David Ainsworth v SAS Trustee Corporation

Mr P O'Rourke of counsel Oates & Smith Solicitors LEGAL REPRESENTATIVES: Mr T Ower of counsel SAS Trustee Corporation

Appeal against the decisions of the SAS Trustee Corporation given on 9 October 2008 and 20 October 2009

1 The appellant, David John Ainsworth, has appealed under s 88 of the Superannuation Administration Act 1996 (SA Act) against two determinations made by the respondent, SAS Trustee Corporation (the respondent). In the first determination, dated 9 October 2008, the Disputes Committee, on referral by the respondent, declined the appellant's request to have his Certificate of Incapacity (Certificate) amended by adding to it the infirmities, "hearing loss and tinnitus and injury to right knee and injury to left knee". The stated basis for declining to amend the Certificate was expressed in a letter of 9 October 2008 as follows: The Committee determined this matter pursuant to section 67 of the Superannuation Administration Act 1996, be declining to amend the infirmity specified in the certificate of incapacity issued to Mr David Ainsworth on 26 November 1997 because he was granted the infirmity that he claimed, either expressly or implicitly, as at November 1997 and therefore, he cannot be a person aggrieved by the terms of that certificate. 2 The Certificate dated 26 November 1997 was issued following Mr Ainsworth's application to the Commissioner of Police for a medical discharge on 20 April 1997. In that application, the appellant claimed that he was incapable of discharging the duties of his office, and any other office not lower in rank to his then current position, by reason of the medical conditions, "post traumatic stress and severe post-traumatic stress".

3 The application for medical discharge was sent under cover of letter dated 24 July 1997 by the employee assistance branch of the NSW Police Service to the Police Superannuation Advisory Committee, a body with the delegated authority of the respondent with respect to Police Superannuation Schemes, to certify whether an officer is incapable under relevant provisions of the Police Regulation (Superannuation) Act 1906 (PRS Act) of discharging the duties of his or her office. The letter contained a recommendation that Mr Ainsworth's application for medical discharge be accepted. It advised that the appellant had been diagnosed as suffering from, "post traumatic stress disorder; reactive anxiety and reactive depression". Also attached to the letter were documents, including medical reports concerning the appellant's psychological infirmities. In addition, there was a brief reference to the appellant's right knee injury, expressed in the following way: There is medical evidence on file concerning a Right Knee condition. However, the Inspector has not claimed it as permanently incapacitating him, nor has it been raised by the PMO. 4 The Certificate certified that the appellant was "incapable, due to the specified infirmity of 'Post traumatic stress disorder; reactive depression and anxiety' of discharging the duties of his office and 'any other office in the police force'". 5 After the Certificate was granted, a delegate of the Commissioner of Police, on 8 December 1997, determined, in accordance with s 10B(3)(a) PRS Act, that the infirmities as certified (post traumatic stress disorder, reactive depression and anxiety) were caused by the appellant being "hurt on duty". 6 As a consequence, Mr Ainsworth was medically discharged from the NSW Police Force on 8 January 1998 and he commenced receiving a superannuation allowance in terms of s 10(1A) PRS Act. That superannuation allowance was equal to 72.75 percent of the appellant's attributed salary of office. 7 On or about 22 July 1998, the appellant's superannuation allowance was increased from 72.75 percent to 77 percent by the respondent pursuant to the provisions of s 10(1A)(b) PRS Act. 8 Subsequently, the appellant commuted part of his superannuation allowance. 9 On or about 29 November 2007, the appellant's superannuation allowance was again increased by the respondent to 84 percent of his attributed salary of office pursuant to s 10(1A)(b) PRS Act. 10 Mr Ainsworth, through his solicitors, filed a Statement of Claim on 9 May 2008 in the District Court of NSW. That Statement of Claim, in effect, appeals against the decision of the respondent to increase the superannuation allowance to 84 percent. The Statement of Claim seeks a determination, in terms of s 10(1A)(c) that the appellant is "totally incapacitated for work outside the police force and ... was hurt on duty because (he) 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". If successful, Mr Ainsworth's superannuation allowance would increase to an amount somewhere between 85 percent and 100 percent of his attributed salary of office. 11 The purpose of the present proceedings, so the Court was told, is to obtain certification of infirmities in addition to those already certified. In the event that the Court determines the additional infirmities, the Commissioner of Police will then need to determine whether or not, in terms of s 10B(3)(a) PRS Act, the additional certified infirmities were caused by Mr Ainsworth being hurt on duty. If this occurs, there will be relevant infirmities additional to those already certified for the District Court to consider when determining whether or not Mr Ainsworth is totally incapacitated. 12 The amendment to the Certificate granted on 26 November 1997 was sought by letter dated 7 July 2008, which was expressed in the following terms: We act for the above who we understand was provided with a certificate of incapacity pursuant to Section 8(1) and 10B(1) of the Police Regulation (Superannuation) Act 1906, as amended. It certified that your member was incapable of performing his duties due to the infirmities of " post traumatic stress disorder, reactive depression and anxiety " which was caused by the member being hurt on duty. At the time of applying for his medical discharge your member was suffering from the infirmities of " hearing loss and tinnitus and injury to right knee and injury to left knee " which has (sic) been omitted from the certificate of incapacity. We request that the infirmities of " hearing loss and tinnitus and injury to right knee and injury to left knee " be placed on that certificate. We enclose the following reports: 1. Dr Deveridge dated 21 March 2005. 2. Dr Silva dated 23 August 2005. 3. Dr Thomson dated 12 July 1994. 4. Dr Tamhane dated 2 June 2006. 13 The response to the letter of 7 July 2008 was the determination of 9 October 2008 (the first determination). The second determination dated 20 October 2009 advised as follows: I advise that the Disputes Committee met on 19 August 2009 and resolved that: The Committee determined that in the event that the Industrial Court of NSW finds Mr Ainsworth to be "an aggrieved person", then the evidence still doesn't justify any addition to the s 10B(1) certificate". It is intended that this determination will enable all matters in dispute to be decided by the Industrial Court at the same time, and obviate any need to refer the matter back to the Disputes Committee for further consideration. 14 The determinations by the respondent were made under s 67 of the SA Act, which provides: (1) A dispute under this or any other Act concerning an STC scheme is to be determined by STC or an STC disputes committee, except as otherwise provided by the regulations. (2) Regulations made for the purposes of subsection (1) may require that a dispute concerning the entitlements or obligations of an employee or beneficiary arising in respect of service by the employee with an employer that: (a) was responsible for the payment of benefits under an STC scheme of which the employee was a member or to which the employee was a contributor, and (b) has ceased to be responsible for the payment of benefits under the scheme but is responsible for the payment of benefits under a new superannuation scheme created in accordance with section 127, be determined, not by STC or an STC disputes committee, but by the trustee of the new superannuation scheme. (3) In determining a dispute, STC, an STC disputes committee or the relevant trustee may inform itself on any matter in such manner as it thinks fit and, in so doing, is not bound to observe rules of law relating to evidence. (4) A trustee acting in accordance with regulations referred to in subsection (2) and an STC disputes committee have and may exercise the powers conferred on STC by sections 66 and 68. (5) This section does not apply to a dispute in respect of which an application may be made to the District Court under section 21 of the Police Regulation (Superannuation) Act 1906. 15 Section 68 of the SA Act is also relevant. It provides: (1) STC may request a person who has made a claim against STC, or who has a dispute with STC, to provide STC with an authority to obtain from a third person any information or evidence that is relevant to the subject-matter of the claim or dispute. (2) If such a person does not comply with any such request, STC is not obliged to proceed to process the claim or determine the dispute concerned. 16 Section 88 of the SA Act is the mechanism under which an appellant, as the "person aggrieved", can bring an appeal against a determination of the respondent under s 67. Section 88 provides: (1) A person aggrieved by a determination of STC or an STC disputes committee under section 67 (relating to determination of disputes) may appeal against the determination to the Industrial Relations Commission in Court Session (the "Commission"). (2) The appeal must be made within 6 months after the appellant is notified of the determination or within such further period as the Commission allows. (3) In dealing with the appeal, the Commission may exercise any function that could have been exercised by STC or the STC disputes committee, as the case may be, in making the determination the subject of the appeal. (4) In dealing with the appeal, the Commission is to have regard to this Act and any other relevant provisions regulating the superannuation scheme concerned and such other matters as it considers to be relevant. (5) In dealing with the appeal, the Commission is not bound by the rules of evidence and may inform itself in any manner it thinks fit. (6) The final determination made by the Commission on the appeal is to be given effect to as if it were a determination of STC. 17 Under this statutory scheme, the respondent or the STC Disputes Committee determines a dispute in accordance with the provisions of s 67. A "person aggrieved" by a determination under s 67 may appeal against that determination to the Industrial Court under s 88. The appeal under s 88 proceeds as a hearing de novo: see, for example, Stanley v SAS Trustee Corporation [2009] NSWIRComm 96 at [2]. Was there a dispute between the parties under s 67? 18 In written submissions, the appellant, noting the absence of a definition of "dispute", in the legislation, submitted that the word should be given its ordinary dictionary definition of, "the act of disputing or arguing against"; "active verbal contention, controversy, debate"; "argumentation; verbal contention; a debate or controversy; a quarrel". In the context of the legislative scheme, the appellant submitted, there is no reason why the word should not be given its broadest meaning, that is, simply requiring a debate or controversy. It was further submitted that this construction is supported by the following considerations:

