Evans v Transadelaide - [2004] SADC 194

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
EVANS v TRANSADELAIDE
Judgment of His Honour Judge Bright
23 December 2004
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
Workers Rehabilitation and Compensation Act 1986 - s54(1) - meaning of employer.
Workers Rehabilitation and Compensation Act 1986 s54(1); Workers Rehabilitation and Compensation (Claims and Registration) Regulations 1999 Schedule 6; Safety, Rehabilitation and Compensation Act (Cth) 1988; Police Act 1998, referred to.
Sutherland v Federal Airports Corporations (1998) 72 SASR 356, applied.
Attorney-General for New South Wales v Perpetual Trustee Company (Limited) (1955) 92 CLR 113; Attorney-General for New South Wales v Perpetual Trustee Company (Limited) (1952) 85 CLR 237 @ 252, considered.

EVANS v TRANSADELAIDE
[2004] SADC 194

This is a decision on a preliminary point involving the meaning of s54(1) of the Workers Rehabilitation and Compensation Act 1986 (the Act) which relevantly provides:
“ … no liability attaches to an employer in respect of a compensable disability arising from employment by that employer except –
(a) a liability under this Act … “.
In briefest terms, this provision ended an employee’s right to sue his employer at common law for damages for work accidents.
The facts giving rise to the question here have been agreed. They are:
“1The Plaintiff was appointed by the Commissioner of Police in March 1986 as a Constable. He has continued under that appointment since that date.
2The Commissioner of Police exercises his powers and functions under the Police Act through an entity known as the South Australia Police also known as ‘SAPol’.
3The Plaintiff’s wages and other remuneration have at all material times been paid by the SAPol.
4The Plaintiff receives his directions in his employment from SAPol as agent of the Commissioner of Police.
5The Plaintiff has claimed and received payments of workers compensation in relation to the injury that forms the subject of these proceedings. The payments have been made by SAPol.
6The Plaintiff asserts and the Defendant denies that the North Adelaide Railway Station property was at all material times occupied by TransAdelaide.”
The plaintiff claims to have been injured in the course of his employment. He further claims that this was caused by the unsafe state of property of which he claims the defendant was the occupier. The defendant pleads that, if that is so, the action is barred by s54(1). Is an action against the defendant an action against the plaintiff’s employer? In ordinary parlance, the defendant was not in any way involved in the employment of the plaintiff. None of the ordinary indicia of a master/servant relationship are present.
However, the argument is not as simple as that.
I set out the written outline of the defendant’s submissions.
“Defendant's Outline of Submissions on Preliminary Point
1.For the purpose of the preliminary point, the defendant accepts that the plaintiff sustained a compensable injury on 27^th January 2001 in the course of his employment as a member of South Australia Police.
2.The plaintiff pursues a claim in negligence against the defendant for injuries sustained by him on 27^th January 2001.
3.Section 54 of the Workers Rehabilitation & Compensation Act 1986 provides that except for a liability arising out of the use of a motor vehicle or a liability under that Act, no liability attaches to an employer in respect of a compensable disability arising from employment by that employer.
4.The defendant contends that the operation of Section 54 of the Workers Rehabilitation & Compensation Act bars the claim made by the plaintiff, because the defendant and South Australia Police are one and the same employer, namely the Crown or an instrumentality of the Crown.
Plaintiff's Employment
5.At all material times, the plaintiff was a member of South Australia Police following appointment by the Commissioner (Police Act, Sections 3, 20 and 21).
6.South Australia Police consists of the Commissioner, Deputy-Commissioner, Assistant Commissioners, and other officers and members appointed under Part 4 of the Police Act (Section 4).
7.The Commissioner is appointed by the Governor (Police Act, Section 12) subject to a contract between the Commissioner and the Premier (Police Act, Section 13).
8.The purpose of South Australia Police is set out in Section 5 of the Police Act.
9.The Commissioner is responsible for the control and management of South Australia Police, subject to the Police Act and any written directions of the Minister, except that no ministerial direction may be given in relation to appointment, transfer, remuneration, discipline or termination (Police Act, Sections 6 and 7).
