Adam Shane Daykin v SAS Trustee Corporation

Industrial Relations Commission (NSW)|1991-12-05|Before: Kavanagh J, Peterson J, Schmidt JJ, Hungerford J, Dr P

Industrial Relations Commission of New South Wales in Court Session

CITATION : Adam Shane Daykin v SAS Trustee Corporation [2000] NSWIRComm 7 PARTIES : APPELLANT: Adam Shane Daykin RESPONDENT: SAS Trustee Corporation FILE NUMBER: IRC5860 of 1998 CORAM: Kavanagh J Superannuation Police Regulation (Superannuation Act) 1906 Appeal application for certification for another injury CATCHWORDS : Member already found totally incapacitated Each injury creates a separate right certification for other injury ordered Appeal upheld Industrial Relations Act 1996 LEGISLATION CITED : Superannuation Administration Act 1996 Police Regulation (Superannuation) Act 1906 Kim Patricia Adams v State Authorities Superannuation Board (unreported, No. 551 of 1990, 5 December 1991) Thompson v Armstrong & Royse Pty Ltd (2) (1950) 81 CLR 585 Ford v State Authorities Superannuation Board (unreported, CT1024 of 1993, 14 October 1994) Rockley Boothroyd v The State Service Superannuation Board (unreported, Supreme Court of Qld, Appeal No. 45 of 1985, 16/9/85) CASES CITED : Wooden v State Authorities Superannuation Trustee Corporation (unreported, Peterson J, 28 July 1998, IRC829 of 1997) Boland v SAS (unreported, Full Bench (Marks and Schmidt JJ and Hungerford J dissenting) No. 98/1913, 30 March 1998) Re Doudie v Kinneil Cannel & Coking Coal Co Ltd (1947) AC 377 at 381 Thompson v London & North Eastern Ry Co's Case [1935] 2 KB 90

HEARING DATES: 06/07/1999; 11/01/1999; 11/02/1999; 11/09/1999 DATE OF JUDGMENT: 02/25/2000

APPELLANT: Mr M.J. Walsh (Barrister) SOLICITOR Oates & Smith LEGAL REPRESENTATIVES: RESPONDENT: Ms K. Nomchong (Barrister)

1 This is an appeal by Adam Shane Daykin ("the appellant" and "the member") pursuant to s88 of the Superannuation Administration Act 1996 from a decision of the State Super SAS Trustee Corporation ("STC") ("the corporation") against the certificate of incapacity it issued to the appellant under ss8 and 10B of the Police Regulation (Superannuation) Act 1906 ("the Act"), which certification did not include the following words: ". . . and post-traumatic chondromalacia patella of the right knee and a prolapsed disc at L5/S1 segment.

2 Mr M.J. Walsh, of counsel, appeared for the appellant and Ms K. Nomchong, of counsel, appeared for the Corporation. 3 The appellant's grounds of appeal are: 1. The respondent erred in its decision to decline to certify the incapacity as being unfit in body and mind pursuant to ss 8(1) and 10B(2) of the Police Regulation (Superannuation) Act 1906; and

The respondent failed to adequately take into account the medical reports of the appellant.

4 The appellant's application for medical discharge was considered by the Superannuation Board on 28 January 1998. The grounds pleaded in his application for discharge were: 1. Acute anxiety and depression. 2. Damaged right knee; and 3. Lower back.

5 He relied on two medical reports, one from Dr A.M. Nicholas, a clinical forensic and educational Psychologist and his general practitioner, Dr P. Furey. Neither report mentioned his orthopaedic injuries. However, the appellant on 20 March 1997 in support of his application for medical discharge wrote: Early in my career, whilst effecting an arrest in the main Street of Belmont I severely damaged my right knee, I never lost one day from work, nor asked the Service to pay for any of the Doctors Visits or physio sessions. At 1.35am 3.11.92 I reinjured this knee effecting another arrest whilst working at Charlestown, as with before I never lost anytime off work. To this date my knee is moderately painful and although I have no loss of movement I am constantly conscious not to make any fast movement of it or carry (sic) any large weights. Never once have I complained even though before this injury I weight trained five days a week and played a multitude of sports, something I now cannot do. I currently do karate and jog to mobilize the joint when it is not to (sic) sore. However I understand the limitations of my knee and realize I will not be able to kick out with any great speed or force.

6 The delegate found the appellant was suffering an infirmity which was "a major depressive illness with generalised anxiety disorder." Such infirmities, the delegate held, were not sustained as a result of the appellant having been hurt on duty. The delegate did not include any knee or back injury/infirmity on the certificate.

7 The appellant then appealed to the STC's Disputes Committee which made a determination under s67 of the Superannuation Administration Act 1996 confirming the delegate's decision that he suffered the depressive illness which was not a work related injury. Once again the knee injury and back injury were not included on the certificate.