(i) The dispute most likely to arise for determination under s 67 is one between a trustee and a beneficiary under a superannuation scheme. The scheme provides valuable beneficial entitlements (upon satisfaction of certain legislative requirements) to the beneficiary. As such, given the nature of the scheme, there is provided valuable industrial rights in an employment context.

(ii) The duties of the respondent when performing its functions include ensuring that its functions are exercised in the best interests of persons entitled to receive benefits under the STC schemes. Further, it must have regard to the interests of persons entitled to receive benefits under the STC schemes. These obligations tell against a narrow interpretation of the word "dispute" which would have the effect of denying a beneficiary a consideration of his or her entitlements on their merits.

(iii) Section 33 Interpretation Act 1987 provides: In the interpretation of a provision of an Act ..., a construction that would promote the purpose or object underlying the Act ... (whether or not that purpose or object is expressly stated in the Act ...) shall be preferred to a construction that would not promote that purpose or object. The objects of the SA Act define legislative expression in s 3 of the Act. Relevantly, that section provides: The objects of this Act are as follows: (a) ... (b) ... (c) To set out the functions and responsibilities of trustees and service providers for state public sector superannuation schemes, (d) ...". These functions and responsibilities find broader expression in Part 3, Division 1 of the Act and include, as already stated, the duty to act in the best interests of persons entitled to receive benefits under the STC schemes. (iv) A narrow definition of "dispute" which allows the respondent to avoid reconsidering the nature and extent of infirmities certified in terms of s 10B(1) PRS Act is not consistent with the respondent's power to amend a s 10B(1) certificate and for that certificate to operate retrospectively. (v) A narrow definition of "dispute" has the potential to undermine the effective operation of the scheme and create hardship and injustice. 19 In written submissions, the appellant characterised the "dispute" as "(involving) the determination by the respondent to not amend that original certificate of infirmity given the application and the evidence that it had before it". Later, in written submissions, the appellant contended that what is relevant is the fact that the respondent determined to leave the original certificate unaltered, and, "[it] is that determination that gave rise to the dispute between the parties". 20 The appellant's contentions as to when the "dispute", as characterised, emerged (at the point of determination on 9 October 2008) was confirmed in the following exchange between the Bench and the appellant in oral submissions: HER HONOUR: How do you characterise a dispute; you say the dispute arose when the appellant wrote to the STC with a request to amend the certificate in the terms proposed - is that right? O'ROURKE: Your Honour, I think the dispute I suppose arises when that request for an amendment is denied. The application is made and, of course, it is open to the respondent to grant the application, therefore there would be no dispute. So the dispute effectively is enlivened by the fact the appellant is then written to and it is said, We are not going to give you what you want, we are not going to amend the certificate. The dispute, we say, is simply we want an amended certificate of incapacity and the respondent has said: You are not going to have one. 21 In my view, the appellant's submission as to when the "dispute" under s 67 emerged does not sit comfortably with the terms of the provision. Under s 67(1) a dispute is to be determined by the respondent or an STC Disputes Committee, and the dispute which falls to be determined concerns an STC scheme. There is no doubt that the respondent can be both a party to the dispute and resolve the dispute: see, for example, Barnes v Commissioner of Police for New South Wales and Anor (unreported, Carruthers J, Supreme Court, 19 October 1994 at p 4). According to the appellant, the dispute in the present proceedings arose at the point of determination by the STC Disputes Committee, that is, on 9 October 2008. It is at this point, however, that "a person aggrieved" by the determination may lodge an appeal against that determination under s 88(1) to the Industrial Court. On this construction, the dispute contemplated under s 67 cannot arise at the point of determination, but must arise at some earlier point in time. Some support for this construction is to be found in s 68, which is linked to s 67 (see for example, s 67(4)). The reference to "dispute" in s 68 contemplates in its terms that the dispute with the respondent precedes the request made by the respondent for an authority to obtain information from a third party, that is, the dispute does not arise at the point of determination but at an earlier time. 22 This construction of s 67 accords with the construction contended for by the respondent. According to the respondent, once it made its determination (on 9 October 2008), s 88 became available to the appellant as "a person aggrieved" by the determination. An application under s 88 is, in itself, in the nature of a dispute, but it is not the dispute to which s 67 is directed. A dispute, in order to arise under s 67, must be predicated upon some valid reason for revisiting the original decision (to grant the certificate of incapacity). In the present circumstances, however, all the appellant sought in the letter of 7 July 2008 was an amendment to the certificate without proffering any reasons for his request. In short, no reasons were provided to the respondent to enable it to consider whether the physical infirmities sought to be added to the certificate rendered the appellant incapable of discharging the duties of his office, as required under s 10B(1) of the PRS Act. 23 I should interpolate in order to provide some explanation for the respondent's latter submission that a further issue raised by the parties concerns which version of s 10B(1) applies in the event the Court finds that there was, at the relevant time, a "dispute" between the parties under s 67 SA Act. Section 10B(1) was repealed and replaced by a new s 10B(1) which came into effect on 4 July 2008. The earlier version (upon which the respondent proposes, if necessary, to rely) provided: (1) An annual superannuation allowance shall not be granted under section 10 to a member of the police force who is discharged 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 a specified infirmity of body or mind of the member at the time of the certification, of discharging the duties of the member's office. 24 The current version, upon which the appellant is proposing to rely, provides: (1) An annual superannuation allowance or gratuity must not be granted under section 10 to a member of the police force who is discharged 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 a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990. 25 The issue of which version, if any, of s 10B(1) should apply, will need to be considered at a later stage. Returning to the present issue under consideration, it is the Court's view that the appellant's request made on 7 July 2008 to add infirmities to the Certificate, without more, cannot, on the broadest characterisation, amount to a "dispute" (which must be determined) contemplated by the terms of s 67. 26 That is not, however, the end of the matter. The appellant relied on evidence tendered during the proceedings that, it was said, would provide support for a finding that the additional physical infirmities now sought to be added to the Certificate had been omitted from that Certificate because the appellant had been overwhelmed by his psychological infirmities at the time he completed his application for medical discharge. This evidence, if accepted, would, according to the appellant, provide a proper basis for the existence of a dispute between the parties within the terms contemplated by s 67. 27 The respondent conceded that if the evidence on this issue was accepted by the Court then that would provide a "cogent reason" for the respondent to "potentially revisit the terms of the original s 10B(1) Certificate". 28 I intend, therefore, to consider the evidence relied upon to establish whether or not the appellant was so overwhelmed by the extent of his psychological injuries at the time he completed his application for medical discharge that he omitted, at that time, to include his physical infirmities, namely, his knee injuries and his hearing loss and tinnitus. 29 The appellant, in his affidavit, stated: At the time I made my Application for Medical Discharge (April 1997) and at all times up to the date of my medical discharge, I did not think to include in my application the ongoing problems I was having at that time in relation to either my right or left knee. At these times I was suffering a great number of serious psychological symptoms and it was these symptoms and their causes which overwhelmed my thought processes. At no time from the date of my Application for Medical Discharge until my medical discharge from the NSW Police Force, was I asked by anybody within the NSW Police Force or by anybody representing the SAS Trustee Corporation whether or not there were other injuries or disabilities from which I suffered that might give rise to a certificate of infirmity or incapacity leading to medical discharge. 30 The appellant was cross-examined on the issue at some length during the proceedings. When the appellant completed his application for a medical discharge he attached to the application a 23-page statement made by him. He was asked in cross-examination why he omitted his knee injuries and his tinnitus from the application. He was asked whether it was an oversight on his part. He responded: I had forgotten completely about it, to be honest, an oversight.

