Industrial Relations Commission New South Wales Medium Neutral Citation: Cook v SAS Trustee Corporation [2014] NSWIRComm 43 Hearing dates: 29 July 2014 Decision date: 26 August 2014 Jurisdiction: Industrial Court of NSW Before: Boland AJ Decision: The Court makes the following orders: (1) The appeal by Geoffrey Cook against the respondent's decision to decline to provide Mr Cook with a certificate under s 10B(2B) of the Police Regulation (Superannuation) Act 1906 is dismissed (2) The appellant shall pay the respondent's costs as agreed or assessed. Catchwords: APPEAL - appeal by former police officer against a decision of SAS Trustee Corporation in which it declined to provide to the appellant a certificate of medical incapacity under s 10B of the Police Regulation (Superannuation) Act 1906 - Injuries to back and neck whilst engaged as a highway patrol officer - Whether appellant incapable of discharging his duties as a highway patrol officer at the time of his resignation in August 1991 - Consideration of medical evidence - Domestic problems at time of resignation - Appeal dismissed Legislation Cited: Police Regulation (Superannuation) Act 1906 Superannuation Administration Act 1996 Cases Cited: Locker v SAS Trustee Corporation (No 2) [2014] NSWIRComm 14 Category: Principal judgment Parties: Geoffrey Cook (Appellant) SAS Trustee Corporation (Respondent) Representation: M Hammond of counsel (Appellant) T Ower of counsel (Respondent) Kim Smith & Associates (Appellant) SAS Trustee Corporation (Respondent) File Number(s): IRC 999 of 2013 Judgment 1Geoffrey Cook ("appellant"), a former police officer with the NSW Police Force, has brought an appeal pursuant to s 88 of the Superannuation Administration Act 1996 against a decision of SAS Trustee Corporation ("the respondent") in which it declined to provide to the appellant a certificate of medical incapacity under s 10B of the Police Regulation (Superannuation) Act 1906. The provision of such a certificate is a prerequisite to a former police officer being granted an annual superannuation allowance or gratuity. 2Mr Cook joined the Police Force in 1980. He was attested as a constable on or about 15 September 1980 and stationed at Kogarah and Rockdale police station, performing general duties until about October 1981. Mr Cook was then transferred to the Highway Patrol Unit at North Sydney on or about October 1981 and was involved in the introduction and roll out of Random Breath Testing. 3On or about 1 November 1981 Mr Cook was transferred to the Highway Patrol Unit at Hurstville. He was stationed there until transferred to the Anti-Theft Squad at Sutherland in 1989. 4At some time in 1990 Mr Cook returned to the Highway Patrol Unit at Hurstville. In 1991 Mr Cook was transferred to the Sydney District Highway Patrol. He resigned from the Police Force on or about 16 August 1991. 5In his affidavit evidence, Mr Cook gave accounts of three accidents in which he was involved. The first was during his stint with the Hurstville Highway Patrol: (a) On or about 21 February 1984 at approximately 7pm in the evening I was involved in a motor vehicle accident whilst on duty ("the First Accident"). At the time I was the passenger of the motor vehicle driven by my partner, Senior Constable Heathcote and we were pursuing a stolen vehicle in the Sydney suburb of St. Peters. I was wearing a seatbelt at the time. (b) When it appeared that we had caught up with the offender and that vehicle became stationary, I attempted to get out of the police vehicle to make the arrest. I opened the door and had one foot out. My left hand was holding onto the car's A-pillar as I was getting out. At this point, the offender reversed his vehicle at high speed into the front of our police vehicle, ramming it three times. On the third occasion the vehicles became stuck together. (c) I subsequently got out of the police vehicle and arrested the offender. (d) After I made the arrest I sat back in the police vehicle. I felt pain all over my body. (e) As a result of this accident, I suffered injuries to my left wrist, neck, lower back and left leg. (f) I was off work for about a month, returning to light duties then eventually to normal duties. Though I returned to normal duties I continued to suffer pain in my back, neck, left wrist and left leg. (g) Notably, my back has been problematic since the First Accident, and my left wrist the same. 6Mr Cook said that following the first accident, he struggled to undertake his normal duties as a police officer. 7In 1985 Mr Cook said he received training as a "slant operator" which involved sitting on a chair operating the newly introduced "fairy slant radar". He said these were light duties and he had no contact with offenders. When the radar he was operating detected a vehicle breaching the regulated speed limit he would "radio the vehicle's details to a police officer down the road, that officer then made contact with the offending driver." Further, that: When I was "two out" in highway patrol my partnering officer would need to carry the radar equipment as I could not do it due to the pain particularly in my back, left wrist and legs. If I was "one out" I would drag the radar equipment along the ground as I could not lift it. I was told not to do this because the equipment would get damaged. As a result of this practice the Officer in Charge purchased a small trolley to carry the radar box. 8The appellant stated that following the first accident he started to lose strength in his legs. He said he could chase an offender a short distance on foot but could not continue to pursue if the distance became longer than 300 metres. Mr Cook said this "deterioration" continued to be the case until he resigned. 9The appellant also claimed that after the accident he could not "effectively wrestle offenders". On or about 28 December 1986 he said he was wrestling an offender, but had to let go of him because he experienced pain in his neck and back. 10Sometime in 1986 Mr Cook said he applied to do the "Solo Motorbike Course" with the Police Force. He said he was refused because of the back injury he sustained in the first accident. He subsequently re-applied on a further two occasions, but continued to be rejected for the same reason. 11The appellant said he received training to perform duties with the Police Aerial Speed Surveillance unit, monitoring speeding vehicles from an aeroplane piloted by a police officer: I would sit in the back seat of the aircraft, look out the window and use a time, distance and speed monitor to track the speed of the vehicles on the roads below. These duties were low impact and performed between 3 to 7 times per fortnight along with my normal highway patrol duties. I continued to do Aerial Speed Surveillance duties until that program was shutdown around 1990. 