FEDERAL COURT OF AUSTRALIA
Dring v Telstra Corporation Ltd [2021] FCAFC 50
ORDERS
VID 398 of 2020 BETWEEN: DANIELLE DRING
Appellant
AND: TELSTRA CORPORATION LTD
Respondent
ORDER MADE BY:
FLICK, RANGIAH AND WIGNEY JJ
DATE OF ORDER:
9 APRIL 2021
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The Appellant is to pay the costs of the Respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FLICK J:
At 2.30am on 14 April 2016, the Appellant in the present proceeding, Ms Danielle Dring, slipped and fell outside a bathroom near the reception area…
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Details
- AGLC
- Dring v Telstra Corporation Ltd [2021] FCAFC 50
- Case
- [2021] FCAFC 50
- Decision Date
CaseChat Overview and Summary
In the case of Dring v Telstra Corporation Ltd, the applicant, Ms Dring, sought compensation from Telstra for injuries she sustained after falling on a wet floor in the foyer of a hotel where she was staying as part of her employment duties. The dispute centred on whether Ms Dring's injury arose out of or in the course of her employment. The matter was appealed from the Administrative Appeals Tribunal to the Federal Circuit Court, where the central legal issue was whether Ms Dring's injury could be linked to her employment.
The court found that while Ms Dring was required to stay at the hotel as part of her employment, the injury did not arise out of or in the course of her employment. The court reasoned that the injury was a result of Ms Dring's personal activities, specifically her extended social activities with a friend until late at night, rather than any activity induced or encouraged by her employer. The court highlighted that for an injury to be compensable, there must be a direct connection between the injury and the employment circumstances, which was absent in this case. The court referred to the High Court decision in PVYW, which established that for an employee’s injury to be compensable, it must not only occur at the place but also by reference to that place, implying that the employer must have induced or encouraged the employee to be in that place or engage in that activity.
The court concluded that since Ms Dring's injury was a result of her personal activities and not any activity induced or encouraged by Telstra, she was not entitled to compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988. Consequently, the appeal was dismissed, and Ms Dring was ordered to pay Telstra's costs.
The court found that while Ms Dring was required to stay at the hotel as part of her employment, the injury did not arise out of or in the course of her employment. The court reasoned that the injury was a result of Ms Dring's personal activities, specifically her extended social activities with a friend until late at night, rather than any activity induced or encouraged by her employer. The court highlighted that for an injury to be compensable, there must be a direct connection between the injury and the employment circumstances, which was absent in this case. The court referred to the High Court decision in PVYW, which established that for an employee’s injury to be compensable, it must not only occur at the place but also by reference to that place, implying that the employer must have induced or encouraged the employee to be in that place or engage in that activity.
The court concluded that since Ms Dring's injury was a result of her personal activities and not any activity induced or encouraged by Telstra, she was not entitled to compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988. Consequently, the appeal was dismissed, and Ms Dring was ordered to pay Telstra's costs.
Orders
Orders of the court
1. The appeal is dismissed.
2. The Appellant is to pay the costs of the Respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Those reasons, in relevant part, provide as follows: [58] 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. [59] 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.[60] 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.[61] 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. …The Tribunal member then set forth the Conclusions in PVYW at para [60] and continued: [62] 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[63] 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.[64] 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.The Tribunal decision – s 44 & a question of law
Ratio Decidendi
Legal Principle Established
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