Dring and Telstra Corporation Limited (Compensation)
[2018] AATA 3149
•31 August 2018
Dring and Telstra Corporation Limited (Compensation) [2018] AATA 3149 (31 August 2018)
Division:GENERAL DIVISION
File Number(s): 2017/0093
Re:Ms Danielle Dring
APPLICANT
AndTelstra Corporation Limited
RESPONDENT
DECISION
Tribunal:Ms Anna Burke, Member
Date:31 August 2018
Place:Melbourne
The Tribunal affirms the decision under review.
........................................................................
Ms Anna Burke, Member
Catchwords
WORKERS’ COMPENSATION – injury resulting from fall – whether injury arose out of or in the course of employment – whether injury occurred in interval between periods of work – whether consumption of alcohol constituted serious and willful misconduct – causation – permanent impairment - decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v PVYW [2013] HCA 41 (30 October 2013)
Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473; (1992) 106 ALR 611; (1992) 66 ALJR 365 (3 June 1992)
O'Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000 (10 September 2015)
Henderson v. Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281
Humphrey Earl Ltd v Speechley [1951] HCA 75; (1951) 84 CLR 126 (14 December 1951)
Government Insurance Office of NSW v Nowalinski 2 MVR 142; (1985) 3 ANZ Ins Case 60-629
Kennedy v Telstra Corporation [1995] FCA 1640 (6 November 1995)REASONS FOR DECISION
Ms Anna Burke, Member
31 August 2018
Ms Danielle Dring (the Applicant) is seeking review of a decision made by Telstra Corporation Limited (Telstra) (the Respondent) made pursuant to section 62 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) which affirmed an earlier determination denying liability for the injury of “left hip contusion” sustained in an accident. At the time of the accident Ms Dring was working as a senior project manager for Telstra (where she worked for 14 years until being made redundant) and was visiting Melbourne from Brisbane in relation to that role. On 29 April 2016 Ms Dring submitted an incident report noting that on 14 April 2016 at 2:30am:
I checked into the Novotel on Monday 11th April with a planned 3 night business trip. About 2:30 AM on 14/4 my friend (who resides in Melbourne) and I returned to the hotel (Novotel on Collins, Melbourne), from dinner. During the change of lifts to get from the ground floor to the hotel rooms, as I was walking past reception I urgently needed to use the toilet, so proceeded to the facilities located on level 6 which is the main foyer, restaurant and bar area.
The bar was closed/empty and I didn’t see any employees around, except for the reception staff who were behind the reception desk. As I exited the bathroom, after a step or two I slipped over – and the next thing I remember is landing quite hard on my left upper thigh/hip area with my arms/hands bracing my upper body towards my left side. I also noticed the floor was wet – it appeared to me the floor had recently been mopped. The reception staff heard my fall and came immediately to my aid as did my friend (and witness) Sarah, who was waiting near the reception area for me to return.
On 15 April 2016, when Ms Dring returned home to Queensland, she attended her general practitioner Dr Celine Luis who noted:
Requests medicare consult, slipped outside hotel toilet landing on left hip on Wednesday night, can walk, has pain lateral hip and hamstring, feels muscle go into spasm, exam gate normal no bruising, left hip moves okay, has soreness over lateral hip, NVS intact, discussed management, ice, ibuprofen says no problems taking it, option of physio, review as needed.
On 1 September 2016 Ms Dring submitted a claim for compensation under the SRC Act. In the claim she noted the diagnosed condition of left hip contusion affecting the upper left leg/hip which was caused by her slipping on a wet floor at the Novotel on Collins Street Melbourne where she was staying for a four-day trip related to the project she was undertaking at the time.
On 13 October 2016, Telstra determined it was not liable to pay workers compensation under section 14 of the SRC Act in respect of the claimed condition as it was of the view that although Ms Dring had sustained the injury it had not arisen out of or in the course of her employment with Telstra.
On 9 December 2016 Telstra affirmed the determination of 13 October 2016 to deny liability for the claim. The reviewer noted that after considering all the facts and issues raised in the reconsideration request they considered that the primary delegate had arrived at a reasonable decision and stated:
At the outset, I accept that you suffer from the Claimed Condition based on the evidence by Dr Celine Luis, General Practitioner, dated 16 August 2016…
After reading the factual evidence, it is that on 13 April 2013 (sic) at 5:30 PM you ceased your Telstra work for the day at approximately 8 PM you departed the residence where you were residing for work, the Hotel Novotel on Collins, to have dinner with Ms McKenzie, a non-Telstra employee, at the restaurant Lucy Liu. You returned to the Hotel Novotel on Collins at 2:15 AM and at approximately 2:30 AM you had a fall resulting in the Claimed Condition.
The primary delegate held the view that your Telstra work duties did not indicate that you were reasonably required, expected or authorised to engage in the activities you undertook from 8 PM on 13 April 2016 to the time of the incident at approximately 2:30 AM on 14 April 2016.
