District Court New South Wales

• Medium Neutral Citation: Perrin v SAS Trustee Corporation [2013] NSWDC 191
• Hearing dates: 9 and 10 September 2013
• Decision date: 20 September 2013
• Before: Gibson DCJ

Decision

(1) Set aside the decision of the defendant made on 6 September 2007 insofar as the plaintiff's pension entitlements are concerned.

(2) I determine the plaintiff's pension be increased to 85% (s 10(1A)(b) of the Police Regulation (Superannuation) Act 1906 (NSW)), to be paid on and from 6 September 2007.

(3) The defendant pay the plaintiff's costs.

(4) Exhibits retained for 28 days.

• Catchwords: Police Superannuation and Pensions - retirement on account of incapacity - claim for additional entitlement - incapacity for work outside the police force
• Legislation Cited: Civil Procedure Act 2005 (NSW), s 56; District Court Act 1973 (NSW), s 142J; Police Regulation (Superannuation) Act 1906 (NSW), ss 3, 5, 8, 9A, 10, 10B, 14, 21; Uniform Civil Procedure Rules 2005 (NSW), r 31.10
• Cases Cited: Checchia v Insurance Australia Ltd t/as NRMA Insurance (2013) 64 MVR 36; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; Joseph Street Pty Ltd v Khay Tek Tan [2010] VSC 586; Lembcke v SAS Trustee Corporation (2003) 56 NSWLR 736; Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Poole v State Authorities Superannuation Board (2000) 20 NSWCCR 633
• Texts Cited: -
• Category: Principal judgment
• Parties: Plaintiff: Scott David Perrin; Defendant: SAS Trustee Corporation
• Representation: Plaintiff: Mr P O'Rourke; Defendant: Mr T Ower; Plaintiff: Walter Madden Jenkins; Defendant: Rodney Steventon Blume
• File Number(s): RJ00078/12
• Publication restriction: None

Judgment

1 The plaintiff, by statement of claim filed on 29 February 2012, brings proceedings pursuant to s 21 Police Regulation (Superannuation) Act 1906 (NSW) ("the PRS Act") to set aside a decision of the defendant made on 25 August 2011, and to have this decision replaced by a different decision of this court.

2 The decision of the defendant of 25 August 2011 was as follows:

(a) The plaintiff be granted an increase in pension from 72.75% to 78.55% of salary of office at exit;

(b) The said increase in pension to take effect from 6 September 2007, this being the date of pension commencement.

3 The plaintiff does not dispute the date from which the "pension" increase commences, but seeks to have this decision increasing the pension to 78.55% set aside and replaced by a decision to increase the pension to 85% (s 10(1A)(b) of the PRS Act) or, alternatively, a finding that he is "totally incapacitated" pursuant to s 10(1A)(c).

The structure of the PRS Act

4 I shall first set out the legislative structure upon which the plaintiff's claim is based.

5 Pursuant to ss 3 and 5 of the PRS Act the defendant has the obligation to administer the police superannuation fund. The plaintiff is a former police officer who was attested as a police officer on 15 May 1987 and thereby became a contributor to the police superannuation fund from that date.

6 Section 10 of the PRS Act provides:

"10 Superannuation allowance where member hurt on duty

(1) In this section:

"attributed salary of office" means:

(a) in relation to a member of the police force who is discharged-the member's attributed salary of office at the date of the member's discharge, or

(b) in relation to a former member of the police force who resigned or retired-the member's attributed salary of office at the date of the member's resignation or retirement.

"disabled member of the police force" means:

(a) a member of the police force who is discharged after being certified, pursuant to section 10B (1), to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 , or

(b) a former member of the police force who resigned or retired and who, according to a certificate given pursuant to section 10B (2) at any time after the member's resignation or retirement, was incapable, from an infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member's resignation or retirement,

that infirmity being determined, pursuant to section 10B (3) or on appeal, to have been caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be.

"retired" includes discharged as referred to in section 7 or 14.

(1A) Subject to this section, the annual superannuation allowance for a disabled member of the police force is:

(a) an amount that is equal to 72.75 per cent of the member's attributed salary of office,

(b) except where paragraph (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, and

(c) if the disabled member is totally incapacitated for work outside the police force and, in the opinion of STC, the member was hurt on dutybecause the member was required to be exposed to risks 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 member's attributed salary of office, and

(ii) commensurate, in the opinion of STC, with the risks to which the member was so required to be exposed,

multiplied by the equivalent service ratio of the member as at the date of the member's discharge, resignation or retirement.

(1AA) If STC has made a determination under section 14AA in relation to an annual superannuation allowance payable under this section, the amount of the allowance is reduced by the amount specified in STC's determination.

(1B) An annual superannuation allowance may be granted under this section to a disabled member of the police force whatever the member's length of service.

(1BA) A superannuation allowance referred to in subsection (1A) or an additional amount of a superannuation allowance referred to in subsection (1D) is not payable to a disabled member of the police force unless an application for payment of the allowance or additional amount concerned is made:

(a) before the member reaches the age of 60 years, or

(b) not later than 5 years after the member resigns or retires,

whichever is the later.

