NSW Police Force v Faccin
[2015] NSWWCCPD 8
•9 February 2015
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | NSW Police Force v Faccin [2015] NSWWCCPD 8 | ||
| APPELLANT: | NSW Police Force | ||
| RESPONDENT: | Daniel Faccin | ||
| INSURER: | Employers Mutual Ltd NSW Treasury Managed Fund | ||
| FILE NUMBER: | A1-8283/13 | ||
| ARBITRATOR: | Ms E Beilby | ||
| DATE OF ARBITRATOR’S DECISION: | 3 October 2014 | ||
| DATE OF APPEAL DECISION: | 9 February 2015 | ||
| SUBJECT MATTER OF DECISION: | Section 4 of the Workers Compensation Act 1987; injury arising in the course of employment; injury received during an interval between periods of employment; section 9A of the Workers Compensation Act 1987; employment a substantial contributing factor to injury | ||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Hicksons | |
| Respondent: | Carroll & O’Dea Solicitors | ||
| ORDERS MADE ON APPEAL: | 1. Paragraphs 1, 3, 4, and 5 of the Certificate of Determination dated 3 October 2014 are, for the reasons stated on this appeal, confirmed. 2. Paragraph 2 of the Certificate of Determination dated 3 October 2014 is revoked. In substitution the following findings are recorded: “2. The injury received on 27 April 2013 was received by the applicant in the course of his employment and it was one to which employment was a substantial contributing factor.” 3. The appellant employer is to pay the respondent worker’s costs of the appeal. | ||
INTRODUCTION
This appeal concerns the question as to whether an injury received by Mr Daniel Faccin, a police constable, during a game of rugby league in a competition conducted by the NSW Police Rugby League Association (the Association), is compensable.
Mr Faccin received a significant right knee injury when tackled during the match which took place on 24 April 2013 at Coogee Oval. Mr Faccin lodged an Incident Notification Form with the NSW Police Force (the appellant) on 27 April 2013. The appellant’s insurer, Employers Mutual Ltd NSW Treasury Managed Fund, declined liability in respect of workers compensation payments on 2 May 2013. Subsequently, on 29 May 2013, provisional liability was accepted by the insurer. Following further consideration of the claim the insurer declined liability. A notice concerning that decision was issued and served upon Mr Faccin pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 17 July 2013.
The dispute concerning Mr Faccin’s entitlement to compensation benefits was the subject of an Application to Resolve a Dispute filed with the Commission on 15 October 2013.
The matter came before Arbitrator Elizabeth Beilby on 30 June 2014. At the request of the parties the Arbitrator addressed the matter of the appellant’s liability, that is the questions as to whether Mr Faccin’s injury arose out of or in the course of his employment (s 4 of the Workers Compensation Act 1987 (the 1987 Act)) and whether Mr Faccin’s employment was a substantial contributing factor to the injury (s 9A of the 1987 Act).
Having heard submissions on that date, the Arbitrator reserved her determination of the dispute. On 7 August 2014, the Arbitrator determined those issues, stating her reasons extempore during the course of a telephone conference attended by the parties. Each question was determined in Mr Faccin’s favour. Agreement was subsequently reached between the parties concerning the quantum of Mr Faccin’s entitlement. A Certificate of Determination was issued on 3 October 2014 in which the following matters are recorded:
“The determination of the Commission in this matter is as follows:
1.The applicant suffered an injury to his right knee on 27 April 2013.
2.The applicant has satisfied ss 4 and 9A of [the 1987 Act].
3.The respondent is to pay weekly compensation from 17 July 2013 to 9 December 2013 in the sum of $140.00 per week.
4.The respondent is to pay reasonable s 60 expenses on production of accounts, receipts and /or a valid Medicare Notice of Charge.
5.The respondent is to pay the applicants costs as agreed or assessed. Such costs are certified as complex for both parties. It is determined that a 25 per cent uplift is appropriate in the circumstances.
Notations:
a.Paragraphs 3 and 4 above were agreed to by the parties following a decision on liability. This is not an admission by the respondent that they agree with the decision on liability.”
Given the fact that Mr Faccin is a police officer, the Arbitrator’s Determination and Orders were made having regard to the provisions of the 1987 Act and the 1998 Act in their terms as existed before the operation of the Workers Compensation Legislation Amendment Act 2012: cl 25 of Pt 19H of Sch 6 to the 1987 Act. This appeal is thus governed by the Acts in their unamended terms.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
FRESH EVIDENCE
Mr Faccin, in his Notice of Opposition to this appeal, seeks leave to tender fresh or additional evidence pursuant to s 352(6) of the 1998 Act which provides:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The additional evidence which is the subject of this application is a copy of the table of contents of the NSW Police Handbook (version as at 13 February 2013) and a copy of page 598 of that Handbook. The table of contents includes reference to “Sporting and Social Functions…598”. The next item in the table is “State Protection Group (SPG)…600”. The copy of page 598 includes reference to “Formation/Administration of Sporting and Social Clubs”; “Affiliation with the NSW Police Council of Sport”, and “Books and Accounts”.
