Glass v Workers' Compensation Regulator

Case [2020] ICQ 1

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Glass v Workers’ Compensation Regulator [2020] ICQ 001 

PARTIES:

GERALDINE GLASS

(appellant)

v
WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO:

C/2019/10

PROCEEDING:

Appeal

DELIVERED ON:

15 January 2020

HEARING DATE:

8 August 2019

MEMBER:

Martin J, President

ORDER:

The appeal is dismissed.

CATCHWORDS:

WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – ARISING OUT OF EMPLOYMENT – where the appellant was a teacher supervising an overseas school trip – where the appellant voluntarily decided to participate in a rope swing activity and injured herself doing so – where the rope swing was not an authorised or approved activity for either staff or students – whether the appellant’s injury arose out of, or in the course of, her employment – whether the appellant’s injury occurred during an “interval” in her employment – whether the appellant’s use of the rope swing was incidental to her employment

Workers’ Compensation and Rehabilitation Act 2003, s 32

CASES:

Blackwood v Ziebarth [2016] ICQ 5, cited

Comcare v PVYW (2013) 250 CLR 246, cited

Glass v Workers’ Compensation Regulator [2019] QIRC 046, related

Kavanagh v The Commonwealth (1959-1960) 103 CLR 547, cited

Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519, cited

Waugh v Blackwood (2015) 251 IR 126, cited

APPEARANCES:

SA McLeod QC with RM O’Gorman for the appellant instructed by Holding Redlich

PB O’Neill instructed by the Workers’ Compensation Regulator for the respondent

  1. In November 2016 Geraldine Glass was employed as a teacher by Brisbane Catholic Education (BCE) at the Xavier Catholic College (XCC).

  2. XCC had, for many years, conducted trips for students to Vanuatu to engage in marine studies and cultural exchanges. Ms Glass was, with another teacher, the nominated Tour Leader/Tour Coordinator for the trip conducted in November 2016.  While on the trip she injured her shoulder. 

  3. The question before the Commission was whether she had suffered an injury within the meaning of that term in s 32 of the Workers’ Compensation and Rehabilitation Act 2003. At the relevant time, s 32 defined “injury” in this way:

    “(1)   An injury is personal injury arising out of, or in the course of, employment if –

    (a)for an injury other than a psychiatric or psychological disorder – the employment is a significant contributing factor to the injury;

    …”

  4. The deceptively simple words – “arising out of, or in the course of, employment” – are at the heart of this case. Difficulties in applying these words have frequently been the subject of judicial comment. For example, in Comcare v PVYW,[1] the majority said:

    “[12]Hatzimanolis was not the first occasion on which a general principle has been stated as to how it might be determined whether an employee who has suffered an injury has done so ‘in the course of’ the employee’s employment.  This is understandable.  It has never been suggested that the development of a statement of such a principle is an easy matter.  Its application can prove…

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AGLC
Glass v Workers' Compensation Regulator [2020] ICQ 1
Case
[2020] ICQ 1
Decision Date

CaseChat Overview and Summary

In the case of Glass v Workers' Compensation Regulator, the appellant, Ms Glass, was a teacher who was supervising an overseas school trip to Vanuatu when she injured herself using a rope swing at the Blue Lagoon. The nature of the dispute involved whether Ms Glass's injury arose out of or in the course of her employment with the Brisbane Catholic Education (BCE). The case was heard by the Queensland Industrial Relations Commission.

The legal issues that the court needed to decide included whether Ms Glass's injury arose out of or in the course of her employment and whether her injury occurred during an "interval" in her employment, such as a break or a change in her duties. The court also had to determine whether Ms Glass's use of the rope swing was incidental to her employment as a teacher.

The court's reasoning was based on the principles relating to "interval" cases, which generally concern an injury that occurs between discrete periods of actual work. The court considered whether BCE induced or encouraged Ms Glass to participate in the rope swing activity, and whether her injury occurred while she was engaged in an activity or present at a place. The court found that nobody in any position of authority induced or encouraged Ms Glass to participate in the rope swing activity, and that the approval process for the trip did not include the rope swing activity. The court also found that Ms Glass's use of the rope swing was not incidental to her employment as a teacher, as she did not need to participate in the activity to adequately perform her obligations in supervising the students.

