Ford and Comcare (Compensation)
[2021] AATA 2170
•2 July 2021
Ford and Comcare (Compensation) [2021] AATA 2170 (2 July 2021)
Division: GENERAL DIVISION
File Number(s): 2016/5154
Re:Matthew Ford
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:2 July 2021
Place:Hobart
The Tribunal sets aside the decision under review. The matter is remitted for consideration by the Respondent taking into account the Tribunal’s finding that the Applicant’s injury arose out of his employment.
...................[sgd]...................................................
A G Melick AO SC, Deputy President
SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (Cth) – Compensation – Causal connection between injury and employment – Entry and exit from place of employment – Land of a third-party – Arising out of employment– decision under review is set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth); Safety, Rehabilitation, Compensation and Other Legislation Amendment Act 2011 (Cth).Cases
Ayling v Wende Bros [1962] 1 WCB (WA) 193
Charles R Davidson and Co v M’Robb (1918) AC 304
Comcare v PVYW (2013) 250 CLR 246
Danvers v Commissioner for Railways (1969) 122 CLR 529
Ford v Comcare [2018] FCAFC 127Ford and Comcare (Compensation) [2018] AATA 648
Foster v Edwin Penfold & Co Ltd. [1934]
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Holness v McKay & Davis [1899] 2 QB 319
Jenkins v Elder Dempster Lines [1953] 2 All ER 1133
Stewart vMetropolitan Water Sewerage & Drainage Board (1932) 48 CLR 216
Stewart and Son(1912) v Longhurst [1917] AC 249
Lawrence v George Matthews [1929] 1KB 1
Learmonth v H. & a. Bag Company [1944] WCR 131
McCullum v Northumbrian Steam Shipping Company Ltd (1932) 48 TLR 568
Mendez v Telstra Corporation (1998) 147 FLR 394, 395.
Sparey v Bath Rural District Council [1931] UKHL J0101-1
Telstra v Bowden (2012) 206 FCR 207
Vandyke v Fender and Anor [1970] 2 QB 292, 309.
Weaver v Tredegar Iron and Coal Co ltd [1940] 3 All ER 157REASONS FOR DECISION
A G Melick AO SC, Deputy President
2 July 2021
INTRODUCTION
Background
The Applicant suffered an injury to his right eye and face when entering his place of employment. He contended that his injury arose out of or in the course of his employment which was disputed by the Respondent.
This matter has previously been before the Tribunal but was remitted by the Full Court of the Federal Court which noted:[1]
It is uncontentious that the applicant suffered an injury affecting his right eye and surrounding facial bones on 22 March 2016 when he fell on the stairs in a building at 720 Bourke Street Melbourne. It is common ground between the parties that, before the Tribunal, the applicant contended that his injury arose “out of employment” and gave some prominence to the judgement in Telstra Corporation Limited v Bowden (2012) 206 FCR 207 per Murphy J. The applicant’s case before the Tribunal was generally consistent with what are sometimes described as “entry and exit” workers’ compensation cases; namely that the applicant had a duty to attend the place of his employment at 720 Bourke Street Melbourne, and in performing that duty he entered the building at that address. He was there for an employment-related purpose and not for a private purpose, and his chosen route up the stairs from the street was one of a range of routes available to him as an employee. It was also put to the Tribunal that the applicant’s access to the building was pursuant to a contractual licence under CASA’s lease of its premises in the building, distinguished his access from that of a member of the public.
[1] Fordv Comcare [2018] FCAFC 127.
This matter has caused me considerable difficulty especially when balancing the application of the doctrine that the Safety Rehabilitation and Compensation Act 1988 (the Act) should be interpreted beneficially in relation to employees, and the law relied upon by the Respondent.[2]
[2] Telstra Corporation Ltd v Bowden (2012) 206 FCR 207, 214 (Telstra v Bowden).
Facts
The Applicant was an employee of the Civil Aviation Safety Authority (CASA), working as a Certificate Management Team Leader on a permanent, full-time basis.
His place of work was in the CASA offices on the 13th level of 720 Bourke Street, Melbourne. Access to that level was by a lift from a reception area on the second level of 720 Bourke Street.
The reception area lifts could be accessed by any of the following means:
(a)Entry by the Bourke Street level and take a lift to the reception level (Entry 1); or
(b)Entry by the Bourke Street level and walk around the blue internal concourse which was a ramp following on a regular elliptical course up the two levels (Entry 2); or
(c)Entry by climbing the stairs which are part of the common area of 720 Bourke Street, connecting the Bourke Street level to glass doors opposite what was then Etihad Stadium (now Marvel Stadium), opening onto the above-mentioned reception area (Entry 3).
Each of the above means of access are part of the common areas of the building, which includes the ground and concourse foyers, all stairwells and the central access ramp.
In an email to staff, advising of an office move to 720 Bourke Street, dated 11 February 2016, CASA advised:
Taxis are likely to drop people off at the Bourke Street entry into the building. From that level walk up the central M access ramp or catch a lift to the concourse level main reception. From there catch a lower lift to level 13.[3]
[3] T-Documents, T4, 26-7; supplementary T-Documents, ST13, 768.
CASA’s tenancy only covered part of level 13.
