Commonwealth Bank of Australia v Wark

796 95

JUDGMENT No. ...,.,., d

------....

CATCHWORDS

Workers Compensation - injury in the course of employment - employee cutting finger at home and whilst on call- applying

the test in Hatzimanolis v AN1 Corporation.

Safety Rehabilitation and Compensation Act 1988 (Cth), ss4, 6,

Hatzimanolis v M Corporation (1992) 173 CLR 473

Comcare v McCallum (1994) 49 FCR 199

Inverell Shire Council v Lewis (1992) 8 NSWCCR 562

Comcare v Mather (unreported: judgment delivered 28 April

1995) Kiefel J.

No: NG341 of 1995

THE COMMONWEALTH BANK OF AUSTRALIA	Applicant
- and -

WENDY MARLENE WARK and COMCARE AUSTRALIA	Respondents
O'LOUGHLIN J.

ADELAIDE (~eard	in Sydney)
9 OCTOBER 1995

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY

) )

GENERAL DIVISION

)	No. NG341 of 1995

B E T W E E N :

THE COMMONWEALTH BANK OF

AUSTRALIA

Applicant

- and -

WENDY MARLENE WARK and

COMCARE AUSTRALIA

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER	O'LOUGHLIN J.
WHERE MADE	ADELAIDE (Heard in Sydney
DATE OF ORDER	9 OCTOBER 1995
THE COURT ORDERS THAT:

1. So much of the Tribunal's decision as awarded costs to the first respondent be set aside.

2. Subject to par1 hereof that the appeal be dismissed with

Note: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY

) )

GENERAL DIVISION

)	No. NG341 of 1995

B E T W E E N :

THE COMMONWEALTH BANK OF

AUSTRALIA

Applicant

- and -

WENDY MARLENE WARK and

COMCARE AUSTRALIA

Respondents

REASONS FOR JUDGMENT

Coram:	OILoughlin J.
Place:	Adelaide (Heard in Sydney)
Date :	9 October 1995

The appellant, the Commonwealth Bank of Australia, was, at all material times, the employer of the first respondent, Wendy Marlene Wark; the second respondent is Comcare Australia. I will refer to the parties respectively as "the

B a n k u , "MS Wark" and "Comcare" . MS Wark successfully claimed

workers' compensation in the Administrative Appeals Tribunal as a result of an accident that occurred in the kitchen of her home whilst she was " o n c a l l u . The Bank now appeals against that decision.

The material facts, most of which are taken from an agreed statement of facts, are as follows:- between 8.45 am and 9.30 pm on Saturday, 24 April 1993, MS Wark was rostered by the Bank to hold herself in readiness, outside her ordinary working hours, to perform work associated with automatic teller machines. During this period the Bank supplied her

with paging facilities. At about 11.00 am that day MS Wark was called out to attend to a faulty machine; she attended to it and returned to her home. At about 12 noon she was in her kitchen, attempting to remove, with .a knife, the plastic cap of a bottle; the knife slipped and she badly cut her left index finger.

Pursuant to the Commonwealth Bank of Australia Officers' Award, an officer of the Bank rostered by the Bank to hold herself in readiness, outside ordinary working hours, is entitled to an "on callu allowance at the appropriate rate. That allowance is payable whether the officer is, or is not, called out. In April 1993 the relevant on call allowance for MS Wark was $35.75 because paging facilities had been provided. A slightly greater sum would have been payable if she had not been supplied with a pager. If an officer is called out to attend a faulty terminal, attendance moneys are payable at overtime rates for a minimum of four hours from the time of the first call out, but no further attendance moneys are payable if, within that same four hour period, the officer is called out on another occasion.

