(2) An annual superannuation allowance under subsection (1) shall not be payable to a member of the police force to whom an annual superannuation allowance is payable under section 10.
(3) …"
It is to be noted that such a member is not entitled to any "additional amount" for incapacity for employment outside the police force.
Section 8 provides that a superannuation allowance must not be granted or paid under s 7 to a member who is discharged under the age of 60 years unless STC, having regard to the medical advice of two members of the Police Medical Board or any one or more medical practitioners nominated by STC, has certified the member to be incapable from infirmity of body or mind (caused otherwise than by being hurt on duty) of exercising the functions of a police officer:
"8 Determination of members medically unfit
(1) A superannuation allowance or gratuity must 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 60 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 personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990.
Note. Section 14(1) of the Police Act 1990 provides that a police officer has the functions conferred or imposed on a constable by or under any other law (including the common law) of the State.
(2) For the purposes of determining a member's incapacity:
(a) STC is not to have regard to the member's actual rank or position or functions (other than the functions referred to in subsection (1)), and
(b) the capacity to exercise a function by delegation is not taken to be a capacity to personally exercise the function.
(2A) (Repealed)
(3) 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."
Section 10
Section 10 relevantly provides for the "annual superannuation allowance" payable to a member of the police force who is discharged after being certified incapable from a specified infirmity of body or mind of exercising the functions of a police officer caused by the member being hurt on duty when a member of the police force, or who has resigned or retired and who had such an infirmity at the time of his or her resignation or retirement:
"10 Superannuation allowance where member hurt on duty
(1) In this section:
attributed salary of office means:
(a) in relation to a member of the police force who is discharged - the member's attributed salary of office at the date of the member's discharge, or
(b) in relation to a former member of the police force who resigned or retired - the member's attributed salary of office at the date of the member's resignation or retirement.
disabled member of the police force means:
(a) a member of the police force who is discharged after being certified, pursuant to section 10B(1), to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990, or
(b) a former member of the police force who resigned or retired and who, according to a certificate given pursuant to section 10B(2) at any time after the member's resignation or retirement, was incapable, from an infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990 at the time of the member's resignation or retirement,
that infirmity being determined, pursuant to section 10B(3) or on appeal, to have been 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.
retired includes discharged as referred to in section 7 or 14.
(1A) Subject to this section, the annual superannuation allowance for a disabled member of the police force is:
(a) an amount that is equal to 72.75 per cent of the member's attributed salary of office,
(b) except where paragraph (c) applies, an additional amount that is:
(i) not more than 12.25 per cent of the member's attributed salary of office, and
(ii) commensurate, in the opinion of STC, with the member's incapacity for work outside the police force, and
(c) if the disabled member is totally incapacitated for work outside the police force and, in the opinion of STC, the member was hurt on duty because the member was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment, an additional amount that is:
(i) not less than 12.25 per cent and not more than 27.25 per cent of the member's attributed salary of office, and
(ii) commensurate, in the opinion of STC, with the risks to which the member was so required to be exposed,
multiplied by the equivalent service ratio of the member as at the date of the member's discharge, resignation or retirement.
(1AA) …
(1B) An annual superannuation allowance may be granted under this section to a disabled member of the police force whatever the member's length of service.
(1BA) A superannuation allowance referred to in subsection (1A) or an additional amount of a superannuation allowance referred to in subsection (1D) is not payable to a disabled member of the police force unless an application for payment of the allowance or additional amount concerned is made:
(a) before the member reaches the age of 60 years, or
(b) not later than 5 years after the member resigns or retires,
whichever is the later.
(1C) …
(1D) STC may:
(a) make a determination at any time of an additional amount of a superannuation allowance under this section, and
(b) vary any such determination at any time,
and may direct that the determination or variation take effect from such date as STC considers appropriate.
(2) …
(3) …
(4)-(7) (Repealed)"
Relevantly, ss 10(1), 10(1A), 10(1B) and 10B were introduced by the Police Regulation (Superannuation and Appeals) Amendment Act 1979 (NSW). Prior to their commencement, members of the police force who were hurt on duty were entitled to a superannuation allowance not exceeding 72.75 per cent of the member's salary of office.
As can be seen, s 10(1A)(a) is more generous than s 7 in that it provides in effect that, where a member is caused to resign, retire or be discharged from the police force by being rendered incapable of exercising the functions of a police officer from an infirmity of body or mind caused by the member being hurt on duty when a member of the police force, the superannuation allowance payable to the member is the full 72.75 per cent of attributed salary regardless of years of service. In substance, s 10(1A)(a) equates the superannuation allowance payable to such a member with the superannuation allowance which would have been payable to the member if, but for the infirmity suffered as a result of being hurt on duty, the member had gone on to complete 30 years' full-time service and retired on or after reaching the age of 60.
Further, in contrast to s 7 - which does not provide for any "additional amount" for incapacity for employment outside the police force - s 10(1A)(b) provides in substance that, except where s 10(1A)(c) applies, the annual superannuation allowance payable to a member who is caused to resign, retire or be discharged from the police force by being rendered incapable of exercising the functions of a police officer from an infirmity of body or mind caused by the member being hurt on duty when a member of the police force includes an "additional amount" of up to 12.25 per cent of attributed salary commensurate with the member's incapacity for work outside the police force.
Section 10(1A)(c) applies where a member is rendered incapable of exercising the functions of a police officer by reason of an infirmity of body or mind caused by being hurt on duty when a member of the police force and is totally incapacitated for work outside the police force. It provides that the annual superannuation allowance payable to the member includes by way of an "additional amount" not less than 12.25 per cent of attributed salary, and, if the member is so hurt on duty because of being exposed to abnormal risks, up to 27.25 per cent of attributed salary commensurate with the risks to which the member was so exposed.
Section 10B provides that an annual superannuation allowance must not be granted under s 10 to a member of the police force who is discharged or resigns or retires unless STC has certified the member incapable from a specified infirmity of body or mind of personally exercising the functions of a police officer, and, in the case of a member who resigns or retires, unless the member notifies the Commissioner of Police before resignation or retirement and within six months of receiving the injury which has caused the infirmity of that injury. It further requires the Commissioner of Police to make a determination of whether the certified infirmity was caused by the member being hurt on duty when a member of the police force:
"10B Medical examination of disabled member and determination of whether hurt on duty
(1) An annual superannuation allowance or gratuity must 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 personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990.
(2) An annual superannuation allowance or gratuity must 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, and
(b) if the regulations so require, the notification was in the prescribed form, and
(c) 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 personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990 at the time of the member's resignation or retirement.
(2A) For the purposes of determining a member's or former member's incapacity under this section:
(a) STC is not to have regard to the member's or former member's actual rank or position or any functions (other than the functions referred to in subsection (2)(c)) of the member or former member at the time to which the certification relates, and
(b) the capacity to exercise a function by delegation is not taken to be a capacity to personally exercise the function.
(2B), (2BA) (Repealed)
(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."
Facts
On 28 August 2003, Mr Miles, the respondent in these proceedings, was certified pursuant to s 10B(1) of the Act as being incapable, from four specified infirmities of an orthopaedic nature, of discharging the duties of his office as a police officer. The specified infirmities were: (a) cervical spine, symptomatic degenerative changes; (b) lumbar spine, symptomatic degenerative changes; (c) left shoulder, recurrent dislocation; and (d) right knee, symptomatic chondromalacia. On 4 September 2003, a delegate of the Commissioner of Police certified, pursuant to s 10B(3)(a) of the Act, that those infirmities were caused by Mr Miles being hurt on duty and he was medically discharged from the police force on 5 September 2003. In accordance with s 10(1A)(a) of the Act, Mr Miles was entitled to, and received, a superannuation allowance equal to 72.75 per cent of his attributed salary of office.
In the course of the ensuing years, Mr Miles made several applications to increase his annual superannuation allowance. In 2004, Mr Miles applied pursuant to s 10(1A)(b) of the Act to increase his annual superannuation allowance to 85 per cent of his attributed salary. The allowance was ultimately determined to be 82.55 per cent by the District Court of New South Wales, following an appeal by Mr Miles from the determination made by STC, the appellant in these proceedings.
In 2008 Mr Miles applied to STC to amend the original certificate issued by the Commissioner of Police to include an additional infirmity of post-traumatic stress disorder ("PTSD"). STC rejected that application on 29 October 2008.
Mr Miles made a further application in 2009 to amend his s 10B(1) certificate to include PTSD, contending that at the time the original certificate was issued he was unaware that he had a psychiatric condition. STC also rejected that application and Mr Miles unsuccessfully appealed STC's decision to the Industrial Court of New South Wales and then to the Full Bench of the Industrial Court.
On 12 November 2013, Mr Miles made a further application pursuant to s 10(1A)(b) of the Act for an increase in his superannuation allowance to 85 per cent. On 29 January 2015, STC rejected that application. Mr Miles commenced an application in the District Court of New South Wales as a person aggrieved by STC's decision. On 11 April 2016, Judge Neilson confirmed STC's decision on the basis that, notwithstanding that the PTSD had increased Mr Miles' incapacity for work outside the police force, on the proper construction of s 10(1A)(b)(ii) Mr Miles' PTSD could not be taken into account as it was a supervening incapacity and not one arising from the four specified infirmities certified by STC.
Constructional choice
As was observed at the outset, s 10(1A)(b)(ii) permits of a constructional choice. On one view of its terms, it provides for an "additional amount" of annual superannuation allowance for a "disabled member of the police force" who is incapacitated for work outside the police force regardless of the cause of the member's incapacity for work outside the police force. The alternative view is that it provides for an "additional amount" of annual superannuation allowance for a "disabled member of the police force" who is incapacitated for work outside the police force only if the incapacity for work outside the police force results from a specified infirmity of body or mind determined, in accordance with s 10B, to have been caused by the member having been hurt on duty when a member of the police force.
The appellant contended for the latter construction, arguing that the incapacity referred to in s 10(1A)(b)(ii) is, like the incapacity referred to in s 10B, an incapacity arising from a certified infirmity caused by being hurt on duty. It was acknowledged that ss 10(1A)(b) and 10(1D) recognise that incapacity from a "hurt on duty" infirmity may increase in extent, but the appellant submitted that those provisions do not permit new and unrelated infirmities to be taken into account in s 10(1A)(b)(ii).
The respondent contended that s 10(1A) is merely a quantification provision. It followed, in the respondent's submission, that, once a member has satisfied the steps in s 10B and thereby met the definition of a "disabled member of the police force", the incapacity referred to in s 10(1A)(b)(ii) (and, too, the total incapacity referred to in s 10(1A)(c)) may arise at any time and from any source. So much is apparent, it was said, in the deliberate change of language between, on the one hand, the reference to "incapacity for work outside the police force" in s 10(1A)(b)(ii) and, on the other hand, the reference to "incapable … of personally exercising the functions of a police officer" in the s 10(1) definition of "disabled member of the police force" and in ss 10B(1) and 10B(2)(c). According to the respondent, that context rebuts any same-word presumption of the meaning of incapacity in s 10(1A) compared with ss 10(1) and 10B.
The proper construction of s 10(1A)(b)(ii)
The starting point for ascertainment of the meaning of a statutory provision is, of course, the text of the provision considered in light of its context and purpose. Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies. The majority of the Court of Appeal held that there was no reason to restrict s 10(1A)(b)(ii) to incapacity for work outside the police force caused by the member having been hurt on duty when a member of the police force. But, with respect, there are in fact a number of textual and contextual indications in ss 7, 10(1A)(b)(ii), 10(1A)(c) and 10B that the operation of s 10(1A)(b)(ii) is so limited.
Beginning with s 7, although a member of the police force who is rendered incapable of exercising the functions of a police officer from an infirmity of body or mind caused otherwise than by being hurt on duty is entitled to a superannuation allowance proportionate to the member's number of years of service, such a member is not entitled to any "additional amount" in respect of the member's incapacity for work outside the police force. That suggests, or at least is consistent with, a legislative intent that there should be no annual superannuation allowance paid in respect of incapacity for work outside the police force not caused by being hurt on duty. Admittedly, as the majority of the Court of Appeal reasoned, s 7 is not in itself inconsistent with a legislative intent that a member who is rendered incapable of discharging the functions of a police officer by reason of an infirmity of body or mind caused by being hurt on duty should be paid an additional amount in respect of any incapacity for work outside the police force caused by something else. But it is significant that there are no explicit or implicit indications in s 7 that such a result was intended.
Going next to s 10(1A)(b)(ii), as has been seen, "disabled member of the police force" is defined in s 10(1) as a member who has been certified incapable of personally exercising the functions of a police officer from a specified infirmity caused by being hurt on duty. In the absence of contrary legislative indication, the natural and ordinary linguistic implication of the use in s 10(1A)(b) of the cognate expression "incapacity for work outside the police force" is that it imports the same idea of incapacity: scil incapacity from a specified infirmity caused by the member being hurt on duty. Certainly, as the respondent submitted, the definition of "disabled member of the police force" refers to incapacity in respect of police work while the expression in s 10(1A)(b)(ii) is descriptive of incapacity in respect of work outside it. But given the use of cognate expressions within the one section, it is reasonable to suppose that, if a different meaning of incapacity had been intended in the latter context, it would have been specified. Taken with the matters mentioned in what follows, that points towards the construction of s 10(1A)(b)(ii) urged by the appellant.
Turning next to s 10(1A)(c), the statutory exclusion of s 10(1A)(b) where s 10(1A)(c) applies, and vice versa, conveys that "incapacitated" in the expression "totally incapacitated for work outside the police force" in s 10(1A)(c) has the same meaning as "incapacity" in the expression "incapacity for work outside the police force" in s 10(1A)(b)(ii).
Contrary to the respondent's submissions, it is also apparent that "incapacitated for work outside the police force" in s 10(1A)(c) must mean incapacitated for work outside the police force from the specified infirmity of body or mind which rendered the member incapable of exercising the functions of a police officer and which was caused by being hurt on duty. That is implicit in the requirement in s 10(1A)(c)(ii) that the additional amount of between 12.25 and 27.25 per cent of attributed salary payable under s 10(1A)(c)(i) in respect of the disabled member's incapacity for work outside the police force be commensurate with the abnormality of the risks to which the member was exposed. As the chapeau to s 10(1A)(c) makes clear, the risks are those that cause the member to be hurt on duty. The provision thereby draws a clear link between the additional amount payable and the event of the member being hurt on duty.
Moreover, despite the respondent's suggestion that the provision should perhaps be seen as the result of political compromise of which the aims are inscrutable, it is inherently unlikely that the legislative purpose of s 10(1A)(c) is to provide for additional amounts by reference to risks that played no role in rendering the member incapable of work outside the police force. The idea of a legislative intent to provide for an additional amount of up to 15 per cent of attributed salary for risks to which a member was exposed but which did not contribute to the member's incapacity for work outside the police force not only is arbitrary but significantly ill-accords with the absence of any "additional amount" benefits from the benefits for which s 7 provides where a member is hurt outside the course of duty. By contrast, the likelihood of a legislative intent to provide for an additional amount of up to 15 per cent of attributed salary for risks so grave as to result in an injury when on duty which renders a member both incapable of discharging the functions of a police officer and totally incapacitated for work outside the police force appears compelling.
Given that "incapacity" in the expression "incapacity for work outside the police force" in s 10(1A)(b)(ii) appears to have the same meaning as "incapacitated" in the expression "totally incapacitated for work outside the police force" in s 10(1A)(c), s 10(1A)(c) thus provides strong support for the conclusion that "incapacity" in s 10(1A)(b)(ii) means, as it does in the cognate term in s 10(1A)(c), incapacitated for work outside the police force from the specified infirmity of body or mind which rendered the member incapable of exercising the functions of a police officer and which was caused by being hurt on duty.
The likelihood of that being so is in turn further fortified by the fact that, perforce of s 10B(2), no annual superannuation allowance is payable under s 10 to a member who resigns or retires by reason of being rendered incapable of exercising the functions of a police officer from a specified infirmity caused by being hurt on duty, unless the member notifies the Commissioner of Police of the injury before resigning or retiring and within six months of receiving the injury which caused that specified infirmity. The purpose of the notification is to allow the Commissioner of Police to investigate the injury for the purpose of making a "hurt on duty" determination under s 10B(3). If s 10 contemplated the payment of an additional amount for incapacity for work outside the police force arising from an infirmity other than the specified infirmity of body or mind caused by being hurt on duty, it is to be expected that the Act would have provided for similar temporal limits for notification of that other infirmity. Otherwise, s 10 would have the unlikely consequence that, although the Act sets strict time limits for the notification of the injury claimed to have rendered a member who resigns or retires incapable of exercising the functions of a police officer, and conditions the payment of annual superannuation allowances on compliance, a member could delay for an indefinite period of time before notifying the Commissioner of Police or STC of an injury not caused by being hurt on duty that is claimed to render the member who resigns or retires incapable of work outside the police force.
The majority of the Court of Appeal observed, and the respondent emphasised, that s 10(1BA) permits a disabled member to make an application for payment of the annual superannuation allowance or additional amount before the member reaches the age of 60 years or up to five years after the member resigns or retires, whichever is later, and s 10(1D) empowers STC to make and vary a determination of an additional amount "at any time". But contrary to the reasoning of the majority of the Court of Appeal, and the respondent's submissions, that does not imply that a member may notify STC at any time up to the age of 60 years or five years after resigning or retiring of an infirmity caused otherwise than by being hurt on duty that is claimed to render the member incapable of work outside the police force. Those sub-sections do not undercut the notification requirements in s 10B(2). Rather, it appears from the way in which s 10(1BA) groups the application time limits for superannuation allowance with the application time limits for additional amounts, and seemingly treats them as one, that the only class of injury contemplated by s 10(1BA) is injury sustained in the course of duty which results in an infirmity rendering the member incapable of exercising the functions of a police officer. Hence, as it appears, s 10(1D) is limited to dealing with the possibility of that specified infirmity so developing over time as either to cause or to exacerbate the member's incapacity for work outside the police force.
Taking those considerations together conveys that the preferable view of s 10(1A)(b)(ii) is that, like s 10(1A)(c), it contemplates only one kind of incapacity for work outside the police force, being incapacity the result of the specified infirmity of body or mind determined to have been caused by the member being hurt on duty when a member of the police force.
Lembcke v SAS Trustee Corporation
In Lembcke v SAS Trustee Corporation, the Court of Appeal of the Supreme Court of New South Wales rejected an argument that the "additional amount" payable under s 10(1A)(b)(ii) was subject to an implicit limitation that a disabled member receiving a superannuation allowance under s 10(1A) as well as earnings outside of the police force should not be better off than he or she would have been on his or her pre-disablement salary. The argument was in effect that s 10(1A) should be conceived of as having a hybrid character comprised of a purely superannuate automatic entitlement to 72.75 per cent and a further compensatory element for incapacity for work outside the police force of up to 12.25 per cent. Santow JA held that, regardless of its proper characterisation, s 10(1A) required no more than a consideration of what additional amount, in the opinion of STC, is commensurate, in the sense of proportionate, with the member's incapacity for work outside the police force. Meagher JA observed in a similar vein that the "section requires … one question, and one question only, what is the applicant's incapacity for work outside the police force?" Ipp JA held that s 10(1A) was plainly not compensatory and therefore the idea of an implied limitation fell away.
In this case, Sackville A-JA invoked Lembcke as support for the idea that the construction of s 10(1A) for which the respondent contended should not be rejected simply because it produces what might be thought to be anomalous results. Likewise, in submissions before this Court, the respondent invoked Lembcke in support of his submission that the construction of s 10(1A) for which he contended is consistent with the superannuate nature of a fund into which members pay contributions to ensure that if they are "hurt on duty" and in consequence lose their careers in the police force, they are thereafter provided for with superannuation benefits at a level commensurate with their ability to work outside the police force.
Apart from making clear, however, that s 10(1A) is to be construed in accordance with its terms rather than according to preconceptions about underlying policy, Lembcke really takes the matter no further. Plainly enough, s 10(1A) provides for benefits commensurate with the extent to which a member is incapacitated for work outside the police force. But the question remains whether, upon its proper construction, s 10(1A) confines those benefits to incapacity for work outside the police force the result of an infirmity caused by injury sustained in the course of duty. And for the reasons given, it should be concluded that it does.
Legislative history and extrinsic materials
Finally, although it is not a strong point, that construction of s 10(1A) appears consistent with the legislative history of the Act and the extrinsic materials. As has been discussed, ss 10(1), 10(1A) and 10B of the Act were introduced by amendment in 1979 to replace provisions which allowed for a maximum pension of 72.75 per cent of salary in office. The purpose of the amendment was stated in the Second Reading Speech in the lower house thus:
"The main changes will be to bring benefits to Police in line with those under the Workers' Compensation Act which has been used to determine the level of lump sum benefits for the loss of a limb, the loss of an eye, etc, and also in the event of death.
Pensions on discharge due to injury may be increased from 72.75 per cent of salary to 85 per cent provided such increase does not exceed the amount that would have been paid as a weekly allowance had the Workers' Compensation Act applied.
The Police Superannuation Board is to be increased to include the Registrar of the Workers' [C]ompensation Commission and this will be the body to determine the amount of pension to be paid and will take into consideration the nature of the wound or injury and the ability of the officer to earn on the open labour market, and any other relevant factors. The 85 per cent of salary will be paid where the injured officer is totally incapacitated for all work as distinct from Police duties. Cabinet also decided that in special circumstances more than 85 per cent, but never exceeding 100 per cent, of salary could be paid if in the opinion of the Commissioner the injury which resulted in total incapacity was received in circumstances which exposed the officer to exceptional risks." (emphasis added)
It was further stated that:
"The bill would provide a statutory minimum superannuation allowance of 72.75 per cent of salary. A member of the police force whose disability also causes incapacity for work outside the police force would be paid an amount in addition to the disablement allowance. The additional amount would not exceed 12.25 per cent of the salary of office and be commensurate with the extent of incapacity. In such cases the maximum annual allowance would therefore be 85 per cent of salary. However, in cases of total incapacity associated with exposure to exceptional risk, the additional amount would be no less than 12.25 per cent and no more than 27.25 per cent - the maximum allowance being therefore 100 per cent of salary. The result would be that hurt-on-duty pensions could reflect the degree of incapacity suffered and also any exceptional risk undertaken." (emphasis added)
It is to be observed that the latter emphasised observations were directed to s 10(1A)(c) rather than s 10(1A)(b), but the fact that s 10(1A)(c) was intended to have the effect there stated is consistent with s 10(1A)(b) operating as the appellant contended.
In the Court of Appeal, Sackville A-JA pointed to the following part of the Second Reading Speech as supporting the contrary conclusion:
"Careful consideration has been given to the time from which the new hurt-on-duty benefits should operate. The conclusion reached is that the only way of ensuring equity in this matter is to provide that the new benefits apply only in respect of injuries received after the commencement of the hurt-on-duty provisions of the bill. However, the benefits would apply to a member of the police force who is hurt on duty after the commencement of these provisions but who does not suffer infirmity until he has left the police force."
With respect, however, that statement is apt to refer to a situation where the infirmity is caused from being hurt on duty but does not manifest until a later point. It does not suggest that s 10(1A)(b)(ii) should be construed otherwise than as the appellant contended.
Medical examinations
Finally, counsel for the respondent drew attention to the fact that, although s 10B makes explicit provision for STC to have regard to medical advice before certifying a member incapable from a specified infirmity caused by being hurt on duty of exercising the functions of a police officer, the Act makes no explicit provision for STC to have regard to medical advice when determining whether a member is incapacitated or totally incapacitated for work outside the police force. In counsel's submission, that difference is unsurprising and not inconsistent with the construction of s 10(1A)(b) for which he contended. Once a member is certified incapable of exercising the functions of a police officer, the member is granted an annual superannuation allowance and, if the member thereafter applies for a variation of the allowance, STC would have power as part of its power to do "all things that are necessary or convenient to be done for, or in connection with, the exercise of STC's functions" to insist upon medical examination as a condition of its consideration of the application for variation, and to engage medical advisors as appropriate.
So much may be accepted. But none of that does anything to lessen the force of the considerations already identified that point in favour of the conclusion that the only incapacity with which s 10(1A)(b)(ii) is concerned is incapacity from a specified infirmity of body or mind caused by a member being hurt on duty when a member of the police force. Granted, once a member has been certified under s 10B as incapable of exercising the functions of a police officer, an annual superannuation allowance becomes payable and any application thereafter for a variation of amount will entail a separate consideration. But it remains that what is to be considered is the effect on the member of the infirmity which rendered the member incapable of exercising the functions of a police officer.
Conclusion and orders
In the result, it should be held that, upon the proper construction of s 10(1A)(b) of the Act, the expression "member's incapacity for work outside the police force" means the member's incapacity from a specified infirmity of body or mind determined pursuant to s 10B or on appeal to have been caused by the member being hurt on duty when he or she was a member of the police force. The appeal should be allowed. Orders 1 and 2 of the Court of Appeal of the Supreme Court of New South Wales made on 4 May 2017 should be set aside and in their place it should be ordered that the appeal to the Court of Appeal be dismissed. The appellant is to pay the respondent's costs of the appeal to this Court.