He confirmed that he considered his knees were "incapacitating" at that time. With regard to his tinnitus he said: I will be honest with you, I didn't even know what tinnitus was at that time. 31 The appellant agreed that his 23-page statement contained no references to his injured left knee, or his tinnitus, or hearing loss and that, although the statement did refer to an operation performed on his injured right knee, there was no indication in the statement of a continuing problem with that knee that would have prevented him from performing his duties of office after he returned to work. He agreed with the proposition that he was so pre-occupied with his psychiatric problems that he did not mention his right knee (in his medical discharge application). There were further exchanges on this issue, some of the more relevant exchanges have been extracted below: Q. Could it be that - bearing that in mind that your condition is now not what it was back in 1997, is it a bit difficult for you to actually pin point how bad things were so far as your knees and hearing loss was concerned in 1997? A. It's not difficult. My knees were a mess, particularly my right knee was an absolute mess. As I said, I couldn't walk very far, I couldn't drive very far unless I got out and stretched it. Just mowing -- Q. What I'm suggesting, Mr Ainsworth, is with the passage of time couldn't it be the case that you are telescoping, if you like, those problems that you developed later to an earlier period of time? A. Dr Thompson and Dr Sullivan both told me that I should have knee replacement much prior to when I had but I was too young in their opinion. They wanted me to wait until 60 but, as you say, they just kept deteriorating. Q. What I'm attempting to ask you about is what your condition was like in 1997, do you understand that? A. Yes, it wasn't good, I had difficulty in hearing. Q. When you submitted your application for medical discharge the situation was that you had a serious psychiatric complaint, correct? A. Yes. Q. You did have an orthopaedic problem with both of your knees? A. Yes. Q. But what I'm putting to you is, as at 1997, that orthopaedic problem wasn't incapacitating you for the duties of your office? A. I believe it was, in my opinion. ... Q. You say it was an oversight that in the document, which is annexure V, you didn't put anything there about your knee problems or your hearing problems, correct? A. Yes, I didn't think about it at the time. Q. Is it similarly the case that it was an oversight that you didn't put anything about your knees having an impact upon your capacity to perform your duties as well as your hearing loss having an impact in that 22-page statement? A. Yes. Q. Subsequent to submitting a claim for medical discharge you received a letter from the respondent in this case, which is annexure X. If I could take you to that, that is page 88 of the bundle? A. Yes. Q. You were receiving this letter? A. Yes, I do. Q. You were aware when you received this letter that the infirmities that are listed there at the end of paragraph 2 had been approved? A. Yes, that's correct. Q. So, in other words, post-traumatic stress disorder, reactive depression and anxiety? A. Yes. Q. You see, in paragraph 3 where you are invited to dispute the decision if you wanted to? A. Yes. Q. And you didn't dispute the decision? A. No. Q. You were content at that time with the certificate that had been granted, correct? A. Yes. As I said before, I thought that it included my medical history but it unfortunately didn't. Q. You were granted an infirmity which encompassed what you had asked for, correct? A. Yes, that's correct. Q. And at that stage you weren't asking for anything more, were you? A. No. Q. It didn't occur to you to lodge a dispute at that stage so far as your knees were concerned? A. No. Q. And it didn't occur to you to lodge a dispute at that stage so far as your hearing loss or tinnitus was concerned? A. No. Q. Why not? A. Again I didn't seek the advice from the Police Association, I did it myself. I was in such a state, and that is my reason, I didn't think of it. Q. You see, earlier you had received some legal advice concerning lump sum benefits so far as your knees were concerned, correct? A. Yes, that's correct. Q. And you made an application for hurt on duty in relation to your knees, correct? A. Yes, that's correct. Q. So you had claimed in relation to your knees in the past? A. That's correct. Q. And it didn't occur to you to do it at this stage? A. That's what I mean, I thought it would have been assessed with my overall application for a medical discharge. I understand the grounds I put in there, but I thought it would have been, or I would have been asked about my knees. Q. Why would you make that assumption when you hadn't included your knees on the medical discharge application? A. I don't know, I can't answer that properly. 32 The appellant was also asked questions about applications he made to the respondent for increases to his pension benefits. The relevant material is extracted below: Q. You understood that the application for increase would be assessed on the basis of your ability to work outside the Police Force, correct? A. Yes. Q. And you did not feel the need to seek any legal advice on that, correct? A. No. Q. Nor any assistance from the Police Association? A. No. Q. You prepared this application yourself? A. Yes, I did. Q. And, despite what effects you may have been suffering from your psychiatric complaints, you did not overlook to say something about your right knee, correct? A. Yes, that's correct. Q. However, you did overlook to say anything about your left knee, is this right? A. Yes. Q. You also overlook to say anything about your hearing loss or tinnitus? A. Yes. Q. Given that your right knee was something that you had considered and you entered in this application, why on earth didn't you lodge a dispute at that stage so far as the terms of your infirmity were concerned? A. I was getting to sleep about 4, 4.30am in the morning, I was awake all night, I was on strong antidepressants and I hadn't thought about the right knee let along anything else, I was crying, my wife would come home and I would be on the bed or out on the concrete floor of the garage crying or asleep or something during the day. Q. It was true you could concentrate sufficiently to prepare a submission? A. Yes. Q. It was true you were in a state that you could have at least made an application of this kind on your behalf? A. Yes. 33 The appellant also agreed under cross-examination that his "knee condition" significantly deteriorated after March 1998, that is, after he was medically discharged, although he repeated that his knees were "bad all the time", and were, "progressively getting worse and worse". 34 The other evidence on this issue was given by Mr Gerry Wenzel, the appellant's treating psychologist. Mr Wenzel, in a report dated 1 February 2010, said: In my clinical opinion given the severity of his psychological state it is reasonable that Mr Ainsworth failed to record his knee condition as part of his application for medical discharge. Mr Ainsworth's oversight in mentioning his knee condition at the time of making his application can be attributed to the severity of his depression and anxiety symptoms which typically result in cognitive impairments like memory, concentration and decision making. In my initial assessment Mr Ainsworth had referred to his knee problems and the impact this was having on his chronic psychological conditions. Given that his initial application appears to have related to his chronic post traumatic stress disorder, which seems to have the most debilitating at the time, in all probability Mr Ainsworth's impaired reasoning at that time more than likely resulted in the omission to mention his knee pathology. 35 Mr Wenzel was cross-examined on the contents of his report. Mr Wenzel confirmed that the appellant has been consulting him on a professional basis since 1997. 36 In examination in chief, Mr Wenzel explained that his opinions about the reasonableness or otherwise of the appellant's failure to record his knee condition on his medical discharge application, which he said was attributable to the severity of his psychological state, were based upon his understanding of the appellant's state of mind in 1997. He was shown the appellant's 23-page document and advised that it had been prepared by the appellant for the purposes of his medical discharge application. His attention was specifically directed to a part of the statement where the appellant had made reference to major operations on his right knee. He was asked whether he maintained his opinions in light of the information provided by the appellant at the time of his application. He responded: A. I guess he has drawn reference to it but as a psychologist he saw me for psychological matters; not for physical things so while he mentioned the knees I am not really part of the treatment for that aspect except for dealing with the mental consequences. I guess when you put this together I guess his main worry was the post traumatic distress disorder. That is what he focused on and I guess the knee is a reference to safety issues. 