Dring v Telstra Corporation Limited

Case [2020] FCA 699

FEDERAL COURT OF AUSTRALIA

Dring v Telstra Corporation Limited [2020] FCA 699

Appeal from: Dring and Telstra Corporation Limited (Compensation) [2018] AATA 3149
File number: VID 1231 of 2018
Judge: SNADEN J
Date of judgment: 26 May 2020
Catchwords: WORKERS’ COMPENSATION – statutory interpretation – definition of “injury” in s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – where the appellant fell within the public area of a hotel at which she was staying during a work trip – fall caused by slipping on wet floor tiles – injury occurred at 2:30am after a night of non work-related socialising – whether injury arose out of or in the course of employment – whether injury sustained during interval or interlude in overall period or episode of work – whether relevant nexus existed between the injury and the course of the appellant’s employment – whether exposure to hazard resulted from social activities – appeal dismissed
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Safety, Rehabilitation and Compensation Act 1988 (Cth) pt II; divs 2, 3, 4, and 5; ss 5, 5A, 6, 14, 16, 62 and 64

Cases cited:

Charles R. Davidson and Company v M’Robb (1918) AC 304

Comcare v McCallum (1994) 49 FCR 199

Comcare v PVYW (2013) 250 CLR 246

Commonwealth v Oliver (1962) 107 CLR 353

Haritos v Commissioner of Taxation (2015) 233 FCR 315

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281

Hope v Bathurst City Council (1980) 144 CLR 1

Humphrey Earl Limited v Speechley (1951) 84 CLR 126

Kennedy v Telstra Corporation (1995) 61 FCR 160

Lee v Transpacific Industries Pty Ltd (2013) 136 ALD 652

McCurry v Lamb (1992) 8 NSWCCR 556

Mendez v Telstra Corporation Limited (1998) 147 FLR 394

O’Kane v Comcare (2014) 221 FCR 482

Telstra Corporation Ltd v Bowden (2012) 206 FCR 207

Westrupp v BIS Industries Ltd (2015) 238 FCR 354

Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2020] FCAFC 64

Date of hearing: 16 October 2019
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 71
Counsel for the Appellant: Mr M X Carey
Solicitor for the Appellant: Arnold Thomas & Becker
Counsel for the Respondent: Mr J R Wallace
Solicitor for the Respondent: 8 October 2018 – 3 April 2019 – Minter Ellison
4 April 2019 – Sparke Helmore Lawyers

ORDERS

VID 1231 of 2018
BETWEEN:

DANIELLE DRING

Appellant
AND:

TELSTRA CORPORATION LIMITED

Respondent

JUDGE:

SNADEN J

DATE OF ORDER:

26 MAY 2020

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

SNADEN J:

  1. In the early hours of Thursday, 14 April 2016, the appellant,…

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Dring v Telstra Corporation Limited [2020] FCA 699
Case
[2020] FCA 699
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Dring v Telstra Corporation Limited involved a claim for workers' compensation following an injury sustained by the appellant, Dring, while she was on a work trip. The central issue was whether Dring's injury arose out of or in the course of her employment, given the specific circumstances surrounding the incident. The court examined the statutory definition of "injury" in the Safety, Rehabilitation and Compensation Act 1988 (Cth) to determine if the injury was connected to her employment.

The court considered whether the injury occurred during an interval or interlude in the overall period of work and whether a sufficient nexus existed between the injury and Dring's employment. The court found that Dring's injury, which occurred after a night of socialising, did not arise out of or in the course of her employment. The court concluded that Dring's conduct during her social activities, which led her to be in the hotel foyer at an unusual hour, severed the connection between the injury and her employment. Therefore, the court dismissed the appeal, holding that the Tribunal did not err in its application of the statutory test.

In summary, the court upheld the Tribunal's decision that Dring's injury was not compensable under the Act because it did not arise out of or in the course of her employment. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

