Anderson and Military Rehabilitation and Compensation Commission

[2006] AATA 409

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 409

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2005/801, Q2006/156

VETERANS’ APPEALS DIVISION		)
Re		TERRANCE ANDERSON

Applicant

And  MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC, Senior Member B J McCabe and Ms M J Carstairs, Member

Date 12 May 2006

Place Brisbane

Decision

In accordance with section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal:

1.    Sets aside the decisions of the respondent dated 17 November 2005 and 15 February 2006;

2.    In substitution therefore  decides that the applicant’s injuries, namely, (a) musculo-ligamentous injury and aggravation of underlying degeneration of the spine; (b) left knee internal derangement with ruptured anterior cruciate tibial plateau fracture and lateral collateral ligament tear requiring reconstruction and tibial osteotomy; (c) fractures of the 4^th and 5^th metacarpals requiring internal fixation; (d) closed head injury; and (e) chest fracture and haemopneumothorax and pulmonary contusion of the right lung, arose out or in the course of the applicant’s employment and that accordingly the Commonwealth is liable to pay compensation to the applicant in respect of those injuries in accordance with the Safety Rehabilitation and Compensation Act 1988;

3.    Orders the respondent to pay the applicant’s costs of these proceedings in accordance with s 67 of the Safety Rehabilitation and Compensation Act.   

.................Signed.................

Deputy President

CATCHWORDS

COMPENSATION – injury arising out of course of employment – travelling between place of education and place of residence – meaning of “place of education”

Administrative Appeals Tribunal Act 1975 s 43

Safety Rehabilitation and Compensation Act 1988    ss 6(1)(b)(v), 67

Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355

Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390

Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328

REASONS FOR DECISION

12 May 2006 Deputy President P E Hack SC, Senior Member B J McCabe and Ms M J Carstairs, Member

introduction

1.This case raises a question of the interpretation of the “journey” provisions of the Safety Rehabilitation and Compensation Act 1988 (the SRCA). In particular, the Tribunal has been asked to decide whether a Commonwealth employee undertaking an approved course of study who was injured as he returned books to a public library could be said to be travelling between a place of education (as that expression is used in s 6(1)(b)(v) of the SRCA) and his home.

2.There are two reviewable decisions, one dated 17 November 2005 and one dated 15 February 2006, because the respondent, by oversight, did not refer to one of the applicant’s conditions in the original denial of liability. But in each case the respondent denied liability on the basis that the words place of education in s 6(1)(b)(v) of the SRCA did not extend to a public library or the after hours chute of a public library.

the background facts

3.At all material times Mr Terrance Anderson was a full-time member of the RAAF holding the rank of Squadron Leader. He enrolled as an external student in a Masters of Aviation Management course at Griffith University during 2002. His studies were sponsored under the Defence Assisted Study Scheme. The operation of the Scheme is outlined in the Defence Instructions (General) issued on 16 March 2001 (Ex 3).

4.During the course of his studies, Mr Anderson was required to undertake research. He says he was unable to locate some of the material he required in the Griffith University library. He accessed the catalogue of the Brisbane City Council library network over the internet and learned that a number of the books he required were held at the Sunnybank Hills public library. We note that Dr. Paul Bates, the Head of the Griffith University School of Aviation, was of the view that external students like the applicant would normally source reference material relevant to their studies from a variety of sources, both on-campus and off-campus and that it would not be unreasonable for an external student to source reference materials from a public library. We accept that that is so.

5.Mr Anderson subsequently attended the Sunnybank Hills public library and borrowed a number of books which the respondent accepts were relevant to his course. After using the books (presumably at his home) he decided to return the books using the “after hours” chute outside the library. On the way home on his motorbike he was involved in a traffic accident and sustained serious Injuries.

6.We will not detail the injuries here as there does not appear to be any dispute as to their nature and extent.  

the legislation

7.The SRCA creates a scheme providing for the compensation and rehabilitation of employees who suffer injuries arising out of or in the course of their employment. Section 6 of the Act extends the concept of what amounts to “arising out of or in the course of” employment in several respects. In particular, s 6(1)(b)(v) provides that an employee’s injury will be treated as having arisen in the course of employment if it was sustained while the employee:

(v)  was travelling between his or her place of work or place of residence and a place of education for the purpose of attending that place in accordance with:

(A)  a condition of his or her employment by the Commonwealth or a licensed corporation; or

(B)  a request or direction of the Commonwealth or a licensed corporation;

or for the purpose of attending that place with the approval of the Commonwealth or the licensed corporation, as the case may be, unless he or she was so travelling while on leave without pay;…

8.Mr Rangiah of Counsel, who appeared for the respondent, conceded the applicant satisfied the “purpose” element in subparagraph (v); the sole issue in dispute was, as he put it, the meaning of place of education as it was used in the subparagraph. The respondent contended that the Sunnybank Hills public library was not a place of education. Mr Main, the advocate who appeared for Mr Anderson, contended that it was.

