Reported Decision : 6 DCLR (NSW) 127 New South Wales District Court CITATION: Joachim Lavin v The Commissioner of Police [2007] NSWDC 286 HEARING DATE(S): 16 July 2007 EX TEMPORE JUDGMENT DATE : 16 July 2007 JURISDICTION: Civil (Residual Jurisdiction) JUDGMENT OF: Neilson DCJ at 1 DECISION: Decision of the Commissioner of Police set aside; Suffering by the plaintiff of injuries were caused by his having been hurt on duty; Defendant to pay plaintiff's costs; Exhibits to be retained CATCHWORDS: Sergeant of Police travels from his home (whilst off duty) to pick up his daughter from her workplace - On the return journey to his home his vehicle is "tail-gated" by another motorist for a considerable distance - Plaintiff stops his car and other motorist ("offender") pulls up behind him - Plaintiff leaves his vehicle to talk to offender but offender drives off, narrowly avoiding a collision with the plaintiff - Plaintiff had formed view that offender had committed offences - Plaintiff gives chase to offender's vehicle but after a distance decided to give up the pursuit - Whilst slowing down to make turn to return to his original route back home, a malfunction of vehicle causes plaintiff to lose control of his vehicle which collides with another vehicle on incorrect side of carriageway for plaintiff - Whether personal injury suffered by plaintiff was caused by his having been "hurt on duty" as required by Police Regulation (Superannuation) Act 1906 - Whether plaintiff was "on duty" at time of motor vehicle accident - Held: From the time that the plaintiff formed the view that the offender had committed a criminal offence and the plaintiff did something to see to the offender's arrest, he was acting in the course of his duty - The plaintiff's duty came to an end either when (a) he returned to the route he had originally embarked upon, or (b) he returned to the place at which he interrupted his original journey i.e. the place at which he had stopped. It was unnecessary to decide which was the proper test as the plaintiff had not done either of those things at the time he lost control of his vehicle - Police Act 1990 sections 6 and 201 - NSW v Fahey [2007] HCA 20 - DPP reference No 1 of 1993, The Queen v K (1993) 118 ALR 596 - DPP v Gribble [2004] NSWSC 926 - Workers Compensation Act 1987 section 9A - Stanton-Cook v TAFE Commission (1999) 17 NSWCCR 632 - Held: Plaintiff was not on a "periodic journey" within section 10 of the Workers Compensation Act 1987 - Cunnigham v Tobin and Ors t/as Stingray Cafe (2001) 21 NSWCCR 524 - Hatzimanolis v ANI Corporate Ltd (1992) 173 CLR 473 - Mills, Workers Compensation NSW page 1761 - [Notice of Appeal filed] Police Regulation (Superannuation) Act 1906 LEGISLATION CITED: Police Act 1990 Workers Compensation Act 1987 NSW v Fahey [2007] HCA 20 The Queen v K (1993) 118 ALR 596 CASES CITED: DPP v Gribble [2004] NSWSC 926 Stanton-Cook v TAFE Commission (1999) 17 NSWCCR 632 Cunnigham v Tobin and Ors t/as Stingray Cafe (2001) 21 NSWCCR 524 Hatzimanolis v ANI Corporate Ltd (1992) 173 CLR 473 PARTIES: Joachim Lavin (Plaintiff) The Commissioner of Police (Defendant) FILE NUMBER(S): RJ 272/06 COUNSEL: T Edwards (Plaintiff) R Perrignon (Defendant) SOLICITORS: Harris Wheeler (Plaintiff) Henry Davis York (Defendant) JUDGMENT 1 HIS HONOUR: The plaintiff Joachim Patrick Lavin is a sergeant of police. He was attested as a probationary constable of police on 8 December 1980 and thereupon became a contributor to the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906. 2 On 7 September 2003, the plaintiff sustained a number of injuries in a motor vehicle accident. On 19 December 2005 the plaintiff, through his solicitor made a claim for a lump sum compensation under s 12D of the Act. His claim was for twenty-two per cent whole person impairment and a gratuity for pain and suffering as provided by s 67 of the Workers Compensation Act 1987. 3 In the course of processing that application the administrator of the Police Superannuation Fund required the Commissioner of Police to decide whether the suffering by the plaintiff of the injury on 7 September 2003 was caused by his having been hurt on duty. On 8 June 2006, the Commissioner of Police by his delegate determined that the multiple injuries sustained by the plaintiff in the motor vehicle accident of 17 September 2003 were not caused by his having been hurt on duty. From that decision of the Commissioner of Police the plaintiff brings this appeal pursuant to s 21 of the Act. 4 There is little evidence before me, but that evidence is sufficient to enable me to determine the current matter. That evidence is a number of documents and the plaintiff's evidence-in-chief together with two questions which I asked him after learned counsel for the defendant declined to ask the plaintiff any questions in cross-examination. The plaintiff then closed his case and the defendant called no evidence. The facts are not in dispute. However, this case does raise some fine questions for decision of a legal nature, questions important to both the plaintiff personally, his colleagues and the defendant himself for the administration of the Police Force. 