SAS Trustee Corporation v Daykin

Industrial Relations Commission (NSW)|1998-07-28|Before: Wright J, Walton J, Peterson J, Mr J, Mr P, Kavanagh J, Dr P

Industrial Relations Commission of New South Wales in Court Session

CITATION : SAS Trustee Corporation v Daykin [2002] NSWIRComm 124 APPELLANT SAS Trustee Corporation PARTIES : RESPONDENT Adam Shane Daykin FILE NUMBER: IRC1112 of 2000 CORAM: Wright J President; Walton J Vice-President; Peterson J CATCHWORDS : Superannuation appeal - Police - Discharge from Police Service on medical grounds - Certification of a major depressive illness with general anxiety disorder - Certificate should be varied to include a work related injury to the right knee - Certificate should be confined to physical or mental conditions preventing the discharge of duties for the foreseeable future - Police Regulation Superannuation Act so construed. LEGISLATION CITED : Police Regulation (Superannuation) Act 1906 ss.7 8 14 10 10B 16 Superannuation Administration Act 1996 s.88 Re Doudie v Kinneil Cannel & Coking Coal Co Ltd (1947) AC 377 at 381 Sydney City Council v INCE & Anor (1989) 16 NSWLR 690 at 698 Wooden v SAS Trustee Corporation (Unreported, 28 July 1998, IRC97/829) CASES CITED : Boland v SAS Trustee Corporation (2000) 97 IR 127 Woodlands v SAS Trustee Corporation [2001] NSWIRComm 232 Murray v SAS Trustee Corporation [2001] NSWIRComm 307

HEARING DATES: 10/31/2001 DATE OF JUDGMENT: 06/06/2002

APPELLANT Mr J P Gormly SC with Ms K T Nomchong of counsel

SOLICITOR SAS Trustee Corporation SYDNEY. LEGAL REPRESENTATIVES: RESPONDENT Mr P Menzies QC with Mr M J Walsh of counsel

SOLICITOR Oates & Smith SYDNEY.

JUDGMENT: - 16 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Wright J, President, Walton J, Vice President Peterson J

Application for leave to appeal and appeal against a decision of Justice Kavanagh given on 25.2.2000 in Matter No. IRC98/5860 JUDGMENT

1 This is an application for leave to appeal and, if leave be granted, an appeal from a judgment and orders of Kavanagh J made 25 February 2000 in an appeal by the present respondent, Adam Shane Daykin, from a decision of State Super SAS Trustee Corporation, the present appellant. Given the number of different proceedings and the transposition of the parties at each alternate stage, we will refer to Mr. Daykin as 'the applicant' and to the Corporation as 'the STC'.

2 The applicant was a member of the New South Wales Police Service and made application to the STC for medical discharge upon the grounds of acute anxiety and depression; damage to right knee; and lower back. The application was supported by two medical reports, one from Dr A M Nicholas, a clinical forensic and educational psychologist and another from Mr. Daykin's general practitioner, Dr P Furey. Neither report referred to the condition of his right knee although the applicant referred to it, in his statement in support of his application, this way:

Early in my career, whilst effecting an arrest in the main Street of Belmont I severely damaged my right knee, I never lost one day from work, nor asked the Service to pay for any of the Doctors Visits or physio sessions. At 1.35am 3.11.92 I reinjured this knee effecting another arrest whilst working at Charleston, as with before I never lost any time off work. To this date my knee is moderately painful and although I have no loss of movement I am constantly conscious not to make any fast movement of it or carry (sic) any large weights. Never once have I complained even though before this injury I weight trained five days a week and played a multitude of sports, something I now cannot do. I currently do karate and jog to mobilize the joint when it is not to (sic) sore. However I understand the limitations of my knee and realize I will not be able to kick out with any great speed or force.

3 The applicant was found by the STC to have been suffering an infirmity described as "a major depressive illness with general anxiety disorder" and the certificate issued to the applicant was so confined. This condition was held not to have been sustained as a result of his having been "hurt on duty". Had he been successful in receiving recognition of his other conditions, particularly that of the knee, and in establishing that they were due to being hurt on duty (that is, work-related) the applicant would have become entitled to receive higher benefits on discharge, for reasons which we will explain in due course.

4 Before setting out the history of the matter, it may be said that the point at the heart of this litigation is whether an applicant for medical discharge under the Police Regulation (Superannuation) Act 1906 ("the PRS Act") must establish a particular disabling injury or condition which incapacitates or whether a number injuries or conditions, some of which may be less than disabling, may be aggregated so as to contribute or add to a state of disablement, thereby meeting the qualifying features of the Act which relate to incapacity due to being hurt on duty. It is said by the STC that the former approach is required by the Act and that her Honour fell into error by applying the aggregating approach.

5 Whatever be the answer to that question, upon the hearing of the appeal there was a concession made by the STC, we think appropriately, that there was evidence upon which it was open to Kavanagh J to find the applicant had established a case to qualify for medical discharge in conformity with the usual approach of the Board. In one sense, therefore, the residue of the appeal may be said to be theoretical. On the other hand there is an efficacy in resolving what is a potentially significant problem for the STC, particularly bearing in mind that Kavanagh J's judgment, which has now been followed in two subsequent cases to which we will refer, has introduced what was submitted to be a new approach in the application of the Act. In these circumstances, we consider it is desirable that the Full Bench of the Commission in Court Session determine the point of construction involved. We grant leave to appeal.

6 Following the initial rejection of Mr Daykin's hurt on duty claim, an appeal by him to the STC Dispute Committee failed. Consequently the applicant pursued the rights conferred by s.88 of the Superannuation Administration Act 1996 to bring the appeal heard by Kavanagh J. Section 88 is in the following terms: 88 (1) A person aggrieved by a determination of STC under section 67 (relating to determination of disputes) may appeal against the determination to the Industrial Relations Commission in Court Session (the Commission).

(2) The appeal must be made within 6 months after the STC is notified of the determination of STC or within such further period as the Commission allows.

(3) In dealing with the appeal, the Commission may exercise any function that could have been exercised by STC in making the determination the subject of the appeal.

(4) In dealing with the appeal, the Commission is to have regard to this Act and any other relevant provisions regulating the superannuation scheme concerned and such other matters as it considers to be relevant.

(5) In dealing with the appeal, the Commission is not bound by the rules of evidence and may inform itself in any manner it thinks fit.

(6) The final determination made by the Commission on the appeal is to be given effect to as if it were a determination of STC.

The Relevant Statutory Framework: the Police Regulation (Superannuation) Act 1906

7 Section 7 of the PRS Act provides an annual superannuation allowance for a member of the police force who has served 20 years or more of equivalent full time service and retires on or after attaining the age of 60 years. It also extends the same superannuation allowance to a person under 60 years of age who has been discharged after being certified under s. 8(1) to be incapable, from infirmity of body or mind, of discharging the duties of the member's office.

8 Section 8(1) prescribes that a superannuation allowance shall not be granted or paid under s.7 (or s.14, which applies to the discharge of a member not hurt on duty) to a member who was discharged after 2 May 1973 and, at the time of discharge, was under the age of 66 years unless the Corporation: "(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".

9 Section 10 then makes provision for a higher superannuation allowance where a member is hurt on duty and s.10B prescribes that a superannuation allowance shall not be granted under s.10 to a member of the Police Force who is discharged unless the Corporation: "(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 discharging the duties of the member's office".

10 This last provision is crucial in the determination of the central issue in the case. The words "incapable, from a specified infirmity of body or mind, of discharging the duties of the member's office" (our emphasis) are those upon which the STC principally relies as indicating that the listing of more than one incapacitating condition, one or more of which perhaps might be of a kind described as a partial incapacity, would not satisfy the requirements of the Act.

11 It will be seen that if the applicant were successful in obtaining a certification of his reasons for medical discharge to include work-related injury, the effect under this statutory scheme would be to cause him to receive an increased superannuation payment.

12 The concession by the appellant to which we referred in par. 6 was made on the basis that there was evidence upon which it was open to find, as her Honour did, that Mr. Daykin was incapacitated in the relevant sense by a hurt on duty injury, namely that to his knee. In those circumstances, it was submitted, there was no need to rely on the combination of injuries to sustain the application.

13 Finally we refer to the provisions of s.16 of the PRS Act which entitles the STC to, at any time, require a member discharged because of incapacity who is in receipt of an allowance, to submit to a medical examination. If, thereupon, the STC is satisfied "that the incapacity . . . has ceased (or no longer precludes the former member from serving in the police force in some position in which it would be reasonable for the former member to serve) the STC may, with the approval of the Commissioner of Police:

(a) cancel or suspend the superannuation allowance of the former member, and (b) require the former member to serve again in the police force."

The Judgment under Appeal 14 The result of the appeal was that Kavanagh J held that the certificate issued to the applicant should be amended to include "post traumatic chondromalacia pataella of the right knee".

51 The Court accepts Mrs Daykin's report of ongoing physiotherapy treatment for the injury. While it is unusual to have to rely on a relative's word, I find it is persuasive that there exists a contemporaneous report to prove Mrs Daykin was treating the appellant between the first and second injury to the appellant's right knee at work. The Court finds although the appellant did not seek medical treatment in the years following the second injury he had ongoing problems with the knee arising out of the two work injuries and received appropriate treatment by way of physiotherapy.

52 From the evidence and guided by these principles, I am persuaded the appellant has an ongoing disability in his knee which is, as diagnosed, the condition of chondromalacia patella. The condition is a permanent medical condition which flares up intermittently. I am satisfied such a condition would give the appellant an infirmity of body at the relevant time such as to interfere with his performance of the ordinary duties of a police officer, in the position of Constable, in the NSW Police Force.

53 I am not persuaded on the medical evidence before me, or from the histories as provided to the doctors, the appellant has suffered any injury to his back. I am certainly not persuaded, if he has back pain, it relates to stresses placed on his back arising out of an altered gait because of his right knee injury. I am not persuaded he suffered an injury to his back arising from the 1992 incident. I find therefore the appellant is not incapacitated for any duties in the Police Force by an incapacity arising from a back condition.

54 The appellant bears the onus of proving he was incapable at the relevant time by reason of his knee injury to perform not only his own duties but also any other office in the police force which was available at the time of his retirement and in which it would have been reasonable to expect the member to have been employed in accordance with s10B of the Act.

55 Chondromalacia is a permanent arthritic condition which when it settles is always liable to intermittent inflammation. Such a condition would make a person unable to perform the general duties of a police officer. The knee could be unreliable in any situation and especially any emergency situation which required a reliable, physical reaction. Once it is established, as the Court so finds, there was a knee injury leading to a chondromalacia of the patella, it is also established the member has a permanent condition. The next question to determine is does such a condition cause an infirmity of the body and an incapacity for all or some of the duties of a police officer?

62 What this case exposes is the question of the effect of multiple infirmities and their inclusion on the certificate. I do not find the knee injury led to an infirmity of body such as to render him incapable of performing some duties within the Police Service.

64 The structure of the Police Regulation (Superannuation) Act 1906 is important. After the member is found, at the relevant time, because of an infirmity of mind or body, incapable of discharging the duties of his office there are a number of further steps to be taken under the Act before certification. It must be determined that the member is incapable of performing any other office not lower in rank which is available to the member and in which it would be reasonable to expect the member to be employed, before a certificate issues.

15 Her Honour then referred to the opinion of the House of Lords in Re Doudie v Kinneil Cannel & Coking Coal Co. Ltd (1947) AC 377 at 381 which dealt with the position with respect to the rights of a worker in the UK where two or more incapacitating injuries are suffered, one perhaps producing total incapacity and the other partial incapacity. Viscount Simon said: The situation to be dealt with occurs where a workman meets with two accidents in succession, each of which arises out of and in the course of his employment and inflicts personal injury on him. The injury caused by the first accident gives rise to a weekly payment during partial incapacity, and while these circumstances continue to exist a second accident befalls him causing injury involving total incapacity, in respect of which the workman has a claim for compensation. Viscount Simon developed the principle stating: Once a liability to pay a weekly compensation in view of a degree of incapacity, whether total or partial, is established, the liability continues during the workman's life until the workman's capacity improves. To quote Lord Macmillan (1936 S.C. (H.L.) 12): It is now well settled that a workman who by reason of incapacity due to an accident is entitled to compensation does not lose that right merely because, through some extraneous supervening cause, such as illness or old-age, a natural incapacity is added to the incapacity due to his accident. the employer cannot plead that, as the workman would, by reason of his condition apart from the accident, be incapacitated in any event, he has lost his right to compensation. There is no merger of the accidental incapacity in the natural incapacity.

M'Cann's case (1936) S.C.(H.L.) 12 approved a similar decision of the Court of Appeal in Harwood v Wyken Colliery Co ([1913] 2 K.B. 157), in which the observations of Hamilton L.J. ([1913] 2 K.B. 158) are particularly worthy of study. I agree with the view of the Court of Appeal in Thompson v London & North Eastern Ry Co's Case ([1935] 2 KB 90) that the reasoning in Harwood case ([1913] 2 K.B. 158) equally applies where the supervening cause is a subsequent accident creating total incapacity.

16 Her Honour then referred to the judgment of NSW Court of Appeal in Sydney City Council v INCE & Anor (1989) 16 NSWLR 690 at 698 where Clarke JA said: The principle for which Doudie stands has been continuously applied in this State: Shaw v Darling Island Stevedoring & Lighterage Co Ltd [1957] WCR 134; Beaton v Yips & Co [1966] WCR 78.

17 Kavanagh J then continued 71 Similar circumstances are before the Court. The infirmity of the mind has been found to produce the total incapacity. However each injury creates a separate right. As to the knee, I have found this infirmity leads to a partial incapacity.

72 There is however only one total incapacity. On the Department's own submission there is no other office not lower in rank which is available to the member in which it would be reasonable to expect the member to be employed because of his infirmity of mind. The member, the appellant, was therefore incapable, at the relevant time, of performing any duties because of the effect of his generalised anxiety disorder leading to total incapability.

73 Having found he is incapable due to his knee injury from discharging the duties of his office in the police force and at the relevant time he was totally incapacitated from another injury the respondent submits, no office can be made available to the appellant not lower in rank in which it would be reasonable to expect the appellant to be employed. In accepting this submission the member passes all the relevant criteria under the Act to qualify for certification in relation to his knee injury so found.

74 The knee injury creates a separate right and should therefore be included on the certificate.

75 The appellant should receive certification that at the relevant time he suffered an infirmity of body, namely, a chrondomalacia patella condition in the right knee such as to make him incapable of discharging the duties of his office. Consideration 18 There are two relevant provisions in the PRS Act which deal with the issue to an applicant of a certificate of incapability to perform the duties of the office: ss. 8(1) and 10B(1). The first provision speaks of where the "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".

19 Section 10B(1) uses the same language but adds the word 'specified' to make the phrase 'incapable, from a specified infirmity of body or mind…'. We are informed by senior counsel and accept that the practice of the STC is to issue only one certificate which contains a specification of the infirmity which creates the incapability. That certificate is then available for use as one complying with the requirements and purposes of both sections.

20 The point of construction raised here is not without difficulty. There seems to us no basis for construing the PRS Act as one concerned with only, although it may be its main focus, the subject matter of superannuation. There is clear content of a different kind involved in the hurt on duty concept which underpins the higher benefits which may apply under s.10B. The phrase 'hurt on duty' is defined in s.1 this way: " hurt on duty , in relation to a member of the police force, means injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987 , entitle the member to compensation under that Act".

21 There is further confirmation of the workers' compensation-like nature of some aspects of the legislation in the cancellation provisions in s.16 based on cessation of incapacity. As we understood the ultimate position of the STC on the appeal, this was accepted. Nevertheless, it is perhaps this aspect of the legislation which causes a not infrequent resort to the language of workers' compensation, namely incapacity, when describing the incapability to which ss.8 and 10B refer. See, for example the reference by Kavanagh J to a 'certificate of incapacity' in par. 1 of the judgment under appeal and the use of incapacity as a synonym for incapability by Peterson J in Wooden v SAS Trustee Corporation (unreported, 28 July 1998, IRC97/829 - cited by Kavanagh J at par. 49).

22 However, we refer also to the judgment of the majority (Marks and Schmidt JJ) in Boland v SAS Trustee Corporation (2000) 97 IR 127 (Hungerford J dissenting but not on this point) where there was held to be a synonymity between the word "incapable" where used in s.10B(2B) and incapacity to discharge the duties of the office. We do not need to consider that aspect of the judgment any further as we do not consider it sheds any light on the issues we need to determine herein and we consider that, in any event, that part of the judgment was not necessary for the decision reached in that matter, and it may be truly described as obiter dicta.

23 Nevertheless, the question for determination raises consideration of the way in which the statute operates in both contexts, superannuation simpliciter and hurt on duty. Mr. Menzies for the applicant submitted that while the usual case was that a member with a short term incapacity would not seek to access superannuation, this was not to say that the statute precluded that course.

24 We consider that an approach to the PRS Act which attributed to its purposes such short term remedies would be to misapply the statute. In Adams v State Authorities Superannuation Board, Cullen J. described infirmity, the basal aspect of the statute whether it be a long or short term condition claimed to justify a certificate, as "a physical or mental condition which prevents a member of the Police Force, for the foreseeable future, from discharging the duties of a police officer". This, we think, correctly portrays the primary intention of the PRS Act. While in theory an applicant may be free to bring a claim under this Act in respect of an obviously short term condition which might prevent the member working, the need to establish an infirmity with the longer temporal connotation means that such an application would be unlikely to 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.

26 In the present case, Kavanagh J. found there was another condition, of the knee, which contributed to the incapability. While this is no longer an issue in the appeal, it serves as a useful illustration of the way in which multiple conditions may be dealt with. However, it is necessary to focus upon the fact that each of the conditions suffered by the applicant in this case were sufficient to entitle him to a finding that he was incapable of performing the duties of his office. Were it otherwise, we consider the result would need to be different.

27 Where a number of different conditions are met in an application before the STC, the practice, as we have said, is to specify each condition which contributes to the incapability so that any hurt on duty claim may be properly considered. There is, as we appreciate the matter, no room in this context for the operation of any partial incapacity approach. The statutory regime requires that the applicant be found either incapable or not incapable of performing the duties for, in effect, the foreseeable future. Where the incapability is said to derive from two or more independent conditions, there is simply no point in specifying some relatively trivial condition which itself could not lead to incapability in the statutory sense. For example, a depressive illness of such permanence as to satisfy the requirements may be joined with loss of a leg in a police motor vehicle accident. Assuming that the latter would create a statutory incapability, that example may be contrasted with one where the second condition is a crushed finger, similarly gained, but the injury being short term only. If these two situations are considered without reference to the depressive illness, the contrast is stark. While the crushed finger would have relevance to considerations of a workers' compensation kind, they have no relevance to superannuation based on the notion of relatively permanent incapability. It cannot constitute an infirmity within the meaning of the statute.

28 Apart from the judgment under appeal, there are two judgments of the Commission in Court Session which have followed it. Those cases are Woodlands v SAS Trustee Corporation [2001] NSWIRComm 232 per Hungerford J and Murray v SAS Trustee Corporation [2001] NSWIRComm 307 per Glynn J. It is convenient to deal with these cases by extracting the relevant part from the judgment of Glynn J., which incorporates the reasons of Hungerford J. The judgment of Glynn J. in Murray includes the following: 62 I do not intend to spend too much time on this issue of multiple infirmities, but that is not because I do not accept that the issue is important. It has recently been considered in detail by Kavanagh J in Daykin at [62]-[75] and by Hungerford J in Woodlands v SAS Trustee Corporation ( Woodlands ) [2001] NSWIRComm 232 at [24]-[42]. In that latter case, Hungerford J, having considered the reasoning and conclusion of Kavanagh J in Daykin , adopted and followed her approach. (I note in respect of Daykin that it is under appeal, and that Woodlands was handed down after decision in this case was reserved.) 63 In this case, the Police Superannuation Advisory Committee (PSAC) decided that, in terms of s 8(1) and s 10B(1) of the PRS Act, the appellant was suffering the infirmities of Adjustment Disorder, Depression and Alcohol Abuse. The PSAC had thus rejected the appellant's claim in his application for a medical discharge on 23 April 1998 that he was suffering from post traumatic stress disorder. 64 I do not intend to reinvent the wheel, but set out extracts from Daykin and Woodlands as to principles that guide the approach I adopt in my consideration of this case: The structure of the Police Regulation (Superannuation) Act 1906 is important. After the member is found, at the relevant time, because of an infirmity of mind or body, incapable of discharging the duties of his office there are a number of further steps to be taken under the Act before certification. It must be determined that the member is incapable of performing any other office not lower in rank which is available to the member and in which it would be reasonable to expect the member to be employed, before a certificate issues. ( Daykin , par 64)

... Their Lordships upheld Thompson's Case as reflecting the proper law. Doudie has been consistently followed in New South Wales. As was said in Sydney City Council v INCE & Anor [(1989) 16 NSWLR 690 at 698] per Clarke JA: The principle for which D oudie stands has been continuously applied in this State: S haw v Darling Island Stevedoring & Lighterage Co Ltd [1957] WCR 134; Beaton v Yips & Co [1966] WCR 78; Gatti v Penfolds Wines Pty Ltd [1969] WCR 197 and Holmes v Civil & Civic Pty Ltd (1970) 72 SR (NSW) 583; 92 WN (NSW) 1021. In the latter case the Full Court of the Supreme Court applied Doudie in holding that it was open to the tribunal of fact to make separate awards of compensation in respect of two separate partial incapacities. ( Daykin , par 70) ...

... On the other hand, a certificate under s 10B relates to the medical qualifying condition for the payment of an annual superannuation allowance under s10 to a police officer whose discharge was caused by being hurt on duty; .. ( Woodlands , par 25)

... 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. ( Woodlands , par 26) ...

It is necessary first to identify precisely the qualifying condition for the issue of a certificate under s 10B(1). That question has, of course, arisen from time-to-time in the various cases but, apart from Daykin , I am unaware of any authority where it has been considered in the context of multiple infirmities. Nevertheless, a Full Bench of the Court in Boland v SAS Trustee Corporation (1999) 97 IR 127 extensively reviewed the section ... ( Woodlands , par 34) ...

Although the present matter did not involve such issues, it is instructive to note the comment of the majority ( Marks and Schmidt JJ) in Boland (97 IR at pp 157, 161), as follows:

... ... The word "incapable", ... in the context of the discharging of the member's duties of office, is synonymous with incapacity to discharge such duties in the sense of being unable to carry out the duties or unable to attempt to do so. ... it follows that a causal nexus between the incapability and the infirmity of body or mind must be established. ( Woodlands , par 34)

Applying those comments, [by Hungerford J in Boland (dissenting) at 97 IR at 136] it seems to me plain that the essential condition to be satisfied under s 10B(1), in order for a relevant certificate to be issued, is that the police officer must be incapable of discharging the duties of office in the police force and where such incapability is caused by the infirmity concerned. The statutory requirement in s 10B(1) to that effect was analysed by Peterson J in Wooden v State Authorities Superannuation Trustee Corporation (unreported, IRC97/829, 28 July 1998) in this way (at p 20): There are ... three relevant elements in the statutory phrase, the first being an incapability, the second an infirmity of mind (or body, as the case may be), and thirdly a connection between the infirmity of mind and the inability to work. That is to say that an infirmity of mind which does not produce an incapacity to work means that the definition or test cannot be satisfied. ( Woodlands , par 36) ...

... In Adams v State Authorities Superannuation Board (unreported, 90/551, 5 December 1991) Cullen J attended to the use of the word "infirmity" in s 10B(1) and said (at pp 15-16):

... In the context of Sections 10 & 16 of the Police Regulation (Superannuation) Act 1906 (NSW) in my opinion, the word "infirmity" refers to 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. ( Woodlands, par 37) - Whilst those above authorities were concerned with a specified infirmity as distinct from multiple infirmities, I have no doubt that s 10B(1) in referring to "a specified infirmity" in the singular would comprehend multiple infirmities: see Interpretation Act 1987, s 8(b). Mr Walsh's submission to that effect was not challenged by Mr Ower . 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. ( Woodlands , par 38) The view I have thus expressed as to the construction of s 10B(1) requires further explanation in light of the concession made by Mr Ower that "partial is sufficient", that is, a specified partial infirmity may be included in a certificate where multiple infirmities, as here, exist even though one of the infirmities so specified may itself be insufficient to make a police officer incapable in a total or whole sense of discharging the duties of office. ... ( Woodlands, par 39) 65 I respectfully adopt and apply the reasoning of Kavanagh J in Daykin and of Hungerford J in Woodlands . On that basis I reject the contention by the respondent that the PRS Act requires that the appellant be incapable of discharging the duties of a police officer from one condition alone.

29 In Woodlands the issue 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, injuries to the feet. Again 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. Given our conclusions about the meaning of 'infirmity' we have some doubt that the references 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 own view on that matter.

30 Given the ultimate position achieved in the appeal with respect to the applicant's right to retain the benefit of the judgment of Kavanagh J, it follows that the appropriate order is that the appeal should be dismissed with costs to the applicant of these proceedings as agreed or as assessed. During the hearing of the appeal an issue arose as to whether the costs order made by her Honour contained an error in the nature of a slip. If so, the rectification lies only in her Honour's hands. We grant leave to the STC to approach her Honour in that regard and reserve any residual issue which may arise in the light of that matter.

31 Subject only to that reservation, the orders we make are: (1) Leave to appeal is granted. (2) The appeal is dismissed. (3) The STC shall pay the applicant's costs of the appeal, as agreed or as assessed.

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