Was the appellant incapable from a specified infirmity of body or mind as provided for in s 10B(2) on 17 October 1998?
75The test to be applied in order to determine the appellant's application is that the incapability is to be assessed with reference to the appellant's actual duties of office as distinct from the general duties of a constable. In Boland, the restricted duties designated to the applicant to cater for his neck injury was found by the Full Bench to be the "relevant" duties of office. For the purposes of the statutory test, the Full Bench rejected the proposition that "duties of office" encompassed a broader view of the officer's general duties.
76In Morley v SAS Trustee Corporation [2007] NSWIRComm 90; (2007) 162 IR 177, the Full Bench construed the duties of office even where they included the functions referred to in s 14(1) of the Police Act as being able to be performed through delegation. Mr Morley was a superintendent who was the Local Area Commander of the Barrier Region in far western New South Wales. He was medically discharged with a psychological infirmity that had been certified on 31 January 2002. His application to have orthopaedic infirmities relating to his back and knees added to his certification failed at first instance and on appeal because Mr Morley's rank and office meant that any physical aspect of the duties of a constable which was beyond him could still be performed by delegating the particular task to others. The Full Bench at [35] - [36] stated:
[35] Counsel for the appellant contended that there would not be duplication as it is not correct to assume that the duties of a constable cover the field of any other possible duties and it is possible that a person could discharge the duties of a constable but not those of a higher rank. Counsel for the appellant contended that the reason for looking at the actual duties as well as the duties of a constable was reflective of the overriding requirement for all members of the police service, no matter what rank they are, to undertake and be responsible for maintaining the peace.
[36] This contention is answered by our approach to s10B(2BA), namely that regard is had to the duties of the office then held by the particular applicant (in this case, the office of superintendent) and the duties of a constable. In having regard to the duties of a constable, it is necessary to have regard to how those duties are performed by reference to the particular rank or position held by the applicant. Accordingly, as already found, it was appropriate for Staff J to find that, in the case of the appellant, he was capable of performing the duties of a constable by delegating certain tasks to more junior officers. Further, certain duties are simply not required to be performed by a person holding a particular rank or position. In this way, the duties of a superintendent and a constable were both considered, contrary to the appellant's submissions. This is evident from his Honour's conclusion (at para 108):
In my view, because of the appellant's position, he was not required to use physical exertion to discharge "the functions conferred or imposed on a constable" as prescribed by s14 of the Police Act.
77The 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.
78The appellant agreed that the fundamental duties of a police prosecutor were to prepare matters for hearing and appear in court.
79It follows that it is therefore necessary in order to answer the question whether the appellant was incapable from a specified infirmity of body or mind as provided for in s 10B(2) on 17 October 1998 to consider the available medical evidence and the evidence of the appellant.
80Mr Pearce submitted that:
... the medical evidence in this case is of limited utility. It proves the frank injuries, if I can call them that, and the other injuries and the incapacity in the period from 1990 afterwards in the broad. But it doesn't, and cannot prove, whether the appellant was fit or unfit to perform the duties of a police prosecutor in 1998, and that's just plain commonsense. There's two reasons for that: Firstly, of course, the medical evidence lacks any contemporaneous quality; secondly, as we know, there was an intervening injury in 1999.
81However, Dr Endrey-Walder had no difficulty in providing an opinion in his report dated 2 December 2009 that:
It is one's impression that by the mid-1990's he would have indeed been sufficiently functionally restricted on account of residual pain at the right foot and ankle to realise his long term incapacity for Operational Police Duties.
82In a supplementary report dated 26 September 2012, after considering the PSS medical report and a number of statements, Dr Endrey-Walder stated:
With particular reference to page 6 of the PSS Medical Report, it is my opinion that by the time Mr Locker resigned from the NSW Police Service he would have been incapable of "standing or sitting for long periods, running and negotiating obstacles to pursue and affect the arrest of suspected offenders".
83This was not the appellant's evidence. He said that he would have probably spent 90 per cent of his time in court. His evidence was that he was in court "most days". He agreed that "by large" prosecutorial work involved clerical and advocacy work.
84The appellant's evidence was that his right ankle did not stop him from doing his advocacy and administration work. Nor did it stop him from undertaking his annual gun training of which he said about 70 per cent was standing and firing from different positions and 30 per cent had a physical component where the officer would be placed under a pressure situation. His evidence was that he had difficulty with the physical part of it, which included running, but his ankle did not preclude him from completing the course.
85During cross-examination Mr Ower asked Dr Endrey-Walder to assume that the appellant did not take any time off work whatsoever in relation to his right ankle or right foot condition between 1994 and 1998. Asked whether it would be reasonable to conclude, based on those two assumptions, that he was capable, so far as his right foot and ankle were concerned, of carrying out the duties he was assigned at that time, Dr Endrey-Walder's evidence was "that it could be reasonable to presume that he was capable of doing so". As to whether this was accompanied, or caused him any physical discomfort or pain, Dr Endrey-Walder could not say. He accepted that he was able to perform his duties.
86Similarly, putting to one side some confusion that arose during the consultation between the appellant and Dr Bodel in respect of the appellant regarding himself as being an operational police officer, Dr Bodel's opinion was that "this gentleman's infirmities would not have rendered him incapacitated for his prosecutorial duties". Dr Bodel did have some reservations as to whether the appellant was able to undertake annually the DEFTAC training and "live fire". However, as I have already observed, this was based on an incorrect assumption. The appellant's evidence is that he was able to undertake this training.
87Dr Bodel was also cross-examined by Mr Pearce in respect of the appellant's capacity to carry out security duties. He confirmed that, in his opinion, the appellant was able to carry out such work as he had been "doing it".
