Calman v Commissioner of Pollice

[1998] HCATrans 409

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S77 of 1998

B e t w e e n -

RONALD JAMES CALMAN

Applicant

and

COMMISSIONER OF POLICE

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 NOVEMBER 1998, AT 2.00 PM

Copyright in the High Court of Australia

MR B.J. GROSS, QC:   May it please the Court, I appear for the applicant.  (instructed by Walter Madden Jenkins)

MR J.C. CAMPBELL, QC:   May it please the Court, I appear for the respondent.  (instructed by Legal Service, NSW Police Service)

GAUDRON J:   Mr Gross.

MR GROSS:   Your Honours, we contend the errors in the Court of Appeal fall into two categories:  firstly, in holding that there could be no compensable exacerbation of the underlying disease involving the officer being engaged in the actual execution of the duties of his office.

GAUDRON J:   Why was one looking for an exacerbation?

MR GROSS:   Your Honour, the second matter I was coming to – and maybe I should not have changed the order ‑ ‑ ‑

GAUDRON J:   No, no, not at all.

MR GROSS:    ‑ ‑ ‑was a disease should have been sufficient anyway because it had been found ‑ ‑ ‑

GAUDRON J:   It was work related.  Work was a contributing factor.

MR GROSS:   He was coping and not disabled at the time, and then along came the exacerbation, however one characterises it, which was enough to trigger a situation of incapacity and being off work.  All three judges made the error of requiring a work-related exacerbation on top of the work-related disease which was already found.  Your Honours, we submit that that was, on balance, perhaps in retrospect, the most fundamental error because it required ‑ ‑ ‑

McHUGH J:   It is hardly a special leave point, is it?

MR GROSS:   Your Honour, what is called for on that analysis is double compensability or, alternatively, requiring that if you have a disease which is work caused and where there is a finding of that, requiring that any absence from work thereafter, even though the man is temporarily functioning, must itself be related to a work caused subsequent event.  Now, in our submission, it would not matter if he had a bad time domestically which had caused him to decompensate ‑ ‑ ‑

GAUDRON J:   There is no holding to that effect though, is there?  This case seems not to have been conducted on that basis.

MR GROSS:   Your Honour, the case was conducted on both headings, that is that the disease was sufficient, and secondly, that the exacerbation was of the relevant work kind.  The disease point was the first point taken in the Court of Appeal, and the case has always been conducted on the basis that either there was the disease itself manifesting itself or it was the disease with a work-related exacerbation.

McHUGH J:   But you have to show, first of all, that there was some error of law on the part of the tribunal before you get off the ground, and then you have to convince us that there is something about the case that requires the grant of special leave.  I mean, most of the questions that are raised in your application are almost of a garden variety.  We do not sit here merely to correct errors.

MR GROSS:   Your Honours, can I go to what I suspect your Honour is getting at in talking about garden variety type errors.  You have a situation where the original GREAT tribunal and the Court of Appeal have characterised the particular work events as not falling within the relevant description but, your Honours, it is the reasoning which is necessarily inherent in that rejection which raises the general question of public importance.  Because what the court is requiring is an act of positive operational law enforcement step being taken which involves the police officer being the moving party.  If that is what is to be found in the Court of Appeal majority judgments, that itself sets a test which is not only too narrow, having regard to the way in which a policeman operates, both receiving information or waiting for activity or, on the other hand, taking active positive steps.  But it also creates the unwieldy situation that the officer is dropping in and out of coverage throughout his working day.  The obligation to serve and be available, and also to obey, is of course a continuing obligation while he is rostered on duty.

What the Court of Appeal has looked for is the definition within his working day of the relevant specific task as being a particular exercise of his general responsibilities as a police officer.  So when you go to Justice Stein at pages 76, 77, he holds that, the bottom of page 76:

the regulation comprehends that carrying out of some lawful task associated with his duties as a police officer.  Being informed of a decision to transfer the appellant to Sydney cannot be said to be an incident –

In other words, it is something that the applicant police officer must be doing as distinct from a decision made from someone else ‑ ‑ ‑

McHUGH J:   One would have thought that he was doing something by being there to receive the communication.

MR GROSS:   Yes, your Honour.  But, your Honours, the passage of Justice Stein is obviously brief but, at the bottom of page 76, “I agree with Powell JA”, so therefore one goes to Justice Powell’s reasoning, which one finds at pages 73 to 74.  At the bottom of page 73 his Honour, having referred to the authorities, says:

it seems to be generally accepted that those duties include the taking of all steps necessary for keeping the peace, for preventing crime or for protecting property from criminal injury and, as well, the detection of crime and the bringing of offenders to justice.

Of course we can see there that they are all positive, and sometimes forceful, activities.

Whether or not the duties of a police officer ought to be regarded as limited to, or as more extensive than, those to which I have just referred, the phrase “in the actual execution of the duty of his … office” would seem to comprehend the carrying out by a police officer of some lawful task connected with his duties as such police officer.

Then he goes on to say:

it could not be said that that was an incident which occurred in the actual execution by the Appellant of the duty of his office.

The relevant matter being the fact that he is being informed of the intended transfer while he is there in front of his superintendent.  It is a normal part of police work to receive information and also to obey and to exchange information with one’s superior and inferior officers. 

