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‘Special Risk’ and the hurt-on-duty pension of a totally incapacitated NSW police officer

Published on September 21, 2021 by Hanaan IndariHanaan Indari

A NSW police officer (attested as a constable of the NSW Police Force (‘NSWPF’) before 1 April 1988) who is a contributor to the Police superannuation fund established under the Police Regulation (Superannuation) Act 1906 (NSW) (the ‘Act’) and who is medically discharged from the NSWPF with infirmities of the body and/or mind certified by the Commissioner of Police (‘COP’) as being hurt-on-duty (‘HOD’) is entitled to a superannuation allowance (‘HOD police pension’).  The medically discharged police officer will be paid a HOD police pension of 72.75% of the police officer’s attributed salary of office as at the date of the police officer’s medical discharge.

If the delegate of the trustee of the superannuation fund, the Police Superannuation Advisory Committee (‘PSAC’) determines that the police officer is incapacitated for work outside of the NSWPF, the police officer’s HOD police pension will be increased.  Any increase to the police officer’s HOD police pension will be commensurate to the police officer’s incapacity to work outside of the NSWPF and be not more than an additional 12.25% of the police officer’s attributed salary of office as at the date of their medical discharge (unless PSAC determines that the police officer is totally incapacitated for work outside of the NSWPF).

If PSAC determines that the police officer is totally incapacitated for work outside of the NSWPF, the police officer is eligible to an increase of their HOD police pension between 85% to 100% of their attributed salary of office as at the date of their medical discharge with such increase being commensurate with the risks to which the police officer was required to be exposed to.  The risks that are considered are risks to which members of the general workforce would not normally be required to be exposed to in the course of their employment (the ‘special risk’).

Each application for an increase of a police officer’s HOD police pension on the grounds of special risk turns on individual facts and circumstances.

In District Court of NSW proceedings McAlister v SAS Trustee Corporation [2020] NSWDC 896[1] the Plaintiff (McAlister) was aggrieved by the Defendant’s delegate’s (PSAC’s) determination to only award him an increase of his HOD police pension to 88% of his attributed salary of office as at the date of his medical discharge (9 February 2017) after PSAC determined him to be totally incapacitated for work outside of the NSWPF.  The Plaintiff instructed his legal representative, Carroll & O’Dea Lawyers to file a Statement of Claim in the Residual Jurisdiction of the District Court of NSW pursuant to section 21(1)(a) of the Act to seek an increase of his HOD police pension greater than that determined by PSAC.

The Plaintiff spent most of his policing career on motorcycle patrol duties.  The Plaintiff’s claim for an increase of his HOD police pension based on the ‘special risk’ he was exposed to relied upon three infirmities certified by the COP as being HOD, and of which contributed to his medical discharge from the NSWPF, those infirmities being:

• Left hallux rigidus (fixed/ rigid left great toe);
• Cervical spondylosis (degenerative disc disease of the neck); and
• Sensorineural deafness.

As to the first infirmity, the Plaintiff’s left hallux rigidus was certified by the COP as being caused by two separate HOD incidents, the first being an injury suffered on 22 July 1983 and the second being an injury suffered on 7 December 1990.  The injury suffered on 22 July 1983 occurred whilst the Plaintiff was riding a motorcycle in the dirt section of the track at the St Ives Driver Training Centre as part of his involvement in the High Speed Motorcycle course.  The Plaintiff lost control of his motorcycle, with the motorcycle falling on his left foot.  The Plaintiff felt a sharp pain to his heel and front of his foot.  It matters not that the Plaintiff was exposed to a risk in the course of training rather than in the course of the execution of policing duties.[2] The second injury to the Plaintiff’s left great toe was suffered on 7 December 1990.  On that day, the Plaintiff assisted another police officer in the arrest of an offender.  The Plaintiff conveyed the offender to the police station, and whilst alighting from the police vehicle at the police station, the Plaintiff felt a sharp pain in his left great toe.

As to the second infirmity, the Plaintiff’s cervical spondylosis was certified by the COP as being caused by an injury on 16 June 2015.  The injury occurred whilst the Plaintiff was undergoing defensive tactics training. During a training exercise, the Plaintiff, posing as an offender, landed awkwardly after being tackled by one of his police colleagues.  The Plaintiff complained of a sore neck and lower back.  As previously mentioned, it matters not that the Plaintiff was exposed to a risk in the course of training rather than in the course of the execution of policing duties.

As to the third infirmity, the Plaintiff’s sensorial deafness arising from his cumulative exposure to loud noise over the course of his policing career was certified by the COP as having been notified to the NSWPF on 4 September 2015.  The Plaintiff claimed exposure to motorcycle noise, sirens and gunshots from annual pistol shooting practice and euthanising animals (the latter being on a few occasions only).

As there were three certified infirmities, it was necessary for the presiding judge (Judge Neilson) to consider the total impairment of the Plaintiff, “that is, the total disability resulting from each of the three certified infirmities.”[3]  Judge Neilson determined that the extent of the disablement be apportioned as follows: 30% (of the 15 percentage points of attributed salary available for an increase of the Plaintiff’s HOD police pension (being 4.5%)) for the certified infirmity of left hallux rigidus; 60% (of the 15 percentage points of attributed salary available for an increase of the Plaintiff’s HOD police pension (being 9%)) for the certified infirmity of cervical spondylosis (this being the highest apportionment as the Plaintiff did not return to full operational policing duties because of the 16 June 2015 neck injury); and 10% (of the 15 percentage points of attributed salary available for an increase of the Plaintiff’s HOD police pension (being 1.5%)) for the certified infirmity of sensorial deafness.[4]

Judge Neilson determined that of the 15 percentage points available for an increase of the Plaintiff’s HOD police pension owing to being exposed to “abnormal risk”[5] or ‘special risk’, a further 1% increase of salary (of the available 4.5% that was apportioned) would be attributed to the certified infirmity of left hallux rigidus[6], as “the training here involved was unusual or special training for operating police road bikes at high speed.”[7] The training was undertaken “to encourage the officer to have greater control of the bike than would an ordinary motorcyclist. … it was specialised training, training to which only members of the Police Highway Patrol are exposed in order to conduct high-speed pursuits on police motorcycles”[8]

Judge Neilson also determined that a further 4% increase of salary (of the available 9% that was apportioned) would be attributed to the certified infirmity of cervical spondylosis.[9]  The risk that the Plaintiff exposed himself to that gave rise to the injury to his neck on 16 June 2015 was “a risk to which the only people generally exposed are offenders, or suspected offenders, resisting arrest”[10] and not a risk to which members of the general workforce would normally be required to be exposed to.[11]

Finally, noting that the general workforce includes factory workers, panel beaters, motor body builders, boilermakers, sheet metal workers, construction workers, operators of power tools and of heavy plant and equipment on urban building sites, couriers who ride bicycles and motorcycles in congested urban traffic and council workers who repair urban roads and footpaths (i.e. members of the general workforce exposed to noise which exceeds 85 decibels)[12] Judge Neilson determined nil increase (of the available 1.5% that was apportioned) for the Plaintiff’s certified infirmity of sensorineural deafness.[13]  This was so because many members of the general workforce are exposed to road noise and sirens; further, wind noise and engine noise are common to every motorcycle rider.[14]

Accordingly, having regard to the reasons contained in the judgment of Judge Neilson, the Plaintiff’s application to set aside and replace the Defendant’s delegate’s (PSAC’s) determination was successful, with orders for an increase of the Plaintiff’s HOD police pension to 90% of his attributed salary of office entered.

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