District Court New South Wales

• Medium Neutral Citation: Green v State Super SAS Trustee Corporation [2013] NSWDC 200
• Hearing dates: 23, 28 August 2013
• Decision date: 28 August 2013
• Before: Neilson DCJ

Decision

I set aside the decision of the defendant made on 25 October 2012 and I determine that the plaintiff's pension be increased to 92.5% of the attributed salary of her office by reason of the fact that she was exposed to risks to which members of the general workforce would not normally be required to be exposed in the course of their employment

I order the defendant to pay the plaintiff's costs.

• Catchwords: POLICE - Member of NSW Mounted Police Section (the Mounties) injured when she fell from horse during training - PSAC certified disabled member incapable of performing duties of office on account of two specified infirmities - Infirmities caused by being HOD - Disabled member resigned from police force - Disabled member totally incapacitated for work outside police force - Special risk benefit
• Legislation Cited: Police Regulation (Superannuation) Act 1906; Workers Compensation Act 1987
• Cases Cited: Conway v SAS Trustee Corporation [2012] NSWDC 249; 11 DDCR 232; Grech v Commissioner of Police [2004] 1 DDCR 242; Tanks v SAS Trustee Corporation (NSWDC RJ894/03 Neilson DCJ, 1 September 2004, unreported); Thoms v SAS Trustee Corporation (NSWCC No. 7721/98 Geraghty CCJ, 5 July 1999, unreported); Walsh v SAS Trustee Corporation (2004) 1 DDCR 438
• Category: Principal judgment
• Parties: Elizabeth Green (Plaintiff); State Super SAS Trustee Corporation (Defendant)
• Representation: Mr T Ower (Plaintiff); Mr R Perrignon (Defendant); Harris Wheeler Lawyers (Plaintiff); Rod Blume (Defendant)
• File Number(s): RJ669/12

Judgment

1 The plaintiff, Ms Elizabeth Green of Lower Southgate via Grafton, is a former constable of police. She was attested as a probationary constable of police on 26 October 1984 and thereupon become a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906 (the Act).

2 For the first 20 months of her service with the New South Wales Police the plaintiff performed uniformed duties at both The Rocks Police Station and at Kings Cross Police Station. She then joined the New South Wales Mounted Police Section, commonly referred to as the "Mounties". She joined the Mounties in approximately mid-1986.

3 The plaintiff was injured on 8 June 1988 when she fell from a horse during training at Centennial Park. Essentially, the plaintiff injured her head, her neck and her right shoulder. She was unconscious for some time and was taken by a police vehicle to St Vincent's Hospital where she was admitted. She was released from the hospital on 11 June 1988. She eventually returned to restricted duties with the Mounties, essentially only doing clerical work, and was not involved in riding any horses. She was then transferred to the Hornsby Police Station where she carried out community relations work, such as lecturing at schools. She then became pregnant and took maternity leave, but, rather than returning to duty after her maternity leave, she resigned on 26 April 1991.

4 On 25 March 1998, the Police Superannuation Advisory Committee (PSAC) approved a payment to the plaintiff under s 12D a lump sum for 17.5% permanent impairment of her neck and for 12.5% loss of efficient use of her right arm at or above the elbow. There was also a payment made to the plaintiff equivalent to a benefit under s 67 of the Workers Compensation Act 1987.

5 On 23 May 2011, the administrator of the Police Superannuation Fund received an application for a certificate of incapacity under s 10B(2) of the Act. On 19 January 2012, PSAC certified that the plaintiff had been incapable, as at the date of her resignation, of performing the duties of her office on account of the infirmities of a chronic musculo-ligamentous strain of the cervical spine and gross dysfunction of the right shoulder with a propensity towards subluxation. On 24 January 2012, the Commissioner of Police determined that both those infirmities had been caused by the plaintiff's having been hurt on duty on 8 June 1988 when she fell from the horse at Centennial Park.

