District Court New South Wales Medium Neutral Citation: Connor v SAS Trustee Corporation [2021] NSWDC 758 Hearing dates: 26 October 2021-27 October 2021 Date of orders: 27 October 2021 Decision date: 27 October 2021 Jurisdiction: Civil Before: Neilson DCJ Decision: See [100] Catchwords: POLICE – SUPERANNUATION – Whether plaintiff incapable from a specified infirmity of body of discharging the duties of his office at the time that his resignation took effect on 17-4-1999 P commenced as a junior trainee on 25 February 1980 and was attested as a probationary constable on 6 April 1981. On or about 1 November 1997 he commenced to work as a sergeant at Maroubra Police Station, Eastern Beaches Local Area Command. On a shift between 22 and 23 May 1998 he injured his lower back and experienced sciatic pain. He returned to work on restricted duties on 23 November 1998 and on full duties on 11 January 1999. He gave notice of his resignation on 18 March 1999. He did not apply for a superannuation allowance until 15 October 2018. His application was rejected by D on 28 November 2019. Whether effects of injury of 22/23 May 1998 presented at time of resignation and thereafter. Whether plaintiff remained incapacitated for duties of his office until the present time. Whether P remained incapacitated for duties of his office until the present time. Whether the Workers Compensation Act 1987, section 47 applies in proceedings under the Police Regulation (Superannuation) Act 1906. Whether section 47 otiose. Applicable law: that at the resignation took effect – at [88]. "Incapability": anachronistic noun – use of "incapacity" or "disability" preferred. Legislation Cited: Police Regulation (Superannuation) Act 1906 (NSW) Workers Compensation Act 1987 (NSW) Cases Cited: Day v SAS Trustee Corporation [2020] NSWDC 381 Day v SAS Trustee Corporation [2021] NSWCA 71 DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22 Locker v SAS Trustee Corporation (No 2) [2014] NSWIRComm 14 Morley v SAS Trustee Corporation [2007] NSWIRComm 90 SAS Trustee Corporation v Ainsworth [2011] NSWIRComm 128 SAS Trustee Corporation v Cox [2011] NSWCA 408 Texts Cited: Professor CP Mills, Workers Compensation (New South Wales), 1st edition, Butterworths, 1969 Professor CP Mills, Workers Compensation (New South Wales), 2nd edition, Butterworths, 1979 Category: Principal judgment Parties: Plaintiff Phillip Bruce Connor Defendant SAS Trustee Corporation Representation: Counsel P.M. O'Rourke - Plaintiff T.M. Ower - Defendant Solicitors Ms S. McLean of Walter, Madden, Jenkins Solicitors – Plaintiff Mr L. Doyle of Mark Bendall Senior Lawyer, SAS Trustee Corporation - Defendant File Number(s): RJ00194/20 Publication restriction: Nil Judgment 1. HIS HONOUR: The plaintiff, Mr Phillip Bruce Connor, is a former sergeant of police. He was attested as a probationary constable of police on 6 April 1981, and thereupon became a contributor to the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906 ("The Act"). On 18 March 1999 the plaintiff gave notice of his intention to resign from the New South Wales Police Force with effect on 17 April 1999 and he did so. 2. On 2 May 2018 he signed an application for a hurt on duty pension pursuant to s 10B(2) of the Act. That was submitted to the defendant under cover of a letter dated 15 October 2018 by his solicitors. On 28 November 2019 the plaintiff's application was considered by the Police Superannuation Advisory Committee ("PSAC") which is constituted under s 2H of the Act, pursuant to a delegation from the defendant under ss 21 and 2J of the Act. PSAC declined to certify pursuant to s 10B(2) of the Act that the plaintiff was incapable from a specified infirmity of body or mind of discharging the duties of his office at the time of his resignation on 17 April 1999. The plaintiff, considering himself aggrieved by that decision, made an application to this Court on 4 June 2020. Early Career 1. The plaintiff was born in December 1961. He is currently 59 years old. He attended Epping Boys High School and obtained the Higher School Certificate when he was 18 years old. He immediately sought to join and was accepted into the New South Wales Police Force. He commenced as a junior trainee on 25 February 1980 and remained a junior trainee until 5 April 1981. On the following day he was attested as a probationary constable of police. His first appointment as a probationary constable of police was to the Glebe where he worked both at Balmain Police Station and Glebe Police Station. During his period at the Glebe, he was seconded for a period of time to the Regent Street Police Station in southern Sydney. 2. Between 12 September 1982 and 2 November 1985 he worked essentially as a police motorcyclist. Initially he was in the Inner City Traffic Branch; then was posted to the North Sydney Highway Patrol. 3. On 6 November 1985 he was transferred to Eastwood where he began to work in plain clothes in criminal investigations. On 15 May 1988, he joined the Major Crime Squad in the North West Region of this State. Shortly after that appointment, he was designated as a detective. He worked with the Major Crime Squad until 9 April 1994. On the following day he took up general duties at Blacktown where he worked until 22 November 1995. On the following day he took up a position at Randwick in general duties as a shift supervisor. He was appointed a sergeant of police on 23 November 1995 coinciding with his transfer to Randwick. 4. He worked as the patrol tactician at Randwick in the role of an Acting Senior Sergeant between 21 April 1997 and 26 June 1997. According to police records, he was transferred to the Eastern Beaches Local Area Command on 1 July 1997. However, according to the chronology presented to me which ties in with the plaintiff's recollection, he commenced work at Maroubra on 1 November 1997. He worked there as a Sergeant. Maroubra 1. There were available to him at Maroubra three different positions. They were the station supervisor, the mobile supervisor and the custody manager. The plaintiff told me that as a junior sergeant he spent 75% of his time as the mobile supervisor. It appears that the more senior sergeants were given the role of being station supervisor and custody manager. Maroubra was a 24 hour per day police station, the headquarters of the Local Area Command. 2. The plaintiff worked 12 hour shifts, three shifts at a time followed by a period of rest, followed by another period of three shifts. The day shift was from 6am to 6pm; the night shift was from 6pm to 6am. At busy times, namely Friday and Saturday evenings, there was an overlapping shift from 3pm to 3am. It would appear from the evidence that the plaintiff spent the vast majority of his time as a mobile supervisor working on the night shift. The plaintiff told me that between 75% and 80% of his time was spent working on the night shift. He commenced work in fact half hour before 6pm when there was a meeting with the officers of the outgoing shift to discuss what work was in progress and, in essence, to effect a handover of the work from the day shift to the night shift. 3. On each night shift there were three mobile car crews available; that is three cars each containing a driver and an observer. In addition, the mobile supervisor drove a motor vehicle and was available on call, essentially, to answer requests for assistance from the three car crews, but when they were all busy, the mobile supervisor acted as a fourth resource. When that was necessary, he would have to work on his own. On the busy evenings, that is Friday and Saturday nights, there might be five or six mobile car crews available, plus the mobile supervisor. 4. The plaintiff told me, and there was no reason not to believe him in this regard, that of each 12 hour shift he spent between eight and ten hours on the road, so to speak, or in the field and the rest of the time was spent at the police station attending to administrative activities, as well as the necessary paperwork that any police officer is required to complete because of the work he has done during any particular shift. 5. The plaintiff frequently drove a motor vehicle described as EB14. EB refers to "Eastern Beaches" which is the name of the Local Area Command that was governed from the Maroubra Police Station. Mr Connor referred to that vehicle as his "usual vehicle". It was a Ford station wagon and it was driven by him whenever he was on the road or working in the field. 6. The physical activities performed by him amounted to more than merely sitting in a police station attending to administrative and paper work; or doing other work in the police station; or merely sitting in the car either driving around or patrolling the Local Area Command. He would be called to assist one of the car crews, or a number of them, depending on what emergency or job was in progress. Often more than one car crew needed to attend domestic violence incidents where it was necessary for police to restrain warring partners; and often two people might be required to restrain one person; especially if he or she was intoxicated. 7. The plaintiff involved himself in such activities on a fairly regular basis. He also told me that, for example, if the other car crews were busy he might himself be called on to attend a domestic violence incident and would have to deal with the warring or arguing partners himself; often having to restrain one or other of them; and, for example, performing an arrest which might involve wrestling in order to handcuff the person being arrested. He would often need to attend upon licensed premises when there would be "brawls" and he also needed to attend places frequented by many people, in particular young people, when there were other breaches of the peace. 8. In particular, the plaintiff referred to having attend "jobs" at Maroubra Beach and the Maroubra Hotel, and also at Coogee beach and the various hotels that front on to Coogee Beach. He was himself involved in ejecting patrons from hotels who had been refused service because of intoxication or rowdiness or something similar. He also was required to attend the beaches when there were assaults and something that might be seen to be an affray where young people, often intoxicated, were all into each other at the beach rather than at the hotel. The plaintiff told me that when he was working in the Eastern Beaches Local Area Command he often experienced antagonism between "backpackers" and "the locals". 9. I accept that the plaintiff's normal work as a mobile supervisor required him to be actively involved in dealing with offenders, arresting them; often needing to wrestle them in order to handcuff them; sometimes only to give chase to them; and participating in seeking to quell brawls and other disturbances. This was not a merely supervisory role, but an essential element of it was "hands on policing". Training 1. The plaintiff told me that over the years he had attended a number of courses. They included a supervisor's course which he attended at the Goulburn Police Academy. He also did an Arson Awareness course, a number of seminars concerning various forms of homicide; a station audit course; and an assessment centre for duty officers. Indeed, when he was at the Eastern Beaches Local Area Command, the plaintiff worked as an Acting Inspector between 8 March 1998 and 28 March 1998; a period of some 20 days; and also between 11 and 13 March 1999; a period of three days. It can be seen that after his appointment to the Eastern Beaches Local Area Command, he performed work as an Acting Inspector being in charge of the patrol for certain periods of time. Incident 22 to 23 May 1998 1. The plaintiff was involved in an incident which occurred between 22 and 23 May 1998. 22 May 1998 was a Friday 23 May was obviously the succeeding Saturday. This was a night shift. He was the mobile supervisor on that shift. He was driving his usual vehicle, EB14. He noticed a problem with the vehicle. The driver's seat was moving because there was a loose bolt holding the seat to the chassis of the vehicle. The seat moved when he was turning corners to the right and also it moved forwards and backwards when the plaintiff was either accelerating or decelerating. That in the course of his work he found discomforting. 