Gibson and ASP Ship Management Pty Ltd
[2004] AATA 947
•13 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 947
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/741
GENERAL ADMINISTRATIVE DIVISION
Re: CRAIG ASHLEY GIBSON
Applicant
And: ASP SHIP MANAGEMENT PTY LTD
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 13 September 2004
Place: Melbourne
Decision:The Tribunal varies the decision under review to the extent that it finds the applicant's injury did not occur in the course of his employment with the respondent.
The Tribunal decides the respondent is not liable to pay compensation to the applicant for periods of incapacity, repatriation, and medical and like expenses.
(sgd) E.A. Shanahan
Member
SEAFARERS COMPENSATION – injury arising from employment – ordinary recess – serious and wilful misconduct – unreasonably submitting to an abnormal risk of injury
Seafarers Rehabilitation and Compensation Act 1992 ss 9(1) (2)(a), (2)(b), 12, 26(1), (2), (3)
Navigation Act 1912 (as amended)
Casarotto v Australian Postal Commission (1989) 17 ALD 321
Gregory v Comcare Australia (1997) 72 FCR 196
Hatzimanolis v A.N.I. Corporation Limited (1992) 173 CLR 473
Henderson v Commissioner of Railways (Western Australia) (1937) 58 CLR 281
Jones v Dunkel (1959) 101 CLR 298
Landers v Dawson (1964) 110 CLR 644
McDonald v Director-General of Social Security (1984) 1 FCR 354
Re Campbell and Australian Postal Commission (1988) 15 ALD 705
Re Crook and Comcare (2001) 64 ALD 781
Re Elvin and Comcare (1998) 51 ALD 706
Re Maynard and Comcare (2000) 63 ALD 315
Re Moore and Comcare (AAT 11427, 24 October 1996)
Re Mulligan and Commission for the Safety, Rehabilitation and Compensation of
Commonwealth Employees (1995) 36 ALD 699
Re Richardson and Comcare (1997) 46 ALD 440
Re Taylor and ASP Shipping Management [2000] AATA 254
Schmid v Comcare (2003) 77 ALD 782
Taylor v Stapley (1954) 90 CLR 1
The Commonwealth v Oliver (1962) 107 CLR 35
Thurn v Ireland (1997) 14 NSWCCR 737
Whittingham v The Commissioner of Railways (W.A.) (1931) 46 CLR 22
REASONS FOR DECISION
13 September 2004 Miss E.A. Shanahan, Member
1. This is an application by Craig Ashley Gibson (the applicant) for review of a decision by a delegate of ASP Ship Management Pty Ltd (the respondent) dated 26 June 2003. The respondent denied liability, under the Seafarers Rehabilitation and Compensation Act 1992 (the Act), due to serious and wilful misconduct and, in the alternative, due to the applicant voluntarily and unreasonably submitting to an abnormal risk of injury. On 27 March 2003 the respondent made a determination that it was not liable to pay compensation to the applicant. On 25 June 2003, at the request of the respondent, an officer of Comcare Australia provided a report to assist in the respondent's reconsideration of the determination made on 27 March 2003. On 26 June 2003 the respondent affirmed the determination of 27 March 2003 and also accepted and adopted the Findings and Recommendation made by Comcare Australia on 25 June 2003. The Tribunal notes the reviewable decision had stated that the applicant had dived off Station Pier at approximately 2:00 a.m. on 18 June 2001. This was later corrected. The applicant had dived into shallow water at the beach at Port Melbourne.
2. The applicant lodged an application for review to the Administrative Appeals Tribunal on 14 July 2003, some two years after the date of the injury. His claim for compensation had been lodged on 9 January 2003.
3. The applicant was represented by Mr E. White of counsel, instructed by Ryan Carlisle Thomas, lawyers, and the respondent was represented by Mr J. Lenczner of counsel, instructed by Middleton, lawyers. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents), which were admitted into evidence as Exhibit A1. In addition, the applicant tendered the report of Dr B. Einoder dated 5 January 2004 (Exhibit A2), the applicant’s statement dated 20 October 2003 (Exhibit A3) and the statement of Ms S. Hayman dated 11 September 2003 (Exhibit A4).
