Allen v Hudson Global (Aust) Pty Limited
[2006] NSWWCCPD 360
•21 December 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Allen v Hudson Global (Aust) Pty Limited [2006] NSWWCCPD 360
APPELLANT: Mark John Allen
RESPONDENT: Hudson Global (Aust) Pty Limited
INSURER:Vero Workers Compensation (NSW) Ltd
FILE NUMBER: WCC6960-05
DATE OF ARBITRATOR’S DECISION: 30 September 2005
DATE OF APPEAL DECISION: 21 December 2006
SUBJECT MATTER OF DECISION: Sections 4, 9A and 11 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Robert Harrington
HEARING:On the papers
REPRESENTATION: Appellant: Keddies Litigation Lawyers
Respondent: Hunt and Hunt Lawyers
ORDERS MADE ON APPEAL: 1.The decision of the Arbitrator dated 30 September 2005 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
2.The Respondent is to pay the Appellant’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 21 October 2005 Mark John Allen (‘Mr Allen’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 30 September 2005.
The Respondent to the Appeal is Hudson Global (Aust) Pty Limited (‘Hudson’).
Mr Allen is 33 years of age. He has a degree in economics and commerce and works as a business analyst.
In 1999 he was employed by Hudson as a payroll manager. His employment activities were performed in Sydney.
In October 1999 Hudson had arranged for its employees to travel to Melbourne to attend a conference.
Whilst attending the conference Mr Allen noted the onset of back pain.
The back pain became so severe that he was unable to return to Sydney with his colleagues when the conference was completed.
Mr Allen was subsequently diagnosed as suffering from a significant disc protrusion at the L4/5 level. Dr T. Steel (neurosurgeon) operated on Mr Allen’s back on 6 December 1999; an L4/5 microdiscectomy was performed. The right L5 nerve root was found tightly compressed by a sequestrated disc fragment.
Mr Allen commenced proceedings in the Commission on 12 May 2005 claiming lump sum compensation and medical hospital and related expenses in respect of his injury.
Mr Allen’s claim was heard before a Commission Arbitrator on 19 August 2005 and the Arbitrator delivered his decision on 30 September 2005. Mr Allen was unsuccessful. It is against the Arbitrator’s decision that Mr Allen now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 30 September 2005 records the Arbitrator’s orders as follows:
1. Award and determination in favour of the Respondent.
2. No order as to costs.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
· whether Mr Allen’s injury was an injury ‘arising out of or in the course of his
employment’ with Hudson. (Hatzimanolis issue);
· whether Mr Allen’s employment was a substantial contributing factor to his
Injury (9A issue), and
· whether Mr Allen’s injury occurred during an ordinary recess or authorised
absence (recess issue).
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the matter is one appropriate to be dealt with ‘on the papers’ that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount at issue on appeal satisfies the requirements of section 352(2), and the appeal was filed within the time limits prescribed by section 352(4) of the 1998 Act.
Leave to appeal is granted to Mr Allen.
ABSENCE OF TRANSCRIPT
Mr Allen gave evidence and was cross-examined before the Arbitrator. Due to a Commission error there is no transcript of Mr Allen’s evidence. On appeal, this matter was raised in a teleconference with the parties. The parties agreed that the Arbitrator had correctly and sufficiently summarised the evidence given by Mr Allen, in his decision. The parties further agreed that the appeal could proceed ‘on the papers’ notwithstanding the lack of transcript. I have ultimately come to the conclusion that there are errors in Arbitrator’s determination. Although there is no dispute between the parties in respect of a number of facts my review of the Arbitrator’s decision would require a redetermination of a number of the facts upon which the decision rests. In the absence of a transcript of the evidence I am unable, with a degree of certainty, to redetermine all of the relevant facts.