9.The words of the provision in the context of the Act as a whole provide the starting point of our analysis: Project Blue Sky, Inc v Australian Broadcasting Authority (1998)194 CLR 355 at 381 per McHugh, Gummow, Kirby and Hayne JJ. We are required to have regard to “the context, the general purpose and policy of [the] provision and its consistency and fairness”: Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 per Dixon CJ and cited in Project Blue Sky at 381. We were mindful also of the comments of Fullagar J in Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 referring to the long-established rule that workers’ compensation legislation should be interpreted in such a way that any ambiguity is resolved in favour of the workers in light of the remedial nature of the provisions. In its context in the SRCA there is a degree of ambiguity to the expression place of education.  

10.Mr Rangiah accepted, by reference to the history of the legislation, that there had been a gradual broadening of provisions equivalent to s 6(1)(b)(v). The legislation at an earlier time made reference to a “university, school or other place of education, training or research”. The removal of the words “university” and “school” was accepted as meaning that the legislation envisaged that place of education was not confined to the premises of an institution of learning.

11.Mr Rangiah also conceded that if the applicant had been travelling to the public library for the purpose of engaging in research (a process which we comprehend includes examining the catalogue, selecting and retrieving relevant books and other materials, and reading the books – either at the library or elsewhere after exercising his borrower’s privileges) and had been injured he would have come within the terms of the provision. But Mr Rangiah said that was not what happened on this occasion. He said that one must focus on the purpose of Mr Anderson’s particular trip. He said Mr Anderson’s journey was not for the purpose of education; rather, it was for the purpose of returning books. The return of the books might have been ancillary to the educational process, but Mr Rangiah said, that was not enough to bring it within the words of the section. The educational purpose was spent.

12.     We are unable to agree with that submission.

13.We accept there is a geographic element to the expression; that is, there must be a location. And we accept there is a purposive element to place of education. That is to say, whether a place is a place of education depends not on any inherent character of the location but on the purpose of the attendance or use.  The question that arises is how education is to be regarded.

14.In the context of the legislation, the word education refers to a process of instruction and learning.  That process, certainly at university level, must include research, writing and other work done outside the confines of a classroom or lecture theatre. These days, when more and more students access courses remotely, education is not limited, we think, to physical attendance in classes on a designated campus.  Students communicate with teachers over the internet, download course materials and submit assignments through a website. Classes and workshops might be held around the country in non-traditional locations like hotels and conference centres. Fieldwork and research might be carried on anywhere. It stands to reason that education occurs at every place where students engage with the educational process. This much was properly conceded by Mr Rangiah on behalf of the respondent.

15.Where we are unable to accept the respondent’s argument is in relation to the extent of the education process. The argument, in essence, comes down to the proposition that borrowing the books was part of the education process but returning them was not. If one accepts, as the respondent does, that selecting, retrieving and borrowing books relevant to a course of study from a public library serves to make that library a place of education, it is artificial to examine the return journey i.e., when one completes the borrowing transaction by returning the books, in isolation. The borrowing of books will invariably be an essential and inseparable part of the research (and hence educational) process. There is no justification for concluding that the process of returning those books to the same place affects the character of that place as a place of education.

16.We do not think the situation is any different to the student who is injured while travelling to the campus for the sole purpose of handing in his or her assignment for assessment – a purely physical act which nonetheless must be carried out in order to complete the educational process of researching and writing the paper. It would be surprising if an injured employee were denied relief in such a case given the obvious intentions of the SRCA.

17.It follows that we are of the view Mr Anderson was travelling between a place of education and his residence and, accordingly, his injuries are to be treated as having arisen out of, or in the course of, his employment with the Royal Australian Air Force. The two reviewable decisions should be set aside.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC, Senior Member B J McCabe and Ms M J Carstairs, Member.  

Signed:         .....................................................................................
  Leisa Pendle, Associate

Date of Hearing  4 May 2006
Date of Decision  12 May 2006
Advocate for the Applicant       Mr Rick Main
Counsel for the Respondent     Mr D Rangiah
Solicitor for the Respondent     Australian Government Solicitor