Although only the first two methods of entry referred to at paragraph [6] were referred to by CASA, there was no suggestion that the third method of entry was not approved. That means of entry was available to the general public at all relevant times.
The Applicant was required to pass regular medicals in order to retain the licenses required to undertake his work. Accordingly, he was keen to maintain his fitness and hence preferred to take the stairs rather than the lift or ramp. He also maintained other methods of retaining his fitness including gym attendances.
There was no evidence to suggest that his employer prohibited him accessing the building by way of the stairs and there was no evidence to suggest that the employer was not aware of him using such a method of ingress.
CASA’s lease makes no specific reference to it or its employees being permitted to use the common areas. However, item 17.1 of the building rules provided, inter-alia, that CASA must only use facilities in the premises and in the common area for their proper purpose.
It was agreed that the route taken by the Applicant was one which was accessible to members of the public at all times, unless closed off; and the building signage present in the precinct directed members of the public to access the route taken by the Applicant. Furthermore, the stairs had never been closed off since the commencement of CASA’s lease.
In view of the foregoing, and in the absence of a prohibition of utilising the common area, I find that CASA and its employees were entitled to use the common areas for non-commercial purposes, including access to and from the building. Those common areas include the stairs used by the Applicant.[4]
[4] E4, Peter Callow statement, 1.
On 22 March 2016 the Applicant adopted Entry 3 as a means of entry to the building. When climbing the stairs, he fell, which caused upper eyelid lacerations and a supraorbital fracture.
During oral submissions the following matters were, confirmed, agreed, or conceded:
(a)The lease provided that the Bourke Street stairs, on the eastern side of the building, formed part of the common area which was controlled by the landlord’s building management. Access could also be gained by stairs on the western side of the building.
(b)There was no prohibition upon the Applicant to use the steps by way of entry to his workplace.
(c)The stairs were open to the public, although the landlord had the right, apparently not exercised prior to the accident, to restrict access for at least one day per year, presumably to preclude the arising of a prescriptive right.
(d)However, such a restriction could cause the landlord to be in breach of a lease to an adjacent gym which provided for access at all times. This possible breach could be avoided by closing off only access by the eastern stairs, leaving the western staircase open.
(e)At one stage counsel for the Applicant conceded that if the area upon which the Applicant fell was a public place with no restrictions and with no possible restrictions, the Applicant will fail. I do not rely upon that concession as it is inconsistent with what I have found to be the applicable law.
ISSUES
Is the Applicant entitled to compensation pursuant to s 14 of the Act because he sustained an injury arising out of, or in the course of, his employment?
LEGISLATION
The relevant provision governing the circumstances where Comcare is liable to pay compensation for an injury suffered by an employee is s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Section 14(1) states:
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
Section 5A of the SRC Act defines injury:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Place of work is defined in s 4(1) of the SRC Act:
place of work, in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.
The version of the SRC currently in force contains the relevant sub-ss 6(1)(d) and 6(1C) which read:
(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of or in the course of, his or her employment…
…
(d) while the employee was, the direction or request of the Commonwealth or a licensee, travelling for the purpose of that employment
…
(1C) the purpose of paragraph 1d travel between the employer's residence and the employee's usual place of work is taken not to be at the directional request of the Commonwealth or a licensee.
Section 6(1) qualifies a series of circumstances in which an injury is taken to have arisen out of, or sustained in the course of, employment. The Tribunal notes that in 2007 and 2011 amendments were made to the SRC Act that repealed subsections contained with sub-s 6(1) which made specific provision for travel from an employee’s residence to place of work as arising out of, or occurring in the course of, employment.[5]
[5] Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth); Safety, Rehabilitation, Compensation and Other Legislation Amendment Act 2011 (Cth).
The effect of the above is as follows:
(a)An injury may be treated as having arisen out of or in the course of an employee’s employment.
(b)One circumstance that could lead to an incident occurring in the course or arising out of any employment is that which is set out in sub-s 6(1)(d), which itself is limited by sub-s 6(1C). However, sub-s (1C) only limits sub-s 1(d) and cannot limit sub-s 6(1).
Accordingly, the questions to be determined are as follows:
(a)Had the Applicant in fact reached his place of employment?
(b)If the Applicant had not reached his place of employment, was the fact that the route taken was one open to the members of the public relevant?
(c)Did injury arise out of or in the course of the Applicant’s employment?
CONTENTIONS
The Applicant contended that the injury arose out of, or in the course of, his employment because:[6]
(a)He had to make entry across private land in order to fulfil his employment duty to attend his place of work. Having done so, he bought himself within the sphere of employment by reason of that duty. The employer was under a correlative duty in law to provide safe means of entry and exit. The employer's duty is not limited to land under its direct control.
(b)In making entry across that private land, having left the public highway, the employee did so, not as a member of the public, but by right given expressly or by implication through the lease obtained by the employer with the landholder. In other words, the Applicant contended that he was not using the stairs as a member of the public, but was effecting a permitted ingress to his place of employment.
(c)The employee was within the course of employment once effecting entry across such land and suffered injury in the course of, and arising out of, the employment; and
(d)The hazard of tripping or falling on stairs was encountered by reason of his fulfilling a duty to his employer and arises from his employment.