EVIDENCE AND SUBMISSIONS
There is now little dispute between the parties as to the salient facts. Most, but not all, of the relevant facts can be distilled from the Arbitrator’s decision:
· Mr Allen was employed by Hudson as a payroll manager;
· Mr Allen, along with a number of other fellow employees, in October 1999 travelled from Sydney to Melbourne in order to attend a work conference;
· the full extent of Mr Allen’s employer’s involvement in the conference is not made clear by the judgment. In the absence of a transcript it not possible to reach conclusions or draw inferences as to the extent of the employer’s involvement;
· the conference was held over “a number of days” in Melbourne. It is not possible from the judgment or the evidence, in the absence of the transcript, to determine the structure of the conference, for example, whether there was a formal program setting out starting and finishing times for lectures/seminars, morning and afternoon two breaks lunch and organise social activities;
· on 28 of October 1999 Mr Allen attended the formal conference activities during the day and on completion of the afternoon conference activities. The next conference activity was a formal dinner dance to be held that evening. Between the completion of the afternoon conference activity and the dinner dance Mr Allen was free to engage in his own activities;
· Mr Allen after the completion of the afternoon conference activities had his hair cut and, together with a number of his colleagues, attended premises known as Timezone. Timezone is, as I understand it, an amusement centre providing computer games to the public;
· whilst Mr Allen was attending the conference in Melbourne he sustained damage to the L4/5 disc. Mr Allen sustained an acute L4/5 disc prolapse, which caused severe right L5 radiculopathy, and
· Dr T. Steel (neurosurgeon) operated on Mr Allen’s back on 6 December
1999.
The following finding of fact, was contested before the Arbitrator, however the parties have not attempted to contest the Arbitrator’s finding in respect of this fact on appeal:
· Mr Allen sustained his back injury whilst he was in attendance at Timezone on 28
October 1999.
LEGISLATIVE FRAMEWORK
Before dealing with the parties’ submissions it is necessary to reproduce the relevant legislative framework.
Section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’) provides: -
“4 In this Act-
Injury-
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c) does not include (except in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act1982 applies) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 9A of the 1987 Act provides:
“No compensation payable unless employment substantial contributing factor to injury
9A (1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Section 11 of the 1987 Act provides:
“Recess claims
11 If a worker on any day on which the worker has attended at the worker’s place of employment pursuant to the worker’s contract of service or training contract:
(a) is temporarily absent from that place on that day during any ordinary recess or authorised absence,
(b) does not during that absence voluntarily subject himself or herself to any abnormal risk of injury, and
(c) receives a personal injury during that absence,
the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.”
DISCUSSION AND FINDINGS
Hatzimanolis Issue
Mr Allen submits on appeal, that the Arbitrator, having found that he sustained injury whilst in attendance at Timezone (in accordance with the principles of Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473 (‘Hatzimanolis’)), should have found that the injury was a compensable injury. The injury, Mr Allen submits, having occurred during an interval in an overall period or episode of work activity.
Hudson submits on appeal, that as there was no inducement or encouragement of Mr Allen by it to attend Timezone, Mr Allen’s injury did not fall within the definition of injury in section 4 of 1987 Act, and it is therefore not an injury, which is compensable.
In respect of this issue the Arbitrator said the following [paragraph 55]:
“It is noted that the Applicant states that he attended Timezone with other attendees of the conference however, unlike for instance the picnic in Hatzimanolis, there is here no or no sufficient evidence to satisfy me that the decision to attend Timezone was either sanctioned, encouraged, organised, or arranged by or on behalf of anyone acting in connection with their employment with the Respondent, or that the Respondent would obtain any benefit from the Applicant’s attendance there. Nor is there any evidence to indicate that the particular Timezone establishment was special or particular to Melbourne such that the visit there by the Applicant was a natural incidence of his visit to Melbourne for the work related purpose. On balance, I am not satisfied that the Applicant’s injury was one arising out of or in the course of his employment.”
I am of the opinion that there are three errors in respect of the Arbitrator’s analysis of the principles formulated by the High Court in Hatzimanolis, they are:
1.that, for an injury to be compensable, there is a requirement that the employer must have specifically sanctioned the activity engaged in by an employee, during an interval in an overall period of work activity, which caused his injury;
2.that to be compensible, under the Hatzimanolis principles, the activity from which the injury results must be of some benefit to the employer, and
3.that there must be something unusual or special about the activity, such that it would be inferred that the employer would have expected Mr Allen to engage in that activity. For example at a conference held in Paris it would be inferred that the employer would expect the delegates to visit the Eiffel Tower.