37 Before proceeding further, the reference to "safety issues" should be clarified. The appellant's statement accompanying his application for medical discharge set out the following material referable to his injured right knee: In 1993, prior to having a major operation to my right knee, in my own words, I cracked up. I went to work and broke down whilst telling the Patrol Commander what I had been going through for the past three years. The Patrol Commander contacted Mrs Rae DOAK from the rehabilitation unit and Mrs DOAK attended the Wollongong Police Station where I had a lengthy conversation with her in relation to the SCERRI, and other matters that had caused me a great deal of concern. Mrs DOAK arrange for a police psychologist to come down the following day and talk with me which she did. I was supplied with relaxation tapes following that conversation. At that time I was greatly concerned about my family, and my safety once I had my knee operation as I felt that I could not protect them. Following that operation I had three months off work to recover. During that period I had visits from the Senior Sergeant who was in charge of the Welfare Branch, and also a woman from the Welfare Branch. I told both of my concerns and what I had gone through. I discussed with them, and a Senior Police Officer whether or not to apply for 'Hurt on Duty' due to these incidents. As I knew that I wanted promotion in the New South Wales Police Service all agreed that it would harm my prospects for future promotion if I applied for hurt on duty relating to these matters especially the SCERRI matter. That is the reason that I did not make an application for hurt on duty at that time. I am still concerned about the SCERRI family and his eventual release on the 26 September 2004. The Psychologist that I am seeing has dealt with a victim of SCERRI and stated that a man of his make up unless he receives the best psychiatrist assistance will not change and will be very dangerous upon his release. He has confirmed by exact feelings about SCERRI. 38 During cross-examination, it was put to Mr Wenzel that the comprehensiveness and detail in the statement tended to contradict Mr Wenzel's assumptions drawn in the report with regard to cognitive impairments, concentration and decision-making. He responded: A. No, not at all because Mr Ainsworth was quite pre-occupied about those particular aspects, that's what he believed was the main reason he was leaving the Police Service, but he had a host of other problems as well. I mean, he is the sort of man that often kept things to himself and I don't know how long it took him to put that application together but I would imagine it would have taken a tremendous amount of time in editing, which again would take much much longer than it would normally if he was of clear mind. 39 Further cross-examination on the matter elicited the following responses: Q. As far as his memory was concerned for being able to recall events of a traumatic nature and record them in April 1997, he did not display any deficit memory; correct? A. I don't know, he may have been working off a notebook or written material that he referred to, I don't know. I was not part of putting his application together. I made a general reference to cognitive impairment secondary to severe depression because in the clinical domain it is something patients frequently complain of. Q. He didn't complain to you of it, did he? A. He did as part of his normal complaints. I went through my clinical notes going back to 1997, I did bring them in, but with depressed patients, one of the standardised psychological tests we use is the Beck Depression Inventory - this is the old one, this is not the Beck Depression Inventory, this is the old one. We don't use that one any more. Q. Are you seriously saying that Mr Ainsworth complained to you of problems with his memory? A. When I see depressed people such as Mr Ainsworth, this is across the board, they complain of memory and concentration deficits. If you want to look at the medical and psychological literature you will find reference to cognitive impairment as a consequence of severe depression. Q. I'm asking about Mr Ainsworth, do you understand? A. Yes, that's what he was like when he first came into my care, yes. Q. But the answer you gave then was about people in general that you see? A. Yes, but Mr Ainsworth also had severe depression like people in general. Q. Are you assuming then that he had impairment of memory? A. Unless it is written down it is part and parcel of the condition with which he presented. Q. If he had complained to you of problems with his memory, concentration and decision-making, you would have recorded it; correct? A. I may well have. I'm just looking for a reference to it right now. Q. I take it you could find those references if we go through your other reports? A. Yes, it probably would be there somewhere. Q. But you certainly don't mention it in your report dated 1 February 2010? A. 2010, that's the one I do refer to his cognitive deficits in, yes. I was asked for an opinion as to whether or not that would have affected him at the time. That was my opinion. Now, I know it's with hindsight but that's the best I can do at this stage. 40 In closing submissions, the respondent contended that the appellant's "very comprehensive, very logically sequenced" 23-page statement tended to contradict Mr Wenzel's thesis that the appellant was "cognitively impaired at the time he made the statement". 41 The following exchange then took place between the Bench and the respondent: HER HONOUR: Isn't another way of looking at it that, yes, it is a very comprehensive application on the part of the appellant but it was done in circumstances where the uttermost (sic) reason was the psychological symptoms and in circumstances where the appellant had no legal advice and those matters, together with the evidence, would not necessarily discount the fact that the physical injuries were also very real and also incapacitating at the same time. OWER: I accept the first past, your Honour, but in terms of the physical matters being incapacitating at the same time, we are talking about an Inspector of Police who was making application for medical discharge and he does not mention his knee operation within the context of his psychological condition. Although I take on board what your Honour says about, yes, he was focussed on the psychological condition, there is no doubt about that, to neglect to actually say anything about the knees when your Honour has heard quite strident evidence about the problems he was encountering at the time is a little inconsistent, with respect. HER HONOUR: His knees? OWER: Yes, your Honour. The submission I make is the one I place there, the more likely explanation is the knees were not incapacitating at that time. HER HONOUR: That would require me to make an assessment of reliability of the evidence on this issue, wouldn't it, the reliability of the appellant's evidence on that issue. OWER: Yes, your Honour - and indeed I don't suggest to your Honour in any way that Mr Ainsworth hasn't attempted to be truthful. It is simply the accuracy of what he says. 42 The acceptance by the respondent of the first limb of the proposition suggested by the Bench is consistent in one significant respect with the appellant's evidence that he was in fact focused primarily on his psychological injuries at the time he completed his medical discharge application. The respondent's primary contention on this issue was that the appellant's failure to mention his knee injuries was not consistent with the appellant's evidence that his knee injuries were incapacitating. The respondent accepted, however, that the appellant was a truthful witness, it was the accuracy of his evidence (or some of his evidence) that was in issue. 43 The effect of the appellant's evidence on the issue, therefore, is that he was primarily focused on his psychological injuries at the time he completed the application and the failure to include his physical injuries in his application may be attributed to an oversight on his part. Given this matter, a "cogent reason" (to use the respondent's terminology), in my view, exists to revisit the terms of the s 10B(1) Certificate. What falls next for consideration is whether the appellant was incapacitated by his physical injuries at the time of completing his medical discharge application. Which version of s 10B(1) applies? 44 This consideration raises the necessity to decide which version of s 10B(1) applies to the appellant. As indicated earlier, the appellant contended that the most recent version applied. The respondent contended for the earlier version. 45 The respective positions of the parties, shortly stated, is that the appellant contends that the current version applies because the operative date is when the respondent made its determination not to amend the Certificate (on 9 October 2008). The respondent's contention is that the amendment was, and is, sought to be made to a certificate issued in 1997. The operative date is therefore 1997. 