Morley v SAS Trustee Corporation

Police Act 1990 Police Regulation (Superannuation) Act 1906 LEGISLATION CITED: Police Service Regulation 1990 Superannuation Administration Act 1996 (NSW) Superannuation Legislation Amendment Act 2006 Superannuation Legislation (Amendment) Bill 2006

Boland v SAS Trustee Corporation (1999) 97 IR 127 Murray v SAS Trustee Corporation [2001] NSWIRComm 307 CASES CITED: Quinn v State Authorities Superannuation Board (unreported, 90/553, 22 April 1994) SAS Trustee Corporation v Daykin (2002) 115 IR 172 Thomas v Lewis (unreported, Supreme Court of Queensland, 86/5318, 5 October 1987) Woodlands v SAS Trustee Corporation (2001) 109 IR 132

HEARING DATES: 02/06/2006, 05/06/2006 and 14/08/2006

APPELLANT Mr M J Walsh of counsel Solicitor: Mr E Oates Oates & Smith LEGAL REPRESENTATIVES: RESPONDENT Mr T Ower of counsel Solicitor: Mr B Matthews SAS Trustee Corporation

Application by Christopher Morley to appeal against the decision of the SAS Trustee Corporation given on 29 November 2004

Introduction 1 This is an application by Christopher Morley ("the appellant"), by way of appeal pursuant to s 88 of the Superannuation Administration Act 1996 (NSW) against a determination made by SAS Trustee Corporation ("the respondent") on 29 November 2004. 2 In that determination, the respondent declined to include specified infirmities of "injury to the back", "injury to the right leg" and "injury to the left leg" in its Certificate of Medical Incapacity ("the certificate") issued pursuant to s 10B(3)(a) of the Police Regulation (Superannuation) Act 1906 ("PRS Act"). 3 The appellant claimed he was aggrieved by the respondent's determination not to amend the certificate pursuant to s 8 and s 10B of the PRS Act as such a determination disadvantages him in claiming additional benefits under the PRS Act relating to the quantum of his annual superannuation allowance, lump sum gratuity and medical expenses by operation of s 10 and s 12D thereof. 4 It should be immediately noted that the appellant was medically retired from the Police Service on 31 January 2002 when he was issued with a certificate only in relation to the infirmity of major depressive illness with melancholia as specified in the certificate of the Police Superannuation Advisory Committee ("PSAC"). The medical discharge had been sought by the appellant in respect of medical conditions of anxiety, depression, back pain and leg pain. The Issue in the Proceedings 5 The primary question to be decided by this Court is whether the appellant's orthopaedic conditions (injuries to the back, right leg and left leg) are "causally connected" to his incapacity to perform his duties of office. 6 This was the test approved by the Full Bench of the Industrial Relations Commission of New South Wales in Court Session, as it was then known, in SAS Trustee Corporation v Daykin (2002) 115 IR 172 at [24]. In that case, their Honours reviewed judgments of Hungerford J in Woodlands v SAS Trustee Corporation (2001) 109 IR 132 and Glynn J in Murray v SAS Trustee Corporation [2001] NSWIRComm 307. At [29] their Honours observed that the issue in Woodlands was whether or not the certificate issued by the STC to the member of the Police Force should be amended to include an additional condition, being injuries to the feet. The purpose in the pursuit of the amendment was to enable a s 10B Hurt on Duty Claim, although, as Hungerford J noted, the origin of the condition was not a matter for his determination. Their Honours went on to observe that: "… Given our conclusions about the meaning of "infirmity", we have some doubt that the reference to "multiple infirmities" by his Honour is intended to refer to conditions rather than infirmities within the meaning of the PRS Act. However, the crucial aspect, for present purposes, of his Honour's conclusions is expressed in language beyond doubt and, we think, consistent with our conclusions. We refer particularly to that passage cited above which was taken from par 38 of the judgment in Woodlands. That conclusion concerning multiple infirmities is consistent with our view on that matter." 7 The passage to which their Honours were referring (at [38] of Woodlands) is in these terms: … In the result, I accept Mr Ower's submission that any infirmity or infirmities may properly be specified in a certificate, provided that the police officer concerned by reason of the specified infirmity or infirmities was incapable of discharging the duties of office; if a particular infirmity or infirmities do not make the officer so incapable then it is not open under the section to include it or them in a certificate. In other words, it is to be emphasised for present purposes, if an officer has the benefit of an existing certificate with a specified infirmity or infirmities then it is not open to add another infirmity unless that other infirmity itself was causally connected to the incapability to perform duties. 8 I therefore propose to approach this matter in accordance with the principles set out by the Full Bench. Agreed Matters 9 Before turning to consider the evidence, it is appropriate to record that the following matters were not in contest: (i) on 19 April 1995, the appellant suffered a musculo-ligamentous strain at his lumbar spine as a result of an injury he suffered in the course of a fall whilst carrying boxes of paper upstairs at work.

(ii) on 6 July 1995, the appellant completed a "Claim for Hurt on Duty Benefits" pursuant to s 12D of the PRS Act for permanent impairment to his back and legs;

(iii) on 11 July 2000, the appellant served his last day of active duty;

(iv) on 19 July 2000, the appellant made an application for medical discharge and amongst the medical conditions claimed were "back pain; leg pain";

(v) the respondent sought expert advice from a number of doctors by requests in the form of letters; (vi) on 26 June 2003, the respondent made the following determination in regard to the appellant's s 12D claim by the payment of a gratuity founded upon his permanent impairment as follows: (a) 11.5 per cent permanent impairment of his back;

(b) 2.5 per cent loss of left leg at or about the knee;

(c) 3.5 per cent loss of right leg at or above the knee; (vii) on 31 January 2002, being the date of the appellant's medical discharge within the meaning of s 10B of the PRS Act, the appellant was incapable of discharging the duties of his office as a Superintendent of Police due to the infirmity of major depressive illness with melancholia; (viii) that the appellant would receive an increased superannuation allowance if the appeal was successful.

