FAI General Insurance Co Ltd v University of Queensland, Workers' Compensation Board

[1997] QCA 259

IN THE COURT OF APPEAL	[1997] QCA 259
SUPREME COURT OF QUEENSLAND

Appeal No. 7300 of 1996

Brisbane

[FAI v. UQ & WCB]

BETWEEN:

FAI GENERAL INSURANCE COMPANY LIMITED

ACN 000 327 855

(First Third Party) Appellant

AND:

THE UNIVERSITY OF QUEENSLAND

(Defendant) First Respondent

AND:

WORKERS' COMPENSATION BOARD OF QUEENSLAND

(Second Third Party) Second Respondent

BARBARA KER TAHOURDIN

(Plaintiff)

McPherson J.A.
Davies J.A.

Moynihan J.

Judgment delivered 26 August 1997

Joint reasons for judgment of Davies J.A. and Moynihan J.; separate concurring reasons of McPherson

J.A.

APPEAL DISMISSED. SECOND RESPONDENT TO HAVE ITS COSTS OF THIS
APPEAL; NO SUCH ORDER IN FAVOUR OF THE FIRST RESPONDENT.

Workers' Compensation Act 1916 - whether appellant or second respondent was obliged to indemnify the university.

Hatzimanolis v. ANI Corporation Ltd. (1992) 173 C.L.R. 473
Hay v. Liverpool City Raceway Pty. Ltd. (1980) 143 C.L.R. 672
Landers v. Dawson (1964) 110 C.L.R. 644

Workers' Compensation Act 1916, s.9(1)

Counsel:	Mr. S. L. Doyle Q.C. for the appellant Mr. D. M. Logan for the first respondent Mr. J. A. Griffin Q.C., with him Mr. A. M. Warnick for the second respondent
Solicitors:	Clayton Utz for the appellant Allen Allen & Hemsley for the first respondent Hill & Taylor for the second respondent
Hearing Date:	23 May 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 7300 of 1996

Brisbane

Before McPherson J.A.
Davies J.A.
Moynihan J.

[FAI v. UQ & WCB]

BETWEEN:

FAI GENERAL INSURANCE COMPANY LIMITED
ACN 000 327 855

(First Third Party) Appellant

AND:

THE UNIVERSITY OF QUEENSLAND

(Defendant) First Respondent

AND:

WORKERS’ COMPENSATION BOARD OF QUEENSLAND

(Second Third Party) Second Respondent

BARBARA KER TAHOURDIN

(Plaintiff)

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 26 August 1997

I have read and agree with the reasons of Davies J.A. and Moynihan J. for dismissing this

appeal and making the costs order they propose.

The difficulties, such as they are, in the case seem to me to stem at least in part from the fact that

at the trial the parties accepted that the appellant was an “employee” of the defendant University. The

definition of “worker” in s.3(1) of the Workers’ Compensation Act 1916 takes as its starting point a

person who works under a “contract of service”. According to prevailing notions, such a contract does

not, or does not ordinarily or necessarily, include a person who is an independent contractor working

under a contract for services. See the discussion in Hay v. Liverpool City Raceway Pty. Ltd. (1980)

143 C.L.R. 672.

There is, in my opinion, some basis for suspecting that the plaintiff answered the latter description. However, because this question was not an issue in the court below, it is not possible or appropriate to pursue it on the appeal now before us. For the same reason, it should not be assumed that this decision is authority for saying that the plaintiff here was in fact and in law a “worker” within the meaning of the Act. The contest being one between two insurers concerning liability to satisfy the amount of the judgment, our decision will in the end not affect the rights of the plaintiff, who, as Davies J.A. and Moynihan J. have noted, is not a party to the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 7300 of 1996

Brisbane

Before McPherson J.A.
Davies J.A.
Moynihan J.

[FAI v. UQ & WCB]

BETWEEN:

FAI GENERAL INSURANCE COMPANY LIMITED

ACN 000 327 855

(First Third Party) Appellant

AND:

THE UNIVERSITY OF QUEENSLAND

(Defendant) First Respondent

AND:

WORKERS' COMPENSATION BOARD OF QUEENSLAND

(Second Third Party) Second Respondent

BARBARA KER TAHOURDIN

(Plaintiff)

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND MOYNIHAN J.

Judgment delivered 26 August 1997

The plaintiff in this action, who is not a party to this appeal, was employed by the first

respondent, the University of Queensland, as a consulting editor for the University of Queensland Press.

