Industrial Relations Commission New South Wales Medium Neutral Citation: Locker v SAS Trustee Corporation [2013] NSWIRComm 23 Hearing dates: 6 - 7 March 2013 Decision date: 28 March 2013 Jurisdiction: Industrial Court of NSW Before: Staff J Decision: 1. The appeal is dismissed. 2. I reserve the question of costs. The parties have liberty to apply. Such liberty is to be exercised within 28 days of the date of this judgment. Catchwords: APPEAL - SUPERANNUATION - decision of SAS Trustee Corporation - appellant resigned from NSW Police Force in 1998 - application for medical discharge benefit made in 2010 - what version of s 10B(2) of the Police Regulation Superannuation Act 1906 (NSW) is applicable - whether operation of 2007 amendment retrospective - whether appellant incapable from infirmity of body or mind of discharging the duties of a police prosecutor - held - appellant capable of discharging the duties of a police prosecutor at the time of his resignation - appeal dismissed - costs reserved - Police Regulation (Superannuation) Act 1906, s 10B(2) Legislation Cited: Police Act 1990 Police Regulation (Superannuation) Act 1906 Police Superannuation Legislation Amendment Act 2006 Police Superannuation Legislation Amendment Act 2007 Superannuation Administration Act 1996 Superannuation Legislation Amendment Act 2006 Cases Cited: Aveling v UBS Capital Markets Australia Holdings [2004] NSWIRComm 261; (2004) 135 IR 98 Boland v SAS Trustee Corporation [1999] NSWIRComm 488; (1999) 97 IR 127 Morley v SAS Trustee Corporation [2007] NSWIRComm 90; (2007) 162 IR 77 SAS Trustee Corporation v Ainsworth [2011] NSWIRComm 128; (2011) 213 IR 329 SAS Trustee Corporation v Cox [2011] NSWCA 408; (2011) 285 ALR 623 Category: Principal judgment Parties: Robert John Locker (Appellant) SAS Trustee Corporation (Respondent) Representation: Mr J Pearce of counsel (Appellant) Mr T Ower of counsel (Respondent) Baker & Edmunds (Appellant) SAS Trustee Corporation (Respondent) File Number(s): IRC 874 of 2012 Judgment 1Robert John Locker ("the appellant") filed a superannuation appeal on 9 August 2012 against the decision of the SAS Trustee Corporation ("the respondent") given on 1 August 2012. 2The appellant joined the NSW Police Force in May 1987 and resigned on 17 October 1998 as he was suffering from infirmities as a result of a traumatic injury to his right ankle, right foot and right toes. 3On 21 December 2010, the appellant made an application pursuant to the Police Regulation (Superannuation) Act 1906 ("the Act") for a certificate of incapacity that reflected the above infirmities. If successful, the appellant would have received a hurt-on-duty pension. 4The respondent's Disputes Committee confirmed the decision of the Police Superannuation Administration Committee that the appellant was not incapable from an infirmity of body or mind of discharging the duties of his office as a police prosecutor at the time of his resignation on 17 October 1998. 5The appellant who brings this appeal pursuant to s 88 of the Superannuation Administration Act 1996 contends that the Disputes Committee wrongly determined the test of incapacity, as it should have applied the provisions of s 10B(2) of the Act as at the date of the appellant's application for medical discharge, being 21 December 2010 and not at the date of his resignation in 1998. 6Section 10B(2) of the Act governs the granting of a pension entitlement. 7The respondent submitted that the applicable test for incapability is that contained in s 10B(2), as it was at the time of the appellant's resignation from the NSW Police Force on 17 October 1998. 8It follows that the parties disagree as to whether s 10B(2) applies in its pre-amended or current form. The statutory provisions 9Section 10B of the Act has been amended on a number of occasions since its insertion into the Act in 1979. Amendments to the Act in 2006 and 2007 considerably widened the scope of the statutory test to be applied by the respondent when certifying a member or former member of the NSW Police Force as incapable, from an infirmity of body or mind. 10Section 10B(2) of the Act as at 17 October 1998 (date of resignation) provided: 10B Medical examination of disabled member and determination of whether hurt on duty ... (2) An annual superannuation allowance shall not be granted under section 10 to a former member of the police force who resigned or retired unless: (a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, (a1) where the regulations so require, the notification was in or to the effect of the prescribed form, and (b) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was incapable, from that infirmity of body or mind, of discharging the duties of the member's office at the time of the member's resignation or retirement. ... (2B) STC may certify that a former member of the police force was incapable of discharging the duties of the member's office if the member was 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. (2C) In this section: medical advice means the advice of: (a) 2 members of the Police Medical Board, or (b) any one or more medical practitioners nominated by the STC. (3) Where a member or former member of the police force is duly certified under subsection (1) or (2), the Commissioner of Police shall: (a) decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be, and the date or dates on which the member or former member was hurt on duty, and (b) give the member or former member written notification of the decision. 11Section 10B(2) of the Act as at the date of the application for a disability pension provided: 10B Medical examination of disabled member and determination of whether hurt on duty ... (2) An annual superannuation allowance or gratuity must not be granted under section 10 to a former member of the police force who resigned or retired unless: (a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, and (b) if the regulations so require, the notification was in the prescribed form, and (c) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was incapable, from that infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member's resignation or retirement. (2A) For the purposes of determining a member's or former member's incapacity under this section: (a) STC is not to have regard to the member's or former member's actual rank or position or any functions (other than the functions referred to in subsection (2) (c)) of the member or former member at the time to which the certification relates, and (b) the capacity to exercise a function by delegation is not taken to be a capacity to personally exercise the function. (2B), (2BA) (Repealed) (2C) In this section: medical advice means the advice of: (a) 2 members of the Police Medical Board, or (b) any one or more medical practitioners nominated by the STC. (3) Where a member or former member of the police force is duly certified under subsection (1) or (2), the Commissioner of Police shall: (a) decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be, and the date or dates on which the member or former member was hurt on duty, and (b) give the member or former member written notification of the decision. 