Stanley v SAS Trustee Corporation

Industrial Relations Commission (NSW)|2009-05-26|Before: Marks J, Mr P

CITATION: Stanley v SAS Trustee Corporation [2009] NSWIRComm 96

PARTIES: Anthony Stanley (Appellant) SAS Trustee Corporation (Respondent)

CATCHWORDS: APPEAL FROM DECISION OF STC - STC declined to certify appellant was incapable of personally exercising functions of police officer due to injury - appellant seeks an order that he be issued with a certificate of incapacity - appeal instituted out of time - leave granted to extend the time in which proceedings could be instituted - appellant hurt on duty - injury caused difficulty in carrying out police work - resigned from police force - appellant was refused re-employment - medical reports and oral evidence confirm injury - held as at date of resignation appellant incapable of personally exercising the functions of a police officer - certified accordingly

Police Act 1990 s6, s14 LEGISLATION CITED: Police Regulation (Superannuation) Act 1906 s1, s10B Superannuation Administration Act 1996 s88

CASES CITED: Ford, Roger v State Authorities Superannuation Board [1994] NSWIRComm 217 State of New South Wales v Tyszyk [2008] NSWCA 107

Mr P O'Rourke of counsel (Appellant) Solicitor: Oates & Smith, Solicitors LEGAL REPRESENTATIVES: Mr T Ower of counsel (Respondent) Solicitor SAS Trustee Corporation

Application by Anthony Stanley to appeal against the decision of the SAS Trustee Corporation given on 12.2.2008

1 This is an appeal brought by the appellant, Anthony Stanley, from a decision of an STC disputes committee of the respondent, SAS Trustee Corporation, to decline to certify that he was incapable from a particular injury of personally exercising the functions of a police officer as of the date of his resignation from the New South Wales Police Force on 20 June 1989. The requirement to obtain such certification is a step that the appellant needs to take in order to apply for and become entitled to an annual superannuation allowance under the Police Regulation (Superannuation) Act 1906. S 10B of that Act is in the following terms: 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. 2 An appeal lies to this Court from a determination made by the STC by reason of s 88 of the Superannuation Administration Act 1996. The appeal proceeds as an appeal hearing de novo. 3 S 88 of the Superannuation Administration Act is in the following terms: 88 Appeals

(1) A person aggrieved by a determination of STC or an STC disputes committee 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 appellant is notified of the determination 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 or the STC disputes committee, as the case may be, 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. 4 These appeal proceedings are constituted by an amended appeal document. The appellant seeks an order that he be issued with a certificate of incapacity "specifying the infirmities of the right knee injury including right medial meniscectomy and post-traumatic right knee osteoarthritis" which were said to result in incapability of personally exercising the functions of a police officer as referred to in s 14(1) of the Police Act 1990. 5 I should add for completeness that the appeal was instituted out of time and it was necessary for the appellant to seek the leave of the Court to extend the time for filing the appeal. The time had expired on 15 August 2008. The appeal was instituted on 12 September 2008. For reasons that I gave during the course of the proceedings, I granted leave to the appellant to extend the time in which the appeal could be instituted and the matter proceeded accordingly. The factual background