5 At the time that he sustained the injury in question, the plaintiff was a sergeant of police attached to the Crime Scene Investigation with the Newcastle Police. His rostered shift on 17 September 2003 ended at 4pm. He left his workplace at sometime between 4 and 4.30pm. He travelled by train from Newcastle to Wyee and then collected his car which he drove to his home at 8 Halcyon Street, Mannering Park. The plaintiff arrived home at sometime between 5.30 and 5.45pm. 6 The plaintiff's then sixteen year old daughter, Erin, had a job working for Big W at Westfields at Tuggerah. Her shift was due to finish at 7.30pm. The plaintiff went to collect his daughter from her workplace and bring her home. He left his home shortly after 7pm. He was driving his wife's VT Berlina sedan. The journey between Mannering Park and Westfields at Tuggerah was approximately twenty-six kilometres. The plaintiff did collect his daughter at 7.30pm or shortly thereafter at the shopping mall and then proceeded on the trip back home to Mannering Park. 7 Part of that trip required the plaintiff to proceed in a northerly direction along the Pacific Highway. He was required to stop at traffic control lights at the intersection of the Pacific Highway and Wyee Road at Doyalson. The plaintiff was travelling in the right hand lane of two lanes on his correct side carriageway. The applicable speed limit in this section of the highway was eighty kilometres per hour. When the traffic control lights turned green, the plaintiff moved off travelling northwards along the Pacific Highway. The plaintiff noticed a vehicle travelling very closely behind him and indeed extremely closely behind him. Doing the best he could to estimate the distance of the other motorist's vehicle from the rear of the plaintiff's car he thought there was only a one or two metre gap. The other car was burning high beam headlights. Because of the other motorist's use of high beam headlights the plaintiff was unable to use either his rear or side mirrors. He was unable to identify either the make or model of the vehicle which was following him. Besides the other motorist's tailgating manoeuvre, the other motorist was moving from side to side within the lane, with his lights still on high beam. The plaintiff was unable to see correctly to ascertain whether he could move into the left hand lane. In order to do so he accelerated to ninety kilometres per hour to leave a gap between him and the motorist who had been following him and he was able to turn into the left hand lane before turning left off the Pacific Highway into Ruttleys Road which would lead him towards Mannering Park. 8 Notwithstanding the fact that the plaintiff had turned off the highway into Ruttleys Road, the motorist who had been tailgating the plaintiff continued to follow him and continued the tailgating manoeuvre. There was only one lane of each side of the carriageway in Ruttleys Road. The speed limit on that road was also eighty kilometres per hour. The plaintiff slowed down and moved to the left of Ruttleys Road in order to enable the following motorist to overtake the plaintiff, but the other motorist declined to do so and continued to follow the plaintiff. The plaintiff then moved back onto the full carriageway of Ruttleys Road and turned right into Vales Road which leads directly to Mannering Park. The other motorist continued to follow the plaintiff and to continue his tailgating manoeuvre. In the first part of Vales Road the speed limit was then eighty kilometres per hour. Although there is no direct evidence, the inference to be drawn from the plaintiff's evidence is that Vales Road like Ruttleys Road is one lane, one each way. 9 Before reaching Griffith Street, Mannering Park, the speed limit changes from eighty kilometres per hour to sixty kilometres per hour. The plaintiff obeyed the new speed restriction sign. The other motorist continued to follow him. The plaintiff by this stage, at the latest, and probably earlier, had decided that the other motorist was driving in a manner dangerous to the public and that the other motorist ought be prosecuted. The only way that could be done was to ascertain the identity of the motor vehicle being driven by the other motorist and that ought lead to the identification of the other motorist whom I shall hereafter call the offender. 