In order to review the Arbitrator’s determinations under the Hatzimanolis principles it is necessary to consider the High Court decision in Hatzimanolis and various decisions of the Court of Appeal thereafter. The Court of Appeal in Inverell Shire Council v Lewis (1992) 8 NSW CCR 562 (‘Lewis’) was called upon, very shortly after the decision of Hatzimanolis, to consider the Hatzimanolis principles. Handley JA, with respect, provided a useful summary of the decision and its historical significance, he said [at page 565]:
“The liability of an employer for injury sustained by a worker ‘in the course of’ his or her employment depends on the existence of a temporal relationship between the employment and the injury. See Kavanagh v The Commonwealth (1960) 103 CLR 547 at 556-557, 559, 572, and 575; and Bill Williams Pty Ltd v Williams (1972) 122 CLR 146 at 153, 154-5, 158. There is no requirement in such a case that the employment should have any causal connection with the injury.
In a series of decisions culminating in Hatzimanolis v ANI the High Court has expounded and developed the test originally enunciated by Dixon J in Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22 at 29 that in order to arise in the course of employment the injury ‘must happen while the employee is doing something which is part of or is incidental to his service.’ In Hatzimanolis Mason CJ, Deane, Dawson and McHugh JJ in a joint judgment reviewed the earlier High Court decisions and said at 482:
‘…the rational development of this area of law requires a reformulation of the principles which determine whether an injury occurring between periods of actual work is within the course of the employment…’
The new principle was formulated at 483 as follows:
‘... there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work ... where ... the whole period of the undertaking constitutes an overall period or episode of work. Where for example ... an employee is required to go to a remote place and live in accommodation provided by his or her employer ... until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work. An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location ...’”
His Honour continued [at page 565]:
“There was no dispute that the worker’s attendance at the training course was part of his employment for relevant purposes. His injuries were sustained during an interval between periods of training while he was in the caravan park where he was being temporarily housed by the employer. The joint judgment in Hatzimanolis includes a further statement of principle at 484:
‘... An interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment.’”
As in the decision of Lewis in Mr Allen’s claim there was no dispute that his attendance at the conference/training course in Melbourne was part of his employment for relevant purposes. His injury whilst in attendance at Timezone, as found by the Arbitrator, was sustained during an interval between a training session and the formal dinner dance arranged as part of the conference. Further there is no issue that the employer induced and encouraged Mr Allen to attend the conference, and thereby to be at a particular ‘place’.
The major issue, in my opinion, which needs to be determined in order to apply the Hatzimanolis principles to the facts of this case is to define the bound of ‘place’ in the context of the ‘general nature, terms and conditions’ of Mr Allen’s employment at the relevant time. If place in the present context is limited to, for example, the conference venue and Mr Allen’s hotel then it would be incumbent upon Mr Allen to establish that at least in a general sense, his employer authorised, induced or encouraged him to spend his leisure time at Timezone.
The general nature, terms and conditions of Mr Allen’s employment at the relevant time was to attend over a number of days, a conference in Melbourne. I believe it is a reasonable inference that Melbourne was chosen as the venue for the conference because of, inter alia, the significant fringe benefits, the city of Melbourne would offer to the delegates. Those benefits would include a diverse and extensive service industry including: restaurants, theatres and other service establishments such as Timezone. The natural beauty of Melbourne, such as bicycle riding or jogging along the Yarra River is another reason why corporations would choose it as a venue for conferences.
I am of the opinion in the present circumstances the ‘place’ that Mr Allen’s employer has “expressly or impliedly induced or encouraged” him to be in, in order to attend the conference is not limited to the conference centre, and his hotel, but includes the general services and facilities that Melbourne has to offer including in this instance, a leisure activity, such as playing computer games, during free time between conference activities.