6 The appellant and a number of other persons gave oral evidence in the proceedings. In addition, a number of medical certificates and other documents were tendered into evidence. 7 The appellant is aged 53. He became a police officer on 9 November 1974. He was promoted to the rank of senior constable in November 1983. He served in a number of different locations and became a detective in December 1980. He served as a detective in various roles. More latterly in his career, he served between 1984 and 1986 as a detective at the Darlinghurst and Waverley Police Stations, between 1986 and 1988 in the Drug Law Enforcement Bureau and between 1988 and 1989 undertaking undercover and surveillance work. 8 The appellant first suffered a significant injury on 27 September 1980. He became involved in a brawl whilst attending a hotel in Peakhurst. He was kicked on the right side of his right knee and collapsed. He said he went to Sydney Hospital the next morning but continued to work over the next 10 months. His knee remained painful and would lock or collapse if he was going up or down stairs. The appellant said that he consulted orthopaedic surgeon, Dr R M Tooth in 1981. There is a report from Dr Tooth dated 12 May 1994 that contains some information about the appellant's condition. That report said in part: "Mr Anthony Stanley first came under my care in 1981 after he had injured his right knee when he fell in a quarry. A medial meniscectomy was carried out and at the time of operation it was noted that his anterior cruciate ligament was intact but slack. Post operatively he made a reasonably good recovery although he still continued to have some discomfort and catching in the knee and eventually an arthroscopy was carried out in February 1983 but no significant pathology was found. His knee was good then until 1984 when he fell and twisted the knee at work and this was followed by pain and swelling in the knee. A further arthroscopy in October 1984 revealed some damage to the articular surface of the patella but otherwise the rest of the knee was healthy. The patella was shaved. He had a further injury to the knee in November 1987 when the knee gave way stepping out of a witness box and at the time he had no evidence of serious damage but mild chondromalacia patellae. He was given a steroid injection and he states the knee settled down well and has not caused him any trouble since." 9 In the course of his oral evidence, the appellant said that after the initial treatment by Dr Tooth in 1981 and following a period of incapacity caused by an infection, he returned to work on 21 October 1981 on restricted duties performing predominantly office work. He returned to full duties on 7 November 1981 and continued to work as a detective. He said that during this time his knee still gave him problems with pain and swelling and would occasionally lock or collapse while he was travelling on uneven surfaces or running. 10 The appellant gave evidence of specific incidents that occurred on 15 February 1984 and in 1987, the details of which are referred to in Dr Tooth's report, which I have earlier set out. 11 It was the appellant's evidence that throughout the period until the date of his resignation on 23 May 1989, whilst he continued to carry out his police work, it was with difficulty. He said that problems occurred when he was running, travelling over uneven surfaces, required to climb fences and engaging in physical conduct with persons whom he might be arresting or chasing in the course of his duties. Furthermore, surveillance work that he undertook created difficulties for him, particularly if he was required to move quickly in following a person. 12 He said that in about 1988, he was the officer in charge of an undercover surveillance unit and was forced to rely on other persons within his group to undertake physical work which otherwise he would have been unable to attend to because of his continuing problems with his right knee. He gave evidence of a number of instances where he was either conducting surveillance operations or required to forcibly enter premises or arrest persons where he encountered difficulty in doing so because of his right knee and if it were not for the assistance of others within his team, offenders may have escaped arrest. 13 He also said that he had difficulty in kneeling on his right leg, nor could he crouch on his right leg. 14 The appellant said that over time he became concerned about his inability to participate fully in the activities of his unit and felt concerned about the need to rely on others. At the same time, he became concerned about various aspects of the police force and his work within it. He said that by May 1989, he had decided to retire and wrote a resignation letter dated 23 May 1989 tendering his resignation effective on 20 June 1989. In that letter, the appellant gave no reason for his resignation. 15 In the course of his evidence, the appellant said that there were a number of reasons why he wished to resign. These were that he was disgruntled with his work, he was disappointed with certain aspects of the police hierarchy, he considered himself in a dead-end job and the condition of his right knee meant that he was unable to perform all of his duties and was required to rely on others. 16 At the time, the appellant's condition was accepted by the Commissioner of Police as being "hurt on duty." 17 The appellant gave evidence as to why he did not pursue any superannuation entitlements at that time. He said that a stigma attached to anyone who retired from the police force on a pension and that as a matter of pride it wasn't done.