46 The most recent version of s 10B(1) was intended to overcome the affect of the decision in Morley v SAS Trustee Corporation (2007) 162 IR 177. In that decision, the Full Court considered an interim version of s 10B in the context of a police officer (Mr Morley) who had been medically retired on 31 January 2002. At the time of his retirement, Mr Morley held the rank of Superintendent. The relevant provisions of s 10B, in force at the time, were the following: (1) An annual superannuation allowance shall not be granted under section 10 to a member of the police force who is discharged 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 a specified infirmity of body or mind of the member at the time of the certification, of discharging the duties of the member's office. (2A) 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. (2B) STC may certify that a former member of the police force was incapable of discharging the duties of the member's office if the member was 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. (2BA) For the purposes of subsections (2A) and (2B), the duties of the office in the police force in which a member of the police force is then or was employed includes (but is not limited to) the duties of a police officer referred to in section 14(1) of the Police Act 1990. 47 The issue before the Full Court was the interpretation of s 10B(2BA) with regard to the functions conferred or imposed on a constable under s 14 of the Police Act 1990. For completeness, s 14 provides: (1) In addition to any other functions, a police officer has the functions conferred or imposed on a constable by or under any law (including the common law) of the State. (2) Nothing in this section confers on a police officer a power to exercise a function in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002. 48 The Full Court construed s 10B(2BA) as requiring consideration of the duties of a constable by reference to the particular rank or position held by the police officer under consideration. The relevant parts of the judgment are extracted below: [26] At the outset we observe that the effect of the appellant's contention is that every officer carries, theoretically, the full range of duties of a constable which may be called upon and s 10B(2BA) requires the testing of the physical or mental capacity of an officer against the full range of the potential duties of a constable. For the reasons we shall give, we do not accept that this is the proper interpretation of the test in s 10B(2BA). ... [30] We do not accept the appellant's submissions regarding Griffiths . We consider that the proposition that the respondent is seeking to draw from Griffiths is not related to the provision of an exhaustive list of the duties of a constable. Rather, we consider Griffiths supports the notion that different ranks within the police force can undertake the functions of a constable in different ways, relevantly by direct action or by planning or directing the actions of others. We accept the relevance of Griffiths in this regard. [31] Further, we agree with the respondent that in approaching the proper interpretation of s 10B(2BA) it is necessary to have regard to how the duties of a constable would be performed and that this is done by reference to the particular rank or office of the police officer under consideration. In other words, we consider that the function of every police officer includes the common law obligations or functions of a constable but that the way in which those functions will be carried out in a particular instance and at a particular point in time will be determined by reference to the particular rank or position held by the police officer under consideration. 49 It is convenient at this point to set out the most recent amendments to s 10B, in force as at 4 July 2008: (1) An annual superannuation allowance or gratuity must not be granted under section 10 to a member of the police force who is discharged 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 a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990. (2) An annual superannuation allowance or gratuity must not be granted under section 10 to a former member of the police force who resigned or retired unless: (a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, and (b) if the regulations so require, the notification was in the prescribed form, and (c) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was incapable, from that infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990 at the time of the member's resignation or retirement. (2A) For the purposes of determining a member's or former member's incapacity under this section: (a) STC is not to have regard to the member's or former member's actual rank or position or any functions (other than the functions referred to in subsection (2)(c)) of the member or former member at the time to which the certification relates, and (b) the capacity to exercise a function by delegation is not taken to be a capacity to personally exercise the function. 50 The Explanatory Notes give some guidance to the legislature's intention with regard to the amendments (the reference to the Principal Act is a reference to the PRS Act): Benefits are payable under the Principal Act to members or former members of the Police Superannuation Scheme who are discharged, or who have been hurt on duty, and who are certified by the SAS Trustee Corporation to be incapable, from infirmity of body or mind, of discharging the duties of the member's duties of office, Schedule 2 [13] and [17] amend sections 8 and 10B of the Principal Act to make it clear that such a certificate is to be given if the member or former member is incapable, from infirmity of body or mind, of exercising the functions including referred to in that section are those conferred or imposed on a constable by or under any law (including the common law) of the State. The new provisions also make it clear that the SAS Trustee Corporation must not base its determination on the member's or former member's actual rank or position or functions and must not determine that a member or former member has the capacity to exercise a function unless it can be personally exercised (other than by delegation). The proposed amendments remove the requirement to consider whether the member as former member is incapable of performing the duties of their actual office as well as the current prohibition on giving a certificate unless a member or former member is incapable of discharging the duties of their own office and any other available and reasonable office. The proposed amendments are intended to overcome the effect of the decision in Morley v SAS Trustee Corporation [2007] NSWIRComm 90 in which the Industrial Court held that, in considering whether an officer was capable of performing the duties of a constable as referred to in section 14 of the Police Act 1990 and the officer's duties generally, it was appropriate to have regard to the particular rank or office of the police officer concerned. As referred to above, the proposed amendments expressly state that regard is not to be had to a police officer's or former police officer's actual rank or functions when determining incapacity. 51 The amendments to s 10B address criteria to be applied by the respondent when determining whether to issue a certificate of incapacity. A police officer must demonstrate that he or she has a specified infirmity, or infirmities, (it was not in contest that a certificate could include multiple infirmities) that render him or her "incapable" of "personally exercising the functions of a police officer ...". The present circumstances concern an application made on 7 July 2008 to amend the Certificate granted in 1997. That application and the respondent's determination to refuse it post-date the recent amendments to s 10B which came into effect on 4 July 2008. The application sought amendments to the 1997 Certificate by the addition of specified physical infirmities. 52 An issue between the parties was whether the recently enacted provisions have retrospective or prospective effect. WC Pearce and RS Geddes' book on Statutory Interpretation in Australia (6th Edn) was relied upon by the applicant as providing assistance in resolving the issue. The relevant extract from the book is set out below: [10.4] It is important when considering the question of retrospectivity to draw a distinction between legislation having a prior effect on past events and legislation basing future action on past events. Jordan CJ contrasted these circumstances in Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27 at 31: ... as regards any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of further particular rights or liabilities. The Victorian Full Supreme Court put the matter succinctly in Robertson v City of Nunawading [1973] VR 819 at 824: '[the] principle is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that'. Numerous examples can be found of the courts applying this distinction. One of the most frequently cited (perhaps because of the nature of its facts) is Re a Solicitor's Clerk [1957] 1 WLR 1219. The clerk was convicted in 1953 on charges of larceny but no order could be made under the Solicitors Act as it then stood prohibiting him from being employed as a solicitor's clerk because he had not stolen from his employer or his employer's client. The Act was subsequently amended to allow such an order to be made in the case of any conviction for larceny. The clerk argued that to apply the amendment to him would be to give it retrospective operation. This argument was rejected by the court on the ground that no retrospectivity was involved. The Act had future operation only, even if the conduct on which it depended had taken place in the past. Although the prohibition was based on a conviction that had occurred before the commencement of the Act, it operated in the future. On the other hand, the Act would have had retrospective operation if anything done before its commencement had been declared void or voidable or if a penalty had been inflicted for having carried out a particular function before the Act came into force. 