Industrial Relations Commission New South Wales Medium Neutral Citation: Ainsworth v SAS Trustee Corporation (No 2) [2013] NSWIRComm 17 Hearing dates: 23/04/2012, 24/04/2012, 30/08/2012, 31/08/2012 Decision date: 14 March 2013 Before: Backman J Decision: The appeal is dismissed. Catchwords: APPEAL - s 88 Superannuation Administration Act 1996 - appellant discharged from police force on medical grounds - appellant appeals against a decision of the respondent not to amend his Certificate of Incapacity by adding specified infirmities including injuries to both knees - appeal successful at first instance - on appeal to Full Bench, Full Bench remits for determination the matter whether the appellant's knee injuries constituted a specified infirmity in accordance with the version of s 10B(1) of the PRS Act that applied as at 26 November 1997 (the time of certification) - consideration of the evidence by reference to the 1997 version of s 10B of the PRS Act as that version was construed by the Full Bench in Morley v SAS Trustee Corporation (2007) 162 IR 177 - appellant occupied the position of Patrol Commander at Dapto with the rank of Inspector at the time of his medical discharge - whether appellant incapable of discharging the duties of his office considered by reference to whether the appellant was able to delegate those duties he was incapable of discharging personally because of his physical impairments - Held: appellant was able to delegate those duties - test that appellant was incapable of discharging the duties of a Patrol Commander because of his knee injuries as at the date of his medical discharge not satisfied - appeal dismissed Legislation Cited: Police Act 1990 Police Regulation (Superannuation) Act 1906 Superannuation Administration Act 1996 Cases Cited: Ainsworth v SAS Trustee Corporation [2010] NSWIRComm 113 Morley v SAS Trustee Corporation [2006] NSWIRComm 320 Morley v SAS Trustee Corporation (2007) 162 IR 177 SAS Trustee Corporation v Ainsworth [2011] NSWIRComm 128; (2011) 213 IR 329 Category: Principal judgment Parties: David Ainsworth (Appellant) SAS Trustee Corporation (Respondent) Representation: Mr P O'Rourke, of counsel (Appellant) Mr T Ower, SC (Respondent) Oates & Smith (Appellant) SAS Trustee Corporation (Respondent) File Number(s): IRC 461 of 2009 Judgment 1In SAS Trustee Corporation v Ainsworth [2011] NSWIRComm 128; (2011) 213 IR 329, the Full Bench remitted the following matter for determination: The matter of whether the knee injuries suffered by Mr Ainsworth constituted a specified infirmity in accordance with the version of s 10B(1) Police Regulation (Superannuation) Act 1906 that applied as at 26 November 1997 and as that provision was construed by the Full Bench in Morley, is remitted to Backman J for determination. 2In Ainsworth v SAS Trustee Corporation [2010] NSWIRComm 113, I determined the appellant's appeal against the respondent's decision to decline to amend his Certificate of Incapacity, by reference to the version of s 10B of the Police Regulation (Superannuation) Act 1996 (PRS Act) which applied as at the date the respondent made its determination not to amend the Certificate (on 9 October 2008). The Full Bench held that the version of s 10B which should have been applied at first instance was the version in force at the time of certification which was 26 November 1997. 3In order to place this matter in context, it is necessary to set out some background. I intend to do this by extracting relevant parts of the first instance decision (set out below): [1] The appellant, David John Ainsworth, has appealed under s 88 of the Superannuation Administration Act 1996 (SA Act) against two determinations made by the respondent, SAS Trustee Corporation (the respondent). In the first determination, dated 9 October 2008, the Disputes Committee, on referral by the respondent, declined the appellant's request to have his Certificate of Incapacity (Certificate) amended by adding to it the infirmities, "hearing loss and tinnitus and injury to right knee and injury to left knee". The stated basis for declining to amend the Certificate was expressed in a letter of 9 October 2008 as follows: The Committee determined this matter pursuant to section 67 of the Superannuation Administration Act 1996, be declining to amend the infirmity specified in the certificate of incapacity issued to Mr David Ainsworth on 26 November 1997 because he was granted the infirmity that he claimed, either expressly or implicitly, as at November 1997 and therefore, he cannot be a person aggrieved by the terms of that certificate. [2] The Certificate dated 26 November 1997 was issued following Mr Ainsworth's application to the Commissioner of Police for a medical discharge on 20 April 1997. In that application, the appellant claimed that he was incapable of discharging the duties of his office, and any other office not lower in rank to his then current position, by reason of the medical conditions, "post traumatic stress and severe post-traumatic stress".[3] The application for medical discharge was sent under cover of letter dated 24 July 1997 by the employee assistance branch of the NSW Police Service to the Police Superannuation Advisory Committee, a body with the delegated authority of the respondent with respect to Police Superannuation Schemes, to certify whether an officer is incapable under relevant provisions of the Police Regulation (Superannuation) Act 1906 (PRS Act) of discharging the duties of his or her office. The letter contained a recommendation that Mr Ainsworth's application for medical discharge be accepted. It advised that the appellant had been diagnosed as suffering from, "post traumatic stress disorder; reactive anxiety and reactive depression". Also attached to the letter were documents, including medical reports concerning the appellant's psychological infirmities. In addition, there was a brief reference to the appellant's right knee injury, expressed in the following way: There is medical evidence on file concerning a Right Knee condition. However, the Inspector has not claimed it as permanently incapacitating him, nor has it been raised by the PMO. [4] The Certificate certified that the appellant was "incapable, due to the specified infirmity of 'Post traumatic stress disorder; reactive depression and anxiety' of discharging the duties of his office and 'any other office in the police force'". [5] After the Certificate was granted, a delegate of the Commissioner of Police, on 8 December 1997, determined, in accordance with s 10B(3)(a) PRS Act, that the infirmities as certified (post traumatic stress disorder, reactive depression and anxiety) were caused by the appellant being "hurt on duty". [6] As a consequence, Mr Ainsworth was medically discharged from the NSW Police Force on 8 January 1998 and he commenced receiving a superannuation allowance in terms of s 10(1A) PRS Act. That superannuation allowance was equal to 72.75 percent of the appellant's attributed salary of office. [7] On or about 22 July 1998, the appellant's superannuation allowance was increased from 72.75 percent to 77 percent by the respondent pursuant to the provisions of s 10(1A)(b) PRS Act. [8] Subsequently, the appellant commuted part of his superannuation allowance. [9] On or about 29 November 2007, the appellant's superannuation allowance was again increased by the respondent to 84 percent of his attributed salary of office pursuant to s 10(1A)(b) PRS Act. [10] Mr Ainsworth, through his solicitors, filed a Statement of Claim on 9 May 2008 in the District Court of NSW. That Statement of Claim, in effect, appeals against the decision of the respondent to increase the superannuation allowance to 84 percent. The Statement of Claim seeks a determination, in terms of s 10(1A)(c) that the appellant is "totally incapacitated for work outside the police force and ... was hurt on duty because (he) was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment". If successful, Mr Ainsworth's superannuation allowance would increase to an amount somewhere between 85 percent and 100 percent of his attributed salary of office. [11] The purpose of the present proceedings, so the Court was told, is to obtain certification of infirmities in addition to those already certified. In the event that the Court determines the additional infirmities, the Commissioner of Police will then need to determine whether or not, in terms of s 10B(3)(a) PRS Act, the additional certified infirmities were caused by Mr Ainsworth being hurt on duty. If this occurs, there will be relevant infirmities additional to those already certified for the District Court to consider when determining whether or not Mr Ainsworth is totally incapacitated. [12] The amendment to the Certificate granted on 26 November 1997 was sought by letter dated 7 July 2008, which was expressed in the following terms: We act for the above who we understand was provided with a certificate of incapacity pursuant to Section 8(1) and 10B(1) of the Police Regulation (Superannuation) Act 1906, as amended. It certified that your member was incapable of performing his duties due to the infirmities of "post traumatic stress disorder, reactive depression and anxiety" which was caused by the member being hurt on duty. At the time of applying for his medical discharge your member was suffering from the infirmities of "hearing loss and tinnitus and injury to right knee and injury to left knee" which has (sic) been omitted from the certificate of incapacity. We request that the infirmities of "hearing loss and tinnitus and injury to right knee and injury to left knee" be placed on that certificate. We enclose the following reports: 1. Dr Deveridge dated 21 March 2005.2. Dr Silva dated 23 August 2005.3. Dr Thomson dated 12 July 1994.4. Dr Tamhane dated 2 June 2006. [13] The response to the letter of 7 July 2008 was the determination of 9 October 2008 (the first determination). The second determination dated 20 October 2009 advised as follows: I advise that the Disputes Committee met on 19 August 2009 and resolved that: The Committee determined that in the event that the Industrial Court of NSW finds Mr Ainsworth to be "an aggrieved person", then the evidence still doesn't justify any addition to the s 10B(1) certificate". It is intended that this determination will enable all matters in dispute to be decided by the Industrial Court at the same time, and obviate any need to refer the matter back to the Disputes Committee for further consideration. 