2. About halfway through that shift an incident occurred. The best description of it is given by the plaintiff in a formal report dated 27 July 1999 which can be found on pp 16 and 17 of Exhibit E. It is this: "On the evening of Friday 22 May 1998 I was rostered to perform duties as mobile supervisor for the Eastern Beaches LAC between the hours of 6pm to 6am. I was driving EB14, a Ford station sedan registered number UND 184, serial number 47750. During the course of the shift, I noticed that the driver's seat appeared to be broken. The seat section of the seat appeared to slope to the left side at the rear near the back rest. At about 11.55pm I was patrolling the area around the Coogee Bay Hotel at the intersection of Coogee Bay Road and Arden Street. I was hailed by one of the security officers from the hotel. I spoke with him for a short while and then went to speak to one of the hotel patrons that was standing at the front entrance of the hotel. That person, Andrews Keys became upset and ran away north in Coogee Bay Road. I ran after him and caught him outside the bottle shop. A short struggle took place and he was subdued. I then contacted the police radio and had one of the Eastern Beaches Trucks attend to remove Keys from the area. Senior Constable Maddox and Constable Milad attended and removed Keys. Event number 24921632 relates. (Attached). I completed my shift and went home. I woke about 12.30pm on the afternoon of Saturday 23 May 1998. At that time I had a slight back ache. This continued until Monday 25 May 1998 when I attended a chiropractor for treatment. I returned to work on Tuesday 26 May 1998 from rest days and attended the Assessment Centre at Parramatta. During the day I was suffering back pain and also pain in both legs. I returned to working that evening and informed Inspector Zimmer that I was going on sick report. Since that time I have seen my local doctor and been referred for further treatment by Dr Michael Solomon, an orthopaedic surgeon. I am having physiotherapy three times a week. My current medical certificate expires on 8 August 1998." 1. The attached event refers to damage that Mr Keys caused to the police station when he was released from police custody. He struck a glass panel of the sliding front door with a closed fist. That caused the glass panel in the door to shatter. The incident of course is instructive about the plaintiff's duties. Clearly, he was a shift supervisor, but on this occasion he was answering a request from a "bouncer" at the Coogee Bay Hotel to deal with a patron who was causing a problem. The plaintiff was alone. He had to give chase to the patron and to subdue him and call for assistance; and eventually a police "truck" came and took him to the police station. The plaintiff said that the man needed to be dealt with as an intoxicated person. 2. The plaintiff told me that in the course of the struggle that he had with the offender, the offender appeared to be falling backwards. The plaintiff grabbed the fellow by the front of his clothing. If he were wearing a jacket he would have been grabbing him by the lapels and he then eased him to the ground, requiring the plaintiff to bend forward some 90 degrees. Whether that was bending to one side or straight ahead, the plaintiff did not tell me. 3. According to the medical evidence I have read, the events of 22 and 23 May 1998 represent the genesis of a low back problem which still affects the plaintiff. The plaintiff did tell me that some time in 1983 he had some lumbar back pain when he was working as a police motor cyclist. He took some sick leave in respect of that complaint of lumbar pain for which he saw a general practitioner at Epping. However, there is no suggestion that between November 1983 and May 1998 the plaintiff had any problem with his lower back. The earlier complaint of back pain can be seen as limited to a low back strain, probably when bending forward driving a police motorcycle. Treatment 1. The chiropractor that the plaintiff saw was Ms Shirley George of Kensington. He saw her on Wednesday 27 May 1998. The plaintiff had attended the Police Assessment Centre on Tuesday 26 May 1998. From the plaintiff's evidence it seems that the plaintiff had rostered days off on Sunday 24 and Monday 25 May 1998. The plaintiff saw Dr Zabow of Randwick. The plaintiff was referred by Dr Zabow for plain X‑ray of his low back. That was reported by Dr Colin Franklin on 2 June 1998. That report is this: "There is moderate narrowing of L5/S1 disc with mild reactive change at L5/S1. The remaining vertebral bodies are normal. The remaining discs are normal. The oblique views shows the facet joints to be normal and the pars are intact. Both sacroiliac joints appear within normal limits." Dr Franklin concluded the plaintiff was suffering from moderate L5/S1 degenerative change. 1. I point out that the human spine matures about ages 26, 27, 28. Thereafter it can go on to degenerate. The first area of the low back to degenerate is generally the L5/S1 level, which is the level which bears most of the effect of twisting and bending forward. Generally bony reactive changes such as those shown on the plain X-ray of 2 June 1998 are secondary to degenerative disc disease, and the plain X-ray indicates to me that the plaintiff's L5/S1 disc was probably degenerate as at 2 June 1998; and would have been degenerate for at least six months, if not, longer prior to that time. The process of disc degeneration with ensuing osteoarthritic change can be described as osteoarthritis of the low back or degenerate disc disease or lumbar spondylosis. The terms can be used interchangeably. 2. Dr Zabow sent his patient to Dr Michael Solomon, an orthopaedic surgeon. It is to be noted that Dr Solomon's speciality is hip and knee surgery. The plaintiff presented to Dr Solomon with low back pain radiating down the left leg. The history recorded by Dr Solomon continues thus: "About three weeks ago he was sitting in a broken police patrol vehicle doing duty all night. The following day he developed increasing pain in the lower back which radiated down the left leg. He has no bowel or bladder symptoms. His pain is mainly when sitting for prolonged periods of time. Standing for long periods also aggravates his discomfort. Rest does help and he feels he is a little better now than he was three weeks ago. There are days, however, when he has acute exacerbations with the pain radiating down the posterior aspect of his left thigh and calf." On examination Dr Solomon found organic signs of disability. He noted some para‑spinal muscle spasm. Bending to the right produced symptoms down the left leg. Straight leg raising was only 40 degrees on the left compared with 70 degrees on the right. Dr Solomon found a positive sciatic nerve stretch test on the left side. Dr Solomon suspected that the plaintiff had some mild nerve root impingement causing his symptoms and he arranged for the plaintiff to have a CT scan. 1. That was reported by Dr Van Rooijen. Of the two lowest levels of the lumbar spine, the radiologist said this: "At the L4/5 level there is a central posterior disc protrusion which has an AP diameter of approximately 8 millimetres. This is indenting the anterior aspect of the thecal sac, with moderate reduction in its AP diameter. There does not, however, appear to be nerve root compression, with epidural fat present around the L5 nerve roots in the lateral recesses. There is no encroachment on the neural foramen at this level. At the L5/S1 level, there is a left para‑central disc protrusion measuring 8 millimetre in diameter. This indents the anterior aspect of the thecal sac to the left of the midline and is seen to be compressing the left S1 nerve root in the lateral recess. There is preserved fat surrounding the right S1 nerve root." The radiologist went on to diagnose an L5/S1 left para‑central disc protrusion which appeared to be compressing the left S1 nerve root in its lateral recess. 1. Dr Solomon saw that CT scan and he thought it was consistent with what he found on examination. He prescribed physiotherapy and a review of the plaintiff in two weeks further time. Physiotherapy commenced on 16 June 1998 under Mr Ellis Janks. On 29 June Dr Solomon saw the plaintiff again and that the plaintiff had persisting symptoms. On this occasion the straight leg raising on the left was limited to 30 degrees. He took the liberty of referring the plaintiff to his colleague, Dr John Stephen, who is a spinal specialist. That was an appropriate referral. 2. Dr Stephen saw the plaintiff on 2 July 1998. He noted the plaintiff walked with a left sided limp. He stood with a slight list to the left. He found the plaintiff to be mildly tender in the left buttock. The femoral stretch test was negative. Straight leg raising on the right was about 75 degrees and painless, but on the left side it was 40 degrees with a reproduction of sciatica. The left ankle jerk was absent. The absence of a left ankle jerk is an objective sign of nerve root compromise, no doubt caused by a disc protrusion at the L5/S1 level. He saw the CT scan and agreed that it showed a lumbosacral disc protrusion with S1 nerve root compression. 3. The plaintiff was to remain under Dr Stephen's care and the care of Dr Zabow. On 18 August 1998 the plaintiff was reviewed by Dr Stephen. He was still off work. Dr Stephen noted on that occasion "his pain has pretty well disappeared". Nevertheless, on examination Dr Stephen found muscle spasm; no change in the straight leg raising test but still an absence of a left ankle jerk, and, on this occasion, some wasting of the left calf. Again, wasting of the left calf is an objective sign of organic disability, normally caused by ridicular symptoms from the low back. Despite the plaintiff having very little, if any, pain, his physical signs of organic disability were increasing. Quite frankly many other persons suffering the pathology diagnosed by Dr Solomon and Dr Stephen would be complaining of much greater pain than the plaintiff was. 4. The plaintiff returned to see Dr Stephen on 29 September 1998. The plaintiff told the doctor he is still troubled by pain, but not constantly, but when he was troubled by it, it was "significant". Again, Dr Stephen found muscle spasm; flexion was only one third at best and straight leg raising on the left side was limited to 30 degrees. He went on to say this: "Mr Connor seemed to be going forward last time I saw him but he's marking time now. I think at four and a half months he should be thinking seriously about having the fragment of disc that is compressing his nerve root removed. He has heard fairly sobering stories about this and doesn't wish to commit himself as yet!" 1. I should interpolate at this stage that the usual mechanism of a disc protrusion is the tearing of the annulus fibrosus of a disc allowing the softer tissue within the annulus, the nucleus pulposus, to be extruded through the tear and to impinge upon the theca or nerve roots or other neural structure. This is what Dr Stephen was referring to in the last passage that I have quoted. Normally when there is extruded disc material, surgery can be practiced to remove the extruded disc material. 2. On 20 October 1998 Dr Stephen noted that the plaintiff was still troubled by left sciatica and he made arrangements for the plaintiff to be admitted to the Mater Private Hospital on 11 November 1998 in order to undergo surgery on the lumbosacral disc. The plaintiff was properly referred to the Police Medical Officer who saw him on the following day. After setting out the history of what had happened, the Police Medical Officer noted the plaintiff was walking between 2 and 3 kilometres per day; that he was doing stretching exercises; that he was assisting his girlfriend do paperwork in her business but that was limited, and that he could only sit for between 20 and 30 minutes. On examination the police medical officer found a slight antalgic gait favouring the left leg, and a greatly reduced range of movement with pain radiating down the left leg. Straight leg raising on the left was limited to 30 degrees; and there was absence of the left ankle jerk. The Police Medical Officer, like Dr Stephen, diagnosed an L5/S1 disc protrusion with nerve root involvement and he certified the plaintiff unfit for work. 3. Dr Stephen's next report is dated 13 November 1998. It says this: "When I saw Mr Connor, the night before his proposed operation, he confessed himself totally free of pain for two and a half weeks. I therefore gave him the proverbial hoof, that is told him that there was no indication for operation. I shall repeat his CT scan (he wants to know what has happened to his prolapse) and see him in a couple of weeks." The surgery was cancelled. The further CT scan was performed on 13 November 1998. The radiologist on this occasion was Dr Kociumbas. He reported the finding at L5/S1 in this fashion: ‑‑"the extruded disc para‑centrally extending onto the left side inferiorly persists and also appears somewhat more prominent; and probably may have extruded a little further inferiorly, compromising the S1 nerve root within the spinal canal. The L5 nerve roots are seen to exit just above this extruded disc without obvious compromise." The disc lesion clearly had not gone away; albeit the plaintiff was free of symptoms for two and a half weeks prior to the surgery that Dr Steven had intended performing. 