[6] Applicant’s statement of facts, issues and contentions (SOFIC), 4.
The Respondent contended that the Applicant's injury was sustained whilst travelling prior to the commencement of work, before he reached his place of work, at a time when:[7]
(a)he was moving through a place which is not part of his employer's premises;
(b)members of the public enjoyed unrestricted access to that place;
(c)that because he did not have access only by virtue of his status as an employee, he could not, properly be regarded as being ‘in the course of employment’; and
(d)as a consequence, the injury could not properly be regarded as having arisen’ out of his employment’.
ANALYSIS
[7] Respondent’s SOFIC, 4 [22].
Had the Applicant in fact reached his place of employment?
The Applicant contended that he had an explicit, or if not, an implied, right or license derived from the lease agreement between CASA and the landlord. In Stewart & Son (1912) v Longhurst, Lord Finlay LC endorsed the dissenting judgment of Romer LJ in Holness v McKay and & Davis:
The men were bound by the necessities of their employment and as part of its duties and dangers to cross the lines and to have, through the appellants, a special right or license from the railway company to cross them; that special right or license from the railway company to cross them; that special right or license being given by implication. When the workman began to cross the lines, they were acting under this right or license obtained for them by the appellants; they were doing something which they were specially bound to do under their contract of employment, and which they could not lawfully do but for that contract.[8]
[8] [1899] 2 QB 319, 328 (Romer LJ).
In Stewart and Son v Longhurst, Lord Finlay LC further stated:
Actual ownership or control by the employer of the spot where the accident occurred is not essential. The workman comes there on his way to and from his work, and he may be regarded as in the course of his employment while passing through the dock or other open space to and from the spot where his work actually lies. Such passage is within the contemplation of both parties to the contract as necessarily incidental to it.[9]
[9] Stewart & Son (1912) v Longhurst [1917] AC 249, 253 (Lord Finlay LC).
Although the CASA offices are on the 13th floor, access could only be gained by arriving at and passing through the property of the landlord, so I consider it highly artificial to suggest that once entering the landlord’s property, the Applicant had not reached his place of work. In view of the findings made below, I do not consider it necessary to make a final determination in relation to this question.
If the Applicant had not reached his place of employment was the fact that the route taken was one open to the members of the public relevant?
In several of the authorities raised by the Respondent and the Applicant, the public or private nature of the locality where the injury is sustained is relevant to finding a compensable injury.
In these authorities, there is often a distinction made between an employee acting in their capacity as an employee, and an employee who has not yet reached their employment and exercising the same rights as a member of the public.
In Weaver v Tredegar Iron and Coal Co ltd (Weaver), Lord Romer stated:
In all cases, therefore, where a workman, on going to, or on leaving, his work, suffers an accident on the way, the first question to be determined is whether the workman was at the place where the accident occurred in virtue of his status as a workman or in virtue of his status as a member of the public.[10]
[10] [1940] 3 All ER 157, 175 (Lord Romer) (Weaver).
In Stewart and Son (1912) Ltd v Longhurst, Lord Dunedin noted that:
when a man walks along the public streets to get to his work he is doing something which he has a perfect right to do irrespective altogether of his employment. The right does not spring from his employment at all. It belongs to him as a member of the public.[11]
[11] (n 8) 256.
The Respondent conceded that the ‘course of employment’ may in some circumstances extend to the use of a special means of accessing an employer’s premises, but only if the means of access is not available to ordinary members of the public, but derives, instead, wholly from the relationship between the employer and employee.[12]
[12] Respondent’s SOFIC [28].
The Respondent relied on a series of UK authorities to support the claim that the ‘course of employment’ extends to employment access only in circumstances where the right of access is not available to ordinary members of the public:
(e)In Stewart and Son v Longhurst, where the Court held that the workman was found to be on the dock where his accident took place solely by virtue of his employment.[13]
[13] John Stewart and Son v Longhurst (n 8).
(f)In Charles R Davidson and Co v M’Robb or Officer, where Viscount Haldane observed that the risks that the employee was exposed to on the dock were not different to those of the general public, nor did they arise out of his employment, and therefore they were not compensable.[14]
[14] [1918] AC 304, 318.6 (Viscount Haldane).
(g)In Weaver, Lord Romer, with reference to the decision in Stewart and Son v Longhurst, and the dissenting judgment of Lord Finlay in Charles R Davidson & Co v M’Robb, stated that the settled authority of the House of Lords is that:
After a workman has finished his day’s work and starts out on his way home, his employment continues while he is traversing the premises on which he has been working and any private means of access thereto which he is only entitled to use by reason of his status as a workman, but that his employment ceases when he reaches a place to which the public have a right of access, such as the public street. From that moment, he loses his identity as a workman, and becomes one of the general public. A similar principle, of course, applies to a workman on his way to work.[15]
(h)Similarly, the judgment of Lord MacMillan in Northumbrian Shipping Co v McCullum was endorsed by Lord Romer in Weaver:
It has been recognised time and again that the sphere of a workman’s employment is not necessarily limited to the actual place where he does his work. If in going to or coming from his work he has to use an access which is part of his employer’s premises or which he is only entitled to traverse because he is going to or coming from his work, he is held to be on his master’s business while he is using that access.[16]
(i)In Jenkins v Elder Dempster Lines Ltd, the Applicant was not taken to be acting in the course of his employment, because at the time of the accident, he was in exactly the same position as any member of the public despite returning to the ship on which he worked.[17]
(j)The Respondent also relied on the case of Vandyke v Fender and Anor, which concerned an Applicant who was travelling in a company car on a highway. In this case, Sachs LJ drew a distinction between the public nature of the highway ‘as opposed to being in some place owned by the company or one over which there was special non-public access to the company’s premises’.[18]
[15] Weaver (n 10) 175 (Lord Romer).