6 On or about 4 April 2012, the administrator of the Police Superannuation Fund received an application for a pension increase by the plaintiff pursuant to s 10(1A)(b) of the Act. On 28 June 2012, PSAC decided to increase the plaintiff's pension to 85% of the salary of her office on the basis that she was totally incapacitated for work outside the police force as a result of the two specified infirmities. On 5 September 2012, the administrator of the Police Superannuation Fund received an application from the plaintiff to increase her pension beyond 85% pursuant to s 10(1A)(c) of the Act. On 26 October 2012, PSAC, as the delegate of the defendant, refused that application. The plaintiff, being aggrieved by that decision, brings an application to this Court for an order that the decision of the defendant made on 26 October 2012 be set aside and that the plaintiff be awarded an increase in her pension in an amount in excess of 85% of the salary of her office.

7 At the time the plaintiff served in the Mounted Police Section, there were 30 troopers in the Section. Training and drill were generally carried out on Tuesdays and Wednesdays of each week. As many members of the Mounted police section as were available attended such training drills.

8 The duties of a trooper in the Mounted Police Section fall into a number of different categories. Firstly, there is what could be called "ceremonial" work, such as escorting the Governor, members of the Royal Family or visiting dignitaries in processions. Most members of our community would be aware of mounted police wearing old-fashioned solar helmets and carrying lances topped with blue and white pennons escorting an open vehicle, for example, containing the Governor progressing from Government House to Parliament House for the State opening of Parliament.

9 The next category of work can be described as "entertainment", when the Mounted Police Section perform drills on horses to entertain the public at functions such as the Royal Easter Show. Another way of describing those items of entertainment is the provision of spectacles.

10 The third item of work is carrying out patrols in different areas, especially near the police barracks at Surry Hills. Those areas include Kings Cross, The Rocks, Redfern, Bondi and the central business district of Sydney. In addition, police could be taken some distance from the police barracks to perform mounted patrol work on special occasions. The plaintiff mentioned one such patrol at Merrylands.

11 The next item of duty performed is traffic control work, not only control of vehicular traffic but also pedestrian traffic on special occasions when large crowds gather.

12 The final item of duty could be described as "crowd control work", when there are demonstrations or outbreaks of public disorder such as brawls and riots. In such circumstances, the mounted police often work in conjunction with members of the TRG.

13 The plaintiff was injured when she was training to perform a drill that was part of a display or spectacle. The particular manoeuvre that was being performed at the time of the plaintiff's injury was described by her as Red X. It was, to use the terminology of the plaintiff, part of a musical ride. This musical ride involved either 12 or 16 troopers. On 8 June 1988, 16 troopers were involved. Those troopers were divided into four sections, each of four troopers.

14 The relevant manoeuvre started when the four sections were all riding in file, one section behind the other. The plaintiff was riding second in the first section, that is, second from the front, in a long line or file of 16 mounted police. They were riding at a gallop after going through the usual manoeuvre of increasing speed from walk to trot, to canter, to gallop. At the gallop, the troopers were required to maintain a distance of four feet between the nose of one horse and the croup of the horse in front. A command was then given by the leader of the four sections, Sergeant Eyb. The command was to "form sections". The point of the manoeuvre was to make one long file of 16 galloping troopers to form a square with one section, each of four troopers on each side of the square. Whether this manoeuvre replicates infantry manoeuvres of the eighteenth and nineteenth century is a matter for military historians.

15 The first section, which clearly included the plaintiff, turned to the left in order to form the left-hand side of the square. The second section of four manoeuvred to the right to form the right-hand section square. The third section of four advanced straight ahead to form the top of the square and the final section manoeuvre from file into rank to form the bottom section of the square. Each of the troopers were required to face not outwards, as if they were infantry about to repel cavalry, but rather inward, in order that further manoeuvres could occur. Clearly, the plaintiff was required, from galloping four feet behind Sergeant Eyb's horse, to turn to her left, to then straighten and then to turn to her right to bring her horse alongside that of Sergeant Eyb in order to form the left-hand side of the square, such that they were in rank rather than in file. This manoeuvre is displayed graphically in exhibit E, a sketch plan made by the plaintiff.

