GEORGINA THYMIANOS and COMCARE

[2009] AATA 82

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 82

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3013

GENERAL ADMINISTRATIVE DIVISION		)
Re		GEORGINA THYMIANOS

Applicant

And COMCARE

Respondent

DECISION

Tribunal MS N BELL, Senior Member

Date9 February 2009

PlaceSydney

Decision The decision under review is affirmed

....................SGD..........................

MS N Bell  

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION- Whether Applicant is entitled to compensation for a right shoulder and whiplash injury that did not arise out of, or in the course of the Applicant’s employment within the meaning of section 5A and 6 of the Safety, Rehabilitation and Compensation Act 1988 – decision under review affirmed.

Safety, Rehabilitation and Compensation Act 1988

Kavanagh v Commonwealth (1959) 103 CLR 547

Mendez v Telstra Corporation Limited (1998) 147 FLR 394

REASONS FOR DECISION

9 February 2009 MS N BELL, Senior Member        

1.      The facts relevant to this application are not in dispute.

2.      Ms Thymianos is a quarantine officer employed by the Australian Quarantine and Inspection Service.  On 2 January 2008, she was injured at work and made a successful claim for compensation for injury to her right knee.  Following medical certification as unfit until 7 January 2008, she made an appointment to see her General Practitioner, Dr C Meyerowitz, to obtain medical clearance for suitable duties, as required by her employer as a precondition to her return to work.

3.      Ms Thymianos travelled from her home to the doctor’s surgery.  As she was parking her car on the roadway outside the surgery, her car was hit from behind by another vehicle.  The accident occurred at 11.35 am on 7 January 2008 and Ms Thymianos was due to commence her shift at 12.30p.m.

4.      As a result of the car accident, Ms Thymianos’ right shoulder and neck were hurt and she was certified unfit for work until 18 January 2008.  She claimed compensation and Comcare denied liability on the basis that her injuries did not arise out of, or in the course of, her employment within the meaning of sections 5A and 6 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).  This raises the sole issue in this application. 

the legislative framework

5.      In April 2007, the Act was amended to remove the “journey” provisions of the Act, that is, those provisions which extended the definition of “injury” to include injuries sustained not at the workplace or during working hours but whilst travelling from a person’s residence to the person’s place of work.

6.      Section 5A of the Act provides for a definition of “injury”, for the purposes of the Act, as, among other things, an injury that arises out of, or in the course of, employment.

7.      Section 6 of the Act expands the definition in section 5A to include travelling between or being at certain places.

8.      The question in this application is whether the circumstances of Ms Thymianos’ accident fall within either the definition of “injury” in section 5A or are encompassed by the extending provisions of section 6.

section 5A – arising out of or in the course of employment

9.      I agree with the submission of Mr Elliot, for Comcare, that Ms Thymianos’ accident occurred outside her hours of duty (she was scheduled to commence work one hour after the time at which the accident occurred) and so the incident was not “in the course of” her employment (Mendez v Telstra Corporation Limited (1998) 147 FLR 394).

10.     I also agree with Mr Elliot’s submission that, for the incident to be said to arise out of her employment; there must be a causal connection between Mr Thymianos’ employment and the incident (Kavanagh v Commonwealth (1959) 103 CLR 547).  It is true that had she not been going to the doctor’s surgery to meet the requirement that she obtain clearance before she resumed work, she would not have been on the roadway at that particular place and time.  However, there was no feature of her employment, including the requirement that she obtain certification before recommencing duties, that caused the accident.  Her presence on the roadway at that particular time did not cause the other vehicle to drive into her.   Her being there at that time was a “coincidental circumstance”, as Mr Elliot submitted, and not a causal factor.  Similarly, the earlier incident from which she had recovered and sought medical clearance, did not cause the accident merely because it was the first step on a path towards her being at that position on the roadway at that time.  I note the passage from Fleming, J.G, The Law of Torts, 5^th edition (1977) at page 181 to which Mr Elliot referred me and which supports this view.

11.     Having reached this conclusion, I must now look to the extending provisions of section 6 of the Act.

section 6 – travelling to or being at a place

12.     Three paragraphs of section 6 are relevant to the circumstances of Ms Thymianos’ accident.  They are sections 6(1)(d), (f)(i) and (g)(i) :

6(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:

…

(d)       while the employee was, at the direction or request of the Commonwealth or a licensee, travelling for the purpose of that employment; 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

…

(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 …

13.     Mr Elliot submitted that the words “at a place”, in section 6(1)(f)(i), indicate a particular location and not, as when a person is travelling, locations between places, such as, in this case, the roadway – even the roadway outside the doctor’s surgery.  I agree.  The distinction made in the section between being “at a place” for certain purposes and “travelling between” certain places (section 6(1)(g)) supports this submission.  Ms Thymianos, who was not yet at the relevant place when her accident occurred, is not assisted by section 6(1)(f)(i) of the Act.

14.     In relation to section 6(1)(g)(i), Ms Thymianos was not travelling between her employer’s place of work and the doctor’s surgery.  Rather, she was travelling between her residence and the doctor’s surgery.  This section does not assist her.

15.     At first sight it would appear that section 6(1)(d) of the Act is of assistance to Ms Thymianos.  However, section 6(1C) qualifies section 6(1)(d) by excluding travel between an employee’s residence and her usual place of work.  In addition, section 6(2) provides that in paragraph (1)(d) a reference to an employee travelling does not include travelling to or from a place mentioned in sections 6(1)(e) and (f).  That includes a place for the purpose of obtaining a medical certificate.  It follows that section 6(1)(d)  does not assist Ms Thymianos.

conclusion

16.     The circumstances of Ms Thymianos‘ accident in January 2008 do not fall within the definition of an injury in section 5A of the Act, either on the basis of the accident arising out of, or in the course of, her employment or by the operation of the extending provisions of section 6.  This is so notwithstanding that she was, at the time of her accident, attempting to meet a precondition of her return to her duties.  I appreciate the application of the law to her circumstances may strike her as unfair and will certainly be disappointing, particularly given she was attempting, at the time of the accident, to resume her duties. 

decision

17.     The decision under review is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL, Senior Member

Signed:         ..................................SGD...................................................
  Associate: Felicia Daniele

Date/s of Hearing  17 December 2008
Date of Decision  9 February 2009
Solicitor for the Applicant          Self-Represented
Counsel for the Respondent     Mr Grant Elliott
Solicitor for the Respondent     Australian Government Solicitors