10 The plaintiff's daughter was alarmed that the offender might be following the plaintiff and his daughter to their home in Halycon Street. She asked her father, the plaintiff, not to return home. The plaintiff decided to pull his vehicle to the kerb and stop immediately south of the intersection of Elliott Street and Vales Road. From other evidence it appears that it was also south of the intersection of Catherine Street and Vales Road. 11 When the plaintiff stopped his vehicle the other vehicle pulled up behind him and stopped, still with its lights on high beam. The plaintiff told his daughter that she was to record the registered number of the other vehicle. The plaintiff alighted from his vehicle in order to identify the other vehicle. However, because of the use of high beam lights the plaintiff was still unable to identify the other vehicle, either its make or its type. When the plaintiff alighted from his vehicle he was wearing police issue blue overalls, but a sloppy joe type jumper which was not regulation police uniform. He was wearing no police identification or rank badges. However, it is always possible that an offender may have recognised police issue overall pants. The offender put his vehicle into action and drove off quickly, but in a way that threatened the plaintiff. The plaintiff had to put himself into his vehicle and pull the door as close to the side of the vehicle as he could in order to avoid the other vehicle's colliding with him. The plaintiff elected to pursue the offender's vehicle in order to seek to identify it. 12 The offender turned right into Catherine Street and the plaintiff pursued. The plaintiff thought the offender may have turned left into Rupert Street and he pulled almost to a dead stop at Rupert Street but could see no lights on it. However, he did see lights further along Catherine Street to the east. He then resumed his journey along Catherine Street and followed lights which he believed to be the lights of the offender's vehicle, left into Griffith Street and then left into Campbell Parade. He followed the lights of the offender's vehicle potentially to the intersection of Campbell Parade and Vales Road where the offender's vehicle, assuming it was his vehicle, turned left into Vales Road. The plaintiff followed the lights of the offender's vehicle along Vales Road in a southerly direction and into the eighty kilometre per hour zone. However, he was not making any headway on the offending vehicle and the plaintiff elected not to pursue the offending vehicle any further. He decided that he would make a left hand turn into an unnamed street shown on Exhibit E, a map, which led to the Vales Point Power Station. The intersection of that road with Vales Road has been marked with a red asterisk. However as the plaintiff was about to make the left hand turn into the power station street he heard a noise which to him sounded like the discharge of a gunshot underneath the car. Immediately following that he lost control of the vehicle and it slid sideways in a southerly direction down Vales Road and onto the incorrect side of the carriageway where the plaintiff's vehicle collided with another vehicle. 13 The evidence suggests that the plaintiff's daughter, Erin, was severely injured, as well may have the occupants of the vehicle with which the plaintiff's vehicle collided. It is obvious from what I have said earlier about the nature of this appeal that the plaintiff was also injured. Subsequently, the plaintiff was served with a court attendance notice and there was a paper committal hearing in the Local Court at Wyong. The plaintiff was then arraigned in this Court, sitting in its criminal jurisdiction at Gosford. The trial was held before Acting Judge O'Reilly sitting without a jury. The trial lasted six days. On 30 March 2005, his Honour acquitted the plaintiff. 14 The plaintiff had approximately six weeks off duty as the immediate result of this motor vehicle accident. He then returned to normal duties for some short time until he was served with the court attendance notice. He was then placed on restricted duties, but that was not due to any physical condition of the plaintiff but rather his status as an accused person. The plaintiff was reinstated to normal duties after he was acquitted by his Honour. 