1. Dr Stephens' next report bears the date 16 November 1998. It is this: "I saw Phillip today with a new CT scan. As I explained, last week he was symptomless and although he had some restriction of straight leg raising on the left side, I decided to not go ahead with operation. Today he remains symptomless. His recent CT scan shows no significant change in the size of the disc prolapse. However, as explained to him, this was irrelevant in terms of what ought to be done and he understands this well enough. I shall see him again in two months." The police force then decided to offer the plaintiff restricted duties. Return to work 1. When Dr Stephen saw the plaintiff on 16 November 1998, certain advice was given to him and/or the police medical officer that he may be fit for a graded return to work. The rehabilitation section of the New South Wales Police decided to offer the plaintiff restricted duties commencing on 23 November 1998. He was required to work for two hours a day for three days each week. The restricted duties were highly restricted: the plaintiff was not permitted to wear his appointments; he was not to wear police uniform outside of the police station; he was not permitted to drive marked police vehicles; he was not to physically handle prisoners or intoxicated persons; he was not to work alone in public areas of the police station; there was to be no bending involved or lifting anything greater than 5 kilograms; he was not permitted to sit or stand for extended periods; he was not permitted to work on a night shift. The plaintiff commenced doing those duties. 2. He was reviewed by Dr Stephen on 11 January 1999. Dr Stephen thought the plaintiff was fit to resume his normal duties. He, however, suggested that the plaintiff be provided with a Cordura belt and accessories as they were more flexible and lighter than the standard issue police leather appointments belt. It would appear that advice was also given to the plaintiff to wear lighter boots. That resulted in the plaintiff's returning to full work with a commencement date, according to the records I have, of 11 January 1999, the same day as Dr Stephen gave the plaintiff a clearance to return to his normal work as a mobile supervisor. Dr Stephen reviewed the plaintiff on 20 January 1999. Dr Stephen noted that he was back at work on full duties but, nevertheless, wanted an assessment of disability, presumably for lump sum compensation, and Dr Stephen said that he would do so when that was required of him. Resignation 1. On 18 March 1999, having performed full duties for approximately two months, the plaintiff submitted a notice of his intention to resign. The formal resignation can be found on p 33 of Exhibit B. The substance of the report he made is this: "On Tuesday 16 March 1999, I made the decision to resign from the New South Wales Police Service. As a result of this decision I am now giving the necessary four weeks' notice. My last day of duty will be 17 April 1999". The document itself gives no reason for the plaintiff's resignation. 1. The plaintiff in his oral evidence was asked why he resigned. He told me that it was a sudden decision. He told me that he felt overwhelmed by the fact that he could not do what he was supposed to do as the mobile supervisor. He told me that he was trying to avoid certain types of work such as attending domestic violence incidents, brawls at hotels or on a beach because he was concerned that he could hurt himself again. The plaintiff told me in his evidence of two instances which drew to his attention the problems that he was concerned about. They were also conveyed by the plaintiff to Dr Malcolm Pell, a neurosurgeon, who examined the plaintiff at the request of his solicitors on 21 April 2021. The relevant part of Dr Pell's history is this: "There was a brawl at the Beach Palace Hotel, Coogee Hotel. After parking his vehicle in the adjacent car park, he tried to quickly get out of the car and in doing so he twisted and experienced acute severe back pain and fell, landing on the bitumen of the car park. He lay there for three four minutes and as the pain improved he was able to get up. By this time, however, the brawl had finished. He finished his shift but didn't report the incident. He noted a second incident when a suspect was being chased by fellow police officers in the park in Arden Street, Coogee. He joined in the chase, however, the suspect had been detained by other officers and they were struggling to detain him. Sergeant Connell joined with them to detain the suspect and he again felt severe low back pain". It is to be noted that although the plaintiff told me of those two incidents and certainly gave a history of them to Dr Pell, this was some 22 years after he resigned and no similar history is recorded by any other medical practitioner in the interim. The inference that the defendant asked me to draw is this was some form of recent invention. I shall turn to issue shortly. 1. The history recorded by Dr Pell continues in this fashion: "Sergeant Connor said that he had trouble sitting in a car, as this aggravated his pain. He was concerned about further injuries and also felt he was not actively assisting his colleagues so he decided to resign from work". That is also a history that the plaintiff gave in his evidence. 1. The question is: can I accept those statements as being accurate? I do accept them as being accurate. One thing I sought to make clear when setting out the histories recorded up until this time was that the plaintiff was not a man who complained a lot. With a disc prolapse of the lumbosacral level, he was entitled to make many complaints, as most people do who have the same pathology. The plaintiff did not. From subsequent histories, it also appears to me that he was not one prone to making complaints and had an attitude of getting on with life rather than sitting back and ruminating upon what had happened to him in the past. In essence, the plaintiff was an uncomplaining man, but when pressed to justify his behaviour he gave me and Dr Pell the histories of the two incidents recorded by Dr Pell and also of the circumstances generally affecting him when he was seeking to continue working as the shift supervisor. I accept the plaintiff's evidence as to what motivated him to resign. I accept that he was finding it difficult to do the practical policing that his job required of him: for example, dealing with apprehending suspects; handcuffing them; giving chase if they would not submit to arrest; intervening in things such as brawls or domestic arguments. I also accept that prolonged sitting in a car would also be troublesome for a man with a low‑back condition such as a disc protrusion at the L5/S1 level. 2. The plaintiff was challenged by the defendant about why did he not choose to be medically retired and the inference to be drawn from the cross‑examination is that the plaintiff must have known that he had the ability to seek medical retirement but failed to do so, indicating that he did not feel that he was disabled to the extent that he could seek a medical discharge. There was clearly a suggestion of cynicism in that submission and also incredulity that the plaintiff, having been in the police force since 25 February 1980, did not know in 1999, 19 years later, of the ability to seek a medical discharge. However, I accept that the plaintiff acted impetuously, as he said he did, without giving the matter much thought, and when it was drawn to his attention later that he could have sought a medical discharge, he did not think further of it and, clearly, from the cross‑examination of both the plaintiff and a current detective, Ms Zappala, neither appeared to be aware that it was possible to seek a "medical discharge" after in fact having retired or resigned from the police force. S12D Claim 1. Yesterday, I failed to mention the fact that the Commissioner of Police accepted that the back injury that the plaintiff suffered during the shift between 22 and 23 May 1998 was caused by the plaintiff's having been hurt on duty. He was paid hurt on duty benefits for the time that he had off work prior to returning to work on restricted duties. His hospital, medical and like expenses were also paid by the police force. 2. On 23 January 1999 ‑ that is, after returning to his normal work on 11 January 1999 ‑ the plaintiff wrote to the police association seeking legal assistance to make a claim under s 12D of the Act for "workers compensation". Mr Mathew Treharne of Messrs Walter Madden Jenkins was assigned to represent the plaintiff. On 15 April 1999, the police force received from Mr Treharne a letter bearing the date 12 April 1999 making a claim for benefits equivalent to those under s 66 and 67 of the Workers Compensation Act 1987. In that letter, Mr Treharne sought the provision of medical reports from the records of the Police Service. 3. On 27 April 1999, Dr Stephen wrote to Mr Treharne a medico‑legal report in response to a letter from Mr Treharne of 17 March 1999. It is noteworthy that Dr Stephen merely referred to the plaintiff's work in the police force as a "supervisor". In that letter, he certified the plaintiff as "fit for full employment as noted above". What Dr Stephen thought a sergeant of police who was a "supervisor" did is unknown. In the medico‑legal report, Dr Stephen again offered the diagnosis of a left‑sided lumbosacral disc prolapse producing left‑sided sciatica in the distribution of the S1 dermatome. Dr Steven expressed the view the plaintiff had a 15% permanent impairment of his back and a 5% loss of efficient use of his left leg at or above the knee. 4. Mr Treharne also qualified Dr Denis King, a consultant orthopaedic surgeon. Dr King examined the plaintiff on 5 July 1999 and prepared a report bearing date 8 July 1999. Put shortly, Dr King agreed with Dr Stephen's diagnosis and also agreed with Dr Stephen's assessment of the impairment of the plaintiff's back and the loss of efficient use of his left leg at or above the knee. Dr King recorded this occupational history: "At the time of the onset of symptoms, Mr Connor was employed as a sergeant in the New South Wales Police Service having joined in 1980. His work activities consisted of general duties mainly in the nature of patrolling in a police car together with some desk/administrative duties. His hours of work were for 40 hours per work on a rotating shift basis". The doctor did not record any history of the practical, physical work that the plaintiff did as the mobile supervisor. Dr King also recorded that the plaintiff resigned "for reasons unrelated to his back condition". What those reasons were, he does not record. However, in the following sentence he said this: "He has since been assisting his partner in a retail business but intends to apply for a return to the police service in the near future". One would not infer from that sentence that the plaintiff told Dr King that he resigned in order to assist his partner in her retail business, but one would infer from the second clause of the sentence that the plaintiff was thinking of going back to the police force for what may well have been financial reasons. 1. The inference to be drawn from Dr King's report is that he thought the plaintiff was fit to do his old work to which he had returned prior to his resignation. Considering what he thought the plaintiff's duties involved, that is to an extent understandable. Of more importance, from my point of view, is what the doctor found when he examined the plaintiff. At the commencement of his physical examination of the plaintiff, Dr King reported that the plaintiff walked "with a somewhat unusual gait with external rotation evident in both lower limbs and an apparent tendency to drop foot". The doctor does not say whether the apparent tendency to "drop foot" was bilateral or not but a drop foot is generally a consequence of very severe radiculopathy in the lower leg and foot from major problems in the low back. Dr King went on to note that forward flexion movement was limited to 60 degrees and that there were similar restrictions evident when the plaintiff was sitting up from the supine position. He also noted the extension was limited to 20 degrees. On straight leg-raising, there were 80 degrees on the right side but only 50 degrees on the left side and a positive sciatic stretch test. That, again, as I pointed out yesterday, is an objective, organic sign of disability, a persisting problem affecting the S1 nerve root from the low back. He also measured both the thighs and calves. According to Dr King, the thigh circumferences were equal, but the calf circumference on the left side was one centimetre less than on the right side. That could be seen as being a form of calf wasting. Furthermore, Dr King went on to offer this objective assessment that the plaintiff "appeared genuine in his presentation today" again indicative of the doctor believing that the plaintiff's presentation was consistent with the disability that he diagnosed. 