(1C) Where a former member of the police force who resigned or retired is granted an annual superannuation allowance under this section, the allowance shall, at the time it first becomes payable, be increased or reduced, as the case may require, by the total amount (if any) that it would have been increased or reduced under Division 2 or any other provision of this Act if it had been granted when the former member resigned or retired.

(1D) STC may:

(a) make a determination at any time of an additional amount of a superannuation allowance under this section, and

(b) vary any such determination at any time,

and may direct that the determination or variation take effect from such date as STC considers appropriate.

(2) An annual superannuation allowance under this section shall not be payable to a former member of the police force who:

(a) wholly commuted under Division 3 a superannuation allowance that previously became payable to the former member under this Act, or

(b) has been paid a disengagement benefit under section 8A.

(3) If a superannuation allowance payable to a former member of the police force was partially commuted under Division 3, the allowance payable under subsection (1A) in respect of the member is to be reduced by the proportion that the commuted part of the superannuation allowance bears to the whole of the superannuation allowance."

7 On 8 November 2001, the plaintiff was medically discharged pursuant to ss 8 and 14 of the PRS Act with an infirmity described as "chronic adjustment disorder with depression". Following this finding, the plaintiff sought a determination from the NSW Police Commissioner, in accordance with s 10B(1) of the PRS Act. The order sought was a determination that the infirmity was caused to the plaintiff by being "hurt on duty" in accordance with the PRS Act. The Commissioner of Police declined to certify that the infirmity was caused by the plaintiff being hurt on duty. The plaintiff then appealed from that decision in the District Court. This appeal was later withdrawn. That meant that the plaintiff was entitled to receive only a gratuity under the PRS Act pursuant to ss 8 and 14, namely the monetary equivalent of two years salary.

8 However, the PRS Act allows for a police officer who has resigned or retired from the police force to bring what is best described as a retrospective application for medical discharge. Such an application may be pursued in accordance with ss 10 and 10B(2) of the PRS Act. That is the application before me in these proceedings.

9 The plaintiff brought that determination in relation to three infirmities, namely injuries to the neck, lower back and left knee. A determination was made on 3 October 2008 by the defendant that the plaintiff suffered from these three infirmities (s 10B(2)). As a result of the determinations made by the defendant and the Commissioner of Police, the defendant commenced payment of the plaintiff's superannuation allowance at the rate 72.75% of the plaintiff's contributed salary of office on and from 6 December 2007: ss 9A and 10(1A)(a) of the PRS Act.

10 The plaintiff then made a further application pursuant to s 10B(3) of the PRS Act. The 14 February 2010 application resulted in a finding on 25 August 2011 that:

(a) In terms of s 10(1A)(b) PRS Act, to increase the plaintiff's superannuation allowance to 78.55% ("the appeal decision") and,

(b) In terms of s 10(1D) PRS Act, to commence such increase on 6 September 2007.

11 The plaintiff's solicitors were advised by letter dated 28 August 2011 received on 1 September 2011 of this determination. On 29 February 2012 the plaintiff commenced the proceedings which are before me for determination.

12 The allowance which the plaintiff receives falls into three parts:

(a) There is a base allowance which has been increased from 72.75% to 78.55%;

(b) There is a further determination by the defendant under s 10(1A)(b) which provided for this increase of superannuation of 5.8%, which is an increase commensurate with the plaintiff's incapacity to work. This is the decision under appeal; and,

(c) If I were to find in accordance with s 10(1A)(c) that the plaintiff is "totally incapacitated", and there is evidence to justify an increase to 85%, the plaintiff may then seek determination of the issue as to whether he was "totally incapacitated" in accordance with that provision.

13 I next note the provisions of s 10(1D), which allow the trustee (and therefore the court on appeal) to make a determination in relation to the additional amount of superannuation allowance to be paid, and to vary that determination at any time. The test (or the discretion) to be applied is what the trustee (or this court) considers appropriate. The word "appropriate" allows me to consider the plaintiff's evidence as to the level of incapacity from which he had suffered from September 2007 to date and to consider what increase may be appropriate in the circumstances.

14 The correct approach to s 10, and in particular s 10(1A), of the PRS Act has been explained by the Court of Appeal in Lembcke v SAS Trustee Corporation (2003) 56 NSWLR 736 at [48]-[49] as follows:

"[48] I would conclude that the Neilson J approach should not be followed in the interpretation of s 10(1A) of the Act. The Curtis J approach is to be preferred. I do not agree with the Respondent's submission that it lacks transparency of reasoning and relies heavily upon a broad-brush discretionary approach that cannot be effectively tested. If anything it is more precise than recourse to what is "proper" in the circumstances. S 10(1A) is plain and clear in its terms. It requires simply a consideration of what additional amount is, in the opinion of STC, commensurate, in the sense of proportionate, with the member's incapacity for work outside the police force, the member being discharged from the police force. It arises, it should be emphasised, not as simply workers' compensation payments during working life, but in the context of a superannuation payment by way of pension for the life of that disabled former member of the police force. 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 31-2 applying the reasoning in Atkin v Goodyear Tyre & Rubber Co Austin (Ltd) (1945) 46 SR (NSW) 20.

