60 degrees by pain and is tender over the insertion of the quadratus lumborum. Lumbar spine extension, right and left lateral flexion were full. The impression was that Mr Carswell had exacerbated an existing lumbar spine injury. He was advised about posture, avoiding lifting with a flexed lumbar spine and about lumbar spine exercises. X-rays of the lumbar spine showed osteoarthritic changes and narrowing at the L5-S1 intervertebral disc space." 59The plaintiff returned to see Dr Mikulin on 17 January 2000 complaining of pain for two months radiating into his right buttock. The plaintiff attributed that problem to wearing his utility belt, to which I made reference yesterday. The doctor noted that there was a positive sciatic stretch test in both legs and straight leg raising caused pain at 80 degrees. 80 degrees, in essence, should be seen as normal but the complaint of pain appears to have been in the back rather than in the sciatic distribution. 60The plaintiff was referred by Dr Mikulin to a specialist orthopaedic surgeon, Dr Kavar. In a report of 27 March 2000 Dr Kavar expressed the view that the plaintiff had a recurrence of symptomology at the L4/5 disc. Dr Kavar re-examined the plaintiff on 11 February 2000 and noted that there was no neurological deficit. A MRI scan performed on 3 February 2000, according to Dr Kavar, indicated improvement of the previous L4/5 disc bulge and Dr Kavar thought that the disc bulge at L5-S1 was, "about the same." However, as I read the report of the radiologist, Dr Richard Fleming, it seems to me from the verbal description that the problem at L5-S1 was worse because the radiologist refers to a more focal central disc protrusion which protruded into the epidural space between the S1 nerve root sheaves but was not thought to cause any neural compression or displacement. 61The plaintiff saw Dr Mikulin on further occasions in 2000 and again was complaining of lower back pain with pain radiating into the right buttock. It appears that on 11 November 2000 the plaintiff developed a "polyarthropathy" and was unable to work because of an acute illness. The plaintiff was investigated to see whether he had the Ross River virus. Polyarthropathy would indicate pain in all the joints of the body. In a report which clearly was sent to the defendant at the time the plaintiff's application for medical discharge was being considered, Dr Mikulin said this: "In my opinion Mr Carswell suffered cartilaginous injuries to the left knee, while ice skating in Sydney in 1978 and again in the accident in January 1991. He further injured the knee in a fall down the steps of the Deniliquin Police Station in September 1995 and again in a work related accident in March 1999. I would estimate that 50% of the left knee injuries are related to accidents at work." In the same report Dr Mikulin expressed the view that the plaintiff's discal problems were caused by injury of 3 January 1991. Dr Mikulin expressed the view that the plaintiff's lower back condition was caused by the events of 3 January 1991, 24 June 1993 and 1 March 1999. He thought that the plaintiff was unfit to perform police work, "of any nature suitable to his experience and qualifications." 62On 30 May 2000 there was a "workplace assessment" of the plaintiff's workplace by Sue Martin, an occupational therapist. She made recommendations about adjusting, in essence, the place where the plaintiff worked to accommodate for his lower back complaint. A report was made to go to PSAC by a police medical officer, Dr Tom Norris. That deals only with the plaintiff's back condition. Dr Norris said this: "I cannot see Sergeant Carswell ever regaining sufficient fitness because of his back problem to be able to be returned safely to operational duties. I therefore support his application for medical discharge." 63The plaintiff was sent by the defendant or its predecessor to Dr Warwick Huntsdale, an orthopaedic surgeon. Dr Huntsdale examined the plaintiff on 17 September 2001. Dr Huntsdale only took a history of the plaintiff's back condition and only examined the back. There was no particular examination of the knees, although as is normal when examining the back, straight leg raising was performed and that there was testing of power, tone and sensation in the legs. Dr Huntsdale diagnosed lumbar disc disease associated with lumbar degenerative disease and did not think the plaintiff was fit for full operational duties. 64The next medical evidence before me dates to almost five years later, to 24 April 2006. It is a short report from Dr Ross Bills to the NSW Police. In that report Dr Bills said this: "I recall mentioning in earlier correspondence that the natural history of the condition is for the patient to suffer exacerbations, up to four/year, mild, moderate to severe in intensity, lasting a few days to a few weeks. He does seem to be displaying this pattern." 