NSW Police Force v Hain - [2015] NSWWCCPD 11

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	NSW Police Force v Hain [2015] NSWWCCPD 11
APPELLANT:	NSW Police Force
RESPONDENT:	Derek Peter Hain
INSURER:	Employers Mutual Ltd
FILE NUMBER:	A1-2224/14
ARBITRATOR:	Mr J Harris
DATE OF ARBITRATOR’S DECISION:	23 September 2014
DATE OF APPEAL HEARING:	11 February 2015
DATE OF APPEAL DECISION:	16 February 2015
SUBJECT MATTER OF DECISION:	Police officer injured while playing football; unchallenged finding that injury arose out of employment; whether employment a substantial contributing factor to the injury; s 9A of the Workers Compensation Act 1987; alleged failure to give reasons
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr P Mansfield, instructed by Bartier Perry
Respondent:	Mr S Hunt, instructed by MRM Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 23 September 2014 is confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

INTRODUCTION

The respondent worker, Senior Constable Derek Hain, is a senior constable with the NSW Police Force, the appellant. He ruptured his Achilles tendon while playing in a rugby league match on 17 July 2013 (the match).
The match had been organised by police officers to raise funds for NSW Police Legacy Ltd (the Police Legacy), a charitable organisation established to support the families of police officers who have suffered a loss. It provides benefits, services and advocacy to those in its care and recognises the unique role of police, both serving and retired, in the community and the risks associated with the role. It is accepted that the Police Legacy is not part of the NSW Police Force.
The issues before the Arbitrator were whether Senior Constable Hain’s injury arose out of his employment with the appellant and, if so, whether his employment was a substantial contributing factor to the injury. The first issue arose under s 4 of the Workers Compensation Act 1987 (the 1987 Act) and the second under s 9A of that Act. The Arbitrator found in favour of Senior Constable Hain on both issues. The appeal has only challenged the finding on the second issue. For the reasons explained below, the appeal is unsuccessful.