15 There is no evidence other than that of the plaintiff as to what caused this motor vehicle accident. The only inference to be drawn from what the plaintiff said is that there had been some mechanical malfunction or accident that occurred to the plaintiff's vehicle, strictly the vehicle belonging to his wife, but being driven by him. Nothing turns on that point. That mechanical failure or accident led to the plaintiff's losing control of the vehicle which led to the serious motor vehicle accident. There is no suggestion that alcohol was a factor in the cause of this accident and the evidence makes it clear that the plaintiff at all times complied with his colleagues in the Police Force in the investigation of this accident. 16 The plaintiff's case is that when he decided to identify the offender's vehicle with the intention of identifying the offender with a view to the offender's being prosecuted he placed himself on duty. His case is that he continued on duty until the time of this collision. The plaintiff argues that because he was on duty the injury arose either out of or in the course of his employment. If that be the case the plaintiff must also establish that his employment was a substantial contributing factor to the occurrence of his injuries as required by s 9A of the Workers Compensation Act 1987. 17 In the alternative, the plaintiff claims that if his duty had ceased at the time he decided no longer to pursue the offender, then he was on a periodic journey between his place of employment and his place of abode at the time of the motor vehicle accident and therefore that he would have an entitlement under s 10 of the Workers Compensation Act 1987 which would entitle him to "hurt on duty" status for the purposes of the Police Regulation (Superannuation) Act 1906. 18 The Police Act 1990 as amended by the Police Service Amendment (NSW Police) Act 2002 establishes the NSW Police. Inter alios the NSW Police includes both the Commissioner of Police and all other police officers and administrative officers employed under the Police Act 1990. 19 Section 6(1) provides that the mission of the Police Service: "Is to have the police and the community working together to establish a safer environment by reducing violence, crime and fear." 20 Section 6(2) sets out the functions of the NSW Police which are to include providing "police services" for New South Wales. The term "police services" is defined in s 6(3) to include a number of matters, the first two of which are: "(a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal activities or in any other way …" 21 In discussing the same Act recently in New South Wales v Fahey [2007] HCA 20, Gummow and Hayne JJ said at [21]: "The Police Service Act prescribed the ranks of police officers within the Police Service. Read as a whole, the Police Service Act demonstrated that the evident purpose of the legislation was, as maybe expected, to create a hierarchical and disciplined force. Chief among the statutory provisions giving effect to that purpose was s 201 which made it a criminal offence for a police officer to neglect or refuse either to obey any lawful order or to carry out any lawful duty as a police officer." 22 Section 201 still exists in the same form in the Police Act 1990. It can be seen, therefore, that the plaintiff as a sergeant of police had a statutory duty to do a number of things and it was an offence for him to neglect to perform those duties. Those duties were the protection of persons from injury and death and the prevention and detection of crime. Having formed a view that the offender was guilty of driving in a manner dangerous to the public the plaintiff was required by his duty to do his best to lead to the apprehension of the offender. The question then becomes how far does the plaintiff's duty extend? 23 I have been referred to two decisions which are of assistance. The first is the Director of Public Prosecutions reference no. 1 of 1993, The Queen v K (1993) 118 ALR 596, a decision of Gallop, Spender and Burchett JJ sitting as the Full Bench of the Federal Court of Australia. Their Honours in a joint judgment commenced to review the applicable authorities at page 600 and at page 601 said this: "The effect of all those cases is that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein." 24 The same problem was considered by Barr J in DPP v Gribble [2004] NSWSC 926 in which his Honour quoted from, amongst other authorities, the decision of the Full Bench of the Federal Court to which I have just referred. 