FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND GAGELER JJ
COMCARE APPELLANT
AND
PVYW RESPONDENT
Comcare v PVYW
[2013] HCA 41
30 October 2013
S98/2013
ORDER
1.Appeal allowed.
2.Set aside the orders, other than the costs order, of the Full Court of the Federal Court of Australia made on 13 December 2012 and, in their place, order that:
(a) the appeal to that Court be allowed; and
(b)the order and declaration, other than the costs order, of the Federal Court of Australia made on 19 April 2012 be set aside and, in their place, order that the appeal from the decision of the Administrative Appeals Tribunal dated 26 November 2010 be dismissed.
3.The appellant pay the respondent's costs of this appeal.
On appeal from the Federal Court of Australia
Representation
J T Gleeson SC, Solicitor-General of the Commonwealth with T M Howe QC and A P Berger for the appellant (instructed by Sparke Helmore Lawyers)
L T Grey with J P Mrsic for the respondent (instructed by Pappas J Attorney)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Comcare v PVYW
Industrial law (Cth) – Workers' compensation – Employee injured during overnight stay at motel booked by employer – Employee injured whilst engaged in activity – Employee claimed compensation for injuries under Safety, Rehabilitation and Compensation Act1988 (Cth) – Whether employee's injuries arose in course of employment – Whether employee's injuries sustained during interval or interlude within overall period of work.
Words and phrases – "connection or association with employment", "injury … at and by reference to a place", "in the course of employment", "interval or interlude within an overall period or episode of work".
FRENCH CJ, HAYNE, CRENNAN AND KIEFEL JJ. The respondent was at the relevant time employed by a Commonwealth government agency. She had been required to visit a regional office of the agency in New South Wales with another work colleague to observe the budget review process, meet the regional staff and undertake training. For that purpose, she stayed overnight at a nearby motel which had been booked by her employer. During the course of the evening at the motel, the respondent engaged in sexual intercourse with an acquaintance. In that process, the glass light fitting above the bed was pulled from its mount by either the respondent or her acquaintance and it struck the respondent on her nose and mouth. As a result, the respondent suffered physical injuries and a subsequent psychological injury.
The respondent claimed compensation for her injuries under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SR&C Act"). It provides[1] that Comcare is liable to pay compensation in respect of an "injury" suffered by an employee[2]. An injury for which compensation is payable includes a physical or mental injury "suffered by an employee … arising out of,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Comcare v PVYW [2013] HCA 41
Case
[2013] HCA 41
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Comcare against a decision of the Full Court of the Federal Court of Australia concerning a claim for workers' compensation. The dispute arose when an employee, who was staying at a motel booked by her employer, sustained injuries while engaged in an activity during an overnight stay. The employee claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth), arguing her injuries arose in the course of her employment.
The central legal issue before the High Court was whether the employee's injuries, sustained during an interval or interlude within an overall period of work, could be considered to have arisen in the course of her employment. This required the Court to determine the correct application and scope of the principle established in *Hatzimanolis v ANI Corporation Ltd*, specifically concerning the "connection or association with employment" required for an injury to be compensable. The Court also had to consider whether the Full Federal Court had erred in law by misinterpreting the *Hatzimanolis* test.
The High Court reasoned that the principle in *Hatzimanolis* requires a connection or association with employment for an injury occurring during an interval in a period of work to be compensable. This connection is established if the circumstances in which the employee is injured are connected to an inducement or encouragement by the employer. However, an employer's inducement or encouragement to be at a particular place does not automatically create the necessary connection merely because the employee is injured while engaged in an activity at that place. The Court clarified that *Hatzimanolis* identified two circumstances where an injury may be regarded as sustained in the course of employment: where the employee was injured whilst engaged in an activity the employer induced or encouraged, or where the injury occurred at and by reference to a place the employer induced or encouraged the employee to be. The Court concluded that while employer inducement or encouragement can give rise to liability, it also serves as a limit on liability for injuries sustained during an overall period of work.
The High Court allowed Comcare's appeal, setting aside the orders of the Full Federal Court. The Court ordered that Comcare's appeal to the Full Court be allowed, and the original orders of the Federal Court be set aside, dismissing the appeal from the Administrative Appeals Tribunal. Comcare was ordered to pay the respondent's costs of the High Court appeal.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders, other than the costs order, of the Full Court of the Federal Court of Australia made on 13 December 2012 and, in their place, order that:
(a) the appeal to that Court be allowed; and
(b) the order and declaration, other than the costs order, of the Federal Court of Australia made on 19 April 2012 be set aside and, in their place, order that the appeal from the decision of the Administrative Appeals Tribunal dated 26 November 2010 be dismissed.
3. The appellant pay the respondent's costs of this appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, HAYNE, CRENNAN AND KIEFEL JJ
BELL J
The principle in Hatzimanolis should nevertheless be understood to have sought, and achieved, a connection or association with employment. For present purposes that understanding is helpful to explain, if it be necessary, that for an injury occurring in an interval in a period of work to be in the course of employment, the circumstance in which an employee is injured must be connected to the inducement or encouragement of the employer. An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured whilst engaged in an activity at that place.Conclusion It may be accepted that the purpose and the effect of the principle stated in Hatzimanolis was to create an interval between periods of actual work, to better explain the connection that an injury suffered by an employee in certain circumstances has to the employment. It did so by reference to the fact that the employer induced or encouraged the employee to do something or be somewhere in particular and the fact that the employee did so and was injured. The two circumstances identified by Hatzimanolis were where an injury was suffered by an employee whilst engaged in an activity in which the employer had induced or encouraged the employee to engage; or where an injury was suffered at and by reference to a place where the employer had induced or encouraged the employee to be. An injury sustained in these circumstances may be regarded as sustained in the course of the employee's employment. Properly understood, whilst the inducement or encouragement by the employer may give rise to liability to compensation, it also operates as a limit on liability for injury sustained in an overall period of work.Orders The appeal should be allowed and the order of the Full Court set aside. Instead, there should be an order allowing Comcare's appeal from the decision of the primary judge. An order for costs does not follow. In its application for special leave, Comcare undertook to pay the respondent's costs in this Court and not to seek to disturb the orders for costs made in the courts below. The facts are set out in the joint reasons and need not be repeated. Comcare's liability to compensate the respondent depends upon whether her injuries are correctly characterised as "arising ... in the course of [her] employment"[76]. The Administrative Appeals Tribunal ("the Tribunal") purported to apply the organising principle stated in Hatzimanolis v ANI Corporation Ltd[77] ("the Hatzimanolis test") to the determination of that factual question. It found that the respondent was not in the course of her employment at the material time and affirmed Comcare's decision to reject her claim. [76]Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A(1), 14(1).[77](1992) 173 CLR 473 at 484 per Mason CJ, Deane, Dawson and McHugh JJ; [1992] HCA 21. The Full Federal Court (Keane CJ, Buchanan and Bromberg JJ) upheld Nicholas J's decision that the Tribunal erred in law by superimposing an additional element on the Hatzimanolis test. Comcare appeals by special leave. It contends that the Full Court misapprehended the principle for which Hatzimanolis stands. It does not challenge the authority of that decision.The course of employment
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, HAYNE, CRENNAN AND KIEFEL JJ,
BELL J