I draw some assistance from the decision in Lewis. The facts of that case were that, the worker normally lived at Ashford near Inverell. The employer arranged temporary accommodation for the worker at the caravan park for the duration of the course. Another apprentice employed by the Council who was attending the same course was also accommodated at this caravan park. Apart from his obligation to attend the course the worker was free to spend his time as he chose. On the evening of 23 November1988 the worker and other young people of both sexes who were staying at the caravan park were engaged in various social activities. After a barbecue meal during which drink was consumed, the group left the caravan park to go swimming and further alcohol was consumed. Later further food was obtained and the group then adjourned to the caravan of a Miss Davis for the purpose of having some coffee. About 1am the brother of Miss Davis approached her caravan and demanded that the young men withdraw from the caravan. An angry scene followed which climaxed when Mr Davis began firing a rifle he was carrying. The worker was wounded four times, and as a result of his injuries became totally incapacitated.
Handley JA in response to a submission by senior counsel for the employer that the worker was not in the course of employment, but attending a party at the time that he sustained his injuries said the following [page 566]:
“Neither the employer nor the Training School attempted to occupy the time of the worker and his fellow apprentice in the evenings. The course lasted nine weeks with thirty eight hours of training and practical work each week. The worker and his fellow apprentice were permitted to return home in the Council's motor vehicle on four weekends during the course. The employer must have contemplated that the worker would spend his other weekends and his free time in the evenings in and around the caravan park in the company of other persons of his own age. Social visits to other caravans in the park such as that occupied by Miss Davis were a reasonable and foreseeable incident of his residence in the park.”
Similarly in the present case the use by Mr Allen of the extensive service industries available in Melbourne during the course of the conference was a reasonable and foreseeable incident of his residence in Melbourne whilst attending the conference.
McCurry v Lamb (1992) 8 NSWCCR 556 (‘Lamb’) was a case decided on the same day as Lewis. The worker in that case was a shearer, who was shot whilst sleeping in the “jillaroos” quarters. The worker’s sleeping quarters were the shearer’s quarters however; on the night that he was shot by a deranged fellow shearer he, having consumed beer, went with a female rouseabout and had sex with her before falling asleep in her room. It was whilst he was asleep that he was shot. Relevantly Handley JA said the following in respect of the facts of that case [page 559]:
“This appeal and the appeal in Inverell Shire Council v Lewis (1992) 8 NSWCCR 562 were argued the same day before this Court. In my opinion, for the reasons given in Inverell Shire Council v Lewis (also delivered today), the worker sustained his injuries ‘at a particular place’, namely the camp, where the employer had induced or encouraged him to stay, and while he was doing something that was reasonably incidental to his temporary residence there, namely sleeping. No question of gross misconduct arises and the fact that the worker’s injuries were caused by the deliberate and criminal conduct of a fellow employee does not affect his right to compensation. Accordingly the worker received his injuries in the course of his employment.
This result may seem to some anomalous or even bizarre. The worker received his catastrophic injuries as the result of the actions of a deranged fellow shearer when and because he was in bed with a fellow employee in the rouseabouts’ quarters. Another young man on or in the next bed, who was not an employee, was killed. Had that young man sustained similar injuries and lived he would only have been entitled to the invalid pension. The risk of injury that materialised to the worker occurred after working hours and because of what he and others did in their own time. The only involvement of the employer was that the female rouseabouts and Websdale were also employees, the employer knew of the worker’s sexual relationship with one of the rouseabouts and the shooting occurred in the camp.”
Hatzimanolis and the subsequent decisions of the Court of Appeal which I have referred to establish, in my opinion, that if the injury occurs at the ‘particular place’ that the employer has authorised encouraged or permitted the employee to spend his time, in determining whether the injury is, compensable or non-compensable lies not so much in the employer’s attitude to the way the interval between the period of actual work was spent but in the characterisation of the period or periods of work. So in the present case, absent gross misconduct, Mr Allen’s injury having occurred at a particular place (Melbourne) and he having been encouraged or the permitted to be at that particular place by his employer, the injury is an injury in the course of employment, whether the employer sanctioned the actual activity that caused injury or not.
