Eagle v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 20
•30 January 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Ronald Eagle v Simon Blackwood (Workers' | ||||||||
| Compensation Regulator) [2014] QIRC 020 | |||||||||
| PARTIES: | Ronald Eagle | ||||||||
| (Appellant) | |||||||||
| v | |||||||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||||||
| (Respondent) | |||||||||
| CASE NO: | WC/2013/7 | ||||||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | ||||||||
| (Workers' Compensation Regulator) | |||||||||
| DELIVERED ON: | 30 January 2014 | ||||||||
| HEARING DATE: | 11 June 2013 | ||||||||
| MEMBER: | Commissioner Black | ||||||||
ORDERS : |
| ||||||||
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - Appellant must establish on the balance of probabilities that his injury arose out of, or in the course of, his employment if the employment is a significant contributing factor to his injury - appellant was undertaking a task for employment related social club when injured - injury held not to be in the course of employment - Appeal dismissed - Claim not one for acceptance - costs reserved. | ||||||||
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32(1), s 550 | ||||||||
| Jones v Dunkel [1959] 101 CLR 298 Shirley Joy Cooper and Q-COMP (C/2010/38) Decision - < Hatcliffe v Q-COMP (C/2006/76) - Decision - < | |||||||||
| Wyatt v NSW Police Department (1996) 13 | |||||||||
| NSWCCR 429 Wolmar v Travelodge Australia Ltd (1975) 26 FLR 249 Clancy v Department of Public Health (1962) NSWR2 WorkCover Queensland v BHP (2002) QIC 27 Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 Comcare v PVYW [2013] HCA 41 | |||||||||
| Haider v JP Morgan Holdings Aust Ltd Trading as | |||||||||
| JP Morgan Operations Australia Ltd [2007] NSWCA 158 | |||||||||
| APPEARANCES: | Mr J. Harper of Counsel, instructed by Maurice Blackburn Lawyers, for the Appellant. Mr F. Lippett of Counsel, directly instructed by Simon Blackwood (Workers' Compensation | ||||||||
| Regulator), the Respondent. |
Issue for Determination
[7] For the purposes of this appeal, the regulator agreed that the appellant was a "worker" under the Act and that he had suffered a personal injury. The matter in contention is whether, pursuant to section 32 of the Act, the appellant's injury arose out of, or in the course of, his employment if the employment is a significant contributing factor to his injury. The parties agreed that the facts and circumstances of this case did not attract the application of Section 34 of the Act.
Jurisdictional Documents
[8] The jurisdictional documents [Exhibit 1] tendered by the regulator were as follows:
Brisbane City Council Compensation Application dated 16 May 2012; Reasons for Decision of City WorkCover dated 30 July 2012; Q-COMP Application for Claim Review dated 29 October 2012; and Q-COMP Reasons for Decision dated 13 December 2012.
Nature of the Appeal
[9] The appeal to the Commission is by way of a hearing de novo. To succeed with his appeal, the appellant must establish on the balance of probabilities that his injury arose out of, or in the course of, his employment if the employment is a significant contributing factor to his injury.
Evidence
[10] Three witnesses gave evidence in support of the appeal:
Mr Ronald Eagle - appellant, bus driver and president of the social club; Mr John McVey - bus driver and assistant secretary of the social club;
and Mr Paul Vickers-Elliot - bus driver and treasurer of the social club. The regulator did not call any witness evidence.
Garden City Bus Depot Recreation and Social Club
[11] The appellant had held the role of president of the social club for about 15 years. The appellant said that responsibilities of the president of the social club included convening, chairing and attending meetings, raising money for the club, organising the budget with the Treasurer, attending to correspondence in conjunction with the Secretary, and co-ordinating events. Social club events included trips away, family days, outings to the beach, dinners, Christmas parties for adults and children, bar-b- ques and functions for retiring members.
[12] The appellant undertook tasks associated with these events such as making bookings, buying food and drinks, cooking food, and so on. He also arranged for cards and/or flowers to be sent to members or families of members in the event of retirements, celebratory occasions, illness or injury or death. An additional social club activity was to raise money for charitable causes and to support members who were unable to work because of illness for significant periods of time. The appellant had a key role in terms of implementing decisions made by the social club committee including decisions relating to the purchase of equipment and the maintenance of equipment.
[13] The appellant was paid by the Council for undertaking certain duties associated with bar-b-ques, principally the cooking function. However the appellant was not paid when he left the depot during breaks to purchase food and drinks and related items. It was McVey's evidence that the cooking function at bar-be-ques was always completed by social club committee members. The committee members normally organised the bar-b-ques and bought the food, meat and drinks that were consumed during bar-b-ques. McVey said that the social club held at least two bar-b-ques each year and that Council contributed half the cost of these functions.