Copies of the table of contents and page 598 of the Handbook are included in Mr Faccin’s Notice of Opposition. That additional material is outlined by Mr Faccin and submissions have been provided, as required by the terms of Practice Direction No 6, in support of the admission of the evidence on this appeal.
The appellant, who was permitted to file and serve Submissions in Reply to Mr Faccin’s Notice of Opposition to the appeal, has presented no argument in opposition to the application made pursuant to s 352(6).
In support of the admission of the additional material, Mr Faccin draws attention to the fact that reference was made by the appellant’s insurer to the Handbook in its s 74 Notice, which was in evidence before the Arbitrator (page 37 of the Reply), as follows:
“Police sport
Local area commanders and their equivalent have been delegated the authority to grant on duty status using the following guidelines.
For the:
ANZ Police Games
Australian Police and Emergency Services Games
International Law Enforcement Games
A maximum three days on duty status is allowable in any calendar year. One of the days (or part thereof) is to be used for the opening ceremony and the other days are limited to those days or parts thereof when the officer is involved in competition.
Additionally, local area commanders (or equivalent) may grant a further day of on duty status to permit police to compete in multi disciplined or single disciplined sporting event at national or international level (eg: Australian Police Ski Championships), including national team selections and competitions.
Local area commander (equivalent)
Your approval must be in writing, be given before the event and identify the day, days or parts thereof for which on duty status has been granted. File a copy at your command.
An officer granted on duty status (who has used leave to attend the sporting event) is to be recredited leave at the rate of 7.6 hours per on duty status day.”
Mr Faccin draws attention to the appellant’s submission put on this appeal (at [11.11]) which is as follows:
“With respect to the NSW police handbook making no mention of the Association, and Superintendent Wright having no knowledge, and giving no permission for the respondent worker to play…”
Among the factual matters argued by the appellant as being relevant is the following (at [11.9(d)]):
“(d) the lack of any sanction/endorsement in the Police Handbook of participation in the Association.”
The reason the additional material was not tendered in evidence before the Arbitrator, as explained in submissions, was that at that time, Mr Faccin’s solicitors:
“did not have possession of the Handbook or any reason to doubt the correctness of the assertion contained in the s 74 Notice of 17 July 2013…which stated:
‘It [the Police Handbook] does not, however allow for participation in the NSW Police Rugby League Association. We consider this a separate competition and note that participation is entirely voluntary.’”
The Handbook came into Mr Faccin’s solicitor’s possession in the course of unrelated proceedings subsequent to the Arbitrator’s determination of the present matter.
It is put (at [7] of Submissions) that the relevance of the additional material is that:
“While [the Handbook] does not refer in terms to the NSW Police Rugby League Association, it does purport to control and regulate the participation of the serving officers in competitions such as that within which the applicant was engaged at the time of his injury, in particular, the handbook directs attention to participation in events under the umbrella of the NSW Police Council of Sport. The NSW Police Rugby League is a financially affiliated member of the Police Council of Sport. This is referred to in the statement of Sergeant Rodney Sheraton dated 1 May 2014 ([Mr Faccin’s] Late Documents 8 May 2014).”
Whilst Mr Faccin has not, in my view, established that the documents were not available to him and could not reasonably be obtained before the hearing conducted by the Arbitrator, I am of the opinion that to admit the document in evidence on this appeal would prevent the possibility of the Commission being misled by the state of the evidence and submissions concerning the Handbook. The material comprises the appellant’s own document. Having regard to the absence of any argument raised in opposition to the tender of the material, I infer that no prejudice to the appellant will arise by reason of its admission into evidence. I am also of the view that failure to grant leave to have the material in evidence on appeal would cause substantial injustice.
In the circumstances leave is granted to Mr Faccin pursuant to s 352(6) to tender the documents identified (at [11] above) as additional evidence on this appeal.
ISSUES IN DISPUTE
The appellant relies upon five separate grounds of appeal. The first three of those grounds suggest particular errors on the part of the Arbitrator in concluding that Mr Faccin had received an injury within the meaning of s 4 of the 1987 Act. The fourth and fifth grounds suggest error on her part in concluding that Mr Faccin’s employment was a substantial contributing factor to the subject injury in terms of s 9A of the 1987 Act.
FACTUAL BACKGROUND
There was no dispute concerning the occurrence of injury received during the match on 24 April 2013. The knee injury is described by Mr Faccin’s treating orthopaedic surgeon, Dr George Gayagay, in a report dated 4 June 2013, as being “…a full ACL tear. In addition, he has other injuries consistent with the trauma that resulted in his ACL tear: lateral femoral condyle chondral defect, MCL partial tear and possible meniscal injuries”. Mr Faccin underwent surgical treatment at the hands of Dr Gayagay on 12 June 2013 which involved “arthroscopic ACL reconstruction, hamstring, single bundle”.