53 In the present proceedings the Court has been asked to effectively "stand in the shoes" of the respondent and determine whether the application to amend the Certificate should be granted. There was no issue that the Certificate may be amended: Barnes at p4; Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 31 at [23]. 54 The respondent submitted that, "one must be wary of ... interference with rights that have already crystallised and the rights so far as the s 10B(1) Certificate have well and truly crystallised". 55 No other submissions of substance were relied upon or advanced by either party on the issue. It is my view that the recent amendment to s 10B(1) (there was no contest that the relevant change to s 10B(1) constituted an amendment) involves a change to a procedure, that is, a procedure which prescribes how a police officer who is medically discharged may be granted an annual superannuation allowance or gratuity under s 10 of the PSR Act. It is a necessary pre-condition to the grant of a benefit under s 10 that the police officer be certified as incapable in accordance with the terms of the provision. The provision therefore has prospective, or future, operation and merely takes account of antecedent facts and circumstances as the basis for the determination as to whether or not to grant the certificate (as a pre-condition to the grant of a benefit). 56 The application and significance of procedural provisions to past events was considered by the High Court in Rodway v The Queen (1990) 169 CLR 515 at 518: The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. Was the appellant "incapable" by reason of his physical infirmities? 57 I return to consider the outstanding issue whether the appellant was "incapable" in accordance with the provisions of s 10B(1). Before embarking on an analysis of the facts, it is necessary to mention one further matter. In Woodlands v SAS Trustee Corporation (2001) 109 IR 132, Hungerford J formulated the test to be applied when considering whether to add a further specified infirmity or specified infirmities to a certificate granted under s 10B(1). According to Hungerford J, it is not open to add another infirmity unless that infirmity was causally connected to the incapability of the police officer to perform his or her duties (at [38]). The test was approved by a Full Court in SAS Trustee Corporation v Daykin (2002) 115 IR 172 at [29]. 58 What must be ascertained therefore is whether the appellant's knee injuries and his hearing loss and tinnitus amount to infirmities which were causally connected to an incapacity to personally exercise the functions of a police officer referred to in s 14(1) of the Police Act. A definition of "infirmity" appears in Daykin. The Full Court in Daykin adopted and approved (at [24]) a definition of infirmity formulated by Cullen J in Adams v State Authorities Superannuation Board (unreported, 90/551, 5 December 1991) as, "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". 59 I adopt and apply "the Daykin test" and the definition of "infirmity" adopted in that judgment to the present proceedings. 60 The appellant's symptomatology with regard to his knee injuries prior to the date of his application to medical discharge is set out in his affidavit: For some years prior to going off on sick report on 5 January 1997 and at all times thereafter up to the date of my discharge (8 January 1998) and ongoing, I was suffering symptoms in relation to my right knee and left knee. In relation to my right knee, those symptoms included constant pain of varying degrees, regular swelling, the necessity to walk with a limp, the sensation of the knee clicking and giving way. These symptoms worsened when I performed physical activities. These symptoms caused me great difficulty in being able to squat, kneel and walk over distances. I had great difficulties in running. I had great difficulties going up and down stairs. I had an increase in my pain and discomfort if I was to walk and carry any substantial weight. The pain and discomfort in my knee would increase significantly with any unexpected or awkward movement of that knee. Over the period mentioned above, the symptoms in my left knee were similar to those in my right but not as severe. These symptoms caused me to have the same disability as I have described in relation to my right knee. At all relevant times and, particularly, as at my date of discharge from the NSW Police, these symptoms and disabilities would have made it impossible for me to perform the full duties expected of me as a police officer. In particular, I would not have been able to run so as to chase suspects or offenders. I would have been able to struggle with, restrain and detain offenders because of the likely impact on my symptoms as a result of unexpected and violent movements. I could not have performed mobile patrols because of the need to remain in a police car for long periods of time. This would have led to my knees remaining in a fixed position within the vehicle causing a substantial increase in the pain and discomfort that I experienced. I could not have performed the duties of a beat police officer as I would not have been able to walk for substantial periods of time. Further, I would not have been able to walk up and down stairs or up and down difficult terrain. I would not have been able to perform rescue or search duties in the event that they involved walking or clambering over uneven or hilly terrain. I would have been able to walk through or crawl in confined spaces. I have earlier made reference to my resignation from SWOS in 1995. The duties performed with SWOS were of a specialised nature and the training required was of a more regular and demanding nature than the duties and training required of a non-specialist police officer. However, parts of the SWOS duties and training could often be encountered, in the course of the performance of their duties by non-specialist police officers. For example, whether I was in SWOS or not, as a sworn police officer, I could be required to chase after suspects (including running, jumping, negotiating flights of stairs, rough, uneven or hilly ground). I could be required to wrestle, subdue and arrest violent criminals. Further, the duties of a police officer always required a capacity to maintain fitness, a capacity to run, climb, crouch, squat, walk, run or crawl in awkward or confined spaces. My difficulties in performing these duties and exercises with SWOS confirmed in my mind that I had an inability to perform these duties and exercises as a police officer at any time after 1995 and certainly at the date of my medical discharge. This inability was because of the degree of pain, swelling, discomfort and giving way I experienced in my right and left knees. Following the high tibial operation performed on my right knee when I returned to work as the Patrol Tactician, I would be sitting in my office with my left foot up as my left ankle was painful and swollen to twice its normal size. As I have indicated, I commenced work as a patrol tactician in January 1992. In addition to the administrative functions of that job, I was required to attend patrol operations (e.g. accident and crime scenes and arrests). However, over time, I noticed was not fulfilling my duties at these scenes. I would delegate tasks that I would otherwise perform. I would stand back rather than become involved in any heavy lifting, awkward movements or carrying. All operations involving drug plantations I would avoid carrying exhibits of any weight. I failed to do these things because if I did do I would experience significantly greater levels of pain in my knees. In the latter part of my service I would have to obtain assistance from other police officers to assist me with a number of matters and to lift heavy objects for me. For example, I would ask other police officers to lift heavy objects for me. Often other police officers would go out and purchase lunch for me as to walk down the street would aggravate the pain and discomfort in my knees. I remember one time it was necessary to move a safe from the office in Wollongong to the Patrol Commander's office. I had to ask four other colleagues to do this whereas before my knee injuries I would have assisted with this job. 61 In addition to the foregoing problems associated with his knee injuries, an incident which took place on 14 November 2006 should also be mentioned. The account of that incident was set out in the appellant's 23-page statement, appended to his application for medical discharge. At that time, the appellant was the Patrol Commander at Dapto. He had travelled to Sydney to attend assessment examinations at Parramatta. While in his hotel room he heard shouts and the sound of a car travelling at high speed. He looked out the window and saw two people, whom he thought were plain clothes police officers, approach a Tarago van occupied by a male driver and one male passenger. He witnessed an altercation between the police and the two men which escalated when one of the police officers screamed for help upon discovering that his assailant had a gun. Without thinking, the appellant said he "raced down the stairs" in order to render assistance. He took hold of the offender's leg and was engaged in a "violent struggle" which lasted for about 30 minutes. He described the incident as, "the most violent arrest and most frightening situation that I have ever been involved in". At one stage, the offender bit him on his left arm, drawing blood. 