After embarking upon a thorough analysis of the majority’s reasoning in PVYW, their Honours recognised (at 365 [53]-[54], emphasis added):…the existence of two streams of analysis having their origins in two different circumstances — activity and place. Despite the obvious possibility for overlap on the facts of particular cases, we do not understand the majority judgment in PVYW to say that satisfaction of both tests is required as a condition for liability……it is not necessary to ask whether the place at which the injury occurred and the activity in which the employee was engaged were each induced or encouraged by the employer… However, in some cases (and PVYW was one such case) the employee’s own conduct might indicate a lack of connection with employment. Later, their Honours considered (at 367 [63]) whether anything that the majority said in PVYW might impact upon their application of the tests established by earlier authorities:In the present case, the only question which might arise from PVYW is whether Mr Westrupp is entitled to compensation because the employer induced or encouraged him to spend an interval or interlude at a particular place and he did so in a way which maintained a sufficient connection with his employment.(emphasis added) That observation has potential ramifications for this case. Unlike PVYW, Westrupp was a “place” case. The court accepted (at 365-366 [55]) that, at the time of the assault that occasioned it, Mr Westrupp was not engaged in any activity to which his injury could be thought to have been referable. Instead, his injury arose because of the presence of an aggressive patron at the tavern. Nonetheless, their Honours recognised that there might be something about the way in which an employee spends an interval or interlude at a particular place that suffices to sever any connection between an injury referable to that place (on the one hand) and the employee’s employment (on the other). There was no such severing of the connection between injury and employment in Westrupp. On that score, their Honours observed (at 366 [56]) that there was not “…anything exceptional in taking a drink at the wet mess…which was available to residents in the camp a short walk from the [single persons quarters part of the camp] and which was an adjunct to the accommodation provided by Mr Westrupp’s employer”. Nonetheless, the court’s observation in Westrupp (above, [51]) invites the question: in what circumstances might an employee’s conduct sever what would otherwise be a connection between an injury referable (or partly-referable) to a place (on the one hand) and the employee’s employment (on the other)? When might the circumstances in which an employee is injured because (or partly because) of a hazard present at a particular location rise to the standard of “exceptional”, such that the connection between the injury and the employment is extinguished or absent? Those are not easy questions to answer. As the full court’s reasoning in Westrupp (above, [53]) might tend to suggest, determining whether, in the circumstances of any given case, there exists the connection that the SRC Act requires between injury and employment will often, if not always, be a function of impression and degree.

Evidence

Evidence Before The Court

For the reasons already expounded (particularly at [58]-[59] above), I do not accept that either of those considerations was irrelevant. Telstra did not encourage Ms Dring to be in the hotel foyer at 2:30 am on a day that she was to attend business-related workshops. That reality informs whether or not the circumstances in which Ms Dring sustained her injury possessed a connection with her employment that was sufficient to invoke the definition for which s 5A of the SRC Act provides.Ground three: no evidence that the injury was referable to social activities By her written submissions in the appeal, Ms Dring contended as follows:The Tribunal found that the hazard was engaged by reference to the place where she was required to stay, not the social activity, which had ceased. The time at which the hazard was encountered, being 2.30am “following an extensive personal night out” [Tribunal’s Decision, [60]] did not form evidence relevant to any test for liability by reference to either activity or place. The activity engaged in when the injury occurred, that is walking away from the toilet and slipping on the wet surface, was not identifiably part of any “social activity” and wasn’t capable of being so characterised. As has already been explored, Ms Dring’s extensive socialising on the evening of 13 April 2016 informs the court’s assessment of the circumstances within which she sustained her injury. By reason of her conduct, those circumstances lacked a connection with her employment sufficient to constitute that injury as one that arose out or in the course thereof. Ms Dring’s injury was at least partly referable to her activities on the night of 13 April 2016: had she not done what she and Ms McKenzie did that evening, she would not have returned to the Novotel on Collins Street hotel at 2:30am and would not have had occasion to interact with the hazard—the wet, slippery tiles—in the manner that she did. None of that is controversial. Ms Dring’s attempt to constitute the activity in which she was engaged at the time that she slipped and hurt herself—that is, “…walking away from the toilet and slipping on the wet surface”—as unrelated to the “social activity” by which the rest of her evening was largely characterised is, with respect, misconceived.CONCLUSION The Tribunal did not misconstrue the statutory test inherent in the definition of “injury” in s 5A of the SRC Act. The injury that Ms Dring sustained early in the morning of Thursday, 14 April 2016 was not one that arose out of, or in the course of, her employment with Telstra. The Tribunal’s Decision—proceeding, as it did, upon that conclusion—was not the product of legal error that this court should correct on appeal. The appeal should (and will) be dismissed with costs.