The outcome of the case was that the appeal was dismissed, and Ms Glass was not entitled to workers' compensation for her injury. The court held that her injury did not arise out of or in the course of her employment with BCE, as it occurred during an interval in her employment and was not incidental to her role as a teacher. The court also found that BCE did not induce or encourage Ms Glass to participate in the rope swing activity, and that the risk assessment undertaken in respect of the activity was deficient. The court held that these factors were not relevant to a finding that BCE did not, in fact, induce or encourage participation in the activity.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

The application of the relevant principles proved troublesome in this case and led to the Commission mischaracterising the circumstances surrounding the injury to Ms Glass. Before embarking on a consideration of the relevant legal principles, I will briefly review the factual background.Factual background The trip to Vanuatu took place in the last week of November 2016. Although XCC had already received preliminary approval for the overseas trip from the XCC College Leadership Team, the tour organisers submitted a formal application to a body within the BCE called the International Travel and Advisory Panel (ITAP). ITAP approved the trip subject to some conditions which were satisfied and the group of five adults and 27 students departed Australia on 23 November 2016. On the second day of the trip, a decision was taken to alter the itinerary because the original destination for that day was unsuitable and the group travelled to the Blue Lagoon. The changed itinerary was not the subject of approval by ITAP. The Commissioner found that the decision to go to the Blue Lagoon was made following discussions with staff at the island resort but did not accept that the decision was “a collaborative and professional decision made by five teachers” as claimed by Ms Glass. The Commissioner was “also not persuaded that any meaningful attempt was made by Ms Glass, Mr McQuaid or Ms Freshwater to undertake a risk assessment of the Blue Lagoon, any related swimming activities or the rope swing activity before arriving at the lagoon.” On arriving at the lagoon the teachers observed that there was a knotted rope which was attached to a tree overhanging the lagoon. A person could climb onto an elevated platform, take hold of the knotted rope, swing off the platform over the water, let go of the rope, and fall into the lagoon. The evidence relating to the injury was summarised by the Commissioner in her reasons[2] in this way:“[66]Ms Glass explained she participated in the rope swing activity to develop ‘right relationships with students. It gives them confidence…. also develops an inter-respect between the teachers and the students’. [67]Ms Glass confirmed she was not required to participate in the rope swing in order to adequately perform her obligations in respect of supervising the students. Likewise, Mr McQuaid confirmed there was no condition associated with the supervision of students that required him to swing on the rope. [68]Mr McQuaid confirmed the idea of accessing the rope swing was very much student-driven, with several students actively encouraging him to participate. [69]When it was her turn to swing off the platform, Ms Glass said she held the rope, placed her foot on the knot at the bottom of the rope and swung out. At the point of maximum pendulum swing – about 45 degrees – she said she dropped into the water like most other people would have, but she thought she may have fallen a bit earlier, at which point she felt something ‘go’ in her shoulder. [70]Ms Glass said she put her arm up to relieve the pain, swam over to the side of the lagoon and eventually got out of the water. Upon returning to Erakor Island Resort, she recalled putting ice on her shoulder and strapping it as best she could. Over the next few days she took Nurofen and Panadol to assist with the pain.”[2] [2019] QIRC 046.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Regulator argued:(a)her action in using the rope swing formed no part of her role as a teacher and, in doing so, she was on a “frolic” of her own and, thus, outside the employment relationship; and(b)her employment only provided a background or setting for her injury in circumstances where BCE had not approved, authorised, induced or encouraged her to participate in the rope swing activity.The decision Most of the analysis of the issues thought to be relevant concentrated on the principles relating to “interval” cases. These are the cases which generally concern an injury which occurs between discrete periods of actual work. The principles which have been developed (as in cases such as Hatzimanolis and PVYW) apply where an employee has suffered an injury “but not whilst engaged in actual work”.[3][3] PVYW at [38]. In analysing the facts as she found them to be, the Commissioner appears to have proceeded on the basis that the injury occurred in an “interval”. Reference was made by her to the paragraph in PVYW where the majority said:“[38]The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next enquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. 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.”[4][4] The excerpt set out in the decision is inaccurate. It appears to have conflated the eighth and ninth sentences. The Commissioner then says that “the relevant activity to be considered is the rope swing activity engaged in by Ms Glass, rather than her presence at the Blue Lagoon or in Vanuatu.” That is followed by the statement that “the question to be considered by the Commission in this appeal is whether BCE induced or encourage[d] Ms Glass to engage in the rope swinging activity. If the answer to the question be ‘yes’, then the injury is within the course of employment. If it be ‘no’, then it is outside the course of employment.” The Commissioner then went on to consider a number of matters including a finding that nobody in any position of authority induced or encouraged Ms Glass to participate in the rope swing activity. This finding was said to be based particularly with respect to evidence given by Dr Lee and Mr Kearney. They gave evidence about the ITAP guidelines and the approval process. Two of the matters upon which the Commissioner relied in that finding were that approval for the rope swing activity would not have been given had it been sought and the risk assessment undertaken in respect of the rope swing activity was deficient. I cannot, with respect, understand how either of those matters (which are matters of opinion expressed after the event) are relevant to a finding that BCE did not, in fact, induce or encourage participation in the activity. In any event, that is not a vital part of the reasoning process.

Ratio Decidendi

Legal Principle Established

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