[16] McCullum v Northumbrian Steam Shipping Company Ltd (1932) 48 TLR 568, 572 (per Lord MacMillan)
[17] Jenkins v Elder Dempster Lines [1953] 2 All ER 1133.
[18] Vandyke v Fender and Anor [1970] 2 QB 292, 309.
This line of authority suggests that for a workman to be in a place by virtue of his status as an employee, he must not be able to access that same location as a member of the public. These states are often characterised as mutually exclusive.
Despite this, the Applicant relies on the later worker’s compensation decision of Lamond J in Learmonth v H. & A. Bag Company to contend that exclusive possession of an area is not necessary to establish that a worker is exercising a right above that of a member of the public. Referring to the judgements in Stewart and Son v Longhurst, Foster v Edwin Penfold & Co. Ltd, and Weaver, Lamond J found that:
the broad distinction drawn is one between a worker using a means of ingress or egress available to him only by virtue of his employment, as distinct from a means of ingress or egress which is available to the public “at large” or “a place of which the public have a right of access such as the public street”. It would not seem that the worker’s right would be cut down merely because, as undoubtedly would be the case, a limited number of members of the public also used the same means of ingress or egress.[19]
[19] [1944] WCR 131, 133 (Learmonth).
In Learmonth, Lamond J referred to the test adopted by Lord MacMillan in the case of Sparey v Bath Rural District Council (Sparey)[20], where the question posed is:
‘whether the workman when he was injured was in his capacity as an employee doing something referable to his employment or was in his capacity doing something independent of his employment? It is more than usually difficult to draw the line when the site of the accident is a place where the workman might be at one time in the one capacity and at another time in the other capacity’.
[20] [1931] UKKHL J0101-1 (Sparey).
I note that in Weaver, Lord Romer cited the judgement of Lord Buckmaster in Sparey, stating:
‘… when … the workman is no longer under any control, and is in all respects and for all purposes in the same position as an ordinary member of the public enjoying the same liberty and sharing the same risks the danger he there encounters is one which other members of the public equally share.’[21]
[21] Weaver (n 10) 173.
The Applicant also directed the Tribunal to Ayling v Wende Bros (Ayling)[22], another decision of the Worker’s Compensation Board. In this case, the issue of control or exclusive occupation was immaterial. Chairman Mews, with Members Mark and Cole agreeing, determined that the building, which was private property but used by members of different workplaces, was ‘not a place which the public have a right to access, such as the public street, certainly not in the sense that Salmond uses the term “right.”’[23]
[22] [1962] WCB (WA).
[23] [1962] 1 WCB (WA) 193, 193–4 (Ayling).
At [108] of the AAT1 decision, the Tribunal distinguished Ayling:
This is not a case of the sort considered in Ayling, in which the employee was not only using a permitted means of access to the place of work but was using it only by virtue of having the status of an employee. The general public did not use the staircase. It is not a case such as Learmonth v H&A Bag Company or Grech, in which members of the general public had limited access to the stairs and those stairs were a necessary means of access to CASA’s Premises on Level 13. The stairs were open for public access without limitation. Mr Ford was able to use the stairs as a member of the general public quite separately from his status as an employee of CASA and because he needed to reach Level 13 where he would undertake his duties for CASA.
In the Applicant’s SOFIC, the Applicant noted:
Clause 8.8(a) of the lease reserved for the Landlord the right to “exclude any person from the building”. However, the landlord’s right under clause 8.8(a) was qualified in such a way as to secure the greater rights of the tenants as well as the tenants employees to stop unreasonable interference with the occupation, use or enjoyment of the building, in particular, “to avoid or stop any unreasonable interference with the lawful activities of the Tenant’s employees and agents (sub clause 8.8(b)(ii)).[24]
[24] Applicant’s SOFIC, 6 [37]-[38].
The Respondent also acknowledged the following in its SOFIC:
Access was permitted 24 hours a day and seven days a week by way of a building security access system. The building’s operational hours were 8:00AM to 6:00PM Monday to Friday, subject to CASA’s complying with the landlord’s security requirements, CASA and its employees and agents might have access during the Access Hours.[25]
[25] Respondent’s SOFIC, 2 [11]
During oral submissions, the Respondent distinguished between the other routes of access available to the Applicant and the staircase he used to access the building. The Respondent contended that if the Applicant had used the blue concord route outside of work hours (Entry 2), he may be covered because he would have needed to use an access card and public access was restricted at this time.[26] The underlying premise of this contention is that outside of ordinary hours, the Applicant could only access the building by virtue of his employment.[27]
[26] Transcript, 95 [25].
