Compensation Court of New South Wales CITATION : Clark v Commissioner of Police [2002] NSWCC 40 revised - 3/11/2003 Geoffrey Clark PARTIES : v Commissioner of Police MATTER NUMBER(S) : 12247 of 2001 JUDGMENT OF: Neilson J at 1 CATCHWORDS: Appeal :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 02/09/02 EX TEMPORE JUDGMENT DATE : 09/02/2002 FOR APPLICANT: Mr J Trainor instructed by Oates & Smith appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Ms A Stenmark instructed by Court & Legal Services appeared for the respondent. JUDGMENT: 1. This is an appeal pursuant to s 21 of the Police Regulation (Superannuation) Act 1906. The appellant, Senior Constable Geoffrey William Clark, seeks a determination that an injury he sustained whilst playing Rugby League on 20 August 1991 was caused by the appellant's having been hurt on duty. The appellant is currently 37 years of age. He joined the New South Wales Police Service in September 1985. At the time of joining the New South Wales Police Service the appellant was a professional Rugby League player. In 1987 he played for the North Sydney Rugby League Club when he dislocated his right ankle. I infer that he played for North Sydney in 1988 and in 1989 he played in reserve grade for the Balmain Rugby League Club. Thereafter he played no professional football because there were no contracts offered to him. 2. When the appellant was posted to duty it was to general duties at Sydney Central Police Station. He performed general duties until 1988 when he became a plain-clothes constable attached to the detectives' office at Central. In 1989 he joined the Kings Cross detectives again as a plain-clothes constable but in 1990 he was transferred back to Sydney Central detectives' office. In March 1991 the appellant was appointed a detective of police. In 1989 whilst the appellant was playing professional Rugby League for Balmain he joined a police Rugby League football team. The appellant referred to it as the A District team and it has also been referred to as the Sydney District team. 3. From Exhibit C, extracts from the New South Wales Police Service Weekly, it is clear that there is a body known as the New South Wales Police Rugby League Football Association. I infer that that association is a voluntary association formed by members of the New South Wales Police Service. According to Exhibit C, the coach of the Sydney District team is Steve Colman whom the applicant identified as being a sergeant in the licensing branch at Kings Cross. It is clear that there is a regular winter competition run by the New South Wales Police Rugby League Football Association. There would appear to be 16 teams in the competition which had been formed from New South Wales Police Districts, as they were then known, and included are teams from Gosford and Wollongong. The other teams appear to be all metropolitan teams, assuming that "K" district is in fact a metropolitan district. 4. The New South Wales Police Service Weekly is published by the New South Wales Police Department and I infer carries official notices as well as notices relating to policemen generally. An extract from the Police Service Weekly bearing date 15 April 1991 gives the results of the first round of the competition for 1991. It was of course in 1991 that the appellant was injured. The inference I draw from the appellant's evidence is he played a few games in the competition in 1989 and then played throughout the 1990 competition and played in the 1991 competition until he was injured. It would appear from the Police Service Weekly of 15 April 1991 that in 1990 the Sydney District team won the overall competition. The Police Service Weekly for 15 April 1991 contains this matter: Coming Up. Last year's runners up, Eastern Suburbs, were out for revenge when they met Sydney District in this week's grand final rematch at Reg Bartley Oval, Rose Bay, on Thursday 4 April 1991. Sydney District coach, Steve Colman, was confident that last week's close call with Redfern would have shaken out any complacency in his ranks. Easts coach, Mark Cross, is adamant the Wombats won't have to emulate last year's run of 11 wins on the trot to seal their final's berth. The notice then goes on to give the draw for rounds two, three, four and five of the competition, then contains an advertisement for a sports lunch to be held called the "Police Rugby League Sports Lunch" , then contains the following matter: Fixture Cards and Year Book. Fixture cards are fresh off the presses and being distributed this week. [Sic] Another hot item is this year's Yearbook, now on its way to club secretaries. 5. The final item on page 34 of the Police Service Weekly for 15 April 1991 contains details of representative matches against a combined country team and representative matches proposed for 1992 against a touring side from Great Britain and details of a representative tour to New Zealand later in 1991. 6. The first of the extracts before me bears date 25 March 1991. That gives details of a New South Wales Police Rugby League side that had toured in the United Kingdom indicating that the New South Wales Police representative team won all six matches against six different British teams. It then goes on to give details of the first round of the competition to be played in 1991, on Wednesday, 3 April and then gives details of the secretaries for each of the teams, indicating that the secretary of A District was Sergeant Mick Kelso whose telephone number is given; the inference I draw being that it is a work telephone number. Then are given details of the new president and secretary of the New South Wales Police Rugby League Football Association and the details of other office-holders. It appears that the articles relating to the New South Wales Police Rugby League Football Association were mainly inserted in the New South Wales Police Weekly by Craig Regan who was described in one article as being from the "Police Media Unit". In other articles he is described as the "Publicity Officer". The inference I draw is that Mr Regan was working in the police media unit but held an honorary position as publicity officer for the football association. 