2. On 29 July 1999 armed with the reports of Dr Stephen and King, Mr Treharne made a formal claim for benefits under s 66 and s 67 of the Workers Compensation Act 1987 but the claim was actually under s 12D of the Act. 3. The defendant qualified the late Dr Ian Bryan, a well‑know, highly‑respect orthopaedic surgeon. Dr Bryan examined the plaintiff on 27 October 1999. On that occasion, Dr Bryan recorded that the plaintiff told him that he occasionally had back pain but no acute back pain or acute leg pain. He referred to having some pain in the left leg in the early part of the day and occasional numbness and tingling to the outer side of the left foot. That, of course, is a complaint of paraesthesia. Dr Bryan found limited forward flexion and limited lateral rotation towards the left on physical examination. He did not find any wasting of the left calf but found one half inch wasting of the left thigh. Straight leg raising on the left side was limited to 60 degrees but on the other side was 80 degrees which he thought to be normal. In other words, he accepted a reduction in straight leg raising on the left hand side. After setting out his findings on examination, Dr Bryan noted what was said by the X-rays and CT scans. He went on to say this: "A CT scan dated 12 June 98 showed a moderate left‑sided, lumbosacral disc protrusion with involvement of the first sacral nerve root and this would be consistent with acute symptoms at the time. It would also be an indication that operation on his back may be necessary but operation has not been carried out. He has continued to improve. He has left the police force and has engaged in some light or sedentary work. He is, I feel, fit to do his present work, but he is not fit to return to his previous work of normal duties in the police force. His back would still be vulnerable to further injury. The indications are that he developed low back pain and left‑side sacroiliac disc protrusion and nerve root irritation probably related to the pain that came on while driving a car in an uncomfortable position. He is in reasonably stationary condition. With reasonable care he may not suffer any acute recurrence of his previous back problem. He is fit to do light or sedentary work and I believe can remain satisfactorily employed". In a separate report, Dr Bryan agreed with the assessments of the impairment and loss that had been made by both Dr Stephen and by Dr King. 1. Unsurprisingly, the defendant paid the plaintiff $9,000 in respect of 15% permanent impairment of his back and $3,750 for 5% loss of efficient use of his left leg at or above the knee. The plaintiff then made a submission concerning his experience of pain and suffering. That was forwarded to the defendant by Mr Treharne under cover of a letter bearing date 30 June 2000 received by the defendant on 3 July 2000. The first question that had been asked of the plaintiff was, "Has the loss resulting from the injury affected the quality of your life?" The plaintiff replied positively to that question. He went on to state this: "Prior to the injury I was involved in a lot of activities both sporting and social. As a result of the injury to my back I could no longer participate in these activities for quite a period of time. I became very concerned about re‑injury to my back and so still do not participate in a lot of the activities I did prior to the original injury. This I believe has resulted in the loss of a lot of the quality of life that I had before the injury. I still am very cautious about what activities I will participate in and this has greatly limited my enjoyment of my free time. Although I left the police service to pursue a career in the private sector, I believe it was partially due to the fact that I was concerned that a recurrence of the injury may have happened had I remained in the Police Service". 1. One can see in that answer an averment by the plaintiff that a factor leading to his resignation was a fear about having a further onset of symptoms when participating in provocative activity that could cause a further onset of symptoms. One must remember that the plaintiff still had a tear in the annulus fibrosus and extruded this disc material which could impinge upon the nerve root or other neural structure at any time depending on the plaintiff's movements. The defendant lays stress on the fact that the plaintiff said that he was leaving the police service "to pursue a career in the private sector" but the total import of what he said in the section of this submission which I have quoted confirms to me that the plaintiff was concerned about being able to perform his full duties as he would want to perform them in the Police Service leading to his deciding to resign. 2. The intriguing thing about a "career in the private sector" is that the plaintiff had no training outside the police force. He joined the police force immediately upon obtaining the Higher School Certificate. He had not done anything in particular in the Police Force which could equip him for other jobs outside the Police Force and certainly when he left the Police Force, his first job was as the owner of a business known as "Balloon Concepts". His lady friend, who I understand to have been called Helen, had a party hire business and the business that the plaintiff opened dealing with party balloons complemented her business leading to their working together. This was not a demanding job, nor was it a fulltime job, nor did it return a great deal of income. It is hard to see how the plaintiff could see this as a "career in the private sector". That, in my view, was a statement by the plaintiff to boost his own morale rather than to reflect the actuality of what had occurred. 3. Another factor that the pain and suffering submission draws to my attention is this. For some time prior to the injury in May 1998, the plaintiff had been living at and working for the Clovelly Surf Lifesaving Club. He lived in the clubhouse as the caretaker of the premises. He told me that, in essence, his remuneration for being the caretaker was free accommodation in the apartment in the clubhouse. However, it is likely that there was some further remuneration as it is referred to by the plaintiff in his last section of his pain and suffering submission. The plaintiff told me in his evidence about the duties involved in being the caretaker at the surf clubhouse. I can readily accept them. He had to give them away because essentially it was a cleaning job after the clubhouse shut each evening and involved inter alia putting weights away in the gymnasium/exercise yard and hosing out the change rooms, and the like, which required him to lift duckboarding and other activities throwing stress and strain on the body. The final section of the plaintiff's pain and suffering submission is this: "At the time I received the injury I had secondary employment at the Clovelly Surf Lifesaving Club as their live‑in caretaker. This employment gave me use of a one‑bedroom unit as part of the payment for carrying out my duties as the caretaker. As a result of the injury, I was no longer able to carry out my duties and subsequently it became necessary for me to rent alternate accommodation. At the time I was relying on the income I made from the surf club and the accommodation to help with some financial problems I was having at that time. The loss of the secondary employment and the extra financial burdens of having to pay for alternative accommodation at that time was a great strain on me both financially and mentally". Again, it must be pointed out that the activities that he was performing at the surf club prior to injuring his back were deliberate activities: that is, if he needed to lift a duckboard or lift a weight, he knew he had to bend down and do so. The activities to which he was exposed as a mobile supervisor were often involuntary activities because he was responding to the actions of others: the actions of an escaping prisoner, or a prisoner resisting arrest, or persons involved in brawls, and the like. Again, that to me suggests the ongoing physical incapacity for work. 1. The defendant went on to pay the plaintiff $10,000 for pain and suffering resulting from the impairment and loss which was in essence agreed. Other work 1. The plaintiff remained the owner and operator of "Balloon Concepts" until March 2004. I understand that he stopped that work because of the breakdown of his relationship with "Helen", the lady who had the complementary business in providing for parties. In March 2004, the plaintiff found work as a store manager for Sporting House Direct. He filled that role until January of 2006 when he took up another job as a store manager for Kleenmaid. They are the providers of white goods. The plaintiff was only a store manager and the extent of his activities was little more than being a salesman. He did that work for two years until January of 2008 when he became a store manager for Repco. He worked for Repco initially at Dural, then at Windsor, then at Penrith, then at Campbelltown and eventually at Parramatta. The plaintiff agreed with me that that was a tour of Western Sydney. That occupied him until April 2010. 2. He then changed roles with Repco and became known as a "multi‑site manager", the overseer of five stores in the Macarthur region. It appears to me that the multi‑site manager's job for Repco ended in March 2012 when the plaintiff took up work as the branch manager of ARB 4X4 Accessories. That was similar sort of work that the plaintiff had been doing for Repco. In April 2013, the plaintiff took up the job of area manager for an organisation known as Money3 which was a short‑term money lender. He was required to administer a number of outlets at Mount Druitt, Blacktown and Fairfield, again, an administrative role. He held that until April of 2015. Between July 2015 and May 2018, he worked as an Uber driver using his own motor vehicle, a Toyota RAV4. 3. On 26 May 2008, the plaintiff started attending the Winston Hills Medical Centre. That was because his new wife was concerned about his health. They had settled in the Winston Hills area and she encouraged the plaintiff to consult medical practitioners about his health. In 2017 while the plaintiff was working as an Uber driver, he again contacted Messrs Walter Madden Jenkins and came to be dealt with by Ms Sara McLean. It had been suggested to the plaintiff that he contact his solicitor again when the plaintiff phoned the Police Hurt On Duty Unit inquiring about having his treatment expenses paid for by the Police Service because he sought some assistance for his back. On or about 11 September 2017, a doctor at the Winston Hills Medical Centre ordered a CT scan of the plaintiff's low back. On the following day, Dr Nahida Azmol of the Winston Hills Medical Centre referred the plaintiff to Dr Brian Hsu, a spinal surgeon. The referral letter says this: "Thank you for seeing Phillip Connor, aged 55 years, for an opinion and management. He presented with lower back pain and sciatica which...started after injury on [sic] 1999. His recent CT lumbar shows L5 foramena [sic] stenosis with compression of L5 nerve [root] bilaterally". 