If I am wrong in the above analysis I am of the opinion that in any event the employer in the present case, as Hanley JA determined in Lewis, must have known the conference activities would not have occupied all of the employee’s time whilst in Melbourne and that the employees would make use of the vast service industry, which included Timezone, that Melbourne provided. In that sense, the activity or activities which caused Mr Allen’s injury were permitted or authorised and in the wider sense encouraged by his employer.
I am therefore of the opinion that Mr Allen’s back injury is an injury which has arisen in the course of his employment with Hudson.
Section 9A Issue
The Arbitrator, having decided that, Mr Allen was not in the course of his employment when he sustained his injury did not have to consider the application of section 9A of the 1987 Act to the facts as he found them.
The Arbitrator did however, in a concise way consider the issues under section 9A. In respect of this issue he included [paragraph 59]:
“Although I am satisfied the injury occurred whilst the Applicant was at Timezone in Melbourne the injury may have been spontaneous. In report dated 23 May 2005 Dr Minter comments “You will note that disc prolapse occurs commonly in the general population and with his history of long term low back pain, causing him to seek chiropractic treatment on a regular basis, it is quite possible that he would have had the same type of clinical presentation without attending this conference as he did attending it. In other words, particularly as there has not been a traumatic episode, I could not define a specific intermittent relationship between his work place and the complaints” In the circumstances of this matter, had it been necessary for a finding with respect to whether employment was a substantial contributing factor I expect, on the evidence available, that I could not be satisfied that employment was a substantial contributing factor to the injury” (emphasis added).
Before addressing the Arbitrator’s determination in respect of section 9A it is necessary to briefly examine his findings in relation to injury, and the medical evidence.
The Arbitrator’s finding in relation to injury, or at least the timing of the injury was as recorded in paragraph 52 of his decision: “Having regard to the Applicant’s written statement and oral evidence, I am satisfied the first onset of pain and the injury event was occasioned during the period whilst the Applicant was engaged in activities at Timeszone” (emphasis added).
There is no dispute on the medical evidence as to the pathology of Mr Allen’s back injury. The pathology is best summarised by Dr Michael O’Sullivan (orthopaedic surgeon), who examined Mr Allen on behalf of his employer. Dr O’Sullivan states under ‘Opinion’:
“Mr Allen sustained an injury to his lower back, whilst at a conference in Melbourne. This resulted in acute L4- 5 disc prolapse which caused severe L5 radiculopathy. This has been appropriately treated with L4-5 microdiscectomy and he has had a very good result following surgery.”
The doctor went on to say, under ‘Attribution’ the following:
“Mr Allen’s problems with his back started whilst he was on a work related trip to Melbourne.”
The Arbitrator records in his decision at least part of the history of activity that Mr Allen engaged in at Timezone. At paragraph 18 he records following: -
“… In his oral testimony he also made specific reference to playing a video display horse race game that involved the game equipment being straddled in some fashion.”
The Arbitrator continued at paragraph 19 of his decision:
“In answer to Mr Catsano’s question, “Why did you tell Dr Conrad that you went to Timezone?” the Applicant replied, “To let him know that it is when I first felt pain.” In giving evidence of the Timezone horse race video game the Applicant described it as a fairly physical experience-that the machine had to be “ridden”-“you had to actually ride it like a jockey” to “activate the horse to get the speed up.”
The Arbitrator’s finding that Mr Allen sustained his injury whilst he was at Timezone, together with the unanimous medical evidence that Mr Allen suffered a significant L4/5 disc prolapse with radiculopathy leads to the conclusion, in my opinion, that the most likely cause of his injury was the riding of the “horse race video game”. Although the Arbitrator did not come to any concluded view in this respect, it is clear in my opinion, because of his specific recording of the horse racing, video game activity in his decision, that this activity was in the forefront of his mind, as the probable cause of Mr Allen’s injury.
Because the Arbitrator found against Mr Allen with respect of the Hatzimanolis issue there was no need for him to reach a concluded view with respect to the 9A issue. The Arbitrator had he had to decide the 9A issue may have, on the evidence before him, made a specific finding in relation to the mechanism of injury.
