Commissioner of Police v Kennedy - [2007] NSWCA 328

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Commissioner of Police v. Kennedy [2007] NSWCA 328

HEARING DATE(S): 8 November 2007

JUDGMENT DATE:
26 November 2007

JUDGMENT OF: Hodgson JA at 1; Basten JA at 33; Hislop J at 57

DECISION: Appeal dismissed with costs.

CATCHWORDS: POLICE - Conditions of service - Application for gratuity under s.12D of the Police Regulation (Superannuation) Act 1906 - Decision by Commissioner whether "the injury to which the claim relates was caused by the member being hurt on duty" - Whether "the injury to which the claim relates" is the injury satisfying s.4 of the Workers Compensation Act 1987 or some further injury

LEGISLATION CITED: Police Regulation (Superannuation) Act 1906 (NSW) ss.1, 10B, 12C, 12D, 21.
Workers Compensation Act 1987 (NSW) ss.4, 9, 9A, 14, 26, 33, 60, 66, 74.

CASES CITED: Calman v. Commissioner of Police [1999] HCA 60, 73 ALJR 1609
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390
Kelly v The Queen (2004) 218 CLR 216

PARTIES: Commissioner of Police - appellant
Ian Kennedy

FILE NUMBER(S): CA 40069/07

COUNSEL: Mr. S. Campbell SC with Mr. J. Hallion for the appellant
Mr. T. Ower for the respondent

SOLICITORS: Henry Davis York, Sydney for appellant
Harris Wheeler, Newcastle for respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): RJ462/05

LOWER COURT JUDICIAL OFFICER: Truss DCJ

LOWER COURT DATE OF DECISION: 27 October 2006

CA 40069/07
RJ 462/05

HODGSON JA
BASTEN JA
HISLOP J
Monday 26 November 2007

COMMISSIONER OF POLICE V. KENNEDY

Judgment

1 HODGSON JA: On 27 October 2006, Truss DCJ gave her decision in an application brought by the respondent pursuant to s.21(1)(b) of the Police Regulation (Superannuation) Act 1906 (Superannuation Act) to have a decision made by the appellant (Commissioner) set aside and replaced. Her Honour made orders setting aside the decision and determining that the injuries to which the respondent’s application for a gratuity related, were caused by his being hurt on duty. She ordered that the Commissioner pay the respondent’s costs.

2 The Commissioner appeals from those orders.

FACTUAL BACKGROUND

3 The following is the factual background as found by the primary judge and not contested on this appeal.

4 The respondent joined the Police Service in 1986 and was at all relevant times stationed in Ballina.

5 On 31 March 1997 he attended an accident on the Pacific Highway near Ballina. While walking on the highway near the accident, he was struck on the knee by a highway patrol vehicle, was thrown onto the bonnet and through the air for 3-5 metres, and landed on the ground on his hands and knees. He felt pain in his neck, shoulders and arms.

6 He was off work until returning to restricted duties on 30 June 1997; and gradually returned to full duties by 3 October 1997. From then until payment of sick pay ceased in May 2002, he had a lot of time off for his neck. He made a number of successful applications for his sick pay to be treated as hurt on duty.

7 On 10 October 2000, there was a power blackout, and in the process of attempting to start the station generator the respondent felt a tearing sensation in his neck and felt pain and tingling. He went off work and has not returned to work.

8 Under cover of a letter dated 23 March 2005, the respondent’s solicitor applied for a gratuity pursuant to s.12D of the Superannuation Act. The letter stated:

I act on behalf of Mr Ian Kennedy with respect to the above application.

My client was struck by a motor vehicle whilst on duty on 31 March 1997. He suffered injuries to his neck and shoulders and has experienced pain down both arms. He also suffers with headaches.

An application for gratuity is made under the abovenamed section and I enclose a copy of Dr Plowman's report dated 2 December 2003 in support of that application.

9 Dr. Plowman’s report dated 2 December 2003 enclosed with this letter referred to both the incident on 31 March 1997 and the incident in October 2000; and in a supplementary note of the same day also enclosed with the solicitor’s letter, Dr. Plowman provided the following assessments:

· Neck – 20% permanent impairment of the neck.