4As at 26 November 1997 s 10B, relevantly, provided: (1) An annual superannuation allowance shall not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of discharging the duties of the member's office. ... (2A) STC may certify that a member of the police force is incapable of discharging the duties of the member's office only if the member is incapable of discharging the duties of the office in the police force in which the member is then employed and also any other office in the police force: (a) which is available to the member, (b) which is not lower in rank than the office in which the member is then employed, and (c) in which it would be reasonable to expect the member to be employed. 5The version of s 10B in force on 9 October 2008, relevantly provides: (1) An annual superannuation allowance or gratuity must not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990. ... (2A) For the purposes of determining a member's or former member's incapacity under this section: (a) STC is not to have regard to the member's or former member's actual rank or position or any functions (other than the functions referred to in subsection (2)(c)) of the member or former member at the time to which the certification relates, and (b) the capacity to exercise a function by delegation is not taken to be a capacity to personally exercise the function. (2B), (2BA) (Repealed) 6For present purposes a critical difference between the two versions of s 10B(2A) is that the 1997 version required regard to be had to an appellant's actual office (rank or position) as at the time of certification while the 2008 version (applied in Ainsworth at first instance) expressly states that regard is not to be had to the member's actual rank or position at the time to which certification relates. The practical effect of the differences between the two versions was explained by the Full Bench in Ainsworth at [35]: Under the earlier version of s 10B(1), and consistent with the decision in Morley, the appellant would have been required to determine whether the respondent was incapable, because of his knee injuries, of discharging his duties by reference to the particular rank or position held by him at the time of certification, namely, Inspector/Patrol Commander. In those circumstances a knee injury might not have constituted an infirmity for the purposes of s 10B(1) because of the relatively sedentary nature of the work of an Inspector/Patrol Commander. However, in adding the knee injuries to the Certificate of Infirmity, Backman J did so on the basis of applying the current version of s 10B(1). That had the effect of enlarging the scope of the appellant's liability because the test to be applied is whether the respondent was incapable of personally exercising the functions of a police officer, making it more likely that the necessary infirmity existed and thereby providing access to a superannuation allowance that might otherwise have not been payable. 7At the time of his medical discharge (on 8 January 1998), the appellant's relevant duties of office were those to which he had been assigned, namely, as a Patrol Commander at Dapto Police Station holding the rank of Inspector. Those duties were largely managerial and administrative, that is, supervisory duties, however, there was no real contest between the parties that the appellant's duties also incorporated operational, as in physical, aspects. 8The parties' respective submissions focussed in large part on the issue of delegation. In this respect, both parties referred to the Full Bench decision in Morley v SAS Trustee Corporation (2007) 162 IR 177, in particular, with regard to the construction by the Full Bench of "date of ... office" as it appeared in a third, intermediate, version of s 10B of the PRS Act. The appellant noted in written submissions that the version of s 10B considered by the Full Bench in Morley was, relevantly, different from the 1997 version in two respects: (i) In s.10B(1) there was added the words "of the member at the time of the certification" after the words "from a specified infirmity of body or mind". (ii) The addition of s.10B(2BA) which provides:- "(2BA) For the purposes of subsections (2A) and (2B), the duties of the office in the police force in which a member of the police force is then or was employed includes (but is not limited to) the duties of a police officer referred to in s.14(1) of the Police Act 1990". 9Mr Morley was a Superintendent and the Local Area Commander of the Barrier region in far western NSW. He was medically discharged with a psychological infirmity on 31 January 2002. His application to have orthopaedic infirmities relating to his back and knees added to his certification failed at first instance and on appeal it was held that Mr Morley's rank and office meant that any physical aspect of the duties of a constable which was beyond him could be performed by delegating the particular task to others. At pages 193 and 194 of the decision, the Full Bench stated: [31] Further, we agree with the respondent that in approaching the proper interpretation of s 10B(2BA) it is necessary to have regard to how the duties of a constable would be performed and that this is done by reference to the particular rank or office of the police officer under consideration. In other words, we consider that the function of every police officer includes the common law obligations or functions of a constable but that the way in which those functions will be carried out in a particular instance and at a particular point in time will be determined by reference to the particular rank or position held by the police officer under consideration. [32] Accordingly, we do not consider that Staff J was in error when he found that to the extent the appellant had any physical limitations due to his back injury he could have effectively delegated the task to a subordinate. We consider that this is entirely consistent with the notion that the functions of a constable will be performed by a particular police officer in a manner consistent with their position or rank within the police service. This is not to say, as counsel for the appellant sought to do, that the functions of a constable will differ from applicant to applicant but rather that the manner in which those functions may be performed will differ. ... [35] ... Counsel for the appellant contended that the reason for looking at the actual duties as well as the duties of a constable was reflective of the overriding requirement for all members of the police service, no matter what rank they are, to undertake and be responsible for maintaining the peace. [36] This contention is answered by our approach to s 10B(2BA), namely that regard is had to the duties of the office then held by the particular applicant (in this case, the office of superintendent) and the duties of a constable. In having regard to the duties of a constable, it is necessary to have regard to how those duties are performed by reference to the particular rank or position held by the applicant. Accordingly, as already found, it was appropriate for Staff J to find that, in the case of the appellant, he was capable of performing the duties of a constable by delegating certain tasks to more junior officers. Further, certain duties are simply not required to be performed by a person holding a particular rank or position. ... 10Although the determination of the Full Bench in Morley proceeded upon a different version of s 10B, this does not detract, according to the respondent, from the correctness of the above passages with regard to whether the duties of office may be, depending upon the rank or position of the officer concerned, discharged through delegation. It follows, therefore, that regard must be had to the actual duties required to be performed by the appellant in his rank or designated office and whether any of those duties could have been discharged through delegation. 11The appellant, although submitting that s 10B(2BA) of the PRS Act has no application to the present case, and therefore in large part the reasoning of the Full Bench in Morley has no application, nevertheless placed substantial reliance on whether, at the relevant time, he could have, delegated his duties of office. 