12Mr Cook described the second accident as follows: (a) On or about 24 May 1988 whilst on duty with Hurstville Highway Patrol I was involved in a further motor vehicle accident at Rocky Point Road in the Sydney suburb of Kogarah ("the Second Accident"). (b) I was the driver of the police vehicle chasing a speeding vehicle northbound. Senior Constable Kusters was seated in the passenger seat of the police vehicle. We were both wearing seatbelts. (c) A "Kombie van" vehicle pulled out from the left side street at Jubilee Avenue, Kogarah and the Kombie van and our police vehicle collided. We were travelling approximately 80km/h. (d) I was thrown forward suffering injuries to my neck, jaw, teeth, and back. (e) I was transported straight to St George Hospital following the Second Accident. (f) I had about a month off work. I returned to light duties. I eventually returned to normal duties. (g) Following the Second Accident I continued to suffer pain notably in my neck and my back. 13The third accident was claimed to have occurred in the following circumstances: a) On or about 8 May 1990 I was involved in a further motor vehicle accident whilst on duty ("the Third Accident"). (b) I was the driver of the police vehicle chasing a speeding vehicle on the Princes Highway in the Sydney suburb of Arncliffe. Senior Constable Gary Smith was seated in the passenger seat of the police vehicle. We were both wearing seatbelts. We were travelling about 80km/h. (c) Whilst in pursuit, a vehicle pulled out in front of us. Our vehicle and the other vehicle collided. (d) I suffered injuries to my neck and back. (e) Following this accident I felt pain all over my body particularly, neck and back pain. 14The appellant stated that following the third accident and after returning from a short stint with the Anti-theft Squad at Sutherland, he recommenced duties with Hurstville Highway Patrol as a slant operator. He did these duties along with his normal highway patrol duties despite continuing to suffer "notable pain in my back, neck and legs." 15Mr Cook said that whilst attending to duties with Hurstville Highway Patrol he was also involved in an incident regarding a brawl at Riverwood where another police officer was being attacked. As he came to the aid of the officer he felt pain in his back whilst wrestling one of the offenders to make an arrest. Another police officer present had to take over the arrest because Mr Cook said he could not continue due to the pain he felt. 16Upon his transfer to Sydney District Highway Patrol Mr Cook continued to perform slant radar operator duties and general highway patrol duties. 17He stated that prior to his resignation he took: extended sick leave, due in part, to my injuries suffered whilst on duty. At that time I was waking up every day with back and searing leg pain. 18Mr Cook stated: I resigned from the Police Force on or about 16 August 1991. A reason I resigned was due to the ongoing pain I was suffering from my injuries as well as not being able to effectively arrest resisting offenders. 19Mr Cook described his activities after resigning from the Police Force: Following my resignation from the NSW Police Force I undertook work as a security manager at Sydney Airport, which was mostly a desk job. In 1992 I purchased a trucking business and was self employed as a driver with Carlton Brewery. Most, if not all of the heavy lifting involved in this job was done by my offsider who accompanied me on the truck to jobs. In 1997 I started my own distribution company with Cadbury's ice cream. This involved delivering ice cream in a truck and there was no heavy lifting involved. In 2000 the pain from my injuries was getting worse and I sold the distribution company and started telecommunications consultancy business called "Utilize". I was working extremely long hours in this business, up to 18 hours per day. I was also driving excessive distances and this job involved long periods of sitting. It reached the point where I could not cope with the amount of medication and driving or dealing with business clients anymore and I sold the business in 2007. I am currently employed as a truck driver, working in a mine in Western Australia. I drive short distances of 1 to 4 kilometres up and down the site. 20The appellant stated that before the first accident he was very active. He said he enjoyed riding motorbikes, racing beach buggies, surfing and was involved in competitive water-skiing and spear-fishing. The appellant claimed he could no longer undertake these activities due to the pain he suffered from the injuries he received as a police officer. 21Mr Cook stated: For most of the years I worked with the Police Force I enjoyed my job and would have continued to be a Police Officer if I was not suffering from pain in my neck, back, legs and left wrist. 22In support of his application the appellant relied on a number of medical reports extending from 1984 to 2014. I will attempt to summarise the diagnoses in the following table: Medical Practitioner Date of Consultation Diagnosis/ treatment/opinion Dr Child (Hospital General Superintendent) 20.9.84 Neck pain, tenderness over left wrist, flexion extension injury to cervical spine. One week bed rest and analgesics Dr Roberts GP 25.2.86 Back pain. Two days off work Dr Conrad 30.4.86 Whiplash injury to neck, back strain, strain to left wrist. Returned to full duties. 