· Upper back – 2% permanent impairment of the back.

· Arms – 5% permanent loss of efficient use of each of his arms at or above and including below the elbow.

10 In a letter dated 1 June 2005 to the Police Superannuation Advisory Committee, the Commissioner’s Delegate stated:

In terms of s12D(4)(a) of the Police Regulation (Superannuation) Act, 1906 (as amended), I have decided that Senior Constable Kennedy's injuries to his neck, back and referred pain to both arms to which his application dated 23 March 2005 refers was not caused by the member being hurt on duty.

In terms of s12E, the Service has not been informed of the member seeking any further damages in relation to the injuries. It is suggested that contact be made directly with the member to confirm same.

STATUTORY PROVISIONS

11 The relevant provisions of the Superannuation Act are the definitions of “hurt on duty” and “STC” in s.1(2), s.10B(1) and (3), s.12C, s.12D, and ss.21(1)-(6). Those provisions, as in force at the time of the District Court hearing in October 2006, were as follows:

hurt on duty , in relation to a member of the police force, means injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987, entitle the member to compensation under that Act.

STC means the SAS Trustee Corporation continued under the Superannuation Administration Act 1996.

10B Medical examination of disabled member and determination of whether hurt on duty
(1) An annual superannuation allowance shall not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind of the member at the time of the certification of discharging the duties of the member’s office.
…

(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.

12C Determination as to whether death resulted from being hurt on duty
(1) If a member of the police force dies, the Commissioner of Police is to decide whether or not the member’s death was caused by the member having been hurt on duty and is to notify STC of the decision.
(2) At the request of STC, the Commissioner of Police is to decide whether or not the death of a former member of the police force was caused by the former member having been hurt on duty while a member of the police force.
(3) The Commissioner of Police is to give STC written notification of each decision made by the Commissioner under this section.
(4) On being notified of a decision of the Commissioner under this section, STC:
(a) is to give written notification of the decision to each person who, in the opinion of STC, would be benefited by a decision under this Act that the member or former member had been hurt on duty, and
(b) is to do so whether or not the decision of the Commissioner was that the member or former member had been hurt on duty.

12D Gratuities to members hurt on duty in respect of loss of limbs, medical expenses etc
(1) STC may pay to a member of the police force who is hurt on duty or to a former member of the police force who was hurt on duty when he or she was a member of the police force a gratuity of such amount as STC determines, not exceeding the amount that, in the opinion of STC, would have been payable to the member or former member under Divisions 3, 4 and 5 of Part 3 of the Workers Compensation Act 1987 if the member were, or the former member had been, a worker for the purposes of that Act.
(2) STC may pay a gratuity to a member of the police force under this section notwithstanding that the member is not discharged from the police force as a result of being hurt on duty.
(3) STC shall not grant a gratuity under this section to a member or former member of the police force unless:
(a) an annual superannuation allowance is payable to the member or former member under section 10 in respect of an infirmity of body or mind arising out of the same injury to which the claim for the gratuity relates, or
(b) where an annual superannuation allowance is not so payable, the injury to which the claim for the gratuity relates is determined, pursuant to subsection (4) or on appeal, to have been 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.
(4) Where a member or former member of the police force claims a gratuity under this section (otherwise than in respect of an injury referred to in subsection (3) (a)), the Commissioner of Police must:
(a) decide whether or not the injury to which the claim 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, and
(b) give written notice of the decision to STC and to the claimant.

21 Determination by District Court

12 This was the state of the legislation following some minor amendments that had been made with effect from 7 July 2005, but it is common ground that these amendments made no difference to the issues in this case.

13 The relevant provisions of the Workers Compensation Act 1987 are s.4, s.9(1), s.9A(1), s.14, s.26, s.33, s.60(1), s.66 and s.74(1). Those provisions, as they were in force prior to amendments made in 2001, were as follows:

4 Definition of “injury”

injury:

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.

9 Liability of employers for injuries received by workers—general
(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.
…

9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
…

14 Conduct of worker etc
(1) Compensation is payable in respect of any injury resulting in the death or serious and permanent disablement of a worker, notwithstanding that the worker was, at the time when the injury was received:
(a) acting in contravention of any statutory or other regulation applicable to the worker’s employment, or of any orders given by or on behalf of the employer, or
(b) acting without instructions from the worker’s employer,
if the act was done by the worker for the purposes of and in connection with the employer’s trade or business.
(2) If it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement.
(3) Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury.