12The significant addition to s 10B was s 10B(2)(c), which I will return to consider late in this judgment. The appeal 13It was common ground that this was an appeal by way of a hearing de novo to be determined by reference to the state of the evidence and other material that it is appropriate to consider as at the date of the hearing of the appeal. 14The appellant submitted that the following questions arose in the appeal: (1) What is the statutory test? (2) Did the appellant suffer from an infirmity of body or mind? (3) Is there a causal connection between the infirmity and the incapacity at the time of the appellant's resignation? Factual background 15The appellant is 49 years of age. 16Many of the factual matters were not in issue. I therefore propose to set out a summary of the appellant's evidence together with the evidence of the respondent. 17On 16 March 1990 while performing highway patrol motorcycle duties at Wamberal on the Central Coast of New South Wales, the appellant was struck by a motor vehicle that failed to give way at an intersection controlled by a "give way" sign. He sustained multiple fractures to his right foot involving the base of the metatarsus, a swollen right knee and a strained medial ligament. He also had ligament strain to his left ankle and a muscle strain to his right hand. 18The appellant's right foot was placed in a cast and he was unable to walk. He utilised the assistance of a wheelchair for at least one month and gradually progressed to crutches and then a walking stick. He said he was on sick leave "for a number of months and returned to work on restricted duties for approximately six months". After the accident his mobility declined considerably. He described some of his restrictions as follows: Lack of flexibility in the right ankle to the point where I cannot fully "squat" on that leg. This causes pain and restriction on any activity causing me to squat and particularly on stairs. Continual residual swelling and pain. Considerable lack of strength in both the ankle and foot. Significant pain across the top part of the foot causing extreme discomfort and restriction on movement. 19After the appellant returned to the Highway Patrol, he re-injured his right foot and right ankle, due to its weakness, while carrying out motorcyclist duties and had further periods off work. He gave two examples. The first related to an injury to his foot and ankle after he inspected a semi-trailer's load and dimensions when he jumped down from the semi-trailer onto the roadway. He was off work for approximately two weeks as a result of re-injuring his right foot and right ankle. The second related to an occasion when he stopped his motorcycle and placed his foot on the ground, which "gave way" due to the area being partially wet. He fell to the ground with the motorcycle. He felt pain in his right foot and right ankle and was again off work on sick leave for around two weeks. 20The appellant said that there were other incidents, but he could not recall the specifics and although he attempted to obtain his medical records from the NSW Police Department, he was informed that they no longer existed. As a result of the accident of the accident, the pain and restrictions to his right foot and ankle become worse and he struggled to perform his duties. He commences studying law with a view to transferring to the Prosecutions Branch. 21In or around 1995, he determined that he could no longer continue to work as an operational Highway Patrol Officer, as he could not function to the best of his ability. He considered he may put both himself and other officers at risk. He transferred from the Highway Patrol to the Prosecutions Branch of the NSW Police Force. 22The appellant took up the role of police prosecutor from 1995 to October 1998, which he said when he retired, was distinctly different to what police prosecutors do today. During his time, police prosecutors wore appointments including a firearm and handcuffs and had all the powers of "street police". Police prosecutors were responsible for prisoner security within a court room. The "dock area" did not have the locking mechanisms that they do today and prisoners sat freely within the dock. There were very few support staff that could be relied upon as security assistance and it was also quite often the case that there were no other uniformed Police within the court room or court complex. 23The appellant recalled a number of occasions involving physical incidents where he was required to arrest and detain persons who were either attempting to flee from the court room or dock area after having been placed into custody. He also was involved in breaking up physical and violent confrontations outside the court room or in the public areas outside the court house. 24He recalled three specific incidents in respect of arresting fleeing prisoners at Gosford and Wyong Local Courts. In one instance, he was appearing with senior police prosecutor, Sergeant Bernard Kozakiewicz, when a prisoner jumped from the dock and ran towards the Bench in an apparent attempt to attack the Magistrate. The appellant and Sergeant Kozakiewicz tackled the offender and a violent struggle ensued. On another occasion, a prisoner jumped from the dock and attempted to flee from the court. The appellant gave chase and tackled the prisoner and restrained him until uniformed police attended. On a third occasion at Gosford Local Court, the appellant and Sergeant Kozakiewicz were forced to restrain and arrest a number of persons who were fighting in the public foyer area of the court. 25These examples caused the appellant significant pain. He said that there were many other times where police action was required and he chose to allow others to take a more primary role in those disturbances and arrests or ignore the problem due to the restrictions he had with his mobility and the fear he would be injured had he involved myself. 26The appellant said that he became disheartened at the fact that he could not perform his duties effectively and was placing both himself and others at risk because of his limitations caused by the injury to his right foot and right ankle. 