10.A liability which would lie against a member of South Australia Police for acts or omissions in carrying out his or her duties, lies against the Crown (Police Act, Section 65).
11.The Commissioner must provide an annual report to the Minister to be laid before each House of Parliament (Police Act, Section 75, and Police Regulations, Regulation 73).
12.By notice gazetted on the 13th day of February 1997 the Commissioner of Police was declared pursuant to section 13 of the Public Sector Management Act to have the powers and functions of Chief Executive in relation to the Police Department.
13.The Crown Proceedings Act 1992 provides for proceedings to be brought by or against the Crown or an instrumentality or agency of the Crown under the name "The State of South Australia".
14.For the purpose of the Police Regulations 1999, “employee” means a member of South Australia Police, and “employee in the Department” includes a member of South Australia Police (Police Regulations 1999, Regulation 3).
15.The South Australia Police either forms part of the Crown or is an instrumentality of the Crown, and is carrying out a government purpose or activity.
16.As such, it is deemed to be registered as an exempt employer pursuant to Section 61 of the Workers Rehabilitation & Compensation Act 1986, and as an exempt employer administers workers compensation claims made against it by members of South Australia Police.
Defendant as Employer
17.The defendant is a body corporate and is capable of suing and being sued in its corporate name (TransAdelaide (Corporate Structure) Act 1998, Section 4) (hereinafter referred to as “TransAdelaide Act”).
18.The defendant is a statutory corporation to which the Public Corporations Act 1993 applies (TransAdelaide Act, Section 5).
19.The defendant is subject to control and direction by the Minister (TransAdelaide Act, Section 6).
20.The functions of the defendant are set out in Section 7 of the TransAdelaide Act.
21.The defendant is governed by a Board of Directors appointed by the Governor and nominated by the Minister (TransAdelaide Act, Section 10).
22.The Minister may recommend removal of a Director (TransAdelaide Act, Section 11).
23.The Board is to appoint a General Manager, the defendant may appoint staff, and staff are not public service employees (TransAdelaide Act, Section 15).
24.The defendant is an instrumentality of the Crown (Public Corporations Act, Sections 3, 5(3) and 6(1)).
Common Employer
25.The plaintiff is employed by the Crown or an agency or instrumentality of the Crown. The defendant is an instrumentality of the Crown.
26.The plaintiff's action is against his employer, namely the Crown or an agency or instrumentality of the Crown and is barred by s54 of the Workers Rehabilitation & Compensation Act 1986.
Authorities
27.The critical question in determining whether a body is an agency or instrumentality of the Crown is whether it is empowered to and does carry out a government purpose or activity.
The Corporation of City of Unley v. SA (1997) 68 SASR 511.
ETSA v. Linterns Ltd [1950] SASR 133.
28An instrumentality of the Crown is indistinguishable from the Crown itself. An instrumentality of the Crown and an agency of the Crown are entities whose function it is to carry on or carry out pursuant to some form of grant an activity which is properly to be regarded as an activity of the State.
Commercial Oil Refineries Pty Ltd v. State of South Australia (1974) 9 SASR 88.
29.To the extent to which Sutherland v. Federal Airports Corporations (1998) 72 SASR 356 may be seen as an authority adverse to the defendant's argument, it is readily distinguishable. In particular, it is dealing with different legislation and involved separate and distinct Commonwealth authorities.
30.Attorney-General for NSW v Perpetual Trustee Co Ltd (1955) 92 CLR 113 is authority for the proposition that a police officer is a servant of the Crown, but is not in a traditional master and servant relationship for the purpose of certain civil actions which might otherwise be available.”
The plaintiff asserts that a police officer is not an employee of the Crown. At common law a police officer has various obligations and powers, in the exercise of which he or she is not subject to control or direction other than that provided by statute or common law. A police officer cannot be directed to arrest or release a person from arrest contrary to that police officer’s statutory and common law duty.