She commenced working for the University of Queensland Press in Sydney on a part-time basis in

1984 and came to Queensland to work for it in 1989. Her injuries out of which these proceedings
arose occurred on 28 November 1989 on the premises of the University.

At the time of her injuries the plaintiff was a resident of Cromwell College, also on the premises

of the University. Her accommodation there was provided as part of her remuneration. In addition to

living there she performed most of her work there in an office which was part of her accommodation.

This was of mutual convenience to her and University of Queensland Press as the latter's premises were

overcrowded and, from her point of view, less conducive to most of the work which she did. She was

employed to perform specific tasks of an editorial nature. Her hours of work and place of work were,

it seems, left entirely to her, the only qualification being that it amounted, in total, to three to four days

a week. Although the original letter which offered her a contract for a year spoke of her spending at

least two days of each week at the office of University of Queensland Press it also spoke of the

"keynote" of the arrangement being flexibility and it is plain that, in the end, there was no requirement

that she spend any specific time at that office. Her practice was to attend the office of University of

Queensland Press each day, sometimes twice, to collect and send mail and to make telephone calls,

some of them to overseas, in connection with her work. On other specific occasions she would go there

to meet people, usually authors, with whom she was working.

Some time prior to 28 November the plaintiff had commenced swimming at the University pool.

She had been encouraged to take it up by some of her friends who happened to be fellow employees.

However her swimming was unconnected with her employment. Some attempt was made at the trial

to suggest that her employer encouraged her in this pursuit but the weight of evidence was against it and

the learned trial Judge rightly refused to accept it.

On the day of her injury the plaintiff had arranged to have a swimming lesson for half an hour

at the pool. It is not clear whether she had previously had swimming lessons there; she thought she may

have had one. However prior to that date she went to the pool once or twice a week at times when she thought it would not be crowded. Her injuries occurred when she was walking across a grassy area

to the pool fence to see if it was sufficiently uncrowded for her to take her lesson in comfort.

This was at about 3.30 in the afternoon. In the morning she had worked in her office at

Cromwell College. From there she was picked up by friends and driven to Toowong where they had

lunch. She was then driven back to Cromwell College where she changed for her swimming lesson.

It had been her intention, after her swimming lesson, to go on to the University of Queensland Press

office to deposit some correspondence for posting. She did not intend to work there but "if something

cropped up, I would get on with it". Had she just intended to go to the office she may have walked.

Whether she walked or drove from Cromwell College to University Press, it seems, depended on how

much she had to carry. Her normal driving route from Cromwell College to University Press did not

take her past the swimming pool. Because she intended to go both to the pool and to the University

of Queensland Press office she drove her car. After she had attended to whatever was necessary at

the office she would have returned to Cromwell College where she may have continued working for her

employer or may have worked on a novel she was then writing in her own time.

The sole question in this appeal is whether the plaintiff's injuries arose out of or in the course of

her employment within the meaning of s.9(1) of the Workers' Compensation Act 1916. If they did the

second respondent, the Workers' Compensation Board of Queensland, was obliged to indemnify the

University in respect of the damages and costs which it was obliged to pay the plaintiff. If they did not

the appellant, FAI General Insurance Company Ltd., was obliged to so indemnify the University. The

issue in the appeal is which of the insurers is liable to indemnify the University.

Three bases are put by the appellant for its contention that the injuries arose out of or in the course of the plaintiff's employment. The first is that the phrase "in the course of the employment" in s.9(1) extends to injuries suffered during intervals between periods of work even though there was no

causal connection between the duties of the employee and the injuries; and that these injuries were

suffered during such an interval. The second is that the combined effect of s.9 sub-ss.(1A)(b)(i) and

5(a) is that the injuries so arose because they occurred while the plaintiff was travelling between her

place of abode and place of employment in circumstances in which there had been no substantial

interruption of or deviation from that journey. And the third is that, by s.9(1A)(a)(ii), an injury is

deemed to arise out of or in the course of a worker's employment if it occurs while the worker, having

been present at her employment, is temporarily absent from it during an ordinary recess and does not,

during that recess, voluntarily subject herself to any abnormal risk of injury; and that that was so here.

It is convenient to consider those contentions in that order in the light of the facts stated above.

It should be noted at the outset that it was accepted by the second respondent both below and

in this Court that the plaintiff was a worker within the meaning of the Act notwithstanding strong

indications from the evidence that her relationship with the University was one of independent contractor

as the members of this Court pointed out during the course of argument.

1.          Were the injuries sustained "in the course of the employment" because they were sustained in an interval between periods of work?