BACKGROUND

The essential facts, as either accepted by the parties or found by the Arbitrator, were that:
(a)     the Police Legacy is considered by members of the NSW Police Force to be a “worthy charity” (T3.32) (all references to the transcript are, unless otherwise stated, to the transcript of the Arbitrator’s oral decision delivered on 19 September 2014);
(b)     organisation of the match was initiated by Constable Russell in a “Command wide” email sent on 30 January 2013, authorised by Sergeant Sierota, in which he proposed a game of rugby league between police officers from the Oxley Local Area Command (LAC) (the Oxley Cods) and the Hunter Valley LAC (the Hunter Valley Broncos) to raise money for the Police Legacy;
(c)     an undated document under the heading of “Hunter Valley Broncos Police Rugby League”, under the names of Trent King (Detective Inspector Trent King), Constable Russell and Senior Constable Andrew Nichols, referred to an annual rugby league charity match between members of the Hunter Valley LAC and the Oxley LAC to be held on 17 July 2013, fostering rivalry between the two LACs, and stating that the event was “focussed on raising vital funds for NSW Police Legacy” through corporate sponsorship and fund raising on the day of the match. The document explained that the Police Legacy was a not-for-profit organisation that provides emotional and financial support to the families of deceased police officers across NSW and that, in the wake of a number of deaths of police officers during the past year, the authors believed it was a worthy cause to support through the running of the event;
(d)     the above undated document “emanated from Detective Inspector Trent King” (T7.24), who “authorised and supported” (T15.8) it;
(e)     on 3 May 2013, a newspaper article appeared in the Singleton Argus headed “Cops Tackle Charity”. The article included a photo of at least four, and probably five, serving police officers. They were Superintendent Jodie Shepherd, the Local Area Commander for the Hunter Valley LAC, Joel Wehlow, Kevin Smith, Andrew Nichols and Bill Landon. Save for Andrew Nichols, all were wearing their police uniforms. Under the photo was written “New Fundraiser for Police Legacy”. The Arbitrator said that the photo showed the Superintendent, “in full dress uniform” (T10.1), supporting the match;
(f)      the article referred to the match on 17 July 2013, explained how the idea was put together, and said that the Hunter Valley Broncos were calling for support from local businesses to get on board through sponsorship for the match, which was a fundraiser for the Police Legacy;
(g)     on 15 July 2013, a similar article appeared in The Northern Daily Leader, a Tamworth paper, headed “Boys in blue take on Hunter peers in charity footy match” and designed to promote the match in the Tamworth area. This article included a photo of two police officers from the Oxley LAC and also referred to the purpose of the match being to raise funds for the Police Legacy;
(h)     participation in the match was voluntary and there were no inducements to participate (T21.8);
(i)      each player paid $150 to participate, which covered the cost of playing gear, transport and accommodation. This amount, together with money from sponsors, was paid into a bank account opened for that purpose;
(j)      the appellant did not contribute financially to the match;
(k)     participants were given local approval (presumably from their LAC) to play on their rostered days off and approval was given for participants to change their rostered shift to that of a rest day or annual leave so they could play, with the “[C]ommand’s roster policy being relaxed for” (T22.21) participants because the Command “recognised the event as a charity event/fundraiser of a similar nature to the NSW ‘Walk for our mates our families’” (T22.23);
(l)      Senior Constable Hain changed his roster to annual leave for the day of the match;
(m)   a breakfast was provided on the morning of 17 July 2013 at the Muswellbrook Police Station, which was paid for from money raised, and attended by the Local Area Commander, who acknowledged the participants. At that breakfast, jerseys were presented during “the Command’s briefing” (T24.19), which demonstrated that other members of the Police Force, who were on duty, “recognis[ed] and support[ed] the rugby league players” (T24.21) and was “clear evidence of support and encouragement by the [appellant]” (T24.24);
(n)     players trained for the match, while off duty, on four or five Wednesday nights prior to 17 July 2013;
(o)     the match was a good idea to raise money for charity and an opportunity to boost “morale in the local area command” (T19.10);
(p)     the match was officiated by NSW Rugby League referees;
(q)     Senior Constable Hain attended planning meetings for the match at Muswellbrook Police Station on 28 May 2013 and 13 June 2013 (T22.11). Those meetings were also attended by Detective Inspector King and Acting Inspector Peter Robinson, and
(r)      public liability insurance for the match was provided by “New South Wales Police Rugby League” (T23.14), but this did not include workers’ compensation insurance.
Based on these facts, which have not been challenged on appeal, the Arbitrator found that Senior Constable Hain’s attendance at the match had not been “required” or “expected” (T29.14) but was one of voluntary participation. He held (starting at T33.25) that the activity had been “authorised” by the appellant because of:
“1)    the use of police computer resources for distribution of information concerning the game;
2)     the use of the headquarters of the Muswellbrook Local Area Command in respect of planning meetings, some of which occurred during work hours;
3)     the fact that only police officers from the Hunter Valley LAC were in one team and serving officers from the Oxley LAC were in the other team;
4)     that the terms of the various emails suggest that one purpose or effect of the game was morale boosting amongst police officers;
5)     that the Superintendent herself [Superintendent Shepherd] appeared in a photograph which was supportive of not only New South Wales Police Legacy but supportive of the New South Wales Police Force participation in the match. As I stated earlier this was a ‘good news story’ showing the local police officers in an excellent light;
6)     that the game had the support of the higher ranks, including the Superintendent [Superintendent Shepherd]. An Inspector [presumably Detective Inspector King] was actively involved in the preparation of the event;
7)     that on the day of the football game, the Command briefing was used to present the participants with their uniforms. Although I do not say it affected my decision I also believe that the insurances of the New South Wales Police Rugby League were used by the organisers for the match.”
