In this Alert, Special Counsel Brooke Jacobs and Solicitor
Hannah Staunton consider the recent decision of NSW Police
Force v Faccin  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
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
The NSW Police Force appealed the Arbitrator's decision.
Decision on appeal
On 9 February 2015, Deputy President Kevin O'Grady dismissed
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,
It accepted the Association and its promotion of sporting
activities for workers;
It granted permission to the Association to use the police
insignia on uniforms;
It allowed several senior police officers to participate in the
Association; and ;
The Association was affiliated with the Police Council of
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.
Contractors and principals should ensure they have appropriate insurance coverage instead of relying on indemnity clauses.
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