[49] That recourse to authority is of course very different from attempting to apply s40 of the Workers Compensation Act more broadly. Here, all one is doing is treating as a reasonable proxy for incapacity, the level of reduction of actual earnings, recognising that it is a prima facie test capable of being displaced."

15 The relevant issues were described by Meagher JA in Lembcke v SAS Trustee Corporation, supra, at [4] in one sentence, namely:

"[W]hat is the applicant's incapacity for work outside the police force?"

16 This simple formula represents the issue with which I have to deal in these proceedings.

17 I also note that, for the reasons explained in Poole v State Authorities Superannuation Board (2000) 20 NSWCCR 633 at 636-637, the determination should not take account of irrelevant issues such as the onset of further degenerative changes. What I must do is assess the incapacity of the plaintiff in accordance with his incapacity for work outside the police force by reference only to the certified infirmities which are accepted as being caused by the plaintiff being "hurt on duty". The question is whether those infirmities are adequately reflected in the increase to 78.55%.

18 Having noted these matters, I now turn to a consideration of the evidence in these proceedings. This includes cross-examination about the plaintiff's other health problems which include a provisional diagnosis of epilepsy which appears to be mistaken, a condition of diabetes 1 diagnosed when he was 25 years old which has played little part in his medical history, and the more complex issue of his ongoing anxiety and depression issues.

The plaintiff's evidence

19 The plaintiff is currently 48 years of age. He completed School Certificate, following which he was apprenticed as a blacksmith/boilermaker for 12 to 18 months, and thereafter completed his apprenticeship as a lithographic printer, this being a profession in which a number of the members in his family had participated.

20 On 15 May 1987, the plaintiff was attested into the New South Wales police force after 12 months of training. He was initially a probationary constable. One year later, he was promoted to constable; by 1996 he was a senior constable. During 1987 - 1990, he was on general duties, and from 1990 - 1991 he was in plain clothes, as a member of the Drug Squad South Region. From 1989 to 1994 he worked for the DEA, being a designated detective from 1992. From 1994 until the date of discharge, he was a detective at Newtown, although there was a period he was seconded to the Armoury. During this time, he carried out surveillance work and prepared some complex briefs.

21 In the course of his work as a police officer, which is a difficult and dangerous profession, he sustained a series of injuries. These are as follows:

(a) 4 September 1989 - The plaintiff slipped on a tiled floor at Botany Police Station. His left knee had collapsed and he landed heavily on it. He was referred to Dr James Vote, who has provided a report for these proceedings. He noted that the plaintiff had earlier undergone a medial meniscectomy (performed by Dr Benscik in 1985) and accordingly recommended conservative treatment. The plaintiff made a substantial recovery at the time but was still complaining of left knee problems following his return to work.

(b) 5 April 1990 - The plaintiff was involved in a violent altercation while attempting to arrest an offender at a Kings Cross hotel. In the course of an altercation pasting some five minutes, the plaintiff suffered some blows to his left knee. Again, the treatment was conservative. The plaintiff left the Drug Squad and transferred to light general duties at Mascot but later returned to full operational duties, still complaining of symptoms in his left knee.

(c) There was a further incident involving psychological disturbances on 13 July 1997 (see the report of Dr J S Scougall of 28 February 2006, Exhibit A). He returned to work in November 1997 on light duties and was transferred to Newtown. He performed normal operational duties up until his further injury in January 1998.

(d) 1 January 1998 - The plaintiff was a passenger in a police vehicle and wearing a seatbelt when the vehicle was rammed from the rear by a truck in the course of effecting an arrest. He suffered feelings of being generally shaken and of neck and back pain but returned to work within a matter of days. He subsequently had physiotherapy but continued to suffer from intermittent neck and back pain.

22 The plaintiff returned to work but suffered significant health problems. He remained on sick report from July 1998 until his eventual discharge on 8 November 2001. He made an application for medical discharge on 15 February 2000 on a psychiatric basis. However, his physical problems continued. On 19 October 2000 his knees were x-rayed, as he continued to suffer from knee pain.

23 On 31 October 2001, the defendant determined pursuant to ss 8 and 10B(1) of the PRS Act that the plaintiff suffered from "chronic adjustment disorder with depression". On 7 November 2001, the delegate of the Commissioner of Police made the decision that this was not caused by the plaintiff being hurt on duty for which the plaintiff lodged an appeal with this court which was discontinued in 2005.

24 The plaintiff suffered from an unrelated medical problem, in that in September 2002 he underwent a surgical procedure for left carpal tunnel release. He has recovered from this condition. It is not suggested that there is any long term problem arising from this condition or medical procedure.

25 The plaintiff continued, after his discharge, to suffer from physical, as well as psychological, problems. He underwent an x-ray and CT scan on 29 May 2002 and on 15 October 2002 consulted Dr Diwan, an orthopaedic surgeon. On 25 November 2002 he underwent an MRI for his cervical spine.