With regard to the timeline of events commencing at 5:30 PM on 13 April 2016, I consider it was reasonable for you to have dinner in connection with your travel to Melbourne for employment purposes. To reiterate, you dined at Lucy Liu’s restaurant commencing at 8 PM which I think was reasonable, however remaining at the restaurant to 11:30 PM with Ms McKenzie my view causes me to think that the connection with your Telstra employment had ceased and had become a private event.
With regard to your further activity of continuing to associate with Ms McKenzie from 11:30 PM to 1:50 AM on 14 April 2016 at the Toff in Town, is in my view clear that the connection with your Telstra employment had been removed.
On 5 January 2017 Ms Dring applied to the Tribunal for review of this determination, stating that she “is entitled to compensation and Telstra is liable to pay worker’s compensation for the left hip intrusion under the Safety, Rehabilitation and Compensation Act 1988 (Cth) as she suffered injury in the course of her employment with Telstra.”
The application was heard on 4 and 5 June 2018. At the hearing Ms Dring was represented by Mr Mark Carey of counsel, instructed by Mr Larry Dent of Arnold Thomas & Becker. Telstra was represented by Mr John Wallace of counsel, instructed by Mr Ben Russell of Minter Ellison. The Tribunal was provided with documentation pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T‑Documents and Supplementary T-documents). The Applicant tendered several medical reports, statements, photographs, CCTV footage and a substantial list of authorities. The following persons gave oral evidence at the hearing: Ms Danielle Dring; Dr John Pentis, orthopaedic surgeon; Associate Professor Peter Steadman, consultant orthopaedic surgeon, and Ms Sarah McKenzie.
ISSUES
The Tribunal needs to consider the following relevant issues:
(i)whether Ms Dring suffered an injury arising out of, or in the course of her employment, within the meaning of the SRC Act;
(ii)if so, whether Ms Dring is entitled to compensation pursuant to section 14 of the SRC Act
LEGISLATION
The relevant provisions of the SRC Act are as follows:
5A Definition of injury
(1) In this Act:
"injury" means:
(a) a disease suffered by an employee; or
(b) 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; 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment
…
5B Definition of disease
(1) In this Act:
"disease" means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
…
6 Injury arising out of or in the course of employment
(1)Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a)as a result of an act of violence that would not have occurred but for the employee’s employment or the performance by the employee of the duties or functions of his or her employment; or
(b)while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment;
14 Compensation for injuries
(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 injury results in death, or serious and permanent impairment.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
Ms Dring
Ms Dring provided evidence to the Tribunal that prior to the fall in April 2016 she had never experienced hip or lower back pain. She said that in her teenage years she was an accomplished gymnast and had suffered an injury during training, which subsequently ended her gymnastic career.
Ms Dring’s statement of 26 April 2017 filed with the Tribunal in respect of these proceedings outlines at length the events leading to her fall which resulted in her claim. In it she states:
I was injured on 14 April 2016 in the course of my employment with Telstra Corporation Ltd as a senior project manager, based in Brisbane.
In the course of my employment, I was required to travel to Melbourne to attend workshops on a project which was underway. The project related to information technology development and delivery.
The workshops were held at 242 Exhibition Street, Melbourne, which was the main Telstra office in Melbourne. I was required to stay in Melbourne for more than one day and my accommodation was at the Novotel at 270 Collins Street, Melbourne.
On Wednesday, 13 April 2016, the workshop finished at approximately 5:00 PM. I then returned to my hotel room. On the following day, I was to attend a further workshop in Melbourne and then return to Brisbane, taking a 4:10 PM flight.
Having returned to the hotel after the workshop on 13 April 2016, I met a friend at approximately 5:30 – 6:00pm. We consumed a bottle of champagne in my room and then left for dinner at Lucy Liu’s in Flinders Lane. We did not finish the bottle. There may have been two glasses remaining when we realised it was getting late. We arrived at the restaurant at about 8:30 PM. We remained there until 11:30 PM. During the course of the dinner my friend and I shared a bottle of wine. It was a white Gewurztraminer wine. We did not have any other alcohol at dinner. Having left the restaurant, my friend and I then walked to Toff ‘N’ town in Swanson Street, arriving there at sometime between 11:30pm on 13 April 2016 and 12:00am on 14 April 2016. We each consumed a cocktail at these premises and left the bar at approximately 1:30am. We spent the majority of time conversing while the drinks remained idle. I then return to the Novotel Hotel.
When I arrived at the hotel, I took a lift to the 6th floor, on which the main reception area was located. The Novotel was undergoing renovations at the time and we were required to take another lift on the sixth floor to our suite floor. Having left the lift, I turned left and walked across a foyer towards the reception desk. There was a walkway leading to the toilets located opposite the reception area and next the bar that was closed. I turned right down this walkway and headed towards a toilet which was located behind the bar. Immediately in front of the door leading into the toilet was an area of tiles. I crossed this area iand entered the toilet. I did not see a wet floor sign when I walked towards and into the toilet. Shortly afterwards, I left the toilet when I took my second step across the tiled area, I slipped and fell landing on my left hip and buttock area. I slipped because tiled area was wet. I only noticed it was wet after I had fallen. It appeared that it had been mopped between the times that I had entered and left the toilet. The floor was dry when I entered the toilet. It was not until I been picked up off the floor and walked back to reception that I saw the wet floor sign. I did not hear anyone else enter or leave the toilet while I was in there. I did not see anyone mopping or cleaning the toilets before I walked in.