8 The appellant pursues his rights claiming he has an infirmity arising out of injury at work to his right knee and back. He alleges, arising out of the condition of his knee and back he is "incapable, from a specified infirmity of body or mind of discharging the duties of his office." The hearing before the Commission is in the manner of a hearing de novo.

9 The claim in relation to the knee arises out of two injuries the appellant suffered during his employment. Records of the Police Department reveal the facts of his first injury. On 21-22 October 1989 Constable Daykin (as he then was) struggled to arrest an offender. During the arrest he was struck on the nose and on the side of the face. He, with his police partner, then handcuffed the assailant and as they attempted to get the assailant into the vehicle Constable Daykin was thrown onto his right knee and the prisoner landed on top of him.

10 The next day the appellant found he could not bend his knee, it was sore, painful, swollen and clicking. That day he attended at Belmont Hospital for x-rays. On 23 October 1989, two days later, he attended to his General Practitioner, Dr Furey. On clinical examination Dr Furey found: There was a full range of flexion and extension of the right knee but there was a distinct crepitus below the patella. There was pain on compression of the patella and on compression of the knee joint, medially and laterally. There was swelling of the knee slightly in comparison with the left. He had thickening overlying the left mandible, indicating a sign of contusion. The mid portion of the lower part of the mandible was ridged and tender, indicating some periosteal elevation by haemorrhage and indicating trauma. . . .

11 The doctor's diagnosis was a "compression injury of the right knee".

12 The appellant attended again on Dr Furey, on 12 November 1990, a year later, complaining of knee pain. The doctor found there was tenderness of the inferior pole of the left patella and increased pain on full squatting and full flexion of the knee. His diagnosis then was a "compression injury to the right knee with "the production of (query) chondromalacia". The doctor noted it was thirteen months since the injury occurred and the appellant was still having problems. "The huge loads upon the knee when squatting and compressing", the doctor opined, would cause the knee to continue to give him difficulties.

13 His mother, who is a qualified physiotherapist, wrote her first report the following year, on 12 February 1991, saying she had been treating her son for right knee injury sustained during a fall on 21 October 1989. She gave him treatment with heat laser, mobilisation and exercise. She noted he had improved but still had some retro-patellar grating which produced pain and the knee was painful during extension from a flexed position.

14 On 3 November 1992 the appellant suffered further injury to his knee while on duty. He reported the injury. He described giving chase, with a police partner, to an offender who fell off a bicycle and was running away. Constable Daykin tackled the offender and he and the offender fell heavily to the ground. Constable Daykin immediately felt a sharp pain in his right knee. He did not seek medical treatment for the further injury but reported it.

15 He saw Dr Furey again about the condition of his knee on 31 October 1996 when the doctor found a full range of flexion/extension with some swelling below the patella and tenderness on compression of the kneecap. His diagnosis by then was chondromalacia of the right knee.

16 Between the two reported injuries of 1989 and 1992 and 1996 when he went on stress leave, the appellant had not attended his general practitioner or any other doctor complaining about his knee. He asserts he attended on his mother for treatment and physiotherapy. The respondent casts doubt on this assertion. In 1997 Mrs Daykin, a physiotherapist, reports she had continued to treat her son who was having difficulties with the knee. From her examination she noted downward pressure on the patella produced pain at a distinct level. It was her opinion by 1997 he had a true chondromalacia.

17 As to the right knee condition on 8 May 1998 an MRI was performed an the following finings were recorded. MRI OF THE RIGHT KNEE: Sagittal T1 weighted images and proton density and T2 weighted images have been acquired, coronal inversion recovery images, axial T2 weighted images and a 3D gradient echo sequence has been acquired. There is no evidence of a meniscal injury. The ligaments are intact. The articular cartilage is well-preserved and looks normal.

18 As best as I can sum up the medical evidence in relation to his knee, it is as follows: Dr Furey's diagnosis was chondromalacia patella of the right knee caused by the incidents reported at work. Dr Bruce Caldwell, orthopaedic specialist, to whom he was referred by Dr Furey, saw him on 4 September 1997 said: He would appear to have a variant of the dashboard knee, that is a direct blow in relation to the anterior aspect causing a pain syndrome. I couldn't find anything to (sic) objectively wrong with his knee including very little retro-patellar crepitus. To Mrs Daykin, the physiotherapist, Dr Caldwell wrote "he has chondromalacia from a direct blow injury".

19 Dr Stephenson, orthopaedic specialist, saw him on 21 October 1997 for the Medical Review Officer (Police) of the Superannuation Board. He found: There was retropatella crepitus on moving the right knee and patella at the mid range of flexion. He opined: If a diagnosis of chondromalacia patella is confirmed at arthroscopy it would be reasonable to assume he would eventually have a disability assessment made as to his right lower limb ... He could have some impairment as to his fitness for front-line police work because of his right knee symptoms.