1. Dr Hsu examined the plaintiff on 19 October 2017 and produced a report bearing that date. It can be found on p 59 of Exhibit A. On examination, Dr Hsu found a grade 4 weakness of left ankle dorsiflexion and left ankle eversion. That again suggests persistent left‑sided radiculopathy. He also noticed that the straight‑leg raising test was positive on the left at 45 degrees but was "negative" on the right side. I assume that the doctor means by that that there was no abnormality with straight leg‑raising on the right side. Dr Hsu said that the CT scan of the lumbar spine demonstrated at the L5/S1 level loss of disc height and disc bulging. No formal diagnosis was made other than the doctor's stating this: "I had a long discussion today with Mr Connor regarding the radiographic findings and also the clinical findings. Mr Connor's lumbar back pain and lower limb symptoms are most likely related to the L4‑5 and L5‑S1 loss of disc height and the disc bulging causing neural element compression. I have arranged for him to undergo an MRI scan of the lumbar spine to further delineate the pathology. I plan to review him with the MRI scan to discuss his treatment options". 1. An MRI scan was performed on 20 October 2017 by Dr John Ly and can be found at p 77 and 78 of exhibit A. The conclusion of Dr Ly was this: "High grade bilateral L5 lateral recess stenosis at the L4‑5 level due to combination of short pedicles, ligamentum flavum thickening, diffuse disc bulge and a broad‑based posterior central disc protrusion and annular tear with a suspected impingement of the L5 nerve root bilaterally". Earlier in the same report, Dr Ly said that at the L5/S1 level there was a fusion of the intervertebral disc to the end plates but no disc protrusion or significant spinal canal or foraminal stenosis was identified. That report appears to me to be out of kilter with the earlier diagnostic examinations. Furthermore, there is no suggestion that there was any fusion of the L5/S1 disc space as such; rather, the radiologist appears to have believed that the two discs had fused together obliterating the vertebrae space. 1. Dr Hsu reviewed the plaintiff on 26 October and summed‑up his view of the MRI thus: "The MRI scan does demonstrate further loss of disc height at L5/S1 and also moderate disc bulge at L4‑5 causing stenosis and neural compression". He then arranged for the plaintiff to be reviewed by his partner, Dr Bisham Singh, for a whole person impairment. Dr Bisham Singh's report of 14 November 2017 can be found at p 64 of Exhibit A, but that doctor was unable to provide an accurate and detailed assessment of the whole person impairment. Why it was necessary to do such an assessment is not at all clear. It had not been requested by a lawyer and, if it had been, it was the wrong thing to request in any event. 1. I have now found the CT scan of the lumbar spine made on 11 September 2017 at the request of a general practitioner at the Winston Hills Medical Centre that was referred to by Dr Azmol in her referral to Dr Hsu. It is summed‑up in this fashion by the radiologist, Dr Dugal: "CT of the lumbar spine does demonstrate L5/S1 marked degenerative disc disease, endplate osteophytes are seen resulting in moderately severe foraminal stenosis bilaterally compressing the L5 nerve roots which may account for the left sided symptomatology". Although the protrusion was at the L5/S1 level, it would appear that the extruded disc material had now compromised the L5 nerve root having earlier compromised the S1 nerve root. 1. On 5 April 2018, Dr John Stephen again assessed the plaintiff, this time on a medico‑legal basis at the request of Ms McLean. Following upon that examination, Dr Stephen wrote his primary report of 9 April 2018 and two supplementary reports of 9 April 2018, and the further reports of 21 May 2018, 25 July 2018, 4 September 2018 and 23 August 2021. Dr Stephen commenced his primary report by providing a brief summary of his treatment of the plaintiff until the plaintiff's return to work. He then said this: "As I understand it, Mr Connor thereafter resumed normal duties. Having said this, and this was not expressed by me at the time, but is well described by Dr Ian Bryan, orthopaedic surgeon, in a report dated 28 October 1999, Mr Connor was fit to do light or sedentary work and could remain satisfactorily employed, but could not return to what Dr Bryan called 'normal duties in the police force'. This means of course that his back was vulnerable to further injury in any of the more strenuous occupations which encompass full duties as a policeman. A person with a 15% impairment of the back and a 5% loss of useful function of the left leg, is not fit to carry out the confrontational activities involved in full police work". 1. By 5 April 2018, the plaintiff was complaining of low lumbar backache which was "pretty well constant". The plaintiff told Dr Stephen that he was always conscious of his low back pain, but it varied in intensity and was manageable. The plaintiff told the doctor that prolonged sitting and driving tended to increase his backache and sometimes that it was associated with numbness in the left thigh and calf. He managed to handle that by getting out of the car and walking or by getting up from a chair and walking around. He noted that that eased the leg symptoms. The doctor's history continues thus: "He tells me that every 6‑12 months, he gets what is probably true sciatica with some pain and numbness in the left thigh and calf. This usually last a few days and then goes. Otherwise, he has occasional ache in the left leg only". 1. On physical examination, Dr Stephen noted that the plaintiff could hop on the right leg quite easily and on the left leg only just. He noted the plaintiff could stand repetitively indefinitely on tiptoe on the right side but not on the left side. That led the doctor to conclude that there was a minor degree of weakness in the distribution of the S1 nerve on the left side. Straight‑leg raising on each side was 70 degree on this occasion but with discomfort on the left side. The doctor then referred to the CT scan of 11 September 2017. The doctor did not agree with either it or the report of the subsequent MRI scan. He said this: "I saw a CT scan of the lumbar spine dated 11 September 2017. This shows marked lumbosacral degenerative changes with disc narrowing. The radiologist reports possible L5 nerve root compression but this is not clinically the case and on viewing the MRI scan, dated 20 October 2017, I am able to see that the L5 nerve roots are not involved. The MRI scan shows much in the way of lumbosacral narrowing. The radiologist reports auto‑fusion. This is not the case. There is no bony union between L5 and S1 and this is clearly demonstrated on the CT scan. At the level above, the L4‑5 disc is somewhat degenerate where there was a small disc bulge with an annular tear but no evidence of nerve root compression. I could see no evidence of nerve root compression at any level". 1. The diagnosis offered by Dr Stephen is this: "Mr Connor continues to have discogenic mechanical low lumbar back pain. This he finds manageable. His left leg symptoms and (minimal) physical signs are the product of minor damage to the S1 nerve root which from time to time exhibits symptoms of irritation. There is no true radiculopathy in the S1 distribution. I note the duties of a police sergeant and in particular, those of full operational duties. It is clear that as stated above, running and negotiating objects to pursue and effect an arrest, physically restraining someone and overcoming the will of others to resist would have been beyond him when I last saw him in 1998 [sic, scil.1999]". 1. Dr Stephen expressed the view that on the last day of service in the police force, the plaintiff had discogenic mechanical back pain but no residual left S1 radiculopathy. He went on to accept that the initial back injury caused damage to the annulus fibrosus of the disc making the plaintiff more vulnerable to further injury. Indeed, he went on to say, "ultimately making such an injury almost inevitable". The first supplementary report I have bearing the date 9 April 2018 relates to an increase in the plaintiff's weight. The point it makes is that the plaintiff was overweight but, nevertheless, any work activities involving repeated bending, heavy lifting and work in confined spaces were likely to worsen the plaintiff's mechanical back pain and consequently he was not fit to carry out such work. 2. I should say on the question of weight that the plaintiff weighed, according to him, between 95 and 100 kilos when he was in the police force. Dr Bryan recorded the plaintiff's weight when he saw him on 27 October 1999 and according to Dr Bryan he weighed 15 stone at the time: that is, 95 kilograms. The plaintiff in evidence told me that he now weighs 150 kilos and the progress of his weight is recorded by Dr David Maxwell, qualified by the defendant, who examined him on 7 February 2019. The relevant part of the doctor's report is this: "About six months prior to the recent motorcycle accident [1 November 2018] Mr Connor was concerned about his weight which had gone up to 142 kg, (it was 98 kg at the time he left the police force). He started an exercise program doing cardiovascular work including bike riding. He was also using a treadmill. He lost 15 kg". However, his exercise regime was clearly interrupted as a result of the motorcycle accident and the plaintiff has now regained the weight he lost before it and, in fact, gained further weight. However, nothing in my view turns on the plaintiff's weight. 1. The second supplementary report of Dr Stephen of 9 April 2018 concerns the application for a further gratuity under s 12D. On this occasion, Dr Stephen diagnosed a 25% impairment of the back and a 10% loss of efficient use of the left leg at or above the knee albeit that the doctor, true to medical form, referred on this occasion to the right leg. That was corrected in the supplementary report of 21 May 2018. In the supplementary report of 25 July 2018, the doctor said this: "When I reported on 27 April 1999 it was three months after I had last seen him. I then considered he was fully fit for police work. In this I was proven wrong. That is, he had a recurrence of symptoms as a consequence of his work related disc prolapse. Referring to my latest report, I note that Dr Bryan had foreseen this. Only in exceptional cases would a person who has sustained a significant disc prolapse be fit to resume the full physical duties, including those of physical conflict, of a police officer. Mr Connor was not such an exception". Further developments 1. In May of 2018, about a month after seeing Dr Stephen for the last time, the plaintiff obtained work as a store manager for Bay Audio. They are providers of hearing aids at North Rocks. That clearly is a job the plaintiff is able to do. 2. On 26 September 2018, the plaintiff made a further application for gratuities under s 12D equivalent to further benefits under s 66 and s 67 of the Workers Compensation Act 1987. On this occasion, the plaintiff was seeking a further 10% impairment of his back and a further 5% loss of efficient use of the left leg at or above the knee and a further lump sum under s 67, no doubt relying upon the assessment of Dr Stephen made on 5 April 2018. The documents making that claim can be found at pp 55 to 68 of Exhibit B. 3. On 15 October 2018, the plaintiff's solicitors wrote a letter to the defendant making an application pursuant to s 10B(2) of the Act for the plaintiff to obtain a superannuation allowance. The letter making the claim can be found at p 73 of Exhibit B and the appropriate form and its annexures can be found between pp 74 to 90 of Exhibit B. 4. Sometime in November 2018, the plaintiff obtained further employment as a sales consultant with Solarbright. More recently, in October 2020, the plaintiff found work as a sales consultant with MV Solar but lost that work in April 2021 probably because of the COVID‑19 pandemic. He then worked as an Uber driver until recently finding work with Teho Solar Panels where he works as a sales representative doing telephone sales. 5. On 8 January 2019, the parties agreed that the plaintiff was in fact suffering a 25% impairment of his back and a 10% loss of efficient use of his left leg at or above the knee and agreed to an increased lump sum under s 67 for pain and suffering resulting from that further impairment and further loss. Dr Maxwell and Dr Pell 1. For the purpose of the plaintiff's application under s 10B(2), the defendant qualified, as I have earlier mentioned, Dr David Maxwell. Concerning the circumstances in which the plaintiff resigned, Dr Maxwell obtained this history: "Mr Connor indicated that he returned to work on 11 January 1999 because he was worried about his career and he continued to work until April 1999 but he suggested that he was working under stress and kept to himself. He said he did not have any further treatment". I infer that the history recorded by Dr Maxwell is similar to the history that I have accepted: that the plaintiff was concerned that he was unable to do the full duties of an operational mobile supervisor; that he was concerned that he could not assist his colleagues as he was supposed to do; that he kept that to himself and that was a reason that he resigned. 