This is a question to be finalised in due course. The first step in that process is the decision in State of Tasmania (Department of Police, Fire & Emergency Management v V  TASCAT 19.
On 24 January 2020, Senior Constable V (whose name was redacted by the Tribunal) was on a camping holiday with his family when he was approached by another camper and asked ‘if anyone knew first aid as a male had collapsed and had hit his head in a camper bus a few camping spots over’. V went to assist. He saw
… approximately eight people outside of a red camper bus and I was advised that the collapsed male was inside the bus.
The people outside the camper bus were stressed and panicking. I said words to the effect of “It’s alright, I’m a Police Officer.” I showed them my badge and said “Don’t get too close.”
He arranged for someone to call an ambulance and entered the caravan saw a person performing CPR. He suggested they move the patient outside of the van to give more room. In the course of manoeuvring the patient:
I felt a sharp pain down the length of my shoulder.
Notwithstanding that my shoulder was in pain, I continued CPR on the male for another 10 minutes before someone was available to take over.
After that Senior Constable V performed what might be considered policing duties. He took the names and address of witnesses, took possession of the deceased’s personal effects and waited until on duty police arrived and conducted a handover to them.
Senior Constable V returned to work on 4 February and reported the incident and injury. His supervising sergeant:
… made some enquiries on his behalf as to whether his shoulder injury from 24 January 2020 would be classed as a work-related injury. She later advised the worker that the injury he had sustained was not considered to be a work-related injury.
The worker said in his statement that he accepted the advice he was given and did not make a workers compensation claim. He has continued to suffer shoulder discomfort.
After significant correspondence between the Police Service, the Police Association and the relevant Workers Compensation insurer, a claim was lodged in October 2021.
The Act provides that once a claim is made there is an obligation to commence compensation payments within 14 days of the claim (Workers Rehabilitation and Compensation Act 1988 (Tas) s 81). Where an insurer/employer thinks that they are not liable to pay compensation, they must refer the matter to the Tasmanian Civil and Administrative Tribunal (TASCAT). The Tribunal is to determine whether the insurer has a ‘reasonably arguable’ case and to make orders about whether compensation has to be paid pending a final determination of the worker’s eligibility for compensation (s 81A).
This case was the tribunals determination under s 81A.
The grounds of dispute are obvious . The obligation to pay compensation only arises if the worker suffers an injury or acquires a disease in the course of their employment (Workers Rehabilitation and Compensation Act 1988 (Tas) s 25(1)). The insurer says that Senior Constable V was on leave, he was not at work. The ‘employer’s case is that the worker has not been accepted at any time since he intervened and rendered assistance … as having ‘returned to duty’ or been ‘recalled to duty’ ().
The employee’s position was (at ):
… he had effectively placed himself back on duty, and everything he was doing at and around the time he was injured was work that was part of, or incidental to, his role as a police officer.
Senior Constable V’s position was summarised in an email from the Police Association. They noted that he identified himself as a police officer. They referred to the Police Manual (at ) and argued that his action in providing CPR was consistent with the role of a police officer to ‘protect life’, that it was consistent with the ‘moral duty’ of a police officer ‘to provide support pending the arrival of medical assistance’. They further argued:
… it is not inconceivable to expect that if a member was recognised as a police officer and failed to provide assistance, that Tasmania Police would respond to a complaint (externally or internally generated) and consider matters arising under the PSA 2003 Code of Conduct…
As for being formally recalled to duty. V’s argument was
The Police Manual at 1.1.4 states as an order the following: “Unless it is not practicable to do so, members shall not work overtime unless authorised by their supervisor.” As [the worker] was responding to an emergency and performing CPR, it was not practicable for him to seek authority.
The insurer also claimed that it was not liable as the worker failed to give notice of the injury and to make a claim for compensation within time limits set by the Act.
With respect to defence that the notice and claim were out of time, that was rejected. Senior Member Jack said ‘on the evidence presently before the Tribunal, there appears to be very little doubt that the worker’s failure to do so was occasioned by one or more ‘reasonable causes’ under s38 that would excuse that failure …’. We need not concern ourself with those issues as they are administrative in nature and not of direct relevance to ‘emergency law’.
With respect to the argument that Senior Constable V was not ‘at work’ and so this was not a work-related injury, Senior Member Jack said:
Each party has put forward an argument that appears, on its face, to have some merit. There are a number of issues raised … that would likely require the Tribunal to hear evidence, make findings of fact, and receive more comprehensive submissions as to legal principles. …
The employer is only required to show that the worker’s claim may be rejected at a final hearing. On the face of the employer’s argument, it has some merit. It does not need to be a strong argument. I accept that it shows there is a reasonable chance the worker might not succeed in a final hearing.
The result was that the Tribunal accepted the employer (or more accurately the employer’s insurer) had a reasonably arguable case that Senior Constable V would not be entitled to workers compensation as this was not a work-related injury. The Tribunal made orders that the insurer was not required to pay weekly compensation or pay for medical or other services pending a final determination of the question on liability (; Workers Rehabilitation and Compensation Act 1988 (Tas) s 81A(3)(c) and (d)).
We will keep a ‘watching brief’ on this matter to report the outcome should it proceed to a final hearing.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Am I right in assuming that, if V was holidaying in a different state, e.g. New South Wales, there would definitely be no claim against the employer on the basis that, state police in general stop being police at the border? I’m assuming there was no administrative arrangement between Tasmania and NSW, no swearing in as special or full constable as is done in border regions.
It would certainly make the argument harder, but there is a difference between being a. police officer and being a constable. Certainly an officer has to be sworn to perform the duties of a constable, but it may be accepted that an officer in another state who did the sort of thing V did was acting as a police officer because you don’t need to be a constable to do CPR or render other assistance. It would be a much harder case to run but not impossible but we’ll know more if and when we see the final judgement.
When you sign on as a Copper, don’t you swear to uphold that duty 24 hours a day, 7 days a week, whether you are on duty or not…..
The bloke felt he had a duty to assist in those circumstances, as I believe most coppers worth their salt would…..
The ole “stuck between a rock and a hrad place” scenario I guess….. I wonder what the Police Command would have said if it was reported by a newspaper that a copper stoood by and didn’t assist…… A clear choice that apparently he was clear to make if he was off duty.
Again there is a difference between the duties of a constable – which is an historic law enforcement office – and all the duties of a modern police officer. A constable is a constable and has ongoing obligations with respect to his or her office so the situation would have been different if he’d been called upon to make an arrest. But, having said that, the issues you’ve raised are also issues V raised so we’ll see what the Tribunal has to say in due course.
This is really interesting as I have been of the understanding we, as police officers, are expected to take action as police officers when off duty, if a situation arises and needs emergency intervention. Similarly, off duty police officers are held to account for any behaviour conducted while not on duty, at a level that would be considered as appropriate for a police officer. This situation arises for any offences or criminal allegations and subsequent disciplinary action by the commissioner.
Will be interested in the outcome of this. And I daresay off duty officers will be reluctant to assist in that role if they aren’t supported.
Kind regards Jennie
Jennie Richardson Southern Regional Prosecution Services Coroner’s Associate Phone: (03) 6173 2584?