Having identified an error in the Arbitrator’s decision it is incumbent on me, if possible, to determine all the issues between the parties that would include a determination of the section 9A issue. In order to determine the section 9A issue I would first need to determine the factual issue as to the mechanism of Mr Allen’s injury. As I have said above, I am inclined to the view Mr Allen’s injury was caused by riding the horse riding video game. The difficulty I have in coming to a concluded view is that (because of a Commission error) there is no transcript of evidence. I have come to the conclusion that without a transcript of his evidence I am unable to determine the section 9A issue.
The determination of the exact mechanism of the injury will not of itself determine the section 9A issue. It is however a pre-requisite, in my opinion to the determination. In this case, there are two issues which must be determined under section 9A of the 1998 Act. First is the ‘medical issue’ that is whether the L4/5 disc prolapse Mr Allen sustained whilst at Timezone could have spontaneously occurred in any event and secondly, the ‘lay issue’ whether the activities at Timezone have a sufficient connection to his employment.
I am therefore of the opinion that the matter must be referred to a different Arbitrator for determination afresh. I am also of the opinion that this is necessary as I am of the opinion that the Arbitrator’s determination in respect of the ‘recess issue’ as discussed below, was erroneous.
Recess Issue
The Arbitrator’s decision contains two relevant findings concerning the ‘recess issue’. The first was that the period in which Mr Allen sustained his injury was a period more akin to an interval between two discreet shifts of work rather than a break in an overall period of work. The second finding was that the interval between conference seminar and the dinner dance was not an “ordinary recess” or “authorised absence”.
I have already found that under the Hatzimanolis principles the whole of the time that Mr Allen was in attendance at the conference was an “overall period or episode of work”. It follows therefore that I do not agree with the Arbitrator’s decision that the injury occurred between two discrete episodes of work.
I am of the view, based on the limited information, that the correct interpretation of the conference activities is that when Mr Allen and other employees of Hudson were attending the formal conference activities such as seminars/lectures or the dinner dance they were for the purposes of section 11 attending their employer’s temporary workplace. Further, given that the employer had arranged the conference and the activities in another state the periods when Mr Allen and fellow employees were not attending formal activity such as the lectures/seminars or dinner dance, were periods where Hudson had authorised employees to be away from the work activities in an overall period of employment. If this assessment is correct then Mr Allen’s injuries would be subject to the dictates of section 11 of the 1987 Act. In the absence of the transcript of evidence of the details and factual circumstances pertaining to the conference I am unable to reach a conclusion with respect to the applicability of section 11 of the 1987 Act. It may be possible to infer many of the facts from the judgment and the submissions of the parties; however, I formed the view that to infer so many important facts would not serve the interest of justice.
The fact that an activity can be categorised as an activity in the course of employment does not preclude the activity from being covered by another provision of the 1987 Act. For example many injuries that are compensable under the journey provisions are also compensable because the injury arises out of or in the course of employment. This often happens when an employee’s means of transport, to his home after a days work is the work vehicle with the equipment in it so that he can take the equipment to a different worksite the next day. If on the way home, the employee is injured he would be entitled to claim compensation either under the journey provisions of the 1987 Act or alternatively to claim, compensation on the basis, the injury arose out of his employment under section 4 of the 1987 Act.
In Hatzimanolis, based on the facts accepted by the High Court, Mr Hatzimanolis could have presented his case in the alternative under section 11 of the 1987 Act. His employer having provided the vehicle for the excursion, and given permission to go on the excursion, arguably, the injury, therefore occurred during an authorised absence from his work activities. This, at the time, would not have been in Mr Hatzimanolis’ interest as section 9A was not part of the 1987 Act at that time.
The ultimate result is that I have identified a number of errors in the Arbitrator’s decision that ultimately require a re-determination of factual issues. The lack of transcript prevents me fairly re-determining these issues, as such, I have no choice other than to remit the matter to another Arbitrator to determine the matter afresh.
DECISION
The decision of the Arbitrator dated 30 September 2005 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons:
COSTS
The Respondent (Hudson) to pay the Appellant’s (Mr Allen) costs of the appeal.
Robert Harrington
Acting Deputy President
21 December 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBERT HARRINGTON, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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