The relevant facts are largely uncontroversial. Mr Faccin at relevant times was assigned to general duties at Blacktown Police Station following his attestation as a police constable in December 2010. The Commander of Blacktown Local Area Command at relevant times was Superintendent Mark Wright. Superintendent Wright first became aware of Mr Faccin’s injury following lodgement of an Incident Notification Form. Superintendent Wright had no knowledge of Mr Faccin’s participation in the rugby league match prior to the occurrence of injury. Mr Faccin was not rostered for duty on the day of the injury. Superintendent Wright stated in evidence that Mr Faccin was not required to participate in the football match.
On 11 March 2013, Mr Faccin and other serving members of the police force were sent an email by Mr Stuart Chang of St Mary’s Police Station (detectives). Those emails were addressed to the recipients’ police force email addresses. That email invited the officers to participate in the 2013 NSW Police Rugby League Competition. Mr Faccin replied to that email making enquiries in relation to his participation. On 9 April 2013, Mr Faccin received an email in which he was “offered the opportunity to participate”. By reason of conflicting personal schedules concerning child care, Mr Faccin declined that invitation.
A few weeks later Mr Faccin heard from work colleagues that the team “had recently been struggling due to a shortage of players”. Mr Faccin wished to participate and sent a text message to Mr Chang on 23 April 2013 inquiring if any additional players for the next game, being 24 April 2013, were needed. In reply, Mr Chang sent a text message advising that the side was short on players and that they would appreciate Mr Faccin’s participation.
Mr Faccin was not rostered for work on Wednesday, 24 April 2013 and had made alternative arrangements for babysitting. He forwarded a text message to Mr Chang advising that he would be able to participate in the game.
Mr Faccin travelled to Coogee Oval and played in, as described by him in his statement dated 14 April 2014, a “sanctioned rugby league match playing for the Penrith NSW Police Region team against Cronulla/Sutherland Police Region team”. That was the first occasion that Mr Faccin had played and he had not earlier participated in any training sessions. Upon his arrival at the oval he was given shorts and socks and a team jersey, which had the police insignia on it. Mr Faccin stated that: “as far as I knew it was only serving police officers that were allowed to play in these games”. Mr Faccin returned to full duties following the injury on 12 December 2013 and has suffered no ongoing income loss since his return.
The subject football match was conducted by the Association. In his evidence, Rodney Sheraton, Vice President of the Association, stated that the Association was formed in 1970 and has conducted rugby league competitions for police officers since that time. Mr Sheraton outlined the various competitions which include the Sydney-based competition and country championships. Matches between city and country teams which are selected by the Association play a “one off game…each year”. The Association and other organisations within Australia take turns at hosting a “Tri Series” from which an Australian Police Rugby League team is selected to play against other police nations and participate in the Police World Cup. The Australian Police Team competed in the 2013 Police World Cup which was conducted in England.
The Association is, as stated by Mr Sheraton, incorporated and has a constitution. It is financially affiliated with the Police Council of Sport which is described by Mr Sheraton as being “a body which oversights [sic] police sport in NSW”. The Police Commissioner, Andrew Scipione, appointed Deputy Commissioner David Hudson as Chairman of the Police Council of Sport. The Association is the largest single police sporting body attached to the Police Council of Sport. The Association’s patron is Assistant Commissioner Allan Clarke. Mr Clarke sometimes attends competition games and, as stated by Mr Sheraton, has been a regular attendee and supporter of NSW Police Rugby League representative games.
The Association is affiliated with the NSW Rugby League and it pays an affiliation fee each year. The League provides referees for all the Association’s matches and competitions for which the Association is charged a fee. Mr Sheraton further stated:
“On occasions different Local Area Commands hold Police Charity Rugby League days against other Local Area Commands. Some of these days are held annually which include the Mark Dooley Charity day played at Campbelltown and the Bill Crews Charity day held at Bankstown. These days are held to raise money for Police Legacy and the families of the officers who have been killed on duty. The President of the NSW Police Rugby League has the authority from the Police Council of Sport to sanction these matches as Police Rugby League games on request from the organisers.”
In his statement, Mr Sheraton makes reference to a document which is not in evidence, described as the Police Handbook for Organised Police Sport. That document is quoted by Mr Sheraton as including the following:
“Should an officer sustain an injury whilst participating in a sporting event sanctioned by NSW PF, whether on approved leave or not, the injury is likely to be compensable. The investigation for workers compensation benefits will be conducted by the contracted insurer, under [the 1987 Act] and [the 1998 Act].”
A printed copy of the Association’s website is in evidence. Assistant Commissioner Clarke has provided the Association with a welcome address which is published on that website. That address includes the following:
“As Patron of the NSW Police Rugby League I urge you to support the Association and its outstanding work in promoting and administering rugby league within our police ranks.”
The website includes a summary of the history of the Association which includes the following:
“A working executive was elected comprising Chairman, Pat Gibb; Vice Chair Chairmen, Jim Armstrong and Bill Tout; Secretary, Barry Collins; Treasurer, George Patterson; Committee, Jim Simmonds, Gordon Talbot, Jim Bowen and Jim Brazil. In 1969 Pat Gibb retired and Jim Armstrong replaced him. Many meetings were held and a constitution and set of rules drawn up that were acceptable to all competing teams. This information was forwarded to the then Commissioner Allen in late 1969 and he subsequently sanctioned the conducting of a League competition. The NSW Police Department recognised that, any injuries occasioned to participant’s playing in the competition as ‘Hurt on Duty’, as they perceived that Police Officers competing in such a competition would increase their fitness as a result of the associated training and playing, in such a competition.”