27As I have already observed, on 17 October 1998, the appellant resigned from the NSW Police Force. Three days later he commenced work as a law clerk. From December 1998, he commenced working as a solicitor. He currently operates as a sole practitioner with his practice located at The Entrance on the New South Wales Central Coast. He specialises in criminal law. 28In April 1999, the appellant stepped off a stool and suffered a fractured dislocation of the right ankle. He had internal fixation of the ankle which was removed in October 2008. Appellant's witnesses 29Mr John Kinney, a retired police officer and a friend of the appellant stated that in late 1997/1998 the appellant complained to him about having difficulty being able to squat and run and that he was concerned about the safety of his colleagues. 30Mr Kinney had suffered an injury to his hands and his evidence was that he and the appellant discussed their respective injuries and difficulties in performing their work. 31Mr Kinney recalled a further conversation with the appellant in or around September 1998, as that was the time Mr Kinney thought he was going to be medically discharged from the NSW Police Force. During this conversation, Mr Kinney stated that the appellant said to him that his ankle was no better and that he was going to "get out". He did not recall being told by the appellant that he was studying law at this time and had obtained a job as a law clerk. 32Mr Kinney also gave evidence about the role of a police prosecutor and the security in place at Local Courts in the 1990s. His evidence corroborated that of the appellant in this respect. 33Sergeant Kozakiewicz is also a former member of the NSW Police Force, who was a police prosecutor. He worked with the appellant from 1994 until approximately 1997. Sergeant Kozakiewicz, who I found to be an impressive witness, gave examples of a number of circumstances where he had been involved in physically restraining and arresting persons within the court or the court environment. He confirmed that during the 1990s, Local Courts did not have any form of electronic court security. He recalled that on more than 10 occasions he had been called to various court offices, both from the body of the court and from his office, by court office staff, to deal with oppressive, violent persons threatening staff or who were engaged in assaults on others within the court office, and/or the court room. 34Mr Kozakiewicz gave specific examples of incidents. He regarded the appellant as exceptional police officer. 35However, as Mr Ower observed, there was absolutely nothing in his statement to suggest that the appellant ever complained to him of a problem in pursuing his duties because of his right ankle. 36It will be recalled that Mr Kozakiewicz and the appellant were involved jointly in at least two security incidents in the courts and its environs which resulted in the restraint of prisoners. 37Mr Victor Rogers and Mr John Shenton, both retired police officers, gave evidence in respect of complaints made by the appellant carrying out his Highway Patrol duties and the circumstances surrounding his transfer to being a police prosecutor. However, their evidence did not deal with the appellant's reasons for resigning from the Police Force. 38Similar evidence was given by Mr Gary Gilday, a retired Superintendent of Police in respect of the requirement for police prosecutors being, on occasions, ultimately responsible for maintaining security and responding to any incidents in the court room and the court precinct generally at the time that the appellant performed the role of a police prosecutor. His evidence was that it was left up to the individual police prosecutors as to whether they wore their appointments or not. Respondent's evidence 39Chief Superintendent Anthony Trichter, who has held the role of Officer in Charge of the State Police Prosecutors and subsequently Commander of Police Prosecutors, over the past seven years, stated that he was not aware of any policy requiring the wearing of appointments in court by prosecutors. Had there been, he said he would have been aware of the policy as he held the position of Leader, Prosecutor Training from 1996 to 1998. 40Sick leave records tendered by the respondent indicated that the appellant had not taken any sick leave in respect of difficulties with his ankle between 1994 and 1998. Medical evidence 41Dr P Endrey-Walder, a General and Trauma Surgeon, provided a medical report dated 2 December 2009 having examined the appellant on that date. This was the only occasion that Dr Endrey-Walder examined the appellant. Relevantly, after setting out the appellant's history including the injuries that the appellant sustained on 16 March 1990 and in April 1999 and viewing X-rays, he stated: As you will appreciate, his current functional deficit and ongoing symptoms at the right ankle would be due to a combination of the two injuries, and it would be difficult to apportion "blame" to one or the other injury so many years on. It is one's impression that by the mid-1990's he would have indeed been sufficiently functionally restricted on account of residual pain at the right foot and ankle to realise his long term incapacity for Operational Police Duties. 42During cross-examination, Dr Endrey-Walder agreed that he had received no history from the appellant in relation to being able to carry out the duties of a prosecutor between 1994 and 1998. He also acknowledged that he only had X-rays of the appellant's ankle from 1999 and not from 1990. His evidence was that he heard nothing specific about the appellant's functioning as a police prosecutor. 43Dr Endrey-Walder provided a second report dated 26 September 2012. Relevantly, this report read: Having reviewed the reports provided as well as my previous report to your firm (2.12.2009), I have no hesitation confirming my opinion that the nature and conditions of Mr Locker's work as a Police Officer and the specific injuries suffered (as reported by me previously) were the cause of his eventual need to resign from the Police Service. In the penultimate paragraph of my previous report (2.12.2009), I had indeed noted that "It is one's impression that by the mid-1990's he would have indeed been sufficiently functionally restricted on account of residual pain at the right foot and ankle to realise his long term incapacity for Operational Police Duties". With particular reference to page 6 of the PSS Medical Report, it is my opinion that by the time Mr Locker resigned from the NSW Police Service he would have been incapable of "standing or sitting for long periods, running and negotiating obstacles to pursue and affect the arrest of suspected offenders". 