Comcare v PVYW - [2013] HCATrans 114

[2013] HCATrans 114

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S8 of 2013

B e t w e e n -
COMCARE
Applicant
and
PVYW
Respondent
Application for special leave to appeal

HAYNE J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MAY 2013, AT 11.39 AM

MR J.T. GLEESON, SC, Solicitor-General of the Commonwealth of Australia: May it please the Court, I appear with MR A.P. BERGER, for the applicant. (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)

HAYNE J: Yes, Mr Solicitor.

MR GLEESON: Your Honours, the question we seek to raise is whether an employee suffers an injury in the course of employment so as to be compensable statutorily if no more than the following is established; the injury was suffered at a time when the employee was at a place where he or she had been induced or encouraged to be by the employer. In other words, leaving aside gross misconduct and the like ‑ ‑ ‑

HAYNE J: Induced, encouraged, required?

MR GLEESON: Or required, yes, any of those. Leaving aside situations of gross misconduct or intentional injury, if all one has is induced, encouraged or required to be at a place, is there no further inquiry permitted or required by law as to the use which the employee was making of the place, and the relationship between that use and the employment relationship which led to the person being there.

Now, the burden of our application has two aspects to it. The first is that the critical passage in Hatzimanolis, that I will come to in one moment, which was intended to provide certainty and a guiding principle at least in the “area of place” cases, has led to a difficulty and there is a real and substantial issue whether there needs to be – as in Danvers, which was the original place case that Hatzimanolis was capturing – an inquiry into whether the use of the place is the ordinary use, the foreseeable use, the use related to the employment relationship as opposed to any use. That is our first proposition.

HAYNE J: But is that first proposition one that would entail revisiting Hatzimanolis with a view, what, to further elucidation, or with a view to start again? What I am asking is, what do you say, if leave went, you would be asking the Court to do about Hatzimanolis?

MR GLEESON: I would be asking the Court not to start again, but in the critical line, “encouraged to be in a particular place or engage in a particular activity”, the concept of the injury occurring in a particular place would be the concept which Chief Justice Barwick had in mind in Danvers, and which was picked up…

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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Details

Case: [2013] HCATrans 114
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal of Comcare against a decision of the Federal Court of Australia concerning the entitlement of an employee, PVYW, to compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The dispute arose from injuries sustained by PVYW, a Commonwealth employee, during a work-related trip to a conference. While at the conference, PVYW was sexually assaulted by a colleague. The primary question was whether the injuries sustained by PVYW were of a kind for which compensation was payable under the SRC Act, specifically whether the assault constituted an "injury" as defined by the Act and whether it arose out of or in the course of PVYW's employment.

The High Court was required to determine whether the Federal Court had erred in finding that PVYW's injuries were compensable under the SRC Act. This involved considering the interpretation of "injury" under section 5A of the SRC Act, which includes diseases and injuries, and the causal connection required between the employment and the injury. Specifically, the Court had to assess whether the assault, occurring outside of direct work duties but during a work-related event, could be considered to have arisen out of or in the course of employment.

In their joint judgment, Hayne and Gageler JJ clarified that an injury arises out of or in the course of employment if the employment is a cause of the injury. Their Honours held that the SRC Act does not require the employment to be the sole or dominant cause of the injury, but rather that it must be a cause. In this instance, the employment provided the occasion for PVYW to be in the location where the assault occurred, and therefore the employment was a cause of the injury. The Court affirmed that the Federal Court's finding that the injuries were compensable was correct.

Orders