12A point of distinction between the parties' respective submissions emerged in the appellant's reliance on two quite distinct types of delegation. According to the appellant, the ability to delegate should be seen, properly, as consistent with a senior police officer's role as a leader, manager and deviser of strategies. What is being delegated are the practical and physical steps of an investigation, the execution of a warrant, the attendance at domestic disputes, the breaking up of public brawls, the arresting of offenders and, more generally, the huge variety of physical and dangerous aspects of police work. What is not being delegated are the duties a senior police officer has as a leader, a manager, and a "general". Those functions remain as an integral part of the duties of office. 13The appellant's position was put more clearly in written submissions in the following paragraphs: If there exists as part of the duties of an office particular functions or tasks (be they intellectual or physical) which the police officer assigned to perform that office cannot do because of physical or psychological incapability, then the delegating of those functions by that police officer to another is not evidence of the performance of the duties of that office but, rather, evidence of an incapacity to perform the duties of that office. That a police officer may be of sufficient rank so as to be able to delegate (or order or direct) does not alter the fact of incapacity to perform the duties of his or her office. It is not delegation consistent with the duties of an office (regardless of the rank or position attached to that office) for the holder of that office to order another to do what that person ought do himself or herself. 14The respondent contended that the approach advocated by the appellant, if followed by the Court, would lead to error because it is inconsistent with the approach of the Full Bench in Morley. The proper approach, according to the respondent, is to look at whether the appellant was incapable of performing the duties of office, a question of fact to be considered by reference to the evidence. 15The matter in my view is resolved by reference to the content of the order of the Full Bench in Ainsworth when remitting the matter for determination. The order contemplates in express terms that the version of s 10B to be applied is the version as at 26 November 1997, "and as that provision was construed by the Full Bench in Morley". There is nothing in the reasons in Morley, either at first instance or on appeal, which provide support for the appellant's contentions on the issue of delegation. In essence, the appellant contended that any "delegation" of a duty (which forms part of the integral duties of a particular office) which the officer is incapable of discharging does not constitute delegation, but does constitute proof of incapacity. No such distinction between duties integral to a particular office and other duties of a police officer was recognised by the Full Bench in Morley. What the Full Bench in Morley said (at [31]) in the passage extracted earlier in these reasons was that the functions of any police officer include the common law functions of a constable, but that the way in which those functions will be discharged will be determined, "by reference to the particular rank or position held by the police officer under consideration". Although the observations were made in the context of construing s 10B (2BA), as it appeared in the intermediate version of s 10B, the observations are of equal application to the 1997 version. This is so when regard is had to s 14 of the Police Act 1990 which applies to all police officers. The version of s 14 in force at the time of the appellant's medical discharge provided: [14] Additional functions of police officers In addition to any other functions, a police officer has the functions conferred or imposed on a constable by or under any law (including the common law) of the State. 16The Full Bench in Morley accepted the analysis of Staff J at first instance in Morley v SAS Trustee Corporation [2006] NSWIRComm 320. Staff J's analysis proceeded upon the definition of "duties of ... office" referred to in s 10B(2A) which expressly incorporated into that provision, by reason of the insertion of s 10B(2BA), the duties of a police officer referred to in s 14 of the Police Act 1990, that is, the functions conferred or imposed on a constable. A significant part of Staff J's analysis focussed on the issue of delegation of police duties by a senior police officer, which is the same issue under consideration in these proceedings. 17It is sufficient for present purposes to refer in brief to the approach taken by Staff J in Morley at first instance. His Honour noted that there was no issue between the duties assigned to Mr Morley and those carried out by him at the time of his medical retirement: at [34]. Similarly, there is no issue here as to the nature and content of the duties performed by the appellant at the time of his medical discharge. Staff J's intended approach to the appeal was set out in the following paragraphs (at [35] to [38]): [35] In my view, the proper approach to this issue is therefore to treat the appellant as holding the office of Superintendent at Deniliquin at the time of his medical retirement and construe s 10B in light of s 14 of the Police Act and the observations of Hungerford J in Boland. [36] The question that arises is did the injury to the appellant's back and legs affect the performance of his duties as a Superintendent, having regard to the nature of the duties as revealed in the evidence, which I will discuss shortly, read in light of s 14 and the cases referred to in these reasons. [37] It seems to me were this not the case, then it would be unnecessary to consider the specific duties of office because all that would be required to be done was for any officer to contend that his/her duties of office included operational aspects. For example, the inability to apprehend offenders by an officer because of an infirmity of body or mind would thus render the officer incapable of discharging the duties of the member's office. He would be duly certified under s 10B and discharged. [38] The issue for determination is whether the appellant was incapable of discharging the duties of his office as a Superintendent of Police as at his date of discharge (31 January 2002) due to his orthopaedic injuries including any aggravation and exacerbation between April 1995 and 2002 within the meaning of the PRS Act. 18The next stage of my analysis requires me to consider the evidence going to the issue of incapacity by reference to the appellant's "duties of ... office", that is, the duties actually performed by him in the position of Patrol Commander at Dapto at the time of his medical discharge. 19Much of the evidence was traversed in the earlier decision at first instance: for convenience, the relevant parts are extracted below: [60] The appellant's symptomatology with regard to his knee injuries prior to the date of his application to medical discharge is set out in his affidavit: For some years prior to going off on sick report on 5 January 1997 and at all times thereafter up to the date of my discharge (8 January 1998) and ongoing, I was suffering symptoms in relation to my right knee and left knee. In relation to my right knee, those symptoms included constant pain of varying degrees, regular swelling, the necessity to walk with a limp, the sensation of the knee clicking and giving way. These symptoms worsened when I performed physical activities. These symptoms caused me great difficulty in being able to squat, kneel and walk over distances. I had great difficulties in running. I had great difficulties going up and down stairs. I had an increase in my pain and discomfort if I was to walk and carry any substantial weight. The pain and discomfort in my knee would increase significantly with any unexpected or awkward movement of that knee. Over the period mentioned above, the symptoms in my left knee were similar to those in my right but not as severe. These symptoms caused me to have the same disability as I have described in relation to my right knee. At all relevant times and, particularly, as at my date of discharge from the NSW Police, these symptoms and disabilities would have made it impossible for me to perform the full duties expected of me as a police officer. In particular, I would not have been able to run so as to chase suspects or offenders. I would have been able to struggle with, restrain and detain offenders because of the likely impact on my symptoms as a result of unexpected and violent movements. I could not have performed mobile patrols because of the need to remain in a police car for long periods of time. This would have led to my knees remaining in a fixed position within the vehicle causing a substantial increase in the pain and discomfort that I experienced. I could not have performed the duties of a beat police officer as I would not have been able to walk for substantial periods of time. Further, I would not have been able to walk up and down stairs or up and down difficult terrain. I would not have been able to perform rescue or search duties in the event that they involved walking or clambering over uneven or hilly terrain. I would have been able to walk through or crawl in confined spaces. I have earlier made reference to my resignation from SWOS in 1995. The duties performed with SWOS were of a specialised nature and the training required was of a more regular and demanding nature than the duties and training required of a non-specialist police officer. However, parts of the SWOS duties and training could often be encountered, in