Since this fall, I have experienced symptoms in my left hip, left buttock, left leg, left knee and left calf. An anxiety and depressive condition suffered by me prior to the fall has been aggravated by the pain, etc. that I have experienced subsequent to the fall. My fall has created a new trigger for my anxiety. I now worry that whenever I walk across certain floors I may fall and further injure myself. I sometimes require the assistance of someone holding my hand as I walk across the floor so I do not fall. Wearing high heels is also difficult for me now. I do sometimes wear them but not as often and if I do I become worried of falling when walking over certain areas. To compensate this, I’ve had to buy many flat shoes.
I also avoid taking public transport such as buses or trains as I am worried that I will injure myself when attempting to step down from a step or onto a platform. It is also difficult if I have to stand the entire time or when a bus sways constantly. I am also worried of injuring myself from any sharp movements that may require me to brace myself.
When I first received my injuries it was difficult for me to look after myself and simple tasks such as dressing and undressing required assistance for the first few weeks. Over the next few months it was difficult to move. I am better now, although I currently fill a dull ache in my hip joint area which sometimes results in referred shooting pains down the back of my leg behind my knees. My leg becomes very restless at night which makes it extremely uncomfortable to sleep. I find it difficult to sit or stand for long periods. Sitting down for long periods also causes me pain. While I am at work I favour my right buttock while I sit to alleviate the pressure to my left leg and this causes me shoulder pain due to my adjusted posture. I can only drive for short periods before I get sore.
Following the fall, I have taken no time off work. I now work from home most the time to avoid taking public transport and driving to work.
CCTV footage obtained from the Novotel on the night of the fall corroborates Ms Dring’s statement that she had slipped at approximately 2:30am in the reception area outside the female toilets.
Counsel for the Respondent queried Ms Dring in respect of numerous inconsistencies in her statement and factual evidence it had ascertained from Telstra records. Amongst the inconsistencies was a cab fare charge for the night unaccounted for, additional alcohol charged to Ms Dring’s corporate credit card consumed on the night and an hour seemingly unaccounted for between leaving The Toff In Town at 1:30am and arriving back at the hotel at 2:30am. Ms Dring answered that she had not attempted to conceal her actions on the night; nor had she intentionally misled her employer in respect of her consumption of alcohol. She stated she had generally been forthcoming about consuming alcohol on the night.
Ms Dring told the Tribunal that the dinner with Ms McKenzie was not work-related and no one from Telstra had authorised her to go to Lucy Liu’s or The Toff In Town. She indicated that she was senior enough to make discretionary determinations when travelling about where, when, how and with whom she could attend dinner. She observed there was a drinking culture amongst Telstra staff when travelling and that she became very chatty when drinking.
Ms Sarah McKenzie
Ms McKenzie was a work colleague of Ms Dring’s with whom she had dinner prior to the incident and was a witness to the fall. Ms McKenzie provided a statement and evidence to the Tribunal. She described Ms Dring as a mentor, whom she had met whilst working for Telstra in Queensland but that their relationship had become strained as a result of this incident.
Ms McKenzie advised that she had sought her own legal advice in respect of the statement she submitted to the Tribunal to ensure she was accurate in her recollection of events and would only testify to issues where she had 100 per cent certainty of the facts. Ms McKenzie advised the Tribunal that she still worked for Telstra as a senior procurement specialist and that her manager was aware she was providing evidence at the hearing. Ms McKenzie indicated Telstra had provided her with a statement about the incident which she had refused to sign.
Ms McKenzie’s evidence and statement accorded in the whole with the evidence provided by Ms Dring, indicating that they had had champagne in the hotel room before attending dinner at Lucy Liu’s. They had consumed what she described as a large dinner consisting of around three shared plates of food and a bottle of wine, with the evening concluding with cocktails at The Toff In Town, where they sat in a little tram booth and conversed the whole time.
Medical Evidence
Dr John Pentis, orthopaedic surgeon
Dr Pentis, in a medico-legal report dated 20 September 2017 opined:
The lady has sustained in the stated accident, an injury to the biceps, femoris tendon and thigh plus what appears to be a strain to the left hip joint muscles and ligaments and chondral injury. This has also placed strain on her lower back and she has had some low back pain associated with this in the lumbosacral region and lower lumbar musculature.
These are all consistent with the injury mechanism.
The length of recovery is acceptable.
She has more than likely improved conservatively as much as she will at this stage and she has reached stability.
…
The impairment pre-injury is zero as there are no problems previously with the hip joint or the biceps femoris tendon. There may have been some problems with her lower back as she has had chiropractic management, I gather, but apparently nothing severe enough to impart an impairment.