[14] In terms of the organisation of events it was McVey's evidence that events were generally planned and organised by the social club committee. For off-site events it was usual for the president, vice-president, and secretary to visit potential locations and assess their suitability. These visits might involve trips on week-ends or during other non-working periods.
[15] The appellant estimated that he would spend approximately 2 to 3 hours each day conducting his duties as the president of the social club. Typically he would perform these duties in the break between his shifts, sometimes at the social club premises itself but on occasions he would also leave the premises and attend other locations to conduct this business. He would attend meetings during these breaks and also use the time to collect supplies from local businesses for use in raffles or bar-b-ques and other purposes. In some circumstances he was assisted and accompanied by others, on other occasions he completed his social club activities alone.
[16] The appellant agreed that he had not been directed or requested by Council management to spend time on the social club.
[17] Membership of the social club was not compulsory and about two thirds of the workforce attached to the Garden City Depot were members of the social club. At the time of the hearing, membership of the social club was in the order of 270 persons.
[18] Membership subscriptions were collected via a payroll deduction arrangement sanctioned and maintained by the Council. Council remitted social club fees collected via payroll deduction on a fortnightly basis. Member's pay an annual subscription of $152. It was Vickers-Elliott's evidence that approximately $1400 per fortnight in social club fees was transferred to the social club's account by Council. The social club raises other income through conducting raffles and other activities. The club's annual expenditure was in the order of $60,000 each year.
[19] Council allowed employees to effect payments via the payroll deduction mechanism in areas other than social club fees. In the appellant's case, he authorised Council to deduct union dues and contributions to two charitable institutions as well as his social club fees.
[20] The social club is an incorporated association named in its constitution as the "Garden City Bus Depot Recreation and Social Club Inc.". A copy of the constitution is in the evidence as Exhibit 2. Clause 2 of the constitution provides that "The object of the Association shall be to maintain and encourage recreation and general friendship among its members."
[21] Clause 32(1)(a) of the constitution provides that only financial members of the Club shall be entitled to use Recreation Club facilities and equipment. Clause 32(4) provides that "visitors will be allowed to use Recreation Club equipment only if invited by a Member, and provided Members are not waiting to play or use the equipment". Clause 32(5) provides that persons who are employed by the Brisbane City Council at the Garden City Depot, and who are not financial members of the social club, cannot use any social club equipment, nor can they be invited by a financial member of the club to use any equipment.
[22] The appellant's evidence was that non-members can access computers, the library and the TV room. Non-members can also attend bar-b-ques and other social club activities if they pay a non-members fee for participation in the event.
[23] Clause 7(a) of the constitution provides that the association shall be administered by a Management Committee consisting of a president, a vice president, a secretary, assistant secretary, a treasurer, an assistant-treasurer and a Committee of five financial members. The appellant agreed that each member of the social club committee had responsibility for the range of functions to be performed. This evidence is consistent with clause 7(b) of the social club constitution which provides that:
"Each one of Management Committee members shall be responsible for one or
more of the following:(i) Recreation Club Raffles
(ii) Billiard Tables and Equipment
(iii) Library
(iv) Sub-committees
(v) Membership and Liaison".
System of Work
[24] The appellant started and finished each rostered shift from the bus depot. The appellant stated that he regularly worked "broken shifts" where he would generally have between a two or three hour break between one shift finishing and the next shift commencing. During these shift breaks, the appellant was free to do as he chose with his time, and there was no requirement for him to notify the Depot Manager of his whereabouts or to remain on Council property until the next shift commenced. The appellant agreed that he varied the manner in which he spent his time during the break between shifts. On occasions he would go home, on occasions he would stay at the social club office and complete social club activities and on other occasions he would leave the depot to go to buy items for social club events.
Accident and Injury
[25] On 10 May 2012, the appellant worked a broken shift. He commenced his first period of work at 6:53 am and stopped worked at 9:42 am. He was scheduled to resume work at 2.20pm and to work through until 7.08pm. The duration of his break between periods of work on 10 May 2012 was 4 hours and 38 minutes.
[26] During the break in work, the appellant stated that he did some work in the social club office before driving from the bus depot to Garden City to purchase cards for the social club. The appellant's evidence was that the social club regularly provided cards to members, such as birthday, bereavement or farewell greeting cards, and that the supply was low and needed to be restocked. He said that somewhere between 11am and 12 noon he left the Depot and proceeded to the Garden City Shopping Centre.
[27] The appellant initially maintained that he only went to Garden City to get cards and that there was no other reason for him to go to the shopping centre. However he subsequently stated that he also bought lunch on some of these trips and conceded that the visit to Garden City on 10 May 2012 served a dual purpose. He gave the following evidence at (T1-23):
"There was a dual purpose in going to Garden City, I'm suggesting, get the cards and get your lunch; is that right?---I was going up there primarily to get the cards. I was thinking about getting lunch like I normally do and that's what
I told the officer – whenever I told her. But not every time I go up there to get
cards I get lunch.