[27] Ibid 101 [10].
The Respondent contended that during ordinary business hours, if the Applicant had been injured while using that same route, it would have been unlikely to have arisen out of, or in the course of employment, because at that point, he had no different right of access.[28]
[28] Ibid 95 [40].
Once again, I find it highly artificial to suggest that if the Applicant was using such a route after hours, he could be considered to be in the course of his employment but not so if he was using exactly the same route, for exactly the same purpose, during ordinary business hours.
Such an artificial distinction arises by virtue of the argument that the Applicant would not be covered if he used a route accessible to members of the public. But if one takes the approach that he was using the route by virtue of his status as an employee and not as a member of the public, one arrives at a far more logical conclusion.
The Applicant relies on Weaver to contend that the existence of multiple points of entry should not affect whether the route used by the Applicant could arise in a compensation claim.[29]
[29] Applicant’s SOFIC, 7 [47].
In Weaver, Lord Porter stated:
It was admitted that, if there were several methods of egress from the place in which [the Applicant] was employed, he was still in the course of his employment in using any of those methods provided they were situated upon the owner's premises, but it was said that if one or any of them were off those premises the workman not being obliged to use such a method of leaving his work was no longer to be considered to be in the course of it, after he had actually left the premises themselves.[30]
[30] Weaver (n 10) 181.
I find these comments particularly apposite because the Applicant was obliged to use one of the three routes to reach his employer’s offices.
In Weaver, Lord Atkin agreed with the judgment of Romer LJ in Foster v Edwin Penfold & Co Ltd. Romer LJ found that a deceased workman was:
bound as part of his service to leave the employers premises, and he was entitled to leave them by any permissible way and in any permissible manner. He was leaving them by a permissible way and in a permissible manner, and the accident occurred before he had finally got free from those premises and was in a public place, that is to say, on the public highway.[31]
[31] Foster v Edwin Penfold & Co Ltd. (1934) 27 BWCC 240, 259.
Both of the above judgments are referenced with approval by Murphy J in Telstra Corporation Ltd v Bowden.[32]In this case, Murphy J found that given the Applicant was permitted to use the route taken to enter his workplace, it could not be argued that ‘this route for entering and exiting the premises precludes the accident from being one arising out of his employment’.[33]
[32] Telstra v Bowden (n 2) 226–7.
[33] Ibid 227.
Applying the above considerations, including the finding by Murphy J referred to above, I find the route taken being open to members of the public, is a relevant but not disentitling factor. I bear in mind the Applicant was obliged to use one of the routes to access his workplace and to fulfill this obligation could have used any of the permitted routes.
Did the injury occur in the course of, or arise out of the Applicant’s employment?
The phrase “arising out of or in the course of employment” consists of two separate limbs, either of which may be satisfied to find a compensable injury.
I note the following excerpt from the judgement of Murphy J in Telstra v Bowden:
The words “arising out of employment” in s 5A(1)(c) have their origin as part of the phrase “injury by accident arising out of and in the course of employment” in early workers’ compensation legislation in England and Australia. This phrase imposed two conditions before an injury could be compensable under the legislation. Because of the double condition the old authorities require both a temporal connection to employment through the words “in the course of” employment, and a causal connection through the words “arising out of” employment: see for example Dover Navigation Company Ltd v Craig [1940] AC 190 at 199 (Dover Navigation) per Lord Wright. The conjunctive “and” was removed and replaced by the disjunctive “or” in an amendment in 1948 to the Commonwealth Employees Compensation Act 1930 (Cth) (see the Commonwealth Employees’ Compensation Act 1948 — No 61 of 1948) which is the predecessor to the Act in this case. Since this amendment, for an injury to be compensable it has only been necessary for an employee to establish either that the injury arose out of employment or that it arose in the course of employment.[34]
[34] Telstra v Bowden (n 2)
The Respondent cited the case of Mendez v Telstra Corporation (Mendez)[35] and Hatzimanolis v ANI Corporation Ltd (Hatzimanolis)[36] as authority for the proposition that travel to and from work is not usually taken to arise out of, or in the course of employment. In Mendez, Handley JA, with Mason P and Sheppard A-JA agreeing, cites with approval the following passage from the judgment of four Justices in Hatzimanolis:[37]
The course of employment is ordinarily perceived as commencing when the employee starts work in accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his or her ordinary or overtime hours of work. [38]
[35] (1998) 147 FLR 394, 395 (Mendez).
[36] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 (Hatzimanolis).
[37] Ibid.
[38] Hatzimanolis (n 38) 483.
Murphy J also distinguished the case of Hatzimanolis v ANI Corporation Ltd (Hatzimanolis) because it referred to an injury suffered during an interval in employment, but noted the principle was not intended to be applied strictly.[39] His Honour stated:
The decision in Hatzimanolis serves as another example of an expansive view of “employment” given the Court’s finding that an injury suffered on a day off work, on what the employer contended was a private sightseeing trip, was still found to be in the course of employment.[40]
[39] Ibid 224.
[40] Ibid 225.
Accordingly, I find that an expansive interpretation of ‘employment’ is preferable, and the authorities of Mendez and Hatzimanolis do not preclude travel arising out, or in the course of, an employee’s employment in particular circumstances.