1. When Dr Maxwell examined the plaintiff, he said the plaintiff weighed 145 kg. According to Dr Maxwell, the plaintiff pointed to the L4 5 level as the site of his pain: that is, beltline. L5/S1 is slightly below beltline, about an inch below it. The only neurological deficit that Dr Maxwell found was that both ankle jerks were absent. Knee jerks were present and equal, but they were reduced. The fact that this was a bilateral finding does not suggest any ongoing problem. He measured the plaintiff's calves and found that the left calf was 45 centimetres in circumference, but the right calf was only 44.5 centimetres in circumference. That appears to me to be rather odd. When there has been any difference in circumferences of either thigh or calf, it has, up until this time, always been the left thigh or left calf which was smaller than the right side. Dr Maxwell did not find any sensory abnormality in either leg and found no evidence of sciatic tension. 2. The only other medical practitioner to have recently examined the plaintiff, whose report is before me, is Dr Pell who examined the plaintiff on 21 April 2021 and prepared a report bearing the date 23 April 2021. Dr Pell's findings on examination are very different to those of Dr Maxwell. I quote them in full: "He was a large man but obese. There was tenderness over the level of L4/5 extending around the flank on the right side. Lumbar movements were markedly restricted; flexion was to 30 degrees, extension was only to 10 degrees, lateral rotation to the right was to 40 degrees but on the left was only to 5 degrees. Straight‑leg raising on the right was 30 degrees and on the left 20 degrees and this with the onset of pain. He could stand on his toes and heels. There was a suggestion of mild weakness of toe flexion, otherwise there was no motor deficit in the lower limbs. There was no wasting. Both knee jerks were present and both ankle jerks were absent and could not be obtained with reinforcement. Tone was normal and toes were down‑going". One will note that the lateral rotation to the left was greatly restricted. Straight‑leg raising on the left side was restricted compared to the right side and when the left leg was raised to 20 degrees, there was a complaint of low back pain. One will also note the suggestion of mild weakness of toe flexion which could be indicative of some residual effect of radiculopathy. The diagnosis made by Dr Pell was this: "As a result of the incident occurring on 22/23 May 1998, Mr Connor has sustained a lumbosacral L5‑S1 disc prolapse, towards the left side, causing discogenic back pain and left‑sided sciatica". 1. Dr Pell was of the view that at the time of his discharge, the day that he last worked in the Police Force, the plaintiff had that discogenic back pain and intermittent left‑sided sciatica from irritation of the left S1 nerve root. When asked what work the plaintiff could perform, the doctor went on to say this: "On the last day of service, Mr Connor was performing full operational duties of a police sergeant. Such involved performing mobile supervisor duties, driving police vehicles (getting in/out of the car), standing or sitting for long periods, pursuing suspects which often involved altercations in an effort to detain them with physical restraint and wearing a suitable police appointment belt. All of these activities aggravated his back mechanical pain. He was unable to drive for long periods and had to have frequent stops and rest...It is reasonable to conclude the incapacity continued after and for the foreseeable future. I believe his incapacity to perform his duties as a police officer would continue with any physical activity that involved sitting/standing for long periods, running, restraining people and being involved in altercations and the like". 1. The penultimate question asked of Dr Pell was, essentially, to describe the parts of the job that the plaintiff was required to work which he could not do with the restrictions placed upon him by Dr Pell. The doctor said this: "I would have placed the following restrictions on Mr Connor: to avoid prolonged sitting such as when sitting in a patrol car, prolonged standing/running and climbing. Total avoidance of any involvement in altercations and the restraint of combative people. It would be advisable for Mr Connor to wear a light appointments belt, such as a Cordura belt as recommended by Dr Stephen, as well as the wearing of lighter boots. Mr Connor could not perform most of the operational duties required due to his restrictions, and he would remain on light duties, mainly office work in a police station". The doctor was asked a number of other questions which he answered in the supplementary report, but I do not need, in my view, to quote from it. 1. I return to Dr Maxwell's opinion. After setting out his findings on examination, Dr Maxwell reviewed documentation and then was asked a number of questions. The first question was whether the plaintiff had a current medical condition. He answered in this fashion: "Mr Connor complains of intermittent low back pain and this is the result of facet joint inflammation secondary to his obesity causing overload of the facet joints. There had been significant improvement in his condition prior to the motorcycle accident in November 2018 after he increased his activity level. There is no evidence that he suffers from discogenic pain at the L5‑S1 level as the result of a disc protrusion and there is also no evidence that he currently suffers from any radiculopathy. This is confirmed by the recent MRI scan. It shows complete resorption of the sequestered disc protrusion at L5/S1. It should be noted that the MRI scans taken at 3‑monthly intervals after a disc protrusion (particularly an extruded disc protrusion) show complete resorption of the disc protrusion in two years in 90% of cases and this is associated with improvement in symptoms. There is no evidence that the disc protrusion he suffered has occurred or has been affected by the passage of time or the ageing process. There is no evidence that an individual's back pain becomes worse with age. It can become worse with decreased physical activity levels and obesity. Mr Connor has had little treatment for his alleged back condition since he resigned from the police force. It does not appear to have affected his employment prospects". 1. The next question asked of the doctor was what medical conditions did the plaintiff have on the last day of his service in the police force. This is what Dr Maxwell said: "At that stage, it is probable that the disc protrusion was resorbing. I note that Mr Connor's symptoms had improved. When examined by Dr Stephen in January 1999, he was not complaining of any sciatic pain and Dr Stephen felt he was fit to resume his normal duties as a police sergeant. It would appear that the disc protrusion resorbed in the normal fashion as the recent MRI scan shows no evidence of a disc protrusion at the L5‑S1 level. Mr Connor did not undergo any rehabilitation or injury management program after leaving the police force. He did have a rehabilitation program prior to returning to full duties in January 1999". 1. In answer to a further question, Dr Maxwell said this: "I consider Mr Connor was not incapable of discharging the duties of his office being a general duties sergeant at Eastern Beaches on his last day of service with the police force because of the medical condition of lumbosacral disc damage with mechanical back pain and potential for recurrence of left sciatica. I note that symptoms had settled significantly and he was carrying out his normal duties. I do not consider that the medical condition of lumbosacral disc damage with mechanical back pain and potential for recurrence of left sciatica would have continued to make him incapable of discharging the restricted duties of a police officer for the foreseeable future after the date he resigned. The prognosis for a return to normal activities after a disc protrusion is excellent and after two years it does not matter whether the individual has had surgery to remove the disc or whether the disc has resorbed spontaneously". The words "restricted duties" in the penultimate paragraph I have just quoted are interesting because they do suggest that the plaintiff was incapable of discharging the full duties of a police officer at the time of his discharge. 1. In answer to a further question, Dr Maxwell said this: "Mr Connor did have a disc protrusion at the L5/S1 level which I consider was almost certainly spontaneous. He had no symptoms on the night that he did the patrols in the police car. He suggested he had a broken seat initially but now suggested that the nuts were loose on the seat runners. He also did not experience any pain in trying to stop the drunken man from falling. The disc protrusion has not been exacerbated since it first occurred and has not been affected by the ageing process or the passage of time". 1. As far as causation is concerned, Dr Maxwell's view is out of kilter with every other medical practitioner who has commented on the issue. Certainly, it was never suggested by Dr Stephen or Dr King or Dr Bryan or Dr Pell that the disc protrusion was "spontaneous" and the doctor appears to have overlooked the fact that in the attempt to stop the drunken offender from falling, there may have been both axial overload and torsional stress, the common method of injuring a low lumbar disc. As to the later onset of symptoms, I accept that the symptoms were belated by about 12 hours. However, in my view, that is an acceptable proposition and it certainly did not cause any of the other medical practitioners to be disquieted in their opinions. Suffice it to say that if the delay were a number of days, one might tend to think otherwise, particularly if there were, for example, a major degenerative condition affecting not only L5/S1 but other levels of the spine such that one might accept a spontaneous episode of back pain by the mere thing of getting out of bed, for example, or bending to tie one's shoelaces. Finding 1. With the utmost respect to Dr Maxwell, he fails to consider the fact that for discal material to protrude from a disc, there must be a rupture or herniation of the disc, a tearing of the annulus fibrosus, and these tears are not noted to repair themselves. An extruded nucleus pulposus can resorb, that is well documented, but can protrude again because the annulus of the disc has ruptured, the rupture does not repair and the nucleus pulposus can be extruded again and again and again, depending on one's activities. Hence, the practice of laminectomy, of cutting away the lamina to get at the disc to remove either the extruded nucleus pulposus or indeed the whole of the nucleus pulposus such that there can never be a recurrence at that level of the disc protrusion. Sometimes, surgery is practised, removing the discal body itself and replacing it with bony material, a bony fusion. In more recent years, other prostheses have been used to replace the removed disc, with varying results. 