The Bank submitted a statement of Margaret Mercuri, the supervisor of the Bank's Sydney Customer Service Centre. It was accepted by the Tribunal, without objection, as part of the Bank's case. MS Mercuri had earlier been the co-ordinator of the automatic teller machine (ATM) servicing team of which

MS Wark was a member. MS Mercuri explained that each team consisted of three people; an officer in charge, a second in command and a back-up. MS Wark was, at the relevant time, second in command of her team. The usual procedure in April 1993 was explained by MS Mercuri in this way: - each member of the team was supplied with a pager. From the time that the team was rostered for duty, each pager was to be switched on. The Bank's Information Service would then page members of the team as and when their services were needed. The normal procedure involved simultaneous contact with the two senior members of the team; they would be given the same message: either the location of the ATM that required servicing or a telephone number to call. If neither member responded within an hour, they would both be paged a second time and if there was still no response from either, the third member of the team (the back-up) would then be contacted.

MS Mercuri's statement concluded with the observation that she did not, at any time, issue a directive requiring team members to remain at home whilst on call, nor did she recall any like directive being issued from any other source within the Bank.

Initially, Comcare denied liability on the basis that MS

Wark's

injury was not one

" a r i s i n g out o f or i n the course o f

employment". In a letter to MS Wark dated 18 January 1994,

Comcare wrote:

"Your employer has not required you to perform any function in your home for the purposes of your employment. Therefore, I am not satisfied that a connection exists between your employment and your

jury.

However, as a result of a reconsideration, a Comcare .Appeals Officer came to the opposite conclusion, saying in a letter to the Commonwealth Bank Officer's Association dated 1 March

"The employee was paid to be on call and accordingly

must be considered on duty when on call."

MS Wark's entitlement to compensation is dependent upon the application to the circumstances of her injury of the provisions of the Safety Rehabilitation and Compensation Act 1988 (Cth) , ("the Act"). Section 14 of the Act is the commencement point. It provides:

"14. (1) Subject to this Part, 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 .

(2) Compensation is not payable in respect of an

injury that is intentionally self-inflicted.

(3) Compensation is not payable in respect of an

injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self -inflicted, unless the in jury results in death, or serious and permanent impairment."

As it was not suggested that the provisions of subss(2)

and (3) have any application, they can hereafter be ignored.

"Injury" is extensively defined in s4 of the Act.

It means:

"(a) a disease suffered by an employee; or

(b)	an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the

employee's employment; or

(C) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with

his or her employment;

..."

Section 6 of the Act expands the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of her employment. Although none of the defined circumstances in the section encompass the facts of this case, the breadth of the section, in addition to the obvious beneficial nature of the legislation, indicate that a liberal interpretation to the Act, and one favourable to the worker, should be taken where that is possible.

So far as this case is concerned, it is only necessary to have regard to that part of the definition of "injury" that relates to a physical injury "arising out of, or in the course of the employee's employment". I t is common ground that MS Wark suffered a physical injury at about 12 noon on Saturday

24 April 1993. On the other hand, it is quite obvious that

the injury was not one "arising out of" her employment; but did it occur "in the course of the employee's employment" thereby rendering it compensable? After considering the decisions in Hatzimanolis v ANI Corporation (1992) 173 CLR

4 7 3 , Comcare v McCallum (1994) 49 FCR 199 and Inverell Shire

Council v Lewis (1992) 8 NSWCCR 562, the Tribunal came to the

conclusion that MS Wark was entitled to compensation because at the time when the injury occurred, she was authorised by her employer-

" to spend her interval i n any manner that was not

inconsistent with her remaining a t the ready to service ATMs and i n that sense, a t the time o f her injury, there i s the connection between her actions and the performance o f her duties."

In Hatzimanolis, the applicant, who resided in New South Wales, successfully applied for a job with an employer at Mt Newman in Western Australia. He knew in advance that the term of employment was for three months and that he and his co- workers would be required to work about ten hours each day for six days a week, that they might have to work on some Sundays, that the employer would have two vehicles to provide transport for them, and that if they got the chance, they could visit the areas around Mt Newman and the Pilbara region. During the workers' third week at Mt Newman the supervisor said that as they were not working on the next Sunday he was organizing a trip to Wittenoom Gorge on that day for anybody who cared to come along. The group travelled in one of the employer's vehicles. The appellant was injured in the course of the trip when the vehicle in which he was a passenger crashed. The Compensation Court of New South Wales held that he was within the course of his employment when he sustained his injuries during the sightseeing trip. The Court of Appeal reversed

that decision on the ground that the journey was not incidental to the performance of his duties. In the High Court in their joint judgment, Mason CJ., Deane, Dawson and McHugh JJ said:

"We would allow the appeal and restore the award made in favour of the appellant. We would do so on the ground that the applicant sustained in jury during an interval occurring within an overall period or episode of work and while engaged, with his employer's encouragement, in an activity which

his employer had organised.