4. The parties agreed that the applicant had suffered a fracture of the sixth thoracic vertebra, from which he has now recovered and did not claim any permanent incapacity or disability.
5. After some argument, the parties agreed the issues were. first, whether the injury was incurred in the course of the applicant’s employment; secondly, if this was so, whether the applicant’s conduct amounted to serious and wilful misconduct due to alcohol consumption; and thirdly, whether the applicant had unreasonably submitted himself to an abnormal risk of injury.
BACKGROUND TO THE APPLICATION
6. The applicant was born on 19 January 1976. By letter dated 7 May 2001, the applicant was offered a position as a third officer (deck officer) with the respondent (T3 p10). The letter also detailed the terms and conditions of employment. On 12 June 2001 he accepted the offer of employment.
7. On 14 June 2001 the applicant joined the crew on the Spirit of Tasmania. On 17 June 2001, the applicant worked aboard the Spirit of Tasmania until 2300 hours (trans p10). He had transited aboard the ship from Devonport to Melbourne earlier that day, arriving at approximately 1030 hours. From 1200 hours, he was off duty until he resumed work at approximately 1900 hours. He worked the bay cruise from this time until approximately 2230 hours and then handed over his duties to the "passive watch", as of 2300 hours on 17 June 2001. He was required to next report for duty at 0800 hours on 18 June 2001.
8. Having ceased duty on 17 June 2001, the applicant retired to the Officers’ Bar where he had one glass of beer and then left with other crew and franchise operators for The Elephant & Wheelbarrow Hotel in St Kilda. On arrival at the hotel he ordered one beer, drank a "mouthful" and then went to the assistance of an injured patron of the hotel. This watchful assistance was estimated to be between one hour and one and a-half hour’s duration. Once an ambulance had arrived at the hotel and the injured man transported to hospital, the applicant returned to the hotel bar. He then drank 2 or 3 beers in what appears to be a timeframe of 30 minutes.
9. The applicant and his companions left the hotel to return, by taxi, to Station Pier. Having alighted from the taxi short of the pier, they elected to take a swim. The applicant had not previously swum at this beach, although his companions had done so. Two of his companions (Ms S. Hayman and Mr S. Holt) had entered the water and encouraged the applicant to join them. Mr Holt was sitting in the water submerged to his armpits. The applicant stated he entered the water intending to dive over Mr Holt, executing a flat, i.e. superficial, dive, but struck Mr Holt's shoulder. This altered his trajectory, resulting in him diving into a shallow sand bar and sustaining a fracture of the sixth thoracic vertebra. The applicant was off work for a period of four months.
10. The applicant continues to work as a seafarer albeit with another employer. His application for compensation was lodged some 18 months after the event, although he sought legal advice early in 2002.
EVIDENCE BEFORE THE TRIBUNAL
Mr Craig Gibson
11. Mr White tendered the applicant’s written statement of 20 October 2003 (Exhibit A3). The applicant outlined the events of 17 and 18 June 2001. He confirmed that he had worked the Spirit of Tasmania Bay Cruise in Melbourne with the cruise terminating at Station Pier at approximately 2230 hours. He said he then assisted in tying up and securing the vessel, and reported to the Master that the vessel was secure. He handed over to an officer on passive watch by radio. The applicant explained that the officer on passive watch was on‑call, rather than active operational duty, and would deal with any urgent matters should they occur. The applicant said that following the handover, "…the rest of us could knock off and do as we please" (trans p15).