44Dr Endrey-Walder's evidence was that in providing the second report, he had been provided with a copy of the appellant's statement dated 21 September 2012. When cross-examined, he agreed that there was nothing in the appellant's statement that indicated that the appellant when called upon or required to restrain persons was unable to carry out that task. 45Dr Endrey-Walder gave the following evidence during cross-examination: Q. I want you to assume that he said in the witness box today that standing or sitting so far as his advocacy work was concerned was not he was not prevented to do that by his right ankle condition? A. Probably not sitting, but standing for long periods of time would have aggravated him, but would not have interfered with his capacity to do his work. Q. I want you to assume that he doesn't complain of that as being a problem in the witness box today; can you make that assumption? A. Yes. Q. On the basis of that assumption, that part of your opinion, that is standing or sitting for long periods, so far as it applies to prosecutorial work, is not perfect, is it? A. On that presumption, this is so. Q. Taking the running and negotiating obstacles to pursue and effect the arrest of suspected offenders, your opinion is if that was part of his duties as a prosecutor, then he would not be able at a do it because of his ankle; is that right? A. That's correct. Q. Now when you give that opinion, is it the case that you are looking at the man now, or what he would have been prior to the 1999 incident? A. This is very difficult to say. I had only ever seen him once, and at the time my impression was on the basis of his testimony and previous medical reports that he would have been symptomatic. He remained troubled in the right foot, and the right ankle, less so in the right knee, which had interfered which I thought would interfere with his capacity for operational police duties. Q. Those medical reports you're talking about, were they medical reports from Dr Stokes? A. I would have to go through my file again, there's a number of medical reports, I don't Q. That is alright. I want you to assume there are no medical reports given to you covering the period 1994 to 1998? A. No I don't recall any. Q. And I want you also to assume that Mr Locker did not take any time off work whatsoever in relation to his right ankle, or right foot condition for that matter, between 1994 and 1998. Would it be reasonable to conclude, based on those two assumptions, that he was capable, so far as his right foot and ankle were concerned, of carrying out the duties he was assigned at that time? A. It could be reasonable to presume that he was capable of doing so. As to whether this was accompanied, or caused him any physical discomfort, pain, I don't know. But he was obviously taking that presumption in hand. I accept that he was able to perform his duties. 46The appellant was referred to Dr James G Bodel, Orthopaedic Surgeon, and examined on 3 October 2012. A report was prepared the same day. Dr Bodel set out the appellant's history relating to his injury, and explained his current complaint as: This gentleman has pain over the dorsum of the right foot; He has swelling in the region of the ankle; He cannot fully squat because of stiffness in the ankle; He has increased swelling in the ankle and foot after exercise; and He still has giving way of the lateral aspect of the ankle. 47Dr Bodel was provided with a report from Dr Endrey-Walder. He noted Dr Cher-Sang Kuo's assessment (referred to later in this judgment) and that it was consistent with his clinical findings. He also noted documentation from Dr Ian Stokes dated 8 June 1990 that dealt with the appellant's injuries. 48Dr Bodel's evidence was that the appellant was capable of clerical and administrative roles, working as a security adviser if this was predominantly a non-physical confrontation activity: working as an investigator for an insurance company and practicing as a barrister or solicitor. He further stated that "this gentleman is capable of most work activities except unrestricted heavy labouring or work that requires him to stand for prolonged periods or squat". 49In response to a question whether the appellant's claimed infirmities would or would not have rendered him incapacitated for his prosecutorial duties, his opinion was: This gentleman's infirmities would not have rendered him incapacitated for his prosecutorial duties with the exception that he informs me that at the time that he was doing the prosecutorial work that it was a requirement that he should wear his appointments which included a shoulder holster and a set of handcuffs while he was working in the court room. To do so he would then have to recertify annually in DEFTAC [Defensive Tactics] and "live fire" which he indicates the foot injury would prevent him from. I agree that this gentleman would have difficulty with the type of general duties policing that I have just outlined. 50Dr Bodel's oral evidence was that the appellant informed him that he was able to carry out his duties in the Prosecutions Branch. Dr Bodel was asked to explain his reference to DEFTAC in his report which he said was a form of abbreviation for defensive tactics. He stated that it was a term mentioned to him frequently by police officers was part of an annual recertification for police officers of their skills for defensive tactics. Dr Bodel gave the following oral evidence: Q. Did you take a history that whilst on duty Mr Locker wore his firearm? A. If I may by way of explanation, I it goes to my understanding of his certification of his ability to work, and that was that he was certified fit to work as an operational Police Officer. He implied to me, and I drew the conclusion that that therefore meant while on duty he had to wear his appointments as part of his role as an operational Police Officer, even though he was doing prosecutorial work. He then went into detail as to what his appointments consisted of, which was a shoulder holster and a pair of handcuffs, which is very different to a general duties Police Officer or Highway Patrol officer who wears a much more complicated set of appointments. Q. I want you to assume that in the years leading up to his resignation in 1998, Mr Locker was able to complete successfully what is called a yearly shoot, that is a testing and training with his firearm? A. Yes. Q. This required him to be on a firing range on a day during the year with a number of other officers, and he would have to shoot at a target from various standing and other positions, but that for a fiveminute period during this testing which went over the course of a day, there would be a more emergency type shoot in that there would be a running on the spot, or dashing backwards and forwards to simulate an emergency shoot, and then draw the pistol and fire it? A. Yes. Q. So far as Mr Locker's right foot is concerned, what would be his capacity to do that as at 1998? A. Historically it appears that he was able to that because he indicated that he was recertified annually up to the time he left the Police Service, so I assume therefore that he was capable of doing that. 51During cross-examination Dr Bodel was asked about his reference to DEFTAC in his report. He said that it was based on the appellant's history that he gave to him and was a reference to normal general duty policing work, not prosecutorial police work. His opinion was: ... on the assumption that he has to be annually recertified and, therefore, if he is annually recertified for operational duties, he could be called on at any time to undertake the types of activity that Doctor EndreyWalder referred to. That is what that's about. 