7. The extracts give results for each round of the Police Rugby League competition as well as journalistic offerings which would do credit to most standard newspapers. It appears that all the teams have names, it appears that the name of the Sydney District team is the Devils, the eastern suburbs team is the Wombats and one team even rejoices in the name of the Camels. It appears that some of the teams have sponsors. For example, the team from the Sutherland District is not inappropriately named the Sharks but their name is often preceded with a matter "GIO", giving a combined total of GIO Sharks; the inference I draw is that the teams have sponsors. Who the sponsor of the Sydney District side is I do not know but it is clear from the appellant's evidence that the sponsor provided jerseys to the Sydney District team. Those jerseys were South Sydney Rugby League Club replica jerseys. 8. At the commencement of each season the applicant paid a registration fee of between $25 and $35. He was provided with shorts and socks but the provenance of the shorts and socks is unknown. They may have been paid for out of the registration fee or they may have been provided by sponsors or a sponsor. There is no evidence to suggest that any part of the apparel of the footballers was provided by the New South Wales Police Service. However it is clear that all members of the Police Rugby League Football Association were members of the New South Wales Police Service and they were organised in teams based on geographical units used by the New South Wales Police Service. 9. As could be expected, the applicant worked rotating shifts. Matches were generally played on Wednesday afternoons and there was training every Monday and Friday afternoon. The appellant, if rostered on duty at the time he was due to play or train, was permitted to attend to playing a match or training even though he was on duty. Whilst on duty and playing or training the applicant received his normal salary. He was not required, on the evidence before me, to work extra time in lieu of the time he spent playing or training but he did at times work time in lieu to finish off work that needed to be done at the end of a particular shift, if that were necessary. The appellant told me that he was encouraged to play by the coach of the team, Sergeant Steve Colman. Whilst playing against the Bankstown team on Tuesday, 20 August 1991 the applicant injured his left knee in the course of being tackled. The applicant played in position of five eighth. 10. The appellant noticed an effusion in the knee as well as extreme pain, eventually sought care from Dr Sam Sorrenti and underwent surgery. He had six to eight weeks off work at the time. He was paid sick leave whilst absent from work during that period. He made no claim for hurt on duty benefits at that time. The appellant has applied for gratuity pursuant to s 12D of the Police Regulation (Superannuation) Act 1906 equivalent to a benefit under s 66 of the Workers Compensation Act 1987. However the Commissioner determined that the appellant's injury of 20 August 1991 was not caused by his having been hurt on duty and it is from that decision that the appellant brings this appeal. 11. In 1990 when the appellant played in the winning Sydney District side he observed the presence of a senior commissioned officer at the presentation ceremony after the match. There are a number of items which indicate that the New South Wales Police Rugby League Football Association competition was encouraged and even promoted by the respondent Commissioner. The first item of promotion is clearly the news about the competition published in the official Police Service Weekly. The second is the fact that the appellant could attend training and matches if he were on duty at no financial cost to himself. The third item of encouragement is obviously the attendance of a senior commissioned officer at the presentation ceremony after the grand final. In the extracts from the Police Service Weekly, which are Exhibit C, there are promotions for other sporting activities. There are a number of advertisements promoting the New South Wales Police Games. There is also a promotion for the New South Wales Police Golf Club, for the New South Wales Police Distance Running Club, for a New South Wales Police soccer team. The final extract from the Police Service Weekly is that for 5 August 1991. There is no mention in that extract of the New South Wales Police Rugby League Football Association but there is material about the New South Wales Police Games of 1991 which were conducted on the weekend of 29 and 30 June 1991 at the Narrabeen Sports Complex. 