Now, his Honour has characterised that passive role – or the fact that someone else is in control of the relevant event – as taking the case outside the description of what his Honour comprehends and what his Honour plainly is comprehending is that list of operational tasks which are obviously part of a police officer’s duty, but where those duties can obviously include waiting in intervals between performing those tasks but also performing ancillary tasks ‑ ‑ ‑

McHUGH J:   The issues obviously go beyond this particular statute because there are criminal statutes about obstructing policemen in the actual execution of his duty.  It throws up a question here if there had been some third person in the room at the time who suddenly prevented your client from hearing what was said or punched your client, as to whether or not that would be an assault – your client would have been assaulted in the actual execution of his duty.

MR GROSS:   Your Honour, the analogy may throw up its own problems as to when the law should intervene but, your Honour, this is the test for compensability for police officers who have a complete working day, rather than the staccato working day when they are in and out of the relevant more positive activities.  And bearing in mind it is legislation which takes as part of its structure of compensability the criteria in the Workers Compensation Act “arising out of or in the course of the employment” which plainly contemplates continuity of coverage unless you are doing something which is particularly heinous or in the nature of misconduct that takes you outside what the employer expects.

So that your Honours can see that, as Justice Powell points out, there is that marriage between clause 98 of the Police Service Regulations and section 1(2) of the Police Regulation (Superannuation) Act but, in the end, we submit that it is a compensation statute, it is not a statute which is defining criminal offences by other persons interfering with a police officer.

GAUDRON J:   We think we might now be assisted by hearing from Mr Campbell.

MR GROSS:   We would also emphasise, if I may say, and I am sorry to interrupt, the other heading in relation to disease because that is an error which affects compensation entitlements in relation to all police officers who have ever developed a mental state but nevertheless are coping.

McHUGH J:   Do not come back for your hat.

GAUDRON J:   Yes, Mr Campbell.

MR CAMPBELL:   Your Honours, the basis on which this case was disposed of in the Court of Appeal was, first of all, that there was a simple failure to discharge a factual onus.  That is the first of the propositions ‑ ‑ ‑

GAUDRON J:   It is very hard to make that out of the judgments, Mr Campbell.  The judgments proceed on the basis that there was an event, it resulted in time off work, it was related to an underlying condition, it was work related, that it was not compensable because it was not in the actual course of duties.

MR CAMPBELL:   Yes.  There is no doubt that the basis on which the judgments proceeded ‑ ‑ ‑

GAUDRON J:   And if you seek to analyse it on the basis of failure to discharge an onus, then it seems to me that you really come very close to suggesting that the Court did not know what the task before it was.

McHUGH J:   I think it might be higher than that.  You might deal with this as well.  It is really an Edwards v Bairstow or Hayes v Federal Commissioner of Taxation point, that once you accept that this anxiety arose from the communication then, as a matter of law, you are bound to find that it occurred in the actual execution of his duty.  Supposing that he had received a letter while he was at his desk and he had a heart attack while he was reading the letter, surely that was in the actual execution of his duty, having regard to the connection of that phrase with the Workers Compensation Tribunal.

MR CAMPBELL:   The actual execution of his duty is not a test that is involved in the Workers Compensation Tribunal.

McHUGH J:   I know it is not.

MR CAMPBELL:   And here the source of the entitlement of the police officer to compensation is that he has to both be acting in the actual execution of his duty and also satisfy the test for compensability under the Workers Compensation Act.  That can probably most clearly be seen from the setting out of the source of the power in page 43 where there the familiar provisions of the Workers Compensation Act about entitlement to compensation are set out.  Then back at 40 one has the provision which is the true source of the entitlement to receive “hurt on duty” benefits for those police officers who have contributed to the police superannuation fund.  Under 98(2) one has to have:

absent from duty because of infirmity of body or mind…..

(a)  if the absence from duty is occasioned by infirmity arising from a wound or injury received in the actual execution of the duty of his or her office;

So that is a test which – and it is that test which is the one which is necessary to be applied in the present case.

McHUGH J:   But the judgments of the Court of Appeal in particular, and Justice Priestley, I think, thought it was implicit in the decision of the tribunal, seemed to suggest that there could be no actual execution of the duty unless one was doing something actively or positively, as opposed to just simply receiving something passively.

MR CAMPBELL:   That does seem to be the thrust of the view that was accepted.

McHUGH J:   Supposing you had a police officer on surveillance duty who was just sitting in a police car doing nothing except watching and he had a heart attack.  Why would that not be done in the actual execution of his duty?

MR CAMPBELL:   It is always a question of fact.  That probably would be because the duty of his or her office also looks at what is involved in not just being an employee but carrying out the office of a constable.  Of course, there are many things that police officers do which are merely administrative and which are not carrying out the duty of their particular office.

McHUGH J:   But in a disciplined service, attending when your superior officer requires you to attend to hear some communication, particularly as it relates to your employment, I would have thought was something done in the execution of your duty.

MR CAMPBELL:   It is an “either you see it or you do not” point, your Honour.  I do not know that I can elaborate on opposing that.

McHUGH J:   It seems to me it might be a special leave case.

MR CAMPBELL:   If that be so, I do not know that I can talk your Honours out of it.

GAUDRON J:   Thank you, Mr Campbell.

MR GROSS:   I do not intend to try either, your Honour.

GAUDRON J:   There will be a grant of special leave in this case.

The Court will now adjourn.

AT 2.17 PM THE MATTER WAS CONCLUDED