52Dr Bodel's evidence was that the appellant informed him that he would have difficulty with general duties policing work because of his foot and ankle injury. That included, running over and jumping fences and arresting people who were resisting arrest. Dr Bodel confirmed that it was his interpretation or understanding of what the appellant had implied to him that he would have difficulty carrying general police duties. 53Dr Bodel's evidence was that the appellant was capable of doing DEFTAC and also "live fire", being the requirements to remain an operational police officer to the day he resigned. This was based on the history that the appellant gave him and the fact that he remained an operational police officer until the day he left the Prosecutions Branch. 54Dr Bodel confirmed that the appellant's infirmities as at November 1998 did not interfere with his ability to work as a prosecutor. He stated that the appellant indicated to him that he was certified as a fully operational police officer at the time he left the NSW Police Force. Dr Bodel's evidence was based on his understanding that the appellant had been certified as a fully operational police officer. This was derived from what the appellant told him and implied to him that being he was a fully operational police officer. Dr Bodel made that assumption, noting that appellant had to wear his appointments. 55During re-examination, Dr Bodel stated that there was nothing in his report to suggest that the appellant complained to him about being unable to do any operational requirements in respect of his duties. 56The appellant was also referred to an occupational physician, Dr Cher-Sang Kuo. Dr Kuo provided a report dated 27 April 2011. After setting out the appellant's history and clinical examination findings, Dr Kuo was asked and answered the following questions: ... 3. Was the applicant incapable of personally exercising in the functions of a police officer on their last day of service with the Police Force? If so, how was this apparent? I do not have any documentation to confirm the applicant was personally incapable of exercising the functions of a police officer. I cannot confirm if this had occurred I only have the account given by the applicant that he had reservations when he had to chase after or apprehend suspects or any persons who were unwilling to be apprehended. ... b. What functions you consider the applicant was not able to perform or was restricted in performing and how this was apparent at the time. I cannot answer the question (see answer above) except that accepting the applicant's account of the problem to be correct, he could have difficulty run and chase after a suspect, he would have trouble jumping off from more than half a metre high ground, walk for long on or run on uneven ground. 4. ... ... b. How each medical condition caused or contributed to the applicant's incapacity to exercise the functions of a police officer and how this was apparent at the time. The applicant worked as the Police Prosecutor, a role which required him to stand for a large part of this day He was also expected to attend to any normal policing matters including carry and use firearms, chase after and apprehend suspects or criminals Please note that I have no other means to confirm the veracity of the applicant's statements and declarations There are no medical or leave records to substantiate his account of the incapacity 57Dr Kuo provided a supplementary report dated 12 September 2012. Relevantly, it stated: According to Mr Locker, his right foot had ached mildly every two months initially, but by the end of his tenure in 1998, it had become unbearable every second week. Comment Accepting Mr Locker's account of the nature and severity of his symptoms to be true and correct, it is unlikely he would have been able to perform the required functions of his duties as a Police Prosecutor durably. Consideration Which version of s 10B(2) is applicable? 58The first question for determination in respect of this appeal is whether the application made in 2010 was governed by the legislation in place at that time, or whether it was governed by the legislation at the time of the appellant's resignation. 59The appellant submits that the 2010 provisions of s 10B(2) of the Act apply. It follows that the question that is required to be answered is: when did the right or obligation to a disability pension accrue? 60Relevantly, the Act has been amended by the Police Superannuation Legislation Amendment Act 2006 which commenced on 30 June 2006 and the Police Superannuation Legislation Amendment Act 2007, which commenced on 4 July 2007. These Acts amended s 10B and other provisions of the Act. 61Pursuant to the amendment in 2007, an annual superannuation allowance or gratuity is not to be granted under s 10 to a member of the NSW Police Force who is discharged unless STC (having regard to the 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 s 14(1) of the Police Act 1990 ("the Police Act"), (s 10B(2)(c)). 62Section 14(1) of the Police Act provides: 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. 63As at 17 October 1998, s 10B(2), which I have set out earlier in this judgment, required that the incapability of a police officer was to be assessed with reference to the appellant's actual duties of office as distinct from the general duties of a constable. 64In Boland v SAS Trustee Corporation [1999] NSWIRComm 488; (1999) 97 IR 127, the Full Bench considered an appeal where appellant was given restricted duties because of an injury he had suffered to his neck. He was required to carry out certain clerical duties in a police station. These duties were found by the Full Bench to be the relevant "duties of office" for the purposes of statutory test. The proposition that "duties of office" encompassed a broader view of the officer's duties was rejected. 65The majority (Marks and Schmidt JJ, Hungerford J dissenting in respect of the outcome) had urged that "the section be revisited by the legislature in order to ensure that a logical, consistent and readily understood regime applied to the important work of police officers" (at 164). The amendment, which followed, was designed to broaden the construction of the section by specific reference to the functions of a police officer referred to in s 14(1) of the Police Act. 66The relevant time that an officer's rights crystallised under the Act has been the subject of consideration by the Supreme Court of New South Wales, Court of Appeal in SAS Trustee Corporation v Cox [2011] NSWCA 408; (2011) 285 ALR 623 and the Full Bench of this Court in SAS Trustee Corporation v Ainsworth [2011] NSWIRComm 128; (2011) 213 IR 329. 