Morley v SAS Trustee Corporation

Morley v SAS Trustee Corporation - [2007] NSWIRComm 90 - NSWIRComm 2007 case summary — Zoe

[42]

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. (f) the causal nexus between the appellant's incapacity and his infirmity of body was not shown as the appellant's position as a Superintendent did not require physical exertion to discharge the "functions conferred or imposed on a constable" as prescribed by s14 of the Police Act . Staff J approached this in the following way: 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 ss8 and 10B. The member must be incapable, from infirmity of body or mind, from discharging the duties of the office (s8). 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.

[88]

19 As the parties have helpfully and very clearly set out, there are three issues arising for consideration in this appeal, two of which were accepted as relating to the trial judge's findings based on the evidence and applicable law and the remaining issue a question of the proper construction of s10B(2BA) of the PRS Act. In our view, the key issue arising for consideration on appeal is the proper construction of s10B(2BA). We would grant leave to appeal with respect to that matter. It is an issue of general importance in this area of jurisprudence. For the reasons we shall give, the two issues relating to the findings of Staff J are not issues in respect of which we consider there is a sufficient basis to grant leave to appeal. Section 10B(2BA) of the PRS Act 20 Section 10B(2BA) of the PRS Act was introduced in response to the decision of the Full Bench in Boland. In Boland, a Full Bench of this Court was required to consider the construction of s10B(2B) of the PRS Act and, in particular, the meaning of the phrase "the duties of office in which the member was employed at the time of resignation". A consideration of the phrase arose in the context where, at the time of resignation, the appellant had been directed to perform selected or "light" duties rather than the usual duties of a plainclothes constable. The question thus arose as to the correct identification of the appellant's duties of office at the time of resignation. The majority (Marks and Schmidt JJ) held (at 160-161): 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 of time inherent in s10B(2B), namely as at resignation and also with other relevant provisions of the Police Service Act. 21 In a dissenting judgment, Hungerford J interpreted the reference to "office" as referring to a position to be held by a police officer pursuant to s 11(1) of the Police Service Act and found that the direction to perform restricted duties did not constitute a position. As such, the last and relevant position held by the appellant at the time of his resignation was that of plainclothes constable at Maroubra Police Station for the purposes of the PRS Act and none of the conditions in s 82(1) of the Police Service Act existed to make that position vacant. 22 Following this decision, the NSW Parliament introduced the Superannuation Legislation Amendment Bill 2006 which, among other things, introduced s10B(2BA) into the PRS Act. The second reading speech contained the following comments regarding the new provision: A decision of the Full Bench of the Industrial Relations Commission in Derrick [sic] Boland v 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 past 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 polices officers 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. 23 We observe that the particular factual matrix that arose in Boland does not arise in the present instance as there is no contest as to the particular position that the appellant held at the time of his retirement, namely a superintendent stationed at Deniliquin. 24 The point of difference between the parties' respective interpretations of s10B(2BA) is how regard should be had to the functions conferred or imposed on a constable. In essence, Mr R Seton SC and Mr M Walsh of counsel, who appeared for the appellant, contended that the effect of s10B(2BA) in the context of the appellant's position was that account needed to be taken of the duties of a superintendent, because that was his position and rank at the time, and also those duties of a constable as referred to in s14 of the Police Act. In taking the latter into account, counsel for the appellant contended that the effect of this provision is to provide the police officer with the obligation to take whatever steps are necessary and reasonable to apprehend a villain and that it must be determined whether an applicant is able to undertake this task. Counsel for the appellant further submitted that Staff J did not apply that test as he only looked at the duties of a superintendent in the context of assessing whether the appellant was incapable of performing the duties of office. 25 Mr P Menzies QC and Mr T Ower of counsel, who appeared for the respondent, agreed that regard had to be paid to the duties of a constable, however, he drew a distinction between the identification of those duties in a general sense and how, in a particular sense, those duties might be performed by an officer in the office in the police force in which that officer was then employed. In this regard, counsel cited the decision of Lee J in Griffiths v Haines [1984] 3 NSWLR 653 as authority for the proposition that the way in which the duties of a constable will be performed will differ across ranks. 26 At the outset we observe that the effect of the appellant's contention is that every officer carries, theoretically, the full range of duties of a constable which may be called upon and s10B(2BA) requires the testing of the physical or mental capacity of an officer against the full range of the potential duties of a constable. For the reasons we shall give, we do not accept that this is the proper interpretation of the test in s10B(2BA). 27 As to how duties of a constable can be performed, counsel for the respondent referred us to the judgment of Lee J in Griffiths. In Griffiths, in the course of deciding whether the plaintiff had a claim in negligence against the Government, Lee J was required to consider the question of what duties are cast by law upon a constable. Lee J stated: The duties of a constable are, so far as early times were concerned, dealt with at length in Lambard's Duties of Constables , 1610 ed 11 to 22 and 4 Holdsworth's History of English Law , 1st ed 124, and it can be seen that the duties then, as now, were manifold and involved a great deal more than direct and immediate attention to keeping the peace and preventing crime. For the purposes of the present case however it is unnecessary to go beyond the statement, earlier set out, of Viscount Cave LC in Glasbrook Brothers Ltd v Glamorgan County Council (at 277), where his Lordship said:

[91]

"… It is also true that the primary duty of the police is the prevention of crime and the arrest of criminals; but that is only a part of the duties of the police in London. There is a general duty to protect the life and property of the inhabitants; …." 28 In Griffiths, the critical matter was whether the actions of the police involved in the Hilton operation and alleged to have caused the plaintiff's injuries, could have been regarded as having been other than the actions of constables performing their independent functions. As to this, Lee J concluded (at 666-667): Senior police planning an action to protect persons from threatened or possible criminal attack or planning to prevent a breach of the peace are no less discharging the duties of constables at law than are those who are actually physically engaged in the operation which results from those plans. The fact that the police force is organized into different ranks and acts on the principle that the lawful orders of superiors will be observed does not, as the Privy Council pointed out in Attorney-General for New South Wales v Perpetual Trustee Co (Ltd) (at 480) provide a reason for concluding that the police involved in an operation such as the one under consideration here are no longer acting as constables exercising original authority or exercising an independent discretion. 29 The appellant sought to distinguish the relevance of Griffiths on the basis that it involved a different question as to whether the particular acts undertaken were duties of a constable in the context of whether the Government was vicariously liable in respect of those acts. The appellant also submitted that any description of the duties of a constable by his Honour was strictly obiter as he did not have to fully set out the duties of a common law constable. On that basis, the appellant contended that his Honour did not purport to set out an exhaustive outline of the duties of constable and, as such, Griffiths does not offer much assistance to determine what the duties are of a constable. 30 We do not accept the appellant's submissions regarding Griffiths. We consider that the proposition that the respondent is seeking to draw from Griffiths is not related to the provision of an exhaustive list of the duties of a constable. Rather, we consider Griffiths supports the notion that different ranks within the police force can undertake the functions of a constable in different ways, relevantly by direct action or by planning or directing the actions of others. We accept the relevance of Griffiths in this regard. 31 Further, we agree with the respondent that in approaching the proper interpretation of s10B(2BA) it is necessary to have regard to how the duties of a constable would be performed and that this is done by reference to the particular rank or office of the police officer under consideration. In other words, we consider that the function of every police officer includes the common law obligations or functions of a constable but that the way in which those functions will be carried out in a particular instance and at a particular point in time will be determined by reference to the particular rank or position held by the police officer under consideration. 32 Accordingly, we do not consider that Staff J was in error when he found that to the extent the appellant had any physical limitations due to his back injury he could have effectively delegated the task to a subordinate. We consider that this is entirely consistent with the notion that the functions of a constable will be performed by a particular police officer in a manner consistent with their position or rank within the police service. This is not to say, as counsel for the appellant sought to do, that the functions of a constable will differ from applicant to applicant but rather that the manner in which those functions may be performed will differ. 33 We also do not consider that, as the appellant submitted, this means that regard is only had to the actual duties of a superintendent and not the duties of a constable. Rather, the functions of a constable are considered within the context of the performance of those functions being undertaken by a police officer in the position of a superintendent. We consider that this is the correct way to apply s10B(2BA). 34 The respondent contended that if the appellant's approach was correct as to how regard should be had to the duties of office and the duties of a constable, then it would have the consequence that the same set of duties of office would effectively be considered for every officer and that it would make ss 10B(2A) and (2B) redundant as the same duties would be considered under s10B(2BA) as under ss 10B(2A) or (2B). 35 Counsel for the appellant contended that there would not be duplication as it is not correct to assume that the duties of a constable cover the field of any other possible duties and it is possible that a person could discharge the duties of a constable but not those of a higher rank. Counsel for the appellant contended that the reason for looking at the actual duties as well as the duties of a constable was reflective of the overriding requirement for all members of the police service, no matter what rank they are, to undertake and be responsible for maintaining the peace. 36 This contention is answered by our approach to s10B(2BA), namely that regard is had to the duties of the office then held by the particular applicant (in this case, the office of superintendent) and the duties of a constable. In having regard to the duties of a constable, it is necessary to have regard to how those duties are performed by reference to the particular rank or position held by the applicant. Accordingly, as already found, it was appropriate for Staff J to find that, in the case of the appellant, he was capable of performing the duties of a constable by delegating certain tasks to more junior officers. Further, certain duties are simply not required to be performed by a person holding a particular rank or position. In this way, the duties of a superintendent and a constable were both considered, contrary to the appellant's submissions. This is evident from his Honour's conclusion (at para 108): In my view, because of the appellant's position, he was not required to use physical exertion to discharge "the functions conferred or imposed on a constable" as prescribed by s14 of the Police Act. 37 Lastly, counsel for the appellant submitted that Staff J was in error in having regard to a police officer's oath of office in considering the duties of office as the tests in ss 10B(2A), (2B) and (2BA) do not refer to the oath of office and if the oath was to be considered, it would have been expressly referred to. Counsel for the respondent contended that it was quite appropriate to have regard to the oath of office as Hungerford J referred to the relevance of the oath of office in his judgment in Boland and the oath of office under s13 of the Police Act is a prerequisite to the exercise of any function of a police officer, including the functions of a constable referred to in s14 of the Police Act. 38 We consider that the oath of office is relevant to the proper interpretation of s10B(2BA) of the PRS Act notwithstanding that it is not specifically referred to in s10B. It is an intrinsic part of a police officer's functions and, relevantly, taking the oath of office is a prerequisite to the performance of those functions. Accordingly, it was quite proper for Staff J to have regard to the oath of office. 39 In conclusion, we do not consider that the trial judge erred in his interpretation of s10B(2BA) nor did he err in applying its requirements to the appellant's factual circumstances. On this basis, we find no basis to uphold the appeal although as we have earlier found it was a matter appropriate to attract the grant of leave to appeal.