26 Death of worker leaving partial dependants
If death results from an injury and the worker does not leave any dependants wholly dependent upon the worker for support, but leaves dependants in part so dependent, the compensation payable by the employer under this Act shall be:
(a) if the employer so agrees - the amount that would have been payable under section 25 if those dependants had been wholly dependent on the worker,
(b) if agreement is reached for the payment of an amount less than the amount provided by paragraph (a) and the amount agreed on is approved by the Commission as reasonable and proportionate to the injury to those dependants - the amount so approved, or
(c) in default of agreement as to the amount to be paid or in default of approval by the Commission for payment of an agreed amount under paragraph (b) - such amount (not exceeding the amount provided by paragraph (a)) as is determined by the Commission to be reasonable and proportionate to the injury to those dependants.

33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.

60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any occupational rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
…

66 Compensation for permanent injuries
(1) A worker who has suffered the loss of a thing mentioned in the Table to this Division as the result of an injury is entitled to receive from the worker's employer by way of compensation for the loss, in addition to any other compensation under this Act, the amount equal to the percentage of $100,000 set out opposite to that loss in that Table.
(2) A worker who has suffered more than one of the losses mentioned in the Table to this Division as a result of the same injury is not entitled to receive as compensation under this section more than $121,000 in respect of those losses.
(3) If an amount mentioned in this section at any time after the commencement of this Act:
(a) is adjusted by the operation of Division 6, or
(b) is adjusted by an amendment of this section,
the compensation payable under this section is to be calculated by reference to the requisite percentage of the amount in force at the date of injury .

74 Damage to artificial limbs etc

14 Sections 60, 66 and 74 are respectively the main operative provisions of Divisions 3, 4 and 5 of Part 3 of the Workers Compensation Act, referred to in s.12D(1) of the Superannuation Act. It is to be noted that the Table referred to in s.66 has a heading “Compensation for permanent injuries” and a subsidiary heading “Nature of injury”, followed by the identification of particular permanent losses.

15 The 2001 amendments made important changes, notably by replacing the previous s.66 with the following:

66 Entitlement to compensation for permanent impairment

D x $1,250

$12,500 + [(D – 10) x $1,500]

$27,500 + [D – 20) x $2,500]

D

16 Transitional provisions made it clear that this new s.66 did not apply “in respect of an injury received before the commencement of the amendments”, with some limited exceptions.

DECISION OF PRIMARY JUDGE

17 The primary judge noted that a considerable amount of medical evidence was tendered, but that the main thrust of the Commissioner’s case was that, whatever the nature of the respondent’s injury in March 1997, he had recovered and was not suffering any permanent impairments or losses. However, the primary judge found that this was not an issue she was required to determine, because “the injury to which the application relates” in s.12D(4)(a) of the Superannuation Act is to be given the same meaning as “injury” as defined in s.4 of the Workers Compensation Act, and did not refer to permanent impairment or losses resulting from such an injury.

18 The primary judge found that on 31 March 1997 and on 20 October 2000 the respondent suffered injury to his neck with referred symptoms to his upper back while a serving police officer, and she made the determination set out above.

GROUNDS OF APPEAL

19 The Commissioner relies on the following grounds of appeal:

injured

injury

injured

injury

SUBMISSIONS

20 Mr. Campbell SC for the Commissioner submitted that, in relation to a claim for a gratuity in an amount not exceeding that which would be payable under Division 4 of the Workers Compensation Act, the “injury to which the claim for the gratuity relates” in s.12D(4)(a) of the Superannuation Act was the permanent injury identified in the Table referred to in s.66 of the Workers Compensation Act.

21 He submitted that, since the expression “hurt on duty” itself required that there be an injury within the meaning of s.4 of the Workers Compensation Act, the reference in s.12D(4)(a) to an injury “caused by” the member being hurt on duty must be to some further injury that may have been caused by the s.4 injury. At the very least, it must include such a further injury.

