Woodlands v SAS Trustee Corporation

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

JUDGMENT: - 48 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Friday, 28 September 2001 Matter No IRC 1613 of 2000

Appeal pursuant to section 88 of the Superannuation Administration Act 1996 against a determination of the SAS Trustee Corporation made on 8 October 1999 re medical incapacity. JUDGMENT [2001] NSWIRComm 232

1 The appellant, John Edward Woodlands, has moved the Court by way of appeal pursuant to s 88 of the Superannuation Administration Act 1996 against a determination made by the respondent SAS Trustee Corporation on 8 October 1999. The respondent then declined to certify the appellant to be incapable, from infirmity of body being "feet injuries", of discharging the duties of his office in the police force in terms of ss 8(1) and 10B(1) of the Police Regulation (Superannuation) Act 1906. The appellant claimed he was relevantly aggrieved by the respondent's determination because it disadvantaged him in claiming additional benefits under the Police Regulation (Superannuation) Act relating to the quantum of his annual superannuation allowance, lump-sum gratuity and medical expenses by the operation of ss 10 and 12D thereof.

2 It should immediately be noted that the appellant was medically retired from the police force on 2 July 1999 following other earlier injuries sustained by him and in respect of which the respondent certified the specified infirmity for the purposes of ss 8(1) and 10B(1) of the Police Regulation (Superannuation) Act to be "thoraco-lumbar spinal degenerative condition; specific phobia for police work; exertionally induced vasodepressor episodes". The sole issue raised by this appeal was whether the injuries to the appellant's feet should be added to the certificate as a specified infirmity in terms of "Haglunds bumps in both feet resulting in retrocalcaneal bursitis"; the respondent refused to do so and, pursuant to s 88(3) of the Superannuation Administration Act, I am asked by the appellant to exercise that function of the respondent by amending the certificate accordingly.

3 I emphasise, and as counsel reminded me during the hearing, it is of no concern in determining the present issue how the appellant sustained the injuries to his feet or, specifically, whether or not such injuries were caused by him being hurt on duty - such maters of causation, I was informed, are for the Commissioner of Police, in the first instance, under s 10B(3)(a) of the Police Regulation (Superannuation) Act and, on appeal, by the Compensation Court under s 21 of that Act. Nevertheless, it is not realistic in attending to the existence of an infirmity to ignore the circumstances in which it allegedly arose and, indeed, the evidence before me did not do so. Even so, I will endeavour in referring to the evidence and making findings thereon not to trespass into irrelevant matters.

4 The appellant gave evidence and traced his history of employment in the police force with particular reference to the problems experienced with his feet. That evidence may be conveniently summarised in the following way - (1) Then 17 years of age, the appellant joined the police force as a cadet on 28 October 1963 and became a sworn constable of police on 10 May 1965 when he was posted to Paddington Police Station to perform general duties in the eastern suburbs of Sydney. (2) The police uniform boots at the time were of plain hard leather uppers and soles with little support for the foot and which the appellant described as "just like walking on a hard vinyl floor"; he added that "the cold from the street would come straight up through the sole of the boot and in your feet and in the summer when it was hot you would get the other effect and the heat transfer through". (3) Within a short period of commencing general duties, which the appellant said involved "extensive foot patrols ... also guard duties ... and I was on my feet a lot with the boots", he "noticed after a couple of months ... I was getting sore feet from walking around and standing and that pain would be right across the bottom of the feet and would spread up towards the ankle". (4) From August 1966 to August 1968 the appellant served in the Australian army undertaking his national service commitment. He noticed no ill effects from wearing army boots which, as he said, "... had a much better innersole. ... some give in it, had some shape in it to support the boot. ... generally fitted better ... a lot more support for the ankle. ... a bigger boot, taller boot, much more support for the ankle". (5) On returning to police duties, the applicant was then transferred to Byron Bay Police Station where, being a country location, he was not on his feet for as long but, as he said, his "feet were getting sore again ... pain was spreading right across the bottom of the feet and up the ankles". During this period when not on duty wearing ordinary footwear, including when jogging, the appellant did not experience problems with his feet until he wore the police boots. (6) The style of police boots issued changed about this time to a synthetic sole and then an elastic-sided boot was issued. (7) In 1977, the appellant was posted to Kogarah Police Station and in 1984 to Broken Hill when he was promoted to the rank of sergeant. (8) At Broken Hill, as a sergeant, he was the supervisor of a three-man crew and although he spent time at the station he was on his feet for most of the shift. He said his feet were "very sore at the end of the day shift ... same pain I was getting before, it would spread right across the bottom of my feet and then spread up to the ankles". (9) In 1987, the appellant was transferred to Ballina Police Station on supervisory work and general duties; he was required to be "on my feet a lot". (10) Although the appellant did not earlier seek assistance regarding the problems with his feet, in 1991 he attended a podiatrist in Ballina because, as he said, "the pain was getting quite severe then"; the podiatrist advised better quality inserts be fitted to his police boots and that relieved the problem for a couple of years. However, on its recurrence, he consulted another podiatrist, Mr C M Coleman, on 9 June 1994 who prescribed different inserts which "helped the pain again for another couple of years and then it became intense again".

(11) The appellant saw Mr Coleman on a few occasions during his period in Ballina and, on one occasion, Mr Coleman injected cortisone into one of his heels which gave relief for about 10 days before the pain returned.

(12) In 1995, the appellant was posted again to Byron Bay as a supervisory shift sergeant. He was part of a three-man shift similar to the work performed by him at Ballina. As to the condition of his feet while he was working, the appellant said "they were terrible ... the pain was quite intense and I would only have to put the shoes on in the morning and stand for 10 minutes and the pain was starting to get pretty intense and it would get worse as the day went on". As to the effect on his duties, the appellant said he occasionally removed his boots and sat down with his feet up; during off-duty periods he always wore good footwear, sometimes with air padding in it, and he continued the jogging which he had commenced during his army service.

(13) During his service at Byron Bay, the appellant said on one occasion because of ill-fitting uniform boots he suffered a blister on one of his heels and had some time absent from work. (14) With continuing problems concerning his feet, the appellant consulted a general practitioner in Byron Bay, Dr Robert Crocker, who on 1 November 1996 certified he was "suffering from painful feet which are being aggravated by wearing his police boots" and recommended he avoid wearing the boots for a period of four weeks. (15) Shortly thereafter, the appellant re-visited his podiatrist, Mr Coleman, at Ballina who on 22 January 1997 reported the appellant's complaint of "a foot condition that is excited by wearing/walking in Police issue Baxter slip on boots". Mr Coleman expressed the opinion "that if this patient wears work footwear that has similar features as found in good exercise shoes the presenting condition will reduce" so that a change in occupational footwear to include certain specified features should be considered as part of the treatment.

(16) On 4 February 1997, the appellant forwarded to his Patrol Commander at Byron Bay the report and recommendation of Mr Coleman and, in a covering memorandum, applied for better quality footwear to wear on duty in accordance with Mr Coleman's recommendations. Additionally, the appellant informed his Patrol Commander :

For some considerable time I have been suffering from sore feet whilst wearing my departmental elasticsided boots whilst on duty. This situation has been ongoing for at least the last 5 years but has been getting progressively worse.

(17) The Patrol Commander, Inspector C Long, forthwith forwarded the appellant's application to the Uniform Section of the Purchasing and Supply Branch of the Police Service. By letter dated 15 May 1997 to the Patrol Commander, Ms Frances Marshall, Acting Director of the Purchasing and Supply Branch, responded as follows to the application :

As a result of a recent mini trial by selected officers performing Beat Policing, Weapons Training, State Protective duties etc, it has been made clearly evident that footwear problems experienced in the field are much greater than anticipated.

In this regard, it is proposed to conduct a much broader trial throughout the State with alternative footwear to assess suitability for all classes of duty prior to renewal of the existing footwear contract.

With this in mind, I have taken the opportunity of including Sergeant Woodlands in the proposed trial and contact will be made as soon as practicable.

It is regretted that this application cannot be acceded to earlier and Sergeant Woodland's patience and co-operation will be most appreciated.

(18) On 12 March 1997, the appellant spoke to Ms Sharyn Noble, Claims Co-ordinator in the Workers' Compensation Branch of the Police Service, who advised him to apply through his Patrol Commander to Baxter's Boots for footwear of the type recommended by Mr Coleman. Apparently, the cost of the footwear was to be the responsibility of the Byron Bay Patrol. The appellant so advised his Patrol Commander on 14 March 1997.

