The Special Statutory Compensation List

Acknowledgement: the following material has been prepared by His Honour Judge G Neilson of the District Court of New South Wales.

[5-1000] The Special Statutory Compensation List

The Special Statutory Compensation List contains one part of the “Residual jurisdiction” of the District Court and is governed by Pt 3 Div 8A of the District Court Act 1973 (“the DCA”). Costs for matters in the List are governed by Pt 3 Div 8A of the DCA and UCPR r 1.27, Sch 11, Pt 4 (cl 39–45) and Pt 5 (cl 46–59). The other part of the residual jurisdiction is contained in the Coal Miner’s Workers Compensation List: see [5-0800] and ff.

Proceedings assigned to this List are under:

(a) 

Police Regulation (Superannuation) Act 1906, s 21

(b) 

Police Act 1990, s 216A

(c) 

Sporting Injuries Insurance Act 1978, s 29

(d) 

Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987, ss 16 and 30

(e) 

Workers Compensation (Dust Diseases) Act 1942, s 8I.

The Operation of the List

The List is kept by the Registrar for Sydney: UCPR, Sch 11 cl 41(1). If any proceedings are commenced at a place other than Sydney they are to be sent by the Registrar at that place to Sydney for entry into the List: cl 41(3).

Proceedings are commenced by statement of claim and should be pleaded in the normal way: cl 40. Proceedings are listed for call over before a judge appointed by the Chief Judge to control proceedings in the List, within 3 months of the filing of the statement of claim: cl 42. At the present time, two judges are allocated to hear matters in the List, and within the List itself are two lists, A and B. The judge presiding over List A controls the List at any one time. Should a matter settle, the judge will sit in another list, usually the Civil List. As the great majority of the matters on the List relate to police matters, the roster of judges sitting in the List is headed “Police Judges”.

Some matters are ready to have a hearing date set when first called over. Many are not. The managing judge will adjourn any matters that are not ready for hearing to another call over when it is anticipated that the matter might be ready to have a hearing date allocated. When a matter is ready for hearing, the managing judge will fix a hearing date and seek to make an accurate assessment of the length of the hearing, allowing time for addresses and an ex tempore judgment. There are no reserve matters for this List. Proceedings can be short (1 day). The longest case of which the writer is aware lasted 30 days with a further day required to deal with issues relating to costs.

[5-1010] Powers when exercising residual jurisdiction

The powers of the Court when exercising residual jurisdiction are governed by ss 142I and 142J of the the DCA. The provisions of s 142J are a medley of provisions extracted from the Compensation Court Act 1984.

These provisions, it can be argued, give to a judge exercising residual jurisdiction such expertise as to pay and labour conditions as the Compensation Court had attributed to it: Mechanical Advantage Group Pty Ltd v George [2003] NSWCA 121, per Young CJ in Eq at [60]–[63].

In JLT Scaffolding International Pty Ltd (In Liq) v Silva (unrep, 30/3/1994, NSWCA), Kirby P (as he then was) said at 12:

The appeal comes to this Court from a specialised Tribunal which is dealing with compensation cases and conflicting lay and medical evidence everyday. The flavour of the expertise of the Compensation Court can be found in the judgment under appeal. Medical conditions, unfamiliar to a lay body are stated in the judgment without definition simply because those practising in the Compensation Court are, or are taken to be, familiar with the medical terms used and the ordinary and oft repeated conflicts of medical opinions expressed. It can be inferred from the establishment of a specialised Compensation Court (one might say especially given the abolition of such bodies elsewhere in Australia) that the Parliament of this State has entrusted the decision making in (relevantly) questions of medical causation and the aetiology of incapacity to a specialist tribunal comprised of specialist members whose expertise is refined by the repeated performance of their tasks.

This was recently quoted by Beazley JA in Strinic v Singh (2009) 74 NSWLR 419 at [58], who doubted whether judges of the District Court sitting in the Civil Jurisdiction, unlike the Compensation Court, could ever be said to have “expertise” despite “familiarity” with medical terminology and conditions: [59]. Therefore medical issues need to be approached cautiously whenever they are in dispute. In psychiatric cases one of the parties will tender the relevant parts of DSM-IV-TR if requested to do so.