26 On 26 January 2003, the plaintiff fractured his shoulder falling off either a ladder or by tripping over. He fell over some bottles and this complicated his fall. While his shoulder was fractured, it appears to have substantially recovered; it is not submitted by the plaintiff that this caused any significant ongoing difficulty. He had an ultrasound of his left shoulder and a CT scan of his cervical and upper thoracic spine on 15 April 2003. On 16 July 2003, following collapses of his knee, he underwent x-rays and CT scans of a lumbosacral spine and on 2 March 2004 underwent an x-ray and ultrasound of his left knee.

27 The plaintiff's health continued to worsen over this period. On 4 February 2005 he underwent an x-ray of his pelvis and left hip, as well as a CT of his lumbar spine. On 28 February 2006, he was seen by Dr Scougall, whose report has been tendered. A further x-ray and CT scan of his cervical spine as well as a bone scan were performed on 23 June 2006.

28 This was the state of the plaintiff's health when he made the application on 4 September 2007 for a medical discharge benefit. His condition since that time has been the subject of reports by the treating doctors, as well as medicolegal reports and as described in his own evidence.

From 6 September 2007 to date

29 The plaintiff continued to receive medical treatment for his ongoing health problems. On 31 October 2008, a determination was made in terms of s 10B(2) of the PRS Act that the plaintiff suffered from the following infirmities:

(1) Cervical spondylosis with a degree of radicular symptoms in the left arm;

(2) Early arthritic changes in the left knee and evidence of anterior cruciate ligament deficiency.

30 On 11 November 2008 the delegate of the Commissioner of Police made a determination in terms of s 10B(3)(a) of the PRS Act that the infirmity of "Early arthritic changes in the left knee and evidence of anterior cruciate ligament deficiency" was caused by the plaintiff being hurt on duty. The dates of those injuries were 4 September 1989 and 5 July 1990.

31 On 19 August 2009 the defendant determined an amendment to its determination of 30 October 2008 adding the infirmity of "aggravation of spondylolisthesis and degenerative change in the lower back". There was a determination on 31 August 2009 that the infirmity in the plaintiff's lower back was not caused by the plaintiff being hurt on duty and a further determination on 27 January 2010 that the infirmity relating to the plaintiff's neck was not caused by the plaintiff being hurt on duty.

32 On 22 September 2010 the plaintiff appealed the decisions of the Commissioner's delegate consent orders whereby both infirmities (lower back and neck) were determined to have been caused by the plaintiff being hurt on duty. On 25 August 2011, there was a determination by the defendant that:

(1) In terms of s 10(1A)(b) PRS Act to increase the plaintiff's superannuation allowance to 78.55% (the appealed decision); and,

(2) In terms of s 10(1D) PRS Act, to commence such increase on 6 September 2007.

33 The plaintiff's condition continued to worsen during 2011, 2012 and 2013. Some relief was obtained in relation to the plaintiff's left knee by reason of the surgical procedure of 28 November 2011, although the plaintiff said his problems in relation to his left knee giving way and being painful were ongoing.

The plaintiff's infirmities from 6 September 2007

34 The plaintiff's infirmities from 6 September 2007, which have been listed by counsel for the plaintiff in his written submissions, include:

(i) The neck:

(a) Pain and discomfort varying in intensity including trouble sleeping.

(b) Trouble getting comfortable in a seated position.

(c) Cannot drive any distances.

(d) Pain at the base of the neck.

(e) Pain in the left side but also the right and it is sensitive to touch.

(f) Radiates and pulses from the inside of the neck.

(ii) The back:

(a) Lower back pain at about the height of the bottom of the ribs.

(b) Pain in the middle of the back tending to be in the middle getting sciatica into buttocks and in both legs.

(iii) Left Knee:

(a) Loss of strength in knee.

(b) Discomfort and pain in knee.

(c) Occasional giving way.

(d) Unreliability.

(e) Unreliability particularly with stairs.

(f) Need to hold onto rail or wall when going up or down stairs.

(g) Gradually deteriorating.

(h) Excessive walking would cause fluid on the knee.

(i) Constantly clicking.

(j) November 2011 surgery initially perceived as successful for approximately six months, with subsequent deterioration.

The plaintiff's neck problems

35 The plaintiff described his current neck problems as follows:

"A. I, I have pain and discomfort in my neck. It, it varies to the, to the severity of the pain. I take pretty strong pain medication to relieve those symptoms. I, I had up until 18 months ago been carrying out a regime of exercises at the gym until the pain got exacerbated by doing those exercises and the, the things I'd been recommended by the physio, and I, I subsequently stopped doing those things and, you know, my neck has, I feel, pretty rapidly decreased in its, in, in how it usually, you know, was.