(19) However, the appellant said he was never contacted about the proposed footwear trial even though on a number of occasions he unsuccessfully sought to contact the Purchasing and Supply Branch about it. Also, there was no response to his application for specially designed boots from Baxter's Boots.

(20) On authorisation from Inspector Long, the appellant visited Baxters Boots in Goulburn on 20 May 1997 and said he was informed that although a boot could not be supplied to the standard specified by Mr Coleman a better quality boot was available; a pair of those boots was provided to the appellant about one month later. He wore the new boots but reported that "although they are somewhat better on my feet than the standard issue, I am still suffering from sore feet, particularly after standing for periods of time". As his feet were becoming progressively worse from wearing the new boots, the appellant sought from his Patrol Commander urgent action in an endeavour to obtain better quality footwear. During the period August - September 1997 the appellant said the soreness in his feet continued even when he was wearing his own footwear while off duty, although to a lesser degree. (21) On 22 September 1997, the appellant commenced a period of annual leave but he did not resume duty as scheduled on 5 October 1997 because, as he said, "I went off on sick leave with stress and back problems and of course other things taken into account with my feet and a heart problem as well". The appellant never returned to duty in the Police Service.

(22) The appellant thereupon consulted a number of medical practitioners, including Dr Crocker, concerning the various problems as to the condition of his overall health, including his feet.

(23) On 19 January 1998, the appellant made an application for medical discharge from the Police Service and applied to the respondent for a certificate that he was incapable of discharging the duties of his office by reason of four medical conditions claimed as hurt on duty, namely - · Stress created by police service over many years. · Numerous back injuries whilst on duty over many years. · Feet injuries created and developed over many years. · Developed heart condition affected by work stress. In his application the appellant provided reasons which he believed prevented him from performing the duties of his office and such reasons related to "accumulated stress" (including the resultant effects of undergoing an operation on 6 November 1997 for a heart condition) and "accumulated back injuries"; there was no mention in the specified reasons of the condition of his feet. (24) On 30 June 1999, the respondent certified pursuant to ss 8(1) and 10B(1) of the Police Regulation (Superannuation) Act that the appellant was suffering the specified infirmity of "thoraco-lumbar spinal degenerative condition, specific phobia for police work, exertionally induced vasodepressor episodes"; there was no specification of the injuries to the feet.

(25) The appellant thereupon requested the respondent to add as an infirmity to the certificate of incapacity so issued the condition of "feet injuries". On 14 October 1999, the respondent advised that on 8 October 1999 its Disputes Committee considered his request and had determined to confirm the decision of its delegate to exclude the condition of "feet injuries" from the appellant's certificate of incapacity. It is against that decision the present appeal is brought. (26) For completeness, on 2 July 1999 the delegate for the Commissioner of Police, in accordance with the function contained in s 10B(3)(a) of the Police Regulation (Superannuation) Act , decided that the infirmity of "thoraco-lumbar spinal degenerative condition" as specified in the respondent's certificate of 30 June 1999 was caused by the appellant being hurt on duty on seven specified occasions from 13 March 1975 to 11 July 1996. However, the delegate further decided that the specified infirmities of "specific phobia for police work" and "exertionally induced vasodepressor episodes" were not duty related. (27) On 25 May 2001, the respondent advised the appellant's solicitor that on 11 May 2001 it had amended the certificate to its present form by substituting for "specific phobia for police work" the infirmity of "generalised anxiety disorder"; otherwise, the certificate remained unchanged. The respondent notified the Commissioner of Police accordingly. (28) The appellant has filed an appeal in the Compensation Court pursuant to s 21(1) of the Police Regulation (Superannuation) Act against the Commissioner's decision not accepting the two stated infirmities of "specific phobia for police work" and "exertionally induced vasodepressor episodes" as being duty related. Any further proceedings concerning the appellant's "feet injuries", as to whether duty related or not, are dependent upon the decision in the present appeal as to whether such injuries should be certified as relevantly specified infirmities under ss 8(1) and 10B(1) of the Police Regulation (Superannuation) Act and, if so, any decision of the Commissioner thereon concerning the causal relationship.

5 As to the condition of his feet after he ceased work in September 1997 as affecting his ability to perform police duties, the appellant gave the following evidence : Q. In regard to your ability to discharge your duties as a Sergeant of Police in July 1999 what, if any, effect did the condition of your feet have upon your ability to do that? A. It made it impossible.

Q. In regard to July 1999 - you just gave some evidence in regard to October 1997 - in regard to July 1999, what, if any, effect did the state of your feet have upon your capability to discharge your duties of your office? A. I would not have been able to do it.

Q. In your opinion why is that? A. The same as before, the previous couple of years prior to that my feet were just so sore from having those boots on I just could not do the duties.

Q. In the period between October 1997 and July 1999 what was the situation? A. Well, because I had not been wearing the police boots I thought my feet might have improved but if I had the boots on it just came back, almost immediately. Under cross-examination, the following evidence emerged : Q. Sir, between your last day of service in 1997 and your actual discharge in 1999 you didn't wear police boots, is that correct? A. Nearly all the time, occasionally I did wear a pair of boots.

Q. You would have had boots around? A. Occasionally.

Q. But you didn't return to wearing your police boots at that period of time? A. No.

Q. Is it fair to say the condition of your feet improved over that two year period? A. They felt as though they improved.

Q. From 1999 to now have you tried on a pair of police boots? A. Only an old pair I use around the paddock when on my rider mower or if wet or muddy or grotty. I have a pair of oversize boots that have inserts in them that I wear on those occasions.

Q. These problems that you have described with your feet, you have had those ever since 1965? A. That is when I first noticed, not long after coming out and doing the beat as a probationary constable.

Q. And it would be fair to say that throughout the period of your employment with the police service you had pain with your feet? A. Yes.

Q. And that pain got worse on some occasions and got better when you used the inserts initially, is that right? A. The paid gradually got worse over a period of time when I used the inserts. It would relieve the pain somewhat. The pain never entirely went away that I had zero pain, made it bearable.

Q. The pain in your feet now, do you have pain in your feet now? A. A little.

Q. Is it fair to say it is a lesser pain now than when you left the police force? A. Yes, probably now, yes.

Q. Can you recall when you first sought medical treatment for your feet? A. The inserts that I put in was my idea at the time, but as to seeking medical advice was probably the podiatrist. I saw the podiatrist in 1991 in Ballina.

Q. Is it fair to say there is no comment there about your feet condition because at the time you completed this form you believed that if you had only your foot problem you could have continued working as a police officer? A. No.

Q. You don't believe that? A. No, I wouldn't have been able to continue working with the foot problem.

Q. Why didn't you put that in the form? A. Those things I put in there I thought was the most important.

Q. It doesn't say that. A. No, but I was told certain things before filling it in.

Q. It doesn't ask? A. Set out below the reasons I believe prevent me performing duties in my office.

Q. What could have stopped you putting in a comment about your feet there? A. I didn't think about it at the time.

Q. Is it fair to say you didn't think about it at the time because it wasn't important? A. It was important at the time, but these other things I thought were more important.

Q. These other things were incapacitating? A. Yes.

Q. You feet condition was not incapacitating was it? A. I disagree.

Q. Sir, the present condition of your feet, how long has that remained in the state that it is now? A. Some time, a long time.

Q. A number of years? A. Yes, in one of those reports I put for five years preceding. As I said earlier on the problem first arose a couple of months after I started performing duties as probationary constable.

Q. I know it started back in the 60's, but your current state of health as far as your feet is concerned, has it remained constant? A. At least the last five years, I'd say.

6 The appellant said in evidence he had consistently played squash, in addition to his jogging activities commenced during his army service, about twice each week since 1995; he had not regularly jogged since last year, although he walked his dogs. He was emphatic he could not continue to work as a police officer with the present condition of his feet. On being shown a video, which was admitted into evidence, of him playing a game of squash on 23 August 2000, the appellant gave this evidence : Q. You were asked questions about the history of playing squash including recently and what is involved in the game of squash and the physical exertions. Would you please tell his Honour how your experience of playing squash compares with your experience with the duties which you were required to discharge as sergeant of police working an eight hour shift? A. Squash is a lot shorter in hours, it is the length of the game. You play your own intensity. I am also wearing the best foot wear I can get at the time. Work wise, you are stuck with the boots on, have to stand up for long periods of time, there is no comparison wearing police boots to wearing squash shoes or joggers. It is hard to alleviate the pain wearing police boots unless you actually take them off and when you finish squash your feet are a little sore but it goes away, nothing like working an eight hour shift with boots and about two hours into the shift your feet are in agony and it gets worse during the day.