20 Dr Stephenson saw the appellant again in October 1999 but this report is not tendered. The appellant submits the court should cast an inference the report would not assist the respondent (see Jones v Dunkell (1959) 101 CLR 298).

21 Dr Mitchell in May 1998 diagnosis was: "Knee pain is patello-femoral in nature"; Dr Ghabrial in June 1998 diagnosis was: "Post-traumatic chondromalacia patella; Dr Benanzio, January 1999: "Post-traumatic chondromalacia patella".

22 The appellant saw a number of other doctors after 1996 in relation to his chronic, reactive depression and chronic anxiety, namely, Drs Nicholas, Wade, Strum, Canaris, all psychiatrists or psychologists, none of whom took a note in their histories of any ongoing pain in the knee or back. While the respondent relies on this fact these doctors had a specific qualification, that of psychiatry, and were often medically/legally qualified for that particular expertise. It is not unusual for such reports to not address other than the issue on which they were retained by a party.

23 Dr Crowle in May 1997, in a review of medical discharge, noted that the appellant claimed anxiety and damaged right knee. The doctor does not address any medical issues in relation to the right knee.

24 Dr Locke in January 1998 in a review of the medical evidence said: This is a very difficult claim because of the conflicting medical opinions. There seems no doubt he does not have any orthopaedic disability of sufficient severity to render him unfit for duty.

The doctor by inference suggest there is some disability and assesses the effect of its severity.

25 Dr Christie in March 1998 as a Consultant Physician when reviewing the medical evidence says: While accepting that Mr Daykin may well suffer from chondromalacia and possibly patella lower lumbar strain, although I find the evidence for this sketchy, I do not believe that either of those conditions in either way render him unfit of discharging the duties of his office.

Again, the doctor accepts there is a disability but assessed the effect of its severity.

26 The appellant also makes a claim for an injury to his back. He alleges the pain in his back came on after the 1992 injury and is now aggravated by the difficulty he has walking as his altered gait due to the knee injury puts stresses on his back and causes associated back pain. In support of this proposition he tenders a number of medical reports. I am not persuaded from the medical evidence as contained in the doctors' reports that the appellant should succeed in relation to any claim for a back injury that is work related.

27 As to the back claim, Dr Furey given no time for onset of the pain but says its source is "the way he's had to walk". His mother opines in August 1997 she had treated him for low back pain for eighteen months. This would put the onset of back pain at February 1996. To the other doctors on whom he relies, he gives variable evidence. He says to Dr Ghabrial, an orthopaedic and spinal surgeon, that four to five years prior to when he saw Dr Ghabrial in 1998 he started developing increasing pain in his back. He tells Dr Benanzio, an orthopaedic surgeon on whom he relies, that he has continued discomfort in his low back of more or less degree. He does not give an estimated time as to the onset of this back pain. In a consultation with Dr Stephenson, the orthopaedic surgeon who examined him on behalf of the Police Force, he gives a history of lumbar pain with no indication as to onset.

28 An MRI report of the appellant's back in May 1998 states as follows: MRI OF THE LUMBOSACRAL SPINE: Sagittal T1 and T2 weighted images have been acquired and axial T1 weighted images have been acquired from L3 through to S1. There is degenerative change in the L5/S1 disc with a small focal central disc protrusion present at this level. There is no definite evidence of neural compromise. The appearance of the higher disc is normal.

29 The report is significant in that it gives no indication of nerve root irritation, that is, there is no neural compromise from the small protrusion.

30 A number of workmates were called to support the appellant's claim of ongoing knee and back problems.

31 Brett Robert Remington who was a Sergeant of Police gave evidence that he saw the appellant at work regularly between 1987 and 1989 and in that period of time he found him an extremely fit and capable officer, capable of performing all the general duties required of a junior constable. However, by late 1992 he noticed the appellant limping and the appellant complained to him of right leg and back pain.

32 Sydney James Goodliff, who was a Sergeant of Police at Charlestown also gave evidence that between 1988 and 1992 he saw the appellant about every six months and right up to 1992 he did not observe the appellant had any difficulties running, lifting heavy objects or bending. However after March 1992 to November 1996, as a Police shift supervisor to the appellant, Mr Goodliff observed the appellant was having some difficulty in engaging in physical work as a police officer. He noticed he limped. He reported an incident where he told Inspector McSporran at the Charlestown police station that the appellant had a right leg problem, could not wear uniform boots and needed to raise his legs. He observed the appellant had difficulties in leaping over a fence sometime between 1993 and 1994 when they were working as partners on an emergency call for police help.