12. The applicant said he had changed his clothes and then gone to the Officers' Bar, where he had one beer in the company of Ms Hayman, Mr Holt, the first mate, Mr O'Loughlin, and a number of engineers. They had discussed going to The Elephant & Wheelbarrow sand, if so, whether they would go swimming on the way back to Station Pier. The applicant, Ms Hayman, Mr O'Loughlin and Ms Haas had travelled by taxi to the hotel where they found IR (integrated rating) Gerry Hughes who had arrived before them.
13. The applicant said he ordered a beer but had had only one sip when he and Ms Hayman noticed an injured man bleeding from the head and mouth outside the bar. Ms Hayman and the applicant went to his assistance at approximately 2330 hours and waited for an ambulance to arrive. To his recollection, they had spent at least an hour caring for the injured man and returned to the hotel bar between 0030 and 0100 hours. On his return, he said he drank "Probably two or three beers…no more than three" (trans p18), and left the hotel at about 0130 hours (trans p18). A group of five persons (the applicant, Mr Holt, Ms Hayman, Mr Hughes and Ms Haas) went, by taxi, to the beach adjoining Station Pier. The applicant described the beach area as "…reasonably well lit…There's lights along Station Pier …also it was a fairly full moon (trans p18). The applicant, Mr Holt and Ms Hayman went for a swim. Mr Holt was either kneeling or sitting in the water, up to the level of his armpits. The applicant said he was standing in the water to his knees (he is 6 foot 2 inches tall) when he decided to dive over Mr Holt's shoulder in a flat dive. In so doing, he caught his foot on Mr Holt's shoulder, was upended and dived into a sand bar hitting his head. In the company of the others, he had walked back to the Spirit of Tasmania, went to the recreation room where he, Mr Holt and Ms Hayman discussed the evenings events. He was feeling sore and it was suggested he take a breathalyser test, have a shower and go to bed. The applicant breathalysed himself on the machine in the Chief Engineer's office and noted the reading to be 0.04. There was no print out of the reading, and no one had witnessed him perform the test.
14. At Mr Lenczner's request, the applicant outlined his activities and work commitments on 17 June 2001. He said the Spirit of Tasmania had tied up on the morning of the 17th. All passengers and cargo were discharged by approximately 1000 hours. He continued to work until midday when he "knocked off" (trans p21). Between 1200 and 1900 hours he was off duty and resumed work at 1900 hours for the bay cruise. His shift was meant to end at 2400 hours, but he was able, with approval, to finish at 2300 hours. He said he was to resume work at 0800 hours on 18 June 2001, although no passengers or cargo would be loaded until 1500 hours on the 18th. His shift is normally 0800 hours to 1200 hours with 1200 to 1530 hours being his own time.
15. The applicant corrected the date of the injury in his statement which had said the events had occurred on 18 May 2001. He said this was an error and the correct date was 18 June 2001.
16. Mr Lenczner questioned the applicant at length regarding the amount of alcohol he had consumed on 17 and 18 June 2001, as there were some inconsistencies between his evidence‑in‑chief and the record of his meeting with Mr John McGrath and Mr Tony Rowe (senior officers with the respondent company), whom he had told "he had about four beers" prior to the swim. Eventually, the applicant clarified his statement in evidence to having had one beer in the Officers' Bar, one sip of beer in the hotel before assisting the injured patron and two drinks on returning to the hotel. One of these drinks was not beer, but a whiskey and coke. He agreed with Mr Lenczner that he had not told Mr McGrath and Mr Rowe that he had a whiskey and coke. He explained that he considered all of them to be alcoholic drinks and did not differentiate between beer and spirits. The applicant said no one had witnessed his breathalyser test and he had not told Mr McGrath and Mr Rowe that he had taken the test.
17. Mr Lenczner asked the applicant why he had waited 18 months to lodge a compensation claim. The applicant stated he was initially concentrating on getting well, but had then discussed his situation with others who had advised him to lodge a compensation claim to protect his reputation (against the implication that he was drunk (trans p28)). He had consulted a lawyer in 2002, but did not divulge to the Tribunal the advice he received, nor was he asked what advice he had received.