15% permanent loss of function of left upper limb Dr Searle Consultant Orthopaedic Surgeon 28.10.86 Left wrist injury a moderate disability. Lumbar ligament strain of permanent nature. Severe disability. Symptoms and disability will gradually increase over time. Permanently fit for only light work Clinical notes 28.1.87 to 25.7.88 Tenderness left hand, neck pain gradually improving St George Hospital 27.5.88 In-patient from 24.5.88 to 27.5.88. Soft tissue injury to neck. Unfit for work for two weeks. Dr Evans 10.6.88 Neck pain, stiffness in neck, no problem with right foot, some discomfort when clenching teeth but no severe pain. Unfit for work for two weeks. Dr Chee/Dr Lim/Dr Giang GP 8.5.90 Back pain Dr Chan GP 17.11.90 Sprain back Not fit for duty 17.11.90 to 19.11.90 Mr Jolliffe Chiropractor 19.11.90 Back strain. Fit to resume work on 22.11.90 Dr Chee/Dr Lim/Dr Giang 29.5.91 Stress, Fatigue. Not fit for duty 29.5.91 to 2.6.91 Clinical notes - Dr Lim GP 14.5.91 to 12.6.91 (seven consults) Problems with wife. Being investigated by Internal Affairs. Feels his career is in ruins. No future for himself in Police. Feels he will be sacked. Wants to resign to get super money for legal expenses. Seeing counsellor. Not sleeping, quite agitated. Was feeling suicidal but this dissipated. Dr Lim/Dr Chee/Dr Giang 13.6.91 Insomnia/fatigue. Not fit for duty until 16.7.91 Dr Lim/Dr Chee/Dr Giang 16.7.91 Insomnia/fatigue. Not fit for duty until 16.8.91 Sydney Imaging Centre 26.10.95 Vertebral alignment normal. Narrowing of the L3/4 and L4/5 disc spaces. Minor osteophytic spurring present at L3/4 level. Pedicles ansd apophyseal points normal. Southern Radiology 3.8.06 CT Lumbar spine exam. L3/4 disc shows minor degenerative changes. Mild bulging at L4/5 level. Lumbrosacral disc shows marked degenerative changes Southern Radiology 6.4.09 MRI Lumbar spine. Degenerative changes, herniation causing neurological impingement on nerves Dr Patrick - Surgeon 28.4.09 Ongoing symptoms of pain, stiffness, sleep disturbance, mood changes are genuine and consistent with and resulting from injuries sustained during course of employment as police officer. Net assessment of permanent impairment/loss: 26% permanent impairment of back; 16% permanent impairment of neck; 12% permanent loss of use of right leg at or above the knee including loss below the knee; 3% permanent loss of use of left leg at or above knee including loss below the knee. Assessments entirely work related Police Medical Record 18.8.80 to 28.6.90 Record notes following relevant injuries reported: 22.2.84 wrist and neck injury; 14.12.84 neck [indecipherable]; 3.3.85 back; 21.10.85 back pain; 25.2.86 back; 25.5.88 soft tissue injury to neck; 11.4.89 back injury. Record shows light duties from 23.3.84 to 26.4.84; 9.2.87 to 17.3.87; 6.5.87 to 25.5.87; 27.6.88 to 26.7.88 Dr Bodel Orthopaedic Surgeon 11.4.2014 Injuries to left hand, left wrist, neck and back occurred as a consequence of the episodes of injury that occurred at work as a police officer. Patient struggling with operational policing duties at the time he resigned. Patient was incapacitated for operational policing duties as a consequence of his injuries prior to his resignation and was incapacitated for operational policing duties on 16 August 1991 because of recurring episodes of physical injury caused by the accidents in which the patient was involved. Patient has 25% overall permanent impairment of back function, 5% permanent impairment of neck function, 10% loss of efficient use of left leg at or above the knee and 5% permanent loss of efficient use of left leg below the knee. 10% permanent loss of efficient use of left arm below the elbow 23In addition to the medical evidence, the appellant also relied on an affidavit of Graeme John Corcoran. Mr Corcoran was a sergeant of police attached to Highway Patrol. Mr Corcoran stated: I have known the applicant, former Senior Constable Geoffrey Cook since he transferred to Hurstville Highway Patrol around 1981/1982. We were on the same shift up until I was transferred to Sydney District Highway Patrol on 8 August 1988. I recall that the applicant was one of the first officers trained in the use of "fairy slant radars" to catch speeding vehicles. This operation suited the applicant following his first motor vehicle accident as it was low impact and had no contact with offenders. Around this time the applicant applied to undertake the Police Motorcycle Training Course. I knew that his application was knocked back by both Sergeant Jack Spencer and Sergeant Norm MacKenzie because his back injury was a limitation to the training involved and work required for an officer to perform upon completion of the course. Up to the applicant's first motor vehicle accident, the applicant was physically fit and engaged in activities such as water-skiing and spear-fishing. Following the applicant's motor vehicle accident and over time, I noticed that the applicant no longer engaged in these activities during our social outings. In 1991 I was a Sergeant at Sydney District Highway Patrol. I was directly in charge of the applicant following a long period of sick leave that he took. Although the applicant was on "full duties" his duties were primarily as a radar operator or seatbelt observer. 24Mr Corcoran was not required for cross-examination. 25In opposing the claim the respondent relied on a number of medical reports. The first of these was a report of Dr Evans an Orthopaedic Surgeon. Dr Evans saw the appellant on a number of occasions they being in July 1984, 29 November 1984, 14 March 1985, 16 September 1985 and 2 September 1986. In a report dated 13 February 1987, Dr Evans recounted the earlier consultations with the appellant. In relation to the November 1984 consultation Dr Evans noted the appellant continued to have neck ache and backache "but he had a fairly free range of movement." There was also some discomfort in the left wrist. Apart from suggesting a splint for the wrist it is not evident from the report that Dr Evans prescribed any further treatment for the neck and back. 26In relation to March 1985 the appellant reported his neck and back were much the same but free movement remained. Dr Evans administered a local anaesthetic to the appellant's wrist and arranged to see the appellant in six months time. Dr Evans noted the appellant was "to continue at full duties." 27In September 1985 Dr Evans noted the appellant's symptoms were much the same except his wrist "was probably a little better." Dr Evans said he tried to assure the appellant his symptoms would settle in the long term. The appellant required no further tablets. 28In September 1986 the appellant reported his neck continued to trouble him and he had been seeing a physiotherapist. Dr Evans recorded the appellant saying there was some lack of movement at the neck and stiffness and aching in the lower back in the morning but which improved later in the day. The appellant continued to have a problem with his wrist but it was not painful. Dr Evans said the neck and lower back moved freely although with some discomfort. 