65Dr Bills recommended that the plaintiff seek a physiotherapist for an ongoing exercise and a fitness program and that a gym program be funded by, in essence, the defendant. Shortly thereafter a report was written by Mr David Bloom, a physiotherapist of Weston in the ACT, who had provided to the plaintiff postural advice, cardiovascular training, "core stability with a Swiss ball," and recommended a gym program for the plaintiff's general strength and control. The other reports before me are, in essence, medico-legal reports for the current proceedings. In reviewing the recent medico-legal reports I shall concentrate on the remarks concerning the plaintiff's knees as the plaintiff's lumbar condition is clear and it is also a irrefragable fact in these proceedings that the plaintiff is incapacitated for work in the NSW Police because of the certified infirmity of lumbar degenerative disease. 66The plaintiff saw Dr James Bodel at the request of his solicitors on 31 October 2011. Under the heading "Current complaints" Dr Bodel recorded this: "This gentleman has pain in both knees, the right is much worse than the left. He has been under the care of Dr Michael Gillespie and has had an arthroscopy on the right knee in January 2011. Dr Gillespie has also I understand done a patellar realignment procedure and that has helped." 67Dr Bodel made comments on, "Relevant documentation." In that he says this: "A much more recent letter from Dr Michael Gillespie from 3 May 2011 confirm [sic] this gentleman's problems in relation to both knees. He confirmed that at the time of that assessment that he had, 'quite significant joint space narrowing in the right knee and an MRI scan confirms that he has pretty severe damage to the medial meniscus and quite a bit of chondral loss in the medial compartment of his knee. There was also some wear and tear in the patellofemoral joint.' Dr Gillespie concluded that by then he was struggling from the point of view of his right knee injury and he recommended an arthroscopy to tidy up the damage. Dr Gillespie concluded that there had been a history of the repeated episodes of injuries to the knees in the police service leading to his deteriorating knee function." 68Dr Bodel was asked by the plaintiff's solicitors to assess the plaintiff's claims for gratuities pursuant to s 12D of the Act. Dr Bodel diagnosed 20% permanent impairment of the plaintiff's back which he attributed to three injuries; that of 3 January 1991, the injury of 24 June 1993 and the injury of 1 March 1999. He diagnosed a 20% loss of efficient use of the right leg at or above the knee, half being due to the injury in 1991 and half to the injury of 24 June 1993. Dr Bodel did not believe that the incident of 1 March 1999 had contributed to the condition of the plaintiff's right knee. The doctor was not asked to assess the loss of efficient use of the plaintiff's left leg at or above the knee. 69The plaintiff was assessed by Dr David Fitzgerald, a consultant occupational physician, for the defendant on 26 September 2012. Dr Fitzgerald noted that the plaintiff had had bilateral knee arthroscopies, the last being on the right knee in June 2011 at the hands of Dr Gillespie. Dr Fitzgerald also took a history that Dr Gillespie had advised the plaintiff that he will eventually need a total knee replacement of the right knee. It appears from the history recorded by Dr Gillespie that what Dr Mikulin thought was a polyarthropathy afflicting the plaintiff in November 2000 was in fact measles with the possibility of its also being Ross River fever. Dr Fitzgerald examined the plaintiff's knees and he heard bilateral crepitus and noted varicosities. Dr Fitzgerald pointed out that as far as the low back was concerned the plaintiff was capable of undertaking sedentary work provided he was not seated for periods in excess of 60 minutes and where he would be able to frequently change posture or allow him to be mobile, "in a low impact nature," which I assume it means something in the nature of where he could walk around on smooth surfaces or the like. When asked to decide whether the plaintiff suffered from any other medical conditions - that is other than the condition of his low back - Dr Fitzgerald noted that the plaintiff had, "bilateral knee conditions that are degenerative." 70The plaintiff was seen by Dr Geoffrey Stubbs, an orthopaedic surgeon, on 21 March 2013, for the defendant. Like Dr Fitzgerald, Dr Stubbs took a history that the plaintiff had been advised by Dr Gillespie that he will eventually come to total knee replacement on the right-hand side. Like Dr Bodel, Dr Stubbs commented on documentation in that he said this: "Dr Gillespie wrote to Dr George in May 2011 reporting on Mr Carswell and the MRI study suggesting that there may be some temporary benefit to the knee from an arthroscopic clean-up of the knee joint, probably including a medial meniscectomy. I agree, this will probably improve symptoms, though the evidence would suggest on for a few years and that the osteoarthritis will progress at about