The Arbitrator added that, on the balance of probabilities, Senior Constable Hain’s participation in the game was “not only authorised by [the appellant] but was encouraged within the meaning discussed” (T34.26) in JP Morgan Holdings Australia Ltd t/as JP Morgan Operations Australia Ltd v Haider [2006] NSWWCCPD 234 (appeal to Court of Appeal dismissed: Haider v JP Morgan Holdings Aust t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158; 4 DDCR 634).
The Arbitrator found, as an “important fact” (T35.5), that the “leave for rosters [were] relaxed so that players could have time off” (T35.6), or take annual leave, so they could participate in the game. This point was earlier explained by the Arbitrator (at T29.28) where he said that the appellant “facilitated a process where its leave policies were relaxed so that officers could be on leave or rostered off if they desired to participate in the game” (T29.28).
The Arbitrator accepted the points made by the appellant’s counsel, Mr Mansfield, namely, that Senior Constable Hain’s attendance at the match was voluntary, that the participant’s had paid for the occasion themselves, that there was no monetary contribution from the appellant, that all the police officers who attended the game were off duty, and that the event was a fundraising event for the Police Legacy and not a fundraising event as part of the organisation of the appellant. However, the Arbitrator did not believe that these factors were, of themselves, sufficient for Senior Constable Hain to fail.
Accordingly, the Arbitrator found that Senior Constable Hain’s injury arose out of his employment with the appellant. This finding has not been challenged on appeal.
Dealing with whether employment was a substantial contributing factor to the injury, the Arbitrator noted Mr Mansfield’s submission that Senior Constable Hain was injured because he was playing rugby league, which was the real reason for the injury, and that was unrelated to the employment. The Arbitrator rejected this submission, noting that it was contrary to his finding that the “injury arose out of the course of the employment” (T35.34).
The Arbitrator said, at T37.5:
“Section 9A(1) speaks of ‘the employment concerned’ being a substantial contributing factor to the injury. The legislation does not refer to the fact of being employed but to what the worker does in the employment. I find that what [Senior Constable Hain] is doing in the employment is playing or participating in a rugby league game. I do not accept the [appellant’s] submission that the injury is outside s 9A because it was caused by playing in a league game, where I have found that the participation in the league game arose out of the course of employment.”
Considering each of the points in s 9A(2), the Arbitrator found, starting at T37.20:
“a)the time and place of the injury. The time and place of the injury occurred during the football game which I have found arose out of the course of employment as a police officer in the employ of the [appellant];
b)the nature of the work performed and the particular tasks of that work. I found that the participation in the rugby league game arose out of the course of employment as a police officer. The description by [Senior Constable Hain] that he injured his ankle in the course of employment playing a rugby league game is entirely consistent with normal participation in the game.
c)the duration of the employment. I do not find that this was a relevant matter in the present case;
d)the probability of injury or similar injury would have happened anywhere at about the same time or at the same place as the worker’s life. The evidence before me is that the injury occurred as a result of [Senior Constable Hain] participating in the rugby league game. There is simply no basis to suggest that the ankle or the Achilles tendon would have been ruptured at or about the same time or at the same stage of the worker’s life. This clearly is not a case of a degenerative problem such as a heart attack case or the like.
e)the worker’s stated [sic, state of] health before the injury and the existence of any hereditary risk. Again, there was no suggestion that [Senior Constable Hain’s state of] health or existence of any hereditary risk caused or contributed to this injury. There is no suggestion that [Senior Constable Hain’s] lifestyle or his/her activities outside the workplace contributed to this injury.”
The Arbitrator added that, of the above factors, three of them supported a finding in favour of Senior Constable Hain and the others had no relevance to the case. Accordingly, he found that the employment concerned was a substantial contributing factor to the injury. He then made orders for the payment of the compensation claimed and remitted the assessment of whole person impairment to the Registrar for referral to an Approved Medical Specialist.
On 23 September 2014, the Commission issued a Certificate of Determination in the following terms:
“The determination of the Commission in this matter is as follows:
1.     Award in favour of the Applicant pursuant to the former s. 36 of the 1987 Act at the rate of $1,610.24 per week from 17 July 2013 to 18 November 2013;
2.     Respondent to pay the Applicant’s section 60 expenses;
3.     The matter is the matter be [sic] remitted to the Registrar for referral to an Approved Medical Specialist as follows:
Dates of Injury:   17 July 2013
Body Parts/Systems:                  Right Lower extremity
Method of Assessment:             Whole person impairment
4.     The documents to be sent to the AMS are:
e)      The Application to Resolve a Dispute and all attached documents;
f)      The Reply and all attached documents;
g)Application to Admit late documents filed by the Respondent and dated 18 July 2014;
h)Application to Admit late documents filed by the Applicant and dated 8 September 2014 (pages 1 – 7 only).
5.     Respondent to pay the Applicant’s costs as agreed or assessed. I declare that the matter is complex for the purposes of costs of both parties and order an uplift of 20%. Reasons for the order were given in the ex tempore decision.” (paragraph numbering as per original)
The appellant has challenged the Arbitrator’s determination that Senior Constable Hain’s employment was a substantial contributing factor to his injury.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that playing rugby league was part of Senior Constable Hain’s duties as a police officer and that employment was a substantial contributing factor to the injury;
(b) failing to correctly apply s 9A to the facts;
(c) misdirecting himself in the application of s 9A;
(d) failing to apply the higher standard of causation required to be satisfied under s 9A than the standard required for satisfaction under s 4;
(e) finding that what Senior Constable Hain was doing in his employment was playing or participating in a rugby league game, and, in the alternative,
(f) failing to provide any or any adequate or sufficient reasons in respect of his findings in relation to s 9A.
I will deal with these issues under two headings: substantial contributing factor and reasons.