29Dr Evans decided to refer Mr Cook to the Hand Clinic at St George Hospital, but that in the meantime the appellant continued to work. Dr Evans opined that the prognosis was for "recovery neck and lower back" 30The next report was that of Sydney Imaging Group dated 21 November 1995. Mr Cook had undergone a CT Scan of the lumbar spine. The conclusion was: "Large right postero-lateral herniation of the L5S1 disc. Generalised bulging of the L3/4 and L4/5 disc." 31The next report relied upon by the respondent was that of Dr Kwok a Neurosurgeon. The report was dated 27 October 2006 and Dr Kwok saw the appellant on that day. Noting the appellant had been involved in car accident and assaults, Dr Kwok stated: His current problem is low back pain as well as paraesthesia, numbness and weakness in the right leg. This all started after the first accident. There was leg pain initially but not currently. He has a burning sensation around his right heel and his spine can be bent following physical work like carrying the oxygen tanks for the scuba diving. 32Dr Kwok noted the results of the CT scans and undertook a physical examination of the appellant including his legs and feet. Dr Kwok concluded by stating: It would appear that Mr Cook's S1 radiculopathy is a result of the original disc sequestration demonstrated in 1995. This S1 radiculopathy is longstanding and cannot be reversed and as there is no current compressive lesion, nothing further can be done. As far as his back pain is concerned, he does not currently require any active treatment and the pain is controllable. I would therefore not recommend any intervention. He can however improve his symptoms by significant weight reduction as well as muscle strengthening exercises for his back. The best type of exercise for this is swimming. At this stage I cannot offer him any help surgically and I have not arranged further regular review. 33The next report was that of Dr Machart, an Orthopaedic Surgeon. Dr Machart saw the appellant on 17 May 2010 at the respondent's request. Dr Machart noted the following current symptoms: lower back pain, right leg numbness down to middle three toes, weakness in the calf, left leg pain without numbness or weakness, difficulty sleeping, sitting tolerance poor, walking tolerance 500 metres difficulty pursuing hobbies eg, scuba diving. 34Dr Machart opined that the medical condition the applicant had on his last day of service with the Police Force was lumbar discopathy, a disc protrusion on the background of lumbar osteochondrosis. The condition was present since the first accident in February 1984 and progressed in severity. 35Dr Machart said that the appellant was not incapable of personally exercising the functions of a police officer on his last day of service because of the lumbar spine. Dr Machart stated the appellant "left the Police Force because of a nervous breakdown... it appears that he was able to conduct his normal duties in the presence of the lumbar discopathy. 36Dr Machart further opined that on his last day of service the appellant was not incapacitated by the medical condition of lumbar discopathy. He stated that the medical condition deteriorated with the passage of time such that the appellant remained significantly disabled by the condition of the lumbar spine and the condition would continue in the future indefinitely. 37Dr Machart indicated that he disagreed with Dr Patrick that the appellant was incapable of discharging his duties as a consequence of the lumbar spine problem. Dr Machart stated: Mr Cook outlined that this was not the case. He continued to work despite the lumbar condition. He left for psychological reasons. 38Dr Maxwell was an Orthopaedic & Spinal Surgeon who saw the appellant on 22 August 2011 at the request of the respondent. Dr Maxwell recounted the appellant's history as told to him by the appellant including the accidents and had regard to the appellant's medical history. Dr Maxwell observed that at the time the appellant resigned "he was under a great deal of emotional stress and numerous accusations were being made by his ex-wife to the Internal Complaints Department suggesting he was engaged in corrupt practices." 39Dr Maxwell opined that he did not consider it to be clear that the appellant's medical condition relating to his neck and back at the time of his resignation was causally related to an incapacity to perform full operational police duties. Dr Maxwell stated the appellant was able to perform his physical duties at the time of his resignation in August 1991. 40The respondent also tendered clinical notes, in manuscript, of Drs Lim and Chee who were the appellant's treating general practitioners. Reference was made to a number of entries. The first was dated 8 May 1990 and recorded "Back pain - had back pain since 1987 - scoliosis - [indecipherable] to L - Stiffness [indecipherable] painful - Naprosyn [indecipherable]. The next entry was dated 28 June 1990 and referred to a respiratory tract infection. On 1 August 1990 it was recorded the appellant was suffering from pharyngitis. On 20 August 1990 suffered an injury to his left middle finger. In September 1990 the appellant reported an injury to his left knee getting out of car. Then in November 1990 the appellant attended his GP to report cut to left hand/index finger that his ex-wife had inflicted. 41In April 1991 the appellant again attended his GP with a problem to his left shoulder. There are three entries for May 1991 that refer to problems the appellant was having in his relationships, insomnia and fatigue. There is a further entry in June 1991 regarding insomnia/fatigue. In July 1991 there is an entry recording tinnitus, an entry in November 1991 that is indecipherable and an entry in June 1992 recording "vomiting/diarrhoea". 42On 7 September 1992 it is recorded the appellant now owns a brewery truck business and is "much happier". He suffered a cut to his forehead when "a bar on truck sprung into face" - "not needing suture". On 8 March 1993 the appellant was worried about a lump on his back. In December 1993 the appellant reported a problem with his feet. 43Between October 1995 and February 1996 the appellant reported lower back pain problems and pain in right leg (nine consultations). On 20 November 1995 the report stated "Still not getting anywhere with physio. Getting worse. Pain only at back of right leg. No lower back pain..." On 27 October 1997 the appellant reported that "Today pulling keg of beer off truck - lower back pain worsening". 