the same rate in any case." Further on in that section of his report Dr Stubbs said this: "The knees are progressively deteriorating." Dr Stubbs diagnosed a 10% loss of efficient use of the plaintiff's right leg at or above the knee. 71The other medico-legal reports that are before me are from Dr Tim Anderson, an occupational physician who gave evidence on Monday, 17 February 2014. Dr Anderson took a history that there would be a need for total knee replacement bilaterally. Dr Anderson does not appear to have found much on clinical examination that suggested disabling symptomatology in the knee joints but that of course is inconsistent with what the plaintiff says about himself. There was no question in my mind as to the veracity of the plaintiff but I did have certain reservations as to the impartiality of Dr Anderson. He appeared to me to be more of an advocate than an independent, impartial expert. He suggested that in essence the plaintiff was 50% disabled but that is quite inconsistent with the plaintiff's own evidence and the economic information in front of me. 72The final thing I note is that the defendant has paid to the plaintiff a gratuity under s 12D, equivalent to a lump sum under s 66 of the Worker's Compensation Act 1987 for 15% loss of efficient use of the plaintiff's right leg at or above the knee. It would appear that the defendant accepts that the condition of the plaintiff's right knee was caused by his having been hurt on duty. 73Apparently the opinion of Dr Mikulin that half of the condition of the plaintiff's left knee was caused by his having been hurt on duty has never been pursued. It would appear that as at the time of his medical discharge the plaintiff had an ongoing problem in his left knee. By the end of 1995 the plaintiff had undergone arthroscopy of his left knee involving chondroplasty. The chondral damage had been to 70% of the retro-patellar surface of the left knee. Dr Mikulin refers to that as "chronic damage." He thought that 50% of the condition of the plaintiff's left knee was caused by his having been hurt on duty which appears never to have been pressed by the plaintiff himself. I can accept therefore that at the time of his medical discharge that in addition to the lumbar degenerative disease the plaintiff had an ongoing chronic problem in his left knee and that more recently the plaintiff has been advised that he will need a total knee replacement on the left-hand side. 74It appears that sometime between 2006 and 2011 the symptoms in the plaintiff's right knee became manifest leading to the need for arthroscopic surgery and the plaintiff has now been diagnosed with a chronic condition in his right knee which again will require a total knee replacement on that side. It would appear that the current defendant and therefore also the Commissioner of Police must have accepted that the condition of the plaintiff's right knee was caused by his having been hurt on duty. The significance of that is only this: that if the injury causative of the problem in the right knee was caused by the plaintiff's having been hurt on duty, that injury set in train some pathology prior to the plaintiff's discharge which has more recently become symptomatic and incapacitating to an extent. Therefore one would think that if the plaintiff's knees had been separately assessed at the time of his medical discharge by either clinical examination and or radiological investigation one would have detected pathology in both of the plaintiff's knees. 75One thing I do know about the Australian Federal Police is that were the plaintiff to join it either merely as an employee or as a member he would be required to pass a medical examination. Whether the plaintiff would have satisfactorily passed a medical examination for the AFP I do not know. The onus in this application is on the plaintiff. The plaintiff must persuade me on the balance of probabilities that, absent lumbar degenerative disease, he would have satisfactorily completed the medical examination required to join the AFP. Given what I have said about the condition of the plaintiff's knees I am not persuaded that the plaintiff would have passed such a medical examination. The plaintiff must persuade me that he would have and the plaintiff has failed to do so. The plaintiff left the matter to conjecture on my part and conjecture is no substitute for evidence. 