[92]

Other matters 40 Turning then to the other aspects of the appellant's appeal, which as we have already said, effectively amount to a challenge to findings made by Staff J on the basis of the evidence presented and applicable law. For the reasons we shall give, we refuse leave to appeal as to these matters. 41 Having found that Staff J correctly interpreted s10B(2BA) of the PRS Act, we are also satisfied that Staff J correctly applied the test in that provision to the facts as he found them. We consider that Staff J was correct in finding that the appellant's duties as a superintendent were carried out on a strategic rather than on a tactical basis and that no physical duties were shown on the evidence to impact upon the appellant's physical incapacity of his back and that to the extent they did, it was open to him to delegate those tasks. On that basis it was open for Staff J to find that his back condition did not create an incapacity. Further, we consider that it is clear from his Honour's judgment that he took into account both the duties of a constable and those of a superintendent. This is entirely appropriate given the proper interpretation of s10B(2BA). 42 As to the appellant's challenge to his Honour's application of the test in Daykin, again we consider that there is no basis for granting leave to appeal on this ground. We do not consider that Staff J relied on Daykin in reaching his conclusion and this is evident from his earlier finding that the appellant was not incapacitated in the relevant sense. The concern underlying the appellant's appeal on this basis arises from his Honour's description of the principle emerging from Daykin, however, we do not consider that even if his description was in error would it affect his Honour's findings. On this basis, we refuse leave to appeal. Conclusion 43 In these circumstances, leave to appeal should be refused except to the extent set out earlier but the appeal dismissed. 44 This may be a matter where it may not be appropriate to award costs. Accordingly, unless we receive an application for costs within 7 days we will treat the matter as concluded. Orders

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