22 Mr. Campbell submitted that, even in the Workers Compensation Act, “injury” is not limited to the s.4 definition. In addition to its use in the Table mentioned in s.66 to encompass the “loss of a thing” referred to in that section, the word is also used in s.26 to mean financial loss caused to a dependant.

23 In relation to claims concerning amounts that would be payable under Division 3 of the Workers Compensation Act, Mr. Campbell submitted that the “injury to which the claim relates” must be the medical expenses themselves or the condition that was the immediate occasion for incurring the expenses; so that s.12D(4)(a) requires a determination whether the expenses or the condition was caused by the s.4 injury which was involved in the member being hurt on duty. Mr. Campbell also pointed out that, in relation to claims under Division 5 of the Workers Compensation Act, there did not even have to be a s.4 injury, merely an accident.

24 Mr. Campbell submitted that the matter could not be resolved by reference to the assumed respective functions of the Commissioner and STC, with the former being concerned with matters requiring operational knowledge and expertise and the latter being concerned with matters requiring medical knowledge and expertise. The question of whether a s.4 injury has been suffered may require medical expertise, for example when the alleged injury is a disease or aggravation of a disease. Further, in cases under s.10B of the Superannuation Act, when STC has identified a “specified infirmity” under s.10B(1), medical expertise could be required to determine whether that infirmity was caused by a s.4 injury under s.10B(3)(a).

25 Mr. Campbell submitted that the contrary view would give a very limited role to the Commissioner; although he did accept that a determination of whether a member had been hurt on duty does involve not merely a determination of whether a s.4 injury has occurred, but also whether the entitlement to compensation was defeated by s.9A or s.14 of the Workers Compensation Act, and possibly also whether some total or partial incapacity resulted: see Calman v. Commissioner of Police [1999] HCA 60, 73 ALJR 1609 at [38]. Mr. Campbell accepted also that, in the case of an injury on a journey or during a recess, the requirements of s.10 or s.11 of the Workers Compensation Act would have to be satisfied.

DECISION

26 In my opinion the Superannuation Act does disclose an intention that, in a broad sense, medical issues be addressed by STC and operational issues by the Commissioner. However, for reasons given by Mr. Campbell, there can be no clear demarcation: the Commissioner must have to determine medical issues in at least the areas identified by Mr. Campbell.

27 In my opinion the expression “the injury to which the claim relates” in s.12D(4)(a) should have the same meaning in relation to claims for Division 4 payments as it has in relation to claims for Division 3 and Division 5 payments.

28 In relation to claims for Division 3 payments, the Workers Compensation Act refers to no injury apart from the s.4 injury; and in my opinion “injury” in s.12D(4)(a) cannot reasonably be understood as referring either to the medical expenses themselves or to some condition, apart from the s.4 injury, that was the immediate occasion for the relevant medical treatment. Although “injury” is used in s.26 of the Workers Compensation Act to refer to financial loss, in my opinion it would a strained and artificial understanding of the word “injury” in s.12D(4)(a) to take it as referring either to medical expenses or to some condition apart from the s.4 injury. Also, it would mean that every time there was a claim for further medical expenses, the claim would require both a determination by the Commissioner under s.12D(4)(a) and a determination under s.12D(1) by STC; and in my opinion it is unlikely in the extreme that this was intended.

29 In relation to claims for Division 5 payments, the Workers Compensation Act does not require that there be any s.4 injury. However, the definition of “hurt on duty” in the Superannuation Act does require that the member be injured, so it would seem that Division 5 claims can be made by members only if there has been a s.4 injury. In my opinion, in relation to Division 5 claims, “injury” in s.12D(4)(a) cannot reasonably be understood as referring to the physical damage to an item of the kind referred to in s.74 of the Workers Compensation Act, and must be taken as referring to the s.4 injury.

30 In relation to claims for Division 4 payments, in my opinion the same applies: “injury” in s.12D(4)(a) refers to the s.4 injury. I accept there is some grammatical awkwardness in this, in that the definition of “hurt on duty” applies only if there has been a s.4 injury; so that, on this construction, what is determined is whether there is an injury caused by the member being injured, where the injury is not something separate from that already suggested by the expression “being injured”. However, in my opinion this consideration is insufficient to outweigh the other considerations I have discussed.