76The question then becomes what would the plaintiff have done having been medically discharged from the NSW Police but not joining the AFP. The probabilities are exactly what has actually happened, that the plaintiff would have obtained a job as an investigator of some sort in some government organisation, or some qango, or in some large corporation. Such employment is very common for retired members of the NSW Police. In the current case the plaintiff managed to find work in the Australian public service as an investigator. He commenced such work in May 2007 and continues to perform it, albeit with different departments within the Commonwealth public service. As I set out yesterday he has gone from the Child Support Agency, to Comcare, to the ACCC and currently is with the Department of Health. I have heard many cases over the years where similar things have occurred. For example, in Mason v Commissioner of Police [2013] NSWDC 274 the plaintiff had found work with the ICAC, with the State Railways and with the RTA, essentially as an investigator. It is common for people such as the plaintiff, who have long service with the NSW Police and wide experience, to use the knowledge that they have and the skills that they have acquired through serving in the NSW Police to obtain work as an investigator either in private employment as a private inquiry agent or a loss adjuster or internal investigation in a government department or, for example, as a loss assessor for an insurance company, or doing internal inquiries within large commercial corporations such as banks and the like where there is the ability of staff and others to commit fraud or to engage in defalcation. 77Yesterday I pointed out that one way in which the plaintiff's case was presented was the plaintiff's need to take additional annual leave, currently five weeks additional annual leave, so that he can cope with his symptoms. I have already mentioned that I have no hesitation accepting the plaintiff's evidence. His candour was remarkable. In-chief he was asked about why he took the five weeks annual leave. He said because it helped him cope with symptoms in his knees. He told me that his knees were more a problem for him than his back. He told me that his knees were almost constantly a source of discomfort. When asked in chief whether if he had no knee problem would he take the extra annual leave he said he would not. He was clearly talking about the situation that currently obtains. 78However it is to be noted that the plaintiff started taking the extra annual leave about six months after he joined the Australian public service; that is, towards the end of 2007. Clearly his right knee was a major problem for him, not then but in 2011. Guarding one's knees also helps one guard one's back. If one is acting in such a way to protect the knees from unexpected exertion such as torsion and extended flexion one can understand that there will be less stress thrown onto the spine. Mere considerations of human anatomy indicate to me that the plaintiff probably in guarding his knees is also guarding his back. That causes the back to be less symptomatic than it otherwise might be. Earlier today I quoted for the opinion of Dr Bills as to the natural history of the condition of the plaintiff's back; that is to suffer about four exacerbations per annum, which might be anywhere between mild and severe in intensity and might last for a few days to a few weeks. That was the situation which obtained in April 2006. One might postulate that in any one year the plaintiff might have a mild exacerbation which lasted for a day or two, a moderate exacerbation which could last for three or four days and perhaps a severe exacerbation which might last for more than a week. One could postulate that all told the plaintiff might lose two and half weeks per annum off work because of such exacerbations. I combine that observation with the earlier observations I had made that taking the five weeks extra annual leave helps the plaintiff guard not only the condition of his knees but also the condition of his back. 79I have reached the view that I can attribute the plaintiff's taking half of the five weeks extra annual leave to the condition of his back as well as to the condition of his knees. As at 11 October 2012 the plaintiff was earning with the Federal Department of Health $1,671.98 per week. He was paying to obtain the extra annual leave $160.25 per week. I take the weekly earnings from his then annual salary and the amount that he was paying weekly for his extra leave from the fortnightly deduction of $320.51. In rough terms $160.25 per week is a little more than 9.5%. I round that out to 10%. If I take the plaintiff as having a 5% incapacity on the open labour market that would entitle the plaintiff to 5% of 12.25%, which is .61% of the attributed salary of his office. If I add .61% to 72.75% I get, if my mathematics be correct, which is always problematic, 73.36% of the salary of the plaintiff's office. In my view the plaintiff is entitled to the extra .61% of the salary of his office such that his hurt-on-duty pension should be increased to 73.36% of the salary of his office. 80The finding which I have made may come as a disappointment to the plaintiff. I have no doubt that he has a moderate disabling physical condition. However, incapacity for work outside the police force is being measured in economic terms. For example, in Lembcke v SAS Trustee Corporation (2003) 25 NSWCCR 464, Santow JA said at [48]: "In determining incapacity, one may draw upon well-established principle that a worker's actual earnings are likely to be the measure of incapacity for work outside the police force, unless it is established that the worker's actual earnings are not a proper test: Pira Pty Ltd v Tucker (1996) 14 NSWCCR 26 at 31-32, applying the reasoning in Atkin v Goodyear Tyre & Rubber Co Australia Ltd (1945) 46 SR(NSW) 20." 