On the other hand, police officers are subject to detailed daily direction by members of a whole chain of command above them as to hours and place of work, the general nature of the work and so on. They are paid on terms set out in awards in just the same way as others paid under other awards. Their entitlements to leave, overtime and sick pay are regulated. They are not free to wear what they choose. They are entitled to workers’ compensation if injured at work. In short, in most of the ways in which any employer relates to and controls an employee, they are similarly controlled.
In Attorney-General for New South Wales v Perpetual Trustee Company (Limited) (1955) 92 CLR 113 the Privy Council considered whether a police officer was a servant of the state entitling the state to bring an action in respect of the loss of his services against a tortfeasor who caused that loss.
Their Lordships referred to the duties and powers directly conferred on police officers in respect of which they were not subject to direction and concluded that a police officer was not a servant in respect of whom an action per quod servitium amisit could be maintained. They followed a decision in Australia of Griffiths C.J. in Enever v The King (1906) 3 CLR 969 concerning the liability of the state of Tasmania for a wrongful arrest by a police officer.
At p.129 of Attorney-General for New South Wales (supra) Viscount Simonds said:
“ … there is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve. The constable falls within the latter category. His authority is original not delegated and is exercised at his own discretion by virtue of his office: he is a ministerial officer exercising statutory rights independently of contract. The essential difference is recognized in the fact that his relationship to the Government is not in ordinary parlance described as that of servant and master.”
A matter not covered in the agreed facts or submissions is the character in which the plaintiff was acting at the time of his injury. It is pleaded that he was assisting in removing a person. I infer that he was not making an arrest himself. If he was, could that be something he was doing on his own original authority and not as an employee? This point may need to be addressed. The case proceeded on the basis that the plaintiff was acting in the course of employment – and that is the basis for receipt of compensation.
When Attorney-General for New South Wales (supra) was considered in the High Court (1952) 85 CLR 237 @ 252 Dixon J. wrote:
“But the question remains whether because a constable is entrusted by law with specific powers and given specific duties which he must execute as a matter of independent responsibility, the general relation between the Crown and a member of the police force is not that of master and servant. In my opinion this consequence does not follow. In most respects a member of the police force is subject to direction and control which is characteristic of the relation of master and servant. It does not matter that there is a chain of command. That is necessary in some degree in all organisations military and civil, public and private. It is only when in the course of his duties as a servant of the Crown he is confronted with a situation involving the liberty or rights of the subject that the law places upon him a personal responsibility of judgment and action.”
Counsel for the plaintiff referred me to an article by Joseph Carabetta in (2003) Melbourne University Law Review 1. He carefully surveys a number of cases and suggests adoption of the above passage of Dixon J.
In this case one is not seeking to define a status or relationship for all purposes. One is merely trying to ascertain whether, for the purposes of s54(1) of the Act, the Crown is the “employer”. A finding on that question may well be distinguishable when looking at, say, the vicarious liability of the Crown for the acts of a police officer, and whether those acts were within the scope of the employment.
I refer to paragraphs 5 to 16 of the defendant’s submission. I note that, in the context of a police officer, by statute the Crown is liable for acts or omissions of a police officer in the performance of his or her duties. Any perceived deficiency in the common law has been resolved. Insofar as the reason for the old doctrine was to insulate the Crown from liability, that immunity has been abandoned. The fact that police officers still have certain original (as opposed to delegated) powers does not persuade me that a police officer cannot at the same time be an employee for other purposes.
For the purposes of s54(1) I am satisfied that a police officer is an employee. It must be noted that the Act does not use the term “employees” much. It refers to “workers” who are defined as (relevantly) “person(s) by whom work is done under a contract of service (whether or not as an employee) … .” It appears that police officers work under contracts of service and it may be unnecessary to establish that they are also employees.
By the Police Act 1998, it is the Commissioner who appoints police officers and who is charged with their management and control. For the purposes of s54(1) the Commissioner was the “employer” of the plaintiff.