10 It is unnecessary for me to set out the details of the orthopaedic injury sustained by the appellant in 1995. Mr T Ower of counsel, who appeared for the respondent, took no issue with the question of injury or with the question of some impairment flowing from it. It is the consequences of this injury, particularly in relation to the appellant's performance of his duties that are in issue. Statutory Provisions 11 The provisions of the PRS Act under which the present issue is to be considered appear in s 8 and s 10B. Section 14 of the Police Act 1990 ("the Police Act") is also relevant. To the extent relevant, those sections of the PRS Act state: 8 Determination of members medically unfit (1) A superannuation allowance or gratuity shall not be granted or paid under section 7 or 14 to a member of the police force who: (a) is discharged after the commencement of the Police Regulation (Superannuation and Appeals) Amendment Act 1973 , and (b) at the time of the member's discharge is under the age of sixty years, unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from infirmity of body or mind, of discharging the duties of the member's office. (2) STC may certify that a member of the police force is incapable of discharging the duties of the member's office only if the member is incapable of discharging the duties of the office in the police force in which the member is then employed and also any other office in the police force: (a) which is available to the member, (b) which is not lower in rank than the office in which the member is then employed, and (c) in which it would be reasonable to expect the member to be employed. (2A) For the purposes of subsection (2), the duties of the office in the police force in which a member of the police force is then employed includes (but is not limited to) the duties of a police officer referred to in section 14 (1) of the Police Act 1990. (3) … "medical advice" means the advice of: (a) 2 members of the Police Medical Board, or (b) any one or more medical practitioners nominated by the STC. … 10B Medical examination of disabled member and determination of whether hurt on duty (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. (2) An annual superannuation allowance shall 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, (a1) where the regulations so require, the notification was in or to the effect of the prescribed form, and (b) 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 discharging the duties of the member's office at the time of the member's resignation or retirement. (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. (2C) In this section: medical advice means the advice of: (a) 2 members of the Police Medical Board, or (b) any one or more medical practitioners nominated by the STC. (3) Where a member or former member of the police force is duly certified under subsection (1) or (2), the Commissioner of Police shall: (a) decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be, and the date or dates on which the member or former member was hurt on duty, and (b) give the member or former member written notification of the decision. Police Act 1990 14 Additional functions of police officers (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. 12 Section 10B(2BA) was enacted as a part of the amendments made to the PRS Act by the Superannuation Legislation Amendment Act 2006 which took effect on 30 June 2006. I will turn to consider this subsection shortly. However, before doing so, it is useful to set out how the statutory scheme operates. Hungerford J analysed s 8 and s 10B of the PRS Act in Woodlands v SAS Trustee Corporation, observing at [25] - [26]: [25] It will be apparent that s 8 and s 10B each deal with different situations even though both sections are concerned with a determination of the common question of a police officer's medical fitness for duty; indeed, a perusal of the qualifying requirements in each section for such a certificate will be seen to be essentially the same. Any certificate issued by the respondent as to that question is invariably, as a matter of practice, issued pursuant to and for the purposes of both sections. It is convenient, therefore, to identify why that is so as part of the statutory scheme for the provision of superannuation benefits to police officers. A certificate under s 8 is a pre-requisite for the payment of an annual superannuation allowance under s 7 where the police officer is not hurt on duty and a lump-sum gratuity under s 14 where a police officer is discharged but not hurt on duty. On the other hand, a certificate under s 10B relates to the medical qualifying condition for the payment of an annual superannuation allowance under s 10 to a police officer whose discharge was caused by being hurt on duty; additional benefits in relation to gratuities arise under s 12D for a police officer hurt on duty in respect of loss of limbs, medical expenses, etc. Necessarily, then, of course, s 10B in sub-s (3) thereof makes provision for the Commissioner of Police to decide whether or not the specified infirmity to which the medical certificate related was caused by the police officer being hurt on duty; no such provision would be appropriate in s 8. [26] At the time a certificate is being considered by the respondent for issue to a police officer, the question whether the officer was hurt on duty does not arise unless and until it be decided to issue the certificate concerned on the ground that the officer was incapable, from a specified infirmity of body or mind, of discharging the duties required by the office. And so it is that it is appropriate, as I understand the scheme, for the respondent in issuing a certificate to do so pursuant to both s 8 and s 10B so as to enable, if it should arise, consideration whether the infirmity to which the certificate related was caused by the police officer being hurt on duty; if it was, then superannuation benefits would arise under s 10 but, if not, under s 7. It need only be added as a general comment that the benefits prescribed by s 10 are potentially more favourable to the officer than those under s 7, although it is unnecessary for present purposes to make a comparison of such benefits. 13 I respectfully adopt his Honour's observations. 14 In the present case, the appellant, on 30 January 2002, was granted by the respondent, a certificate under s 8(1) and s 10B(1) of the PRS Act with respect of the infirmity of major depressive illness with melancholia. On 26 November 2004, the Commissioner of Police, in terms of s 10B(3)(a), declined to include specified infirmities of "injury to back", "injury to right leg", and "injury to left leg" in the appellant's certificate of incapacity. In determining this appeal, the question of the operation of the applicable statutory provisions in terms of multiple infirmities arise for consideration. For that purpose, and consistent with the way in which the matter was argued by counsel, I propose to do so by reference to s 10B, and in particular s 10B(2BA), as directly applicable provisions. 15 It was common ground that s 10B(2BA) applied to this appeal. Although I have some doubts as to how this subsection could apply to an appeal from a decision of the STC, which was made before the subsection came into operation, it ultimately does not affect the decision that I have reached in this matter. I therefore propose to proceed on the basis that the subsection applies. 16 The explanatory notes to the Superannuation Legislation Amendment Bill 2006 which amended s 10B of the PRS Act by inserting subsection 10B (2BA) provides: …amends section 10B to make it clear that, for the purposes of determining whether a member of the police force hurt on duty is incapable of discharging the duties of the office in the police force in which the member is then or was employed, the duties include (but are not limited to) the duties of a police officer referred to in s 14(1) of the Police Act 1990. This amendment clarifies the law as it currently stands after the judicial decision in Berrick Boland v SAS Trustee Corporation [1999] NSWIRComm 488. 17 During the Second Reading Speech in the Legislative Council on 7 June 2006 (Legislative Council, Hansard at pp 697) the Hon T Kelly, Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands and Minister for Rural Affairs, in explaining the reason for the amendment to the PRS Act stated: A decision of the Full Bench of the Industrial Relations Commission, in Derrick Boland versus SAS Trustee Corporation (2 November 1999) cast doubt on the validity of the interpretation of duties of office that has been applied for this determination over the last 20 years or more. The judgment concluded in respect of the Act governing the Police Superannuation Scheme: "…The legislation should plainly be revisited by the Legislature in order to ensure that a logical, consistent and readily understood regime applies to the important work which police officers perform in the State, particularly that aspect which regulates their circumstances in the event that they are injured in the performance of their duties." The bill clarifies the definition of duties of office to ensure that it includes the general duties imposed on all police officer by reference to section 14(1) of the Police Act 1990, which states: "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". The amendment makes clear that the interpretation of duties of office that has applied in practice for many years can continue. The bill also validates any past decisions made by the SAS Trustee Corporation. 18 In Boland v SAS Trustee Corporation (1999) 97 IR 127, a Full Bench determined an appeal brought by Mr Boland from a decision of Fisher P, who determined that there was no reason arising out of injury or disability to prevent Mr Boland from working at selected duties within the Police Service. Mr Boland, whilst performing his duties as a constable of police suffered an injury to his neck with a subsequent adverse stress reaction. A rehabilitation programme was created for him which involved the carrying out of clerical type duties at Maroubra Police Station and included the offer of retaining. The then SAS Trustee Corporation declined to certify the appellant as being incapable of infirmity of the body or mind of discharging the duties of a police officer following his resignation. 19 The question that arose for determination by the Full Bench was whether the duties of office were those that were undertaken by Mr Boland prior to his injury, or those that he was designated to perform at Maroubra Police Station after his injury. 20 The majority, (Marks and Schmidt JJ) observed at 160 - 161:

[13.2] A question nevertheless arises under s10B(2B) as to what the duties of such an office are. They may either be the particular duties allocated at the relevant time to such a constable, or the general duties which may be allocated by the Commissioner to such constables from time to time. We favour the narrower approach. In our view the broader approach is illogical and productive of difficulty. It also sits uncomfortably with the notion of employment in an office at a particular point in time inherent in s10B(2B), namely as at resignation and also with other relevant provisions of the Police Service Act. [13.3] …If the duties of the office of such constables were to be approached on the broad basis earlier posed, an inescapable result may be that few constables could ever be found to be capable of discharging the duties of such an office, particularly those for which they did not have the relevant training or experience.

