73 Later, in cross-examination, the appellant conceded that he was able to do his job until the time that he ceased work, due to emotion problems. He further accepted that despite having sometimes back pain through prolonged driving, there was not one duty that he did not complete or perform until he stopped work. The appellant's evidence was that despite the fact that driving caused him back pain, he was able to complete all the driving tasks that he undertook right up until the time that he ceased work. He accepted that the only duty that provoked his back pain was driving for long periods. Although he said there may have been other factors, he was unable to elaborate. The appellant accepted that notwithstanding the back pain he suffered, he was able to carry out his duties.
74 In my view, the picture that emerges from the appellant's evidence, particularly out of cross-examination, is one where his credibility as to the severity of the symptoms in respect of his back must be suspect. Despite the appellant's evidence that driving long distances exacerbated his back pain and that he would only have respite for two or three weeks at a time, presumably if he was not driving, he did not seek any treatment from a doctor for his back pain from 1995 after sustaining the injury, despite visiting his general practitioner on at least two occasions during the period prior to his medical retirement.
75 On every occasion that he saw Dr Roche after 27 April 1995, he did not raise any problem with his back or legs. It is difficult to accept the appellant's evidence that it was both his emotional state and his back pain that caused him to stop working. When he attended Dr McGee and subsequently Dr Douglas, he made no mention of any problem associated with his back. The appellant had still not seen a doctor regarding his back pain. He made, in my view, a very important admission to Dr Evans that his back and leg injury was not severe enough to stop him working and that he could do his job as a Police Officer if he was only suffering from back and leg injuries.
76 Dr Evans' evidence was clear and convincing. He stated he dictated exactly what the appellant told him. Indeed, in the event that the doctor had made an error, one would assume that it would have been corrected by the patient. Dr Evans, when pressed in cross-examination, rejected the proposition that the appellant did not give him the history as recorded in his report. Dr Evans' evidence was that he does not alter reports which he has dictated. He has been doing it the same way since 1974. He has found it an easy and reliable way of preparing medical reports and for him, he stated, it was pretty foolproof.
77 Dr Evans' evidence was that his practice when examining a patient for the purposes of providing a medico-legal report is to dictate the history in front of the patient and the only part that the patient does not hear is the opinion which Dr Evans dictates when the patient has left the room. His evidence was that he would not have put the history in his report if he had not taken it from the patient.
78 Dr Evans said it was very rare for anyone to say that what he had said was incorrect, particularly in terms of the history of the patient. His evidence was that he was very confident that the appellant had given him this history. I prefer Dr Evans' evidence that the appellant made the comments as recorded in Dr Evans' report.
79 Dr Wallace's evidence was that the appellant told him that he was not driving a motor vehicle at all in 2005, although the appellant's evidence was that from time to time he was driving his partner's motor vehicle at this time.
80 There was also the unsatisfactory evidence regarding the chiropractor undertaking an x-ray of his back. The appellant made no reference to that in any of his examinations with the specialists. He stated to Dr Wallace in 2001 that he had no difficulty in dressing himself. When examined in 2005, he stated to Dr Wallace that he now had difficulty in that regard. However, he did not inform Dr Wallace in 2005 that he was riding a motor bike of 800cc weighing 160 kilograms. Dr Evans' evidence was that, as far as carrying out the duties of a superintendent, the appellant's 11.5 per cent permanent impairment of his back and consequential 2.5 per cent loss of efficient use of his left and 3.5 per cent loss of use of his right leg would not have caused him any difficulties in carrying out the duties of a superintendent.
81 The respondent tendered an affidavit of Superintendent Crandell, the Local Area Commander at Deniliquin, who was called to give some additional evidence.
Duties of Current Superintendent at Deniliquin
82 Mr Crandell was appointed to the position of Superintendent in the Deniliquin Local Area Command in September 2005. His job description is covered by JSR 03, Operational Commander. Mr Crandell's evidence was that the role of Superintendent has remained the same for several years. He stated that his role is basically managerial. Mr Crandell oversees and manages the officers under his command. He stated that he is not required to perform frontline policing. He compared his position to that of an army general, with the officers under his command being the "foot soldiers who carry out arrests". Mr Crandell's evidence was that his Local Area Command covered an extensive area. Over the last eight to nine months, he had driven approximately 29,000 kilometres, or roughly between 3,000 to 4,000 kilometres per month in the course of his duties. The manner in which Mr Crandell goes about his duties is left largely up to him. He is able to supervise his officers by speaking to them or making personal visits. The extent, frequency and location of meetings with his staff under his command are his decision.