In relation to expert evidence, note the rule UCPR Sch 11 cl 44. This is designed to try to prevent a party from, for example, calling three psychiatrists or four thoracic physicians. There is a similar statutory provision relating to industrial deafness: s 142L DCA.

Appeals to the Court of Appeal are limited to error of law or to a question as to the admission or rejection of evidence: s 142N(1) DCA. Leave to appeal is required for a number of appeals: s 142N(4).

[5-1020] Costs

Costs in the residual jurisdiction are governed by the DCA s 142K and s 112 of the Workplace Injury Management and Workers Compensation Act 1998. The scale of costs is governed by cl 113 and Sch 3 of the Legal Profession Regulation 2005. This fee scale is about a decade old.

There is a large body of case law concerning s 112(3) and (4): see Mills Workers Compensation Practice (NSW). It is important to note that because of these provisions a “costs reduction” order (that the plaintiff’s costs be reduced by costs thrown away by the defendant) cannot be made: Container Terminals Australia Ltd v Xeras (1991) 23 NSWLR 214.

[5-1030] Police Regulation (Superannuation) Act 1906

(a) The Statutory Scheme

This Act applies to all members of the Police Force who joined prior to 1 April 1988. The District Court does not have jurisdiction for injuries occurring prior to 21 November 1979: Staples v COP (1990) 6 NSWCCR 33; Dive v COP (1997) 15 NSWCCR 366. Jurisdiction in respect of such injuries lies with the Government and Related Employees Appeal Tribunal.

A member who has 20 years service and who is medically discharged, or aged 60 years or more who retires, is entitled to a pension, based upon their years of service: ss 7(1), 8. A gratuity is payable for a member who is medically discharged with less than 20 years service: s 14.

The decision as to whether a member is medically discharged is made by the Police Superannuation Advisory Committee (PSAC) by delegation from the SAS Trustee Corporation (STC), who must certify the member “to be incapable, from infirmity of body or mind, of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act 1990”: s 10B(1).

If the certified infirmity is found to be caused by the member’s being hurt on duty (HOD) a pension is payable pursuant to s 10(1A)(a). The decision is made by the Commissioner of Police (COP) through a delegate pursuant to s 31 of the Police Act 1990.

If the member who is HOD is not totally incapacitated for work outside the Police Force, he or she is entitled to a further amount of pension “commensurate, in the opinion of STC, with the member’s incapacity for work outside the Police Force”: s 10(1A)(b). If the member is totally incapacitated for work outside the Police Force, a “special risk benefit” is payable where “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”: s 10(1A)(c).

The Act also provides death benefits where the COP finds death has been caused by having been HOD: s 12C.

The Act also provides “gratuities” to be paid to members and former members who the COP finds are HOD, equivalent to compensation payable to workers under ss 60, 66, 67, 74 and 75 of the Worker’s Compensation Act 1987 (WCA): s 12D.

Once the COP decides whether the member’s condition was HOD or not, the STC decides all questions relating to quantum.

Often members obtain certificates of PSAC specifying multiple infirmities. If any infirmity is accepted as being HOD, the HOD pension is payable. Nevertheless, members will seek to establish that the other infirmities be classified as HOD, as the greater the number of infirmities that are HOD, the greater will be the “top up” payable under s 10(1A)(b) and the greater the chance of being found totally incapacitated for work outside the Police Force.

A member who is aggrieved by a decision of PSAC (either as to whether or not he is medically unfit or as to the grounds on which he is medically unfit) may make an application to the STC disputes committee pursuant to s 67 of the Superannuation Administration Act 1996. There is then a further right of appeal to the Industrial Relations Commission in Court Session pursuant to s 88 of the same Act. These appeal rights often delay and complicate litigation in this Court.

(b) Applications to the District Court

An application (which is actually a hearing de novo) lies to the District Court from any decision of the COP on the question of HOD and from a decision of the STC relating to quantum: s 21.