SUBSTANTIAL CONTRIBUTING FACTOR

Submissions

Mr Mansfield submitted that s 9A requires focus on the employment concerned, such as the nature of the work performed and the particular tasks of that work. He said that the Arbitrator erred in determining that Senior Constable Hain’s employment as a police officer was playing or participating in a rugby league game. The fact that the injury arose out of or in the course of employment is not determinative that the employment was a substantial contributing factor to the injury within the meaning of s 9A. Both s 4 and s 9A require independent satisfaction for the injury to be compensable.
Mr Mansfield contended that the evidence does not “establish the nature, conditions, obligations and incidents of the duties of a police officer involved the playing of [a] rugby league game to raise funds for the NSW Police Legacy which was an entity separate to the NSW Police Force”. The notion of employment is defined by objective evidence of what was actually required and what the worker actually did in the job (Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324 (Hills)).
Mr Mansfield said that the factors listed in s 9A(2) need to be considered “to the extent they are relevant” (Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 (Badawi)). He added:
“In Badawi it was held section 9A(2)(b) directs attention to the nature of the work performed and the particular tasks of the employment concerned. This does not involve what the worker was doing at the time of the injury. For the test of substantial contributing factor to be satisfied, the [A]rbitrator ought to have discussed and addressed what the worker actually does in his employment as a police officer that caused or contributed to the injury.”
Mr Mansfield said that the Arbitrator discussed the factors listed in s 9A(2) but did not apply those factors “relevantly to the nature, conditions, obligations and incidents of the duties of a police officer”. Senior Constable Hain’s normal work involved policing duties, which did not involve playing rugby league. The Arbitrator, in his discussion under s 9A(2), failed to consider the nature, conditions, obligations and incidents of the duties of a police officer.
The playing of rugby league was not part of Senior Constable Hain’s policing duties. The Arbitrator therefore erred in finding that Senior Constable Hain satisfied s 9A because the injury was caused by playing a rugby league game, which was found to have arisen out of the employment and he failed to take into account details of Senior Constable Hain’s policing duties and did not address the nature and tasks of the work performed by police officers.
In determining whether the injury is compensable under s 9A, Mr Mansfield contended that the Arbitrator should have analysed whether Senior Constable Hain “was performing positive employment duties or was merely in an interval between such duties when the injury occurred” (Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 (Hatzimanolis)).
Mr Mansfield said that where a worker suffers an injury in a social environment, “for the purposes of s 9A there must be a requirement (of an informal kind) and an expectation to attend the social function. Encouragement and inducement falls short of that”.