21 The majority went on to determine the issue at 162 by stating: … Accordingly, it follows that the reference in s10B(2B) to 'the duties of office in which the member was employed at the time of resignation' in the case of a constable in the position of the appellant, must be understood to be a reference to those duties last assigned to the member. On the evidence these were the duties which the appellant was directed to perform at Maroubra Police Station on 4 October 1990. 22 Their Honours dismissed the appeal. 23 Hungerford J, although agreeing with the majority that the broad approach (any duties that may be allocated to constables from time to time) was too wide, found that the duties of Mr Boland at the time of his resignation were those being performed by him at the time he ceased work because of the injury, and not the duties that Mr Boland was required to perform at Maroubra Police Station as these duties had never been properly assigned to him. There was no evidence that the restricted duties were ever designated as a position to be held by a police officer. 24 The majority, in considering the broad versus narrow view of the duties of office, considered cl 9(1) of the Police Service Regulation 1990 which states, "police officers are to … promptly obey all lawful orders from those in authority over them" and cl 13(a) "to serve wherever duly directed" and cl 13(b) "to perform such duty as may be duly directed". (See page 160). 25 Hungerford J, discussed the broader versus narrower view of duties, by reference to the same clauses in the Police Service Regulation (similar to the majority (see page 142)) and linked that to s 14 of the Police Act and the oath of office (at 144). In effect, his Honour discussed the broader view, taking into account a wider range of considerations. 26 Importantly, Hungerford J read the requirement of the oath of office (to apprehend offenders and protect property) and s 14 in answer to a submission that those matters were a barrier to selected duties was met by what Kelly SPJ said in Thomas v Lewis (unreported, Supreme Court of Queensland, 86/5318, 5 October 1987) as adopted by Cullen J in Quinn v State Authorities Superannuation Board (unreported, 90/553, 22 April 1994). 27 His Honour observed at 144: …As attractive as such a submission may appear, it loses its force once it be realised that the obligations are cast in terms of, as the oath states, "to the best of my power" and "to the best of my skill and knowledge." A submission to a similar effect was considered by Kelly SPJ in Thomas v Lewis in relation to the Police Act 1937 (Qld) and the Police Rules made thereunder, the relevant part of which were comparable with the statutory scheme and the form of oath applicable to the appellant; his Honour said (at pp 14 - 15) in ruling against it, as follows: "Whilst it is true that a member of the police force cannot lawfully be required to abstain from performing the duties which the law imposes upon him with respect to the preservation of the peace and apprehension of offenders, in accordance with his oath his obligation is to prevent offences against the peace to the best of his power and to discharge the duties legally imposed upon him to the best of his skill and knowledge. Consequently it appears to me to be quite consistent with these obligations that, in the discretion of the Commissioner, a constable, or for that matter any other member of the police force, could remain as such member and employed in duties which did not involve any physical activity, notwithstanding that he was not capable of himself taking any physical activity, notwithstanding that he was not capable of himself taking any physical action to preserve the peace or to apprehend offenders. There is no question of his being required to abstain from performing the duties which the law impose upon him and he would be carrying out those duties in accordance with his oath if, for instance, on becoming aware of a breach of the peace or of the commission of an offence he summoned help from other police officers." In Quinn v State Authorities Superannuation Board (at p 6), Cullen J followed Thomas v Lewis. I too respectfully agree and also propose to follow it. Mr Hatcher's submission on this point must, therefore, fail.

28 Hungerford J agreed with, and followed Thomas v Lewis. I too respectfully agree with their Honours and propose to follow their reasoning. 29 Applying their Honours' reasoning to the circumstances of this appeal, an officer appointed to the position of Superintendent could not ignore a breach of the peace but could call upon another officer for assistance. The Superintendent would not be required to abstain from performing his/her duty, however, it does not follow that he/she is required to personally carry out the duty himself/herself. He/she could summon help from other officers if he/she had some physical difficulty. 30 This means an officer using the best of his/her power and skill in carrying out his/her duties whilst acknowledging, for example, if required to abstain because he or she was unable to carry out a duty, could obtain assistance. His Honour's approach was to, in effect, read down the general duty required by the oath and s 14 of the Police Act. The issue in Boland was whether the duties of office were those attached to the last position held by the officer immediately prior to medical retirement (the majority view) or, the duties of office undertaken by the officer at the time of the injury (the view adopted by Hungerford J). 31 Section 10B requires a consideration of the duties of office in which the member is then employed and includes the duties found in s 14 of the Police Act 1990, that is, the duties imposed on a constable. 32 It has been necessary to discuss the decision in Boland v SAS Trustee Corporation in detail as the legislature in enacting subsection 10B(2BA) did so to cure concerns about the inadequacies of the drafting of the statutory regime that had emerged in Boland and which the majority observed should be revisited by the legislature. 33 The legislature did not determine if the majority, or minority view, in Boland was correct. The legislature determined a wider view of the duties of office should be taken by reference to s 14 of the Police Act. However, there is no reason that emerges from the explanatory notes to the Bill or the Second Reading Speech which would suggest that the legislature was not mindful of the practical considerations discussed by Hungerford J. 34 The issues that divided the majority and the minority in Boland are not present in this appeal. There is no issue between the duties assigned to the appellant and those carried out by the appellant at the time of his medical retirement. 35 In my view, the proper approach to this issue is therefore to treat the appellant as holding the office of Superintendent at Deniliquin at the time of his medical retirement and construe s 10B in light of s 14 of the Police Act and the observations of Hungerford J in Boland. 36 The question that arises is did the injury to the appellant's back and legs affect the performance of his duties as a Superintendent, having regard to the nature of the duties as revealed in the evidence, which I will discuss shortly, read in light of s 14 and the cases referred to in these reasons. 37 It seems to me were this not the case, then it would be unnecessary to consider the specific duties of office because all that would be required to be done was for any officer to contend that his/her duties of office included operational aspects. For example, the inability to apprehend offenders by an officer because of an infirmity of body or mind would thus render the officer incapable of discharging the duties of the member's office. He would be duly certified under s 10B and discharged. 38 The issue for determination is whether the appellant was incapable of discharging the duties of his office as a Superintendent of Police as at his date of discharge (31 January 2002) due to his orthopaedic injuries including any aggravation and exacerbation between April 1995 and 2002 within the meaning of the PRS Act. The Evidence 39 The appellant gave evidence and traced his history of employment in the Police Force with particular reference to the orthopaedic injury he suffered in 1995. That evidence may be summarised in the following way: (i) the appellant attested as a Constable of Police on 3 December 1973. On 19 April 1995, the date of the orthopaedic injury, he was the District Staff Officer (OPS & INT) at the Riverina District Command Office; (ii) on 1 July 1997, the appellant was transferred to Wagga Wagga to be the Duty Officer. This position required him to perform General Duties as a Police Officer, including patrolling the streets, driving Police vehicles, assisting in the processing of prisoners, having contact with prisoners to check on their welfare, co-ordinating and controlling resources at the scene of serious accidents, providing media interviews and liaison for operational activity and other service payments, assisting in searching of premises and controlling the use of the State Protection Support Unit personnel and any other duty required by the Local Area Commander; (iii) on 12 April 1998, the appellant was appointed to the Local Area Command at Deniliquin; (iv) the Command covered an area of approximately 650 kilometres by 250 kilometres, encompassing the towns of Deniliquin, Wentworth, Hay and Balranald. The closest Police Station to Deniliquin was a half hour drive away; (v) as part of the appellant's regular duties, he was required to drive long distances to attend other Police Stations located within the Command. The appellant stated he travelled on average approximately 9,000 kilometres per month by car. The Command has since been restructured and the geographical area has been reduced; (vi) the appellant stated that after 1995, he always suffered from exacerbation of his back pain after driving. Even short distances caused him to experience pain. He often stopped the vehicle and got out and stretched to try to relieve the pain; (vii) in 1999 and 2000, the appellant was unable to participate in any work activities where physical strength was required due to his painful back; (viii) on or about 2 March 2000, he suffered from stress due to a conflict with the Regional Commander. The appellant was informed by the Commander that he intended placing him on a remedial performance agreement; (ix) on 27 April 2000, the appellant submitted a claim for Hurt on Duty Benefits in respect of his anxiety and depression. He was referred to a number of medical specialists; (x) on 19 July 2000, the appellant made application to the New South Wales Police Service for medical discharge; (xi) the appellant stated that at the time he made the Application for Medical Discharge, his major and most immediate concern was his psychological condition. However, he did request his employer and the SAS to take into account his back condition. Evidence in respect of Duties of Office 40 Mr M J Walsh of counsel, who appeared for the appellant, tendered the Duties of Office of the appellant as set out in the New South Wales Police Force JSR 03 Operational Commander Competencies document which is in the following terms: l. Planning & Organising/Work Management Definition Establishing a course of action for self and others to accomplish a specific goal. Planning proper assignments of personnel and appropriate allocation of resources.