31 On the question of what has to be determined by the Commissioner under s.12D(4)(a), I accept that it does include issues under s.9A and s.14 of the Workers Compensation Act, and where applicable, s.10 and s.11. I would not however understand what was said in Calman at [38] as requiring that the Commissioner also determine whether some total or partial incapacity has resulted: s.9 of the Workers Compensation Act asserts entitlement to compensation without reference to incapacity, and medical expenses are payable under s.60 without proof of incapacity.

ORDER

32 For those reasons, in my opinion, the primary judge did not make the errors of law alleged in the grounds of appeal, and the following order should be made: appeal dismissed with costs.

33 BASTEN JA: I agree with Hodgson JA that the appeal in this matter should be dismissed with costs, for the reasons given by his Honour and for the further reasons set out below.

34 Mr Kennedy was a police officer who suffered personal injury in the course of his work, on two occasions. He suffered an injury to his neck resulting in pain in the neck, shoulders and upper arms. On 31 March 1997 he was struck by a motor vehicle. The injuries then suffered appear to have been aggravated whilst starting an electric generator at the police station on 10 October 2000. On 2 December 2003 he consulted an orthopaedic medico-legal consultant, Dr R.L. Plowman. Dr Plowman documented, in a report of the same date, Mr Kennedy’s account of continuing pain in the neck, shoulders and arms, which had affected him since March 1997 and which gave rise, in Dr Plowman’s view, to him being “permanently incapacitated for normal policing duties”: Report, p 3.

35 Mr Kennedy originally made a “claim for hurt on duty benefits” in late 1998 or early 1999. The claim appears to have been accepted on 21 May 2002, at which stage Mr Kennedy was advised that consideration would also be given pursuant to s 12D of the Police Regulation (Superannuation) Act 1906 (NSW) (“the Superannuation Act”) to the payment of “reasonable medical and associated costs which are directly related to this approval”. It appears that he was also considered to be entitled to benefits in relation to absence from duty during the period 13 March 2002 to 17 May 2002, the date of injury being identified as 13 March 1997.

36 The present application was made on 23 March 2005, by Mr Kennedy’s solicitors. It identified the date of injury as 31 March 1997. It stated that it was “[a]n application for gratuity” made under s 12D of the Superannuation Act. It enclosed a copy of Dr Plowman’s report of 2 December 2003. Despite the cryptic nature of that application, it was treated as an application for a payment, which if made under the Workers Compensation Act 1987 (NSW) (“the Workers Compensation Act”) would be compensation for non-economic loss payable to a worker “who receives an injury that results in permanent impairment”: see s 66(1) in Part 3, Div 4 of the Workers Compensation Act.

37 Payment of gratuities under the Superannuation Act are made by the SAS Trustee Corporation, referred to in the Superannuation Act as “STC”. Gratuities payable under s 12D do not include death benefits or compensation by way of weekly income payments, which are covered by Divisions 1 and 2 respectively in Part 3 of the Workers Compensation Act. Gratuities may, however, extend to payments under Division 3 (medical and other expenses), Division 4 (non-economic loss) and Division 5 (property damage).

38 Pursuant to s 12D(3), the STC was obliged not to grant a gratuity unless one of two conditions was fulfilled, the relevant one being that “the injury to which the claim for the gratuity relates is determined … to have been caused by the member being hurt on duty”: s 12D(3)(b). The relevant determination was required to be made by the Commissioner of Police: s 12D(4)(a). (It was assumed for the purposes of the appeal that the relevant dates for the application of the Superannuation Act commenced with the date of the application, namely 23 March 2005 and extended to the date of the determination by the District Court, namely 27 October 2006. It is convenient to rely on the legislation as in force on 23 March 2005, it being agreed that subsequent amendments do not affect the present issue.)

39 On 1 June 2005, a delegate of the Commissioner advised in writing of a determination that Mr Kennedy’s “injuries to neck, back and referred pain to both arms to which his application dated 23 March 2005 refers was not caused by the member being hurt on duty”. No reasons were given and the decision might seem to be inconsistent with the acceptance in May 2002 that Mr Kennedy was unfit for work following not only the incident in March 1997, but also that in October 2000.