83 Mr Crandell could not envisage a situation where he would be compelled to perform frontline policing. He stated that there was no policy applicable to him in his current role that would require him to do so. When there is a shortage of staff, he has the power to recall duty officers who are on leave or are on rostered days off, or to require officers to work extra overtime shifts.
84 Mr Crandell stated that he could carry out an arrest if he chose to do so but that this would be irrelevant to the duties of his current office.
85 During cross-examination, Mr Crandell acknowledged that he wore his Appointments (firearm, baton and capsicum spray) and acknowledged that there may be circumstances where he might have to use them. However, his evidence was that normally tactical decisions would not be made by him. Rather, Mr Crandell makes more strategic decisions as part of his role.
86 Mr Crandell's evidence was that he had not participated in ongoing training for the maintenance of CPR skills for some time. He was not sure whether it was a requirement for superintendents to participate in such training. He stated that constables and operational police officers were required to undertake such training.
87 During cross-examination, Mr Crandell stated that a superintendent is certainly not a frontline police officer. When asked about performing the functions of a constable, Mr Crandell gave the following evidence:
WALSH: Q. But would you agree with me that a superintendent might at times perform the functions of a constable in addition to his administrative and ministerial responsibilities in the course of his duties?
A. It would be a rare occasion I would think, unless by choice.
Q. And such choice is within the ambit of how a superintendent performs the duties taking into account the discretion that you earlier described?
A. Yes, but once again, I would say it would be a rare occurrence.
Q. It is up to the individual, isn't it?
A. Yes.
88 In re-examination, Mr Crandell stated that as a local area commander, he had not had occasion to use his appointments and would not expect to, under normal circumstances.
Consideration
89 In determining this appeal, it was common ground that the relevant provision was s 10B(2A). As I have already observed, there are two parts to the test found in this section. The first is incapable of discharging the duties of office and the second part of the test is that the appellant is incapable of discharging the duties of any other office (position) in the Police Service at the time of his resignation. Such a finding depends upon answers to the following questions:
(a) was there another position then in existence, the duties of which (having regard to medical advice on the condition and fitness of the appellant) was capable of being discharged by the appellant?
(b) was such position available to the appellant at that time?
(c) was the position not lower than the rank of superintendent?
(d) would it be reasonable to expect the appellant to have been employed in that position?
90 It is not necessary to answer the question "was there any such position available to the appellant at the time of his retirement" as there was no serious contest in respect of this issue.
91 If the amendment applies, it is necessary to look at the duties of office and s 14 of the Police Act within s 10B(2BA) together with the principles that emerge from the cases already cited in these reasons.
92 On either approach, I find that the appellant could not have satisfied the test that he was incapable of discharging the duties of office of a superintendent because of his back condition and the injury to his legs as at the date of his medical retirement. The reasons that led me to reach this conclusion require a consideration of the appellant's duties of office and incapacity. They can be shortly stated.
93 The appellant held the position of Superintendent at Deniliquin. If the duties of a constable are incorporated into the duties of every police officer, in my view, such duties would be carried out by a Superintendent of Police on a more strategic than a tactical basis. It is necessary to take a more practical approach in resolving this issue and to concentrate on what in practice occurred in relation to the duties of office of the appellant. For the purposes of this examination, I take the relevant date as being the last date of active service of the appellant.
94 There was little dispute between the parties in respect of the duties of office of the appellant when he held the position of Local Area Commander at Deniliquin. I have earlier referred to the duties as set out in JSR 03. Mr Crandell, the current Local Area Commander acknowledged that JSR 03 sets out the duties that he currently undertakes in that position, although the geographical area of the Command has been reduced since the appellant held the position. It is significant that this document does not refer to any physical duties which, on the evidence, could comfortably be said to impact on the appellant's physical incapacity in his back.
95 The appellant's evidence was that JSR 03 sets out virtually everything that he was required to do in his designation as Local Area Commander with the rank of Superintendent.