Dr Pentis’s fundamental evidence during the hearing was that Ms Dring’s hip pain and associated impairment was a result of the trauma she suffered when she slipped and fell in April 2016. Prior to the incident she had no history of hip pain. He noted that every individual over time will have degeneration within the hip area and arthritis due to the ageing process. However, arthritis generally presents more aggressively in a person’s dominant side and given Ms Dring is right-handed it is likely that trauma from the accident has resulted in her experiencing pain in her left side and not any underlying pathology.
His prognosis for Ms Dring was fair but he considered she may require more treatment in the future depending on the pain she is experiencing and the impact of her lifestyle on her hips. He outlined that the standard treatment may involve cortisone injections, cleaning up and repairing the tear and eventually if required a full hip replacement. However, there was no guarantee that this would resolve or improve the pain in the area and indeed sometimes surgery can make matters worse.
Associate Professor Peter Steadman, consultant orthopaedic surgeon
Associate Professor Steadman, in a medicolegal report dated 27 November 2017 opined:
The findings of the scan show a chronic condition of the left hip. This is reportedly a clinically symptomatic new condition, which has been diagnosed on MRI. It relates to the acetabulum and the femoral neck rubbing due to the acetabular retroversion mostly and there are no acute features on the MRI. It would be reasonable to assume that she has hip pathology. I note the similarity between the right hip and the left hip radiologically on plain x-ray.
Prior to the fall there was radiological pathology in an unusual consultation and so the issue would be whether she had had previous hip problems and/or whether she aggravated a pre-existing condition. It could not be said that the findings of the left hip MRI present acute pathology.
It has apparently not resolved. She says that she has had perpetual symptoms since the fall which are getting worse. It is unlikely the calf symptoms recently would come from the hip as they are not anatomically aligned areas.
I would expect a soft tissue injury to resolve within six or eight weeks. She does however have pre-existing pathology. The issue is probably more one of whether she had pre-existing hip complaints and had attended the GP for another reported reason but in relation to the hips and then, as a result of the fall, has aggravated for accelerated pre-existing pathology to the extent that she now has chronic left hip pain is requiring further treatment. Her non-physical issues including her redundancy and generalised anxiety disorder, both of which largely are beyond the scope of my specialty, must be taken into account. However, reasonably I would suggest these factors are likely to have a significant impact on the current situation.
The current diagnosis is left hip “pincer” lesion, a form of femoroacatabular impingement.
The prognosis at the moment appears to be poor for all the reasons noted
She is likely to be able to do pre-injury duties although she tells me that she cannot sit for an extended period and cannot walk very well and develops a limp with walking.
Ongoing treatment may be surgical, including a left hip arthroscopy. The standard procedure would be injection with some local anaesthetic and cortisone to determine whether this will actually give her relief of her symptoms. If it does then there may be an indication for hip arthroscopy and surgical treatment of the pincer lesion. In the longer term, she may require hip replacement surgery although this is conceivably not a direct result of the fall due to known condition and its natural history.
Associate Professor Steadman, in a supplementary medico-legal report dated 28 May 2018 stated:
An aggravation could be the only possibility. At the time of the MRI, there is evidence of the small ischial tuberosity tendon tear, but 6-8 weeks would be ample time for this condition to resolve vs a major disruption.
When I examined her she had no loss of hip movement but did have some discomfort which, although could have still be conceivable, based on experience seemed to be excessively outside the clinical timeframe for healing and recovery.
She does have hip pathology which is known to be symptomatic and is a cause of insidious hip pain. Past information to that effect has been articulated in my report, although she was evasive regarding previous treatment clinical explorations she had conducted for her hip pain. Therefore, an aggravation is the only opinion based on radiology and history.
Associate Professor Steadman’s central contention in his evidence was that Ms Dring’s hip pain and associated impairment was due to her underlying pathology, as she suffers from impingement as a result of the developmental shape of her hips. There was no evidence of trauma in the hip region on the MRI taken some time after the fall in April 2016. The MRI indicated a trauma to the bicep area outside of the hip region and the discomfort Ms Dring experienced should have resolved in six to eight weeks after the incident as a tear in this region would have healed in that time.
Associate Professor Steadman provided evidence that Ms Dring suffers from a constitutional problem that is particularly recognisable in women, and that this is presented on the MRI of her pelvis indicating she has the same pathology in both her right and left hip. He opined that Ms Dring was always going to experience hip pain based on her underlying constitutional problems and the change in her left hip has not occurred overnight or as a result of a fall. He contended that the pain in both hips was not going to improve because of their shape and will progressively get worse. He considered her prognosis was poor and indicated she may require surgical intervention to assist with the pain but it was surgically irresponsible to do hip replacements on young patients and her situation would deteriorate with age.
FURTHER ISSUES
Originally the issue in dispute in this matter seemed to be confined to what Bell J described in the High Court in Comcare v PVYW[1] as the “notoriously difficult question” of what constitutes a work-related injury for which workers compensation is payable in accordance with the SRC Act. As noted above section 5A of the SRC Act defines an injury as “arising out of, or in the course of, the employee’s employment.” However, prior to the hearing the Respondent filed with the Tribunal an amended Statement of Facts, Issues and Contentions dated 14 May 2018 to replace its earlier Statement dated 2 June 2017. This document raised several further issues relating to certain sections of the SRC Act, and each in turn was addressed at the hearing:
[1] Comcare v PVYW [2013] HCA 41.