I didn't suggest that, Mr Eagle. All I'm suggesting is that on this particular day there were two reasons to go to Garden City: get your lunch and get the cards to stock up.
Is that a fair comment?---It could be a fair comment. Yes."
[28] Employees could also buy food and drinks from a Council-run canteen located within the depot. The appellant indicated that he would normally buy lunch at the canteen.
[29] When at Garden City, the appellant was making his way to a shop that sold cheap cards. When travelling on an escalator near Toys R Us, the appellant saw his stepson who happened to be also in Garden City at the time. The appellant stated that he had "turned to say hello to [his stepson], and the next thing I knew I was flat on me face on the escalator" [Transcript 1-17, Line 45].
[30] The appellant did not resume work on 10 May 2012 after sustaining his injury. At the time of the hearing of this matter, the appellant had not returned to work.
Purchase of Cards
[31] The appellant accepted that he had not been directed by Council management to purchase cards for the social club. He also agreed that responsibility for the purchase of cards was not his alone and the job might be completed by any member of the committee. He agreed that as at 10 May 2012 the social club had only a few cards left, but that no card needed to be despatched that day. His evidence at T1-21 was as follows:
"We do not know when we need a card, and if we don't have the cards there we're normally caught short, and that's why. And as a member of the team of the committee any one of us can go up there, and the one that decides to go up there goes up there and gets them."
[32] McVey's evidence on the subject was given at T1-29:
"Who purchases the cards?---We, as a committee, purchase the cards. So generally, if we're out and about, and we know we need cards, we'll go to Officeworks. We'll go to Big W, K-Mart, whatever, and just buy a whole group of cards, a whole range of different cards that we need.
Okay. You'll go up to Garden City Shopping Centre to do that sometimes?---
Quite often go up to Garden City Shopping Centre."[33] It was also McVey's evidence that he was not aware of any occasion or event that would have required a card to be sent from the social club on 10 May 2012. It was the evidence of Vickers-Elliott that in the event of family bereavements and some other circumstances the social club would need to issue cards at short notice. He said that it was part of his role as a member of the management committee to buy cards and other items.
Social Club contribution to Morale
[34] The appellant expressed the view that the Council derived significant benefit from the activities of the social club. His evidence in this regard is recorded at T1-18:
"What benefit, in your experience, does the council get from the social club?--- Well, the council doesn't do anything for morale or anything else in the depot, and without the social clubs in the depots your morale would be right down,
because the only time you see management in the council is when they're –
when they've got a complaint against you and they're criticising you. They're not there to be buddybuddies or to assess you or to help you really in any way."
[35] While McVey agreed that morale varied depending on the individual or person, his evidence was also to the effect that the activities of the social club enhanced camaraderie and helped maintain morale (T1-30):
"Okay. What's that benefit?---Generally camaraderie between the members,
and a bit of – lets them let their hair off, playing table tennis against each other,
or pool, or using the gym, and social outings just generally keep the morale up
of the drivers.
Okay. So it keeps the morale up of the drivers?---It does keep morale up.
So that keeps up their morale generally in the workplace?---In general, they do.
Yes."[36] Vickers-Elliott's evidence was to the effect that the benefits of social club membership was that members get to socialise with co-workers and derive enjoyment from their participation in activities. Discussions about the attractiveness of activities often leads to non-members electing to join the club.
Employer's Support for Social Club and its Activities
[37] The social club facilities are located on Council property and within the bus depot. The building within which these facilities are housed, is a council owned building. The facilities comprise a barbeque area, basketball court, library, an office area with computer access, an enclosed recreational area including TV room, pool table and table tennis table, library, and a members' only gym. The Council partially funded the purchase of some items of equipment. Council also gave the social club access to its own vehicles in particular circumstances such as to allow for the collection from a supplier of large or heavy items of gym equipment.
[38] Not all of the support provided by Council for employee amenities and facilities was for the purpose of the exclusive use by the social club and its members. Additionally some of the social club amenities and facilities were shared facilities and available for use by non-members of the social club. The Council provided a computer in the library area for the use of all employees. Council covered half the cost of the television and non-members were able to access the TV room. It was Vickers-Elliott's evidence that the library was built by Council during a renovation of the premises but some shelving was supplied by the social club while many of the books have been supplied by drivers. Further, there was a distinction between Council events and social club events.
[39] It was Vickers-Elliott's evidence that driver send-offs or award ceremonies for drivers were also included in events organised by the social club with the Council providing some help with funding. These events were attended by council management, including senior management of Council, garage staff, drivers from other depots, retired drivers, union representatives as well as bus drivers from the Garden City depot, both members and non-members of the social club. Sometimes the Council organised its own events in respect to this type of ceremony. The social club involvement in this case would normally be to purchase a gift with card or organise the catering or food.