Establishing procedures to monitor the results of delegations, assignments, or projects.

2. Communication Definition Expressing ideas effectively in individual and group situations (including nonverbal communication). Adjusting language or technology to characteristics and needs of the audience.

Expressing ideas clearly in memoranda, reports, letters or other documents with appropriate organisation and structure, correct grammar and language or terminology that is adjusted to the characteristics and needs of the audience.

Presenting ideas effectively to individuals or groups when given time for preparation (including nonverbal ­communication and use of visual aids). Targeting presentations to the characteristics and needs of the audience. 3. Teamwork/Collaboration Definition Working effectively with team/work group or those outside formal line of authority (e.g. associates, senior managers), to accomplish Service goals. Taking actions that respect the needs and contributions of others. Contributing to accepting the consensus. Subordinating own objectives of the Service or team. . 4. Maximising Performance Definition Establishing performance and development goals, coaching performance, providing training and evaluating performance. . 5. Individual Leadership/Influencing Definition Using appropriate interpersonal styles and methods to inspire and guide individuals (subordinates, peers, superiors) towards improved goal achievement.

Modifying behaviours to accommodate tasks, situations and individuals involved.

6. Integrity Definition Maintaining and promoting social, ethical and organisational norms in conducting internal and external business activities. 7. Community Focus and Environmental Awareness Definition Proactively developing community relationship by making efforts to listen to and understand the members of the community. Anticipating and providing solutions to community needs. Giving high priority to customer satisfaction.

Awareness of formal and informal influences operating within the Service and externally within the community generally. Recognises important environmental influences. 8. Conceptual/Analytical/Problem Solving Definition Comprehends and distils significant issues giving consideration to organisational and individual impact. Identifies problems and their causes and develops achievable options, exercising judgment and selection of most appropriate course.

Having and using knowledge of systems, situations, pressures and culture inside the organisation to identify potential organisational problems and opportunities. Able to evaluate the impact and implications of decisions and developments on various components of the Service.

9. Technical Professional Knowledge Definition Having achieved a satisfactory level of technical and professional skills/knowledge. Keeping abreast of current developments and trends in areas of expertise. 10. Innovative/Visionary Leadership Definition Creating and achieving a desired future state (vision) through influence an organisational values, individual and group goals, reinforcements and systems. Establishes new approaches to issues and problems. Thinks laterally.

Able to forge new behaviours among subordinates. Shows initiative in recommending and/or leading approaches to change. 41 Although the majority of the duties set out in the JSR Duty Statement could be described as largely managerial or administrative, the respondent, in seeking a report from Dr Michael McGrath, observed that Operational Police Officers could be expected to engage in the following activities in the course of their duties: Get in and out of cars; sit at desks; give chase on foot or while riding a bicycle; overcome the will of others to resist; restrain prisoners; exercise a range of technical options from mere presence to lethal force; provide medical first aid; engage in radio and telephone communication with others and make effective observations. 42 The appellant confirmed, in oral evidence, that those matters comprised virtually all of his duties as a Local Area Commander. During cross-examination, the appellant gave the following evidence: Q. You still haven't seen a doctor or got a referral to an orthopaedic specialist? A. No, sir.

Q. As a duty officer your duties had become a little bit more physical than they had been before; is that right? A. That's correct.

Q. And in that role which you only had for a number of months up until April 1998, but in that role as duty officer you refer in para 24 to patrolling the street; is that right? A. Yes.

Q. Driving police vehicles, correct? A. Yes.

Q. Assisting the process of prisoners? A. Yes.

Q. And various other duties including the searching of premises? A. Yes.

Q. So you had a wider range of duties; is that right? A. Yes.

Q. You didn't have to take any time off because of your back pain, did you? A. No, sir.

Q. And you performed your duties, correct? A. I did.

Q. And then on 12 April 1998 you were appointed Local Area Commander? A. Yes.

Q. As a Local Area Commander it was largely a managerial role, wasn't it? A. I saw it as largely a leadership role. Certainly there were some managerial aspects of it, but I think I outlined that earlier.

Q. Very eloquently, if I may say so. You had a number of men under your command, correct? A. Yes.

Q. How many, do you know? A. We had an authorised strength of around about 110, although I don't ever recall having that many.