67In Cox, an application pursuant to s 10B(2) was made before the legislation was amended in 2006. The trustee erroneously decided after the commencement of the Superannuation Legislation Amendment Act 2006, to apply the post 2006 test in granting the application. The central issue between the parties involved whether the resultant pension should commence from the date of application or the date of resignation. The trustee contended that had the pre-2006 statutory test for incapability been applied to Mr Cox, as it should have been according to law, then he would not have been entitled to his certification. The Court of Appeal accepted this to have been a relevant consideration that should have been taken into account by the trial judge. 68In the context of that matter, McColl JA, after considering which version of s 9A(4) applied to the application, that being, the pre-2006 version, or the post-2006 version, stated at [74] - [75]: [74] I would reach the same conclusion in relation to the 2006 amendments. In my view they did not apply to the 2004 application. They were substantive, not procedural, changes. They "require[d] a different assessment of the effect of the infirmity of body or mind, removing the focus from the office held by the member at the time of his or her resignation or retirement, to the functions of a police officer, generically, identified in the Police Act, s 14(1)": Swift (at [13]). [75] In such circumstances, the general rule is that "a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events": Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 (at 267) per Dixon CJ; see also s 30, Interpretation Act. 69At [129] McColl JA observed: ... Her Honour should also have had regard to s 10B(2) as in force at the time the appellant retired, and his evidence that, at that time, he was able to discharge the restricted duties to which he was assigned. It was also relevant that the appellant's decision to apply the 2006 amendments to the respondent's application was made in the context of the new s 9A(4) regime establishing a presumption that the date from which any such allowance should date would be that of the application, unless exceptional circumstances merited doing otherwise. 70Campbell JA stated at [144] and [151]: [144] Because the 2006 amendments made substantive change to the law, the respondent's application should have been assessed by reference to the criteria applicable at the time he made his application in 2004... [151] The second error is that the judge held that if the respondent had applied in 1988 he would have been granted a benefit. The relevant question for a judge deciding now how to exercise the s 9A(4) discretion, is whether he would have been entitled to a benefit, had he applied for one in 1988. In light of the unquestioned decision in Boland, he would not have been entitled, had he applied in 1988. It is not relevant to the proper exercise of s 9A(4) that, if he had sought the benefit in 1988, the trustee would probably have applied a wrong legal test to his application. The judge incorrectly failed to give significant weight to the fact that the certificate had been granted on the basis of the 2006 test. 71In Ainsworth the Full Bench also addressed the question of whether the statutory test for incapability extended by the 2007 amendment was substantive or procedural. In this matter, an application was made on 7 July 2008 to amend an existing certificate pursuant to s 10B(1) which had been granted in 1997. The trial judge applied the post amendment statutory test for incapability, which is identical for either s 10B(1) of s 10B(2). The Full Bench held that this was an error and that the applicable test was that contained in s 10B as at 1997. The Full Bench observed at [34] - [37] as follows: [34] In our opinion, Backman J erred in determining the amendment to s 10B was procedural. The Certificate of Infirmity issued to Mr Ainsworth on 26 November 1997 certified that he 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'". Backman J added to the certificate "injury to the right knee and injury to the left knee". [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. [36] Under the terms of s 10B(1) that was applicable in 1997, a superannuation allowance was not payable to a member of the police force who had been discharged unless the trustee had certified the member to be incapable, from a specified infirmity of body or mind of the member at the time of the certification, of discharging the duties of the member's office. What the 2008 (sic) [2007] amendment did was to change the basis upon which the right to the superannuation allowance would be determined and the basis upon which the obligation to pay the allowance would be determined. [37] In our opinion, the amendment to s 10B(1) affected an existing right or obligation. Accordingly, it ought not be given a retrospective operation unless the language of the statute expressly or by necessary implication requires such construction. There is nothing in the amending legislation that would indicate that it was to be given retrospective effect. 72See also Aveling v UBS Capital Markets Australia Holdings [2004] NSWIRComm 261; (2004) 135 IR 98 and the Full Bench's discussion of the presumption against retrospectivity at [24] - [29]. 73Applying the principles found in the above authorities and noting as McColl JA observed at [75] in Cox: ... the general rule is that "a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events": Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 (at 267) per Dixon CJ; see also s 30, Interpretation Act. 74I find that the applicable law to be applied in respect of the appellant's application is the provisions of the Act, and in particular s 10B(2) as at the date of the appellant's resignation from the NSW Police Force, that being, 17 October 1998. Was the appellant incapable from a specified infirmity of body or mind as provided for in s 10B(2) on 17 October 1998? 75The test to be applied in order to determine the appellant's application is that the incapability is to be assessed with reference to the appellant's actual duties of office as distinct from the general duties of a constable. In Boland, the restricted duties designated to the applicant to cater for his neck injury was found by the Full Bench to be the "relevant" duties of office. For the purposes of the statutory test, the Full Bench rejected the proposition that "duties of office" encompassed a broader view of the officer's general duties. 