There is no power to extend the 6 month period fixed by s 21(1): Jennings v COP (1996) 13 NSWCCR 640. To avoid this, members sometimes ask that an earlier decision be “reviewed” and then appeal against the refusal to review — such an application is incompetent: Richardson v SASTC (1999) 18 NSWCCR 423.

Costs are considered above at [5-1020].

(c) Hurt on Duty (HOD)

The term is defined in s 1(2) of the Act to mean “in relation to a member of the police force, means injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987, entitle the member to compensation under that Act.”

This provision imports all the entitling and disentitling provisions of the Workers Compensation Act 1987 (WCA): Adams v COP (1995) 11 NSWCCR 715; Innes v COP (1995) 13 NSWCCR 27 at 29F; Smith v COP (No. 2) (2000) 20 NSWCCR 27 at [18].

This is not an appropriate place for a disquisition on workers compensation law but it is important to bear in mind the date of injury. The basic scheme of the WCA is that there must be a personal injury (which is defined in s 4 to include a disease contracted in the course of the employment and to which the employment was a contributing factor and also the aggravation, acceleration, exacerbation or deterioration of a disease where the employment was a contributing factor to the same):

(i) 

arising out of employment (causal relationship) or

(ii) 

in the course of the employment (temporal relationship).

For injuries after 12 January 1997, the employment must be “a substantial contributing factor”: s 9A. After considering the section, you will need to consider this decision: Badawi v Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Limited (2009) 75 NSWLR 503.

For psychological injuries (to which many police succumb) occurring after 1 January 1996, consideration must be given to s 11A. This section was amended at the time s 9A was enacted. For the period 1 January 1996 to 11 January 1997, s 11A required that the employment be a substantial contributing factor to a psychological injury.

The following authorities need to be considered:

  • “psychological injury”: Stewart v NSW Police Service (1998) 17 NSWCCR 202; Hunt v Dept. of Education and Training (2003) 24 NSWCCR 642

  • “wholly or predominantly”: Jackson v Work Directions Australia (1998) 17 NSWCCR 70

  • “reasonable action”: COP v Minahan [2003] NSWCA 239; Jeffery v Lintipal Pty Ltd [2008] NSWCA 138

  • “transfer”: Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465; White v COP (2006) 3 DDCR 446

  • “performance appraisal”: Bottle v Wieland Consumables Pty Ltd [1999] NSWCC 32; Dunn v Department of Education and Training (2000) 19 NSWCCR 475; Brady v COP (2003) 25 NSWCCR 58; Soutar v COP (2006) 3 DCLR (NSW) 351

  • “discipline”: Kushwaha v Queanbeyan CC [2002] NSWCC 25: Department of Education and Training v Sinclair [2005] NSWCA 465; Soutar v COP (2006) 3 DCLR (NSW) 351

  • “retrenchment”: Pirie v Franklins Ltd (2001) 22 NSWCCR 346; Temelkov v Kemblawarra Portuguese Sports and Social Club [2008] NSWWCCPD 96; and

  • as to the interaction between s 9A and s 11A see Department of Education and Training v Sinclair [2005] NSWCA 465 at [55]–[58].

Other areas peculiar to HOD claims
  • police off duty — putting themselves back on duty: Lavin v COP (2007) 4 DDCR 657

  • reacting to the death of other police: King v COP (2004) 2 DDCR 416 at [8]–[11]; Rogers v COP (2005) 2 DDCR 515

  • being named in the Wood Royal Commission: Brady v COP (2003) 25 NSWCCR 58. There are a number of unreported decisions of the Compensation Court on this issue. The essential issue is what caused the member to be called/ cross-examined/ named etc in the Royal Commission. If it were an allegation of illegal conduct or misconduct, such conduct will need to be proved in this Court and then the decision made as to whether the member had taken himself outside the course of his employment and, if not, whether there was merely misconduct. If the latter, s 14 of the WCA needs to be considered