62 In oral examination, the appellant said that during the altercation his knees were "banging on the ground". He said his whole body was "reacting" and that his knees, "in particular were throbbing, aching and the pain in them, especially this right one ... when it stopped both knees were swollen". In cross-examination, he described his actions, running down the stairs, as being motivated by "pure adrenaline". He said his knees were always swollen before the incident and he experienced pain in his knees on a daily basis. He was taking anti-inflammatory tablets for his knees which were prescribed by his G.P., Dr Watson. Medical evidence of incapacity 63 The appellant's account with regard to his knee injuries was largely supported in a number of medical reports which were tendered during the proceedings. In 1993, an orthopaedic surgeon, Dr Neil Thomson, performed an arthroscopy on the appellant's right knee. According to Dr Thomson's report, the examination revealed: ... a degenerative flap tear of the medial meniscus and also degenerative change in the medial compartment of the joint. There was a grade II erosive change on the medial facet of the retropatella surface. 64 The report recommended: The patient may well have some continuing complaints of pain and may have to consider the need for a high tibial osteotomy. 65 Some months later, in August 1993, Dr Thomson performed a high tibial osteotomy on the appellant's right knee. The operation was not entirely successful. In a report dated 15 March 1994, Dr Thomson wrote: This patient has progressed satisfactorily from his right tibial osteotomy. He still has crepitus in the right knee, but range of movement is improved and the pain is subsiding. Unfortunately, he has developed swelling and pain in his left ankle due to overloading his left ankle. He is to see me again with x-rays of his ankles and feet. 66 Further reports by Dr Thomson in 1995 contained the following observations: When reviewed on the 15th March, 1994 he was progressing satisfactorily. There is still some crepitus in his right knee. Unfortunately, at that time he had also developed some pain in his left ankle. Opinion : This man has suffered from early osteoarthritis of his right knee joint affection (sic) the medial compartment. He has suffered a work injury which has aggravated his underlying condition and brought about increase of his pain syndrome. He has required arthroscopic inspection of the knee joint and a high tibial osteotomy to unload the medial compartment of the knee joint. His progress is satisfactory. He has been able to return to work but still has some discomfort arising from the right knee joint. There is always the possibility that there may be further deterioration of his arthritic condition and this may well be accelerated by his injury. It is hopeful that the operative procedure will delay acceleration of the disease. There is always the possibility that if his knee deteriorates he will have to consider a right knee replacement. ... The right knee tends to throb in bed at night and the knee continues to swell. He said that both knees and big toes are swelling and he has swelling in his left ankle. There is some pain in the region of the staple in the right knee after his tibial osteotomy. It may be wise to remove the staple. ... He continues to have pain arising from his knees and left hip. At the present time this is being managed with medication and an exercise program. 67 The appellant was seen by Dr Garry E Scarf on 23 May 1994. In a report based on his examination of the appellant's lower limbs, he wrote: His symptoms related to the medial knee area and thereafter he had persistent symptoms exacerbated by various day to day activities and progressively deteriorating. ... FITNESS Based on today's findings he is fit to continue with police duties of a fairly sedentary nature still at this time. Eventually it is to be hoped that he will be able to get back to more active police work. It is not likely that the will be able to get back to jogging or playing active tennis or other sporting games. ... PROGNOSIS The prognosis in my opinion is unpredictable. He still has quite extensive pathology in his right knee. Management should be directed towards maintaining his quadriceps muscles with an active exercise programme. This would rely on his treating orthopaedic surgeon, Dr Thomson to indicate to him the importance of carrying out this exercise activity as well as to the Police Rehabilitation Department who are apparently supervising these activities. A continuation of the osteoarthritic changes in the medial knee compartment may result in early knee replacement. 68 Dr Ian Bryan, an orthopaedic surgeon, also examined the appellant on 21 November 1994. He prepared a report dated 3 January 1995. He reviewed the appellant's history and set out the results of his examination and conclusions. Some extracts of that report are set out below: Following the osteotomy his knee improved but it is still sore and still tends to swell and it still tends to click and catch. He has a tendency for the knee to give way but there is some catching on the medial side. The knee does not lock. It hurts to kneel and to squat and he cannot run. ... ON EXAMINATION : The patient was a big man. He weighed 14 stone 2 lbs. He had a slight limp. There was a minor effusion in the right knee. There was a slight valgus deformity of the knee which I believe was a correction made at the time of the osteotomy. The osteotomy scar is over the lateral aspect of the leg below the knee level. There was ½" wasting of the muscles of the right thigh and the muscles are weak. There is ½" wasting of the muscles of the calf. There was tenderness over the medial aspect of the right knee. he had a full extension with 10 loss of flexion. The knee joint was stable. Rotation did not produce any undue clicking or catching. The patella was normal. There was crepitus on movement of the knee. There was somewhat less crepitus on movement of the left knee. ... I believe that he is suitable and able to continue with the work that he is normally expected to do. He would have difficulty if engaged in heavier activities or if he had to engage in more strenuous activities required of a police officer that is on routine duty. 69 Medical evidence obtained after the appellant was medically discharged shows a substantial deterioration of his knee injuries. In cross-examination, in a passage earlier set out in these reasons, it was put to the appellant that given the passage of time he was "telescoping" the deteriorating condition of his knees after 1998 to an earlier point in time. The appellant did not agree with that proposition. 70 With regard to the appellant's tinnitus and hearing loss, the evidence is less straightforward. The conditions were not included in the application for medical discharge and there is no medical evidence to support the existence or diagnosis of either condition prior to the appellant's discharge, or, more relevantly the extent, if any, to which those conditions may have rendered the appellant incapable of "personally exercising the functions of a police officer referred to in s 14(1) of the Police Act 1990". 71 In the appellant's bundle of documents, tendered during the proceedings, may be found one medical report dealing with the appellant's "bilateral tinnitus and bilateral hearing impairment". The report records one examination of the appellant which took place on 21 April 2006, that is, several years after his medical discharge. 72 The report was written by the appellant's examining doctor, Dr S Tamhane. In the report, a diagnosis of tinnitus and hearing loss is confirmed. Significantly, however, the report does not attribute the conditions to any specific incident or occupational exposure while the appellant was a serving member of the police force. The relevant portion of Dr Tamhane's conclusions are extracted below: The pattern of Mr Ainsworth's hearing loss is consistent with noise induced hearing loss. The hearing loss and the tinnitus are a result of the exposure to loud noise. Both the hearing loss and tinnitus are permanent. Hearing aids will not help. ... With the amount of tinnitus he has at present and the distress that he shows from the tinnitus, I do not think Mr Ainsworth could be gainfully employed in any occupation. Even a desk job, which has very little stress, would be difficult to perform due to the constant tinnitus in the ears. 73 The appellant's oral evidence of when the condition manifested and then impacted on his ability to perform his duties is set out below: Q. Could you describe for her Honour's benefit what in fact you experience in terms of your ears? Q. When I was - I have really been thinking about it now and when I was at Nowra it started with the - we had 4 in the detectives office and when answering the phone with only another person in the detectives office I couldn't hear properly because there was this ringing. I didn't know what it was but I was too overwhelmed with work and what was doing to worry about it. But then I got promoted to detective sergeant and I barely made the audio test. But I scraped through, the lady told