[40] The appellant said that he was in continual contact with depot management about social club activities. Collaboration between the social club and depot management had led to Council deciding to spend $10,000 on the re-development of part of the depot site for use as a bar-b-que and entertainment area. The social club provided the bar-b-que cookers and associated equipment for use in the entertainment area. Functions held in the bar-b-que area were open to all, including visitors from head office, employees located at other depots, and non-social club members employed out of the Garden City depot. The evidence was that some of the bar-b-ques held in the entertainment area were instigated by the Council while others were held at the instigation of the social club.
[41] Some of the gym equipment was provided by Council, some provided by the City Hall gymnasium, and some by the social club. The social club is responsible for all repairs and maintenance of gym equipment. Access to the gym is limited. In the first instance only social club members can use the gym. However under Council health and safety guidelines, all users of the gymnasium must complete a physical assessment every 12 months as a pre-condition of their use of the facilities. The social club arranges for a gym assessor to attend at the gym every month for the purpose of completing assessments of persons wishing to use or continue to use the gym facilities.
[42] Council allocated the social club an office which was adjacent to the recreational area. The office was about three metres by five metres in dimension. The social club did not pay Council any rent for the use of the office however the office furniture and equipment, excluding the telephone, were supplied by the social club. Furniture and equipment included three desks, three laptop computers, three printers, a filing cabinet and a general storage cabinet. The social club covered the cost of internet and broadband access. The cost of the telephone, electricity and lighting was covered by the Council.
[43] The appellant said that the Council would assist the social club process in that "they let us get on and do it". McVey's evidence about the extent and nature of support provided by Council to the social club, including the provision by the Council of a free bus for use in the conduct of the adults Christmas party, was recorded at T1-29:
"What sorts of support?---By support, well – by giving us the office space at no
charge, a telephone at no charge, no electricity, payroll deductions for the membership fees. They give us a free bus at the end of the year for end of year social, so drivers can go to the social and not have to worry about not drinking and driving. Where the rec club provides a driver for that vehicle, and generally, some of the management committee will actually attend our functions.
…
And generally they allow us to put notices up around the depot, advertising
functions and – upcoming functions, they allow us to put it up on the poles, in
the lockers, allow us to actually do locker drops."
Submissions of the Appellant
[44] The central proposition advanced by the appellant was that if it were to be accepted that the appellant was doing social club business at the time he was injured, then he must succeed on the appeal. Four reasons were advanced supporting this proposition.
(i) Council encouraged, endorsed and supported the activities of the social club. Council also promoted and encouraged staff to attend social club functions and facilitated such attendance. In the execution of his role as social club president, the appellant was encouraged, facilitated, and enabled by Council;
(ii) The relevant authorities support the proposition that, for the appellant's injury to fall within the course of employment, it did not matter whether the appellant was directed by Council to perform the specific task or activity being undertaken by the appellant when the accident occurred;
(iii) In the circumstances of this case it was a relevant consideration that the injury was sustained by the appellant while he was completing a social club function during a break between shifts of work; and
(iv) There was an undoubted benefit to the employer in what the social club did, and what the appellant did in connection therewith.
[45] In terms of Council encouragement, the appellant submitted that it was clear on the evidence that the activities of the social club were encouraged by the employer. Importantly however the concepts of authorisation, encouragement or permission extend to and include the performance of social club functions by the appellant. The evidence supports a finding that the appellant was enabled by the Council in the discharge of his social club functions. Council's encouragement was established by a range of facts and considerations including the following:
Council provided the premises where social club amenities were located and many of the facilities from which activities were conducted including the pool table, TV room, gymnasium, and library; Council provided the social club free of rent with an office for use in the administration of social club business and also allowed free telephone use; Council assisted in the provision of amenities and equipment; Council collected social club fees via payroll deduction and remitted the
fees to the social club; Council provided support in cash and in kind; Council gave permission, and therefore encouragement, for the activities
of the social club.
[46] In terms of the need for specific direction from Council, it was submitted that it does
not matter that the appellant was not directed to perform social club duties. All of
the relevant cases involved a person undertaking what could be described as a
voluntary type act, but they were acts which were encouraged by the employer. In
1
Shirley Joy Cooper, it was submitted that the employee was not directed to attend a
Christmas party over the weekend period but elected voluntarily to do so. The
2
submission was that Shirley Joy Cooper and other decisions cited in the appellant's submissions were authority for the view that the absence of any direction from the employer regarding the particular task that led to the injury or even the prior knowledge of the employer of the task, was not an impediment to a finding that the injury had occurred in the course of employment.