40 Pursuant to s 21 of the Superannuation Act, Mr Kennedy had a right to apply to the District Court “for a determination in relation to that decision”: s 21(1). Because the District Court Judge making the determination in effect stood in the shoes of the Commissioner and was required to consider the application afresh, the reasons for the rejection by the Commissioner were relevant only to the extent that they might define the issues in dispute. Critically for present purposes, the Commissioner contended in the District Court that the decision should be confirmed because Mr Kennedy had not sustained any permanent impairment or loss of a kind sufficient to give rise to an entitlement under s 66 of the Workers Compensation Act. Truss DCJ held that the question whether Mr Kennedy had sustained a permanent impairment was one for consideration by the STC. Her Honour was satisfied that Mr Kennedy had suffered injury to his neck with referred symptoms into his arms and upper back when serving as a police officer: at [35]. She therefore determined that the injuries to which his application for a gratuity related were caused by his being hurt on duty: at [36].

41 Section 21, conferring jurisdiction on the District Court was inserted into the Superannuation Act by the Police Regulation (Superannuation and Appeals) Amendment Act 1979 (NSW), Schedule 1 (20) (“the 1979 Amendment Act”). In its original form, an application was to be made to the Workers Compensation Commission. In due course the jurisdiction was transferred to the Compensation Court and subsequently, by operation of the Compensation Court Repeal Act 2002 (NSW), the jurisdiction was transferred to the District Court. It now forms part of the “residual jurisdiction” of the District Court under Division 8A of the District Court Act 1973 (NSW). An appeal from the Court in its residual jurisdiction is confined to circumstances where a party is aggrieved “in point of law or on a question as to the admission or rejection of evidence”: District Court Act, s 142N. The point of law identified for present purposes is whether the District Court was correct in making a determination without considering whether Mr Kennedy suffered from a permanent impairment. The present appeal thus turns upon the apparently arid question as to the precise boundary between the functions conferred on the STC and those conferred on the Commissioner under s 12D. The question is arid in the sense that a determination of either is open to reconsideration by the District Court.

42 Broadly speaking, claims for compensation turn upon two issues. The first is whether a worker has suffered an injury and, if so, the nature and extent of the injury. The second question is whether the injury arose out of or in the course of employment or otherwise satisfied the conditions identified in ss 4, 9A (employment a substantial contributing factor), 10 (journey claims), and 11 (recess claims) of the Workers Compensation Act, subject to s 14 (exclusion of injury solely attributable to serious and wilful misconduct and self-inflicted injuries). In a crude dichotomy, the relevant questions can thus be identified as those involving quantification of compensation payable and those involving causal connection with employment. Because s 12D(3) and (4) refer to causation, the apparent intention is that the Commissioner should determine questions involving causal connection with employment and the STC questions relating to the nature and extent of compensation payable. On that basis, her Honour was correct in concluding that questions of permanent impairment were for the STC. Thus the Commissioner was required to determine whether Mr Kennedy had received an injury arising out of his work as a member of the police force, whereas the STC would determine whether the injury had resulted in permanent impairment for the purposes of s 66(1) of the Workers Compensation Act.

43 The reference in s 12D to whether “the injury … was caused by the member being hurt on duty” gives rise to some grammatical infelicity if one imports the definition of “hurt on duty” from s 1(2) of the Superannuation Act into s 12D, because the provision would then ask whether “the injury … was caused by the member being injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987, entitle the member to compensation under that Act”.

44 A number of comments may be made about this approach. First, it is said to follow the approach of McHugh J in Kelly v The Queen (2004) 218 CLR 216 at [103] that “once it is clear that the definition applies, the better – I think the only proper – course is to read the words of the definition into the substantive enactment”. That may be so, but as his Honour continued, it is then necessary to construe the substantive enactment “in its context and bearing in mind its purpose and the mischief that it was designed to overcome”. No doubt, as suggested by Pearce and Geddes, it is an excellent test of good drafting to read a definition into an operative provision to see if it fits comfortably in the text: Statutory Interpretation in Australia (6th ed, LexisNexis, 2006) at [6.55]. However, if the definition as enacted does not fit comfortably into the text, the exercise of construction will need to address any logical or grammatical infelicities that arise.