Q. To gain your promotion to Superintendent did you have to attend a medical? A. No.

Q. But you knew roughly what the duties of a superintendent involved, correct? A. Yes.

Q. And did you apply for the position or was it just thrust upon you? A. It was offered to me.

Q. So it was offered to you and was it explained to you what it involved? A. Oh, yes, I knew what it involved.

Q. There was nothing in that description of the duties that you didn't think you could handle at that stage, correct? A. When I accepted the position, no, that's right. 43 The appellant was asked to give evidence of work activities where physical strength was required and provide an example that because of his orthopaedic condition, he could not carry out the duty. The appellant stated he found it too difficult to be able to assist in the gathering up of exhibits, especially large exhibits. This was the only example that the appellant could think of where his physical strength was required. He acknowledged that he had men under his command to complete a search, and gather exhibits as required. 44 The appellant acknowledged that between 12 April 1998 and 11 July 2000, he was not required to resist or restrain prisoners. His evidence was that he did participate in at least two patrols through an Aboriginal Mission at Dareton Station with several other officers. He was not required to do anything more strenuous than walk through the area. These were the only occasions that the appellant was involved in patrolling. The appellant accepted that during his period as Superintendent, he had not been called upon to give chase, overcome, or restrain prisoners. His evidence was that he would have avoided involvement in such situations if other officers were present. He accepted that such situations did not arise whilst he was Superintendent. 45 The appellant agreed that his orthopaedic condition did not stop him from getting in and out of cars, sitting at a desk, engaging in radio and telephone communication with others and making effective observations. He was never called upon as a Superintendent to provide medical first aid. 46 The appellant's evidence was that at the time that he was the Local Area Commander in Deniliquin, the then Commissioner, Mr Ryan, made it clear that he required Commanders to be on the front line, actively checking stations, systems and audits and actively consulting with the community within the Command. However, it is clear from the evidence, this did not result in the appellant having to undertake additional physical duties, apart from ensuring a presence in the community. The appellant acknowledged that if there was a requirement to restrain a person or a prisoner, that he could delegate such work, although that situation had not arisen. Evidence in respect of Incapacity 47 The appellant injured his back when he slipped and fell on 19 April 1995 in the course of carrying out his duties. His evidence was that the level of pain which he experienced at the time was severe. For many days after the incident, he had to maintain a rigid posture to prevent twisting or turning his back in any way as such movement caused him to suffer severe and unmanageable pain. 48 At the time of the fall and afterwards, he experienced severe back pain and also felt a "pins and needles" sensation in his legs. The appellant stated that because he was a committed Police Officer, he had made a practice at work of not showing weakness to others and he refrained from taking any time off work or complaining. He took pain relief medication including Mersyndol and Neurofen. 49 The appellant's evidence was that whilst working at Wagga Wagga as the Duty Officer, his duties exacerbated his back pain, and at times during a shift he felt severe pain to a degree that he took a spell to let it settle down. However, he forced himself to press on in spite of the pain in his back as he wanted to get on with the job. Medical Evidence 50 Both parties made available and relied upon a number of reports from medical practitioners who had examined the appellant. 51 Although each party relied upon oral evidence from specialists who had examined the appellant, it is convenient before referring to that evidence to deal with the opinions expressed by the medical practitioners in their reports which were tendered, but without oral examination. 52 For the appellant, the medical reports concerned were from Dr Raymond F Wallace, Orthopaedic Surgeon, of 8 February 2001, 23 March 2005 and 5 August 2005; Dr Michael D McGrath, Consultant Psychiatrist, dated 19 December 2001. The relevant extracts therefrom were as follows. 53 Dr Wallace initially examined the appellant on 8 February 2001. Dr Wallace stated: Examination: He is a fit gentleman of stated years. His lumbar spine shows a range of movement of 80% or normal in forward and lateral flexion. There are no tender areas. His gait is normal. He has straight leg raising to 70° bilaterally and is neurologically intact in his lower limbs. X-Rays: Unavailable for review today. Opinion: I believe this patient has suffered recurrent musculoligamentous strain at his lumbar spine as a result of injuries sustained due to the nature and conditions of his employment in the period 1995 to 1997. His injuries are consistent with the mechanism described of a fall followed by prolonged periods of driving a motor vehicle. At present I do not believe that he is fit to return to his full pre-injury duties at work as a Police Officer. He would not be fit for activities requiring repetitive bending or twisting movements at his lumbar spine, sitting or standing in one position for prolonged periods, repetitive lifting above 10 kilos, working in confined spaces, at heights or on ladders, prolonged driving of a motor vehicle, or prolonged periods of walking or stair climbing. I believe that his condition has now stabilised and I would estimate he has suffered a permanent impairment of his back of 18%, with a permanent loss of efficient use of the left leg at or above the knee, taking into account the leg as a whole, of 5%, a permanent loss of efficient use of the right leg at or above the knee, taking into account the leg as a whole, of 7%, directly attributable to injuries sustained as a result of the nature and conditions of his employment in the period 1995 to 1997. … Prognosis: …Unfortunately he will be unfit to return to his full pre-injury duties at work as a Police Officer in the long term due to ongoing lumbar spinal disability. He would be best suited to continuing in this work on a permanent light duties full time basis with due consideration given to the restrictions on his activities detailed above. Dr Wallace's provided a further Report of 23 March 2005 Examination: His lumbar spine shows no swelling or deformity. He has a range of movement of forward flexion to the mid tibia, extension 10°, left lateral tilt 20° right lateral tilt 20°, left rotation 20° and right rotation 20°. There is tenderness at the L4 spinous process. His gait is normal. He has straight leg raising to 70° bilaterally. Neurological examination of his lower limbs shows equal and symmetrical reflexes. His power and light touch sensation are intact. His plantar responses are flexor. His thigh circumference measures 50cm on the right compared to 48cm on the left. His calf circumference measures 39cm on the right compared to 40cm on the left. … Opinion: Mr Morley is suffering from significant ongoing disability at his lumbar spine as a result of injury sustained in the course of his duties at work on 19th April 1995 and during prolonged periods of driving a motor vehicle in his work as a Superintendent at Deniliquin in the period 1997 to 2001. At present he remains unfit to return to his full pre-injury duties at work as a Police Officer. He would currently not be fit for activities requiring repetitive bending or twisting movements at his lumbar spine, sitting or standing in one position for prolonged periods, repetitive lifting above 5 kilos, working in confined spaces, at heights or on ladders, prolonged driving of a motor vehicle or prolonged periods of walking or stair climbing. He describes previous injury at his lumbar spine in 1973 which has not contributed to his current lumbar spinal disability. Prognosis … He remains unfit to return to his pre-injury duties at work as a Police Officer. He would be best suited to retraining in work involving only light physical activity or clerical duties on a full-time basis with due consideration given to restrictions on his activities detailed above.