7 In the respondent's case, an affidavit sworn by Sharyn Noble, a claims co-ordinator in the Workers' Compensation Branch of the Police Service, was read into evidence in which she confirmed receipt of the report dated 22 January 1997 from the podiatrist, Mr Coleman, as referred to during the appellant's evidence; she confirmed also the discussions she had had with the appellant on 12 March 1997 regarding his request for more suitable footwear from Baxter's Boots. However, Ms Noble had no recollection of the appellant contacting her again regarding footwear and could find no record on file in that respect.

8 An affidavit sworn by Thomas Frederick Norris, a medical practitioner with the Medical Section of Health Services in the Police Service was read into evidence. Dr Norris said that the workers' compensation data base identified two claims lodged by the appellant relating to injuries to his feet on 29 August 1996 and on 11 November 1996. The first claim concerned an injury said to have been received on 11 August 1996 being "blister to heel for R foot" caused by "new police boots"; the second claim related to an injury said to have been received on 1 November 1996 being "feet pain boots" caused by "suffering sore feet from wearing boots". As to the policy for the issue of non-standard uniform footwear for medical reasons, Dr Norris deposed in his affidavit as follows : 5. Standard issue footwear for police officers is black lace-up shoes or black lace-up or elastic sided boots. Any non-standard footwear would need to be black and polishable and be able to be maintained as a uniformed garment. It is my understanding that shoes such as joggers would not be permissible for a uniformed police officer.

6. The recommendation of the Police Medical Section for operational police officers would be in terms that officers be allowed to wear non-standard polishable black boots or shoes which would satisfy the requirements specified by a podiatrist and still be in keeping with the normal police uniform. We would allow orthotics to be worn where recommended by a podiatrist.

7. The Medical Section would support a recommendation such as that made by Mr Coleman for non-standard uniform boots with the features listed where there is a valid medical reason to do so. The footwear would however have to meet the requirements listed above at paragraph 6.

8. I have no knowledge of the features of any boots that were issued to Mr Woodlands following the recommendation of his podiatrist or whether such boots met the podiatrist's recommendation. If the podiatrist had written to the Medical Section stating that boots provided to Mr Woodlands following his letter of 22 January 1997 were not adequate, the Medical Section would have recommended that he be provided with alternative black work boots or shoes as per the recommendation of the podiatrist and in keeping with the uniform standards. However, there is no record of any such report or request from the treating doctor or podiatrist being received by the Medical Section.

9 Both parties made available and relied upon a number of reports from medical practitioners who had examined the appellant. It was apparent that the appellant suffered from medical conditions apart from his feet and most of the reports made available concentrated on those other conditions rather than the foot problems. Although each party relied upon oral evidence from a specialist orthopaedic surgeon who had examined the appellant, it is convenient before referring to that evidence to deal with the opinions expressed by the other medical practitioners whose reports were tendered but without oral examination.

10 For the appellant, the medical reports concerned were from Dr John R S Ashwell (orthopaedic surgeon) of 24 August 1990, Dr Ellen McGirr (consultant rheumatologist) of 22 April 1994 and Dr W G D Patrick (surgeon) of 5 June 2000. The relevant extracts therefrom were as follows : Dr Ashwell -

On examination he had some tenderness on palpation over the left heel and pain on the back of the right heel with ankle movement. There was full ankle and subtalar joint movement.

He has a left plantar fasciitis and a right achilles tendinitis. I have recommended heel raisers in both shoes and reduction of activities over the next 6 weeks. I will review him again at 6 weeks with consideration of injection of his left heel.

The problem appears to be a left calcaneal bursitis, likely to be a mechanical problem related to his activities and I didn't find any features in the history to suggest it was part of a sero-negative arthropathy. I have however done screening tests for arthritis and arranged X-rays to see if there has been any change from the bony spurring. Mr Woodlands was not keen on further injection and does not want to reduce his activities and specifically requested that he see an orthopaedic surgeon to see if something could be offered surgically. I did say to him that there would be no guarantee of cure with surgery but have made arrangements for him to see one of the orthopaedic surgeons to discuss his options.

Following my re-examination of Mr Woodlands on 5 June 2000, in my opinion, resulting from his work/work injuries, Mr Woodlands has a permanent impairment of the back of 22% in comparison to most extreme case; a permanent impairment of the neck of 18% in comparison to a most extreme case; and a permanent loss of efficient use of the right leg (lower limb) at or above the knee, including loss below the knee, of 16%; and of the left leg below the knee, including loss of use in the foot, of 6%.

The abovementioned assessments may be regarded as being entirely work/work injury related, with no component of the assessments relating to any pre-existing constitutional, developmental or degenerative condition, nor to his various athletic/sporting activities. The prognosis is for ongoing symptoms. Surgical intervention does not appear to be indicated. If symptoms of the low back progress, or if any sciatic type symptoms develop, then it would be reasonable to proceed to magnetic resonance scan of the lumbar spine.

As a result of his work related injuries, Mr Woodlands continues to be permanently incapacitated for his former work as a Police Officer, and is permanently incapacitated for physical work involving significant lifting, bending or stooping, heavy use of the right arm, or being on his feet for long periods of time without the ability to rest from time to time.

11 The respondent relied upon medical reports from Dr Neil G Thompson (consultant orthopaedic surgeon) of 4 February 1999, Dr W G D Patrick (surgeon) of 1 May 1999 and Dr Anthony J Christie (occupational physician and medico-legal consultant) of 11 September 1999. The relevant opinions extracted from those reports stated : Dr Thompson -

My conclusion was that he had no significant abnormality in his feet compared with males of the same age group. I could find no specific cause for his complaints and, considering his activities over the years, could find no indication for restriction of use of his feet. It would seem sensible for him to wear general insoles such as Sorbothane.

I believe Mr Woodlands continuing symptoms at his back, neck and feet are significantly work-related, related to the various incidents of frank injury, as well as the nature and conditions of his work. I believe his employment has been a substantial contributing factor to his injuries at back, neck and feet.

In my opinion - resulting from the work/work injury - Mr John Edward Woodlands has a permanent impairment of the back of 20%, a permanent impairment of the neck of 16% - both these being in comparison to a most extreme case; and also a permanent loss of efficient use of the right leg (lower limb) at or above the knee, including loss below the knee, of 10%; and of the left leg below the knee, including loss of use in the foot, of 6%.

The prognosis is for continuing symptoms. Surgical intervention does not appear to be indicated.

If symptoms persist, then quality Magnetic Resonance Scan of the lumbar spine may be a reasonable investigation.

The abovementioned assessments may be regarded as being entirely work/work injury related, with no component of the assessments relating to any pre-existing constitutional or degenerative condition.

In my opinion - as a result of his continuing symptoms - Mr John Edward Woodlands would be incapacitated for the normal full duties of a police officer.

In my opinion - Mr John Edward Woodlands would probably be capable of carrying out light or restricted duties, within the police force, or in an occupation outside the police service, which position did not involve significant lifting, bending or stooping, or being on his feet for significant periods of time, and having the ability to move about and change posture from time to time at will. Dr Christie -

Dr Thompson, orthopaedic surgeon was unable to detect any abnormality in his feet. Dr Patrick, orthopaedic surgeon noted that there was some evidence of planter faciitis affecting the right sole and heel more so than the left. Dr Crocker notes that he had painful left heel spur. I would therefore that while there is evidence that Mr Woodlands did suffer from painful feet, and that in some way the painful feet may have been related to his police service, although it would be difficult to exclude "social and competition squash three times per week since age 25" as a cause of plantar faciitis. I do not believe however, that there is any evidence that he was unfit for the full duties of a police officer, by reason of the condition of his feet and therefore see no reason why this condition should be added to his certificate.