I also find the following lines of High Court authority, although relating to different legislation, useful:
(a)In Stewart v Metropolitan Water Sewerage & Drainage Board (1932) 48 CLR 216 which dealt with the conjunctive phrase “arising out of and in the course of employment,” per Gavan Duffy CJ, Evatt J and McTiernan J
This re-statement of the cases shows clearly that if Astill was “in the course of his employment” properly at a place near the stove, his accident also arose “out of” his employment if it arose because of a “risk particular thereto” attached to that place. What is really the same principle is stated by Russell L.J. in Lawrence v. George Matthews (1924) Ltd. as follows:—Sufficient causal relation or causal connection between the accident and the employment is established if the man's employment brought him to the particular spot where the accident occurred, and the spot in fact turns out to be a dangerous spot. If such a locality risk is established, then the accident arises out of the employment, even though the risk which caused the accident was neither necessarily incident to the performance of the man's work, nor one to which he was abnormally subjected.[41]
[41] Stewart vMetropolitan Water Sewerage & Drainage Board (1932) 48 CLR 216, 223–4.
(b)Henderson v Commission of Railways (WA) (1937) 58 CLR 281, which also dealt with the conjunctive phrase “arising out of or in the course of,” per Dixon J:
The reason given by the Full Court for the conclusion that the accident did not arise out of or in the course of the employment appears to me to depend upon the view that before the accident the deceased entirely left the sphere of his duty and, independently of his employment, was finding his way over part of his employer's premises to the place where for his own benefit he was allowed to camp. In my opinion such a view makes too marked a contrast between the deceased's actual work with the gang and his use of the facilities of the camp. It treats the employment as entirely restricted to working with and supervising the gang when at work and the camp as something no different from the workman's own dwelling or other place of residence.
Cases of this description are never easy. The general principle governing the ascertainment of the "course of employment" appears now to be settled. It is not merely a question of the existence and continuance of a relationship. To be in the course of the employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. General expressions of this kind have not proved very helpful. A number of them, taken from leading authorities, will be found in the judgment of this court in Pearson v. Fremantle Harbour Trust. Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties. That the workman is liable to the control of the employer is of some importance. That he has not yet assumed the same relation to his employer's premises and work as an ordinary member of the public is another matter of weight (See, per Lord Wrenbury, St. Helen's Colliery Co. Ltd. v. Hewitson; per Lord Buckmaster, Sparey v. Bath Rural District Council, and per Lord Atkin; and cp. Northumbrian Shipping Co. v. McCullum and Foster v. Edwin Penfold & Co.)[42]
[42] Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281, 293–5 (Dixon J).
(c)ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964) 110 CLR 372, per Kitto J:
Whether a breach of a master's duty of care for his servant's safety be regarded as a breach of contract or as a tort (see Matthews v. Kuwait Bechtel Corporation (1959) 2 QB 57 ), the duty is to take all reasonable precautions against injury to the servant "in the course of his employment": Priestly v. Fowler (1837) 3 M & W 1, at p 6 [1837] EngR 202; (150 ER 1030, at p 1032); Brydon v. Stewart (1855) 2 Macq 30 . But as Lord Cranworth was at pains to make clear in his judgment in the lastmentioned case, in this connexion "the course of the employment" is not a narrow conception. It extends beyond the period of work to every situation in which the master sustains the character of master towards the servant. See also Jury v. Commissioner for Railways (N.S.W.) [1935] HCA 29; (1935) 53 CLR 273. Such a situation may exist even after the servant has left his place of work at the end of a day: Tunney v. Midland Railway Co. (1866) LR 1 CP 291. It may exist (though what is required for its performance may be very little) even in a case where the servant is exercising his right as a member of the public to pass along a public highway, for he may be performing an errand for his master or travelling to or from his place of work in a manner provided for by an express or implied term of the contract of employment. On the other hand it is clear that where the servant is using the highway simply as a means of getting to or from his place of work in such circumstances that the journey is either preliminary or subsequent to, and not in the course of, the employment, the master, as such, owes him no duty of care. The point to be observed is that the question upon which the existence of the duty depends is not in what character has the servant the right of passage, but whether the master is master in relation to the journey. Again, where the servant at the material time is traversing private land of a third person by the latter's leave, as for instance where the employer occupies a suite of rooms in a large building and the employee is using a common lift or passage-way in the building, the existence of a duty of care on the part of the master for the servant's safety depends, not upon whether the owner is to be considered as allowing the servant the use of the lift or passage-way in the character of, or because he is, the master's servant, but upon whether the master is master in relation to what the servant does in exercise of the licence. Suppose, then, that at the time of the hurt which the servant suffers he is upon the land of a third person pursuant to a permission which the master has obtained for him from the owner. If no more than that be known it is impossible to say whether the master owes the servant a duty of care, for it may be that the relation of master to the servant does not subsist in respect of the servant's exercise of the permission. If, for example, a master gratuitously presents his servant with a theatre ticket, he is not master in respect of the servant's exercise of the liberty the ticket gives him in the theatre, and accordingly he owes the servant no duty of care while there.