So, like I say, the pain and discomfort are, are at a pretty bad level and I, I have trouble sleeping now. I have trouble getting comfortable, you know, just in a seated position. I can't drive for any distance. I've sought to have a surgery outcome for it because it, like now it's just at the worst level of pain that it's ever been at and nothing seems to be able to, you know, with regard to physio or remedial massage or acupuncture, seems to assist it." (T 30)

36 The plaintiff said that this priority was his neck problem, which was more serious than his back problem. He went on to say at T 32:

"A. When my neck pain's severe I don't seem to be able to sit, I don't seem to be able to lie for any great length of time and in fact if on some, or most occasions if my neck pains really severe I can't lay down. On one occasion I've gone to my father's house and slept in one of his recliner chairs. It, I can get at an angle where there's not as much pressure on my neck.

...

Q. What about lifting and carrying things, are there difficulties with that?

A. I can't. I can't lift or carry things and, and would have, will avoid them cause I mean it, it will aggravate my neck. I mean just in over time I've noticed that doing certain things will, will aggravate it. Any, any turning movement I do at all with carrying anything are more, more than likely to set off the severe pain."

37 These problems prevented the plaintiff from operating his computer for any extended period if his hands were "playing up" (T 32). He had problems looking after his six month old baby, who weighs 9kgs (T 32-33) and driving for long periods (T 33-34).

The plaintiff's back problems

38 The combination of the neck problems (referred to above) and back pain meant that at times the plaintiff was unable to get out of bed (T 36). When completing courses, he had required special assistance, including being able to sit or stand when he was in pain, or having lessons sent to him when he was too ill to attend the course.

The plaintiff's left knee problems

39 As a result, the plaintiff's problems with his left knee, on 28 November 2011 he underwent a surgical procedure (ACL reconstruction). He last saw the knee specialist in April 2012.

The medical evidence in these proceedings

40 The medical evidence in these proceedings is unusual in that both the plaintiff's medical evidence (being the report of Dr Mastroianni filed 15 February 2013) and the defendant's expert (Dr Dryson, being his report of 4 June 2013) considered that the plaintiff now has 100% incapacity for work outside the police force. The issue of contention in relation to the medical evidence relates to the circumstances in which Dr Dryson later changed his mind in relation to these findings, after he saw some still photographs of the plaintiff taken during a surveillance operation.

41 I shall first set out the report of Dr Mastroiannai.

Dr Mastroianni's report

42 Dr Mastroianni's report states that the plaintiff's neck symptoms have worsened and he now has objective evidence of radiculopathy and weakness in the left hand, as well as a mechanical back problem secondary to lumbar disc disruption. As a result, he now considered the plaintiff to be unfit to work (p 7 of his report, Exhibit A). He went on to explain:

"3. Taking account of only those limitations arising from the infirmities, please describe how Mr Perrin's capacity for work is affected.

Because of the knee injury, he has a problem with stairs, squatting and running. The knee condition also restricts heavy lifting. He cannot work on stepladders or on heights as the knee gives way.

Both the neck and back conditions restrict heavy lifting, working in confined spaces and doing repetitive bending and lifting. The neck condition restricts working in situations requiring fixed neck postures or requiring full flexibility and movements of the neck.

4. What kind of work (if any) could Mr Perrin currently undertake in a labour market that is reasonably open to him, taking into account his skills, education, experience and qualifications, interests and aptitude, and his infirmities?

Mr Perrin is permanently unfit for any physical work. As stated, he cannot work as a police officer. He cannot work as a printer machinist because of the restrictions posed by the various injuries as outlined above.

He could do office based work. He may have the potential to do full-time office work provided he has the flexibility to move around as he is not able to sit all day and work on the computer all day. In all probabilities, he has the capacity to work at a desk five hours a day, five days per week.

He would need to take regular rest periods to relieve both the neck and back problems which are aggravated by prolonged sitting and fixed postures." (Exhibit A, p 39-40)

Dr Dryson's evidence

43 In his report of 18 February 2011, Dr Evan Dryson has summarised the findings of the plaintiff's experts, and his own findings, as follows:

"Dr Mastroianni, Occupational Physician, in his report of 24 November 2010 states that Mr Perrin is permanently unfit for any physical work but is able to do office-based work. He estimates five hours a day, five days a week, which is essentially the same as my own estimation.

The report by Mr Michael Fearnside, Neurological Surgeon, dated 29 June 2010 states "he might be fit for some sedentary type of part-time work" which again is in line with my own opinion.

The report by Dr Anthony Christie, Occupational Physician, dated 24 July 2009 does not comment on work capacity.

The report by Dr James Vote, Orthopaedic Surgeon, 10 October 2008 does not express an opinion on work ability.

The report by Dr J S Scougall, Orthopaedic Surgeon, dated 28 February 2006 does not express an opinion on work capability other than indicating that he is unfit for operational duties as a police officer.

My conclusions therefore do not differ from those of other reports about the applicant." (Exhibit 4, pp 18-19)

44 In a follow-up report dated 4 June 2013, Dr Dryson states:

"I would like you to re-examine Mr Perrin and let me have an update on your earlier report and your advice as to whether there has been any deterioration since you last saw Mr Perrin and if so to what degree. Your estimate as to the percentage incapacity for work outside the Police Force is requested where 0% = Nil incapacity and 100% = total incapacity.

There has indeed been significant deterioration in Mr Perrin's condition since I saw him last. The operation note in relation to the left knee shows that he has Grade 3/4 articular cartilage wear, i.e. he has significant osteoarthritis of this knee.