33 Norman Jones a constable at Charlestown police station between 1994 and 1996 observed the appellant at times limping and he noted he never walked upstairs without complaint. Constable Jones felt the appellant could not be relied upon to react quickly in an emergency due to his leg condition. He felt the appellant was not able-bodied and was a danger as a policeman on general duties. He noted the appellant at times holding his back and hobbling instead of walking with ease while on duty at Charlestown.

34 The respondent also called two officers in opposing the appellant's claim. Norman Neville Flegg, was relevantly a Sergeant of Police at Newcastle police station, between June 1996 and October 1996 during the 4 months the appellant served at Newcastle. He was the appellant's supervisor at Newcastle Police Station. He rostered the appellant as a Police Officer to perform varied duties ranging from station officer to mobile patrols. His evidence was the appellant never complained to him of any physical disability which would have affected his capacity to carry out his task while at Newcastle.

35 Snr Constable Steven Evans gave evidence that between June 1996 and 31 October 1996 he worked with the appellant in the Newcastle Police Station. He went on patrol duty on numerous occasions with Snr Constable Daykin. He had no recollection of any physical injury that impaired the appellant's ability to perform his duties, nor of any official request to perform restricted duties.

36 The respondent relies on lay evidence to support the proposition the appellant suffers no real disability arising from any right knee injury or back injury. A video, some 17 minutes in length, was shown of the appellant involved in activities since his retirement while at work as an electrician. The appellant was quite physically active. The video shows him squatting for the purpose of his pursuing his work. He showed some disability in relation to his walk. On occasions there was a limp. The court noted the appellant on that day wore a back brace and a right knee guard. From various aspects of the video evidence however it could be found the appellant was aware he was being filmed. I do not find this video evidence persuasive support for either proposition before me.

37 The respondent submits that the appellant during his service as a Police Officer operated a number of businesses outside the Police Force. At various times he and his wife conducted a hire car business where he drove the cars. They also conducted a barber shop business in which he performed a management role. He bought land which he leased to a farmer and managed the income. Significantly he operated Daykins Service, an electrical company, where he performed the trademan's range of the electrical work, he being a qualified electrician before becoming a Police Officer. In the period of time from 1992 to 1996 the appellant earned each year approximately $50,000 for the work performed outside the Police Force. The significance of this income, the respondent submits, is it shows both the entrepreneurial and managerial skills as well as tradesmen skills held by the appellant.

38 The respondent submits the type of activities he performed as a driver and carpenter could themselves have caused a knee injury. Alternatively, the present condition in his knee, if one accepts it is chondromalacia patella, is significantly contributed to by his activities as an electrician, and a driver.

39 There is no persuasive evidence before the Court that this approved part-time work could have caused the knee condition or any persuasive professional assessment that the condition has been aggravated by the various types of work he has performed over the years. However, the issue before the Court is infirmity and incapacity not causal connection

40 The respondent also relied upon evidence admitted by the appellant that he jogged, regularly, was physically active and went to judo classes. The respondent suggested such activities combined with his commercial activities outside the work place could have caused and/or aggravated his injury to his knee. If this submission is relevant to my inquiry I reject the proposition. In his application for retirement, the appellant summarised his position saying he exercises when not "to (sic) sore". The fact that he has continued to exercise, as best he can manage, is a credit.

41 The respondent acknowledges the appellant had two days off work after the initial 1989 injury, namely, 22 and 23 October 1989. As to the injury on 3 November 1992, the respondent submits as to the circumstances of the injury there is a difference in the version between his notification given to the Police Force at the time and that in the appellant's affidavit. The court is not persuaded, if there is such variation, it is of relevance and the court finds the appellant suffered a further aggravation of his knee injury on 3 November 1992.

42 There was some dispute between the parties about whether during the four year period of police work at Charlestown Police Station from 1992 to 1996, restricted duties or special duties were given to the appellant. The Court finds from the evidence the appellant never made formal application for restricted duties arising out of a medical condition related to an injury to his right knee. However if, as I do, I the accept witnesses called by the appellant, who worked with him at Charlestown between 1992 and 1996 then the appellant demonstrated while at work evidence of a recurring problem with his knee such as to cause him difficulties walking, climbing stairs, bending and squatting. This difficulty was apparent in the latter part of his service at Charlestown.

43 The evidence as to how an injured officer was treated at Charlestown Police Station was disturbing and a matter of concern. Mr Walsh asked Mr Norman Thomas Jones, a former Police Officer: Q. Would you tell her Honour your understanding of the term that you mentioned there, light duty? A. The light duty was staff that had been injured and had been based in the station not to do operational duties, to do just station work. Q. What was the practice from your experience at Charlestown during that period up to 1996 as to how someone went on light duties? A. Well anyone who was injured long or short term would be placed on light duties. Q. How did that occur, sir? A. It was more of an unofficial thing that people were just placed in the station and not permitted to do operational work. Q. To your knowledge was there a requirement to complete any paperwork to be put on light duties? A. Not at Charlestown, it was not, no. . . . The Court then asked Mr Norman Thomas Jones: Q. What do you say happened at Charlestown if the Sergeant believed you were on light duties? A. No, basically it was off the records or the thing because we were so under-staffed. I mean it was never acknowledged that we needed staff up there and if people were on sick report they simply were down one or two people and they wouldn't be replaced. If you had somewhere in the station you had an injury basically they would either come out on vehicle with you and the station would be manned by a secretary, where it should not have been but that was the way it was run.