44The respondent also tendered a letter from Dr Mark Davies, Neurosurgeon/Spinal surgeon, to Dr Vinh Giang who had asked Dr Davies to review Mr Cook. The letter was dated 17 May 2010. Dr Davies had last seen Mr Cook in August 2010 "after a successful lumber laminectomy and L4/5 discectomy." The letter went on to state: Thereafter Geoffrey was relatively pain free. He did have some persistant (sic) numbness in the right leg and some subtle weakness of ankle plantar flexion. He continues to dive which does require manipulating diving gear up to 190 kgs Consideration 45It was not in issue that the appellant's claim is to be determined according to the statutory criteria that applied at the time of his resignation in August 1991: see Locker v SAS Trustee Corporation (No 2) [2014] NSWIRComm 14. That criteria was set out in s 10B(2B) of the Police Regulation (Superannuation) Act, which provided that the incapability of a police officer was to be assessed with reference to the claimant's actual duties of office. This may be contrasted with the statutory criteria that applied at the time the appellant made his application for a medical discharge benefit on 25 February 2009. The relevant provision at that time (s 10B(2)(c)) required the respondent at the time of certification, to determine whether the appellant was incapable, because of his infirmity, of discharging his duties by reference to "functions conferred or imposed on a constable by or under any law (including the common law) of the State". 46It follows that the question the Court must ask itself is whether the appellant, as a former member of the Police Force, was incapable of discharging the duties of the office in the Police Force in which he was employed at the time of his resignation, namely, highway patrol officer. 47Mr Cook gave evidence in chief regarding his duties as a highway patrol officer: Q. In that paragraph you state that you were at the Sydney District Highway Patrol Ferry Slant Radar Operator Duties and General Highway Patrol Duties? A. Correct. Q. Can you expand on what those duties entailed? A. I was a radar operator of the ferry slant radar. It involved collecting the radar equipment from the office and putting it on a trolley that they had to provide me to carry the radar and setting it up in the street with a chair to sit and operate the device and a stop crew further up the road. And I would call out approaching vehicles and speeds as required. Q. You performed those duties in the general Sydney metropolitan area? A. I was. Q. What other duties were you performing? A. I was also engaged in a similar duty doing red light squad where again I would more regularly be a stop crew an observer where I would observe the traffic coming through the traffic lights and call it again to a stop crew. There were other duties I was involved in where I would be just a normal car crew. I was a highway patrol field officer trainer and I would be positioned with young constables coming through and I would show them the ropes of highway patrol work as they come up through being a probationary constable. Q. So it was field training officer duties? A. That's correct. Q. Did you perform any other duties in the classroom perhaps? A. No. Q. You also have some evidence about general highway patrol duties? A. Yes. Q. Could you expand on those duties? A. General traffic duties. Travelling around doing clear ways, general traffic stops and emergency responses. Q. Would you perform those duties concurrent with doing the field training duties? A. Correct. Q. Are you able to tell the court what proportion of your duties was the slant radar operator duties and what proportion was the general highway patrol duties? A. It would be half and half. It would be about half and half. I primarily did the slant radar and traffic squad on day shifts, do a week of day shift and a week of afternoons. ... Q. You gave evidence you couldn't run? A. That's correct. Q. Are highway patrol officers called upon to run? A. Yes we were. Q. When are they called upon to run? A. Whenever you get an offender who flees from a site and you're often called upon to go and chase somebody, somebody would dump a car or dump a bike or just while you were talking to them they would just get away and run away. 48In cross-examination Mr Cook was asked some further questions about his highway patrol duties: Q. You said in your evidence in chief that you thought towards the end of your police career your duties were split between half highway patrol and half radar, do you remember that? A. Yes. Q. That was a rough estimate you gave. The highway patrol part of that equation, was that you in a highway patrol vehicle? A. Yes. Q. With someone or by yourself? A. With another person. Q. And so it is the case, isn't it, whenever there was any occasion or first off in those last 12 months you can't recall any specific occasion where a motorist, as it were, did a runner, and you were unable to apprehend him, can you? A. A couple, there's a couple. Q. You don't make mention it at all in your affidavit, correct is that yes or no? A. It's not in there but there's certainly you're asking me the question did people run away from me, yeah people run away from us yes. Q. And your partner apprehended them, correct? A. Sometimes he didn't, he didn't get them either. Q. When? A. One in particular was down in Stanley street East Sydney. I remember we pulled some bloke over on a bike and the next thing you know he hit the tape and gone into the wind. Q. So you didn't give chase, you left your partner to, correct? A. My partner took after him, I went back to the car and went to chase them in the car but gone. Q. And your partner is able bodied, correct? A. Yes. Q. He was not able to affect the arrest? A. The guy had a head start on us. Q. So the fact that the arrest was not effected, had nothing to do with you not being able to catch him, it was your partner who was unable to catch him, correct? A. It's hypothetical. But if there's two people you have a better chance of catching them than the one. Q. You don't know that? A. Neither do you. If you're chasing somebody and you've got a chance to corner them, it's very hard to corner them with one as opposed to cornering them with two. Q. That's the only one? A. It's the only thing I can think of at the top of my heard, there was another incident with the arrest of Serle, bloke at Riverwood. Q. When was that? A. It was in 1990. Q. When in 1990? A. Not sure. Q. You mentioned in para 24 in your affidavit about the brawl you attended? A. That's the one. Q. That was when you were working with Senior Constable Mark Johnson? A. Correct. Q. And you had him take over the arrest because you couldn't continue? A. That's right. Q. That was a situation where somebody else performed the duties that had to be performed, correct? A. Carried on the arrest, that's right. Q. The arrest was effected, correct? A. Yes. 49In re-examination the appellant was asked further questions about his duties: Q. You gave evidence to the question my learned friend asked you about highway patrol duties? A. Yes. Q. In that period before your resignation? A. Yes. Q. And performing those duties with two officers in the car? A. Yeah. Q. During the period that you were at the Sydney District Highway Patrol or Sydney Traffic Office, did you always perform those highway patrol duties with two officers in the car? A. No. 50There cannot be any doubt that Mr Cook suffered injuries to his neck and back during his employment with the Police Force, which does not appear to be in issue. The issue is whether, at the time of his resignation, the injuries had rendered Mr Cook incapable of discharging his designated duties as a highway patrol officer. The onus is on the appellant to prove on the balance of probabilities he was incapable. 