the course of the performance of their duties by non-specialist police officers. For example, whether I was in SWOS or not, as a sworn police officer, I could be required to chase after suspects (including running, jumping, negotiating flights of stairs, rough, uneven or hilly ground). I could be required to wrestle, subdue and arrest violent criminals. Further, the duties of a police officer always required a capacity to maintain fitness, a capacity to run, climb, crouch, squat, walk, run or crawl in awkward or confined spaces. My difficulties in performing these duties and exercises with SWOS confirmed in my mind that I had an inability to perform these duties and exercises as a police officer at any time after 1995 and certainly at the date of my medical discharge. This inability was because of the degree of pain, swelling, discomfort and giving way I experienced in my right and left knees. Following the high tibial operation performed on my right knee when I returned to work as the Patrol Tactician, I would be sitting in my office with my left foot up as my left ankle was painful and swollen to twice its normal size. As I have indicated, I commenced work as a patrol tactician in January 1992. In addition to the administrative functions of that job, I was required to attend patrol operations (e.g. accident and crime scenes and arrests). However, over time, I noticed was not fulfilling my duties at these scenes. I would delegate tasks that I would otherwise perform. I would stand back rather than become involved in any heavy lifting, awkward movements or carrying. All operations involving drug plantations I would avoid carrying exhibits of any weight. I failed to do these things because if I did do I would experience significantly greater levels of pain in my knees. In the latter part of my service I would have to obtain assistance from other police officers to assist me with a number of matters and to lift heavy objects for me. For example, I would ask other police officers to lift heavy objects for me. Often other police officers would go out and purchase lunch for me as to walk down the street would aggravate the pain and discomfort in my knees. I remember one time it was necessary to move a safe from the office in Wollongong to the Patrol Commander's office. I had to ask four other colleagues to do this whereas before my knee injuries I would have assisted with this job. [61] In addition to the foregoing problems associated with his knee injuries, an incident which took place on 14 November 2006 should also be mentioned. The account of that incident was set out in the appellant's 23-page statement, appended to his application for medical discharge. At that time, the appellant was the Patrol Commander at Dapto. He had travelled to Sydney to attend assessment examinations at Parramatta. While in his hotel room he heard shouts and the sound of a car travelling at high speed. He looked out the window and saw two people, whom he thought were plain clothes police officers, approach a Tarago van occupied by a male driver and one male passenger. He witnessed an altercation between the police and the two men which escalated when one of the police officers screamed for help upon discovering that his assailant had a gun. Without thinking, the appellant said he "raced down the stairs" in order to render assistance. He took hold of the offender's leg and was engaged in a "violent struggle" which lasted for about 30 minutes. He described the incident as, "the most violent arrest and most frightening situation that I have ever been involved in". At one stage, the offender bit him on his left arm, drawing blood. [62] In oral examination, the appellant said that during the altercation his knees were "banging on the ground". He said his whole body was "reacting" and that his knees, "in particular were throbbing, aching and the pain in them, especially this right one ... when it stopped both knees were swollen". In cross-examination, he described his actions, running down the stairs, as being motivated by "pure adrenaline". He said his knees were always swollen before the incident and he experienced pain in his knees on a daily basis. He was taking anti-inflammatory tablets for his knees which were prescribed by his G.P., Dr Watson. Medical evidence of incapacity [63] The appellant's account with regard to his knee injuries was largely supported in a number of medical reports which were tendered during the proceedings. In 1993, an orthopaedic surgeon, Dr Neil Thomson, performed an arthroscopy on the appellant's right knee. According to Dr Thomson's report, the examination revealed: ... a degenerative flap tear of the medial meniscus and also degenerative change in the medial compartment of the joint. There was a grade II erosive change on the medial facet of the retropatella surface. [64] The report recommended: The patient may well have some continuing complaints of pain and may have to consider the need for a high tibial osteotomy. [65] Some months later, in August 1993, Dr Thomson performed a high tibial osteotomy on the appellant's right knee. The operation was not entirely successful. In a report dated 15 March 1994, Dr Thomson wrote: This patient has progressed satisfactorily from his right tibial osteotomy. He still has crepitus in the right knee, but range of movement is improved and the pain is subsiding. Unfortunately, he has developed swelling and pain in his left ankle due to overloading his left ankle. He is to see me again with x-rays of his ankles and feet. [66] Further reports by Dr Thomson in 1995 contained the following observations: When reviewed on the 15th March, 1994 he was progressing satisfactorily. There is still some crepitus in his right knee. Unfortunately, at that time he had also developed some pain in his left ankle. Opinion: This man has suffered from early osteoarthritis of his right knee joint affection (sic) the medial compartment. He has suffered a work injury which has aggravated his underlying condition and brought about increase of his pain syndrome. He has required arthroscopic inspection of the knee joint and a high tibial osteotomy to unload the medial compartment of the knee joint. His progress is satisfactory. He has been able to return to work but still has some discomfort arising from the right knee joint. There is always the possibility that there may be further deterioration of his arthritic condition and this may well be accelerated by his injury. It is hopeful that the operative procedure will delay acceleration of the disease. There is always the possibility that if his knee deteriorates he will have to consider a right knee replacement. ... The right knee tends to throb in bed at night and the knee continues to swell. He said that both knees and big toes are swelling and he has swelling in his left ankle. There is some pain in the region of the staple in the right knee after his tibial osteotomy. It may be wise to remove the staple. ... He continues to have pain arising from his knees and left hip. At the present time this is being managed with medication and an exercise program. [67] The appellant was seen by Dr Garry E Scarf on 23 May 1994. In a report based on his examination of the appellant's lower limbs, he wrote: His symptoms related to the medial knee area and thereafter he had persistent symptoms exacerbated by various day to day activities and progressively deteriorating. ... FITNESS Based on today's findings he is fit to continue with police duties of a fairly sedentary nature still at this time. Eventually it is to be hoped that he will be able to get back to more active police work. It is not likely that the will be able to get back to jogging or playing active tennis or other sporting games. ... PROGNOSIS The prognosis in my opinion is unpredictable. He still has quite extensive pathology in his right knee. Management should be directed towards maintaining his quadriceps muscles with an active exercise programme. This would rely on his treating orthopaedic surgeon, Dr Thomson to indicate to him the importance of carrying out this exercise activity as well as to the Police Rehabilitation Department who are apparently supervising these activities. A continuation of the osteoarthritic changes in the medial knee compartment may result in early knee replacement. [68] Dr Ian Bryan, an orthopaedic surgeon, also examined the appellant on 21 November 1994. He prepared a report dated 3 January 1995. He reviewed the appellant's history and set out the results of his examination and conclusions. Some extracts of that report are set out below: Following the osteotomy his knee improved but it is still sore and still tends to swell and it still tends to click and catch. He has a tendency for the knee to give way but there is some catching on the medial side. The knee does not lock. It hurts to kneel and to squat and he cannot run. ... ON EXAMINATION: The patient was a big man. He weighed 14 stone 2 lbs. He had a slight limp. There was a minor effusion in the right knee. There was a slight valgus deformity of the knee which I believe was a correction made at the time of the osteotomy. The osteotomy scar is over the lateral aspect of the leg below the knee level. There was ½" wasting of the muscles of the right thigh and the muscles are weak. There is ½" wasting of the muscles of the calf. There was tenderness over the medial aspect of the right knee. he had a full extension with 10 loss of flexion. The knee joint was stable. Rotation