96 Prior to taking up this role, the appellant was the Duty Officer for a number of months at Wagga Wagga. He acknowledged that his duties included patrolling the streets, driving motor vehicles, assisting in the processing of prisoners and various other duties including the searching of premises. These duties represented a wider range than those that he was required to perform as the Local Area Commander in Deniliquin. He acknowledged that he did not have any time off during his period as a Duty Officer and that he was able to perform all of his duties. The appellant acknowledged that as a Local Area Commander, he saw the role as largely a leadership role with some managerial aspects to it. This position was offered to the appellant who was aware of the duties that it entailed. The appellant's evidence was that there was nothing in the description of duties that he thought he could not handle when he accepted the position. The appellant was asked what duties involving physical strength he was unable to carry out because of his painful back and his evidence was that as part of his leadership role, he wanted to be able to assist Police Officers in their work so as to demonstrate a high profile approach to the community.
97 However, the only example of physical activities that the appellant was able to give was that his back condition prevented him from undertaking was assisting officers in the gathering up of exhibits, especially large exhibits.
98 The appellant accepted that in respect of his example, the work was being performed, albeit not by him, but being done under his supervision. The appellant had under his command an authorised strength of 110 officers and the ability to delegate. In my view, the duties were clearly being performed and there was no real requirement for the appellant to carry out the physical work involved with a search because there were other officers there to do it. If the new section prevails, in any event, this would fall into the category of calling upon another officer to assist. On the evidence, looking at the practical necessities of the duties of a Superintendent, the physical aspect does not appear to me to arise, except in respect of the driving of a motor vehicle. It was agreed between the parties that the driving undertaken by the appellant was extensive, being somewhere in the range of approximately 8,000 kilometres a month. The appellant's evidence was that at the end of long trips and also during long trips, he would experience occasional back pain and discomfort. The appellant could drive and the evidence has to be considered in its totality. At no stage did he ever have to suspend his duties because of that pain. He could only recall one trip that he did not undertake because of his back pain. It was postponed to a later time.
99 Although the appellant adopted what he described as a high profile in his role, this did not necessitate a requirement for physical duties, apart from his presence. He acknowledged that this role did not involve arresting anyone. In the three years that he was Superintendent, he could only recall two occasions when he wore his Appointments and walked down the street with fellow officers as a show of force. I do not regard this as a physical duty that was beyond his capacity even accepting his back condition.
100 On the evidence, and I find, the relevant duties of office of the appellant did not have a significant physical component. Any potential physical component was within the appellant's capacity given the resources at his disposal. In light of the appellant's position of Superintendent, he was not required to use physical exertion to discharge the "functions conferred or imposed on a constable" as prescribed by s 14 of the Police Act.
101 I turn now to consider the issue of the appellant's incapacity. It is necessary to examine whether the appellant's back condition was incapacitating for the duties of office of a Superintendent which included a significant amount of driving. In my view, it is appropriate once again to take a practical approach in determining this question. As I have earlier indicated, I am troubled by some aspects of the appellant's evidence, particularly in respect of the extent of his incapacity. On occasions, his evidence was vague and unconvincing. The appellant had only undertaken one consultation with his general practitioner and had one chiropractic consultation in respect of his back condition over a period of five years. He has not independently visited an orthopaedic surgeon in respect of his back condition, nor were any x-rays taken of his back between April 1995 and the beginning of 2000. Although the appellant thought that the chiropractor may have taken x-rays of his back, I find this evidence unconvincing. At no subsequent consultation with any of the orthopaedic surgeons who examined him in respect of his application to have his back condition included on a certificate of incapacity, did he mention or make any reference to x-rays being taken.
102 This raises, in my mind, real doubts as to the significance of the appellant's back condition. There is no material in the contemporaneous medical reports provided at the time that the appellant was suffering from psychological problems that led to his retirement on medical grounds, that indicate he had a back condition as well. In his consultation with Dr McGee, the appellant only referred to his psychological or emotional condition which was affecting his day to day policing. He did not refer to any other physical problems. The appellant went so far as informing Dr McGee that he had no difficulties at the Police Station where he was stationed and that his fellow officers were genuinely very good and supportive of him. Similarly, when he saw Dr Douglas, he only referred to his emotional problems, although he described his past medical history which included a hernia operation and an appendectomy. However, there was no reference to his back condition. Had the back condition been as significant as is now contended by the appellant, it is difficult to understand why it was not mentioned.
