Court awards pension increase to ex-police officer for ‘abnormal’ work risks

In a recent case, the District Court of New South Wales considered whether an ex-police officer, who was medically discharged from the NSW Police Force in 2017, was entitled to a pension increase. The Court considered the officer’s ailments and ordered that his pension be increased to 90% of his salary at the date of his discharge.

Geoffrey McAlister was a former senior constable, having commenced his career in 1975. Over his three-decade service, McAllister performed duties in Blacktown, North Sydney, Penrith and Western Sydney.

In January 2017, the Police Superannuation Advisory Committee (PSAC) determined that McAllister was incapable of performing further duties due to three ailments: the hallux rigidus of his great left toe, degenerative disc disease of his neck and sensorineural deafness. Following this, McAllister was medically discharged and awarded a “hurt on duty” pension. In May 2019, dissatisfied with the PSAC’s determination of his pension sum, McAllister applied to the District Court.

The Hearing

The Court considered each of McAllister’s three ailments separately to determine his “total disability”. In respect of his first ailment, McAllister stated that, in July 1983, he fell off his motorcycle whilst participating in a high-speed motorcycle training course. The motorcycle landed on McAllister’s left foot, causing sharp pain. In addition, in December 1990, McAllister reinjured his toe whilst restraining an alleged offender.

As to his second ailment, the Court heard evidence that, whilst undergoing defensive tactics training in June 2015, McAllister was leg swept by another officer and landed awkwardly. He subsequently suffered degenerative disc disease, which his doctor stated contained a “real possibility of further injury” if he continued to perform police duties.

Finally, in respect of his third ailment, McAllister submitted that he had suffered traumatic deafness due to his continued exposure to loud noises throughout his service. The Commissioner of Police accepted the date of this injury to be 4 November 2015.

Judgment

The Court was satisfied that McAllister’s 1983 high-speed training course contained an “abnormal risk… that only members of the Police Highway Patrol are exposed to” and awarded a 1% salary increase on account of his toe injury. It also deemed the defensive tactics training a risk that members of the general workforce would not usually be exposed to and awarded McAllister a 4% salary increase due to his neck injury.

However, turning to his deafness, the Court was unpersuaded that McAllister’s exposure to loud noises carried an “abnormal risk of injury”, commenting that many workers are exposed to noises such as sirens, loud music and wind noise. It declined to award a salary increase owing to McAllister’s deafness. With this, the Court ordered that McAllister’s pension be increased by 5%, to 90% of his salary at the date of his discharge. 

Key Takeaways

• Those medically discharged from the NSW Police Force due to “infirmities” of the body or mind are entitled to a superannuation allowance called a “hurt on duty” pension
• To quality for this pension, ex-officers must have served since before 1 April 1988
• The Court will consider the ex-officer’s individual ailments to determine their “total disability”