81At the current time the plaintiff's earning capacity is only moderately affected by his physical disability. The plaintiff made it clear that his concern was what was to happen in the future bearing in mind that it is likely that the condition both of his back and his knees will deteriorate with the passage of time and as far as his knees are concerned he will come to total knee replacement on each side. However, it must be remembered that pursuant to s 10(1D) the current defendant may make a determination at any time of an additional amount of superannuation allowance payable under s 10 and may vary such determination at any time. In other words; if there be deterioration in future and the plaintiff's working capacity is affected by such deterioration the plaintiff can request the defendant to make a further determination and if the plaintiff is dissatisfied with that further application he can make a further application to this Court. 82The one thing which came through very loud and clear commencing on Monday was that the plaintiff was a man of integrity and honour, a man who could be described in the vernacular as a "bloody good bloke" and in the course of his giving evidence Dr Anderson acceded to that remark and I pointed out to the doctor that anyone who spent any time at court on that day listening to Mr Carswell give evidence would form exactly that view. The result of this case is not because of any adverse inference I have drawn about the plaintiff's evidence at all but rather is consonant with all of the evidence. 83The remaining issue is when the increased pension benefit should commence. Under s 10(1D) the STC can direct the variation to take effect from such time as it considers, "appropriate." This is an area that is the subject of some authority. The first decision to which I should refer is my decision in Tanks v SAS Trustee Corporation (1 September 2004, RJ00894/03, unreported). Commencing at [28] I said this: "I am told, without objection, that the plaintiff only made an application under s 10(1A)(c) on 16 June 2003. As I earlier stated, relying on the defendant's notice of ground of defence, the plaintiff was discharged from the Police Force on 27 February 1997. He was granted a superannuation allowance for total incapacity under para (b) on 27 August 1997. I am told, again without objection, that the defendant's policy is to backdate any increased allowance to the date of the original grant provided that it is made within 12 months. One can accept therefore that the plaintiff has received 85% of the salary of his office since 27 February 1997. However, it is not until more than six years later on 16 June 2003 that the plaintiff made an application under para (c). He clearly made an application under para (b) at some time prior to 27 August 1997 and one would infer within six months of being medically discharged. Clearly the plaintiff's delay ought not provide him with a windfall or the defendant with a detriment. Like my retired colleague, His Honour Burke J, I agree that there is much in Matthew, ch 7, verse 7: 'Ask and it shall be given you; seek, and you shall find; knock and it shall be opened unto you.' If the plaintiff fails to ask or fails to seek or fails to knock he ought not, in my view, have the benefit of his failure. It appears to me that the appropriate date from which the increased superannuation allowance ought be paid should be from 16 June 2003." 84That dictum was cited by Truss DCJ in Pinkerton v SAS Trustee Corporation (10 August 2007, RJ00319/06, unreported). In that case the plaintiff had been medically discharged as hurt on duty on 12 August 1993. By letter dated 23 September 2005 the plaintiff's then solicitors applied for his existing superannuation pension rate to be increased from 72.75% to 85%. On 25 January 2006 the defendant in those proceedings advised that PSAC had approved an increase to 84% payable from 23 September 2005, the date of his application for increase. On 7 March 2006 that plaintiff's solicitors wrote to the defendant applying for the pension to be backdated to the date of medical discharge on 12 August 1993. At [10] her Honour said this: "The defendant relies upon a judgment of Neilson DCJ in Tanks v SAS Trustee and says that if a plaintiff does not seek certain relief he ought not be entitled to complain if he does not get it. In Tanks the plaintiff's pension commenced from the date of discharge, 24 February 1997. An increase was approved six months later and he later applied for further increase on 16 June 2003 in respect of which Neilson J allowed the appeal and ordered an increase from the date of application. His Honour referred to the plaintiff's delay which he said ought not provide him with a windfall or the defendant with a detriment. In this present case the delay was some 12 years. It was submitted on behalf of the plaintiff that Tanks is of limited assistance because the issue arose as an afterthought and was not properly argued. However, having regard to the judgment I am satisfied that the matter was properly considered by his Honour." 