16 The procedure being undertaken on 8 June 1988 was not completed by the plaintiff. On that day she was riding a thoroughbred gelding known as "Parade". The plaintiff told me, and there was no challenge to her evidence in this regard, that the horses were excited as they knew what was about to occur. As her section was turning to the left, the section behind her section commenced to turn to the right. One of the horses in the section that was turning to the right, leapt sideways. That caused the plaintiff's horse, Parade, to take fright. Parade took, according to the plaintiff, a great big leap to the side opposite to that to which the horse turning right had taken, a great big leap to the plaintiff's left. That caused the plaintiff to lose her seat on Parade and she fell to her right-hand side and landed on her shoulder and neck. As the plaintiff told me, this fall happened in "mid-gallop" in "the blink of an eye". The plaintiff was wearing a regulation Australian Standard safety helmet, fortunately not an old-fashioned white solar helmet. The plaintiff lapsed into temporary unconsciousness. Her next memory was of lying on the ground and being surrounded by her colleagues. She was then taken by the "police truck" to St Vincent's Hospital. Whilst at the hospital, she was observed to have some grand mal seizures or fits that would indicate some brain injury. In one of those fits, the plaintiff bit off part of her tongue. The plaintiff has been left with residual symptoms on her neck and right shoulder, which clearly, it is accepted by the defendant, totally incapacitate her for work.

17 The question for my determination is whether the plaintiff was "hurt on duty because [she] 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". Once I make that decision, I then have to determine an amount of additional salary that the plaintiff is entitled to "commensurate ... with the risk to which [she] was ... required to be exposed". This has raised a very nice legal argument. I use the word "nice" with both its meanings, meaning one that is both fine or nicely balanced, and one that is of interest and appeal to those who have argued it and who must decide it.

18 Learned counsel for the defendant has provided me with written submissions, which have been marked for identification 1, and will be left with the papers. The first part of the defendant's submissions concerns my powers on this application. Initially, s 21 of the Act provided for an "appeal". However, it was held many, many years ago that that was really a hearing de novo rather than an appeal stricto sensu. Subsequently, the terminology of the section was changed to provide for an application to be made to the Court. The change in terminology really only acknowledged the fact that the duty of the Court, in an application of this nature, was to provide a hearing de novo, not limited to matters considered initially by the defendant.

19 As to the meaning of "required to be exposed" within s 10(1A)(c), see Grech v Commissioner of Police [2004] 1 DDCR 242. As to the meaning of the words "the general workforce", there is some controversy in the authorities. I have most recently dealt with that issue in Conway v SAS Trustee Corporation [2012] NSWDC 249; 11 DDCR 232, which, much to my surprise, learned counsel for the defendant accepted was a correct statement of law. I hazard the observation that the SASTC in some further piece of litigation might submit otherwise.

20 The essence of the defendant's submission is contained in [38] of the defendant's written submissions. It is this:

"The first issue is informed by the nature of the risk to which the claimant was exposed. The second is informed by the degree of risk."

Mr Perrignon's formulation I find to be a very attractive one. However, it appears to me that the problem is in specifying or identifying the nature of the risk involved. Mr Perrignon identified the nature of the risk as the risk of falling from a horse. The question I must ask myself is, is that a correct categorisation of the risk to which the plaintiff was exposed?

21 No one would argue that a constable of police who was lawfully involved in a high speed police pursuit in a motor car and, because of some obstruction on the road, malfunction of the police vehicle or interference from the offender seeking to escape apprehension, was injured, was not exposed to a risk to which members of the general workforce would normally not be exposed. However, it is arguable that the risk of being involved in a motor vehicle accident in the course of one's employment would not carry such a risk. For example, a police constable driving a police vehicle or indeed the observer or passenger in a police vehicle could be injured when some errant motorist, who failed to keep a proper lookout, ran into the back of the police vehicle whilst it was proceeding in normal traffic. Equally, some constable of police proceeding in a normal line of traffic, in no circumstance of urgency, merely moving from one place to another, might himself be distracted, fail to keep a proper lookout, and collide with another motor car driven by a member of the general public.