12. The notice about the police games indicates that competitors were not only from the New South Wales Police but also from the Fire Brigade, the Ambulance Service, Corrective Services, Australian Protective Services, Australian Customs, New South Wales Sheriff's Department and the Australia Federal Police. There is also a statement that the games were "officially opened" by the then Minister for Police and Emergency Services, Mr Ted Pickering. Beneath that is an article headed "Sport, Health and Fitness". That is written by Chief Inspector Ron McDonald who also had the role of chairman of the New South Wales Police Games Council. Statements made in that article relate clearly to the New South Wales Police Games but are not inappropriate to consider in the context of the present appeal. The article is this: Policing is indeed a stressful job and fortunately we have, in this Service, ample opportunities to participate in physical fitness activities and more particularly in healthy, friendly and keen competition against each other and visitors from fire brigade, ambulance, corrective services, Australian Protective Services, customs and similar groups in the annual New South Wales Police Games. The article then goes on to give further details of what is involved in the Police Games and then has this material: Why don't you join in and have some fun while you generate your fitness. You can compete as an individual or team member representing yourself, your district, your patrol or your office. The choice is yours. This is a great way to let off some steam, get fit and develop a wider circle of friends and contacts. The article is preceded by the following precis: Few, if any, people who know anything about stress would argue against the notion that the pursuit of good health, general physical and aerobic fitness is indeed an excellent and positive means of combating the ills and negative forces generated by stressful occupations. 13. Clearly, the article by Chief Inspector McDonald is holding out to police the statement that maintaining physical health by competing in sport is a good means of coping with the stresses of being a policeman or policewoman. One can understand that policemen playing Rugby League would be maintaining their health, their strength and their stamina. The promotion of such qualities is clearly in the interests of the New South Wales Police Service. 14. There are, not surprisingly, a large number of cases involving workers injured whilst playing competitive games and in particular various forms of football. They go back as early as Clancy v The Department of Health [1962] NSWR 2. I will refer only to some of the more recent cases. The first is the decision of his Honour Campbell J, the Chief Judge of this court, in Black v The New South Wales Fire Brigades (1994) 10 NSWCCR 322. In that case a fireman played football for the New South Wales Fire Brigade Rugby League team and was injured when playing in a competition match during a period he was off duty. Sporting activities such as the football match were organised by the fire brigade's sports council, a voluntary body which gained some assistance from the respondent. His Honour the Chief Judge was not satisfied that the worker had sustained injury arising out of or in the course of his employment. The headnote sums up the relevant part of the decision: Whilst it was clear that fitness was an object of the respondent and the respondent took an interest in the activities of the fire brigade sports council and facilitated some of its activities, the worker was not required or expected to engage in the activity. The existence of a football team was initiated by the players and funded by the players and the respondent prohibited playing whilst on duty. The fact that the respondent had previously insured the players for workers compensation which was cancelled by the insurer was a neutral factor. 15. Of course, the current case is very different to Black's case. Here the appellant was not prohibited from playing or training for Rugby League during the course of his work. He was in fact given time off duty to play or to train when that was necessary and was not penalised financially. In other words, he was being paid whilst playing or training if the time for playing or training coincided with one of the appellant's shifts. The playing of Rugby League was also involved in Van Haeften v Caltex Oil (Australia) Proprietary Limited (1995) 12 NSWCCR 250. In that case the worker was injured whilst playing touch football during an annual sporting event at a field called "Caltex Field" which was sponsored by his employer. I interpolate here the Caltex Field was one of the many different names given to what is currently officially known as Toyota Park but which every resident in the Sutherland Shire still refers to as Shark Park. 16. The worker in Van Haeften's case trained for the game in the lunch hour near his workplace over a period of six months. Other members of the team included fellow workers as well as supervisors. The worker was not paid for training or playing. The team were provided with T-shirts bearing the legend "Caltex Balmain". Teams from other oil companies and different departments of Caltex participated in the touch football competition at Caltex Field. Commissioner Butchard drew the inference that in the spirit of competition between various departments and companies the employer encouraged the annual event for the moral and social cohesion of those employees and that implied that the employer derived a benefit from the activity in an indirect way. On review under s 36 of the Compensation Court Act 1984 his Honour Judge Thompson rescinded the award in favour of the worker. On appeal, the Court of Appeal reinstated the worker's award. The judgment of the Court of Appeal of appeal was given by Priestley JA with whom Clarke and Mr Meagher JJA agreed. 