54 A further report was provided by Dr Wallace dated 5 August 2005. After reviewing his previous medico-legal reports dated 8 February 2001 and 23 March 2005, Dr Wallace stated: In answer to your further queries, I provide the following information:- 1. Mr Morley was not capable of performing duties as a Police Officer as at his date of medical discharge on 31 January 2002 due to an infirmity of injury to his back and legs. Based on my review with this patient on 6 November 2000, he would not be fit for operational police activities including getting in and out of cars, giving chase on foot or whilst riding a bicycle, overcoming the will of others to resist, restraining prisoners or exercising a range of tactical options from mere presence to lethal force. 2. An officer who had a permanent impairment of the back and legs would not be capable of performing duties as a police officer as at his date of medical discharge on 31 January 2002. 55 The respondent relied on medical reports from Dr Ian Barrett, Orthopaedic Surgeon, of 10 June 2003 and 25 August 2005. It also relied on a report of Dr J Evans, Orthopaedic Surgeon, dated 17 December 2001 and Dr I H Douglas, Consultant Psychiatrist, dated 20 October 2000. The relevant extracts were as follows: Dr Barrett's Report dated 10 June 2003: Opinion 1. A history of the circumstances that the applicant says gave rise to him becoming incapable of discharging the duties of office; A detailed history of this mans (sic) fall whilst walking up a narrow set of stairs in a police station at Wagga in 1995 is as described in the body of the history. Following that fall he developed lumbar back pain with referral of pain to both legs. He did not seek medical attention. He thinks that he may have attended a chiropractor on one occasion. His partner massages his back. He has seen no specialists about his back and no xrays have been undertaken. He said that his back pain is experienced mainly after prolonged driving and that as a consequence of his back pain his depressive illness was made worse. From the history obtained today his back pain appears to have been an insignificant factor in the reason for him becoming incapable of discharging the duties of his office. If it had been a cause of him doing so I would have expected him to have received some formal advice or investigations at some stage over the last eight years. 2. The specific duties that the applicant was required to do that he claims to be unable to perform; Mr Morley said that he continues to experience back pain after prolonged driving. He no longer runs or jogs and he avoids lifting as the consequence of his back pain. 3. Your opinion as to whether the applicant, at the time he commenced sick leave was suffering from a "disabling condition due to injury to both legs and his back" and if he was, the extent that the injury/condition was causally connected to his incapability for discharging those specific duties identified by the applicant; and if so, In my opinion, Mr Morley cannot be regarded as suffering from a disabling condition due to injury to both legs and his back at the time that he commenced sick leave. Although he may have experienced continuing back pain following the incident at work in 1995 he has had no xrays (sic) his back and no medical consultation has been sought to establish an exact diagnosis. His back pain appears to have been of low grade severity. There are no objective signs of significant organic pathology. There are no neurological signs. 4. Your opinion as to how the above claimed condition of "injury to back and both legs" was causally connected to the applicant's incapability to perform those specific duties. In my opinion, there is no reasonable causal connection between the applicants incapability to perform the duties of his office and the claimed condition of "injury to back and both legs". In my opinion the alleged injury to his back has not interfered with his ability to continue his formal policing duties. Mr Morley in my opinion, is also fit to undertake a range of occupations outside the Police Force. 56 In his report of 25 August 2005, Dr Barrett stated: Examination On examination he was 178cm tall and he weighed 84kg. He was recognisable from his driver's licence No. 3141SK. During the interview he sat comfortably. He did not appear to be in any distress. He was able to undress without difficulty. His gait was normal. He could walk on his heels and on his toes. He was able to crouch. Back Examination of his back revealed normal alignment. There was no localised tenderness. He could forward flex to touch to the mid shin level. Lateral flexion was to 20° on both sides. Extension was limited by pain. There was no evidence of muscle spasm. He had marked varicose veins involving his left leg. There was no obvious thigh or calf wasting. Power and sensation were intact. … Opinion A detailed history of Mr Morley's injury at work in 1995 when he lost his footing whilst walking up a narrow flight of stairs falling on his back and landing on his buttocks is as described in the body of the history. Mr Morley stated that he has experienced lumbar back pain with referral to both legs since that event. He has not sought any medical attention. He attended a chiropractic (sic) on one occasion. Initially his partner massaged his back. He has continued to take Nurofen Plus tablets to control his symptoms. No X-rays or other investigations have been undertaken. He said that his back pain was far worse by prolonged driving during the course of his employment. The diagnosis is non-specific mechanical lumbar back pain with non-verifiable radiculopathy. To answer the specific questions in your letter dated 19 August 2005: 1. A history of the circumstances that Mr Morley says gave rise to him becoming incapable of discharging the duties of office as a result of "injury to the back, injury to the right leg and injury to the left leg", or as a result of that condition being a substantial contributing factor. In the history obtained from Mr Morley today he stated the "predominant" reason for him becoming incapable of discharging the duties of his office was his depressive illness. He said that pain in his back and legs contributed to his depression. According to the history obtained, from a physical standpoint, he was able to continue his normal duties as a superintendent up until that time. 2. The specific duties that Mr Morley was required to do that he claims to have been unable to perform by reason of "injury to the back, injury to the right leg and injury to the left leg" Mr Morley stated that - "There was nothing that he couldn't do as a result of his back condition". It was more a case of what he - "Shouldn't have done". He stated that he left most of the lifting to the younger ranks and that he avoided any confrontation with felons.

3. Your opinion as to whether "injury to the back, injury to the right leg and injury to the left leg" was causally connected to him becoming incapable of carrying out the duties identified by Mr Morley, or was a significant contributing factor to his having been so incapable; and if so, In my opinion Mr Morley cannot be regarded as suffering from a disabling condition of his back. The condition of his back was causally connected in a relatively minor way in regard to his incapability of carrying out the duties of his office. He said that his back pain contributed to his depression. From a physical standpoint I do not believe that his back or leg symptoms were significant contributing factors in regard to his incapability to work as a police superintendent. 4. Your opinion as to how "injury to the back, injury to the right leg and injury to the left leg" was causally connected to Mr Morley's incapability to perform the specific duties he identified. As stated in the previous question, the injury to his back, injury to the right leg and injury to the left leg had little causal relationship in regard to his incapability to perform the duties of his office.

57 Dr I H Douglas, in his report of 20 October 2000, stated that a physical examination was not performed. Dr Douglas' conclusion was: … Provided his workplace conflict is resolved, he will in my opinion slowly normalise and become fit for police work over the next twelve months. He does not have at this stage, in my opinion, a chronic major depression that would render him totally and permanently incapacitated for work. 58 In his report of 26 March 2001, Dr Douglas said: It is my opinion that he remains psychiatrically unfit for work due to depression precipitated by work stresses. The depression is now chronic and in my opinion will remain so. 59 In his report of 17 December 2001, Dr Evans stated: Opinion There are no objective abnormalities in this man, who has backaches and some thigh aches after prolonged sitting. I presume, therefore, that there is some low grade disc disease here, something that is common in the general community. However, there is no indication for any investigations or treatment. On his own admission he would be able to do his job were it simply for his back and leg symptoms.

60 During cross-examination, Dr Wallace acknowledged that the appellant may not have given him his complete history. He was asked: Q. Did he tell you he was driving (sic) a motor bike?

Q. Would that be significant at all, a capacity to ride a motor bike of 800 cc?

Q. Would that indicate he has a greater capacity than he displayed on examination?

A. Am, (sic) it would depend upon the extent of that activity and the size of the bike, but certainly a bike of that size would require some lifting ability. During prolonged periods of riding I think it would exacerbate his back pain. It would be significant, yes.

Q. Would it be significant he was actually driving his partner's motor vehicle as opposed to his own on occasion?

A. The history I had in 2005 was that he had, that he was not driving at all.

Q. That is something you specifically asked him about?

Q. As far as you are concerned is it the case that anyone who has a permanent impairment of their back and loss of use of their legs that will be expressed in permanent terms, is it the case that such a person would be in your view incapable of performing the duty of a police officer?