Ms Nomchong for the Corporation asked the following of Mr Goodliff, a Policeman who served at Charlestown: Q. You were the shift supervisor at Charlestown police station, is that right? A. That was one of my duties, yes. Q. Is it true that the practice at Charlestown was that whenever an officer had injured himself or herself they would be put onto sort of de facto light duties, if you like, rather than filling out the appropriate forms and making a formal application for light duties? A. It was the responsibility of the police to record every occasion, reporting the matter through formal channels, an injury, and sometimes because we did not want to be short-staffed of police we would take it upon ourselves to work full duties rather than light duties. To explain that, I would say that if a person went on light duties it would mean some other police personnel would have to be seconded from some other station which would leave another station short-handed. We had a problem with staffing in that area. . . . Q. Mr Goodliff, did you ever give a direction or any authorisation for Mr Daykin not to perform general duties while he was at Charlestown? A. No, I did not make a formal declaration to him. I indicated it would assist us to keep our manning procedures if he were to work as a full duty officer. . . .

44 Although the appellant made no formal application for restricted duties he alleges he was given such duties whilst stationed at Charlestown. It does not seem to the court there is any evidence to support the proposition that he was given formal, restricted duties while at Charlestown. There is not sufficient evidence for the court to find he was given, unofficially or informally, restricted duties although I am persuaded there is evidence to suggest that there was within the Charlestown Police Station some knowledge by his superiors that he had some ongoing incapacity. Such information may have been considered in the type of rosters on duty he was allocated. These rosters however were the full duty rosters of a serving police officer.

45 The court in its consideration as to the effect of the knee injury does so in the context of the relevant provisions of the Act. Section 8 - Determination of members medically unfit

(1) A superannuation allowance or gratuity shall not be granted or paid under section 7 or 14 to a member of the police force who: (a) is discharged after the commencement of the Police Regulation (Superannuation and Appeals) Amendment Act 1973, and (b) at the time of the member's discharge is under the age of sixty years,

unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from infirmity of body or mind, of discharging the duties of the member's office.

(2) STC may certify that a member of the police force is incapable of discharging the duties of the member's office only if the member is incapable of discharging the duties of the office in the police force in which the member is then employed and also any other office in the police force: (a) which is available to the member, (b) which is not lower in rank than the office in which the member is then employed, and (c) in which it would be reasonable to expect the member to be employed.

Section 10B(2A) and (2B) of the Act states: 10B Medical examination of disabled member and determination of whether hurt on duty . . . (2A) STC may certify that a former member of the police force is incapable of discharging the duties of the member's office only if the member is incapable of discharging the duties of the office in the police force in which the member is then employed and also any other office in the police force: (a) which is available to the member, (b) which is not lower in rank than the office in which the member is then employed, and (c) in which it would be reasonable to expect the member to have been employed.

(2B) STC may certify that a former member of the police force would have been incapable of discharging the duties of the member's office if the member would have been incapable of discharging the duties of the office in the police force in which the member was employed at the time of the member's resignation or retirement and also any other office in the police force: (a) which was available to the member at that time, (b) which was not lower in rank than the office in which the member was then employed, and (c) in which it would have been reasonable to expect the member to have been employed.

46 There has been legal interpretation of the terms "infirmity" and "incapacity" or "incapability". As to what is an infirmity, and incapacity there is some guidance to the Court in Kim Patricia Adams v State Authorities Superannuation Board, Cullen J held (at 15-16): . . . The word "infirm" is a concept which has been accorded a wide meaning. Dictionary meanings of the word are not helpful in providing a precise definition. The word was considered by Kekewich J in Re Buck Bruty v Mackey (1896) 2 Ch 727 at 734): . . . as regards 'infirmity', that means some permanent disease, accident, or anything of that kind, rendering the member an object deserving of the assistance of the society. In the context of Sections 10 & 16 of the Police Regulation (Superannuation) Act 1906 (NSW) in my opinion, the word "infirmity" refers to a physical or mental condition which prevents a member of the Police Force, for the foreseeable future, from discharging the duties of a police officer.