12 Dr Eugene Sherry, an orthopaedic surgeon specialising in foot and ankle problems, examined the appellant on 5 June 2000 and, at the request of the appellant's solicitors, prepared four reports on the appellant's feet injuries dated 7 June 2000, 4 October 2000, 6 December 2000 and 3 January 2001. In his principal report of 7 June 2000, Dr Sherry outlined the history of the injury in a manner consistent with the appellant's evidence here and noted that currently the appellant reported "pain in the medial arch of both feet and also along the lateral medial borders of both feet and it is worse in the morning ... He reports no swelling. ... He reports no instability." Dr Sherry then related the results of his investigation of the appellant and a summary of his findings in the following way : INVESTIGATIONS

He had an x-ray on the 4.11.93 which shows calcification in the origin of the head of the achilles on the left hand side. He had an x-ray of his on the 1.6.90 which was unremarkable.

On examination today he was an anxious, cooperative man. He is 5'9" tall and weighs 11 stone 9 lbs. He has a slight antalgic limp and is able to get on his toes and heels, can invert and evert. Forward flexion of his spine was to 20 degrees and lateral flexion was to 10 degrees. His calf diameter on the left side was 37 cms and the calf diameter on the right side was 38 cms. He had normal hind, mid and forefeet on both sides. There is preservation of the medial arches. However, he does have a Haglunds bump on the left side and, to a lesser extent on the right side. Straight leg raising of both legs was to 70 degrees. He had a decreased range of motion of his neck for lateral flexion and rotation to the right.

A 54 year old man was calcification at the tendo achilles insertion associated with a Haglunds bump and who has been symptomatic from May 1965 to retirement in 1997. He showed me the Baxter shoes he had worn in the Force which had very little cushioning effect and no medial arch support. His problem is related to shoe wear.

To refer specifically to the questions raised in your letter:

1 ... 2 ... 3 My diagnosis was of a Haglunds bump on both heels with calcification of tendo Achilles. 4 He will require orthotic modification, physiotherapy, Eucanol treatment and he may require surgical intervention to excise the calcified areas in the tendo Achilles. 5 It is my opinion that his employment was a substantial contributing factor. 6 His prognosis is generally guarded and he is unlikely to get any further improvement. 13 A supplementary report was prepared by Dr Sherry on 4 October 2000 which concluded :

Mr Woodlands has a Haglund's bump on the left foot in the region of the calcaneus and, to a lesser extent on the right side. His permanent percentage loss of use of the left leg at or below the level of the left knee is 20% and his permanent percentage loss of use of his right leg at or below the level of the knee is 10%.

14 In his further report dated 6 December 2000, Dr Sherry said : I am able to confirm that it is my opinion that this client is incapable from a specific infirmity of body of discharging his duties as a Police Officer.

I am also able to confirm that this client is incapable from that diagnosed specific infirmity of body of discharging any other duties not of a lesser rank which would be reasonable for him to perform.

15 In his final report dated 3 January 2001, Dr Sherry confirmed that the appellant "has Haglunds bumps in both feet resulting in retrocalcaneal bursitis".

16 In his oral examination-in-chief, Dr Sherry explained the nature of Haglund's bumps and their resultant effect as follows : Q. Please explain the nature of that disorder and there is an exhibit in these proceedings Ex 2 which I can hand to you, to which you may care to refer, it has a photograph of the foot? A. It is a problem with the heel and is related to constant friction or rubbing there and you get a swelling of the bone, or bump, and that becomes associated with irritation of the overlying tissues called a bursitis, usually seen in adult males, sometimes arises spontaneously but in the great majority of cases there is some precipitating cause, and now, we realise most problems with the feet are related to improper shoe wear.

Q. What if any relation does the condition have with plantar fasciitis? A. It may co-exist.

Q. What if any relation does that condition have with a disorder of the Achilles tendon such as tendonitis? A. I think very closely related and it may in fact, have the same underlying cause and manifestations with the same problem.

Q. Are they separate conditions, tendonitis in the Achilles as opposed to the Haglunds bumps? A. No I think they may be the same thing.

17 Dr Sherry was referred to the opinion expressed by Dr David Bornstein, an orthopaedic surgeon who gave evidence for the respondent, to the effect that the condition of the appellant's feet did not render him incapable of discharging the duties of a police officer. Dr Sherry disagreed with Dr Bornstein and affirmed his opinion that the appellant "has problems with Haglunds bump and bursitis and it would be difficult for him to wear the shoes he is required to wear and it therefore would be very difficult for him to perform the duties of his office". In expressing that opinion, Dr Sherry added he was aware the appellant continued to play sport and repeated the comment in his report of 7 June 2000 that "his foot problems are aggravated by playing sport".

18 By reference to the symptoms currently experienced by the appellant with his feet, Dr Sherry gave the following evidence under cross-examination as to the effect of those symptoms on the appellant being able to perform work : Q. You reported, no swelling and no instability with the feet? A. Yes.

Q. There was pain in the medial arch of both feet along the lateral borders of both feet and it was worse in the mornings? A. Yes.

Q. With that sort of symptomatic complaints, would you expect Mr Woodlands to be able to do work at an eight hour shift? A. I think it would be difficult.

Q. But it was something he could do? A. I think he could yes he could.

Q. You would accept those symptoms as recorded, which fall on to the minimal ends of the spectrum in terms of overall symptoms? A. I do not think minimum, no, worse than that.

Q. You did not see the history of him playing regular squash? A. No playing squash, just talked about playing sport.

Q. You would accept, firstly, would you expect him to be able to play competition squash with this sort of problem? A. The funny thing is yes probably because sport or squash shoes are often designed with this sort of problem in mind and they actually incorporate features to have the shoe properly soft and properly sized to avoid or minimise this problem and you often find that work boots are behind and they actually precipitate these problems. There seems to be less thought put in these designs than sport shoes.

Q. The problem is one of pain? A. Yes.

Q. And you accept playing sport when in pain, it is possible to play sport while in pain? A. Yes.

Q. And possible to work while in pain? A. Yes.

Q. I want you to assume that in the last four or five years of service the only time off taken in relation to his feet was when he had sustained an infection to a blister that he had under his heel. A. Yes.

Q. And that he took a number of days, perhaps over a week off work as a result. Given that he was able to work throughout the period with pain in his foot and not take any time off, it is reasonable to suggest that he is fit for work, notwithstanding the problems with his feet, is it not? A. Fit for work now or fit for work then?

Q. Fit for work then. A. Yes, but a lot of people carry on working with fairly severe foot pain so the fact that you are still working, I think, does not mean you have not got a significant problem with your foot.

Q. But you would expect that the level of his symptoms and the problem that you have diagnosed would not preclude him from working an eight-hour shift? A. Well, if he worked it, he worked it. He worked the shift, didn't he? Isn't that what you told me?

Q. You said earlier that it would not preclude him from working an eight-hour shift? A. Yes, but he could do it with difficulty.

Q. You would accept that was the situation even if he left work for other reasons in 1997? A. Yes.

Q. It was certainly the situation when you saw him in June of last year? A. Yes.

19 As to the ability of the appellant to play squash on a regular basis and to work on his property wearing old work boots from the police force, Dr Sherry gave this evidence : Q. Doctor, I want you to assume that Mr Woodlands played squash on a regular basis usually two days a week and at each session of those two days he plays one session each day, the duration of the squash varies, it is usually based on five sets and it is sometimes as long as five sets. A. Yes.

Q. I want you also to assume on that history alone, is it fair to assume that any loss of use of his legs below the knees is fairly minimal, if at all? A. I can't understand the logic. I can't understand what you are trying to suggest.

Q. What I am trying to suggest is he is fairly fit? A. Yes.

Q. And wouldn't you agree with that? A. Yes I would.

Q. Doctor, given the extent of the squash activities that I have outlined to you in my previous question, is that consistent with the level of percentage loss assessments that you have given in that report, 4 October 2000? A. Well, I am surprised that he is able to play that much squash, given my assessment of him, so I am surprised that he is able to play so much and so vigorously. I am surprised to hear that.

Q. Doctor, did you receive any history of his working activities on the property on which he resides? A. No.

Q. I am not going to suggest to you that it is very strenuous, but there are occasions where he will venture outdoors and his footwear will be old work boots from the Police Force. A. Yes.

Q. I take it from that you say in your report that that would not be something that you would advise him to do, given his condition? A. To wear old boots. Sometimes old ones are probably better than the new ones in terms of chafing and tightness.