  • allegations of crime or misconduct: Schinnel v COP (1995) 11 NSWCCR 278 (lying to Internal Affairs); Liversidge v COP (2003) 25 NSWCCR 333 (an arrest found unlawful by the High Court, the member pleaded guilty to a departmental charge and was sued civilly); Remoundos v COP (2006) 3 DDCR 616 (after going on sick leave after a trivial administrative disagreement member engaged in drug trafficking); Holovinsky v COP (No. 2) (2006) 4 DDCR 122 (obtaining criminal intelligence of drug trafficking the wrong way)

  • suicide: Smith v COP (No. 2) (2000) 20 NSWCCR 27; Guff v COP (2007) 5 DDCR 132

  • Police Sporting Team injury: Clark v COP (2002) 1 DDCR 193, and

  • misperception: Townsend v COP (1992) 25 NSWCCR 9 (a misperception of actual events, due to irrational thinking of a member leading to a psychiatric illness does not make that illness HOD).

(d) PSAC Certificate is binding

This Court is bound to accept that the member has the infirmities certified by PSAC and that the member is incapable of discharging the duties of his office: Saad v COP (1995) 12 NSWCCR 70 at 75F; Innes v COP (1995) 13 NSWCCR 27; Dive v COP (1997) 15 NSWCCR 366.

Implications as to causation often arise from the nature of the certified infirmity:

  • Adjustment Disorder: Gannon v COP (2004) 1 DDCR 380

  • Major Depression: King v COP (2004) 2 DDCR 416; Moon v COP (2008) 6 DDCR 32

  • PTSD: Murray v COP [2004] NSWCA 365.

(e) “Top Up” Claims where Member not totally disabled: s 10(1A)(b)

The methodology to be adopted here is authoritatively determined in Lembcke v SASTC (2003) 56 NSWLR 736 per Santow JA, Meagher and Ipp JJA concurring. The easiest way to approach the issue is this to:

1. 

Ascertain what the member would be earning, but for his infirmity or infirmities, in the open labour market outside the Police Force.

2. 

Ascertain what he is now earning (disregarding the pension itself) or is capable of earning in the open labour market.

3. 

Make the second a proportion of the first e.g.

Uninjured able to earn $1000 pw

Now able to earn $600 pw

Ability now 60%

and ascertain the percentage loss i.e. loss of 40% of ability to earn outside the Police Force.

4. 

Apply that same (loss) percentage to 12.25 i.e. 4.9.

5. 

If STC has determined 4.9% or more, you confirm its decision. If it has determined less than 4.9% you set aside its decision and replace it with the one you have made.

(f) “Top Up” Claims where Member totally incapacitated: “Special Risk Benefit” s 10(1A)(c)

The following authorities need to be considered:

  • Walsh v SASTC (2004) 1 DDCR 438 where the earlier unreported case law is collected, and

  • Grech v COP (2004) 1 DDCR 242, which was a case under s 216 Police Act 1990, which was held to be, in essence, the same test. This case discusses the words “was required to be exposed to risks.”

(g) Commencement of Pension and of Variations

Section 9A(4) commenced on 30 June 2006. There are now cases pending arguing that the STC ought to have found “exceptional circumstances”.

Section 10(1D) governs the time for the commencement of “top up” pensions.

There are sometimes arguments as to the date from which STC should commence to pay the “top up”. Its policy is to backdate the payment to the time when the “top up” claim was made, not to the date of the first payment of the pension.

(h) A New ‘Sunset’

Section 10(1BA) commenced on 30 June 2006. It is anticipated that there will be litigation about when “an application for payment of the allowance or additional amount” was made.

A related issue arises under s 10B(2). The question will be whether the member notified the COP that he or she was HOD before his or her resignation.

(i) Section 12D Quantum Claims

These usually concern claims for lump sum compensation that would have been payable under WCA ss 66–67 if the member were a “worker”. It is important to bear in mind the date or dates of the relevant injuries.

  • If the injury occurred before 30 June 1987, the entitlement is governed by s 16 of the Workers Compensation Act 1926.