[47] In addressing the significance of the accident occurring during a period between shifts of work, it was submitted that while employees could do what they liked during the period between work shifts, an overall view of the employment arrangements suggested that Council encouraged its bus drivers to remain at the depot during the break between shifts. This conclusion, it was submitted, logically flowed from the investment Council had made in on site amenities and facilities including the amenities and facilities which were maintained by the social club. It was significant therefore that the appellant's injury was sustained during the period between shifts as opposed to being sustained on a weekend when the social club activity would have been purely incidental. It was further put that the general encouragement for employees to stay at the depot and enjoy the amenities and facilities on offer during breaks between shifts translated into an encouragement for the appellant to complete social club functions during this period of time. While the appellant had a choice about how he spent his time during the break in shifts, the evidence overall supports a conclusion that the appellant was encouraged by the employer to complete social club functions.
[48] In respect to the benefit accruing to the employer from the operations of the social
club, it was submitted that there was an undoubted benefit to the employer in what
the appellant was doing. Evidence from three employees with considerable
experience in the workplace was uniformly to the effect that the activities of the
social club improved morale. It followed that if the morale of the staff is improved,
then the employer is beneficially impacted by such an outcome. It was noted that no
evidence was called by the regulator to contradict evidence given by the three
employees. As such, the appellant invited the Commission to invoke the
3
Jones v Dunkel principle and to draw an inference that Council accepted that its operations were beneficially impacted by the objects and activities of the social club.
[49] It was the appellant's view that if the social club provided no benefit or negligible benefit to the employer, Council would not have invested in the premises and the range of leisure and recreational facilities, and otherwise deployed resources supporting the activities of the social club in both cash and kind. The appellant advanced an argument to the effect that Council would need to be prudent in the allocation of its funds and consequently there would need to be some operational benefit underpinning decisions to invest monies in staff amenities and facilities.
[50] The appellant drew support from particular decisions which it described as comparatively factual. The authorities referred to were:
Hatcliffe v Q-Comp[4] Wyatt v NSW Police Department[5] Wolmar v Travelodge Australia Ltd[6] Clancy v Department of Public Health[7] [4][5][6][7]
Submissions of the Regulator
[51] The regulator conceded that the appellant was a worker at the relevant time and that he had suffered a personal injury but did not accept that his injury arose out of, or in the course of, his employment where employment was a significant contributing factor to the injury.
[52] It was submitted that while the Council did encourage the existence of the social club and encouraged the continued operation of the club by the provision of infrastructure, facilities and financial contributions, this was not the determinative issue. The question to be answered was whether the employer permitted, authorised or encouraged the appellant, or any other member of the social club, to go to retail outlets during non-work time and complete tasks such as buying cards in circumstances where the employer may not have had any knowledge of what the appellant was doing and had no control over how the appellant used the time available. In this regard it was the regulator's view that the question, on the evidence, was to be answered in the negative. That is, the Council had not permitted, authorised or encouraged the appellant to undertake some social club work in the interval between his periods of employment.
[53] It was submitted that during that four hour break between shifts on 10 May 2012, the appellant was a completely free agent. He was not required nor encouraged to remain at the depot during the break between shifts. During this period he was free to go anywhere he wished and do anything he liked. The appellant was not required to either seek permission from his employer, or notify his employer, of where he was going or what he was going to do during the four hour non-work period. The only requirement was that he be back at work for the start of the second shift.
[54] The appellant's evidence was that he would spend the time between shifts in various ways. On occasions he would go home, on occasions he would stay at the social club office and complete social club activities, and on other occasions he would leave the depot to go to buy items for social club events. On the day in question the appellant chose to stay at the depot and attend to some social club administrative tasks before heading off to visit Garden City for the purpose of buying cards and getting himself some lunch. There was no suggestion by the appellant or anyone else that the employer encouraged him to stay at the depot while he was off-duty or to stay at the depot to undertake particular functions. The purchase of cards by the appellant on 10 May 2012 was no different to him buying some cards for the social club while he was on a day off getting his groceries. There was no urgent need for the cards to be bought on 10 May. It was a routine social club activity of replenishing the stock of cards during a non-work period.
[55] President Hall's decision in WorkCover Queensland v BHP[8] was relied on. In his decision the President said:
"I accept, of course, that a mere temporal relationship between the injury and the work is insufficient. An employee who sustains an injury while on a frolic of his own in his employer's time has no entitlement to compensation. The essential notion is that of being on the job."
[8][56] It was submitted that social club activities are not part of the work as a bus driver, and that the appellant's social club activities were not the natural incidents connected with work as a bus driver. The regulator pointed out that membership of the social club and/or participation in its events was optional for drivers. It was submitted that the appellant's trip to the Garden City Shopping Centre should be characterised as "a frolic of his own". It was the appellant's choice to become part of the executive of the social club, his decision to go and buy cards. The appellant was not compelled to buy the cards and it was a task that could have been completed by anyone on the committee at any time.
[57] The regulator submitted that the Council had no involvement in the appellant's decision to buy cards and had neither directed nor requested the appellant to buy them. Further, it was likely that Council had no idea that the appellant had decided to visit Garden City to buy cards on the day of his injury.
[58] It was the view of the regulator that the appellant was encouraged to buy cards by his interest in the social club. He was not encouraged by his employer to go and buy the cards. While it was accepted that the employer encouraged the activities of the social club, the employer did not encourage the appellant to buy cards at Garden City. It was important to draw the distinction between two different concepts viz. encouraging the social club on the one hand and, on the other hand, encouraging the appellant to do some social club work during a period when he was not engaged in his employment.
[59] The regulator did not accept that any adverse inference should be drawn by the Commission arising from the decision of the regulator not to call evidence from the employer addressing the proposition that the operations of the social club were beneficial to the employer. It was submitted that the appellant bears the onus and that confirmation of the proposition was the responsibility of the appellant not the respondent.
[60] The regulator submitted that whether or not the social club provides a benefit to the employer was not a relevant consideration. The view of the executives of the social club that an employee's morale is improved as a result of membership of the social club and participation in social club activities was not supported by any objective measurement. As much was acknowledged in McVey's concession that morale varies depending on the individual. It was the view of the regulator that levels of workforce morale were not connected to membership of the social club.
Reasoning
[61] In determining whether an injury is deemed to fall within the course of employment,
9
the appropriate line of authority commences with Speechley . In this matter Dixon J concluded that: "The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorised to do in order to carry out his duties."
[62] The Speechley[10] test was subsequently reformulated in Hatzimanolis[11] where it was stated:
"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'".
[10][11]
[63] The test was further revised in Comcare v PVYW[12] where the Court concluded that:
"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."
[12]
[64] It is also accepted that the test to be applied in determining whether the injury occurred in the course of employment, must be applied in a context where 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".
[65] It follows from the authorities that the question to be answered in the determination of this matter is whether the Council induced or encouraged the appellant to engage in the particular activity arising from which his injury occurred. This question is to be answered in the context of a consideration of how the injury was brought about and after regard is had to the general nature, terms and circumstances of the employment.
[66] The appellant argued that it was undisputed on the evidence that Council encouraged and facilitated the operation of the social club and supported its activities. It followed from this that Council must have expressly or implicitly encouraged and fostered the activities of office bearers whose efforts were inextricably linked with the satisfaction of the objectives of the social club and its smooth and harmonious operation. It was unnecessary, in the appellant's view, that Council had to be seen to be issuing directions or instructions in respect to the performance of social club functions by office bearers including the appellant. The respondent on the other hand submitted that such a dimension was necessary for the requisite connection between the injury and the employment to be established.
[67] The appellant submitted that the appeal was supported by the reasoning applied in a
13
number of decisions. In Wyatt v NSW Police Department an injury suffered by a police officer while participating in the Police Games was deemed to fall within the course of employment. This conclusion was reached because the games enhanced the employer's image as a responsible and caring employer, the employer allowed the publication of information about the games on notice boards and the in-service journal, and the employer reserved unto itself the right to appoint a chairman of the NSW Police Games Council management committee. It was inferred from the right to appoint that the employer was in a position to directly influence and control the affairs of the Council to one measure or another (the constitutional objectives of the Council included conducting the games on an annual basis and promoting participation in sport among members of the police service to encourage health and fitness amongst members). The decision also took into account the fact that the employer facilitated participation in the games by rostering the employee off on the week-end of the games, and that station management extended moral support and encouragement to those who wished to participate in the games.
[68] In Wolmar v Travelodge Australia Ltd[14] an injury to an employee who slipped and fell while attending her employer's Christmas party was held to have occurred within the course of employment. This conclusion was arrived at because the party was considered a social occasion that centered around the employer-employee relationship in circumstances where the employer hosted the party to foster good relationships with employees and also between employees. The party was held on the employer's premises and attendance at the party was voluntary.
[14]
[69] In Clancy v Department of Public Health[15] a nurse was injured while playing in a football match held in the hospital grounds. The match was conducted for the purpose of assisting the wellbeing, care and treatment of patients who were encouraged to watch the match. In holding that the injury occurred in the course of employment the Court stated that an overriding feature was that
"the employer for its own purposes, and for its own advantage, encouraged the worker to come to the employer's premises and participate in the employer's organised recreational activities. Indeed, so important were these activities to the employer that on working days the employees participating therein were, in effect, paid for so doing."
[15]
[70] I consider that the facts of this case can be distinguished from the facts present in the
16
aforementioned cases. In Clancy this case is differentiated by the finding in that matter that the employer for its own purposes, and for its own advantage, encouraged the worker to come to the employer's premises and participate in the employer's organised recreational activities. Additionally had the employee not been rostered off, he would have been paid for his attendance at the game.