18 At a Christmas function in 1988, Allan White, a former detective sergeant with the New South Wales Police Force, recollected a conversation with the appellant at which he complained about the condition of his right knee, always being in pain and referred to the fact that hurt on duty allowances were for "soft cops". 19 Robert Irwin worked with the appellant between 1983 and 1987. He confirmed that the appellant always put himself in the position which accommodated his right knee condition, whether in having to chase someone or in the way in which he had physical contact with someone that he was seeking to restrain. Mr Irwin said that it was well known that the appellant had "a crook leg" and that he was "not a runner". The appellant was given the nickname "Gumpy" or "Gimp" because of his inability to run, chase or wrestle. 20 The appellant's wife also gave evidence that confirmed his account of a continuing sore right knee, and corroborated the appellant's evidence that he would continually be required, after a day's work, to elevate his leg and apply ice. 21 The appellant said that after he left the police force, he obtained work as a private enquiry agent which involved taking statements from witnesses and investigating insurance claims. During the period 1989 to 1992, the symptoms with his right knee "levelled off". He encountered no problems with his leg collapsing because he no longer undertook physical work associated with that of a police officer. He continued to play golf on a regular basis. 22 By the end of 1992, there was less investigation work and he decided to reapply to become a police officer. It was his wife's evidence that this was at her urging. On 5 November 1992, he completed a medical history declaration. He made reference to his right knee operations as a result of a "HOD" in 1980 and said that his current condition was "good". On 11 July 1994, he undertook a "pre-employment physical test battery" and was recorded as having completed a physical ability test in an overall time of four minutes which included running 320 metres, climbing timber and paling fences and a brick wall, crawling through a concrete pipe, dragging a person for a distance and other nominated physical tests. A record of the Police Recruitment Branch indicates that he passed that test. 23 The appellant said that after he had undertaken the physical test in association with his application for re-employment with the New South Wales Police Force, he found that by the time he had come home that night, there was swelling in his right knee and he was unsteady on it. He took painkillers and used ice. After a day or two, it returned to what he described as "normal". This experience confirmed in his mind that he could not go back to policing work. 24 On 16 August 1994, the appellant was advised that he would not be offered re-employment by the Police Service, although no particular reason was given. 25 In 1994, he worked as a team leader supervising others joining telephone cables, but also occasionally doing the work himself. For about a year to 18 months, the appellant worked on a recycling truck for a friend for about three hours a day on a five-day a week basis during the period 1994/5. This required him to get out of and get into an elevated cabin, which he was able to do. Between 1998 and 2001, the appellant continued performing work as a supervisor of persons joining telephone and optical fibre cables. From 2001 to the present day, he has been employed by the Office of Fair Trading as an investigator. The medical evidence

26 The appellant's principal treating general practitioner was Dr John F Davis and his treating specialist was Dr R M Tooth. I have previously referred to a report of Dr Tooth dated 12 May 1994 and I shall return to this report later. 27 Dr Tooth issued a report on 19 February 1987. It was addressed to Dr Davis and thanked him for referring the appellant to him. That report indicated that following the arthroscopy in 1984, the appellant's knee "had been quite good until the last 12 months or so, when he noticed increasing discomfort, mainly laterally and after activity such as golf or stairs." Dr Tooth could find no effusion in the joint and said that there was a full range of movement. He noted localised tenderness "over the superior tibio-fibular joint rather than the knee joint itself, although there was some discomfort around the patella." Dr Tooth injected that joint with local anaesthetic and cortisone which he hoped would give lasting relief. 28 Dr Davis reviewed the appellant on 26 July 2005 and issued a report to his solicitors dated 4 August 2005. After relaying the history which he had taken and conducting an examination, Dr Davis, in commenting on the appellant's condition, made some observations about his condition. He said: "The absence of a meniscus on the medial compartment has resulted in an onset of degenerative osteoarthritic changes and he also developed patellofemoral chondromalacia as a result of the trauma and subsequent abnormal gait, abnormal tracking of the patella and biomechanical changes. Despite his procedures he continued to suffer with variable symptoms over the years including intermittent swelling of the knee. Despite his considerable motivation in attempting to continue to undertake normal unrestricted duties until 17 July 1989 with the NSW Police Force, such motivation was indeed inappropriate and possibly quite dangerous by placing himself and his co-workers at risk due to the possibility of his knee giving way and his restriction with regards to mobility and other activities. In my opinion he is permanently unfit for unrestricted duties as a police officer and based on a reasonable degree of medical certainty this was clearly the case at the time of his resignation on 17 July 1989." 29 Dr Mario Benanzio, an orthopaedic surgeon, was qualified by the appellant's solicitors to examine the appellant and provide a report for medico legal purposes. In the course of his report, Dr Benanzio commented that: "We know that after this type of accident (a reference to the incident which occurred in 1980) and procedure a significant percentage of patients experience persistent symptoms, and this appears to be the case with this patient." 30 A similar opinion was expressed by Dr James Scougall, an orthopaedic surgeon who was also qualified to give evidence by the appellant's solicitors. He examined the appellant on 24 February 2009 and furnished a report of the same date. 31 After referring to a number of medical reports which had been furnished to him, and after obtaining a history and conducting an examination, Dr Scougall expressed the opinion that the appellant was unfit to carry out the work of a police officer on 17 July 1989. 32 Under normal circumstances, one would approach an opinion of this kind about a state of affairs some 20 years prior after a single examination with some scepticism. However, Dr Scougall gave oral evidence and was cross-examined. I have found his evidence of assistance in evaluating the appellant's case in that he explained that the appellant's symptoms such as locking of the knee, swelling, pain etc, are consistent with the pathology of the knee which would have been present as at 1989. As I understand the evidence of Dr Scougall, it was to the effect that the difficulties which the appellant described at the time of his resignation in 1989 in terms of running, walking over uneven surfaces, climbing steps and the like, presented a picture that was consistent with the appellant's medical condition. 33 I now return to the report of Dr Tooth of 12 May 1994. In that report, Dr Tooth noted a history given to him by the appellant that after leaving the police force in May 1989 and whilst working in private investigation work and driving a recycling truck, the appellant's knee did not "worry him and he plays golf once or twice a week." Dr Tooth was unable to elicit anything that appeared to be of major concern on examination other than "mild anterior cruciate laxity" which he noted was "not much different to the left knee." 34 Dr Tooth expressed the following opinion: "At the present time he appears to have very little trouble with his knee either subjectively or objectively. There is no evidence of degenerative change although having undergone previous meniscectomy there is a slightly increased risk of such changes occurring in later years. At the present time I see no reason why he would not be fit to do normal police duties." 35 It was this report that, coupled with some other material to which I will refer, was emphasised by the respondent in resisting the appeal. On its face, the report of Dr Tooth seems to indicate that at least in May 1994, some five years after resignation, the appellant was fit to undertake normal policing duties. It was the respondent's contention that if he were so fit in May 1994, he would have equally been fit in 1989 at the time of his resignation. 36 There are a number of responses made by the appellant to Dr Tooth's report. Firstly, it was said that the appellant's symptomotology was, as he himself conceded, much improved as at 1994. This was because he had not been undertaking the rigorous activities associated with his work in the police force including running, walking over uneven surfaces, walking up steps, wrestling with persons under arrest and the like. Secondly, the report of Dr Tooth is addressed to Chief Inspector R White of the New South Wales Police Department. It accompanied a letter to Mr Stanley from Chief Inspector White in connection with his application to rejoin the New South Wales Police Service. That letter referred to the appellant's disclosure that he had had an operation to his right knee and said that it would be necessary for the appellant to obtain a report from an orthopaedic specialist, in support of his application for reemployment. In my opinion, it is appropriate to infer that the report of Dr Tooth was written specifically for that purpose, that is in aid of an application for reemployment as at May 1994. As Dr Scougall pointed out while giving evidence, it should not necessarily be viewed in the same way as one would read a medical report created specifically for the purpose of the expression of an opinion about some other matter, such as fitness for work as at June 1989. 37 Finally, I refer to a report of Dr Myles Coolican, an orthopaedic surgeon retained by the respondent dated 2 August 2006. Dr Coolican took a history from the appellant, examined him and took into account several reports made available to him from Dr Tooth. He said that it was not possible to give a definite answer to the question of whether the appellant was incapable of carrying out his duties when he resigned from the police force in 1989 without examining him at that point in time. However, he relied upon the opinion of Dr Tooth that the appellant was fit for work as a police officer as at 12 May 1994. As the appellant's condition was a degenerative one which would worsen over time, it followed in the opinion of Dr Coolican that if the appellant was fit for work as a police officer in May 1994, he must have been fit for that work in June 1989. 38 I accept that whilst Dr Coolican's opinion has a logical basis, it assumes a certain state of affairs as at 1994 and deduces that they must have been worse than that which occurred in 1989. However, there is expert medical evidence that would point to the opposite conclusion based upon the pathology that one might assume existed in 1989 and based also on the symptoms about which the appellant complained in 1989. 39 Having regard to the opinions expressed in the reports of Drs Scougall, Davis and, to a limited extent, Benanzio, and the reasoning adopted by Drs Scougall and Davis, I prefer their opinion to that expressed by Dr Coolican. It is clear from all of the evidence, especially the reports of Dr Tooth, that the appellant did suffer a significant injury to his right knee which under normal circumstances would continue to cause him trouble. I accept the appellant's complaints that those troubles were associated with certain work related activities only and not with normal everyday activities. A specified infirmity of body