18. In cross‑examination, the applicant outlined his intention to perform a flat dive as being something he had done on numerous occasions over many years, as he lived across from the beach in Tasmania.
19. The applicant admitted that he had subsequently tried to contact all of his companions on the night in question. Mr Hughes had offered to provide a statement, but this had not eventuated. Ms Haas had said that she had not seen anything and Mr Holt had not been contactable.
Ms Sarah Hayman – evidence by telephone
20. Ms Hayman had provided a statement (Exhibit A4), which she confirmed in evidence‑in‑chief. In 2001, she was employed on the Spirit of Tasmania as manager of a franchised photography shop. Ms Hayman's statement dated the applicant’s injury as 18 May 2001. She corrected this in her evidence‑in‑chief, to 18 June 2001. She agreed with Mr White that she had been swimming with the applicant at Port Melbourne on that date and that she had done so on Sunday nights after bay cruises prior to this incident. To her knowledge, officers on the Spirit of Tasmania were aware of these regular activities and, in particular, Mr Holt, himself an officer, had previously swum at this site.
21. This statement from Ms Hayman resulted in a strong objection from Mr Lenczner, numerous submissions by him and an adjournment, so that Mr Lenczner could seek further instructions based on the question of whether the employer had authorised this activity (trans p37).
22. When the hearing resumed, Ms Hayman essentially confirmed her statement.
23. In cross‑examination, Ms Hayman agreed she could not recall the exact date of the incident leading to the applicant’s injury. She had stated that she had worked on the Spirit of Tasmania for a period of nine months and thought that her contract had been completed in March 2003. Ms Hayman then corrected this to March 2002. She confirmed that she had been present in the Officers' Bar on 17 June 2001, but had no knowledge of what the applicant had to drink. However, all personnel were required to write their drinks in a record book as the bar operated on "an honesty system" (trans p42). Ms Hayman said that she and the applicant had attended an injured hotel patron at the Elephant & Wheelbarrow Hotel for approximately one and a half hours. She also confirmed the applicant’s evidence with regard to the incident while swimming adjacent to Station Pier. She denied that any of them had been …mucking around" (trans p45).
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
24. The respondent confirmed the applicant’s appointment as a deck officer on 10 June 2001, with a homeport of Launceston (T3 p10).
25. Email communications between the respondent and Mr McGrath documented inquires made into the applicant’s behaviour on 18 June 2001 (T5 pp15‑16).
26. The T‑documents contain various Workers Compensation Medical Certificates, all of which were received from Dr P. Merhulik regarding the applicant’s fracture of the sixth thoracic vertebrae and his treatment and progress.
27. Document T17 (at p32) is entitled Consumption of Alcohol Policy (the manual) and outlines the respondent's policy and procedures, in particular, regarding alcohol. The manual records that an officer at the level of the applicant is limited to a blood alcohol level (BAL) of 0.05 while not on duty and 0.03 while on duty. These limitations are placed in accordance with the Navigation Act 1912 (as amended) (the Navigation Act). The manual also addresses the manner in which the Officers' Bar is to be conducted, the recording of alcohol consumed in the bar record book and that the bar is to be opened at the Master's discretion. When the bar is not being used responsibly, the Master may limit access to the bar to times reported in the manual (T18 p39).
28. The Spirit of Tasmania has three breathalyser machines, one of which records the BAL.
THE RELEVANT LEGISLATION
29. Sections 9, 12 and 26 of the Act, insofar as relevantly raised here, provide:
9(1) This section does not limit 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.
(2) An injury is also to be treated as having so arisen, for the purposes of this Act, if it happened:
(a)as a result of an act of violence that would not have occurred apart from the employment, or the performance by the employee of the duties or functions of his or her employment; or
(b)if the employee is a seafarer:
(i)while the employee was on board the prescribed ship on which he or she was employed or engaged; or
(ii)while the employee was temporarily absent from that ship during an ordinary recess in that employment and not at his or her place of residence; or
…
(4) Subsection (2) does not apply if an employee is injured:
(a)while at a place referred to in that subsection; or
(b)during an ordinary recess in his or her employment;
because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.