51Following his first accident in February 1984 the appellant said he suffered injury to his lower back, neck and left wrist and numbness to his left foot. The hospital report indicated that the appellant complained of pain in the right side of his neck, in the left wrist and hand. As a consequence of his injuries the appellant saw Dr Evans. Dr Evans reports only refer to neck, back and wrist problems. There is no reference to leg or foot problems. The Police Medical Record does not refer to leg or foot problems. The appellant was off work for 30 days and then returned to normal duties. The appellant took a further 25 days (7, 14 and 4) in 1984 due to his back and neck injury. In 1985 days off were 4 in March due to back, and three in October due to back pain. 52In February 1986 the appellant had two days off work for back pain. There were no other days recorded off work in 1986 due to back or neck pain. However, there appears to have been 45 days off work between 28 December 1986 and 11 February 1987 due to "left wrist" and fingers. This was due to an injury that occurred on 28 December 1986. This period of absence appears to have been followed by a period of about 5 weeks on light duties from 9 February 1987 to 17 March 1987 and a further period on light duties from 6 May 1987 to 25 May 1987. During these light duty periods the appellant may have been undertaking an aerial radar surveillance course. There were no days off in 1987 due to neck or back pain. 53In April 1986 the appellant saw Dr Conrad. The appellant reported neck pain, pain in his left wrist, weakness in his left hand and lower back pain. Dr Conrad opined the appellant would have difficulty involving any physical situation such as apprehending criminals. Further, that the prognosis was uncertain as whiplash injuries of the neck were notoriously slow in resolving. 54In October 1986 the appellant saw Dr Searle. He complained of lower back pain that radiated down the left leg and pain in his left wrist. The numbness in his lower limbs had disappeared. Dr Searle described the appellant's disabilities as "severe" and that the injuries caused the appellant to be "permanently fit for only light work". 55Following his second accident in May 1988 the appellant was admitted to hospital. The hospital medical certificate indicated injuries in the nature of "soft tissue injury to neck" with two weeks off work. According to Dr Evans' report dated 10 June 1988 when Mr Cook was admitted to the hospital he had of neck pain, paraesthesia both hands, pain in the jaw and chipped bottom teeth, paraesthesia in the right foot. When Dr Evans saw the appellant neck stiffness remained, there was an ache in the neck, temporal headaches, some ache in the left jaw, paraesthesia almost gone from his hands and "no problem with his right foot now". Dr Evans said the appellant was making reasonable progress but was unfit for a period of two weeks. Dr Evans said the appellant should return to work on selected duties. 56In addition to the 30 days immediately following the accident the appellant had a further one day off in December 1988 due to his "back". The appellant was also placed on light duties from 27 June 1988 to 26 July 1988. 57The third accident occurred on 8 May 1990. It does not appear the appellant was admitted to hospital. Instead, he chose to consult his general practitioner on the day of the accident. The GP certified the appellant was unfit for work for two days due to "back pain". 58There are no further reports of the appellant having visited a medical practitioner regarding any symptoms connected with a back, neck, leg or wrist injury between May 1990 and November 1990 when Dr Chan issued a certificate that the appellant was suffering from sprained back and was unfit for work for two days between 17 and 19 November 1990. The appellant also saw a chiropractor, Mr Jolliffe, on 19 November 1990 who certified the appellant was suffering from L3/L4 strain and was unfit for work until 22 November 1990. 59There appears that there were no further absences due to illness or injury between November 1990 and May 1991. The appellant was certified unfit for work from 29 May 1991 to 12 June 1991 due to "Stress - Fatigue" and again from 13 June 1991 to 16 July 1991 due to "Insomnia/fatigue" and again from 16 July 1991 to 16 August 1991 due to Insomnia/fatigue". The appellant's last day of service was 16 August 1991. 60These periods of unfitness for work due to stress, fatigue and/or insomnia stemmed from domestic problems the appellant was having with his ex-wife and current girlfriend that he reported to the Police Medical Officer on 13, 14, 28 May 1991 and 12 June 1991. The Police Medical Officer referred the appellant to his GP, Dr Chee. At one point the appellant was depressed and suicidal. He was also under investigation by the Internal Affairs Department arising from complaints filed by his ex-wife. At the same time there appears to have been a custody dispute with his ex-wife. 61The records in evidence indicated that in May 1991 the appellant advised the Police Medical Officer he felt his police career was over and he feared he would be sacked. He mentioned to the Police Medical Officer that he wanted to resign to get his superannuation so he could pay his legal expenses. The appellant admitted in cross-examination he was heavily in debt: "I had bills come out my backside in those days. I just it was coming from every quarter." The appellant made no mention to the Police Medical Officer of any injury to his neck or back. 62The appellant was employed as a security manager for a time after he resigned from the Police Force. Then from 1993 he was self-employed as a lorry owner/driver for a brewery - a somewhat odd occupation for someone claiming they were two years earlier incapable of discharging the duties of a highway patrol officer because of a back injury causing referred pain in the right and left legs. In 1997 the appellant began a business making truck deliveries of ice cream that did not involve significant heavy lifting. He then commenced a new business involving a dealership/telecom consultancy. He currently works as a truck driver for a mine in Western Australia. 