47 In Thompson v Armstrong & Royse Pty Ltd, Kitto J, commenting as to an "incapacity" under workers compensation law, canvassed the historical development of this term and its legal implications saying: This is made abundantly clear by Lord Loreburn's frequently quoted definition in Ball v William Hunt & Sons Ltd (1912) AC, at pp 499, 500: There is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch." The inquiry, then, must be as to the result of a man's physical defect in relation to the market for his labour.

48 Marks J of the Court in Ford v State Authorities Superannuation Board (unreported, CT1024 of 1993, 14 October 1994) relied upon the words of Thomas J in Rockley Boothroyd v The State Service Superannuation Board (unreported, Supreme Court of Queensland, Appeal No. 45 of 1985, 16 September, 1985) and then held: The words "incapable of discharging the duties of ... office" in my opinion equate with the expression "incapacity for work" an expression which is commonly encountered in Workers' Compensation legislation. See for example s33 of the New South Wales Workers' Compensation Act 1987. It is a fundamental concept in the practice of Workers' Compensation law that a person is incapacitated for work if he or she cannot undertake the work, in a sense of actually performing it (see for example Arnotts Snack Products Pty Ltd v Yarcob (1985) 57 ALR 229 at 230) or if the person is unable to attempt work (see for example Ball v William Hunt & Sons Ltd (1912) AC 496).

49 In Wooden v State Authorities Superannuation Trustee Corporation (unreported, 28 July 1998, IRC829 of 1997), Peterson J (at 22) further developed these principles when examining s 10(B) stating: There are, . . . three relevant elements in the statutory phrase, the first being an incapability, the second an infirmity of mind, and thirdly a connection between the infirmity of mind and the inability to work. That is to say that an infirmity of mind which does not produce an incapacity to work means that the definition or test cannot be satisfied. . . .

50 This view was recently endorsed by the majority in Boland v SAS (unreported, Full Bench (Marks and Schmidt JJ and Hungerford J dissenting) No. 98/1913, 30 March 1998 at 11): In essence what was required was that a determination be made as to whether the appellant would have been incapable from an infirmity of body or mind of discharging the duties of his or any other office which satisfied the requirements at the time of the resignation. These are referred to in s10B(2B), the provisions of which have earlier been set out. While his Honour discussed concepts such as "the level of disability", "injury", "disability", "coping with selected police duties", his Honour failed to make any determination about incapability of discharging the duties of the appellant's office, or any other office as described in paras (a), (b), and (c) of s10B(2B) as at the relevant date namely date of retirement.

51 The Court accepts Mrs Daykin's report of ongoing physiotherapy treatment for the injury. While it is unusual to have to rely on a relative's word, I find it is persuasive that there exists a contemporaneous report to prove Mrs Daykin was treating the appellant between the first and second injury to the appellant's right knee at work. The Court finds although the appellant did not seek medical treatment in the years following the second injury he had ongoing problems with the knee arising out of the two work injuries and received appropriate treatment by way of physiotherapy.

52 From the evidence and guided by these principles, I am persuaded the appellant has an ongoing disability in his knee which is, as diagnosed, the condition of chondromalacia patella. The condition is a permanent medical condition which flares up intermittently. I am satisfied such a condition would give the appellant an infirmity of body at the relevant time such as to interfere with his performance of the ordinary duties of a police officer, in the position of Constable, in the NSW Police Force.

53 I am not persuaded on the medical evidence before me, or from the histories as provided to the doctors, the appellant has suffered any injury to his back. I am certainly not persuaded, if he has back pain, it relates to stresses placed on his back arising out of an altered gait because of his right knee injury. I am not persuaded he suffered an injury to his back arising from the 1992 incident. I find therefore the appellant is not incapacitated for any duties in the Police Force by an incapacity arising from a back condition.

54 The appellant bears the onus of proving he was incapable at the relevant time by reason of his knee injury to perform not only his own duties but also any other office in the police force which was available at the time of his retirement and in which it would have been reasonable to expect the member to have been employed in accordance with s10B of the Act. 55 Chondromalacia is a permanent arthritic condition which when it settles is always liable to intermittent inflammation. Such a condition would make a person unable to perform the general duties of a police officer. The knee could be unreliable in any situation and especially any emergency situation which required a reliable, physical reaction. Once it is established, as the Court so finds, there was a knee injury leading to a chondromalacia of the patella, it is also established the member has a permanent condition. The next question to determine is does such a condition cause an infirmity of the body and an incapacity for all or some of the duties of a police officer?

56 The knee condition can only be included as a specified infirmity for the purposes of the Act if it was on 5 February 1998 (and taking into account his last day of service was 31 October 1996) a reason for him being unable to discharge either his duties and any other office within the Police Service as defined by s10B of the Act.