Discussion and findings

I do not accept Mr Mansfield’s submissions.
The starting point in the analysis of whether the Arbitrator erred in his conclusion on whether s 9A was satisfied is the concession by Mr Mansfield that the Arbitrator did not err in finding that the injury arose out of Senior Constable Hain’s employment. It is accepted that the “arising out of test” involves a causal connection between the employment and the injury (per Fullagar J in Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547 at 558). Moreover, an injury may arise out of the employment even though, at the time of the injury, the worker was not in the course of his or her employment (Hutley JA (Glass and Samuels JJA agreeing) in Tarry v Warringah Shire Council [1974] 48 WCR 1 at 7).
While the Arbitrator’s statement (at T37.9) that “what [Senior Constable Hain] is doing in the employment is playing or participating in a rugby league game” was inaccurate, in the context of his reasons overall, I think it is clear the Arbitrator meant that Senior Constable Hain, by playing in the match, was engaged in an activity that arose out of his employment because it was authorised and encouraged by the appellant.
The Arbitrator’s statement (at T37.9), when properly understood, involved no relevant error and was consistent with his finding that Senior Constable Hain had been authorised and encouraged by the appellant to participate in the match, which findings all showed a strong, direct and intimate connection between the match and Senior Constable Hain’s employment as a police officer. The factual findings upon which the Arbitrator based his conclusion have not been challenged and were clearly open to him. Therefore, I do not believe that the Arbitrator’s imprecise expression at T37.9 is of any significance or that it has materially affected the outcome.
It is correct, as Mr Mansfield submitted, that the fact that an injury arose out of or was received in the course of the employment is not necessarily sufficient, on its own, to satisfy s 9A. However, as the plurality acknowledged (at [85]) in Badawi, there may be circumstances where the factors considered necessary and sufficient to satisfy the test “arising out of employment” for the “purposes of s 9 [sic s 4]”, are sufficient to satisfy the test in s 9A. The factual circumstances of the present case, which the appellant has not challenged on appeal, satisfy both the arising out of test in s 4 and the substantial contributing factor test in s 9A.
The satisfaction of s 9A is a question of fact (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; 22 NSWCCR 46 per Giles JA at [29]), as is the question of whether the injury arose out of the employment. Although, with s 9A, the strength of the linkage between the employment and injury is the question in issue, the determination is an evaluative one, leaving a broad area for the personal judgment of the trial judge (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 at [105]–[106] 299 per McColl JA (Mason P and Beazley JA agreeing)). Being an evaluative matter involving questions of impression and degree, a finding as to relative contributing factors is a finding of fact (Emmett JA in Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102 at [46], citing Badawi at [48]).
It is also accepted that s 9A directs attention to the nature of the work performed and the particular tasks of that work and not to what the employee was doing at the actual time of injury (Badawi at [96]). The nature of Senior Constable Hain’s work was that of a police officer. Effectively, Mr Mansfield contended that it was not an inherent or essential feature of Senior Constable Hain’s work as a police officer that he play rugby league.
However, it is erroneous to approach the matter in that way. As explained by Basten JA in Badawi:
“124 The error is demonstrated by the discussion in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 at 632-633, in the judgment of Kitto J. His Honour was addressing that part of the definition of ‘injury’ in the predecessor to the current legislation, which included the aggravation etc of a disease where ‘the employment was a contributing factor to such aggravation ...’. In considering the grounds identified by the dissenting judge in the Court below and relied upon by the appellant, his Honour said:
‘The second ground treats the word ‘employment’ in the definition as something distinct both from the fact of the employment of the worker and from any consequence of the employment, and confines it (if I understand the notion correctly) to the inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work.’
125 His Honour rejected that approach in the following terms:
‘With all respect, I think that to take this view is to refine upon the word too much and by so doing to miss what the definition is manifestly intending to say. Where it is possible to identify as a contributing factor to the aggravation ... of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc.’”
Basten JA added, at [126]:
“The same approach should be adopted with respect to the application of s 9A. The concept of ‘the employment concerned’ is not to be restricted to the activities in carrying out the actual duties required of the employee, nor is it to be constrained by an assessment of the benefits which might be obtained by the employer from the activity in question.”
His Honour further explained (at [127]) that, when understood in light of Kitto J’s comments in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626, Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740 is authority for the proposition that “one is not required, in applying s 9A(1), to identify some ‘inherent features or essential incidents of’ the employment and reject as not part of the employment, factors which are merely incidental to those features or incidents”.
Dealing with whether s 9A adopts a different approach to the activity if it occurred during an interval or interlude, Basten JA observed that subsection (1) of s 9A does not suggest such a different approach, though subsection (2) was less clear. Noting that s 9A(2) does not purport to mandate what matters are to be taken into account, his Honour said that it seemed unlikely that the examples in that subsection were intended to be mandatory, nor would they always be relevant.
Significantly, in the context of the present matter, his Honour said (at [131]) that the matters listed in s 9A(2):
“should not be read as excluding from the concept of ‘the employment concerned’ all activities which are not within the inherent features or essential incidents of the employment. The apparent purpose in including s 9A in the Workers Compensation Act was to impose a causal connection of a substantial kind between the employment and the injury, not to restrict in some way the concept of ‘the employment’.”
His Honour acknowledged (at [132]) that employment is not to be regarded as a substantial contributing factor “merely because” the injury both arose out of and in the course of the employment and that, “in relation to an injury arising ‘out of’ the employment, the inference may be that the test of a ‘substantial contributing factor’ is a stronger causal requirement”.
His Honour added, at [133]:
“In a practical sense, and in cases to which s 9A applies, the alternative tests in the opening words of s 4 will be irrelevant: satisfaction of s 9A(1) is a necessary and sufficient condition for a compensable ‘injury’. (There are of course other separate requirements.) Furthermore, the statement that satisfaction of one or both of the s 4 tests will not as such satisfy s 9A(1), is not to preclude satisfaction of all three tests by reliance on the same facts. In many, if not most, cases of compensable injury, that will be so. The facts which satisfy the causal connection between employment and injury required by s 9A will also satisfy the test of ‘arising out of’ in s 4 and, if the injury also occurred in the course of employment, the same facts will be those which satisfy that test. Where the key fact is an activity carried on by the claimant, that will be the key element in each test.”
The appellant’s approach in the present case invites the Commission to look at the “inherent or essential incidents” of the work of a police officer and to find that, because Senior Constable Hain was not injured while performing such “inherent or essential” work, he cannot satisfy s 9A. That is inconsistent with binding authority and is incorrect.
Consistent with the above statements by Basten JA, the facts that satisfy the causal connection between employment and injury required by s 9A in the present case are the same facts that satisfy the test of “arising out of”. The “key fact” is the activity carried on by the claimant (Senior Constable Hain) at the time of injury. That activity was playing in a rugby league match.
The Arbitrator found, and it has not been challenged, that Senior Constable Hain’s participation in that activity was not only authorised but also encouraged by the appellant. This followed from the factors listed at T33.25 and T35.5, reproduced at [5] and [7] above. Thus, the injury arose out of the employment. I add, in passing, that on the Arbitrator’s findings, it may well have been open to find that the injury was also received in the course of the employment but, as that has not been argued, I express no conclusion on that point.
In considering whether an injury is received in the course of employment, though not while engaged in actual work, the decision of the plurality in Comcare v PVYW [2013] HCA 41; 88 ALJR 1 (PVYW) is instructive. Their Honours explained (at [38]) that, for the principles in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential enquiry is then: how was the injury brought about? If the worker was injured while engaging in an activity, the question is: “did the employer induce or encourage the employee to engage in that activity?” If the answer is affirmative, the injury will have occurred in the course of the employment.
As previously noted the Arbitrator’s finding that the appellant had encouraged Senior Constable Hain to participate in the activity that caused his injury was open on the evidence and has not been challenged. As discussed further below, the Arbitrator’s analysis and conclusion on whether employment was a substantial contributing factor to the injury was perfectly consistent with that finding and with the approach in PVYW.
The submissions that the injury occurred where the game was played, and not where Senior Constable Hain was normally stationed, that Senior Constable Hain was not on duty at the time, and that Senior Constable Hain was a police officer whose duties were not related to playing rugby league while not on duty, have ignored the Arbitrator’s finding that the injury arose out of the employment. All of those matters may well have been relevant to the determination of whether the injury in fact arose out of the employment, but that finding has not been challenged.
Mr Mansfield’s reliance on Hills is misplaced. In that case, the employer always challenged the assertion that the worker’s injury arose out of the employment. In the present case, there is no such challenge to the Arbitrator’s finding on that issue.
Turning to s 9A, the causal connection required by that section is one that is “real and of substance” (Badawi per Allsop P, Beazley JA and McColl JA at [4]). That test was satisfied in the present case because, had Senior Constable Hain not been authorised and encouraged by the appellant to participate in the match, an activity that was clearly supported by the appellant, he would not have done so and would not have been injured. In other words, Senior Constable Hain’s employment was the clear and direct cause of his injury. Thus, the causal connection was “real and of substance”.
Mr Mansfield’s submission that the match was outside work hours and played away from Senior Constable Hain’s usual place of work is not, in the circumstances of this case, a factor that diminishes the strength of the causal connection between the employment and the injury. As explained in Badawi, if a worker is injured during an interval or interlude in the employment, a matter that will be identified through the identification of the time and place of injury in s 9A(2)(a), “then what the worker is doing during such interval or interlude is a consideration to which the decision maker will have regard in determining whether the employment is a substantial contributing factor to the injury” ([97]).
The Arbitrator had full regard to what Senior Constable Hain was doing at the time of his injury. He determined that Senior Constable Hain’s participation in the match was authorised and encouraged by the appellant and, therefore, the injury arose out of the employment. Thus, in the terms used in PVYW, the activity that caused the injury was one that the appellant had encouraged. Furthermore, it was one from which the appellant clearly benefitted in the form of improved morale and public relations. In these circumstances, the fact that Senior Constable Hain’s usual work was that of a police officer does not diminish the strength of the causal connection between the injury and his employment.
Moreover, other than to say that Senior Constable Hain could not succeed, because he was playing football at the time of the injury, and that was not part of his usual duties, Mr Mansfield made no relevant submission at the arbitration about the fact that the injury occurred during an interval between two periods of employment rather than during an overall period of employment. He merely submitted (at T90.10 – 18 September 2014) that “I suppose you could say a day off or annual leave is an interval”.
The following observation by Basten JA in Badawi (at [121]) is particularly relevant and applicable in the present matter: “Where it is the very activity of the claimant, which was the conduct authorised, encouraged, or permitted by the employer … , the conclusion that the employment was a substantial contributing factor to the injury is the only conclusion reasonably open”.
Given the Arbitrator’s unchallenged findings, it does not matter whether the injury was received during a period of overall work or during an interval between two periods of work. Senior Constable Hain was injured while engaged in an activity, playing in the match, authorised and encouraged by his employer. In the circumstances, the conclusion that the employment was a substantial contributing factor is the only conclusion reasonably open. His employment was not only “a” substantial contributing factor to the injury, it was “the” substantial contributing factor.
As Mr Mansfield did not challenge the Arbitrator’s findings on the other matters listed in s 9A(2), it is not necessary to deal with them in any detail. However, I note that none of those matters diminishes the strength of the causal connection between the injury and the employment. In particular, I note that, as the Arbitrator found, there is no evidence that the injury would have happened anyway, at about the same time or at the same stage of Senior Constable Hain’s life, if he had not worked for the appellant.
It follows that the Arbitrator’s s 9A analysis involved no material error and this ground of appeal is not made out.