22 It appears to me that the question of "fault" in a motor vehicle accident has nothing to do with provision with which I am now seeking to construe. To state that the risk of being involved in a motor vehicle accident was a risk to which members of the general workforce would normally not be required to be exposed is, in my view, extremely tenuous. Any person who drives a motor vehicle on a highway exposes himself to various risks. People who drive in the course of their employment expose themselves to the risk of being involved in a motor vehicle accident. There are many members of the general workforce who are exposed to the risk of being involved in a motor vehicle accident. They obviously include truck drivers, taxi drivers, bus drivers, couriers, travelling salesmen, plant operators and many workers of various descriptions who must move from one place to another in the course of their employment. It is not unusual, for example, for tradesmen who are employees to move between various sites during the course of the day, whether they are building sites or, for example, an electrician moving from one house to another house, then to a third house, to carry out ordinary electrical repairs for the occupier of the house.

23 To place the risk of a police constable who was involved in the dangerous high-speed pursuit in the same category as the policeman who was proceeding in a car in the normal course of traffic is, in my view, quite incorrect. The risk involved in the high-speed police pursuit is completely different to the risk run by a policeman driving a car in normal traffic with no sense of urgency or danger. To place both those police constables in the same category, the risk of being injured in a motor vehicle accident, is, in my view, quite erroneous.

24 It therefore appears to me that there is a need for specificity in describing the risk to which a person such as the plaintiff was exposed. Furthermore, specifying with precision the nature of the risk enables one to reconcile the authorities. For example, one need only refer to the decision of Geraghty CCJ in Thoms v SAS Trustee Corporation (NSWCC No. 7721/98 Geraghty CCJ, 5 July 1999, unreported), which has long been acknowledged as a leading authority on the interpretation of s 10(1A)(c) of the Act. [10] and [11] of his Honour's reasons are those usually cited. The facts, however, need to be considered. Commencing at [6], his Honour said this:

"Mr Thoms was a policeman from 1958. He injured his back on 21 May 1981 in the process of dealing with a man who was described as totally feral. This man lived in an area near the Warrumbungle Ranges, which was described as rugged, well-forested terrain in a remote area. He had failed to return some equipment which was of some interest to Mr Thoms, as one of the two policemen at Gulargambone Police Station.

In taking steps to recover this equipment, it came to his notice that Bathurst detectives were also interested in locating the man and ensure that he return to the police station for interview. Mr Thoms located the gentleman and with him proceeded to the property to find the equipment at a location where he had been preparing a cave in which to imprison a girl whom he intended to rape. This cave was about 8 or 9 km over very mountainous roads. He travelled over large boulders and described it as a place which should have been approached on foot, but which could be approached by four-wheel drive only by a person who knew the terrain.

The appellant was required to climb down over the escarpment to a location where the man had been preparing the cave, about 15 to 20 m down, across an angle of about 70 degrees, where he had secreted a generator, a mattress and a jackhammer. The climb down was necessary, first of all to take the photographs which would be required at any hearing of charges for rape, and also to recover the equipment. He began to carry the jackhammer up to the top of the escarpment. It was heavier than a bag of cement. He said he struggled up the incline with the jackhammer but when he approached the top, he lost his footing and he was pulled backwards down the hill."

Further, at the end of [12] of his reasons, his Honour said this:

"There was an urgency about this particular work; there was an immediacy which required him to perform tasks which, in normal circumstances, a worker may be able to find an assistant, or to delay and find some other less risky way of achieving the end.

There was a certain immediacy which required the police officer to do what he did and to expose himself to a risk, in my opinion, to which members of the general workforce would not and should not be exposed in the course of their employment."

25 There is force in the submissions of learned counsel for the plaintiff, Mr Ower, that if one categorised the risk to which Mr Thoms was exposed as the risk of injuring one's back when carrying a heavy object, then one could not describe such a risk as one to which members of the general workforce would not normally be required to be exposed. Many workers, particularly on building sites, carry heavy objects. Many people who work in factories carry heavy objects. There is also force in Mr Ower's argument that if one refine the risk further, to the risk of injuring one's back whilst carrying a heavy object over rough or uneven terrain including steep terrain, such might not be seen to be a risk to which members of the general workforce would normally not be required to be exposed. In particular, many members of the workforce in the construction industry carry heavy objects over rough and uneven ground. Many people involved, for example, in the construction of roads, highways, dams and other earthworks, carry heavy objects including heavy tools over rough and uneven ground.