[71] I differentiate Wolmar[17] for a number of reasons. Firstly Wolmar[18] was decided by applying a test different to the test to be applied in this matter following the
[17]
[18]
19 20 21
principles enunciated in Hatzimanolis and Comcare v PVYW. In Wolmar, the Court decided the matter by asking the question whether the worker was doing something incidental to the performance of his work. More significantly the party in question was organised by the employer and held on the employer's premises and that, in attending the party, the employee was responding to an invitation from her employer and was co-operating with a desire by the employer to improve relationships all round. Additionally, the Court also formed the view that the average worker would consider attendance at the annual Christmas party to be "part of the job" a conclusion which implies that there was an expectation that the employee attend an event of some special significance.
[72] In Wyatt[22], differentiating facts include that the employer was in a position to exercise significant control over the affairs of the Games Council, the employer encouraged the employee's participation in the games, and the employer adjusted the roster of the employee to ensure that she could participate in the games.
[22]
[73] The case of Shirley Joy Cooper[23] was also referred to in the proceedings. In this matter the employee (Cooper) was employed by a nursing home. In the lead up to Christmas she volunteered to assist with the preparation and conduct of a Christmas party which the employer proposed to conduct for residents and their families at the Nursing Home. In providing assistance Cooper carried out many tasks such as setting and decorating tables, running food from the kitchen, clearing tables, stacking plastic chairs, dismantling tables and interacting with residents and their families. The key distinguishing factor however is to be found in the President's
decision wherein he determined that Cooper’s voluntary participation in the event
was actively sought by her employer:
"Here, Ms Cooper's participation was not merely authorised or expected. It
was sought. Further, the employer used monthly meetings of employees and
the Communication Book used for communication between shifts to seek staffvolunteers."[23]
[74] The decision of the NSW Court of Appeal in Haider v JP Morgan[24] is relevant. In this matter the employee was employed by JP Morgan Holdings Australia Ltd when he went on a harbour cruise organised by an unincorporated association known as the "JP Morgan Social Club". As the cruise vessel was turning to dock, the employee slipped, fell into the water, and drowned. His wife subsequently made a claim for workers compensation benefits. The decision appealed against had concluded that the employees death did not arise out of, or in the course of, employment on the basis that while the employer permitted and authorised the activities of the social club, it had not organised them, nor taken active steps in encouraging or inducing employees to participate in them. The decision in the first instance had also distinguished between activities of the social club and activities which were events sponsored by the employer. Sponsored events were events organised by the employer which involved marketing and co-ordination by staff, the use of firm logos and other forms of identification, and which were funded by the employer. The Court of Appeal noted that underlying the reasoning of the original decision were two distinctions. One was a distinction between support for the social club generally and support for a particular activity organised by the club; the other was a distinction between activities of the social club and activities organised by the employer itself.
[24]
[75] A question to be decided in this matter is whether similar distinctions should be drawn. That is, should the general support and encouragement of the Council for the social club and its on-going activities be distinguished from encouragement and support for specific functions of members or elected officers of the club which are undertaken as part of the normal conduct of social club activities? The regulator emphasised such a distinction and argued that the particular question to be answered was not the general question of whether the council encouraged the social club but the particular question of whether the employer encouraged the appellant to go to Garden City during non-work time and buy cards for social club use.
[76] However it was the position of the appellant that the employer’s encouragement
extended beyond the generalized support for the institution and included the enabling of the appellant in his discharge of social club functions. The question to be answered should be answered in a broader context where the council contributed substantial resources to ensure the effective functioning of the social club, where council worked collaboratively with the social club, and where council derived significant benefits from the activities of the social club.
[77] In my view while the submissions of the appellant are clearly relevant, the determinative considerations in this particular case relate to the particular circumstances attaching to the activity being undertaken by the appellant at the time that he was injured. These circumstances include that the appellant was not engaged in a period of work; the appellant was free to go anywhere he wished and do
anything he liked during his non-work period; the appellant’s decision to visit the
shopping centre to buy cards and to get lunch constituted a purely personal decision and was not arrived at in consultation with his employer; there was no direction from Council about how or when particular social club functions should be undertaken, nor did Council encourage or induce the appellant to go to the shopping centre. Further, the appellant was not required to either seek permission from his employer, or notify his employer, of where he was going or what he was going to do during his non-work period. These considerations lead to a conclusion that the
appellant’s injury was not sustained within the course of employment.
[78] The appellant argued that the employer encouraged its employees to stay on the premises during the breaks between shifts. This was evidenced by the facilities and amenities provided which, it can be inferred, were provided for the rest, comfort, relaxation and recreation of drivers during periods of non-work. While a finding in this area is not determinative, I am not persuaded by this line of argument. Given that broken shifts were a regular feature of the working arrangements I think that it is good human resource practice for the employer to provide a facility for employees in the event that they do not wish to leave the depot during a broken shift. I don't think it can be correctly inferred that the decision to provide amenities in these circumstances amounts to a positive encouragement of employees not to leave the depot. There was no suggestion in these proceedings that Council encouraged employees not to leave the depot during the period between broken shifts. On the contrary, the evidence was that employees could do whatever they wanted during the off-work period.
