When the Association sued for sick pay

Continuing our centenary series, we revisit 1924. As a fledgling union of around 2,330 members, the Police Association embarked on an extraordinary challenge of the NSWPF’s definition of “injured on duty” in the Supreme Court, after members were unfairly denied pay.

Back, then, Police Regulations deemed a Police officer was injured in the execution of his duty:

(a) only when the injury was received when performing some Police duty or when on some Police duty attended with risk such as making an arrest;

(b) or the injury was received in circumstances specific to police duties, as distinguished from other jobs.

These rules were strictly interpreted by the Crown Solicitor.

Some injured members were denied their proper wages after he determined their circumstances were no different from ordinary people.

A case in point was that of Sergeant H S Robertson of Wallerawang. In 1920, he went on mounted escort duty to Lithgow during the visit of General William Birdwood, Commander of the AIF in World War 1.

Returning home, the Sergeant’s 20-year-old horse stumbled and he was thrown on to the road. While on the ground, a car ran over him causing numerous injuries, including a broken arm and three broken ribs.

Sergeant Robertson was off duty for several months during which time the Department paid him as being injured on duty. Later, the Sergeant brought an action against the driver of the car. He was awarded £500 in damages, quite a substantial sum.

Two years later the Crown Solicitor determined that Sgt Robertson’s injuries were not sustained on duty according to Police Regulations.

He was asked to refund £63/6/9 which had been “overpaid” by the Police Department.

The Sergeant paid the money under protest. He then took the case to his union.

A man of great determination, Sergeant Robertson was allowed to address the Executive at a meeting on 2 October 1923. Presenting the facts of his matter, the Sergeant asked the Association to finance an appeal for the “overpayment” to be returned.

The Executive debated his request at length. Since any member unfortunate enough to be “injured on duty” could be financially penalised, there was widespread support for a test case.

Particularly as Association efforts to lobby for fairer regulations had not succeeded.

However, the Executive also wanted to be “careful with funds,” according to the minutes of that meeting. It was decided to look around for the best candidate for a test case.

They found it in the case of Constable Webb, a traffic officer and father of five, whose post-injury pay had been reduced to a mere pittance.

CONSTABLE WEBB’S CLAIM

On 15 July 1923, Constable William James Webb had been performing traffic duty on Parramatta Road in Lidcombe. While trying to overtake an Indian motorcycle to obtain its licence plate number, the Constable was struck by a car and badly injured. His leg was broken in five places below the knee and he suffered concussion.

Constable Webb received sick pay (88 days full pay and 30 days half pay). However, the Crown Solicitor determined he didn’t qualify as being injured on duty, which would have allowed his wages to continue after the initial 120 days.

The Crown Solicitor’s view was the accident could have happened to any ordinary citizen and the Police Department accepted his opinion. Although Constable Webb returned to duty, he was unable to continue working.

With no claim on the Department under the Workmen’s Compensation Act, he was only entitled to a small rental allowance. He and his young family were in financial distress which had prompted the constable’s workmates to help whenever possible.

DAILY DANGERS AND RISKS

The Association’s legal advisers stated that the case of Constable Webb had a good chance of success and so they decided to proceed with it.

Among the membership, there was great interest in Webb v. Kessell, (the nominal defendant) being sued for £115/4/- wages due to Constable Webb.

The case was heard by Justice Ferguson on 25 and 26 September 1924 with no jury. Mr Lamb, KC, with Mr N McGhie appeared for Webb, under the direction of the Police Association, and Mr Wilfred Blacket KC, with Mr. K. W. Street, appeared for the Crown.

Mr Lamb KC mounted a watertight case for the plaintiff. Giving precedents from Britain, he argued that police were entitled to journey claims.

He highlighted the dangers and risks Police encountered daily, and even hourly, when pursuing suspects, unlike ordinary people.

He also commented on the injustice of resorting to the Court for payment of Constable Webb’s wages rather than being paid as a matter of course.

For its part, the government pleaded statutory defence and the defence of not guilty.

Mr Blacket also acknowledged there was no question of negligence on the part of Constable Webb.

The Daily Examiner Grafton report on the outcome of Constable Webb’s case Courtesy of the National Library of Australia

After hearing the two opening arguments, Justice Ferguson said he did not wish to hear Mr Lamb’s rebuttal. Not only did he reverse the Crown Solicitor’s ruling in Constable Webb’s case, but he also removed any doubt about the definition of “injured on duty”.

His honour’s decision stated, “The plaintiff was injured while on duty. His special duty was patrol duty, and, while he was engaged in carrying out that duty on the Parramatta Road, he received serious injuries from the collision with a motor car, and during the period which is covered by this claim he was absent from duty as the result of those injuries.”

The judge concluded, “I am quite satisfied that he was on duty, discharging his duty, and that it was in the course of discharging that duty that he was injured. That, to use the words of the regulation, the case was a case of ‘injury in the execution of duty’. I think therefore that the plaintiff is entitled to a verdict.”

One can only imagine the sense of vindication and relief Constable Webb and all Association members would have felt at this decision.

JUSTICE IS DONE

At the Association Conference in 1925, Webb v Kessell was described as “a signal victory”.

“It was truly a common cause demanding a fight for the right. In his judgement—an admirable and unequivocal one—the learned Judge made it clear that the Departmental decision had been based on an unethical and illegal reading of the regulations under which the Police are governed.

A decision was given for the full amount claimed by Webb, and this decision will stand as a guide for the future,” the Police News journal reported.

Later, the Association pursued the cases of other members including Sgt Robertson of Wallerawang mentioned previously, who was refunded the so-called “overpayment”.

Another member Sgt R J Ferguson had broken his foot on night duty after getting it trapped in tramlines at Waverley. He, too, received the correct pay.

In a letter to the Association Sgt Ferguson said, “Every credit must be given to our Association…for sticking to its guns although advised by one solicitor that I had no case to go before a judge. I am sure that success would not have eventuated had it not been for the Association.”

Following this legal victory, Association officials advocated strongly for the relevant Police Regulations to be changed.

This led to the definition of “injured on duty” being repealed and a new clause was inserted. It provided full pay to police absent from duty due to being injured on duty and the Commissioner decided if a member had been injured on duty, instead of the Solicitor General.

Sadly, Constable Webb never recovered from his injuries. His health continued to deteriorate and he was discharged medically unfit in 1931.

He died on 3 June 1940 as a result of staphylococcal pneumonia and is remembered on the NSW Police Honour Roll.

ECHOES OF THE PAST

Over its 100-year history, there have been numerous occasions where the Association intervened to safeguard the rights of members injured on duty both physically and mentally. This role continues to date.

On 21 August 2019, the Association filed an urgent Industrial Dispute in the NSW Industrial Relations Commission to prevent the threatened dismissal of two officers who had been informed they would be medically retired on 22 August 2019.

Both members were keen to return to work in their respective roles and the Association sought an Interim Order preventing the Commissioner of Police from dismissing (medically retire) either one until the dispute proceedings were finalised.

The application for Interim Orders was heard by Commissioner Sloan of the IRC on 1 October.

In his decision, Commissioner Sloan ordered that neither officer be dismissed until the determination of the proceedings or further Order of the Commission.

He recommended the parties confer as to the possibility of a graduated return to work, consistent with available medical evidence.

A copy of the decision Police Association of New South Wales v Commissioner of Police [2019] NSWIRComm 1076 can be accessed from the IRC website.

After months of litigation and sustained advocacy in the IRC, supported by medical evidence confirming they were fit to return to work, our members are currently undertaking a return to work with a view to returning to full duties.

This article was first published in Police News journal, June 2020