76In Morley v SAS Trustee Corporation [2007] NSWIRComm 90; (2007) 162 IR 177, the Full Bench construed the duties of office even where they included the functions referred to in s 14(1) of the Police Act as being able to be performed through delegation. Mr Morley was a superintendent who was the Local Area Commander of the Barrier Region in far western New South Wales. He was medically discharged with a psychological infirmity that had been certified 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 because Mr Morley's rank and office meant that any physical aspect of the duties of a constable which was beyond him could still be performed by delegating the particular task to others. The Full Bench at [35] - [36] stated: [35] Counsel for the appellant contended that there would not be duplication as it is not correct to assume that the duties of a constable cover the field of any other possible duties and it is possible that a person could discharge the duties of a constable but not those of a higher rank. 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 s10B(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. In this way, the duties of a superintendent and a constable were both considered, contrary to the appellant's submissions. This is evident from his Honour's conclusion (at para 108): In my view, because of the appellant's position, he was not required to use physical exertion to discharge "the functions conferred or imposed on a constable" as prescribed by s14 of the Police Act. 77The principles to be derived from the Full Bench decisions in Boland and Morley are that regard must be given to the actual duties required to be performed by the appellant in his rank and in his office as a police prosecutor and whether any of those duties realistically involved tasks beyond his capability, and if so, whether those tasks could be discharged through delegation. 78The appellant agreed that the fundamental duties of a police prosecutor were to prepare matters for hearing and appear in court. 79It follows that it is therefore necessary in order to answer the question whether the appellant was incapable from a specified infirmity of body or mind as provided for in s 10B(2) on 17 October 1998 to consider the available medical evidence and the evidence of the appellant. 80Mr Pearce submitted that: ... the medical evidence in this case is of limited utility. It proves the frank injuries, if I can call them that, and the other injuries and the incapacity in the period from 1990 afterwards in the broad. But it doesn't, and cannot prove, whether the appellant was fit or unfit to perform the duties of a police prosecutor in 1998, and that's just plain commonsense. There's two reasons for that: Firstly, of course, the medical evidence lacks any contemporaneous quality; secondly, as we know, there was an intervening injury in 1999. 81However, Dr Endrey-Walder had no difficulty in providing an opinion in his report dated 2 December 2009 that: It is one's impression that by the mid-1990's he would have indeed been sufficiently functionally restricted on account of residual pain at the right foot and ankle to realise his long term incapacity for Operational Police Duties. 82In a supplementary report dated 26 September 2012, after considering the PSS medical report and a number of statements, Dr Endrey-Walder stated: With particular reference to page 6 of the PSS Medical Report, it is my opinion that by the time Mr Locker resigned from the NSW Police Service he would have been incapable of "standing or sitting for long periods, running and negotiating obstacles to pursue and affect the arrest of suspected offenders". 83This was not the appellant's evidence. He said that he would have probably spent 90 per cent of his time in court. His evidence was that he was in court "most days". He agreed that "by large" prosecutorial work involved clerical and advocacy work. 84The appellant's evidence was that his right ankle did not stop him from doing his advocacy and administration work. Nor did it stop him from undertaking his annual gun training of which he said about 70 per cent was standing and firing from different positions and 30 per cent had a physical component where the officer would be placed under a pressure situation. His evidence was that he had difficulty with the physical part of it, which included running, but his ankle did not preclude him from completing the course. 85During cross-examination Mr Ower asked Dr Endrey-Walder to assume that the appellant did not take any time off work whatsoever in relation to his right ankle or right foot condition between 1994 and 1998. Asked whether it would be reasonable to conclude, based on those two assumptions, that he was capable, so far as his right foot and ankle were concerned, of carrying out the duties he was assigned at that time, Dr Endrey-Walder's evidence was "that it could be reasonable to presume that he was capable of doing so". As to whether this was accompanied, or caused him any physical discomfort or pain, Dr Endrey-Walder could not say. He accepted that he was able to perform his duties. 86Similarly, putting to one side some confusion that arose during the consultation between the appellant and Dr Bodel in respect of the appellant regarding himself as being an operational police officer, Dr Bodel's opinion was that "this gentleman's infirmities would not have rendered him incapacitated for his prosecutorial duties". Dr Bodel did have some reservations as to whether the appellant was able to undertake annually the DEFTAC training and "live fire". However, as I have already observed, this was based on an incorrect assumption. The appellant's evidence is that he was able to undertake this training. 87Dr Bodel was also cross-examined by Mr Pearce in respect of the appellant's capacity to carry out security duties. He confirmed that, in his opinion, the appellant was able to carry out such work as he had been "doing it". 88Turning to the report of Dr Kuo, who was asked whether the appellant was incapable of personally exercising the functions of a police officer on his last day of service, Dr Kuo said: I do not have any documentation to confirm the applicant was personally incapable of exercising the functions of a police officer. I cannot confirm if this had occurred. I only have the account given by the applicant that he had reservations when he had to chase after or apprehend suspects or any persons who were unwilling to be apprehended. 