Decision

Reasons for decision

By means of a notice of appeal dated 26 September 2018, Ms Dring now appeals that decision (hereafter, the “Tribunal’s Decision”). Although that notice purports to identify multiple questions of law in respect of which it is said that the Tribunal erred, there is really only one at the core of the appeal: Ms Dring contends that the Tribunal misunderstood the circumstances in which the SRC Act recognises an injury as having arisen out of, or in the course of, employment. For the reasons that follow, I do not accept that it did.BACKGROUND Most of the relevant background facts have already been stated. There is nothing about them that is presently controversial. Before the Tribunal, there was a factual contest as to whether or not Ms Dring was intoxicated at the time of her accident. It was not controversial that Ms Dring’s interactions with Ms McKenzie on the night of Wednesday, 13 April 2016 (and early morning of Thursday, 14 April 2016) were of a social, rather than work-related nature. There was evidence to suggest that Ms Dring was intoxicated at the time of her accident (none of which need here be examined). She maintained that she was not and the Tribunal ultimately accepted her evidence. The present appeal proceeds upon that acceptance. There was also, before the Tribunal, conflicting medical evidence as to whether or not the impairment or incapacity that Ms Dring attributes to the injury that she sustained on 14 April 2016 were, instead, functions of some pre-existing pathology. The particulars of that impairment or incapacity were not the subject of exploration in this court. Regardless, evidence led on behalf of Telstra before the Tribunal suggested that the fall that occurred on 14 April 2016 was minor and likely resolved within six to eight weeks of having occurred. Any ongoing impairment or incapacity, so that evidence suggested, was not referable to her employment; rather, it was a function of an underlying condition affecting Ms Dring’s hips. The Tribunal rejected that evidence and concluded, instead, that Ms Dring’s condition (such as it might be) was a consequence of the accident that befell her on 14 April 2016. There is (and, before the Tribunal, was) no dispute that Ms Dring travelled to Melbourne for the purposes of attending workshops organised by her employer. Telstra arranged and paid for her airfares to and from Melbourne, and her accommodation at the Novotel on Collins Street. Similarly, there was no material contest about the circumstances in which Ms Dring’s injury came about. Upon her return to the Novotel on Collins Street at approximately 2:30am on Thursday, 14 April 2016, she and Ms McKenzie caught an elevator to the sixth floor, where the reception and main foyer area was located. In order to get to Ms Dring’s hotel room, it was necessary for them to walk to a second bank of elevators on that floor. Whilst walking between the two lift wells, Ms Dring found herself in urgent need of a bathroom. She visited the public restrooms located in (or near) the main foyer area, access to which was gained via an area of tiled flooring. It appears that whilst Ms Dring was making use of those facilities, that tiled floor area outside of them was mopped. The accident occurred after she emerged.THE LEGISLATIVE SCHEME

Ratio Decidendi

Legal Principle Established

Respectfully—and for reasons already stated (above, [58]-[59])—I do not accept that the Tribunal’s Decision proceeded upon an impermissible “narrowing” of the test applicable in respect of an injury sustained at and by reference to the location at which it occurred.Ground two: irrelevant considerations Ms Dring submits that, by impermissibly “narrowing” the test that it should have applied to the circumstances surrounding her injury, the Tribunal proceeded to take account of irrelevant considerations, particularly that:(1)the injury “…could not entirely be divorced from her social activities”; and that(2)there was an expectation, founded in “common sense”, that, at the time that her injury was sustained, she ought to have been “securely in her hotel room”,(See, in each case: Tribunal’s Decision, [63]; above, [19]). For the reasons already expounded (particularly at [58]-[59] above), I do not accept that either of those considerations was irrelevant. Telstra did not encourage Ms Dring to be in the hotel foyer at 2:30 am on a day that she was to attend business-related workshops. That reality informs whether or not the circumstances in which Ms Dring sustained her injury possessed a connection with her employment that was sufficient to invoke the definition for which s 5A of the SRC Act provides.Ground three: no evidence that the injury was referable to social activities By her written submissions in the appeal, Ms Dring contended as follows:The Tribunal found that the hazard was engaged by reference to the place where she was required to stay, not the social activity, which had ceased. The time at which the hazard was encountered, being 2.30am “following an extensive personal night out” [Tribunal’s Decision, [60]] did not form evidence relevant to any test for liability by reference to either activity or place. The activity engaged in when the injury occurred, that is walking away from the toilet and slipping on the wet surface, was not identifiably part of any “social activity” and wasn’t capable of being so characterised. As has already been explored, Ms Dring’s extensive socialising on the evening of 13 April 2016 informs the court’s assessment of the circumstances within which she sustained her injury. By reason of her conduct, those circumstances lacked a connection with her employment sufficient to constitute that injury as one that arose out or in the course thereof. Ms Dring’s injury was at least partly referable to her activities on the night of 13 April 2016: had she not done what she and Ms McKenzie did that evening, she would not have returned to the Novotel on Collins Street hotel at 2:30am and would not have had occasion to interact with the hazard—the wet, slippery tiles—in the manner that she did. None of that is controversial. Ms Dring’s attempt to constitute the activity in which she was engaged at the time that she slipped and hurt herself—that is, “…walking away from the toilet and slipping on the wet surface”—as unrelated to the “social activity” by which the rest of her evening was largely characterised is, with respect, misconceived.CONCLUSION