Section 4(13) For the purposes of this Act, an employee who is under the influence of alcohol or a drug (other than a drug prescribed for the employee by a legally qualified medical practitioner or dentist and used by the employee in accordance with that prescription) shall be taken to be guilty of serious and wilful misconduct. This relates to Ms Dring’s consumption of alcohol on the night in question, raising the question as to whether she was guilty of serious and willful misconduct when the fall occurred and would therefore not be entitled to compensation under section 14(3). There was argument regarding the amount she consumed and the extent to which she was affected by alcohol.
Section 14(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 injury results in death, or serious and permanent impairment. This follows from the deeming provision detailed above, as even if Ms Dring is found guilty of serious and wilful misconduct on account of her alcohol consumption, her injury would still be compensable if she was found to have suffered permanent impairment. The Tribunal may therefore consider Ms Dring’s level of impairment, noting that any such finding is limited for the purposes of liability under section 14. The Applicant considered that the medical evidence clearly indicated that Ms Dring had suffered permanent impairment whereas the Respondent argued that Ms Dring had suffered a minimal level of impairment which had not caused any pathological changes.
Section 5B - whether Ms Dring’s employment contributed to the claimed condition to a significant degree. The Respondent contended that Dr Steadman’s report indicated that Ms Dring suffered from a pre-existing disease (defined in section 5B as an ailment suffered or aggravation of an ailment) arising from constitutional factors and therefore the fall did not contribute to the claimed condition to a significant degree. This contention appears to have arisen largely from Dr Steadman observing that in 2014 Ms Dring’s treating practitioner recorded that Ms Dring had expressed concern about her use of the medication Nexium, which studies had indicated could cause or contribute to hip pain and fractures. This naturally indicated that Ms Dring may have been suffering from hip pain at this time long before the accident occurred.
The Applicant argued that the Tribunal should not view the condition through the prism of disease, as the fall resulted in an injury for the purposes of section 5A of the Act in accordance with the findings of Dr Pentis. Furthermore, Ms Dring had expressed a genuine concern in 2014 based on relevant studies about the use of Nexium which did not necessarily mean she was suffering any hip pain at the time her doctor recorded the note. The Tribunal notes this issue gives rise to matters of causation of the claimed condition, which has not been considered in previous determinations.
The Tribunal notes that the relevance of these further issues is contingent on whether the Tribunal finds that the injury arose out of, or in the course of employment, being the primary issue in dispute. However, the Tribunal will nonetheless consider each issue in turn, looking at the available evidence and contentions put forth.
Did Ms Dring’s injury arose out of, or in the course of her employment?
Applicant’s contentions
Counsel for Ms Dring contended that the injury sustained on 14 April 2016 arose in the course of her employment as it formed part of an overall period of work, as she was required to travel to and stay in Melbourne for employment purposes from 10 - 14 April 2016. Counsel referred to the majority judgement in Comcare v PVYW which states:
in such a circumstance, an injury which occurs in an interval between periods of actual work might more readily be understood as being within the course of employment than one occurring after working hours in the ordinary situation.
Ms Dring’s presence at the particular place, the Novotel, was determined by the nature and condition of her employment as Telstra had arranged for her to be accommodated there during the overall work period and had met all reasonable expenses (fares, meals and accommodation). The “Hatzimanolis principle”, as determined in the joint judgement of the High Court in Hatzimanolis v ANI CorporationLtd[2], was outlined to the Tribunal:
Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment "and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen
[2] (1992) 173 CLR 473 at 484.
Ms Dring’s injury was sustained by reference to the local conditions of the place that her employment required and expected her to stay overnight at in Melbourne. The fall occurred because there was a hazard present, being the wet floor in the corridor outside the restroom in the foyer area where she was accommodated. The CCTV footage and witness statements indicate that cleaning operations had occurred while Ms Dring was in the toilet and on exiting the restroom she has slipped without suspecting the hazard. Telstra had arranged for Ms Dring to be accommodated at the Novotel to allow for the provision of the facilities at the hotel to attend any of her domestic needs while she was there. This put her in a position where in attending to those needs she hazarded the risk of the locality - the fall on the slippery wet tiled bathroom surface. Citing Comcare v PVYW:
An employer's inducement or encouragement may create an interval according to Hatzimanolis, but it is not itself a sufficient condition for liability. Further factual conditions necessary for the application of that principle are stated in the passage, following the word "Furthermore". There, it is said that an injury sustained in such an interval will be in the course of employment if it occurred at that place or while the employee was engaged in that activity. It will be so considered unless the employee has been guilty of gross misconduct.
Fundamentally the injury must be referenced to “presence at a place” as set out in Comcare v PVYW:
The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next enquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential enquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.
It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. An employer's inducement or encouragement to be present at a place is not relevant in such a case.
