Flowers v SAS Trustee Corporation [2015] NSWDC 275

District Court New South Wales

Medium Neutral Citation: Flowers v SAS Trustee Corporation [2015] NSWDC 275 Hearing dates: 27-28 August 2015; 1-4 September 2015 Date of orders: 16 September 2015 Decision date: 16 September 2015 Jurisdiction: Civil Before: Neilson DCJ Decision: Decision of the defendant made 18 March 2014 set aside.

Pursuant to s 10(1A)(b) Police Regulation (Superannuation) Act 1906, plaintiff's pension entitlement increased to 77.65% of the attributed salary of his office from 17 February 2007 and to 85% of the attributed salary of his office from 3 February 2014.

Defendant to pay plaintiff's costs.

Increase of the pension granted prior to 3 February 2014 stayed until 6 October 2015. Catchwords: POLICE SUPERANNUATION –NATURE OF INFIRMITY – Plaintiff discharged 8 February 1986 with certified infirmities of "Personality Disorder and Recurrent Anxiety Episodes" – Second infirmity accepted as being caused by plaintiff's being "hurt on duty" (HOD) – Whether that infirmity the same as Post Traumatic Stress Disorder (PTSD) – Aggravation of the infirmity by a workers compensation injury on 20 December 2005 irrelevant –

POLICE SUPERANNUATION - DELAY – Pension increase sought from 17 February 2007 when plaintiff's last employment ended – Application for increase received by defendant on 28 October 2013 – Plaintiff had been advised of his right to make a claim for an increase in his pension benefit by 29 March 1986 – Delay relied upon by the defendant

POLICE SUPERANNUATION – INCREASE PENSION BENEFIT – QUANTUM – Benefit adjusted for period 17 February 2007 and 2 February 2014 by the ratio between what plaintiff would have earned uninjured (i.e. not HOD) outside the Police Force and what he was earning with his last employer – Benefit from 3 February 2014 awarded on basis of total incapacity – Irrelevant that plaintiff would not have been working in any event – Discretionary considerations all irrelevant under HOD scheme Legislation Cited: Miscellaneous Acts (Workers Compensation) Amendment Act 1984 Police Regulation (Superannuation) Act 1906 Police Service Regulation 1990 Workers Compensation Act 1926 Workers Compensation Act 1987 Cases Cited: Calman v Commissioner of Police [1999] HCA 60 Calman v Commissioner of Police (1998) 16 NSWCCR 333 Daley v SASTC [2015] NSWDC 183 Gannon v COP (2004) 1 DDCR 380 Lembcke v SASTC [2003] NSWCA 136 National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 Poole v SAS Board (2000) 20 NSWCCR 633 Saad v COP (1995) 12 NSWCCR 70 SASTC v Patterson [2010] NSWCA 167 Texts Cited: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (3rd ed 1980, American Psychiatric Publishing). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders – Text Revision, (4th ed 2000, American Psychiatric Publishing). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (5th ed 2013, American Psychiatric Publishing). Dr Selwyn Smith, "When Your Loved One Has Post-Traumatic Stress Disorder", Police News May 2006. C P Mills, Workers Compensation (New South Wales), (2nd ed 1979, Butterworths) Furzer Crestani Charted Accountants, Assessment Handbook, October 2012 Category: Principal judgment Parties: Alan G Flowers (Plaintiff) SAS Trustee Corporation (Defendant) Representation: Counsel: Mr P O'Rourke (Plaintiff) Mr T Ower (Defendant)