In the present case, accordingly, it is necessary to determine what was the situation of the defendant in relation to the plaintiff's use of Tenth Street on the occasion when she fell into the hole. As I have indicated, I think it was a necessary inference for the jury to draw that the defendant had some kind of arrangement with the owner of Tenth Street under which the employees in the cap shop might pass by that way in order to get from their work to Lachlan Street. Accordingly the plaintiff was in Tenth Street at the material time in the character of an employee of the defendant in the cap shop. But that merely raises the crucial question, whether the defendant stood in the relation of master to the plaintiff not only in respect of her work, nor only in respect of her presence in the cap shop, but also in respect of her use of Tenth Street on the occasion of her accident. It was at this point that the difference of opinion among the learned Judges of the Supreme Court arose. I find myselfin agreement with the majority, and I do so by asking myself two questions: (1) Was there an implied term in the plaintiff's contract of employment-there was no proof of any express term-obliging the defendant to see that one or more ways over the private land surrounding the cap shop should be available to the plaintiff for the purpose of her reaching a public highway after leaving work ? and (2) Was the availability of Tenth Street for her use for that purpose being maintained by the defendant on the occasion in question in performance of that obligation? If the answer be Yes to both questions, the conclusion must follow that the defendant was sustaining the character of master to the plaintiff while she was using Tenth Street at the time of her injury, and the duty of reasonable care for her safety existed at that time as an incident of the relationship.[43]
[43] ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964) 110 CLR 372, 378–80 (Kitto J).
(d)Hatzimanolis which deals with an injury that was found to arise in course of employment, per the joint judgement of Mason CJ, Deane J, Dawson J and McHugh J:
For the purposes of s.4, the course of employment is not identical with the period of employment of a worker or with the work which that person performs. From a very early stage in the history of the law of workers' compensation, it was recognised that the course of employment covered not only the actual work which a person was employed to do but also "the natural incidents connected with the class of work" (1) Charles R. Davidson and Company v. M'Robb (1918) AC 304, at p 321. In 1931 in Whittingham v. Commissioner of Railways (W.A) (2) [1931] HCA 49; (1931) 46 CLR 22, at p 29, Dixon J. said that there can "no longer be any doubt that the accident must happen while the employee is doing something which is part of or is incidental to his service". But his Honour went on to say that it was "another matter to be sure what is included within this conception". He thought that, in considering what was incidental to service, the sufficiency of the connection between the worker's employment and what he was doing at the time that he was injured could only be a matter of degree in which time, place, practice and circumstances as well as the conditions of employment had to be considered.
…
In Henderson v. Commissioner of Railways (W.A), at p 294, Dixon J. acknowledged that general expressions such as "incidental to the performance of the work" had not "proved very helpful" in determining whether an injury had occurred in the course of employment. His Honour suggested that, in cases which were not concerned with injuries sustained during actual work, the test of whether an injury had been sustained in the course of employment ultimately depended upon whether the workman was doing something which he was "reasonably required, expected or authorized to do in order to carry out his actual duties" (4) ibid. Dixon J. also applied that principle in Humphrey Earl Ltd. v. Speechley at p 133 although in that case he omitted the adjective "actual".
In Kavanagh v. The Commonwealth, at p 556, Dixon C.J. suggested that it was "perhaps unwise to substitute any expression as an equivalent for the well-known words 'in the course of' which had a long history in the law before they were taken up by the English Workmen's Compensation Act 1897". Unwise or not, Australian courts have almost invariably applied the test formulated by Dixon J. in Henderson when called upon to determine whether an injury occurring during intervals between work was sustained "in the course of employment". On the whole, the flexible application of the test has enabled a satisfactory line of demarcation to be drawn between those injuries which are work-related and those which are so remote from the notion of the worker's employment as not to call for compensation by the employer. Nevertheless, only by use of a strained interpretation of the words "in order to carry out his duties" is it possible to reconcile the application of the test with the decisions in many modern cases where workers have been held to have sustained injury in the course of employment.
Given the flexible nature of the application of the test, it is not surprising that what is now perceived as required, authorised or expected to be done in order to enable an employee to carry out his or her duties covers many situations that were not contemplated when the test was first formulated in Henderson in 1937.
…
But, as we have indicated, in many cases these decisions have been reached only by a strained reading of the words "in order to carry out his duties". In Danvers v. Commissioner for Railways (N.S.W.), for example, a railway worker died when a van, provided by his employer for his accommodation, caught fire during the night. The van was moved from work site to work site. On the day of his death, the worker had finished work at about 4.00 p.m. and had no further duties to perform until the following morning. Nevertheless, this Court, reversing the Court of Appeal of New South Wales, held that it was open to the Workers' Compensation Commission to find that the worker's death occurred in the course of his employment. Barwick C.J., with whose judgment Kitto and Windeyer JJ. agreed, adopted the statement of Dixon J. in Henderson at p 293 that doing what was reasonably required, expected or authorised to be done in order to carry out duties may include being at a place at which the workman's presence "is so consequential upon or incidental or ancillary to the employment that in being there he is doing something in virtue, or in pursuance, of his employment (Danvers at p 536) But Barwick C.J. said that in applying such a statement to the circumstances of a case, its elements "should be applied liberally and practically" (ibid). His Honour said that it was not enough to exclude the use of the employer-provided accommodation from the course of employment to establish that there was other accommodation available in the vicinity of the place of work. If alternative accommodation was available, the worker would be outside the course of his employment in choosing to use the employer's accommodation only if he had a real and meaningful choice to use the alternative accommodation. His Honour also said (at p 537) that, in determining the course of employment, regard had to be had:
"to the general nature 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".[44]
[44] Hatzimanolis (n 38) 478–82.