The most important issue however is the marked deterioration in the degenerative disease of the spinal spine, i.e. cervical spondylosis. This is causing nerve root compression at C6 and CI with significant impairment in sensation on the left hand, and wasting of the intrinsic muscles of the left hand. The impairments are now significant. Because of the effective loss of use of the left hand Mr Perrin is not suited for work of a clerical type nature.

Because of the osteoarthritis of the left knee he will not be able to undertake work which involves walking, standing, lifting and carrying etc.

It is my opinion that Mr Perrin now has 100% incapacity for work outside the Police Force." (Exhibit 4, report of 4 June 2013)

45 This would be a straightforward case if the medical evidence were to stop at this point. However, subsequent to providing this report, Dr Dryson was shown a series of still photographs in which he observed the following:

"During the course of the video footage, I was able to observe the following:

- 180 degrees of abduction and flexion of the right arm. On occasion the arm was fully extended directly upwards above his head.

- 180 degrees of abduction and flexion of the left arm. Again on occasion the arm was fully extended directly upwards above his head.

- On several occasions Mr Perrin was observed to bend forward, i.e. forward flex, to 90 degrees, sufficient to bring his fingertips to his ankles.

- Mr Perrin was observed to twist and fully rotate the lumbar spine while casting and while reaching for a drink bottle.

- Mr Perrin was observed to stand on sloping rock.

- He was observed to crouch and twist at the same time while reaching down to the ground.

- He was observed to manipulate the fishing line and rod using fine motor coordination of both hands.

- He was observed to stand continuously for one period of almost 1 hour (11:26am-12:22pm)."

46 Dr Dryson's comment concerning these issues was as follows:

"It is clear that Mr Perrin has significantly better range of movement in the neck, shoulders and low back than was indicated at the time of my two examinations and the range of movements in these areas would be considered to be normal. Having said this, however, there was some objective evidence of impairment at the time of my examination. He does have wasting of the muscles of the left hand consistent with a cervical nerve root compression. He does have grade 3 findings of left knee osteoarthritis at the time of his operation.

Nevertheless, based on the video footage, I am no longer of the opinion that he is 100% impaired in respect of work outside the police force.

In my opinion, he is capable of work of sedentary to medium physical demand where there is ability to vary posture on a regular basis."

Dr Dryson's oral evidence

47 Before Dr Dryson gave evidence, counsel for the defendant requested an adjournment so that Dr Dryson could watch the surveillance video. The following questions were then asked:

"Q. Doctor, on page 2 of that report you state, "During the course of the video footage I was able to observe the following", and then there is a number of dot points, do you see that?

A. Correct.

Q. You have just given evidence that you had extracts of the video shown to you, what do you mean by that?

A. I mean that the video was watched by my secretary and another staff member here in Sydney. They extracted still pictures showing various of these manoeuvres that I have indicated here and they were sent to me for my observation.

Q. It was on the basis of those still pictures and your understanding of the video that you formed your opinion?

A. Correct.

Q. Before your Honour came on the bench before you giving evidence, have you had the opportunity of actually watching part of the video which is MFI 1?

A. Yes I had.

O'ROURKE: I object to this, your Honour. This is not a correct, this is a patch up job." (T 146)

48 I had permitted the leading of this evidence on the basis that Dr Dryson had made a mistake. Dr Dryson went on to say that he had not watched the surveillance tape at all. The observation in question had been made by his secretary.

49 An application was made to lead evidence of Dr Dryson having viewed some unspecified but small portions of the surveillance film in the courtroom, he should be permitted to give evidence of his observations of the plaintiff on the surveillance film, and to set out, from the witness box, what his views were if those views were based upon having watched the surveillance film (as was incorrectly stated in his report), by way of supplementing the report.

50 Rule 31.10 Uniform Civil Procedure Rules 2005 (NSW) provides:

"31.10 Plans, photographs, audio-visual recordings and models

(1) At least 7 days before the commencement of a hearing, a party who intends to tender any plan, photograph, audio-visual recording or model at the hearing must give the other parties an opportunity to inspect it and to agree to its admission without proof.

(2) A party who fails to comply with subrule (1) may not tender the plan, photograph, audio-visual recording or model in evidence except:

(a) in the case of a prescribed item-where the court is satisfied that the party had a legitimate forensic purpose for not giving the other parties an opportunity to inspect the item, or

(b) in any other case-by leave of the court.

(3) This rule does not apply to any proceedings entered, or intended to be entered, in:

(a) the Commercial List or the Technology and Construction List in the Supreme Court, or

(b) the Commercial List or the Construction List in the District Court.

(4) In this rule:

"audio-visual recording" includes a sound recording or a record of moving images (or both) whether stored on film, audio or video tape, digitally, electronically or by any other means.

"prescribed item" means a photograph or audio-visual recording that was made or obtained in connection with the relevant proceedings, by or at the request of a party, for the purpose of testing the credibility of a witness at the hearing."