…
An injury occurring to an employee by reference to or associated with a place where the employee is present may involve something occurring to the premises or some defect in the premises. For example, if the light fitting in this case had been insecurely fastened into place and simply fell upon the respondent, the injury suffered by her would have arisen by reference to the motel. The employer would be responsible for injury because the employer had put the respondent in a position where injury occurred because of something to do with the place. Liability in those circumstances is justifiable. Liability for everything that occurs whilst the employee is present at that place is not.
Respondent’s contentions
The Respondent contended that Ms Dring’s injury did not arise out of or in the course of her employment with Telstra.
It also referred to relevant passages from Comcare v PVYW as cited above but argued that at the time Ms Dring sustained the injury she was not engaged in activities that she was reasonably required, expected or authorised to engage in by Telstra or which were incidental to her employment duties.
It was accepted that it was reasonable for Ms Dring to attend a restaurant for dinner as part of work-related travel however in light of her remaining at the restaurant until approximately 11:30 PM and then attending a cocktail bar from approximately 11:30 PM to 1:50 AM, any temporal connection between her employment and the evening activities ceased.
Ms Dring’s activities on the night in question (until the early hours of the morning) were of a private and personal nature and were unconnected to her employment as Telstra did not reasonably require, expect or authorise her to undertake the social activities.
As Ms Dring’s injury occurred while she was undertaking a social activity, even if the injury occurred by reference to the place where her employment required her to be, as argued by her counsel, it did not arise out of or in the course of employment as the temporal connection between Ms Dring’s employment and activity was broken as a result of her social activities. A comparative example of where activities undertaken by an employee took them outside the course of their employment was provided by reference to the judgement of Mctiernan J in Humphrey Earl Ltd v Speechley[3]
The facts proved and admitted cannot, in my opinion, support the conclusion that the riding of the motor cycle for the purpose of going on that excursion and returning from it was a process of the employment or an incident of the employment: the facts do not support the finding that the respondent received the injury in the course of the employment. The driving was from the beginning until it ended in the accident, in the course of an excursion which was entirely beyond the scope of the respondent's employment.
[3] (1951) 84 CLR 126.
Was the injury caused by the serious and wilful misconduct of Ms Dring?
Applicant’s contentions
Counsel argued that Ms Dring’s injury was not caused by serious and wilful misconduct as there was no evidence that supported the contention that she was intoxicated and/or that her intoxication was a causative factor in the fall which led to the injury. Section 14(3) of the SRC Act requires a causal relationship between the employee’s misconduct and the injury and this was not satisfied on the evidence.
Furthermore, serious and wilful misconduct could not be found as the amount of alcohol Ms Dring had consumed had not lead to her being under the influence of intoxicating liquor resulting in a “disturbing of her faculties”. The meaning of this term was addressed via reference to the judgement of Groves J in the Supreme Court of New South Wales in Government Insurance Office of NSW v Nowalinski[4] citing the remarks of the previous district court magistrate:
... under the influence of intoxicating liquor connotes a disturbing of the faculties, as (sic) disturbing the balance of a man's mind, or disturbing the quiet calm intelligent exercise of the faculties.
[4] (1985) 2 MVR 142 at 145.
Although Ms Dring had not denied she had consumed alcohol on the evening of the injury, the amount of alcohol she consumed over the course of eight to nine hours had not caused her to be intoxicated to the extent that she would be deemed guilty of serious and wilful misconduct.
Respondent’s contentions
The Respondent argued that Ms Dring was clearly affected by alcohol on the evening of the injury based on numerous American Express receipts detailing the amounts of alcohol purchased on the evening and the evidence of both Ms Dring’s and Ms McKenzie’s as to their alcohol consumption.
The Respondent conceded that given the alcohol consumption occurred in the context of a social gathering there would not be expected to be any objective scientific evidence (eg blood or breathalyser test results) regarding the extent to which Ms Dring was affected by alcohol. However, the deeming terms of section 4(13) of the SRC Act are such that merely being affected by alcohol would be sufficient to constitute serious and wilful misconduct and there is no further onus on the Respondent to prove a certain level of intoxication.
Ms Dring was also observed being affected by alcohol on the night by “Vishal”, an employee of the Novotel who was working at the reception on the morning of the incident and recorded his observations in an incident report/possible public liability claim where he stated:
Please note that both Mrs Dring and her colleague/friend were visibly tipsy and this may have contributed to the fall
The Respondent further contended that the Applicant’s reference to Nowalinski was erroneous as the issue of Ms Dring’s intoxication did not concern a breach of the criminal law or a prescriptive statutory test, as that case did, but rather a deeming provision of the SRC Act.
Has the injury has resulted in a permanent impairment?
Applicant’s contentions
Counsel considered that this issue should not be before the Tribunal as Telstra had previously indicated that there was no dispute that Ms Dring had suffered an injury at the Novotel on 14 April 2016.
The medical evidence of Dr Pentis should be preferred indicating that Ms Dring’s hip condition was a result of the trauma experienced at the time of the fall and indicated significant damage, which is creating pain/difficulty with walking and resultant secondary effects from the impact of walking in her lower lumbar spine.