The website also includes a statement by the Association’s president, Mr Stephen McDonald, which includes the following:
“All the building blocks of participating in team sport such as: making strong characters, fitness, team work, discipline, learning how to accept defeat and enjoying the elation of winning are positive factors encouraged in this great organisation. Probationary constables through to high ranking commissioned officers involve themselves and support [the Association].”
In a statement made by Mr Faccin on 28 August 2013, he said:
“It is my understanding that this rugby league match on [24 April 2013] was a sanctioned match organised by the Police Football Association [sic] and affiliated with the Police Council of Sport.”
The evidence of Ms Jeannine Armstrong, the Executive Officer at Blacktown Local Area Command, found in a statement made by her on 9 May 2014, has attached a copy of Mr Faccin’s roster document for the relevant period. As stated by Ms Armstrong “[Mr Faccin] was not rostered for duty but was on a rest day”. Ms Armstrong, following inquiries, was unable to locate any document “in the nature of a request by Mr Faccin to change his roster so that he might play in the football match on 24 April 2013”. Ms Armstrong further stated that an examination of Mr Faccin’s personnel file contains no record of a request by him for approval to participate in the football match on 24 April 2013 or at any earlier time.
I note that the evidence extracted from the Police Handbook which is relied upon by each party is described above in the course of consideration concerning Mr Faccin’s application to introduce fresh evidence.
THE ARBITRATOR’S DECISION
The Arbitrator identified the issues in dispute as being whether Mr Faccin had established that he received an injury within the meaning of s 4 of the 1987 Act and, secondly, as to whether the provisions of s 9A of the 1987 Act had been met, that is that it had been established that employment was a substantial contributing factor to the injury.
The Arbitrator proceeded to address the “background of the claim”. It was stated by the Arbitrator that “the NSW Police Rugby League is an organisation within the NSW Police Force”. The exchange of emails between Mr Faccin and Mr Chang were noted. The Arbitrator made findings that “[Mr Faccin] was not rostered on duty this day, he was on a rest day and no approval had been sought to participate in the football match”.
The Arbitrator noted a number of, as stated by her, “uncontroversial factual matters”. Those matters included that participants in the football competition paid a registration fee to play. The Arbitrator noted that Mr Faccin “believed that he would be covered by his employer if he was injured whilst participating in the match”. It was further noted that the results of the football game were published in the Police Service Weekly. The fact that Assistant Commissioner Clarke was the patron of the Association was noted. The Arbitrator also recorded that “some sporting events such as the Police Olympics and other representative games were sanctioned properly in the Police Handbook”.
The Arbitrator concluded her “background” summary as follows:
“The New South Wales Police Force Handbook [sic, the Police Handbook for Organised Police Sport] says that should an officer sustain an injury by participating in a sporting event sanctioned by the Police whether on approved leave or not the injury was likely to be compensable. There was some factual concessions made by the respondent of some significant moment. It was agreed by the respondent that there was no doubt that the applicant was a beneficiary of moral support and encouragement by the police. Secondly, participants were encouraged to not only play rugby league but to keep active and participate. And, thirdly, rugby league promoted health and camaraderie within the police service.”
The Arbitrator proceeded to consider the question as to whether Mr Faccin had established receipt of injury in terms of s 4. Reference was made in the course of her reasons to the decision of Neilson CCJ in Clark v Commissioner of Police (2004) 1 DDCR 193 (Clark). The Arbitrator observed that the facts in Clark were “very similar” to the present matter. It was stated that “[t]his decision provides authority where there is sufficient evidence that the benefit for the employer such as fitness and morale, the building of organisational strength through team building camaraderie then a [sic] section 4 is satisfied”.
The Arbitrator appears to have made a finding that members of the police force playing rugby league would “meet other members of the service and interact with them favourably”. The transcript of the Arbitrator’s reasons contains a gap at this point noted as “not transcribable”, however it is reasonable to conclude that the Arbitrator proceeded to find that the contact between the police officers would build camaraderie. The Arbitrator then stated:
“Based on this decision [Clark] it seems to me that s 4 is clearly satisfied. There is no doubt, similar to the case of Clark, that [Mr Faccin] was playing rugby league and the employer derived a benefit such as fitness and morale whilst playing it. Further, team-building camaraderies [sic] were also benefits the employer clearly had.”
The Arbitrator acknowledged an argument advanced by the appellant founded upon the undisputed fact that Mr Faccin was not on duty at the relevant time. Reference was again made by the Arbitrator to the decision in Clark and it was noted that in that matter “the officer was not technically on duty”. The Arbitrator noted that the court in Clark rejected the argument advanced concerning the fact of not being on duty, his Honour finding that there was “a false dichotomy” in that argument. The appellant’s argument was not accepted. The Arbitrator proceeded to conclude that she was satisfied that “the applicant has satisfied the first threshold argument, that is, s 4 of [the 1987 Act]”.