me, and then progressively it got louder and louder and it blocks up. I have trouble with my wife, she talks to me and I just can't understand what she is talking about, even now - it is worse now. but in a group, if someone is face on to me, a man, I can hear them. When your colleague was talking, I couldn't hear him properly but I could hear you. But in a group and especially if there was females present and they were talking to me, if there were background noises and that around I just can't hear. I take the wrong thing and I knew I was doing that in the job as well. I was giving the wrong information on occasion. I even asked a couple of close mates, inspectors, could they check that was actually said, because of the hearing. Q. To make sure we are acting under no misunderstanding, in terms of those difficulties you have just described, were they difficulties you were experiencing at the time that you were the patrol commander at Dapto? A. Yes. Q. Are you able to provide to her Honour a practical example or two as to when those difficulties caused you problems with your job? A. On the telephone, especially if you were out in the office where there were other staff or members or the public speaking, at meetings, whilst talking at Council meetings or liquor consultative patrol meetings, we used to have monthly. I used to conduct a lot of internal investigations because of my detectives experience and you have got to get these things right. And I had difficulty in understanding some things that were said to me. Again, I relied on my mates who knew I was having trouble to keep my notes - keep some notes for me or they would explain it to me if I had a query on any problem like that. But in a group, that was the hardest thing to hear if there was a noise around. 74 In submissions, the appellant acknowledged that with regard to his tinnitus, he was, "on thinner ground than either the right or the left knee". The respondent submitted that in the absence of evidence in support, the appellant's evidence of the existence and extent of the condition while a serving member of the police force amounts to no more than, "he might have misunderstood people ... but that does not amount to an incapacity". 75 In my view, the evidence is not sufficient for the Court to consider whether at the time the appellant was a serving member of the police force the conditions of hearing loss and tinnitus were such as to render him incapable of performing his duties, in the way prescribed under s 10B(1). 76 This leaves the injuries to his knees. It was not contended that the appellant's evidence of the existence and extent of those injuries was anything other than a truthful account. What was contended was that his evidence was inaccurate on the basis that he condensed or shortened ("telescoped") the intervening period between 1997 (prior to his discharge) and 2010 (when giving his evidence) to attribute the more severe condition of his knees in 2010 to their less severe condition, prevailing in 1997. The difficulty I have with the submission is that when the proposition (that the appellant "telescoped" his symptoms) was put to the appellant it was not accepted and there was no other evidence to support it. 77 The question remaining is whether the appellant's evidence and the medical evidence in support show, on the balance of probabilities, that his knee injuries (infirmities) were such as to render him incapable of personally exercising the relevant functions of a police officer referred to in s 14(1) of the Police Act, that is, are the claimed infirmities "causally connected to the incapability to perform the duties"? 78 I do not intend to embark on a detailed analysis of what functions of a police officer are intended to be covered under s 10B(1). Neither party specifically addressed this aspect of the section. In Stanley, Marks J made the following observations on the function of a police officer (at [45]): In having regard to the functions of a police officer, I take into account that whilst many police officers may habitually be engaged in activities of a sedentary or semi-sedentary nature, they may be and are called upon from time to time to undertake strenuous physical activity that would require them to run, scale obstacles, walk over uneven surfaces, ascend and descend steps and physically confront and deal with persons. Indeed, the appellant gave evidence that these types of activities were undertaken by him on a regular basis as part of his work as a detective, being the work that he was engaged in at the time that he resigned. 79 As the Explanatory Notes attempt to make clear, the most recent amendment to s 10B(1) requires a determination which is not based on actual rank or positions or functions. The fact that the appellant, who was a Patrol Commander at Dapto at the time of his discharge, may have had, largely a sedentary or semi-sedentary role, with the ability to delegate is not therefore solely relevant to the determination. 80 Rather, s 10B(1) would appear to embrace all of the functions of a police officer referred to in s 14(1) of the Police Act. According to the Explanatory Notes, the functions to which s 10B(1) is directed are those conferred or imposed on a constable by or under the law (including the common law) of the State. It is unnecessary to explore in detail what those functions might involve: see, for a detailed analysis of those functions, Campbell JA in State of NSW v Tyszyk [2008] NSWCA 107 at [55] to [133]. At minimum, they would require, at times, a police officer to run, jump, scale obstacles and even physically confront an offender in order to restrain him or her. These activities all require, necessarily, a certain strength and flexibility of the lower limbs. The appellant, only weeks before he went on sick leave in January 1997, was involved in these types of activities at Parramatta on 11 November 2006. According to the respondent, the strength and agility with which the appellant was able to respond tended to dispel any notion that his knee injuries incapacitated him for the duties of office. I cannot agree. In my view, what the incident displayed was that the appellant, despite his knee injuries, was able to respond to an emergency situation in order to assist fellow officers. In the appellant's own words, he was motivated by "pure adrenaline". Nevertheless, the effect of the incident, according to him, was to exacerbate an already serious condition. 81 The medical evidence suggests ongoing problems in particular to the appellant's right knee (Dr Thomson, for example). Dr Scarf concluded in May 1994 that the appellant could perform police duties "of a fairly sedentary nature". Dr Scarf noted extensive pathology to the right knee. In his opinion, it was unlikely that the appellant would be able to jog, play active tennis or other sporting games. In January 1995, Dr Bryan concluded that the appellant would have difficulty "with the work he is normally expected to do, or if he had to engage in more strenuous activities of a police officer that is on routine duty". 82 This evidence, in combination with the appellant's evidence, is strongly supportive of a finding, consistent with the requirements of s 10B(1), that the appellant, at and prior to his medical discharge, was incapable because of his injured knees, of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act. I therefore determine, and certify under s 10B(1), that the appellant is incapable from the specified infirmity, namely, the injury to his right knee and the injury to his left knee, of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act. 83 This finding results in the appeal being allowed. I note, however, that the Certificate granted on 26 November 1997 did not, in terms, conform precisely to the words of s 10B(1), as it was then in force. Given my findings that the Certificate should be amended and that the most recent version of s 10B(1) should apply, there may be some uncertainty as to the form that the amendment should take. On my reading of the Certificate of 26 November 1997, it may reflect s 10B(1) in its most recent form where it certifies that the appellant is "incapable ... of discharging the duties of his office and any other office in the police force" (my emphasis). So there is no doubt about this, however, I intend to give the parties liberty apply in order to place before the Court, if it be thought necessary, any submissions that they may wish to make, on the precise wording of the amended Certificate which properly reflects and conforms to the current form of s 10B(1). Orders

84 Accordingly, the Court makes the following orders in Matter No. IRC 461 of 2009:

(2) The respondent's determination of 9 October 2008 is set aside.

(3) The respondent's determination of 20 October 2009 is set aside.

(4) The Certificate issued by the respondent in respect of the appellant on 26 November 2007 is amended from that date, in accordance with the determination made by this Court, by the addition after the words "specified infirmity of", of the words, "injury to the right knee and injury to the left knee".

(5) The respondent is to pay the appellant's reasonable costs as agreed or in the absence of agreement as assessed.

(6) The parties have liberty to apply at any reasonable time within 28 days of the date of this judgment in order to make submissions with regard to Order 4.

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