40 It is necessary to consider what is comprehended by the use of the word "infirmity". I repeat what I have previously said in Ford, Roger v State Authorities Superannuation Board [1994] NSWIRComm 217. At page 14 I said: "Dictionary definitions are not particularly helpful. They import connotations of frailty, weakness, feebleness. As is true in many circumstances, examples which are obvious are rarely called upon for judicial comment. However, it is the difficult cases which almost always give rise to litigation. The meaning of infirmity was considered by Thomas J in the Supreme Court of Queensland in Rockley Boothroyd v The State Service Superannuation Board (Appeal No. 45 of 1985) in a decision which I am led to believe is unreported delivered on 16 September, 1985. I am indebted to Mr Tabuteau of Counsel for having located that decision. The expression which was considered by his Honour in that case was "any mental or bodily infirmity by reason whereof an officer is unfit to discharge or incapable of discharging the duties of his office efficiently". His Honour said that:- 'The operative word "infirmity" is wider than the familiar words "disease" and "injury". I have referred to the shorter Oxford English Dictionary and to several Medical Dictionaries but I do not think it necessary to quote them in order to support that proposition. It is a word of common usage and wide connotation. Neither the word itself nor the context of the Act require it to be a permanent infirmity. Indeed, s.41 creates its own problems by providing the same test to determine entitlement for a pension on retirement as for a potentially short term incapacity pension. In re Buck (1895) 65 LJ Ch 881 Kekewich J construed the word "infirmity" in the context of the rules of a friendly society referring to "other infirmity which may in the opinion of the committee render him an object deserving the assistance of the society"....' His Lordship commented:- 'As regards infirmity, it means there be some permanent disease accident or something of that kind, to render him an object deserving the assistance of the society. This does not constrain me to introduce a concept of permanence, although it must obviously refer to something durable and not transient. The requirement that the infirmity be such as to make the Applicant unfit to discharge or incapable of discharging the duties of his office efficiently clearly suggests something more than a transient condition....' 41 I note the comments of Lord Kekewich, extracted above, to the effect that it may not be necessary that any particular infirmity have a permanent characteristic. In the circumstances of these proceedings, it is not necessary that I consider this matter further. 42 The appellant seeks an order from this Court that he be issued with a certificate of incapacity specifying the infirmities of "the right knee injury including right medial meniscectomy and post-traumatic right knee osteoarthritis." Of course, a reference to a meniscectomy is a reference to a surgical procedure and not to an infirmity. In my opinion, it is more appropriate to describe the appellant's infirmity as being an impaired right knee consequent upon a right medial meniscectomy procedure coupled with post-traumatic right knee osteoarthritis. The functions of a police officer