17. Priestley JA dealt with the dicta of the High Court in Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473 and with what he referred to comprehensively as the "Henderson Speechley Test", a test derived from the decisions in Henderson v The Commissioner for Railways (WA) (1937) 58 CLR 281 and Humphrey Earl Limited v Speechley (1951) 84 CLR 126. His Honour went on to say this: It seems to me that the overall result of Hatzimanolis is that, as well as giving guidance of a more or less specific kind to courts concerning cases which fall into the 'camp' category, it indicates that there is a wider area of case where, although the Henderson Speechley Test will often still be appropriate there will be cases where it is no longer fully appropriate because of the course of decision in the vast number of cases decided since that test was formulated. One case of this kind is referred to us by the worker's counsel, Clancy v The Department of Public Health [1962] NSWR 2. The headnote of that case says: ... an activity may be within the course of a worker's employment although his participation in it is voluntary and remunerated; the question is whether the worker was doing something which was sufficiently associated with his employment to be incidental to or consequential upon it; and this it may be if the employer derives a benefit, even though it be an intangible benefit, from the activity and if he encourages employees to join in the activity. It may be that the headnote states that the actual ratio of the decision a little more widely than the statement that was made in the joint reasons of Evatt CJ and Wallace J. They said, at 4: … if the activity is not an independent excursion but is reasonably incidental to the worker's employment, it is sufficient to bring the case within the statute. The activity need not be an actual duty but may be merely something which the worker is reasonably expected or authorised to do under the terms of his employment. Questions of fact, degree and circumstances are of course involved; … The headnote summary accurately reflects the facts of the case. The headnote also is quite consistent with the passage in the reasons of the Chief Justice and Wallace J. To the extent that it goes more widely than what was actually said in the decision, it seems to me to be properly derivable from what was said, taken in combination with the facts of the case, and perhaps more importantly, to be directly in the area, in my opinion, to which the High Court judgement was referring when it was talking about 'the current conception of the course of employment as demonstrated by the recent cases' . Counsel for the employer drew our attention to another case in the Full Court of this court decided not long after Clancy. That was Paroz v The Commissioner for Government Transport (1963) 80 WN (NSW) 883 (per Sugerman, Collins and McFarlane JJ). That was a case similar in many ways to Clancy in which the Court came to the opposite conclusion. Sugerman J based his decision directly on what the High Court later called the Henderson Speechley Test. Collins J did so as well, saying incidentally that that test stated, in his opinion, once and for all what the correct test was. We now know that on Hatzimanolis that that is not strictly correct. Collins J also dealt with Clancy. He did not suggest it was wrongly decided but what he referred to as its "exceptional circumstances" brought Clancy "within the course of employment". His reasoning for saying this was expressed as follows (at 890): There was a finding that by (playing the game) he was acting in the interest of his employer as patients, as patients of the hospital benefited in health by the entertainment they received as spectators of the football match, and this consideration was sufficient to permit participation in the match being regarded as an act incident to the workers' employment. When the way in which these two cases was approached is taken into account along with the indications given by the High Court in Hatzimanolis that quite apart from the camp cases, the Henderson Speechley Test no longer accurately covers all the cases, it seems to me that the Commissioner would have been entitled to come to the conclusion which he came to for a more accurate reason than the one he relied upon, that is that there was sufficient connection between the game at the Caltex Field on the Sunday and the worker's employment, to justify the conclusion that he was 'in the course of his employment' when he was injured. Priestley JA then referred to some of the facts of the matter and then said this: The benefit to the company was not only that of morale and the like, which are matters of very real importance to any employer, but also the annual event itself being held at the Caltex Field must have been the occasion of favourable advertisement and publicity for the employer. 18. Van Haeften's case, like the other cases, clearly indicates that what the Court is concerned with is determining whether there is any employer benefit to be derived from the playing in a sporting competition such as a Rugby League match such that the worker can be seen to be in the course of his employment when so playing. The most recent decision of which I am aware on this area is that of Commissioner Grayson in Wyatt v The New South Wales Police Department (1996) 13 NSWCCR 429. The commissioner's findings and award were confirmed by a judge of this court on review. 