Both surgeons who provided evidence before the Tribunal had considered surgical options such as a hip replacement may be required, which unquestionably indicated that Ms Dring has suffered long-term permanent impairment as a result of the injury.
Respondent’s contentions
The Respondent argued that there was no evidence of permanent impairment from the fall. The medical evidence from Associate Professor Steadman should be preferred, which indicated the underlying pathology of Ms Dring’s hip region was the cause of her pain and not any trauma she experienced in the incident. Indeed the injury was neither serious nor permanent, and had not resulted in any pathological changes to Ms Dring’s hip. Ms Dring had also indicated that she was getting better as early as 2016.
Has Ms Dring’s employment contributed to the claimed condition, to a significant degree?
Applicant’s contentions
Counsel argued that there was a lack of good evidence that Ms Dring had any significant pathology in her hips prior to the fall, which resulted in her impairment and the need for medical treatment for the purposes of section 14 liability in accordance with the findings of Dr Pentis. Despite Dr Steadman’s opinion that Ms Dring has equal degeneration in both hips, any trauma and symptoms following the fall appear confined to her left hip, being the side on which she fell. Furthermore, Dr Steadman’s opinion is based solely on radiological reports and does not properly take account of the nature and history of the claimed condition and should be given little to no weight. Dr Pentis in contrast took into account a proper medical history of Ms Dring in preparing his report.
However, even if one were to assume Ms Dring had such underlying pathology, whether or not the injury was on the background of any such predisposition was of no relevance, as the trauma resulting from the fall gave rise to the resulting condition, thus meeting the definition of injury under section 5A of the SRC Act.
Counsel also addressed at some length the issues arising from Ms Dring’s enquiry with her doctor regarding the use of Nexium as identified by Dr Steadman. It was emphasized that Ms Dring had been using Nexium for four years prior to the enquiry in 2014. She expressed legitimate concerns based on credible studies at the time about its effects and contribution to hip fractures and sought a change of medication accordingly. The notes from this consultation record a change of medication to Repabrazole. However they do not actually record a history of hip pain, merely that Ms Dring was worried that continued use of Nexium might cause hip pain or fractures. It was therefore careless of Dr Steadman to represent that Ms Dring gave a history of hip pain at that time and this has resulted in undue suspicion regarding the basis of her claim. The Tribunal should therefore prefer what was a rational explanation for Ms Dring’s enquiry over a careless interpretation of her medical history.
Respondent’s contentions
Counsel argued that there is proper, objective evidence of pre-existing pathology of Ms Dring’s hips in accordance with Dr Steadman’s report. There is an underlying ailment that affects both hips and Dr Steadman asserted that given the available radiology any underlying condition had not been worsened by the fall to constitute an aggravation which would satisfy the relevant test under section 5B of the SRC Act.
Dr Steadman’s evidence regarding any tears should be preferred to that of Dr Pentis and any injury resulting from the fall was temporary and should have resolved within six to eight weeks. The fact that Ms Dring experienced pain for some period after the fall did not demonstrate she had suffered an injury within the meaning of the SRC Act and any age related changes to Ms Dring’s hips have been not accelerated by the fall, nor has there been any pathological change.
The report of Dr Luis on the day following the incident makes no mention of bruising to the affected area and it follows that the extent of any trauma suffered should be questioned.
TRIBUNAL’S FINDINGS
Many jurisdictions have grappled with the vexed question of what constitutes a compensable work-related injury attempting to balance competing social and economic interests. From the employer’s/insurer’s perspective they argue they can only be responsible for risk over which they are able to exercise some form of control and direction. Employees and their representatives have argued that all risks incidental to or associated with their employment should be covered. Then there is the obvious “pub test” (that this case represents) regarding the apparent conflict between legal argument on one hand and mainstream common sense on the other. This was noted in the Federal Court’s decision in Kennedy v Telstra Corporation[5], where Tamberlin J found no causal nexus between Mr Kennedy’s employment and the assault he suffered, however the assault occurred during an interval in his employment:
Having regard to the nature and duration of his work which required him to be away from his normal place of residence and to find accommodation closer to his place of work, I consider that the injury occurred during an interval or interlude within an overall period or episode of work. The evidence indicates that the employer had impliedly encouraged the employee to spend that interval or interludes at a place of accommodation within reasonable travelling distance of his place of work. I do not think that the principles laid down in Hatzimanolis should be construed narrowly but rather they should be applied in a common sense and practical manner to accord with the realities of human behaviour.
[5] Timothy Frederick Kennedy v Telstra Corporation [1995] FCA 1640.
There is a plethora of case law in respect of what constitutes “arising out of or in the course of the employee’s employment” and much of this was referred to during the course of the Tribunal hearing, with the Applicant and Respondent arguing relevant cases supported their contentions. Some would argue this question commenced with the Henderson-Speechley test which was summarised as “whether at the relevant time the employee was doing something which he or she was reasonably required, expected or authorised to do to carry out his or her duties”. In Hatzimanolis the test was refined to consider whether the employee was expressly or impliedly induced by the employer during a period of overall work to stay in a particular place or act in a particular way and was seen as a two-step test.