85Her Honour then went on commencing at [14] to consider whether backdating of the pension was "mandatory." Her Honour held at [21] that the legislation did not mandate the additional allowance being backdated to the date of discharge. Her Honour then went on to consider the defendant's argument that the plaintiff was not entitled to the relief sought because in or about January 2007 he commuted the balance of his annual superannuation allowance after two earlier partial commutations. Having considered that submission, her Honour dismissed the appeal, as such an application was then called. There are three other decisions that are pertinent; two being decisions of Ashford DCJ and one being a decision of Robison DCJ. However, those decisions rely on their own facts. 86Here the plaintiff does not seek backdating to the date of the commencement of his pension, 5 January 2002, but to 12 April 2011. As I had earlier mentioned the plaintiff did not apply to the defendant for an increased pension until 20 July 2012. The defendant properly concedes that if there is to be an award it ought be backdated to at least 20 July 2012. The plaintiff seeks not that date but the date that he first consulted his present solicitors who assisted him in making the application to the defendant which gives rise to this application. 87I quoted earlier in these reasons the defendant's letter to the plaintiff of 18 January 2002 which advised him of his rights. One will note that the defendant itself required the plaintiff to lodge an application in writing supported by a specialist medical opinion. The plaintiff's solicitors for that purpose retained Dr James Bodel whose reports I have earlier quoted. Dr Bodel examined the plaintiff on 31 October 2011 and wrote a report bearing that date. There was a delay of just over six months between the plaintiff's consulting his present solicitors and his being examined by Dr Bodel. Such delays are usual when one finds it necessary to consult a specialist orthopaedic surgeon, and Dr Bodel, noted for his accurate diagnoses and his independent view, is a highly sought after consultant orthopaedic surgeon, providing opinions not only to plaintiffs but also to defendants. The delay between the plaintiff seeing his solicitors and being examined by Dr Bodel is wholly explicable. However, what is not wholly explicable is the delay of almost nine months between 31 October 2011 and 20 July 2012. No attempt was made in the plaintiff's case to explain the delay. 88In the course of argument I pointed out to learned counsel for the plaintiff that if I were to adopt as a matter of principle the date on which a plaintiff sought legal advice in order to enable him to make an application to increase a pension I would sometimes be permitting inordinate delay because sometimes some solicitors can take years "to get their act together", so to speak, to assemble the evidence necessary to make an application to the defendant for an increased pension. It is clear from what I said in Tanks that the defendant's policy permits an applicant for an increased benefit a year to prepare his case and to put that case before it. However, in the current case the delay was over 15 months. However, some period is properly, in my view, allowable to enable a plaintiff to obtain the necessary evidence to put it before the defendant so that the defendant can reach a decision. It appears to me that the one year allowed by the defendant itself is appropriate and in the circumstances it appears to me that I ought backdate the pension to 20 July 2011; that is one year prior to the application actually being lodged. If the plaintiff's solicitors had been diligent and got it in within a year it would have been backdated even earlier. 89Any further reasons for judgment required gentlemen? 90BLUME: No, your Honour. 91HAMMOND: No, your Honour. 92HIS HONOUR: I have inquired of Mr Blume who replaces Mr Ower today and Mr Hammond who still appears for the plaintiff if any further reasons for judgment are required and I am told that none is so required. 93For those reasons, I set aside the decision of the defendant made on 23 April 2013 and I determine that the plaintiff's annual superannuation allowance be increased to 73.36% of the salary of his office with effect from 20 July 2011. I order the defendant to pay the plaintiff's costs. ********** Amendments 07 May 2014 - Lembcke Amended paragraphs: Coversheet 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: 07 May 2014