103 I am prepared to accept the appellant's evidence that he experienced physical symptoms of pain whilst driving, or after driving long distances and this occurred up until the last day of his employment. However, the reason for his medical retirement was for psychological reasons. Despite the physical symptoms of pain from his back, the appellant's evidence was that he still rides a motor bike. Dr Wallace, in particular, was quite amazed at this and maintained that it was something that he would have asked the appellant about. Any reference to riding a motor bike was absent from Dr Wallace's report.
104 I am driven to the view that the appellant's disability flowing from his back condition was minimal. I reach this conclusion, particularly in light of the evidence given by Dr Evans that the appellant informed him that if it was just his back condition, he would continue working. Dr Evans was cross-examined about the preparation of his medical reports which, with the exception of his opinion, were dictated in front of the patient. I reject the appellant's evidence where it is in conflict with that of Dr Evans.
105 Mr Ower conceded that the Court could conclude, in light of the payment of the s 12D gratuity, that the appellant had a partial incapacity if I was to accept that frontline policing was part of the appellant's duties of office. This was despite Dr Evans and Dr Barrett when examining the appellant, forming the view that he was fit to carry out the duties of a Superintendent. Neither completely resiled from this opinion when asked to take into account that the appellant had received a s 12D gratuity based on 11.5 per cent incapacity in his back, 2.5 per cent in the left leg and 3.5 per cent in the right leg. However, when asked whether the appellant, with these disabilities would be capable of undertaking operational police work, their evidence was that he would be unfit for such work.
106 In order to resolve the issue of incapacity, I propose to take a practical, rather than a theoretical approach to the issue of incapacity. In my view, a critical question for determination is whether there was a frontline policing aspect to the duties that the appellant was required to undertake in his role as Superintendent. The overall duties that the appellant was required to carry out in his role as Superintendent, which is also consistent with the evidence of Mr Crandell, was that that his duties were largely supervisory and non-physical duties. It must be accepted that there was a potential for this to occur, but on the evidence, there was only one example that the appellant could recall which could be said to fall into the description of frontline policing. In SAS Trustee Corporation v Daykin, the Full Bench stated at [24] - [25]:
[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 (unreported, 90/551, 5 December 1991), 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 be able to satisfy the Act's requirements.
[25] What, then, is the position where an applicant has more than one condition which affects the capability to work? The answer lies in the words of the relevant sections, namely ss.8 and 10B. The member must be incapable, from infirmity of body or mind, from discharging the duties of the office (s.8). This does not require that the infirmity be attributable to a single condition; whether it is, or whether there are in existence other features which, taken together or separately, mean that the member has the necessary incapability, is a question of fact to be determined in each case.
107 Their Honours went on to observe that it is necessary to focus upon the fact that each of the conditions suffered by the appellant was sufficient to entitle him/her to a finding that he was incapable of performing the duties of his office. Their Honours noted there is no room 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.
108 In my view, it is necessary for the incapability to be based on the notion of being relatively permanent. In this matter, the requirement for the appellant to undertake frontline policing would be very rare indeed. I therefore find, the physical condition being that reflected in the s 12D gratuity did not prevent the appellant as a member of the Police Force from discharging the duties of a Police Officer. Any potential physical component was within the appellant's capacity given the resources at his disposal. 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 s 14 of the Police Act.
109 I find the extent of the appellant's disability flowing from his back condition is minimal and would not have incapacitated him for his duties of office, even if those duties were more physically arduous than has emerged in the evidence. Such duties could partially incapacitate the appellant from time to time for frontline policing, however, as was observed in Daykin, there is no room for the operation of any partial incapacity approach. The focus of the appellant's case was in respect of the injury to his back. There was little evidence that the injury to the appellant's legs incapacitated him from his duties of office. Taken together, the appellant's disability is minimal and would not have incapacitated him from performing his duties of office as a Superintendent.
110 In light of the provisions of s 10B(2)(b), I find that a causal nexus between the incapability and the infirmity of the body has not been established by the appellant.
111 Finally, it should be observed that the situation may well have been different if the duties of office were those of a general duties police officer.
112 I conclude that the appellant's appeal should be dismissed. No submissions were made by the parties in respect of the question of costs. I make the following order:
1. The appeal is dismissed.