26 That which appears to have differentiated the risk to which Mr Thoms was exposed was the urgency and the immediacy of the task which he had to perform, which immediacy or urgency was not one to which members of the general workforce would normally be exposed. As his Honour pointed out, members of the general workforce could delay because there was no urgency or immediacy to seek assistance or to find an alternative system of work. Therefore, the risk involved in Thoms' case was the risk of injuring one's back whilst carrying heavy weights over rough and uneven terrain in circumstances of urgency or immediacy and without the possibility of any assistance being obtained or any alternative system of work being able to be adopted.

27 Similarly, one can approach my decision in Tanks v SAS Trustee Corporation (NSWDC RJ894/03 Neilson DCJ, 1 September 2004, unreported). The cases are legion, in which it is pointed out that members of the general workforce are often required to be exposed to loud noise such as to induce industrial deafness, formerly known as boilermaker's deafness. Indeed, the issue is discussed in Conway v SAS Trustee Corporation at [29] to [33]. In Tanks, the plaintiff's certified infirmities were caused by his having been exposed to the noise of two quick explosions at about 8.30 pm on the evening of 24 April 1993. The plaintiff, at that time, was the coordinator of the Transit Police at Lidcombe. He had held that position since January 1990. Commencing at [10], I set out the circumstances in which the plaintiff was exposed to these two quick explosions. Essentially, they were the explosions of detonators placed on a railway line. The detonators were commonly used to advise gangs of railway workers, in particular fettlers, of the approach of oncoming trains. Commencing at [12], I said this:

"12. On 25 October 1995 the plaintiff made a statement about the events of the evening of 24 April 1993. Paragraphs 10, 11 and 12 of that statement recite what occurred and I shall recite them in these reasons for judgment:

'We had climbed down onto track level and commenced to walk in different directions along the Bankstown line on the southern side of the tracks. Vince went easterly direction and I went in a westerly direction. I was in the vicinity of the last staunchion for overhead wiring and approaching the overhead bridge, when I heard a train approaching from the Birrong direction. I moved back towards the embankment for safety reasons, which is approximately one to one and a half metres south of the southernmost railway line.

The train approached [sic] at a moderate speed and when the driver's compartment at the front of the train came directly along side of me I heard two quick explosions, which immediately caused [sic] me to go deaf in both ears.

The train appeared to slow and then continued past me. As I could not hear I stood there for what appeared a short time before commencing to walk towards Collucio who at that time I think was walking in my direction. I was still suffering deafness, before a loud ringing in my ears. After about what appeared to me to be one to two minutes of complete deafness, my hearing started to come back at more or less the same time as the ringing took over. I cannot recall the exact conversation between Collucio and myself about this incident, but it was to the general effect of Vince checking to see if I was O.K. first, and then a general discussion, although I didn't see them, that the explosion was that of railway detonators. Due to being certain of the explosion being that of railway detonators, and the loud ringing in my ears, we return [sic] to the police vehicle without further inspection in that area.'

13. There in evidence photocopies of four photographs. The photocopies are not of good quality, however I infer from the photograph numbered 3, and from the general experience of any person who has ever ridden on the railways of Sydney that the area between the railway line and this embankment would be at a lower level than the railway line itself. Railway detonators had been placed on the line with a view to their exploding, the noise being, in theory, designed to warn both the train driver and the workmen working on the line, that, firstly, there were workmen on the line and, secondly, that the train was approaching. The inference I draw is that the plaintiff was standing beside the embankment probably with his feet at a lower level than the level of the railway line itself, that is the steel line, between one and a half metres from the railway line, and would have had his ears much closer to the detonators than, for example, the driver of the train or any passenger in the train."