The Arbitrator proceeded to consider the question as to whether the requirements of s 9A had been met. Reference was made to the decision in Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 (Badawi). The matters raised by the court in Badawi concerning the proper construction of s 9A and the manner of its application to facts as found were summarised by the Arbitrator. Following that summary the Arbitrator addressed the “factors” that might require consideration, noting the provisions of s 9A(2) and its application to the facts. A finding was then made that Mr Faccin “has satisfied s 9A”. The Arbitrator observed that such conclusion was reached having regard to the fact that she was “comforted” by the findings of the Court of Appeal in Da Ros vQantas Airways Ltd [2010] NSWCA 89 (Da Ros). The Arbitrator concluded her determination by stating that she had found that Mr Faccin “has satisfied the threshold requirements of s 4 and s 9A of [the 1987 Act]”.
SUBMISSIONS, DISCUSSION AND FINDINGS
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
As earlier noted, the first three grounds relied upon suggest error on the part of the Arbitrator in finding that the subject injury was one within the meaning of s 4 of the 1987 Act which provides (in its unamended form):
“In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(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.”
Section 4 of the 1987 Act
Ground one
Ground one states:
“The appellant submits the Arbitrator made an error of fact and law in finding that the circumstances of the present matter were analogous to those requiring consideration and determination by Neilson J in Clark v Commissioner of Police (2004) 1 DDCR 193 and that the respondent worker therefore satisfied s 4 of the Act.”
Submissions in support of this ground draw attention to the manner of the Arbitrator’s reliance upon the decision in Clark. The appellant at [9.1] quotes directly from the transcript of the Arbitrator’s reasons. It is clear that the transcript is, to an extent, misleading. The Arbitrator is there (at T5.27–T5.32) recorded as quoting Neilson CCJ in Clark. In fact the “quoted” passage is not an extract from his Honour’s judgment, but was plainly intended by the Arbitrator to have been a paraphrase or summary of what was said (at [25] of the judgment) concerning the “not on duty” argument. Such is clear upon an examination of the wording adopted by his Honour.
The appellant asserts error by the Arbitrator “… both in reference to the factual circumstances in Clark”, and in her conclusion that the “same argument was run”.
The appellant correctly notes that a factual distinction exists between Clark, which involved a football injury received by a police officer, and the evidence of the present case. In Clark, his Honour accepted the following matters of fact (at [21]):
“Here, [Mr Clark] was given time off work without financial penalty to train or participate in matches if he was rostered on for the [sic] duty at the time of training or competition.”
The only evidence concerning Mr Faccin’s work status at the relevant time is that he was not on duty and his superior officer had no knowledge of his participation in the match. Thus there is a distinction of considerable importance between Clark and the present case, and I consider that the Arbitrator has erred in concluding that Neilson CCJ in Clark had considered “the same argument” as was raised in the present matter concerning the relevance of being “not on duty”.
It was accepted by Mr Stockley, Mr Faccin’s counsel, that “… [Mr Faccin] wasn’t rostered on, he wasn’t on duty” (at T13.28).
The “false dichotomy” identified by Neilson CCJ arose by reason of the fact in that case that, regardless of whether the injured officer was or was not on duty, his participation in the match was encouraged by the employer and the employer derived benefit from the participation. In my view the payment received by the officer in Clark, of which there is no evidence in the present case, may be seen as constituting a significant part of the encouragement given by the employer. The question as to whether this error has relevantly affected the Arbitrator’s decision is addressed below.
Ground two
Ground two states:
“The appellant submits the Arbitrator made an error of fact in finding that the NSW Police Rugby League Association was an organisation ‘within’ NSW Police.”
It is argued that the Arbitrator’s failure to refer to the Australian Securities and Investments Commission (ASIC) extract in evidence, which established that the Association “is a separate registered association [to NSW Police]” (submissions [10.2]), constitutes relevant error.
Whilst it is correct, as argued, that the ASIC evidence was not referred to by the Arbitrator in the course of her reasons, I am not persuaded that her description of the Association as being “within the NSW Police” demonstrates relevant error. Her use of the word “within” does not constitute a finding that the Association formed part of the NSW Police Force. It is to be noted that the Police Act 1990 prescribes the composition of the NSW Police Force. Further it cannot be said that the Arbitrator intended to convey a finding that the activities of the Association constituted a “mission or function” of the NSW Police Force which are regulated by s 6 of that Act.
It is reasonably clear that in stating that the Association was “within the NSW Police” the Arbitrator intended to convey no more than that the Association was comprised of members of the NSW Police Force. It appears that, as argued on behalf of Mr Faccin, she has adopted that term “within” from the Association’s website under the heading “goals” where it is stated:
“[The Association] is an organisation within the NSW Police Force.”
The Arbitrator’s ultimate conclusion that, as stated by her, “section 4 is satisfied” is not affected by her statement concerning the Association being “within the NSW Police Force”. This ground is rejected.
Ground three
Ground three states:
“The appellant submits the Arbitrator made an error of law in the application of s 4 of [the 1987 Act] and by failing to consider relevant evidence in her analysis of s 4 of the Act.”