63The next occasion after November 1990 that the appellant sought medical assistance regarding his back, right leg and right foot was on 26 October 1995. According to the report of Dr Patrick dated 8 May 2009, the appellant had advised Dr Patrick that in 1995 "he simply got up and twisted to the right and had acute back pain." Dr Patrick considered this was not "a frank new injury but just an exacerbation of typical post motor accident symptoms..." 64Scans were done of the injury sites on 26 October 1995, 21 November 1995, 3 August 2006 and 6 April 2009. The appellant underwent a laminectomy and discectomy in July 2009. 65Despite saying in his affidavit he could no longer spear fish or undertake scuba diving it appears the appellant does engage in these sports to a limited extent. Conflicting medical opinions 66There are conflicting medical opinions regarding Mr Cook's capability to discharge his duties as at his resignation date. There is the May 1986 report of Dr Conrad who although expressing the opinion the appellant would have difficulty involving any physical situation because of injury to his neck and lower back, the appellant continued to discharge his full duties for the greater part of the next five years. Dr Patrick also left open the option of the neck injuries resolving. 67Dr Searle, a consultant orthopaedic surgeon, saw the appellant in October 1986 and regarded the lumbar ligament strain and cervical intervertebral disc lesion as severe disabilities causing the appellant to be permanently fit for only light work. As I have observed, for much of the time until August 1991 the appellant discharged those duties that were assigned to him. His period on light duties between the time of the first accident and his resignation was no more than about four months in total according to the Police Medical Record. Given that Dr Searle's report was in 1986, he was in no position to express a view about the nature of the appellant's incapability in August 1991. 68Dr Patrick, a surgeon, examined Mr Cook on 28 April 2009. Dr Patrick's belief was that at the time of the appellant's resignation the appellant was "incapable of discharging his duties as a police officer as a consequence of his specified infirmity of body or mind, namely his significant lumbar spinal and cervical problems." 69Dr Patrick considered the third accident "was the most significant accident in terms of actual injury and continuing symptoms." However, unlike the previous two accidents, the appellant was not transported to hospital and on seeing his GP later on the day of the accident the appellant was certified unfit for only two days due to "back pain". Further, Dr Patrick does not mention in his report the emotional trauma the appellant experienced from May 1991 to August 1991 in relation to the appellant's domestic crises and the prospect of being subject to an internal affairs investigation. 70Dr Bodel, an orthopaedic surgeon, expressed the opinion that: Based on the history given, this gentleman was struggling with operational policing duties at the time that he resigned on 16 August 1991. He had in fact been off on sick report because of his injuries following the third accident in 1990. Other matters intervened including significant problems in relation to his marriage and he resigned, but he was struggling from the physical point of view in association with his injuries prior to that. 71Dr Bodel further stated: I am satisfied that he was incapacitated for operational policing duties on 16 August 1991 because of the recurring episodes of physical injury caused by the accidents as listed. 72Dr Bodel referred in his report to the appellant having been on long term sick leave after the third accident because of his ongoing complaints. This was not so. 73The opinions of Drs Conrad and Searle, proffered as they were in 1986, were at odds with the opinion of Dr Evans, an orthopaedic surgeon who had examined the appellant twice in 1984, twice in 1985 and again in September 1986. Dr Evans expressed the view that the prognosis regarding the appellant's neck and back was one of recovery. Dr Evans observed that on 2 September 1986 "the neck and lower back moved freely although with some discomfort." 74Dr Machart saw the appellant in May 2010. His opinion was that the appellant was not incapable of discharging his duties because of the lumbar spine, but rather because of a nervous breakdown. Dr Machart accepted that the appellant was suffering from discopathy of the lumbar spine, a condition that was evident from the time of the appellant's first injury. However, he was of the view the appellant was able to conduct his normal duties in the presence of the lumbar discopathy, which gradually worsened over time such that the appellant is now significantly disabled. 75Dr Maxwell, an orthopaedic and spinal surgeon, saw Mr Cook on 22 August 2011. He expressed the opinion that he did not consider it to be clear that the appellant's medical condition relating to his neck and back at the time of his resignation was causally related to an incapacity to perform full operational police duties. Dr Maxwell stated the appellant was able to perform his physical duties at the time of his resignation in August 1991. Dr Maxwell felt that when Mr Maxwell resigned "the biggest problem was emotional stress, anxiety and depression". 