51 There may well be circumstances in which a medical expert may be permitted to express a view upon surveillance film, particularly if the circumstances in which it has been provided to the opposing party were such that there had been insufficient time for a report to be provided. In the present case, the surveillance film had not been provided to the plaintiff prior to the hearing, and the plaintiff was at a disadvantage of having no medical evidence in reply. In addition, the date of the surveillance film (April 2012) meant that the plaintiff had no independent recollection of the day in question.

52 However, the real difficulty was that Dr Dryson had prepared his report on the basis that he had seen the surveillance film. This was not a mistake or a gap in a report which could be rectified; this was a circumstance where a medical expert having expressed an opinion upon material which he had not in fact seen now sought to cure this problem by giving his evidence from the witness box.

53 Although counsel for the defendant did not refer to this provision at the time, s 142J District Court Act 1973 (NSW) was later cited to me as being a reason why a greater degree of flexibility applies to proceedings brought under the residual jurisdiction. Section 142J District Court Act 1973 (NSW) provides:

"142J Decisions of Court when exercising residual jurisdiction

(1) The following apply in the exercise of the Court's residual jurisdiction:

(a) a decision of the Court in any matter is to be on the real merits and justice of the case,

(b) the Court is not bound to follow strict legal precedent,

(c) subject to Subdivision 3:

(i) a decision or proceeding of the Court is not vitiated by reason of any informality or want of form, and

(ii) a decision or proceeding of the Court is not liable to be appealed against, reviewed, quashed or called in question by any court, and

(iii) no proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of any decision or proceeding of the Court relating to, or on the face of the proceedings appearing to relate to, any matter within its residual jurisdiction, and

(iv) the validity of any decision or proceeding of the Court cannot be challenged in any manner.

(2) Nothing in subsection (1) prevents the Court from reconsidering any matter that has been dealt with by it in its residual jurisdiction (or had been dealt with by the Compensation Court), or from rescinding, altering or amending any decision previously made or given by the Court in the exercise of that jurisdiction (or by the Compensation Court), all of which the Court has authority to do.

(3) In this section, "decision" includes award, order, determination, ruling and direction."

54 While this provision means that the court is not bound to follow strict legal precedent and that a judgment of the court is not vitiated by reason of informality, the provisions of the Uniform Civil Procedure Rules 2005 (NSW) in relation to expert witnesses, and the requirement for proceedings to be "just" (s 56 Civil Procedure Act 2005 (NSW)) mean that experts in this jurisdiction should be required to give their evidence with a similar degree of precision to that which is expected in other jurisdictions.

55 The decision of Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [37] emphasises that the prime duty of an expert in giving opinion is to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's opinions. In addition, the High Court considered that the trier of fact should not draw upon his/her own knowledge or understanding of medical issues. This is what makes the consideration of the surveillance film by me particularly difficult.

56 The photographs which Dr Dryson saw are in evidence. All they demonstrate is that the plaintiff is capable of squatting, casting a fishing line, bending over from the wist and performing other tasks which the plaintiff does not deny that he can do.

57 Where an expert changes his or her opinion, the circumstances in which that opinion has been changed, together with an accurate outline of the evidence upon which that change is based, must be given: Joseph Street Pty Ltd v Khay Tek Tan [2010] VSC 586 at [98].

58 Not only has Dr Dryson not exposed his reasons for changing his views (as to which, see Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 733), but he has based his opinions upon evidence which is not only scanty but inaccurately stated.

59 As a result, the degree of weight I could place upon Dr Dryson's final report, as opposed to the detailed consideration set out in his report of 4 June 2013 is so slight as to be non-existent.

60 The facts in this case are similar to Checchia v Insurance Australia Ltd t/as NRMA Insurance (2013) 64 MVR 36 at [93], where a medical expert revised his opinion after seeing video surveillance film. The new opinion was contrary to other medical opinions given in evidence. Hall J noted at [109]:

"[109] Examination of Dr Matheson's oral evidence does not, as earlier indicated, provide any basis or explanation for his revised opinion in his 12 December 2006 report. As has been established, the prime duty of an expert in giving opinion evidence is to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions: Makita (Aust) Pty Ltd v Sprowles per Heydon JA (as his Honour then was); Dasreef Pty Ltd v Hawchar [2011] 243 CLR 588 at [37]."

61 In these proceedings, the additional difficulty is that Dr Dryson changed his view based on extremely limited evidence, namely the still photographs and a very brief summary of what was on the film provided by his secretary. In those circumstances, he should have frankly acknowledged that he had not seen the surveillance films himself.

62 Unlike Dr Dryson, I have been able to watch the surveillance films to determine whether or not the film demonstrates the plaintiff performing tasks which were inconsistent with his description of his limitations and disabilities when describing these to the doctors who have provided reports for these proceedings. I have also had the benefit of seeing the plaintiff cross-examined about extracts of the video, and then watching the whole three hours of film with an index of the particular incidents to note.

63 My observations of the plaintiff in these films is that he is seen standing on a rock fishing. On occasion he swings the fishing rod and crouches down without difficulty. He is seen carrying a backpack on his back and an aluminium chair in one hand while en route to the fishing spot. He said in cross-examination that the backpack contained a few light items, that the chair was aluminium and light, and that the track he walked along (and the rock from which he fished) were level and easy to walk on.