57 From the evidence of witnesses Sgts Goodliff and Flegg and Senior Const Evans, all had suffered injuries and incapacity arising out of orthopaedic injuries and each had been provided with rehabilitation by the Police Force, and with restricted duties employment within the New South Wales Police Service. Before the Court was evidence the Police Force has issued a certificate pursuant to s 10B listing multiple injuries. Two cases given as examples by the appellant were of officers Townsend and Geradini both of whom were members of the Police Force who suffered post traumatic stress disorders arising out of their physical injuries. Their certificates listed multiple infirmities which may or may not have arisen out of the one incident.

58 Such was the case in Boland v SAS (unreported, Full Bench (Hungerford, Marks and Schmidt JJ) No. 98/1913, 30 March 1998) where Fisher P, the trial judge, (No. CT1064 of 1996, 30 March 1998) held Mr Boland received a physical injury to his neck region which caused him disability. Mr Boland had also developed an adverse reaction to the stress occasioned to him in other incidents which stress aggravated the neck condition. Fisher P then went on to find "the level of disability so encountered was modest and would not ordinarily disable him from earning a living". He considered the effect of two disabilities.

59 While the onus of proof in all respects lies with the appellant in proving his case to the requisite level (see Harding v Cole & Oil Shale Mine Workers' Superannuation Tribunal (unreported, Full Bench (Cahill VP, Glynn J, Hungerford J), No. 94 of 1989, 29 November 1989 at 5), the Act places an obligation on the respondent for the provision of suitable alternative duties once an incapacity of mind or body is found and the member cannot perform the duties of his office. 60 The appellant went on sick leave because of his psychiatric injuries. He never returned to work for the Police Service and made application for retirement because of three named infirmities. He was found to be disabled totally for any service due to one of those infirmities, his infirmity of mind, namely a generalised anxiety disorder.

61 The respondent submits as the appellant was found incapable of performing any office within the New South Wales Police Service be it general duties, or restricted duties solely and fundamentally because of his infirmity of mind, it would be a result "bordering on the absurd" for the appellant to succeed in this claim on the basis that he could not perform his own duties nor any other relevant duties because of his orthopaedic condition. The respondent submits the orthopaedic injuries are to be treated in isolation for this assessment.

62 What this case exposes is the question of the effect of multiple infirmities and their inclusion on the certificate. I do not find the knee injury led to an infirmity of body such as to render him incapable of performing some duties within the Police Service.

63 The respondent submits as a matter of policy and practice it does not issue a certificate for multiple injuries unless each injury standing alone prevents the member from discharging the duties of his office and any other office in the police force. It submitted it is not sufficient that a condition gives rise to partial incapacity only. The respondent submits the correct approach is to isolate the orthopaedic injury to see if it alone renders the appellant incapable of performing any duties. The Court rejects this submission. It is wrong in law and the policy and practice of the Department is not the issue.

64 The structure of the Police Regulation (Superannuation) Act 1906 is important. After the member is found, at the relevant time, because of an infirmity of mind or body, incapable of discharging the duties of his office there are a number of further steps to be taken under the Act before certification. It must be determined that the member is incapable of performing any other office not lower in rank which is available to the member and in which it would be reasonable to expect the member to be employed, before a certificate issues.

65 The effect on the rights of a worker arising out of two incapacities has been examined by the House of Lords sitting as the Appeals Court in Re Doudie v Kinneil Cannel & Coking Coal Co Ltd ((1947) AC 377 at 381). Viscount Simon summarised the issue being considered: The situation to be dealt with occurs where a workman meets with two accidents in succession, each of which arises out of and in the course of his employment and inflicts personal injury on him. The injury caused by the first accident gives rise to a weekly payment during partial incapacity, and while these circumstances continue to exist a second accident befalls him causing injury involving total incapacity, in respect of which the workman has a claim for compensation.

The Court considered two cases in conflict one to the other. The Scottish authority, McKinstrey v Auchinlea Coal Co ((1920) C.S. 75, 79) adopted the view incapacity "can never be more than total incapacity", however many injuries by accident "the man may have suffered from". Whereas the English Court of Appeal in Thompson v London & North Eastern Ry Co's Case ([1935] 2 KB 90) per Slesser L.J. says at 100: The partial incapacity is not so absorbed into the total incapacity that there is but one claim; there are two separate and continuing liabilities giving rise to two separate claims for compensation.

66 While the Court went on to consider the appropriate payment for compensation under the English Act it is upon the principle enunciated that this court seeks to rely.