25 Clearly from the time that the plaintiff formed the view that the offender had committed a criminal offence and that the plaintiff could do something to see to the offender's arrest, he was acting in the course of his duty. The question is when did the course of that duty cease? Taken literally, from what fell from their Honours in the Federal Court his duty did not cease until the duty was completed, but that completion was frustrated. The other criterion advanced by their Honours was that the plaintiff was on duty whilst "engaged in pursuing the task". Taken literally the plaintiff ceased to be engaged in the task, perhaps from the moment that he decided that pursuit was no longer possible and that he would stop his pursuit and return to the trip upon which he embarked, the trip from Westfields at Tuggerah to his home at Mannering Park. 26 However, when judges discuss the law they do not make statements that are equivalent to a statutory enactment. The common law is incremental, and, in so far as statutory interpretation is concerned, where judges say what a statute means the words the judges use are merely a gloss on the underlying meaning of the words of the statute itself. 27 May I pose this analogy for the sake of exposing my reasoning process. Assume that there is a high speed police chase with police in pursuit of an offender travelling perhaps at 150 kilometres per hour along a highway or motorway with lights flashing and sirens blaring. Do the police involved in the pursuant stop their duty the instant they form the view that they will not catch the offender or does that extend further, for example, to the time in which they return to driving at a normal speed without lights and sirens activated, until they return to some other duty. In my view the former is not the case. Furthermore, I am not in this matter concerned with an issue, for example, as to whether when a policeman was assaulted he was assaulted in the course of his duty, but rather I am required to ascertain whether at the time the plaintiff was injured he would, if he were a worker within the meaning of the Workers Compensation Act 1987, be entitled to compensation under that Act. 28 In my view the two tests are not the same. Here the plaintiff at the time that he lost control of the vehicle was attempting to make a turn in order to bring his pursuit of the offender to an end, to make a right hand turn back into Vales Road and then return to the trip which he had undertaken from Westfields at Tuggerah. Indeed, he had interrupted that trip shortly south of Elliot Street when he pulled over and stopped and then found it necessary to pursue the offender's vehicle. 29 In my view the plaintiff's duty came to an end either when he returned to the route he had originally embarked upon, the route towards his home, which was in a northerly direction along Vales Road, although at the time he lost control he was travelling in a southerly direction. On one view of it, also, the plaintiff might be said to be still in the course of his duty, analogous to the course of his employment until he returned to the place where he had interrupted his original trip, that is the place where he pulled up at Elliot Street such that one could see his trip from Westfields Tuggerah to his home in Halycon Street, Mannering Park as having resumed its original course. 30 For the purposes of this case it is unnecessary for me to come to a concluded view as to which be the correct view, that is, whether the plaintiff ceased duty when he turned his car around and returned to his originally intended route, or when, having turned his car around, it reached the place at which he interrupted his original route, for in this matter, in either case, the plaintiff had not ceased to be in the course of his duty. 31 Lest the matter go further I should say something about the alternative case of the plaintiff's being on a periodic journey between his place of employment and his place of abode. This case is very different to a case where for example the policeman received a phone call at his home whilst on standby and was required to drive to a crime scene somewhere in the Hunter Valley to carry out his investigations at the crime scene and when those were completed to return to his home. If the plaintiff were on standby he would have been provided with a police vehicle. Consonant with authority, once the plaintiff embarked on such a journey from his home such would not be a periodic journey between a place of abode and place of employment, but would rather be in the course of his employment. 32 In Cunningham v Tobin & Ors trading as the Stringray Café (2001) 21 NSWCCR 524 I discussed circumstances in which a worker travelling "home" from work might be in the course of his employment, between paragraphs 70 and 72. In that matter I rejected the submission that a journey home from a Christmas party was covered by the dictum of Mason CJ, Deane, Dawson and McHugh JJ at [484] in Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473. In that matter I proceeded on the assumption that the journey from the Christmas party to the worker's home was a periodic journey because for other reasons the plaintiff's claim failed because of his ingestion of alcohol at the Christmas party. 