2. I accept that the plaintiff had ruptured the L5/S1 disc. There clearly had been an extrusion of nuclear material which impinged on the S1 nerve root at the L5/S1 level causing sciatica, true radiculopathy. The plaintiff's torn annulus fibrosus remains. The effect of the radiculopathy still affects the plaintiff because there can still be discerned effects of the earlier pressure on the S1 nerve root. It may well be correct that there is no continuing radiculopathy, meaning continuing pressure on the S1 nerve root, but there was in the past and that has left some residual deficits in the plaintiff's left leg that can still be discerned by the medical practitioners. Furthermore, the risk remains that the extruded material will again protrude through the tear in the annulus fibrosus. To use the most recent formulation of Dr Stephen, I accept the plaintiff has been left with lumbosacral disc damage with mechanical back pain and the potential for recurrence of left‑sided sciatica. His other way of describing the lumbosacral disc damage with mechanical back pain was "discogenic mechanical back pain". I accept that any provocative activity could cause a recurrence of major symptoms. To use one of the formulations of Dr Stephen: repeated strenuous physical activities in someone with a lumbosacral disc program ‑ namely, damage to the annulus ‑ makes him vulnerable to further injury, ultimately making an injury almost inevitable. Workers Compensation Act 1987 Sec. 47 1. Mr O'Rourke for the plaintiff referred me to s 47 of the Workers Compensation Act 1987. The same provision was s 12A of the Workers Compensation Act 1926. In the current workers compensation service, there is reference to only one case ‑ DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22, a decision of Keating DCJ ‑ but the reference to s 47 was unnecessary because his Honour held that any aggravation was, in any event, continuing. I have serious reservations as to whether I could import into the Act s 47 of the Workers Compensation Act 1987. In any event, I have formed the view that s 47 is otiose. Indeed, the late Professor CP Mills in the first edition of his work "Workers Compensation (New South Wales)", Butterworths, 1969 after setting out the terms of s 12A referred his reader back to note [185] of his work. That is one note concerning s 11(1) commenting upon the words "some suitable employment or business" as used in s 11(1) the provision concerning partial incapacity. At p 354 of his work, the learned author said this: "One of the most frequent issues in the early cases on 'suitable employment' was the added danger resulting from some permanent disablement: a worker who had lost an eye would claim that his old employment was not suitable, either because he would be less efficient, and hence in greater danger to himself, whilst working with only one eye, or exposure to the same risk opened up the possibility of a similar accident in the future, with total blindness as the result. At first the courts were sympathetic to this submission: Eyre v Houghton Main Colliery Company Ltd [2010] 1 KB 695; 3 BWCC 250; Dinnington Main Coal Company Ltd v Bruins (1912) 5 BWCC 367 (C.A.), but in Law v W Baird & Co Ltd [1914] SC 705; 7 BWCC 846 it was regarded as an attempt to make the employer liable for the consequences of an injury which might never occur. This reasoning was finally rejected in Hoe & Co Ltd v Dirs [1941] 1 KB 34; [1940] 4 All ER 297; 33 BWCC 307, the Court of Appeal preferring the argument that the original accident had effected a change in the man's position and physical status as a worker: his injury had resulted in what otherwise would be a legitimate risk being one which was unreasonable to ask him to take. See also Butler v B.A. Collieries Ltd (1945) 38 BWCC 78 (C.A.). In 1964 a specific provision was added dealing with this matter: see now s 12A. It is not clear that there was any real need for the new section, nor is it clear whether all such issues are now to be regarded as being covered by the provisions of the new section, but it is suggested that any questions arising from the apparent dual coverage of questions of safety should, in accordance with apparent intention of the legislature, be decided in favour of the worker". 1. Exactly the same commentary is made in the 2nd edition of the learned author's work. I concur the s 12A was otiose and state of the law was and is that an injury which resulted in what otherwise would be a legitimate risk to require a worker to take becomes one which is unreasonable to ask him to take if there be a risk of further injury occurring. I therefore have no problem in accepting that it would have been improper to require the plaintiff to run the risk of reinjuring himself or perhaps using more appropriate terminology: running the risk of incurring major symptoms again by, for example, wrestling with an offender causing discal material to protrude through the ruptured annulus fibrosus leading to a further onset of major symptoms. Persisting disability 1. Despite the opinion of Dr Maxwell to the contrary, I also accept that the plaintiff's condition persisted from the time he returned to fulltime duties on 11 January 1999 up until the time of his resignation and continues to this time. In Day v SAS Trustee Corporation [2020] NSWDC 381, I accepted that the plaintiff in that case had a transient episode of what could be described as an adjustment disorder at the time that he left the police force and that that condition persisted perhaps until the beginning of 1999. However, I went on to find that once the plaintiff stopped taking Valium that was given to him by his mother about the end of 1998, he performed his work as a solicitor with the Aboriginal Legal Service admirably and, hence, he did do so after being transferred by that organisation to Newcastle in May 2000 and was working ably as a solicitor up until the time that he is appointed as a Local Court magistrate. I was not persuaded that the symptoms persisted beyond the end of 1998. In that case, the appellant had essentially stopped working, as far as I can recollect, towards the end of August 1998 and then submitted his resignation. There was an appeal from that decision, but it was unsuccessful: Day v SAS Trustee Corporation [2021] NSWCA 71. 2. In the Court of Appeal, Meagher JA, with whom Payne and White JJA agreed, traced the history of s 10B(2) commencing at [24]. Commencing at [30] his Honour said this: "30. Turning directly to the question of construction, both "infirmity" and "incapacity" have connotations of permanence or persistence, and in an appropriate context "infirmity" is capable of meaning a permanent condition. Rule 14 of the Rules of the Commercial Travellers' Society, established in 1800, had provided for the payment of gratuities to members, including those who "become infirm, or meet with any other infirmity". Writing in 1896, Kekewich J considered "infirmity" in r 14 to mean "some permanent disease, accident, or anything of that kind, rendering the member an object deserving of the assistance of the society": In re Buck; Bruty v Mackey [1896] 2 Ch 727 at 734. And in Re Boothroyd [1986] 1 Qd R 167 at 174, Thomas J, whilst not accepting that the word necessarily introduced a concept of unqualified permanence, considered that it "must obviously refer to something durable and not transient". 31. The distinction drawn by s 10B(2) between an "injury" and an "infirmity" reinforces that connotation. It will not suffice for a member of the police force to have been rendered temporarily incapable of performing the functions of a police officer by an injury: the condition caused by his or her injury must answer the description of an "infirmity", apparently as more than the mere state of being injured. In terms, as the appellant emphasises, the statute requires only that the member be incapable from an infirmity "at the time of [his or her] resignation or retirement". But that requirement is best understood as designed to exclude members of the police force whose disabling condition only develops or worsens after they retire or resign, and not as indicating that an "infirmity" need not be likely to endure. 32. The meaning of a statutory provision or phrase is to be determined by reference to the language and purpose of the statute of which it forms part: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] (McHugh, Gummow, Kirby and Hayne JJ); and where multiple meanings are open, the choice between them "may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute": SAS Trustee Corp v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20] (Kiefel CJ, Bell and Nettle JJ). In this case the only understanding of "infirmity" which is consistent with the role that term plays in the scheme of the PRS Act is as denoting a condition giving rise to an incapacity that is likely to continue "for the foreseeable future" (Daykin at [24]) or, to use Thomas J's expression, which is "durable and not transient". On that view, a police officer with a broken leg will have an injury, but not necessarily an infirmity – unless, for example, the break does not heal properly, or ultimately leads to the loss of the limb. Similarly, exposure to traumatic events or stressors may cause a transient period of depression and anxiety, or a persisting psychiatric condition from which full recovery is unforeseeable: only the latter is capable of being an infirmity in the relevant sense." Here I accept that the infirmity of body or mind made the plaintiff incapacitated for the full duties of a mobile supervisor and that incapacity continues until the current time. It is indefinite and unlikely to go away. It has persisted now for some 23 years. Applicable Law 1. Despite some obiter dicta to the contrary, I accept that the version of the Act applicable to the current plaintiff is the version of the Act that was in force at the time that he submitted his resignation from the New South Wales Police. So much is agreed between the parties in this case, and so much was agreed between the parties in Day v SAS Trustee Corporation. In support of that argument, Mr Ower referred me to the decisions of SAS Trustee Corporation v Ainsworth [2011] NSWIRComm 128, SAS Trustee Corporation v Cox [2011] NSWCA 408, and Locker v SAS Trustee Corporation (No 2) [2014] NSWIRComm 14. The relevant provisions of s 10B of the Act are these: "(2) An annual superannuation allowance shall not be granted under s 10 to a former member of the police force who resigned or retired unless: (a) The former member notified the Commissioner of Police before the member's resignation or retirement and within six months of receiving the injury which has caused the member's infirmity of body or mind, of that injury (a1) Where the regulations so require, the notification was in or to the effect of the prescribed form, and (b) STC (having regard to the medical advice on the condition and fitness for employment of the member) has certified that the former member would have been incapable, from that infirmity of body or mind, of discharging the duties of the member's office at the time of the member's resignation or retirement. ... (2B) STC may certify that the former member of the police force would have been incapable of discharging the duties of the member's office if the member would have been incapable of discharging the duties of the office in the police force in which the member was employed at the time of the member's resignation or retirement and also any other office in the police force: (a) which was available to the member at that time, (b) which was not lower in rank than the office in which the member was then employed, and (c) in which it would have been reasonable to expect the member to have been employed". 1. In the current matter, s 10B(2) paragraphs (a) and (a1) have been satisfied. The relevant documents from the Commissioner of Police can be found on p 91 to 94 of Exhibit B. The Commissioner of Police accepts that the plaintiff notified him of an injury arresting an offender and then sitting in a police vehicle with a broken seat occurring on 23 May 1998 and that that injury was notified to him on 9 July 1998. Accordingly, it has become my role to ascertain whether the plaintiff has established on the balance of probability the matter required by s 10B(2)(b) and the matter provided for in s 10B(2B). I accept that the plaintiff has the infirmity of a lumbosacral disc damage with mechanical back pain and the potential for a recurrence of left‑sided sciatica. I have no hesitation in accepting that the plaintiff was incapable because of that infirmity of body of discharging the duties of his office as a mobile supervisor at the Eastern Beaches Local Area Command at the time that his resignation took effect on 17 April 1999. 2. That brings me to (2B). Clearly, the first requirement of that subsection has been satisfied by the finding that I just announced. However, it is to be noted that there are two requirements in (2B). That the requirements are cumulative is established by the conjunction "and" between the two limbs of the provision. I am required to consider whether the plaintiff was incapable of discharging the duties of any other office in the police force which was available to him at the time of his resignation and which was not lower in rank than the office which the plaintiff had at the time ‑ that is, the rank of sergeant ‑ and in which it would have been reasonable to expect the plaintiff to have been employed. 