did not produce any undue clicking or catching. The patella was normal. There was crepitus on movement of the knee. There was somewhat less crepitus on movement of the left knee. ... I believe that he is suitable and able to continue with the work that he is normally expected to do. He would have difficulty if engaged in heavier activities or if he had to engage in more strenuous activities required of a police officer that is on routine duty. [69] Medical evidence obtained after the appellant was medically discharged shows a substantial deterioration of his knee injuries. In cross-examination, in a passage earlier set out in these reasons, it was put to the appellant that given the passage of time he was "telescoping" the deteriorating condition of his knees after 1998 to an earlier point in time. The appellant did not agree with that proposition. ... [76] This leaves the injuries to his knees. It was not contended that the appellant's evidence of the existence and extent of those injuries was anything other than a truthful account. What was contended was that his evidence was inaccurate on the basis that he condensed or shortened ("telescoped") the intervening period between 1997 (prior to his discharge) and 2010 (when giving his evidence) to attribute the more severe condition of his knees in 2010 to their less severe condition, prevailing in 1997. The difficulty I have with the submission is that when the proposition (that the appellant "telescoped" his symptoms) was put to the appellant it was not accepted and there was no other evidence to support it. [77] The question remaining is whether the appellant's evidence and the medical evidence in support show, on the balance of probabilities, that his knee injuries (infirmities) were such as to render him incapable of personally exercising the relevant functions of a police officer referred to in s 14(1) of the Police Act, that is, are the claimed infirmities "causally connected to the incapability to perform the duties"? [78] I do not intend to embark on a detailed analysis of what functions of a police officer are intended to be covered under s 10B(1). Neither party specifically addressed this aspect of the section. In Stanley, Marks J made the following observations on the function of a police officer (at [45]): In having regard to the functions of a police officer, I take into account that whilst many police officers may habitually be engaged in activities of a sedentary or semi-sedentary nature, they may be and are called upon from time to time to undertake strenuous physical activity that would require them to run, scale obstacles, walk over uneven surfaces, ascend and descend steps and physically confront and deal with persons. Indeed, the appellant gave evidence that these types of activities were undertaken by him on a regular basis as part of his work as a detective, being the work that he was engaged in at the time that he resigned. [79] As the Explanatory Notes attempt to make clear, the most recent amendment to s 10B(1) requires a determination which is not based on actual rank or positions or functions. The fact that the appellant, who was a Patrol Commander at Dapto at the time of his discharge, may have had, largely a sedentary or semi-sedentary role, with the ability to delegate is not therefore solely relevant to the determination. [80] Rather, s 10B(1) would appear to embrace all of the functions of a police officer referred to in s 14(1) of the Police Act. According to the Explanatory Notes, the functions to which s 10B(1) is directed are those conferred or imposed on a constable by or under the law (including the common law) of the State. It is unnecessary to explore in detail what those functions might involve: see, for a detailed analysis of those functions, Campbell JA in State of NSW v Tyszyk [2008] NSWCA 107 at [55] to [133]. At minimum, they would require, at times, a police officer to run, jump, scale obstacles and even physically confront an offender in order to restrain him or her. These activities all require, necessarily, a certain strength and flexibility of the lower limbs. The appellant, only weeks before he went on sick leave in January 1997, was involved in these types of activities at Parramatta on 11 November 2006. According to the respondent, the strength and agility with which the appellant was able to respond tended to dispel any notion that his knee injuries incapacitated him for the duties of office. I cannot agree. In my view, what the incident displayed was that the appellant, despite his knee injuries, was able to respond to an emergency situation in order to assist fellow officers. In the appellant's own words, he was motivated by "pure adrenaline". Nevertheless, the effect of the incident, according to him, was to exacerbate an already serious condition. [81] The medical evidence suggests ongoing problems in particular to the appellant's right knee (Dr Thomson, for example). Dr Scarf concluded in May 1994 that the appellant could perform police duties "of a fairly sedentary nature". Dr Scarf noted extensive pathology to the right knee. In his opinion, it was unlikely that the appellant would be able to jog, play active tennis or other sporting games. In January 1995, Dr Bryan concluded that the appellant would have difficulty "with the work he is normally expected to do, or if he had to engage in more strenuous activities of a police officer that is on routine duty". 20In these proceedings further evidence was adduced by the appellant in support of his application to have the Certificate issued under s 10B amended to include his knee injuries. 21The further evidence relied upon by the appellant consisted of an affidavit sworn by him on 27 August 2012. The appellant also underwent extensive cross-examination at oral hearing. Evidence in support was also given by Patrick Francis O'Brien, a former incremental sergeant of police who worked with the appellant for a number of years until he was medically discharged; and, Paul Anthony Davidson, a former incremental sergeant of police who was medically discharged, and who also worked with the appellant. 22In his affidavit, the appellant said that the substantial part of his time as Patrol Commander at Dapto was occupied by command management and administrative tasks. In addition to these duties, he said he was obliged to involve himself regularly in operational policing duties. On those occasions, he would wear his appointments. He described Dapto Police Station as busy. He had approximately 44 serving officers under his command. He often had to leave the Station to attend to operational matters. These included emergencies such as major car accidents, major industrial accidents, house fires or serious crimes. His attendance at those events was necessary he said to ensure the integrity of a crime scene or an accident site and to ensure the safety of those officers under his command, as well as to ensure that sufficient resources were available to deal with each situation. He estimated that he was required to attend those sorts of events at least once a month. 23The appellant said he was obliged to attend emergency situations as the need arose. When he did he was either alone or in company with the sergeant on duty or the Intelligence Officer. The necessity for him to attend arose because only one car crew was on duty at a time at the Station and the crew were often unavailable while attending to other emergency situations. Other emergency situations the appellant said he was obliged to attend (because no one else was available) involved him in physical activities such as giving chase and subduing offenders, as well as going over rough or uneven ground, up and down stairs or climbing over obstacles. In addition, the appellant said that fights breaking out within, or nearby, Dapto Station were a regular occurrence and because of the limited number of officers present he would be obliged to assist in breaking up a fight or in restraining a prisoner. 24The appellant also described in some detail the difficulties he experienced because of his knee injuries while performing his duties. He said that at Dapto Police Station the symptoms and the physical restrictions experienced as a result of his knee injuries got worse. He regularly took medication to alleviate the symptoms. During the first six months at Dapto the appellant said he did all that was required of him operationally, notwithstanding the ongoing pain and discomfort, but that after that he could not perform properly the physical requirements of his job and in failing to perform the physical requirements he put other officers in jeopardy. In particular in relation to his attendance at emergency situations and other events he said the severe pain and swelling in his knees often prevented him from walking or standing and he would have to return to his vehicle to allow the swelling to subside. Upon returning to the police station he said he would have to elevate his legs on a chair for about 15 minutes and while in that position he could not perform paperwork or computer work because he could not reach his desk or the keyboard. 