Ford and Comcare (Compensation)

Case [2021] AATA 2170

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 127

Ford 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 157

REASONS FOR DECISION

A G Melick AO SC, Deputy President

2 July 2021

INTRODUCTION

Background

  1. 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.

  2. 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…

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Details
AGLC
Ford and Comcare (Compensation) [2021] AATA 2170
Case
[2021] AATA 2170
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by an employee of the Civil Aviation Safety Authority (CASA) against a decision by Comcare. The employee, who worked as a Certificate Management Team Leader, sustained an injury while accessing his workplace on the 13th level of 720 Bourke Street, Melbourne. Access to this level was via lifts or a ramp from the second level, which was itself accessible from the Bourke Street entry. The employee preferred to use the stairs, which were part of the building's common areas and accessible to the public, to maintain his fitness. The dispute centred on whether the employee's injury arose out of or in the course of his employment for the purposes of the *Safety Rehabilitation and Compensation Act 1988* (the Act).

The Administrative Appeals Tribunal was required to determine whether the employee's injury arose out of his employment. This involved considering the application of the principle that the Act should be interpreted beneficially in favour of employees, and assessing the causal connection between the employee's chosen mode of access to his workplace and his employment. The Tribunal also had to consider whether the employee's use of a route available to the general public precluded the injury from being considered as arising out of employment, and whether the employer had any duty of care in relation to the employee's journey.

The Tribunal reasoned that the employee's injury arose out of his employment. It applied the principle of beneficial interpretation of the Act and considered the findings of Kitto J in *ACI Metal Stamping & Spinning Pty Ltd v Boczulik*. The Tribunal found that the employee's use of the stairs, which were accessible to the public, did not negate the possibility that his journey arose out of his employment. Crucially, the Tribunal was satisfied that the employee's injury was sufficiently causally connected to his employment to establish that it arose out of his employment, notwithstanding that the specific route taken was also available to the public.

The Tribunal set aside the decision under review and remitted the matter to Comcare for reconsideration. Comcare was directed to take into account the Tribunal's finding that the applicant's injury arose out of his employment.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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