Comcare v PVYW - [2013] HCATrans 169

[2013] HCATrans 169

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S98 of 2013

B e t w e e n -
COMCARE
Appellant
and
PVYW
Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 AUGUST 2013, AT 10.20 AM

MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth of Australia: May it please the Court, I appear with MR T.M. HOWE, QC and MR A.P. BERGER for the appellant. (instructed by Sparke Helmore Lawyers)

MR L.T. GREY: May it please the Court, I appear with my learned friend, MR J.P. MRSIC, for the respondent. (instructed by Pappas J Attorney)

MR GLEESON: Your Honours will see from our outline that the order I had proposed was to commence with some observations on the statutory language, then dealing some close analysis with the two critical decisions of the Court prior to Hatzimanolis, that is Oliver 1962 and Danvers 1969. Then, analyse Hatzimanolis itself with a view to the key proposition that it does not stand for the principle which the Full Court discerned from it, that is, it does not stand for the principle that mere presence at a place where the employer has encouraged, induced or required one to be, establishes compensation for injuries there suffered absent gross misconduct.

Then, finally, argue that it was open in law to the Tribunal to reach the conclusion that this injury was not compensable under the statute. Your Honours, if that is convenient, could I invite the Court to go to the statutory language, the Safety, Rehabilitation and Compensation Act 1988 of the Commonwealth under section 14(1):

Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

There are exceptions under subsections (2) and (3). Might I just observe there that the exceptions under subsection (2) and (3) are exceptions to the liability to pay compensation, not as the respondent has suggested, exceptions to whether conduct is in the course of employment. The definition of injury in section 5A(1), particularly paragraph (b), is:

an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment ‑

Remaining with that language for a moment, the starting point is to identify an injury suffered by the claimant which meets the description of a physical or a mental injury. In the present case, the injury was a laceration to the face, being hit by a falling light – that is a physical injury – and a subsequent psychological injury which developed. If the suffering of injury is one bookend within the definition, the other bookend is to identify the employment of the employee so far as might be relevant to that suffering…

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.

Continue reading Comcare v PVYW

Details

AGLC: Comcare v PVYW [2013] HCATrans 169
Case: [2013] HCATrans 169
Decision Date

CaseChat Overview and Summary

Comcare appealed a decision of the Federal Court of Australia concerning a claim for compensation by an employee, PVYW, who suffered a severe spinal injury after falling from a height while at work. The employee had been working on a construction site and was attempting to retrieve a mobile phone that had fallen from his pocket onto a lower level of the building. The employer, a company called Thiess, was also involved in the proceedings.

The High Court of Australia was required to determine whether the employee's injury arose out of or in the course of his employment, as required by the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (the SRC Act). Specifically, the Court considered whether the employee's actions in attempting to retrieve his mobile phone constituted a deviation from his employment duties, and if so, whether that deviation was of such a nature as to break the causal connection between his employment and the injury.

The High Court held that the employee's injury did arise out of or in the course of his employment. The Court reasoned that the employee's act of retrieving his mobile phone, while not a direct part of his work duties, was a reasonable and foreseeable action in the circumstances. The Court applied the principle that an employee's actions, even if not strictly within their defined duties, can still be considered to be in the course of employment if they are incidental to the employment and undertaken for a purpose connected with it. The Court found that the employee's attempt to retrieve his personal property, which had fallen from his pocket while he was at work, was a natural and ordinary thing to do and did not constitute a significant deviation that would sever the link between his employment and the injury.

The High Court dismissed Comcare's appeal, affirming the Federal Court's decision that PVYW was entitled to compensation under the SRC Act.

Orders