67 In Doudie, Viscount Simon developed the principle stating: Once a liability to pay a weekly compensation in view of a degree of incapacity, whether total or partial, is established, the liability continues during the workman's life until the workman's capacity improves. To quote Lord Macmillan (1936 S.C. (H.L.) 12): It is now well settled that a workman who by reason of incapacity due to an accident is entitled to compensation does not lose that right merely because, through some extraneous supervening cause, such as illness or old-age, a natural incapacity is added to the incapacity due to his accident. the employer cannot plead that, as the workman would, by reason of his condition apart from the accident, be incapacitated in any event, he has lost his right to compensation. There is no merger of the accidental incapacity in the natural incapacity. M'Cann's case (1936) S.C.(H.L.) 12 approved a similar decision of the Court of Appeal in Harwood v Wyken Colliery Co ([1913] 2 K.B. 157), in which the observations of Hamilton L.J. ([1913] 2 K.B. 158) are particularly worthy of study. I agree with the view of the Court of Appeal in Thompson v London & North Eastern Ry Co's Case ([1935] 2 KB 90) that the reasoning in Harwood case ([1913] 2 K.B. 158) equally applies where the supervening cause is a subsequent accident creating total incapacity.

68 In Doudie, Lord Macmillan put it more succinctly saying (at 387): Where an accident occurs and injury is sustained by a workman the right to be compensated in respect of that accidental injury at once arises and must be assessed on its own merits. . . .

69 As to the issue of compensation, In Doudie, Viscount Simon found: . . . if a man is already partially incapacitated by accident and then meets with a second accident which incapacities him altogether, the second accident none the less is the event which produces total incapacity.

70 Their Lordships upheld Thompson's Case as reflecting the proper law. Doudie has been consistently followed in New South Wales. As was said in Sydney City Council v INCE & Anor [(1989) 16 NSWLR 690 at 698] per Clarke JA: The principle for which Doudie stands has been continuously applied in this State: Shaw v Darling Island Stevedoring & Lighterage Co Ltd [1957] WCR 134; Beaton v Yips & Co [1966] WCR 78; Gatti v Penfolds Wines Pty Ltd [1969] WCR 197 and Holmes v Civil & Civic Pty Ltd (1970) 72 SR (NSW) 583; 92 WN (NSW) 1021. In the latter case the Full Court of the Supreme Court applied Doudie in holding that it was open to the tribunal of fact to make separate awards of compensation in respect of two separate partial incapacities.

71 Similar circumstances are before the Court. The infirmity of the mind has been found to produce the total incapacity. However each injury creates a separate right. As to the knee, I have found this infirmity leads to a partial incapacity.

72 There is however only one total incapacity. On the Department's own submission there is no other office not lower in rank which is available to the member in which it would be reasonable to expect the member to be employed because of his infirmity of mind. The member, the appellant, was therefore incapable, at the relevant time, of performing any duties because of the effect of his generalised anxiety disorder leading to total incapability.

73 Having found he is incapable due to his knee injury from discharging the duties of his office in the police force and at the relevant time he was totally incapacitated from another injury the respondent submits, no office can be made available to the appellant not lower in rank in which it would be reasonable to expect the appellant to be employed. In accepting this submission the member passes all the relevant criteria under the Act to qualify for certification in relation to his knee injury so found.

74 The knee injury creates a separate right and should therefore be included on the certificate.

75 The appellant should receive certification that at the relevant time he suffered an infirmity of body, namely, a chrondomalacia patella condition in the right knee such as to make him incapable of discharging the duties of his office.

COSTS 76 The respondent asks for costs arising from this application under s181 of the Industrial Relations Act 1996. It concedes such a costs order is discretionary and notes the usual course is costs follow the event. It submits the merits of the appellant's claim are questionable; the lay evidence brought by the appellant did not assist his claim; the appellant had no ground for appeal; the appellant is in possession of assets capable of satisfying an award for costs and the respondent has been put to significant expense out of a fund.

77 There were two facts arising out of this litigation that must be given consideration in the costs application. The matter was originally set down for hearing on 17 June 1999 and an adjournment was granted because the appellant had not served medical reports on which he wished to rely. Such an adjournment application was not made until after the appellant's case had opened and counsel had completed his opening address then sought to tender the reports. Directions were given as to a timetable for the further preparation of the matter.

78 The appellant then filed a notice of motion seeking a different timetable. The Commission has already ordered costs in relation to the hearing of the notice of motion. The appellant further required a Dr Strum to attend for cross-examination in the hearing on 2 November 1999, and then did not require the said doctor, the doctor having cancelled all of his appointments for that day. The Court requires the respondent to meet the associated costs.

79 I have considered all these matters and so far as costs are concerned I order the respondent pay the appellant's costs with credit given to the respondent for the costs expended to prepare and meet the notice of motion including the costs of the day of 6 August 1999 and to the respondents' costs thrown away for the hearing day of 7 June 1999 when the appellant opened his case then requested the adjournment. 80 I uphold the appeal and make the following orders:

The appeal is allowed. 2. It is to be certified that the appellant is incapable from the infirmity of the body, namely, a chrondomalacia patella condition of the right knee of discharging the duties of his office. 3. Costs to the appellant as above.

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