  • If the injury occurred between 30 June 1987 and 31 December 2001, the entitlement is governed by the former ss 66 and 67 of WCA 1987: the “Table of Maims”.

  • If the injury occurred on or after 1 January 2002, the current provisions of ss 66 and 67 need to be applied. The procedural provisions of the WCA require that the s 66 entitlement be determined by an Approved Medical Specialist. However, the procedural requirements of the WCA do not apply to the principal Act. Truss DCJ sets out how to calculate WPI for a psychiatric injury in Gibson v SASTC (2007) 4 DDCR 699.

[5-1040] Police Act 1990

The relevant provisions of this Act apply to members of the Police Force who joined on or after 1 April 1988.

(a) Special risk benefit for officers hurt before 30 January 2006

Sections 216 and 216A, which were repealed on 30 January 2006, still apply for injuries which occurred before 30 January 2006: Sch 4, Pt 22, cl 68–69. The correct version of the legislation to access is 1 December 2005.

As to s 216(3) see the case law cited above at [5-1030] (f) relating to the “special risk benefit” under s 10(1A)(c) of the Police Regulation (Superannuation) Act 1906.

As to section 216(6), see the commentary regarding [5-1030] (c) HOD under the Police Regulation (Superannuation) Act 1906.

(b) Special risk benefit for officers hurt on duty on or after 30 January 2006

From 30 January 2006, death and disability cover for police officers (additional to workers compensation benefits) is provided by industrial awards: Sch 4, Pt 22 of the Police Act 1990. Presumably any litigation arising from such claims goes to the IRC.

(c) Special risk benefit for students of policing hurt during police education: s 216AA

The District Court retains jurisdiction over appeals from decisions made pursuant to s 216A for students of policing: s 216AA.

The writer is unaware of any applications under this provision. The similarity of the test in s 216AA(4) to the test under the repealed s 216 and under s 10(1A)(c) of the Police Regulation (Superannuation) Act 1906 should be noted.

[5-1050] Sporting Injuries Insurance Act 1978

Applications under this Act are extremely rare. A “sporting organisation” must be declared in accordance with s 5. The sporting organisation must have “an authorised activity” as defined in s 4(1A). The sporting organisation pays premium to the Sporting Injuries Fund which is administered by the Sporting Injuries Committee. A claimant must be a “registered participant” (defined in s 4(1)) of the sporting organisation. The benefits payable in respect of injury or death are modest and are contained in Sch 1. Injuries may be assessed by a medical referee or panel: s 24.

The decision to pay a benefit rests with the Sporting Injuries Committee. An appeal from a decision of the Sporting Injuries Committee lies to the District Court: s 29.

There is no reported case law.

[5-1060] Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987

This Act extends the benefits of the WCA to a number of groups of people and provides benefits for the loss of or damage to the personal property of those people. Part 4 of the Act excludes various provisions of the WCA and of the Workplace Injury Management and Workers Compensation Act 1988 to this Act.

Part 2 of the Act applies to “bush fire fighters” defined in s 5 to extend to all volunteer fire fighters and Rural Fire Service (“official fire fighters”). Relevant events giving rise to compensable injuries are defined in ss 7, 8, 9 and 17. The cover provided for “official fire fighters” is much greater than merely fighting bush fires. It extends to most things that a member of a bush fire brigade does. The Workers Compensation (Bush Fire, Emergency and Rescue Services) Regulation 2007 extends the cover to fundraising: cl 9. The Act is administered by and claims are heard by the WorkCover Authority: s 16. Appeal lies to the District Court: s 16(4).

Part 3 of the Act applies to:

(a) 

members of the State Emergency Service

(b) 

members of the NSW Volunteer Rescue Association

(c) 

members of Surf Life Saving NSW

(d) 

any person prescribed by the regulations to be an emergency service worker or rescue association worker or surf life saver, and

(e) 

any person whom the WorkCover Authority deems to be an emergency service worker, a rescue association worker or surf life saver.