43 These are said in s 10B(1) to be those set out in s 14(1) of the Police Act. To some extent the provisions of s 14 of that Act are unhelpful because they refer to "additional functions" of police officers. 44 The parties proceeded that in considering this matter I was not restricted in the same manner as would a judge of a court dealing with ordinary civil or criminal matters. This was because in dealing with this appeal I am entitled to "exercise any function that could have been exercised by STC or the STC disputes committee…in making the determination the subject of the appeal." (s 88(1)(3) of the Superannuation Administration Act 1996.) I proceed, therefore, to determine this matter of having regard to what I understand to be the functions of a police officer in the same way as that understanding would be exercised by any member of the community generally. This was an approach that was acquiesced in by counsel appearing for each of the parties. 45 In having regard to the functions of a police officer, I take into account that whilst many police officers may habitually be engaged in activities of a sedentary or semi-sedentary nature, they may be and are called upon from time to time to undertake strenuous physical activity that would require them to run, scale obstacles, walk over uneven surfaces, ascend and descend steps and physically confront and deal with persons. Indeed, the appellant gave evidence that these types of activities were undertaken by him on a regular basis as part of his work as a detective, being the work that he was engaged in at the time that he resigned. Was the appellant incapable from the specified infirmity of personally exercising the functions of a police officer?