A. Well, it would depend upon the extent of the impairment.

Q. That is exactly what I have put to you. The extent of these impairments are rather small?

Q. 11.5 per cent impairment of the back, so you are talking about a man who has almost 90 per cent capacity as far as your back is concerned?

A. That is, that was not my assessment of his impairment.

Q. Assuming that situation, does that mean he had a fairly wide capacity for the activities of a police officer?

Q. Certainly a superintendent whose role is mostly managerial and albeit doing it with pain, would you say someone who has 88.5 per cent capacity so far as his work is concerned would be able to do that job?

A. I think that is not necessarily the case. I think that a 10 per cent permanent impairment of his back is a significant impairment. I think there are some aspects of his job, prolonged sitting, sitting in the motor vehicle, driving a motor vehicle and particularly if he was dealing with any sort of violent offender, then he would not be able to be capable of doing that job, and if as part of his capability of being a superintendent involves the list of activities which I saw in the letter, then he is not capable of that.

Q. He was certainly capable up until July 2000 of getting into and out of cars?

Q. And you did not take any history from Mr Morley of having an incapacity to do any specific parts of his job as a police officer before he ceased work in July 2000, did you?

A. He gave a history of having difficulty with prolonged periods of driving in that job.

Q. I am not talking about pain or difficulty, I am talking about ability to do it?

Q. He did not say to you there were any particular duties?

A. The history was that activities exacerbated his pain.

Q. I am making the distinction, bear with me, capacity to do something which includes capacity to do it with pain?

Q. As opposed to an interpret (sic) able to do something I am putting to you that Mr Morley had the capacity to do all his duties as a superintendent and did not complain to you about any specific part of his duties that he could not do because of his back?

A. If his duties as a superintendent include that list of activities that we saw, then I don't think it was, he was capable of performing these, and in particular in relation to the duties with offenders and prisoners in the street.

61 In re-examination, Dr Wallace was asked: Q. You were asked questions about him being capable of doing those various matters, having regard to any permanent impairment. Could you explain to his Honour the difficulty, how permanent impairment impacts upon the capability of an individual to do things?

A. Well, this gentleman has, had a significant injury of his lumber spine in 1995 and I was, it was indicated he had continual symptoms. Then he had aspects of his work which have exacerbated his back pain, entirely in keeping with his original injury, and I think there are many aspects of his condition which would be impacted upon by his police duties. I think he has significant impairment of his lumbar spine and certain aspects of his operational police duties he would not have the capacity to perform or should be expected to perform, given his current condition.

A. Well, again, it is not, he could not be depended upon to perform them. He may be capable of doing something of a one off nature or part time but as a policeman he has to be capable of performing these duties and other people are depending upon him to perform those duties and I would not say he could be depended upon to perform those list of duties and in saying that he is not capable of performing them, had he been required to perform them he should be recommended an alternative. 62 Dr Barrett gave the following evidence in re-examination and further cross-examination: OWER: Q. If one takes into isolation this man's back and leg symptoms in your view would he be capable of continuing on as a police Superintendent?

WALSH: Q. (By leave) your last answer is following on from the assumptions on foundations relied upon for you to formulate the opinions that you provide in your written reports; that is correct isn't it? A. Yes.

Q. Were you to take into account, the 11.5 percent, 2.5 percent and 3.5 percent your answer would be quite different wouldn't it? A. Correct.

Q. Were you to take into account that list of duties that I showed to you, from Dr McGrath's letter? A. Yes correct.

Q. Your answer would be quite different? A. I have already answered.

Q. And your answer would be he was incapable of discharging the duties of the police officer? A. Correct.

Q. To clarify one thing. On p 6 you were taken to par 3 of your report and there is a sentence there: "He said that his back pain contributed to his depression?" A. Yes.

Q. In giving your answer to me to those questions you took no mind of that piece of information from Mr Morley, did you? That is a bad question? A. In answering your question I took into account the 11 percent permanent impairment of the back and the assumption of the leg that's how I answered your question but in answering Mr Ower's questioning I am answering that without the availability of that information.

OWER: Q. (By leave) You conceded to my friend, that were you to take into account 11.5 percent impairment to the back and the losses to the legs in your view Mr Morley would be incapable of carrying out the duties of the office? A. Yes.

Q. In what way? A. I would regard that assessment of impairment as a significant impairment of the back and he may not be able to continue sitting in the police vehicle for the long period of time. He would certainly not be able to move quickly to arrest a felon.

Q. So you saw both of those things as being part of his duties? A. Sitting for prolonged periods particularly.

Q. Did you take into account in your answer that he was able to do it without any significant interruption up until July 2000? A. What we have, we are discussing here is a physical symptom so if I am to take Mr Morley on face value they were the symptoms he complained with. If he was a stoic man he may have been able to continue through those duties and that is what he implied to me that he worked through the duties. He worked through his pain to continue working.

Q. So, in terms of actual capacity, he was able to do it up to a certain stage is that right? A. Yes.

Q. And, to assess whether he was capable thereafter you have accepted what he says about his symptoms? A. Exactly. 63 Dr Evans gave the following evidence under cross-examination as to the effect of the appellant's orthopaedic injuries and permanent impairment to his back, and legs on his ability to perform his work. Q. Applying that level of disability, that is, the 11.5 per cent for the back, 2.5 per cent to the left leg, and 3.5 per cent to the right leg, you would agree that such an individual might expect to have difficulty engaging in activities such as restraining prisoners, or overcoming the will of others to resist, wouldn't you?

Q. Further, giving chase on foot, might well present a problem?

Q. In regard to restraining prisoners, you would understand an individual being reluctant to put himself in a situation where he might be exposed to the need to participate in restraining prisoners, wouldn't you?

Q. And that would, on the balance of probabilities, be a reasonable assumption, wouldn't it?

A. The assumption that he might have perceived that he would have difficulties under those circumstances, yes.

Q. And, doctor, it would be, on the balance of probabilities, the case that an individual with that level of disability would actually have difficulty performing those duties of restraining prisoners?

A. I think he would have difficulty from time to time.

Q. And also in overcoming the will of others to resist?

Q. And in regard to driving, it is one thing to soldier on and to be a stoic, but at the time an individual's capability of doing such a duty would be reduced by that level of disability. That's true, isn't it?

Q. Even sitting at a desk for a prolonged period of time might well cause an aggravation to an individual suffering that level of impairment and disability?

Q. In terms of being expected to engage in a range of tactical options from mere presence to lethal force, on balance that level of impairment and disability would be likely to cause incapability to do those things?

A. I would prefer to say reluctance to do those things.

Q. That reluctance would be in the nature of guarding behaviour to avoid any aggravation to the existing impairment and disability?

Q. Doctor, an individual with a level of impairment as I have described, an individual such as Mr Morley, is more likely than not to experience difficulty administering external cardiac compression on a patient whose heart has stopped. You would agree with me on that, wouldn't you?

Q. Certainly using a one-man technique between cardiac message and external air resuscitation, it's more likely than not an individual such as Mr Morley, suffering a level of impairment of 11.5 per cent, 2.5 and 3.5 per cent would suffer difficulty performing a prolonged resuscitation?