The cover provided by s 24 is for personal injury arising out of or in the course of carrying out an “authorised activity” defined in the Regulations. They are quite extensive. For example cl 7(b) relates to members of Surf Life Saving NSW. Included are “surf life saving operations, training, preparatory activities genuinely related to those operations and fundraising”.

The claims are decided by the Workcover Authority (s 30) and any dissatisfied claimant can ask for a determination of the claim by the District Court: s 30(6). Claims under this Act are few and usually involve questions of quantum of death benefits, weekly payments or lump sum compensation.

[5-1070] Workers’ Compensation (Dust Diseases) Act 1942

Workers who contract a “dust disease” are not entitled to compensation under the WCA but are entitled to compensation under this Act. A “dust disease” is one of the fourteen conditions specified in Sch 1 of the Act. The Act constitutes the Workers’ Compensation (Dust Diseases) Board (“DDB”) and establishes a medical authority comprising three legally qualified medical practitioners appointed by the relevant Minister.

The primary entitling provision is s 8. The medical authority is required to certify whether a person is totally or partially disabled for work by a dust disease or that a death was due to a dust disease. It must also certify whether the disablement or death was “reasonably attributable” to the person’s exposure to the inhalation of dust in an occupation to the nature of which the disease is due. The DDB is required find whether the person concerned was a worker during the whole of the period he or she was engaged in that occupation but, if he or she were a worker for only part of the time he or she was engaged in that occupation, the medical authority is required to find that the death or disablement was “reasonably attributable” to the person’s exposure to dust in the occupation concerned when the person was a worker.

The rates of compensation are those prescribed by the WCA. The scheme of death benefits, however, is different: s 8(2B). The DDB acts, essentially, as both the employer and insurer of the worker.

Section 8I governs appeals. The “appeal” is a hearing de novo on its merits: DDB v Veksans (1993) 32 NSWLR 221; Irhazi v DDB (2002) 23 NSWCCR 426.

Appeals are usually from decisions of the medical authority. The medical evidence is largely confined to that of thoracic surgeons and thoracic physicians, a relatively small pool of experts. The Act acknowledges this. The medical authority must be constituted by at least 2 of its 3 members and a decision of any 2 members is the decision of the authority: s 7(2).

Subsection 7(4) provides:

If a medical practitioner has given evidence or agreed to give evidence as a medical practitioner in connection with any legal proceedings taken by or on behalf of a worker or by any employer of the worker, the medical practitioner must not act as a member of the medical authority in connection with any case involving those proceedings.

In Pizzini v DDB (1991) 7 NSWCCR 278 it was held that a decision of the medical authority was void where one of its members had performed a bronchoscopy of the worker before being a member of the medical authority which issued the certificate under appeal.

Members of the medical authority often give evidence on appeals against a decision of the medical authority. The same issues are often relitigated: see O’Brien v DDB (2000) 22 NSWCCR 193 where Campbell CCCJ refers to earlier decisions at [12]. The types of issues which might arise are also demonstrated in Cavanough v DDB (1998) 16 NSWCCR 626.

The Act does not apply to Federal employees: O’Brien v DDB (2000) 22 NSWCCR 193.

Legislation

  • District Court Act 1973 Pt 3 Div 8A

  • Police Regulation (Superannuation) Act 1906 ss 1, 7, 8, 9A, 10, 10B, 11A, 12C, 12D, 14, 21

  • Police Act 1990 ss 216, 216A, 216AA

  • Sporting Injuries Insurance Act 1978 ss 4, 5, 24, 29, Sch 1

  • Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987, ss 16, 24, 30

  • Workers Compensation (Bush Fire, Emergency and Rescue Services) Regulation 2007 cl 9

  • Workers Compensation (Dust Diseases) Act 1942, ss 7, 8, 8I

Rules

  • UCPR r 1.27, Sch 11 Pts 4–5

Further references

Butterworths, Mills Workers Compensation Practice (NSW)

The full version of G W Neilson “The Special Statutory Compensation List”, paper presented at the Judicial Commission of NSW District Court Annual Conference, 24 June 2009, Sydney, is available online at <https://jirs.judcom.nsw.gov.au/menus/publ_papers.php>