[79] The evidence does not support a finding that there was any correlation between the activities of the social club and the morale of the council workforce employed out of the depot. While the three employees giving evidence expressed an opinion to this effect, the evidence was not compelling and no reference was made to studies or surveys or other objective mechanisms which would have supported a finding that there was a positive correlation between the on-going activities of the social club and workforce morale. Notwithstanding this I accept that the activities of the social club do contribute beneficially to the employer's operation overall. I also accept that the provision by the employer of leisure and recreational facilities such as a library, television room, pool room and gymnasium, assist the employer in managing adverse effects on employee retention and recruitment that might arise from the operation of broken shifts.
[80] Each case turns on its own particular facts. The question to be answered in this case is whether the appellant, when he was injured, was doing something that the employer encouraged or induced him to do. On the facts of this case, I am unable to answer this question in the affirmative. I accept the regulator's submission that the correct application of the law requires the Commission to draw a distinction between the Council's encouragement and support for the activities of the social club on the one hand, and the specific activities of social club members or social club committee members on the other hand. Despite the very skilful advocacy of Counsel for the appellant, I am unable in this case to conclude that the test of sufficiency between the employment and the injury has been satisfied.
[81] In my view the appellant was in essence "off on a frolic of his own" when he elected to visit the Garden City Shopping Centre on 10 May 2012. He was not responding to any direct or implied encouragement or inducement from Council to spend his time during the interval off work in a particular way. In the circumstances the appellant was not within the course of his employment when his injury was sustained. Nor did the injury arise out of his employment as a bus driver. It follows that his employment was not a significant contributing factor to his injury.
[82] The appeal is dismissed and I reserve the question of costs.
[83] I order accordingly.
[1] Mr Ronald Eagle ("the appellant") is employed as a full-time bus driver by the Brisbane City Council ("Council"). On 10 May 2012, the appellant was on a four- hour break between shifts when he left his place of employment and drove to the Garden City Shopping Centre ("Garden City") which is located about 600 metres from his workplace. While he was at Garden City, the appellant fell when travelling up an escalator and injured himself.
[2] At the time of his accident the appellant had been employed by the Council for approximately 25 years and had been based at the Garden City Bus Depot ("the depot") for approximately 20 years. The appellant was also the president of the Garden City Bus Depot Recreation and Social Club Incorporated (social club).
[3] The injuries sustained by the appellant in the fall on the escalator were a cut to his right hand which required 18 stitches, a broken right wrist and a tear of his right rotator cuff tendon. The appellant required surgery for the injury to the right rotator cuff.
[4] On 16 May 2012, the appellant lodged an application with WorkCover ("the Insurer") for workers' compensation. On 30 July 2012, the Insurer determined to reject the appellant's claim on the grounds that the injury did not occur in the course of his employment, and that his employment was not a significant contributing factor.
[5] On 29 October 2012, the appellant lodged a request for a review of the Insurer's decision with the Review Unit of the Workers' Compensation Regulator ("the regulator"). By its decision dated 13 December 2012, the regulator confirmed the Insurer's decision to reject the appellant's application for workers' compensation.
[6] The appellant now appeals the decision of the regulator pursuant to s. 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
1
Shirley Joy Cooper and Q-COMP (C/2010/38) - Decision - <
2
Shirley Joy Cooper and Q-COMP (C/2010/38) - Decision - <
3
Jones v Dunkel [1959] HCA 8.
Hatcliffe v Q-COMP (C/2006/76) - Decision - <
Wyatt v NSW Police Department (1996) 13 NSWCCR 429.
Wolmar v Travelodge Australia Ltd (1975) 26 FLR 249.
Clancy v Department of Public Health (1962) NSWR2
WorkCover Queensland v BHP (2002) QIC 27
9
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126.
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126.
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
Comcare v PVYW [2013] HCA 41.
13
Wyatt v NSW Police Department (1996) 13 NSWCCR 429.
Wolmar v Travelodge Australia Ltd (1975) 26 FLR 249.
Clancy v Department of Public Health (1962) NSWR2.
16
Clancy v Department of Public Health (1962) NSWR2.
Wolmar v Travelodge Australia Ltd (1975) 26 FLR 249.
Wolmar v Travelodge Australia Ltd (1975) 26 FLR 249.
19
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473.
20
Comcare v PVYW [2013] HCA 41.
21
Wolmar v Travelodge Australia Ltd (1975) 26 FLR 249.
Wyatt v NSW Police Department (1996) 13 NSWCCR 429.
Shirley Joy Cooper and Q-COMP (C/2010/38) - Decision - <
Haider v JP Morgan Holdings Aust Ltd Trading as JP Morgan Operations Australia Ltd [2007] NSWCA
0
4
0