( 4

7 6

)

The decision in Hatzimanolis was applied by a Full Court of this Court in Comcare v McCallum. In that case the respondent was required by her employer to travel to a country town and stay overnight. She was injured when showering at her hotel before proceeding to her place of work. Her claim for compensation under the Act was upheld by the Tribunal and, on appeal, by the Full Court. Lockhart J, with whom Hill and Whitlam JJ agreed, said that he did not find it necessary to refer to authorities that pre-dated Hatzimanolis as it is "the most recent authoritative statement of the High Court in this area of the law; and, as was observed by their Honours in that case and as appears from almost every case in this field, ultimately the cases turn on the particular facts and circumstances of the case, as indeed they do here." (203)

Lockhart J concluded that the respondent's injury was sustained during an interval or interlude in an overall period or episode of her work. He then added that:

". . . this must be seen as part of the course of her

employment, because the Department induced or encouraged her to spend the interval or interlude at an hocel of her choice, thus constituting the spending of an interval or interlude at a particular place or in a particular way within the meaning of that expression in the reasons for judgment of the High Court in Hatzimanolis at 484." (203-204)

Hatzimanolis was followed by the New South Wales Court of Appeal in Inverell Shire Council v Lewis. In that case the respondent was an apprentice plant operator who had been sent from him home town to a training school by his employer, the appellant. The employer had arranged temporary accommodation in a caravan park for the employee for the duration of the school. During the course of an evening, the respondent engaged in normal social activities with a group of young people in the caravan park. In the early hours of the following morning the appellant was shot and wounded. The trial judge found that there had been nothing in the respondent's behaviour that had in any way provoked his attacker.

In the Court of Appeal, Handley JA, with whom Clarke JA agreed said that the respondent's attendance at the training school and his accommodation at the caravan park had been arranged and paid for by his employer, the appellant; they found in favour of the respondent. This result was achieved notwithstanding, as his Honour pointed out, that the respondent's injuries were inflicted by a member of the public who had no relationship with the appellant/employer and that

the attack occurred in the caravan of a third party who

likewise had no relationship with the appellant/employer.

The striking feature of these three cases is that, in each of them, the injury occurred whilst the worker was engaged in an activity that was predominantly, social or domestic; furthermore, in each case, the relevant activity was one which would, more often than not, be conducted in a personal, non-work related, environment. A trip in the country on a Sunday afternoon, a party with friends at the caravan home of another and a person's daily toiletry do not immediately spring to mind as a work related activities. But in H a t z i m a n o l i s Mason CJ, Deane, Dawson and McHugh JJ said at

. .

the

r a t i o n a l

deve lopmen t

o f

t h i s

a r e a

o f

the

l a w r e q u i r e s

r e f o r m u l a t i o n o f

the

p r i n c i p l e s

which

d e t e r m i n e

w h e t h e r

i n j u r y

o c c u r r i n g

b e t w e e n

p e r i o d s

o f a c t u a l

work

i s w i t h i n

the

c o u r s e

o f

the

empl o p e n t . . .

Their Honours then proceeded to enunciate the reformulation in these terms at 483:

. .

there

a r e c a s e s

where

employee

i s r e q u i r e d

embark

upon some

u n d e r t a k i n g for

the purpose

o f

h i s

o r

her

work

i n

c i r c u m s t a n c e s

where ,

n o t w i t h s t a n d i n g

t h a t

i t

e x t e n d s

over

number

o f

d a i l y p e r i o d s

o f

a c t u a l

work,

the

whole

p e r i o d

o f

the

u n d e r t a k i n g

c o n s t i t u t e s

o v e r a l l

p e r i o d

e p i s o d e o f work.