46 It was common ground that this was a matter that had to be determined as at the time of the appellant's resignation, namely 20 June 1989. 47 It was here that the greatest controversy arose between the parties. The appellant said that he was unfit to perform his duties as at the date of resignation. He conceded that he had attempted them but said, on the basis of his evidence, that whilst he could attempt to undertake his duties he was unable to complete them. That is, he was unable to perform all of the duties that were required upon him by completing them. He gave instances of pursuing offenders but being unable to catch them because of the condition of his right knee. He gave examples of avoiding certain activities and ensuring that they were performed by others within his team because he was physically incapable of performing them. The respondent, however, emphasised that although the appellant was unable to undertake each and every one of the duties that he would have wished personally to be able to perform, he was nevertheless performing his duties with minimal time off work. 48 The resolution of this controversy requires an examination of what is meant by the word "incapable" in the sense of exercising certain functions of a police officer. 49 It seems to me that incapability of exercising functions is, according to ordinary English usage, equivalent to incapacity to perform those functions. The two expressions seem to me to be synonymous and can be used interchangeably. Certainly, that is exemplified by the definitions of "incapable" as referred to in the Macquarie Dictionary and the Oxford Dictionary. They are "not capable" (The Macquarie Dictionary) and "Not having the capacity, power, or fitness for a specified function, action, etc; unable." (Oxford English Dictionary Online) 50 I had reason to make observations about the meaning of the expression "incapable of discharging the duties" in Ford, Roger v State Authorities Superannuation Board [1994] NSWIRComm 217. I said: "The words 'incapable of discharging the duties of ..... office' in my opinion equate with the expression 'incapacity for work' an expression which is commonly encountered in Workers' Compensation legislation. See for example s.33 of the New South Wales Workers' Compensation Act 1987. It is a fundamental concept in the practice of Workers' Compensation law that a person is incapacitated for work if he or she cannot undertake the work, in a sense of actually performing it (see for example Arnotts Snack Products Pty Ltd v Yarcob (1985) 57 ALR 229 @ 230) or if the person is unable to attempt work (see for example Ball v William Hunt & Sons Ltd (1912) AC 496)." (At page 18) 51 It will be seen that the extract, which I have set out above, refers to the "duty of office" of a police officer, whereas the reference in these proceedings is to incapability of "personally exercising the functions of a police officer…" 52 I have previously observed that the reference in s 10B(1) to s 14(1) of the Police Act is itself unhelpful. The online Macquarie Dictionary defines "function" as, relevantly, "the kind of action or activity proffered to a person, thing or institution." 53 The online Oxford English Dictionary defines "function", relevantly, as "the kind of action proffered to a person as belonging to a particular class, especially to the holder of any office; hence, the office itself, and employment, profession, calling, trade." 54 In a general sense, it might be said that when considering the functions of a police officer, one is considering the duties performed by a police officer in the exercise of powers vested in him or her. 55 There is a detailed consideration of the functions and responsibilities of police officers both at common law and under statute in the judgment of Campbell JA in the New South Wales Court of Appeal in State of New South Wales v Tyszyk [2008] NSWCA 107. His Honour reviewed the history of the common law office of a constable and discussed police powers and duties both at common law and under statute. 56 There are provisions in the Police Act that define, in s 6, the services to be provided by the Police Service in terms of the exercise of the functions of the Police Service. As Campbell JA noted, there are well-recognised common law duties of a constable of police including preventing and detecting crime, collecting evidence with respect to crime, protecting property from criminal injury, preventing or assisting in preventing disturbances or breaches of the peace and the like. The performance of these duties would, in my opinion, constitute inter alia the functions of a police officer. Accordingly, in this sense, the capability or incapability of a member of the police force of personally exercising the functions of a police officer refer in general terms to the carrying out or performance of duties and powers invested in a police officer at law. I am reinforced in this conclusion by the use of the word "personally" in the context of the exercise of functions of a police officer as referred to in s 10B(1). 57 After I had completed these reasons for judgment, by memorandum dated 12 June 2009, counsel for the appellant and the respondent jointly forwarded to me a copy of s 1 of the Police Regulation (Superannuation) Act. That is a definition section and includes, within sub-section (4), a reference to "function". Sub-section (4) is in the following terms: "(4) In this Act, a reference to: (a) a function includes a reference to a power, authority and duty, and (b) the exercise of a function includes, where the function is a duty, a reference to the performance of the duty." 58 It is not clear whether the reference to "the functions of a police officer" contained with s 10B(2)(c) of that Act may be subject to the meaning assigned to a function included within sub-section (4) of s 1. This is because the reference in 10B(2)(c) is to the functions of a police officer referred to in s 14(1) of the Police Act. It is not necessary, however, for me to determine whether sub-section (4) of s 1 applies because it clearly accommodates the performance of the duty of a police officer within its terms, a conclusion which I had reached independently of any consideration of s 1(4) of that Act. 59 I find, based on my conclusion about the acceptance of the opinions expressed by Drs Scougall, Davis and Benanzio, that as at 20 June 1989, the appellant was unable to undertake and perform all of the functions of a police officer in the sense that whilst he may have been able to attempt the physical activities which were required of him as a normal part of his work as a detective, he was incapable of executing, in the sense of completing, those duties because of the inherent instability in his knee and because of the consequential impact on his knee if he attempted to perform those activities. The activities that he was required to perform as a detective were integral activities recognised as constituting the functions of a police officer, in the manner to which I have previously referred. On this basis, I conclude that the appellant was incapable of personally exercising the functions of a police officer as referred to in s 10B(1). The order sought by the appellant which I have referred to in [4] above may be seen to have been inelegantly framed because, apart from a reference to "the infirmities of the right knee injury" and "post-traumatic right knee osteoarthritis", there is then a reference to a meniscectomy which is, as I understand it, an operative procedure and would not of itself constitute an infirmity. Nevertheless, there is abundant evidence that the appellant does have an infirmity of the right knee and, to this extent, the addition of the word "injury" does not add anything. 60 For the reasons that I have given, I conclude that, after consideration of the relevant evidence, the appellant was incapable as at the date of his resignation as a police officer, from the infirmity of the right knee, of personally exercising the functions of a police officer as referred to in s 14(1) of the Police Act. In so concluding, I certify to that effect. 61 For completeness, I observe that the parties have agreed that there is compliance with s 10B(2)(a) and that it is not necessary that I consider this aspect. For completeness, I also note that in certifying as to the matters referred to above I have had regard to medical advice on the appellant's condition and fitness for employment being the medical practitioners whose evidence I have accepted and have thereby nominated them as contemplated by s 10B(2C). 62 The question of costs has not been argued before me and, if it be relevant, I formally reserve costs.

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[1994] NSWIRComm 217

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Judgment (17 paragraphs)

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Cases Cited (3)

Cited By (1)