The appellant makes reference in the course of submissions to the decisions of the High Court in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 (Hatzimanolis) and Comcare v PVYW [2013] HCA 41; 250 CLR 246 (PVYW) and it is put that the Arbitrator “should have been guided by the principle in Hatzimanolis which has recently been ‘endorsed’ by the High Court in [PVYW].” Emphasis is placed upon the statement by the plurality found in PVYW at [28]:
“In the ordinary situation, where work is performed at a permanent place of work, an injury occurring after the working day would not normally be regarded as occurring in the course of employment. An injury occurring between two discrete periods of actual work is less likely to be seen as in the course of employment. On the other hand, an injury occurring in a lunch break might be understood as occurring in an interval in an overall period of work.”
It is argued that the Arbitrator had erred in law “in finding that s 4 is satisfied by the existence of benefits to the employer such as fitness and morale, or the building of organisational strength.” Such matters, it is put, are relevant to, but not determinative of matters raised by the application of s 4. The decision in Haider v J P Morgan Holdings Aust Ltd t/as J P Morgan Operations Australia Ltd [2007] NSWCA 158; 4 DDCR 634 (Haider) is relied upon as authority for the proposition that such matters are “not by themselves sufficient for injury to be considered ‘in the course of’ employment”.
It is further argued that the Arbitrator had erred in failing to take into account relevant evidence concerning the connection between the activity (football) and Mr Faccin’s employment to enable a determination as to whether the injury was received in the course of employment. Those matters said to have not been considered appear between [11.9] and [11.11] of submissions and are discussed below. I am of the view, as explained below, that the Arbitrator was in error in her approach to the question of “injury”.
Consideration of submissions concerning s 4
I have earlier found that the Arbitrator has erred concerning her approach to the application of s 4. It is thus necessary to examine the evidence to determine whether those errors have relevantly affected her ultimate determination concerning the matters addressed by that section.
Whilst the appellant has not raised the specific nature of the Arbitrator’s determination in the course of its argument, it must be noted at the outset that she has not expressly stated in her reasons that the injury arose out of the employment or whether it arose in the course of employment. Her reasons merely state, as earlier noted, that s 4 is “satisfied”.
The question before the Arbitrator required, as argued by the appellant, consideration of the proper construction and application of s 4 to the facts as found, as is authoritatively addressed in Hatzimanolis and PVYW. Whilst the Arbitrator made reference to the decision in Clark in which Neilson CCJ considered the decision of Hatzimanolis, there is absent from the Arbitrator’s reasoning any clear statement of relevant principle which may be derived from those High Court decisions. Indeed there is no mention of those authorities. This omission is to be considered together with her erroneous treatment of both the facts and argument in Clark as being “very similar” to the present case.
The first necessary step to enable a determination as to whether the Arbitrator’s conclusion as to “injury” was correct or otherwise is to characterise the timeframe concerning the occurrence of the subject injury. It occurred at a time when Mr Faccin was not actually performing his usual duties. He was not rostered for work, thus it may be seen that the knee injury occurred during an interval between two discrete periods of employment. In that respect the facts are distinguishable from those in Hatzimanolis (a so-called “camp” case) in which the injury occurred during an interval or interlude within an overall period of work. An injury during an interval of the latter character “is more readily seen as occurring in the course of employment” than one in an interval between two discrete periods of work (Hatzimanolis, per the plurality, at 483).
The question to be asked in the present case, having regard to Hatzimanolis and subsequent authority, is whether the interval during which Mr Faccin played in the match is to be accepted as occurring in the course of his employment. That question requires consideration as to whether the appellant had expressly or impliedly “authorised, encouraged or permitted” Mr Faccin to spend that interval “at a particular place or in a particular way”.
Whilst the plurality in Hatzimanolis observed that “it would be an unacceptable extension of the course of employment to hold that an employee was within the course of employment whenever the employer had authorised, encouraged or permitted the employee to spend time during an interval between periods of actual work at a particular place or in a particular way”, an examination of the case law and general principle by their Honours was followed by the following statement (at 484 omitting footnotes):
“Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen’.”
The focus of the Arbitrator’s reasoning fell upon a consideration of whether there was evidence of a benefit to the employer flowing from Mr Faccin’s participation in the match. That approach reflects matters elaborated in earlier authority, that is decisions which predate Hatzimanolis. The only mention of the factors considered in Hatzimanolis and subsequent authorities, which concerned permission or encouragement by the employer, is found where the Arbitrator summarises the decision of Neilson CCJ’s decision in Clark.
Notwithstanding the deficiencies in the reasoning of the Arbitrator, I am of the view that the errors have not relevantly affected the determination of the dispute concerning injury, given my conclusion that the evidence supports a finding that the injury arose in the course of employment.
I have reached that conclusion following a consideration of the matters raised in argument by the appellant. It is correct that the appellant did not provide financial assistance with respect to participation in the match and that Mr Faccin was off duty at the time of the injury. Mr Faccin had not sought permission or approval from his superior as is emphasised by the appellant. Notwithstanding those matters, Mr Faccin came to play in the match by reason of an invitation given by a fellow police officer who represented the Association which was affiliated with the Police Sports Council. Mr Faccin qualified for that invitation by reason of the fact that he was himself a serving police officer in the relevant geographical region with which the team was associated and identified.