19. The applicant in Wyatt's case was a civilian employee of the New South Wales Police Department who was participating in netball as part of the New South Wales Police Games. It was whilst so playing that she was injured. Participation in the team was voluntary. The Police Department offered no financial or other assistance in the provision of sports uniforms, equipment or amenities. The participants were required to pay a levy to fund their participation and had to arrange their own transport. The competition took place between overall periods of work. All those indicia speak against compensibility. On the other hand, the Police Department allowed the games' organisers to publish information about the games in the in-service journal. That, no doubt, is the New South Wales Police Service Weekly to which I have earlier made reference in this case. The Police Department reserved the right to nominate and appoint the chairman of the games council management committee from which the Commissioner inferred that it enabled the Police Department to be in a position to influence and to some extent control the affairs of the council. One of the objectives of the games was to promote participation in sports among members of the Police Service "to promote health and fitness amongst such members". That is a very live issue in the current case. 20. The New South Wales Police Department in Wyatt's case facilitated the participation in the games by sympathetic rostering and gave moral support and encouragement to participants. The applicant's injury in Wyatt's case was held to be compensible. The head note adequately sums up the commissioner's reasoning: Many direct benefits are available to any employer who or which fosters the physical and social wellbeing of its employees, which are not negated by the absence of financial or other forms of resource support. In this case, the respondent allowed the Police Games to use its corporate identity and, by inference, to enhance its image as a responsible and caring employer. Through its offices, it encouraged employees to join in the activity. There was sufficient connection between the games and the worker's employment to justify the conclusion that she was in the course of her employment when injured. 21. In this case things are much stronger than they were in Wyatt's case. Here, the appellant was given time off work without financial penalty to train or participate in matches if he was rostered on for the duty at the time of training or competition. Clearly, the appellant was encouraged, as were other members of the New South Wales Police Service, to participate in many forms of sport which promoted their health and wellbeing and enable them to more effectively carry out the duties of their office. 22. In this case there is sufficient evidence of promotion by the employer, there is evidence of the benefit to the Police Service of competing in activities which promote health and fitness just as there was in Wyatt's case. Not only is the promotion of health and fitness important for the New South Wales Police Service but so also is morale, the building of the organisation's strength through team-building and camaraderie. Members of the Police Service competing in the New South Wales Police Rugby League Football Association would clearly meet other members of the service, would interact favourably with them and this would help build team spirit within the Police Service itself. As the article written by Chief Inspector McDonald says the activity promotes a wider circle of friends and contacts within the Police Service which it can accrue to the benefit of the Service. 23. I have no hesitation finding that on 20 August 1991 whilst playing Rugby League in the New South Wales Police Rugby League Football Association competition the applicant was injured in the course of his employment. 24. I have inquired of counsel for the parties if any further reasons for judgement are required, I am told that none is so required. 25. I should add two matters. Firstly, Ms Stenmark, for the respondent, submitted that as it had not been established that at the time the appellant sustained the injury with which I am dealing he was formally on duty and being paid the salary of his office, the injury was not compensable. Implicit in this submission is the assertion that when formally on duty and being paid whilst training and playing the appellant was entitled to compensation, aliter if not formally on duty and being paid. This, in my view, raises a false dichotomy. It is the total activity of competing in the New South Wales Police Rugby League competition that the Police Service encouraged and from which it derived benefit. It did not encourage part of it only or derive a benefit from its part of it only. Secondly, it must be remembered that at the time of the appellant's injury, 20 August 1991, section 9A of the Workers Compensation Act 1987 was not in force. The authorities make it clear that the present type of injury arises "in the course of the employment". They do not establish that it arises "out of the employment". Were section 9A applicable, the result of the current appeal might well be different. 26. For those reasons I set aside that part of the decision of the Commissioner of Police bearing date 15 November 2001 referrable to a left knee injury in 1991 and I determine pursuant to s 12D(4)(a) of the Police Regulation (Superannuation) Act 1906 (as amended) that Senior Constable Geoffrey William Clark's injury to his left knee on 20 August 1991 to which is application dated 15 August 2001 referred was caused by his having been hurt on duty. 27. I order the respondent to pay the applicant's costs, certify additional conference $200. Mr J Trainor instructed by Oates & Smith appeared for the applicant. Ms A Stenmark instructed by Court & Legal Services appeared for the respondent. 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