It was common ground before this Court that this question should be determined by the

application of principles stated in Hatzimanolis v. ANI Corporation Ltd.[1] to the facts stated above. In
the court below his Honour reached the tentative conclusion that:

[1] (1992) 173 C.L.R. 473.

"Accepting the plaintiff's evidence that she was intending to proceed to the University Press offices after her swimming lesson in order to post some correspondence, and also the fact that, whilst there, she might well be responding to telephone messages or other matters requiring her attention, it may be proper to conclude that the period which the plaintiff intended to spend at the swimming pool, an intention which she had begun to implement, should be regarded as an interval or an interlude within an overall period or episode of work, rather than an interval between discrete periods of work."

There is much to be said for his Honour's tentative conclusion and that conclusion appears to

have been, at least implicitly, accepted as correct by both respondents. Accordingly as it is primarily

one of fact we think this Court should accept it as correct.

However as Hatzimanolis makes clear, not all injuries sustained during such an interval or

interlude are within the course of employment. Injuries sustained in such an interval or interlude will

ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has

induced or encouraged the employee to spend the interval or interlude at a particular place or in a

particular way.2 In the present case the appellant sought to prove that University of Queensland Press

expressly or impliedly induced or encouraged the plaintiff to use the swimming pool. However, as we

have already indicated, that attempt failed.

That is not necessarily the end of the matter if it could be shown that, in some other way, there

was a sufficiently close connection between the plaintiff's going to the swimming pool and the course of

her employment that day. However we do not think that that can be shown. Permission, the only other

possible factor which could indicate that what was done was in the course of employment, could never

arise in this case because the plaintiff needed no permission to do what she was doing or when or where

she did it provided she worked for three or four days a week and, more importantly, completed the work she was asked to do. Her employer did not have sufficient control over her manner of work to

make permission relevant.

In our view the learned primary Judge was therefore correct in rejecting, on this basis, the

contention that the plaintiff received her injury in the course of her employment within the meaning of

s.9(1).

2.          Was she travelling between her place of abode and her place of employment in circumstances in which there had been no substantial interruption of or deviation from that journey?

This contention was quickly rejected by the learned primary Judge and in our view rightly so.

Although the commencement point of her journey was her abode at Cromwell College and her ultimate

destination was her office at University of Queensland Press it could not be said, in more than a very

general sense, that she was travelling between her place of abode and place of employment. Her

intended purpose that afternoon was as much to have her swimming lesson as it was to go to the office.

And even if it could be said that relevantly the injuries occurred while travelling between her place of

abode and her place of employment they plainly occurred during both a substantial interruption to and

a substantial deviation from that journey. The substantiality in both cases was, of course, a matter of

degree. As to interruption, it was submitted by the appellant that as the swimming lesson would take

only about 30 minutes, the interruption was not substantial. That is too narrow an approach. In the first

place, no doubt, the total time, including changing after the swim would have been longer than that. But

2             At 408.

in addition one must take into account the nature of the activity; it was not of a kind which would

ordinarily be an insubstantial interruption of such a journey such as stopping at a shop or a service

station. And it is relevant in considering the substantiality of the interruption that it had been pre-planned

as an independent and separate activity from whatever was to be done at the place of work.

As to deviation, it is no doubt correct to say that, in terms of absolute distance this was not

great. But in relative terms it seems it was and, in determining that question, it is relevant that, not only

was this not the direct route between Cromwell College and University of Queensland Press Office but

that, had the plaintiff intended to go merely from Cromwell College to the office, she might well have

walked.

In fairness to the appellant it should be said that this basis was not pressed in oral argument.

3.          Was the plaintiff, having been present at her employment, temporarily absent from it during an

ordinary recess?

It is plain that this test is inapplicable to the nature of the plaintiff's work. The flexibility and the

lack of structure of her ordinary working day meant that there were no breaks in her work which one

would normally call a "recess". As the High Court accepted in Landers v. Dawson3 the term is normally

understood to refer to a relatively brief interruption in an otherwise continuous period of work; morning

or afternoon tea, lunchtime or "smoko". There were no ordinary recesses in the plaintiff's day or at least

none of which evidence was given. In any event the plaintiff had last worked before lunch and her

accident occurred at about 3.30 p.m.

It follows that the appeal must fail and should be dismissed. The second respondent should have its costs of this appeal. But for reasons which appear from the course of argument on the hearing, namely that, at all relevant times it was plain that one or other insurer was liable, there should be no such

order in favour of the first respondent.