89Dr Kuo said that the right foot healed 3rd and 4th metatarsal fracture and possible right ankle talofibular ligament strain, contributed to the appellant's incapacity at the time he left the NSW Police Force. Dr Kuo also said that: According to the applicant, the top of his right foot across the metatarsals would ache after he had been on his feet for a few hours. When it was bad, there was a sharp cramp going through into the inner (medial) arch of his foot causing him to limp and he would often try to sit down to relieve the pain and pressure in his foot. ... He was particularly concerned when he had to chase after criminals, suspects because he knows his feet and ankle will not cope and will fail him. 90Dr Kuo was also asked how each medical condition caused or contributed to the applicant's incapacity to exercise the functions of a police officer and how this was apparent at the time. He stated that: The applicant worked as the Police Prosecutor, a role which required him to stand for a large part of his day. He was also expected to attend to any normal policing matters including carry and use firearms, chase after and apprehend suspects or criminals. 91Dr Kuo observed that he had no other means to confirm the veracity of the applicant's statements and declarations and that there were no medical or leave records to substantiate his account of the incapacity. 92In a supplementary report dated 12 September 2012, Dr Kuo stated that: according to Mr Locker, his right foot had ached mildly every two months initially, but by the end of his tenure in 1998, it had become unbearable every second week. 93Dr Kuo commented that: Accepting Mr Locker's account of the nature and severity of his symptoms to be true and correct, it is unlikely he would have been able to perform the required functions of his duties as a Police Prosecutor durably. 94He added: However, if some of the limitations of his duties can be accommodated, such as not requiring him to chase after offenders or to arrest them, allowing him a stool to sit down during his court attendances and not requiring him to wear a gun belt, I believe it is conceivable that he could still perform the essential duties of a Police Prosecutor. 95The appellant did not resile from what he told Dr Kuo that at the end of his tenure in 1998 that it [the ankle] had become unbearable every second week. 96I have difficulty in accepting the appellant's description of his right ankle as being an accurate indication of what he was suffering in 1998. There is no medical evidence to support it, nor is the evidence that the appellant was obtaining any treatment in respect of his ankle at this time, or that he took any time off work because of unbearable aching in his right foot every second week. Furthermore, he immediately commenced employment as a law clerk on tendering his resignation and was admitted as a solicitor some three months later. The major part of his practice as a solicitor involves criminal law and "pretty much all appearance work and a fair amount of standing". 97The appellant's evidence was that even when he was required to sit and stand in carrying out his police prosecutorial duties, he was able to cope with the work so far as his ankle was concerned. There is no evidence of any formal complaint to his supervisor in respect of carrying out his duties as a police prosecutor prior to his resignation. 98The essence of the appellant's complaint in respect of the duties that he was unable to carry out are those involving the role of a constable. The evidence does not enable, in my view, a finding to be made that the appellant's duties included the operational duties of a police officer. There certainly was some elements of those duties, on the evidence, which involved duties of a physical nature. That element would appear to be that from time to time the appellant was required to quell disturbances that occurred in the court, or to chase offenders who would jump the dock. 99During his period as a police prosecutor there was one example of a potential attack on a magistrate and another of an offender jumping the witness box and fleeing the court. However, in respect of the security aspect of the appellant's duties, there is no evidence that between 1994/1995 and 1998 that the appellant was unable to perform those duties. In respect of the examples that I have referred to earlier in the evidence, particularly those given by Mr Kozakiewicz, where the appellant assisted him in detaining a prisoner, the appellant completed the task without any complaint. Although the evidence is that disturbances at or around the courts were not frequent the evidence is also that there were emergency procedures in place to deal with disturbances, including an emergency button provided to magistrates. 100The evidence discloses that, on occasions, there was only the appellant and magistrate, together with the accused, in court. However, the evidence does not demonstrate that the appellant during a four year period was unable to carry out his prosecutorial duties because of any problem in respect of his right foot. 101After outlining various incidents that he had been involved in, in respect of prisoners and confrontations outside courts, the appellant's evidence was that during his time as a prosecutor, there were a number of similar incidents where he was required to perform the function of a police officer. There were also many other times when police action was required and he chose to allow others to take a more primary role in those disturbances and arrests, or ignore the problem, due to the restrictions he had with his mobility and to avoid being injured had he involved himself. 102The appellant's evidence was that he came to the conclusion that he could not continue in the role as a police prosecutor because of problems with his right foot. It was this concern that led him to tender his resignation in November 1998. 103However, as I have already observed, the reality of the appellant's position was that he was studying Law over the four year period that he was a police prosecutor. Upon resigning from the NSW Police Force, he was immediately employed in a law firm. The clear inference, in my view, is that by 1998 the appellant had chosen a different career path. 104I am not persuaded, on the evidence, that the appellant was incapable of carrying out the duties of his office, those being the duties of a police prosecutor, at the time of his resignation. The appellant took no time off work between 1994 and 1998 while working as a police prosecutor because of the injuries he suffered to his right foot and right ankle in 1990. He also did not complain to his supervisors of any problems he was having with his right foot and ankle that was affecting the performance of his duties as a police prosecutor. In addition, the medical evidence does not enable a finding to be made that the appellant was incapable of carrying out the duties of his office at the time of his resignation from the NSW Police Force. 105The appeal should therefore be dismissed. Orders 106I make the following orders: 1. The appeal is dismissed. 2. I reserve the question of costs. The parties have liberty to apply. Such liberty is to be exercised within 28 days of the date of this judgment. ********** 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: 28 March 2013