REASONS

Submissions

Mr Mansfield submitted that the Arbitrator failed to provide adequate and sufficient reasons for his findings under s 9A and that he merely relied on his conclusion that the injury arose out of employment and therefore determined that the employment was a substantial contributing factor to the injury.

Discussion and findings

When considering a challenge to the adequacy of reasons, it must be remembered that the decision must be read as a whole and that “reasons need not be lengthy or elaborate” (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443–444). The extent and scope of a trial judge’s (or Arbitrator’s) duty to give reasons depends upon the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed)). The reasons must do justice to the issues posed by the parties’ cases (Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing)).
Moreover, when considering if an Arbitrator has complied with his or her obligation to give reasons, it is necessary to have regard to the overall sense and import of the reasons, read as a whole and without an eye attuned to the detection of error (Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167). In addition, courts should avoid an “overly pernickety examination of the reasons” and that the “focus of attention is on the substance of the decision and whether it addressed the ‘real issue’ presented by the contest between the parties” (per Kirby J in Roncevich v Repatriation Commission [2005] HCA 40 at [64]; 222 CLR 115).
On the issue of whether Senior Constable Hain satisfied the test in s 9A, the Arbitrator considered the terms of s 9A(2) and gave reasons with respect to each of the provisions in that subsection. Thus, he exposed his reasoning and articulated the essential ground on which he based his decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280). Those reasons have been analysed above and will not be repeated. The submission that the Arbitrator failed to give adequate reasons was without merit and is rejected. The appellant’s real complaint is that it does not agree with those reasons.

CONCLUSION

The appellant has not demonstrated that the Arbitrator’s decision is affected by any material error. It was open to the Arbitrator to find, in the circumstances of this case, that Senior Constable Hain’s employment was a substantial contributing factor to his injury.

DECISION

The Arbitrator’s determination of 23 September 2014 is confirmed.

COSTS

Though this claim was made after 1 October 2012, the injury having occurred on 17 July 2013, the Commission retains power to determine by whom, to whom and to what extent costs are to be paid (s 341 of the 1998 Act). That is because, as the worker is a police officer, the amendments introduced by the Workers Compensation Legislation Amendment Act 2012, which, among other things, repealed s 341, do not apply to or in respect of an injury received by him (cl 25 of Pt 19H of Sch 6 to the 1987 Act).
The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

Bill Roche
Deputy President

16 February 2015

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE