FORD and COMCARE (Compensation) - [2018] AATA 648

FORD and COMCARE (Compensation) [2018] AATA 648 (21 March 2018)

Division:General Division
File Number: 2016/5154
Re:MATHEW FORD
APPLICANT

AndCOMCARE
RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie
Date:21 March 2018
Place:Melbourne

The Tribunal affirms the reviewable decision of the respondent dated 27 July 2016 refusing to accept liability under the Safety, Rehabilitation and Compensation Act 1988.

........................[sgd]..............................................

Deputy President S A Forgie

COMPENSATION – injury sustained by employee while ascending steps during travel to work – steps used by general public to gain access to concourse between Spencer Street Station and Etihad Stadium – injury did not arise out of, or in the course of, employment – reviewable decision affirmed

STATUTORY INTERPRETATION – Explanatory Memorandum cannot be used to contradict clear words of statute

PRACTICE AND PROCEDURE – principle of comity – no application in Tribunal proceedings

LEGISLATION

Acts Interpretation Act 1901 (Cth), s 15AB(1)

Commonwealth Employees’ Compensation Act 1930 (Cth) ss 9, 9A

Defence Act 1903 (Cth) s 45(1)

Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 6, 14

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) ss 2, 3, 6

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2011 (Cth) ss 2, 3, 6

Veterans’ Entitlements Act 1986 (Cth) s 70(1)

Workers Compensation Act 1987 (NSW)

Workers’ Compensation Act 1926 (NSW)

CASES

Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542
Bull v Attorney-General for New South Wales (1913) 17 CLR 370
Comcare v Mather and Mitchell [1995] FCA 1216; (1995) 56 FCR 456; 37 ALD 463; 21 AAR 297

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384; 141 ALR 618

Comcare v PVYW [2013] HCA 41; (2013) 250 CLR 246; 303 ALR 1; 136 ALD 1
Damjanovic & Sons Pty Ltd v The Commonwealth [1968] HCA 42; (1968) 117 CLR 390
Danvers v Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529

Drakev Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577;

2 ALD 60 at 419; 589
Farah Constructions v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626

Foster v Edwin Penfold & Co Limited 27 BWCC 240

Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1
Grech v Commonwealth of Australia 1 DCR (NSW) 108
Gregory v Comcare (1997) 72 FCR 196
Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473; 106 ALR 611

Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281

John Stewart and Son Ltd v Longhurst 10 BWCC 266
Learmonth v H&A Bag Company [1944] WCR 131
McCullum v Northumbrian Shipping Company Limited (1932) 147 LT 361
M Ayling v Wende Bros [1962] WCBD (WA) 193

Re Barnard and Australia Post Corporation [2008] AATA 507
Re Green and Comcare [2011] AATA 639
Re Hughes and Comcare [2010] AATA 775
Re McKenzie and Comcare [2011] AATA 924
Re Perera and Comcare [2009] AATA 499
Re Sintiris and Telstra Corporation [2012] AATA 900

Smith v Australian Woollen Mills Ltd [1933] HCA 60; (1933) 50 CLR 504
Sparey v Bath Rural 24 BWCC 414
Stewart v Metropolitan Water, Sewerage and Drainage Board [1932] HCA 45; (1932) 48 CLR 216
Telstra Corporation Limited v Bowden [2012] FCA 576; (2012) 206 FCR 207; 292 ALR 61; 129 ALD 520
The Star Pty Ltd v Mitchison [2017] NSWCA 149
Victorian Workcover Authority v Jones Lang Lasalle (Vic) Pty Limited [2012] VSC 412

Weaver v Tredegar Iron Co Limited [1940] AC 955

SECONDARY MATERIALS

Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Explanatory Memorandum to Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006
Statutory Interpretation in Australia DC Pearce and RS Geddes, 8^th edition, LexisNexis Butterworths, Australia, 2014

REASONS FOR DECISION

Deputy President S A Forgie

Mr Mathew Ford holds the position of Team Leader Flight Training in the Civil Aviation and Safety Authority (CASA). He works at CASA’s offices, which had been located at 720 Bourke Street, Docklands (720 Bourke Street) since February 2016. On 22 March 2016, he was on his way to work when he fell while climbing the stairs at the front access to the premises at 720 Bourke Street. As a result of the fall, Mr Ford suffered upper eyelid lacerations and a supraorbital fracture. Comcare has accepted that Mr Ford was hurt in that way and that he is an “employee” within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). It has not, however, accepted that it is liable to pay compensation under s 14 of the SRC Act because it has not accepted that his injury arose out of, or in the course of, his employment.

The reason for Comcare’s decision is that Mr Ford fell while on his journey from his place of residence to his place of work and so cannot be regarded as having sustained an injury arising out of, or in the course of, employment within the meaning of s 6 of the SRC Act. The essence of its case is that travel between an employee’s place of residence and place of work is specifically excluded from the scope of s 6. Such a journey is taken not to be travel at the direction or request of the Commonwealth. Therefore, an injury that is sustained on such a journey is expressly excluded by the terms of s 6(1C) from being regarded as an injury that has arisen out of, or in the course of, an employee’s employment by virtue of s 6(1)(d) of the SRC Act. Mr Ford contends that the injury can still be regarded as an injury “arising out of, or in the course of,” his employment because it occurred while he was gaining permitted ingress to his place of work by traversing land that is not part of the public highway. He had to traverse that land in order to commence his duties as required by his contract of employment.

I have decided that, subject to any qualifications in ss 6(1A) to (1C), ss 6(1)(a) to (i) extend the circumstances in which an injury sustained by an employee will be regarded as having arising out of, or in the course of, employment. They do not otherwise qualify the circumstances in which an injury will be regarded as having arisen out of, or in the course of, employment. Indeed, s 6(1) introduces ss 6(1)(a) to (i) with the express statement that it does so “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 …” (emphasis added). Therefore, it is not enough to decide whether an employee was injured in the circumstances set out in ss 6(1)(a) to (i) and in so far as they are qualified by ss 6(1A) to (1C). Even if the circumstances in which the injury was sustained do not come within the scope of ss 6(1)(a) to (i) as qualified, the more general question must be asked. That question is whether, the injury arose out of, or in the course of, employment as those words are words are used in the opening words to s 6(1). Those words have an ordinary meaning that has been considered by various authorities, to which I will turn below.

I have decided that Mr Ford’s injury was not sustained in any of the circumstances set out in ss 6(1)(a) to (i) and also that he did not sustain his injury at his place of work. Furthermore, I have also decided that his injury was not an injury that “arose out of, or in the course of, his … employment” within the ordinary meaning of that expression. Therefore, I have affirmed the reviewable decision refusing to accept liability under the SRC Act made by Comcare on 27 July 2016.

BACKGROUND

There was no disagreement about some of the matters that form the background to the issue that I must decide. I will set them out in this part of my reasons. Beginning with the building at 720 Bourke Street, it is situated in Docklands, which is located to the west of the Melbourne Central Business District. The major tenant and the tenant with naming rights to the building is Medibank Private. It has its own dedicated entrance from the concourse level linking to Southern Cross Station. CASA’s offices are located on Level 13 of the building.

On 22 March 2016, Mr Ford parked his car in a car park in Aurora Lane. He walked down Aurora Lane to Bourke Street. He entered 720 Bourke Street and began to climb a set of stairs located within the building’s footprint from the Bourke Street level to the concourse level. Members of the public are permitted to use the stairs without restriction seven days a week. The concourse connects Southern Cross Station with Etihad Stadium. Mr Ford fell on these stairs. Had he not fallen, he would have left the stairwell and entered the concourse level of the building at glass doors located opposite Etihad Stadium. Mr Ford would then have been at the level where the building’s Reception is located. I will refer to this level as the “Reception Level”. He would then have gained access to the lifts servicing Level 13 as access can only be gained from the Reception Level.

Mr Ford could have chosen to reach the lifts servicing Level 13 by a different means. After leaving his car in a car park in Aurora Lane and walking to 720 Bourke Street, he could have entered the building at the Bourke Street level. Once there, he could have chosen to take a lift to the Reception Level and so to the lifts to Level 13 or he could have reached them by walking around a ramp that follows an irregular elliptical course up two levels (the internal Blue Concourse).

Mr Ford preferred to take the stairs to the Reception Level rather than the lift or the ramp because it offered a further opportunity to keep fit. He was conscious of maintaining his fitness because he needed to pass a medical in order to retain the licences he needed to undertake his work. Mr Ford also attended a gym and undertook other fitness activities as other means of maintaining his fitness.

CASA leased “Premises” in 720 Bourke Street. They were described in cl 33.1 of the Lease between the registered proprietor of the building, which was its landlord, and CASA with reference to Item 4 and the plan at Schedule 1. The Premises occupied only part of Level 13 and were shown on a plan of that level attached to the Lease.

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 8.00 am to 6.00 pm Monday to Friday.[1] Subject to CASA’s complying with the landlord’s security requirements, CASA and its employees and agents might have access during the Access Hours.[2]
[1] Exhibit 2; Annexure A: Lease entered by CASA; cl 33.1 and Reference Schedule; Item 15
[2] Lease; cl 8.9

The landlord of 720 Bourke Street granted CASA a permanent non-exclusive licence to use two car parks within the building for the term of the lease. CASA was required to reimburse the landlord for Car Park Levies under cl 27.4. Under cl 27.5, CASA and its employees and agents were permitted to use driveways located on the land in common with all other persons authorised by the landlord to gain access to and from the Car Park. CASA also agreed to pay the Parking Spaces Licence Fee to the landlord in the same manner as it paid rent.

Under cl 32, the landlord granted CASA a permanent, exclusive licence to the Storage Area for the term of the lease. CASA paid a Storage Licence Fee for that licence and, as with the Parking Spaces Licence Fee, it was payable in the same manner as the rent.

Under cl 8.13, he landlord was permitted to make rules in relation to the building (Building Rules). The Building Rules are set out in Schedule 2 to the lease. The expression “Common Areas” is defined in cl 33.1 as meaning “… those parts of the Building not leased or licensed to any person and designated by the Landlord for common use.” No specific reference is made to CASA and its employees’ being permitted to use the Common Areas. There are, however, oblique references to their doing so. Item 17.1 of the Building Rules provides, for example, that the tenant, being CASA, must only use facilities such as toilets, sinks, basins, drains and plumbing, in the Premises and in the Common Area for their proper purpose. Unless authorised to do so, CASA was not permitted to use, or allow any part of, the Common Area to be used for any business or commercial purpose or display or advertising.[3]
[3] Building Rules; Item 20.1

THE SUBMISSIONS

On behalf of Mr Ford, Mr Carey of counsel submitted that his injury arose out of or in the course of his employment. He put his argument on two bases. One was that Mr Ford sustained the injury while gaining ingress to his place of work by traversing land that is not part of a public highway but which is owned by the proprietor of 720 Bourke Street. Mr Ford had to travel over that land in order to commence his duties in order to fulfil his contract of employment. The second basis put forward by Mr Carey was that his employment had taken him to a particular location where he had suffered the injury. That was a locality risk.

In support of his argument, Mr Carey relied on the judgment of Murphy J in Telstra Corporation Limited v Bowden[4] (Bowden) and to the cases on which he relied and the propositions he drew from them. Referring to authorities, Mr Carey made the following main points in his submissions:
“(a) The circumstances disclose a relevant causal relationship between injury and employment being a ‘connection which is less proximate than “caused by” or “results from”, but not a connection which is fanciful or tenuous’ as used in Repatriation Commission v Law [1980] FCA 92; (1980) 47 FLR 57 at 68 and approved by the High Court in Repatriation Commission v Law [1981] HCA 57; (1981) 147 CLR 635 (‘Law’) per Aickin J at 647-648, with whom Gibbs, Stephen and Mason JJ agreed.
(b) Employment encompasses those things belonging to it or arising out of it (see St Helens Colliery v Hewitson [1924] AC 59 at 71 per Lord Atkinson). The broad construction approved by the authorities has long been accepted as applying to the nature, conditions, obligations and incidents of employment (see Thom v Sinclair 1917 AC 127 (‘Thom’) at 142 per Lord Shaw).
(c)Such relevant connection may be established when, by reason of the nature, conditions, obligations and incidents of employment an employee is brought with a zone of special danger and thereby suffers injury (as in Thom), or is exposed without special danger to locality risks (see Nunan v Cockatoo Island Docks and Engineering Co Limited [1941] NSWStRp 23; (1941) 41 SR (NSW) 119 (‘Nunan’) at 124 to 125); if an obligation of employment brought an employee to a particular place where the risk of injury arose then an injury suffered was one arising out of employment (see Thom at 134) or if he encounters circumstances because it is in the scope of the employment (see Upton v Great Central Railway Co [1924] AC 302 at 306, 308 (‘Upton’) per Lord Haldane. The various cases were discussed by Murphy J in Telstra Corporation Limited v Bowden [2012] FCA 576 (4 June 2012) noting the approvals cited in Pearson v The Freeman tie Harbour Trust [1929] HCA 19; (1929) 42 CLR 320 at 330 in which Knox CJ, Rich and Dixon JJ applied Upton at 306; Smith v Australian Woollen Mills Ltd [1933] HCA 60; (1933) 50 CLR 504 (‘Australian Woollen Mills’) at 512 per Gavan Duffy CJ, Rich, Evatt and McTiernan II citing Upton at 308 and at 518 per Starke J citing Upton at 307 and 308; Goward v The Commonwealth (1957) [1957] HCA 60; 97 CLR 355 at 364 per Dixon CI, Williams, Webb and Kitto JJ, citing Upton at 306 and 308; Local Government Association (City of Salisbury) v May [1996] SASC 5901; (1996) 67 SASR 353 at 356 to 357 where Duggan J (with whom Cox and Matheson JJ agreed) followed the High Court's approval of Upton in Goward. In Zlateska v Consolidated Cleaning Services Pty Ltd [2006] VSCA 141 (‘Zlateska’) at [50] to [51] Eames JA (delivering joint judgment with Maxwell ACJ and Redlich JA) cited Thom at 134 with approval.
(d)Further, it is not necessary that the risk which caused the accident and injury to which the employment exposed the employee is incidental to the performance of work (see Lawrence v George Matthews (1924), Ltd [1929] 1 KB 1 at 19 Russell Li approved by the High Court in Stewart v Metropolitan Water, Sewerage and Drainage Board [1932] HCA 45; (1932) 48 CLR 216 (‘Stewart’) per Gavan Duffy CJ, Evatt and McTiernan JJ at 224, and by Dixon J as he then was at 232. The work needs only to bring the employee to the location where the danger of injury arose for the necessary causal connection to be established.
(e) The words 'arising out of employment' apply to injury where an employee ‘who had left the public highway and was in passage into or exiting from the place of work, where the employee had leave to pass for that purpose and did so using a permitted method of access into or egress’ (per Murphy J in Bowden at [59] citing authorities of Weaver v Tredegar Iron Co Limited [1940] AC 955 (‘Weaver’) and the cases Stewart & Son (1912) Ltd v Longhurst [1917] AC 249 (‘Stewart & Son’); Webber v Wansborough Paper Co [1915] AC 51 (‘Webber’); and Northumbrian Shipping Co Ltd v McCullum (1932) 48 TLR 568 (‘Northumbrian Shipping’).
21. There have been a succession of cases applying the principles concerning permitted ingress or egress arising out of employment, aside from the recent case of Bowden, including Learmonth v H & A Bag Company [1944] WCR 131, M Ayling v Wende Bros [Decision of the WA Workers Compensation Board, N W Mews Chairman, Messrs W P Mark and R C Cole, Members, 126/1961; 8 February 1962]; Grech v Commonwealth of Australia (1959) 1 DCR 108 and a more recent decision of the Supreme Court of Victoria, VWA v Jones Lang Lasalle (Vic) Pty Limited [2012] VSC 412 (12 September 2012) where the aforementioned principles concerning entry and exit cases were again reaffirmed.”[5]
[4] [2012] FCA 576; (2012) 206 FCR 207; 292 ALR 61; 129 ALD 520
[5] Applicant’s Statement of Facts Issues and Contentions at [20]

On behalf of Comcare, Mr Harris of Counsel submitted that the wording of the SRC Act must be the starting point of the discussion rather than the authorities to which Mr Carey had referred. The issue must be decided by reference to the proper interpretation of ss 6(1), 6(1C) and 5A and their interaction not only amongst themselves but with the expression “in the course of … employment”. Mr Harris submitted that it is the clear intention of these sections that injuries that occur during travel from an employee’s residence to place of work are excluded from the scope of the SRC Act. He referred to the Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Explanatory Memorandum). The Bill was later enacted as the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007[6] (2007 Amendment Act). Mr Harris submitted that the amendments made by the 2007 Amendment Act are a clear intention to exclude all injuries that occur during travel from an employee’s residence to place of work. No journey claim is compensable unless it is an integral part of an employee’s duties. The effect of s 6(1)(d) is that an injury occurring while travelling does not arise out of or in the course of an employee’s employment unless that travel is at the direction of the Commonwealth or of a licensee. The analysis of the issues in a case such as this must be on whether Mr Ford’s injury occurred at a place of work. That approach is consistent with s 4(1) and ss 6(1A) and (1B), which clearly define “place of residence” but which leave “place of work” undefined and to be determined on the facts of each case.
[6] Act No. 54 of 2007

The approach taken on behalf of Mr Ford, Mr Harris submitted, relies on a passage from the judgment in Bowden when Murphy J summarised the principles from Weaver v Tredegar Iron Co Limited[7] (Weaver). I have set that out at (e) of Mr Carey’s submissions.[8] That relied on the principles stated in Henderson v Commissioner of Railways (WA),[9] Mr Harris continued, but it is inconsistent with principles of statutory interpretation. It would be inconsistent because it would not be consistent with the language or intention of the words now used. It would not give meaning to the words in s 6(1C). The law underpinning the principles expressed in Weaver has been amended. Parliament is taken to have been aware of previous case law when it amends the law. In this case, Parliament clearly expressed its intention that injuries suffered on the journey to and from work are no longer compensable.
[7] [1940] AC 955
[8] See (e) at [15] above
[9] [1937] HCA 67; (1937) 58 CLR 281

Mr Harris drew my attention to six previous decisions made by differently constituted Tribunals. The cases are Re Green and Comcare[10] (Green), Re McKenzie and Comcare[11] (McKenzie), Re Hughes and Comcare[12] (Hughes), Re Barnard and Australia Post Corporation[13] (Barnard), Re Perera and Comcare[14] (Perera) and Re Sintiris and Telstra Corporation[15] (Sintiris). He said that each of them had adopted an approach different from that proposed by Mr Carey. I should continue to follow their approach because it is desirable that decisions of the Tribunal are decided having regard to the principle of comity. Unless I am sufficiently convinced that a decision made by the Tribunal in an earlier case is wrong and should not be followed, Mr Harris submitted that I should continue to follow the approach taken by that earlier Tribunal or, in this case, those earlier Tribunals.

LEGISLATIVE FRAMEWORK

[10] [2011] AATA 639; Senior Member Creyke

[11] [2011] AATA 924; Senior Member Creyke

[12] [2010] AATA 775; Senior Member Creyke

[13] [2008] AATA 507; Senior Member Penglis

[14] [2009] AATA 499; Deputy President Constance

[15] [2012] AATA 900; Miss Shanahan, Member

Legislative framework in effect currently and at date of Mr Ford’s fall in 2016

The SRC Act is an Act relating to the rehabilitation of employees of the Commonwealth and certain corporations and to workers’ compensation for those employees and certain other persons.[16] Section 14(1) provides that:
“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.”
[16] SRC Act; Long Title

The Part which qualifies Comcare’s liability is Part II. The first two of the qualifications are found in s 14 itself. The first, set out in s 14(1), is that compensation is not payable in respect of an injury that is intentionally self-inflicted. The second, which is set out in s 14(2), provides that 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. Neither qualification is relevant in the circumstances of this case.

Other sections in Part II make provision for specific types of compensation. A separate claim must be made for each type of compensation. Apart from compensation provided for in s 15,[17] each type of compensation depends on an employee’s having first suffered an injury.[18] That is determined under s 14. Each element of s 14(1) needs to be considered.
[17] Section 15 provides that Comcare is liable to pay compensation to an employee if that employee has an accident arising out of, or in the course of, his or her employment by the Commonwealth or a licensed corporation and the accident does not cause an injury to the employee but results in the loss of, or damage to, property used by the employee.
[18] Provision is made for compensation in respect of medical expenses (s 16), death (s 17), funeral expenses (s 18), incapacity for work (ss 19 – 21A and 23), maintenance in hospital (s 22), repayment of salary, wages or pay and re-crediting of leave (s 23A), permanent impairment (ss 24-28) and household and attendant services (ss 29-29A). Sections 30 to 33 are concerned with the redemption of compensation and payment of compensation.

An “employee” is defined in s 4(1) with reference to s 5. There is no need to explore that definition because there is no question that Mr Ford is an employee as defined. Has Mr Ford suffered an “injury”? The word “injury” is defined in s 4(1) with reference to s 5A. Section 5A(1) provides:
“In this Act:
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)is 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.”

Section 5A(2) relates to the meaning of “reasonable administrative action” and, again, is not relevant in this case.

Mr Ford did not suffer a disease, which is defined in s 5B, but an injury. The definition of

“injury” must also be read with the provisions of s 6. Beginning with s 6(1), it provides:
“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, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a)as a result of an act of violence that would not have occurred but for the employee’s employment or the performance by the employee of the duties or functions of his or her employment; or
(b)while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or
(c)while the employee was temporarily absent from the employee’s place of work undertaking an activity:
(i)associated with the employee’s employment; or
(ii)at the direction or request of the Commonwealth or a licensee; or

(d)while the employee was, at the direction or request of the Commonwealth or a licensee, travelling for the purpose of that employment; or
(e)while the employee was at a place of education, except while on leave without pay, in accordance with:
(i)a condition of the employee’s employment by the Commonwealth or a licensee; or
(ii)a request or direction of the Commonwealth or a licensee; or
(iii)the approval of the Commonwealth or a licensee; or

(ea)while the employee was travelling between the employee’s place of work and a place of education for the purpose of attending that place in accordance with:
(i)a condition of the employee’s employment by the Commonwealth or a licensee; or

(ii) a request or direction of the Commonwealth or a licensee; or
(ii)the approval of the Commonwealth or a licensee; or

(f)        while the employee was at a place for the purpose of:
(i)        obtaining a medical certificate for the purposes of this Act; or
(ii)       receiving medical treatment for an injury; or
(iii)undergoing a rehabilitation program provided under this Act; or

(iv) receiving a payment of compensation under this Act; or
(v)undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or
(vi)receiving money due to the employee under the terms of his or her employment, being money that, under the terms of that employment or any agreement or arrangement between the employee and the Commonwealth or a licensee, is available, or reasonably expected by the employee to be available, for collection at that place; or

(g)while the employee was travelling between the employee’s place of work and another place for the purpose of:
(i)obtaining a medical certificate for the purposes of this Act; or
(ii)receiving medical treatment for an injury; or
(iii)undergoing a rehabilitation program provided under this Act; or
(iv)undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or

(h)while the employee was, at the direction or request of the Commonwealth or a licensee, at a place:
(i)outside Australia and the external Territories; and
(ii)declared by the Minister by legislative instrument to be a place to which this paragraph applies; or

(i)while the employee was:
(i)at the direction or request of the Commonwealth or a licensee, at a place outside Australia and the external Territories; and
(ii) a member of a class of employees declared by the Minister by legislative instrument to be a class to which this paragraph applies.”

Sections 6(1A) to (3) qualify some of the provisions in s 6(1). Section 6(3), for example, provides that:
“Subsection (1) does not apply where an employee sustains an injury:
(a)while at a place referred to in that subsection; or
(b)during an ordinary recess in his or her employment;
if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.”

Section 6(2) modifies s 6(1)(d), which treats an injury that an employee sustained while travelling for the purpose of his or her employment at the direction or request of the Commonwealth or of a licensee as an injury that arose out of, or in the course of, that employment. It provides that:
“In paragraph (1)(d), the reference to the employee travelling does not include a reference to travelling to or from a place mentioned in paragraph (1)(e) or (f).”

The places that are mentioned in ss 6(1)(e) and (f) are a place of education in the former and specific places related to medical or rehabilitation treatment or examinations or payment of compensation or other moneys described in the latter.

Section 6(1C) is also concerned with s 6(1)(d) when it provides:
“For the purposes of paragraph (1)(d), travel between the employee’s residence and the employee’s usual place of work is taken not to be at the direction or request of the Commonwealth or a licensee.”
Sections 6(1A) and (1B) are concerned with describing when a journey from a place of residence[19] starts. Section 6(1A) provides:
[19] The expression “place of residence” is defined in s 4(1) but it is not relevant in this matter.
“For the purposes of this section:
(a)a journey from a place of residence is taken to start at the boundary of the land where the place of residence is situated; or
(b)a journey to such a place of residence is taken to end at that boundary.”

Section 6(1B) assists in identifying where the boundary of the land where the employee’s place of residence is located:
“If an employee owns or occupies a parcel of land contiguous with the land on which the employee’s residence is situated, the boundary referred to in subsection (1A) is the external boundary of all of the contiguous parcels of land if treated as a single parcel.”

The expression “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.”
Legislative framework in effect before 2007 amendments

Many of the cases relied on in the submissions relate either to the SRC Act as it was enacted before the 2007 Amendment Act. The relevant amendments made by that legislation came into effect on 13 April 2007.[20] They were to repeal s 6(1)(b) and to replace it with ss 6(1)(b) to (g) and to repeal s 6(2) and substitute ss 6(1C) and (2). Other relevant amendments have since been made by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2011 (2011 Amendment Act). That Act repealed and replaced s 6(1)(b) of the SRC Act[21] and added ss 6(1)(h) and (i) with effect from 6 December 2011.[22] The definition of “place of work” remained constant both before and after the amendments.
[20] 2007 Amendment Act; s 2(1); Item 2 with particular reference to Schedule 1, Items 12, 13 and 14
[21] 2011 Amendment Act; s 3 and Schedule 2; Item 1
[22] 2011 Amendment Act; s 2

Although lengthy, I think it necessary to reproduce s 6 as it was in effect before their amendment by the 2007 Amendment Act and the 2011 Amendment Act. In doing so, I will underline the provisions that do not appear in substantively the same terms in s 6 currently. This is not an exact exercise but it is an exercise that shows something of the pattern in the

changes between s 6 as it was previously enacted and as it is now enacted:
“(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, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a)as a result of an act of violence that would not have occurred but for the employee’s employment or the performance by the employee of the duties or functions of his or her employment; or
(b)while the employee:
(i)was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment;
(ii)was travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment;
(iii)was travelling between the place where he or she normally resides and another place, being a place where he or she resides temporarily, as a matter of necessity or convenience, for the purpose of his or her employment;
(iv)was travelling between one of his or her places of work and another of his or her places of work;
(v)was travelling between his or her place of work or place of residence and a place of education for the purpose of attending that place in accordance with:
(A)a condition of his or her employment by the Commonwealth or a licensed corporation; or
(B)a request or direction of the Commonwealth or a licensed corporation;

or for the purpose of attending that place with the approval of the Commonwealth or the licensed corporation, as the case may be, unless he or she was so travelling while on leave without pay;
(vi)was at a place of education, except while on leave without pay, for a purpose referred to in subparagraph (v);
(vii)was travelling between his or her place of work or place of residence and any other place for the purpose of:
(A) obtaining a medical certificate for the purposes of this Act;

(B) receiving medical treatment for an injury; or
(C)undergoing a rehabilitation program provided under this Act;

(D) receiving a payment of compensation under this Act;
(E)undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or
(F)receiving money due to the employee under the terms of his or her employment, being money that, under the terms of that employment or any agreement or arrangement between the employee and the Commonwealth or a licensee, is available, or reasonably expected by the employee to be available, for collection at that place; or

(viii)was at a place for a purpose referred to in subparagraph (vii) [except for the purpose in s 6(1)(vii)(F)].

(1A) For the purposes of this section:
(a)a journey from a place of residence is taken to start at the boundary of the land where the place of residence is situated; or
(b)a journey to such a place of residence is taken to end at that boundary.

(1B)If an employee owns or occupies a parcel of land contiguous with the land on which the employee’s residence is situated, the boundary referred to in subsection (1A) is the external boundary of all of the contiguous parcels of land if treated as a single parcel.
(2)Subparagraph (1)(b)(ii), (iii), (iv), (v) or (vii) does not apply where the travel:
(a)was by a route that substantially increased the risk of sustaining an injury when compared with a more direct route; or
(b)was interrupted in a way that substantially increased the risk of sustaining an injury.

(3)Subsection (1) does not apply where an employee sustains an injury:
(a)while at a place referred to in that subsection; or
(b)during an ordinary recess in his or her employment;
if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.”

CONSIDERATION

In this section of my reasons, I will set out the law as I understand it to be before the 2007 and 2011 Amendment Acts came into effect and then come to the SRC Act as it is presently drafted and applies in this case. I will do that bearing in mind the relevance of that law in interpreting the law as it is presently enacted.

Principles of statutory interpretation
A. The general approach

As Brennan CJ, Dawson, Toohey and Gummow J said in CIC Insurance Ltd v Bankstown Football Club Ltd:[23]
“… Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy …. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd …, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent ….”[24]
[23] [1997] HCA 2; (1997) 187 CLR 384; 141 ALR 618
[24] [1997] HCA 2; (1997) 187 CLR 384; 141 ALR 618 at 408; 634-635 and see also 412; 638 where, subject to one point that does not reflect on this issue, Gaudron J agreed (citations omitted)

I will also refer to previous authorities that have considered the concepts of an injury that “arose out of” or “in the course of” employment both before and after the 2007 Amendment Act and the 2011 Amendment Act made the relevant amendments. In doing so, I have borne in mind the words of the majority in Comcare v PVYW[25] (PVYW) when they said that there was no doubt that close attention needed to be had to what had been said in previous authorities but that the words used by those previous authorities are not to be construed as if they were the words of a statute:
“… The words of the principle articulated in … are not to be applied literally to facts without further consideration of what is conveyed by the reasoning about the principle and without bearing in mind the terms of the SR&C Act and the limit it seeks to place upon an employer's liability for compensation.
A caution about construing the terms of a judgment in this way is frequently stated …. As Gummow J observed in Brennan v Comcare:
‘The concern is not with the ascertainment of the meaning and the application of particular words used by previous judges, so much as with gaining an understanding of the concepts to which expression was sought to be given.’”[26]
[25] [2013] HCA 41; (2013) 250 CLR 246; 303 ALR 1; 136 ALD 1; French CJ, Hayne, Crennan and Kiefel JJ; Bell and Gageler JJ dissenting
[26] [2013] HCA 41; (2013) 250 CLR 246; 303 ALR 1; 136 ALD 1 at [15]-[16]; 256; 5-6 (citations omitted)

The reason for the majority’s concern is clarified when reference is made to the context in which Gummow J made the statement quoted in PVYW. He did so in Brennan v Comcare[27] (Brennan) where he explained the difference between a court’s task in construing statutory text and its task in applying previous decisions expounding the common law. His Honour said of the latter task:
“63. The judicial technique involved in construing a statutory text is different from that required in applying previous decisions expounding the common law. In the latter class of case, the task is to interpret the legal concepts which find expression in the various language used in the relevant judgments. The frequently repeated caution is against construing the terms of those judgments as if they were the words of a statute. The concern is not with the ascertainment of the meaning and the application of particular words used by previous judges, so much as with gaining an understanding of the concepts to which expression was sought to be given.” (emphasis added)
[27] [1994] FCA 1147; (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542; Burchett, Ryan and Gummow JJ

The passage I have underlined is the passage quoted by the majority in PVYW. It is a passage that is concerned with the task of ascertaining and applying the common law. In his judgment in Brennan, Gummow J went on to explain the distinction between that task and the task of statutory interpretation:
“64. The distinction is usefully expressed in the following passage from Judge Posner's work The Problems of Jurisprudence, 1990, page 248:
Translation may be imperfect and alter the meaning of the original doctrine; nevertheless many common law doctrines have a stable meaning, though expressed in a variety of different ways. We are not afraid that we would lose the meaning of negligence if we put it in different words from those used by Learned Hand, or William Prosser, or some other authoritative expositor of the concept.
Statutory law differs in that the statutory text - the starting point for decision, and in that respect (but only that respect) corresponding to judicial opinions in common law decision making - is in some important sense not to be revised by the judges, not to be put into their own words. They cannot treat the statute as a stab at formulating a concept. They have first to extract the concept from the statute - that is, interpret the statute. (There is a sense in which common law judges ‘interpret’ common law, but it is the sense in which ‘interpretation’ means ‘understanding’.)”[28]
[28] [1994] FCA 1147; (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542 at 572-573; 633-634; 559-560
The relevance of the reference to the common law and the difference in the process of reasoning is illustrated by a passage from the judgment of Windeyer J in Damjanovic & Sons Pty Ltd v The Commonwealth[29] (Damjanovic):
“… Analogy – not in the strict mathematical sense, but in the sense of resemblance of facts – has long had a great place in our system of law. It is at the base of the method of precedent in the common law. … [R]easoning by analogy is a rather different process in the development of the common law from its use in the interpretation and application of a statute or of the Constitution. Sir Owen Dixon, in an extra-judicial address he delivered in 1933 (reprinted in Jesting Pilate (1965), p. 13), said of the common law that
‘it has undergone a continuous growth and expansion accomplished by continual deduction and induction. By deduction, a new application is given to an existing principle; many single instances having been thus produced, in course of time a new or developed principle is discerned in them and expounded. By this process of imperfect induction, the secondary principle is established as part of the doctrine of the common law, and plays its part in turn in the production of still more doctrine’.
This, I would respectfully say, is a wholly apt description of the processes of the common law. It points I think the contrast with expositions of the effect of statutes and codes. The process is then one of deduction and subsumption, rather than of imperfect induction. The words of the enactment provide the major premise. The result is not, or ought not to be, the establishment of any secondary principle embodied in new words, but at most the provision of an illustration of the effect in a new setting of the original principle expressed in the original words.”[30]
[29] [1968] HCA 42; (1968) 117 CLR 390; Barwick CJ, McTiernan, Kitto, Taylor, Menzies and Windeyer JJ
[30] [1968] HCA 42; (1968) 117 CLR 390 at 408-409
I will also bear in mind that, as a general principle, words and sentences used in legislation are not to be regarded as superfluous or insignificant. The starting point is that all words must be given some meaning and effect. Authorities for this general proposition and some limited qualifications to this principle are explained in [2.26] of Statutory Interpretation in Australia.[31] On the view I reach, I do not need to consider the qualifications.
[31] DC Pearce and RS Geddes, 8^th edition, LexisNexis Butterworths, Australia, 2014
B. Beneficial or remedial legislation
Although it is described as beneficial legislation and as a workers’ compensation scheme, the scheme set out in the SRC Act is increasingly gaining a character more akin to that of a scheme of insurance than that of a scheme providing benefits to employees. Putting aside licensees for the moment, Comcare is the insurer and Commonwealth authorities, rather than their employees, are the insured. Commonwealth authorities pay premiums to Comcare to insure them against liability that arises from claims made by their employees. Their liability and employees’ entitlements under the scheme are largely limited by the terms of the SRC Act. I say “largely” limited by those terms for Part IV of the SRC Act recognises that there are certain circumstances in which the Commonwealth or a Commonwealth authority is liable to an employee in an action for damages.

Before the SRC Act came into operation on 1 December 1988, payments were made from the Consolidated Revenue Fund (CRF). After that date, Comcare has been required to discharge any liability (other than those that arose because of an event or process that happened or commenced before 1 December of that resulted in injury, loss or damage that first manifested itself on or after that date and which continue to be paid from CRF[32]) from Comcare-retained funds.[33] These are funds that are held by Comcare and attributable to premiums, special premiums, exit contributions and interest paid on them.[34] The amount of those premiums is determined in accordance with guidelines issued by the Safety, Rehabilitation and Compensation Commission established under s 89A.[35] Section 97A sets out the matters that Comcare must take into account in setting the premium for an entity or Commonwealth authority. In essence, the amount of the premium and special premiums that are levied should, together with interest earned on them, be sufficient to meet Comcare’s liability under the SRC Act in respect of that entity or Commonwealth authority’s employees.
[32] SRC Act; s 90B
[33] SRC Act; s 90C(1)
[34] SRC Act; s 90C(5)
[35] SRC Act; s 97
If the scheme of compensation established by the SRC Act does indeed have the characteristics of an insurance scheme, a question arises as to whether it can still be characterised as beneficial or remedial legislation enacted for the benefit of employees or whether it has become a legislative determination of the allocation of risk in particular circumstances. If it can be regarded as beneficial or remedial legislation, it will:
“… if any ambiguity existed, like all such Acts … be construed beneficially … This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow. …”[36]
[36] Bull v Attorney-General for New South Wales (1913) 17 CLR 370 at 384 per Isaacs J
If the terms of the SRC Act were reproduced in a contract of insurance, they would be the subject of the contra proferentum principle in any event. Application of that principle would require any obscurely or ambiguously worded provision to be interpreted in favour of the insured rather than the insurer.[37] In the case of the SRC Act, a Commonwealth authority is the insured and not the employee. Interpreting any ambiguity in favour of the Commonwealth authority on the basis that it is the insured would not necessarily be to do so in favour of an employee for the liability of the Commonwealth authority is the entitlement of the employee.

[37] Western Australian Bank v Royal Insurance Co (1908) 5 CLR 533 at 567 per O’Connor J and CE Heath Underwriting & Insurance (Aust) Pty Ltd v Edward Dunlop & Co Pty Ltd (1993) 176 CLR 533 at 548 per Dawson, Toohey and McHugh JJ

So long as that remains the case and the SRC Act retains its present balance, I do not think that it is appropriate to characterise it as providing a form of insurance and interpret it on that basis. It is preferable to continue to regard it as beneficial or remedial legislation. That is particularly so when applying the principles of statutory construction. I do not need to consider the matter further for I have decided that there is no ambiguity in the relevant provisions and have not had to apply any such principles.
Principle of comity
The principle of comity is a principle that has been described by the High Court in cases such as Farah Constructions v Say-Dee Pty Ltd:[38]
“… Intermediate appellate judges and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong … Since there is common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law. …”[39]
[38] [2007] HCA 22; (2007) 230 CLR 89; Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ
[39] [2007] HCA 22; (2007) 230 CLR 89 at [135]; 151-152 (citations omitted)
The Tribunal is not an appellate court, intermediary or otherwise. Its work is like that of a trial judge in so far as it must ascertain (although not determine) the law, consider the evidence and make findings of fact and come to a decision. Where its work differs from that of a trial judge comes about when it concludes that, on the law and the evidence, it can make more than one decision that is the correct decision. When this occurs, it has to decide which of those correct decisions it will select as its decision. This is a discretionary decision but the boundaries within which it makes its selection are drawn by any express provisions in the relevant enactment and by those implicit in the objects and purpose of that enactment. This is the process that the Tribunal is obliged to follow. In carrying it out, the Tribunal:
“…In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists ..., that regard must be had to the relevant considerations, and that matters ‘absolutely apart from the matters which by the law ought to be taken into consideration’ must be ignored ...”[40]
[40] Drakev Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577;
Unlike a trial Judge in a court, the Tribunal may not necessarily fulfil its obligation by having regard only to the pleadings lodged on behalf of the parties. Its obligation to reach the correct or preferable decision is not simply to resolve a dispute between the parties on issues they have chosen to agitate. It must reach, as I have said, the decision that is the correct decision in law and having regard to the evidence and, if more than one such decision, select the preferable decision. That law may be law that is drawn to the Tribunal’s attention by the parties or it may not. If it is not, the Tribunal has an obligation to draw it to the parties’ attention and to consider any submissions they make on it before coming to its decision.

The point was also made by the Full Court of the Federal Court in Grant v Repatriation Commission:[41]
“ An inquisitorial review conducted by the AAT, as with the Refugee Review Tribunal, is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the ‘case’ articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant: see Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 at [23] and Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15]).
In the present matter the AAT dealt with the ‘case’ articulated by the appellant and, as a consequence, focused its attention and fact finding on the reason why the appellant ceased working as a sheep farmer at some time between 1986 and 1993. As explained above the AAT's determination of that matter was relevant to, but not determinative of, the matters the AAT was required to address under s 24(2A)(d). That sub-section required the AAT to make a determination as to whether the appellant was prevented from continuing to engage in his last paid work during the assessment period solely because of incapacity from war-caused injury or disease. We are satisfied that the AAT failed to address that issue, which it was required to address, and thereby erred in law by not applying itself to the question which the law prescribes: see The King v War Pensions Entitlement Appeal Tribunal [1933] HCA 30; (1933) 50 CLR 228 at 242-243.”[42]
[41] [1999] FCA 1629; (1999) 57 ALD 1; Merkel, Goldberg and Weinberg JJ
[42] [1999] FCA 1629; (1999) 57 ALD 1 at [18]-[19]; 6
For these reasons, I do not consider that the principle of comity has any place in Tribunal proceedings. I will return below to the particular Tribunal cases to which I was referred.
Distinction between an injury “arising out of” employment and an injury “in the course of” employment
Although I appreciate that an injury may, on occasion, be said both to have arisen out of an employee’s employment and to have arisen in the course of that employment, I have briefly set out the way in which each is determined. I have done so without reference to any qualification that may exist in the SRC Act either presently or at an earlier time.
A. Injury “in the course of” employment
I will begin with Hatzimanolis v ANI Corporation Ltd[43] (Hatzimanolis), in which the High Court considered the expression in the context of the Workers Compensation Act 1987 (NSW). The majority judgment analysed a number of previous authorities but began with the proposition that:
“… 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.”[44]
[43] [1992] HCA 21; (1992) 173 CLR 473; 106 ALR 611; Mason C.J., Deane, Dawson, Toohey and McHugh JJ
[44] [1992] HCA 21; (1992) 173 CLR 473; 106 ALR 611 at 483; 617 per Mason C.J., Deane, Dawson and McHugh JJ
Their Honours referred to the case of Danvers v Commissioner for Railways (NSW)[45] (Danvers), in which an employee was found to have died in the course of his employment when his accommodation, provided by the employer and located near his work as his own home was too far away, caught fire while he was inside. They said:
“ The distinction between an injury sustained by a railway worker as in Danvers and a non-compensable injury sustained by an ordinary employee after the day’s work has ceased lies not so much in the employer’s attitude to the way the interval between the periods of actual work was spent but in the characterisation of the period or periods of work of those employees. For the purposes of workers’ compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home. On the other hand, there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work. Where, for example, as in Danvers, an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work. An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality.”[46]
[45] [1969] HCA 64; (1969) 122 CLR 529; Barwick CJ, McTiernan, Kitto and Windeyer JJ; Menzies J dissenting
[46] [1992] HCA 21; (1992) 173 CLR 473; 106 ALR 611 at 483; 617
The rationale for this approach is found in the conclusion that the majority in Hatzimanolis reached after reviewing previous authorities:
Moreover, Oliver [Commonwealth v Oliver (1962) 107 CLR 353] and the cases which follow it show that an interval or interlude in an overall period or episode of work 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. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. 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’ … [Danvers (1969) 122 CLR, at p 537].”[47]
[47] [1992] HCA 21; (1992) 173 CLR 473; 106 ALR 611 at 484; 617-618
In Comcare v Mather and Mitchell[48] (Mather and Mitchell), Kiefel J rejected a submission that the principles in Hatzimanolis required that an employee must be directed to a particular place or authority must be given for an identified activity before he or she could be said to have been in the course of his or her employment. Her Honour said that:
“ The place at which or the activity undertaken at the time of the injury was not said in Hatzimanolis to have been previously expressed or identified by the employer. It happened that such an inference could be drawn there. An injury will, within the statement of principles, have occurred at a ‘particular’ place if it can be found to fall within the ambit of the employer’s encouragement or inducement which may, in its terms, leave some matters to the decision of the employee. The statement of principles read, with the preceding analysis of case law, discloses an attempt to provide a satisfactory connection between injury and employment by a temporal connection (and as to which see Inverell Shire Council v Lewis (1992) 8 NSWCCR 562) which is strengthened by connection via the employer, the ‘nexus’ of which Lockhart J spoke in Comcare v McCallum (1994) 49 FCR 199 at 204. …”[49]

[48] [1995] FCA 1216; (1995) 56 FCR 456; 37 ALD 463; 21 AAR 297

[49] [1995] FCA 1216; (1995) 56 FCR 456; 37 ALD 463; 21 AAR 297 at [21]; 468; 303

Section 45(1) of the Defence Act 1903 provides that:
“Members of the Australian Regular Army or of the Regular Army Supplement are bound to render continuous full time military service.”

Mather and Mitchell concerned members of the Australian Army who were engaged in Kangaroo 92. Kangaroo 92 involved them in three months of simulated combat exercises in northern Australia. Only local leave was granted during the three month period. There is nothing in Kiefel J’s judgement which suggests that the fact that a person is a member of the Australian Regular Army and so bound to render continuous full time service is relevant in considering whether he or she was in the course of his or her employment. Equally, there is nothing in her judgment to suggest that the fact that a person is at the place of her employment (i.e. Broadmeadows) necessarily resolves the question whether that person was injured “in the course of … employment”. Whether or not a person is required to “render full time continuous service”, there remains the question whether there is the necessary connection between the injury and the person’s employment. That connection is a temporal connection as Kiefel J explained it.

This was also the approach adopted by Cooper J in Gregoryv Comcare.[50] Mr Gregory had been a member of the Fire Section in the RAAF. A farewell barbecue, catered for in part by RAAF cooks, was organised for him at the Airmen’s Club on a RAAF base. The farewell was held during working hours and Mr Gregory’s roster was altered so that he was not
[50] Gregory v Comcare (1997) 72 FCR 196

rostered for duty and could attend. Cooper J said:
“The judgment of the majority in Hatzimanolis did not, in my view, affect the proposition that for an injury to be said to arise in the course of employment the connection which must be established between the occurrence of the injury and the employment is a temporal connection (see Commonwealth of Australia v Lyon 24 ALR at 303-304). What their Honours did in Hatzimanolis was provide to tribunals of fact reasoned guidance, by way of a ‘unifying principle’, in determining whether that temporal connection exists in circumstances where the injury in question is sustained during an interval between periods of actual work. Their Honours concluded that the distinction between a compensable and a non-compensable injury occurring in such an interval, where the employer had induced or encouraged the employee to spend the interval at a particular place or in a particular way and the injury was sustained at that place or while the employee was engaged in that activity, was to be drawn by a characterisation of the period or periods of work of the particular employee. That characterisation highlights the temporal nature of the connection between the place or activity at or during which the injury occurred and the employment.
The logical corollary of the approach adopted by the majority in Hatzimanolis is that, ordinarily, an injury which occurs in an interval between two discrete periods of work, even if the injury occurs at a place or in the course of an activity which the employer induced or encouraged the employee to spend the interval in or doing, will not be an injury which occurs in the course of employment. This is because, putting aside injuries suffered while travelling to and from work and the like which are specifically provided for under the Act (see s 6), the end of the discrete period of work breaks any temporal connection between the employment and the place at which or activity during which the injury is sustained.
The example given by the majority in Hatzimanolis of the employee who is encouraged by his or her employer to see a doctor after working hours illustrates the point. Whilst it might be said that an injury sustained by the employee while visiting the doctor is in some way causally connected to his or her employment, there can be no question of a temporal connection.
That is not to say that an injury occurring in an interval between two discrete periods of work can never be one occurring in the course of employment. In any given case, there may be a feature or features of the particular facts and circumstances which establishes a sufficient temporal connection between the place or the activity and the employment.”[51]

[51] (1997) 72 FCR 196 at 201-201

In PVYW, the majority explained that it had been observed in Hatzimanolis that the expression “course of employment” covered not only the actual work done by an employee but what was incidental to it. To say that something was “incidental” to another was to state a conclusion and not a test and that point had also been made in Hatzimanolis.[52] The test that the High Court had adopted in Hatzimanolis was, the majority in PVYW said, to be found in the legal justification that the Court had put forward for regarding an injury, which had occurred between periods of Mr Hatzimanolis’s actual work, being regarded as having occurred in the course of his employment. The legal justification that the Court put forward was that Mr Hatzimanolis had been induced or encouraged to take that break.[53] The majority in PVYW went on to explain:
“ Because the employer’s inducement or encouragement of an employee, to be present at a particular place or to engage in a particular activity, is effectively the source of the employer’s liability, the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do. It is to be inferred from the factual conditions stated in Hatzimanolis … that for an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs.
36. Moreover, it is an unstated but obvious purpose of Hatzimanolis to create a connection between the injury, the circumstances in which it occurred and the employment itself. It achieves that connection by the fact of the employer’s inducement or encouragement. Thus, where the circumstances of the injury involve the employee engaging in an activity, the question will be whether the employer induced or encouraged the employee to do so.”[54]
[52] [2013] HCA 41; (2013) 250 CLR 246; 303 ALR 1; 136 ALD 1 at [19]; 257; 6-7
[53] Mr Hatzimanolis’s employer had arranged to take a group of its employees from Mt Newman where they worked to Wittenoom Gorge on a Sunday. The employees were not required to work on that day or on any other Sunday unless rostered to do so. Otherwise, they worked for six days each week over a three month period.
[54] [2013] HCA 41; (2013) 250 CLR 246; 303 ALR 1; 136 ALD 1 at [35]-[36]; 261; 10 (citations omitted)
How is that question answered? The majority in PVYW explained the process:
“… 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.
39. It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. An employer’s inducement or encouragement to be present at a place is not relevant in such a case.”[55]
[55] [2013] HCA 41; (2013) 250 CLR 246; 303 ALR 1; 136 ALD 1 at [38]-[39]; 262; 10
There is no element of causation in this exercise but there must be a connection between the injury and the circumstance in which the injury was suffered. As the majority said in PVYW:
“… It is that circumstance which must be the subject of the employer’s inducement or encouragement.”[56]
That is to say:
“… For present purposes that understanding is helpful to explain, if it be necessary, that for an injury occurring in an interval in a period of work to be in the course of employment, the circumstance in which an employee is injured must be connected to the inducement or encouragement of the employer. An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured whilst engaged in an activity at that place.”[57]
[56] [2013] HCA 41; (2013) 250 CLR 246; 303 ALR 1; 136 ALD 1 at [44]; 263; 11
[57] [2013] HCA 41; (2013) 250 CLR 246; 303 ALR 1; 136 ALD 1 at [60]; 269; 15
The case of The Star Pty Ltd v Mitchison[58] provides a more recent application of the principles. Mr Mitchison was employed by The Star Pty Ltd (Star) as a bellboy at a hotel. Star also owned a nightclub. Before the nightclub opened for business officially, Star held an event to trial service procedures and to allow its employees to have an opportunity to inspect its facilities before it was opened to the general public. Staff of the hotel were invited to put down their names if they wished to attend and were not rostered to work that evening. Free drinks and a DJ would be provided all night. During the event, a mock fire drill was held and Mr Mitchison lost his balance and was pushed down the stairs. Star paid him workers’ compensation but the issue was whether Mr Mitchison had a right to commence common law proceedings against Star for damages. If he had suffered his injury in the course of or arising out of his employment, he could not commence those proceedings.
[58] [2017] NSWCA 149; Beazley P, McColl and Payne JJA
The New South Wales Court of Appeal decided that the trial Judge had been correct in finding that Mr Mitchison’s injury had not arisen in the course of his employment. Mr Mitchison was not employed to work in the nightclub and the invitation to put his name down to attend the event did not meet the description of an encouragement or inducement to be at the event.[59]
[59] [2017] NSWCA 149 at [73]-[76] per Payne JA with whom Beazley P and McColl JA agreed
B. Injury “arising out of” employment
By way of contrast, identification of an injury that “arose out of” employment is an exercise in causation. It is an exercise requiring a causal connection between an injury and the employment or its incidents.[60]
[60] Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547 at 556 per Dixon J
The critical question to ask in identifying whether an injury arose out of an employee’s employment was stated by Starke J in Stewart v Metropolitan Water, Sewerage and Drainage Board[61] (Stewart):
“… did it arise from a risk reasonably incident to the work which he was called upon to perform? …”[62]
[61] [1932] HCA 45; (1932) 48 CLR 216; Gavan Duffy CJ, Rich, Starke, Evatt and McTiernan JJ; Dixon J dissenting
[62] [1932] HCA 45; (1932) 48 CLR 216 at 228
Mr Stewart was employed as an overseer and inspector of work carried out by the Metropolitan Water, Sewerage and Drainage Board (MWSD Board). The MWSD Board required him to be present when any work was undertaken. A primus was used in that work to heat plumbite but also to boil the billy for the workers’ tea. When it was being used for the latter purpose, the primus exploded and killed Mr Stewart who was standing by while he and the other workers all waited for the billy to boil. There was no evidence that Mr Stewart’s duties as overseer required him to be near the boiling billy or the primus at that particular time. As Starke J said:
“… His duties, as overseer, required his presence in the vicinity of the work, and, therefore, it is no doubt true that but for his employment he would not have been at the place where the accident happened at the time of its occurrence. But it is not enough to satisfy the condition expressed by the words ‘arising out of the employment’ that the fact of employment was one of the conditions of the occurrence of the accident. A closer causal connection is required. ‘The injury by accident must have occurred as something which would not have occurred but for the circumstance of the employment and as having been something due to it, the employment …’ (Lancashire and Yorkshire Railway Co. v Highley … [(1917] AC at 360 per Viscount Haldane]).”[63]
[63] [1932] HCA 45; (1932) 48 CLR 216 at 230
The issue to determine in deciding whether the accident arose out of Mr Stewart’s employment was whether it had arisen:
“… from a risk reasonably incident to the work which he was called upon to perform? The inspector or supervisor had to hazard, in the performance of his duties, the acts or omissions of the contractor’s men in the performance of their duties in the work on which they were engaged. Thus, if these men had been using the primus stove for heating plumbite for use upon the job when it exploded, then the causal connection between the inspector's employment and the accident would have been clear enough. But in fact the water was being boiled, not for use upon the job, but for the lunch of the contractor's men employed upon the job. The contractor, however, contemplated that his men should have lunch, and his ganger directed one of them to boil the billy. It is a reasonable inference — or at least an inference which the Workers’ Compensation Commission was entitled to draw —that boiling the billy for lunch was within the employment and duty of the contractor’s man who was directed to do it (Morris v Mayor &c of Lambeth … [(1905) 22 TLR 22; Smidmore v. London and Thames Haven Oil Wharves Ltd …. [(1921) 14 BWCC 114], queried in Ruegg's Workmen's Compensation, 9th ed. (1922), p. 95). It was, as it seems to me, part of the inspector’s or supervisor’s employment to hazard any risk attached to this operation, though he was not supervising, but just idly watching the operation: it was a risk reasonably incident to his work as inspector or supervisor.
The causal connection between the employment and the accident is found here not so much in the risk attaching to a particular locality, but in the risk attached to the operations of the contractor’s men within the sphere of their employment on the job, which the inspector was employed to watch or supervise. The risk in each case, however, is one reasonably incident to the work which it was the duty of the workman to perform.”[64]
[64] [1932] HCA 45; (1932) 48 CLR 216 at 228
Starke J considered the meaning of the expression “arising out of” further in Smith v Australian Woollen Mills Ltd[65] when he set out the following propositions:
“          The decisions upon the Workers’ Compensation Acts are numerous, but the following propositions have, I think, been established:
1.      The expression ‘arising out of’ imports some kind of causal relation with the employment, but does not necessitate direct or physical causation. Was it part of the injured person’s employment to hazard, to suffer, or to do that which caused his injury? It must arise out of the work which the worker was employed to do – out of his service (Stewart v Metropolitan Water, Sewerage and Drainage Board …, and the cases there cited).
2.      An injury does not cease to arise out of the employment because its remote cause is the idiopathic condition of the injured man. The idiopathic condition must be dissociated from the other facts (Wicks v Dowell & Co … [(1905) 2 KB 225].
3.      An injury which arises directly out of circumstances encountered because to encounter them falls within the scope of employment is an injury arising out of employment. If the worker is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once associates the injury with his employment (Upton v Great Central Railway Co. [(1924) AC at pp 307, 308]; Brooker v Thomas Borthwick & Sons (Aus) Ltd … [(1933) AC 669; (1933) NZLR 1118].”[66]
[65] [1933] HCA 60; (1933) 50 CLR 504; Gavan Duffy CJ, Rich, Starke, Dixon, Evatt and McTiernan JJ
[66] [1933] HCA 60; (1933) 50 CLR 504 at 517-518
In more recent times, the High Court considered a similar issue in the context of s 70(1) of the Veterans’ Entitlements Act 1986 (VE Act).[67] Section 70(1) provided that the Commonwealth was liable to pay a pension by way of compensation to a member of the armed forces incapacitated from a defence-caused injury. Section 5(a) provided that an injury is taken to be a defence-caused injury if it arose out of, or was attributable to, any defence service of the member. Mr Roncevich claimed that he had suffered a defence-caused injury when, after returning to his private quarters from a function held at the sergeant’s mess, he fell from a first floor window and injured his knee. The Repatriation Commission (Commission) rejected his claim for compensation on the basis that his injury had been caused by his intoxication and was neither caused by, nor arose out of, any task he was required to perform as a soldier.
[67] Roncevich v Repatriation Commission [2005] HCA 40; (2005) 218 ALR 733; 41 AAR 355; 85 ALD 257; McHugh, Gummow, Kirby, Callinan and Heydon JJ
In affirming the Commission’s decision, the Tribunal had asked itself whether Mr Roncevichs’ intoxication was caused by, or arose out of, a task that he had to do as a soldier. In a joint judgment, McHugh, Gummow, Callinan and Heydon JJ stated that this was the wrong question to ask. The correct question was whether the injury arose out of, or was attributable to, any defence service of Mr Roncevich. As Dixon J said in Henderson:
“… whether an event arises in the course of an activity, or as here, out of ‘an activity’, depends on such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connection must however be causal and not merely temporal one …”.[68]
[68] 2005] HCA 40; (2005) 222 CLR 115; 218 ALR 733; 41 AAR 355; 85 ALD 257 at [23]; 125;364; 265 per McHugh, Gummow, Callinan and Heydon JJ
Again, a more recent illustration of the application of the principles is found in The Star Pty Ltd v Mitchison:
“86. The submission that the injury suffered by the respondent was not one which ‘arose out of his employment’ should be accepted. The respondent was a bellboy. He was not rostered to work at the time of the incident. He was injured during an interval away from the hotel which was his place of work. He was not required to be at Marquee nightclub at the time of the accident. The respondent went to the applicant’s separate premises, the Marquee nightclub not the hotel where he worked, although they are reasonably close by, not to perform work but to drink with colleagues.
87. A conclusion that the injury was one arising out of employment cannot be drawn. The critical enquiry is what the respondent actually did in his employment. Nothing about what the respondent did as part of his employment caused the injury he suffered on this occasion. Stewart makes clear that it was not sufficient, as the applicant submitted, that the injury was one ‘arising out of’ employment because ‘but for’ the employment, the worker would not have been at the scene of the accident.”
The entry and exit or ingress and egress cases
The oldest of the cases, to which I was referred, is McCullum v Northumbrian Shipping Company Limited.[69] Reference was made to it in Weaver v Tredegar Iron and Coal Co Ltd[70] (Weaver) and I will begin with that case. A railway company built a railway platform to serve a railway line it owned and operated. The railway tracks ran alongside land owned by a colliery and its platform was built on land owned by the colliery. The railway company had agreed with the owner of the colliery that some of its trains would stop at the platform to allow the colliery owner’s employees to embark and disembark. Those stops were not shown in the timetable and members of the public could not gain access to the platform in order to board those trains that did stop. The colliery owner paid for its employees’ fares, which were calculated at a reduced rate, and deducted the cost from their wages. The employees could have chosen to go home by means of the main road which also ran alongside the colliery but most did not. Mr Weaver was injured when he was pushed from the railway platform by fellow employees trying to board the train.
[69] (1932) 147 LT 361; Lords Atkin, Warrington, Tomlin, Thankerton and Macmillan
[70] [1940] 3 All ER 157; House of Lords (Lord Atkin, Lord Wright, Lord Romer and Lord Porter; Viscount Maugham dissenting)