64 Surveillance film commonly shows people going about their daily activity without apparently difficulty. This is film in that category. The plaintiff is not seen lifting heavy objects, or engaging in sporting activity, or performing tasks which give the lie to his objectively demonstrable physical incapacities. Having had the opportunity of seeing the still photographs from which Dr Dryson formed his views in the context of film, I am satisfied that Dr Dryson has erred in making the findings that he did, not least because they were based on scanty and inaccurately stated evidence.

65 This means that the medical evidence paints a clear picture of the plaintiff as being currently unfit for work outside the police force.

Other medical evidence

66 I briefly note other medical evidence on this issue as follows:

(a) In his report of 22 February 2009, Dr Coutis (Exhibit A) considered that even with a comprehensive rehabilitation program, any prognosis for return to full time work would be "extremely guarded";

(b) Dr Vote in his report of 10 October 2008 described the plaintiff's prognosis in relation to the cervical spine as "poor";

(c) Dr Diwan in his report of 13 September 2012 suggests the need for anterior cervical decompression and fusion at C6/7 and anterior cervical decompression and disc replacement at C5/6. This report confirms Dr Mastroianni's opinions.

(d) Dr Rowen, in his report of 27 April 2012, provides information about the surgical procedure.

The plaintiff's evidence of incapacity for work outside the police force

67 Notwithstanding these medical findings, if the plaintiff were able to perform work in a manner consistent with his disabilities, this would be a relevant factor to take into account.

68 The plaintiff gave evidence about obtaining qualifications as a trade lithographic printer including details of positions he would have been able to obtain and details of jobs that he had made enquiries about (Exhibit C). Counsel for the plaintiff submits, and I agree, that if the plaintiff were not suffering from these infirmities, he would be capable of earning a salary in excess of $95,000 per annum. His evidence is that he is not able to perform this work:

"Q. I want to take you specifically to three, Mr Perrin. The first is the one appearing on the first page, the digital print operator.

A. Yes.

Q. That position, you've had the opportunity of reading the details of that position?

A. Yes.

Q. Is that job for which you hold appropriate qualifications?

A. Yes.

Q. Is it a job that you would otherwise think yourself capable of doing?

A. More than capable.

Q. Why would you see yourself as not being able to do that job now?

A. The same thing as a digital printer, I would have difficulty with any - any heavy equipment which is required in setting up a press and completing a press job. I also have difficulty in operating in a confined space for the same reasons, and I - I physically couldn't manoeuvre myself around a printing press. Yeah. Bearing in mind that some of the components on these presses are, what, 50 kilos which you've got to handle, you know, on a regular basis, you know, throughout a day, a working day.

Q. What do you think would prevent you from handling that sort of weight?

A. I couldn't - couldn't physically do it.

Q. Why?

A. Because of my back, I - I couldn't lift, because of my knee and back, and the same with the compression on my neck, I - and - and the same, you know. They literally - you - you go from ground level to the third floor on - on a press on a six colour and, haven't previously done so, I - I know I couldn't physically manoeuvre around a press.

Q. Has that been the case since 2007?

A. Most certainly, yes." (T 51-52)

69 The combined impact of the plaintiff's three certified infirmities, both individually and collectively, make the plaintiff totally unfit for work outside the New South Wales police force. No employer, whether commercially minded, benevolent or otherwise, would be willing to employ a person with so many ongoing physical problems.

70 I am satisfied that the plaintiff's infirmed incapacities have been at this level for some time. His knee problem appears to have been significantly worse prior to surgery. I am satisfied that at all relevant times since September 2007 the three infirmities which have been certified render him totally incapacitated for work outside the New South Wales police force.

71 Accordingly, I am satisfied that there should be a determination and increase of the plaintiff's superannuation allowance to 85% (s 10(1A)(b) of the PRS Act) to be paid on and from 6 September 2007.

72 I briefly note that, if I have erred in this regard, I would have accepted the alternate submission that, if the plaintiff were capable of employment in light sedentary part time employment, such employment would be that of an administrative officer or general clerk. The vocational capacity assessment tendered by the defendant (Exhibit 5) indicates that such a position (on a 20-hour a week basis) would result in a payment of $546.84 per week gross, being an annum income of $28,435. When compared to the income the plaintiff could have earned had he left the police force in an uninfirmed state, would equate to an incapacity for work outside the New South Wales police force of approximately 75%, which would justify an increase of the plaintiff's superannuation allowance to 82%.

Orders

(1) Set aside the decision of the defendant made on 6 September 2007 insofar as the plaintiff's pension entitlements are concerned.

(2) I determine the plaintiff's pension be increased to 85% (s 10(1A)(b) of the Police Regulation (Superannuation) Act 1906 (NSW)), to be paid on and from 6 September 2007.

(3) The defendant pay the plaintiff's costs.

(4) Exhibits retained for 28 days.

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Decision last updated: 11 October 2013