33 To me the current case lacks the element of periodicity that is required by s 10 when one considers journeys between the place of employment and the place of abode. One needs to consider the authorities referred to on page 1761 of Mills, Workers Compensation NSW which I will not bother to cite. Here there had clearly been a periodic journey from the plaintiff's place of employment to his place of abode earlier that day, after 4 o'clock. The plaintiff had engaged upon a trip to pick up his daughter. To accept that there was a periodic journey between the place of employment and the place of abode would require me to accept that the plaintiff's wife's vehicle which he was driving amounted to his place of employment, but furthermore would create this difficulty: the plaintiff when he put himself on duty had been on a trip. It seems exceedingly strange that the operation of the Act would turn part of that trip into a periodic journey when there was no intention that it be a periodic journey at the time the plaintiff either set out from his home or that he set out from the penultimate terminus of the journey at Westfields at Tuggerah. 34 A finding that between the Vales Point Power Station turnoff road and the plaintiff's home at Halycon Street, Mannering Park was a periodic journey would turn part of the originally intended journey into a periodic journey contrary to the original intention of the journey itself. In my view that matter is better looked at by saying that from the time the plaintiff interrupted his trip from Westfields Tuggerah to his home, just immediately south of Elliot Street and until the time he returned to that place, he was in the course of his employment. However, thereafter, in the final section between south of Elliot Street and Halycon Street it was not a periodic journey between a place of employment and a place of abode because it lacked the element or periodicity. 35 The final matter to which I ought to have alluded is the operation of s 9A. In that regard I was referred by learned counsel for the plaintiff to my decision in Stanton-Cook v TAFE Commission (1999) 17 NSWCCR 632 and my discussion of the law between paragraphs 39 and 42. 36 If at the time he lost control of the vehicle, the plaintiff was driving a vehicle that belonged to the New South Wales Police Force I doubt that there would have been any submission that the plaintiff's employment was not a substantial contributing factor. One must remember that the underlying scheme of the Workers Compensation Act 1987, although much abused in recent time, is a no-fault scheme. Here, although it was his wife's car that he was driving, the plaintiff was using that car as a tool, implement or apparatus for the execution of his duty. He was using the vehicle to pursue the offender in order to seek to identify the offender's vehicle. That tool, apparatus or implement malfunctioned leading to the motor vehicle accident. However it does not matter whether a worker is using a tool of his own or a tool of his employer at the time of a work injury. As was rightly submitted, if a tree feller is using his own chainsaw or his employer's chainsaw it does not matter which chainsaw is being used, if the tree falls on the tree feller. Equally, it does not matter if a carpenter is injured whilst using a hammer to put nails into timber, whether the hammer belongs to the worker himself or to his employer. The injury in either case is compensable. 37 I accept therefore that when the car which was being used by the plaintiff for the purposes of executing his duty malfunctioned leading to the collision that the plaintiff's employment was still a substantial contributing factor to the occurrence of the injury. There was a causal link between the doing of the job and the injury because the implement being used by the plaintiff in doing the job malfunctioned leading to the collision. 38 HIS HONOUR: I have enquired learned counsel for the parties whether any further reasons for judgment are required and I am told that none is so required. For those reasons I set aside the decision of the Commissioner of Police made on 8 June 2006 and I determine that the suffering by the plaintiff of injuries to which his application of 19 December 2005 was made were caused by his having been hurt on duty on 17 September 2003. I order the defendant to pay the plaintiff's costs. 39 Exhibits to be retained. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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