Q. So it is possible they could be comfortable to wear? A. It is possible.

Q. As opposed to new boots? A. Yes.

Q. You wouldn't find that inconsistent with your opinions? A. No.

20 At the end of the day, Dr Sherry expressed the following view about the duties of a police officer which the appellant was incapable of performing because of the injuries to his feet : As outlined to me the requirements of wearing special shoes, of which there was a history of them causing him a particular problem, causing him the problems with his heel is the first thing, so the shoe requirements. Secondly, there is the prolonged period of being on your feet, fairly vigorous activity of walking, climbing, which certainly aggravated any lower limb or foot problem, or vigorous activities, kneeling, squatting, ladders, walking, long periods of standing, would aggravate foot conditions.

21 The main medical evidence relied upon by the respondent was given by Dr David Bornstein, an orthopaedic surgeon, who examined the appellant on 7 August 2000 and his report thereon dated 11 August 2000 was admitted into evidence. After tracing the history of the appellant's situation and complaints, Dr Bornstein expressed the following opinion in his report : This gentleman has a plethora of physical complaints.

However, you have asked me in particular regarding his feet and there is no question that his feet are not what put him off work.

Despite the patient's complaints that it was both the back and the anxiety state in about equal proportions that put him off work, it would seem to me that the anxiety state is almost certainly the prime cause of him going off.

On purely objective grounds, there is no question that the condition of his feet did not render him incapable of discharging the duties of his office as at 9 July 1999 and I also would not consider that the condition of his feet rendered him incapable of discharging the duties of his office in October of 1997 when he went off on long term sick leave.

It should be noted that, even if he found the shoes uncomfortable and they were causing him foot pain, as he states, the provision of appropriate moulded inner soles manufactured by a podiatrist to castings of his feet would have provided him all the support and comfort required which would have rendered him relatively pain free as, in fact, he states, has happened in the past.

He himself states that, if he wears joggers or similar shoes, he has little or no pain in his feet. Today, while wearing such footwear, he stated he had been doing a lot of walking before coming to this consultation and that his feet were a little sore.

It seems fairly clear as stated above that the major problem that this gentleman has appears to be of a psychological nature which is well out of my field.

22 Although Dr Bornstein was not familiar with the name "Haglund's bump", he nevertheless considered the condition of calcification seen on the appellant's x-rays and referred to by Dr Sherry would not preclude a person working as a police officer. As to the appellant's squash activities, Dr Bornstein said : Q. I want you to assume that for the last four to five years he has continued to play squash on average two nights a week and that the squash that he plays is the best of five games, best of five sets I should say, so sometimes he only plays three sets but other nights he would play five sets. A. Yes.

Q. The activities of squash, are they consistent or inconsistent with a disability that would preclude somebody from working an eight-hour shift as a policeman? A. I am not a squash player but my limited knowledge of the sport is that it is a very stressful one on the feet. It is a very fast game. People are changing positions frequently and changing direction frequently, pivoting on their feet. If a person can manage five games of squash at a competitive level one would have expected that with more appropriate modification there would be no reason why he would not able to wear regulation work boots and work.

23 Under cross-examination, Dr Bornstein confirmed he was a general orthopaedic surgeon but did not specialise in foot and ankle problems and had not made any specific studies of footwear. Even so, he maintained that problems suffered with feet could be addressed by the wearing of appropriately designed inserts and insoles. In accepting that the appellant had an ossification of the Achilles tendon, a condition apparently attributed to a Mrs Haglund, Dr Bornstein agreed that if the appellant's shoes were not internally modified then he would have a problem with the underlying foot condition; in that respect, the following evidence emerged from him : Q. ... Doctor, finally, the proposition I put is that a man such as Mr Woodlands, or Sergeant Woodlands as he then was, who was required, in the course of his duties, to stand and to perform operational tasks as well as supervisory tasks, who was required to wear standard issue police boots, suffer pain to a degree of unbearable pain as at October 1997 was a man who was incapable of performing all his duties as a Sergeant of Police due to the traction lesion from which he was suffering. You would agree with me, wouldn't you? A. He would have been unfit for work of an exceptional nature on his feet due to a painful condition in the foot. Whether that painful condition in the foot was due to a traction lesion or not I can't say. Most of these traction lesions are not particularly painful. A traction lesion is a rhetorical diagnosis.

24 The provisions of the Police Regulation (Superannuation) Act under which the present issue is to be considered appear in ss 8 and 10B. To the extent relevant, those sections state : 8 Determination of members medically unfit (1) A superannuation allowance or gratuity shall not be granted or paid under section 7 or 14 to a member of the police force who: (a) is discharged after the commencement of the Police Regulation (Superannuation and Appeals) Amendment Act 1973, and (b) at the time of the member's discharge is under the age of sixty years,

unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from infirmity of body or mind, of discharging the duties of the member's office.

(2) STC may certify that a member of the police force is incapable of discharging the duties of the member's office only if the member is incapable of discharging the duties of the office in the police force in which the member is then employed and also any other office in the police force:

(b) which is not lower in rank than the office in which the member is then employed, and

(c) in which it would be reasonable to expect the member to be employed.

10B Medical examination of disabled member and determination of whether hurt on duty

(1) An annual superannuation allowance shall not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of discharging the duties of the member's office.

(2A) STC may certify that a member of the police force is incapable of discharging the duties of the member's office only if the member is incapable of discharging the duties of the office in the police force in which the member is then employed and also any other office in the police force: (a) which is available to the member, (b) which is not lower in rank than the office in which the member is then employed, and (c) in which it would be reasonable to expect the member to be employed.

(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.

25 It will be apparent that s 8 and s 10B each deal with different situations even though both sections are concerned with a determination of the common question of a police officer's medical fitness for duty; indeed, a perusal of the qualifying requirements in each section for such a certificate will be seen to be essentially the same. Any certificate issued by the respondent as to that question is invariably, as a matter of practice, issued pursuant to and for the purposes of both sections. It is convenient, therefore, to identify why that is so as part of the statutory scheme for the provision of superannuation benefits to police officers. A certificate under s 8 is a pre-requisite for the payment of an annual superannuation allowance under s 7 where the police officer is not hurt on duty and a lump-sum gratuity under s 14 where a police officer is discharged but not hurt on duty. On the other hand, a certificate under s 10B relates to the medical qualifying condition for the payment of an annual superannuation allowance under s 10 to a police officer whose discharge was caused by being hurt on duty; additional benefits in relation to gratuities arise under s 12D for a police officer hurt on duty in respect of loss of limbs, medical expenses, etc. Necessarily, then, of course, s 10B in sub-s (3) thereof makes provision for the Commissioner of Police to decide whether or not the specified infirmity to which the medical certificate related was caused by the police officer being hurt on duty; no such provision would be appropriate in s 8.

26 At the time a certificate is being considered by the respondent for issue to a police officer, the question whether the officer was hurt on duty does not arise unless and until it be decided to issue the certificate concerned on the ground that the officer was incapable, from a specified infirmity of body or mind, of discharging the duties required by the office. And so it is that it is appropriate, as I understand the scheme, for the respondent in issuing a certificate to do so pursuant to both s 8 and s 10B so as to enable, if it should arise, consideration whether the infirmity to which the certificate related was caused by the police officer being hurt on duty; if it was, then superannuation benefits would arise under s 10 but, if not, under s 7. It need only be added as a general comment that the benefits prescribed by s 10 are potentially more favourable to the officer than those under s 7, although it is unnecessary for present purposes to make a comparison of such benefits.