The next stage is whether the Commissioner is, or is an agency or instrumentality of the Crown. By s61 of the Act, the Crown or its agencies or instrumentalities may be registered as an exempt employer. Those agencies are referred to in Reg.10 of the Workers Rehabilitation and Compensation (Claims and Registration) Regulations1999 and listed in Schedule 6 to those Regulations. Neither the Commissioner nor South Australia Police is in that list. The list is of generally small discrete bodies – eg Minda Home, or the Booleroo Centre Hospital. The main departments of government are not mentioned. It is apparently assumed that they “are” the Crown, for the purposes of the Act.
It is not a fact specifically agreed in the Statement of Agreed Facts that the Commissioner (or South Australia Police) is an exempt employer. However, I understand that to be the case. If I am wrong, I will hear further argument. I understand it to be an exempt employer pursuant to s61 of the Act, not pursuant to s.60 (the section dealing with private employers).
Apart from the inference to be drawn from s61, I note the matters referred to at points 10 to 14 of the defendant’s submissions. Those matters suggest that, not merely for the purposes of the Act, but generally, the Commissioner (or South Australia Police) is the Crown or an instrumentality of the Crown. The whole function of the police force is a function of the government of the state. It is a function that suggests that at common law, the police force “is”, or is an instrumentality of the Crown.
I repeat that this judgment is not concerned to answer any general questions. It is concerned to identify the plaintiff’s employer for the purposes of the Act. At points 17 to 24 of its submissions the defendant’s submissions argue that it, too, “is” or is an instrumentality of the Crown.
It seems to me that the only residual argument is whether that is so for the purposes of the Act. I do not know whether it has been so treated under the Act by having exempt status. In any event, how it has been treated administratively cannot be conclusive of its true status. Having said that, I do not discern anything in the Act which would derogate from the status which the defendant enjoys apart from the Act. I conclude that the defendant is an instrumentality of the Crown, both by statute generally and for purposes of s54(1) of the Act.
The question remains whether the Crown is one and indivisible for the purposes of the Act (as distinct from more general purposes). One would have thought it was, but the case of Sutherland v Federal Airports Corporations (1998) 72 SASR 356 must be considered. The plaintiff was injured in the course of his employment by a Commonwealth authority, Australian Air Express, and purported to sue the defendant, also a Commonwealth authority. The Safety, Rehabilitation and Compensation Act1988 (Cth) permitted an employee so injured to “elect out” of the claim for compensation against his employer in order to sue a third party. The plaintiff did not elect out and received compensation. Then he sought to sue the defendant. It was argued that, in suing the defendant, he was suing his own employer and could not elect to do that.
The Full Court held that, since at common law, an injured employee could sue for damages, clear and unambiguous words were needed to abrogate that right. It held that the language of the Commonwealth act was not so unambiguously clear. It did not make it plain that an employee of one Commonwealth corporation could not elect to sue another, or in default of such election, could not sue.
I note that the decision related to two statutory corporations, it apparently being assumed that only one could be the plaintiff’s employer. It was assumed that the defendant was a third party.
In this case, the defendant meets that head on. It asserts that both the police and the defendant are, ultimately, the same employer. Unassisted by authority, I would have thought that correct. However, in the light of Sutherland (supra), it appears that the Crown in right of the Commonwealth is, for purposes of the Commonwealth act, divisible into separate entities, one of which is employer and the other a third party.
In this case, the employer is the Crown. By statutory definition, but perhaps, not for purposes of the Act, the defendant is an instrumentality of the Crown. It is as separate an entity as those considered in Sutherland (supra).
In no sense can it be thought that the defendant was in any line of authority enabling it to direct the plaintiff in the way an employer can. With the exception of police powers to maintain public order, it cannot be thought that police can direct the employees of the defendant as an employer could.

It is noted that a holding company may have a number of subsidiaries. The “ultimate” ownership and control of the holding company does not mean that employees of the subsidiaries are in common employment. That is not determinative of the question. It does point up an artificiality in the chain of command back to the ultimate employer contended for here.
In my view, Sutherland (supra) is not readily distinguishable from this case. I am bound by it. I conclude that, in this case, there is not a single “employer”, for the purposes of the Act, covering the employment of the plaintiff and the acts or defaults of the defendant. The plaintiff’s action is not barred by s54(1).