It is open to inference that Mr Faccin’s participation in the match was relevantly encouraged by the appellant given: the appellant’s acceptance of the existence of the Association and its activities; its permission to use the police insignia; the participation of senior officers in the Association including the appointment of such an officer as patron and, significantly in my view, the Association is affiliated with the Police Council of Sport. That last factor concerning the Police Council of Sport, of which the present Chairman is Deputy Commissioner Hudson, suggests, and I infer, that the activities of the Association would, to a degree, be the subject of supervision by the Council.
I have taken into account a number of other matters in reaching my conclusion including the uncontradicted evidence that the match was “sanctioned” by the appellant. Whilst the evidence does not elaborate the concept of “sanction”, the appellant chose not to adduce any evidence in contradiction of the assertion that it had in some manner approved of the conduct of such matches. I have also taken into account the fresh evidence which demonstrates that the NSW Police Handbook addresses subjects including “Sporting and Social Clubs” as outlined at [11] above. I consider that that evidence demonstrates an acknowledgment by the appellant of the existence and activities of organisations such as the Association. I infer from the evidence as a whole that the activities of the Association, including the conduct of rugby league matches, and Mr Faccin’s participation in such a match, were both permitted and encouraged by the appellant. In such circumstances, I conclude that Mr Faccin’s injury was one received in the course of his employment and I so find on this appeal. That conclusion has been reached following a consideration of the decision in Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324 (Hills) which has been relied upon by the appellant in argument. That decision makes clear that the subjective beliefs of a worker are not determinative of the question as to whether an interval is in the course of employment. I have had no regard in reaching my conclusion to Mr Faccin’s stated belief that he was to be compensated if injured in such a match.
Section 9A of the 1987 Act
The Arbitrator’s finding that Mr Faccin’s employment was a substantial contributing factor to the injury is challenged by the appellant in terms found in grounds four and five. Section 9A provides (in its unamended form):
“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.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Ground four
Ground four states:
“The appellant submits the Arbitrator erred in law in finding that the respondent worker suffered injury substantially contributed to by his employment by failing to properly apply s 9A(2)(b) of [the 1987 Act].”
It may be seen that the appellant directs attention in this ground to s 9A(2)(b) and submissions assert that the Arbitrator failed to properly consider the “nature of the work performed and the particular tasks of that work”. The error asserted is that the Arbitrator failed to “direct her attention to how the particular tasks of [Mr Faccin’s] employment caused or materially contributed to him suffering injury when playing rugby league”. Reliance is placed upon the decisions of Hills and Badawi in support of this assertion of error. It is noted in submissions that Badawi confirms that “substantial in s 9A means real and of substance”. It is put that a proper consideration of s 9A(2)(a)–(f) would have caused the Arbitrator to conclude that Mr Faccin had “not satisfied [the] onus of establishing the contribution of his employment was ‘real and of substance’ to his injury”.
I have attempted to summarise the Arbitrator’s reasoning with respect to this question at [46] above. When considering s 9A(2)(b) she said (at T7.11–19):
“Subsection (b). The nature of the work performed and the particular tasks of that work. I will look here at the work for police officers and police officers work in close-knit groups, they need to be based on good relationships between them to both perform the actual tasks required to the best of their ability and to also have the necessary support that's needed when the job is challenging. There is also a need to be fit and healthy.”
The reasoning quoted immediately above is the subject of particular criticism in the appellant’s submissions. Whilst the Arbitrator’s deliberation on this matter was briefly stated, I do not accept that error is demonstrated. A more exhaustive analysis may have included observations that Mr Faccin was assigned general duties at Blacktown Police Station and that his tasks involved law enforcement and keeping the peace. That function required both fitness and a measure of cooperation on his part with fellow police officers. Both those matters are enhanced by his participation in the football competition. It must be remembered that, as noted by the Arbitrator, important concessions were made, fairly and properly, by the appellant’s counsel (at T5.24–30) as follows:
“…for all the right reasons the senior hierarchy within the force, actively encourage police not only to play rugby league but to keep active and participate, … that it actively promotes health and camaraderie within the police service, therefore it’s connected in that sense.”
It was made clear in the decision of the majority in Badawi that:
“Section 9A(1) requires a determination as to whether the employment is a substantial contributing factor to the injury. The determination so called for is not performed in a case such as this by looking at the recreational activity and then seeing whether any aspect of the employment concerned might have strengthened the linkage with that employment. Rather, a decision maker, in determining under s 9A whether the employment concerned is a substantial contributing factor, is required to consider the employment concerned and the circumstances surrounding the occurrence of the injury, including activities that might be undertaken during an interval in the employment. Those circumstances may be fully encompassed by the factors specified in s 9A(2), or there may be other factors that are relevant to take into account” (emphasis added).