25He also experienced difficulties in the performance of his administrative duties. These duties included the investigation of complaints, regular audits of the performance of staff and attendance at various meetings in the area. The investigation of complaints involved conducting interviews, preparing reports and memoranda. These tasks necessitated prolonged periods of concentration and several hours of sitting at his desk and using the computer. Because of the problem with his knees, the appellant said he would have to break his concentration in order to stretch his legs which frequently caused him to fall behind in the investigation and finalisation of complaints. He often had to excuse himself during meetings in order to go outside and stretch his legs, causing him to miss information and the opportunity to participate in the meetings. 26The appellant said he was unable to perform properly his operational duties because of the problems he was experiencing with his knees. In his affidavit, the appellant nominated seven specific incidents in order to illustrate this inability. These are extracted in full below: Incident - 1995 In late 1995 I was on duty as the Patrol Commander at Dapto. I was in my office, which was located at the front of the police station. I heard screaming and swearing coming from directly outside the front of the police station. I walked from my office to the outside area of the police station and observed two intoxicated males screaming, swearing, pushing each other and verbally abusing a police officer who I recognised as a young constable attached to Dapto Police Station. I saw it as my immediate duty and obligation to assist the police officer as he was alone and outnumbered. I approached the two intoxicated males and asked them to "move on", however, they did not respond and continued to push each other. The constable stepped in between the two males and asked them to separate and "move on". At that moment, I stepped back from the scene as I was concerned that I would be unable to assist the constable, should the need arise to physically restrain one or both of the males, because of the problems with my knees. Incident - 1996 In approximately 1996 I was on duty as the Patrol Commander at Dapto. I was in my office, which was located approximately six metres to the west of the counter/reception area of the police station. I heard screaming and swearing coming from the direction of the counter/reception area. I walked from my office to the counter/reception area and observed at least three intoxicated males and two females screaming, swearing and pushing each other. There were also two police officers present trying to break up the pushing and shoving between the males and females. I saw it as my immediate duty and obligation to assist the two police officers to separate the females from the males in order to stop the violence from escalating. I approached the two females and asked them to walk away from the males, however, they did not respond and I observed that they became more agitated and continued to scream and shout. At that moment I walked away from the group as I formed the impression that the struggle was going to escalate and I would be unable to assist the police officers in physically restraining the individuals because of the problems with my knees. Incident - 21 February 1996 On or about 21 February 1996 I was Acting Patrol Commander at Nowra. On this day there was a large drug plantation operation at Tianjarra Falls which falls within the Nowra command. The operation was attended by members of my Nowra patrol and also by members of the Drug Squad. During the course of this operation I was contacted and advised that shots had been fired from the plantation at police officers. At that point, it was my duty as the Patrol Commander to attend the scene. This was necessary because I had to ensure the security and safety of all police officers at the scene (particularly those immediately under my command), I had to ensure that the perimeter of the plantation was properly secured and that no members of the public would likely be in any danger. Further, it was my duty to ensure that any further resources that may be required would be immediately deployed. I attended the scene with a Senior Constable. Upon arrival, I was obliged to go down a hill. In this process, my right knee gave way as it had done previously and I slipped and fell. Immediately I became aware of swelling in my knee and pain such that I could not perform the duties that I was there to perform. In particular, I could not walk through the bush land that was the perimeter of the plantation nor could I walk to various points at which police officers were stationed to observe and ensure their safety. As a consequence of my incapacity, I was obliged to speak with the Detective Senior Sergeant who had, to that point, been in charge of the operation and required him to perform those tasks which I would otherwise have performed. Of necessity, in my view, the Detective Senior Sergeant would not have been able to do what I had intended to do with the same speed. My concern was that not only could I not physically perform my duties but my failure to perform those duties potentially put other police officers at risk. Similar operations could be carried out within the Dapto Command. I would be obliged to attend. I would have the same problems with my knees. Incident - 7 March 1996 On or about 7 March 1996 I was the Acting Patrol Commander at Nowra. On this day I conducted myself a patrol of the main street of Nowra on foot. I was in uniform and wearing appointments. I did this because intelligence had been received that there was an increase in criminal activity in the area and there had been complaints received from various owners of commercial premises. Part of my duties as a Patrol Commander was to interact with and be responsible to the community at large. On this patrol I had intended to go into various commercial establishments and speak with the owners. This would not only be the performance of my duty in terms of my responsibility to the community but also be an intelligence gathering exercise. As a result of intelligence obtained and complaints received at other times, I had conducted similar patrols (as part of my duties) when Patrol Commander at Dapto. This was part of my duty as a Patrol Commander. I was performing my obligation to the community and I was also gathering intelligence which would, in turn, allow me to more effectively allocate what limited resources I had. This applied both at Nowra and Dapto. On this day, I had walked from the station intending a total return trip of about 2kms. I had walked about half a kilometre when I developed severe pain and swelling in both my right and left knees. This forced me to sit on a nearby brick fence for the best part of half an hour until the extremes of the pain had gone away and I hobbled back to the police station. I was unable to visit any of the commercial premises that I had intended to visit. It was after this incident that I decided that I could not perform this aspect of my duty and, in fact, did not do so again at Dapto. This was a difficult decision for me as I perceived this sort of community liaison to be an integral part of the Patrol Commander's job and important in the gathering and using of local knowledge and intelligence. Incident - August 1996 In August 1996 I was again performing my duties as Patrol Commander at Dapto. On a particular day in 1996 I was obliged to attend a meeting at the Wollongong Police Station. I took the opportunity to visit a diagnostic imaging centre in West Wollongong having recently been referred there for an x-ray. I was in plain clothes. While at the diagnostic imaging centre, I observed a fit, muscular-looking male to enter the premises. I recognised this man as an offender who had recently escaped from police custody at Dapto. I knew enough about the man to realise he was dangerous. I immediately felt fear and apprehension. Although because of my training with SWOS, I believed I could normally physically deal with the fellow, I had grave concerns that because of my physical difficulties (which very much included the problems I was having with my knees) I could not physically deal with his threat. Also, I was certainly aware that had the man recognised me as a police officer and run that I could not give chase because of the pain, swelling and discomfort in my knees. At a point in time, I was able to speak to a staff member at the diagnostic centre and advise that staff member of the predicament. Police officers were called ultimately attending and arresting the man. While waiting for the police to arrive, I remained in the premises. However, I was painfully aware of my physical restrictions (very much including the restrictions associated with my knees) which could have put myself and other members of the public in danger had the offender recognised me. Incident - Late 1996 In late 1996 I was on duty as the Patrol Commander at Dapto. I was in my office. Within the station the only other operative police officer was Sergeant Patrick O'Brien. I heard over the police radio a call for immediate assistance directed to the Lake Illawarra Patrol. This was because of a reported armed holdup in the Warrawong area. There were reports that shots had been fired. Repeated radio calls for immediate assistance had gone unanswered. I saw it as my immediate duty and obligation to respond to the call. I called Senior Sergeant O'Brien and we both went to a police vehicle. Sergeant O'Brien, because of his previous highway patrol experience, drove the vehicle. We proceeded under lights and siren to the scene of the crime. Upon arrival at the scene (it was a bank robbery) I observed a patrol vehicle already present. I heard a call come over the