Q. In that regard, from time to time, you would agree he could be expected to not be able to engage in that activity, wouldn't you?

A. I think he might have to desist, from time to time.

Q. And similarly, in regard to restraining prisoners, he would have to either avoid it, or else accept that from time to time he would expect not to be able to engage in that activity of restraining prisoners?

Q. Doctor, do you have that document of Dr McGrath's in front of you?

Q. Applying that test to Mr Morley, you would agree that from time to time he would be incapable of discharging the full operational duties of his office, wouldn't you?

Q. If you could put that document down for a moment please, and if you would return to your report of 17 December 2001, please. In as far as you record in paragraph 2 on page 1 an account which reads: "Which he however says are not severe enough to stop him working". They were not the actual words used by Mr Morley, were they?

A. Well, the tense is wrong. That's, "they were". I think I can say, fairly firmly, that he told me that his back and leg symptoms were not enough to stop him working, not severe enough to stop him working.

Q. I want to remind you of your earlier evidence that you said you had no independent recollection of Mr Morley?

A. Yes. 64 During cross-examination, the appellant conceded that he had not sought a referral to an orthopaedic surgeon at any time since he injured his back, nor had he had a CT scan or MRI scan in respect of his back. The appellant did recall seeing a chiropractor on one occasion and he was not sure whether the chiropractor may have taken x-rays. However, this was not something that the appellant recalled when he was examined by Dr Evans or Dr Barrett who recorded that no x-rays had been taken. Dr Wallace records in one of his reports that the appellant saw a chiropractor in 2000. The appellant's first recollection of an x-ray being taken by the chiropractor was when he gave his evidence in chief in this matter. I am somewhat troubled by the appellant's evidence in this regard and in respect of a number of aspects of his evidence, which I will deal with shortly. 65 The appellant's evidence was that he did not see a doctor about his injury to his back or the intermittent pain that he suffered which was provoked from long driving. The appellant recalled seeing a Dr Roach, a general practitioner in Wagga Wagga in 1995 about dermatitis of his scalp. This appointment was after he injured his back but he did not mention the problem with his back to Dr Roach. He next saw Dr Roach in 1998 in respect of a hernia. The next occasion that he saw Dr Roach was on 12 March 2001 in respect of a problem with his left shoulder. The appellant conceded in cross-examination that on each occasion that he had seen Dr Roach after 27 April 1995, he made no complaint in relation to his back. His evidence was he was trying to manage the back pain and he could not manage the psychiatric problems that he experienced on or around 2000. 66 The appellant further acknowledged that although he contended that his back condition was a reason for stopping work, he did not inform any of the doctors that he saw on or around 2000. When the appellant saw Dr McGee in July 2000, he only referred to the emotional problems that he was encountering at work and the day to day problems that he was having in his policing activities. Because of that, the appellant advised Dr McGee that he had no problems at the Police Station at which he was stationed and that his fellow workers were genuinely very good and supportive of him. 67 Dr McGee referred the appellant to Dr Douglas and again during his consultation with Dr Douglas, he did not mention his back complaint. His explanation for this was that he saw Dr Douglas some four months after he had finished work and he was therefore not travelling long distances and was learning to manage the pain in his back. Dr Douglas recorded in his report that the appellant did not volunteer any other symptoms, apart from his emotional symptoms. The appellant accepted that he was not suffering from any other symptoms at the time he saw Dr Douglas, although in describing his past medical history, he referred to his hernia repair and appendectomy. The appellant's explanation for this was that Dr Douglas had only asked him about what operations he had undergone. 68 The appellant was unable to recall any long distance trip that he was unable to take because of his back condition, although he recalled postponing a trip. Apart from this example, the appellant could not recall his duties as an Inspector being interrupted at all whilst he was stationed at Wagga Wagga because of back pain. The appellant's evidence was that as a Duty Officer, his duties had become a little more physical than previously. This was a role which he had held only for a number of months until April 1998. In this role, his evidence was that he was involved in patrolling the streets, driving Police vehicles, assisting in the processing of prisoners and various other duties including the searching of premises. The appellant accepted that he had not taken any time off work because of back pain at this time and he performed all of his duties. 69 On 12 April 1998, the appellant was appointed a Local Area Commander. He accepted that this position was largely a leadership role with some managerial aspects to it. The authorised strength of his command was approximately 110 officers, although he could not recall ever having the full compliment of officers. His evidence was that the position was offered to him and there was nothing in the description of the duties that he did not think he could handle when the position was offered to him. 70 The appellant, in his further affidavit evidence, referred to the report of Dr Evans dated 17 December 2001 and denied saying to Dr Evans that his back and leg pain was not severe enough to stop him from working. He also denied saying that he could do his job as a Police Officer if he was only suffering from back and leg injuries. However, he accepted that the symptoms he experienced with back pain after his fall in 1995 had settled but continued to recur after that and had continued to recur up until the date of the examination. 71 He further accepted that he had informed Dr Evans that "most of the time he had no symptoms but he has had symptoms from time to time, often depending on how much driving he had to do." He also accepted that he informed Dr Evans that when he was at Deniliquin, he would drive approximately 8,000 kilometres per month. In his second affidavit, the appellant put this figure at being as high as 10,000 kilometres per month (and in some cases up to 15,000 kilometres). He accepted in cross-examination that it may have been less. 72 The appellant, when asked about the reasons for him ceasing work, gave the following evidence: OWER: Q. I'm just trying to get some background. I'll withdraw the question if that trespasses into those areas. It was your emotional state that had caused you to stop work, wasn't it? A. It was a combination, sir. Q. I know that's what you're saying now. At the time wasn't it your emotional state that caused you to stop work? A. I'm saying it was both. Q. I know you're saying that now. At the time you stopped work it was your emotional state that made you do it, isn't that right? A. At the time that I stopped work I had been off on sick report for several months. I had not been travelling the great distances that I had been prior to that. My back had recovered to some extent. So if you're asking me whether my back was in a state of extreme pain at that stage no, it was not. Q. Mr Morley, I wasn't asking you that. Your last day of work was on 11 July 2000; is that correct? A. Yes, that's true, sir. Q. You'd been off work for sometime in March or April, correct? A. Yes. Q. Then you've gone back to work? A. Yes. Q. So you're saying that in the four months between April 2000 and July 2000 you weren't doing much driving, therefore the back was okay, so therefore you weren't complaining about it, is that what you're saying? A. That's basically what I'm saying, yes. Q. What caused you to stop work in April or March 2000 were your emotional problems, isn't that right? A. Partially. Q. It was nothing to do with you stopping work because of back pain, was it, in April 2000? A. No, sir, I'm saying there was. Q. You didn't tell anyone about this when you went to seek help for medical treatment, did you? A. No, sir, I did not. Q. You went to see Dr McGee in July and you told her all about the persecution that you were suffering, correct? A. Yes. Q. How this had led to you having this emotional reaction, correct? A. Yes. Q. And the problems you were having in your day-to-day policing activities because of that, correct? A. Yes. Q. You specifically did not refer to any other problems you were having, did you? A. No, sir.

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.

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