…
12 …For the purposes of this Act, an employee who is under the influence of alcohol or a drug (other than a drug prescribed for the employee by a legally qualified medical practitioner or dentist and used by the employee in accordance with that prescription) is taken to have engaged in serious and wilful misconduct.
…
26(1) (1)
If an employee suffers an injury that results in his or her death, incapacity for work, or impairment, compensation is payable for the injury.
(2) Compensation is not payable for an intentionally self-inflicted injury.
(3) Compensation is not payable for an injury that is not intentionally self‑inflicted but is caused by the serious and wilful misconduct of the employee, unless the injury results in death, or serious and permanent impairment.
30. The Navigation Act was not relied upon, but it would appear that the relevant sections are s 127(1) and s 132(6).
SUBMISSIONS
The applicant
31. In his statement of facts and contentions dated 22 February 2004, the applicant submitted that the respondent was liable to pay compensation under the Act, as the applicant had not been under the influence of alcohol (within the meaning of s 12 of the Act) and had not engaged in serious and wilful misconduct.
32. Before the Tribunal, the applicant submitted his injury occurred in the course of his employment during an ordinary recess (s 9(2) of the Act). Mr White referred to Re Taylor and ASP Shipping Management [2000] AATA 254, which, in his opinion, had a similar fact basis to the matter before the Tribunal. In Taylor, the seaman was injured while ashore at a nightclub. Senior Member Allen found that Seaman Taylor was injured in the course of his employment, as he was resident on the ship and had permission to go ashore. Senior Member Allen stated that:
…it must have been within the contemplation of the ship’s officer who granted permission, that he would spend at [sic] some of his time at licensed premises.
Mr Taylor was found to have been intoxicated and to have subjected himself to an abnormal risk of injury. Mr Taylor's application was successful purely on the basis that his injury was assessed as serious and, as such, this negated the effect of s 26(3) of the Act.
33. The applicant submitted that, based on the authority of Taylor v Stapley (1954) 90 CLR 1, it was the respondent's responsibility to establish a disentitling factor and that it had not done so.
34. The decision under review had denied the applicant a worker's compensation entitlement by virtue of serious and wilful misconduct by the applicant, namely being under the influence of alcohol. The applicant contended there was no evidence sufficient for the Tribunal to conclude that the applicant was affected by alcohol within the meaning enunciated in Re Elvin and Comcare (1998) 51 ALD 706. The respondent had the opportunity to access the bar records of the Spirit of Tasmania's Officers' Bar and to obtain evidence from officers on the ship, but had not done so. The applicant invited the Tribunal to draw adverse inferences against the respondent for not seeking this evidence (Jones v Dunkel (1959) 101 CLR 298). Ms Hayman had given evidence that the applicant was not affected by alcohol and the applicant himself had recorded his BAL at 0.04.
THE RESPONDENTS' SUBMISSION
35. The respondent denied there was any onus upon it to prove the applicant’s alcohol intake and whether he was intoxicated. The respondent relied upon Casarotto v Australian Postal Commission's (1989) 17 ALD 321, which referred to McDonald v Director-General of Social Security (1984) 1 FCR 354 and the general position, as explained by Professor E. Campbell in "Principles of Evidence and Administrative Tribunals", published in Campbell and Waller (ed), Well and Truly Tried, Monash Studies in Law, 1982. Professor Campbell wrote:
There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometime an incidence of a burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, eg, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate.
In Casarotto, Hill J considered that (at 334):
… ultimately the Tribunal in considering the claim can only act on the evidence before it; to do otherwise would be to commit an error of law.