45 In the present case the definition does not fit comfortably because it results in the concept of an injury caused by a person being injured. However, when the legislative history and statutory purposes are taken into account, there is no reason to suppose that Parliament intended there to be two separate referents for the concept of “injury” and “being injured”. Rather, they should be understood as referring to the same condition. Thus, at [84] in Kelly, McHugh J cited with approval a passage from the judgment of Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397. In dealing with an amendment providing for increases in the amount of compensation payable under the Workers Compensation Act 1926 (NSW) Dixon CJ noted:

“The very indefinite present tense of the word ‘receives’ is used, somewhat vaguely perhaps, on the footing that the adult worker is to be the recipient of compensation and the draftsman finds it convenient so to describe him when it becomes necessary to speak of him in order to make the point that the injury must be before and the compensation after the amending Act. It may be illogical to speak of a man as a recipient of a sum of money in prescribing the calculation on the result of which his receiving the money is contingent, but the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.”

46 The same may be said of s 12D, after the definition of “hurt on duty” has been read into the language of either sub-ss (3)(b) or (4)(a).

47 Secondly, the approach proposed by the Commissioner fits ill with the legislative history and the statutory purpose of the 1979 Amendment Act. As explained in Calman v Commissioner of Police (1999) 73 ALJR 1609, police officers in New South Wales have historically stood outside the operation of workers compensation legislation. That has led to amendments to the Superannuation Act from time to time to ensure that police officers are no worse off than workers generally. The 1979 Amendment Act was one example of that process and was described in Calman in the following terms:

“[15] Thus, in 1979 the Amendment Act effected a significant change in the availability of entitlements for members of the police force injured, broadly, during the course of their employment. … Specifically, the limited circumstances referred to in s 10 of the Superannuation Act were expanded to those circumstances provided for by the definition of ‘hurt on duty’ … . Thereby the existing structure was overlaid by the workers’ compensation coverage to which the Minister had referred [in his second reading speech].”

48 The purpose of s 12D was thus to provide access for police officers to benefits which might be obtained under Divisions 3, 4 and 5 of Part 3 of the Workers Compensation Act. Adoption of the phrase “hurt on duty” was a means to that end. As a defined phrase, the definition removed a lengthy circumlocution from the operative provisions. It was not intended to qualify the concept of “injury” as contained in s 4 of the Workers Compensation Act. Thus, the primary entitlement to compensation under the Workers Compensation Act arises under s 9 by reference to the circumstances of a worker “who has received an injury”. In picking up that entitlement, the definition of “hurt on duty” has substituted the word “injured” for “received an injury” however, nothing turns on that change in expression, any more than on the double use of the concept of injury in s 12D(3) and (4).

49 Thirdly, the definition of “hurt on duty” does no more than pick up the concept of an injury which triggers an entitlement to compensation. It does not import into the definition an assessment of the nature or extent of the injury or of the compensation payable in respect of it.

50 The Commissioner also relied upon a passage in Calman as suggesting that the determination of the Commissioner in the present case must extend beyond the relationship between the injury and employment as a police officer. The particular passage was in the following terms:

Workers Compensation Act

51 The language quoted by the Court in this passage is taken from s 1(2) of the Superannuation Act. The reference to incapacity is in turn a reference to s 33 of the Workers Compensation Act, under which the entitlement in question arose in that case. The passage does not, however, assist the Commissioner in the present context. First, the provisions in question in Calman did not involve any bifurcation of functions between the STC and the Commissioner. Accordingly, any comments about the issues to be determined by the Commissioner or the Tribunal in that context were not directed to any such division of duties. Secondly, the operative provisions of the Workers Compensation Act may, as in the cases of ss 33 and 66, distinguish between the injury and the incapacity or impairment which results from it. In its ordinary meaning, s 12D(4)(a), requires the Commissioner to determine whether the injury arose out of the officer’s work, treated as employment for the purposes of compensation. It does not in terms refer to the consequences of the injury and thus does not require the Commissioner to determine whether the injury resulted in incapacity or impairment, or neither.