In the next paragraph of my reasons, I quoted the subsection and continued thus:

"15. The first question for my determination is whether the plaintiff was exposed to a risk to which members of the general workforce would normally not be required to be exposed in the course of their employment. No doubt there are many members of the normal workforce who, with reckless indifference to punctuality, travel daily to and from work on railway trains. There are many railway commuters who have heard the noise of these detonators placed on railway lines. Equally, there would be many train drivers and train guards who have heard the noise of railway detonators and there were many fettlers and other railway personnel who would hear the noise of railway detonators. However the crew and the passengers in a railway train would be insulated from the noise of the detonation by the physical fact that they were above the detonation and by the steel undercarriage of the railway line and the steel and glass fabric of the railway cars. The railway cars themselves would insulate crew and passengers from the extent of the detonation. Equally, in the normal course of the operation of the railways those working on the line would be at some distance from the site of the detonation. The evidence does not disclose how far the detonators are placed from those working on the railway line, but one would think in the exercise of commonsense that it would be some distance, perhaps hundreds of metres, in order that those working on the line, alerted of the oncoming train by the noise of the explosion, would have time to remove themselves and any tools or equipment with which they were working from the line in order to enable the train to pass the area where they were working.

16. The plaintiff was placed in a position which no ordinary member of the workforce would normally be placed, that is, within one to one and a half metres of the site of the detonation, without any protection of his hearing, without any barrier to muffle the sound, and at a level where the sound of the detonation would be closer to his ears than it would be to any other person. Equally, the evidence in this case, and it is commonsense, indicate that members of the general public are not permitted on the railway reservation, that the only people who can be on a railway reservation at any time outside of being within a train, are railway personnel and members of the emergency services, and it is conceded by learned counsel for the defendant [Mr Ower] that the only person or persons who would possibly be patrolling railway lines at night would be members of the New South Wales police force."

28 In Tanks' case, the question was not the risk of being exposed to loud noise nor the risk of being exposed to the noise of railway detonators, but to the risk of being exposed to the noise of railway detonators at very close quarters without hearing protection and unexpectedly.

29 The current defendant argues that there are many professions who are normally required to be exposed to the risk of falling from a horse. In his submission, those who are exposed to the risk of falling from a horse are these:

"(a) professional polo players,

(b) professional jockeys,

(c) equestrian athletes and show jumpers,

(d) actors and stunt doubles,

(e) circus performers,

(f) horse trainers,

(g) drovers and cattlemen,

(h) farmers who ride horses, at muster or otherwise,

(i) professional rodeo riders [though they ride bulls, the risk is essentially the same]."

The first thing I can say is I have no knowledge of my own, gathered from my general knowledge or from cases I have heard and determined, of there being "professional polo players" in this State. The next point to be made is that the Act requires me to look at "members of the general workforce", and not those involved in hobbies or sports. "Equestrian athletes and show jumpers" may well fall within the latter category rather than falling within the workforce. Many people in our community carry out sporting or recreational activities which are much more dangerous than anything to which they are exposed in the course of their work. One need only think about the number of lawyers, schoolteachers and medical practitioners who injure themselves when skiing, often badly. The risks involved in skiing are much greater than the risks of pursuing a professional career as a lawyer, teacher or medical practitioner.

30 During the course of oral argument, when discussing "actors and stunt doubles", mention was made of the classic Australian film "Forty Thousand Horsemen", which was filmed on the sand dunes of Kurnell before they were mined and taken away, of the more recent film about the same subject matter "The Lighthorsemen", which may or may not have been filmed in whole or in part in this State, and of the film "The Man From Snowy River", which would appear to have been filmed at least in part in this State. However, the number of stuntmen who ride horses in the course of their employment in this State and, indeed in the Commonwealth of Australia might be particularly small.

31 I am unaware of there being "professional rodeo riders" in this State, either from my own knowledge or from cases I have heard over the last 19 years. However, I accept that there are many people, despite the invention of the automobile and its improvement since the commencement of the twentieth century, who ride horses in the course of their employment. Any person who rides a horse runs the risk of falling from it, even if it is only moving at a walking pace.