36. The respondent submitted that the applicant’s injury did not occur during an ordinary recess from work. Ordinary recess has the common meaning of lunch breaks, smokos and similar events. The respondent pointed out that the applicant had clearly stated that he had "knocked off" from work at 2230 hours on 17 June 2001, and he could then, with others, "do as we please" (trans p15). In his evidence, the applicant had said he was not due to resume work until 0800 hours on 18 June 2001. The respondent relied on the authorities of Landers v Dawson (1964) 110 CLR 644, Re Mulligan and Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees (1995) 36 ALD 699, Re Richardson and Comcare (1997) 46 ALD 440, Re Campbell and Australian Postal Commission (1988) 15 ALD 705, Re Maynard and Comcare (2000) 63 ALD 315 for consideration of the meaning of an ordinary recess.
37. The respondent submitted that, with respect to wilful misconduct, the event of swimming at 2:00 a.m. in June was indicative that the applicant's judgement had been affected by alcohol (trans, p61). Mr Lenczner referred to Re Taylor which had only succeeded because the applicant, Mr Taylor, was seriously injured. It was submitted that, in this case, the employer could not have foreseen that an employee would swim in Port Phillip Bay at 2:00 a.m. in the middle of winter.
38. On the issue of taking an abnormal risk, the respondent classified the applicant’s actions as being voluntary, albeit influenced by alcohol (trans, p68) (refer Taylor's case). The respondent reiterated that the authorities referred to agreed that "…The partaking of alcohol…[subjected the applicant] to an abnormal risk of injury" (trans p69). The respondent distinguished the case of Thurn v Ireland (1997) 14 NSWCCR 737, where the applicant was unaware of the risk posed and that of Re Moore and Comcare (AAT 11427, 24 October 1996), where the applicant did not see the cyclist who struck her.
39. The applicant referred the Tribunal to the cases of Schmid v Comcare (2003) 77 ALD 782, Gregory v Comcare Australia (1997) 72 FCR 196 and Re Crook and Comcare (2001) 64 ALD 781 in support of the contention that the injury did not occur in the course of employment. Hatzimanolis v A.N.I. Corporation Limited (1992) 173 CLR 473 was distinguished as it related to employment at a remote site, which Melbourne is not.
40. The respondent submitted that the applicant’s BAL of 0.04 was not recorded or witnessed, nor was any expert evidence led with respect to the significance of such a reading. In addition, the applicant’s evidence with respect to his alcohol intake was conflicting.
41. The applicant and the respondent were permitted by the Tribunal to make further submissions following their main submissions. These further submissions did not assist the Tribunal, but are recorded in the transcript from pages 79 to 87.
42. The only relevant concession arising from these further submissions was that Mr White constricted the relevant period of employment to the time the applicant was required to be in the Port of Melbourne – some 30 hours (1000 hours on 17 June 2001 to 1600 hours on 18 June 2001), as opposed to his initial submission that the period of employment was for the term of the applicant’s contract.
CONCLUSION AND REASONS FOR CONCLUSION
43. The Tribunal has identified the issues as being
(a)did the injury occur in the course of employment?
(b)if so, did the applicant disentitle himself to compensation by virtue of
(i)wilful misconduct, in this case alcohol consumption, or
(ii)the assumption of an abnormal risk; and
(c)was the sustained injury of such a severity to override the disentitlements as provided in the Act?
44. Based on the evidence before it, the Tribunal finds that the applicant suffered a fracture of the sixth thoracic vertebrae outside the course of his employment. In his evidence‑in‑chief the applicant clearly stated that he was off duty from 2230 hours on 17 June 2001 until 0800 hours on 18 June 2001, and could have gone to bed, gone to the movies or, as he did, to a nearby hotel. There was nothing in his job description, nor was any evidence led, that indicated he was compulsorily required to return to the Spirit of Tasmania to sleep prior to resuming duties at 0800 hours the next day. There is no evidence to indicate he could not spend the night at a hotel, boarding house or with friends, as long as he is on duty at 0800 hours the next day. The Tribunal can only conclude that, between these hours, the applicant was not required to be in his place of employment. No doubt, for mainly financial reasons, he preferred to return to the Spirit of Tasmania to sleep. The applicant’s evidence supports the Tribunal’s conclusion, as he said, "…[he could] do whatever he wanted to do" after his shift was completed.
