In this Alert, Special Counsel Brooke Jacobs and Solicitor Hannah Staunton consider the recent decision of NSW Police Force v Faccin [2015] NSWWCCPD in which Deputy President Kevin O’Grady upheld the decision of an Arbitrator of the NSW Workers’ Compensation Commission that a worker was entitled to compensation for injuries suffered during a rugby game.

Facts and relevant law

The worker was employed by the NSW Police Force and suffered injury to his right knee during a rugby game which took place on 24 April 2013.

The worker was invited to participate in the game, which formed part of the 2013 NSW Police Rugby League Competition, via an internal email circulated by a colleague.  

The worker was on a rostered day off and therefore had not sought permission from his superiors to play. When he arrived at the football oval, he was supplied with a team uniform which had the NSW Police Force insignia on it.  The Competition was conducted by the NSW Police Rugby League Association (the Association), which is financially affiliated with the Police Council of Sport and chaired by the Deputy Commissioner for the NSW Police Force.  

The worker lodged an incident notification form with the NSW Police Force as his employer. The relevant insurer declined liability on the basis that the injury was not sustained in the course of employment.  On 15 October 2013, the worker lodged an application to resolve a dispute with the NSW Workers Compensation Commission pursuant to the Workers Compensation Act 1987 (NSW) (the Act).

On 7 August 2014, Arbitrator Elizabeth Beilby determined that the worker suffered an injury to his right knee in the course of his employment and that his employment was a substantial contributing factor to his injury.  She determined that he was entitled to payment of workers’ compensation benefits for the period of his incapacitation for work as a result of the right knee injury.

The NSW Police Force appealed the Arbitrator’s decision.

Decision on appeal

On 9 February 2015, Deputy President Kevin O’Grady dismissed the appeal.

The first issue to be determined on appeal was whether the worker satisfied the definition of ‘injury’ under section 4 of the Act, which involved a consideration of whether the injury occurred in the course of employment. Deputy President O’Grady decided that the evidence supported a finding that the injury arose in the course of employment as the worker’s participation in the football match was encouraged by the NSW Police Force, because:

  1. It accepted the Association and its promotion of sporting activities for workers;
  2. It granted permission to the Association to use the police insignia on uniforms;
  3. It allowed several senior police officers to participate in the Association; and ;
  4. The Association was affiliated with the Police Council of Sport.

The second issue to be determined was whether the worker satisfied section 9A of the Act, or whether employment was a substantial contributing factor to the injury.

Deputy President O’Grady held that the worker’s employment was a substantial contributing factor to the injury and in particular at paragraph 83 observed that:

“...It is well established that a substantial contributing factor involves a causative element...On the present factors the “connection” with employment was, in my view, a causative connection: that the injury occurring during the match was “an incident or state of affairs to which [the worker] was exposed in the course of his employment and to which he would not otherwise have been exposed”. “

Take Away Points

Employers may have exposure to claims for injuries suffered in sporting activities outside of work hours.  In this case, it was relevant that the employer was heavily involved with the association that conducted the sporting activities, the association was chaired by senior staff and that the worker wore the employer’s uniform.  It seems that regard was also had to the “but for” argument, in that the President found that the injury would not have occurred “but for” the worker’s employment and consequent participation in the rugby game.