27 In the present case, the appellant on 30 June 1999 was granted by the respondent a certificate under ss 8(1) and 10B(1) with the specified infirmity being "thoraco-lumbar spinal degenerative condition, specific phobia for police work (later changed on 11 May 2001 to 'generalised anxiety disorder'), exertionally induced vasodepressor episodes"; the respondent refused to add the claimed infirmity related to the "feet injuries". On 2 July 1999, the Commissioner of Police, in terms of s 10B(3)(a), decided that the infirmity of "thoraco-lumbar spinal degenerative condition" was caused by the appellant being hurt on duty but the remaining two infirmities of "specific phobia for police work" and "exertionally induced vasodepressor episodes" were not duty related. On 8 October 1999, as advised to the appellant on 14 October 1999, the respondent confirmed the earlier decision of 30 June 1999 to exclude the condition of "feet injuries" from the appellant's certificate of incapacity under ss 8(1) and 10B(1). Thus, in deciding this appeal the question of the operation of the applicable statutory provisions in terms of multiple infirmities arises for consideration. For that purpose, and consistent with the way in which the matter was argued by counsel, I propose to do so by reference to s 10B as the directly applicable provision here, although, and this was common ground, any decision to add the injuries to the feet to the certificate would have to be pursuant to both s 8(1) and s 10B(1). It should only be added that the appellant, by reason of the certificate issued already and the Commissioner's decision that he was hurt on duty in sustaining the injuries to his spine, on his medical discharge as from 2 July 1999 has been in receipt of an annual superannuation allowance equal to 72.75% of his salary of office in accordance with s 10 of the Police Regulation (Superannuation) Act.

28 Mr Mark J Walsh, counsel for the appellant, advised it was agreed between the parties that the appellant was suffering the three specified infirmities, as stated in the existing certificate, which made him incapable of discharging the duties of his office within the meaning of both s 8(1) and s 10B(1); in essence, counsel said the appellant sought the addition of "Haglunds bumps in both feet resulting in retrocalcaneal bursitis" to the infirmities already so specified. Mr Walsh's approach was based on the fundamental fact according to the evidence, as counsel submitted, "that the foot disorder which had developed over thirty years had reached a level of approaching unbearable pain (which) led (the appellant) to be incapable, as at the time he went off (duty) in October 1997, of discharging his duties as a Sergeant of Police". In consequence of that fact, counsel put his basic submissions in this way -

· Primarily, the evidence established a significant condition of infirmity of the feet which was operative to make the appellant incapable of performing his duties as a sergeant as at 2 July 1999.

· Alternatively, the appellant was incapacitated as at 2 July 1999 from specified infirmities of body and mind, including the existence of the infirmity to the feet, which was an operative component causing him to be incapable of discharging his duties as a sergeant.

29 Mr Walsh helpfully provided a written outline of reasoning which developed those primary and alternative submissions. It was conceded that the disorder to the appellant's feet did not make him totally incapable of any employment, in the sense of being totally incapacitated for any work, but, in accordance with the test laid down under s 10B, the disorder made him incapable of performing the duties of his office - that was sufficient to qualify the appellant for the foot injuries to be added to the certificate already issued under the section which, in any event, made it plain that the respondent accepted he was incapable to the required standard of performing the duties of office by reason of the other infirmities. Counsel put that once it be accepted, as the appellant's own evidence did and as supported by the medical evidence, that he was incapable of performing his duties in whole or in part by reason of the injuries to his feet then he was entitled to a certificate in the amended form claimed.

30 Mr Walsh relied upon the decision of Kavanagh J in Daykin v SAS Trustee Corporation [2000] NSWIRComm 7. I will return to consider that case in more detail shortly. However, at this stage it is sufficient to point out that it too was concerned, as here, with the effect of multiple infirmities and their inclusion in an existing certificate issued under ss 8(1) and 10B(1) of the Police Regulation (Superannuation) Act in relation to other infirmities suffered by the officer concerned. Her Honour amended the certificate by adding the further infirmity even though such infirmity, in itself, was found by her Honour to be only partially incapacitating. I should immediately indicate that Mr T M Ower of counsel, who appeared for the respondent, indicated that his client had filed an appeal against the decision in Daykin and, for present purposes, maintained it was wrongly decided. Nevertheless, and notwithstanding the forthcoming appeal, both counsel urged me to decide the present case on the basis that the issues had been fully argued and it was not desired to delay a determination of the present appellant's claims. I propose to do so.

31 In opposing any amendment to the certificate, Mr Ower's opening submission was to the effect that the "simple question in the case, is whether those problems with his feet are severe enough to make him incapable of discharging his duties of office". In other words, and as the respondent conceded, "where multiple infirmities are not sufficient individually to make someone wholly incapable of discharging their duty but together are sufficient, in those circumstances ... that is the end of the inquiry. ... the appellant would only need to show that he was incapable of performing some part of his duties to be able to have the impairment added to the certificate. ... partial is sufficient". That is, as I understood the submission, if the appellant was unable to perform part of his duties of office then the certificate should be amended. However, counsel was at pains to stress that the terms of both s 8 and s 10B required that before a certificate could issue, or an infirmity be added to an existing certificate, the subject infirmity in whole or in part had to make the officer to some extent incapable of performing the duties of office. Here, Mr Ower submitted there was no evidence the appellant was so incapable and where the problems with his feet had existed for over 30 years but not so as to prevent him from discharging his duties as a police officer.

32 In resisting the reliance by Mr Walsh on the decision in Daykin, Mr Ower said it depended on what was really decided in that case. On one view of Daykin, Mr Ower said it may be seen to stand for the proposition that once an officer was deemed totally incapacitated then any other infirmity not productive of incapacity may be included in a certificate even though it did not itself lead to an inability to perform the duties - that was said to be an error because the further infirmity should not be included in the certificate as it would be unnecessary to do so. Put another way, if the view in Daykin be that partial incapacity justified inclusion in a certificate then that was wrong; inclusion in a certificate was only available where it be found also that the partial incapacity precluded an officer from performing the duties of office. Essentially, then, Mr Ower's submission, which he feared was not the approach in Daykin and which he sought to ensure against in the present case, was that to be included in a certificate the infirmity in whole or in part must prevent the officer from discharging the duty of his office. Counsel put it this way : A difficulty arises with Daykin, in my submission, that one view of it could be that a person with an underlying problem, it doesn't stop them from discharging their duties, and then it is this supervening incapacity which occurs, whether it be an infirmity of mind or body or whatever, it's the supervening incapacity. That means that they are then totally incapacitated for that work. Now one view of what her Honour is saying in Daykin is that when that happens you put everything on the certificate. I am saying, with respect, that is wrong because you have got to pass that threshold question of whether the person can discharge their duties or not and if an infirmity does not stop them from discharging their duties, then that's the end of the story.

33 In the present case, the underlying problem was the foot injuries but where the appellant continued to discharge his duties until the supervening infirmities of the spinal degenerative condition, generalised anxiety disorder and vasodepressor episodes resulted in him being totally incapacitated for work. On Mr Walsh's approach by relying on Daykin, Mr Ower submitted that that would wrongly result in the underlying problem relating to the appellant's feet to be added to the certificate even though it was not that problem which prevented him from performing the duties of his office.

34 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 where a police officer was physically hurt on duty and suffered an adverse reaction to stress. The issue focussed upon whether the physical injury to his neck was an infirmity which made him incapable of discharging the duties of his office; the argument essentially concerned the meaning of the word "office" in the section and the range of duties comprehended within it, whether duties of the office in which the officer was then employed or any other office, not lower in rank, in the police force available and in which it would be reasonable to expect the officer to be employed. 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: In essence what was required was that a determination be made as to whether the appellant would have been incapable from an infirmity of body or mind of discharging the duties of his or any other office which satisfied the requirements at the time of the resignation. ... While his Honour discussed concepts such as "the level of disability", "injury", "disability", "coping with selected police duties", his Honour failed to make any determination about incapability of discharging the duties of the appellant's office, or any other office as described ...

... 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.

35 In a dissenting judgment in Boland (although not on this point), I observed (97 IR at p 136) : I think it needs to be emphasised that a disabled police officer may properly be in receipt of an annual superannuation allowance even though he may be engaged in employment for reward, and handsomely so, outside the Police Service. The real question rather is whether the former police officer was incapable of discharging the duties of the office in the Police Service at the relevant time.

36 Applying those comments, 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.

37 Given, as the majority found in Boland (97 IR at p 161), that the word "incapable" is synonymous with "incapacity" to discharge the duties involved, it is necessary to identify the particular "infirmity" which is said to give rise to the incapacity to do the work concerned. As I understand it, the ordinary meaning of an "infirmity" is a weakness or ailment. The Shorter Oxford English Dictionary relevantly defines the word as "The condition of being infirm. 1. Weakness or want of strength; inability; an instance or case of this. ... 2. Physical weakness, debility, frailty, feebleness of body, resulting from some defect, disease, ... 3. A special form or variety of weakness; an illness, disease; now esp a failing in some faculty or sense". 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) : The appellant has the onus of demonstrating a specified infirmity of mind which prevents her from discharging the duties of her office. The word "infirm" is a concept which has been accorded a wide meaning. Dictionary meanings of the word are not helpful in providing a precise definition. The word was considered by Kekewich J in Re Buck Bruty v Mackey (1896) 2 Ch 727 at p 734 :

"Then, as regards 'infirmity', that means some permanent disease, accident, or anything of that kind, rendering the member an object deserving of the assistance of the society".