45. The Tribunal has considered all the precedents cited and has relied primarily on Hatzimanolis' case while noting that the facts of the case are very different, in that Mr Hatzimanolis was working at a remote site in Mount Newman for 10 hours per day 6 days per week with a frequent necessity to work on the 7th day of the week. Mr Hatzimanolis was injured in a motor vehicle accident that had occurred on a Sunday when he was not required to work, but he was injured on an expedition encouraged and arranged by a delegate of the employer. In Hatzimanolis (at 478) the High Court of Australia stated that "…the course of employment is not identical with the period of employment of a worker or with the work which that person performs". The Court referred to the judgment of Dixon J in Whittingham v The Commissioner of Railways (W.A.) (1931) 46 CLR 22 at 29 wherein Dixon J stated "…There can no longer be any doubt that the accident must happen while the employee is doing something which is part of or is incidental to his service". The High Court referred to a further decision by Dixon J in Henderson v Commissioner of Railways (Western Australia.) (1937) 58 CLR 281 at 294 wherein Dixon J suggested that the test of whether an injury had been sustained in the course of employment ultimately depended upon whether the workman was doing something which he was "…reasonably required, expected or authorized to do in order to carry out his actual duties". In The Commonwealth v Oliver (1962) 107 CLR 353 the High Court noted that Dixon CJ had found that Mr Oliver's lunchtime custom of playing cricket was a recognised practice during a lunch break when employees were not expected to leave the premises.
46. In Hatzimanolis, the High Court noted (at 480):
Since Oliver, appellate courts have upheld many awards of compensation in favour of workers in cases where injury has occurred away from the place of work, outside of or between working hours, and while the worker was engaged in an activity which is ordinarily performed for private necessity,…
At 482, the High Court said:
A striking feature of the recent cases which have held that an injury occurring in an interval between periods of actual work was within the course of employment is that in almost all of them the employer has authorised, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way. …
At 483, the majority decision of the High Court stated:
…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.
47. Having decided that the applicant’s injury occurred outside his employment, the Tribunal does not need to consider the other issues raised. However, the Tribunal does wish to comment on the evidence of Ms Hayman who, after correcting the incorrect dates of her employment in her statement, said she had been employed as the manager of a franchised photography shop for nine months, ending in March 2003. This indicates she commenced employment on the Spirit of Tasmania in mid‑May 2001. Thus, her statement that swimming at the beach adjacent to Station Pier was, as of 18 June 2001, a regular occurrence cannot be given any weight, given that her statement refers to a period of only four weeks at the most.
48. With respect to the claim of wilful misconduct due to excessive alcohol consumption, the Tribunal is unable to reach a definite conclusion. The evidence suggests that, between 2000 and 0100 hours on 18 June 2001, the applicant consumed 2 or 3 beers and 1 whiskey. He is a large man, being 6 foot 2 inches tall, and of moderate build. On his evidence, his BAL was 0.04 at approximately 0230. No expert evidence was led to prove the likely blood alcohol level at the time.
49. The raised defence that the applicant had not exposed himself to an abnormal risk is supported by his evidence of "flat diving" in the past at his bay side residence. However, he would have little or no knowledge of the terrain of the foreshore of Port Melbourne beach, as he had not swum there before, and had only worked on the Spirit of Tasmania for three days before the injury occurred.
50. The Tribunal affirms the decision under review, but for different reasons. The Tribunal finds that the applicant’s injury did not occur in the course of his employment.
I certify that the fifty [50] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDate of Hearing: 6 July 2004
Date of Decision: 13 September 2004
Counsel for the applicant: Mr E. White
Solicitors for the applicant: Ryan Carlisle Thomas
Counsel for the respondent: Mr J. LencznerSolicitors for the respondent: Middletons
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