32 The question, therefore, becomes the correct categorisation of "the risk". In the present case, it appears to me that the correct categorisation of the risk to which the plaintiff was exposed was the risk of riding a horse at a gallop in line, keeping a distance of four feet from the horse in front and, in a manoeuvre, riding to the left, and running the risk that the horse she was riding might be startled or frightened or alarmed by another horse engaged in the same manoeuvre.

33 Those working on the land, stockmen and drovers, do not usually ride their horses at a gallop and certainly do not seek to ride in close proximity to other galloping horses. Circus performers, it appears to me, are unlikely to ride horses at a gallop in a circus ring because there is insufficient space for them to do so. Farmers and graziers do ride horses at musters and for other purposes, but hardly at a gallop in a manoeuvre involving other galloping horses. Jockeys do ride horses at a gallop and run a risk of the horse they are riding being startled or frightened by another horse, but they ride straight ahead; the only problem for the jockey being to pass a horse travelling in the same direction, that is, overtaking. For that purpose, racehorses ride with blinkers. There is no evidence before me that police horses are equipped with blinkers. Even so, the number of jockeys who ride at a gallop in horse races is particularly small and both jockey and racehorse are trained for one specific manoeuvre, that is, riding fast and passing other horses without the need for the sort of coordination required in a police musical ride.

34 The plaintiff herself has a long involvement with horses from her earliest years, as long as she can remember. Her father was, and may still be, a part-time horse trainer and the plaintiff grew up with horses and is herself an accomplished equestrienne. In evidence, the plaintiff said that this manoeuvre which she was performing on 8 June 1988 was a particularly dangerous one. The plaintiff was asked about the danger, for example, for mounted police involved in civil disorder or riot, and the plaintiff told me that she believed that to be a far less dangerous situation for her as a trooper than the risk that she ran in practising for this musical ride. She told me that in a civil disorder, mounted police ride in rank, stirrup to stirrup and behind members of the TRG, who probably would be equipped with shields and, perhaps, truncheons or nightsticks. There is no fast riding involved and the risk of the horse shying or taking fright is lessened by the fact that the horses are side by side, preventing the horse from jumping to one side or the other. The plaintiff said that even if offenders are throwing projectiles at the mounted police, which she admitted is common enough, there is still less danger involved than in performing this musical ride at a gallop.

35 When I so characterise the risk, and bearing in mind what the plaintiff told me, I accept that she was running a risk which members of the general workforce would normally not be required to be exposed to in the course of their employment. No difference, in my view, arises from the fact that the plaintiff was merely training at the time, rather than performing the musical ride, for example, at the Royal Easter Show or on some other special occasion. No doubt police horses need to be trained for a situation in which offenders might be throwing projectiles at troopers and their mounts. One could postulate a training activity where, in order to inure horses to projectiles being thrown in their direction, light projectiles might initially be thrown, leading to heavier and larger projectiles being thrown in order to accustom the horse to such a phenomenon or risk. One can postulate the throwing of a Ping-Pong ball and then a tennis ball, and then heavier items up to, say, half a house brick in the direction of the horses in order that they not shy or take fright. If such a training exercise were involved and a trooper was unhorsed, one could see no difference between such a training manoeuvre and the same thing occurring during the course of a civil disturbance to which the mounted police were called to assist the TRG. In other words, in my view, the Act does not differentiate between a risk caused in the actual execution of duty, as distinct from a risk caused in training for the actual execution of duty.

36 Having identified the nature of the risk, it is now my duty to ascertain the degree of risk to satisfy the requirements of s 10(1A)(c)(ii). In accordance with the decision of Geraghty CCJ in Thoms, the subparagraph invites me to place on a spectrum various risks to which police officers are exposed and which are uncommon, that is, risks to which members of the general workforce would normally not be exposed, and to assess the risk on the spectrum in order to make an award of a percentage of attributed salary between eighty five and one hundred percent. There are many, many risks which could be described as either "abnormal" or "special". The shorthand used to describe the benefit prescribed by s 10(1A)(c) is the "special risk benefit". However, the word "special" is not a term of art and finds no place in the paragraph itself. Picking up the terminology of the paragraph itself, perhaps it would be preferable to refer to the "abnormal risk benefit".

