NSW Police Force v Hain

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

1. 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).

2. 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.

3. 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

1. 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…