James Rossetti v SAS Trustee Corporation

Ankle Injury - 10 December 1993

1. On 10 December 1993, the applicant sustained an injury to his right ankle during a violent struggle with an offender at the scene of a domestic violence incident. As a consequence of this injury the applicant was transferred to the John Hunter hospital and received care from Dr Allison Miller. (T35.1-6) Dr Miller provided the applicant with a work cover certificate stating that he was suffering from a soft tissue injury of the right ankle. (Ex 1, p 6).
2. On 10 December 1993, following the injury, the applicant submitted a claim for hurt on duty benefits to the New South Wales Police Department. (Ex 1, p 2-5).
3. From 11 December 1993 until 2 February 1994, the applicant was absent from duties for a period of 53 days. The reason cited for his absence was his ankle injury. (Ex 1, p 19). The applicant provided WorkCover Authority medical certificates from Dr D'Costa in relation to his right ankle injury dated 11 December 1993, 17 December 1993, 7 January 1994, 21 January 1994, 28 January 1994 and 8 April 1994. (Ex 1, p 6-12). On 6 March 1994, Dr D'Costa provided the applicant with a medical certificate. This certified that the applicant would be unable to attend work from 6 March 1994 to 2 April 1994 as he was suffering from stress. (Ex 1, p 13). This last portion of leave was granted because the applicant's daughter was seriously ill in hospital. It should be noted that this appeal does not relate to the applicant's stress related injury.
4. On 5 January 1994, 17 January 1994 and 16 February 1994, the assistant manager of the workers compensation section of the New South Wales Police Force wrote to the applicant approving his absence as a result of the injury sustained pursuant to cl 98(2) of the Police Act Regulation 2015 (NSW). (Ex 1, p 14-16).
5. Dr D'Costa's original clinical notes handwritten in abbreviations on cards are largely illegible. (Ex 2). However, the clinical notes indicate that the applicant attended Dr D'Costa on 11 December 1993, 17 December 1993, 7 January 1994, 15 January 1994, 21 January 1994, 25 January 1994, 28 January 1994, 11 February 1994, 8 April 1994 and 29 April 1994. Due to the illegibility of the notes, it is unclear as to the reasons the applicant attended appointments with Dr D'Costa. However, they align with the dates Dr D'Costa provided medical certificates in relation to the applicant's right ankle.
6. It was Dr D'Costa who provided the applicant the certificate issued on 8 April 1994 certifying the applicant as fit for duty. Dr D'Costa resides interstate. An affidavit of Stuart Gray was filed in court on 22 March 2017 set out the efforts made to contact Dr D'Costa. (T 135.10-13, 136.16-17).
7. Stuart Gray deposed (Aff 20/03/2017) that: "4. On 11 July 2016 I telephoned Dr [D' Costa] and said to him words to the effect: "I am a solicitor from New South Wales and I act on behalf of Mr James Rossetti. You used to treat Mr Rossetti when you were practicing in Newcastle. Mr Rossetti suffered an ankle injury and I was hoping you would be willing to swear an affidavit regarding your treatment at the time?" He then said to me words to the effect: "I'm just not comfortable giving an affidavit. I'm semi retired and don't need this Court stuff. I remember James, I remember his family - his mother and father. His father was a short balding man." I said to him words to the effect: "You recall he suffered an ankle injury?" He then said words to me to the effect: "Yes, vaguely." I said to him words to the effect: "Do you recall issuing certificates in relation to that injury?" He then said words to the effect: "Not really."" I accept that Dr D'Costa had only a vague memory of the applicant's injury to his right ankle and the issuing of medical certificates to him.
8. The applicant deposed (Ex D, Aff 18/05/2015) that: "15. I was certified as totally unfit for work for approximately 2 months from the date of the injury. I was on crutches for approximately 6 weeks. 16. With the physiotherapy treatment, my ankle improved to the point where I got off the crutches and was placed on restrictive duties. I finished physiotherapy and was advised to do stretching exercises. I was not referred for specialist opinion. 17. The restricted duties at work involved doing paper work in the office. My right ankle was still painfully sore and would swell. I was limping all the time. 18. Although I was off crutches I was still in pain which got progressively worse during the day. I also found that by the end of the day my right ankle became very swollen. At the end of the day I would need to go home and put ice on my ankle. 19. By April 1994 I was still on restricted duties at Hamilton Police Station. I was still limping a bit - my ankle was constantly sore and would get worse if I had to stand for any length of time."
9. Overall, the applicant's evidence is that he returned to work on restricted duties. (T 37. 45-47). During cross examination, the applicant stated he did restricted eight hour shifts. He confirmed that from February until April 1994 he had a supportive supervisor, Gary Roach and even when he was on restricted duties was allowed to attend hospital to visit his daughter. (T 38).
10. The applicant's direct supervisor Gary Roach (known as Papa Roach) died on 22 September 2003. This was prior to the plaintiff making an application for a superannuation pension. At the time the applicant was on restricted duties and so too was Mr Roach.
11. The applicant's wife, Belinda Maree Rossetti swore an affidavit and was cross examined. Her evidence is that the applicant was on crutches for about six to eight weeks and had a significant amount of time absent from work. She recalls that the applicant was in a lot of pain and that his ankle would often swell and they would need to ice it. (Ex C, [6]). Her evidence did not change during cross examination. (T 103.24-50).
12. Mr Neville Reid, a detective who was stationed at Hamilton Police in 1993 provided an affidavit and was cross examined. Mr Reid stated that he most likely had not seen the applicant since at least 1999 or prior to that. (T 113.8-12). His evidence is that the applicant performed restricted duties after his ankle injury. (Ex E, [12]).
13. In cross examination Mr Reid gave evidence that on more than one occasion he remembered that the applicant was doing restricted duties. His evidence is (T 121.19-27): "Q. It's entirely feasible isn't it that Mr Rossetti did perform general policing duties out on the truck that you just didn't observe? A. You're asking me is it feasible? … A. As I said I didn't look at it day to day… but I can tell you in regularity in that period he was behind the inquiry counter in the station and I clearly remember that, because I was and he used to be a fairly active police officer, young and he was fit and he was getting involved in things and you know, you get some that are a bit reluctant at times to get involved in things that, violent incidents and then some that you can rely on at other times to get in and I would suggest that he was a very good police officer in that regard and so it's noticeable that he was in the station with an injury and it's something you just notice and I always found him very accommodating to talk to and friendly, so, you know that sort of sticks in my mind as well."
14. I accept that Mr Reid's evidence corroborates the applicant's evidence that he was performing restricted duties after his right ankle injury, but he cannot specifically link the restricted duties to the date of resignation, 6 May 1994. (T 115.35-38).
15. Between 8 April 1994 and 3 September 2001, the clinical notes record that the applicant did not consult Dr D'Costa, his general practitioner in relation to his right ankle. During cross examination, the applicant was asked how often he would go off sick or seek medical treatment and he replied that he would only seek medical treatment and go off work for a significant incident. (T 43.5-17).

The applicant's resignation

1. The applicant agreed that he stated in his notice of resignation that it was not due to his ankle injury but due to personal circumstances. He deposed (Ex D, Aff 18/05/2015) that: "21. I remember some time in April 1994 an officer came out from the Newcastle Police Station. I understood that he had something to do with hurt on duty matters. I was one of about 4 Police officers at the Hamilton Command who were on restricted duties at the time. We met him when he attended the Police Station and he conducted interviews with us separately. When he spoke to me I noticed that he had my medical files and knew all the details of my injury. Apparently his task was to ascertain each of our circumstances, whether we could be rehabilitated back to work etc. 22. I remember during the conversation he said words to me like, "if you can't return to full time duties, you'll need to go off work as we have no more restricted duties for you." At the time I knew nothing whatsoever about my rights whilst hurt on duty, nor did I know anything whatsoever about the medical discharge process. All I knew is that I felt uncomfortable and I just wanted to get out. I recollect I wasn't thinking clearly that day, but I came to the conclusion from the conversation I had with him, that the only way that I could leave the Police Force was resigning and to do that I had to first return to full duties. 23. A few days later I arranged to see my GP Dr [D'Costa], again. I said to him, "I want to get out of the Police Force and to do that I have to first return to full duties." He said to me, "Are you right to get back?" I said, "Yes." He then proceeded to issue me with a certificate certifying me as fit to return to full duties. 24. I went back to work and returned to full duties and approximately 2 to 3 weeks later on 6 May 1994, I resigned from the NSW Police Force."
2. As it turns out, the advice the applicant says that he was given was incorrect. At the time, the applicant resigned because of his daughter's ill health and his psychological and psychiatric state. He was later diagnosed with PTSD. (Ex 1, p 31).
3. In cross examination the applicant gave the following evidence (T 46.48-50, 47.23-25): "Q: This certificate that you obtained on the 8th clears you back from the 5th. A: Yes. … Q: But this certificate says the 5th? A: the certificate was backdated, because I had to give a certain period off my resignation notice."
4. The applicant gave confusing evidence during cross examination regarding wearing his appointments.
5. In cross examination the applicant stated (T 93-95) : "Q: Do you agree that when you returned to work in February 1994, you performed restricted station duties? A:Yes. … Q: Do you agree that, whilst performing restricted station based duties of that nature, you were not required to wear your appointments? A: That's correct. Q: In fact, you were directed not to wear your appointments, weren't you? A: That's correct. Q: The reason being is that the police service didn't want an injured police officer charging out, carrying a gun or other appointments, in circumstances where they might not be able to effectively use them? A: I only knew of the directive that HOD police don't wear appointments. … Q: Do you agree that when you returned to general duties in April 1994, that you recommenced wearing your appointments? A: I don't recall because my final duties were in the station. … Q: You certainly had the option to wear them, didn't you? A: Yes. Q: There was nothing stopping you from wearing them? A: No Q: You, in fact had cleared that hurdle by presenting the certificate for normal duties? A: Yes Q: Do you agree that, by doing so, you were asserting to the command at Hamilton, and to the broader police command, that you were fit, well and capable of rendering whatever assistance was required? A: Yes. Q: And as part of being a constable of police at that stage, that meant wearing your appointments, didn't it? A: Yes. … Q: It is your assertion, is it sir, that you performed restricted duties, despite being cleared for work, is that right? A: My role wasn't restricted duties, I was placed in the station and never one of the car personnel that was made to respond."
6. The applicant's oral evidence is that while he was hurt on duty he was not required to wear the appointments. However, once he was certified as fit for duty he was able to wear them but as he was undertaking station based duties he does not recall whether or not he did so.
7. The oral evidence of Neville Reid shed light upon this confusion regarding the meaning of appointments when he explained (T 118.11-24): "Q: On general duties, as they're called, when you're doing general duties, you were required to wear your full uniform, weren't you? A: That's correct. Q: And you were required to wear your appointments, weren't you? A: That's right. Q: Even if you were doing administrative station type duties, filling out warrants, doing paperwork, when you were on general duties in full uniform, you had to wear your appointments, didn't you? A: That's not necessarily correct. I don't agree with that. I know it is today, under the present climate, but in that period it certainly wasn't a prerequisite. Some wore and some didn't, that was their decision."
8. On 8 April 1994, the applicant submitted his resignation/notice of retirement from the New South Wales Police and nominated 6 May 1994 as his last day of employment. The reason provided for his resignation was 'personal reasons', not his ankle injury. The reason the applicant gave for his resignation was: "…our baby daughter, XXXX, has been extremely ill for past 7 months. She is at present in the Intensive Care Unit John Hunter Hospital where she has been for the past 5 weeks. She is very ill and at the moment and in the future will require great care. With this situation at the moment makes it virtually impossible to continue employment in the NSW Police Service as the shift work and the long term planning makes it very difficult with the care required by my baby."
9. On 28 April 1994, the applicant made an application for 'payment of extended leave (long service leave) … due to resignation'. (Ex 1, p 18).
10. Although the applicant did not resign due to his right ankle, he alleges that he had not yet recovered from that injury at the time of resignation. The applicant deposed (Ex D, Aff 18/05/2015): "25. At the time that I resigned and left the NSW Police Force, I had not recovered from my ankle injury. I could walk alright but by the end of the day, my ankle would become very sore and I would limp. It would become very painful when I was on my feet for a long period of time and by the end of the day, the ankle [would] become swollen. At the end of every day when I got home I would have to take the weight off my foot and pack my ankle with ice. I also found it necessary to strap my ankle while I was at work. I found that I could not run with my ankle. As soon as I tried to run, it would seize up and lock. I just could not walk once that happened. I would have to stop, grab my ankle and stretch it before I could walk again. When I would stretch it I would hear a click and that would release my ankle to move again, but then it would be followed up by swelling."
11. So far as the applicant and his wife and Mr Neville Reid's evidence is concerned, Counsel for the respondent referred to Coote v Kelly; Northam v Kelly [2016] NSWSC 1447, where it was stated: "[76] Hallen J recently set out the relevant principles in Evans and Braddock [2015] NSWSC 249 at [70]-[77]. After referring to Watson v Foxman, his Honour said: … [76] The circumstances of this case, make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben's of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122 -123 ( in a passage cited with approval by the High Court when it upheld his Honour's decision: Effem foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599, at [15]) appropriate to remember: "[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on …"
12. The evidence between the applicant, his wife and Neville Reid accords with the medical records so I accept their evidence. Employment after the police force
13. After the applicant had left the police force, he and his wife did not have an income. The applicant then went to work for his uncle's concreting business which he later took over. In 2012, the applicant closed the concreting business down. (Ex D).
14. The applicant's wife, Mrs Belinda Rossetti deposed (Ex C, Aff 28/07/2015): "[9] After Jim resigned from the NSW Police Force we didn't have any income. We got some money for accrued annual leave and long service leave but I was not working at the time as our children were still little. Jim needed a job. One day he said to me, "Nick (his uncle) has offered a job working for him concreting". I said, "How are you going to do that?". He said, "If I work for Nick the labourers will do the hard work". … [11] Whilst Jim worked for Nick at his concreting business he would from time to time come home limping. From time to time his ankle would be swollen and required icing. I saw that he did from time to time take Nurofen Plus."
15. The applicant's uncle, Nick Tranchini provided a statement dated 28 July 2015 (Ex B). He was not required for cross examination. Mr Tranchini deposed (Ex B Aff 28/07/2015 at [4]): "[4] After Jim got out of the Police Force he didn't have a job to go to. I understand that his wife wasn't working. At the time I had a concreting business. I employed about 4 to 5 people. We did mainly footings and slabs - we did a lot of slabs. We also did footpaths and driveways. I asked Jim whether he wanted to come and work for me. I knew he was still having trouble with his ankle at the time but I had labourers to do the hard work. I offered him a job and he accepted a job with me on a full time basis..."
16. Mr Tranchini says that he did not ask the applicant to do the heavier work and that the applicant performed the lighter work. He observed that the applicant would limp with his ankle and that he had trouble with uneven surfaces.
17. I accept that the applicant undertook lighter concreting work due to the necessity of providing an income for his family, not because the injury to his right ankle did not cause him difficulty or pain. I accept the evidence of the applicant, his wife and uncle that his right ankle would swell, he would limp and at the end of the day he had to ice his ankle and take nurofen.

Issues for determination on appeal

1. The issues for determination by the Court on appeal are narrow in scope. They are confined to whether the applicant was incapable from, an infirmity of body or mind, of discharging the duties of his office at the time of his resignation on 6 May 1994.
2. I have already referred to Dr D'Costa's clinical notes and medical certificates earlier in this judgment. In order to resolve the issues for determination, the medical evidence must be examined for the purpose of considering whether the right ankle injury hindered the applicant's ability to carry out the role of a general duties policeman as at 6 May 1994.
3. On 14 December 1993, the applicant commenced treatment with physiotherapist, Mr Finlay-Jones. (Ex A, p 90). The applicant was off work for 53 days from 10 December 1993 until 2 February 1994 due to his right ankle injury. This is a considerable period of time.
4. On 5 April 1997, the applicant attended Mr Finlay-Jones. His clinical notes (Ex F) record a later injury to his right ankle: "5/4 jumped over fence. Landed on rock in long grass. Forced inversion injury of ankle."
5. Mr Finlay-Jones deposed that after reviewing his clinical notes, it was his opinion that when he treated the applicant in 1997 it was for an exacerbation or flare up of the applicant's right ankle injury that he had sustained in 1993. (Ex F, Aff 25/07/2016 [23]). However during cross examination (by telephone), Mr Finlay-Jones recanted this opinion by admitting that this was conjecture as he could not remember due to the time that had lapsed. (T 134.46-50).
6. Mr Finlay-Jones deposed that the applicant had sustained a serious ankle injury and although the applicant's condition did improve, it did not resolve completely with physiotherapy treatment as at 6 May 1994. (Ex F, Aff 27/07/2016 [9] and [12]).
7. Mr Finlay-Jones's evidence is that if the applicant's duties "involved him running, walking for long distances and placing significant weight on his right ankle then he would have been unable to do such tasks in 1994 as at the last day he worked for the New South Wales Police Force." (Ex F, Aff 19/08/2016 [5]). I accept Mr Finlay-Jones's evidence as being truthful as it is supported by his contemporaneous clinical notes. Further, he freely admitted that his opinion that the injury of 1997 was an exacerbation of the applicant's earlier 1993 injury to his right ankle was wrong.

Medical consultations that took place 16 years after the applicant's resignation

1. On 8 October 2010, the applicant attended Professor Ghabrial, an orthopaedic and spinal surgeon. The applicant reported that he had a continuing ache in his right ankle with pain. (Ex A, p 108). Professor Ghabrial opined that the applicant was not fit for activities involving any running, climbing ladders, going up and down stairs excessively, walking on uneven grounds, standing for lengthy periods or walking long distances. (Ex A, p 109).
2. On 21 March 2011, the applicant consulted Dr David Maxwell an orthopaedic and spinal surgeon at the behest of the Pillar Committee. Dr Maxwell's opinion differs from the other medico legal opinions provided. Dr Maxwell was of the view that a complication from a sprained ankle could be recurrent ankle inversions but the applicant did not have this complication. Dr Maxwell opined that on examination, the applicant's right ankle was essentially normal. (Ex 1, pp 56-57).
3. On 25 July 2011, the applicant consulted Dr John Sage an orthopaedic surgeon. Dr Sage noted the applicant had persisting anterolateral discomfort that stops him from running and that he has episodes where his ankle locks up. (Ex A, p 118). Dr Sage recorded that after the incident in 1993, the applicant required crutches for six weeks. Dr Sage further noted that while a certificate was given for the applicant to return to full duties, this was merely for the purpose of expediting his discharge from the Police Force. (Ex A, p 119).Dr Sage opined that the X-ray of 2010 showed ossification between the tibia and fibula indicating that the 1993 injury involved the interosseous ligament. Dr Sage is of the view that this fits in with the symptoms of the ankle injury being more prolonged and thus a more severe injury. (Ex A, p 121). Dr Sage concluded that the applicant's ankle injury in December 1993 was a significant sprain and that this injury would have affected his capacity to work as an operational police officer when he resigned from the police force in May 1994. (Ex A, p 123).
4. Drs Sage and Maxwell differ in their opinion as to whether or not the applicant suffered from ankle locking as a result of the right ankle injury in December 1993. Dr Sage opined that the locking would have been from the highly significant sprain of 10 December 1993. (Ex A, p 123). Dr Maxwell regarded the locking as merely stiffness. (Ex A, p 84). I prefer the analysis provided by Dr Sage.
5. On 28 February 2012, the applicant consulted Dr Chris Harrington, an orthopaedic surgeon. Dr Harrington reported that the applicant presented with a substantial disability of his right subtalar joint which would be permanent. (Ex A, p 130).
6. Dr Harrington was of the opinion that (Ex A, pp 132-133): "In my opinion it would've been extremely difficult for Mr Rossetti to continue functioning as a Police Officer with his problematic ankle. Although he is currently working on building sites in steel cap boots he isn't inclined to quickly get in and out of cars and chase villains with that problematic subtalar joint. He would not have been able to trust the joint in emergency situations and if he continued with just the ankle problem (without PTSD) there would've been permanently modified duties put in place due to the lack of flexibility in his ankle and subtalar joint. If these duties weren't available then it would've been impossible for Mr Rossetti to continue as a Police Officer."
7. On 10 December 2015, the applicant consulted Dr Anthony Lowy an occupational physician. Dr Lowy diagnosed the applicant as having a permanent internal injury of the structure within his right ankle with ongoing pain and disability. Dr Lowy opined that despite the passage of time, the applicant had an uninterrupted history of pain and disability with his right ankle. Dr Lowy is of the view that the applicant was and remains incapacitated for duties as a police officer with the New South Wales Police Force. (Ex A, p 176).
8. On 31 October 2016, the applicant consulted Dr John Findeisen a rheumatologist. Dr Findeisen reported that it was extremely difficult for him to provide an accurate diagnosis for the applicant's right ankle as at the time of his resignation as his assessment of the applicant was an historical assessment based on the history provided by the applicant. However, Dr Findeisen opined that there was little doubt that the ligamentous injury was severe given the applicant required six weeks on crutches and was limping for 12 months after the injury. (Ex A, pp 182- 183).
9. While I take into account the long effluxion of time since the applicant's right ankle injury, I prefer the opinions of Dr Sage, Professor Ghabrial and Dr Harrington to that of Dr Maxwell. These opinions express the same views as to the plaintiff's disability and accord with the lay evidence of the applicant, his wife and uncle regarding the applicant's problems with his right ankle.

The Statutory framework

1. Section 88 of the Superannuation Administration Act 1996 (NSW) is vested with the jurisdiction to determine the applicant's dispute. It reads: "88 Appeals (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 Supreme Court. (2) The appeal must be made within 6 months after the appellant is notified of the determination or within such further period as the Supreme Court allows. (3) In dealing with the appeal, the Supreme Court 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 Supreme Court 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 Supreme Court 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 Supreme Court on the appeal is to be given effect to as if it were a determination of STC."
2. It is common ground that the appeal was lodged within the six month time period: s 88(2).
3. Section 10 of the Act relevantly reads: "10(1) Superannuation allowance where member hurt on duty … "disabled member of the police force" means: … (b) a former member of the police force who resigned or retired and who, according to a certificate given pursuant to section 10B(2) at any time after the member's resignation or retirement, was incapable, from an 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. That infirmity being determined, pursuant to section 10B(3) or on appeal, to have been caused by the member being hurt on duty or the former member having been hurt on duty when he was a member of the police force, as the case may be. … (1A) Subject to this section the annual superannuation allowance for a disabled member of the police force is: (a) an amount that is equal of 72.75 per cent of the member's attributed salary of office, …"
4. Section 10B(2) relevantly reads: "10B Medical examination of disabled member and determination of whether hurt on duty (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 …"

Applicant's superannuation application

1. On 25 May 2010, the applicant applied to the respondent for an annual superannuation allowance pursuant to s 10B(2) of the Act. (Ex A, p 37).
2. On 23 June 2010, the medical discharge coordinator of the Hurt on Duty Unit determined that the applicant had satisfied the legislative prerequisites pursuant to s 10B(2) of the Act as it applied to the applicant at the date of his resignation. (Ex A, p 54).
3. On 17 February 2011, the respondent determined that the applicant's application could not be given further regard until an independent medical examination was undertaken. (Ex A, p 53).
4. On 26 July 2012, Police Superannuation Advisory Committee (PSAC) as a delegate of the respondent, determined that the applicant was capable of discharging his duties of office due to the infirmity of "injury to right ankle" in accordance with s 10B(2) of the Act. On 27 July 2012, the respondent notified the applicant in accordance with s 23E(1) of the Act. (Ex A, p 60).
5. On 14 August 2012, the applicant notified the respondent that he disputed the determination of PSAC and served a notice of the dispute on the respondent pursuant to s 23E of the Act. (Ex A, p 61).
6. On 7 August 2014, the respondent's dispute committee determined the applicant's dispute in accordance with s 67 of the Superannuation Administration Act 1996 (NSW). On 11 August 2014, the respondent wrote to the applicant notifying him that the dispute had been determined. The applicant received this notification on 18 August 2014. (Ex A, p 73).
7. On 10 February 2015, in accordance with s 88 of the Superannuation Administration Act 1996 (NSW) the applicant filed proceedings in the Industrial Relations Court.

Submissions to the Police Superannuation Advisory Committee by the Pillar Committee (Ex A, p 81)

1. On 12 October 2011, the Pillar committee received a complete copy of the applicant's medical file from New South Wales Police. The file included the WorkCover certificate issued by Dr D'Costa clearing the applicant to return to full operational duties from 5 April 1994, one month before he resigned. (Ex A, p 96).
2. The Pillar committee stated that the available evidence before it was that the applicant resigned from the Police Force because he no longer wanted to be a policeman and not because of his claimed right ankle infirmity. It stated that the application had continued to work in a physically demanding role as a concreter for the past 17 years, a job requiring him to be on his feet all day with no reported limitation related to his ankle. It contended that even if the applicant does experience some slight discomfort presently, at the time of his resignation there was no contemporaneous evidence of discomfort.
3. On 15 June 2010, the applicant's solicitors were provided with a copy of Dr Maxwell's report for their comment. By letter dated 8 July 2011, the applicant's solicitors advised that further medical evidence would be forthcoming to support the applicant's claim. (Ex A, p 84). On 26 August 2011, the Pillar committee received a report from orthopaedic surgeon, Dr Sage. As mentioned earlier in this judgment, Dr Sage considered the applicant was not fit to perform general police duties as he could not run effectively. Dr Maxwell maintained his opinion that the applicant was fit for operational duties at the time of his resignation and stated that the emphasis Dr Sage placed on the locking of the applicant's right ankle was just stiffness. (Ex A, p 84).
4. After Dr Maxwell's review, the Pillar Committee determined that the applicant should obtain a further specialist opinion from Dr Harrington. Dr Harrington also opined that the applicant's right ankle was problematic. The Pillar committee's recommendation states that the applicant resigned so he could start a pre-arranged job as a concreter. (Ex A, p 85). This is contrary to the evidence of the applicant, his wife and uncle which all state that only after the applicant resigned did his uncle offer him a job. It should be noted that neither the applicant, his wife's or uncle's evidence was before the Pillar Committee.
5. The Pillar committee recommended that having regard to all the known circumstances of the case, there was an insufficient basis for the committee to be satisfied that the applicant was incapable of discharging his duties of office when he resigned. (Ex A, p 85).