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.

38 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.

39 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. This seeming dilemma in terms of the construction of s 10B(1) arose during debate with counsel in a manner which conveniently describes it. The transcript recorded that debate as follows : HIS HONOUR : Can I just put this to you so you can consider it and you might like to think about it over lunch. One looks at a person on one approach in an holistic sense. There is only one person. And when they are engaged to do a job, they do that job. It may be that that person has half a dozen medical conditions. Let's say four medical conditions. None of which individually are sufficient to meet the test but collectively they do. Does that mean on your approach that none of them appear on the certificate. Even though collectively he just cannot do the job. 25 percent each.

HIS HONOUR : It is a question which necessarily arises I would have thought on your submission.

HIS HONOUR : ... can I just add this, as underlying my reasoning is the holistic approach. I mean one reads and I think this is notorious and one may take judicial notice of it; one reads about developments in medicine where doctors are saying it is necessary to apply the holistic approach to the person. Perhaps that is not so surprising; they can either do the job or they can't. Whether they cannot do it or whether they cannot do it because they have one leg and in infirmity of mind; I mean, do you only put one of them on the certificate or if neither are one hundred percent you put neither on and they carry on working.

OWER : The latter would lead to terrible injustice.

HIS HONOUR : If that be so, how does one properly construe the legislation. Do you put on the admitted problem about the feet only even though it might only be 10 or 20 percent on to the certificate as part of the holistic approach or do you leave it off because it is only ten percent but you put on the infirmity of mind because it is 100 percent but you leave off all the other problems this gentleman has. I am very troubled about the whole approach in terms of the statutory scheme ...

OWER : Your Honour, before the adjournment we were discussing the question as to percentage impairment of discharge of duty if I can roughly describe it that way. Your Honour, it is conceded by the respondent that if you do have a situation where multiple infirmities are not sufficient individually to make someone wholly incapable of discharging their duty but together are sufficient, in those circumstances your Honour that is the end of the inquiry. That can happen. And your Honour it follows from that, that the appellant would only need to show that he was incapable of performing some part of his duties to be able to have the impairment added to the certificate. Now, there is a problem with great respect in the decision of Daykin where some terms are intended to be intermingled terms, like partial incapacity, disablement, impairment. The important finding that Kavanagh J makes in Daykin is that she was satisfied as a matter of fact that the knee complaint gave rise to Mr Daykin being incapable of discharging his duties of office. Given that he was already totally incapable for other reasons of discharging his duties, then the consequence follows for the amended certificate.

... To take it back one step, the important finding I have already mentioned there of a finding because of the knee complaint per se, he was incapable of and the other areas of the judgment describe partial incapacity and that continued to muddy the water. But the important finding because that is the threshold question. I take on board what your Honour says about whether your Honour has to find that in this particular case the feet problems, do you have to find that Mr Woodlands is totally incapable or partially incapable. The answer to that question, partial is sufficient.

40 Having further considered this matter in the light of what I understand s 10B(1) of the Police Regulation (Superannuation) Act to mean, and in light also of the above debate with Mr Ower, I am well satisfied the concession made by him was very properly made. I accept it as correct and propose to apply it in a consideration of the present case.

41 Given the nature of the concession made in these proceedings and what I consider to be plainly a realistic and practical approach to the operation of the legislation, it seems to me for present purposes, and notwithstanding the references by both Mr Walsh and Mr Ower to the decision in Daykin, that it may be strictly unnecessary to deal further with counsel's submissions as to Daykin. This may be all the more so as I was informed her Honour's decision is under appeal to a Full Bench. Nevertheless, Kavanagh J in Daykin was faced, as I am, with a situation where the appellant there obtained a certificate under s 10B(1) in respect of a specified infirmity, major depressive illness with generalised anxiety disorder, and sought to add to the certificate two additional infirmities. Her Honour declined to add the one relating to the lower back but added the injury to the right knee even though such injury was found to result in partial incapacity. The similarity with the present case, therefore, will be apparent and it is difficult at the least not to make some comment. Her Honour's reasoning and conclusion may be seen from the following extracts from the judgment (in pars [52], [54]-[56], [61]-[64], [71]-[75]) : 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.

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 s 10B 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?

56 The knee condition can only be included as a specified infirmity for the purposes of the Act if it was on 5 February 1998 (and taking into account his last day of service was 31 October 1996) a reason for him being unable to discharge either his duties and any other office within the Police Service as defined by s 10B of the Act.

61 The respondent submits as the appellant was found incapable of performing any office within the New South Wales Police Service be it general duties, or restricted duties solely and fundamentally because of his infirmity of mind, it would be a result "bordering on the absurd" for the appellant to succeed in this claim on the basis that he could not perform his own duties nor any other relevant duties because of his orthopaedic condition. The respondent submits the orthopaedic injuries are to be treated in isolation for this assessment.

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.

63 The respondent submits as a matter of policy and practice it does not issue a certificate for multiple injuries unless each injury standing alone prevents the member from discharging the duties of his office and any other office in the police force. It submitted it is not sufficient that a condition gives rise to partial incapacity only. The respondent submits the correct approach is to isolate the orthopaedic injury to see if it alone renders the appellant incapable of performing any duties. The Court rejects this submission. It is wrong in law and the policy and practice of the Department is not the issue.

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.

71 ... 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 chondromalacia patella condition in the right knee such as to make him incapable of discharging the duties of his office.

42 I think the approach I have reasoned above in the present case, having in mind the concession made by Mr Ower, is consistent with the approach of Kavanagh J in Daykin and, with all respect to her Honour, I propose to adopt and follow it. This means that the remaining issue to be determined is the question of fact, that is, whether the appellant's foot injuries made him incapable, in whole or in part, of discharging the duties of office.

43 Within a short period of commencing general duties in Sydney as a constable in May 1965 after completing his cadetship, the appellant, then about 19 years of age, experienced sore feet while wearing the standard issue police footwear; his evidence was that he was on his feet a great deal in carrying out extensive foot patrols and guard duties. However, during a two year period ending in August 1968 in the army he noticed no ill effects from wearing boots because of their design which gave more support for his ankle and generally fitted better than the police boots. On returning to police duties, at a country location in Byron Bay, the appellant again experienced sore feet from wearing the police footwear and the pain spread across the bottom of his feet and up the ankles. When not on duty, however, the appellant had no problems with his feet even when jogging. The situation continued in much that way over the years as the appellant was required, and notwithstanding his promotion to sergeant on supervisory work, as he said, to be "on my feet a lot". Following his transfer to Ballina in 1987, again on supervisory work and general duties, the appellant consulted a podiatrist because the pain in his feet was getting "quite severe"; on advice, the appellant fitted inserts into his police boots which relieved the problem for a couple of years. On the recurrence of the pain, the appellant consulted another podiatrist who prescribed different inserts and again the pain abated for a couple of years until it became "intense". The appellant visited that podiatrist, Mr Coleman, on a few occasions to receive treatment for his feet but the pain persisted. The situation with the problems to his feet came to a head during 1995 after he was posted to Byron Bay as a supervisory shift sergeant when he described the condition of his feet as "terrible", "the pain was quite intense" and "it would get worse as the day went on". During the performance of his duties, the appellant said he had to remove his boots and sit down with his feet up to relieve the pain, although during off-duty periods when he wore good footwear with padding he did not experience the same difficulties; he was able to continue jogging. The problems only presented while he was wearing the uniform police boots. Up to this time, the appellant did not have any absences from work because of the condition to his feet, other than for a day or so when he suffered a blister on one of his heels.