I note in particular the reference in the above judgment to the comments of Barwick CJ in Danvers v Commissioner for Railways:
[…] in applying such a statement to the circumstances of a case, its elements ‘should be applied literally and practically.[45]
[45] Danvers v Commissioner for Railways (1969) 122 CLR 529, 536.
In the written reasons for the decision of Tribunal in the first instance, it stated:
there was no suggestion at the hearing that Mr Ford’s injury arose out of his employment, but [the Tribunal] notes that, in order to make a finding to that effect, [the Tribunal] would need to find an element of causation between his employment and his injury. I am not satisfied that a finding to that effect is open on the evidence.[46]
[46] Ford v Comcare [2018] FCAFC 127, [102].
On appeal to the Full Court, the Court stated in its reasons:
Although the Tribunal made some observations that might be construed as finding that there was no sufficient causal relationship to establish that the injury arose out of employment, the parties now both submit, and we accept, that the Tribunal did not give any serious consideration the applicants contention that his injury arose out of his employment, including by reference to the terms of CASA’s lease.[47]
[47] Ibid [4].
“Arising out of employment”
In Telstra v Bowden, Murphy J stated the requirement for an injury to “arise out of employment” as follows:
What is required for an injury to arise out of employment is a causal connection which is less proximate that “caused by” or “results from” but not a connection which is fanciful or tenuous.[48]
[48] Telstra v Bowden (n 2) 214.
I note that in that case, Murphy J found that although the question of whether an event that gave rise to an injury was something that the person was required or expected to do is relevant, it is not determinative and does not exclude broader consideration of whether an injury arose out of employment.[49]
[49] Ibid.
I also note the principles enunciated in Lawrence v George Matthews by Russell LJ, cited with approval in Stewart v Metropolitan Water, Sewerage and Drainage Board per Gavan Duff CJ, Evatt and McTiernan JJ:[50]
[A] sufficient causal relation or causal connection between the accident and the employment is established if the man's employment brought him to the particular spot where the accident occurred, and the spot in fact turns out to be a dangerous spot. If such a locality risk is established, then the accident “arises out of” the employment, even though the risk which caused the accident was neither necessarily incident to the performance of the man's work, nor one to which he was abnormally subjected.[51]
[50] Stewart v Metropolitan Water, Sewerage and Drainage Board (n 41) 224.
[51] Lawrence v George Matthews [1929] 1KB 1, 19.
In Telstra v Bowden, the above case of Stewart v Metropolitan Water, Sewerage and Drainage Board is cited as authority for the principle that there will be a sufficient causal connection for an injury to arise out of employment if the injury occurred when a worker’s employment brought him to a particular locality where the danger arose.[52]
[52] Telstra v Bowden (n 2) 216.
I find the following facts establish a sufficient causal connection between the Applicant’s injury and employment to satisfy me that the injury arose out of his employment:
(a)the Applicant was using the route to attend his place of employment on level 13.
(b)the route taken was part of the common areas of 720 Bourke St and the Applicant was obliged to traverse the premises to reach his place of employment on level 13.
(c)it was sufficient that the Applicant used one of the three permitted means of ingress to access his place of employment and I do not consider it material which one he used.
(d)Given the Applicant was attending 720 Bourke Street for the purpose of his employment, and given that he could not otherwise reach his employment, there is a sufficient causal connection between his injury and his employment so as to establish the injury arose out of his employment.
“In the course of employment”
Given that I am satisfied the Applicant’s injury arose out of his employment, it is not necessary for me to consider whether the Applicant’s injury also occurred in the course of his employment. Accordingly, s 6(1) of the Act is satisfied.
CONCLUSION
In conclusion, in addition to the matters set out at [68], I have considered the following:
(a)The fact that the Act is to be interpreted beneficially.
(b)The summary of principles and finding by Kitto J at 378–80 of ACI Metal Stamping & Spinning Pty Ltd v Boczulik, as set out at paragraph [60](c) above.
(c)I am mindful that His Honour's approach to the existence of a duty of care depends not in what character the servant has in the right of passage, but whether the master is a master in relation to the journey, but I consider that distinction does not apply against the factual and legislative basis of the matter before me.
(d)The Applicant’s using of a route available to members of the public did not rule out the possibility of his journey arising out of employment.
(e)The matters referred to at [55] to [59] above.
(f)The Applicant’s injury was sufficiently causally connected to his employment to establish the injury arose out of his employment.
The Tribunal sets aside the decision under review. The matter is remitted for consideration by the Respondent taking into account the Tribunal’s finding that the Applicant’s injury arose out of his employment.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President.
......................[sgd]...........................................
Associate
Dated: 2 July 2021
Date(s) of hearing: 28 October 2019 Counsel for the Applicant: Mr Mark Carey Counsel for the Respondent: Ms Sarah Wright
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