I am of the opinion that the Arbitrator’s conclusion concerning s9A addressed both the employment concerned and all relevant circumstances surrounding the occurrence of the injury including the activity of playing rugby league which was accepted by the appellant as having a “connection” with the employment. It is well established that a substantial contributing factor involves a causative element (Badawi per the majority at [80]). On the present facts the “connection” with employment was, in my view, a causative connection; that the injury occurred during the match was “an incident or state of affairs to which [Mr Faccin] was exposed in the course of his employment and to which he would not otherwise have been exposed” (per Basten JA in Da Ros at [24]). The employment, on the evidence, was a substantial contributing factor to the injury, that is it was one which was “real or of substance” and the Arbitrator’s conclusion that the injury was compensable may not be challenged under this ground.
Ground five
Ground five states:
“The appellant submits the Arbitrator erred at law applying the incorrect test of causation under s 9A of [the 1987 Act].”
It is asserted that the Arbitrator erred in adopting the “but for” test when, upon reliance of that stated by Basten JA in Da Ros (at [24]) she concluded that:
“… the football game was an incident, or the injury itself [sic] to which [Mr Faccin] was exposed in the course of his employment and to which he otherwise would not have been exposed but for his employment.”
The statement by Basten JA to which the Arbitrator made reference (and which is referred to above at [83]) is as follows:
“In the present case, the collision with the courier was an incident or state of affairs to which the appellant was exposed in the course of his employment and to which he would not otherwise have been exposed. Because it was one of two contributing factors (the other being the presence of the courier at the same place at the same time) it is difficult to understand why it would not be a substantial contributing factor. No satisfactory alternative having been proffered on behalf of Qantas, and in accordance with the reasoning in Badawi, there was only one conclusion reasonably open on the findings of primary fact.”
The appellant, relying upon that which was stated by the majority in Badawi at [81], is correct to assert that in compensation law the test of causation is not the “but for” test, but one of common sense. However, in my view, matters revealed by the application of the “but for” test, whilst not determinative of the question, may have relevance (as in Da Ros) to the question of causation.
On the present facts Mr Faccin qualified for participation in the match by reason of his employment as a police officer and, as earlier discussed, he was performing his duties in the region from which serving officers were drawn for membership of the particular team. The Arbitrator’s conclusion that the employment was a substantial contributing factor to injury was a question of fact which was determined by her following a summary of all relevant evidence and was not, in my opinion, erroneously founded upon a simplistic assessment of the question of causation by reference to the “but for” test. As to the “test” applied, it must be noted that the Arbitrator (at T6–T7) summarised, albeit briefly, the correct approach to construction and application of s 9A by reference to the decision in Badawi.
At [13.3] of submissions, the appellant appears to challenge the Arbitrator’s factual conclusion concerning employment being a substantial contributing factor to injury by suggesting that relevant evidence had not been taken into account. Matters referred to in submissions include Mr Faccin’s initial rejection of the invitation to participate and his subsequent enquiries about participation together with his election to participate on a rostered day off. That participation was, it is argued, relevantly not known, consented to or approved by his superior. I am of the opinion that no relevant factual error has been made out given the fact that the Arbitrator had summarised the matters raised in the submission in the course of her “background” summary and it may be safely assumed that such matters were taken into account when evaluating the strength of the causal nexus between employment and the injury. Should I be wrong in making that assumption, I am of the view that those matters, upon a proper evaluation of all circumstances, would not have led the Arbitrator to a conclusion different to that reached by her in relation to s 9A.
The appellant seeks to distinguish the present matter from Da Ros having regard to relevant facts. The appellant correctly notes in submissions that Mr Faccin was not “engaged in one overall period of work” as was the case in Da Ros, but was “injured during an interval between discrete periods of work where his employer had no knowledge of his whereabouts or activities.” Whilst such matters are points of distinction it cannot be said, in my view, that the Arbitrator erred in her reliance upon matters stated by the Court in Da Ros when reaching her conclusion. So far as it is suggested in submissions that Mr Faccin “was not at a place required or encouraged by his employer” such argument cannot stand for the reasons earlier stated when the subject of s 4 of the 1987 Act was considered. Ground five is not made out.
Each of the grounds relied upon by the appellant have been rejected and the appeal fails. In the circumstances, for the reasons stated on this appeal, the Arbitrator’s determination is confirmed, subject to the amendments to the Certificate of Determination noted in orders which appear below.
DECISION
Paragraphs 1, 3, 4, and 5 of the Certificate of Determination dated 3 October 2014 are, for the reasons stated on this appeal, confirmed.
Paragraph 2 of the Certificate of Determination dated 3 October 2014 is revoked. In substitution the following findings are recorded:
“2. The injury received on 27 April 2013 was received by the applicant in the course of his employment and it was one to which employment was a substantial contributing factor.”
COSTS
Mr Faccin seeks an order for costs of the appeal. As the rights and liabilities of the parties are to be determined having regard to the Acts in their unamended terms (cl 25 of Pt 19H of Sch 6 to the 1987 Act), I order that the appellant pay Mr Faccin’s costs of the appeal.
Kevin O'Grady
Deputy President
9 February 2015
I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
2
6
0