The expression “place of work” is defined and I have set it out at [27] above. It 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 word “place” may be used to describe a wide variety of venues or areas e.g. “… a building, room, piece of ground, etc, particularly one assigned to some purpose ¨ place of business ¨ place of worship. …”[92] Identifying whether a particular place is a place at which an employee is required to attend for the purpose of carrying out the duties of his or her employment becomes a question of fact in each case.
[92] Chambers
Reconciling sections 6(1) and 6(1C)
To this point, my analysis of the authorities would seem to me to be consistent with that made by Murphy J in Bowden. The case that I must consider takes me, however, beyond the issue that he considered i.e. whether Mr Bowden’s injury arose out of, or in the course of, his employment. The evidence that I have raises the issue whether Mr Ford’s injury comes within s 6(1) but is excluded from being considered to have arisen out of, or in the course of his employment, by s 6(1C).
The starting point is s 6(1)(d). At the same time that it was inserted in the SRC Act by the 2007 Amendment Act, s 6(1)(b)(ii) was repealed. Section 6(b)(ii) had expressly provided that an injury that was sustained while an employee was travelling between his or her place of residence and place of work, other than during an ordinary recess in employment, was to be treated as having arisen out of, or in the course of, that employment. It is apparent from the principles established in cases such as Hatzimanolis and PVYW that, without s 6(1)(b)(ii), an injury that was sustained while an employee was travelling between his or her place of residence and place of work would not be regarded as having arisen out of, or in the course of, his or her employment except in very limited circumstances. Those limited circumstances apply by virtue of the ordinary meaning of the expression “arising out of, or in the course of,” employment.

Section 6(1)(b)(ii) expressly extended what was to be taken to be included in the ordinary meaning of the expression. By repealing s 6(1)(b)(ii) and inserting s 6(1)(d), Parliament has replaced one express extension beyond what would ordinarily come within the expression “arising out of, or in the course of,” employment with another. That other is an injury that is sustained while the employee was, at the direction or request of the Commonwealth or of a licensee, travelling for the purpose of that employment. In replacing one extension with another, Parliament has expressly excluded from the replacement extension provided for in s 6(1)(d), any travel between the employee’s residence and usual place of work. It has achieved that by providing in s 6(1C) that any such travel “… is taken not to be at the direction or request of the Commonwealth or a licensee.” Section 6(1C) is drafted in terms that apply solely to the extension in s 6(1)(b) and do not affect the ordinary meaning of the expression “arising out of, or in the course of,” employment.
The careful language that Parliament has used shows that it has not altered the exposition of the expression “arising out of, or in the course of, employment” given by the High Court in cases such as Hatzimanolis and PVYW. That expression is used in the opening words to s 6(1). The paragraphs that follow expressly apply “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 …”.
In practical terms, that would mean, for example, that an injury suffered by an employee travelling from his or her place of residence to his or her place of work on a public road or footpath, would not be compensable per se. What it would do is to leave open liability to be determined by reference to the principles established by cases such as Hatzimanolis and PVYW when an employee does not seek to, or is unable to, bring his or her circumstances within one of the specific circumstances described in ss 6(1)(a) to (i).

This interpretation is consistent with the words that have been used in light of the object and purpose of the SRC Act. Its Long Title states that it is:
“An Act relating to the rehabilitation of employees of the Commonwealth and certain corporations and to workers’ compensation for those employees and certain other persons, and for related purposes.”

What of the Explanatory Memorandum?

I do not think that this is a case in which I need to turn to the Explanatory Memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 that became the 2007 Amendment Act (Explanatory Memorandum). Section 15AB(1) of the Acts Interpretation Act 1901 (AI Act) provides that regard may be had to material capable of assisting in the ascertainment of the meaning of the provision:
“(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b)to determine the meaning of the provision when:
(i)the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.”[93]
[93] AI Act; s 15AB(1)
I do not consider the meaning of s 6(1) or s 6(1C) to be obscure or that meaning to lead to a result that is manifestly absurd or unreasonable within the meaning of s 15AB(1)(b) of the AI Act. In so far as s 15AB(1)(b) is concerned, the ordinary meaning conveyed by the text of those provisions seems clear taking into account the context in which they appear in the SRC Act and the purpose and object underlying the Act. I would not ordinarily see the need to refer to the Explanatory Memorandum but I will for this is an occasion on which it seems to me that what Parliament has actually enacted is not that which those who prepared the Explanatory Memorandum intended it to enact.
The Outline at the beginning of the Explanatory Memorandum states, in part:
“The Bill amends the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) to maintain the financial viability of the scheme – which has come under growing pressure from increasing numbers of accepted claims, longer average claim duration and higher claim costs, partly as a result of court interpretations of the legislation. The amendments will also improve the administration and provision of benefits.
The principal amendments will be:
…
·remove claims for non work-related journeys and recess breaks where the employer has no control over the activities of the employee;
...”
There then follows a short Financial Impact Statement noting that the amendments to the treatment of journey claims and recess break claims are estimated to produce savings of $15 million per annum to Comcare’s premium pool. In addition, self-insurers will save $5.4 million from the changes. The net savings will be spread across all Commonwealth departments and agencies covered by Comcare and self-insurers under the scheme.

A comprehensive Regulation Impact Statement follows setting out court interpretations of particular provisions of the SRC Act, impact analyses, a report by the Productivity Commission regarding possible models for national frameworks for occupational health and safety and workers’ compensation, views expressed by stakeholders, problems perceived in the SRC Act as then drafted and options to address those problems. One problem that was identified comprised journeys to and from work and another comprised recess breaks. At the time, s 6(1)(b) specifically treated an injury that was suffered by an employee travelling between his or her place of residence and place of work, other than during an ordinary recess in that employment, as having arisen out of, or in the course of his or her employment. If the injury was suffered while an employee was temporarily absent from his or her place of work during an ordinary recess in his or her employment, the injury was treated in the same way by virtue of s 6(1)(b)(i) of the SRC Act as it was drafted before the amendments made by the 2007 Amendment Act.
The Notes to the Clauses explain what was intended. Although an injury that occurred in a recess in employment is not the subject of this case, I note that regard should not be had to the Explanatory Memorandum in relation to such a recess. I say that for it is the subject of s 6(1)(b), which was inserted by the 2007 Amendment Act but subsequently repealed and replaced by a new s 6(1)(b) by the 2011 Amendment Act. That is the form in which it is to be found in the SRC Act as currently enacted.