Consideration

1. The question this Court must ask itself is whether the applicant, as a former member of the Police Force was incapable of discharging the full duties as a general duties police officer as at 6 May 1994.
2. Counsel for the applicant referred to Commissioner of Police v Industrial Relations Commission of New South Wales [2012] NSWCA 439 (Commissioner of Police). In Commissioner of Police, Beazley P identified the functions and duties of a police officer as distinct from the position itself. Her Honour stated at [94]: "…there is a differentiation in the Police Act between the position of a police officer and the functions and duties a police officer is required to carry out."
3. The applicant submitted that the Court, in determining the relevant duties the applicant was required to discharge as at 6 May 1994, should have regard to firstly, the specific duties the applicant was compelled to undertake; and secondly, the duties consequential to the functions of his position as defined by the Act.
4. In Locker v SAS Trustee Corporation [2013] NSWIRComm 23 (Locker), Staff J at [77] stated: "77 The principles to be derived from the Full Bench decisions in Boland and Morley are that regard must be given to the actual duties required to be performed by the appellant in his rank and in his office as a police prosecutor and whether any of those duties realistically involved tasks beyond his capability, and if so, whether those tasks could be discharged through delegation."
5. The applicant also submitted that the scope of what a general duties police officer entails needs to be considered. (T149.4-10). I agree that a general duties police officer such as the applicant undertakes tasks that may occur in an uncontrolled environment and may require speed, dexterity or the application of violence of a police officer.
6. Senior counsel for the applicant submitted that the actual duties referred to in Locker v SAS Trustee Corp are the same as those performed by the applicant as at 4 May 1996. The applicant held the rank of Constable as at the date of his resignation. The applicant submitted that his duties were those of frontline policing having been transferred to Hamilton Police station in 1992 where he performed general duties and as such the applicant was at the behest or direction of his superior officers and was required and indeed compelled to assist senior officers in physical policing: see Morley v SAS Trustee Corporation [2007] NSWIRComm 90 (Morley) at [29]. As a general duties constable the applicant was therefore required to perform physical duties on a regular, if not constant, basis.
7. The applicant distinguished Locker on the basis that in this case the applicant did take sick leave that was subsequently accepted as hurt on duty leave, as a result of his injuries to his right ankle and consequential disabilities. The applicant submitted that the facts in these proceedings differ from Morley and Locker based on the applicant's rank and the fact that he was not on restricted duties at the time of resignation. While the applicant was not on restricted duties immediately prior to his resignation, his evidence which I accept is that his duties were station based. (T 37.41- 43).
8. Staff J in Morley noted that the situation may well have been different if the duties of office were those of a general duties police officer. Counsel for the respondent referred to SAS Trustee Corporation v Daykin [2002] NSWIRComm 124, where Wright J President, Walton J Vice President and Peterson J, considered whether a police officer who had suffered a "short term incapacity" could seek access to superannuation. The Court stated at [24] and [27]: "24 We consider that an approach to the PRS Act which attributed to its purposes such short term remedies would be to misapply the statute. In Adams v State Authorities Superannuation Board, Cullen J described infirmity, the basal aspect of the statute whether it be a long or short term condition claimed to justify a certificate 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." This, we think, correctly portrays the primary intention of the PRS Act. While in theory an applicant may be free to bring a claim under this Act in respect of an obviously short term condition which might prevent the member working, the need to establish an infirmity with the longer temporal connotation means that such an application would be unlikely to satisfy the Act's requirements. … 27 There is, as we appreciate the matter, no room in this context for the operation of any partial incapacity approach. The statutory regime requires that the applicant be found either incapable or not incapable of performing the duties for, in effect, the foreseeable future."
9. The respondent submitted that it would be dangerous to rely upon the opinions of Dr Lowey, Dr Harrington, Dr Findeisen, Dr Sage and Dr Maxwell as at the very earliest the applicant was seen in 2010. (T 158.46-50). Counsel for the respondent says that it would be incorrect to assume that because the applicant was incapable in 2010, he was incapable in 1994 and also there is limited contemporaneous evidence to deduce the state of the applicant's right ankle during 1994. If I accept this submission, Professor Ghabrial's views are similarly tainted by the effluxion of time.
10. More importantly, when the applicant consulted Mr Finlay-Jones at the end of 1993 and into early 1994, he was of the opinion that while the applicant's condition improved it did not resolve completely and at the conclusion of his treatment he walked with a slight limp, could not run or place any significant weight upon his right ankle. (Ex F). The contemporaneous evidence accords with the medical evidence of Professor Ghabrial and Drs Sage and Harrington. Also, as I stated previously, I prefer the medical evidence of Professor Ghabrial and Drs Sage and Harrington over that of Dr Maxwell. These doctors all consider the injury to the applicant's right ankle as a long term problem. This view also accords with the evidence of the applicant, his wife and the applicant's uncle. In my view the applicant has established an infirmity of the body via injury to his right ankle and was incapable of discharging his duties of a general duties police officer as at 6 May 1994.

Conclusion

1. I am satisfied on the balance of probabilities that the applicant who resigned on 6 May 1994 was incapable from an injury to his right ankle, of discharging the full duties of a general duties constable as at the date of his resignation.
2. I make an order that the determination of the respondent dated 11 August 2014 is set aside.
3. I make an order that the applicant was incapable, from an infirmity of body of discharging the full duties of a general duties constable in the Police Force at the time of his resignation on 6 May 1994.
4. Costs are discretionary. Normally costs follow the event. The respondent is to pay the applicant's costs on an ordinary basis.

The Court orders that: 1. The determination of the respondent dated 11 August 2014 is set aside.

The Court certifies that: 1. In accordance with s 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW) the applicant James Rossetti was incapable of discharging the duties of his office as a general duties police officer as at the date of his resignation on 6 May 1994 due to the infirmity of his right ankle injury.

The Court orders that: 1. The respondent is to pay the applicant's costs on an ordinary basis.

Amendments 22 June 2017 - Amendment to Order (2) on cover sheet and last page of judgment DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 June 2017