44 The continuing foot problems led the appellant in or about November 1996 to consult Dr Crocker in Byron Bay who diagnosed painful feet aggravated by wearing police boots; on Dr Crocker's recommendation, he was absent from duty for a period of four weeks. On returning to duty and wearing the police boots, however, the problem returned and the appellant again consulted his podiatrist, Mr Coleman, in late-January 1997. Mr Coleman expressed the view that the appellant should change his occupational footwear to include certain specified features to make it similar to the features found in good exercise shoes. Attempts by the appellant to do so ran into difficulties when he applied to the Police Service for better quality footwear on the basis that, as he informed his Patrol Commander, "this situation has been ongoing for at least the last 5 years but has been getting progressively worse".

45 It seems the appellant received no response from the Police Service to his application until about 15 May 1997 when the Purchasing and Supply Branch requested he take part in a footwear trial by selected officers because "it has been made clearly evident that footwear problems experienced in the field are much greater than anticipated". In the meantime, the appellant's application for alternative footwear was deferred pending the outcome of the trial by the Purchasing and Supply Branch although, separately, the Workers' Compensation Branch of the Police Service advised the appellant to apply through his Patrol Commander for alternative footwear. Notwithstanding endeavours by the appellant to further his participation in the footwear trial, he was never contacted about it. Eventually, he obtained alternative boots which were easier on his feet than the standard issue but he still suffered from sore feet, particularly after standing for periods of time. In mid-1997, the appellant's feet became progressively worse. And so it was that on 22 September 1997 he commenced a period of annual leave but he did not resume duty as scheduled on 5 October 1997 due to stress, back condition and heart problems as well as the difficulties with his feet. The appellant never returned to duty in the Police Service and, as indicated earlier, he was medically retired on 2 July 1999.

46 Significantly, I think, in the appellant's application for medical discharge dated 19 January 1998 the four medical conditions claimed as supporting his incapability to discharge the duties of office by being hurt on duty were stress, numerous back injuries, heart condition affected by stress and "feet injuries created and developed over many years". As to the effects of his feet on the performance of police duties, the appellant gave extensive oral evidence which essentially was that the condition of his feet at the time of his medical retirement in July 1999 "made it impossible" to discharge his duties as a sergeant of police. His evidence in that respect was tested under cross-examination and he was quite forthcoming that the real problem arose from wearing the police footwear - he readily and frankly conceded he regularly played squash but, in doing so, wore the best sports footwear available; in contrast, at work he was required to wear uncomfortable boots and to stand for long periods of time so that there was no comparison between wearing police boots and squash shoes or joggers. The appellant maintained that although the problems with his feet started in the mid-1960's they had remained fairly constant at the present level for the last five years so that, as he said, "my feet were just so sore from having those boots on I just could not do the duties".

47 I interpose reference to the evidence of Dr Norris of the Medical Section of Health Services in the Police Service who dealt with the policy for the issue of non-standard uniform footwear for medical reasons. It is clear from that evidence that officers are able to wear non-standard footwear for medical reasons and recommendations by a podiatrist in that respect would be supported. However, the appellant's experience in being unable to satisfactorily obtain suitable footwear, which I accept, leads me to discount the evidence of Dr Norris as to the availability, in the appellant's case, of suitable alternative footwear.

48 I found the appellant's evidence to be forthright and frank and as providing an understandable explanation of the problems experienced with his feet. Whilst I accept the overall thrust of his evidence, including that the feet injuries represented an infirmity, I am not satisfied that such infirmity by itself made the appellant incapable of discharging the whole of the duties of office. In other words, I find, on the appellant's evidence and particularly having in mind his sporting activities and work on his property, that the foot injuries represented a partial infirmity. It is unnecessary in performing the present task to quantify the degree of incapacity involved, only that some existed at all relevant times sufficient to prevent the appellant from discharging some of the duties of a police officer. His evidence in that respect clearly was he was unable to do so and I accept that. Even so, I would assess the degree of incapability at a not insignificant level and certainly such in combination with his spinal, anxiety and heart infirmities as to make him in a whole sense incapable of discharging the duties of office in the Police Service. The medical evidence in the proceedings, principally that of Dr Sherry, confirms the finding otherwise made on the appellant's medical condition and fitness for employment.

49 I have outlined earlier in these reasons the key aspects from the reports of the various medical practitioners and I do not propose to repeat them. Suffice it to say that it is plain, in my view, that the appellant presented on an objective basis with an infirmity of body relating to his feet. In the report dated 5 June 2000 of Dr Patrick, relied upon by the appellant, the infirmities related to the appellant's feet problems resulted in "a permanent loss of efficient use of the right leg (lower limb) at or above the knee, including loss below the knee, of 16%; and of the left leg below the knee, including loss of use in the foot, of 6%"; Dr Patrick's report dated 1 May 1999 was relied upon by the respondent in its case and a similar opinion was expressed, although the percentages differed slightly. Dr Patrick expressed the view that the appellant would continue to be permanently incapacitated for his former work as a police officer, as a result of a combination of the work-related injuries to his back, neck and feet, and was "permanently incapacitated for physical work involving ... being on his feet for long periods of time without the ability to rest from time to time".

50 The sharp conflict in the medical evidence was as between the opinions expressed by Dr Sherry, on the one hand for the appellant, and on the other for the respondent by Dr Bornstein. In his principal report of 7 June 2000 after examining the appellant on 5 June 2000, Dr Sherry diagnosed "Haglund's bump on both heels with calcification of tendo Achilles" requiring treatment, including possible surgical intervention; although the prognosis was generally guarded with further improvement being unlikely, Dr Sherry estimated the permanent percentage loss of use of the left leg at or below the level of the left knee at 20% and for the right leg of 10%. Dr Sherry expressly disagreed with the opinion of Dr Bornstein and affirmed his own view that the appellant's foot problems made it difficult for him to wear the police uniform shoes required. Dr Sherry maintained his opinion notwithstanding the appellant's engagement in sporting activities, such as squash.

51 Dr Bornstein examined the appellant on 7 August 2000. In his report of 11 August 2000 he noted the "plethora of physical complaints" of the appellant but focussed upon the foot problems. Although Dr Bornstein did not consider it was the appellant's feet which caused him to cease duties, he did base that view on what he perceived to be the major problem with the applicant, namely, that "of a psychological nature which is well out of my field". In any event, Dr Bornstein did recognise, significantly in my view, that objectively the appellant had an ossification of the Achilles tendon (a Haglund's bump) to such an extent that he had a problem with an underlying foot condition so that "he would have been unfit for work of an exceptional nature on his feet due to a painful condition in the foot".

52 Balancing the evidence given by Dr Sherry and Dr Bornstein as best I can in terms of reason and logic, particularly in light of the appellant's evidence and the other medical evidence, I prefer the evidence of Dr Sherry. I do so having in mind also Dr Sherry's particular specialty as an orthopaedic surgeon in foot and ankle problems as against Dr Bornstein who was not familiar with the term of "Haglund's bumps", no doubt because he was a general orthopaedic surgeon and did not specialise in foot and ankle problems; he had not made any specific studies of footwear. I do not accept Dr Bornstein's view, contrary to that of Dr Sherry, that the appellant's problems with his feet could be addressed by the wearing of appropriately designed inserts and insoles within boots.

53 In the result, I conclude that the appellant's appeal should succeed. I am satisfied that the feet injuries suffered by the appellant represented an infirmity of body, in the sense of a partial incapacity, which made him incapable of discharging the duties of his office within the meaning of ss 8(1) and 10B(1) of the Police Regulation (Superannuation) Act. It follows, in my view, that the certificate under those sections issued by the respondent on 30 June 1999 should be amended by adding the specified infirmity relating to the appellant's "feet injuries" so that the respondent's refusal on 8 October 1999 to so amend the certificate cannot stand.

54 I make the following orders - 1. The appeal is allowed. 2. The determination made by the respondent on 8 October 1999 confirming the decision of the Police Superannuation Advisory Committee to exclude the condition of "feet injuries" from the appellant's certificate of incapacity issued pursuant to s 8(1) and s 10B(1) of the Police Regulation (Superannuation) Act 1906 is set aside. 3. The certificate issued by the respondent in respect of the appellant on 30 June 1999, in accordance with the decision of the Police Superannuation Advisory Committee, is amended from that date by the addition thereto of the specified infirmity relating to the appellant's feet injuries, namely, "Haglund's bumps in both feet resulting in retrocalcaneal bursitis". 4. The respondent is to pay the appellant's costs of and incidental to the appeal in an amount as agreed or, failing agreement, as assessed. _____________________

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