Sections 6(1)(d) and (1C) have remained unchanged since their insertion by the 2007 Amendment Act. The Explanatory Memorandum explained at Items 12 and 13:
“Section 6 currently provides that when an employee undertakes certain specified journeys he or she is deemed to be in the course of his or her employment. This covers not only journeys to and from work but also a number of other journeys, for example, journeys between work or residence and place of education. In its March 2004 report on National Workers’ Compensation and Occupational Health and Safety Frameworks, the Productivity Commission recommended that ‘coverage for journeys to and from work not be provided, on the basis of lack of employer control, [and] availability of alternative cover in most instances’. The Government supported these recommendations in principle.
New paragraph 6(1)(d) will provide that the SRC Act will apply to injuries that occur while the employee was travelling, at the request or direction of the employer, for the purposes of the employment.
Paragraphs 6(1)(e) and (f) retain the previous provisions which applied coverage under the Act to:
·attendance at places of education where required, directed or with the approval of the employer
·obtaining a medical certificate or receiving medical treatment for an injury
·undergoing a medical examination, rehabilitation assessment as required under the Act
·undergoing a rehabilitation program
·receiving payment of compensation
·at a place to receive money due to him or her under the terms of his or her employment.
Item 13 inserts new subsections 6(1C) and (2).
New subsection 6(1C) makes clear that normal travel between an employee’s residence and usual place of work is not taken at the direction or request of the employer.
New subsection 6(2) makes clear that travel for the purposes of paragraphs 6(1)(e) and (f) is not covered by the Act.
These amendments to section 6 address a concern that employers are being held liable for injuries for the activities of their employees that are beyond their control. The amendments also seek to align liability for workers’ compensation with employer duties under the Occupational Health and Safety (Commonwealth Employment) Act 1991 (the OHS Act). Under the OHS Act an employer has a duty of care and must take all reasonably practicable steps to protect the health and safety of workers at the workplace. This duty of care does not apply once an employee leaves the workplace to undertake his or her own private pursuit, eg to go shopping at lunch time.
Workers’ compensation will continue to be payable in respect of injuries arising from circumstances where an employer is able to take reasonably practicable steps to protect an employee, eg when the employee remains at the workplace during a recess or leaves the workplace for the purposes of his or her employment or at the employer’s direction.”
I do not quibble with this passage from the Explanatory Memorandum. It is consistent with the amendments in fact made. It correctly gives examples of situations in which an employer does not have a duty of care to an employee. Under the Occupational Health and Safety (Commonwealth Employment) Act 1991, for example, an employer does not have a duty of care to an employee who leaves the workplace to undertake his or her own private pursuit such as shopping. Implicit in the statement is the suggestion that the employee would not be entitled to compensation under the SRC Act if injured while engaging in that shopping pursuit. No reference is made, however, to s 6(1)(b) which expressly provides that an injury shall be treated as having arisen out of, or in the course of, an employee’s employment if that employee was “temporarily absent from that place [of work] during an ordinary recess in that employment.” The expectation in the last paragraph of the extract from the Explanatory Memorandum seems to be that only an employee who remains at work during a recess will be entitled to compensation under the SRC Act.

The passage from the Explanatory Memorandum does not address the particular wording of ss 6(1)(d) and (1C). That wording is carefully chosen and its meaning is clear. Even if I could have regard to the Explanatory Memorandum in that situation, I do not think that the wording can be read down in light of an Explanatory Memorandum, which is directed more to the broad policy desires behind the amendments rather than addressed to what they have in fact achieved.
Previous Tribunal authorities
I was referred to several Tribunal authorities and I have set them out at [18] above. Beginning with Perera, I note that Deputy President Constance began by stating that Mr Perera was injured at the entrance to the office building in which he works as an employee of the Australian Bureau of Statistics. He claimed compensation but:
“Comcare denied liability to compensate Mr Perera on the basis that at the time he was injured he was travelling between his place of residence and his place of work. Since the amendments to the Act made in 2007, injuries suffered in these circumstances are not compensable.”[94]
The only issue for determination was whether Mr Perera was at his “place of work” at the time he was injured. That followed from a reading of s 6(1)(b).[95]
[94] [2009] AATA 499 at [2]
[95] [2009] AATA 499 at [7] and [8]
I respectfully agree that this is one issue that needs to be considered but, for the reasons I have given, I respectfully disagree that all injuries sustained while travelling between an employee’s place of residence and place of work are not compensable. Sections 6(1)(d) and (1C) have not, I respectfully suggest, achieved the purpose that might have been intended by the Executive.
Senior Member Creyke took a similar view in Green, McKenzie and Hughes. Taking McKenzie as an example, she stated:
“ It is agreed that the changes to the Act by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth) were intended to ‘remove claims for non work-related journeys and recess breaks where the employer has no control over the activities of the employee’. …”
The Foot Note to this passage reads: Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth) I, xiii.” Again, I would respectfully disagree with this statement. It accepts what is said in the Explanatory Memorandum without reference, in particular, to s 6(1)(b) and to the way in which ss 6(1)(d) and (1C) are drafted. Section 6(1C) expressly provides that it is “For the purposes of paragraph (1)(d)” that travel between an employee’s place of residence and place of work is not to be taken at the direction or request of the Commonwealth or a licensee. “Direction or request of the Commonwealth” is the wording of s 6(1)(d) and the effect of s 6(1C) is to ensure that an employer’s or licensee’s requirement that an employee attend his or her usual place of work cannot be regarded as a direction or request to travel for the purpose of employment. In that way, an employee’s usual journey from place of residence to place of work is not compensable within the meaning of s 6(1)(d). It must be remembered, however, that s 6(1)(d) is one of the ten paragraphs extending the ordinary meaning of the expression “arising out of, or in the course of, … employment” used in the opening words of s 6(1). A qualification to one of those express extensions does not qualify the opening words.

The parties also agreed in Barnard that, if Ms Barnard’s fall occurred at her “place of work” within the meaning of s 6(1)(b), she was entitled to compensation under the SRC Act. They also agreed that if her “… fall occurred whilst she was travelling between her ‘place of work’ and her residence, she is not entitled to compensation by reason of s 6(1C) of the Act.”[96] There is no reference to the reasoning behind this statement of the law. The case was decided on the basis of whether Ms Barnard sustained her injury at her “place of work”.
[96] [2008] AATA 507 at [7]
In Sintiris, Miss Shanahan was concerned with s 6(1)(c) of the SRC Act. Ms Sintiris was injured when she tripped on a worn or cracked concrete paver and twisted her knee. She tripped as she approached steps leading to the entrance to her workplace after smoking a cigarette in a designated smoking area during her afternoon 15 minute break. Miss Shanahan found that break to be “an ordinary recess” in Ms Sintiris’s employment. She also found that Ms Sintiris’s presence in the area where she fell was both at the direction and within the contemplation of her employer, Telstra Corporation. Therefore, her circumstances came within s 6(1)(c) and Miss Shanahan had no need to consider whether the injury also came within the ordinary meaning of the words “arose out of, or in the course of, … [an employee’s] employment”.
Application of the law to the circumstances in which Mr Ford sustained an injury
There was no suggestion at the hearing that Mr Ford’s injury arose out of his employment but I note that, in order to make a finding to that effect, I 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. Therefore, I find that Mr Ford’s injury did not arise out of, or in the course of, his employment within the ordinary meaning of those words as they are used in s 6(1).
Therefore, I must ask myself whether Mr Ford sustained his injury “in the course of, his … employment” as that term has been interpreted by the High Court and the Federal Court. I do not think that there is any question that Mr Ford’s injury did not “arise out of … his … employment”. If it was not sustained “in the course of” his employment as that expression is used in the opening words of s 6(1), I must also ask myself whether his injury was sustained in any of the circumstances set out in s 6(1) of the SRC Act. They are circumstances that stand alone and, without limiting the ordinary meaning to be given to the expression “arose out of, or in the course of, … [an employee’s] employment”, bring an injury sustained in those circumstances within the compass of that expression.
When Mr Ford fell, he was not at his place of work. The place where he carried out his work was in the Premises leased by CASA and located on Level 13. He had not yet reached Level 13.
Mr Ford was, though, within the confines of the building within which Level 13 and the Premises were located. As an employee of a tenant in the building, Mr Ford was permitted to use the stairs but so too were members of the general public without restriction. Was Mr Ford using the stairs for reasons incidental to his employment? If he was, then he was injured in the course of his employment. In some of the authorities, the question would seem to be framed in terms of whether CASA had control of the stairs. In this case, it did not for members of the public having no business with CASA and no wish to go to Level 13 at all could, and do, use the stairs. They are not included in the area of the building leased by CASA. Mr Ford could have chosen to reach the Premises by a different route.

Control of the area in which an injury was sustained is not a determinative factor. The authorities show that an injury may be regarded as being sustained in the course of employment even when the employer does not necessarily have control over the area let alone ownership. The cases of McCullum v Northumbrian Shipping Company Ltd and Ayling are two earlier examples of cases in which an injury was found to have occurred in the course of an employee’s employment. Victorian Workcover Authority v Jones Lang Lasalle (Vic) Pty Limited is a much more recent example.
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. It is not a case such as Foster v Edwin Penfold & Co Pty Limited in which there was a single passage or path by which the Premises could be reached. There was more than one way to reach the lift that would take Mr Ford to Level 13.
Does Mr Ford come within the specific circumstances set out in s 6(1)? He had never reached his place of work and his injury was not sustained for the purposes of his employment. As he was on his way to the Premises first thing in the morning, he cannot be regarded as having been temporarily absent from his place of work during an ordinary recess. Therefore, his circumstances do not come within s 6(1)(b) of the SRC Act. For the same reason, he was not temporarily absent from his place of work undertaking an activity associated with his employment. He was required to attend his place of work but his travelling to work in the morning so that he could take up his duties for the day could not be said to amount to an activity at the direction or request of CASA just as his absence overnight could not amount to his being “temporarily absent” from his place of work. Therefore, I find that Mr Ford’s circumstances do not come within those set out in s 6(1)(c). Such a journey from his place of residence to his place of work is expressly excluded from the scope of s 6(1)(d) by s 6(1C). Therefore, his injury was not sustained in circumstances set out in s 6(1)(d). None of the other circumstances in s 6(1) could apply. Sections 6(1)(e) to (j) do not apply for Mr Ford was travelling for reasons connected neither with his education nor his health.
For the reasons I have given, I have decided that Mr Ford’s injury did not arise out of, or in the course of, his employment. Therefore, I have affirmed the decision made by Comcare on 27 July 2016.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

......................[sgd]..................................................
Associate
Dated: 21 March 2018

Heard:

7 September 2017

Counsel for the Applicant:

Solicitor for the Applicant:

Counsel for the Respondent:

Mr Mark Carey

Mr Timothy Dionyssopoulos
Maurice Blackburn

Mr Joel Harris

Solicitor for the Respondent:

Ms Carmen Basilicata
Comcare

2 ALD 60 at 419; 589; 68-69; per Bowen CJ and Deane J