37 Where exactly this risk falls is a question of weighing various risks. Learned counsel for the plaintiff submitted that this was two-thirds along the line of "abnormal risk", such that the plaintiff ought to be entitled to 95% of the salary of her office. The submissions of learned counsel for the defendant on this issue are these:

"78. In the highest degree of risk are officers who are repeatedly exposed to the risk of death from gunfire, burning buildings, vehicle collisions and the like.

79. In the mid-range might fall, for instance, a mounted officer giving chase on a horse at speed, past obstacles, or attempting to control a violent or rowdy crowd.

80. However, a mounted officer performing routine drills in a peaceful public facility like Centennial Park - even at a gallop - is not a circumstance likely to expose the officer to risk of a high degree. The risk of injury in those circumstances, notwithstanding that it requires a degree of skill and care, is low, particularly if the horsemen and women concerned are experienced riders."

38 In Walsh v SAS Trustee Corporation (2004) 1 DDCR 438, I had to consider a very gruesome risk. The first and third holdings summarised in the head note are these:

"(1) The prolongation for a year of the principal investigating police officer's close involvement in the distressing aftermath of a murder involving the mutilation and disembowelment of a young child by her deranged mother required the subsequently disabled officer to be exposed to risk of serious psychological injury to which members of the general workforce would not normally be required to be exposed in the course of their employment...

...

(3) This was not a most extreme case of exposure to severe risk justifying a pension of 100 per cent of attributed salary of office because the officer was not under direct personal threat to his life such as might arise in a siege situation or witnessing workmates being killed before one's eyes."

At [36], I said this:

"The significant thing here is a lack of any threat to the plaintiff - direct threat to the plaintiff himself. During the course of argument were discussed scenes such as being wounded seriously by shotgun blast at a siege scene and having, for example, one's workmates killed beside one. This is not a most extreme case, in my view, and I do not use that terminology in any technical sense, but, equally, the plaintiff's experience was, in my view, one of being exposed to severe risk to which members of the general workforce would not normally be required to be exposed."

In the following paragraph, I determined that the plaintiff in that case was entitled to an additional amount such that his pension be 97.5% of the attributed salary of his office.

39 In the highest category are members of the police force who are exposed to a risk of death from gunfire and burning buildings and other emergency situations. High up the rank are clearly police officers who are exposed to horrific scenes well outside the ken of a member of the general workforce which lead to severe psychiatric illness, which was the situation in Walsh's case. Learned counsel for the defendant conceded in his submissions that in the "mid-range" might fall, for example, a mounted officer giving chase on a horse at speed, as I have earlier quoted. However, these days, such a chase would be extremely unlikely because criminals seek to leave the scene of their crime in motor vehicles, which are much faster than police horses, and, if on foot, could easily evade a mounted police officer by jumping over a fence or climbing up a tree or going through a drain or the like. The sort of activity referred to by Mr Perrignon in [79] of his submissions reads more like a cavalry manoeuvre after the enemy infantry lines have been broken.

40 However, if one accepts that a trooper dealing in a civil disturbance with offenders, a trooper who, for example, might be pulled from his or her horse by an offender, and then, on the ground, being liable to be stomped on by the horse or kicked by offenders, be in the mid-range, then the plaintiff herself says that the risk that she ran on 8 June 1988 was greater.

41 Doing the best I can, it appears to me that the risk as described by the plaintiff was in the mid-range of the spectrum, to use the terminology used by Geraghty CCJ as he then was. Accordingly, it appears to me that the plaintiff's pension should be increased to 92.5% of the attributed salary of her office.

42 I have enquired of learned counsel for the parties whether any further reasons for judgment are required and am told that none are so required. For those reasons, I set aside the decision of the defendant made on 25 October 2012 and I determine that the plaintiff's pension be increased to 92.5% of the attributed salary of her office by reason of the fact that she was exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment, such increase to take effect from 4 April 2012.

43 I order the defendant to pay the plaintiff's costs.

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Decision last updated: 17 October 2013