Where,

f o r example ,

a s i n Danvers ,

a n employee i s r e q u i r e d

t o go

t o a

r e m o t e p l a c e

and

l i v e

i n accommodation

prov ided

h i s

her

e m p l o y e r

f o r

the

l i m i t e d

t i m e

u n t i l

p a r t i c u l a r

u n d e r t a k i n g

i s

c o m p l e t e d ,

the

correct

c o n c l u s i o n

i s

l i k e l y t o be

t h a t the

t i m e s p e n t

i n the new l o c a l i t y

c o n s t i t u t e s

one

o v e r a l l

p e r i o d

e p i s o d e

o f

work

r a t h e r

t h a n

series

o f d i s c r e t e p e r i o d s

e p i s o d e s

o f

work.

i n j u r y o c c u r r i n g

d u r i n g

the

i n t e r v a l

b e t w e e n

p e r i o d s

o f

a c t u a l

work

i n

s u c h

c a s e

i s

more readily perceived as being within the current conception of the course of employment than an in jury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality."

In my opinion, this passage from Hatzimanolis provides the answer to this case. MS Wark was required by her employer to hold herself in readiness throughout that Saturday. The submission by counsel for the Bank that the evidence did not warrant such a finding by the Tribunal is contradicted by the agreed statement of facts. As a consequence of accepting her roster, MS Wark was paid the award daily allowance and, in addition, because she had been called out, she was also paid a further four hours at overtime rates. Her acceptance of the roster and her entitlement to the allowance and the overtime wages meant that there was the requisite temporal connection between her injury and her employment. Although she was not injured because of an actual work-related event, she was nevertheless injured at a time when there was an association with her employment in the way in which the workers in

Hatzimanolis, Comcare v McCallum and Inverell Shire Council v Lewis had an association with their respective employments

when they were injured. It would not be correct to regard MS Wark as having engaged in a discrete period of work during the time when she was specifically involved in attending to the faulty ATM; the whole of her rostered hours on that Saturday are to be viewed as one overall period or episode of work and her injury occurred in an interval within that overall period.

There are, as the High Court explained in Hatzimanolis's case, limitations and constraints that must be observed. At 482, in their joint judgment, Mason CJ, Deane, Dawson and McHugh JJ emphasised that it would be an unacceptable extension of the course of employment to hold that an employee was within the course of employment whenever the employer had authorised, encouraged or permitted the employee to spend the time during an interval between periods of actual work at a particular place or in a particular way. They went on to explain that the difference between a compensable and a "non- compensable injury sustained by an ordinary employee after the day's work had ceased lies not so much in the employer's

attitude to the way the interval between the periods of actual work was spent but in the characterization of the period or periods of work of those employees." (483)

In Comcare v Mather (unreported: judgment delivered 28 April 1995) Kiefel J upheld a decision of the Administrative Appeals Tribunal which had held that Comcare was liable to pay compensation under the Act to an injured soldier and to the dependants of a deceased soldier. The two men had been posted to Darwin from their base camp for a period of three months. Whilst on leave in Darwin they had been involved in a motor car accident. Her Honour said, and I respectfully agree, that as a result of the decision in Hatzimanolis, there are now two tests. First, was the injury sustained at a time when there was an interval in an overall episode or did it occur between

two separate periods of work (in which case the injury is non- compensable). If, however, the injury was sustained in an interval of time that occurred in an overall episode, one moves to the second test in order to determine " w h e t h e r the

e m p l o y e e ' s p o s i t i o n o r u n d e r t a k i n g a t the t i m e o f i n j u r y was

s o m e t h i n g i n d u c e d or encouraged by the employer" (at 8 ) . This latter test is based on the remarks of Mason CJ, Deane, Dawson and McHugh JJ in H a t z i m a n o l i s at 484 where their Honours' said:

" A c c o r d i n g l y ,

i t

s h o u l d

now

a c c e p t e d

t h a t

i n t e r v a l

o r

i n t e r l u d e

w i t h i n

o v e r a l l

p e r i o d

e p i s o d e

o f

work

o c c u r s

w i t h i n

the

c o u r s e

o f

employment

i f , e x p r e s s l y or

i m p l i e d l y ,

the

e m p l o y e r

h a s i n d u c e d or encouraged

the employee

t o spend

t h a t

i n t e r v a l

i n t e r l u d e

a t a

p a r t i c u l a r

p l a c e

i n a

p a r t i c u l a r

way. "

As to the latter test the Tribunal said at par29 of its reasons :

"The m a t e r i a l

b e f o r e me

i n d i c a t e s

t h a t MS

Wark

was

s p e n d i n g

her

t i m e

b e t w e e n

ATM

s e r v i c i n g

a t

p a r t i c u l a r

p l a c e

and

i n

p a r t i c u l a r

way

t h a t

was

consistent

w i t h

her

o b l i g a t i o n s

t o

the

bank

d u r i n g

the

r e l e v a n t

p e r i o d

o f

o n - c a l l

work.

F u r t h e r ,

the

a p p l i c a n t

i n d u c e d

encouraged

her

t o a c t

i n

t h i s

way.

Paragraphs

and 5

o f the agreed s t a t e m e n t o f

f a c t s

i n d i c a t e

t h a t

she

had

been

c a l l e d

from

her

home a t on or a b o u t 11.00 am t o service an ATM,

and

was a t home

a g a i n by noon,

the

t i m e o f the i n j u r y .

T h e s e

c i r c u m s t a n c e s

s i t

c o m f o r t a b l y

w i t h

the

r e q u i r e m e n t

t h a t

' [ t l h e team. . .

r e s p o n d

t o

the

c a l l

w i t h i n one

h o u r o f r e c e i v i n g

the message' : paragraph

o f MS

M e r c u r i ' s

s t a t e m e n t . "

Counsel for the Bank challenged this finding, claiming that there was insufficient evidence to support it. I cannot agree. One is entitled to infer that MS Wark would perform her duties conscientiously and that she would accept the

responsibilities that went with those duties; that means that it is a reasonable inference, and one that was open to the Tribunal to accept that MS Wark had her pager switched on in readiness to react to a call in the event that her services were required. She was thereby inhibited to a degree in the activities that she was able to perform; she could not do anything that might be inconsistent with her use of the pager. That was in my opinion the required nexus between her activities and her employment, reflecting an inducement or encouragement by the employer that she spend her time in that interval or interlude in a particular way.

It was further submitted on behalf of the Bank that as MS Wark had a real and meaningful choice to be in differing places during the course of that Saturday - it was her choice to be in the kitchen of her home and not her employer's requirement - she was thereby outside the course of her employment in choosing the location where the injury occurred. Such a proposition is contradicted by the finding of the Court of Appeal in Inverell Shire Council v Lewis and must be rejected.

Subject to one final matter, I am of the opinion that this appeal should be dismissed with costs. The outstanding matter relates to an order for costs by the Tribunal in favour of MS Wark; she did not appear before the Tribunal nor did she appear in this Court on the hearing of the appeal. Normally,

costs are in the discretion of the trial judge but as the issues of the Tribunal were fought out between the Bank and Comcare and it would appear that MS Wark played no part whatsoever in the proceedings I think it appropriate to set aside that part of the Tribunal's determination that made an award of costs in MS Wark's favour.

I certify that this and the

I3 preceding pages are a

true copy of the Reasons for Judgment of Justice O'Loughlin.

Associate

Counsel for the appellant

MS A C Bennett SC

Solicitor for the appellant :

L E Taylor

Counsel for Comcare

MS C E Adamson

Solicitors for Comcare

Australian

Government

Solicitor

No appearance for MS Wark

Hearing Date

18 September 1995

[1995] FCA 796

9 Oct 1995