In PVYW, the majority of the High Court determined that for the employee’s injury to be compensable it must not only have occurred at the place but by reference to that place. This narrowing of the place test allows compensation for injuries which occur at the place which the employer has induced or encouraged the employee to be, accepting the place is suitable for the purpose and does not impose risk to the employee’s health and safety. The narrowing of the place test increases the requirement of the employee to demonstrate the injury has been sustained whilst engaged in activity induced or encouraged by the employer.
There is no dispute that Ms Dring was required by Telstra to stay at the Novotel in the course of performing her duties as was evidenced by the corporation booking and paying for all her associated airfares, accommodation and incidental costs. There is also no dispute that Ms Dring fell in the foyer of the Novotel. Dispute arises as to what the injury can be referenced to. The Applicant contends that the injury arose within an overall course of employment by reference to the place where Ms Dring was required to stay. It is therefore irrelevant whether Telstra induced or encouraged her to be in the foyer of the Novotel at 2:30am following an extensive personal night out “on the town” with a friend. The Respondent in contrast argues that the injury occurred by reference to the social activities she was engaged in, which occurred between two discrete periods of employment and which had no connection to Ms Dring’s work.
The mere presence of Ms Dring at a particular place which resulted in her fall is not sufficient to find she suffered a compensable injury. There must be a connection between the injury and the circumstance in which the injury was suffered. As the majority of the High Court said in PVYW:
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.
As the majority of the Court found in PVYW injuries which might have occurred while eating, sleeping or bathing at the place are compensable because they are activities an employer might be taken to have induced, encouraged or expected an employee to do when required to work away from home. However the injuries suffered by PVYW were not compensable as her injury had arisen as a result of the activities in which she had engaged which her employer had not encouraged or induced. As the Court noted:
Nothing said in Hatzimanolis supports the notion that the employer is liable for an injury which occurs when an employee undertakes a particular activity, if the employer has not in any way encouraged the employee to undertake that activity but has merely required the employee to be present at the place where the activity is undertaken
The Tribunal considers that similarly, Ms Dring’s injuries were a result of the activities in which she had been engaged without her employer’s inducement or encouragement; that is, socialising with a friend for a period of more than eight hours until approximately 2:30am. They did not occur merely by reference to a place. As common sense would dictate an employee required to be at work the following day would be expected at this hour of the night to be securely in her hotel room, which had a serviceable bathroom which she could have utilised, placing her at no risk of falling on a recently cleaned floor. Her exposure to and interaction with this hazard cannot be divorced entirely from her social activities. The Tribunal also agrees with the Respondent that it was reasonable for Ms Dring to attend a dinner as part of her work-related travel. However the extent and duration of her personal activity resulted in a broken nexus with her employment and therefore the injury sustained did not arise out of or in the course of her employment, but between two discrete periods of work. It follows that she is not entitled to compensation under section 14 of the SRC Act.
As a result of this finding there is no need for the Tribunal to consider the other issues put forth by Telstra in respect of denying liability for Ms Dring’s claim. However for the sake of completion, the evidence lead on these issues will be considered briefly.
There was insufficient evidence before the Tribunal to indicate that Ms Dring’s actions in drinking alcohol constituted serious and wilful misconduct. Ms Dring was clearly within her rights to consume alcohol during a break from her employment, as was evidenced by Telstra paying for her bill at Lucy Liu’s. And whilst it would appear that a large amount of alcohol was consumed, it was over a long period of time and, as conceded by the Respondent, there is no record of how she was affected by the alcohol consumption. The Tribunal also accepts the Applicant’s submission that there must be a causal connection between any purported misconduct and a resulting injury in accordance with the exclusionary provision of section 14(3) of the SRC Act. To draw a conclusion that her fall was due to or caused by her intoxication was not justified by the evidence before the Tribunal. The Tribunal could not be satisfied that Ms Dring would not have sustained the fall had she not consumed alcohol on the night.
Ms Dring’s injury, whilst not found to be compensable, was initially determined to have arisen as a result of the fall which occurred at the Novotel on 14 April 2016. This was based on the evidence from the report of Dr Luis dated 16 August 2016, Ms Dring’s general practitioner who had examined her on the day following the fall. The request for a medical examination by Dr Pentis and Dr Steadman came late in the piece of the claim, and their medical evidence was therefore not contemporaneous with the fall and as such the Tribunal affords it less weight. On the totality of the evidence provided, the Tribunal accepts that the claimed condition arose as a result of the fall.
CONCLUSION
The Tribunal affirms the decision under review.
I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member:
[sgd].......................................................................
Associate
Dated: 31 August 2018
Dates of hearing: 4 & 5 June 2018 Counsel for the Applicant: Mr Mark Carey Solicitors for the Applicant: Mr Larry Dent, Arnold Thomas & Becker Counsel for the Respondent: Mr John Wallace Solicitors for the Respondent: Mr Ben Russell, Minter Ellison
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