88Turning to the report of Dr Kuo, who was asked whether the appellant was incapable of personally exercising the functions of a police officer on his last day of service, Dr Kuo said:
I do not have any documentation to confirm the applicant was personally incapable of exercising the functions of a police officer.
I cannot confirm if this had occurred. I only have the account given by the applicant that he had reservations when he had to chase after or apprehend suspects or any persons who were unwilling to be apprehended.
89Dr Kuo said that the right foot healed 3rd and 4th metatarsal fracture and possible right ankle talofibular ligament strain, contributed to the appellant's incapacity at the time he left the NSW Police Force. Dr Kuo also said that:
According to the applicant, the top of his right foot across the metatarsals would ache after he had been on his feet for a few hours. When it was bad, there was a sharp cramp going through into the inner (medial) arch of his foot causing him to limp and he would often try to sit down to relieve the pain and pressure in his foot.
...
He was particularly concerned when he had to chase after criminals, suspects because he knows his feet and ankle will not cope and will fail him.
90Dr Kuo was also asked how each medical condition caused or contributed to the applicant's incapacity to exercise the functions of a police officer and how this was apparent at the time. He stated that:
The applicant worked as the Police Prosecutor, a role which required him to stand for a large part of his day.
He was also expected to attend to any normal policing matters including carry and use firearms, chase after and apprehend suspects or criminals.
91Dr Kuo observed that he had no other means to confirm the veracity of the applicant's statements and declarations and that there were no medical or leave records to substantiate his account of the incapacity.
92In a supplementary report dated 12 September 2012, Dr Kuo stated that:
according to Mr Locker, his right foot had ached mildly every two months initially, but by the end of his tenure in 1998, it had become unbearable every second week.
93Dr Kuo commented that:
Accepting Mr Locker's account of the nature and severity of his symptoms to be true and correct, it is unlikely he would have been able to perform the required functions of his duties as a Police Prosecutor durably.
94He added:
However, if some of the limitations of his duties can be accommodated, such as not requiring him to chase after offenders or to arrest them, allowing him a stool to sit down during his court attendances and not requiring him to wear a gun belt, I believe it is conceivable that he could still perform the essential duties of a Police Prosecutor.
95The appellant did not resile from what he told Dr Kuo that at the end of his tenure in 1998 that it [the ankle] had become unbearable every second week.
96I have difficulty in accepting the appellant's description of his right ankle as being an accurate indication of what he was suffering in 1998. There is no medical evidence to support it, nor is the evidence that the appellant was obtaining any treatment in respect of his ankle at this time, or that he took any time off work because of unbearable aching in his right foot every second week. Furthermore, he immediately commenced employment as a law clerk on tendering his resignation and was admitted as a solicitor some three months later. The major part of his practice as a solicitor involves criminal law and "pretty much all appearance work and a fair amount of standing".
97The appellant's evidence was that even when he was required to sit and stand in carrying out his police prosecutorial duties, he was able to cope with the work so far as his ankle was concerned. There is no evidence of any formal complaint to his supervisor in respect of carrying out his duties as a police prosecutor prior to his resignation.
98The essence of the appellant's complaint in respect of the duties that he was unable to carry out are those involving the role of a constable. The evidence does not enable, in my view, a finding to be made that the appellant's duties included the operational duties of a police officer. There certainly was some elements of those duties, on the evidence, which involved duties of a physical nature. That element would appear to be that from time to time the appellant was required to quell disturbances that occurred in the court, or to chase offenders who would jump the dock.
99During his period as a police prosecutor there was one example of a potential attack on a magistrate and another of an offender jumping the witness box and fleeing the court. However, in respect of the security aspect of the appellant's duties, there is no evidence that between 1994/1995 and 1998 that the appellant was unable to perform those duties. In respect of the examples that I have referred to earlier in the evidence, particularly those given by Mr Kozakiewicz, where the appellant assisted him in detaining a prisoner, the appellant completed the task without any complaint. Although the evidence is that disturbances at or around the courts were not frequent the evidence is also that there were emergency procedures in place to deal with disturbances, including an emergency button provided to magistrates.
100The evidence discloses that, on occasions, there was only the appellant and magistrate, together with the accused, in court. However, the evidence does not demonstrate that the appellant during a four year period was unable to carry out his prosecutorial duties because of any problem in respect of his right foot.
101After outlining various incidents that he had been involved in, in respect of prisoners and confrontations outside courts, the appellant's evidence was that during his time as a prosecutor, there were a number of similar incidents where he was required to perform the function of a police officer. There were also many other times when police action was required and he chose to allow others to take a more primary role in those disturbances and arrests, or ignore the problem, due to the restrictions he had with his mobility and to avoid being injured had he involved himself.
102The appellant's evidence was that he came to the conclusion that he could not continue in the role as a police prosecutor because of problems with his right foot. It was this concern that led him to tender his resignation in November 1998.
103However, as I have already observed, the reality of the appellant's position was that he was studying Law over the four year period that he was a police prosecutor. Upon resigning from the NSW Police Force, he was immediately employed in a law firm. The clear inference, in my view, is that by 1998 the appellant had chosen a different career path.
104I am not persuaded, on the evidence, that the appellant was incapable of carrying out the duties of his office, those being the duties of a police prosecutor, at the time of his resignation. The appellant took no time off work between 1994 and 1998 while working as a police prosecutor because of the injuries he suffered to his right foot and right ankle in 1990. He also did not complain to his supervisors of any problems he was having with his right foot and ankle that was affecting the performance of his duties as a police prosecutor. In addition, the medical evidence does not enable a finding to be made that the appellant was incapable of carrying out the duties of his office at the time of his resignation from the NSW Police Force.
105The appeal should therefore be dismissed.