radio that the alleged offenders had been spotted by persons at a petrol service station about 1km north of the bank. Without getting out of the car, Sergeant O'Brien and I proceeded at high speed to that location. Having reached the service station, we observed members of the public to be standing around. This indicated to us that the offenders had departed the scene. By the time Sergeant O'Brien pulled the vehicle to a halt, I was conscious of the fact that my knees, and in particular my right knee, were swollen and very painful. I found it very difficult to try to get out of the car because the sideways twisting movement caused further pain. As a result I asked Sergeant O'Brien to get out of the vehicle and to speak to the persons present who we assumed were witnesses. Having done this Sergeant O'Brien returned to the vehicle and we drove back to Dapto Police Station having radioed in the outcome of our efforts. By the time we got back to the police station I noticed my right knee was very painful and swollen, significantly worse than it had been when I had been sitting at my desk only some 20 minutes or so earlier. Had Sergeant O'Brien and I spotted the offenders and been required to pursue them on foot, I would simply have not been able to do so. This ongoing pain and discomfort in my knees was very common by this time. Incident - 11 November 1996 I have described the incident occurring on 11 November 1996 in my earlier affidavit. Following that incident I had pains and aches in a number of parts of my body. I had pains and aches in my knees, particularly my right knee. Although I did my best to assist the two police officers in what was a very dangerous and dramatic situation, I, effectively, could only grab hold of one of the offender's legs. Afterwards, I was conscious of the fact of the physical limitations that I had during the altercation. While these physical limitations included problems that I had with my shoulder and ankles, I was also very aware of the pain and discomfort and therefore disability that I had in my knees. After this incident, I was particularly concerned that I would be at a disadvantage and a liability in the event of a physical or violent confrontation during the course of my duties. There were other incidents during the course of my time as the Patrol Commander at Dapto which caused me pain, discomfort and swelling in my knees, particularly my right knee. The symptoms and consequential disability in my knees were such that by the time I was medically discharged from the NSW Police Force I could not perform the duties of a Patrol Commander at Dapto especially as they required significant physical capacity. 27There was no dispute during the earlier proceedings before me and in these proceedings that the appellant's account with regard to the existence and extent of his knee injuries was anything other than truthful: see Ainsworth (first instance) at [76]. Having observed the appellant giving evidence in the witness box on two occasions, I formed the view that the appellant's account at all times was reliable and truthful. 28In cross-examination, the appellant agreed that he could have sent someone else to attend to operational duties such as beat patrols, although he performed that role on occasions. It was put to him that it was his choice to perform that role. He said he considered that it was his obligation and part of his responsibilities. He conceded that it was a rare event when no other officers were available to respond to an operational call. On the issue of whether the appellant, as Patrol Commander at Dapto, had a choice as to how operations were conducted, the following exchange took place in cross-examination: Q. And you had more choice as to how the operations would be conducted within the command, correct? A. No, not all the time. We had no choice if the car crew on day shift during my working hours had a charge in there which would tie them up for two hours on a normal drink driving matter. They would have to go through the bail process. If there was a serious crime in there, if an offender was bail refused, that staff would have to take them to Wollongong which would tie them up for another one or two hours and they would be left at the Police station if they were there - there was a quadriplegic Senior Constable who was in Wollongong and he was behind the counter - he did a fantastic job - there was a Senior Sergeant and an Intel Constable. I may not have been there so they would have had to go out and attend a domestic or if I had been there and no one else except the Constable or the Senior Sergeant, I would go out to domestics. Not a lot, but - and pub brawls. I would go out to major situations or just other crime matters and fill in because we had to utilise the staff within our own command patrol. Q. The question I asked you is whether you had more choice than the officers working underneath you? A. I did, but I saw it as my obligation to assist my staff. Q. And that was your choice, correct? A. Yes. Q. Nobody told you to do that, correct? A. I did. Q. Thank you, but nobody underneath your command told you what to do, did they? A. No, they could not. They could advise me, like the Intel officers, on certain matters and the Senior Sergeant - we would discuss matters but there was myself. 29In cross-examination, the appellant said he played some part in operational matters when it was necessary, for example, when the Station was under-staffed or a truck was off the road. He said only very serious accidents or crime scenes required his attendance. On those occasions, his role was to secure the scene, manage resources and attend to safety matters. However, undertaking that role, he said, often required walking and negotiating mountainous countryside, such as the incident at Tianjarra Falls. He agreed that he was able to walk around scenes, but with difficulty, because of his knees. He agreed that he could rest his knees on those occasions by sitting down or sitting in the police vehicle. It was put to him that during those times he was able to discharge his duties as Patrol Commander. He agreed, but said that it took more time because he had to rest his knees. 30The appellant was also questioned at length about his duties inside Dapto Station. His description of those duties was largely consistent with sedentary-type duties. He said he spent a lot of time sitting at his desk and on occasions conducting interviews. After about half an hour he would have to get up and stretch his legs. He said his staff were aware of the difficulties he had with his knees. He agreed with the proposition that because his staff were aware of his problems he was confident that he was able to continue to perform the duties of a Patrol Commander. He said that his administrative work, namely, paperwork and computer work, proceeded at a slower place because he would have to elevate his knees on a chair for about 15 minutes in order to allow the swelling to subside. He agreed that notwithstanding interruptions during the course of his office duties caused by the impairment to his knees, he got things done. 31He was also cross-examined at length about the seven operational incidents he had set out in his affidavit. With regard to the first incident, he agreed that the constable was able to handle the situation. With regard to the second incident, he also agreed that the officers involved handled the situation. The third incident took place at Tianjarra Falls while he was Acting Patrol Commander at Nowra in 1996. The appellant agreed he delegated his tasks to the Detective Senior Sergeant there, who got the job done. The fourth incident, also at Nowra, involved the appellant conducting a patrol of the main street on foot in order to gather intelligence. He agreed that it was his choice to undertake this particular function, and that other officers stationed at Nowra were capable of performing the function. With regard to the fifth incident, which took place at the diagnostic imaging centre at Wollongong, the appellant agreed with the proposition that it constituted a classic example of being able to delegate to someone else the responsibility of effecting an arrest. Similarly, with regard to the sixth incident, the appellant agreed that it was a classic example of his capacity to delegate to someone else. The seventh incident involved the appellant in a violent physical allocation with an offender while he was assisting two other officers. He agreed that despite the physical limitations as a result of his knee injuries in particular, he did what he could and was able to assist in arresting the offender. 32He also agreed with a general proposition that although the role of Patrol Commander included a physical component, he was able to perform the duties associated with those physical aspects, either himself or by delegating the duties to others. 33In re-examination, the appellant was able to clarify that his lack of physical fitness meant he was unable to discharge these operational aspects of his job quickly and efficiently. In addition, because of his physical impairments, other officers were required to either undertake his duties or assist him which resulted in those officers not being fully utilised in the discharge of their own operational duties. 34Both Mr Davidson and Mr O'Brien gave evidence supporting the appellant's account that because of his knee injuries, he experienced considerable pain and discomfort while performing his duties. Since I have accepted the appellant's account on this matter, it is unnecessary to refer in any detail to their respective accounts, although I intend to refer to some of the evidence. 