3. Unfortunately, that was not the subject of any cross‑examination. The plaintiff did not seek any alternative appointment; rather, he resigned without giving to the NSW Police any reason for his resignation. The plaintiff told me that when he was appointed to the Eastern Beaches Local Area Command based at the Maroubra Police Station he was a junior sergeant. There were three sergeants' positions available: the station supervisor, the mobile supervisor and the custody manager. I accept that there were those three positions on any one shift. This was a major police station, the head station in the Eastern Beaches Local Area Command. The plaintiff told me that as the junior sergeant, he ended up being the mobile supervisor on 75% of the occasions that he was rostered for duty. That means, of course, that on 25% of the occasions that he was rostered for duty, he would have been performing other work such as either station supervisor or custody officer although there is no direct evidence from him of doing that. However, essentially, the work that he returned to on 11 January 1999 was that of a mobile supervisor. On one occasion for three days, between 11 and 13 March 1999, he acted as an inspector, the duty officer in the Eastern Beaches Local Area Command but shortly thereafter he gave notice of his resignation on 18 March 1999. There is no suggestion that the work of inspector, a duty officer, was available to him. One might think that the only other work available to him at the time of his resignation would have been either station supervisor or custody manager. Clearly, they were not lower in rank than the office which he then had, that of mobile supervisor. The real question is whether those jobs were actually available to him and, if they were, would it have been reasonable to expect him to have been employed in them. 4. The first thing to note is that although 75% of the plaintiff's work was as the mobile supervisor, the fact that he was required to do other work from time to time carries with it an inference that those who were not normally the mobile supervisor but were otherwise the station supervisor or the custody manager would have, from time to time, had to perform work as the mobile supervisor. In other words, this was one job but with three different parts although for this particular plaintiff one was a fairly constant part of his work. The other matter that I bear in mind is uncontested evidence that the plaintiff gave, for example, about working as a custody manager where he could be called upon to restrain a prisoner who was misbehaving or resisting or needed to be forced into a cell or dock, who might be resisting what was required of him in moving him from one place to another or, for example, taking him from the dock to a lavatory or taking the person from a dock or cell to an interview room because an electronically recorded interview was about to be carried out, or the like. 5. Equally, the plaintiff, if a station supervisor, could be called upon to break up warring parties in the police station, to come to the aide of the custody manager and the plaintiff gave as a typical example of what could occur at the police station, warring neighbours or warring motorists or others in dispute coming to the counter and the reagitating their differences in the police station, requiring the station supervisor to intervene. Likewise, in the event of any emergency, a custody manager or supervisor might be called out to lend assistance to other police: for example, in the event of a major breach of the police, a major riot, or the like, it may have been a question of all hands on deck. The plaintiff also mentioned that the station supervisor could be called out at times to attend to problems nearby the police station when the mobile units were not near at hand. That could involve dealing with obstreperous members of the public or warring factions, people being argumentative, and where a possible further breach of the peace could occur requiring the station supervisor to intervene and arrest an offender. 6. In short, although the plaintiff was mainly a mobile supervisor, he was not only that. On 25% of his time, he must have been either the station supervisor or the custody manager. Equally, at other times, the custody manager or the station supervisor might be rostered on as the mobile manager. No job was permanent. Mr Ower, counsel for the Commissioner, referred me to the decision of the Full Bench of the Industrial Court in Morley v SAS Trustee Corporation [2007] NSWIRComm 90. That was an appeal against a decision of Staff J. The bench comprised Wright J, President, Walton J, Vice‑President, and Boland J. The appellant in that case held the position of superintended of police at Deniliquin. At [10] the joint judgment quotes extensively from the judgment of Staff J. Staff J is recorded as saying this: "93. The appellant held the position of superintendent at Deniliquin. If the duties of a constable are incorporated into the duties of every police officer, in my view, such duties would be carried out by a superintendent of police on a more strategic than a tactical basis. It is necessary to take a more practical approach in resolving this issue and to concentrate on what in practice occurred in relation to the duties of office of the appellant. For the purposes of this examination, I take the relevant date as being the last date of active service of the appellant. 94. There was little dispute between the parties in respect of the duties of office of the appellant when he held the position of local area commander at Deniliquin. I have earlier referred to the duties as set out in JSR 03. Mr Crandell, the current local area commander acknowledged that JSR 03 sets out the duties that he currently undertakes in that position, although the geographical are of the Command has been reduced since the appellant held the position. It is significant that this document does not refer to any physical duties which, on the evidence, could comfortably be aid to impact on the appellant's physical incapacity in his back. ... 97. However, the only example of physical activities that the appellant was able to give was that his back condition prevented him from undertaking was assisting officers in the gathering up of exhibits, especially large exhibits. 98. The appellant accepted that in respect of [this] example, the work was being performed, albeit not by him, but being done under his supervision. The appellant had under his command an authorised strength of 110 officers and the ability to delegate. In my view, the duties were clearly being performed and there was no real requirement of the appellant to carry out the physical work involved with a search because there were other officers there to do it". The appellant in that case, Superintendent Morley, was unsuccessful in his appeal. 1. That position is very different to the position of a sergeant in the Eastern Suburbs Local Area Command at the time who could be called upon to be either the mobile supervisor or the station supervisor or the custody manager. Furthermore, there is no evidence that any such work was available to him let alone open to him albeit that there is no evidence that he actually asked for any such work. However, on the analysis that I have provided, consistent with the evidence, in my view, the plaintiff has satisfied the second limb of (2B) of the Act. 2. I trust it is implicit from what I have said that there were, on the evidence available to me, occasions when it was not possible for the plaintiff to delegate work to others. Clearly, as a supervisor, whether it be as the mobile supervisor or as the station supervisor, there were others on hand who could do certain work. For example, in the period immediately prior to his resignation, the plaintiff told me and Dr Pell of a brawl at the Palace Beach Hotel at Coogee which the plaintiff tried to attend but when he got out of the car quickly, he twisted, experienced acute severe back pain and fell in the car park. According to the history obtained by Dr Pell, by the time he recovered from that fall and experience in pain, the brawl was over. In oral evidence, the plaintiff told me that in the interim, other car crews attended and it was they who quelled the brawl. In other words, the plaintiff's work did permit him to direct others to do things. However, it is implicit from what the plaintiff told me that he was not always able to delegate because of a lack of a manpower. I again point to the fact that although on any non Friday or Saturday night there were three car crews, he was available as a fourth car crew if a further job arose and all the existing car crews were busy. The plaintiff gave evidence of being called on occasion to quell domestic disputes by himself without anyone being there to assist and being called upon to intervene between warring parties and perhaps to effect an arrest by himself without any assistance. 3. Much of the plaintiff's physical work as a mobile supervisor was in that category, when there were no others to do the work or, for example, the appellant was with one car crew when they needed to arrest a person, that person sought to decamp, the constables may have given chase on foot, he as supervisor may have joined in that pursuit or may have used the car to try to head off the would‑be escapee at some other place to where he could drive his car and then he may have needed to physically arrest the offender whilst he was still being chased by the police on foot. In other words, necessarily, much of the physical work was work where there was no other member of the police force junior to him who could do the work. 4. Equally, when one looks at what was said about the jobs of station supervisor and custody manager, there might also be no one else nearby to attend to a necessary keeping of the peace or restraining of an offender or preventing an escape. If a person under arrest tries to escape, it appears to be a somewhat otiose exercise to call for somebody else who is not nearby or to use a telephone or a radio to call for somebody; by the time the call is answered, the escapee has well and truly escaped. In my view, the physical activities to which I have referred inherent in the plaintiff's job as sergeant are activities which he was not able to delegate because he was the only person available to do what was required of him or the only person available who could provide assistance that was required by his junior colleagues in, for example, a car patrol. "Incapability" 1. One thing that I wished to add to my reasons is this: the decisions of the IRC to which I have referred continued to use the word "incapability", a noun which I found particularly displeasing. However, I note that the Shorter Oxford English Dictionary notes that the word "incapability" was found between 1630 and 1669 and during the same period there was also found the word "incapableness". However, they are not nouns preferred by the Dictionary which relies on the more prevalent word "incapacity". The word "incapacity" comes from the Latin incapax which is the negative of the word capax which we would translate as capable. The root of course is the verb capio, capere, cepi, captum which means to take into the hand or take hold of, to don clothing, to take food or drink, to catch by hunting or fishing just as we use the word "take" in English to refer to prey being taken, or to capture or seize people by military or similar action which includes arrest. The adjective capax, capacis is derived directly from the verb and can be translated as able to hold capacious or roomy, capable of holding, having a good capacity for things such as food, being able to contain or hold, capable of having or getting or competent to hold or qualify. The adjective capabilis from which we take the word capable was late Latin and an unnecessary combination of the root cap from the verb capere as well as the word abilis which we use in English directly as meaning as able, it having the same meaning in Latin. However, the earlier adjective capax was preferred in Latin and from it we derive the word incapacity which, being more brief than incapability, is much to be preferred to the word incapability. Because the words have a similar root, I see no problem in referring to the concept of being incapable as being incapacity rather than incapability. Orders 1. For those reasons, I set aside the decision of the Police Superannuation Advisory Committee made on 28 November 2019 as delegate for the defendant, and I determine that the plaintiff was incapable of discharging the duties of his office at the time of his resignation on 17 April 1999 by reason of lumbosacral disc damage with mechanical back pain and the potential for a recurrence of left sided sciatica. I order the defendant to pay the plaintiff's costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 March 2022