76Because the medical opinions differ about the appellant's incapability as at August 1991, resort to those opinions does not offer a clear-cut answer to whether the appellant satisfied the test under s 10B(2B) of the Police Regulation (Superannuation) Act as at 16 August 1991. However, I consider the balance tips in favour of a finding that the test was not satisfied when other factors are taken into consideration. Those factors are as follows: (1)If the back and neck injuries were of such a nature that they rendered the appellant incapable of discharging the duties he was assigned the question must be asked why he did not seek a medical discharge in August 1991 - an obvious choice available to him - rather than simply resign? No satisfactory answer was provided. (2)In the period between May 1990 when he was involved in the third accident and August 1991 when he resigned, the appellant had a total of eight days off work (two in May 1990 immediately following the accident and six in November 1990) for reasons that might be attributed to injuries to his back. When he was not absent the appellant was undertaking the work that had been assigned to him as a highway patrol officer. The days absent over a 15 months' period do not indicate such an acute condition that it prevented the appellant from permanently discharging his duties. (3)Prior to the third accident in May 1990 the appellant had not taken any days off for reasons that related to a back injury since December 1988, when he took one day off work due to his "back". One day off over a seventeen months period does not indicate a back condition so serious it rendered the appellant incapable of discharging his duties. (4)In the period between May 1991 and August 1991 the appellant was having domestic problems. Between 29 May and 16 August 1991 the appellant was certified unfit to work because of stress, insomnia and fatigue and not for any reason relating to a back injury. In May 1991 the appellant advised the Police Medical Officer he felt his police career was over and he feared he would be sacked following an internal affairs investigation. He mentioned to the Police Medical Officer that he wanted to resign to get his superannuation so he could pay his legal expenses. The appellant made no mention to the Police Medical Officer of any injury to his neck or back as the reason why he believed he needed to resign. Immediately prior to taking leave on 29 May 1991 the appellant was discharging the duties assigned to him as a highway patrol officer. (5)It may be inferred that the reason the appellant was unfit to work in the two and a half months prior to his resignation related to personal or domestic crises and fear of an internal affairs investigation. The appellant also needed money to pay legal expenses. (6)Following his resignation the appellant did not seek medical treatment regarding his back until 26 October 1995. He sought treatment for his back, right leg and right foot when "he simply got up and twisted to the right and had acute back pain." At no time prior to 1995 had the appellant complained of a problem with his right leg. Dr Patrick's opinion was that the 1995 injury was not a new injury, but an exacerbation of the earlier injuries caused by the accidents in which the appellant had been involved. However, it is noteworthy that if the appellant's back injury was so serious that in August 1991 it prevented him from carrying out his duties as a highway patrol officer, why did he not need to seek any medical treatment for the injury at all for another four years? 77The foregoing factors tell strongly against the appellant's claim. 78I have considered Mr Corcoran's evidence and the appellant's own evidence regarding the duties he undertook as a highway patrol officer. It was Mr Corcoran's evidence that although the appellant was on "full duties" he was primarily a radar operator or seatbelt observer. The appellant said his duties consisted of half radar operator and half highway patrol. 79Whether the appellant was on "full duties" or "unofficial" light duties, he was discharging the duties as assigned to him in his capacity as a highway patrol officer. The only thing put in issue was his capacity to apprehend fleeing offenders. The evidence in that respect was very thin. One example was given where an offender fled on foot and the appellant's partner gave chase. The appellant had returned to the police vehicle to assist in the chase, but the officers were unable to effect an arrest. Presumably, the appellant returned to the vehicle because his back impeded a chase on foot. However, it would seem to be an appropriate course of action to return to the police vehicle and use the vehicle to give chase while the appellant's partner was on foot. The evidence falls well short of establishing incapability as at 16 August 1991. 80The only other example was referred to in the appellant's affidavit and described earlier in this judgment. The appellant was attending a brawl, but because of pain in his back he was unable to continue wrestling with an offender and another officer had to take over the arrest because the appellant could not continue due to the pain he felt. One could not draw a conclusion from this one sketchily described, uncorroborated episode that it proved or materially added to the likelihood that on the balance of probabilities the appellant was incapable of discharging the duties of his office on 16 August 1991. 81It may be accepted that the appellant suffered back pain at the time he resigned. It may also be accepted that since he resigned his condition worsened and, as Dr Machart opined, "remains significantly disabled by the condition of the lumbar spine", which has had the effect of significantly curbing the appellant's ability to participate in his sports and hobbies. 82However, I am not satisfied that as a former member of the Police Force, the appellant was incapable of discharging the duties of the office in the Police Force in which he was employed at the time of his resignation, namely, highway patrol officer. Orders 83The Court makes the following orders: (1)The appeal by Geoffrey Cook against the respondent's decision to decline to provide Mr Cook with a certificate under s 10B(2B) of the Police Regulation (Superannuation) Act 1906 is dismissed. (2)The appellant shall pay the respondent's costs as agreed or assessed. ********** Amendments 11 September 2014 - "(2) Within seven days of the date of this judgment the appellant shall file and serve written submissions on costs. The respondent has a further seven days in which to reply. The question of costs will be determined on the papers"amended to now read"(2) The appellant shall pay the respondent's costs as agreed or assessed." Amended paragraphs: Coversheet /Decision 11 September 2014 - "(2) Within seven days of the date of this judgment the appellant shall file and serve written submissions on costs. The respondent has a further seven days in which to reply. The question of costs will be determined on the papers"amended to now read"(2) The appellant shall pay the respondent's costs as agreed or assessed." Amended paragraphs: 83 (2) 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: 11 September 2014