35Mr O'Brien worked with and was supervised by many Patrol Commanders while he was employed in the NSW Police Force. He was well-placed to make general observations about the functions and role of persons who occupied that senior position. In his affidavit he said of the role: ... My observation of their role was that they would be obliged to attend emergency situations when there were no other serving police officers to attend. Particularly over the last 10-15 years up to 1999 I observed that Patrol Commanders more and more frequently would go to emergency scenes such as car accident sites, crime scenes and industrial accidents. They would supervise police officers at the scene and co-ordinate the obtaining of any necessary resources or other emergency services. They would sometimes be obliged to deal with media inquiries. 36In oral evidence, Mr O'Brien agreed with a proposition that the appellant's duties as Patrol Commander were largely supervisory and involved administrative tasks. He also agreed that the appellant co-ordinated and managed the officers under his supervision and that most of the operational duties were carried out by those officers under the appellant's command. He further agreed with the proposition that it was the appellant's choice as the Patrol Commander to attend scenes of disturbance. He did not agree with the proposition put to him on more than one occasion that it was not necessary for a Patrol Commander to do any operational work. He agreed that when a Patrol Commander attended at an emergency scene it was for the purposes of supervising other police officers, co-ordinating access to resources and dealing with any media enquiries. He said that Dapto was a small station in terms of the police numbers by comparison to stations such as Warilla and Wollongong. The relatively small size of Dapto Station meant that the Patrol Commander was aware of everything that was happening there. It invited a more "hands on" approach and the smaller number of staff gave rise to an obligation on the Patrol Commander (the appellant) to attend emergency situations when there were no other serving police officers available. 37Mr Davidson worked with the appellant for many years at Wollongong Police Station. Throughout his professional life he said he developed a close and continuous professional and personal relationship with the appellant. He regarded the appellant as a "very fine Detective" and often sought his advice. He observed the activities of the Patrol Commander stationed at Yass, also a relatively small police station which operated some 16 hours a day. He said the Patrol Commander at Yass would attend all serious emergencies. According to him, the Patrol Commander had an obligation to attend because of the need to ensure the safety of his own staff, the safety of the public and to ensure that a crime scene was properly secured. The Patrol Commander was also responsible for the obtaining and allocating of resources. This often entailed the Patrol Commander's presence at the scene for many hours. 38In cross-examination, Mr Davidson agreed that when the appellant became an inspector, he performed less operational duties than before. He also agreed that the Patrol Commander at Yass had to leave the station to attend critical incidents, but that his tasks while there were "mainly managerial and organisational", and reporting back to the command. 39The version of s 10B in force at the time of the appellant's medical discharge contemplates consideration of whether the appellant, as the Patrol Commander at Dapto, had the ability to delegate, or could have delegated, any of the functions of his office, including those functions he may have been otherwise incapable of discharging himself because of his knee injuries: see Morley (Full Bench) at [32]. 40In Ainsworth at first instance, I characterised the appellant's position as the Patrol Commander at Dapto as, "largely sedentary or semi-sedentary role, with the ability to delegate" (at [79]). The additional evidence led by the appellant in these proceedings focussed on the operational aspects of the position and the difficulties experienced by him in performing those operational aspects. What that evidence reveals is that the appellant experienced considerable difficulties in discharging his operational duties because of the injuries to his knees. What clearly emerges from this evidence is that despite those considerable difficulties the appellant persisted, driven by a strong work ethic and an absolute commitment to discharging his duties as a senior police officer to the best of his abilities. 41The Court accepts that the appellant, by virtue of his senior position, was obliged to attend at emergency situations in order to perform specific functions consistent with the duties of his position as Patrol Commander. Those functions included securing the scene, ensuring the safety of his officers and ensuring that adequate resources were obtained and properly allocated. There was no evidence that the appellant was incapable of discharging, or that he did not, in fact, discharge those functions. 42On occasions, the appellant took part in more strenuous physical activities such as chasing and subduing suspects or intervening to break up fights or restrain persons. None of the specific examples advanced by the appellant of those occasions demonstrated an incapacity on his part to perform the duties associated with those physical activities. With regard to the first operational incident described by the appellant in his affidavit and set out earlier in those reasons, the appellant agreed in cross-examination that the constable was able to take control of the situation. With regard to the second operational incident, he also agreed that the officers involved had control of the situation. 43The appellant conceded that it was a rare event when no other officers were available to respond to an operational call. He also conceded that he had a choice as the Patrol Commander whether to actively participate and assist other officers under his command in operational matters. 44The appellant also gave examples of attending at emergency crime and accident scenes, sometimes in remote areas where he encountered rugged terrain. What the evidence reveals in relation to those examples was that the appellant sometimes experienced great difficulty in negotiating the terrain which in turn hampered his efforts to supervise and manage the particular situation. However, none of the examples given revealed that the appellant was incapable of discharging his supervisory functions. An illustration of one such emergency situation was the incident at Tianjarra Falls. The appellant agreed in cross-examination that he successfully delegated his supervisory functions to the Detective Senior Sergeant who was present. Similarly, with regard to the incident at the diagnostic centre, the appellant was able to delegate to someone else the responsibility of effecting an arrest. In relation to the sixth incident, the bank robbery, the appellant could not get out of his vehicle in order to actively assist because of the pain in his knees. Sergeant O'Brien who accompanied him was, however, on the instructions of the appellant able to undertake the necessary responsibilities. In cross-examination, the appellant agreed that this was another example of his ability to successfully delegate his duties. 45In the fourth example provided by the appellant, the appellant said it was his choice to conduct foot patrols in the main street of Nowra. Implicit in the exercise of a choice is the right to choose. It does not give rise to an obligation. It was within the appellant's power to delegate this particular task to someone else. He agreed in cross-examination that other officers stationed at Nowra were capable of performing the function. 46The seventh incident was also the subject of evidence in the earlier first instance proceedings. In these proceedings, the appellant, under cross-examination, agreed that despite his physical limitations, he was capable of providing assistance in apprehending the offender. As a general proposition in these proceedings, he agreed that he was able to perform his operational duties, either by himself, or by delegating to others. 47This present inquiry under the 1997 version of s 10B necessarily requires a focus on the appellant's actual rank or position at the time of his medical discharge. As the Patrol Commander at Dapto, the appellant's position incorporated a capacity to delegate to others those duties he was incapable of discharging personally because of his physical impairments. The several examples advanced by the appellant demonstrate, together with other evidence relied upon by him, that the appellant was not incapable of discharging the duties of his office, because he was able to successfully delegate those duties to others. Based on all the evidence, I find that the appellant has not satisfied the test that he was incapable of discharging the duties of office of a Patrol Commander holding the rank of Inspector because of the injuries to his knees at the date of his medical discharge. Accordingly, the appellant's appeal must be dismissed. Order 48The appeal is dismissed. * * * * * * 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: 14 March 2013