52 There is a further reason to be derived from the structure of s 12D which supports this conclusion. Thus, as already noted, the STC may only grant a gratuity if one of two conditions set out in sub-s (3) is satisfied, the conditions being:

“(a) an annual superannuation allowance is payable to the member or former member under section 10, or

53 Section 10 provides for an allowance to be paid to a “disabled member of the police force”, being one “who is discharged after being certified, pursuant to section 10B(1), to be incapable, from a specified infirmity of body or mind, of discharging the duties of the member’s office” subject to the further condition of “that infirmity being determined, pursuant to section 10B(3) … to have been caused by the member being hurt on duty”. Whether a member is incapable of discharging his or her duties is determined by the STC so certifying, pursuant to s 10B. Thus, s 10B(1) provides:

“(1) An annual superannuation allowance shall not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of discharging the duties of the member’s office.”

54 Significantly, sub-s 10B(3) then provides:

(a) decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty … and the date or dates on which the member or former member was hurt on duty ….”

55 It is thus apparent that a gratuity under s 12D may be granted either where paragraph (a) is satisfied and an allowance is payable to the member under s 10 or, where paragraph (b) of sub-s 12D(3) is satisfied. It is clear that, for the purposes of the first alternative in paragraph (a), any question of incapacity, resulting in discharge, is to be determined by the STC whereas the relationship of the infirmity to the member’s work is to be determined by the Commissioner. It would be curious if the function to be performed by the Commissioner were of a materially different kind, where the second alternative under paragraph (b) is invoked. As already noted, the language is consistent with the function being the same in each case. The interrelationship of ss 10, 10B and 12D thus support the conclusion that the function of the Commissioner is the same in each case and is limited to determining the causal connection between the infirmity or injury and the officer’s employment.

56 Accordingly, there was no error in the approach adopted by Truss DCJ and the appeal should be dismissed with costs.

57 HISLOP J: I agree with Hodgson JA. I also agree with the further reasons given by Basten JA.

**********

Actions

Download as PDF Download as Word Document

Citations

Commissioner of Police v Kennedy [2007] NSWCA 328

Most Recent Citation

Mulpha Australia Limited v Central Sydney Planning Committee [2018] NSWLEC 179

Cases Citing This Decision

22

State Super SAS Trustee Corporation Ltd v Perrin [2016] NSWCA 232

Learmont v Commissioner of Police [2016] NSWCA 137

Alqudsi v Commonwealth of Australia; Alqudsi v The Queen [2015] NSWCA 351

Cases Cited

3

Statutory Material Cited

2

Calman v Commissioner of Police [1999] HCA 60

Kelly v The Queen [2004] HCA 12

CITATION:	Commissioner of Police v. Kennedy [2007] NSWCA 328
HEARING DATE(S):	8 November 2007
JUDGMENT DATE:	26 November 2007
JUDGMENT OF:	Hodgson JA at 1; Basten JA at 33; Hislop J at 57
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	POLICE - Conditions of service - Application for gratuity under s.12D of the Police Regulation (Superannuation) Act 1906 - Decision by Commissioner whether "the injury to which the claim relates was caused by the member being hurt on duty" - Whether "the injury to which the claim relates" is the injury satisfying s.4 of the Workers Compensation Act 1987 or some further injury
LEGISLATION CITED:	Police Regulation (Superannuation) Act 1906 (NSW) ss.1, 10B, 12C, 12D, 21. Workers Compensation Act 1987 (NSW) ss.4, 9, 9A, 14, 26, 33, 60, 66, 74.
CASES CITED:	Calman v. Commissioner of Police [1999] HCA 60, 73 ALJR 1609 Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 Kelly v The Queen (2004) 218 CLR 216
PARTIES:	Commissioner of Police - appellant Ian Kennedy
FILE NUMBER(S):	CA 40069/07
COUNSEL:	Mr. S. Campbell SC with Mr. J. Hallion for the appellant Mr. T. Ower for the respondent
SOLICITORS:	Henry Davis York, Sydney for appellant Harris Wheeler, Newcastle for respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	RJ462/05
LOWER COURT JUDICIAL OFFICER:	Truss DCJ
LOWER COURT DATE OF DECISION:	27 October 2006